EXHIBIT 10.22
[EXECUTION]
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CREDIT AGREEMENT
between
XXXXXXX XXXXXX FINANCIAL SERVICES, INC.
and
BANK ONE, TEXAS, N.A.
December 3, 1996
$20,000,000
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TABLE OF CONTENTS
Page
ARTICLE I
GENERAL TERMS. . . . . . . . . . . . . . . . . 1
Section 1.1 CERTAIN DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2 OTHER DEFINITIONAL PROVISIONS . . . . . . . . . . . . . . . . . . 11
Section 1.3 EXHIBITS AND SCHEDULES. . . . . . . . . . . . . . . . . . . . . . 11
Section 1.4 CALCULATIONS AND DETERMINATIONS . . . . . . . . . . . . . . . . . 11
ARTICLE II
AMOUNT AND TERMS OF ADVANCES. . . . . . . . . . . . . 11
Section 2.1 COMMITMENT AND ADVANCES . . . . . . . . . . . . . . . . . . . . . 12
Section 2.2 PROMISSORY NOTE; OPTIONAL PREPAYMENTS . . . . . . . . . . . . . . 12
Section 2.3 NOTICE AND MANNER OF OBTAINING BORROWINGS . . . . . . . . . . . . 12
Section 2.4 FACILITY FEE. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.5 WAREHOUSE CUSTODIAN FEE . . . . . . . . . . . . . . . . . . . . . 12
Section 2.6 MANDATORY REPAYMENTS. . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.7 BUSINESS DAYS . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.8 PAYMENT PROCEDURE . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.9 RATE ELECTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.10 INCREASED COST OF FIXED RATE PORTIONS . . . . . . . . . . . . . . 14
Section 2.11 AVAILABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.12 FUNDING LOSSES . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.13 REIMBURSABLE TAXES . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE III
COLLATERAL . . . . . . . . . . . . . . . . . 16
Section 3.1 COLLATERAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.2 BORROWING REQUEST; DELIVERY OF CONSUMER NOTES TO CUSTODIAN. . . . 16
Section 3.3 POWER OF ATTORNEY . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 3.4 REDEMPTION OF COLLATERAL. . . . . . . . . . . . . . . . . . . . . 17
Section 3.5 CORRECTION OF CONSUMER NOTES. . . . . . . . . . . . . . . . . . . 18
Section 3.6 RELEASE OF COLLATERAL . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE IV
CONDITIONS PRECEDENT. . . . . . . . . . . . . . . 19
Section 4.1 INITIAL BORROWING . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 4.2 ALL BORROWINGS. . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE V
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . 21
Section 5.1 ORGANIZATION AND GOOD STANDING. . . . . . . . . . . . . . . . . . 22
Section 5.2 AUTHORIZATION AND POWER . . . . . . . . . . . . . . . . . . . . . 22
Section 5.3 NO CONFLICTS OR CONSENTS. . . . . . . . . . . . . . . . . . . . . 22
Section 5.4 ENFORCEABLE OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . 22
Section 5.5 PRIORITY OF LIENS . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 5.6 NO LIENS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 5.7 FINANCIAL CONDITION OF BORROWER . . . . . . . . . . . . . . . . . 23
Section 5.8 FULL DISCLOSURE . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 5.9 NO DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 5.10 NO LITIGATION. . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 5.11 TAXES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 5.12 PRINCIPAL OFFICE, ETC. . . . . . . . . . . . . . . . . . . . . . 23
Section 5.13 COMPLIANCE WITH ERISA. . . . . . . . . . . . . . . . . . . . . . 23
Section 5.14 SUBSIDIARIES . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 5.15 INDEBTEDNESS . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 5.16 PERMITS, PATENTS, TRADEMARKS, ETC. . . . . . . . . . . . . . . . 24
Section 5.17 STATUS UNDER CERTAIN FEDERAL STATUTES. . . . . . . . . . . . . . 24
Section 5.18 SECURITIES ACT . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 5.19 POLLUTION CONTROL. . . . . . . . . . . . . . . . . . . . . . . . 24
Section 5.20 NO APPROVALS REQUIRED. . . . . . . . . . . . . . . . . . . . . . 24
Section 5.21 SURVIVAL OF REPRESENTATIONS. . . . . . . . . . . . . . . . . . . 25
Section 5.22 INDIVIDUAL CONSUMER NOTES. . . . . . . . . . . . . . . . . . . . 25
ARTICLE VI
AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . 26
Section 6.1 TAXES AND OTHER LIENS . . . . . . . . . . . . . . . . . . . . . . 27
Section 6.2 MAINTENANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 6.3 FURTHER ASSURANCES. . . . . . . . . . . . . . . . . . . . . . . . 27
Section 6.4 REIMBURSEMENT OF EXPENSES . . . . . . . . . . . . . . . . . . . . 27
Section 6.5 INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 6.6 ACCOUNTS AND RECORDS. . . . . . . . . . . . . . . . . . . . . . . 28
Section 6.7 RIGHT OF INSPECTION . . . . . . . . . . . . . . . . . . . . . . . 28
Section 6.8 NOTICE OF CERTAIN EVENTS. . . . . . . . . . . . . . . . . . . . . 28
Section 6.9 USE OF PROCEEDS; MARGIN STOCK . . . . . . . . . . . . . . . . . . 28
Section 6.10 NOTICE OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . 29
Section 6.11 COMPLIANCE WITH LOAN DOCUMENTS . . . . . . . . . . . . . . . . . 29
Section 6.12 OPERATIONS AND PROPERTIES. . . . . . . . . . . . . . . . . . . . 29
Section 6.13 FINANCIAL STATEMENTS AND REPORTS . . . . . . . . . . . . . . . . 29
ARTICLE VII
NEGATIVE COVENANTS . . . . . . . . . . . . . . . 31
Section 7.1 NO MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.2 LIMITATION ON INDEBTEDNESS. . . . . . . . . . . . . . . . . . . . 31
Section 7.3 BUSINESS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.4 LIQUIDATIONS AND DISPOSITIONS OF SUBSTANTIAL ASSETS . . . . . . . 31
Section 7.5 LOANS, ADVANCES, AND INVESTMENTS. . . . . . . . . . . . . . . . . 32
Section 7.6 ACTIONS WITH RESPECT TO COLLATERAL. . . . . . . . . . . . . . . . 32
Section 7.7 TANGIBLE NET WORTH. . . . . . . . . . . . . . . . . . . . . . . . 32
Section 7.8 MINIMUM LIQUIDITY . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 7.9 TOTAL LIABILITIES TO XXXXXXXX'S CONSOLIDATED TANGIBLE NET WORTH . 33
Section 7.10 RESTRICTIONS ON DIVIDENDS AND PAYMENTS OF SUBORDINATED DEBT. . . 33
Section 7.11 TRANSACTIONS WITH AFFILIATES . . . . . . . . . . . . . . . . . . 33
Section 7.12 LIENS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 7.13 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 7.14 CHANGE OF PRINCIPAL OFFICE . . . . . . . . . . . . . . . . . . . 33
Section 7.15 FISCAL YEAR, METHOD OF ACCOUNTING. . . . . . . . . . . . . . . . 33
ARTICLE VIII
EVENTS OF DEFAULT. . . . . . . . . . . . . . . . 34
Section 8.1 NATURE OF EVENT . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 8.2 DEFAULT REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE IX
CONCERNING BANK ONE . . . . . . . . . . . . . . . 36
Section 9.1 INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 9.2 LIMITATION OF LIABILITY . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE X
MISCELLANEOUS. . . . . . . . . . . . . . . . . 38
Section 10.1 NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 10.2 AMENDMENTS, ETC. . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 10.3 INVALIDITY . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 10.4 SURVIVAL OF AGREEMENTS . . . . . . . . . . . . . . . . . . . . . 39
Section 10.5 RENEWAL, EXTENSION OR REARRANGEMENT. . . . . . . . . . . . . . . 39
Section 10.6 WAIVERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 10.7 CUMULATIVE RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . 39
Section 10.8 CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 10.9 LIMITATION ON INTEREST . . . . . . . . . . . . . . . . . . . . . 39
Section 10.10 BANK ACCOUNTS; OFFSET . . . . . . . . . . . . . . . . . . . . . 40
Section 10.11 ASSIGNMENTS AND PARTICIPATIONS. . . . . . . . . . . . . . . . . 40
Section 10.12 EXHIBITS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 10.13 TITLES OF ARTICLES, SECTIONS AND SUBSECTIONS. . . . . . . . . . 41
Section 10.14 COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 10.15 ENTIRE AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . 41
Section 10.16 TERMINATION; LIMITED SURVIVAL . . . . . . . . . . . . . . . . . 41
Section 10.17 JOINT AND SEVERAL LIABILITY . . . . . . . . . . . . . . . . . . 42
EXHIBITS
Exhibit A - Form of Promissory Note
Exhibit B - Form of Borrowing Request
Exhibit C-1 - Form of Officer's Certificate of Borrower
Exhibit C-1 - Form of Officer's Certificate of Guarantor
Exhibit D - Form of Collateral Release Request
Exhibit E - Form of Bailee Letter
Exhibit F - Form of Borrowing Base Report
Exhibit G - Form of Trust Receipt
Exhibit H - Form of Rate Election
Exhibit I - Underwriting Guidelines
Exhibit J - Form of Guaranty
Exhibit K - Form of Security Agreement
Exhibit L - Warehouse Custodian Fees
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is made and entered into as of December 3, 1996,
between XXXXXXX XXXXXX FINANCIAL SERVICES, INC., a Texas corporation
("BORROWER"), and BANK ONE, TEXAS, N.A. ("BANK ONE").
The parties hereto hereby agree as follows:
ARTICLE I
GENERAL TERMS
Section 1.1 CERTAIN DEFINITIONS. As used in this Agreement, the following
terms have the following meanings:
"ADJUSTED BASE RATE" means the per annum rate of interest one-half of one
percent (0.5%) below the Base Rate. If the Base Rate changes after the date
hereof, the Adjusted Base Rate shall automatically increase or decrease, as the
case may be, without notice to Borrower.
"ADVANCE" shall mean a disbursement by Bank One of any sum or sums lent by
Bank One to Borrower hereunder.
"AFFILIATE" means, as to any Person, each other Person that directly or
indirectly (through one or more intermediaries or otherwise) controls, is
controlled by, or is under common control with, such Person.
"AGREEMENT" shall mean this Credit Agreement, as the same may from time to
time be amended, modified, supplemented or restated.
"APPROVED INVESTOR" means the Trustee under the Asset Securitization
Facility and any other investor approved in writing by Bank One as an Approved
Investor.
"ASSET SECURITIZATION FACILITY" means a facility approved by Bank One which
provides for the sale by Borrower of the Consumer Notes to a trustee, acting for
certain investors.
"BAILEE LETTER" means a bailee letter from Bank One to an Approved Investor
in the form of "Exhibit "E".
"BANK ONE" shall have the meaning assigned to such term in the preamble
hereof.
"BASE RATE" shall mean the base commercial rate of interest as announced
from time to time by Bank One (which may not be the lowest, best, or most
favorable rate of interest which Bank One may charge on loans to its customers).
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"BASE RATE PORTION" means that portion of the unpaid principal balance of
the Loan which is not made up of Fixed Rate Portions.
"BORROWER" shall have the meaning assigned to such term in the preamble
hereof.
"BORROWER'S CONSOLIDATED DEBT" means all Consolidated liabilities and
similar balance sheet items of Borrower.
"BORROWER'S CONSOLIDATED TANGIBLE NET WORTH" means the remainder of all
Consolidated assets of Borrower, other than intangible assets (including without
limitation as intangible assets such assets as patents, copyrights, licenses,
franchises, goodwill, trade names, trade secrets and leases other than oil, gas
or mineral leases or leases required to be capitalized under GAAP and any
residual interests of Borrower under the Asset Securitization Facility, MINUS
Borrower's Consolidated Debt (other than Subordinated Debt).
"BORROWING" shall mean a borrowing consisting of an Advance by Bank One
pursuant to a Borrowing Request.
"BORROWING BASE" means at any date, the Collateral Value calculated as of
such date.
"BORROWING BASE REPORT" means a report prepared by Borrower in the form of
Exhibit F.
"BORROWING DATE" with respect to a particular Borrowing shall mean the
Business Day identified by Borrower as the day on which it requests that such
Borrowing be made, such day shall be identified in the related Borrowing
Request.
"BORROWING REQUEST" shall mean a request, in the form of EXHIBIT "B", for a
Borrowing pursuant to ARTICLE II.
"BUSINESS DAY" shall mean any day other than Saturdays, Sundays and other
days on which commercial banks are authorized or required by law to close in the
State of Texas. Any Business Day in any way relating to Fixed Rate Portions
(such as the day on which an Interest Period begins or ends) must also be a day
on which transactions in United States' dollars are carried out in the
eurocurrency market.
"CAPITAL LEASE" shall mean any lease of Property if the then present value
of the minimum rental commitment thereunder should, in accordance with GAAP, be
capitalized on a balance sheet of the lessee.
"CASH EQUIVALENTS" shall mean (i) securities issued or directly and fully
guaranteed or insured by the United States Government or any agency or
instrumentality thereof which mature within 90 days from the date of
acquisition, and (ii) time deposits and certificates of deposit, which mature
within 90 days from the date of acquisition, of Bank One or any other
domestic commercial bank having capital and surplus in excess of $200,000,000,
which has, or the holding company of which has, a commercial paper
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rating of at least the second highest credit rating given by either Standard &
Poors Corporation or Xxxxx'x Investors Service, Inc.
"CHANGE OF CONTROL" means the acquisition by any Person, or group of
Persons acting together, a of a direct or indirect interest in more than
forty-nine percent (49%) of the voting power of the voting stock of Borrower,
by way of merger or consolidation or otherwise.
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
"COLLATERAL" shall have the meaning given it in the Security Agreement.
"COLLATERAL RELEASE REQUEST" shall mean a request, in the form of EXHIBIT
"D", that Bank One release its Lien in and upon certain Collateral pursuant to
SECTION 3.6.
"COLLATERAL VALUE" shall mean, with respect to each Eligible Consumer Note,
an amount equal to eighty-five percent (85%) of the lesser of (i) if Borrower
funded the loan made pursuant to the Consumer Note, the original principal
amount of such Consumer Note or (ii) if Borrower acquired such Consumer Note
after the initial funding, the purchase price for such Consumer Note (less
expenses) MINUS, in each case, the amount of principal paid under such Consumer
Note and delivered to Bank One for application to the payment of the Consumer
Note.
"COMMITMENT" shall mean the obligation of Bank One to make Advances to
Borrower pursuant to SECTION 2.1 hereof in an aggregate amount not to exceed at
any one time $20,000,000.
"CONSOLIDATED" refers to the consolidation of any Person, in accordance
with GAAP, with its properly consolidated subsidiaries. References herein to a
Person's Consolidated financial statements, financial position, financial
condition, liabilities, etc. refer to the consolidated financial statements,
financial position, financial condition, liabilities, etc. of such Person and
its properly consolidated subsidiaries.
"CONSUMER NOTE" shall mean the note, installment sales contract, or other
evidence of indebtedness evidencing the indebtedness of an Obligor under a home
improvement loan together with the rights and obligations of a holder thereof
and payments thereon and proceeds therefrom.
"DEBTOR LAWS" shall mean all applicable liquidation, conservatorship,
bankruptcy, moratorium, arrangement, receivership, insolvency, reorganization or
similar laws from time to time in effect affecting the rights of creditors
generally.
"DEFAULT" shall mean any of the events specified in SECTION 8.1 hereof,
whether or not any requirement for notice or lapse or time or any other
condition has been satisfied.
"DIVIDENDS", in respect of any corporation, shall mean:
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(i) Cash distributions or any other distributions on, or in respect
of, any class of equity security of such corporation, except for
distributions made solely in shares of securities of the same class;
and
(ii) Any and all funds, cash or other payments made in respect of the
redemption, repurchase or acquisition of such securities.
"ELIGIBLE CONSUMER NOTES" shall mean all Consumer Notes (i) which are made
payable to the order of Borrower or have been endorsed (without restriction or
limitation) payable to the order of Borrower,(ii) which are valid and
enforceable in accordance with their respective terms,(iii) in which Bank One
has been granted and continues to hold a perfected first-priority security
interest,(iv) which are in a form that has been prepared by Bankers Systems or
otherwise approved by Bank One,(v) which, are eligible for purchase under an
Asset Securitization Facility and conform in all respects with all the
requirements for purchase of such Consumer Notes under such Asset Securitization
Facility and (vi) as to which the representations and warranties set forth in
Section 5.22 are true and correct without any limitation as to Borrower's
knowledge thereof; PROVIDED, HOWEVER, that any Consumer Note (vii) pledged by
Borrower under the Security Agreement for a period in excess of the Warehousing
Period or (viii) which has been out of Bank One's possession under a Bailee
Letter for twenty-one (21) or more days, or (ix) which has been out of Bank
One's possession under a Trust Receipt for fifteen (15) or more days, or (x)
which is in default more than 60 days; or (xi) which was not originated in
accordance with the Underwriting Guidelines or (xii) which was originated
fraudulently or (xiii) the Obligor of which has instituted a proceeding in
bankruptcy or reorganization under Debtor Laws, or (xiv) is no longer eligible
for purchase under the Asset Securitization Facility or ceases to conform in all
respects with all requirements for purchase thereunder, SHALL NOT BE AN ELIGIBLE
CONSUMER NOTE.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, together with the regulations from time to time
promulgated with respect thereto.
"ERISA AFFILIATE" shall mean all members of the group of corporations and
trades or businesses (whether or not incorporated) which, together with
Borrower, are treated as a single employer under Section 414 of the Code.
"ERISA PLAN" shall mean any pension benefit plan subject to Title IV of
ERISA or Section 412 of the Code maintained or contributed to by Borrower or any
ERISA Affiliate with respect to which Borrower has a fixed or contingent
liability.
"EVENT OF DEFAULT" shall mean any of the events specified in SECTION 8.1
hereof, provided that any requirement in connection with such event for the
giving of notice or the lapse of time, or the happening of any further
condition, event or act has been satisfied.
"FACILITY FEE" shall mean the fee described in SECTION 2.4 hereof.
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"FISCAL QUARTER" means the period of three months ending January 31, April
30, July 31 and October 31 of each year.
"FISCAL YEAR" means the one-year period ending October 31 of each year.
"FIXED RATE" means, with respect to each particular Fixed Rate Portion and
the associated LIBOR Rate and Reserve Percentage, the rate per annum calculated
by Bank One (rounded upwards, if necessary, to the next higher 0.01%) determined
on a daily basis pursuant to the following formula:
Fixed Rate =
LIBOR RATE + A
-----------------------------
(100.0% - Reserve Percentage)
where A means one and one-quarter percent (1.25%) per annum. If the
Reserve Percentage changes during the Interest Period for a Fixed Rate
Portion, Bank One may, at its option, either change the Fixed Rate for such
Fixed Rate Portion or leave it unchanged for the duration of such Interest
Period. The Fixed Rate shall in no event, however, exceed the Maximum
Rate.
"FIXED RATE PORTION" means that portion of the unpaid principal balance of
the Loan which Borrower designates as such in a Rate Election.
"FUNDING ACCOUNT" shall mean the non-interest bearing demand checking
account established by Borrower with Bank One to be used for the deposit of
proceeds of Advances and the funding of Consumer Notes by Xxxxxxxx.
"GAAP" means those generally accepted accounting principles and practices
which are recognized as such by the Financial Accounting Standards Board (or any
generally recognized successor) and which, in the case of Borrower and Guarantor
and its consolidated subsidiaries, are applied for all periods after the date
hereof in a manner consistent with the manner in which such principles and
practices were applied to the financing statements described in Section 5.7. If
any change in any accounting principle or practice is required by the Financial
Accounting Standards Board (or any such successor) in order for such principle
or practice to continue as a generally accepted accounting principle or
practice, all reports and financial statements required hereunder with respect
to Borrower or Guarantor, or with respect to Borrower or Guarantor and their
Consolidated subsidiaries may be prepared in accordance with such change, but
all calculations and determinations to be made hereunder may be made in
accordance with such change only after notice of such change is given to Bank
One and Bank One agrees to such change insofar as it affects the accounting of
Borrower, Guarantor or of Guarantor and its Consolidated subsidiaries.
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"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any agency,
department, state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"GOVERNMENTAL REQUIREMENT" shall mean any law, statute, code, ordinance,
order, rule, regulation, judgment, decree, injunction, franchise, permit,
certificate, license, authorization or other direction or requirement
(including, without limitation, any of the foregoing which relate to
environmental standards or controls, energy regulations and occupational, safety
and health standards or controls) of any arbitrator, court or other Governmental
Authority, which exercises jurisdiction over any Related Person or any of its
Property.
"GUARANTOR" means Xxxxxxx Xxxxxx Building Products, Inc., a Georgia
corporation.
"GUARANTY" shall mean the Guaranty dated as of even date herewith, executed
by Guarantor in the form attached hereto as EXHIBIT "J", as the same may from
time to time be further supplemented, amended or restated.
"GUARANTY OBLIGATION" of any Person shall mean any contract, agreement or
understanding of such Person pursuant to which such Person guarantees, or in
effect guarantees, any Indebtedness, lease, dividends or other obligations (the
"PRIMARY OBLIGATIONS") or any other Person (the "PRIMARY OBLIGOR") in any
manner, whether directly or indirectly, contingently or absolutely, in whole or
in part, including without limitation agreements:
(i) to purchase such Primary Obligation or any property constituting
direct or indirect security therefor;
(ii) to advance or supply funds (A) for the purchase or payment of
any such Primary Obligation, or (B) to maintain working capital or other
balance sheet conditions of the Primary Obligor or otherwise to maintain
the net worth or solvency of the Primary Obligor;
(iii) to purchase property, securities or services primarily for
the purpose of assuring the owner of any such Primary Obligation of the
ability of the Primary Obligor to make payment of such Primary Obligation;
or
(iv) otherwise to assure or hold harmless the owner of any such
Primary Obligation against loss in respect thereof;
PROVIDED, THAT "GUARANTY OBLIGATION" shall not include endorsements that
are made in the ordinary course of business of negotiable instruments or
documents for deposit or collection. The amount of any Guaranty Obligation
shall be deemed to be the maximum amount for which the guarantor may be
liable pursuant to the agreement that governs such Guaranty Obligation,
unless such maximum amount is not stated or determinable, in which case the
amount of such obligation shall be the maximum reasonably anticipated
liability thereon, as determined by such guarantor in good faith.
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"INDEBTEDNESS" of any Person at a particular date shall mean the sum
(without duplication) at such date of (i) all indebtedness of such Person for
borrowed money or for the deferred purchase price of property or services or
which is evidenced by a note, bond, debenture, or similar instrument,(ii) all
obligations of such Person under any Capital Lease,(iii) all obligations of such
Person in respect of letters of credit, acceptances, or similar obligations
issued or created for the account of such Person,(iv) all Guaranty Obligations
of such Person, and (v) all liabilities secured by any Lien on any property
owned by such Person, whether or not such Person has assumed or otherwise become
liable for the payment thereof, and (vi) any liability of such Person or any
Affiliate thereof in respect of unfunded vested benefits under an ERISA Plan.
"INTEREST PERIOD means, with respect to each particular Fixed Rate Portion,
a period of 30, 60 or 90 days, as specified in the Rate Election applicable
thereto, beginning on and including the date specified in such Rate Election
(which must be a Business Day), and ending on but not including the same day of
the month as the day on which it began (e.g., a period beginning on the third
day of one month shall end on but not include the third day of another month),
provided that each Interest Period which would otherwise end on a day which is
not a Business Day shall end on the next succeeding Business Day (unless such
next succeeding Business Day is the first Business Day of a calendar month, in
which case such Interest Period shall end on the immediately preceding Business
Day). No Interest Period may be elected which would extend past the Termination
Date.
"LATE PAYMENT RATE": at the time in question, four percent (4.0%) per
annum plus the Base Rate then in effect; provided that, with respect to any
Fixed Rate Portion of a Loan with an Interest Period extending beyond the date
such Fixed Rate Portion becomes due and payable, "Late Payment Rate" shall mean
four percent (4.0%) per annum plus the related Fixed Rate.
"LIBOR RATE" shall mean, with respect to each particular Fixed Rate Portion
and with respect to the related Interest Period, the rate of interest per annum
at which deposits in the lawful currency of the United States of America are
offered by the major London clearing banks, as reported by Xxxxxx-Xxxxxx news
service (or if Knight Ridder news service ceases to report such rate, another
similar news reporting service selected by Bank One in its sole discretion), in
the London interbank eurodollar market for a period of time equal or comparable
to the related Interest Period and in an amount equal to or comparable to the
principal amount of the Fixed Rate Portion to which such Interest Period
relates.
"LIEN" shall mean any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (whether statutory or otherwise), or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, any conditional sale or other
title retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of any financing
statement under the uniform commercial code or comparable law of any
jurisdiction in respect of any of the foregoing).
"LOAN" shall mean at any time the aggregate principal amount of all
Advances made and outstanding hereunder.
7
"LOAN DOCUMENT" shall mean any, and "LOAN DOCUMENTS" shall mean all, of
this Agreement, the Note, the Security Instruments, the Guaranty and any and all
other agreements or instruments now or hereafter executed and delivered by
Borrower or any other Person in connection with, or as security for the payment
or performance of any or all of the Obligations, as any of such may be renewed,
amended or supplemented from time to time.
"MATERIAL ADVERSE EFFECT" shall mean any material adverse effect on (i) the
validity or enforceability of this Agreement, the Note or any other Loan
Document,(ii) the business, operations, total Property or financial condition of
any Related Person,(iii) the collateral under any Security Instrument; or (iv)
the ability of Borrower to fulfill its obligations under this Agreement, the
Note, or any other Loan Document to which it is a party.
"MAXIMUM RATE" has the meaning given it in the Note.
"NET INCOME" of any Person shall mean, for the period ending on a
particular date, the net income (after taxes) of such Person which would appear
on statements of income and cash flows of such Person for such period prepared
in accordance with GAAP.
"NOTE" shall mean the promissory note delivered by Borrower to Bank One
pursuant to SECTION 2.2 in the form attached hereto as EXHIBIT "A", and all
renewals, modifications and extensions thereof.
"OBLIGATIONS" shall mean all present and future Indebtedness, obligations,
and liabilities of Borrower to Bank One, and all renewals and extensions
thereof, or any part thereof, arising pursuant to this Agreement or any other
Loan Document, and all interest accrued thereon, and reasonable attorneys' fees
and other costs incurred in the drafting, negotiation, enforcement or collection
thereof, regardless of whether such indebtedness, obligations, and liabilities
are direct, indirect, fixed contingent, joint, several or joint and several.
"OBLIGOR" shall mean the obligor on a Consumer Note.
"PBGC" means the Pension Benefit Guaranty Corporation or any Governmental
Authority succeeding to any of its functions.
"PERSON" shall mean any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization,
Governmental Authority, or any other form of entity.
"PROPERTY" shall mean any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"RATE ELECTION has the meaning given it in Section 2.9.
"REGULATION D" means Regulation D of the Board of Governors of the Federal
Reserve System as in effect from time to time.
8
"REGULATION U" shall mean Regulation U issued by the Board of Governors of
the Federal Reserve System as in effect from time to time.
"REGULATION X" shall mean Regulation X issued by the Board of Governors of
the Federal Reserve System as in effect from time to time.
"RELATED PERSONS" shall mean Borrower and any Subsidiary of Borrower.
"REPORTABLE EVENT" shall mean (1) a reportable event described in Sections
4043(b)(5) or (6) of ERISA or the regulations promulgated thereunder, or (2) any
other reportable event described in Section 4043(b) of ERISA or the regulations
promulgated thereunder other than a reportable event not subject to the
provision for 30-day notice to the PBGC pursuant to a waiver by the PBGC under
Section 4043(a) of ERISA.
"REQUIREMENT OF LAW" as to any Person shall mean the charter and by-laws or
other organizational or governing documents of such Person, and any law,
statute, code, ordinance, order, rule, regulation, judgment, decree, injunction,
franchise, permit, certificate, license, authorization or other determination,
direction or requirement (including, without limitation, any of the foregoing
which relate to environmental standards or controls, energy regulations and
occupational, safety and health standards or controls) of any arbitrator, court
or other Governmental Authority, in each case applicable to or binding upon such
Person or any of its Property or to which such Person or any of its Property is
subject.
"RESERVE PERCENTAGE" means, on any day with respect to each particular
Fixed Rate Portion, the maximum reserve requirement, as determined by Bank One
(including without limitation any basic, supplemental, marginal, emergency or
similar reserves), expressed as a percentage and rounded to the next higher
0.01%, which would then apply to Bank One under Regulation D with respect to
"Eurocurrency liabilities" (as such term is defined in Regulation D) equal in
amount to Bank One's Fixed Rate Portion were Bank One to have such "Eurocurrency
liabilities". If such reserve requirement shall change after the date hereof,
Borrower shall be promptly notified thereof and the Reserve Percentage shall be
automatically increased or decreased, as the case may be, from time to time as
of the effective time of each such change in such reserve requirement.
"SECURITY AGREEMENT" shall mean the Security Agreement dated as of even
date herewith, between Borrower and Bank One in the form attached hereto as
EXHIBIT "K", as the same may from time to time be further supplemented, amended
or restated.
"SECURITY INSTRUMENTS" shall mean (i) the Security Agreement, and (ii) such
other executed documents as are or may be necessary to grant to Bank One a
perfected first, prior and continuing security interest in and to all the
collateral described in ARTICLE III hereof, and any and all other agreements or
instruments now or hereafter executed and delivered by Borrower in connection
with, or as security for the payment or performance of, all or any of the
Obligations, including Borrower's obligations under the Note and this Agreement,
as such agreements may be amended, modified or supplemented from time to time.
9
"SETTLEMENT ACCOUNT" shall mean the non-interest bearing demand checking
account established by Borrower with Bank One to be used for the proceeds
from the sale of the Consumer Notes and the payment of the Obligations.
"SUBMISSION LIST" shall mean a list in the form of Schedule I to the form
of the Borrowing Request.
"SUBORDINATED DEBT" shall mean unsecured Indebtedness of Borrower in an
original principal amount not to exceed $6,000,000 which is issued on terms
acceptable to Bank One and which is subordinated to Bank One on terms acceptable
to Bank One, in each case in Bank One's sole discretion.
"SUBSIDIARY" shall mean, with respect to any Person, any corporation,
association, partnership, joint venture, or other business or corporate entity,
enterprise or organization which is directly or indirectly (through one or more
intermediaries) controlled by or owned fifty percent or more by such Person.
"TERMINATION DATE" shall mean the earlier of (i) the 364th day after the
date of the Agreement, or (ii) the day on which the Note first becomes due and
payable in full.
"TERMINATION EVENT" shall mean (1) the occurrence with respect to any ERISA
Plan of a Reportable Event, (2) the withdrawal of the Borrower or any ERISA
Affiliate from a plan during a plan year in which it was a "substantial
employer", as defined in Section 4001(a)(2) of ERISA, (3) the distribution to
affected parties of a notice of intent to terminate any ERISA Plan or the
treatment of any ERISA Plan amendment as a termination under Section 4041 of
ERISA, (4) the institution of proceedings to terminate any ERISA Plan by the
PBGC under Section 4042 of ERISA, or (5) any other event or condition which
might constitute grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any ERISA Plan.
"TOTAL LIABILITIES" of any Person shall mean, as of any date, all amounts
which would be included as liabilities on a balance sheet of such Person as of
such date prepared in accordance with GAAP.
"TRUST RECEIPT" shall mean an agreement in the form of Exhibit G signed by
Xxxxxxxx and delivered to Bank One.
"UCC" shall mean the Uniform Commercial Code as adopted in the State of
Texas, TEX. BUS. & COM. CODE XXX. Section 1.101 ET SEQ. (Xxxxxx 1994), as the
same may hereafter be amended.
"UNDERWRITING GUIDELINES" means the underwriting guidelines established by
Xxxxxxxx (and approved by Bank One), a copy of which is attached as Exhibit I.
"WAREHOUSE CUSTODIAN FEE" shall mean the fee set out in SECTION 2.5 hereof.
10
"WAREHOUSING PERIOD" shall mean (i) until the earlier of the date of the
Asset Securitization Facility or the 270th day after the date hereof, 270 days;
and (ii) thereafter, 180 days.
Section 1.2 OTHER DEFINITIONAL PROVISIONS.
(a) Unless otherwise specified therein, all terms defined in this
Agreement shall have the above-defined meanings when used in this Agreement, the
Note or any other Loan Document, certificate, report or other document made or
delivered pursuant hereto.
(b) Each term defined in the singular form in SECTION 1.1 shall mean the
plural thereof when the plural form of such term is used in this Agreement, the
Note or any other Loan Document, certificate, report or other document made or
delivered pursuant hereto, and each term defined in the plural form in SECTION
1.1 shall mean the singular thereof when the singular form of such term is used
herein or therein.
(c) The words "hereof," "herein," "hereunder" and similar terms when used
in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and section, subsection, schedule and
exhibit references herein are references to sections, subsections, schedules and
exhibits to this Agreement unless otherwise specified.
(d) Unless the context otherwise requires or unless otherwise provided
herein the terms defined in this Agreement which refer to a particular
agreement, instrument or document also refer to and include all renewals,
extensions, modifications, amendments and restatements of such agreement,
instrument or document, provided that nothing contained in this section shall be
construed to authorize any such renewal, extension, modification, amendment or
restatement.
(e) As used herein, in the Note or in any other Loan Document,
certificate, report or other document made or delivered pursuant hereto,
accounting terms relating to any Person and not specifically defined in this
Agreement or therein shall have the respective meanings given to them under
GAAP.
Section 1.3 EXHIBITS AND SCHEDULES. All Exhibits and Schedules attached
to this Agreement are a part hereof for all purposes.
Section 1.4 CALCULATIONS AND DETERMINATIONS. All calculations under the
Loan Documents of interest and of fees shall be made on the basis of actual days
elapsed (including the first day but excluding the last) and a year of 360 days.
Unless otherwise expressly provided herein or unless Bank One otherwise consents
all financial statements and reports furnished to Bank One hereunder shall be
prepared and all financial computations and determinations pursuant hereto shall
be made in accordance with GAAP.
ARTICLE II
AMOUNT AND TERMS OF ADVANCES
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Section 2.1 COMMITMENT AND ADVANCES. Subject to the terms and conditions
contained in this Agreement, Bank One agrees to make Advances to Borrower on a
revolving credit basis from time to time on any Business Day from the date of
this Agreement through the Termination Date. Each Borrowing under this SECTION
2.1 shall be in an aggregate amount of not less than $100,000. The aggregate
principal amount of all Advances at any time outstanding shall not exceed the
lesser of (i) the aggregate Collateral Value of all Consumer Notes, or (ii)
$20,000,000. Prior to the Termination Date, Borrower may, at its option, from
time to time, request Advances, prepay the Loan in whole or in part, and
reborrow amounts so paid, all in accordance with the terms and conditions
hereof.
Section 2.2 PROMISSORY NOTE; OPTIONAL PREPAYMENTS. The Advances made by
Bank One pursuant to this ARTICLE II shall be evidenced by the Note. The Note
shall be payable and bear interest as set forth therein. Borrower may from time
to time, without premium or penalty, prepay the Note, in whole or in part.
Section 2.3 NOTICE AND MANNER OF OBTAINING BORROWINGS. Borrower shall
give Bank One a notice of each request for a Borrowing pursuant to a Borrowing
Request in accordance with the provisions of SECTION 4.2 hereof. After Bank
One's receipt of such request and upon fulfillment of the applicable conditions
set forth in ARTICLE IV, Bank One will make the Advance requested by crediting
the Funding Account with a like amount of immediately available funds.
Section 2.4 FACILITY FEE. In consideration of Bank One's commitment to
make Advances, Borrower will pay to Bank One a one-time facility fee in the
amount of one-fourth of one percent (0.25%) of the Commitment.
Section 2.5 WAREHOUSE CUSTODIAN FEE. Borrower will pay to Bank One
warehouse custodian fees in the amounts set forth on Exhibit L for each Consumer
Note delivered to Bank One pursuant to Section 3.2. Such warehouse custodian
fees for each month shall be payable on the first day of the next calendar
month.
Section 2.6 MANDATORY REPAYMENTS.
(a) If at any time the Loan exceeds the aggregate Collateral Value,
Borrower shall within one (1) Business Day after receipt of written notice
thereof from Bank One, repay the amount of such excess to Bank One or (ii)
deliver to Bank One additional Eligible Consumer Notes as Collateral in an
amount sufficient to cause the Collateral Value of all Eligible Consumer Notes
(determined at the time of delivery of such additional Collateral to Bank One)
to equal or exceed the Loan.
(b) all payments of principal on the Consumer Notes that are part of the
Collateral shall be delivered to Bank One through a lock box (as described in
the Security Agreement) and applied to the prepayment of the Loan.
Section 2.7 BUSINESS DAYS. If the date for any payment hereunder falls on
a day which is not a Business Day, then for all purposes of the Note and this
Agreement the same shall be
12
deemed to have fallen on the next following Business Day, and such extension
of time shall in such case be included in the computation of payments of fees
and interest.
Section 2.8 PAYMENT PROCEDURE. All payments of interest on the Note, all
payments of principal, including any principal payment made with proceeds of
Collateral, and fees hereunder shall be made directly to Bank One in federal or
other immediately available funds before 1:00 p.m. (Dallas time) on the
respective dates when due via wire transfer to the Funding Account. All
payments received by Bank One shall be applied FIRST to all costs, expenses,
fees and reasonable attorneys' fees incurred by, and custodian or other fees due
to, Bank One arising out of or in connection with this Agreement, the Note or
the other Loan Documents, including without limitation, all costs, expenses,
fees and reasonable attorneys' fees arising out of or in connection with the
negotiation, preparation and enforcement of such documents; SECOND, to the
payment of interest then due and payable under the Note; and LAST, to the
principal of the Note. Bank One shall promptly notify Borrower of the
application of any payment to anything other than the principal of or interest
on the Note.
Section 2.9 RATE ELECTIONS. Borrower may from time to time designate all
or any portion of the Loan (including any yet to be made Advances which are to
be made prior to or at the beginning of the designated Interest Period but
excluding any portion of the Loan which is required to be repaid prior to the
end of the designated Interest Period) as a Fixed Rate Portion; provided that
without the consent of Bank One Borrower may make no such election during the
continuance of a Default and that Borrower may make such an election with
respect to an already existing Fixed Rate Portion only if such election will
take effect at or after the termination of the Interest Period applicable to
such already existing Fixed Rate Portion. Each election by Borrower of a Fixed
Rate Portion shall:
(a) Be made in writing in the form and substance of the "Rate
Election" attached hereto as Exhibit H, duly completed;
(b) Specify the amount of the Loan which Borrower desires to
designate as a Fixed Rate Portion, the first day of the Interest Period
which is to apply thereto, and the length of such Interest Period; and
(c) Be received by Bank One not later than 10:00 a.m., Dallas, Texas
time, on the third Business Day preceding the first day of the specified
Interest Period.
Each election which meets the requirements of this section (herein called a
"Rate Election") shall be irrevocable. Borrower may make no Rate Election
which does not specify an Interest Period complying with the definition of
"Interest Period" in Section 1.1 and the amount of the Fixed Rate Portion
elected in any Rate Election must be at least $100,000. Upon the
termination of each Interest Period the portion of the Loan theretofore
constituting the related Fixed Rate Portion shall, unless the subject of a
new Rate Election then taking effect, automatically become a part of the
Base Rate Portion and become subject to all provisions of the Loan
Documents governing the Base Rate Portion. Borrower shall have no more
than seven (7) Fixed Rate Portions in effect at any time.
13
Section 2.10 INCREASED COST OF FIXED RATE PORTIONS. If any applicable
domestic or foreign law, treaty, rule or regulation (whether now in effect or
hereinafter enacted or promulgated, including Regulation D) or any
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof (whether or not having the
force of law):
(a) shall change the basis of taxation of payments to Bank One of any
principal, interest, or other amounts attributable to any Fixed Rate
Portion or otherwise due under this Agreement in respect of any Fixed Rate
Portion (other than taxes imposed on the overall net income of Bank One or
any lending office of Bank One by any jurisdiction in which Bank One or any
such lending office is located); or
(b) shall change, impose, modify, apply or deem applicable any
reserve, special deposit or similar requirements in respect of any Fixed
Rate Portion (excluding those for which Bank One is fully compensated
pursuant to adjustments made in the definition of Fixed Rate) or against
assets of, deposits with or for the account of, or credit extended by, Bank
One; or
(c) shall impose on Bank One or the interbank eurocurrency deposit
market any other condition affecting any Fixed Rate Portion, the result of
which is to increase the cost to Bank One of funding or maintaining any
Fixed Rate Portion or to reduce the amount of any sum receivable by Bank
One in respect of any Fixed Rate Portion by an amount deemed by Bank One to
be material,
then Bank One shall promptly notify Borrower in writing of the happening of
such event and of the amount required to compensate Bank One for such event
(on an after-tax basis, taking into account any taxes on such
compensation), which notice shall set forth in reasonable detail the
computation of such amount to be paid, whereupon (i) Borrower shall pay
such amount to Bank One and (ii) Borrower may elect, by giving to Bank One
not less than three Business Days' notice, to convert all (but not less
than all) of any such Fixed Rate Portion into a part of the Base Rate
Portion.
Section 2.11 AVAILABILITY. If (a) any change in applicable laws,
treaties, rules or regulations or in the interpretation or administration
thereof of or in any jurisdiction whatsoever, domestic or foreign, shall make it
unlawful or impracticable for Bank One to fund or maintain Fixed Rate Portions,
or shall materially restrict the authority of Bank One to purchase or take
offshore deposits of dollars (i.e., "Eurodollars"), or (b) Bank One determines
that matching deposits appropriate to fund or maintain any Fixed Rate Portion
are not available to it, or (c) Bank One determines that the formula for
calculating the Fixed Rate does not fairly reflect the cost to Bank One of
making or maintaining loans based on such rate, then Borrower's right to elect
Fixed Rate Portions shall be suspended to the extent and for the duration of
such illegality, impracticability or restriction and all Fixed Rate Portions (or
portions thereof) which are then outstanding or are then the subject of any Rate
Election and which cannot lawfully or practicably be maintained or funded shall
immediately become or remain part of the Base Rate Portion. Xxxxxxxx agrees to
indemnify Bank One and hold it harmless against all costs, expenses, claims,
14
penalties, liabilities and damages which may result from any such change in law,
treaty, rule, regulation, interpretation or administration. Such
indemnification shall be on an after-tax basis, taking into account any taxes
imposed on the amounts paid as indemnity.
Section 2.12 FUNDING LOSSES. In addition to its other obligations
hereunder, Xxxxxxxx will indemnify Bank One against, and reimburse Bank One on
demand for any loss, expense or charge incurred or sustained by Bank One
(including any loss, expense or charge incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by Bank One to fund or maintain
Fixed Rate Portions or Advances), as a result of (a) any payment or prepayment
(whether authorized or required hereunder or otherwise) of all or a portion of a
Fixed Rate Portion on a day other than the day on which the applicable Interest
Period ends, (b) any payment or prepayment, whether required hereunder or
otherwise, of the Loan made after the delivery, but before the effective date,
of a Rate Election, if such payment or prepayment prevents such Rate Election
from becoming fully effective, (c) the failure of any Advance to be made or of
any Rate Election to become effective due to any condition precedent not being
satisfied or due to any other action or inaction of Borrower, or (d) any
conversion (whether authorized or required hereunder or otherwise) of all or any
portion of any Fixed Rate Portion into the Base Rate Portion or into a different
Fixed Rate Portion on a day other than the day on which the applicable Interest
Period ends. Such indemnification shall be on an after-tax basis, taking into
account any taxes imposed on the amounts paid as indemnity.
Section 2.13 REIMBURSABLE TAXES. Borrower covenants and agrees that:
(a) Borrower will indemnify Bank One against and reimburse Bank One
for all present and future income, stamp and other taxes, levies, costs and
charges whatsoever imposed, assessed, levied or collected on or in respect
of this Agreement or any Fixed Rate Portions (whether or not legally or
correctly imposed, assessed, levied or collected), excluding, however, any
taxes imposed on or measured by the overall net income of Bank One or any
lending office of Bank One by any jurisdiction in which Bank One or any
such lending office is located (all such non-excluded taxes, levies, costs
and charges being collectively called "Reimbursable Taxes" in this
section). Such indemnification shall be on an after-tax basis, taking into
account any taxes imposed on the amounts paid as indemnity.
(b) All payments on account of the principal of, and interest on, the
Loan and the Note, and all other amounts payable by Borrower to Bank One
hereunder, shall be made in full without set-off or counterclaim and shall
be made free and clear of and without deductions or withholdings of any
nature by reason of any Reimbursable Taxes, all of which will be for the
account of Borrower. In the event of Borrower being compelled by law or
other regulations to make any such deduction or withholding from any
payment to Bank One, Borrower shall pay on the due date of such payment, by
way of additional interest, such additional amounts as are needed to cause
the amount receivable by Bank One after such deduction or withholding to
equal the amount which would have been receivable in the absence of such
deduction or withholding. If Borrower should make any deduction or
withholding as aforesaid, Borrower shall within 60 days
15
thereafter forward to Bank One an official receipt or other official
document evidencing payment of such deduction or withholding.
(c) If Borrower is ever required to pay any Reimbursable Tax with
respect to any Fixed Rate Portion Borrower may elect, by giving to Bank One
not less than three Business Days' notice, to convert all (but not less
than all) of any such Fixed Rate Portion into a part of the Base Rate
Portion, but such election shall not diminish Borrower's obligation to pay
all Reimbursable Taxes.
ARTICLE III
COLLATERAL
Section 3.1 COLLATERAL. To secure the payment of the Obligations and the
performance by Borrower of its obligations hereunder and under the other Loan
Documents, Borrower (a) shall grant (and does hereby grant) to Bank One a first
and prior security interest in and to the Collateral and (b) shall execute all
documents and instruments, and perform all other acts reasonably deemed
necessary by Bank One, to perfect the security interest of Bank One in and to
such Collateral.
Section 3.2 BORROWING REQUEST; DELIVERY OF CONSUMER NOTES TO CUSTODIAN.
Each Borrowing Request shall be accompanied by a Submission List and shall be
delivered to Bank One at:
1900 Pacific, Sixth Floor
Dallas, Texas 75201
Telephone: (000) 000-0000
FAX: (000) 000-0000
Each Borrowing Request delivered to Bank One shall be accompanied by a
Submission List and the following items with respect to any Consumer Notes
thereby offered as security:
(a) the original of each Consumer Note, endorsed in blank (without
restriction or limitation);
(b) an original executed Assignment in blank for each Consumer Note,
in recordable form, and otherwise in form satisfactory to Bank One; and
(c) a completion certificate in a form agreed upon by Xxxxxxxx and
Bank One, signed by the Obligor on such Consumer Note; and
(d) a copy of an interim assignment if Xxxxxxxx did not originate
such Consumer Note.
16
Section 3.3 POWER OF ATTORNEY. Borrower hereby irrevocably appoints Bank
One its attorney in fact, with full power of substitution, for and on behalf and
in the name of Borrower, which power of attorney shall become effective upon the
occurrence and remain effective during the continuance of an Event of Default,
to (i) endorse and deliver to any Person any check, instrument or other paper
coming into Bank One's possession and representing payment made in respect of
any Consumer Note delivered to and held by Bank One hereunder as Collateral or
in respect of any other collateral;(ii) prepare, complete, execute, deliver and
record any assignment to Bank One or to any other Person of any Consumer Note
delivered to and held by Bank One hereunder as Collateral;(iii) endorse and
deliver any Consumer Note delivered to and held by Bank One hereunder as
Collateral and do every other thing necessary or desirable to effect transfer of
all or any part of the Collateral to Bank One or to any other Person;(iv) take
all necessary and appropriate action with respect to all Obligations and the
Collateral to be delivered to Bank One or held by Borrower in trust for Bank
One;(v) commence, prosecute, settle, discontinue, defend, or otherwise dispose
of any claim relating to any part of the Collateral; and (vi) sign Borrower's
name wherever appropriate to effect the performance of this Agreement. This
section shall be liberally, not restrictively, construed so as to give the
greatest latitude to Bank One's power, as Xxxxxxxx's attorney-in-fact, to
collect, sell, and deliver any of the Collateral and all other documents
relating thereto. The powers and authorities herein conferred on Bank One may
be exercised by Bank One through any Person who, at the time of the execution of
a particular instrument, is an authorized officer of Bank One. The power of
attorney conferred by this SECTION 3.3 is granted for a valuable consideration
and is coupled with an interest and irrevocable so long as the Obligations, or
any part thereof, shall remain unpaid or the Commitment is outstanding. All
Persons dealing with Bank One, or any officer thereof acting pursuant hereto
shall be fully protected in treating the powers and authorities conferred by
this SECTION 3.3 as existing and continuing in full force and effect until
advised by Bank One that the Obligations have been fully and finally paid and
satisfied and the Commitment has been terminated.
Section 3.4 REDEMPTION OF COLLATERAL.
(a) GENERALLY. So long as no Default or Event of Default shall be in
existence, Borrower may obtain the release of the security interest in favor of
Bank One in all or any part of the Collateral at any time, and from time to
time, by paying to Bank One, as a repayment hereunder, the Collateral Value of
the Collateral to be so released (such amount to be determined as of the date of
such release).
(b) REDEMPTION PURSUANT TO SALE. Borrower may from time to time request
that Bank One permit the sale of Collateral to an Approved Investor. Upon the
receipt by Bank One of such a request from Borrower, and so long as no Default
or Event of Default shall be in existence;
(i) Bank One shall deliver to the Approved Investor, under a Bailee
Letter, the Consumer Notes being sold which are held by Bank One pursuant
to SECTION 3.2 hereof, with the release of the security interest in favor
of Bank One in such items being conditioned upon timely payment to Bank One
of the amount described in SUBSECTION 3.4(b)(ii); and
17
(ii) Within a period of time acceptable to Bank One, but in no event
more than twenty-one (21) days after the delivery by Bank One to such
Approved Investor of the Consumer Notes described in SUBSECTION 3.4(b)(i),
Borrower shall pay, or cause to be paid, to Bank One as a repayment
hereunder an amount equal to the Collateral Value of the Consumer Notes
(such Collateral Value being determined as of the date of such redemption);
PROVIDED, that at no time shall more than $500,000 of Consumer Notes (such
value being determined as of the date of such redemption) be in transit to
or from or in the possession of any Approved Investor at any time, except
in the case of a sale to the trustee for an Asset Securitization Facility.
(c) CONTINUATION OF LIEN. The security interest in favor of Bank One in
all Consumer Notes transmitted pursuant to SUBSECTION 3.4(b) shall continue in
effect until such time as Bank One shall have received payment in full of the
amount described in SUBSECTION 3.4(b)(ii).
(d) APPLICATION OF PROCEEDS; NO DUTY. Subject to the next sentence of
this SUBSECTION 3.4(d), Bank One shall not be under any duty at any time to
credit Borrower for any amounts due from any Approved Investor in respect of any
purchase of any Consumer Notes contemplated under SUBSECTION 3.4(b) above, until
Bank One has actually received immediately available funds. Any funds so
received will be treated as payments under and processed and applied in
accordance with SECTION 2.8. Bank One shall not be under any duty at any time
to collect any amounts or otherwise enforce any obligations due from an Approved
Investor in respect of any such purchase.
Section 3.5 CORRECTION OF CONSUMER NOTES. Borrower may from time to time
request that Bank One release a Consumer Note (the "Released Note") that
constitutes Collateral so that such Consumer Note may be replaced by a corrected
Consumer Note (the "Correction Note"). Upon receipt by Bank One of such a
request from Borrower, and so long as no Default or Event of Default shall be in
existence, Bank One shall deliver to Borrower, under a Trust Receipt, the
Released Note to be corrected, with the release of the Lien in favor of Bank One
being conditioned upon the receipt by Bank One of a Correction Note acceptable
to it; PROVIDED, that (i) at no time shall more than $250,000 of Released Notes
(such value being determined by the Collateral Value assigned to such Collateral
when it is delivered to Bank One by Borrower hereunder) be released and not have
been replaced with Correction Notes hereunder,(ii) until such time as the
Correction Note shall have been delivered to Bank One, the Collateral Value
attributed to the Released Note shall be the lesser of (x) the Collateral Value
attributed to such Released Note without giving effect to this proviso and (y)
100% of the principal balance of the Correction Note and (iii) notwithstanding
the preceding clause (ii), unless the Correction Note is delivered to Bank One
endorsed in blank (without restriction or limitation) within fifteen (15) days
of the release by the Bank of the Released Note, the Collateral Value attributed
to both the Released Note and the Correction Note shall be zero.
Section 3.6 RELEASE OF COLLATERAL. So long as no Default or Event of
Default shall be in existence, Borrower may obtain the release of the security
interest in favor of Bank One in Consumer Notes constituting all or any part of
the Collateral at any time, and from time to time, PROVIDED that the aggregate
Collateral Value of the Consumer Notes (after giving effect to the contemplated
release) is greater than or equal to the Loan. Upon receipt of a properly
executed
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Collateral Release Request and provided that the other conditions hereof are
satisfied, Bank One shall (i) hold as custodian for Borrower the Consumer
Notes with respect to which Borrower has requested that Bank One release its
Lien and (ii) deliver same to such Person and for such purpose, including
Bank One for delivery as Collateral hereunder, as Borrower may direct in
writing; PROVIDED, that (a) Bank One shall not be required to hold any
Consumer Note or any document related thereto for the benefit of any Person
other than Borrower under the provisions of this SECTION 3.6, (b) the only
duty that Bank One shall have with respect to any Consumer Note held by Bank
One pursuant to this SECTION 3.6 shall be to exercise the same diligence in
the care thereof which Bank One exercises in the care of its own property,
(c) Bank One shall be fully protected in relying on any delivery instructions
from Borrower in which Borrower purports to be entitled to direct delivery of
the items identified therein, and (d) Xxxxxxxx shall reimburse Bank One for
all expenses incurred in connection with the delivery of any item held by it
under this SECTION 3.6. Without in any way limiting the proviso set forth in
the preceding sentence, Bank One shall have no duty to collect any amount
which may be due on or in respect of any Consumer Note held by it pursuant to
this SECTION 3.6, to notify Borrower of any amount which may be due in
connection therewith, nor to take any other action with respect thereto
except to deliver such Consumer Note to such Person as Borrower may direct.
ARTICLE IV
CONDITIONS PRECEDENT
The obligation of Bank One to make Advances hereunder is subject to
fulfillment of the conditions precedent stated in this ARTICLE IV.
Section 4.1 INITIAL BORROWING. The obligation of Bank One to make its
initial Advance hereunder shall be subject to, in addition to the conditions
precedent specified in SECTION 4.2 hereof, delivery to Bank One of the following
(each of the following documents being duly executed and delivered and in form
and substance satisfactory to Bank One, and, with the exception of the Note,
each in a sufficient number of originals that Bank One and its counsel may both
have an executed original of each document):
(a) an executed counterpart of this Agreement and of all instruments,
certificates and opinions referred to in this ARTICLE IV not theretofore
delivered (except the Borrowing Request which is to be delivered at the
time provided in SUBSECTION 4.2(a) hereof);
(b) the Note;
(c) the Security Agreement;
(d) the Guaranty;
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(e) the Underwriting Guidelines of Borrower, approved by Bank One in
its sole discretion;
(f) a certificate of the Secretary or Assistant Secretary of Borrower
setting forth (i) resolutions of Xxxxxxxx's board of directors authorizing
the execution, delivery, and performance by Xxxxxxxx of the Note, this
Agreement and any Security Instruments provided herein and identifying the
officers of Borrower authorized to sign such instruments, and (ii) specimen
signatures of the officers so authorized;
(g) a copy, certified as true by the Secretary or Assistant Secretary
of Xxxxxxxx, of the articles or certificate of incorporation and the bylaws
of Borrower, together with all amendments thereto;
(h) a certificate of the existence and good standing of Borrower in
its state of incorporation;
(i) a certificate of the Secretary or Assistant Secretary of
Guarantor setting forth (i) resolutions of Guarantor's board of directors
authorizing the execution, delivery, and performance by Guarantor of the
Guaranty and any other Loan Documents provided herein and identifying the
officers of Guarantor authorized to sign such instruments, and (ii)specimen
signatures of the officers so authorized;
(j) a copy, certified as true by the Secretary or Assistant Secretary
of Guarantor, of the articles or certificate of incorporation and the
bylaws of Guarantor, together with all amendments thereto;
(k) a certificate of the existence and good standing of Guarantor in
its state of incorporation;
(l) a favorable written opinion from Xxxxxxxx's General Counsel as to
such matters incident to the transactions herein contemplated as Bank One
may reasonably request; and
(m) such other documents as Bank One may reasonably request at any
time at or prior to the Borrowing Date of the initial Borrowing hereunder.
Section 4.2 ALL BORROWINGS. The obligation of Bank One to make any
Advance to fund any Borrowing pursuant to this Agreement (including the first)
is subject to the following further conditions precedent:
(a) prior to 10:30 a.m. (Dallas time) on the Borrowing Date, Borrower
shall deliver to Bank One a Borrowing Request executed by Xxxxxxxx and
accompanied by the items required by SECTION 3.2 hereof;
20
(b) all Consumer Notes in which Xxxxxxxx has granted a Lien to Bank
One shall have been physically delivered to the possession of Bank One or a
bailee acceptable to Bank One to the extent that such possession is
necessary or appropriate for the purpose of perfecting the Lien of Bank One
in such collateral and Bank One has received evidence of its filed or
perfected lien and security interest;
(c) the representations and warranties of each Related Person
contained in this Agreement or any Security Instrument (other than those
representations and warranties which are by their terms limited to the date
of the agreement in which they are initially made) shall be true and
correct in all material respects on and as of the date of such Advance;
(d) no Default or Event of Default shall have occurred and be
continuing and no change or event which constitutes a Material Adverse
Effect shall have occurred as of the date of such Advance;
(e) the Funding Account shall be established and in existence;
(f) the making of such Advance shall not be prohibited by any
Governmental Requirement;
(g) Bank One shall have received evidence of insurance covering
Borrower's business assets, in amounts and in form and substance
satisfactory to Bank;
(h) Bank One shall have received such other documents and opinions of
counsel, including such documents as may be necessary or desirable to
perfect or maintain the priority of any Lien granted or intended to be
granted hereunder or otherwise and including favorable written opinions of
counsel with respect xxxxxxx, as Bank One may reasonably request;
(i) Borrower shall have paid the Facility Fee and the fees and
expenses of Bank One's counsel for its work in connection with the
transactions contemplated by the Agreement; and
(j) the sole shareholder of Borrower shall have made to Borrower
capital contributions in the following aggregate amounts by the following
dates: $1,000,000 by the date hereof; $1,500,000 by February 15, 1997; and
$2,500,000 by May 15, 1997.
Delivery to Bank One of a Borrowing Request shall be deemed to constitute a
representation and warranty by Borrower on the date thereof and on the Borrowing
Date, if any, set forth therein as to the facts specified in Subsections (c) and
(d) of this SECTION 4.2.
ARTICLE V
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REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants as follows:
Section 5.1 ORGANIZATION AND GOOD STANDING. Each Related Person (a) is a
corporation duly incorporated and existing in good standing under the laws of
the jurisdiction of its incorporation, (b) is duly qualified as a foreign
corporation and in good standing in all jurisdictions in which its failure to be
so qualified could have a Material Adverse Effect, (c) has the corporate power
and authority to own its properties and assets and to transact the business in
which it is engaged and is or will be qualified in those states wherein it
proposes to transact business in the future and (d) is in compliance with all
Requirements of Law except to the extent that the failure to comply therewith
could not, in the aggregate, have a Material Adverse Effect.
Section 5.2 AUTHORIZATION AND POWER. Each Related Person has the
corporate power and requisite authority to execute, deliver and perform the Loan
Documents to which it is a party; each Related Person is duly authorized to and
has taken all corporate action necessary to authorize it to, execute, deliver
and perform the Loan Documents to which it is a party and is and will continue
to be duly authorized to perform such Loan Documents.
Section 5.3 NO CONFLICTS OR CONSENTS. Neither the execution and delivery
by any Related Person of the Loan Documents to which it is a party, nor the
consummation of any of the transactions herein or therein contemplated, nor
compliance with the terms and provisions hereof or with the terms and provisions
thereof, will (a) materially contravene or conflict with any terms or provisions
of the charter or bylaws of any Related Person, any Requirement of Law to which
any Related Person is subject, or any indenture, mortgage, deed of trust, or
other agreement or instrument to which any Related Person is a party or by which
any Related Person may be bound, or to which the Property of any Related Person
may be subject, or (b) result in the creation or imposition of any Lien, other
than the Lien of the Security Agreement, on the Property of any Related Person.
All actions, approvals, consents, waivers, exemptions, variances, franchises,
orders, permits, authorizations, rights and licenses required to be taken, given
or obtained, as the case may be, from any Governmental Authority that are
necessary in connection with the transactions contemplated by the Loan Documents
have been obtained.
Section 5.4 ENFORCEABLE OBLIGATIONS. This Agreement, the Note and the
other Loan Documents to which any Related Person is a party are the legal, valid
and binding obligations of such Related Person, enforceable in accordance with
their respective terms, except as limited by Debtor Laws.
Section 5.5 PRIORITY OF LIENS. Upon delivery to Bank One of each
Borrowing Request, Bank One shall have valid, enforceable, perfected, first
priority Liens and security interests in each Consumer Note identified therein
and thereafter or concurrently delivered to Bank One.
Section 5.6 NO LIENS. Borrower has good and indefeasible title to the
Collateral free and clear of all Liens and other adverse claims of any nature,
other than Liens in the Collateral in favor of Bank One.
22
Section 5.7 FINANCIAL CONDITION OF BORROWER. Borrower has delivered to
Bank One copies of the annual audited and quarterly unaudited Consolidated
balance sheets of Guarantor as of October 31, 1995 and July 31, 1996,
respectively, and the related Consolidated statements of income, stockholders'
equity and cash flows of Guarantor for the periods ended such dates; such
financial statements fairly present the Consolidated financial condition of
Guarantor as of such dates and the results of operations of Guarantor for the
period ended on such dates and have been prepared in accordance with GAAP,
subject to normal year-end adjustments; as of July 31, 1996, there were no
obligations, liabilities or Indebtedness (including material contingent and
indirect liabilities and obligations or unusual forward or long-term
commitments) of Borrower which are not reflected in such financial statements
and no change which constitutes a Material Adverse Effect has occurred in the
financial condition or business of Borrower since the date of such financial
statements.
Section 5.8 FULL DISCLOSURE. There is no material fact that Borrower has
not disclosed to Bank One which could adversely affect the properties, business,
prospects or condition (financial or otherwise) of Borrower, or could adversely
affect the Collateral. To the best knowledge of Xxxxxxxx, neither the financial
statements referred to in SECTION 5.7 hereof, nor any Borrowing Request,
officer's certificate or statement delivered by Borrower to Bank One in
connection with this Agreement, contains any untrue statement of material fact.
Section 5.9 NO DEFAULT. No Related Person is in default under any loan
agreement, mortgage, security agreement or other material agreement or
obligation to which it is a party or by which any of its Property is bound.
Section 5.10 NO LITIGATION. There are no material actions, suits or
legal, equitable, arbitration or administrative proceedings pending, or to the
knowledge of Borrower threatened, against any Related Person, the adverse
determination of which could constitute a Material Adverse Effect.
Section 5.11 TAXES. All tax returns required to be filed by each Related
Person in any jurisdiction have been filed and all taxes, assessments, fees and
other governmental charges upon each Related Person or upon any of its
properties, income or franchises have been paid prior to the time that such
taxes could give rise to a Lien thereon, unless protested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been established on the books of such Related Person. No Related
Person has any knowledge of any proposed tax assessment against any Related
Person.
Section 5.12 PRINCIPAL OFFICE, ETC. The principal office, chief executive
office and principal place of business of each Related Person is at the address
set forth in Section 10.1.
Section 5.13 COMPLIANCE WITH XXXXX. No Related Person nor any ERISA
Affiliate of any Related Person currently maintains, contributes to, is required
to contribute to or has any liability, whether absolute or contingent, with
respect to an ERISA Plan. With respect to all other employee benefit plans
maintained or contributed to by each Related Person, each Related Person is in
material compliance with ERISA.
23
Section 5.14 SUBSIDIARIES. As of the date hereof, Borrower does not have
any Subsidiary or own any stock in any other corporation or association.
Section 5.15 INDEBTEDNESS. No Related Person has any Indebtedness
outstanding other than the Indebtedness permitted by SECTION 7.2.
Section 5.16 PERMITS, PATENTS, TRADEMARKS, ETC.
(a) Each Related Person has all permits and licenses necessary for the
operation of its business, except to the extent that failure to obtain any such
permit or license could not have a Material Adverse Effect on such Related
Person.
(b) Each Related Person owns or possesses (or is licensed or otherwise has
the necessary right to use) all patents, trademarks, service marks, trade names
and copyrights, technology, know-how and processes, and all rights with respect
to the foregoing, which are necessary for the operation of its business, without
any known material conflict with the rights of others. The consummation of the
transactions contemplated hereby will not alter or impair in any material
respect any of such rights of each Related Person.
Section 5.17 STATUS UNDER CERTAIN FEDERAL STATUTES. No Related Person is
(a) a "holding company" or a "subsidiary company" of a "holding company" or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", as such terms are defined in the Public Utility Holding Company Act of
1935, as amended, (b) a "public utility", as such term is defined in the Federal
Power Act, as amended, (c) an "investment company", or a company "controlled" by
an "investment company", within the meaning of the Investment Company Act of
1949, as amended or (d) a "rail carrier", or a "person controlled by or
affiliated with a rail carrier", within the meaning of Title 49, U.S.C., and
each Related Person is not a "carrier" to which 49 U.S.C. Section 11301(b)(1) is
applicable.
Section 5.18 SECURITIES ACT. No Related Person has issued any
unregistered securities in violation of the registration requirements of the
Securities Act of 1933, as amended, or of any other Requirement of Law, and is
not violating any rule, regulation, or requirement under the Securities Act of
1933, as amended, or the Securities and Exchange Act of 1934, as amended. No
Related Person is required to qualify an indenture under the Trust Indenture Act
of 1939, as amended, in connection with its execution and delivery of the Note.
Section 5.19 POLLUTION CONTROL. Each Related Person is in compliance
with, and to the best of each Related Person's knowledge after due inquiry, each
Related Person has, at all times since its incorporation, been in compliance
with, all Requirements of Law relating to pollution control (a) in the United
States and the State of Texas and (b) in each other jurisdiction where it is
presently doing business.
Section 5.20 NO APPROVALS REQUIRED. Other than consents and approvals
previously obtained and actions previously taken, neither the execution and
delivery of this Agreement, the Note and the other Loan Documents to which any
Related Person is a party, nor the
24
consummation of any of the transactions contemplated hereby or thereby
requires the consent or approval of, the giving of notice to, or the
registration, recording or filing by any Related Person of any document with,
or the taking of any other action in respect of, any Governmental Authority
which has jurisdiction over each Related Person or any of its Property.
Section 5.21 SURVIVAL OF REPRESENTATIONS. All representations and
warranties by Xxxxxxxx herein shall survive delivery of the Note and the making
of the Advances, and any investigation at any time made by or on behalf of Bank
One shall not diminish the right of Bank One to rely thereon.
Section 5.22 INDIVIDUAL CONSUMER NOTES. Borrower hereby represents that
with respect to each Consumer Note that is part of the Collateral:
(a) The terms of each Consumer Note have not been impaired, waived,
altered or modified in any respect, except by written instruments delivered
to Bank One and no provision of any Consumer Note has been "xxxxxx out" or
erased unless such modification has been initialed by each of the parties
to the Consumer Note. No instrument of waiver, alteration or modification
has been executed, and no obligor on a Consumer Note has been released, in
whole or in part, except in connection with an assumption agreement, a copy
of which assumption agreement has been delivered to Bank One;
(b) No Consumer Note is subject to any set-off, counterclaim or
defense, including the defense of usury, nor will the operation of any of
the terms of any Consumer Note or the exercise of any right thereunder,
render such Consumer Note unenforceable, in whole or in part, or subject to
any right of rescission, set-off, counterclaim or defense, including the
defense of usury, and to the best knowledge of Borrower, no such right of
rescission, set-off, counterclaim or defense has been asserted in any
proceeding or was asserted in any state or federal bankruptcy or insolvency
proceeding at the time the Consumer Note was originated;
(c) Any and all Requirements of Law applicable to each Consumer Note
have been complied with including, without limitation, all consumer laws,
usury, truth-in-lending, consumer credit protection, equal credit
opportunity or disclosure laws applicable to each Consumer Note;
(d) Xxxxxxxx has not waived the performance by the Obligor of any
action, if the Obligor's failure to perform such action would cause the
Consumer Note to be in default;
(e) Each Consumer Note is genuine and each is the legal, valid and
binding obligation of the obligor thereof, enforceable in accordance with
its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting creditors'
rights in general and by general principles of equity;
25
(f) To the best knowledge of Borrower, all parties to each Consumer
Note had legal capacity at the time to execute and deliver such Consumer
Note, and such Consumer Note has been duly and properly executed by such
parties;
(g) Borrower has good and marketable title to each Consumer Note, was
the sole owner thereof and had full right to pledge the Consumer Note to
Bank One free and clear of any other encumbrance, equity, lien, pledge,
charge, claim or security interest;
(h) To the best knowledge of Borrower, there is no default, breach,
violation or event of acceleration existing under any Consumer Note and
there is no event which, with the passage of time or with notice and/or the
expiration of any grace or cure period, would constitute a default, breach,
violation or event of acceleration and no such default, breach, violation
or event of acceleration has been waived;
(i) Each Consumer Note originated by Borrower or a third party is
underwritten by Borrower in accordance with Borrower's then current
underwriting guidelines and all applicable regulatory requirements.
(j) All improvements to be made to each Obligor Property with the
proceeds of the Consumer Note have been completed and a certificate for
such Consumer Note executed by the related Obligor wherein such Obligor
states that the related contractor or seller of the home improvement has
completed to such Obligor's satisfaction the improvements for which the
Consumer Note was obtained has been delivered to Borrower;
(k) The origination practices of Borrower, and to the best knowledge
of Borrower, the origination practices used by third party originators,
with respect to the the Consumer Notes and the collection practices used by
the Borrower with respect to each Consumer Note have been in all material
respects legal, proper, prudent and customary in the home improvement loan
origination and servicing business; and
(l) Each Consumer Note originated by Xxxxxxxx, and to the best
knowledge of Borrower, each Consumer Note originated by a third party, was
originated in compliance with all applicable laws and no fraud or
misrepresentation was committed by any Person in connection therewith.
ARTICLE VI
AFFIRMATIVE COVENANTS
Each Related Person shall at all times comply with the covenants contained
in this ARTICLE VI, from the date hereof and for so long as any part of the
Obligations or the Commitment is outstanding.
26
Section 6.1 TAXES AND OTHER LIENS. Each Related Person shall pay and
discharge promptly all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or upon any of its Property as well as all
claims of any kind (including claims for labor, materials, supplies and rent)
which, if unpaid, might become a Lien upon any or all of its Property; provided,
however, Borrower shall not be required to pay any such tax, assessment, charge,
levy or claim if the amount, applicability or validity thereof shall currently
be contested in good faith by appropriate proceedings diligently conducted by or
on behalf of Borrower and if Borrower shall have set up reserves therefor
adequate under GAAP.
Section 6.2 MAINTENANCE. Each Related Person shall (i) maintain its
corporate existence, rights and franchises;(ii) observe and comply in all
material respects with all Governmental Requirements, and (iii) maintain its
Properties (and any Properties leased by or consigned to it or held under title
retention or conditional sales contracts) in good and workable condition at all
times and make all repairs, replacements, additions and improvements to its
Properties as are necessary and proper so that the business carried on in
connection therewith may be conducted properly and efficiently at all times.
Section 6.3 FURTHER ASSURANCES. Borrower shall, within three (3) Business
Days (or in the case of Consumer Notes, such longer period as provided under
SECTION 3.5 of this Agreement) after the request of Bank One, cure any defects
in the execution and delivery of the Note, this Agreement or any other Loan
Document and each Related Person shall, at its expense, promptly execute and
deliver to Bank One upon request all such other and further documents,
agreements and instruments in compliance with or accomplishment of the covenants
and agreements of each Related Person in this Agreement and in the other Loan
Documents or to further evidence and more fully describe the collateral intended
as security for the Note, or to correct any omissions in this Agreement or the
other Loan Documents, or more fully to state the security for the obligations
set out herein or in any of the other Loan Documents, or to make any recordings,
to file any notices, or obtain any consents.
Section 6.4 REIMBURSEMENT OF EXPENSES. Borrower shall pay (i) all
reasonable legal fees (including, without limitation, allocated costs for
in-house legal service) incurred by Bank One in connection with the
preparation, negotiation or execution of this Agreement, the Note and the
other Loan Documents and any amendments, consents or waivers executed in
connection therewith,(ii) all fees, charges or taxes for the recording or
filing of the Security Instruments,(iii) all out-of-pocket expenses of Bank
One in connection with the administration of this Agreement, the Note and the
other Loan Documents, including courier expenses incurred in connection with
the Collateral, and (iv) all amounts expended, advanced or incurred by Bank
One to satisfy any obligation of Borrower under this Agreement or any of the
other Loan Documents or to collect the Note, or to enforce the rights of Bank
One under this Agreement or any of the other Loan Documents, which amounts
shall include all court costs, reasonable attorneys' fees (including, without
limitation, for trial, appeal or other proceedings), fees of auditors and
accountants, and investigation expenses reasonably incurred by Bank One in
connection with any such matters, together with interest at the post-maturity
rate specified in the Note on each item specified in clause (i) through (iv)
from thirty (30) days after the date of written demand or request for
reimbursement until the date of reimbursement.
27
Section 6.5 INSURANCE. Each Related Person shall maintain with
financially sound and reputable insurers, insurance with respect to its
Properties and business against such liabilities, casualties, risks and
contingencies and in such types and amounts as is customary in the case of
Persons engaged in the same or similar businesses and similarly situated,
including, without limitation, a fidelity bond or bonds with financially sound
and reputable insurers with such coverage and in such amounts as is customary in
the case of Persons engaged in the same or similar businesses and similarly
situated. Upon request of Bank One, each Related Person shall furnish or cause
to be furnished to Bank One from time to time a summary of the insurance
coverage of each Related Person in form and substance satisfactory to Bank One
and if requested shall furnish Bank One copies of the applicable policies.
Section 6.6 ACCOUNTS AND RECORDS. Each Related Person shall keep books of
record and account in which full, true and correct entries will be made of all
dealings or transactions in relation to its business and activities, in
accordance with GAAP.
Section 6.7 RIGHT OF INSPECTION. Each Related Person shall permit
authorized representatives of Bank One to discuss the business, operations,
assets and financial condition of such Related Person with their officers and
employees, and to visit and inspect any of the Properties of each Related
Person, all at such reasonable times and as often as Bank One may request. Each
Related Person will provide its accountants with a copy of this Agreement
promptly after the execution hereof and will instruct its accountants to answer
candidly any and all questions that the officers of Bank One or any authorized
representatives of Bank One may address to them in reference to the financial
condition or affairs of any Related Person as those conditions or affairs relate
to this Agreement. Each Related Person may have its representatives in
attendance at any meetings between the officers or other representatives of Bank
One and such Related Person's accountants held in accordance with this
authorization.
Section 6.8 NOTICE OF CERTAIN EVENTS. Borrower shall promptly notify Bank
One upon (i) the receipt of any notice from, or the taking of any other action
by, the holder of any promissory note, debenture or other evidence of
Indebtedness of any Related Person with respect to a claimed default, together
with a detailed statement by a responsible officer of Borrower specifying the
notice given or other action taken by such holder and the nature of the claimed
default and what action Borrower is taking or proposes to take with respect
thereto;(ii) the commencement of, or any determination in, any legal, judicial
or regulatory proceedings which, if adversely determined, could have a Material
Adverse Effect;(iii) any change in senior management of Borrower;(iv) any
material adverse change in the business, operations, prospects or financial
condition of any Related Person, including, without limitation, the insolvency
of any Related Person,(v) any event or condition which, if adversely determined,
could have a Material Adverse Effect or (vi) the occurrence of any Termination
Event.
Section 6.9 USE OF PROCEEDS; MARGIN STOCK. The proceeds of the Advances
shall be used by Xxxxxxxx solely for the funding of Consumer Notes in the
ordinary course of Xxxxxxxx's business. None of such proceeds shall be used for
the purpose of purchasing or carrying any "margin stock" as defined in
Regulation U, or for the purpose of reducing or retiring any Indebtedness which
was originally incurred to purchase or carry margin stock or for any other
28
purpose which might constitute this transaction a "purpose credit" within the
meaning of such Regulation U. Neither Borrower nor any Person acting on behalf
of Borrower shall take any action in violation of Regulation U or Regulation X
or shall violate Section 7 of the Securities Exchange Act of 1934 or any rule or
regulation thereunder, in each case as now in effect or as the same may
hereafter be in effect.
Section 6.10 NOTICE OF DEFAULT. Borrower shall furnish to Bank One
immediately upon becoming aware of the existence of any Default or Event of
Default, a written notice specifying the nature and period of existence thereof
and the action which Borrower is taking or proposes to take with respect
thereto.
Section 6.11 COMPLIANCE WITH LOAN DOCUMENTS. Each Related Person shall
promptly comply with any and all covenants and provisions of this Agreement the
Note and the other Loan Documents.
Section 6.12 OPERATIONS AND PROPERTIES. Each Related Person shall comply
in all material respects with all Government Requirements applicable to it, and
in accordance with customary industry standards in managing and operating its
business. Borrower shall strictly comply with the Underwriting Guidelines.
Section 6.13 FINANCIAL STATEMENTS AND REPORTS. The Related Persons shall
at all times maintain full and accurate books of account and records. The
Related Persons shall maintain a standard system of accounting and Borrower
shall furnish to Bank One the following, all in form and detail reasonably
satisfactory to Bank One:
(a) Promptly after becoming available, and in any event within ninety
(90) days after the close of each Fiscal Year, the Consolidated and
consolidating balance sheets of Guarantor as of the end of such Fiscal
Year, and the related Consolidated and consolidating statements of income,
stockholders' equity and cash flows of Guarantor for such Fiscal Year,
setting forth in each case in comparative form the corresponding figures
for the preceding Fiscal Year, accompanied by the related report of
independent certified public accountants of national standing acceptable to
Bank One which report shall be to the effect that such statements have been
prepared in accordance with GAAP applied on a basis consistent with prior
periods except for such changes in such principles with which the
independent public accountants shall have concurred;
(b) Promptly after becoming available, and in any event within ninety
(90) days after the close of each Fiscal Year, the Consolidated and
consolidating balance sheets of Borrower as of the end of such Fiscal Year,
and the related Consolidated and consolidating statements of income,
stockholders' equity and cash flows of Borrower for such Fiscal Year,
setting forth in each case in comparative form the corresponding figures
for the preceding Fiscal Year, accompanied by the related report of
independent certified public accountants of national standing acceptable to
Bank One which report shall be to the effect that such statements have been
prepared in accordance with GAAP applied on a basis
29
consistent with prior periods except for such changes in such principles
with which the independent public accountants shall have concurred;
(c) Promptly after becoming available, and in any event within thirty
(30) days after the end of each fiscal quarter, including the fourth Fiscal
Quarter in each Fiscal Year, Consolidated and consolidating balance sheets
of Guarantor as of the end of such quarter and the related Consolidated and
consolidating statements of income, stockholders' equity and cash flows of
Guarantor for such quarter and the period from the first day of the then
current Fiscal Year through the end of such quarter, certified by the chief
financial officer or other executive officer of Guarantor to have been
prepared in accordance with GAAP applied on a basis consistent with prior
periods, subject to normal year-end adjustments;
(d) Promptly after becoming available, and in any event within thirty
(30) days after the end of each month, including the twelfth month in each
Fiscal Year, balance sheets of Borrower as of the end of such month and the
related statements of income, stockholders' equity and cash flows of
Borrower for such month and the period from the first day of the then
current Fiscal Year through the end of such month, certified by the chief
financial officer or other executive officer of Borrower to have been
prepared in accordance with GAAP applied on a basis consistent with prior
periods, subject to normal year-end adjustments;
(e) Promptly upon receipt thereof, a copy of each other report
submitted to Guarantor by independent accountants in connection with any
annual, interim or special audit of the books of Borrower or Guarantor;
(f) Promptly and in any event within thirty (30) days after the end
of each calendar month, a certificate executed by the president or chief
financial officer of Borrower, setting forth all of Xxxxxxxx's warehouse
borrowings;
(g) Promptly and in any event within thirty (30) days after the end
of each Fiscal Quarter in each Fiscal Year (except the last), and within
fifteen (15) days after the completion of each year-end audit by Xxxxxxxx's
independent public accountants, a completed Officer's Certificate in the
form of Exhibit "C" hereto, executed by the president, chief financial
officer or other executive officer of Guarantor and Borrower.
(h) Promptly and in any event within thirty (30) days after the end
of each month, a management report regarding Borrower's servicing and
delinquency, including delinquency status of Consumer Notes, total
principal amount, number of Consumer Notes, default experience, geographic
concentration, weighted average coupon, weighted average maturity, weighted
average servicing fee, in each case in form and detail as required by Bank
One, prepared as of the end of such month and for the Fiscal Year to date;
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(i) As soon as available, and in any event within 30 days after the
end of each month, a Borrowing Base Report, appropriately completed with
all attachments and in the form of Exhibit F attached hereto; and
(j) Such other information concerning the business, properties or
financial condition of the Related Persons as Bank One may reasonably
request.
ARTICLE VII
NEGATIVE COVENANTS
Each Related Person shall at all times comply with the covenants contained
in this ARTICLE VII, from the date hereof and for so long as any part of the
Obligations or the Commitment is outstanding:
Section 7.1 NO MERGER. No Related Person shall merge or consolidate with
or into any Person, except that any Subsidiary (except Borrower) of Guarantor
may merge or consolidate with Guarantor as long as Guarantor is the surviving
business entity. No Related Person shall acquire by purchase or otherwise all
or substantially all of the assets (except to the extent that such assets
consist solely of Consumer Notes and rights to service Consumer Notes) or
capital stock of any Person.
Section 7.2 LIMITATION ON INDEBTEDNESS. No Related Person shall incur,
create, contract, assume, have outstanding, guarantee or otherwise be or become,
directly or indirectly, liable in respect of any Indebtedness except for the
following:
(a) the Obligations;
(b) the Subordinated Debt;
(c) unsecured Indebtedness for working capital advances, owed by
Xxxxxxxx to Guarantor; and
(d) lease financing or purchase money financing for equipment which
is secured by the equipment so leased or purchased.
Section 7.3 BUSINESS. No Related Person shall, directly or indirectly,
engage in any business which differs materially from that currently engaged in
by such Related Person.
Section 7.4 LIQUIDATIONS AND DISPOSITIONS OF SUBSTANTIAL ASSETS. No
Related Person shall dissolve or liquidate or sell, transfer, lease or otherwise
dispose of any material portion of its property or assets or business; PROVIDED
HOWEVER, that subject to SECTION 3.4(b) hereof, nothing in this SECTION 7.4
shall be construed to prohibit such Related Person from selling Consumer Notes
in the ordinary course of its business.
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Section 7.5 LOANS, ADVANCES, AND INVESTMENTS. No Related Person shall
make any loan (other than Consumer Notes), advance, or capital contribution to,
or investment in (including any investment in any Subsidiary, joint venture or
partnership), or purchase or otherwise acquire any of the capital stock,
securities, or evidences of indebtedness of, any Person (collectively,
"INVESTMENT"), or otherwise acquire any interest in, or control of, another
Person, except for the following:
(a) Cash Equivalents;
(b) Any acquisition of securities or evidences of indebtedness of
others when acquired by each Related Person in settlement of accounts
receivable or other debts arising in the ordinary course of its business,
so long as the aggregate amount of any such securities or evidences of
indebtedness is not material to the business or condition (financial or
otherwise) of each Related Person;
(c) Consumer Notes acquired in the ordinary course of each Related
Person's business; and
(d) Investments in its wholly-owned Subsidiaries in an aggregate
amount not to exceed $100,000 at any time; provided that such Subsidiary
shall have executed and delivered to Bank One a guaranty of all of the
Obligations in form and substance acceptable to Bank One, in its sole
discretion.
Section 7.6 ACTIONS WITH RESPECT TO COLLATERAL. Borrower shall not:
(a) Compromise, extend, release, or adjust payments on any
Collateral;
(b) Agree to the amendment or termination of the Asset Securitization
Facility, if such amendment, termination or substitution may reasonably be
expected (as determined by Bank One in its sole discretion) to have a
Material Adverse Effect;
(c) Transfer, sell, assign, or deliver any Collateral pledged to Bank
One to any Person other than Bank One, except pursuant to the Asset
Securitization Facility or pursuant to SECTION 3.4; or
(d) Xxxxx, create, incur, permit or suffer to exist any Lien upon any
Collateral except for Liens granted to Bank One to secure the Consumer
Notes and Obligations.
Section 7.7 TANGIBLE NET WORTH. As of the date hereof, Xxxxxxxx's
Consolidated Tangible Net Worth shall not be less than $1,000,000; as of
February 15, 1997, Xxxxxxxx's Consolidated Tangible Net Worth shall not be less
than $1,500,000; and as of May 15, 1997 and as of the last day of each Fiscal
Quarter thereafter, Xxxxxxxx's Consolidated Net Worth shall not be less than
$2,500,000.
32
Section 7.8 MINIMUM LIQUIDITY. Borrower at all times shall maintain cash
and/or Cash Equivalents in an amount of not less than $500,000.
Section 7.9 TOTAL LIABILITIES TO BORROWER'S CONSOLIDATED TANGIBLE NET
WORTH. The ratio of Xxxxxxxx's Consolidated Total Liabilities to Borrower's
Consolidated Tangible Net Worth shall not be more than 7.0 to 1.0, as of the
last day of any calendar month.
Section 7.10 RESTRICTIONS ON DIVIDENDS AND PAYMENTS OF SUBORDINATED DEBT.
No Related Person shall directly or indirectly declare or make, or incur any
liability to make, any Dividend. Without Bank One's prior written consent,
which consent shall not be unreasonably withheld, no Related Person shall make
any payment on the Subordinated Debt prior to the stated maturity thereof;
provided that the Related Persons may pay interest on the Subordinated Debt
without Bank One's consent so long as no Default or Event of Default shall have
occurred and be continuing.
Section 7.11 TRANSACTIONS WITH AFFILIATES. No Related Person shall enter
into any transactions including, without limitation, any purchase, sale, lease
or exchange of property or the rendering of any service, with any Affiliate
other than another Related Person unless such transactions are otherwise
permitted under this Agreement, are in the ordinary course of each Related
Person's business and are upon fair and reasonable terms no less favorable to
such Related Person than it would obtain in a comparable arm's length
transaction with a Person not an Affiliate.
Section 7.12 LIENS. No Related Person shall grant, create, incur, assume,
permit or suffer to exist any Lien, upon any of its Property, including without
limitation any and all of each Related Person's Consumer Notes, and the proceeds
from any thereof, other than (i) Liens which secure payment of the Obligations,
and (ii) to the extent not otherwise prohibited hereunder, Liens which secure
payment of the Indebtedness described in Section 7.2(b) on property other than
Collateral.
Section 7.13 ERISA PLANS. No Related Person shall adopt or agree to
maintain or contribute to any ERISA Plan without the prior written consent of
Bank One which consent shall not be unreasonably withheld. Each Related Person
shall promptly notify Bank One in writing in the event an ERISA Affiliate adopts
an ERISA Plan.
Section 7.14 CHANGE OF PRINCIPAL OFFICE. No Related Person shall move its
principal office, executive office or principal place of business from the
address set forth in SECTION 10.1 without prior written notice to Bank One.
Section 7.15 FISCAL YEAR, METHOD OF ACCOUNTING. No Related Person shall
change its Fiscal Year or make any material change in its method of accounting
without prior written notice to Bank One.
ARTICLE VIII
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EVENTS OF DEFAULT
Section 8.1 NATURE OF EVENT. An Event of Default shall exist if any one
or more of the following occurs:
(a) Borrower fails to make any payment of principal or interest on
the Note, or payment of any fee, expense or other amount due hereunder,
under the Note or under any other Loan Document, on or before the date such
payment is due;
(b) Guarantor fails to make any payment of any Obligation owing by
Guarantor under the Guaranty on or before the date such payment in due;
(c) Default is made in the due observance or performance by any
Related Person of any covenant set forth in ARTICLE VII or by Guarantor of
any covenant set forth in the Guaranty;
(d) Default is made in the due observance or performance by any
Related Person of any of the other covenants or agreements contained in
this Agreement and such default continues for a period of thirty (30) days
after Bank One gives Borrower notice thereof;
(e) Any Related Person defaults in the due observance or performance
or any of the covenants or agreements contained in any other Loan Document
to which it is a party, and (unless such default otherwise constitutes a
Default pursuant to other provisions of this SECTION 8.1) such default
continues unremedied beyond the expiration of any applicable grace period
which may be expressly allowed under such other Loan Document;
(f) Any material statement, warranty or representation by or on
behalf of any Related Person contained in this Agreement, the Note or any
other Loan Document to which it is a party, or in any Borrowing Request,
officer's certificate or other writing furnished in connection with this
Agreement, proves to have been incorrect or misleading in any material
respect as of the date made or deemed made;
(g) any Related Person fails to make when due or within any
applicable grace period any payment on any Indebtedness other than the
Obligations with an unpaid principal balance of over $100,000; or any event
or condition occurs under any provision contained in any agreement under
which such obligation is governed, evidenced or secured (or any other
material breach or default under such obligation or agreement occurs) if
the effect thereof is to cause or permit the holder or trustee of such
obligation to cause such obligation to become due prior to its stated
maturity; or any such obligation becomes due (other than by regularly
scheduled payments) prior to its stated maturity; or any of the foregoing
occurs with respect to any one or more items of Indebtedness of any Related
Person with unpaid principal balances exceeding, in the aggregate,
$100,000;
(h) Any Related Person or Guarantor:
34
(i) suffers the entry against it of a judgment, decree or order
for relief by a court of competent jurisdiction in an involuntary
proceeding commenced under any applicable bankruptcy, insolvency or
other similar law of any jurisdiction now or hereafter in effect,
including the federal Bankruptcy Code, as from time to time amended,
or has any such proceeding commenced against it which remains
undismissed for a period of sixty days; or
(ii) commences a voluntary case under any applicable bankruptcy,
insolvency or similar law now or hereafter in effect, including the
federal Bankruptcy Code, as from time to time amended; or applies for
or consents to the entry of an order for relief in an involuntary case
under any such law; or makes a general assignment for the benefit of
creditors; or fails generally to pay (or admits in writing its
inability to pay) its debts as such debts become due; or takes
corporate or other action to authorize any of the foregoing; or
(iii) suffers the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of all or a substantial part of its assets or of any
part of the Collateral in a proceeding brought against or initiated by
it, and such appointment or taking possession is neither made
ineffective nor discharged within sixty days after the making thereof,
or such appointment or taking possession is at any time consented to,
requested by, or acquiesced to by it; or
(iv) suffers the entry against it of a final judgment for the
payment of money in excess of $100,000 with respect to Borrower or
$1,000,000 with respect to Guarantor (not covered by insurance
satisfactory to Bank One in its discretion), unless the same is
discharged within thirty days after the date of entry thereof or an
appeal or appropriate proceeding for review thereof is taken within
such period and a stay of execution pending such appeal is obtained;
or
(v) suffers a writ or warrant of attachment or any similar
process to be issued by any court against all or any substantial part
of its assets or any part of the Collateral, and such writ or warrant
of attachment or any similar process is not stayed or released within
thirty days after the entry or levy thereof or after any stay is
vacated or set aside;
(i) This Agreement, the Note or any other Loan Document shall for any
reason cease to be in full force and effect, or be declared null and void or
unenforceable in whole or in part as the result of any action initiated by
any Person other than Bank One; or the validity or enforceability of any
such document shall be challenged or denied by any Person other than Bank
One;
(j) Any default or event of default shall occur with respect to the
payment of any Indebtedness of a Related Person or Guarantor to Bank One
(other than the Obligations);
35
(k) Either (i) any "accumulated funding deficiency" (as defined in
Section 412(a) of the Code in excess of $25,000 exists with respect to any
ERISA Plan, whether or not waived by the Secretary of the Treasury or his
delegate, or (ii) any Termination Event occurs with respect to any ERISA
Plan and the then current value of such ERISA Plan's benefits guaranteed
under Title IV of ERISA exceeds the then current value of such ERISA Plan's
assets available for the payment of such benefits by more than $10,000 (or
in the case of a Termination Event involving the withdrawal of a
substantial employer, the withdrawing employer's proportionate share of
such excess exceeds such amount) or (iii) each Related Person or any ERISA
Affiliate withdraws from a multiemployer plan resulting in liability under
Title IV of ERISA of an amount in excess of $10,000;
(l) a Change of Control occurs; or
(m) any Indebtedness of Guarantor under that certain Credit Agreement
dated April 18, 1996, among Guarantor, NationsBank of Texas, N.A., as Agent, and
certain financial institutions is accelerated.
Section 8.2 DEFAULT REMEDIES. Upon the occurrence and during the
continuance of an Event of Default, Bank One may declare its Commitment to be
terminated and/or declare the entire principal and all interest accrued on the
Note to be, and the Note, together with all Obligations, shall thereupon become,
forthwith due and payable, without any presentment, demand, protest, notice of
protest and nonpayment, notice of acceleration or of intent to accelerate or
other notice of any kind, all of which hereby are expressly waived.
Notwithstanding the foregoing, if an Event of Default specified in
SUBSECTIONS 8.1(h)(i), (ii) OR (iii) above occurs with respect to Borrower, the
Commitment shall automatically and immediately terminate and the Note and all
other Obligations shall become automatically and immediately due and payable,
both as to principal and interest, without any action by Bank One and without
presentment, demand, protest, notice of protest and nonpayment, notice of
acceleration or of intent to accelerate, or any other notice of any kind, all of
which are hereby expressly waived, anything contained herein or in any Note to
the contrary notwithstanding.
ARTICLE IX
CONCERNING BANK ONE
Section 9.1 INDEMNIFICATION.
(a) Xxxxxxxx agrees to indemnify Bank One and each director, officer,
agent, attorney, employee, representative and Affiliate of Bank One (each an
"Indemnified Party"), upon demand, from and against any and all liabilities,
obligations, claims, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements (including reasonable fees of attorneys,
accountants, experts and advisors) of any kind or nature whatsoever (in this
Section 9.1 collectively called "liabilities and costs") which to any extent (in
whole or in part) may be imposed on, incurred by, or asserted against any
Indemnified Party growing out of, resulting from or in
36
any other way associated with any of the Collateral, the Loan Documents and
the transactions and events (including the enforcement or defense thereof) at
any time associated therewith or contemplated therein. THE FOREGOING
INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN
ANY WAY OR TO ANY EXTENT CAUSED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR
THEORY OF STRICT LIABILITY, OR ARE CAUSED, IN WHOLE OR PART, BY ANY NEGLIGENT
ACT OR OMISSION OF ANY KIND BY SUCH INDEMNIFIED PARTY, PROVIDED ONLY THAT
SUCH INDEMNIFIED PARTY SHALL BE NOT ENTITLED UNDER THIS SECTION TO RECEIVE
INDEMNIFICATION FOR THAT PORTION, IF ANY, OF ANY LIABILITIES AND COSTS WHICH
IS PROXIMATELY CAUSED BY ITS OWN INDIVIDUAL GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT. If any Person (including each Related Person or any of its
Affiliates) ever alleges such gross negligence or willful misconduct by an
Indemnified Party, the indemnification provided for in this section shall
nonetheless be paid upon demand, subject to later adjustment or
reimbursement, until such time as a court of competent jurisdiction enters a
final judgment as to the extent and effect of the alleged gross negligence or
willful misconduct.
(b) Promptly after receipt by an Indemnified Party of notice of any claim,
action or proceeding with respect to which an Indemnified Party is entitled to
indemnification hereunder, such Indemnified Party will notify Borrower of such
claim or the commencement of such action or proceeding, provided that the
failure of an Indemnified Party to give notice as provided herein shall not
relieve each Related Person of its obligations under this SECTION 9.1 with
respect to such Indemnified Party, except to the extent that each Related Person
is actually prejudiced by such action or proceeding, and will employ counsel
reasonably satisfactory to the Indemnified Party and will pay the reasonable
fees and expenses of such counsel. Notwithstanding the preceding sentence, the
Indemnified Party will be entitled, at the expense of each Related Person, to
employ counsel separate from counsel for each Related Person and for any other
party in such action if the Indemnified Party reasonably determines that a
conflict of interest or other reasonable basis exists which makes representation
by counsel chosen by each Related Person not advisable, PROVIDED that each
Related Person shall not be obligated to pay for the reasonable fees and
expenses of more than one counsel for all Indemnified Parties in respect of a
particular controversy. In the event an Indemnified Party appears as a witness
in any action or proceeding brought against each Related Person (or any of its
officers, directors, agents or employees) in which an Indemnified Party is not
named as a defendant, each Related Person agrees to reimburse such Indemnified
Party for all expenses incurred by it (including reasonable fees and expenses of
counsel) in connection with its appearing as a witness.
Section 9.2 LIMITATION OF LIABILITY. Neither Bank One nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with this Agreement.
THE FOREGOING EXCULPATION SHALL APPLY TO ANY NEGLIGENT ACT OR OMISSION OF ANY
KIND BY ANY SUCH PERSON OR ANY ACT BY SUCH PERSON FOR WHICH STRICT LIABILITY IS
IMPOSED, PROVIDED THAT SUCH PERSON SHALL BE LIABLE FOR ITS OWN INDIVIDUAL GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT.
37
ARTICLE X
MISCELLANEOUS
Section 10.1 NOTICES. Any notice or request required or permitted to be
given under or in connection with this Agreement, the Note or the other Loan
Documents (except as may otherwise be expressly required therein) shall be in
writing and shall be mailed by first class or express mail, postage prepaid, or
sent by telex, telegram, telecopy or other similar form of rapid transmission,
confirmed by mailing (by first class or express mail, postage prepaid) written
confirmation at substantially the same time as such rapid transmission, or
personally delivered to an officer of the receiving party. All such
communications shall be mailed, sent or delivered to the parties hereto at their
respective addresses as follows:
Borrower: XXXXXXX XXXXXX FINANCIAL SERVICES, INC.
00000 Xxxxx Xx.
Dallas, Texas 75243
Attention: X. Xxxxx XxXxxxx
FAX: (000) 000-0000
Telephone: (000) 000-0000
Bank One: BANK ONE, TEXAS, N.A.
0000 Xxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Corporate Lending
FAX: (000) 000-0000
Telephone: (000) 000-0000
or at such other addresses or to such individual's or department's attention as
any party may have furnished the other party in writing. Any communication so
addressed and mailed shall be deemed to be given (i) if sent by mail, on the
fifth day after such communication is deposited in the mail, (ii) if sent by
telecopy or other rapid transmission, when such communication is transmitted to
the appropriate number and the appropriate receipt is received or otherwise
acknowledged, and (iii) if sent by hand delivery or overnight courier, when left
at the address of the addressee addressed as provided above, except that notices
and requests given pursuant to SUBSECTION 3.4(b), Borrowing Requests, Collateral
Release Requests, and communications related thereto shall not be effective
until actually received by Bank One or Borrower, as the case may be; and any
notice so sent by rapid transmission shall be deemed to be given when receipt of
such transmission is acknowledged, and any communication so delivered in person
shall be deemed to be given when receipted for by, or actually received by, an
authorized officer of Borrower or Bank One, as the case may be.
Section 10.2 AMENDMENTS, ETC. No amendment or waiver of any provision of
this Agreement, the Security Instruments, the Note, or any other Loan Document,
nor consent to any departure by any Related Person from the terms thereof, shall
in any event be effective unless the
38
same shall be in writing and signed by Bank One, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
Section 10.3 INVALIDITY. In the event that any one or more of the
provisions contained in the Note, this Agreement or any other Loan Document
shall, for any reason, be held invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision of such document.
Section 10.4 SURVIVAL OF AGREEMENTS. All covenants and agreements herein
and in any other Loan Document not fully performed before the date hereof or the
date thereof, and all representations and warranties herein or therein, shall
survive until payment in full of the Obligations and termination of the
Commitment.
Section 10.5 RENEWAL, EXTENSION OR REARRANGEMENT. All provisions of this
Agreement and of the other Loan Documents shall apply with equal force and
effect to each and all promissory notes hereafter executed which in whole or in
part represent a renewal, extension for any period, increase or rearrangement of
any part of the Obligations originally represented by the Note or of any part of
such other Obligations.
Section 10.6 WAIVERS. No course of dealing on the part of Bank One, or
any of its officers, employees, consultants or agents, nor any failure or delay
by Bank One with respect to exercising any right, power or privilege of Bank One
under the Note, this Agreement or any other Loan Document shall operate as a
waiver thereof, except as otherwise provided in SECTION 10.2 hereof.
Section 10.7 CUMULATIVE RIGHTS. The rights and remedies of Bank One under
the Note, this Agreement, and any other Loan Document shall be cumulative, and
the exercise or partial exercise of any such right or remedy shall not preclude
the exercise of any other right or remedy.
Section 10.8 CONSTRUCTION. THIS AGREEMENT, THE NOTE AND EACH OTHER LOAN
DOCUMENT IS A CONTRACT MADE UNDER AND SHALL BE CONSTRUED, INTERPRETED AND
ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE UNITED STATES OF
AMERICA AND THE STATE OF TEXAS. TEX. REV. CIV. STAT. XXX. ART. 5069, CH. 15
(WHICH REGULATES CERTAIN REVOLVING LOAN ACCOUNTS AND REVOLVING TRIPARTY
ACCOUNTS) SHALL NOT APPLY TO THIS AGREEMENT OR THE NOTE.
Section 10.9 LIMITATION ON INTEREST. Bank One, each Related Person and
any other parties to the Loan Documents intend to contract in strict compliance
with applicable usury law from time to time in effect. In furtherance thereof
such Persons stipulate and agree that none of the terms and provisions contained
in the Loan Documents shall ever be construed to create a contract to pay, for
the use, forbearance or detention of money, interest in excess of the maximum
amount of interest permitted to be charged by applicable law from time to time
in effect. Neither each Related Person nor any present or future guarantors,
endorsers, or other Persons hereafter becoming liable for payment of any
Obligation shall ever be liable for unearned interest thereon
39
or shall ever be required to pay interest thereon in excess of the maximum
amount that may be lawfully charged under applicable law from time to time in
effect, and the provisions of this section shall control over all other
provisions of the Loan Documents which may be in conflict or apparent
conflict herewith. Bank One expressly disavows any intention to charge or
collect excessive unearned interest or finance charges in the event the
maturity of any Obligation is accelerated. If (a) the maturity of any
Obligation is accelerated for any reason, (b) any Obligation is prepaid and
as a result any amounts held to constitute interest are determined to be in
excess of the legal maximum, or (c) Bank One or any other holder of any or
all of the Obligations shall otherwise collect moneys which are determined to
constitute interest which would otherwise increase the interest on any or all
of the Obligations to an amount in excess of that permitted to be charged by
applicable law then in effect, then all such sums determined to constitute
interest in excess of such legal limit shall, without penalty, be promptly
applied to reduce the then outstanding principal of the related Obligations
or, at Bank One's or such holder's option, promptly returned to each Related
Person or the other payor thereof upon such determination. In determining
whether or not the interest paid or payable, under any specific circumstance,
exceeds the maximum amount permitted under applicable law, Bank One and each
Related Person (and any other payors thereof) shall to the greatest extent
permitted under applicable law, (i) characterize any non-principal payment as
an expense, fee or premium rather than as interest, (ii) exclude voluntary
prepayments and the effects thereof, and (iii) amortize, prorate, allocate,
and spread the total amount of interest throughout the entire contemplated
term of the instruments evidencing the Obligations in accordance with the
amounts outstanding from time to time thereunder and the maximum legal rate
of interest from time to time in effect under applicable law in order to
lawfully charge the maximum amount of interest permitted under applicable
law. In the event applicable law provides for an interest ceiling under Texas
Revised Civil Statutes Annotated article 5069-1.04, that ceiling shall be the
indicated rate ceiling.
Section 10.10 BANK ACCOUNTS; OFFSET. To secure the repayment of the
Obligations each Related Person hereby grants to Bank One and to each financial
institution which hereafter acquires a participation or other interest in the
Loan or Note (in this section called a "Participant") a security interest, a
lien, and a right of offset, each of which shall be in addition to all other
interests, liens, and rights of Bank One or Participant at common law, under the
Loan Documents, or otherwise, and each of which shall be upon and against (a)
any and all moneys, securities or other property (and the proceeds therefrom) of
any Related Person now or hereafter held or received by or in transit to Bank
One or Participant from or for the account any Related Person, whether for
safekeeping, custody pledge, transmission, collection or otherwise, (b) any and
all deposits (general or special, time or demand, provisional or final) of any
Related Person with Bank One or Participant, and (c) any other credits and
claims of any Related Person at any time existing against Bank One or
Participant, including claims under certificates of deposit. Upon the
occurrence and during the continuance of any Event of Default, each of Bank One
and Participants is hereby authorized to foreclose upon, offset, appropriate,
and apply, at any time and from time to time, without notice to Borrower, any
and all items hereinabove referred to against the Obligations then due and
payable.
Section 10.11 ASSIGNMENTS AND PARTICIPATIONS. All covenants and
agreements by or on behalf of each Related Person in the Note, this Agreement,
or any other Loan Document shall
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bind such Related Person's successors, and assigns and shall inure to the
benefit of Bank One and its successors and assigns. Each Related Person
shall not, however, have the right to assign its rights under this Agreement
or any interest herein, without the prior written consent of Bank One. In
the event that Bank One sells participations in the Note or other Obligations
of each Related Person incurred or to be incurred pursuant to this Agreement
to other lenders, each of such other lenders shall have the rights of offset
against such Obligations and similar rights or Liens to the same extent as
may be available to Bank One. If Bank One assigns any of its rights
hereunder, it shall promptly give notice thereof to each Related Person;
provided, however, that failure to give such notice shall not render Bank One
liable to each Related Person and shall not affect each Related Person's
Obligations or the rights and remedies of Bank One hereunder. Bank One may
disclose information (including, without limitation, information identified
to it in writing as confidential information) regarding each Related Person,
the Affiliates of each Related Person, and the transactions contemplated by
this Agreement, to participants and prospective participants, in the
Obligations; provided, that Bank One shall not make any such confidential
information available to any such participant or prospective participant
without first securing from such Person a written agreement to maintain all
such confidential information in confidence.
Section 10.12 EXHIBITS. The exhibits attached to this Agreement are
incorporated herein and shall be considered a part of this Agreement for the
purposes stated herein, except that in the event of any conflict between any of
the provisions of such exhibits and the provisions of this Agreement, the
provisions of this Agreement shall prevail.
Section 10.13 TITLES OF ARTICLES, SECTIONS AND SUBSECTIONS. All titles or
headings to articles, sections, subsections or other divisions of this Agreement
or the exhibits hereto are only for the convenience of the parties and shall not
be construed to have any effect or meaning with respect to the other content of
such articles, sections, subsections or other divisions, such other content
being controlling as to the agreement between the parties hereto.
Section 10.14 COUNTERPARTS. This Agreement may be executed in
counterparts, and it shall not be necessary that the signatures of both of the
parties hereto be contained on any one counterpart hereof; each counterpart
shall be deemed an original, but all counterparts together shall constitute one
and the same instrument.
Section 10.15 ENTIRE AGREEMENT. THE NOTE, THIS AGREEMENT, AND THE OTHER
LOAN DOCUMENTS EXECUTED AND DELIVERED AS OF EVEN DATE HEREWITH REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES HERETO AND THERETO AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
Section 10.16 TERMINATION; LIMITED SURVIVAL. In its sole and absolute
discretion Borrower may at any time that no Obligations are owing elect in a
notice delivered to Bank One to terminate this Agreement. Upon receipt by Bank
One of such a notice, if no Obligations are then owing, this Agreement
(including but not limited to the power of attorney granted under Section 3.3
41
hereof) and all other Loan Documents shall thereupon be terminated and the
parties thereto released from all prospective obligations thereunder.
Notwithstanding the foregoing or anything herein to the contrary, any waivers or
admissions made by any Person in any Loan Documents, any Obligations, and any
obligations which any Person may have to indemnify or compensate Bank One shall
survive any termination of this Agreement or any other Loan Document. At the
request and expense of Borrower, Bank One shall prepare and execute all
necessary instruments to reflect and effect such termination of the Loan
Documents.
Section 10.17 JOINT AND SEVERAL LIABILITY. All Obligations which are
incurred by two or more Related Persons shall be their joint and several
obligations and liabilities.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed as of the date first above written.
BORROWER: XXXXXXX XXXXXX FINANCIAL SERVICES, INC.
By: /s/ X. XXXXX XXXXXXX
------------------------------------
Name: X. Xxxxx XxXxxxx
Title: President
BANK ONE: BANK ONE, TEXAS, N.A.
By: /s/ XXXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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