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Exhibit 10.5
CONSENT AND SECOND AMENDMENT TO THE FOURTH AMENDED
AND RESTATED REVOLVING CREDIT AGREEMENT
This CONSENT AND SECOND AMENDMENT TO THE FOURTH AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT (this "Amendment") is made as of March 7, 1997 by
and among FIRST ENTERPRISE FINANCIAL GROUP, INC., formerly known as Centre
Capital Funding Corp., an Illinois corporation ("FEFG"), FIRST ENTERPRISE
ACCEPTANCE COMPANY ("FEAC"; FEFG and FEAC are collectively referred to herein
as "Borrowers"), FIRST MIDWEST BANK, N.A. ("First Midwest"), BANK ONE,
ILLINOIS, NA ("Bank One"), THE FIRST NATIONAL BANK OF CHICAGO ("First
Chicago"), HARRIS BANK PALATINE, N.A. ("Harris"), FLEET BANK, NATIONAL
ASSOCIATION ("Fleet"), CORESTATES BANK, N.A. ("CoreStates") and LASALLE
NATIONAL BANK, a national banking association ("LaSalle") (LaSalle, First
Midwest, Bank One, First Chicago, Harris, Fleet and CoreStates are sometimes
collectively referred to herein as the "Banks" and each individually as a
"Bank") and LaSalle as Agent for the Banks (the "Agent").
BACKGROUND
A. Borrowers, Banks and the Agent entered into a certain Fourth Amended
and Restated Revolving Credit Agreement dated as of October 15, 1996, as
amended as of January 31, 1997, which amended and restated in its entirety that
certain Third Amended and Restated Revolving Credit Agreement dated as of
September 1, 1995, as amended (as the same may be hereafter amended, modified
or supplemented from time to time, the "Loan Agreement"), pursuant to which
LaSalle and the other Banks have made revolving loans and advances to
Borrowers.
B. Borrowers desire to enter into certain transactions to securitize
certain of their assets (the "1997 Securitization"), pursuant to which FEFG has
organized and will capitalize First Enterprise Securitization Co. II ("FESC
II"), a Delaware corporation and a special purpose subsidiary to which it and
FEAC will sell, assign and pledge certain Automobile Finance Receivables and
related rights to such special purpose subsidiary and continue to service such
Automobile Finance Receivables after their sale in accordance with the terms of
that certain Sale and Servicing Agreement dated as of March 1, 1997, among
Borrowers, FESC II, and LaSalle National Bank, as backup servicer, and all
other agreements, instruments an documents executed and delivered in connection
with the 1997 Securitization (collectively, the "1997 Securitization
Transaction Documents").
C. Borrowers further desire to amend the Loan Agreement to provide for
the Banks' consent to the formation and capitalization of FESC II and the 1997
Securitization and certain other modifications in the terms thereof.
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D. The Banks and the Agent are willing to consent to the 1997
Securitization and to amend the Loan Agreement provided that Borrowers, Banks
and Agent enter into this Amendment and upon the terms and conditions set forth
herein.
E. Terms used herein but not defined herein shall have the meanings
assigned to them in the Loan Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, and intending to be legally bound hereby, the
parties hereto agree as follows:
SECTION 1 AMENDMENTS TO LOAN AGREEMENT
1.1 Section 1.1 of the Loan Agreement is hereby amended by inserting
the following new or amended definitions in their appropriate alphabetical
positions:
"Automobile Finance Receivable Reports" means those reports prepared by
the Borrowers containing (i) a summary of the Borrowers' Automobile Finance
Receivables balance as of the end of each calendar month (including separate
information with respect to Automobile Finance Receivables in the Securitized
Portfolio and the Off Balance Sheet Securitized Portfolio and with respect to
the Sold Receivables), which balances the Borrowers shall represent and warrant
as being calculated in accordance with GAAP and accurately reflecting the
delinquency status on a contractual basis of the Automobile Finance Receivables
(including a reasonable provision for uncollectibility) and which shall be
presented in a format acceptable to the Banks, (ii) a reconciliation of the
loan loss reserves and other similar reserves acceptable to the Banks,
including separate information with respect to Automobile Finance Receivables
in the Securitized Portfolio and the Off Balance Sheet Securitized Portfolio
and with respect to the Sold Receivables) and (iii) summaries of repossessions
and recoveries, allowable delinquencies and deferred Automobile Finance
Receivables, each including separate information with respect to Automobile
Finance Receivables in the Securitized Portfolio, the Off Balance Sheet
Securitized Portfolio and with respect to the Sold Receivables).
"Existing Securitization Transaction" means (a) FEFG's sale,
assignment, pledge or contribution of the Eligible Automobile Receivables
listed and described in Schedule A of the 1996 Sale and Servicing Agreement and
all rights related thereto to FESC as part of the securitization of such
Eligible Automobile Finance Receivables pursuant to the terms of the 1996 Sale
and Servicing Agreement and the 1996 Trust Indenture, and the related
transactions contemplated by the Securitization Transaction Documents and (b)
the payment to the Agent of the Payoff Amount associated with such Eligible
Automobile Finance Receivables.
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"FESC II" means First Enterprise Securitization Co. II, a Delaware
corporation.
"1996 Sale and Servicing Agreement means the Sale and Servicing
Agreement dated as of June 1, 1996, among FEFG, FESC and LaSalle National Bank,
as backup servicer.
"1996 Trust Indenture" means that certain Indenture dated as of June 1,
1996 between FESC and LaSalle National Bank, as Trustee.
"1997 Sale and Servicing Agreement means the Sale and Servicing
Agreement dated as of March 1, 1997, among Borrowers, FESC II and LaSalle
National Bank, as backup servicer.
"1997 Trust Indenture" means that certain Indenture dated as of March
1, 1997 between FESC II and LaSalle National Bank, as Trustee.
"Off Balance Sheet Securitized Portfolio" means all of the Automobile
Finance Receivables sold or contributed to an SPE in connection with a
Securitization Transaction which Automobile Finance Receivables would not
thereafter be reflected on the consolidated balance sheet of Borrowers and
their subsidiaries in accordance with generally accepted accounting principles.
"Permitted Securitization Transaction" means the Existing
Securitization Transaction and any Securitization Transaction hereafter entered
into by Borrowers with the written consent of Agent and Banks.
"Securitized Portfolio" means all Automobile Finance Receivables
contributed to an SPE in connection with a Permitted Securitization Transaction
exclusive of the Off Balance Sheet Securitized Portfolio.
1.2 Section 7.27 of the Loan Agreement is hereby amended and restated
in its entirety as follows:
"7.27 Modification of Certain Agreements. Neither Borrower nor
any of its Subsidiaries shall consent to or enter into any amendment,
supplement or other modification of any term, provision or agreement
contained in any of the Securitization Transaction Documents, if such
amendment, supplement or other modification would be materially adverse
to the Banks, in their sole judgment."
1.3 Section 10.1(m) is hereby amended and restated in its entirety as
follows:
"(m) If an "Event of Default" (as defined in either the 1996
Trust Indenture or the 1997 Trust Indenture) shall occur under either
the
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1996 Trust Indenture or the 1997 Trust Indenture, or either
Borrower or any of their Subsidiaries shall be in default of any term,
covenant, obligation or condition under the Securitization Transaction
Documents which has not been cured within the time provided therein, if
any."
1.4 Schedule 6.9 of the Loan Agreement is hereby amended and restated
in its entirety in the form of Exhibit A hereto.
SECTION 2 REPRESENTATIONS AND WARRANTIES
To induce the Banks to consent to the 1997 Securitization and the
formation and capitalization of FESC II and amend the Loan Agreement, Borrowers
represent and warrant to Banks that:
2.1 Compliance with Loan Agreement. On the date hereof, Borrowers are
in compliance with the terms and provisions set forth in the Loan Agreement (as
modified by this Amendment), and no unwaived Event of Default specified in
Section 10 of the Loan Agreement nor any event which would, upon notice or
lapse of time, or both, constitute such an Event of Default, has occurred.
2.2 Representations and Warranties. On the date hereof, the
representations and warranties and covenants set forth in Sections 6 and 7 of
the Loan Agreement (as modified by this Amendment) are true and correct with
the same effect as though such representations and warranties and covenants had
been made on the date hereof, except to the extent that such representations
and warranties and covenants expressly relate to an earlier date.
2.3 Corporate Authority of Borrowers. Borrowers have full power and
authority to enter into this Amendment, to borrow additional funds and to incur
and perform the obligations provided for under this Amendment and the Loan
Agreement, all of which have been duly authorized by all proper and necessary
corporate action. No consent or approval of stockholders or of any public
authority or regulatory body is required as a condition to the validity or
enforceability of this Amendment.
2.4 Amendment as Binding Agreement. This Amendment constitutes the
valid and legally binding obligation of Borrowers, fully enforceable against
Borrowers, in accordance with its terms.
2.5 No Conflicting Agreements. The execution and performance by the
Borrowers of this Amendment will not (i) violate any provision of law, any
order of any court or other agency of government, any provision of the Articles
or By-Laws of either Borrower, or (ii) violate any indenture, contract,
agreement or other instrument to which either Borrower is a party, or by which
its property is bound, or be in conflict with, result in a breach of or
constitute (with due notice
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and/or lapse of time) a default under, any such indenture, contract, agreement
or other instrument or result in the creation or imposition of any lien, charge
or encumbrance of any nature whatsoever upon any of the property or assets of
either Borrower.
SECTION 3 CONDITIONS PRECEDENT
The agreement by the Banks to amend the Loan Agreement and to provide
their consents is subject to the following conditions precedent:
3.1 Each Borrower shall have executed and delivered to Banks a
certified copy of the resolutions of its Board of Directors authorizing the
execution and delivery of this Amendment and the consummation of the
transactions contemplated thereby.
3.2 FESC II shall have provided to Agent a certificate of its corporate
secretary attaching (i) the Articles of Incorporation of FESC II, (ii) the
By-laws of FESC II, and (iii) a good standing certificate of FESC II in the
State of Delaware and qualifications as a foreign corporation in all
jurisdictions where FESC is required to be qualified.
SECTION 4 CONSENT TO TRANSACTIONS
4.1 FESC II. Upon the satisfaction of the conditions precedent set
forth in Section 3 hereof, notwithstanding any provisions of the Loan Agreement
to the contrary, Banks hereby consent to the formation and capitalization of
FESC II to the extent required by Delaware corporate law.
4.2 1997 Securitization. Upon satisfaction of the conditions precedent
set forth in Section 3 hereof, and provided that Agent has received copies of
all 1997 Securitization Transaction Documents in their execution form
reasonably requested by Agent, together with a schedule of all Automobile
Finance Receivables to be sold in the 1997 Securitization Transaction, and
Agent shall have determined that no selection procedures believed by Agent to
be adverse to the interest of the Banks have been used in the selection of the
Automobile Finance Receivables to be sold in the 1997 Securitization
Transaction, except for criteria specifically set forth in the 1997 Sale and
Servicing Agreement, Banks hereby consent to: (i) each of Borrowers and FESC II
entering into the 1997 Securitization Transaction Documents, (ii) the execution
and filing by Borrowers and FESC II, prior to the closing date of the 1997
Securitization of UCC-1's required by the 1997 Securitization Transaction
Documents, (iii) the execution and delivery by Agent on behalf of the Banks, to
Borrower of a Payoff Letter in the form of Exhibit 4.2 to this Amendment to
evidence satisfaction of all of the conditions precedent to the consent of the
Banks to the 1997 Securitization, and (iv) each of Borrowers and FESC II
performing their respective obligations under the 1997 Securitization
Transaction Documents, including, without limitation, the following:
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(a) the sale to FESC II by Borrowers on the closing date of the 1997
Securitization, and the purchase by FESC II from Borrowers, of (i) those
"Receivables" (as such term is defined in the 1997 Sale and Servicing
Agreement) listed in Schedule A of the 1997 Sale and Servicing Agreement, which
as of January 31, 1997, had an aggregate Principal Balance (as defined in the
1997 Securitization Transaction Documents) of not more than $48,000,000,
together with all collections on such Receivables received thereunder during
the period from the Cutoff Date (as defined in the 1997 Sale and Servicing
Agreement) and all Liquidation Proceeds and recoveries received with respect to
such Receivables and (ii) the "Other Conveyed Property" (as such term is
defined in the 1997 Sale and Servicing Agreement);
(b) the repurchase by Borrowers of such Receivables in whole or in
part, as required or optionally permitted under the 1997 Sale and Servicing
Agreement; provided, however, any Receivables repurchased by Borrowers under
the 1997 Sale and Servicing Agreement shall not be considered Eligible
Automobile Finance Receivables, but shall be Collateral securing the
Obligations;
(c) the indemnification of LaSalle National Bank, as the Backup
Servicer and the Trustee, the holders of the Notes and the Security Insurer and
the payment of their fees, premiums and expenses by Borrowers and FESC II
pursuant to the 1997 Securitization Transaction Documents; and
(d) the guaranty by FEFG of the obligations of FESC II and Borrowers to
LaSalle National Bank, as the Backup Servicer and Trustee, pursuant to the 1997
Securitization Transaction Documents.
SECTION 5 PROCEDURES REGARDING RELEASE OF LIENS
5.1 Subject to the conditions set forth herein, the Banks hereby
authorize the Agent to release and discharge on the closing date of the 1997
Securitization all security interests granted by the Borrowers to the Agent in
the Receivables (as defined in the 1997 Sale and Servicing Agreement) and Other
Conveyed Property which are the subject of the 1997 Securitization Transaction
as more particularly described on Schedule A to the 1997 Sale and Servicing
Agreement. The Agent, as agent for the Banks, hereby releases and discharges
all security interests granted by the Borrowers to the Agent in the Receivables
and the Other Conveyed Property, subject to the conditions set forth in Section
5.3 hereof. Agent hereby agrees to execute, acknowledge and deliver to
Borrowers and FESC II such instruments, agreements and other documents,
including, without limitation, UCC partial release statements releasing the
Receivables (as defined in the 1997 Sale and Servicing Agreement) and the Other
Conveyed Property from the lien of any UCC financing statements filed against
Borrowers, and take all such further actions as Borrowers or FESC II shall
reasonably request in order to effect the release, discharge and termination
described in this section.
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5.2 Acknowledgment that Receivables and Other Conveyed Property is Not
Collateral. The Lenders and the Agent acknowledge that, after the consummation
of the 1997 Securitization, certain documents, instruments and agreements and
other property which relate to the Receivables (as defined in the 1997 Sale and
Servicing Agreement) and the Other Conveyed Property (the "Receivables Related
Property") will remain in Borrowers' possession, but that FEFG or FEAC will
hold such Receivables Related Property either in their capacities as servicer
and subservicer respectively, for FESC II and as custodian for the Trustee, and
that neither the Receivables Related Property nor any proceeds thereof shall
constitute Collateral for any purpose under the Loan Agreement.
5.3 Effectiveness. The Consent provided herein to the 1997
Securitization shall be effective upon the execution and delivery to Borrowers
and the Agent by Borrowers, each Bank and the Agent of a counterpart of this
Amendment; provided, however, the lien release provisions of Section 5.1 hereof
shall be effective only upon receipt by the Agent of evidence satisfactory to
the Agent that the net cash proceeds from the sale by Borrowers to FESC II
(exclusive of amounts required to be contributed to the capitalization of
FESC), but in no event less than the Payoff Amount, has been received in
immediately available funds by the Agent to be applied to repay outstanding
amounts under the Loan Agreement.
SECTION 6 REPURCHASE
If at any time either Borrower repurchases any Receivables in whole or
in part as required or optionally permitted under the 1997 Sale and Servicing
Agreement, FEFG shall notify Agent within five (5) days after such repurchase,
and Borrowers agree that they shall execute and deliver to Agent any financing
statements, documents or agreements deemed necessary by Agent to perfect
Agent's lien on and security interest in such repurchased Receivables.
SECTION 7 GENERAL PROVISIONS
7.1 Except as amended by this Amendment, the terms and provisions of
the Loan Agreement shall remain in full force and effect and are hereby
affirmed, confirmed and ratified in all respects. Borrowers ratify, confirm
and affirm without condition, all liens and security interests granted to the
Banks and the Agent pursuant to the Loan Agreement and the Loan Documents, and
such liens and security interests shall continue to secure the Obligations,
including but not limited to, all loans made by the Bank to the Borrowers under
the Loan Agreement as amended by this Amendment.
7.2 This Amendment shall be construed in accordance with and governed
by the laws of the State of Illinois, and the obligations of Borrowers under
this Amendment are and shall arise absolutely and unconditionally upon the
execution and delivery of this Amendment.
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7.3 This Amendment may be executed in any number of counterparts.
7.4 Borrowers hereby agree to pay all out-of-pocket expenses incurred
by Banks in connection with the preparation, negotiation and consummation of
this Amendment, and all other documents related thereto, including without
limitation, the reasonable fees and expense of Agent's counsel, and any filing
fees required in connection with the filing of any documents necessary to
consummate the provisions of this Amendment. Notwithstanding anything
contained herein to the contrary, the only legal fees for which Borrowers shall
be responsible are the fees and expenses of Agent's counsel.
7.5 On or after the effective date hereof, each reference in the Loan
Agreement or any of the Loan Documents to this "Agreement" or words of like
import, shall unless the context otherwise requires, be deemed to refer to the
Loan Agreement as amended hereby.
7.6 Any provision of this Amendment which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or thereof, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
7.7 The consents granted herein are effective only in the instances and
for the purposes for which they are given and shall not constitute a course of
conduct or dealing.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the date and year
first above written.
BORROWERS: FIRST ENTERPRISE FINANCIAL
GROUP, INC.
By: /s/ Jan W. Erfert
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Title: Vice President
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FIRST ENTERPRISE ACCEPTANCE
COMPANY
By: /s/ Michael P. Harrington
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Title: Chairman
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BANKS: LASALLE NATIONAL BANK,
individually and as Agent
By: /s/ Terry M. Keating
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Title: First Vice President
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FIRST MIDWEST BANK, N.A.
By: /s/ Edward Melton
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Title: Senior Vice President
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BANK ONE, ILLINOIS, NA
By: /s/ Michael Moran
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Title: Vice President
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THE FIRST NATIONAL BANK OF
CHICAGO
By: /s/ Craig Goldsmith
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Title: Assistant Vice President
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HARRIS BANK PALATINE, N.A.
By: /s/ Paul E. Bailey
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Title: Vice President
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FLEET BANK, NATIONAL
ASSOCIATION
By: /s/ Christine Montagna
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Title: Vice President
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CORESTATES BANK, N.A.
By: /s/ Rita H. Stempin
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Title: Vice President
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Exhibit A to Second Amendment
Schedule 6.9
Subsidiaries
First Enterprise Securitization Corp., a Delaware corporation
First Enterprise Securitization Co. II, a Delaware corporation
First Enterprise Acceptance Company, an Illinois corporation
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EXHIBIT 4.2
PAYOFF LETTER
THIS PAYOFF LETTER (this "Letter") dated as of March 7, 1997, is made
by and between FIRST ENTERPRISE SECURITIZATION CO. II, a Delaware corporation
("Purchaser"), FIRST ENTERPRISE FINANCIAL GROUP, INC., an Illinois corporation
and FIRST ENTERPRISE ACCEPTANCE COMPANY, an Illinois corporation (collectively,
"Sellers") and LASALLE NATIONAL BANK, as agent on behalf of itself and certain
other lenders ("Lender").
BACKGROUND:
A. Pursuant to the terms of the Sale and Servicing Agreement dated as
of March 1, 1997 among Sellers, Purchaser and Lender, as Backup Servicer (the
"Servicing Agreement"), (i) Purchaser is purchasing from Sellers certain retail
sale contracts and related payments, collateral and rights identified in the
Servicing Agreement (the "Receivables") from Sellers and (ii) to finance the
purchase of the Receivables, Purchaser is issuing a series of notes which will
be secured by a pledge of the Receivables to LaSalle National Bank, as trustee
("Trustee") for the benefit of the note holders (collectively, the foregoing
transactions are referred to herein as the "Securitization Transaction").
B. Lender has, from time to time, made revolving loans and advances to
Sellers and will in the future make revolving loans and advances to Sellers
pursuant to the terms of a certain Fourth Amended and Restated Revolving Credit
Agreement dated as of October 15, 1996, as heretofore and hereafter amended
(together with all of the instruments, documents and agreements executed in
connection therewith, the "Credit Agreement"), which loans and advances are
secured by a lien on the "Collateral" (as such term is described in the Credit
Agreement).
C. All terms used herein without definition shall have the same
meanings assigned to such terms in the Servicing Agreement or the Credit
Agreement, as applicable.
NOW, THEREFORE, for good and sufficient consideration, the receipt of
which is hereby acknowledged, it is hereby agreed as follows:
1. Lender acknowledges and agrees that it has consented to the
Securitization Transaction and that all conditions precedent to the
effectiveness of such consent have been satisfied.
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2. Upon the receipt by Lender of not less than $__________ in proceeds,
Lender hereby releases its lien on the Receivables and Lender agrees to
promptly deliver to Purchaser all UCC-3's required to release all security
interests in, liens on and encumbrances of Lender in the purchased Receivables
listed on the Schedule of Receivables to the Servicing Agreement.
3. This Letter shall be governed by and construed in accordance with
the laws of the State of Illinois.
IN WITNESS WHEREOF, the parties have executed this Letter as of the day
and year first above written.
LASALLE NATIONAL BANK
By: _______________________________
Title: _______________________________
FIRST ENTERPRISE FINANCIAL
GROUP, INC.
By: _______________________________
Title: _______________________________
FIRST ENTERPRISE
SECURITIZATION CO. II
By: _______________________________
Title: _______________________________
FIRST ENTERPRISE ACCEPTANCE
COMPANY
By: _______________________________
Title: _______________________________