Exhibit 10.1
AMENDED AND RESTATED MOTOR VEHICLE INSTALLMENT
CONTRACT LOAN AND SECURITY AGREEMENT
This Amended and Restated Motor Vehicle Installment Contract Loan and
Security Agreement dated as of March 31, 2001 ("Agreement") is entered into by
and between THE FINANCE COMPANY, a Virginia corporation, (hereinafter referred
to as "Borrower") 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
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A. Borrower and Lender are parties to that certain Amended and Restated
Motor Vehicle Installment Contract Loan and Security Agreement dated as of
January 1, 1999 as amended ("Prior 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) renew, extend, amend and restate the Prior Agreement in its entirety; and
(ii) document such other changes in the lending relationship between the parties
as have occurred since the Prior Agreement.
C. The execution and delivery of this amendment and restatement of the
Prior Agreement shall not effectuate a novation or refinancing of the
indebtedness outstanding under the Prior Agreement but rather as it pertains to
the indebtedness outstanding under the Prior Agreement shall constitute a
substitution of the terms governing the payment and performance of such
indebtedness. The execution and delivery of this Agreement in no way diminishes
or disrupts (i) the perfection or continuity of the Lender's security interest
in the Collateral, or (ii) its rights under any other agreements including, but
not limited to, any guaranties, pledge agreements and stock warrants.
ARTICLE I. DEFINITIONS
Section 1.0. Definitions. Capitalized terms used in this Agreement shall
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have the
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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
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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 obligations 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
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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. Except as modified by Sections 2.4 and
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15.1, the Loan shall bear interest, calculated daily on the basis of a 365-day
year, at a per annum rate equal to the LIBOR Rate as it may change upon the
first day of each calendar month plus (i) 350 basis points (3.50%) for the
Accounting Periods beginning April 1, 2001 and ending July 31, 2001 and (ii) 400
basis points (4.00%) for the Accounting Periods beginning August 1, 2001 and
ending when the Loan is paid in full.
The interest rate shall increase to the LIBOR Rate plus 3.75% in the event
any of the following occurs: (i) Borrower fails to achieve an unqualified
fiscal 2000 audit by April 30, 2001, (ii) Borrower is unable to meet the
additional reporting requirements set forth in Exhibits 5.1 (C) to the
reasonable satisfaction of Lender; or (iii) Borrower fails to maintain an
Interest Coverage of at least 1.5:1. In the event Borrower is able to correct
or cure any of the events which trigger the interest rate increase identified in
the preceding sentence, the interest rate shall automatically be reduced to
LIBOR plus 3.50% effective as of the first of the month following the date of
such cure or
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correction, provided that Borrower is in compliance with all terms of this
Agreement and maintains an Interest Coverage of at least 1.5:1.
Section 2.3. Loan Term: Right to Terminate. Unless sooner terminated as
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hereinafter provided, this Agreement shall terminate on January 1, 2002 at which
time the Loan becomes payable in full. There is no renewal option under this
Agreement. 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
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provision of 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
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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
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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. Fees.
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(A) Borrower shall pay to the Lender the Line Fee on the day it executes
this Agreement. The payment of the Line Fee is nonrefundable.
(B) If the average daily balance (the sum of the daily balances of the Loan
during a calendar quarter divided by the number of days in the quarter) of the
Loan drops below 38.46% times the applicable Available Line amount during any
calendar quarter, Borrower shall pay to Lender, on the fifth day of the month
following the end of the applicable calendar quarter, an underutilization fee
equal to .09375% times the difference between the average daily balance and
38.46% times such Available Line amount.
(C) Borrower may terminate (whether by prepayment or otherwise) this
Agreement before January 1, 2002 without penalty, provided that Borrower has
satisfied all other obligations under this Agreement.
Section 2.6. Other Credit Facilities. Notwithstanding the terms and
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conditions set forth herein, during the term of this Agreement Borrower may not
enter into secured credit facility agreements with other lenders for loans
secured by, among other things, motor vehicle installment contracts without the
express written consent of Lender, which consent Lender may grant or deny in its
sole discretion. Lender will only consider a request for such consent if: (i)
no Event of Default (as defined in Section 15.0) exists under this Agreement,
(ii) such a transaction does not have a material adverse affect on the
Collateral securing this Agreement as determined by Lender, (iii) Borrower
implements procedures satisfactory to Lender for the separation and control of
collateral, (iv) Borrower pays Lender's out-of-pocket expenses (including
attorney fees) associated with reviewing the agreements and procedures and
preparing necessary documents, and (v) the other lender enters into an
intercreditor agreement with Lender which is in the form of Exhibit 9.0 (B) or
otherwise satisfactory to Lender. If the conditions set forth in the preceding
sentence are met, and Lender agrees in its sole discretion to allow the Borrower
to enter a secured credit facility, Lender shall execute such consents or
releases (limited to Contracts and Contract Rights, and other rights associated
with the Contracts, which are financed by the other lender and not by Lender) of
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security interest in the Collateral as may be necessary and sufficient to allow
Borrower to consummate such a credit facility agreement.
ARTICLE III. LOAN DISBURSEMENTS
Section 3.0. Loan -- Borrowing Base. Provided that there does not then
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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
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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) Advances may be requested on any
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Business Day and each Advance shall not exceed the Loan Availability determined
daily with a Statement of Borrowing Base provided 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.
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Section 3.3. Maximum Advances of Third Party Contracts. At no time shall
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the aggregate Borrower's Net Investment of all Eligible Contracts serviced by
Third Party Servicers exceed the lesser of five million dollars ($5,000,000) or
10% of the Borrowing Base. All Third Party Servicers shall enter into a Third
Party Servicing Agreement in substantially the form as that attached in Exhibit
11.
Section 3.4. Bulk Purchase Contracts. Borrower shall not allow the Gross
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Outstanding Balance of Bulk Purchase Contracts outstanding at the same time to
exceed 32% of the Gross Outstanding Balance of the Contracts included in the
Borrowing Base.
Section 3.5. Maximum Advances for Auto Center Serviced Receivables. At no
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time shall the aggregate Borrower's Net Investment of all Eligible Contracts
serviced by Auto Centers exceed the lesser of $10,000,000 or 20% of the
Borrowing Base.
ARTICLE IV. LOANS: PAYMENTS
Section 4.0. Payments by Borrower. (A) All payments by Borrower to Lender
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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 three (3) Business Days after receipt of such notice, either pay down the
Loan by the amount of such excess, or, deliver to Lender (i) additional Eligible
Contracts which are sufficient to increase the Borrowing
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Base above the Loan, and (ii) an updated trial balance reflecting such
Contracts.
(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.
Section 4.1. Contract Payments. Borrower shall direct all Contract Debtors
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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, if applicable, 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
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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 (1) 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.
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ARTICLE V. CONTRACT ADMINISTRATION
Section 5.0. Lender Administration. Lender shall have no liability to
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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 Lender, 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, the Depository
Account and its contents and any other Remittances received by Lender to
Borrower within five (5) Business Days after the termination and satisfaction.
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 if, upon
termination and satisfaction of this Agreement, such Remittances are returned
or assigned to Borrower within the above stated five (5) Business Days. In the
event Lender does not return or assign such Remittances within such five (5)
Business Days, Lender will pay to Borrower interest on the unremitted or
unassigned Remittances at the LIBOR Rate plus 3.50% per annum.
Section 5.1. Borrower Administration. (A) Borrower or Third Party
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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 and written policies for contract administration, which practices and
policies Borrower shall implement 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 and written policies
disclosed to Lender prior to the date hereof, Lender may 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 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
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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 monitor
Required Contract Debtor Insurance and notify Contract Debtors without such
insurance to obtain it. 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 center in Norfolk, Virginia, 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. Borrower may administer at each Auto Center the Pledged
Contracts originated at that Auto Center.
(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 (including
Required Contract Debtor 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. The reports shall
contain information for the Auto Centers on a consolidated and individual basis
as requested by Lender.
(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
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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
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the Indebtedness and all of Borrower's 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 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. The granting of the
security interest in this Agreement does not disrupt the continuity of the
existing security interest previously granted to
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Lender (as described in the Prior Agreement); it merely continues the existing
security interest. If before the execution of this Agreement Lender released its
security interest in property of the Borrower or consented to the Borrower
granting a security interest in its property to another Person, this Section 6.0
does not change the provisions of the release or consent.
Section 6.1. Disclosure of Security Interest. Borrower shall make
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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
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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
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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
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authorizes
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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 the 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 elections, be
signed by Borrower and may be sent on Borrower's stationery.
Section 6.5. Lender Appointed Attorney-in-Fact. Borrower hereby
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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 connections 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, to the
extent serviced at such locations, its service center and Auto Center(s) listed
in Exhibit 5.1(B). Borrower shall not change its name, trade name, principal
place of business and chief executive office or the location of any service
center or Auto 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
12
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 attorney's 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 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. Borrower shall
cause all Life Insurance premiums to be timely paid, and shall take
13
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.
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 of Lender
and shall be applied by Lender to the Indebtedness.
14
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 determinations, 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, at the Lender's option, either delivered to the Lender or in
the Borrower's possession 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
15
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
16
Commonwealth 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 notwithstanding 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 (i) conflict with, result in any breach of, or constitute
(with or without notice or lapse of time) a default under, the articles of
incorporation or bylaws of Borrower, or any indenture, instrument, agreement, or
court order by which it is bound, and (ii) result in the creation or imposition
of any lien upon any of Borrower's properties other than that granted to Lender.
(f) No Proceedings. Except as otherwise disclosed on Exhibit
--------------
10.0(k) attached hereto, 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,
17
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 which would, if decided adversely to Borrower, have an adverse effect on
the Collateral or the Borrower's ability to perform its obligations under this
Agreement.
(g) Collateral. Borrower has 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. 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. 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
18
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
19
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
20
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. The monthly and annual financial statements shall be
prepared in accordance with GAAP, except that Contract balances, and other items
based on the balances may be presented using the Rule of 78 or level yield,
whichever is so noted thereon. 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) shall maintain, and Borrower shall cause TFC Enterprises
Inc. (on a consolidated basis) ("TFCEI") to maintain, the financial and
portfolio covenants listed on Exhibit
21
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
maintain for the benefit of Lender, or at the option of Lender promptly deliver
to Lender, all Certificates of Title it receives for Financed Vehicles for
Pledged Contracts in accordance with Section 9.1(A). For each Bulk Purchase
Contract acquired by Borrower, whether before or after the date of this
Agreement, Borrower shall either (i) obtain a new certificate of title showing
Borrower as the first priority lienholder of the Financed Vehicle, or (ii)
obtain a power of attorney authorizing Lender to obtain a new certificate of
title for the Financed Vehicle showing Borrower or Lender as the first priority
lienholder.
Section 13.11. Interest Rate Collar. Until the Indebtedness is paid in
--------------------
full, Borrower shall keep in place an interest rate cap or 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 75% of the Loan.
The collar shall become effective and begin to pay benefits to Borrower in the
event that the Borrower's Spread falls below 13.5%. Notwithstanding the forgoing
Borrower will not be required to obtain such cap or collar so long as the
Borrower's Spread exceeds 14.5%.
ARTICLE XIV - NEGATIVE COVENANTS
22
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 other than
subsidiaries which qualify as special purpose entities for securitization
transactions.
Section 14.1. Investments. Borrower shall not make any investment in any
-----------
Person through the direct or indirect holding of securities or otherwise other
than existing subsidiaries and, to the extent required for the securitization
and not otherwise in breach of this Agreement, subsidiaries which qualify as
special purpose entities for securitization transactions.
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, (ii) subordinated inter-company loans by Borrower,
TFCEI and Recoveries, Inc. to First Community Finance, Inc. of less than six
million five hundred dollars ($6,500,000) and (iii) subordinated inter-company
loans by and among Borrower, TFCEI, Recoveries, Inc., any subsidiary of Borrower
which qualifies as a special purpose entity for a securitization transaction,
and any subsidiaries approved in advance by Lender, 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 liens on Contracts which is not
Subordinated Debt, and shall not create, incur, assume or suffer to exist any
short term indebtedness secured by liens on Contracts which is not Subordinated
Debt.
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.
Section 14.5. Transactions with Affiliate. Borrower shall not enter into,
---------------------------
or be a party to,
23
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). Without Lender's prior written consent, Borrower shall not
grant any holder of Subordinated Debt any of the following: a security interest,
voting rights or any equity interest in Borrower.
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
sell or pledge Contracts to a subsidiary which qualifies as a special purpose
entity for a securitization transaction if, before or at the time of sale or
pledge, the subsidiary pays Borrower for the purchase or advances funds to the
Borrower for the loan and Borrower applies the sale or loan proceeds to the Loan
to the extent necessary to reduce the Loan to the Borrowing Base. Borrower may
grant purchase money security interests in its equipment to Persons other than
Lender. Borrower may lease, as lessee, equipment it uses.
24
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.
(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
25
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, operation 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 two
percent (2.00%) 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
26
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 to 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
27
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
28
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 or judgement or mistake or 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 notifies 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.
-------------------------
(A) In the event of an unintentional default by Borrower with respect to
payment obligations or the delivery of Contract Delivery Documents or
Certificates of Title 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 ▇▇▇ 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, including, but not limited to, any
29
default of the covenants on Exhibit 13.6, 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 an 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.
Section 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 effective 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
30
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.
Auto Center: A full service branch operation of Borrower as found on
Exhibit 5.1(B).
Available Line: One Hundred Thirty Million Dollars ($130,000,000) until the
earlier of (1) the sale after March 1, 2001 of assets (in a single sale or
cumulatively in multiple sales), including a securitization, of more than
Twenty-Five Million Dollars ($25,000,000), or (2) April 30, 2001; then One
Hundred Million Dollars ($100,000,000) through July 31, 2001; then Seventy Five
Million Dollars ($75,000,000) through January 1, 2002. For the purpose of
determining the amount of a sale of assets consisting of Contracts, the sale
amount shall be the greater of the Outstanding Principal Balance of the
Contracts or the amount stated in the sale documents. Notwithstanding the
forgoing, if at the time the Available Line is to be reduced from One Hundred
Thirty Million Dollars ($130,000,000) to One Hundred Million Dollars
($100,000,000) the following conditions are not met (regardless of whether such
time occurred before this Agreement was entered into), the Available Line will
instead be reduced to Seventy Five Million Dollars ($75,000,000): (i) Borrower
must have a Net Worth of at least Forty Five Million Dollars ($45,000,000), (ii)
TFCEI must have a Net Worth of at least Forty Eight Million Dollars
($48,000,000), (iii) TFC must have a Recourse Debt Ratio not more than 1.45:1.0
and (iv) there must be at least Three Million Dollars ($3,000,000) of
availability under the Borrowing Base.
Borrower's Aggregate Net Investment: The Outstanding Principal Balance of
Eligible Contracts included in the Borrowing Base times the average net
investment percentage for the twelve preceding Accounting Periods. The average
net investment percentage for twelve Accounting Periods is the sum of the
Borrower's Net Investment for all Contracts which become Eligible Contracts
during such period (calculated as of the date that Borrower acquires the
Contract) divided by the sum of the Outstanding Principal Balances of such
Eligible Contracts (calculated as of the same date), expressed as a decimal
carried to four places.
Borrower's Net Investment: Gross Outstanding Balances less (i) unearned
finance charges, (ii) dealer holdback, (iii) any (refundable or nonrefundable)
reserves, (iv) any boarding fees in excess of one hundred fifty dollars ($150),
(v) any other fees, and (vi) the discount obtained from the Dealer when
purchasing the Contract(s). For the purpose of calculating the Borrower's
Aggregate Net Investment, the Borrower's Net Investment shall be further reduced
by any title holdbacks in excess of forty basis points (.0040) times the Loan.
31
Borrower's Spread: the amount by which the effective yield on the Pledged
Contracts exceeds the interest rate provided in Section 2.2. For the purposes
of this definition, the interest rate provided in Section 2.2 shall be
calculated using the then applicable LIBOR Rate plus 350 basis points (3.50%).
Borrowing Base: The amount equal to the lesser of (i) the Available Line or
(ii) the sum of: (a) eighty percent (80%) of the Outstanding Principal Balance
of all Eligible Contracts which are Transouth Contracts and (b) seventy-five
percent (75%) of the Outstanding Principal Balance of Eligible Contracts which
are Point of Sale Contracts and (c) sixty-seven percent (67%) of the Outstanding
Principal Balance of Eligible Contracts which are Bulk Purchase Contracts during
the time they are included in the Borrowing Base pursuant to Section 3.1,
provided however, that the Advances against all Eligible Contracts originated
after December 31, 2000 shall not exceed 95% of Borrower's Aggregate Net
Investment in those Eligible Contracts.
Bulk Purchase Contract: a Contract acquired on a group basis through
purchase of a portfolio of existing installment sales contracts from a Dealer or
a financial institution, except for a TranSouth Contract.
Business Day: any day other than (i) a Saturday or Sunday, or (ii) a day on
which banking institutions in the Commonwealth 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 or in the case of non-monthly accounts, their equivalent
as set forth in Exhibit 5.1 (A), (ii) which has been written off as reasonably
uncollectible 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 of all Pledged Contracts, which are
not Charged-Off Contracts, expressed as a percentage.
Closing Date: the date on which the first Advance is made.
32
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 more 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 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.
Dealer: the seller of the Financed Vehicle to the Contract Debtor.
Debt Ratio: the debt-to-equity ratio, calculated for each Accounting Period
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, or
in the case of non-monthly accounts,
33
their equivalent as set forth in Exhibit 5.1 (A), 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 Outstanding Principal
Balance of all Charged-Off Contracts reflected on Borrower's general ledger.
Gross Outstanding Balance: the total of all remaining payments due under a
Contract plus any other amount due thereunder.
Guarantors: TFCEI, The Insurance Agency, Inc., Recoveries, Inc. 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, interest expense shall be defined as the total
interest paid by Borrower to Lender and all other lenders but not including any
related debt costs (such as fees incurred in the underwriting and placing of
debt, including broker fees, legal fees, and registration or rating agency fees)
expensed as interest through the income statement for the time period measured.
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.
34
Line Fee: the fee payable by Borrower to Lender in an amount equal to Two
Hundred Eighty Thousand Dollars ($280,000).
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,
the Supplemental Documents, and any and all promissory notes, security
agreements, assignments, subordination agreements, pledge or hypothecation
agreements, mortgages, deeds of trust, leases, contracts and other instruments
and documents now and/or hereafter existing between Lender and Borrower or any
of the Guarantors or Affiliates of the Borrower and/or the Guarantors, executed
and/or delivered pursuant to or in conjunction with this Agreement, securing or
in any other manner relating to any of the Indebtedness.
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.
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 (calculated using
the Rule of 78s) from the Gross Outstanding Balance, where applicable.
35
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; (vi) purchase money security interests in its equipment to Persons
other than Lender; and (v) equipment leases.
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.
Pledged Portfolio: at any point in time the {{sum}} of all Pledged
Contracts.
Point of Sale Contract: a Contract which is not a Bulk Purchase Contract or
a TranSouth Contract.
Post Office Box: the post office boxes whose rights are owned by Lender and
into which Borrower receives 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.
Recourse Debt Ratio: the debt-to-equity ratio, calculated for each
Accounting Period by comparing total recourse liabilities, other than
Subordinated Debt, to Net Worth. An example of a liability that would be
excluded from this calculation would be those related to the certificates in any
prior securitization transaction which consolidate into the balance sheet but
are not recourse obligations of Borrower.
Recoveries: for any Accounting Period, the sum of all amounts received on
account of previously Charged-Off Contracts.
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: The number of Financed Vehicles which have been
repossessed by Borrower or any of its agents related to Delinquency Measurement
Contracts,
36
expressed as a percentage of the number of Delinquency Measurement Contracts.
Required Contract Debtor Insurance: insurance required by a Contract for
physical damage to, and theft or loss of, the Financed Vehicle, or the total
loss protection insurance issued to Borrower and approved by Lender.
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, or in the case of non-monthly accounts, their
equivalent as set forth in Exhibit 5.1 (A), expressed as a percentage.
Rolling Average Deferral, Contract Modification and Allowable Delinquency:
the weighted average of the number of deferrals and allowable delinquencies as
defined in Borrower's collection policies for any three (3) consecutive
Accounting Periods calculated separately for the portfolio of Pledged Contracts
and the Total Serviced Portfolio.
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.
Six Month Rolling Average Delinquency: the weighted average of the
Delinquency Measurements for any six (6) consecutive Accounting Periods for the
Pledged Portfolio.
Six Month Rolling Average Charged-Off Losses: the weighted average of the
Charged-Off Losses for any six (6) consecutive Accounting Periods for the
Pledged Portfolio.
Serviced Assets Leverage Ratio: calculated by comparing the sum of the
remaining principal balance of securitized receivables and Borrower's total
liabilities, other than Subordinated Debt, to Net Worth.
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
37
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.
Three Month Rolling Average Delinquency: the weighted average of the
Delinquency Measurements for any three (3) consecutive Accounting Periods for
the Total Serviced Portfolio.
Three Month Rolling Average Charged-Off Losses: the weighted average of the
Charged-Off Losses for any three (3) consecutive Accounting Periods for the
Total Serviced Portfolio.
Total Serviced Portfolio: all installment contract receivables serviced by
Borrower, including the Pledged Contracts serviced by Borrower and installment
contract receivables that may have been sold by Borrower to a third party for
which servicing rights were retained by Borrower. For the purpose of
calculating the covenants in Exhibit 13.6 applicable to the Total Serviced
Portfolio, the definitions of the covenants which refer to Pledged Contracts
shall be deemed to refer to the Total Serviced Portfolio.
TranSouth Contract: a Contract acquired by Borrower pursuant to the
TranSouth Asset Purchase Agreement.
TranSouth Asset Purchase Agreement: The Asset Purchase Agreement dated May
10, 2000 between Borrower and TranSouth Financial Corporation and referenced in
more detail in Amendment No. 1 to the Prior Agreement.
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
38
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 Commonwealth 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
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Electronic FAX: ▇▇▇-▇▇▇-▇▇▇▇
ATTN: CEO & CFO
If to Lender: General Electric Capital Corporation
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Electronic FAX (▇▇▇) ▇▇▇-▇▇▇▇
Attention: VP Risk - AFS
With a copy to: General Counsel
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
39
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 Document shall be binding upon and inure to the benefit of the permitted
successors and assigns of Borrower and Lender.
Section 17.8. Attorney's 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
40
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
41
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.
42
Entered into as of March 31, 2001.
GENERAL ELECTRIC CAPITAL
THE FINANCE COMPANY CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------ ---------------------
Its: Treasurer Its: Account Executive
----------------- --------------------
Pursuant to separate written guaranties, the undersigned entities are guarantors
of The Finance Company's obligations to General Electric Capital Corporation and
they hereby consent to this Agreement and acknowledge that the obligations of
the Borrower under this Agreement to the Lender are covered by the guaranties.
TFC ENTERPRISES,INC. RECOVERIES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------ ---------------------
Its: Treasurer Its: Treasurer
----------------- --------------------
THE INSURANCE AGENCY, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------
Its: Treasurer
-----------------
43
