AMENDMENT NO. 3, EXTENSION, WAIVER AND ASSIGNMENT TO
RESTATED SECURED CREDIT AGREEMENT
This Amendment No. 3, Extension, Waiver and Assignment to Restated Secured
Credit Agreement (this "Amendment") is entered into as of the 31st day of
August, 1996 by and among Universal Premium Acceptance Corporation (the
"Company"), a Missouri corporation, The First National Bank of Boston ("FNBB"),
in its capacity as agent for the Banks hereinafter referred to (in such
capacity, the "Agent"), in its individual capacity as a Bank and in its capacity
as Assignee as contemplated in Section 5 hereof, Magna Bank of Missouri,
successor by merger to Landmark Bank and formerly known as Magna Bank of St.
Louis, in its capacity as Assignor as contemplated in Section 5 hereof
("Magna"), and The Sumitomo Bank, Limited, as successor to The Daiwa Bank,
Limited ("Sumitomo"). Sumitomo and FNBB in its individual capacity are herein
referred to as the "Banks".
WITNESSETH:
WHEREAS, the Company, the Banks and the Agent are parties to that certain
Restated Secured Credit Agreement, dated as of July 29, 1994, as amended by
Amendment No. 1 to Restated Secured Credit Agreement dated as of August 14, 1995
and Amendment No. 2 and Waiver dated as of April 3, 1996 (as so amended, the
"Restated Secured Credit Agreement"); and
WHEREAS, the Company has requested the Agent and the Banks to extend the
maturity of the Restated Secured Credit Agreement for an additional period,
reduce certain pricing applicable thereto and amend a certain financial covenant
applicable to the Company thereunder; and
WHEREAS, the Agent and the Banks are willing to modify the Restated
Secured Credit Agreement to reflect such actions on the terms and subject to the
conditions set forth below; and
WHEREAS, Magna has requested FNBB to assume all of its outstanding rights
and obligations under the Restated Secured Credit Agreement, to be effective as
of the date of this Amendment, and FNBB is willing to do so on the terms and
subject to the conditions set forth below;
NOW, THEREFORE, in consideration of the premises set forth above, and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. Terms defined in the Restated Secured Credit Agreement
which are used herein shall have the same meanings as set forth in the Restated
Secured Credit Agreement unless otherwise defined herein.
2. EXTENSION OF MATURITY DATE. As provided in the Restated Secured
Credit Agreement, the Revolving Loan Commitment is set to expire on August 31,
1996, due to the Banks' having given notice of the occurrence of the Maturity
Date on such date as contemplated in the definition of "Maturity Date" set forth
in Section 10.1 of the Restated Secured Credit Agreement. Notwithstanding such
notice, the Banks hereby agree to extend the Maturity Date for an additional
period to October 31, 1996. This extension shall be effective solely for the
period described above and shall not be deemed to be an agreement to grant any
further extensions of the Maturity Date, or a waiver of any rights or remedies
that the Banks may now or hereafter exercise under the Restated Secured Credit
Agreement, including the right to receive payment in full of all amounts then
outstanding on October 31, 1996.
3. AMENDMENTS TO RESTATED SECURED CREDIT AGREEMENT. Effective as of the
date first above written and subject to the satisfaction of the conditions
precedent set forth in Section 6 below, the Restated Secured Credit Agreement is
hereby amended as follows:
(a) Section 3.1.1 (a) of the Restated Secured Credit Agreement is amended
and restated in its entirety as follows:
"(a) The term "Effective Rate" shall mean, with respect to each portion
of the Revolving Loan (i) not subject to a LIBOR Pricing Option, a rate per
annum equal to the Base Rate, and (ii) subject to a LIBOR Pricing Option, a
rate per annum equal to the LIBOR Rate plus two percent (2.00%) for each
Interest Period applicable thereto; provided that with respect to the
Percentage Interest of FNBB in any portion of any Revolving Loan from and
after August 31, 1996, the Effective Rate shall mean, with respect to all
portions of the Revolving Loan (y) not subject to a LIBOR Pricing Option, a
rate per annum equal to 7%, and (z) subject to a LIBOR Pricing Option, a
rate per annum equal to the LIBOR Rate plus two percent (2.00%) for each
Interest Period applicable thereto in effect on August 31, 1996 but
expiring after such date, and a rate per annum equal to 7% after the expiry
of such interest period.".
(b) Section 8.13 of the Restated Secured Credit Agreement is hereby
amended and restated in its entirety as follows:
"8.13. Allowance for Losses. The Company shall not permit the "Allowance
for Losses" account on its balance sheet to, at the end of each month for
two consecutive months, be less than 1.0% of the aggregate amount of
finance receivables (net of unearned finance charges) on such balance sheet
for such months.".
(c) Schedule 13.1 to the Restated Secured Credit Agreement is amended by
deleting said schedule in its entirety and substituting therefor a new Schedule
13.1 in the form attached to this Amendment.
4. WAIVERS OF THE RESTATED SECURED CREDIT AGREEMENT. The Company has
advised the Banks that due to lower levels of historic losses and current
industry practice, the Company has changed the level of reserves maintained
against its finance receivables. This action caused a breach of the covenant
contained in Section 8.13 of the Restated Secured Credit Agreement (as in effect
prior to the date hereof), which section prohibited the Company from permitting
the "Allowance for Losses" account on its balance sheet to be less than 2.0% of
the aggregate amount of finance receivables (net of unearned finance charges) on
such balance sheet as of the end of each month for two consecutive months. Such
breach constitutes an Event of Default under Section 9.1.2 of the Restated
Secured Credit Agreement for the two-month periods ended May 31, 1996 and June
30, 1996. The Banks are willing to waive such Event of Default for such
periods, on the terms and conditions set forth herein, provided that the waivers
contained in this Amendment shall be effective solely for the matters and
periods described above and shall not be deemed to be a waiver of any other term
or condition of the Restated Secured Credit Agreement, or a waiver of any rights
or remedies that the Banks may now or hereafter exercise under the Restated
Secured Credit Agreement, including the right to enforce compliance by the
Company of said Sections 8.13 and 9.1.2 of the Restated Secured Credit Agreement
at all times after the date hereof.
5. ASSIGNMENT AND ASSUMPTION OF MAGNA'S SHARE OF REVOLVING LOAN
COMMITMENT AND REVOLVING LOANS.
(a) Assignment and Transfer of Assigned Rights. Effective on and as of
the date of this Amendment, Magna, as assignor (in such capacity, the
"Assignor") hereby irrevocably sells, transfers and assigns to FNBB, as assignee
(in such capacity, the "Assignee"), without recourse, and the Assignee hereby
purchases and acquires from the Assignor, 100% (the "Assigned Percentage") of
the Assignor's right, title and interest in and to the Restated Secured Credit
Agreement and the Bank Obligations owed to the Assignor thereunder and under the
other Bank Agreements, whether now existing or hereafter arising thereunder,
including without limitation the Percentage Interest of the Assignor in the
Revolving Loan Account evidencing the Revolving Loans and any collateral
security held in connection therewith (collectively referred to herein as the
"Assigned Rights"). Upon the execution of this Amendment by the parties hereto
and the payment of the purchase price by the Assignee as provided in Section
5(c) hereof, the Assignee shall acquire the Assigned Rights and the Company
shall thereafter make any payments due under the Restated Secured Credit
Agreement or the other Bank Agreements with respect to the Assigned Rights to
the Agent for the account of the Assignee. If any amount is received or
recovered by the Assignor in respect of the Assigned Rights on or after the date
hereof, the Assignor shall hold such amount in trust on behalf of the Assignee
and shall immediately pay such amount in full to the Assignee.
(b) Assumption of Obligations. Effective on and as of the date hereof,
the Assignee hereby assumes from the Assignor, and the Assignor is hereby
expressly and absolutely released from, the Assigned Percentage of the
Assignor's obligations arising under the Restated Secured Credit Agreement,
including without limitation the Assignor's obligation to fund a Percentage
Interest of each Revolving Loan as contemplated in the Restated Secured Credit
Agreement.
(c) Purchase Price. Concurrent with the execution of this Amendment by
the parties hereto, as full consideration for the sale, transfer and assignment
by the Assignor to the Assignee of the Assigned Rights, the Assignee shall pay
to the Assignor an amount equal to the Assignor's Percentage Interest of the
Assignor in the Revolving Loan Account evidencing the Revolving Loans, all
interest accrued thereon and all accrued commitment fees in immediately
available funds, by wire transfer of that amount to such account as the Assignor
may advise the Assignee.
(d) Representations and Warranties.
(i) The Assignor hereby represents and warrants to the Assignee as
follows:
(A) the Assignor has full power and authority to execute, deliver and
perform this Amendment in accordance with its terms, and the execution,
delivery and performance of this Amendment by the Assignor, and the
assignment and transfer of the Assigned Rights, have been duly authorized
by all necessary action of the Assignor. This Amendment constitutes the
legal, valid and binding obligation of the Assignor, enforceable against
the Assignor in accordance with its terms;
(B) the execution, delivery and performance of this Amendment by the
Assignor do not require any registration with or consent or approval of, or
any other action by, any governmental or other agency or other authority,
or any other party; and
(C) the Assignor is the legal and beneficial owner of the Assigned
Rights, free and clear of any claim, defense or counterclaim known to the
Assignor which may be asserted by the Company against the Assignor.
(ii) The Assignee hereby represents and warrants to the Assignor as
follows:
(A) the Assignee has the full power and authority to execute, deliver
and perform this Amendment in accordance with its terms, and the execution,
delivery and performance of this Amendment by the Assignee have been duly
authorized by all necessary action of the Assignee. This Amendment
constitutes the legal, valid and binding obligation of the Assignee
enforceable against the Assignee in accordance with its terms;
(B) the Assignee understands and agrees that, other than the
representations and warranties set forth in Section 5(d)(i) hereof, the
Assignor is not responsible for, and is not making any representation or
warranty with respect to, any closing condition, covenant or undertaking
under the Restated Secured Credit Agreement having been met or complied
with; and
(C) the Assignee has independently and without reliance upon the
Assignor and based on such documents and information as the Assignee has
deemed appropriate, made its own credit analysis and decision to purchase
the Assigned Rights.
6. CONDITIONS OF EFFECTIVENESS. This Amendment shall become effective as
of the date first above written when and only when the Agent has received the
following:
(a) at least one copy (or counterparts) of this Amendment duly
executed and delivered by each of the parties hereto; and
(b) a certificate of the Secretary or an Assistant Secretary of the
Company with respect to resolutions of the Board of Directors of the
Company authorizing the execution and delivery of this Amendment and the
performance of the Restated Secured Credit Agreement as amended hereby and
identifying the officer(s) authorized to execute, deliver and take all
other actions required under this Amendment, and providing specimen
signatures of such officers.
7. REPRESENTATIONS AND WARRANTIES, ETC.
(a) The Company represents and warrants to the Agent and the Banks that
(i) the Company has the corporate power and all necessary authority to execute
and deliver this Amendment, and (ii) each of this Amendment and the Restated
Secured Credit Agreement (as amended hereby) is the legal, valid and binding
obligation of the Company enforceable against the Company in accordance with its
respective terms.
(b) The Company hereby reaffirms all covenants, representations and
warranties made in the Restated Secured Credit Agreement to the extent not
amended hereby and agrees that all such covenants, representations and
warranties shall be deemed to have been remade as of the date of this Amendment.
8. REFERENCES, ETC.
(a) Upon and after the effectiveness of this Amendment, (i) each reference
in the Restated Secured Credit Agreement to "this Agreement," "hereunder,"
"hereof," "herein" or words of like import shall mean and be a reference to the
Restated Secured Credit Agreement as amended hereby, and (ii) each reference to
the Restated Secured Credit Agreement in all other Bank Agreements and other
related documents shall mean and be a reference to the Restated Secured Credit
Agreement, as amended hereby.
(b) Except as specifically amended or waived above, the terms of the
Restated Secured Credit Agreement, the Notes, the Security Agreement and all
other Bank Agreements shall remain in full force and effect and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as an amendment to, or a waiver of,
any provisions of the Restated Secured Credit Agreement or any right, power or
remedy of the Agent of the Banks.
9. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the internal laws (as opposed to the conflicts of law
provisions) of The Commonwealth of Massachusetts.
10. HEADINGS. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
11. COUNTERPARTS, ETC. This Amendment may be executed by one or more of
the parties to the Amendment on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of this Amendment may be made by telecopy of a duly signed
counterpart hereof. A counterpart of this Amendment is being signed by Magna
solely in its capacity as Assignor under Section 5 of this Amendment.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and
year first above written.
UNIVERSAL PREMIUM ACCEPTANCE
CORPORATION
By:
Title:
THE FIRST NATIONAL BANK OF BOSTON,
INDIVIDUALLY, AS ASSIGNEE AND AS AGENT
By:
Title:
MAGNA BANK OF MISSOURI, AS ASSIGNOR
By:
Title:
THE SUMITOMO BANK, LIMITED
By:
Title:
By:
Title: