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Exhibit 4.9
[FINOVA FINANCIAL INNOVATORS LOGO]
SECOND AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
FLORIDA FINANCE GROUP INC.
LIBERTY FINANCE COMPANY
SMART CHOICE RECEIVABLES HOLDING COMPANY
FIRST CHOICE AUTO FINANCE, INC.
Co-Borrowers
Florida Finance Group, Inc.'s XXXX No.00-0000000
Liberty Finance Company's XXXX No. 00-0000000
Smart Choice Receivables Holding Company's XXXX No. 00-0000000
First Choice Auto Finance, Inc.'s XXXX No. 00-0000000
0000 X. XXXXXXXXXX
XXXXXXXXXX, XXXXXXX 00000-0000
Address for Florida Finance Group, Inc., Liberty Finance Company
and First Choice Auto Finance, Inc.
X.X. XXX 00000
XXXXXXXXX, XXXXXX 00000
Address for Smart Choice Receivables Holding Company
$100,000,000.00
Amount of Loan
NOVEMBER 9, 1998
(DATE)
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REDISCOUNT FINANCE
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TABLE OF CONTENTS
1. DEFINITIONS...................................................................................2
1.1. ACCOUNT DEBTOR.......................................................................2
1.2. AGREEMENT............................................................................2
1.3. BUSINESS DAY.........................................................................2
1.4. CHARGE OFFS..........................................................................2
1.5. CODE.................................................................................2
1.6. COLLATERAL...........................................................................2
1.7. COLLATERAL PERFORMANCE PERCENTAGE....................................................2
1.8. COLLATERAL RECOVERY RATE.............................................................2
1.9. COMMONLY CONTROLLED ENTITY...........................................................2
1.10. COST OF GOODS SOLD...................................................................2
1.11. DEFAULT..............................................................................2
1.12. DISTRIBUTIONS........................................................................2
1.13. ELIGIBLE INVENTORY...................................................................2
1.14. ELIGIBLE RECEIVABLES.................................................................2
1.15. ERISA................................................................................3
1.16. GAAP.................................................................................3
1.17. GUARANTOR............................................................................3
1.18. GUARANTY AGREEMENT...................................................................3
1.19. GOVERNING RATE.......................................................................3
1.20. INCLUDED REBATE PERCENTAGE...........................................................3
1.21. INCLUDED REBATES.....................................................................3
1.22. INDEBTEDNESS.........................................................................3
1.23. INVENTORY............................................................................3
1.24. INVENTORY BORROWER...................................................................4
1.25. INVENTORY CREDIT FACILITY............................................................4
1.26. LEVERAGE RATIO.......................................................................4
1.27. LOAN DOCUMENTS.......................................................................4
1.28. MAXIMUM RATE.........................................................................4
1.29. NET INCOME...........................................................................4
1.30. NONPAYMENT NET RECEIVABLE REDUCTIONS.................................................4
1.31. NOTE.................................................................................4
1.32. PLAN.................................................................................4
1.33. RECEIVABLES..........................................................................4
1.34. RECEIVABLES BORROWERS................................................................4
1.35. RECEIVABLES CREDIT FACILITY..........................................................4
1.36. REQUEST FOR ADVANCE..................................................................4
1.37. SCHEDULE.............................................................................4
1.38. SUBORDINATED DEBT....................................................................4
1.39. TANGIBLE NET WORTH...................................................................4
2. LOAN ..............................................................................................5
2.1. AMOUNT OF LOAN.......................................................................5
2.2. INTEREST RATE........................................................................5
2.3. PAYMENTS.............................................................................5
2.4. PAYMENT DUE ON A NON-BUSINESS DAY....................................................5
2.5. MANDATORY PAYMENTS...................................................................5
2.6. VOLUNTARY PREPAYMENTS................................................................5
2.7. MAXIMUM INTEREST; CONTROLLING AGREEMENT..............................................6
2.8. INTEREST AFTER DEFAULT...............................................................6
2.9. STATEMENT OF ACCOUNT.................................................................7
2.10. APPLICATION OF PAYMENTS..............................................................7
2.11. ALLOCATION OF PAYMENTS...............................................................7
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2.12. ADVANCES TO LEAD BORROWER...........................................................7
2.13. APPOINTMENT OF AGENT................................................................7
2.14. TERMINATION FEE.....................................................................8
2.15. INVENTORY CREDIT LINE...............................................................8
2.16. RECEIVABLES CREDIT FACILITY.........................................................8
3. SECURITY..........................................................................................8
3.1. SECURITY INTEREST...................................................................8
3.2. FINANCING STATEMENTS AND FURTHER ASSURANCES.........................................9
3.3. PLEDGE OF RECEIVABLES...............................................................9
3.4. FAILURE TO DELIVER..................................................................9
3.5. NOTICE OF COLLATERAL ASSIGNMENT.....................................................9
3.6. LOCATION OF RECEIVABLES.............................................................9
3.7. RECORDS AND INSPECTIONS.............................................................9
3.8. ADDITIONAL DOCUMENTS................................................................9
3.9. COLLECTION..........................................................................9
3.10. BLOCKED ACCOUNTS....................................................................10
3.11. PROTECTION OF RECEIVABLE RECORDS....................................................10
3.12. USE OF COLLECTIONS AND MODIFICATION OF RECEIVABLES..................................10
3.13. USE OF PROCEEDS.....................................................................10
3.14. RETURN OF COLLATERAL................................................................10
3.15. LENDER'S PAYMENT OF CLAIMS..........................................................10
3.16 CROSS COLLATERALIZATION.............................................................10
4. CONDITIONS OF CLOSING; SUBSEQUENT ADVANCES........................................................10
4.1. INITIAL ADVANCE.....................................................................10
4.2. SUBSEQUENT ADVANCES.................................................................12
4.3. ORAL REQUEST FOR ADVANCE............................................................12
4.4. ALL ADVANCES TO CONSTITUTE ONE LOAN.................................................12
4.5. ADVANCES............................................................................12
5. REPRESENTATIONS AND WARRANTIES OF BORROWERS AND GUARANTOR.........................................12
5.1. REPRESENTATIONS AND WARRANTIES......................................................12
5.2. WARRANTIES AND REPRESENTATIONS AS TO ELIGIBLE RECEIVABLES...........................14
6. COVENANTS AND OTHER AGREEMENTS....................................................................15
6.1. AFFIRMATIVE COVENANTS...............................................................15
6.2. NEGATIVE COVENANTS..................................................................16
6.1. REPORTING REQUIREMENTS AND ACCOUNTING PRACTICES.....................................16
6.2. PLEDGE OF RECEIVABLES......................................................16
6.3. ACCOUNT DEBTORS' ADDRESSES..........................................................17
6.4. FINANCIAL REPORTS...................................................................17
6.5. FINANCIAL STATEMENTS OF GUARANTORS..................................................17
6.6. NOTICE OF CHANGES...................................................................17
7. EVENTS OF DEFAULT AND REMEDIES....................................................................17
7.1. EVENTS OF DEFAULT...................................................................18
7.2. ACCELERATION OF THE INDEBTEDNESS....................................................19
7.3. LOUISIANA CONFESSION OF JUDGMENT....................................................19
7.4. REMEDIES............................................................................19
7.5. NO WAIVER...........................................................................20
7.6. APPLICATION OF PROCEEDS.............................................................20
7.7. APPOINTMENT OF LENDER AS ATTORNEY-IN-FACT...........................................20
8. EXPENSES AND INDEMNITIES..........................................................................21
8.1. REIMBURSEMENT FOR EXPENSES..........................................................21
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8.2. LENDER'S EXPENSES AND ATTORNEY'S FEES...............................................21
8.3. GENERAL INDEMNIFICATION.............................................................21
9. MISCELLANEOUS.......................................................................21
9.1. NOTICES.............................................................................21
9.2. PARTICIPATIONS......................................................................22
9.3. SURVIVAL OF AGREEMENTS..............................................................22
9.4. NO OBLIGATION BEYOND MATURITY.......................................................22
9.5. PRIOR AGREEMENTS SUPERSEDED.........................................................22
9.6. PARTIES BOUND.......................................................................22
9.7. NUMBER AND GENDER...................................................................22
9.8. NO THIRD PARTY BENEFICIARY..........................................................22
9.9. EXECUTION IN COUNTERPARTS...........................................................22
9.10. SEVERABILITY OF PROVISIONS..........................................................22
9.11. HEADINGS............................................................................22
9.12. SCHEDULES AND EXHIBITS..............................................................22
9.13. FURTHER INSTRUMENTS.................................................................22
9.14. LENDER'S EXPENSES AND ATTORNEY'S FEES...............................................23
9.15. GOVERNING LAW.......................................................................23
9.16. JURISDICTION AND VENUE..............................................................23
9.17. WAIVER..............................................................................23
9.18. ADVICE OF COUNSEL...................................................................23
9.19. WAIVER OF RIGHT TO TRIAL BY JURY....................................................23
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[FINOVA FINANCIAL INNOVATORS LOGO]
Rediscount Finance
SECOND AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
BORROWER: FLORIDA FINANCE GROUP INC.
LIBERTY FINANCE COMPANY
FIRST CHOICE AUTO FINANCE, INC.
ADDRESS: 0000 X. XXXXXXXXXX
XXXXXXXXXX, XXXXXXX 00000-0000
BORROWER: SMART CHOICE RECEIVABLES HOLDING COMPANY
ADDRESS: P. O. XXX 00000
XXXXXXXXX, XX 00000
DATE: DECEMBER 13, 1999
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THIS SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT is entered into on
the above date between FINOVA CAPITAL CORPORATION, a Delaware corporation
("Lender"), whose corporate address is Xxxx Xxxxx, Xxxx Xxxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx 00000 and whose Rediscount Finance Office address is 00000 Xxxx
Xxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 and the borrowers named above (collectively
referred to herein as the "Borrowers" and singularly as "Borrower"), all of
whose chief executive offices are located at the above addresses (collectively
referred to herein as "Borrowers' Address"), as an amendment and restatement to
that certain Loan and Security Agreement, dated February 24, 1994 and that
certain First Amended and Restated Loan and Security Agreement, dated February
4, 1997, and not an extinguishment of any obligations evidenced thereby. The
terms and provisions set forth herein and in the other documents executed in
conjunction herewith shall supersede all prior agreements.
Each Borrower shall be separately defined as set forth in the Schedule.
All representations, warranties, covenants, agreements, undertaking or other
obligations of Borrowers as set forth in this Agreement and all other Loan
Documents are made by each Borrower as if separately set forth for each Borrower
in this Agreement and the other Loan Documents. All financial covenants and
ratios set forth herein shall be applied to the Borrowers in the aggregate,
except as otherwise specifically set forth in the Loan Documents.
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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. 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.
1.5. CODE. The term "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
1.6. COLLATERAL. The term "Collateral" shall have the meaning set forth in
Section 3.1. hereof.
1.7. COLLATERAL PERFORMANCE PERCENTAGE. The term "Collateral Performance
Percentage" shall mean, on any date of determination, the percentage determined
by the aggregate of all of the outstanding balances, including accrued interest,
for all Receivables that are sixty (60) days or more past due or are otherwise
ineligible Receivables divided by the aggregate of all of the outstanding
balances, including accrued interest, for all Receivables.
1.8. 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, with such charge off recoveries calculated at wholesale value),
divided by (ii) the sum of (a) the Included Rebates plus (b) the total cash
collected from all Receivables (excluding all cash proceeds from charge off
recoveries) plus (c) the aggregate of all Charge Offs for that period.
1.9. 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.
1.10. COST OF GOODS SOLD. The term "Cost of Goods Sold" shall mean, with
respect to the vehicle that secures the repayment of a Receivable, the sum of
(i) the direct cost paid for such vehicle, (ii) reconditioning costs, (iii)
taxes paid with respect to the sale of such vehicle, (iv) cost of registration
and application for title and (v) all commissions paid by Borrower with respect
to the sale of such vehicle that generated such Receivable.
1.11. 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).
1.12. DISTRIBUTIONS. The term "Distributions" shall mean any dividends or
other distribution of earnings to Borrower's shareholders.
1.13. ELIGIBLE INVENTORY. The term "Eligible Inventory" shall mean
Inventory 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) consist of motor vehicles available for resale to consumers,
which are not obsolete or unmerchantable (ii) do not exceed the Maximum Mileage
of Eligible Inventory (SCHEDULE SECTION 1.13.A.), the Maximum Age of Eligible
Inventory (SCHEDULE SECTION 1.13.B.) or the Maximum Cost of Eligible Inventory
(SCHEDULE SECTION 1.13.C.); (iii) meets all standards imposed by any
governmental agency or authority; (iv) conforms in all respects to the
warranties and representations set forth herein; (v) is at all times subject to
Lender's duly perfected, first priority security interest; (vi) is situated at a
First Choice location (SCHEDULE SECTION 3.2); (v) Lender has in its possession,
the certificate of title or other similar document (with all prior liens
released), together with applicable assignments or other transfer documents
which if file with the appropriate governmental agency could transfer such title
to Borrower; (vi) such vehicle is not purchased from an entity that has any
common ownership, direct or indirect, with that of Borrower; (vi) such vehicle
has not been repossessed by Borrower or any entity that has any common
ownership, direct or indirect, with that of Borrower; and (vii) such vehicle not
be owned by Borrower for more than the Maximum Ownership (SCHEDULE SECTION
1.3.D.)
1.14. 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 a
vehicle or the rendering of services in connection with such sale in the
ordinary course of Borrower's business; (ii) represent a valid and
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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, except as granted in this Agreement; (viii) neither the Account
Debtor thereon 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 Receivable or
jeopardizes any security therefor; (x) if the Receivable arose 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 SECTION 1.14.A.) and the original term thereof
does not exceed the Maximum Term of an Eligible Receivable (SCHEDULE SECTION
1.14.B.); (xiii) meets the Eligibility Test and has been reported to Lender in
compliance with the Aging Procedures (SCHEDULE SECTION 1.14.C.); (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; (xviii) payments under the Receivable are to be made in United States
dollars; (xix) the number of days between contractual payment dates of the
Receivable does not exceed thirty-one (31) days, and (xxi) with respect to the
Receivable, Lender has in Lender's possession the original contract or agreement
that evidences the primary payment obligation of the Account Debtor and the
original certificate of title or other evidence of title, pursuant to applicable
law, or evidence that such certificate of title or other evidence has been
properly applied for with the proper state agency or department for the issuance
of such certificate or other evidence, satisfactory in form and substance to
Lender.
1.15. ERISA. The term "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time.
1.16. GAAP. The term "GAAP" shall mean generally accepted accounting
principles and other standards as promulgated by the American Institute of
Certified Public Accountants.
1.17. 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 1.17).
1.18. GUARANTY AGREEMENT. The term "Guaranty Agreement" shall mean that
certain agreement executed by the Guarantor, in a form and substance approved by
Lender.
1.19. 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.
1.20. INCLUDED REBATE PERCENTAGE. The term "Included Rebate Percentage"
shall mean, for any period of determination, the percentage determined by
dividing (i) the aggregate of all Charge Offs for that period, by (ii) the
Nonpayment Net Receivable Reductions for that period.
1.21. INCLUDED REBATES. The term "Included Rebates" shall mean, for any
period of determination, (i) the aggregate of all rebates of interest for that
period, multiplied by (ii) the Included Rebate Percentage.
1.22. 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.
1.23. INVENTORY. The term "Inventory" shall mean all of Borrower's now
owned and hereafter acquired motor vehicles, wherever located, held for sale to
consumer, that are not vehicles primarily used for a commercial purpose
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or for a off-road purpose and all documents of title or other documents
representing ownership of such assets.
1.24. INVENTORY BORROWER. The term "Inventory Borrower" shall mean First
Choice Auto Finance, Inc..
1.25. INVENTORY CREDIT FACILITY. The term "Inventory Credit Facility" shall
mean the credit facility as set forth in Section 2.15.
1.26. LEVERAGE RATIO. The term "Leverage Ratio" shall mean, at any date of
determination, total liabilities of Borrower, including the outstanding balance
of the Indebtedness, less the outstanding balance due pursuant to all
Subordinated Debt, divided by the sum of the amount of Borrower's Tangible Net
Worth plus the outstanding balance due pursuant to all Subordinated Debt.
1.27. 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.
1.28. 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.
1.29. 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 5.4(A) and 5.4(B) hereof.
1.30. NONPAYMENT NET RECEIVABLE REDUCTIONS. The term "Nonpayment Net
Receivable Reductions" shall mean, for any period of determination, the sum of
(i) the aggregate of all Charge Offs for that period, plus (ii) the aggregate of
all net refinanced balances of Receivables for that period.
1.31. NOTE. The term "Note" shall mean the promissory note of even date
herewith, and all renewals, extensions, or modifications executed by Borrower
and payable to the order of Lender.
1.32. 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.
1.33. 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.
1.34. RECEIVABLES BORROWERS. The term "Receivables Borrowers" shall mean,
collectively, Florida Finance Group, Inc., Liberty Finance Company and Smart
Choice Receivables Holding Company.
1.35. RECEIVABLES CREDIT FACILITY. The term "Receivables Credit Facility"
shall mean the credit facility as set forth in Section 2.16.
1.36. 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.
1.37. 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.
1.38. 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 to the prior payment in full of the
Indebtedness pursuant to a subordination and standstill agreement, in a form and
substance satisfactory to Lender, entered into by all holders of Subordinated
Debt.
1.39. 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.
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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 outstanding the lesser
of the following: (i) the Amount of Revolving Credit Line (SCHEDULE SECTION
2.1.A.) or (ii) the sum of (a) the Availability on Eligible Receivables
(SCHEDULE SECTION 2.1.B.), (b) the Availability on Eligible Inventory (SCHEDULE
SECTION 2.1.C.). 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 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. PAYMENTS. All payments made by mail or other physical
delivery methods to Lender shall be payable at FINOVA Capital Corporation, File
No. 96425, P. O. Xxx 0000, Xxxxxxxxx, XX 00000-0000. All payments made by wire
transfer or other method of electronic transfer methods to Lender shall be
payable to FINOVA Capital Corporation, CITIBANK, NEW YORK, NEW YORK, ABA# 021
000 089, ACCOUNT NAME: FINOVA CAPITAL CORP., ACCOUNT NUMBER: 4068-0485,
REFERENCE: REDISCOUNT FINANCE, ZQX(CLIENT ACCT. #XXX )ZQX.) All payments
received pursuant to this Agreement by wire transfer or other electronic
transfer method, where immediate credit occurs, shall be applied to Borrower's
Indebtedness on the Business Day of actual receipt of such payment by Lender's
depository bank, payments received by any other method 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.
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, 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 and request a termination of Lender's
security interest in the collateral, provided, however, that Borrower has given
Lender ninety (90) days written notice of any such intention to prepay the
Indebtedness in full, Borrower requests Lender to terminate its security
interest in the Collateral and as liquidated damages, not as a penalty, pays to
Lender the amount of liquidated damages ("Liquidated Damages") (SCHEDULE SECTION
2.6). Borrower may not make such prepayment prior to the expiration of such
ninety (90) day period. Upon written notice of Borrower's intent to prepay the
Indebtedness in
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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, charged or received
in connection with the loan evidenced hereby, would exceed the maximum contract
rate 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. INTEREST AFTER DEFAULT. Upon the occurrence and during the continuation
of an Event of Default, Borrower shall pay Lender interest on the daily
outstanding balance of Borrower's loan account at a rate per annum which is
greater of (not to exceed the Maximum Rate): (i) the four percent (4%) in excess
of the highest Stated Interest Rate which would otherwise be
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applicable thereto pursuant to the Schedule (SCHEDULE SECTION 2.2), or (ii)
sixteen percent (16%).
2.9. 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 thirty (30) days after receipt
of such statement.
2.10. APPLICATION OF PAYMENTS. The amount of all payments or amounts
received by Lender with respect to the Indebtedness shall be applied to the
extent applicable under this Agreement: (i) first, to accrued interest through
the date of such payment, including any Interest After Default; (ii) then, to
any late fees, overdue risk assessments, examination fees and expenses,
collection fees and expenses and any other fees and expenses due to Lender
hereunder; and (iii) last, the remaining balance, if any, to the unpaid
principal balance of the Indebtedness; provided, however, while a Default exists
under the Loan Documents, each payment hereunder shall be applied to amounts
owed to Lender by Borrower as Lender it is sole discretion may determine. In
calculating interest and applying payments as set forth above; (a) interest
shall be calculated and collected through the date a payment is actually applied
by Lender under the terms of this Agreement; (b) interest on the outstanding
balance shall be charged during any grace period permitted hereunder; (c) at the
end of each month, all accrued and unpaid interest and other charges provided
for hereunder shall be added to the principal balance of the Loan; and (d) to
the extent that Borrower makes a payment or Lender receives any payment or
proceeds of the Collateral for Borrower's benefit that is subsequently
invalidated, set aside or required to be repaid to any other person or entity,
then, to such extent, the obligations intended to be satisfied shall be revived
and continue as if such payment or proceeds had not been received by Lender and
Lender may adjust the outstanding balance of the Indebtedness as Lender, in its
sole discretion, deems appropriate under the circumstances.
2.11. ALLOCATION 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 the Eligible Receivables of each Borrower bears 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.
2.12. 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 2.13, 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
2.13 or otherwise, such disproportionalities shall be deemed to have occurred by
virtue of loans made between and among Borrowers.
2.13. 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 Borrower 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
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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 Borrower shall be considered and
treated as an Advance to the Borrowers and each Borrower shall be jointly and
severally liable therefor.
2.14. TERMINATION FEE. Borrower agrees to pay Lender a Termination Fee
(SCHEDULE 2.14) upon the termination of the credit facility evidenced by the
Loan Documents. This Termination Fee shall be due and payable together with the
payment in full of the outstanding balance of the Indebtedness, whether by a
voluntary prepayment in full by Borrower together with a request for Lender to
terminate Lender's security interest in the Collateral, the acceleration of the
outstanding balance of the Indebtedness upon an Event of Default or upon the
expiration of the term hereof, as such term may be extended from time to time.
This Termination Fee shall be included as an Additional Sum as defined in
Section 2.7 of the Agreement.
2.15. INVENTORY CREDIT LINE. The Inventory Credit Line shall be that
portion of the Amount of the Revolving Credit Line, that shall not exceed the
Availability on Eligible Inventory. Advances pursuant to the Inventory Credit
Line shall only be made directly to First Choice, based upon the Eligible
Inventory of First Choice.
The Stated Interest Rate applicable to the that portion of the outstanding
balance of the Indebtedness applicable to the Inventory Credit Line shall be at
the Inventory Stated Interest Rate (SCHEDULE SECTION 2.2.). The Receivables
owned or held by First Choice shall not be eligible Receivables hereunder and
the Inventory owned or held by the Receivables Borrowers shall not be eligible
Inventory hereunder.
Inventory Borrower shall provide Lender such reporting and information as
requested by Lender with respect to all Inventory, including but not limited to
the reports and information set forth in Section 6.4.A. Notwithstanding any
provision contained in the Loan Documents to the contrary, in addition to all
other audit costs and expenses due and payable hereunder, Inventory Borrower
shall reimburse Lender for all of Lender's expenses with respect to the audit or
checks with respect to Inventory, as required by Lender.
2.16. RECEIVABLES CREDIT FACILITY. The Receivables Credit Facility shall be
that portion of the Amount of the Revolving Credit Line, that shall not exceed
the Availability on Eligible Receivables. Advances pursuant to the Receivables
Credit Facility shall only be made directly to the Lead Lender or any of the
Receivable Borrowers, pursuant to the terms of the Loan Documents, based upon
the Eligible Receivables of the Receivable Borrowers.
The Stated Interest Rate applicable to the that portion of the outstanding
balance of the Indebtedness applicable to the Receivables Credit Facility shall
be at the Receivables Stated Interest Rate (SCHEDULE SECTION 2.2.).
3. SECURITY
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, 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 Inventory, new or used, including, but not limited to parts and
accessories;
C. All bank accounts of Borrower;
D. 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;
E. All accessions to, substitutions for and all replacements, products and
proceeds of the foregoing, including, without limitation, proceeds of insurance
policies referenced in Section 3.1.A above (including but not limited to claims
paid and premium refunds); and
F. All books and records (including, without limitation, customer lists,
credit files, tapes, ledger cards, computer
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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 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 and
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. 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.
3.4. 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.
3.5. NOTICE OF COLLATERAL ASSIGNMENT. All contracts, documents or
instruments representing or evidencing a Receivable shall contain (by way of
stamp or other method reasonably satisfactory to Lender) the following language:
"PLEDGED TO FINOVA CAPITAL CORPORATION AS COLLATERAL".
3.6. 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 dominion and control (with files so
labeled) and deemed to be in Lender's possession.
3.7. 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, upon reasonable prior notice,
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.
3.8. 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 covering any Collateral, proceeds
thereof or other matters subject to the security interest granted to Lender.
3.9. 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. During the
continuance of any Event of Default, Lender expressly retains the unqualified
right at any time it so elects to take over the collection of the Receivables.
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3.10. BLOCKED ACCOUNTS. 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 2.9 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 2.9 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.
3.11. 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 request of
Lender, provide Lender with a tape or diskette copy of such "back-up"
information.
3.12. 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); and unless an Event of Default is continuing, Borrower may
collect or compromise accounts or obligations and accept returned goods or make
repossessions, as Borrower shall determine based upon its reasonable discretion.
3.13. USE OF PROCEEDS. Borrower shall use the proceeds of the Loan as a
distribution to Borrower's shareholder, provided such distribution does not
create a Default hereunder, for such shareholder to effect the acquisitions
contemplated to occur on or about the date of this Agreement (as previously
disclosed to Lender), in the ordinary course of business, in its operations for
costs incurred in the creation or purchasing of Receivables, or for payments to
Lender hereunder.
3.14. RETURN OF COLLATERAL. Upon the payment in full 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".
3.15. 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.
3.16 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 Collateralization
of their Collateral is in consideration of Lender's extending the credit
hereunder and mutually beneficial to each Borrower.
4. CONDITIONS OF CLOSING; SUBSEQUENT ADVANCES
4.1. INITIAL ADVANCE. The obligation of Lender to make the initial advance
hereunder is subject to the fulfillment, to the satisfaction of Lender and its
counsel, of
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each of the following conditions prior to the initial advance hereunder:
A. Loan Documents. Lender shall have received each of the following Loan
Documents: (i) this Loan and Security Agreement executed by the respective
parties; (ii) Schedule to Loan and Security Agreement executed by the respective
parties; (iii) the Note executed by Borrower; (iv) Guaranty Agreement executed
by the respective Guarantors; (v) such Blocked Account or Dominion Account
agreements as it shall determine; and (vi) such other documents, instruments and
agreements in connection herewith as Lender shall reasonably require, executed,
certified and/or acknowledged by such parties as Lender shall designate;
B. Terminations by Existing Lender. Borrower's existing lender(s) shall
have executed and delivered UCC termination statements and other documentation
evidencing the termination of its liens and security interests in the Collateral
in form and substance satisfactory to Lender in its sole discretion;
C. Charter Documents. Lender shall have received copies of Borrower's
By-laws and Articles or Certificate of Incorporation, as amended, modified, or
supplemented to the Closing Date, certified by the Secretary or Assistant
Secretary of Borrower;
D. Good Standing. Lender shall have received a certificate of corporate
status with respect to Borrower and each corporate Guarantor, dated within ten
(10) days of the Closing Date, by the Secretary of State of the state of
incorporation of Borrower and such Guarantor, which certificate shall indicate
that Borrower and such Guarantor are in good standing in such state;
E. Foreign Qualification. Lender shall have received certificates of
corporate status with respect to Borrower and each corporate Guarantor, each
dated within ten (10) days of the Closing Date, issued by the Secretary of State
of each state in which such party's failure to be duly qualified or licensed
would have a material adverse effect on its financial condition or assets,
indicating that such party is in good standing;
F. Authorizing Resolutions and Incumbency. Lender shall have received a
certificate from the Secretary or Assistant Secretary of Borrower and each
corporate Guarantor attesting to (i) the adoption of resolutions of each
respective Board of Directors authorizing the borrowing of money from Lender or
the guaranty of the Indebtedness, as the case may be, and execution and delivery
of this Agreement and the other Loan Documents to which Borrower and Guarantor
are a party, and authorizing specific officers of Borrower and Guarantor to
execute same, and (ii) the authenticity of original specimen signatures of such
officers;
G. Initial Availability Report. Lender shall have received an Availability
Report from Borrower executed by an authorized corporate officer of Borrower;
H. Property Insurance. If applicable, Lender shall have received the
insurance certificates and certified copies of policies required herein, along
with a Lender's Loss Payable Endorsement naming Lender as sole loss payee, all
in form and substance satisfactory to Lender and its counsel;
I. Searches; Certificates of Title. Lender shall have received searches
reflecting the filing of its financing statements and other filings in such
jurisdictions as it shall determine, and shall have received certificates of
title with respect to the Collateral which shall have been duly executed in a
manner sufficient to perfect all of the security interests granted to Lender;
J. Fees. Borrower shall have paid all fees payable by it on the Closing
Date pursuant to this Agreement;
K. Opinion of Counsel. Lender shall have received an opinion of Borrower's
counsel covering such matters as Lender shall determine in its sole discretion;
L. Solvency Certificate. If requested by Lender, a signed certificate of
the Borrower's duly elected Chief Financial Officer concerning the solvency and
financial condition of Borrower, on Lender's standard form;
M. Blocked and Pledged Accounts. If applicable, the Blocked Account and/or
Pledged Account referred to in Section 3.10 hereof shall have been established
to the satisfaction of Lender in its sole discretion; and
N. Warrants Agreement. A signed warrants agreement executed by Xxxxxx
Industries, Inc.
O. Voting Agreement. All of the voting rights with respect to the stock in
Xxxxxx Industries, Inc. owned or held by Xxxxxx X. Xxxxxx and Xxxxxx Xxxxxx,
directly or indirectly, shall be held by Xxxx Xxxxx pursuant to a certain Voting
Agreement, in a form and substance acceptable to Lender.
P. Stock Exchange Agreement. Borrowers' shareholders have completed and
closed all matters with respect to a stock exchange agreement with Smart Choice
Automotive Holdings, Inc. ("Holdings"), wherein all of the ownership of Borrower
is held by Holdings, in a form and substance satisfactory to Lender.
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Q. Other Matters. All other documents and legal matters in connection with
the transactions contemplated by this Agreement shall have been delivered,
executed and recorded and shall be in form and substance satisfactory to Lender
and its counsel.
4.2. SUBSEQUENT ADVANCES. The obligation of Lender to make any advance
hereunder (including the initial advance) shall be subject to the further
conditions precedent that, on and as of the date of such advance: (a) the
representations and warranties of Borrower set forth in this Agreement shall be
accurate, before and after giving effect to such advance or issuance and to the
application of any proceeds thereof; (b) no Default or Event of Default has
occurred and is continuing, or would result from such advance or issuance or
from the application of any proceeds thereof; (c) no material adverse change has
occurred in the Borrower's business subsequent to the immediately preceding
advance hereunder, operations, financial condition, or assets or in the prospect
of repayment of the Indebtedness; (d) Lender shall have received such other
approvals, opinions or documents as Lender shall reasonably request; and (e)
Borrower shall 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 4.3 hereof.
4.3. 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 presumed 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.
4.4. 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.
4.5. 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 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.
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 the failure to be so qualified would have a material adverse effect
on Borrower or its assets or business, 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.
Simultaneously, with the execution of this Agreement, all of the
outstanding stock of Borrower shall be owned by Smart Choice Holdings, Inc.
All of the outstanding stock of Borrower's sole shareholder, Smart Choice
Holdings, Inc. is owned by Xxxxxx Industries, Inc.;
B. Borrower operates its business only under the assumed names (SCHEDULE
SECTION 5.1.) and has not
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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, except as may be limited by bankruptcy, insolvency
and other such laws affecting creditors' rights generally, and by general
equitable principles.
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 pending or, to Borrower's knowledge, 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
effect on 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 in all material
respects; 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; 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.
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
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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 Twenty Five Thousand
Dollars ($25,000.00);
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 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(subject to physical
possession of instruments, if any, and endorsements of title respecting titled
Collateral, if such endorsements of title are necessary for perfection of such
security interest), 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, to
Borrower's knowledge, 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. The 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
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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 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 person
or entity, other than Lender;
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
1.14.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 accordance with Section 3.11 hereof.
C. Furnish to Lender written notice as to the occurrence of 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 effect on such business, financial condition,
properties or assets, or 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 the failure to be so qualified would have a material
adverse effect on Borrower or its assets or business, 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.
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This insurance shall reflect Lender as a 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. Borrower shall maintain insurance, with respect to all Inventory, in
an amount equal to or greater than the cost of such Inventory.
6.2. NEGATIVE COVENANTS. During the term of this Agreement and until the
Indebtedness 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 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. Notwithstanding the foregoing to the contrary, the negative
covenants set forth in sections (i), (ii) and (iii) in this Section 6.2.C.,
shall not restrict Borrower from participating in the acquisitions or mergers
presented to Lender prior to the date hereof and such do not otherwise cause a
Default hereunder.
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, except in satisfaction of claims for
indemnification against sellers of businesses; 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 effect 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 material 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 managed, directly or indirectly, by any person or
entity other than the senior management that controls the management of Borrower
as of the date hereof, or any replacements thereof reasonably satisfactory to
Lender.
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, at any time that a Default or an Event of Default shall exist,
without waiver in writing by Lender.
M. With respect to First Choice, have cash sales of more than ten percent
(10%) of retail sales per calendar month.
N. With respect to First Choice, request a duplicate certificate of title or
similar document, without the prior written consent of Lender.
6.1. REPORTING REQUIREMENTS AND ACCOUNTING PRACTICES. Borrower shall maintain
(i) a modern 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.
6.2. PLEDGE OF RECEIVABLES. Borrower hereby agrees to pledge all Receivables
and deliver documentation evidencing such Receivables (the original
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contract or agreement that evidences Account Debtor's primary payment obligation
to Borrower ("Payment Agreement") and a certificate of title or application
therefore in the name of Account Debtor, with the Borrower as the only secured
party, of the collateral that secures such payment obligation to Lender
["Certificate of Title"]), no less often than on the twentieth (20th) day of
each calendar month during the term of this Agreement. If such evidence of title
of the collateral securing a pledged Receivable is not delivered to Lender with
the original Receivable documentation, Borrower shall deliver evidence that such
original title has been applied for in the name of the respective Account Debtor
with Borrower as the only secured party ("White Slip"), in a form and substance
satisfactory to Lender, and such evidence of title shall be delivered to Lender
not later than fifteen (15) days after such evidence of title is received by
Borrower. Any Receivable for which Borrower has not delivered the original
Payment Obligation and the Certificate of Title or White Slip, such Receivables
shall not be an Eligible Receivable hereunder, until such delivery is made.
Borrower will deliver monthly, with the delivery of the documentation evidencing
the Receivables above, a "Vehicle Title Exception Report" listing all
Certificates of Titles which have not been received by Lender or are due from
the appropriate state motor vehicle department.
6.3. 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 relating to the Receivables by means of
mail, telephone or otherwise, in the name of Borrower and during the continuance
of an Event of Default in the name of Lender or such other name as Lender may
choose.
6.4. 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 1.14.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; (iv) Schedule of Receivables and Assignment in
the form and substance of Exhibit "E" attached hereto; and (v) with respect to
First Choice's inventory, weekly availability reports (reflecting additions and
deletions), with the original title (open status), the purchase invoice and
applicable Black Book valuation of each vehicle, and monthly availability report
(as a summary of the weekly reports) with a detailed aging of all inventory by
location.
B. Within one hundred twenty (120) 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 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 6.6.).
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 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.
6.5. FINANCIAL STATEMENTS OF GUARANTORS. Each of the Guarantors (SCHEDULE
SECTION 1.17.) shall furnish to Lender annual financial statements in form
reasonably satisfactory to Lender and certified by such Guarantor and a copy of
each Guarantor's 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.
6.6. 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 Borrower or a
Guarantor is a party; and any other material change in the business or financial
affairs of Borrower.
7. EVENTS OF DEFAULT AND REMEDIES
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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.
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, provided that if such Default can be reasonably cured within thirty
(30) days after Lender has given written notice to Borrower identifying such
Default, Borrower shall have thirty (30) days after Lender has given written
notice to Borrower identifying such Default, provided Borrower is continuously
and diligently pursuing such cure during such thirty (30) days.
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, in the aggregate outstanding balance in excess of One
Hundred Thousand Dollars ($100,000.00), 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
operations or financial condition of the Borrower or Guarantor.
H. 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 its liability
pursuant to the Guaranty Agreement executed in conjunction with this Agreement.
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7.2. ACCELERATION OF THE INDEBTEDNESS. During the continuance of 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 hereunder 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 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. During the continuance of 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, 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
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advertising matter, or any property of a similar nature as it pertains to
advertising for sale, marshaling 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 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. APPLICATION OF PROCEEDS. If 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.
7.7. 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. During the continuance 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 7.7.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 during the continuance 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 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
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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 (ix) 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, until this Agreement is terminated, the
Indebtedness has been paid in full and Lender's security interest in the
Collateral has been terminated.
8. EXPENSES AND INDEMNITIES
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 3.10,
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. 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.
8.3. 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 wilful misconduct.
9. MISCELLANEOUS
9.1. 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 9.1,
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, but subject to Borrower's reasonable approval as to the
form, content and recipients thereof, 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.
9.2. 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.
9.3. 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.
9.4. 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.
9.5. 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.
9.6. 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.
9.7. 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.
9.8. 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.
9.9. 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.
9.10. 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.
9.11. HEADINGS. The Article and Section headings used in this Agreement are
for convenience only and shall not affect the construction of this Agreement.
9.12. 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 1 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 1 or the Schedule shall mean and refer to the
information or definitions as set forth in Article 1 and the Schedule unless the
context specifically requires otherwise. Any terms used in Article 1 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.
9.13. 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
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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.
9.14. 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.
9.15. 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.
9.16. 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 9.16 AND
SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON ACTUAL RECEIPT THEREOF.
9.17. 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.
9.18. 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 8.3, 9.15, 9.16, 9.17, 9.18, 9.19 and 9.20 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 THIS AGREEMENT, AND THAT
THEY HAVE FREELY AND VOLUNTARILY ENTERED INTO THIS AGREEMENT AS THE PRODUCT OF
ARMS' LENGTH NEGOTIATIONS.
9.19. 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;
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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.
9.20. TIME OF ESSENCE Subject to any grace periods, cure periods or other
such provisions herein, time is of the essence for the performance the
obligations set forth in this Agreement and the Loan Documents.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year first set forth above.
BORROWER:
FLORIDA FINANCE GROUP INC.
By:
----------------------------------------------------
Xxxxxxx X. Xxxxxxx, Executive Vice President (Date)
LIBERTY FINANCE COMPANY.
By:
----------------------------------------------------
Xxxxxxx X. Xxxxxxx, Executive Vice President (Date)
SMART CHOICE RECEIVABLES HOLDING COMPANY
By:
----------------------------------------------------
Xxxxxxx X. Xxxxxxx, Assistant Vice President (Date)
FIRST CHOICE AUTO FINANCE, INC.
By:
----------------------------------------------------
Xxxxxxx X. Xxxxxxx, Assistant Vice President (Date)
GUARANTORS:
SC HOLDINGS, INC.
By:
----------------------------------------------------
Xxxxxxx X. Xxxxxxx, Assistant Vice President (Date)
Smart Choice Automotive Group, Inc.
By:
----------------------------------------------------
Xxxxxxx X. Xxxxxxx, Assistant Vice President (Date)
LENDER:
FINOVA CAPITAL CORPORATION,
a Delaware corporation
By:
----------------------------------------------------
Xxxxxxx X. Xxxxxx, Vice President (Date)
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