Exhibit 4.9
AMENDED AND RESTATED SENIOR LENDING AGREEMENT
DATED AS OF October 1, 2003
This Amended and Restated Senior Lending Agreement ("Agreement") is made
as of this 1st day of October, 2003 (the "Effective Date") 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"), Arvest Bank, an Oklahoma banking corporation (hereinafter
referred to as "Arvest"), Union Bank of California, a California banking
corporation (hereinafter referred to as "Union"), Comerica Bank, a Michigan
banking corporation (hereinafter referred to as "Comerica"), First Bank, a
Missouri banking corporation (hereinafter referred to as "FBM"), First National
Bank of Kansas, a national banking association (hereinafter referred to as
"FNBK"), Bank of Oklahoma, N.A., a national banking association (hereinafter
referred to as "BOK"), LaSalle National Bank, a national banking association
(hereinafter referred to as "LaSalle"), Bank One, NA, a national banking
association (hereinafter referred to as "Bank One") and Southwest Bank of St.
Louis, a Missouri banking association (hereinafter referred to as "Southwest"),
all of UMB, Arvest, Union, FBM, Comerica, FNBK, BOK, LaSalle, Bank One and
Southwest being hereinafter referred to collectively as the "Banks".
WHEREAS, Pioneer and certain of the Banks entered into a Senior Lending
Agreement originally dated as of June 9, 1993, as amended and restated as of
March 1, 1996, and as further amended as of January 26, 1998 and March 31, 2000
(hereinafter referred to as the "Senior Lending Agreement"); and
WHEREAS, Pioneer and each of the Banks desire to further amend and restate
such Senior Lending Agreement by the execution and delivery of this Agreement;
and
WHEREAS, Pioneer is willing to confirm that all notes, documents
evidencing or confirming the grant of liens and security interests and all other
related documents executed pursuant to the Senior Lending Agreement as so
amended through March 31, 2000, except as otherwise expressly amended by this
Agreement, shall remain in full force and effect; and
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. "Agent Bank" shall mean UMB Bank, N.A., Kansas City, Missouri, unless
changed pursuant to the terms hereof.
2. "Amortizing Note" shall mean any note in the form of Exhibit B attached
hereto.
3. "Arvest" shall mean Arvest Bank, Oklahoma City, Oklahoma.
4. "Assignment of Note Payments and Security Agreement" shall be the
document in the form attached hereto as Exhibit J.
5. "Bank One" shall mean Bank One, NA, Oklahoma City, Oklahoma (formerly
Bank One Oklahoma, N.A.).
6. "Banks" shall mean UMB, Arvest, FBM, BOK, Comerica, Union, FNBK,
LaSalle, Bank One and Southwest, and "Bank" may refer to any of the foregoing.
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7. "BOK" shall mean Bank of Oklahoma, N.A., Oklahoma City, Oklahoma.
8. "Business Day" means any day on which the Agent Bank is open for
business.
9. "Change of Control" shall mean any date after which neither ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ nor ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. serve (for any reason other than his death or
disability) as Chief Executive Officer, President, Chairman of the Board, or a
similar position that constitutes the highest ranking officer position of
Pioneer or any successor thereto.
10. "Comerica" shall mean Comerica Bank, Auburn Hills, Michigan.
11. "Compliance Certificate" shall mean each certificate executed by
Pioneer in the form of Exhibit G attached hereto.
12. "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.
13. "Credit Facility Letter" shall mean each letter submitted to Pioneer by
any of the Banks in the form of Exhibit F attached hereto.
14. "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 X2(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
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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 and 7 of Section VIII or any covenant, obligation or requirement
contained in Section IX of this Agreement and failure of Pioneer after
receipt from the Banks of written notice pursuant to Section X2(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 debenture, 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 the latest of
ten (10) Business Days of receipt of notice thereof by Pioneer or the
expiration of any applicable cure or other grace period under the
applicable debenture, contract or agreement;
(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
its creditors, or Pioneer consents to, applies for or acquiesces in the
appointment of a trustee or receiver for it or for
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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 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 unless such Change of Control is waived as
an Event of Default by the Required Banks which have loans outstanding
hereunder to Pioneer at the time such Change of Control occurs.
15. "FBM" shall mean First Bank, Clayton, Missouri.
16. "FNBK" shall mean the First National Bank of Kansas, Overland Park,
Kansas.
17. "LaSalle" shall mean LaSalle National Bank, Chicago, Illinois.
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18. "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.
19. "Performance Event" shall mean the failure of Pioneer to be in
compliance with any of the covenants set forth in Paragraphs 4, 5, 6 and 7 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 (8) hereof.
20. "Pioneer" shall mean Pioneer Financial Services, Inc., a Missouri
corporation.
21. "Pioneer's Knowledge" and other words and phrases of like import shall
mean the actual state of knowledge of the Designated Persons regarding the
matters referred to, in each case without having conducted an independent
inquiry into such matter and without any obligation to have done so. As used
herein, the term "Designated Persons" shall refer to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, who are all authorized officers of
Pioneer. No Designated Person acting in good faith shall have any personal
liability arising out of any representation or warranty made in or pursuant to
this Agreement.
22. "Quarterly Certificate" shall mean the certificate in the form attached
hereto as Exhibit H.
23. "Required Banks" means those Banks which at the time of any action to
be taken are parties to this Agreement and which hold at least 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.
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24. "Revolving Grid Note" shall mean any note in the form of Exhibit A
attached hereto.
25. "Security Agreement" shall be the document in the form attached hereto
as Exhibit P.
26. "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 at
any time the greater of (i) Two Million Dollars ($2,000,000) or (ii) 2.5% of the
outstanding principal amount of Senior Debt.
27. "Single Pay Term Note" shall mean any note in the form of Exhibit C
attached hereto.
28. "Southwest" shall mean Southwest Bank of St. Louis, St. Louis,
Missouri.
29. "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 or generally in the form of Exhibit M to the Prior Agreement (as
hereinafter defined).
30. "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.
31. "Subsidiary Revolving Grid Note" shall mean all notes in the form of
Exhibit E attached hereto.
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32. "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 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
Company which are delinquent by recency of payment of ninety (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 ninety-five percent (95%)
of the amount of the payment being made shall constitute full payment of such
payment.
33. "Total Indebtedness" shall mean the sum of (i) all Senior Debt and (ii)
all Subordinated Debt of every class.
34. "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 (iv) the outstanding principal
amount of all notes payable to any Subsidiary of Pioneer except Pioneer Military
Insurance Company which are delinquent by recency of payment by two hundred
seventy (270) calendar days or more.
35. "UMB" shall mean UMB Bank, N.A., Kansas City, Missouri.
36. "Union" shall mean Union Bank of California, Los Angeles, California.
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, warrants and confirms to the Banks as follows:
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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 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 to the extent a conflict with any such law or order would have a
material adverse effect on Pioneer's ability to perform its obligations under
this Agreement, (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 Pioneer's 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.
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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. To Pioneer's knowledge there is no action, suit or
proceeding (i) in any tribunal, whether at law or in equity, or (ii) by or
before any governmental instrumentality or 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 as assigned to the
Agent Bank for the benefit of all of the Banks, 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,
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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 Subordinated Debt 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.
10. ERISA. To Pioneer's knowledge, 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. Upon the Effective Date of October 1, 2003, this Agreement shall
amend, restate and replace the Amended and Restated Senior Lending Agreement
among Pioneer and the Banks dated as of March 1, 1996, as amended, restated,
replaced and modified to date (the "Prior Agreement"), and from and after the
Effective Date all references in any other instruments,
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documents or agreements related to the Prior Agreement, the "Senior Lending
Agreement" "thereunder," "thereof" or words of like import referring to the
Prior Agreement shall mean and be a reference to this Agreement. The term of
this Agreement shall commence on October 1, 2003 and shall terminate on October
1, 2005, unless otherwise extended as provided herein. Unless any of the Banks
gives written notice of its objection to the other Banks and to Pioneer prior to
June 30 of any calendar year, the term of this Agreement shall be automatically
extended to October 1 of the year immediately succeeding the year this Agreement
would otherwise terminate. In the event of any such objection, the then-existing
term of this Agreement shall terminate on the last day thereof unless reaffirmed
in writing by all of the non-objecting Banks and all Senior Debt payable to the
objecting Bank shall, subject to Section III 6 hereof, be payable by Pioneer in
accordance with the stated maturity in the note or notes evidencing such Senior
Debt. Upon any such termination 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 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
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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 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.
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.
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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 (or in the event Bloomberg is
unavailable for any reason, an equivalent data service recommended by Pioneer
which is acceptable to the Required Banks), 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.
4. Credit Facility Letters. As of March 31 of each calendar year commencing
on March 31, 2004, 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
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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, all notes and other documents executed pursuant to the June 9, 1993
Senior Lending Agreement and the Amended and Restated Senior Lending Agreement
dated as of March 1, 1996, as amended, which have not matured or terminated
according to their respective terms on or prior to October 1, 2003 shall, except
to the extent expressly amended by this Agreement, continue in full force and
effect beyond October 1, 2003, and any extensions of the term hereof, if any,
until their respective stated maturities.
6. When a Bank states or indicates, by Credit Facility Letter, by declining
a loan request from Pioneer, or otherwise, that it will not make any future
loans to Pioneer under this Agreement (the "Withdrawing Bank"), Pioneer , with
the prior written consent of all Banks other than the Withdrawing Bank, such
consent to not be unreasonably withheld, may thereafter pay, without any penalty
or premium, all or any portion of the Senior Debt outstanding to the Withdrawing
Bank, notwithstanding any requirement to the contrary contained in this
Agreement, in any Revolving Grid Note, Amortizing Note or Single Pay Term Note,
or in any other related instrument, document or agreement.
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 October 1, 2003 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) An originally-executed Assignment of Note Payments and Security
Agreement duly signed by an authorized officer of each of its Subsidiaries,
except Pioneer Military Insurance Company, each such Assignment of Note
Payments and Security Agreement to be delivered only once by Pioneer to the
Agent;
(d) An originally executed Security Agreement duly signed by an
authorized officer of each of its Subsidiaries, except Pioneer Military
Insurance Company, each such Security Agreement to be delivered only once
to the Agent;
(e) Confirmation from the Agent Bank that (i) a financing statement in
the form of Exhibit N attached hereto has been filed with the Missouri
Secretary of State naming Pioneer as the debtor, (ii) a financing statement
in the form of Exhibit O naming each Subsidiary, except Pioneer Military
Insurance Company, as a debtor have been filed with the Secretary of State
of their respective state of incorporation, and (iii) a financing statement
in the form of Exhibit OO naming each Subsidiary, except Pioneer Military
Insurance Company, as a debtor have been filed with the Secretary of State
of their respective state of incorporation.
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(f) 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, security agreements and other documents to be
executed pursuant hereto or in connection herewith and a duly certified
resolution of the board of directors of each Subsidiary except Pioneer
Military Insurance Company authorizing the execution and delivery of all
notes, security agreements and other documents to be executed by each of
them pursuant hereto or in connection herewith, such resolution designating
the officers or employees of Pioneer or each Subsidiary, as the case may
be, authorized to execute the same. Pioneer or each Subsidiary, as the case
may be, shall be required to deliver the documents described in this
subparagraph (f) only once to each Bank; and
(g) 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 (g) only once to each
Bank.
V. NEGATIVE PLEDGE, COLLATERAL 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 and the Banks.
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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 and will cause each of its Subsidiaries, now existing and hereafter
acquired or created, except Pioneer Military Insurance Company, to grant to the
Banks a security interest in all notes payable to such Subsidiaries by their
customers by execution of a Security Agreement in the form of Exhibit P attached
hereto.
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 and Security Agreement in the form of Exhibit J attached hereto
between Pioneer and each of its Subsidiaries, except Pioneer Military Insurance
Company, dated October 1, 2003, 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 the rights under each such
Security Agreement and each such Assignment of Note Payments and Security
Agreement unless and until
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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 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 two hundred
seventy (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 accounts, discloses
19
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 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 Company. 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 Company, to an
account at the Agent Bank established ratably for the benefit of all Banks which
are parties to this Agreement.
20
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.
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 Company, 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
21
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. Required Banks Rule. The Agent Bank shall follow all written directions
from the Required 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 such instructions are for the ratable
benefit of all Banks. In the event the Required Banks do not approve 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 paragraph 2 of Section VII and except
as may otherwise be expressly provided in this Agreement, the Required Banks
must approve all instructions to the Agent and, subject to Section XI 1 hereof,
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 the Required Banks at the time of any such designation.
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.
22
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 to,
without the prior written consent of the Banks, 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, without the prior written consent
of the Required 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 Required 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 one or more of others 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 it Subsidiaries in a manner consistent with past
practices; and, provided, further, that so long as ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇. is the highest ranking officer in the surviving company of a
merger, consolidation or other combination, Pioneer shall not be prohibited from
effectuating such merger, consolidation or other combination.
2. Nonconforming Debt. Pioneer will not 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. in
23
an aggregate outstanding principal amount not to exceed at any time the greater
of (i) Two Million Dollars ($2,000,000) or (ii) 2.5% of the outstanding
principal amount of the 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 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 Two Hundred Fifty Thousand Dollars ($250,000) 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 Twelve Million Five Hundred
Thousand Dollars ($12,500,000) plus fifty percent (50%) of the cumulative
positive net income earned by Pioneer during each of its fiscal years ending
subsequent to September 30, 2002.
6. 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.
7. 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 three
percent (3%) of the Consolidated Net Receivables.
24
8. 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.
9. 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.
10. 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) 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.
11. Compliance With Laws. Pioneer will comply in all material respects with
all applicable laws, rules, regulations and orders of any governmental authority
which has jurisdiction
25
over it if noncompliance with any such law, rule, regulation or order would have
a material adverse affect on Pioneer's ability to perform its obligations under
this Agreement.
12. 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 Seven Hundred Thousand
Dollars ($700,000); 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 Required 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.
26
(c) Projected financial statements for each fiscal year not later than
thirty (30) calendar days following the first Business Day of each fiscal
year.
(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 14(a), 14(c), 14(e), and 14(g) of Section I hereof for at least one
hundred twenty (120) Business Days unless all such Banks waive such prior notice
requirement.
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
27
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.
(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 and
without recourse.
(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.
28
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.
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. AMENDMENT AND ADDITION OF OTHER BANKS
1. Amendment. Except as otherwise provided in Section XI 2 hereof no
provision hereof may be amended or modified except pursuant to an agreement in
writing entered into by Pioneer and the Required Banks; provided, however, that
no such agreement shall:
(a) change any terms of any Note outstanding pursuant hereto on the
date of such amendment;
(b) change the definition of "Required Banks";
(c) release any collateral for payment of notes issued hereunder or
change any provision of Section V hereof;
(d) change any provision of Sections VIII 2, 3, 4, 5, 6 and 7 hereof;
(e) change any provision of Section I 14 hereof; or
29
(f) change the definition of "Performance Event" or any provision of
Section VI hereof,
without the prior written consent of all Banks; provided further, that no such
amendment shall amend, modify or otherwise affect the rights or duties of the
Agent hereunder without the prior written consent of the Agent.
2. 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:
(a) 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.
(b) 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
at least two (2) Banks which are parties hereto object in a written notice
delivered to Pioneer within ten (10) Business Days of the objecting Banks'
receipt of the proposed amendment, the proposed amendment will
automatically become effective and the new bank or financial institution
will become a party
30
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 14 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 an Event of Default, after the declaring Bank has complied with
the terms of paragraph 2 of Section X hereof, the Agent Bank shall (i) 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
31
Commercial Code of Missouri, as now or hereafter in effect, or otherwise
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.
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:
First National Bank of Kansas
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
LaSalle Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Bank One, NA
OKI-1073
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
P.O. Box 25848
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
32
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Bank of Oklahoma, N.A.
▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
First Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Pioneer Financial Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Southwest Bank of St. Louis
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
UMB Bank, N.A.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. Page
Comerica Bank
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Union Bank of California
▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Arvest Bank
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
33
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 of 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.
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
34
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.
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. To
the extent any documents previously executed in connection with or pursuant to
the Amended and Restated Senior Credit Agreement dated as of March 1, 1996
between Pioneer and the Banks refers to the date of such Amended and Restated
Senior Credit Agreement as of March 31, 1996, Pioneer hereby agrees that all
such documents are hereby amended to use the date of March 1, 1996 as the date
of such Amended and Restated Senior Credit Agreement.
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,
35
however, that Pioneer may not assign any rights or obligations hereunder without
the prior written consent of the Required 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. Continuing Documents. All provisions of all documents executed and
delivered by Pioneer to or for the benefit of the Banks pursuant to the Amended
and Restated Senior Lending Agreement between Pioneer and the Banks dated as of
March 1, 1996, as amended, 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
Amended and Restated 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 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.
36
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
PIONEER FINANCIAL SERVICES, INC. ARVEST BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇.▇. ▇▇▇▇▇▇▇
-------------------------------- -------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇.▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer Title: Chairman
COMERICA BANK LASALLE NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------- -------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: First Vice President Title: Senior Vice President
FIRST NATIONAL BANK OF KANSAS BANK ONE, NA
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------- -------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President Title: First Vice President
BANK OF OKLAHOMA, N.A. SOUTHWEST BANK OF ST. LOUIS
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------- -------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President Title: Senior Vice President
FIRST BANK UNION BANK OF CALIFORNIA
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------- -------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President Title: Vice President
UMB BANK, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. Page
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Page
Title: Executive Vice President
37
EXHIBITS TO
AMENDED AND RESTATED SENIOR LENDING AGREEMENT
Dated as of October 1, 2003
A Revolving Grid Note
B Amortizing Note
C Single Pay Term Note
D Subsidiaries
E Subsidiary Revolving Grid Note
F Credit Facility Letter
G Compliance Certificate
H Quarterly Certificate
I Amendment to Agreement
J Assignment of Note Payments and Security Agreement
K Senior Debt
L Opinion of Counsel
M Subordinated Debt
N UCC from Pioneer
O UCCs from Subsidiaries
OO UCCs from Subsidiaries
P Security Agreement
38
EXHIBIT A
SECURED
REVOLVING GRID NOTE
PIONEER FINANCIAL SERVICES, INC.
$______________ and interest ________________, _______
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 twelve (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 is 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, instruments payable to and
payment intangibles of such Subsidiaries from their customers and other assets
which have been assigned to Maker by such Subsidiaries pursuant to an Assignment
of Note Payments and Security Agreement dated October 1, 2003 or in which a
security interest has been granted to UMB Bank, N.A., as agent, by such
Subsidiaries pursuant to a Security Agreement dated October 1, 2003.
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 until 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
________________, _________, and is one of the Revolving Grid Notes referred to
in the Amended and Restated Senior Lending Agreement dated as of October 1,
2003, among Maker, the Bank, and certain other financial institutions.
PIONEER FINANCIAL SERVICES, INC.
a Missouri Corporation (Maker)
By:_____________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tax Identification No. ▇▇-▇▇▇▇▇▇▇
Note No. ________
PIONEER FINANCIAL SERVICES, INC.
a Missouri corporation
===============================================================================
DATE AMOUNT OF AMOUNT OF UNPAID
INTEREST INTEREST INTEREST PRINCIPAL PRINCIPAL PRINCIPAL DISBURSEMENT
DATE PAID TO RATE PAID DISBURSEMENT PAYMENT BALANCE APPROVED BY
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EXHIBIT B
SECURED AMORTIZING NOTE
PIONEER FINANCIAL SERVICES, INC.
SENIOR NOTE
$ __________________________ and interest ___________________, __________
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 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.
"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, instruments payable to and
payment intangibles of such Subsidiaries from their customers and other assets
which have been assigned to Maker by such Subsidiaries pursuant to an Assignment
of Note Payments and Security Agreement dated October 1, 2003 or in which a
security interest has been granted to UMB Bank, N.A., as agent, by such
Subsidiaries pursuant to a Security Agreement dated October 1, 2003.
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 paragraphs 1 and
6 of Section III of the Amended and Restated Senior Lending Agreement dated as
of October 1, 2003.
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 as of October 1, 2003, among
Maker, the Bank, and certain other financial institutions.
PIONEER FINANCIAL SERVICES, INC.
a Missouri Corporation (Maker)
By:_____________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tax Identification No. ▇▇-▇▇▇▇▇▇▇
Note No. ________
EXHIBIT C
SECURED SINGLE PAY TERM NOTE
PIONEER FINANCIAL SERVICES, INC.
$ __________________________ and interest ___________________, __________
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 bases 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, instruments payable to and
payment intangibles of such Subsidiaries from their customers and other assets
which have been assigned to Maker by such Subsidiaries pursuant to an Assignment
of Note Payments and Security Agreement dated October 1, 2003 or in which a
security interest has been granted to UMB Bank, N.A., as agent, by such
Subsidiaries pursuant to a Security Agreement dated October 1, 2003.
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 hereon 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 of
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 Lender Agreement dated as of October 1, 2003. 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
___________, _______, and is one of the Single Pay Term Notes referred to in the
Amended and Restated Senior Lending Agreement dated as of October 1, 2003, among
Maker, the Bank, and certain other financial institutions.
EXPIRY DATE:__________ PIONEER FINANCIAL SERVICES, INC.
a Missouri Corporation (Maker)
By:_____________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tax Identification No. ▇▇-▇▇▇▇▇▇▇
Note No. ________
EXHIBIT D
PIONEER FINANCIAL SERVICES SUBSIDIARY LISTING
(Operating Subsidiaries)
as of October 1, 2003
Pioneer Military Lending, Inc., a Nebraska Corporation
Pioneer Military Lending of Missouri, Inc.
Pioneer Military Lending of Georgia, Inc.
Military Acceptance Corporation of Nevada, Inc.
Pioneer Military Lending of Nevada, Inc.
Pioneer Lending of Washington, Inc.
EXHIBIT E
SECURED
SUBSIDIARY REVOLVING GRID NOTE
$______________________ and Interest ____________________, _______
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
___________________, _____, 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, accounts receivable, instruments, Assignment of Note Payments and
Security Agreement, payment intangibles, 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 Security Agreement and the 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 provisions
herein, the Maker shall not give, transfer, sell, encumber or otherwise dispose
of any of the Collateral, or any interest therein, without Lender's 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 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 the Amended and Restated Senior Lending
2
Agreement dated as of October 1, 2003, 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.
Dated: ____________________ ____________________________________
By:__________________________________
Name:________________________________
Title:_______________________________
3
EXHIBIT F
CREDIT FACILITY LETTER
The undersigned bank, as of the date hereof, expects to offer a maximum
aggregate credit facility of ____________________ ($____________) during the
next twelve (12) months to Pioneer Financial Services, Inc., a Missouri
corporation, which shall be subject to all terms and conditions of that certain
Amended and Restated Senior Lending Agreement dated as of October 1, 2003 (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
________________, 20___ 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) FundedL: _____________________________
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 II 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: ____________________________
Name: ____________________________
Title: __________________________
EXHIBIT G
PIONEER FINANCIAL SERVICES, INC.
a Missouri corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Compliance Certificate for Amended and Restated Senior Lending Agreement
------------------------------------------------------------------------
Dated as of October 1, 2003
---------------------------
Calculation Date: ______________________
REQUIREMENTS AND LIMITATIONS
----------------------------
ACTUAL PERMITTED
------ ---------
(1) Senior Indebtedness/Tangible Net Worth 4.75 to 1
(2) Senior Indebtedness/Net Receivable Ratio 80%
(3) Loans or advances to stockholders, officers or $ 50,000
employees
(4) Indebtedness of Any Branch Over $250,000 $250,000
CAPITAL/RESERVE CALCULATION REQUIRED
--------------------------- --------
(1) Consolidated capital stock, preferred stock and earned
surplus of the company
(2) Unpaid balance on "270-day" delinquent accounts
(3) Total Required Capital
(4) Junior Subordinated Indebtedness
(5) Senior Subordinated Indebtedness
(6) Loan loss reserve
(7) Dealer loss reserves
SUBTOTAL
Less: "90-day" recency delinquent
accounts
Tangible Net Worth
(8) Delinquency Adjusted Capital
(9) Loan Loss Reserve/Net Receivables
Ratio
INDEBTEDNESS CALCULATION
-------------------------
(1) Short Term Notes due Bank
(2) Short Term Notes due Affiliates
(3) Short Term Notes due Others
(4) Senior Term Notes
TOTAL SENIOR INDEBTEDNESS
TOTAL INDEBTEDNESS
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.
________________________________________ Dated: _____________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇, Chief Financial Officer
EXHIBIT H
QUARTERLY CERTIFICATE
FOR THE CALENDAR QUARTER ENDED: _____________________
1. EXECUTED REVOLVING GRID NOTES:
Bank Maximum Amount Principal Amount Note Numbers
Authorized Outstanding
-----------------------------------------------------------------------------
2. EXECUTED AMORTIZING NOTES:
Bank Note No/Date Original Principal Outstanding Note Maturity
Amount Principal Amount Date
-----------------------------------------------------------------------------
3. AMORTIZING NOTES B UNFUNDED EXPECTED AVAILABILITY
Bank Unfunded Amounts Schedule
-----------------------------------------------------------------------------
4. EXECUTED SINGLE PAY TERM NOTES B UNFUNDED EXPECTED AVAILABILITY
Bank Note No/Date Principal Amount Maturity Date Amount of
Unfunded
Expected
Availability
-----------------------------------------------------------------------------
This certificate is executed this __________ day of
________________________, _________ pursuant to paragraph VIII(8) of that
certain Amended and Restated Senior Lending Agreement dated as of October 1,
2003.
PIONEER FINANCIAL SERVICES, INC.
a Missouri corporation
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
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 dated as of October 1, 2003, a copy of which is attached hereto
(hereinafter referred to as the "Senior Lending Agreement") is made as of
____________, 200____ by and between all banks or other financial institutions
which are, as of the date hereof, parties to such Senior Lending Agreement;
Pioneer Financial Services, Inc. (hereinafter referred to as "Pioneer") and
__________________, a ________________ 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 the 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 _______________________ of ________________, __________________."
4. Paragraph 6 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 above written.
PIONEER FINANCIAL SERVICES, INC.
a Missouri corporation
By: ________________________________
Name: ________________________________
Title: ________________________________
[___________________________________]
By: _______________________________
Name: _______________________________
Title: _______________________________
2
EXHIBIT J
ASSIGNMENT OF NOTE PAYMENTS
AND SECURITY AGREEMENT
This Assignment of Note Payments and Security Agreement, is made as of this
1st day of October, 2003 by __________________ ("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 of
Note Payments and Security Agreement 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 from
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, all promissory notes and other
instruments payable to Assignor and all payment intangibles of Assignor. The
acceptance of this Assignment of Note Payments and Security Agreement 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. 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 the
Assignee and each of 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 and do all other things
necessary to further carry these presents into effect, to perfect the security
interests granted herein and to accomplish any other purpose necessary or
appropriate in connection with this Assignment of Note Payments and Security
Agreement.
The payment obligations of Assignor's customers to it and any and all
notes or other documents evidencing the same shall not at any time 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 or the banks and
financial institutions which are parties to that certain Amended and Restated
Senior Lending Agreement dated as of October 1, 2003, between the Assignee and
such banks and financial institutions.
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 of Note Payments and Security Agreement 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 of Note Payments and Security Agreement 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 of Note Payments and Security Agreement, 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 of Note Payments and Security
Agreement 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 of Note Payments and Security Agreement 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 of Note Payments and Security Agreement shall be deemed to
be made under and shall be interpreted under the laws of the State of Missouri
and Assignee shall have all of the rights of a secured creditor under the
Uniform Commercial Code as in effect now or hereafter in the State of Missouri.
IN WITNESS WHEREOF, Assignor has caused this Assignment of Note Payments
and Security Agreement to be duly executed as of the day and year first above
written.
ASSIGNOR:
By: _________________________________
Name: _________________________________
Title: _________________________________
The undersigned, Pioneer Financial Services, Inc., accepts the foregoing
Assignment of Note Payments and Security Agreement on the terms and conditions
stated therein as of this 1st day of October, 2003.
PIONEER FINANCIAL SERVICES, INC.
a Missouri corporation
(ASSIGNEE)
By: _________________________________
Name: _________________________________
Title: _________________________________
Pioneer Financial Services, Inc. hereby assigns all of its rights hereunder
as of this 1st day of October, 2003, to UMB Bank, N.A., as Agent of all banks
and financial institutions which are parties to that certain Amended and
Restated Senior Lending Agreement dated as of October 1, 2003.
PIONEER FINANCIAL SERVICES, INC.
a Missouri corporation
By: _________________________________
Name: _________________________________
Title: _________________________________
2
EXHIBIT K
OTHER SENIOR DEBT
NON-CONFORMING TO AMENDED AND RESTATED SENIOR LENDING AGREEMENT DATED AS OF
OCTOBER 1, 2003.
(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
OPINION OF COUNSEL
[omitted; a copy will be provided upon request]
EXHIBIT M
FORM OF DEBENTURE
Incorporated Under The Laws Of The State Of Missouri
PIONEER FINANCIAL SERVICES, INC.
Junior Subordinated Debenture
Amount $ No.
---------------------------------- -------------------------
Registered Owner:
For value received, Pioneer Financial Services, Inc. (the "Company")
promises to pay to the Registered Owner or registered assigns the principal
amount of ____________ thousand dollars ($__________) on or prior to the
Maturity Date, and to pay interest thereon at the rate of ___% per annum from
the Issue Date hereof, or from the most recent date to which interest has been
paid, all as follows:
------------------------------------------------------------------------------
Issue Principal Maturity Interest Interest Interest
Date Amount Term Date Rate Due Payment
------------------------------------------------------------------------------
The Debentures are issuable only as registered Debentures without coupons
in denominations of one thousand dollars ($1,000.00) or any multiple thereof.
The holder of this Debenture may elect either: (i) to have interest on the
Principal Amount compound on each anniversary of the Issue Date until paid in
full on the Maturity Date; (ii) to receive the Interest Payment in cash annually
on the anniversary of the Issue Date; or (iii) if the original Principal Amount
of this Debenture exceeds ten thousand dollars ($10,000.00), in return for
one-half of one percent (.5%) reduction in the Interest Rate, to receive
one-twelfth (1/12) of the Interest Payment in cash monthly. Interest payable for
any month or portion of a month will be computed on the basis of the number of
days elapsed in a 360-day year of twelve 30-day months.
Annual Interest Payments will be made no later than the anniversary of the
Issue Date. Each monthly Interest Payment installment or portion thereof, will
be made no later than the last day of each month. Notwithstanding the foregoing,
the Company may elect in its sole and absolute discretion to make any interest
payment prior to the date it becomes due without penalty or premium of any kind.
If the term of this Debenture is not automatically renewed as provided below,
payment of the Principal Amount and any earned but unpaid interest will be made
no later than the Maturity Date. At the election of the Company, such payments
may be deposited in the United States mail, postage prepaid, addressed to the
holder of this Debenture at the address appearing upon the Debenture register
maintained by the Registrar at the close of business ten (10) days prior to such
payment date. Payment of the principal of and interest on this Debenture will be
made at the office of the Paying Agent in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts. In the event that any date on which principal of or
interest on this Debenture is payable is a Saturday or Sunday or day that is a
legal holiday in the city of Kansas City, Missouri or the state of Missouri (a
"Legal Holiday"), then such payment will be made on the
next succeeding day which is not a Legal Holiday, without any interest or other
payment in respect of such delay, with the same effect as if made on the date
the payment was originally payable.
This Debenture will automatically renew for additional terms, each equal in
length to the original term, unless the registered holder has requested payment
in writing on or prior to the twentieth (20th) day after a Maturity Date or
unless the Company determines not to renew this Debenture. Interest for the term
of each renewal will accrue at the rate offered at the time of renewal by the
Company on newly issued Debentures of like denomination and maturity. This
Debenture may not be extended or refunded.
All or any portion of this Debenture is subject to redemption at any time,
upon notice as provided in the Indenture, at the election of the Company, at
100% of the principal amount so called for redemption, together with interest
accrued to the date fixed for redemption, payable on the surrender of the
Debenture for redemption. Debentures, or portions thereof, for which redemption
and payment provision is made in accordance with the Indenture will cease to
bear interest from and after the date fixed for redemption. If this Debenture is
redeemed in part only, a new Debenture for the portion not redeemed will be
issued in the name of the holder on the cancellation of this Debenture.
This Debenture is one of a duly authorized issue of Junior Subordinated
Debentures of the Company (the "Debentures") issued under and subject in all
respects to the terms of an Indenture dated as of May 12, 2003 (the
"Indenture"), between the Company and U.S. Bank, National Association, as
Trustee (the "Trustee"). Reference is hereby made to the Indenture and all
supplemental indentures for a statement of the respective rights of the Company,
the Trustee, the agents of the Company and the Trustee and the holders of the
Debentures. All capitalized terms used, but not defined, in this Debenture have
the meanings assigned to them in the Indenture. No reference herein to the
Indenture and no provision of this Debenture or of the Indenture shall alter or
impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of and interest on this Debenture in the manner herein
prescribed.
As provided in the Indenture, this Debenture is transferable only on the
Debenture register maintained by the Registrar, upon surrender of this Debenture
for transfer at the office of the Registrar, duly endorsed by, or accompanied by
a written instrument of transfer in a form satisfactory to the Company and the
Registrar duly executed by, the registered holder hereof or his attorney duly
authorized in writing, a copy of which authorization must be delivered with any
such instrument of transfer, and thereupon one or more new Debentures, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees. A service fee may be charged
to replace a lost or stolen Debenture, to transfer this Debenture or to issue a
replacement payment check. The Company, the Trustee and any agent of the Company
or the Trustee may treat the person in whose name this Debenture is registered
as the owner hereof for the purpose of receiving payment as herein provided and
for all other purposes, and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary.
The Company currently serves as Registrar and Paying Agent for the
Debentures.
If this Debenture is issued in the names of holders as joint tenants, the
Registrar may transfer or re-register the ownership of this Debenture upon the
signature of one such joint tenants, and the Company, the Registrar, the Trustee
and any agent of the Company, Registrar or the Trustee shall not be liable to
the other joint tenants for any change of registration or other transfer
effected upon the signature of one of such joint tenants.
Each holder of this Debenture agrees that the indebtedness evidenced by
this Debenture is subordinated in right of payment, to the extent and in the
manner provided in the Indenture, to the prior payment in full of all Senior
Indebtedness, whether outstanding on the date hereof or hereafter incurred. The
Indenture generally defines Senior Indebtedness as all outstanding Indebtedness
for borrowed money (present or future) created, incurred, assumed or guaranteed
by the Company (and all renewals, extensions or refundings thereof), which is
(i) not expressly subordinate or junior to any other Indebtedness of the
Company; (ii) which is expressly subordinate and junior to the Indebtedness
described in clause (i) but not to any other Indebtedness of the Company and
(iii) which is expressly subordinate and junior to the Indebtedness described in
clauses (i) and (ii) but not to any other Indebtedness of the Company.
2
If an Event of Default, as defined in the Indenture, occurs and is
continuing, the principal of and accrued interest on all Debentures may be
declared due and payable in the manner and with the effect provided in the
Indenture. The Indenture generally provides that an Event of Default occurs if:
(i) the Company fails to pay any installment of interest on a Debenture when the
same becomes due and payable and the failure to pay continues for a period of
ten (10) days after receipt of written notice from the holder of the Debenture
or the Trustee; (ii) the Company fails to pay the principal of any Debenture
when the same becomes due and payable at maturity, upon redemption or otherwise,
and the failure to pay continues for a period of ten (10) days after receipt of
written notice from the holder of the Debenture or the Trustee; (iii) the
Company becomes subject to certain events of bankruptcy or insolvency; or (iv)
the Company fails to comply with any of its other agreements in, or the
provisions of, the Debenture or the Indenture and such failure is not cured or
waived within sixty (60) days after receipt by the Company of a specific written
notice from the Trustee or the holders of at least a majority in principal
amount of the then outstanding Debentures.
As permitted in the Indenture, the Indenture, other than subordination
provisions, may be amended and the rights and obligations of the Company and the
rights of the holders of the Debentures under the Indenture modified at any time
by the Company with the consent of the Trustee and holders of a majority in
principal amount of the then outstanding Debentures. The Company and the Trustee
may not modify the Indenture without the consent of each holder affected if the
modification (i) affects the terms of payment of, the principal of, or any
interest on, any Debenture; (ii) changes the percentage of Debenture holders who
consent to a waiver or modification as required; (iii) affects the subordination
provisions of the Indenture in a manner that adversely affects the right of any
holder; or (iv) waives any Event of Default in the payment of principal of, or
interest on, any Debenture.
As permitted by the Indenture, the Trustee and holders of a majority in
principal amount of the then outstanding Debentures, on behalf of the holders of
all Debentures, may waive compliance by the Company with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences, except an Event of Default in the payment of principal or of
interest on the Debentures.
References hereby made to the further provisions of this Debenture set
forth on the reverse side hereof, which further provisions shall for all
purposes have the effect as if set forth in this place.
This Debenture, including the validity hereof, will be construed in
accordance with and governed by the laws of the state of Missouri.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
PIONEER FINANCIAL SERVICES, INC.
Kansas City, Missouri
By:
-----------------------------------------
(Authorized Officer)
Attest:
3
This Debenture is transferable only on the books of and by any joint tenant
presenting the original Debenture at the Office of:
Pioneer Financial Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
The following abbreviations, when used in the 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
TEN ENT - as tenants by the
entireties
--------------- Custodian-----------
(Minor) (Cust)
JT TEN - as joint tenants with Under Uniform Gift to Minors
right of survivor ship Act of
and not as tenants in ------------------------------
common (State)
▇▇▇ - transfer on death
direction in event of
owner's death, to person
named on face subject to
▇▇▇ rules referenced
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 ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇] Attorney to transfer said Certificate
on the books of the registrar, with full power
of substitution in the premises.
/ / Please Insert Social Security
or Other Identifying Number
of New Order
/ / Permanently Changes
the Name(s) or
or Registration OLD NAME(Registration):
----------------------
NEW NAME (Registration):
----------------------
/ / Surrendering the
Certificate at Maturity Please Send Check to:
for Payment
-------------------------------
-------------------------------
DATED:
---------------------------
X Subscribed and sworn to before me
---------------------------------- this __ day of __________, 20____.
Registered Owner
X
---------------------------------- --------------------------------(SEAL)
Registered Owner
X
--------------------------------- Notary Public My Commission Expires
Registered Owner
------------------------------------
NOTICE: The signature must correspond with the name as it appears upon the
face of the Certificate in every particular, without alteration or
enlargement or any change whatever.
EXHIBITS N, O and OO
Exhibits N, O and OO are omitted and are merely forms of a financing statement
(i) filed with the Missouri Secretary of State naming, the registrant as the
debtor, (ii) naming each subsidiary of the registrant, except Pioneer Military
Insurance Company, as a debtor and filed with the Secretary of State of
subsidiaries respective state of incorporation, and (iii) naming each subsidiary
of the registrant, except Pioneer Military Insurance Company, as a debtor,
except Pioneer Military Insurance Company, as a debtor and filed with the
Secretary of State of their respective state of incorporation. Copies of these
forms will be provided upon request.
EXHIBIT P
SECURITY AGREEMENT
This Security Agreement, is made as of this 1st day of October, 2003 by
_______________________________ ("Assignor") to UMB Bank, N.A. ("Assignee") as
Agent of all banks and financial institutions which are parties to that certain
Amended and Restated Senior Lending Agreement dated as of October 1, 2003
described below.
In consideration of the outstanding indebtedness of Assignor to Pioneer
Financial Services, Inc. ("Pioneer") and future loans which may be made by
Assignee or any Bank (as defined below) to Pioneer, some of the proceeds of
which will be used to fund the operations of Assignor, this Security Agreement
is made to Assignee, and its successors and assigns, as security for the payment
of all loans made to Pioneer by Assignee and all other banks and financial
institutions (the "Banks") which are parties to that certain Amended and
Restated Senior Lending Agreement dated as of October 1, 2003 by and among
Pioneer, Assignee and the Banks, whether now or hereafter existing and for the
performance and observance of all other obligations of Pioneer to the Assignee
and the Banks now existing or hereafter created. Assignor does hereby sell,
assign, transfer and set over to Assignee, its successors and assigns, and the
Banks and grant a security interest to Assignee, its successors and assigns and
the Banks in all payments which are or may be due to Assignor from 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, all promissory notes and other instruments
payable to Assignor and all payment intangibles of Assignor, all cash, deposit
accounts, notes receivable, accounts, accounts receivable, reserves for loss and
dealer reserves for loss of Assignor. The acceptance of this Security Agreement
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 Pioneer or any other document given by Assignor to
Pioneer which evidences any obligation of Assignor to Pioneer. After maturity,
whether by acceleration or otherwise, of any note or other obligations of
Pioneer to Assignee, the Assignee, its successors and its assigns, as Agent for
the Banks, 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, as Agent for the Banks, 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 the Assignee and each of its successors
and assigns, as Agent for the Banks.
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 and do all other things
necessary to further carry these presents into effect, to perfect the security
interests granted herein and to accomplish any other purpose necessary or
appropriate in connection with this Security Agreement.
The payment obligations of Assignor's customers to it and any and all notes or
other documents evidencing the same shall not at any time be sold, assigned,
transferred or set over by Assignor except to Pioneer, Assignee and its
successors and assigns and the Banks 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, Pioneer and the Banks.
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 Security Agreement 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 Security Agreement 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 or Pioneer to Assignee and the Banks. This Security
Agreement, together with all of the covenants and warranties herein contained,
shall inure to the benefit of the Assignee, its successors and assigns, and the
Banks, and Assignee may unconditionally assign all of its rights under this
Security Agreement 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 Security Agreement 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 Security Agreement shall be deemed to be made under and shall be
interpreted under the laws of the State of Missouri and Assignee shall have all
of the rights of a secured creditor under the Uniform Commercial Code as in
effect now or hereafter in the State of Missouri.
IN WITNESS WHEREOF, Assignor has caused this Security Agreement to be duly
executed as of the day and year first above written.
ASSIGNOR:
By: ___________________________________
Name: ___________________________________
Title:___________________________________
The undersigned, UMB Bank, N.A., as Agent for the Banks, accepts the foregoing
Security Agreement on the terms and conditions stated therein as of this 1st day
of October, 2003.
UMB BANK, N.A.
(ASSIGNEE)
By: ___________________________________
Name: ___________________________________
Title:___________________________________