<PAGE> 1
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-QSB
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended October 31, 1998
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from _____ to _____
Commission File No. 1-13919
PAWNMART, INC.
(Exact name of small business issuer as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 75-2520896
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
</TABLE>
301 COMMERCE STREET, SUITE 3600, FORT WORTH, TEXAS 76102
(Address of principal executive offices)
(817) 335-7296
(Issuer's telephone number)
Check whether the issuer (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes [X] No [ ]
The number of shares of Common Stock outstanding as of December 2, 1998 was
7,209,445. The number of Series A Redeemable Common Stock Purchase Warrants
outstanding as of December 2, 1998 was 1,380,000. The number Series B Redeemable
Common Stock Purchase Warrants outstanding as of December 2, 1998 was 1,380,000.
Transitional small business disclosure format (check one): Yes [ ] No [X]
<PAGE> 2
PART I. FINANCIAL INFORMATION
ITEM 1. CONSOLIDATED FINANCIAL STATEMENTS
PAWNMART, INC. AND SUBSIDIARIES
Consolidated Balance Sheets
(In thousands, except share and per share data)
<TABLE>
<CAPTION>
October 31, January 31,
1998 1998
----------- -----------
(Unaudited)
<S> <C> <C>
Assets
Current assets:
Cash and cash equivalents $ 178 $ 151
Accounts receivable 129 32
Pawn service charges receivable 299 233
Loans 2,958 2,421
Inventories, net 2,610 1,944
Prepaid expenses and other current assets 228 98
----------- -----------
Total current assets 6,402 4,879
----------- -----------
Property and equipment, net 1,720 802
Debt issuance costs, net 106 545
Other assets 179 451
----------- -----------
$ 8,407 $ 6,677
=========== ===========
Liabilities and Stockholders' Equity (Deficit)
Current liabilities:
Accounts payable and accrued liabilities $ 914 $ 1,051
Current installments of notes payable (note 2) 109 2,070
----------- -----------
Total current liabilities 1,023 3,121
----------- -----------
Long-term notes payable, net of current installments (notes 2 and 3) 1,600 9,778
----------- -----------
2,623 12,899
----------- -----------
Stockholders' equity (deficit) (note 2):
Preferred stock, $.01 par value; authorized 10,000,000 shares;
3,661,200 shares issued at January 31, 1998 -- 37
Common stock, $.01 par value; authorized 20,000,000 shares;
7,230,877 and 1,950,424 shares issued at October 31, 1998 and
January 31, 1998, respectively 72 19
Series A redeemable common stock purchase warrants, $0.125 par
value; 1,380,000 warrants issued and outstanding at October 31, 1998 173 --
Series B redeemable common stock purchase warrants, $0.0625 par
value; 1,380,000 warrants issued and outstanding at October 31, 1998 86 --
Additional paid-in capital 22,242 7,657
Preferred stock discount -- (674)
Accumulated deficit (16,719) (13,191)
----------- -----------
5,854 (6,152)
Less treasury stock, at cost; 21,432 common shares at October 31,
1998 and 13,189 common shares and 25,000 preferred shares at
January 31, 1998 (70) (70)
----------- -----------
Total stockholders' equity (deficit) 5,784 (6,222)
----------- -----------
$ 8,407 $ 6,677
=========== ===========
</TABLE>
See accompanying notes to consolidated financial statements.
2
<PAGE> 3
PAWNMART, INC. AND SUBSIDIARIES
Unaudited Consolidated Statements of Operations
(In thousands, except per share data)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
October 31, October 26, October 31, October 26,
1998 1997 1998 1997
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Revenues:
Merchandise sales $ 1,998 $ 1,890 $ 5,525 $ 4,972
Pawn service charges 887 732 2,438 2,106
Other 21 33 92 67
--------- --------- --------- ---------
Total revenues 2,906 2,655 8,055 7,145
Cost of sales 1,409 1,282 3,754 3,392
--------- --------- --------- ---------
1,497 1,373 4,301 3,753
--------- --------- --------- ---------
Expenses:
Store operating expenses 1,322 1,015 3,544 2,866
Corporate administrative expenses 785 523 2,308 1,510
Interest expense 35 482 866 1,356
Depreciation and amortization 161 121 419 377
--------- --------- --------- ---------
Total expenses 2,303 2,141 7,137 6,109
--------- --------- --------- ---------
Net loss (806) (768) (2,836) (2,356)
Preferred stock dividends -- -- 692 --
--------- --------- --------- ---------
Net loss to common
stockholders $ (806) $ (768) $ (3,528) $ (2,356)
========= ========= ========= =========
Loss per common share (note 4):
Basic $ (0.11) $ (0.41) $ (0.56) $ (1.27)
========= ========= ========= =========
Diluted $ (0.11) $ (0.41) $ (0.56) $ (1.27)
========= ========= ========= =========
</TABLE>
See accompanying notes to consolidated financial statements.
3
<PAGE> 4
PAWNMART, INC. AND SUBSIDIARIES
Unaudited Consolidated Statements of Cash Flows
(In thousands)
<TABLE>
<CAPTION>
Nine Months Nine Months
Ended Ended
October 31, October 26,
1998 1997
--------- ---------
<S> <C> <C>
Cash flows from operating activities:
Net loss $ (2,836) $ (2,356)
Adjustments to reconcile net loss to net cash used in operating activities:
Depreciation and amortization 419 377
Amortization of debt issuance costs 114 195
Amortization of debt discount 495 --
Common stock and preferred stock issued for services 200 29
Changes in operating assets and liabilities:
Accounts receivable (97) (15)
Pawn service charges receivable (66) (21)
Inventories (666) (257)
Prepaid expenses and other current assets (130) (159)
Other assets 226 (15)
Accounts payable and accrued liabilities (137) (712)
--------- ---------
Net cash used in operating activities (2,478) (2,934)
--------- ---------
Cash flows from investing activities:
Net increase in pawn loans (537) (198)
Purchases of property and equipment (1,291) (162)
--------- ---------
Net cash used in investing activities (1,828) (360)
--------- ---------
Cash flows from financing activities:
Proceeds from issuance of notes payable 2,166 2,589
Principal payments on notes payable (3,280) (107)
Net proceeds from issuance of common stock and warrants 5,583 3
Purchase of treasury stock -- (5)
Net proceeds from issuance of preferred stock -- 1,153
Payment of debt issuance costs (118) (252)
Preferred stock dividends paid (18) (33)
--------- ---------
Net cash provided by financing activities 4,333 3,348
--------- ---------
Net increase in cash and cash equivalents 27 54
Cash and cash equivalents at beginning of period 151 143
--------- ---------
Cash and cash equivalents at end of period $ 178 $ 197
========= =========
Supplemental disclosures of cash flow information -
Cash paid for interest $ 393 $ 1,132
========= =========
</TABLE>
Noncash Financing Activities:
On March 20, 1998, $9,520,000 in convertible subordinated debentures, net of
unamortized debt issuance costs of $443,000, were automatically converted into
2,380,000 shares of common stock and 3,661,200 shares of preferred stock were
automatically converted into 1,482,766 shares of common stock in connection with
the completion of the Company's initial public offering (note 2). During the
nine months ended October 31, 1998, the Company recognized $674,000 in preferred
stock dividends in connection with the amortization of preferred stock discounts
resulting from the preferred stock beneficial conversion feature. On May 1,
1998, the Company issued 44,445 shares of unregistered common stock to a
corporation in exchange for $200,000 in professional services associated with
marketing and new store site selection analysis.
See accompanying notes to consolidated financial statements.
4
<PAGE> 5
PAWNMART, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
(Unaudited)
(1) Basis of Presentation
The accompanying consolidated financial statements were prepared in
accordance with generally accepted accounting principles for interim
financial information and therefore do not include all disclosures
necessary for complete financial statements. In the opinion of
management, all adjustments have been made that are necessary for a fair
presentation of the financial position and results of operations and cash
flows as of and for the periods presented. All such adjustments are of a
normal recurring nature. Due to a change in the Company's fiscal year end
during January 1998, the financial results as of and for the three and
nine months ended October 26, 1997 end six days earlier than the
financial results as of and for the three and nine months ended October
31, 1998. The results of operations for the three and nine months ended
October 31, 1998 are not necessarily indicative of the results that may
be expected for the entire fiscal year or any other interim period.
The consolidated financial statements include the financial
statements of PawnMart, Inc. (the "Company") and its single purpose,
wholly owned subsidiaries PCI Finance 1994-I, Inc., PCI Finance 1995-I,
Inc., PCI Finance 1996-1, Inc., and PCI Finance 1996-2, Inc. All
significant intercompany balances and transactions have been eliminated
in consolidation. The consolidated financial statements should be read in
conjunction with the consolidated financial statements for the fiscal
year ended January 31, 1998 included in the Company's Form 10-KSB which
has been previously filed with the Securities and Exchange Commission.
(2) Completion of Initial Public Offering and Financial Restructuring
On March 20, 1998, the Company completed an initial public offering
of 1,200,000 shares of common stock at a price of $5.00 per share,
1,380,000 Series A redeemable common stock purchase warrants at a price
of $0.125 per warrant, and 1,380,000 Series B redeemable common stock
purchase warrants at a price of $0.0625 per warrant and, on April 17,
1998, the Company sold an additional 165,000 shares of common stock
pursuant to an over-allotment option resulting in total net proceeds to
the Company of approximately $5,583,000. Each Series A warrant and Series
B warrant entitles the holder to purchase one share of common stock at a
price of $6.00 per share and $8.00 per share, respectively, through March
17, 2003 and March 17, 2004.
In connection with the completion of the initial public offering,
$9,520,000 in aggregate principal amount of the Company's 14% convertible
subordinated debentures were automatically converted into 2,380,000
shares of common stock and 3,661,200 shares of preferred stock
automatically converted into an aggregate of 1,482,766 shares of common
stock. Through October 31, 1998, the Company had utilized $2,524,000 of
the net proceeds to repay certain notes payable.
(3) Revolving Credit Facility
On October 13, 1998, the Company entered into a $10 million revolving
credit facility with Comerica Bank (the "Credit Facility"). The Credit
Facility bears interest at either (i) the prevailing prime rate plus
.75%, which was 9.00% at October 31, 1998, or (ii) the prevailing LIBOR
rate plus 3.35%, and matures on October 13, 2001. Amounts available under
the Credit Facility are limited to certain percentages of pawn loans,
inventories, and pawn service charges receivable. The Credit Facility is
collateralized by substantially all of the unencumbered assets of the
Company. Under the Credit Facility, the Company is required to maintain
certain financial ratios and comply with certain technical covenants. The
Company was in compliance with these requirements and covenants during
the three months ended October 31, 1998. At October 31, 1998, $1,600,000
was outstanding under the Credit Facility.
5
<PAGE> 6
PAWNMART, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
(4) Net Loss Per Common Share
Net loss per common share is calculated as required by the Financial
Accounting Standards Board's Statement of Financial Accounting Standards
No. 128, "Earnings Per Share" (Statement No. 128). Statement No. 128
requires dual presentation of basic and diluted earnings per share and a
reconciliation between the two amounts. Basic earnings per share excludes
dilution, and diluted earnings per share reflects the potential dilution
that would occur if securities to issue common stock were exercised and
converted into common stock. In loss periods, dilutive common equivalent
shares are excluded as the effect would be antidilutive.
The following table presents a reconciliation between basic and
diluted weighted average common shares outstanding for the three and nine
months ended October 31, 1998 and October 26, 1997, respectively. Since
the effect of using the weighted average number of shares on a diluted
basis was antidilutive to the diluted loss per share calculation for the
three and nine months ended October 31, 1998 and October 26, 1997,
diluted loss per share was calculated using the same weighted average
number of common shares in the basic loss per share calculation.
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
(In Thousands) October 31, October 26, October 31, October 26,
1998 1997 1998 1997
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Weighted average shares - basic 7,209 1,893 6,272 1,856
Shares attributable to stock options,
warrants and convertible securities -- 3,838 679 3,508
-------- -------- -------- --------
Weighted average shares - diluted 7,209 5,731 6,951 5,364
======== ======== ======== ========
</TABLE>
6
<PAGE> 7
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATION
Statements appearing in the following discussion that are not historical
facts are forward-looking statements ("forward-looking statements") within the
meaning of Section 27A of the Securities Act of 1933, as amended, and Section
21E of the Securities and Exchange Act of 1934, as amended, which are intended
to be covered by the safe harbors created by those sections. Such
forward-looking statements are necessarily estimates reflecting the best
judgment of the Company's management based upon current information and involve
known and unknown risks, uncertainties and other factors which may cause the
actual results, performance or achievements of the Company, or industry results,
to be materially different from any future results, performance or achievements
expressed or implied by such forward-looking statements. Such risks,
uncertainties and other factors, include, but are not limited to, those set
forth and those appearing from time to time in filings made by the Company with
the Securities and Exchange Commission. These risks, uncertainties and other
factors should not be construed as exhaustive and the Company does not
undertake, and specifically disclaims any obligation, to update any
forward-looking statements to reflect occurrences or unanticipated events or
circumstances after the date of such statements.
In addition, the following discussion and analysis should be read in
conjunction with the Company's consolidated financial statements and notes
thereto and other financial data included in the Company's Form 10-KSB for the
fiscal year ended January 31, 1998.
GENERAL
PawnMart, Inc. (the "Company") is a financial services and specialty
retail enterprise principally engaged in establishing and operating stores which
advance money secured by the pledge of tangible personal property and sell
pre-owned merchandise to the value-conscious consumer. The Company generates
income in two ways: through collection of a monthly service charge from
advancing money to individuals based primarily upon the estimated resale value
of pledged personal property such as jewelry, consumer electronics, tools,
musical instruments, firearms, automobiles and other miscellaneous items and
through profit realized on the retail sale of the unredeemed or other purchased
pre-owned merchandise. As of December 2, 1998, the Company was one of five
publicly traded pawnshop operators in the United States, and it owned and
operated twenty-eight (28) stores located in Texas, Georgia, Alabama, North
Carolina, and South Carolina.
Expansion of Operations
With the completion of the Company's initial public offering and
financial restructuring in March 1998 (see "Item 1. Consolidated Financial
Statements"), the Company's strategic objective is to implement a rapid roll-out
of PAWNMART(SM) stores in order to capitalize upon growth opportunities afforded
by the highly fragmented pawnshop industry. To achieve its strategic objectives,
the Company has adopted the following strategy:
o Developing or Acquiring Stores That Meet Site Selection, Store Size
and Configuration Requirements in Selected Markets. The Company
believes that ideal site selection is one of the most critical
factors in creating a successful PAWNMART(SM) store. In this regard,
the Company has developed extensive customer demographics that
identify both its borrowing and retail customers. The Company,
therefore, believes that by opening new stores or by acquiring
existing stores only in stores meeting its demographic and site
selection requirements, it will be well situated to compete
effectively in the highly fragmented pawnshop industry. Second, the
Company believes that the "look and feel" of its stores is an
important factor in establishing a successful specialty retail store.
By opening new stores or acquiring existing stores only in accordance
with its specifications, the Company can ensure that each
PAWNMART(SM) has a similar "look and feel."
7
<PAGE> 8
o Market Positioning Strategy. The Company's strategy is to operate
attractive stores that are clean, well-lit and conveniently located,
with merchandise displayed in an organized and easy-to-shop manner,
similar to national discount stores. The Company's store design and
layout specifically target both its borrowing and retail customers.
o Utilize Targeted Database Marketing. The Company has developed a
targeted database marketing segmentation system that identifies the
customers for both pawn and product sales from proprietary data
collected at the store level. Given this customer information, the
Company has developed a marketing strategy that seeks to leverage its
understanding of customer demographics, motivations and purchasing
behavior. This demographic data will include utilizing direct
marketing for customer acquisition, retention and promotions, store
site selection, and for developing in store promotions.
o Expand in Metropolitan Areas in States With Favorable Pawn
Regulations. The Company's roll-out strategy is to generate operating
efficiencies by first expanding in the metropolitan areas of Atlanta,
Georgia, Mobile, Alabama and Charlotte, North Carolina, and
thereafter, in metropolitan areas in states with favorable pawn
regulations.
o Utilize Information Technology. The Company has developed
PAWNLINK(TM), a proprietary software system, which is connected to a
"wide area network" that allows for real-time point of sale
connectivity. PAWNLINK(TM) is a user friendly, menu driven software
package that operates in a Windows 95/98(TM) environment.
PAWNLINK(TM) interfaces with the Company's centralized database,
assists in determining the maximum amount of funds to advance on any
particular pawn item, and provides in-store assistance with
operational and sales management, inventory control and accounting.
o Operational Excellence. The Company believes that its success will be
substantially dependent on its ability to achieve excellence in
operating its stores. In this regard, the Company intends to
capitalize upon the operational expertise of its experienced
management team and board of directors, employ specialty retailers
and pawnbrokers as store management personnel, utilize extensive
training programs for employees and maintain effective extensive
operating controls.
Selected Financial Information
Selected elements of the Company's unaudited consolidated financial
statements are shown below for the three and nine months ended October 31, 1998
and October 26, 1997 as a percentage of total revenues.
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
October 31, October 26, October 31, October 26,
1998 1997 1998 1997
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Merchandise Sales........................... 68.8 % 71.2 % 68.6 % 69.6 %
Pawn Service Charges........................ 30.5 27.6 30.3 29.5
Other Income................................ 0.7 1.2 1.1 0.9
-------- -------- -------- --------
Total Revenues.............................. 100.0 100.0 100.0 100.0
Cost of Sales............................... 48.5 48.3 46.6 47.5
-------- -------- -------- --------
Gross Profit................................ 51.5 51.7 53.4 52.5
Store Operating Expenses.................... 45.5 38.2 44.0 40.1
-------- -------- -------- --------
Store Contribution.......................... 6.0 13.5 9.4 12.4
Corporate Administrative Expenses........... 27.0 19.7 28.6 21.1
Interest Expense............................ 1.2 18.1 10.8 19.0
Depreciation and Amortization............... 5.5 4.6 5.2 5.3
-------- -------- -------- --------
Net Loss.................................... (27.7)% (28.9)% (35.2)% (33.0)%
======== ======== ======== ========
</TABLE>
8
<PAGE> 9
RESULTS OF OPERATIONS
Nine Months Ended October 31, 1998 Compared to Nine Months Ended October 26,
1997
Total revenues increased 12.7% to $8,055,000 for the nine months ended
October 31, 1998 (the "Nine Month 1998 Period") as compared to $7,145,000 for
the nine months ended October 26, 1997 (the "Nine Month 1997 Period"). The
overall increase is attributable to a 8.5% increase in comparable store revenues
at stores opened 12 months or more as of October 31, 1998 ("Comparative Stores")
and revenues from five stores added during the Nine Month 1998 Period.
Merchandise sales increased 11.1% to $5,525,000 during the Nine Month
1998 Period from $4,972,000 during the Nine Month 1997 Period due to a 6.6%
increase in merchandise sales from Comparative Stores and merchandise sales from
five stores added during the Nine Month 1998 Period.
Pawn service charges increased 15.8% to $2,438,000 during the Nine Month
1998 Period from $2,106,000 during the Nine Month 1997 Period primarily due to a
13.7% increase in pawn service charges from Comparative Stores and pawn service
charges from five stores added during the Nine Month 1998 Period.
Gross profit as a percentage of total revenues increased 0.9% from 52.5%
during the Nine Month 1997 Period to 53.4% during the Nine Month 1998 Period
primarily due to improvements in shrinkage at the Company's stores and an
uninsured theft at one of the Company's stores during February 1997 which were
offset by lower gross margins on merchandise sales at five stores added during
the Nine Month 1998 Period. On a Comparative Store basis, gross profit as a
percentage of total revenues increased 1.2% from 52.5% during the Nine Month
1997 Period to 53.7% during the Nine Month 1998 Period. Excluding the uninsured
theft at one of the Company's stores during February 1997, the Company's
annualized inventory turnover rate was 2.2 times during the Nine Month 1998
Period compared to 2.1 times during the Nine Month 1997 Period. The Company
currently maintains theft insurance at all stores.
Store operating expenses increased 23.7% to $3,544,000 during the Nine
Month 1998 Period from $2,866,000 during the Nine Month 1997 Period primarily
due to increased labor at Comparative Stores to support increased store
activity, increased advertising expenses associated with the Company's marketing
programs and expenses attributable to five stores added during the Nine Month
1998 Period. On a Comparative Store basis, store operating expenses comprised
41.5% of total revenues during the Nine Month 1998 Period compared to 40.1% of
total revenues during the Nine Month 1997 Period.
Store contribution margin decreased 14.7% to $757,000 during the Nine
Month 1998 Period compared to $887,000 during the Nine Month 1997 Period
primarily due to the effects of planned start-up losses at five stores added
during the Nine Month 1998 Period and pre-opening expenses incurred at
additional stores scheduled for opening during the fourth quarter of the fiscal
year ending January 30, 1999 ("Fiscal 1998"). Excluding the effects of planned
start-up losses and pre-opening expenses, store contribution margin increased
6.7% to $946,000 during the Nine Month 1998 Period compared to $887,000 during
the Nine Month 1997 Period.
Corporate administrative expenses increased 52.8% to $2,308,000 during
the Nine Month 1998 Period from $1,510,000 during the Nine Month 1997 Period
primarily due to (i) the Company issuing 44,445 shares of unregistered common
stock in exchange for $200,000 in non-recurring professional fees associated
with marketing and store site selection ("Non-Recurring Professional Fees"),
(ii) increased labor costs associated with the hiring of manager trainees to
support store openings, (iii) increased labor costs associated with the hiring
of additional executive management to support planned growth, and (iv) increased
professional fees associated with human resource development and regulatory
matters. Since the Company has added five stores during the Nine Month 1998
Period and plans to add eight additional stores during the fourth quarter of
Fiscal 1998, management anticipates corporate administrative expenses to
decrease as a percentage of total revenues.
9
<PAGE> 10
Interest expense decreased 36.1% to $866,000 during the Nine Month 1998
Period from $1,356,000 during the Nine Month 1997 Period. The Nine Month 1998
Period includes $495,000 in non-cash non-recurring interest expense resulting
from the accounting treatment relating to the beneficial conversion feature
associated with the Company's convertible subordinated debentures ("Non-Cash
Non-Recurring Interest Expense") and $313,000 in interest expense which was
incurred by the Company related to debt that was either converted or repaid upon
completion of the Company's initial public offering ("Non-Recurring Interest
Expense"). See note 6 to the consolidated financial statements included in the
Company's Form 10-KSB for the year ended January 31, 1998 for a discussion of
the accounting treatment relating to the beneficial conversion feature
associated with the Company's convertible subordinated debentures. The Nine
Month 1997 Period included $1,337,000 in Non-Recurring Interest Expense.
During the Nine Month 1998 Period, the Company recognized $674,000 in
noncash non-recurring preferred stock dividends resulting from the accounting
treatment relating to the beneficial conversion feature associated with the
Company's convertible preferred stock and $18,000 in non-recurring preferred
stock dividends associated with the Company's 12% Series Convertible
Exchangeable Preferred stock (collectively, the "Non-Recurring Preferred
Dividends"). See note 9 to the consolidated financial statements included in the
Company's Form 10-KSB for the year ended January 31, 1998 for a discussion of
the accounting treatment relating to the beneficial conversion feature
associated with the Company's convertible preferred stock.
Net loss to common stockholders during the Nine Month 1998 Period was
$3,528,000, or $0.56 per basic and diluted share, compared to $2,356,000, or
$1.27 per basic and diluted share, during the Nine Month 1997 Period. Excluding
the Non-Recurring Professional Fees, Non-Cash Non-Recurring Interest Expense,
Non-Recurring Interest Expense, and Non-Recurring Preferred Dividends, net loss
to common stockholders during the Nine Month 1998 Period would have been
$1,828,000, or $0.29 per basic and diluted share, compared to $1,019,000, or
$0.55 per basic and diluted share, during the Nine Month 1997 Period.
Three Months Ended October 31, 1998 Compared to Three Months Ended October
26, 1997
Total revenues increased 9.5% to $2,906,000 for the three months ended
October 31, 1998 (the "Three Month 1998 Period") as compared to $2,655,000 for
the three months ended October 26, 1997 (the "Three Month 1997 Period"). The
overall increase is attributable to a 2.6% increase in revenues at Comparative
Stores and revenues from five stores added during Fiscal 1998.
Merchandise sales increased 5.7% to $1,998,000 during the Three Month
1998 Period from $1,890,000 during the Three Month 1997 Period due to sales
generated by five stores added during Fiscal 1998 which were offset by a 2.0%
decrease in merchandise sales from Comparative Stores. The decline in
merchandise sales at Comparative Stores was primarily due to (i) lower average
balances of inventory being maintained at Comparative Stores during the Three
Month 1998 Period and (ii) the closing of four of the Company's Comparative
Stores for several days during September 1998 due to Hurricane Georges. The
Company's renewed focus on its lending operations (discussed below) is expected
to lead to increased merchandise available for sale at Comparative Stores.
Pawn service charges increased 21.2% to $887,000 during the Three Month
1998 Period from $732,000 during the Three Month 1997 Period primarily due to a
16.4% increase in pawn service charges from Comparative Stores and pawn service
charges from five stores added during Fiscal 1998. The addition of Michael D.
Record as President in September 1998 has resulted in a renewed focus on the
Company's lending operations. As a result, pawn loans at Comparative Stores
increased from $2,426,000 at October 26, 1997 to $2,788,000 at October 31, 1998.
The Company expects pawn loans to continue to show improvement during the Fiscal
1998 fourth quarter leading to increased pawn service charges and merchandise
available for sale.
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<PAGE> 11
Gross profit as a percentage of total revenues decreased 0.2% from 51.7%
during the Three Month 1997 Period to 51.5% during the Three Month 1998 Period
primarily due to lower gross margins on merchandise sales at five stores added
during Fiscal 1998. On a Comparative Store basis, gross profit as a percentage
of total revenues increased 0.6% from 51.7% during the Three Month 1997 Period
to 52.3% during the Three Month 1998 Period. The Company's annualized inventory
turnover rate was 2.3 times during the Three Month 1998 Period compared to 2.4
times during the Three Month 1997 Period.
Store operating expenses increased 30.2% to $1,322,000 during the Three
Month 1998 Period from $1,015,000 during the Three Month 1997 Period primarily
due to increased labor at Comparative Stores to support increased store
activity, increased advertising expenses associated with the Company's marketing
programs and expenses attributable to five stores added during Fiscal 1998. On a
Comparative Store basis, store operating expenses comprised 40.9% of total
revenues during the Three Month 1998 Period compared to 38.2% of total revenues
during the Three Month 1997 Period.
Store contribution margin decreased 51.1% to $175,000 during the Three
Month 1998 Period compared to $358,000 during the Three Month 1997 Period
primarily due to the effects of planned start-up losses at five stores added
during the Fiscal 1998 and pre-opening expenses incurred at additional stores
scheduled for opening during the fourth quarter of Fiscal 1998. Excluding the
effects of planned start-up losses and pre-opening expenses, store contribution
margin decreased 13.7% to $309,000 during the Three Month 1998 Period compared
to $358,000 during the Three Month 1997 Period primarily due to increases in
Comparative Store operating expenses which were not offset by corresponding
increases in gross profit.
Corporate administrative expenses increased 50.1% to $785,000 during the
Three Month 1998 Period from $523,000 during the Three Month 1997 Period
primarily due to (i) increased labor costs associated with the hiring of manager
trainees to support store openings during the remainder of Fiscal 1998, (ii)
increased labor costs associated with additional district managers and inventory
acquisition personnel, (iii) increased labor costs associated with the hiring of
additional executive management to support planned growth, (iv) increased travel
expenses associated with store openings, and (v) increased professional fees
associated with regulatory matters.
Interest expense decreased 92.7% to $35,000 during the Three Month 1998
Period from $482,000 during the Three Month 1997 Period due to the repayment or
conversion of substantially all of the Company's debt upon completion of the
Company's initial public offering. Interest expense incurred during the Three
Month 1997 Period was related to Non-Recurring Interest Expense.
Net loss to common stockholders during the Three Month 1998 Period was
$806,000, or $0.11 per basic and diluted share, compared to $768,000, or $0.41
per basic and diluted share, during the Three Month 1997 Period. Excluding the
Non-Recurring Interest Expense, net loss to common stockholders during the Three
Month 1997 Period would have been $286,000, or $0.15 per basic and diluted
share.
11
<PAGE> 12
LIQUIDITY AND CAPITAL RESOURCES
At December 2, 1998, the Company operated twenty-eight (28) stores. Prior
to the completion of the Company's initial public offering on March 20, 1998,
the Company's operations were financed from funds generated from private debt
and equity offerings and funds generated from operations. On March 20, 1998, the
Company completed an initial public offering resulting in net proceeds to the
Company of approximately $5,583,000. See "Item 1. Consolidated Financial
Statements." In connection with the completion of the initial public offering,
$9,520,000 in aggregate principal amount of the Company's 14% convertible
subordinated debentures were automatically converted into 2,380,000 shares of
common stock and all classes of the Company's preferred stock were automatically
converted into an aggregate of 1,482,766 shares of common stock. Additionally,
the Company utilized $2,524,000 of the net proceeds to repay $2,142,000 in 15%
notes payable, $157,000 in notes payable to stockholders and $225,000 in notes
payable to the Company's Chief Executive Officer. The completion of the initial
public offering and the resulting financial restructuring have positioned the
Company with a capital structure that will allow its planned roll-out of
PAWNMART(SM) stores.
At October 31, 1998, the Company's primary sources of liquidity were
$178,000 in cash and cash equivalents, $299,000 in pawn service charges
receivable, $2,958,000 in loans, and $2,610,000 in inventories. The Company had
a current ratio of approximately 6.3 to 1.0 and 1.6 to 1.0 at October 31, 1998
and January 31, 1998, respectively. Net cash used in operating activities was
$2,478,000 during the Nine Month 1998 Period and $2,934,000 during the Nine
Month 1997 Period. Additionally, the Company had approximately $2,100,000
available under its Credit Facility (as defined below) at October 31, 1998.
The profitability and liquidity of the Company are affected by the amount
of loans outstanding, which is controlled in part by the Company's loan
decisions. The Company is able to influence the frequency of forfeiture of
collateral by increasing or decreasing the amount loaned in relation to the sale
value of the pledged property. Tighter credit decisions generally result in
smaller loans in relation to the estimated sale value to the pledged property
and can thereby decrease the Company's aggregate loan balance and, consequently,
decrease pawn service charges. Additionally, small loans in relation to the
pledged property's estimated sale value tend to slightly increase loan
redemptions and improve the Company's liquidity. Conversely, providing larger
loans in relation to the estimated sale value of the pledged property can result
in an increase in the Company's pawn service charge income. Larger average loan
balances can also result in a slight increase in loan forfeitures, which
increases the quantity of goods on hand and, unless the Company increases
inventory turnover, reduces the Company's liquidity. In addition to these
factors, liquidity is also affected by product sales and the pace of store
expansions.
The addition of Michael D. Record as President in September 1998 has
resulted in a renewed focus on the Company's lending operations. During the
Three Month 1998 Period, pawn loans increased $538,000 or 22.2% due to a
$410,000 or 17.2% increase in Comparative Store pawn loans and a $128,000
increase in pawn loans at stores opened during Fiscal 1998. The Company expects
pawn loan balances to continue to increase during the fourth quarter of Fiscal
1998 and plans to fund such growth with cash flows from operations and
borrowings under the Credit Facility (as defined below).
On October 13, 1998, the Company entered into a $10 million revolving
credit facility with Comerica Bank (the "Credit Facility"). The Credit Facility
bears interest at either (i) the prevailing prime rate plus .75%, which was
9.00% at October 31, 1998, or (ii) the prevailing LIBOR rate plus 3.35%, and
matures on October 13, 2001. Amounts available under the Credit Facility are
limited to certain percentages of pawn loans, inventories, and pawn service
charges receivable. The Credit Facility is collateralized by substantially all
of the unencumbered assets of the Company. Under the Credit Facility, the
Company is required to maintain certain financial ratios and comply with certain
technical covenants. The Company was in compliance with these requirements and
covenants during the three months ended October 31, 1998. At October 31, 1998,
$1,600,000 was outstanding under the Credit Facility and an additional
$2,100,000 was available to the Company pursuant to the available borrowing
base.
12
<PAGE> 13
The Company believes that its planned roll-out of PAWNMART(SM) stores
will be funded by borrowings under the Credit Facility, cash flows generated
from its established stores, and future debt or equity offerings. In addition to
the Credit Facility, the Company is working to finalize the terms of additional
financing necessary to complete its planned expansion during the next fiscal
year. However, no assurance can be made that the additional financing will be
obtained. In the event the Company does not obtain the additional financing, the
Company's planned roll-out of PAWNMART(SM) stores could be reduced or modified.
YEAR 2000 COMPLIANCE
The Year 2000 problem concerns the inability of information systems to
properly recognize date-sensitive information beyond January 1, 2000.
The Company has begun a project to bring software and systems into Year
2000 compliance in time to minimize any significant or detrimental effects on
operations. The project covers information systems, operating systems, other
non-financial systems equipment and significant third-party vendors. The Company
has adopted a five level process toward Year 2000 compliance: (1) awareness; (2)
assessment (identification of where failures may occur, solutions, workarounds,
and plans to repair or replace); (3) renovation (repair, replace or retire
systems that cannot properly process Year 2000 dates); (4) validation and (5)
implementation. At October 31, 1998, the first three levels have been
substantially completed, except for third parties as discussed below. The
Company expects to complete the remaining levels by June 30, 1999.
The Company is applying the five level process to both its information
technology ("IT") systems and non-IT systems. Computer equipment and software
commonly thought of as IT systems include point-of-sale, accounting, data
processing, telephone and other miscellaneous systems. Non-IT systems include
alarm systems, security observation equipment, HVAC units, fax machines, and
other miscellaneous systems. The Company believes that it has identified the
internal business systems that are susceptible to system failures or processing
errors as a result of the Year 2000 problem.
The Company's proprietary operating software system represents its only
critical internal business system. The proprietary operating software system had
been upgraded for Year 2000 compliance and is being tested. The vendors which
supply the Company with its accounting applications, payroll, and other
financial software systems have represented that their products are Year 2000
compliant. The Company has upgraded substantially all of its hardware to
mitigate Year 2000 problems from affecting its operations and anticipates
incurring approximately $30,000 to bring existing hardware into compliance.
The Company is reviewing the critical third parties which provide
services or goods which are essential to the Company's operations in order to
determine the extent to which the Company is subject to any failure by such
third parties to adequately address and resolve their respective Year 2000
problems. These third parties include financial institutions, utility suppliers,
and providers of communication services and equipment. In the event that the
Company is unable to obtain satisfactory assurance that a critical third party
provider has achieved Year 2000 compliance, and the Company is unable to replace
the provider with an alternative provider, the Company's operations could be
adversely impacted.
Based on the current status of the five level Year 2000 process and its
plan and timetable to complete its compliance program, the Company does not
foresee significant risks associated with the Year 2000 problem. However,
management believes that it is not possible to determine with complete certainty
that all Year 2000 problems affecting the Company have been identified or will
be corrected. In the event of a Year 2000 problem, management believes that the
Company could likely suffer a number of operational inconveniences and
inefficiencies for the Company and its customers that could divert management's
time and attention and financial and human resources from its ordinary business
activities.
13
<PAGE> 14
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS - None
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS - None
ITEM 3. DEFAULTS UPON SENIOR SECURITIES - None
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS - None
ITEM 5. OTHER INFORMATION - None
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) EXHIBITS
<TABLE>
<S> <C>
3.1 PawnMart, Inc.'s Restated and Amended Certificate of Incorporation(1)
3.2 PawnMart, Inc.'s Second Amended and Restated Bylaws(1)
4.1 Specimen Common Stock Certificate(2)
4.2 Specimen Series A Warrant Certificate(2)
4.3 Specimen Series B Warrant Certificate(2)
4.4 Form of Warrant Agreement(2)
4.5 Form of National Association of Securities Dealers, Inc. broker-dealer warrants(3)
10.1 Form of Indemnity Agreement with Officers and Directors of PawnMart, Inc.(2)
10.2 1997 PawnMart, Inc. Employee Stock Option Plan(1)
10.3 1997 PawnMart, Inc. Director Stock Option Plan(2)
10.4 Revolving Credit Agreement Dated October 13, 1998 Between PawnMart, Inc. and Comerica Bank(4)
27.1 Financial Data Schedule as of October 31, 1998 (Filed in EDGAR version only)(4)
</TABLE>
- ----------
(1) Filed as an Exhibit to the registrant's Registration Statement on Form
SB-2, filed on October 23, 1997 (File No. 333-38597).
(2) Filed as an Exhibit to the registrant's Registration Statement on
Amendment No. 2 to Form SB-2, filed on February 9, 1998 (File No.
333-38597).
(3) Filed as an Exhibit to the registrant's Registration Statement on
Amendment No. 3 to Form SB-2, filed on March 11, 1998 (File No.
333-38597).
(4) Filed herewith.
(b) REPORTS ON FORM 8-K: None
14
<PAGE> 15
SIGNATURES
In accordance with the requirements of the Exchange Act, the registrant
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
PAWNMART, INC.
<TABLE>
<S> <C> <C> <C>
By: /s/ Carson R. Thompson December 14, 1998 By: /s/ Thomas W. White December 14, 1998
------------------------ ----------------- ------------------------ -----------------
Carson R. Thompson Date Thomas W. White Date
Chief Executive Officer, Director Vice President - Finance
and Chairman of the Board and Chief Accounting Officer
</TABLE>
15
<PAGE> 16
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<S> <C>
3.1 PawnMart, Inc.'s Restated and Amended Certificate of Incorporation(1)
3.2 PawnMart, Inc.'s Second Amended and Restated Bylaws(1)
4.1 Specimen Common Stock Certificate(2)
4.2 Specimen Series A Warrant Certificate(2)
4.3 Specimen Series B Warrant Certificate(2)
4.4 Form of Warrant Agreement(2)
4.5 Form of National Association of Securities Dealers, Inc. broker-dealer warrants(3)
10.1 Form of Indemnity Agreement with Officers and Directors of PawnMart, Inc.(2)
10.2 1997 PawnMart, Inc. Employee Stock Option Plan(1)
10.3 1997 PawnMart, Inc. Director Stock Option Plan(2)
10.4 Revolving Credit Agreement Dated October 13, 1998 Between PawnMart, Inc. and Comerica Bank(4)
27.1 Financial Data Schedule as of October 31, 1998 (Filed in EDGAR version only)(4)
</TABLE>
- ----------
(1) Filed as an Exhibit to the registrant's Registration Statement on Form
SB-2, filed on October 23, 1997 (File No. 333-38597).
(2) Filed as an Exhibit to the registrant's Registration Statement on
Amendment No. 2 to Form SB-2, filed on February 9, 1998 (File No.
333-38597).
(3) Filed as an Exhibit to the registrant's Registration Statement on
Amendment No. 3 to Form SB-2, filed on March 11, 1998 (File No.
333-38597).
(4) Filed herewith.
<PAGE> 1
EXHIBIT 10.4
================================================================================
REVOLVING CREDIT AGREEMENT
DATED
OCTOBER 13, 1998
BETWEEN
PAWNMART, INC.
AND
COMERICA BANK
================================================================================
<PAGE> 2
LOAN AGREEMENT
THIS LOAN AGREEMENT made as of the 13th day of October, 1998, by and
between PAWNMART, INC. and COMERICA BANK.
WITNESSETH:
WHEREAS, the Borrower has requested Bank to make certain loans and
extensions of credit to Borrower; and
WHEREAS, the Bank is willing to do so subject to the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, the Borrower and the Bank agree:
SECTION I.
DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following respective meanings:
"Accounts," "Chattel Paper," "Documents," "Equipment,"
"Fixtures," "General Intangibles," "Goods," "Instruments" and "Inventory" shall
have the meanings assigned to them in the UCC.
"Accounts Receivable" shall mean and include all Accounts,
Chattel Paper and General Intangibles (including, but not limited to tax
refunds, trade names, trade styles and goodwill, trade marks, copyrights and
patents, and applications therefor, trade and proprietary secrets, formulae,
designs, blueprints and plans, customer lists, literary rights, licenses and
permits, receivables, insurance proceeds, beneficial interests in trusts and
minute books and other books and records) now owned or hereafter acquired by
Borrower.
"Affiliate" shall mean, when used with respect to any person,
any other person which, directly or indirectly, controls or is controlled by or
is under common control with such person. For purposes of this definition,
"control" (including the correlative meanings of the terms "controlled by" and
"under common control with"), with respect to any person, shall mean possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such person, whether through the ownership of voting
securities or by contract or otherwise.
"Agreement" shall mean this Agreement as amended from time to
time in accordance with the terms hereof.
"Applicable Interest Rate" shall mean the Eurodollar-based
Rate or the Prime-based Rate, as selected by Borrower from time to time or
otherwise determined pursuant to the terms and conditions of this Agreement.
"Bank" shall mean Comerica Bank, a Michigan banking
corporation.
"Bankruptcy Code" shall mean Title 11 of the United States
Code, as amended, or any successor act or code.
<PAGE> 3
"Borrowing Base Amount" shall mean, as of any date, an amount
equal to the sum of:
(a) seventy percent (70%) of the cost of Eligible
Principal Accounts; plus
(b) seventy percent (70%) of the positive difference (if
any) between (i) the Eligible Other Accounts and (ii)
the Reserve Amount as of the date of calculation;
plus
(c) seventy percent (70%) of Eligible Specified
Inventories; plus
(d) forty percent (40%) of Eligible Other Inventories.
"Borrower" shall mean PawnMart, Inc., a Delaware corporation.
"Business Day" shall mean any day on which Bank is open for
domestic business in Detroit and (when used in connection with any provision
regarding Eurodollar-based Loans) also a day on which commercial banks are open
for international business (including dealings in dollar deposits in the
interbank market) in Detroit and London.
"Collateral" shall mean all property of the Borrower now or
hereafter in the possession of the Bank or any Affiliate of the Bank (or as to
which the Bank or any Affiliate of the Bank now or hereafter controls possession
by documents or otherwise), all amounts in all deposit or other accounts
(including without limit an account evidenced by a certificate of deposit) of
the Borrower now or hereafter with the Bank or any Affiliate of the Bank and all
of Borrower's Accounts, Chattel Paper, Documents, Equipment, Fixtures, General
Intangibles, Goods, Instruments and Inventory, wherever located and whether now
owned or hereafter acquired, together with all replacements of any of the
foregoing, substitutions therefor, accessions thereto, and all proceeds and
products of all the foregoing, and all additional property (real or personal) of
the Borrower which is now or hereafter subject to a security interest, mortgage,
lien, claim or other encumbrance granted by the Borrower to, or in favor of, the
Bank.
"Commitment Amount" shall mean Ten Million Dollars
($10,000,000).
"Default" shall mean a condition or event which, with the
giving of notice or the passage of time, or both, would become an Event of
Default.
"Documents" shall mean this Agreement, the Note, the Security
Agreement, the Financing Statements and all other documents, agreements and
instruments delivered to Bank pursuant to this Agreement or any of the
foregoing.
"Eligible Account" shall mean outstanding amounts owing
pursuant, and evidenced by, a Pawn Ticket arising in the ordinary course of
Borrower's business which meets each of the following requirements:
(a) it is not owing to Borrower later than the Business
Day immediately following the ninetieth (90th) day
after the date of the Pawn Ticket evidencing such
account;
(b) it is secured pursuant to the relevant Pawn Ticket by
goods in the possession of Borrower or by a vehicle
for which Borrower holds a title certificate duly
endorsed for transfer;
-2-
<PAGE> 4
(c) the Pawn Ticket evidencing such Eligible Account has
been prominently marked "Collaterally Assigned to
Comerica Bank";
(d) it is a valid, legally enforceable obligation of the
debtor thereunder, and is not subject to any offset,
counterclaim or other defense on the part of such
debtor or to any claim on the part of such debtor
denying liability thereunder in whole or in part;
(e) it is not subject to any sale of accounts, any rights
of offset, assignment, lien or security interest
whatsoever other than to Bank;
(f) it is not owing by any debtor which is not a natural
person;
(g) it is not owing by a debtor for which Borrower has
received a notice of: (i) the death or incompetence
of the debtor (ii) the appointment of a receiver for
any part of the property of the debtor, or (iii) an
assignment for the benefit of creditors, the filing
of a petition under or the commencement of any
proceeding under, any Bankruptcy Laws by or against
the debtor.
An Account Receivable which is at any time an Eligible
Account, but which subsequently fails to meet any of the foregoing requirements,
shall forthwith cease to be an Eligible Account.
"Eligible Other Account" shall mean, with respect to any
Eligible Account, as of any date, the amounts accrued and owing to Borrower
under the related Pawn Ticket for fees and interest.
"Eligible Principal Account" shall mean, with respect to any
Eligible Account, the portion thereof which represents the cash loan or advance
made by Borrower to its customer evidenced by the Pawn Ticket related thereto.
"Eligible Inventory" shall mean all of Borrower's Inventory
which is in good and merchantable condition, excluding:
(a) Inventory which is not at a Location;
(b) Inventory covered by or subject to a seller's right
to repurchase, or any consensual or nonconsensual
lien or security interest (including without
limitation purchase money security interests) other
than those granted in favor of Bank or hereafter
consented to by Bank;
(c) Inventory which is in repair, or on police hold; and
(d) Inventory which has been owned by Borrower in excess
of eighteen (18) months.
Inventory shall be valued at of cost (which cost shall be deemed to be (i) in
the case of items acquired pursuant to unpaid Pawn Tickets, the principal amount
originally evidenced by such Pawn Ticket and advanced to Borrower's customer
with respect to such inventory, and (ii) in the case of any item on lay away,
net of any deposits or lay away payments made on the item) and Inventory which
is at any time Eligible Inventory, but which subsequently fails to meet any of
the foregoing requirements, shall forthwith cease to be Eligible Inventory.
-3-
<PAGE> 5
"Eligible Other Inventory" shall mean Eligible Inventory which
is not Eligible Specified Inventory.
"Eligible Specified Inventory" shall mean firearms, gold,
jewelry, power tools and equipment and titled vehicles which are Eligible
Inventory.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974 as amended, or any successor act or code.
"Eurodollar-based Loan" shall mean a Loan at any time during
which such Loan bears interest at a Eurodollar-based Rate.
"Eurodollar-based Rate" shall mean a per annum interest rate
equal to the Eurodollar Rate, plus three and thirty five one hundredths percent
(3.35%) per annum.
"Eurodollar Rate" shall mean, for any Eurodollar-based Loan:
(a) the per annum interest rate at which the Bank's
eurodollar lending office offers deposits in
eurodollars to prime banks in the eurodollar market
in an amount comparable to the relevant
Eurodollar-based Loan and for a period equal to the
Interest Period therefore at approximately 11:00 a.m.
Detroit time two (2) Business Days prior to the first
day of such Interest Period; divided by,
(b) a percentage (expressed as a decimal) equal to one
hundred percent (100%) minus that percentage which is
in effect on the date for an Advance of a
Eurodollar-based Loan, as prescribed by the Board of
Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve
requirements for a member bank of the Federal Reserve
System with deposits exceeding five billion dollars
in respect of "Euro-currency Liabilities" (or in
respect of any other category of liabilities which
includes deposits by reference to which the interest
rate on Eurodollar-based Loans is determined or any
category of extensions of credit or other assets
which includes loans by a non-United States
Eurodollar Lending Office of such a bank to United
States residents).
"Event of Default" shall mean any of those conditions or
events listed in Section 8.1 of this Agreement.
"Existing Loan" shall mean that certain loan to Borrower from
"The BRIT 1992 Trust" evidenced by two promissory notes of Borrower made as of
January 9, 1998 and February 24, 1998, respectively in the respective face
amount of $250,000 and $100,000.
"Financial Statements" shall mean all historical balance
sheets and earnings statements and other financial data which have been
furnished to the Bank for the purposes of, or in connection with, this Agreement
and the transactions contemplated hereby, including without limit balance
sheets, statements of income, retained earnings and cash flow, and all
footnotes.
"Financing Statements" shall mean UCC financing statements
describing the Bank as secured party and the Borrower as debtor covering the
Collateral and otherwise in such form, for filing in such jurisdictions and with
such filing offices, as the Bank shall reasonably deem necessary or advisable.
-4-
<PAGE> 6
"GAAP" shall mean, as of any applicable date of determination,
generally accepted accounting principles consistently applied in the country of
incorporation of the relevant Person.
"Indebtedness" shall mean all loans, advances, indebtedness,
obligations and liabilities of the Borrower to the Bank under the Notes, this
Agreement and the Documents, together with all other indebtedness, obligations
and liabilities whatsoever of the Borrower to the Bank, whether matured or
unmatured, liquidated or unliquidated, direct or indirect, absolute or
contingent, joint or several, due or to become due, now existing or hereafter
arising.
"Interest Period" shall mean an interest period for a
Eurodollar-based Loan of one (1), three (3), or six (6) months, provided
however, that:
(a) any Interest Period which would otherwise end on a
day which is not a Business Day shall be extended to
the next succeeding Business Day unless the next
succeeding Business Day falls in another calendar
month, in which case, such Interest Period shall end
on the immediately preceding Business Day; and
(b) no Interest Period may end after the Maturity Date.
"Legal Rate" shall mean at the particular time in question the
maximum rate of interest which, under applicable law, the Bank is then permitted
to charge on the Indebtedness. If the maximum rate of interest which, under
applicable law, the Bank is permitted to charge on the Indebtedness shall change
after the date hereof, the Legal Rate shall be automatically increased or
decreased, as the case may be, from time to time as of the effective time of
each change in the Legal Rate without notice to the Borrower. For purposes of
determining the Legal Rate under the Applicable Law of the State of Texas, the
applicable rate ceiling shall be (a) the indicated rate ceiling described in and
computed in accordance with the provisions of Section (a) (I) of Art. 1.04, or
(b) if the parties subsequently contract as allowed by applicable law, the
quarterly ceiling or the annualized ceiling computed pursuant to Section (d) of
Art. 1.04; provided, however, that at any time the indicated rate ceiling, the
quarterly ceiling of the annualized ceiling shall be less than 18% per annum or
more than 24% per annum, the provisions of Sections (b)(1) and (2) of said Art.
1.04 shall control for purposes of such determination, as applicable.
"Loan" shall mean, individually and/or collectively as the
context may require, the Advances evidenced by the Note.
"Location" shall mean each of the Borrower's locations for
transacting business and each additional Location for the transaction of
business hereafter acquired or opened by Borrower in accordance with Sections
6.4 and 7.10 hereof.
"Maturity Date" shall mean October 13, 2001.
"Net Worth" shall mean, as of the date of any determination
thereof, the sum of Borrower's shareholders' equity, determined in accordance
with GAAP plus the principal amount of any Subordinate Debt then outstanding.
"Note" shall mean the promissory note executed and delivered
by Borrower to Bank pursuant to Section 2.3 of this Agreement in the form of
Exhibit "A" to this Agreement.
"Pawn Ticket" shall mean, for each is Eligible Account, a duly
executed and completed pawn ticket.
-5-
<PAGE> 7
"PBGC" shall mean the Pension Benefit Guaranty Corporation or
any person succeeding to the present powers and functions of the Pension Benefit
Guaranty Corporation.
"Permitted Liens" shall mean:
(a) Liens and encumbrances in favor of the Bank;
(b) Liens for taxes, assessments or other governmental
charges incurred in the ordinary course of business
and for which no interest, late charge or penalty is
attaching or which is being contested in good faith
by appropriate proceedings and, if requested by the
Bank, bonded in an amount and manner satisfactory to
the Bank;
(c) Liens, not delinquent, created by statute in
connection with worker's compensation, unemployment
insurance, social security and similar statutory
obligations;
(d) Liens of mechanics, materialmen, carriers,
warehousemen or other like statutory or common law
liens securing obligations incurred in good faith in
the ordinary course of business that are not yet due
and payable; and
(e) Encumbrances consisting of existing or future zoning
restrictions, existing recorded rights-of-way,
existing recorded easements, existing recorded
private restrictions or existing or future public
restrictions on the use of real property, none of
which materially impairs the use of such property in
the operation of the business for which it is used
and none of which is violated in any material respect
by any existing or proposed structure or land use;
and
(f) Purchase money security interests securing
indebtedness or lease obligations incurred in
connection with Borrower's purchases or leases of
fixed assets, to the extent that the aggregate amount
of such obligations at any time outstanding does not
excess One Hundred Thousand Dollars ($100,000).
"Person" or "person" shall mean any individual, corporation,
partnership, joint venture, association, trust, unincorporated association,
joint stock company, government, municipality, political subdivision or agency,
or other entity.
"Prime-based Loan" shall mean a Loan at any time during such
Loan bears interest at a Prime-based Rate.
"Prime-based Rate" shall mean the Prime Rate in effect from
time to time plus three-fourths percent (3/4%).
"Prime Rate" shall mean that annual rate of interest
designated by the Bank as its prime rate, which rate may not be the lowest rate
of interest charged by the Bank to any of its customers, and which rate is
changed by the Bank from time to time.
"Reserve Amount" shall mean, as of the date of any calculation
thereof, the amount determined by multiplying:
(a) total Eligible Other Accounts as of determination by
-6-
<PAGE> 8
(b) the percentage of the amount of Borrower's accounts
evidenced by Pawn Tickets which were forfeited to
Borrower in the quarter preceding the date of
calculation.
"Request for Loan" shall mean a request for loan delivered by
Borrower to Bank in the form of Exhibit "B" to this Agreement, pursuant to
Section 2.2 of this Agreement.
"Revolving Maximum" shall mean, as of any date, the lesser of:
(a) the Commitment Amount, or (b) the Borrowing Base Amount.
"Security Agreements" shall mean the Security Agreement by
Borrower pursuant to which the Borrower grants to the Bank a first priority
security interest in all Accounts, Chattel Paper, Documents, Equipment,
Fixtures, General Intangibles, Goods, Instruments and Inventory, Machinery and
Equipment of the Borrower, wherever located and whether now owned or hereafter
acquired, together with all replacements thereof, substitutions therefor,
accessions thereto and all proceeds and products of all the foregoing.
"Subordinate Debt" shall mean indebtedness of Borrower payment
of which, and any security for which, is made subordinate to Borrower's
indebtedness to Bank and liens and security interests granted to Bank pursuant
to a written subordination agreement in form and context satisfactory to Bank.
"Store Contribution" shall mean for any Location, total store
revenues generated at such Location less direct operating expenses for such
Location determined in a manner consistent with those used by Borrower in
preparation of its Securities and Exchange Commission filings and press releases
as of the date of this Agreement.
"UCC" shall mean the Uniform Commercial Code in effect with
respect to the jurisdictions of the various Locations.
1.2 Accounting Terms. All accounting terms not specifically
defined in this Agreement shall be construed in accordance with GAAP.
1.3 Singular and Plural. Where the context herein requires, the
singular number shall be deemed to include the plural, the masculine gender
shall include the feminine and neuter genders, and vice versa.
SECTION 2.
COMMITMENT, INTEREST AND FEES
2.1 Loans. Subject to the terms and conditions of this Agreement,
the Bank agrees to make Advances to the Borrower from the date hereof until the
Maturity Date, in aggregate principal amount at any time outstanding not to
exceed the Revolving Maximum.
2.2 Requests for Loans. Borrower may request An Advance by
delivery to Bank of a Request for Loan executed by an authorized officer
Borrower and subject to the following:
i. each such Request for Loan shall set forth the
information required on the Request for Loan form;
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ii. each such Request for Loan shall be delivered to Bank
by 10:00 a.m. three (3) Business Days prior to the
proposed date of Advance, except if the Applicable
Interest Rate for such Advance is to be the
Prime-based Rate, such Request for Loan must be
delivered by 10:00 a.m. (Detroit time) on such
proposed date;
iii. if the Request for Loan is a request for a
Eurodollar-based Loan, the principal amount of the
Advance requested shall be at least Five Hundred
Thousand Dollars ($500,000) or an integral multiple
thereof; and
iv. each Request for Loan shall constitute a
certification by the Borrower as of the date thereof
that all of the conditions set forth in Article 4
hereof are satisfied as of the date of such request
and shall be satisfied as of the date such Advance is
requested.
2.3 Note. The Revolving Loan shall be evidenced by a Note in the form
of Exhibit "A" hereto executed by Borrower.
2.4 Payments of Principal. The principal of the Note shall be payable
(unless sooner accelerated pursuant to the terms of this Agreement) on the
Maturity Date, when the entire balance then outstanding and all accrued and
unpaid interest thereon, shall be due and payable.
2.5 Interest. The principal balance of each Advance from time to time
outstanding under each Note shall bear interest at its Applicable Interest Rate.
Interest shall be payable on all Prime-based Advances, monthly, on the first
Business Day of each month. Interest shall be payable on each Eurodollar-based
Advance on the last day of its Interest Period and, if such Interest Period has
a duration of longer than three (3) months, also at each three month interval
from the first day of such interest period.
2.6 Preparation and Closing Fees. Simultaneously with the execution of
this Agreement, the Borrower shall pay to the Bank:
(a) the amount of the expenses (including without limit
reasonable attorneys' fees, whether of inside or
outside counsel, and disbursements) incurred by the
Bank in connection with the preparation and closing
of this Agreement and related instruments and/or
making of advances hereunder, including but not
limited to costs to conduct audits, monitoring and
appraisals; and
(b) a non-refundable closing fee in the amount of One
Hundred Thousand Dollars ($100,000).
Bank acknowledges the payment by Borrower of Twenty Five Thousand
Dollars ($25,000) to Bank, which amount was paid to Bank prior to the date
hereof and which will be credited against Borrower's obligations under this
Section 2.6 upon closing.
2.7 Commitment Fees., Borrower shall pay Bank monthly, on the first
Business Day of each month, a commitment fee in the amount equal to the one-half
percent (1/2%) per annum on the average daily amount by which the Commitment
Amount exceeded the principal amount of outstanding Advances during the
preceding month.
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2.8 Basis of Computation. The amount of all interest and fees hereunder
shall be computed for the actual number of days elapsed on the basis of a year
consisting of three hundred sixty (360) days.
2.9 Basis of Payments. All sums payable by the Borrower to the Bank
under this Agreement or the other documents contemplated hereby shall be paid
directly to the Bank at its office set forth in Section 9.10 hereof in
immediately available United States funds, without set off, deduction or
counterclaim. Borrower hereby authorizes and request Bank to Debit Borrower's
checking or deposit or other accounts with the Bank for all or a part of any
such amounts when due, provided, however, that this authorization shall not
affect the Borrower's obligation to pay, when due, any Indebtedness whether or
not account balances are sufficient to pay amounts due.
2.10 Receipt of Payments. Any payment of the Indebtedness made by mail
will be deemed tendered and received only upon actual receipt by the Bank at the
address designated for such payment, whether or not the Bank has authorized
payment by mail or any other manner, and shall not be deemed to have been made
in a timely manner unless received on the date due for such payment, time being
of the essence. The Borrower expressly assumes all risks of loss or liability
resulting from non-delivery or delay of delivery of any item of payment
transmitted by mail or in any other manner. Acceptance by the Bank of any
payment in an amount less than the amount then due shall be deemed an acceptance
on account only.
2.11 Default Interest. Notwithstanding anything herein to the contrary,
in the event and so long as an Event of Default shall exist, all principal
outstanding under the Note shall bear interest, payable on demand, from the date
of such Event of Default at a rate per annum equal to:
i. in the case of a Prime-based Loan, three percent (3%)
above the Prime-base Rate; and
ii. in the case of a Eurodollar-based Loan, three percent
(3%) above the Eurodollar-based Rate until the end of
the then current Interest Period, at which time such
Eurodollar-based Loans shall be automatically
converted into Prime-based Loans and bear interest at
the rate provided for in clause (a) above.
2.12 Conversion and Renewal of Loans. Providing that no Event of
Default shall have occurred and be continuing, the Borrower may elect to renew
or convert Applicable Interest Rates applicable to Advances from the Prime-based
Rate to the Eurodollar-based Rate or from the Eurodollar-based Rate to the
Prime-based Rate, provided that any conversion of a Eurodollar-based Loan shall
be made only on the last Business Day of the Interest Period applicable to such
Eurodollar-based Loan. If the Borrower desires such a renewal or conversion, it
shall give Bank not less than three (3) Business Days' prior notice in the
manner provided in Section 2.2 hereof, specifying the date of such renewal or
conversion, the Advances to be converted and the type of Advances elected. If
with respect to any Eurodollar-based Loan outstanding at any time the Bank does
not receive notice of the election from a Borrower not less than three (3)
Business Days prior to the last day of the Interest Period therefor, the
Borrower shall be deemed to have elected to convert such Eurodollar-based Loan
to a Prime-based Loan at the end of the then current Interest Period unless such
Eurodollar-based Loan is repaid upon the last day of such Interest Period.
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<PAGE> 11
2.13 Early Termination Compensation. In the event that Borrower shall
terminate this Agreement on or before the second anniversary hereof, Borrower
shall be obligated to pay to Bank, as a condition to such termination and prior
to the release of Bank's liens and encumbrances, the amount of: (a) Three
Hundred Thousand Dollars ($300,000) if such termination occurs before the first
anniversary hereof; or (b) Two Hundred Thousand Dollars ($200,000) if such
termination occurs on or after the first anniversary hereof but before the
second anniversary of this Agreement.
SECTION 3.
SPECIAL PROVISIONS FOR EURODOLLAR-BASED LOANS
3.1 Reimbursement of Prepayment Costs. As to any Advances, if any
prepayment thereof shall occur on any day other than the last day of an Interest
Period (in the case of a Euro dollar-based Loan) or the first day of an Interest
Period (with regard to a Prime-Based Loan) (whether pursuant to this Article, or
by acceleration, or otherwise), or if an Applicable Interest Rate shall be
changed during any Interest Period pursuant to this Article, the Borrower agrees
to reimburse Bank any costs incurred by Bank as a result of the timing thereof
including but not limited to any net costs incurred in liquidating or employing
deposits from third parties, upon Bank's delivery to Borrower of a certificate
setting forth in reasonable detail the basis for determining such costs, which
certificate shall be conclusively presumed correct save for manifest error.
3.2 Eurodollar Lending Office. For any Advance for which the Applicable
Interest Rate is the Eurodollar-based Rate, if Bank shall designate a eurodollar
lending office which maintains books separate from those of the rest of Bank,
Bank shall have the option of maintaining and carrying the relevant advance on
the books of such office.
3.3 Circumstances Affecting Eurodollar-based Availability. If Bank
determines that, by reason of circumstances affecting the foreign exchange and
interbank markets generally, deposits in eurodollars in the applicable amounts
are not being offered to Bank for an Interest Period, then Bank shall forthwith
give notice thereof to the Borrower. Thereafter, the obligation of Bank to make
Eurodollar-based Loans, and the right of Borrower to convert an Advance to or
refund an Advance as a Eurodollar-based Loan shall be suspended and all of the
Loans shall be Prime-based Loans bearing interest at the Prime-based Rate until
the Bank notifies Borrower that such circumstance no longer exists.
3.4 Laws Affecting Eurodollar-based Loan Availability. If, after the
date hereof, the introduction of, or any change in, any applicable law, rule or
regulation or in the interpretation or administration thereof by any
governmental authority charged with the interpretation or administration
thereof, or compliance by Bank (or its eurodollar lending offices) with any
request or directive (whether or not having the force of law) of any such
authority, shall make it unlawful or impossible for Bank to honor its
obligations hereunder to make or maintain any Advance with interest at the
Eurodollar-based Rate, Bank shall forthwith give notice thereof to Borrower.
Thereafter: (a) the obligations to make Eurodollar-based Loans and the right of
Borrower to convert an Advance or refund an Advance as a Eurodollar-based Loan
shall be suspended; and (b) if Bank may not lawfully continue to maintain a
Eurodollar-based Loan to the end of the then current Interest Period, the
Prime-based Rate shall be the Applicable Interest Rate for such Eurodollar-based
Loan for the remainder of such Interest Period.
3.5 Increased Costs. In the event that any change after the date hereof
in applicable law, treaty or governmental regulation, or in the interpretation
or application thereof, or compliance by Bank with any request or directive
(whether or not having the force of law) from any central bank or other
financial, monetary or other authority:
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<PAGE> 12
i. shall subject Bank (or its eurodollar lending office)
to any tax, duty or other charge with respect to any
Advance or shall change the basis of taxation of
payments to Bank (or its eurodollar lending office)
of the principal of or interest on any Advance or any
other amounts due under this Agreement (except for
changes in the rate of tax on the overall net income
or gross receipts of Bank or its eurodollar lending
office imposed by the jurisdiction in which Bank's
principal executive office or eurodollar lending
office is located); or
ii. shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the
Board of Governors of the Federal Reserve System but
excluding with respect to any Eurodollar-based Loan
any such requirement included in an applicable
Eurodollar Reserve Requirement), special deposit, or
similar requirement against assets of, deposits with
or for the account of, or credit extended by Bank (or
its eurodollar lending offices) or shall impose on
Bank (or its eurodollar lending offices) or the
foreign exchange and interbank markets or other
condition affecting any Advance or any commitment of
Bank under this Agreement;
and the result of any of the foregoing is to increase the cost to Bank of
making, renewing or maintaining any Advance or its commitments hereunder or to
reduce the amount or rate of return on any sum received or receivable by Bank
under this Agreement, or under any Note, then Bank may promptly notify Borrower
of such fact and demand compensation therefor and Borrower agrees to pay to Bank
(so long as such event or circumstance continues to exist) such additional
amount or amounts as will compensate Bank for such increased costs or reduced
return within thirty (30) days of such notice; provided, however that, to the
extent doing so would eliminate or decrease Borrower's liability for increased
costs hereunder, and to the extent that doing so would not otherwise be
disadvantageous to Bank, Bank will attempt to designate a eurodollar lending
office for which the tax, duty, reserve, deposit requirement, or other
circumstance giving rise to Bank's demand for increased compensation, is not
applicable. A certificate of the Bank demanding such compensation setting forth
in reasonable detail the basis for determining such additional amount or amounts
necessary to compensate shall be conclusively presumed to be correct save for
manifest error.
SECTION 4.
CONDITIONS PRECEDENT TO OBLIGATIONS OF BANK
The obligations of the Bank under this Agreement are subject to the
satisfaction of each of the following conditions:
4.1 Documents Executed and Filed. The Borrower shall have executed (or
caused to be executed) and delivered to the Bank and, as appropriate, there
shall have been filed or recorded with such filing or recording offices as the
Bank shall deem appropriate, the following:
(a) The Note;
(b) The Security Agreements;
(c) The Financing Statements;
(d) Acknowledgements of Borrower's landlords with respect
to each Location, together with true copies of each
Lease for such Locations.
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4.2 Certified Resolutions. The Borrower shall have furnished to the
Bank a copy of resolutions of the Board of Directors of the Borrower authorizing
the execution, delivery and performance of this Agreement, the borrowing
hereunder, the Note and the Documents to which Borrower is party, which shall
have been certified by the Secretary or Assistant Secretary of the Borrower as
being complete, accurate and in effect.
4.3 Certified Articles. The Borrower shall have furnished to the Bank a
copy of the Articles of Incorporation including all amendments thereto and
restatements thereof, and all other charter documents of the Borrower, which
shall have been certified by the jurisdiction of organization of the respective
parties thereto.
4.4 Certified Bylaws. The Borrower shall have furnished to the Bank a
copy of the Bylaws of the Borrower, including all amendments thereto and
restatements thereof, which shall have been certified by the Secretary or
Assistant Secretary of the Borrower, as being complete, accurate and in effect.
4.5 Certificate of Good Standing. The Borrower shall have furnished to
the Bank a certificates of good standing with respect to the Borrower certified
by the Secretary of State for the State of Alabama, Delaware, Georgia, North
Carolina, South Carolina, and Texas.
4.6 Certificate of Incumbency. The Borrower shall have furnished to the
Bank a certificate of the Secretary or Assistant Secretary of the Borrower, as
to the incumbency and signatures of the officers of the Borrower signing this
Agreement, the Note and Documents.
4.7 UCC Lien Search. The Bank shall have received UCC record and copy
searches, evidencing the appropriate filing and recording of the Financing
Statements and disclosing no notice of any liens or encumbrances filed against
any of the Collateral.
4.8 Casualty Insurance. The Borrower shall have furnished to the Bank,
in form, content and amounts and with companies satisfactory to the Bank,
casualty insurance policies with loss payable clauses in favor of the Bank,
relating to the assets and properties (including, but not limited to, the
Collateral) of the Borrower.
4.9 Opinion of Counsel. Borrower shall have caused its legal counsel to
deliver to Bank a legal opinion covering such matters as Bank shall require, and
otherwise in form and content satisfactory to Bank.
4.10 Existing Loan. Borrower shall have caused to be delivered to Bank
such evidence as Bank shall require that any liens securing the Existing Loan
shall be released and discharged as of the date of closing.
4.11 Approval of Bank Counsel. All actions, proceedings, instruments
and documents required to carry out the transactions contemplated by this
Agreement or incidental thereto and all other related legal matters shall have
been satisfactory to and approved by legal counsel for the Bank, and said
counsel shall have been furnished with such certified copies of actions and
proceedings and such other instruments and documents as they shall have
reasonably requested.
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SECTION 5.
WARRANTIES AND REPRESENTATIONS
On a continuing basis from the date of this Agreement until the
Indebtedness is paid in full and the Borrower has performed all of its other
obligations hereunder, the Borrower represents and warrants that:
5.1 Corporate Existence and Power. (a) The Borrower is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware; (b) it has the power and authority to own its properties and
assets and to carry out its business as now being conducted and is qualified to
do business and in good standing in every jurisdiction wherein such
qualification is necessary and (c) the Borrower has the power and authority to
execute, deliver and perform this Agreement, to borrow money in accordance with
its terms, to execute, deliver and perform the Note and other Documents to which
it is party and to grant to the Bank liens and security interests in the
Collateral as hereby contemplated and to do any and all other things required of
it hereunder.
5.2 Authorization and Approvals. The execution, delivery and
performance of this Agreement, the borrowings hereunder and the execution,
delivery and performance of the Note, the other Documents: (a) have been duly
authorized by all requisite corporate action of the Borrower (b) except for UCC
filings, do not require registration with or consent or approval of, or other
action by, any federal, state or other governmental authority or regulatory
body, (c) will not violate any provision of law, any order of any court or other
agency of government, the Certificate of Incorporation or Bylaws of the
Borrower, any provision of any indenture, note, agreement or other instrument to
which any of them are a party, or by which any of their properties or assets are
bound, (d) will not be in conflict with, result in a breach of or constitute
(with or without notice or passage of time) a default under any such indenture,
note, agreement or other instrument, and (e) will not result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon any
of the properties or assets of the Borrower, other than in favor of the Bank and
as contemplated hereby.
5.3 Valid and Binding Agreement. This Agreement and the Documents will
be, when delivered, valid and binding obligations of the Borrower, in accordance
with its respective terms except to the extent enforceability thereof may be
limited under applicable bankruptcy, moratorium, insolvency, rearrangement,
reorganization or similar debtor relief laws affecting the rights of creditors
generally from time to time in effect.
5.4 Actions, Suits or Proceedings. There are no actions, suits or
proceedings, at law or in equity, and no proceedings before any arbitrator or by
or before any governmental commission, board, bureau, or other administrative
agency, pending, or, to the best knowledge of the Borrower, threatened against
or affecting the Borrower or any properties or rights of the Borrower which, if
adversely determined, could materially impair the right of it to carry on its
business substantially as now conducted or could have a material adverse effect
upon its financial condition.
5.5 No Liens, Pledges, Mortgage or Security Interests. Except for
Permitted Liens none of the Borrower's assets and properties, including without
limit the Collateral, are subject to any mortgage, pledge, lien, security
interest or other encumbrances of any kind or character other than in favor of
Bank and Permitted Liens.
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<PAGE> 15
5.6 Accounting Principles. All consolidated and consolidating balance
sheets, earnings statements and other historical financial data furnished to the
Bank for the purposes of, or in connection with, this Agreement and the
transactions contemplated by this Agreement, have been prepared in accordance
with GAAP, and do or will fairly present the financial condition of the
Borrower, as of the dates, and the results of its operations for the periods,
for which the same are furnished to the Bank. Without limiting the generality of
the foregoing, the annual and quarterly Financial Statements have been prepared
in accordance with GAAP (except as disclosed therein) and the monthly Financial
Statements have been prepared in a manner consistent with the calculations used
in quarterly Financial Statements, and all of them fairly present the financial
condition of the Borrower as of the dates, and the results of its operations for
the fiscal periods, for which the same are furnished to the Bank. The Borrower
has no material contingent obligations, liabilities for taxes, long-term leases
or unusual forward or long-term commitments not disclosed by, or reserved
against in, the Financial Statements.
5.7 Financial Condition. The Borrower is solvent, able to pay its
respective debts as they mature, has capital sufficient to carry on its business
and has assets the fair market value of which exceed its liabilities, and the
Borrower will not be rendered insolvent, under-capitalized or unable to pay
maturing debts by the execution or performance of this Agreement or the other
documents contemplated hereby. There has been no material adverse change in the
business, properties or condition (financial or otherwise) of the Borrower since
the date of the latest of the Financial Statements.
5.8 Taxes. The Borrower has filed by the due date therefor all federal,
state and local tax returns and other reports it is required by law to file, has
paid or caused to be paid all taxes, assessments and other governmental charges
that are shown to be due and payable under such returns, and has made adequate
provision for the payment of such taxes, assessments or other governmental
charges which have accrued but are not yet payable except to the extent such
taxes have been adequately reserved against by Borrower and the delay in payment
thereof will not result in imposition of penalties in excess of Fifteen Thousand
Dollars ($15,000). The Borrower has no knowledge of any deficiency or assessment
in connection with any taxes, assessments or other governmental charges not
adequately disclosed in the Financial Statements.
5.9 Compliance with Laws. The Borrower has complied with all applicable
laws, to the extent that failure to comply would materially interfere with the
conduct of the business of the Borrower as presently conducted.
5.10 Indebtedness. Except as permitted under Section 7.4 hereof, the
Borrower has no indebtedness for money borrowed or any direct or indirect
obligations under any leases (whether or not required to be capitalized under
GAAP) or any agreements of guarantee or surety except for the endorsement of
negotiable instruments by the Borrower in the ordinary course of business for
deposit or collection.
5.11 Material Agreements. Borrower has no material leases, contracts or
commitments of any kind (including, without limitation, employment agreements,
collective bargaining agreements, powers of attorney, distribution contracts,
patent or trademark licenses, bonus, pension and retirement plans, or accrued
vacation pay, insurance and welfare agreements); to the best knowledge of
Borrower, all parties to such agreements have complied with the provisions of
such leases, contracts or commitments; and to the best knowledge of the
Borrower, no party to such agreements is in default thereunder, nor has there
occurred any event which with notice or the passage of time, or both, would
constitute such a default.
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<PAGE> 16
5.12 Margin Stock. The Borrower is not engaged principally, or as one
of its important activities, in the business of extending credit for the purpose
of purchasing or carrying any "margin stock" within the meaning of Regulation U
of the Board of Governors of the Federal Reserve System, and no part of the
proceeds of any Loan hereunder will be used, directly or indirectly, to purchase
or carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
5.13 Pension Funding. The Borrower has not incurred any accumulated
funding deficiency within the meaning of ERISA or incurred any liability to the
PBGC in connection with any employee benefit plan established or maintained by
the Borrower and no reportable event or prohibited transaction, as defined in
ERISA, has occurred with respect to such plans.
5.14 Misrepresentation. No warranty or representation by the Borrower
contained herein or in any certificate or other document furnished by the
Borrower pursuant hereto contains any untrue statement of material fact or omits
to state a material fact necessary to make such warranty or representation not
misleading in light of the circumstances under which it was made.
5.15 Hazardous Materials Warranties, Representations and Covenants.
(a) Borrower is not party to any litigation or administrative
proceeding, nor so far as is known by Borrower, is any
litigation or administrative proceeding threatened against
it, which in either case (a) asserts or alleges that
Borrower violated any federal, state or local laws,
ordinances, statutes, rules, regulations or judgments
governing the use, storage, transportation, or disposal of
Hazardous Materials ("Environmental Laws"), (b) asserts or
alleges that Borrower is required to clean up, remove, or
take remedial or other response action due to the disposal,
depositing discharge, leaking or other release of any
Hazardous Materials, (c) asserts or alleges that Borrower is
required to pay all or a portion of the cost of any past,
present, or future clean up, removal or remedial or other
response action which arises out of or is related to the
disposal, depositing, discharge, leaking or other release of
any Hazardous Material by any one of them.
(b) To the best knowledge of Borrower, there are no conditions
existing currently or likely to exist during the term of
this Agreement which would subject the Borrower to damages,
penalties, injunctive relief or clean up costs under any
Environmental Laws or which require or are likely to require
clean up, removal, remedial action or other response
pursuant to Environmental Laws by Borrower.
(c) The Borrower is not subject to any judgment, decree, order
or citation related to or arising under the Environmental
Laws and Borrower has not received any notice
("Environmental Complaint") of any violations of
Environmental Laws (and, within five days of receipt of any
Environmental Complaint the Borrower shall deliver to the
Bank a copy thereof), and to the best of Borrower's
knowledge, there have been no actions commenced or
threatened by any party for noncompliance with any
Environmental Laws.
(d) The Borrower has all permits, licenses, approvals and other
authorizations required under the Environmental Laws.
(e) The Borrower covenants and agrees that it shall not use,
introduce or maintain Hazardous Materials in any premises
which they may from time to time occupy other than in strict
accordance and compliance with Environmental Laws.
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<PAGE> 17
(f) Borrower agrees that it shall promptly notify Bank in
writing as soon as Borrower becomes aware of any condition
or circumstance which makes the environmental warranties,
representations and covenants contained herein incomplete or
inaccurate in any material respect as of any date.
(g) In the event of any condition or circumstance that makes any
environmental representation, warranty or covenant
incomplete or inaccurate in any material respect as of any
date, Borrower shall, at the request of Bank, at the sole
expense of Borrower, retain an environmental consultant
acceptable to Bank, to conduct a thorough and complete
environmental assessment in respect of any environmental
concerns of Bank arising from that changed condition or
circumstance. A copy of said assessment will be addressed to
Bank and promptly delivered to Bank, Borrower upon
completion.
(h) In the event of a violation of Environmental Laws, whether
discovered pursuant to an environmental consultant's
assessment or otherwise, Borrower covenants and agrees to
complete all investigations, studies, sampling and testing,
and all remedial, removal and other actions necessary to
clean up and remove all Hazardous Materials on or affecting
premises or property occupied or used by Borrower, whether
caused by the Borrower or a third party, in accordance with
Environmental Laws to the satisfaction of Bank, and in
accordance with the directives of all federal, state, and
local governmental authorities.
(i) At any time Borrower, directly or indirectly through any
professional consultant or other representative, determines
to undertake an environmental audit, assessment or
investigation, Borrower shall promptly provide Bank with
written notice of the initiation of the environmental
audit/assessment, fully describing the purpose and intended
scope of the said audit/assessment. Upon receipt, Borrower
shall promptly provide Bank copies of all final findings and
conclusions of any such environmental investigation.
Preliminary findings and conclusions shall be provided if
final reports have not been completed and delivered to Bank
within sixty days following completion of the preliminary
findings and conclusions.
(j) Borrower hereby indemnifies, saves and holds Bank and any of
its past, present and future officers, directors,
shareholders, employees, representatives and consultants
harmless from any and all loss damages, suits, penalties,
costs, liabilities and expenses (including, but not limited
to reasonable investigation, environmental audit(s), and
legal expenses), arising out of any claim, loss or damages
of any property, injuries to or death of persons,
contamination of or adverse effects on the environment, or
any violation of any Environmental Laws, caused by or in any
way related to the real property of Borrower, or due to any
acts of Borrower or its officers, directors, shareholders,
employees, consultants and/or representatives; provided,
however, that the foregoing indemnifications shall not be
applicable when arising from events or conditions occurring
while the Bank is in sole possession (subject to the rights
of any creditors of Borrower) of the real property of
Borrower. In no event shall Borrower be liable hereunder for
any loss, damages, suits, penalties, costs, liabilities or
expenses arising solely from any act or willful misconduct
or gross negligence of Bank or its agents or employees. It
is expressly agreed and understood by Borrower that the
indemnifications granted herein are intended to protect
Bank, its past, present and
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<PAGE> 18
future officers, directors, shareholders, employees,
consultants and representatives from any claims that may
arise by reason of any security interest, liens and/or
mortgages granted to Bank, or under any other document or
agreement given to secure repayment of the Indebtedness,
whether or not such claims arise before or after Bank has
foreclosed upon and/or otherwise becomes the owner of any
such property, real or personal. All obligations of
indemnity as provided hereunder shall be supported and
secured by any Documents executed by Borrower in favor of
Bank. The indemnifications contained herein extend to
shareholders of Bank qua shareholders only, and nothing
contained herein shall be construed to prevent Borrower from
asserting any claim whatsoever against any party or entity
that occasions any adverse environmental effects or any
violation of any Environmental Laws upon or in any way
related to the real property of Borrower, whether or not
such party or entity is a shareholder of Bank.
(k) In the event any mortgage securing the Indebtedness is
foreclosed or the Borrower tenders a deed in lieu of
foreclosure, the Borrower shall deliver the premises to the
Bank free of any and all Hazardous Materials to the extent
necessary so that the condition of the premises shall not be
a violation of any Environmental Laws.
(l) The provisions of this section shall be in addition to any
and all other obligations and liabilities the Borrower may
have to the Bank at common law or pursuant to any other
agreement and shall survive (i) the repayment of the
Indebtedness, (ii) the satisfaction of all of the other
obligations of the Borrower hereunder and under the other
Documents, (iii) the discharge of the Mortgage, and (iv) the
foreclosure of the Mortgages or acceptance of a deed in lieu
thereof.
(m) "Hazardous Materials" includes, without limitation, any
flammable explosives, radioactive materials, hazardous
materials, hazardous wastes, hazardous or toxic substances
or related materials defined in the Comprehensive
Environmental Response, Compensation and Liability Act of
1980, as amended (42 U.S.C. Sections 9601, et seq.), the
Hazardous Materials Transportation Act, as amended (49
U.S.C. Sections 1801, et seq.), the Resource Conservation
and Recovery Act, as amended (42 U.S.C. Sections 6901, et
seq.) and in the regulations adopted and publications
promulgated pursuant thereto, or any other federal, state or
local governmental law, ordinance, rule, or regulation.
SECTION 6.
AFFIRMATIVE COVENANTS
On a continuing basis from the date of this Agreement until the
Indebtedness is paid in full and the Borrower has performed all of its other
obligations hereunder, the Borrower covenants and agrees that it will:
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6.1 Financial and Other Information.
6.1.1 Annual Financial Reports. Furnish to the Bank, in form
and reporting basis satisfactory to the Bank, not later than one hundred twenty
(120) days after the close of each fiscal year of the Borrower, financial
statements of the Borrower containing the balance sheet of the Borrower of the
close of each such fiscal year, statements of income and retained earnings and a
statement of cash flows for each such fiscal year, and such other comments and
financial details as are usually included in similar reports. Such reports shall
be prepared in accordance with GAAP by independent certified public accountants
of recognized standing selected by the Borrower and acceptable to the Bank and
shall contain unqualified opinions as to the fairness of the statements therein
contained. These statements shall be prepared on an audited basis.
6.1.2 Monthly Financial Statements. Furnish to the Bank not
later than forty five (45) days after the end of the third, sixth and ninth
month of each fiscal year, or thirty (30) days after the close of each other
month of each fiscal year of the Borrower, unaudited financial statements on a
consolidated basis containing the balance sheet of the Borrower as of the end of
each such period, statements of income and retained earnings of the Borrower and
a statement of cash flows of the Borrower for the portion of the fiscal year up
to the end of such period, and such other comments and financial details as are
usually included in similar reports. The statements shall be in such detail as
the Bank may reasonably require, and the accuracy of the statements shall be
certified by the chief executive or financial officer of the Borrower.
6.1.3 No Default Certificate. Together with each delivery of
the financial statements required by Sections 6.1.1 and 6.1.2 of this Agreement,
furnish to the Bank a certificate of its chief executive or financial officer
stating that no Event of Default or Default has occurred, or if any such Event
of Default or Default exists, stating the nature thereof, the period of
existence thereof and what action the Borrower proposes to take with respect
thereto.
6.1.4 Accounts. Furnish to Bank not later than ten (10) days
after and as of the end of each month, agings of the Accounts and a schedule
identifying each Eligible Account and identifying for each Eligible Account, the
portions thereof which constitute Eligible Principal Accounts and Eligible Other
Accounts. Any such schedule, certificate or report shall be executed by a duly
authorized officer of Borrower and shall be in such form and detail as Bank may
specify.
6.1.5 Inventory Reports. Furnish to Bank not later than three
(3) days after and as of the end of each week, reports as to the amount of
Eligible Inventory. The report shall be executed by a duly authorized officer of
Borrower and shall be in such form and detail as Bank may specify.
6.1.6 Borrowing Base Report. Furnish to the Bank not later
than three (3) days after and as of the end of each week, in form, content, and
reporting basis satisfactory to the Bank, a Borrowing Base report.
6.1.7 Reports Filed with the SEC. Furnish to the Bank copies
of all reports and information filings by Borrower required by the Securities
and Exchange Commission ("SEC") on or before the statutory filing date.
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6.1.8 Annual Financial Projections. Furnish to the Bank, in
form and reporting basis satisfactory to the Bank, not later than thirty (30)
days prior to the commencement of each fiscal year of the Borrower, projected
financial statements of the Borrower containing the balance sheet of the
Borrower of the beginning of each such fiscal year, statements of income and
retained earnings and a statement of cash flows for each such fiscal year, and
such other comments and financial details as are usually included in similar
reports prepared by management of Borrower utilizing their then current
knowledge and reasonable expectations with respect to the periods covered
thereby.
6.1.9 Adverse Events. Promptly inform the Bank of the
occurrence of any Event of Default or Default, or of any other occurrence which
has or could reasonably be expected to have a materially adverse effect upon the
Borrower's business, properties, or financial condition or upon the Borrower's
ability to comply with its obligations under the Documents.
6.1.10 Other Information As Requested. Promptly furnish to the
Bank such other information regarding the operations, business affairs and
financial condition of the Borrower and its subsidiaries as the Bank may
reasonably request from time to time and permit the Bank, its employees,
attorneys and agents, upon 72 hours prior notice (except in case of emergency or
during the existence of an Event of Default) to inspect all of the books,
records and properties of the Borrower and its subsidiaries during normal
business hours.
6.2 Compliance with Borrowing Formula. In the event that at any
time, the aggregate principal amount of Advances exceeds the Revolving Maximum,
immediately pay to Bank for application against such Advances, an amount
sufficient to eliminate such excess.
6.3 Store Contribution. Maintain, as of the end of each fiscal
month an aggregate Store Contribution for Locations which have been open (as of
the date of calculation) twelve (12) months or more, of not less than ten
percent (10%) of the aggregate of all such Location's total store revenues for
the most recent six (6) months, provided however, that in determining compliance
with this Section 6.3, with respect to any Location which has been open more
than 12 but less than 18 months as of the date of any calculation, such
Location's store revenues and Store Contributions shall only be included with
respect to the whole months in excess of 12 months that such Location has been
open.
6.4 New Subsidiaries and Locations. Cause each subsidiary of
Borrower now or hereafter owned or acquired by Bank which Bank determines (in
its sole discretion) to have significant assets or revenues, to guaranty the
obligations of Borrower to Bank and to secure such guaranty with liens upon and
security interests in all such subsidiary's assets, and, with respect to each
Location hereafter acquired or opened by Borrower, provide Bank with such
Financing Statements, Landlord acknowledgements and other documents as Bank
shall require in connection therewith.
6.5 Insurance. Keep its insurable properties (including but not
limited to the Collateral) adequately insured and maintain (a) insurance
against fire and other risks customarily insured against under an "all-risk"
policy and such additional risks customarily insured against by companies
engaged in the same or a similar business to that of the Borrower, (b) necessary
worker's compensation insurance, (c) public liability and product liability
insurance, and (d) such other insurance as may be required by law or as may be
reasonably required in writing by the Bank, all of which Insurance shall be in
such amounts, containing such terms, in such form, for such purposes, prepaid
for such time period, and written by such companies as shall be satisfactory to
the Bank. All such policies shall contain a provision whereby they may not be
canceled or amended except upon thirty (30) days' prior written notice to the
Bank. The Borrower will promptly deliver to the Bank, at the Bank's request,
evidence satisfactory to the Bank that such insurance has been so procured and,
with respect to casualty insurance, made payable to the Bank. If the Borrower
fails to maintain satisfactory insurance as herein provided, the Bank shall have
the option to
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<PAGE> 21
do so, and the Borrower agrees to repay the Bank upon demand, with interest at
the Prime-based Rate then in effect for the Revolving, all amounts so expended
by the Bank. The Borrower hereby appoints the Bank or any employee or agent of
the Bank as the Borrower's attorney-in-fact, which appointment is coupled with
an interest and irrevocable, and authorizes the Bank or any employee or agent of
the Bank, on behalf of the Borrower, to adjust and compromise any loss under
said insurance and to endorse any check or draft payable to the Borrower in
connection with returned or unearned premiums on said insurance or the proceeds
of said insurance, and any amount so collected shall be applied toward repair
and/or replacement of the Collateral to which such casualty occurred or
satisfaction of the Indebtedness in accordance in accordance with the provisions
governing such application in the Documents pursuant to which Bank's Liens on
such Collateral were granted.
6.6 Taxes. Pay in accordance with commercially reasonable
practices and within the time that they can be paid without late charge, penalty
or interest all taxes, assessments and similar imposts and charges of every kind
and nature lawfully levied, assessed or imposed upon the Borrower, and its
property, except to the extent being contested in good faith and, if requested
by the Bank, bonded in an amount and manner satisfactory to the Bank. If the
Borrower shall fail to pay such taxes and assessments within the time they can
be paid without penalty, late charge or interest the Bank shall have the option
to do so, and the Borrower agrees to repay the Bank upon demand, with interest
at the Prime-based Rate from time to time in effect under the Revolving Note,
all amounts so expended by the Bank.
6.7 Maintain Corporation and Business. Do or cause to be done all
things necessary to preserve and keep in full force and effect the Borrower's
corporate existence, and material rights and franchises and comply with all
material respects with applicable laws, continue to conduct and operate its
business substantially as conducted and operated during the present and
preceding calendar year, at all times maintain, preserve and protect all
material franchises and trade names and property and keep the same in good
repair, working order and condition, and from time to time make, or cause to be
made, all needed and proper repairs, renewals, replacements, betterments and
improvements thereto so that the business carried on in connection therewith may
be properly and advantageously conducted at all times.
6.8 ERISA. (a) At all times meet the minimum funding requirements
of ERISA with respect to the Borrower's employee benefit plans subject to ERISA,
(b) promptly after the Borrower knows or has reason to know (i) of the
occurrence of any event, which would constitute a reportable event or prohibited
transaction under ERISA, or (ii) that the PBGC or the Borrower has instituted or
will institute proceedings to terminate an employee pension plan, deliver to the
Bank a certificate of the chief financial officer of the Borrower setting forth
details as to such event or proceedings and the action which the Borrower
proposes to take with respect thereto, together with a copy of any notice of
such event which may be required to be filed with the PBGC, and (c) furnish to
the Bank (or cause the plan administrator to furnish the Bank) a copy of the
annual return (including all schedules and attachments) for each plan covered by
ERISA, and filed with the Internal Revenue Service by the Borrower not later
than ten (10) days after such report has been so filed.
6.9 Financial Covenants. At all times maintain a Net Worth not
less than Four Million Dollar ($4,000,000).
SECTION 7.
NEGATIVE COVENANTS
On a continuing basis from the date of this Agreement until the
Indebtedness is paid in full and the Borrower has performed all of its other
obligations hereunder, the Borrower covenants and agrees that it will not,
without the Bank's prior written consent:
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<PAGE> 22
7.1 Dividends. Declare or pay any cash dividends on, or make any
other cash distribution (whether by reduction of capital or otherwise) with
respect to any shares of its capital stock.
7.2 Stock Acquisition. Purchase, redeem, retire or otherwise
acquire any of the shares of its capital stock, or make any commitment to do so
other than pursuant to that certain letter agreement dated September 23, 1998
between Borrower and The Buxton Company.
7.3 Liens and Encumbrances. Create, incur, assume or suffer to
exist any mortgage, pledge, encumbrance, security interest, lien or charge of
any kind upon any of its property or assets (including without limit any charge
upon property purchased or acquired under a conditional sales or other title
retaining agreement or lease required to be capitalized under GAAP) whether now
owned or hereafter acquired, other than:
(a) to Bank; and
(b) Permitted Liens.
7.4 Indebtedness. Incur, create, assume or permit to exist any
indebtedness or liability on account of deposits or advances or any indebtedness
or liability for borrowed money, or any other indebtedness or liability
evidenced by notes, bonds, debentures or similar obligations, or any other
indebtedness whatsoever, except for:
(a) the Indebtedness;
(b) existing indebtedness disclosed to the Bank;
(c) indebtedness secured by Permitted Liens; and
(d) the Existing Loan.
7.5 Extension of Credit. Make loans, advances or extensions of
credit to any Person, except (a) loans and advances to Borrower's customers
evidenced by Pawn Tickets; and (b) advances to employees of Borrower not
exceeding Fifty Thousand Dollars ($50,000) in aggregate at any time outstanding;
and (c) loans to Borrower's franchisees not to exceed (i) One Hundred Fifty
Thousand Dollars ($150,000) in any instance, or (ii) Three Hundred Thousand
Dollars ($300,000) during any fiscal year provided that, promptly upon the
making of any such loan, Borrower delivers and collaterally assigns to Bank all
of Borrower's interest in a note evidencing such loan and any security therefor.
7.6 Guarantee Obligations. Guarantee or otherwise, directly or
indirectly, in any way be or become responsible for obligations of any other
Person, whether by agreement to purchase the indebtedness of any other Person,
agreement for the furnishing of funds to any other Person through the furnishing
of goods, supplies or services, by way of stock purchase, capital contribution,
advance or loan, for the purpose of paying or discharging (or causing the
payment or discharge of) the indebtedness of any other Person, or otherwise,
except for the endorsement of negotiable instruments by the Borrower in the
ordinary course of business for deposit for collection.
7.7 Subordination of Receivables. Subordinate any indebtedness due
to it from a Person to indebtedness of other creditors of such Person.
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7.8 Property Transfer, Merger or Lease-Back. (a) Sell, lease,
transfer or otherwise dispose of properties and asset, having an aggregate book
value of more than One Hundred Thousand and 00/100 Dollars ($100,000), (whether
in one transaction or in a series of transactions) except as to the sale of
inventory in the ordinary course of business; (b) change its name, consolidate
with or merge into any other corporation, permit another corporation to merge
into it, acquire all or substantially all the properties or assets of any other
Person, enter into any reorganization or recapitalization or reclassify its
capital stock; or (c) enter into any sale-leaseback transaction.
7.9 Acquire Securities. Purchase or hold beneficially any stock or
other securities of, or make any investment or acquire any interest whatsoever
in, any other Person, except for certificates of deposit with maturities of one
year or less of United States commercial banks with capital, surplus and
undivided profits in excess of $100,000,000 and direct obligations of the United
States Government maturing within one year from the date of acquisition thereof.
7.10 Acquire/Open Stores. Borrower shall not purchase or acquire
new Locations from other Persons or open new Locations except that:
(a) Borrower may acquire new Locations from other Persons to the
extent that the total consideration therefor does not exceed:
(i) Four Hundred Thousand Dollars ($400,000) with respect
to any such acquisition or
(ii) One Million Two Hundred Thousand Dollars ($1,200,000)
in aggregate during any fiscal year; and
(b) Borrower may open new locations:
(i) during Borrower's 1999 fiscal year, (i) not more than
fifteen (15) Locations in any fiscal quarter and (ii)
not more than thirty (30) new Locations during the
fiscal year;
(ii) during Borrower's 2000 fiscal year (i) not more than
twenty four (24) stores in any fiscal quarter, and
(ii) not more than fifty (50) Locations during the
fiscal year; and
(iii) during Borrowers 2001 fiscal year (i) not more than
twenty four (24) Locations in any fiscal quarter and
(ii) not more than fifty (50) Locations during such
fiscal year.
7.11 Pension Plan. (a) Allow any fact, condition or event to occur
or exist with respect to any employee pension or profit sharing plans
established or maintained by it which might constitute grounds for termination
of any such plan or for the court appointment of a trustee to administer any
such plan, or (b) permit any such plan to be the subject of termination
proceedings (whether voluntary or involuntary) from which termination
proceedings there may result a liability of the Borrower to the PBGC which, in
the opinion of the Bank, will have a materially adverse effect upon the
operations, business, property, assets, financial condition or credit of the
Borrower.
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<PAGE> 24
SECTION 8.
EVENTS OF DEFAULT - ENFORCEMENT - APPLICATION OF PROCEEDS
8.1 Events of Default. The occurrence of any of the following
events shall constitute an Event of Default hereunder:
8.1.1 Failure to Pay Monies Due. If the Borrower shall fail to
pay, when due, any principal or interest under any Note or other Indebtedness
when due or shall default in an obligation described in Section 6.1 or 6.2
hereof and such failure or default shall continue for a period in excess of
three (3) Business Days after notice by Bank to Borrower thereof.
8.1.2 Misrepresentation. If any warranty or representation in
connection with or contained in this Agreement or any Document, or if any
Financial Statements now or hereafter furnished to the Bank by or on behalf of
the Borrower, shall prove to be false or misleading in any material respect as
of the date made or deemed made hereunder.
8.1.3 Noncompliance with Bank Agreement. If the Borrower shall
fail to perform in the time and manner required any of its obligations or
covenants under, or shall fail to comply with any of the provisions of, this
Agreement or any other Document and, in the case of a failure to perform
obligations other than those described in Section 6.4, 6.9, Sections 7.1 through
7.11 hereof or Section 8.1.1 above, such failure shall continue for a period in
excess of thirty (30) days after the earlier of Bank's notice to Borrower
thereof or the date Borrower actually becomes aware thereof.
8.1.4 Other Defaults. If the Borrower shall default in the
payment when due of any of its borrowed money indebtedness (other than to the
Bank) in amounts in excess of One Hundred Thousand Dollars ($100,000) or in the
observance or performance of any term, covenant or condition in any agreement or
instrument evidencing, securing or relating to such indebtedness, and such
default be continued for a period sufficient to permit acceleration of the
indebtedness, irrespective of whether any such default shall be forgiven or
waived or there has been acceleration by the holder thereof.
8.1.5 Judgments. If there shall be rendered against the
Borrower one or more judgments or decrees involving an aggregate liability of
One Hundred Thousand Dollars ($100,000) or more, which has or have become
non-appealable and shall remain undischarged, unsatisfied by insurance and
unstayed for more than thirty (30) days, whether or not consecutive, or if a
writ of attachment or garnishment against the property of the Borrower shall be
issued and levied in an action claiming One Hundred Thousand Dollars ($100,000)
or more and not released or appealed and bonded in an amount and manner
satisfactory to the Bank within thirty (30) days after such issuance and levy.
8.1.6 Business Suspension Bankruptcy Etc. If the Borrower
shall voluntarily suspend transaction of its business, or if the Borrower shall
not pay its debts as they mature or shall make a general assignment for the
benefit of creditors, or proceedings in bankruptcy, or for reorganization or
liquidation of the Borrower under the Bankruptcy Code or under any other, state
federal or other applicable law for the relief of debtors shall be commenced by
Borrower, or shall be commenced against the Borrower and shall not be discharged
within sixty (60) days of commencement, or a receiver, trustee or custodian
shall be appointed for the Borrower or for any substantial portion of their
respective properties or assets.
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8.1.7 Change of Management or Ownership. If a majority of the
persons serving on the board of directors of Borrower as of the date of this
Agreement shall cease to serve on such board of directors or if both Carson
Thompson or Michael Record shall cease to be active in the management of
Borrower and Bank considers (in its reasonable discretion) such change to affect
materially and adversely the prospects of Borrower.
8.1.8 Inadequate Funding or Termination of Employee Benefit
Plan. If the Borrower shall fail to meet its minimum funding requirements under
ERISA with respect to any employee benefit plan established or maintained by it,
or if any such plan shall be subject of termination proceedings (whether
voluntary or involuntary) and there shall result from such termination
proceedings a liability of Borrower to the PBGC which in the opinion of the Bank
will have a materially adverse effect upon the operations, business, property,
assets, financial condition or credit of the Borrower.
8.1.9 Occurrence of Certain Reportable Events. If there shall
occur, with respect to any pension plan maintained by the Borrower any
reportable event (within the meaning of Section 4043(b) of ERISA) which the Bank
shall determine constitutes a ground for the termination of any such plan, and
if such event continues for thirty (30) days after the Bank gives written notice
to the Borrower, provided that termination of such plan or appointment of such
trustee would, in the opinion of the Bank, have a materially adverse effect upon
the operations, business, property, assets, financial condition or credit of the
Borrower, as the case may be.
8.1.10 Repudiation of Documents. If Borrower repudiates,
contests, revokes or purports to revoke any of its obligations to Bank, or any
rights or remedies of Bank, under Documents to which they are party.
8.2 Acceleration of Indebtedness, Remedies. Upon the occurrence of
an Event of Default, all Indebtedness shall be due and payable in full
immediately (without notice or demand in the case of an Event of Default of the
type described in Section 8.1.6 above, and upon written notice from Bank in the
case of any other Event of Default) without presentation, demand, protest,
notice of dishonor or other further notice of any kind, all of which are hereby
expressly waived, and Bank shall have no further commitment to make Advances.
Unless all of the Indebtedness is then immediately fully paid, the Bank shall
have and may exercise any one or more of the rights and remedies for which
provision is made for a secured party under the UCC, under the or for which
provision is provided by law or in equity, including, without limitation, the
right to take possession and sell, lease or otherwise dispose of any or all of
the Collateral and to set off against the Indebtedness any amount owing by the
Bank to the Borrower and/or any property of the Borrower in possession of the
Bank. The Borrower agrees, upon request of the Bank, to assemble the Collateral
and make it available to the Bank at any place designated by the Bank.
8.3 Application of Proceeds. All of the Indebtedness shall
constitute one loan secured by the Bank's security interest in the Collateral
and by all other security interests, mortgages, liens, claims, and encumbrances
now and from time to time hereafter granted from the Borrower to the Bank. Upon
the occurrence of an Event of Default which is not cured within the cure period,
if any, provided under Section 8.1, the Bank may in its sole discretion apply
the Collateral to any portion of the Indebtedness. The proceeds of any sale or
other disposition of the Collateral authorized by this Agreement shall be
applied by the Bank, first upon all expenses authorized by the UCC or otherwise
in connection with the sale and all reasonable attorneys' fees and legal
expenses incurred by the Bank, the balance of the proceeds of such sale or other
disposition shall be applied in the payment of the Indebtedness, first to
interest, then to principal, then to other Indebtedness and the surplus, if any,
shall be paid over to the Borrower or to such other Person or Persons as may be
entitled thereto under applicable law. The Borrower shall remain liable for any
deficiency, which the Borrower shall pay to the Bank immediately upon demand.
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<PAGE> 26
8.4 Cumulative Remedies. The remedies provided for herein are
cumulative to the remedies for collection of the Indebtedness as provided by
law, in equity or by any Document. Nothing herein contained is intended, nor
shall it be construed, to preclude the Bank from pursuing any other remedy for
the recovery of any other sum to which the Bank may be or become entitled for
the breach of this Agreement by the Borrower.
SECTION 9.
MISCELLANEOUS
9.1 Independent Rights. No single or partial exercise of any
right, power or privilege hereunder, or any delay in the exercise thereof, shall
preclude other or further exercise of the rights of the parties to this
Agreement.
9.2 Covenant Independence. Each covenant in this Agreement shall
deemed to be independent of any other covenant, and an exception illegality in
one covenant shall not create an exception or illegality another covenant.
9.3 Waivers and Amendments. No forbearance on the part of the Bank
in enforcing any of its rights under this Agreement or any other Document, nor
any renewal, extension or rearrangement of any payment or covenant to be made or
performed by the Borrower hereunder, shall constitute a waiver of any of the
terms of this Agreement or of any such right. No Default or Event of Default
shall be waived by the Bank except in a writing signed and delivered by an
officer of the Bank, and no waiver of any other Default or Event of Default
shall operate as a waiver of any Default or Event of Default or of the same
Default or Event of Default on a future occasion. No other amendment,
modification or waiver of, or consent with respect to, any provision of this
Agreement or any Note or other Documents shall be effective unless the same
shall be in writing and signed and delivered by an officer of the Bank.
9.4 Governing Law. This Agreement, and each and every term and
provision hereof, shall be governed by and construed in accordance with the
internal law of the State of Michigan. If any provisions of this Agreement shall
for any reason be held invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provision hereof, but this Agreement
shall be construed as if such invalid or unenforceable provisions had never been
contained herein. Borrower hereby consents to the jurisdiction of the courts of
the State of Michigan and to the Federal Courts which include the Eastern
District of Michigan and their territorial institutions, for all proceedings
relating to the enforcement hereof or any indebtedness hereunder.
9.5 Survival of Warranties, Etc. All of the Borrower's covenants,
agreements, representations and warranties made in connection with this
Agreement and any document contemplated hereby shall survive the borrowing and
the delivery of the Notes and shall be deemed to have been relied upon by the
Bank, notwithstanding any investigation heretofore or hereafter made by the
Bank. All statements contained in any certificate or other document delivered to
the Bank at any time by or on behalf of the Borrower pursuant hereto or in
connection with the transactions contemplated hereby shall constitute
representations and warranties by the Borrower in connection with this
Agreement.
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<PAGE> 27
9.6 Costs and Expenses. The Borrower agrees that it will reimburse
the Bank, upon demand, for all reasonable costs and expenses incurred by the
Bank in connection with (i) collecting or attempting to collect the Indebtedness
or any part thereof, (ii) maintaining or defending the Bank's security interests
or liens (or the priority thereof), (iii) the enforcement of the Bank's rights
or remedies under this Agreement or the other documents contemplated hereby,
(iv) the preparation or making of any amendments, modifications, waivers or
consents with respect to this Agreement or the other documents contemplated
hereby, and/or (v) any other matters or proceedings arising out of or in
connection with any lending arrangement between the Bank and the Borrower, which
costs and expenses include without limit payments made by the Bank for taxes,
insurance, assessments, or other costs or expenses which the Borrower is
required to pay under this Agreement or the other documents contemplated hereby,
expenses related to the examination of the Collateral, audit expenses, court
costs and reasonable attorneys' fees (whether in-house or outside counsel is
used, whether legal assistants are used, and whether such costs are incurred in
formal or informal collection actions, federal bankruptcy proceedings, probate
proceedings, on appeal or otherwise), and all other costs and expenses of the
Bank incurred in connection with any of the foregoing.
9.7 Payments on Saturdays, Etc. Whenever any payment to be made
hereunder shall be stated to be due on a Saturday, Sunday or any other day which
is not a Business Day, such payment may be made on the next succeeding Business
Day, and such extension, if any, shall be included in computing interest in
connection with such payment.
9.8 Binding Effect. This Agreement shall inure to the benefit of
and shall be binding upon the parties hereto and their respective successors and
assigns, provided, however, that the Borrower may not assign or transfer its
rights or obligations hereunder without the prior written consent of the Bank.
9.9 Maintenance of Records. The Borrower will keep all of its
records concerning its business operations and accounting at its principal place
of business. The Borrower will give the Bank prompt written notice of any change
in its principal place of business, or in the location of its records.
9.10 Notices. All notices and communications provided for herein or
in any Document contemplated hereby or required by law to be given shall be in
writing (unless expressly provided to the contrary) and, if personally
delivered, effective when delivered at the address below or, in the case of
mailing, effective two (2) days after sending by first class mail, postage
prepaid, addressed as follows: (a) If to the Borrower, to: 301 Commerce, Suite
3600, Fort Worth, Texas 76012, Attention: Thomas White, V.P. Finance, and (b) if
to the Bank, to: Comerica Bank, 500 Woodward Avenue, Detroit, Michigan 48226,
Attention: _________________________, or to such other address as a party shall
have designated to the other in writing in accordance with this section. The
giving of at least five (5) days notice before the Bank shall take any action
described in any notice shall conclusively be deemed reasonable for all
purposes, provided, that this shall not be deemed to require the Bank to give
five day notice or any notice if not specifically required in this Agreement.
9.11 Interest and Charges. It is not the intention of any parties
to this Agreement to make an agreement in violation of the laws of any
applicable jurisdiction relating to usury. Regardless of any provision in this
Agreement, Bank shall ever be entitled to receive, collect or apply, as interest
on the Obligations, any amount in excess of the Legal Rate. If any Bank ever
receives, collects or applies, as interest, any such excess, such amount which
would be excessive interest shall be deemed a partial repayment of principal and
treated hereunder as such; and if principal is paid in full, any remaining
excess shall be paid to the Borrower. In determining whether or not the interest
paid or payable, under any specific contingency, exceeds the Legal Rate, the
Borrower and the Bank shall, to the maximum extent permitted under applicable
law, (a) characterize any nonprincipal payment as an expense, fee or premium
rather than as interest, (b) exclude voluntary prepayments and the effect
thereof, and (c) amortize, prorate,
-26-
<PAGE> 28
allocate and spread in equal parts, the total amount of interest throughout the
entire contemplated term of the Indebtedness so that the interest rate is
uniform throughout the entire term of the indebtedness; provided; however, that
if the Indebtedness are paid and performed in full prior to the end of the full
contemplated term thereof, and if the interest received for the actual period of
existence thereof exceeds the Legal Rate, the Bank shall refund to the Borrower
the amount of such excess or credit the amount of such excess against the total
principal amount of the Indebtedness owing, and in such event, the Bank shall
not be subject to any penalties provided by any Applicable Law for contracting
for, charging or receiving interest in excess of the Legal Rate. This Section
shall control every other provision of all agreements pertaining to the
transactions contemplated by or contained herein.
9.12 Confidentiality. Bank agrees (on behalf of itself and each of
its affiliates, directors, officers, employees and representatives) to use
reasonable precautions to keep confidential, in accordance with customary
procedures for handling confidential information of this nature and in
accordance with safe and sound banking practices, any non-public information
supplied to it by the Borrower pursuant to this Agreement which is identified by
the Borrower as being confidential at the time the same is delivered to Bank,
provided that nothing herein shall limit the disclosure of any such information
(a) to the extent required by applicable law, (b) to counsel for bank, (c) to
bank examiners, auditors or accountants of any Bank, (d) in connection with any
liquidation to which any one Bank is a party, provided, further, that, unless
specifically prohibited by applicable law or court order, Bank shall, prior to
disclosure thereof, notify the Borrower of any request for disclosure of any
such non-public information (i) by any governmental authority or representative
thereof (other than any such request in connection with an examination of such
Bank's financial condition by such Governmental authority), or (ii) pursuant to
legal process, or (e) to any assignee or participant (or prospective assignee or
participant) so long as such recipient of such confidential information agrees
to keep such information confidential.
9.13 Counterparts. This Agreement may be signed in any number of
counterparts with the same effect as if the signatures were upon the same
instrument.
9.14 Headings. Article and section headings in this Agreement are
included for the convenience of reference only and shall not constitute a part
of this Agreement for any purpose.
9.15 WAIVER OF JURY TRIAL. THE BORROWER AND THE BANK HEREBY
IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY AND ALL ACTIONS
OR PROCEEDINGS AT ANY TIME IN WHICH THE BORROWER AND THE BANK ARE PARTIES
ARISING OUT OF THIS AGREEMENT OR THE OTHER DOCUMENTS.
IN WITNESS WHEREOF, the Borrower and the Bank have caused this
Agreement to be executed by their duly authorized officers as of the day and
year first written above.
PAWNMART, INC.
By:/s/ Thomas W. White
---------------------------------------------------
Its: Vice President - Finance/Chief Accounting Officer
-------------------------------------------------
COMERICA BANK
By:/s/ Barry T. Carroll
---------------------------------------------------
Its: Vice President
-------------------------------------------------
-27-
<PAGE> 29
EXHIBIT "A"
REVOLVING NOTE
$10,000,000 Detroit, Michigan
October 13, 1998
FOR VALUE RECEIVED, on or before the Maturity Date, PAWNMART, INC., a
Delaware corporation promises to pay to the order of COMERICA BANK, a Michigan
banking corporation ("Bank") at its main office at One Detroit Center, Detroit,
Michigan, in lawful money of the United States of America so much of the
principal sum of TEN MILLION DOLLARS ($10,000,000) as shall have been advanced
and then be outstanding hereunder and all the accrued and unpaid interest
thereon.
Capitalized terms used herein and not defined to the contrary have the
meanings given them in the Revolving Credit Agreement of even date herewith
between the undersigned and Bank ("Agreement") to which reference is hereby
made.
Interest on the Advances from time to time outstanding shall bear
interest at their Applicable Interest Rates; provided, however, that in the
event and so long as there shall exist an Event of Default, the principal
balance from time to time outstanding shall bear interest at the rates provided
in Section 11.12 of the Agreement. Interest shall be computed on the basis of a
360 day year and assessed for the actual number of days elapsed.
This Note is note under which advances, repayments and readvances may
be made subject to the terms and conditions of the Agreement. This Note
evidences borrowing under, is subject to, is secured in accordance with, and may
be matured under, the terms of the Agreement, to which reference is hereby made.
As additional security for this Note, Company grants Bank a lien on all property
and assets including deposits and other credits of the Company, at any time in
possession or control of or owing by Bank for any purpose.
Company hereby waives presentment for payment, demand, protest and
notice of dishonor and nonpayment of this Note and agrees that no obligation
hereunder shall be discharged by reason of any extension, indulgence, release,
or forbearance granted by any holder of this Note to any party now or hereafter
liable hereon or any present or subsequent owner of any property, real or
personal, which is now or hereafter security for this Note. Any transferees of,
or endorser, guarantor or surety paying this Note in full may succeed to all
rights of Bank, and Bank shall be under no further responsibility for the
exercise thereof or the loan evidenced hereby. Nothing herein shall limit any
right granted Bank by other instrument or by law.
This Note shall be governed by and construed in accordance with the
laws of the State of Michigan.
PAWNMART, INC.
By:/s/ Thomas W. White
---------------------------------------------------
Its: Vice President - Finance/Chief Accounting Officer
-------------------------------------------------
<PAGE> 30
EXHIBIT "B"
REQUEST FOR LOAN
The undersigned authorized officer of PAWNMART, INC. ("Borrower")
hereby submits this Request for Loan to COMERICA BANK ("Bank") pursuant to
Section 2.2 of the Revolving Credit Agreement ("Agreement") dated October 13,
1998 between Company and Bank.
Capitalized terms used herein and not defined to the contrary have
meanings given them in the Agreement.
Company: (a) requests an Advance under the Note in the amount of
$____________________ to be made on _______________, 199_____, (b) certifies
that all of the conditions for the Advance requested hereby under the Agreement,
are satisfied as of the date hereof and shall be satisfied as of the date for
the requested Advance, and (c) directs Bank to disburse proceeds of the Advance
requested hereby as follows:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
.(1)
- ----------------------------------------------------------------------------
Executed as of this _____ day of ____________________, 199_____.
PAWNMART, INC.
By:
--------------------------------------------
Its:
-------------------------------------------
- ----------
(1) If request is for the renewal or conversion of an existing Advance,
identify Advance to be converted by Applicable Interest Rate and Interest
Period.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS OF PAWNMART, INC. AND SUBSIDIARIES
AS OF AND FOR THE NINE MONTHS ENDED OCTOBER 31, 1998 AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> JAN-30-1999
<PERIOD-END> OCT-31-1998
<CASH> 178,000
<SECURITIES> 0
<RECEIVABLES> 3,386,000
<ALLOWANCES> 0
<INVENTORY> 2,610,000
<CURRENT-ASSETS> 6,402,000
<PP&E> 3,423,000
<DEPRECIATION> (1,703,000)
<TOTAL-ASSETS> 8,407,000
<CURRENT-LIABILITIES> 1,023,000
<BONDS> 0
0
0
<COMMON> 72,000
<OTHER-SE> 5,712,000
<TOTAL-LIABILITY-AND-EQUITY> 8,407,000
<SALES> 5,525,000
<TOTAL-REVENUES> 8,055,000
<CGS> 3,754,000
<TOTAL-COSTS> 7,298,000
<OTHER-EXPENSES> 2,727,000
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 866,000
<INCOME-PRETAX> (2,836,000)
<INCOME-TAX> 0
<INCOME-CONTINUING> (2,836,000)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (2,836,000)
<EPS-PRIMARY> (0.56)
<EPS-DILUTED> (0.56)
</TABLE>
