Exhibit 10.40
Amendment No. 4 to Amended and Restated Motor Vehicle Installment Contract
Loan and Security Agreement
This AMENDMENT NO. 4 (this "Amendment") 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 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
so amended, the "Agreement").
B. Borrower and Lender desire to amend certain a provision of the
Agreement pursuant to the terms set forth in this Amendment.
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 August 31, 2002, the
Agreement is hereby amended as follows:
(a) 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 and Three Hundred Thousand Dollars
($300,000) due and payable on two other promissory notes on September
3, 2002."
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and provisions of which, unless expressly modified herein, or unless no longer
applicable by their terms, are hereby affirmed and ratified and remain in full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. 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.
5. 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.
6. 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.
7. 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.
8. 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. 3 as of August __, 2002
GENERAL ELECTRIC CAPITAL CORPORATION
By: _________________________________
Title: ________________________________
THE FINANCE COMPANY
By: _________________________________
Title: ________________________________
