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EXHIBIT 10.1
GFC GREYHOUND FINANCIAL CORPORATION
CONSUMER REDISCOUNT GROUP
LOAN AND SECURITY AGREEMENT
Borrower: XXXXXXX FINANCE COMPANY
Address: 000 XXXXXX XXXXXX
XXXXX XXXXX, XXXXXXX 00000
Date: DECEMBER 12, 1994
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THIS LOAN AND SECURITY AGREEMENT is entered into on the above date between
GREYHOUND FINANCIAL CORPORATION, a Delaware corporation ("Lender"), whose
corporate address is Dial Tower, Dial Corporate Center, Phoenix, Arizona 85077
and whose branch office address is 00000 Xxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx
00000 and the borrower named above (the "Borrower"), whose chief executive
office is located at the above address ("Borrower's Address").
1. DEFINITIONS
1.1 ACCOUNT DEBTOR. The term "Account Debtor" shall mean any person or
persons that are an obligor in any contractual arrangement with Borrower or any
co-xxxxxx in respect of any Receivable.
1.2. AGREEMENT. The term "Agreement" shall mean this Loan and Security
Agreement and any amendment, modifications or extension hereof.
1.3. BUSINESS DAY. The term "Business Day" shall mean a day, other than a
Saturday or Sunday, on which commercial banks are open for business to the
public in Phoenix, Arizona and New York, New York.
1.4. CODE. The term "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
1.5. COLLATERAL. The term "Collateral" shall have the meaning set forth in
Section 3.1. hereof.
1.6. COMMONLY CONTROLLED ENTITY. The term "Commonly Controlled Entity" shall
mean an entity, whether or not incorporated, which is under common control with
Borrower within the meaning of Section 414(b) or (c) of the Code.
1.7. DEFAULT. The term "Default" shall mean an event which with the passage
of time or notice or both would constitute an Event of Default (as defined in
Section 7.1).
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1.8. DISTRIBUTIONS. The term "Distributions" shall mean any dividends or
other distribution of earnings to Borrower's shareholders.
1.9. ELIGIBLE RECEIVABLES. The term "Eligible Receivables" shall mean those
Receivables of Borrower that are acceptable to Lender, in its reasonable
discretion, and, in each case, that meet, at a minimum, all of the following
requirements: (i) arise from the extension of credit, the sale and delivery of
goods or the rendering of services in the ordinary course of Borrower's
business; (ii) represent a valid and binding obligation enforceable in
accordance with its terms for the amount outstanding thereof without offset,
counterclaim or defense (whether actual or alleged); (iii) comply in all
respects with all applicable laws and regulations, including, but not limited
to, truth in lending and credit disclosure laws and regulations; (iv) all
amounts and information appearing thereon or furnished to Lender in connection
therewith are true and correct and undisputed by the Account Debtor thereon or
any guarantor thereof; (v) Borrower and the Account Debtor are not engaged in
any litigation regarding nonpayment of the receivable; (vi) to the best
knowledge of Borrower neither the Account Debtor thereon nor any guarantor
thereof is subject to any receivership, insolvency or bankruptcy proceeding, is
insolvent or has failed to meet its debts as they mature; (vii) Borrower has
good and sufficient right to pledge, assign and deliver the Receivables free
from all liens, claims, encumbrances or security interests whatsoever; (viii)
neither the Account Debtor nor any guarantor thereof is employed by, related to,
or affiliated with Borrower; (ix) to the best knowledge of Borrower no condition
exists that materially or adversely affects the value of the Receivables or
jeopardizes any security therefor; (x) if the Receivables arise from the sale of
goods, such goods have been delivered and accepted by the Account Debtor and are
still subject to the lawful possession and control of the Account Debtor and
have not been otherwise returned to or repossessed by Borrower; (xi) is not a
renewal or extension of any Receivable previously ineligible hereunder; (xii)
the original principal amount thereof does not exceed the Maximum Amount of an
Eligible Receivable (SCHEDULE SECTIONS 1.9.A.) and the original term thereof
does not exceed the Maximum Term of an Eligible Receivable (SCHEDULE SECTION
1.9.B.); (xiii) meets the liability Test and has been reported to Lender in
compliance with the Aging Procedures (SCHEDULE SECTION 1.9.D.); (xiv) is not
evidenced by a judgment or has not been reduced to judgment; (xv) is not an open
account; (xvi) is evidenced by a written payment agreement, bearing interest or
containing a time price differential, which has been executed by the Account
Debtor; (xvii) the Account Debtor thereunder is a legal resident of the United
States; and (xviii) payments under the Receivable are to be made in United
States dollars.
1.10. ERISA. The term "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time.
1.11. GAAP. The term "GAAP" shall mean generally accepted accounting
principles and other standards as promulgated by the American Institute of
Certified Public Accounts.
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1.12. GUARANTOR. The term "Guarantor" shall mean any person or persons who
execute a guaranty agreement in favor of Lender guaranteeing the repayment of
the Borrower's Indebtedness to Lender (Schedule Section 4.5).
1.13. GUARANTY AGREEMENT. The term "Guaranty Agreement" shall mean that
certain agreement executed by the Guarantor, in a form and substance approved by
Lender.
1.14. GOVERNING RATE. The term "Governing Rate" shall mean the "Prime" rate
publicly announced by Citibank N.A., New York, New York (or such other "money
center" bank as Lender, in its sole discretion, may select from time to time,
but shall not be more than the highest rate of the five largest banks in the
Continental United States as their respective corporate base, reference, prime
or similar benchmark rate), provided however, that such rate may not be the
lowest rate charged to such bank's customers.
1.15. INDEBTEDNESS. The term "Indebtedness" shall mean all amounts advanced
hereunder by Lender to Borrower together with all other amounts owing or
becoming owing to Lender by Borrower, direct or indirect, absolute or
contingent, now or hereafter existing, whether pursuant to the terms of this
Agreement or any document or instrument evidencing or securing the transaction
contemplated hereby.
1.16. LEVERAGE RATIO. The term "Leverage Ratio" shall mean, at any date of
determination, total liabilities of Borrower, including the outstanding balance
of the Indebtedness, divided by the sum of the amount of Borrower's Tangible Net
Worth plus all Subordinated Debt.
1.17. LOAN DOCUMENTS. The term "Loan Documents" shall mean this Agreement,
the Note, the Schedule, the Guaranty, Subordination Agreements, Agency and
Custodian Agreements and all other documents executed in connection with this
Agreement, together with any and all renewals, amendments, restatements or
replacements of such documents.
1.18. MAXIMUM RATE. The term "Maximum Rate" shall mean the highest lawful and
nonusurious rate of interest applicable to the Note made and delivered by
Borrower to Lender in connection herewith, that at any time or from time to time
may be contracted for, taken, reserved, charged, or received on the Note and the
Indebtedness under the laws of the United States and the laws of such states as
may be applicable thereto, that are in effect or, to the extent allowed by such
laws, that may be hereafter in effect and that allow a higher maximum
nonusurious and lawful interest rate than would any applicable laws now allow.
1.19. NET INCOME. The term "Net Income" shall mean with respect to any fiscal
period, the net earnings of Borrower (excluding all extraordinary gains or
nonrecurring income) before provision for income taxes for such fiscal period of
Borrower, all as reflected on the financial statements of Borrower supplied to
Lender pursuant to Sections 4.4(A) and 4.4(B) hereof.
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1.20. NOTE. The term "Note" shall mean the promissory note of even date
herewith, executed by Borrower and payable to the order of Lender.
1.21. PLAN. The term "Plan" shall mean any pension plan that is covered by
Title IV of ERISA and with respect to which Borrower or a Commonly Controlled
Entity is an "Employer" as defined in section 3(5) of ERISA.
1.22. RECEIVABLES. The term "Receivables" shall mean all accounts of Borrower
and any other right of Borrower to receive payment, including, without
limitation, all loans, extensions of credit or Borrower's right to payment for
goods sold or services rendered by Borrower.
1.23. REQUEST FOR ADVANCE. The term "Request for Advance" shall mean a
written request for an advance in the form of Exhibit "A" attached hereto and
made a part hereof.
1.24. SCHEDULE. The term "Schedule" shall mean the schedule executed in
conjunction with this Agreement of even date herewith, as may be amended from
time to time, upon written agreement of Lender and Borrower.
1.25. SUBORDINATED DEBT. The term "Subordinated Debt" shall mean the
aggregate amount of any indebtedness of Borrower to persons other than Lender
that by its terms is subordinated in all respects, including, but not limited
to, the right of payment, to the prior payment in full of the Indebtedness. A
subordination and standstill agreement or similar acceptable language, in a form
and substance satisfactory to Lender, shall be entered into by all holders of
Subordinated Debt.
1.26. TANGIBLE NET WORTH. The term "Tangible Net Worth" shall mean, at any
time of determination, the shareholder's equity of Borrower determined in
accordance with GAAP minus the aggregate amount of all intangible assets and all
assets consisting of obligations due to Borrower from shareholders, directors,
officers, or any affiliate of Borrower or any Guarantor hereunder.
2. LOAN
2.1. AMOUNT OF LOAN. Subject to the terms, covenants and conditions
hereinafter set forth, Lender agrees upon the Borrower's request from time to
time, until the Maturity Date, to make advances to Borrower (collectively, the
"Loan"), in an aggregate amount not to exceed at any time the lesser of the
following: (a) the Amount of Revolving Credit Line (SCHEDULE SECTION 2.1.A.) or
(b) the Availability on Eligible Receivables (SCHEDULE SECTION 2.1.B.). Within
the limits of this Section 2. 1, Borrower may borrow, repay and reborrow the
advances. The Loan shall be evidenced by the Note.
2.2. INTEREST RATE. The outstanding principal balance of Loan shall bear
interest at the Stated Interest Rate (SCHEDULE SECTION 2.2). If Lender is ever
prevented from charging or collecting interest at the rate set forth in Stated
Interest Rate Section (i) because interest at such rate would exceed interest at
the Maximum Rate, then the rate set forth in Stated Interest Rate Section (i)
shall continue to be the Maximum Rate until Lender has charged
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and collected the full amount of interest chargeable and collectable had
interest at the rate set forth in Stated Interest Rate Section (i) always been
lawfully chargeable and collectible. As the Governing Rate changes, the rate set
forth in Stated Interest Rate Section (i) shall be increased or decreased
(subject to the Maximum Rate), on the first day of each calendar month to
correspond with the change in the Governing Rate then in effect and shall remain
fixed at such rate until the first day of the next succeeding calendar month,
notwithstanding fluctuations in the Governing Rate during the month. All changes
in the Governing Rate shall be made without notice to Borrower. The monthly
interest due on the principal balance of the Loan outstanding shall be computed
for the actual number of days elapsed during the month in question on the basis
of a year consisting of three hundred sixty (360) days and shall be calculated
by determining the average daily principal balance outstanding for each day of
the month in question. The daily rate shall be equal to 1/360th times the Stated
Interest Rate (but shall not exceed the Maximum Rate).
2.3. PAYMENTS. All payments to Lender shall be payable at Greyhound Financial
Corporation, File No. 96425, P. 0. Xxx 000000, Xxxxxxxxx, XX 00000-0000. All
payments received pursuant to this Agreement shall be applied to Borrower's
Indebtedness three (3) Business Days after the actual receipt of such payment by
Lender's depository bank if such payment is credited to Lender's account. The
indebtedness shall be due and payable as follows:
A. Accrued but unpaid interest for each calendar month during the term
hereof shall be due and payable, in arrears, on or before the fifteenth
(15th) day of the immediately succeeding calendar month; if such accrued but
unpaid interest for the preceding month is not received by the fifteenth
(15th) of the month, such unpaid interest shall be added to the Indebtedness.
B. Costs, fees and expenses payable pursuant to this Agreement shall be
due and payable by Borrower to Lender or to such other person(s) designated
by Lender in writing on demand; and
C. The entire outstanding balance of the Indebtedness shall be due and
payable, if not prepaid, on the Maturity Date (SCHEDULE SECTION 2.3.).
2.4. PAYMENT DUE ON A NON-BUSINESS DAY. If any payment of the Indebtedness
falls due on a day other than a Business Day, then such due date shall be
extended to the next succeeding Business Day.
2.5. MANDATORY PAYMENTS. Provided that Borrower is not otherwise in Default
hereunder, if at any time the amount advanced by Lender to Borrower exceeds the
maximum amount of the Loan allowed pursuant to Section 2. 1, Borrower shall
immediately and without notice, repay to Lender an amount sufficient to
eliminate such excess, or, at Lender's option, assign and deliver additional
Eligible Receivables sufficient for such purpose. In the event Borrower sells,
transfers, assigns or otherwise disposes of all or any portion of its
Receivables, other than in the ordinary course of business,
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Borrower shall apply all proceeds of any such sale, transfer, assignment or
other disposition to reduce the outstanding balance of the Indebtedness.
2.6. VOLUNTARY PREPAYMENTS. Borrower may, at its option, voluntarily prepay
the Indebtedness in full at any time, provided, however, that Borrower has given
Lender ninety (90) days written notice of any such intention to prepay the
Indebtedness in full. Borrower may not make such prepayment prior to the
expiration of such ninety (90) day period. Upon written notice of prepayment of
the Indebtedness in full, the commitment by Lender to advance funds to Borrower
and all the obligations of Lender shall terminate on the expiration of said
ninety (90) day notice period, and the entire amount of the Indebtedness shall
be due and payable on such date.
2.7. MAXIMUM INTEREST, CONTROLLING AGREEMENT. The contracted for rate of
interest of the Loan without limitation, shall consist of the following: (i) the
Stated Interest Rate, calculated and applied to the principal balance of the
Note in accordance with the provisions of the Note and this Agreement; (ii)
Interest After Event of Default or Due Date, calculated and applied to the
amounts due under the Note in accordance with the provisions thereof; and (iii)
all Additional Sums (as herein defined), if any. Borrower agrees to pay an
effective contracted for rate of interest which is the sum of the
above-referenced elements.
All fees, charges, goods, things in action or any other sums or things of
value (other than amounts described in the immediately previous paragraph), paid
or payable by Borrower (collectively, the "Additional Sums"), whether pursuant
to the Note, this Agreement or any other documents or instruments in any way
pertaining to this lending transaction, or otherwise with respect to this
lending transaction, that under any applicable law may be deemed to be interest
with respect to this lending transaction, for the purpose of any applicable law
that may limit the maximum amount of interest to be charged with respect to this
lending transaction, shall be payable by Borrower as, and shall be deemed to be,
additional interest and for such purposes only, the agreed upon and "contracted
for rate of interest" of this lending transaction shall be deemed to be
increased by the rate of interest resulting from the inclusion of the Additional
Sums.
It is the intent of the parties to comply with the usury law ("Applicable
Usury Law") applicable pursuant to the terms of the preceding paragraph or such
other usury law which is applicable if the law chosen by the parties is not
applicable. Accordingly, it is agreed that notwithstanding any provisions to the
contrary in the Loan Documents, or in any of the documents securing payment
hereof or otherwise relating hereto, in no event shall the Loan Documents or
such documents require the payment or permit the collection of interest in
excess of the maximum contract rate permitted by the Applicable Usury Law. In
the event (a) any such excess of interest otherwise would be contracted for,
charged or received from Borrower or otherwise in connection with the loan
evidenced hereby, or (b) the maturity of the indebtedness evidenced by the Loan
Documents is accelerated in whole or in part, or (c) all or part of the
principal or interest of the Loan Documents shall be prepaid, so that under any
of such circumstances the amount of interest contracted for, shared or received
in connection with the loan evidenced hereby, would exceed the maximum contract
rate
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permitted by the Applicable Usury Law, then in any such event (1) the provisions
of this paragraph shall govern and control, (2) neither Borrower nor any other
person or entity now or hereafter liable for the payment hereof will be
obligated to pay the amount of such interest to the extent that it is in excess
of the maximum contract rate permitted by the Applicable Usury Law, (3) any such
excess which may have been collected shall be either applied as a credit against
the then unpaid principal amount hereof or refunded to Borrower, at Lender's
option, and (4) the effective rate of interest will be automatically reduced to
the maximum amount of interest permitted by the Applicable Usury Law. It is
further agreed, without limiting the generality of the foregoing, that to the
extent permitted by the Applicable Usury Law; (x) all calculations of interest
which are made for the purpose of determining whether such rate would exceed the
maximum contract rate permitted by the Applicable Usury Law shall be made by
amortizing, prorating, allocating and spreading during the period of the full
stated term of the loan evidenced hereby, all interest at any time contracted
for, charged or received from Borrower or otherwise in connection with such
loan; and (y) in the event that the effective rate of interest on the loan
should at any time exceed the maximum contract rate allowed under the Applicable
Usury Law, such excess interest that would otherwise have been collected had
there been no ceiling imposed by the Applicable Usury Law shall be paid to
Lender from time to time, if and when the effective interest rate on the loan
otherwise falls below the maximum amount permitted by the Applicable Usury Law,
to the extent that interest paid to the date of calculation does not exceed the
maximum contract rate permitted by the Applicable Usury Law, until the entire
amount of interest which would have otherwise been collected had there been no
ceiling imposed by the Applicable Usury Law has been paid in full. Borrower
further agrees that should the maximum contract rate permitted by the Applicable
Usury Law be increased at any time hereafter because of a change in the law,
then to the extent not prohibited by the Applicable Usury Law, such increases
shall apply to all indebtedness evidenced hereby regardless of when incurred;
but, again to the extent not prohibited by the Applicable Usury Law, should the
maximum contract rate permitted by the Applicable Usury Law be decreased because
of a change in the law, such decreases shall not apply to the indebtedness
evidenced hereby regardless of when incurred.
2.8. STATEMENT OF ACCOUNT. Lender shall provide Borrower, each month, with a
statement of Borrower's account, prepared from Lender's records, which shall
conclusively be deemed correct and accepted by Borrower, unless Borrower gives
Lender a written statement of exceptions within ten (10) days after receipt of
such statement.
2.9. CONDITIONS PRECEDENT TO ADVANCES. The obligation of Lender to make
advances is subject to the following conditions: (i) no Default or Event of
Default shall have occurred; (ii) all actions to be taken by Borrower in
connection with the transactions contemplated hereby shall be reasonably
satisfactory in form and substance to Lender; (iii) the warranties and
representations of Borrower contained herein shall be true and correct on the
date hereof and shall be deemed to have been made again on the date of each
advance and shall then also be true and correct; (iv) Borrower shall have
performed and complied with all obligations or conditions required by this
Agreement to be performed or complied with prior to each advance and Borrower
shall not then be in default under any document or instrument evidencing or
securing the Indebtedness; (v) Borrower shall
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submit to Lender a completed Request for Advance Report in the form and
substance of Exhibit "A" attached hereto, on the date such advance is requested
or shall have complied with the provisions concerning oral advances hereunder as
set forth in Section 2.10 hereof; (vi) prior to the initial advance hereunder,
Borrower shall submit to Lender the initial Availability Report and all other
documents, instruments, financing statements, evidence of authority, evidence of
compliance with applicable laws, opinions of counsel and other information which
Lender may reasonably request; (vii) prior to the initial advance hereunder,
Borrower shall provide Lender satisfactory evidence that Borrower's Tangible Net
Worth is equal or more than Two Hundred Thousand Dollars ($200,000.00); and
(viii) Borrower shall submit to Lender resolutions of its Board of Directors
designating personnel authorized by Borrower to execute Availability Reports on
behalf of Borrower and each specific request for advance shall be executed by
one such person.
2.10. ORAL REQUEST FOR ADVANCE. All oral requests for advances shall be made
only by an authorized agent of Borrower designated by or acting under the
authority of a resolution of the Board of Directors of Borrower, a duly
certified or executed copy of which shall be furnished to Lender prior to any
oral request. Lender shall be entitled to rely upon such authorization until
written notice to the contrary is received by Lender. Borrower covenants and
agrees to furnish to Lender written confirmation of any such oral request within
two (2) days after such oral request, in a form set forth on Exhibit "A"
attached hereto and incorporated herein, but any such loan or advance shall be
deemed to be made under and entitled to the benefits of this Agreement and any
other documents or instruments executed in connection herewith irrespective of
any failure by Borrower to furnish such written confirmation. Any loan or
advance shall be conclusively resumed to have been made under the terms of this
Agreement, to or for the benefit of Borrower, when made pursuant to the terms of
any written agreement executed in connection herewith; or in accordance with
such requests and directions; or when an advance is deposited to the credit of
the account of any person or persons, corporation or corporations comprising
Borrower, regardless of the fact that persons other than those authorized
hereunder may have authority to draw against such account or regardless of the
fact that the advance was not made or deposited for the benefit of all persons
or corporations comprising Borrower.
2.11. ALL ADVANCES TO CONSTITUTE ONE LOAN. All evidences of credit, loans and
advances made by Lender to Borrower under this Agreement and any other documents
or instruments executed in connection herewith shall constitute one loan, and
all indebtedness and obligations of Borrower to Lender under this Agreement and
all other such documents and instruments shall constitute one general obligation
secured by Lender's security interest in all of the Collateral and by all other
security interests, liens, claims and encumbrances heretofore, now, or at any
time or times hereafter granted by Borrower to Lender. Borrower agrees that all
of the rights of Lender set forth in this Agreement shall apply to any
modification of or supplement to this Agreement and any other such documents and
instruments.
2.12. ADVANCES. Lender shall have the right in Lender's discretion, subject
to availability hereunder on behalf of and without notice to Borrower, to make
and use
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advances to pay Lender for any amounts due to Lender pursuant to this
Agreement or otherwise, to cure any default hereunder, notwithstanding the
expiration of any applicable cure period.
2.13. APPLICATION OF PAYMENTS. Borrower does hereby irrevocably agree that
Lender shall have the continuing exclusive right to apply and reapply any and
all payments and collections at any time or times hereafter received by Lender
against the Indebtedness, in such manner as Lender may determine.
3. SECURITY AGREEMENT
3.1. SECURITY INTEREST. To secure the prompt payment to Lender of the
Indebtedness and any and all other obligations now existing or hereinafter
arising owed by Borrower to Lender, Borrower hereby irrevocably grants to Lender
a first and continuing security interest in the following property and interests
in property of Borrower, whether now owned or existing or hereafter acquired or
arising and wheresoever located:
A. All Receivables and all accounts, chattel paper, instruments, contract
rights and general intangibles related thereto, all of Borrower's right,
remedies, security, liens, guaranties, or other contracts of suretyship with
respect thereto, all deposits or other security or support for the obligation
of any Account Debtor thereunder and credit and other insurance acquired by
Account Debtor or the Borrower in connection therewith;
B. All bank accounts of Borrower;
C. All monies, securities and property, now or hereafter held, received
by, or entrusted to, in the possession or under the control of Lender or a
bailee of Lender;
D. All accessions to, substitutions for and all replacements, products and
proceeds of the foregoing, including, without limitation, proceeds of
insurance policies referenced in Section 3.l.A above (including but not
limited to claims paid and premium refunds); and
E. All books and records (including, without limitation, customer lists,
credit files, tapes, ledger cards, computer software and hardware, electronic
data processing software, computer printouts and other computer materials and
records) of Borrower evidencing or containing information regarding any of
the foregoing.
3.2. FINANCING STATEMENTS AND FURTHER ASSURANCES. Borrower hereby agrees to
execute UCC-1 Financing Statements, in the form and substance of Exhibit "B"
hereto, and any other instruments or documents reasonably necessary to evidence,
preserve or protect Lender's security interest in the Collateral. Borrower
agrees that financing statements shall be filed covering all of Borrower's
locations (SCHEDULE SECTION 3.2.).
Upon Lender's request, Borrower agrees to deliver to Lender, at such places
as Lender may reasonably designate, schedules executed by Borrower, listing the
Receivables and fully and correctly specifying in adequate detail the aggregate
unmatured unpaid face
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amount of each Receivable and the amount of the deferred installments thereof
falling due each month. These schedules shall be in form and tenor satisfactory
to or supplied by Lender. All schedules delivered Collateral pledged to Lender
shall be assigned to Lender pursuant to the "Schedule of Receivables and
Assignment" in the form and substance of Exhibit "E" attached hereto. Borrower
further warrants and agrees that in each case where the terms of any Receivable
require the Borrower or the Account Debtor named in such Receivable to place or
carry fire insurance or other insurance in respect of the merchandise or
property to which such Receivable relates, the Borrower shall or shall cause the
Account Debtor to maintain such insurance until the full amount of such
Receivable is collected and if not, Lender, at its option, may place and
maintain such insurance, charging the cost thereof to Borrower.
3.3. FAILURE TO DELIVER. Failure to deliver physical possession of any
instruments, documents or writings in respect of any Receivable to Lender shall
not invalidate Lender's security interest therein. To the extent that possession
may be required by applicable law for the perfection of Lender's security
interest, the original chattel paper and instruments representing the
Receivables shall be deemed to be held by Lender, although kept by the Borrower
as the custodial agent of Lender.
3.4. NOTICE OF COLLATERAL ASSIGNMENT. All contracts, documents or instruments
representing or evidencing a Receivable shall contain (by way of stamp or other
method satisfactory to Lender) the following language: "ASSIGNED TO GREYHOUND
FINANCIAL CORPORATION AS COLLATERAL".
3.5. LOCATION OF RECEIVABLES. Borrower shall, at any reasonable time and at
Borrower's own expense, upon Lender's request, physically deliver to Lender all
Receivables (including any instruments, documents or writings in respect of any
Receivable together with all instruments, documents or writings in respect of
any collateral securing each Receivable) assigned to Lender to any reasonable
place or places designated by Lender. All Receivables shall, regardless of their
location, be deemed to be under Lender's domination and control (with files so
labeled) and deemed to be in Lender's possession.
3.6. RECORDS AND INSPECTIONS. Borrower shall at all times keep complete and
accurate records pertaining to the Collateral, which records shall be current on
a daily basis and located only at the locations (SCHEDULE SECTION 3.2.). Lender
by or through any of its officers, agents, employees, attorneys or accountants,
shall have the right to enter any such locations, at any reasonable time or
times during regular business hours, for so long as Lender may desire, to
inspect the Collateral and to inspect, audit and make extractions or copies from
the books, records, journals, orders, receipts, correspondence or other data
relating to the Collateral or this Agreement.
3.7. ADDITIONAL DOCUMENTS. Borrower hereby agrees to execute any additional
documents or financing statements which Lender deems necessary in its reasonable
discretion in order to evidence Lender's security interest in the Collateral.
Borrower shall not allow any financing statement or notice of assignment of
accounts receivable, other than those executed in connection with this
Agreement, to be on file in any public office
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covering any Collateral, proceeds thereof or other matters subject to the
security interest granted to Lender.
3.8. COLLECTION. Borrower agrees at its own expense to promptly and
diligently collect each installment of all Receivables in trust for the
exclusive account of Lender, to hold Lender harmless from any and all loss,
damage, penalty, liability, fine or expense arising from such collection by
Borrower or its agents and to faithfully account therefor to Lender. Upon the
occurrence of a Default, Lender expressly retains the unqualified right at any
time it so elects to take over the collection of the Receivables.
3.9. BLOCKED ACCOUNTS. Upon the occurrence of a Default or an Event of
Default, at Lender's request, any checks, notes, drafts or any other payment
upon and/or proceeds of the Collateral received by Borrower (or any
subsidiaries, divisions, affiliates, proprietorships, shareholders, directors,
officers, employees, agents or those persons acting for or in concert with
Borrower), shall no later than the next Business Day following receipt thereof,
be delivered to Lender, at Lender's address set forth above, for application on
account of the Indebtedness and shall be reflected in the Statement of Account
as provided in Section 2.8 herein, until such time as Lender has established a
depository account at a bank for the deposit of such payments, made arrangements
for such deposits to be transferred to Lender daily and thereafter established a
lock-box arrangement or otherwise. Borrower shall (i) deposit or cause all
Items, as defined below, to be deposited in the special account so established
by Lender or transfer all Items to Lender for application on account of the
Indebtedness and to be reflected in the Statement of Account as provided in
Section 2.8 herein and (ii) maintain copies of all checks or other items of
payment and deposit slips related thereto, together with a collection report in
a form satisfactory to Lender. All cash payments, checks, drafts, or similar
items of payment upon and/or proceeds of the Receivables (collectively "Items")
by or for the account of Borrower shall be the sole and exclusive property of
Lender immediately upon the earlier of the receipt of such Items by Lender or
the receipt of such Items by Borrower; provided, however, that no such item
received by Lender shall constitute payment to Lender and be applied to reduce
the Indebtedness until the later of: (i) three (3) Business Days from collection
of such Item by Lender's depository bank, or (ii) such Item being actually
collected by Lender's depository bank and such collection being credited to
Lender's account. Notwithstanding anything to the contrary herein, all such
items of payment shall be deemed not received if the same is subsequently
dishonored or not duly credited to Lender's depository account for any reason
whatsoever.
3.10. PROTECTION OF RECEIVABLE RECORDS. Borrower hereby agrees to take the
following protective actions to prevent destruction of Borrower's Collateral and
records pertaining to such Collateral: (i) if Borrower maintains its Collateral
records on a manual system such records shall be kept in a fire proof cabinet or
on no less than a monthly basis, a record of all payments on Receivables and all
other matters relating to the Collateral shall be placed in an off site safety
deposit box (and Lender shall have access to such safety deposit box); or (ii)
if the Collateral records are computerized, Borrower agrees to create a tape or
diskette "back-up" of the computerized information and upon the
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request of Lender, provide Lender with a tape or diskette copy of such "back-up"
information.
3.11. USE OF COLLECTIONS AND MODIFICATION OF RECEIVABLES. Provided that
Lender has not required that Borrower remit all collections or proceeds of
Collateral to Lender, Borrower may use or dispose of the funds received on the
Receivables in the ordinary course of business (including returned or
repossessed goods), collect or compromise accounts or obligations and accept
returned goods or make repossessions, as Borrower shall determine based upon its
reasonable discretion.
3.12. USE OF PROCEEDS. Borrower shall use the proceeds of the Loan in the
ordinary course of business, solely in its operations for costs incurred in the
financing of Receivables, or for payments to Lender pursuant to Section 2.12
hereof.
3.13. RETURN OF COLLATERAL. Upon the payment in fall or renewal of any
Receivable to which the written documents evidencing such Receivable are held by
Lender, Borrower shall submit all requests for the return of such documents
pursuant to the "Request For Return of Collateral" form, a copy of which is
attached hereto as Exhibit "C".
3.14. LENDER'S PAYMENT OF CLAIMS. Lender may, in its sole discretion,
discharge or obtain the release of any security interest, lien, claim or
encumbrance asserted by any person against the Collateral. All sums paid by
Lender in respect thereof shall be payable, on demand, by Borrower to Lender and
shall be a part of the Indebtedness.
4. REPORTING REQUIREMENTS
4.1. ACCOUNTING PRACTICES. Borrower shall maintain (i) a modem system of
accounting in accordance with GAAP or other systems of accounting acceptable to
Lender and (ii) standard operating procedures applicable to all of its locations
with respect to the handling and disposition of cash receipts and other proceeds
of Collateral on a daily basis, including the depositing thereof, aging of
account receivables, record keeping and such other matters as Lender may
reasonably request. For the purpose of determining compliance with the covenants
and representations in the Loan Documents, Lender shall have the right to recast
any financial statement or report presented to Lender by or on behalf of
Borrower to comply with GAAP.
4.2. PLEDGE OF RECEIVABLES. Borrower hereby agrees to pledge all Receivables
and, if so requested by Lender, Borrower shall deliver to Lender all documents
evidencing Receivables of Borrower, no less often than on the twentieth (20th)
day of each calendar month during the term of this Agreement, together with the
Schedule of Receivables and Assignment, as set forth in Section 3.2 hereof.
4.3. ACCOUNT DEBTORS' ADDRESSES. Borrower agrees to furnish to Lender from
time to time, promptly upon request, a list of all Account Debtors' names and
their most current addresses. Borrower agrees that Lender may from time to time,
consistent with standard or generally accepted auditing practices, verify the
validity, amount and any other matters
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relating to the Receivables by means of mail, telephone or otherwise, in the
name of Borrower and upon the occurrence of an Event of Default in the name of
Lender or such other name as Lender may choose.
4.4. FINANCIAL REPORTS. Borrower shall furnish to Lender the following
financial statements and reports, in a form satisfactory to Lender:
A. As soon as practicable and in any event mailed within twenty (20) days
after the end of each fiscal month: (i) "Availability Report," in the form and
substance of Exhibit "D" attached hereto; (ii) Statement of Accounts Receivable
showing the detailed aging of each Receivable according to the procedures
(SCHEDULE SECTION 1.9.D.); (iii) a monthly Profit and Loss Statement and Balance
Sheet, certified by Borrower's chief financial officer or equivalent duly
elected officer of Borrower; and (iv) Schedule of Receivables and Assignment in
the form and substance of Exhibit "E" attached hereto.
B. Within ninety (90) days after the end of each of Borrower's fiscal years,
annual financial statements, or consolidated statements, as the case may be, of
Borrower prepared in accordance with GAAP, consistently applied and certified by
its chief financial officer or equivalent duly elected officer. The financial
statements shall be prepared by and under the method acceptable to Lender and
shall consist of a balance sheet as of the end of such fiscal year and
comparative statements of earnings, cash flows, and change in stockholders'
equity for such fiscal year (Schedule Section 4.4.).
C. With reasonable promptness, such other financial data as Lender may
reasonably request, including but not limited to tax returns, business plans and
reports.
Together with each delivery of financial statements required by subsections
A, B and C above, Borrower shall deliver to Lender and shall cause each of its
subsidiaries to deliver to Lender, if requested by Lender, a certificate in form
satisfactory to Lender, certifying that no Default or Event of Default exists
under this Agreement as of the date of such AMA, certificate, or if a Default or
an Event of Default exists, specifying the nature and period of existence
thereof and what action Borrower proposes to take with respect thereto.
4.5. FINANCIAL STATEMENTS OF GUARANTORS. Each of the Guarantors (SCHEDULE
SECTION 4.5.) shall furnish to Lender annual personal financial statements in
form reasonably satisfactory to Lender and certified by such Guarantor and a
copy of each Guarantor's personal Federal Income Tax Return (including all
schedules thereto and amendments thereof) filed during the term hereof, within
thirty (30) days of the filing of the same.
4.6. NOTICE OF CHANGES. Borrower shall promptly notify Lender in writing of
any change of its officers, directors or key employees; change of location of
its principal offices, change of location of any of its principal assets; any
acquisition, disposition or reorganization of any corporate subsidiary,
affiliate or parent of Borrower; change of Borrower's name; death or withdrawal
of any partner (if Borrower is a partnership); any sale or purchase out of the
regular course of Borrower's business; litigation of which
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Borrower or a Guarantor is a party; and any other material change in the
business or financial affairs of Borrower.
5. REPRESENTATIONS AND WARRANTIES OF BORROWERS AND GUARANTOR.
5.1. REPRESENTATIONS AND WARRANTIES. Borrower and Guarantor hereby
continuously represent and warrant to Lender as follows:
A. Borrower is a corporation duly incorporated, validly existing and in good
standing under the laws of the state of its incorporation, is duly qualified to
do business and is in good standing as a foreign corporation in all states where
such qualification is required, has all necessary corporate power and authority
to enter into this Agreement and each of the documents and instruments relating
hereto and to perform all of its obligations hereunder and thereunder.
B. Borrower operates its business only under the assumed names (SCHEDULE
SECTION 5.1.) and has not used any other assumed name for the operation of its
business activities for the previous seven (7) years.
C. Borrower has all requisite corporate right and power and is duly
authorized and empowered to enter into, execute, deliver and perform this
Agreement and all documents and instruments relating hereto and this Agreement
and all documents and instruments relating hereto are the legal, valid and
binding obligations of Borrower and are enforceable against Borrower in
accordance with their terms.
D. Each Guarantor is competent to enter into this Agreement and the Guaranty
and to perform all of Guarantor's obligations thereunder.
E. The execution, delivery and performance by Borrower of this Agreement does
not and shall not (i) violate any provision of any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award presently in effect
having applicability to Borrower; (ii) violate any provision of its Articles of
Incorporation or Bylaws; or (iii) result in a breach of or constitute a default
under any indenture or loan or credit agreement or any other agreement, lease or
instrument to which Borrower is a party or by which it or any of its assets or
properties may be bound or affected; and Borrower is not in default of any such
law, rule, regulation, order, writ, judgment, injunction, decree, determination
or award or any such indenture, agreement, lease or instrument.
F. No consent, approval, license, exemption of or filing or registration
with, giving of notice to, or other authorization of or by, any court,
administrative agency or other governmental authority is or shall be required in
connection with the execution, delivery or performance by Borrower for the valid
consummation of the transactions contemplated by this Agreement.
G. No event has occurred and is continuing which constitutes a Default or an
Event of Default, as defined in this Agreement. There is no action, suit,
proceeding or investigation
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pending or threatened against or affecting Borrower before or by any court,
administrative agency or other governmental authority that brings into
question the validity of the transactions contemplated hereby, or that might
result in any material adverse change in the businesses, assets, properties
or financial conditions of Borrower or Guarantor.
H. Borrower and/or Guarantor are not in default in the payment of any
taxes levied or assessed against either of them or any of their assets or
properties, except for taxes being contested in good faith and by appropriate
proceedings.
I. Borrower and Guarantor have good and marketable title to their assets
and properties as reflected in their financial statements furnished to
Lender.
J. Each of the financial statements furnished to Lender by the Borrower
and Guarantor was prepared in accordance with GAAP and fairly and accurately
reflects their financial condition as of the date thereof; and each hereby
certifies that there have been no material adverse changes in their
condition, financial or otherwise, since the date of such statements, and
there are no contingent liabilities not provided for or disclosed in such
statements.
K. Neither this Agreement, any Availability Report or any statement or
document referred to herein or delivered to Lender by Borrower and/or
Guarantor contains any untrue statement of a material fact or omits to state
a material fact necessary to make the statements made herein or therein not
misleading.
L. Borrower has good, indefeasible and merchantable title to and ownership
of the Collateral, free and clear of all liens, claims, security interests
and encumbrances, except those of Lender and except where such liens, claims,
charges, security interests and encumbrances are removed contemporaneously
with the execution of this Agreement or are subordinate to those of Lender,
in a form and substance acceptable to Lender.
M. All books, records and documents relating to the Collateral are and
shall be genuine and in all respects what they purport to be; the original
amount and the unpaid balance of each Receivable shown on the books and
records of Borrower and in the schedules represented as owing by each Account
Debtor is and shall be the correct amount actually owing or to be owing by
such Account Debtor at maturity; each Account Debtor liable upon the
Receivables has and shall have capacity to contract; Borrower has no
knowledge of any fact which would impair the validity or collectibility of
any of the Receivables; and the payments shown to have been made by each
Account Debtor on the books and records of Borrower shall reflect the amounts
of and dates on which said payments were actually made.
N. Borrower has places of business only at the locations (SCHEDULE SECTION
3.2.). Borrower shall not begin or do business (either directly or through
subsidiaries) at other locations or cease to do business at any of the above
locations or at Borrower's principal place of business without first
notifying Lender.
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O. The present value of all benefits vested under all Plans of Borrower or
any Commonly Controlled Entity (based on the assumptions used to fund the Plans)
did not, as of the last annual valuation date (which in case of any Plan was not
earlier than December 31, 1982) exceed the value of the assets of the Plans
applicable to such vested benefits.
P. The liability to which Borrower or any Commonly Controlled Entity would
become subject under Sections 4063 or 4064 of ERISA if Borrower or any Commonly
Controlled Entity were to withdraw from all Multi-employer Plans or if such
Multi-employer Plans were to be terminated as of the valuation date most
closely preceding the date hereof, is not in excess of One Thousand Dollars
($1,000.00);
Q. Borrower is not engaged nor shall it engage, principally or as one of its
important activities, in a business of extending credit for the purpose of
"purchasing" or "carrying" any margin stock" within the respective meanings of
each of the quoted terms under Regulations G or X of the Board of Governors of
the Federal Reserve System as now and from time to time hereafter in effect. No
part of the proceeds of any advances hereunder shall be used for "purchasing" or
"carrying" "margin stock" as so defined or for any purpose which violates, or
which would be inconsistent with, the provisions of the Regulations of such
Board of Governors. If requested by Lender, Borrower shall furnish to Lender a
statement in conformity with the requirement of Federal Reserve Form G-3
referred to in said Regulation G to the foregoing effect. All of the outstanding
securities of Borrower have been offered, issued, sold and delivered in
compliance with, or are exempt from, all federal and state laws and rules and
regulations of federal and state regulatory bodies governing the offering,
issuance, sale and delivery of securities.
R. Borrower is not an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
S. Each of the Exhibits and Schedules to this Agreement contain true,
complete and correct information.
T. To the best of Borrower's knowledge, the land and improvements owned or
leased by Borrower for use in its business operations are free of dangerous
levels of contaminates, oils, asbestos, radon, PCB's, hazardous substances or
waste as defined by federal, state or local environmental laws, regulations or
administrative orders or other materials, the removal of which is required or
the maintenance of which is prohibited, regulated or penalized by any federal,
state or local governmental authority.
U. Borrower is solvent, generally able to pay its obligations as they become
due, has sufficient capital to carry on its business and transactions and all
businesses and transactions in which it intends to engage, and the current value
of Borrower's assets, at fair saleable valuation, exceeds the sum of its
liabilities. Borrower shall not be rendered insolvent by the execution and
delivery of the Loan Documents and the consummation of the transactions
contemplated thereby and the capital remaining in Borrower is not now and shall
not foreseeably become unreasonably small to permit Borrower to carry on its
business and transactions and all businesses and transactions in which it is
about to
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engage. Borrower does not intend to, nor does it reasonably believe it shall,
incur debts beyond its ability to repay the same as they mature.
V. Lender has a perfected security interest in favor of Lender in all of
Borrower's right, title and interest in the Collateral, prior and superior to
any other security interest or lien, except any statutory or constitutional lien
for taxes not yet due and payable.
W. There are no material actions, suits or proceedings pending, or threatened
against or affecting the assets of Borrower or the consummation of the
transactions contemplated hereby, at law, or in equity, or before or by any
governmental authority or instrumentality or before any arbitrator of any kind.
Neither Borrower nor Guarantor is subject to any judgment, order, writ,
injunction or decree of any court or governmental agency. There is not a
reasonable likelihood of an adverse determination of any pending proceeding
which would, individually or in the aggregate, have a material adverse effect on
the business operations or financial condition of Borrower or Guarantor.
5.2. WARRANTIES AND REPRESENTATIONS AS TO ELIGIBLE RECEIVABLES. With respect
to Eligible Receivables, Borrower and Guarantor continuously warrant and
represent to Lender that during the term of this Agreement and so long as any of
the Indebtedness remains unpaid: (i) in determining which Receivables are
"Eligible Receivables," Lender may rely upon all statements or representations
made by Borrower; and (ii) those Receivables designated as Eligible Receivables
meet each requirement set forth below at the time any request for advance is
provided to Lender.
A. Eligible Receivables are genuine; are in all respects what they purport to
be; and are evidenced by at least one executed original instrument, agreement,
contract or document which has been or shall be delivered to Lender;
B. The Eligible Receivables represent undisputed, bona fide transactions
completed in accordance with the terms and provisions contained in any documents
related thereto;
C. The amounts of the face value shown on any schedule of Receivables
provided to Lender, and/or all invoices or statements delivered to Lender with
respect to any Eligible Receivables, are actually and absolutely owing to
Borrower and are not contingent for any reason;
D. No set-offs, counterclaims or disputes as to payments or liability thereon
exist or have been asserted with respect thereto and Borrower has not made any
agreement with any Account Debtor thereunder for any deduction therefrom, except
a discount or allowance allowed by Borrower in the ordinary course of its
business for prompt payment, all of which discounts or allowances are reflected
in the calculation of the outstanding amount of the Receivable;
E. No facts, events or occurrences exist that, in any way, impair the
validity or enforcement thereof or tend to reduce the amount payable thereunder
from the amount of
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the Receivable shown on any schedule, or on all contracts, invoices or
statements delivered to Lender with respect thereto;
F. All Account Debtors in connection with Eligible Receivables: (i) had the
capacity to contract at the time any contract or other document giving rise to
the Receivable was executed; and (ii) generally have the ability to pay their
debts as become due;
G. Within Borrower's knowledge, no proceedings or actions are threatened or
pending against any Account Debtor that might result in any material adverse
change in the Account Debtor's financial condition;
H. The Eligible Receivables have not been assigned or pledged to any other
person or entity;
I. The goods giving rise to the Eligible Receivables are not, and were not at
the time of the sale, rental and/or lease thereof, subject to any lien, claim,
encumbrance or security interest except those of Lender, those removed or
terminated prior to the date hereof or those subordinated to Lender's security
interest, by a subordination and standstill agreement acceptable to Lender;
J. The End of Month Delinquency set forth in Section 12 of the Availability
Report shall be delivered to Lender by Borrower hereunder as determined pursuant
to the Aging Procedures and Eligibility Test (SCHEDULE SECTION 1.9.D.).
6. COVENANTS AND OTHER AGREEMENTS
6.1. AFFIRMATIVE COVENANTS. During the term of this Agreement and so long as
any of THE INDEBTEDNESS remains unpaid, Borrower and Guarantor agree and
covenant, jointly and severally, that they shall:
A. Pay or cause to be paid currently all of their expenses, including all
payments on their obligations whenever due, as well as all payments of any and
all taxes of whatever nature when due. This provision shall not apply to taxes
or expenses which are due, but which are challenged in good faith.
B. Maintain, preserve, and protect the Collateral, including, but not limited
to, keeping documents, instruments or other written records otherwise evidencing
the Collateral in a fire proof cabinet.
C. Furnish to Lender written notice as to the occurrence any Default or Event
of Default hereunder.
D. Furnish to Lender notice of: (i) any development related to the business,
financial condition, properties or assets of Borrower or Guarantor, that would
have or has a materially adverse affect on such business, financial condition,
properties or assets, or
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ability to perform their obligations under this Agreement and (ii) any material
and adverse litigation or investigation to which either of them may be a party.
E. Carry on and conduct their business in the same manner and in the same
fields of enterprise as they are presently engaged, and Borrower shall preserve
its corporate existence, licenses or qualifications as a domestic corporation in
the jurisdiction of its incorporation and as a foreign corporation in every
jurisdiction in which the character of its assets or properties or the nature of
the business transacted by it at any time makes qualification as a foreign
corporation necessary, and to maintain all other material corporate rights and
franchises, provided, however, nothing herein shall be construed to prevent
Borrower from closing any retail location in the good faith exercise of its
business judgment.
F. Comply, and cause each affiliate to comply, with all statutes,
governmental rules and regulations applicable to them.
G. Permit and authorize Lender, without notifying Borrower or Guarantor, to
make such inquiries through business credit or other credit reporting services
concerning Borrower or Guarantor as Lender shall deem appropriate.
H. Provide Lender with evidence of insurance issued by a reputable carrier,
as reasonably required by Lender. This insurance shall reflect Lender as the
loss payee or additional insured, as required by Lender, and contain a provision
that Lender shall be notified by the carrier thirty (30) days prior to the
termination or cancellation of any such insurance.
I. Charge off the outstanding balance of all Receivables for which a payment
has not been received within One Hundred and Eighty (180) days of the
contractual due date of such payment. If such charge off is not reflected in
Borrower's monthly financial statements immediately following the expiration of
such One Hundred and Eight (180) day period, the amount of such outstanding
balance shall be deemed to be an intangible asset for the purpose of determining
Tangible Net Worth.
6.2. NEGATIVE COVENANTS. During the term of this Agreement and until the
Indebtedness secured hereby has been paid in full, Borrower and Guarantor
covenant and agree that they shall not, without Lender's prior written consent,
which consent shall not be unreasonably withheld, do any of the following:
A. Incur or permit to exist any mortgage, pledge, title retention lien or
other lien, encumbrance or security interest with respect to the Collateral now
owned or hereafter acquired by Borrower, except liens in favor of Lender.
B. Delegate, transfer or assign any of their obligations or liabilities under
this Agreement, or any part thereof, to any other person or entity.
C. Be a party to or participate in: (i) any merger or consolidation; (ii) any
purchase or other acquisition of all or substantially all of the assets or
properties or shares of any class
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of, or any partnership or joint venture interest in, any other corporation or
entity; (iii) any sale, transfer, conveyance or lease of all or substantially
all of Borrower's assets or properties; or (iv) any sale or assignment with or
without recourse of any Receivables.
D. Cause or take any of the following actions with respect to Borrower: (i)
redeem, retire, purchase or otherwise acquire, directly or indirectly, any of
Borrower's outstanding securities; or (ii) purchase or acquire, directly or
indirectly, any shares of capital stock, evidences of indebtedness or other
securities of any person or entity.
E. Amend, supplement or otherwise modify Borrower's Articles of Incorporation
or Bylaws which would have a material adverse affect on the condition and
operations, prospects or financial condition of the Borrower.
F. Incur, assume or suffer to exist any debt (including capitalized leases)
other than (i) the Indebtedness, (ii) accounts payable incurred in the ordinary
course of business, (iii) Subordinated Debt, or (iv) other Debt consented to in
writing by Lender.
G. Directly or indirectly make loans to, invest in, extend credit to, or
guaranty the debt of any person or entity, other than in the ordinary course of
Borrower's business.
H. Amend, modify, or otherwise change in any respect any material agreement,
instrument, or arrangement (written or oral) by which Borrower, or any of its
assets, are bound..
I. Allow Borrower to be owned and controlled directly or indirectly by any
person or entity other than the shareholders and senior management that own and
control Borrower as of the date hereof.
J. Permit the Leverage Ratio to be more than the Leverage Ratio Limit
(SCHEDULE SECTION 6.2.A.).
K. Permit the Net Income to be less than the Minimum Net Income requirement.
(SCHEDULE SECTION 6.2.B).
L. Make or allow Distributions, in the aggregate, to exceed the distributions
limitation (SCHEDULE SECTION 6.2.C.); provided, however, that no Distribution
shall be made if a Default or an Event of Default shall exist.
7. EVENTS OF DEFAULT AND REMEDIES
7.1. EVENTS OF DEFAULT. The occurrence of any one or more of the following
events shall constitute an "Event of Default":
A. If any payment of principal or interest or any other amount due Lender is
not paid within five (5) days after the same shall be due and payable.
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B. If Borrower or Guarantor fails or neglects to perform, keep or observe any
of the terms, provisions, conditions or covenants, contained in this Agreement,
any of the other Loan Documents or any other agreement or document executed in
connection with the transactions contemplated by this Agreement or if any
representation, warranty or certification made by Borrower herein or in any
certificate or other writing delivered pursuant hereto shall prove to be untrue
in any material respect as of the date upon which the same was made or at any
time thereafter, and the same is not cured to Lender's satisfaction within ten
(10) days after Lender has given written notice to Borrower identifying such
default.
C. If the validity or enforceability of any lien, charge, security interest,
mortgage, pledge or other encumbrance granted to Lender to secure the
Indebtedness shall be impaired in any respect or to any degree, for any reason,
or if any other lien, charge, security interest, mortgage, pledge or other
encumbrance shall be created or imposed upon the Collateral unless such lien,
charge, security interest, mortgage, pledge or other encumbrance is subordinate
to that of Lender, pursuant to a subordination and standstill agreement in a
form and substance acceptable to Lender.
D. If any judgment against Borrower not covered by insurance in an amount in
excess of Twenty-Five Thousand Dollars ($25,000.00), or any attachment or other
levy against the properties or assets of Borrower with respect to a claim for
any amount in excess of Twenty-Five Thousand Dollars ($25,000.00), remains
unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period
of thirty (30) days.
E. Default in the payment of any sum due under any instrument of indebtedness
for borrowed money owed by Borrower or any Guarantor to any person, or any other
default under such instrument of indebtedness for borrowed money that permits
such indebtedness for borrowed money to become due prior to its stated maturity
or permits the holders of such indebtedness for borrowed money to elect a
majority of the board of directors or manage the business of Borrower or any
Guarantor.
F. If a court or governmental authority of competent jurisdiction shall enter
an order, judgment or decree appointing, with or without Borrower's or
Guarantor's consent or acquiescence, a receiver, custodian, liquidator, trustee
or other officer with similar powers of Borrower or Guarantor or of the whole or
any substantial part of its properties or assets, or approving a petition filed
against Borrower or Guarantor seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the federal
bankruptcy laws or any other applicable law, and such order, judgment or decree
shall remain unvacated, unstayed or not set aside for an aggregate of thirty
(30) days (whether or not consecutive) from the date of the entry thereof or if
any petition seeking such relief shall be filed against Borrower or Guarantor
and such petition shall not be dismissed within thirty (30) days.
G. An event shall occur which shall have a material adverse affect on the
condition and operations, prospects or financial condition of the Borrower or
Xxxxxxxxx.
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X. If either Borrower or Guarantor shall: (i) be generally not paying their
respective debts as they become due; (ii) file a petition in bankruptcy or a
petition to take advantage of any insolvency act or other act for the relief or
aid of debtors; (iii) make an assignment for the benefit of their creditors;
(iv) consent to or acquiesce in the appointment of a receiver, custodian,
liquidator, trustee or other officer with similar powers of either of their
properties or assets; (v) file a petition or answer seeking reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under the federal bankruptcy laws or any other applicable law; (vi) be
adjudicated insolvent or be liquidated; (vii) admit in writing either of their
inability to pay debts as they become due; (viii) voluntarily suspend
transaction of usual business; or (ix) take any action, corporate or otherwise,
for the purpose of any of the foregoing.
I. Any of the following shall occur: (i) entry of a court order that enjoins,
restrains or in any way prevents Borrower from conducting all or any material
part of its business affairs in the ordinary course of business or (ii)
withdrawal or suspension of any license or authority required for the conduct of
any material part of Borrower's business.
J. If any Guarantor gives notice of termination or terminates his liability
pursuant to the Guaranty Agreement executed in conjunction with this Agreement.
K. The breach of terms or conditions of any Agency and Custodian Agreement
executed in conjunction with this Agreement.
7.2. ACCELERATION OF THE INDEBTEDNESS. Upon and after an Event of Default,
the outstanding principal balance together with all accrued but unpaid interest
on the Indebtedness and all other sums due and payable by Borrower to Lender
may, at the option of Lender and without demand, presentment, notice of
dishonor, notice of intent to demand or accelerate payment, diligence in
collecting, grace, notice and protest or a legal process of any kind, all of
which are hereby expressly waived, be declared, and immediately shall become due
and payable.
7.3. LOUISIANA CONFESSION OF JUDGMENT. In the event that Borrower is
domiciled in, or Collateral is located in, Louisiana, and to the extent of such
domicile or location where Louisiana law is applicable to this Agreement:
A. Borrower hereby confesses judgment, up to the full amount of principal,
interest and attorney's fees and for any sums that Lender may advance during the
life of this Agreement for the payment of premiums of insurance, taxes and
assessments or for the protection and preservation of this Agreement as
authorized elsewhere in this Agreement, and does by these presents, consent,
agree and stipulate that, in the event of any payment of principal or interest
due hereunder not being promptly and fully paid when the same becomes due and
payable, or in the event of failure to comply with any of the obligations set
forth herein, the Indebtedness shall, at the option of Lender become due and
payable, and it shall be lawful for Lender, without making a demand and without
notice or putting in default, the same being hereby expressly waived, to cause
all and singular the Collateral herein secured
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to be seized and sold by executory process issued by any competent court or to
proceed with enforcement of its security interest in any other manner provided
by law; and
B. Borrower hereby expressly waives: (a) the benefit of appraisement, as
provided in Articles 2332, 2336, 2723, and 2724, Louisiana Code of Civil
Procedure, and all other laws conferring the same; (b) the demand and three (3)
days delay according by Articles 2639 and 2721, Louisiana Code of Civil
Procedure, and all other laws conferring the same; (c) the notice of seizure
required by Articles 2293 and 2721, Louisiana Code of Civil Procedure, and all
other laws conferring the same; (d) the three (3) days delay provided by
Articles 2331 and 2722, Louisiana Code of Civil Procedure, and all other laws
conferring the same; and (e) the benefit of the other provisions of Articles
2331, 2722 and 2723, Louisiana Code of Civil Procedure, and all other Articles
not specifically mentioned above; and Borrower expressly agrees to the immediate
seizure of the Collateral in the event of suit thereon.
7.4. REMEDIES. Upon and after an Event of Default, Lender shall have the
following rights and remedies, which individual remedies shall be non-exclusive,
cumulative and in addition to each and every other remedy set forth in the Loan
Documents or in this Agreement:
A. All of the rights and remedies of a secured party under the Uniform
Commercial Code as enacted in the State of Arizona, as amended, or other
applicable law.
B. The right, to the fullest extent permissible by law, to: (i) enter upon
the premises of Borrower, or any other place or places where the Collateral is
located and kept, without any obligation to pay rent to Borrower, through
self-help and without judicial process, without first obtaining a final judgment
or giving Borrower notice and opportunity for a hearing on the validity of
Lender's claim, and remove the Collateral therefrom to the premises of Lender or
any agent of Lender, for such time as Lender may desire, in order to effectively
collect and liquidate the Collateral; and/or (ii) require Borrower to assemble
the Collateral and make it available to Lender at a place to be designated by
Lender, in Lender's reasonable discretion.
C. The right to sell or otherwise dispose of any or all Collateral in its
then condition at public or private sale or sales, in lots or in bulk, for cash
or on credit, all as Lender, in its discretion, may deem advisable; provided
that such sales may be adjourned from time to time with or without notice. The
requirement of reasonable notice to Borrower of the time and place of any public
sale of the Collateral or of the time after which any private sale either by
Lender or at its option, a broker, or any other intended disposition thereof is
to be made, shall be met if such notice is mailed, postage prepaid, to Borrower
at the address of Borrower designated herein at least ten (10) Business Days
before the date of any public sale or at least ten (10) Business Days before the
time after which any private sale or other disposition is to be made unless
applicable law requires otherwise.
Lender shall have the right to conduct such sales on Borrower's premises or
elsewhere and shall have the right to use Borrower's premises without charge for
such sales for such time or times as Lender may see fit. Lender is hereby
granted a license or other right to use,
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without charge, Borrower's labels, copyrights, rights of use of any name, trade
secrets, trade names, trademarks and advertising matter, or any property of a
similar nature, as it pertains to the Collateral, in advertising for sale and
selling any Collateral and Borrower's rights under all licenses and all
franchise agreements shall inure to Lender's benefit. Lender agrees to hold
Borrower harmless from any liability arising out of Lender's use of Borrower's
premises, labels, copyrights, rights of use of any name, trade secrets, trade
names, trademarks and advertising matter, or any property of a similar nature as
it pertains to advertising for sale, marshalling or selling the Collateral.
Lender shall have the right to sell, lease or otherwise dispose of the
Collateral, or any part thereof, for cash, credit or any combination thereof,
and Lender may purchase all or part of the Collateral at public or, if permitted
by law, private sale and, in lieu of actual payment of such purchase price, may
set off the amount of such price against the Indebtedness owing by Borrower to
Lender. The proceeds realized from the sale of any Collateral shall be applied
first to reasonable costs and expenses, attorney's fees, expert witness fees
incurred by Lender for collection and for acquisition, completion, protection,
removal, storage, sale and delivery of the Collateral; second to all payments,
other than principal and interest, due under this Agreement; third to interest
due upon any of the Indebtedness; fourth to the principal balance owing on the
Indebtedness; and fifth the remainder, if any, to Borrower, its successors or
assigns, or to whomsoever may be lawfully entitled to receive the same. If any
deficiency shall arise, Borrower shall remain liable to Lender therefor.
D. In the event that Borrower is domiciled in, or Collateral is located in,
Louisiana, and to the extent of such domicile or location where Louisiana law is
applicable to this Agreement, the right to cause all and singular the
hereinabove described Collateral to be seized and sold under executory process
without appraisement, appraisement being hereby expressly waived, as an entirety
or in parcels, as Lender may determine, to the highest bidder for cash.
E. The right to appoint or seek appointment of a receiver, custodian or
trustee of Borrower or any of its properties or assets pursuant to court order.
F. The right to cease all advances hereunder.
G. All other rights and remedies that Lender may have at law or in equity.
7.5. NO WAIVER. No delay, failure or omission of Lender to exercise any right
upon the occurrence of any Default or Event of Default shall impair any such
right or shall be construed to be a waiver of any such Default or Event of
Default or an acquiescence therein. Lender may, from time to time, in a writing
waive compliance by the other parties with any of the terms of this Agreement
and its rights and remedies upon any Default or Event of Default, and, Borrower
agrees that no waiver by Lender shall ever be legally effective unless such
waiver shall be acknowledged and agreed in writing by Lender. No waiver of any
Default or Event of Default shall impair any right or remedy of Lender not
specifically waived. No single, partial or full exercise of any right of Lender
shall preclude any other or further exercise thereof. No modification or
amendment of or supplement to
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this Agreement or any other written agreement between the parties hereto shall
be valid or effective (or serve as a basis of reliance by way of estoppel)
unless the same is in writing and signed by the party against whom it is sought
to be enforced. The acceptance by Lender at any time and from to time of a
partial payment or partial performance of any of Borrower's obligations set
forth herein shall not be deemed a waiver, reduction, modification or release
from any Default or Event of Default then existing. No waiver by Lender of any
Default or Event of Default shall be deemed to be a waiver of any other existing
or any subsequent Default or Event of Default.
7.6. GENERAL INDEMNIFICATION. Borrower hereby agrees to indemnify and hold
Lender harmless from and against any and all claims, liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements (collectively "Claim" or "Claims") of any kind or nature
whatsoever, asserted by any party other than Borrower, or with respect to
Borrower only as otherwise provided in this Agreement or pursuant to applicable
law regarding Lender's obligations to Borrower, which may be imposed on,
incurred by or asserted against Lender, or any of its officers, directors,
employees or agents (including accountants, attorneys or other professionals
hired by Lender) in any way relating to or arising out of the Loan Documents or
any action taken or omitted by Lender, or any of its officers, directors,
employees or agents (including accountants, attorneys or other professionals
hired by Lender) under the Loan Documents, except to the extent such indemnified
matters are finally found by a court to be caused by Lender's gross negligence
or willful misconduct.
7.7. APPLICATION OF PROCEEDS. After an Event of Default shall have occurred
and is continuing, all amounts received by Lender on account of any Indebtedness
and realized by Lender with respect to the Collateral, including any sums which
may be held by Lender, or the proceeds of any thereof, shall be applied in the
same manner as proceeds of Collateral as set forth in Section 7.4.C. hereof.
7.8. APPOINTMENT OF LENDER AS ATTORNEY-IN-FACT. Borrower irrevocably
designates, makes, constitutes and appoints Lender (and all persons reasonably
designated by Lender), with full power of substitution, as Borrower's true and
lawful attorney-in-fact (and not agent-in-fact) and Lender, or Lender's agent,
may, without notice to Borrower, and at such time or times thereafter as Lender
or said agent, in its discretion, may determine, in Borrower's or Lender's name,
at no duty or obligation on Lender, do the following:
A. All acts and things necessary to fulfill Borrower's administrative duties
pursuant to this Agreement, including, but not limited to, the execution of
financing statements;
B. Upon the occurrence of any Default, all acts and things necessary to
fulfill Borrower's obligations under this Agreement and the Loan Documents,
except as set forth in Section 7.8.C below, at the cost and expense of Borrower.
C. In addition to, but not in limitation of, the foregoing, at any time or
times upon the occurrence of an Event of Default, Lender shall have the right:
(i) to enter upon Borrower's premises and to receive and open all mail directed
to Borrower and remove all payments to
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Borrower on the Receivables; however, Lender shall turn over to Borrower all of
such mail not relating to Receivables; (ii) in the name of Borrower, to notify
the Post Office authorities to change the address for the delivery of mail
addressed to Borrower to such address as Lender may designate (notwithstanding
the foregoing, for the purposes of notice and service of process to or upon
Borrower as set forth in this Agreement, Lender's rights to change the address
for the delivery of mail shall not give Lender the right to change the address
for notice and service of process to or upon Borrower in this Agreement); (iii)
demand, collect, receive for and give renewals, extensions, discharges and
releases of any Receivable; (iv) institute and prosecute legal and equitable
proceedings to realize upon the Receivables; (v) settle, compromise, compound or
adjust claims in respect of any Receivable or any legal proceedings brought in
respect thereof; (vi) generally, sell in whole or in part for cash, credit or
property to others or to itself at any public or private sale, assign, make any
agreement with respect to or otherwise deal with any of the Receivables as fully
and completely as though Lender were the absolute owner thereof for all
purposes, except to the extent limited by any applicable laws and subject to any
requirements of notice to Borrower or other persons under applicable laws; (vii)
take possession and control in any manner and in any place of any cash or
non-cash items of payment or proceeds of Receivables; (viii) endorse the name of
Borrower upon any notes, acceptances, checks, drafts, money orders, chattel
paper or other evidences of payment of Receivables that may come into Lender's
possession; and (vii) sign Borrower's name on any instruments or documents
relating to any of the Collateral, or on drafts against Account Debtors.
The appointment of Lender as attorney-in-fact for Borrower is coupled with an
interest and is irrevocable.
8. MISCELLANEOUS
8.1. REIMBURSEMENT FOR EXPENSES. Upon the occurrence of a Default, except as
set forth in the SCHEDULE SECTION 8.1., Borrower agrees to reimburse Lender,
upon demand, for all reasonable out-of-pocket expenses (including costs of
establishing and maintaining accounts or arrangements set forth in Section 3.9,
attorney's fees, expert witness fees and legal expenses) incurred in connection
with the evaluation of collateral, preservation of collateral, or collection of
the indebtedness.
8.2. NOTICES. All notices, demands, xxxxxxxx, requests and other written
communications hereunder shall be deemed to have been properly given: (i) upon
personal delivery; (ii) on the third Business Day following the day sent, if
sent by registered or certified mail; (iii) on the next Business Day following
the day sent, if sent by overnight express courier; or (iv) on the day sent or
if such day is not a Business Day on the next Business Day after the day sent if
sent by telecopy providing the receiving party has acknowledged receipt by
return telecopy, in each case, to Lender, Borrower or Guarantors at its address
and/or telecopy number as set forth in this Agreement or Schedule Section 8.2,
or at such other address and/or telecopy number as either party may designate
for such purpose in a written notice given to the other party.
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Lender shall have the right, on or after initial funding pursuant to the
terms of this Agreement, to issue a press release or other brochure announcing
the consummation of the Loan Documents and to distribute that information to
third parties in the normal course of Lender's business, at no cost to Borrower.
8.3. PARTICIPATIONS. Borrower and Guarantors acknowledge and agree that
Lender may from time to time sell or offer to sell interests in the Indebtedness
and the Loan Documents to one or more participants. Borrower and Guarantors
authorize Lender to disseminate any information it has pertaining to the
Indebtedness, including without limitation, complete and current credit
information on Borrower and any of its principals and Guarantors, to any such
participant or prospective participant.
8.4. SURVIVAL OF AGREEMENTS. All of the various representations, warranties,
covenants and agreements of Borrower (including without limitation, any
agreements to pay costs and expenses and to indemnify Lender) in the Loan
Documents shall survive the execution and delivery of the Loan Documents and the
performance under such Loan Documents, and shall further survive until one (1)
year and one (1) month after all of the Indebtedness is paid in full to Lender
and all of Lender's obligations to Borrower under the Loan Documents are
terminated.
8.5. NO OBLIGATION BEYOND MATURITY. Borrower agrees and acknowledges that
upon the Maturity Date, Lender shall have no obligation to renew, extend, modify
or rearrange the Loan and shall have the right to require all amounts due and
owing under the Loan to be paid in full upon such date.
8.6. PRIOR AGREEMENTS SUPERSEDED. This Agreement constitutes the sole and
only agreement of the parties hereto and supersedes any prior understandings or
written or oral agreements between the parties respecting the subject matter of
this Agreement. No provision of this Agreement or other document or instrument
relating hereto may be modified, waived or terminated except by instrument in
writing executed by the party against whom a modification, waiver or termination
is sought to be enforced.
8.7. PARTIES BOUND. This Agreement shall be binding on and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors and assigns, except as
otherwise expressly provided for herein. Borrower and Guarantor shall not assign
any of their respective rights or obligations pursuant this Agreement.
8.8. NUMBER AND GENDER. Whenever used herein, the singular number shall
include the plural and the plural the singular, and the use of any gender shall
be applicable to all genders. The duties, covenants, obligations and warranties
of Borrower in this Agreement shall be joint and several obligations of Borrower
and of each Borrower if more than one.
8.9. NO THIRD PARTY BENEFICIARY. This Agreement is for the sole benefit of
Lender and Borrower and is not for the benefit of any third party.
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8.10. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed to be an original, and all
of which taken together shall constitute but one and the same instrument.
8.11. SEVERABILITY OF PROVISIONS. Any provision which is determined to be
unconscionable, against public policy or any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
8.12. HEADINGS. The Article and Section headings used in this Agreement are
for convenience only and shall not affect the construction of this Agreement.
8.13. SCHEDULES AND EXHIBITS. Any and all exhibits hereto are hereby
expressly incorporated by reference as though fully set forth at that point
verbatim. All terms and provisions as defined or set forth in Article I and in
any Schedule are hereby incorporated into and made a part of this Agreement.
Each reference in this Agreement and the Schedule hereto to any information or
definitions contained in Article I or the Schedule shall mean and refer to the
information or definitions as set forth in Article I and the Schedule unless the
context specifically requires otherwise. Any terms used in Article I and in the
Schedule which are not defined shall have the meanings ascribed to such terms,
as of the date of this Agreement, by the Uniform Commercial Code as enacted in
the State of Arizona to the extent the same are defined therein.
8.14. FURTHER INSTRUMENTS. Borrower and Guarantors shall from time to time
execute and deliver, and shall cause each of Borrower's subsidiaries to execute
and deliver, all such amendments, supplements and other modifications hereto and
to the other Loan Documents and all such financing statements or continuation
statements, instruments of further assurance and any other instruments, and
shall take such other actions, as Lender reasonably requests and deems necessary
or advisable in furtherance of the agreements contained herein.
8.15. LENDER'S EXPENSES AND ATTORNEY'S FEES. UPON AND AFTER AN EVENT OF
DEFAULT, LENDER SHALL BE ENTITLED TO RECOVER FROM BORROWER AND GUARANTORS ALL OF
LENDER'S ATTORNEY'S FEES AND REASONABLE COSTS AND EXPENSES INCURRED IN THE
EXERCISE OF LENDER'S RIGHTS SET FORTH IN THIS AGREEMENT, AND ALL DAMAGES
SUSTAINED BY LENDER BY REASON OF MISREPRESENTATION, BREACH OF WARRANTY OR BREACH
OF COVENANT OF BORROWER HEREIN, EXPRESSED OR IMPLIED, WHETHER CAUSED BY THE ACTS
OR DEFAULTS OF BORROWER, ACCOUNT DEBTORS OR OTHERS; INCLUDING WITHOUT
LIMITATION, ALL ATTORNEY'S FEES ARISING FROM SUCH SERVICES, EXPERT WITNESS FEES
AND ANY EXPENSES, COSTS AND CHARGES RELATING THERETO, AND ALL OF THE FOREGOING
SHALL CONSTITUTE PART OF THE INDEBTEDNESS SECURED BY THE COLLATERAL AND SHALL BE
PAYABLE ON DEMAND.
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8.16. GOVERNING LAW. THIS AGREEMENT HAS BEEN EXECUTED AND DELIVERED BY
BORROWER AND GUARANTOR AND ACCEPTED BY LENDER IN MARICOPA COUNTY, ARIZONA AND
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS
OPPOSED TO THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF ARIZONA.
8.17. JURISDICTION AND VENUE. TO INDUCE THE LENDER TO ENTER INTO THIS
AGREEMENT, BORROWER, GUARANTORS AND LENDER IRREVOCABLY AGREE THAT, SUBJECT TO
THE LENDER'S ELECTION, ALL ACTIONS OR PROCEEDINGS IN ANY WAY, MANNER OR RESPECT,
ARISING OUT OF OR FROM OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR
THE COLLATERAL SHALL BE LITIGATED IN COURTS HAVING SITUS WITHIN THE COUNTY OF
MARICOPA, STATE OF ARIZONA. BORROWER, GUARANTORS AND LENDER HEREBY CONSENT AND
SUBMIT TO THE JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN
SAID COUNTY AND STATE AND WAIVE PERSONAL SERVICE OF ANY AND ALL PROCESS UPON
BORROWER, AND AGREE THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED
MAIL DIRECTED TO BORROWER AT THE ADDRESS SET FORTH IN SCHEDULE SECTION 8.17 AND
SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON ACTUAL RECEIPT THEREOF.
8.18. WAIVER. EXCEPT AS OTHERWISE PROVIDED FOR IN THIS AGREEMENT AND TO THE
EXTENT NOT PROHIBITED BY APPLICABLE LAW, BORROWER AND EACH GUARANTOR HEREBY
WAIVES (i) PRESENTMENT, DEMAND AND PROTEST AND NOTICE OF PRESENTMENT, PROTEST,
DEFAULT, NON-PAYMENT, MATURITY, RELEASE, COMPROMISE, SETTLEMENT, AND ONE OR MORE
EXTENSIONS OR RENEWALS OF ANY OR ALL ACCOUNTS, CONTRACT RIGHTS, DOCUMENTS,
INSTRUMENTS, CHATTEL PAPER AND GUARANTIES AT ANY TIME HELD BY THE LENDER ON
WHICH BORROWER MAY IN ANY WAY BE LIABLE AND HEREBY RATIFIES AND CONFIRMS
WHATEVER THE LENDER MAY DO IN THIS REGARD; (ii) ALL RIGHTS TO NOTICE AND HEARING
PRIOR TO THE LENDER'S TAKING POSSESSION OR CONTROL OF, OR THE LENDER'S REPLEVIN,
ATTACHMENT OR LEVY ON OR OF THE COLLATERAL OR ANY BOND OR SECURITY WHICH MIGHT
BE REQUIRED BY ANY COURT PRIOR TO ALLOWING THE LENDER TO EXERCISE ANY OF THE
LENDER'S REMEDIES; AND (iii) THE BENEFIT OF ALL VALUATION, APPRAISEMENT OR
EXEMPTION LAWS.
8.19. ADVICE OF COUNSEL. BORROWER AND EACH GUARANTOR ACKNOWLEDGES THAT THEY
HAVE BEEN REPRESENTED AND ADVISED BY INDEPENDENT LEGAL COUNSEL WITH RESPECT TO
THE NEGOTIATION, EXECUTION AND ACCEPTANCE OF THIS AGREEMENT AND THE TRANSACTION
GOVERNED BY THIS AGREEMENT AND SPECIFICALLY WITH RESPECT TO THE PROVISIONS
CONTAINED IN SECTIONS 7.3, 8.15, 8.16, 8.17, 8.18, 8.19 and 8.20 HEREOF AND HAS
RELIED UPON THE ADVICE OF ITS INDEPENDENT LEGAL COUNSEL IN AGREEING TO THE TERMS
AND CONDITIONS HEREIN AND IN EXECUTING AND DELIVERING T HIS AGREEMENT, AND THAT
THEY HAVE FREELY AND VOLUNTARILY ENTERED INTO THIS AGREEMENT AS THE PRODUCT OF
ARMS' LENGTH NEGOTIATIONS.
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8.20. WAIVER OF RIGHT TO TRIAL BY JURY. LENDER, BORROWER AND GUARANTORS
HEREBY COVENANT AND AGREE THAT IN ANY SUIT, ACTION OR PROCEEDING IN RESPECT OF
ANY MATTER ARISING OUT OF THIS AGREEMENT, THE DOCUMENTS EXECUTED IN CONNECTION
HEREWITH, ANY WRITTEN AGREEMENT BETWEEN THE PARTIES HERETO, WHETHER NOW EXISTING
OR HEREAFTER ARISING OR IN ANY WAY RELATED TO, CONNECTED WITH OR INCIDENTAL TO
THE DEALINGS OF THE PARTIES HERETO OR TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE. TRIAL SHALL BE TO A
COURT OF COMPETENT JURISDICTION AND NOT TO A JURY: LENDER, BORROWER AND EACH
GUARANTOR HEREBY EXPRESSLY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY. ANY
PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF
THEIR RIGHT TO TRIAL BY JURY.
8.21. TIME OF ESSENCE. Time is of the essence for the performance the
obligations set forth in this Agreement and the Loan Documents.
(Intentionally Left Blank)
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year first set forth above.
BORROWER:
XXXXXXX FINANCE COMPANY
By:
------------------------------- -------------
Date
GUARANTORS:
LENDER:
GREYHOUND FINANCIAL CORPORATION, a Delaware corporation
By:
------------------------------- -------------
Date
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FIFTH AMENDED AND RESTATED SCHEDULE TO
LOAN AND SECURITY AGREEMENT
BORROWER: XXXXXXX FINANCE COMPANY ("LEAD BORROWER")
XXXXXXX FINANCE OF LOUISIANA, INC.
XXXXXXX FINANCE COMPANY OF MISSOURI, INC.
XXXXXXX FINANCE COMPANY HOLDINGS, INC.
XXXXXXX FINANCE COMPANY OF ILLINOIS, INC.
ADDRESS: 000 XXXXXX XXXXXX
XXXXX XXXXX, XXXXXXX 00000
DATE: JANUARY 29,1999
This Fifth Amended and Restated Schedule ("Fifth Amended Schedule") is
executed in conjunction with a certain Loan and Security Agreement
("Agreement") dated December 21, 1994, as an amendment and restatement, and not
a Aemmmibon, of that certain Schedule to Loan and Security Agreement ("Original
Schedule"), dated December 21, 1994, that certain Amended and Restated Schedule
to Loan and Security Agreement ("Amended Schedule"), dated February 6, 1996,
that certain Second Amended and Restated Schedule to Loan and Security
Agreement ("Second Amended Schedule"), dated December 30, 1997, that certain
Third Amended and Restated Schedule to Loan and Security Agreement ("Third
Amended Schedule"), dated September 18, 1998 and that certain Fourth Amended
and Restated Schedule to Loan and Security Agreement ("Fourth Amended
Schedule"), dated December 15,1998, by and between FINOVA Capital Corporation,
previously known as Greyhound Financial Corporation, as Lender, and the above
Borrowers, as Borrowers. Each Borrower shall be separately defined as set forth
in this Fourth Amended and Restated Schedule. All representations, warranties,
covenants, agreements, undertakings or other obligations of Borrowers as set
forth in the Agreement and all other Loan Documents are made by each Borrower
as if separately set forth for each Borrower in the Agreement and the other
Loan Documents. All financial covenants and ratios set forth herein shall be
applied to the Borrowers in the aggregate. All references to Section numbers
herein refer to Sections in the Agreement. The terms of this Fifth Amended
Schedule shall supersede the terms and provisions of the Original Schedule,
Amended Schedule, Second Amended Schedule and Fourth Amended Schedule.
Xxxxxxx Finance Company Holdings, Inc. ("Xxxxxxx Holdings"), Xxxxxxx
Finance Company of Missouri, Inc. ("Xxxxxxx of Missouri; and Xxxxxxx Finance
Company of Illinois, Inc. ("Xxxxxxx of Illinois") are hereby added to the
Agreement as a coborrowers. All references to "Borrower"in the Agreement and all
other Loan Documents shall include both Xxxxxxx Holdings, Xxxxxxx of Missouri
and Xxxxxxx of Illinois, jointly and severally, except for those provisions that
specifically identify any Borrower separately.
Xxxxxxx Holdings, Xxxxxxx of Missouri and Xxxxxxx of Illinois,
hereby acknowledge and agree that Xxxxxxx Holdings, Xxxxxxx of Missouri and
Xxxxxxx of Illinois, shall be added to the Agreement and all other Loan
Documents, as a co-borrower with Xxxxxxx Finance Company and Xxxxxxx Finance of
Louisiana, Inc., and hereby assumes all obligations and liability as a
co-borrower hereunder. Xxxxxxx Holdings, Xxxxxxx of Missouri and Xxxxxxx of
Illinois additionally acknowledge and agree that Xxxxxxx Holdings, Xxxxxxx of
Missouri and Xxxxxxx of Illinois shall receive a material consideration and
benefit for the credit facility evidenced by the Loan Documents.
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1.A. BORROWERS (SECTION 1).
All references to "Borrower" in any and all Loan Documents
are hereby modified to include the following Borrowers, as
co-borrowers, jointly and severally:
Xxxxxxx Finance Company "Xxxxxxx" or "Lead Borrower"
Xxxxxxx Finance of Louisiana, Inc. "Xxxxxxx of Louisiana"
Xxxxxxx Finance Company Holdings, Inc. "Xxxxxxx Holdings"
Xxxxxxx Finance Company of Missouri, Inc. "Xxxxxxx of Missouri"
Xxxxxxx Finance Company of Illinois, Inc. "Xxxxxxx of Illinois"
1.9.A. MAXIMUM AMOUNT OF AN ELIGIBLE RECEIVABLE (SECTION 1.9).
The term "Maximum Amount of an Eligible Receivable" shall
mean the sum of Five Thousand Dollars ($5,000.00) remaining
due thereon at any date of determination.
1.9.13. MAXIMUM TERM OF AN ELIGIBLE RECEIVABLE (SECTION 1.9).
The "Maximum Term of an Eligible Net Receivable" shall be
twenty-four(24) months remaining until the due date of such
Eligible Receivable at any date of determination.
1.9.C. RECEIVABLE LIMITATIONS - EXPANDED (SECTION 1.9).
Notwithstanding the provisions of Section 1.9, up to ten
percent (10%) of the aggregate dollar amount of Eligible
Receivables may be composed of Receivables which exceed the
Maximum Amount or the Maximum Term of an Eligible Receivable,
provided said Receivables satisfy all other requirements of
this Section 1.9, and do not exceed the amount of Fifteen
Thousand Dollars ($15,000.00), excluding all unearned finance
charges, time price differentials, insurance fees and other
fees and charges pursuant to the Eligible Receivables
remaining due thereon at any date of determination and do not
exceed sixty (60) months remaining until the due date of such
Eligible Receivable at any date of determination.
1.9.D. AGING PROCEDURES AND ELIGIBILITY TEST (SECTION 1.9).
AGING PROCEDURES FOR A CONTRACTUAL AGING:
1. No payment missed or due = Current.
2. 1 to 30 days past due = "30 day Account".
3. 31 to 60 days past due = "60 day Account".
4. 61 or to 90 days past due = "90 day Account".
5. 91 or more days past due = "90 + day Account".
2
34
For the purpose only of calculating the aging of any Receivable hereunder,
Borrower may only grant an Account Debtor two extensions of the principal
portion of a monthly payment due on any Receivable within any twelve (12) month
period that would allow such Receivable to avoid being classified in a
different "past due or missed" payment category set forth above. All extensions
within any twelve (12) month period in excess of two (2) will not be used to
delay or defer aging of such Receivable.
ELIGIBILITY TEST:
The term "Eligibility Test" shall mean the test to determine the eligibility of
a Receivable for the purposes of Section 1.9 hereof, that test, being as
follows: no payment due on said Receivable remains unpaid more than ninety (90)
days from the specific date on which such payment was due pursuant to the terms
of said Receivable.
1.27 ADDITIONAL DEFINITIONS (SECTIONS 1.27 AND 1.28).
The following definitions shall be added in their entirety to
the Loan Agreement:
1.27 CHARGE OFFS. The term "Charge Offs"shall mean
the amount due (including the principal balance plus
all earned fees and charges) pursuant to a
Receivable on the date that Borrower charges off
such Receivable as uncollectible, pursuant to
Borrower's policies and/or procedures
1.28 COLLATERAL RECOVERY RATE. The term "Collateral
Recovery Rate" shall mean, for any period of
determination, (i) the total cash collected from all
Receivables (including but not limited to all cash
proceeds from charge off recoveries), divided by
(ii) the sum of (a) the total cash collected from
all Receivables (excluding all cash proceeds from
charge off recoveries) plus (b) the aggregate of all
Charge Offs for that period.
2.1.A. AMOUNT OF REVOLVING CREDIT LINE (SECTION 2.1):
Seven Million Dollars ($7,000,000.00)
(i) If the date of determination is on or before April
____, 1999, then the Amount of Revolving Credit Line
shall be Seven Million Dollars ($7,000,000.00). Five
Hundred Thousand Dollars ($500,000.00) of the above
Seven Million Dollars ($7,000,000.00) represents a
temporary overline granted to Borrower that expires
on April 30, 1999.
(ii) If the date of determination is after April 30,1999,
then the Amount of Revolving Credit Line shall be
Six Million Five Hundred Thousand Dollars
($6,500,000.00).
2.1.13. AVAILABILITY ON ELIGIBLE RECEIVABLES (SECTION 2.1):
The "Availability on Eligible Receivables" shall be an amount equal to
sixty-five percent (65%) of the aggregate unmatured and unpaid amount due to
Borrower from the Account Debtor named thereon, including all unearned finance
charges, time price differentials, insurance fees and other fees and charges
pursuant to the Eligible Receivables
3
35
Notwithstanding any provision contained in the Loan Documents to the contrary,
if (i) on the last day of any calendar month immediately prior to any date of
determination, the aggregate outstanding balance of all Receivables that are
more than thirty (30) days past due divided by the aggregate outstanding
balance of all Receivables is greater than fifteen percent (15%); (ii) for the
calendar month immediately prior to any date of determination the cash
collections from all Receivables received by Borrower during such month of
determination divided by the aggregate outstanding balance of all Receivables,
as of the first day of such month of determination, is less than ten percent
(10%); or (iii) if, for the twelve (12) calendar month period immediately prior
to any date of determination, the Collateral Recovery Rate is less than
eighty-five percent (85%), then upon the occurrence of either event, Lender, in
its sole and absolute discretion, may modify the Availability on Eligible
Receivables advance percentage set forth above:
2.2. STATED INTEREST RATE (SECTION 2.2).
The lesser of (i) the Governing Rate plus three percent
(3.00%) per annum; or (ii) the Maximum Rate.
2.3. MATURITY DATE (SECTION 2.3.C).
The primary term of this Agreement shall expire on January
31, 2002. If Borrower desires to extend the primary term or
any term thereafter of this Agreement, Borrower shall give
Lender notice of its intent to extend the term no earlier
than one hundred and eighty (180) days and no later than one
hundred and fifty (150) days prior to any expiration date of
this Agreement. Upon the receipt by Lender of Borrowers
notice to extend the term of this Agreement, if Lender
desires to renew and extend the term of this Agreement,
Lender shall give Borrower notice of Lender's intent to
extend the term of this Agreement, within sixty (60) days of
Lender's receipt of Borrowers notice to extend. If Lender
does not give Borrower notice of Lender's intent to extend
the term of this Agreement within the sixty (60) days period,
then it shall be deemed that Lender does not intend to renew
and extend the term of this Agreement. Notwithstanding the
foregoing, this Agreement shall remain in full force and
effect until the Indebtedness due and owing to Lender has
been paid in full.
2.6. VOLUNTARY PREPAYMENTS (SECTION 2.6)
Section 2.6 of the Loan and Security Agreement is here by
deleted in its entirety and the following is substituted in
lieu thereof:
2.6. VOLUNTARY PREPAYMENTS.
Borrower may, at its option, voluntarily prepay the
Indebtedness in full at any time, provided, however,
that Borrower has given Lender ninety (90) days
written notice of any such intention to prepay the
Indebtedness in full, and if before January 31,
2001, Borrower pays the balance of the Indebtedness
in full and Borrower requests Lender to terminate
Lender's security interest in the Collateral, the
liquidated damages shall be an amount equal to one
percent (1.00%) of the highest balance of the
Indebtedness outstanding on or after January 31,
1998, but before January 31, 2002.
2.14 JOINT AND LEAD BORROWER PROVISIONS (SECTIONS 2.14,2.15 AND 2.16)
4
36
The following Sections 2.14, 2.15 and 2.16 are hereby added
to the Agreement:
"2.14 APPLICATION OF PAYMENTS. All payments and collections
shall be deemed to be comprised of a pro rata remittance or
payment made by each Borrower, based upon the proportion that
each Borrower's Eligible Receivables bear to the aggregate of
all Eligible Receivables of the Borrowers, as of the date on
which such remittance or payment is received by Lender. In
the event such remittance or payment shall be made by the
Lead Borrower, acting as agent or trustee for the other
Borrowers, each Borrower shall be deemed to have made their
proportionate amount of such remittance or payment to Lender
by and through such agent or trustee.
2.15. ADVANCES TO LEAD BORROWER. Borrower does hereby
irrevocably agree that in the event Lender makes advances to
Lead Borrower, as agent or trustee for each of Borrower, as
contemplated in Section 2.16, each such advance shall be
deemed to be made to each Borrower based upon a proportion
that each Borrower's Eligible Receivables bear to the
aggregate of all Eligible Receivables of Borrower,
notwithstanding any subsequent disbursement of said advance
by the Lead Borrower, acting as agent or trustee for the
Borrowers. In the event that the actual advances, direct or
indirect, received by Lead Borrower or any other Borrower or
the balance due to Lender as shown in the records of any
Borrower shall be disproportionate when compared to the
proportion of the Eligible Receivables of each Borrower,
whether by way of subsequent disbursements by Lead Borrower,
acting as agent or trustee, by way of Lender electing to make
advances to each Borrower, as contemplated in Section 2.16 or
otherwise, such disproportionalities shall be deemed to have
occurred by virtue of loans made between and among Borrowers.
2.16 APPOINTMENT OF AGENT. Lender agrees that, in the sole
discretion of Lender, Borrower may, by written notice to
Lender, designate a Lead Borrower to receive advances from
Lender, make payments to Lender, communicate with Lender and
generally represent the interests of the Borrowers with
respect to the subject matter of this Agreement;
notwithstanding the foregoing, Lender may, at its sole
discretion and upon notice to each of the Borrowers, make
advances directly to each of the Borrowers, require that
payments due hereunder be made to Lender by each of the
Borrowers, require each of the Borrowers to communicate
directly with Lender, for its own account, and generally deal
independently and separately with each of the Borrowers.
Until so notified by Lender, each of the Borrowers hereby
agree that any and all funds advanced by Lender pursuant to
the terms of this Agreement, shall be advanced to the Lead
Borrower and may be deposited or transferred into the general
corporate account of Lead Borrower, as agent and/or trustee
for Borrowers. Lead Borrower hereby agrees to keep detailed
and accurate records of all such disbursements made to any
other Borrowers. Lead Borrower hereby agrees to keep detailed
and accurate records of all loans and dealings between or
among Lead Borrowers and the other Borrowers. Borrowers agree
to furnish copies of such records to Lender upon request.
Each Borrower, other than the Lead Borrower hereby
irrevocably makes, constitutes, designates and appoints Lead
Borrower as its agent and/or trustee with full power to
receive all notices, request all Advances hereunder and to
deal generally with Lender as agent and/or trustee for the
Borrowers and Lead Borrower is hereby granted full power and
authority to bind the Borrowers in respect of any term,
condition, covenant or undertaking embraced in this
Agreement. Lender may, without liability or responsibility to
the Borrowers rely upon the instructions or other
communications of Lead Borrower on behalf of each of the
Borrowers in connection with any notifications, requests or
communications required or permitted to be given hereunder
with the same force and effect as if actually given by each
Borrower; each Borrower hereby agrees to indemnify and hold
Lender harmless from and against any liability, claim, suit,
action, penalty, fine or damage arising out of or incurred in
connection with Lender's reliance upon communications from
Lead Borrower on behalf of the Borrowers. It is specifically
understood and agreed that any Advance made hereunder by
Lender to Lead Borrowershall be considered and treated as an
Advance to the Borrowers and each
5
37
Borrower shall be jointly and severally liable therefor."
3.2. BUSINESS LOCATIONS OF BORROWER (SECTIONS 3.2,3.6 AND 5.1.N.).
All locations are as follows on attached Exhibit "A"
3.15 CROSS COLLATERALIZATION (SECTION 3.15)
The following Section 3.15 is hereby added to the Agreement:
"3.15 CROSS COLLATERALIZATION. Each Borrower agrees
that the Collateral of each Borrower pledged
hereunder shall secure all of the obligations of the
Borrowers to Lender hereunder. Upon and after an
Event of Default by any Borrower, Lender may pursue
all rights and remedies it may have against all or
any part of the Collateral regardless of the status
of legal title to such Collateral. Each Borrower
hereby acknowledges that this Cross Collateral-
ization of their Collateral is in consideration of
Lender's extending the credit hereunder and mutually
beneficial to each Borrower."
4.4. ANNUAL FINANCIAL STATEMENTS (SECTION 4.4).
Annual audited financial statements to be prepared
by certified public accountants, acceptable to
Lender.
4.5. GUARANTOR (WHETHER ONE OR MORE) (SECTION 4.5).
Xxxx Xxxxxxxx Xxxxxxx, Xx. and Xxxxxx Xxxxxxx
5.1. BORROWER'S TRADENAMES (WHETHER ONE OR MORE)(SECTION 5.1.B.)
None
6.1. AFFIRMATIVE COVENANTS (SECTION 6.1.1).
The following Section 6.1.1 shall be deleted in its entirety
from the Loan and Security Agreement:
"Charge off the outstanding balance of all Receivables for
which a payment has not been received within One Hundred and
Eighty (180) days of the contractual due date of such
payment. If such charge is not reflected in Borrower's
monthly financial statements immediately following the
expiration of such One Hundred and Eighty (180) day period,
the amount of such outstanding balance shall be deemed to be
an intangible asset for the purpose of determining Tangible
Net Worth."
6
38
6.2. NEGATIVE COVENANTS (SECTIONS 6.2.J., 6.2.K AND 6.2.L).
The following covenants set forth in Sections 6.2.J., 6.2.K.
and 6.21. shall be deleted in its entirety from the Loan and
Security Agreement:
"J. Permit the Leverage Ratio to be more than the
Leverage Ratio Limit."
"K. Permit the Net Income to be less than the
Minimum Net Income requirement."
"L. Make or allow Distributions, in the
aggregate, to exceed the distributions
limitation; provided, however, that no
Distributions shall be made if a Default or
an Event of Default shall exist."
6.3. JOINT NEGATIVE COVENANTS
The following Joint Negative Covenants shall be added as
Sections 6.3.A., 6.3.B., 6.3.C., 6.3.D. and 6.3.E. to the
Loan and Security Agreement:
"6.3. JOINT NEGATIVE COVENANTS. During the term of
this Agreement until the Indebtedness secured hereby
has been paid in full, both Borrowers, as defined in
(Schedule Section 1.A.) jointly covenant and agree
that they shall not, allow or permit any of the
following, which covenants shall be applied in the
aggregate by combining each element of such
financial covenants for each Borrower:
A. Permit the aggregate Leverage Ratio
to be more than the Leverage Ratio
Limit. The term "Leverage Ratio
Limit"shall mean 4.0 to 1.0.
B. Permit the aggregate Net Income to
be less than the Minimum Net Income
Requirement. The Minimum Net Income
requirement shall be One Dollar
($1.00) for each fiscal month.
C. Make or allow Distributions, in the
aggregate, to exceed, without
Lender's prior written consent,
which consent shall not be
unreasonably withheld, the
Distributions Limitation: provided,
however, that no Distribution shall
be made if a Default or an Event of
Default shall exist. The
Distributions Limitation shall be
Seventy-Five percent (75%) of Net
Income
D. Allow Borrower's Minimum Tangible
Net for any fiscal year of
Borrower. Worth, on any date of
determination, to be One Dollar
($1.00), to be determined as of
the last day of each fiscal month
during the term hereof.
E. Allow Borrower's Minimum Tangible
Net Worth and Subordinated Debt,
to be Seven Million Five Hundred
Thousand Dollars, to be determined
as of the last day of each fiscal
month during the term hereof.
8.1. REIMBURSEMENT OF EXPENSES (SECTION 8.1).
None in addition of those otherwise set forth in the Loan
Documents.
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39
8.2. NOTICES (SECTION 8.2).
Lender: FINOVA Capital Corporation (copy each
office below with all notices)
CORPORATE FINANCE OFFICE:
FINOVA Capital Corporation
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Senior Vice
President
Telephone: (000) 000-0000
Telecopy No.: (000) 000-0000
CORPORATE OFFICE:
FINOVA Capital Corporation
0000 X. Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. X'Xxxxx, Senior Counsel
Telephone: (000) 000-0000
Telecopy No.: (000) 000-0000
REDISCOUNT FINANCE OFFICE:
FINOVA Capital Corporation
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx (Account Executive)
Telephone: (000) 000-0000
Telecopy No.: (000) 000-0000
Borrower: Xxxxxxx Finance Company
Xxxxxxx Finance of Louisiana, Inc.
Xxxxxxx Finance Company Holdings, Inc.
Xxxxxxx Finance Company of Missouri, Inc.
Xxxxxxx Finance Company of Illinois, Inc.
000 Xxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Telephone:
-------------------------
Telecopy No.
-----------------------
Guarantor: Xxxx Xxxxxxxx Xxxxxxx, Xx. and
Xxxxxx Xxxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Telephone:
------------------------
Telecopy No.
-----------------------
8.17. AGENT FOR SERVICE OF PROCESS (SECTION 8.17).
Xxxx Xxxxxxxx Xxxxxxx, Xx., whose address is 000 Xxxxxx
Xxxxxx, Xxxxx Xxxxx, XX 00000. (Agent)
8
40
IN WITNESS WHEREOF, the parties have executed this Schedule on the day and year
first set forth above.
LENDER:
FINOVA CAPITAL CORPORATION,
a Delaware corporation
By:
-------------------------------------------------
(Signature)
----------------------------------------------------
(Printed Name and Title) (Date)
BORROWER:
XXXXXXX FINANCE COMPANY
By:
-------------------------------------------------
(Signature)
Xxxx Xxxxxxxx Xxxxxxx, Xx., President
----------------------------------------------------
(Printed Name and Title) (Date)
XXXXXXX FINANCE OF LOUISIANA, INC.
By:
-------------------------------------------------
(Signature)
Xxxx Xxxxxxxx Xxxxxxx, Xx., President
----------------------------------------------------
(Printed Name and Title) (Date)
XXXXXXX FINANCE COMPANY OF MISSOURI, INC.
By:
-------------------------------------------------
(Signature)
Xxxx Xxxxxxxx Xxxxxxx, Xx., President
----------------------------------------------------
(Printed Name and Title) (Date)
XXXXXXX FINANCE COMPANY OF ILLINOIS, INC.
By:
-------------------------------------------------
(Signature)
Xxxx Xxxxxxxx Xxxxxxx, Xx., President
----------------------------------------------------
(Printed Name and Title) (Date)
9
41
XXXXXXX FINANCE COMPANY HOLDINGS, INC.
By:
-------------------------------------------------
(Signature)
Xxxx Xxxxxxxx Xxxxxxx, Xx., President
----------------------------------------------------
(Printed Name and Title) (Date)
GUARANTORS:
----------------------------------------------------
Xxxx Xxxxxxxx Xxxxxxx, Xx.
----------------------------------------------------
Xxxxxx Xxxxxxx
10
42
EXHIBIT "A"
000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Victory Square Shopping Center
0000 X. Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
0000 Xxxxx Xxxxx Xx.
Xxxxxxxx, XX 00000
0000 XxXxxxx Xxxx., Xxxxx 00X
Xxxxxxx, XX 00000
000 X. Xxx Xxxxxx
Xxxxxxxx, XX
000 Xxxxxx Xxx.
X.X. Xxx 000
Xxxxx Xxxxx, XX 00000
0000 Xxx Xxxx Xxx.
Xxxxx, XX 00000
000 X. Xxxxxxxxx Xx.
P. 0. Xxx 0000
Xxxxxxxx, XX 00000
0000 Xxxxx Xxxx.
Xxxxxx, XX 00000
0000 Xxx Xxxxxx
Xxxxxxxxxx, XX 00000
0000-X Xxxx Xxxxx Xx.
Xxxxxxxxxx, XX
Willowood Shopping Center
0000 Xxxxxxxxx Xxxx
Xxxxxx, XX 00000
000 Xxxxx Xxxxxx
X. 0. Xxx 000
Xxxxxxxx, XX 00000
0000 Xxxxxx Xxx.
Xxxxxxx, XX 00000
0000-X Xxxxxx Xxx.
Xxx Xxxxxxx, XX 00000
000 Xxxxxxxx Xxxxx
Xxxxx, XX 00000
0000 Xxxxxxx Xxxx.
Xxx Xxxxxxx, XX 00000
000 Xxxxxxxxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
0000 Xxxx Xxxxx Xx., Xxxxx 0
Xxxx Xxxxx, XX 00000
000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
0000 Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
000 Xxxxx Xxxxxx
Xxxx Xxxxxxx, XX 00000
0000 Xxxxxxx, Xxxxx X
Xxxxxxxxxx, XX 00000
0000 Xxxxxxx Xxx.
Xxxxxxxx, XX 00000
0000 Xxxxxxxxx Xx., Xxxxx 00
Xx. Xxxxxxxxxx, XX 00000
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
0000-X Xxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
000 Xxx. 00 Xxxxx
Xxxxx, XX 00000
0000 Xxxxxxxxxx Xx., Xxxxx 0
Xxxxxx, XX 00000
0000 Xxxx Xxxxxx Xx., Xxxxx X
Xxxxxxx, XX 00000
0000 Xxxx Xxxx, Xxxxx X
Xxx Xxxxxx, XX 00000
000 Xxxxxxxxxxx Xxx.
Xxxxxxxxx, XX 00000
0000-X Xxxxxx Xxxxxx Xxxx
Xxxxxxx, XX
00 Xxxxxxxx Xx., X.X., Xxxxx 00
Xxxxxxx, XX
000 Xxxxx Xxxxxxx Xxxx
Xxxxx, XX 00000
11
43
0000 Xxxxx Xxxxxx
Xxxx Xx. Xxxxx, XX 00000
000 X. Xxxxxx, Xxxxx #000
Xx. Xxxxx, XX 00000
0000 X. 00 Xx.
Xx. Xxxxx, XX 00000
000 X. Xxxxxx Xx.
Xxxxxx, XX 00000
12
