EXHIBIT 10.2
AMENDMENT NO. 1
TO
LOAN AGREEMENT
AMENDMENT NO. 1 dated and effective as of March 16, 2001, among
XXXXXXXX FINANCIAL, INC. ("Borrower"), BANK ONE, NA, a national banking
association with its principal offices in Columbus, Ohio ("Bank One"), the
financial institutions listed on the signature pages hereof (the "Existing
Lenders") and BANK OF AMERICA, N.A., as agent for the Existing Lenders (the
"Agent").
WHEREAS, the Borrower, the Agent and the Existing Lenders are parties
to a certain Amended and Restated Loan and Security Agreement, dated as of
August 1, 2000 (the "Loan Agreement"), pursuant to which the Existing Lenders
have agreed, subject to the terms and conditions therein set forth, to provide
certain financial accommodations to the Borrower; and
WHEREAS, at the request of the Borrower Bank One has agreed to become a
party to the Loan Agreement and a Lender thereunder, with a Commitment of
$15,000,000;
WHEREAS, the Existing Lenders and the Agent are willing to accept the
addition of Bank One as a party to and a Lender under the Loan Agreement with a
Commitment as aforesaid;
WHEREAS, the Borrower desires that the Lenders amend certain provisions
of the Loan Agreement, and the Lenders are willing, subject to the terms and
conditions hereinafter set forth, to do so;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. CAPITALIZED TERMS. Capitalized terms used but not defined
herein shall have the respective meanings set forth in the Loan Agreement.
SECTION 2. AMENDMENTS
(a) Clause (m) of the definition of "Eligible
Contracts" set forth in Section 1.1 of the Loan Agreement is amended to delete
the word "and" at the end of subclause (vi) and to add the following before the
period at the end of subclause (vii):
"and
(viii) the aggregate number of
Direct Loan Contracts does not exceed 10% of
the total number of Contracts outstanding at
any one time."
(b) From and after the effective date of this
Amendment, Bank One shall become a party to, and a Lender under, the Loan
Agreement, with a Commitment on such effective date equal to $15,000,000.
Accordingly, from and after
the effective date of this Amendment, (i) all references in the Loan Agreement
and the other Loan Documents to "Lender" or "Lenders" shall include Bank One,
all references therein to "Commitment" or "Commitments" shall include the
commitment of Bank One specified herein, all references therein to "Loan" or
"Loans" shall include any loan made by Bank One under the Loan Agreement
pursuant to its Commitment provided for herein and all references therein to
"Obligations" shall include all present and future liabilities, obligations and
debts owing by any Obligor to Bank One under the Loan Agreement or any other
Loan Document, as amended hereby and from time to time hereafter, (ii) the
Maximum Revolver Amount under the Loan Agreement shall be increased by
$15,000,000 (the amount of Bank One's Commitment) from $60,000,000 to
$75,000,000 and (iii) the definition of "Maximum Revolver Amount" set forth in
Section 1.1 of the Loan Agreement is amended to read in its entirety as follows:
"Maximum Revolver Amount" means
$75,000,000."
(c) Section 3.8 of the Loan Agreement is amended
to delete the amount of "$10,000" set forth in the first line thereof and
substituting therefor the amount of "$20,000."
(d) Section 6.6 of the Loan Agreement is amended
to add the following as the second sentence thereof:
"Such examination, audit and
inspection shall be conducted by the Agent
at least once per calendar year."
(e) Section 9.21 of the Loan Agreement is
amended to delete the ratio "5 to 1" set forth in clause (b) thereof and
substituting therefor the ratio "4.75 to 1."
(f) Section 9.29 of the Loan Agreement is hereby
amended to read in its entirety as follows:
"9.29 Credit Guidelines. The
Borrower shall not make any changes in its
Credit Guidelines (a copy of which has been
previously furnished by the Borrower to the
Lenders) without the Lenders' prior written
consent which any of the Lenders may
withhold in its sole and absolute
discretion. The Borrower shall not purchase
or otherwise acquire contracts which do not
comply with the Credit Guidelines."
SECTION 3. EFFECTIVENESS. The amendment made herein shall become
effective when Bank One and the Existing Lenders shall have duly executed and
delivered this Agreement and counterparts hereof shall have been duly executed
and delivered to the Agent by the Borrower.
SECTION 4. COUNTERPARTS AND GOVERNING LAW. This Agreement may be
executed in counterparts, each of which shall be an original, and all of which,
taken together, shall constitute a single instrument. This Agreement shall be
governed by, and construed in accordance with the law of the State of New York.
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SECTION 5. REFERENCES TO LOAN AGREEMENT. From and after the
effectiveness of this Agreement and the waivers and agreements contemplated
hereby, all references in the Loan Agreement to "this Agreement", "hereof",
"herein", and similar terms shall mean and refer to the Loan Agreement as
certain provisions thereof are amended or supplemented by this Agreement, and
all references in other documents to the Loan Agreement shall mean such
agreement as certain provisions thereof are amended or supplemented by this
Agreement.
SECTION 6. INVALIDITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
all applicable laws and regulations. If, however, any provision of this
Agreement shall be prohibited by or invalid under any such law or regulation, it
shall be deemed modified to conform to the minimum requirements of such law or
regulation, or if for any reason it is not deemed so modified, it shall be
ineffective and valid only to the extent of such prohibition or invalidity
without the remainder thereof or any of the remaining provisions of this
Agreement being prohibited or invalid.
SECTION 7. RATIFICATION AND CONFIRMATION. The Loan Agreement is hereby
ratified and confirmed and, except as herein otherwise agreed, remains
unmodified and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
Borrower:
XXXXXXXX FINANCIAL, INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Title: Chairman, CEO & Pres.
Agent:
BANK OF AMERICA, N.A.,
as Agent
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Title: Vice President
Existing Lenders:
BANK OF AMERICA, N.A.
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Title: Vice President
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HIBERNIA NATIONAL BANK
By: /s/ W. Xxxxxxx Xxx Xx.
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Title: Assistant Vice-President
Bank One:
BANK ONE, NA
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Title: Commercial Loan Officer
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