CREDIT AND LOAN AGREEMENT
CREDIT
AND LOAN AGREEMENT
This
Credit and Loan Agreement, dated as of April 7, 2008 (the “effective date”), is
among Secured Financial Network, Inc., a Nevada corporation (“SFNL”) and
Commercial Holding,
AG (“Lender”). The parties hereto agree as
follows:
ARTICLE
I - DEFINITIONS
As used
in this Agreement:
“Acquisition”
means the anticipated acquisition by SFNL or its Subsidiary of AmeriNet, LLC
pursuant to that certain Letter of Intent dated as of October 30, 2007, by and
among SFNL and ACS and Xxxxx Xxxxxx.
“Agreement”
means this Credit and Loan Agreement, as it may be amended or modified and in
effect from time to time.
“GAAP”
means generally accepted accounting principles as in effect from time to time,
applied in a manner consistent with that used in preparing the financial
statements referred to in Section 5.4.
“Article”
means an article of this Agreement unless another document is specifically
referenced.
“Authorized
Officer” means any of the Chief Executive Officer, President, Vice President or
Chief Financial Officers of SFNL, acting singly.
“Business
Day” means a day (other than a Saturday or Sunday) on which banks generally are
open in Dallas, Texas for the conduct of substantially all of their commercial
lending activities.
“Capital
Expenditures” means, without duplication, any expenditures for any purchase or
other acquisition of any asset which would be classified as a fixed or capital
asset on a consolidated balance sheet of SFNL and its Subsidiaries prepared in
accordance with GAAP.
“Capitalized
Lease” of a Person means any lease of Property by such Person as lessee which
would be capitalized on a balance sheet of such Person prepared in accordance
with GAAP.
“Capitalized
Lease Obligations” of a Person means the amount of the obligations of such
Person under Capitalized Leases which would be shown as a liability on a balance
sheet of such Person prepared in accordance with GAAP.
“Cash
Equivalent Investments” means (a) short-term obligations of, or fully guaranteed
by, the United States of America, (b) commercial paper rated A-1 or better by
S&P or P-1 or better by Moody's, (c) demand deposit
accounts maintained in the ordinary course of business, and (iv) certificates of
deposit issued by and time deposits with commercial banks (whether domestic or
foreign) having capital and surplus in excess of $100,000,000; provided in each case that
the same provides for payment of both principal and interest (and not principal
alone or interest alone) and is not subject to any contingency regarding the
payment of principal or interest.
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“Change
in Control” means (a) the acquisition by any Person, or two or more Persons
acting in concert, of beneficial ownership (within the meaning of Rule 13d-3 of
the Securities and Exchange Commission under the Securities Exchange Act of
1934) of 40% or more of the outstanding shares of voting stock of SFNL; or (b)
the sale of all or substantially all of the assets of SFNL.
“Code”
means the Internal Revenue Code of 1986, as amended, reformed or otherwise
modified from time to time.
“Commitment”
means the obligation of Lender to make Loans to SFNL up to an aggregate of
$500,000, as such amount may be modified from time to time pursuant to the terms
hereof.
“Consolidated
Indebtedness” means at any time the Indebtedness of SFNL and its Subsidiaries
calculated on a consolidated basis as of such time.
“Contingent
Obligation” of a Person means any agreement, undertaking or arrangement by which
such Person assumes, guarantees, endorses, contingently agrees to purchase or
provide funds for the payment of, or otherwise becomes or is contingently liable
upon, the obligation or liability of any other Person, or agrees to maintain the
net worth or working capital or other financial condition of any other Person,
or otherwise assures any creditor of such other Person against loss, including,
without limitation, any comfort letter, operating agreement, take-or-pay
contract or the obligations of any such Person as general partner of a
partnership with respect to the liabilities of the partnership.
“Controlled
Group” means all members of a controlled group of corporations or other business
entities and all trades or businesses (whether or not incorporated) under common
control which, together with SFNL or any of its Subsidiaries, are treated as a
single employer under Section 414 of the Code.
“Default”
means an event described in Article VIII.
“Environmental
Laws” means any and all federal, state, local and foreign statutes, laws,
judicial decisions, regulations, ordinances, rules, judgments, orders, decrees,
plans, injunctions, permits, concessions, grants, franchises, licenses,
agreements and other governmental restrictions relating to (a) the protection of
the environment, (b) the effect of the environment on human health, (c)
emissions, discharges or releases of pollutants, contaminants, hazardous
substances or wastes into surface water, ground water or land, or (d) the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, hazardous substances or
wastes or the clean-up or other remediation thereof.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time
to time, and any rule or regulation issued thereunder.
“Excluded
Taxes” means, in the case of Lender, taxes imposed on its overall net income,
and franchise taxes imposed on it, by (a the jurisdiction under the laws of
which such Lender is incorporated or organized or resides or (b) the
jurisdiction in which the such Lender's principal executive office is
located.
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“Exhibit”
refers to an exhibit to this Agreement, unless another document is specifically
referenced.
“Indebtedness”
of a Person means such Person’s (a) obligations for borrowed money, (b)
obligations representing the deferred purchase price of Property or services
(other than accounts payable arising in the ordinary course of such Person’s
business payable on terms customary in the trade), (c) obligations, whether or
not assumed, secured by Liens or payable out of the proceeds or production from
Property now or hereafter owned or acquired by such Person, (d) obligations
which are evidenced by notes, acceptances, or other instruments, (e) obligations
of such Person to purchase securities or other Property arising out of or in
connection with the sale of the same or substantially similar securities or
Property, (f) Capitalized Lease Obligations and (g) any other obligation for
borrowed money or other financial accommodation which in accordance with GAAP
would be shown as a liability on the consolidated balance sheet of such
Person.
“Investment”
of a Person means any loan, advance (other than commission, travel and similar
advances to officers and employees made in the ordinary course of business),
extension of credit (other than accounts receivable arising in the ordinary
course of business on terms customary in the trade) or contribution of capital
by such Person; stocks, bonds, mutual funds, partnership interests, notes,
debentures or other securities owned by such Person; any deposit accounts and
certificate of deposit owned by such Person; and structured notes, derivative
financial instruments and other similar instruments or contracts owned
by such Person.
“Lender”
means is defined in the Preamble to this Agreement, and its successors and
assigns.
“Lien”
means any lien (statutory or other), mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance or preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, the interest of a vendor or lessor under any
conditional sale, Capitalized Lease or other title retention
agreement).
“Loan”
means the loans made pursuant to Article II (or any continuation
thereof).
“Loan
Documents” means this Agreement, any Notes issued pursuant to Section 2.4 and
the Security Agreement.
“Material
Adverse Effect” means a material adverse effect on (a) the business, Property,
condition (financial or otherwise), results of operations, or prospects of SFNL
and its Subsidiaries taken as a whole, (b) the ability of SFNL to perform its
obligations under the Loan Documents, or (c) the validity or enforceability of
any of the Loan Documents or the rights or remedies of the Lender or Lender
thereunder.
“Material
Indebtedness” any Indebtedness in excess of 100,000.
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“Maturity”
means the date that is (a) the one year anniversary of the consummation of the
Acquisition, or (b) if the Acquisition is not consummated before December 31,
2008, then on December 31, 2008.
“Multiemployer
Plan” means a Plan maintained pursuant to a collective bargaining agreement or
any other arrangement to which SFNL or any member of the Controlled Group is a
party to which more than one employer is obligated to make
contributions.
“Note”
means any promissory note issued pursuant to Section 2.4 in the form of Exhibit
A.
“Obligations”
means all unpaid principal of and accrued and unpaid interest on the Loans, all
accrued and unpaid fees and all expenses, reimbursements, indemnities and other
obligations of SFNL to Lender or any indemnified party arising under the Loan
Documents.
“Operating
Lease” of a Person means any lease of Property (other than a Capitalized Lease)
by such Person as lessee which has an original term (including any required
renewals and any renewals effective at the option of the lessor) of one year or
more.
“Operating
Lease Obligations” means, as at any date of determination, the amount obtained
by aggregating the present values, determined in the case of each particular
Operating Lease by applying a discount rate (which discount rate shall equal the
discount rate which would be applied under GAAP if such Operating Lease were a
Capitalized Lease) from the date on which each fixed lease payment is due under
such Operating Lease to such date of determination, of all fixed lease payments
due under all Operating Leases of SFNL and its Subsidiaries.
“Other
Taxes” is defined in Section 3.5.
“PBGC”
means the Pension Benefit Guaranty Corporation, or any successor
thereto.
“Person”
means any natural person, corporation, firm, joint venture, partnership, limited
liability company, association, enterprise, trust or other entity or
organization, or any government or political subdivision or any agency,
department or instrumentality thereof.
“Plan”
means an employee pension benefit plan which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Code as to
which SFNL or any member of the Controlled Group may have any
liability.
“Property”
of a Person means any and all property, whether real, personal, tangible,
intangible, or mixed, of such Person, or other assets owned, leased or operated
by such Person.
“Reportable
Event” means a reportable event as defined in Section 4043 of ERISA and the
regulations issued under such section, with respect to a Plan, excluding,
however, such events as to which the PBGC has by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event, provided, however, that a
failure to meet the minimum funding standard of Section 412 of the Code and of
Section 302 of ERISA shall be a Reportable Event regardless of the issuance of
any such waiver of the notice requirement in accordance with either Section
4043(a) of ERISA or Section 412(d) of the Code.
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“Schedule”
refers to a specific schedule to this Agreement, unless another document is
specifically referenced.
“Section”
means a numbered section of this Agreement, unless another document is
specifically referenced.
“Secured
Obligations” means, collectively, the Obligations owing to Lender.
“Securities”
means SFNL Common Stock and Warrants.
“Single
Employer Plan” means a Plan maintained by SFNL or any member of the Controlled
Group for employees of SFNL or any member of the Controlled Group.
“SFNL” is
defined in the preamble to this Agreement.
“SFNL
Common Stock” means the common stock, $.001 par value per share, of
SFNL.
“Subsidiary”
of a Person means (a) any corporation more than 50% of the outstanding
securities having ordinary voting power of which shall at the time be owned or
controlled, directly or indirectly, by such Person or by one or more of its
Subsidiaries or by such Person and one or more of its Subsidiaries, or (b) any
partnership, limited liability company, association, joint venture or similar
business organization more than 50% of the ownership interests having ordinary
voting power of which shall at the time be so owned or
controlled. Unless otherwise expressly provided, all references
herein to a “Subsidiary” shall mean a Subsidiary of SFNL.
“Substantial
Portion” means, with respect to the Property of SFNL and its Subsidiaries,
Property which (a) represents more than 10% of the consolidated assets of SFNL
and its Subsidiaries as would be shown in the consolidated financial statements
of SFNL and its Subsidiaries as at the beginning of the twelve-month period
ending with the month in which such determination is made, or (b) is responsible
for more than 10% of the consolidated net sales or of the consolidated net
income of SFNL and its Subsidiaries as reflected in the financial statements
referred to in clause (a) above.
“Taxes”
means any and all present or future taxes, duties, levies, imposts, deductions,
charges or withholdings, and any and all liabilities with respect to the
foregoing, but excluding Excluded
Taxes.
“Unfunded
Liabilities” means the amount (if any) by which the present value of all vested
and unvested accrued benefits under all Single Employer Plans exceeds the fair
market value of all such Plan assets allocable to such benefits, all determined
as of the then most recent valuation date for such Plans using PBGC actuarial
assumptions for single employer plan terminations.
“Unmatured
Default” means an event which but for the lapse of time or the giving of notice,
or both, would constitute a Default.
“Warrants”
means warrants to purchase shares of SFNL Common Stock in the form attached
hereto as Exhibit A.
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“Wholly-Owned
Subsidiary” of a Person means (a) any Subsidiary all of the outstanding voting
securities of which shall at the time be owned or controlled, directly or
indirectly, by such Person or one or more Wholly-Owned Subsidiaries of such
Person, or by such Person and one or more Wholly-Owned Subsidiaries of such
Person, or (b) any partnership, limited liability company, association, joint
venture or similar business organization 100% of the ownership interests having
ordinary voting power of which shall at the time be so owned or
controlled.
The
foregoing definitions shall be equally applicable to both the singular and
plural forms of the defined terms.
ARTICLE
II – CREDIT COMMITTMENT
2.1 Credit
Commitment. From and including the date of this Agreement and
prior to the Maturity Date, Lender agrees, on the terms and conditions set forth
in this Agreement, to make a Loans to SFNL in an amount not to exceed in the
aggregate Commitment. All Loans shall be evidenced by a promissory
note in the form attached hereto as Exhibit B (each, a “Note”)
2.2 Method of
Payment. All payments of the Obligations hereunder shall be
made, without setoff, deduction, or counterclaim, in immediately available funds
to Lender at Lender’ address specified pursuant to Section 9.10, by noon (local
time) on the date when due.
2.3 Prior
Notes. Lender has acquired, by assignment, those certain
promissory notes previously issued by SFNL to third parties, copies of which are
attached hereto as Exhibit C (the “Previous Notes”). The parties
acknowledge and agree that the loans evidenced by the Previous Notes shall be
deemed to be Loans under this Agreement and the Previous Notes shall be deemed
Notes under this Agreement.
2.4 Securities. As
additional consideration for this Agreement, SFNL shall within ten days of the
Effective Date, issue to Lender, 2,000,000 shares of SFNL Common Stock, and
Warrants to purchase and additional 1,000,000 shares of SFNL Common
Stock.
ARTICLE
III - REPAYMENT OF THE NOTES
3.1 Interest Rates and Interest
Payments. The Notes will bear interest on the outstanding
principal amount thereof at a per annum rate equal to ten percent
(10%). Interest on the Notes will be computed on the basis of a year
of 360 days, composed of twelve 30-day months, and the actual number of days
elapsed.
3.2 Repayment of the
Notes. SFNL covenants and agrees to make payments to Lender,
of accrued interest on the Notes on the first Business Day of each calendar
quarter after the Effective Date. All outstanding principle and
accrued interest on the Notes shall paid in full to Lender on the Maturity
Date.
3.3 Mandatory
Prepayment. The Notes shall be prepaid in full, together with
all interest, fees and expenses, in the event of a Change of
Control.
3.4 Home Office
Payment. SFNL will pay all sums becoming due on such Note for
principal,
premium, if any, and interest to Lender by the method and at the address
specified for such purpose Section 9.10, or by such other method or at such
other address as Lender shall have from time to time specified to SFNL in
writing for such purpose, without the presentation or surrender of such Note or
the making of any notation thereon, except that upon written request of SFNL
made concurrently with or reasonably promptly after payment or prepayment in
full of any Note, Lender of a Note shall surrender such Note for cancellation,
reasonably promptly after such request, to SFNL at their principal executive
office.
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3.5 Taxes. Any
and all payments by SFNL hereunder or under the Notes or other Loan Documents
that are made to or for the benefit of Lender shall be made free and clear of
and without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings and penalties, interests and all other
liabilities with respect thereto (collectively, “Taxes”), excluding taxes
imposed on Lender’s or Purchasers’ net income or capital and franchise taxes
imposed on any of them by the jurisdiction under the laws of which any of them
is organized or any political subdivision thereof (all such nonexcluded Taxes
being hereinafter referred to as “Covered Taxes”). If any of SFNL
shall be required by law to deduct any Covered Taxes from or in respect of any
sum payable hereunder or under any Notes or other Purchase Documents to Lender
for the benefit of Purchasers, or to Purchasers, the sum payable shall be
increased as may be necessary so that after making all required deductions of
Covered Taxes (including deductions of Covered Taxes applicable to additional
sums payable under this paragraph), each Purchaser receives an amount equal to
the sum it would have received had no such deductions been made. SFNL
shall make such deductions and SFNL shall pay the full amount so deducted to the
relevant taxation authority or other authority in accordance with applicable
law. In addition, SFNL agree to pay any present or future stamp,
documentary, excise, privilege, intangible or similar levies that arise at any
time or from time to time from any payment made under any and all Purchase
Documents or from the execution or delivery by SFNL or from the filing or
recording or maintenance of, or otherwise with respect to the exercise by Lender
or Purchasers of their respective rights under any and all Purchase Documents
(collectively, “Other Taxes”). SFNL will indemnify Lender and
Purchasers for the full amount of Covered Taxes imposed on or with respect to
amounts payable hereunder and Other Taxes, and any liability (including
penalties, interest and expenses) arising therefrom or with respect
thereto. Payment of this indemnification shall be made within thirty
(30) days from the date Lender or Purchasers provide SFNL with a certificate
certifying and setting forth in reasonable detail the calculation thereof as to
the amount and type of such Taxes. Any such certificates submitted by
Lender or Purchasers in good faith to SFNL shall, absent manifest error, be
final, conclusive and binding on all parties. The obligation of SFNL
under this Section 3.5 shall survive the payment of the Notes and the
termination of this Agreement. Within thirty (30) days after SFNL
having received a receipt for payment of Covered Taxes and/or Other Taxes, SFNL
shall furnish to Lender, the original or certified copy of a receipt evidencing
payment thereof.
3.6 Maximum Lawful
Rate. This Agreement, the Notes and the other Purchase
Documents are hereby limited by this Section 3.6. In no event,
whether by reason of acceleration of the maturity of the amounts due hereunder
or otherwise, shall interest and fees contracted for, charged, received, paid or
agreed to be paid to Purchasers exceed the maximum amount permissible under such
applicable law. If, from any circumstance whatsoever, interest and
fees would otherwise be payable to Lender or Purchasers in excess of the maximum
amount permissible under applicable law, the interest and fees shall be reduced
to the maximum amount permitted under applicable law. If from any
circumstance, Lender or Purchasers shall have received anything of value deemed
interest by applicable law in excess of the maximum lawful amount, an amount
equal to any excess of interest shall be applied to the reduction of the
principal amount of the Notes, in such manner as may be determined by
Purchasers, and not to the payment of fees or interest, or if such excessive
interest exceeds the unpaid balance of the principal amount of the Notes, such
excess shall be refunded to SFNL.
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3.7 Certain
Waivers. SFNL unconditionally waive (a) any rights to
presentment, demand, protest or (except as expressly required hereby) notice of
any kind, and (b) any rights of recission, setoff, counterclaim or defense to
payment under the Notes or otherwise that SFNL may have or claim against any
Purchaser, the Lender or any prior Purchaser or Lender.
ARTICLE
IV – CONDITIONS
4.1 Conditions to
Commitment. The obligation of Lender to make Loans is subject
to the satisfaction of the following conditions on and as of the date of each
such Loan:
(a) Representations and
Warranties True. The representations and warranties contained
in Article 5 hereof shall be true and correct in all material respects at and as
of the date of such Loan, except to the extent of changes caused by the
transactions expressly contemplated herein.
(b) Material Adverse
Effect. There will have been no Material Adverse Effect in the
business or financial condition of the Loan Parties since September 30, 2007,
except as noted in Schedule 5.1.
(c) Security
Agreement. SFNL and Lender, shall have entered into a security
agreement, in form and substance as set forth in Exhibit D attached hereto (as
the same may be amended, modified or supplemented from time to time in
accordance with the terms thereof, the “Security Agreement”). SFNL
shall have executed and delivered to Lender, such financing statements and other
instruments (collectively, “Financing Statements”) as Lender shall require in
order to perfect and maintain the continued perfection of the security interest
created by the Security Agreement. The Lender shall have received reports of
filings with appropriate government agencies showing that there are no Liens on
the assets of the Loan Parties other than Permitted Liens.
(d) Closing
Documents. SFNL will have delivered or caused to be delivered
to Lender all of the following documents in form and substance satisfactory to
Lender:
(i) copies
of the resolutions duly adopted by SFNL’s board of directors authorizing the
execution, delivery and performance by SFNL of this Agreement and each of the
other agreements, instruments and documents contemplated hereby to which the
respective SFNL is a party, and the consummation of all of the other
Transactions, certified as of the Closing Date by the secretary or assistant
secretary of the respective SFNL;
(ii) a
certificate dated as of the Closing Date from an officer of SNFL stating that
the conditions specified in this Section 4.1 have been fully satisfied or waived
by Lender;
(iii) such
other documents relating to the Transactions contemplated by this Agreement as
Lender or its special counsel may reasonably request.
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4.2 Proceeding. All
proceedings taken or required to be taken in connection with the transactions
contemplated hereby to be consummated at or prior to the Closing and all
documents incident thereto will be satisfactory in form and substance to Lender
and its special counsel and to Purchasers and their special
counsel.
4.3 Waiver. Any
condition specified in this Article IV may be waived by Lender; provided that no
such waiver will be effective against Lender unless it is set forth in a writing
executed by Lender.
ARTICLE
V – REPRESENTATIONS AND WARRANTIES
SFNL
represents and warrants to Lender that:
5.1 Organization. Each
of SFNL and its Subsidiaries is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or
organization. Each of SFNL and its Subsidiaries (a) is qualified or licensed in
all jurisdictions where such qualification or license is required to own and
operate its properties and conduct its business in the manner and at the places
presently conducted; (b) holds all franchises, grants, licenses, certificates,
permits, consents and orders, all of which are valid and in full force and
effect, from all applicable United States and foreign regulatory authorities
necessary to own and operate its properties and to conduct its business in the
manner and at the places presently conducted; and (c) has full power and
authority (corporate and other) to own, lease and operate its respective
properties and assets and to carry on its business as presently conducted and as
proposed to be conducted, except where the failure to be so qualified or
licensed or to hold such franchises, grants, licenses, certificates, permits,
consents and orders or to have such power and authority would not, when taken
together with all other such failures, reasonably be expected to have a Material
Adverse Effect with respect to SFNL. Schedule 5.0 sets forth
the name and jurisdiction of incorporation or organization of each subsidiary of
SFNL. Except as noted in Schedule 5.0 SFNL does not directly or
indirectly own any equity or similar interest in, or any interest convertible
into or exchangeable or exercisable for, any equity or similar interest in, any
corporation, partnership, joint venture or other business association or
entity.
5.2 Capital
Structure.
(a) As
of the Effective Date, the authorized capital stock of SFNL consists of
100,000,000 shares of Common Stock and -0- shares of preferred
stock. As of the Effective Date, (i) 41,175,247 shares of Common
Stock were issued and outstanding, (ii) 58,824,753 shares of Common Stock were
held in the treasury of SFNL, (iii) -0- shares of Common Stock were reserved for
issuance under outstanding SFNL Stock Options, including stock appreciation
rights, performance units and stock units, and (iv) no shares of preferred stock
were issued or outstanding. All the outstanding shares of SFNL’s
capital stock are duly authorized, validly issued, fully paid and
non-assessable. There are no bonds, debentures, notes or other
indebtedness having voting rights (or convertible or exchangeable into
securities having such rights) (“SFNL Voting Debt”) of SFNL or any of its
Subsidiaries issued and outstanding. The shares of Common Stock issuable upon
conversion of the Notes have been reserved for issuance and, when issued upon
conversion of the Notes in accordance with the terms thereof, will be duly
authorized, validly issued and fully paid and non assessable and not subject to
preemptive rights. Except as set forth above, as described in SFNL
SEC Documents and for the transactions contemplated by this Agreement, (x) there
are no shares of capital stock of SFNL authorized, issued or outstanding and (y)
there are no existing (A) options, warrants, calls, preemptive rights,
subscriptions or other rights, convertible or exchangeable securities,
agreements, arrangements or commitments of any character, relating to the issued
or unissued capital stock of SFNL or any of its Subsidiaries, obligating SFNL or
any of its Subsidiaries to issue, transfer or sell or cause to be issued,
transferred or sold any shares of capital stock or SFNL Voting Debt of, or other
equity interest in, SFNL or any of its Subsidiaries except as noted in Schedule
5.3, Note and Warrant Schedule as of 12/31/2007, (B) securities convertible into
or exchangeable for such shares or equity interests except as noted in Schedule
5.2 or (C) obligations of SFNL or any of its Subsidiaries to grant, extend or
enter into any such option, warrant, call, preemptive right, subscription or
other right, convertible security, agreement, arrangement or
commitment.
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(b) All
of the outstanding shares of capital stock of each of SFNL’s Subsidiaries are
beneficially owned by SFNL, directly or indirectly, and all such shares have
been validly issued and are fully paid and nonassessable and are owned by either
SFNL or one of its Subsidiaries free and clear of all Liens.
(c) There
are no voting trusts, proxies or other agreements or understandings to which
SFNL or any of its Subsidiaries is a party with respect to the voting of the
capital stock of SFNL or any of its Subsidiaries. Neither SFNL nor
its Subsidiaries is a party to any agreement or obligation, contingent or
otherwise, to redeem, repurchase or otherwise acquire or retire shares of
capital stock of SFNL or any of its Subsidiaries, whether as a result of the
transactions contemplated by this Agreement or otherwise.
(d) Since
September 30, 2007, SFNL has not (i) made or agreed to make any stock split or
stock dividend, or issued or permitted to be issued any shares of capital stock,
or securities exercisable for or convertible into shares of capital stock, of
SFNL other than pursuant to SFNL Stock Option Plan or any outstanding SFNL Stock
Option, (ii) repurchased, redeemed or otherwise acquired any shares of capital
stock of SFNL or (iii) declared, set aside, made or paid to the shareholders of
SFNL dividends or other distributions on the outstanding shares of capital stock
of SFNL.
5.3 Authorization and
Validity. SFNL has the power and authority and legal right to
execute and deliver the Loan Documents and to perform its obligations
thereunder. The execution and delivery by SFNL of the Loan Documents
and the performance of its obligations thereunder have been duly authorized by
proper corporate proceedings, and the Loan Documents constitute legal, valid and
binding obligations of SFNL enforceable against SFNL in accordance with their
terms, except as enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors’ rights
generally.
5.4 No Conflict; Government
Consent. Neither the execution and delivery by SFNL of the
Loan Documents, nor the consummation of the transactions therein contemplated,
nor compliance with the provisions thereof will violate (a) any law, rule,
regulation, order, writ, judgment, injunction, decree or award binding on SFNL
or any of its Subsidiaries or (b) SFNL’s or any Subsidiary’s articles or
certificate of incorporation or by-laws, or (c) the provisions of any indenture,
instrument or
(c) agreement
to which SFNL or any of its Subsidiaries is a party or is subject, or by which
it, or its Property, is bound, or conflict with or constitute a default
thereunder, or result in, or require, the creation or imposition of any Lien in,
of or on the Property of SFNL or a Subsidiary pursuant to the terms of any such
indenture, instrument or agreement. No order, consent, adjudication,
approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, or other action in respect of any
governmental or public body or authority, or any subdivision thereof, which has
not been obtained by SFNL or any of its Subsidiaries, is required to be obtained
by SFNL or any of its Subsidiaries in connection with the execution and delivery
of the Loan Documents, the receipt of the Loans under this Agreement, the
payment and performance by SFNL of the Obligations or the legality, validity,
binding effect or enforceability of any of the Loan Documents.
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5.5 SEC Filings; Financial
Statements.
(a) SFNL
has filed all forms, reports, statements, schedules, registration statements and
other documents required to be filed with the SEC since January 1, 2006 (the
“SFNL SEC Documents”), each of which complied in all material respects with the
applicable requirements of the Securities Act of 1933, as amended (the
“Securities Act”), and the rules and regulations promulgated thereunder, or the
Exchange Act and the rules and regulations promulgated thereunder, each as in
effect on the date so filed. No Subsidiary of SFNL is required to
file any form, report, statement, schedule, registration statement or other
document with the SEC. No SFNL SEC Document, when filed (or, if
amended or superseded by a filing prior to the Closing Date, on the date of such
filing) contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(b) Each
of the audited and unaudited consolidated financial statements of SFNL
(including any related notes thereto) included in SFNL SEC Documents have been
prepared in accordance with United States generally accepted accounting
principles (“GAAP”), applied on a consistent basis during the relevant periods
(except as may be disclosed in the notes thereto), and present fairly the
consolidated financial position and consolidated results of operations and
changes in cash flows of SFNL and its Subsidiaries as of the respective dates or
for the respective periods reflected therein, except, in the case of the
unaudited interim financial statements, for normal and recurring year-end
adjustments that are not material.
(c) On
the consolidated balance sheet of SFNL and its Subsidiaries as of September 30,
2007 included in SFNL SEC Documents (the “Latest Balance Sheet”), or in the
notes thereto, neither SFNL nor any of its Subsidiaries has any liabilities,
debts, claims or obligations of any nature (whether accrued, absolute, direct or
indirect, contingent or otherwise, whether due or to become due), and there is
no existing condition or set of circumstances which would reasonably be
expected, individually or in the aggregate, to result in such a liability,
except for liabilities or obligations incurred in the ordinary course of
business consistent with past practice since September 30, 2007, none of which
would, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect with respect to SFNL.
5.6 Material Adverse
Change. Since September 30, 2007, there has been no change in
the business,
Property, condition (financial or otherwise) or results of operations of SFNL
and its Subsidiaries which could reasonably be expected to have a Material
Adverse Effect, except as noted in Schedule 5.1.
11
5.7 Taxes. Except
as noted in Schedule 5.4 SFNL and its Subsidiaries have filed all United States
federal tax returns and all other tax returns which are required to be filed and
have paid all taxes due pursuant to said returns or pursuant to any assessment
received by SFNL or any of its Subsidiaries, except such taxes, if any, as are
being contested in good faith and as to which adequate reserves have been
provided in accordance with GAAP and as to which no Lien exists. No
tax liens have been filed and no claims are being asserted with respect to any
such taxes. The charges, accruals and reserves on the books of SFNL
and its Subsidiaries in respect of any taxes or other governmental charges are
adequate.
5.8 Litigation and Contingent
Obligations. There is no litigation, arbitration, governmental
investigation, proceeding or inquiry pending or, to the knowledge of any of
their officers, threatened against or affecting SFNL or any of its Subsidiaries
which could reasonably be expected to have a Material Adverse Effect or which
seeks to prevent, enjoin or delay the making of any Loans. Other than
any liability incident to any litigation, arbitration or proceeding that could
not reasonably be expected to have a Material Adverse Effect, SFNL has no
material contingent obligations not provided for or disclosed in the financial
statements referred to in Section 5.4.
5.9 Labor and
Employment. SFNL and its Subsidiaries are and each of their
Plans are in compliance in all material respects with those provisions of ERISA,
the Code, the Age Discrimination in Employment Act, and the regulations and
published interpretations thereunder which are applicable to SFNL or its
Subsidiaries or any such Plan. As of the date hereof, no Reportable
Event has occurred with respect to any Plan as to which any of SFNL or its
Subsidiaries are or were required to file a report with the PBGC. No
Plan has any material amount of unfunded benefit liabilities (within the meaning
of Section 4001(a)(18) of ERISA) or any accumulated funding deficiency (within
the meaning of Section 302(a)(2) of ERISA), whether or not waived, and neither
SFNL nor any member of the Controlled Group has incurred or expects to incur any
material withdrawal liability under Subtitle E of Title IV of ERISA to a
Multiemployer Plan. SFNL is in compliance in all material respects
with all labor and employment laws, rules, regulations and requirements of all
applicable domestic and foreign jurisdictions. There are no pending
or threatened labor disputes, work stoppages or strikes.
5.10 Accuracy of
Information. No information, exhibit or report furnished by
SFNL or any of its Subsidiaries to the Agent or to any Holder in connection with
the negotiation of, or compliance with, the Loan Documents contained any
material misstatement of fact or omitted to state a material fact or any fact
necessary to make the statements contained therein not misleading.
5.11 Material
Agreements.
(a) All
of the contracts of SFNL and its Subsidiaries that are required to be described
in SFNL SEC Documents or to be filed as exhibits thereto (the “SFNL Material
Contracts”) are described in SFNL SEC Documents or filed as exhibits
thereto. Neither SFNL nor any of its Subsidiaries nor, to the
knowledge of SFNL, any other party thereto has violated any provision of, or
committed or failed to perform any act which with or without notice, lapse of
time or both would constitute a default under the provisions of any SFNL
Material Contract, except for such defaults that would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect with
respect to SFNL.
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(b) Neither
SFNL nor any of its Subsidiaries is party to any agreement containing any
provision or covenant limiting in any material respect the ability of SFNL or
any of its Subsidiaries to (i) sell any products or services of or to any other
person, (ii) engage in any line of business in any geographical area or (iii)
compete with or obtain products or services from any person or limiting the
ability of any person to provide products or services to SFNL or any of its
Subsidiaries.
(c) Neither
SFNL nor any of its Subsidiaries is a party to or bound by any contract,
agreement or arrangement which would cause the rights or obligations of any
party thereto to change upon the consummation of the Merger.
5.12 Compliance With
Laws. SFNL and its Subsidiaries have complied with all
applicable statutes, rules, regulations, orders and restrictions of any domestic
or foreign government or any instrumentality or agency thereof having
jurisdiction over the conduct of their respective businesses or the ownership of
their respective Property except for any failure to comply with any of the
foregoing which could not reasonably be expected to have a Material Adverse
Effect.
5.13 Ownership of
Properties. On the date of this Agreement, SFNL and its
Subsidiaries will have good title, free of all Liens other than Permitted Liens,
to all of the Property and assets reflected in SFNL’s most recent consolidated
financial statements provided to the Agent as owned by SFNL and its
Subsidiaries.
5.14 Intellectual Property;
Licenses. Each of SFNL and its Subsidiaries possesses all
proprietary rights necessary to conduct their business and operations as
heretofore conducted or as proposed to be conducted by it. All
proprietary rights registered in the name of SFNL and applications therefor
filed by SFNL are listed on Schedule 5.6. No event has occurred that
permits, or after notice or lapse of time or both would permit, the revocation
or termination of any of the foregoing, which taken in isolation or when
considered with all other such revocations or terminations could have a Material
Adverse Effect. SFNL does not have any notice or knowledge of any
facts or any past, present or threatened occurrence that could preclude or
impair SFNL’s ability to retain or obtain any authorization necessary for the
operation of its business.
5.15 Environmental
Matters. Except to the extent that any inaccuracy in any of
the representations set forth in this Section 5.15, individually or in the
aggregate with any other inaccuracy under the respective representations set
forth in this Section 5.15, would not reasonably be expected to have a Material
Adverse Effect with respect to SFNL, each of SFNL and each of its Subsidiaries
is in compliance with all Environmental Laws applicable to the properties,
assets or businesses of SFNL and its Subsidiaries, and possesses and complies
with and has possessed and complied with all Environmental Permits required
under such laws. None of SFNL and its Subsidiaries has received any
Environmental Claim with respect to their respective properties, assets or
businesses, and to the knowledge of SFNL and its Subsidiaries there are no
threatened Environmental Claims or any Environmental Claims pending or
threatened against any entity for
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(e) which
SFNL or any of its Subsidiaries may be responsible. None of SFNL and
its Subsidiaries has assumed, contractually or by operation of law, any known
liabilities or obligations under any Environmental Laws. To the knowledge of
SFNL, there are no present or past events, conditions, circumstances, practices,
plans or legal requirements that would reasonably be expected to (a) result in
liability to SFNL or any of its Subsidiaries under Environmental Laws, or (b)
prevent, or reasonably be expected to increase the burden on, SFNL or any of its
Subsidiaries in complying with Environmental Laws or in obtaining, renewing, or
complying with all Environmental Permits required to be obtained by SFNL and its
Subsidiaries under such laws. To the knowledge of SFNL, there have
been no Hazardous Materials or other conditions at or from any property owned,
operated or otherwise used by SFNL or any of its Subsidiaries now or, to the
best knowledge of SFNL, in the past that would reasonably be expected to give
rise to liability of SFNL or any of its Subsidiaries under any Environmental
Law. SFNL has provided to Lender all Environmental Reports with
respect to the properties, assets or businesses of SFNL and its Subsidiaries in
the possession or control of SFNL or any of its Subsidiaries. For
purposes of this Agreement, the following terms shall have the following
meanings:
5.16 Investment Company
Act. Neither SFNL nor any Subsidiary is an investment company
or a company controlled by an investment company, within the meaning of the
Investment Company Act of 1940, as amended.
5.17 Public Utility Holding
Company Act. Neither SFNL nor any Subsidiary is a holding
company or a subsidiary company of a holding company, or an affiliate of a
holding company or of a subsidiary company of a holding company, within the
meaning of the Public Utility Holding Company Act of 1935, as
amended.
5.18 Broker’s or Finder’s
Commissions. No broker’s or finder’s or placement fee or
commission will be payable to any broker or agent engaged by SFNL or any of
their officers, directors or agents with respect to the issue of the Notes, or
the transactions contemplated by this Agreement. SFNL agrees to
indemnify the Holders and hold them harmless from and against any claim, demand
or liability for broker’s or finder’s or placement fees or similar commissions,
whether or not payable by SFNL, alleged to have been incurred in connection with
such transactions, other than any broker’s or finder’s fees payable to Persons
engaged by the Holders without the knowledge of SFNL.
ARTICLE
VI - COVENANTS
During
the term of this Agreement and for so long as any Notes are outstanding, unless
the Lender shall otherwise consent in writing:
6.1 Financial
Reporting. SFNL will maintain, for itself and each Subsidiary,
a system of accounting established and administered in accordance with generally
accepted accounting principles, and furnish to Lender:
(a) Within
90 days after the close of each of its fiscal years, an unqualified (except for
qualifications relating to changes in accounting principles or practices
reflecting changes in generally accepted accounting principles and required or
approved by SFNL's independent certified public
accountants) audit report certified by independent certified public accountants
acceptable to Lender, prepared in accordance with GAAP on a consolidated and
consolidating basis (consolidating statements need not be certified by such
accountants) for itself and its Subsidiaries, including balance sheets as of the
end of such period, related profit and loss and reconciliation of surplus
statements, and a statement of cash flows, accompanied by (a) any management
letter prepared by said accountants.
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(b) Within
45 days after the close of the first three quarterly periods of each of its
fiscal years, for itself and its Subsidiaries, consolidated and consolidating
unaudited balance sheets as at the close of each such period and consolidated
and consolidating profit and loss and reconciliation of surplus statements and a
statement of cash flows for the period from the beginning of such fiscal year to
the end of such quarter, all certified by its chief financial
officer.
(c) As
soon as possible and in any event within 10 days after SFNL knows that any
Reportable Event has occurred with respect to any Plan, a statement, signed by
the chief financial officer of SFNL, describing said Reportable Event and the
action which SFNL proposes to take with respect thereto.
(d) Promptly
upon the furnishing thereof to the shareholders of SFNL, copies of all financial
statements, reports and proxy statements so furnished.
(e) Promptly
upon the filing thereof, copies of all registration statements and annual,
quarterly, monthly or other regular reports which SFNL or any of its
Subsidiaries files with the Securities and Exchange Commission.
(f) Such
other information (including non-financial information) as the Lender or any
Lender may from time to time reasonably request.
6.2 Use of
Proceeds. SFNL may use a minimum of $250,000 in Loan proceeds
to consummate the Acquisition. In the event SFNL does not consummate
this acquisition the Lender will exercise its discretion to allow for the use of
these proceeds for operations and expansion of business
subsidiaries.
6.3 Notice of
Default. SFNL will, and will cause each Subsidiary to, give
prompt notice in writing to Lender of the occurrence of any Default or Unmatured
Default and of any other development, financial or otherwise, which could
reasonably be expected to have a Material Adverse Effect.
6.4 Conduct of
Business. SFNL will, and will cause each Subsidiary to, carry
on and conduct its business in substantially the same manner and in
substantially the same fields of enterprise as it is presently conducted and do
all things necessary to remain duly incorporated or organized, validly existing
and in good standing in its jurisdiction of incorporation or organization and
maintain all requisite authority to conduct its business in each jurisdiction in
which its business is conducted.
6.5 Taxes. SFNL
will, and will cause each Subsidiary to, timely file complete and correct United
States federal and applicable foreign, state and local tax returns required by
law and pay when due all taxes, assessments and governmental charges and levies
upon it or its income, profits or Property, except those which are being
contested in good faith by appropriate proceedings and with respect
to which adequate reserves have been set aside in accordance with
GAAP. It is understood by Lender that SFNL has not filed tax returns
for the years of 2005 and 2006, but is in the process of doing so.
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6.6 Insurance. SFNL
will, and will cause each Subsidiary to, maintain with financially sound and
reputable insurance companies insurance on all their Property in such amounts
and covering such risks as is consistent with sound business practice, and SFNL
will furnish to any Lender upon request full information as to the insurance
carried.
6.7 Compliance with
Laws. SFNL will, and will cause each Subsidiary to, comply
with all laws, rules, regulations, orders, writs, judgments, injunctions,
decrees or awards to which it may be subject including, without limitation, all
Environmental Laws.
6.8 Maintenance of
Properties. SFNL will, and will cause each Subsidiary to, do
all things necessary to maintain, preserve, protect and keep its Property in
good repair, working order and condition, and make all necessary and proper
repairs, renewals and replacements so that its business carried on in connection
therewith may be properly conducted at all times.
6.9 Dividends. SFNL
will not, nor will it permit any Subsidiary to, declare or pay any dividends or
make any distributions on its capital stock (other than dividends payable in its
own capital stock) or redeem, repurchase or otherwise acquire or retire any of
its capital stock at any time outstanding, except that any Subsidiary may
declare and pay dividends or make distributions to SFNL.
6.10 Indebtedness. SFNL
will not, nor will it permit any Subsidiary to, create, incur or suffer to exist
any Material Indebtedness, except:
(a) The
Loans; or
(b) Indebtedness
existing on the date hereof and described in Schedule 6.10; or
6.11 Merger. SFNL
will not, nor will it permit any Subsidiary to, merge or consolidate with or
into any other Person, except that a Subsidiary may merge into
SFNL.
6.12 Sale of
Assets. SFNL will not, nor will it permit any Subsidiary to,
lease, sell or otherwise dispose of its Property to any other Person,
except:
(a) Sales
of inventory in the ordinary course of business;
(b) Leases,
sales or other dispositions of its Property that, together with all other
Property of SFNL and its Subsidiaries previously leased, sold or disposed of
(other than inventory in the ordinary course of business) as permitted by this
Section during the twelve-month period ending with the month in which any such
lease, sale or other disposition occurs, do not constitute a Substantial Portion
of the Property of SFNL and its Subsidiaries;
(c) Any
transfer of an interest in accounts or notes receivable on a limited recourse
basis, provided that
such transfer qualifies as a sale under GAAP and that the amount of such
financing does not exceed $15,000 at any one time outstanding.
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6.13 Investments and
Acquisitions. SFNL will not, nor will it permit any Subsidiary
to, make or suffer to exist any Investments (including without limitation, loans
and advances to, and other Investments in, Subsidiaries), or commitments
therefor, or to create any Subsidiary or to become or remain a partner in any
partnership or joint venture, or to make any acquisition of any Person,
except:
(a) Cash
Equivalent Investments;
(b) Existing
Investments in Subsidiaries and other Investments in existence on the date
hereof and described in Schedule 6.13; and
(c) The
Acquisition.
6.14 Liens. SFNL
will not, nor will it permit any Subsidiary to, create, incur, or suffer to
exist any Lien in, of or on the Property of SFNL or any of its Subsidiaries,
except:
(a) Liens
for taxes, assessments or governmental charges or levies on its Property if the
same shall not at the time be delinquent or thereafter can be paid without
penalty, or are being contested in good faith and by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have been set aside on
its books;
(b) Liens
imposed by law, such as carriers’, warehousemen’s and mechanics’ liens and other
similar liens arising in the ordinary course of business which secure payment of
obligations not more than 60 days past due or which are being contested in good
faith by appropriate proceedings and for which adequate reserves shall have been
set aside on its books;
(c) Liens
arising out of pledges or deposits under worker’s compensation laws,
unemployment insurance, old age pensions, or other social security or retirement
benefits, or similar legislation;
(d) Utility
easements, building restrictions and such other encumbrances or charges against
real property as are of a nature generally existing with respect to properties
of a similar character and which do not in any material way affect the
marketability of the same or interfere with the use thereof in the business of
SFNL or its Subsidiaries;
(e) Liens
existing on the date hereof and described in Schedule 6.14;
(f) Liens
in favor of Lender, granted pursuant to the Security Agreement; and
ARTICLE
VII – TRANSFERS
7.1 Restricted
Securities. Lender acknowledges that the Notes and Securities
will not be registered under the Securities Act and may be resold only if
registered pursuant to the provisions of the Securities Act or if an exemption
from registration is available, and that SFNL is not required to register the
Notes as the case may be.
17
7.2 Legends; Lender’
Representations. Lender hereby represents and warrants to SFNL
that it is an “accredited investor” within the meaning of Rule 501 (a) under the
Securities Act and is acquiring the Notes and Securities for investment for its
own account, with no present intention of dividing its participation with others
or reselling or otherwise distributing the same in violation of the Securities
Act or any applicable state securities laws. SFNL may place an
appropriate legend on the Notes and Securities owned by Lender concerning the
restrictions set forth in this Article VII. Upon the assignment or
transfer by Lender or any of its successors or assignees of all or any part of
the Notes and Securities, the term “Holder” as used herein shall thereafter
mean, to the extent thereof, the then holder or holders of such Notes or
Securities, or portion thereof.
7.3 Transfer of Notes and
Securities. Subject to Section 7.2 hereof, a holder of a Note
or Securities may transfer such Note or Securities to a new holder, or may
exchange such Note or Securities for Notes of different denominations, by
surrendering such Note or Securities to SFNL duly endorsed for transfer or
accompanied by a duly executed instrument of transfer naming the new holder (or
the current holder if submitted for exchange only), together with written
instructions for the issuance of one or more new Notes or Securities specifying
the respective principal amounts of each new Note or Securities and the name of
each new holder and each address therefor. SFNL shall simultaneously
deliver to such holder or its designee such new Notes or Securities and shall
xxxx the surrendered Notes or Securities as canceled. In lieu of the
foregoing procedures, a holder may assign a Note (in whole but not in part) to a
new holder by sending written notice to SFNL of such assignment specifying the
new holder’s name and address; in such case, SFNL shall promptly acknowledge
such assignment in writing to both the old and new holder. SFNL shall
not be required to recognize any subsequent holder of a Note or Securities
unless and until SFNL has received reasonable assurance that all applicable
transfer taxes have been paid.
7.4 Replacement of Lost Notes or
Securities. Upon receipt of evidence reasonably satisfactory
to SFNL of the mutilation, destruction, loss or theft of any Notes or Securities
and the ownership thereof, SFNL shall, upon the written request of the holder of
such Notes or Securities, execute and deliver in replacement thereof new Notes
or Securities in the same form, in the same original principal amount and dated
the same date as the Notes or Securities so mutilated, destroyed, lost or
stolen; and such Notes or Securities so mutilated, destroyed, lost or stolen
shall then be deemed no longer outstanding hereunder. If the Notes or
Securities being replaced have been mutilated, they shall be surrendered to
SFNL; and if such replaced Notes or Securities have been destroyed, lost or
stolen, such holder shall furnish SFNL with an indemnity in writing to save it
harmless in respect of such replaced Note or Securities.
7.5 No Other Representations
Affected. Nothing contained in this Article IX shall limit the
full force or effect of any representation, agreement or warranty made herein or
in connection herewith to Holder.
ARTICLE
VIII– DEFAULT
8.1 Events of
Default. An Event of Default shall mean the occurrence of one
or more of the following described events:
(a) SFNL
shall default in the payment of (i) interest on the Notes within five (5) days
after its due date or (ii) principal of the Notes when due, whether at maturity,
upon notice of prepayment in accordance with Sections 3.2 or 3.3, upon any
scheduled payment date or by acceleration or otherwise;
18
(b) SFNL
shall default under any agreement under which any Indebtedness in an aggregate
principal amount of $50,000 or more is created in a manner entitling the holder
of such Indebtedness to accelerate the maturity of such
Indebtedness;
(c) any
representation or warranty herein made by any SFNL, or any certificate or
financial statement furnished pursuant to the provisions hereto shall prove to
have been false or misleading in any material respect as of the time made or
furnished or deemed made or furnished;
(d) a
default or event of default shall occur under any of the other Purchase
Documents, beyond any applicable notice or cure periods;
(e) SFNL
shall default in the performance of any other covenant, condition or provision
of this Agreement, the Notes or the other Loan Documents, and such default shall
not be remedied to Lender’s satisfaction for a period of thirty (30) days of the
earlier of (i) written notice from a Lender of such default or (ii) actual
knowledge by any SFNL of such default;
(f) a
proceeding shall have been instituted in a court having jurisdiction in the
premises seeking a decree or order for relief in respect of any SFNL in an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or for the appointment of a receiver,
liquidator, assignee, custodian, “trustee, sequestrator (or similar official) of
any SFNL or for any substantial part of its property, or for the winding-up or
liquidation of their affairs, and such proceeding shall remain undismissed or
unstayed and in effect for a period of sixty (60) days;
(g) SFNL
shall commence a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, shall consent to the entry of an
order for relief in an involuntary case under any such law, or shall consent to
the appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator (or other similar official) of any SFNL or for
any substantial part of their property, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay their debts as they
become due, or shall take any action in furtherance of any of the
foregoing;
(h) both
the following events shall occur; (i) a Reportable Event, the occurrence of
which would have a Material Adverse Effect which could cause the imposition of a
Lien under Section 4068 of ERISA, shall have occurred with respect to any Plan
or Plans; and (ii) the aggregate amount of the then “current liability” (as
defined in Section 412(l)(7) of the Internal Revenue Code of 1986, as amended)
of all accrued benefits under such Plan or Plans exceeds the then current value
of the assets allocable to such benefits by more than $100,000 at such
time;
(i) a
final judgment which, with other undischarged final judgments against any SFNL,
exceeds an aggregate of $100,000 (excluding judgments to the extent the
applicable SFNL is fully insured or the deductible or retention limit does not
exceed $100,000 and with respect to which the insurer has assumed responsibility
in writing), shall have been entered against any SFNL if, within thirty (30)
days after the entry thereof, such judgment shall not have been discharged or
execution thereof stayed pending appeal, or if, within thirty (30) days after
the expiration of any such stay, such judgment shall not have been discharged;
and
19
(j) any
Transaction Document or Security Document shall at any time after the Closing
Date cease for any reason to be in full force and effect or shall cease to
create perfected security interests in favor of Lender in the collateral subject
or purported to be subject thereto, subject to no other Liens other than
Permitted Liens, or such collateral shall have been transferred to any Person
without the prior written consent of the holders of the majority in principal
amount of the outstanding Notes.
8.2 Consequences of Event of
Default.
(a) Bankruptcy. If
an Event of Default specified in paragraphs (g) or (h) of Section 8.1 hereof
shall occur, the unpaid balance of the Notes and interest accrued thereon and
all other liabilities of SFNL to the holders thereof hereunder and thereunder
shall be immediately due and payable, without presentment, demand, protest or
(except as expressly required hereby) notice of any kind, all of which are
hereby expressly waived.
(b) Other
Defaults. If any other Event of Default shall occur, Lender
may at its option, by written notice to SFNL, declare the entire unpaid balance
of the Notes, and interest accrued thereon and all other liabilities of SFNL
hereunder and thereunder to be forthwith due and payable, and the same shall
thereupon become immediately due and payable, without presentment, demand,
protest or (except as expressly required hereby) notice of any kind, all of
which are hereby expressly waived; provided, that in the case of a default
specified in clause (ii) of paragraph (a) of Section 8.1 hereof shall occur, any
holder of a Note may declare the entire unpaid balance of such Note (but only
such Note) and other amounts due hereunder and thereunder with regard to such
Note to become immediately due and payable.
(c) Penalty
Interest. Following the occurrence and during the continuance
of any Event of Default, the holders of the Notes shall be entitled to receive,
to the extent permitted by applicable law, interest on the outstanding principal
of, and overdue interest, if any, on, the Notes at a rate per annum equal to the
highest rate permitted by applicable law.
(d) Board
Representation. Following any Event of Default, SFNL shall
take all corporate action necessary to appoint three persons designated by
Lender to SFNL’s board of directors.
8.3 Security. Payments
of principal of, and premium, if any, and interest on, the Notes and all other
obligations of the SFNL under this Agreement or the Notes are secured pursuant
to the terms of the Security Agreement.
ARTICLE
IX– GENERAL PROVISIONS
9.1 Survival of
Representations. All representations and warranties of SFNL
contained in this Agreement shall survive the making of the Loans herein
contemplated.
9.2 Governmental
Regulation. Anything contained in this Agreement to the
contrary notwithstanding, no Lender shall be obligated to extend credit to SFNL
in violation of any limitation or
prohibition provided by any applicable statute or regulation.
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9.3 Headings. Section
headings in the Loan Documents are for convenience of reference only, and shall
not govern the interpretation of any of the provisions of the Loan
Documents.
9.4 Entire
Agreement. The Loan Documents embody the entire agreement and
understanding among SFNL and Lender and supersede all prior agreements and
understandings among SFNL and Lender relating to the subject matter
thereof.
9.5 Amendment;
Waiver. No delay or omission of Lender to exercise any right
under the Loan Documents shall impair such right or be construed to be a waiver
of any Default or an acquiescence therein, and the making of a Loan
notwithstanding the existence of a Default or the inability of SFNL to satisfy
the conditions precedent to such Loan shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall
not preclude other or further exercise thereof or the exercise of any other
right, and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by Lender required pursuant to Section 9.2, and then only to the extent
in such writing specifically set forth. All remedies contained in the
Loan Documents or by law afforded shall be cumulative and all shall be available
to the Lender and Lender until the Obligations have been paid in
full.
9.6 Benefits of this
Agreement. This Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and assigns.
9.7 Severability. Any
provision in any Loan Document that is held to be inoperative, unenforceable, or
invalid in any jurisdiction shall, as to that jurisdiction, be inoperative,
unenforceable, or invalid without affecting the remaining provisions in that
jurisdiction or the operation, enforceability, or validity of that provision in
any other jurisdiction, and to this end the provisions of all Loan Documents are
declared to be severable.
9.8 Nonliability of
Lender. The relationship between SFNL on the one hand and
Lender on the other hand shall be solely that of borrower and
lender. Lender shall have no fiduciary responsibilities to
SFNL. Lender undertakes no responsibility to SFNL to review or inform
SFNL of any matter in connection with any phase of SFNL's
business or operations. SFNL agrees that Lender shall not have
liability to SFNL (whether sounding in tort, contract or otherwise) for losses
suffered by SFNL in connection with, arising out of, or in any way related to,
the transactions contemplated and the relationship established by the Loan
Documents, or any act, omission or event occurring in connection therewith,
unless it is determined in a final non-appealable judgment by a court of
competent jurisdiction that such losses resulted from the gross negligence or
willful misconduct of the party from which recovery is sought. Lender
shall not have any liability with respect to, and SFNL hereby waives, releases
and agrees not to xxx for, any special, indirect or consequential damages
suffered by SFNL in connection with, arising out of, or in any way related to
the Loan Documents or the transactions contemplated thereby.
9.9 Confidentiality. Lender
agrees to hold any confidential information which it may receive from SFNL
pursuant to this Agreement in confidence, except for disclosure (a) to other
Lender
and their respective Affiliates, (b) to legal counsel, accountants, and other
professional advisors to such Lender or to a Transferee, (c) to regulatory
officials, (d) to any Person as requested pursuant to or as required by law,
regulation, or legal process, (e) to any Person in connection with any legal
proceeding to which such Lender is a party, (f) to such Lender’s direct or
indirect contractual counterparties in swap agreements or to legal counsel,
accountants and other professional advisors to such counterparties.
9.10 Notices. All
notices, requests and other communications to any party hereunder shall be in
writing (including electronic transmission, facsimile transmission or similar
writing) and shall be given to such party at (a) at its address set forth below,
or (b) such other address or facsimile number as such party may hereafter
specify. Each such notice, request or other communication shall be
effective (i) if given by facsimile transmission, when transmitted to the
facsimile number specified in this Section and confirmation of receipt is
received, (ii) if given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as aforesaid, or (iii)
if given by any other means, when delivered (or, in the case of electronic
transmission, received) at the address specified in this Section.
If to
Lender,
to: Commercial
Holding AG
0000 Xxxxxxxx Xx.
Xxxxxxxxx, XX 00000-0000
Att: Xxxxx X. Xxxxxx, Managing
Director
000.000.0000/Fax
000.000.0000
If to
SFNL,
to Secured
Financial Network, Inc.
0000 XX 00xx Xxx,
xxxxx 000
Xxxxxxx Xxxxx, Xx 00000
Att: Xxxxxxx X. Xxxxxxx,
President/CEO
000.000.0000/Fax
000.000.0000
9.11 CHOICE OF
LAW. THE LOAN DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF NEVADA, WITHOUT REGARD TO ITS CHOICE OF LAWS
PROVISIONS.
9.12 VENUE. THE
EXCLUSIVE JURISDICTION FOR ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING
TO ANY LOAN DOCUMENTS SHALL BE IN THE STATE AND FEDERAL COURTS LOCATED IN
BROWARD COUNTY, FLORIDA AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL
CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE
AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT
OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
9.13 WAIVER OF JURY
TRIAL. SFNL AND LENDER HEREBY WAIVE TRIAL BY JURY IN ANY
JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO,
OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED
THEREUNDER.
21
9.14 Counterparts. This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by SFNL, the Lender and
Lender and each party has notified the Lender by facsimile transmission or
telephone that it has taken such action.
IN
WITNESS WHEREOF, SFNL and Lender have executed this Agreement as of the date
first above written.
COMMERCIAL HOLDING
AG
By:
/s/ Xxxxx
Xxxxxx
Title:
Xxxxx Xxxxxx - Managing Director
Attention: Xxxxx
Xxxxxx
SECURED FINANICAL NETWORK,
INC.
By:
/s/ Xxxxxxx X.
Xxxxxxx
Title:
President/CEO
Attention: Xxxxxxx
X. Xxxxxxx
22
SCHEDULES
Schedule
5.0
Secured
Financial Network, Inc. is incorporated in the State of Nevada
Virtual
payment solutions, Inc. is incorporated in the State of Florida
Schedule
5.1
In the
4th
quarter 2007 the expects to incur a $400,000 impairment on its ENVOII License as
well as a $75,000 reserve for bad debt for its receivable owed by Goldmill
Productions, LLC.
Schedule
5.2
Convertible
Note dated September 26, 2006 and October 31, 2006 between Secured Financial
Network, Inc. and The Nutmeg Group, LLC and Note dated June 11, 2007 between
Secured Financial
Network, Inc. and KFG financial Services.
Schedule
5.3
SEE
PRINTED SCHEDULE ATTACHED 2 PAGES
Schedule
5.4
The
Company is currently delinquent in payroll tax obligations incurred in 2005, in
the amount of $51,122.33
in taxes and 21,703.29 in penalties and interest. The company is
negotiating settlement of these taxes.
Schedule
5.5
Licenses
and Domain Names
ENVOII
License
Domain
Names:
xxx.xxxx.xxx
xxx.xxxxxxxxxxxxxxxxxxxxxxx.xxx
xxx.xxxxxxxxxxxxxxxxxxxxxxx.xxx
xxx.xxxxxxxxx.xxx
xxx.xxxxxxxxxxxx.xxx
Schedule
5.6
Current
Loan Advances of $172,700 as of the “effective date”.
23