EXHIBIT 10.01
AMENDED AND RESTATED
ASSET PURCHASE AGREEMENT
This AMENDED AND RESTATED ASSET PURCHASE AGREEMENT (this "Agreement"),
dated as of January 8, 1998, is entered into among Monaco Finance, Inc., a
Colorado corporation ("Monaco"), Pacific USA Holdings Corp., a Texas
corporation ("Pacific USA"), Pacific Southwest Bank, a federally chartered
savings bank ("PSB"), NAFCO Holding Company, LLC, a Delaware limited liability
company ("NAFCO"), Advantage Funding Group, Inc., a Delaware corporation
("Advantage"), and PCF Service, LLC, a Delaware limited liability company
("PCF").
WHEREAS Monaco, Pacific USA, NAFCO, and Advantage have previously entered
into that certain Asset Purchase Agreement, dated as of September 30, 1997 (as
amended or modified to the date hereof, the "Original Agreement");
WHEREAS the parties to the Original Agreement desire to amend and restate
the Original Agreement in its entirety on the terms and conditions contained
herein; and
WHEREAS, in connection with such amendment and restatement, the parties
to the Original Agreement desire to have PSB and PCF become parties to this
Agreement, and each of PSB and PCF desires to become a party to this
Agreement, on the terms and conditions contained herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. In addition to the terms defined elsewhere in
this Agreement, the following terms, when used herein, will have the following
meanings:
"Acquired Loans" means the NAFCO Loans and the Advantage Loans.
"ADA Capital Corporation" means ADA Capital Corporation, a New York
corporation.
"ADA Equity Interest" means one hundred percent (100%) of the equity
interests owned by PCF in ADA Capital Corporation.
"Advantage Loan Purchase Agreement" means a loan purchase agreement,
substantially in the form of EXHIBIT A-1 attached hereto, relating to the
Advantage Loans among Monaco, Pacific USA, PSB, and Advantage.
"Advantage Preferred Shares" means the shares of Preferred Stock that may
be issued to Advantage (or its designee) pursuant to Section 2.2(b)(ii)(B).
"Adverse Claim" means a claim of ownership or any lien, security
interest, title retention, trust or other charge or encumbrance, or other type
of preferential arrangement having the effect of a lien or security interest
upon or with respect to any of the properties of a transferring party other
than in favor of Monaco.
"Asset Purchase Documents" means all agreements, documents, and
instruments entered into by any of the parties hereto in connection with the
transactions contemplated hereby.
"Auto Loan" means a consumer Automobile loan, including installment sales
contracts, arising from the sale of Automobiles.
"Auto Loan Balance" means, at any time any determination thereof is to be
made: (a) the aggregate outstanding principal balance of the Acquired Loans
as of the close of business on the Cut-Off Date, determined after deduction of
all payments of principal received with respect to the Acquired Loans on or
before the close of business on the Cut-Off Date; minus (b) the principal
balance (as of the Cut-Off Date) of any Acquired Loans that have been
repurchased pursuant to the terms of either of the Loan Purchase Agreements.
"Automobiles" means new and used automobiles and light trucks (i.e.,
light duty trucks with a maximum load capacity of 2,000 pounds), the purchase
of which the related Obligors financed by Auto Loans.
"Business Day" means any day, other than a Saturday or a Sunday, or
another day on which commercial banks in the States of New York, Colorado, or
Texas are required, or authorized by law, to close.
"Certificate of Designation" means a certificate of designation of Monaco
respecting the rights, preferences, privileges, and restrictions pertaining to
the Preferred Stock, such certificate of designation to be in the form of
EXHIBIT C-1 attached hereto.
"Class A Common Stock" means the Class A Common Stock of Monaco, par
value $.01 per share.
"Commission" means the Securities and Exchange Commission.
"Cut-Off Date" means December 19, 1997.
"Designated NAFCO Operations" means the operations represented by (a) any
loan sale agreements that are executed by Monaco during the period beginning
on the Closing Date and ending six (6) months following the Closing Date with
the prospects who are listed on SCHEDULE A, (b) any loan sale agreements
that are executed by Monaco or, if and only if the ADA Equity Interest is
assigned to Monaco pursuant to the terms hereof, ADA Capital Corporation
during the period beginning on the execution of this Agreement and ending six
(6) months following the Closing Date with NADA associations, including those
who are listed in SCHEDULE B, and (c) the Unrestricted Warrants.
"Determination Date" means: (a) if Monaco receives the Monaco
Shareholders' Approval and the parties hereto receive the HSR Approval, the
date which is the later to occur of: (i) the HSR Date; and (ii) the Monaco
Shareholders' Approval Date; (b) if Monaco receives the Monaco Shareholders'
Approval but the parties hereto receive the HSR Denial, the date which is the
later to occur of: (i) the HSR Date; and (ii) the Monaco Shareholders'
Approval Date; or (c) if Monaco does not receive the Monaco Shareholders'
Approval, the Monaco Shareholders' Approval Date.
"Exchange Act" means the Securities and Exchange Act of 1934, and the
rules and regulations promulgated thereunder, as amended.
"Federal Funds Rate" means, for any day, the rate, per annum (rounded
upwards, if necessary, to the nearest 0.01%), equal to the weighted average of
the rates of overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers on such day as published by
the Federal Reserve Bank of New York on the Business Day immediately following
such day; provided that, if the day for which such rate is to be determined
is not a Business Day, then the "Federal Funds Rate" for such day shall be
such rate on such transactions on the immediately following Business Day as
published on the Business Day immediately following such Business Day.
"HSR Approval" means either: (a) the express written approval by the
United States Department of Justice and Federal Trade Commission of the
transactions referred to in the HSR Required Filings; or (b) the expiration of
all waiting periods respecting the HSR Required Filings without objection by
the United States Department of Justice and/or the Federal Trade Commission.
"HSR Date" means the first Business Day following the date on which the
parties hereto have received either the HSR Approval or the HSR Denial.
"HSR Denial" means the final express denial by the United States
Department of Justice and/or the Federal Trade Commission of the transactions
referred to in the HSR Required Filings.
"HSR Required Filings" means all filings required to be made by the
parties hereto (or any of them) under the Xxxx-Xxxxx-Xxxxxx Act with respect
to the Stock Issuances.
"Interest Rate" means, for any date, the rate, per annum, equal to the
Federal Funds Rate plus 2.21%.
Loan Loss Reimbursement Agreement" means a Loan Loss Reimbursement
Agreement executed by PSB, NAFCO, and Advantage in favor of Monaco (or its
designee) in the form attached hereto as EXHIBIT L-1, together with all
exhibits and schedules thereto.
"Loan Purchase Agreements" means, collectively, the NAFCO Loan Purchase
Agreement and the Advantage Loan Purchase Agreement.
"Monaco/Advantage Note" means a promissory note, substantially in the
form of EXHIBIT M-1 attached hereto, evidencing the obligation of Monaco to
pay to Advantage (to the extent required by, and in accordance with, Section
2.2(b)(ii)) the balance of the purchase price for the Advantage Loans.
"Monaco/Advantage Registration Rights Agreement" means a registration
rights agreement, substantially in the form of EXHIBIT M-2 attached hereto,
between Monaco and Advantage (or its designee).
"Monaco/ANO Note I" means a promissory note, substantially in the form of
EXHIBIT M-1 attached hereto, evidencing the obligation of Monaco to pay to
NAFCO or its designee (to the extent required by, and in accordance with,
Section 2.2(c)(ii)) an amount equal to two and one-half (2 ) times the
Pre-Tax Earnings for such calendar year.
"Monaco/ANO Note II" means a promissory note, substantially in the form
of EXHIBIT M-1 attached hereto, evidencing the obligation of Monaco to pay
to NAFCO or its designee (to the extent required by, and in accordance with,
Section 2.2(c)(ii)) an amount equal to two and one-half (2 ) times the
Pre-Tax Earnings for such calendar year.
"Monaco/NAFCO Note" means a promissory note, substantially in the form of
EXHIBIT M-1 attached hereto, evidencing the obligation of Monaco to pay to
NAFCO or its designee (to the extent required by, and in accordance with,
Section 2.2(a)(ii)) the balance of the purchase price for the NAFCO Loans.
"Monaco/NAFCO Registration Rights Agreement" means a registration rights
agreement, substantially in the form of EXHIBIT M-3 attached hereto, between
Monaco and NAFCO (or its designee).
"Monaco Pledge Agreement" means a pledge agreement, substantially in the
form of EXHIBIT M-4 attached hereto, between Monaco, as pledgor, and PSB,
NAFCO, and Advantage (or their respective designees), as secured parties.
"Monaco/PSB Note" means a promissory note, substantially in the form of
EXHIBIT M-1 attached hereto, evidencing the obligation of Monaco to pay to
PSB or its designee (to the extent required by, and in accordance with,
Section 2.3), an amount equal to two percent (2%) of the Auto Loan Balance
as of the Cut-Off Date.
"Monaco/PSB Registration Rights Agreement" means a registration rights
agreement, substantially in the form of EXHIBIT M-5 attached hereto, between
Monaco and PSB (or its designee).
"Monaco Shareholders' Approval" means the approval by the shareholders of
Monaco of the Stock Issuances.
"Monaco Shareholders' Approval Date" means the day which is the first
Business Day immediately following the date on which the meeting of the
shareholders of Monaco takes place at which Monaco either receives or fails to
receive the Monaco Shareholders' Approval.
"NAFCO Common Shares" means the shares of Class A Common Stock that may
be issued to NAFCO (or its designee) pursuant to Sections 2.2(c)(ii) and
2.2(c)(iii).
"NAFCO Loan Purchase Agreement" means a loan purchase agreement,
substantially in the form of EXHIBIT N-1 attached hereto, relating to the
NAFCO Loans among Monaco, Pacific USA, PSB, and NAFCO.
"NAFCO Loan Originators" means any originator who is party to a loan sale
agreement described in clause (a) or (b) of the definition of "Designated
NAFCO Operations" herein.
"NAFCO Preferred Shares" means the shares of Preferred Stock that may be
issued to NAFCO (or its designee) pursuant to Section 2.2(a)(ii)(A).
"NAFCO Shares" means, collectively, the NAFCO Common Shares and the NAFCO
Preferred Shares.
"NASDAQ" means the Nasdaq National Market System.
"Obligor" means, with respect to any Auto Loan, the Person primarily
obligated to make payments in respect thereto.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, limited liability company, trust,
association, joint venture, governmental authority or any other entity of
whatever nature.
"Post-Closing Loans" means Auto Loans purchased by Monaco or its
affiliates from NAFCO Loan Originators subsequent to the Closing Date.
"Preferred Stock" means non-voting, no par value 8% Cumulative
Convertible Preferred Stock, Series 1997-1 of Monaco, having the rights,
preferences, privileges, and restrictions set forth in the Certificate of
Designation.
"Pre-Tax Earnings" means for any calendar year during the Pricing Period,
the aggregate of the net income of the Designated NAFCO Operations determined
in accordance with generally accepted accounting principles and based on
audited financial statements of Monaco, except that solely for purposes of
calculation of such amount, (a) there shall be excluded any gain or loss
constituting federal or state income taxes; (b) no deduction will be made for
amortization of goodwill; (c) no deduction will be made for interest on funds
advanced by Monaco for the Designated NAFCO Operations; (d) no deduction shall
be made for corporate assessments, overhead or charges by Monaco or any of its
affiliates, except for loan origination costs and servicing costs as more
fully set out below; (e) revenue shall include interest and fee income on
Post-Closing Loans, less any losses of principal as a result of defaulted
contracts, net of recoveries thereof, in excess of the loan loss reserve for
such loans, gain on sale attributable to securitizations of Post-Closing
Loans, subject to adjustment, if any, for future loss on the Post-Closing
Loans; (f) only if Monaco has effected an off-balance sheet securitization of
at least $30 million in principal amount of automobile loans primarily
consisting of automobile loans acquired in the ordinary course of its business
(i.e., automobile loans that were not acquired by Monaco in bulk loan purchase
transactions involving the purchase of multiple automobile loans in a single
transaction) there shall be included as net income an amount equal to the
product of the principal balance of any Post-Closing Loans which have not been
securitized as of December 31, 1999 multiplied by the pre-tax gain on sale on
Monaco's most recent securitization transaction (expressed as a percentage of
the principal balance of the automobile loans included in such
securitization), and excess servicing income, if any, relating to the
Post-Closing Loans, (g) direct expenses related to each revenue stream
referred to in (e) and (f) of this sentence will be deducted from gross
revenue to determine the earnings contribution of each revenue stream, such
direct expenses to consist of interest incurred by Monaco to acquire and
warehouse such loans, a one time application fee of $20 for each Post-Closing
Loan of the Designated NAFCO Operations; a one time loan boarding fee of $200
for credit, underwriting, and funding; and a monthly fee of 250 basis points
per annum on the average loans outstanding for servicing collection operations
for each Post-Closing Loan serviced by Monaco. Computations of gains-on-sales
with respect to securitizations shall be computed by Monaco and certified by
its outside auditors.
"Pricing Period" means the period of January 1, 1998 through December 31,
1999.
"PSB Shares" means the shares of Class A Common Stock that may be issued
to PSB or its designee pursuant to Section 2.3.
"Related Party" means any of Pacific USA, PSB, NAFCO, Advantage, and/or
PCF.
"Reimbursement Value" means an amount equivalent to two percent (2%)of
the Auto Loan Balance as of the Cut-Off Date. For example, if the Auto Loan
Balance on the Cut-Off Date is $100 million, the Reimbursement Value is 2% x
$100 million, or $2 million.
"Restricted Warrants" means those Warrants with respect to which there
exist restrictions on transfer to a third Person (including Monaco) that have
not been waived or rendered ineffective or inapplicable (by operation of law
or otherwise) in connection with the transfer of such Warrants to Monaco as
contemplated hereby, all of which, as of the Closing Date, are scheduled on
SCHEDULE R-1 attached hereto, which SCHEDULE R-1 also sets forth all
restrictions on the transfer of same.
"Securities Act" means the Securities Act of 1933, and the rules and
regulations promulgated thereunder, as amended.
"Stock Issuances" means the issuance by Monaco of all of the Transaction
Shares at the respective times contemplated by the terms of this Agreement.
"Transaction" means, collectively, all of the transactions contemplated
hereby.
"Transaction Shares" means, collectively, the Advantage Preferred Shares,
the NAFCO Shares, and the PSB Shares.
"Unrestricted Warrants" means all Warrants, other than Restricted
Warrants, that have been sold, assigned, transferred and conveyed to Monaco as
contemplated hereby, all of which, as of the Closing Date, are scheduled on
SCHEDULE U-1 attached hereto.
"Warrants" means, collectively, the stock and/or warrants held by NAFCO
or PCF in NAFCO Loan Originators, including the ADA Equity Interest.
ARTICLE 2 ARTICLE
PURCHASE AND SALE OF THE ASSETS PURCHASE AND SALE OF THE ASSETS
2.1 Sale and Purchase of Assets.
(a) NAFCO Loans. Subject to the terms and conditions of this
Agreement and the NAFCO Loan Purchase Agreement, NAFCO hereby agrees to sell,
convey, assign, transfer and deliver to Monaco on the Closing Date, and Monaco
hereby agrees to acquire, buy and accept, all of NAFCO's rights, title and
interest in and to all of the Auto Loans set forth on SCHEDULE 2.1(A)
attached hereto, which Auto Loans: (i) as of the Cut-Off Date, are not more
than fifty-nine (59) days past due with respect to any regularly scheduled
monthly payment from any Obligor thereon; and (ii) shall be listed on the
"Auto Loan Schedule" attached to the NAFCO Loan Purchase Agreement (such Auto
Loans are collectively referred to herein as the "NAFCO Loans").
(b) Advantage Loans. Subject to the terms and conditions of this
Agreement and the Advantage Loan Purchase Agreement, Advantage hereby agrees
to sell, convey, assign, transfer, and deliver to Monaco, and Monaco hereby
agrees to acquire, buy and accept, all of Advantage's rights, title, and
interest in and to the Auto Loans set forth on SCHEDULE 2.1(B) attached
hereto, which Auto Loans: (i) as of the Cut-Off Date, are not more than
fifty-nine (59) days past due with respect to any regularly scheduled monthly
payment from any Obligor thereon; and (ii) shall be listed on the "Auto Loan
Schedule" attached to the Advantage Loan Purchase Agreement (such Auto Loans
are collectively referred to herein as the "Advantage Loans").
(c) Warrants. Subject to the terms and conditions of this
Agreement, PCF hereby agrees to sell, convey, assign, transfer and deliver to
Monaco on the Closing Date, and Monaco hereby agrees to acquire, buy and
accept, all of PCF's rights, title and interest in and to all of the Warrants;
provided that, if, as of the Closing Date, there exist any Restricted
Warrants, each of NAFCO and PCF shall, from and after the Closing Date, use
its best efforts to cause the transfer of such Restricted Warrants to Monaco
in compliance with the applicable restrictions; provided further that PCF
shall not be deemed to have sold or transferred any Restricted Warrant(s)
until such time, if any, as such Restricted Warrant(s) become(s) Unrestricted
Warrant(s).
2.2 Purchase Price. Subject to the terms and conditions of this
Agreement and the Loan Purchase Agreements:
(a) NAFCO Loans. The purchase price payable by Monaco to NAFCO for
the NAFCO Loans shall be 96% of the outstanding principal balance of the NAFCO
Loans as of the Cut-Off Date, plus accrued and unpaid interest on each NAFCO
Loan through the Cut-Off Date, plus interest as provided in Section
2.2(a)(i), payable as follows:
(i) an amount equal to (A) 90% of the outstanding principal balance
of the NAFCO Loans as of the Cut-Off Date, plus (B) accrued and unpaid
interest on each NAFCO Loan through the Cut-Off Date, plus (C) interest on the
foregoing amounts from the Cut-Off Date to the Closing Date at the Interest
Rate, shall be payable in cash on the Closing Date; and
(ii) the balance of the purchase price for the NAFCO Loans shall be
payable by the issuance by Monaco to NAFCO (or its designee) on the
Determination Date of: (A) if Monaco does not receive the Monaco
Shareholders' Approval or the parties hereto receive the HSR Denial, the
Monaco/NAFCO Note; or (B) if Monaco receives the Monaco Shareholders' Approval
and the parties hereto receive the HSR Approval, that number of shares of
fully paid and non-assessable Preferred Stock equal to 6% of the outstanding
principal balance of the NAFCO Loans as of the Cut-Off Date, divided by $2.00.
(b) Advantage Loans. The purchase price payable by Monaco to
Advantage for the Advantage Loans shall be 96% of the outstanding principal
balance of the Advantage Loans as of the Cut-Off Date, plus accrued and unpaid
interest on each Advantage Loan through the Cut-Off Date, plus interest as
provided in Section 2.2(b)(i), payable as follows:
(i) an amount equal to (A) 90% of the outstanding principal balance
of the Advantage Loans as of the Cut-Off Date, plus (B) accrued and unpaid
interest on each Advantage Loan through the Cut-Off Date, plus (C) interest on
the foregoing amounts from the Cut-Off Date to the Closing Date at the
Interest Rate, shall be payable in cash on the Closing Date; and
(ii) the balance of the purchase price for the Advantage Loans shall
be payable by the issuance by Monaco to Advantage (or its designee) on the
Determination Date of: (A) if Monaco does not receive the Monaco
Shareholders' Approval or the parties hereto receive the HSR Denial, the
Monaco/Advantage Note; or (B) if Monaco receives the Monaco Shareholders'
Approval and the parties hereto receive the HSR Approval, that number of
shares of fully paid and non-assessable Preferred Stock equal to 6% of the
outstanding principal balance of the Advantage Loans as of the Cut-Off Date,
divided by $2.00.
(c) Additional Payments in Respect of Designated NAFCO Operations.
(i) For the period commencing on the Closing Date and ending December
31, 1999, Monaco will maintain a separate book of accounts for the Designated
NAFCO Operations to determine the Pre-Tax Earnings of the Designated NAFCO
Operations during each calendar year of the Pricing Period.
(ii) If (y) any Warrants have been transferred to Monaco pursuant to
Section 2.1(c) and/or any loan sale agreements referred to in clauses (a) and
(b) of the definition of "Designated NAFCO Operations" contained herein have
been entered into between the Closing Date and the date which is six months
thereafter and (z) there are any Pre-Tax Earnings from the Designated NAFCO
Operations for the 1998 calendar year, Monaco will issue to NAFCO or its
designee, on or before April 15, 1999: (A) if Monaco shall have received the
Monaco Shareholders' Approval and the parties hereto shall have received the
HSR Approval, that number of shares of Class A Common Stock equal to (1) two
and one/half (2 ) times the Pre-Tax Earnings for such calendar year, divided
by (2) the average of the daily closing sales price (or the last reported
closing sales price if on any trading day there shall have been no
transactions in such stock) per share of the Class A Common Stock listed on
the NASDAQ on the ten trading days immediately preceding January 1, 1999; or
(B) if Monaco shall not have received the Monaco Shareholders' Approval or the
parties hereto shall have received the HSR Denial, the Monaco/ANO Note I.
(iii) If (y) any Warrants have been transferred to Monaco pursuant to
Section 2.1(c) and/or any loan sale agreements referred to in clauses (a) and
(b) of the definition of "Designated NAFCO Operations" contained herein have
been entered into between the Closing Date and the date which is six months
thereafter and (z) there are any Pre-Tax Earnings from the Designated NAFCO
Operations for the 1999 calendar year, Monaco will issue to NAFCO or its
designee, on or before April 15, 2000: (A) if Monaco shall have received the
Monaco Shareholders' Approval and the parties hereto shall have received the
HSR Approval, that number of shares of Class A Common Stock equal to (x) two
and one/half (2 ) times the Pre-Tax Earnings for such calendar year, divided
by (y) the average of the daily closing sales price (or the last reported
closing sales price if on any trading day there shall have been no
transactions in such stock) per share of the Class A Common Stock listed on
the NASDAQ on the ten trading days immediately preceding January 1, 2000; or
(B) if Monaco shall not have received the Monaco Shareholders' Approval or the
parties hereto shall have received the HSR Denial, the Monaco/ANO Note II.
2.3 Loan Loss Reimbursement. PSB, a wholly owned subsidiary of
Pacific USA, NAFCO, and Advantage shall execute the Loan Loss Reimbursement
Agreement in favor of Monaco on the Closing Date. As consideration for such
Loan Loss Reimbursement Agreement, on the Determination Date: (a) if Monaco
shall have received the Monaco Shareholders' Approval and the parties hereto
shall have received the HSR Approval, then Monaco shall issue to and in the
name of PSB or its designee one share of Class A Common Stock for each $2.00
of Reimbursement Value; or (b) if Monaco shall not have received the Monaco
Shareholders' Approval or the parties hereto shall have received the HSR
Denial, then Monaco shall issue to PSB or its designee the Monaco/PSB Note.
ARTICLE 3
CLOSING
3.1 Time, Date and Place of Closing. The closing of the
Transaction (other than that portion of the Transaction consisting of the
Stock Issuances) and the deliveries required by Sections 3.5 through 3.9
(collectively, the "Closing"), shall be made at the offices of Xxxxxxx & Xxxxx
L.L.P., 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, at 10:00 a.m.
(Texas time), on January 8, 1998, or at such other place and time as the
parties hereto shall mutually agree (the "Closing Date").
3.2 Closing; Failed Closing.
(a) The Closing shall be subject to the satisfaction of all of the
conditions set forth in this Article III (to the extent not waived in
accordance with Section 7.5). The Closing shall not be deemed to have
occurred unless and until all of the conditions contained in this Article III
have been satisfied (or waived in accordance with Section 7.5).
(b) If the Closing does not occur for any reason on or before January
10, 1998, then the parties shall have no further obligations or liabilities to
each other under this Agreement or any of the other agreements, documents, or
instruments executed in connection herewith.
3.3 Conditions Relating to Pacific USA, PSB, NAFCO, Advantage, and
PCF. Consummation by each of Pacific USA, PSB, NAFCO, Advantage, and PCF of
the Transaction is subject to the fulfillment on or before the Closing Date of
each of the following conditions, any one or more of which may be waived in
whole or in part in accordance with Section 7.5 (and, at or prior to the
Closing, any of such parties may obtain a certificate of the President of
Monaco or such other evidence as it deems advisable as to the fulfillment of
the conditions in subparagraphs (a) through (c) below to the extent such
conditions relate to Monaco):
(a) The representations and warranties of Monaco con-tained in this
Agreement or in any certificate, schedule, exhibit or other agreement
delivered pursuant to the provisions of this Agreement shall be true in all
material respects as of the date when made
(b) Monaco shall have performed and complied in all material respects
with all covenants, agree-ments and conditions required by this Agreement to
be performed or complied with by it on or before the Closing Date.
(c) On the Closing Date there shall be no judgment, decree,
injunction, ruling or order of any court or governmental authority outstanding
against Monaco, Pacific USA, PSB, NAFCO, Advantage, or PCF which prohibits,
restricts or delays consumma-tion of the Transaction.
(d) Pacific USA and NAFCO shall have terminated any employment
contracts relating to NAFCO employees that have not been assumed by Monaco, on
terms satisfactory to Pacific USA and NAFCO.
(e) Monaco shall have obtained a commitment for financing of the
purchase of the Acquired Loans, in form and content acceptable to Pacific USA,
NAFCO and Advantage.
(f) NAFCO shall have received the consent of its members to the
Transaction.
3.4 Conditions Relating to Monaco. Consummation by Monaco of the
Transaction is subject to the fulfillment on or prior to the Closing Date of
each of the following conditions, any one or more of which may be waived in
whole or in part by Monaco in accordance with Section 7.5 (and, at or prior
to the Closing, Monaco may obtain a certificate of the President of Pacific
USA, PSB, NAFCO, Advantage, or PCF, as the case may be, or such other evidence
as it deems advisable as to the fulfillment of the following conditions):
(a) The representations and warranties of Pacific USA, PSB, NAFCO,
Advantage, and PCF contained in this Agreement or in any certificate,
schedule, exhibit or other agreement delivered pursuant to one or more of the
provisions of this Agreement, shall be true in all material respects as of the
date when made.
(b) Pacific USA, PSB, NAFCO, Advantage, and PCF shall have per-formed
and complied in all material respects with all covenants, agreements and
conditions required by this Agreement to be performed or complied with by them
on or prior to the Closing Date.
(c) On the Closing Date there shall be no judgment, decree,
injunction, ruling or order of any court or governmental authority outstanding
against Monaco, Pacific USA, PSB, NAFCO, Advantage, and/or PCF which
prohibits, restricts or delays consumma-tion of the Transaction.
(d) Monaco shall have obtained a commitment for financing of the
purchase of the Acquired Loans, in form and content acceptable to Monaco.
(e) Monaco shall have completed its due diligence and shall be
satisfied with the results of its due diligence.
(f) As of the Cut-Off Date, no more than twelve percent (12%) of the
aggregate number of Acquired Loans will be between thirty-one (31) and
fifty-nine (59) days past due with respect to any regularly scheduled monthly
payment from the related Obligors.
3.5 Deliveries by Monaco. Monaco hereby covenants and agrees to
deliver or cause to be delivered the following on or before the Closing Date,
and it shall be a condition to the obligations of Pacific USA, PSB, NAFCO,
Advantage and PCF under this Agree-ment that all of the following are
delivered on or before the Closing Date:
(a) The NAFCO Loan Purchase Agreement.
(b) The Advantage Loan Purchase Agreement.
(c) A Servicing Agreement (substantially in the form of EXHIBIT
3.5(C) attached hereto, the "Advantage Servicing Agreement") between Monaco
and Advantage, as servicer, pursuant to which Advantage will service the
Advantage Loans on an interim basis from the Closing Date through June 30,
1998, at which time Monaco shall assume overall servicing responsibilities.
(d) A Servicing Agreement (substantially in the form of EXHIBIT
3.5(D) attached hereto, the "NAFCO Servicing Agreement") between Monaco and
NAFCO, as servicer, pursuant to which NAFCO will service the NAFCO Loans on an
interim basis, from the Closing Date through June 30, 1998, at which time
Monaco shall assume overall servicing responsibilities.
(e) The Monaco Pledge Agreement.
(f) The Loan Loss Reimbursement Agreement.
(g) A certificate of the Secretary or an Assistant Secretary of
Monaco certifying as to (i) the actions referred to in Section 4.1(b), (ii)
a true and correct copy of the Certificate of Incorporation of Monaco, (iii) a
good standing certificate with respect to Monaco, dated as of a recent date,
and (iv) the authorization and incumbency of the officers of Monaco that
executed this Agreement and the other agreements, instruments and certificates
to be delivered by Monaco pursuant to this Agreement.
(h) The opinion of counsel for Monaco, in the form agreed to between
Monaco's counsel, Pacific USA, PSB, NAFCO, Advantage, and PCF.
3.6 Deliveries by NAFCO. NAFCO hereby covenants and agrees to
deliver or cause to be delivered the following on or before the Closing Date,
subject to the other terms and conditions of this Agreement, and it shall be a
condition to Monaco's obligations under this Agreement that all of the
following are delivered on or before the Closing Date:
(a) The NAFCO Loan Purchase Agreement.
(b) The NAFCO Servicing Agreement.
(c) The Loan Loss Reimbursement Agreement and the "Letters of Credit"
(as that term is defined in the Loan Loss Reimbursement Agreement).
(d) The Monaco Pledge Agreement.
(e) A certificate of the Secretary or an Assistant Secretary of NAFCO
certifying as to (i) the actions referred to in Section 4.3(b), (ii) a true
and correct copy of the Certificate of Formation of NAFCO, and (iii) the
authorization and incumbency of the officers of NAFCO that executed this
Agreement and the other agreements, instruments and certificates to be
delivered by NAFCO pursuant to this Agreement.
(f) A good standing certificate with respect to NAFCO, dated as of a
recent date.
(g) The opinion of counsel for NAFCO, in the form agreed to between
Monaco and NAFCO.
3.7 Deliveries by Advantage. Advantage hereby covenants and agrees
to deliver or cause to be delivered the following on or before the Closing
Date, subject to the other terms and conditions of this Agreement, and it
shall be a condition to Monaco's obligations under this Agreement that all of
the following are delivered on or before the Closing Date:
(a) The Advantage Loan Purchase Agreement.
(b) The Advantage Servicing Agreement.
(c) The Loan Loss Reimbursement Agreement and the "Letters of Credit"
(as that term is defined in the Loan Loss Reimbursement Agreement).
(d) The Monaco Pledge Agreement.
(e) The certificate of the Secretary or an Assistant Secretary of
Advantage certifying as to (i) the actions referred to in Section 4.4(b),
(ii) a true and correct copy of the Certificate of Incorporation of Advantage,
and (iii) the authorization and incumbency of the officers of Advantage that
executed this Agreement and the other agreements, instruments and certificates
to be delivered by Advantage pursuant to this Agreement.
(f) A good standing certificate with respect to Advantage, dated as
of a recent date.
(g) The opinion of counsel for Advantage, in the form agreed to
between Advantage's counsel and Monaco.
3.8 Deliveries by Pacific USA. Pacific USA hereby covenants and
agrees to deliver or cause to be delivered the following on or before the
Closing Date, subject to the other terms and conditions of this Agreement, and
it shall be a condition to Monaco's obligations under this Agreement that all
of the following are delivered on or before the Closing Date:
(a) The Loan Purchase Agreements.
(b) A certificate of the Secretary or an Assistant Secretary of
Pacific USA certifying as to (i) the actions referred to in Section 4.2(b),
(ii) a true and correct copy of the Certificate of Incorporation of Pacific
USA, and (iii) the authorization and incumbency of the officers of Pacific USA
that executed this Agreement and the other agreements, instruments and
certificates to be delivered by Pacific USA pursuant to this Agreement.
(c) A good standing certificate with respect to Pacific USA, dated as
of a recent date.
(d) The opinion of counsel for Pacific USA, in the form agreed to
between Pacific USA's counsel and Monaco.
3.9 Deliveries by PSB. PSB hereby covenants and agrees to deliver
or cause to be delivered the following on or before the Closing Date, subject
to the other terms and conditions of this Agreement, and it shall be a
condition to Monaco's obligations under this Agreement that all of the
following are delivered on or before the Closing Date:
(a) The Loan Purchase Agreements.
(b) The Loan Loss Reimbursement Agreement and the "Letters of Credit"
(as that term is defined in the Loan Loss Reimbursement Agreement).
(c) The Monaco Pledge Agreement.
(d) A certificate of the Secretary or an Assistant Secretary of PSB
certifying as to (i) the actions referred to in Section 4.5(b), (ii) a true
and correct copy of the Federal Stock Charter of PSB, and (iii) the
authorization and incumbency of the officers of PSB that executed this
Agreement and the other agreements, instruments and certificates to be
delivered by PSB pursuant to this Agreement.
(e) A good standing certificate with respect to PSB, dated as of a
recent date.
(f) The opinion of counsel for PSB, in the form agreed to between
PSB's counsel and Monaco.
3.10 Deliveries by PCF. PCF hereby covenants and agrees to deliver
or cause to be delivered the following on or before the Closing Date, subject
to the other terms and conditions of this Agreement, and it shall be a
condition to Monaco's obligations under this Agreement that all of the
following are delivered on or before the Closing Date:
(a) A certificate of the Secretary or an Assistant Secretary of PCF
certifying as to (i) the actions referred to in Section 4.6(b), (ii) a true
and correct copy of the Certificate of Formation of PCF, and (iii) the
authorization and incumbency of the officers of PCF that executed this
Agreement and the other agreements, instruments and certificates to be
delivered by PCF pursuant to this Agreement.
(b) A good standing certificate with respect to PCF, dated as of a
recent date.
(c) The opinion of counsel for PCF, in the form agreed to between
PCF's counsel and Monaco.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of Monaco. Monaco hereby
represents and warrants to Pacific USA, PSB, NAFCO, Advantage, and PCF (all
such representations and warranties being made as of the Closing Date, except
as otherwise specifically provided) as follows:
(a) Organization and Good Standing. Monaco is a corporation duly
organized, validly existing and in good standing under the law of the State of
Colorado and is qualified to transact business in each State where the nature
of its business requires it to qualify, except to the extent that the failure
to so qualify would not in the aggregate materially adversely affect the
ability of Monaco to perform its obligations hereunder.
(b) Authorization. Monaco has the power, authority and legal right
to execute, deliver and perform under the terms of this Agreement and the
execution, delivery and performance of this Agreement has been duly authorized
by Monaco by all necessary corporate action.
(c) Binding Obligation. This Agreement, assuming the due
authorization, execution and delivery by the other parties hereto, constitutes
a legal, valid and binding obligation of Monaco, enforceable against Monaco in
accordance with its terms except that (A) such enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
(whether statutory, regulatory or decisional) now or hereafter in effect
relating to creditors' rights generally and (B) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to certain equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought, whether a proceeding at law or in
equity.
(d) No Violation. The consummation of the transactions
contemplated by the fulfillment of the terms of this Agreement will not
conflict with, result in any breach of any of the terms and provisions of or
constitute (with or without notice, lapse of time or both) a default under the
organizational documents or bylaws of Monaco, or any indenture, agreement,
mortgage, deed of trust or other instrument to which Monaco is a party or by
which it is bound, or in the creation or imposition of any lien upon any of
its properties pursuant to the terms of such indenture, agreement, mortgage,
deed of trust or other such instrument, or violate any law, or any order, rule
or regulation applicable to Monaco of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over Monaco or any of its properties.
(e) Approvals. All approvals, authorizations, consents, orders or
other actions of any person, or of any court, governmental agency or body or
official, required in connection with the execution and delivery of this
Agreement have been or will be taken or obtained on or prior to the Closing
Date.
(f) Transaction Shares. All of the Transaction Shares have been
duly authorized, and upon delivery thereof to NAFCO (or its designee),
Advantage (or its designee) and PSB (or its designee) following the receipt by
Monaco of the Monaco Shareholders' Approval in accordance with the provisions
hereof, shall be validly issued, fully paid and non-assessable, free and clear
of all pledges, liens, encumbrances and restrictions, except restrictions on
transfer arising under applicable securities laws, rules and regulations.
(g) Capital Stock. On the date hereof, the authorized capital
stock of Monaco consists of 17,750,000 shares of Class A Common Stock, of
which 7,140,379 shares are issued and outstanding, 2,250,000 shares of Class B
Common Stock, of which 1,311,715 shares are issued and outstanding, and
5,000,000 shares of preferred stock, no par value, of which no shares are
issued and outstanding. Monaco shall not issue any shares of preferred stock
prior to the Closing Date.
(h) Securities Laws. Under the circumstances contemplated by this
Agreement and assuming the accuracy of the representations of NAFCO,
Advantage, and PSB in Sections 4.3(f),and 4.4(f) and 4.5(f), respectively,
the offer, issuance, sale and delivery of the Transaction Shares will not,
under current laws and regulations, require compliance with the prospectus
delivery or registration requirements of the Securities Act.
(i) SEC Filings. As of the date hereof, Monaco has made all
filings that it is required to make with the Commission under the Exchange Act
(the "Company SEC Reports") and will make all such filings as are required in
connection with the Transaction. As of their respective dates, the Company
SEC Reports did not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(j) Private Resale. Monaco will acquire the Warrants described in
Section 2.1(a)(iii) for investment, and not for the interest of any other
person, not for resale to any other person and not with a view to or in
connection with any sale or distribution. Monaco acknowledges that the
Warrants are "restricted securities" as defined in Rule 144(a)(3) under the
Securities Act and subject to substantial restrictions on transfer, and that
the certificates representing the Warrants will bear restrictive legends. In
addition, Monaco is an "accredited investor" as that term is defined in Rule
501(a) of Regulation D under the Securities Act. Monaco has had access to the
books and records of the issuers of the Warrants and has received from such
issuers and other sources all information required by it in order to make an
informed investment decision with respect to the Warrants.
(k) No Default or Breach. Monaco is not in default or in breach of
any agreement or instrument to which Monaco is a party or by which it is
bound, except for defaults or breaches which in the aggregate would not
materially hinder or impair the consummation of the Transaction.
(l) No Misstatement, Etc. Monaco has not made any misstatements of
fact or omitted to state any fact necessary or desirable to make complete,
accurate, and not misleading every representation or warranty set forth in
this Agreement.
(m) No Brokers. No broker, finder, agent or similar intermediary
(other than SPGC, LLC and The Stone Pine Companies) has acted for or on behalf
of Monaco in connection with the Transaction, and no such Person (other than
SPGC, LLC and The Stone Pine Companies) is or will be entitled to any
broker's, finders or similar fee or other commission in connection therewith
based on any agreement, arrangement or understanding with Monaco or any action
taken by Monaco, and the responsibility to pay any or all of such amounts to
SPGC, LLC and/or The Stone Pine Companies is and shall be the sole
responsibility of Monaco.
4.2 Representations and Warranties of Pacific USA. Pacific USA
hereby represents and warrants to Monaco (all such representations and
warranties being made as of the Closing Date, except as otherwise specifically
provided) as follows:
(a) Organization and Good Standing. Pacific USA is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Texas and is qualified to transact business in each State where the
nature of its business requires it to qualify, except to the extent that the
failure to so qualify would not in the aggregate materially adversely affect
the ability of Pacific USA to perform its obligations hereunder.
(b) Authorization. Pacific USA has the power, authority and legal
right to execute, deliver and perform under the terms of this Agreement and
the execution, delivery and performance of this Agreement has been duly
authorized by Pacific USA by all necessary corporate action.
(c) Binding Obligation. This Agreement, assuming due
authorization, execution and delivery by Monaco, constitutes a legal, valid
and binding obligation of Pacific USA, enforceable against Pacific USA in
accordance with its terms except that (A) such enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
(whether statutory, regulatory or decisional) now or hereafter in effect
relating to creditors' rights generally and (B) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to certain equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought, whether a proceeding at law or in
equity.
(d) No Violation. The consummation of the transactions
contemplated by the fulfillment of the terms of this Agreement will not
conflict with, result in any breach of any of the terms and provisions of or
constitute (with or without notice, lapse of time or both) a default under the
organizational documents or bylaws of Pacific USA, or any indenture,
agreement, mortgage, deed of trust or other instrument to which Pacific USA is
a party or by which it is bound, or in the creation or imposition of any lien
upon any of its properties pursuant to the terms of such indenture,
agreement, mortgage, deed of trust or other such instrument, or violate any
law, or any order, rule or regulation applicable to Pacific USA of any court
or of any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over Pacific USA or any of
its properties.
(e) Approvals. All approvals, authorizations, consents, orders or
other actions of any person, or of any court, governmental agency or body or
official, required in connection with the execution and delivery of this
Agreement have been or will be taken or obtained on or prior to the Closing
Date.
(f) No Default or Breach. Pacific USA is not in default or in
breach of any agreement or instrument to which Pacific USA is a party or by
which it is bound, except for defaults or breaches which in the aggregate
would not materially hinder or impair the consummation of the Transaction.
(g) No Misstatements, Etc.. Pacific USA has not made any
misstatements of fact or omitted to state any fact necessary or desirable to
make complete, accurate, and not misleading every representation or warranty
set forth in this Agreement.
(h) No Brokers. No broker, finder, agent or similar intermediary
has acted for or on behalf of Pacific USA in connection with the Transaction,
and no such Person is or will be entitled to any broker's, finders or similar
fee or other commission in connection therewith based on any agreement,
arrangement or understanding with Pacific USA or any action taken by Pacific
USA.
(i) General. The NAFCO Loans, the Advantage Loans, and the
Warrants do not constitute substantially all of the assets of Pacific USA.
4.3 Representations and Warranties of NAFCO. NAFCO hereby
represents and warrants to Monaco (all such representations and warranties
being made as of the Closing Date, except as otherwise specifically provided)
as follows:
(a) Organization and Good Standing. NAFCO is a limited liability
company duly organized, validly existing and in good standing under the laws
of the State of Delaware and is qualified to transact business in each State
where the nature of its business requires it to qualify, except to the extent
that the failure to so qualify would not in the aggregate materially adversely
affect the ability of NAFCO to perform its obligations hereunder.
(b) Authorization. NAFCO has the power, authority and legal right
to execute, deliver and perform under the terms of this Agreement and the
execution, delivery and performance of this Agreement has been duly
authorized by NAFCO by all necessary corporate action.
(c) Binding Obligation. This Agreement, assuming due
authorization, execution and delivery by Monaco, constitutes a legal, valid
and binding obligation of NAFCO, enforceable against NAFCO in accordance with
its terms except that (A) such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws (whether
statutory, regulatory or decisional) now or hereafter in effect relating to
creditors' rights generally and (B) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to certain
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought, whether a proceeding at law or in equity.
(d) No Violation. The consummation of the transactions
contemplated by the fulfillment of the terms of this Agreement will not
conflict with, result in any breach of any of the terms and provisions of or
constitute (with or without notice, lapse of time or both) a default under the
organizational documents or operating agreement of NAFCO, or any indenture,
agreement, mortgage, deed of trust or other instrument to which NAFCO is a
party or by which it is bound, or in the creation or imposition of any lien
upon any of its properties pursuant to the terms of such indenture,
agreement, mortgage, deed of trust or other such instrument, or violate any
law, or any order, rule or regulation applicable to NAFCO of any court or of
any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over NAFCO or any of its
properties.
(e) Approvals. All approvals, authorizations, consents, orders or
other actions of any person, or of any court, governmental agency or body or
official, required in connection with the execution and delivery of this
Agreement have been or will be taken or obtained on or prior to the Closing
Date.
(f) Private Placement. Except as contemplated by this Agreement,
NAFCO and/or its designee will acquire the NAFCO Shares for investment, and
not for the interest of any other person, not for resale to any other Person
and not with a view to or in connection with any sale or distribution. NAFCO
acknowledges, and acknowledges on behalf of any designee of NAFCO, that the
NAFCO Shares will be "restricted securities" as defined in Rule 144(a)(3)
under the Securities Act and subject to substantial restrictions on transfer,
and that the certificates representing the NAFCO Shares will bear restrictive
legends. In addition, NAFCO represents and warrants that it is (and that any
designee of NAFCO will be) an "accredited investor" as that term is defined in
Rule 501(a) of Regulation D under the Securities Act. NAFCO further
represents and warrants that it and/or its designee has had access to the
books and records of Monaco and has received from Monaco and other sources all
information required by it in order to make an informed investment decision
with respect to the NAFCO Shares including, without limitation, (i) all
reports filed by Monaco with the Commission pursuant to Section 13 under the
Securities Exchange Act of 1934, (ii) all annual reports to its shareholders,
(iii) the opportunity to ask questions and receive answers concerning the
terms and conditions of the sale of such securities, which questions have been
answered to its satisfaction, and (iv) all additional information requested by
NAFCO and/or its designee which Monaco possesses or could acquire without
unreasonable effort or expense to verify the accuracy of the information
furnished to NAFCO and/or its designee, which information has been provided to
NAFCO and/or its designee, as applicable.
(g) Ownership of NAFCO Loans. Immediately prior to the
consummation of the transactions contemplated hereby to be consummated on the
Closing Date, NAFCO will be the sole owner of and will have full right to
transfer the NAFCO Loans to Monaco, and the NAFCO Loans will be free and clear
of any Adverse Claim.
(h) No Default or Breach. NAFCO is not in default or in breach of
any agreement or instrument to which NAFCO is a party or by which it is bound,
except for defaults or breaches which in the aggregate would not materially
hinder or impair the consummation of the Transaction.
(i) No Misstatements, Etc. NAFCO has not made any misstatements of
fact or omitted to state any fact necessary or desirable to make complete,
accurate, and not misleading every representation or warranty set forth in
this Agreement.
(j) No Brokers. No broker, finder, agent or similar intermediary
has acted for or on behalf of NAFCO (or any designee of NAFCO) in connection
with the Transaction, and no such Person is or will be entitled to any
broker's, finders or similar fee or other commission in connection therewith
based on any agreement, arrangement or understanding with, or any action taken
by, NAFCO (or any designee of NAFCO).
(k) General. It is NAFCO's present intention that at all times
prior to and immediately after the consummation of the Transaction, NAFCO will
continue to operate in the consumer finance business.
(l) NAFCO Loans. None of the NAFCO Loans was originally originated
by PSB.
4.4 Representations and Warranties of Advantage. Advantage hereby
represents and warrants to Monaco (all such representations and warranties
being made as of the Closing Date, except as otherwise specifically provided)
as follows:
(a) Organization and Good Standing. Advantage is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and is qualified to transact business in each State where
the nature of its business requires it to qualify, except to the extent that
the failure to so qualify would not in the aggregate materially adversely
affect the ability of Advantage to perform its obligations hereunder.
(b) Authorization. Advantage has the power, authority and legal
right to execute, deliver and perform under the terms of this Agreement and
the execution, delivery and performance of this Agreement has been duly
authorized by Advantage by all necessary corporate action.
(c) Binding Obligation. This Agreement, assuming due
authorization, execution and delivery by Monaco, constitutes a legal, valid
and binding obligation of Advantage, enforceable against Advantage in
accordance with its terms except that (A) such enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
(whether statutory, regulatory or decisional) now or hereafter in effect
relating to creditors' rights generally and (B) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to certain equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought, whether a proceeding at law or in
equity.
(d) No Violation. The consummation of the transactions
contemplated by the fulfillment of the terms of this Agreement will not
conflict with, result in any breach of any of the terms and provisions of or
constitute (with or without notice, lapse of time or both) a default under the
organizational documents or bylaws of Advantage, or any indenture, agreement,
mortgage, deed of trust or other instrument to which Advantage is a party or
by which it is bound, or in the creation or imposition of any lien upon any of
its properties pursuant to the terms of such indenture, agreement, mortgage,
deed of trust or other such instrument, or violate any law, or any order, rule
or regulation applicable to Advantage of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over Advantage or any of its properties.
(e) Approvals. All approvals, authorizations, consents, orders or
other actions of any person, or of any court, governmental agency or body or
official, required in connection with the execution and delivery of this
Agreement have been or will be taken or obtained on or prior to the Closing
Date.
(f) Private Placement. Except as contemplated by this Agreement,
Advantage and/or its designee will acquire the Advantage Preferred Shares for
investment, and not for the interest of any other Person, not for resale to
any other person and not with a view to or in connection with any sale or
distribution. Advantage acknowledges, and acknowledges on behalf of any
designee of Advantage, that the Advantage Preferred Shares will be "restricted
securities" as defined in Rule 144(a)(3) under the Securities Act and subject
to substantial restrictions on transfer, and that the certificates
representing the Advantage Preferred Shares will bear restrictive legends In
addition, Advantage represents and warrants that it is (and that any designee
of Advantage will be) an "accredited investor" as that term is defined in Rule
501(a) of Regulation D under the Securities Act. Advantage further represents
and warrants that it and/or its designee has had access to the books and
records of Monaco and has received from Monaco and other sources all
information required by it in order to make an informed investment decision
with respect to the Advantage Preferred Shares including, without limitation,
(i) all reports filed by Monaco with the Commission pursuant to Section 13
under the Securities Exchange Act of 1934, (ii) all annual reports to its
shareholders, (iii) the opportunity to ask questions and receive answers
concerning the terms and conditions of the sale of such securities, which
questions have been answered to its satisfaction, and (iv) all additional
information requested by Advantage and/or its designee which Monaco possesses
or could acquire without unreasonable effort or expense to verify the accuracy
of the information furnished to Advantage and/or its designee, which
information has been provided to Advantage and/or its designee, as applicable.
(g) Ownership of Advantage Loans. Immediately prior to the
consummation of the transactions contemplated hereby to be consummated on the
Closing Date, Advantage will be the sole owner of and will have full right to
transfer the Advantage Loans to Monaco, and the Advantage Loans will be free
and clear of any Adverse Claim.
(h) No Default or Breach. Advantage is not in default or in breach
of any agreement or instrument to which Advantage is a party or by which it is
bound, except for defaults or breaches which in the aggregate would not
materially hinder or impair the consummation of the Transaction.
(i) No Misstatements, Etc. Advantage has not made any
misstatements of fact or omitted to state any fact necessary or desirable to
make complete, accurate, and not misleading every representation or warranty
set forth in this Agreement.
(j) No Brokers. No broker, finder, agent or similar intermediary
has acted for or on behalf of Advantage (or any designee of Advantage) in
connection with the Transaction, and no such Person is or will be entitled to
any broker's, finders or similar fee or other commission in connection
therewith based on any agreement, arrangement or understanding with, or any
action taken by, Advantage (or any designee of Advantage).
(k) General. It is Advantage's present intention that at all times
prior to and immediately after the consummation of the Transaction, Advantage
will continue to operate its business as conducted by it as of the date
hereof.
(l) Advantage Loans. None of the Advantage Loans was originally
originated by PSB.
4.5 Representations and Warranties of PSB. PSB hereby represents
and warrants to Monaco (all such representations and warranties being made as
of the Closing Date, except as otherwise specifically provided) as follows:
(a) Organization and Good Standing. PSB is a bank duly organized,
validly existing and in good standing under the laws of the United States of
America and is qualified to transact business in each State where the nature
of its business requires it to qualify, except to the extent that the failure
to so qualify would not in the aggregate materially adversely affect the
ability of PSB to perform its obligations hereunder.
(b) Authorization. PSB has the power, authority and legal right to
execute, deliver and perform under the terms of this Agreement and the
execution, delivery and performance of this Agreement has been duly
authorized by PSB by all necessary corporate action.
(c) Binding Obligation. This Agreement, assuming due
authorization, execution and delivery by Monaco, constitutes a legal, valid
and binding obligation of PSB, enforceable against PSB in accordance with its
terms except that (A) such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws (whether
statutory, regulatory or decisional) now or hereafter in effect relating to
creditors' rights generally and (B) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to certain
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought, whether a proceeding at law or in equity.
(d) No Violation. The consummation of the transactions
contemplated by the fulfillment of the terms of this Agreement will not
conflict with, result in any breach of any of the terms and provisions of or
constitute (with or without notice, lapse of time or both) a default under the
organizational documents or bylaws of PSB, or any indenture, agreement,
mortgage, deed of trust or other instrument to which PSB is a party or by
which it is bound, or in the creation or imposition of any lien upon any of
its properties pursuant to the terms of such indenture, agreement, mortgage,
deed of trust or other such instrument, or violate any law, or any order, rule
or regulation applicable to PSB of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over PSB or any of its properties.
(e) Approvals. All approvals, authorizations, consents, orders or
other actions of any person, or of any court, governmental agency or body or
official, required in connection with the execution and delivery of this
Agreement have been or will be taken or obtained on or prior to the Closing
Date.
(f) Private Placement. PSB and/or its designee will acquire the
PSB Shares for investment, and not for the interest of any other Person, not
for resale to any other person and not with a view to or in connection with
any sale or distribution. PSB acknowledges, and acknowledges on behalf of any
designee of PSB, that the PSB Shares will be "restricted securities" as
defined in Rule 144(a)(3) under the Securities Act and subject to substantial
restrictions on transfer, and that the certificates representing the PSB
Shares will bear restrictive legends. In addition, PSB represents and
warrants that it is (and that any designee of PSB will be) an "accredited
investor" as that term is defined in Rule 501(a) of Regulation D under the
Securities Act. PSB further represents and warrants that each of PSB and/or
its designee has had access to the books and records of Monaco and has
received from Monaco and other sources all information required by it in order
to make an informed investment decision with respect to the PSB Shares
including, without limitation, (i) all reports filed by Monaco with the
Commission pursuant to Section 13 under the Securities Exchange Act of 1934,
(ii) all annual reports to its shareholders, (iii) the opportunity to ask
questions and receive answers concerning the terms and conditions of the sale
of such securities, which questions have been answered to its satisfaction,
and (iv) all additional information requested by PSB and/or its designee which
Monaco possesses or could acquire without unreasonable effort or expense to
verify the accuracy of the information furnished to PSB and/or its designee,
which information has been provided to PSB and/or its designee, as applicable.
(g) No Default or Breach. PSB is not in default or in breach of
any agreement or instrument to which PSB is a party or by which it is bound,
except for defaults or breaches which in the aggregate would not materially
hinder or impair the consummation of the Transaction.
(h) No Misstatements, Etc. PSB has not made any misstatements of
fact or omitted to state any fact necessary or desirable to make complete,
accurate, and not misleading every representation or warranty set forth in
this Agreement.
(i) No Brokers. No broker, finder, agent or similar intermediary
has acted for or on behalf of PSB (or any designee of PSB) in connection with
the Transaction, and no such Person is or will be entitled to any broker's,
finders or similar fee or other commission in connection therewith based on
any agreement, arrangement or understanding with, or any action taken by, PSB
(or any designee of PSB).
(j) General. It is PSB's present intention that at all times prior
to and immediately after the consummation of the Transaction, PSB will
continue to operate its business as conducted by it as of the date hereof;
provided that it is PSB's intention to sell substantially all of its banking
operations in 1998.
4.6 Representations and Warranties of PCF. PCF hereby represents
and warrants to Monaco (all such representations and warranties being made as
of the Closing Date, except as otherwise specifically provided) as follows:
(a) Organization and Good Standing. PCF is a limited liability
company duly organized, validly existing and in good standing under the laws
of the State of Delaware and is qualified to transact business in each State
where the nature of its business requires it to qualify, except to the extent
that the failure to so qualify would not in the aggregate materially adversely
affect the ability of PCF to perform its obligations hereunder.
(b) Authorization. PCF has the power, authority and legal right to
execute, deliver and perform under the terms of this Agreement and the
execution, delivery and performance of this Agreement has been duly
authorized by PCF by all corporate action.
(c) Binding Obligation. This Agreement, assuming due
authorization, execution and delivery by Monaco, constitutes a legal, valid
and binding obligation of PCF, enforceable against PCF in accordance with its
terms except that (A) such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws (whether
statutory, regulatory or decisional) now or hereafter in effect relating to
creditors' rights generally and (B) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to certain
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought, whether a proceeding at law or in equity.
(d) No Violation. The consummation of the transactions
contemplated by the fulfillment of the terms of this Agreement will not
conflict with, result in any breach of any of the terms and provisions of or
constitute (with or without notice, lapse of time or both) a default under the
organizational documents or operating agreement of PCF, or any indenture,
agreement, mortgage, deed of trust or other instrument to which PCF is a party
or by which it is bound, or in the creation or imposition of any lien upon any
of its properties pursuant to the terms of such indenture, agreement,
mortgage, deed of trust or other such instrument, or violate any law, or any
order, rule or regulation applicable to PCF of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over PCF or any of its properties.
(e) Approvals. All approvals, authorizations, consents, orders or
other actions of any person, or of any court, governmental agency or body or
official, required in connection with the execution and delivery of this
Agreement have been or will be taken or obtained on or prior to the Closing
Date.
(f) Ownership of ADA Equity Interest and other Warrants.
Immediately prior to the consummation of the transactions contemplated hereby
which are to take place on the Closing Date: (i) PCF will be the sole owner
of and will have full right to transfer the ADA Equity Interest to Monaco
subject to the right of first refusal in favor of other shareholders of ADA
Capital Corporation and applicable securities laws, and the ADA Equity
Interest will be free and clear of any Adverse Claim; and (ii) PCF will be the
sole owner of and will have full right to transfer all of the Warrants (other
than the Restricted Warrants) to Monaco, and all of the Warrants (other than
the Restricted Warrants) will be free and clear of any Adverse Claim.
(g) No Default or Breach. PCF is not in default or in breach of
any agreement or instrument to which PCF is a party or by which it is bound,
except for defaults or breaches which in the aggregate would not materially
hinder or impair the consummation of the Transaction.
(h) No Misstatements, Etc. PCF has not made any misstatements of
fact or omitted to state any fact necessary or desirable to make complete,
accurate, and not misleading every representation or warranty set forth in
this Agreement.
(i) No Brokers. No broker, finder, agent or similar intermediary
has acted for or on behalf of PCF (or any designee of PCF) in connection with
the Transaction, and no such Person is or will be entitled to any broker's,
finders or similar fee or other commission in connection therewith based on
any agreement, arrangement or understanding with, or any action taken by, PCF
(or any designee of PCF).
4.7 Joint Representations and Warranties of NAFCO and Advantage.
NAFCO and Advantage jointly and severally represent and warrant to Monaco that
as of the Cut-Off Date, no more than twelve percent (12%) of the aggregate
number of Acquired Loans will be between thirty-one (31) and fifty-nine (59)
days past due with respect to any regularly scheduled monthly payment or
principal and/or interest from the related Obligors.
ARTICLE V
COVENANTS OF MONACO
5.1 Certain Covenants of Monaco. Monaco covenants and agrees for
the benefit of NAFCO (and any designee of NAFCO to which any Transaction
Shares have been issued) as follows:
(a) Within ninety (90) days after the end of each calendar year
during the Pricing Period, Monaco shall give NAFCO a statement prepared by
Monaco (and audited by Ehrhardt, Keefe, Xxxxxxx & Xxxxxxx or such other firm
as is then acting as Monaco's auditors) confirming the accuracy of Monaco's
calculations) showing the computation of the Pre-Tax Earnings of the
Designated NAFCO Operations for such calendar year, and shall make the
delivery of the shares of Class A Common Stock or the Monaco/ANO Note I and
the Monaco/ANO Note II, as applicable, to NAFCO (or its designees) to be made
pursuant to Section 2.2(c) on the basis of such computations. All such
statements will also be accompanied by complete financial statements of Monaco
for such calendar year, which shall be audited. For sixty (60) days after the
receipt of any such statement, NAFCO and its agents shall be entitled to
inspect the books of Monaco relating to the operations which provide the basis
for the computation of the Pre-Tax Earnings set forth in such statement, such
inspection to be completed within thirty (30) days after access to such books
are granted. If NAFCO shall notify Monaco in writing prior to the end of such
30-day period that it disagrees with the computation of Pre-Tax Earnings
contained in such statement, the determination of such Pre-Tax Earnings shall
be submitted to Ehrhardt, Keefe, Xxxxxxx & Xxxxxxx (or such other firm as is
then acting as Monaco's auditors), a second firm of independent certified
public accountants to be named by NAFCO and a third firm of independent
certified public accountants to be selected by both such firms (or if such
third firm is not so selected, a third firm of independent certified public
accountants designated by the American Arbitration Association), and the
decision of a majority thereof shall be binding upon all the parties to this
Agreement. The fees and expenses incurred in connection with all such
determinations of Ehrhardt, Keefe, Xxxxxxx & Xxxxxxx (or such other firm as
is then acting as Monaco's auditors) shall be borne by Monaco, of the second
firm of independent certified public accountants named by NAFCO shall be borne
by NAFCO, and of such third firm shall be borne one-half each by Monaco and
NAFCO. If NAFCO does not notify Monaco in writing prior to the end of such
30-day period that it disagrees with the computation of the Pre-Tax Earnings
contained in the statement, such computation shall be binding upon all the
parties hereto.
(b) From and after the Closing Date, Monaco shall maintain and
operate the Designated NAFCO Operations as a separate and identifiable
division and will maintain all books and records required for the
determination of Pre-Tax Earnings during the Pricing Period.
(c) From and after the Closing Date, Monaco will attempt in good
faith to advance the business of the Designated NAFCO Operations, will offer
the NAFCO Loan Originators the same types of loan programs as are offered by
Monaco to other originators (which Monaco terms "loan production offices"),
will not divert the business or assets of the Designated NAFCO Operations to
any other organization or entity, will not shift earnings of the Designated
NAFCO Operations to periods outside the Pricing Period, will not shift
expenses of the Acquired Operations properly allocable to periods outside the
Pricing Period to the Pricing Period, and will at all times exercise good
faith in making any decisions affecting the Designated NAFCO Operations.
(d) Monaco shall keep in full effect its existence, rights and
franchises as a corporation, and shall obtain and preserve its qualification
to do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement and to perform its duties under this
Agreement. Any Person into which Monaco may be merged or consolidated, or to
whom Monaco has sold substantially all of its assets, or any corporation
resulting from any merger, conversion or consolidation to which Monaco shall
be a party, shall be the successor of Monaco hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto; provided, however, that such successor shall execute an agreement of
assumption, in form reasonably satisfactory to NAFCO, to perform every
covenant of Monaco under this Agreement.
(e) Monaco will promptly furnish to NAFCO from time to time upon
written request such information regarding the business and affairs and
financial condition of the Designated NAFCO Operations as NAFCO may reasonably
request, and will furnish to NAFCO monthly reports, promptly after becoming
available and in any event within 30 days after the end of each month
following the Closing Date and through the end of the Pricing Period, the
balance sheet of the Designated NAFCO Operations as of the end of such period,
the statements in income, and statements of cash flow of the Designated NAFCO
Operations for such month and for the period from the beginning of the Pricing
Period (for the month beginning February 1998), certified by the principal
financial officer of Monaco to have been prepared in accordance with generally
accepted accounting principles consistently followed throughout the period
indicated, except to the extent stated therein, subject to normal changes
resulting from year-end adjustment.
(f) Monaco will permit any officer, employee or agent of NAFCO to
examine the books and records relating to the Designated NAFCO Operations,
take copies and extracts therefrom, and discuss the affairs, finances and
accounts of the Designated NAFCO Operations with Monaco's officers,
accountants and auditors, upon reasonable request and during normal business
hours so as not to interfere with Monaco's normal operations.
(g) Except in connection with the transfer of assets in a
securitization transaction or similar financing arrangement, Monaco will not
sell, transfer, dissolve or otherwise dispose of the business operations
relating to the Designated NAFCO Operations after the Closing Date and prior
to the end of the Pricing Period without the prior written consent of NAFCO.
ARTICLE VI
ADDITIONAL COVENANTS
6.1 Covenants of PSB, NAFCO and Advantage. PSB, NAFCO and
Advantage each covenant and agree to promptly provide such information and
assistance to Monaco as it shall reasonably require in connection with its
solicitation of proxies from the holders of its Class A and Class B Common
Stock in connection with the special meeting of its shareholders to be called
for the purpose of approving the Stock Issuances.
6.2 Covenants of all Parties. Each of the parties hereto shall
make all HSR Required Filings with the appropriate governmental authorities as
soon as possible and will use its best efforts to file same within ten (10)
calendar days following the Closing Date.
6.3 Covenants of NAFCO, Advantage, PSB, PCF, and Monaco.
(a) Monaco shall file with the Commission for its approval a proxy
statement relating to the Stock Issuances as soon as possible following the
Closing Date and will use its best efforts to file same within ten (10)
calendar days following the Closing Date. Thereafter, within four (4)
Business Days following the approval of such proxy statement by the
Commission, Monaco shall, by means of such proxy statement, seek to obtain the
Monaco Shareholders' Approval Xxxxxx Xxxxxxxx and Xxxxx Xxxxxxx have
previously agreed to vote all shares of Class A and Class B Common Stock over
which they have voting power in favor of the Stock Issuances. If the Monaco
Shareholders' Approval is received and the parties hereto have received the
HSR Approval, then Monaco shall cause the Stock Issuances to take place and
shall deliver on the Determination Date:
(i) to NAFCO or its designee, the share certificates, in the form
agreed to between Monaco and NAFCO, representing the NAFCO Preferred Shares;
(ii) to NAFCO or its designee, with respect to the NAFCO Preferred
Shares, the Monaco/NAFCO Registration Rights Agreement;
(iii) to Advantage or its designee, the share certificates, in the
form agreed to between Monaco and Advantage, representing the Advantage
Preferred Shares;
(iv) to Advantage or its designee, with respect to the Advantage
Preferred Shares, the Monaco/Advantage Registration Rights Agreement;
(v) to PSB or its designee, the share certificates representing the
PSB Shares, or a fully executed instruction letter to Monaco's transfer agent
to issue such share certificates;
(vi) to PSB or its designee, with respect to the PSB Shares, the
Monaco/PSB Registration Rights Agreement; and
(vii) to NAFCO or its designee, Advantage or its designee, and PSB or
its designee, an opinion of counsel respecting such Stock Issuances, in form
and substance reasonably acceptable to Monaco and each of such other Persons.
In connection with the foregoing, each of NAFCO, Advantage, and PSB (or their
respective designees, as applicable) shall (or shall cause their respective
designees, as applicable, to) duly execute and deliver (on the Determination
Date) the registration rights agreement to which it is a party. If NAFCO,
Advantage, and/or PSB should designate a Person to which any of the
Transaction Shares are to be issued as provided herein, then it shall be a
condition precedent to the obligation of Monaco to deliver share certificates
representing such Transaction Shares to such designee (either on the
Determination Date or at any time thereafter) that such designee shall execute
and deliver to Monaco an agreement whereby it makes the same representations
and warranties to Monaco as are made by NAFCO, Advantage, and PSB in Sections
4.3(f), 4.4(f), and 4.5(f). If the parties hereto shall have received the
HSR Approval, and Monaco shall have received the Monaco Shareholders' Approval
and caused the Stock Issuances, then the Monaco Pledge Agreement shall
automatically terminate and be of no further force and effect.
(b) From and after the Closing Date, each of NAFCO and PCF shall use
its best efforts to cause the transfer of any Restricted Warrants to Monaco in
compliance with the restrictions applicable thereto.
ARTICLE VII
MISCELLANEOUS
7.1 Notices. All notices, requests, consents and other
communications required or permitted hereunder or under any other Asset
Purchase Document shall be in writing and shall be personally delivered,
transmitted via facsimile or overnight courier service or mailed first-class
postage prepaid, registered or certified mail,
(a) if to Pacific USA, PSB, NAFCO, Advantage, and/or PCF:
c/o Pacific USA Holdings Corp.
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxx X. Xxxxxxx, Chief Executive Officer
Facsimile No.: (000) 000-0000
With a Copy to:
Pacific USA Holdings Corp.
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Chief General Counsel
Facsimile No.: (000) 000-0000
(b) if to Monaco:
Monaco Finance, Inc.
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, Executive Vice President
Facsimile No.: (000) 000-0000
and such notices and other communications shall for all purposes of this
Agreement and any other Asset Purchase Document be treated as being effective
or having been given on the date when personally delivered or when transmitted
by facsimile (if confirmation of facsimile receipt has been given), on the
date after being deposited with an overnight courier service, or, if sent by
mail, four days after deposit in the United States mail, postage prepaid. Any
party may change its address for notice by notifying the other party pursuant
to the above notice provisions.
7.2 Counterparts. This Agreement may be executed in two or more
counterparts, and by the different parties hereto in separate counterparts,
each of which when executed and delivered will be deemed to be an original but
all of which together will constitute one and the same instrument. Delivery
of an executed counterpart of the signature page to this Agreement by
telefacsimile shall be effective as delivery of a manually executed
counterpart of this Agreement, and any party delivering such an executed
counterpart of this Agreement by telefacsimile to any other party shall
thereafter also promptly deliver a manually executed counterpart of this
Agreement to such other party; provided that the failure to deliver such
manually executed counterpart shall not affect the validity, enforceability,
or binding effect of this Agreement.
7.3 Governing Law; Consent to Jurisdiction; Waiver of Jury Trial.
(A) THIS AGREEMENT AND THE ASSET PURCHASE DOCUMENTS SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF TEXAS.
(B) IN ANY LEGAL ACTION RELATING TO THIS AGREEMENT OR THE ASSET
PURCHASE DOCUMENTS OR RELATING TO ANY OTHER DEALINGS AND NEGOTIATIONS BETWEEN
THE PARTIES, EACH PARTY AGREES (I) TO THE EXERCISE OF JURISDICTION OVER IT BY
A FEDERAL COURT SITTING IN DALLAS, TEXAS OR DENVER, COLORADO; AND (II) IF
EITHER PARTY BRINGS A LEGAL ACTION, IT SHALL BE INSTITUTED IN ONE OF THE
COURTS SPECIFIED IN SUBPARAGRAPH (I) ABOVE.
(C) THE PARTIES EACH HEREBY WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY LEGAL ACTION WHETHER SOUNDING IN CONTRACT, TORT,
OR OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR IN CONNECTION WITH
THIS AGREEMENT OR THE ASSET PURCHASE DOCUMENTS. INSTEAD, ANY LEGAL ACTION
RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
7.4 Binding Agreement. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
7.5 Amendments; No Waivers. Any provision of this Agreement may be
amended or waived if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by Pacific USA and Monaco, or in the case
of a waiver, by the party against whom the waiver is to be effective. No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
7.6 Securitization Matters. Notwithstanding anything to the
contrary contained herein, each of the parties hereto agrees that, in
connection with any securitization transaction contemplated under Section 9
of the Loan Loss Reimbursement Agreement, such party shall take such actions
(including, without limitation, the amendment or modification of any of the
Asset Purchase Documents and the delivery of opinions of counsel) as shall be
reasonably required by MBIA Insurance Corporation (or similar entity) and/or
any rating agency involved in any such securitization transaction; provided
that Monaco shall pay all of the reasonable out-of-pocket expenses, including,
without limitation, attorneys' fees, incurred by each such party in taking
such action(s); provided further that no party hereto shall be required to
take any such action if, in the good faith determination of such party, such
action would materially and adversely affect such party.
7.7 Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law, or
public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions is not affected in any manner adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that
the transactions be consummated as originally contemplated to the fullest
extent possible.
7.8 Certain Rules of Construction. Unless otherwise specified
herein, section, exhibit, and schedule references are to this Agreement. All
of the exhibits and schedules hereto are incorporated herein by this
reference. Headings used herein are for convenience of reference only.
7.9 Confidentiality. Each Related Party hereby agrees that all
information obtained by such Person regarding the Acquired Loans from and
after the Closing Date shall be maintained in confidence and shall not be
disclosed to any other Person unless: (a) such disclosure does not violate
any applicable law or regulation or any proprietary rights of Monaco, any
subsidiary of Monaco, or any servicer of all or any of the Acquired Loans; (b)
such disclosure is ordered by a court of applicable jurisdiction; or (c) such
disclosure is made by such Related Party to its officers, directors, auditors,
attorneys, employees, professional consultants, or agents who would have
access to such information in the normal course of the performance of such
Related Party's duties; provided that such Related Party may make
disclosures with respect to any of the above matters to reinsurers or any
Person having regulatory authority over such Related Party.
7.10 Amendment and Restatement; Effectiveness. This Agreement
amends and restates the Original Agreement in its entirety. This Agreement
shall become effective as of the date first written above upon the execution
and delivery of a counterpart hereof by each of the parties hereto.
IN WITNESS WHEREOF, this Agreement has been signed and delivered by the
parties hereto as of the date first written above.
MONACO FINANCE, INC.,
a Colorado corporation
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
PACIFIC USA HOLDINGS CORP.,
a Texas corporation
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
PACIFIC SOUTHWEST BANK,
a federally chartered savings bank
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Executive Vice President
NAFCO HOLDING COMPANY, LLC,
a Delaware limited liability Company
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Chief Financial Officer
ADVANTAGE FUNDING GROUP, INC.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Vice President
PCF SERVICE, LLC,
a Delaware limited liability Company
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Executive Vice President
EXHIBIT A-1
Form of Advantage Loan Purchase Agreement
SEE EXHIBIT 10.64 FILED WITH FORM 8-K DATED
JANUARY 23, 1998, FILED BY MONACO FINANCE, INC.
EXHIBIT C-1
Form of Certificate of Designation
SEE EXHIBIT 10.63 FILED WITH FORM 8-K DATED
JANUARY 23, 1998, FILED BY MONACO FINANCE, INC.
EXHIBIT L-1
Form of Loan Loss Reimbursement Agreement
SEE EXHIBIT 10.02 FILED HEREWITH.
EXHIBIT M-1
Form of
Monaco/Advantage Note, Monaco/ANO Note I, Monaco ANO Note II,
Monaco/NAFCO Note, and Monaco/PSB Note
SEE EXHIBIT 10.63 FILED WITH FORM 8-K DATED
JANUARY 23, 1998, FILED BY MONACO FINANCE, INC.
EXHIBIT M-2
Form of Monaco/Advantage Registration Rights Agreement
SEE EXHIBIT 10.63 FILED WITH FORM 8-K DATED
JANUARY 23, 1998, FILED BY MONACO FINANCE, INC.
EXHIBIT M-3
Form of Monaco/NAFCO Registration Rights Agreement
SEE EXHIBIT 10.63 FILED WITH FORM 8-K DATED
JANUARY 23, 1998, FILED BY MONACO FINANCE, INC.
EXHIBIT M-4
Form of Monaco Pledge Agreement
SEE EXHIBIT 10.63 FILED WITH FORM 8-K DATED
JANUARY 23, 1998, FILED BY MONACO FINANCE, INC.
EXHIBIT M-5
Form of Monaco/PSB Registration Rights Agreement
SEE EXHIBIT 10.63 FILED WITH FORM 8-K DATED
JANUARY 23, 1998, FILED BY MONACO FINANCE, INC.
EXHIBIT N-1
Form of NAFCO Loan Purchase Agreement
SEE EXHIBIT 10.66 FILED WITH FORM 8-K DATED
JANUARY 23, 1998, FILED BY MONACO FINANCE, INC.
EXHIBIT 3.5(C)
Form of Advantage Servicing Agreement
SEE EXHIBIT 10.67 FILED WITH FORM 8-K DATED
JANUARY 23, 1998, FILED BY MONACO FINANCE, INC.
EXHIBIT 3.5(D)
Form of NAFCO Servicing Agreement
SEE EXHIBIT 10.68 FILED WITH FORM 8-K DATED
JANUARY 23, 1998, FILED BY MONACO FINANCE, INC.
0 SEE EXHIBIT 10.6
