Exhibit 10.29
THIRD AMENDMENT dated as of May 28, 1999
(this "Amendment") to the Credit Agreement dated as
of January 7, 1997 (as heretofore amended, the
"Credit Agreement"), among ContiFinancial
Corporation, a Delaware corporation (the "Borrower"),
the Lenders party thereto and Credit Suisse First
Boston, New York Branch, as Administrative Agent.
A. Pursuant to the Credit Agreement, the Lenders have extended
and agreed to extend credit to the Borrower on the terms and subject to the
conditions set forth therein.
B. The Borrower has requested that certain provisions of the
Credit Agreement be amended as set forth herein. The undersigned Lenders are
willing to amend such provisions on the terms and subject to the conditions set
forth herein.
Accordingly, in consideration of the mutual agreements
contained herein and other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. Definitions. Each capitalized term used but not
defined herein shall have the meaning assigned to it in the Credit Agreement as
amended hereby. The principles of construction set forth in Section 1.03 of the
Credit Agreement shall apply equally to this Amendment.
SECTION 2. Amendments of Covenants.
(a) Section 2.09(c). The requirement of Section 2.09(c) of the
Credit Agreement that Loans be prepaid to the extent necessary in order
that the Revolving Credit Exposure will not exceed the Borrowing Base
is deleted.
(b) Section 6.09. The requirement that the Borrower comply
with the financial covenants set forth in paragraphs (a), (b) and (c)
of Section 6.09 of the Credit Agreement is deleted.
SECTION 3. Other Amendments.
(a) Amendment of Section 1.01. Section 1.01 of the Credit
Agreement is hereby amended by
(i) inserting in the appropriate alphabetical order
the following definitions:
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"'Credit Agreement Amount' means, at any time, the
aggregate outstanding principal amount of the Loans.
'Letter of Credit' means the "Letter of Credit" under
and as defined in the Reimbursement Agreement.
'Reimbursement Agreement Amount' means, at any time,
the aggregate principal amount of the Reimbursement Loans plus
any principal of amounts due under Section 2.03 of the
Reimbursement Agreement plus the undrawn amount of the Letter
of Credit.
'Reimbursement Loans' means the "Loans" under and as
defined in the Reimbursement Agreement.";
(ii) deleting the definition of "Reimbursement
Agreement" in its entirety and substituting therefore the
following new definition:
"'Reimbursement Agreement' means the Amended and
Restated Letter of Credit and Reimbursement Agreement dated as
of September 9, 1997, as amended, among the Borrower, the
Participating Banks party thereto, Credit Suisse First Boston,
New York Branch, as Administrative Agent, and Dresdner Bank
AG, New York Branch, as Issuing Bank.";
(iii) deleting "2.375%" in the definition of
"Applicable Rate" and inserting in its place "(a) prior to
March 31, 1999, 2.375%, (b) on or after March 31, 1999, and
prior to June 1, 1999, 2.750% and (c) on or after June 1,
1999, 3.00%", and deleting the proviso in the definition of
"Applicable Rate"; and
(iv) deleting the words "by its terms, or in order to
obtain a necessary consent to such Asset Disposition, or" in
clause (ii) of the definition of "Net Available Cash", and
inserting the words "and approved by the Administrative Agent"
immediately after the words "provided by the seller" in clause
(iv) of such definition.
(b) Amendment of Section 2.07. Section 2.07 of the Credit
Agreement is hereby amended by the insertion therein of the following new
paragraph (d):
"(d) The Commitments will be automatically and
permanently reduced on the date and in the amount of any
prepayment of Loans and cash collateralization of the Letter
of Credit pursuant to Section 2.09(d) or (e)."
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(c) Amendment of Section 2.09. Section 2.09 of the Credit
Agreement is hereby amended by the insertion therein of the following
new paragraphs (d) and (e):
"(d) In the event the Borrower or any Subsidiary
shall receive any Net Available Cash from any Asset
Disposition by the Borrower or any Subsidiary referred to in
subparagraphs (a) through (e) of Section 6.04 involving Triad
Financial Corporation, the Borrower will forthwith apply or
cause the applicable Subsidiary to apply 75% of all such Net
Available Cash to prepay Loans and Reimbursement Loans (and,
after the Reimbursement Loans shall have been repaid in full,
to cash collateralize the Letter of Credit) ratably in
accordance with the aggregate amounts of the Credit Agreement
Amount and the Reimbursement Agreement Amount.
(e) In the event the Borrower or any Subsidiary shall
receive any cash representing the proceeds of any repayment or
prepayment, whether before or after maturity, of loans or
advances made or other credit extended by the Borrower or any
Subsidiary to Triad Financial Corporation, the Borrower will
forthwith apply or cause the applicable Subsidiary to apply
75% of all such cash to prepay Loans and Reimbursement Loans
(and, after the Reimbursement Loans shall have been repaid in
full, to cash collateralize the Letter of Credit) ratably in
accordance with the aggregate amounts of the Credit Agreement
Amount and the Reimbursement Agreement Amount."
(d) Amendment of Section 6.02. Section 6.02 of the Credit
Agreement is hereby amended by the insertion at the end thereof of the
following new paragraph:
"The Borrower will not, and will not permit any
Subsidiary to, enter into any agreement other than as to a
Warehouse Facility (including any amendment of an existing
agreement) that contains any "negative pledge" or similar
provision limiting its ability or the ability of any
Subsidiary to grant, incur or permit to exist Liens on its
properties or assets."
(e) Amendment of Section 6.04. Section 6.04 of the Credit
Agreement is hereby amended by
(i) deleting clause (ii) of the paragraph immediately
following subsection (e) thereof and inserting in its place
"(ii) an amount equal to 100% of the Net Available Cash from
such Asset Disposition is applied by the Borrower to prepay
Loans pursuant to Section 2.06"; and
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(ii) deleting the first sentence of the last
paragraph of such Section only as it applies to any amounts
payable under Section 3(c) of this Amendment.
The amendment effected by paragraph (a) (ii) above shall apply
retroactively to March 31, 1999, and shall be taken into account in
computing all interest accrued or accruing under the Credit Agreement
after such date. All such retroactive payments shall be due no later
than June 30, 1999.
SECTION 4. Payment upon Sale of Borrower. The Borrower hereby
irrevocably agrees that the Commitments will be terminated and all outstanding
Loans paid in full (together with all applicable fees, interest and other
amounts due under the Credit Agreement) upon the purchase by any Person or group
of Persons acting in concert, pursuant to any agreement with the Borrower or any
holders of the Borrower's capital stock, of the Borrower or any controlling
equity interest therein (including pursuant to any merger, consolidation or
similar transaction), and that no cash or other proceeds of any such purchase
and no assets of the Borrower, will be received by any holder of the Borrower's
capital stock in respect of such capital stock prior to such termination and
payment; provided that the foregoing provisions shall not apply if the
Borrower's obligations under the Credit Agreement shall have been
unconditionally and irrevocably guaranteed on terms approved by the Required
Lenders by Residential Funding Corporation, a subsidiary of General Motors
Acceptance Corporation, or any other corporation of established reputation,
rated at least investment grade by at least two nationally recognized rating
agencies, that in either case shall have entered into a definitive agreement
with the Borrower to acquire (by purchase, merger or otherwise) 100% of the
equity interests in the Borrower, subject only to the approval of the
purchaser's board of directors and any necessary regulatory approvals.
SECTION 5. Representations and Warranties. The Borrower represents and
warrants to the Administrative Agent and each Lender that:
(a) The representations and warranties set forth in the Credit
Agreement are true and correct in all material respects as of and with
the same effect as if made on the date hereof (except to the extent
such representations and warranties expressly relate to an earlier
date) after giving effect to this Amendment, and with all references in
such representations to (i) the "Transactions" being deemed to include
the execution, delivery and performance by the Borrower of this
Amendment and (ii) "this Agreement" being deemed to include this
Amendment.
(b) After giving effect to this Amendment, the Borrower is in
compliance in all material respects with all the terms and provisions
contained in the Credit Agreement required to be observed or performed
by it.
(c) After giving effect to this Amendment, no Default has
occurred and is continuing to the best of the Borrower's knowledge.
The foregoing representations and warranties shall survive the execution and
delivery of this Amendment.
SECTION 6. Effectiveness. This Amendment shall become effective when
the Administrative Agent has received counterparts hereof that, when taken
together, bear the signatures of the Borrower and the Required Lenders; provided
that the amendments set forth in Section 2 above shall become effective only
when each of the following conditions shall have been satisfied:
(a) the Administrative Agent shall have received the Amendment Fee (as
defined below) and any fees, expenses or other amounts payable by the Borrower
under Section 8 below for which invoices shall have been submitted to the
Borrower;
(b) the Administrative Agent shall have received an opinion of ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ LLP, in form reasonably satisfactory to the Administrative Agent and
covering such matters relating to this Amendment as the Administrative Agent
shall reasonably request;
(c) the Administrative Agent shall have received such documents and
certificates as the Agent or its counsel may reasonably request relating to the
organization, existence and good standing of the Borrower or the authorization
of this Amendment and any other legal matters relating to the Borrower or this
Amendment, all in form and substance reasonably satisfactory to the
Administrative Agent and its counsel; and
(d) an amendment under the Reimbursement Agreement, substantially in the
form of this Amendment, shall have been executed and delivered by the Borrower
and the "Required Banks" (as defined in the Reimbursement Agreement), and the
amendments set forth therein shall have become effective (or shall become
effective concurrently with the effectiveness of the amendments set forth in
Section 2).
SECTION 7. Amendment Fee. The Borrower agrees to pay to the
Administrative Agent an amendment fee (the "Amendment Fee") in the amount of
$500,000.00 to be distributed to each Lender that executes and delivers a copy
of this Amendment to the Administrative Agent (or its counsel) on or prior to
May 28, 1999, pro rata based on such Lender's Commitment and the total
Commitments of all Lenders entitled to share in the Amendment Fee pursuant to
this Section 7; provided that the Borrower shall have no liability for the
Amendment Fee if this Amendment does not become effective.
SECTION 8. Fees and Expenses. Without limiting the Borrower's
obligations under Section 9.03 of the Credit Agreement, the Borrower agrees to
pay all reasonable out-of-pocket expenses incurred by the Administrative Agent,
the Swingline Lender, the Co-Arrangers identified on the cover page of the
Credit Agreement and their respective Affiliates, including the reasonable fees
and disbursements of all counsel for such parties, in connection with the
preparation, negotiation, execution and delivery of this Amendment and the
evaluation by such parties of their rights and the rights of the Lenders under
the Credit Agreement or any related documentation.
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SECTION 9. Miscellaneous. (a) Except as expressly set forth herein,
this Amendment shall not by implication or otherwise limit, impair, constitute a
waiver of or otherwise affect the rights and remedies of the Lenders or the
Administrative Agent under the Credit Agreement, and shall not alter, modify,
amend or in any way affect any of the terms, conditions, obligations, covenants
or agreements contained in the Credit Agreement, all of which are ratified and
affirmed in all respects and shall continue in full force and effect. Nothing
herein shall be deemed to entitle the Borrower or any Subsidiary to a consent
to, or a waiver, amendment, modification or other change of, any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement in similar or different circumstances. This Amendment shall apply and
be effective only with respect to the provisions of the Credit Agreement
specifically referred to herein. The Borrower hereby ratifies, affirms,
acknowledges and agrees that the Credit Agreement and the Loans thereunder
represent the valid, enforceable and collectible obligations of the Borrower,
and acknowledges that there are no existing claims, defenses, personal or
otherwise, or rights of setoff whatsoever with respect to the Credit Agreement
or the Loans.
(b) As used in the Credit Agreement, the terms "Agreement", "herein
"hereinafter", "hereunder", "hereto", and words of similar import shall mean,
from and after the date hereof, the Credit Agreement as amended by this
Amendment.
(c) Section headings used herein are for convenience of reference only
and are not to affect the construction of, or to be taken into consideration in
interpreting, this Amendment.
(d) THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK.
(e) This Amendment may be executed in any number of counterparts, each
of which shall be an original but all of which, when taken together, shall
constitute but one instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective duly authorized officers as of
the date first above written.
CONTIFINANCIAL CORPORATION,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: VP and Treasurer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SVP & CFO
CREDIT SUISSE FIRST BOSTON, NEW
YORK BRANCH, Individually, and as
Administrative Agent,
By: /s/ ▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES,
By: /s/ ▇. ▇▇▇▇▇▇ Beaudouin
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Name: ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: First Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
CORESTATES BANK, N.A.,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇,
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLAND BRANCHES,
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
DG BANK, Deutsche Genossenschaftsbank,
A.G.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
By: /s/ A.T.D. ▇▇▇▇▇▇
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Name: A.T.D. ▇▇▇▇▇▇
Title: Senior Manager
CREDIT LYONNAIS NEW YORK BRANCH,
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: First Vice President - Manager
SOCIETE GENERALE,
By: /s/ ▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇
Title: Managing Director
COMERICA BANK,
By: /s/ Von ▇. ▇▇▇▇▇▇▇
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Name: Von ▇. ▇▇▇▇▇▇▇
Title: First Vice President
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
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▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK,
By: /s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
PNC BANK NATIONAL ASSOCIATION,
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
Title: Vice President
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH,
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Joint General Manager
