Exhibit 10.1
Amendment No. 9 to Amended and Restated Motor Vehicle Installment Contract
Loan and Security Agreement And Limited Waiver
This AMENDMENT NO. 9 (this "Amendment") is made by and between THE FINANCE
COMPANY, a Virginia corporation ("Borrower") and GENERAL ELECTRIC CAPITAL
CORPORATION, a Delaware corporation ("Lender").
RECITALS
A. Borrower and Lender are parties to an Amended and Restated Motor Vehicle
Installment Contract Loan and Security Agreement dated March 31, 2001, as
amended by Amendment No. 1 dated June 27, 2001, as amended by Amendment No. 2
dated November 29, 2001, as amended by Amendment No. 3 dated March 12, 2002, as
amended by Amendment No. 4 dated August 30, 2002, as amended by Amendment No. 5
dated October 7, 2002, as amended by Amendment No. 6 dated October 18, 2002, as
amended by Amendment No. 7 dated November 27, 2002, as amended by Amendment No.
8 dated December 30, 2002 (as so amended, the "Agreement").
B. Borrower and Lender desire to amend certain provisions of the Agreement
pursuant to the terms set forth in this Amendment.
C. Borrower has informed the Lender that the Borrower expects to receive
from its independent accountants, with respect to the audited financial
statements for the Borrower for fiscal year 2002, an opinion that is qualified
as to going concern (such opinion letter, if any, the "Going Concern Letter").
D. Lender wishes to waive certain Events of Default under the Loan
Agreement that may result from the Borrower's receipt of the Going Concern
Letter, if any, to the extent provided herein.
In consideration of the premises, the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by each of the parties hereto,
Borrower and Lender agree as follows:
1. Defined Terms. Unless otherwise specified herein, all capitalized terms
used in this Amendment shall have the same meaning given to such term(s) in the
Agreement.
2. Amendments to Agreement. Effective as of March 31, 2003, the Agreement
is hereby amended as follows:
(a) The first paragraph in Section 2.5. "Fees." shall be deleted in its
entirety and replaced with the following:
"(A) Borrower shall pay Lender a line fee quarterly as follows: One
Hundred Twenty Five Thousand Dollars ($125,000) due and payable on March
31, 2002, Two Hundred Thousand Dollars ($200,000) due and payable on each
June 30, 2002 and September 30, 2002, Four Hundred Thousand Dollars
($400,000) due and payable on January 2, 2003 and Two Hundred Sixty-Seven
Thousand ($267,000) due and payable on April 1, 2003. The payment of the
line fee is nonrefundable.
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(b) The entire Section 14.9 "Restricted Repayment on Subordinated Indebtedness"
shall be deleted in its entirety and replaced with the following:
"Section 14.9 Restricted Repayment on Subordinated Indebtedness.
Borrower and its Affiliates shall not in the aggregate repay any principal
on its subordinated indebtedness; provided, however, Borrower may repay the
final Two Million Dollars ($2,000,000) installment due and payable to Cigna
Lincoln National in June 2002, One Hundred Seventy Five Thousand Dollars
($175,000) due and payable to Invest TFC, LLC in two installment on March
31, 2002 and June 30, 2002, Three Hundred Thousand Dollars ($300,000) due
and payable on two other promissory notes on July 27, 2002, Three Hundred
Thousand Dollars ($300,000) due and payable on two other promissory notes
on September 3, 2002, up to Eight Hundred Thirty-Four Thousand Dollars
($834,000) due and payable to N X. Xxxxxxxxxx & Sons Limited between
January 1st and May 31st 2003, and Five Hundred Fifty Thousand ($550,000)
due and payable to Life of the South as a result of closing down the First
Community Finance Company operation."
(c) The definition of "Available Line" under Section 16.0 is hereby deleted in
its entirety and replaced with the following:
"Available Line: Forty Million Dollars ($40,000,000) through the sooner of:
a) May 31, 2003; b) the reorganization, exchange, consolidation or merger of
either the Borrower or any of the Guarantors or a similar transaction or series
of related transaction in which fifty percent (50%) or more of the voting power
of the Borrower or any of the Guarantors is disposed of, or a sale or other
disposition (or series of sales or dispositions) of all or substantially all of
the assets of the Borrower or any of the Guarantors; c) the termination of the
Agreement and Plan of Merger (the "Merger Agreement") Among Consumer Portfolio
Services, Inc., CPS Mergersub, Inc. and TFC Enterprises, Inc.; d) the failure of
the stockholders of TFC Enterprises, Inc. to approve the Merger Agreement at the
next annual or special meeting of shareholders; or e) the failure of or refusal
by any regulatory body or other third party to consent to the transactions under
the Merger Agreement that causes the agreement to terminate under any provision
of Article 7 of same."
3. Incorporation of Amendment. The parties acknowledge and agree that this
Amendment is incorporated into and made a part of the Agreement, the terms and
provisions of which, unless expressly modified herein, or unless no longer
applicable by their terms, are hereby affirmed and ratified and remain in full
force and effect. To the extent that any term or provision of this Amendment is
or may be deemed expressly inconsistent with any term or provision of the
Agreement, the terms and provisions of this Amendment shall control. Each
reference to the Agreement shall be a reference to the Agreement as amended by
this Amendment. Nothing contained herein is intended, nor shall be construed to
be a notation or an accord and satisfaction of the outstanding Note or any of
Borrower's obligations to Lender.
4. Limited Waiver. The Borrower's receipt of the Going Concern Letter, if
any, will not by itself be deemed to result in an Event of Default under Section
15.0(K) of the Agreement. Nothing contained in this Section 4 shall constitute a
waiver of any other Event of Default under any provision of the Agreement
including a material adverse effect under Section 15.0(K) thereof. The line fee
payable on April 1, 2003, is being paid, in part, as consideration for the
limited waiver provided in this Section 4.
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5. Borrower Remains Liable. Borrower hereby confirms that the Agreement
and each document executed by Borrower in connection therewith continue
unimpaired and in full force and effect and shall cover and secure all of
Borrower's existing and future obligations to Lender. Nothing contained herein
is intended, nor shall be construed, to be a notation or an accord and
satisfaction of the outstanding liabilities or any of Borrower's other
obligations to Lender.
6. Headings. The paragraph headings contained in this Amendment are for
convenience of reference only and shall not be considered a part of this
Amendment in any respect.
7. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Illinois. Nothing herein shall preclude
Lender from bringing suit or taking other legal action in any jurisdiction.
8. Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute one and the same instrument.
9. Faxed Documents. In order to expedite the acceptance and execution of
this Amendment, each of the parties hereto agrees that a faxed copy of any
original executed document shall have the same binding effect on the party so
executing the faxed document as an original handwritten executed copy thereof.
IN WITNESS WHEREOF, the undersigned have entered into this Amendment
No. 9 as of March 31, 2003.
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
Title: Vice President & Chief Risk Officer Equipment
Management
THE FINANCE COMPANY
By: /s/ Xxxxxx X. Tray
Title: President
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