[EXECUTION ORIGINAL]
AMENDMENT NO. 1
This AMENDMENT NO. 1 (this "Amendment"), dated as of April 4, 1997,
is made by and between THE Finance Company, a Virginia corporation ("Borrower"),
and General Electric Capital Corporation, a New York corporation ("Lender").
RECITALS:
A. Borrower and Lender are parties to an Amended and Restated Motor
Vehicle Installment Contract Loan and Security Agreement, dated as of December
20, 1996 (the "Agreement"), which Agreement restated and amended that certain
Loan and Security Agreement, dated September 24, 1992, as amended.
B. Borrower is currently in default under the Agreement, and with
respect to loans from other creditors of Borrower, including NationsBank, N.A.
("NationsBank"), and Lender has agreed to substantially pay off the loans from
Nationsbank to restructure the loans from Lender under the Agreement (the "Loan
Restructure").
C. Borrower and Lender desire to amend the Agreement in
order to, among other things, amend certain covenants contained therein, all on
the terms and conditions set forth in this Amendment.
D. It is the intent of Borrower and Lender that the execution and
delivery of this Amendment shall not effect a novation of the indebtedness
outstanding under the Agreement, but rather, shall constitute the substitution
of certain of the terms and conditions governing payment and performance under
the Agreement, and, except as expressly modified by this Amendment, the
Agreement shall continue, unchanged, in full force and effect.
AGREEMENT:
NOW THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties hereto,
Borrower and Lender agree as follows:
1. DEFINITIONS. Terms used but not defined herein, and
which are defined in the Agreement, shall have for the purposes hereof the
respective meanings set forth in the Agreement.
2. LOAN STATUS. Borrower represents, warrants and agrees
as of the date hereof, that:
(a) as stated in the Lender Interest, Line
Balance and Availability Report dated April 1, 1997, the amount of the
outstanding balance of loans under the Agreement as of such date was
$74,088,989.58;
(b) the Loan and the other Indebtedness are
secured by a security interest granted by Borrower to Lender pursuant to the
Agreement in the Collateral, which Collateral includes without limitation, all
of Borrower's chattel paper including the NationsBank Collateral (as hereinafter
defined) which secures the NationsBank Loan (as hereinafter defined);
(c) Borrower has good and marketable ownership
of the Collateral, and the Collateral is free and clear of all liens, claims,
charges, defenses, counterclaims, offsets, encumbrances and security interests
of any kind or nature, except the Permitted Liens;
(d) Borrower has breached, and is in default
under, the Agreement as described in Schedule 2(d) hereto (the "Acknowledged
Defaults"), and Lender has the right to pursue its remedies under the Agreement
upon an Event of Default and a Pre-Default Event, including the right to declare
all of the Indebtedness immediately due and payable; and
(e) there are, and Borrower has, no claims,
defenses or offsets to the payment and performance of the terms and conditions
of the Agreement.
3. PAYOFF OF NATIONSBANK LOAN.
(a) Borrower represents and warrants to Lender
that:
(i) Borrower has a loan or loans
from NationsBank pursuant to certain Loan and Security Agreements dated as of
December 23, 1994 and August 16, 1995, respectively (together, the "NationsBank
Loan");
(ii) the total balance of all amounts
due under or with respect to the NationsBank Loan on the date hereof is
$13,600,892.36 (the "NationsBank Payoff") as set forth in the payoff letter from
NationsBank, a copy of which is attached hereto as Exhibit 3(a)(ii);
(iii) other than as described in
Exhibit 3(a)(vi), the NationsBank Loan is the only obligation for borrowed money
or otherwise owed by Borrower to NationsBank, and there are no other obligations
of Borrower to NationsBank other than the NationsBank Loan;
(iv) the NationsBank Loan is secured
by certain chattel paper described in Schedule 3.3(a)(iv) attached hereto (the
"NationsBank Collateral");
(v) Borrower has good and marketable
ownership of the NationsBank Collateral, and the NationsBank Collateral is free
and clear of all liens, claims, charges, defenses, counterclaims, offsets,
encumbrances and security interests of any kind or nature, except for the
security interest of NationsBank and any Permitted Lien;
(vi) NationsBank has agreed with
Borrower to accept, as payment in full for the NationsBank Loan, a cash payment
equal to the NationsBank Payoff less $400,000 (the "NationsBank Cash Payoff")
and an unsecured promissory note, in the form attached hereto as Exhibit
3(a)(vi) in the amount of $400,000, payable by Borrower to NationsBank (the
"NationsBank Note"), on the terms and as described in the NationsBank Note;
(vii) NationsBank has agreed, pursuant
to a certain letter attached hereto as Exhibit 3(a)(ii), upon the payment of the
NationsBank Cash Payoff to NationsBank by the Lender, to terminate any lien or
security interest it may have in the NationsBank Collateral or any other
collateral (if any), to deliver the NationsBank Collateral to the possession of
Lender, and to cooperate with the Lender in the Lender acquiring a perfected
first priority security interest in the NationsBank Collateral; and
(viii) the NationsBank Note shall be
unsecured, and shall not be subject to or have the benefit of, any lien or
security interest of NationsBank with respect to the NationsBank Collateral or
the Collateral.
(b) Lender agrees, pursuant to the terms and
upon the effectiveness hereof, to pay to NationsBank the NationsBank Cash Payoff
as an Advance under the Agreement, which Advance shall be subject to the terms
and conditions of the Agreement.
(c) Borrower represents, warrants and agrees
that upon the termination by NationsBank of its security interest in the
NationsBank Collateral upon the payment by Lender of the NationsBank Cash
Payoff, Lender shall have a perfected first priority security interest in the
NationsBank Collateral, and the NationsBank Collateral is Collateral, subject to
all of the terms and conditions of the Agreement and the rights of Lender
thereunder.
(d) Borrower hereby represents, warrants and
agrees that:
(i) it has heretofore granted a lien
and security interest in the Collateral (including the NationsBank Collateral),
which lien and security interest is hereby ratified and confirmed in all
respects and for all purposes and shall continue to secure the performance and
payment of the Indebtedness and all of Borrower's existing and future
obligations to Lender whether arising under or related to the Agreement or
otherwise ("Lender's Existing Security Interest");
(ii) to secure the performance and
payment of the Indebtedness and all of Borrower's existing and future
obligations to Lender whether arising under or related to the Agreement or
otherwise, Borrower hereby grants to Lender a continuing security interest in
and to all of the following property of Borrower, whether now owned or existing
or hereafter arising or acquired and regardless of where located:
Contracts; Contract Debtor
Documents; Contract Rights; payment from Contract Debtor bank
accounts; chattel paper; leases; installment sale contracts;
installment loan contracts; payment from chattel paper obligors;
security deposits; Motor Vehicles (including but not limited to cars
and trucks); certificates of title; contract purchase discounts;
accounts; general intangibles; security interests; collateral
securing chattel paper; dealer agreements; dealer reserves and rate
participation (to the extent that Borrower has an assignable
interest therein); rights of Borrower related to chattel paper,
installment contracts, motor vehicles, and collateral securing
chattel paper; documents; instruments; deposit accounts; electronic
funds transfers; equipment; inventory; parts and accessories for
motor vehicles; payment from account debtor bank accounts; reserve
accounts; insurance policies, and benefits and rights under
insurance policies, which Borrower is solely or jointly the owner
of, insured under, the lienholder or loss payee under, or the
beneficiary of; and all payments and property of any kind, now or at
any time or times hereafter, in the possession or under the control
of Lender, or a bailee of Lender;
accessions to, substitutions for
and all replacements, products and proceeds of, any of the foregoing
property; and
books and records (including,
without limitation, financial statements, accounting records,
customer lists, credit files, computer programs, electronic data,
print-outs and other computer materials and records) of Borrower
pertaining to any of the foregoing property; and
(iii) the foregoing grant of a
security interest is in addition to, and not in substitution of, Lender's
Existing Security Interest described in subsection (i) above, and shall not
modify or affect Lender's Existing Security Interest or the validity or
enforceability thereof.
4. RESTRUCTURING FEE. As consideration for Lender entering
into this Amendment, Borrower shall pay to Lender upon the effectiveness hereof
a restructuring fee in the amount of $150,000.
5. EXPENSES. Borrower shall be responsible for all reasonable costs
and expenses, including without limitation, those of legal counsel of Lender,
relating to this Amendment, the Agreement, and/or the transactions described or
contemplated herein or therein. Borrower shall pay to Lender all such costs and
expenses immediately upon demand by Lender.
6. WAIVER. Lender hereby agrees that this Amendment shall effect
(upon the effectiveness hereof), a waiver of the Acknowledged Defaults. The
Lender's waiver is limited solely to such Acknowledged Defaults, and shall not
suspend, waive or affect any other Event of Default, Pre-Default Event, default
or breach of, any of the Loan Documents, whether the same is prior or subsequent
thereto or whether of the same or a different type.
7. WARRANTS AND REGISTRATION RIGHTS. As additional
consideration for Lender to enter into this Amendment, and as a condition to the
effectiveness hereof, concurrently herewith: (a) TFCEI issues to Lender, and
Lender accepts, a certain Warrant (No. 2) to Purchase Common Stock of even date
herewith in the form attached hereto as Exhibit 6(a) ("Warrant No. 2"), (b)
TFCEI and Lender enter into a certain Allonge to Warrant to Purchase Common
Stock of even date herewith in the form attached hereto as Exhibit 6(b) (the
"Warrant Allonge"), which Warrant Allonge, among other things, amends the
Warrant to Purchase Common Stock, dated December 20, 1996 (as amended by the
Warrant Allonge, the "Warrant"), by decreasing the exercise price and increasing
its term; and (c) TFCEI and Lender enter into a certain Amended and Restated
Registration Rights Agreement of even date herewith in the form attached hereto
as Exhibit 6(c) (the "Restated Registration Rights Agreement"), which, among
other things, grants certain rights to Lender for registration of the shares of
the common stock of TFCEI purchasable under the Warrant and Warrant No. 2.
8. TAX REFUND. As additional consideration for Lender to enter into
this Amendment, and as a condition to the effectiveness hereof, concurrently
herewith Borrower and each of the Guarantors enters into a certain Security
Agreement of even date herewith in the form attached hereto as Exhibit 8 (the
"Refund Security Agreement"), whereby Borrower and each of the Guarantors
pledges to Lender as security for the Indebtedness and their respective
obligations under the Guaranties, and other obligations of Borrower or the
Guarantors to Lender, federal income tax refunds due to such parties, and
provides for the payment to Lender of one such tax refund described therein (the
"Tax Refund"), at which time the security interest in such federal tax refunds
will automatically terminate.
9. PLEDGE OF FCF STOCK. As additional consideration for Lender to
enter into this Amendment, and as a condition to the effectiveness hereof,
concurrently herewith TFCEI enters into a certain Securities Pledge Agreement of
even date herewith in the form attached hereto as Exhibit 9 (the "Stock
Pledge"), whereby TFCEI pledges to the Lender, as security for the Indebtedness,
TFCEI's obligations under the Guaranties to which it is a party, and other
obligations of Borrower or TFCEI to Lender, all of the issued and outstanding
capital stock of FCF (the "FCF Stock").
10. RELEASE OF FCF COLLATERAL AND FCF STOCK.
(a) Borrower represents and warrants to Lender
that FCF intends to enter into and consummate a certain loan transaction with
Hibernia Bank (the "Hibernia Financing") pursuant to a certain commitment letter
attached hereto as Exhibit 10 (the "Hibernia Commitment").
(b) Upon the funding of the Hibernia Financing
(the "Hibernia Funding"), Lender will receive a payment on the Loan of SEVEN
MILLION DOLLARS ($7,000,000). It is anticipated by the parties that the Hibernia
Financing will close and that the Hibernia Funding will occur, not later than
April 30, 1997 (the "Deadline").
(c) Should (i) the Hibernia Funding occur on or
before the Deadline, or (ii) if the Hibernia Funding does not occur by the
Deadline, then upon the closing and funding by FCF of a credit facility
substantially identical to the Hibernia Financing (including, but not limited
to, loan structure, loan amount, collateral, guaranties, repayment terms and
advance rates) in which the Borrower would receive payment on the Loan in an
amount not materially less than $7,000,000, then Lender, pursuant to the Stock
Pledge, shall:
(i) release its security interest in
the FCF Stock subject to the Stock Pledge;
(ii) release FCF from its obligations
under the Guaranties to which it is a party; and
(iii) release the FCF Collateral
subject to the FCF Pledge Agreement.
(d) Upon Lender's release of the FCF Collateral,
Lender agrees to eliminate the covenants pertaining to FCF as it relates to
Section 13.6 and Exhibit 13.6 of the Agreement.
(e) In the Stock Pledge, TFCEI has agreed, upon
any failure of FCF to consummate the Hibernia Financing, to exercise its good
faith best efforts to obtain additional funding for itself and/or its
subsidiaries in amounts equal to those set forth in the financial projections
delivered to Lender in contemplation of this Amendment (and on which projections
Lender has relied) in order to improve and maintain the financial health of
Borrower and TFCEI.
11. LOCKBOX.
(a) On or before April 30, 1997, all Depository
Accounts, and any other accounts through which Borrower receives allotment
payments and other electronic payments, shall be placed in the name of Lender.
(b) Pursuant to the amendment to Section 4.1 of
the Agreement contained in this Amendment, Borrower shall, on or before May 30,
1997, establish a Lockbox for the receipt of Remittances on terms and with a
bank acceptable to Lender.
12. AMENDMENTS TO THE AGREEMENT. The Agreement is amended
as follows:
(a) Section 4.1 is amended by replacing it with
the following:
Section 4.1. CONTRACT PAYMENTS. Borrower
shall direct all Contract Debtors other than those administered by Third Party
Servicers for Pledged Contracts, and all other Persons (including Contract
Rights Payors) who make payments to Borrower relating to Pledged Contracts, to
make, when paying by mail, all payments directly to the Post Office Box or Third
Party Servicers (with respect to Contract Debtors administered by Third Party
Servicers for Pledged Contracts); provided, however, that beginning on May 30,
1997, Borrower shall direct all Contract Debtors other than those administered
by Third Party Servicers for Pledged Contracts, and all other Persons (including
Contract Rights Payors) who make payments to Borrower relating to Pledged
Contracts, to make, when paying by mail, all payments directly to the Lockbox or
Third Party Servicers (with respect to Contract Debtors administered by Third
Party Servicers for Pledged Contracts). In the event Borrower receives any
Remittances, Borrower shall, as soon as possible but no later than the third
(3rd) Business Day following receipt, deposit the Remittances in kind in the
Depository Account. Borrower shall hold Remittances in trust for Lender until
delivery to Lender or deposit in the Depository Account. Borrower shall pay all
expenses associated with the Post Office Box or the Lockbox.
(b) Section 5.0 is amended by replacing it with
the following:
Section 5.0. LENDER ADMINISTRATION. Lender
shall have no liability to Borrower with respect to Remittances received by
Lender, the Post Office Box, the Lockbox, or the Depository Account, other than
to:
(i) apply the
Remittances to the Indebtedness as required by this
Agreement,
(ii) in the event
Remittances are directly received by Lender, Lender
shall provide or cause to be provided to Borrower, a
report of Remittances received by the Post Office Box,
as applicable,
(iii) upon termination of
this Agreement and Borrower's satisfaction of all of its
obligations under this Agreement, during the
effectiveness of the Post Office Box, to assign the Post
Office Box and its contents to Borrower, and
(iv) ensure that there is
a provision in Lender's Agreement with the Lockbox bank
which requires the bank to provide Borrower with a
report of Remittances received by the Lockbox which
itemizes the Remittances by Contract to the extent the
Remittances contain sufficient identifying information.
Lender shall have no
liability to Borrower with respect to any interest or
other earnings which are earned, or could have been
earned, on the Remittances while they are in the Post
Office Box, the Lockbox, the Depository Account, or
otherwise.
(c) Section 6.5 is amended by replacing the last
sentence thereof with the following:
As long as there is a Pre-Default Event, and
after an Event of Default has occurred, all costs, fees and expenses
thereafter incurred by Lender, or for which Lender becomes obligated, in
connection with exercising any of the foregoing powers shall be payable to
Lender by Borrower on demand by Lender and until paid shall be part of the Loan.
(d) Section 6.11 is amended by replacing it with
the following:
SECTION 6.11 FIRST COMMUNITY
FINANCE RECEIVABLES: Borrower agrees that FCF shall pledge its interest in
consumer loan receivables (the "FCF Collateral") to Lender, as collateral for
FCF's Guaranty and the Indebtedness. Such assignment and pledge shall be
documented as set forth in Exhibit 17. The FCF Collateral will not be included
for purposes of calculating the Borrowing Base.
(e) Section 13.6 of the Agreement is amended by
deleting Exhibit 13.6 in its entirety and replacing it with Exhibit 13.6 to this
Amendment.
(f) Section 13.6 is amended by substituting the
following for the first sentence thereof:
Borrower (on a consolidated
basis), FCF and TFCEI (on a consolidated basis) shall maintain the financial and
portfolio covenants listed on Exhibit 13.6.
(g) Section 15.0(B) is amended by replacing it
with the following:
(B) A breach by a Guarantor or an Affiliate
of any representation, warranty or obligation contained in a Guaranty or any
other agreement with Lender (whether or not such agreement is a Loan Document),
including but not limited to the Warrant, Warrant No. 2, the Restated
Registration Rights Agreement, the FCF Pledge Agreement, the Stock Pledge, and
the Refund Security Agreement.
(h) Section 16.0 of the Agreement is amended by:
(i) Adding the following definition
after the definition of "Affiliate":
AMENDMENT NO. 1: That certain
Amendment No. 1 dated as of April 4, 1997 by and between Borrower and Lender,
which amended the Amended and Restated Motor Vehicle Installment Contract Loan
and Security Agreement by and between Borrower and Lender dated December 20,
1996.
(ii) Replacing the definition of
"Available Line" with the following:
AVAILABLE LINE: One Hundred Ten Million Dollars ($110,000,000).
(iii) Replacing the definition of
"Borrowing Base" with the following:
BORROWING BASE: the amount
equal to the lesser of (i) the Available Line or (ii) the sum of (a) fifty
percent (50%) of the Outstanding Principal Balance of all Contracts which are
Credit Builder's Contracts and (b) eighty-three percent (83%) of the Outstanding
Principal Balance of all other Eligible Contracts during the time they are
included in the Borrowing Base pursuant to Section 3.1; provided, however, that,
automatically and without further notice or writing: (1) the advance against all
other Eligible Contracts shall be reduced by three percent (3%) upon the earlier
to occur of (i) the Hibernia Funding or (ii) July 1, 1997, (2) the advance
against all other Eligible Contracts shall be reduced by four percent (4%) upon
the receipt by TFCEI (and/or the other Guarantors or Borrower) of the Tax
Refund, and (3) in the event the Tax Refund is not received by TFCEI (and/or the
other Guarantors or the Borrower) by July 1, 1997, then the advance against all
other Eligible Contracts shall be reduced beginning July 1, 1997 by equal
monthly percentages so that the advance against all other Eligible Contracts
shall not exceed seventy-six percent (76%) upon the last such percentage
reduction on December 1, 1997; and provided further, that if TFCEI (and/or the
other Guarantors or Borrowers) receive the Tax Refund at any time after July 1,
1997 and before December 1, 1997, then the maximum percentage reduction in the
advance rate attributable to the Tax Refund (including any monthly percentage
reductions that may occur beginning July 1, 1997) shall be four percent (4%).
Notwithstanding the foregoing, the advance against all other Eligible Contracts
set forth in (b) above shall in no event: (x) exceed eighty percent (80%) after
July 1, 1997, (y) exceed seventy-six percent (76%) after December 1, 1997, or
(z) be reduced solely by operation of (b) 1, 2 and/or 3 above below seventy-six
percent (76%).
(iv) Adding the following definition
after the definition of "Event of Default":
FCF: First Community Finance, Inc., a Virginia corporation.
(v) Adding the following definition
after the definition of "FCF":
FCF PLEDGE AGREEMENT: That
certain Pledge Agreement by and between FCF and Lender dated December 20, 1996,
as amended by that certain Amendment and Confirmation of Pledge Agreement
between such parties, dated April 4, 1992.
(vi) Adding the following definition
after the definition of "Gross Outstanding Balance":
GUARANTIES: Collectively, that
certain: (i) Guaranty of TFCEI dated December 20, 1996, (ii) Guaranty of TFCEI
of even date with Amendment No. 1, (iii) Guaranty of FCF dated December 20,
1996, (iv) Guaranty of FCF of even date with Amendment No. 1, (v) Guaranty of
TIA dated December 20, 1996, and (vi) Guaranty of TIA of even date with
Amendment No. 1, all made by such respective Guarantors in favor of Lender.
(vii) Adding the following definition
after the definition of "Guarantors":
HIBERNIA FINANCING: This term
has the meaning provided in
Section 10(a) of this Amendment
No. 1.
(viii) Adding the following definition
after the definition of "Hibernia Financing":
HIBERNIA FUNDING: This term has
the meaning provided in Section
10(b) of this Amendment No. 1.
(ix) Replacing the definition of
"Interest Coverage" with the following:
INTEREST COVERAGE: the sum of
Borrower's year-to-date pre-tax income plus Borrower's year-to-date interest
expense, compared to Borrower's year-to-date interest expense, expressed as a
ratio each Accounting Period. For the purposes of calculating Interest Coverage,
any interest expense associated with the Warrant and Warrant No. 2 granted to
Lender shall be added to pre-tax income and not included in interest expense.
(x) Replacing the definition of
"Line Fee" with the following:
LINE FEE: the fee payable
annually by Borrower to Lender. Lender acknowledges receipt of the Line Fee for
calendar year 1997. For the period of calendar year 1998, the Line Fee shall be
equal to forty one-hundredths of one percent (.40%) of the Available Line.
(xi) Replacing the definition of
"Loan Documents" with the following:
LOAN DOCUMENTS: this Agreement,
the Guaranties, the Supplemental Documents, and any and all promissory notes,
security agreements, assignments, subordination agreements, pledge or
hypothecation agreements, mortgages, deeds of trust, leases, contracts and other
instruments and documents now and/or hereafter existing between Lender and
Borrower or any of the Guarantors or Affiliates of the Borrower and/or the
Guarantors, executed and/or delivered pursuant to or in conjunction with this
Agreement, securing or in any other manner relating to any of the Indebtedness.
(xii) Adding the following definition
after the definition of "Loan Documents":
LOCKBOX: The arrangement
established by Lender at a bank designated by Lender for the receipt and
identification of Remittances.
(xiii) Replacing the definition of
"Permitted Lien" with the following:
PERMITTED LIEN: (i) any
security interest or lien at any time granted in favor of Lender; (ii) liens
securing claims of materialmen, mechanics, carriers, warehousemen, landlords and
other similar Persons for labor, materials, supplies or rentals incurred in the
ordinary course of Borrower's business; and (iii) liens resulting from deposits
made in the ordinary course of business in connection with worker's
compensation, unemployment insurance, social security and other similar laws.
(xiv) Adding the following definition
after the definition of "Recoveries":
REFUND SECURITY AGREEMENT: This
term has the meaning provided in Section 8 of Amendment No. 1.
(xv) Adding the following definition
after the definition of "Reserve Requirement":
RESTATED REGISTRATION RIGHTS
AGREEMENT: This term has the meaning provided in Section 6 of Amendment No. 1.
(xvi) Adding the following definition
after the definition of "Statement of Borrowing Base":
STOCK PLEDGE: This term has the
meaning provided in Section 9 of
Amendment No. 1.
(xvii) Adding the following definition
after the definition of "Supplemental Documents ":
TAX REFUND: This term has the
meaning provided in Section 8 of this Amendment No. 1.
(xviii) Adding the following definition
after the definition of "Tax Refund":
TFC: The Finance Company, a Virginia corporation, or Borrower.
(xix) Adding the following definition
after the definition of "TFC":
TFCEI: TFC Enterprises, Inc., a
Delaware corporation.
(xx) Adding the following definition
after the definition of "Third Party Servicer":
TIA: The Insurance Agency, Inc.,
a Virginia corporation.
(xxi) Adding the following definition
after the definition of "VSI Insurance":
WARRANT: This term has the
meaning provided in Section 7 of Amendment No. 1.
(xxii) Adding the following definition
after the definition of "Warrant":
WARRANT ALLONGE: This term has
the meaning provided in Section 7 of Amendment No. 1.
(xxiii) Adding the following definition
after the definition of "Warrant Allonge":
WARRANT NO. 2: This term has
the meaning provided in Section 7 of Amendment No. 1.
(i) Section 2.5 is amended by deleting it in its
entirety.
(j) Article III is amended by adding a new
Section 3.4 as follows:
SECTION 3.4 MINIMUM BALANCE: If the balance of the Loan
drops below $50,000,000 at any time without Lender's prior written consent
during the term of this Agreement, Lender's obligation to make and Borrower's
right to receive Advances hereunder shall (automatically and without notice or
writing) cease within thirty (30) days after the date of such event; and
thereafter, Lender shall have no further obligation to make Advances or any
other extension of credit under this Agreement. Upon such event of the Loan
dropping below $50,000,000, Lender and Borrower shall enter into good faith
negotiations to re-evaluate the credit arrangement under this Agreement.
13. CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENT. The
effectiveness of this Amendment, and the obligations of the Lender hereunder,
are subject to the condition precedent that the Lender shall have received each
of the following, in form and substance satisfactory to the Lender and its
counsel:
(a) Warrant Allonge, executed by TFCEI.
(b) Warrant No. 2, executed by TFCEI.
(c) Refund Security Agreement, executed by
Borrower and all Guarantors.
(d) Stock Pledge, executed by TFCEI, and stock
certificate(s) for FCF Shares, accompanied by duly executed stock powers.
(e) Financing Statements. UCC Financing
Statements with respect to the Collateral (including the NationsBank Collateral)
and the Refund Collateral (as defined in the Refund Security Agreement) shall
have been filed in all appropriate jurisdictions and shall be effective to grant
the Lender a first priority security interest therein at such time as UCC
termination statements releasing NationsBank's security interest are properly
filed in all required jurisdictions.
(f) Evidence of Corporate Existence and
Authority. All documents which Lender may reasonably request relating to the
existence of Borrower, and the Guarantors, and the corporate power of each to
execute, deliver and perform the Amendment and other documents related to the
Loan Restructure (together, the "Transaction Documents") and the validity
thereof, including, but not limited to, a certificate from the appropriate
official of any state in which any is incorporated or is qualified to do
business.
(g) Officer's Certificates. Separate
certificates (dated as of the date of this Amendment) of an appropriate officer
of each of Borrower and the Guarantors certifying:
(i) as to the names and true
signatures of the officers of each authorized to sign the Transaction Documents;
(ii) that, as of the date of this
Amendment and since the closing of the Agreement on December 20, 1996 (the
"Closing"), its Bylaws have not been amended, or, in the alternative, that a
true and correct copy of the same is attached to the officer's certificate as an
exhibit;
(iii) that, as of the date of this
Amendment and since the Closing, its Articles or Certificate of Incorporation
(whichever applicable) have not been amended, or, in the alternative, that a
true and correct copy of the same is attached to the officer's certificate as an
exhibit;
(iv) copies of all corporate action
taken by it (which copies shall be attached to the officer's certificate as an
exhibit), including resolutions of the board of directors authorizing the
execution, delivery, and performance of the Transaction Documents; and
(v) such other matters as Lender may
reasonably request.
(h) Opinion of Counsel for the Borrower. A
favorable opinion of counsel for Borrower, in form and substance satisfactory to
Lender.
(i) UCC Termination Statements, executed by
NationsBank releasing its security interest in the NationsBank Collateral in all
applicable jurisdictions.
(j) Restated Registration Rights Agreement,
executed by TFCEI.
14. CONFIRMATION OF REPRESENTATIONS AND WARRANTIES.
Borrower represents and warrants to Lender that, except for the Acknowledged
Defaults, the representations and warranties contained in the Agreement are true
and correct on and as of the date hereof as though made on and as of such date.
15. INTEGRATION. On and after the date hereof, each reference in the
Agreement to "this Agreement," "herein," "hereunder," or words of similar
import, shall be deemed a reference to the Agreement as amended by this
Amendment. Borrower and Lender agree that, except as expressly modified by this
Amendment, all other terms and provisions of the Agreement shall continue in
full force and effect. No novation is intended. Should there be any conflict
between this Amendment and the Agreement, this Amendment shall control.
16. COUNTERPARTS. This Amendment may be signed in any
number of counterparts, each of which shall be an original, all of which taken
together shall constitute a single integrated agreement with the same effect as
if the signatures thereto and hereto were upon the same instrument. Complete
sets of counterparts shall be delivered to Borrower and Lender for attachment to
the Agreement.
17. SUCCESSOR AND ASSIGNS. The provisions of this Amendment
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, including any successor or assign arising by
operation of law.
18. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the Commonwealth of Virginia.
IT WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date and year first above written.
THE FINANCE COMPANY
By: _________________________
Its: _________________________
GENERAL ELECTRIC CAPITAL CORPORATION
By: _________________________
Its: _________________________
List of Exhibits:
Exhibit 3(a)(ii) - NationsBank Payoff Letter
Exhibit 3(a)(vi) - Unsecured Promissory Note
Exhibit 6(a) - Warrant No. 2
Exhibit 6(b) - Warrant Allonge
Exhibit 6(c) - Restated Registration Rights Agreement
Exhibit 8 - Refund Security Agreement
Exhibit 9 - Stock Pledge
Exhibit 10 - Hibernia Commitment Letter
List of Schedules:
Schedule 2(d) - Acknowledged Defaults
Schedule 3.3(a)(iv) - NationsBank Collateral
EXHIBIT 13.6
To Amendment No. 1 Between
The Finance Company and General Electric Capital Corporation
PORTFOLIO COVENANTS
The covenants outlined below shall be measured as of the end of each
Accounting Period unless stated otherwise and reported to Lender with the
Financial Statement Certificate attached as Exhibit 13.4.
All percentages shall not exceed the following:
Maximum Delinquency Measurement
Fiscal Fiscal
1997 1998
1st Q. 2nd Q. 3rd Q. 4th Q. 1st Q. 2nd Q. 3rd Q. 4th Q.
------ ------ ------ ------ ------ ------ ------ ------
TFC Rolling Average 15.0% 15.0% 14.5% 14.0% 13.5% 13.0% 12.5% 12.0%
Delinquency
FCF Rolling Average 10.00% 12.00%
Delinquency
Maximum Charged Off Losses
1997 1998
---- ----
TFC Rolling Average
Charged-Off Losses 2.00% 2.00%
FCF Rolling Average
Charged-Off Losses 1.50% 2.00%
Maximum Repossession
Inventory
1997 1998
---- ----
TFC Repossession
Inventory 3% 3%
QUARTERLY
Minimum Reserve
Requirement
1997 1998
---- ----
TFC Reserve
Requirement 100% 100%
FCF Reserve
Requirement 100% 100%
Maximum Outstanding
Principal Balance Pledged
Contracts
1997 1998
---- ----
TFC 145,000,000 N/A
(EXHIBIT 13.6 continued)
FINANCIAL COVENANTS
The covenants outlined below shall be measured as of the end of each
Accounting Period and reported to Lender with the Financial Statement
Certificate attached as Exhibit 13.4.
Minimum Net Worth Fiscal Fiscal
1997 1998
TFCEI $28,000,000 29,500,000
TFC $27,000,000* 28,000,000
Maximum Debt Ratio
1997 1998
---- ----
TFCEI 4.1:1 4.0:1
TFC 4.6:1 4.2:1
Minimum Interest Coverage
1997 1998
---- ----
TFC 1.1 1.2
*Provided, however, that the Minimum Net Worth requirement for TFC for fiscal
year 1997 shall be $24,000,000 until such time as the Hibernia Funding has
occurred, at which time it shall immediately and automatically increase to
$27,000,000 and remain at such level for the remainder of 1997.
