AMENDMENT NUMBER 10 AND WAIVER OF
NOTE AGREEMENT
This AMENDMENT NUMBER 10 AND WAIVER OF NOTE AGREEMENT (this
"Amendment and Waiver") dated as of April 4, 1997, is made by and among THE
FINANCE COMPANY (the "Company"), a Virginia corporation and CIG & CO. (the
"Holder") as nominee for CONNECTICUT GENERAL LIFE INSURANCE COMPANY AND LIFE
INSURANCE COMPANY OF NORTH AMERICA (the "Purchasers").
BACKGROUND
1. The Company and each of the Purchasers are parties to separate
Note Purchase Agreements (collectively, as amended prior to the date hereof, the
"Existing Note Agreement"), dated as of October 25, 1988, that provided, among
other things, for the sale by the Company and the purchase by the Purchasers of
Six Million Four Hundred Thirty-Five Thousand Dollars ($6,435,000) in aggregate
principal amount of the Company's 13 1/2% Subordinated Notes, due October 15,
1998 (the "Notes") which Notes are registered in the name of the Holder on
behalf of the Purchasers. The Company and the Holder previously entered into a
Waiver and Forbearance Agreement (as amended or extended, the "Forbearance
Agreement") dated as of January 31, 1996.
2. The Company has entered into an Amended and Restated Motor
Vehicle Installment Contract Loan and Security Agreement with General Electric
Capital Corporation ("GECC") dated as of December 20, 1996, and as amended by
Amendment No. 1 dated as of April 4, 1997 (as so amended, together with all
exhibits thereto and all other agreements contemplated thereby, the "New GECC
Agreement") which will require certain amendments to the Existing Note
Agreement.
3. The Company has requested of the Holder that the
Existing Note Agreement be amended and waived to the effect and as set forth
in this Amendment and Waiver.
NOW THEREFORE, in order to induce the Holder to amend the Existing
Note Agreement and to waive certain defaults with respect thereto and in
consideration for other good and valuable consideration (the receipt of and
sufficiency of which are hereby acknowledged), the Company agrees with the
Holder as follows:
SECTION 1. DEFINED TERMS.
All capitalized terms used, but not specifically defined, in this
Amendment and Waiver have the respective meanings assigned to them in or
pursuant to the provisions of the Existing Note Agreement as amended by this
Amendment and Waiver (as so amended herein referred to as the "Amended Note
Agreement").
SECTION 2. REPRESENTATIONS AND WARRANTIES.
The Company warrants and represents to the Holder that as of the date of
this Amendment and Waiver and as of the Effective Date (as defined in Section
3):
(a) ORGANIZATION AND AUTHORITY. The Company:
(i) is a corporation duly organized, validly existing and in good standing
under the laws of the State of Virginia; (ii) has all requisite power and
authority and all necessary licenses and permits to own and operate its
Properties and to carry on its business as now conducted and as presently
proposed to be conducted; and (iii) has duly qualified or has been duly
licensed, and is authorized to do business and is in good standing, as a foreign
corporation in each jurisdiction where the character of its Properties or the
nature of its activities makes such qualification necessary or desirable.
(b) NO MATERIAL ADVERSE CHANGE. Except as
described in the first, second and third quarter 10-Qs (for fiscal year 1996),
and subsequent press releases dated November 20, 1996, December 26, 1996 and
February 4, 1997, of TFC Enterprises, Inc., and except as described to the
Holder with respect to the existence of certain Material changes as of December
31, 1996, since December 31, 1995, there has been no change in the financial
condition, operations, business, properties or prospects of the Company or any
Subsidiary except changes that individually or in the aggregate could not
reasonably be expected to have a Material Adverse Effect and there has been no
Material change in the Liabilities of the Company and its Subsidiaries.
(c) FULL DISCLOSURE. Each written statement
and all written materials furnished by, or on behalf of, the Company to the
Holder in connection with this Amendment and Waiver do not contain any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements contained therein or herein not misleading in light of the
circumstances under which they were made. There is no fact known to the Company
which the Company has not disclosed to the Holder in writing that could
reasonably be expected to have a Material Adverse Effect that has not been set
forth herein or in the written materials delivered to you by the Company
specifically for use in connection with this Amendment.
(d) TRANSACTION IS LEGAL AND AUTHORIZED. The
execution and delivery of this Amendment and Waiver by the Company, the
consummation of each of the transactions contemplated by this Amendment and
Waiver and the compliance by the Company with all the provisions of this
Amendment and Waiver and the Amended Note Agreement: (i) are within the
corporate powers of the Company; and (ii) are legal and do not conflict with,
result in any breach in any of the provisions of, or constitute a default (or
require any consent other than the consents heretofore obtained) under, or
result in the creation of any Lien upon any Property of the Company under the
provisions of, any agreement or instrument to which it is a party or by which it
or any of its Property may be bound.
(e) AMENDMENT AND WAIVER IS ENFORCEABLE. The
obligations of the Company set forth in this Amendment and Waiver and the
Amended Note Agreement are valid, binding and enforceable in accordance with
their respective terms, except as the enforceability hereof and of the Amended
Note Agreement may be: (i) limited by bankruptcy, insolvency or other similar
laws affecting the enforceability of creditors' rights generally; and (ii)
subject to the availability of equitable remedies.
(f) NO DEFAULTS. After giving effect to the
amendments in Section 4 and the waivers in Section 6 of this Amendment and
Waiver and after giving effect to the New GECC Agreement, no event has occurred
and no condition exists which, upon execution and delivery of this Amendment and
Waiver, would constitute a Default or Event of Default.
SECTION 3. CONDITIONS PRECEDENT.
This Amendment and Waiver shall have no effect until all of the
following conditions precedent shall have been fulfilled (such time of
effectiveness is referred to as the "Effective Date"):
(a) WARRANTIES AND REPRESENTATIONS TRUE. The
warranties and representations set forth in Section 2 shall be true in all
material respects.
(b) NO DEFAULT OR EVENT OF DEFAULT. No
Default or Event of Default exists or will exist immediately after, and
after giving effect to, the consummation of the transactions contemplated by
this Amendment and Waiver.
(c) PROCEEDINGS SATISFACTORY. All proceedings
taken in connection with the execution and delivery of this Amendment and
Waiver and the transactions contemplated hereby shall be satisfactory to the
Holder and its in-house counsel; and the Holder and its in-house counsel shall
have received copies of such documents and papers as they may reasonably request
in connection therewith.
(d) BANK LOAN AGREEMENT. The Company shall
have paid or caused to be paid all amounts owing to NationsBank, N.A. (the
"Bank") under the Loan and Security Agreement, dated as of December 27, 1994,
other than $400,000 of the amount owed to the Bank with respect to which the
Bank has agreed to accept an unsecured promissory note payable by the Company to
the Bank, in the form attached to Amendment No. 1 to the New GECC Agreement, and
shall provide evidence that payment has been made satisfactory in form and
substance to the Holder and its in-house counsel.
(e) APPROVAL OF GECC LOAN AGREEMENT. The
Company and GECC shall have executed and delivered the New GECC Agreement
(including Amendment No. 1 thereto) in form and substance satisfactory to the
Holder and its in-house counsel.
(f) PAYMENT OF FEES. In connection with the
execution of this Amendment and Waiver the Company shall have paid the Holder a
fee of $12,870.
(g) ALLONGE. The Company shall have
executed and delivered to the Holder an Allonge in the form of Annex 1 for
each outstanding Note held by the Holder.
SECTION 4. AMENDMENT THE EXISTING NOTE AGREEMENT.
(a) SECTION 8.5. Section 8.5 of the Existing
Note Agreement is hereby amended to read in full as follows:
"8.5 TOTAL LIABILITIES RATIO.
The ratio of (x) Total Liabilities minus
Subordinated Indebtedness to (y) Consolidated Tangible
Net Worth plus Senior Subordinated Indebtedness minus
receivables from shareholders, officers and employees of
the Company and its Subsidiaries, will not at any time
be greater than the ratios set forth below during the
following periods:
Effective Date through 12/31/97 4.6:1
From 1/1/98 through 12/31/98 4.2:1"
(b) SECTION 8.7. Section 8.7 of the Existing
Note Agreement is hereby amended to read in full as follows:
"8.7 PRE-TAX EARNINGS AVAILABLE FOR FIXED
CHARGES.
The ratio of Consolidated Pre-Tax Earnings
Available for Fixed Charges to Consolidated Fixed
Charges will at all times exceed the ratios set forth
below during the following periods:
From 1/1/97 through 12/31/97 1.10:1
From 1/1/98 through 12/31/98 1.20:1"
(c) SECTION 8.8. Section 8.8 of the Existing
Note Agreement is hereby amended to read in full as follows:
"8.8 RESERVE RATIO; DEALER RESERVES.
(i) During the period
from the Effective Date through December 31, 1998,
the Company shale not allow the sun, of (x) Dealer
Reserves plus (y) allowances for credit losses to fall
below 100% of all Contracts and other installment
receivables owned by it which are Two Due or more
delinquent. The term "TWO DUE" means the following
payment delinquency status determined as of the end of a
calendar month:
SCHEDULED PAYMENTS DUE SCHEDULE OF PAYMENTS
AND UNPAID IN WHOLE
Monthly 2
Semi-Monthly 3
Bi-weekly 3
Weekly 6
(ii) The Company will maintain the
sum of (x) Dealer Reserves plus (y) allowances for
credit losses in an amount at least equal to 5.75% of
the Aggregate Principal Amount of Receivables of the
Company. The term "AGGREGATE PRINCIPAL AMOUNT OF
RECEIVABLES" means gross receivables less any unearned
amounts with respect thereto."
(b) SECTION 8.9. Section 8.9 of the Existing
Note Agreement is hereby amended to read in full as follows:
"8.9 CONSOLIDATED TANGIBLE NET WORTH.
During the period commencing January 1,
1997 and continuing until December 31, 1998, the Company
will not at any time permit Consolidated Tangible Net
Worth to be less than the following amounts for the
following periods:
From 1/1/97 through 12/31/97 $17,000,000
Pro 1/1/98 through 12/31/98 $20,000,000
provided, however, until First Community Finance, Inc.
("FCF") enters into and consummates a loan transaction
with Hibernia National Bank (the "Hibernia Financing"),
pursuant to a commitment letter attached to Amendment
No. 1 to the New GECC Agreement (or, if FCF fails to
consummate the Hibernia Financing, any other substitute
financing which results in the release by GECC of its
lien and security interest in the FCF Stock (as defined
in the New GECC Agreement) and the release of FCF from
the guaranties in favor of GECC), the Company will not
at any time permit Consolidated Net Worth to be less
than the following amounts for the following periods:
From 1 /1/97 through 12/31/97 $11,000,000
From 1/1/98 through 12/31/98 $14,000,000"
(e) SECTION 10.2 The definition of "Senior
Financing Agreements" contained in Section 10.2 of the Existing Note Agreement
shall be amended and restated as follows:
'"SENIOR FINANCING AGREEMENTS" means the
Amended and Restated Motor Vehicle Installment Contract
Loan and Security Agreement, as amended from time to
time, by and between the Company and General Electric
Capital Corporation, a New York Corporation, dated as of
December 20, 1996, pursuant to which the Company may
borrow up to $110,000,000.'
SECTION 5. PAYMENT OF FEES OR OTHER COMPENSATION.
The Company agrees that in the event the Company pays, offers to pay
or is required to pay any remuneration (other than (x) the Line Fee [as such
term is defined in the New GECC Agreement, (y) warrants granted by TFC
Enterprises, Inc. in connection with the New GECC Agreement and (z)
reimbursement of expenses incurred by GECC in connection with the negotiation
and delivery of the New GECC Agreement, including legal fees), whether by way of
supplemental or additional interest, fee or otherwise, to GECC, as consideration
for or as an inducement to the entering into by GECC of any amendment,
modification or waiver with respect to the New GECC Agreement, it shall pay to
the Holder the same remuneration, with the Holder receiving an amount equal to
its pro rata share of all amounts so paid to GECC based on the outstanding
principal amount of the Notes, and the amounts then owing to GECC.
SECTION 6. WAIVER OF DEFAULTS.
Subject to compliance with the conditions for the effectiveness of
this Amendment and Waiver set forth in Section 3 and further subject to the
conditions set forth in Section 7, the Holder hereby (1) waives (a) the Event of
Default under Section 8.7 of the Existing Note Agreement resulting from the
failure of the Company to comply with the provisions of said Section 8.7 for the
fiscal year ending December 31, 1995, and for the period from January 1, 1996
through and including the Effective Date, (b) the Event of Default under Section
8.5 of the Existing Note Agreement resulting frown the failure of the Company to
comply with the provisions of Section 8.5 for the fiscal year ending December
31, 1995, and for the period from January 1, 1996 through and including the
Effective Date, and (c) for the period from January 1, 1996 through and
including the Effective Date, compliance with the provisions of Section 8.9 of
the Existing Note Agreement.
SECTION 7. FURTHER CONDITIONS.
The Company hereby agrees that the waivers and the forbearance
contained in Section 5 are subject to compliance with each of the following
conditions:
(a) The Company shall provide the Holder with
monthly business reviews, including financial statements and revised
forecasts, within forty-five (45) days after the end of each calendar month (and
in any event when such documents are delivered to GECC pursuant to the New GECC
Agreement), covering (i) financial performance and (ii) cash flow projections of
the Company's future business as revised from time to time.
(b) In addition to the information required to
be provided pursuant to paragraph (b) above, the Company shall provide the
Holder, not later than forty-five (45) days following the end of each calendar
month (and in any event when such documents are delivered to GECC pursuant to
the New GECC Agreement), with the portfolio and operating information required
by Section 5.1(C) and Exhibit 5.1(C) of the New GECC Agreement as such Section
and such Exhibit may be amended front tinge to time. All such reports shall be
in a format and on a medium readable by the Holder's computer software, or such
other format or medium acceptable to the Holder.
(c) On or prior to November 30, 1998, the
Company shall have a firm commitment from GECC to extend the New GECC Agreement
on terms acceptable to the Holder until at least December 31, 2000 or shall have
a firm commitment with a lender acceptable to the Holder to replace the
financing provided by the New GECC Agreement. The failure of the Company to have
in effect the financing provided by GECC or substantially similar financing for
not less than $110,000,000, shall constitute an Event of Default under the
Amended Note Agreement. If GECC terminates the New GECC Agreement for any
reason, the Company shall notify the Holder immediately of such occurrence.
(d) If the Company shall amend or agree to
amend the terms and conditions of the New GECC Agreement, or enter into a new
agreement with GECC which has the effect of amending the New GECC Agreement, the
Company shall promptly notify the Holder and, at the request of' such Holder,
enter into an amendment of this Agreement or a new agreement which has the
effect of amending this Agreement, reflecting the changes to the New GECC
Agreement.
This Amendment and Waiver shall constitute the amendment contemplated by the
final paragraph of Section 6 of the Forbearance Agreement as amended and upon
compliance with the conditions set forth in Section 3 of this Amendment and
Waiver, the Forbearance Agreement shall be of no further force and effect.
SECTION 8. EFFECT OF AMENDMENT.
Except as expressly provided in this Amendment and Waiver, the
Existing Note Agreement and the Notes shall remain in full force and effect,
without modification or amendment. This Amendment and Waiver shall be binding
upon, and shall inure to the benefit of, the successors and assigns of the
parties hereto and the holders from time to time of the Notes.
SECTION 9. EXPENSES.
The Company shall promptly (and in any event within thirty (30) days of
receiving any statement or invoice therefor) pay all expenses relating to this
Amendment and Waiver, including but not limited to the reasonable allocated
costs and disbursements of in-house counsel to the Holder. The obligations of
the Company under this Section 8 shall survive the termination of this Amendment
and Waiver.
SECTION 10. SURVIVAL.
All warranties, representations, certifications and covenants made by the
Company in this Amendment and Waiver or in any certificate or other instrument
delivered by it or on its behalf under this Amendment and Waiver shall be
considered to have been relied upon by the Holder and shall survive the
execution of this Amendment and Waiver, regardless of any investigation made by
or on behalf of the Holder. All statements in any such certificate or other
instrument shall constitute warranties and representations of the Company under
this Amendment and Waiver.
SECTION 11. DUPLICATE ORIGINALS, EXECUTION IN COUNTERPART.
Two or more duplicate originals of this Amendment and Waiver may be
signed by the parties, each of which shall be an original but all of which
together shall constitute one and the same instrument. This Amendment and Waiver
may be executed in one or more counterparts and shall be effective when at least
one counterpart shall have been executed by each party to this Amendment and
Waiver (including the signatories to each of the Consent and the Acknowledgment
that are annexed to this Amendment and Waiver), and each set of counterparts
which, collectively, show execution by each such party to this Amendment and
Waiver shall constitute one duplicate original.
SECTION 12. GOVERNING LAW.
This Amendment and Waiver shall be governed by, and construed in
accordance with, internal Connecticut law.
IN WITNESS WHEREOF, the Company and the Holder have executed this
Amendment Number 10 and Waiver of Note Agreement as of the date first above
written.
CIG & Co. THE FINANCE COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. By: /s/ ▇. ▇. ▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. Name: ▇. ▇. ▇▇▇▇▇, ▇▇.
Title: PARTNER Title: PRESIDENT & CEO
ANNEX 1
ALLONGE DATED AS OF ____________, 1997
TO
13 1/2% SUBORDINATED NON-CONVERTIBLE DATED ____________,19__
REGISTERED IN THE NAME OF CIG & CO.
IN THE PRINCIPAL AMOUNT OF $__________
NUMBER R-[__]
In accordance with that certain Amendment Number 10 and Waiver of Note
Agreement dated as of April 4, 1997 (the "Amendment and Waiver"), amending the
separate Note Purchase Agreements dated as of October 25, 1988 (as amended,
modified or extended prior to the date hereof and front time to time hereafter,
the "Note Agreement"), by and between THE Finance Company (the "Company"), a
Virginia corporation, and each of Connecticut General Life Insurance Company,
CIGNA Property and Casualty Insurance Company (which assigned its interest in
the Notes to Connecticut General Life Insurance Company) and Life insurance
Company of North America (on behalf of each of which the Notes issued thereunder
are registered in the name of its nominee, CIG & Co.), this Allonge has become a
permanent and irrevocable attachment to that certain 13 1/2% Subordinated
Non-Convertible Note due October 15, 1998, registered in the name of CIG & Co.,
in the principal amount of $__________ (the "Note"), dated ____________, 19__,
numbered R-[__], so as to become an integral physical and legal part of such
Note effective as of the date hereof as if the terns hereof were originally
included therein at the date of issuance thereof. All terms used in this Allonge
and not defined herein shall have the meanings ascribed to them in the Note and
the Note Agreement as amended by the Amendment and Waiver.
For good and valuable consideration, the receipt and sufficient of
which are hereby acknowledged, and in accordance with the Amendment and Waiver,
the parties hereto agree that this Allonge effects the following irrevocable
modifications and changes to the Note:
1. Notwithstanding anything contained in the Note or
the Note Agreement to the contrary, for the period commencing
February 1, 1996 through and including March 31, 1997, interest
payable on the Note shall accrue and be payable at the rate of
14.50% per annum and for the period commencing April 1, 1997,
interest payable on the Note shall accrue and be payable at the rate
of 14.60% per annum.
All other terms and conditions of the Note, as modified by this
Allonge, shall continue in full force and effect. This Allonge is governed by,
and shall be construed and enforced in accordance with, Connecticut law.
The face of the Note shall evidence the attachment of this Allonge by
the following legend to be placed thereon: "This Note has been permanently and
irrevocably modified by an Allonge dated as of _________________, 1997 that has
been physically attached hereto."
IN WITNESS WHEREOF, the Company and the holder of the Note have each
caused this Allonge to be duly executed by its duly authorized officer.
CIG & Co. THE Finance Company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. Name:
Title: PARTNER Title: