EXHIBIT 10.13.1
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$15,000,000
REVOLVING CREDIT AGREEMENT
BY AND BETWEEN
FLEXCHECK HOLDINGS LLC
AND
HOMEGOLD FINANCIAL, INC.
DATED AS OF JANUARY 18, 2002
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS; INTERPRETATION.....................................................................1
Section 1.1 Definitions.................................................................................1
Section 1.2 Interpretation..............................................................................4
SECTION 2. THE CREDIT......................................................................................4
Section 2.1 The Revolving Credit........................................................................4
Section 2.2 Applicable Interest Rates...................................................................4
Section 2.3 Minimum Borrowing Amounts...................................................................5
Section 2.4 Borrowing Procedures........................................................................5
Section 2.5 Payments....................................................................................5
Section 2.6 The Note....................................................................................5
Section 2.7 Terminations of Agreement...................................................................6
SECTION 3. PAYMENTS........................................................................................6
Section 3.1 Place and Application of Payments...........................................................6
SECTION 4. THE COLLATERAL..................................................................................6
Section 4.1 The Collateral..............................................................................6
Section 4.2 Further Assurances..........................................................................7
SECTION 5. REPRESENTATIONS AND WARRANTIES..................................................................7
Section 5.1 Organization and Qualification..............................................................7
Section 5.2 Sub Companies...............................................................................8
Section 5.3 Corporate Authority and Validity of Obligations.............................................8
Section 5.4 Compliance with Laws........................................................................8
Section 5.5 No Defaults.................................................................................9
SECTION 6. CONDITIONS PRECEDENT............................................................................9
Section 6.1 Initial Loan................................................................................9
Section 6.2 All Loans...................................................................................9
SECTION 7. COVENANTS......................................................................................10
Section 7.1 Maintenance of Business....................................................................10
Section 7.2 Maintenance of Property....................................................................10
Section 7.3 Taxes and Assessments......................................................................10
Section 7.4 Insurance..................................................................................10
Section 7.5 Financial Reports..........................................................................10
Section 7.6 Indebtedness for Borrowed Money............................................................12
Section 7.7 Liens......................................................................................12
Section 7.8 Mergers, Consolidations and Sales..........................................................12
Section 7.9 ERISA......................................................................................12
Section 7.10 Compliance with Laws.......................................................................12
Section 7.11 Compensation and Employment Agreements of Key Management...................................13
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Section 7.12 Maintenance of Sub Companies...............................................................13
Section 7.13 Change in the Nature of Business...........................................................13
Section 7.14 Commitments................................................................................13
Section 7.15 Dividends and Certain Other Restricted Payments............................................13
Section 7.16 Sub Company Guaranties.....................................................................13
Section 7.17 New Jurisdiction...........................................................................13
Section 7.18 Audits.....................................................................................13
SECTION 8. EVENTS OF DEFAULT AND REMEDIES.................................................................14
Section 8.1 Events of Default..........................................................................14
Section 8.2 Remedies - Other Events of Default.........................................................15
Section 8.3 Expenses...................................................................................16
SECTION 9. MISCELLANEOUS..................................................................................16
Section 9.1 No Waiver of Rights........................................................................16
Section 9.2 Non-Business Day...........................................................................16
Section 9.3 Documentary Taxes..........................................................................16
Section 9.4 Survival of Representations................................................................16
Section 9.5 Survival of Indemnities....................................................................16
Section 9.6 Notices....................................................................................16
Section 9.7 Counterparts...............................................................................17
Section 9.8 Successors and Assigns.....................................................................17
Section 9.9 Amendments.................................................................................18
Section 9.10 Fees and Indemnification...................................................................18
Section 9.11 Assignments................................................................................18
Section 9.12 Governing Law..............................................................................19
Section 9.13 Headings...................................................................................19
Section 9.14 Entire Agreement...........................................................................19
Section 9.15 Terms of Collateral Documents Not Superseded...............................................19
Section 9.16 Construction...............................................................................19
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EXHIBITS AND SCHEDULES
Exhibit A -- Revolving Credit Note
Exhibit B -- Security Agreement
Exhibit C -- Compliance Certificate
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REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT (this "Agreement") dated as of this
15th day of January, 2002 by and between HOMEGOLD FINANCIAL, INC., a South
Carolina corporation with its corporate office at 0000 Xxxxxxxxx Xxxxxx,
Xxxxxxxx, XX 00000 (said HomeGold Financial, Inc., together with any of its
Affiliates and their successors and assigns being hereinafter referred to as the
"Lender") and FLEXCHECK HOLDINGS LLC, a South Carolina limited liability company
("Borrower").
RECITALS
WHEREAS, the Borrower wishes to enter into this Revolving Credit
Agreement with Lender pursuant to which Lender will provide Borrower with a $15
million revolving line of credit (the "Revolving Credit Loan");
NOW THEREFORE, in consideration of the premises and of the covenants
and agreements hereinafter contained, the parties hereto agree as follows:
SECTION 1. DEFINITIONS; INTERPRETATION
Section 1.1 Definitions. The following terms when used herein have the
following meanings:
"Affiliate" means any Person, directly or indirectly controlling or
controlled by, or under direct or indirect common control with, another Person.
A Person shall be deemed to control another Person for the purposes of this
definition if such Person possesses, directly or indirectly, the power to
direct, or cause the direction of, the management and policies of the other
Person, whether through the ownership of voting securities, common directors,
trustees or officers, by contract or otherwise.
"Business Day" means any day other than a Saturday or Sunday on which
banks are not authorized or required to close in Columbia, South Carolina.
"CII Weighted Average Coupon" means the weighted average interest rate
paid by Carolina Investors Inc. on its outstanding Debentures and Floating Rate
Notes.
"Code" means the Internal Revenue code of 1986, as amended, and any
successor statute thereto.
"Collateral" means all properties, rights, interests and privileges
from time to time subject to the Liens granted to the Lender pursuant to the
Collateral Documents.
"Collateral Documents" means the Security Agreement and all other
security agreements, financing statements and other documents as shall from time
to time secure the Note or any other obligations of the Borrower hereunder or in
connection herewith.
"Consumer Loan" shall mean any loan made by Borrower or a Sub Company
in the course of its business, together with all documentation and collateral
for such Loan.
"Controlled Group" means all members of a controlled group of
corporations and all trades and businesses (whether or not incorporated) under
common control which, together with the Borrower or any of its Sub Companies,
are treated as a single employer under Section 414 of the Code.
"Default" means any event or condition, the occurrence of which would,
with the passage of time or the giving of notice, or both, constitute an Event
of Default.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute.
"Event of Default" means any event or condition specified in Section
8.1 hereof.
"GAAP" means generally acceptable accounting principles as in effect
from time to time, applied by the Borrower as a basis consistent with the
preparation of the Borrower's most recent financial statements furnished to the
Lender pursuant to Section 7.5 hereof.
"Indebtedness for Borrowed Money" means for any Person (without
duplication) (i) all indebtedness created, assumed or incurred in any manner by
such Person representing money borrowed (including by the issuance of debt
securities), (ii) all indebtedness for the deferred purchase price of property
or services (other than trade accounts payable arising in the ordinary course of
business), (iii) all indebtedness secured by any Lien upon Property of such
Person, whether or not such Person has assumed or becomes liable for the payment
of such indebtedness, (iv) all capitalized lease obligations of such Person and
(v) all obligations of such Person on or with respect to letters of credit,
bankers' acceptances and other extensions of credit whether or not representing
obligations for borrowed money in each case if and to the extent any of the
foregoing would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP. Notwithstanding any other provision of the
foregoing definition, Indebtedness for Borrowed Money shall not include (i) any
liability for federal, state, local or other taxes, and (ii) any trade payable
arising from the purchase of goods or materials or for services obtained in the
ordinary course of business which are not overdue or which are being contested
in good faith.
"Lien" means any mortgage, lien, security interest, pledge, charge or
encumbrance of any kind in respect of any Property, including the interests of a
vendor or lessor under any conditional sale, capital lease or other title
retention arrangement.
"Loan Documents" means this Agreement, the Note and the Collateral
Documents.
"Material Plan" is defined in Section 8.1(j) hereof.
"Net Income" means, with reference to any period, the net income (or
net loss) of the Borrower and Sub Companies for such period as computed on a
consolidated basis in accordance with GAAP.
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"Note" is defined in Section 2.6 hereof.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Note, all accrued and unpaid fees and all other obligations of
the Borrower to the Lender arising under the Loan Documents, in each case
whether now existing or hereafter arising, due or to become due, direct or
indirect, absolute or contingent, and howsoever evidenced, held or acquired.
"Operating Cash Flow" means, with reference to any period, the Net
Income of the Borrower and Sub Companies plus depreciation and amortization and
other non-cash expense items.
"PBGC" means the Pension Benefit Guaranty Corporation or any Person
succeeding to any or all of its functions under ERISA.
"Person" means an individual, partnership, corporation, association,
trust, unincorporated organization or any other entity or organization,
including a government or agency or political subdivision thereof.
"Plan" means any 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 and either (i) is maintained by a member of the Controlled Group for
employees of a member of the Controlled Group, (ii) is maintained pursuant to a
collective bargaining agreement or any other arrangement under which more than
one employer makes contributions and to which a member of the Controlled Group
is then making or accruing an obligation to make contributions or has within the
preceding five plan years made contributions, or (iii) under which a member of
the Controlled Group has any liability, including any liability by reason of
having been a substantial employer within the meaning of Section 4063 of ERISA
at any time during the preceding five years or by reason of being deemed a
contributing sponsor under Section 4064 of ERISA.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Revolving Credit" is defined in Section 2.1 hereof.
"Security Agreement" means that certain Security Agreement of even date
among the Borrower and the Lender, as the same may from time to time be amended.
"Sub Company" means any corporation, limited liability company or other
entity of which any of the outstanding voting stock or comparable equity
interests (including interests as a limited partner in a limited partnership) is
at the time directly or indirectly owned by any Borrower and one/or more of its
Sub Companies.
"Termination Date" shall mean June 30, 2006 or such earlier date on
which this Agreement is terminated in whole pursuant to Sections 2.7 or 8.2
hereof.
"Unfunded Vested Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which the present value of all vested
nonforfeitable accrued benefits under such Plan exceeds the fair market value of
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all Plan assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plan, but only to the extent that such excess
represents a potential liability of a member of the Controlled Group to the PBGC
or the Plan under Title IV of ERISA.
"Welfare Plan" means a "welfare plan," as defined in Section 3(1) of
ERISA.
Section 1.2 Interpretation. The foregoing definitions are equally
applicable to both the singular and plural forms of the terms defined. All
references to times of day herein are references to Columbia, South Carolina
time unless otherwise specifically provided. Where the character or amount of
any asset or liability or item of income or expense is required to be determined
or any consolidation or other accounting computation is required to be made for
the purposes of this Agreement, the same shall be done in accordance with GAAP
except where such principles are inconsistent with the specific provisions of
this Agreement.
SECTION 2. THE CREDIT
Section 2.1 The Revolving Credit. Subject to the terms and conditions
hereof, the Lender agrees to extend a revolving credit (the "Revolving Credit")
to the Borrower in an aggregate principal amount at any one time outstanding not
to exceed Fifteen Million ($15,000,000.00) Dollars, which may be advanced to the
Borrower from time to time, be repaid and used again, to and including the
Termination Date. The Revolving Credit will be available to the Borrower in the
form of Loans (the " Loans"), it being understood that all advances and Loans
hereunder shall be subject to Lender's prior review and approval.
(a) Maturity. All Loans and all other unpaid Obligations shall mature and
be payable in full by the Borrower on the Termination Date.
(b) All Monetary Obligations are Advances. All Monetary Obligations shall
be considered and treated as advances hereunder or under the other Loan
Documents from the Lender to the party owing the Obligations.
Section 2.2 Applicable Interest Rates. (a) Pre-Default Rate. Each Loan made
by the Lender shall bear interest (computed on the basis of a year of 365 or 366
days as the case may be for actual days elapsed) on the unpaid principal amount
thereof from the date such Loan is made until maturity (whether by acceleration
or otherwise) at a rate per annum determined by adding three percent (3%) to the
CII Weighted Average Coupon from time to time in effect, payable on the dates
provided in Section 2.5 hereof and at maturity (whether by acceleration or
otherwise).
(b) Default Rate. If any payment (including any required prepayment) of
principal on any Loan is not made when due (whether by acceleration or
otherwise), such Loan shall bear interest (computed on the basis of a year of
365 or 366 as the case may be for actual days elapsed) from the date such
payment was due until paid in full, payable on demand, at a rate per annum equal
to the sum of six percent (6%) plus the CII Weighted Average Coupon from time to
time in effect.
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Section 2.3 Minimum Borrowing Amounts. Each Loan shall be in an amount not
less than $250,000.
Section 2.4 Borrowing Procedures. (a) Notice to the Lender. The Borrower
shall give telecopy or other written notice to the Lender (which notice shall be
irrevocable once given) by no later than 3:30 p.m. (Eastern Standard Time) one
Business Day prior to the date of any requested Loan. Each such notice shall
specify the date of the requested Loan (which shall be a Business Day) and the
amount of the requested Loan. The Borrower agrees that the Lender may rely on
any such notice given by any Person the Lender in good faith believes is
authorized to request Loans on behalf of the Borrower without the necessity of
independent investigation and, in any event, such notice shall govern if the
Lender has acted in reliance thereon.
(b) Disbursement of Loans. The Lender shall make the proceeds of each Loan
available to the Borrower by crediting the same to the Borrower's account not
later than the close of business on the date of such borrowing.
Section 2.5 Payments. (a) Voluntary. The Borrower may prepay on any
Business Day without premium or penalty and in whole or in part (but, if in
part, then in an amount not less than $100,000) any Loans in accordance with the
procedures set forth in section 3.1 below, such prepayment to be made by the
payment of the principal amount to be prepaid together with accrued interest
thereon and any expenses owing in connection therewith.
(b) Mandatory. Beginning on the earlier of (i) June 30, 2004 or (ii) the
first day of the month immediately following the first three (3) consecutive
months in which the Borrower experiences positive Operating Cash Flow, the
Borrower shall make monthly payments of interest and principal, based upon a
60-month amortization of the then outstanding amount of principal and accrued
interest in level monthly installments. Any readvances to Borrower shall be
added to the outstanding principal balance and the monthly mandatory payments
hereunder shall be recalculated on the basis of a 60-month amortization. The
entire balance of principal and interest shall be payable in full on the
Termination Date.
(c) Reborrowings. Any amount paid or prepaid on the Loans on or before the
Termination Date may, subject to the terms and conditions of this Agreement, be
borrowed, repaid and borrowed again.
Section 2.6 The Note. (a) All Loans made to the Borrower by the Lender
shall be evidenced by a Revolving Credit Note of the Borrower in the form of
Exhibit A payable to the order of the Lender in the face principal amount of
Fifteen Million ($15,000,000) Dollars (such Revolving Credit Note, as the same
may from time to time be amended, together with any notes executed in
replacement thereof are hereinafter referred to as the "Note"). Such Note shall
be dated the date of issuance thereof and be payable to the order of the Lender
in the principal amount of its Commitment.
(b) The Lender shall record on its books or records or on a schedule to the
Note the amount of each Loan made by it to the Borrower, and all payments of
principal and interest and the principal balance from time to time outstanding
thereon; provided that prior to the transfer of any Note all such amounts shall
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be recorded on a schedule to such Note. The record thereof, whether shown on
such books or records of the Lender or on a schedule to any Note, shall be prima
facie evidence as to all such amounts; provided, however, that the failure of
the Lender to record any of the foregoing or any error in any such record shall
not limit or otherwise affect the obligation of the Borrower to repay all Loans
made hereunder together with accrued interest thereon.
Section 2.7 Terminations of Agreement. The Lender shall have the right at
any time and from time to time by written notice to the Borrower to terminate in
whole but not in part, this Agreement. The Borrower shall pay to the Lender all
outstanding Obligations owing to Lender within thirty (30) days after any such
termination.
SECTION 3. PAYMENTS
Section 3.1 Place and Application of Payments. All payments of principal
and interest on the Loans and all payments of all other amounts payable under
this Agreement shall be made by wire transfer or other immediately available
funds at the place of payment to the Lender by no later than 1:00 p.m. to the
deposit account of the Lender at such location as the Lender may designate to
the Borrower. Any payments received after such time shall be deemed to have been
received by the Lender on the next Business Day. All such payments shall be made
in lawful money of the United States of America, in immediately available funds
at the place of payment, without setoff or counterclaim.
Anything contained herein to the contrary notwithstanding, all payments and
collections received in respect of the indebtedness evidenced by the Note and
all proceeds of Collateral received, in each instance, by the Lender after the
occurrence of an Event of Default shall be applied as follows:
(a) first to the payment of any outstanding costs and expenses incurred by
the Lender in monitoring, verifying, protecting, preserving or enforcing any
Liens on the Collateral or in protecting, preserving or enforcing rights
hereunder or under any other Loan Document, and in any event including all costs
and expenses of a character which the Borrower has agreed to pay under Sections
8.3 and 9.10 hereof;
(b) second to the payment of any outstanding interest or other fees or
amounts due hereunder, under the Note or any other Loan Document other than for
principal;
(c) third to the payment of principal owing on the Note; and
(d) fourth to the Borrower or whomever the Lender determines may be
lawfully entitled thereto.
SECTION 4. THE COLLATERAL
Section 4.1 The Collateral. The Note and the other Obligations of the
Borrower hereunder and under the other Loan Documents shall be secured by valid
and perfected first priority Liens pursuant to Security Agreement in the form of
Exhibit B in favor of the Lender on all of the Borrower's now existing and
hereafter arising or acquired Consumer Loans and, in addition, the following
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Property: Collateral for the loan shall include all the following Property and
interests in Property of Borrower and each of the Sub Companies, whether now
owned or existing or hereinafter created, acquired, or arising and wheresoever
located (the "Collateral"):
(a) Accounts: All accounts, contract rights, chattel paper, customer
monitoring contracts, customer maintenance contracts, instruments and
documents, whether now owned or hereafter created or acquired by any
Sub Company or in which any Sub Company now has or hereafter acquires
any interest, including all accounts due to any Sub Company from any
independent third party financing entity.
(b) Receivables. All Consumer Loan receivables, collateral for Consumer
Loans including checks and all trade and other receivables.
(c) Equipment: All computers, machinery, apparatus, equipment,
fittings, furniture, fixtures, motor vehicles, and other tangible
personal Property of every kind and description, now owned or hereafter
acquired, and all parts, accessories, and special tools thereto and all
increases and accessions thereto and substitutions and replacements
therefor.
(d) General Intangibles: All general intangibles, whether now owned or
hereafter created or acquired, including, without limitation, all
choses in action, causes of action, corporate or other business
records, deposit accounts, inventions, designs, patents, patent
applications, trademarks, trade names, trade secrets, goodwill,
copyrights, registrations, licenses, franchises, customer lists, tax
refund claims, computer programs, all claims under guaranties, security
interests or other security held by or granted to any Borrower to
secure payment of any of the Accounts, all rights to indemnification
and all other intangible property of every kind and nature (other than
Accounts).
(e) All monies and other Property of any kind, now or at any time or
times hereafter, while in the possession or under the control of Lender
or a bailee of Lender, together with all proceeds relating thereto.
Section 4.2 Further Assurances. The Borrower covenants and agrees that it
will comply with all terms and conditions of each of the Loan Documents and that
it will, at any time, and from time to time as requested by the Lender, execute
and deliver such further instruments and agreements (including but not limited
to credit agreements, promissory notes, and security agreements) amending,
supplementing, restating or replacing the Loan Documents and do such acts and
things as the Lender may deem necessary or appropriate to protect Lender's
interests.
SECTION 5. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lender as follows:
Section 5.1 Organization and Qualification. FlexCheck is a limited
liability company duly organized, validly existing and in good standing under
the laws of the state of South Carolina, has full and adequate corporate power
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to own its Property and to carry on its business as now conducted, and is duly
licensed or qualified and in good standing in each jurisdiction in which the
nature of its business conducted by it or the nature of the Property owned or
leased by it makes such licensing or qualification necessary hereof.
Section 5.2 Sub Companies. Each Sub Company is duly organized, validly
existing and in good standing under the laws of South Carolina, has full and
adequate power to own its Property and carry on its business as conducted, and
is duly licensed or qualified and in good standing in each jurisdiction in which
the nature of its business as now conducted or proposed to be conducted by it or
the nature of the Property owned or leased by it makes such licensing or
qualification necessary. There are no outstanding commitments or other
obligations of any Sub Company to issue, and no options, warrants or other
rights of any Person to acquire, any shares of any class of capital stock or
other equity interests of any Sub Company.
Section 5.3 Corporate Authority and Validity of Obligations. FlexCheck and
each Sub Company has full right and authority to enter into the Loan Documents
to make the borrowings herein provided for, to grant to the Lender the Liens
described in the Collateral Documents, to issue its Note and to perform all of
its obligations hereunder and under the other Loan Documents. The Loan Documents
have been duly authorized, executed and delivered by FlexCheck and each Sub
Company and constitute valid and binding Obligations of FlexCheck and each Sub
Company enforceable in accordance with their terms, subject to bankruptcy laws
and general principles of equity, and the Loan Documents do not, nor does the
performance or observance by FlexCheck or any Sub Company of any of the matters
or things herein or therein provided for, contravene any provision of law or any
judgment, injunction, order or decree binding upon FlexCheck or any Sub Company
or any charter or by-law provision of FlexCheck or any Sub Company or any
covenant, indenture or agreement of or affecting FlexCheck or any Sub Company or
any of their respective Properties, or result in the creation or imposition of
any Lien on any Property of FlexCheck or any Sub Company except pursuant to the
Loan Documents.
Section 5.4 Compliance with Laws. FlexCheck and each Sub Company is in
compliance with the requirements of all federal, state and local laws, rules and
regulations applicable to or pertaining to the Properties or business operations
of FlexCheck, or any Sub Company (including, without limitation, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit Billing
Act, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the
Federal Trade Commission Act, the Xxxxxxxx-Xxxx Warranty Act, the Federal
Reserve Board's Regulations "B" and "Z", the Soldiers' and Sailors' Civil Relief
Act of 1940, and any other federal, state and local laws relating to interest,
usury, consumer credit, equal credit opportunity, fair credit reporting,
privacy, consumer protection, false or deceptive trade practices and disclosure,
the Occupational Safety and Health Act of 1970, the Americans with Disabilities
Act of 1990, and laws and regulations establishing quality criteria and
standards for air, water, land and toxic or hazardous wastes or substances),
non-compliance with which could have a material adverse effect on either (a) the
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financial condition, Properties, business or operations of the Borrower or any
Sub Company or (b) the Collateral. Neither FlexCheck nor any Sub Company has
received notice to the effect that its operations are not in compliance with any
of the requirements of applicable federal, state or local environmental, health
and safety statutes and regulations or are the subject of any governmental
investigation evaluating whether any remedial action is needed to respond to a
release of any toxic or hazardous waste or substance into the environment, which
non-compliance or remedial action could have a material adverse effect on the
financial condition, Properties, business or operations of FlexCheck or any Sub
Company.
Section 5.5 No Defaults. No Default or Event of Default has occurred and is
continuing.
SECTION 6. CONDITIONS PRECEDENT
The obligation of the Lender to make any Loan or any other financial
accommodation hereunder shall be subject to the following conditions precedent:
Section 6.1 Initial Loan. Prior to the making of the initial Loan
hereunder:
(a) The Lender shall have received this Agreement, the Note and the other
Loan Documents, together with any financing statements and amendments to
existing financing statements requested by the Lender in connection therewith.
(b) Each Sub Company shall have guaranteed performance and payment of all
Obligations hereunder.
Section 6.2 All Loans. As of the time of the making of each Loan:
(a) The Lender shall have received the notice and copies of the documents
required by Section 2.4 hereof.
(b) Each of the representations and warranties of the Borrower set forth in
Section 5 hereof shall be true and correct as of said time, except to the extent
that any such representation or warranty relates solely to an earlier date;
(c) The Borrower shall be in full compliance with all of the terms and
conditions of this Agreement and of the other Loan Documents, and no Default or
Event of Default shall have occurred and be continuing or would occur as a
result of making such Borrowing; and
(d) Each Sub Company shall be in full compliance with all of the terms and
conditions of its guaranty of Borrower's performance hereunder.
(e) Such Loan shall not violate any order, judgment or decree of any court
or other authority or any provision of law or regulation applicable to the
Lender.
(f) This Agreement shall not have been terminated by Lender.
Each request for a Loan hereunder shall be deemed to be a representation
and warranty by the Borrower on the date of such Borrowing as to the facts
specified in this Section 6.2.
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SECTION 7. COVENANTS
The Borrower agrees that, so long as any Commitment is available to or any
Obligations are outstanding hereunder, except to the extent compliance in any
case or cases is waived in writing by the Lender:
Section 7.1 Maintenance of Business. The Borrower shall preserve and keep
in force and effect its corporate existence and all licenses, permits and
franchises necessary to the proper conduct of its business.
Section 7.2 Maintenance of Property. The Borrower will maintain, preserve
and keep its Properties in good repair, working order and condition (ordinary
wear and tear excepted) and will from time to time make all needful and proper
repairs, renewals, replacements, additions and betterments thereto so that at
all times the efficiency thereof shall be fully preserved and maintained.
Section 7.3 Taxes and Assessments. The Borrower will duly pay and discharge
all taxes, rates, assessments, fees and governmental charges upon or against it
or its Properties, in each case before the same become delinquent and before
penalties accrue thereon, unless and to the extent that the same are being
contested in good faith and by appropriate proceedings which prevent enforcement
of the matter under contest and adequate reserves are provided therefor.
Section 7.4 Insurance. The Borrower will insure and keep insured, with good
and responsible insurance companies, all insurable Property owned by it which is
of a character usually insured by Persons similarly situated and operating like
Properties against loss or damage from such hazards and risks, and in such
amounts, as are insured by Persons similarly situated and operating like
Properties; and the Borrower will insure such other hazards and risks (including
employers' and public liability risks) with good and responsible insurance
companies as and to the extent usually insured by Persons similarly situated and
conducting similar businesses. The Borrower shall in any event maintain
insurance on the Collateral to the extent required by the Collateral Documents.
The Borrower will upon request of the Lender furnish a certificate setting forth
in summary form the nature and extent of the insurance maintained pursuant to
this Section.
Section 7.5 Financial Reports. The Borrower will maintain a standard and
modern system of accounting in accordance with GAAP and will furnish to the
Lender and its duly authorized representatives such information (including
financial statements) respecting the business and financial condition of the
Borrower as the Lender may reasonably request; and without any request, will
furnish to the Lender:
(a) as soon as available, and in any event within thirty (30) days after
the end of each calendar month, a copy of the consolidated and consolidating
balance sheet and consolidated and consolidating statements of income, retained
earnings and cash flows of the Borrower for such period, all in reasonable
detail showing in comparative form the figures for the corresponding date and
period in the previous fiscal year, prepared by the Borrower in accordance with
GAAP and a report of charge-offs, recoveries and repossession of collateral with
10
respect to Consumer Loans all in reasonable detail prepared by the Borrower, and
in each case certified to by the chief executive officer of the Borrower;
(b) as soon as available, and in any event within ninety (90) days after
the close of each fiscal year of the Borrower, a copy of the consolidated and
consolidating balance sheet of the Borrower as of the close of such fiscal year
and the consolidated and consolidating statements of income, retained earnings
and cash flows of the Borrower for such period, and accompanying notes thereto,
all in reasonable detail showing in comparative form the figures for the
previous fiscal year, accompanied by an unqualified opinion thereon of Xxxxxxx,
Xxxxx & Company or another firm of independent public accountants of recognized
standing, selected by the Borrower and satisfactory to the Lender, to the effect
that the financial statements have been prepared in accordance with GAAP and
present fairly in accordance with GAAP the consolidated and consolidating
financial condition of the Borrower as of the close of such fiscal year and the
results of their operations and cash flows for the fiscal year then ended and
that an examination of such accounts in connection with such financial
statements has been made in accordance with generally accepted auditing
standards and, accordingly, such examination included such tests of the
accounting records and such other auditing procedures as were considered
necessary in the circumstances;
(c) not later than ten (10) business days after receipt by the Borrower
thereof, a copy of any management letters on internal accounting controls of the
Borrower prepared by its independent public accountants;
(d) not later than ten (10) business days after receipt by the Borrower
thereof, a copy of any internal audit reports (with responses, when available)
with respect to the Borrower prepared by its controller's office or other
in-house staff accountants;
(e) not later than ten (10) business days after receipt by the Borrower
thereof, a copy of each audit made by any regulatory agency of the books and
records of the Borrower;
(f) a daily summary of Borrower's cash and liquidity in such form as Lender
may reasonably require; and
(g) within one business day after knowledge thereof shall have come to the
attention of any responsible officer of the Borrower, written notice of (i) any
threatened or pending litigation or governmental proceeding or labor controversy
against the Borrower which involves an amount of $10,000 or more or which, if
adversely determined, would have a material adverse effect on the financial
condition, Properties, business or operations of the Borrower, taken as a whole,
or of the occurrence of any Default or Event of Default hereunder.
Each of the financial statements furnished to the Lender pursuant to
clauses (a) and (b) of this Section shall be accompanied by a written compliance
certificate in the form attached hereto as Exhibit C signed by the chief
executive officer of the Borrower to the effect that to the best of the chief
executive officer's knowledge and belief no Default or Event of Default has
occurred during the period covered by such statements or, if any such Default or
Event of Default has occurred during such period, setting forth a description of
such Default or Event of Default and specifying the action, if any, taken by the
Borrower to remedy the same.
11
Section 7.6 Indebtedness for Borrowed Money. No Borrower will issue, incur,
assume, create or have outstanding any Indebtedness for Borrowed Money;
provided, however, that the foregoing provisions shall not restrict nor operate
to prevent:
(a) the indebtedness of the Borrower owing to the Lender hereunder;
(b) purchase money indebtedness for equipment and capitalized lease
obligations secured by Liens permitted by Section 7.7 hereof in an aggregate
amount not to exceed $1,500,000 at any one time outstanding;
(c) indebtedness of any Sub Company to FlexCheck;
Section 7.7 Liens. The Borrower will create, incur or permit to exist any
Lien of any kind on any Property owned by the Borrower; provided, however, that
this Section shall not apply to nor operate to prevent:
(a) the Liens granted in favor of the Lender by the Collateral Documents;
(b) Liens on Property of the Borrower created solely for the purpose of
securing indebtedness permitted by Section 7.6(b) hereof incurred to finance the
purchase price of Equipment, provided that no such Lien shall extend to or cover
other Equipment of the Borrower other than the respective Equipment so acquired,
and the original principal amount of the indebtedness secured by any such Lien
shall not exceed the original purchase price of such Equipment;
Section 7.8 Mergers, Consolidations and Sales. The Borrower will be a party
to any merger or consolidation, or sell, transfer, lease or otherwise dispose of
all or any substantial part of its Property, or in any event sell or discount
(with or without recourse) any of its notes or accounts receivable other than
any merger, consolidation with, or sale, transfer, lease or other disposition to
FlexCheck or any Sub Company. The sale, lease, transfer or other disposition of
5% of the assets of FlexCheck or any Sub Company shall be deemed substantial for
the foregoing purposes.
Section 7.9 ERISA. The Borrower will promptly pay and discharge all
obligations and liabilities arising under ERISA of a character which if unpaid
or unperformed might result in the imposition of a Lien against any of its
Properties. The Borrower will promptly notify the Lender of (i) the occurrence
of any reportable event (as defined in ERISA) with respect to a Plan, (ii)
receipt of any notice from the PBGC of its intention to seek termination of any
Plan or appointment of a trustee therefor, (iii) intention to terminate or
withdraw from any Plan, and (iv) the occurrence of any event with respect to any
Plan which would result in the incurrence by the Borrower of any material
liability, fine or penalty, or any material increase in the contingent liability
of the Borrower with respect to any post-retirement Welfare Plan benefit.
Section 7.10 Compliance with Laws. The Borrower will comply in all material
respects with the requirements of all federal, state and local laws, rules,
regulations, ordinances and orders applicable to or pertaining to the
Collateral, Properties or business operations of the Borrower. The Borrower
agrees, at intervals reasonably acceptable to the Lender, to make periodic
inspections of the documentation relating to consumer loans made or acquired by
12
it to monitor compliance of the same with applicable law and to provide the
Lender with the results of such inspections.
Section 7.11 Compensation and Employment Agreements of Key Management. The
Borrower shall not make any change in the compensation, provided that the
compensation of persons other than Xxxxxxx X. Xxxxxxxxx may be increased
annually by no more than five (5%) percent, or Employment Agreement of Xxxxxxx
X. Xxxxxxxxx, Xxxxxxx Xxxxxxxxx, Xxx Xxxxx Israel or any other key management
person designated by Lender without Lender's prior written consent.
Section 7.12 Maintenance of Sub Companies. FlexCheck will not assign, sell
or transfer ownership interest in a Sub Company.
Section 7.13 Change in the Nature of Business. The Borrower will not engage
in any business or activity other than payday lending.
Section 7.14 Commitments. The Borrower shall not enter into any contract or
make any commitment involving $50,000 in the aggregate or more without Lender's
prior written consent other than purchases and leases of furniture and equipment
for the opening of branches in the ordinary course of business.
Section 7.15 Dividends and Certain Other Restricted Payments. Neither
FlexCheck nor any Sub Company during any fiscal year shall (a) declare or pay
any dividends on or make any other distributions in respect of any class or
series of its capital stock or membership interests or (b) directly or
indirectly purchase, redeem or otherwise acquire or retire any of its capital
stock or membership interests, provided that distributions to Xxxxxxx X.
Xxxxxxxxx sufficient to allow him to satisfy his income tax liability on the
income of FlexCheck shall be permitted. Furthermore, Xxxxxxx X. Xxxxxxxxx shall
be entitled to annual distributions of up to ten (10%) percent of the Operating
Cash Flow for each calendar year to be paid within ninety (90) days after the
end of the calendar year.
Section 7.16 Sub Company Guaranties. No new Sub Company shall be formed
without Lender's prior written consent. Upon formation, each such new Company
shall execute a guaranty in form acceptable to Lender of all Obligations under
this Agreement.
Section 7.17 New Jurisdiction. The Borrower shall not commence business in
any state or jurisdiction other than South Carolina, Pennsylvania, Texas,
Virginia or Georgia without Lender's prior consent.
Section 7.18 Audits. The Borrower shall provide Lender and its
representatives with access to any and all books and records, Collateral and
Property during normal business hours for purposes of inspection and audit.
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SECTION 8. EVENTS OF DEFAULT AND REMEDIES
Section 8.1 Events of Default. Any one or more of the following shall
constitute an Event of Default hereunder:
(a) default in the payment when due of all or any part of the principal of
or interest on any Loan (whether at the stated maturity thereof or at any other
time provided for in this Agreement) or of any fee or other amount payable by
the Borrower hereunder or by the Borrower under any other Loan Document; or
(b) default in the observance or performance of any covenant set forth in
Section 7 hereof; or
(c) default in the observance or performance of any other provision hereof
or of any other Loan Document which is not remedied within thirty (30) days
after the earlier to occur of (i) the date on which such failure shall first
become known to any officer of the Borrower or (ii) the date on which written
notice thereof is given to the Borrower by the Lender; or
(d) any representation or warranty made by the Borrower herein or by the
Borrower in any other Loan Document, or in any statement or certificate
furnished by the Borrower pursuant hereto or thereto, or in connection with any
Loan made hereunder, proves untrue in any material respect as of the date of the
issuance or making thereof; or
(e) any event occurs or condition exists (other than those described in
clauses (a) through (d) above) which is specified as an Event of Default under
any Loan Document, or any Loan Document shall for any reason not be or shall
cease to be in full force and effect, or any Loan Document is declared to be
null and void or the Borrower shall attempt to terminate (other than pursuant to
Section 2.7 hereof) or contest in any manner the validity, binding nature or
enforceability of any Loan Document; or
(f) either (i) default shall occur under any evidence of Indebtedness for
Borrowed Money issued, assumed or guaranteed by the Borrower or any Sub Company
or under any indenture, agreement or other instrument under which the same may
be issued, and such default shall continue for a period of time sufficient to
permit the acceleration of the maturity of any such Indebtedness for Borrowed
Money (whether or not such maturity is in fact accelerated) or any such
Indebtedness for Borrowed Money shall not be paid when due (whether by lapse of
time, acceleration or otherwise); or
(g) any judgment or judgments, writ or writs, or warrant or warrants of
attachment, or any similar process or processes in an aggregate amount in excess
of $10,000 shall be entered or filed against the Borrower or any Sub Company or
against any of their Property, and in each case which remains unvacated,
unbonded, unstayed or unsatisfied for a period of thirty (30) days; or
(h) any of the issued and outstanding shares of capital stock or membership
interest if FlexCheck ceases at any time and for any reason (including death or
incapacity) to be owned, legally and beneficially, by Xxxxxxx X. Xxxxxxxxx or
Xxxxxxx X. Xxxxxxxxx ceases to be sole Manager and Member of FlexCheck, other
14
than by reason of Lender's exercise of its option to acquire a membership
interest in Borrower; or
(i) Xxxxxxx X. Xxxxxxxxx shall at any time and for any reason (including
death or incapacity) cease to be actively involved in the day-to-day management
of the Borrower; or
(j) the Borrower or any Sub Company shall fail to pay when due an amount or
amounts aggregating in excess $1,000 which it shall have become liable to pay to
the PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate
a Plan or Plans having aggregate Unfunded Vested Liabilities in excess of
$25,000 (collectively, a "Material Plan") shall be filed under Title IV of ERISA
by the Borrower or any other member of its Controlled Group, any plan
administrator or any combination of the foregoing; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate or to cause a trustee to be
appointed to administer any Material Plan or a proceeding shall be instituted by
a fiduciary of any Material Plan against the Borrower to enforce Section 515 or
4219(c)(5) of ERISA and such proceeding shall not have been dismissed within
thirty (30) days thereafter; or a condition shall exist by reason of which the
PBGC would be entitled to obtain a decree adjudicating that any Material Plan
must be terminated; or
(k) the Borrower or Sub Company shall (i) have entered involuntarily
against it an order for relief under the United States Bankruptcy Code, as
amended, (ii) not pay, or admit in writing its inability to pay, its debts
generally as they become due, (iii) make an assignment for the benefit of
creditors, (iv) apply for, seek, consent to, or acquiesce in, the appointment of
a receiver, custodian, trustee, examiner, liquidator or similar official for it
or any substantial part of its Property, (v) institute any proceeding seeking to
have entered against it an order for relief under the United States Bankruptcy
Code, as amended, to adjudicate it insolvent, or seeking dissolution, winding
up, liquidation, reorganization, arrangement, adjustment or composition of it or
its debts under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors or fail to file an answer or other pleading denying the
material allegations of any such proceeding filed against it, or (vi) fail to
contest in good faith any appointment or proceeding described in Section 8.1(l)
hereof; or
(l) a custodian, receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Borrower or any Sub Company or any
substantial part of any of their Property, or a proceeding described in Section
8.1(k)(v) shall be instituted against the Borrower and such appointment
continues undischarged or such proceeding continues undismissed or unstayed for
a period of thirty (30) days.
(m) default by any Sub Company under any term or condition of its guaranty
of Borrower's performance hereunder.
(n) Lender shall deem the ability of the Borrower or any Sub Company to
repay the Loan to be impaired and about to be impaired by reason of losses or
other material adverse conditions.
Section 8.2 Remedies - Other Events of Default. When any Event of Default
described in clauses (k) or (l) of Section 8.1 has occurred and is continuing,
then the Note, including both principal and interest, and all fees, charges and
15
other amounts payable hereunder and under the other Loan Documents, shall
immediately become due and payable without presentment, demand, protest or
notice of any kind, and the obligations of the Lender to extend further credit
pursuant to any of the terms hereof shall immediately terminate.
Section 8.3 Expenses. The Borrower agrees to pay to the Lender, or any
other holder of the Note, all costs and expenses incurred or paid by the Lender
or any such holder, including reasonable attorneys' fees and court costs, in
connection with any Default or Event of Default by the Borrower hereunder or in
connection with the enforcement of any of the terms hereof or of the other Loan
Documents.
SECTION 9. MISCELLANEOUS
Section 9.1 No Waiver of Rights. No delay or failure on the part of the
Lender or on the part of the holder or holders of the Note in the exercise of
any power or right shall operate as a waiver thereof, nor as an acquiescence in
any default, nor shall any single or partial exercise thereof preclude any other
or further exercise of any other power or right, and the rights and remedies
hereunder of the Lender and of the holder or holders of the Note are cumulative
to, and not exclusive of, any rights or remedies which any of them would
otherwise have.
Section 9.2 Non-Business Day. If any payment of principal or interest on
any Loan or of any fee hereunder shall fall due on a day which is not a Business
Day, interest at the rate such principal bears for the period prior to maturity
or at the rate such fee accrues shall continue to accrue from the stated due
date thereof to and including the next succeeding Business Day, on which the
same shall be payable.
Section 9.3 Documentary Taxes. The Borrower agrees to pay any documentary,
stamp or similar taxes payable in respect to this Agreement, the Note or any
other Loan Document, including interest and penalties, in the event any such
taxes are assessed irrespective of when such assessment is made and whether or
not any credit is then in use or available hereunder.
Section 9.4 Survival of Representations. All representations and warranties
made herein or in certificates given pursuant hereto shall survive the execution
and delivery of this Agreement and of the Note, and shall continue in full force
and effect with respect to the date as of which they were made as long as any
credit is in use or available hereunder.
Section 9.5 Survival of Indemnities. All indemnities with respect to the
Loans shall survive the termination of this Agreement and the payment of the
Loans and the Note.
Section 9.6 Notices. Except as otherwise specified herein, all notices
hereunder shall be in writing (including cable, telecopy or telex) and shall be
given to the relevant party at its address or telecopier number set forth below
or such other address, telecopier number or telex number as such party may
hereafter specify by notice to the other, given by United States certified or
registered mail, by telecopy or by other telecommunication device capable of
creating a written record of such notice and its receipt. Notices hereunder
shall be addressed to:
16
If to the Borrower:
------------------
FlexCheck Holdings LLC
00 Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Lender:
----------------
HomeGold Financial, Inc.
0000 Xxxxxxxxx Xxxxxx, Xxxxx X
Xxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
HomeGold Financial, Inc.
0000 Xxxxxxxxx Xxxxxx, Xxxxx X
Xxxxxxxx, X.X. 00000
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Each such notice, request or other communication shall be effective (i) if given
by telecopier, when such telecopy is transmitted to the telecopier number
specified in this Section and a confirmation of such telecopy has been received
by the sender, (ii) if given by mail, five (5) days after such communication is
deposited in the mail, certified or registered with return receipt requested,
addressed as aforesaid or (iii) if given by any other means, when delivered at
the addresses specified in this Section; provided that any notice given pursuant
to Section 2 hereof shall be effective only upon receipt.
Section 9.7 Counterparts. This Agreement may be executed in any number of
counterparts, and by the different parties on different counterparts, each of
which when executed shall be deemed an original but all such counterparts taken
together shall constitute one and the same instrument.
Section 9.8 Successors and Assigns. This Agreement shall be binding upon
the Borrower and its successors and assigns, and shall inure to the benefit of
the Lender and its successors and assigns, including any subsequent holder of
17
the Note; provided, however, that the Borrower may not assign any of its rights
or obligations hereunder without the written consent of the Lender.
Section 9.9 Amendments. Any provision of this Agreement, the Note or the
other Loan Documents may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower and the Lender.
Section 9.10 Fees and Indemnification. (a) The Borrower agrees to pay the
reasonable fees and disbursements of counsel to the Lender, in connection with
the preparation and execution of this Agreement and the other Loan Documents,
and any recording or filing of any of the foregoing, and any amendment, waiver
or consent related hereto, whether or not the transactions contemplated herein
are consummated. The Borrower further agrees to pay the Lender or any other
holder of the Obligations all costs and expenses (including court costs and
attorneys' fees) incurred or paid by the Lender or any other holder of the
Obligations in connection with any Default or Event of Default or in connection
with the enforcement of this Agreement or any other Loan Document or any other
instrument or document delivered thereunder.
(b) The Borrower further agrees to indemnify the Lender, its directors,
officers and employees against all losses, claims, damages, penalties,
judgments, liabilities and expenses (including, without limitations, all
reasonable expenses of litigation or preparation therefor whether or not the
Lender is a party thereto) which any of them may pay or incur arising out of or
relating to this Agreement, any other Loan Document, the Collateral transactions
contemplated hereby or thereby or the direct or indirect application or proposed
application of the proceeds of any Loan hereunder, other than those which arise
from the gross negligence or willful misconduct of the party claiming
indemnification. The obligations of the Borrower under this Section shall
survive the termination of this Agreement.
Section 9.11 Assignments. The Lender may, with the prior written consent of
the Borrower (which consent shall not be unreasonably withheld or delayed and,
in any event, shall not be required for an assignment by Lender to one of its
Affiliates) at any time assign and delegate to another financial institution or
other Person (any Person to which such an assignment and delegation is to be
made being herein called "Assignee") all of the Lenders' Loans provided that the
Borrower shall be entitled to continue to deal solely and directly with the
Lender in connection with the interests so assigned until the date when all of
the following conditions shall have been satisfied:
(i) one (1) Business Day shall have passed after written notice of
such assignment and delegation (together with payment instructions,
addresses and related information with respect to the Assignee) shall have
been given to the Borrower; and
(ii) the assigning Lender and the Assignee shall have executed and
delivered an Assignment Agreement and furnished a copy thereof to the
Borrower.
From and after the date on which the conditions described above have been met,
the Assignee shall be deemed automatically to have become party hereto and shall
have the rights and obligations of the Lender hereunder and the assigning Lender
shall be released from its obligations hereunder. Within five Business Days
18
after effectiveness of any assignment and delegation, the Borrower shall execute
and deliver to the Assignee Lender a new Note (such Note to be in exchange for,
but not in payment of, the predecessor Note held by the assigning Lender). Each
such Note shall be dated the effective date of such assignment. The assigning
Lender shall xxxx the predecessor Note "exchanged" and deliver it to the
Borrower. Accrued interest on the predecessor Note shall be paid as provided in
the Assignment Agreement. Within five Business Days after requested to do so,
Borrower shall also execute and deliver such UCC and other Collateral
assignments as may be requested by Assignee Lender on the assigning Lender.
Section 9.12 Governing Law. This Agreement and the Note, and the rights and
duties of the parties hereto and thereto, shall be construed and determined in
accordance with the laws of the State of South Carolina, without regard to the
internal laws thereof with respect to conflicts of law.
Section 9.13 Headings. Section headings used in this Agreement are for
reference only and shall not affect the construction of this Agreement.
Section 9.14 Entire Agreement. This Agreement constitutes the entire
understanding of the parties hereto with respect to the subject matter hereof
and any prior or contemporaneous agreements, whether written or oral, with
respect thereto are superseded hereby.
Section 9.15 Terms of Collateral Documents Not Superseded. Nothing
contained herein shall be deemed or construed to permit any act or omission
which is prohibited by the terms of any Collateral Document, the covenants and
agreements contained herein being in addition to and not in substitution for the
covenants and agreements contained in the Collateral Documents.
Section 9.16 Construction. The parties hereto acknowledge and agree that
this Agreement shall not be construed more in favor of one than the other based
upon which party drafted the same, it being acknowledged that all parties hereto
contributed substantially to the negotiation and preparation of this Agreement.
{SIGNATURES ON FOLLOWING PAGE]
19
Upon execution hereof by all the parties, this Agreement shall be a
contract among the parties for the purposes hereinabove set forth.
Dated as of January 18, 2002
HOMEGOLD FINANCIAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
FLEXCHECK HOLDINGS LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Sole Manager
20
EXHIBIT A
SECURED REVOLVING PROMISSORY NOTE
Ex. A-1
EXHIBIT B
SECURITY AGREEMENT
Ex. B-1
EXHIBIT C
COMPLIANCE CERTIFICATE
Ex. C-1
