1
EXHIBIT 10.41
AMENDMENT NO. 3 TO
REVOLVING LOAN AGREEMENT
This Amendment No. 3 to Revolving Loan Agreement (this "Amendment
No. 3"), dated as of December 31, 1998, is entered into with reference to the
Revolving Loan Agreement dated as of June 13, 1997 among Central Financial
Acceptance Corporation, a Delaware corporation ("Borrower"), the Lenders party
thereto, and Xxxxx Fargo Bank, National Association, as Agent (as amended from
time to time, the "Loan Agreement"). Capitalized terms used but not defined
herein are used with the meanings specified for such terms in the Loan
Agreement. Section references herein relate to the Loan Agreement unless stated
otherwise.
R E C I T A L S
A. Borrower has advised the Lenders that Borrower and its Subsidiaries
intend to chargeoff approximately $4,000,000 in past due Contracts (the
"Anticipated Chargeoffs") during the Fiscal Quarter ending December 31, 1998.
Borrower represents and warrants to the Lenders that (i) the amounts outstanding
under such Contracts have been reserved previously by Borrower and its
Subsidiaries pursuant to their customary accounting practices and, after giving
effect to this Amendment No. 3, in a manner permitted by the Loan Agreement and
(ii), while having little or no effect on the consolidated balance sheet and
income statement of Borrower and its Subsidiaries, the Anticipated Chargeoffs,
should they occur, will create a significant tax benefit for Borrower and its
Subsidiaries.
B. Notwithstanding the foregoing, one or more covenant violations under
the Loan Agreement might occur as a result of the Anticipated Chargeoffs.
C. In connection with the foregoing matters, Borrower has requested that
the Lenders amend the Loan Agreement on the terms and subject to the conditions
set forth herein.
A G R E E M E N T
Borrower and the Agent, acting with the consent of the Requisite
Lenders pursuant to Section 11.2 of the Loan Agreement, agree as follows:
1. Section 1.1 - Amended Definitions. The definition of
"Borrowing Base" in Section 1.1 is amended and restated to read as follows:
"Borrowing Base" means, as of any date of determination,
an amount determined by the Agent based on the most recent
Borrowing Base Certificate to be equal to the product of (a) Net
Unpaid Balances of Eligible Contracts, less the then applicable
amount of Reserves, if any,
-1-
2
multiplied by (b) seventy percent (70%); provided, however, that
(i) the maximum total amount owing (as opposed to the Net Unpaid
Balance) on Auto Contracts included as Eligible Contracts in
clause (a) shall not exceed $10,000,000, (ii) so long as Premium
Finance is a Borrowing Base Subsidiary, no more than 10% of the
Eligible Contracts included in clause (a) shall constitute
Insurance Premium Contracts and (iii) if on such date the most
recent Borrowing Base Certificate is as of a date more than 45
days from such date, Borrowing Base shall mean such amount as may
be determined by the Agent in its sole discretion.
2. Section 5.17 - Chargeoff Policy. New Section 5.17 is hereby
added to the Loan Agreement as follows:
"5.17 Chargeoff Policy. Effective as of February 1, 1999,
Borrower shall have established and at all times thereafter
maintain, and shall cause each of the other Borrowing Base
Parties to have established and at all times thereafter maintain,
written chargeoff policies regarding their Contracts, pursuant to
which policies Borrower and the other Borrowing Base Parties will
immediately chargeoff the entire amount due on any Contract with
respect to which any payment thereon is more than 150 days past
due, whether as a result of acceleration or otherwise.
3. Section 6.11 - Operating Leases. Section 6.11 is amended and
restated to read as follows:
"6.11 Operating Leases. Permit rentals due under leases of
real or personal Property, other than Capital Lease Obligations
subject to Section 6.9(e), to exceed $4,000,000 in the aggregate
for Borrower and its Subsidiaries for any one Fiscal Year."
4. Section 6.13 - Past Due Receivables Ratio. The text of Section
6.13 of the Loan Agreement is hereby deleted in full and replaced with the text
"Reserved".
5. Section 6.14 - Credit Loss Allowance Ratio. The text of
Section 6.14 of the Loan Agreement is hereby deleted in full and replaced with
the text "Reserved".
6. Section 6.16 - Credit Loss/Net Chargeoff Percentage. The text
of Section 6.16 of the Loan Agreement is hereby deleted in full and replaced
with the text "Reserved".
7. Exhibit C - Compliance Certificate. Exhibit C (Compliance
Certificate) to the Loan Agreement is amended and restated by Annex 1 attached
to this Amendment No. 3.
-2-
3
8. Conditions Precedent. The effectiveness of this Amendment No.
3 shall be conditioned upon the receipt by the Agent of the following documents,
each properly executed by a Responsible Official of each party thereto and dated
as of the date hereof:
(a) counterparts of this Amendment No. 3 executed by all
parties hereto;
(b) a consent and reaffirmation executed by all of the
Guarantors in the form of Exhibit A to this Amendment No. 3; and
(c) written consent of the Requisite Lenders as required
under Section 11.2 of the Loan Agreement in the form of Exhibit B to
this Amendment No. 3.
9. Amendment Fee. In addition to the conditions precedent
specified above, the effectiveness of this Amendment No. 3 shall be further
conditioned upon the receipt by the Agent, for the accounts of the Lenders pro
rata according to their Pro Rata Share of the Commitment, an amendment fee equal
to $25,000.00.
10. Representations and Warranties. Borrower represents and
warrants to the Agent and the Lenders that, after giving effect to this
Amendment No. 3, no Default or Event of Default has occurred and remains in
effect.
11. Recitals Incorporated. The Recitals set forth above are
incorporated into and made a part of this Amendment No. 3.
12. Confirmation. In all respects, the terms of the Loan
Agreement and the other Loan Documents, in each case as amended hereby, are
hereby confirmed.
-3-
4
IN WITNESS WHEREOF, Borrower and the Agent have executed this
Amendment No. 3 as of the date first set forth above by their duly authorized
representatives.
CENTRAL FINANCIAL ACCEPTANCE
CORPORATION, a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Xxxx X. Xxxxxx
Chief Executive Officer
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as the Agent
By: /s/ Xxxxx Xxxxxx
----------------------------------
Xxxxx Xxxxxx
Vice President
-4-
5
Exhibit A to Amendment No. 3
CONSENT AND REAFFIRMATION OF GUARANTORS
Each of the undersigned Guarantors hereby consents to the
execution, delivery and performance by Borrower and the Agent of the foregoing
Amendment No. 3 ("Amendment No. 3"). In connection therewith, each of the
undersigned expressly and knowingly reaffirms its liability under the Guaranty
to which it is a party executed and delivered by such Guarantor in favor of the
Agent (on behalf of the Lenders), and expressly agrees to be and remain liable
under the terms of such Guaranty for the Guarantied Obligations described
therein and acknowledges that it has no defense, offset or counterclaim
whatsoever against the Agent or the Lenders with respect to such Guaranty.
Each of the undersigned further agrees that such Guaranty shall
remain in full force and effect and is hereby ratified and confirmed.
Each of the undersigned further agrees that the execution of this
Consent and Reaffirmation of Guarantors is not necessary for the continued
validity and enforceability of such Guaranty, but is executed to induce the
Agent and the Lenders to approve of and otherwise enter into the Amendment No.
3.
IN WITNESS WHEREOF, each of the undersigned, intending to be
legally bound hereby, has caused this Consent and Reaffirmation of Guarantors to
be executed as of December 31, 1998.
BANNER HOLDINGS, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Xxxx X. Xxxxxx
Chief Executive Officer
CENTRAL CONSUMER FINANCE
COMPANY, a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Xxxx X. Xxxxxx
Chief Executive Officer
-5-
6
CENTRAVEL, INC., a California
corporation
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Xxxx X. Xxxxxx
Chief Executive Officer
CENTRAL PREMIUM FINANCE COMPANY,
a California corporation
By /s/ Xxxx X. Xxxxxx
--------------------------------
Xxxx X. Xxxxxx
Chief Executive Officer
BCE PROPERTIES, INC., a California
corporation
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Xxxx X. Xxxxxx
Chief Executive Officer
-6-
7
Exhibit B to Amendment No. 3
CONSENT OF LENDER
Reference is hereby made to that certain Revolving Loan Agreement
dated as of June 13, 1997 among Central Financial Acceptance Corporation, a
Delaware corporation, as Borrower, the Lenders party thereto, and Xxxxx Fargo
Bank, National Association, as Agent (as amended from time to time, the "Loan
Agreement").
The undersigned Lender hereby consents to the execution and
delivery of Amendment No. 3 to Revolving Loan Agreement by Xxxxx Fargo Bank,
National Association, as Agent, on its behalf, substantially in the form of a
draft dated on or about December 31, 1998, presented to the undersigned Lender.
Dated: As of December 31, 1998. California Bank & Trust
fka Sumitomo Bank of California
----------------------------------------
[Name of Institution]
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxx, Vice President
-----------------------------------
[Printed Name and Title]
By:
-----------------------------------
-----------------------------------
[Printed Name and Title]
-7-
8
Exhibit B to Amendment No. 3
CONSENT OF LENDER
Reference is hereby made to that certain Revolving Loan Agreement
dated as of June 13, 1997 among Central Financial Acceptance Corporation, a
Delaware corporation, as Borrower, the Lenders party thereto, and Xxxxx Fargo
Bank, National Association, as Agent (as amended from time to time, the "Loan
Agreement").
The undersigned Lender hereby consents to the execution and
delivery of Amendment No. 3 to Revolving Loan Agreement by Xxxxx Fargo Bank,
National Association, as Agent, on its behalf, substantially in the form of a
draft dated on or about December 31, 1998, presented to the undersigned Lender.
Dated: As of December 31, 1998.
Union Bank of California, N.A.
----------------------------------------
[Name of Institution]
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx, Vice President
-----------------------------------
[Printed Name and Title]
By:
-----------------------------------
-----------------------------------
[Printed Name and Title]
-8-
