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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
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Securities Exchange Act of 1934
For the Quarterly Period Ended May 31, 1998 or
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Transition Report pursuant to Section 13 or 15 (d) of the
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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.)
28 East Court Street, 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 - 7,900,822 shares outstanding as of July 8, 1998
Transitional Small Business Disclosure Format (check one):
Yes No X
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INDEX
RSI HOLDINGS, INC.
PART I. FINANCIAL INFORMATION PAGE
Item 1. Financial Statements (Unaudited)
Condensed consolidated balance sheet -- May 31, 1998 4
Condensed consolidated statement of operations -- Three
and nine months ended May 31, 1998 and 1997 5
Condensed consolidated statement of cash flows -- Nine
months ended May 31, 1998 and 1997 6
Notes to condensed consolidated financial statements --
May 31, 1998 7
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 9
PART II. OTHER INFORMATION 14
Item 1. Legal Proceedings 14
Item 2. Changes in Securities 14
Item 3. Defaults upon Senior Securities 15
Item 4. Submission of Matters to a Vote of Security Holders 15
Item 5. Other Information 15
Item 6. Exhibits and Reports on Form 8-K 15
SIGNATURES 16
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RSI Holdings, Inc.
Condensed Consolidated Balance Sheet (Unaudited)
May 31, 1998
Assets
Current Assets:
Cash $ 249,000
Notes receivable - held for sale 675,000
Accounts receivable 119,000
Prepaid expenses 63,000
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Total current assets 1,106,000
Property and equipment:
Cost 231,000
Less accumulated depreciation 48,000
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183,000
Other assets:
Restricted investment 500,000
Other 13,000
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513,000
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$1,802,000
==========
Liabilities and shareholders' equity
Current liabilities:
Trade accounts payable $ 43,000
Accrued expenses 160,000
Note payable - bank 613,000
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816,000
Deferred compensation 74,000
Shareholders' equity:
Common Stock, $.01 par value-authorized
25,000,000 shares, issued and outstanding
7,900,822 shares at May 31, 1998 79,000
Excess of paid-in capital over par value 3,776,000
Deficit (2,943,000)
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912,000
Contingencies (Note C)
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$1,802,000
==========
See accompanying notes.
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RSI Holdings, Inc.
Condensed Consolidated Statement of Operations (Unaudited)
Three and Nine Months ended May 31, 1998 and 1997
<TABLE>
<CAPTION>
Three Months Nine Months
-------------------------------- --------------------------------
1998 1997 1998 1997
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Revenues:
Origination fees $ 218,000 $ 87,000 $ 476,000 $ 126,000
Gain on sale of loans 35,000 23,000 93,000 33,000
----------- ----------- ----------- -----------
Total revenues 253,000 110,000 569,000 159,000
Expenses:
Selling, general and
administrative 402,000 254,000 1,193,000 665,000
----------- ----------- ----------- -----------
Loss from operations (149,000) (144,000) (624,000) (506,000)
Other income (expense):
Interest income 20,000 21,000 54,000 76,000
Rental income 0 8,000 6,000 22,000
Gain on sale of real estate 1,000 0 76,000 0
Insurance recovery (Note C) 100,000 0 100,000 0
Interest expense (8,000) (5,000) (18,000) (12,000)
Cost to settle lawsuit 0 0 (42,000) (300,000)
----------- ----------- ----------- -----------
Total other income (expense) 113,000 24,000 176,000 (214,000)
----------- ----------- ----------- -----------
Net loss $ (36,000) $ (120,000) $ (448,000) $ (720,000)
=========== =========== =========== ===========
Net loss per share $ (.00) $ (.02) $ (.06) $ (.09)
=========== =========== =========== ===========
Weighted average number
of shares outstanding 7,900,822 7,895,822 7,900,822 7,921,554
=========== =========== =========== ===========
</TABLE>
See accompanying notes.
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RSI Holdings, Inc.
Condensed Consolidated Statement of Cash Flows (Unaudited)
Nine Months ended May 31, 1998 and 1997
<TABLE>
<CAPTION>
1998 1997
----------- -----------
<S> <C> <C>
Cash used in operating activities $(1,253,000) $ (809,000)
Investing activities:
Proceeds from sale of property 327,000 --
Purchase of U. S. Treasury bill -- (502,000)
Acquisition of outstanding stock of
HomeAdd Financial Corporation -- (15,000)
Purchase of equipment (186,000) (18,000)
Purchase of common stock -- (25,000)
Organization expense -- (13,000)
Other 8,000 --
----------- -----------
Net cash provided by (used in) investing activities 149,000 (573,000)
----------- -----------
Financing activities:
Advances under bank line of credit 5,695,000 1,655,000
Payments on bank line of credit (5,101,000) (1,579,000)
----------- -----------
Net cash provided by financing activities 594,000 76,000
----------- -----------
Decrease in cash and cash equivalents (510,000) (1,306,000)
Cash and cash equivalents at beginning of year 759,000 2,256,000
----------- -----------
Cash and cash equivalents at end of period $ 249,000 $ 950,000
=========== ===========
</TABLE>
See accompanying notes.
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RSI Holdings, Inc.
Notes to Condensed Consolidated Financial Statements (Unaudited)
Note A - Basis of Presentation
The accompanying unaudited condensed consolidated financial statements
at May 31, 1998 have been prepared in accordance with generally accepted
accounting principles for interim financial information 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 have been included. Operating results for the
nine months ended May 31, 1998 are not necessarily indicative of the results
that may be expected for the year ending August 31, 1998. 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, 1997.
Note B - Sale of Real Property
On November 19, 1997, the Company sold a parcel of real estate that was
located in Tampa, Florida for $425,000 less selling expenses of approximately
$28,000. The depreciated cost of the property was $248,000. The purchase price
was paid in a combination of cash and a $75,000 promissory note. The note is
secured by a second mortgage and bears interest at 8.5% per annum and is payable
by the purchaser over ten years. The gain on the sale is recognized under the
cost recovery method. The gain to date recognized on the sale of the property of
$76,000 is included in the results of operations for the period ended May 31,
1998.
The principal balance of the note receivable is offset in the
accompanying balance sheet by the gain that will be recognized as income as the
principal amount of the note receivable is collected. Such amounts that have
been deferred are as follows:
Due within one year $ 5,000
Due after one year 68,000
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$73,000
=======
Note C - Contingencies
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. During December 1997, an agreement in principal was
reached among the parties to settle this lawsuit. The proposed settlement
involves the payment by the Company of $42,000 to end claims by all parties to
this litigation. The Company understands that settlement documents have been
circulated to all counsel for review. The settlement amount of $42,000 is
accrued in the accompanying statements as of May 31, 1998.
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
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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, 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.
During fiscal year 1997, the Company paid Triple A Machine Shop, Inc.
("Triple A") $300,000 in settlement of a lawsuit brought by Triple A against a
subsidiary of the Company. During the third quarter of fiscal 1998, the
Company's insurance carrier agreed to pay the Company $100,000 to resolve the
Company's claim for reimbursement of the Triple A settlement expense.
Accordingly, the Company recorded this $100,000 amount during the third quarter
of fiscal 1998. The Company received actual payment of the $100,000 in June
1998.
Note D - Earnings (loss) per common share
In 1997, The Financial Accounting Standards Board issued Statement of
Financial Accounting Standard No. 128, Earnings per Share. Statement No. 128
replaced the previously reported primary and fully diluted earnings per share
with basic and diluted earnings per share. Unlike primary earnings per share,
basic earnings per share excludes any dilutive effects of options, warrants and
convertible securities. Diluted earnings per share is very similar to the
previously reported fully diluted earnings per share. Diluted earnings per share
are not presented as the Company has experienced losses from continuing
operations for all periods presented and the exercise of outstanding options
would be antidilutive. All earnings (loss) per share amounts for all periods
have been presented, and where necessary, restated to conform to the Statement
No. 128 requirements.
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Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
General
Special Cautionary Notice Regarding Forward-Looking Statements.
This Report on Form 10-QSB contains forward-looking statements within
the meaning of Section 27A of the Securities Act and 21E of the Exchange Act.
Forward-looking statements are indicated by such terms as "expects", "plans",
"anticipates", and words to similar effect. Such forward-looking statements are
subject to known and unknown risks, uncertainties and other factors that may
cause the actual results, performance or achievements of the Company to be
materially different from future results, performance or achievements expressed
or implied by such forward-looking statements. Important factors ("Cautionary
Statements") that could cause the actual results, performance or achievements of
the Company to differ materially from the Company's expectations are disclosed
in this Report on Form 10-QSB including, without limitation, those factors
discussed in the paragraph immediately preceding the heading "Liquidity and
Capital Resources" on page 12 and otherwise herein. All written or oral
forward-looking statements attributable to the Company are expressly qualified
in their entirety by the Cautionary Statements. The Company does not undertake
to publicly update or revise its forward-looking statements even if experience
or future changes make it clear that any projected results expressed or implied
herein will not be realized.
Results of Operations
The Company acquired a consumer loan business during fiscal year 1997.
The Company has no other business operations. The following discussion of the
results of operations during the three and nine months ended May 31, 1998 as
compared to the three and nine months ended May 31, 1997 relates to the consumer
loan business.
Revenues were $253,000 and $569,000, respectively, during the three and
nine months ended May 31, 1998 and consisted of loan origination fees and gain
from the sale of the loans made. Revenues were $110,000 and $159,000 during the
three and nine months ended May 31, 1997.
Selling, general and administrative expenses include expenses incurred
by HomeAdd of $312,000 and $879,000, respectively, during the three and nine
months ended May 31, 1998 as compared to $212,000 and $394,000, respectively,
during the three and nine months ended May 31, 1997. The remaining general and
administrative expenses primarily consist of salaries, legal, audit and other
administrative expenses incurred by the Company. The HomeAdd expenses primarily
relate to advertising, salaries, and various administrative expenses of HomeAdd.
During the third quarter of fiscal 1998, the Company and its insurance
company reached an agreement whereby the insurance company would pay $100,000 to
the Company. Accordingly, the Company recorded the recovery of $100,000 during
the third quarter of fiscal 1998. The Company received actual payment of the
$100,000 in June 1998.
The real property located in Tampa, Florida was sold during November
1997 for $425,000 less selling expenses of $28,625. The depreciated cost of the
property was $248,000. The purchase price was paid in a combination of cash and
a $75,000 promissory note. The note is secured by a second mortgage
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on the property. The property is subject to a first mortgage with a bank that is
payable by the purchaser of the property in the amount of approximately
$319,000. Because of the purchaser's relatively small equity in the property,
there can be no assurance that the Company would be able to recover the
principal amount of the note if the purchaser were to default on the note.
Neither can there be any assurance that the Company will receive timely payments
on the note. Gain to the extent of the proceeds represented by the note
receivable is deferred and will be recognized as income as the principal amount
of the note receivable is collected. The remaining gain on sale of the property
of $76,000 is included in the results of operations for the period ended May 31,
1998.
The results of operations for the nine months ended May 31, 1998
include $42,000 accrued as the amount expected to be paid to settle the lawsuit
relating to Holiday Inns, Inc. litigation involving RSI Corporation, the former
parent corporation of the Company, and Sparjax Corporation, RSI Corporation's
now-dissolved subsidiary. Under the terms of an agreement in principle that was
reached during December 1997, the Company will be required to pay $42,000 to end
claims by all parties to this litigation against the Company, RSI Corporation or
Sparjax Corporation. For further discussion of the settlement of the lawsuit,
reference is made to Part II, Item 1, "Legal Proceedings," which is incorporated
herein by reference.
HomeAdd offers high loan-to-value loans ("HLTV Loans") to certain
qualified borrowers that permit the loan proceeds to be used for debt
consolidation and home improvements. Under the terms of these HLTV loans,
HomeAdd will make loans secured by a second or third mortgage in which the total
loans outstanding on that property can be up to 125% of the estimated fair value
of the real property. A qualified borrower is required to be a homeowner with
acceptable levels of income and have an acceptable credit history. Substantially
all of the loan volume during the nine months ended May 31, 1998 consisted of
HLTV Loans. The Company expects that most of the loans made during fiscal 1998
will be HLTV Loans.
HomeAdd also offers Title I home improvement loans ("Title I Loans")
under the Title I program administrated by the Federal Housing Administration
("FHA"). HomeAdd 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 to the FHA
Title I license, HomeAdd has to apply for licenses to operate under the banking
laws of each State in which it intends to operate. Less than 1% of HomeAdd's
loan volume during the nine months ended May 31, 1998 were Title I home
improvement loans. The Company made no Title I home improvement loans during the
third quarter of fiscal year 1998.
HomeAdd is currently authorized to operate under the laws of South
Carolina, North Carolina and Florida. HomeAdd is subject to ongoing monitoring
by state banking authorities and the failure to comply with applicable
regulations could result in the forfeiture of licenses on which the business is
dependent.
The Company sells substantially all of the loans it originates on a
non-recourse basis in the secondary market. The non-recourse basis means that
the Company represents that loans were properly documented and made in
accordance with applicable lending criteria, but that the purchaser of the loans
assumes the full credit risk. The Company's credit guidelines for the Company's
loans currently meet the underwriting criteria of the current loan purchasers.
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During the nine months ended May 31, 1998, the Company made loans aggregating
$6,254,000 of which $42,000 in loans were made under the Title I Loan program
and $6,212,000 in loans were made under the HLTV Loan program. Substantially all
of the loans were sold on a non-recourse basis in the secondary market ($675,000
of these were sold during the fourth quarter of fiscal 1998).
As of May 31, 1998, HomeAdd had fourteen employees located in its
office in Greenville, South Carolina that included sales, underwriting and
administrative personnel. During the third quarter of fiscal 1998, the Company
solicited loans throughout South Carolina and North Carolina and during May 1998
began soliciting in the northern counties of Florida. The Company faces stiff
competition in these markets. The future plans of HomeAdd include plans to
attempt to increase its volume of loans through direct mail solicitations in
certain other Southeast States. HomeAdd will apply for authorization to operate
under the banking laws of those states. Management of the Company has determined
that additional sales personnel should be added if it is to meet its growth
objectives and three additions sales trainees were hired during June of 1998.
The Company expects to increase its direct mail solicitations during the fourth
quarter in order to attempt to increase its loan origination volume and to
offset the reduction in response rate that is expected during the summer
vacation season. There is no assurance, however, that its direct mail
advertising will solicit sufficient responses in order for its operating goals
to be accomplished.
The consumer finance market is highly competitive and fragmented.
HomeAdd competes with a number of finance companies that provide financing to
individuals who may not have sufficient equity in their homes to qualify for
traditional second mortgage financing. HomeAdd also competes with established
home improvement lenders, other Title I lenders (many of whom are now making
HLTV Loans), existing mortgage brokers and bankers that offer multi-purpose
second mortgages. To a lesser extent, HomeAdd 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 and require greater equity in the underlying real property
assets. Almost all of these competitors or potential competitors are
substantially larger and have significantly greater capital, experience and
other resources than the Company.
The Company expects that during the next twelve months the increase in
its business, if any, will be in HLTV Loans. Title I home improvement loans are
not expected to be a material factor in its business during the next twelve
months.
Debt consolidation and home equity loan volume generally are not
materially impacted by seasonal climate changes and, with the exclusion of
slowdowns during the holiday and vacation seasons, tends to be relatively stable
throughout the year.
HomeAdd attempts to sell, on a non-recourse basis, all of its loans on
the secondary market to wholesale buyers. HomeAdd 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 continue to be available to HomeAdd.
Adverse changes in the secondary market could materially impair HomeAdd'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 greater losses for
such quarter. If HomeAdd is unable to sell its loans on the secondary market,
its ability to grow could be materially impaired and its
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results of operations and financial condition could be materially and adversely
affected. See Liquidity and Capital Resources - Capital Requirements for
HomeAdd.
The Company expects that HomeAdd will continue to operate at a loss
during, at a minimum, fiscal year 1998, but based on its business plan,
currently expects HomeAdd to operate at a modest profit by fiscal 1999.
Management expects that the Company as a whole will operate at a loss during
fiscal 1999. The foregoing are forward-looking statements and the Company
cautions that there can be no assurance that the goal of profitability can be
achieved. An important factor which could cause the Company's results to differ
materially from these current estimates include lower origination volume due to
real estate market conditions that might affect the appraised values of the real
property that would be used as collateral for the loans that HomeAdd plans to
originate. HomeAdd's business might be reduced if values of the collateral
increase and HomeAdd's customers thereby qualify for more traditional sources of
credit such as banks. Rising property values also might lead to an increase in
prepayments which would reduce the profitability in the secondary market for
HomeAdd's loans and might have a negative impact on the ability of HomeAdd to
sell its loans. Another important factor is the adverse consequences of changes
in the interest rate environment such as increases in rates that might reduce
the number of customers that would be willing to execute loans. Other factors
that could cause the Company's results to differ materially from these
forward-looking statements include, but are not limited to, the following:
changes in economic conditions which could (i) increase the default rate for
loans originated by the Company and adversely affect the Company's ability to
sell its loans and (ii) reduce the Company's potential customer base by
decreasing the credit worthiness of potential customers below the minimum levels
at which it is profitable for the Company to make and sell loans; the limited
operating history of HomeAdd (which has been in business only since 1995)
available for reference in attempting to gauge the prospects of the Company's
lending business; inability to sell loans or the loss of outside funding sources
(currently limited to a single line of credit with a bank), either of which
could severely and adversely affect the lending operations because the Company
does not have sufficient internal resources to finance holding a substantial
number of loans until their maturity; the adverse effects of competition,
particularly in light of the existing customer relationships and greater
capital, experience and other resources of the Company's competitors and
potential competitors, especially banks; changes in substance, enforcement or
interpretation of applicable federal and state laws and regulations, which could
impose requirements which the Company would be unable to meet; and the loss of
key executives which the Company might be unable to replace due to its limited
number of personnel.
Liquidity and Capital Resources
Anticipated Liquidity Requirements
As discussed below under "Cash and Cash Equivalents" and "Debt
Arrangements," the Company currently 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 meet its liquidity
requirement during the next twelve months.
Refer to Item 1 of Part II, "Legal Proceedings" for a discussion of the
Company's contingent liabilities.
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Sale of real property
The Company executed a contract to sell its office and warehouse
facility in Tampa, Florida for $425,000, less certain selling expenses, during
August of 1997. The sale was consummated on November 19, 1997. Under the terms
of the agreement, the Company financed $75,000 of this sales price over ten
years and holds a second mortgage on the Tampa property bearing interest at 8.5%
interest. The Company can offer no guarantee as to the creditworthiness of the
purchaser of the building. Proceeds from the sale of the Tampa facility were
applied first to the payment of expenses related to the sale, and remaining
proceeds were used to provide operating capital for HomeAdd.
Cash and Cash Equivalents
The Company had cash and cash equivalents in the amount of $249,000 as
of May 31, 1998. Cash excess of amounts required for operations is invested in
interest bearing accounts which may be liquidated by the Company to meet its
cash needs on a daily basis. The Company earned approximately $18,000 on its
cash and cash equivalents investments during the nine months ended May 31, 1998.
Restricted investment
The Company is required as described in the following paragraph to
maintain an investment in HomeAdd of $500,000. On May 31, 1998, HomeAdd owned a
Federal Home Loan Bank Bond that matures on June 19, 1998 in the amount of
$500,000 and bears interest at 5.9%. The $500,000 investment is pledged as
collateral to the warehouse line of credit as described in the following
paragraph. The investments of HomeAdd earned approximately $20,000 during the
nine months ended May 31, 1998.
Debt Arrangements
Effective April 30, 1998, HomeAdd renewed its warehouse line of credit
with a bank and increased the amount of the line of credit from $500,000 to
$1,500,000. The warehouse line of credit is used to finance loans made to third
parties in connection with its consumer finance business. The loans made by
HomeAdd are collateral for this line of credit. In addition to the loans made by
HomeAdd, the $500,000 investment described in the above paragraph is pledged as
collateral to this $1,500,000 warehouse line of credit. This line of credit
bears interest at the bank's prime rate. The line of credit agreement, among
other things, requires the repayment of an advance within twenty-five days from
the date of the advance. Under the terms of the loan agreement and an agreement
that the Company has executed with HomeAdd, HomeAdd is required to maintain
tangible net worth of at least $500,000. See the next paragraph for the amount
of net worth required by HUD. 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 and this asset has been pledged as collateral to the
warehouse line of credit as described above. This line of credit expires on
December 31, 1999.
Capital Requirements for HomeAdd
The Company invested $924,000 in HomeAdd during the fiscal year ended
August 31, 1997 and an additional $384,000 during the nine months ended May 31,
1998. The investment was used as follows: acquisition of common stock - $15,000,
equipment rental for first year - $18,000, purchase of U. S. Treasury
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bill - $500,000, purchase of money market account - $25,000 and operating
capital of $750,000. HUD requires that HomeAdd have an adjusted net worth of at
least $250,000. Given its cash and cash equivalents position, the Company
believes that it has the capacity to provide the additional capital that will be
required by HomeAdd during fiscal 1998. The Company presently anticipates that
with the increase in its line of credit, it will have sufficient capital to fund
its operations through fiscal year 1999.
Year 2000
Many existing hardware and software computer systems were designed to
accept only two-digit date entries for the year, assuming that the first two
digits of every year are "19." When confronted with a date in the year 2000 or
beyond, such systems may react by malfunctioning or failing entirely. The
Company has assessed key financial, informational and operational systems.
Management does not anticipate that the Company will encounter significant
operational issues relating to the Year 2000 problem. Furthermore, the financial
impact of making required systems changes is not expected to be material to the
Company's consolidated financial position, results of operations or cash flows.
PART II. Other information
ITEM 1. Legal Proceedings
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. This lawsuit is described in detail in the Company's annual
report on Form 10-KSB for the fiscal year ended August 31, 1997.
During December 1997, an agreement in principle was reached to settle
the Holiday Inn's claim against the Company, RSI Corporation and Sparjax
Corporation as well as all other defendants. The settlement involves the payment
by the Company of $42,000 to end claims by all parties to this litigation
against the Company, RSI Corporation and Sparjax Corporation. The Company is
informed that settlement documents have been circulated to all counsel for
review and comment. There can be no assurance that the settlement will be
consummated. The $42,000 settlement has been accrued in the accompanying
financial statements.
Insurance recovery
During fiscal year 1997, the Company paid Triple A Machine Shop, Inc.
("Triple A") $300,000 in settlement of a lawsuit brought by Triple A against a
subsidiary of the Company. This settlement is described in detail in the
Company's annual report on Form 10-KSB for the fiscal year ended August 31,
1997. During the third quarter of fiscal 1998, the Company's insurance carrier
agreed to pay the Company $100,000 to resolve the Company's claim for
reimbursement of the Triple A settlement expense. Accordingly, the Company
recorded this $100,000 amount during the third quarter of fiscal 1998. The
Company received actual payment of the $100,000 in June 1998.
ITEM 2. CHANGES IN SECURITIES*
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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 Exhibit 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 3.1.1 to the Form S-4.
3.2.2 Amendments to By-laws: Incorporated by reference to Exhibit 3.2.2
to the Form 10-KSB of the Registrant filed with the Securities and
Exchange Commission for the fiscal year ended August 31, 1996,
File No. 0-18091.
4.1 See Exhibits 3.1, 3.1.1, 3.2.1 and 3.2.2.
4.1.1 Specimen of Certificate for RSI Holdings, Inc., common stock:
Incorporated by reference to Exhibit 4.1.2 to the Form S-4.
10.1 First Amended and Restated Loan Agreement dated to be
effective April 30, 1998 by and among the Company, HomeAdd
Financial Corporation and First Union National Bank, together
with related documents.
27 Financial Data Schedule (electronic filing only)
(b) Reports on Form 8-K
There were no reports on Form 8-K filed during the third quarter ended
May 31, 1998.
15
<PAGE> 15
SIGNATURES
In accordance with the requirements of the Exchange Act, the registrant caused
this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
RSI HOLDINGS, INC.
--------------------------
July 14, 1998 /s/ Joe F. Ogburn
- --------------- ------------------------------
(Date) Joe F. Ogburn,
Vice President and Treasurer
(Principal Accounting Officer)
16
<PAGE> 1
EXHIBIT 10.1
<PAGE> 2
THIS AGREEMENT IS SUBJECT TO ARBITRATION
PURSUANT TO S.C. CODE SECTION 15-48-10 ET SEQ.
FIRST AMENDED AND RESTATED LOAN AGREEMENT
THIS FIRST AMENDED AND RESTATED LOAN AGREEMENT, dated to be effective
as of April 30, 1998 (the "Agreement"), is made and entered into by and among
First Union National Bank, a national banking association with its principal
place of business located in Greenville, South Carolina ("First Union"), HomeAdd
Financial Corporation a corporation organized and existing under the laws of the
State of South Carolina (f/k/a CambridgeBanc, Inc.)(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, Florida 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. Effective
as of December 12, 1996, First Union extended 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 "Original Loan") pursuant to the terms and
conditions of a Loan Agreement with an effective date of December 12, 1996 among
Borrower, First Union and RSI ("Original Loan Agreement"). Advances under the
Original Loan were used by Borrower to finance FHA Title I and Conventional Loan
Mortgage.
On August 25, 1997, Borrower, First Union and RSI amended the Original
Loan Agreement pursuant to that First Amendment to Loan Agreement to (i) reflect
the name changes of First Union National Bank of South Carolina to First Union
National Bank and of CambridgeBanc, Inc. to HomeAdd Financial Corporation, (ii)
permit bulk purchases of Loans by Purchasers, and (iii) extend the time for
repayment of an Advance from fifteen (15) to twenty-five (25) days.
The Termination Date of the Original Loan is April 30, 1998. Borrower
has requested and First Union has agreed to renew the Original Loan until
December 31, 1999 in an increased principal amount of $1,500,000.00 (the "Loan")
provided Borrower and RSI agree to the terms and conditions set forth in this
First Amended and Restated Loan Agreement.
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.
<PAGE> 3
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, (iii) the
Liquid Assets and (iv) 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.
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 One
Million Five Hundred Thousand and no/100 Dollars ($1,500,000.00) 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, tradenames, 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.
______________ maintained by Borrower at First Union's principal banking office
in Greenville, South Carolina, 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.
<PAGE> 4
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, 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 "Liquid Assets" means that certain $500,000 in aggregate
principal amount of liquid assets to be maintained by Borrower in the form of
(i) U.S. Treasury Bills, (ii) deposits and/or certificates of deposit with First
Union or any other Federally Insured Savings Institution approved by First Union
in its sole discretion, (iii) any other United States Government or United
States Government Agency obligation with a maturity of five (5) years or less,
or (iv) any combination of the above.
Section 1.18 "Loan Documents" means this Agreement, the Note, the
Security Agreement, the Pledge and Assignment 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 1.19 "Mortgage" means any mortgage executed by a Mortgagor
pursuant to a Mortgage Loan as security for obligations under its respective
Mortgage Note.
Section 1.20 "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 which has
been made to a Mortgagor by Borrower.
Section 1.21 "Mortgage Note" means a secured promissory note executed
by a Mortgagor to evidence indebtedness for a Mortgage Loan.
Section 1.22 "Mortgagor" means a person who has received a Mortgage
Loan originated by Borrower.
Section 1.23 "Note" means the promissory note from Borrower to First
Union dated of even date herewith in the principal amount of up to One Million
Five Hundred Thousand and no/100 Dollars ($1,500,000.00) 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.
<PAGE> 5
Section 1.24 "Permitted Liens" means those liens set forth on Exhibit D
attached hereto and incorporated herein by reference or those approved by First
Union in writing in its sole discretion.
Section 1.25 "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 1.26 "Purchase Price" means the amount to be paid by a
Purchaser to Borrower for the purchase of any specified Mortgage Note(s) and
related Mortgage(s)."
Section 1.27 "Purchaser" means any person or entity reasonably
acceptable to First Union with respect to the purchase of a Mortgage Note(s) and
related Mortgage(s). First Union's entering into of 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 First Amended and Restated
Security Agreement from Borrower to First Union dated of even date in which
Borrower grants to First Union a first priority security interest in the
Collateral.
Section 1.29 "Termination Date" means December 31, 1999, 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)
ninety percent (90%) 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 5.3 or (ii) Section 5.1 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
<PAGE> 6
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 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 E 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.
<PAGE> 7
(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.
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
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
obligations have 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
Ten and no/100 Dollars ($10.00) for each originated Mortgage Loan funded by an
Advance under the Loan as a condition precedent to any Advance.
<PAGE> 8
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.
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 up to One Million
Five Hundred Thousand and no/100 Dollars ($1,500,000.00). 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, 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 has granted and
assigned and 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
and the Liquid Assets.
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.
<PAGE> 9
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 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
SALE OF MORTGAGE NOTES
Section 5.1 Sale of Mortgage Notes; Pledge of Borrower's Account;
Acknowledgement of Bailment. With respect to each Mortgage Loan, Borrower agrees
that the Mortgage Note and Collateral Documents shall be sold to a Purchaser
within twenty-five (25) days of the date of the Advance funding the respective
Mortgage Loan. 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, the 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 of 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 such
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 5.2 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 5.3 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 twenty-five (25) 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 pay down 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.
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
<PAGE> 10
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 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.
<PAGE> 11
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 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
<PAGE> 12
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 F 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.
<PAGE> 13
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
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.
<PAGE> 14
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 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
<PAGE> 15
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.
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
approval of the potential Purchasers by First Union, shall require each
such Purchaser to execute a Bailee Agreement prior to the sale of any
Mortgage Loan to such potential Purchaser.
7.1.19 Year 2000 Compatibility. Borrower shall take all action
necessary to assure that Borrower's computer-based systems are able to
operate and effectively process data including dates on or after
January 1, 2000. At the request of First Union, Borrower shall provide
First Union with assurance acceptable to First Union of Borrower's year
2000 compatibility.
<PAGE> 16
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
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 G
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.
<PAGE> 17
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;
(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
<PAGE> 18
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 7.1.18 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 (which failure to purchase is not
directly or indirectly the fault of Borrower or a result of Borrower's
actions), 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
<PAGE> 19
(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.
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.
<PAGE> 20
(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,
Borrower 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, pursue
any and all rights and remedies directly against 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.
<PAGE> 21
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 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
<PAGE> 22
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.
<PAGE> 23
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 Arbitration Act, S.C. Code Ann. ss.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.
<PAGE> 24
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:
<PAGE> 25
If to Borrower: HomeAdd Financial Corporation
Post Office Box 17918
Greenville, SC 29606
Attn: Mr. Matthew J. Marron, Jr.
If to First Union: First Union National Bank
Post Office Box 17918
Greenville, South Carolina 29602
Attn: Mr. Charles P. Cecil
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.
<PAGE> 26
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 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 to
be effective as of the date first written above.
HomeAdd Financial Corporation
By: /s/ Matthew J. Marron, Jr.
Printed Name: Matthew J. Marron, Jr.
Title: President
FIRST UNION NATIONAL BANK
By: /s/ Charles P. Cecil
Printed Name: Charles P. Cecil
Title: SVP
RSI HOLDINGS, INC.
By: /s/ Buck A. Mickel
Printed Name: Buck A. Mickel
Title: Vice President
<PAGE> 27
EXHIBIT A
BAILEE AGREEMENT
THIS BAILEE AGREEMENT is entered into by and among First Union National
Bank ("Lender"), HomeAdd Financial Corporation (f/k/a 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 pursuant to a First Amended and Restated Loan Agreement with an effective
date of April 30, 1998, among Lender, Seller and RSI Holdings, Inc., as the same
may be amended from time to time ("Loan Agreement"), 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;
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 seventy-two (72) hours following
receipt of a Bulk Purchase, 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):
Lender: First Union National Bank
1 Beattie Place
Greenville, South Carolina 29602
Attention: Linda G. Burroughs
Telefax: (864) 255-8261
Telephone: (864) 255-8337
<PAGE> 28
For the purposes hereof, a "Bulk Purchase" shall mean the purchase by Buyer of
more than one (1) Mortgage Loan on the same date from Seller. 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 required by the Loan Agreement. 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. Borrower shall not be required to return a cover letter to Lender for a
non Bulk Purchase.
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. 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 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 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
Attention: Linda G. Burroughs
<PAGE> 29
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
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
<PAGE> 30
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):
HomeAdd Financial Corporation
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.
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
________________ , 19_____.
LENDER: First Union National Bank
By:
Name:
Title:
SELLER: HomeAdd Financial Corporation
By:
Name: Matthew J. Marron, Jr.
Title: President
BUYER:
By:
Name:
Title:
<PAGE> 31
Exhibit A to Bailee Agreement
WAREHOUSE LENDER'S LETTER
Date:
Attention: Residential Mortgages - Conduit
Dear _______________________________:
Promissory Notes and all other documents evidencing the below-listed loans are
attached hereto and are being delivered to ("____________________"), in
_____________________________ capacity as bailee for First Union National Bank
("Lender"), pursuant to the Bailee Agreement dated , 199___ (the "Bailee
Agreement"), among Lender, as warehouse lender, HomeAdd Financial Corporation
(f/k/a CambridgeBanc, Inc.), as Seller, and ___________________________________,
as Buyer. Lender holds a security interest in such Promissory Notes, Mortgage
and all documents related thereto.
Loan # Name:
Loan # Name:
Loan # Name:
Loan # Name:
Loan # Name:
Loan # Name:
Loan # Name:
Loan # Name:
Loan # Name:
Loan # Name:
Loan # Name:
Loan # Name:
Loan # Name:
Loan # Name:
Loan # Name:
Loan # Name:
Loan # Name:
Loan # Name:
Loan # Name:
Loan # Name:
Execution of this letter shall constitute Buyer's agreement that it will; (i)
send or cause to be sent to Seller payments relating to the above-referenced
Promissory Notes as specified in Section 4 of the Bailee Agreement within ten
(10) days of receipt of this letter; or (ii) in the alternative, return such
Promissory Notes and other documents to Lender as specified in Section 5 of the
Bailee Agreement within ten (10) days of receipt of this letter.
Sincerely,
HomeAdd Financial Corporation
Name:
Title:
<PAGE> 32
The undersigned hereby acknowledges receipt of this letter and the
above-referenced Promissory Notes and other documents, and that the undersigned
will hold such Promissory Notes and other documents as bailee on behalf of the
above-referenced Lender, subject to Lender's security interest therein and the
terms and conditions of the Bailee Agreement.
By:
Name:
Title:
By:
Name:
Title:
<PAGE> 33
EXHIBIT B
CAPITAL CONTRIBUTION AGREEMENT
AGREEMENT BETWEEN HOMEADD FINANCIAL CORPORATION.
AND RSI HOLDINGS, INC.
THIS AGREEMENT dated to be effective as of April 30, 1998 by and
between HomeAdd Financial Corporation, a South Carolina corporation ("HomeAdd")
and RSI Holdings, Inc., a North Carolina corporation ("RSI").
WHEREAS, HomeAdd is a wholly-owned subsidiary of RSI; and
WHEREAS, HomeAdd desires to obtain a revolving line of credit (the
"Line of Credit") for up to $1,500,000 from First Union National Bank ("Lender")
pursuant to the terms of that certain First Amended and Restated Loan Agreement
dated to be effective of even date herewith by and between HomeAdd, 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
HomeAdd and RSI enter into this Agreement; and
WHEREAS, each of HomeAdd 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 (i) to make capital contributions to HomeAdd so as to cause HomeAdd 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 and (ii) to fund any operating losses incurred by HomeAdd to the extent
such operating losses cause the Consolidated Tangible Net Worth of HomeAdd to
drop below $500,000.
RSI and HomeAdd 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 this ___ day of May, 1998.
HOMEADD FINANCIAL CORPORATION.
- ---------------------------- ------------------------------
Witness By:
Its: President
RSI HOLDINGS, INC.
- ----------------------------- --------------------------
Witness By:
Its: Vice President
<PAGE> 34
EXHIBIT C
THIS AGREEMENT IS SUBJECT TO ARBITRATION
PURSUANT TO S.C. CODE ANN. SECTION 15-48-10
FORM OF PROMISSORY NOTE
$1,500,000.00 April 30, 1998
HomeAdd Financial Corporation
(f/k/a CambridgeBanc, Inc.)
Post Office Box 17918
Greenville, South Carolina 29606
("Borrower")
First Union National Bank
1 Beattie Place
Greenville, South Carolina 29602
("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 One Million Five Hundred Thousand and No/100 Dollars
($1,500,000.00) 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 First Amended and Restated
Security Agreement of even date herewith and (ii) Collateral described in those
certain Assignments of Mortgage and Mortgage Note from Borrower to Lender which
have been or will be given from time to time during the term of the Loan as
described in the First Amended and Restated 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 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.
<PAGE> 35
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 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 May 15, 1998, and on the same
day of each month thereafter through December 31, 1999. All outstanding
principal and accrued but unpaid interest shall be due and payable in full on
December 31, 1999.
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. ss. 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. ss. 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 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
<PAGE> 36
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.
LINE 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 ninety percent (90%) 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.
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
<PAGE> 37
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 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
<PAGE> 38
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, to be effective as of the day and year first above
written, has caused this Note to be executed under seal.
HomeAdd Financial Corporation (f/k/a CambridgeBanc, Inc.)
Taxpayer Identification Number: 57-1030216
CORPORATE By: ______________________________________________
SEAL Matthew J. Marron, Jr., President
<PAGE> 39
EXHIBIT D
PERMITTED LIENS
None
<PAGE> 40
EXHIBIT E
ASSIGNMENT OF MORTGAGE AND MORTGAGE NOTE
The undersigned, for value received, to wit, money loan, hereby
assigns, conveys, sets over and transfers to First Union National Bank, its
successors and assigns, all of the undersigned's right, title and interest in
and to (i) the promissory note dated _______________________, of
_____________________________, as borrower, payable to the undersigned, and (ii)
the mortgage of Borrower recorded with the ____________________________ for
_________________ County, South Carolina in Book _____ at Page ____ on
_______________________, 19__.
This the day of , 19 .
WITNESSES: HomeAdd Financial Corporation
By:
Title
STATE OF SOUTH CAROLINA )
) PROBATE
COUNTY OF )
PERSONALLY appeared before me the undersigned witness who after first
being duly sworn, deposes and says that s/he saw the within-named HomeAdd
Financial Corporation, a corporation, by ___________________________, its
_________________________, sign, seal and as its act and deed, deliver the
within-written Assignment of Mortgage and Mortgage Note for the uses and
purposes therein mentioned, and that s/he together with the other witness whose
signature appears above, witnessed the execution thereof.
WITNESS
SWORN TO BEFORE ME THIS
____ day of ____________, 199__.
(L.S.)
Notary Public for South Carolina
My commission expires:
<PAGE> 41
EXHIBIT F
SUBSIDIARIES
Borrower owns all of the issued and outstanding stock of HomeAdd
Financial Services Corp., a North Carolina corporation.
<PAGE> 42
EXHIBIT G
SCHEDULE OF INDEBTEDNESS
None
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONDENSED CONSOLIDATED BALANCE SHEET AT MAY 31, 1998 AND THE CONDENSED
CONSOLIDATED STATEMENT OF OPERATIONS FOR THE NINE MONTHS ENDED MAY 31, 1998 AND
IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> AUG-31-1998
<PERIOD-START> SEP-01-1997
<PERIOD-END> MAY-31-1998
<CASH> 249,000
<SECURITIES> 0
<RECEIVABLES> 794,000
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 1,106,000
<PP&E> 231,000
<DEPRECIATION> 48,000
<TOTAL-ASSETS> 1,802,000
<CURRENT-LIABILITIES> 816,000
<BONDS> 0
0
0
<COMMON> 79,000
<OTHER-SE> 833,000
<TOTAL-LIABILITY-AND-EQUITY> 1,802,000
<SALES> 0
<TOTAL-REVENUES> 569,000
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 999,000
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 18,000
<INCOME-PRETAX> (448,000)
<INCOME-TAX> 0
<INCOME-CONTINUING> (448,000)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (448,000)
<EPS-PRIMARY> (.06)
<EPS-DILUTED> (.06)
</TABLE>
