AMENDED AND RESTATED MOTOR VEHICLE INSTALLMENT
CONTRACT LOAN AND SECURITY AGREEMENT
This Amended and Restated Motor Vehicle Installment Contract Loan
and Security Agreement ("Agreement") is entered into by and between THE FINANCE
COMPANY (hereinafter referred to as "Borrower"), a Virginia corporation, and
General Electric Capital Corporation, a New York corporation (hereinafter
referred to as "Lender"). In consideration of the mutual covenants and
agreements contained herein, Borrower and Lender agree as follows:
RECITALS
A. Borrower and Lender are parties to that certain Loan and Security Agreement
dated as of September 24, 1992 as amended (the "Original Agreement") pursuant to
which Lender made certain loans to Borrower which loans were secured by, among
other things, Borrower's motor vehicle installment contracts;
B. Borrower and Lender have agreed to enter into this Agreement in order to (i)
amend and restate the Original Agreement in its entirety; (ii) incorporate such
terms of the Forbearance Agreement executed between Borrower and Lender dated
March 21, 1996 as the parties agree should be contained in this Agreement; (iii)
add The Insurance Agency, Inc. ("TIA") and First Community Finance, Inc. ("FCF")
as additional Guarantors to this Agreement, and (iv) document such other changes
in the lending relationship between the parties as have occurred since the
Original Agreement.
C. It is the intent of Borrower and Lender that the execution and delivery of
this amendment and restatement of the Original Agreement shall not effectuate a
novation of the indebtedness outstanding under the Original Agreement, but
rather as it pertains to the indebtedness outstanding under the Original
Agreement, shall constitute a substitution of certain of the terms governing the
payment and performance of such indebtedness.
ARTICLE I. DEFINITIONS.
Section 1.0 DEFINITIONS. Capitalized terms used in this Agreement
shall have the meanings given to such terms in Section 16 of this Agreement.
When such defined terms are used in this Agreement in the plural, the terms
shall have the plural of such meanings. All other terms contained in this
Agreement shall, unless the context indicates otherwise, have the meanings
provided for by the UCC to the extent the same are defined therein.
ARTICLE II. LOAN: GENERAL TERMS
Section 2.0. REVOLVING CREDIT; LOAN AMOUNT. Subject to all of the
terms and conditions of this Agreement, Lender agrees to loan funds to Borrower
against Eligible Contracts from time to time in a series of Advances during the
term of this Agreement. Funds may be borrowed, repaid and re-borrowed on a
revolving basis subject to the terms and conditions set forth in this Agreement,
provided that the Loan shall not at any time exceed the Borrowing Base.
Borrower's obligation to pay the Loan is evidenced by this Agreement. Borrower
shall pay Lender when due all Obligations in accordance with the terms of this
Agreement whether or not Borrower has executed a promissory note. The actual
amount Borrower is obligated to pay Lender hereunder shall be determined by this
Agreement and the records of Lender, regardless of the terms of any promissory
note. Any promissory note executed in connection with the Indebtedness need not
be amended to reflect changes made to this Agreement.
Section 2.1. SINGLE LOAN. All Advances by Lender to Borrower shall
constitute one loan and all indebtedness and obligations of Borrower to Lender
under the Loan Documents shall constitute an obligation secured by Lender's
security interest in all of the Collateral.
Section 2.2. GENERAL INTEREST RATE. (A) Except as modified by
Sections 2.4 and 15.1, the Loan shall bear interest, calculated daily on the
basis of a 365-day year, at a per annum rate equal to 400 basis points (4.00%)
plus the LIBOR Rate as it may change upon the first day of each calendar month.
The interest rate will adjust for the succeeding fiscal quarter
based on the level of Interest Coverage achieved in the preceding fiscal
quarter, provided that the utilization level is at least fifty million dollars
($50,000,000.00) average daily balance for each quarter. If Borrower achieves an
Interest Coverage of 1.4:1 as of the end of a fiscal quarter, then provided that
Borrower is in compliance with all terms of this Agreement and maintains an
Interest Coverage of at least 1.4:1, then the interest rate for the succeeding
fiscal quarter shall be three hundred and seventy-five basis points (3.75%) plus
the LIBOR Rate. If Borrower achieves an Interest Coverage of 1.7:1, as of the
end of a fiscal quarter, then provided that Borrower is in compliance with all
terms of this Agreement and maintains an Interest Coverage of at least 1.7:1
then the interest rate for the succeeding fiscal quarter shall be three hundred
and fifty basis points (3.50%) plus the LIBOR Rate.
(B) Borrower shall pay to Lender the Line Fee on execution of this
Agreement for the period from the execution date through and until December 31,
1997. Borrower shall pay on January 1, 1998 the Line Fee for calendar year 1998.
Section 2.3. LOAN TERM; RIGHT TO TERMINATE. Unless sooner terminated
as hereinafter provided, this Agreement shall terminate on December 31, 1998. If
an Event of Default has occurred, and not been cured as provided in Section
15.7, Lender may without prior notice to Borrower, immediately terminate this
Agreement. A prepayment in full of the Loan shall be a termination of this
Agreement. Notwithstanding termination of this Agreement in any manner, the
Indebtedness shall be payable in accordance with this Agreement, and all rights
and remedies granted to Lender hereunder or pursuant to applicable law shall
continue until all obligations of Borrower to Lender have been fully paid and
performed.
Section 2.4. MAXIMUM LAWFUL RATE. (A) INTEREST RATE. Notwithstanding
any provision in this Agreement, or in any other document, if at any time before
the payment in full of the Indebtedness, any of the rates of interest specified
in this Agreement (the "Stated Rates") exceeds the highest rate of interest
permissible under any law which a court of competent jurisdiction shall, in a
final determination, deem applicable hereto (the "Maximum Lawful Rate"), then in
such event and so long as the Maximum Lawful Rate would be so exceeded, the rate
of interest payable shall be equal to the Maximum Lawful Rate; provided,
however, that if at any time thereafter the Stated Rates shall be less than the
Maximum Lawful Rate, then, subject to (B) below, Borrower shall continue to pay
interest at the Maximum Lawful Rate until such time as the total interest
received by Lender is equal to the total interest which Lender would have
received had the Stated Rates been (but for the operation of this Section
2.4(A)) the interest rates payable; thereafter, the interest rates payable shall
be the Stated Rates unless and until any of the Stated Rates shall again exceed
the Maximum Lawful Rate, in which event this Section 2.4(A) shall again apply.
In the event interest payable hereunder is calculated at the Maximum Lawful
Rate, such interest shall be calculated at a daily rate equal to the Maximum
Lawful Rate divided by the number of days in the year in which such calculation
is made.
(B) AMOUNT OF INTEREST. In no event shall the total
interest contracted for, charged, received or owed pursuant to the terms of this
Agreement exceed the amount which Lender may lawfully receive. In the event that
a court of competent jurisdiction, notwithstanding the provisions of this
Section 2.4, shall make a final determination that Lender has received, charged,
collected, or contracted for interest hereunder in excess of the amount which
Lender could lawfully have, Lender shall, to the extent permitted by law,
promptly apply such excess first to any interest due (calculated at the Maximum
Lawful Rate if applicable) and not yet paid, then to the prepayment of
principal, and any excess remaining thereafter and after application to any
other amounts Borrower owes Lender shall be refunded to Borrower. In determining
whether the interest exceeds the Maximum Lawful Rate or the maximum amount which
Lender could lawfully have received, the total amount of interest shall, to the
extent allowed by law, be spread over the term of the Loan. Any provisions of
this Agreement regarding the time during which interest accrues on Advances are
only elements of the formula for calculating interest on the total Loan and are
not intended to cause interest to be applied to specific Advances for usury
determination purposes.
Section 2.5. WARRANT TO PURCHASE COMMON STOCK. As additional
consideration for Lender to enter into this Agreement, and as a condition to the
effectiveness hereof, concurrently herewith (a) TFCEI issues to Lender, and
Lender accepts, a certain Warrant to Purchase Common Stock of even date herewith
(the "Warrant"), whereby Lender is granted certain rights to purchase shares of
the common stock TFCEI, and (b) TFCEI and Lender enter into a certain
Registration Rights Agreement of even date herewith (the "Registration Rights
Agreement"), which agreement, among other things, grants certain rights to
Lender for the registration of the shares of common stock of TFCEI purchasable
under the Warrant.
ARTICLE III - LOAN DISBURSEMENTS
Section 3.0. LOAN - BORROWING BASE. Provided that there does not
then exist an Event of Default or a Pre-Default Event and provided that Lender
has not taken over all or some of the administration of the Contracts under
Section 5.1 hereof, Lender shall, upon written request of Borrower and subject
to all of the terms and conditions of this Agreement, make Advances to Borrower
pursuant to Section 3.2.
Section 3.1. ELIGIBLE CONTRACTS. Borrower shall from time to time
deliver to Lender Eligible Contracts which Borrower desires to be included in
the Borrowing Base. Along with the Contracts Borrower shall also deliver a List
of Contracts. An Eligible Contract shall be included in the Borrowing Base only
when and for so long as, in Lender's reasonable determination, each of the
requirements in the definition of Eligible Contracts continues to be satisfied.
If a Contract is determined by Lender to be, or is treated by Lender as, an
Eligible Contract, Lender reserves the right to change its determination or
treatment and to remove the Contract from the Borrowing Base if it later
determines that the Contract is not or was not an Eligible Contract. A
determination by Lender that a Contract is an Eligible Contract is not a waiver
by Lender of, or an admission by Lender of the truth of, any of Borrower's
representations and warranties in this Agreement.
Section 3.2. PROCEDURE FOR BORROWING. (A) The first Advance shall
not exceed the Borrowing Base. Subsequent Advances may be requested on any
Business Day and each subsequent Advance shall not exceed the Loan Availability
determined, either as of the end of the most recent Accounting Period for which
Lender has received the monthly reports required by Section 5.1(C) or as of such
other later date designated by Lender. Lender is not obligated to make an
Advance if the amount available or requested is less than one hundred thousand
dollars ($100,000.00). Lender is not obligated to make an Advance unless
Borrower provides Lender with sufficient information to calculate the Loan
Availability. Lender's use of the information provided by Borrower to determine
the amount available for Advances is not an admission by Lender as to the
accuracy of the information, and Lender reserves the right to verify the
information and re-determine the amount available for Advances.
(B) Lender shall disburse each Advance requested
by Borrower within one (1) Business Day after receipt of Borrower's written
request for the Advance. Lender shall disburse each Advance requested by
Borrower by means of a draft, or, upon the request of and at the expense of
Borrower, Lender shall wire transfer the funds to Borrower.
Section 3.3 MAXIMUM ADVANCES FOR THIRD PARTY CONTRACTS. At no time
shall the aggregate Borrower's Net Investment of all Eligible Contracts serviced
by Third Party Servicers exceed ten million dollars ($10,000,000), without prior
written Lender approval. All Third Party Servicers shall enter into a Third
Party Servicing Agreement in substantially the form as that attached in Exhibit
11.
ARTICLE IV - LOANS: PAYMENTS
Section 4.0. PAYMENTS BY BORROWER. (A) All payments by Borrower to
Lender shall be deposited in the Depository Account or shall be sent to such
other location of which Lender has notified Borrower.
(B) Upon the effective date of termination of
this Agreement, Borrower shall pay to Lender the entire Indebtedness. If there
is an Event of Default, which has not been Cured as provided in Section 15.7,
Borrower shall pay the entire Indebtedness on demand if the Indebtedness is
accelerated pursuant to Section 15.2.
(C) Interest shall accrue on the Loan daily and
be paid from the Remittances as provided in Section 4.2. If at the end of an
Accounting Period there is more than one Business Day of accrued unpaid
interest, Borrower shall pay the more-than- one-day accrued interest to Lender
within five (5) calendar days after the end of the Accounting Period. Accrued
interest shall not be added to the Loan balance and bear interest, unless the
interest is past due and paid with an Advance requested by Borrower and approved
by Lender; provided that, such an approval by Lender shall not constitute a
waiver of the Event of Default consisting of the failure to pay the interest
except to the extent provided in Section 17.9.
(D) Whenever Lender shall notify Borrower, with
a Statement of Borrowing Base or otherwise, that the Loan exceeds the Borrowing
Base, Borrower shall within one (1) Business Day after receipt of such notice,
either pay down the Loan by the amount of such excess, or, if Lender consents,
deliver additional Eligible Contracts to Lender which are sufficient to increase
the Borrowing Base above the Loan.
(E) The payment of all elements of the
Indebtedness not covered above shall be payable by Borrower to Lender as and
when provided in the Loan Documents, and, if not specified, then on demand.
(F) Borrower has the right to prepay the Loan in
full or in part at any time without penalty.
Section 4.1. CONTRACT PAYMENTS. Borrower shall direct all Contract
Debtors other than those administered by Third Party Servicers for Pledged
Contracts, and all other Persons (including Contract Rights Payors) who make
payments to Borrower relating to Pledged Contracts, to make, when paying by
mail, all payments directly to the Post Office Box or Third Party Servicers. In
the event Borrower receives any Remittances, Borrower shall, as soon as possible
but no later than the third (3rd) Business Day following receipt, deposit the
Remittances in kind in the Depository Account. Borrower shall hold Remittances
in trust for Lender until delivery to Lender or deposit in the Depository
Account. Borrower shall pay all expenses associated with the Post Office Box.
Section 4.2. APPLICATION OF PAYMENTS. All Remittances, received by
Lender or the Depository Account shall be applied by Lender to the Indebtedness
within one (1) Business Day after the Remittance has been credited to the
Depository Account; provided, however, that no Remittance received by the
Depository Account other than cash shall constitute payment to Lender unless and
until such item has actually been collected by the Depository Account bank and
such collection has been finally credited to Lender's account for the Depository
Account; provided, further, that if a Remittance applied to the Indebtedness is
charged back to the Depository Account, Lender can retroactively remove the
application of the Remittance to the Indebtedness and accrue any interest not
accrued because of the application of the Remittance to the Indebtedness. Each
Remittance applied by Lender to the Indebtedness shall be applied by Lender
first to accrued interest and, if sufficient to pay accrued interest, any excess
shall be applied then to the Loan, and, if sufficient to pay the accrued
interest and the Loan, any excess shall then be applied to the remaining
elements of the Indebtedness, if any, or, if not, Lender shall remit the same to
Borrower or its designee within one Business Day; provided that, Lender reserves
the right to use a different order of application if there is an Event of
Default or Lender has given prior written notice to Borrower of a different
order. All Remittances received by the Depository Account or Lender shall be
applied to the Indebtedness even though no portion of the Indebtedness is
otherwise then due and even though Lender has not sent Borrower a demand, notice
or request for payment of the Indebtedness. Payments shall be deemed to be due
by Borrower when received by Lender unless they are due sooner by the terms of
the Loan Documents.
ARTICLE V - CONTRACT ADMINISTRATION
Section 5.0. LENDER ADMINISTRATION. Lender shall have no liability
to Borrower with respect to Remittances received by Lender, the Post Office Box,
or the Depository Account, other than to: (i) apply the Remittances pursuant to
Section 4.2 of this Agreement, (ii) in the event Remittances are directly
received by Lender, Lender shall provide or cause to be provided to Borrower, a
report of Remittances received by the Post Office Box, and (iii) upon
termination of this Agreement and Borrower's satisfaction of all of its
obligations under this Agreement, to assign the Post Office Box and its contents
to Borrower. Lender shall have no liability to Borrower with respect to any
interest or other earnings which are earned, or could have been earned, on the
Remittances while they are in the Post Office Box, the Depository Account, or
otherwise.
Section 5.1. BORROWER ADMINISTRATION. (A) Borrower or Third Party
Servicer as referenced in Section 3.3, shall perform all aspects of servicing,
administering, collecting, liquidating, accounting for and managing
(collectively, "administering", "administer", or "administration") the Pledged
Contracts it customarily performs in accordance with Borrower's current
practices for contract administration, which practices are in accordance with
applicable law and have been disclosed to Lender prior to the date hereof.
Borrower shall provide such administration in a reasonable and prudent way that
does not, in Lender's reasonable determination, adversely affect the value of
the Collateral to Lender. If in Lender's reasonable opinion, Borrower fails to
administer the Pledged Contracts in accordance with Borrower's practices
disclosed to Lender prior to the date hereof, Lender shall notify Borrower of
the deficiencies in Borrower's administration and Borrower shall have ten (10)
Business Days to cure any such deficiencies. If Borrower fails to cure such
deficiency within such ten (10) Business Day period, Lender may thereafter, in
its sole discretion, take over all or part of the administration of the Pledged
Contracts. The administration provided by Borrower shall include but not be
limited to all servicing currently provided by Borrower, and Financed Vehicle
titling and lien perfection, customer service, insurance claim tracking and
collection, insurance maintenance, Contract enforcement, Contract billing,
payment processing, portfolio and Contract accounting, portfolio management,
delinquency collection, repossession, foreclosure, resale, and maintaining
current Contract Debtor and Financed Vehicle location information (name, address
and phone number) as set forth in Exhibit 5.1(A). Borrower shall maintain
current, accurate, and complete records of activity and comments regarding
collection, insurance, payments, and other material events. The records
regarding collection history, payments, Contract accounting, customer service
notes, Contract Debtor names and addresses and Outstanding Principal Balance
shall be computerized. Borrower shall require Contract Debtors to maintain
Required Contract Debtor Insurance. Borrower shall administer and otherwise deal
with the Contracts in compliance with all applicable laws. Borrower shall
conduct foreclosure sales in a commercially reasonable manner and take the steps
necessary to preserve the deficiency liability of the Contract Debtors.
(B) Borrower shall administer the Pledged
Contracts at its existing service centers in Norfolk, Virginia, and
Jacksonville, Florida, as set forth more fully in Exhibit 5.1(B) or at such
other locations of which Borrower provides prior notice to Lender and Lender
approves for Contract administration, which approval shall not be unreasonably
withheld.
(C) Borrower shall furnish to Lender such
reports in such form that Lender reasonably determines are necessary for it to
track and monitor the Pledged Contracts, Remittances, Financed Vehicles, and
insurance. Such reports shall be in a format and on a medium readable by
Lender's computer software, or such other format or medium acceptable to Lender.
The reports shall include but not be limited to those reports set forth on
Exhibit 5. 1(C) attached hereto and made a part hereof, and shall be delivered
to Lender in accordance with such Exhibit.
(D) Notwithstanding anything herein to the
contrary, (i) Borrower shall remain liable under all Contracts, and any other
contracts and agreements with Contract Rights Payors or otherwise included in or
related to the Collateral, to the extent set forth therein to perform all of its
duties and obligations thereunder to the same extent as if this Agreement had
not been executed, and (ii) the exercise by Lender of any rights under any of
the Loan Documents shall not release Borrower from any of its duties or
obligations under the Contracts, or the other contracts and agreements, and
(iii) Lender shall not have any obligation or liability under the Contracts, or
the other contracts and agreements, nor shall Lender be obligated to perform any
of the obligations or duties of Borrower thereunder or to take any action to
collect or enforce any rights thereunder.
(E) Borrower shall administer the Contracts at
its own expense. In the event that Borrower fails to administer the Contracts in
accordance with Section 5.1(A) or there is an Event of Default, Lender may in
Lender's or Borrower's name take over all or part of the Contract administration
Borrower is required by this Agreement to perform. If Lender takes over all or
part of such administration, Borrower shall pay to Lender on demand all
reasonable out-of-pocket costs incurred by Lender in the performance of
Borrower's administration obligations, and Borrower shall pay Lender for the
administration performed by Lender a reasonable administration fee (exclusive of
documented out-of-pocket costs) established by Lender, and until so paid such
costs and fee shall be part of the Loan.
ARTICLE VI - COLLATERAL: GENERAL TERMS
Section 6.0. SECURITY INTEREST. To secure the performance and
payment of the Indebtedness and all of Borrowers existing and future obligations
to Lender whether arising under or related to this Agreement or otherwise,
Borrower hereby grants to Lender a continuing security interest in and to all of
the following property of Borrower, whether now owned or existing or hereafter
arising or acquired and regardless of where located:
Contracts; Contract Debtor Documents; Contract Rights; payments from
Contract Debtor bank accounts; chattel paper; leases; installment sale
contracts; installment loan contracts; payments from chattel paper obligors;
security deposits; Motor Vehicles (including but not limited to cars and
trucks); certificates of title; contract purchase discounts; accounts; general
intangibles; security interests; collateral securing chattel paper; dealer
agreements; dealer reserves and rate participation (to the extent that Borrower
has an assignable interest therein); rights of Borrower related to chattel
paper, installment contracts, motor vehicles, and collateral securing chattel
paper; documents; instruments; deposit accounts; electronic funds transfers;
equipment; inventory; parts and accessories for motor vehicles; payments from
account debtor bank accounts; reserve accounts; insurance policies, and benefits
and rights under insurance policies, which Borrower is solely or jointly the
owner of, insured under, the lienholder or loss payee under, or the beneficiary
of; and all payments and property of any kind, now or at any time or times
hereafter, in the possession or under the control of Lender, or a bailee of
Lender;
accessions to, substitutions for and all replacements, products and
proceeds of, any of the foregoing property; and
books and records (including, without limitation, financial
statements, accounting records, customer lists, credit files, computer programs,
electronic data, print-outs and other computer materials and records) of
Borrower pertaining to any of the foregoing property.
Section 6.1. DISCLOSURE OF SECURITY INTEREST. Borrower shall make
appropriate entries upon its financial statements and its books and records
disclosing Lender's security interest in the Collateral. Borrower shall stamp
all original, duplicates and reproductions of Pledged Contracts with an
assignment to Lender.
Section 6.2. ADDITIONAL ACTS. Borrower shall perform all other acts
reasonably requested by Lender for the purpose of perfecting, protecting,
maintaining and enforcing Lender's security interest in the Collateral and the
priority of such security interest. Borrower agrees that a carbon, photographic,
photostatic, or other reproduction of this Agreement or of a financing statement
is sufficient as a financing statement. Borrower, upon request of Lender, shall
either pay or reimburse Lender for all costs, filing fees, and taxes associated
with the perfection of Lender's security interest.
Section 6.3. INSPECTION AND ACCESS. Lender and its agents shall have
the right, at any time, to (i) during Borrower's usual business hours, inspect
the Collateral and the premises upon which any of the Collateral is located;
(ii) during Borrower's usual business hours, inspect, audit and make copies or
extracts from any of Borrower's records, computer systems, files, and books of
account; (iii) during Borrower's usual business hours, monitor Borrower's
performance of its obligations with respect to this Agreement; and (iv) verify,
in Lender's name or in the name of Borrower, the validity, amount, quality,
quantity, value and condition of, or any other matter relating to, the
Collateral including but not limited to verifying Contract information with
Contract Debtors. Borrower shall, upon Lender's request from time to time,
instruct its vendors, banking and other financial institutions and its
accountants to make available to Lender and discuss with Lender such information
and records as Lender may request. Borrower authorizes Lender, without request,
to provide to a credit reporting agency information about the Indebtedness,
Collateral and Borrower's performance of this Agreement. If Borrower maintains
or stores any data with respect to Collateral on a computer data system,
Borrower shall upon request of Lender provide Lender with (a) on-line access to
such computer data system or (b) deliver to Lender duplicate copies of the
requested data in machine readable form acceptable to Lender along with a
printout or other hard copy of such data. Borrower shall, on request of Lender,
provide to Lender (at the location designated by Lender) the Contract Debtor
Documents.
Section 6.4. RIGHT TO NOTIFY AND ENDORSE. Borrower hereby
irrevocably authorizes Lender to notify any or all Contract Debtors and Contract
Rights Payors that Lender has a security interest in Contracts, Contract Rights,
and other items of Collateral at any time (i) prior to the occurrence of an
Event of Default, in the name of Borrower, and (ii) after the occurrence of an
Event of Default, in Lender's or Borrower's name. Any such notice shall, at
Lender's election, be signed by Borrower and may be sent on Borrower's
stationery.
Section 6.5. LENDER APPOINTED ATTORNEY-IN-FACT. Borrower hereby
irrevocably appoints Lender (and all Persons designated by Lender for that
purpose) as Borrower's true and lawful attorney-in-fact, coupled with an
interest, to act in Borrower's place and in Borrower's or Lender's name (i) to
endorse Borrower's name on any Remittance; (ii) to sign Borrower's name on any
assignment or termination of a security interest in a Financed Vehicle, on any
application for a Certificate of Title for a Financed Vehicle, or on any UCC
financing statement related to the Collateral, and on any other public records
regarding the Collateral; (iii) to send requests for verification to Contract
Debtors and (iv) to execute an assignment to Lender of any Pledged Contract for
which Lender has made an Advance which was delivered to Lender without such
assignment. Borrower ratifies and approves all acts of Lender as Borrower's
attorney-in-fact. Lender shall not, when acting as attorney-in-fact, be liable
for any acts or omissions as or for any error of judgment or mistake of fact or
law, except for actions taken in bad faith or resulting from Lender's gross
negligence or willful misconduct. This power, being coupled with an interest, is
irrevocable until all payment and performance obligations of Borrower to Lender
have been fully satisfied. Borrower shall upon request of Lender execute powers
of attorney to separately evidence the foregoing powers granted to Lender. As
long as an Event of Default has occurred, all costs, fees and expenses
thereafter incurred by Lender, or for which Lender becomes obligated, in
connection with exercising any of the foregoing powers shall be payable to
Lender by Borrower on demand by Lender and until paid shall be part of the Loan.
Section 6.6. CHANGE OF COLLATERAL, LOCATION, OFFICE OR STRUCTURE.
Borrower shall keep the Collateral, other than Collateral delivered to Lender
and Financed Vehicles, at Borrower's address set forth in Section 17.1 or its
service center(s) listed in Exhibit 5.1(B). Borrower shall not change its name,
tradename, principal place of business and chief executive office or the
location of any service center, unless Borrower gives Lender at least sixty (60)
days prior written notice of such change and prior thereto has taken all action
Lender requires to maintain the priority and perfection of its security interest
in, and access to, the Collateral.
Section 6.7. LENDER'S PAYMENT OF CLAIMS ASSERTED AGAINST BORROWER.
Lender may, at any time, in its sole discretion and without obligation to do so
and without waiving or releasing any obligation, liability or duty of Borrower
under the Loan Documents or any Event of Default, pay, acquire or accept an
assignment of any security interest, lien, claim or encumbrance asserted by any
Person against the Collateral; provided that Lender shall first give Borrower
written notice of its intent to do the same, and Borrower does not, within five
(5) days of such notice, pay such claim and/or obtain to Lender's reasonable
satisfaction the release of the security interests, liens, claims or
encumbrances to which such notice relates. All sums paid by Lender in respect
thereof and all costs, fees and expenses, including reasonable attorneys' fees,
court costs, expenses and other charges relating thereto, which are incurred by
Lender on account thereof, shall be payable by Borrower to Lender on demand by
Lender and until paid shall be part of the Loan.
Section 6.8. TERMINATION OF SECURITY INTEREST. Lender's security
interest in the Collateral shall continue until performance and payment in full
of all of Borrower's obligations to Lender in accordance with the terms of
agreements creating such obligations; and if, at any time, all or part of a
payment or transfer made by Borrower or any other Person and applied by Lender
to Borrower's obligations to Lender is rescinded or otherwise must be returned
by Lender for any reason whatsoever (including, without limitation, the
insolvency, bankruptcy or reorganization of Borrower or such other Person), the
security interest granted hereunder or under any other present or future
agreement between Borrower and Lender, and all rights of Lender, shall be
reinstated as to the obligations which were satisfied by the payment or transfer
rescinded or returned, all as though such payment or transfer had not been made,
and Borrower shall take the action requested by Lender to re-perfect all
terminated security interests and to reinstate all satisfied obligations. Lender
shall release its security interest in Contracts which are sold or pledged to
other Persons in accordance with Section 14.8.
Section 6.9. RETURN OF CONTRACT DELIVERY DOCUMENTS. Lender shall
return to Borrower within three (3) Business Days of Borrower's request any
Contract Delivery Document originals for Contracts paid in full. In addition,
provided that there is no Event of Default and the removal of the Contract will
not result in the Loan exceeding the Borrowing Base, Lender shall return
Contract Delivery Document originals for other Contracts requested by Borrower
for the time and to the extent necessary for Borrower to make corrections or to
enforce the Contracts or the obligations of the Contract Rights Payors. Whenever
Borrower is in possession or control of Contract Delivery Documents for
Contracts not paid in full, Borrower shall hold them in trust for Lender.
Section 6.10 LIFE INSURANCE. In addition to the security interest
granted in Section 6.0, Borrower hereby assigns absolutely to Lender Borrower's
right to life insurance benefits in the amount of One Million Dollars
($1,000,000.00) ("Life Insurance") insuring the life of Xxxxxx X. Xxxxx, Xx.
Borrower shall cause all Life Insurance premiums to be timely paid, and shall
take whatever other action is necessary, to keep the Life Insurance in full
force and effect. Upon complete payment of the Indebtedness and termination of
this Agreement, Lender agrees to release its interest in the Life Insurance.
Section 6.11 FIRST COMMUNITY FINANCE RECEIVABLES. Borrower agrees
that FCF shall pledge its interest in consumer loan receivables ("FCF
Collateral") to Lender, as collateral for FCF's Guaranty. Such assignment and
pledge shall be documented as set forth in Exhibit 17. The FCF Collateral will
not be included for purposes of calculating the Borrowing Base. In the event FCF
obtains financing secured by the FCF Collateral, Lender agrees to release its
interest in the FCF Collateral, provided that Lender's advance against Eligible
Contracts is reduced by 3% at the time of Lender's release of the FCF
Collateral. Upon Lender's release of the FCF Collateral, Lender agrees to
eliminate the covenants pertaining to FCF as it relates to Section 13.6 and
Exhibit 13.6 of this Agreement. Upon Lender's release of the FCF Collateral,
Lender agrees to eliminate the covenants pertaining to FCF as it relates to
Section 13.6 and Exhibit 13.6 of this Agreement.
ARTICLE VII - COLLATERAL: CONTRACTS
Section 7.0. NOTICE REGARDING CONTRACTS. (A) After an Eligible
Contract is included in the Borrowing Base, in the event that Borrower becomes
aware that one of the requirements in the definition of Eligible Contracts or
one of the conditions in Section 9.1 is no longer being satisfied with respect
to the Contract, Borrower shall state such ineligibility on the next monthly
applicable reports submitted after Borrower becomes aware thereof.
(B) Upon the reasonable request of Lender and at
Lender's expense, Borrower shall to the extent authorized by law obtain current
credit bureau reports on Contract Debtors.
Section 7.1 GENERAL ASSIGNMENT . In addition to the security
interest granted in Section 6.0 Borrower hereby collaterally assigns to Lender
Borrower's rights under any agreement or contract relating to the Collateral,
including but not limited to, any agreements relating to the purchase of Bulk
Purchase Contracts (substantially in the form of Exhibit 12.0), third party
servicing contracts (substantially in the form of Exhibit 11.0), or dealer
recourse agreements (substantially in the form of Exhibit 13.0), that would
enable Lender to enforce this Agreement.
ARTICLE VIII - COLLATERAL: REMITTANCES AND INSURANCE
Section 8.0. ASSIGNMENT OF LIEN IN FINANCED VEHICLES. In addition to
the security interest granted in Section 6.0, Borrower hereby contingently
assigns to Lender Borrower's rights of foreclosure as lienholder of the Financed
Vehicles for Contracts delivered to Lender. This assignment is solely for the
purpose of Lender foreclosing on the liens following an Event of Default. Until
an Event of Default, Borrower has the right to foreclose on a Financed Vehicle.
In the event Lender exercises the right to foreclose, Lender shall be the owner
of the foreclosure sale proceeds and shall apply them to the Indebtedness.
Section 8.1. ABSOLUTE ASSIGNMENT OF REMITTANCES. In addition to the
security interest granted in Section 6.0, Borrower hereby absolutely assigns to
Lender Borrower's interest in and right to all Remittances arising on or after
the date of this Agreement, and such Remittances shall be the property solely of
Lender.
Section 8.2. INSURANCE. In addition to the security interest granted
in Section 6.0, Borrower hereby assigns absolutely to Lender Borrower's right to
refunds and benefits under Required Contract Debtor Insurance and Optional
Contract Debtor Insurance for Pledged Contracts. This assignment is evidenced by
Exhibit 8.2. In the event Lender uses this assignment to collect insurance
benefits or refunds, Lender shall be the owner of the benefits and refunds and
shall apply them to the Indebtedness.
ARTICLE IX - CONDITIONS TO ADVANCES
Section 9.0. CONDITIONS TO INITIAL ADVANCE. Notwithstanding any
other provision of this Agreement and without affecting in any manner the rights
of Lender hereunder, Lender shall not be obligated to make the initial Advance
hereunder unless and until Borrower shall have delivered to Lender, in form and
substance satisfactory to Lender each of the Supplemental Documents listed on
Exhibit 9.0 attached hereto and made a part hereof, and such additional
information and materials as Lender may reasonably request.
Section 9.1. CONDITIONS TO EACH ADVANCE. Notwithstanding any other
provision of this Agreement and without affecting in any manner the rights of
Lender hereunder, Lender shall not be obligated to make any Advances (including
the initial Advance) unless at the time of the Advance, all of the following
conditions shall, in Lender's sole determination, be satisfied:
(A) For each Eligible Contract, Borrower shall
have included the Eligible Contract on a List of Contracts delivered to Lender
and shall have delivered to Lender the Contract Delivery Documents; except that,
if a Certificate of Title has not been issued and Borrower has provided Lender
with proof acceptable to Lender that a Certificate of Title has been applied
for, or in the case of Bulk Purchase Contract will be applied for, then the
Certificate of Title must be delivered to Lender within one hundred and twenty
(120) days of the title application date and if a Bulk Purchase Contract, one
hundred and eighty (180) days from the date of purchase by Borrower.
Certificates of Title relating to Eligible Contracts serviced by Third Party
Servicers need not reflect the security interest of Borrower. However, with
respect to Eligible Contracts serviced by Third Party Servicers, the Borrower
shall have been appointed as Third Party Servicer's attorney-in-fact and shall
be permitted, under the applicable agreement with the dealer, to take all
actions necessary to reflect Borrower's first priority security interest.
(B) All of the representations and warranties of
Borrower in all of the Loan Documents shall be true and correct on and as of the
date of such Advance as though they were made on and as of such date and
Borrower shall have performed all of its obligations contained in the Loan
Documents required to be performed as of such date;
(C) No event shall have occurred and be
continuing which would constitute an Event of Default or Pre-Default Event, nor
would the making of the Advance constitute an Event of Default or Pre-Default
Event;
(D) There shall have been no material adverse
change in the financial condition of Borrower or any of the Guarantors, after
the Closing Date;
(E) No claim has been asserted or proceeding
commenced challenging this Agreement or Lender's rights under this Agreement,
and no claim has been asserted which if true would be a breach of a
representation and warranty in the Loan Documents;
(F) No Event of Default shall have occurred, and
no Pre-Default Event shall have occurred and still be in existence;
(G) Lender has a first priority perfected
security interest in the Collateral except to the extent otherwise allowed by
this Agreement or Lender in writing;
(H) An event has not occurred which entitles
Lender pursuant to Section 5.1 (E) to take over administration of the Contracts;
(I) Lender's most recent inspection of the
Collateral or Borrower's records or operations has been satisfactory to Lender;
(J) Borrower shall have provided such additional
information and documents as Lender may reasonably request; and
(K) None of the actions taken or documents
executed to satisfy the conditions in Section 9.0 have been revoked, rescinded,
terminated, or canceled without Lender's prior consent.
ARTICLE X - REPRESENTATIONS AND WARRANTIES OF BORROWER
Section 10.0. REPRESENTATIONS OF BORROWER. Borrower hereby makes the
following representations and warranties. The representations and warranties are
made as of the execution and delivery of the Agreement, and each time Borrower
delivers Contracts to Lender or requests an Advance the representations and
warranties are deemed to be made again at that time. Lender's knowledge of any
breach of the representations and warranties contained herein shall not void any
of the representations or warranties or affect Lender's rights with respect to
the breach. The following representations and warranties of Borrower are true
and correct in all material respects.
(a) ORGANIZATION, GOOD STANDING, NAME, AND LOCATION.
Borrower and Guarantors are corporations duly organized, validly existing and in
good standing under the laws of the State of Virginia, with power and authority
to own their properties and to conduct their business, and, at all relevant
times, have the power, authority and legal right to acquire, own, and pledge the
Pledged Contracts. Borrower has, is in good standing under, and is in compliance
with, all governmental approvals, licenses, permits, certificates, inspections,
consents and franchises necessary to conduct its business, to enter into and
perform this Agreement, and to own and operate its business. Borrower's
principal place of business and chief executive office is the Borrower address
set forth in Section 17.1. During the preceding five (5) years, Borrower has not
been known by or used any other corporate, trade or fictitious name, except as
disclosed in Exhibit 10.0 (a). Borrower has no subsidiaries, except as disclosed
on Exhibit 10.0 (a).
(b) DUE QUALIFICATION. Borrower has, and is in good
standing under, all licenses, permits, and approvals in all jurisdictions which
are required for Borrower's initial acquisition of the Pledged Contracts and for
Borrower's performance of this Agreement.
(c) POWER AND AUTHORITY. Borrower has the power and
authority to execute this Agreement and carry out its terms, and the execution
and performance of this Agreement have been duly authorized by all necessary
corporate action. All consents and approvals required for the performance of
this Agreement have been obtained by Borrower.
(d) VALID AND BINDING OBLIGATIONS. The Agreement
constitutes a valid loan obligation of Borrower and a valid granting of a
security interest in the Collateral to Lender, enforceable not withstanding any
rights or claims of creditors of and purchasers from Borrower; and is a legal,
valid and binding obligation of Borrower enforceable in accordance with its
terms. The Guaranties are valid and binding obligations of the Guarantors
enforceable according to their terms. Borrower's use of the Advances is a legal
and proper corporate use. Borrower has not used Advances to give any preference
to any creditor or to make a fraudulent transfer.
(e) NO VIOLATION. Borrower's execution and performance
of this Agreement does not conflict with, result in any breach of, or constitute
(with or without notice or lapse of time) a default under, (i) the articles of
incorporation or bylaws of Borrower, or (ii) any indenture, instrument,
agreement, or court order by which it is bound, (iii) nor does it result in the
creation or imposition of any lien upon any of Borrower's properties other than
that granted to Lender.
(f) NO PROCEEDINGS. There are no proceedings or
investigations pending, or to the best of Borrower's knowledge, threatened,
before any court, regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over Borrower or its properties, which (i)
assert the invalidity of this Agreement, (ii) seek to prevent the consummation
of any of the transactions contemplated by this Agreement, (iii) seek any
determination or ruling that, if determined adversely to Borrower, would
materially and adversely affect the Collateral, Borrower's ability to perform
its obligations under this Agreement, the validity or enforceability of this
Agreement, Lender's rights under this Agreement, or Borrower's financial
condition or business, or (iv) allege that Borrower is in material violation of
any statute, regulation, rule or ordinance of any governmental entity,
including, without limitation, the United States of America, any state, city,
town, municipality, or county or of any other jurisdiction, or of any agency
thereof other than as disclosed to Lender.
(g) COLLATERAL. Borrower and FCF have good and
marketable ownership of the Collateral, and the Collateral is free and clear of
all liens, claims, charges, defenses, counterclaims, offsets, encumbrances and
security interests of any kind or nature, except the Permitted Liens. The
security interests granted to Lender pursuant hereto are perfected first
priority security interests, assuming delivery to Lender of any Collateral as to
which possession is the only method of perfecting a security interest and
assuming the filing of a UCC financing statement with the collateral description
in Exhibit 10.0(g) with the Virginia State Corporation Commission; and no claim
of ownership or other interest has been asserted which would be a breach of this
Section 10.0(g).
(h) TAXES. All required federal, state and local tax
returns of Borrower have been accurately prepared and duly and timely filed
(within the initial or extended time period allowed therefor) and all federal,
state and local taxes required to be paid with respect to the periods covered by
such returns have been paid. Borrower has not been delinquent in the payment of
any tax, assessment or other governmental charge which could have a material
adverse affect upon the Collateral or Borrower's ability to perform its
obligations under the Agreement.
(i) BROKERS. Except as otherwise disclosed on Exhibit
10.0(i) attached hereto, no person has, or as a result of the transactions
contemplated hereby will have by reason of any Borrower conduct or any agreement
to which Borrower is a party, any right, interest or claim against Borrower,
Lender or the Collateral for any commission, fee or other compensation as a
finder or broker or in any similar capacity.
(j) STATUS AND CONDITION. Borrower is solvent, in
stable financial condition and is able to and does pay its liabilities as they
mature. Except as otherwise disclosed on Exhibit 10.0(j) attached hereto,
Borrower is not a party to any labor dispute or any collective bargaining
contract.
(k) DISCLOSURE. There is no fact known to Borrower or
Guarantors which Borrower or Guarantors have not disclosed to Lender in writing
with respect to the Collateral or the assets, liabilities, financial condition
or activities of Borrower or Guarantors or their Affiliates which would or may
be likely to have a material adverse effect upon the Collateral or Borrower's
ability to perform its obligations under the Agreement. All information and
documents prepared by Borrower and provided to Lender at any time are true and
accurate at the time of delivery. Borrower does not have knowledge that any
information or documents, not prepared by Borrower but delivered by Borrower to
Lender, were not true and accurate at the time of delivery.
(l) ARTICLES OF INCORPORATION AND CERTIFICATES OF GOOD
STANDING. The Borrower's Articles of Incorporation received by Lender pursuant
to Section 9.0 have not been modified. Borrower has not taken or allowed any
action which would result in it not being in good standing. Borrower has not
received notice of any actual or threatened action to revoke its articles of
incorporation or good standing.
(m) FINANCIAL STATEMENTS. All financial statements of
Borrower, Affiliates, and Guarantors delivered to Lender fairly present their
respective assets, liabilities and financial condition and income as of the
dates thereof. There are no material omissions from the financial statements and
there has been no adverse change in such assets, liabilities or financial
condition since the date of the most recently delivered financial statements.
There exists no equity or long-term investments in, or outstanding advances to,
or guaranties of, any Person except such equity, investments, advances, or
guaranties disclosed in the financial statements. The financial statements
accurately disclose all transactions with Affiliates.
(n) CONDITIONS. Each time Borrower requests an
Advance, the Conditions in Section 9.1 have been met.
(o) CHARACTERISTICS OF CONTRACTS. Each Pledged
Contract delivered to Lender as an Eligible Contract meets all of the
requirements listed in the definition of Eligible Contract, except that Borrower
makes no representation or warranty as to whether (i) the Contract meets such
requirements to Lender's satisfaction, or (ii) the Contract presents a credit,
collateral, or documentation risk unacceptable to Lender. No selection
procedures adverse to Lender have been utilized in selecting the Eligible
Contracts delivered to Lender.
(p) NO DEFAULTS. No event has occurred and no
condition exists, other than those disclosed to Lender, which would, upon the
execution and delivery of this Agreement or Borrower's performance hereunder,
constitute an Event of Default. Borrower is not in default, and no event has
occurred and no condition exists which constitutes, or with the passage of time
or the giving of notice or both, would constitute, a default under any material
agreement between Borrower and any Person, including the payment of any debt or
other obligation permitted under this Agreement to any Person for borrowed
funds.
ARTICLE XI - REPRESENTATIONS AND WARRANTIES OF THE LENDER
Section 11.0. REPRESENTATIONS OF LENDER. The Lender hereby makes
the following representations and warranties:
(a) DUE ORGANIZATION. The Lender is a corporation,
duly organized, validly existing and in good standing under the laws of the
State of New York, and has the power to own its assets and to transact the
business in which it is presently engaged with regard to this Agreement;
(b) REQUISITE POWER. The Lender has the power to
execute, deliver and perform this Agreement, and has taken all necessary action
to authorize the execution, delivery and performance of this Agreement; and
(c) BINDING AGREEMENT. This Agreement has been duly
executed and delivered by the Lender and constitutes the legal, valid and
binding obligation of the Lender, enforceable in accordance with its terms.
ARTICLE XII - INDEMNITIES
Section 12.0. INDEMNITY. Borrower shall indemnify and hold Lender
harmless from any and all losses, claims, damages, costs, good faith
settlements, expenses, taxes, reasonable attorneys' fees or other liabilities,
including but not limited to costs of investigation, litigation fees and
expenses, and costs in successfully asserting the right to indemnification
hereunder (collectively, "Losses") incurred by Lender at any time and pertaining
to (i) facts which are, or allegations which if true would be, a breach of any
representation, warranty, obligation, agreement or covenant of Borrower
contained in the Loan Documents, or (ii) Lender entering into the Loan Documents
or making Advances or handling Remittances or administering Pledged Contracts,
or (iii) an Event of Default, or (iv) activities, operations or conduct of
Borrower, Guarantor, or Affiliates.
ARTICLE XIII - AFFIRMATIVE COVENANTS
The following covenants shall remain in effect until the full
payment and performance of all of Borrower's obligations to Lender:
Section 13.0. FINANCING STATEMENTS. At the request of Lender,
Borrower shall execute such financing statements as Lender determines may be
required by law to perfect, maintain and protect the interest of Lender in the
Collateral and in the proceeds thereof.
Section 13.1. BOOKS AND RECORDS. Borrower shall maintain accurate
and complete books and records with respect to the Collateral, Borrower's
business, and Borrower's administration of the Pledged Contracts. All accounting
books and records shall be maintained in accordance with GAAP consistently
applied.
Section 13.2. PAYMENT OF FEES AND EXPENSES. Borrower shall pay to
Lender, on demand, any and all fees, costs or expenses which Lender pays to a
bank or other similar institution arising out of or in connection with (i) the
forwarding to Borrower, or any other Person on behalf of Borrower, by Lender of
Advances pursuant to this Agreement and (ii) the return of payments deposited
for collection by Lender, including but not limited to payments by Borrower and
payments by Contract Debtors.
Section 13.3. CONTINUITY OF BUSINESS AND COMPLIANCE WITH AGREEMENT.
Borrower shall continue in business in a prudent, reasonable and lawful manner
with all necessary licenses, permits, and qualifications necessary to perform
this Agreement. Borrower shall regularly and properly train its employees to
comply with all applicable laws governing the administration and purchase of
Contracts. Borrower shall take the steps necessary for the representations and
warranties in Article X to be true at all times. In the event that Borrower
learns that a representation and warranty in Article X is no longer true, it
shall notify Lender within three (3) Business Days after learning thereof.
Section 13.4. FINANCIAL STATEMENTS AND ACCESS TO RECORDS. Borrower
shall provide Lender with monthly unaudited consolidated and consolidating
financial statements and certificates of covenant compliance, as soon as
possible but within 45 days of the end of each of Borrower's Accounting Periods,
and with audited annual financial statements within ninety (90) days of
Borrower's fiscal year-end audited by Ernst & Young LLP or an independent
certified public accounting firm acceptable to Lender. Borrower shall deliver to
Lender with each financial statement a certificate by Borrower's chief financial
officer in the form of Exhibit 13.4. Borrower shall provide Lender with audited
or unaudited annual financial statements of the Guarantors within (90) days
after the end of each calendar year, and for such other periods as Lender may
request.
Section 13.5. SUBSEQUENT ACTIONS. At the request of Lender, Borrower
shall execute and deliver to Lender after execution of this Agreement such
documents or take such action as Lender reasonably deems necessary to carry out
the Agreement.
Section 13.6. FINANCIAL CONDITION AND PORTFOLIO PERFORMANCE.
Borrower (on a consolidated basis), FCF, and TFC Enterprises Incorporated (on a
consolidated basis) ("TFCEI") shall maintain the financial and portfolio
covenants listed on Exhibit 13.6. The covenants shall be measured as of the end
of each Accounting Period and reported to Lender with the Financial Statement
Certificate attached as Exhibit 13.4. Borrower shall notify Lender in writing,
promptly upon its learning of any material adverse change in the financial
condition of Borrower or a Guarantor.
Section 13.7. LITIGATION MATTERS. Borrower shall notify Lender in
writing, promptly upon its learning thereof, of any litigation, arbitration or
administrative proceeding which may materially and adversely affect the
operations, financial condition or business of Borrower or Borrower's ability to
perform this Agreement or which in any way involves Lender's security interest
in the Collateral or other rights under the Loan Documents.
Section 13.8 PAYMENT OF OBLIGATIONS. Borrower shall pay and perform,
as and when due, all of its material obligations, including, without limitation,
all of its obligations to Lender.
Section 13.9. BORROWER INSURANCE. Borrower shall maintain customary
amounts of insurance covering, without limitation, fire, theft, burglary, public
liability, property damage, workers' compensation, and liability arising from
Borrower's collection of Contracts and sale of motor vehicles. Borrower shall
pay all insurance premiums payable for such coverage and shall upon request of
Lender deliver a copy of the policies of such insurance to Lender, together with
evidence of payment of all premiums therefor.
Section 13.10. CERTIFICATES OF TITLE. Borrower shall promptly apply
for and obtain Certificates of Title for all Financed Vehicles. Borrower shall
promptly deliver to Lender all Certificates of Title it receives for Financed
Vehicles for Pledged Contracts in accordance with Section 9.1(A).
Section 13.11. INTEREST RATE COLLAR. Until the Indebtedness is paid
in full, Borrower shall keep in place an interest rate collar issued by a firm
rated at least A by any major rating institution or by a firm acceptable to
Lender. The collar shall cover a principal amount of at least Fifty Million
Dollars ($50,000,000.00) through December 31, 1997 and at least Seventy-five
Million Dollars ($75,000,000.00) at all times after December 31, 1997. The
Interest Rate Collar shall become effective and begin to pay benefits to
Borrower in the event that LIBOR exceeds 7.5%.
ARTICLE XIV - NEGATIVE COVENANTS
Borrower covenants and agrees that hereafter, without Lender's prior
written consent, which Lender may or may not give, in its sole discretion, until
all of Borrower's obligations to Lender with respect to this Agreement are
performed and paid in full:
Section 14.0. MERGERS, ETC. Borrower shall not merge with,
consolidate with, acquire or otherwise combine with any Person, transfer any
division or segment of its operations to any Person or form any subsidiary.
Section 14.1. INVESTMENTS. Borrower shall not make any investment
in any Person other than existing subsidiaries through the direct or indirect
holding of securities or otherwise.
Section 14.2. DIVIDENDS. Borrower shall not declare or pay
dividends except in accordance with all applicable laws and not in excess of
fifty percent (50%) of each year's net income available for distribution.
Section 14.3. LOANS AND ADVANCES. Except for: (i) routine and
customary salary advances, or loans made for the express purpose of repayment of
previously paid bonuses, and (ii) inter-company loans by and among Borrower, FCF
and TFCEI, Borrower shall not make any unsecured loans or other advances of
money to officers, directors, employees, stockholders or Affiliates in excess of
ten thousand dollars ($10,000.00) in total. Borrower shall not incur any
additional long term or working capital debt (other than the Indebtedness)
secured by Contracts, and shall not create, incur, assume or suffer to exist any
short term indebtedness which is not Subordinated Debt, without Lender's prior
approval.
Section 14.4. CAPITAL STRUCTURE. Borrower shall not (i) redeem,
retire, purchase or otherwise acquire, directly or indirectly, any of Borrower's
stock, or (ii) make any change in Borrower's capital structure, or (iii) make
any change in any of its business objectives, purposes and operations which
might in any way adversely affect the payment or performance of, or Borrower's
ability to pay and perform, its obligations to Lender with respect to this
Agreement. Borrower shall not allow any transfer of ownership of Borrower
without the prior written consent of Lender.
Section 14.5. TRANSACTIONS WITH AFFILIATE. Borrower shall not enter
into, or be a party to, any transaction with any Affiliate, or stockholder of
Borrower, except, consistent with Borrower's practice before entering into this
Agreement, in the ordinary course of, and pursuant to the reasonable
requirements of, Borrower's business and upon fair and reasonable terms which
are fully disclosed to Lender and are no less favorable to Lender than would
obtain in a comparable arm's length transaction with a Person not an Affiliate
or stockholder of Borrower.
Section 14.6. ADVERSE TRANSACTIONS. Borrower shall not enter into
any transaction which adversely affects the Collateral or Borrower's ability to
perform this Agreement or Lender's rights under the Loan Documents; or permit or
agree to any extension, compromise or settlement or make any change or
modification of any kind or nature with respect to any Pledged Contract,
including any of the terms thereof or the amounts due thereunder except for
customary payment extensions of Pledged Contracts done, in accordance with
Borrower's policies and routines in existence on the Closing Date, as contained
in Exhibit 5.1(A).
Section 14.7. GUARANTIES. Except as disclosed to Lender, Borrower
shall not guaranty, or otherwise in any way become liable with respect to, the
obligations or liabilities of any other Person except (i) the Affiliates'
obligations to Lender, and (ii) by customary endorsement of instruments or items
of payment for deposit to the general account of Borrower or for delivery to
Lender.
Section 14.8. COLLATERAL. Except as otherwise expressly permitted in
the Loan Documents, Borrower shall not convey or allow any ownership, security,
or other, interest in the Collateral other than Borrower's ownership interest
and Lender's security interest. Borrower shall not interfere with or countermand
Lender's instructions to any Person to send Remittances to the Post Office Box,
the Depository Account or Lender. Borrower may sell or pledge Contracts which
are not Eligible Contracts provided that the sale or loan proceeds are delivered
to Lender for application to the Indebtedness. Borrower may sell or pledge
Contracts for financed vehicles other than Motor Vehicles to the extent that the
Outstanding Principal Balance of such Contracts exceeds 5% of the Borrowing Base
and Lender does not agree to make advances against such excess. Borrower may
grant purchase money security interests in its equipment to Persons other than
Lender. Borrower may lease, as lessee, equipment it uses.
ARTICLE XV - EVENTS OF DEFAULT
Section 15.0. EVENTS OF DEFAULT. An Event of Default means the
occurrence or existence of one or more of the following events or conditions
(whatever the reason for the Event of Default and whether voluntary, involuntary
or caused by operation of law) which is not waived in writing by Lender or cured
as provided in Section 15.7 to the extent 15.7 applies:
(A) A breach by Borrower of any representation,
warranty or obligation contained herein or in the other Loan Documents or in any
other agreement with Lender.
(B) A breach by a Guarantor or an Affiliate of any
representation, warranty, or obligation contained in a Guaranty or any other
agreement with Lender, including but not limited to the Warrant and the
Registration Rights Agreement.
(C) Any default by Borrower (including but not limited
to a default due to non-payment) under any material agreement, document or
instrument to which Borrower is a party or by which Borrower or any of its
property is bound, creating or relating to any debt or other obligation (other
than the Loan), if the payment or maturity of such debt or obligation is
accelerated as a consequence of such default or demand for payment thereof is
made.
(D) The Collateral or any other of Borrower's or
a Guarantor's or an Affiliate's assets are attached, seized, levied upon or
subjected to a writ or distress warrant, or come within the possession of any
receiver, trustee, custodian or assignee for the benefit of creditors and the
same is not dissolved within sixty (60) days thereafter; an application is made
by any Person other than Borrower for the appointment of a receiver, trustee, or
custodian for the Collateral or any other of Borrower's or a Guarantor's or an
Affiliate's assets and the same is not dismissed within sixty (60) days after
the application therefor; Borrower or a Guarantor or an Affiliate shall have
concealed, removed or permitted to be concealed or removed, any part of its
property, with intent to hinder, delay or defraud its creditors or made or
suffered a transfer of any of its property which may be fraudulent under any
bankruptcy, fraudulent conveyance or other similar law.
(E) An application is made by Borrower or a
Guarantor or an Affiliate for the appointment of a receiver, trustee or
custodian for the Collateral or any other of Borrower's or a Guarantor's or an
Affiliate's assets; a petition under any section or chapter of the Bankruptcy
Code or any similar federal or state law or regulation shall be filed by
Borrower, or a Guarantor or an Affiliate; Borrower, or a Guarantor or an
Affiliate shall make an assignment for the benefit of its creditors or any case
or proceeding is filed by Borrower, or a Guarantor or an Affiliate for its
dissolution, liquidation, or termination; Borrower ceases to conduct its
Contract purchase and servicing business.
(F) Borrower is enjoined, restrained or in any
way prevented by court order from conducting all or any material part of its
business affairs, or a petition under any section or chapter of the Bankruptcy
Code or any similar federal or state law or regulation is filed against
Borrower, or a Guarantor or an Affiliate, or any case or proceeding is filed
against Borrower, or a Guarantor or an Affiliate for its dissolution or
liquidation, and such injunction, restraint, petition, case or proceeding is not
dismissed within sixty (60) days after the entry or filing thereof.
(G) A notice of lien, levy or assessment is
filed of record with respect to all or any of Borrower's or a Guarantor's or an
Affiliate's assets by the United States, or any department, agency or
instrumentality thereof, or by any state, county, municipal or other
governmental agency and it is not satisfied within sixty (60) days after the
filing; or if any taxes or debts become a lien or encumbrance upon the
Collateral or any other of Borrower's or a Guarantor's or an Affiliate's assets,
and the same is not satisfied within sixty (60) days after the same becomes a
lien or encumbrance.
(H) Borrower or a Guarantor or an Affiliate
becomes insolvent or admits in writing to its inability to pay its debts as they
mature.
(I) An event has occurred which entitles Lender
pursuant to Section 5.1(E) to take over administration of the Contracts.
(J) A financial statement of Borrower or a
Guarantor or an Affiliate reveals that its financial condition has materially
adversely deteriorated after the execution of this Agreement.
(K) Any other event occurs which will, in
Lender's reasonable opinion, have a material adverse effect on the Collateral,
Lender's rights under the Loan Documents, or on Borrower's financial or business
condition, operations or prospects, including, without limitation, any change in
the due diligence procedures used by Borrower to qualify Contract Debtors for
Contracts, and Lender has given Borrower at least ten (10) Business Days' notice
thereof.
Section 15.1. DEFAULT RATE OF INTEREST. Upon and after an Event of
Default and subject to Section 2.4, Borrower's obligations to Lender shall
continue to bear interest, calculated daily on the basis of a 365-day year at
the per annum rate set forth in Section 2.2, plus additional post-default
interest of one percent (1%) per annum until paid in full.
Section 15.2. LENDER'S REMEDIES. Whenever an Event of Default or a
Pre-Default Event exists or whenever Lender is entitled to take over Contract
administration, Lender may without prior notice immediately suspend making
Advances. Upon and after an Event of Default, Lender shall have the following
rights and remedies. The rights and remedies shall be cumulative, and non
exclusive, except to the extent required by law. Lender's exercise of any right,
remedy, or attorney-in-fact appointment shall not relieve Borrower of any of its
obligations to Lender.
(A) The right, at Lender's discretion and
without notice, (i) to immediately cease further Advances and/or terminate this
Agreement, and (ii) to declare Borrower's obligations to Lender immediately due
and payable, whereupon Borrower's obligations shall become and be due and
payable, without presentment, demand, protest or further notice or process of
any kind, all of which are expressly waived by Borrower. Borrower's obligations
to Lender shall be immediately due and payable without declaration by Lender if
the Event of Default consists of a petition filed under the Bankruptcy Code or
any similar federal or state law.
(B) All of the rights and remedies of a secured
party under the UCC and other applicable laws, including the right to appoint a
receiver.
(C) The right at any time to (i) enter through
self-help and without judicial process upon the premises of Borrower, without
any obligation to pay rent to Borrower, or to enter any other place or places
where the Collateral is located and kept, and remove the Collateral or remain on
and use the premises for the purpose of collecting or disposing of the
Collateral, and (ii) require Borrower to assemble the Collateral and make it
available to Lender at a place to be designated by Lender.
(D) The right to sell or otherwise dispose of
all or any of the Collateral at public or private sale, as Lender in its sole
discretion may deem advisable, with such notice as may be required by law; and
such sales may be adjourned from time to time with or without notice. Lender
shall have the right to conduct such sales on Borrower's premises without charge
for such time and Collateral as Lender may see fit. Lender is hereby granted a
license or other applicable right to use, without charge, Borrower's labels,
patents, 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 for this purpose. 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 any 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 Borrower's obligations to Lender. Without excluding other methods of
disposition which may be commercially reasonable, it shall be a commercially
reasonable disposition of the Pledged Contracts and Contract Rights for Lender
to collect and enforce the Contracts and Contract Rights in the same manner that
it collects and enforces similar Contracts and Contract Rights for its own
account or for the account of other Persons. If any deficiency shall arise from
the disposition of Collateral, Borrower shall remain liable to Lender therefor.
(E) The right at any time and from time to time
thereafter, at Lender's sole discretion and without notice to Borrower, (i) to
enforce payment of the Contract Debtor's and Contract Rights Payor's
obligations, and to collect and foreclose, by legal proceedings or otherwise,
the Collateral in the name of Lender or Borrower and (ii) to take control, in
any manner, of any item of payment for or proceeds of the Collateral. Lender is
not obligated to pursue the Collateral or the Guarantors or any other Person in
order to enforce Borrower's obligations to Lender.
(F) The right to take over and act in a
commercially reasonable manner in Lender's or Borrower's name all or part of the
administration of the Contracts.
(G) The right to carry out the actions within
the scope of Borrower's appointment of Lender as attorney-in-fact.
(H) The right to offset or apply the funds in
the Depository Account.
Section 15.3. INJUNCTIVE RELIEF. Borrower recognizes that if there
is an Event of Default then, depending on the nature of the Event of Default, it
may be that no remedy at law will provide complete or adequate relief to Lender,
and Lender shall be entitled to temporary and permanent injunctive relief in any
such case without the necessity of proving actual damages. The injunctive relief
shall not be a waiver of Lender's rights to other relief and remedies.
Section 15.4. NOTICE. Any notice required to be given by Lender of a
sale, lease, or other disposition of the Collateral, which is given pursuant to
Section 17.1 at least ten (10) days prior to such proposed action, shall
constitute commercially reasonable and fair notice thereof to Borrower. Notice
of less duration shall not be presumed to be commercially unreasonable or
unfair.
Section 15.5. APPOINTMENT OF LENDER AS BORROWER'S LAWFUL ATTORNEY.
Borrower irrevocably appoints Lender (and all persons designated by Lender) as
Borrower's true and lawful attorney-in- fact to act in Borrower's place in
Borrower's or Lender's name to: (i) demand payment of the Pledged Contracts,
other Collateral consisting of payment obligations and Contract Rights; (ii)
enforce payment of the Pledged Contracts, other Collateral consisting of payment
obligations and Contract Rights, by legal proceedings or otherwise; (iii)
exercise all of Borrower's rights and remedies with respect to the collection
and enforcement of the Pledged Contracts, other Collateral consisting of payment
obligations, and Contract Rights; (iv) settle, adjust, compromise, discharge,
release, extend or renew the Pledged Contracts, other Collateral consisting of
payment obligations, and Contract Rights; (v) if permitted by applicable law,
sell or assign the Collateral upon such terms, for such amounts and at such time
or times as Lender deems advisable; (vi) take control, in any manner, of any
item of payment or proceeds with respect to the Collateral; (vii) prepare, file
and sign Borrower's name on any proof of claim in Bankruptcy or similar document
against any Contract Debtor or Contract Rights Payor; (viii) prepare, file and
sign Borrower's name on any notice of lien, assignment or satisfaction of lien
or similar document in connection with the Collateral; (ix) do all acts and
things necessary, in Lender's sole discretion, to exercise Lender's rights
granted in or referred to in Section 15.2 of this Agreement; (x) endorse the
name of Borrower upon any item of payment or proceeds consisting of or relating
to the Collateral and deposit the same to the account of Lender for application
to the Indebtedness; (xi) use the information recorded on or contained in any
data processing equipment and computer hardware and software relating to the
Collateral to which Borrower has access; (xii) open Borrower's mail to collect
Collateral and direct the Post Office to deliver Borrower's mail to an address
designated by Lender; and (xiii) do all things necessary to carry out and
enforce this Agreement which Borrower has failed to do. Borrower ratifies and
approves all acts of Lender as Borrower's attorney-in-fact. Lender shall not,
when acting as attorney-in-fact, be liable for any acts or omissions as or for
any error of judgment or mistake of fact or law, except for actions taken in bad
faith. This power, being coupled with an interest, is irrevocable until all
payment and performance obligations of Borrower to Lender have been fully
satisfied. Borrower shall upon request of Lender execute powers of attorney to
separately evidence the foregoing powers granted to Lender. All costs, fees and
expenses incurred by Lender, or for which Lender becomes obligated, in
connection with exercising any of the foregoing powers shall be payable to
Lender by Borrower on demand by Lender and until paid shall be part of the Loan.
Section 15.6. LENDER'S DEFAULT. In the event of any default of the
Loan Documents by Lender or any claim by Borrower related to the Loan Documents,
Borrower's sole and exclusive remedy against Lender shall be a cause of action
sounding in contract with damages limited to actual and direct damages incurred.
Lender shall in no event be liable for ordinary negligence, delay in performance
or any consequential, special, punitive, incidental or indirect damages,
including without limitation, loss of profit or goodwill. Lender shall in no
event be liable for any loss or damage directly or indirectly resulting from the
furnishing of services or reports under this Agreement. With respect to any
goods and services provided by Lender, LENDER MAKES NO warranties, whether
expressed or implied, including, without limitation, implied WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Borrower shall have no
cause of action against Lender for a default of the Loan Documents unless
Borrower first notices Lender of the default and allows Lender a reasonable time
of at least thirty (30) Business Days to cure the default and Lender fails to
cure the default.
15.7 BORROWER'S RIGHT TO CURE.
In the event of an unintentional default by Borrower with respect to
payment obligations or the delivery of Contract Delivery Documents or
Remittances, Borrower shall have three (3) Business Days after written notice
from Lender to cure the default before Lender may exercise its right to xxx
Borrower or its rights under Sections 15.2(C), (D), (E) or (F). In the event of
any other type of unintentional default by Borrower, Borrower shall have thirty
(30) calendar days after written notice from Lender to cure the default before
Lender may exercise such rights. Regardless of whether Borrower cures a default,
Lender shall be entitled to indemnification pursuant to Article XII with respect
to any Losses arising from claims asserted against Lender.
(B) All other provisions of this Agreement
(including the cure provisions of Section 15.7 (A) above) notwithstanding, if
(i) as a result of default, any obligation of Borrower for the payment of any
indebtedness or liability for borrowed money (other than hereunder) becomes or
is declared to be due and payable prior to the expressed maturity thereof, or
(ii) as a result of default under or in connection with any indebtedness or
liability for borrowed money, a secured party takes action to enforce its rights
or remedies with regard to any security interest or collateral granted or
provided by the Borrower, then Lender may declare on Event of Default hereunder
effective upon written notice thereof to the Borrower, and may thereupon
exercise all rights and remedies of Lender provided hereunder (including but not
limited to Section 15.2) or otherwise at law upon an Event of Default,
Pre-Default Event or default. Lender's right to declare an Event of Default and
to exercise its remedies pursuant to the preceding sentence is absolute and
unconditional.
15.8 MATERIAL ADVERSE CHANGE. Lender shall not exercise any of the
remedies provided in Section 15.2 (other than the right to cease making
Advances) based solely on an Event of Default under Section 15.0(K) unless
Borrower fails to pay the Indebtedness in full within sixty (60) days of the end
of the 10 Business Day period provided in Section 15.0(K).
ARTICLE XVI - DEFINITIONS
Section 16.0 DEFINED TERMS. Whenever used in this Agreement with
such upper case letters as are shown below, the following terms shall have the
respective meanings set forth below. When the terms are used in the plural, the
plural forms of the meanings shall apply.
ACCOUNTING DATE: the last day of an Accounting Period.
ACCOUNTING PERIOD: a calendar month, beginning with the month during
which this Agreement is executed and ending with the calendar month during which
the Indebtedness has been paid in full following termination of this Agreement.
ADVANCE: each of the Loan advances described in Article III of this
Agreement.
AFFILIATE: Guarantors and any Person, excluding an individual
stockholder of TFCEI (including any individuals who are also members of
Borrower's board of directors and officers of the Borrower), now or in the
future (i) directly or indirectly owned or controlled in whole or in part by
Borrower or a Guarantor or, (ii) who directly or indirectly owns or controls, in
whole or in part, the Borrower or any Guarantor, or (iii) under common ownership
or control with Borrower or any Guarantor. For the purpose of this definition,
"control" shall mean the power to direct, or cause the direction of, management
or policies, whether through the ownership of voting securities, by contract or
otherwise. [For the purpose of this definition, "owned" shall mean at least 10%
ownership.]
AVAILABLE LINE: One hundred and fifty million dollars
($150,000,000)
BORROWING BASE: the amount equal to the lesser of (i) the Available
Line or (ii) the sum of (a) fifty percent (50%) of the Outstanding Principal
Balance of all Contracts which are Credit Builder's Contracts and (b) eighty-two
percent (82%) of the Outstanding Principal Balance of all other Eligible
Contracts during the time they are included in the Borrowing Base pursuant to
Section 3.1; provided however, that the advance against all other Eligible
Contracts shall only be eighty-two percent (82%) through December 31, 1996. The
advance against all other Eligible Contracts shall decrease one half percent
(.5%) per month on the first day of January, February, March and April, 1997, so
that the advance against all other Eligible Contracts will not exceed eighty
percent (80%) by April 1, 1997.
In the event that the FCF Collateral is released, then the advance
against all other Eligible Contracts will be reduced by 3% at the time that the
FCF Collateral is released and at all times thereafter.
BORROWER'S NET INVESTMENT: Gross Outstanding Balances less unearned
finance charges less dealer holdback, less discount obtained from the Dealer
when purchasing the Contract(s).
BULK PURCHASE CONTRACT: a Contract acquired on a group basis
through purchase of a Dealer's portfolio of existing installment sales
contracts.
BUSINESS DAY: any day other than (i) a Saturday or Sunday, or (ii)
a day on which banking institutions in the State of Virginia are required by law
to be closed.
CERTIFICATE OF TITLE: with respect to each Financed Vehicle, the
certificate of title (or other evidence of ownership) issued by the department
of motor vehicles, or other appropriate governmental body, of the state in which
the Financed Vehicle is to be registered showing the Contract Debtor as owner,
with either notation of the Borrower's first lien or such other status indicated
thereon which is necessary to perfect Borrower's security interest in the
Financed Vehicle as a first priority interest, and showing no other actual or
possible lien interest in the Financed Vehicle.
CHARGED-OFF CONTRACT: a Pledged Contract; (i) which appears as a 180
day contractual delinquent and a 90 day recency delinquent, or in the case of
non-monthly accounts, their equivalent, (ii) which has been written off as
reasonably uncollectable in accordance with Borrower's policies, or (iii) which
has been settled for less than the Outstanding Principal Balance.
CHARGED-OFF LOSSES: as of the end of an Accounting Period, the Net
Credit Losses recorded during the Accounting Period, divided by the average
Outstanding Principal Balance, for the Accounting Period (calculated using the
simple interest method), of all Contracts owned by Borrower and pledged to
Lender, which are not Charged-Off Contracts, expressed as a percentage.
CLOSING DATE: the date on which the first Advance is made.
COLLATERAL: any and all real and personal, tangible and intangible,
property in which Lender is granted a security interest now or hereafter, in
this Agreement or otherwise, to secure Borrower's obligations to Lender.
CONTRACT: an installment or conditional sale contract, with any
amendments, owned or acquired by Borrower pursuant to which a Contract Debtor
has: (i) purchased a new or used Motor Vehicle, (ii) granted a security interest
in the Motor Vehicle to secure the Contract Debtor's payment obligations, and
(iii) agreed to pay the unpaid purchase price and a finance charge in periodic
installments no less frequently than weekly.
CONTRACT DEBTOR: the Person that has executed a Contract as a
purchaser, and any guarantor, co-signer or other Person obligated to make
payments under the Contract.
CONTRACT DEBTOR DOCUMENTS: those documents as are identified on the
attached Exhibit 6.3 attached hereto and made a part hereof.
CONTRACT DELIVERY DOCUMENTS: the original Certificate of Title, and
the original executed Contract with original Contract Debtor and Dealer
signatures and bearing on its front or back surface an assignment to Lender.
CONTRACT RIGHTS: with respect to Pledged Contracts, (i) Borrower's
interest in the Financed Vehicle; (ii) all rights of Borrower regarding the
Contract and Financed Vehicle, including but not limited to rights to electronic
funds transfers and rights under all dealer agreements and purchase agreements
pursuant to which the Contract was acquired by Borrower; (iii) all rights of
Borrower with respect to Optional Contract Debtor Insurance, Required Contract
Debtor Insurance, and any other policies of fire, theft or comprehensive
insurance, collision insurance, public liability insurance or property damage
insurance maintained with respect to the Financed Vehicle, the Contract, or the
Contract Debtor; (iv) all rights of Borrower, if any, to prepaid dealer rate
participation in connection with the Contract; (v) Remittances, and (vi) all
rights of Borrower to the originals of all books, records (including electronic
data), reports, files, and documents relating to the Contracts, including, but
not limited to, Contract Debtor Documents, financial statements of Contract
Debtors, and all payment reports or records relating to the Contracts.
CONTRACT RIGHTS PAYORS: Persons, other than Contract Debtors,
against whom Contract Rights may be asserted.
CREDIT BUILDER CONTRACT: a Contract which is underwritten by
Borrower in accordance with the credit approval guidelines attached hereto as
Exhibit 3.1(B), or as such Exhibit may be amended from time to time.
DEALER: the seller of the Financed Vehicle to the Contract Debtor.
DEALER ADVANCE: the outstanding amount of acquisition payments made
to Dealers for Credit Builder Contracts from Borrower's general ledger account.
DEBT RATIO: the debt-to-equity ratio, calculated in accordance with
GAAP, by comparing total liabilities, other than Subordinated Debt, to Net
Worth.
DELINQUENCY MEASUREMENT: as of the end of an Accounting Period, the
sum of the Gross Outstanding Balances of all Delinquency Measurement Contracts
for which more than 50% of those Scheduled Payments due during the prior 30 days
are due and unpaid, divided by the sum of the Gross Outstanding Balances of all
Delinquency Measurement Contracts, expressed as a percentage.
DELINQUENCY MEASUREMENT CONTRACTS: all Pledged Contracts which do
not constitute Charged-Off Contracts.
DEPOSITORY ACCOUNTS: bank accounts owned by Lender at banks
designated by Lender for the purpose of receiving Remittances made payable to it
or Borrower. Borrower shall pay all expenses associated with the Depository
Accounts.
ELIGIBLE CONTRACT: each Contract delivered by Borrower to Lender
which is listed on a List of Contracts delivered to Lender at the same time, and
which in Lender's sole determination satisfies each of the requirements set
forth on Exhibit 3.1 at the time of delivery and thereafter except to the extent
expressly stated in Exhibit 3.1 to apply only at delivery or only thereafter.
EVENT OF DEFAULT: this term has the meaning provided in Section
15.0 of this Agreement.
FINANCED VEHICLE: the new or used Motor Vehicle purchased by a
Contract Debtor pursuant to a Contract, or any substituted vehicle which is
properly documented.
GAAP: Generally Accepted Accounting Principles
GROSS CREDIT LOSSES: For any Accounting Period, the sum of all
Charged-Off Contracts reflected on Borrower's general ledger, calculated in
accordance with GAAP.
GROSS OUTSTANDING BALANCE: the total of all remaining payments due
under a Contract plus any other amount due thereunder.
GUARANTORS: TFCEI, TIA, FCF and any Person who guarantees
Borrower's obligations to Lender.
INDEBTEDNESS: the Loan and all other amounts, including but not
limited to interest, that Borrower owes Lender in connection with this
Agreement.
INTEREST COVERAGE: the sum of Borrower's year-to-date pre-tax income
plus Borrower's year-to-date interest expense, compared to Borrower's
year-to-date interest expense, expressed as a ratio each Accounting Period. For
purposes of calculating Interest Coverage, any interest expense associated with
the Warrants granted to Lender shall be added to pre-tax income and not included
in interest expense.
LIBOR RATE: the average of the "one month" London Interbank Offered
Rates ("LIBOR") published in the Money Rates column of the Wall Street Journal
during the calendar month immediately preceding the calendar month for which
interest is being calculated, or published in such other publication as Lender
may designate.
LINE FEE: the fee payable annually by Borrower to Lender equal to
one quarter of one percent (.25%) times the Available Line.
LIST OF CONTRACTS: the list delivered to Lender by Borrower with
each Contract or group of Contracts which: (i) identifies each Contract being
delivered by account number, the name of the Contract Debtor and the Outstanding
Principal Balance, of the Financed Vehicle, and (ii) shows the total number of
Contracts and the total of the Outstanding Principal Balances.
LOAN: the outstanding principal amount of the Advances, plus all
other amounts advanced, expended or applied by Lender under this Agreement to or
for the benefit of Borrower or to perform or enforce Borrower's covenants in
this Agreement.
LOAN AVAILABILITY: the amount by which the Borrowing Base exceeds
the Loan.
LOAN DOCUMENTS: this Agreement, the guaranties signed by the
Guarantors, and the Supplemental Documentation.
MOTOR VEHICLE: A passenger motor vehicle, van, motorcycle, or light
duty truck which is not manufactured for a particular commercial purpose and
which may be registered for use on public highways and is not a "grey market"
vehicle.
NET CREDIT LOSSES: For any Accounting Period, the difference
between Gross Credit Losses and Recoveries, calculated in accordance with GAAP.
NET WORTH: the total of shareholders' equity (including capital
stock, additional paid-in capital, and retained earnings) plus Subordinated
Debt, less (i) the total amount of loans and debts due from Affiliates,
shareholders, officers, or employees, and (ii) the total amount of any
intangible assets, including without limitation goodwill.
OPTIONAL CONTRACT DEBTOR INSURANCE: any insurance, other than
Required Contract Debtor Insurance which insures a Financed Vehicle or a
Contract Debtor's obligations under a Contract, including but not limited to
credit life, credit health, credit disability, unemployment insurance; and any
service contract, mechanical breakdown coverage, warranty, or extended warranty
for a Financed Vehicle.
OUTSTANDING PRINCIPAL BALANCE: the outstanding principal balance of
a Contract calculated by subtracting the unearned finance charge from the Gross
Outstanding Balance, where applicable.
PERMITTED LIEN: (i) any security interest or lien at any time
granted in favor of Lender; (ii) liens securing claims of materialmen,
mechanics, carriers, warehousemen, landlords and other similar Persons for
labor, materials, supplies or rentals incurred in the ordinary course of
Borrower's business; (iii) liens resulting from deposits made in the ordinary
course of business in connection with worker's compensation, unemployment
insurance, social security and other similar laws; and (iv) liens of Nations
Bank as acknowledged in the Intercreditor Agreements dated August 15, 1995 and
December 22, 1994.
PERSON: any individual, sole proprietorship, partnership, joint
venture, trust, unincorporated organization, association, corporation,
institution, entity, party, or government (including, any instrumentality or
division thereof).
PLEDGED CONTRACT: a Contract owned on the Closing Date or in the
future by Borrower which is subject to the security interest granted in Section
6.0.
POINT OF SALE CONTRACT: a Contract which is not a Bulk Purchase
Contract.
POST OFFICE BOX: the post office box whose rights are owned by
Lender into which Borrower shall receive all Remittances.
PRE-DEFAULT EVENT: An event which with the passage of time, the
giving of notice, or both, would constitute an Event of Default if Lender gave
any notice required by this Agreement for the event to be an Event of Default,
or if the event continued past the end of any period specifically allowed by
this Agreement for the event to continue before it becomes an Event of Default.
RECOVERIES: For any Accounting Period, the sum of all amounts
received on account of previously Charged-Off Contracts, calculated in
accordance with GAAP.
REMITTANCES: all payments made with respect to Pledged Contracts,
including, but not limited to, Scheduled Payments, full and partial prepayments,
liquidation proceeds, Recoveries, insurance proceeds and refunds, late charges,
fees (including but not limited to NSF fees and extension fees), and payments
from Contract Rights Payors.
REPOSSESSION INVENTORY: Motor Vehicles which have been repossessed
by Borrower or any of its agents. Repossession Contracts shall not exceed 3% of
all Contracts which do not constitute Charged-Off Contracts.
REQUIRED CONTRACT DEBTOR INSURANCE: insurance for physical damage
to, and theft or loss of, the Financed Vehicle, having a deductible no higher
than $500 and providing coverage at least equal to the actual cash value of the
Financed Vehicle or the Outstanding Principal Balance, whichever is less.
RESERVE: shall mean the aggregate balance of all unamortized
discounts plus reserves for credit losses.
RESERVE REQUIREMENT: calculated at the end of each quarter as the
Reserve available for credit losses divided by the Outstanding Principal
Balances of all Delinquency Measurement Contracts with two (2) or more Scheduled
Payments due for which more than fifty percent (50%) of those Scheduled Payments
were due during the prior thirty (30) days as stated on the financial
statements, expressed as a percentage.
ROLLING AVERAGE DELINQUENCY: the weighted average of the
Delinquency Measurements for any six consecutive Accounting Periods.
ROLLING AVERAGE CHARGED-OFF LOSSES: the weighted average of the
Charged-Off Losses for any six Accounting periods.
SCHEDULE OF PAYMENTS: the schedule of payments disclosed on a
Contract.
SCHEDULED PAYMENT: the periodic installment payment amount
disclosed in the Schedule of Payments for the Contract.
SKIP LOSS INVESTIGATION: an investigation initiated by Borrower of
the whereabouts of a Financed Vehicle or a Contract Debtor.
STATEMENT OF BORROWING BASE: a statement issued by Lender which
contains the amount of the Borrowing Base, the amount of the Loan or
Indebtedness, and either the amount available for Advances or the amount by
which the Loan or Indebtedness exceeds the Borrowing Base.
SUBORDINATED DEBT: a debt obligation of Borrower which is
subordinated to Lender pursuant to a subordination agreement which is in the
form of Exhibit 16 or pursuant to some other agreement approved in writing by
Lender.
SUPPLEMENTAL DOCUMENTS: all agreements, instruments, documents,
certificates of title, financing statements, notices of assignment, Lists of
Contracts, chattel mortgages, powers of attorney, subordination agreements, and
other written matter necessary or reasonably requested by Lender to perfect and
maintain perfected Lender's security interest in the Collateral or to consummate
the transactions contemplated by this Agreement.
THIRD PARTY SERVICER: any Person from whom Borrower has acquired a
Contract pursuant to an asset purchase agreement and who is servicing such
Contract on Borrower's behalf pursuant to the terms of a certain servicing
agreement and for whose performance Borrower is responsible as between Borrower
and such Person.
UCC: "UCC" means the Uniform Commercial Code as adopted in the
Commonwealth of Virginia, and all amendments thereto, provided that, if, by
reason of mandatory provisions of law, the validity or perfection of any
security interest granted herein is governed by the Uniform Commercial Code as
in effect in a jurisdiction other than Virginia then, as to the validity or
perfection of such security interest, "UCC" shall mean the Uniform Commercial
Code in effect in such other jurisdiction.
VSI INSURANCE: Insurance insuring Borrower against the theft, damage
or loss of a Financed Vehicle.
Section 16.1 OTHER TERMS: All other terms contained in this
Agreement shall, unless the context indicates otherwise, have the meanings
provided in the UCC to the extent the same are defined therein.
Section 16.2 ACCOUNTING TERMS. Any accounting terms used in this
Agreement which are not specifically defined shall have the meanings customarily
given them in accordance with GAAP.
ARTICLE XVII - GENERAL TERMS AND CONDITIONS
Section 17.0. APPLICABLE LAW. This Agreement shall be governed and
construed in accordance with the laws of the State of Virginia.
Section 17.1. NOTICES. Any notice, request, demand, instruction or
other communication to be given any party hereto in writing shall be effective
upon delivery during regular business hours at the offices of Borrower and
Lender hereinafter set forth or at such other offices that either party notifies
the other of in writing. The failure to deliver a copy as set forth below shall
not affect the validity of the notice to the Borrower or Lender. Such
communications shall be given by telecopy, commercial delivery service, or sent
by certified mail, postage prepaid and return receipt requested, as follows:
If to Borrower: The Finance Company
0000 Xxxxxxxxx Xxxx, Xxxxx 000X
Xxxxxxx, XX 00000
Electronic FAX: 000-000-0000
ATTN: CEO & CFO
If to Lender: General Electric Capital Corporation
0000 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Electronic FAX (000) 000-0000
Attention: Manager, Asset Based Financing
Section 17.2. HEADINGS. Paragraph headings have been inserted in
this Agreement as a matter of convenience for reference only. The paragraph
headings shall not be used in the interpretation of this Agreement.
Section 17.3. SEVERABILITY. If any one or more of the provisions of
this Agreement are held to be invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such provision
or provisions in every other respect and of the remaining provisions of this
Agreement shall not be in any way impaired.
Section 17.4. OFFSET. Lender has the right to offset, apply, or
recoup any obligation of Borrower to Lender, arising under the Loan Documents or
otherwise, against any obligations or payments Lender owes to Borrower, arising
under the Loan Documents or otherwise, or against any property of Borrower held
by Lender. Borrower waives any right to offset, apply, or recoup against any
obligation it owes to Lender. Lender is not obligated to collect any of the
Contracts or pursue any of the other Collateral or any of Lender's rights at any
time as a condition to payment and performance by Borrower.
Section 17.5. INDEPENDENT CONTRACTOR. Borrower is an independent
contractor in all matters relating to this Agreement and the Collateral and is
not an agent or representative of Lender. Borrower has no authority to act on
behalf of or bind Lender.
Section 17.6. EXPENSES. Each party shall bear the expenses of its
own performance of this Agreement.
Section 17.7. MODIFICATION OF LOAN DOCUMENTS; SALE OF INTEREST. This
Agreement or any Exhibit attached hereto may not be modified, altered or
amended, except by an agreement in writing signed by Borrower and Lender. The
rights of Lender granted in or referred to in this Agreement shall apply to any
modification of or supplement to the Loan Documents. Borrower may not without
Lender's prior written permission sell, assign or transfer any of the Loan
Documents, or any portion thereof, including, without limitation, Borrower's
rights, title, interests, remedies, powers and duties thereunder. Any sale,
assignment, or transfer by Borrower without Lender's permission shall be void ab
initio. Borrower hereby consents to Lender's participation, sale, assignment,
transfer or other disposition, at any time or times hereafter, of any of the
Loan Documents, or of any portion thereof, including, without limitation,
Lender's rights, title, interests, remedies, powers and duties thereunder. The
Loan Documents shall be binding upon and inure to the benefit of the permitted
successors and assigns of Borrower and Lender.
Section 17.8. ATTORNEYS' FEES AND LENDER'S EXPENSES. If, following
an Event of Default, Lender shall in good faith employ counsel for advice or
other representation or shall incur other costs and expenses in connection with
(A) any litigation, contest, dispute, suit, proceeding or action (whether
instituted by Lender, Borrower or any other Person) in any way relating to the
Collateral, any of the Loan Documents or any other agreements executed or
delivered in connection herewith, (B) any attempt to enforce, or enforcement of,
any rights of Lender against Borrower or any other Person, including, without
limitation, Contract Debtors, that may be obligated to Lender by virtue of any
of the Loan Documents, or (C) any actual or attempted inspection, audit,
monitoring, verification, protection, collection, sale, liquidation or other
disposition of the Collateral; then, in any such event, the reasonable
attorneys' fees arising from such services and all expenses, costs, charges and
other fees (including expert's fees) incurred by Lender in any way arising from
or relating to any of the events or actions described in this Section shall be
payable to Lender by Borrower on demand by Lender and until paid shall be part
of the Loan.
Section 17.9. WAIVER BY LENDER. Lender's failure, at any time or
times hereafter, to require strict performance by Borrower of any provision of
this Agreement or any of the other Loan Documents shall not waive, affect or
diminish any right of Lender thereafter to demand strict performance thereof.
Any suspension or waiver by Lender of an Event of Default by Borrower under the
Loan Documents shall not suspend, waive or affect any other Event of Default by
Borrower under the Loan Documents, whether the same is prior or subsequent
thereto and whether of the same or of a different type. None of the
undertakings, agreements, warranties, covenants and representations of Borrower
contained in the Loan Documents and no Event of Default by the Borrower under
the Loan Documents shall be deemed to have been suspended or waived by Lender
unless such suspension or waiver is by an instrument in writing signed by a
manager of Lender and identifies the matter waived or suspended. Any consent or
approval by Lender pursuant to this Agreement is not a waiver by Lender of, or
an admission by Lender of the truth of, any of Borrower's representations and
warranties in this Agreement.
Section 17.10. WAIVERS BY BORROWER. Except as otherwise provided for
in this Agreement, Borrower waives (i) notice and consummation of presentment,
demand, protest, dishonor, intent to accelerate and acceleration; (ii) all
rights to notice and a hearing prior to taking possession or control of, or
Lender's replevy, attachment or levy upon, the Collateral; (iii) any bond or
security in a judicial proceeding as a condition to Lender exercising any of
Lender's remedies; (iv) the benefit of all valuation, appraisement and exemption
laws, and (v) TRIAL BY JURY in any dispute with Lender arising out of or related
to any of the Loan Documents. The failure or delay of Borrower to strictly
enforce the terms of this Agreement shall not be a waiver of Borrower's right to
do so.
Section 17.11. COUNTERPARTS. This Agreement may be executed in two
or more counterparts, with the same effect as if all parties had signed the same
document. All such counterparts shall be deemed an original, shall be construed
together and shall constitute one and the same instrument.
Section 17.12. ENTIRE AGREEMENT. This Agreement contains the entire
agreement among the parties regarding the loan by Lender to Borrower based on
Contracts and supersedes all prior agreements, whether written or oral, with
respect thereto.
Section 17.13. STATEMENTS OF ACCOUNT. Each report, billing
statement, Statement of Borrowing Base, and payment transcript which is prepared
by Lender shall, except for manifest errors, be deemed final, binding and
conclusive upon Borrower in all respects as to all matters reflected therein,
and shall constitute an account stated between Borrower and Lender, unless
thereafter waived in writing by Lender or unless, within thirty (30) days after
Borrower's receipt of such document, Borrower delivers to Lender notice of a
written objection thereto specifying the claimed error. In the event of such an
error, only those items expressly objected to in such notice shall be deemed to
be disputed by Borrower and Lender's only liability to Borrower shall be to
issue a corrected document.
Section 17.14. PUBLICITY. Borrower shall not, without prior Lender
approval, (i) issue any press release or make any public announcement or
otherwise publicize the consummation of this Agreement with Lender, or (ii) make
a public disclosure of any kind regarding the subject matter hereof, or (iii)
make use of Lender's name, tradename, logo or trademark without the express
written consent of Lender, except that Borrower may publicly disclose
information relating to this Agreement if Borrower is releasing any disclosure
required by law or in connection with its registration of securities with the
U.S. Securities and Exchange Commission or any state securities commission, or
in connection with a filing pursuant to Borrower's listing with a national
securities exchange or governmental entity.
Section 17.15. CONTRACT DOCUMENTS. After Lender reviews a Contract
form or any other form used in connection with a Contract (collectively, the
"Form") Lender may inform Borrower that the Form may not comply with certain
laws or that the Form is not acceptable to Lender as an Eligible Contract form
unless certain changes are made. Borrower is responsible for its use of the
Forms and for any changes Borrower makes to the Forms in response to Lender's
comments. Lender shall have no liability to Borrower arising from Borrower's use
of, or changes to, any Form regardless of whether Lender approved the Form or
the changes or whether Lender conditioned the use of the Form as an Eligible
Contract form upon the changes being made. Regardless of Lender's approval of a
Form or Lender's comments regarding a Form, Borrower remains obligated to Lender
to conduct its business in a lawful manner, including the use of Forms which
comply with applicable laws.
Section 17.16. FAXED DOCUMENTS. In order to expedite the acceptance
and execution of this Agreement and any of the Supplemental Documents, each of
the parties hereto agrees that a faxed copy of any original executed document
shall have the same binding effect on the party so executing the faxed document
as an original handwritten executed copy thereof.
Section 17.17. INCORPORATION OF RECITALS. All recitals shall be
incorporated into and made a part of this Agreement.
Entered into as of: December ______, 1996
GENERAL
ELECTRIC CAPITAL
THE FINANCE COMPANY CORPORATION
By: __________________________ By:
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Its: __________________________ Its:
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