EXHIBIT 4.2
AMENDED AND RESTATED
SENIOR LENDING AGREEMENT
This Amended and Restated Senior Lending Agreement ("Agreement") is made as
of this 1st day of March, 1996 by and between Pioneer Financial Services, Inc.,
a Missouri corporation (hereinafter referred to as "Pioneer"), UMB Bank, N.A., a
national banking association (hereinafter referred to as "UMB"), Mercantile Bank
of Kansas City, a Missouri state banking association (hereinafter referred to as
"Mercantile"), Bank of Boston, a Massachusetts banking corporation (hereinafter
referred to as "Boston"), Boatmen's First National Bank of Kansas City, a
national banking association (hereinafter referred to as "Boatmen's"), First
National Bank of Kansas, a national banking association (hereinafter referred to
as "Kansas"), LaSalle National Bank, a national banking association (hereinafter
referred to as "LaSalle"), Liberty Bank and Trust Company of Oklahoma City,
N.A., a national banking association (hereinafter referred to as "Liberty"), NBD
Bank, a Michigan banking corporation (hereinafter referred to as "NBD") and
Southwest Bank of St. Louis, a Missouri banking association (hereinafter
referred to as "Southwest"), all of UMB, Mercantile, Boston, Boatmen's, Kansas,
LaSalle, Liberty, NBD and Southwest being hereinafter referred to collectively
as "Banks".
WHEREAS, Pioneer and the Banks entered into a Senior Lending Agreement
dated as of June 9, 1993; and WHEREAS, Pioneer and each of the Banks desire to
amend such Senior Lending Agreement by the execution and delivery of this
Agreement; and
WHEREAS, Pioneer is willing to confirm that all provisions of such Senior
Lending Agreement and of all notes, documents evidencing or confirming the grant
of liens and security interests and all other related documents, except as
otherwise expressly amended by this Agreement, shall remain in full force and
effect; and
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WHEREAS, Pioneer and the Banks desire that all existing and future
extensions of credit by any of the Banks to Pioneer be subject to the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements of the parties
hereto and for other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto agree as follows:
I. DEFINITIONS
When used in this Agreement, the following words, terms or names shall have
the meanings set forth in this section:
1. "Adjusted Capital" shall mean Total Required Capital plus loan loss and
dealer reserves minus all delinquent accounts by recency of payment of 90 days
or more.
2. "Agent Bank" shall mean UMB Bank, N.A., Kansas City, Missouri, unless
changed pursuant to the terms hereof.
3. "Amortizing Note" shall mean any note in the form of Exhibit B attached
hereto.
4. "Assignment of Note Payments" shall be the document in the form attached
hereto as Exhibit J.
5. "Banks" shall mean UMB, Mercantile, Boston, Boatmen's, Kansas, LaSalle,
Liberty, NBD and Southwest, and "Bank" may refer to any of the foregoing.
6. "Boatmen's shall mean Boatmen's First National Bank of Kansas City,
Kansas City, Missouri.
7. "Boston" shall mean the Bank of Boston, Boston, Massachusetts.
8. "Business Day" means any day on which the Agent Bank is open for
business.
9. "Compliance Certificate" shall mean each certificate executed by Pioneer
in the form of Exhibit G attached hereto.
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10. "Consolidated" shall, with respect to financial terms and financial
statements, have the meaning as used in generally accepted accounting principles
in the United States of America in effect from time to time, consistently
applied.
11. "Credit Facility Letter" shall mean each letter submitted to Pioneer by
any of the Banks in the form of Exhibit F attached hereto.
12. "Event of Default" shall mean any of the following:
(a) Pioneer fails to make any payment of Senior Debt when due after
written demand therefor following the expiration of the notification period
set forth in Section X 2(a).
(b) Pioneer fails or refuses, in the event of the declaration by any
Bank of nonperformance of Pioneer due to the occurrence of a Performance
Event, to deliver to the Agent Bank as required by the terms of Section V
(3) hereof within three (3) Business Days of receipt of a notice declaring
nonperformance, all stock certificates evidencing all shares of the issued
and outstanding capital stock of each of its Subsidiaries listed on Exhibit
D attached hereto with stock powers attached thereto endorsed in blank;
(c) Any material representation or warranty made by Pioneer in Section
II of this Agreement being untrue in any material respect now or at any
time hereafter; or any material schedule, statement, report, notice,
information or writing furnished by Pioneer to the Banks being untrue or
misleading in any material respect as of the date the facts set forth
therein are stated or certified;
(d) A material breach by Pioneer of any covenant, obligation or
requirement contained in Section VIII of this Agreement, except Paragraphs
4, 5, 6, 7, 8 and 9 of Section VIII, and failure of Pioneer after receipt
from the Banks of written notice pursuant to
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Section X 2(a) hereof specifying the same, to perform any such covenant,
obligation or requirement;
(e) Any failure to make payment when due, or other default or
justifiable demand by a creditor other than any of the Banks for
accelerated payment by Pioneer under the terms of any contract or agreement
for borrowed money in any amount greater than one Million Dollars
($1,000,000) in the aggregate, if such payment is not made, such default is
not cured or such demand is not rescinded within ten (10) Business Days of
receipt of notice thereof by Pioneer;
(f) Pioneer shall admit in writing its inability to pay its debts as
they mature; or Pioneer shall make a general assignment for the benefit of
it creditors, or Pioneer consents to, applies for or acquiescences in the
appointment of a trustee or receiver for it or for substantially all of its
property; or Pioneer shall suffer proceedings under any law relating to
bankruptcy, insolvency or reorganization or the release of debtors to be
instituted by or against it, and if contested, not dismissed or stayed
within ninety (90) calendar days; or Pioneer shall suffer any writ of
attachment or execution or any similar process to be issued or levied
against any material portion of its property which is not released, stayed,
bonded or vacated within thirty (30) calendar days after its issue or levy;
(g) One or more final judgments or judicial orders for the payment of
money in excess of an aggregate of Five Hundred Thousand Dollars ($500,000)
shall be rendered against Pioneer and said judgments or orders shall
continue unsatisfied and be in effect for a period of thirty (30)
consecutive calendar days unless adequate insurance coverage exists for any
such judgments or orders, an appeal bond in the amount of any such
judgments or orders has
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been issued or Pioneer has adequately reserved cash or other liquid assets
for the payment of any such judgments and orders; and
(h) the occurrence of any change of control of Pioneer subsequent to
the execution of this Agreement. For purposes hereof, a change of control
of Pioneer shall have occurred, only if as the result of any event except
death or disability, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ceases to be the Chief Executive
Officer of Pioneer or of the surviving corporation in the event of a
merger.
13. "LaSalle" shall mean the LaSalle National Bank, Chicago, Illinois.
14. "Liberty" shall mean Liberty Bank and Trust Company of Oklahoma City,
National Association, Oklahoma City, Oklahoma.
15. "Mercantile" shall mean Mercantile Bank of Kansas City, Kansas City,
Missouri.
16. "NBD" shall mean NBD Bank, Detroit, Michigan.
17. "Net Receivables" shall mean (i) all receivables due from customers of
all Subsidiaries of Pioneer except Pioneer Military Insurance as a result of
direct cash loans, purchased retail notes and real estate and home improvement
loans less (ii) all deferred income and reserves for loan losses.
18. "Kansas" shall mean the First National Bank of Kansas, Overland Park,
Kansas.
19. "Performance Event" shall mean the failure of Pioneer to be in
compliance with any of the covenants set forth in Paragraph 4, 5, 6, 7, 8 and 9
of Section VIII hereof, such compliance to be determined by the Banks as of the
last Business Day of each March, June, September and December by reference to
Compliance Certificates delivered to the Banks by Pioneer pursuant to Section
VIII (10) hereof.
20. "Pioneer" shall mean Pioneer Financial Services, Inc., a Missouri
corporation.
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21. "Quarterly Certificate" shall mean the certificate in the form attached
hereto as Exhibit H.
22. "Revolving Grid Note" shall mean any note in the form of Exhibit A
attached hereto.
23. "Senior Debt" means any debt of Pioneer which is not Subordinated Debt
and is owed to any Bank or other lender which is a party hereto at the time such
debt is incurred and is evidenced by an Amortizing Note, a Revolving Grid Note,
a Single Pay Term Note, or which is listed on Exhibit K attached hereto. Senior
Debt shall also include unsecured indebtedness payable to Pioneer Financial
Industries, Inc. in an aggregate outstanding principal amount not to exceed
$500,000 at any time.
24. "Single Pay Term Note" shall mean any note in the form of Exhibit C
attached hereto.
25. "Southwest" shall mean Southwest Bank of St. Louis, St. Louis,
Missouri.
26. "Subordinated Debt" shall mean any unsecured debt of Pioneer, payment
of which is subordinated to payment of all Senior Debt and which is evidenced by
a note generally in the form of Exhibit M attached hereto or other form approved
by the Banks.
27. "Subsidiary" shall mean each of the operating companies which are owned
by Pioneer and which are listed on Exhibit D attached hereto and each operating
company which Pioneer owns at any time hereafter except Pioneer Military
Insurance Company.
28. "Subsidiary Revolving Grid Note" shall mean all notes in the form of
Exhibit E attached hereto.
29. "Tangible Net Worth" shall mean (i) the sum of the book value of all
common stock, the liquidation value of all preferred stock, the principal amount
of all Subordinated Debt
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of every class, and the amount of all loan loss reserves and all dealer loss
reserves, less (ii) the aggregate amount of all notes payable to Subsidiaries of
Pioneer except Pioneer Military insurance which are delinquent by recency of
payment by 90 calendar days or more. For purposes of this Agreement, a payment
on a note payable to a Subsidiary of Pioneer in an amount equal to at least 95%
of the amount of the payment being made shall constitute full payment of such
payment.
30. "Total Indebtedness" shall mean the sum of (i) all Senior Debt and (ii)
all Subordinated Debt of every class.
31. "Total Required Capital" shall mean the sum of (i) the book value of
all common stock and (ii) the liquidation value of all preferred stock, less
(iii) the book value of all treasury stock and the outstanding principal amount
of all notes payable to any Subsidiary of Pioneer except Pioneer Military
Insurance which are delinquent by recency of payment by 270 calendar days or
more.
32. "UMB" shall mean UMB Bank, N.A., Kansas City, Missouri.
II. REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to enter into this Agreement and receive
requests for extensions of credit subject to this Agreement, Pioneer hereby
represents and warrants to the Banks as follows:
1. Corporate Existence and Authority. Pioneer and each of its Subsidiaries
are duly incorporated and are in good standing under the laws of their
respective states of incorporation; have all necessary permits, licenses and
franchises to enable each of them to conduct their respective business; and are
qualified to do business as a foreign corporation in every jurisdiction where
the ownership of their respective property or the nature of their respective
business requires qualification except where there would be no material adverse
effect if Pioneer or any of
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its Subsidiaries were not so qualified. Pioneer is duly authorized by all
required corporate action to execute and deliver this Agreement, to borrow
monies from the Banks and to execute and deliver notes evidencing such
borrowings in the form of Exhibits A, B and C hereto. The execution, delivery
and performance of this Agreement and of any notes evidencing any borrowings
from the Banks do not and will not conflict with (i) any provision of law or any
order of any court or government agency applicable to Pioneer, (ii) the charter
or bylaws of Pioneer or (iii) any material agreement binding upon it or upon its
properties and do not or will not result in or require the creation of any lien,
security interest or other charge or encumbrance upon or with respect to its
properties, except as contemplated by this Agreement.
2. Performance of Other Agreements. Pioneer is not a party to any
indenture, agreement, lease or other instrument, nor is it subject to any
charter or other corporate restriction which materially affects the operation of
its business in any adverse manner, and to its knowledge it is not in default in
the performance, observance or fulfillment of any material covenant or
obligation contained in any indenture, agreement, lease or other instrument to
which it is a party.
3. Tax Liabilities. Other than tax liabilities, regardless of whether
disputed, which have been adequately reserved for by Pioneer, no tax liabilities
have been asserted against Pioneer by the Internal Revenue Service or any other
governmental body, nor does Pioneer believe that any tax liabilities will be
asserted against it by the Internal Revenue Service or any other governmental
body which, if adversely determined, would have a materially adverse effect on
the condition of it, financial or otherwise.
4. Litigation. Pioneer has no knowledge of any action, suit or proceeding
(i) in any tribunal, whether at law or in equity, or (ii) by or before any
governmental instrumentality or
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other agency, whether such action, suit or proceeding be pending or threatened
against Pioneer or any of its Subsidiaries or affecting it or any of its
Subsidiaries, or any of its assets or property which, if adversely determined,
would have a materially adverse effect on its financial condition or would
otherwise adversely affect its ability to perform its obligations under this
Agreement.
5. Liens and Encumbrances. None of the property of Pioneer or of any of its
Subsidiaries is subject to any lien or encumbrance except in favor of the Banks
or, in the case of its Subsidiaries, in favor of Pioneer, and except for current
taxes not delinquent and involuntary liens, if any, on tangible personal
property which have been adequately reserved for by Pioneer.
6. Records. The books and records of Pioneer are located at its business
offices, the current address of which is ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
7. Enforceable Agreement. This Agreement and all notes and other documents
referred to herein, when executed and delivered to the Banks, will constitute
the valid and legally binding obligations of Pioneer, enforceable against
Pioneer in accordance with the respective terms thereof, subject, however, to
the provisions of all laws governing bankruptcy, insolvency, moratorium or other
similar laws affecting the rights of creditors generally or by the
unavailability of specific performance or other equitable remedies.
8. Debt Ranking. Pioneer's obligations under this Agreement and under all
notes executed by Pioneer in favor of the Banks, whether now or hereafter
existing, are superior in rank to all other indebtedness of Pioneer and to the
rights of all common and preferred shareholders.
9. Regulation U. The execution and delivery of this Agreement and all
borrowings which may occur in connection herewith will not create a violation of
Regulation U of the Board of Governors of the Federal Reserve System.
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10. ERISA. To the best knowledge of Pioneer, no prohibited transaction,
accumulated funding deficiency or reportable event has occurred with respect to
any plan to which it is a party and which is covered by Title IV of ERISA (the
Employee Retirement Income Security Act of 1974, as amended). The present value
of all benefits vested under all such plans maintained by Pioneer did not, as of
the last annual valuation date exceed the value of the assets of all such plans
allocable to such vested benefits. Neither Pioneer nor any of its Subsidiaries
participate in any multiemployer plans or, to the best knowledge of Pioneer, are
subject to any delinquent liability under ERISA in respect to any multiemployer
plan or any other plan.
III. EXTENSIONS OF CREDIT
1. Term. The term of the Senior Lending Agreement between Pioneer and the
Banks dated as of June 9, 1993 shall terminate on March 1, 1996 and the term of
this Agreement shall commence on March 1, 1996 and shall terminate on March 1,
1998, unless otherwise extended as provided herein. Unless any of the Banks
gives written notice of their objection to the other Banks and to Pioneer not
less than ninety (90) days prior to the date which is one (1) year prior to the
expiration of any existing term hereof, such existing term shall be
automatically extended for one (1) additional year. In the event of any such
objection, the existing term of this Agreement shall terminate on the last day
thereof, but all Senior Debt shall be payable by Pioneer in accordance with the
maturity stated in the note or notes evidencing such Senior Debt. In the event
all Senior Debt has not been paid in full prior to the termination of this
Agreement, all terms and conditions hereof except Sections III and IV hereof
shall remain in full force and effect until all Senior Debt is paid in full;
provided, however, that after the termination date and through the date all
Senior Debt is paid in full, any of the Banks may, in their sole discretion,
extend unsecured Subordinated Debt and only unsecured Subordinated Debt to
Pioneer on such
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terms as any of the Banks may determine and, provided, further, that this
sentence of this Section III shall also remain in full force and effect. Pioneer
shall have the right to terminate this Agreement at any time upon thirty (30)
days prior written notice to all of the Banks if all Senior Debt other than that
payable to Pioneer Financial Industries, Inc. is paid in full at the same time
on or within ten (10) days following the last day of such thirty (30) day notice
period.
2. Credit Facilities. From time to time during the term hereof Pioneer may
submit to any of the Banks a request for extensions of credit to be evidenced by
a Revolving Grid Note, an Amortizing Note, or a Single Pay Term Note. Such
requests for credit may be made verbally or in writing. Upon receipt of any such
request by any of the Banks, the Bank receiving such request shall, if it
desires to extend credit to Pioneer at that time, submit, verbally or in
writing, an offer to extend credit to Pioneer. None of the Banks have any
commitment to extend any credit requested by Pioneer and any offer by any of the
Banks to extend credit to Pioneer pursuant to a request shall be in the sole
discretion of the Banks. In the event any Bank to which a request for credit is
made by Pioneer fails to submit an offer to extend credit within five (5)
Business Days following the request, the request shall be deemed to be denied.
Upon acceptance by Pioneer of any offer of an extension of credit the extension
of any such credit, and all terms thereof, shall become a part of and be subject
in all respects to all terms and conditions of this Agreement. If requested by
Pioneer, the Banks agree to confirm in writing as of the date of each Quarterly
Certificate, the amount and terms of all credit which is available to Pioneer,
subject to the absolute discretion of the Banks, pursuant to Credit Facility
Letters which have been delivered to Pioneer by the Banks.
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The terms of this paragraph 2 of Section III of this Agreement shall not in any
way limit the obligation of the Banks pursuant to paragraph 4 of Section X
hereof to renew certain existing indebtedness of Pioneer to the Banks in the
event of failure to give the notice required by paragraph 1 of Section X hereof.
3. Note Pricing. All Revolving Grid Notes shall bear interest per annum at
the prime rate of interest as reported from time to time under Money Rates in
the Wall Street journal, adjusted daily; provided, however, Pioneer shall have
the right from time to time to increase such rate of interest in response to
changing market conditions so long as the rate of interest on all existing
Senior Debt which is payable to any Bank and which is evidenced by a Revolving
Grid Note also is increased to this new rate.
All Amortizing Notes shall bear interest per annum at a rate, calculated by
reference to data obtained from Bloomberg, equal to the ninety (90) day moving
average rate of Treasury Notes with maturities specified at the time of the
extension of credit plus 270 basis points; provided, however, Pioneer shall have
the right from time to time to increase the number of basis points in response
to changing market conditions so long as no increase in the number of basis
points is agreed upon within thirty (30) days following an extension of credit
pursuant hereto by any Bank which is evidenced by an Amortizing Note bearing an
interest rate calculated using a lower number of basis points.
All Single Pay Term Notes shall bear interest per annum at such rate as may
be agreed upon between Pioneer and the Bank extending credit to be evidenced by
a Single Pay Term Note.
Notwithstanding anything stated in this paragraph 3 of Section III to the
contrary, in the event of the increase in the ratio referred to in paragraph 6
of Section VIII the interest rate
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payable on all indebtedness evidenced by Revolving Grid Notes then outstanding
hereunder and on all indebtedness incurred thereafter which is evidenced by
Revolving Grid Notes, Amortizing Notes and Single Pay Term Notes shall
automatically be increased by 25 basis points at all times such ratio is at
least 6.5 to 1 but less than 7.5 to 1 and shall be increased by an additional 25
basis points at all times such ratio equals or exceeds 7.5 to 1.
4. Credit Facility Letters. As of March 31 of each calendar year commencing
on March 31, 1996, each Bank which is a party hereto shall, at the request of
Pioneer, deliver to Pioneer a Credit Facility Letter therein indicating the
maximum amount of each type of credit referred to therein which each Bank may be
willing to extend to Pioneer during the next twelve (12) calendar months.
Delivery of a Credit Facility Letter to Pioneer by any Bank shall not obligate
or commit such Bank in any way to extend any credit referred to therein to
Pioneer.
5. Notes and Other Documents to Continue. Notwithstanding the execution
hereof and the termination on March 1, 1996 of the Senior Lending Agreement
dated as of June 9, 1993, all notes and other documents executed pursuant to
such June 9, 1993 Senior Lending Agreement and not maturing or terminating
according to their respective terms on or prior to March 1, 1996 shall continue
in full force and effect, except to the extent amended by this Agreement, beyond
March 1, 1996 and any extensions of the term hereof, if any, until their
respective stated maturities.
IV. CONDITIONS TO EXTENSIONS OF CREDIT
No discretionary extension of credit to Pioneer pursuant to any Credit
Facility Letter which has been accepted by Pioneer shall be made by any Bank on
or after March 1, 1996 until all of the Banks have received, in the form hereof
or attached hereto, all of the following except as otherwise provided:
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(a) An originally executed copy of this Agreement duly signed by authorized
officers of Pioneer and authorized officers of the Banks, or a photocopy thereof
certified by the Agent Bank to be a true and correct copy thereof. Pioneer shall
be required to deliver the documents described in this subparagraph (a) only
once to each Bank;
(b) A promissory note for each extension of credit in the form of Exhibit
A, B or C attached hereto duly executed by an authorized officer of Pioneer,
each such note to be delivered only to the Bank extending Senior Debt to be
evidenced thereby;
(c) A duly certified resolution of the board of directors of Pioneer (which
may be relied upon until delivery to all of the Banks of a subsequent resolution
prospectively revoking the authority set forth in such earlier resolution, if
any), authorizing the execution and delivery of this Agreement and all notes and
other documents to be executed pursuant hereto or in connection herewith, such
resolution designating the officers or employees of Pioneer authorized to
execute the same. Pioneer shall be required to deliver the documents described
in this subparagraph (c) only once to each Bank; and
(d) A copy of the articles of incorporation and bylaws of Pioneer certified
by the secretary of Pioneer and a Certificate of Good Standing for Pioneer and
each of its Subsidiaries issued not more than thirty (30) days prior to the date
of this Agreement by the Secretary of State of the state of incorporation of
each thereof. Pioneer shall be required to deliver the documents described in
this subparagraph (d) only once to each Bank.
V. NEGATIVE PLEDGE AND CONDITIONAL COLLATERAL
1. Negative Pledge. Pioneer agrees that, at all times while there is any
Senior Debt payable to any of the Banks by Pioneer, it will not pledge any of
its assets to any person or entity other than the Banks nor will it allow any of
its Subsidiaries to pledge any of their assets to any person or entity other
than Pioneer.
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2. Collateral: Notes. Pioneer hereby grants to all of the Banks a security
interest in all notes payable to Pioneer by any and all of its Subsidiaries now
or at any time hereafter in the form of the Subsidiary Revolving Grid Note or
otherwise. Upon execution hereof, Pioneer will deliver to the Agent Bank
possession of all existing notes payable by any and all of its Subsidiaries to
it and within three (3) days after the future execution of any note payable by
any Subsidiary to Pioneer it will deliver possession of the same to the Agent
Bank. All notes payable to Pioneer by its Subsidiaries shall be endorsed in
blank when delivered to the Agent Bank by Pioneer. The Banks agree that they
will not, prior to the declaration of a default hereunder, demand payment,
except as otherwise expressly provided in this Agreement, of any note in the
possession of the Agent Bank which is payable to Pioneer by any of its
Subsidiaries because any such note is payable on demand. Pioneer also hereby
assigns to all of the Banks, and grants to all of the Banks a security interest
in, all of its rights under that certain Assignment of Note Payments between
Pioneer and each of its Subsidiaries, except Pioneer Military Insurance, dated
June 9, 1993 to directly receive from each of such Subsidiaries the proceeds of
all note payments receivable by its Subsidiaries from their customers. The Banks
further agree to forbear exercise of their rights under such Assignment of Note
Payments unless and until Pioneer receives notice from any Bank declaring
Pioneer to be in default hereunder because of the occurrence of an Event of
Default.
3. Conditional Collateral: Stock. As of the time any Bank declares Pioneer
to be (a) nonperforming under this Agreement because of the occurrence of a
Performance Event or (b) in default because of the occurrence of an Event of
Default, Pioneer hereby grants to the Banks a security interest in all shares of
the capital stock, whether now or hereafter issued and outstanding, of each of
its Subsidiaries listed on Exhibit D attached hereto and all other
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Subsidiaries which may hereafter be acquired or come into existence and at that
time, upon request of the Banks, Pioneer agrees to deliver, within three (3)
Business Days of receipt of a notice declaring nonperformance, to the Agent Bank
all stock certificates evidencing all such shares with stock powers attached
endorsed in blank. Such security interest shall attach to said shares of stock
upon delivery of certificates evidencing the same to the Agent Bank. The Banks
agree to forbear exercising any rights or remedies which they may have in
connection with their security interest in all such capital stock unless and
until any Bank declares Pioneer to be in default hereunder because of the
occurrence of an Event of Default.
4. Collection of Collateral. In the event the Banks are entitled to collect
payment of notes payable to Subsidiaries of Pioneer, the Banks agree that they
will exercise good faith and commercially reasonable efforts to collect payment
of such notes; provided, however, the Banks shall have no obligation to pursue
collection of any note which is delinquent by recency of payment by 270 calendar
days or more.
5. Release of Stock. If any audit of Pioneer's financial statements, or
other certification deemed acceptable by the Banks which is issued by
independent certified public accountants, discloses that the Performance Event
or Events which caused Pioneer to previously deliver to the Banks the stock
described in Section V (3) hereof no longer exist as of the last day of the
period covered by such audited financial statements nor at the time of delivery
of such audited financial statements to the Banks, and Pioneer certifies in
writing to the Banks that it is not then in default under the terms of this
Agreement and that no Performance Event has occurred and is then continuing, the
Banks shall redeliver possession of such certificates evidencing such stock to
Pioneer. In the event of any such redelivery, the Banks shall have the
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right to possession of such stock in accordance with the terms of this Agreement
at any time and from time to time thereafter upon the future occurrence of any
Performance Event.
VI. PERFORMANCE EVENT
In the event of the occurrence of a Performance Event and any Bank, after
satisfying all requirements stated in paragraph 2 of Section X of this Agreement
with respect to all other Banks which are a party hereto, then exercises its
right to declare Pioneer to be nonperforming under the terms of this Agreement,
Pioneer agrees that the Banks shall then and thereafter have the right to
receive eighty percent (80%) of all funds received by or under the control of
Pioneer which are proceeds of notes payable to the Subsidiaries of Pioneer,
except Pioneer Military Insurance. Upon receipt of written notice from the Agent
Bank, Pioneer will immediately commence and continue depositing on the fifth
(5th) Business Day of each month eighty percent (80%) of all funds received by
or under the control of Pioneer which are proceeds of notes payable to the
Subsidiaries of Pioneer, except Pioneer Military Insurance, to an account at the
Agent Bank established ratably for the benefit of all Banks which are parties to
this Agreement. The ratable amount payable to each Bank from funds payable for
the ratable benefit of all Banks in accordance with the provisions of the
immediately preceding paragraph shall be calculated by multiplying the total
amount payable for the benefit of all Banks by a fraction, the numerator of
which shall equal the total outstanding principal indebtedness to such Bank,
regardless of the stated maturity date or dates, evidenced by Secured Revolving
Grid Notes, Secured Amortizing Notes and Secured Single Pay Term Notes and the
denominator of which shall equal the total outstanding principal indebtedness to
all Banks, regardless of the stated maturity date or dates, evidenced by Secured
Revolving Grid Notes, Secured Amortizing Notes and Secured Single Pay Term
Notes.
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VII. AGENT BANK
1. Agent. Upon execution of this Agreement, the Agent Bank agrees to
establish an account for the benefit of all of the Banks which are parties to
this Agreement to be used for the deposit of funds for the benefit of all of the
Banks pursuant to this paragraph of this Agreement. (a) If the Banks have the
right to receive eighty percent (80%) of all funds received by or under control
of Pioneer pursuant to Section VI hereof, Pioneer shall transfer on the fifth
(5th) Business Day of each month eighty percent (80%) of all such proceeds to an
account established at the Agent Bank for the benefit ratably of all of the
Banks which are parties hereto. (b) If, because of the declaration of an Event
of Default, the Banks are permitted to direct that all proceeds of all notes
payable to Pioneer's Subsidiaries, except Pioneer Military Insurance, by their
customers be paid to an account designated by and subject to the exclusive
control of the Banks, the Agent Bank shall take possession of all such notes and
collect all payments and take such other actions as the Banks may direct, all
ratably for the pro rata benefit of the Banks.
2. Two-Thirds Rule. The Agent Bank shall follow all written directions from
the Banks with respect to collection and disposition of funds deposited in the
account established by it for the benefit of the Banks and collection of
collateral so long as at least those Banks which hold sixty-six and two-thirds
percent (66 2/3%) of the outstanding principal amount of all Senior Debt of
Pioneer except Senior Debt listed on Exhibit K and except Senior Debt payable to
Pioneer Financial Industries, Inc. have approved such directions, and so long as
such instructions are for the ratable benefit of all Banks. In the event those
Banks which hold sixty-six and two-thirds percent (66 2/3%) of the outstanding
principal amount of all Senior Debt of Pioneer do not approve of any written
instruction, the Agent Bank shall use its own discretion in the collection and
disposition of funds deposited into such account and the collection of
collateral. In all cases other than the collection and disposition of funds and
collection of collateral covered by this
18
paragraph 2 of Section VII and except as may otherwise be expressly provided in
this Agreement, all of the Banks must approve all instructions to the Agent and
amendments to this Agreement.
3. Change of Agent. The Agent Bank may be changed upon thirty (30) Business
Days prior notice to the then Agent Bank at any time or from time to time upon
the written agreement of those Banks which are parties to this Agreement and
which, at the time of any such designation, hold sixty-six and 2/3 percent (66
2/3%) of the outstanding principal amount of all Senior Debt of Pioneer except
Senior Debt listed on Exhibit K and except Senior Debt payable to Pioneer
Financial Industries, Inc.
4. Indemnity. All of the Banks, on a pro rata basis to the extent of each
of the Bank's percentage interest in the total principal amount of all Senior
Debt except Senior Debt listed on Exhibit K and except Senior Debt payable to
Pioneer Financial Industries, Inc. shall indemnify the Agent Bank and hold it
harmless from all loss, cost, damage and expense whatsoever in connection with
its performance as the agent of the Banks hereunder except in the event of the
Agent Bank's gross negligence or its willful misconduct.
VIII. COVENANTS OF PIONEER
Pioneer covenants and agrees from the date hereof and until payment in full
of all indebtedness evidenced by any note in the form of Exhibits A, B or C
attached hereto, that Pioneer assumes the obligations set forth below:
1. Mergers. Pioneer will not, nor will it allow any of its Subsidiaries,
without the prior written consent of the Banks, to be a party to any merger,
consolidation or other combination of any kind with any other person or business
entity nor will it or any of its Subsidiaries,
19
without the prior written consent of the Banks, acquire all or any significant
portion of all of the assets of any other person or business entity nor will it
or any of its Subsidiaries, without the prior written consent of the Banks,
dispose of all or any significant portion of their respective assets; provided,
however, this provision shall not prohibit Pioneer and any or all of its
Subsidiaries from merging any one or all into the other nor shall it prohibit
Pioneer or any of its Subsidiaries from selling to or acquiring from third
parties substantial blocks of notes receivable in the ordinary course of the
business of Pioneer and its Subsidiaries in a manner consistent with past
practices; and, provided, further, that so long as ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ is the
chief executive officer in the surviving corporation of a merger, Pioneer shall
not be prohibited from acquiring another corporation or corporations by way of
merger if (i) such corporation or corporations are in the same business or a
business that is directly or closely related to the business presently conducted
by Pioneer and its Subsidiaries, (ii) such merger may reasonably be expected to
expand and enhance the services presently being provided to the customers of the
Subsidiaries of Pioneer and (iii) such merger may not reasonably be expected to
cause any materially adverse financial effect on Pioneer and its Subsidiaries,
taken as a whole and will not cause the occurrence of a Performance Event after
giving effect thereto.
2. Nonconforming Debt. Pioneer will not, without the prior written consent
of all Banks which are a party to this Agreement, incur, create or permit to
exist any indebtedness except (a) Senior Debt (b) those specific unsecured debt
obligations listed in Exhibit K attached hereto (c) Subordinated Debt (d) trade
payables and leases incurred in the ordinary course of business, and (e)
unsecured indebtedness payable to Pioneer Financial Industries, Inc. not to
exceed at any time the aggregate outstanding principal amount of Five Hundred
Thousand and No/100 Dollars ($500,000.00) and which is a part of Senior Debt.
3. Indebtedness of Subsidiaries. Pioneer will not allow any of its
Subsidiaries to incur, create or permit to exist indebtedness to any person or
entity other than Pioneer except for
20
trade payables and lease obligations for real estate, fixtures and equipment
incurred in the ordinary course of each of such Subsidiaries' respective
business; and provided further that the aggregate of all such indebtedness,
excluding real property lease obligations, to persons and entities other than
Pioneer for each branch office location of each Subsidiary shall not exceed
Fifty Thousand Dollars ($50,000.00) at any time.
4. Senior Debt/Tangible Net Worth Ratio. Pioneer will at no time permit its
Senior Debt to exceed 4.75 times its Consolidated Tangible Net Worth.
5. Total Required Capital. At all times Pioneer will maintain a
Consolidated Total Required Capital of at Least Four Million Five Hundred
Thousand Dollars ($4,500,000.00) plus fifty percent (50%) of the cumulative
positive net income earned by Pioneer during each of its fiscal years ending
subsequent to September 30, 1992.
6. Consolidated Total Indebtedness/Total Required Capital Ratio. Pioneer
will at no time permit the ratio of Consolidated Total Indebtedness to
Consolidated Total Required Capital to exceed 8 to 1.
7. Senior Debt/Net Receivable Ratio. Pioneer will at no time permit the
ratio of Senior Debt to all Consolidated Net Receivables to exceed .80 to 1.
8. Delinquency Adjusted Leverage Ratio. Pioneer will at no time permit the
ratio of Consolidated Total Indebtedness to Adjusted Capital to exceed 8.5 to 1.
9. Loan Loss Reserve. Pioneer agrees that it will maintain at all times a
loan loss reserve in an amount which is equal to or greater than the loan loss
reserve shown on its audited financial statements as of the end of its most
recent fiscal year and at no time shall the loan loss reserve be less than 2% of
Consolidated Net Receivables.
21
10. Quarterly Certificate/Compliance Certificate. Pioneer agrees to deliver
to all of the Banks within thirty (30) calendar days after the close of each
calendar quarter a completed Quarterly Certificate and a completed Compliance
Certificate, such certificates being certified by an authorized officer of
Pioneer.
11. New Offices. Pioneer will not open any new branch office location nor
will it allow any Subsidiary to open a new branch office location during any
fiscal year following a fiscal year during which Pioneer and its Subsidiaries
had a consolidated net operating loss except, however, this prohibition shall
not prevent Pioneer or any of its Subsidiaries from moving an existing branch
office location to a new location.
12. Redemptions/Guarantees/Advances. Pioneer will not make any distribution
of assets to its shareholders except payments of dividends declared in the
ordinary course of business which do not create the occurrence of a Performance
Event or an Event of Default hereunder nor will it purchase, redeem, retire or
otherwise acquire any shares of its stock; Pioneer will not make or guarantee
any loan or advance to any person or entity except to its Subsidiaries, and
except to stockholders, officers or employees of Pioneer in an amount not
exceeding Fifty Thousand Dollars ($50,000.00) in the aggregate except for
reasonable compensation for services performed or expenses incurred in the
ordinary course of Pioneer's business. Pioneer will not allow any of its
Subsidiaries, now existing or hereafter acquired or created, to make or
guarantee any loan or advance to any person or entity whatsoever except to
employees for reasonable compensation for services performed or expenses
incurred in the ordinary course of each Subsidiary's business.
13. Compliance With Laws. Pioneer will comply in all material respects with
all applicable laws, rules, regulations and orders of any governmental authority
which has
22
jurisdiction over it; provided, however, this paragraph 13 of Section VIII shall
not prohibit Pioneer from contesting in good faith the application to it or any
of its Subsidiaries of any law or regulation of any governmental authority.
14. Service Charges. Pioneer will not make any payment to Pioneer Financial
Industries, Inc. in any fiscal year for services performed or reasonable
expenses incurred in an aggregate amount greater than Six Hundred Fifty Thousand
Dollars ($650,000.00); provided, however, such amount may be increased on each
anniversary of this Agreement by a percentage amount equal to the percentage
increase in the Consumer Price Index published by the United States Bureau of
Labor for the calendar year then most recently ended.
IX. FINANCIAL INFORMATION
1. Information. Pioneer agrees to provide to all of the Banks all of the
following during the term of this Agreement:
(a) Quarterly financial statements, in the form used by Pioneer as of
the date hereof, within thirty (30) calendar days after the last Business
Day of each calendar quarter. Said financial statements shall contain at a
minimum a balance sheet, an income statement and a Quarterly Certificate.
(b) Audited financial statements, prepared in accordance with
generally accepted accounting principles consistently applied, such
statements to be prepared by an independent certified public accounting
firm acceptable to the Banks, an annual management letter prepared by such
independent certified public accounting firm, and a direct cash lending
questionnaire in a form consistent with industry standards, all of which is
to be delivered to the Banks within ninety (90) calendar days after the
last business day of its fiscal year.
(c) Projected financial statements for each fiscal year not later than
thirty (30) calendar days following the first Business Day of each fiscal
year.
23
(d) Such other information as the Banks may reasonably request at any
time and from time to time.
2. Inspection Rights. Pioneer further agrees to reasonably permit from time
to time agents or representatives of each of the Banks to examine Pioneer's
books and records and to visit all business locations of Pioneer and of its
Subsidiaries and discuss its business and financial affairs with any of its
officers or employees; provided, however, that Pioneer shall not be required to
make available any information, the disclosure of which would otherwise cause
Pioneer to be in violation of any law unless the Banks, or their agents or
representatives, execute a confidentiality agreement in a form which would
enable Pioneer to legally disclose any such information to the Banks.
X. AGREEMENT AMONG BANKS
1. Default Following Nonperformance. After Pioneer has been declared to be
nonperforming because of the occurrence of a Performance Event, all of the Banks
agree that no Bank which is a party hereto may declare Pioneer to be in default
other than as the result of the occurrence of an Event of Default listed in
paragraphs 13(a), 13(c), 13(e) and 13(g) of Section I hereof for at least one
hundred twenty (120) Business Days unless all such Banks waive such prior notice
requirements.
2. Declaration of Intentions.
(a) Prior to declaring Pioneer to be nonperforming or in default under
the terms of this Agreement or otherwise demanding payment of any Senior
Debt, any Bank which is a party hereto shall give Pioneer and all of the
Banks which have extended Senior Debt to Pioneer, ten (10) Business Days
prior written notice of its intent to declare nonperformance or the
occurrence of an Event of Default or make demand for payment.
24
(b) Any Bank giving notice to Pioneer and the other Banks pursuant to
paragraph 2(a) of this Section X shall grant to all of the other Banks
which are a party to this Agreement the right to purchase, on a pro rata
basis, all Senior Debt of the Bank intending to declare nonperformance or a
default or demand payment, such right to purchase Senior Debt to be
available during the period of ten (10) Business Days following receipt of
such notice. In the event any Bank receiving such notice of intent to
declare nonperformance or a default or a demand of payment elects not to
purchase its pro rata share of the Senior Debt with respect to which
payment is to be demanded, the remaining Bank or Banks holding Senior Debt
shall succeed, on a pro rata basis between themselves, to the purchase
rights of the Bank not desiring to purchase its pro rata portion of such
Senior Debt. Any Bank purchasing any Senior Debt pursuant to this
subparagraph shall be entitled to receive upon payment therefor in good
funds all notes evidencing such purchased Senior Debt endorsed in blank.
(c) No Bank which is a party to this Agreement will, without the prior
written consent of all of the Banks which are a party to this Agreement,
seek collateral, other than as provided for herein, for all or any part of
the Senior Debt nor will any Bank initiate any legal proceedings against
Pioneer or any of its Subsidiaries or affiliates without giving ten (10)
Business Days prior written notice to all other Banks which are a party
hereto. Any notice which may be given pursuant to this paragraph may be
given concurrently with any other notice which may be given pursuant to
this paragraph.
3. All Credit To Conform. All of the Banks which are parties to this
Agreement agree not to extend any credit to Pioneer and its Subsidiaries unless
such credit is extended in conformity with and subject to the terms of this
Agreement and, if prior to termination hereof, is evidenced by a note in the
form of Exhibit A, B or C attached hereto.
25
4. Renewal Obligation. All of the Banks agree that in the event they
do not advise all of the other Banks and Pioneer of their intent not to renew
indebtedness of Pioneer evidenced by any Single Pay Term Note at least ninety
(90) Business Days prior to the maturity of any such note, the outstanding
indebtedness evidenced by any such note will be renewed on substantially the
same terms as the existing note except for the interest rate payable thereon
which may be adjusted to a current rate unless all other Banks which are a party
to this Agreement and Pioneer waive in writing, on a case by case basis, such
ninety (90) day prior notice requirement.
XI. ADDITION OF OTHER BANKS
Pioneer shall be entitled to request that other banks or financial
institutions become parties to this Agreement but shall not incur Senior Debt
with any other bank or financial institution unless such bank or financial
institution has become a party hereto. Any bank or financial institution may
become a party hereto upon the request of Pioneer so long as all of the
following conditions are met:
1. Such new bank or financial institution must agree to all terms and
conditions of this Agreement by execution and delivery to Pioneer of an
Amendment to this Agreement in the form attached hereto as Exhibit I. In the
event any new bank or financial institution desires to receive an updated
opinion of counsel dated as of the effective date when such new bank or
financial institution is made a party hereto, the expense of such updated
opinion must be borne by the new bank or financial institution.
2. Pioneer must execute any amendment which has been executed by a new bank
or other financial institution and deliver an original copy of the same to each
Bank which is already then a party to this Agreement. Unless any Bank which is a
party hereto objects in a written notice delivered to Pioneer within ten (10)
Business Days of the objecting Bank's receipt of the proposed amendment, the
proposed amendment will automatically become effective and the new
26
bank or financial institution will become a party hereto on the eleventh (11th)
Business Day following the latest date of delivery of the proposed amendment to
any of the Banks already a party hereto. Within three (3) Business Days
following the effective date of any proposed amendment, Pioneer agrees to send
written notice of such effectiveness to all Banks which are then parties to this
Agreement.
XII. ACCELERATION
In the event of the occurrence of any one or more Events of Default which
are defined in paragraph 13 of Section I of this Agreement, and if any such
Event of Default shall be continuing, any of the Banks may, after compliance
with the provisions of paragraph 2 of Section X of this Agreement, declare the
entire principal amount of all Senior Debt of Pioneer owing to the declaring
Bank, together with interest accrued thereon, to be immediately due and payable
to the declaring Bank. Upon the declaration of any of the Banks of the
occurrence of as Event of Default, after the declaring Bank has complied with
the terms of paragraph 2 of Section X hereof, the Agent Bank shall have the
right, on behalf of all the Banks, to possession of all notes payable to all
Subsidiaries of Pioneer by their respective customers and the right to direct
that all proceeds of such notes be paid directly to an account designated by and
subject to the exclusive control of the Banks at the Agent Bank and (ii) have
access to and use of, all computer hardware and software and related records,
instructions and manuals used by Pioneer or any of its Subsidiaries in
connection with the documenting, evidencing, listing, reporting and collecting
of all notes receivable of all Subsidiaries of Pioneer and an irrevocable Power
of Attorney therefor is hereby granted to the Agent Bank. Upon the declaration
of the occurrence of an Event of Default by any of the Banks, the declaring Bank
may proceed to enforce payment of all indebtedness of Pioneer to it under this
Agreement or otherwise and it may exercise any and all rights and remedies
afforded to it by the Uniform Commercial Code of Missouri or otherwise
27
possessed by it. Any Bank declaring Pioneer to be in default hereunder because
of the occurrence of an Event of Default shall, after compliance with the notice
requirements of paragraph 2(a) of Section X of this Agreement, give written
notice of such declaration of default to all other Banks which are parties
hereto.
XIII. OPINION OF COUNSEL
Prior to the first extension of any new credit by any Bank to Pioneer after
the date hereof, Pioneer agrees to furnish to each of the Banks an opinion of
counsel to Pioneer in the form of Exhibit L attached hereto to the effect that
Pioneer is a corporation duly existing and in good standing under the laws of
the state of Missouri; that to the best of such counsel's knowledge and belief,
Pioneer is qualified to do business as a foreign corporation and is in good
standing in every jurisdiction where the ownership of its properties or the
nature of its business requires qualification; that Pioneer has full power to
execute and deliver this Agreement, and all notes and other documents to be
executed pursuant hereto or in connection herewith; that all such actions have
been duly authorized by all necessary corporate action, and are not in conflict
with the charter or bylaws of Pioneer, nor to the best of such counsel's
knowledge and belief in conflict with any material agreement binding upon
Pioneer; that this Agreement and the Revolving Grid Notes, Amortizing Notes and
Single Pay Term Notes when executed and delivered by Pioneer to the Banks will
be the legal and binding obligations of Pioneer, subject to bankruptcy and other
similar laws effecting the enforcement of creditor's rights generally and the
unavailability of specific performance or other equitable remedies; that as of
the date of this Agreement, such counsel knows of no litigation or other
proceeding pending or threatened against Pioneer of the kind referred to in
paragraph 4 of Section II hereof.
28
XIV. GENERAL
1. Notices. All notices hereunder shall, unless otherwise specified herein,
or unless any party hereto shall subsequently give written notice to the others
specifying some other address, be deemed to be given when actually received, or
if mailed, three (3) Business Days after being deposited postage prepaid in the
United States mail, certified mail return receipt requested, addressed to the
other parties hereto at their respective present mailing addresses which are:
Bank of Boston ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - Box ▇▇▇▇ ▇▇▇▇. ▇▇-▇▇-▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Director Financial
Institution
Boatmen's First National Bank of Kansas City
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
P.O. Box 419038 ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
First National Bank of Kansas
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. Shy
LaSalle National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Liberty Bank and Trust Company of Oklahoma City, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
P.O. Box 25848
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
Mercantile Bank of Kansas City
1101 Walnut
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
29
NBD Bank
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
Pioneer Financial Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Southwest Bank of St. Louis
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
UMB Bank, N.A.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. Page
2. No Waivers. No failure or delay by the Agent Bank or any of the other
Banks in exercising any right, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial modification or waiver of any
provision of this Agreement or of any note to be executed pursuant hereto or in
connection herewith or a single or partial exercise of any such right, power or
privilege preclude any other or further exercise of such or of any other right,
power or privilege.
3. Offsets. Pioneer specifically agrees that upon the declaration of an
occurrence of an Event of Default, and if such Event of Default is continuing,
the Banks shall be entitled to exercise any right of setoff or banker's lien at
any time, irrespective of the stated maturity of any note executed pursuant
hereto or in connection herewith evidencing any indebtedness of Pioneer to the
Banks; provided, however, that all Banks exercising any right of setoff shall
transfer all funds set off to the Agent Bank to be distributed ratably for the
benefit of all of the Banks.
30
4. Governing Law. This Agreement and all notes executed pursuant hereto or
in connection herewith shall be deemed to be contracts made under and shall be
construed in accordance with the laws of the state of Missouri:
5. WAIVER OF JURY TRIAL. IN THE EVENT OF ANY DISPUTE BETWEEN PIONEER AND
ANY OF THE BANKS RELATED IN ANY WAY TO THIS AGREEMENT WHICH BECOMES THE SUBJECT
OF ANY JUDICIAL PROCEEDING IN ANY COURT OF LAW, PIONEER HEREBY WAIVES ANY RIGHT
WHICH IT MIGHT OTHERWISE HAVE TO A TRIAL BY JURY.
6. Severability. In the event any one or more of the provisions of this
Agreement or any note executed pursuant hereto or in connection herewith shall
be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
7. Expenses. Pioneer agrees to pay all reasonable out-of-pocket expenses,
including reasonable attorneys fees, incurred by the Banks in connection with
the enforcement of the rights of the Banks under this Agreement or any of the
notes executed pursuant hereto or in connection herewith and in connection with
any Amendment, extension or renewal of any thereof, or waivers thereunder.
8. Counterparts. This Agreement, and any Amendment hereto, may be executed
in two or more counterparts, each of which shall constitute an original, but
when taken together, shall constitute but one agreement.
9. Titles and Headings. All titles and headings which are used in this
Agreement are used solely for the convenience of the parties hereto and are not
part of the agreement of the parties.
31
10. Conflicting Documents. In the event of any conflict between the terms
of this Agreement and the terms of any note or other document executed pursuant
hereto or in connection herewith, the terms of this Agreement shall control.
11. Assignment. This Agreement and all provisions hereof shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that Pioneer may not assign any
rights or obligations hereunder without the prior written consent of the Banks;
and provided further that Pioneer acknowledges and agrees that the Banks may, in
their sole discretion and without notice to Pioneer, grant one or more
participation interests in any of the obligations of Pioneer hereunder to any
other lender.
12. All provisions of all documents executed and delivered by Pioneer to or
for the benefit of the Banks pursuant to the Senior Lending Agreement between
Pioneer and the Banks dated as of June 9, 1993, except to the extent expressly
modified by this Agreement, shall remain in full force and effect and
enforceable in accordance with their respective terms and any reference in any
such documents to such Senior Lending Agreement shall be deemed to refer to this
Agreement and Pioneer shall be deemed to have executed and delivered all such
documents to or for the benefit of the Banks as if it had executed or
reconfirmed the validity and enforceability thereof in writing and delivered all
such documents as originals dated as of' the date hereof pursuant to the terms
of this Agreement.
13. Statutory Statement, Disclosure Required by Mo. Rev. Stat. Section
432.045. ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW
SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU, PIONEER, AND US, THE BANKS, FROM
MISUNDERSTANDING OR
32
DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN
THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT
BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT. IN WITNESS
WHEREOF, the parties hereto have executed this Agreement as of the day and year
first written above. PIONEER FINANCIAL SERVICES, INC.
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By_____________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
BANK OF BOSTON BOATMEN'S FIRST NATIONAL BANK OF KANSAS CITY
/S/ ILLEGIBLE /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By_____________________________ By______________________________
Name: Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President Title: Vice President
FIRST NATIONAL BANK OF KANSAS LASALLE NATIONAL BANK
/S/ ▇▇▇▇▇ ▇. SHY /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By_____________________________ By_______________________________
Name: ▇▇▇▇▇ ▇. Shy Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Second Vice President Title: First Vice President
LIBERTY BANK AND TRUST COMPANY OF OKLAHOMA CITY, NATIONAL MERCANTILE BANK OF KANSAS CITY
ASSOCIATION
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ /S/ ▇▇▇▇▇ ▇. BLUE
By______________________________ By_______________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. Blue
Title: Vice President Title: E.V.P.
33
NBD BANK SOUTHWEST BANK OF ST. LOUIS
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By _______________________________ By _____________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President Title: Vice President
UMB BANK, N.A.
/S/ ▇▇▇▇▇▇▇ ▇. PAGE
By _______________________________
Name: ▇▇▇▇▇▇▇ ▇. Page
Title: Executive Vice President
34
EXHIBIT A
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SECURED
REVOLVING GRID NOTE
PIONEER FINANCIAL SERVICES, INC.
$__________________ and Interest ____________, 19____
On Demand, for value received, Pioneer Financial Services, Inc., a Missouri
Corporation, promises to pay to _____________________________________
(hereinafter called "Bank") or to its order at its main office, in 12 equal
monthly principal payments, the principal sum of the lesser of: (i)
_________________ dollars; or (ii) the unpaid principal amount of all advances
made by Bank; together with interest on all principal amounts outstanding
hereunder from time to time, from date(s) of disbursement(s) until paid, at the
rate of the Bank's _____________ per annum (365 day year), adjusted daily, with
all accrued interest payable monthly in arrears on the 10th day of each month.
The first installment of principal shall commence on the 10th day of the month
following 30 days after demand was made on Maker.
"Collateral" as used herein shall mean all notes payable to Maker by any
and all of its Subsidiaries which are listed on Exhibit D attached to the Senior
Lending Agreement described below and all other Subsidiaries as otherwise
defined in said Agreement, and all payments due such Subsidiaries from their
customers which have been assigned to Maker by such Subsidiaries pursuant to an
Assignment of Note Payments described below.
The undersigned Maker hereby grants to Bank a security interest in the
Collateral for the payment of all amounts due under this note and for the
payment of all other present and future obligations to the Bank incurred
pursuant to the Senior Lending Agreement described below.
If any of said installments, or any part thereof, is not paid when due and
remains unpaid after proper notice thereof is given by Bank to Maker, then the
entire indebtedness then remaining unpaid shall, at the option of the holder
hereof, and without notice of demand, become immediately due and payable,
subject to the terms of the Senior Lending Agreement described below. Any amount
not paid shall thereafter bear interest until paid at the rate hereinbefore
specified, plus two percent per annum. Unless Bank, in its sole discretion, may
from time to time otherwise direct, all payments shall be applied first to
payment of accrued interest, and then to reduction of the principal sum due
hereunder. Any part of the outstanding principal balance hereof may be paid
prior to Demand without penalty, and if less than the principal sum stated above
is outstanding, the undersigned, may from time to time under Demand receive, but
the Bank has no commitment to make, further disbursements hereunder; provided,
however, the aggregate amount of all principal amounts outstanding hereunder
shall at no time exceed the face amount of this note; and provided further, that
each and every disbursement made under this Revolving Grid Note shall be at the
Bank's sole discretion. All advances made by Bank to the undersigned and all
principal and interest payments thereon shall be recorded on the Schedule of
Disbursements and Payments of Principal; provided, however, that the failure to
make such notation shall not affect the obligation of the undersigned Maker to
repay the outstanding principal amount of, together with interest on, any
advances made by the Bank to the undersigned Maker pursuant to the Senior
Lending Agreement described below; and Bank is hereby unilaterally authorized to
make such notations thereon. The amounts recorded shall be presumptive evidence
of the outstanding principal balance of this Revolving Promissory Note.
This Note is the "Note" referred to in the "Credit Facility Letter" dated
_____________, 19___, and is one of the Revolving Grid Notes referred to in the
Amended and Restated Senior Lending Agreement
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
dated March 1, 1996, among Maker, the Bank, and certain other financial
institutions.
PIONEER FINANCIAL SERVICES, INC.
a Missouri Corporation (Maker)
By:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Note No. Tax Identification No. ▇▇-▇▇▇▇▇▇▇
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DATE AMOUNT OF AMOUNT OF UNPAID
INTEREST PRINCIPAL PRINCIPAL PRINCIPAL DISBURSEMENT
DATE PAID TO INTEREST RATE INTEREST PAID DISBURSEMENT PAYMENT BALANCE APPROVED BY
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EXHIBIT B
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SECURED
AMORTIZING NOTE
PIONEER FINANCIAL SERVICES, INC.
SENIOR NOTE
$__________________ and interest ____________, 19____
FOR VALUE RECEIVED, PIONEER FINANCIAL SERVICES, INC. promises to pay
_________________________________________ (Bank) at its main office, or to its
order, the principal sum of _______________________________ Dollars, together
with interest on the unpaid principal balance from the date of this note until
paid, at the rate of _____ percent per annum. This note shall be payable as
follows: (i) For the period commencing with the date of this note and extending
to _________________________, accrued interest only (360 day year) is
payable monthly at the above rate, on the 10th day of each month, and (ii) for
the period commencing principal and interest (360 day year) shall be payable in
(___) consecutive monthly installments of Dollars ($____________ ) each, the
first to become due on and on the 10th day of each month thereafter until the
Indebtedness evidenced by this note is fully paid; provided, however, the final
maturity date of this note shall be ______________________. Any amount not paid
when due shall thereafter bear interest until paid at the rate herein before
specified, plus two percent annum. Unless Bank, in its sole discretion, may from
time to time otherwise direct, all payments shall be applied first to payment of
accrued interest, and then to reduction of the principal sum due hereunder.
"Collateral" as used herein shall mean all notes payable to Maker by any
and all of its Subsidiaries which are listed on Exhibit D attached to the Senior
Lending Agreement described below and all other Subsidiaries as otherwise
defined in said Agreement, and all payments due such Subsidiaries from their
customers which have been assigned to Maker by such Subsidiaries pursuant to an
Assignment of Note Payments described below.
The undersigned Maker hereby grants to Bank a security interest in the
Collateral for the payment of all amounts due under this note and for the
payment of all other present and future obligations to the Bank incurred
pursuant to the Senior Lending Agreement described below.
The Maker will not prepay more than two scheduled payments of the principal
amount of this note, unless the Net Receivables owned by the Maker at the end of
any month are less than 70 percent of the greatest amount of net consolidated
Net Receivables outstanding at any quarter end during the term of this note,
except as otherwise provided under the provisions of paragraph 1 of Section III
of the Amended and Restated Senior Lending Agreement dated March 1, 1996.
This Note is the "Note" referred to in the "Credit Facility Letter" dated
_________, ____, and is one of the Amortizing Notes referred to in the
Amended and Restated Senior Lending Agreement dated March 1, 1996,
among Maker, the Bank, and certain other financial institutions.
PIONEER FINANCIAL SERVICES, INC.
a Missouri Corporation (Maker)
By__________________________________________
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Note No.____________ Tax Identification No. ▇▇-▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
EXHIBIT C
-------------------------------------------------------------------------------
SECURED
SINGLE PAY TERM NOTE
$__________________ Dated as of _________________
FOR VALUE RECEIVED, PIONEER FINANCIAL SERVICES, INC., a Missouri
corporation, promises to pay to_____________________________ (herein the
"Bank"), or order, on the Single Pay Note Expiry Date shown in the Credit
Facility Letter described below, the principal amount of ($__________ ) or such
lesser aggregate amount of advances as have been made by Bank pursuant to the
Credit Facility Letter described below and which remain outstanding, which
amount shall be due and payable in lawful money of the United States of America
in immediately available funds. Maker further promises to pay interest and
principal when due, to the Bank at the Bank's office located at
________________________________ or such other office of the Bank as the Bank
may direct in writing.
The undersigned further promises to pay interest on the unpaid principal
balance from the date hereof until paid in full at the rates and at the times as
follows:
An advance will bear interest ______________, as determined by the Bank (on
the basis of a 365 day year), in its sole discretion for fixed periods selected
by the Maker (but not to exceed the Expiry Date). Interest is payable monthly in
arrears on the tenth day of each month, or on the date of any payment or part
payment of any advance. Any amount which is not paid when due hereunder shall
bear interest until paid in full at the Bank's prime rate of interest plus two
percent per annum.
"Collateral" as used herein shall mean all notes payable to Maker by any
and all of its Subsidiaries which are listed on Exhibit D attached to the Senior
Lending Agreement described below and all other Subsidiaries as otherwise
defined in said Agreement, and all payments due such Subsidiaries from their
customers which have been assigned to Maker by such Subsidiaries pursuant to an
Assignment of Note Payments described below.
The undersigned Maker hereby grants to Bank a security interest in the
Collateral for the payment of all amounts due under this note and for the
payment of all other present and future obligations to the Bank incurred
pursuant to the Senior Lending Agreement described below.
All advances made by the Bank to the undersigned pursuant to the Credit
Facility Letter and all payments and prepayments made on account of the
principal balance hereof may be recorded by the Bank on the schedule annexed
hereto; provided, however, that the failure to make a notation shall not affect
the obligation of the undersigned hereunder with respect to payments or
principal or interest on this Note and provided, further, that Bank shall
provide a written notice and photocopy of such notations simultaneously to
Maker.
The Maker may only prepay an advance at the end of the applicable fixed
period except as otherwise provided herein and except as otherwise provided
under the provisions of paragraph 1 of Section III of the Amended and Restated
Senior Lending Agreement dated March 1, 1996. In the event that the Maker does
repay an advance on a day other than the last day of a fixed period, the Maker
shall promptly reimburse the Bank for all reasonably demonstrated losses and
expenses incurred in liquidating or employing deposits obtained from third
parties to make or maintain the advance or any part thereof. Amounts which are
repaid may be re-borrowed, subject to the terms and conditions of the Credit
Facility Letter.
This Note is the "Note" referred to in the "Credit Facility Letter" dated
_________, 20_____, and is one of the Single Pay Term Notes referred to in the
Amended and Restated Senior Lending Agreement dated March 1, 1996,
among Maker, the Bank, and certain other financial institutions.
PIONEER FINANCIAL SERVICES, INC.
a Missouri Corporation (Maker)
Expiry Date:_____________________
By________________________________________
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Note No._________________________ Tax Identification No. ▇▇-▇▇▇▇▇▇▇
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EXHIBIT D
PIONEER FINANCIAL SERVICES SUBSIDIARY LISTING
(Operating Subsidiaries)
Pioneer Military Lending of Colorado, Inc.
Pioneer Military Lending of Kansas, Inc.
Pioneer Military Lending of Louisiana, Inc.
Pioneer Military Lending, Inc., a Nebraska Corporation
Pioneer Military Lending of Missouri, Inc.
Pioneer Military Lending of Oklahoma, Inc.
Pioneer Military Lending of Georgia, Inc.
Pioneer Military Lending of Tennessee, Inc.
Military Acceptance Corporation of Nevada, Inc.
Pioneer Military Lending of Nevada, Inc.
Pioneer Lending of Washington, Inc.
EXHIBIT E
SUBSIDIARY REVOLVING GRID NOTE
$____________________ and Interest __________, 19___
PAYMENTS, DISBURSEMENTS AND INTEREST
FOR VALUE RECEIVED, the undersigned "Maker" promises to pay to the order of
Pioneer Financial Services, Inc., a Missouri corporation, (hereinafter called
"Lender"), at its main office, on demand, but if no demand is made then on
_______________________, 19___ the principal sum of or such other lesser amount
as shall be noted on the Schedule of Disbursements and Payments of Principal
included herein or attached hereto pursuant to the authority set forth herein,
together with interest on the unpaid principal balance hereof from time to time
outstanding from date(s) of disbursement(s) until paid, at the rate of nine
percent per annum with all interest calculated and payable monthly in arrears,
based on the month-end balance. Unless Lender, in its sole discretion, may from
time to time otherwise direct, all payments shall be applied first to payment of
accrued interest, and then to reduction of the principal sum due hereunder. This
note shall bear interest after maturity, whether by reason of acceleration or
otherwise, at a rate of interest equal to two percent (2%) in excess of the rate
stated above until paid in full, and such interest shall be compounded annually
if not paid annually. Any part of the outstanding principal balance hereof may
be paid prior to maturity and if less than the full amount due hereunder is
paid, the undersigned may from time to time until maturity receive, but the
Lender has no commitment to make, further disbursements hereunder, provided,
however, the aggregate amount of all principal amounts outstanding hereunder
shall at no time exceed the face amount of this note; and provided further, that
each and every disbursement made under this Subsidiary Revolving Grid Note shall
be at the Lender's sole discretion. In the event the undersigned pays any part
of the principal balance hereof prior to maturity or, in accordance with the
terms hereof, receives any additional disbursements of principal hereunder, the
principal amount due hereunder shall presumptively be the last amount stated to
be the Unpaid Principal Balance of Note on the Schedule of Disbursements and
Payments of Principal, and the undersigned hereby authorize(s) the Lender to
make notations on the Schedule of Disbursements and Payments of Principal (or
Lender's computer-generated grid) from time to time to evidence payments and
disbursements hereunder.
COLLATERAL
The term "Collateral" as used herein includes (but without limitation) all
of the property listed below now owned and hereafter acquired, all proceeds and
products thereof, and all accessions thereto.
Description of Collateral: All cash, deposit accounts, notes receivable,
accounts receivable, Assignment of Note Payments, reserve for loss and dealer
reserve for loss.
GRANT OF SECURITY INTEREST
The Maker hereby grants to Lender a security interest in the Collateral and
pledges and assigns the Collateral to Lender for the payment of all amounts due
under this note, and all renewals and extensions thereof, and for the payment of
all other present and future obligations to the holder, direct or contingent,
secured or unsecured, whether or not due, of Maker (all of which amounts and
obligations are hereinafter referred to as "Secured Obligations"), and Lender
may accordingly retain the Collateral or any part thereof as security after the
payment of all amounts due under this note. The Maker agrees to give to Lender
upon Lender's request, from time to time, such other and further security as
Lender, in its sole discretion, may deem necessary or appropriate, such
additional security to become "Collateral" under the provisions hereof.
RIGHTS RESPECTING COLLATERAL
After maturity, the holder may (1) transfer all or any part of the
Collateral into the name of the holder hereof or its nominee, with or without
disclosing that such Collateral is subject to the lien and security interest
hereunder; (2) notify the parties obligated on any of the Collateral to make
payment to the holder hereof of any amounts due or to become due thereunder; (3)
enforce collection of any of the Collateral by suit or otherwise and surrender,
release or exchange all or any part thereof, or compromise, extend or renew for
any period (whether or not longer than the original period) any indebtedness
secured thereby; (4) take control of any proceeds of the Collateral; (5) endorse
any Collateral in the name of Maker whenever, in the opinion of the holder, such
endorsement may facilitate the handling of, or realization upon, the Collateral,
and an irrevocable power of attorney therefor is hereby granted to the holder
hereof; however, any such action must comply fully with the Assignment of Note
Payments and Senior Lending Agreement executed by Lender if holder is other than
Lender.
The Maker hereby agrees to take any and all steps necessary to preserve any
rights in the collateral against prior parties and the holder hereof shall not
be bound to take any such steps, Notwithstanding any other provision heroin, the
Maker shall not give, transfer, sell, encumber or otherwise dispose of any of
the Collateral, or any interest therein, without Lenders advance written
consent.
ACCELERATION AND EVENTS OF DEFAULT
Without limitation on the demand maturity of this note, the holder may,
without demand or notice of any kind, declare this note and any other of the
Secured Obligations immediately due and payable in full at any time that the
holder deems itself insecure for any reason whatsoever in respect of any Secured
Obligation. Upon the occurrence of any of the following events of default: (1)
failure of Maker to pay or perform any other obligation of the Maker, (2)
dissolution of, or termination of existence of the Maker, (3) the failure of the
Maker to pay debts as they mature; (4) appointment of a receiver of or for any
part of the property of the Maker, an assignment for the benefit of creditors by
the Maker, or the commencement of any proceedings under bankruptcy or insolvency
laws by or against the Maker then this note and all other obligations of each of
the Maker to the holder hereof shall immediately become due and payable in full
without notice or demand; provided, however, that all such actions must be in
accordance with Senior Lending Agreement dated June 9, 1993* among Lender and
certain Banks therein listed if holder is other than Lender.
MISSOURI LAW
The interpretation of this instrument and the rights and remedies of the
parties hereto shall be governed by the laws of the State of Missouri.
COLLECTION EXPENSES
To the extent permitted by applicable law, the undersigned agrees to pay
all expenses of the holder in collecting this note and enforcing rights
respecting and realizing upon any of the Collateral, including reasonable
attorneys' fees.
NO WAIVERS
Any failure by the holder hereof to exercise any right hereunder shall not
be construed as a waiver of the right to exercise the same or any other right at
any other time and from time to time thereafter.
HEADINGS
All headings or titles appearing in this note are used as a matter of
convenience only and shall not affect the interpretation of the provisions
hereof.
ASSIGNMENT
Lender may assign this note together with all collateral and all rights
hereunder without notice to or consent of the undersigned.
________________________________________
________________________________________
________________________________________
* or March 1, 1996 as the case may be
By:_____________________________________
Title:__________________________________
EXHIBIT F
CREDIT FACILITY LETTER
The undersigned bank, as of the date hereof, expects to offer a maximum
aggregate credit facility of $______________________ ("Credit Facility") during
the next twelve months to Pioneer Financial Services, Inc. a Missouri
corporation, which shall be subject to all terms and conditions of that certain
Amended and Restate Senior Lending Agreement dated March 1, 1996 (the
"Agreement"). The terms hereof are hereby incorporated by reference into the
Agreement, reference to which is made for a full statement of all terms thereof.
The specific terms of the Credit Facility are as follows:
Lender:
_____________________________________
_____________________________________
_____________________________________
_________________________(the "Bank")
Borrower: Pioneer Financial Services, Inc. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Borrower")
Drawings: This Credit Facility is available through March 31, 2003, unless
terminated earlier pursuant to the terms of the Agreement. All proceeds
will be transmitted to a specified bank and account number for the Borrower
and initially that will be UMB Bank, n.a. in Account No. 9801049275.
Facility: Revolving Grid Note: $________________________
Revolving Grid Note Pricing: ________________________
Revolving Grid Note Maturity: ________________________
Amortizing Note(s) Funded: $________________________
Amortizing Note(s) Unfunded: $________________________
Amortizing Note(s) Pricing: _________________________
Single Pay Term Note Amount: _________________________
Single Pay Term Note Expiry Date: _________________________
We appreciate this opportunity to provide this statement of present expectations
in support of your financial requirements. Your acceptance of any credit, which
may be extended by the undersigned constitutes a certification that all
warranties and representations in Section 11 of the Agreement are true as of the
date of the extension of any such credit and that Pioneer, as of such date, is
not in default under the terms of such Agreement. By delivery of this Credit
Facility Letter to you, the undersigned does not commit or otherwise obligate
itself to extend to you any credit described in the Credit Facility.
__________________________________________
Bank Name
Dated:_____________________
By:_______________________________________
Title:____________________________________
EXHIBIT G
PIONEER FINANCIAL SERVICES, INC.
A Missouri Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Compliance Certificate for Senior Lending Agreement Dated June 9, 1993
Calculation Date: September 30, 1995
REQUIREMENTS AND LIMITATIONS
ACTUAL PERMITTED
------ ---------
(1) Senior Indebtedness/Tangible Net Worth......................................... $ 1.28 to 1 $ 4.75 to 1
(2) Senior Indebtedness/Net Receivable Ratio....................................... 57.81% 80%
(3) Total Indebtedness/Total Required Capital...................................... 4.84 to 1 8 to 1
(4) Loans or advances to stockholders, officers or employees....................... $ NONE $ 50,000
(5) Indebtedness of Any Branch Over $50,000........................................ $ NONE
(6) Delinquency Adjusted Leverage Ratio............................................ 4.97 to 1 8.5 to 1
CAPITAL RESERVE CALCULATIONS
REQUIRED
(1) Consolidated capital stock, preferred stock and earned surplus of the --------
company........................................................................ $ 7,422,044
(2) Unpaid balance on "270-day" delinquent accounts................................ $ 0
(3) Total Required Capital......................................................... $ 7,422,044 $ 5,484,286
(4) Junior Subordinated Indebtedness............................................... $ 11,648,373
(5) Senior Subordinated Indebtedness............................................... $ NONE
(6) Loan loss reserve.............................................................. $ 1,363,868 $ 1,358,868
(7) Dealer loss reserves........................................................... $ 265,050
SUBTOTAL............................................................ $ 20,699,335
Less: "90-day" recency delinquent accounts.................................... $ 1,822,394
TANGIBLE NET WORTH.................................................................. $ 18,876,941
(8) Loan Loss Reserve/Net Receivables Ratio........................................ 3.25% 2.00%
INDEBTEDNESS CALCULATION
(1) Short Term Notes due Bank...................................................... $ 4,185,000
(2) Short Term Notes due Affiliates................................................ $ 289,756
(3) Short Term Notes due Others.................................................... $ NONE
(4) Senior Term Notes.............................................................. $ 19, 778,674
TOTAL SENIOR INDEBTEDNESS........................................................... $ 24,253,430
TOTAL INDEBTEDNESS.................................................................. $ 35,901,803
I, the undersigned Chief Financial Officer of the company, hereby state that the
above information is true and correct. I am not aware of any Event of Default on
the above-referenced note that exists on the date this Certificate of Compliance
is signed.
___________________________________ ________________________________
Chief Financial Officer
EXHIBIT H
QUARTERLY CERTIFICATE
FOR THE CALENDAR YEAR ENDED:______________________
1. EXECUTED REVOLVING GRID NOTES -
Maximum Amount Principal Amount
Bank Authorized Outstanding Note Nos.
-------------------------------------------------------------------------------------------------------
2. EXECUTED AMORTIZING NOTES -
Original Principal Outstanding Note Maturity
Bank Note No/Date Amount Principal Amount Date
-------------------------------------------------------------------------------------------------------
3. AMORTIZING NOTES - UNFUNDED EXPECTED AVAILABILITY
Bank Unfunded Amounts Schedule
--------------------------------------------------------------------------------------------------------
4. EXECUTED SINGLE PAY TERM NOTES - UNFUNDED EXPECTED AVAILABILITY
Principal Maturity Amount of Unfunded
Bank Note No/Date Amount Date Expected Availability
-------------------------------------------------------------------------------------------------------------
This certificate is executed this _____ day of ______________________, pursuant to paragraph VIII(10) of that
certain Amended and Restated Senior Lending Agreement dated March 1, 1996.
PIONEER FINANCIAL SERVICES, INC.
a Missouri corporation
BY:
----------------------------------------------
EXHIBIT I
FORM OF AMENDMENT TO
SENIOR LENDING AGREEMENT TO
ADD BANKS OR OTHER FINANCIAL INSTITUTIONS
Amendment No. to Senior Lending Agreement
This Amendment to that certain Amended and Restated Senior Lending
Agreement originally dated March 1, 1996, a copy of which is attached hereto
(hereinafter referred to as the "Senior Lending Agreement") is made
_____________________ by and between all banks or other financial institutions
which are as of the date hereof parties to the Senior Lending Agreement; Pioneer
Financial Services, Inc. (hereinafter referred to as "Pioneer")
________________________ and _____________________ an _______________
corporation with offices located at ___________________________ (hereinafter
referred to as "New Bank").
WHEREAS, Pioneer has requested New Bank to extend credit to it and New
Bank is willing to extend such credit; and
WHEREAS, Pioneer is prohibited from receiving credit from New Bank
unless New Bank becomes a party to the Senior Lending Agreement; and
WHEREAS, New Bank desires to become a party to the Senior Lending
Agreement.
NOW, THEREFORE, in consideration of the mutual agreement of the parties
hereto and for other good and valuable consideration, receipt of which is hereby
acknowledged, it is agreed by and between Pioneer, New Bank and all of the banks
and financial institutions which are presently parties to the Senior Lending
Agreement as follows:
1. The Senior Lending Agreement is hereby amended pursuant to
Section XI thereof to add New Bank as a party thereto on the
eleventh (11th) business day following delivery by Pioneer of
a copy hereof executed by both Pioneer and New Bank to each of
the banks and financial institutions which are presently
parties to the Senior Lending Agreement if none of said banks
or financial institutions objects to New Bank becoming a party
to the Senior Lending Agreement,
2. Upon the effective date hereof which shall be determined by
paragraph 2 of Section XI of the Senior Lending Agreement, New
Bank agrees to be bound by all terms and conditions of the
Senior Lending Agreement and further agrees that all credit
which is extended by New Bank to Pioneer shall be subject to
all terms and agreements of the Senior Lending Agreement.
3. Section I of the Senior Lending Agreement is hereby amended to
add a new paragraph numbered ____ which shall state the following:
"___________________________" shall mean _____________________ ____________________________________________________________.
____________________________________________.
4. Paragraph ____ of Section I of the Senior Lending Agreement is
hereby amended to add New Bank within the definition of
"Banks".
5. Paragraph 1 of Section XIV of the Senior Lending Agreement is
hereby amended to add the following:
6. All terms of the Senior Lending Agreement, unless expressly
amended hereby, shall remain in full force and effect as if
this Amendment had not been adopted.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
the Senior Lending Agreement as of the day and year first written above.
PIONEER FINANCIAL SERVICES, INC.
a Missouri Corporation
By
-----------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
-------------------------------------------
By
-----------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
EXHIBIT J
ASSIGNMENT OF NOTE PAYMENTS
This Assignment of Note Payments, made as of this 9th day of June, 1993
("Assignor") to Pioneer Financial Services, Inc. ("Assignee").
In consideration of the outstanding indebtedness of Assignor to Assignee
and future loans which may be made by Assignee to Assignor, this Assignment is
made to Assignee, and its successors and assigns, as security for the payment of
all loans from Assignee to Assignor whether now or hereafter existing and for
the performance and observance of all other obligations of the Assignor to the
Assignee now existing or hereafter created. Assignor does hereby sell, assign,
transfer and set over to Assignee, its successors and assigns, and grant a
security interest to Assignee, its successors and assigns in all payments which
are or may be due to Assignor froth Assignor's customers, whether or not any of
such obligations are evidenced by a promissory note, together with all of
Assignor's rights to collect such payments at any time and from time to time
hereafter. The acceptance of this Assignment and the collection of the payments
and obligations of Assignor's customers shall not constitute a waiver of any
rights of the Assignee to the provisions of any note given by Assignor to
Assignee" or any other document given by Assignor to Assignee which evidences
any obligation of Assignor to Assignee. Before or after maturity, whether by
acceleration or otherwise, of any note or other obligations of the Assignor to
the Assignee, the Assignee, its successors or its assigns, may notify the
customers of the Assignor which are obligated to make payments to the Assignor
to make all such payments directly to the Assignee or to its successors or
assigns, as the case may be. The Assignee, its successors and assigns, may
enforce collection of any such payments by suit or otherwise and surrender,
release or exchange all or any part of, or compromise, extend or renew for any
period (whether or not longer than the original period) any indebtedness of such
customers and an irrevocable power of attorney therefor is hereby granted to
each of the Assignee and its successors and assigns.
Assignee, its successors and assigns, shall not in any way be responsible
for the failure of the Assignor to perform any of the Assignor's obligations to
its customers and Assignor hereby agrees to hold Assignee and its successors and
assigns harmless from any such obligations, none of which are accepted by
Assignee, its successors and assigns.
Assignor will, upon the request of Assignee or its successors or assigns,
execute any and all other instruments and documents necessary to further carry
these presents into effect or to accomplish any other purpose necessary or
appropriate in connection with this Assignment.
The payment obligations of Assignor's customers to it and any and all notes
or other documents evidencing the same shall not at anytime be sold, assigned,
transferred or set over by Assignor nor shall Assignor at any time allow the
same to become subject to any lien or encumbrance except a lien or encumbrance
in favor of Assignee or its successors or assigns.
Upon request, Assignor agrees to deliver into the possession of Assignee
all notes and other documents evidencing all obligations of its customers to
Assignor. The enforcement and implementation, both presently and prospectively,
of this Assignment by Assignee, its successors and assigns, shall not, and
Assignor hereby further covenants and agrees that the exercise of the rights of
Assignee, its successors and assigns, under this Assignment shall in no manner,
be dependent upon, affect, impair or restrict the rights of the Assignee, its
successors and assigns, under any other document evidencing any obligations of
Assignor to Assignee. This Assignment, together with all of the covenants and
warranties herein contained, shall inure to the
benefit of the Assignee, its successors and assigns, and Assignee may
unconditionally assign all of its rights under this Assignment to any person or
entity at any time without any prior notice to Assignor. Upon any assignment of
the rights of Assignee hereunder to any person or entity, any such person or
entity receiving the assignment of all of Assignee's rights hereunder shall be
entitled to unconditionally exercise all rights of Assignee hereunder and
receive all benefits which Assignee was previously entitled to receive
hereunder.
This Assignment may be executed in any number of counterparts, each of
which, when so executed and delivered, shall be deemed to be an original and all
of which counterparts, when taken together, shall constitute but one and the
same agreement.
This Assignment shall be deemed to be made under and shall be interpreted
under the laws of the state of Missouri.
IN WITNESS WHEREOF, Assignor has caused this Assignment to be duly executed
as of the day and year first written above.
ASSIGNOR
By_____________________________________
Name:_____________________________
Title:____________________________
The undersigned, Pioneer Financial Services, Inc. accepts the foregoing
Assignment on the terms and conditions stated therein as of this 9th day of
June, 1993.
ASSIGNEE PIONEER FINANCIAL SERVICES, INC.
a Missouri corporation
By_____________________________________
Name:_____________________________
Title:____________________________
Pioneer Financial Services, Inc. hereby assigns all of its rights hereunder
as of this 9th day of June, 1993 to United Missouri Bank, N.A., as Agent of all
fiduciary institutions that certain Senior Lending Agreement dated June 9, 1993
to which it and all of such financial institutions are parties.
PIONEER FINANCIAL SERVICES, INC.
a Missouri corporation
By_____________________________________
Name:_____________________________
Title:____________________________
EXHIBIT K
OTHER SENIOR DEBT
NON-CONFORMING TO AMENDED AND RESTATED SENIOR LENDING AGREEMENT DATED AS OF
MARCH 1, 1996.
(Complete listing of financial institutions not adopting the Senior Lending
Agreement.)
There is no other Senior Debt which is non-conforming to the Amended and
Restated Senior Lending Agreement.
EXHIBIT L
February 6, 1996
Bank of Boston Mercantile Bank of Kansas City
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - Box 2016 1101 ▇▇▇▇▇▇
▇▇▇▇. ▇▇-▇▇-▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇. 02106-2016 ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Director Financial Institution
Boatmen's First National Bank of Kansas City NBD Bank
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Vice President
Vice President
First National Bank of Kansas Southwest Bank of St. Louis
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. Shy Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
LaSalle National Bank UMB Bank, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇. Page
Liberty Bank and Trust Company of Oklahoma
City, National
Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
Re: Pioneer Financial Services, Inc.
Ladies and Gentlemen:
You have requested our ,pinion as special counsel for Pioneer Financial
Services, Inc., a Missouri corporation (the "Company"), in connection with that
certain Amended and Restated Senior Lending Agreement by and among the Banks and
the Company. References herein to the
February 6, 1996
Page 2
"Agreement" are to such Amended and Restated Senior Lending Agreement, excluding
any and all exhibits thereto. In connection therewith, we have examined:
1. The Agreement and the exhibits thereto;
2. one or more original notes (or photocopies of original notes)
executed by the Company or purporting to be executed by the Company and payable
to one of the Banks, each of which is substantially in the form of Exhibit A
(Revolving Grid Note), Exhibit B (Amortizing Note), or Exhibit C (Single Pay
Term Note) (collectively, the "Notes");
3. The articles of incorporation of the Company and all amendments
thereto, and the by-laws of the Company and all amendments thereto; and
4. Such other documents as we have deemed necessary to render the
opinions stated herein.
For convenience, the Agreement and the Notes are hereinafter
collectively called the "Loan Documents".
Capitalized terms not defined herein have the meanings given them in
the Agreement.
We have assumed, for purposes of this opinion: (a) that the Loan
Documents have been duly authorized, executed and delivered on behalf of the
Banks; (b) that each of the Banks has been duly organized and is validly
existing under the laws of the jurisdiction of its organization, that each of
the Banks has the power and authority to execute, deliver and comply with the
provisions of the Loan Documents, that the persons signing the Loan Documents on
behalf of each of the Banks have been duly authorized to do so by all necessary
corporate action, and that the Loan Documents create legal, valid and binding
obligations of each of the Banks; (c) that the proceeds of the Loan will be
advanced to the Company in accordance with the Loan Documents; (d) the legal
capacity of all natural persons, the genuineness of all signatures to all
instruments referred to in this opinion, other than signatures of the company on
the Agreement, and the authenticity of all documents submitted to us as
originals and the conformity to original documents of all documents submitted to
us as copies; (e) that the proceeds of the Loan will be used for business
purposes only, and not for consumer, family or household purposes; (f) that the
proceeds of the Loan will be used for a business purpose of the Company and not
for the individual benefit of any person connected with the Company; (g) that
all subsidiary Revolving Grid Notes have been duly endorsed by the Company in
blank and delivered to the Agent Bank; (h) that each of the Assignments of Note
Payments from the Subsidiaries listed in paragraph numbered 5 below to the
Company has been duly assigned and delivered by the Company to the Agent Bank;
and (i) that financing statements describing the Assignments of Note Payments
from each of the Subsidiaries naming the Agent Bank as secured party and the
Company as debtor have been or will be duly filed in the offices of the offices
of the Secretary of State of Missouri and the Director of Records of ▇▇▇▇▇▇▇
County, Missouri, at Kansas City.
We understand that possession of the notes, the payments on which are
the subject of the various Assignments of Note Payments from the Subsidiaries to
the company, will not be
February 6, 1996
Page 3
delivered to either the Company or the Agent Bank at the time of execution of
the Agreement, or thereafter unless subsequent to the declaration of an Event of
Default under the Agreement the Company delivers such notes to the Agent bank
pursuant to the requirements of the Agreement.
We are of the opinion that:
1. The Company is a corporation, duly organized, validly existing and
in good standing under the laws of the State of Missouri, and has the corporate
power and authority to execute and deliver the Loan Documents and other
documents to be executed pursuant to the Agreement or in connection with the
Agreement;
2. To the best of our knowledge and belief, the company is qualified to
do business as a foreign corporation and is in good standing in every
jurisdiction where the ownership of its properties or the nature of its business
requires qualification;
3. The execution and delivery of the Loan Documents and of all other
documents to be executed pursuant to or in connection with the Loan Agreement
have been duly authorized by all necessary corporate action, and are hot in
conflict with the charter or bylaws of the Company or, to the best of our
knowledge and belief, any material agreement binding upon the company.
4. The Loan Documents constitute, or will constitute when executed and
delivered, legal, valid and binding obligations of the Company.
5. Upon the making by each of the Banks of the loans contemplated by
the Agreement, the Agent Bank will have a valid and perfected security interest
in the Subsidiary Grid Notes and, upon the filing of the financing statements as
aforesaid, in the following Assignments of Note Payments:
(a) Assignment of Note Payments dated June 9, 1993, from
Pioneer Military Lending of Colorado, Inc. to the Company
(b) Assignment of Note Payments dated June 9, 1993, from
Pioneer Military Lending, Inc., of Kansas to the Company
(c) Assignment of Note Payments dated June 9, 1993, from
Pioneer Military Lending of Louisiana, Inc. to the Company
(d) Assignment of Note Payments dated June 9, 1993, from
Pioneer Military Lending, Inc., a Nebraska Corporation, to the
Company
(e) Assignment of Note Payments dated June 9, 1993, from
Pioneer Military Lending of Missouri, Inc. to the Company
(f) Assignment of Note Payments dated June 9, 1993, from
Pioneer Military Lending of Oklahoma, Inc. to the Company
February 6, 1996
Page 4
(g) Assignment of Note Payments dated June 9, 1993, from
Pioneer Military Lending of Georgia, Inc. to the Company
(h) Assignment of Note Payments dated June 9, 1993, from
pioneer Military Lending of Tennessee, Inc. to the Company
(i) Assignment of Note Payments dated June 1, 1994, from
Pioneer Military Lending of Tennessee, Inc. to the Company
(j) Dated June 1, 1994, from Pioneer Military Lending of
Washington, Inc., to the Company
(k) Dated September 14, 1994, from Pioneer Military Lending of
Nevada, Inc., to the Company
(1) Dated September 14, 1994, from Military Acceptance
Corporation of Nevada, to the Company
As of the date hereof, we have no knowledge of litigation or other
proceedings pending or threatened against the Company of the kind referred to in
paragraph 4 of Section 11 of the Agreement.
The foregoing opinion is subject to the qualifications that:
(i) we have not made any investigation of the title to any
assets of the company (and to the extent required for the opinions
herein expressed, we have assumed that the Company has good and
marketable title to the assets intended to be subject to the lien and
security interest of the Banks) or of the filing or priority of the
Security Documents, and we render no opinion with respect thereto;
(ii) our opinions are based upon the laws of the State of
Missouri, and we express no opinion as to the law, or as to any matter
which may be governed by the law, of any jurisdiction other than, the
state of Missouri;
(iii) unless, and except as, expressly stated in the
above-numbered paragraphs, we express no opinion regarding the
treatment of the transactions contemplated by any of the instruments
referred to in this opinion under the securities laws or regulations of
the United States, the State of Missouri or any other state;
(iv) we have assumed that the transactions contemplated by the
instruments referred to in this opinion will be effected in the future
in accordance with the terms thereof;
(v) the legality, validity and binding effect of the
instruments referred to in this opinion may be limited by applicable
laws relating to bankruptcy, insolvency, reorganizations, equitable
subordination, receivership, arrangement, fraudulent transfers,
moratorium or redemption, by other laws relating to or affecting
generally the
February 6, 1996
Page 5
enforcement of creditors' rights or the collection of debtors'
obligations, or by the valid exercise of the sovereign powers of the
United States or any other governmental entity;
(vi) the legality, validity and binding effect of any of the
instruments referred to in this opinion, including but not limited to
the enforceability of any and all rights of acceleration and rights of
payment on demand contained therein, are subject to and may be affected
by general principles of equity (regardless of whether enforcement is
sought in proceedings in equity or at law), including the inherent
authority of a court of equity to deny enforcement of any provision
thereof on equitable grounds;
(vii) without limiting the generality of paragraph (vi),
above, we express no opinion with respect to the availability of the
remedy of specific performance or other remedies requiring the exercise
of judicial discretion;
(viii) the instruments referred to in this opinion may be
subject to an implied covenant of good faith and fair dealing, and the
Banks' exercise of their rights thereunder may be limited by standards
of commercial reasonableness;
(ix) certain provisions of the Loan Documents referred to in
this opinion may be invalid, in whole or in part, but the inclusion of
such provisions does not affect the overall validity of the Loan
Documents;
(x) without limiting the generality of paragraph (ix), above,
we express no opinion as to the validity of any provisions in the
instruments referred to in this opinion which (a) provide for
liquidated damages, an increased rate of interest or any other charge
in the event of a default; (b) waive the right to notice of
acceleration of the debt or of the sale of collateral; (c) authorize
forcible entry on any property encumbered by the instruments, or other
self-help remedies for default; (d) provide for the payment of a yield
maintenance premium or other penalty upon a prepayment of a loan,
whether by acceleration, realizations upon collateral, voluntary
prepayment or otherwise; (e) provide for repayment of any interest
charge in excess of usury limitations; (f) purport to appoint one or
more attorneys-in-fact for the Company; (g) bind the Company to submit
to the jurisdiction of any court; (h) waive the Company's right to
trial by jury; or (i) disclaim any liability of the Banks to third
parties;
(xi) the choice of Missouri law as the law governing the
instruments referred to in this opinion may be limited by federal law
to the extent that it preempts Missouri law;
(xii) the opinions stated herein are as of the date hereof,
and we assume no obligation to update or supplement this opinion to
reflect any facts or circumstances which may hereafter come to our
attention or any changes in laws which may hereafter occur;
February 6, 1996
Page 6
(xiii) except as specifically set forth herein, we express no
opinion as to the accuracy or completeness of any warranty or
representation made in the instruments referred to in this opinion;
(xiv) this opinion relates solely to the matters explicitly
addressed herein, and no opinion is implied or may be inferred with
respect to any other matter; and
(xv) references herein to our "knowledge" and the "best of our
knowledge", and other references herein of similar import, refer to the
present, conscious and actual knowledge of lawyers in this firm
currently engaged in providing services to the Company in connection
with the instruments referred to in this opinion and the transactions
contemplated thereby, and, except as otherwise stated in this opinion,
shall not imply that we have conducted a general review of our files or
made any inquiry or factual investigation (beyond the examination of
documents specifically referred to herein) relating to the company or
that any other lawyers in this firm have been consulted with respect to
their knowledge regarding any matter referred to herein.
This opinion is directed solely to the Banks and their counsel in
connection with the transactions contemplated by the instruments referred to in
this opinion, and may not be used, circulated, quoted, relied upon or referred
to in connection with any transaction other than those contemplated by the
Agreement or by any persons other than the Banks and their counsel without our
prior written consent, except that any of the Banks may provide copies of this
opinion to its auditors and attorneys and to regulatory authorities in
connection with regulatory examinations.
Yours very truly,
▇▇▇▇▇▇▇ & ▇▇▇▇ ▇.▇.
By:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
EXHIBIT M
--------------------------------------------------------------------------------
Incorporated under the laws of the State of Missouri
PIONEER FINANCIAL SERVICES
Inc.
Junior Subordinated Debenture
Amount $__________ NO. _______
For value received the Pioneer Financial Services, Inc. (hereinafter called
Company) promises to pay at its Home Office in Kansas City, Missouri to the
order of _______________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
on the maturity date, together with the interest at the rate and when due, all as follows:
--------------------------------------------------------------------------------------------
Issue Date Amount Term Maturity Date Interest Rate Interest Due Interest Payment
---------- ------ ---- ------------- ------------- ------------ ----------------
This Debenture is one of an authorized issue of Junior Subordinated
Debentures to be issued by the Company. The name of the person to whom this
Debenture shall be originally issued and the name of each transferee hereof
shall be registered on the Books of the Company. No transfer hereof shall be
valid unless made on the Company books as directed by the registered holder in
person or by his duly authorized attorney. The registered holder hereof shall be
deemed and trusted as the owner hereof for all intents and purposes and the
Company shall not, in any way, be affected by any notice to the contrary. The
Company shall have the privilege of prepaying this instrument, without penalty
or premium, upon 30 days prior written notice mailed or delivered to the
registered holder hereof according to the records of the Company at holder's
address on said records and no interest shall accrue after the prepayment date.
If less than all of the outstanding Debentures are to be redeemed, the
Debentures to be redeemed shall be determined by the Board of Directors of the
Company.
This Debenture is issued subject to the following subordination
provisions, and each person holding this Debenture whether upon original issue
or transfer or renewal or assignment thereof, accepts and agrees to be bound by
said provisions as follows, to wit:
The indebtedness evidenced by this Debenture, and any renewals or
extensions thereof, shall be subordinate and junior in right of payment, in all
respects, to all Superior Indebtedness (which shall mean all indebtedness of the
Company for money borrowed which is not expressed to be subordinate or junior to
any other indebtedness of the Company) and Subordinated Indebtedness (which
shall mean all indebtedness of the Company for borrowed money which is expressed
to be subordinate and junior to all Superior Indebtedness of the Company but not
to any other indebtedness of the Company) or Series A subordinated Indebtedness
(which shall mean all indebtedness of the Company for borrowed money which is
expressed to be subordinate and junior to all Superior Indebtedness and
Subordinated Indebtedness of the Company but not to any other indebtedness of
the Company) of the Company, whether outstanding at the date hereof or hereafter
incurred. Without limiting the effect of the foregoing, "subordinate" and
"junior" as used herein shall include within their meanings the following: (i)
that in the event of any insolvency or bankruptcy proceedings, and in any
receivership, liquidation, reorganization or other similar proceedings in
connection therewith relative to the Company or its creditors or its property,
and in the event of any proceedings for voluntary liquidation, dissolution, or
other winding up of the Company, whether or not involving insolvency or
bankruptcy proceedings, than all principal and interest on all Superior
Indebtedness and Subordinated Indebtedness and Series A Subordinated
Indebtedness (hereinafter called Prior Debt) shall first be paid in full, or
such payment be provided for, before any payment on account of principal or
interest is made upon the indebtedness evidenced by this Debenture, and in any
such proceedings any payment or distribution of any kind or character, whether
in cash or property or securities, which may be payable or deliverable in
respect of this Debenture shall be paid or
--------------------------------------------------------------------------------
delivered directly to the holders of such Prior Debt for application in payment
thereof, unless and until such Prior Debt shall have been paid and satisfied in
full or such payment and satisfaction shall have been provided for; provided,
however, the foregoing provisions are subject to the power of a court of
competent jurisdiction to make other equitable provision reflecting the rights
conferred herein upon the Prior Debt and the holders thereof with respect to the
junior subordinated indebtedness represented by this Debenture and the holders
thereof by a lawful plan of reorganization under the applicable bankruptcy law;
and (ii) in the event that this Debenture is for any reason declared due and
payable by any holder or holders prior to its expressed maturity date (under
circumstances when the provisions of the foregoing clause (i) shall not be
applicable) and the holder of this Debenture shall be entitled to payment only
after there shall first have been paid in full the Prior Debt outstanding at the
time this Debenture so becomes due and payable because of such event of default,
or such payment shall have been provided for. No present or future holder of
Prior Debt shall be prejudiced in his right to enforce subordination of this
Debenture by an act or failure to act on the part of the Company. The provisions
of this section are solely for the purpose of defining the relative rights of
the holders of Prior Debt on the one hand, and the holder of this Debenture on
the other hand and nothing herein shall impair, as between the Company and the
holder of any Debenture, the obligation of this Company which is unconditional
and absolute, to pay to the holder thereof the principal and interest thereon in
accordance with its terms, nor shall anything herein prevent the holder of this
Debenture from exercising all remedies otherwise permitted by applicable law or
hereunder upon default hereunder, subject to the rights, if any, under this
section of holders of Prior Debt to receive cash, property or securities
otherwise payable or deliverable to the holder of this Debenture.
Any one of the following shall constitute an event of default as to
this Debenture: If the Company ceases doing business, if any installment of
principal or interest on this Debenture is not paid within ten (10) days after
written notice from the registered holder of such non-payment or bankruptcy,
reorganization or insolvency proceedings. If an event of default as herein
defined occurs, the Company agrees to give the registered holder of this
Debenture, upon request, the names and addresses of all registered Debenture
holders.
This Debenture will automatically renew for additional terms
("Extension Term") each equal in length to the original term, unless and until
the registered holder has requested payment in writing on or prior to a maturity
date. Interest for each Extension Term shall accrue at the rate being offered by
the Company on newly issued Debentures of like denomination and maturity at the
time of commencement of each Extension Term. The Company reserves the right to
issue and sell other Debentures having equal rank and priority with this
Debenture.
IN WITNESS WHEREOF, the Company has caused this Debenture to be duly
executed in its corporate name by its President or one of its Vice Presidents,
and its corporate seal to be hereto affixed and attempted by its Secretary or
one of its Assistant Secretaries, this the _____th day of __________________,
19____.
PIONEER FINANCIAL SERVICES
Attest____________________________ By:______________________________
President
(Seal)
--------------------------------------------------------------------------------
Transferable only on the books of and at the Office of
Pioneer Financial Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The following abbreviations, when used in this inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - __________ Custodian _________
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors Act of _______________
survivorship and not as tenants in (State)
common
Additional Abbreviations may also be used though not in the above list.
-----------------------------------------------------------------------------------------------------------------------------
CERTIFICATE TRANSFERS AND REDEMPTIONS
------------------------------------------------------------
FOR VALUE RECEIVED the undersigned hereby:
| | Sells, assigns and transfers unto
-----------------------------------------------------------------------------------
(Name and Address of Assignee, including Zip Code, Must Be Printed or Typewritten)
----------------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably constituting and
appointing ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Attorney to transfer
said Certificate on the books of the Custodian, with full power of substitution in the
premises.
---------------------------------------------
| |
---------------------------------------------
Please insert Social Security or Other
Identifying Number of New Owner
| | Permanently Changes the Name(s) OLD NAME (Registration): _____________________________________________________________
or Registration NEW NAME (Registration): _____________________________________________________________
| | Redeems the within Certificate Please Send Check to:_________________________________________________________________
At Maturity Value _________________________________________________________________
| | Reinvests the maturity value of the
within Certificate (Please complete and include an Offer to Purchase and Receipt Form for your new
certificate.)
DATED:__________________
Subscribed and sworn to before me
Registered Owner this ____ day of ____________, 19_____. (SEAL)
X _______________________________________
Registered Owner Notary Public My Commission Expires _______________
X________________________________________
Registered Owner
NOTICE: The signature must correspond with the name as it appears upon the face
of the within Certificate in every particular, without alteration or enlargement
of any changes whatever.
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ASSIGNMENT FOR LOAN |
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FOR VALUE RECEIVED the undersigned hereby certifies that this debenture has been assigned to:
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(Name and Address of Assignee, including Zip Code, Must Be Printed or Typewritten)
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Subscribed and sworn to before me
Registered Owner this ____ day of ____________, 19_____. (SEAL)
X _______________________________________
Registered Owner Notary Public My Commission Expires _______________
X________________________________________
Registered Owner
Lending Institution Notary Public My Commission Expires _______________
RELEASE OF ASSIGNMENT: The undersigned hereby releases the above described assignment and reassigns this debenture t
the original named owner(s).
Subscribed and sworn to before me
this ____ day of ____________, 19_____. (SEAL)
X _______________________________________
Lending Institution Notary Public My Commission Expires _______________
X________________________________________
Lending Institution