Exhibit 10.98(a)
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EXECUTION COPY
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FIRST OMNIBUS AMENDMENT TO
FACILITY DOCUMENTS
THIS FIRST OMNIBUS AMENDMENT TO FACILITY DOCUMENTS, dated as of December 6,
2001 (this "AMENDMENT"), is entered into by and among F.I.R.C., INC., a Delaware
corporation (the "BORROWER"), FIRST INVESTORS FINANCIAL SERVICES, INC., a Texas
corporation ("FIFS"), FIRST INVESTORS SERVICING CORPORATION, a Delaware
corporation ("FISC"), the financial institutions listed on the signature pages
hereof (each individually a "BANK" and collectively, the "BANKS"), BANK OF
AMERICA, N.A. ("BANK OF AMERICA"), FIRST UNION SECURITIES, INC., a Delaware
corporation ("FIRST UNION SECURITIES") and Well Fargo Bank Minnesota, National
Association ("XXXXX FARGO"). Capitalized terms used and not otherwise defined
herein are used as defined in the Facility Documents (as defined below).
WHEREAS, the Borrower, the financial institutions listed on the signature
pages thereof and Bank of America in its individual capacity as a Bank and as
Agent for the Banks entered into that certain Second Amended and Restated Credit
Agreement, dated as of November 15, 2000 (as from time to time amended,
supplemented or restated, the "CREDIT AGREEMENT");
WHEREAS, the Borrower, Bank of America in its individual capacity as a Bank
and as Agent for the Banks and Xxxxx Fargo entered into that certain Third
Amended and Restated Collateral Security Agreement, dated as of November 15,
2000 (as from time to time amended, supplemented or restated, the "SECURITY
AGREEMENT");
WHEREAS, FIFS and Bank of America in its individual capacity as a Bank and
as Agent for the Banks entered into that certain Pledge and Security Agreement,
dated as of November 15, 2000 (as from time to time amended, supplemented or
restated, the "PLEDGE AGREEMENT");
WHEREAS, the Borrower, FISC and Xxxxx Fargo entered into that certain
Servicing Agreement, dated as of June 25, 1999 (as from time to amended,
supplemented or restated, the "SERVICING AGREEMENT");
WHEREAS, the Borrower and FIFS entered into that certain Amended and
Restated Purchase Agreement, dated as of October 30, 1996 (as from time to time
amended, supplemented or restated, the "PURCHASE AGREEMENT"; the Credit
Agreement, the Security Agreement, the Pledge Agreement, the Servicing Agreement
and the Purchase Agreement, collectively, the "FACILITY DOCUMENTS");
WHEREAS, the parties hereto are entering into this Amendment to, among
other things, (i) remove Bank of America as a Bank and as Agent for the Banks,
(ii) to establish First Union Securities as a successor to Bank of America in
the capacity of Agent for the Banks and (iii) to increase First Union National
Bank's Commitment under the Credit Agreement to $50,000,000;
NOW THEREFORE, in consideration of the premises and the other mutual
covenants contained herein, the parties hereto agree as follows:
SECTION 1. GLOBAL AMENDMENTS. Effective as of the Effective Date, the
Facility Documents are hereby amended as follows:
(a) AGENCY SUCCESSION. First Union Securities shall be successor Agent to
Bank of America for all purposes of the Facility Documents. First Union
Securities hereby accepts all of the rights, duties and obligations of the
"Agent" under the Facility Documents. Bank of America hereby assigns all of its
security interests and other rights and obligations as administrative agent
under the Facility Documents to First Union Securities. Any and all references
in the Facility Documents to Bank of America in its capacity as "Agent" are
hereby amended to refer to "First Union Securities" in such capacity. Bank of
America shall no longer have any rights, obligations or duties as "Agent" under
the Facility Documents from and after the Effective Date hereof; PROVIDED,
however, nothing in this Amendment shall constitute a release by Bank of America
of any liabilities from any of its actions taken prior to the Effective Date.
First Union Securities hereby represents that it has no knowledge of any such
claim against or liability of Bank of America for any of actions that Bank of
America has taken prior to the Effective Date.
(b) TERMINATION OF BANK OF AMERICA AS A BANK. Bank of America shall cease
to be a party to the Facility Documents in its capacity as a "Bank" on the
Effective Date.
SECTION 2. CANCELLATION OF BANK OF AMERICA NOTE. On the earlier to occur of
(i) the Effective Date and (ii) payment in full of all amounts owed to Bank of
America by the Borrower, the obligations of the Borrower under the Second
Amended and Restated Facility Note, dated as of November 15, 2000 in favor of
Bank of America ("BANK OF AMERICA NOTE") shall be terminated and the Bank of
America Note shall be cancelled.
SECTION 3. AMENDMENTS TO CREDIT AGREEMENT. Effective as of the Effective
Date, the Credit Agreement is hereby amended as follows:
(a) The definition of "Bank of America" in Section 1.01 of the Credit
Agreement is hereby deleted.
(b) The definition of "Commitment" in Section 1.01 of the Credit Agreement
is hereby amended in its entirety to read as follows:
"COMMITMENT: means, as to any Bank, each Bank's Loan Percentage of
$50,000,000, as such amount may be reduced or increased from time to time
pursuant to the terms and provisions hereof.
(c) The definition of "Eligible Receivables" in Section 1.01 of the Credit
Agreement is hereby amended by (i) deleting the word "and" at the end of clause
(af), (ii) deleting the "." at the end of clause (ag) and substituting in lieu
thereof "; and" and (iii) adding the following new clause (ah) at the end
thereof:
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(ah) if it is an Eligible FIARC Receivable, the Borrower shall have
confirmed in writing to the Agent that it has received a confirmation of
insurance with respect to such receivable (which confirmation is in form
and substance satisfactory to the Agent in its sole discretion) under the
ALPI Insurance and a written acknowledgement from the insurer thereunder of
receipt of the related insurance premium payment.
(d) The definition of "Liquidation Proceeds" in Section 1.01 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"LIQUIDATION PROCEEDS" means the monies collected from whatever source,
during the respective Collection Period, on a Liquidated Receivable
(including, without limitation, all proceeds from any insurance policy held
by the Obligor with respect thereto but excluding any proceeds from the
ALPI Insurance; PROVIDED, however, that with respect to Eligible FIARC
Receivables, any proceeds received by the Borrower from the ALPI Insurance
with respect to an Eligible FIARC Receivable during the first twelve (12)
month period after such Eligible FIARC Receivable becomes an Eligible
Receivable hereunder shall constitute Liquidation Proceeds for such
Liquidated Receivable; PROVIDED, further, that with respect to Eligible
FIRC Receivables, any proceeds received by the Borrower from the ALPI
Insurance with respect to an Eligible FIRC Receivable during the first
twelve (12) month period after such Eligible FIRC Receivable becomes an
Eligible FIRC Receivable hereunder shall constitute Liquidation Proceeds
for such Liquidated Receivable).
(e) The definition of "Revolving Loan Termination Date" in Section 1.01 of
the Credit Agreement is hereby amended in its entirety to read as follows:
"REVOLVING LOAN TERMINATION DATE" means December 5, 2002 or the earlier
date of termination in whole of the Commitments pursuant to Section 2.04 or
8.01.
(f) The definition of "Termination Date" in Section 1.01 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"TERMINATION DATE" means June 5, 2003 or the earlier date that the Notes
Mature pursuant to Section 8.01."
(g) The following definitions are added in alphabetical order to Section
1.01 of the Credit Agreement:
"AGENT" means First Union Securities, Inc., a Delaware corporation.
"DELINQUENCY RATIO" means as at any date of determination thereof, the
ratio (expressed as a percentage) the numerator of which is the average of
the Principal Balances of all Receivables that constitute Delinquent
Receivables as determined as of each Determination Date for the immediately
preceding three Collection Periods and the denominator of which is the
average of the Receivable Portfolio Balances as determined as of each
Determination Date for the immediately preceding three Collection Periods;
PROVIDED, however, during the first twelve (12) months after the first date
on which an Eligible FIARC Receivable becomes an Eligible Receivable, any
such Eligible FIARC
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Receivable becoming a Delinquent Receivable hereunder shall not be included
in the calculation of the numerator or the denominator hereof; PROVIDED,
further, during the first twelve (12) months after the first date on which
an Eligible Receivable becomes an Eligible FIRC Receivable, any Eligible
FIRC Receivable becoming a Delinquent Receivable hereunder shall not be
included in the calculation of the numerator or the denominator hereof.
"ELIGIBLE FIARC RECEIVABLE" means as at the time of a Take-Out
Securitization, a Receivable that (i) meets each of the requirements set
forth in clauses (a) through (ag) in the definition of "Eligible
Receivables" hereof and (ii) does not meet the eligibility requirements or
criteria set forth in the documents relating to a Take-Out Securitization.
"ELIGIBLE FIRC RECEIVABLE" means as at the time of a FIRC Take-Out
Securitization, a Receivable that (i) is an Eligible Receivable hereunder
and (ii) does not meet the eligibility requirements or criteria set forth
in the documents relating to a FIRC Take-Out Securitization; PROVIDED,
however, an Eligible FIRC Receivable shall not include any Receivable that
at any time constituted an Eligible FIARC Receivable.
"FIARC WAREHOUSE" means the $150,000,000 warehouse line provided by
Enterprise pursuant to the Enterprise Agreement, or any similar facility.
"FIRC TAKE-OUT SECURITIZATION" means any securitization of the Receivables
hereunder through the issuance of asset-backed securities.
"TAKE-OUT SECURITIZATION" means any securitization of the Receivables in
the FIARC Warehouse through the issuance of asset-backed securities.
(h) Section 4.02 of the Credit Agreement is hereby amended by (i) deleting
the word "and" at the end of clause (d), (ii) deleting the "." at the end of
clause (e) and substituting in lieu thereof "; and" and (iii) adding the
following new clause (f):
(f) if any of the Receivables to be purchased with the proceeds of the
proposed Borrowing is an Eligible FIARC Receivable, the Agent shall
have received a confirmation of insurance under the ALPI Insurance
identifying such Eligible FIARC Receivable as being insured thereunder
and an acknowledgement from the insurer thereunder of receipt of the
related insurance premium payment.
(i) Clause (c) of Section 7.13 of the Credit Agreement is hereby amended
in its entirety to read as follows:
(c) The Borrower will not permit the Delinquency Ratio to exceed 8.5%.
(j) Section 8.01 of the Credit Agreement is hereby amended by (i) adding
the word "or" at the end of clause (r) and (ii) adding the following new clause
(s):
(s) The aggregate Principal Balance of Eligible FIARC Receivables
shall exceed $7,000,000.
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(k) Section 10.02 of the Credit Agreement is hereby amended by deleting
the address provision relating to the Agent and substituting in lieu thereof,
the following: "to the Agent, at its address at 000 Xxxxx Xxxxxxx Xxxxxx, XX-0,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xx. Xxxx Xxxxxxxxx, Telephone: (704)
000-0000, Facsimile: (000) 000-0000.
SECTION 4. AMENDMENT TO SECURITY AGREEMENT. Effective as of the
Effective Date, the Security Agreement is hereby amended as follows:
(a) The definition of "Base Level Collateral Account Balance" is hereby
amended to read in its entirety as follows:
"BASE LEVEL COLLATERAL ACCOUNT BALANCE" means, with respect to any
Distribution Date, an amount equal to sum of (a) the greater of (i) the Initial
Deposit and (ii) one percent (1%) of the most recently determined Receivable
Portfolio Balance and (b) six percent (6%) of the aggregate Principal Balance of
all Eligible FIARC Receivables as determined on the most recent Determination
Date.
SECTION 5. AMENDMENT TO SERVICING AGREEMENT. Effective as of the Effective
Date, the Servicing Agreement is hereby amended as follows:
(a) Section 7.03 of the Servicing Agreement is hereby amended by deleting
the address provision relating to the Agent and substituting in lieu thereof,
the following:
To the Agent:
First Union Securities, Inc.
000 Xxxxx Xxxxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
SECTION 6. EFFECTIVE DATE. This Amendment shall become effective as of the
date (the "EFFECTIVE DATE") on which each of the following conditions precedent
shall have been satisfied:
(a) AMENDMENT. The Agent and each Bank shall have received multiple
counterparts, as requested, of this Amendment, executed and delivered by a duly
authorized officer of each party hereto.
(b) FACILITY NOTES.
(i) The Borrower shall have executed and delivered the Third Amended
and Restated Facility Note, substantially in the form of Exhibit F to the
Credit Agreement, payable to the order of First Union National Bank, in the
principal amount of $50,000,000.
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(ii) Bank of America shall have delivered the Bank of America Note to
the Agent and the Agent shall have cancelled the Bank of America Note upon
execution of the Third Amended and Restated Facility Note referred to in
subsection (b)(i) above.
(c) ASSIGNMENT AND ACCEPTANCE. Bank of America shall have executed and
delivered to the Agent an Assignment and Acceptance in the form of EXHIBIT A
attached hereto, and the Agent shall have evidenced its acceptance of such
Assignment and Acceptance by simultaneously causing the payment of all amounts
owing to Bank of America under the Bank of America Note.
(d) AMOUNTS OWING TO BANK OF AMERICA. Bank of America shall have provided
to the Borrower (or FIFS on behalf of the Borrower) with an invoice setting
forth all amounts owed as of the date hereof (excluding amounts owed under the
Bank of America Note) by the Borrower to Bank of America under the Credit
Agreement and, simultaneously with the occurrence of the events specified in
subsection b(ii) above, the Borrower shall have paid all such amounts to Bank of
America.
(e) COMPLIANCE CERTIFICATE: A compliance certificate, which shall be true
and correct in the form of Exhibit B to the Credit Agreement, duly and properly
executed by an authorized officer of the Borrower on behalf of the Borrower,
dated as of the last Business Day of the calendar month immediately preceding
the Effective Date.
(f) CORPORATE AUTHORITY. The Agent shall have received copies of
resolutions of the Board of Directors of the Borrower authorizing the execution,
delivery and performance of the Facility Documents as amended by this Amendment,
accompanied by an original certificate of the Secretary or the Assistant
Secretary of the Borrower that such resolutions are true, correct and complete
copies of resolutions duly adopted by the Board of Directors and that such
resolutions have not been modified, rescinded or revoked, and further certifying
as to the incumbency and signature of the officers of the Borrower executing
this Amendment and as to the fact that the articles of incorporation and by-laws
of the Borrower have not changed from those furnished pursuant to Section
4.01(g) of the Credit Agreement.
(g) FINANCING STATEMENTS AND SEARCH REPORTS.
(i) Acknowledgement copies of proper Termination Statements (Form
UCC-3), duly filed on or before the Closing Date, terminating Financing
Statement number 00-629708 filed with Texas Secretary of State and any
other Termination Statements, or other similar instruments or documents, as
may be necessary or, in the opinion of the Agent, desirable under the UCC
of all appropriate jurisdictions.
(ii) Acknowledgement copies of proper Financing Statements (Form
UCC-1), duly filed with the Texas Secretary of State on or before the
Closing Date, naming First Union Securities, Inc., as Agent with respect to
the Pledge Agreement and any other Financing Statements, or other similar
instruments or documents, as may be necessary or, in the opinion of the
Agent, desirable under the UCC of all appropriate jurisdictions or any
comparable law to perfect the Agent's and the Banks' security interest in
the Collateral.
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(iii) Certified copies of Requests for Information or Copies (Form
UCC-11) (or a similar search report certified by a party acceptable to the
Agent), dated on or before the Effective Date, listing all effective
financing statements which name the Borrower as debtor and which are filed
with the Texas Secretary of State or the Delaware Secretary of State.
(h) OPINIONS. Enforceability and perfection/priority opinions from
Xxxxxxxx & Knight in form and substance acceptable to the Agent.
(i) INSURANCE. The ALPI Insurance, the GAP Insurance and the VSI Insurance
shall each be in form and substance satisfactory to the Agent, and the Agent
shall have received evidence that Bank of America, as agent has been removed as
an additional insured and First Union Securities, Inc., as Agent has been named
as an additional insured with respect thereto.
(j) COVENANTS. The Borrower is in compliance with each of its covenants
set forth herein and each of the Facility Documents to which it is a party.
(k) NO DEFAULT. No event has occurred which constitutes a Default or an
Event of Default under the Facility Documents.
(l) OTHER INFORMATION. The Borrower shall have taken such other action,
including delivery of approvals, consents, opinions, documents and instruments,
as the Agent may reasonably request.
SECTION 7. MISCELLANEOUS.
(a) REFERENCES FACILITY DOCUMENTS. Upon the effectiveness of this
Amendment, each reference in a Facility Document to "this Agreement",
"hereunder", "hereof", "herein", or words of like import shall mean and be a
reference to such Facility Document as amended hereby, and each reference to a
Facility Document in any other Facility Document or any other document,
instrument or agreement, executed and/or delivered in connection with any
Facility Document shall mean and be a reference to such Facility Document as
amended hereby.
(b) EFFECT ON FACILITY DOCUMENTS. Except as specifically amended above, the
Facility Documents and all other documents, instruments and agreements executed
and/or delivered in connection therewith shall remain in full force and effect
and are hereby ratified and confirmed.
(c) NO WAIVER. The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of any Person under
any Loan Document or any other document, instrument or agreement executed in
connection therewith, nor constitute a waiver of any provision contained
therein.
(d) SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns.
(e) COUNTERPARTS. This Amendment may be executed in any number of
counterparts, and by the different parties hereto on the same or separate
counterparts, each of which shall be
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deemed to be an original instrument but all of which together shall constitute
one and the same agreement. Delivery of an executed counterpart of a signature
page by facsimile shall be effective as delivery of a manually executed
counterpart of this Amendment.
(f) HEADINGS. The descriptive headings of the various sections of this
Amendment are inserted for convenience of reference only and shall not be deemed
to affect the meaning or construction of any of the provisions hereof.
(g) AMENDMENTS. This Amendment may not be amended or otherwise modified
except as provided in the Facility Documents.
(h) GOVERNING LAW. THIS AMENDMENT (INCLUDING, BUT NOT LIMITED TO, THE
VALLIDITY AND ENFORCEABILITY HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, OTHER THAN THE CONFLICT OF LAW
RULES THEREOF.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
by their respective officers thereunto duty authorized, as of the date first
above written.
F.I.R.C, INC.
By:
-----------------------------------
Name:
Title:
FIRST INVESTORS FINANCIAL SERVICES, INC.
By:
-----------------------------
Name:
Title:
FIRST INVESTORS SERVICING CORPORATION
By:
-----------------------------
Name:
Title:
FIRST UNION SECURITIES, INC.
By:
-----------------------------
Name:
Title:
Note Face Principal FIRST UNION NATIONAL BANK
Amount: $50,000,000
By:
-----------------------------
Name:
Title:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
By:
-----------------------------
Name:
Title:
Title:
Agreed and accepted as of the date first written above
BANK OF AMERICA, N.A.,
By:
-------------------------------------
Name:
Title:
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Exhibit A
Form of Assignment and Acceptance
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated __________
Reference is made to the Second Amended and Restated Credit Agreement
dated as of November 15, 2000 (as amended, restated, or otherwise modified from
time to time, the "AGREEMENT") among F.I.R.C., Inc. as the Borrower, the
financial institutions listed on the signature pages thereof and Bank of America
in its individual capacity as a Bank and as Agent for the Banks Except as
otherwise provided herein, capitalized terms used herein will have the meanings
ascribed to them in the Agreement.
__________________ (the "ASSIGNOR") and ___________________ (the
"ASSIGNEE") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, that interest in and to
all of the Assignor's rights and obligations under the Agreement as of the date
hereof which represents the percentage interest specified in SECTION 1 of
Schedule 1 of all outstanding rights and obligations of the Assignor under the
Agreement, including, without limitation, such interest in the Facility Note
held by the Assignor. After giving effect to such sale and assignment, the
Outstanding Amount with respect to the Facility Note held by the Assignee will
be as set forth in SECTION 2 of Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Agreement or any other instrument or document furnished pursuant thereto;
and (iii) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under the Agreement or any
other instrument or document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of the
Agreement, together with copies of such financial statements and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon the Agent, the Assignor or
any Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Agreement; (iii) appoints and authorizes the Agent
to take such action as agent on its behalf and to exercise such powers under the
Agreement as are delegated to the Agent by the
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terms thereof, together with such powers as are reasonably incidental
thereto; and (v) agrees that it will perform in accordance with their terms all
of the obligations which by the terms of the Agreement are required to be
performed by it as a Bank.
4. Following the execution of this Assignment and Acceptance by the
Assignor and the Assignee, it will be delivered to the Agent for acceptance and
recording by the Agent. The effective date of this Assignment and Acceptance
(the "TRANSFER DATE") shall be the date of acceptance thereof by Agent, unless a
later date is specified in SECTION 3 of Schedule 1 hereof.
5. Upon such acceptance by the Agent and upon such recording by the
Agent, as of the Transfer Date, (i) the Assignee shall be a party to the
Agreement and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Bank thereunder and (ii) the Assignor shall, to
the extent provided in this Assignment and Acceptance, relinquish its rights and
be released from its obligations under the Agreement.
6. Upon such acceptance by the Agent and upon such recording by the
Agent, from and after the Transfer Date, the Agent shall make, or cause to be
made, all payments under the Agreement in respect of the interest assigned
hereby (including, without limitation, all payments of principal and interest
with respect thereto) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Agreement for periods prior to the
Transfer Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
[NAME OF ASSIGNOR]
By:
-----------------------------------
Name:
Title:
ADDRESS FOR NOTICES
[ADDRESS]
[NAME OF ASSIGNEE]
By:
-----------------------------------
Name:
Title:
ADDRESS FOR NOTICES
[ADDRESS]
Acknowledged and accepted
this ___ day of ___________, ____
FIRST UNION SECURITIES, INC.,
as Agent
By:
--------------------------------------
Name:
Title:
Schedule 1
to
Assignment and Acceptance
Dated December 7, 2001
SECTION 1.
Loan Percentage Assigned: ________%
Loan Percentage Retained by Assignor: ________%
Type of Note: _________.
SECTION 2.
Assignee's Commitment: $_____________
Outstanding Amount
Owing to the Assignee: $_____________
SECTION 3.
Transfer Date: ___________________
