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Exhibit 10.3
PARTICIPATION AGREEMENT
THIS Participation Agreement is entered this 7 day of June , 1999, by and
between SOUTHEAST DEALER ACCEPTANCE, INC., a Florida corporation ("SDAI") and
Mr. C's AUTO SALES, INC., a Florida corporation ("Mr. C's").
WHEREAS, Mr. C's generates automobile loans from the sale of automobiles
to customers and desires to sell SDAI, and desires to purchase from Mr. C's, a
senior participation interest in certain of such loans, upon the terms and
conditions set forth below:
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants hereinafter set forth, and other consideration , the
receipt and sufficiency of which are hereby acknowledged, SDAI and Mr. C's,
intending to be legally bound, agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Certain Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"Applicable Rate" means, as to each Loan, a fixed interest rate equal to
seventeen percent (17%) per annum.
"Business Day" means a day on which banks are not required or authorized
to be closed in the city of New York, New York.
"Closing Participation Amount" means, with respect to any month, the
Participation Amount calculated as of the close of business on the last day of
such month.
"Delinquent Loan" means any Loan with respect to which (i) the Obligor
thereunder is more than 30 days delinquent as to scheduled monthly payments due
under the Loan, or (ii) a repossession proceeding has commenced. A Loan payment
shall not be considered delinquent if at least 95% of the proper payment amount
has been received.
"GAAP" means those generally accepted accounting principles used on a
basis consistent with those principles used in connection with the preparation
of the financial statements of Mr. C's attached hereto as Exhibit "C".
"Government Entity" means any court, administrative agency or commission
or other governmental authority or instrumentality, domestic or foreign.
"Lien" means any pledge, lien, judgement, security interest, claim
charge, assessment, restriction or encumbrance, whether consensual or by
operation of law.
"Loan Documents" means, with respect to any Loan, the Note and Security
Agreement relating thereto, and any amendments thereto.
"Loan File" means the credit and closing package, custodial documents,
servicing documents, Loan Documents and all other documents relating to a Loan
or necessary for prudent servicing.
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"Loans" means the indebtedness of an Obligor as evidenced by a Note and
Security Agreement for the loans is which SDAI has purchased a Senior
Participation pursuant to this Agreement.
"SDAI Return" means, with respect to any month, an amount equal to (i)
the Participation Amount on the last day of the preceding month multiplied by
the Applicable Rate plus (ii) the difference between the Opening Participation
Amount and the Closing Participation Amount.
"Note" means the original executed note or installment sales contract
evidencing the indebtedness of an Obligor under a Loan.
"Obligor" means each person who is now or hereafter liable for the full
or partial payment of any Loan, whether such obligation is direct, indirect,
primary, secondary, joint or several.
"Opening Participation Amount" means, with respect to any month, the
Participation Amount calculated as of the close of business on the last day of
the preceding month.
"Participation Amount" means, as of any given date, the total of the
Participation Amounts for each Loan. The Participation Amount for each Loan
means the product of the outstanding principal amount of the Loan on that date,
times the Participation Percentage applicable to that Loan.
"Participation Percentage" initially means sixty percent (60%). The
Participation Percentage may be changed from time to time by mutual consent of
SDAI and Mr. C's as to any Loans in which a Senior Participation is subsequently
sold pursuant to this Agreement.
"Person" means any individual, partnership, joint venture, corporation,
trust or unincorporated organization or a government or agency or political
subdivision thereof.
"Security Agreement" means the security agreement, retail installment
contract, UCC Financing Statement, certificate of title or other instrument
securing a Note and creating a lien and security interest in the Vehicle
described therein.
"Servicing Agreement" means that certain Servicing Agreement of even
date herewith between Mr. C's and SDAI for the servicing of the Loans.
"Tax" or "Taxes" means all income, gross receipts, sales, use,
employment, franchise, profits, personal property or other taxes, fees, stamp
taxes and duties, assessments or charges of any kind whatsoever (whether
payable directly or by withholding), together with any interest and any
penalties, additions to tax or additional amounts imposed by any taxing
authority with respect thereto.
"Vehicles" means those motor vehicles or other items of collateral
which secure a Loan pursuant to a Security Agreement.
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1.2. Terms Defined in Other Sections. The following terms are defined
in the following sections:
"Mr. C's Agreements" -- 6.2(a)
"Operating Account" -- 4.1
"Senior Participation" -- 2.1
ARTICLE II
PURCHASE AND SALE OF SENIOR PARTICIPATIONS
2.1. Purchase of Senior Participations. During the one-year period
beginning upon execution of this Agreement, Mr. C's will sell and SDAI will
purchase up to $500,000 of undivided preferred senior participation interests
equal to the Participation Percentage (a "Senior Participation") in Loans
submitted by Mr. C's to SDAI in accordance with this Agreement and subject to
the terms and conditions set forth in this Agreement. From time to time
thereafter, Mr. C's will sell and SDAI will purchase additional Senior
Participations in Loans submitted by Mr. C's to SDAI in accordance with this
Agreement and subject to the terms and conditions set forth in this Agreement.
This Agreement shall not obligate Mr. C's to offer a participation in any
specific Loans to SDAI, nor shall it obligate SDAI to purchase a Senior
Participation in any specific Loan offered by Mr. C's and it is understood and
agreed that SDAI's decision to accept or reject any offer by Mr. C's is in
SDAI's sole discretion. However, the terms of this Agreement shall govern the
purchase of Senior Participation in Loans when offered by Mr. C's and accepted
by SDAI.
2.2. Loan Requirements. In order to be eligible for purchase of a
Senior Participation by SDAI, each Loan shall be (a) in compliance with the
Underwriting Criteria approved from time to time by SDAI and set forth in a
written schedule, and (b) written on a retail installment contract form
customarily used in the industry and subject to the reasonable approval of
SDAI. The initial Underwriting Criteria shall be as set forth in Exhibit "A"
attached hereto.
2.3 Documents to be Delivered. Upon acceptance by SDAI of an offer by
Mr. C's for purchase of a Senior Participation, Mr. C's shall endorse each
Loan Document to SDAI and deliver to SDAI (a) Senior Participation Certificate,
in form and content reasonably satisfactory to SDAI, conveying to SDAI the
Senior Participation, free and clear of all Liens or defects in title of any
kind, (b) each of the Loan Documents and (c) each of the documents set forth in
Exhibit "B" attached hereto.
2.4 Purchase Price and Payment. As consideration for each Senior
Participation, SDAI shall, subject to and upon the terms and conditions set
forth herein, pay to Mr. C's, by wire transfer, an amount equal to the
outstanding principal amount of the Loan, multiplied by the Participation
Percentage, less a purchase fee in the amount of $50.00 per Loan. The purchase
price shall be paid in accordance with a written funding schedule mutually
agreed upon and after (a) SDAI has received and approved the documents
specified in Section 2.3, above, and (b) Mr. C's has complied with the
covenants set forth in Section 11.2 hereof.
2.5. Repurchase. Mr. C's may, at its sole and absolute discretion,
repurchase the Loans by tendering to SDAI an amount equal to the total
Participation Amount for all Loans plus any accrued and unpaid interest thereon.
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2.6 Satisfaction. At such time as Mr. C's shall repurchase the Loans,
or otherwise pay and satisfy the full Participation Amount in any given Loan,
SDAI, shall execute and deliver such documents as shall be legally required to
release its lien upon Vehicles encumbered by such Loan or Loans.
ARTICLE III
SERVICING AND DELINQUENCIES
3.1 Servicing of Loans by Mr. C's. Subject to the terms of Section
3.3 hereof, Mr. C's shall be solely responsible for servicing the Loans in
accordance with the terms of the Servicing Agreement, including repossession
and disposition of a Vehicle when appropriate.
3.2 Repurchase of Delinquent Loans. Mr. C's agrees to repurchase
SDAI's Senior Participation in any Loan within seven (7) days of the date the
Loan becomes a Delinquent Loan for a repurchase price equal to the
Participation Amount for that Loan, plus interest at the Applicable Rate from
the last day of the preceding month through the date of repurchase.
3.3 Right to Perform Obligations of Mr. C's. If Mr. C's (i)
dissolves, liquidates, merges, consolidates or otherwise reorganizes without
the prior written consent of SDAI, (ii) has rendered against it any judgment
which is not discharged within 90 days of filing, or (iii) upon written notice
from SDAI and a failure to cure within 5 Business Days of the date of such
notice, (A) fails to comply with or perform any of its representations,
warranties or covenants under this Agreement or the Servicing Agreement, (B)
has a receiver appointed for it or any of its assets, (C) has filed by
or against it a petition in bankruptcy or for reorganization, (D) is generally
unable to pay its debts as they come due, or (E) is in default on any contract
which obligates Mr. C's to make aggregate payments in excess of $100,000, then
SDAI may, but shall not be obligated to, perform Mr. C's 's obligations under
this Agreement and terminate the Servicing Agreement. SDAI shall be reimbursed
on demand from the Operating Account for its reasonable costs and expenses
incurred in performing Mr. C's 's obligations under this Agreement (including
its reasonable costs and expenses in enforcing its rights hereunder) and Mr. C's
shall have no further rights under this Agreement other than the right to
receive distributions for any remaining cash balance as referenced in Section
4.2(c). If the Operating Account is insufficient to pay such costs and expenses,
Mr. C's shall pay such amounts to SDAI on demand.
ARTICLE IV
DISTRIBUTIONS
4.1 Operating Account. Mr. C's has established a segregated account
at SunTrust Bank, Account # ____________ (the "Operating Account") into which
will be deposited, promptly upon receipt, all cash processed by Mr. C's
pertaining to the Loans. The Operating Account shall be maintained for the
benefit, and in the name, of both Mr. C's and SDAI but shall be under the sole
control of Mr. C's. The Operating Account shall be collaterally pledged to SDAI
pursuant to Section 11.2. All distributions shall be made in accordance with
Section 4.2. If SDAI terminates the Servicing Agreement in accordance with
Section 3.3, then (i) an accounting of the Operating Account and all funds on
deposit in that Account shall be prepared by Mr. C's and delivered to SDAI, and
SDAI shall have the right to have the Operating Account audited, and (ii) the
Operating Account shall be closed and replaced with an Operating Account at a
bank of SDAI's choice, maintained by SDAI for the benefit, and in the name, of
both Mr. C's and SDAI, but under the sole control of SDAI.
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4.2 Distributions from Operating Account. At the earlier of the date
of each settlement or the end of each week, all cash in the Operating Account
shall be distributed or paid as follows:
(a) first, to SDAI, the SDAI Return for the immediately preceding
month:
(b) second, to SDAI, any amounts payable, directly or indirectly, by
or on behalf of SDAI in connection with any assumption and performance of Mr.
C's obligations pursuant to Section 3.3;
(c) third, to Mr. C's, the remaining cash balance, if any, in the
Operating Account, including all payments and reimbursements due under the
Servicing Agreement.
ARTICLE V
STATEMENTS
5.1 Statements Prepared by Mr. C's. Within 15 days after the end of
each month, Mr. C's shall prepare and deliver to SDAI a report consisting of
the following statements (the "Statements") with respect to the immediately
preceding month: (i) Opening Participation Amount; (ii) Closing Participation
Amount; and (iii) identity of and aggregate payments due under each Loan which
is more than 30 days past due. In addition, Mr. C's shall provide to SDAI such
other information as SDAI may reasonably request from time to time.
5.2 Disputes. No error in any statements shall serve to the benefit of
either party. If a dispute occurs with respect to any statement, Mr. C's and
SDAI shall attempt to reconcile their differences and any resolution by them as
to any disputed Statement shall be final, binding and conclusive on Mr. C's and
SDAI and shall have the legal effect of a binding arbitration award. If Mr. C's
and SDAI are unable to reach a resolution with such effect within ten Business
Days after delivery of the notice of dispute, Mr. C's and SDAI shall submit the
items remaining in dispute to arbitration in accordance with Section 11.1 of
this Agreement.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF Mr. C's
Mr. C's represents, warrants and agrees as follows:
6.1 Organization, Power and Authority. Mr. C's is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida and has all necessary corporate power and authority to enter into and
perform all of its obligations under this Agreement and to consummate the
transactions contemplated hereby and thereby. Mr. C's is legally qualified to
transact business as a foreign corporation in each of the jurisdictions in
which its business or property is such as to require that it be thus qualified,
and it is in good standing in each of the jurisdictions in which it is so
qualified. Mr. C's principal place of business is in Coral Springs, Florida.
6.2 Power, Authority and Capacity; Enforceability; No Conflicts.
(a) Mr. C's has full power, authority and capacity to enter into this
Agreement, the Servicing Agreement and all documents contemplated or requested
by any of these agreements (collectively the "Mr. C's Agreement") and to carry
out its obligations hereunder and thereunder, and will provide evidence of the
same to SDAI on demand. The Mr. C's Agreements have been duly executed and
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delivered by Mr. C's and are the valid and binding obligations of Mr. C's,
enforceable against it in accordance with their respective terms. The
execution, delivery and performance of the Mr. C's Agreements and the
consummation of the transactions contemplated thereby have been duly authorized
by all necessary corporate action on the part of Mr. C's.
(b) To the best of its knowledge, neither the execution and delivery
of the Mr. C's Agreements, nor the performance of Mr. C's of its obligations
under the Mr. C's Agreements, nor the consummation of the transactions
contemplated thereby, will (i) conflict with any provision of the certificate of
incorporation of by-laws of Mr. C's: (ii) conflict with, result in a breach of
or constitute a default (or an event in which would, with the passage of time
or the giving of notice or both, constitute a default) under, or give rise to a
right to terminate, amend, modify, abandon or accelerate, any contract,
agreement, promissory note, lease, indenture, instrument or license to which
Mr. C's is a party or by which Mr. C's assets or properties may be bound or
affected; (iii) violate or conflict with any federal, state or local law,
statute, ordinance, rule, regulation, order, judgment, decree or arbitration
award which is either applicable to, binding upon or enforceable against Mr.
C's; (iv) result in or require the creation or imposition of any Liens upon or
with respect to any assets of Mr. C's or the Loans, other than Liens in favor
of SDAI; (v) violate any legally protected right arising in the operation of
Mr. C's business of any individual or entity or give to any individual or
entity a right or claim against SDAI or the Loans; or (vi) require the consent,
approval, order or authorization of, or the registration, declaration or filing
with any Government Entity.
6.3 Financial Statements. The financial statements attached hereto as
Exhibit "C" present fairly the financial condition of Mr. C's at the date
indicated therein and the results of operations for Mr. C's for the periods
indicated therein, all of which are in conformity with GAAP and are accurate
and complete in all material respects. The books and records of Mr. C's
properly and accurately reflect all of its transactions, properties, assets and
liabilities. Mr. C's shall provide financial statements to SDAI annually.
6.4 Taxes. Mr. C's has duly filed, or has received an extension of time
for such filing in accordance with applicable law, all federal, state, local and
foreign Tax returns and reports required to be filed by it, all such returns and
reports were true and correct in all material respects as of the date on which
they were filed, none of such returns and reports has been amended, and all
Taxes arising under such returns and reports have been fully paid or are fully
accrued as liabilities on Mr. C's books and records and will be timely paid.
There have been no audits of federal, state, local and foreign Tax returns of
Mr. C's performed by federal, state, local or foreign taxing authorities within
the last 10 years or otherwise with respect to any Tax year for which assessment
is not barred by the applicable statute of limitations. No waivers of any
applicable statutes of limitations are outstanding. There is no pending, or to
the knowledge of Mr. C's, threatened federal, state, local or foreign tax audit
of Mr. C's and no agreement with any federal, state, local or foreign tax
authority that may affect Mr. C's respective subsequent Tax liabilities.
6.5 Contracts. Mr. C's is not in default or breach under any contract,
agreement or commitment to which Mr. C's is a party or is bound and, to Mr. C's
knowledge, there is no breach or anticipated breach of any such contract,
agreement or commitment by any other party to such contract, agreement or
commitment. All of such contracts, agreements and commitments are valid, binding
and enforceable and in full force and effect in accordance with their respective
terms.
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6.6. Litigation. Except as set forth in Exhibit "D", to the best of
Mr. C's knowledge, there are no actions, suits, claims, governmental
investigations or arbitration proceedings pending or, to Mr. C's knowledge,
threatened against or substantially affecting the Loans or substantially
affecting the assets or liabilities of Mr. C's, or which question the validity
or enforceability of the Mr. C's Agreements or the Loans or any action
contemplated herein. For purposes of this provision, the term "substantially
affecting" shall mean any claim seeking damages of $10,000 or more or any
circuit court lawsuit filed against Mr. C's or any guarantor hereunder. There
are no outstanding orders, decrees, or stipulations issued by any Government
Entity in any proceeding to which Mr. C's is or was a party or, to Mr. C's
knowledge, which affect the Loans or the Mr. C's Agreements.
6.7. Compliance with Laws; Permits. To the best of its knowledge,
after diligent inquiry, Mr. C's is not in violation of any statutes, laws,
ordinances, rules or regulations, or any judgment, order or decree (federal,
state or local) of any Government Entity and posses all approvals, licenses,
permits, franchises or other authorizations of any Government Entity
(collectively, "Permits") necessary to the performance of its obligations under
the Mr. C's Agreements, the ownership, operation or disposition of its
properties or the conduct of its business. All such Permits are valid and in
full force and effect, Mr. C's is in compliance with their respective
requirements and no proceeding is pending or, to Mr. C's knowledge, threatened
to revoke or amend any of them. None of such Permits is or will be impaired or
in any way affected by the execution and delivery of the Mr. C's Agreements and
the transactions contemplated thereby.
6.8. Brokers. No broker, finder or investment banker will be entitled
to any brokerage, finder's or other fee or commission from Mr. C's in connection
with the transactions contemplated by this Agreement. Mr. C's shall indemnify,
defend and hold SDAI harmless from any claim of any broker based upon any
alleged arrangement with Mr. C's.
6.9. Title.
(a) There are no gaps in the chain of title for the Notes and Security
Agreements.
(b) Upon endorsement and delivery of the Notes to SDAI, the assignment
of the Security Agreements to SDAI, and the assignment to SDAI of the related
liens on the Vehicles, SDAI will hold legal title to the Notes and Security
Agreements free and clear of all liens or defects in title of any kind, which
will be sufficient to permit SDAI and its successors and assigns to avail itself
of all protection available under applicable law against the claim of any
present or future creditors of Mr. C's, and will be sufficient to prevent any
other sale, transfer, assignment, pledge or hypothecation of the Notes by Mr.
C's from being enforceable.
(c) Upon the sale of the Senior Participation to SDAI pursuant to this
Agreement, SDAI will own good and marketable title to the Senior Participation,
free and clear of all Liens or defects in title of any kind.
(d) Upon purchase of each Senior Participation, Mr. C's will provide to
SDAI a lien guarantee as to the related Vehicle. Within 20 days of the date of
purchase, Mr. C's will provide to SDAI a copy of the Vehicle registration
showing a first lien in favor of SDAI or its designee. Within 40 days of the
date of purchase, Mr. C's will provide to SDAI the original Certificate of Title
to the vehicle.
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6.10. Security Interest. Each purchase of a Senior Participation
pursuant to this Agreement and the documents executed in connection therewith
(i) creates a valid first priority ownership and first priority security
interest for the benefit of SDAI in all of the Loans, Loan Files and Loan
Documents, (ii) effects the assignment to SDAI of a first priority security
interest in each Vehicle, and (iii) creates and ownership and security
interest in the Vehicles and Operating Account securing SDAI's rights and
benefits hereunder and under the MR. C's Agreements. All instruments and
documents necessary or desirable to perfect and protect such ownership and
security interest in the Loans, Loan Files, Loan Documents, Vehicles and
Operating Accounting have been duly executed and delivered by Mr. C's. All
filings and other actions necessary or desirable to perfect and protect such
ownership and security interests in the Loans, Loan Files, Loan Documents,
Vehicles, and Operating Account shall be taken by Mr. C's immediately following
purchase of the Senior Participation by SDAI.
6.11. Loans.
(a) Mr. C's has generated the Notes and Security Agreements through
the sale of vehicles and holds legal title thereto free and clear of all liens
or defects of any kind. Except as otherwise provided in this Agreement, Mr. C's
has not sold, assigned, transferred, pledged or hypothecated any interest in
any Loan, Loan File or Loan Document to any person. None of the loans is a
Delinquent Loan.
(b) Mr. C's represents and warrants that (i) each Note and Security
Agreement is a genuine, legally valid, binding and enforceable document
according to its terms, and conforms to all applicable laws and regulations,
(ii) each Security Agreement grants to the holder thereof and its successors
and assigns a valid, binding, enforceable and perfected first priority lien and
security interest on the Vehicle purported to be covered thereby, recorded
among the appropriate records of the appropriate jurisdiction, and no portion
of such security has been released (iii) the terms of each Note and Security
Agreement have not been modified or canceled and no party thereto has been
released in whole or in part and not part of the property subject to the
Security Agreement has been released, (iv) no Note or Security Agreement has
been subordinated in whole or in part, (v) there is in force for each Loan a
liability insurance policy issued by reputable, financially solvent insurer
providing adequate coverage with respect to each Vehicle that is the subject of
a Loan, in an amount equal to the required by the Note and/or Security
Agreement relating to such Loan, or otherwise by applicable law, (vi) each Loan
meets or is exempt from applicable federal and state laws, regulations and
other requirements pertaining to usury and each Loan is not usurious, (vii)
each Loan has been originated, underwritten and serviced in compliance with all
applicable laws and regulations and (viii) there is no material defect in the
title to any Vehicle security any Note or to which any Security Agreement
relates.
6.12. Limitation on Warranties. If any of the representations and
warranties contained in Sections 6.9, 6.10 or 6.11 shall prove to be materially
incorrect with regard to any Loan, SDAI may give notice to Mr. C's identifying
the defective Loan, along with appropriate documentation or other proof of the
defect in the Loan. For purposes of this provision, the term "materially
incorrect" is defined as any circumstance with Mr. C's is unable to cure within
thirty (30) days. If the Loan is in fact defective and if Mr. C's is unable to
cure or correct the defect in the Loan with reasonable time (not to exceed 30
days) and to SDAI's reasonable satisfaction, Mr. C's shall immediately
repurchase SDAI's Senior Participation in the defective Loan for the then
Participation Amount for that Loan, plus interest at the Applicable Rate for
the last day of the preceding month through the date of repurchase. SDAI shall
not be entitled to any other remedy due to any inaccuracy of any one or more of
the representations and warranties.
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ARTICLE VII
REPRESENTATION AND WARRANTIES OF SDAI
SDAI represents, warrants and agrees as follows:
7.1 Organization and Authority of SDAI. SDAI is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida and has all necessary corporate power and authority to enter into and
perform all of its obligations under this Agreement and to consummate the
transactions contemplated hereby and thereby.
7.2 Power, Authority and Capacity of SDAI; Enforceability; No
Conflicts.
(a) SDAI has full power and capacity to enter into this Agreement and
to carry out its obligations hereunder. This Agreement has been duly executed
and delivered by SDAI and is a valid and binding obligation of SDAI, enforceable
against it in accordance with its terms. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of SDAI.
(b) To the best of its knowledge neither the execution nor delivery of
this Agreement nor the performance by SDAI of its other obligations under this
Agreement, nor the consummation of the transactions contemplated hereby will,
(i) conflict with any provision of the certificate of incorporation or bylaws of
SDAI, (ii) result in a breach of, or constitute a default (or an event, which
would, with the passage of time or the giving of notice or both, constitute a
default) under, or give rise to a right to terminate, amend, modify, abandon,
accelerate, any material contract, agreement, lease, indenture, instrument or
license to which SDAI is a party or by which SDAI's assets or properties may be
bound or affected; (iii) violate or conflict with any federal, state, or local
law, statute, ordinance, rule, regulation, order, judgement, decree, or
arbitration award which is either applicable to, binding upon or enforceable
against SDAI; (iv) result in or require the creation or imposition of Liens upon
or with respect to any assets of SDAI or the Loans; (v) violate any legally
protected right arising in the operation of SDAI's business of any individual or
entity or give to any individual or entity a right or claim against Mr. C's or
the Loans; or (vi) require the consent, approval or other authorization of, or
the registration, declaration or filing with any Government Entity.
7.3 Brokers. No broker, finder or investment banker will be entitled
to any brokerage, finder's or other fee or commission from SDAI in connection
with the transactions contemplated by this Agreement. SDAI shall indemnify,
defend and hold Mr. C's harmless from any claims of any broker based upon any
alleged arrangement with SDAI.
ARTICLE VIII
FURTHER COVENANTS OF Mr. C's
8.1 Books and Records. Mr. C's shall maintain proper records and books
of accounts in which full, true and correct entries in conformity with GAAP
shall be made of all dealings and transactions related to the Loans. During the
period of this Agreement, Mr. C's shall give SDAI and its authorized
representatives reasonable access to all books and records of Mr. C's relative
to the loans upon reasonable advance notice, and permit SDAI to make such
inspection and copies thereof as SDAI may reasonably request during normal
business hours, provided, however, that such investigation or inspection shall
be conducted in such a manner as to not interfere unreasonably with Mr. C's
business.
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8.2 Maintenance of Ownership and Security Interests. Mr. C's shall at
all times maintain the ownership and security interest provided for SDAI in
this Agreement as a valid and perfected ownership and security interest in all
of the Loans, Loan Files, Loan Departments, Vehicles and Operating Account.
8.3 Notices. Mr. C's shall promptly notify SDAI of any of the
following:
(a) any change in Mr. C's name, principal place of business, or senior
management;
(b) the termination or modification of insurance coverage on any
Vehicle; and
(c) any condition, event or act which comes to Mr. C's attention that
would or might materially affect repayment of any Loan or prejudice SDAI's
rights under this Agreement.
ARTICLE IX
CONDITIONS TO OBLIGATIONS
9.1 Conditions to Obligation of SDAI. The obligation of SDAI to close
any purchase of a Senior Participation as to which it has accepted an offer
hereunder shall be subject to the fulfillment of each of the following
conditions:
(a) The representations and warranties of Mr. C's contained in this
Agreement shall be true, complete and correct, and all the covenants and other
obligations contained in this Agreement to be performed or complied with by Mr.
C's prior to any such purchase shall have been complied with in all material
aspects.
(b) No temporary, preliminary or permanent injunction or other order,
stay, judgment, decree or ruling of any Government entity shall be in effect
which would make the purchase of a Senior Participation illegal or would
otherwise prevent the closing of such a purchase.
ARTICLE X
INDEMNIFICATION
10.1 Indemnification by Mr. C's. Mr. C's shall indemnify SDAI and its
directors, stockholders, officers, employees and agents (an "Indemnified
Party") against and defend and hold them harmless from any expenses, losses,
costs, deficiencies, liabilities, claims, damages, awards or judgments
(including legal fees and expenses) ("Indemnification Damages") suffered or
incurred by any such Indemnified Party to the extent arising from the ownership
of the Loans or any interest therein, including, without limitation (i) any
breach of any representation, warranty, covenant or agreement of Mr. C's
contained in the Mr. C's Agreements, (ii) suits by an Obligor claiming
incorrect calculations of payments by Mr. C's due under the Notes, (iii) claims
for breach of warranty in connection with a sale or transfer of any Vehicles by
or on behalf of Mr. C's, (iv) any obligation or liability arising from an
ownership interest in the Vehicles, (v) any acts of negligence, gross
negligence, theft or fraud or other willful misconduct by Mr. C's, or employees
or subsidiaries thereof, and (vi) any liability arising from a repossession of
a Vehicle, including any litigation, cross claims or defenses by an Obligor
under a loan that has been terminated or otherwise accelerated.
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10.2 Right of Setoff. SDAI may immediately set off against the
Operating Account any Indemnifiable damages which it is entitled to recover
under this Article. SDAI shall give notice to Mr. C's of SDAI claim for
Indemnifiable Damages. If, prior to the expiration of 10 Business Days from the
date of such notice, Mr. C's shall notify SDAI of an intention to dispute the
claim and if such dispute is not resolved within 30 days after expiration of
such period, then such dispute shall be resolved by arbitration in accordance
with Section 11.1 of this Agreement. If Mr. C's prevails in arbitration, SDAI
shall immediately reimburse the Operating Account to the extent of the previous
setoff.
10.3 Third Party Claims
(a) For an Indemnified Party to be entitled to indemnification under
this Article in respect of, arising out of or involving a claim or demand made
by, any Person against the Indemnified Party (a "Third Party Claim"), such
Indemnified Party must notify Mr. C's in writing of the Third Party claim within
10 Business Days after receipt by such indemnified Party of notice of the Third
Party Claim; provided, however, that failure to give such notification shall not
affect the indemnification provided hereunder except (i) to the extent Mr. C's
shall have been actually prejudiced as a result of such failure and (ii) that
Mr. C's shall not be liable for any out of pocket expenses incurred by the
Indemnified Party during the period in which the Indemnified Party failed to
give such notice. Thereafter, the Indemnified Party shall deliver to Mr. C's,
within 5 Business Days after the Indemnified Party's receipt thereof, copies of
all notices and documents (including court papers) received by the Indemnified
Party relating to the Third Party Claim.
(b) If a Third Party Claim is made against any Indemnified Party, Mr.
C's shall assume the defense thereof with counsel selected by Mr. C's and
reasonably acceptable to SDAI. If Mr. C's assumes such defense, the Indemnified
Party shall have the right to participate in the defense thereof and to employ
counsel, at its own expense, separate from the counsel employed by Mr. C's.
Notwithstanding the foregoing, SDAI shall have the right to employ counsel at
Mr. C's expense if the interest of Mr. C's and SDAI conflict in any material
respect as to such Third Party Claim. If Mr. C's fails to assume the defense of
any Third Party Claim, the Indemnified Party may, if it so chooses, assume the
defense thereof with counsel selected by the Indemnified Party. If the
Indemnified Party elects to assume the defense of the Third Party Claim, Mr. C's
(i) shall be liable for the reasonable fees and expenses of counsel employed by
the Indemnified Party and (ii) shall be entitled to participate in (but not
control) the defense thereof and to employ counsel, at its own expense, separate
from the counsel employed by the Indemnified Party. Regardless of which party
defends or prosecutes any Third Party Claim, all the parties hereto shall retain
and provide to the other, as required, records and information which are
reasonably relevant to such Third Party Claim, and make employees available on a
mutually convenient basis to provide additional information and explanation of
any material provided hereunder.
(c) Whether or not the Indemnified Party shall have assumed the
defense of a Third Party Claim, the Indemnified Party shall not admit any
liability with respect to, or settle, compromise or discharge, such Third Party
Claims without Mr. C's prior written consent, which consent shall not be
unreasonably withheld.
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ARTICLE XI
MISCELLANEOUS
11.1 Arbitration. Any controversy or claim between SDAI and Mr. C's
arising out of or relating to this Agreement, this acquisition or ownership of
the loans, or the parties' dealing with each other shall be settled by binding
arbitration in Broward County, Florida, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and judgment upon the
award rendered by the arbitration may be entered in any court having
jurisdiction thereof. The arbitration shall be conducted before and by a single
arbitrator selected by the parties. If the parties have not selected an
arbitrator within 10 days of written demand for arbitration by either party, the
arbitrator shall be selected by the American Arbitration Association pursuant to
the then current rules of that Association. The expenses shall be divided
equally between the parties but shall ultimately be subject to award to the
prevailing party. The duty to arbitrate shall survive the cancellation or
termination of this Agreement.
11.2 Security Interest of SDAI
(a) In order to secure SDAI's right under this agreement, including the
SDAI Return and SDAI's right to indemnification hereunder, Mr. C's hereby grants
to SDAI a security interest in all of the Loans, Loan Files, Loan Documents,
Operating Account and products and proceeds of the above including the Vehicles.
(b) At or prior to funding of a purchase price, Mr. C's shall execute
and deliver to SDAI all instruments and documents necessary to perfect a first
priority security interest in the Loans, Loan Files, Loan Documents, Operation
Account and products and proceed of the above in favor of SDAI. Mr. C's shall
endorse each Note "payable to the order of SDAI" and deliver the Loan documents
to SDAI with the Senior Participation Certificate. Such Loan Documents will
maintain in the possession of SDAI for the benefit of Mr. C's and SDAI, subject
to SDAI's security interest therein.
(c) Simultaneously with funding of a purchase price, Mr. C's shall
assign to SDAI its lien and security interest in each vehicle, such assignment
to be in form suitable for recordation in the jurisdiction in which the Vehicle
is titled. Mr. C's shall bear all expenses in connection with the preparation
and recording of the assignment.
(d) Immediately following the purchase of a Senior Participation, Mr.
C's shall take all actions necessary to continue a perfected lien and security
interest in the Vehicles in favor of SDAI, including the assignment of the
Security Agreement relating to each vehicle, and otherwise take all actions
necessary to maintain such Security Agreement as a lien and security interest
upon such vehicle.
(e) Mr. C's shall deliver to SDAI evidence, in form reasonably
satisfactory to SDAI, of its compliance with Sections 11.2 (c) and (d),
including file-stamped copies of all statements and notices referred to in
Section 11.2(d).
(f) Mr. C's shall pay the costs and expenses relating to the actions
described in Sections 11.2(b), (c), (d), (e) and (f) including the costs of
filing any financing or security interest filing statements as well as any
recordation or transfer fees or taxes required by law to be paid in connection
with the filing or recording of any such statement. Such costs and expenses
shall not be chargeable to the Operating Account.
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11.3. Cooperation. At any time and from time to time after the date of
this Agreement, either party shall, at the request of the other party, execute
and deliver any instruments or documents, including Uniform Commercial Code
financing statements in favor of SDAI, assignments of sale and other documents
reflecting SDAI's ownership interest in the Loans, and take all such further
actions as required by the state of Florida Department of Banking and Finance
and as such party reasonably may request in order to consummate and make
effective the transactions contemplated hereby. The Senior Participation shall
be evidenced by such instruments and filings as SDAI shall reasonably require in
its sole discretion.
11.4. Expenses. Except as otherwise provided in this Agreement, all
costs and expenses, including fees and disbursements of counsel, financial
advisors and accountants, incurred in connection with this agreement and the
transactions contemplated hereby shall be paid by the party incurring such costs
and expenses.
11.5. Relationship of Parties. This Agreement constitutes a sale of
Senior Participations and the grant of an ownership and security interest in the
Loans, Loan Files, Loan Documents and Security Agreements, and shall in no way
be construed as creating a partnership, joint venture or any other relationship.
11.6. Notices. All notices, consents, approvals and other
communications given or made hereunder shall be in writing and shall be
delivered (i) personally, (ii) by overnight courier, (iii) by telecopier or (iv)
by registered or certified mail, as follows (or at such other address as shall
be specified by like notice):
If to SDAI: SOUTHEAST DEALER ACCEPTANCE CORPORATION
0000 Xxxx Xxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone.: (000) 000-0000
Facsimile: (000) 000-0000
If to Mr. C's: MR. C'S AUTO SALES, INC.
Attention: Xxxx Xxxx-Xxxxx
0000 Xxxxxxxxxx Xx. #000
Xxxxx Xxxxxxx, XX 00000
All such notices, consents, approvals and other communication shall be
deemed to have been given of (i) the date of receipt if delivered personally or
by overnight courier, (ii) the date of transmission if with continuation answer
back if transmitted by telecopier or (iii) the third day following posting if
transmitted by mail.
11.7. Interpretation. The terms defined in this Agreement include the
plural as well as the singular. When a reference is made in this Agreement to an
Article, Section, Schedule of Exhibit, such reference shall be to an Article,
Section, Schedule of Exhibit of this agreement unless otherwise indicated. The
headings contained herein are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. Whenever the words
"include", "includes" or "including" are used in this agreement, they shall be
deemed to be followed by the word "without limitation." Time shall be of the
essence in this Agreement.
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11.8. Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the greatest extent possible.
11.9. Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, among the parties hereto with respect to the subject matter hereof.
This Agreement may not be amended, changed, waived or modified except by a
writing executed by both parties.
11.10. Assignment. Neither this Agreement nor any of the rights,
interests or obligations of Mr. C's hereunder shall be assigned by Mr. C's
without the prior written consent of SDAI.
11.11. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
11.12. No Third Party Beneficiaries. This Agreement shall inure to the
benefit of, and be enforceable by, SDAI and Mr. C's and their respective
successors and permitted assigns, and nothing herein expressed or implied shall
be construed to give any other Person any legal or equitable rights hereunder.
11.13. Indemnifications. All of the indemnifications given or agreed
to from or by one party to the other in this Agreement shall survive the
termination of this Agreement as to any indemnifiable action committed by an
indemnifying party prior to such termination.
11.14. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
11.15. Facsimile Signature. This Agreement may be executed and
accepted by facsimile signature and any such signature shall be of the same
force and effect as an original signature.
11.16. Prevailing Party. In the event of any litigation or
arbitration arising from or related to this Agreement, the prevailing party
shall be entitled to recover legal fees and costs of such proceeding.
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11.17. Right to Receiver/Injunction Relief. The rights of SDAI to
assume servicing upon the occurrence of the events set forth in Article III are
unique and fundamental to preservation and protection of the collateral. Mr. C's
agrees shall that its failure to comply with the transfer requirements is likely
to create irreparable harm to SDAI for which it has no remedy at law. To that
end, SDAI has the right to seek and obtain mandatory injunctive relief and for
the appointment of a receiver from a court of competent jurisdiction to enforce
the transfer of the servicing and operating account and the arbitration
provisions shall not be applicable to such action.
IN WITNESS WHEREOF, SDAI and Mr. C's have caused this Agreement to be
signed, as of the date first written above, by their respective officers
thereunto duly authorized.
Mr. C's AUTO SALES, INC.
By: /s/ XXXX XXXXX
---------------------
Name: Xxxx Xxxxx
-------------------
Title: President
------------------
SOUTHEAST DEALER ACCEPTANCE, INC.
By: /s/ XXXXXXX XXXXXXXX
---------------------
Name: Xxxxxxx Xxxxxxxx
-------------------
Title: President
------------------
Exhibit "A" - Underwriting Criteria
Exhibit "B" - Documents to be Delivered
Exhibit "C" - Financial Statements of Mr. C's
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