EXHIBIT 10.56
SECOND AMENDMENT TO CREDIT AGREEMENT
AMONG
FIRST INVESTORS FINANCIAL SERVICES, INC.,
AS BORROWER
NATIONSBANK, N.A.,
INDIVIDUALLY AS BANK AND AS AGENT,
AND
THE FINANCIAL INSTITUTIONS PARTIES TO
THE CREDIT AGREEMENT,
AS BANKS
Dated as of January 25, 1999
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "SECOND AMENDMENT"),
dated as of January 25, 1999 (the "EFFECTIVE DATE"), is entered into by and
among FIRST INVESTORS FINANCIAL SERVICES, INC., a Texas corporation (the
"BORROWER"), NATIONSBANK, N.A., a national banking association (as successor in
interest to NationsBank of Texas, N.A.), individually and as administrative
agent for the Banks (in its capacity as administrative agent, the "AGENT"), and
the financial institutions now or hereafter a party to the Credit Agreement
(defined below) (the "BANKS").
W I T N E S S E T H
WHEREAS, the Borrower, the Agent, and the Banks made and entered into that
certain Credit Agreement dated as of July 18, 1997, as amended by that certain
First Amendment to Credit Agreement dated effective as of January 1, 1998 (as
amended, the "CREDIT AGREEMENT"), pursuant to which the Banks have agreed to
make certain loans to and for the account of the Borrower;
WHEREAS, the Borrower has requested an amendment of, and the Agent and the
Banks have agreed to amend, certain provisions of the Credit Agreement on the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01 DEFINED TERMS. All capitalized terms that are defined in the
Credit Agreement, but that are not defined in this Second Amendment, shall have
the same meanings as defined in the Credit Agreement. Unless otherwise
indicated, all section references in this Second Amendment refer to the Credit
Agreement.
ARTICLE II
AMENDMENTS TO CREDIT AGREEMENT
Section 2.01 DEFINITION OF COMMITMENT. The definition of "COMMITMENT" is
amended hereby to delete the amount "$6,000,000" and to insert the amount
"$10,000,000" in lieu thereof.
Section 2.02 DEFINITION OF EXCESS SERVICING CASH FLOW. The definition of
"EXCESS SERVICING CASH FLOW" is amended hereby to insert the proviso "; PROVIDED
that "Excess Servicing
Cash Flow" shall not include amounts attributable to ALAC until such amounts
become available to the Borrower in accordance with the terms of the ALAC Credit
Facility" after the word "Agreement" at the end of that definition.
Section 2.03 DEFINITION OF TERMINATION DATE. The definition of
"TERMINATION DATE" is amended hereby to delete the phrase "July 10, 1998" and to
insert the phrase "October 15, 1999" in lieu thereof.
Section 2.04 ADDITIONAL DEFINITIONS. The following definitions are added
hereby to Section 1.01 of the Credit Agreement where alphabetically appropriate:
"ALAC" means Auto Lenders Acceptance Corporation, a Delaware
corporation.
"ALAC CREDIT FACILITY" means that certain Financing Facility, dated
as of October 2, 1998, among FIFS Acquisition Funding Company, LLC, as
Borrower, ALAC Receivables Corp., as Seller, ALAC, as Servicer and Seller,
and Variable Funding Capital Corp., as Lender.
"PLEDGE AGREEMENT (ALAC)" means the Pledge Agreement (ALAC), dated
as of January 25, 1999, between the Borrower and the Agent, and any
amendments, modifications, renewals, or extensions thereof.
Section 2.05 AMENDMENT TO SECTION 2.05(A). Section 2.05(a) of the Credit
Agreement is amended hereby to delete the phrase "three hundred sixty-four
(364)" in the fourth and thirteenth lines of that Section and to insert the
phrase "one hundred eighty (180)" in lieu thereof.
Section 2.06 AMENDMENT TO SECTION 3.09(B). Section 3.09(b) of the Credit
Agreement is amended hereby to insert the phrase "for the ratable benefit of the
Banks" after the word "Agent" in the second line of that Section.
Section 2.07 AMENDMENT TO SECTION 7.08. Section 7.08 of the Credit
Agreement is amended hereby to delete the word "Agent" in the third line of that
Section and to insert the phrase "Majority Banks" in lieu thereof.
Section 2.08 AMENDMENT TO SECTION 7.12(A). Section 7.12(a) of the Credit
Agreement is amended hereby to delete the number "2.0" in the third line of that
Section and to insert the number "1.5" in lieu thereof.
Section 2.09 AMENDMENT TO SECTION 7.13. Section 7.13 of the Credit
Agreement is amended hereby to delete the word "Agent" in the second line of
that Section and to insert the phrase "Majority Banks" in lieu thereof.
Section 2.10 AMENDMENT TO SECTION 8.01. Section 8.01 of the Credit
Agreement is amended hereby to add the following new subsection (o):
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"(o) A default (i) by FIACC of its obligations under the FIACC
Agreement or the Purchase Agreement/FIACC or (ii) by FIARC of its
obligations under the Enterprise Agreement or the Purchase
Agreement/Enterprise,"
Section 2.11 AMENDMENT TO SECTION 8.01(M). Section 8.01(m) of the Credit
Agreement is amended hereby to delete the word "Agent" in the third line of that
Section and to insert the phrase "Majority Banks" in lieu thereof.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.01 CONDITIONS PRECEDENT. The obligation of the Banks to enter
into this Second Amendment is subject to the satisfaction of the following
conditions, each of which shall be satisfactory to the Agent in form and
substance:
(a) LOAN DOCUMENTS. The Agent and each Bank shall have received
multiple counterparts, as requested, of (i) this Second Amendment,
executed and delivered by a duly authorized officer of each party hereto,
and (ii) the Pledge Agreement (ALAC), executed and delivered by a duly
authorized officer of the Borrower.
(b) NOTE. The Borrower shall have executed and delivered a Note,
substantially in the form of Exhibit D to the Credit Agreement, payable to
the order of First Union National Bank, in the principal amount of
$4,000,000.
(c) PLEDGED SHARES. All shares pledged in favor of the Agent (for
the benefit of the Banks) pursuant to the Pledge Agreement (ALAC),
together with duly executed stock powers, shall have been physically
delivered to the possession of the Agent.
(d) FINANCING STATEMENTS. Acknowledgment copies of a proper
Financing Statement (Form UCC-1), duly filed on or before the Effective
Date, naming the Borrower as the debtor and the Agent as the secured
party, or other similar instruments or documents, as may be necessary or,
in the opinion of the Agent, desirable under the UCC of all appropriate
jurisdictions or any comparable law to perfect the Agent's and the Banks'
security interest in all Pledged Collateral in which an interest may be
assigned under the Pledge Agreement (ALAC).
(e) OPINION. A favorable opinion of Xxxx, Xxxxxx & Xxxxx, L.L.P.,
counsel for the Borrower, in respect of the Pledge Agreement (ALAC).
(f) CORPORATE AUTHORITY. The Agent shall have received copies of
resolutions of the Board of Directors of the Borrower authorizing the
execution, delivery, and performance of the Credit Agreement as amended by
this Second Amendment, accompanied by an original certificate of the
Secretary or Assistant Secretary of the Borrower that such resolutions are
true, correct, and complete copies of resolutions duly
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adopted by the Board of Directors and that such resolutions have not been
modified, rescinded, or revoked, and further certifying as to the
incumbency and signature of the officers of the Borrower executing this
Second Amendment and as to the fact that the articles of incorporation and
by-laws of the Borrower have not changed from those furnished pursuant to
Section 4.01(h) of the Credit Agreement.
(g) NO DEFAULT. No Default or Event of Default shall have occurred
and be continuing as of the Effective Date of this Second Amendment.
(h) COMPLIANCE CERTIFICATE. A compliance certificate, which shall be
true and correct in the form of Exhibit A to the Credit Agreement, duly
and properly executed by an authorized officer of the Borrower on behalf
of the Borrower, dated as of the last Business Day of the calendar month
immediately preceding the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 REPRESENTATIONS AND WARRANTIES. The Borrower hereby affirms
that as of the date of execution and delivery of this Second Amendment all of
the representations and warranties contained in Article V of the Credit
Agreement are true and correct in all material respects as though made on and as
of the Effective Date of this Second Amendment, except (i) as such
representations and warranties are modified to give effect to the transactions
contemplated by this Second Amendment and (ii) for immaterial deviations.
ARTICLE V
JOINDER
Section 5.01 JOINDER. Upon satisfaction of the conditions precedent set
forth in Article III of this Second Amendment, First Union National Bank shall
become a "Bank" for all purposes under the Credit Agreement and the other Loan
Documents.
ARTICLE VI
MISCELLANEOUS
Section 6.01 FULL FORCE AND EFFECT. The Borrower hereby agrees that the
provisions of the Credit Agreement and each of the other Loan Documents are, and
shall continue to be, in full force and effect as of the Effective Date of this
Second Amendment, and are ratified and confirmed in all aspects.
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Section 6.02 COUNTERPARTS. This Second Amendment may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument and any of the parties hereto may execute this Second Amendment
by signing any such counterpart.
Section 6.03 SUCCESSORS AND ASSIGNS. This Second Amendment will be binding
upon and inure to the benefit of the Borrower, the Agent, and the Banks, and
their permitted successors and assigns, as provided in the Credit Agreement.
Section 6.04 LIMITATIONS. The amendments and modifications set forth
herein are limited precisely as written and shall not be deemed to (a) be a
consent to, or waiver or modification of, any other term or condition of the
Credit Agreement or any of the other Loan Documents, or (b) except as expressly
set forth herein, prejudice any right or rights which the Banks may now have or
may have in the future under or in connection with the Credit Agreement, the
Loan Documents, or any of the other documents referred to therein. In the event
of a conflict between this Second Amendment and any of the foregoing documents,
the terms of this Second Amendment shall be controlling.
Section 6.05 GOVERNING LAW. THIS SECOND AMENDMENT (INCLUDING, BUT NOT
LIMITED TO, THE VALIDITY AND ENFORCEABILITY HEREOF) SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, OTHER THAN THE
CONFLICT OF LAWS RULES THEREOF.
Section 6.06 PRIOR OR EXISTING DEFAULTS. Any Default occurring during the
period prior to and including the Effective Date of this Second Amendment and
continuing shall constitute a Default for all purposes under the Credit
Agreement as amended hereby.
Section 6.07 FINAL AGREEMENT. THIS WRITTEN SECOND AMENDMENT, THE CREDIT
AGREEMENT, THE LOAN DOCUMENTS, AND THE OTHER DOCUMENTS EXECUTED IN CONNECTION
THEREWITH REPRESENT THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES
AND SUPERSEDE ALL OTHER AGREEMENTS AND UNDERSTANDINGS BETWEEN SUCH PARTIES
RELATED TO THE SUBJECT MATTER HEREOF AND THEREOF. THIS WRITTEN SECOND AMENDMENT,
THE CREDIT AGREEMENT, THE LOAN DOCUMENTS, AND THE OTHER DOCUMENTS EXECUTED IN
CONNECTION THEREWITH MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment
to be duly executed as of the day and year first above written.
FIRST INVESTORS FINANCIAL SERVICES,
INC.
By: /s/ Xxxxxx X. Duck
Name: /s/ Xxxxxx X. Duck
Title: Chief Financial Officer
NATIONSBANK, N.A.,
AS AGENT
By: /s/ Xxxxxxxxx Xxxxxxxx
Name: /s/ Xxxxxxxxx Xxxxxxxx
Title: Senior Vice President
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BANKS NATIONSBANK, N.A.
By: /s/ Xxxxxxxxx Xxxxxxxx
Name: /s/ Xxxxxxxxx Xxxxxxxx
Title: Senior Vice President
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FIRST UNION NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxx
Name: /s/ Xxxxxxx X. Xxxxxx
Title: Senior Vice President
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RATIFICATION OF FIFSG
FIFSG hereby expressly (i) acknowledges the terms of the foregoing Second
Amendment; (ii) ratifies and affirms its obligations under the Guaranty
Agreement dated July 18, 1997, executed by FIFSG in favor of the Agent and the
Banks; and (iii) acknowledges, renews, and extends its continued liability under
the Guaranty Agreement and agrees that the Guaranty Agreement remains in full
force and effect with respect to the Indebtedness and other Obligations (as such
terms are defined in the Guaranty Agreement) of the Borrower, as amended.
The foregoing acknowledgment and ratification of FIFSG shall be evidenced
by signing and dating in the spaces provided below.
FIRST INVESTORS FINANCIAL SERVICES
GROUP, INC.
By: /s/ Xxxxxx X. Duck
Name: /s/ Xxxxxx X. Duck
Title: Chief Financial Officer
Date: 1/25/99
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