Amendment No. 5 to Amended and Restated Motor Vehicle Installment Contract Loan and Security Agreement between The Finance Company and General Electric Capital Corporation

Summary

This amendment updates the loan and security agreement between The Finance Company and General Electric Capital Corporation. It changes payment deadlines, requires a back-up servicing agreement, adjusts fee schedules, and modifies repayment terms for subordinated debt. The amendment also clarifies the agreement’s termination date and confirms that all other terms remain in effect. The agreement is governed by Illinois law and can be executed in counterparts or by fax. The Finance Company remains responsible for all obligations under the original agreement.

EX-10.41 9 dex1041.txt EXHIBIT 10.41 Exhibit 10.41 Amendment No. 5 to Amended and Restated Motor Vehicle Installment Contract Loan and Security Agreement This AMENDMENT NO. 5 (this "Amendment") is made by and between THE FINANCE COMPANY, a Virginia corporation ("Borrower") and GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation ("Lender"). RECITALS A. Borrower and Lender are parties to an Amended and Restated Motor Vehicle Installment Contract Loan and Security Agreement dated March 31, 2001, as amended by Amendment No. 1 dated June 27, 2001, as amended by Amendment No. 2 dated November 29, 2001, as amended by Amendment No. 3 dated March 12, 2002, as amended by Amendment No. 4 dated August 30, 2002 (as so amended, the "Agreement"). B. Borrower and Lender desire to amend certain provisions of the Agreement pursuant to the terms set forth in this Amendment. In consideration of the premises, the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each of the parties hereto, Borrower and Lender agree as follows: 1. Defined Terms. Unless otherwise specified herein, all capitalized terms used in this Amendment shall have the same meaning given to such term(s) in the Agreement. 2. Amendments to Agreement. Subject to the conditions of subparagraph (a) hereunder, the Agreement is hereby amended as follows: (a) Borrower shall, by October 15, 2002: (i) Make payment to Lender of not less than Twenty Million Dollars ($20,000,000) in accordance with Section 4.0 of the Agreement; (ii) Provide a back-up servicing agreement, on terms and conditions acceptable to Lender, with Wells Fargo Bank Minnesota, National Association, or another entity acceptable to Lender, for the servicing of the Pledged Contracts in the event of a default by Borrower under the Agreement; (iii) Begin paying the monthly fees charged by Wells Fargo Bank Minnesota, National Association, as custodian, to hold physical possession of the Collateral. (b) The first sentence in Section 2.3. "Loan Term: Right to Terminate." shall be deleted in its entirety and replaced with the following: "Unless sooner terminated as hereinafter provided, this Agreement shall terminate, and the Loan becomes payable in full, on the earlier of (i) April 1, 2003 or (ii) the termination of, or the failure of Westdeutsche Landesbank Girozentrale ("West LB") to make advances for a period of forty-five (45) consecutive days under, the existing Forty Million Dollar ($40,000,000) loan agreement, between Borrower and West LB, dated as of March 15, 2002, as amended." (c) The first paragraph in Section 2.5. "Fees." shall be deleted in its entirety and replaced with the following: "(A) Borrower shall pay Lender a line fee quarterly as follows: One Hundred Twenty Five Thousand Dollars ($125,000) due and payable on March 31, 2002, Two Hundred Thousand Dollars ($200,000) due and payable on each June 30, 2002 and September 30, 2002, and Four Hundred Thousand Dollars ($400,000) due and payable on January 2, 2003. The payment of the line fee is nonrefundable." (d) The entire Section 14.9 "Restricted Repayment on Subordinated Indebtedness" shall be deleted in its entirety and replaced with the following: "Section 14.9 Restricted Repayment on Subordinated Indebtedness Borrower and its Affiliates shall not in the aggregate repay any principal on its subordinated indebtedness; provided, however, Borrower may repay the final Two Million Dollars ($2,000,000) installment due and payable to Cigna Lincoln National in June 2002, One Hundred Seventy Five Thousand Dollars ($175,000) due and payable to Invest TFC, LLC in two installment on March 31, 2002 and June 30, 2002, Three Hundred Thousand Dollars ($300,000) due and payable on two other promissory notes on July 27, 2002, Three Hundred Thousand Dollars ($300,000) due and payable on two other promissory notes on September 3, 2002, and Five Hundred Thousand Dollars ($500,000) due and payable to N M. Rothschild & Sons Limited in 2003." 3. Incorporation of Amendment. The parties acknowledge and agree that this Amendment is incorporated into and made a part of the Agreement, the terms and provisions of which, unless expressly modified herein, or unless no longer applicable by their terms, are hereby affirmed and ratified and remain in full force and effect. To the extent that any term or provision of this Amendment is or may be deemed expressly inconsistent with any term or provision of the Agreement, the terms and provisions of this Amendment shall control. Each reference to the Agreement shall be a reference to the Agreement as amended by this Amendment. Nothing contained herein is intended, nor shall be construed to be a notation or an accord and satisfaction of the outstanding Note or any of Borrower's obligations to Lender. 4. Borrower Remains Liable. Borrower hereby confirms that the Agreement and each document executed by Borrower in connection therewith continue unimpaired and in full force and effect and shall cover and secure all of Borrower's existing and future obligations to Lender. Nothing contained herein is intended, nor shall be construed, to be a notation or an accord and satisfaction of the outstanding liabilities or any of Borrower's other obligations to Lender. 5. Headings. The paragraph headings contained in this Amendment are for convenience of reference only and shall not be considered a part of this Amendment in any respect. 6. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of Illinois. Nothing herein shall preclude Lender from bringing suit or taking other legal action in any jurisdiction. 7. Execution in Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute one and the same instrument. 8. Faxed Documents. In order to expedite the acceptance and execution of this Amendment, each of the parties hereto agrees that a faxed copy of any original executed document shall have the same binding effect on the party so executing the faxed document as an original handwritten executed copy thereof. IN WITNESS WHEREOF, the undersigned have entered into this Amendment No. 5 as of October __, 2002 GENERAL ELECTRIC CAPITAL CORPORATION By: _________________________________ Title: ________________________________ THE FINANCE COMPANY By: _________________________________ Title: ________________________________