1
EXHIBIT 10.1
AGREEMENT TO TRANSFER COLLATERAL AND RESTRUCTURE LOAN
This AGREEMENT TO TRANSFER COLLATERAL AND RESTRUCTURE LOAN
("Agreement") is made effective as of the 27th day of February, 1998, by and
among Hibernia National Bank, a national banking association ("Lender"), Search
Funding II, Inc., a Texas corporation ("Original Borrower"), Search Financial
Services Inc., a Delaware corporation ("Guarantor"), and each of the following
corporations (collectively, the "Additional Borrowers"):
Search Financial Services Holding Company, a Texas corporation;
Search Financial Services of Florida, Inc., a Texas corporation;
Search Financial Services of Georgia, Inc., a Texas corporation;
Search Financial Services of Louisiana, Inc., a Louisiana corporation;
Search Financial Services of Oklahoma, Inc., a Texas corporation;
Search Financial Services of Puerto Rico, Inc., a Puerto Rico
corporation;
Search Financial Services of Tennessee, Inc., a Texas corporation; and
Search Financial Services of Texas, Inc., a Texas corporation.
Lender, Original Borrower, Guarantor and Additional Borrowers are hereinafter
sometimes referred to collectively as the "Parties" and individually as a
"Party".
R E C I T A L S:
A. Pursuant to that certain Loan Agreement dated September 11,
1996 between Lender and Original Borrower (the "Original Loan Agreement"),
Lender established a $25,000,000 line of credit for Original Borrower secured
by chattel paper and certain other assets owned by Original Borrower. Original
Borrower's obligations under the Original Loan Agreement were guaranteed by
Guarantor.
B. Pursuant to the request of Original Borrower, Guarantor and
the Additional Borrowers, the Original Loan Agreement was replaced by a Loan
Agreement dated October 6, 1997 among Lender, Original Borrower and Additional
Borrowers (the "Loan Agreement") which provided for a $25,000,000 line of
credit in favor of Original Borrower and Additional Borrowers (collectively,
the "Borrowers"). All capitalized terms not otherwise defined herein shall
have the respective meanings ascribed to them in the Loan Agreement.
C. Borrowers' obligations under the Line of Credit are evidenced
by that certain Promissory Note dated October 6, 1997 executed by Borrowers and
payable to the order of Lender in the principal amount of $25,000,000 (the
"Note"). Payment and performance of Borrowers' obligations under the Line of
Credit have been unconditionally guaranteed by Guarantor pursuant to that
certain Commercial Guaranty dated October 6, 1997 executed by Guarantor (the
"Guaranty").
D. Borrowers' obligations under the Line of Credit are secured by
(i) the Non-Prime Auto Paper and other collateral in which Original Borrower
granted Lender a perfected first priority
2
security interest pursuant to that certain Commercial Security Agreement dated
October 6, 1997 (the "Original Borrower's Security Agreement") and (ii) the
Consumer Paper and other collateral in which Additional Borrowers granted
Lender a perfected first priority security interest pursuant to those certain
Commercial Security Agreements dated October 6, 1997 (collectively the
"Additional Borrowers' Security Agreements"). The Loan Agreement, the Note,
the Guaranty, the Original Borrower's Security Agreement, the Additional
Borrowers' Security Agreements and the other documents executed by any of the
Borrowers or Guarantor pertaining to, evidencing or securing the Line of Credit
are herein collectively referred to as the "Loan Documents".
E. The Line of Credit is in default as a result of Borrowers'
failure to comply with covenants and agreements contained in the Loan
Agreement. In order to avoid Lender's pursuit of remedies for collection of
the Line of Credit and realization on the collateral securing the Line of
Credit, Borrowers and Guarantor have requested that Lender accept, in full
satisfaction of the obligations of Original Borrower under the Loan Documents,
the transfer of substantially all of the Non-Prime Auto Paper and other
collateral covered by the Original Borrower's Security Agreement (the
"Transfer"), which Lender is willing to do, subject to the terms and conditions
hereof, provided that Additional Borrowers and Guarantor reaffirm their
continuing obligations under the Loan Documents after application of the credit
granted by Lender resulting from the Transfer.
F. Additional Borrowers and Guarantor have further requested
Lender to waive the existing defaults under the Loan Documents and restructure
the Line of Credit so that Additional Borrowers may continue to obtain advances
thereunder. Lender is willing to grant such request pursuant to the terms and
conditions hereinafter provided.
NOW, THEREFORE, for and in consideration of the premises, the mutual
covenants contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
1. The Line of Credit. The Parties agree, acknowledge and
stipulate that:
(a) Borrowers have defaulted under the terms and
conditions of the Loan Documents in certain respects;
(b) Lender has complied with all notice requirements and
provisions, if any, with respect to the defaults under the Loan
Documents, and all notice, grace and cure periods have either expired
or have been waived by Borrowers and Guarantor;
(c) Lender is entitled to accelerate all of the
Indebtedness, whether principal, accrued interest and/or other charges
allowed under the Loan Documents and applicable law, and to exercise
its other rights and remedies under the Loan Documents as a result of
such defaults; and
(d) The outstanding principal balance of the Line of
Credit as of the date hereof is $24,661,083.92, for which Borrowers
and Guarantor are jointly and severally liable and on a solidary basis
under the Loan Documents, and all of such Indebtedness is secured by
-2-
3
the perfected first priority security interest granted to Lender in
the collateral covered by Original Borrower's Security Agreement and
Additional Borrowers' Security Agreements.
2. Transfer of Collateral.
(a) Contemporaneously with the execution and delivery of
this Agreement, Original Borrower shall execute, acknowledge and
deliver to Lender a ▇▇▇▇ of Sale and Assignment in substantially the
form attached hereto as Exhibit "A" (the "▇▇▇▇ of Sale"), pursuant to
which Original Borrower sells, transfers, assigns, and conveys to
Lender, subject to the representations, warranties, terms, conditions
and covenants contained herein, the chattel paper covered by Original
Borrower's Security Agreement and constituting the portfolio of
Non-Prime Auto Paper which is listed on Exhibit "B" attached hereto
(the "Auto Paper Portfolio"), and all instruments, documents,
accounts, general intangibles and other collateral (including all
proceeds thereof) relating thereto or arising thereunder
(collectively, the "Purchased Collateral"), but expressly excluding
(i) inventory, (ii) the charged off loans and other assets listed on
Exhibit "C" attached hereto and (iii) all instruments, documents,
accounts, general intangibles and other collateral (including all
proceeds thereof) relating to or arising under such excluded assets
(collectively, the "Excluded Collateral"). To the extent there is on
deposit in the Dominion Account as of the close of business on the
date hereof, any collections with respect to the Auto Paper Portfolio,
such collections will be applied to the payment of accrued interest
and expenses owing to Lender and any excess thereof shall be retained
by Lender as part of the Purchased Collateral.
(b) Subject to the conditions subsequent specified in
Section 4 hereof, and without in any manner releasing Original
Borrower from any liability arising out of or in connection with this
Agreement and the ▇▇▇▇ of Sale, Lender hereby conditionally releases
and discharges Original Borrower from all liability under the Note,
the Loan Agreement, Original Borrower's Security Agreement and any
other Loan Documents executed by Original Borrower. Lender further
releases the Excluded Collateral from any security interest in favor
of Lender. So long as none of the conditions subsequent specified in
Section 4 occurs, this Section 2(b) shall serve to release and
discharge Original Borrower from all liability which Original Borrower
may have in connection with the payment of any or all of the debt
evidenced by the Note and performance of the obligations evidenced by
the Loan Documents. If any of the conditions subsequent specified in
Section 4 occurs, the release provisions of this Section 2(b) shall,
at Lender's sole option, be void and of no further force and effect.
(c) Subject to the conditions subsequent specified in
Section 4 hereof, Lender hereby conditionally releases and discharges
Additional Borrowers and Guarantor from a portion of their respective
liability under the Note and the Guaranty in an amount equal to
$15,882,333.40 reflecting the total outstanding principal advances
with respect to the Auto Paper Portfolio, as a result of which partial
release the remaining principal balance of the Line of Credit as of
the date hereof is $8,778,750.52 for which Additional Borrowers and
Guarantor remain jointly and severally liable and on a solidary basis.
-3-
4
(d) Borrowers and Guarantor acknowledge, agree and
stipulate that the Transfer is an absolute sale of the Purchased
Collateral to Lender and is not intended as a deed of trust, mortgage,
conditional title retention arrangement, trust conveyance or any other
security agreement of any nature whatsoever nor as a foreclosure under
any provision of the Uniform Commercial Code, and that none of
Borrowers nor Guarantor has any further interest or claim, including
specifically, but without implied limitation, any right or equity of
redemption, in and to the Purchased Collateral of any kind whatsoever.
Borrowers and Guarantor further acknowledge, agree and stipulate that
Lender is a good faith purchaser of the Purchased Collateral and that
this Agreement and the consummation of the Transfer are in the best
interests of all Borrowers and Guarantor in their present financial
situation. The business reasons for Original Borrower's sale of the
Purchased Collateral include, but are not limited to, the following
reasons: (i) the Purchased Collateral has been declining in value on
a going concern basis and eroding with the passage of time; (ii)
Original Borrower believes that liquidation of the Purchased
Collateral in a forced sale proceeding would result in a lower value;
(iii) Original Borrower has engaged in reasonable efforts to sell the
Purchased Collateral, and Lender's offer to purchase the Purchased
Collateral as reflected in this Agreement exceeds the best offer (both
as to price and terms) which Original Borrower has received from any
third party; and (iv) the consideration under this Agreement to be
given to Original Borrower for the Purchased Collateral is fair to and
in the best interest of Original Borrower under the circumstances.
(e) Contemporaneously with the execution and delivery of
this Agreement, Original Borrower shall deliver to Lender satisfactory
evidence that all necessary action on the part of Original Borrower,
including without limitation approval of the sole shareholder of
Original Borrower, has been taken with respect to the execution and
delivery of this Agreement, the ▇▇▇▇ of Sale and all other documents
and instruments executed by Original Borrower in connection herewith
and the consummation of the transactions contemplated hereby, so that
all of such documents are validly executed and delivered by Original
Borrower and will be binding upon and enforceable against Original
Borrower.
3. Restructure of Loan.
(a) Contemporaneously with the execution and delivery of
this Agreement, Additional Borrowers and Guarantor shall execute and
deliver to Lender a First Amendment to Loan Agreement and Related
Documents in substantially the form attached hereto as Exhibit "D"
(the "First Amendment").
(b) In order to evidence the renewal, modification and
restructuring, but not extinguishment, of the indebtedness evidenced
by the Note, Additional Borrowers will execute and deliver to Lender
an amended and restated promissory note in substantially the form
attached hereto as Exhibit "E" (the "Amended Note"). Lender will
retain the original of the Note but cause it to be marked "Replaced by
Amended and Restated Promissory Note dated February 27, 1998."
(c) Additional Borrowers and Guarantor agree, acknowledge
and stipulate that (i) the Parties have negotiated in good faith and
have agreed in good faith to the terms and
-4-
5
conditions of the First Amendment; (ii) the additional credit provided
under the First Amendment is necessary to prevent immediate and
irreparable harm to Additional Borrowers' business and to facilitate
the reorganization of Additional Borrowers' and Guarantor's
businesses; (iii) without the additional availability to obtain Loans
as provided in the First Amendment, Additional Borrowers will be
unable to retain or pay employees, to maintain their assets, to
provide financial information to attempt to reorganize their affairs,
or to perform tasks which Additional Borrowers believe are necessary
to maximize the value of their remaining assets; and (iv) as a result
of the partial release granted by Lender pursuant to Section 2(c)
above, Additional Borrowers and Guarantor are jointly and severally
liable and on a solidary basis to Lender in the current principal
amount of $8,778,750.52 plus all accrued interest and any other
charges allowed under the Loan Documents and applicable law, and
Additional Borrowers and Guarantor have no claims or offsets against,
or defenses or counterclaims to, the full and complete payment of any
and all such Indebtedness.
(d) Contemporaneously with the execution and delivery of
this Agreement, Additional Borrowers and Guarantor shall deliver to
Lender satisfactory evidence that all necessary action on the part of
such Parties has been taken with respect to the execution and delivery
of this Agreement, the First Amendment and such other documents
executed in connection herewith and the consummation of the
transactions contemplated hereby so that all of such documents are
validly executed and delivered and will be binding upon and
enforceable against such Parties.
4. Conditions Subsequent. Anything herein to the contrary
notwithstanding, in the event that any statement, warranty or representation
made by any of the Borrowers or Guarantor herein (other than with respect to
title to the Purchased Collateral and the absence of liens) is false,
misleading or erroneous in any material respect or, with respect to title to
the Purchased Collateral and the absence of liens is false, misleading or
erroneous in any respect, in the event any of the Borrowers or Guarantor
prevents, impedes, delays, stays, restrains, enjoins or sets aside, or seeks to
prevent, impede, delay, stay, restrain, enjoin or set aside, the Transfer or
the subsequent sale of the Purchased Collateral (provided that such subsequent
sale is challenged based on the validity of the Transfer), or any part thereof,
to any person or entity, without regard to whether any such attempt may be
successful, or in the event any person or entity, other than any of the
Borrowers or Guarantor, is successful in preventing, impeding, delaying,
staying, restraining, enjoining or setting aside the Transfer or the subsequent
sale of the Purchased Collateral (provided that such subsequent sale is
challenged based on the validity of the Transfer), or any part thereof, to any
person or entity for a period of more than thirty (30) days (which period of
thirty (30) days shall not apply to the setting aside of the Transfer or any
subsequent sale), Lender may, at its sole option, declare its agreements in
Section 2(b) and 2(c) of this Agreement to be null and void, ab initio, and of
no force or effect. In addition, in any such event, and subject to the
liability thereafter of Borrowers and Guarantor:
(a) The liens, rights, titles and interests evidenced by
Original Borrower's Security Agreement and the other Loan Documents
executed by the Original Borrower will be automatically revived and
reinstated with respect to the Purchased Collateral, or any part
-5-
6
thereof affected, if the same shall have been previously released, in
whole or in part, by Lender;
(b) The Line of Credit shall be deemed in default;
(c) Lender shall have the right, at its option, to
foreclose the lien and security interest, and enforce the rights,
titles and interest of the Lender under, the Loan Documents, including
Original Borrower's Security Agreement, and the right to take such
other action permitted hereby or at law or in equity; and
(d) All costs of Lender incurred in connection with this
Agreement and any other costs of such foreclosure, enforcement or
other action shall be deemed a part of the indebtedness of the Line of
Credit and the full indebtedness of the Line of Credit shall be
payable by Original Borrower as well as by Additional Borrowers and
Guarantor; provided, however, that in calculating the amount of the
full indebtedness then owing to Lender, Lender shall give credit for
any cash proceeds it has received from its disposition or collection
of the Purchased Collateral less any amount Lender has been required
to disgorge or otherwise refund on account of such cash proceeds; and
PROVIDED FURTHER, THAT THE LIMITATION PERIOD FOR ANY SUCH FORECLOSURE,
ENFORCEMENT OR OTHER ACTION FOR PURPOSES OF THE STATUTE OF LIMITATIONS
SHALL NOT COMMENCE TO RUN UNTIL THE DATE UPON WHICH THE LENDER
DECLARES IN WRITING ITS AGREEMENTS IN SECTION 2(b) AND 2(c) OF THIS
AGREEMENT TO BE NULL AND VOID AND OF NO FORCE AND EFFECT.
5. Representations and Warranties of Borrowers and Guarantor.
Borrowers and Guarantor jointly and severally represent and warrant to Lender
as follows:
(a) Each of the Borrowers and Guarantor is a corporation
duly organized, validly existing and in good standing under the laws
of its state of incorporation and has the corporate power and
authority to execute and deliver, and to perform its obligations
under, this Agreement and all instruments and other documents executed
and delivered in connection herewith (collectively, the "Transfer
Documents"). The execution and delivery by Borrowers and Guarantor of
this Agreement and the other Transfer Documents, and consummation by
such Parties of the transactions contemplated hereby and thereby, have
been duly and validly authorized by all necessary corporate action on
the part of such Parties. This Agreement and the other Transfer
Documents to which any of the Borrowers or Guarantor is a party
constitute the legal, valid and binding obligations of such Parties,
enforceable against them in accordance with their respective terms.
(b) The execution and delivery by Borrowers and Guarantor
of this Agreement and the other Transfer Documents, and the
consummation of the transactions contemplated hereby and thereby, will
not conflict with or result in a breach of or default under any of the
terms, conditions or provisions of the articles of incorporation or
bylaws of such Parties or any agreement or other instrument to which
any of such Parties is a party or by which any of such Parties or the
Purchased Collateral may be bound.
-6-
7
(c) The execution and delivery by Borrowers and the
Guarantor of this Agreement and the other Transfer Documents,
compliance by such Parties with the terms hereof and thereof, and the
consummation by such Parties of the transactions contemplated hereby
and thereby, do not require any of such Parties to obtain any consent,
approval or action of, or make any filing with or give any notice to,
any corporation, person or other entity or any governmental or
judicial authority.
(d) None of the transactions contemplated by this
Agreement are restrained or prohibited by any injunction, stay, order
or judgment rendered by any court or other governmental agency, no
proceeding has been instituted or is pending in which any creditor of
any of the Borrowers, Guarantor or any other person or entity seeks to
restrain such transactions, or any part thereof, or otherwise to
attach, sequester or enforce any other remedies against the Purchased
Collateral or any part thereof, nor is there any person or entity,
other than Lender, that has the right to seek any such attachment,
sequestration or other remedies.
(e) None of the Borrowers nor Guarantor have commenced a
voluntary proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law nor has any involuntary proceeding
been commenced against any of the Borrowers or Guarantor seeking
relief under the federal bankruptcy code.
(f) All of the Purchased Collateral, including without
limitation the Auto Paper Portfolio, is owned by Original Borrower
free and clear of any lien, security interest, charge or other
encumbrance, except for Lender's perfected security interest. All of
the Purchased Collateral that comprises Eligible Non-Prime Auto Paper
is enforceable in accordance with its terms, is genuine, and complies
with applicable federal, state and local laws, ordinances, rules and
regulations concerning form, content and manner of preparation and
execution and, to the best of Original Borrower's knowledge, all
persons appearing to be obligated on the Eligible Non-Prime Auto Paper
have authority and capacity to contract and are in fact obligated as
they appear to be on the Eligible Non-Prime Auto Paper, free of any
offset, compensation, deduction or counterclaim. To the extent the
Purchased Collateral consists of accounts, chattel paper, instruments
or general intangibles that are not Eligible Non-Prime Auto Paper,
such ineligible collateral is enforceable in accordance with its
terms, is genuine, and complies in all material respects with
applicable federal, state and local laws, ordinances, rules and
regulations concerning form, content and manner of preparation and
execution and, to the best of Original Borrower's knowledge, all
persons appearing to be obligated on such collateral have authority
and capacity to contract and are in fact obligated as they appear to
be on such collateral, free of any offset, compensation, deduction or
counterclaim. Except as disclosed on Exhibit "F" attached hereto, all
original instruments representing the Auto Paper Portfolio and all
certificates of title relating thereto have been delivered to Lender.
None of the security for the Auto Paper Portfolio has been foreclosed
upon or repossessed. None of the chattel paper listed on Exhibit "B"
is subject to a known claim or legal action asserted or filed by any
obligor thereunder.
-7-
8
(g) Neither Original Borrower nor Search Financial
Services Acceptance Corp. has any forced placed insurance or vendor
single insurance coverage in effect with respect to the motor vehicles
securing the Purchased Collateral.
All representations and warranties contained in this Section 5 or elsewhere in
this Agreement shall survive the execution and delivery of this Agreement and
the other Transfer Documents and shall inure to the benefit of Lender and its
successors and assigns.
6. Representations and Warranties of Lender. Lender represents
and warrants to Borrowers and Guarantor that Lender is the present legal and
equitable owner and holder of the Loan Documents and is authorized to execute
and deliver this Agreement and the other Transfer Documents to which it is a
party and to perform its obligations thereunder.
7. Covenants of Borrowers and Guarantor.
(a) Except as otherwise provided in subsection (d) below,
Original Borrower shall deliver to Lender, on or within three (3)
Business Days after the date hereof, a loan history for each item of
chattel paper included as part of the Auto Paper Portfolio and all
documents, items and information, including without limitation books
and records, in Original Borrower's possession relating to the
Purchased Collateral. In the event any of the Borrowers or Guarantor
locates any of the missing instruments listed on Exhibit "F", such
instruments will be promptly delivered to Lender.
(b) Borrowers and Guarantor shall promptly forward to
Lender all written notices received by any of them after the date
hereof with respect to the Purchased Collateral. All funds and
documents received after the date hereof by Original Borrower in
connection with the Purchased Collateral shall immediately be turned
over to Lender without recourse or warranty and, pending such payment
or delivery, Original Borrower shall hold the same in trust for
Lender. Lender may endorse any checks payable to the order of
Original Borrower with respect to the Purchased Collateral. All funds
on deposit in the blocked branch accounts representing collections
with respect to the Purchased Collateral shall be promptly wire
transferred to the Dominion Account. Original Borrower acknowledges
and agrees that from and after the date hereof Original Borrower has
no interest in any funds in the Dominion Account or any blocked branch
accounts, all of which blocked branch accounts shall either be
transferred into the name of Lender or terminated.
(c) Upon request by Lender, Original Borrower shall
execute letters prepared by Lender and addressed to account debtors
giving them written notice of the transfer of the Auto Paper Portfolio
to Lender.
(d) To the extent requested by Lender and for such period
of time as may be designated by Lender (but in any event not to exceed
ninety (90) days), Original Borrower shall assist Lender in the
servicing of the Auto Paper Portfolio pursuant to the terms of a
servicing agreement executed contemporaneously herewith.
-8-
9
8. Power of Attorney. Original Borrower hereby irrevocably
constitutes and appoints Lender and any officer or agent thereof, with full
power of substitution, as its true and lawful attorney-in-fact with full
revocable power and authority in the name of Original Borrower or in its own
name, to take any and all action and to execute any and all documents or
instruments which Lender at any time and from time to time deems necessary or
desirable to accomplish the purposes of this Agreement and, without limiting
the generality of the foregoing, Original Borrower hereby gives Lender the
power and right on behalf of Original Borrower and in its own name to do any of
the following, without notice to or the consent of Original Borrower:
(a) To demand, ▇▇▇ for, collect or receive in the name of
Original Borrower or in its own name, any money or property at any
time payable or receivable on account of or in exchange for any of the
Purchased Collateral and, in connection therewith, endorse checks,
notes, drafts, acceptances, money orders, documents of title, or any
other instruments for the payment of money under the Purchased
Collateral or any policy of insurance;
(b) To notify post office authorities to change the
address for delivery of mail of Original Borrower to an address
designated by Lender and to receive, open and dispose of mail
addressed to Original Borrower; provided that Lender shall refrain
from so notifying postal authorities for a period not to exceed ninety
(90) days after the date hereof if during such period Original
Borrower opens all of its mail in the presence and with the
participation of a designated representative of Lender and turns over
to Lender all such mail relating to the Purchased Collateral.
(c) To direct account debtors and any other parties
liable for payment under any of the Purchased Collateral to make
payment of any and all monies due and to become due thereunder
directly to Lender or as Lender shall direct;
(d) To receive payment of and receipt for any and all
monies, claims and other amounts due and to become due at any time in
respect of or arising out of any Purchased Collateral;
(e) To sign and endorse any invoices, freight or express
bills, bills of lading, storage or warehouse receipts, drafts against
debtors, certificates of title and applications for certificates of
title, assignments, proxies, stock powers, verifications, and notices
in connection with chattel paper and other documents relating to the
Purchased Collateral;
(f) To commence and prosecute any suit, action or
proceeding at law or in equity in any court of competent jurisdiction
with respect to the Purchased Collateral;
(g) To collect the Purchased Collateral or any part
thereof and to enforce any other right in respect of any Purchased
Collateral;
(h) To defend any suit, action or proceeding brought
against Original Borrower with respect to any Purchased Collateral;
-9-
10
(i) To settle, compromise or adjust any suit, action or
proceeding described above and, in connection therewith, to give such
discharges or releases as the Lender may deem appropriate; and
(j) To insure, and to make, settle, compromise or adjust
claims under any insurance policy covering, any of the Purchased
Collateral.
This power of attorney is a power coupled with an interest and shall be
irrevocable. Lender shall be under no duty to exercise or withhold the
exercise of any of the rights, powers, privileges and options expressly or
implicitly granted to Lender in this Agreement, and shall not be liable for any
failure to do so or any delay in doing so. Lender shall not be liable for any
act or omission for any error of judgment or any mistake of fact or law in its
individual capacity or in its capacity as attorney-in-fact, except acts or
omissions resulting from its willful misconduct.
9. Brokerage Commissions. Each Party represents to the other
Parties that no broker has been involved in this transaction. It is agreed
that if any claim for a brokerage commission, fee or other compensation is ever
made against any Party to this Agreement in connection with this transaction,
such claim shall be handled and paid by the Party whose actions or alleged
commitments form the basis of such claim, and the Party whose actions or
alleged commitments formed the basis of such claim shall indemnify and hold
harmless the other Party against whom the claim is made from and against any
and all such claim or demand with respect to any such brokerage commission, fee
or other compensation asserted by any person, firm or corporation in connection
with this Agreement or the transactions contemplated hereby.
10. Limited Assumption of Seller's Liabilities. Lender is not and
shall not to be construed or deemed to be a successor of Original Borrower, it
being understood and agreed that Lender is acquiring the Purchased Collateral
subject and subordinate only to the terms of this Agreement and the Loan
Documents, and it is further understood and agreed that Lender has not and does
not hereby assume or agree to assume any liability whatsoever of Original
Borrower nor does Lender assume or agree to assume any obligation of Original
Borrower under any contract, lease, agreement, indenture or any other document
to which Original Borrower is a party, by which Original Borrower is or may be
bound or which in any manner affects the Purchased Collateral, or any part
thereof, except as otherwise expressly agreed to by Lender in this Agreement or
the Transfer Documents.
11. No Partnership or Joint Venture. None of the Lender, the
Borrowers nor the Guarantor intends hereby to create a partnership, either
general or limited, or a joint venture, and neither this Agreement nor the
manner in which title to the Purchased Collateral, or any part thereof, is held
or conveyed shall cause Lender, to be partners, either general or limited, or
joint venturers with any of the Borrowers or Guarantor.
12. Survival of Terms. The terms and provisions hereof shall
survive the execution and delivery of this Agreement and the Transfer Documents
and shall remain in full force and effect thereafter unless otherwise specified
herein.
-10-
11
13. Binding Effect. This Agreement shall be binding upon and
shall inure to the benefit of the Parties and their respective successors and
assigns.
14. Entire Agreement. This Agreement and the Transfer Documents
embody the entire agreement between the Parties relative to the subject matter
hereof, and there are no oral or parol agreements existing between Borrowers,
Guarantor or Lender, or any combination thereof, relative to the subject matter
hereof which are not expressly set forth herein and in the Transfer Documents
and covered hereby and thereby.
15. Headings. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation hereof.
16. Interpretation. Whenever the context hereof shall so require,
the singular shall include the plural, the male gender shall include the female
gender and the neuter, and vice versa.
17. Notices. All notices or other communications required or
permitted to be given pursuant to the Loan Documents or hereto shall be in
writing and shall be deemed served and given at the time of (i) deposit in a
depository receptacle under the care and custody of the United States Postal
Service, properly addressed to the designated address of the addressee as set
forth below, postage prepaid, registered or certified mail with return receipt
requested, (ii) delivery to the designated address of the addressee set forth
below by a third party commercial delivery service or (iii) receipt at the
facsimile receiving facility of the addressee if transmitted by facsimile.
Notice given in any other manner shall be effective only if and when received
by the addressee. For purposes of notices, the addresses and facsimile numbers
of the Parties shall be as follows:
If to Lender: Hibernia National Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Facsimile: 504/533-5817
If to Original Borrower: Search Funding II, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇.▇. 123
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile: 214/965-6098
If to any of the c/o Search Financial Services Holding
Additional Borrowers: Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇.▇. 123
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile: 214/965-6098
-11-
12
If to Guarantor: Search Financial Services, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇.▇. 123
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile: 214/965-6098
Any Party shall have the right to change its address and facsimile numbers for
notice hereunder and under the other Loan Documents to any other location
within the continental United States by notice to the other Parties of such new
address at least thirty (30) days prior to the effective date of such new
address.
18. Expenses. Except as otherwise specifically provided herein,
each Party shall pay its own expenses in connection with this Agreement and the
transactions contemplated hereby.
19. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but such counterparts
together shall constitute one and the same agreement. Any signature page to
any such counterpart may be detached from such counterpart without impairing
the legal effect of the signatures thereon and thereafter attached to another
counterpart identical thereto, except having attached to it such additional
signature pages. It shall not be necessary that the signature of, or on behalf
of, each Party, or that the signature of all Parties required to bind any
Party, appear on each counterpart. It also shall not be necessary in making
proof of this Agreement to produce or account for more than a single
counterpart containing the respective signatures of, or on behalf of, each of
the Parties hereto.
20. Additional Acts. Except as otherwise provided herein, in
addition to the acts and deeds recited herein and contemplated to be performed,
executed and/or delivered by Original Borrower, Additional Borrowers, Guarantor
or Lender, Original Borrower, Additional Borrowers and Guarantor hereby agree
to perform, execute and/or deliver, or cause to be performed, executed and/or
delivered, as of the date hereof, any and all such further acts, deeds and
assurances as Lender or other third party may reasonably require to (a)
evidence and vest in Lender the ownership of and indefeasible title to the
Purchased Collateral, and (b) consummate the transactions contemplated
hereunder.
21. Applicable Law. THIS AGREEMENT AND ALL THE EXHIBITS HERETO
SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS.
22. Severability. In case any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
23. Time of Essence. Time is of the essence of this Agreement.
-12-
13
24. Attorneys' Fees. Should any Party employ an attorney or
attorneys to enforce any of the provisions hereof, or to protect its interest
in any manner arising under this Agreement, or to recover damages for the
breach of this Agreement, the non-prevailing Party in any action pursued in
courts of competent jurisdiction (the finality of which is not legally
contested) agrees to pay to the prevailing Party all reasonable costs, damages
and expenses, including specifically, but without implied limitation,
attorneys' fees, expended or incurred by the prevailing Party in connection
therewith.
25. Advice of Counsel. As a part of the consideration for this
Agreement and prior to the execution and delivery hereof, each Party hereto has
fully informed itself of the terms, conditions and effects of this Agreement
and the Transfer, and, to the extent the Parties hereto desire to do so, each
Party has had this Agreement and the documents to be executed and delivered
pursuant to this Agreement reviewed by an attorney or attorneys of its choice
and fully understands the effect hereof, including specifically, but without
implied limitation, all federal income tax consequences of the consummation of
the transactions contemplated hereby. No promise or representation of any kind
has been made by Lender to any of the Borrowers or Guarantor, or anyone acting
on any of their behalf, except as expressly stated in this Agreement, and the
Borrowers and Guarantor jointly and severally agree and represent that they are
executing this Agreement of their own free will in reliance on their own
judgment and the advice of their counsel and without threat or duress.
26. RELEASE. THE BORROWERS AND THE GUARANTOR HEREBY ACKNOWLEDGE
THAT THEY HAVE NO DEFENSE, COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM OR
DEMAND OF ANY KIND OF NATURE WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR
ELIMINATE ALL OR ANY PART OF THEIR RESPECTIVE LIABILITY TO REPAY THE
"INDEBTEDNESS" OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE
FROM THE LENDER. THE BORROWERS AND THE GUARANTOR HEREBY VOLUNTARILY AND
KNOWINGLY RELEASE AND FOREVER DISCHARGE THE LENDER, ITS PREDECESSORS, OFFICERS,
DIRECTORS, AGENTS, EMPLOYEES, ATTORNEYS, SUCCESSORS AND ASSIGNS, FROM ALL
POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES,
AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED,
SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT LAW OR IN
EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS AGREEMENT IS
EXECUTED, WHICH THE BORROWERS OR THE GUARANTOR MAY NOW OR HEREAFTER HAVE
AGAINST THE LENDER, ITS PREDECESSORS, OFFICERS, DIRECTORS, AGENTS, EMPLOYEES,
ATTORNEYS, SUCCESSORS AND ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH
CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR
OTHERWISE, AND ARISING FROM ANY "LOANS", INCLUDING WITHOUT LIMITATION ANY
CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING OF RECEIVING INTEREST
IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE OF ANY RIGHTS AND
REMEDIES UNDER THE LOAN AGREEMENT OR RELATED DOCUMENTS, AND NEGOTIATION FOR AND
EXECUTION OF THIS AGREEMENT.
-13-
14
27. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE BORROWERS, THE GUARANTOR AND THE LENDER HEREBY IRREVOCABLY
AND EXPRESSLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR
COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF
OR RELATING TO THE LOAN AGREEMENT OR RELATED DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED THEREBY OR THE ACTIONS OF THE LENDER IN THE NEGOTIATION,
ADMINISTRATION, OR ENFORCEMENT THEREOF.
[Remainder of page intentionally left blank]
-14-
15
EXECUTED as of the date first above written.
LENDER:
HIBERNIA NATIONAL BANK,
a national banking association
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President
ORIGINAL BORROWER:
SEARCH FUNDING II, INC.,
a Texas corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
President
-15-
16
ADDITIONAL BORROWERS :
SEARCH FINANCIAL SERVICES HOLDING
COMPANY, a Texas corporation
SEARCH FINANCIAL SERVICES OF FLORIDA,
INC., a Texas corporation
SEARCH FINANCIAL SERVICES OF GEORGIA,
INC., a Texas corporation
SEARCH FINANCIAL SERVICES OF
LOUISIANA, INC., a Louisiana corporation
SEARCH FINANCIAL SERVICES OF
OKLAHOMA, INC., a Texas corporation
SEARCH FINANCIAL SERVICES OF
PUERTO RICO, INC., a Puerto Rico corporation
SEARCH FINANCIAL SERVICES OF
TENNESSEE, INC., a Texas corporation
SEARCH FINANCIAL SERVICES OF TEXAS,
INC., a Texas corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
President
GUARANTOR:
SEARCH FINANCIAL SERVICES INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
Senior Executive Vice President and
Chief Financial Officer
-16-
17
SCHEDULE OF EXHIBITS:
Exhibit "A" ▇▇▇▇ of Sale
Exhibit "B" Auto Paper Portfolio
Exhibit "C" Excluded Collateral
Exhibit "D" First Amendment
Exhibit "E" Amended Note
Exhibit "F" Undelivered Instruments
-17-
