REVOLVING LOAN AND SECURITY AGREEMENT
THIS REVOLVING LOAN AND SECURITY AGREEMENT (this "AGREEMENT")
made this 6th day of March, 2006 by and between RAVINIA FUNDING, LLC, an
Illinois limited liability company ("LENDER") and Direct Response Financial
Services, Inc., d/b/a Direct2Own, a Colorado corporation ("BORROWER").
W I T N E S S E T H
WHEREAS, Borrower is in the business of, among other things,
financing ("DEBTOR FINANCING") the purchase of computers, televisions and other
electronic products through its Direct2Own division. The Borrower generally
receives an order and accepts a down payment and provides financing for the
remainder of the purchase price.
WHEREAS, the parties wish to provide for the terms and
conditions upon which Loans may be made for the account of Borrower to help
finance Borrower's Debtor Financing activities;
NOW, THEREFORE, in consideration of any Loans made for the
account of Borrower, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by Borrower, the parties agree
as follows:
1. DEFINITIONS.
"ACCOUNT," means collectively (a) any right to payment of a
monetary obligation in connection with Debtor Financing, (b) without
duplication, any "account" (as defined in the UCC), any accounts receivable
(whether in the form of payments for goods sold, rents, license fees or
otherwise), any "payment intangibles" (as that term is defined in the UCC) and
all other rights to payment and/or reimbursement of every kind and description,
whether or not earned by performance, (c) all accounts, "general intangibles"
(as that term is defined in the UCC), rights, remedies, guarantees, "supporting
obligations" (as that term is defined in the UCC), "letter-of-credit rights" (as
that term is defined in the UCC) and security interests in respect of the
foregoing, all rights of enforcement and collection, all books and records
evidencing or related to the foregoing, and all rights under the Financing
Documents in respect of the foregoing, (d) all information and data compiled or
derived by any Borrower or to which any Borrower is entitled in respect of or
related to the foregoing, and (e) all Proceeds of any of the foregoing.
"ACCOUNT DEBTOR" shall have the meaning assigned to such term
in the UCC.
"AFFILIATE" shall mean any Person directly or indirectly
controlling, controlled by or under common control with another Person.
"AGREEMENT" shall mean this Revolving Loan and Security
Agreement, any exhibits or schedules hereto, any concurrent or subsequent rider
hereto and any extensions, supplements, amendments or modifications hereto.
"APPROVED GOODS" means goods sold by Borrower in the ordinary
course of its business, in compliance with all Laws, and consistent with the
type of goods sold by Borrower in its business operations as of the "Closing
Date" which shall be the date this Agreement is fully executed or as
subsequently approved by Lender.
"CHATTEL PAPER" shall have the meaning assigned to such term
in the UCC.
"COLLATERAL" shall mean all of the property of Borrower
described in PARAGRAPH 5 hereof, together with all other real or personal
property of Borrower now or hereafter pledged to Lender, if any, to secure
repayment of any of the Liabilities. Except as provided in XXXXXXXXX 0,
Xxxxxxxxxx shall not mean any existing customer contracts, or Debtor Financing,
which exists and is the property of the Borrower prior to the date this
Agreement is executed.
"DEPOSIT ACCOUNT" shall have the meaning specified in
PARAGRAPH 8 hereof.
"DEPOSIT ACCOUNTS" shall have the meaning assigned to such
term in the UCC.
"DOCUMENTS" shall have the meaning assigned to such term in
the UCC.
"ELECTRONIC CHATTEL PAPER" shall have the meaning assigned to
such term in the UCC.
"ELIGIBLE ACCOUNTS" shall mean those Accounts of Borrower for
Approved Goods which are listed on EXHIBIT A hereto plus Accounts of Borrower
for Approved Goods which arise on or after the date of this Agreement for which
Borrower has received good funds for the down payment related thereto, has
received a fully completed purchase order, Borrower has paid the vendor for the
underlying consumer electronic product and the subject consumer electronic
product related to the Debtor Financing has been shipped. For purposes hereof,
documentation to establish Eligible Accounts shall be in the form of confirmed
receipt of down payment and purchase order documents in the form of executed
recurring payment authorization and invoices to Borrower customers for the
Debtor Financing. This shall further include proof of payment to the underlying
vendor of the consumer electronic product together with proof of shipping to the
Borrower customer, the subject of the Debtor Financing. Notwithstanding the
aforesaid, Lender shall make loans to Borrower in accordance with paragraph 2
below, at such time as Borrower receives the down payment and a fully completed
purchase order subject to the condition subsequent that Borrower provide Lender
with proof of payment to the vendor and shipping of the consumer electronic
product to the customer as specified in paragraph 2, below. Without limiting
Lender's discretion, unless otherwise agreed by Lender, the following Accounts
of Borrower are not Eligible Accounts:
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(i) Any Account where the first installment is not paid within
five (5) business days of the payment due date, unless and until the
Account Debtor cures any such default and has made two (2) additional
consecutive payments when due;
(ii) Accounts with respect to goods or products that are not
Approved Goods;
(iii) Accounts with respect to which prior loan advances have
been made and for which both a proof of shipment and a proof of payment
has not subsequently been provided;
(iv) Accounts with respect to which the Account Debtor is not
a resident of the continental United States ("Foreign Accounts");
(v) Accounts in dispute or with respect to which the Account
Debtor has asserted or may assert a counterclaim or has asserted or may
assert a right of setoff;
(vi) Accounts with respect to which the Account Debtor is
deceased;
(vii) Accounts with respect to which Lender does not have a
first and valid fully perfected security interest;
(viii) Accounts with respect to which the Account Debtor is
the subject of bankruptcy or a similar insolvency proceeding or has
made an assignment for the benefit of creditors or whose assets have
been conveyed to a receiver or trustee;
(ix) Accounts with respect to which the Account Debtor's
obligation to pay the Account is conditional upon the Account Debtor's
approval or is otherwise subject to any repurchase obligation or return
right, as with sales made on a xxxx-and-hold, guaranteed sale,
sale-and-return, sale on approval or consignment basis;
(x) Accounts which arise out of sales (a) not made in the
ordinary course of Borrower's business, (b) which are not valid or
legally enforceable, or (c) which do not meet the Account Debtor's
specifications (if any);
(xi) Accounts with respect to which the Account Debtor has
refused to accept or returned any portion of the Approved Goods the
financing of which gave rise to such Accounts; and
(xii) Accounts with respect to which any document or agreement
executed or delivered in connection therewith, or any procedure used in
connection with any such document or agreement, fails in any material
respect to comply with the requirements of applicable law.
"EVENT OF DEFAULT" shall have the meaning specified in
PARAGRAPH 12 hereof.
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"GENERAL INTANGIBLES" shall have the meaning assigned to such
term in the UCC.
"INDEMNIFIED PARTY" shall have the meaning specified in
PARAGRAPH 14 hereof.
"INSTRUMENTS" shall have the meaning assigned to such term in
the UCC.
"IRR" shall mean a cash on cash return, not including the
warrants.
"LETTER-OF-CREDIT RIGHT" shall have the meaning assigned to
such term in the UCC.
"LIABILITIES" shall mean any and all obligations, liabilities
and indebtedness of Borrower to Lender or to any Affiliate of Lender of any and
every kind and nature, howsoever created, arising or evidenced and howsoever
owned, held or acquired, whether now or hereafter existing, whether now due or
to become due, whether primary, secondary, direct, indirect, absolute,
contingent or otherwise (including without limitation obligations of
performance), whether several, joint or joint and several, and whether arising
or existing under written or oral agreement or by operation of law, including
without limitation all obligations, liabilities and indebtedness of Borrower
under this Agreement.
"LOAN" or "LOANS" shall mean the Revolving Loans made by
Lender to Borrower pursuant to PARAGRAPH 2 hereof.
"MAXIMUM REVOLVING LOAN FACILITY" shall mean Five Million
Dollars ($5,000,000).
"MINIMUM COVERAGE RATIO" means 140% and shall be calculated by
dividing one hundred percent (100%) of the then outstanding Revolving Loans by
approximately 70% of the unpaid principal balance of Eligible Accounts, each
measured as of the time of such determination.
"OTHER AGREEMENTS" shall mean all agreements, instruments and
documents, including without limitation guaranties, pledges, powers of attorney,
consents, assignments, security agreements, intercreditor agreements, financing
statements and all other writings heretofore, now or from time to time hereafter
executed by or on behalf of Borrower or any other Person and delivered to Lender
or to any Affiliate of Lender in connection with the Liabilities or the
transactions contemplated hereby.
"OVER ADVANCE" shall have the meaning specified in PARAGRAPH
2(A).
"PERMITTED LIENS" shall mean (i) statutory liens of landlords,
carriers, warehousemen, mechanics, materialmen or suppliers incurred in the
ordinary course of business and securing amounts not yet due, (ii) liens or
security interests in favor of Lender, and (iii) the liens set forth on EXHIBIT
E
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"PERSON" shall mean any individual, sole proprietorship,
partnership, joint venture, trust, unincorporated organization, association,
corporation, institution, entity, party or foreign or United States government
(whether federal, state, county, city, municipal or otherwise), including
without limitation any instrumentality, division, agency, body or department
thereof.
"PROCEEDS" shall have the meaning assigned to such term in the
UCC.
"REVOLVING NOTE" shall mean the Revolving Note executed by
Borrower in favor of Lender pursuant to PARAGRAPH 2(A) hereof, and any
extensions, supplements, amendments or modifications thereto.
"REVOLVING LOAN AVAILABILITY" shall mean fifty-five percent
(55%) of the net amount outstanding under Eligible Accounts, after application
of the down payment and other prepaid fees and expenses at the time the
Revolving Loan against such Eligible Account is being made.
"REVOLVING LOANS" shall have the meaning specified in
PARAGRAPH 2(A) hereof.
"SEC" means the United States Securities and Exchange
Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations of the SEC thereunder, all as in effect at the
time.
"SUBSIDIARY" shall mean any corporation of which more than
fifty percent (50%) of the outstanding capital stock having ordinary voting
power to elect a majority of the board of directors of such corporation
(irrespective of whether at the time stock of any other class of such
corporation shall have or might have voting power by reason of the happening of
any contingency) is at the time, directly or indirectly, owned by Borrower or by
any partnership or joint venture of which more than fifty percent (50%) of the
outstanding equity interests are at the time, directly or indirectly, owned by
Borrower.
"TANGIBLE CHATTEL PAPER" shall have the meaning assigned to
such term in the UCC.
"TERMINATION DATE" shall mean the earliest to occur of the
following: (i) December 1, 2009 and (ii) the date the Liabilities are
accelerated pursuant to PARAGRAPH 14 hereof.
"UCC" shall mean the Uniform Commercial Code as in effect from
time to time in the state of Illinois.
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2. LOANS.
(a) Subject to the terms and conditions of this Agreement and
the Other Agreements, prior to the Termination Date, Lender may, in its sole
discretion, make revolving loans (the "REVOLVING LOANS") to Borrower as Borrower
shall from time to time request. The aggregate unpaid principal of all Revolving
Loans outstanding at any one time shall not exceed the lesser of (A) the Maximum
Revolving Loan Facility and (B) Revolving Loan Availability at such time. If at
any time the outstanding principal balance of the Revolving Loans exceeds the
Revolving Loan Availability or the Minimum Coverage Ratios (an "OVER ADVANCE"),
Borrower shall immediately, and without the necessity of a demand by Lender, pay
to Lender such amount as may be necessary to eliminate such excess or in the
alternative provide evidence of additional Eligible Accounts to eliminate such
excess. The Revolving Loans shall, in Lender's sole discretion, be evidenced by
one or more promissory notes in the form of EXHIBIT B. However, if the Revolving
Loans are not so evidenced, such Loans may be evidenced solely by entries upon
the books and records maintained by Lender. The Revolving Loans shall be payable
in full on the Termination Date.
(b) Proceeds from the collections of Accounts shall be applied
to pay down the Loans on a monthly basis pursuant to the amortization schedule
attached hereto as EXHIBIT H, which amortization table will be amended in
connection with each advance hereunder. Borrower may request a Loan advance
weekly in accordance with Paragraph 4(a), below, with repayment on a monthly
basis as previously stated in this paragraph. Prior to an Event of Default, all
proceeds shall be applied as follows: first to pay any fees, expenses,
reimbursements due to Lender, second to pay any accrued but unpaid interest,
third to repay the principal payable in accordance with the amortization
schedule then in effect and the remainder of the proceeds in the Deposit Account
can be applied and/or distributed to or at the direction of Borrower. Upon the
occurrence and during an Event of Default, all proceeds shall be applied to the
Liabilities until the Liabilities are paid in full or until the Event of Default
is cured.
(c) Borrower shall have the right to prepay the Loans subject
to receipt of at least a twenty percent (20%) IRR.
(d) As a condition subsequent of receiving Revolving Loans,
Borrower shall provide Lender satisfactory evidence or proof of Borrower's
payment to any vendor providing consumer electronic products to consumers with
Debtor Financing and proof of shipping to such consumer not later than ten (10)
business days after a Revolving Loan has been made for an Eligible Account.
3. FEES AND CHARGES. Borrower shall pay to Lender the
following:
(a) Interest shall accrue on the outstanding principal balance
of the Loans weekly in arrears on the first day of each month beginning on April
1, 2006, at the per annum rate of twenty-two percent (22%). Following the
occurrence of an Event of Default, Borrower shall pay to Lender interest on the
outstanding principal balance of the Loans at the per annum rate of twenty-four
percent (24%). Interest shall be computed on the basis of a year of three
hundred sixty (360) days for the actual number of days elapsed.
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(b) Quarterly, within fifteen (15) days after the end of each
calendar quarter commencing June 30, 2006, Borrower shall issue Lender warrants
to purchase common stock of Borrower in the form of EXHIBIT F in an amount equal
to 5% of the principal amount of the Loans made during such calendar quarter
based on the average closing stock price for the prior ninety (90) day quarter,
subject to reduction upon an Event of Default.
4. CONDITIONS OF ADVANCES. Without limiting Lender's
discretion to make advances hereunder, the making of any advance provided for in
this Agreement shall be conditioned upon the following:
(a) Lender shall have received, by at least [TWELVE O'CLOCK
NOON (12:00 NOON)] Chicago time (CST) on each Monday, a request from an officer
of Borrower (or any Person authorized by Borrower pursuant to a written list
provided to Lender), for an advance on Friday in a specific amount by email or
telecopy, receipt acknowledged. It is anticipated that advances will be
requested weekly on each Monday for funding on Friday. In addition, Lender shall
also have received all of the documents and reports required to have been
delivered by Borrower pursuant to PARAGRAPH 9 hereof;
(b) No Event of Default shall have occurred and be continuing
or be caused by the making of such advance;
(c) All of the representations and warranties contained in
this Agreement and the Other Agreements shall be true and correct as if made on
the date the request for an advance is made; and
(d) Lender shall have received, in form and substance
satisfactory to Lender, all customer contracts related to the Accounts against
which such advance is being requested, evidence of good funds related to the
down payments thereon and a fully executed purchase order related thereto and
such other security agreements, financing statements and other documents which
are provided for hereunder, or which Lender may at any time request.
5. GRANT OF SECURITY INTEREST TO LENDER. As security for the
payment or other satisfaction of all Liabilities, Borrower hereby assigns to
Lender and grants to Lender a continuing security interest in the following
property of Borrower, whether now or hereafter owned, existing, acquired or
arising and wherever now or hereafter located (the "COLLATERAL"): (a) all
Accounts arising from Debtor Financing of Approved Goods listed on EXHIBIT A and
all Accounts arising from Debtor Financing of Approved Goods made from the date
this Agreement is fully executed; (b) all Chattel Paper, Instruments and
Documents related to the Accounts, goodwill, copyrights, registrations,
licenses, software, franchises, customer lists, tax refund claims, claims
against carriers and shippers, guarantee claims, contracts rights, payment
intangibles, security interests, security deposits and any rights to
indemnification); (c) all additions and accessions to, substitutions for, and
replacements, products and Proceeds of the foregoing property, including without
limitation proceeds of all insurance policies insuring the foregoing property,
and all of Borrower's books and records relating to any of the foregoing and to
Borrower's business.
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6. PRESERVATION OF COLLATERAL AND PERFECTION OF SECURITY
INTERESTS THEREIN.
(a) Borrower shall, at Lender's request, at any time and from
time to time, authenticate, execute and deliver to Lender such financing
statements, documents and other agreements and instruments (and pay the cost of
filing or recording the same in all public offices deemed necessary or desirable
by Lender) and do such other acts and things or cause third parties to do such
other acts and things as Lender may deem necessary or desirable in order to
establish and maintain a valid, attached and perfected security interest in the
Collateral in favor of Lender (free and clear of all other liens, claims and
rights of third parties whatsoever, whether voluntarily or involuntarily
created, except Permitted Liens) to secure payment of the Liabilities, and in
order to facilitate the collection of the Collateral. Borrower irrevocably
hereby makes, constitutes and appoints Lender (and all Persons designated by
Lender for that purpose) as Borrower's true and lawful attorney and
agent-in-fact to execute such financing statements, documents and other
agreements and instruments and do such other acts and things as may be necessary
to preserve and perfect Lender's security interest in the Collateral.
(b) Immediately upon Borrower's receipt of any portion of the
Collateral evidenced by an Agreement, Instrument or Document including, without
limitation, any Tangible Chattel Paper, Borrower shall deliver the original
thereof to Lender, at Lender's request, together with an appropriate endorsement
or other specific evidence of assignment thereof to Lender (in form and
substance acceptable to Lender). If any endorsement or assignment of any such
items shall not be made for any reason, Lender is hereby irrevocably authorized
as Borrower's attorney and agent-in-fact, to endorse or assign the same on
Borrower's behalf.
(c) To the extent Borrower obtains or maintains any Electronic
Chattel Paper, Deposit Accounts or Letter-of-Credit Rights, Borrower shall do
such acts and things or cause third parties to do such acts and things to
establish control in favor of Lender as control for such type of Collateral is
defined in the UCC.
7. COLLECTIONS.
(a) Borrower shall direct all of its Account Debtors who
obtained Debtor Financing for Approved Goods included on EXHIBIT A and all
Account Debtors who obtain Debtor Financing for Approved Goods obtained on or
after the date hereof, to make all payments on the Accounts to an account (the
"DEPOSIT ACCOUNT") established at First California Bank (the "DEPOSITORY BANK"),
Westlake Village, California branch under the account name "Direct2Own/DRFS."
Borrower will have control over said Deposit Account, subject to a Deposit
Account Control Agreement in EXHIBIT C, provided that the bank agrees to be a
party to the Deposit Account Control Agreement. Borrower agrees that all
payments deposited to such Deposit Account or otherwise received by Borrower
will be applied on account of the Liabilities in accordance and otherwise with
the terms of this Agreement. Borrower agrees to pay all fees, costs and expenses
in connection with the opening and maintaining of the Deposit Account. Upon the
occurrence and during the continuance of an Event of Default, Lender shall have
the right to notify the Depository Bank that an Event of Default has occurred
and thereafter to honor instructions of the Lender with respect to the Deposit
Account.
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(b) Lender may, at any time and from time to time, if an Event
of Default has occurred and is continuing or Lender has a reasonable basis to
believe an Event of Default will occur, whether before or after notification to
any Account Debtor and whether before or after the maturity of any of the
Liabilities, (i) enforce collection of any of Borrower's Accounts or contract
rights by suit or otherwise; (ii) exercise all of Borrower's rights and remedies
with respect to proceedings brought to collect any Accounts of Borrower; (iii)
surrender, release or exchange all or any part of any Accounts of Borrower, or
compromise or extend or renew for any period (whether or not longer than the
original period) any indebtedness thereunder; (iv) sell or assign any Account of
Borrower upon such terms, for such amount and at such time or times as Lender
deems advisable; (v) prepare, file and sign Borrower's name on any proof of
claim in bankruptcy or other similar document against any Account Debtor; and
(vi) do all other acts and things which are necessary, in Lender's sole
discretion, to fulfill Borrower's obligations under this Agreement and to allow
Lender to collect the Accounts of Borrower. In addition to any other provision
hereof, Lender may at any time, whether before (so long as Lender has a
reasonable basis to believe an Event of Default will occur) or after the
occurrence of an Event of Default, at Borrower's expense, notify any parties
obligated on any of the Accounts to make payment directly to Lender of any
amounts due or to become due thereunder.
(c) Lender, in its sole discretion, without waiving or
releasing any obligation, liability or duty of Borrower under this Agreement or
the Other Agreements or any Event of Default, may at any time or times
hereafter, but shall not be obligated to, pay, acquire or accept an assignment
of any security interest, lien, encumbrance or claim asserted by any Person in,
upon or against the Collateral. All sums paid by Lender in respect thereof and
all costs, fees and expenses, including without limitation reasonable attorney
fees, all court costs and all other charges relating thereto incurred by Lender
shall constitute Revolving Loans, payable by Borrower to Lender on demand and,
until paid, shall bear interest at the highest rate then applicable to Revolving
Loans hereunder.
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8. SCHEDULES AND REPORTS.
(a) At the end of each calendar week, upon each request for a
Loan hereunder and at such other times as may be requested by Lender from time
to time hereafter, Borrower shall deliver to Lender (i) a borrowing base
certificate certified by an authorized officer of Borrower, which certificate
includes a schedule identifying each Eligible Account together with copies of
the invoices, (with evidence of shipment attached provided such evidence is
available to Borrower) pertaining to each such Eligible Account as well as
daily, collections, cash receipts, credit and adjustment reports and all
appropriate supporting documentation; (ii) bank statements with respect to the
Deposit Account; and (iii) such additional schedules, certificates, reports and
information with respect to the Collateral and Borrower collections as Lender
may from time to time require. Lender, through its officers, employees or
agents, shall have the right, at any time and from time to time in Lender's
name, in the name of a nominee of Lender or in Borrower's name, to verify the
validity, amount or any other matter relating to any of Borrower's Accounts, by
mail, telephone, telegraph or otherwise. Borrower shall reimburse Lender, on
demand, for all costs, fees and expenses incurred by Lender in this regard. Such
weekly reports may be submitted by email or telecopy.
(b) Without limiting the generality of the foregoing, Borrower
shall deliver to Lender, at least once a month, not later than the tenth (10th)
day of each month (or more frequently when requested by Lender), a month-end
borrowing base certificate, certified by an authorized officer of Borrower which
reconciles to all month-end financial reports, an accounts receivable aging
report (aged by invoice date), and all appropriate supporting documentation.
Lender and Borrower acknowledge and agree that Debtor Financing is in the form
of customer contracts with Borrower wherein payments are made one time or two
times per month with all payments due within twelve (12) months after the Debtor
Financing is established.
(c) All schedules, certificates, reports, and assignments and
other items delivered by Borrower to Lender hereunder shall be executed by an
authorized representative of Borrower and shall be in such form and contain such
information as Lender shall specify.
9. TERMINATION.
This Agreement shall be in effect until the Termination Date.
The security interests and liens created under this Agreement and the Other
Agreements shall survive such termination until the payment of the Liabilities
has become indefeasible. At such time as Borrower has repaid all of the
Liabilities and this Agreement has terminated, Borrower and Lender shall execute
a mutual release of all obligations and liabilities one to the other.
10. REPRESENTATIONS, WARRANTIES AND COVENANTS. Borrower hereby
represents, warrants and covenants that:
(a) Borrower is duly organized and in good standing in the
State of Colorado, Borrower's organizational identification number is
2000-1071091 and Borrower is duly qualified and in good standing in all states
where the nature and extent of the business transacted by it or the ownership of
its assets makes such qualification necessary;
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(b) The office where Borrower keeps its books, records and
accounts (or copies thereof) concerning the Collateral, Borrower's principal
place of business and all of Borrower's other places of business, locations of
Collateral and post office boxes are as set forth in EXHIBIT D Borrower shall
promptly (but in no event less than ten (10) days prior thereto) advise Lender
in writing of the proposed opening of any new place of business, the closing of
any existing place of business, any change in the location of Borrower's books,
records and accounts (or copies thereof) or the opening or closing of any post
office box of Borrower; Borrower's name has always been as set forth on the
first page of this Agreement and Borrower uses no tradenames or division names
in the operation of its business, except as set forth on EXHIBIT D; Borrower
shall notify Lender in writing within ten (10) days of the change of its name or
the use of any tradenames or division names not previously disclosed to Lender
in writing;
(c) Borrower has the right and power and is duly authorized
and empowered to enter into, execute and deliver this Agreement and the Other
Agreements and perform its obligations hereunder and thereunder; Borrower's
execution, delivery and performance of this Agreement and the Other Agreements
does not and shall not conflict with the provisions of any statute, regulation,
ordinance or rule of law, or any agreement, contract or other document which may
now or hereafter be binding on Borrower, and Borrower's execution, delivery and
performance of this Agreement and the Other Agreements shall not result in the
imposition of any lien or other encumbrance upon any of Borrower's property
under any existing indenture, mortgage, deed of trust, loan or credit agreement
or other agreement or instrument by which Borrower or any of its property may be
bound or affected and this Agreement and the Other Agreements to which Borrower
is a party are the legal, valid and binding obligations of Borrower and are
enforceable against Borrower in accordance with their respective terms;
(d) There are no actions or proceedings which are pending or
threatened against Borrower which might result in any material adverse change in
its financial condition or materially adversely affect Borrower's property and
Borrower shall, promptly upon becoming aware of any such pending or threatened
action or proceeding, give written notice thereof to Lender;
(e) Borrower has obtained all licenses, authorizations,
approvals and permits, the lack of which would have a material adverse effect on
the operation of its business, and Borrower is and shall remain in compliance in
all material respects with all applicable federal, state, local and foreign
statutes, orders, regulations, rules and ordinances (including, without
limitation, statutes, orders, regulations, rules, and ordinances relating to
taxes, securities, employee health and safety and environmental matters)
("LAWS"), the failure to comply with which would have a material adverse effect
on its business, property, assets, operations or condition, financial or
otherwise;
(f) All written information now, heretofore or hereafter
furnished by Borrower to Lender is and shall be true and correct as of the date
with respect to which such information was or is furnished;
(g) The financial statements delivered or to be delivered by
Borrower to Lender at or prior to the date of this Agreement and at all times
subsequent thereto accurately reflect the financial condition of Borrower, and
there has been no adverse change in the financial condition, the operations or
any other status of Borrower since the date of the financial statements
delivered to Lender most recently prior to the date of this Agreement;
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(h) Borrower has made and will continue to make all necessary
filings required to be made under the Securities Act and to continue to be
listed and in good standing on the NASDAQ OTCBB Exchange;
(i) Borrower is solvent, is able to pay its debts as they
become due and has capital sufficient to carry on its business, now owns
property having a value both at fair valuation and at present fair saleable
value greater than the amount required to pay its debts, and will not be
rendered insolvent by the execution and delivery of this Agreement or any of the
Other Agreements or by completion of the transactions contemplated hereunder or
thereunder;
(j) Borrower is not now obligated, nor shall it create, incur,
assume or become obligated (directly or indirectly), for any loans or other
indebtedness for borrowed money other than the Loans, without the prior written
consent of Lender, which consent shall not be unreasonably withheld, except that
Borrower may (i) borrow money from a Person other than Lender on an unsecured
and subordinated basis if a subordination agreement in favor of Lender and in
form and substance reasonably satisfactory to Lender is executed and delivered
to Lender relative thereto; (ii) maintain any present indebtedness to any Person
which is set forth on EXHIBIT G; and (iii) incur unsecured indebtedness to trade
creditors in the ordinary course of Borrower's business; and no default
currently exists under the indebtedness set forth on EXHIBIT G, and the
execution, delivery and performance of this Agreement and the Other Agreements
do not, and the incurrence of indebtedness hereunder will not, result in a
default under the indebtedness set forth on EXHIBIT G. In all cases, Borrower
may engage in capital funding activities via a sale of its equities. No prior
consent of Lender is required in a case where Borrower is raising capital via a
sale of its equities.
(k) Borrower does not own any margin securities, and none of
the proceeds of the Loans hereunder shall be used for the purpose of purchasing
or carrying any margin securities or for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase any margin securities or
for any other purpose not permitted by Regulation U of the Board of Governors of
the Federal Reserve System as in effect from time to time;
(l) Borrower is not in default under any material contract,
lease or commitment to which it is a party or by which it is bound, nor does
Borrower know of any dispute regarding any contract, lease or commitment which
is material to the continued financial success and well-being of Borrower;
12
Borrower represents, warrants and covenants to Lender that all representations
and warranties of Borrower contained in this Agreement (whether appearing in
PARAGRAPH 10 or 11 hereof or elsewhere) shall be true at the time of Borrower's
execution of this Agreement, shall survive the execution, delivery and
acceptance hereof by the parties hereto and the closing of the transactions
described herein or related hereto, shall remain true until the repayment in
full of all of the Liabilities and termination of this Agreement, and shall be
remade by Borrower at the time each Loan is made pursuant to this Agreement.
11. ADDITIONAL COVENANTS OF BORROWER. Until payment or
satisfaction in full of all Liabilities and termination of this Agreement,
unless Borrower obtains Lender's prior written consent waiving or modifying any
of Borrower's covenants hereunder in any specific instance, Borrower agrees as
follows:
(a) Borrower shall at all times keep accurate and complete
books, records and accounts with respect to all of Borrower's business
activities, in accordance with sound accounting practices and generally accepted
accounting principles consistently applied, and shall keep such books, records
and accounts, and any copies thereof, only at the addresses indicated for such
purpose on EXHIBIT D;
(b) Borrower shall promptly advise Lender in writing of any
material adverse change in the business, assets or condition, financial or
otherwise, of Borrower, the occurrence of any Event of Default hereunder or the
occurrence of any event which, if uncured, will become an Event of Default
hereunder after notice or lapse of time (or both);
(c) Lender, or any Persons designated by it, shall have the
right, at any time, to call at Borrower's places of business at any reasonable
times, and, without hindrance or delay, to inspect the Collateral and to
inspect, audit, check and make extracts from Borrower's books, records,
journals, orders, receipts and any correspondence and other data relating to
Borrower's business, the Collateral or any transactions between the parties
hereto, and shall have the right to make such verification concerning Borrower's
business as Lender may consider reasonable under the circumstances. Borrower
shall furnish to Lender such information relevant to Lender's rights under this
Agreement as Lender shall at any time and from time to time request. Borrower
authorizes Lender to discuss the affairs, finances and business of Borrower with
any officers, employees or directors of Borrower or with any Affiliate or the
officers, employees or directors of any Affiliate, and to discuss the financial
condition of Borrower with Borrower's independent public accountants. Any such
discussions shall be without liability to Lender or to Borrower's independent
public accountants. Borrower shall pay to Lender all customary fees and
out-of-pocket expenses incurred by Lender in the exercise of its rights
hereunder including a reasonable charge per auditor per day plus any out of
pocket expenses, and all of such fees and expenses shall constitute Revolving
Loans hereunder, payable on demand and, until paid, shall bear interest at the
highest rate then applicable to Revolving Loans hereunder;
(d) Borrower shall not use its property, or any part thereof,
in any unlawful business or for any unlawful purpose or use or maintain any of
its property in any manner that does or could result in a violation of any
applicable Laws;
13
(e) all monies and other property obtained by Borrower from
Lender pursuant to this Agreement will be used solely for business purposes of
Borrower;
(f) Borrower shall file all required tax returns and pay all
of its taxes when due, including without limitation taxes imposed by federal,
state or municipal agencies, and shall cause any liens for taxes to be promptly
released;
(g) Borrower shall not enter into any merger or consolidation,
or enter into any transaction outside the ordinary course of Borrower's
business, including without limitation any purchase, redemption or retirement of
any shares of any class of its stock, any acquisition of all or substantially
all of the assets of a person and any issuance of any shares of, or warrants or
other rights to receive or purchase any shares of, any class of its stock;
(h) Borrower shall not amend its organizational documents,
change its fiscal year, change the state of Borrower's organization or enter
into any transaction which has the effect of changing Borrower's state of
organization;
(i) Borrower shall reimburse Lender for all costs and
expenses, including without limitation legal expenses and reasonable attorneys'
fees, incurred by Lender in connection with documentation and consummation of
this transaction and any other transactions between Borrower and Lender,
including without limitation Uniform Commercial Code and other public record
searches, lien filings, Federal Express or similar express or messenger
delivery, appraisal costs, surveys, title insurance and environmental audit or
review costs, and in seeking to administer, collect, protect or enforce any
rights in or to the Collateral or incurred by Lender in seeking to collect any
Liabilities and to administer and/or enforce any of Lender's rights under this
Agreement and the Other Agreements. All such costs, expenses and charges shall
constitute Revolving Loans hereunder, shall be payable by Borrower to Lender on
demand, and, until paid, shall bear interest at the highest rate then applicable
to Revolving Loans hereunder;
(j) Borrower shall not grant any security interest in or
control over the Deposit Account to any person or entity.
12. DEFAULT. The occurrence of any one or more of the
following events shall constitute an "EVENT OF DEFAULT" by Borrower hereunder:
(a) the failure of Borrower to pay when due any of the
Liabilities;
(b) the failure of Borrower to perform, keep or observe any of
the covenants, conditions, promises, agreements or obligations of Borrower under
this Agreement or any of the Other Agreements;
(c) the failure of Borrower to maintain the Minimum Coverage
Rates;
(d) the failure of Borrower to perform, keep or observe any of
the covenants, conditions, promises, agreements or obligations of Borrower under
any agreement with any Person if such failure may have a material adverse effect
on Borrower's business property, assets, operations or condition, financial or
otherwise;
14
(e) the making or furnishing by Borrower to Lender of any
representation, warranty, certificate, schedule, report or other communication
within or in connection with this Agreement or the Other Agreements or in
connection with any other agreement between such Borrower and Lender, which is
untrue or misleading in any respect;
(f) (the commencement of any proceedings in bankruptcy by or
against Borrower or for the liquidation or reorganization of Borrower, or
alleging that Borrower is insolvent or unable to pay its debts as they mature,
or for the readjustment or arrangement of any Borrower's debts, whether under
the United States Bankruptcy Code or under any other law, whether state or
federal, now or hereafter existing for the relief of debtors, or the
commencement of any analogous statutory or non-statutory proceedings involving
Borrower; provided, however, that if such commencement of proceedings against
Borrower is involuntary and Borrower is contesting such proceedings in good
faith, such action shall not constitute an Event of Default unless such
proceedings are not dismissed within thirty (30) days after the commencement of
such proceedings;
(g) the appointment of a receiver or trustee for Borrower, for
any of the Collateral or for any substantial part of Borrower's assets or the
institution of any proceedings for the dissolution, or the full or partial
liquidation, of Borrower which is a corporation or a partnership; provided,
however, that if such appointment or commencement of proceedings against such
Borrower is involuntary and such Borrower is contesting such proceedings in good
faith, such action shall not constitute an Event of Default unless such
appointment is not revoked or such proceedings are not dismissed within thirty
(30) days after the commencement of such proceedings;
(h) the entry of any judgment or order against any Borrower
which remains unsatisfied or undischarged and in effect for thirty (30) days
after such entry without a stay of enforcement or execution;
(i) the occurrence of a change of control, direct or indirect,
of Borrower;
(j) the institution in any court of a criminal proceeding
against any executive officer or director of Borrower, or the indictment of any
executive officer or director of Borrower for any crime; or
(k) the occurrence of any material adverse change in the
Collateral, business, property, assets, prospects, operations or condition,
financial or otherwise, of any Borrower, as determined by Lender in its sole
judgment or the occurrence of any event which, in Lender's sole judgment might
have a material adverse effect on the Collateral, business, property, assets,
prospects, operations or condition, financial or otherwise, of Borrower.
15
12.1 The Event of Default set forth in subparts (a), (b), (c),
(d), and (k) shall each be subject to and conditioned upon a "Cure Period" and
the expiration thereof. In the event Lender believes an Event of Default has
occurred as defined in any of the aforesaid subparts before an Event of Default
may be declared by Lender to Borrower, Lender must first give Borrower written
notice with a reasonable statement of the basis of the Event of Default and
Borrower shall thereafter have five (5) business days to cure such declared
Event of Default. Should Borrower not cure the declared Event of Default then in
such case Lender may proceed with its remedies as if the Event of Default has
occurred.
13. REMEDIES UPON AN EVENT OF DEFAULT.
(a) Without limiting Lender's right to demand payment of the
Liabilities at any time, upon the occurrence of an Event of Default described in
PARAGRAPH 12(F) hereof, all of Borrower's Liabilities shall immediately and
automatically become due and payable, without notice of any kind and upon the
occurrence of any other Event of Default, all Liabilities may, at the option of
Lender, and without demand, notice or legal process of any kind, be declared,
and immediately shall become, due and payable and the exercise price of the
Warrants shall be reduced as provided therein.
(b) Upon the occurrence of an Event of Default, Lender may
exercise from time to time any rights and remedies available to it under the
Uniform Commercial Code and any other applicable law in addition to, and not in
lieu of, any rights and remedies expressly granted in this Agreement or in any
of the Other Agreements and all of Lender's rights and remedies shall be
cumulative and non-exclusive to the extent permitted by law. In particular, but
not by way of limitation of the foregoing, Lender may, without notice, demand or
legal process of any kind, take possession of any or all of the Collateral (in
addition to Collateral of which it already has possession), wherever it may be
found. At Lender's request, Borrower shall, at Borrower's expense, assemble the
Collateral and make it available to Lender at one or more places to be
designated by Lender and reasonably convenient to Lender and Borrower. Borrower
recognizes that if Borrower fails to perform, observe or discharge any of its
Liabilities under this Agreement or the Other Agreements, no remedy at law will
provide adequate relief to Lender, and agrees that Lender shall be entitled to
temporary and permanent injunctive relief in any such case without the necessity
of proving actual damages. Any notification of intended disposition of any of
the Collateral required by law will be deemed to be a reasonable authenticated
notification of disposition if given at least ten (10) business days prior to
such disposition and such notice shall (i) describe Lender and Borrower, (ii)
describe the Collateral that is the subject of the intended disposition, (iii)
state the method of the intended disposition, (iv) state that Borrower is
entitled to an accounting of the Liabilities and state the charge, if any, for
an accounting and (v) state the time and place of any public disposition or the
time after which any private sale is to be made. Lender may disclaim any
warranties that might arise in connection with the sale, lease or other
disposition of the Collateral and has no obligation to provide any warranties at
such time. Any proceeds of any disposition by Lender of any of the Collateral
may be applied by Lender to the payment of expenses in connection with the
Collateral, including without limitation legal expenses and reasonable
attorneys' fees, and any balance of such proceeds may be applied by Lender
toward the payment of such of the Liabilities, and in such order of application,
as Lender may from time to time elect. Any and all Collateral or cash derivative
thereof remaining after Lender has satisfied its remedies herein shall be
delivered and paid by Lender to Borrower not later than fifteen (15) days after
Lender's claims have been satisfied.
16
14. INDEMNIFICATION. Borrower agrees to defend (with counsel
satisfactory to Lender), protect, indemnify and hold harmless Lender, each
Affiliate of Lender, and each of their respective officers, directors,
employees, attorneys and agents (each an "INDEMNIFIED PARTY") from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, costs, expenses and disbursements of any kind or
nature (including without limitation the disbursements and the reasonable fees
of counsel for each Indemnified Party in connection with any investigative,
administrative or judicial proceeding, whether or not the Indemnified Party
shall be designated a party thereto), which may be imposed on, incurred by, or
asserted against, any Indemnified Party (whether direct, indirect or
consequential and whether based on any federal, state or local laws or
regulations, including without limitation securities, environmental and
commercial laws and regulations, under common law or in equity, or based on
contract or otherwise) in any manner relating to or arising out of this
Agreement or any Other Agreement, or any act, event or transaction related or
attendant thereto, the making and the management of the Loans or the use or
intended use of the proceeds of the Loans; provided, however, that Borrower
shall not have any obligation hereunder to any Indemnified Party with respect to
matters caused by or resulting from the willful misconduct or gross negligence
of such Indemnified Party. To the extent that the undertaking to indemnify set
forth in the preceding sentence may be unenforceable because it is violative of
any law or public policy, Borrower shall satisfy such undertaking to the maximum
extent permitted by applicable law. Any liability, obligation, loss, damage,
penalty, cost or expense covered by this indemnity shall be paid to each
Indemnified Party on demand, and, failing prompt payment, shall, together with
interest thereon at the highest rate then applicable to Revolving Loans
hereunder from the date incurred by each Indemnified Party until paid by
Borrower, be added to the Liabilities of Borrower and be secured by the
Collateral. The provisions of this PARAGRAPH 15 shall survive the satisfaction
and payment of the other Liabilities and the termination of this Agreement.
15. NOTICE. All written notices and other written
communications with respect to this Agreement shall be sent by ordinary,
certified or overnight mail, by telecopy or delivered in person, and in the case
of Lender shall be sent to it at 000 Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx:
Xxxxx Xxxxxxxxx, and in the case of Borrower shall be sent to it at 0000 Xxxxxx
Xxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, XX 00000, attention: Xxxxxxx X. Xxxx, Esq..
17
16. CHOICE OF GOVERNING LAW; CONSTRUCTION; FORUM SELECTION.
This Agreement and the Other Agreements are submitted by Borrower to Lender for
Lender's acceptance or rejection at Lender's principal place of business as an
offer by Borrower to borrow monies from Lender now and from time to time
hereafter, and shall not be binding upon Lender or become effective until
accepted by Lender, in writing, at said place of business. If so accepted by
Lender, this Agreement and the Other Agreements shall be deemed to have been
made at said place of business. THIS AGREEMENT AND THE OTHER AGREEMENTS SHALL BE
GOVERNED AND CONTROLLED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS AS TO
INTERPRETATION, ENFORCEMENT, VALIDITY, CONSTRUCTION, EFFECT, AND IN ALL OTHER
RESPECTS, INCLUDING WITHOUT LIMITATION THE LEGALITY OF THE INTEREST RATE AND
OTHER CHARGES, BUT EXCLUDING PERFECTION OF THE SECURITY INTERESTS IN THE
COLLATERAL, WHICH SHALL BE GOVERNED AND CONTROLLED BY THE LAWS OF THE RELEVANT
JURISDICTION. If any provision of this Agreement shall be held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or remaining provisions of this Agreement.
To induce Lender to accept this Agreement, Borrower
irrevocably agrees that, subject to Lender's sole and absolute election, ALL
ACTIONS OR PROCEEDINGS IN ANY WAY, MANNER OR RESPECT, ARISING OUT OF OR FROM OR
RELATED TO THIS AGREEMENT, THE OTHER AGREEMENTS OR THE COLLATERAL SHALL BE
LITIGATED IN COURTS HAVING SITUS WITHIN THE CITY OF CHICAGO, STATE OF ILLINOIS.
BORROWER HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF ANY LOCAL, STATE OR
FEDERAL COURTS LOCATED WITHIN SAID CITY AND STATE. BORROWER HEREBY WAIVES ANY
RIGHT IT MAY HAVE TO TRANSFER OR CHANGE THE VENUE OF ANY LITIGATION BROUGHT
AGAINST BORROWER BY LENDER IN ACCORDANCE WITH THIS PARAGRAPH.
17. PARTICIPATION; ASSIGNMENT. Lender shall have the right to
assign all or any of its rights under this Agreement and the Other Agreements,
and/or to offer participation interests therein, to any Person, without the
consent of Borrower. In such event, Borrower shall execute such agreements,
instruments and documents as Lender shall request in connection therewith,
including without limitation agreements, instruments and documents in favor of
each assignee and participant.
18. MODIFICATION AND BENEFIT OF AGREEMENT. This Agreement and
the Other Agreements may not be modified, altered or amended except by an
agreement in writing signed by Borrower and Lender. Borrower may not sell,
assign or transfer this Agreement, or the Other Agreements or any portion
thereof, including without limitation Borrower's rights, titles, interest,
remedies, powers or duties thereunder.
19. HEADINGS OF SUBDIVISIONS. The headings of subdivisions in
this Agreement are for convenience of reference only, and shall not govern the
interpretation of any of the provisions of this Agreement.
18
20. POWER OF ATTORNEY. Borrower acknowledges and agrees that
its appointment of Lender as its attorney and agent-in-fact for the purposes
specified in this Agreement is an appointment coupled with an interest and shall
be irrevocable until all of the Liabilities are paid in full and this Agreement
is terminated.
21. WAIVER OF JURY TRIAL; OTHER WAIVERS.
(a) BORROWER HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING WHICH PERTAINS DIRECTLY OR INDIRECTLY TO THIS AGREEMENT,
ANY OF THE OTHER AGREEMENTS, THE LIABILITIES, THE COLLATERAL, ANY ALLEGED
TORTIOUS CONDUCT BY BORROWER OR LENDER OR WHICH, IN ANY WAY, DIRECTLY OR
INDIRECTLY, ARISES OUT OF OR RELATES TO THE RELATIONSHIP BETWEEN BORROWER AND
LENDER. IN NO EVENT SHALL LENDER BE LIABLE FOR LOST PROFITS OR OTHER SPECIAL OR
CONSEQUENTIAL DAMAGES.
(b) Borrower hereby waives demand, presentment, protest and
notice of nonpayment, and further waives the benefit of all valuation, appraisal
and exemption laws.
(c) BORROWER HEREBY WAIVES ALL RIGHTS TO NOTICE AND HEARING OF
ANY KIND PRIOR TO THE EXERCISE BY LENDER OF ITS RIGHTS TO REPOSSESS THE
COLLATERAL OF BORROWER WITHOUT JUDICIAL PROCESS OR TO REPLEVY, ATTACH OR LEVY
UPON SUCH COLLATERAL WITHOUT PRIOR NOTICE OR HEARING.
(d) Lender's failure, at any time or times hereafter, to
require strict performance by Borrower of any provision of this Agreement or any
of the Other Agreements shall not waive, affect or diminish any right of Lender
thereafter to demand strict compliance and performance therewith. Any suspension
or waiver by Lender of an Event of Default under this Agreement or any default
under any of the Other Agreements shall not suspend, waive or affect any other
Event of Default under this Agreement or any other default under any of the
Other Agreements, whether the same is prior or subsequent thereto and whether of
the same or of a different kind or character. No delay on the part of Lender in
the exercise of any right or remedy under this Agreement or any Other Agreement
shall preclude other or further exercise thereof or the exercise of any right or
remedy. None of the undertakings, agreements, warranties, covenants and
representations of Borrower contained in this Agreement or any of the Other
Agreements and no Event of Default under this Agreement or default under any of
the Other Agreements shall be deemed to have been suspended or waived by Lender
unless such suspension or waiver is in writing, signed by a duly authorized
officer of Lender and directed to Borrower specifying such suspension or waiver.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the 16th day of March, 2006.
19
RAVINIA FUNDING, LLC
By___________________________________
Its__________________________________
DIRECT RESPONSE FINANCIAL
SERVICES, INC., D/B/A DIRECT2OWN
By___________________________________
Its__________________________________
20
LIST OF EXHIBITS
A________ Included Preclosing Accounts
B________ Form of Revolving Note
C________ Deposit Account Control Agreement
D________ Business and Collateral Locations
E________ Permitted Liens
F________ Form of Warrant
G________ Indebtedness
H________ Amortization Schedule
EXHIBIT A
Included Preclosing Accounts
EXHIBIT B
Form of Revolving Note
EXHIBIT B
Deposit Account Control Agreement
EXHIBIT C
Business and Collateral Locations
A. Borrower's Business Locations (please indicate which location is the
principal place of business and at which locations originals and all
copies of Borrower's books, records and accounts are kept).
1. 00000 X. Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, Xxxxxxxxxx 00000
2.
3.
B. Other locations of Collateral (including without limitation warehouse
locations, processing locations, consignment locations) and all post
office boxes of Borrower. Please indicate the relationship of such
location to Borrower (i.e. public warehouse, processor, etc.).
1. 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, Xxxxxxxxxx 00000
2.
3.
EXHIBIT D
Permitted Liens
NONE
EXHIBIT E
Form of Warrant
EXHIBIT F
Indebtedness
Commercial Line of Credit (unsecured) First Private Bank & Trust
Credit Card Line of Credit (unsecured) MBNA
Credit Card Line of Credit (unsecured) American Express
EXHIBIT G
Amortization Schedule
