AMENDMENT AGREEMENT NO. 4
to that certain
REVOLVING CREDIT AGREEMENT
This AMENDMENT AGREEMENT NO. 4 (the "Amendment"), dated as of
March 27, 1998, is among National Auto Finance Company, Inc. (the "Borrower"),
BankBoston, N.A. and the other lending institutions party thereto (collectively
the "Banks"), and BankBoston, N.A. as agent (the "Agent") for itself and the
other Banks.
WHEREAS, the Borrower, the Banks and the Agent are parties to that
certain Revolving Credit Agreement, dated as of September 29, 1997 (as amended
by Amendment No. 1, dated as of October 1, 1997, an Amendment No. 2, dated as of
December 19, 1997, and an Amendment No. 3, dated as of March 19, 1998, the
"Credit Agreement"), pursuant to which the Banks, upon certain terms and
conditions, have made loans to the Borrower; and
WHEREAS, the Borrower had requested that the Banks agree, and the Banks
have agreed, on the terms and subject to the conditions set forth herein, to
make certain changes to the Credit Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SS.1. DEFINED TERMS. Capitalized terms which are used herein
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without definition and which are defined in the Credit Agreement shall have the
same meanings herein as in the Credit Agreement.
SS.2. AMENDMENT OF CREDIT AGREEMENT. The Credit Agreement is
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hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is amended and
restated in its entirety to read as follows:
(i) the definition of Senior Subordinated Debt
Documents set forth in such ss.1.1 is amended and restated in
its entirety to read as follows:
Senior Subordinated Debt Documents. The Securities
Purchase Agreement, the SFHY Securities Purchase
Agreement and the Senior Subordinated Notes.
(ii) the definition of Senior Subordinated Notes set
forth in such ss.1.1 is amended and restated in its entirety
to read as follows:
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Senior Subordinated Notes. Collectively, (a) the
notes in the aggregate principal amount of
$40,000,000 issued pursuant to the Securities
Purchase Agreement and (b) the notes in the aggregate
principal amount of $20,000,000 issued pursuant to
the SFHY Securities Purchase Agreement.
(iii) the definition of Subordination Agreements set
forth in such ss.1.1 is amended and restated in its entirety
to read as follows:
Subordination Agreements. Collectively, (a) Article
12 of the Securities Purchase Agreement and the
definitions and provisions applicable to such Article
12 contained therein, (b) Article 12 of the SFHY
Securities Purchase Agreement and the definitions and
provisions applicable to such Article 12 contained
therein, and (c) the Junior Subordination Agreement,
dated as of March 27, 1998, among the Agent, the
holders of the Senior Subordinated Notes, the holders
of the Junior Subordinated Debt Documents and the
Borrower, each in form and substance satisfactory to
the Banks and the Agent.
(iv) Section 1.1 is further amended by adding the
following new definition:
SFHY Securities Purchase Agreement. The Securities
Purchase Agreement, dated as of March 27, 1998, by
and between the Borrower and The Structured Finance
High Yield Fund, LLC.
(b) Section 8.5.2 of the Credit Agreement is amended by
inserting before the period at the end of clause (iii)(B) thereof the
following text "and Article 12 of the SFHY Securities Purchase
Agreement":
(c) Section 9 of the Credit Agreement is amended and restated
in its entirety to read as follows:
9.9 LEVERAGE RATIO. In the event that the Borrower incurs
"Senior Indebtedness" (as defined in the Securities Purchase
Agreement) in excess of the Indebtedness permitted by clause
(iv) of Section 10.6(a) of the Securities Purchase Agreement
or "Senior Indebtedness" (as defined in the SFHY Securities
Purchase Agreement) in excess of the Indebtedness or permitted
by clause (iv) of ss.10.6(a) of the SFHY Securities Purchase
Agreement (collectively, the "Additional Senior Indebtedness")
in addition to any Indebtedness that is pari passu with the
Indebtedness incurred under the Senior Subordinated Notes, the
Borrower will not permit, immediately after giving effect to
the Additional Senior Indebtedness, the ratio of Total
Indebtedness to Consolidated Tangible Net Worth to exceed
4.5:1.0.
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(d) Section 12.1 of the Credit Agreement is further amended by
(i) deleting the word "or" at the end of clause (w) in such ss.12.1,
(ii) inserting the word "or" at the end of clause (x) in such ss.12.1
and (iii) adding the following new clause (y) to such ss.12.1:
(y) a "Blockage Notice" as defined in Section 12.3(b)
of the SFHY Securities Purchase Agreement shall be
given by a holder of Senior Indebtedness (as defined
therein) other than the Agent;
SS.3. AFFIRMATION AND ACKNOWLEDGMENT OF THE BORROWER. The Borrower
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hereby ratifies and confirms all of its Obligations to the Banks, including,
without limitation the Loans, and the Borrower hereby affirms its absolute and
unconditional promise to pay to the Banks the Loans and all other amounts due
under the Credit Agreement as amended hereby. The Borrower hereby confirms that
the Obligations are and remain secured pursuant to the Security Documents and
pursuant to all other instruments and documents executed and delivered by the
Borrower as security for the Obligations.
SS.4. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents
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and warrants to the Banks as follows:
(a) The execution and delivery by the Borrower of this
Amendment and all other instruments and agreements required to be
executed and delivered by the Borrower in connection with the
transactions contemplated hereby or referred to herein (collectively,
the "Amendment Documents"), and the performance by the Borrower of its
obligations and agreements under the Amendment Documents and the Credit
Agreement as amended hereby, are within the corporate authority of the
Borrower, have been authorized by all necessary corporate proceedings
on behalf of the Borrower, and do not and will not contravene any
provision of law, statute, rule or regulation to which the Borrower or
any of its Subsidiaries is subject or any of the Borrower's charter,
other incorporation papers, by-laws or any stock provision or any
amendment thereof or of any indenture, agreement, instrument or
undertaking binding upon the Borrower.
(b) The Amendment Documents and the Credit Agreement as
amended hereby constitute legal, valid and binding obligations of the
Borrower, enforceable in accordance with their respective terms, except
as limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or affecting generally the enforcement of
creditors' rights.
(c) No approval or consent of, or filing with, any
governmental agency or authority is required to make valid and legally
binding the execution, delivery or performance by the Borrower of the
Amendment Documents or the Credit Agreement as amended hereby, or the
consummation by the Borrower of the transactions among the parties
contemplated hereby and thereby or referred to herein.
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(d) The representations and warranties contained in ss.6 of
the Credit Agreement were correct at and as of the date made. Except to
the extent of changes resulting from transactions contemplated or
permitted by the Credit Agreement and changes occurring in the ordinary
course of business that singly or in the aggregate are not materially
adverse and to the extent such representations and warranties relate
expressly to an earlier date, such representations and warranties also
are correct at and as of the date hereof; provided, however, the Agent
and the Banks acknowledge that the application of FAS 125 and its
effects on securitization assets, including the Borrower's assets, and
the use of "gain-on-sale" accounting, in general, are presently under
review by the Borrower's accountants and the accounting profession as a
whole. The Agent and the Banks further acknowledge that any change in
the interpretation or application of FAS 125 to the gain-on-sale
accounting policies utilized by the Borrower and the assumptions
underlying those policies may affect the financial condition and
operating results of the Borrower for 1997 and in the future.
(e) The Borrower has performed and complied in all material
respects with all terms and conditions herein required to be performed
or complied with by it prior to or at the time hereof, and as of the
date hereof, after giving effect to the provisions hereof, there exists
no Event of Default or Default.
SS.5. EFFECTIVENESS. The effectiveness of this Amendment shall
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be subject to the satisfaction of the following conditions:
(a) Delivery. Each of the Borrower and the Banks shall have
executed and delivered this Amendment.
(b) Senior Subordinated Debt Arrangements. The transactions
contemplated by the SFHY Securities Purchase Agreement shall have been
consummated (which Agreement shall be in form and substance
satisfactory to the Agent and the Banks).
(c) Proceedings and Documents. All proceedings in connection
with the transactions contemplated by this Amendment, the transactions
contemplated by the Securities Purchase Agreement and all documents
incident thereto shall be reasonably satisfactory in substance and form
to the Banks, the Agent and the Agents' Special Counsel, and the Banks,
the Agent and such counsel shall have received all information and such
counterpart originals or certified or other copies of such documents as
the Agent may reasonably request.
SS.6 ACKNOWLEDGMENT OF SUBORDINATED DEBT. The Banks hereby acknowledge
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that the Indebtedness evidenced by the SFHY Securities Purchase Agreement and
the Senior Subordinated Notes issued thereunder as in effect on the date hereof
shall be "Subordinated Debt".
SS.7. MISCELLANEOUS PROVISIONS. (a) Except as otherwise expressly
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provided by this Amendment, all of the terms, conditions and provisions of the
Credit Agreement shall remain the same. It is declared and agreed by each of the
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parties hereto that the Credit Agreement, as amended hereby, shall continue in
full force and effect, and that this Amendment and the Credit Agreement shall be
read and construed as one instrument.
(b) THIS AMENDMENT IS INTENDED TO TAKE EFFECT AS AN AGREEMENT UNDER
SEAL AND SHALL BE CONSTRUED ACCORDING TO AND GOVERNED BY THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS.
(c) This Amendment may be executed in any number of counterparts, but
all such counterparts shall together constitute but one instrument. In making
proof of this Amendment it shall not be necessary to produce or account for more
than one counterpart signed by each party hereto by and against which
enforcement hereof is sought.
(d) Pursuant to ss.15 of the Credit Agreement, the Borrower hereby
agrees to pay to the Agent, on demand by the Agent, all reasonable out-of-pocket
costs and expenses incurred or sustained by the Agent in connection with the
preparation of this Amendment (including reasonable legal fees).
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
NATIONAL AUTO FINANCE COMPANY,
INC.
By:____________________________________
Title:
BANKBOSTON, N.A.,
individually and as Agent
By:____________________________________
Title:
