Exhibit 10.32
Amendment No. 3 to Amended and Restated Motor Vehicle Installment Contract
Loan and Security Agreement
This AMENDMENT NO. 3 (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 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.
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, 2002, the
Agreement is hereby amended as follows:
(a) The entire Section 2.2 "General Interest Rate" shall be deleted in
its entirety and replaced with the following:
"Except as modified by Sections 2.4 and 15.1, the Loan shall bear
interest, calculated daily on the basis of a 365-day year, at a per
annum rate equal to the LIBOR Rate as it may change upon the first day
of each calendar month plus (i) 400 basis points (4.00%) when the
outstanding Loan is less than forty million dollars ($40,000,000) prior
to July 1, 2002, or (ii) 450 basis points (4.50%) when the outstanding
Loan is greater than or equal to forty million dollars ($40,000,000)
prior to July 1, 2002 or (iii) 450 basis points (4.50%) beginning on
July 1, 2002."
(b) The first sentence in Section 2.3. "Loan Term: Right to Terminate."
shall be deleted in its entirety and replaced with the following:
"Unless sooner terminated as hereinafter provided, this Agreement
shall terminate, and the Loan becomes payable in full, on the earlier
of (i) January 2, 2003 or (ii) the termination of, or cessation of
advances under, the Seventy Five Million Dollar ($75,000,000) West LB
warehouse facility."
(c) 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. The payment
of the line fee is nonrefundable."
(d) The following sentence is added to the end of Section 13.4
"Financial Statements and Access to Records":
"Within thirty (30) days after the end of each calendar
quarter, Borrower will provide to Lender an agreed on procedure
statement from the Borrower's independent certified public accountants
to the effect that the Borrower's calculation of the components in the
Reserve Requirement is accurate."
(e) The following section 14.9 "Restricted Repayment on Subordinated
Indebtedness" shall be added to Article XIV:
"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
and Three Hundred Thousand Dollars ($300,000) due and payable on two
other promissory notes on July 27, 2002.
(f) The definition of "Available Line" under Section 16.0 is hereby
deleted in its entirety and replaced with the following:
"Available Line: Fifty Million Dollars ($50,000,000) through
June 30, 2002 and Forty Million Dollars ($40,000,000) beginning on July
1, 2002."
(g) The following sentence is added to the end the definition of
"Delinquency Measurement" under Section 16.0:
"For Accounting Periods when the Rolling Average Deferral,
Contract Modification and Allowable Delinquency on either Pledged
Portfolio or the Total Serviced Portfolio is greater than fifty basis
points (0.50%), the Delinquency Measurement percent shall increase by
the amount of Rolling Average Deferral, Contract Modification and
Allowable Delinquency greater than fifty basis points (0.50%)."
(h) The definition of "Delinquency Measurement Contracts" under Section
16.0 shall be deleted in its entirety and replaced with the following."
"Delinquency Measurement Contracts: all Contracts which do not
constitute Charged Off Contracts."
(i) The definition of "Line Fee" under Section 16.0 shall be deleted in
its entirety.
(j) The definition of "Repossession Inventory" under Section 16.0 shall
be deleted in its entirety and replaced with the following."
"Repossession Inventory: The number of Financed Vehicles which
have been repossessed by Borrower or any of its agents related to
Delinquency Measurement Contracts expressed as a percentage of the
number of Delinquency Measurement Contracts. For purposes of
calculating the Covenants on Exhibit 13.6, Repossession Inventory shall
be calculated separately on the Pledged Portfolio and the Total
Serviced Portfolio"
(k) The definition of "Reserve Requirement" under Section 16.0 is
hereby deleted in its entirety and replaced with the following:
"Reserve Requirement the sum of (i) dealer reserves, plus (ii)
allowances for credit losses plus (iii) unearned discounts divided by
Borrower's projected future gross charge-offs, using a static pool
analysis, reduced by unearned finance charges and anticipated
recoveries; with the result of such division expressed as a percentage.
(l) The definition of "Rolling Average Deferral, Contract Modification
and Allowable Delinquency" under Section 16.0 shall be deleted in its entirety
and replaced with the following."
"Rolling Average Deferral, Contact Modification and Allowable
Delinquency: the weighted average of the number of deferrals and
allowable delinquencies as defined in Borrower's collection policies
divided by the number of Delinquency Measurement Contracts for any
three (3) consecutive Accounting Periods calculated separately for the
portfolio of Pledged Contracts and the Total Serviced Portfolio."
(m) The definition of "Three Month Rolling Average Repossession
Inventory" shall be inserted in alphabetical order under Section 16.0 as
follows:
"Three Month Rolling Average Repossession Inventory: the
weighted average of Repossession Inventory for any three (3)
consecutive Accounting Periods calculated separately for the Total
Serviced Portfolio and the Pledged Portfolio."
(n) The "Maximum Six Month Rolling Average Delinquency contained on
Exhibit 13.6 for the Pledged Portfolio shall be deleted and replaced with the
following:
"Maximum Six Month Rolling Average Delinquency 11.00%"
(o) The "Maximum Three Month Rolling Average Delinquency" contained on
Exhibit 13.6 for the Total Serviced Portfolio shall be deleted and replaced with
the following:
"Maximum Three Month Rolling Average Delinquency 11.00%"
(p) The "Maximum Repossession Inventory" contained on Exhibit 13.6 for
the Pledged Portfolio shall be deleted and replaced with the following:
"Maximum Three Month Rolling Average Repossession Inventory 2.00%"
(q) The "Maximum Repossession Inventory" contained on Exhibit 13.6 for
the Total Serviced Portfolio shall be deleted and replaced with the following:
"Maximum Three Month Rolling Average Repossession Inventory 1.00%"
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 March __, 2002
GENERAL ELECTRIC CAPITAL CORPORATION
By: _________________________________
Title: ________________________________
THE FINANCE COMPANY
By: _________________________________
Title: ________________________________
