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U.S. Securities and Exchange Commission
Washington, D.C. 20549
FORM 10 - QSB
(MARK ONE)
X Quarterly Report pursuant to Section 13 or 15 (d) of the
- --- Securities Exchange Act of 1934
For the Quarterly Period Ended November 30, 1996 or
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Transition Report pursuant to Section 13 or 15 (d) of the
- --- Securities Exchange Act of 1934
For the Transition Period From to
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COMMISSION FILE NUMBER 0-18091
RSI HOLDINGS, INC.
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(Exact name of small business issuer as specified in its charter)
NORTH CAROLINA 56-1200363
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
245 E. Broad Street, Suite A, P.O. Box 6847
Greenville, South Carolina 29606
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(Address of principal executive offices)
(864) 271-7171
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Issuer's telephone number
Not Applicable
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(Former name, former address and former fiscal year,
if changed since last report)
Check whether the issuer (1) has 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
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State the number of shares outstanding of each of the issuer's classes of
common equity, as of the latest practicable date:
Common Stock, $.01 Par Value - 7,895,822 shares outstanding as of January 9,
1997
Transitional Small Business Disclosure Format (check one):
Yes No X
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INDEX
RSI HOLDINGS, INC.
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PART I. FINANCIAL INFORMATION PAGE
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Item 1. Financial Statements (Unaudited)
Condensed consolidated balance sheet -- November 30, 1996 4
Condensed consolidated statement of operations -- Three
months ended November 30, 1996 5
Condensed consolidated statement of cash flows -- Three
months ended November 30, 1996 6
Condensed consolidated statement of changes in net assets in
liquidation -- Three months ended November 30, 1995 7
Notes to condensed consolidated financial statements --
November 30, 1996 8
Item 2. Plan of Operation 11
PART II. OTHER INFORMATION 15
Item 1. Legal Proceedings 15
Item 2. Changes in Securities 19
Item 3. Default 19
Item 4. Submission of Matters to a Vote of Security Holders 19
Item 5. Other Information 19
Item 6. Exhibits and Reports on Form 8-K 19
SIGNATURES 21
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RSI Holdings, Inc.
Condensed Consolidated Balance Sheet (Unaudited)
November 30, 1996
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Assets
Current Assets:
Cash $ 1,791,000
Prepaid expenses 22,000
Other current assets 43,000
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Total current assets 1,856,000
Property and equipment
Cost 37,000
Less accumulated depreciation 22,000
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15,000
Other assets
Land and building held for sale, net of
accumulated depreciation of $293,000 255,000
Other 13,000
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268,000
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$ 2,139,000
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Liabilities and shareholders' equity
Current liabilities:
Trade accounts payable $ 9,000
Accrued expenses 123,000
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132,000
Deferred compensation 155,000
Shareholders' equity:
Common Stock, $.01 par value-authorized
25,000,000 shares, issued and outstanding
7,895,822 shares at November 30, 1996 79,000
Excess of paid-in capital over par value 3,775,000
Deficit (2,002,000)
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1,852,000
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$ 2,139,000
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</TABLE>
See accompanying notes.
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RSI Holdings, Inc.
Condensed Consolidated Statement of Operations (Unaudited)
Three Months ended November 30, 1996
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Expenses
Selling, general and administrative $ 145,000
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Loss from operations (145,000)
Other income (expense)
Interest income 34,000
Rental income on asset held for sale 7,000
Interest expense (4,000)
Cost to settle lawsuit (300,000)
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Total other income (expense) (263,000)
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Net loss $ (408,000)
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Net loss per share $ (.05)
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Weighted average number of shares outstanding 7,973,019
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</TABLE>
See accompanying notes.
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RSI Holdings, Inc.
Condensed Consolidated Statement of Cash Flows (Unaudited)
Three Months ended November 30, 1996
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Cash used in operating activities $ (412,000)
Investing activities
Acquisition of outstanding stock of
CambridgeBanc, Inc. - Note B (15,000)
Purchase of common stock (25,000)
Organization expense (13,000)
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(53,000)
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Net decrease in cash and cash equivalents (465,000)
Cash and cash equivalents, beginning of year 2,256,000
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Cash and cash equivalents, end of quarter $ 1,791,000
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</TABLE>
See accompanying notes
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RSI Holdings, Inc.
Condensed Consolidated Statement of Changes
in Net Assets in Liquidation (Unaudited)
Three months ended November 30, 1995
<TABLE>
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Net assets in liquidation at beginning of period $ 2,143,000
Changes in net assets in liquidation attributed to:
Decrease in cash and cash equivalents (115,000)
Decrease in accrued expenses 31,000
Decrease in estimated costs during remaining period
of liquidation 102,000
Increase in estimated net realizable
value of accounts receivable 1,000
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Increase in net assets in liquidation 19,000
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Net assets in liquidation at end of period $ 2,162,000
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</TABLE>
See accompanying notes
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RSI Holdings, Inc.
Notes to Condensed Consolidated Financial Statements (Unaudited)
Note A - Basis of Presentation
The Company ceased all of its former business operations during August
of 1994 and since that time has been actively seeking to sell substantially all
of the assets of its former business. Concurrent with the decision to cease
all of its former business operations, the Company adopted the liquidation
basis of accounting. Generally accepted accounting principles for the
liquidation basis of accounting required that assets be valued at their
estimated net realizable value and liabilities be presented at their estimated
settlement amounts and also include estimated costs associated with carrying
out the liquidation. The Company's financial statements were prepared under
the liquidation basis of accounting through August 31, 1996.
During fiscal 1996, the Company substantially completed the sale of
its assets and during November of 1996 acquired the outstanding common stock of
a consumer finance company. Accordingly, effective September 1, 1996 the Company
adopted the going concern basis of accounting.
The accompanying unaudited condensed consolidated financial statements
at November 30, 1996 have been prepared in accordance with generally accepted
accounting principles for interim financial information under the going concern
basis of accounting and with the instructions to Form 10 - QSB and Item 310(b)
of Regulation S-B. Accordingly, they do not include all the information and
footnotes required by generally accepted accounting principles for complete
financial statements. In the opinion of management, all adjustments including
normal recurring accruals considered necessary for a fair presentation on the
going concern basis have been included. Operating results for the three months
ended November 30, 1996 are not necessarily indicative of the results that may
be expected for the year ended August 31, 1997. For further information, refer
to the consolidated financial statements and footnotes thereto included in the
Company's annual report on Form 10 - KSB for the year ended August 31, 1996.
Note B - Acquisition
On November 4, 1996, the Company purchased for cash all of the
outstanding common stock of CambridgeBanc, Inc. from Emergent Group, Inc. for
the total purchase price of $15,000. The assets that were owned by
CambridgeBanc, Inc. consist of furniture and equipment that the Company
believes had a fair value of $15,000. Through CambridgeBanc, Inc., the Company
has begun to engage in the business of originating and selling home improvement
and other loans secured by liens on improved property.
In addition to the purchase agreement to acquire the common stock, the
Company executed a lease agreement with Emergent Group, Inc. in which the
Company paid $18,000 for the use of additional furniture and equipment for one
year. These assets were used by CambridgeBanc, Inc. in its previous
operations. The newly acquired subsidiary, CambridgeBanc, Inc. executed a
sublease agreement to rent for one year from Emergent Group, Inc. the office
space that CambridgeBanc, Inc. occupies at $1,757 per month.
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Mr. Buck Mickel, Chairman of the Board and Chief Executive Officer of
the Company and beneficial owner of more than 5% of its outstanding common
stock, also serves on the board of directors of Emergent Group, Inc. and
beneficially owns less than 5% of its outstanding common stock and C. Thomas
Wyche, Secretary of the Company and the beneficial owner of less than 5% of its
outstanding common stock, also serves as Secretary of Emergent Group, Inc. and
is a shareholder of Emergent Group, Inc., owning less than 5% of its
outstanding common stock. In addition, each of Minor H. Mickel, Buck A.
Mickel, Charles C. Mickel and Minor Mickel Shaw, beneficial owners of more than
5% of the Company's outstanding common stock, are shareholders of Emergent
Group, Inc., each owning less than 5% of its outstanding common stock. Each of
Buck A. Mickel, Charles C. Mickel and Minor Mickel Shaw are the adult children
of Buck Mickel and Minor H. Mickel is the spouse of Buck Mickel.
Note C - Shareholders' equity
The financial statements as of August 31, 1996 included a consolidated
statement of net assets in liquidation which presented under the liquidation
basis of accounting the net assets that the Company expected to realize at the
end of its period of liquidation. The accompanying condensed consolidated
balance sheet presents on the going concern basis of accounting the
shareholders' equity at November 30, 1996. Below is a reconciliation of the
net asset in liquidation at August 31, 1996 to the shareholders' equity at
November 30, 1996.
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Net assets in liquidation at August 31, 1996 $ 2,285,000
Loss from operations during three months ended
November 30, 1996 (408,000)
Purchase of common stock for the treasury (25,000)
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Shareholders' equity at November 30, 1996 $ 1,852,000
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</TABLE>
Note D - Contingencies
On November 18, 1996, Wiegmann & Rose International Corp. ("Wiegmann &
Rose"), a wholly-owned subsidiary of the Company, entered into an agreement to
settle a lawsuit brought by Triple A Machine Shop, Inc. ("Triple A") relating
to environmental contamination on property formerly owned by Wiegmann & Rose
and sold to Triple A in 1987. Pursuant to the settlement agreement Wiegmann &
Rose paid to Triple A the sum of three hundred thousand ($300,000) dollars in
exchange for settlement of the lawsuit as well as Triple A's release of
Wiegmann & Rose and the Company from any further liability to Triple A in
connection with the property or under the agreement made at the time of sale of
the property.
Wiegmann & Rose has also been sued, along with several other
defendants, in seven personal injury asbestos suits. Although, Wiegmann & Rose
has been dismissed without prejudice in each of the seven suits, Wiegmann could
be brought back into the litigation in five of these seven dismissed cases. As
to the substantive nature of the asbestos claims, the Company believes
substantial defenses would be available and for that reason the Company has
been successful in having all seven of these filed actions dismissed without
prejudice as against Wiegmann & Rose. No provisions have been made in the
accompanying financial statements for any liability which may result from this
matter.
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In addition, the Company is one of several defendants in a lawsuit
filed in July 1993 claiming indemnification with respect to payments due and
the cost of performing certain covenants and obligations under a land lease
agreement allegedly in default. This agreement relates to a motel property
previously operated by the Company. The Company intends to defend this matter
vigorously. The ultimate outcome of this matter is not known. No provision
has been made in the accompanying financial statements for any liability which
may result from this matter.
In February 1994, an individual served a complaint against the Company
seeking damages in excess of $15,000 for injuries sustained while operating a
turf care product sold by the Company. The complaint also named the
manufacturer of the product. The Company is unable to determine whether any
loss will be incurred and if so, the estimate of any range of loss. In
addition, the manufacturer and its insurance carrier has accepted defense of
the Company regarding this matter. The Company believes, based on the
arrangements with the manufacturer and the Company's own insurance, that this
action should not have a material adverse effect on the Company's financial
position.
In addition, in January 1995, a complaint against the Company seeking
damages in excess of the minimal jurisdictional amount was served. The
plaintiff in that case alleges that he was injured while operating a vehicle
that was sold by the Company. The Complaint also named the manufacturer of the
vehicle. The manufacturer has accepted defense of the Company regarding this
matter. The Company believes, however, based on the arrangements with the
manufacturer and the Company's own insurance, that this action should not have
a material adverse effect on the Company's financial position.
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Item 2. Plan of Operation
New Business Plans
On November 4, 1996, the Company purchased the outstanding common
stock of CambridgeBanc, Inc. ("CambridgeBanc"), a small specialized consumer
finance business that originates and sells consumer finance receivables,
substantially all of which are home improvement loans secured by liens on
improved property. Through CambridgeBanc, the Company intends to continue this
business as well as to offer conventional loans under Title I "look-alike"
programs that in some cases permit the loan proceeds to be used for purposes
other than home improvements. See "Planned Fiscal Year 1997 Activities" below.
Adjustment from Liquidation Basis to Going Concern Basis
Because the Company decided in 1994 that it should cease its existing
business operations and sell substantially all of its operating assets, the
Company reported its financial position on the liquidation basis of accounting
during the years ended August 31, 1994 through August 31, 1996. In the
liquidation basis of accounting, assets are valued at their net realizable
value (rather than at their net historical cost), and liabilities include
estimated costs associated with carrying out the sale of substantially all of
the assets of the Company.
The Company substantially completed its plan to sell substantially
all of its assets ("Sale of Assets Plan") during fiscal 1996 and purchased the
common stock of a company in the consumer finance business in November 1996.
Accordingly, on September 1, 1996, the Company adopted the going concern basis
of accounting. The effect of the change from the liquidation basis of
accounting to the going concern basis of accounting on net assets of the
Company was to reduce the carrying value of the real estate held for sale that
is located in Tampa, Florida from its estimated liquidation value of $430,000
to its depreciated cost of $263,000, a decrease in net assets of $167,000;
increase prepaid expenses by $15,000 and reduce the liabilities of the Company
by the estimated costs during the remaining period of liquidation of $155,000.
Planned Fiscal Year 1997 Activities
The remaining step in the implementation of the Sale of Assets Plan is
the sale of the Company's Tampa real estate. During fiscal 1997, the Company
plans to continue with its efforts to sell its office and warehouse facility in
Tampa, Florida and to continue with its efforts to collect its remaining
accounts receivable. During December of 1996, the Company collected a past due
account receivable with a face amount of $37,000. The net proceeds after
payment of collection fees were $26,000. Proceeds from these activities will
be applied first to the payment of expenses related to the realization of these
proceeds, next to pay or make provisions for the payment of contingent
liabilities of the Company as they are quantified, and any remaining proceeds
will be used for working capital. Since the amount required to settle the
contingent liabilities cannot be determined, there is no assurance that the
Company's proceeds from the sale of its remaining assets will be sufficient to
cover these expenses.
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The Company currently intends to use the assets, if any, remaining
after the payment or provision for payment of the foregoing items to provide
the operating capital necessary for the operations of CambridgeBanc. The
Company expects that CambridgeBanc will operate at a loss during the first two
years, but based on the information now available to it, expects CambridgeBanc
to operate at a modest profit by the third year. There can be no assurance
that these goals can be achieved. As of January 6, 1997, CambridgeBanc has
five employees. If the Company is successful with the origination of consumer
loans, the Company plans to open two sales offices to target certain major
metropolitan areas of the Carolinas during fiscal 1997. The initial office in
Greenville, South Carolina will house sales, underwriting and administrative
personnel. Each sales office would be staffed by a loan closer. Additional
personnel will be added when and if the volume of loans increases. If
CambridgeBanc achieves its budgeted operating results, the Company estimates
that the new business would have approximately 8 employees by August 31, 1997.
CambridgeBanc is now offering Title I home improvement loans ("Title I
Loans") under the Title I program administrated by the Federal Housing
Administration ("FHA"). CambridgeBanc was approved by FHA as a Title I lender
during 1995. The Title I program was established by Title I of the National
Housing Act of 1934. Loans made under the Title I program are 90% guaranteed
by the United States Department of Housing and Urban Development ("HUD"). In
addition, CambridgeBanc offers conventional loans to certain qualified
borrowers under Title I "look-alike" programs that in some case permit the loan
proceeds to be used for purposes other than home improvements. In addition to
the FHA Title I license, CambridgeBanc will have to apply for licenses to
operate under the banking laws of each State in which this business chooses to
operate. CambridgeBanc is currently authorized to operate under the banking
laws of South Carolina and North Carolina. There can be no assurance that any
such additional licenses may be obtained on a timely basis or at all. In
addition, the new business would be subject to ongoing monitoring by regulatory
authorities and the failure to comply with applicable regulations could result
in the forfeiture of licenses on which the business is dependent.
The consumer finance market is highly competitive and fragmented.
CambridgeBanc competes with a number of finance companies that provide
financing to individuals who may not qualify for traditional financing, as well
as established home improvement lenders, other Title I lenders, existing
mortgage brokers and bankers that offer multi-purpose second mortgages. To a
lesser extent, CambridgeBanc competes with commercial banks, savings and loan
associations, credit unions, insurance companies, and captive finance arms of
major manufacturing companies that may apply more traditional lending criteria.
Many of these competitors or potential competitors are substantially larger and
have significantly greater capital, experience and other resources than the
Company.
Home improvement loan volume tracks the seasonality of home
improvement contract work. Volume tends to build during the spring and early
summer months. A decline is typically experienced in late summer and early
fall until temperatures begin to drop. This change in seasons precipitates the
need for new siding, window and insulation contracts. Peak volume is
experienced in November and early December and declines dramatically from the
holiday season through the winter months. Debt consolidation and home equity
loan volume are not impacted by seasonal climate changes and, with the
exclusion of the holiday season, tend to be stable throughout the year.
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CambridgeBanc will attempt to sell, without recourse, all of its loans
on the secondary market to a licensed Title I wholesale buyer. CambridgeBanc
does not have the capital that would be necessary to make a significant volume
of loans unless it is able promptly to sell its loans on the secondary market.
There can be no assurance that the secondary market for loans will be
available. Adverse changes in the secondary market could impair the
CambridgeBanc's ability to originate and sell loans on a favorable or timely
basis. Delays in the sale of a loan pool beyond a quarter-end could result in
losses for such quarter. If CambridgeBanc is unable to sell its loans on the
secondary market, its growth could be materially impaired and its results of
operations and financial condition could be materially adversely affected. See
Liquidity and Capital Resources - Capital Requirements for New Business.
A substantial portion of CambridgeBanc's business is dependent on the
continuation of the Title I Loan program, which is federally funded. The Title
I Loan program provides that qualifying loans are eligible for FHA insurance.
In August of 1995, bills were introduced in both houses of the United States
Congress that would, among other things, abolish HUD, reduce federal spending
for housing and community development activities and eliminate the Title I Loan
program. Other changes to HUD have been proposed, which, if adopted, could
adversely affect the operation of the Title I Loan program. Discontinuation of
or a significant reduction in the Title I Loan program or CambridgeBanc's
authority to originate loans under the Title I Loan program would have a
material adverse effect on CambridgeBanc's planned new business.
Payment of Dissenting shareholders
At the annual meeting of the Company's shareholders held on January
17, 1995, the Company received shareholder approval of its plan to sell
substantially all its assets. The holders of an aggregate of 100,823 shares of
Common Stock dissented from the Sale of Assets Plan, endorsed and returned
their shares of the Company's common stock to the Company and demanded payment
of the "fair value" of their shares of the Company's common stock, plus
interest pursuant to North Carolina law. The Company determined the "fair
value" of these shares to be $.21 per share and accordingly made an offer of
$.21 per share plus 8% interest from July 29, 1994, (the date of the
announcement of the Sale of Assets Plan) to the dissenting shareholders.
Shareholders holding an aggregate of 98,470 shares of the Company's common
stock accepted the Company's offer. The Company paid the dissenting
shareholders who accepted its offer for their shares of the Company's common
stock in accordance with North Carolina law. The time for accepting the offer
under North Carolina law has now expired.
Liquidity and Capital Resources
Anticipated Liquidity Requirements
As discussed below under "Cash and Cash Equivalents" and "Debt
Arrangements," the Company has substantial cash liquidity and, although there
can be no assurance in this regard, anticipates that such capital resources
will be sufficient to enable the Company to pay ordinary expenses expected to
arise for the remainder of fiscal 1997.
In addition, the Company will continue to incur legal expenses
relating to its contingent liabilities. The Company plans to continue to
attempt to settle its contingent liabilities during fiscal 1997, but it cannot
estimate when these will be settled or the ultimate outcome of
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the lawsuits described above under Item 1 of Part II, "Legal Proceedings" or of
any unknown contingencies. There can be no assurance that the Company's cash
balances will be sufficient to allow it to meet its recorded liabilities and
any known or unknown contingent liabilities. The ultimate outcome of these
contingencies is not known. No provision has been made in the accompanying
financial statements for any liability which may result from these matters.
Cash and Cash Equivalents
Cash and cash equivalents in the amount of $1,791,000 as of November
30, 1996 included United States treasury bills with a maturity of three months
when purchased and having a market value of $1,533,000. Cash in excess of the
amounts invested in United States treasury bills is invested as available in a
money market account, which may be liquidated by the Company to meet its cash
needs on a daily basis. The Company earned $34,000 on its investments during
the three months ended November 30, 1996.
Debt Arrangements
During December of 1996, CambridgeBanc executed a warehouse line of
credit with a bank in the amount of $500,000 to be used to finance loans made
to third parties in connection with its consumer finance business. The loans
made are collateral for this line of credit. This line of credit bears
interest at the bank's prime rate plus one percent. Under the terms of the
loan agreement and an agreement that the Company has executed with
CambridgeBanc, CambridgeBanc is required to maintain tangible net worth of at
least $500,000. The bank also requires that this tangible net worth include
certain specified assets with maturity of five years or less in the amount of
$500,000.
Capital Requirements for New Business
During the three months ended November 30, 1996, the Company invested
$615,000 in CambridgeBanc, Inc. its newly acquired wholly-owned subsidiary.
The investment was used as follows: acquisition of common stock - $15,000,
equipment rental for first year - $18,000, purchase of U. S. Treasury bill -
$500,000, purchase of money market account - $25,000 and operating capital of
$57,000. The Company also plans to attempt to arrange an additional borrowing
facility of up to an additional $500,000 that will be necessary to finance the
operations of this business if the finance business grows as planned. Given
its cash and cash equivalents position, the Company believes that it has the
borrowing capacity to obtain such loans. There can be no assurance, however,
that the Company will be able to obtain such loans on satisfactory terms.
Failure to obtain such financing could materially and adversely affect the
ability of this business to grow.
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PART II. Other information
ITEM 1. Legal Proceedings
Wiegmann & Rose
Environmental Litigation
On November 18, 1996, Wiegmann & Rose International Corp. ("Wiegmann &
Rose"), a wholly-owned subsidiary of the Company, entered into an agreement to
settle a lawsuit brought by Triple A Machine Shop, Inc. ("Triple A") relating
to environmental contamination on property formerly owned by Wiegmann & Rose
and sold to Triple A in 1987. Pursuant to the settlement agreement Wiegmann &
Rose paid to Triple A the sum of three hundred thousand ($300,000) dollars in
exchange for settlement of the lawsuit as well as Triple A's release of
Wiegmann & Rose and the Company from any further liability to Triple A in
connection with the property or under the agreement made at the time of sale of
the property.
Asbestos Litigation
Wiegmann & Rose is also one of numerous defendants with respect to
seven claims for exposure to asbestos, arising in the normal course of
business. All seven of these claims have been dismissed without prejudice with
respect to Wiegmann & Rose, and the applicable statute of limitations has
passed with respect to at least two of the dismissed claims. The dismissed
claims are made in the following lawsuits, in each case seeking unspecified
damages for injury allegedly due to asbestos exposure: (i) Brophy v. Abex et
al. (filed April 9, 1992), pending in the San Francisco, California Superior
Court, seeks damages for wrongful death allegedly due to asbestos exposure.
Wiegmann & Rose has been dismissed without prejudice in this action and the
applicable statute of limitations has now passed, barring any subsequent action
by the plaintiff against Wiegmann & Rose. (ii) Canga v. Abex et al. (filed
March 18, 1993), pending in the San Francisco Superior Court, seeks damages for
personal injuries allegedly due to asbestos exposure. Wiegmann & Rose has been
dismissed without prejudice in this action. (iii) Jordison v. Abex et al.
(filed January 21, 1994), pending in the San Francisco Superior Court, seeks
damages for personal injuries allegedly due to asbestos exposure. The case
against Wiegmann & Rose has been dismissed without prejudice. (iv) Barnes v.
Abex et al. (filed December 3, 1993), pending in the San Francisco Superior
Court, seeks damages for wrongful death allegedly due to asbestos exposure.
The case against Wiegmann & Rose has been dismissed without prejudice, and the
applicable statute of limitation has passed, barring any subsequent action by
plaintiff against Wiegmann & Rose. (v) Richardson v. Abex et al. (filed August
5, 1993), pending in the San Francisco Superior Court, seeks damages for
personal injuries allegedly due to asbestos exposure. The case against
Wiegmann & Rose has been dismissed without prejudice. (vi) Sorensen v. Abex et
al. (filed July 20, 1993), pending in the San Francisco Superior Court, seeks
damages for personal injuries allegedly due to asbestos exposure. The case
against Wiegmann & Rose has been dismissed without prejudice. (vii) Hall v.
Abex et al. (filed February 25, 1994), pending in the San Francisco Superior
Court, seeks damages for personal injuries allegedly due to asbestos exposure.
The case against Wiegmann & Rose has been dismissed without prejudice.
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As to the substantive nature of the asbestos claims, the Company
believes valid defenses would be available and for that reason the Company has
been successful in having all seven of these filed actions dismissed without
prejudice against Wiegmann & Rose.
No actions involving asbestos are currently pending.
Insurance
The Company has contacted its two primary insurance companies relating
to the environmental and asbestos claims against Wiegmann & Rose described
above. One insurance company has denied coverage with respect to the
environmental claims, but the other insurance company has reimbursed the
Company for a portion of its defense costs related to the environmental matter
under a reservation of rights. The two insurance companies, under a
reservation of rights, have reimbursed the Company for substantially all of its
defense costs related to the asbestos claims. The Company is communicating
with its insurance company with respect to reimbursement of defense costs paid
by the Company relating to the environmental claims. The Company is seeking
reimbursement of legal fees that have not been previously reimbursed and also
reimbursement of the $300,000 settlement discussed above, but there can be no
assurance that insurance coverage will be available to reimburse the Company
for the remaining legal fees or for the $300,000 settlement.
Holiday Inns, Inc. Litigation
RSI Corporation (now Delta Woodside), the former parent corporation of
the Company, and Sparjax Corporation, RSI Corporation's now-dissolved
subsidiary, are among several defendants in a lawsuit filed on July 29, 1993 by
Holiday Inns, Inc. in the Circuit Court of the Fourth Judicial Circuit for
Duval County, Florida. In connection with the distribution of the Company's
common stock to the shareholders of RSI Corporation in 1989, the Company
indemnified RSI Corporation against certain types of potential liabilities and
expenses, including those arising in connection with the lawsuit by Holiday
Inns, Inc.
This suit seeks indemnification for payments made or to be made by
Holiday Inns, Inc., as the guarantor, to the lessor for obligations under a
land lease agreement allegedly in default. The lease agreement was commenced
in 1967 and has a term of ninety-nine years. The lessor under the lease
agreement was originally Fernandina Contractors, Inc., and by assignment is
currently Sam Spevak. Holiday Inns, Inc. was the original lessee under the
lease agreement. Payments under the lease agreement are the greater of $24,000
annually or the highest average annual payments during any five-year period
during the first twenty (20) years of the lease, using a percentage of income
formula.
The lessee's interest in the lease agreement has been assigned to a
series of parties including RSI Corporation and Sparjax Corporation. RSI
Corporation was the lessee under the lease agreement from June, 1979 to August,
1979, and Sparjax Corporation was the lessee thereunder from August, 1979 to
January, 1981. The current lessee is American Hotel Investors, Inc. ("AHI").
AHI allegedly has failed to make lease payments due under the lease agreement
and otherwise to comply with its obligations under the lease agreement.
Holiday Inns, Inc. has alleged that Sparjax Corporation, which is the
assignee of the lease agreement from RSI Corporation, is in breach of a written
Indemnification Agreement executed by Sparjax Corporation
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in favor of Holiday Inns, Inc. upon its assumption of the lease agreement in
1979. All of the outstanding common stock of Sparjax Corporation was acquired
by RSI Corporation during fiscal 1983, and Sparjax Corporation was dissolved by
forfeiture during fiscal 1990. In connection with such dissolution, no
material assets were distributed from Sparjax Corporation to RSI Corporation.
Other than as described herein, there is no contractual relationship whatsoever
between RSI Corporation and Holiday Inns, Inc.
On or about September 23, 1992, Sam Spevak filed a lawsuit against
Holiday Inns, Inc. for allegedly failing to pay monthly rent under the lease
agreement. This lawsuit is pending in the Circuit Court of the Fourth Judicial
Circuit, in and for Duval County, Florida. On May 4, 1993, Sam Spevak filed a
Second Amended Complaint seeking from Holiday Inns, Inc. unpaid rent, unpaid
taxes, interest, attorney fees and costs. On November 19, 1993, Sam Spevak
filed a Third Amended Complaint in the Court seeking from Holiday Inns, Inc.
unpaid rent, unpaid taxes, attorneys fees and costs, and seeking a declaratory
judgment against Holiday Inns, Inc. to establish whether or not Holiday Inns,
Inc. is liable for costs of repair and maintenance to the leased premises.
Holiday Inns, Inc. amended its complaint to assert similar claims against all
subsequent lessees (including RSI Corporation and Sparjax Corporation) under
the lease agreement, seeking indemnification against sums paid or to be paid to
Sam Spevak pursuant to his lawsuit.
The most recent activity in the case has been a cross-claim filed by
Mr. Donald Roberts against all assignees of W. M. R., Inc., including RSI
Corporation and Sparjax Corporation. Mr. Roberts was an individual guarantor
of W. M. R., Inc.'s obligations under the land lease. Counsel for RSI
Corporation and Sparjax Corporation have moved to dismiss Mr. Roberts'
cross-claims and the court has granted these motions, without prejudice.
Counsel for Sparjax Corporation and RSI Corporation have informed the Company
that the cross-claims do not raise any new substantive issues, but merely seek
indemnification from all assignees in the event that Mr. Roberts is required to
pay Holiday Inns, Inc. on his individual guaranty.
With respect to RSI Corporation's maximum exposure in this case,
Holiday Inns has asserted that RSI Corporation and all other lessees are
obligated to reimburse it $259,201 for rent it paid to the landlord as a result
of AHI's failure to pay under the lease. This amount, however, only represents
delinquent rent through October 13, 1993, because Holiday Inns contends that
the lessee's obligations under the lease terminated on that date as a result of
James "Duke" Williams evicting AHI on behalf of the landlord. Mr. Spevak
claims, however, that as of January, 1995, he is entitled to past monthly
rental and interest (from October 13, 1993 through December 20, 1994) of
$82,289 plus future monthly rental through the end of the lease term in 2068 of
$1,834,565 (which sum represents the present value using a 6.5% discount rate).
If Mr. Spevak is successful in proving his claim, RSI Corporation's exposure
includes these latter amounts. In addition, should the court determine that
Holiday Inns, Inc. has an obligation to pay the cost of repairs and maintenance
incurred to date and throughout the balance of the lease term, the amount of
such costs could be substantial but cannot be quantified with any reasonable
degree of accuracy. The Company believes the existing motel property is in a
state of disrepair such that it is not commercially usable. The City of
Jacksonville has recently sent notice, presumably to all parties involved in
this lawsuit, threatening to condemn the property and demolish the entire
structure. If that occurs, and the Court determines that the lessees
17
<PAGE> 18
have an obligation to maintain the property during the lease term, RSI
Corporation's exposure could also include the costs of demolition and the
expense of rebuilding the hotel. This liability, of course, cannot be
accurately estimated at this time, but no doubt involves a very substantial
amount.
RSI Corporation denies any liability to Holiday Inns, Inc. and intends
to defend this matter vigorously. Upon a motion of counsel for RSI
Corporation, Holiday Inns, Inc.'s claims against RSI Corporation were dismissed
without prejudice, but Holiday Inns, Inc. has filed an Amended Complaint to
reinstate certain of its claims, and to add a claim for equitable subrogation,
against RSI Corporation and Sparjax Corporation. Counsel for RSI Corporation
and Sparjax Corporation has answered the equitable subrogation claim, and has
moved for dismissal with prejudice with respect to the claims that have
previously been dismissed.
The deposition of James "Duke" Williams, a critical witness in the
case, has now been taken. Mr. Williams was involved in a contract to assume
the lease from Holiday Inns, Inc., which contract was later canceled by Holiday
Inns, Inc. The parties are presently scheduling the depositions of other
important fact witnesses. These include Mr. Spevak and several of the other
officers of Holiday Inns, Inc. who were involved in the negotiations to cancel
the lease with Mr. Williams. The mediation conference held in January, 1995
was not successful. No trial date has been set.
If found liable for any sum as a result of Holiday Inns, Inc.'s
claims, the Company believes RSI Corporation and Sparjax Corporation would have
a claim in equity against AHI, the current and allegedly defaulting lessee
under the lease agreement, and its principal shareholders, who in the aggregate
guaranteed AHI's obligations under the lease for up to $150,000. AHI is a
private corporation and the Company has no information regarding the financial
ability of AHI or its principal shareholders to perform AHI's obligations under
the lease or to reimburse any third party for any payments made under the lease
as a result of the lawsuit described above.
The ultimate outcome of this matter is not known. No provision has
been made in the accompanying financial statements for any liability which may
result from this matter.
Other Litigation
On January 12, 1995, a Mr. Cesar A. Cuenca served a complaint against
the Company in the 11th Judicial Circuit Court, Dade County, Florida seeking
damages in excess of the minimal jurisdictional amount of the Court, exclusive
of costs and interest, and demanding costs of the action together with such
further relief as the Court shall deem fit. The Plaintiff alleges that he was
injured while operating a vehicle that was sold by the Company. The Complaint
also named the manufacturer of the vehicle. The manufacturer has agreed to
provide full and complete indemnification to the Company based on the facts
known to date. There has been no suggestion in the litigation that the Company
did anything other than sell what is alleged to have been a defective product.
Accordingly, unless additional allegations are made against the Company, the
Company expects to continue to receive full indemnity and defense from the
manufacturer. The plaintiff recently amended the complaint to add the School
Board of Dade County as a defendant for negligent maintenance of the subject
premises. The
18
<PAGE> 19
Company believes, based on the arrangements with the manufacturer of the
vehicle and the Company's own insurance, that there is no known exposure to the
Company from this litigation.
On February 4, 1994, a Mr. Everette Moncur and Edwina Moncur, his
wife, served a complaint against the Company in the 17th Judicial Circuit
Court, Broward County, Florida seeking damages in excess of $15,000 for
injuries sustained while operating a turf care product sold by the Company.
The complaint also named the manufacturer of the product. The manufacturer and
its insurance carrier have accepted defense of the Company regarding this
matter. The Company believes, based on the arrangements with the manufacturer,
the manufacturer's insurance company, and the Company's own insurance, that
this action should not have a material adverse effect on the Company's
financial position.
ITEM 2. CHANGES IN SECURITIES*
ITEM 3. DEFAULTS UPON SENIOR SECURITIES*
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS*
ITEM 5. OTHER INFORMATION*
*Items 2, 3, 4 and 5 are not presented as they are not applicable or the
information required thereunder is substantially the same as information
previously reported.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Listing of Exhibits
3.1 Articles of Incorporation of RSI Holdings, Inc., as amended:
Incorporated by reference to Exhibits 3.2 and 3.2.2 to the
Registration Statement on Form S-4 of RSI Corporation and
Porter Brothers, Inc., File No. 33-30247 (the "Form S-4").
3.1.1 Articles of Amendment and Certificate of Reduction of Capital
of Porter Brothers, Inc.: Incorporated by reference to Exhibit
4.1 to the Form 8-K of the Registrant filed with the
Securities and Exchange Commission on November 28, 1989, File
No. 0-7067.
3.2.1 By-laws of RSI Holdings, Inc., as amended: Incorporated by
reference to Exhibit 3.2.1 to the Form S-4.
3.2.2 Amendment to By-laws of RSI Holdings, Inc.: Incorporated by
reference to Exhibit 3.2.2 to the Form 10-KSB of the
Registrant filed with the Securities and Exchange Commission
on October 22, 1996.
4.1 Specimen of Certificate for RSI Holdings, Inc., common stock:
Incorporated by reference to Exhibit 4.1.2 to the Form S-4.
4.2 See Exhibits 3.1, 3.1.1, 3.2.1, and 3.2.2.
10.1 Loan Agreement dated December 12 1996 by and among, the
Company, CambridgeBanc, Inc. and First Union National Bank,
together with related documents (omitting schedules and
exhibits). The Company hereby agrees to furnish upon the
request of the Commissioner any omitted schedule or exhibit.
19
<PAGE> 20
27 Financial Data Schedule (electronic filing only)
(b) Reports on Form 8-K
Registrant filed a Current Report on Form 8-K, dated November 12,
1996, with respect to the purchase of the outstanding common stock of
CambridgeBanc, Inc.
Registrant filed a Current Report on Form 8-K, dated November 25,
1996, with respect to the Settlement Agreement and Release dated as of November
18, 1996 relating to the settlement of the environmental contingent liability
of Wiegmann & Rose.
20
<PAGE> 21
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.
RSI HOLDINGS, INC.
--------------------------------
January 14, 1997 /s/ Joe F. Ogburn
- ------------------ --------------------------------
(Date) Joe F. Ogburn,
Vice President and Treasurer
(Principal Accounting Officer)
21
<PAGE> 1
EXHIBIT 10.1
<PAGE> 2
THIS AGREEMENT IS SUBJECT TO ARBITRATION
PURSUANT TO S. C. CODE SECTION 15-48-10 ET SEQ.
LOAN AGREEMENT
THIS LOAN AGREEMENT, dated to be effective as of December 12, 1996
(the "Agreement"), is made and entered into by and among FIRST UNION NATIONAL
BANK OF SOUTH CAROLINA, a national banking association with its principal place
of business located in Greenville, South Carolina ("First Union"),
CAMBRIDGEBANC, INC. a corporation organized and existing under the laws of the
State of South Carolina (the "Borrower"), and RSI HOLDINGS, INC., a corporation
organized and existing under the laws of the state of North Carolina ("RSI");
Preliminary Statement
Borrower originates mortgage loans secured by first, second, and third
lien priority mortgages on residential properties located primarily in South
Carolina, North Carolina and Georgia. Borrower customarily sells and transfers
such mortgage loans and the collateral therefor to certain purchasers or
investors within a reasonable time after the making of said loans. Borrower has
requested and First Union has agreed to extend a revolving line of credit loan
to the Borrower in the original principal amount of up to Five Hundred Thousand
and No/100 Dollars ($500,000.00) (the "Loan") pursuant to the terms and
conditions of this Agreement (as this Agreement may be amended, modified or
restated in the future). Advances under the Loan will be used by Borrower to
finance FHA Title I and Conventional Loan Mortgage.
NOW, THEREFORE, in consideration of the respective representations and
agreements hereinafter contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
For the purposes of this Agreement, in addition to the definitions set
forth above, the following terms shall have the following meanings:
Section 1.1 "Advance" means that portion of the Loan proceeds of the
Committed Amount disbursed by First Union upon request from time to time by
Borrower.
Section 1.2 "Bailee Agreement" means the Bailee Agreement between
Borrower, First Union and Purchaser in the form set forth in Exhibit A attached
hereto.
Section 1.3 "Business Day" means any day upon which banks are open for
business in Greenville, South Carolina.
Section 1.4 "Capital Contribution Agreement" means that certain
Capital Contribution Agreement between Borrower, RSI, and First Union dated of
even date herewith and attached hereto as Exhibit B.
Section 1.5 "Collateral" means, collectively, (i) the Mortgage Notes,
(ii) all other documents and instruments executed in connection with the
closing of a Mortgage Loan including, without limitation, all Mortgages, and
(iii) all products and proceeds of any of the foregoing, including without
limitation all insurance proceeds relating thereto, whether now owned or
hereafter acquired, wherever located.
<PAGE> 3
Section 1.6 "Collateral Documents" means the Mortgage Notes, Mortgage
and other documents delivered to First Union by Borrower pursuant to Section
2.3.3.
Section 1.7 "Committed Amount" means the principal amount of up to
Five Hundred Thousand and no/100 Dollars ($500,000) which may be advanced by
First Union under the Note, subject to the limitations and conditions in this
Agreement.
Section 1.8 "Consolidated Tangible Net Worth" means, at any time as of
which the amount thereof is to be determined, the consolidated total assets of
Borrower less consolidated total liabilities of Borrower, excluding debt fully
subordinated to the Loan (if any), after subtracting therefrom the aggregate
amount of any intangible assets of Borrower, including, without limitation,
goodwill, franchises, licenses, patents, trademarks, trade names, copyrights,
service marks, and brand names, all computed in accordance with GAAP applied on
a consistent basis.
Section 1.9 "Controlled Cash Flow Account" means account no.
2010000314483 maintained by Borrower at First Union's principal banking office
in Greenville, South Carolina until Borrower and Lender enter into the
Controlled Cash Flow Plus Services Description And Master Agreement pursuant to
which a new account with First Union shall supplant the aforementioned account
as the Controlled Cash Flow Account, each of which accounts shall be for the
purpose of facilitating Advances under this Agreement.
Section 1.10 "Controlled Cash Flow Plus Services Description and
Master Agreement" means that certain Controlled Cash Flow Plus Services
Description and Master Agreement between First Union and Borrower.
Section 1.11 "Conventional Loan Mortgage" means a mortgage securing a
non-insured consumer loan originated by Borrower, the proceeds of which the
individual borrower agreed to use for a home improvement project or debt
consolidation.
Section 1.12 "Default" means any event, occurrence or condition that,
with the giving of notice, lapse of time, or both, would constitute an Event of
Default.
Section 1.13 "Event of Default" means any of the occurrences described
as such in Article IX hereof.
Section 1.14 "FHA Mortgage" means a mortgage that is either partially
or completely insured by the Federal Housing Administration of the United
States Department of Housing and Urban Development, or its successor (the
"FHA"), under the National Housing Act or Title I of the Housing Act of 1934 or
with respect to which there is a current, binding and enforceable commitment
issued by the FHA to insure such mortgage.
Section 1.15 "GAAP" means those principles of accounting set forth in
pronouncements of the Financial Accounting Standards Board of the American
Institute of Certified Public Accountants or that have other substantial
authoritative support and are applicable in the circumstances as of the date of
a report, as such principles are from time to time supplemented and amended.
Section 1.16 "Indebtedness" means, with respect to Borrower, all
indebtedness of Borrower for borrowed money, all indebtedness of Borrower for
the acquisition of property other than purchases of products and merchandise in
the ordinary course of business,
<PAGE> 4
indebtedness secured by any lien on the property of Borrower, whether or not
such indebtedness is assumed, all liability of Borrower by way of endorsements
(other than for collection or deposit in the ordinary course of business); all
contingent obligations; all capitalized leases and other items which in
accordance with GAAP are classified as liabilities on a balance sheet;
provided, however, that in no event shall the term Indebtedness include trade
payables incurred in the ordinary course of business, capital stock, surplus
and retained earnings, minority interest in the common stock of subsidiaries,
reserves for deferred income taxes and investment credits, other deferred
credits and reserves, and deferred compensation obligations.
Section 1.17 "Loan Documents" means this Agreement, the Note, the
Security Agreement, the Capital Contribution Agreement, and all other
instruments, documents and agreements executed and/or delivered pursuant to the
terms of this Agreement and any and all amendments modifications and/or
extensions to any of the foregoing.
Section 1.18 "Mortgage" means any mortgage executed by a Mortgagor
pursuant to a Mortgage Loan as security for obligations under its respective
Mortgage Note.
Section 1.19 "Mortgage Loan" means any mortgage loan to finance an FHA
Mortgage or a Conventional Loan Mortgage which First Union has determined in
its reasonable sole discretion to be acceptable as security for the Note (i)
which has been made to a Mortgagor by Borrower and (ii) for which a Purchase
Commitment been issued to Borrower.
Section 1.20 "Mortgage Note" means a secured promissory note executed
by a Mortgagor to evidence indebtedness for a Mortgage Loan.
Section 1.21 "Mortgagor" means a person who has received a Mortgage
Loan originated by Borrower.
Section 1.22 "Note" means the promissory note from Borrower to First
Union dated of even date herewith in the principal amount of up to $500,000.00
substantially in the form set forth in Exhibit C attached hereto, together with
any renewals or extensions thereof or substitutions therefor, and any
modifications or amendments thereto.
Section 1.23 "Permitted Liens" means those liens set forth on Rider A
attached hereto and incorporated herein by reference or those approved by First
Union in writing in its sole discretion.
Section 1.24 "Prime Rate" means that rate of interest per annum
announced by First Union in Greenville, South Carolina from time to time as its
"Prime Rate." The Prime Rate is one of several interest rates used by First
Union in calculating interest on loans to its customers and is not necessarily
the best or lowest interest rate offered by First Union.
Section 1.25 "Purchase Commitment" means the written agreement or
confirmation of a Purchaser to purchase from Borrower, in accordance with the
requirements set forth by such Purchaser, one or more specified Mortgage Notes
and related Mortgages which agreement or confirmation was received prior to the
date that an Advance funding of the respective Mortgage Loan was made.
Section 1.26 "Purchase Price" means the amount to be paid by a
Purchaser to Borrower as set forth in a Purchase Commitment for the purchase of
any specified Mortgage Note(s) and related Mortgage(s).
Section 1.27 "Purchaser" means any person or entity reasonably
<PAGE> 5
acceptable to First Union that has issued a Purchase Commitment with respect to
the purchase of a Mortgage Note or Mortgage Notes and related Mortgage or
Mortgages. First Union's entering into a Bailee Agreement with a potential
Purchaser shall be deemed to constitute approval of such entity as a Purchaser.
Section 1.28 "Security Agreement" means the Security Agreement from
Borrower to First Union in which Borrower grants to First Union a first
priority security interest in the Collateral.
Section 1.29 "Termination Date" means April 30, 1998, or such later
date as may be designated in writing from time to time by First Union in its
sole discretion.
Section 1.30 Other Terms. All of the terms defined in this Agreement
shall have such defined meaning when used in the Exhibits attached hereto
unless expressly provided otherwise therein or the context of the Exhibit shall
require otherwise. All references to Borrower and to First Union shall be
deemed to include any successor or permitted assign of either thereof. The
terms "hereof," "herein," "hereunder," "hereto," and similar terms shall be
deemed to refer to this Agreement as a whole and not to any particular
provision thereof, unless the context shall clearly require otherwise.
ARTICLE II
THE LOAN
Section 2.1 Amount of Loan; Limitation on Advances. Subject to
the terms, provisions, conditions and warranties of this Agreement, First Union
shall from time to time during the term of this Agreement, and subject to the
express limitations set forth in Section 2.2 or elsewhere in this Agreement,
advance to Borrower such amounts as Borrower may reasonably request up to the
Committed Amount. In accordance with the terms of this Agreement, such
Advances may be advanced, paid down, and readvanced, but may not, when
aggregated at any one time outstanding, exceed the lesser of (i) the Committed
Amount or (ii) one hundred percent (100%) of the aggregate amounts disbursed
and outstanding by Borrower under all Mortgage Notes offered to and accepted by
First Union as Collateral hereunder. The provisions of this Section 2.1 shall
limit the obligation of First Union to make Advances hereunder.
Section 2.2 Paydown of Unpurchased Mortgage Loan Advances. In the
event that (i) First Union has not received from Borrower the Purchase Price of
a Mortgage Note in accordance with Section 5.4 or (ii) Section 5.2 is not
fully complied with, Borrower promptly shall repay, by such means as required
by First Union in its sole reasonable discretion, any portion of the
outstanding principal balance of the Loan equal to the amount advanced by First
Union to finance the particular Mortgage Loan(s) evidenced by such unpurchased
Mortgage Note.
Section 2.3 Procedure for Advances
2.3.1 Advance Requests. Borrower shall submit to First Union
a written request stating the amount of a requested advance ("Advance Request"),
certifying that Borrower has received the Collateral Documents required by
Section 2.3.3, and committing Borrower to deliver any original instruments
(accompanied by a cover letter in the form attached to the Bailee Agreement as
Exhibit A) to Purchaser as bailee for First Union pursuant to a Bailee Agreement
between Purchaser, First Union and Borrower. Such Advance Request shall also
certify
<PAGE> 6
compliance by Borrower with all Loan Documents and be reasonably acceptable to
First Union in all respects. First Union shall accept a facsimile of the
Advance Request and/or any accompanying document(s) until originals may be
delivered to First Union.
2.3.2 Funding Advances; Controlled Cash Flow Account.
First Union shall not be obligated to fund any Advance unless and until all
requirements of this Agreement have been satisfied, including without
limitation delivery by Borrower of an Advance Request and the Collateral
Documents required by Section 2.3.1 and 2.3.3, respectively. Upon its
satisfaction that the procedures for funding a Requested Advance have been
fulfilled and provided availability exists under the Loan in accordance with
Section 2.1, First Union will make Advances under the Loan into Borrower's
Controlled Cash Flow Account pursuant to customary methods of manual account
management used by First Union in similar situations until Borrower and First
Union have executed the Controlled Cash Flow Plus Services Description and
Master Agreement which then shall control the making of Advances. No Advances
will be made (i) in an amount less than $1,000.00, (ii) if the Controlled Cash
Flow Plus Services Description and Master Agreement has been breached by
Borrower or terminated for any reason, or (iii) after the Termination Date
unless this Loan has been renewed. First Union shall monitor Borrower's
Controlled Cash Flow Account daily to determine if there are any funds in
excess of those required as of 11:00 a.m. eastern standard time (or such other
time as designated by First Union) to cover all items presented for payment to
such account as of such time (the "Excess Funds"). To the extent that Excess
Funds exist, First Union will debit Borrower's Controlled Cash Flow Account by
the amount of such Excess Funds and apply such Excess Funds to the repayment of
the interest and then principal balances due on the Loan.
2.3.3 Delivery of Collateral Documents. If Borrower shall
desire First Union to make Advances under the Note or under any other note
evidencing the Loan, prior to each Advance Borrower shall deliver to Purchaser,
as bailee for First Union as described in the relevant Bailee Agreement,
originals or copies, as distinguished hereinbelow, of the following Collateral
Documents and items and, upon First Union's request, faxes or copies of all
Collateral Documents to First Union, all acceptable to First Union in its sole
discretion, such documents to be used as Collateral for their respective
Mortgage Loan Advances:
(a) The original Mortgage Note of the Mortgagor, together with a
separate Assignment of Mortgage and Mortgage Note in the form of Exhibit D
attached hereto and incorporated herein by reference, which Assignment of
Mortgage and Mortgage Note shall assign such Mortgage Note in blank and shall
be firmly affixed to such Mortgage Note.
(b) A copy of the check payable by Borrower to Mortgagor delivered
at closing of the Mortgage Loan.
(c) Any other original instruments or documents related to the
respective Mortgage Loan reasonably required by First Union, in its sole
discretion.
In addition, Borrower shall deliver to First Union a copy of the
Purchase Commitment related to the Mortgage Loan and the related Mortgage Note.
First Union shall have the right for any reason, at any time during
the term of the Loan, to (i) request that the original Collateral Documents for
any Mortgage Loan be delivered directly to First Union and not directly to the
Purchaser as described above and (ii) request that any Collateral Documents for
any Mortgage Loan be delivered from the
<PAGE> 7
Purchaser to First Union in accordance with the relevant Bailee Agreement.
2.3.4 Assignments. Borrower agrees that, with respect to each
document specified in Section 2.3.3(a), Borrower will obtain and deliver to
Purchaser, as bailee for First Union, such assignments and such other
documents, duly executed by Borrower, as may be reasonably required by First
Union to obtain, perfect and maintain a first and prior security interest
therein, or to acquire the rights of Borrower therein.
2.3.5 Copies of Documents. At First Union's sole option, First Union
may allow Purchaser to accept delivery of copies or facsimiles of the original
documents referenced in Section 2.3.3 of this Agreement accompanied by
certification from Borrower that it has received such documents in connection
with the closing of a Mortgage Loan until the originals of such Collateral
Documents may be delivered to Purchaser. Subject to the provisions of Article
V, in the event the above action is necessary, Borrower shall hold the
originals of such documents in trust for First Union and shall promptly upon
availability of the original documents deliver said originals to Purchaser or,
promptly following the demand of First Union, deliver such documents that are
in the Borrower's possession (as opposed to the possession of the Purchaser) to
First Union. Provided that with regard to a Mortgage, the original shall be
delivered to Purchaser (or First Union if First Union holds the Collateral
Documents for any reason) only after recording in the appropriate real property
records.
Section 2.4 Expiration of First Union's Commitment. First Union's
commitment to made Advances hereunder shall continue in full force and effect
until the Termination Date; provided, however, that the obligations of Borrower
hereunder and the rights, remedies, powers and privileges of First Union under
the Loan Documents shall continue in full force and effect until such
obligation has been paid and performed in full.
Section 2.5 Payment of Fees and Costs. Borrower shall pay all costs,
expenses, and fees (including any and all recording fees and reasonable
attorney's fees) associated with the Loan, and any extensions, renewals,
amendments or modifications thereof.
Section 2.6 Facility Fees. Borrower shall pay to First Union a
fee of Fifty and no/100 Dollars ($50.00) for each originated Mortgage Loan
funded by an Advance under the Loan as a condition precedent to any Advance.
ARTICLE III
USE OF FUNDS
The Advances by First Union shall be used by Borrower solely for the
purpose of making Mortgage Loans to finance FHA Mortgages and Conventional Loan
Mortgages which are approved by First Union as sufficient security for such
Advances.
<PAGE> 8
ARTICLE IV
PAYMENT AND SECURITY
Section 4.1 Amount of the Note. Contemporaneously with the execution
of this Agreement, Borrower will execute and deliver to First Union the Note,
dated the date of this Agreement, in the stated principal amount of Five
Hundred Thousand and no/100 Dollars ($500,000). All Advances made by First
Union to Borrower shall be evidenced by the Note.
Section 4.2 Interest Rate. The outstanding principal balance of the
Note shall bear interest at the Prime Rate plus one percent (1.00% or 100 basis
points) per annum, as that rate may change from time to time, said changes to
be effective as of the effective date of each change in First Union's Prime
Rate, provided, however, that upon the occurrence of a Default or an Event of
Default hereunder and for so long as the Event of Default continues, the rate
of interest on the unpaid principal shall, at the option of First Union, be
increased to three percent (3%) over the rate set forth herein, and/or to the
extent permitted by law, a late charge may also be imposed in an amount not to
exceed five percent (5%) of the unpaid portion of any payment in default for
more than fifteen (15) days. Interest shall be computed on the basis of a year
of 360 days and calculated for the actual number of days elapsed.
Section 4.3 Note Payments. Subject to the provisions of Section 5.3
hereof, Borrower shall pay the principal of and interest on the Note in
accordance with its terms. Each payment of principal and/or interest due
hereunder shall be made in lawful money of the United States of America and in
immediately available funds at such place in Greenville, South Carolina as
First Union shall from time to time designate by notice to Borrower.
Section 4.4 Security Interest. To secure payment and performance of
the Note and the obligations of Borrower hereunder, Borrower hereby grants and
assigns to First Union first and prior liens on and security interests in and
to the Collateral, including but not limited to all Mortgage Notes in
connection with all Mortgage Loans originated by Borrower.
Section 4.5 Further Assurances. In furtherance of the creation of a
security interest in the Collateral, Borrower agrees to take such other
reasonable action and to execute, obtain, acknowledge and deliver such other
and further documents as First Union may reasonably request for the pledging,
assigning, granting, confirming, continuing and perfecting of First Union's
security interest in the Collateral.
Section 4.6 Enforcement of the Note. Nothing herein contained shall
affect or impair First Union's right, which is absolute and unconditional, to
enforce the payment of the Note; provided, however, that First Union may not
enforce, or demand enforcement of, any rights or liens with respect to the
Collateral except upon the terms and conditions stated elsewhere in this
Agreement and the Loan Documents.
Section 4.7 Offset. Borrower shall be deemed directly obligated to
First Union in the full aggregate amount outstanding under the Note at any
given time, and First Union shall be entitled to exercise the rights of offset
and/or banker's lien against the interest of Borrower in and to each and every
account and other property of Borrower which is in the possession of First
Union to the extent of such amount, except accounts with respect to which
Borrower is designated as a trustee or an
<PAGE> 9
escrow agent in respect of bona fide third parties, not including any person
who is affiliated with or controlled by, or has an interest in, Borrower or in
which Borrower has an interest.
ARTICLE V
PURCHASE COMMITMENTS AND SALE OF MORTGAGE NOTES
Section 5.1 Compliance with Purchase Commitments. Prior to any
Advance, Borrower shall, upon request of First Union, satisfy First Union that
Borrower can meet the requirements of the Purchase Commitment(s) covering the
Mortgage Notes offered to and accepted by First Union as Collateral hereunder
in connection with the Advances. Borrower shall follow the procedures provided
in any such Purchase Commitment, including, without limitation, provision for
notice to the Purchaser of First Union's security interest in any such Mortgage
Note.
Section 5.2 Sale of Mortgage Notes; Pledge of Borrower's Account;
Acknowledgment of Bailment. With respect to each Mortgage Loan, Borrower
agrees that the Mortgage Note and Collateral Documents shall be sold to the
Purchaser who issued the Purchase Commitment covering the Mortgage Note within
the time provided in the Purchase Commitment (which shall be no more than
fifteen (15) days from the date of the Advance funding the respective Mortgage
Loan) and that such Purchaser shall be instructed to pay the Purchase Price
thereof directly to Borrower who shall then pay such amounts to First Union in
the manner required by First Union herein. Borrower agrees to deliver the
originals of the Mortgage, Mortgage Note, the Collateral Documents and any and
all other documents required herein for each Mortgage Loan directly to the
Purchaser under cover of a bailee letter in form and content acceptable to
First Union (substantially in the form attached to the Bailee Agreement
attached hereto as Exhibit A), and, upon First Union's request, to provide
copies of all such documents, along with any other documents requested by First
Union, to First Union. Borrower acknowledges that failure of Purchaser to
comply with the terms of the bailee letter, shall result in Borrower being
required to repay the Loan, or a portion thereof, in accordance with the terms
of Section 2.2.
Section 5.3 Application of Purchase Price. Upon receipt by First
Union from Borrower of the Purchase Price paid by any Purchaser for a Mortgage
Note, First Union will apply the same in reduction of the outstanding balance
of the Loan. First Union agrees to release to Borrower any portion of the
Purchase Price paid by the Purchaser in excess of the amount advanced by First
Union for such Mortgage Note, unless an Event of Default under Section 9.1 has
occurred and is continuing.
Section 5.4 Removal of Mortgage Notes. In the event that
Borrower does not sell a Mortgage Note to a Purchaser or First Union has not
received the full Purchase Price from the Purchaser within (a) fifteen (15)
days from the date First Union advances funds to Borrower to finance the
Mortgage Loan as evidenced by such Mortgage Note, then Borrower, promptly
following the request of First Union, shall remove such Mortgage Note and
Mortgage from the Collateral and repay the outstanding principal balance of the
Loan, in accordance with Section 2.2, by an amount equal to the amount advanced
by First Union for any Mortgage Loan evidenced by such removed Mortgage Note
and Mortgage.
<PAGE> 10
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to First Union that:
Section 6.1 Existence. It is a corporation duly organized,
validly existing and in good standing under the laws of South Carolina, and
possesses all requisite authority and power to own its properties and to
conduct its business as currently conducted; and is duly qualified as a foreign
corporation to do business and is in good standing in every jurisdiction in
which the nature of its business makes such qualification necessary.
Section 6.2 Financial Condition. The financial condition of Borrower
is the same as or better than was represented to First Union by Borrower in
financial reports furnished to First Union at the time of Borrower's
application for the Loan, which financial reports stated an initial equity
contribution of RSI of at least $500,000.00 in the form of United States
Treasury Bills and the form of such equity contribution has not been reduced or
changed except the form of such equity contribution may have been changed to
(i) deposits and/or certificates of deposit with First Union or any other
Federally Insured Savings Institution approved by First Union in its sole
discretion, (ii) any other United States Government or United States Government
Agency obligation with a maturity of five (5) years or less, (iii) any form of
equity approved by First Union in its sole discretion, or (iv) any combination
of the above.
Section 6.3 Power and Authority. It is duly authorized to enter
into, execute and deliver this Agreement, to undertake the transactions
contemplated by this Agreement, and to carry out its obligations hereunder.
Section 6.4 Corporate Action. The Loan and the execution, delivery
and performance of the Loan Documents have been duly authorized by all
necessary corporate action.
Section 6.5 Enforceability. When duly executed and delivered on
behalf of Borrower, and assuming the due authorization, execution and delivery
by First Union of this Agreement and the Security Agreement, this Agreement,
the Security Agreement and the Note shall constitute valid and binding
obligations of Borrower enforceable in accordance with their terms.
Section 6.6 Compliance. The execution, delivery and performance of
and compliance with the terms of this Agreement, the Note, the Security
Agreement and the other Loan Documents will not cause Borrower to be: (i) in
violation of any applicable laws which could have any material adverse effect
whatsoever upon the validity, performance or enforceability of any of the terms
of this Agreement, the Note, the Security Agreement, or the other Loan
Documents; or (ii) in default (nor has any event occurred which, with notice or
lapse of time or both, would constitute a default) under any agreement or
instrument to which Borrower is a party or under which Borrower or any of its
property is bound, and which would materially adversely affect Borrower. The
execution, delivery and performance of this Agreement and the other Loan
Documents will not give rise to any lien, or any obligation to grant a lien,
under any contract, agreement to other instrument to which Borrower is a party
or which may be applicable to Borrower or any of its property, except as
otherwise provided herein.
Section 6.7 Actions and Proceedings. There are no pending or
<PAGE> 11
threatened orders, claims, actions, investigations or proceedings before or by
any court, arbitrator or governmental or administrative body or agency, whether
or not covered by insurance, which may materially adversely affect the
properties, business or condition, financial or otherwise, of Borrower or in
any way materially adversely affect or call into question (i) the power and
authority of Borrower to enter into or perform this Agreement, the Note, the
Security Agreement or other Loan Documents or (ii) the title to his or her
office of any officer or director of Borrower.
Section 6.8 Condition of Mortgaged Premises. On the date of each
Mortgage, the property covered by that Mortgage shall consist of land and a
building thereon which is completed and ready for occupancy as one to eight
family dwellings.
Section 6.9 Property Insurance. Borrower shall require of each
Mortgagor that the building or buildings on the property covered by each
Mortgage will be kept continuously insured at all times by a responsible
insurance company reasonably acceptable to First Union against fire and
extended coverage hazards with a New York standard mortgagee clause, without
contribution, with loss payable to Borrower and its successors and assigns.
The policy shall be in an amount equal to the lesser of the maximum insurable
value of the improvements or the original principal amount of the Mortgage Loan
without reduction by reason of any co-insurance, reduced rate contribution, or
similar clause of the policies.
Section 6.10 Lien. Each Mortgage shall constitute an enforceable
lien on the property covered by the Mortgage subject only to exceptions which
in the judgment of First Union and its legal counsel do not impair the priority
of the lien or the quality of the title. Any title insurance policy insuring
said lien (in the event that title insurance is required by the respective
Purchaser) shall be issued in favor of Borrower and its successors and assigns
and shall contain no exceptions that would prohibit the Mortgage Note from
being sold to a Purchaser.
Section 6.11 No Default Under Mortgage Note. At the time of
transfer of any Mortgage Note to First Union, no event of default under such
Mortgage Note as to payment of any installment of principal or interest or
otherwise shall have occurred and be continuing.
Section 6.12 No Default Under Agreement. There is not now and
will not be at the time of any Advance, a Default or an Event of Default
hereunder, or under the Note or under any other note evidencing the Loan, or
under any of the other Loan Documents or any circumstances which, with notice
or lapse of time or both, could become an Event of Default hereunder or
thereunder.
Section 6.13 Disclosure Requirements. In connection with each
Mortgage and the loan transaction evidenced and secured thereby, all
requirements of the Truth in Lending Act, as amended, and of Regulation Z of
the Board of Governors of the Federal Reserve System, any similar state statute
or regulation, the Real Estate Settlement Procedures Act of 1974, as amended
(and Regulation X promulgated thereunder), and any other applicable federal or
state consumer protection act, rule or regulation will have been fully
satisfied and complied with in all material respects.
Section 6.14 Enforceability of Mortgage. With respect to each
Mortgage Loan financed pursuant to an Advance: (i) the Mortgage and Mortgage
Note will have been duly and validly executed, issued and delivered by the
Mortgagor and will constitute the valid and legally
<PAGE> 12
binding obligations of the Mortgagor enforceable in accordance with their
terms; (ii) to the best knowledge of Borrower compliance by Mortgagor with such
Mortgage and Mortgage Note will not violate any law, or any other instrument or
agreement binding upon Mortgagor; and (iii) all applicable requirements of all
laws, rules, orders and regulations of any governmental authority having
jurisdiction over such Mortgage, Mortgage Note and Mortgagor will have been
fully satisfied and complied with in all material respects.
Section 6.15 ERISA. Each Employee Benefit Plan as defined in the
Employment Retirement Income Security Act of 1974, as amended ("ERISA"),
maintained by Borrower or by any subsidiary of Borrower (if any) meets, as of
the date hereof, the minimum funding standards of Section 302 of ERISA and all
applicable requirements of ERISA and of the Internal Revenue Code of 1986, as
amended, and no "reportable event" (as defined by ERISA) has occurred with
respect to any such plan.
Section 6.16 No Untrue Statements. Neither this Agreement, the
other Loan Documents nor any other agreements, reports, schedules, certificates
or instruments heretofore or simultaneously with the execution of this
Agreement delivered to First Union contains any material misrepresentation or
untrue statement or fact or omits to state any material fact necessary to make
any of such agreements, reports, schedules, certificates or instruments not
misleading.
Section 6.17 Solvency. Borrower is now, and after giving effect
to the Loan will be, able to pay its debts as they become due in the ordinary
course of business.
Section 6.18 Subsidiaries. Except as set forth on Exhibit E
attached hereto and incorporated herein by reference, Borrower does not own any
shares of the capital stock of any company.
Section 6.19 Survival of Warranties and Representations. Borrower
covenants, warrants and represents to First Union that all representations and
warranties of Borrower contained in this Agreement and the other Loan Documents
shall be true at the time of Borrower's execution of this Agreement and the
other Loan Documents, and at the time of each Advance, and shall survive the
execution, delivery and acceptance thereof by the parties thereto and the
closing of the transactions described therein or related thereto and any
investigation at any time made by or on behalf of First Union shall not
diminish First Union's right to rely thereon.
ARTICLE VII
COVENANTS
Section 7.1 Affirmative Covenants. Unless otherwise approved by
First Union in writing
7.1.1 Payment of Obligations. Borrower will make all of the
payments required by the terms of the Note and this Agreement.
7.1.2 Use of Proceeds. Borrower will use the Advances only in
accordance with the terms of this Agreement.
7.1.3 Value of Collateral. Borrower will refrain from any act or
omission that would materially adversely affect the security value of the
Collateral or that would result in the creation of a security interest, lien,
charge, or encumbrance in favor of anyone other than
<PAGE> 13
First Union in or upon the Note or the Collateral.
7.1.4 Inspection and Audits of Books and Records. Borrower will
maintain complete and accurate records and books of account in accordance with
GAAP, including, without limitation, records covering all collections and other
proceeds of each Mortgage Loan, and all payments from a Purchaser with respect
to a Mortgage Loan. Borrower will permit First Union to inspect and to audit
all such records and books and supporting data and to make copies and abstracts
therefrom at its place of business at any time, and from time to time, upon
reasonable notice, during ordinary business hours; and upon request of First
Union, will furnish to First Union any information with respect to any Mortgage
Loan. First Union agrees to conduct any inspection or audit in such a manner
so as not to unreasonably interfere with Borrower's business operations.
7.1.5 Business Continuity. Borrower will conduct its business in
substantially the same manner and in substantially in the same areas as such
business is now and has heretofore been carried on and conducted.
7.1.6 Corporate Existence and Properties. Borrower will comply in
all material respects with all applicable statutes, laws and regulations,
maintain its corporate existence, and maintain, preserve and keep its property
and assets in good repair, working order and condition.
7.1.7 Insurance; Notice of Claims. Borrower will maintain in effect
at all times and at its expense with nationally reputable companies, insurance
policies of such type, against such risks and in amounts at least equal to that
carried by persons in a business of similar size and nature and any additional
insurance policies as may be required by any applicable regulatory agencies.
Borrower shall promptly advise First Union of any embezzlement, fraud,
dishonesty, material errors or omissions within its organization, whether or
not First Union's funds are involved or claim is filed with an insurer, and in
addition, shall promptly notify First Union upon receiving notice from an
insurer that the insurer intends to cancel, reduce or not renew or
restrictively modify any coverage rendered in connection with any fidelity
coverage, or any other insurance coverage carried by Borrower. Borrower shall
in addition maintain insurance coverage in such amounts and in such companies
as First Union may from time to time reasonably require, including but not
limited to fidelity insurance policies, and shall pay promptly all premiums
therefor when due.
7.1.8 Governmental Approval. Borrower will keep in full force and
effect such governmental approvals as may be necessary to comply with the
governmental requirements, if any, relating to the conduct of its business, as
such requirements may exist from time to time.
7.1.9 Payment of Taxes, etc. Borrower will promptly pay all taxes
and other governmental charges or levies imposed upon it or upon its income or
profits or upon any property belonging to Borrower before the same shall become
in default, and all lawful claims for labor, materials, and supplies which, if
unpaid, might become a lien or charge upon its property or any part thereof;
and promptly pay and discharge when due all debts, accounts, liabilities, and
charges now or hereafter owing by Borrower and maintain appropriate accruals
and reserves for all such liabilities in a timely fashion in accordance with
GAAP; provided, however, that Borrower may delay paying or discharging any such
taxes, charges, claims, or liabilities so long as the validity thereof shall be
contested in good faith by appropriate proceedings and Borrower shall set aside
on its books adequate reserves with respect thereto in accordance with GAAP;
and shall pay such taxes, charges, claims, or
<PAGE> 14
liabilities before the property subject thereto shall be sold to satisfy any
lien which is attached as security therefor, whether by law or otherwise, and
before any judgment shall attach to any property of Borrower.
7.1.10 Litigation; Material Adverse Changes; Event of
Default. Borrower will promptly notify First Union of (i) the existence and
status of any litigation, (ii) any material adverse change in the financial
condition or the business of Borrower, (iii) any material change in Borrower's
management personnel, (iv) any change in any material fact or circumstances
represented or warranted in this Agreement, (v) the occurrence of any Default
or Event of Default hereunder, (vi) the occurrence of a default under any
material agreement, contract, or other instrument to which Borrower is a party
or by which any material portion of its properties is bound or the acceleration
of the maturity of any Indebtedness of Borrower in excess of an aggregate amount
of $25,000.00, and (vii) the receipt by Borrower of any notice of termination
or cancellation in whole or in part of any material contracts.
7.1.11 Maintain Security Interests. Borrower will perform
all such acts and execute such instruments and documents as First Union may
reasonably request in order to enable First Union to report, file and record
every instrument that First Union may deem necessary to perfect and maintain the
security interests granted hereby in favor of First Union and to preserve and
protect the rights of First Union hereunder and reimburse First Union for all
costs incurred in connection therewith.
7.1.12 Depository Relationship. Borrower will maintain its
primary depository accounts with First Union.
7.1.13 Financial Statements. (i) Borrower and RSI will each
deliver to First Union, as soon as available and in any event within ninety
(90) days after the last day of each fiscal year-end during the term of the
Loan, audited financial statements indicating the respective company's financial
condition and results of operations as of and for the year ended on such last
day accompanied by the opinion, without material disclaimer or qualification, of
RSI's independent certified public accountants as of the closing date of the
Loan, that such financial statements were prepared in accordance with GAAP and
represent fairly the financial condition and results of operations of the
respective company, and (ii) deliver to First Union, as soon as available and
in any event within thirty (30) days after each fiscal month-end, internally
prepared financial statements indicating the financial condition and results of
operations of Borrower (a) as of and for such month and (b) as of and for the
period from the beginning of the current fiscal year to such last day,
accompanied by a certificate executed by the President, chief financial officer
or chief accounting officer of Borrower certifying as to the truth and accuracy
of the financial statements and that, to the best of his/her knowledge, such
financial statements were prepared in accordance with GAAP. All financial
statements must be in form and content reasonably acceptable to First Union and
must include balance sheets, profit and loss statements, and a statement of
cash flows with a supporting schedule. In the event RSI changes its certified
public accountants prior to the Termination Date, First Union shall approve, in
its sole discretion, the certified public accountants preparing the financial
statements required in (i) above for the remainder of the term of the Loan.
7.1.14 Observe all Laws. Borrower will conform to and duly
observe all applicable laws, regulations and other valid requirements of any
regulatory authority with respect to the conduct of its business.
<PAGE> 15
7.1.15 Capital Contribution Agreement. Through the
Termination Date, RSI will provide any capital contributions to Borrower
necessary to enable Borrower to maintain a minimum Consolidated Tangible Net
Worth of Borrower of $500,000.00, as more specifically described in the Capital
Contribution Agreement.
7.1.16 Operating Losses. RSI will fund any operating losses
incurred by Borrower in accordance with the Capital Contribution Agreement.
7.1.17 Forms of Equity. Borrower and RSI will maintain at least
$500,000.00 worth of equity of Borrower as (i) First Union deposits and/or
certificates of deposits, (ii) deposits and/or certificates of deposit of any
other Federally Insured Institutions approved by First Union in its sole
discretion, (iii) United States Government or United States Government Agency
Obligations with a maturity of five (5) years or less, (iv) any form approved
by First Union, or (v) any combination of the above.
7.1.18 Future Purchasers. Before selling Mortgage Loans to Purchasers
who are not Purchasers as of the closing date of the Loan, Borrower will submit
the names of such potential Purchasers and any other information reasonably
required by First Union to First Union for approval, in its sole reasonable
discretion, and upon receipt of such approval by First Union, shall require
such Purchaser to execute a Bailee Agreement prior to the execution of any
Purchase Commitment or the sale of any Mortgage Loan to such potential
Purchaser.
Section 7.2 Negative Covenants of Borrower. Borrower covenants and
agrees that, until payment in full of the Loan, Borrower will not, without the
prior written consent of First Union:
7.2.1 Merger or Consolidation; Acquisitions. Directly or indirectly
merge or consolidate with or acquire any of the capital stock or assets of any
corporation.
7.2.2 Sale of Assets. Directly or indirectly sell or otherwise
dispose of (through liquidation, dissolution or otherwise) all or any
substantial amount of its assets, whether tangible or intangible, other than
sales and dispositions of Mortgage Notes and related instruments in the
ordinary course of business for fair and adequate consideration.
7.2.3 Conduct of Business. Except as expressly permitted herein,
engage in any business or conduct any operations other than the business of
extending and/or selling FHA guaranteed and Conventional Loan Mortgages or
similar business activities or make any material expenditure or commitment or
incur any material obligation or enter into or engage in any material
transaction except in the ordinary course of such business.
7.2.4 Distributions or Redemption of Stock. Declare, make or incur
any liability to make, during any fiscal year, any cash dividends or declare,
make or incur any liability to make any other distributions on account of any
shares of any class of capital stock of Borrower or purchase, redeem or
otherwise acquire or retire or make any provision for retirement of any such
shares or distribute through loans, or any other method, cash, capital funds or
other assets of Borrower to any shareholder unless otherwise specifically
permitted hereby.
7.2.5 Transfer of Mortgage Notes. Modify, waive, execute, deliver,
consent to or suffer to exist any release, termination, discharge, substitution
or satisfaction of, or assign or otherwise
<PAGE> 16
dispose of, except as permitted or required hereby or under the Loan Documents,
any Mortgage Note and/or other Collateral then held by or for First Union; or
release any security therefor or obligor thereon; or cause or suffer any such
Collateral to become ineligible for, or lose any benefit of, sale to a
Purchaser or any insurance policy required or provided for by this Agreement;
or compromise, extend, release, or adjust payments on any such Mortgage Note,
except a conveyance of mortgaged property in full or partial satisfaction of
indebtedness secured by a Mortgage.
7.2.6 Loans. Make or permit to exist any loans, advances or
extensions of credit to any person except loans made or acquired in the
ordinary course of its business.
7.2.7 Other Indebtedness. Incur, create, assume or permit to exist
any Indebtedness except (a) Indebtedness to First Union; (b) Indebtedness
existing as of the date hereof as listed on Exhibit F attached hereto and
incorporated here in by reference, which Indebtedness shall be repaid (but not
prepaid) strictly in accordance with the terms thereof as in effect as of the
date hereof; (c) the endorsement of negotiable instruments in the ordinary
course of business for deposit or collection, and (d) any other Indebtedness
approved by First Union in its sole discretion.
7.2.8 Change in Fiscal Year. Change its fiscal year-end.
7.2.9 Tangible Net Worth. Permit its Consolidated Tangible Net
Worth to be less than $500,000.00 at any time.
7.2.10 Ownership and Control. Make or permit any change in
the ownership of Borrower which would effectively change control of Borrower
from RSI.
7.2.11 Guarantees. Guarantee or otherwise become responsible
for any obligation of any other person, corporation, or entity, except for the
endorsement of negotiable instruments by Borrower or its subsidiary, if any, in
the ordinary course of business for collection.
7.2.12 Encumbrances on Assets. Create, assume, or permit to
exist any mortgage, security deed, deed of trust, pledge, lien charge, or other
encumbrance, all of which when aggregated at any one time exceed $10,000.00, on
any of its assets whether now owned or hereafter acquired, other than (i)
security interests required by First Union in related security instruments;
(ii) liens for taxes contested in good faith; (iii) liens accruing by law for
employee benefits; or (iv) Permitted Liens.
7.2.13 Financial Condition. Other than as necessary to
comply with its obligations described in the Capital Contribution Agreement,
RSI will not allow any material adverse change in its financial condition.
ARTICLE VIII
CONDITIONS PRECEDENT
Section 8.1 Prior to Initial Advance. First Union shall not be
obligated to make any Advance hereunder unless it shall have received prior to
the initial Advance, or waived receipt of in writing, each of the following:
(a) this Loan Agreement duly executed and delivered;
<PAGE> 17
(b) the Note duly executed and delivered;
(c) copies of (i) resolutions of Borrower authorizing the
acceptance of the Loan, the execution and delivery of this Agreement and the
other Loan Documents, and the execution of the Note in favor of First Union,
(ii) Borrower's bylaws, and (iii) representations as to authenticity of
signatures and incumbency of officers;
(d) a certificate of existence, certified articles of
incorporation, and tax compliance letter from the state of Borrower's
incorporation;
(e) the Security Agreement, duly executed and delivered
(f) the Capital Contribution Agreement, duly executed and
delivered;
(f) UCC-1 financing statements duly executed and delivered;
(g) Bailee Agreement, duly executed and delivered, for each and
every Purchaser known on the closing date;
(h) Opinion of Borrower's and RSI's counsel opining as to, among
other things, (i) the good standing and due incorporation of Borrower and RSI,
(ii) the due authorization and execution of the Loan Documents by Borrower and
RSI, and (iii) the binding nature and enforceability of the Loan Documents
(subject in each case to customary exceptions and limitations);
(i) Evidence of the insurance policy required under Section 7.1.7;
(j) Payment of all fees and closing costs required hereunder and
under the Loan Documents; and
(k) Such other matters as First Union may reasonably require.
Section 8.2 Upon Each Advance. At the time of any Advances
hereunder, Borrower and RSI shall be in compliance with all of the terms and
conditions to be performed or observed by Borrower and/or RSI set forth in this
Agreement, the other Loan Documents and all other documentation executed
pursuant to this Agreement, and no Default or Event of Default shall have
occurred and be continuing at the time of such borrowing. At the time of each
Advance, Borrower shall also pay the facility fee required in accordance with
Section 2.6 and shall have complied with Section 7.1.19 in the event Borrower
intends to sell the related Mortgage Loan to a new Purchaser.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
Section 9.1 Events of Default. The occurrence of any one of the
following events shall constitute, and be defined as, an "Event of Default"
under this Agreement and the Note:
(a) if Borrower fails to pay any amount due to First Union on its
due date under the Note or this Agreement or otherwise be in default under the
Note except that if failure to pay a principal payment when due in accordance
with Article V is caused by Purchaser's failure to purchase a Mortgage Loan in
accordance with the respective Purchase
<PAGE> 18
Commitment, Borrower shall not be in default unless such principal payment is
not made within fifteen (15) days from the date on which such principal payment
is due.
(b) if Borrower fails to observe or perform any other covenant,
condition, or agreement on its part to be observed or performed under the Note
or this Agreement or the other Loan Documents, and such failure continues for a
period of fifteen (15) days from the date notice is given by First Union to
Borrower of such noncompliance;
(c) if any representation or warranty of Borrower made in this
Agreement, the Note, the other Loan Documents or any certificate or written
statement furnished to First Union in connection herewith or pursuant hereto
was untrue or misleading in any material respect when made;
(d) bankruptcy, insolvency, reorganization, liquidation,
receivership or similar proceedings or actions, including a general assignment
for the benefit of creditors, shall be instituted by or against Borrower and,
if instituted against Borrower shall be pending for thirty (30) days or an
order of relief shall be entered with respect to Borrower; or
(e) the default of Borrower under (i) any other obligation of
Borrower to First Union or (ii) any obligation(s) of Borrower to any third
party creditor, the total aggregate amount of which exceed $25,000.00 at any
time.
(f) other than as necessary to comply with its obligations
described in the Capital Contribution Agreement, the occurrence of a material
adverse change in RSI's financial condition.
Section 9.2 Remedies on Default. Upon the occurrence of any Event of
Default, First Union may elect to exercise any one or more of the following
remedies, in addition to any other rights and remedies otherwise available to
First Union at law or in equity (to the extent not limited by Article X hereof):
(a) declare all amounts payable under the Note to be immediately
due and payable, whereupon the same shall become immediately due and payable
without presentment, demand, protest, notice of intent to accelerate, notice of
acceleration or further notice of any kind, all of which are hereby expressly
waived; provided, however, if an event as described in Section 9.1(d) hereof
has occurred, all amounts payable under the Note shall become immediately due
and payable without the necessity of any action by First Union;
(b) exercise any and all rights, powers and remedies of a secured
party in the Collateral or the proceeds thereof, under the laws of the State of
South Carolina and the Uniform Commercial Code, to protect and enforce its
rights in the Collateral, or any portion thereof, including without limitation:
i. To take immediate possession of all Collateral, whether
now owned or hereafter acquired, without notice, demand, presentment, or resort
to legal process, and, for those purposes, to enter any premises where any of
the Collateral is located and remove the Collateral therefrom;
ii. To require Borrower (or Purchaser pursuant to the Bailee
Agreement) to assemble and make the Collateral available to First Union at a
place to be designated by First Union which is also reasonably convenient to
Borrower.
<PAGE> 19
iii. To retain all Collateral in full or partial satisfaction
of any unpaid Obligations as provided in the South Carolina Uniform Commercial
Code or sell the Collateral at public (at which First Union may be the
purchaser) or private sale after giving at least ten (10) days' notice of the
time and place of the sale to Borrower (such notice constituting reasonable
notice under the South Carolina Uniform Commercial Code) at Borrower's address
shown above or at such other address as may be shown from time to time on the
records of First Union by registered or certified mail, with or without having
the Collateral physically present at the place of the sale .
v. To exercise any and all rights of set-off which First Union
may have against any account, fund, or property of any kind, tangible or
intangible, belonging to Borrower which shall be in First Union's possession or
under its control.
vi. To cure any Event of Default in such manner as deemed
appropriate by First Union. Any costs related to such actions will be an
Obligation of Borrower and secured by the Collateral.
(c) enforce the terms and conditions and exercise the rights, powers,
and remedies contained in any one or more of the instruments, documents and
contracts forming a part of the Collateral, including the rights of collection,
acceleration and foreclosure; and
(d) enforce the terms of the Note or this Agreement by action or
other processing for specific performance or injunction.
Section 9.3 Application of Proceeds. The proceeds derived by or for
the account of First Union from the exercise of its rights, powers and remedies
upon an Event of Default shall be retained and applied by First Union to pay:
(a) first, the reasonable costs and expenses of such exercise,
including any advances made or incurred by First Union to protect the
collateral or First Union's rights therein;
(b) second, any past due indebtedness evidenced by the Note;
(c) third, any other amounts due and payable to First Union under
or with respect to this Agreement; and
(d) fourth, the balance, if any, to Borrower.
Section 9.4 Deficiency. To the extent the proceeds realized from the
disposition of the Collateral shall fail to satisfy any of the foregoing items,
Borrowers, and each of them, shall remain liable to pay any deficiency to First
Union.
Section 9.5 Remedies Not Exclusive. No remedy conferred upon or
reserved to First Union by the terms of this Agreement is intended to be
exclusive of any other remedy, but each and every such remedy shall be
cumulative and shall be in addition to any other remedy given to First Union
hereunder or now or hereafter existing at law or in equity.
Section 9.6 No Implied Waiver. No delay or failure to exercise any
right, power or remedy accruing upon any default or Event of Default shall
impair the same or be construed as a waiver thereof or acquiescence therein;
and every such right and power may be exercised from time to time as often as
may be deemed expedient.
Section 9.7 Resort to Borrower. First Union may, at its option,
<PAGE> 20
pursue any and all rights and remedies directly against any Borrower without
resort to any Collateral.
ARTICLE X
LIMITATIONS OF LIABILITY
Section 10.1 First Union Not Liable. First Union shall not be
liable for the acts of any other party or parties to this Agreement, including
Borrower and its officers, directors, agent or employees in their individual
capacities.
Section 10.2 Limitation of Rights. With the exception of rights
herein expressly conferred, nothing expressed in or to be implied from this
Agreement or the Note is intended or shall be construed to give any person,
corporation, or other entity not a party hereto any legal or equitable right,
remedy or claim under or with respect to this Agreement or the Note.
ARTICLE XI
ATTORNEY IN FACT
During the continuance of an Event of Default, Borrower hereby
irrevocably appoints First Union its attorney in fact, with full power of
substitution, for and on behalf and in the name of Borrower to endorse and
deliver to First Union or any other person any checks, instruments or other
papers coming into First Union's possession representing payments made on
Mortgage Notes or in respect to the Mortgage Notes or Purchase Commitments; to
endorse and deliver in the name of Borrower any Mortgage Note; to do every
other thing necessary or desirable to effect transfer of a Mortgage and related
Mortgage Note to First Union or to any other person in accordance with the
terms of this Agreement; to take all necessary and appropriate action in the
name of Borrower with respect to Mortgage Loans and the servicing of Mortgage
Loans; to commence, prosecute, settle, discontinue, defend, or otherwise
dispose of any claim relating to any Purchase Commitment, Mortgage Loan,
Mortgage Note, or other Collateral; and to sign Borrower's name whenever
appropriate to effect the performance of this Agreement. Notice of the taking
of any such action shall be promptly given to Borrower. This Section shall be
liberally construed so as to give the greatest latitude to First Union's power,
as attorney, to collect, sell and deliver Mortgage Loans as evidenced by
Mortgage Notes and all other documents relating thereto. The power of attorney
conferred by this Section is granted for a valuable consideration and is
coupled with an interest and is irrevocable so long as the Loan shall remain
unpaid.
ARTICLE XII
DELIVERY OF MORTGAGE NOTES
Borrower shall have the right to deliver Mortgage Notes, Mortgages and
other Collateral Documents to a Purchaser or to a courier designated by a
Purchaser for delivery to such Purchaser to be held by Purchaser in accordance
with the terms of the Bailee Agreement. If Borrower holds any Collateral
Documents in lieu of conveying them to a Purchaser in accordance with the
Bailee Agreement Borrower will give First Union a trust receipt therefor in
form and substance satisfactory to First Union. First Union shall in any event
have a continuing security interest in the Collateral. Borrower agrees to
include in any
<PAGE> 21
transmittal of Collateral Documents to a Purchaser or other purchaser (approved
by First Union) a notice, substantially in the form attached to the Bailee
Agreement as Exhibit A, of First Union's security interest in the Mortgage Note
and other Collateral Documents.
ARTICLE XIII
INDEMNITY AND RELEASE
Section 13.1 Indemnity. Borrower agrees to hold First Union
harmless and indemnify it with respect to all costs, losses, damages and
expenses, including court costs and attorneys fees, which First Union may
sustain as a result of (i) any transaction contemplated by this Agreement, (ii)
any failure on the part of Borrower to comply with any provisions of this
Agreement, (iii) the release of any of the Collateral Documents to a Purchaser
or to a courier designated by such Purchaser or (iv) any claim arising in
connection with any Mortgage Loan, including, without limitation, any claim
arising out of the noncompliance of such Mortgage Loan with all applicable
laws, rules and regulations of any governmental authority, including but not
limited to, usury laws, the Truth in Lending Act, Regulation Z of the Board of
Governors of the Federal Reserve System and any similar state statute or
regulation, the Real Estate Settlement Procedure Act of 1974 as amended (and
Regulation X promulgated thereunder), and any other federal or state statute,
act, rule or regulation. This hold harmless and indemnification agreement,
however, shall not extend to any cost, loss, damage or expense caused by First
Union's gross negligence or recklessness.
First Union agrees to exercise good faith and fair dealing in
relations with Borrower in connection with the resolution of any matter
entitling First Union to indemnity under this Section.
Section 13.2 Release. Borrower acknowledges and agrees that First
Union shall have no liability to Borrower or any other person for failure of a
Purchaser to purchase a Mortgage Note in accordance with an Purchase
Commitment, and Borrower hereby releases and discharges First Union from any
and all liability, of every kind and nature, in connection with the failure or
termination of any Purchase Commitment.
ARTICLE XIV
ARBITRATION
Upon demand of any party hereto, whether made before or after
institution of any judicial proceeding, any dispute, claim or controversy
arising out of, connected with or relating to this Loan Agreement and other
Loan Documents ("Disputes") between or among parties to this Loan Agreement
shall be resolved by binding arbitration as provided herein. Institution of a
judicial proceeding by a party does not waive the right of that party to demand
arbitration hereunder. Disputes may include, without limitation, tort claims,
counterclaims, disputes as to whether a matter is subject to arbitration,
claims brought as class actions, claims arising from Loan Documents executed in
the future, or claims arising out of or connected with the transaction
reflected by this Loan Agreement.
Arbitration shall be conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association (the "AAA") and Title 9 of the U.S. Code; provided,
however, that in the event it is determined that Title 9 is not applicable to a
Dispute, the South Carolina Uniform
<PAGE> 22
Arbitration Act, S. C. Code Ann. Section 15-48-10 et seq. shall be the
governing law. All arbitration hearings shall be conducted in Greenville,
South Carolina. The expedited procedures set forth in Rule 51 et seq. of the
Arbitration Rules shall be applicable to claims of less than $1,000,000.00.
All applicable statutes of limitation shall apply to any Dispute. A judgment
upon the award may be entered in any court having jurisdiction. The panel from
which all arbitrators are selected shall be comprised of licensed attorneys.
The single arbitrator selected for expedited procedure shall be a retired judge
from the highest court of general jurisdiction, state or federal, of the state
where the hearing will be conducted or if such person is not available to
serve, the single arbitrator may be a licensed attorney. Notwithstanding the
foregoing, this arbitration provision does not apply to disputes under or
related to swap agreements.
Notwithstanding the preceding binding arbitration provisions, the
parties hereto agree to preserve, without diminution, certain remedies that any
party hereto may employ or exercise freely, independently or in connection with
an arbitration proceeding or after an arbitration action is brought. Any party
hereto shall have the right to proceed in any court of proper jurisdiction or
by self-help to exercise or prosecute the following remedies, as applicable:
(i) all rights to foreclose against any real or personal property or other
security by exercising a power of sale granted under the Loan Documents or
under applicable law or by judicial foreclosure and sale, including a
proceeding to confirm the sale; (ii) all rights of self-help including peaceful
occupation of real property and collection of rents, set-off, and peaceful
possession of personal property; (iii) obtaining provisional or ancillary
remedies including injunctive relief, sequestration, garnishment, attachment,
appointment of receiver and filing an involuntary bankruptcy proceeding; and
(iv) when applicable, a judgment by confession of judgment. Preservation of
these remedies does not limit the power of an arbitrator to grant similar
remedies that may be requested by a party in a Dispute.
The parties agree that they shall not have a remedy of punitive or
exemplary damages against the other in any Dispute and hereby waive any right
or claim to punitive or exemplary damages they have now or which may arise in
the future in connection with any Dispute whether the Dispute is resolved by
arbitration or judicially.
ARTICLE XV
MISCELLANEOUS
Section 15.1 Notices. Any notice required under the Note or this
Agreement shall be in writing, and any notice, certificate, approval, consent,
or other communication required or permitted under the Note or this Agreement
shall be deemed given upon delivery by hand or on the third day following the
day on which the same has been mailed by registered or certified mail, postage
prepaid addressed as follows:
If to Borrower: CambridgeBanc, Inc.
Post Office Box 17918
Greenville, SC 29606
Attn: Mr. Matthew J. Marron, Jr.
If to First Union: First Union National Bank of South Carolina
Post Office Box 17918
Greenville, South Carolina 29602
Attn: Mr. Charles P. Cecil
<PAGE> 23
Any party may, by notice hereunder to each of the other parties, designate any
further or different addresses to which subsequent notices, certificates or
other communications shall be sent.
Section 15.2 Binding Effect. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their successors and assigns.
Section 15.3 Severability. In the event that any provision of
this Agreement or the other Loan Documents shall be held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provision hereof.
Section 15.4 Waiver of Default. First Union may, by written
notice to Borrower, at any time and from time to time, waive any default in the
performance or observance of any condition, covenant or other term hereof or
any Event of Default which shall have occurred hereunder with respect to First
Union and its consequences. Any such waiver shall be for such period and
subject to such conditions as shall be specified in any such notice. In the
case of any such waiver, Borrower and First Union shall be restored to their
former position and rights hereunder and the other Loan Documents, and any
Event of Default so waived shall be deemed to be cured and not continuing; but
no such waiver shall be established by conduct, custom or course of dealing or
extend to any subsequent or other default or Event of Default, or impair any
right or remedy consequent thereon.
Section 15.5 Amendments and Waivers. First Union and Borrower
may, subject to the provisions of this Section 15.5, from time to time, enter
into written agreements supplemental hereto for the purpose of adding any
provisions to this Agreement or the other Loan Documents to which they are
party or changing in any manner the rights of First Union or of Borrower
hereunder, and First Union may execute and deliver to Borrower a written
instrument waiving any of the requirements of this Agreement; provided,
however, no amendment or other modification of this Agreement or any other loan
document to which First Union and Borrower are party shall be effective unless
made in accordance with the provisions of this Section 15.5. Any such written
supplemental agreement or waiver shall be binding upon Borrower and First
Union.
Section 15.6 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of First Union, any right,
power or privilege hereunder, or other conduct, custom or course of dealing,
shall operate as a waiver or amendment of any such right, power or privilege;
nor shall any single or partial exercise of any right, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein and in the
other loan documents provided are cumulative and not exclusive of any rights or
remedies provided at law, in equity or by statute.
Section 15.7 Costs. Any reasonable costs or expenses incurred by
First Union in connection with this Agreement or the enforcement (or defense)
of this Agreement or the Loan Documents, including, all reasonable legal fees
and expenses, shall be paid by the Borrower.
Section 15.8 Survival of Agreements. All agreements,
representations and warranties made herein shall survive the delivery of the
Note and the expiration or termination of this Agreement.
Section 15.9 Headings. Article and Section headings and the
<PAGE> 24
Table of Contents used herein are for convenience of reference only and are not
to affect the construction of, or to be taken into consideration in
interpreting, this Agreement.
Section 15.10 Execution of Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original as against any party whose signature appears thereon, and all of which
shall together constitute one and the same instrument.
Section 15.11 Entire Agreement. This Agreement, together with its
Exhibits, constitute and express the entire understanding between the parties
hereto with respect to the subject matter hereof, and supersedes all prior
agreements and understandings, inducements or commitments, express or implied,
oral or written, except as herein contained.
Section 15.12 Applicable Law. This Agreement and the Note shall be
governed by and construed in accordance with the laws of the State of South
Carolina.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
WITNESSES: CAMBRIDGEBANC, INC.
/s/ Jo W Hackl By: /s/ Matthew J. Marron, Jr.
Printed Name: Matthew J. Marron, Jr.
Title: President
/s/ Jim Warren
FIRST UNION NATIONAL BANK OF SOUTH CAROLINA
/s/ David Gossett By: /s/ Jack Whitener
Printed Name: Jack Whitener
Title: S. V. P.
/s/ Elizabeth Holley
RSI HOLDINGS, INC.
/s/ Jo W Hackl By: /s/ Buck A. Mickel
Printed Name: Buck A. Mickel
Title: VP
/s/ Jim Warren
<PAGE> 25
EXHIBIT A
BAILEE AGREEMENT
Omitted
<PAGE> 26
EXHIBIT B
CAPITAL CONTRIBUTION AGREEMENT
Omitted
<PAGE> 27
EXHIBIT C
FORM OF PROMISSORY NOTE
Omitted
<PAGE> 28
EXHIBIT D
ASSIGNMENT OF MORTGAGE AND MORTGAGE NOTE
Omitted
<PAGE> 29
EXHIBIT E
SUBSIDIARIES
None
<PAGE> 30
EXHIBIT F
SCHEDULE OF INDEBTEDNESS
None
<PAGE> 31
THIS AGREEMENT IS SUBJECT TO ARBITRATION
PURSUANT TO S.C. CODE ANN. SECTION 15-48-10
PROMISSORY NOTE
$500,000.00
December 12, 1996
CambridgeBanc, Inc.
Post Office Box 17918
Greenville, South Carolina 29606
Hereinafter referred to as the "Borrower")
First Union National Bank of South Carolina
1 Beattie Place
Greenville, South Carolina 29602
(Hereinafter referred to as the "Bank")
Borrower promises to pay to the order of Bank, in lawful money of the United
States of America, at its office indicated above or wherever else Bank may
specify, the sum of Five Hundred Thousand and No/100 Dollars ($500,000.00) or
such sum as may be advanced from time to time with interest on the unpaid
principal balance at the rate and on the terms provided in this Promissory Note
(including all renewals, extensions or modifications hereof, this "Note").
SECURITY. Borrower has granted Bank a security interest in the Collateral
described in the Loan Documents, including, but not limited to, (i) personal
property collateral described in that certain Security Agreement of even date
herewith and (ii) Collateral described in those certain Assignments of Mortgage
and Mortgage Note from Borrower to Lender given from time to time during the
term of the Loan as described in the loan agreement dated as of the date hereof
between Borrower, RSI Holdings, Inc., and the Bank (the "Loan Agreement").
INTEREST RATE. Interest shall accrue on the unpaid principal balance of this
Note from the date hereof at the rate of Bank's Prime Rate plus 1.00% (100
basis points) as that rate may change from time to time with changes to occur
on any effective date Bank's Prime Rate changes ("Interest Rate"). Bank's
Prime Rate shall be that rate announced by Bank from time to time as its Prime
Rate and is one of several interest rate bases used by Bank. Bank lends at
rates both above and below Bank's Prime Rate, and Borrower acknowledges that
Bank's Prime Rate is not represented or intended to be the lowest or most
favorable rate of interest offered by Bank.
DEFAULT RATE. In addition to all other rights contained in this Note, if a
Default (as defined herein) occurs and as long as a Default continues, the
rate of interest on the unpaid principal shall at the option of the Bank be
increased to 3% over the Interest Rate ("Default Rate"), and/or to the extent
permitted by law a late charge may also be imposed in an amount not to exceed
five percent (5%) of the unpaid portion of any payment in default for more than
fifteen (15) days. The Default Rate shall also apply from acceleration until
the Obligations or any judgment thereon is paid in full.
INTEREST COMPUTATION. (Actual/360). Interest shall be computed on the basis
of a 360-day year for the actual number of days in the interest
<PAGE> 32
period ("Actual/360 Computation"). The Actual/360 Computation determines the
annual effective interest yield by taking the stated (nominal) interest rate
for a year's period and then dividing said rate by 360 to determine the daily
periodic rate to be applied for each day in the interest period. Application
of the Actual/360 Computation produces an annualized effective interest rate
exceeding that of the nominal rate.
REPAYMENT TERMS. This Note shall be due and payable in consecutive monthly
payments of accrued interest only commencing on January 15, 1997, and on the
same day of each month thereafter through April 30, 1998. All outstanding
principal and accrued but unpaid interest shall be due and payable in full on
April 30, 1998.
APPLICATION OF PAYMENTS. Monies received by Bank from any source for
application toward payment of the Obligations shall be applied to accrued
interest and then to principal. If a Default occurs, monies may be applied to
the Obligations in any manner or order deemed appropriate by Bank.
If any payment received by Bank under this Note or other Loan Documents is
rescinded, avoided or for any reason returned by Bank because of any adverse
claim or threatened action, the returned payment shall remain payable as an
obligation of all persons liable under this Note or other Loan Documents as
though such payment had not been made.
LOAN DOCUMENTS AND OBLIGATIONS. The term "Loan Documents" used in this Note
and other Loan Documents refers to all documents executed in connection with
the loan evidenced by this Note and may include, without limitation, a loan
agreement, this Note, security agreements, security instruments, financing
statements, mortgage instruments, letters of credit and any renewals or
modifications, but however, does not include swap agreements as defined in 11
U.S.C. Section 101 whenever executed.
The term "Obligations" used in this Note refers to any and all indebtedness and
other obligations under this Note, all other obligations as defined in the
respective Loan Documents, and all obligations under any swap agreements as
defined in 11 U.S.C. Section 101 between Borrower and Bank whenever executed.
LATE CHARGE. If any payments are not timely made, Borrower shall pay, in
addition to the Default Rate of Interest to Bank a late charge equal to 5% of
each payment past due for 15 or more days.
Acceptance by Bank of any late payment without an accompanying late charge
shall not be deemed a waiver of Bank's right to collect such late charge or to
collect a late charge for any subsequent late payment received.
If this Note is secured by owner-occupied residential real property located
outside the state in which the office of Bank first shown above is located, the
late charge laws of the state where the real property is located shall apply to
this Note, or if permitted under the law of that state, 5% of each payment past
due for 15 or more days.
ATTORNEYS' FEES AND OTHER COLLECTION COSTS. Borrower shall pay all of Bank's
reasonable expenses incurred to enforce or collect any of the
<PAGE> 33
Obligations, in accordance with the terms of the Loan Agreement, including,
without limitation, reasonable arbitration, paralegals', attorneys' and
experts' fees and expenses, whether incurred without the commencement of a
suit, in any trial, arbitration, or administrative proceeding, or in any
appellate or bankruptcy proceeding.
USURY. Regardless of any other provision of this Note or other Loan Documents,
if for any reason the effective interest should exceed the maximum lawful
interest, the effective interest shall be deemed reduced to, and shall be, such
maximum lawful interest, and (i) the amount which would be excessive interest
shall be deemed applied to the reduction of the principal balance of this Note
and not to the payment of interest, and (ii) if the loan evidenced by this Note
has been or is thereby paid in full, the excess shall be returned to the party
paying same, such application to the principal balance of this Note or the
refunding of excess to be a complete settlement and acquittance thereof.
BORROWER'S ACCOUNTS. Except as prohibited by law, Borrower grants Bank a
security interest in all of Borrower's accounts with Bank and any of its
affiliates.
DEFAULT; REMEDIES UPON DEFAULT. Any Event of Default as described in the Loan
Agreement shall be a default ("Default") under this Note. If a Default occurs,
Bank may take any action and shall have any remedy available as provided in
the Loan Agreement or otherwise available at law or in equity.
OF CREDIT ADVANCES. Borrower may borrow, repay and reborrow, and Bank may
advance and readvance under this Note respectively from time to time, so long
as the total indebtedness outstanding at any one time does not exceed the
lesser of the principal amount stated on the face of this Note, or one hundred
percent (100%) of the aggregate amount of all amounts disbursed by Borrower
under all Mortgage Notes (as defined in the Loan Agreement) accepted by Lender
as Collateral herefor. Bank's obligation to advance or readvance under this
Note shall terminate if Borrower is in Default.
WAIVERS AND AMENDMENTS. No waivers, amendments or modifications of this Note
and other Loan Documents shall be valid unless in writing and signed by an
officer of Bank. No waiver by Bank of any Default shall operate as a waiver of
any other Default or the same Default on a future occasion. Neither the
failure nor any delay on the part of Bank in exercising any right, power, or
remedy under this Note and other Loan Documents shall operate as a waiver
thereof, nor shall a single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
Each Borrower or any person liable under this Note waives presentment, protest,
notice of dishonor, demand for payment, notice of sale and all other notices of
any kind. Further, each agrees that Bank may extend, modify or renew this Note
or make a novation of the loan evidenced by this Note for any period and grant
any releases, compromises or indulgences with respect to any collateral
securing this Note, or with respect to any Borrower or any person liable under
this Note or other Loan Documents, all without notice to or consent of any
Borrower or any person who may be liable under this Note or other Loan
Documents and without affecting the liability of Borrower or any person who may
be liable under this Note or other Loan Documents.
<PAGE> 34
MISCELLANEOUS PROVISIONS. Assignment. This Note and other Loan Documents
shall inure to the benefit of and be binding upon the parties and their
respective heirs, legal representatives, successors and assigns. Bank's
interests in and rights under this Note and other Loan Documents are freely
assignable, in whole or in part, by Bank upon prior notice to Borrower.
Borrower shall not assign its rights and interest hereunder without the prior
written consent of Bank, and any attempt by Borrower to assign without Bank's
prior written consent is null and void. Any assignment shall not release
Borrower from the Obligations. Applicable Law; Conflict Between Documents.
This Note and other Loan Documents shall be governed by and construed under the
laws of the state where Bank first shown above is located without regard to
that state's conflict of laws principles. If the terms of this Note should
conflict with the terms of the loan agreement or any commitment letter that
survives closing, the terms of this Note shall control. Jurisdiction. Borrower
irrevocably agrees to non-exclusive personal jurisdiction in the state in which
the office of Bank first shown above is located. Severability. If any
provision of this Note or of the other Loan Documents shall be prohibited or
invalid under applicable law, such provision shall be ineffective but only to
the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Note or other
such document. Notices. Any notices to Borrower shall be sufficiently given,
if in writing and mailed or delivered to the Borrower's address shown above or
such other address as provided hereunder, and to Bank, if in writing and mailed
or delivered to Bank's office address shown above or such other address as Bank
may specify in writing from time to time. In the event that Borrower changes
Borrower's address at any time prior to the date the Obligations are paid in
full, Borrower agrees to promptly give Bank written notice of said change of
address by registered or certified mail, return receipt requested, all charges
prepaid. Plural; Captions. All references in the Loan Documents to Borrower,
guarantor, person, document or other nouns of reference mean both the singular
and plural form, as the case may be, and the term "person" shall mean any
individual, person or entity. The captions contained in the Loan Documents are
inserted for convenience only and shall not affect the meaning or
interpretation of the Loan Documents. Binding Contract. Borrower by execution
of and Bank by acceptance of this Note agree that each party is bound to all
terms and provisions of this Note. Advances. Bank in its sole discretion may
make other advances and readvances under this Note pursuant hereto. Posting of
Payments. All payments received during normal banking hours after 2:00 p.m.
local time at the office of Bank first shown above shall be deemed received at
the opening of the next banking day. Joint and Several Obligations. Each
Borrower is jointly and severally obligated under this Note. Fees and Taxes.
Borrower shall promptly pay all documentary, intangible recordation and/or
similar taxes on this transaction whether assessed at closing or arising from
time to time.
ARBITRATION. Upon demand of any party hereto, whether made before or after
institution of any judicial proceeding, any dispute, claim or controversy
arising out of, connected with or relating to this Note and other Loan
Documents ("Disputes") between or among parties to this Note shall be resolved
by binding arbitration as provided in the Loan Agreement.
PRESERVATION AND LIMITATION OF REMEDIES. Notwithstanding the preceding binding
arbitration provisions, Bank and Borrower agree to preserve, without
diminution, certain remedies that any party hereto may employ or
<PAGE> 35
exercise freely, independently or in connection with an arbitration proceeding
or after an arbitration action is brought. Bank and Borrower shall have the
right to proceed in any court of proper jurisdiction or by self-help to
exercise or prosecute the following remedies, as applicable: (i) all rights to
foreclose against any real or personal property or other security by exercising
a power of sale granted under Loan Documents or under applicable law or by
judicial foreclosure and sale, including a proceeding to confirm the sale; (ii)
all rights of self-help including peaceful occupation of real property and
collection of rents, set-off, and peaceful possession of personal property;
(iii) obtaining provisional or ancillary remedies including injunctive relief,
sequestration, garnishment, attachment, appointment of receiver and filing an
involuntary bankruptcy proceeding; and (iv) when applicable, a judgment by
confession of judgment. Preservation of these remedies does not limit the power
of an arbitrator to grant similar remedies that may be requested by a party in
a Dispute.
Borrower and Bank agree that they shall not have a remedy of punitive or
exemplary damages against the other in any Dispute and hereby waive any right
or claim to punitive or exemplary damages they have now or which may arise in
the future in connection with any Dispute whether the Dispute is resolved by
arbitration or judicially.
IN WITNESS WHEREOF, Borrower, on the day and year first above written, has
caused this Note to be executed under seal.
CambridgeBanc, Inc.
Taxpayer Identification Number: 57-1030216
CORPORATE By: /s/ Matthew J. Marron, Jr.,
SEAL Matthew J. Marron, Jr., President
<PAGE> 36
SECURITY AGREEMENT
December 12, 1996
CambridgeBanc, Inc.
Post Office Box 17918
Greenville, South Carolina 29606
(Hereinafter referred to as the "Debtor")
First Union National Bank of South Carolina
1 Beattie Place
Greenville, South Carolina 29602
(Hereinafter referred to as the "Bank")
For value received and to secure payment and performance of the Promissory Note
executed by the Debtor dated even date herewith, in the original principal
amount of $500,000.00, payable to Bank, and any extensions, renewals,
modifications or notations thereof (the "Note"), this Security Agreement and
the other Loan Documents, and any other obligations of Debtor to Bank however
created, arising or evidenced, whether direct or indirect, absolute or
contingent, now existing or hereafter arising or acquired, including swap
agreements (as defined in 11 U. S. C. Section 101), future advances, and all
costs and expenses incurred by Bank to obtain, preserve, perfect and enforce
the security interest granted herein and to maintain, preserve and collect the
property subject to the security interest (collectively, "Obligations"), Debtor
hereby grants to Bank a continuing security interest in and lien upon the
following described property, now owned or hereafter acquired, any additions,
accessions, or substitutions thereof and thereto, and all proceeds and products
thereof, including cash or non-cash dividends (collectively, "Collateral"):
All Mortgage Notes (as defined in the Loan Agreement dated of even date
herewith by and among Debtor, RSI Holdings, Inc., and the Bank ("Loan
Agreement")), and all other documents and instruments executed in connection
with the closing of a Mortgage Loan including, without limitation, all
Mortgages (each as defined in the Loan Agreement); whether now existing or
hereafter acquired, wherever located; and all products and proceeds of any of
the foregoing, including without limitation all insurance proceeds relating
thereto.
Debtor hereby represents and agrees that:
OWNERSHIP. Debtor owns the Collateral or will acquire rights in the Collateral
with respect to which an Advance is made within ten days of the date advances
are made under the Note. The Collateral is free and clear of all liens,
security interests, and claims except those previously reported in writing to
Bank, and Debtor will keep the Collateral free and clear from all liens,
security interests and claims, other than those granted to Bank and other than
Permitted Liens (as defined in the Loan Agreement.
NAME AND OFFICES. There has been no change in the name of Debtor, or the name
under which Debtor conducts business, within the 2 years preceding the date of
execution of this Security Agreement (Debtor having been incorporated on
September 29, 1995) and Debtor has not moved its executive offices or residence
within the 2 years preceding the date of execution of this Security Agreement
except as previously reported in writing to Bank. The taxpayer identification
number of Debtor as provided herein is correct.
<PAGE> 37
TITLE/TAXES. Debtor has good and marketable title to Collateral and will
warrant and defend same against all claims. Debtor will not transfer or sell
Collateral except to Purchasers pursuant to a written Purchase Commitment (as
defined in the Loan Agreement. Debtor agrees to pay promptly all taxes and
assessments upon or for the use of Collateral and on this Security Agreement.
At its option, Bank may discharge taxes, liens, security interests or other
encumbrances at any time levied or placed on Collateral. Debtor agrees to
reimburse Bank, on demand, for any such payment made by Bank. Any amounts so
paid shall be added to the Obligations.
WAIVERS. Debtor waives presentment, demand, protest, notice of dishonor,
notice of default, and demand for payment. Debtor further agrees not to assert
against Bank as a defense (legal or equitable), as a set-off, as a
counterclaim, or otherwise, any claims Debtor may have against any seller or
lessor that provided personal property or services relating to any part of the
Collateral. Debtor waives all exemptions and homestead rights with regard to
the Collateral. Debtor waives any and all rights to notice or to hearing prior
to Bank's taking immediate possession or control of any Collateral, and to any
bond or security which might be required by applicable law prior to the
exercise of any of Bank's remedies against any Collateral.
EXTENSIONS, RELEASES. Debtor agrees that Bank may extend, renew or modify any
of the Obligations and grant any releases, compromises or indulgences with
respect to any security for the Obligations, or with respect to any party
liable for the Obligations, all without notice to or consent of Debtor and
without affecting the liability of Debtor or the enforceability of this Security
Agreement.
NOTIFICATIONS OF CHANGE. Debtor will notify Bank in writing at least 30 days
prior to any change in: (i) Debtor's chief place of business and/or residence;
(ii) Debtor's name or identity; or (iii) Debtor's corporate structure. Debtor
will keep Collateral at the location(s) previously provided to Bank until such
time as Bank provides written advance consent to a change of location. Debtor
will bear the cost of preparing and filing any documents necessary to protect
Bank's liens.
COLLATERAL CONDITION AND LAWFUL USE. Debtor represents that Collateral is in
good repair and condition and that Debtor shall use reasonable care to prevent
Collateral from being damaged or depreciating. Debtor shall immediately notify
Bank of any material loss or damage to Collateral. Debtor represents it is in
compliance in all material respects with all federal, state and local laws,
rules and regulations applicable to its properties, Collateral, operations,
business, and finances, including, without limitation, any federal or state
laws relating to liquor (including 18 U. S. C. Section 3617, et seq.) or
narcotics (including 21 U. S. C. Section 801, et seq.) and all applicable
federal, state and local laws, and regulations intended to protect the
environment.
RISK OF LOSS. Debtor shall bear all risk of loss with respect to the
Collateral.
ADDITIONAL COLLATERAL. If at any time Collateral is unsatisfactory to Bank,
then on demand of Bank, Debtor shall immediately furnish such additional
Collateral satisfactory to Bank to be held by Bank as if originally pledged
hereunder and shall execute such additional security agreements and financing
statements as requested by Bank.
<PAGE> 38
FINANCING STATEMENTS. No Financing Statement (other than any filed by Bank or
disclosed above) covering any of Collateral or proceeds thereof is on file in
any public filing office. This Security Agreement, or a copy thereof, or any
Financing Statement executed hereunder may be recorded. On request of Bank,
Debtor will execute one or more Financing Statements in form satisfactory to
Bank and will pay all costs and expenses of filing the same or of filing this
Security Agreement in all public filing offices, where filing is deemed by Bank
to be desirable and so requested of Debtor. Bank is authorized to file
Financing Statements and to execute continuation Financing Statements or
amendments to Financing Statements relating to Collateral without Debtor's
signature where authorized by law provided that Bank promptly sends a copy of
same to Debtor. Debtor appoints Bank as its attorney-in-fact to execute such
documents necessary to accomplish perfection of Bank's security interest. The
appointment is coupled with an interest and shall be irrevocable as long as any
Obligations remain outstanding. Debtor further agrees to take such other
actions as required by applicable law for the perfection, continuation and
assignment, in whole or in part, of the security interests granted herein. If
certificates are issued or outstanding as to any of the Collateral, Debtor will
cause the security interests of Bank to be properly protected, including
perfection of notation thereon.
INSTRUMENTS. Any Collateral that is instruments and negotiable documents will
be properly assigned to, deposited with and held by Bank, or a bailee of Bank
pursuant to a written Bailee Agreement (as defined in the Loan Agreement),
unless Bank shall hereafter otherwise direct or consent in writing. Upon the
occurrence of any Default prior to sale of any Collateral to a Purchaser, Bank
may, without notice, before or after maturity of the Obligations, exercise any
or all rights of collection, conversion, or exchange with regard to such
Collateral, and other similar rights, privileges and options pertaining to the
Collateral, but shall have no duty to do so.
COLLATERAL DUTIES. Bank shall have no custodial or ministerial duties to
perform with respect to Collateral pledged except as set forth herein, in the
Loan Agreement, or in any applicable Bailee Agreement; and by way or
explanation and not by way of limitation, Bank shall incur no liability for any
of the following: (i) loss or depreciation of the Collateral (unless caused by
its willful misconduct), (ii) its failure to present any paper for payment or
protest, to protest or give notice of nonpayment, or any other notice with
respect to any paper or Collateral, or (iii) its failure to present or
surrender for redemption, conversion or exchange any bond, stock, paper or
other security whether in connection with any merger, consolidation,
recapitalization, or reorganization, arising out of the refunding of the
original security, or for any other reason, or its failure to notify any party
hereto that the Collateral should be so presented or surrendered.
TRANSFER OF COLLATERAL. The Bank may assign its rights in the Collateral or
any part thereof, to an assignee, as well as any subsequent holder hereof, who
shall thereupon become vested with all the powers and rights herein given to
the Bank with respect to the property so transferred and delivered, and the
Bank shall thereafter be forever relieved and fully discharged from any
liability with respect to such property so transferred, but with respect to any
property not so transferred the Bank shall retain all rights and powers hereby
given.
SUBSTITUTE COLLATERAL. With prior written consent of Bank, other
<PAGE> 39
Collateral may be substituted for the original Collateral herein in which event
all rights, duties, obligations, remedies and security interests provided for,
created or granted shall apply fully to such substitute Collateral.
INSPECTION, BOOKS AND RECORDS. Debtor will at all times keep accurate and
complete records covering each item of Collateral, including the proceeds
therefrom. Bank, or any of its agents, shall have the right, at intervals to
be determined by Bank and without hindrance or delay, to inspect, audit, and
examine the Collateral and to make extracts from the books, records, journals,
orders, receipts, correspondence and other data relating to the Collateral,
Debtor's business or any other transaction between the parties hereto. Debtor
will at its expense furnish Bank copies thereof upon request. Bank agrees to
exercise any such rights in a manner so as not to unduly interfere with the
operation of Debtor's business.
CROSS COLLATERALIZATION LIMITATION. As to any other existing or future
consumer purpose loan by Bank to Debtor, within the meaning of the Federal
Consumer Credit Protection Act, Bank expressly waives any security interest
granted herein in Collateral that Debtor uses as a principal dwelling and
household goods.
ATTORNEYS' FEES AND OTHER COSTS OF COLLECTION. Debtor shall pay all of Bank's
reasonable expenses incurred in enforcing this Agreement and in preserving and
liquidating the Collateral, including but not limited to, reasonable
arbitration, paralegals', attorneys' and experts' fees and expenses, whether
incurred without the commencement of a suit, in any trial, arbitration, or
administrative proceeding, or in any appellate or bankruptcy proceeding.
DEFAULT. If any of the following occurs, a default ("Default") under this
Security Agreement shall exist: (i) Any breach of any representation or
agreement contained or referred to in this Security Agreement; the loss, theft,
substantial damage, or destruction of the Collateral not fully covered by
insurance, or as to which insurance proceeds are not remitted to Bank within 30
days of the loss; any sale or encumbrance of any of the Collateral (except for
Permitted Liens) without prior written consent of Bank; or the making of any
levy, seizure, or attachment on or of the Collateral which is not removed with
10 days; or (ii) any Event of Default occurs as defined in the Loan Agreement
which is not cured within the applicable cure period, if any.
REMEDIES ON DEFAULT. If a Default occurs, Bank shall have all the rights and
remedies of a secured party as set forth in the Loan Agreement and under the
South Carolina Uniform Commercial Code or those otherwise existing at law or in
equity.
REMEDIES ARE CUMULATIVE. No failure on the part of Bank to exercise, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise by Bank or any right,
power or remedy hereunder preclude any other or further exercise thereof or the
exercise of any right, power or remedy. The remedies herein provided are
cumulative and are not exclusive of any remedies provided by law, in equity, or
in other Loan Documents.
MISCELLANEOUS. (i) Amendments and Waivers. No waivers, amendments or
modifications of any provision of this Security Agreement shall be valid unless
in writing and signed by an officer of Bank. No waiver by Bank
<PAGE> 40
of any Default shall operate as a waiver of any other Default or of the same
Default on a future occasion. Neither the failure of, nor any delay by, Bank
in exercising any right, power or privilege granted pursuant to this Security
Agreement shall operate as a waiver thereof, nor shall a single or partial
exercise thereof preclude any other or further exercise of any other right,
power or privilege. (ii) Assignment. All rights of Bank hereunder are freely
assignable, in whole or in part, and shall inure to the benefit of and be
enforceable by Bank, its successors, assigns and affiliates. Debtor shall not
assign its rights and interest hereunder without the prior written consent of
Bank, and any attempt by Debtor to assign without Bank's prior written consent
is null and void. Any assignment shall not release Debtor from the Obligations.
This Security Agreement shall be binding upon Debtor, and the successors and
assigns of Debtor. (iii) Applicable Law; Conflict Between Documents. This
Security Agreement shall be governed by and construed under the law of the
state in which the office of Bank as stated above is located without regard to
that state's conflict of laws principles. If any terms of this Security
Agreement conflict with the terms of any commitment letter or loan proposal,
the terms of this Security Agreement shall control. (iv) Jurisdiction. Debtor
irrevocably agrees to non-exclusive personal jurisdiction in the state in which
the office of Bank as stated above is located. (v) Severability. If any
provision of this Security Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective but only to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Security Agreement. (vi)
Notices. Any notices to Debtor shall be sufficiently given, if in writing and
mailed or delivered to the address of Debtor shown above or such other address
as provided hereunder; and to Bank, if in writing and mailed or delivered to
Bank's office address shown above or such other address as Bank may specify in
writing from time to time. In the event that the Debtor changes Debtor's
address at any time prior to the date this Note is paid in full, Debtor agrees
to promptly give written notice of said change of address by registered or
certified mail, return receipt requested, all charges prepaid. (vii) Captions.
The captions contained herein are inserted for convenience only and shall not
affect the meaning or interpretation of this Security Agreement or any
provision hereof. The use of the plural shall also mean the singular, and vice
versa. (viii) Loan Documents. The term "Loan Documents" refers to all
documents executed in connection with the Obligations and may include, without
limitation, commitment letters, loan agreements, guaranty agreements, other
security agreements, letters of credit, instruments, financing statements,
mortgages, deeds of trust, deeds to secure debt, and any amendments or
supplements (excluding swap agreements as defined in 11 U. S. C. Section 101).
(ix) Joint and Several Liability. If more than one person has signed this
Security Agreement, such parties are jointly and severally obligated hereunder.
(x) Binding Contract. Debtor by execution and Bank by acceptance of this
Security Agreement, agree that each party is bound by all terms and provisions
of this Security Agreement.
IN WITNESS WHEREOF, Debtor, on the day and year first written above, has caused
this Agreement to be executed under seal.
CambridgeBanc, Inc.
Taxpayer Identification Number: 57-1030216
<PAGE> 41
CORPORATE By: /s/Matthew J. Marron, Jr.
SEAL Matthew J. Marron, Jr., President
12485-33
<PAGE> 42
BAILEE AGREEMENT
THIS BAILEE AGREEMENT is entered into by and among First Union
National Bank of South Carolina, ("Lender"), CambridgeBanc, Inc. ("Seller"),
and _______________________________, ("Buyer").
WHEREAS, Seller may, from time to time, originate and close
residential mortgage loans (each, a "Mortgage Loan"); and
WHEREAS, each Mortgage Loan will be evidenced by a promissory note
(each, a "Mortgage Note") and secured by a mortgage or certain other documents
(collectively, together with each Mortgage Note, the "Collateral"); and
WHEREAS, Seller may obtain monies from Lender to fund such Mortgage
Loans, and will grant Lender a security interest in the Collateral securing
such Mortgage Loans; and
WHEREAS, Seller intends to sell certain closed Mortgage Loans to Buyer
pursuant to the FHA Title I Loan Master Purchase and Sale Agreement dated as of
___________________________________ between Seller and Buyer (the "Contract"),
and one or more Confirmation Letters between Seller and Buyer (each, a
"Confirmation Letter") entered into pursuant to the applicable Contract as
identified in each Confirmation Letter (the Contract and any and all
Confirmation Letters are hereafter collectively referred to as the
"Instruments"); and
WHEREAS, Lender has requested that Buyer act as Lender's bailee with
respect to such Collateral until the related Mortgage Loan is purchased by
Buyer.
NOW, THEREFORE, in consideration of the agreements set forth herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Lender, Seller, and Buyer agree as follows:
Section 1. Notification and Acknowledgment of Security Interest.
Seller shall attach to each shipment to Buyer of one or more Mortgage Notes a
cover letter, substantially in the form of Exhibit A attached hereto, that:
(a) references this Bailee Agreement; and (b) acknowledges that each related
Mortgage Loan is subject to Lender's security interest. Seller, shall promptly
forward such cover letter and Mortgage Note(s) and other Collateral related
thereto to Buyer at the following address (or such other address as may be sent
in writing by Buyer to Seller and Lender):
Attn:
Immediately upon receipt, and not later than forty-eight (48) hours following
receipt, Buyer shall sign and date such cover letter and shall mail and telefax
it to Lender at the following address or number (or such other address or
number as may be sent in writing by Lender to Buyer and Seller):
<PAGE> 43
Lender: First Union National Bank of South Carolina
1 Beattie Place
Greenville, South Carolina 29602
Attention: Melinda J. Siefert, Assistant Vice President
Telefax: (864) 255-8261
Telephone: (864) 255-8268
The Mortgage Loan file shall not be deemed complete until the receipt by Buyer
of the original executed Mortgage Note endorsed in blank or to Buyer, together
with the other documents listed in the Instrument. Such cover letter, when
executed by Buyer, shall constitute acknowledgment by Buyer of Lender's
security interest in the related Collateral, provided, however, that the
failure of Buyer to acknowledge such cover letter shall not impair or affect
the enforceability of this Bailee Agreement or of Lender's lien on the related
Collateral evidenced hereby.
Section 2. Buyer as Bailee. Effective upon Buyer's receipt of the
Collateral and the cover letter described in Section 1 above, Buyer will hold
the Collateral, in which Lender holds a security interest, as bailee for the
benefit of Lender, pursuant to the provisions of the Uniform Commercial Code,
as adopted in the State of South Carolina, until Buyer's status as bailee is
terminated as set forth in Section 3 hereof. Prior to such termination, Buyer
shall not deliver the Collateral to Seller or any third party. Buyer shall act
only as a bailee for Lender and shall not be deemed to be a representative,
trustee, or fiduciary or otherwise an agent of or for Lender or Seller with
respect to the Collateral. The standard of care to be exercised by Buyer in
holding the Collateral shall be the same degree of care and skill as Buyer
exercises when it holds Mortgage Loan documents on its own behalf.
Section 3. Termination of Security Interest and Release of Bailee.
Buyer's status and obligations as bailee shall automatically terminate, without
further action by any party, upon the earliest to occur of: (i) payment of the
Purchase Price to Seller, as set forth in Section 4 hereof (the "Purchase
Date"); or (ii) return of the Collateral to Lender, as set forth in Section 5
hereof. Lender agrees that its security interest in the Collateral and that
all right, title, and interest it may have in each related Mortgage Loan
purchased by Buyer are and shall be fully released effective as of the Purchase
Date, whereupon Buyer will have no further obligations to Lender with respect
to such Collateral.
Section 4. Purchase Price. The "Purchase Price" means the price
Buyer agrees to pay to purchase a Mortgage Loan pursuant to the Instruments.
Upon Lender's request, Seller agrees promptly to provide Lender with copies of
the Instruments. Lender and Seller acknowledge that the Purchase Price may be
less than the full principal amount of the Mortgage Note evidencing the
Mortgage Loan, and that Seller may have paid or advanced other funds to Buyer
in connection with the Instruments, which funds are not included in the
Purchase Price. Buyer agrees that the Purchase Price paid to Seller with
respect to a particular Mortgage Loan shall not be reduced due to adjustments
relating to another Mortgage Loan. For purposes of the Purchase Date set forth
in Section 3 hereof, the Purchase Price shall be deemed paid in full when
either: (a) Seller collects funds in the amount of the Purchase Price pursuant
to a cashiers check mailed to Seller's address set forth in Section 7 below
from Buyer and deposits such check in its account with Lender referenced
hereinbelow (or any other account designated by Lender); (b) Seller receives a
federal wire transfer in
<PAGE> 44
the amount of the Purchase Price into its account with Lender referenced
hereinbelow (or any other account designated by Lender) from Buyer:
Bank: First Union National Bank of South Carolina
Address: 1 Beattie Place, Greenville, SC 29602
ABA Number: 053207766
Account: 2010000314483 (note, this account # may
change as of January 1997 contact First Union
for confirmation of account #)
Attention: Melinda J. Siefert, Assistant Vice
President
or (c) Seller collects funds in such other manner as requested by Lender and
such funds are deposited in the account with Lender referenced hereinabove (or
any other account designated by Lender). Seller agrees promptly to process and
submit any such cashiers check received from Buyer for payment to Lender.
Buyer shall not be liable to Lender or Seller for any additional expenses
incurred by Lender or Seller because of: (i) payments lost or delayed due to
incorrect wire transfer or mailing instructions provided by Seller; (ii)
Seller's failure promptly to process a cashiers check; or (iii) Lender's
failure to promptly submit a cashiers check for payment. Buyer shall notify
Seller of the purchase of a Mortgage Loan by sending a funding advice to
Seller, and, upon Lender's request, Seller shall promptly telecopy such funding
advice to Lender.
Section 5. Return of Collateral to Lender. Buyer will deliver the
Note and other Collateral in Buyer's possession to Lender: (a) upon receipt by
Buyer of Lender's written request therefor (provided that such request is
received by Buyer prior to Buyer's payment of the Purchase Price to Seller); or
(b) promptly, in the event that Buyer elects not to purchase the Mortgage Loan,
or in the event that the Mortgage Note or other Collateral is defective and
requires correction. In the alternative, Buyer shall take such other action
with respect to the Note and other Collateral as may be agreed upon in writing
between Lender and Buyer with notice to Seller. Any delivery from Buyer to
Lender shall be made by express mail to the address of Lender set forth in
Section 1 hereof. In no event shall Buyer return any item of Collateral to
Seller prior to the termination of Lender's security interest in the Collateral.
Section 6. Representation and Warranties.
(a) As of the date of delivery of each Mortgage Loan to Buyer:
(i) Lender represents and warrants to Buyer that (A) Lender has not
assigned, hypothecated, transferred, pledged, or otherwise conveyed
the Collateral to any other party, or recorded any assignment of
mortgage or deed of trust relating to such Mortgage Loan, and (B)
during the period that Buyer holds the Collateral as bailee, unless
and until the Collateral is returned by Buyer to Lender, Lender will
not assign, hypothecate, transfer, pledge, or otherwise convey any of
Lender's right, title, or interest in such Collateral; nor will Lender
need or cause to be needed any assignment of mortgage or deed of trust
relating to such Mortgage Loan;
(ii) Seller certifies to Buyer that the documents relating to each Mortgage
Loan purchased have been delivered to Buyer by Seller or Seller's
closing agent (except for any loan and security agreement
<PAGE> 45
between Lender and Seller, and any unrecorded assignment of a mortgage
or deed of trust); and
(iii) Lender's execution and delivery of this Bailee Agreement have been
specifically approved by Lender. This Bailee Agreement constitutes
the "written agreement" governing Lender's rights and obligations with
respect to Buyer in connection with Lender's role as Seller's
warehouse lender for the Mortgage Loans, and Lender shall continuously
maintain all components of such "written agreement" as an official
record of Lender or any successor thereof that Lender owns or controls.
(b) Immediately following payment of the Purchase Price for a particular
Mortgage Loan as described in Section 4 hereinabove, Lender represents
and warrants that (i) Lender has fully relinquished all right, title,
and interest it may have in and to such Mortgage Loan; (ii) all notes,
mortgages, and other original documents, instruments, and materials
that have been delivered to Buyer pursuant to subsection 6(a)(ii)
above have been released to Buyer; and (iii) any unrecorded
assignments in Lender's possession relating to such Mortgage Loan are
null and void, and Lender covenants to and agrees with Buyer that
Lender immediately will take any and all action necessary to assign
and transfer any recorded interest in such Mortgage Loan to Buyer.
Section 7. Notices. Any notices sent to Buyer or Lender pursuant to this
Agreement shall be sent to the address applicable in accordance with Section 1
of this Agreement, and any notices sent to Seller pursuant to this Agreement
shall be sent to Seller at the following address (or such other address as may
be sent in writing by Seller to Buyer and Lender):
CambridgeBanc, Inc.
Post Office Box 17918
Greenville, South Carolina 29606
Attention: Matthew J. Marron, Jr.
Section 8. Counterparts. This Bailee Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Bailee Agreement by
signing any such counterpart.
[See Signature Page Attached]
IN WITNESS WHEREOF, each of the undersigned has caused this Bailee Agreement to
be duly executed and delivered by its duly authorized officer as of December
__, 1996.
LENDER: First Union National Bank of South Carolina
<PAGE> 46
By: /s/ Jack Whitener
Name: Jack Whitener
Title: SVP
SELLER: CambridgeBanc, Inc.
By: /s/ Matthew J. Marron, Jr.
Name: Matthew J. Marron, Jr.
Title: President
BUYER:
By:
Name:
Title:
<PAGE> 47
Exhibit A to Bailee Agreement
Omitted
<PAGE> 48
AGREEMENT BETWEEN CAMBRIDGEBANC, INC.
AND RSI HOLDINGS, INC.
THIS AGREEMENT is entered into as of this 12th day of December, 1996
by and between CambridgeBanc, Inc., a South Carolina corporation
("CambridgeBanc") and RSI Holdings, Inc., a North Carolina corporation ("RSI").
WHEREAS, CambridgeBanc is a wholly-owned subsidiary of RSI; and
WHEREAS, CambridgeBanc desires to obtain a revolving line of credit
(the "Line of Credit") for up to $500,000 from First Union National Bank of
South Carolina ("Lender") pursuant to the terms of that certain Loan Agreement
dated of even date herewith by and between CambridgeBanc, RSI and Lender (the
"Loan Agreement"); and
WHEREAS, as a condition precedent to extending the Line of Credit,
Lender, pursuant to the terms of the Loan Agreement, has required that each of
CambridgeBanc and RSI enter into this Agreement; and
WHEREAS, each of CambridgeBanc and RSI has determined that it will
benefit directly and indirectly from the Line of Credit and that it is in its
best interests to enter into this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound, hereby agree as follows:
For so long as amounts are outstanding under the Line of Credit, RSI
agrees to make capital contributions to CambridgeBanc so as to cause
CambridgeBanc to maintain a Consolidated Tangible Net Worth (as such term is
defined in the Loan Agreement) of at least $500,000 at all times during the
term of the Line of Credit.
RSI and CambridgeBanc acknowledge and agree that Lender has extended
the Line of Credit in reliance upon the terms of this Agreement and that, as a
third party beneficiary of this Agreement, Lender (and its assignees and
successors) shall have the right to enforce its terms. No other person shall
have any rights as a third party beneficiary or otherwise to enforce this
Agreement.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals as of the day and year first above written.
CAMBRIDGEBANC, INC.
/s/ Jo W. Hackl /s/ Matthew J. Marron, Jr.
Witness By:
Its: President
<PAGE> 49
RSI HOLDINGS, INC.
/s/ Jo W. Hackl /s/ Buck A. Mickel
Witness By:
Its: Vice President
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONDENSED CONSOLIDATED BALANCE SHEET AT NOVEMBER 30, 1996 (UNAUDITED) AND
THE CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS FOR THE THREE MONTHS
ENDED NOVEMBER 30, 1996 (UNAUDITED) AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> AUG-31-1997
<PERIOD-START> SEP-01-1996
<PERIOD-END> NOV-30-1996
<CASH> 1,791,000
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 1,856,000
<PP&E> 37,000
<DEPRECIATION> 22,000
<TOTAL-ASSETS> 2,139,000
<CURRENT-LIABILITIES> 132,000
<BONDS> 0
0
0
<COMMON> 79,000
<OTHER-SE> 1,773,000
<TOTAL-LIABILITY-AND-EQUITY> 2,139,000
<SALES> 0
<TOTAL-REVENUES> 0
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 404,000
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 4,000
<INCOME-PRETAX> (408,000)
<INCOME-TAX> 0
<INCOME-CONTINUING> (408,000)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (408,000)
<EPS-PRIMARY> (.05)
<EPS-DILUTED> (.05)
</TABLE>
