Exhibit 10.1
Execution Copy
LOAN AND SECURITY AGREEMENT
dated as of
December 11, 2002
By and Among
GREAT LAKES CAPITAL ACCEPTANCE LLC
and
GREAT LAKES FUNDING I, LLC,
as Borrowers,
and
TEXTRON FINANCIAL CORPORATION,
as Lender
****
TABLE OF CONTENTS
SECTION HEADING PAGE #
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1. DEFINITIONS. ................................................................1
1.1. Certain Defined Terms ................................................1
1.2. Other Definitional Provisions and Construction ......................15
2. THE LOAN AND TERMS OF REPAYMENT. ...........................................16
2.1. The Loan and Borrowing Base .........................................16
2.2. Provisions Aplicable to the Loan ....................................17
2.3. Pending defaults ....................................................17
2.4. Reserves ............................................................l7
2.5. Advance Request .....................................................17
3. FEES, AUDITS, PREPAYMENTS. .................................................18
3.1. Fees ................................................................18
3.2. Broker's and Finder's Fees ..........................................18
3.3. Collateral Audits, Appraisals .......................................18
3.4. Termination Fee .....................................................18
3.5. Prepayment and Prepayment Notice ....................................19
3.6. Mandatory Prepayment or Reduction ...................................20
3.7. Guarantors ..........................................................21
3.8. Additional Security .................................................21
4. SECURITY AGREEMENT. ........................................................21
4.1. Grant of Security Interest ..........................................21
4.2. Dominion of Funds Agreements and Collection of Receivables ..........21
4.3. Dominion of Funds ...................................................22
4.4. No Duty .............................................................22
4.5. Financing Statements; Control Agreements; After-Acquired Property ...22
4.6. Lender's Appointment as Attorney in-Fact ............................23
4.7. Right to Inspect ....................................................24
4.8. Control Agreements ..................................................24
4.9. Delivery and Delivery of Collateral to Effect Sale ..................25
4.10. Release Upon Payment ................................................25
5. CONDITIONS PRECEDENT. ......................................................25
5.1. Conditions Precedent to Initial Advance .............................25
5.2. Conditions Precedent to Subsequent Advances .........................26
6. WARRANTIES AND REPRESENTATIONS. ............................................26
6.1. Organization and Authority ..........................................26
6.2. Borrowing is Legal and Authorized ...................................27
6.3. Margin Loans and Purchase of Ineligible Securities ..................27
6.4. Taxes ...............................................................28
6.5. Compliance with Law .................................................28
6.6. Financial Statements; Full Disclosure ...............................28
6.7. Litigation, Adverse Effects .........................................29
6.8. Labor Matters .......................................................29
6.9. Solvency ............................................................29
6.10. Government Consent ..................................................29
6.11. No Liens ............................................................29
6.12. Indebtedness ........................................................30
6.13. No Defaults .........................................................30
6.14. Environmental Protection ............................................30
6.15. Regarding the Financial Assets and Locations ........................30
6.16. Intellectual Property ...............................................31
7. AFFIRMATIVE AND NEGATIVE COVENANTS. ........................................31
7.1. Payment of Taxes and Claims .........................................31
7.2. Collateral Insurance ................................................31
7.3. Place of Business; Books and Records ................................32
7.4. Maintenance; Collateral Covenants ...................................32
7.5. Environmental Compliance ............................................34
7.6. Average/Weighted Loan Basis .........................................34
7.7. Management ..........................................................34
7.8. Restriction on Fundamental Changes; Conduct of Business .............34
7.9. Sale of Assets ......................................................35
7.10. Negative Pledge .....................................................35
7.1l. Indebtedness ........................................................35
7.12. Contingent Obligations ..............................................35
7.13. Restricted Payments .................................................36
7.14. Loans and Advances, Investments .....................................36
7.15. Non-Qualified Sellers; Restriction on Certain Assets ................36
7.16. Transactions With Affiliates ........................................37
7.17. Maintenance of Deposit Accounts .....................................37
7.18. Modification of Accounts Receivable .................................37
7.19. Prepayment and Amendments of Indebtedness ...........................37
7.20. Restrictions on Parent Company ......................................38
7.21. Financial Covenants .................................................38
8. FINANCIAL INFORMATION AND REPORTING. .......................................39
9. DEFAULT. ...................................................................42
9.1. Events of Default ...................................................42
9.2. Default Remedies ....................................................43
10. GENERAL PROVISIONS. .......................................................44
10.1. Notices .............................................................44
10.2. Access to Accountants ...............................................44
10.3. Costs and Expenses ..................................................44
10.4. Survival, Successors and Assigns ....................................45
10.5. Amendment and Waiver, Duplicate Originals ...........................45
10.6. Accounting Treatment and Fiscal Year ................................45
10.7. Enforceability and Governing Law ....................................45
10.8. Confidentiality .....................................................46
10.9. Effective Date ......................................................46
10.10. Section Headings, Interpretations and Severability ..................46
10.11. Counterparts; Facsimile Execution ...................................47
10.12. Revival and Reinstatement of Obligations ............................47
10.13. Integration .........................................................47
10.14. Waiver of Right to Trial by Jury ....................................47
10.15. No Consequential Damages ............................................48
10.16. Indemnity ...........................................................48
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Exhibits and Schedules
Exhibit B - Bailee Letter
Exhibit C - Revolving Note
Exhibit D - Advance Request and Borrowing Base Certificate
Schedule 1.1(a) - Mortgage File
Schedule 1.1(b) - Permitted Liens
Schedule 5.1 - Conditions Precedent to Initial Advance
Schedule 6.1 - Organizational Structure
Schedule 6.4 - Taxes
Schedule 6.7 - Pending or Threatened Claims
Schedule 6.8 - Labor Matters
Schedule 6.12 - Indebtedness
Schedule 6.15 - Business and Collateral Locations
Schedule 6.16 - Intellectual Property
Schedule 7.17 - Deposit Accounts
Schedule 9.1(n) - Post Closing Matters
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LOAN AND SECURITY AGREEMENT
This Loan and Security Agreement (this "Agreement") is entered into at
Columbus, Ohio, between Textron Financial Corporation, with a place of business
at 000 X. Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxx 00000 (together with its
successors, "Lender"), Great Lakes Capital Acceptance LLC, an Illinois limited
liability company ("GLCA"), and Great Lakes Funding I, LLC, an Illinois limited
liability company ("GL Funding"), each with its principal place of business at
00 Xxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, as of the 11th day
of December, 2002.
1. Definitions.
1.1. Certain Defined Terms.
In addition to the terms defined above, the following terms used in this
Agreement, the promissory note or other Loan Documents (as defined below)
executed in connection herewith shall have the following meanings, applicable
both to the singular and the plural forms of the terms defined. As used in this
Agreement:
"Account Debtor" means a Person obligated to a Borrower pursuant to a promissory
note, loan or Financial Asset owned by a Borrower.
"Accounts" means all now owned or hereafter acquired right, title and interest
in all "accounts" (as defined in the UCC) and accounts receivable, and any and
all supporting obligations in respect of any of the foregoing.
"Adjusted Tangible Net Worth" means, at the time of each determination, such
Person's shareholders' or members' equity plus the principal amount of such
Person's Subordinated Debt, minus the sum of all of the following: (i) the
excess of cost over the value of net assets of purchased businesses, rights, and
other similar intangibles, (ii) organizational expenses, (iii) intangible assets
(to the extent not reflected in the foregoing), (iv) goodwill, (v) deferred
expenses, deferred charges or deferred financing costs other than the initial
nonrefundable fee paid to Lender pursuant to Section 3.1(a) below and broker's
fees, if any, incurred in connection with this Agreement, **** (vi) loans or
advances to and/or accounts or notes receivable from Affiliates not wholly owned
by such Person, (vii) non-compete agreements, (viii) any surplus resulting from
any write-up of assets, and (ix) any other asset not directly related to the
operation of the business of such Person.
"Advisor" is defined in Section 7.22.
"Affiliate" means, as applied to any Person, any other Person who, directly or
indirectly, controls, is controlled by, or is under common control with, such
Person, or is a family member related by birth or marriage. For purposes of this
definition, "control" means the possession, directly or indirectly, of the power
to direct the management and policies of a Person, whether through the ownership
of equity interests, by contract, or otherwise; provided, however, that, in any
event: (a) any Person which owns directly or indirectly five percent (5%) or
more of the securities having ordinary voting power for the election of
directors or other members of the governing body of a Person or five percent
(5%) or more of the partnership, member or other
ownership interests of a Person (other than as a limited partner of such
Person) shall be deemed to control such Person; (b) each director (or manager)
of a Person shall be deemed to be an Affiliate of such Person; and (c) each
partnership or joint venture in which a Person is a partner or joint venturer
shall be deemed to be an Affiliate of such Person.
"Agreement" means this Loan and Security Agreement.
****
"Attendant Collateral Documents" is defined in Section 4.5
"Bailee Letter" means a letter substantially similar to the agreement attached
hereto as Exhibit B.
"Base Rate Margin" means two percent (2%) per annum
"Bankruptcy Code" means Title 11 of the United States Code (11 USC, (S) 101 et
seq), as amended from time to time, and any successor statute thereto, including
(unless the context requires otherwise), any rules or regulations promulgated
thereunder.
"Base Rate" ****
"Borrower" means (i) in the singular, GLCA and GL Funding, each in its own
separate capacity, and (ii) in the plural collectively GLCA and GL Funding,
together with their successors and assigns.
"Borrowing Base" in respect of any Borrower means, as of the date of
determination, an amount up to **** of the Loan Basis of such Borrower's
Eligible Financial Assets.
"Borrowing Base Collateral" means all instruments, notes, agreements and
documents evidencing the underlying debt obligations relating to the Eligible
Financial Assets.
"Business Day" means any day that is not a Saturday, Sunday, or other day on
which national banks are authorized or required to close.
"Capital Expenditures" ****
"Capital Lease" means a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP.
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"Cash Collateral Account" means a cash collateral account maintained at a
deposit bank satisfactory to Lender for the purpose of collecting any Borrower's
Financial Assets, proceeds thereof and proceeds of other Collateral, with
respect to which Lender has the sole power of withdrawal.
"Cash Equivalents" means (a) marketable direct obligations issued or
unconditionally guaranteed by the United States of America or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one (1) year from the date of acquisition thereof, (b)
marketable direct obligations issued by any state of the United States or any
political subdivision of any such state or any public instrumentality thereof
maturing within one (1) year from the date of acquisition thereof and, at the
time of acquisition, having the highest rating obtainable from either S&P or
Xxxxx'x, and (c) certificates of deposit or bankers' acceptances maturing within
one (1) year from the date of acquisition thereof either (i) issued by any bank
organized under the laws of the United States or any state thereof which bank
has a rating of A or A2, or better, from S&P or Xxxxx'x, or (ii) issued by any
other bank insured by the Federal Deposit Insurance Corporation ("FDIC"),
provided that such certificates of deposit are less than or equal to, in the
aggregate, the deposit insurance coverage limit set by the FDIC for single
ownership accounts.
"Change of Control" means (a) in respect of any Person the replacement of a
majority of the directors or managers who constituted the board of directors or
the managing body on the date of this Agreement for any reason other than death
or disability, and such replacement shall not have been approved by the board of
directors or managing body as constituted on the date of this Agreement; (b) a
Person or Persons acting in concert, as a result of a tender or exchange offer,
privately negotiated purchase or purchases, exercise of the stock pledge, death
of a shareholder or member or otherwise, shall have become the "beneficial
owner" (within the meaning of Rule 13d.3 and 13d.5 under the Securities Exchange
Act of 1934, as amended from time to time) of securities of any Borrower
representing more than ten percent (10%) of the combined voting power of the
outstanding securities of any Borrower ordinarily having the right to vote in
the election of directors or managers: (c) Xxxxxx Xxxxxxxx, XX fails to
beneficially own and control at least eighty percent (80%) of the voting power
of Parent Company; (d) Parent Company is not the beneficial owner of 100% of the
ownership and voting control of GLCA; or (e) GLCA fails to directly own and
control 100% of the outstanding equity interests of its Subsidiaries.
"Closing Date" means the date of the making of the initial advance hereunder.
"Collateral" means all now owned or hereafter acquired right, title and interest
in all of the Financial Assets, the Mortgage Collateral, the Accounts, the
Inventory, the Equipment, the General Intangibles, the Intellectual Property,
the Investment Property, the Deposit Accounts and Proceeds and in any property
of a Borrower in or upon which a security interest, Lien deed of trust or
mortgage is granted to Lender, whether under this Agreement, any security
agreement or under any of the other Loan Documents.
"Consumer Finance Laws" means all applicable federal, state and local laws,
regulations or ordinances, relating to the extension or repayment of consumer
credit, the maintenance or servicing of consumer credit accounts or records, or
the creation of a security interest in personal property or a mortgage in real
property in connection with a consumer credit account, as the case may be, and
laws or regulations with respect to the disclosure of or the protection of
consumers' interests in connection with such transactions, including without
limitation, any interest rate disclosure and limitation laws or regulations, the
Federal Consumer Credit Protection Act, the Federal Fair Credit Reporting Act,
the Federal Fair Debt Collection Practices Act, the Home
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Mortgage Disclosure Act, the Real Estate Settlement Procedures Act, the Federal
Equal Credit Opportunity Act, the Xxxxxxxx-Xxxx Warranty Act, the Federal Trade
Commission's Rules and Regulations, the Right to Financial Privacy Act, the
Federal Truth in Lending Act, the Home Ownership and Equity Protection Act, the
Federal Reserve Board's Rules and Regulations regarding consumer credit
accounts, and all similar state or local laws, regulations or ordinances, as any
of the foregoing may be amended from time to time.
"Consumer Purpose Loans" means (a) loans to one or more individuals secured by
residential real estate, (b) loans to one or more individuals secured by goods
or merchandise for personal, household or family use, or (c) unsecured loans to
one or more individuals for personal, household or family use.
"Contingent Obligations" means any agreement, undertaking or arrangement by
which any Person assumes, guaranties, endorses, agrees to provide funding, or
otherwise becomes or is contingently liable upon the obligation or liability of
any other Person.
"Contra" means any Financial Asset that is subject to any credit, contra
account, allowance, adjustment, return of goods, or discount.
"Control" means the power, directly or indirectly, to vote five percent (5%) or
more of the securities, units or other measures having ordinary voting power for
the election of directors, managers, management committees, or similar
committees of such Person, or the power to direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Controlled Group" means the group consisting of (i) any corporation which is a
member of the same controlled group of corporations (within the meaning of
Section 414(b) of the Internal Revenue Code, 26 U.S.C., as amended from time to
time) as Parent Company; (ii) a partnership or other trade or business (whether
or not incorporated) which is under common control (within in the meaning of
Section 414(c) of the Internal Revenue Code, 26 U.S.C., as amended from time to
time) with Parent Company; and (iii) a member of the same affiliated service
group (within in the meaning of Section 414(m) of the Internal Revenue Code, 26
U.S.C., as amended from time to time) as Parent Company, any corporation
described in clause (i) above or any partnership or trade or business described
in clause (ii) above.
"Custodial Agent" means U.S. Bank National Association or any successor,
collateral agent or custodian under any Custodial Agreement, Collateral Agency
Agreement or similar agreement entered into from time to time, between and among
such Custodial Agent, Lender and any Borrower.
"Custodial Agreement" means that certain Collateral Agency Custodial Agreement
among the Borrowers, Lender and the Custodial Agent, as amended, modified,
restated or supplemented from time to time.
"Default Rate" means an interest rate per annum equal to the Base Rate, plus the
Base Rate Margin, ****
"Depreciation and Amortization" means depreciation, amortization, expenses and
other non-cash charges which were deducted in determining Net Income for such
period.
"Deposit Accounts" means "deposit accounts" (as defined in the UCC), all deposit
accounts, whether general, special, time, demand, provisional, or final, all
cash or monies wherever located,
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any and all deposits or other sums at any time due to such Person, which now or
hereafter are at any time in the possession or control of Lender or in the
possession of any third party acting in Lender's behalf, without regard to
whether Lender received the same in pledge for safekeeping, as agent for
collection or transmission or otherwise, or whether Lender has conditionally
released the same.
"Designated Prepayment" is defined in Section 3.6 (f).
"Dominion of Funds Agreements" is defined in Section 4.2.
"EBITDA" means for any period, the sum of the amounts for such period of (a) Net
Income, (b) Interest Expense, (c) Income Tax Expense and (d) Depreciation and
Amortization.
"Eligible Financial Assets" means, ****
****
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****
****
****
****
****
****
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****
****
****
****
****
****
****
****
****
****
"Environmental Actions" means any complaint, summons, citation, notice,
directive, order, claim, litigation, investigation, judicial or administrative
proceeding, judgment, letter, or other communication from any Governmental
Authority, or any third party involving violations of Environmental Laws or
releases of Hazardous Materials from (a) any assets, properties, or businesses
of any Borrower or any predecessor in interest, (b) from adjoining properties or
businesses, or (c) from or onto any facilities which received Hazardous
Materials generated by any Borrower or any predecessor in interest.
"Environmental Law" means any applicable federal, state, provincial, foreign or
local statute, law, rule, regulation, ordinance, code, binding and enforceable
guideline, binding and enforceable written policy or rule of common law now or
hereafter in effect and in each case as amended, or
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any judicial or administrative interpretation thereof, including any judicial or
administrative order, consent degree or judgment, to the extent binding on any
Borrower, relating to the environment, employee health and safety, or Hazardous
Materials, including, the Comprehensive Environmental Response, Compensation and
Liability Act, 42 USC, (S)9601 et seq; the Resource Conservation and Recovery
Act, 42 USC, (S)9601 et seq; the Federal Water Pollution Control Act, 33 USC
(S)1251 et seq; the Toxic Substances Xxxxxxx Xxx, 00 XXX, (X)0000 et seq; the
Clean Air Act, 42 USC (S)7401 et seq; the Safe Drinking Water Act, 42 USC
(S)3803 et seq.; the Oil Pollution Act of 1990, 33 USC (S)2701 et seq; the
Emergency Planning and the Community Right-to-Know Act of 1986, 42 USC (S)11001
et seq; the Hazardous Material Transportation Act, 49 USC (S)1801 et seq; and
the Occupational Safety and Health Act, 29 USC (S)651 et seq.; (to the extent it
regulates occupational exposure to Hazardous Materials); any state and local or
foreign counterparts or equivalents, in each case as amended from time to time.
"Environmental Liabilities and Costs" means all liabilities, monetary
obligations, remedial actions, losses, damages, punitive damages, consequential
damages, treble damages, costs and expenses (including all reasonable fees,
disbursements and expenses of counsel, experts, or consultants, and costs of
investigation and feasibility studies), fines, penalties, sanctions, and
interest incurred as a result of any claim or demand by any Governmental
Authority or any third party, and which relate to any Environmental Action.
"Environmental Lien" means any Lien in favor of any Governmental Authority for
Environmental Liabilities and Costs.
"Equipment" means all now owned or hereafter acquired right, title and interest
in equipment, machinery, machine tools, motors, furniture, furnishings,
fixtures, data processing and office equipment, assembly systems, tools, parts,
goods (other than Inventory), molds, dies, motor vehicles, vehicles, vessels,
aircraft, aircraft engines, and any and all attachments, accessions,
accessories, replacements, appurtenances, substitutions, additions and
improvements to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute thereto, including without
limitation (unless the context otherwise requires) any rules or regulations
promulgated thereunder.
"ERISA Affiliate" means (a) any Person subject to ERISA whose employees are
treated as employed by the same employer as the employees of any Borrower under
IRC Section 414(b) (as amended from time to time), (b) any trade or business
subject to ERISA whose employees are treated as employed by the same employer as
the employees of any Borrower under IRC Section 414(c) (as amended from time to
time), (c) solely for purposes of Section 302 of ERISA and Section 412 of the
IRC, any organization subject to ERISA that is a member of an affiliated service
group of which a Borrower is a member under IRC Section 414(m) (as amended from
time to time), or (d) solely for purposes of Section 302 of ERISA and Section
412 of the IRC, any Person subject to ERISA that is a party to an arrangement
with a Borrower and whose employees are aggregated with the employees of a
Borrower under IRC Section 414(o) (as amended from time to time).
"Event of Default" means an event described in Section 9.1.
"Financial Asset" means any asset of a Borrower consisting of: (a) Consumer
Purpose Loans secured by first lien or second lien mortgages on residential Real
Property; (b) Personal Property Secured Loans; (c) Non-Performing Foreclosure
Loans; (d) chattel paper, leases, installment sale
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contracts, Accounts, promissory notes, instruments, payment intangibles or
General Intangibles; or (e) any commercial loans.
"Financial Officer" means the Chief executive officer or Chief financial officer
of any Borrower.
"GAAP" means generally accepted accounting principles set forth in the opinions
and pronouncements of the Accounting Principles Board, the American Institute of
Certified Public Accountants and the Financial Accounting Standards Board as in
effect from time to time the United States consistently applied.
"General Intangibles" means all now owned or hereafter acquired right, title and
interest in "general intangibles" (as defined in the UCC), payment intangibles,
contract rights, rights to payment, rights arising under common law, statutes,
or regulations, income and other tax refunds, proceeds of insurance, eminent
domain and condemnation awards, choses in action, commercial tort claims,
preference recoveries and all claims in respect of transfers of any kind, all
transfers by states and governmental units of states, letter of credit rights,
proceeds of letters of credit, franchise rights, installment contracts,
Intellectual Property, chattel paper, electronic chattel paper, instruments,
promissory notes, property securing rights to payment, negotiable documents,
notes, drafts, acceptances and other forms of obligations, all books, records,
ledger cards, computer programs, and other documents or property relating to any
of the foregoing or to Accounts or Inventory, and all supporting obligations of
any of the foregoing.
"Governmental Authority" means any nation or government, any federal, state,
local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative authority or
functions of or pertaining to government, including any authority or other
quasi-governmental entity established to perform any of such functions.
"Guarantors" means any Person which executes and delivers to Lender a Guaranty,
including without limitation, Xxxxxx Xxxxxxxx, XX and Parent Company.
"Guaranty" means each of those certain guaranty agreements executed from time to
time by any Guarantor in favor of Lender, as amended, restated, supplemented or
otherwise modified from time to time, in form acceptable to Lender.
"Hazardous Materials" means (a) substances that are defined or listed in, or
otherwise classified pursuant to, any applicable laws or regulations as
"hazardous substances," "hazardous materials," "hazardous wastes," "toxic
substances," or any other formulation intended to define, list, or classify
substances by reason of deleterious properties such as ignitability,
corrosivity, reactivity, carcinogenicity, reproductive toxicity, or "EP
toxicity," (b) oil, petroleum, or petroleum derived substances, natural gas,
natural gas liquids, synthetic gas, drilling fluids, produced waters, and other
wastes associated with the exploration, development, or production of crude oil,
natural gas, or geothermal resources, (c) any flammable substances or explosives
or any radioactive materials, and (d) asbestos in any form or electrical
equipment that contains any oil or dielectric fluid containing levels of
polychlorinated biphenyls in excess of fifty (50) parts per million.
"Income Tax Expense" means, for any period, all federal, state, local and
foreign income taxes of such Person (whether paid or deferred).
"Indebtedness" means, at any time, (a) all indebtedness, obligations or other
liabilities (other than accounts payable arising in the ordinary course of
business payable on terms customary in the trade) which in accordance with GAAP
should be classified as liabilities on the balance sheet
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of such Person, including, without limitation (i) for borrowed money or
evidenced by debt securities, debentures, acceptances, notes or other similar
instruments, and any accrued interest, fees and charges relating thereto, (ii)
under profit payment agreements or in respect of obligations to redeem,
repurchase or exchange any securities or to pay dividends in respect of any
stock, (iii) with respect to letters of credit, bankers acceptances, interest
rate swaps or other contracts, currency agreement or other financial products,
(iv) to pay the deferred purchase price of property or services, or (v) in
respect of Capital Leases; (b) all indebtedness, obligations or other
liabilities secured by a lien on any property, whether or not such indebtedness,
obligations or liabilities are assumed by the owner of the same; and (c) all
Contingent Obligations.
"Insolvency Proceeding" means any proceeding commenced by or against any Person
under any provision of the Bankruptcy Code or under any other state or federal
bankruptcy or insolvency law, receivership, assignment for the benefit of
creditors, formal or informal moratorium, composition, extension generally with
creditors, or proceedings seeking reorganization, arrangement, or other similar
relief.
"Intellectual Property" means all now owned or hereafter acquired right, title
and interest in trade names, trademarks, trade secrets, service marks, data
bases, software and software systems, including the source and object codes,
information systems, discs, tapes, customer lists, telephone numbers, credit
memoranda, goodwill, patents, patent applications, patents pending, copyrights,
royalties, literary rights, licenses and franchises.
"Interest Coverage Ratio" is defined in Section in 7.21 below.
"Interest Expense" means, for any period, as determined in conformity with GAAP,
total interest expense, whether paid or accrued or due (including without
limitation in respect of the Loan and the Subordinated Debt) and payable,
including without limitation the interest component of Capital Lease obligations
for such period, all bank fees, and net costs under interest rate contracts.
"Interest Payment Date" means the first Business Day of each month.
"Inventory" means all now owned or hereafter acquired right, title and interest
in "inventory" (as defined in the UCC) and goods, goods in transit, goods held
for sale or lease, or to be furnished under any contract of service, raw
materials, work in process or supplies, and all materials used or consumed in
the business of any Borrower, and any property the sale or other disposition of
which has given rise to Accounts and which has been returned to or repossessed
or stopped in transit.
"Investment" means any loan, advance, extension of credit, deposit account,
contribution of capital or transfer of any assets to any Person or any
investment in, or purchase or other acquisition of, the stock, partnership
interests, ownership interests in any limited liability company, notes,
debentures, or other securities of any other Person; provided that Investments
shall not include accounts receivable arising in the ordinary course of business
on customary trade terms and the purchase of Financial Assets in the ordinary
course of business.
"Investment Property" means all now owned or hereafter acquired right, title and
interest in "investment property" (as defined in the UCC), including without
limitation, securities, whether certificated or uncertificated, securities
entitlements, securities accounts, commodities contracts and commodities
accounts and all supporting obligations of any of the foregoing.
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"IRC" means the Internal Revenue Code, as amended from time to time, and any
successor statute thereto, including (unless the context requires otherwise) any
rules or regulations promulgated thereunder.
"Lender" is defined in the preamble.
"Lender's Account" is defined in Section 4.3.
"Lien" means any interest in an asset securing an obligation owed to, or a claim
by, any Person other than the owner of the asset, whether such interest shall be
based on the common law, statute, or contract, whether such interest shall be
recorded or perfected, and whether such interest shall be contingent upon the
occurrence of some future event or events or the existence of some future
circumstance or circumstances, including the lien or security interest arising
from a mortgage, deed of trust, encumbrance, pledge, hypothecation, assignment,
collateral assignment, deposit arrangement, security agreement, conditional sale
or trust receipt, or from a lease consignment, or bailment for security purposes
and also including reservations, exceptions, encroachments, easements,
rights-of-way, covenants, conditions, restrictions, leases, and other title
exceptions and encumbrances affecting Real Property.
"License" is defined in Section 7.22.
"Loan Documents" means this Agreement, the promissory note or notes, the
Custodial Agreement, assignment of life insurance, blocked account agreements,
the Guaranties, any cash management agreements, subordination and intercreditor
agreements, deposit account control agreements. Attendant Collateral Documents,
collateral assignments, pledge agreements, security agreements, mortgages, deeds
of trusts and collateral agreements executed in connection with this Agreement,
and all other documents, instruments and agreements executed in connection
therewith or contemplated thereby, as the same may be amended, restated or
otherwise modified and in effect from time to time.
"Loan Party" means each of the Borrowers and the Guarantors.
"Loan" is defined in Section 2.
"Loan Basis" with respect to any Financial Asset means the cost basis of amounts
paid in cash for such asset by any Borrower, minus principal payments made after
the acquisition of such asset, minus amortization permitted or required under
GAAP, and shall not include unearned interest, commissions, discounts, dealer
reserves, fees and like items.
"Material Adverse Effect" means, at any time, a material adverse effect upon (i)
the business condition (financial or otherwise), operations, performance,
properties or prospects of any Borrower, (ii) the ability of any Borrower to
perform its respective obligations under this Agreement, any Loan Document or
any document, agreement, guaranty, or instrument executed in connection
herewith, or (iii) the ability of Lender to enforce the terms of this Agreement,
or any document, agreement, guaranty, or instrument executed in connection
herewith.
"Mortgage Collateral" means:
(a) All private mortgage insurance related to the Financial Assets; all personal
property, contract rights, servicing and servicing fees and income or other
proceeds, amounts and payments payable to Borrowers as compensation or
reimbursement, accounts and general intangibles of whatsoever kind relating to
the Financial Assets and all other documents or instruments relating
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to the Financial Assets, including, without limitation, any interest of
Borrowers in any fire, casualty or hazard insurance policies and any awards made
by any public body or decreed by any court of competent jurisdiction for taking
or for degradation of value in any eminent domain proceeding as the same relate
to the Financial Assets;
(b) All right, title and interest of Borrowers in and to all escrow accounts,
documents, instruments, files, surveys, certificates, correspondence,
appraisals, computer programs, tapes, discs, cards, accounting records
(including all information, records, tapes, data, programs, discs and cards
necessary or helpful in the administration or servicing of the foregoing
Mortgage Collateral) and other information and data of Borrowers relating to the
foregoing Mortgage Collateral;
(c) All servicing contracts for the rights to service the Financial Assets now
owned or hereafter created or acquired by any Borrower;
(d) All rights of Borrowers to receive payments under or by virtue of the
servicing contracts described in the definition of Mortgage Collateral and the
acknowledgment agreements, whether as servicing fees, servicing income, damages,
amounts payable upon the cancellation or termination of any such servicing
contact, interest on the foregoing, or otherwise; and
(e) Any agreement pursuant to which any servicing contract described in this
definition of Mortgage Collateral (without giving effect to this proviso at the
end hereof) was acquired or is sold by Borrowers, and all documents executed or
delivered in connection with any such acquisition or sale.
"Mortgage File" means, with respect to each Financial Asset, those documents
and items listed in Schedule 1.1 (a) attached hereto.
"Net Cash Proceeds" means (1) proceeds received in cash or Cash Equivalents from
the sale (including, without limitation, any sale and leaseback), assignment or
other disposition of any property, net of (A) the reasonable cash costs of
sale, assignment or other disposition and (B) the amount of any Indebtedness
secured by such property permitted by this Agreement; provided that evidence of
each of (A) and (B) are provided to Lender; (ii) proceeds of insurance on
account of the loss of or damage to any property of such Person, and payments of
compensation for any property taken by condemnation or eminent domain; and (iii)
proceeds received in cash or Cash Equivalents from (A) the issuance of any
capital stock by such Person, or any other additions to the equity of such
Person (other than retained earnings) or any contributions to capital of a
Borrower or (B) issuance of any Indebtedness by such Person net of reasonable
costs incurred in connection with such transaction, provided that evidence of
such costs is provided to Lender.
"Net Income" means, for any period, the net income (or loss) after taxes for
such period taken as a single accounting period, determined in conformity with
GAAP.
"Non-Performing Foreclosure Loan" means any Consumer Purpose Loan (i) which
meets all of the requirements of an Eligible Financial Asset (other than clause
(i) or (ii) of those Financial Assets not eligible), (ii) which is secured by a
perfected first mortgage lien on residential Real Property, and (iii) in respect
of which a Borrower has instituted and is diligently pursuing relief from stay
proceedings, if applicable, and foreclosure proceedings against such Real
Property **** of such Financial Asset.
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"Obligations" means the Loan, and all advances, Indebtedness, debts, principal,
interest (including without limitation any interest that but for the provision
of the Bankruptcy Code would have accrued), Contingent Obligations, obligations,
fees, charges, costs, expenses, indemnification obligations, lease payments,
liabilities, owing, or due or payable by any Borrower to Lender of any kind or
nature, present or future, whether or not evidenced by any promissory note,
note, draft, letter of credit, guaranty, instrument or document and whether
arising under this Agreement or any of the other Loan Documents or otherwise,
whether direct or indirect, acquired by assignment or otherwise, absolute or
contingent, liquidated or unliquidated, due or to become due, now existing or
arising hereafter and however acquired or incurred (including principal,
interest, late charges, collection costs, attorneys' fees and other amounts
chargeable under this Agreement or under any other Loan Document), and any and
all amendments, extensions, modifications, supplements, renewals of or
substitutes thereto, thereof and therefor, both prior to and subsequent to any
Insolvency Proceeding.
"Parent Company" means Great Lakes Capital Investments, Inc., an Illinois
corporation.
"Pending Default" is defined in Section 2.3.
"Permitted Contest" means the right of a Borrower to contest or protest any Lien
(other than any such Lien that secures the Obligations), taxes (other than
payroll taxes or taxes that are the subject of a United States federal tax
lien), or rental payment, provided that (i) a reserve with respect to such
obligation is established on such Borrower's books and records in such amount as
is required under GAAP. (ii) any such protest is instituted promptly and
prosecuted diligently by such Borrower in good faith, and (iii) Lender is
satisfied in its sole, good faith discretion, that, while any such protest is
pending, there will be no impairment of the enforceability, validity, or
priority of any of Lender's Liens.
"Permitted Dispositions" means (i) sales or other dispositions by a Borrower of
Equipment that is substantially worn, damaged, or obsolete in the ordinary
course of such Borrower's business, (ii) the use or transfer of money or Cash
Equivalents by such Borrower in a manner that is not prohibited by the terms of
this Agreement or the other Loan Documents, and (iii) the licensing by a
Borrower, on a non-exclusive basis, of patents, trademarks, copyrights, and
other intellectual property rights in the ordinary course of such Borrower's
business.
"Permitted Investments" means (i) investments in Cash Equivalents in investment
or deposit accounts subject to Lender's perfected first lien, (ii) investments
in negotiable instruments for collection, and (iii) advances made in connection
with purchases of goods or services in the ordinary course of business.
"Permitted Liens" means (i) any Liens held by Lender or Affiliates of Lender,
(ii) Liens for unpaid taxes that either are not yet delinquent, or do not
constitute an Event of Default hereunder and are the subject of a Permitted
Contest, (iii) Liens set forth on Schedule l.1(b) to the extent of the
Indebtedness referenced therein, (iv) the interests of lessors under
operating leases, (v) Liens securing purchase money Indebtedness or the
interests of lessors under Capital Leases to the extent that such Liens or
interests secure Permitted Purchase Money Indebtedness, (vi) Liens arising by
operation of law in favor of warehousemen, landlords, carriers, mechanics,
materialmen, or laborers, incurred in the ordinary course of a Borrower's
business and not in connection with the borrowing of money, and which
Liens either (A) are for sums not yet delinquent, or (B) are the subject of
Permitted Contests, (vii) Liens arising from deposits made in connection with
obtaining worker's compensation or other unemployment insurance, (viii)
Liens or deposits to secure performance of bids, tenders, or leases incurred in
the ordinary course of a
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Borrower's business and not in connection with the borrowing of money, (ix)
Liens granted as security for surety or appeal bonds in connection with
obtaining such bonds in the ordinary course of a Borrower's business, (x) Liens
resulting from any judgment or award that is not an Event of Default hereunder
and are the subject of Permitted Contests, and (xi) with respect to any Real
Property, easements, rights of way, and zoning restrictions that do not
materially interfere with or impair the use or operation thereof.
"Permitted Purchase Money Indebtedness" means secured or unsecured purchase
money Indebtedness (including obligations under Capital Leases) incurred to
finance the acquisition of fixed assets or equipment, if such Indebtedness (i)
has a scheduled maturity and is not due on demand, (ii) does not exceed the
purchase price of the items being purchased, and (iii) is not secured by any
property or assets other than the item or items being purchased.
"Person" means any individual, corporation, firm, enterprise, partnership,
trust, incorporated or unincorporated association, joint venture, joint stock
company, limited liability company or any other entity of any kind or any
government or political subdivision or any agency, department or instrumentality
thereof.
"Personal Property Secured Loan" means a Consumer Purpose Loan secured by a
perfected first lien or security interest on personal property.
"Plan" means an employee benefit plan defined in Section 3(3) of ERISA, other
than a multi-employer plan, in respect of which Parent Company, a Borrower or
any member of the Controlled Group is, or within the immediately preceding six
(6) years was, an "employer" as defined in Section 3(5) of ERISA.
"Pledge Agreements" means those certain pledge and security agreements to be
executed by (i) the Trustee under a certain Trust Agreement Establishing Xxxxxx
Xxxxxxxx, XX Revocable Trust, by which such Person pledges to Lender all of the
outstanding capital stock of Parent Company, and (ii) Parent Company, by which
such Person pledges to Lender all of the outstanding membership interests of
GLCA, and (iii) GLCA, by which GLCA pledges to Lender all of the outstanding
membership interests of GL Funding.
"Proceeds" means "proceeds" (as defined in the UCC), all cash and non-cash
proceeds, substitutions, replacements, additions and accessions to any
Collateral, all documents, negotiable documents, documents of title, warehouse
receipts, storage receipts, dock receipts, dock warrants, express bills, freight
bills, airbills, bills of lading, and other documents relating thereto, all
products thereof, including, but not limited to, notes, drafts, checks,
instruments, insurance proceeds, indemnity proceeds, warranty and guaranty
proceeds.
"Qualified Seller" means a Seller which, at the time of the proposed
acquisition, (a) is in substantial compliance with all Requirements of Law and
Consumer Finance Laws applicable to such Seller, and (b)(i) has a net worth (as
reasonably determined by Borrowers and Lender based upon information publicly
available with respect to such Seller) of ****, or (ii) has provided a guaranty
of performance of such Seller of such loans under its contractual undertakings
with a Borrower, such guaranty having been executed by a Person who has a net
worth (as reasonably determined by Borrowers and Lender based upon information
publicly available with respect to such Seller) of ****. Additionally, the term
"Qualified Seller" shall mean any Person which upon written request of a
Borrower is approved by Lender in writing; provided, however that such approval
shall be deemed given by Lender if Lender shall
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fail to object in writing to such Seller within five (5) Business Days after
Lender receives written request for approval from a Borrower.
"Real Property" means any estate or interest in real property (including without
limitation any leasehold interest) now owned or hereafter acquired by a Person
and all improvements thereto.
"Remedial Action" means all actions taken to (i) clean up, remove, remediate,
contain, treat, monitor, assess, evaluate, or in any way address Hazardous
Materials in the indoor or outdoor environment, (ii) prevent or minimize a
release or threatened release of Hazardous Materials so they do not migrate or
endanger or threaten to endanger public health or welfare or the indoor or
outdoor environment, (iii) perform any pre-remedial studies, investigations, or
post-remedial operation and maintenance activities, or (iv) conduct any other
actions authorized by 42 USC (S)9601 et seq.
"Requirements of Law" means, as to any Person, the charter and by-laws or other
organization or governing documents of such Person, and any law, rule or
regulation, or determination of an arbitrator or a 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, including,
without limitation, the Securities Act of 1933, the Securities Exchange Act of
1934, Regulations T, U and X, ERISA, the Fair Labor Standards Act, the Worker
Adjustment and Retraining Notification Act, Americans With Disabilities Act of
1990 and any certificate of occupancy, zoning ordinance, building,
environmental or land use requirement or permit or environmental, labor,
employment, occupational safety or health law, rule or regulation.
"Reserves" means any amount as Lender may deem proper and necessary, in its sole
good faith discretion, to establish reserves for the creditworthiness of any
Account Debtor, the payment of taxes or Contingent Liabilities, customer
advances and deposits, payment of interest, fees, and expenses payable under
this Agreement or any other agreement in favor of Lender, and such other
purposes as Lender may deem appropriate.
"Restricted Payment" means (i) any dividend or other distribution, direct or
indirect, on account of any shares of any class of capital stock or similar
ownership interest of a Borrower now or hereafter outstanding, (ii) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of capital
stock or interest of a Borrower now or hereafter outstanding, (iii) any payment
made to redeem, purchase, repurchase or retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire membership
interests or units of the ownership interest of a Borrower or Parent Company now
or hereafter outstanding, and (iv) any payment or prepayment of principal,
premium, if any, or interest, fees or other charges on or with respect to, and
any redemption, purchase, retirement, defeasance, sinking fund or similar
payment and any claim to rescission with respect to, any Subordinated Debt.
"Revolving Credit Availability" means, at any particular time, the amount by
which the Revolving Credit Maximum Amount at such time exceeds the aggregate
Revolving Credit Obligations of the Borrowers outstanding at such time.
"Revolving Credit Maximum Amount" means at any particular time, the lesser of
(i) $7,000,000 and (ii) the combined Borrowing Base of the Borrowers in the
aggregate.
"Revolving Credit Obligations" means, at any particular time, the aggregate sum
of the outstanding principal amounts of the Loan.
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"Revolving Loan Maturity Date" means December 11, 2004.
"Seller" means a Person in the business of originating or buying and selling
Financial Assets from whom any Borrower purchases Financial Assets.
"Solvent" means, with respect to any Person on a particular date, that such
Person is not insolvent (as such term is defined in the Uniform Fraudulent
Transfer Act, as amended from time to time).
"Subordinated Debt" means any Indebtedness incurred by a Borrower which is
subject to a debt subordination agreement or other subordination provisions in
favor of Lender, in all respects satisfactory to Lender in its sole discretion,
and approved by Lender in writing.
"Subsidiary" of a Person means any corporation, partnership, limited liability
company or other entity in which such Person directly or indirectly owns or
controls the securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors, or appoint managers or
other persons performing similar functions.
"Total Liabilities" means, at the time of each determination, with respect to
any Person (a) all Indebtedness for borrowed money or for the deferred purchase
price of property or services, (b) any other Indebtedness which is evidenced by
a note, bond, debenture or similar instrument, (c) all obligations with respect
to any letter of credit issued for the account of such Person, (d) all
obligations in respect of acceptances issued or created for the account of such
Person, (e) Capital Lease obligations, (f) all liabilities (including lease
obligations) secured by any lien or encumbrance on any property owned by such
Person even though such Person has not assumed or otherwise become liable for
the payment thereof, (g) all obligations of such Person with respect to
interest rate protection agreements (valued at the termination value thereof
computed in accordance with a method approved by the International Swap Dealers
Association), and (h) all other obligations of any Borrower which, in accordance
with GAAP, would be classified upon a balance sheet as liabilities (except
capital stock and surplus earned).
"UCC" means the Ohio Uniform Commercial Code, as in effect from time to time;
provided, however, that, in the event that, by reason of mandatory provisions of
law, any of the attachment, perfection or priority of Lender's and Custodial
Agent's security interest in any Collateral is governed by the Uniform
Commercial Code as in effect in a jurisdiction other than the State of Ohio, the
term "UCC" shall mean the Uniform Commercial Code as in effect in such other
jurisdiction for purposes of the provisions hereof relating to such attachment,
perfection or priority and for purposes of definitions related to such
provisions.
"Voidable Transfer" is defined in Section 10.12.
1.2. Other Definitional Provisions and Construction.
(a) Any terms used in this Agreement or in any Loan Document that are
defined in the UCC shall have the meanings given such terms therein, unless
otherwise defined herein.
(b) Any accounting terms used in this Agreement or in any Loan Document and
not specifically defined herein shall be construed in accordance with the
respective meanings given to such terms under GAAP. When used herein, the term
"financial statements" shall include the notes and schedules thereto.
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(c) Unless the context of this Agreement or any other Loan Document clearly
requires otherwise, references to the plural include the singular, references to
the singular include the plural, and the term "including" is not limiting, the
words "hereof," "herein," "hereby," "hereunder," and similar terms in this
Agreement or any other Loan Document refer to this Agreement or such other Loan
Document, as the case may be, as a whole and not to any particular provision of
this Agreement or such other Loan Document, as the case may be. Any reference in
this Agreement or in the other Loan Documents to any agreement, instrument, or
document shall include all alterations, amendments, changes, extensions,
modifications, renewals, replacements, substitutions, joinders, and supplements,
thereto, and thereof as applicable. Any reference herein to any Person shall be
construed to include such Person's successors and assigns.
(d) All of the schedules and exhibits attached to this Agreement shall be
deemed incorporated herein by reference.
2. The Loan and Terms of Repayment.
Lender, subject to the terms and conditions hereof, will extend credit to
the Borrowers, jointly and severally, based on each Borrower's Borrowing Base up
to the aggregate sum of $7,000,000 (the "Loan"). The Borrowers, jointly and
severally, unconditionally promise to pay when due the principal amount of the
Loan, all unpaid interest accrued thereon and all other Obligations incurred by
it, in accordance with the terms of this Agreement and the other Loan Documents.
2.1. The Loan and Borrowing Base.
(a) The Revolving Credit Obligations of any Borrower at no time will exceed
such Borrower's Borrowing Base, and the Revolving Credit Obligations of the
Borrowers in the aggregate at no time will exceed the Revolving Credit Maximum
Amount. Lender, in its good faith discretion, reserves the right upon prior
written notice to any Borrower to increase or decrease the advance rate
percentages or the maximum amount advanced against the Eligible Financial
Assets, in each case, used in calculating the Borrowing Base.
(b) Interest shall accrue on the unpaid balance of the Loan at an interest
rate per annum equal to ****. All interest accruing on the Loan shall be due and
payable in arrears on the first (1st) Business Day of each month, beginning on
January 2, 2003.
(c) The principal sum and all obligations outstanding under the Loan shall
be due and payable in full on the earlier of the date that the Loan is due and
payable in full pursuant to the terms of this Agreement, whether by acceleration
or otherwise, or the Revolving Loan Maturity Date.
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(d) The Loan shall also be evidenced by a promissory note or by one or more
promissory notes executed in substitution therefore, substantially in the form
of Exhibit C attached hereto.
(e) The net proceeds of the Loan will be used to satisfy existing
Indebtedness of the Borrowers, to fund the purchase of Financial Assets, to
provide for working capital requirements of the Borrowers, to make Permitted
Investments and for any other lawful purpose in the business of the Borrower.
2.2. Provisions Applicable to the Loan.
(a) Upon the occurrence of any Event of Default, Lender, at its option,
may, to the extent not prohibited under applicable law: (i) increase the
applicable interest rate on all or any portion of the Loan to the Default Rate,
and (ii) add any unpaid accrued interest to principal, and such sum will bear
interest therefrom until paid at the rate provided for herein (including any
increased rate).
(b) Interest, fees and other charges hereunder each shall be calculated on
a 360 day year basis and shall be based on the actual number of days which
elapse during the interest calculation period.
(c) In no event whatsoever shall the interest rate and other charges
hereunder exceed the highest rate permissible under law which a court of
competent jurisdiction, in a final determination, shall deem applicable hereto.
In the event such a court determines that Lender has received interest or other
charges hereunder in excess of the highest rate applicable thereto, Lender shall
promptly refund such excess amount to the Borrowers, and the provisions hereof
shall be deemed amended to provide for such permissible rate.
(d) Each of the Borrowers hereby irrevocably authorizes Lender to charge
any account of any Borrower or to add to the principal balance of the Loan an
amount to effect any payment of principal, interest, fees and commissions as the
same becomes due hereunder.
2.3. Pending Defaults.
Lender shall have no obligation to advance or readvance any sums pursuant
to the Loan at any time when a set of facts or circumstances exists, which, upon
the giving of notice, the lapse of time, or both, would constitute an Event of
Default under this Agreement (a "Pending Default").
2.4. Reserves.
Lender reserves the right to deduct from Revolving Credit Availability or
any advances to be made hereunder any Reserves.
2.5. Advance Request.
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Subject to the provisions of this Agreement, a Borrower may elect to
request an advance by giving notice thereof to Lender in writing in form set
forth in Exhibit D not later than 10:00 a.m., Columbus, Ohio time, two (2)
Business Days prior to the date any such advance is to be effective.
3. Fees, Audits, Prepayments.
3.1. Fees.
The Borrowers, jointly and severally, will pay to Lender:
(a) on the Closing Date, ****
(b) on each anniversary of the Agreement, ****.
3.2. Broker's and Finder's Fees.
The parties hereto agree that the Borrowers will pay any and all broker's,
finder's or similar fees arising in connection with the transactions
contemplated under this Agreement. Further, each of the Borrowers and the
Guarantors hereby agrees to protect, defend, indemnify and hold harmless Lender
from and against any claim, action, or proceeding relating to the collection of
any broker's, finder's or other similar fees.
3.3. Collateral Audits, Appraisals.
Lender shall have the right, in its sole good faith discretion, at any time
to conduct or to employ one or more outside audit firms or other professionals
to conduct audits of any Borrower and appraisals with respect to the Collateral
and business; provided, however, that if no Pending Default or Event of Default
shall have occurred hereunder, such appraisals or audits shall be conducted no
more frequently than once a quarter. In connection therewith, such Borrower
agrees to pay to Lender on demand (i) **** all out-of-pocket expenses of such
auditors, (ii) ****, plus an amount equal to all out-of-pocket expenses, for
each appraisal of the Collateral performed by personnel employed by Lender, and
(iii) the actual charges paid or incurred by Lender if Lender elects to employ
the services of one or more third Persons to perform financial audits of any
Borrower, to appraise the Collateral, or any portion thereof, or to assess any
Borrower's business valuation. If any Borrower fails to pay an amount due under
this Section 3.3 to Lender immediately upon demand, interest shall accrue
thereon from the date of demand until paid in full, at the highest rate set
forth in any document or instrument evidencing any of the Obligations.
3.4. Termination Fee.
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(a) In the event that the Borrowers cancel or terminate this Agreement and
pay in full all amounts outstanding hereunder prior to the Revolving Loan
Maturity Date, the Borrowers will, jointly and severally, pay to Lender, a
termination fee equal to (i) **** of the maximum stated principal amount of the
Loan if such cancellation or termination occurs on or before the first
anniversary of the Closing Date, and (ii) **** of the maximum stated principal
amount of the Loan if such cancellation or termination occurs after the first
anniversary of the Closing Date. Notwithstanding the foregoing, if an Event of
Default has occurred and is continuing at any time when the Borrowers cancel or
terminate this Agreement, the Borrowers jointly and severally agree to pay a
default termination fee equal to **** of the maximum stated principal amount of
the Loan. Notwithstanding the first sentence of this Section 3.4 (a). if the
Borrowers cancel or terminate this Agreement within 180 days of Lender reducing
the advance rate on Eligible Financial Assets **** from any Reserve in effect of
the time of such increase, then Lender will permit such cancellation or
termination without the payment of the fee described in clause (a) (i) or (a)
(ii) above.
(b) If after the first anniversary of the Closing Date, the Borrowers
provide to Lender an unconditional (other than subject to customary closing
conditions) loan commitment for a credit facility that **** from a reputable
bank or finance company, Lender shall have the right of first refusal to provide
a commitment to the Borrowers in such amount on substantially similar terms and
will have the right to participate with such lender (if agreed to by such other
lender) in such credit facility in a principal amount of **** or such other
amount as Lender shall agree. Lender shall exercise its right of first refusal
within a reasonable period of time (to provide for due diligence and credit
approval, among other items) after Lender has been presented with such
commitment or such right shall be deemed waived by Lender, and Borrower shall
be, thereafter, permitted to consummate the financing with such replacement
lender. If Lender declines to exercise any such right of first refusal or to
participate (or waives the same and no Event of Default has occurred and is
continuing hereunder), Borrower shall not be obligated to pay to Lender the ****
termination fee described in clause (a)(ii) above.
(c) In view of the impracticality and difficulty of ascertaining actual
damages and by mutual agreement of the parties as to a reasonable calculation of
lost profits of Lender as a result of an early cancellation or termination.
Borrowers hereby agree to pay to Lender the applicable termination fee or
default termination in accordance with this Section 3.4. Such fees shall be
presumed to be the amount of damages sustained by Lender as a result of such
early termination or cancellation, and Borrowers agree that such amount is
reasonable under the circumstances.
3.5. Prepayment and Prepayment Notice.
(a) The Borrowers shall have the option at all times to permanently cancel
or prepay the Loan, in whole or in part, by providing to Lender sixty (60) days
prior written notice of the effective date and amount of such cancellation or
prepayment, subject to the
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terms and conditions of this paragraph. In addition, on the effective date
of any such cancellation or prepayment of any portion of the Loan prior to the
Revolving Loan Maturity Date, the Borrowers will pay to Lender the amount of
such cancellation or prepayment and the applicable termination fee set forth in
Section 3.4.
(b) The Borrowers agree that the applicable termination fee shall be due
and payable to Lender regardless of whether the prepayment results from a
Borrower's voluntary prepayment or from Lender's exercise of its rights after an
Event of Default, acceleration or otherwise.
3.6. Mandatory Prepayment or Reduction.
(a) If at any time the Revolving Credit Obligations (i) of any Borrower
exceed such Borrower's Borrowing Base or (ii) of the Borrowers in the aggregate
exceed the Revolving Credit Maximum Amount, then the Borrowers will immediately
pay to Lender such difference, which shall be applied to the Loan.
(b) Immediately after the receipt of any Net Cash Proceeds on account of
(i) the sale, assignment or other disposition of property or assets, other than
sales in accordance with clauses (ii) and (iii) of the definition of Permitted
Dispositions and sales permitted by Section 7.9 below, **** or (ii) the loss of
or damage to, or taking by condemnation or eminent domain of, all or any portion
of property or assets of a Borrower, such Borrower shall make or cause to be
made a mandatory prepayment of the Loan in an amount equal to ***, except to the
extent that no Event of Default has occurred and is continuing, and such
Borrower shall have replaced such property using such Net Cash Proceeds within
180 days after the receipt thereof, and shall have provided, to Lender's
satisfaction, evidence of the same.
(c) Immediately after the receipt of any Net Cash Proceeds from the
issuance of stock, membership interest or units or from any other additions to
the equity of or any contributions to the capital of any Borrower or Parent
Company, the Borrowers will make or cause to be made a mandatory prepayment of
the Loan in an amount equal to 100% of such Net Cash Proceeds.
(d) Immediately after the receipt of any Net Cash Proceeds from the
issuance of Indebtedness, other than Permitted Purchase Money Indebtedness
permitted pursuant to Section 7.11 below and Indebtedness related to the
Approved Subordinated Debt Issuance, the Borrowers will make or cause to be made
a mandatory prepayment of the Loan in an amount equal to ****.
(e) Nothing in this Section 3.6 shall be construed to constitute Lender's
consent to any transaction which is not expressly permitted by Article 7.
(f) On the date any mandatory prepayment is received by Lender pursuant to
clause (b), (c) or (d) above (each such payment being a "Designated
Prepayment"), such
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Designated Prepayment shall be allocated and applied, in the sole discretion of
Lender, to the repayment of the Loan.
3.7. Guarantors.
The Guarantors shall each at all times guaranty the prompt and full payment
of the Loan, subject to the terms of the Guaranty.
3.8. Additional Security.
In addition to the Collateral securing the Loan, on or prior to the date
hereof as collateral security for the Loan and the respective Guaranties, GLCA
will grant to Lender a first priority security interest and assignment in all
present and future membership interests of GL Funding; Parent Company will grant
to Lender a first priority pledge and security agreement in all of the
membership interests of GLCA; and Xxxxxx Xxxxxxxx, XX will cause the Xxxxxx
Xxxxxxxx XX Revocable Trust to grant to Lender a first priority pledge and
security agreement in all of the capital stock of Parent Company. The security
interests or assignment interests described in this Section 3.8 shall secure the
prompt and full payment and complete performance of the Obligations to Lender,
it being understood that the granting of such security for the Loan is a
material inducement to the execution and delivery of this Agreement by Lender.
4. Security Agreement.
4.1. Grant of Security Interest.
To secure the prompt payment and performance to Lender of the Obligations
and each covenant and duty under the Loan Documents, each Borrower hereby
grants, pledges, conveys and assigns to Lender continuing security interests in
and liens upon all of such Borrower's right, title and interest in all currently
existing and hereafter acquired Collateral. The absence of any reference to this
Agreement in any documents, instruments or agreements evidencing or relating to
any Obligation secured hereby shall not limit or be construed to limit the scope
or applicability of this Agreement.
4.2. Dominion of Funds Agreements and Collection of Receivables.
(a) Each Borrower will request in writing and otherwise use its best
efforts to ensure that each Account Debtor forwards payment of the amounts owed
directly to a lockbox account or arrangement satisfactory to Lender, and each
Borrower shall execute one or more blocked account agreements, control
agreements or lockbox agreements, each in form and substance satisfactory to
Lender (the "Dominion of Funds Agreements"). The Dominion of Funds Agreements
will provide, among other things, that (i) all items of payment must be
deposited in the Cash Collateral Account and proceeds thereof are held by the
deposit bank as agent or bailee-in-possession for Lender, (ii) the deposit bank
has no rights of setoff or recoupment or any other claim against the applicable
depositary account or Cash Collateral Account, other than for payment of its
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service fees and other charges directly related to the administration of such
account and lockbox services and for returned checks or other items of payment,
and (iii) the deposit bank transfer on a daily basis by automated clearing house
transaction, wire transfer or other electronic transfer all collected funds in
the applicable depositary account or Cash Collateral Account to a designated
account owned and controlled by Lender.
(b) Beginning on the date of this Agreement and continuing at all times
thereafter, each Borrower will notify all Account Debtors to remit payments to
the address specified in the respective Dominion of Funds Agreements, and all
invoices rendered after the date hereof shall bear such address. Lender, at any
time after the occurrence and during the continuance of a Pending Default or an
Event of Default, may notify Account Debtors that Collateral has been assigned
to Lender and shall be paid to Lender through the applicable depositary account.
Cash Collateral Account or otherwise. Upon request of Lender at any time after
the occurrence and during the continuance of a Pending Default or an Event of
Default, each Borrower agrees to notify such Account Debtors and indicate on all
xxxxxxxx that the accounts are payable directly to Lender at an address provided
by Lender.
4.3. Dominion of Funds.
All collections through the lockbox arrangement shall be deposited into a
Cash Collateral Account. If any Borrower makes collections on any of the
Collateral, it shall hold such collections in trust for Lender or the proceeds
received therefrom and turn over all checks, drafts, cash and other remittances
and proceeds each Business Day to be deposited in the Cash Collateral Account.
All collected funds in the Cash Collateral Accounts on a daily basis will be
transferred by means of ACH transfer, wire transfer or other electronic transfer
to a designated account in Lender's name and under its sole dominion and control
("Lender's Account"). Provided that no Pending Default or Event of Default has
occurred and is continuing or will occur as the result of such transfer, two (2)
Business Days after written request of GLCA, **** which account shall be pledged
to Lender and subject to a control agreement in favor of Lender. Lender shall
have the right to withdraw funds from any Cash Collateral Account to pay any
portion of unpaid fees and expenses due to Lender and to reduce the outstanding
principal balance under the Loan to an amount that does not exceed the Borrowing
Base.
4.4. No Duty.
Lender shall have no duty as to the collection or protection of Collateral
or any income therefrom, nor as to the preservation of rights against prior
parties, nor as to the preservation of any right pertaining thereto, beyond the
safe custody of any Collateral in the possession of Lender.
4.5. Financing Statements; Control Agreements; After-Acquired Property.
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At any time, at the request of Lender, each Borrower agrees to execute and
deliver any and all financing statements, original statements in lieu of
continuation statements, fixture filings, security agreements, collateral
assignments, mortgages, deeds of trust, pledges, assignments, endorsements of
certificates of title, and all other documents (the "Attendant Collateral
Documents") that Lender may request in its sole good faith discretion, in form
and substance satisfactory to Lender, to perfect or continue perfection Lender's
Liens in the Collateral (whether now owned or hereafter arising or acquired),
and to fully consummate all of the transactions contemplated hereby and under
the other Loan Documents; provided, such Attendant Collateral Documents are
consistent with the provisions of this Agreement. To the maximum extent
permitted by applicable law, each Borrower authorizes Lender to execute any such
Attendant Collateral Documents in such Borrower's name and authorizes Lender to
file such executed Attendant Collateral Documents in any appropriate filing
office. In addition, upon Lender's request, each Borrower shall (a) provide
Lender with a report of all new patentable, copyrightable, or trademarkable
property acquired or generated by any Borrower, (b) cause all patents,
copyrights, and trademarks acquired or generated by any Borrower that are not
already the subject of a registration with the appropriate filing office (or an
application therefor diligently prosecuted) to be registered with such
appropriate filing office in a manner sufficient to provide constructive notice
of such Borrower's ownership thereof, and (c) cause to be prepared, executed,
and delivered to Lender supplemental schedules to the applicable Loan Documents
to identify such patents, copyrights, and trademarks as being subject to the
security interests created thereunder. Each Borrower agrees to pay the cost of
filing the same in all public offices wherever filing is deemed by Lender to be
necessary or desirable. Each Borrower hereby authorizes Lender to file any
Attendant Collateral Documents describing the Collateral, and any necessary
future amendments thereto, in any and all public offices in which Lender deems
such filing to be necessary or desirable. Each Borrower agrees to cooperate with
Lender in Lender's obtaining control with respect to Collateral consisting of
deposit accounts, investment property, letter of credit rights, electronic
chattel paper and any other Collateral with respect to which perfection of a
security interest therein may be obtained by control.
4.6. Lender's Appointment as Attorney-in-Fact.
Each Borrower hereby irrevocably constitutes and appoints Lender (and any
officer, employee or agent thereof, with full power of substitution, as such
Borrower's true and lawful attorney-in-fact with full irrevocable power and
authority, for the purpose of carrying out the terms of this Agreement, to take
any and all appropriate action and to execute any and all Attendant Collateral
Documents or any documents and instruments that may be necessary or desirable to
accomplish the purposes of this Agreement and, without limiting the generality
of the foregoing, hereby grants to Lender the power and right, on behalf of such
Borrower, without notice to or assent: (a) to execute, file and record all such
financing statements, certificates of title and other certificates of
registration and operation and similar documents and instruments as Lender may
deem necessary or desirable to protect, perfect and validate Lender's security
interest in the Collateral; (b) to receive, collect, take, indorse, sign, and
deliver in such Borrower's or Lender's name, any and all checks, notes, drafts,
or other documents or instruments
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relating to the Collateral; and (c) upon the occurrence and during the
continuance of an Event of Default, (i) to notify postal authorities to change
the address for delivery of such Borrower's mail to an address designated by
Lender, (ii) to open such mail delivered to the designated address, (iii) to
sign or indorse any invoices, freight or express bills, bills of lading, storage
or warehouse receipts, drafts against debtors, assignments, verifications and
notices to Account Debtors or in connection with accounts and other documents
relating to the Collateral, (iv) to commence and prosecute any suits, actions or
proceedings at law or in equity in any court of competent jurisdiction to
collect the Collateral or any part thereof and to enforce any other right in
respect of any Collateral, (v) to settle, make and adjust all claims under such
Borrower's policies of insurance, (vi) to negotiate, settle, compromise or
adjust any Account, chattel paper or General Intangible, and (vii) generally, to
sell, transfer, pledge, make any agreement with respect to or otherwise deal
with any of the Collateral as fully and completely as though Lender were the
absolute owner thereof for all purposes, and to do, at Lender's option, at any
time or from time to time, all acts and things which Lender deems necessary to
protect, preserve or realize upon the Collateral and Lender's security interest
therein, in order to effect the intent of this Agreement to the extent permitted
by applicable law. If Lender shall incur any cost or expense in exercising any
power and right granted to it under this Section 4.6, and should such Borrower
not immediately reimburse Lender for such amounts upon demand, interest shall
accrue thereon, from the date of demand until paid in full, at the highest rate
set forth in any document or instrument evidencing any of the Obligations. This
power of attorney is a power coupled with an interest and shall be irrevocable
until all of the Obligations have been fully and finally repaid and performed
and Lender's obligations to extend credit hereunder are terminated. The powers
conferred upon Lender hereunder are solely to protect its interests in the
Collateral and shall not impose any duty upon Lender to exercise any such
powers. Lender shall be accountable only for amounts that Lender actually
receives as a result of the exercise of such powers and neither Lender nor any
of its officers, directors, employees or agents shall be responsible to any
Borrower for any act or failure to act, except for Lender's own gross negligence
or willful misconduct, as determined by a final non-appealable judgment by a
court of competent jurisdiction.
4.7. Right to Inspect.
During normal business hours and after giving reasonable advance notice,
Lender (through any of its respective officers, employees, or agents) shall have
the right, from time to time hereafter, to inspect any Borrower's books and
records and to check, test, and appraise the Collateral in order to verify such
Borrower's financial condition or the amount, quality, value, condition of, or
any other matter relating to, the Collateral.
4.8. Control Agreements.
No arrangement contemplated hereby or by any control agreement in respect
of any securities accounts or other Investment Property shall be modified by any
Borrower without the prior written consent of Lender. Upon the occurrence and
during the continuance of a Pending Default or Event of Default, Lender may
notify any securities
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intermediary to liquidate the applicable securities account or any related
Investment Property maintained or held thereby and remit the proceeds thereof to
the Cash Collateral Account or to any account established by Lender.
4.9. Delivery and Delivery of Collateral to Effect Sale.
Borrowers shall deliver to Lender or the Custodial Agent all of the
Lender's Mortgage File and all original instruments, chattel paper, and other
documents evidencing Financial Assets (i) prior to any advance request under the
Loan if the Borrowers have insufficient Revolving Credit Availability to make
such advance, or (ii) within one (1) Business Day of Borrower's receipt of same
if the Borrowers have sufficient Revolving Credit Availability for such advance.
Each Borrower hereby agrees that Lender shall have the right to direct or
redirect the delivery of all or any of the Collateral to any other designee. In
the event that any Borrower desires to sell any Financial Assets to a purchaser,
such Borrower shall deliver to Lender a notice of such proposed sale together
with a properly executed Bailee Letter signed by any prospective purchaser and
any financial or other information that such Borrower possesses in respect of
such purchaser, and such Borrower's certification that the proposed sale is in
accordance with the Borrowers' policy and procedure manual. Within two Business
Days after receipt of such notice, an executed Bailee Letter and any other
documents, agreements or assurances as Lender shall require, Lender shall direct
the Custodial Agent to deliver the Mortgage File subject to such proposed sale
to such prospective purchaser's address set forth on the notice of proposed
sale. If full payment for such purchase for such Financial Assets is not
received by Lender within two Business Days after such Mortgage File was
delivered to such purchaser, such Borrower shal1 cause such purchaser
immediately to return such Mortgage File to the Custodial Agent or Lender's
designee by way of a nationally recognized overnight express service.
4.10. Release Upon Payment.
Upon undefeasible payment in full of the Obligations secured hereby, Lender
agrees to release all Collateral from the security interest. Liens and pledges
secured hereby, such releases to be prepared by Lender and delivered to GLCA for
filing by GLCA (at Borrowers' sole expense) within a reasonable time after
payment of the Obligations.
5. Conditions Precedent.
5.1. Conditions Precedent to Initial Advance.
This Agreement shall become effective, and Lender shall be obligated to
make the initial advance hereunder only after Lender shall have received from
the Borrowers each of following items in form and substance satisfactory to
Lender: This Agreement, the promissory note and other agreements, the legal
opinion of each Borrower's counsel, documents and instruments described in
Schedule 5.1 attached hereto, a current Borrowing Base certificate on the form
set forth in Exhibit D, each duly executed where
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appropriate and in form and substance satisfactory to Lender; the fulfillment of
all the conditions described thereon and the delivery of such additional
documentation as Lender may reasonably request.
5.2. Conditions Precedent to Subsequent Advances.
Lender shall not be required to make any disbursement or advance subsequent
to the initial disbursement or initial advance under the Loan, unless on the
applicable date that each such advance is to be made:
(a) The warranties and representations set forth in Article 6 hereof and
each of the representations and warranties contained in any Loan Document at any
time pursuant to this Agreement shall be true and correct in all material
respects on and as of such date with the same effect as though such warranty or
representation had been made on and as of such date, except to the extent that
such warranty or representation is stated to expressly relate solely to an
earlier date;
(b) Each Borrower shall have complied and shall then be in compliance with
all the terms, covenants and conditions of this Agreement which are binding upon
it, and no Event of Default or Pending Default shall have occurred and be
continuing on such date or after giving effect to the advances requested to be
made;
(c) No Material Adverse Effect shall have occurred; and
(d) Each Borrower shall have delivered to Lender a current Borrowing Base
certificate in the form set forth in Exhibit D.
Each request for an advance hereunder shall constitute a warranty and
representation by the Borrower making such request that each of the conditions
contained in Sections 5.2 (a), (b), (c) and (d) have been satisfied.
6. Warranties and Representations.
In order to induce Lender to enter into this Agreement and to extend the
Loan and to make the other financial accommodations to the Borrowers, each
Borrower represents and warrants to Lender that each of the following statements
is true and correct:
6.1. Organization and Authority.
(a) Each Borrower (a) is a limited liability company duly organized,
validly existing and in full force and effect under the laws of the jurisdiction
of its organization; (b) has all requisite power and authority and all necessary
licenses and permits to own and operate its properties and to carry on its
business as now conducted and as presently proposed to be conducted; and (c) is
not doing business or conducting any activity in any jurisdiction in which it is
not duly qualified and authorized to do business, except where the failure to do
so will not have a Material Adverse Effect.
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(b) Schedule 6.1 attached hereto accurately represents as of the Closing
Date to Lender the following: (a) the classes of membership interests or units
of each Borrower, all as authorized by such Borrower's Articles of Organization,
(b) the number of membership interests or units of each such class of membership
interests or units issued and outstanding, (c) the registered owner or holder
(legally or beneficially) thereof, (d) the certificate numbers evidencing the
foregoing, if such membership interests or units are certificated, (e) such
Borrower's employer tax identification number, and (f) such Borrower's
jurisdiction of organization. All membership interests or units of all classes
of membership interests or units issued are fully paid and non-assessable. Such
Borrower does not have outstanding any other membership interests or units or
other equity security, or any other instrument convertible to an equity security
of such Borrower, or any commitment, understanding, agreement or arrangement to
issue, sell or have outstanding any of the foregoing.
6.2. Borrowing is Legal and Authorized.
All necessary limited liability company action has been taken in order to
duly authorize each Borrower's execution and delivery of this Agreement and the
other Loan Documents; (a) this Agreement and the other Loan Documents constitute
valid and binding obligations enforceable in accordance with their respective
terms; (b) the execution of this Agreement and the other Loan Documents and the
compliance with all the provisions of the Loan Documents (i) are within the
organizational powers of each Borrower, and (ii) will not conflict with, result
in any breach in any of the provisions of, constitute a default under, or result
in the creation of any Lien (other than a Permitted Lien) upon any property of
any Borrower under the provisions of any agreement, charter instrument, bylaw,
or other instrument to which any Borrower is a party or by which it may be
bound; and (c) there are no limitations in any indenture, contract, agreement,
mortgage, deed of trust or other agreement or instrument to which any Borrower
is now a party or by which any Borrower may be bound with respect to the payment
of any Indebtedness, or, to the extent applicable, the ability of any Borrower
to incur Indebtedness, including any agreements or instruments to be executed in
connection with this Agreement.
6.3. Margin Loans and Purchase of Ineligible Securities.
None of the transactions contemplated in this Agreement will violate or
result in a violation of Section 7 of the Securities Exchange Act of 1934, as
amended, or any regulation issued pursuant thereto, including, without
limitation, Regulation U of the Board of Governors of the Federal Reserve
System, 12 C.F.R., Chapter II. No Borrower owns or intends to carry or purchase
any "margin security" within the meaning of said Regulation U. None of the
proceeds of the Loan have been or will be used to purchase or refinance any
borrowing, the proceeds of which were used to purchase any "security" within the
meaning of the Securities Exchange Act of 1934, as amended from time to time.
Each Borrower represents and warrants that no portion of the Loan made hereunder
shall be used directly or indirectly to purchase ineligible securities, as
defined by
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applicable regulations of the Federal Reserve Board, underwritten by any
affiliate of Lender during the underwriting period and for thirty (30) days
thereafter.
6.4. Taxes.
All tax returns and reports required to be filed by any Borrower in any
jurisdiction have been filed, and all taxes, assessments, fees and other
governmental charges upon any Borrower and upon any property, assets, income and
franchises thereof, which are shown in such returns or reports to be due and
payable have been paid, except for Permitted Contests. Except as set forth on
Schedule 6.4 attached hereto, no Borrower knows of any proposed additional tax
assessment against it. The accruals for taxes on the books of each Borrower for
the current fiscal period have been determined in accordance with GAAP,
consistently applied, subject to year-end and audit adjustments.
6.5. Compliance with Law.
(a) Each Borrower (a) is not in violation of any Requirements of Law or the
Consumer Finance Laws, and (b) other than with respect to Licenses (as defined
below) has not failed to obtain any licenses, permits, franchises or other
governmental or environmental authorizations necessary to the ownership of such
Borrower's properties or to the conduct of its business, in each case which
violation or failure is reasonably likely to have a Material Adverse Effect.
(b) With respect to all applications and requirements for Licenses for any
ownership, acquisition, sale or other disposition, servicing, or collection of
any Financial Asset or mortgage, each Borrower has applied for or obtained and
is maintaining such License (or application) in compliance with Section 7.22 of
this Agreement.
6.6. Financial Statements; Full Disclosure.
The financial statements of the Borrowers for the fiscal year ending
December 31, 2001, which have been supplied to Lender, have been prepared in
accordance with GAAP and fairly represent each Borrower's financial condition as
of such date. The interim financial statements of each Borrower for the period
ending October 31, 2002, respectively which have been supplied to Lender have
been prepared in good faith and accurately represent each Borrower's financial
condition as of the dates of such financial information, subject to year-end and
audit adjustments. None of the financial information referred to in this Section
and none of the written statements furnished by any Borrower to Lender in
connection with obtaining the Loan, taken as a whole, contain any untrue
statement of a material fact or omit a material fact necessary to make the
statements contained therein or herein not misleading. Each Borrower has
disclosed to Lender in writing all facts, including without limitation, all
pending or threatened claims or litigation, which are reasonably likely to have
a Material Adverse Effect. No Borrower knows of any fact or circumstances
existing which has had, shall have or is reasonably likely to have a Material
Adverse Effect.
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6.7. Litigation; Adverse Effects.
Schedule 6.7 attached hereto contains a description as of the date hereof
of all pending or, to the knowledge of each Borrower, threatened claims
involving individual claims against any Borrower in ****. There is no action,
suit, audit, proceeding, investigation or arbitration (or series of related
actions, suits, proceedings, investigations or arbitrations) pending before or
by any Governmental Authority or private arbitrator or, to the best knowledge of
each Borrower, threatened against such Borrower or any property thereof (i)
challenging the validity or the enforceability of any provision of this
Agreement, or any other Loan Document, or (ii) which has had, shall have or is
reasonably likely to have a Material Adverse Effect. No Borrower is subject to
or in default with respect to any final judgment, writ, injunction, restraining
order or order of any nature, decree, rule or regulation of any court or
Governmental Authority, which individually or in the aggregate shall have or is
likely to have a Material Adverse Effect.
6.8. Labor Matters.
Except as set forth in Schedule 6.8 attached hereto, there is no collective
bargaining agreement covering any of the employees of any Borrower; and no labor
disputes (other than grievances arising in the ordinary course of business),
strikes or walkouts affecting the operations of such Borrower, are pending, or,
to the knowledge of such Borrower, threatened, planned or contemplated.
6.9. Solvency.
After giving effect to all Indebtedness of each Borrower on the date of the
Closing Date (including without limitation all amounts advanced under the Loan
and all Contingent Obligations) and such other dates as advances are requested
under the Loan, each Borrower is Solvent.
6.10. Government Consent.
Neither the nature of any Borrower or of the business or properties, nor
any relationship between any Borrower and any other entity or person, nor any
circumstance in connection with the execution of this Agreement, is such as to
require a consent, approval or authorization of, or filing, registration or
qualification with, any Governmental Authority on the part of any Borrower as a
condition in the execution and delivery of this Agreement and the notes and
documents contemplated herein.
6.11. No Liens.
Each Borrower (a) has indefeasible title to all personal and Real Property
in which it has an interest, free from any Liens, except Permitted Liens, and
(b) has not agreed or consented to cause or permit in the future (upon the
happening of a contingency
-29-
or otherwise) any of its property whether now owned or hereafter acquired to
be subject to a Lien, except Permitted Liens.
6.12. Indebtedness.
As of the Closing Date, set forth on Schedule 6.12 is a true and complete
schedule of each Borrower's Indebtedness (other than Indebtedness to be paid
with the initial advance of the Loan). No Borrower has incurred any Indebtedness
other than Indebtedness permitted under this Agreement.
6.13. No Defaults.
No event has occurred and no condition exists which would constitute a
Pending Default or an Event of Default pursuant to this Agreement. No Borrower
is in violation in any respect of any term of any agreement, charter instrument,
bylaw or other instrument to which it is a party or by which it may be bound
which violation is reasonably likely to have a Material Adverse Effect.
6.14. Environmental Protection.
Each Borrower (a) has no actual knowledge of the permanent placement,
burial or disposal of any Hazardous Materials on Real Property, of any spills,
releases, discharges, leaks, or disposal of Hazardous Materials that have
occurred or are presently occurring on, under, or onto the Real Property, or of
any spills, releases, discharges, leaks or disposal of Hazardous Materials that
have occurred or are occurring off the Real Property as a result of the
improvement, operation, or use of the Real Property which would result in
non-compliance with any of the Environmental Laws; (b) to the best of its
knowledge, is in compliance with all applicable Environmental Laws; (c) knows of
no pending or threatened environmental civil, criminal or administrative
proceedings against such Borrower relating to Hazardous Materials; (d) knows of
no facts or circumstances that would give rise to any future civil, criminal or
administrative proceeding against such Borrower relating to Hazardous Materials;
and (e) has not permitted any of its employees, agents, contractors,
subcontractors, or any other person occupying or present on the Real Property to
generate, manufacture, store, dispose or release on, about or under the Real
Property any Hazardous Materials which would result in the Real Property not
complying with the Environmental Laws and which would give rise to a an
obligation to take a Remedial Action of such Borrower which would have a
Material Adverse Effect.
6.15. Regarding the Financial Assets and Locations.
To the best knowledge of each Borrower, (a) each Financial Asset is a bona
fide and genuine obligation, and the Account Debtors unconditionally owe and are
obligated to pay the full amounts reflected therein according to the terms
thereof without any defense, offset or counterclaim; (b) all documents to be
given to Lender with respect to such Financial Asset are genuine; (c) to the
best of such Borrower's knowledge, pursuant to its customary credit
investigation in the ordinary course of business as of the date each
-30-
account is created, each of the Account Debtors is Solvent, or with respect to
any Account Debtors who are not Solvent, such Borrower has set up on its books
and in its financial records bad debt reserves adequate to cover such accounts;
(d) each of the Financial Assets referenced on each Borrower's most recent
borrowing base certificate against which each Borrower has requested an advance
under the Loan is an Eligible Financial Asset; (e) the Collateral is located
only at the locations identified in Schedule 6.15 attached hereto; (f) each
Borrower keeps correct and accurate records itemizing and describing the type,
quality and quantity of its Inventory and Equipment and the book value thereof;
(g) each Financial Asset owned by a Borrower complies fully with such Borrower's
written policies and procedure manual in effect from time to time, and (h) each
Account Debtor on each Financial Asset has been notified to make all payments to
the lockbox address specified in the Dominion of Funds Agreements.
6.16. Intellectual Property.
Each Borrower owns or has the legal and valid right to use all Intellectual
Property necessary for the present and planned operation of its business without
any known conflict with the rights of others, free from any lien or encumbrance,
other than Permitted Liens and free of any restrictions material to the
operation of its business as presently conducted. Except as set forth in
Schedule 6.16 attached hereto, each Borrower (a) has no registered Intellectual
Property, (b) as licensor, licenses no registered Intellectual Property, and (c)
to the best of its knowledge, is not a party to any material license agreement
with respect to any registered Intellectual Property, other than with respect to
software available from multiple vendors.
7. Affirmative and Negative Covenants.
Each Borrower covenants that on and after the date of this Agreement until
terminated pursuant to the terms of this Agreement, or so long as any
Indebtedness provided for herein remains unpaid:
7.1. Payment of Taxes and Claims.
Each Borrower will pay (a) all taxes, estimated payments, assessments and
governmental charges or levies imposed upon it or its property or assets or in
respect of any of its franchises, businesses, income or property when due
(except to the extent payment may be withheld or conditioned in connection with
a Permitted Contest); and (b) all claims of materialmen, mechanics, carriers,
warehousemen, landlords, bailees and other like persons, (including, without
limitation, claims for labor, services, materials and supplies) for sums which
have become due and payable and which by law have or may become a Lien upon any
Borrower's property or assets, other than for Permitted Contests.
7.2. Collateral Insurance.
Each Borrower shall have and maintain insurance at all times with respect
to all Inventory and Equipment insuring against risks of fire (including
so-called extended
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coverage), explosion, theft, sprinkler leakage and such other casualties as
Lender may reasonably require, including, without limitation, hazard and
liability insurance, containing such terms, in such form, for such amounts, for
such periods and written by such insurance companies as are substantially
similar to that reflected on the insurance certificate submitted to Lender on or
before the Closing Date, and each such policy shall (i) contain a clause or
endorsement satisfactory to Lender that names Lender as lender loss payee, as
its interests may appear, (ii) provide that no act, default or breach of
warranty or condition of the insured or any other person shall affect the right
of Lender to recover under such policy or policies of insurance or to pay any
premium in whole or in part relating thereto, and (iii) provide for thirty (30)
days' written minimum notice of cancellation or alteration to Lender. Each
Borrower shall deliver to Lender evidence of the payment of all premiums of all
policies of insurance. In the event of failure to provide insurance as provided
herein or in Section 7.4 below, Lender may, at its option, provide such
insurance, and each Borrower shall pay to Lender, upon demand, the cost thereof.
Should said sum not be paid to Lender upon demand, interest shall accrue thereon
from the date of demand until paid in full at the highest rate set forth in any
document or instrument evidencing any of the Obligations.
7.3. Place of Business; Books and Records.
(a) Each Borrower shall (i) maintain the same principal place of business
and chief executive office in existence as of the Closing Date of this
Agreement; (ii) deliver to Lender at least thirty (30) days prior to the
occurrence of any of the following events, written notice of such impending
events: (A) a change in the principal place of business or chief executive
office, (B) the opening or closing of any place of business, or (C) a change in
name, identity or structure; and (iii) remain organized in the state of its
organization as of the Closing Date of this Agreement.
(b) Each Borrower shall (i) at all times keep accurate and complete records
of the Collateral in accordance with GAAP, including without limitation, a
perpetual inventory and complete and accurate stock records, and at all
reasonable times and from time to time, shall allow Lender, by or through any of
its officers, agents, attorneys or accountants, to examine, inspect and make
extracts from such books and records and to arrange for verification of the
Collateral directly with Account Debtors or by other methods and to examine and
inspect the Collateral wherever located; (ii) provide Lender, or Lender's
designee or bailee, original copies of the agreements with the Account Debtors,
and such other documentation and information relating to the Collateral as
Lender may require, and (iii) keep the records concerning the Collateral at its
principal place of business and chief executive office as of the effective date
of this Agreement unless Lender shall give its prior written consent otherwise.
7.4. Maintenance; Collateral Covenants.
(a) Each Borrower shall (i) maintain its property in a condition comparable
to that on the date hereof, except for normal wear and tear and routine
maintenance and obsolescence in the ordinary course of business and make all
renewals, replacements,
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additions, betterments and improvements thereto which Lender deems necessary;
(ii) maintain, with financially sound and reputable insurers, insurance with
respect to its properties and business against such casualties and
contingencies, of such types (including fire and casualty, public liability,
products liability, larceny, embezzlement, or other criminal misappropriation
insurance) and in such amounts as is customary in the case of entities of
established reputations engaged in the same or a similar business and similarly
situated, with each such policy of insurance containing a clause or endorsement
satisfactory to Lender that names Lender as loss payee or additional insured, as
its interest may appear, and that provides that no act, default or breach of
warranty or condition of any Borrower or any other person shall affect the right
of Lender to recover under such policy or policies of insurance or to pay any
premium in whole or in part relating thereto, in such amounts as is customary in
the case of entities of established reputations engaged in the same or a similar
business and similarly situated; (iii) reflect in its financial statements
adequate accruals and appropriations to reserves and keep and maintain proper
books of record and account in which entries in conformity with GAAP shall be
made of all dealings and transactions in relation to its businesses and
activities, including, without limitation, transactions and other dealings with
respect to the Collateral; (iv) do or cause to be done all things reasonably
necessary (A) to preserve and keep in full force and effect its existence,
rights and franchises, and (B) to maintain its status as duly organized and
existing, and in good standing, under the laws of the state of its organization;
(v) conduct continuously and operate actively its business and take all actions
reasonably necessary to enforce and protect the validity of any Intellectual
Property material to such Borrower's business; (vi) not be in violation of any
Requirements of Law or Consumer Finance Laws, which violation is reasonably
likely to have a Material Adverse Effect; (vii) obtain no later than February
11, 2003, and thereafter maintain a Key Man Life Insurance Policy satisfactory
to Lender in an amount not less than $2,000,000 on the life of Xxxxxx Xxxxxxxx,
XX, which shall be collaterally assigned to Lender; and (viii) maintain and
update such Borrower's policies and procedure manual in accordance with
applicable Requirements of Law and Consumer Finance Laws.
(b) Each Borrower shall (i) defend the right, title and interest of Lender
in and to the Collateral against all claims and demands of all persons and
entities at any time claiming the same or any interest therein; (ii) promptly
perform, on request of Lender, such acts as Lender may determine to be
reasonably necessary or advisable to create, perfect, maintain, preserve,
protect and continue the perfection of any Lien provided for in this Agreement
or otherwise to carry out the intent of this Agreement; (iii) (A) use its best
efforts to obtain, prior to the placement of any Collateral in or upon any
leased Real Property, a waiver from the lessor with respect to the rights
(whether present or future) of the lessor with respect to that Collateral, (B)
advise Lender promptly, in writing and in reasonable detail of any material
encumbrance or claim asserted against any of the Collateral, of any material
change in the composition of the Collateral, and of the occurrence of any other
event that would have a material adverse effect upon the aggregate value of the
Collateral or upon the security interest of Lender, and (C) keep the Collateral
in good condition and shall not misuse, abuse, secrete, waste or destroy any of
the same; and (iv) maintain no other place of business or place where Collateral
is
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located, except as shown in Schedule 6.15 attached hereto, or as permitted
hereunder and other locations as to which such Borrower has given Lender at
least thirty (30) days' advance written notice and has obtained Lender's prior
written consent.
7.5. Environmental Compliance.
Each Borrower shall be and remain in compliance with all Environmental
Laws, except where the failure to do is not reasonably likely to cause such
Borrower to incur or to have environmental liabilities and costs ****. In
addition, each Borrower shall (a) keep any of its Real Property free of any
Environmental Liens or post bonds or other financial assurances sufficient to
satisfy the obligations or liability evidenced by such Environmental Liens, (b)
provide to Lender documentation of such compliance which Lender reasonably
requests, (c) promptly notify Lender of any release of a Hazardous Material of
any reportable quantity from or onto property owned or operated by any Borrower
and take any Remedial Actions required to xxxxx said release or otherwise to
come into compliance with applicable Environmental Laws, and (d) promptly
provide Lender with written notice within ten (10) days of the receipt of any of
the following: (i) notice that an Environmental Lien has been filed against any
of the Real Property or personal property of any Borrower, (ii) commencement of
any Environmental Action or notice that an Environmental Action will be filed
against any Borrower, and (iii) notice of a violation, citation, or other
administrative order which is reasonably likely to result in a Material Adverse
Effect.
7.6. Average/Weighted Loan Basis.
At no time will the aggregate Loan Basis of the Borrowers' consolidated
Financial Assets exceed ninety percent (90%) of the aggregate unpaid principal
amounts of all of Borrowers' Financial Assets.
7.7. Management.
At all times Xxxxxx Xxxxxxxx, XX will have an active role in the executive
management of each Borrower and Parent Company; provided, however, if he dies or
become incapacitated, the Borrowers within thirty (30) days after his death must
have hired an executive of similar educational background, ability and
experience who is in all respects satisfactory to Lender.
7.8. Restriction on Fundamental Changes: Conduct of Business.
No Borrower shall (a) enter into any merger or consolidation, or liquidate,
wind up or dissolve (or suffer any liquidation or dissolution), or convey,
lease, sell, transfer or otherwise dispose of, in one transaction or a series of
transactions, any substantial portion of such Borrower's business or property,
whether now or hereafter acquired, (b) enter into limited liability companies,
partnerships or joint ventures with any other entity, (c) acquire all or
substantially all of the assets or business of any other company, person or
entity, (d) create, acquire or permit to exist any Subsidiaries (other than GL
Funding as a
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Subsidiary of GLCA), (e) conduct business under any trade names other than the
trade names of such Borrower as of the Closing Date of this Agreement, or (f)
engage in any business other than the businesses engaged in by such Borrower on
the date hereof and any business or activities which are substantially similar
or related thereto. No Borrower will make any material change in its current
business or business practices without providing not less than sixty (60) days
prior written notice to Lender. No Borrower shall permit Parent Company to
create, acquire or permit to exist any Subsidiaries other than GLCA, and such
Subsidiary of Parent Company shall be wholly owned by Parent Company.
7.9. Sale of Assets.
No Borrower shall sell, assign, lease, convey or otherwise dispose of any
property, whether now owned or hereafter acquired, or any income of profits
therefrom, or enter into any agreement to do so except for (a) Permitted Liens,
(b) Permitted Dispositions, and (c) any sale of Financial Assets of any Borrower
made in the ordinary course of such Borrower's business; provided, however, (i)
the Net Cash Proceeds derived from such sale is at least **** of the Loan Basis
of such Financial Assets, (ii) after giving effect to such sale, no Pending
Default or Event of Default will exist and (iii) such Borrower delivers to
Lender a notice of the proposed sale at least five (5) Business Days prior to
such sale. Notwithstanding the foregoing, no Borrower may grant a security
interest in or encumber any Financial Assets, Accounts or General Intangibles
other than in favor of Lender.
7.10. Negative Pledge.
No Borrower will cause or permit or permit to exist or agree or consent to
cause or permit in the future (upon the happening of a contingency or
otherwise), any of the Collateral or any other real or personal property,
whether now owned or hereafter acquired, to become subject to a Lien, except for
Permitted Liens. In addition, no Borrower will grant or agree to provide in the
future (upon the happening of a contingency or otherwise), a "negative pledge"
or other covenant or agreement similar to this Section 7.10 in favor of any
other lender, creditor or third party.
7.11. Indebtedness.
No Borrower will directly or indirectly create, incur, assume or otherwise
become or remain liable with respect to any Indebtedness, except for (i)
Indebtedness to Lender, (ii) Permitted Purchase Money Indebtedness (including
Capital Lease obligations) which in the aggregate do not exceed **** outstanding
at any time, and (iii) the Approved Subordinated Debt Issuance not to exceed
**** outstanding at any time.
7.12. Contingent Obligations.
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No Borrower directly or indirectly will create or become liable with
respect to any Contingent Obligation, except (a) recourse obligations resulting
from the indorsement of negotiable instruments for collection in the ordinary
course of business, (b) obligations, warranties and indemnities not relating to
Indebtedness, which have been or are undertaken or made in the ordinary course
of such Borrower's business, and (c) Contingent Obligations with respect to
surety, appeal and performance bonds obtained by such Borrower.
7.13. Restricted Payments.
No Borrower shall declare or make any Restricted Payment other than for (a)
payments of interest made prior to the occurrence of a Pending Default or an
Event of Default on account of any Subordinated Debt; and (b) on the business
day immediately preceding the date on which GLCA's members shall be required to
make any tax related payment to any Governmental Authority, GLCA may make
distributions to such members in an amount not to exceed such member's actual or
estimated (at the maximum marginal income tax rate applicable to individuals)
tax obligations attributable to such member's allocable share of GLCA's Net
Income, from funds legally available for such purpose; provided, such members
shall utilize such amount thereof as is necessary to pay his or her tax
obligations; provided further, any amount otherwise permitted to be paid under
this clause shall be reduced by the amount of any state or federal income tax
related payments made directly by any Borrower or any Affiliate to any
Governmental Authority, and evidence of such distributions, such as by copies of
Form 1120(S) and estimated tax payment forms of such Borrower's members shall be
submitted to Lender at the time of such distributions; and provided further,
that (i) each Borrower shall deliver to Lender a notice at least fifteen (15)
days prior to the distribution to such members and (ii) such distribution will
not cause a Pending Default or Event of Default.
7.14. Loans and Advances, Investments.
No Borrower shall directly or indirectly make or own any Investment except:
(a) Permitted Investments and (b) loans or advances to members of executive
management of such Borrower, which loans and advances do not in the aggregate
**** outstanding at any time.
7.15. Non-Qualified Sellers; Restriction on Certain Assets.
(a) The Borrowers will not purchase any Financial Asset from a Seller of
Financial Assets (other than a Qualified Seller) which, at any time when added
to all other Financial Assets owned by the Borrowers and purchased from such
Seller, causes the aggregate Loan Basis of all such Financial Assets to ****.
(b) At no time shall the Loan Basis of Borrowers' aggregate Non-Performing
Foreclosure Loans and Personal Property Loans be more than **** *** of the
aggregate Loan Basis of all Financial Assets.
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7.16. Transactions With Affiliates.
No Borrower shall, except as otherwise expressly permitted herein, directly
or indirectly enter into or permit to exist any of the following: (a) make any
Investment in an Affiliate; (b) transfer, sell, lease, assign or otherwise
dispose of any asset to any Affiliate; (c) merge into or consolidate with or
purchase or acquire assets from any Affiliate; (d) repay any Indebtedness to any
Affiliate; (e) pay any royalties or license fees to any Affiliate; (f) pay any
management or consulting fees to any Affiliate; or (g) enter into any other
transaction directly or indirectly with or for the benefit of any Affiliate
(including, without limitation, guaranties and assumptions of obligations of any
such Affiliate); except in each of the foregoing cases for transactions (i) in
the ordinary course of business, and (ii) either on a basis no less favorable to
such Borrower as would be obtained in a comparable arm's length transaction
with a person, entity or corporation not an Affiliate, or in the case of
compensation payable to any officer or director of such Borrower, in an amount
approved by the Board of Directors or managers of such Borrower.
7.17. Maintenance of Deposit Accounts.
No Borrower shall maintain or have any operating accounts or other accounts
at any bank, depositary source or other financial institution where money or
proceeds of Collateral are deposited or maintained, other than the accounts set
forth on Schedule 7.17 attached hereto, or such other accounts acceptable to
Lender in its sole good faith discretion.
7.18. Modification of Accounts Receivable.
No Borrower shall (a) extend, amend or otherwise modify the terms of any
Financial Asset, or (b) amend, modify or waive any term or condition of any
contractual obligation related thereto; provided, however, that such Borrower
may extend, amend or otherwise modify the terms of any Financial Asset in the
ordinary course of business, if such extension, amendment, modification or
waiver does not cause a Financial Asset to become or otherwise remain, but for
such action, an Eligible Financial Asset. If there is any dispute with respect
to any Financial Asset, such Borrower shall take reasonable efforts to resolve
or settle such dispute at no expense or detriment to Lender
7.19. Prepayment and Amendments of Indebtedness.
No Borrower shall (a) prepay, redeem, defease, purchase, or otherwise
acquire any of its Indebtedness, other than the Obligations to Lender in
accordance with this Agreement, and (b) directly or indirectly, amend, modify,
alter, increase, or change any of the terms or conditions of any agreement,
instrument, document, indenture, or other writing evidencing or concerning
Indebtedness permitted under this Agreement without the prior written consent
of Lender, if the effect of any such amendment or modification is adverse to the
interests of Lender or any Borrower.
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7.20. Restrictions on Parent Company.
Each Borrower agrees to cause Parent Company not to (i) incur or permit to
exist any Indebtedness or Contingent Obligations, (ii) grant any liens or
security interest other than in connection with this Agreement, and (iii) engage
in any business or activity other than acting as a Parent Company for each of
its Subsidiaries.
7.21. Financial Covenants.
(A) Adjusted Tangible Net Worth.
The Borrowers on a consolidated basis, agree to maintain at all times
during the periods specified below an Adjusted Tangible Net Worth of not less
****.
(B) Minimum Current Ratio.
The Borrowers, on a consolidated basis, agree to maintain: (a) at all times
prior to the first anniversary of the date of this Agreement, a ratio of current
assets to current liabilities of not less than ****; (b) and at all times on and
after the first anniversary of the date of this Agreement and prior to the
Revolving Loan Maturity Date, a ratio of current assets to current liabilities
of not less than ************. For the calculation of the current ratio, all
Obligations under the Loan will be classified in accordance with GAAP.
(C) Interest Coverage Ratio.
The Borrowers, on a consolidated basis, agree to maintain at all times for
the periods specified below an Interest Coverage Ratio of not less than ****
"Interest Coverage Ratio" means the ratio of the Borrowers' consolidated (a)
EBITDA for such period, minus any Restricted Payments made during such period to
(b) Interest Expense for such period.
The Interest Coverage Ratio shall be determined as of the last day of each
quarter for the three (3) month period ending on such date.
(D) Leverage Ratio.
The Borrowers, on a consolidated basis, agree to maintain at all times a
ratio of Total Liabilities to Adjusted Tangible Net Worth of not greater than a
ratio of ****.
(E) Capital Expenditures.
The Borrowers, on a consolidated basis, will not make or incur any Capital
Expenditures, including by way of the incurrence of Capital Lease obligations,
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expenditures for maintenance and repairs in accordance with GAAP or otherwise
**** during any fiscal year without Lender's prior written consent.
7.22 Licenses.
(a) Within seven days of being notified by Lender in writing or otherwise
acquiring knowledge of the need for a License (as defined below), each Borrower
agrees to commence immediately and diligently pursue (i) all applications and
requirements for licenses for any ownership, acquisition, sale or other
disposition, servicing, or collection of any Financial Asset or mortgage, or any
other license applicable to any Borrower's business or operations (any of the
foregoing, a "License") identified by Lender, any Governmental Authority, a
Borrower or any Person advising Borrower in respect of License requirements at
any time prior to or subsequent to the date hereof (an "Advisor") as necessary
or desirable for such Borrower's business or operations, or (ii), in the
alternative, if such License does not apply to the ownership of a Financial
Asset, contractual negotiations to engage a third-party servicer satisfactory in
all respects to Lender to service such Financial Asset.
(b) As to Financial Assets owned as of the date of this Agreement, no
later than 90 days after the date of this Agreement, in any location in which
Lender, any Governmental Authority or any Advisor has identified that a License
is necessary or desirable to service or collect Financial Assets or mortgages,
but a Borrower has not obtained such License, such Borrower agrees to engage a
fully licensed third-party servicer having such a License and who is in all
respects satisfactory to Lender to service such Financial Asset. Any agreement
with any third-party servicer must be in all respects satisfactory to Lender
and must contain, inter alia, provisions that such Person will enter into an
agreement on the same terms with Lender in the event that Lender exercises its
rights under this Agreement, that such third-party servicer will make all
payments to Lender's lockbox arrangement or blocked account, and that such
Person will maintain insurance satisfactory to Lender.
(c) In any location in which a License to acquire, dispose, own or hold
Financial Assets has been identified by Lender, any Governmental Authority or
any Advisor, but Borrower has not obtained such License, each Borrower agrees,
upon the request of Lender, to sell all Financial Assets subject to such License
no later than 90 days after the date of this Agreement.
(d) Each Borrower further agrees not to purchase or originate any Financial
Asset for which such Borrower either does not possess an appropriate License or
has not engaged a third-party servicer satisfactory to Lender and which servicer
has such a License.
8. Financial Information and Reporting.
The Borrowers will deliver the following to Lender:
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(a) within thirty (30) days after the end of each month, financial
statements of each Borrower, including a balance sheet and statements of income
and surplus, and statement of cash flows, certified by a Financial Officer as
fairly representing each Borrower's financial conditions as of the end of such
period;
(b) within thirty (30) days after the end of each month, a certificate
signed by a Financial Officer certifying the compliance of each Borrower with
the terms of this Agreement and the calculation of the financial covenants
contained in Section 7.21, hereof;
(c) a current Borrowing Base certificate in a form set forth, on Exhibit D,
setting forth the calculation of the Borrowing Base for each Borrower with each
advance request under the Loan, but in any event, no less frequently than once a
month on the last day of such month;
(d) Intentionally Omitted;
(e) within twenty (20) days after the end of each month and immediately
prior to each advance request under the Loan, a report for each Borrower, in
form satisfactory to Lender, certified by a Financial Officer setting forth the
number and dollar total of Financial Assets receivable due and payable (i) not
more than thirty (30) days, (ii) more than thirty (30) days and not more than
sixty (60) days, (iii) more than sixty (60) days and not more than ninety (90)
days, (iv) more than ninety (90) and not more than 120 days, and (v) more than
120 days from the date of the "account next due date" therefor, and including a
detailed calculation and certification of the accounts receivable that are not
Eligible Financial Assets;
(f) within ninety (90) days after the end of each fiscal year thereafter,
audited, unqualified financial statements of the Borrowers, on a consolidated
basis, with audited consolidating schedules prepared in accordance with GAAP and
certified by Xxxxx & Company LLP or other independent public accountants
reasonably satisfactory to Lender, containing (i) balance sheets, (ii)
statements of income and surplus, and (iii) statements of cash flows and
reconciliation of capital accounts, along with any management letters written by
such accountants and a lender reliance letter from such accountants permitting
Lender to rely on such certifications of such accountants;
(g) no later than thirty (30) days prior to the beginning of each fiscal
year, financial projections for each Borrower for its next fiscal year, on a
quarterly basis, including a projected income statement;
(h) no later than thirty (30) days after each calendar year-end, a true,
accurate and complete financial statement as of December 31st of the preceding
calendar year for each Guarantor, and no later than fifteen (15) days after
filing (and proof of extensions if not filed by April 15 of each year), a
complete copy of such Guarantor's tax returns and schedules thereto:
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(i) immediately upon becoming aware of the existence of any Pending
Default, Event of Default or breach of any term or conditions of this Agreement,
a written notice specifying the nature and period of existence thereof and what
action such Borrower is taking or proposes to take with respect thereto;
(j) within five (5) days after the adoption of any change or amendment to
Borrower's policy or credit policy manual, copies of such changes or amendments;
(k) within thirty (30) days after the end of each quarter, a compilation of
all legal or administrative proceedings pending or threatened;
(l) within thirty (30) days prior to each anniversary date of this
Agreement a complete legal audit opinion and reliance letter from Borrower's
independent legal counsel addressing the Borrower's compliance with (i) Consumer
Finance Laws and (ii) whether Borrowers' Lending and collections Policy and
Procedures Manuals evidence compliance with applicable state and federal laws,
including without limitation Consumer Finance Laws, which opinion shall include,
without limitation, the following (A) each Borrower's compliance with all
franchises, licenses, consents, permits, approvals or authorizations of any
Governmental Authority and Requirements of Law in respect of any Borrower in
connection with the conduct of such Borrower's business and operations and the
effectiveness of all such franchises, licenses, consents, permits, approvals or
authorizations; (B) to the best of such counsel's knowledge, Borrower's
compliance with all laws, rules, and regulations relating to the conduct of its
business, including the acquisition of loans, financing of loans and the
servicing of loans, the "Truth-In-Lending" Act, as amended, Federal Reserve
Board Regulation Z, as amended, federal or state licensing laws, usury laws, and
other applicable consumer credit protection laws or Consumer Finance Laws; and
(C) to the best of such counsel's knowledge, after diligent inquiry, all pending
or threatened litigation, regulatory action, or other dispute that could
adversely affect any Borrower;
(m) immediately upon becoming aware of the existence of (i) any pending or
threatened adverse action or proceeding by any Governmental Authority, (ii)
receipt of any notice that any Borrower is required to have a License, or (iii)
any application for any License is denied or any compliance issue exists, copies
of same, together with copies of any such pending or threatened action or
proceeding or notice;
(n) within two (2) weeks of receiving any state regulatory audit or other
reports, notices or other correspondence or communications (other than those
described in subsection 8 (m) above), copies of the same, and to the extent any
Borrower is required or chooses to respond to such item, a copy of such response
concurrently with its transmission to the applicable regulatory agency; and
(o) at the request of Lender, such other information as Lender may from
time to time reasonably require.
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9. Default.
9.1. Events of Default.
Each of the following shall constitute an "Event of Default"
hereunder: (a) any Borrower fails to make any payment of principal, interest or
any other sum due and payable under any Loan Document or otherwise on or before
the date such payment is due; (b) any Borrower fails to perform or observe any
covenant, agreement or duty contained in this Agreement; (c) any Borrower or
Loan Party fails to perform or observe any covenant, agreement or duty contained
in any Loan Document (other than this Agreement and other than as described in
clauses (a) or (b) above), and such failure continues for more than ten (10)
Business Days after such failure shall first become known or reasonably should
have become known to any officer of any Borrower; (d) any warranty,
representation or other statement made or deemed to be made in this Agreement or
in any Loan Document is false or misleading in any respect; (e) any Borrower or
any Loan Party becomes insolvent or commences any Insolvency Proceeding; (f) any
Insolvency Proceeding is instituted against any Borrower or any Loan Party and
continues for sixty (60) days undismissed or undischarged; (g) a final judgment
or judgments for the payment of money aggregating **** is or are outstanding
against any Borrower or any Loan Party, and any such judgment or judgments have
not been discharged or bonded in full or stayed; (h) the occurrence of any event
which allows the acceleration of the maturity of any Indebtedness of any
Borrower or any Loan Party to Lender or any of Lender's Affiliates (other than
evidenced by this Agreement); (i) the occurrence of any event which allows the
acceleration of the maturity of any Indebtedness in **** of any Borrower or any
Loan Party or constitutes a default or breach under any material lease or
material contract of any such Person, under any indenture, agreement or
undertaking, unless waived, extended or otherwise consented to by the obligee or
holder thereof; (j) the dissolution of any insurer or the default by any surety
for any Borrower with respect to any obligation or liability to Lender or any of
Lender's affiliates and the failure of the Borrowers to replace such insurer or
surety with a substitute satisfactory to Lender within thirty (30) days after
such dissolution or default; (k) a Change of Control of any Borrower or of any
Loan Party shall have occurred without Lender's prior written consent; (l)
Lender, in its sole good faith discretion, determines that a Material Adverse
Effect has occurred or that a material adverse change has occurred in the
financial condition, operations or business of any Borrower or any Loan Party,
or in the value of the Collateral or in Lender's interest in the Collateral
which impairs the Borrower's or such Loan Party's ability to pay or perform the
Obligations for which it is liable under the Loan Documents; (m) the death or
dissolution of any Guarantor and the failure of the Borrowers to replace such
Guarantor with a substitute satisfactory to Lender within thirty (30) days of
such death or dissolution; or (n) any Borrower fails to comply with the
provisions of Schedule 9.1 (n) or fails to deliver to Lender, in form and
substance satisfactory to Lender, any of the agreements, instruments and other
documents or requirements listed under the heading "Post Closing Matters" on
Schedule 9.1(n) within the time periods set forth on such schedule applicable to
such item or requirement.
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9.2. Default Remedies.
(a) Acceleration. Upon the occurrence and during the continuance of an
Event of Default, Lender may immediately exercise any right, power or remedy
permitted to Lender by law or any provision of this Agreement, and shall have,
in particular, without limiting the generality of the foregoing, the right to
declare the entire principal, all interest accrued, and all other charges
accruing on all Obligations to be forthwith due and payable, without any
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by each Borrower.
(b) Liquidation of Collateral. Upon the occurrence and during the
continuance of an Event of Default, Lender shall have the rights and remedies of
a secured party under this Agreement, under any other instrument or agreement
securing, evidencing or relating to the Obligations and under the laws of the
State in which the Collateral is located or any other applicable state law.
Without limiting the generality of the foregoing, Lender shall have the right to
take possession of the Collateral and all books and records relating to the
Collateral and for that purpose Lender may enter upon any Real Property on which
the Collateral or books and records relating to the Collateral or any part
thereof may be situated and remove the same therefrom. Except for the notices
specified below of time and place of public sale or disposition or time after
which a private sale or disposition is to occur, each Borrower expressly agrees
that Lender, without demand of performance or other demand, advertisement or
notice of any kind to or upon any Borrower or any other person or entity (all
and each of which demands, advertisements and/or notices are hereby expressly
waived), may forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give
an option or options to purchase or sell or otherwise dispose of and deliver the
Collateral (or contract to do so), or any part thereof, in one or more parcels
at public or private sale or sales, at any of Lender's offices or elsewhere at
such prices as Lender may deem best, for cash or on credit or for future
delivery without assumption of any credit risk. Lender shall have the right upon
any such public sale or sales, and, to the extent permitted by law, upon any
such private sale or sales, to purchase the whole or any part of the Collateral
so sold, free of any right or equity of redemption. Each Borrower further
agrees, (i) at Lender's request, to assemble the Collateral and to make it
available to Lender at such places as Lender may reasonably select, and (ii) to
allow Lender to use or occupy such Borrower's Real Property, without charge, for
the purpose of effecting Lender's remedies in respect of the Collateral. Lender
shall apply the net proceeds of any such collection, recovery, receipt,
appropriation, realization or sale, after deducting all reasonable costs and
expenses of every kind incurred in connection therewith or incidental to the
care or safekeeping of any or all of the Collateral or in any way relating to
the rights of Lender hereunder, including reasonable attorneys' fees and legal
expenses, to the payment in whole or in part of the Obligations, in such order
as Lender may elect, and only after so paying over such net proceeds and after
the payment by Lender of any other amount required by any provision of law, need
Lender account for the surplus, if any. To the extent permitted by applicable
law, each Borrower waives all claims, damages and demands against Lender arising
out of the repossession, retention, sale or disposition of the Collateral and
agrees that Lender need
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not give more than ten (10) days' notice pursuant to the terms of this Agreement
of the time and place of any public sale or of the time after which a private
sale may take place and that such notice is reasonable notification of such
matters. Each Borrower shall remain liable for any deficiency if the proceeds of
any sale or disposition of the Collateral are insufficient to pay all amounts to
which Lender is entitled and shall also be liable for the costs of collecting
any of the Obligations or otherwise enforcing the terms thereof or of this
Agreement, including reasonable attorneys' fees.
10. General Provisions.
10.1. Notices.
(a) All communications under this Agreement or under the notes executed
pursuant hereto shall be in writing and shall be sent by facsimile or by a
nationally recognized overnight delivery service (i) if to Lender, at the
address or facsimile number set forth below Lender's signature to this
Agreement, or at such other address or facsimile number as may have been
furnished in writing to the Borrowers, by Lender; and (ii) if to any Borrower,
at the address or facsimile number set forth below any Borrower's signature to
this Agreement, or at such other address or facsimile number as may have been
furnished in writing to Lender by any Borrower.
(b) Any notice so addressed and sent by facsimile shall be deemed to be
given when confirmed, and any notice sent by nationally recognized overnight
delivery service shall be deemed to be given the next day after the same is
delivered to such carrier.
10.2. Access to Accountants.
Each Borrower hereby irrevocably authorizes its accountants to provide to
Lender any and all information that Lender requests from time to time with
regard to any Borrower, and to discuss with Lender from time to time any and all
matters relating to any Borrower. In furtherance of the foregoing, each Borrower
hereby waives any privilege or claim of confidentiality to the extent such might
otherwise prevent such accountants from providing such information to Lender or
discussing such matters with Lender.
10.3. Costs and Expenses.
Each Borrower agrees to pay service charges, analysis fees, and all costs
and expenses incidental to or in connection with this Agreement or any service
provided by Lender, the enforcement of Lender's rights in connection therewith,
any amendment or modification of this Agreement or any other loan documents, any
sale or attempted sale of any interest herein to a participant or co-lender, any
litigation, contest, dispute, proceeding or action in any way relating to the
Collateral or to this Agreement, whether any of the foregoing are incurred prior
to or after maturity, the occurrence of an Event of Default, or the rendering of
a judgment. Such costs shall include, but not be limited to, fees and
out-of-pocket expenses of Lender's counsel, recording fees, inspection fees,
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revenue stamps and note and mortgage taxes, due diligence and audit expenses
(up-front and periodic), and legal fees. The provisions of this Section 10.3
shall survive the termination of this Agreement.
10.4. Survival, Successors and Assigns.
All warranties, representations, and covenants made by any Borrower herein
or on any certificate or other instrument delivered by it or on its behalf under
this Agreement shall be considered to have been relied upon by Lender and shall
survive the closing of the Loan regardless of any investigation made by Lender
on its behalf. This Agreement shall inure to the benefit of and be binding upon
the heirs, successors and assigns of each of the parties.
10.5. Amendment and Waiver, Duplicate Originals.
All references to this Agreement shall also include all amendments,
extensions, renewals, modifications, and substitutions thereto and thereof made
in writing and executed by each Borrower and Lender. This Agreement may be
amended, and the observance of any term of this Agreement may be waived, with
(and only with) the written consent of each Borrower and Lender; provided,
however, that nothing herein shall change Lender's sole discretion or good faith
discretion (as set forth elsewhere in this Agreement) to make advances,
determinations, decisions or to take or refrain from taking other actions. No
delay or failure or other course of conduct by Lender in the exercise of any
power or right shall operate as a waiver thereof; nor shall any single or
partial exercise of the same preclude any other or further exercise thereof, or
the exercise of any other power or right. Two or more duplicate originals of
this Agreement may be signed by the parties, each of which shall be an original
but all of which together shall constitute one and the same instrument.
10.6. Accounting Treatment and Fiscal Year.
No Borrower shall change its fiscal year for accounting or tax purposes
from a period consisting of the twelve (12) month period ending on December 31
of each calendar year, and shall not make any change in accounting treatment and
reporting practices or tax reporting treatment except as required by GAAP or law
and disclosed in writing to Lender at the address set forth herein.
10.7. Enforceability and Governing Law.
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction, as to such jurisdiction, shall be inapplicable or ineffective to
the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. No delay or omission on the part of Lender in exercising any
right shall operate as a waiver of such right or any other right. All of
Lender's rights and remedies, whether evidenced hereby or by any
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other agreement or instrument, shall be cumulative and may be exercised
singularly or concurrently. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio (without giving effect to the
conflict of laws rules thereof). Each Borrower agrees that any legal suit,
action or proceeding arising out of or relating to this Agreement may be
instituted in a state or federal court of appropriate subject matter
jurisdiction in the State of Ohio, waives any objection which it may have now or
hereafter to the venue of any suit, action or proceeding, and irrevocably
submits to the jurisdiction of any such court in any such suit, action or
proceeding.
10.8. Confidentiality.
Lender shall hold all non-public information obtained pursuant to the
requirements hereof and identified as such by any Borrower in accordance with
Lender's customary procedures for handling confidential information of this
nature and in accordance with safe and sound banking practices, and in any event
may make disclosures as required or requested by any governmental authority or
any representative thereof, or pursuant to any legal process, or to its
accountants, lawyers and other advisors.
10.9. Effective Date.
This Agreement shall be binding and deemed effective when executed by each
Borrower and Lender whose signature is provided for on the signature pages
hereof.
10.10. Section Headings, Interpretations and Severability.
(a) Headings and numbers have been set forth herein for convenience only.
Unless the contrary is compelled by the context, everything contained in each
Section applies equally to this entire Agreement.
(b) Neither this Agreement nor any uncertainty or ambiguity herein shall be
construed or resolved against Lender or any Borrower, whether under any rule of
construction or otherwise. On the contrary, this Agreement has been reviewed by
all parties and shall be construed and interpreted according to the ordinary
meaning of the words used so as to accomplish fairly the purposes and intentions
of all parties hereto.
(c) Each provision of this Agreement shall be severable from every other
provision of this Agreement for the purpose of determining the legal
enforceability of any specific provision.
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10.11. Counterparts; Facsimile Execution.
This Agreement may be executed in any number of counterparts and by
different parties on separate counterparts, each of which, when executed and
delivered, shall be deemed to be an original, and all of which, when taken
together, shall constitute but one and the same Agreement. Delivery of an
executed counterpart of this Agreement by facsimile shall be equally as
effective as delivery of an original executed counterpart of this Agreement. Any
party delivering an executed counterpart of this Agreement by facsimile also
shall deliver an original executed counterpart of this Agreement but the failure
to deliver an original executed counterpart shall not affect the validity,
enforceability, and binding effect of this Agreement. The foregoing shall apply
to each other Loan Document mutatis mutandis.
10.12. Revival and Reinstatement of Obligations.
If the incurrence or payment of the Obligations by any Borrower or the
transfer to Lender of any property should for any reason subsequently be
declared to be void or voidable under any state or federal law relating to
creditors' rights, including provisions of the Bankruptcy Code relating to
fraudulent conveyances, preferences, or other voidable or recoverable payments
of money or transfers of property (collectively, a "Voidable Transfer"), and if
Lender is required to repay or restore, in whole or in part, any such Voidable
Transfer, or elects to do so upon the reasonable advice of its counsel, then, as
to any such Voidable Transfer, or the amount thereof that Lender is required or
elects to repay or restore, and as to all reasonable costs, expenses and
attorneys' fees of Lender related thereto, the liability of each Borrower
automatically shall be revived, reinstated, and restored and shall exist as
though such Voidable Transfer had never been made.
10.13. Integration.
This Agreement, together with the other Loan Documents, reflects the entire
understanding of the parties with respect to the transactions contemplated
hereby and shall not be contradicted or qualified by any other agreement, oral
or written, before the date hereof.
10.14. Waiver of Right to Trial by Jury.
EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (1) ARISING UNDER THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH, OR (2) IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR
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THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.
10.15. No Consequential Damages.
No claim may be made by any Borrower, or any of its officers, directors,
managers, or agents against Lender or its affiliates, directors, officers,
employees, attorneys or agents for any special, indirect, punitive, or
consequential damages in respect of any breach or wrongful conduct (whether the
claim therefor is based in contract, tort or duty imposed by law) in connection
with, arising out of or in any way related to the transactions contemplated and
relationship established by this Agreement, or any act, omission or event
occurring in connection therewith, and each Borrower and the Guarantors hereby
waive, release and agree not to xxx upon any such claim for any such damages,
whether or not accrued and whether or not known or suspected to exist in its
favor.
10.16. Indemnity.
Each Borrower and Guarantor, jointly and severally, agree to indemnify
Lender from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses and disbursements of any
kind or nature whatsoever (including, without limitation, fees and disbursements
of counsel) which may be imposed on, incurred by, or asserted against Lender in
any litigation, proceeding or investigation instituted or conducted by any
governmental agency or instrumentality or any other person or entity with
respect to any aspect of, or any transaction contemplated by, or referred to in,
or any matter related to, this Agreement, whether or not Lender is a party
thereto, except to the extent that any of the foregoing arises out of the gross
negligence or willful misconduct of Lender, as determined in a final,
non-appealable judgment by a court of competent jurisdiction. The indemnities
provided for in this Section 10.16 shall survive the termination of this
Agreement and the indefeasible payment of the Loan in full.
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Each of the parties has signed this Agreement as of the date set forth in
the preamble above.
BORROWERS:
GREAT LAKES CAPITAL ACCEPTANCE LLC
By: /s/ Xxxxxx Xxxxxxxx XX
----------------------------------------------
Its: Manager
Notice Address: (same as below)
GREAT LAKES FUNDING I, LLC
By: /s/ Xxxxxx Xxxxxxxx XX
----------------------------------------------
Its: Manager
Notice Address;
00 Xxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxx XX
Facsimile: (000)000-0000
Confirmation: (000)000-0000
with a copy to:
Xxxxxx X. Xxxxx, Esq.
Levenfeld Xxxxxxxxxx
00 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000)000-0000
Confirmation: (000)000-0000
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LENDER:
TEXTRON FINANCIAL CORPORATION
By:
----------------------------------------------
Its: Assistant Vice President
****
with a copy to:
****
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