1
EXHIBIT 10.1
LOAN AGREEMENT
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PRINCIPAL DATE MATURITY LOAN NO CALL COLLATERAL ACCOUNT OFFICER INITIALS
$25,000,000.00 10-06-1997
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References in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular loan
or item.
BORROWERS: SEARCH FUNDING II, INC. SEARCH FINANCIAL SERVICES HOLDING COMPANY
SEARCH FINANCIAL SERVICES OF FLORIDA, INC. SEARCH FINANCIAL SERVICES OF GEORGIA, INC.
SEARCH FINANCIAL SERVICES OF LOUISIANA, INC. SEARCH FINANCIAL SERVICES OF OKLAHOMA, INC.
SEARCH FINANCIAL SERVICES OF PUERTO RICO, INC. SEARCH FINANCIAL SERVICES OF TENNESSEE, INC.
SEARCH FINANCIAL SERVICES OF TEXAS, INC.
LENDER: HIBERNIA NATIONAL BANK
(TIN: ▇▇-▇▇▇▇▇▇▇)
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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THIS LOAN AGREEMENT between SEARCH FUNDING II, INC., SEARCH FINANCIAL SERVICES
HOLDING COMPANY, SEARCH FINANCIAL SERVICES OF FLORIDA, INC., SEARCH FINANCIAL
SERVICES OF GEORGIA, INC., SEARCH FINANCIAL SERVICES OF LOUISIANA, INC., SEARCH
FINANCIAL SERVICES OF OKLAHOMA, INC., SEARCH FINANCIAL SERVICES OF PUERTO RICO,
INC., SEARCH FINANCIAL SERVICES OF TENNESSEE, INC., and SEARCH FINANCIAL
SERVICES OF TEXAS, INC. (collectively "BORROWERS" and individually "BORROWER")
and HIBERNIA NATIONAL BANK ("LENDER") is made and executed on the following
terms and conditions. Borrowers have applied to Lender for a loan or loans and
other financial accommodations, including those which may be described on any
exhibit or schedule attached to this Agreement.
DEFINITIONS. The following words shall have the following meanings when used
in this Agreement. Terms not otherwise defined in this Agreement shall have
the meanings attributed to such terms in the Louisiana Commercial Laws -
Secured Transactions (La.-R.S. 10:9-101, et seq.). All references to dollar
amounts shall mean amounts in lawful money of the United States of America.
ADVANCE. The word "Advance" means a disbursement of Loan funds under this
Agreement.
AGREEMENT. The word "Agreement" means this Loan Agreement, as this Loan
Agreement may be amended or modified from time to time, together with all
exhibits and schedules attached or to be attached to this Loan Agreement
from time to time.
BORROWER. The words "Borrower" and "Borrowers" mean individually,
collectively and interchangeably SEARCH FUNDING II, INC., SEARCH FINANCIAL
SERVICES HOLDING COMPANY, SEARCH FINANCIAL SERVICES OF FLORIDA, INC.,
SEARCH FINANCIAL SERVICES OF GEORGIA, INC., SEARCH FINANCIAL SERVICES OF
LOUISIANA, INC., SEARCH FINANCIAL SERVICES OF OKLAHOMA, INC., SEARCH
FINANCIAL SERVICES OF PUERTO RICO, INC., SEARCH FINANCIAL SERVICES OF
TENNESSEE, INC., SEARCH FINANCIAL SERVICES OF TEXAS, INC., and all other
entities signing the Note.
BORROWING BASE. The words "Borrowing Base" mean the lesser of (a)
$25,000,000.00; or (b) the sum of (i) the lesser of (1) $17,000,000.00
("THE ELIGIBLE NON-PRIME AUTO PAPER SUBLIMIT"), or (2) 65% of the aggregate
amount of the outstanding principal and interest owed under Eligible
Non-Prime Auto Paper, and (ii) the lesser of (1) $8,000,000.00 ("THE
ELIGIBLE CONSUMER PAPER SUBLIMIT"), or (2) 65% of the aggregate amount of
the outstanding principal and interest owed under Eligible Consumer Paper.
Borrowers shall have the right to decrease the Eligible Non-Prime Auto
Paper Sublimit, no more than once during each calendar month, and increase
the Eligible Consumer Paper Sublimit by the amount of the Eligible
Non-Prime Auto Paper Sublimit decrease. Borrowers shall not have the right
to decrease the Eligible Consumer Paper Sublimit and increase the Eligible
Non-Prime Auto Paper Sublimit. Each Eligible Non-Prime Auto Paper Sublimit
decrease/Eligible Consumer Paper Sublimit increase must be $5,000,000.00,
or more, in increments of $500,000.00. At least five (5) Business Days
before the effective date of each Eligible Non-Prime Auto Paper Sublimit
decrease/Eligible Consumer Paper Sublimit increase, Borrowers shall provide
Lender with written notice containing (a) the amount of the sublimit
decrease/increase, and (b) the effective date of the sublimit
increase/decrease.
BUSINESS DAY. The words "Business Day" mean a day on which commercial
banks are open for business in New Orleans, Louisiana, excluding Saturdays
and Sundays.
CONSUMER PAPER. The words "Consumer Paper" mean a negotiable instrument
or other writing which evidences a monetary obligation of a natural person
incurred for personal, family, or household purposes. Consumer Paper does
not include (a) obligations of legal entities, or (b) obligations incurred
for commercial or agricultural purposes.
COLLATERAL. The word "Collateral" means and includes individually,
collectively, interchangeably and without limitation all property and
assets granted as collateral security for a Loan, whether real or personal
property, whether granted directly or indirectly, whether granted now or in
the future, and whether granted in the form of a security interest,
mortgage, collateral mortgage, deed of trust, assignment, pledge, crop
pledge, chattel mortgage, collateral chattel mortgage, chattel trust,
factor's lien, equipment trust, conditional sale, trust receipt, lien,
charge, lien or title retention contract, lease or consignment intended as
a security device, or any other security or lien interest whatsoever,
whether created by law, contract, or otherwise, including all accessions,
additions, replacements, and substitutions and all related accounts,
inventory, and general intangibles. The word "Collateral" includes without
limitation all collateral described below in the section titled
"COLLATERAL."
DEBTOR. The word "Debtor" means individually, collectively and
interchangeably each person or entity obligated upon any Non-Prime Auto
Paper or Consumer Paper and any grantor of a security interest as security
for any Non-Prime Auto Paper or Consumer Paper.
ELIGIBLE CONSUMER PAPER. The words "Eligible Consumer Paper" mean, at any
time, the Consumer Paper of SEARCH FINANCIAL SERVICES HOLDING COMPANY,
SEARCH FINANCIAL SERVICES OF FLORIDA, INC., SEARCH FINANCIAL SERVICES OF
GEORGIA, INC., SEARCH FINANCIAL SERVICES OF LOUISIANA, INC., SEARCH
FINANCIAL SERVICES OF OKLAHOMA, INC., SEARCH FINANCIAL SERVICES OF PUERTO
RICO, INC., SEARCH FINANCIAL SERVICES OF TENNESSEE, INC., and SEARCH
FINANCIAL SERVICES OF TEXAS, INC., which Lender, in the reasonable exercise
of its credit judgment, finds acceptable. Unless otherwise agreed to by
Lender in writing, Eligible Consumer Paper does not include:
(a) Consumer Paper that is not encumbered by a first lien priority
perfected Security Interest, granted in favor of Lender, where first
lien priority perfection is confirmed by evidence or opinions
reasonably acceptable to Lender.
(b) Consumer Paper that is not free and clear of all security
interests, liens, encumbrances, and claims of third parties, except
for Permitted Liens.
(c) Consumer Paper in which any person or entity (including any
subsidiary or affiliate of any Borrower) other than Borrowers owns any
interest.
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(d) Consumer Paper that is not in the possession of Lender or a
custodian approved in writing by Lender.
(e) Consumer Paper with three (3) or more cumulative contractual
payments past due, where a contractual payment is considered past due
only if the Debtor has paid less than NINETY PERCENT (90%) of the
amount of the contractual payment due (i.e., if a Debtor pays 90% or
more of a contractual payment it is not considered past due).
(f) Consumer Paper with respect to which the Debtor has been granted
more than two (2) extensions during the most recent consecutive twelve
(12) month period.
(g) Consumer Paper of any Debtor who, after incurring the indebtedness
evidenced by the Consumer Paper, has filed or has had filed against it
a petition in bankruptcy, insolvency proceeding, or other proceeding
under any other debtor-in-relief acts; or who has had appointed a
trustee, custodian, or receiver for the assets of such Debtor; or who
has made an assignment for the benefit of creditors or has become
insolvent or fails generally to pay the debts of the Debtor as such
debts become due; or who is in a debt repayment, consolidation or
restructure plan under the auspices, direction or control of any
entity or agency involved in providing credit rehabilitation or
counseling service (including, without limitation, Consumer Credit
Counselors).
(h) Consumer Paper that has been referred to an attorney for
collection.
(i) Consumer Paper that evidences a security interest in any goods
that are in the possession of any Borrower or any agent of any
Borrower.
(j) Consumer Paper that represents a renewal or a restructure of a
monetary obligation, in whole or in part, in which the prior
delinquency of the Debtor was a consideration in the renewal or
restructure.
(k) Consumer Paper not payable in substantially equal monthly
installments until maturity or with a final installment equal to two
or more times the regular monthly installments.
(l) Consumer Paper with respect to which the Debtor is a shareholder,
director, officer, employee or agent of any Borrower.
(m) Consumer Paper with respect to which the Debtor is a subsidiary
of, or affiliated with or related to, any Borrower or any shareholder,
director or officer of any Borrower.
(n) Consumer Paper with respect to which the obligations of the Debtor
may be conditional.
(o) Consumer Paper with respect to which the Debtor is not a resident
of the United States or Puerto Rico, except to the extent such
Consumer Paper is supported by security interests, insurance, bonds,
or other assurances reasonably satisfactory to Lender.
(p) Consumer Paper with respect to which any Borrower is or may become
liable to the Debtor for goods sold or services rendered by the Debtor
to any Borrower.
(q) Consumer Paper which is subject to any discount (other than
discounts for unearned interest), credit, dispute, counterclaim or
setoff in favor of the Debtor.
(r) Consumer Paper with respect to which Lender, using its reasonable
credit judgment, deems ineligible.
(s) Consumer Paper not supported by appropriate documentation as
determined by Lender in its sole, but reasonable, discretion.
ELIGIBLE NON-PRIME AUTO PAPER. The words "Eligible Non-Prime Auto Paper" mean,
at any time, the Non-Prime Auto Paper of SEARCH FUNDING II, INC., which Lender,
in the reasonable exercise of its credit judgment, finds acceptable. Unless
otherwise agreed to by Lender in writing, Eligible Non-Prime Auto Paper does not
include:
(a) Non-Prime Auto Paper that is not encumbered by a first priority
perfected Security Interest, granted in favor of Lender, where first
priority perfection is confirmed by evidence or opinions reasonably
acceptable to Lender.
(b) Non-Prime Auto Paper that is not free and clear of all security
interests, liens, encumbrances, and claims of third parties, except
for Permitted Liens.
(c) Non-Prime Auto Paper in which any person or entity (including any
subsidiary or affiliate of any Borrower) other than SEARCH FUNDING II,
INC., owns any interest.
(d) Non-Prime Auto Paper that evidences a security interest in a motor
vehicle that has not been perfected within a reasonable time after
origination of the Non-Prime Auto Paper.
(e) Non-Prime Auto Paper that is not delivered to Lender or a
custodian approved by Lender within a reasonable period (as determined
by Lender in its sole discretion) after origination or acquisition.
(f) Non-Prime Auto Paper with three (3) or more cumulative contractual
payments past due, where a contractual payment is considered past due
only if the Debtor has paid less than NINETY PERCENT (90%) of the
amount of the contractual payment due (i.e., if a Debtor pays 90% or
more of a contractual payment it is not considered past due).
(g) Non-Prime Auto Paper with respect to which the Debtor has been
granted more than two (2) extensions during the most recent
consecutive twelve (12) month period.
(h) Non-Prime Auto Paper of any Debtor who, after incurring the
indebtedness evidenced by the Non-Prime Auto Paper, has filed or has
had filed against it a petition in bankruptcy, insolvency proceeding,
or other proceeding under any other debtor-in-relief acts; or who has
had appointed a trustee, custodian, or receiver for the assets of such
Debtor; or who has made an assignment for the benefit of creditors or
has become insolvent or fails generally to pay the debts of the Debtor
as such debts become due; or who is in a debt repayment, consolidation
or restructure plan under the auspices, direction or control of any
entity or agency involved in providing credit rehabilitation or
counseling service (including, without limitation, Consumer Credit
Counselors).
(i) Non-Prime Auto Paper that has been referred to an attorney for
collection.
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(j) Non-Prime Auto Paper that evidences a security interest in any
goods that are in the possession of any Borrower or any agent of any
Borrower.
(k) Non-Prime Auto Paper that represents a renewal or a restructure of
a monetary obligation, in whole or in part, in which the prior
delinquency of the Debtor was a consideration in the renewal or
restructure.
(l) Non-Prime Auto Paper not payable in substantially equal monthly
installments until maturity or with a final installment equal to two
or more times the regular monthly installments.
(m) Non-Prime Auto Paper with respect to which the Debtor is a
shareholder, director, officer, employee or agent of any Borrower.
(n) Non-Prime Auto Paper with respect to which the Debtor is a
subsidiary of, or affiliated with or related to, any Borrower or any
shareholder, director or officer of any Borrower.
(o) Non-Prime Auto Paper with respect to which the obligations of the
Debtor may be conditional.
(p) Non-Prime Auto Paper with respect to which the Debtor is not a
resident of the United States, except to the extent such Non-Prime
Auto Paper is supported by security interests, insurance, bonds, or
other assurances reasonably satisfactory to Lender.
(q) Non-Prime Auto Paper with respect to which any Borrower is or may
become liable to the Debtor for goods sold or services rendered by the
Debtor to any Borrower.
(r) Non-Prime Auto Paper which is subject to any discount (other than
discounts for unearned interest), credit, dispute, counterclaim or
setoff in favor of the Debtor.
(s) Non-Prime Auto Paper with respect to which Lender, using its
reasonable credit judgment, deems ineligible.
(t) Non-Prime Auto Paper not supported by appropriate documentation as
determined by Lender in its sole, but reasonable, discretion.
ERISA. The word "ERISA" means the Employee Retirement Income Security
Act of 1974, as amended.
EVENT OF DEFAULT. The words "Event of Default" mean individually,
collectively, and interchangeably any of the Events of Default set forth
below in the section titled "EVENTS OF DEFAULT."
EXPIRATION DATE. The words "Expiration Date" mean the earlier of (a) in
the event an Event of Default occurs, the date Lender demands repayment, in
full, of the aggregate unpaid principal amount of all Advances then
outstanding and all accrued unpaid interest, together with all other
applicable fees, costs and charges, if any, not yet paid, (b) the date of
termination of Lender's commitment to lend under this Agreement, or (c) the
latest stated maturity date of the Note and any renewals and extensions of
the Note (PROVIDED, HOWEVER, THAT LENDER HAS MADE NO COMMITMENT TO, AND IS
NOT OBLIGATED TO, RENEW THE NOTE OR EXTEND THE MATURITY DATE OF THE NOTE).
GRADE D PAPER. The words "Grade D Paper" mean and include all Non-Prime
Auto Paper for which the Debtor is sent more than one statement per
calendar month and all other Non-Prime Auto Paper which otherwise conforms
to "D paper" grading standards for the non-prime automobile loan industry.
GRANTOR. The word "Grantor" means and includes individually, collectively,
interchangeably and without limitation each and all of the persons or
entities granting a Security Interest in any Collateral for the
Indebtedness, including without limitation each Borrower and each Guarantor
granting such a Security Interest.
GUARANTOR. The word "Guarantor" means and includes individually,
collectively, interchangeably and without limitation, SEARCH FINANCIAL
SERVICES INC., and each and all other guarantors, sureties, and
accommodation parties in connection with any Indebtedness.
INDEBTEDNESS. The word "Indebtedness" means and includes individually,
collectively, interchangeably and without limitation, any and all present
and future loans, extensions of credit, liabilities and/or obligations of
every nature and kind whatsoever that any Borrower may now and in the
future owe to or incur in favor of Lender and its successors or assigns,
including without limitation, the indebtedness of Borrowers in favor of
Lender under the Note, whether such loans, extensions of credit,
liabilities and/or obligations are direct or indirect, or by way of
assignment, and whether related or unrelated, or whether committed or
purely discretionary, and whether absolute or contingent, voluntary or
involuntary, determined or undetermined, liquidated or unliquidated, due or
to become due, together with interest, costs, expenses, attorneys' fees and
other fees and charges, whether or not any such Indebtedness may be barred
under any statute of limitations or may be otherwise unenforceable or
voidable for any reason.
LENDER. The word "Lender" means HIBERNIA NATIONAL BANK (TIN: ▇▇-▇▇▇▇▇▇▇),
its successors and assigns, and any subsequent holder or holders of the
Note, or any interest therein.
LINE OF CREDIT. The words "Line of Credit" mean the credit facility
described in the section titled "LINE OF CREDIT."
LOAN. The words "Loan" and "Loans" mean and include any and all loans and
financial accommodations from Lender to Borrowers (or any Borrower)
hereunder whether now or hereafter existing, and however evidenced,
including without limitation those loans and financial accommodations
described herein or described on any exhibit or schedule attached to this
Agreement from time to time, and further including any and all subsequent
amendments, additions, substitutions, renewals and refinancings of any
Loan.
NOTE. The word "Note" means the promissory note or notes of Borrowers
evidencing the principal and interest repayment obligations of Borrowers
under the Line of Credit, as well as any substitute, replacement or
refinancing note or notes therefor. The Note initially evidencing the Line
of Credit repayment obligations in favor of Lender shall be drawn for the
maximum dollar amount of the Borrowing Base, shall provide for interest at
the rate established for the Line of Credit, shall provide for payment, in
full, of all principal interest and other charges by no later than the
Expiration Date, and shall contain such other provisions (including,
without limitation, provisions relating to calculation of interest,
acceleration, default interest, cross-defaults, rights upon default,
payment application, and attorneys' fees) as customarily incorporated by
Lender in its commercial loan notes. ALTHOUGH THE WORD "NOTE" INCLUDES
REFINANCINGS, LENDER IS UNDER NO OBLIGATION TO RENEW THE NOTE OR EXTEND THE
MATURITY DATE OF THE NOTE OR ANY SUBSTITUTE, REPLACEMENT OR REFINANCING
NOTE OR NOTES THEREFOR.
NON-PRIME AUTO PAPER. The words "Non-Prime Auto Paper" mean a writing or
writings which evidence BOTH a monetary obligation of a natural person
incurred for personal, family, or household purposes AND a security
interest in, or a lease of, a motor vehicle as security for payment of the
monetary obligation. Non-Prime Auto Paper does not include (a) written
evidences of unsecured monetary obligations, (b)
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written evidences of monetary obligations secured by goods other than motor
vehicles, (c) obligations of legal entities, or (d) obligations incurred
for commercial or agricultural purposes.
PERMITTED LIENS. The words "Permitted Liens" mean (a) Security Interests
securing Indebtedness owed by Borrowers to Lender; (b) liens for taxes,
assessments, or similar charges either not yet due or being contested in
good faith; (c) liens of materialmen, mechanics, warehousemen, or carriers,
or other like liens securing obligations which were incurred prior to the
acquisition by any Borrower of the property subject to such liens; (d)
liens of materialmen, mechanics, warehousemen, or carriers, or other like
liens arising in the ordinary course of business and securing obligations
which are not yet delinquent or are being contested in good faith; and (e)
liens and security interests which, as of the date of this Agreement, have
been disclosed to and approved by Lender in writing.
RELATED DOCUMENTS. The words "Related Documents" mean and include
individually, collectively, interchangeably and without limitation all
promissory notes, credit agreements, loan agreements, guaranties, security
agreements, mortgages, collateral mortgages, deeds of trust, and all other
instruments, agreements, and documents, whether now or hereafter existing,
executed in connection with the Indebtedness.
SECURITY AGREEMENT. The words "Security Agreement" mean and include
individually, collectively, interchangeably and without limitation any
agreements, promises, covenants, arrangements, understandings or other
agreements, whether created by law, contract, or otherwise, evidencing,
governing, representing, or creating a Security Interest.
SECURITY INTEREST. The words "Security Interest" mean and include
individually, collectively, interchangeably and without limitation any and
all present and future mortgages, pledges, crop pledges, assignments and
other security agreements directly or indirectly securing the repayment of
the Note, whether created by law, contract, or otherwise.
APPLICATION FOR AND PURPOSE OF THE LOAN. Borrowers have applied to Lender for
a Loan in the aggregate principal amount of $25,000,000.00 for working capital.
LINE OF CREDIT. Lender agrees to make Advances to Borrowers from time to
time from the date of this Agreement to the Expiration Date, provided the
aggregate amount of such Advances outstanding at any time does not exceed the
Borrowing Base. Within the foregoing limits, Borrowers may borrow, partially
or wholly prepay, and reborrow under this Agreement as follows:
CONDITIONS PRECEDENT TO EACH ADVANCE. Lender's obligation to make the
initial Advance and any subsequent Advance to or for the account of
Borrowers under this Agreement is subject to the following conditions
precedent, with all documents, instruments, opinions, reports, and other
items required under this Agreement to be in form and substance
satisfactory to Lender:
(a) Lender shall have received evidence that this Agreement and all
other Related Documents have been duly authorized, executed, and
delivered by Borrowers to Lender, including, without limitation (i)
the Note, (ii) Security Agreements granting to Lender Security
Interests in the Collateral, (iii) Financing Statements perfecting
Lender's Security Interests; (iv) Custodian Agreements designating the
Lender approved custodians to take and maintain possession for Lender
of the Non-Prime Auto Paper and Consumer Paper of each Borrower whose
Non-Prime Auto Paper and Consumer Paper is not all held at Lender's
offices, (v) evidence of Insurance as required below; and (vi) any
other documents required under this Agreement or by Lender or its
counsel.
(b) Lender shall have received such opinions of counsel, supplemental
opinions, and documents as Lender may reasonably request.
(c) Lender shall have received such written opinions or agreements as
are reasonably acceptable to Lender and its counsel that the form of
note, security agreement, disclosure statement and other documents
used in connection with Non-Prime Auto Paper and Consumer Paper
originated by Borrowers complies and conforms with all applicable
laws, ordinances, rules, and regulations, which opinions or agreements
shall run in favor of Lender in the event Lender acquires ownership of
any of the Non-Prime Auto Paper and Consumer Paper originated by
Borrowers on the forms covered by the opinions or agreements.
(d) The Security Interests in the Collateral shall have been duly
authorized, created, and perfected with first lien priority, subject
to Permitted Liens, and shall be in full force and effect and Lender
shall have received evidence, acceptable to Lender, of the priority of
Lender's Security Interests in the Collateral as contemplated by this
Agreement.
(e) All guaranties required by Lender for the Line of Credit shall
have been executed by each Guarantor, delivered to Lender, and shall
be in full force and effect.
(f) Lender, at its option and for its sole benefit, shall have
conducted a review of the payment records, ledger sheets, and computer
tapes or disks kept to record payment information of Borrowers, and
other books, records, and operations of Borrowers, and Lender shall be
satisfied as to their condition.
(g) Borrowers shall have paid to Lender all fees, costs, and expenses
specified in this Agreement and the other Related Documents as are then
due and payable.
(h) The representations and warranties set forth in this Agreement, in
the other Related Documents, and in any document or certificate
delivered to Lender under this Agreement are true and correct in all
material respects.
(i) There shall not exist at the time of any Advance a condition which
would constitute an Event of Default under this Agreement, and
Borrowers shall have delivered to Lender the compliance certificate
called for in the paragraph below titled "Compliance Certificate."
MAKING LOAN ADVANCES. Advances under the Line of Credit, as well as
directions for payment from accounts of any Borrower, may be requested
orally or in writing by persons authorized, in writing, by any Borrower.
Lender may, but need not, require that all oral requests be confirmed in
writing. Each Advance shall be conclusively deemed to have been made at
the request of and for the benefit of each Borrower (a) when credited to
any deposit account of any Borrower maintained with Lender or (b) when
advanced in accordance with the instructions of an authorized person.
Lender, at its option, may set a cutoff time, not earlier than noon, New
Orleans time, after which all requests for Advances will be treated as
having been requested on the next succeeding Business Day.
INITIAL ADVANCE. The proceeds of the initial Advance under the Line Credit
shall be used to pay the full amounts due under all other lines of credit
extended by Lender to any Borrower and each Borrower agrees that once the
initial Advance is made under the Line of Credit provided for in this
Agreement, all other outstanding lines of credit from Lender to Borrowers
are terminated and Lender is not obligated to fund any advance requested
under any such other line of credit.
OVERLINES AND OVERADVANCES. In the event the unpaid principal amount of
the outstanding Advances under the Line of Credit ever exceeds the maximum
dollar amount of the Note ($25,000,000.00 ), Borrowers agree to pay the
excess amount (an "OVERLINE") within two (2) Business Days after notice
from Lender to Borrowers. In the event the unpaid principal amount of the
outstanding Advances under the Line
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of Credit ever exceeds the Borrowing Base, Borrowers agree to pay the
excess amount (an "OVERADVANCE") within two (2) Business Days after notice
from Lender to Borrowers. Overlines and overadvances shall bear interest
at the rate stated in the Note. If not sooner paid, interest on overlines
and overadvances shall be paid on the last day of each month, until the
Expiration Date. Upon request of Lender, Borrowers shall execute a
promissory note, payable to the order of Lender, to represent the amount of
any overline and any overadvance; however, Borrowers acknowledge and agree
that the records of Lender and this Agreement shall constitute conclusive
evidence, absent manifest error, of any overline or overadvance and the
obligation of Borrowers to repay any overline or overadvance, with
interest. All overlines and overadvances for which Lender has not demanded
payment earlier, and all unpaid and accrued interest on overlines and
overadvances not due and payable earlier, shall be due and payable on the
Expiration Date. BORROWERS ACKNOWLEDGE AND AGREE THAT LENDER IS NOT
OBLIGATED TO BORROWERS TO FUND ANY ADVANCE THAT WOULD CREATE AN OVERLINE OR
AN OVERADVANCE.
ADVANCES FOR INTEREST AND FEES. Borrowers hereby authorize Lender to make
Advances under the Line of Credit in amounts necessary to pay any and all
fees and charges provided for under this Agreement and in order to pay any
accrued interest due under the Note. Any such Advance may, at the option
of Lender, be funded directly to Lender or deposited into a deposit account
of any Borrower maintained with Lender (including a Dominion Account) which
account may then be debited by Lender for the amount of such Advances. If
no Event of Default has occurred, Lender hereby agrees to make all Advances
necessary to pay any and all fees and charges provided for under this
Agreement and in order to pay any accrued interest due under the Note even
if the Advance creates an Overline or an Overadvance, and Borrowers agree
to pay the amount of any such Overline or Overadvance within two (2)
Business Days after notice from Lender to Borrowers.
INTEREST. The outstanding and unpaid principal balance under the Note and
any overline and any overadvance shall bear interest at the rate stated in
the Note. Borrowers shall make payments of unpaid interest accrued on the
outstanding and unpaid principal balance under the Note as provided for in
the Note. All unpaid and accrued interest not due and payable earlier,
shall be due and payable on the Expiration Date.
MANDATORY PRINCIPAL REPAYMENTS. On the Expiration Date, Borrowers shall
pay to Lender in full the aggregate unpaid principal amount of all Advances
then outstanding and all accrued unpaid interest, together with all other
applicable fees, costs and charges, if any, not yet paid.
FACILITY CHARGES. Borrowers recognize that Lender has incurred and will
continue to incur certain costs and expenses in connection with
establishing, maintaining, servicing, and administering the Line of Credit.
To ensure that Lender is able to recover such costs and expenses, Borrowers
agree that, notwithstanding any other provision of this Agreement, the
Note, or the other Related Documents, Lender shall be entitled to collect
the following facility charges, which Borrowers hereby promise and agree to
pay:
COMMITMENT FEE. A commitment fee of $25,000.00, payable at the time
of the making of the initial Advance.
MONITORING FEE. A monitoring fee of $3,000.00 per month [$1,500.00
for Non-Prime Auto Paper and $1,500.00 for Consumer Paper] for each
month or portion of a month during the term of this Agreement. The
monitoring fee for a month is due and payable on the first day of the
following month.
ANNUAL RENEWAL FEE. An annual renewal fee of $62,500.00 [0.250% of
the maximum dollar amount of the Note - $25,000,000.00], payable, in
full, on each annual anniversary of this Agreement prior to the
Expiration Date.
COLLATERAL STORAGE AND SERVICE FEE. A collateral storage and service
fee of $500.00 per month for each month or portion of a month during
the term of this Agreement, due and payable on the first day of the
following month.
UNUSED FACILITY FEE. An unused facility fee, in addition to interest,
on the daily average unused portion of the Line of Credit [the "unused
portion" being the amount by which the maximum dollar amount of the
Note ($25,000,000.00) exceeds the outstanding principal balance due
under the Note] from the date of this Agreement through the Expiration
Date, at the rate of 0.070% per annum, payable for each three (3)
calendar month period (each calendar quarter), in arrears, fifteen
(15) days after the last day of each calendar quarter.
DUE DILIGENCE EXPENSES. All reasonable expenses incurred by Lender,
including Lender's reasonable attorneys' fees, for Lender's due
diligence, payable by Borrowers upon demand by Lender.
EARLY TERMINATION. Lender agrees that Borrowers shall have the right to
terminate this Agreement prior to the Expiration Date upon Borrowers (a)
giving Lender ninety (90) days' written notice of termination and
designating a termination effective date, (b) paying Lender, on the
designated termination effective date, the aggregate unpaid principal
amount of all Advances then outstanding and all accrued unpaid interest,
together with all other applicable fees, costs and charges, if any, not yet
paid, AND (c) paying Lender, on the designated termination effective date,
a commitment cancellation charge equal to (i) 4.000% of the maximum dollar
amount of the Note [$25,000,000.00] if the early termination date occurs
during the first year after the date of the Note, (ii) 3.000% of the
maximum dollar amount of the Note if the early termination occurs during
the second year after the date of the Note, and (iii) 1.000% of the maximum
dollar amount of the Note if the early termination occurs during the third
year after the date of the Note. In the event, after the date of this
Agreement, a renewal or substitute Note is executed to represent the Line
of Credit indebtedness, these commitment cancellation charges shall apply
during the term of the renewal or substitute Note (i.e., the "date of the
Note" for purposes determining commitment cancellation charges shall be the
date of the renewal or substitute Note), unless the renewal or substitute
Note specifically provides otherwise.
LOAN ACCOUNT. Lender shall maintain on its books a record of account in
which Lender shall make entries for each Advance and such other debits and
credits as shall be appropriate in connection with the Line of Credit.
Lender shall provide Borrowers with periodic statements of the loan account
of Borrowers, which statements shall be considered to be correct and
conclusively binding on Borrowers, absent manifest error, unless Borrowers
notify Lender to the contrary within thirty (30) days after the receipt by
Borrowers of any such statement which Borrowers deem to be incorrect.
COLLATERAL. To secure payment of the Line of Credit and performance of all
other Loans, obligations and duties owed by Borrowers to Lender, Borrowers
shall grant to Lender Security Interests in the present and future chattel
paper, instruments, accounts, inventory, documents and general intangibles of
Borrowers (the "COLLATERAL"). Lender's Security Interests in the Collateral
shall be continuing liens and shall include the proceeds and products of the
Collateral, including without limitation the proceeds of any insurance. With
respect to the Collateral, Borrowers agree and represent and warrant to Lender:
PERFECTION OF SECURITY INTERESTS. Borrowers agree to execute such financing
statements and to take whatever other actions are requested by Lender to
perfect and continue Lender's Security Interests in the Collateral and agree
to deliver possession to Lender, or to a custodian approved in writing by
Lender, of all property included in the Collateral for which possession by
Lender is necessary to perfect and continue Lender's Security Interests.
Lender acknowledges and agrees that delivery of certificates of title to
motor vehicles in which a security interest has been granted as security for
the payment of Non-Prime Auto Paper are not necessary by law to perfect and
continue Lender's Security Interests in the Collateral. Contemporaneous
with the execution of this Agreement, each Borrower will execute one or more
UCC financing
6
10-06-1997 LOAN AGREEMENT PAGE 6
LOAN NO. (CONTINUED)
================================================================================
statements and any similar statements as may be required by applicable law,
and will file such financing statements and all such similar statements in
the appropriate location or locations. Each Borrower hereby appoints
Lender as its irrevocable attorney-in-fact for the purpose of executing any
documents necessary to perfect or to continue any Security Interest.
Lender may at any time, and without further authorization from any
Borrower, file a carbon, photograph, facsimile, or other reproduction of
any financing statement for use as a financing statement. Borrowers will
reimburse Lender for all expenses for the perfection, termination, and the
continuation of the perfection of Lender's Security Interest in the
Collateral. Borrowers promptly will notify Lender of any change in the name
of any Borrower including any change to the assumed business names of any
Borrower. Borrowers also promptly will notify Lender of any change in the
Employer Identification Number of any Borrower. Borrowers further agree to
notify Lender in writing prior to any change in address or location of the
chief executive office of any Borrower or should any Borrower merge or
consolidate with any other entity.
CROSS COLLATERALIZATION. Each Borrower acknowledges that all collateral of
each Borrower is collateral for all Loans made under this Agreement.
DELIVERY AND POSSESSION OF ELIGIBLE PAPER. Each Borrower shall deliver
to Lender, or to a custodian approved in writing by Lender, all original
instruments representing all Eligible Non-Prime Auto Paper and all Consumer
Paper. Upon request of Lender, each Borrower shall deliver to Lender, or
to a custodian approved in writing by Lender, all other Eligible Non-Prime
Auto Paper and Consumer Paper documentation, including, without limitation,
all original disclosure statements, security agreements, financing
statements (unless financing statements are filed in which event Lender
will be provided with a copy showing filing information), and all other
supporting documentation. Also, upon request of Lender, Borrowers shall
deliver the original certificates of title to all motor vehicles in which a
security interest has been granted as security for the payment of Non-Prime
Auto Paper. With respect to Borrowers, Lender and any custodian shall be
deemed to have exercised reasonable care in the custody and preservation of
all Non-Prime Auto Paper and Consumer Paper documents (including
instruments and certificates of title) in the possession of Lender or any
custodian if Lender or the custodian takes such action for that purpose as
any Borrower shall request or as Lender, in Lender's sole discretion, or
the custodian shall deem appropriate under the circumstances, but failure
to honor any request by any Borrower shall not of itself be deemed to be a
failure to exercise reasonable care. Lender shall not be required to take
any steps necessary to preserve any rights in any Non-Prime Auto Paper or
any Consumer Paper against Debtors or other parties, nor to protect,
preserve or maintain any security interest evidenced by any Non-Prime Auto
Paper or securing any Consumer Paper. In the event any Eligible Non-Prime
Auto Paper or any Consumer Paper is held by a custodian, each Borrower
shall (a) execute a Custodian Agreement, in form and substance satisfactory
to Lender, by which the custodian is appointed to hold Non-Prime Auto
Paper and Consumer Paper for the benefit of Lender, and (b) affix and
maintain a conspicuous legend to all Non-Prime Auto Paper and Consumer
Paper delivered to the custodian clearly identifying the Non-Prime Auto
Paper and Consumer Paper as subject to a security interest in favor of
Lender.
INSPECTION AND EXAMINATION BY GOVERNMENTAL AGENCIES. Lender agrees to
allow, and agrees to direct any custodian acting for Lender to allow,
inspection and examination of all Non-Prime Auto Paper and Consumer Paper
and Non-Prime Auto Paper and Consumer Paper records by all governmental
agencies with regulatory powers over Borrowers, as and where required by
such agencies (including, if necessary, returning Non-Prime Auto Paper and
Consumer Paper and Non-Prime Auto Paper and Consumer Paper records to the
jurisdiction of origination). All costs incurred by Lender or any
custodian in connection with any such governmental agency inspection or
examination will be paid by Borrowers.
COLLATERAL SCHEDULES. Concurrently with the delivery of each Non-Prime
Auto Paper package and each Consumer Paper package under this Agreement,
Borrowers shall execute and deliver to Lender a statement for each package
identifying the current principal balance and next payment due, and such
other information as Lender may request, all in form and substance
satisfactory to Lender. Thereafter and at such frequency as Lender shall
require, Borrowers shall execute and deliver to Lender such supplemental
statements and such other matters and information relating to the Non-Prime
Auto Paper and Consumer Paper as Lender may request.
COLLATERAL RECORDS. Borrowers do now, and at all times hereafter shall,
keep correct and accurate records of the Collateral and all payment and
balance information, all of which records shall be available to Lender or
Lender's representative upon demand for inspection and copying at any
reasonable time. With respect to the Non-Prime Auto Paper and the Consumer
Paper, Borrowers agree to keep and maintain such balance and payment
history records as Lender may reasonably require, including, without
limitation, delinquency information.
REPRESENTATIONS AND WARRANTIES CONCERNING NON-PRIME AUTO PAPER. With
respect to the Non-Prime Auto Paper, Borrowers represent and warrant to
Lender: (a) all present Non-Prime Auto Paper represents, and all future
Non-Prime Auto Paper will represent, loans acquired by SEARCH FUNDING II,
INC., in the ordinary course of its business, and in compliance and
conformity with all applicable federal, state and local laws, ordinances,
rules, and regulations, (b) all Non-Prime Auto Paper represented by
Borrowers to be Eligible Non-Prime Auto Paper for purposes of this
Agreement conforms to the requirements of the definition of Eligible
Non-Prime Auto Paper; (c) all Non-Prime Auto Paper information listed on
schedules delivered to Lender will be true and correct, subject to
immaterial variance; and (d) Lender, its assigns, or agents shall have the
right at any time to inspect, examine, and review the records of Borrowers
and to verify and confirm with Debtors the accuracy of such Non-Prime Auto
Paper information, and Borrowers agree to reimburse Lender for all of
Lender's reasonable out-of-pocket expenses incurred in connection with any
such inspection, examination, or review (excluding personnel costs of
Lender or personnel costs of any independent contractor retained by Lender
to conduct or assist in any such inspection, examination, or review).
REPRESENTATIONS AND WARRANTIES CONCERNING CONSUMER PAPER. With respect
to the Consumer Paper, Borrowers represent and warrant to Lender: (a) all
present Consumer Paper represents, and all future Consumer Paper will
represent, loans originated or acquired by Borrowers in the ordinary course
of the business of Borrowers and in compliance and conformity with all
applicable federal, state and local laws, ordinances, rules, and
regulations, (b) all Consumer Paper represented by Borrowers to be Eligible
Consumer Paper for purposes of this Agreement conforms to the requirements
of the definition of Eligible Consumer Paper; (c) all Consumer Paper
information listed on schedules delivered to Lender will be true and
correct, subject to immaterial variance; and (d) Lender, its assigns, or
agents shall have the right at any time to inspect, examine, and review the
records of Borrowers and to verify and confirm with Debtors the accuracy of
such Consumer Paper information, and Borrowers agree to reimburse Lender
for all of Lender's reasonable out-of-pocket expenses incurred in
connection with any such inspection, examination, or review (excluding
personnel costs of Lender or personnel costs of any independent contractor
retained by Lender to conduct or assist in any such inspection,
examination, or review).
RIGHT TO COLLECT. Borrowers may collect amounts due under any Non-Prime
Auto Paper and any Consumer Paper, subject to the obligation of Borrowers
to deposit all collections in a Dominion Account. At any time after any
Event of Default occurs, Lender may exercise its rights to collect the
Non-Prime Auto Paper and the Consumer Paper and to notify Debtors to make
payments directly to Lender for application to the Indebtedness.
RELEASE OF COLLATERAL. Borrowers may apply to Lender for a release of
Collateral from the Security Interests in connection with a sale of
Collateral outside of the ordinary course of business or in bulk. The
release application will identify the Collateral to be sold, the gross
sales price, an itemization of sales price attributed to the Collateral
sold if the sale includes property of persons or entities other than
Borrowers, the net sale proceeds to be deposited into the Dominion Account,
and such other information as Lender may reasonably request. Lender agrees
to approve a release request if (a) no Overline shall be created or
increased under the Line of Credit after the sale and the net sales
proceeds attributable to the Collateral sold are deposited into the
Dominion Account, (b) no Event of Default has occurred and the sale will
7
10-06-1997 LOAN AGREEMENT PAGE 7
LOAN NO. (CONTINUED)
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not result in the occurrence of an Event of Default, and (c) the effect of
the sale on the financial condition of Borrowers and Guarantors will not
result in a breach of any of the Financial Covenants contained in this
Agreement. Any approval by Lender of a requested release will be evidenced
by a separate writing and shall be effective upon the deposit of the net
sale proceeds attributable to the Collateral sold, in good funds, into the
Dominion Account. Lender agrees to execute all appropriate release
documents for an approved release request and agrees to deliver the
executed release documents to Borrowers, or the designee of Borrowers, upon
deposit of the net sale proceeds attributable to the Collateral sold into
the Dominion Account or, if requested by Borrowers or the Collateral
purchaser, to allow the executed release documents to be held by an escrow
agent pending deposit of the net sales proceeds attributable to the
Collateral sold into the Dominion Account.
DOMINION ACCOUNT. Borrowers shall establish and maintain one or more deposit
accounts with Lender or with a bank designated by Lender ("DOMINION ACCOUNT")
into which Borrowers shall deposit, daily, all amounts paid on any Non-Prime
Auto Paper and any Consumer Paper and from sales of any of the Collateral. All
deposits shall be made, in kind, no later than the first Business Day after
receipt by any Borrower. Borrowers shall have no right to draw upon any
Dominion Account. On the second Business Day after a deposit into a Dominion
Account, the amount of the deposit shall be drawn from the Dominion Account by
Lender and applied to repayment of the Loan.
LOCK BOX. Borrowers agree to instruct, in writing, all Debtors and others
responsible for making payments on Non-Prime Auto Paper or on Consumer Paper
and other amounts due to any Borrower to make all payments to an address
selected by Lender. Lender also has the independent right, but not a duty, to
notify Debtors and others responsible for making payments on Non-Prime Auto
Paper, on Consumer Paper, or on other amounts due to any Borrower to make all
payments to the address selected by Lender. All payments received by Lender
and all payments received by any Borrower will be deposited, daily, into a
Dominion Account. All deposits of payments received by Lender shall be made to
a Dominion Account no later than the first Business Day after receipt by
Lender.
REPRESENTATIONS AND WARRANTIES. Each Borrower represents and warrants to
Lender as of the date of this Agreement and as of the date of each disbursement
of Loan proceeds:
ORGANIZATION. SEARCH FUNDING II, INC., is a corporation which is duly
organized, validly existing, and in good standing under the laws of the
State of Texas, and is duly qualified to do business in, and in good
standing under the laws of, Arizona, Colorado, Florida, Georgia, Indiana,
Kansas, Mississippi, Missouri, North Carolina, Ohio, Oklahoma, South
Carolina, Tennessee, Utah and Virginia. SEARCH FUNDING II, INC., is not
qualified to do and is not doing business in any other jurisdiction.
SEARCH FINANCIAL SERVICES HOLDING COMPANY, is a corporation which is duly
organized, validly existing, and in good standing under the laws of the
State of Texas. SEARCH FINANCIAL SERVICES HOLDING COMPANY, is not
qualified to do and is not doing business in any other jurisdiction.
SEARCH FINANCIAL SERVICES OF FLORIDA, INC., is a corporation which is duly
organized, validly existing, and in good standing under the laws of the
State of Texas, and is duly qualified to do business in, and in good
standing under the laws of Florida and Texas. SEARCH FINANCIAL SERVICES OF
FLORIDA, INC., is not qualified to do and is not doing business in any
other jurisdiction. SEARCH FINANCIAL SERVICES OF GEORGIA, INC., is a
corporation which is duly organized, validly existing, and in good standing
under the laws of the State of Texas, and is duly qualified to do business
in, and in good standing under the laws of Georgia and Texas. SEARCH
FINANCIAL SERVICES OF GEORGIA, INC., is not qualified to do and is not
doing business in any other jurisdiction. SEARCH FINANCIAL SERVICES OF
LOUISIANA, INC., is a corporation which is duly organized, validly
existing, and in good standing under the laws of the State of Louisiana.
SEARCH FINANCIAL SERVICES OF LOUISIANA, INC., is not qualified to do and is
not doing business in any other jurisdiction. SEARCH FINANCIAL SERVICES OF
OKLAHOMA, INC., is a corporation which is duly organized, validly existing,
and in good standing under the laws of the State of Texas, and is duly
qualified to do business in, and in good standing under the laws of
Oklahoma and Texas. SEARCH FINANCIAL SERVICES OF OKLAHOMA, INC., is not
qualified to do and is not doing business in any other jurisdiction.
SEARCH FINANCIAL SERVICES OF PUERTO RICO, INC., is a corporation which is
duly organized, validly existing, and in good standing under the laws of
Puerto Rico, and is duly qualified to do business in, and in good standing
under the laws of Puerto Rico. SEARCH FINANCIAL SERVICES OF PUERTO RICO,
INC., is not qualified to do and is not doing business in any other
jurisdiction. SEARCH FINANCIAL SERVICES OF TENNESSEE, INC., is a
corporation which is duly organized, validly existing, and in good standing
under the laws of the State of Texas, and is duly qualified to do business
in, and in good standing under the laws of Tennessee and Texas. SEARCH
FINANCIAL SERVICES OF TENNESSEE, INC., is not qualified to do and is not
doing business in any other jurisdiction. SEARCH FINANCIAL SERVICES OF
TEXAS, INC., is a corporation which is duly organized, validly existing,
and in good standing under the laws of the State of Texas. SEARCH
FINANCIAL SERVICES OF TEXAS, INC., is not qualified to do and is not doing
business in any other jurisdiction.
AUTHORIZATION. The execution, delivery and performance of this Agreement
by each Borrower has been duly authorized, and does not conflict with, and
will not result in a violation of, or constitute or give rise to an event
of default under the Articles of Incorporation or Bylaws of any Borrower,
or any agreement or other instrument which may be binding upon any
Borrower, or under any law or governmental regulation or court decree or
order applicable to any Borrower and/or its properties. Each Borrower has
the power and authority to enter into the Loan, to execute the Note and to
grant collateral security therefor. Each Borrower has the further power
and authority to own and to hold all of its assets and properties, and to
carry on its business as presently conducted.
STOCK OWNERSHIP. SEARCH FUNDING II, INC., and SEARCH FINANCIAL SERVICES
HOLDING COMPANY is each a wholly owned subsidiary of SEARCH FINANCIAL
SERVICES INC., a Delaware corporation that is a Guarantor of the
Indebtedness. All other Borrowers are wholly owned subsidiaries of SEARCH
FINANCIAL SERVICES HOLDING COMPANY.
FIDUCIARY OBLIGATION OF BORROWERS. Each Borrower shall act in a fiduciary
capacity as to Lender with regard to receipt and collection by each
Borrower, in trust for and on behalf of Lender, of any and all amounts paid
on the Collateral. ALL AMOUNTS PAID ON THE COLLATERAL SHALL BE DEPOSITED
INTO A DOMINION ACCOUNT. Any diversion or use by any Borrower of any
portion of any amount paid on the Collateral shall constitute an Event of
Default.
FINANCIAL INFORMATION. The annual audited financial statements furnished
to Lender by Borrowers are and were prepared in accordance with generally
accepted accounting principles. The other financial statements furnished
to Lender by Borrowers are and were prepared in accordance with generally
accepted accounting principles (with the exception of year-end adjustments
and footnoting), and all fairly present, in all material respects, the
financial condition and solvency of the entity or consolidated group to
which they relate as of the date thereof. To the best of the knowledge of
Borrowers, no Borrower has any contingent obligations or liabilities that
were not disclosed or reserved against in the financial statements of
Borrowers or in the notes thereto. Since the dates of such financial
statements, there has been no material adverse change in the financial
condition or business of any Borrower.
DEBT OF BORROWERS. With the exception of indebtedness owed to others to be
paid with the first Advance under the Line of Credit, no Borrower has any
obligation for borrowed money, including capital leases, other than (a)
trade debt incurred in the normal course of business, (b) indebtedness of
any Borrower to others that is subordinated by written agreement to the
Indebtedness, and (c) indebtedness to Lender under this Agreement.
PROPERTIES. Except with respect to Permitted Liens, Borrowers own and have
good title to all of the properties of Borrowers free and clear of all
security interests, and no Borrower has executed any security documents or
financing statements relating to such properties. All of the properties of
Borrowers are titled in the legal name of Borrowers, and no Borrower has
used, or filed a financing statement under, any other name (other than the
former names of each Borrower disclosed in this Agreement) for at least the
last five (5) years. Lender
8
10-06-1997 LOAN AGREEMENT PAGE 8
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recognizes, however, that Borrowers may elect not to apply for registration
of a certificate of title to any repossessed motor vehicle if, under
applicable law, Borrowers are allowed to resell the repossessed vehicle
without such registration.
HAZARDOUS SUBSTANCES. The terms "hazardous waste," "hazardous substance,"
"disposal," "release," and "threatened release," as used in this Agreement,
shall have the same meanings as set forth in the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C.
Section - 9601, et seq. ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1986, Pub.L.No.99-499 ("▇▇▇▇"), the Hazardous
Materials Transportation Act, 49 U.S.C. Section - 1801, et seq., the
Resource Conservation and Recovery Act, 42 U.S.C. ?6901, et seq., or other
applicable federal, state or local laws, regulations, rules or ordinances
adopted pursuant to any of the foregoing. Except as disclosed to and
acknowledged by Lender in writing, Borrowers agree, represent and warrant
that: (a) during the period of ownership by any Borrower of the properties
of any Borrower, there has been no use, generation, manufacture, storage,
treatment, disposal, release or threatened release of any hazardous waste or
substance by any person on, under, or about any of the properties; (b) no
Borrower has any knowledge of, or reason to believe that there has been (i)
any use, generation, manufacture, storage, treatment, disposal, release, or
threatened release of any hazardous waste or substance by any prior owners
or occupants of any of the properties, or (ii) any actual or threatened
litigation or claims of any kind by any person relating to such matters; and
(c) neither any Borrower nor any tenant, contractor, agent or other
authorized user of any of the properties shall use, generate, manufacture,
store, treat, dispose of, or release any hazardous waste or substance on,
under, or about any of the properties; and any such activity shall be
conducted in compliance with all applicable federal, state and local laws,
regulations, rules and ordinances, including without limitation those laws,
regulations, rules and ordinances described above. Borrowers authorize
Lender and its agents to enter upon the properties to make such inspections
and tests as Lender may deem appropriate to determine compliance of the
properties with this section of this Agreement. Any inspections or tests
made by Lender shall be at the expense of Borrowers and for the purposes of
Lender only and shall not be construed to create any responsibility or
liability on the part of Lender to any Borrower or to any other person. The
representations and warranties contained herein are based on the due
diligence of Borrowers in investigating the properties for hazardous waste.
Each Borrower hereby (i) releases and waives any future claims against
Lender for indemnity or contribution in the event any Borrower becomes
liable for cleanup or other costs under any such laws, and (ii) agrees to
indemnify and hold harmless Lender against any and all claims, losses,
liabilities, damages, penalties, and expenses which Lender may directly or
indirectly sustain or suffer resulting from a breach of this section of the
Agreement or as a consequence of any use, generation, manufacture, storage,
disposal, release or threatened release occurring prior to the ownership by
any Borrower or interest of any Borrower in the properties, whether or not
the same was or should have been known to any Borrower. The provisions of
this section of the Agreement, including the obligation to indemnify, shall
survive the payment of the Indebtedness and the termination or expiration of
this Agreement and shall not be affected by Lender's acquisition of any
interest in any of the properties, whether by foreclosure or otherwise.
LITIGATION. There are no suits or proceedings pending, or to the knowledge
of Borrowers, threatened against or affecting any Borrower, any Guarantor,
or the assets of any Borrower or any Guarantor, before any court or by any
governmental agency, other than those previously disclosed in documents
filed by any Borrower or any Guarantor with the Securities and Exchange
Commission and delivered to Lender by any Borrower or any Guarantor, which,
if adversely determined, may have a material adverse effect on the
financial condition or business of any Borrower or any Guarantor.
TAXES. To the best of the knowledge of Borrowers, all tax returns and
reports of each Borrower that are or were required to be filed, have been
filed, and all taxes, assessments and other governmental charges have been
paid in full, except those presently being or to be contested by Borrowers
in good faith in the ordinary course of business and for which adequate
reserves have been provided.
LIEN PRIORITY. Unless otherwise previously disclosed to Lender in writing,
no Borrower has entered into or granted any security agreements, or
permitted the filing or attachment of any security interests on or
adversely affecting any of the Collateral directly or indirectly securing
repayment of any of the Indebtedness, that would be prior or that may in
any way be superior to Lender's Security Interests and rights in and to
such Collateral, except with respect to Permitted Liens.
BINDING EFFECT. This Agreement, the Note and all Security Agreements
directly or indirectly securing repayment of the Indebtedness are binding
upon each Borrower as well as upon the successors, representatives and
assigns of each Borrower, and are legally enforceable in accordance with
their respective terms.
COMMERCIAL PURPOSES. Borrowers intend to use the Loan proceeds solely for
business or commercial related purposes.
EMPLOYEE BENEFIT PLANS. Each employee benefit plan as to which any
Borrower may have any liability complies in all material respects with all
applicable requirements of law and regulations, and (a) no Reportable Event
nor Prohibited Transaction (as defined in ERISA) has occurred with respect
to any such plan, (b) no Borrower has withdrawn from any such plan or
initiated steps to do so, and (c) no steps have been taken to terminate any
such plan.
LOCATION OF REGISTERED OFFICES. The registered office of each Borrower is
as follows (or as Borrowers may otherwise notify Lender as required by this
Agreement):
SEARCH FUNDING II, INC., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇.▇.▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
SEARCH FINANCIAL SERVICES HOLDING COMPANY, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
SEARCH FINANCIAL SERVICES OF FLORIDA, INC., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
SEARCH FINANCIAL SERVICES OF GEORGIA, INC., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
SEARCH FINANCIAL SERVICES OF LOUISIANA, INC., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SEARCH FINANCIAL SERVICES OF OKLAHOMA, INC., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, L.B. 123, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
SEARCH FINANCIAL SERVICES OF PUERTO RICO, INC., 105 ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇ ▇▇▇), ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
SEARCH FINANCIAL SERVICES OF TENNESSEE, INC., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
SEARCH FINANCIAL SERVICES OF TEXAS, INC., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, L.B. 123, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
LOCATION OF CHIEF EXECUTIVE OFFICES. The chief executive office of each
Borrower [as pertinent under La.-R.S. 10:9- 103(3)(d) and similar
applicable laws] is at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, L.B. 123,
DALLAS, TEXAS 75201- 2899, or as Borrower may otherwise notify Lender as
required by this Agreement.
LOCATION OF RECORDS. Each Borrower keeps its records concerning any of the
Collateral at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, L.B. ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, or as Borrower may otherwise notify Lender as required by this
Agreement. Each Borrower, other than SEARCH FUNDING II, INC., hereby
notifies Lender that it keeps records concerning Collateral at its branch
offices in the jurisdiction in which it does business.
TAX IDENTIFICATION NUMBER. The Tax Identification Numbers of Borrowers are
as follows (which are the only Tax Identification Numbers used by Borrowers
during the last ten (10) years):
9
10-06-1997 LOAN AGREEMENT PAGE 9
LOAN NO. (CONTINUED)
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SEARCH FUNDING II, INC. - ▇▇-▇▇▇▇▇▇▇
SEARCH FINANCIAL SERVICES HOLDING COMPANY - ▇▇-▇▇▇▇▇▇▇
SEARCH FINANCIAL SERVICES OF FLORIDA, INC. - ▇▇-▇▇▇▇▇▇▇
SEARCH FINANCIAL SERVICES OF GEORGIA, INC. - ▇▇-▇▇▇▇▇▇▇
SEARCH FINANCIAL SERVICES OF LOUISIANA, INC. - ▇▇-▇▇▇▇▇▇▇
SEARCH FINANCIAL SERVICES OF OKLAHOMA, INC. - ▇▇-▇▇▇▇▇▇▇
SEARCH FINANCIAL SERVICES OF PUERTO RICO, INC. - ▇▇-▇▇▇▇▇▇▇
SEARCH FINANCIAL SERVICES OF TENNESSEE, INC. - ▇▇-▇▇▇▇▇▇▇
SEARCH FINANCIAL SERVICES OF TEXAS, INC. - ▇▇-▇▇▇▇▇▇▇
TRADE NAMES. No Borrower operates any of its businesses under any trade
name, nor has any Borrower operated any of its businesses under any trade
name for a period of ten (10) years preceding the date of this Agreement,
other than as follows:
SEARCH FUNDING II, INC. former names: SEARCH AUTOMOBILE LEASING
CORPORATION, HASSLEFREE FINANCE CORP., and AUTOMOBILE CREDIT
FINANCE CORPORATION, SERIES 1994-I
SEARCH FINANCIAL SERVICES HOLDING COMPANY former name: SEARCH
FINANCIAL SERVICES COMPANY
INFORMATION. All information heretofore or contemporaneously herewith
furnished by Borrowers to Lender for the purposes of or in connection with
this Agreement or any transaction contemplated hereby is, and all
information hereafter furnished by or on behalf of Borrowers to Lender will
be, true and accurate in every material respect on the date as of which
such information is dated or certified; and none of such information is or
will be incomplete by omitting to state any material fact necessary to make
such information not misleading.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Borrowers understand and agree
that Lender is relying upon the above representations and warranties in
making the above referenced Loan and extending Advances to Borrowers.
Borrowers further agree that the foregoing representations and warranties
shall be continuing in nature and shall remain in full force and effect
until such time as the Note shall be paid in full, or until the Expiration
Date, whichever is the last to occur.
AFFIRMATIVE COVENANTS. Each Borrower covenants and agrees with Lender that,
so long as this Agreement remains in effect, each Borrower will:
BUSINESS IN OTHER JURISDICTIONS. Promptly inform Lender in writing of the
election of any Borrower to do business in any jurisdiction other than the
jurisdiction of its incorporation, any jurisdiction in which it is
qualified to do business as set forth under the REPRESENTATIONS AND
WARRANTIES - Organization section of this Agreement, or such other
jurisdiction in which Lender has a first priority perfected Security
Interest in the Collateral of that Borrower. Upon request of Lender, each
Borrower agrees to execute such financing statements and to take whatever
other actions are requested by Lender to perfect and continue the Security
Interests of Lender in the Collateral for any other jurisdiction.
CHANGES IN FINANCIAL CONDITION AND LITIGATION. Promptly inform Lender in
writing of (a) all material adverse changes in the financial condition of
any Borrower or any Guarantor, and (b) the threat of, the institution of,
or any adverse determination by final judgment in, any litigation,
arbitration proceeding or governmental proceeding which could reasonably be
expected to involve a claim against any Borrower or any Guarantor for more
than $100,000.00.
FINANCIAL RECORDS. Maintain its books and records in accordance with
generally accepted accounting principles, applied on a consistent basis,
and permit Lender to examine and review its books and records at all
reasonable times.
FINANCIAL REPORTS. Prepare all annual financial statements and reports
required to be provided under this Agreement in accordance with generally
accepted accounting principles, applied on a consistent basis and prepare
all other financial statements and reports required to be provided under
this Agreement in accordance with generally accepted accounting principles
(with the exception of year-end adjustments and footnoting), applied on a
consistent basis, and each statement and report shall be certified as being
true and correct, in all material respects, to the best knowledge and
belief, by the chief financial officer of the entity for which the report
was prepared or other person acceptable to Lender.
ANNUAL FINANCIAL STATEMENTS - SEARCH FINANCIAL SERVICES. Without demand
or request by Lender, furnish Lender with, as soon as available, but in no
event later than one hundred twenty (120) calendar days after the end of
each fiscal year, fiscal year-end financial statements for SEARCH FINANCIAL
SERVICES INC., the parent corporation of Borrowers. The fiscal year-end
statements shall be furnished in the form of consolidated statements for
SEARCH FINANCIAL SERVICES INC. and all of its subsidiaries, including
Borrowers, and shall include consolidated balance sheet, consolidated
income statement and consolidated statement of cash flows, with detailed
schedules for each consolidated company attached, and shall be audited by a
certified public accountant satisfactory to Lender and accompanied by the
unqualified opinion of the certified public accountant. The certified
public accounting firm of BDO ▇▇▇▇▇▇▇ shall be qualified as a certified
public accountant satisfactory to Lender.
MONTHLY FINANCIAL STATEMENTS - BORROWERS. Without demand or request by
Lender, furnish Lender with, as soon as available, but in no event later
than twenty (20) calendar days after the end of each calendar month,
month-end financial statements for each Borrower (including balance sheet
and income statement) for the prior month, prepared and certified as
correct, in all material respects, subject to year-end and quarter-end
adjustments, to the best knowledge and belief, by the chief financial
officer of each Borrower or other person acceptable to Lender.
MONTHLY FINANCIAL STATEMENTS - SEARCH FINANCIAL SERVICES. Without demand
or request by Lender, furnish Lender with, as soon as available, but in no
event later than twenty (20) calendar days after the end of each calendar
month, month-end financial statements (including balance sheet and income
statement) for the parent corporation of Borrowers, SEARCH FINANCIAL
SERVICES INC., prepared in the form of consolidated statements for the
parent corporation and all of its subsidiaries, including Borrowers, for
the prior month, prepared and certified as correct, in all material
respects, subject to year-end and quarter-end adjustments, to the best
knowledge and belief, by the chief financial officer of SEARCH FINANCIAL
SERVICES INC., or other person acceptable to Lender.
MONTHLY RECEIVABLES AGING SCHEDULES. Without demand or request by
Lender, furnish Lender with, as soon as available, but in no event later
than fifteen (15) calendar days after the end of each calendar month, a
schedule of the receivables of each Borrower (including chattel paper,
instruments and accounts) by account debtor, with aging. Each monthly
receivables schedule shall be prepared by each Borrower and certified as
correct, in all material respects, to the best knowledge and belief, by the
chief financial officer of each Borrower or other person acceptable to
Lender, and shall be in form and content acceptable to Lender. The
combined gross amount of receivables of Borrowers shown on monthly
receivables reports must be equal to the combined amount of receivables
shown on the monthly financial statements of Borrowers prepared for the
same month-end. THESE SCHEDULES SHALL BE PROVIDED IN WRITTEN AND
ELECTRONIC MEDIA FORM AND FORMAT ACCEPTABLE TO LENDER.
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10-06-1997 LOAN AGREEMENT PAGE 10
LOAN NO. (CONTINUED)
================================================================================
BORROWING BASE CERTIFICATES. Without demand or request by Lender, by noon
of each day Borrowers make a request for an Advance under the Line of
Credit, by noon on the Wednesday following a week during which no Advance
under the Line of Credit was requested, and at such other times as Lender
may request, furnish Lender with a Borrowing Base Certificate, in
reasonable detail and in form and content acceptable to Lender, prepared by
Borrowers and certified as correct, to the best knowledge and belief, by
the chief financial officer of Borrowers or other person acceptable to
Lender, identifying the calculation of the Borrowing Base utilizing balance
and eligibility information current as of the date the Borrowing Base
Certificate is furnished to Lender.
WEEKLY RECEIPTS SCHEDULES. Without demand or request by Lender, within
four (4) Business Days after the end of each week and at such other times
as Lender may request, furnish Lender with weekly receipts schedules
identifying, in detail, each payment included in each Dominion Account
deposit made by each Borrower during the prior week. Weekly receipt
schedules shall be prepared by Borrowers and certified as correct, to the
best knowledge and belief, by the chief financial officer of Borrowers or
other person acceptable to Lender, and shall be in form and content
acceptable to Lender.
TAX RETURNS. Upon request of Lender, furnish Lender with copies of the
most current federal tax returns filed by each Borrower and each Guarantor,
with all schedules and supporting documentation.
PUBLIC DOCUMENTS. Without demand or request by Lender, within thirty (30)
calendar days of the filing of each, furnish Lender with copies of the
10-K, 10-Q, and each other document filed by each Borrower and each
Guarantor with the Securities and Exchange Commission.
ADDITIONAL INFORMATION. Furnish such additional information, statements
and reports with respect to the financial condition and business operations
of Borrowers and Guarantors as Lender may reasonably request from time to
time.
VEHICLE TITLES. Secure original certificates of title to all motor
vehicles in which a security interest has been granted as security for the
payment of Non-Prime Auto Paper and, upon request of Lender, allow
inspection of all such original certificates of title or deliver possession
of such original certificates of title to Lender, as requested by Lender.
Lender acknowledges that an affiliate of Borrowers, rather than a Borrower,
may be reflected as the secured party or lienholder on a certificate of
title although the Non-Prime Auto Paper evidencing the security interest
referred to on such certificate has been assigned to any Borrower.
NOTICE TO DEBTORS. Notify, in writing, all present and future Debtors and
others responsible for payment on any Non-Prime Auto Paper or any Consumer
Paper, to send all payments on Non-Prime Auto Paper or Consumer Paper to
the Lock Box address selected by Lender.
INSURANCE. Maintain public liability insurance in form, amounts, coverages
and with insurance companies reasonably acceptable to Lender. Borrowers,
upon request of Lender, will deliver to Lender from time to time the
policies or certificates of insurance in form satisfactory to Lender,
including stipulations that coverages will not be canceled or diminished
without at least thirty (30) days' prior written notice to Lender.
INSURANCE REPORTS. Furnish to Lender, upon request of Lender, reports on
each existing insurance policy showing such information as Lender may
reasonably request, including without limitation the following: (a) the
name of the insurer; (b) the risks insured; (c) the amount of the policy;
and (d) the expiration date of the policy.
GUARANTIES. Prior to disbursement of any Loan proceeds, furnish executed
guaranties of the Loans in favor of Lender, on Lender's forms, and in the
amounts and by the guarantors named below:
GUARANTOR AMOUNTS
--------- ---------
SEARCH FINANCIAL SERVICES INC. UNLIMITED
OTHER AGREEMENTS. Comply with all terms and conditions of all other
agreements, whether now or hereafter existing, between each Borrower and
any other party and notify Lender immediately in writing of any default in
connection with any other such agreements.
LOAN PROCEEDS. Use all Loan proceeds solely for working capital needs of
Borrowers incurred in the ordinary course of business of Borrowers.
TAXES, CHARGES AND LIENS. Pay and discharge when due all of its
indebtedness and obligations, including without limitation all assessments,
taxes, governmental charges, levies and liens, of every kind and nature,
imposed upon any Borrower or properties, income, or profits of any
Borrower, prior to the date on which penalties would attach, and all lawful
claims that, if unpaid, might become a lien or charge upon any of the
properties, income, or profits of any Borrower. Provided, however,
Borrowers will not be required to pay and discharge any such assessment,
tax, charge, ▇▇▇▇, ▇▇▇▇ or claim so long as (a) the legality of the same
shall be contested in good faith by appropriate proceedings, and (b)
Borrowers shall have established on the books of Borrowers adequate
reserves with respect to such contested assessment, tax, charge, levy,
lien, or claim in accordance with generally accepted accounting principles.
Borrowers, upon demand of Lender, will furnish to Lender evidence of
payment of the assessments, taxes, charges, levies, liens and claims and
will authorize the appropriate governmental official to deliver to Lender
at any time a written statement of any assessments, taxes, charges, levies,
liens and claims against properties, income or profits of Borrowers.
PERFORMANCE. Perform and comply with all terms, conditions and provisions
set forth in this Agreement and in all other instruments and agreements
between each Borrower and Lender in a timely manner, and promptly notify
Lender if any Borrower learns of the occurrence of any event which
constitutes an Event of Default under this Agreement.
OPERATIONS. Substantially maintain its present executive and management
personnel; conduct its business affairs in a reasonable and prudent manner
and in compliance in all material respects with all applicable federal,
state and local laws, ordinances, rules and regulations respecting its
properties, charters, businesses and operations, including, without
limitation, compliance with the Americans With Disabilities Act and with
all minimum funding standards and other requirements of ERISA and other
laws applicable to the employee benefit plans of such Borrower.
NON-PRIME AUTO PAPER FORMS. Acquire Non-Prime Auto Paper only on forms of
notes, security agreements, disclosure statements and other documents that
are all in compliance and conformity with all applicable laws, ordinances,
rules, and regulations.
CONSUMER PAPER FORMS. Originate and acquire Consumer Paper only on forms
of notes, security agreements, disclosure statements and other documents
that are all in compliance and conformity with all applicable laws,
ordinances, rules, and regulations.
BANKING RELATIONSHIP AND ACCOUNTS. Establish and maintain Lender as the
principal and primary banking establishment of each Borrower and all
significant operating accounts of each Borrower shall be maintained with
Lender.
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10-06-1997 LOAN AGREEMENT PAGE 11
LOAN NO. (CONTINUED)
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INSPECTION. Permit employees or agents of Lender at any reasonable time to
inspect any and all Collateral and the other properties of such Borrower
and to examine or review the books, accounts, ledger sheets, and records of
such Borrower and to make copies and memoranda of the books, accounts,
ledger sheets, and records of such Borrower. If any Borrower now or at any
time hereafter maintains any records (including without limitation computer
generated records and computer programs for the generation of such records)
in the possession of a third party, such Borrower, upon request of Lender,
shall notify such party to permit Lender free access to such records at all
reasonable times and to provide Lender with copies of any records it may
request, all at the expense of Borrowers.
CHANGE OF LOCATION. Immediately notify Lender in writing of any additions
to or changes in any business location of such Borrower or the chief
executive office of such Borrower.
TITLE TO ASSETS AND PROPERTY. Maintain good and indefeasible title to all
of the assets and properties of such Borrower.
NOTICE OF DEFAULT AND ERISA MATTERS. Forthwith upon learning of the
occurrence of any of the following, Borrowers shall provide Lender with
written notice thereof, describing the same and the steps being taken by
Borrowers with respect thereto: (a) the occurrence of any Event of Default,
(b) the occurrence or existence of matter or event which, with notice from
Lender and expiration of any applicable cure period, would be an Event of
Default, or (c) the occurrence of a Reportable Event or a Prohibited
Transaction (as defined in ERISA) under, or the institution of steps by any
Borrower to withdraw from, or the institution of any steps to terminate,
any employee benefit plan as to which Borrowers may have any liability.
OTHER INFORMATION. From time to time, Borrowers will provide Lender with
such other information as Lender may reasonably request.
EMPLOYEE BENEFIT PLANS. So long as this Agreement remains in effect, each
Borrower will maintain each employee benefit plan as to which it may have
any liability, in compliance with all applicable requirements of law and
regulations.
OTHER AGREEMENTS. No Borrower will enter into any agreement containing any
provision which would be violated or breached by the performance of its
obligations hereunder or under any instrument or document delivered or to
be delivered by it hereunder or in connection herewith.
COMPLIANCE CERTIFICATE. Unless waived in writing by Lender, provide Lender
at least annually and at the time of each disbursement of Loan proceeds
with a certificate executed by the chief financial officer of each
Borrower, or other person acceptable to Lender, certifying that the
representations and warranties set forth in this Agreement are true and
correct, in all material respects, as of the date of the certificate and
further certifying that, as of the date of the certificate, no Event of
Default exists under this Agreement.
ADDITIONAL ASSURANCES. Make, execute and deliver to Lender such promissory
notes, security agreements, financing statements, instruments, documents
and other agreements as Lender or its attorneys may reasonably request to
evidence and secure the Loans and to perfect all Security Interests.
NEGATIVE COVENANTS. Each Borrower covenants and agrees with Lender that, as
long as this Agreement remains in effect, no Borrower shall, without the prior
written consent of Lender:
GRADE D PAPER ACQUISITIONS. Acquire Grade D Paper other than as a part of
bulk acquisitions of seasoned Non-Prime Auto Paper pools from entities that
have been actively engaged in the automobile loan industry for at least one
(1) year prior to the acquisition. The value of Grade D Paper included in
any such bulk acquisition may not exceed 15% of the value of the Non-Prime
Auto Paper acquired.
BULK PURCHASES. Make any bulk purchase of Non-Prime Auto Paper or Consumer
Paper. Borrowers acknowledge and agree that Lender shall have the right to
examine and inspect all matters, details and components of bulk purchases
proposed by Borrowers and shall have the right to declare as ineligible any
and all Non-Prime Auto Paper or Consumer Paper that Lender deems ineligible
using its reasonable credit judgment.
COMMINGLING OF ELIGIBLE PAPER. Include as Eligible Non-Prime Auto Paper or
Eligible Consumer Paper, Non-Prime Auto Paper or Consumer Paper that is not
owned solely by Borrowers.
ISSUANCE OF SHARES. Issue, sell or otherwise dispose of, any shares of
its capital stock or other securities, or rights, warrants or options to
purchase or acquire any shares or securities of any Borrower other than
shares of its capital stock issued as stock dividends; provided, however,
that (a) each Borrower shall be allowed to issue its shares and securities
to, and acquire its shares and securities from, its parent corporation, and
(b) each Borrower may also issue its shares and securities to, and acquire
its shares and securities from, others if, after the transaction, SEARCH
FINANCIAL SERVICES INC., owns and controls, directly or indirectly, more
than 50% of the voting rights for the election of directors.
REDEMPTION OF SHARES. Redeem, retire or repurchase any shares of its
capital stock or other securities, except as permitted under "Issuance of
Shares," above.
INDEBTEDNESS AND LIENS. (a) Create, incur or assume obligations for
borrowed money, including capital leases, other than (i) trade debt
incurred in the normal course of business, or (ii) indebtedness to Lender
contemplated by this Agreement, (b) except as allowed as a Permitted ▇▇▇▇
▇▇▇▇▇ a security interest in, or otherwise encumber, any of the Collateral,
(c) sell, transfer, or otherwise alienate any of the inventory of any
Borrower outside of the normal course of business, or (d) sell, transfer,
or otherwise alienate any chattel paper, instruments or accounts of any
Borrower other than as allowed under this Agreement.
CONTINUITY OF OPERATIONS. (a) Engage in any business activities
substantially different than those in which that Borrower is presently
engaged, (b) operate under any trade name other than trade names, if any,
identified in this Agreement, (c) cease operations, liquidate, merge,
transfer, acquire or consolidate with any other entity, change ownership,
dissolve or transfer or sell Collateral out of the ordinary course of
business, or (d) purchase or retire any of the outstanding shares or alter
or amend the capital structure of any Borrower, except in each case as
permitted under "Issuance of Shares," above.
LOANS, ACQUISITIONS AND GUARANTIES. (a) Loan, invest in or advance money
or assets other than in the ordinary course of business, (b) purchase,
create or acquire any interest in any other enterprise or entity, or (c)
incur any obligation as surety or guarantor other than in the ordinary
course of business.
FINANCIAL COVENANTS - SEARCH FINANCIAL SERVICES HOLDING. Each Borrower
covenants and agrees with Lender that as long as this Agreement remains in
effect each Borrower and Guarantor shall comply with the following financial
covenants:
DEFINITIONS. For purposes of testing compliance with these Financial
Covenants the following terms shall have the following meanings. Except as
otherwise provided by these defined terms, all computations made to
determine compliance with these Financial Covenants shall
12
10-06-1997 LOAN AGREEMENT PAGE 12
LOAN NO. (CONTINUED)
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be made on a consolidated basis for SEARCH FINANCIAL SERVICES HOLDING
COMPANY, and all of its subsidiaries, in accordance with generally accepted
accounting principles, applied on a consistent basis, and certified as true
and correct, in all material respects, to the best knowledge and belief, by
the chief financial officer of SEARCH FINANCIAL SERVICES HOLDING COMPANY, or
other person acceptable to Lender.
ADJUSTED NET WORTH. The term "Adjusted Net Worth" shall mean the
Stated Net Worth of SEARCH FINANCIAL SERVICES HOLDING COMPANY, and its
subsidiaries, on a consolidated basis, plus Subordinated Debt, less
Intangibles, and less amounts (a) due from any shareholder, director,
officer, employee or agent of SEARCH FINANCIAL SERVICES HOLDING
COMPANY, or of any subsidiary or affiliate of SEARCH FINANCIAL
SERVICES HOLDING COMPANY, or (b) due from any person or entity (other
than a subsidiary) which is affiliated with, or related to, SEARCH
FINANCIAL SERVICES HOLDING COMPANY, or any of its subsidiaries, or any
of the shareholders, officers, or directors of SEARCH FINANCIAL
SERVICES HOLDING COMPANY, or any of its subsidiaries.
DEBT. The term "Debt" shall mean all liabilities of SEARCH FINANCIAL
SERVICES HOLDING COMPANY, and its subsidiaries, on a consolidated
basis, INCLUDING SUBORDINATED DEBT.
INTANGIBLES. The term "Intangibles" shall mean all of the intangible
assets of SEARCH FINANCIAL SERVICES HOLDING COMPANY, and its
subsidiaries, on a consolidated basis, including goodwill, trademarks,
patents, copyrights, organizational expenses, and similar intangible
expenses, but excluding leaseholds and leasehold improvements.
SUBORDINATED DEBT. The term "Subordinated Debt" shall mean
indebtedness and liabilities of SEARCH FINANCIAL SERVICES HOLDING
COMPANY, and its subsidiaries, which have been subordinated by written
agreement to the Indebtedness, and to the indebtedness of any
Guarantor to Lender, in form and substance acceptable to Lender.
STATED NET WORTH. The term "Stated Net Worth" shall mean the total
assets of SEARCH FINANCIAL SERVICES HOLDING COMPANY, and its
subsidiaries, on a consolidated basis, less total Debt.
MINIMUM ADJUSTED NET WORTH. SEARCH FINANCIAL SERVICES HOLDING COMPANY,
shall maintain an Adjusted Net Worth of no less than $1,500,000.00.
MAXIMUM LEVERAGE POSITION. SEARCH FINANCIAL SERVICES HOLDING COMPANY,
shall maintain a leverage position of no more than 4.00 to 1.00, where
leverage position is the result of the following formula:
Debt - Subordinated Debt
------------------------------------
Stated Net Worth + Subordinated Debt
TESTING FREQUENCY. Compliance with Minimum Adjusted Net Worth and Maximum
Leverage Position requirements shall be tested quarterly (based on the
fiscal year of SEARCH FINANCIAL SERVICES HOLDING COMPANY) based on the then
most recent financial statements of SEARCH FINANCIAL SERVICES HOLDING
COMPANY, and its subsidiaries, on a consolidated basis.
FINANCIAL COVENANTS - GUARANTOR. Each Borrower covenants and agrees with
Lender that as long as this Agreement remains in effect each Borrower and
Guarantor shall comply with the following financial covenants:
DEFINITIONS. For purposes of testing compliance with these Financial
Covenants the following terms shall have the following meanings. Except as
otherwise provided by these defined terms, all computations made to
determine compliance with these Financial Covenants shall be made on a
consolidated basis for SEARCH FINANCIAL SERVICES INC., and all of its
subsidiaries, in accordance with generally accepted accounting principles,
applied on a consistent basis, and certified as true and correct, in all
material respects, to the best knowledge and belief, by the chief financial
officer of SEARCH FINANCIAL SERVICES INC., or other person acceptable to
Lender.
ADJUSTED NET WORTH. The term "Adjusted Net Worth" shall mean the
Stated Net Worth of SEARCH FINANCIAL SERVICES INC., and its
subsidiaries, on a consolidated basis, plus Subordinated Debt, less
Intangibles, and less amounts (a) due from any shareholder, director,
officer, employee or agent of SEARCH FINANCIAL SERVICES INC, or of any
subsidiary or affiliate of SEARCH FINANCIAL SERVICES INC., or (b) due
from any person or entity (other than a subsidiary) which is
affiliated with, or related to,SEARCH FINANCIAL SERVICES INC., or any
of its subsidiaries, or any of the shareholders, officers, or
directors of SEARCH FINANCIAL SERVICES INC., or any of its
subsidiaries.
DEBT. The term "Debt" shall mean all liabilities of SEARCH FINANCIAL
SERVICES INC., and its subsidiaries, on a consolidated basis,
INCLUDING SUBORDINATED DEBT.
INTANGIBLES. The term "Intangibles" shall mean all of the intangible
assets of SEARCH FINANCIAL SERVICES INC., and its subsidiaries, on a
consolidated basis, including goodwill, trademarks, patents,
copyrights, organizational expenses, and similar intangible expenses,
but excluding leaseholds and leasehold improvements.
SUBORDINATED DEBT. The term "Subordinated Debt" shall mean
indebtedness and liabilities of SEARCH FINANCIAL SERVICES INC., and its
subsidiaries, which have been subordinated by written agreement to the
Indebtedness, and to the indebtedness of any Guarantor to Lender, in
form and substance acceptable to Lender.
STATED NET WORTH. The term "Stated Net Worth" shall mean the total
assets of SEARCH FINANCIAL SERVICES INC., and its subsidiaries, on a
consolidated basis, less total Debt.
MINIMUM ADJUSTED NET WORTH. SEARCH FINANCIAL SERVICES INC., shall maintain
an Adjusted Net Worth of no less than $15,000,000.00 until October 1, 1997.
Beginning October 1, 1997, SEARCH FINANCIAL SERVICES INC., shall maintain
an Adjusted Net Worth of no less than $20,000,000.00.
MAXIMUM LEVERAGE POSITION. SEARCH FINANCIAL SERVICES INC., shall maintain
a leverage position of no more than 5.00 to 1.00, where leverage position
is the result of the following formula:
Debt - Subordinated Debt
------------------------------------
Stated Net Worth + Subordinated Debt
TESTING FREQUENCY. Compliance with Minimum Adjusted Net Worth and Maximum
Leverage Position requirements shall be tested quarterly (based on the
fiscal year of SEARCH FINANCIAL SERVICES INC.) based on the then most
recent financial statements of SEARCH FINANCIAL SERVICES INC., and its
subsidiaries, on a consolidated basis.
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10-06-97 LOAN AGREEMENT PAGE 13
LOAN NO. (CONTINUED)
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CESSATION OF ADVANCES. If Lender has made any commitment to make any Loan to
any Borrower whether under this Agreement or under any other agreement, Lender
shall have no obligation to make Loan Advances or to disburse Loan proceeds if:
(a) any Borrower or any Guarantor is in default under the terms of this
Agreement or any of the other Related Documents or any other agreement that any
Borrower or any Guarantor has with Lender, (b) any Borrower or any Guarantor
becomes insolvent, files a petition in bankruptcy or similar proceedings, or is
adjudged a bankrupt, (c) there occurs a material adverse change in the
financial condition of any Borrower or any Guarantor, or in the total value of
the Collateral securing any Loan, (d) any Borrower or any Grantor seeks, claims
or otherwise attempts to limit, modify or revoke any Security Interest granted
to Lender, or (e) any Guarantor seeks, claims or otherwise attempts to limit,
modify or revoke such Guarantor's guaranty of the Loan or any other loan with
Lender.
INSECURITY. Each Borrower agrees that, even though no Event of Default shall
have occurred, Lender shall have the right to demand, by written notice to
Borrowers, full repayment, subject to the provisions of this paragraph, of the
aggregate unpaid principal amount of all Advances then outstanding and all
accrued unpaid interest, together with all other applicable fees, costs and
charges, if any, not yet paid, if (a) Lender in good ▇▇▇▇▇ ▇▇▇▇▇ itself
insecure, or (b) the results of any annual review by Lender of books, records or
operations of Borrowers or the Collateral are not satisfactory to Lender. If
such a repayment demand is made by Lender, even though no Event of Default shall
have occurred, Borrowers and Lender agree that, unless and until an Event of
Default occurs, Borrowers shall continue to have the right to request and
receive Advances under the Line of Credit, subject to the other terms and
conditions of this Agreement; provided, however, that, sixty (60) days after
notice of Lender's repayment demand under this provision, the percentage of the
aggregate amount of the outstanding principal and interest owed to Borrowers
under the Eligible Non- Prime Auto Paper and Eligible Consumer Paper used to
determine the Borrowing Base under the Line of Credit shall be reduced by five
(5) percentage points and shall be further reduced by an additional five (5)
percentage points every thirty (30) days thereafter. Additionally, after notice
of Lender's repayment demand under this provision, Borrowers shall not be
obligated to pay any of the commitment cancellation charges, unused facility
fees, or annual renewal fees otherwise due and payable under this Agreement or
any of the Related Documents.
DEPOSIT ACCOUNTS. As collateral security for repayment of the Indebtedness,
each Borrower hereby grants Lender a continuing Security Interest in any and
all funds that each Borrower may now and in the future have on deposit with
Lender or in certificates of deposit or other deposit accounts as to which any
Borrower is an account holder (with the exception of ▇▇▇, pension, and other
tax-deferred deposits). Each Borrower further agrees that Lender may, after an
Event of Default has occurred, apply any funds that any Borrower may have on
deposit with Lender or in certificates of deposit or other deposit accounts as
to which any Borrower is an account holder (with the exception of ▇▇▇, pension,
and other tax-deferred deposits) against the unpaid balance of the
Indebtedness; provided, however, that the Event of Default prerequisite for
application authority shall not apply to any Dominion Account.
SPECIFIC DEPOSIT ACCOUNT DEBIT AUTHORIZATION. Without any demand or notice
whatsoever, each Borrower hereby authorizes Lender to debit any Dominion
Account in order to pay any facility fee or facility charge due under this
Agreement, in order to pay any overline or overadvance, and in order to pay any
accrued interest due under the Note. Without any demand or notice whatsoever,
each Borrower hereby authorizes Lender, after an Event of Default occurs, to
debit any one or more of the other deposit accounts of any Borrower with Lender
(with the exception of ▇▇▇, pension, and other tax- deferred deposits) in order
to pay any facility fee or facility charge due under this Agreement, in order
to pay any overline or overadvance, and in order to pay any accrued interest
due under the Note. Each Borrower hereby waives the right to notice of any
account debit effected in accordance with this authorization, including,
without limitation, the notice provided for under La.-R.S. 6:316, as amended.
EVENTS OF DEFAULT. The following actions or inactions or both shall constitute
Events of Default under this Agreement:
PAYMENT OF DIVIDENDS BY SEARCH FINANCIAL SERVICES - BEFORE SEPTEMBER 30,
1997. Should SEARCH FINANCIAL SERVICES INC., before September 30, 1997,
pay or declare any dividends on its stock (other than dividends payable in
its stock) unless (a) its Adjusted Net Worth (as defined in the FINANCIAL
COVENANTS - GUARANTOR section above) exceeds $15,000,000.00, and (b)
payment of the dividend will not reduce its Adjusted Net Worth to an amount
equal to or less than $15,000,000.00.
PAYMENT OF DIVIDENDS BY SEARCH FINANCIAL SERVICES - ON AND AFTER
SEPTEMBER 30, 1997. Should SEARCH FINANCIAL SERVICES INC., on or after
September 30, 1997, pay or declare any dividends on its stock (other than
dividends payable in its stock) unless (a) its Adjusted Net Worth (as
defined in the FINANCIAL COVENANTS - GUARANTOR section above) exceeds
$22,500,000.00, and (b) payment of the dividend will not reduce its
Adjusted Net Worth to an amount equal to or less than $22,500,000.00.
DEFAULT UNDER THE NOTE. Should Borrowers default in the payment of any
amounts due and payable under the Note.
DEFAULT UNDER DOMINION ACCOUNT OBLIGATIONS. Should any Borrower fail to
deposit, into a Dominion Account, any collection made of any amounts due
under any Non-Prime Auto Paper or any Consumer Paper, or any amount
received from the sale of any inventory of any Borrower, within one (1)
Business Day of receipt.
DEFAULT IN PAYMENT OF OVERLINES OR OVERADVANCES. Should any Borrower
default in the payment of any Overline or Overadvance within two (2)
Business Days after notice from Lender to Borrowers.
DEFAULT UNDER THIS AGREEMENT. Should any Borrower violate, or fail to
comply fully with, any of the other terms and conditions of, this
Agreement, and such violation or failure shall not have been remedied
within fifteen (15) days after notice of such violation or failure by
Lender to Borrowers.
DEFAULT UNDER RELATED DOCUMENTS. Should any Guarantor violate, or fail to
comply fully with, any of the other terms and conditions of, such
Guarantor's guaranty of the Loan, and such violation or failure shall not
have been remedied within fifteen (15) days after notice of such violation
or failure by Lender to Borrowers. Should, after expiration of any
applicable cure periods, any event of default occur or exist under any
other Related Document.
OTHER DEFAULTS IN FAVOR OF LENDER. Should any Borrower or any Guarantor
default under any other loan, extension of credit, security agreement, or
obligation in favor of Lender, and such default shall not have been
remedied within fifteen (15) days after notice of such default by Lender to
Borrowers.
DEFAULT IN FAVOR OF THIRD PARTIES. Should any Borrower or any Guarantor
default (after expiration of any applicable cure periods) under any loan,
extension of credit, security agreement, purchase or sales agreement, or
any other agreement in favor of any other creditor or person involving in
excess of $1,000,000.00, and such default shall not have been remedied
within fifteen (15) days after notice of such default by Lender to
Borrowers.
INSOLVENCY. Should the suspension of business, failure or insolvency,
however evidenced, of any Borrower or any Guarantor occur or exist.
VOLUNTARY READJUSTMENT OF INDEBTEDNESS. Should proceedings for
readjustment of indebtedness, reorganization, bankruptcy, composition or
extension under any insolvency law be brought by any Borrower or any
Guarantor.
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10-06-1997 LOAN AGREEMENT PAGE 14
LOAN NO. (CONTINUED)
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INVOLUNTARY READJUSTMENT OF INDEBTEDNESS. Should proceedings for
readjustment of indebtedness, reorganization, bankruptcy, composition or
extension under any insolvency law be brought against any Borrower or any
Guarantor, and such proceedings are not dismissed within sixty (60) days
after commencement.
ASSIGNMENT FOR BENEFIT OF CREDITORS. Should any Borrower or any Guarantor
file proceedings for a respite or make a general assignment for the benefit
of creditors.
RECEIVERSHIP. Should proceedings for the appointment of a receiver of all
or any part of the property of any Borrower or any Guarantor, be commenced
and such proceedings are not dismissed within sixty (60) days after
commencement, or should a receiver be appointed for all or any part of the
property of any Borrower or any Guarantor.
DISSOLUTION PROCEEDINGS. Should proceedings for the dissolution or
appointment of a liquidator of any Borrower or any Guarantor be commenced
by any person or entity other than any Borrower and such proceedings are
not dismissed within sixty (60) days after commencement, or should any
Borrower or any Guarantor be dissolved or have a liquidator appointed.
FALSE STATEMENTS. Should any representation or warranty of any Borrower or
any Guarantor made in connection with the Loan prove to be incorrect or
misleading in any material respect.
DEFECTIVE COLLATERALIZATION - NON-PRIME AUTO PAPER. Should any Related
Document granting Lender a Security Interest in any of the Non-Prime Auto
Paper cease to be in full force and effect (including the failure of any
such Related Document to create a valid and perfected security interest or
lien in the Non-Prime Auto Paper) at any time for any reason.
DEFECTIVE COLLATERALIZATION - CONSUMER PAPER. Should any Related Document
granting Lender a Security Interest in any of the Consumer Paper cease to
be in full force and effect (including the failure of any such Related
Document to create a valid and perfected security interest or lien in the
Consumer Paper) at any time for any reason.
DEFECTIVE COLLATERALIZATION - OTHER COLLATERAL. Should any Related
Document granting Lender a Security Interest in any of the Collateral other
than Non-Prime Auto Paper or Consumer Paper cease to be in full force and
effect (including the failure of any such Related Document to create a
valid and perfected security interest or lien on such other Collateral) at
any time for any reason, and such condition or failure shall not have been
remedied within fifteen (15) days after notice thereof by Lender to
Borrowers.
EFFECT OF AN EVENT OF DEFAULT. If any Event of Default shall occur, all
commitments and obligations of Lender under this Agreement or the other Related
Documents or any other agreement immediately will terminate (including any
obligation to make further Loan Advances or disbursements), and, at Lender's
option, all Loans immediately will become due and payable, all without notice
of any kind to any Borrower, except that in the case of an Event of Default of
the type described in the "Insolvency" subsection above, such acceleration
shall be automatic and not optional. In addition, Lender shall have all the
rights and remedies provided in the Related Documents or available at law, in
equity, or otherwise.
If any Event of Default shall occur, Lender shall have the right at its sole
option, to accelerate payment of the Note in full, in principal, interest,
costs, expenses, attorneys' fees, and other fees and charges, as well as to
accelerate the maturity of any and all other loans and/or obligations that any
Borrower may then owe to Lender, whether direct or indirect, or by way of
assignment or purchase of a participation interest, and whether absolute or
contingent, liquidated or unliquidated, voluntary or involuntary, determined or
undetermined, due or to become due, and whether now existing or hereafter
arising, and whether any Borrower is obligated alone or with others on a
"solidary" or "joint and several" basis, as a principal obligor or as a surety,
of every nature and kind whatsoever, whether any such indebtedness may be barred
under any statute of limitations or otherwise may be unenforceable or voidable
for any reason whatsoever.
If any Event of Default shall occur, Lender shall have the additional right,
again at its sole option, to file an appropriate collection action against any
Borrower and/or against any Guarantor, and/or to proceed, or exercise any
rights, against any Collateral then securing repayment of the Note. Borrowers
further agree that the remedies of Lender shall be cumulative in nature and
nothing under this Agreement or otherwise, shall be construed as to limit or
restrict the options and remedies available to Lender following any event of
default under this Agreement or otherwise.
If any Event of Default shall occur, Lender shall have the additional right,
again at its sole option, to notify Debtors to make payments directly to Lender
and Lender may remove from the business premises of any Borrower, all
documents, files, ledgers, computer tapes and disks, and all other records
relating to the Collateral to facilitate in making direct collections.
Borrowers shall be responsible for and pay all reasonable costs and expenses
incurred by Lender in making direct collections, including Lender's internal
costs and attorneys' fees. As soon as practical after receipt of payments
directly from Debtors, Lender shall deposit the collections into a Dominion
Account.
Except as may be prohibited by applicable law, all of Lender's rights and
remedies shall be cumulative and may be exercised singularly or concurrently.
Election by Lender to pursue any remedy shall not exclude pursuit of any other
remedy, and an election to make expenditures or to take action to perform an
obligation of any Borrower or of any Grantor shall not affect Lender's right to
declare a default and to exercise its rights and remedies.
ADDITIONAL DOCUMENTS. Borrowers shall provide Lender with the following
additional documents:
CORPORATE RESOLUTION - BORROWERS. Borrowers have provided or will provide
Lender with a certified copy of resolutions properly adopted by the Board
of Directors of each Borrower, and certified by the corporate secretary or
assistant secretary of each Borrower, under which the Board of Directors of
each Borrower authorized one or more designated officers or employees to
execute this Agreement on behalf of each Borrower and to execute the above
referenced Note and any and all Security Agreements directly or indirectly
securing repayment of the same, and to consummate the borrowings and other
transactions as contemplated hereunder, and to consent to the remedies
following an Event of Default as provided herein.
CORPORATE RESOLUTIONS - GUARANTORS. Borrowers have provided or will
provide Lender with certified copies of resolutions properly adopted by the
Board of Directors of each Guarantor (or by a duly organized and authorized
committee of the Board of Directors, if appropriate), and certified by the
corporate secretary or assistant secretary of each Guarantor, under which
the Board of Directors of each Guarantor (or a duly organized and
authorized committee of the Board of Directors, if appropriate) authorized
one or more designated officers or employees to execute the Related
Documents on behalf of each Guarantor, and to consummate the transactions
as contemplated hereunder, and to consent to the remedies provided for
under the Related Documents.
CERTIFICATION. Where required by Lender, each Borrower has provided or
will provide Lender with a certificate executed by the principal or
executive officer of each Borrower, certifying that the representations and
warranties set forth in this Agreement are true and correct, and further
certifying that no Event of Default presently exists under this Agreement,
or under the Note, or under any Security Agreement directly or indirectly
securing repayment of the same, as of the date hereof.
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10-06-97 LOAN AGREEMENT PAGE 15
LOAN NO. (CONTINUED)
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OPINION OF COUNSEL. Where required by Lender, Borrowers have provided or
will provide Lender with an opinion of counsel for Borrowers certifying to
and that: (a) this Agreement and the Note and Security Agreements
constitute valid and binding obligations on the part of each Borrower that
are enforceable in accordance with their respective terms; (b) each
Borrower and each Guarantor is validly existing and in good standing; (c)
each Borrower has authority to enter into this Agreement and to consummate
the transactions contemplated hereunder; (d) each Guarantor has authority
to enter into the Related Documents and to consummate the transactions
contemplated hereunder; and (e) such other matters as may have been
requested by Lender or by counsel for Lender.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
AMENDMENTS. No alteration of or amendment to this Agreement shall be
effective unless given in writing and signed by the party or parties sought
to be charged or bound by the alteration or amendment.
APPLICABLE LAW. This Agreement has been delivered to Lender and accepted
by Lender in the State of Louisiana and all Advances and payments to be
made hereunder shall be delivered in Louisiana. Lender and Borrowers
hereby waive the right to any jury trial in any action, proceeding, or
counterclaim brought by either Lender or any Borrower against the other.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Louisiana.
CAPTION HEADINGS. Caption headings in this Agreement are for convenience
purposes only and are not to be used to interpret or define the provisions
of this Agreement.
CONSENT TO LOAN PARTICIPATION. Each Borrower agrees and consents to sale
or transfer by Lender, whether now or later, of one or more participation
interests in the Loans to one or more purchasers, whether related or
unrelated to Lender. Lender may provide, without any limitation
whatsoever, to any one or more purchasers, or potential purchasers, any
information or knowledge Lender may have about any Borrower or about any
other matter relating to the Loan, and each Borrower consents to the
disclosure of such information by Lender to any one or more purchasers, or
potential purchasers, and hereby waives any rights to privacy it may have
with respect to such disclosure by Lender, but each Borrower specifically
reserves its rights to privacy with respect to any further disclosure or
dissemination of such information by purchasers or potential purchasers.
Lender agrees to notify Borrowers of any sale or transfer of (a) the Loan
in its entirety, and (b) any assignment of the "lead lender" position if
participation interests in the Loan are sold or transferred. Each Borrower
additionally waives any and all other notices of sale of participation
interests, as well as all notices of any repurchase of participation
interests. Each Borrower also agrees that the purchasers of any such
participation interests will be considered as the absolute owners of such
interests in the Loans and will have all the rights granted under this
Agreement and under the participation agreement or agreements governing the
sale of such participation interests.
CONTROLLING TERMS. The Related Documents shall contain such terms and
provisions as the parties thereto shall agree (including provisions for
repayment, interest and security) and the terms and conditions of each of
the Related Documents shall be cumulative and in addition to the terms and
provisions of this Agreement, which shall apply to all other Related
Documents. This Agreement and all of the other Related Documents shall be
construed in such a manner as to give full force and effect to all
provisions of this Agreement and the other Related Documents; however, in
the event of any irreconcilable conflict between the terms and provisions
contained in this Agreement and in any of the other Related Documents, the
terms and provisions of this Agreement shall control.
COSTS AND EXPENSES. Borrowers agree to pay, upon demand, all of the
out-of-pocket expenses of Lender, including reasonable attorneys' fees,
incurred in connection with the preparation, execution, enforcement and
collection of this Agreement or in connection with the Loans made pursuant
to this Agreement. If an Event of Default occurs, Lender may pay someone
else to help collect the Loans and to enforce this Agreement, and Borrowers
will pay that amount. This includes, subject to any limits under
applicable law, attorneys' fees and legal expenses, whether or not there is
a lawsuit, including attorneys' fees for bankruptcy proceedings (including
efforts to modify or vacate any automatic stay or injunction), appeals, and
any anticipated post-judgment collection services. Borrowers also will pay
any court costs, in addition to all other sums provided by law.
ENTIRE AGREEMENT. This Agreement, the Note, and the other Related
Documents, embody the final, entire agreement of the parties hereto and
supersede any and all prior commitments, agreements, representations, and
understandings, whether written or oral, relating to the subject matter
hereof (including, without limitation, the Loan Agreement dated SEPTEMBER
11, 1996, between SEARCH FUNDING II, INC., and Lender, as amended, which is
hereby terminated without any obligation of any party thereto to any other
party thereto) and may not be contradicted or varied by evidence of prior,
contemporaneous, or subsequent oral agreements or discussions of the
parties hereto. THERE ARE NO ORAL AGREEMENTS BETWEEN THE PARTIES TO THIS
AGREEMENT.
MAXIMUM INTEREST RATE. No provision of this Agreement, the Note, or any
other Related Document shall require the payment or permit the collection of
interest in excess of the maximum permitted by applicable law ("THE MAXIMUM
RATE"). If interest in excess of the Maximum Rate is provided for in this
Agreement, in any other Related Document, or otherwise in connection with
the Loan, or is adjudicated to be so provided, the provisions of this
section shall govern and prevail and no Borrower, Guarantor or Grantor,
shall be obligated to pay the excess amount of such interest or any other
excess sum paid for the use, forbearance, or detention of Advances made
under this Agreement. In the event Lender ever receives, collects or
applies, as interest due and payable under the Note, any sum in excess of
the Maximum Rate, the amount of the excess shall be applied as a payment and
reduction of the principal of the indebtedness represented by the Note; and
if the principal of the indebtedness represented by the Note has been fully
paid, any remaining excess shall forthwith be paid to Borrowers. In
determining whether or not interest paid or payable exceeds the Maximum
Rate, Borrowers and Lender shall, to the extent permitted by applicable law,
(a) characterize any non-principal payment as an expense, fee or premium
rather than as interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) amortize, prorate, allocate and spread, in equal or unequal
parts, the total amount of interest throughout the entire contemplated term
of the indebtedness represented by the Note so that interest for the entire
term does not exceed the Maximum Rate.
NOTICES. To give Borrowers any notice required under this Agreement,
Lender may hand deliver or mail such notice to any Borrower at the chief
executive office address specified for any Borrower in this Agreement, or
at any other address that Borrowers may have given to Lender by written
notice as provided in this paragraph. Notice to a single Borrower shall be
considered as notice to all Borrowers. To give Lender any notice under
this Agreement, Borrowers may hand deliver or mail such notice to Lender at
the address specified in this Agreement, or at any other address that
Lender may have given to Borrowers (or any Borrower) by written notice as
provided in this paragraph. All notices required or permitted under this
Agreement must be in writing and will be considered as given on the day it
is delivered by hand or deposited in the U. S. Mail in the form and to the
address specified in this Agreement.
SEVERABILITY. If a court of competent jurisdiction finds any provision of
this Agreement to be invalid or unenforceable as to any person or
circumstance, such finding shall not render that provision invalid or
unenforceable as to any other persons or circumstances. If feasible, any
such offending provision shall be deemed to be modified to be within the
limits of enforceability or validity; however, if the offending provision
cannot be so modified, it shall be stricken and all other provisions of
this Agreement in all other respects shall remain valid and enforceable.
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10-06-1997 LOAN AGREEMENT PAGE 16
LOAN NO. (CONTINUED)
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SOLE DISCRETION OF LENDER. Whenever consent or approval of Lender is
required under this Agreement, the decision as to whether or not to consent
or approve shall be in the sole, but reasonable, discretion of Lender, and
the decision of Lender shall be final and conclusive, absent manifest
error.
SUCCESSORS AND ASSIGNS. All covenants and agreements contained by or on
behalf of any Borrower shall bind its successors and assigns and shall
inure to the benefit of Lender, its successors and assigns. No Borrower
shall have the right to assign its rights under this Agreement or any
interest therein, without the prior written consent of Lender.
SURVIVAL. All warranties, representations, and covenants made by each
Borrower in this Agreement or in any certificate or other instrument
delivered by any Borrower to Lender under this Agreement shall be
considered to have been relied upon by Lender and will survive the making
of the Loan and delivery to Lender of the Related Documents, regardless of
any investigation made by Lender or on Lender's behalf.
WAIVER. Lender shall not be deemed to have waived any rights under this
Agreement unless such waiver is given in writing and signed by Lender. No
delay or omission on the part of Lender in exercising any right shall
operate as a waiver of such right or any other right. A waiver by Lender
of a provision of this Agreement shall not prejudice or constitute a waiver
of Lender's right otherwise to demand strict compliance with that provision
or any other provision of this Agreement. No prior waiver by Lender, nor
any course of dealing between Lender and any Borrower, any Guarantor or any
Grantor, shall constitute a waiver of any of Lender's rights or of any
obligations of any Borrower, any Guarantor or any Grantor as to any future
transactions. Whenever the consent of Lender is required under this
Agreement, the granting of such consent by Lender in any instance shall not
constitute continuing consent in subsequent instances where such consent is
required and in all cases such consent may be granted or withheld in the
sole discretion of Lender.
EACH BORROWER ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS LOAN
AGREEMENT, AND EACH BORROWER AGREES TO ITS TERMS. THIS AGREEMENT IS DATED AS
OF OCTOBER 6, 1997.
BORROWERS:
SEARCH FUNDING II, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, Senior Executive Vice President
SEARCH FINANCIAL SERVICES HOLDING COMPANY
SEARCH FINANCIAL SERVICES OF FLORIDA, INC.
SEARCH FINANCIAL SERVICES OF GEORGIA, INC.
SEARCH FINANCIAL SERVICES OF LOUISIANA, INC.
SEARCH FINANCIAL SERVICES OF OKLAHOMA, INC.
SEARCH FINANCIAL SERVICES OF PUERTO RICO, INC.
SEARCH FINANCIAL SERVICES OF TENNESSEE, INC.
SEARCH FINANCIAL SERVICES OF TEXAS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇,
Senior Executive Vice President of each entity
LENDER:
HIBERNIA NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------------
Authorized Officer