FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
FIRST
AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
(this
“Amendment”)
is
made as of October 4, 2006 between Palm Beach Multi-Strategy Fund, L.P.
(“Lender”),
whose
corporate address is c/o Links Business Capital L.P., P.O. Box 833519, Nice
Cars
Funding LLC, a Delaware limited liability company (the “Borrower”),
whose
chief executive office is located at 000 Xxxxxxxx Xxxxx, 0xx
Xxxxx,
Xxxxxx, Xxxxx 00000 and The Bank of New York, as collateral agent for Lender
(in
such capacity, the “Collateral
Agent”).
Capitalized terms not expressly defined herein shall have the meanings ascribed
to them in the Loan Agreement (as hereinafter defined).
RECITALS:
WHEREAS,
Lender,
Borrower and Collateral Agent are parties to that certain Loan and Security
Agreement, dated as of September 28, 2006 (the “Loan
Agreement”),
pursuant to which Lender agreed to make loans to Borrowers, in an aggregate
principal amount of up to $75,000,000;
WHEREAS,
Section
7.1 of the Loan Agreement sets forth certain Events of Default under the Loan
Agreement and Section 2.11 of the Loan Agreement sets forth the priority of
distributions with respect to funds on deposit in Collection
Account;
WHEREAS,
Lender,
Borrower and Collateral Agent now desire to mutually amend and modify the Loan
Agreement as more particularly set forth herein to provide for an additional
Event of Default and potential recipient of funds on deposit in the Collection
Account;
NOW,
THEREFORE,
for and
in consideration of the premises and mutual agreements contained herein, the
payment of Ten and No/100 Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree that the Loan Agreement is amended as follows:
1. Additional
Event of Default.
The
following paragraph is hereby added to Section 7.1 of Loan
Agreement:
(r) A
default
by Manchester or NCAC with respect to any promissory note or other obligation
to
make payment to Xxxxxxx Xxxx or Xxxxxxxx Xxxx pursuant to (i) the Share Purchase
and Exchange Agreement, dated September 28, 2006, among Manchester, NCAC, Nice
Cars Capital Acceptance Corporation, a Georgia corporation (“NCCAC”)
and
the shareholders of NCCAC and (ii) the Share Purchase and Exchange Agreement,
dated September 28, 2006, among Manchester, NCOC, Nice Cars, Inc., a Georgia
corporation (“NCI”)
and
the shareholders of NCI.
2. Additional
Recipient of Collection Account Funds.
The
following paragraph is hereby inserted into Section 2.11 of the Loan Agreement
following the paragraph beginning with “Seventh”:
Eighth,
as
Lender may direct the Collateral Agent in writing from time to time, to the
Persons entitled thereto, any amount which Lender determines is outstanding
in
respect of any note or other obligation owed by Manchester, NCAC or any of
their
respective Affiliates to Xxx Xxxxx or Xxxxxxxx Xxxxx; and
In
connection with this revision (i) the “and” currently appearing at the end of
the paragraph beginning with “Seventh”
is
hereby deleted, (ii) the paragraph currently beginning with “Eighth”
shall
now being with “Ninth”
and
(iii) the reference to “eighth”
in
the
final paragraph of Section 2.11 of the Loan Agreement shall instead reference
“ninth.”
3. All
terms, conditions and provisions of the Loan Agreement and the other Loan
Documents shall be and remain in full force and effect as therein written,
as
expressly amended by this Amendment.
4. Borrower
covenants and warrants that there are no defenses, counterclaims or offsets
to
any of the Loan Documents claimed by or known to Borrowers at this date and
that
the Loan Documents, as amended hereby, are in full force and effect, and
enforceable in accordance with their respective terms.
5. This
Amendment shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. This Amendment may be amended
or
modified from time to time but only by a written instrument executed by Lender,
Borrower and Collateral Agent.
6. If
any
provision of this Amendment or the application thereof to any person or
circumstance shall be invalid or unenforceable to any extent, the remainder
of
this Amendment and the application of such provisions to other persons or
circumstances shall not be affected thereby and shall be enforced to the
greatest extent permitted by law.
7. This
Amendment may be executed in multiple counterparts, each of which shall
constitute an original, but all of which together shall constitute but one
instrument.
8. This
Amendment shall be governed by and construed in accordance with the laws of
the
State of New York.
9. In
the
event of any conflict or inconsistency between the provisions of this Amendment
and the provisions of the Loan Agreement, the provisions of this Amendment
shall
govern and control to the extent of such conflict or inconsistency.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have executed this First Amendment to Loan and
Security Agreement on the day and year first set forth above.
| BORROWER: | ||
|
NICE
CARS FUNDING LLC,
a Delaware limited liability company
|
||
| |
|
|
| By: |
Nice
Cars Acceptance Acquisition Co, Inc.,
its
Member
|
|
|
By: /s/ Xxxxxxx Xxxxxx
|
||
|
Name:
Xxxxxxx Xxxxxx
|
||
| Title: Xxxxxxx Xxxxxx | ||
|
LENDER:
|
||
|
PALM BEACH MULTI-STRATEGY FUND, L.P.
|
||
| By: |
PALM
BEACH LINKS CAPITAL, L.P.,
its general partner
|
|
| By: PBL
HOLDINGS, LLC, its general partner |
||
| |
|
By: B. Xxxxx Xxxxx |
|
Managing Director |
||
| By: Xxxxxx X. Xxxxxxx | ||
|
Managing
Director
|
||
|
BANK
OF NEW YORK
as
Collateral Agent
|
||
| |
|
|
| By: | /s/ Xxxxxxx X. Xxxxxx | |
|
Name: Xxxxxxx X. Xxxxxx |
||
| Title: Vice President | ||
