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FORM 10-QSB
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20459
[x] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended December 31, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from __________ to __________
Commission file number 0-19420
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CREDIT DEPOT CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 58-1909265
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
700 Wachovia Center
Gainesville, Georgia
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(Address of principal executive offices)
30501
(Zip code)
(770) 531-9927
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(Registrant's telephone number, including area code)
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of
1934 during the preceding 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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Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the most recent practicable date.
Class Outstanding at December 31, 1996
- ------------------- --------------------------------
Common Stock $.001 Par Value 3,717,061
Transitional Small Business Disclosure Format (check one):
YES NO X
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CREDIT DEPOT CORPORATION
Table of Contents
<TABLE>
<CAPTION>
PART I. FINANCIAL INFORMATION Page
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Item 1 -- Financial Statements (Unaudited)
<S> <C>
Condensed Consolidated Balance
Sheets as of June 30, 1996 and
December 31, 1996 3
Condensed Consolidated Statements
of Operations for the Three Months
Ended December 31, 1995 and 1996
and the Six Months ended
December 31, 1995 and 1996 4
Condensed Consolidated Statements
of Cash Flows for the Six Months
Ended December 31, 1995 and 1996 5
Notes to Condensed Consolidated
Financial Statements 6
Item 2 -- Management's Discussion and Analysis
of Financial Condition and Results of
Operations 7
Part II. OTHER INFORMATION
Item 1 -- Legal Proceedings 11
Item 2 -- Changes in Securities 11
Item 3 -- Defaults upon Senior Securities 11
Item 4 -- Submission of Matters to Vote of
Security Holders 11
Item 5 -- Other Information 12
Item 6 -- Exhibit and Reports on Form 8-K 12
SIGNATURES 13
</TABLE>
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CREDIT DEPOT CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEETS
(Unaudited)
<TABLE>
<CAPTION>
June 30, DECEMBER 31,
1996 1996
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<S> <C> <C>
ASSETS
Loans receivable
Consumer, collateralized by real estate $ 6,958,903 $ 4,887,663
Allowance for credit losses (250,260) (170,383)
------------------- -----------------
Net loans receivable 6,708,643 4,717,280
Cash 1,707,320 1,110,447
Property and equipment, net 493,560 537,730
Real estate held for resale 42,397 434,715
Other assets:
Receivables due from related parties 222,209 225,214
Prepaid expenses and other assets 345,064 212,724
Excess servicing asset net of reserve 193,038 143,841
Interest-only strips receivable 1,317,577 4,787,682
Accrued interest receivable 113,577 87,612
Deferred financing costs 957,158 1,318,977
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Total Assets $ 12,100,041 $ 13,576,222
=================== =================
LIABILITIES AND STOCKHOLDERS' EQUITY
Convertible notes payable $ 8,500,000 $ 10,954,250
Other borrowings 1,925,000 703,098
Accounts payable 54,393 33,540
Accrued liabilities 329,322 286,501
Dividends payable 144,000 141,750
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Total liabilities 10,952,715 12,119,139
Stockholders Equity
Preferred stock, $.001 par value: 2,000,000
shares authorized, 320,000 shares issued and outstanding
at June, 1996, and 315,000 shares issued and outstanding
at December 31, 1996 320 315
Common stock, $.001 par value: 35,000,000 shares
authorized, 3,378,761 shares issued and outstanding
at June 30, 1996 and 3,717,061 issued and outstanding
at December 31, 1996 3,379 3,717
Additional paid-in capital 13,242,231 13,987,648
Accumulated deficit (12,098,604) (12,534,597)
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Total stockholders' equity 1,147,326 1,457,083
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Total liabilities and stockholders' equity $ 12,100,041 $ 13,576,222
=================== =================
</TABLE>
See accompanying notes.
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CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
December 31, December 31,
1995 1996 1995 1996
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<S> <C> <C> <C> <C>
Revenues:
Finance income and fees earned $ 188,831 $ 109,254 $ 295,494 $ 260,550
Gain on sale of receivable 4,482 2,018,212 308,342 3,284,266
Other (3,145) 66,952 26,308 33,314
----------- ---------- ----------- ----------
190,168 2,194,418 630,144 3,578,130
Expenses:
Salaries and employee benefits 648,516 915,987 1,271,894 1,661,674
Legal and professional fees 72,556 97,986 180,600 194,697
Other operating expenses 653,312 612,340 1,079,906 1,098,596
Provision for credit losses 25,000 45,000 75,000 65,000
Interest expense and amortization of
financing costs 161,862 399,157 307,678 708,408
----------- ---------- ----------- ----------
1,561,246 2,070,470
2,915,078 3,728,375
Income (loss) before provision for income
taxes (1,371,078) 123,948 (2,284,934) (150,245)
Provision for income taxes - - - -
----------- ---------- ----------- ----------
Net income (loss) $(1,371,078) $ 123,948 $(2,284,934) $ (150,245)
=========== ========== =========== ==========
Dividends on preferred stock 127,677 141,750 127,677 285,750
Net loss per share of common stock $ (0.44) $ (0.00) $ (.71) $ (.12)
=========== ========== =========== ==========
Weighted average shares outstanding 3,378,761 3,660,861 3,378,761 3,519,811
=========== ========== =========== ==========
</TABLE>
See accompanying notes.
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CREDIT DEPOT CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
Six Months Ended
December 31, December 31,
1995 1996
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<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net loss $ (2,284,934) $ (150,245)
Adjustments to reconcile net loss
to cash used in operating activities:
Provision for credit losses 75,000 65,000
Depreciation and amortization 260,181 158,394
Changes in operating assets and liabilities:
Due from related parties (62,203) (3,005)
Prepaid expenses and other 192,858 158,305
Deferred financing costs 230,874 (361,819)
Loans originated (16,971,461) (41,108,754)
Loans repurchased (610,385) (590,429)
Deferred fee income (3,075) -
Excess servicing asset, net 137,192 49,197
Interest-only strips receivable - (3,470,607)
Proceeds from loans sold 14,260,058 42,304,703
Principal collections on loans not sold 1,082,804 898,653
Accounts payable and accrued liabilities 11,224 (63,674)
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Net cash used in operating activities (3,681,867) (2,114,281)
CASH FLOWS FROM INVESTING ACTIVITIES
Purchase of property and equipment (65,140) (122,567)
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Net cash used in investing activities (65,140) (122,567)
CASH FLOWS FROM FINANCING ACTIVITIES
Dividends on preferred stock - (285,750)
Proceeds from issuance of convertible notes - 2,800,000
Proceeds from issuance of preferred stock 5,447,767 -
Payments on other borrowings (2,500,000) (977,373)
Advance on interest-only strip receivable - 103,098
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Net cash provided by financing activities 2,947,767 1,639,975
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Net increase (decrease) in cash (799,240) (596,873)
Cash at beginning of period 1,758,440 1,707,320
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Cash at end of period $ 959,200 $ 1,110,447
============ ============
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION
Cash paid during the period for interest $ 307,678 $ 628,951
============ ============
Conversion of loans receivable to real estate held for sale $ 177,262 $ 564,817
============ ============
</TABLE>
See accompanying notes.
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CREDIT DEPOT CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
December 31, 1996
(Unaudited)
1. BASIS OF PRESENTATION
The accompanying financial information includes the accounts of Credit
Depot Corporation ("CDC") and its wholly owned subsidiaries Credit Depot
Corporation of Georgia, Credit Depot Corporation of South Carolina,
Credit Depot Corporation of North Carolina, and Credit Depot Corporation
of Ohio, Credit Depot Corporation of Tennessee, Credit Depot Corporation
of Florida, and Credit Depot Corporation of Indiana. Reference to "the
Company" includes CDC and its subsidiaries. The financial information is
unaudited but includes all adjustments consisting only of normal
recurring adjustments which the Company's management believes to be
necessary for fair presentation of the periods presented. Interim
results are not necessarily indicative of results for a full year.
Dollar figures rounded to the nearest $1,000 in the following discussion
are approximate unless otherwise noted. The financial statements should
be read in conjunction with the Company's audited financial statements
for the year ended June 30, 1996.
2. NET INCOME (LOSS) PER SHARE
Dividends on preferred stock are subtracted from net income (or loss) to
arrive at the numerator for this calculation. The denominator is the
weighted average number of common shares and, when dilutive, common
equivalent shares (convertible securities, warrants and stock options)
outstanding during each of the periods. Dilutive shares are not
considered if the numerator (net income or loss less preferred dividends)
is negative.
3. GAIN ON SALE OF RECEIVABLES
Gains on the sale of loans to third parties wherein the Company retains
an interest in the loan are calculated as the present value of the
interest rate differential between the rate charged to the borrower and
the rate earned by the third party, after taking into consideration the
Company's estimate for early prepayments and ongoing servicing costs, if
any. If the Company also retains the servicing rights on loans sold with
a retained interest, a servicing fee is earned. The corresponding asset
recorded at the time of the gain on sale of loans with a retained
interest is amortized in proportion to the income received from the rate
differential retained by the Company over the estimated lives of the
underlying loans. This asset is carried at the lower of amortized cost
or net realizable value.
Gains on sales of loans wherein the Company does not have any further
interest in the loan and does not retain the servicing rights are
calculated as the difference between the cash price paid by the third
party and the principal balance of the loan plus accrued interest.
4. OTHER BORROWINGS
In August 1996, term debt with a principal balance of $875,000 was
paid-off with proceeds from the sale of mortgage loans.
5. CONVERTIBLE SECURITIES
On September 30, 1996, convertible mortgage participation holders having
$400,000 of participations exercised their conversion option and
exchanged their participations for 160,000 shares of common stock.
During the quarter from October 1, 1996 to December 31, 1996, a holder of
preferred stock converted 5,000 shares of preferred stock into 40,000
shares of common stock, and holders of convertible debt converted
$345,750 of notes into 138,300 shares of common stock, as per the
conversion terms of their respective securities.
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Item 2. MANAGEMENT'S DISCUSSIONS AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATION
CERTAIN ACCOUNTING CONSIDERATIONS
Most of the Company's revenue in both the three months and six months
ended December 31, 1996 (the "1996 Three Months" and the "1996 Six Months")
consisted of loans sold by the Company with an interest retained as a gain on
sale of loans. The gain principally represents the present value of the
difference between the interest rate charged by the Company to a borrower and
the interest rate received by the investor who purchased the loans, which is
also referred to as the "Spread". The corresponding asset used to record this
gain is referred to as an "Interest-Only Strip Receivable". In previous years,
the Company has sold loans in a similar manner but also retained the servicing
rights to the loans, creating a gain wherein the corresponding asset is
referred to as the "Excess Servicing Asset", and additionally providing revenue
in the form of servicing income. The Company recognizes such gain on sale of
loans in the fiscal year in which such loans are sold, although cash
(representing the Interest-Only Strip Receivable or Excess Servicing Asset and
servicing fees) is received by the Company over the lives of the loans. Both
the Interest-Only Strip Receivable and the Excess Servicing Asset computations
are in part based upon, and amortized over, the estimated lives of the loans
using certain prepayment assumptions.
Because the gain recognized in the year of sale is equal to the
present value of the estimated future cash flows from the Spread, the amount of
cash actually received over the lives of the loans can exceed the gain
previously recognized at the time the loans were sold. In subsequent years,
the Company would recognize additional income and fees to the extent actual
cash flows from such loans exceed the amortization of the Interest-Only Strip
Receivable or Excess Servicing Asset. If actual prepayments with respect to
sold loans occur faster than were projected at the time such loans were sold,
the carrying value of the Interest-Only Strip Receivable or Excess Servicing
Asset is written down through a charge to earnings in the period of adjustment.
During the three months ended December 31, 1995 (the "1995 Three Months"), the
Company charged $75,000 to earnings for anticipated prepayments at that time.
No charge was deemed necessary for the 1996 Three Months.
RESULTS OF OPERATIONS
The Company continued implementing a significant expansion program
during the 1996 Three Months. The program began in the previous quarter after
the Company received the proceeds from a $9,000,000 convertible debt placement.
The Company's loan originations and purchases for the 1996 Three Months were
$24,937,000, compared to $16,172,000 for the previous quarter ending September
30, 1996, and $9,223,000 during the 1995 Three Months. This significant
improvement in originations led to increased revenues in the form of gain on
sale of loans, resulting in an operating profit of $124,000 for the 1996 Three
Months, as compared to a loss of $274,000 in the quarter ending September 30,
1996 and a loss of $1,371,000 in the 1995 Three Months.
The Company continued to develop operations in its existing states by
opening a new offices North Carolina, Tennessee, and Florida, and continued its
geographic expansion by opening a new office in Chicago, Illinois. The Company
also commenced operations in Missouri and Virginia during the first week of
January 1997. The Company is in the process of obtaining mortgage licenses in
other states and expects to start operations in those states in the near
future.
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Three Months Ended December 31, 1995 and 1996
During the 1996 Three Months, the Company recorded net income of
$124,000, as compared to a net loss of $1,371,000 for the 1995 Three Months.
After deducting dividends on Preferred Stock, the net loss per share of common
stock was $(0.00) for the 1996 Three Months as compared to $(0.44) per share
for the 1995 Three Months. The one line item which had the most significant
change reflecting this improvement was the increase in gain on sale of loans
from $4,000 in 1995 to $2,018,000 in the 1996 comparable period. While the
dollar amount of loans sold increased from $6,976,000 to $22,173,000, the
average percent of gain on each loan sold also improved as the method of loans
sales changed between the comparable periods. In the 1995 Three Months, all
loans sold were on a "Whole" loan basis, meaning the Company retained no
interest or servicing rights after the sale, and received a cash premium in
addition to the face value of the loan. There was only a nominal net gain on
sale percentage for loans sold Whole during the 1995 Three Months (primarily
due to the Company selling loans at discount rates due to cash requirements at
the time), compared to a margin of 9.1% for loans sold during the 1996 Three
Months. Most of the loans sold in the 1996 quarter were sold pursuant to an
agreement with a large institution. Under the agreement, the Company has agreed
to sell this institution $125,000,000 of mortgage loans during a one year
period which will be included in such institution's securitized mortgage pools
with the Company retaining a residual interest in the loans delivered for
securitization. The gain on loans sold when delivered in this manner is
significantly higher than could be obtained by selling loans on a Whole basis,
and is the major reason for the dramatic improvement in gain on sale
percentage. However, a few older loans that did not meet the criteria for
inclusion in a securitized pool were sold Whole at discount rates, thus
lowering the gain on sale percentage slightly for the quarter. These Whole loan
sales were made in conjunction with a Company goal of divesting itself all
loans held in its own portfolio that cannot be included in a securitized
mortgage pool.
Total expenses increased 33%, from $1,561,000 to $2,070,000, during
the 1995 Three Months to the 1996 Three Months. The largest increase was in
interest expense and financing cost amortization, which increased 147% from
$162,000 to $399,000 during the comparable periods. This increase is from the
accrual of interest on the $9,000,000 convertible notes at a rate of 10% during
the 1996 quarter, and from the amortization of the financing costs paid to
raise the $9,000,000.
The second largest increase between the quarters was in salaries and
employee benefits, which increased from $649,000 to $916,000, or 41% between
the comparable periods. This increase was the result of a planned expansion
program by the Company to primarily increase its sales and field operations as
capital became available. At December 31, 1995, the Company had 46 employees
in six offices as compared to 68 employees in fifteen offices at December 31,
1996.
Six Months Ended December 31, 1995 and 1996
During the 1996 Six Months, the Company had a net loss of $150,000, as
compared to a net loss of $2,285,000 for the six months ended December 31,
1995 (the "1995 Six Months). Net loss per share of Common Stock after deducting
dividends on Preferred Stock was $(0.12) during the 1996 Six Months compared to
a net loss of $(0.71) per share during the 1995 Six Months. Again, the primary
reason for this improvement was the increase in gain on sale of loans from
$308,000 in 1995 to $2,018,000 in the 1996 comparable period. While the dollar
amount of loans sold increased from $14,260,000 to $42,305,000, the average
percent of gain on each loan sold also improved as the method of loans sales
changed between the comparable periods. In the 1995 Six Months, most loans sold
were on a Whole loan basis. There was a 2.2% net gain on sale percentage for
loans sold during the 1995 Six Months (primarily due to the Company selling
loans at discount rates due to cash requirements during the period), compared
to a margin of 4.8% for loans sold during the 1996 Six Months. Most of the
loans sold in the 1996 Six Months were sold with a retained interest and were
to be included in the securitized mortgage pool of a third party. However, a
number of older loans and loans that did not meet the criteria for inclusion in
a securitized pool were sold Whole at discount rates during the 1996 Six Months
(primarily in the first fiscal quarter), which negatively impacted the gain on
sale percentage obtained from loans sold with a retained interest. These Whole
loan sales were made in conjunction with a Company goal of divesting itself all
loans held in its own portfolio that cannot be included in a securitized
mortgage pool. The Company will always originate some loans that cannot be
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sold with a retained interest, and at December 31, 1996, still had a number of
older loans in its portfolio that did not meet the criteria for inclusion in a
securitized pool.
Total expenses increased 28%, from $2,915,000 to 3,728,000, during the
1995 Six Months to the 1996 Six Months. The largest increase was in interest
expense and financing cost amortization, which increased 130% from $308,000 to
$708,000 during the comparable periods. This increase is from the accrual of
interest on the $9,000,000 convertible notes at a rate of 10% during the 1996
period, and from the amortization of the financing costs paid to raise the
$9,000,000.
The second largest increase between the quarters was in salaries and
employee benefits, which increased from $1,272,000 to $1,662,000, or 31%
between the comparable periods. This increase was the result of a planned
expansion program by the Company to primarily increase its sales and field
operations as capital became available. At December 31, 1995, the Company had
46 employees in six offices as compared to 68 employees in fifteen offices at
December 31, 1996.
LIQUIDITY AND CAPITAL RESOURCES
Loans receivable decreased by $2,071,000 from June 30, 1996 to
December 31, 1996, despite increased originations during the period, as the
Company embarked on a program of liquidating loans that could not be delivered
for securitization. The Company still has some loans which are not suitable for
securitization in its portfolio and will continue to liquidate these as market
conditions permit. Cash also decreased by $597,000 during this period despite
the loan liquidations as the Company continues to operate on a negative cash
flow basis. The primary reason for the negative cash flow is that the Company's
profit from sale of mortgage loans is in the form of interest-only strip
receivable which increased from $1,317,000 to $4,787,682 during the six months.
As discussed in "Certain Accounting Considerations", this receivable is
recorded in lieu of receiving a cash premium for the loans sold into a
securitization.
An new agreement was reached in November 1996 with the same
institution the Company has been delivering loans to for inclusion in
securitized pools. This agreement permits the Company to receive an advance on
a portion the cash it is due with respect to the interest-only strip at the
time of sale of the mortgage loans to the institution. Normally this retained
interest is received in cash over the life of loan.
By its nature, the Company's business requires continual access to
short-term and long-term sources of debt and equity capital. The Company's
capital requirements arise principally from loan originations and loan
repurchases, payments of operating and interest expenses, capital expenditures,
and start-up expenses for expansion into new geographic markets. Additionally,
even if the Company is generating net income, a substantial portion of its
revenues will consist of gain on sale of loans wherein cash is not received at
the time of sale, but over the life of the mortgage loans. The Company does not
expect to generate a positive cash flow for some time, and therefore has
required and expects to continue to require additional financing to fund
additional geographical expansion, to support its infrastructure until such
time as it can increase the volume of loan origination to a point of positive
cash flow, and to realize greater returns on sales of loans. While the Company
recorded a profit during the 1996 Three Months, it had a negative cash flow as
discussed above. The cash outlay was funded primarily out of the proceeds of
the convertible debt offering completed in August 1996 described below.
Capital restraints have from time to time restricted the Company's ability to
increase the volume of mortgage loans it originates, and have negatively
impacted its ability to hold such loans until a sale could be arranged for on
more favorable terms. This has resulted in the Company selling many loans Whole
simply to receive the gain on sale in cash at the time of sale. To the extent
that the Company is unable to obtain periodic infusions of capital, the Company
could be required to sell mortgage loans on less favorable terms than it might
otherwise be available or curtail lending activities. To date, in addition to
the Company's capital raising efforts, the sources of liquidity have been (1)
sales of the loans the Company originates and purchases into secondary markets,
(2) borrowings under a mortgage warehouse line of credit secured by its loans,
(3) finance income earned on Company owned loans and servicing fees generated
on the loan servicing portfolio, (4) borrowings under a repurchase line of
credit (discussed below), (5) other borrowings (discussed below), (6) the
conversion of the Excess Servicing Asset and Interest-Only Strip Receivable
into cash
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over the lives of the loans in the servicing portfolio, and (7) advances
against the cash normally received over the life of the loan as noted in #6
above (discussed below).
In July 1994, the Company completed the placement of $5,550,000 of 8%
Senior Subordinated Convertible Notes due 2004 (the "8% Notes"). In October
1995, the Company agreed to certain conditions as a prerequisite for obtaining
a waiver for technical covenant violations contained in the indenture relating
to the 8% Notes at September 30, 1995. When these conditions were not met at
December 31, 1995, the maturity date of 8% Notes was accelerated to March 30,
1996. The Company repaid $3,250,000 of the 8% Notes in June 1996 ($2,250,000 of
which was paid out of the proceeds of the sale of the 10% Notes described
below) and the remaining $2,300,000 of 8% Notes was exchanged for loans under a
secured warehouse lending facility.
In 1995, the Company completed an offering of $3,000,000 of
convertible mortgage participations and warrants to purchase common stock to be
used solely for the purpose of originating and acquiring mortgage loans. Those
borrowings bear an interest rate of 10% per annum, payable monthly, and are
secured by the underlying mortgage loans. The proceeds from the sale of any
assigned mortgage loans can be used to originate new mortgage loans in which
the holders will have participations. The participations granted to the
holders must be repaid on June 16, 1997. In October 1995, $2,500,000 of the
borrowings were converted by the holders of these participations into Preferred
Stock and warrants as part of a placement of $6,400,000 of 9% Convertible
Preferred Stock and warrants to purchase common stock. On September 30, 1996,
$400,000 of the participations were converted into common stock, leaving one
holder with a $100,000 participation from the original $3,000,000 offering
still outstanding. At December 31, 1996, $100,000 of the preferred stock had
been converted into 40,000 shares of common stock.
In January 1996, the Company obtained a $1,050,000 term loan at a 10%
interest rate secured by certain mortgage loans of the Company. The loan was
scheduled to mature in February 1997, and had an outstanding principal balance
of $875,000 when its was repaid in August 1996 from the proceeds of the sale of
loans. In February 1996, the Company sold $500,000 of convertible mortgage
participations on similar terms to the $3,000,000 of participations sold in
June 1995 described above, all of which is still outstanding.
In June 1996, the Company sold $6,200,000 of a $9,000,000 10%
Convertible Secured Note offering (the "10% Notes"). The Company subsequently
sold the remaining $2,800,000 of the offering in July and August 1996, which
resulted in net proceeds of approximately $8,000,000 in the entire offering.
The 10% Notes are partially secured by essentially all otherwise unpledged
assets of the Company and are convertible into common stock. At December 31,
1996, $345,750 of the 10% Notes had been converted into 138,300 shares of
common stock.
While proceeds from the 10% Notes have recently allowed the Company to
fund loan originations with its own cash, in the future the Company will
require additional short-term credit facilities. The Company had a warehouse
line of credit which expired in June 1995. The Company expects to seek a
replacement warehouse line of credit in the near future. The Company also
utilized a repurchase line of credit intermittently from February of 1995 to
March 1996, which has expired.
From time to time the Company will investigate possible financing
sources which would enable it to continue expanding operations and/or would
provide funds to enable it to expand the volume of mortgage loans it
originates. Additionally, the Company continues to pursue opportunities to
improve the gain on sale of the loans originated and/or the terms under which
its loans can be sold. The Company believes that while it has sufficient
financing to continue to access the securitization market through third
parties, it will require additional financing to provide sufficient capital to
enable it to hold loans for a period of time that would be required under its
long-term strategy to directly access the securitization markets.
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SAFE HARBOR STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM ACT OF
1995
Certain statements contained in "Item 2. Management's Discussion and
Analysis of Financial Condition and Results of Operations", such as statements
concerning the Company's future cash and financing requirements, the Company's
ability to originate and/or acquire mortgage loans, the Company's ability to
enter into securitization transactions and/or otherwise sell mortgage loans to
the third parties and the returns therefrom, and other statements contained
herein regarding matters that are not historical facts are forward looking
statements; actual results may differ materially from those projected in the
forward looking statements, which statements involve risks and uncertainties,
including but not limited to, the following: the Company's ability to obtain
future financings; the uncertainties relating to the Company's ability to
participate in securitizations; and market conditions and other factors
relating to the mortgage lending business. Investors are also directed to the
other risks discussed herein and in other documents filed by the Company with
the Commission.
PART II. OTHER INFORMATION
Item 1. LEGAL PROCEEDINGS
As of the date hereof, the Company is not a party to any material legal
proceedings. The Company from time to time commences foreclosure proceedings
against borrowers who have defaulted on their loans.
Item 2. CHANGES IN SECURITIES
Not applicable.
Item 3. DEFAULT UPON SENIOR SECURITIES
Not applicable.
Item 4. SUBMISSION OF MATTERS TO VOTE OF SECURITY HOLDERS
At the Company's Annual Meeting of Shareholders, held on December
17, 1996, the following members were elected to the Board of Directors:
<TABLE>
<CAPTION>
Affirmative Votes
Votes Withheld
--------- --------
<S> <C> <C>
Craig J. Brunet 3,151,020 13,850
Gerald F. Sullivan 3,151,020 13,850
John C. Thomas, Jr. 3,151,020 13,850
Samuel R. Dunlap, Jr. 3,151,020 13,850
Joel C. Williams, Jr. 3,151,020 13,850
Samuel Scott Hemingway 3,151,020 13,850
Carlos Munoz 3,151,020 13,850
</TABLE>
11
<PAGE> 12
The following proposals were approved at the Company's Annual Meeting of
Shareholders:
<TABLE>
<CAPTION>
Affirmative Negative
Votes Votes Abstentions
------------ ------------- -----------
<S> <C> <C> <C>
1. Approval of an amendment to the 1993 Stock
Option Plan to increase the number of shares
available for issuance from 1,200,000 shares
to 1,600,000 shares 1,198,245 161,613 6,500
2. Approval of an amendment to the Company's
Certificate of Incorporation to increase the
number of authorized shares of Common Stock
to 35,000,000 3,032,293 34,800 7,900
3. Ratification of the election of Ernst & Young LLP
as the Company's independent auditors for the
fiscal year ending June 30, 1997 3,158,570 6,200 100
</TABLE>
Item 5. OTHER INFORMATION
Not applicable.
Item 6. EXHIBIT AND REPORTS ON FORM 8-K
(a) Exhibits
3.1 Certificate of Amendment of the Certificate of
Incorporation of Credit Depot
10.1 Forward Commitment and Offset Agreement
27.1 Financial data schedule
(b) No reports on Form 8-K.
12
<PAGE> 13
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CREDIT DEPOT CORPORATION
-------------------------
(Registrant)
Date: February 7, 1997 /s/ GERALD F. SULLIVAN
---------------------------------
Gerald F. Sullivan
(President and Chief
Executive Officer)
Date: February 7, 1997 /s/ CHARLES D. FARRAHAR
---------------------------------
Charles D. Farrahar
(Vice President and
Chief Financial Officer)
13
<PAGE> 1
EXHIBIT 3.1
CERTIFICATE OF AMENDMENT OF THE
CERTIFICATE OF INCORPORATION OF
CREDIT DEPOT CORPORATION
CREDIT DEPOT CORPORATION, a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware, does
hereby certify:
FIRST: That a meeting of the Board of Directors of Credit Depot
Corporation, a resolution was duly adopted setting forth a proposed amendment
to the Certificate of Incorporation, as amended, of Credit Depot Corporation,
declaring each amendment to be advisable and declaring that approval of such
amendment be considered at the next Annual Meeting of Stockholders.
SECOND: The Board of Directors, at such meeting, resolved that Article
4.1 of the Certificate of Incorporation, as amended, of Credit Depot
Corporation should be amended by deleting such Article 4.1 in its entirety and
substituting in lieu thereof the following:
"FOURTH. 4.1 The total number of shares of all class of stock which
the Corporation shall be authorized to issue shall be thirty-seven million
(37,000,000) shares, which are to be divided into two classes as follows:
35,000,000 shares of Common Stock, par value $.001 per share; and
2,000,000 shares of Preferred Stock, par value $.001 per share."
THIRD: That thereafter, pursuant to resolution of its Board of
Directors, and upon notice in accordance with Section 222 of the General
Corporation Law of the State of Delaware, a meeting was held at which meeting
the necessary number of shares as required by statute were voted in favor of
said amendment.
FOURTH: That said amendment was duly adopted in accordance with the
provisions of Section 222 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, CREDIT DEPOT CORPORATION has caused this
certificate to be executed by Gerald F. Sullivan, its authorized officer, this
30th day of January, 1997.
CREDIT DEPOT CORPORATION
By: /s/Gerald F. Sullivan
-----------------------------------
Name: Gerald F. Sullivan
Title: President & CEO
<PAGE> 1
EXHIBIT 10.1
FORWARD COMMITMENT
LOAN AND OFFSET AGREEMENT
THIS FORWARD COMMITMENT LOAN AND OFFSET AGREEMENT made this 12th day
of November, 1996, by and between [***], a Delaware corporation, with its
principal address at [***] ("Lender") and Credit Depot Corporation, a Georgia
corporation, with its principal address at Wachovia Center, Suite 700,
Gainesville, GA 30501 ("Borrower").
RECITALS
Lender wishes to lend, and Borrower wishes to borrow, subject to the
terms and conditions contained herein, the Advances (as hereinafter defined),
which will be repaid by the Borrower in accordance with the terms of this
Agreement. The parties hereto anticipate that the Advances will be repaid from
amounts which will be earned by Borrower and payable by Lender in connection
with Section 4 Forward Commitment hereof and as set forth in Section 5.(I)
Premium as Earned in the Purchase and Sale Agreement dated as of the
twenty-sixth day of March, 1996, among Lender, Borrower and Norwest Bank
Minnesota, National Association, as trustee ("Premium Agreement").
PROVISIONS
NOW, THEREFORE, in consideration of the Forward Commitment and of the
premises and of the covenants and agreements hereinafter contained, the parties
hereto agree as follows:
1. DEFINITIONS.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
Advance: Each monthly advance by Lender to Borrower on a
Closing Date will be calculated based upon the difference between (a)
the weighted average coupon rate of the principal amount of the
Mortgage Loans sold to Lender by Borrower pursuant to Section 4 hereof
during the prior calendar month and (b) the Par WAC. The Advance will
equal the sum of (i) the principal amount of the Mortgage Loans sold
during the preceding month, times [***] for the first point of the
difference between (a) and (b), and (ii) the principal amount of the
Mortgage Loans sold during the preceding month times the product of
(c) divided by (d) where (c) is equal to (a) - (b) - [***] and (d) is
equal to [***]. In any event, the Advance shall not exceed [***]
percent [***] in the aggregate of the principal amount of such
Mortgage Loans purchased during the preceding month.
Advance Settlement Sheet: A statement provided by Lender to Borrower,
and signed by Borrower, on the first Business Day of a calendar month,
setting forth, for the preceding calendar month, the Mortgage Loans
sold by Borrower to Lender, the current interest rate, and the amount
of the Advances made to date, including the Advance to be made on that
date. The Borrower shall execute and telecopy the Advance Settlement
Sheet before the Lender is obligated to make an Advance pursuant to
Section 2.1 hereof on that date. The original executed Advance
Settlement Sheet shall be sent to Lender by overnight mail.
Agreement: This Loan and Offset Agreement, including all exhibits and
schedules attached and incorporated by reference herein or delivered
pursuant hereto, and as the same may be amended and supplemented from
time to time.
<PAGE> 2
As-Earned Settlement Sheet: A statement provided by Lender to
Borrower, on the fifteenth day of a calendar month setting forth, for
the preceding calendar month, the Mortgage Loans sold by Borrower to
Lender, the anticipated premiums "as-earned" under the Premium
Agreement for the Mortgage Loans purchased by Lender month to date,
losses month to date, the Advances made month to date, the principal
and interest payments made month to date, the principal and interest
payments that will be made from the Lender's Payment Obligation, and
the amount of the Lender's Payment Obligation that will be paid to
Borrower by Lender.
Borrower's Note: The promissory note(s) of Borrower in the form set
forth in Exhibit A hereto.
Business Day: Any day that is not a Saturday, Sunday or other day on
which commercial banking institutions in the City of New York are
authorized or obligated by law to be closed.
Closing Date: The first Business Day of a calendar month on which
Lender will make an Advance.
Commitment Penalty: As set forth in Section 4 herein and in any WAC
Forward Commitment Agreement signed by Borrower and Lender.
Essential Mortgage File Documents: As to each Mortgage Loan, the
original of the Note, endorsed in blank, a true and certified copy of
the Mortgage, an original executable assignment of Mortgage, title
insurance policy including endorsements or "marked-up" title
commitment, Related Assets and the additional documents as described
in the Premium Agreement incorporated herein by reference.
Event of Default: Any event of default set forth in Section 7.1
hereof.
Forward Commitment: Borrower's agreement, as set forth in Section 4
hereof, to sell Mortgage Loans to Lender.
Forward Commitment Settlement Date: The first Business Day following
Lender's agreement to purchase not less than $1,000,000 of Mortgage
Loans.
Interest Repayment Date: The 15th day of the calendar month following
the month in which there is a Closing Date and continuing thereafter
on the same day of each month until paid in full.
Lender Payment Obligation: The amounts owed by Lender to Borrower
pursuant to Section 5.(i) of the Premium Agreement, with respect to
the Mortgage Loans sold the Lender under the respective WAC Forward
Commitment Agreement(s). For purposes of calculating the Lender
Payment Obligation, the calculations contained in Exhibits C and D of
the Premium Agreement shall be used. The Lender Payment Obligation
will be affected from time to time, by prepayment rates and
delinquency rates of the Mortgage Loans, and therefore for purposes of
valuing the Lender Payment Obligation from time to time, the Lender's
absolute discretion shall control so long as it is made in good faith.
LIBOR: The rate of interest is the one (1) month London Interbank
Offered Rate as published in The Wall Street Journal.
Maximum Advance Amount: The outstanding amount of Advances provided
to Borrower hereunder which shall not exceed [***] percent (***) of
the principal amount of Mortgage Loans sold to Lender under the
Forward Commitment, not to exceed $[***] in the aggregate.
Mortgage. The Note, bond, deed of trust, Mortgage, mortgage warranty,
extension agreement, assumption of indebtedness, assignment and any
other documents constituting the basic instruments for real estate
security on the real property owned by the mortgagor in the state in
which the subject property is located.
2
<PAGE> 3
Mortgage Loans: Fixed rate, first or second lien, one-to-four family,
performing loans and the Note, the related Mortgage and the Related
Assets which are collectively identified as the Mortgage Loans.
Note: The original Note or bond or other evidence of indebtedness
evidencing the indebtedness of the Mortgage under the Mortgage Loan.
Par WAC: The average of the three and five year U.S. Treasury (four
year interpolated) plus [***] as of each Forward Commitment Settlement
Date.
Principal Repayment Date: The 15th day of the calendar month
following the month in which a WAC Forward Commitment Agreement
expires and continuing thereafter on the same day of each month until
paid in full.
Related Assets: Any and all documents, instruments, collateral
agreements and assignments and endorsements for all documents,
instruments and collateral agreements, referred to in the Notes and/or
mortgages or related thereto, including, without limitation, current
insurance policies (private mortgage insurance, if applicable; flood
insurance, if applicable; hazard insurance; title insurance and other
applicable insurance policies) covering the Subject Property or
relating to the Notes and all files, books, papers, ledger cards,
reports and records including, without limitation, loan applications,
Borrower financial statements, separate assignment of rents, if any,
credit reports and appraisals, relating to the Loans. In all cases,
the Related Assets shall be the original documents.
Settlement Date: Each date of repayment of an Advance to Lender by
Borrower pursuant to this Agreement; provided however, the last
Settlement Date shall be no later than thirty-six (36) months from the
date of the last Advance.
Term: This Agreement shall have an initial term of twelve (12)
months; which initial term may be renewed for an additional period of
time as agreed in writing between Lender and Borrower.
Underwriting Guidelines of Borrower: Borrower's Underwriting
Guidelines, which are attached as Exhibit B to the Premium Agreement,
as may be amended from time to time with Lender's prior written
approval, which are also incorporated herein by reference.
WAC Forward Commitment Agreement: As set forth in Exhibit B hereto.
2. ADVANCES
2.1 Subject to the Borrower's reimbursement obligations set forth
in Section 6 hereof, and subject to receipt by telecopy of the Advance
Settlement Sheet executed by Borrower, Lender hereby agrees to make Advances to
Borrower on the first business day of each calendar month, and Borrower hereby
agrees to borrow Advances from Lender, in accordance with the terms of the
Borrower's Note and this Agreement; provided, however, that the outstanding
amount of Advances provided to Borrower hereunder shall not exceed the Maximum
Advance Amount except as set forth in Section 2.3 hereof.
2.2 Lender shall make Advances to Borrower on each Closing Date.
All payments of Advances shall be made by wire transfer to immediately
available funds to the Borrower by 7 P.M. Central Time.
2.3 Subject to Borrower's continuing performance of its
obligations contained in this Agreement, and upon expiration of the initial
term hereof, Lender and Borrower may agree in a writing signed by both parties
to increase or decrease the Maximum Advance Amount for any renewal term agreed
to between Lender and Borrower. Any such increase or decrease agreed to by the
parties hereto shall be subject to the terms and conditions of this Agreement.
3
<PAGE> 4
3. CONDITIONS PRECEDENT TO ADVANCES.
The Lender's obligation to make Advances hereunder shall be subject to
the fulfillment of the following conditions precedent:
(a) Delivery of Borrower's Note. Borrower shall have delivered to
Lender Borrower's Note on the date of this Agreement.
(b) Premium as Earned. Borrower shall have furnished to Lender a
copy, certified by an appropriate officer of Borrower, of the
resolution of the Board of Directors of Borrower's authorizing the
execution and delivery of Borrower's Notes to Lender and borrowing of
Advances as herein provided for an the execution, delivery and
performance of this Agreement by Borrower.
(d) Representation and Warranties. The representations and
warranties contained in Section 5 hereof shall be true and correct as
of the date of this Agreement and on each Closing Date.
(e) Designation of Authorized Officers. The Borrower shall have
delivered to Lender an officer's certificate, attested to by the
Secretary of the Borrower stating the names and showing the facsimile
signatures of the officers of Borrower authorized to execute and
deliver this Agreement, Borrower's Note and any other instrument,
document or certificate executed in connection herewith.
(f) Legal Matters. All other instruments and legal and corporate
proceedings in connection with the transactions contemplated by this
Agreement shall be satisfactory in form and substance to Lender and
counsel to Lender and Borrower, and Lender shall have received copies
of all documents which it may have reasonably requested in connection
herewith.
4. FORWARD COMMITMENT.
4.1 Commitment Amount. Borrower hereby agrees to offer for sale
to Lender an aggregate principal amount of $125,000,000 ("Commitment Amount")
of Mortgage Loans within twelve (12) months ("Commitment Period") from the date
of this Agreement, subject to the terms and conditions contained in the Premium
Agreement. Borrower shall sign and provide to Lender the WAC Forward
Commitment Agreement each time Borrower offers to sell a portion of the
Commitment Amount to Lender hereunder which WAC Forward Commitment Agreement
shall meet the following minimum amounts for the time periods identified:
$10,000,000 for a 90 day period, $7,500,000 for a 60 day period, and $5,000,000
for a 30 day period. The Borrower's obligations under Section 4.1 and under
any WAC Forward Commitment Agreement shall terminate if the Lender refuses to
purchase from Borrower, an aggregate of [***] of Mortgage Loans that conform to
the Underwriting Guidelines of Borrower.
4.2 Closings. Borrower shall submit Mortgage Loans daily to
Lender. Lender shall have no obligation to purchase any Mortgage Loans and may
refuse to purchase any Mortgage Loan for any reason whatsoever. In the event
Lender chooses to purchase the Mortgage Loans, the settlement date(s) during
the Commitment Period shall be the Forward Commitment Settlement Date. Time is
of the essence. Lender and Borrower agree that the price paid for the Mortgage
Loans shall be the difference between the Note rate on the Mortgage Loans and
Par WAC as set forth in the WAC Forward Commitment Agreement for the Mortgage
Loans purchased on the related Forward Commitment Settlement Date. The premium
will be paid to Borrower "as earned" per the terms of the Premium Agreement as
modified hereby. Borrower shall not be eligible for any other bonus program
offered by Lender during the Commitment Period. The Note rate on any Mortgage
Loan sold to Lender shall not be less than the Par WAC.
4.3 Commitment Penalty. IF FOR ANY REASON BORROWER FAILS TO
DELIVER AT LEAST NINETY-FIVE PERCENT (95%) OF THE COMMITMENT AMOUNT TO LENDER
WITHIN THE COMMITMENT PERIOD, BORROWER SHALL BE OBLIGATED TO PAY TO LENDER,
WITHIN TEN (10) CALENDAR DAYS OF THE LAST DAY OF THE COMMITMENT PERIOD, A
COMMITMENT PENALTY,
4
<PAGE> 5
AS SET FORTH BELOW, SUCH SUM BEING AGREED BY BORROWER AND LENDER AS LIQUIDATED
DAMAGES. THE PARTIES AGREE THAT LENDER'S ACTUAL DAMAGES IN THE EVENT OF
BORROWER'S FAILURE TO DELIVER THE COMMITMENT AMOUNT, WOULD BE DIFFICULT TO
ASCERTAIN, AND THE COMMITMENT PENALTY IS REASONABLE AS LIQUIDATED DAMAGES.
THIS PROVISION SHALL NOT BE DEEMED TO LIMIT LENDER'S RIGHT TO OTHER REMEDIES
PROVIDED HEREIN OR IN THE AGREEMENT WITH RESPECT TO OTHER COVENANTS,
REPRESENTATIONS AND WARRANTIES OF BORROWER. THE COMMITMENT PENALTY SHALL BE
DETERMINED BASED UPON THE PERCENTAGE OF THE COMMITMENT THAT THE BORROWER
ACHIEVES. THE COMMITMENT PENALTY WILL BE CALCULATED BY ADDING THE FOLLOWING
COMMITMENT FEE TO THE PAR WAC FOR THE MORTGAGE LOANS THAT THE LENDER PURCHASED
AND THE COMMITMENT PENALTY WILL EQUAL THE DIFFERENCE BETWEEN THE ADJUSTED PRICE
FOR THE MORTGAGE LOANS AND THE PRICE THE LENDER ACTUALLY PAID.
COMMITMENT AMOUNT: COMMITMENT FEE:
0 -50.00% BASIS POINTS
50.01-75.00% BASIS POINTS
75.01-95.00% BASIS POINTS
Lender and Borrower agree that Borrower shall be given credit for purposes of
calculating the Commitment Amount, for the Mortgage Loans that conform to the
Underwriting Guidelines of Borrower that are offered by Borrower and are not
purchased by Lender.
5. REPRESENTATIONS AND WARRANTIES.
5.1 Representations and Warranties of the Borrower - General. It
is understood and agreed by Borrower and Lender that as a material inducement
to Lender to enter into this Agreement and make Advances, Borrower hereby
represents and warrants to Lender as follows:
(a) The Borrower is an organization as set forth in the
introductory paragraph of this Agreement and is duly organized,
validly existing and in good standing under the laws of the state of
its incorporation, and is duly qualified as a foreign corporation in
all jurisdictions wherein the character of the property owned or
leased or the nature of the business transacted by it makes
qualification as a foreign corporation necessary.
(b) The execution and delivery of the Agreement by Borrower and
the performance by Borrower of the obligations to be performed by it
hereunder have been duly authorized by all necessary corporation or
other similar action. Prior to the first Settlement Date, the
Borrower shall deliver to the Lender certified copies of the relevant
corporate or similar resolutions and a good standing certificate for
the state of its incorporation and, as requested by Lender, for each
state in which Borrower is registered to do business. It is within
Lender's discretion to periodically request good standing certificates
for all states in which Borrower is registered to do business.
(c) The execution and delivery of this Agreement by Borrower and
the performance by Borrower of the obligations to be performed by it
hereunder do not, and will not, violate any provision of any law,
rule, regulation, order, write, judgment, injunction, decree,
determination or award presently in effect having applicability to
Borrower or to the charter or bylaws of the Borrower. All parties
which have had any interest in the Mortgage Loans, whether as
mortgagee, assignee (other than Lender or assignee of Lender) or
pledgee are (or during the period in which they held and disposed of
such interest, were) in compliance with all applicable licensing
requirements of the federal, state and local governments wherein the
Subject Property is located.
(d) The execution and delivery of this Agreement by Borrower and
the performance by Borrower of the obligations to be performed by it
hereunder do not and will not result in a breach of or constitute a
5
<PAGE> 6
default under any indenture or loan or credit agreement or any other
agreement, lease or instrument to which Borrower is a party or by
which it or its properties may be bound or affected.
(e) This Agreement constitutes, when duly executed and delivered
by Borrower, a legal, valid and binding obligation of Borrower,
enforceable against Borrower according to its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or similar laws affecting creditors' rights
in general, including equitable remedies.
(f) There are no actions, suits or proceedings pending or, to the
knowledge of Borrower, threatened against or affecting Borrower or the
properties of Borrower before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or
foreign, which, if determined adversely to Borrower, would have a
material adverse effect on the financial condition, properties or
operations of Borrower. Any consent by Lender to make Advances
pursuant to this Agreement shall automatically terminate if: (i) a
decree or order of a court or agency supervisory authority having
jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of
assets and liabilities, bankruptcy proceeding or any similar
proceedings, or for winding up or liquidation of its affairs, shall
have been entered against Borrower and such decree or order shall have
remained in force undischarged or unstated for a period of 60 days; or
(ii) Borrower shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities, bankruptcy or similar
proceedings relating to Borrower or relating to all or substantially
all of its property; or (iii) Borrower shall admit in writing its
inability to pay its debts as they become due, file a petition to take
advantage of any applicable insolvency, reorganization or bankruptcy
statute, make an assignment for the benefit of its creditors, or
voluntarily suspend payments of its obligations.
5.2 Representations and Warranties of the Borrower as to Each
Loan. It is understood and agreed by Borrower and Lender that as a material
inducement to Lender to enter into this Agreement and make Advances, the
Borrower hereby reaffirms the representations and warranties in Section 9 of
the Premium Agreement to the Lender as of each Forward Commitment Settlement
Date with respect to each Mortgage Loan delivered to Lender.
5.3 Survival. To induce Lender to provide Advances, Borrower
makes the representations and warranties set forth herein, each and all of
which shall: (i) survive the execution and delivery of this Agreement and the
making of any Advance by Lender, (ii) inure to the benefit of Lender, and (iii)
be deemed to have been relied upon in making Advances hereunder by Lender
regardless in each case of any investigation of review Lender may have or shall
hereafter make.
6. REPAYMENT OF ADVANCES.
6.1 Repayment. Borrower shall repay Lender for the Advances made,
together with interest, as shown on the As- Earned Settlement Sheet. The
Lender may, at its absolute discretion, and from time to time, apply all or
part of the Lender Payment Obligation, toward the Borrower's obligations
hereunder. Each Advance will be fully paid within thirty-six (36) months of
the date of the Advance and this obligation shall survive the termination of
this Agreement and/or the Premium Agreement. The Lender shall establish from
time to time, the amount of the Borrower's monthly payment obligation based
upon the amount of the unpaid Lender Payment Obligation. Borrower shall have
the right to prepay the Advances, without penalty or premium, upon one week's
prior written notice to Lender. In addition, the Borrower shall have the right
at any time, and from time to time, to direct the Lender to offset the Lender
Payment Obligation against the amounts owned by Borrower hereunder.
6.2 Interest on Advances. Subject to Section 6.3 hereof, Borrower
shall pay to Lender on each Interest Repayment Date interest on all Advances
outstanding during the prior month at LIBOR for each day of the prior month
plus [***] basis points.
6.3 Failure to Repay Advances; Loan Balances.
6
<PAGE> 7
(a) In the event Borrower fails to pay the Lender any amount due
hereunder, the interest payable in accordance with Section 6.2 to
Lender on the amount of all such delinquent payments shall instead be
calculated at LIBOR, plus [***] basis points, for the period for which
interest is being calculated starting with the date of Lender's demand
to the date of repayment.
(b) If Lender determines that on a Principal Repayment Date and/or
an Interest Repayment Date the amounts due Lender exceed [***]
percent (***) of the amounts of the Lender Payment Obligation with
respect to the Mortgage Loans sold to Lender pursuant to a WAC Forward
Commitment Agreement (calculated by Lender in good faith and in its
absolute discretion) then Borrower shall reimburse Lender, within two
(2) days of Lender's demand, the excess.
6.4 Computation of Interest. Interest on Advances shall be
computed on the basis of a 360-day year and the actual number of days elapsed
in the period during which it accrues. In computing the interest on any
Advances, the date of making the Advance shall be included and the date of
repayment shall be excluded; provided, that if an Advance is repaid on the same
day on which it is made, one day's interest shall be paid on the Advance.
6.5 Lender's Payment Obligation. The Borrower agrees that the
Lender can satisfy the Lender's Payment Obligation, with the written consent of
the Borrower, once the Lender's Payment Obligation is reduced to [***] percent
(***) or less than its highest levels. The Lender shall provide the Borrower
with notice of its election pursuant to the provisions of this section and
shall provide the Borrower with a description of the present value of the
obligation taking anticipated prepayment speeds and delinquency ratios into
account. If the Borrower and the Lender can arrive at a mutually acceptable
understanding with respect to these terms, the Lender can discharge the
Lender's Payment Obligation by paying the Borrower the amount upon which the
parties agree.
7. EVENTS OF DEFAULT.
7.1 Event of Default. The occurrence and continuation of any of
the following conditions or events shall constitute an "Event of Default"
hereunder:
(a) Failure to Make Payments When Due. Failure by Borrower to pay
any amount due hereunder when due and the continuance of the default
for five Business days following the giving of notice thereof by
Lender; or
(b) Default in Other Agreements. Failure of Borrower to pay or
any default in the payment of any principal or of interest on any
other indebtedness or in the payment of any contingent obligation
beyond any period of grace provided or breach or default with respect
to any other material term or any evidence of any other indebtedness
or of any loan agreement, mortgage, indenture or other agreement
relating thereto, if the effect of such failure, default or breach is
to cause, or to permit the holder or holders of that indebtedness (or
a trustee on behalf of such holder or holders) to cause, indebtedness
of Borrower in the aggregate amount of [***] or more to become or be
declared due prior to its stated maturity (upon the giving or
receiving of notice, lapse of time, both, or otherwise); or
(c) Breach of Warranty. Any of Borrower's representations or
warranties made herein or in any statement or certificate at any time
given by Borrower in writing pursuant hereto or in connection herewith
shall be false in any material respect on the date as of which made
and the representation or warranty shall remain false for five days
following the giving of notice thereof by the Lender, provided,
however, that any representation or warranty regarding a Mortgage Loan
that is contained in the Premium Agreement that is subject to a
buy-back shall ot be considered a breach of a warranty from purposes
of this Agreement, if the Borrower satisfies its buy-back obligation
in accordance with the terms of the Premium Agreement, or
(d) Other Defaults. Borrower shall default in the performance of
or compliance with any term contained in this Agreement, other than
those referred to in Paragraphs (a) or (c) above, and any WAC
7
<PAGE> 8
Forward Commitment Agreement, and such default shall not have been
remedied or waived within fifteen days after receipt by Borrower of
notice from Lender, which notice shall be sent to Borrower of such
default; or
(e) Involuntary Bankruptcy; Appointment of Receiver; etc. Either,
(I) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of Borrower in an involuntary case
under applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, which decree or order is not stayed; or (ii) any
other similar relief shall be granted under any applicable federal or
state law, or a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, trustee,
custodian or other officer having similar powers over Borrower or over
all or a substantial part of its property, or the issuance of a
warrant of attachment, execution or similar process against any
substantial part of the property of Borrower, and the continuance of
any such events in clause (ii) for 45 days unless dismissed, bonded or
discharged; or
(f) Voluntary Bankruptcy; Appointment of Receiver, etc. Borrower
shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or shall
consent to the appointment of or taking possession by a receiver,
trustee or other custodian for all or a substantial part of its
property; the making by Borrower of any assignment for the benefit of
creditors; or the inability or failure of Borrower, or the admission
of Borrower in writing of its inability to pay its debts as such debts
become due, or the Board of Directors of Borrower (or any committee
thereof) adopts any resolution or otherwise authorizes action to
approve any the foregoing; or
(g) Judgments and Attachments. Any money judgment, writ or
warrant of attachment, or similar process involving in any case an
amount in excess of $[***] shall be entered or filed against Borrower
or its assets and shall remain undischarged, unvacated, unbonded or
unstayed for a period of 30 days or in any event later than five days
prior to the date of any proposed sale thereunder; or
(h) Dissolution; Liquidation. Any order, judgment or decree shall
be entered against Borrower decreeing its dissolution or liquidation
and such order shall remain undischarged or unstayed for a period in
excess of [***] days.
7.2 Remedies.
(a) Upon the occurrence and continuation of any Event of Default,
the unpaid principal amount of and accrued interest on any Borrower's
Note from Borrower to Lender, together with all other sums due
hereunder, shall automatically become due and payable, without
presentment, demand or other requirements of any kind, all of which
are hereby expressly waived by Borrower, and the obligation of Lender
to make Advances shall thereupon terminate.
(b) Upon the occurrence of any Event of Default, Lender may
exercise any and all rights and remedies of Lender as it shall deem
appropriate at law, in equity, or otherwise.
(c) All remedies are cumulative. Any failure on the part of
Lender to exercise or any delay in exercising any right hereunder
shall not operate as a waiver thereof, nor shall any single or partial
exercise by Lender of any right hereunder preclude any other exercise
thereof or the exercise of any other right.
7.3 Application of Proceeds. Any money collected by Lender
pursuant to this Agreement (whether upon voluntary payment, prepayment, offset
or otherwise) shall be promptly applied as follows unless otherwise required by
provisions of applicable law:
(a) First, to the payment of all expenses incurred by Lender under
this Agreement in enforcing its rights hereunder, including all costs
and expenses of collection, attorneys' fees, court costs and
foreclosure expenses.
8
<PAGE> 9
(b) Next, to the payment of accrued interest on Advances to the
extent amounts are due thereon.
(c) Next, to the payment of all principal on Advances to the
extent amounts are due thereon.
(d) Next, to Borrower.
8. INDEMNIFICATION.
8.1 (a) Borrower hereby agrees to protect, indemnify, defend
and hold harmless Lender, its subsidiaries and affiliates and assignees, and
all of their agents, employees, officers and directors, (collectively the
"Lender Indemnitees") from and against any and, all liabilities, costs,
expenses, judgments, damages, losses, claims, demands, offsets, defenses,
counterclaims, actions, or proceedings, by whomsoever asserted, arising from,
connected with, or resulting from any breach by Borrower of any covenant,
representation, or warranty contained herein or of any other term of this
Agreement or any act of Borrower or omission by Borrower where Borrower has a
duty to act; provided, however, that Borrower's obligation to indemnify
pursuant to this section shall not extend to any liability arising from the
gross negligence or willful misconduct of any Lender Indemnitee.
(b) If any legal proceeding shall be instituted, or any
claim asserted in respect of which a Lender Indemnitee may seek indemnification
from Borrower, the Borrower shall have the right, at its option and at its own
expense, to be represented by counsel of its choice and to defend against,
negotiate, settle, or otherwise deal with such proceeding or claim.
8.2 (a) Lender hereby agrees to protect, indemnify, defend
and hold harmless Borrower, its subsidiaries and affiliates and assignees, and
all of their agents, employees, officers and directors, (collectively the
"Borrower Indemnitees") from and against any and, all liabilities, costs,
expenses, judgments, damages, losses, claims, demands, offsets, defenses,
counterclaims, actions, or proceedings, by whomsoever asserted, arising from,
connected with, or resulting from any breach by Lender of any covenant,
representation, or warranty contained herein or of any other term of this
Agreement or any act of Lender or omission by Lender where Lender has a duty to
act; provided, however, that Lender's obligation to indemnify pursuant to this
section shall not extend to any liability arising from the negligence or
willful misconduct of any Borrower Indemnitee.
(b) If any legal proceeding shall be instituted, or any
claim asserted in respect of which a Borrower Indemnitee may seek
indemnification from Lender, the Lender shall have the right, at its option and
at its own expense, to be represented by counsel of its choice and to defend
against, negotiate, settle, or otherwise deal with such proceeding or claim.
9. NOTICES.
All notices or other communications provided for herein shall be in
writing and shall be deemed to have been given or made when sent by overnight
mail or certified mail, return receipt requested, postage prepaid, or, in the
case of telegraphic notice, when delivered to the telegraph company, addressed
as set forth below or to such other address as may be hereafter designated in
writing by the respected parties hereto. In addition, any notices or other
communications may be accomplished by a facsimile transmission at the fax
numbers set forth below. Any facsimile transmissions shall promptly be
confirmed to the other party in writing and by mail in accordance with the
provisions above.
Lender: [***]
[***]
[***]
[***]
Fax: [***]
9
<PAGE> 10
Borrower: Credit Depot Corporation
Wachovia Center, Suite 700
Gainesville, GA 30501
Attention: Gerald F. Sullivan, Sr.
Fax: (770) 531-0228
10. RIGHTS OFFSET.
Lender is hereby granted the absolute right to offset all sums owed by
Lender to Borrower (including the Lender Payment Obligations) against the
amounts owed by Borrower to Lender under the Borrower's Note or under this
Agreement. This right of offset shall be absolute and unconditional and may be
exercised at any time and from time to time by Lender. The Lender need not
provide Borrower with any notice of its election to offset and Lender's rights
hereunder shall not be restricted or conditioned. Borrower acknowledges that
Lender is granted this right of offset in lieu of a lien on the Lender Payment
Obligations.
11. ACCESS TO BORROWER DOCUMENTS AND INFORMATION.
Borrower shall deliver to Lender its annual (audited) and quarterly
(unaudited) Financial Statements within five (5) days of their availability.
Borrower shall provide to Lender and its appointed agents access to
documentation and information regarding the Collateral and the Borrower as
Lender may request, including, but not limited to, the Mortgage Loans and any
and all accounting records and financial statements of Borrower, such access
being afforded without charge upon reasonable request and during normal
business hours at the offices of the Borrower designated by it.
12. TERMINATION.
(a) Lender may terminate its obligations under this Agreement:
(i) upon completion of the initial Term, or any renewal Term agreed to by the
parties, and (ii) immediately upon written notice delivered to Borrower in the
event of any breach of any of the representations, warranties, covenants or
agreements of Borrower set forth in this Agreement or any other agreements, if
any, between Borrower and Lender.
(b) In the event of termination, all outstanding Advances under
the Borrower's Note and this Agreement shall become immediately due and
payable.
13. MISCELLANEOUS PROVISIONS.
13.1 Representation of Servicer and Lender. If any of the Mortgage
Loans are presently serviced by any third party, Borrower shall obtain and
deliver on the Closing Date a representation and warranty to Lender from each
such servicer that, as of the Closing Date, there are not taxes, ground rents,
water charges, sewer rents, assessments payable in future installments, or
other outstanding charges affecting the lien of any Mortgage or Mortgaged
Property, which amounts are being escrowed and which are due and payable. If
requested by the Lender, each such servicer shall submit proof of the foregoing
representation and warranty.
13.2 Costs and Expenses. Except as explicitly provided herein,
Borrower and Lender shall each fulfill its obligations pursuant hereto at its
own cost and expense.
13.3 Agency; Joint Venture. Neither this Agreement nor any action
taken pursuant hereto shall make either party an agent or representative of the
other or be deemed to create a joint venture between Borrower and Lender.
13.4 Complete Agreement; Modification; Sale or Assignment. This
Agreement constitutes the complete agreement between Borrower and Lender with
respect to the subject matter hereof and may not be
10
<PAGE> 11
modified, altered, or amended except by a writing signed by Borrower and
Lender. Neither party hereto may sell, assign, or transfer any of its rights
or obligations pursuant hereto except with the written consent of the other
party, except that either party may assign this Agreement to an affiliate.
Nothing herein shall in any way limit Lender's right to assign the Borrower's
Note to any other person or entity. If there is any inconsistency between the
terms hereof and the terms contained in the Premium Agreement, the terms of
this Agreement shall control and the Premium Agreement shall be modified
accordingly.
13.5 No Waiver. No undertaking, agreement, covenant,
representation or warranty of Borrower contained herein shall be deemed to have
been waived by Lender, unless such waiver is by an instrument in writing signed
by Lender. Any such waiver by Lender shall not be deemed to be waiver of any
other undertaking, agreement, covenant, representation or warranty. Lender's
failure, at any time, to require strict performance of any provision hereof
shall not waive, affect or diminish any right of Lender thereafter to demand
strict compliance therewith or performance thereof.
13.6 Parties. This Agreement shall be binding upon, and inure to
the benefit of, the successors and permitted assigns of Borrower and Lender.
13.7 Governing Law. This Agreement shall, in all respects, be
governed by, and construed in accordance with, the laws of the State of New
York applicable to contracts made and performed in such state without regard to
the conflict of laws provisions of such jurisdiction and the laws of the United
States of America.
13.8 Severability; Section Headings. Any invalidity of any
provision of Borrower's Note or this Agreement shall not affect the validity of
any other provision hereof. The section headings contained herein shall be
without substantive meaning and shall not be deemed to be a part of this
Agreement.
13.9 Construction. Wherever from the context it appears
appropriate, each term stated in either the singular or plural shall include
the singular and plural, and pronouns stated in the masculine, feminine, or
neuter gender shall include the masculine, feminine, and the neuter. The words
"herein," "hereof," "hereto," "hereby," and other words of similar import shall
be deemed to refer to this Agreement as a whole and not to any particular
section, subsection, or clause of this Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the parties intending to be legally bound hereby, as of the date
first written above.
BY: [***]
Name: [***]
Title: [***]
CREDIT DEPOT CORPORATION
BY: [***]
Name: [***]
Title: [***]
11
<PAGE> 12
EXHIBIT A
(Form of Promissory Note)
$6,250,000 November 12, 1996
FOR VALUE RECEIVED, Credit Depot Corporation, a Georgia corporation, having
its principal place of business at Wachovia Center, Suite 700, Gainesville, GA
30501 ("Borrower"), hereby promises to pay to the order of [***] ("Payee") on
or before November 12, 2000, the lesser of the principal sum of six million,
two hundred fifty thousand and no/100 Dollars ($6,250,000), or the unpaid
principal amount of all Advances made by Payee to Borrower under the terms of
that certain Forward Commitment Loan and Offset Agreement dated as of November
12, 1996, between Borrower and Payee (the "Agreement"), together with interest
on the unpaid balance thereof from the date hereof until paid at the rates and
at the times which shall be determined in accordance with the provisions of the
Agreement.
This Note is issued pursuant to and entitled to the benefits of the Agreement
to which reference is hereby made for a more complete statement of the terms
and conditions under which the Advances evidenced hereby are made and are to be
repaid. Capitalized terms used herein without definition shall have the
meanings set forth in the Agreement.
All payments of principal and interest in respect of this Note shall be made
in lawful money of the United States of American in immediately available funds
at the office of Payee located at [***] or at such other place as shall be
designated in writing for such purpose in accordance with the terms of the
Agreement. Until notified in writing of the transfer of this Note, Borrower
shall be entitled to deem Payee or such person who has been so identified by
the transferor in writing to Borrower as the holder of this Note, as the owner
and holder of this Note. Each of Payee and any subsequent holder of this Note
agrees that before disposing of this Note or any part hereof it will make a
notation hereon of all principal payments previously made hereunder and of the
date to which interest hereon has been paid; provided, however, that the
failure to make a notation of any payment made on this Note shall not limit or
otherwise affect the obligation of Borrower hereunder with respect to payments
of principal of or interest on this Note.
Whenever any payment on this Note shall be stated to be due on a day which is
not a Business Day, such payment shall be made on the next succeeding Business
Day and such extension of time shall be included in the computation of the
payment of interest on this Note.
This Note has been executed and delivered by Borrower in accordance with the
terms of the Agreement and is entitled to the benefits of the offset rights
created by the Agreement and is otherwise governed thereby.
The Agreement and this Note shall be governed by, and shall be construed and
enforced in accordance with, the laws of the State of New York.
Upon occurrence of an Event of Default, the unpaid balance of the principal
amount of this Note may become, or may be declared to be, due and payable in
the manner, upon the conditions and with the effect provided in the Agreement.
The terms of this Note are subject to amendment only in the manner provided
in the Agreement.
No reference herein to the Agreement and no provision of this Note or the
Agreement shall alter or impair the obligation of Borrower, which is absolute
and unconditional, to pay the principal of and interest on this Note at the
place, at the respective times, and in the currency herein prescribed.
Borrower promises to pay all costs and expenses, including reasonable
attorneys' fees, incurred in the collection and enforcement of this Note.
Borrower and endorsers of this Note hereby consent to renewals and extensions
of time.
Credit Depot Corporation
By:_____________________________
Name:
Title:
<PAGE> 13
EXHIBIT B
November 12, 1996
CREDIT DEPOT CORPORATION (CDC)
WAC FORWARD COMMITMENT AGREEMENT
Reference is made to that Purchase and Sale Agreement among [***] as Sponsor,
Norwest Bank Minnesota, National Association as Trustee, and Credit Depot
Corporation (CDC) as Seller ("Premium Agreement") dated March 26, 1996, and the
Forward Commitment Loan and Offset Agreement dated as of November 12, 1996,
between Sponsor as Lender and Seller as Borrower ("Agreement"). Seller hereby
agrees to offer for sale to Sponsor an aggregate principal amount of
$__________ of the Commitment Amount of Loans within ____ DAYS from the date
hereof, subject to the terms and conditions contained in the Premium Agreement
and the Agreement, which terms and conditions are incorporated herein. All
capitalized terms not otherwise defined herein shall have the meanings set
forth in either the Premium Agreement or the Agreement.
1. Loans. the Loans must be fixed rate, first or second lien, one-to-four
family, performing Loans complying with the following: (A) MAXIMUM OF [***] OF
LOAN VOLUME CAN HAVE AN LTV OF 85.01% TO 90%. (B) MAXIMUM OF [***] OF LOAN
VOLUME CAN BE NIQ OR ALT DOCUMENTATION. (C) MAXIMUM OF [***] OF LOAN VOLUME CAN
BE DOUBLEWIDE. Seller agrees to submit to Sponsor all Loans originated by
Seller during the Commitment Period. In the event of any conflict between this
letter, the Premium Agreement, and the Agreement the terms of this letter shall
be controlling.
2. Closings. Seller shall submit Loans daily to Sponsor. Sponsor shall have
no obligation to purchase any Loan(s) and may refuse to purchase any Loan for
any reason whatsoever. In the event Sponsor chooses to purchase the Loans, the
Loans will be pooled by Sponsor into amounts of not less than $1,000,000
(principal amount) of Loans (each a "Pool"). The settlement date will be the
first business day following Sponsor's agreement to purchase a Pool (each a
"Forward Commitment Settlement Date"). Time is of the essence. Sponsor and
Seller agree that the price paid for the Loans shall be determined from a WCA
PRICE OF ____% on the Loans purchased on the related Forward Commitment
Settlement Date. The premium will be paid to Seller as earned per the terms of
the Premium Agreement. Seller shall not be eligible for any other bonus
program offered by Sponsor during the Commitment Period. The note rate on any
loan sold to Sponsor shall not be less than the above stated WAC price.
3. Commitment Penalty. IF FOR ANY REASON SELLER FAILS TO DELIVER AT LEAST
NINETY-FIVE PERCENT (95%) OF THE COMMITMENT AMOUNT TO SPONSOR WITHIN THE
COMMITMENT PERIOD, SELLER SHALL BE OBLIGATED TO PAY TO SPONSOR WITHIN TEN (10)
CALENDAR DAYS OF THE FINAL COMMITMENT PERIOD SETTLEMENT DATE A COMMITMENT FEE
BASED UPON THE LENGTH OF THE COMMITMENT PERIOD, SUCH SUM BEING AGREED BY SELLER
AND SPONSOR AS LIQUIDATED DAMAGES. THE PARTIES AGREE THAT SPONSOR'S ACTUAL
DAMAGES IN THE EVENT OF SELLER'S FAILURE TO DELIVER THE COMMITMENT AMOUNT,
WOULD BE DIFFICULT TO ASCERTAIN, AND THE COMMITMENT FEE IS REASONABLE AS
LIQUIDATED DAMAGES. THIS PROVISION SHALL NOT BE DEEMED TO LIMIT SPONSOR'S
RIGHT TO OTHER REMEDIES PROVIDED HEREIN OR IN THE AGREEMENT WITH RESPECT TO
OTHER COVENANTS, REPRESENTATIONS AND WARRANTIES OF SELLER.
<PAGE> 14
Commitment Penalties:
30 day period [***] (of original commitment amount)
45 day period [***] (of original commitment amount)
60 day period [***] (of original commitment amount)
75 day period [***] (of original commitment amount)
90 day period [***] (of original commitment amount)
4. Confidentiality. Seller and Sponsor agree that, without the prior written
consent of the other party, that neither it nor its directors, officers,
employees, affiliates, or agents will knowingly disclose to any individual or
entity the terms, conditions, or other facts of this letter, including the
status thereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the day and year first above written.
[***] as Sponsor
By:__________________________
[***]
Authorized Signer
CREDIT DEPOT CORPORATION as Seller
By:__________________________________
Name:
Title:
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JUN-30-1997
<PERIOD-START> JUL-01-1996
<PERIOD-END> DEC-31-1996
<CASH> 1,110,447
<SECURITIES> 0
<RECEIVABLES> 4,887,663
<ALLOWANCES> 170,383
<INVENTORY> 0
<CURRENT-ASSETS> 8,106,969
<PP&E> 537,730
<DEPRECIATION> 0
<TOTAL-ASSETS> 13,576,222
<CURRENT-LIABILITIES> 461,791
<BONDS> 11,657,348
0
315
<COMMON> 3,717
<OTHER-SE> 1,453,051
<TOTAL-LIABILITY-AND-EQUITY> 13,576,222
<SALES> 0
<TOTAL-REVENUES> 3,578,130
<CGS> 0
<TOTAL-COSTS> 2,954,967
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 65,000
<INTEREST-EXPENSE> 708,408
<INCOME-PRETAX> (150,245)
<INCOME-TAX> 0
<INCOME-CONTINUING> (150,245)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (150,245)
<EPS-PRIMARY> (0.12)
<EPS-DILUTED> (0.12)
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