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EXHIBIT 10.47
SECOND AMENDMENT TO FOURTH AMENDED
AND RESTATED LOAN AND SECURITY AGREEMENT
This Second Amendment to Fourth Amended and Restated Loan and
Security Agreement (this "Amendment") is dated as of the 26th day of December,
1996, by and among First Merchants Acceptance Corporation ("Borrower"), LaSalle
National Bank ("LaSalle"), NBD Bank, ("NBD"), Firstar Bank Milwaukee, N.A.
("Firstar"), Xxxxxx Trust and Savings Bank ("Xxxxxx"), The Boatmen's National
Bank of St. Louis ("Boatmen's"), First Bank, National Association ("First"),
CoreStates Bank, N.A. ("CoreStates"), Fleet Bank, National Association
("Fleet"), and Mellon Bank, N.A. ("Mellon") (LaSalle, NBD, Firstar, Xxxxxx,
Boatmen's, First, CoreStates, Fleet and Mellon are hereinafter referred to
individually as "Lender" and collectively as "Lenders" and LaSalle in a
separate capacity as Agent for Lenders under the "Loan Agreement" (as
hereinafter defined) is hereinafter referred to as "Agent").
R E C I T A L S
A. Borrower, Lenders and Agent are parties to a Fourth
Amended and Restated Loan and Security Agreement dated as of February 28, 1996
(including all exhibits and riders thereto and as supplemented and amended
prior hereto or hereafter, referred to herein as the "Loan Agreement").
B. Borrower desires to amend the Loan Agreement to provide
for the creation of operating Subsidiaries and the addition of such operating
Subsidiaries as additional borrowers under the Loan Agreement under certain
circumstances, the entry by Borrower into additional lines of business, and
certain other modifications in the terms thereof.
C. Lenders are willing to consent to such amendments on the
terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements of the parties contained herein and for other good and valuable
consideration, the receipt of which is hereby acknowledged, Borrower, Agent and
Lenders agree as follows:
SECTION 1. RECITALS. The Recitals to this Amendment are hereby
incorporated herein in their entirety by this reference thereto and deemed to
be a part hereof.
SECTION 2. AMENDMENTS TO LOAN AGREEMENT. Subject to the terms
of this Amendment, the Loan Agreement is hereby amended as follows:
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2.1 Section 1 of the Loan Agreement is hereby amended to add
the following new defined terms:
"Assumption Agreement" shall have the meaning set forth in Section 18(t)
of this Agreement.
"Borrower" shall mean, initially, First Merchants Acceptance
Corporation, and subsequent to the addition of any Subsidiary as a
Borrower hereunder pursuant to Section 39 of this Agreement, the term
Borrower shall refer individually to First Merchants Acceptance
Corporation and each such Subsidiary and collectively to First Merchants
Acceptance Corporation and all such Subsidiaries.
"FMRCC" shall mean First Merchants Residential Credit Corporation, a
wholly owned Subsidiary of First Merchants Acceptance Corporation.
"Subsidiary" shall mean, with respect to any Person, any corporation of
which the outstanding capital stock having more than 50% of the voting
power to elect a majority of the board of directors of such corporation
is at the time directly or indirectly owned by such Person.
2.2 Section 18(a) of the Loan Agreement is hereby amended to
insert the words "residential mortgage lending," immediately after the words
"home equity lending," where they appear therein.
2.3 Section 18(d) of the Loan Agreement is hereby amended in
its entirety to read as follows:
"(d) Investment. Borrower will not, without the prior written
consent of Lenders make, incur, assume or suffer to exist any Investment
in any other Person, except (i) Cash Equivalent Investments, Investments
in connection with Permitted Securitization Transactions, (ii)
Investments in FMRCC up to the aggregate sum of $1,500,000, and (iii)
Investments in Subsidiaries which become a Borrower hereunder pursuant
to Sections 18(t) and 39 of this Agreement up to the aggregate sum of
$500,000."
2.4 Section 18(h) of the Loan Agreement is hereby amended by
deleting the word "or" prior to Subsection (iv) thereof, deleting the period at
the end of Subsection (iv) thereof, and inserting a comma in substitution
therefor and adding the following:
"or (v) loans and advances to FMRCC up to the aggregate sum of
$500,000."
2.5 Section 18 of the Loan Agreement is hereby amended by
adding the following new Subsection (t) thereto:
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"(t) Subsidiaries. Borrower shall not create any Subsidiaries
without the prior written consent of Lenders, except for (i) FMARC or
any other bankruptcy remote Subsidiary formed for the purposes of
completing a Permitted Securitization Transaction, (ii) FMRCC, and (iii)
any wholly owned Subsidiary (exclusive of those referenced in (i) and
(ii) above) formed by First Merchants Acceptance Corporation with prior
written notice to Agent and Lenders for the purpose of conducting
business activities of the nature permitted to be conducted by First
Merchants Acceptance Corporation hereunder and where such Subsidiary has
satisfied the following conditions:
(1) such Subsidiary has provided to Agent an executed
assumption agreement in form acceptable to Agent, whereby such
Subsidiary agrees to become a co-borrower under this Agreement
and agrees to assume the obligations of a Borrower hereunder and
grants to Agent on behalf of Lenders a first lien and security
interest in and to its assets, all in form and substance
acceptable to Agent ("Assumption Agreement");
(2) such Subsidiary is 100% owned by First Merchants
Acceptance Corporation;
(3) such Subsidiary has provided to Agent all UCC Financing
Statements and other agreements, instruments and documents
required by Agent to perfect Agent's lien and security interest
in and to the assets of such Subsidiary on behalf of the Lenders;
(4) such Subsidiary provides Agent a certificate executed by
its chief executive officer stating that to the best knowledge of
such officer after diligent inquiry and investigation (a) no
Default or Event of Default has occurred and is continuing, (b)
no litigation, investigation or proceeding, injunction, writ or
restraining order of the type described in Section 17(d) of this
Agreement is pending or threatened, (c) each of the
representations and warranties set forth in the Agreement are
true and correct as applied to Subsidiary, and (d) each of the
conditions precedent to the Subsidiary becoming a co-borrower
under this Agreement has been met or satisfied;
(5) such Subsidiary provided to Agent copies of insurance
required by this Agreement, together with lender's Loss Payable
Endorsements on Agent's required form, duly executed;
(6) such Subsidiary provides to Agent such Subsidiary's
certificate of incorporation certified by the state of
incorporation of such Subsidiary as of a date not more than
twenty (20) days prior to the date of the Assumption Agreement,
and a copy of its bylaws certified by its corporate secretary as
true, complete and correct;
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(7) such Subsidiary provides to Agent a good standing
certificate for such Subsidiary in the state of its incorporation
and in each other state in which it has an office, keeps
Collateral, or otherwise with a failure of such Subsidiary to be
qualified to transact business as a foreign corporation would
have a material adverse impact on such Subsidiary;
(8) such Subsidiary provides to Agent copies of resolutions of
its board of directors authorizing the execution and delivery of
and the consummation of the transactions contemplated by this
Agreement and the Assumption Agreement;
(9) such Subsidiary provides to Agent incumbency certificates
with respect to the officers of the Subsidiary executing the
Assumption Agreement and any related documents;
(10) such Subsidiary provides to Agent an Agency Agreement
establishing an Authorized Representative in each of such
Subsidiary's business locations as Agent's and Lender's agent to
perfect Agent's and Lender's lien on the Collateral coming into
the Subsidiary's possession.
(11) such Subsidiary and all other entities constituting a
Borrower hereunder have executed and delivered to each Lender a
replacement Revolving Credit Note in the amount of the Commitment
of such Lender in form acceptable to Agent and Lenders.
2.6 The Loan Agreement is hereby amended by adding a new
Section 39 thereto to provide as follows:
"Section 39. Addition of Co-Borrowers. Upon satisfaction by any
Subsidiary of the conditions set forth in Section 18(t)(iii) of this
Agreement (i) such Subsidiary shall become a co-borrower hereunder, (ii)
all references to Borrower herein shall be deemed to be a reference to
First Merchants Acceptance Corporation and such Subsidiary, and (iii)
First Merchants Acceptance Corporation shall calculate and report to
Agent and Lenders the financial covenants provided in Section 17 and 18
of this Agreement and the Borrowing Base on a consolidated basis.
2.7 Locations. Exhibit E to the Loan Agreement is hereby
deleted in its entirety and Exhibit A to this Amendment is inserted in
substitution therefor.
SECTION 3. CONSENT. Agent and Lenders hereby consent to the
incorporation of FMRCC as a wholly-owned Subsidiary of First Merchants
Acceptance Corporation, capitalization of such Subsidiary up to the maximum
amount of $1,500,000, and loans to such Subsidiary by First Merchants
Acceptance Corporation up to the aggregate sum of $500,000.
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SECTION 4. REPRESENTATION AND WARRANTIES. To induce Lenders to
amend the Loan Agreement, Borrower represents and warrants to Lenders that:
4.1 Compliance with Loan Agreement. On the date hereof,
Borrower is in compliance with the terms and provisions of the Loan Agreement
and no Event of Default specified therein has occurred.
4.2 Representations and Warranties. On the date hereof, the
representations and warranties set forth in the Loan Agreement are true and
correct with the same effect as if such representations and warranties have
been made on the date hereof except to the extent such representations and
warranties expressly relate to an earlier date.
4.3 Authority of Borrower. Borrower has full power and
authority to enter into this Amendment, which has been duly authorized by all
proper and necessary corporate action. No consent or approval of any public
authority or regulatory body or any other party is required as a condition to
the validity or enforceability of this Amendment.
4.4 Amendment as Binding Agreement. This Amendment
constitutes a valid and legally binding obligation of Borrower, fully
enforceable against Borrower in accordance with its terms.
SECTION 5. CONDITIONS PRECEDENT. The agreement by Lenders to
amend the Loan Agreement pursuant to the terms of this Amendment is subject to
the following conditions precedent:
5.1 Evidence of Authority. Agent shall have received evidence
of the authorization of Borrower to enter into this Amendment by its Board of
Directors in form acceptable to Agent.
SECTION 6. GENERAL PROVISIONS.
6.1 Except as amended by this Amendment, the terms and
provisions of the Loan Agreement are in all other respects ratified and
confirmed and remain in full force and effect. In the event of a conflict
between the terms of the Loan Agreement and the terms of this Amendment, the
terms of this Amendment shall be controlling.
6.2 After the effective date hereof, all references in the
Loan Agreement and in all related agreements and documents to "Agreement",
"hereof", or the like shall refer to the Loan Agreement as herein amended or
modified.
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6.3 This Amendment shall not constitute a waiver of any
existing Events of Default or any other provisions of the Loan Agreement as
amended hereby, except as expressly set forth herein, and shall not constitute
a course of dealing with respect to any such Events of Default or an agreement
to further consents, amendments or waivers under the Loan Agreement. Agent and
Lenders expressly reserve their rights and remedies, none of which shall be
deemed to be waived hereby.
6.4 Borrower hereby agrees to pay all reasonable out-of-pocket
expenses incurred by Agent in connection with the preparation, negotiation and
consummation of this Amendment and all other documents related thereto,
including, without limitation, the fees and expenses of Agent's counsel.
6.5 This Amendment shall be construed in accordance with and
governed by the laws of the State of Illinois and the obligations of Borrower
under this Amendment are and shall arise absolutely unconditionally upon the
execution and delivery of this Amendment. This Amendment may be executed in
counterparts.
6.6 Capitalized terms used herein which are defined in the
Loan Agreement, shall unless otherwise defined herein, have the meanings
provided in the Loan Agreement.
IN WITNESS WHEREOF, the Borrower and Lenders have caused this
Amendment to be duly executed as of the date first above written.
FIRST MERCHANTS ACCEPTANCE CORPORATION
By: _______________________________
Title: _______________________________
LASALLE NATIONAL BANK
By: _______________________________
Title: _______________________________
NBD BANK
By: _______________________________
Title: _______________________________
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FIRSTAR BANK MILWAUKEE, N.A.
By: _______________________________
Title: _______________________________
XXXXXX TRUST AND SAVINGS BANK
By: _______________________________
Title: _______________________________
FIRST BANK, NATIONAL ASSOCIATION
By: _______________________________
Title: _______________________________
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS
By: _______________________________
Title: _______________________________
FLEET BANK, NATIONAL ASSOCIATION
By: _______________________________
Title: _______________________________
CORESTATES BANK, N.A.
By: _______________________________
Title: _______________________________
MELLON BANK, N.A.
By: _______________________________
Title: _______________________________
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