CREDIT AND SECURITY AGREEMENT
(INSURANCE PREMIUM FINANCING)
THIS AGREEMENT is made this 15th day of November 1996, among SAFECO CREDIT
COMPANY, INC., a Washington corporation ("SAFECO"), AUTOMATED INSTALLMENT
SYSTEMS, INC., a Missouri corporation ("AIS"), and Birch Financial, Inc., a
California corporation ("Borrower").
Borrower is an insurance premium finance company licensed to engage in such
business under the laws of the State of California. Borrower has entered or
intends to enter into a Computer Services and Consulting Agreement with AIS
(the "Services Agreement") pursuant to which AIS will provide Borrower with
consulting services and computer processing incident to the operation of a
premium finance company.
Borrower wishes to obtain financing from SAFECO for Borrower's premium finance
business, and SAFECO is willing to loan funds to Borrower for such purpose,
subject to the terms and conditions set forth in this Agreement.
AIS is willing to provide various services to SAFECO as described in this
Agreement (the "Administrative Services") to facilitate SAFECO's
administration of its loan to Borrower.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
AMOUNTS AND TERMS OF THE ADVANCES
1.1 The Advances.
(A) SAFECO shall, on the terms stated in this Agreement, make
advances (individually, an "Advance" and collectively, the "Advances") to
Borrower from time to time during the term of this Agreement in an aggregate
amount not to exceed at any time the lesser of (i) the Borrowing Base, as
defined in paragraph (B) below, (ii) One Million Five Hundred Thousand and
00/100ths Dollars ($1,500,000.00) (the "Commitment"), and (iii) the maximum
amount SAFECO is permitted to lend to Borrower under any applicable law, rule,
or regulation. Within the foregoing limits, Borrower may borrow, repay and
reborrow under this Agreement, absent the occurrence of any Event of Default
(as defined in Section 6.1 below).
(B) The "Borrowing Base" shall be an amount equal to 90% of
Borrower's accounts receivable relating to premium finance agreements entered
into by Borrower in the regular and ordinary course of its business ("Premium
Finance Agreements"), excluding
(i) accounts receivable which are past due or otherwise in default;
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(ii) accounts receivable for canceled policy unearned premiums as to
which 90 days (or if lesser, the maximum period allowed by state statute for
the return of unearned premiums) have expired since cancellation of the
insurance policy was ordered;
(iii) accounts receivable relating to policies issued by underwriters
deemed unacceptable by SAFECO in its sole and absolute discretion
("Unacceptable Policies"), as communicated in writing by SAFECO to AIS and
Borrower from time to time;
(iv) accounts receivable relating to policies purchased by insureds
who are subject to the jurisdiction of a bankruptcy court or are otherwise
subject to court supervision, unless SAFECO has received a court order, in
Form and substance satisfactory to SAFECO, authorizing the financing of such
policies and the granting by the insured of security therefor;
(v) accounts receivable relating to policies that may not be canceled
by Borrower or SAFECO under normal short or pro rata tables;
(vi) accounts receivable relating to insurance policies for which a
down payment sufficient to cover minimum earned premiums has not been received
by the Agency or Borrower;
(vii) accounts receivable relating to policies issued by an insurer
that, when aggregated with other accounts receivable relating to policies
issued by that insurer and in which SAFECO has been granted a security
interest (whether by Borrower or any other person), would cause such aggregate
amount to exceed predetermined credit limits established by SAFECO and
communicated to AIS from time to time;
(viii) accounts receivable relating to policy or loan origination fees
or similar charges commonly referred to as "broker fees";
(ix) accounts receivable constituting unearned interest; and
(x) such other accounts receivables as SAFECO shall, in its sole and
absolute discretion, deem unacceptable.
(C) All computations of the Borrowing Base shall be made by AIS in
accordance with written instructions provided by SAFECO, but must be reviewed
and approved by SAFECO in accordance with the guidelines stated in paragraph
(B) above. Such computations, absent manifest error, shall be conclusive and
binding upon Borrower.
(D) Upon request, AIS shall provide SAFECO with a Borrowing Base
Certificate by the next Business Day following SAFECO's request. If the
principal amount of Advances outstanding at any time exceeds the Borrowing
Base (as shown by any Borrowing Base Certificate and regardless of whether
Borrower is requesting an additional Advance), then Borrower, without demand
by SAFECO, shall immediately repay the Note to the extent required to reduce
the outstanding balance on such Note to the amount of the Borrowing Base.
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(E) The obligation of SAFECO to make Advances shall commence upon the
execution of this Agreement by all parties and shall continue for a period of
one year from such date unless earlier terminated by SAFECO giving Borrower 15
days' advance written notice.
1.2 Borrower's Bank Accounts. Borrower shall maintain two bank accounts
at a financial institution reasonably acceptable to SAFECO and AIS.
(A) One bank account (the "Deposit Account") shall be designated for
the deposit of all payments on Premium Finance Agreements included in the
Borrowing Base at any time and any returns of unearned premiums with respect
to canceled insurance policies subject to such Agreements. SAFECO shall be the
only person authorized to make withdrawals from the Deposit Account.
(B) The other bank account (the "Operating Account") shall be
Borrower's regular operating account. Advances under this Agreement will be
deposited into the Operating Account. Borrower's operating expenses, including
payments to the Agency or insurance companies on account of financed premiums,
will be paid out of the Operating Account. All checks and drafts drawn on the
Operating Account will be prepared by AIS and sent to Borrower for
endorsement, except that drafts payable to insurance carriers may be drawn on
such account by the principal of the insurance agency affiliated with
Borrower, provided such drafts are approved for payment by AIS.
1.3 Making the Advances. Advances shall be requested and made in the
following manner:
(A) Each time that Borrower desires an Advance, AIS shall send to
Borrower via SAFECO's proprietary electronic mail system ("Email") (i) a
request for an Advance in a stated amount and (ii) a Borrowing Base
Certificate (defined below). Borrower shall review the request for an Advance
and the Borrowing Base Certificate and, if approved by Borrower, forward them
to SAFECO by Email.
(B) No later than the next Business Day following SAFECO's receipt
of a request for an Advance and Borrowing Base Certificate in the manner
described above, and provided the conditions for an Advance stated in Section
2.2 are satisfied, SAFECO shall originate an electronic funds transfer ("EFT")
directing funds to be deposited in Borrower's Operating Account. Funds
transferred through EFT will normally be available to Borrower the next
Business Day following SAFECO's origination of the EFT.
(C) SAFECO shall be entitled to rely on any request for an Advance
originated by AIS and forwarded to SAFECO by Borrower via SAFECO's proprietary
Email system, as described in paragraph (A) above, and shall not bear any
responsibility for any person's unauthorized access to Email or
misappropriation of security passwords
1.4 Interest and Repayment. Borrower shall repay, together with
interest, the aggregate unpaid principal amount of all Advances in accordance
with the Note. The Note shall be payable on demand, and no covenants or Events
of Default specified in this Agreement shall be construed
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to alter the character of the Note as a demand instrument. All computations of
interest under the Note shall be made by SAFECO on the basis of a year of 365
days for the actual number of days (including the first day but excluding the
last day) elapsed. Borrower may prepay the Note in whole or in part with
interest accrued to the date of such prepayment on the amount prepaid.
1.5 Payments and Computations. Each payment under any Loan Document shall
be received by SAFECO not later than 12:00 noon Seattle time on the day when
due in lawful money (same day funds) of the United States of America at its
address referred to in Section 8.2. Whenever any payment under any Loan
Document is due on a date other than a Business Day (as defined below), such
payment may be made on the next succeeding Business Day, and such extension of
time shall in that case be included in the computation of interest.
1.6 Sweep of Deposit Account. The balance in the Deposit Account in
excess of [$2,000] shall be withdrawn by SAFECO on a daily basis under a
"sweep" agreement with the depository bank, subject to any applicable minimum
sweep amount established by the depository bank. All funds withdrawn from the
Deposit Account under this Section 1.6 shall be applied to pay any expenses or
other amounts owed to SAFECO under Section 6.5 or Section 8.4 below and then
to reduce the amount owing to SAFECO under the Note, first to accrued interest
and then to principal.
1.7 Account Activity Report. SAFECO shall provide Borrower with
proprietary software to permit Borrower to access its account history within
SAFECO's system. The terms and conditions governing SAFECO's limited license
of software to Borrower for such purpose and of SAFECO's limited license of
its proprietary Email system to Borrower and AIS for purposes of submitting
requests for Advances and Borrowing Base Certificates shall be subject to a
separate Systems Access & Use Agreement substantially in the form of Exhibit
A.
1.8 Definitions.
(A) "Agency" means any insurance agency affiliated with Borrower.
(B) A "Borrowing Base Certificate" means a certificate in the form
of Exhibit B or such other form as the parties may agree, prepared by AIS,
approved by Borrower, and submitted to SAFECO to substantiate the Borrowing
Base and any request for an Advance.
(C) "Business Day" means any day other than a Saturday, Sunday, or a
public holiday or the equivalent for banks generally under the laws of the
state of Washington.
(D) "Loan Documents" means this Agreement, the Note, the
-Guaranties, and the Pledge Agreement (as those terms are defined in Section
2.1 below).
(E) "Loan Parties" means Borrower, the Guarantors and the ▇▇▇▇▇▇▇,
collectively, and "Loan Party" means any of the foregoing individually.
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(F) "Note" means the promissory note of Borrower substantially in the
form of Exhibit C hereto evidencing the indebtedness resulting from the
Advances and delivered to SAFECO in accordance with Section 2. 1.
(G) "Services Agreement" means the Computer Services and Consulting
Agreement between Borrower and AIS pursuant to which AIS will provide Borrower
with consulting services and computer processing incident to the operation of
a premium finance company.
ARTICLE 11
CONDITIONS OF LENDING
2.1 Conditions Precedent to Initial Advance. The obligation of SAFECO to
make the initial Advance hereunder is subject to the condition precedent that
SAFECO shall have received on or before the date of that Advance all of the
following, in form and substance satisfactory to SAFECO:
(A) The Note;
(B) Guaranties, duly executed by Oak Wood Insurance Company, Ltd.
and California Landscape Contractors Association Welfare Insurance Trust Fund
(the "Guarantors"), in substantially the form of Exhibit D (the "Guaranties);
(C) Pledge Agreement, duly executed by Oak Wood Insurance Company,
Ltd. and California Landscape Contractors Association Welfare Insurance Trust
Fund ("▇▇▇▇▇▇▇"), substantially in the form of Exhibit E (the "Pledge
Agreement");
(D) Acknowledgment copies of proper Financing Statements (Form
UCC-1) duly filed under the Uniform Commercial Code of all jurisdictions as
may be necessary or, in the opinion of SAFECO, desirable to perfect the
security interests created by Article III of this Agreement and the Pledge
Agreement, together with evidence that all other actions necessary or
desirable in SAFECO's opinion to perfect and protect such security interests
have been taken;
(E) Certified copies of Requests for Information or Copies (Form UCC-
I 1), or equivalent reports, listing the Financing Statements referred to in
paragraph (D) above and all other effective financing statements that name
Borrower (under its present name and any previous name) as debtor and which
are filed in the jurisdictions referred to in paragraph (D), together with
copies of such other financing statements (none of which shall cover the
collateral purported to be covered by Article III of this Agreement or the
Pledge Agreement);
(F) Certified copies of the resolutions of the Board of Directors of
each corporate Loan Party approving each Loan Document to which it is a party
and of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to each Loan Document;
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(G) A certificate of the Secretary or an Assistant Secretary of each
corporate Loan Party certifying the names and specimen signatures of the
officers of such Loan Party authorized to sign each Loan Document to which it
is a party and the other documents to be delivered by it hereunder;
(H) Certificates representing all of the issued and outstanding
shares of stock of Borrower pledged to SAFECO pursuant to the Pledge
Agreement, together with undated stock powers for such certificates executed
in blank;
(I) Current financial statements of Borrower, the Agency, and the,
principals of Borrower and/or the Agency (as specified by SAFECO), including
tax returns for the three most recent years;
(J) A copy of an executed Services Agreement between Borrower and
AIS on terms and conditions reasonably acceptable to SAFECO; and
(K) Such other approvals, opinions, financial statements,
references, or other documents as SAFECO may request.
2.2 Conditions Precedent to All Advances. The obligation of SAFECO to
make Advances (including the initial Advance) shall be subject to the further
conditions precedent that on the date of each such Advance:
(A) The representations and warranties contained in Section 4.1 of
this Agreement are true and correct on and as of the date of such Advance as
though made on and as of such date;
(B) No event has occurred and is continuing or would result from
such Advance which constitutes an Event of Default (as defined in Section 6.1
below) or would constitute an Event of Default but for the requirement that
notice be given or time elapse or both;
(C) SAFECO has not terminated its obligation to make Advances by
notice to Borrower as permitted under Section I. I (E) of this Agreement;
(D) Borrower has delivered to SAFECO, in the manner described in
Section 1.3(A), a request for an Advance and a Borrowing Base Certificate
prepared by AIS, approved by Borrower and dated within two Business Days' of
the date of the request for an Advance; and
(E) SAFECO has received all statements, reports, opinions, approvals
or documents required under this Agreement or as SAFECO may from time to time
request.
2.3 Each request for an Advance delivered pursuant to Section 1.3 shall
constitute a representation as to the matters stated in paragraphs (A) and (B)
of Section 2.2 above.
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ARTICLE III
GRANT OF SECURITY
3.1 Grant of Security. Borrower hereby assigns and grants SAFECO a
security interest in all of Borrower's right, title and interest in and to the
following, whether now owned or hereafter acquired (the "Collateral"),
together with all proceeds of the Collateral:
(A) Any and all Premium Finance Agreements entered into by Borrower,
including without limitation all rights of Borrower to payments of principal,
interest, late payment or cancellation charges, and other payments of any
nature whatsoever thereunder;
(B) Any and all unearned premiums, dividends, and other amounts
payable under insurance policies issued in connection with the Premium Finance
Agreements (the "Insurance Policies"); and
(C) All books and records (in whatever form maintained by Borrower)
of any nature or description whatsoever relating in any manner to the
Collateral.
3.2 Security for Obligations. The grant of security pursuant to this
Article III secures the payment of all obligations of Borrower now or
hereafter existing under this Agreement and the Note, whether for principal,
interest, fees, expenses, or otherwise, and any and all other obligations of
Borrower to SAFECO, direct or indirect, absolute or contingent, due or to
become due, now existing or hereafter arising (all such obligations of
Borrower being the "Obligations").
3.3 Borrower Remains Liable
(A) Borrower shall remain liable under the Premium Finance
Agreements to perform all of its duties and obligations thereunder to the same
extent as if this Agreement had not been executed.
(B) The exercise by SAFECO of any of the rights granted it under this
Agreement shall not release Borrower from any of its duties or obligations
under the Premium Finance Agreements. SAFECO shall not have any obligation or
liability under the Premium Finance Agreements by reason of this Agreement or
be obligated to perform any of the obligations or duties of Borrower
thereunder or to take any action to collect or enforce any claim for payment
assigned under this Agreement.
3.4 Further Assurances.
(A) Borrower shall from time to time, at its sole expense, promptly
execute and deliver all further instruments and documents, and take all
further action, that may be necessary or desirable in SAFECO's sole discretion
in order to perfect and protect any security interest granted or purported to
be granted by this Agreement or to enable SAFECO to exercise and enforce its
rights and remedies hereunder with respect to any Collateral. Without limiting
the generality of the foregoing, Borrower will:
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(1) ▇▇▇▇ conspicuously each of its records pertaining to the
Collateral with a legend in form and substance satisfactory to SAFECO,
indicating that such Collateral is subject to the security interest granted
hereby;
(2) Deliver to SAFECO or its designated agent any Collateral that
is evidenced by a promissory note or other instrument duly endorsed and
accompanied by duly executed instruments of transfer or assignment, all in
form and substance satisfactory to SAFECO; and
(3) Execute and file financing statements, continuation
statements, or amendments thereto and such other instruments or notices as may
be necessary or desirable in SAFECO's sole discretion in order to perfect and
preserve the security interest granted or purported to be granted hereby.
(B) Borrower shall not change its name without first (i) giving
SAFECO I 5 days' prior written notice of such change and (ii) complying with
the requirements of paragraph (A) hereof in consequence of such proposed name
change; and
(C) Borrower hereby authorizes SAFECO to file financing statements,
continuation statements and amendments thereto covering all or any part of the
Collateral without the signature of Borrower where permitted by law. A carbon,
photographic or other reproduction of this Agreement or any financing
statement covering the Collateral shall be sufficient as a financing statement
where permitted by law.
(D) Borrower shall keep-its chief place of business and the office
where it keeps its records concerning the Collateral at the location specified
in Section 8.2 or, upon 30 days' prior written notice to SAFECO, at such other
location in a jurisdiction where all actions required by Section 3.4 have been
taken with respect to the Collateral. Borrower shall take due care of such
records and shall permit representatives of SAFECO at any time during normal
business hours to inspect and make copies of such records.
(E) Except as otherwise provided in Section 6.2 below, Borrower
shall continue to collect, at its own expense, all amounts due or to become
due to Borrower with respect to the Collateral. In connection with such
collections, Borrower may take (and, at SAFECO's discretion, shall take) such
actions as Borrower or SAFECO may deem necessary or advisable to enforce
collection of the Collateral. All collections by Borrower with respect to
Premium Finance Agreements included in the Borrowing Base at any time and any
returns of unearned premiums with respect to canceled insurance policies
subject to such Agreements shall be deposited in the Deposit Account
referenced in Section 1.2(A) above.
3.5 SAFECO Appointed Attorney-in-Fact. The Borrower hereby irrevocably
appoints SAFECO as Borrower's attorney-in-fact, with full authority in
Borrower's place and stead and in the name of Borrower or otherwise to take
any action and execute any instrument that SAFECO deems necessary or advisable
from time to time in SAFECO's discretion to accomplish the purposes of this
Article 111, including without limitation:
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(A) To ask, demand, collect, ▇▇▇ for, recover, compromise, receive, and
give acquittance and receipts for moneys due or to become due under or in
respect of any of the Collateral;
(B) To receive, endorse, and collect any drafts or other instruments
and documents in connection with paragraph (A) above;
(C) To file any claims, take any action or institute any proceedings
that SAFECO may deem necessary or desirable for the collection of any of the
Collateral or to enforce the rights of SAFECO with respect to any of the
Collateral; and
(D) To file financing and continuation statements and amendments
thereto covering all or any part of the Collateral.
3.6 Performance in Borrower's Stead. If Borrower fails to perform any
covenant contained in this Agreement, SAFECO may itself perform, or cause the
performance of, such covenant, and SAFECO's expenses related to such
performance shall be payable by Borrower under Section 8.4.
3.7 SAFECO's Duties. The powers conferred on SAFECO hereunder are solely
to protect SAFECO's interest in the Collateral and shall not impose any duty
upon it to exercise any such powers. Except for the safe custody of any
Collateral in its possession and the accounting for moneys actually received
by it hereunder, SAFECO shall have no duty with respect to the Collateral, and
specifically shall have no duty to take any steps necessary to preserve rights
against prior parties or 'any other rights pertaining to any Collateral.
3.8 Continuing Security Interest. This Agreement shall create a
continuing security interest in the Collateral and shall remain in full force
and effect until payment in full of the Obligations (after termination of the
Commitment) and receipt by SAFECO of written notice from Borrower requesting
the termination of the security hereby granted. Upon payment in full of the
Obligations (after termination of the Commitment) and receipt by SAFECO of the
notice referred to in the preceding sentence, SAFECO shall, at Borrower's
expense, execute and deliver to Borrower such documents as Borrower reasonably
shall request to evidence such termination.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of Borrower. Borrower represents and
warrants to SAFECO as follows:
(A) Borrower is a corporation duly incorporated, validly existing,
and in good standing under the laws of the jurisdiction of its incorporation
and is a duly licensed premium finance company under the laws of California.
(B) The execution, delivery, and performance by Borrower of each
Loan Document to which it is or will be a party (i) are within Borrower's
corporate power; (ii) have been duly authorized by all necessary corporate
action; (iii) do not contravene Borrower's charter or
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by-laws or any law or contractual restriction binding on or affecting
Borrower; and (iv) will not result in or require the creation of any lien,
security interest, or other charge or encumbrance (other than pursuant to this
Agreement) on or with respect to any of Borrower's assets;
(C) No authorization or other action by, and no notice to or filing
with, any governmental authority or regulatory body is required for (i) the
due execution, delivery, and performance by Borrower of any Loan Document to
which it is or will be a party; (ii) the grant by Borrower of the security
interest granted hereby; or (iii) the perfection of or the exercise by SAFECO
of any of its rights and remedies hereunder.
(D) This Agreement is, and each other Loan Document to which
Borrower will be a party when delivered hereunder will be, the legal, valid,
and binding obligations of Borrower enforceable against Borrower in accordance
with their respective terms.
(E) There is no pending or threatened action or proceeding
affecting Borrower or its assets before any court, governmental agency or
arbitrator which may materially adversely affect the financial condition or
operations of Borrower.
(F) The chief place of business and chief executive office of
Borrower are located at the address specified for Borrower in Section 8.2;
Borrower's records concerning the Collateral are located at the address
specified for AIS in Section 8.2.
(G) Borrower owns the Collateral free and clear of any lien,
security interest, charge, or encumbrance, except for the security interest
created by this Agreement. No effective financing statement or other
instrument similar in effect covering all or any part of the Collateral is on
file in any recording office, except such as may have been filed in favor of
SAFECO relating to this Agreement. In the past five years, Borrower has not
been incorporated or done business under any name other than its name as shown
in this Agreement.
(H) The security interest granted by this Agreement is a valid and
perfected first priority security interest in the Collateral in favor of
SAFECO, and all filings and other actions necessary or desirable to perfect
and protect such security interest have been duly taken.
(I) The financial statements of Borrower dated as of the end of the
most recent month, copies of which have been furnished to SAFECO by AIS, and
the financial statements of Borrower compiled or audited by Borrower's
independent accountants and dated as of the end of Borrower's most recent
fiscal year, fairly present the financial condition of Borrower as at their
respective dates and the results of Borrower's operations for the period then
ended, all in accordance with generally accepted accounting principles,
consistently applied, and since their date there has been no material adverse
change in such condition or operations.
ARTICLE V
COVENANTS OF THE BORROWER
5.1 Affirmative Covenants. So long as the Note remains unpaid or SAFECO
has any Commitment under this Agreement, the Borrower shall:
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(A) Comply (and cause each of its subsidiaries, if any, to comply)
in all material respects with all applicable laws, rules, regulations, and
orders, such compliance to include, without limitation, paying by the due date
all taxes, assessments, and governmental charges imposed upon it or its
property, except to the extent contested in good faith.
(B) Maintain in full force and effect its corporate existence,
rights, and franchises.
(C) Obtain and maintain all permits, licenses, and other
governmental approvals necessary for the operation of Borrower's premium
finance business.
(D) Cause AIS to furnish to SAFECO, as soon as available and in any
event within thirty days after the end of each month, a balance sheet of
Borrower as of the end of such month and an income statement of Borrower for
the period commencing at the end of Borrower's previous fiscal year and ending
with such month, together with such other information respecting the condition
(financial or otherwise) of Borrower as SAFECO may request.
(E) Furnish to SAFECO, within 60 days after the end of each fiscal
year of Borrower, a balance sheet, income statement, statement of cash flows
and a statement of changes in shareholders' equity of Borrower for the past
fiscal year audited or compiled by Borrower's independent accountants in
conformity with generally accepted accounting principles, consistently
applied.
(F) Furnish to SAFECO via Email each time that Borrower requests an
Advance, and in any event at least weekly, a Borrowing Base Certificate in the
form of Exhibit B hereto (or such other form as may be agreed by the parties
from time to time) prepared by AIS in accordance with written instructions
from SAFECO.
(G) Cause to be furnished to SAFECO, upon request, financial
information relating to the Agency, the Guarantors and any individuals
affiliated with Borrower and/or the Agency.
(H) Pay or cause to be paid to SAFECO, immediately upon receipt by
Borrower or Agency, any gross unearned premiums returned by an insurer to
Borrower or Agency (other than to AIS' address) upon the cancellation of any
Insurance Policy in which SAFECO has a security interest pursuant to Article
III of this Agreement.
(I) Give SAFECO as much prior notice as possible of any audits or
investigations of Borrower by any state regulatory authority and send SAFECO a
copy of the results of any such audits or investigations within five days
after Borrower's receipt of the report.
5.2 Negative Covenants. So long as the Note remains unpaid or SAFECO has
any Commitment hereunder, Borrower will not do any of the following:
(A) Create or suffer to exist any lien, security interest, or other
charge or encumbrance or any other type of preferential arrangement, upon or
with respect to any of the Collateral.
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(B) Merge or consolidate with any other entity, or lease, sell or
otherwise dispose of all or any substantial portion of its assets or business,
or permit any of its subsidiaries to do so.
(C) Default on or fail to pay any indebtedness for money borrowed as
the same matures under any agreement, or permit to occur any other event which
creates a default under any such agreement to which Borrower is a party or
by which it is bound; provided, however, that Borrower shall not be required
to pay any amount that is being contested in good faith and by proper
proceedings that are being reasonably and diligently pursued and with respect
to which adequate reserves have been established on the books of Borrower.
(D) Enter into any agreement having any terms or conditions in
conflict with any terms or conditions of this Agreement.
ARTICLE VI
EVENTS OF DEFAULT
6.1 Events of Default . Each of the following events shall be an "Event of
Default":
(A) Borrower fails to make any payment on the Note when due.
(B) Borrower fails to reduce the outstanding balance on the Note to
the amount of the Borrowing Base when required under Section 1. I (D).
(C) Any representation or warranty made by any Loan Party (or any of
its officers) under or in connection with any Loan Document proves to have
been incorrect in any material respect when made.
(D) Any Loan Party fails to perform any term, covenant or agreement
contained in any Loan Document on its part to be performed (other than payment
on the Note when due) and any such failure remains unremedied for 10 days
after SAFECO has given written notice thereof to such Loan Party;
(E) Any Loan Party fails generally to pay its debts as they become
due, or admits in writing its inability to pay its debts generally, or makes a
general assignment for the benefit of creditors; or is the subject of a
petition in bankruptcy, whether voluntary or involuntary, or in any other
proceeding under the federal bankruptcy laws, or any proceeding is instituted
against any Loan Party seeking the entry of an order for relief or the
appointment of a receiver, trustee, or other similar official for it or for
any substantial part of its assets; or any Loan Party takes any corporate
action to authorize any of the actions described in this paragraph (E).
(F) Any material adverse change occurs in the financial condition or
business operations of Borrower.
(G) Any provision of any of the Guaranties for any reason ceases to
be valid and binding on the Guarantor, or the Guarantor so states in writing.
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(H) SAFECO for any reason ceases to have a valid and perfected first
priority security interest in any of the Collateral purported to be covered by
Article III of this Agreement.
(I) The Pledge Agreement for any reason ceases to create a valid and
perfected first priority security interest in, any of the shares purported to
be covered thereby.
(J) The Services Agreement is terminated for any reason without
SAFECO's consent; provided, however, that if such termination results from
Borrower's failure to pay any amount due to AIS under the Services Agreement,
AIS shall nevertheless continue to perform the Administrative Services as
defined in Section 7.1 below and other duties required of AIS under this
Agreement. at no cost to SAFECO, and any amounts owing to AIS by Borrower may
be recovered through right of offset as provided in the Services Agreement.
(K) Borrower's premium finance license is suspended or revoked by
any state or proceedings threatening such action are commenced by any state
regulatory authority.
(L) AIS fails to perform the Administrative Services (as defined in
Section 7.1) in a timely and satisfactory manner, as reasonably determined by
SAFECO.
(M) Any "Adverse Event" occurs. For purposes of this Agreement, the
following shall constitute Adverse Events:
(1) AIS merges with or into or consolidates with any other
entity, or leases, sells or otherwise disposes of all or any substantial
portion of its assets or business (and AIS' proprietary software system 'shall
be considered a substantial portion of its assets).
(2) AIS generally fails to pay its debts as they become due,
admits in writing its inability to pay its debts generally, or makes a general
assignment for the benefit of creditors; or AIS is the subject of a petition
in bankruptcy, either voluntary or involuntary, or in any other proceeding
under the federal bankruptcy laws; or any proceeding is instituted by or
against AIS seeking the entry of an order for relief or the appointment of a
receiver, trustee, or other similar official for it or for any substantial
part of its assets, and such action is not set aside within 30 days; or AIS
takes any corporate action to authorize any of the actions set forth in this
subparagraph (2).
(3) A material adverse change occurs in the financial
condition, business operations, management or ownership of AIS which results
or is likely to result, in SAFECO's reasonable judgment, in AIS being unable
to perform its obligations under this Agreement.
6.2 Remedies. In the event any Event of Default occurs and is continuing,
SAFECO may:
(A) Upon written notice to Borrower, cease making Advances under
this Agreement or otherwise extending credit to Borrower.
(B) Declare the Note, all interest thereon, and all other amounts
payable under this Agreement to be due and payable, whereupon the Note, all
such interest and all such amounts
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shall become immediately due and payable without presentment, demand, protest,
or further notice of any kind, all of which Borrower hereby expressly waives.
(C) Exercise in respect of the Collateral, in addition to any and
all other rights and remedies provided for herein or otherwise available to
SAFECO, all the rights and remedies of a secured party on default under the
Uniform Commercial Code (the "Code") (whether or not the Code applies to the
affected Collateral).
(D) Upon written notice to Borrower, notify the account debtors or
obligors under any Collateral of the assignment of such Collateral to SAFECO
and direct such account debtors or obligors to make payment directly to SAFECO
of all amounts due or to become due thereunder to Borrower. Alternatively,
SAFECO may require Borrower to give such notification to account debtors or
obligors. In the event SAFECO exercises the remedy set forth in this paragraph
(D), SAFECO shall have the right, at Borrower's expense, to enforce collection
of any Collateral and to adjust, settle, or compromise the amount or payment
thereof in the same manner and to the same extent as Borrower might have done,
and Borrower shall not adjust, settle or compromise the amount or payment of
any Collateral or release any account debtor or obligor thereon.
(E) Require Borrower, at Borrower's expense and upon request of
SAFECO, to assemble all the books and records relating to the Collateral and
make them available to SAFECO at a place designated by SAFECO which is
reasonably convenient to both parties.
(F) Without notice except as specified below, sell the Collateral
or any part thereof in one or more parcels at public or private sale, at any
of SAFECO's offices or elsewhere, for cash, on credit or for future delivery,
and -at -such price and on such other terms as SAFECO may deem commercially
reasonable. Borrower agrees that, to the extent notice of sale is required by
law, IO days' notice to Borrower of the time and place of any public sale or
the time after which any private sale is to be made shall constitute
reasonable notification. SAFECO shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. SAFECO may adjourn
any public or private sale from time to time by announcement at the time and
place fixed therefor, and such sale may, without further notice, be made at
the time and place to which it was so adjourned.
6.3 Receipt in Trust. Following the occurrence of any Event of Default,
all amounts and proceeds received by the Borrower in respect of the Collateral
shall be received in trust for the benefit of SAFECO, shall be segregated from
other funds of the Borrower and shall be paid over promptly to SAFECO in the
same form as received (with any necessary endorsement), to be applied as
provided in Section 6.4 below.
6.4 Application of Proceeds. All cash proceeds received by SAFECO or its
agents or authorized representatives or by AIS in respect of any sale of,
collection from, or other realization on all or any part of the Collateral
may, in SAFECO's discretion, and whether or not an Event of Default has
occurred or is continuing, be held by SAFECO as collateral for the Obligations
or at any time be applied (after payment of any amounts payable to SAFECO
pursuant to Section 6.5 or Section 8.4) in whole or in part by SAFECO against
all or any part of the Obligations. Any surplus of cash or cash proceeds held
by SAFECO remaining after payment in full of the Obligations shall be paid to
Borrower or to whomever may be lawfully entitled to receive such surplus.
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6.5 Indemnity. Borrower agrees to indemnify and hold SAFECO harmless from
and against any and all claims, losses, liabilities, damages or expenses
(including without limitation reasonable attorneys' fees) resulting from or
arising out of this Agreement (including, without limitation, enforcement of
this Agreement), except claims, losses, liabilities, damages or expenses which
proximately result from SAFECO's gross negligence or willful misconduct.
ARTICLE VII
RESPONSIBILITIES OF AIS
7.1 7.1 Administrative Services. AIS agrees to provide the following
services (collectively, the "Administrative Services") to SAFECO in connection
with the Advances to be made by SAFECO under this Agreement:
(A) AIS shall compute, in accordance with SAFECO's written
instructions, and send via Email to Borrower each time that Borrower wishes to
request an Advance, and in any event at least weekly, a Borrowing Base
Certificate in the form of Exhibit B hereto or such other form as may be
agreed by the parties from time to time.
(B) AIS shall provide SAFECO with any supporting information and
documentation that SAFECO may from time to time request with respect to the
computations made by AIS for Borrowing Base Certificates, including without
limitation a monthly list of cancellations and new premiums financed.
(C) AIS shall furnish to SAFECO within 30 days after the end of each
month (i) a monthly balance sheet of Borrower as of such month-end and (ii) an
income statement of Borrower for the period commencing at the end of the
previous fiscal year of Borrower and ending with such month.
(D) AIS shall compute or compile and furnish to SAFECO, by the
seventh day of each month (i) the amount of receivables included in Borrower's
Borrowing Base with respect to each insurer; (ii) the amount of receivables
with respect to each insurer on an aggregate basis for SAFECO's entire premium
finance loan program; (iii) ratings information for each insurer; (iv) an
accounts receivable aging report; (v) a production report; (vi) a cancellation
report; (vii) statements of unearned premiums and commissions; (viii) a
statement of annual percentage rates on Borrower's existing Premium Finance
Agreements; (ix) any other reports produced for Borrower, including without
limitation reports required by state regulatory requirements; and (x) such
other information respecting the condition (financial or otherwise) of
Borrower as SAFECO may from time to time reasonably request.
(E) AIS shall establish standard procedures acceptable to SAFECO for
the notification of insurers of (i) the assignment of each Insurance Policy by
the insured to Borrower and (ii) the assignment of each such policy and the
related Premium Finance Agreement by Borrower to SAFECO.
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(F) AIS shall permit SAFECO to access all of its records pertaining
to Borrower, including electronic records, and shall provide SAFECO with any
software necessary to access such records. In addition, AIS shall provide
access to its system upon SAFECO's request from time to time for purposes of
validating the accuracy and reliability of system information.
(G) AIS shall provide SAFECO, upon 10 days' advance notice, with any
other information in AIS' possession or reasonably available to AIS regarding
any Loan Party or insurer which SAFECO may from time to time reasonably
request.
7.2 Insurance. AIS shall obtain and maintain, at its expense, the
following insurance coverages, in each case from an admitted carrier with a
rating of B+ or better from A.M. Best:
(A) Errors and omissions insurance in a minimum amount of $500,000
per occurrence, $1,000,000 aggregate.
(B) Employee dishonesty coverage in a minimum amount of $500,000.
(C) General commercial liability insurance in a minimum amount of
$1,000,000 per occurrence, $1,000,000 aggregate.
(D) Key person life insurance with respect to ▇▇▇▇▇ ▇. ▇▇▇▇ in a
minimum amount of $300,000.
7.3 Government Audits. AIS shall give SAFECO as much advance notice as
possible of any audits or investigations of AIS by any government regulatory
authority and shall provide SAFECO with the results of any such audits or
investigations within five days after AIS' receipt of the results.
7.4 Financial Statement. AIS shall furnish to SAFECO, within 90 days
after the end of each fiscal year, audited financial statements, including a
balance sheet, income statement, statement of cash flows and statement of
changes in shareholders' equity for its past fiscal year, prepared in
conformity with generally accepted accounting principles, consistently
applied.
7.5 Inspections and Access. SAFECO and its agents or authorized
representatives shall have the right to access, inspect and copy the books and
records of AIS at its offices during normal business hours. In the event of an
Event of Default under paragraph (L) or (M) of Section 6. 1, SAFECO shall have
the right to assign a SAFECO employee or contractor to work in the offices of
AIS for purposes of assuring business continuity and coordinating the transfer
of information and records to a successor third party administrator to replace
AIS.
7.6 Agency Relationship. Pursuant to the terms of the Services Agreement,
AIS shall serve as a depository for Premium Finance Agreements entered into by
Borrower. The parties agree that AIS shall hold such Premium Finance
Agreements as SAFECO's agent for the sole purpose of perfecting SAFECO's
interest in such agreements and the rights of Borrower thereunder. Upon
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request, AIS shall deliver any and all such agreements to SAFECO at such
location as SAFECO may specify.
7.7 Daily Back-up. At the conclusion of each working day, AIS shall
provide SAFECO with a complete download of all information SAFECO may specify
pertaining to all existing premium finance agreements to which Borrower is a
party, including without limitation the names, addresses and phone numbers of
▇▇▇▇▇'▇ customers, information regarding the financed insurance policies
(including expiration dates), original loan amount and balance outstanding on
each account, billing information, and information regarding any action taken
to cancel a financed policy. Such download shall be delivered in an electronic
medium (e.g., tape, diskette, transmission via modem) reasonably acceptable to
both SAFECO and AIS. In the absence of an Event of Default under paragraph (L)
or (M) of Section 6.1, SAFECO shall keep all proprietary information included
in daily downloads confidential. If there is an Event of Default as defined in
paragraph (L) or (M) of Section 6.1, however, SAFECO shall have the right to
make all or any part of the information contained in the daily downloads
available to one or more third parties solely to facilitate the transfer of
responsibility for performing the Administrative Services and all other duties
of AIS under this Agreement to another third party administrator so as to
maintain business continuity for Borrower and SAFECO. Both AIS and Borrower
hereby consent to such transfer of duties to a new third party administrator
mutually acceptable to Borrower and SAFECO to replace AIS at SAFECO's request
in the event of an Event of Default under paragraph (L) or (N4) of Section
6.1. Moreover, in such event, AIS shall relinquish all of its control over
Borrower's Deposit Account and Operating Account and shall cooperate fully in
the transition to the new third party administrator.
7.8 Representations and 'Warranties of AIS. AIS represents and warrants
to SAFECO as follows:
(A) With respect to all Premium Finance Agreements included in the
Borrowing Base, prior to such inclusion, all actions necessary to notify each
insurer of the assignment to SAFECO of the rights to unearned premiums,
dividends and other amounts payable to insureds under the related Insurance
Policies shall have been taken.
(B) All information and reports to be provided to SAFECO by AIS
under this Agreement shall be accurate and complete in all material respects
on the date when provided to SAFECO.
(C) The forms supplied by AIS for use by Borrower under the Services
Agreement and AIS' forms and procedures for processing and administering
Premium Finance Agreements originated by Borrower (including, without
limitation, the forms and procedures for ▇▇▇▇▇▇▇▇, notices to insureds and
insurers, cancellations, and payments on accounts) are currently, and will at
all times be maintained, in compliance with the applicable federal laws and
the laws of all states in which Borrower engages in the business of premium
finance.
7.9 Indemnification. AIS shall indemnify and hold SAFECO harmless from
and against any and all claims, losses, liabilities, costs, damages or
expenses (including without limitation reasonable attorneys' fees) resulting
from or arising out of AIS' performance or failure to
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perform its obligations under this Agreement, except claims, losses,
liabilities, costs, damages or expenses which proximately result from SAFECO's
negligence or misconduct.
ARTICLE VIII
MISCELLANEOUS
8.1 Waivers. No waiver of any provision of this Agreement or any other
Loan Document or consent to departure from any ten-n or condition thereof
shall be effective unless it is in writing and signed by SAFECO. Any waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
8.2 Notices. All notices and other communications provided for in this
Agreement shall be in writing and mailed (via certified mail, return receipt
requested), taxed or delivered:
If to Borrower, at ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Fax:
▇▇▇-▇▇▇-▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Chief Financial Officer
If to SAFECO, at ▇▇▇▇▇▇ ▇▇▇▇▇, ▇-▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Fax:
206/▇▇▇-▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇▇
If to AIS, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Fax: 314/▇▇▇-▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, President
or to such other address or fax number as any party may specify by written
notice to the other parties in accordance with this Section 8.2. If mailed,
notices and communications shall be effective three days after deposit,
postage prepaid, in the U.S. mail. Faxed notices and communications shall be
effective upon transmission. Notices and communications delivered other than
via U.S. mail or fax transmission shall be effective upon delivery.
8.3 No Waiver: Remedies. No failure on the part of SAFECO to exercise,
and no delay in exercising, any right under any Loan Document shall operate as
a waiver thereof No single or partial exercise of any right under any Loan
Document shall preclude any other or further exercise thereof or the exercise
of any other right. The remedies provided in the Loan Documents are cumulative
and not exclusive of any remedies provided by law.
8.4 Costs, Expenses and Taxes. Borrower agrees to pay on demand (i) all
reasonable fees and out-of-pocket expenses of counsel for SAFECO for advice
regarding SAFECO's rights and responsibilities under the Loan Documents and
(ii) all costs and expenses (including reasonable counsel fees and expenses)
in connection with the enforcement of the Loan Documents and the other
documents to be delivered under the Loan Documents, whether or not litigation
is commenced. In addition, Borrower shall pay any stamp taxes and other taxes
or fees payable in connection with the execution, delivery, filing and
recording of the Loan Documents and the other documents to be delivered under
the Loan Documents, and shall indemnify and hold
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SAFECO harmless from and against any liabilities resulting from any delay in
paying or omission to pay such taxes and fees.
8.5 Right of Set-off. Upon the occurrence and during the continuance of
any Event of Default, SAFECO is authorized at any time and from time to time,
to the fullest extent permitted by law, without notice to Borrower (any such
notice being expressly waived by Borrower), to set off and apply any and all
amounts then held or at any time thereafter received by SAFECO for the account
of Borrower (including amounts held or received by AIS) against any and all of
the Obligations of Borrower, matured or unmatured, now or hereafter existing
under any Loan Document, and irrespective of whether SAFECO has made any
demand under such Loan Document. SAFECO agrees to promptly notify Borrower
after any set-off and application; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of SAFECO under this Section 8.5 are in addition to all other rights
and remedies available to SAFECO.
8.6 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of Borrower, SAFECO, and AIS, and their respective successors and
assigns; provided , however , that neither Borrower nor AIS shall have the
right to assign its rights or obligations hereunder or any interest herein
without the prior written consent of SAFECO.
8.7 Acceptance; Governing Law. This Agreement shall become effective upon
acceptance by SAFECO at its offices in Seattle, Washington. This Agreement,
the Note and the other Loan Documents shall be governed by and construed in
accordance with the laws of the state of Washington without regard to
conflict-of-laws principles.
8.8 Severability. Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid
or unenforceable, such provision shall be ineffective only to the extent
necessary without invalidating the remainder of such provision or the other
provisions of this Agreement.
8.9 Illegality. No party to this Agreement shall be obligated to perform
any obligations required by this Agreement to the extent that such performance
would violate state or federal law.
8. 10 Entire Agreement . This Agreement and the Loan Documents are the
complete agreements of the parties and supersede all previous understandings
between the parties relating to the subject matter hereof.
8.11 Amendments. No purported amendment of this Agreement or any other Loan
Document shall be effective unless in writing and executed by all the parties
to the Loan Document in question.
8.12 Confidentiality. The terms and provisions of this Agreement and the
other Loan Documents are confidential and shall not be disclosed, in whole or
in part, to any person who is not a party to this Agreement or the other Loan
Documents.
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8.13 Conflicts between Agreements. In the event of a conflict between the
agreement and the Services Agreement, the provisions of this Agreement shall
control.
BORROWER: Birch Financial, Inc.
a California corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Its: C.F.O.
SAFECO: SAFECO CREDIT COMPANY, INC.
a Washington corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
Its: Asst. Vice President
AIS: AUTOMATED INSTALLMENT SYSTEMS, INC.
a Missouri corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------
Its: President
EXHIBIT A
SAFECO SYSTEMS ACCESS & USE AGREEMENT:
SOFTWARE LICENSE
1. The parties to this Agreement are SAFECO Insurance Company of America
(SAFECO) and ________________________________________________________ (User).
2. To facilitate communication between SAFECO and USER, SAFECO has agreed to
provide access to and use of certain SAFECO computer systems, including: _____
________________________________________________________________ (SYSTEMS).
User shall have access to these SYSTEMS on regular business days from 7:30
a.m., until 5:00 p.m., for the sole purpose of furthering its business with
SAFECO.
3. USER's access to the above-referenced SYSTEMS will commence on the
effective date of this Agreement and will remain in effect as long as SAFECO
continues its business relationship with USER, except SAFECO retains the right
to suspend USER's access to the SYSTEMS if, in the opinion of SAFECO, access
to the SYSTEMS or information within the SYSTEMS has been compromised or the
terms of this Agreement have been violated. Such suspension shall remain in
effect until the problem has been resolved.
4. USER agrees to pay a LICENSE FEE of $__________ per year for the access to
the SYSTEMS listed in paragraph 2. Payment is due on _____________, 19___ and
on each successive anniversary of this Agreement. The LICENSE FEE is
considered fully earned as of the effective date of this Agreement. Payments
shall be remitted to SAFECO at ____________________________________________.
Failure of USER to pay by the due date shall entitle SAFECO to terminate this
Agreement without advance notice.
5. a. SAFECO hereby grants a license to USER applicable to the software
programs (PROGRAM) identified in Attachment A to this Agreement, which is
incorporated herein by reference. This software was developed and is owned by
SAFECO, and is provided for the sole purpose of enabling USER to have access
to the above-named SYSTEMS.
b. USER may: (1) use the PROGRAM on as many individual machines as it
possesses; (2) copy the PROGRAM into any machine-readable or printed form for
backup or modification purposes in support of its use of the PROGRAM on the
machines described in (1) above; and (3) modify the PROGRAM and/or merge it
into another program upon the condition that any portion of the PROGRAM merged
into another program will continue to be subject to the terms and conditions
of this license. SAFECO's copyright notice must be reproduced and included on
any copy, modification, or portion merged into another program.
c. USER may not use, copy, modify, transfer or sublicense the PROGRAM, or
any copy, modification or merged portion, in whole or in part, except as is
expressly provided for in this license. Any attempt otherwise to sublicense,
assign or transfer any of the rights, duties or obligations hereunder is void.
d. Upon termination of this Agreement, USER shall return the PROGRAM to
SAFECO, together with all copies, modifications, or merged portions in any
form, or shall destroy the PROGRAM, together with all copies, modifications or
merged portions in any form. SAFECO shall have the right to immediately
terminate this Agreement and retake possession of the software and any copies,
if USER transfers possession of the PROGRAM, copy, modification or merged
portion, in whole or in part, to another party.
e. This license is not a sale of the original or any subsequent copy of
the PROGRAM.
f. USER may be deemed the owner of the diskette upon which the PROGRAM is
originally recorded, but an express condition of this license is that SAFECO
shall retain ownership of the PROGRAM recorded on the original diskette copy
and all subsequent copies of the PROGRAM, regardless of the form or media in
or on which the original or other copies may subsequently exist.
g. The PROGRAM is licensed to USER "as is" without warranty of any kind,
express or implied, including (but not limited to) the implied warranties of
merchantability and fitness for a particular purpose
6. USER agrees to use computer equipment (HARDWARE) which SAFECO has
determined to be compatible with its SYSTEMS. SAFECO will assist with
installation of the necessary HARDWARE and software and will provide the
necessary training to USER personnel in order to assure the proper use of the
equipment and software.
7. USER agrees to treat all information acquired under this Agreement,
including but not limited to any SYSTEMS identification data or passwords, as
confidential, and shall not disclose any such information without SAFECO's
prior written consent. USER agrees to limit access, information and use of
the SYSTEMS to only those USER employees who have a need to know in order to
use the SYSTEMS in furtherance of USER's business with SAFECO, and SAFECO
reserves the right to monitor SYSTEMS communications to confirm compliance
with this limitation. In the event that USER determines it may be subject to
a court order requiring disclosure of this information to a third party, USER
agrees to provide SAFECO as much notice as possible so that SAFECO may
intervene in such an action and seek the appropriate relief from the court.
USER's obligation to safeguard all information obtained pursuant to this
Agreement shall survive the termination of this Agreement.
8. USER agrees to indemnify and hold SAFECO harmless from and against all
expenses, costs and damages (including legal fees and expenses) whether they
are direct or consequential which arise out of USER's misuse of the SYSTEMS or
which arise out of USER's failure to comply with its obligations under this
Agreement.
9. USER agrees that SAFECO and its parent corporation and affiliated
corporations shall not be liable for any loss of profits, loss of use, or
other damage suffered or incurred by USER or by any third party of any nature
and from any cause whatsoever whether direct, special, incidental or
consequential, arising out of the furnishing, performance, maintenance or use
of the SYSTEMS, including hardware and software, described in this Agreement
and Attachment.
10. Either party may terminate this Agreement by giving the other advance
written notice, except as provided in paragraphs 3. And 4.d. This Agreement
shall be deemed terminated if and when USER's business relationship with
SAFECO terminates, regardless of who initiates termination or the reason
therefor.
11. This Agreement shall constitute the entire agreement regarding SAFECO
SYSTEMS ACCESS & USE, including the licensing of PROGRAMS, between SAFECO and
USER, and shall supercede any prior agreements, arrangements, representations
or promises, whether oral or written. This Agreement may be amended only by a
writing executed by both parties hereto. Any failure of USER to comply with
any obligation herein may be expressly waived by SAFECO, but such waiver or
failure to insist upon strict compliance with such obligation shall not
operate as a waiver of, or estoppel with respect to any subsequent or other
failure by USER. USER may not assign any of its rights under this Agreement
without the prior written consent of SAFECO. This Agreement shall be
construed under the laws of the State of Washington. All notices or other
communications required or permitted under this Agreement shall be in writing
and shall be mailed first-class mail, postage pre-paid to the parties at the
addresses set forth below:
________________________ SAFECO Insurance Company of America
________________________ SAFECO Plaza
________________________ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
________________________ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: __________________ Attn: Corporate Data Processing
TMS/SEC Unit
This Agreement shall be effective this _____ day of ________________ , 19__.
SAFECO INSURANCE COMPANY OF AMERICA
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ By
--------------------- --------------------------
C.F.O. --------------------------
Type Name/Title Type Name/Title
EXHIBIT B
Premium Finance Company Name
Borrowing Base Certificate
Premium Finance Company and Third Party Administrator pursuant to the Credit
and Security Agreement dated __________________ (the "Credit Agreement") among
Borrower, Automated Installment Systems, Inc. (TPA) and SAFECO Credit Company,
Inc. ("SAFECO"), hereby certify to SAFECO that the following items, calculated
in accordance with the terms and definitions set forth in the Credit
Agreement, are true and correct and that Borrower is in compliance with and,
after giving effect to any currently requested Advances, will be in compliance
with the terms, conditions and provisions of the Credit Agreement.
Effective Date of Calculation: ________________________
ELIGIBLE ACCOUNTS
Total amount owing to borrower on its receivables $
Less: Ineligible Receivables:
Receivables related to admitted insurers with
less than a B+ rating from A.M. Best. ( )
Receivables related to non-admitted insurers
with less than a A- rating from A.M. Best. ( )
Receivables related to regulated alien insurers
with less than a A- rating from A.M. Best. ( )
Receivables from insureds where payments are
more than 30 days past due. ( )
Receivables from insurers where payments are
more than 90 days past cancellation date. ( )
Receivables from insurers which exceed limits
established for that insurer. ( )
Broker fees. ( )
Other ineligible receivables. ( )
Net Receivables $
Borrowing Base = Net Receivables times 90 percent $
LOAN
Approved amount of Line of Credit $
Less: Presently outstanding balance ( )
Net amount available under Line of Credit $
Loan Amount Requested $
New outstanding balance $
Birch Financial, Inc. Automated Installment Systems, Inc.
By: By:
--------------------------- ----------------------------
Date: Date:
------------------------- --------------------------
EXHIBIT C
SAFECO Credit Company, Inc. ACCOUNT NO. BIRCH7139
PROMISSORY NOTE
LINE OF CREDIT
$ 3,500,000.00
July 10, 1998
THIS PROMISSORY NOTE ("Note") amends, restates and replaces that certain
Promissory Note dated October 8, 1997 made by Birch Financial, Inc., in the
original principal amount of $2,500,000 and is made in accordance with that
certain Credit and Security Agreement dated November 15, 1996 among SAFECO
Credit Company, Inc., Birch Financial, Inc., and Automated Installment
Systems, Inc., as amended on December 1, 1996, July 24, 1997, October 8, 1997
and July 10, 1998 (the "Loan Agreement").
FOR, VALUE RECEIVED, the undersigned, ("Borrower"), promises to pay, on
demand, to the order of SAFECO CREDIT COMPANY, INC., a Washington corporation
("Holder"), or its successors and assigns, at its office at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, or at such other place as Holder may designate, in
immediately available funds and lawful money of the United States of America,
the principal sum of Three Million Five Hundred Thousand and 00/100 Dollars,
or so much thereof as may be advanced and outstanding hereunder from time to
time, with interest thereon from the date of disbursement until paid in full.
Advances under this Note shall be characterized as either Standard Advances or
Preferred Advances(as defined in Section 1.3(A) of the Loan Agreement). Each
Standard Advance ("Advance") made under this Note shall bear interest at the
per annum rate equal to the Prime Rate announced from time to time by Bank of
America (the "Reference Rate") plus one-half percent (0.5%) per annum,
adjusted to reflect each change in the Reference Rate on the first day of the
month following the change: provided, however, that in no event shall the
interest charged on Standard Advances be less than seven and one-half percent
(7.50%) per annum. Each Preferred Advance made under this Note shall bear
interest at the Reference Rate, adjusted to reflect each change in the
Reference Rate on the first day of the month following the change; provided,
however, that in no event shall the interest charged on Preferred Advances be
less than seven and one-half percent (7.50%) per annum.
The principal of this Note shall be advanced from time to time on the terms
and subjects o the conditions contained in the Loan Agreement in such amounts
and at such times as Borrower shall request, but the total principal amount
outstanding under this Note shall at no time exceed $ 3,500.000.00.
This Note is secured by the Loan Agreement, which grants Holder a security
interest in all premium finance agreements entered into by Borrower,
Borrower's rights to unearned premiums with respect to policies related to
such premium finance agreements and certain other designated collateral, and
by all other instruments now or hereafter executed by Borrower, its
shareholders or any other affiliates of Borrower in favor of Holder which in
any manner constitute additional security for this Note (all of which are
hereinafter called the "Security Documents").
Accrued interest on Advances under this Note shall be paid monthly commencing
on the 15th day of July, 1998 and continuing on the same day of each month
thereafter. All payments on this Note shall be applied first to any expenses
owed by Borrower to Holder under the Loan Agreement, then to accrued interest
and any remainder to unpaid principal.
If any payment remains unpaid 10 days after its due date, Borrower agrees to
pay to Holder a late charge equal to 10% of the payment, or the maximum such
charge permitted by applicable law, whichever is less. However, the late
charge shall not accrue when the Default Rate is in effect.
Time is of the essence in the performance of all obligations under this Note
and the Security Documents. If Borrower is in default under this Note, fails
to make any payment of interest when due, fails to repay the entire principal
balance together with interest thereon following demand by Holder, or defaults
in the performance or observance of any of the terms, covenants or conditions
contained in the Security Documents, then the principal balance of this Note
as allocated between Standard Advances and Preferred Advances shall thereafter
bear interest at 6% per annum above the rate stated in the first paragraph of
this Note or the highest rate allowed by law, whichever is less (the "Default
Rate").
Holder and all endorsers, guarantors and other persons liable or becoming
liable on this Note waive presentment, protest and demand, notice of protest,
demand and dishonor and nonpayment of this Note, and consent to any and all
renewals and extensions in the time of payment hereof, and further agree that,
at any time and from time to time and without notice, the terms of payment
hereof may be modified by written agreement of Borrower and Holder without in
any way affecting the liability of any guarantor or endorser to this Note or
any other person liable or to become liable with respect to this Note.
Borrower agrees to pay all costs and expenses incurred by Holder, including
without limitation Holder's reasonable attorneys' fees, relating to any
default or to a determination of Holder's rights or remedies under this Note
or under the Security Documents, whether or not a lawsuit is commenced and
reasonable attorneys' fees relating to any actions or proceedings which Holder
may institute to protect its interest under the terms of this Note or under
the Security Documents, including those incurred in bankruptcy proceedings
involving the Borrower or its successors and assigns.
The parties do not intend to contract for, charge or receive any interest or
other charge which exceeds the maximum amount permitted by applicable law. If,
by virtue of applicable law, sums in excess of such maximum are payable
hereon, then such excess when received by Holder shall be immediately applied
to the principal amount owing on this Note or, if no principal amount is
outstanding, be refunded to Borrower.
This Note shall be governed by and construed under the laws of the State of
Washington (without giving effect to conflict of law principles) and shall be
the joint and several obligation of Borrower and all endorsers, binding upon
them and their successors and assigns.
ALL COMMUNICATIONS CONCERNING DISPUTED DEBTS AND OBLIGATIONS OF BORROWER UNDER
THIS NOTE OR ANY OTHER LOAN DOCUMENT BETWEEN BORROWER AND HOLDER, INCLUDING
WITHOUT LIMITATION DISPUTES AS TO THE AMOUNT OF ANY PAYMENT, FEE OR CHARGE,
AND INCLUDING AN INSTRUMENT TENDERED AS FULL SATISFACTION OF A DISPUTED DEBT,.
MUST BE SENT TO THE FOLLOWING ADDRESS, OR TO SUCH OTHER ADDRESS AS THE HOLDER
MAY HEREAFTER SPECIFY:
SAFECO Credit Company, Inc.
Premium Finance Department
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
ANY SUCH COMMUNICATION MUST INCLUDE THE NAME OF BORROWER, THE APPLICABLE LOAN
NUMBER, A DESCRIPTION OF THE DISPUTE, AND AN ADDRESS AND TELEPHONE NUMBER
WHERE THE PERSON SENDING THE NOTICE CAN BE CONTACTED.
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY. EXTEND CREDIT OR FORBEAR
FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW.
Revised Code of Washington 19.36.
BIRCH FINANCIAL. INC,
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------
Title: CEO/CFO
-------
EXHIBIT D
CONTINUING GUARANTY
The undersigned ("Guarantor') requests that SAFECO Credit Company, Inc.
("Creditor') extend credit or other financial accommodations to Birch
Financial, Inc. ("Debtor').
In consideration of this extension of credit or financial accommodations,
Guarantor, as primary obligor and not endorser, absolutely and unconditionally
guarantees the full and prompt payment when due of all present and future
obligations of Debtor to Creditor, howsoever created, direct or indirect,
absolute or contingent, now existing or hereafter arising, due or to become
due, whether it represents principal, interest, rent, late charges, fees,
indemnities, an accelerated balance, liquidated damages, a deficiency after
sale or other disposition of leased equipment or collateral, or any other sums
owing to Creditor (all such obligations being hereafter referred to as the
'Indebtedness'). Guarantor acknowledges and agrees that Creditor would not
extend credit or grant financial accommodations to Debtor without this
Guaranty and Guarantor further acknowledges receipt of adequate consideration
for this Guaranty. Guarantor further agrees to pay all expenses, including
attorneys' fees and court costs, paid or incurred by Creditor in attempting
to collect the Indebtedness and in enforcing, preserving or interpreting this
Guaranty.
This is a continuing Guaranty. Creditor may from time to time grant credit or
other financial accommodations to Debtor without further notice to Guarantor.
This Guaranty shall remain in full force and effect until Guarantor delivers
to Creditor written notice revoking the Guaranty as to any Indebtedness
incurred after receipt of the written notice but the revocation shall not
affect any Indebtedness existing prior to receipt of the notice. The execution
of this Guaranty shall not extinguish, release or waive any obligations,
promises or guarantees contained in any guaranty previously executed by
Guarantor.
Guarantor represents and warrants to Creditor that : (a) Guarantor has full
power and authority to enter into this Guaranty; and (b) this Guaranty
constitutes the valid and binding obligation of Guarantor enforceable in
accordance with its terms. If any representation or warranty made by Guarantor
with respect to this Guaranty is found to have been false in any material
respect at the time it was made, or Guarantor is dissolved or loses its
corporate charter by forfeiture or is merged into, or has conveyed
substantially all of its assets to, another person, or effective control of
Guarantor=s voting stock is transferred to another person without the prior
written consent of Creditor, or Guarantor becomes insolvent or any bankruptcy,
reorganization or any dissolution or liquidation proceeding is instituted by
or against Guarantor, and is not dismissed within 60 days, then Guarantor
shall pay to Creditor upon demand the entire unpaid balance of the
Indebtedness as if the entire Indebtedness were then due and payable.
Guarantor waives notice of acceptance of this Guaranty by Creditor and all
notices and demands of every kind to which Guarantor may be entitled,
including without limitation, all demands for payment and notices of
nonpayment, presentment, protest and dishonor and notice of disposition of any
collateral under UCC 9-504. Guarantor further waives any defense arising by
reason of the disability of Debtor, any lack of authority of Debtor with
respect to the Indebtedness, the invalidity, illegality, or lack of enforce
ability of the Indebtedness, the failure of Creditor to acquire title to any
]eased equipment or a security interest in any collateral or to perfect or
maintain any interest therein or the loss or impairment of the liability of
Debtor. Payment of any sums now or hereafter owing to Guarantor by Debtor is
hereby subordinated in right of payment to the payment of the Indebtedness.
Guarantor agrees to deliver to Creditor within ninety (90) days after the end
of each fiscal year of Guarantor a statement of Guarantor's financial
condition for such year prepared by an independent certified public
accountant, including a balance sheet and profit and loss statement.
Without notice to Guarantor, and without affecting the obligations of
Guarantor under this Guaranty, Creditor may from time to time (a) change the
terms of the Indebtedness, including but not limited to, renewal, extension,
refinancing, modification of the interest rate or change in the manner or
place of payment; (b) accelerate the maturity of, or release or compromise any
Indebtedness or release any guarantor or release or impair any security for
this Guaranty or the Indebtedness; (c) proceed against any Guarantor for
payment of the Indebtedness without first proceeding against the Debtor or any
other guarantor or any security for the Indebtedness; (d) abstain from taking
any action or exercising any right against Debtor, the security or any other
guarantor; (e) accept security for the Indebtedness; or (f) foreclose
(judicially or non-judicially) any deed of trust, mortgage or other security
for the Indebtedness. The rights of Creditor are cumulative and shall not be
exhausted by the exercise of any rights against Guarantor or Debtor or any
security until all Indebtedness has been paid.
This Guaranty shall be unaffected by any bankruptcy, reorganization or
insolvency of Debtor, or any disaffirmance or rejection of the Indebtedness by
a trustee of Debtor, or any amendment, modification, stay or cure of
Creditor's rights which may occur in any bankruptcy or reorganization case or
proceeding concerning Debtor, whether permanent or temporary, and whether
assented to by Creditor.
If a claim is made at any time for repayment of any amounts received by
Creditor from any source on account of the Indebtedness and Creditor repays or
becomes liable to repay such claim by reason of any judgment or order of any
court or administrative body, or any settlement or compromise thereof,
Guarantor shall be liable to Creditor hereunder or such amounts to the same
extent as Guarantor would have been liable to Creditor if such amounts had
never been received by Creditor, notwithstanding the termination of this
Guaranty or the cancellation of any note or other instruments evidencing the
Indebtedness.
Creditor may assign this Guaranty in whole or in part. No Assignment by
Creditor shall operate to extinguish or diminish the liability of Guarantor
pursuant to this Guaranty.
This writing is intended to be an integrated and final expression of this
Guaranty agreement and also is intended to be a complete and exclusive
statement of the terms of that agreement. No course of prior dealing between
the parties, no usage of trade and no parol or extrinsic evidence of any
nature shall be used to supplement, modify or vary any of the terms hereof. If
any provision of this Guaranty is in conflict with any applicable statute,
rule or law, such provision shall be null and void to the extent it is in
conflict, without invalidating any other provision hereof. There are no
conditions to the full effectiveness of this Guaranty.
Any notice or demand required or permitted to be given by Creditor to
Guarantor may be given by first class mail, postage prepaid, at the mailing
address shown below until Guarantor informs Creditor in writing of a different
address.
The obligations of Guarantor shall be binding upon its successors and assigns
and inure to the benefit of the successors and assigns of Creditor. This
Guaranty shall be governed by and construed in accordance with the internal
laws (without applying the conflicts of law rules) of the State of Washington.
GUARANTOR HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY, THE
INDEBTEDNESS, OR ANY DEALINGS BETWEEN GUARANTOR AND CREDITOR RELATING TO THE
SUBJECT MATTER OF THIS GUARANTY.
Dated this 3rd day of December, 1996
GUARANTOR: California Landscape Contractors Association
Welfare Insurance Trust Fund Mailing address of Guarantor:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustee ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
PLEDGE AGREEMENT
(CORPORATION)
EXHIBIT E
PLEDGE AGREEMENT, dated December 3, 1996, made by California Landscape
Contractors Association Welfare Trust Fund (the "▇▇▇▇▇▇▇'), to SAFECO CREDIT
COMPANY, INC., a Washington corporation ('SAFECO").
PRELIMINARY STATEMENTS:
(1) The ▇▇▇▇▇▇▇ is the owner of the shares of stock (the "Shares")
described in 'Schedule I hereto and issued by Birch Financial. Inc., a
California corporation (the "Borrower').
(2) SAFECO and the Borrower have entered into a Credit and Security
Agreement dated November 15, 1996(the "Credit Agreement'). Capitalized terms
not otherwise defined herein shall have the meanings assigned to them in the
Credit Agreement. The pledge of stock provided in this Pledge Agreement is a
condition precedent to SAFECO's obligation to make Advances under the Credit
Agreement.
NOW, THEREFORE, in order to induce SAFECO to make Advances under the Credit
Agreement- the ▇▇▇▇▇▇▇ hereby agrees as follows:
SECTION 1. Pledge The ▇▇▇▇▇▇▇ hereby pledges to SAFECO, and grants to SAFECO a
security interest in, the following (the "Pledged Collateral"):
(a) the Shares and the certificates representing the Shares, and all
dividends. cash, instruments, and other property from time to time received,
receivable, or otherwise distributed in respect of or in exchange for any or
all of the Shares, and
(b) all additional shares of stock of the Borrower from time to time
acquired by the ▇▇▇▇▇▇▇ in any manner. and the certificates representing such
additional shares, for all dividends, cash, instruments. and other property
from time to time received, receivable. or otherwise distributed in respect of
or in exchange for any or all of such shares.
SECTION 2. Security for Obligations This Agreement secures the payment of
any and all obligations of the Borrower, under the Credit Agreement and the
Note, and all obligations of the ▇▇▇▇▇▇▇ under this Agreement and the
Guaranty, including in each instance any extensions, replacements,
modifications, substitutions, amendments, and renewals of any such document,
and in each instance whether such obligations are direct or indirect absolute
or contingent due or to become due, now existing or hereafter arising (all
such obligations of the Borrower and the ▇▇▇▇▇▇▇ being the "Obligations").
SECTION 3. Delivery of Pledged Collateral . The certificates or instruments
representing or evidencing the Pledged Collateral shall be delivered to and
held by or on behalf of SAFECO pursuant hereto and shall be in suitable form
for transfer by delivery, or shall be accompanied by duly executed instruments
of transfer or assignment in blank, all in form and substance satisfactory to
SAFECO. SAFECO shall have the right at any time in its discretion and without
notice to the ▇▇▇▇▇▇▇, to transfer to or to register in the name of SAFECO any
or all of the Pledged Collateral, subject only to the revocable rights
specified in Section 6(a).
SECTION 4. Representations and Warranties. The ▇▇▇▇▇▇▇ represents and
warrants to SAFECO as follows:
(a) The shares represent 50% of the issued and outstanding common stock
of Birch Financial, Inc. which corporation has no other classes of equity
outstanding.
(c) The ▇▇▇▇▇▇▇ has full power and authority to enter into this
Agreement, and all action necessary to authorize entry into this Agreement and
the granting of a security interest in the Pledged Collateral has been taken;
(d) The pledge of the Pledged Collateral pursuant to this Agreement
creates a valid and perfected first priority security interest in the Pledged
Collateral in favor of SAFECO, securing the payment of the Obligations;
(e) No authorization, approval, or other action by, and no notice to or
filing with, any Governmental authority or regulatory body is required either
(i) for the pledge by the ▇▇▇▇▇▇▇ of the Pledged Collateral pursuant to this
Agreement or for the execution. delivery or performance of this Agreement by
the ▇▇▇▇▇▇▇; or (ii) or the exercise by SAFECO of the voting or other rights
provided for in this Agreement or the remedies in respect of the Pledged
Collateral pursuant to this Agreement (except as may be required in connection
with such disposition by laws affecting the offering and sale of securities
generally).
Section 5. Further Assurances. The ▇▇▇▇▇▇▇, at its sole expense, will
promptly execute and deliver all further instruments and documents, and take
all further actions, that may be necessary or desirable or that SAFECO may
request from time to time in order to perfect and protect the security
interest granted or purported to be granted hereby or to enable SAFECO to
exercise and enforce its rights and remedies hereunder with respect to any
Pledged Collateral.
SECTION 6. Voting., Rights; Dividends; Etc.
(a) So long, as no Event of Default or event which, with the giving of
notice or the lapse of time or both would become an Event of Default, has
occurred:
(i) The ▇▇▇▇▇▇▇ shall be entitled to exercise any and all voting and
other consensual rights Pertaining to the Pledged Collateral for any purpose
not inconsistent with the terms of this Agreement or the Credit Agreement;
provided, however, that the ▇▇▇▇▇▇▇ shall not exercise any such right if, in
SAFECO's judgment, such action would have a material adverse effect on the
value of the Pledged Collateral or any part thereof, and provided further ,
that the ▇▇▇▇▇▇▇ shall give SAFECO at least 10 days' prior written notice of
the manner in which it intends to exercise. or the reasons for refraining from
exercising such right.
(ii) The ▇▇▇▇▇▇▇ shall be entitled to receive and retain any
dividends paid in respect of the Pledged Collateral, provided however, that
any dividends paid other than in cash and any instruments and other property
distributed in respect of or in exchange for any Pledged Collateral, and any
dividends and other distributions paid or payable 'm cash in respect of
Pledged Collateral in connection with a partial or total corporate liquidation
or dissolution or in connection with a reduction of capital, shall be
delivered to SAFECO to hold as Pledged Collateral and shall. if received by
the ▇▇▇▇▇▇▇, be received in trust for the benefit of SAFECO, be segregated,
from the other property and funds of the ▇▇▇▇▇▇▇, and be forthwith delivered
to SAFECO as Pledged Collateral in the same form as so received (with any
necessary endorsement).
(iii) SAFECO shall execute and deliver (or cause to be executed
and delivered) to the ▇▇▇▇▇▇▇ all proxies and other instruments as the ▇▇▇▇▇▇▇
may reasonably request for the purpose of enabling the ▇▇▇▇▇▇▇ to exercise the
voting and other rights which it is entitled to exercise pursuant to paragraph
(i) above and to receive the dividends which it is authorized to receive and
retain pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuance of an Event of
Default or an event which, with the giving of notice or the lapse of time or
both, would become an Event of Default:
(i) All rights of the ▇▇▇▇▇▇▇ to exercise the voting and other
consensual rights which it would otherwise be entitled to exercise pursuant to
Section 6(a)(i) and to receive the dividends which it would otherwise be
authorized to receive and retain pursuant to Section 6(a)(ii) shall cease, and
SAFECO shall have the sole right to exercise such voting and other consensual
rights and to receive and hold such dividends as Pledged Collateral.
(ii) All dividends which are received by the ▇▇▇▇▇▇▇ contrary to
the provisions of paragraph (i) of this Section 6(b) shall be received in
trust for the benefit of SAFECO, shall be segregated from other funds of the
▇▇▇▇▇▇▇, and shall be forthwith paid over to SAFECO) as Pledged Collateral in
the same form as so received (with any necessary endorsement).
SECTION 7. Transfers and Other Liens, Additional Shares
(a) The ▇▇▇▇▇▇▇ agrees that it will not (i) sell or otherwise dispose
of, or grant any option with respect to, any of the Pledged Collateral, or
(ii) create or permit to exist any lien, security interest. or other charge or
encumbrance upon or with respect to any of the Pledged Collateral, except for
the security interest granted under this Agreement.
(b) The ▇▇▇▇▇▇▇ agrees that it (i) will prevent the Borrower from
issuing any stock or other securities in addition to or in substitution ,for
the Pledged Collateral, except to the ▇▇▇▇▇▇▇ and Oak Wood Insurance Company,
Ltd. (ii) will pledge hereunder, immediately upon its acquisition thereof
(directly or indirectly), any and all additional shares of stock or other
securities of Borrower.
SECTION 8. SAFECO Appointed Attorney-in-Fact The ▇▇▇▇▇▇▇ hereby appoints
SAFECO as the ▇▇▇▇▇▇▇'▇ attorney-in-fact, with full authority in the place and
stead of the ▇▇▇▇▇▇▇, and in the name of the ▇▇▇▇▇▇▇ or otherwise, in SAFECO's
discretion to take any action and execute any instrument which SAFECO may deem
necessary or advisable to accomplish the purposes of this Agreement, including
without limitation, the receipt, Endorsement and collection of instruments
made payable to the ▇▇▇▇▇▇▇ representing any dividend or other distribution in
respect of the Pledged Collateral and the giving of give full discharge for
the same.
SECTION 9. SAFECO May Perform. If the ▇▇▇▇▇▇▇ fails to perform any agreement
contained herein, SAFECO may itself perform, or cause performance of, such
agreement, and the expenses of SAFECO incurred in connection therewith shall
be payable by the ▇▇▇▇▇▇▇ under Section 12.
SECTION 10. Reasonable Care. SAFECO shall be deemed to have exercised
reasonable care in the custody and preservation of the Pledged Collateral in
its possession if the Pledged Collateral is accorded treatment substantially
equal to that which SAFECO accords its own property, it being understood that
SAFECO shall not have any responsibility for (i) ascertaining or taking
action with respect to calls, conversions, exchanges, maturities, tenders, or
other matters relative to any Pledged Collateral, whether or not SAFECO has or
is deemed to have knowledge of such matters, or (ii) taking any necessary
steps to preserve rights against any parties with respect, to any Pledged
Collateral.
SECTION 11. Remedies Upon Default If any Event of Default shall have
occurred and be continuing:
(a) SAFECO may exercise in respect of the Pledged Collateral, in
addition to the other rights and, remedies provided for herein or otherwise
available to it, all the rights and remedies of a secured party on default
under the Uniform Commercial Code (the Code") in effect in the State of
Washington at that time, and SAFECO may also, without notice except as
specified below, sell the Pledged Collateral or any part thereof in one or
more parcels at public or private sale on any exchange or association of
broker-dealers, or at any of SAFECO's offices or elsewhere, through a
stockbroker or otherwise, for cash, on credit or for future delivery, and upon
such other terms as SAFECO may deem commercially reasonable. The ▇▇▇▇▇▇▇
agrees that, to the extent notice of sale is required by law, 10 days' advance
notice to the ▇▇▇▇▇▇▇ of the time and place of any public sale or the time
after which any private sale is to be made shall constitute reasonable
notification. SAFECO shall not be obligated to make any sale of Pledged
Collateral regardless of notice of sale having been given. SAFECO may adjourn
any public or private sale from time to time by announcement at the time and
place fixed therefor, and such sale may, without further notice, be made at
the time and place to which it was so adjourned. With respect to any of the
Pledged Collateral that consists of securities not registered under the
securities laws of the United States or any state, the ▇▇▇▇▇▇▇ agrees that it
shall be commercially reasonable for SAFECO to sell the Pledged Collateral to
a buyer who will represent that he or she is purchasing solely for investment
and not with a view to the resale or distribution of such securities, or in
such other manner as counsel for SAFECO may advise to comply with applicable
securities laws.
(b) Any cash held by SAFECO as Pledged Collateral and all cash proceeds
received by SAFECO in respect of any sale of collection from, or other
realization upon all or any part of the Pledged Collateral may, in the
discretion of SAFECO, be held by SAFECO as collateral for, and/or then or at
any time thereafter be applied (after payment of any amounts payable to SAFECO
pursuant to Section 12) in whole or in part by SAFECO against all or any part
of the Obligations in such order as SAFECO shall elect. Any surplus of such
cash or cash proceeds held by SAFECO and remaining after payment in full of
all the Obligations shall be paid over to the ▇▇▇▇▇▇▇ or to whomever may be
lawfully entitled to receive such surplus.
SECTION 12. Expenses. Upon demand, the ▇▇▇▇▇▇▇ will pay to SAFECO the amount
of any and all reasonable expenses, including fees and expenses of its counsel
and of any experts and agents (whether or not litigation is commenced), which
SAFECO may incur in connection with (i) the administration of this Agreement;
(ii) the custody or preservation of, or the collection, sale or other
realization on, any of the Pledged Collateral; (iii) the exercise or
enforcement of any of the rights of SAFECO hereunder: or (iv) the failure by
the ▇▇▇▇▇▇▇ to perform or observe any of the provisions hereof.
SECTION 13. Security Interest Absolute. All rights of SAFECO and all
obligations of the ▇▇▇▇▇▇▇ hereunder shall be absolute and unconditional
irrespective of:
(a) Any lack of validity or enforce ability of the Credit Agreement,
the Note, the Guaranties or any other agreement or instrument relating
thereto;
(b) Any change in the time, manner, or place of payment of. or in any
other term of, all or any of the Obligations, or any other amendment or waiver
of or any consent to any departure from the Credit Agreement, the Note, or the
Guaranties;
(c) Any exchange, release, or non-perfection of any other collateral,
or any release or amendment or waiver of or consent to departure from any
guaranty, for all or any of the Obligations; or
(d) Any other circumstance that might otherwise constitute a defense
available to, or a discharge of. the Borrower or a third party ▇▇▇▇▇▇▇.
SECTION 14. Amendments; Waiver. No amendment or waiver of any provision of
this Agreement nor consent to any departure by the ▇▇▇▇▇▇▇ herefrom shall be
effective unless in writing and signed by SAFECO. Any waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given.
SECTION 15. Addresses for Notices. All notices and other communications
provided for in this Agreement shall be in writing, and mailed (via certified
mail, return receipt requested), taxed or delivered, if to the ▇▇▇▇▇▇▇, at PC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, fax ▇▇▇-▇▇▇-▇▇▇▇, attention: ▇▇▇▇▇▇
▇▇▇▇▇▇-Chief Financial Officer; and if to SAFECO, at SAFECO ▇▇▇▇▇ ▇-▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, fax ▇▇▇-▇▇▇-▇▇▇▇, attention: ▇▇▇▇ ▇▇▇▇▇▇; or as to either
party, at such other address or fax number as that party may specify by
written notice to the other party in accordance with this Section 15. If
mailed, notices and communications shall be effective three days after
deposit. postage prepaid, in the U.S. mail. Faxed notices and communications
shall be effective upon transmission. Notices and communications delivered
other than via U.S. mail or fax transmission shall be effective upon delivery.
SECTION 16. Continuing Security Interest, Transfer of Note. This Agreement
shall create a continuing security interest in the Pledged Collateral and
shall remain in full force and effect until payment in full of the Obligations
(after termination of the Commitment); be binding upon the ▇▇▇▇▇▇▇, its
successors and assigns; and inure to the benefit of SAFECO and its successors,
transferees, and assigns. Without limiting, the Generality of the foregoing,
SAFECO may assign or otherwise transfer the Note to any other person or
entity. Upon the payment in full of the Obligations (after termination of the
Commitment), the ▇▇▇▇▇▇▇ shall be entitled to the return, upon its request and
at its expense, of the Pledged Collateral to the extent not otherwise applied
pursuant to the terms hereof.
SECTION 17. Governing Law: Terms. This Agreement shall be governed by and
consumed in accordance with the laws of the State of Washington. Unless
otherwise defined herein or in the Credit Agreement, terms defined in Article
9 of the Uniform Commercial Code as in effect in the State of Washington shall
have the meaning given to them in such Article 9.
IN WITNESS WHEREOF, the ▇▇▇▇▇▇▇ has caused this Agreement to be duty
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
California Landscape Contractors Association
Welfare Insurance Trust Fund
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------
Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------
Trustee
AMENDMENT NO. 1
TO
CREDIT AND SECURITY AGREEMENT
This Amendment No. I ('Amendment') modifies and amends that certain Credit and
Security Agreement dated November 15, 1996 (the "Credit and Security
Agreement") among SAFECO Credit Company, Inc., a Washington corporation
("SAFECO"), Automated Installment Systems, Inc., a Missouri corporation
("AIS"), and Birch Financial Inc., a California corporation ("Borrower").
For good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agreed that the Credit and Security Agreement
shall be modified as follows:
1. Article II is amended to add the following new section:
2.4 Notwithstanding anything in this Agreement to the contrary,
SAFECO shall not unreasonably withhold its agreement to subordinate its first
lien security position in the Collateral (as defined in Section 3.1) with
respect to specific premium finance contracts intended to secure loans from
private parties affiliated with Borrower.
2. Section 1.2(A) is amended in its entirety to read as follows:
(A) One bank account (the "Deposit Account') shall be designated
for the deposit of all payments on Premium Finance Agreements (whether or not
included in the Borrowing Base at any time) and any returns of unearned
premiums with respect to canceled insurance policies subject to such
Agreements. SAFECO shall be the only person authorized to make withdrawals
from the Deposit Account. Payments received on any Premium Finance Agreements
with respect to which SAFECO has subordinated its security interest shall be
advanced to Borrower in accordance with section 1.1, once the funds have
cleared through the Deposit Account, following the submittal to SAFECO of a
Borrowing Base Certificate.
3. Section 1.1 (B) is amended by renumbering paragraphs (ix) and (x) and
adding a new paragraph (x), as follows:
(ix) accounts receivable constituting unearned interest;
(x) accounts receivable with respect to which SAFECO has
subordinated its security position as provided in Section 2.4 of this
Agreement; and
(xi) such other accounts receivable as SAFECO shall, in its sole and
absolute discretion, deem unacceptable.
4. Except to the extent expressly provided in the foregoing modifications,
the provisions of the Credit and Security Agreement shall not be affected by
this Amendment and are ratified and confirmed as though fully set forth
herein.
Dated: 3rd December, 1996
-----------------
SAFECO CREDIT COMPANY, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Its: Asst. Vice Pres.
AUTOMATED INSTALLMENT SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------
Its: President
BIRCH FINANCIAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Its: C.F.O.
AMENDMENT NO. 2
To
CREDIT AND SECURITY AGREEMENT
This ammendment is made as of July 24, 1977 and amends that certain Credit and
Security Agreement dated November 15, 1996, originally among SAFECO Credit
Company, Inc. ("Lender"), Birch Financial, Inc.("Borrower"), California
Landscape Contractors Association Welfare Insurance Trust Fund ("Guarantor"),
Oak Wood Insurance Company, Ltd. ("Guarantor") and Automated Installment
Systems, Inc. ("Loan Agreement"). Said Load Agreement was previously amended
by Amendment No. 1 dated as of December 3, 1996.
The parties now desire to further modify the Loan Agreement to increase the
loan amount and substitute a new promissory note, all set forth below.
1. Paragraph 1.1(A) is amended in its entirety by substitution of the
following: 1.1(A) SAFECO shall, on the terms and stated in this Agreement,
make advances (individual, and "Advance" and collectively, the "Advances") to
Borrower from time to time during the term of this Agreement in an aggregate
amount not to exceed at any time the lesser of (1) the Borrowing Base, as
defined in paragraph (B) below, (ii) Two Million Five Hundred Thousand and
00/100ths Dollars ($2,500,000.00)(the "Commitment"), and (iii) the maximum
amount SAFECO is permitted to lend Borrower under any applicable law, rule, or
regulation. Within the forgoing limits, Borrower may borrow, repay and
reborrow under this Agreement, absent the occurrence of any Event of Default
(as defined in Section 6.1 below).
2. All other terms and conditions of the Load Agreement, as previously
amended, and the documents executed in connection with the Loan Agreement,
including without limitation the Guaranty of California Landscape Contractors
Association Welfare Insurance Trust Fund and Oak Wood Insurance Company, Ltd.
Dated December 3, 1996, shall remain unchanged except to the extent the terms
of this Amendment are necessarily inconsistent with them.
Borrower: Lender:
Birch Financial, Inc. SAFECO Credit Company, Inc.,
a California1 corporation a Washington corporation
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------- ---------------------------------
Title: CFO / CEO Title: AVP
------------------------------- ---------------------------------
Automated Installment Systems, Inc.,
A Missouri corporation
By: /s/ [illegible]
-------------------------------
Title: Chairman
-------------------------------
Guarantor:
California Landscape Contractors Association Oak Wood Insurance Company, Ltd
Insurance Trust Fund
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Trustee By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------- ----------------------------
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trustee Title: Asst. Secretary
------------------------ ---------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
AMENDMENT NO. 3
to
CREDIT AND SECURITY AGREEMENT
This Amendment No. 3 ("Amendment") modifies and amends that certain Credit and
Security Agreement dated November 15, 1996, as previously amended on December
3, 1996 and July 24, 1997 (the "Credit and Security Agreement") among SAFECO
Credit Company, Inc., a Washington corporation ("SAFECO"), Automated
Installment Systems, Inc., a Missouri corporation ("AIS"), and Birch Financial
Inc., a California corporation ("Borrower").
For good and valuable consideration, the receipt of which is hereby
acknowledged, the undersigned agree that the Credit and Security Agreement
shall be modified as follows:
1. Paragraph (A) of Section 1.3 is amended in its entirety to read as
follows:
(A) Each time that Borrower desires an Advance, AIS shall send to Borrower
via SAFECO's proprietary electronic mail system ("Email") a request for an
Advance in a stated amount and a Borrowing Base Certificate (as defined in
Section 1.8). Requests for Advances shall be bifurcated into two parts: (i)
Advances against Borrower's accounts receivable relating to Premium Finance
Agreements in the original principal amount of less than $40,000 per contract
("Standard Advances") and (ii) Advances against Borrower's accounts receivable
relating to Premium Finance Agreements in the original principal amount of
$40,000 or more per contract ("Preferred Advances"). In each case, the
accounts receivable must be eligible for inclusion in the Borrowing Base in
accordance with paragraph (b) of Section 1.1. Borrower shall review the
request for an Advance and the Borrowing Base Certificate and, if approved by
Borrower, forward them to SAFECO by Email.
2. Paragraph (B) of Section 1.8 is amended in its entirety to read as
follows:
(B) A "Borrowing Base Certificate" means a certificate in the form of
Exhibit B or such other form as the parties may agree, prepared by AIS,
approved by Borrower, and submitted to SAFECO to substantiate the Borrowing
Base and any request for an Advance. The Borrowing Base presented on a
Borrowing Base Certificate shall be subdivided into (i) accounts receivable
eligible for a Standard Advance and (ii) accounts receivable eligible for a
Preferred Advance.
3. Section 2.4, which was added by amendment dated December 3, 1996, is
stricken
4. Paragraph (A) of Section 1.2 is amended in its entirety to read as
follows:
(A) One bank account "the "Deposit account") shall be designed for the
deposit of all payments on Premium Finance Agreements (whether or not included
in the Borrowing Base at any time) and any returns of unearned premiums with
respect to cancelled insurance policies subject to such Agreements. SAFECO
shall be the only person authorized to make withdrawals from the Deposit
Account.
5. Subparagraph (x), added by amendment dated December 3, 1996, is stricken
and subparagraph (xi) is renumbered (x).
6. Except to the extent expressly required by the foregoing modifications,
the provisions of the Credit and Security Agreement, as previously amended,
shall remain in effect and are incorporated into this Amendment s though fully
set forth herein.
DATED: 10/8/1997
BORROWER: BIRCH FINANCIAL, INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------
Its CFO / CEO
---------
SAFECO: SAFECO CREDIT COMPANY, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------
Its Asst. Vice Pres.
----------------
AIS: AUTOMATED INSTALLMENT SYSTEMS, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------
Its President
---------
GUARANTORS: CALIFORNIA LANDSCAPE CONTRACTOR ASSOCIATION
INSURANCE TRUST FUND
By /s/ [illegible] CHAIRMAN
----------------------------
Trustee
By /s/ [illegible]
------------------------------
Trustee
OAK WOOD INSURANCE COMPANY, LTD.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Its Pres.
-----
AMENDMENT NO. 4
to
CREDIT AND SECURITY AGREEMENT
This Amendment No. 4 ("Amendment") modifies and amends that certain Credit and
Security Agreement dated November 15, 1996, as previously amended on December
3, 1996, July 24, 1997 and October 8, 1997 (the "Credit and Security
Agreement") among SAFECO Credit Company, Inc., a Washington corporation
("SAFECO"), Automated Installment Systems, Inc., A Missouri ("AIS"), and Birch
Financial Inc., a California corporation("Borrower").
For good and valuable consideration, the receipt of which is hereby
acknowledged, the undersigned agree that the Credit and Security Agreement
shall be modified as follows:
1. Paragraph 1.1(A) SAFECO shall, on the terms stated in this Agreement, make
advances (individually, an "Advance" and collectively, the "Advances") to
Borrower from time to time during the term of this Agreement in an aggregate
amount not to exceed at any time the lesser of (i) the Borrowing Base, as
defined in paragraph (B) below, (ii) Three Million Five Hundred Thousand and
00/100ths Dollars ($3,500,000.00) (the "Commitment"), and (iii) the maximum
amount SAFECO is permitted to lend Borrower under any applicable law, rule, or
regulation. Within the forgoing limits, Borrower may borrow, repay and
reborrow under this Agreement, absent the occurrence of any Event of Default
(as defined in Section 6.1 below).
2. Except to the extent expressly required by the foregoing modifications,
the provisions of the Credit and Security Agreement, as previously amended,
shall remain in effect and are incorporated into this Amendment as though
fully set forth herein.
DATED: July 10, 1998
BORROWER: SAFECO: AIS:
BIRCH FINANCIAL, INC. SAFECO CREDIT AUTOMATED INSTALLMENT
COMPANY, INC. SYSTEMS, INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------- ------------------ -----------------------
Its Its AVP Its President
------------------ ---------------- -----------------------
GUARANTORS:
CALIFORNIA LANDSCAPE CONTRACTOR OAK WOOD INSURANCE
ASSOCIATION INSURANCE TRUST FUND COMPANY LTD.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------- -------------------------------
Trustee
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Its Secretary
-------------------------------- -------------------------------
Trustee
AMENDMENT NO. 5
TO
CREDIT AND SECURITY AGREEMENT
This Amendment No. 5 ("Amendment") modifies and amends that certain Credit and
Security Agreement dated November 15, 1996, as previously amended on December
3, 1996, July 24, 1997, October 8, 1997 and July 10, 1998 (the "Credit and
Security Agreement") among SAFECO Credit Company, Inc. a Washington
corporation ("SAFECO"), Automated Installment Systems, Inc., a Missouri
corporation ("AIS"), and Birch Financial Inc., a California corporation
("Borrower").
For good and valuable consideration, the receipt of which is hereby
acknowledged, the undersigned agree that the Credit and Security Agreement
shall be modified as follows:
1. Paragraph (A) of Section 1.3 is amended in its entirety to read as
follows:
(A) Each time that Borrower desires an Advance, AIS shall send to
Borrower via SAFECO's proprietary electronic mail system ("Email") a request
for an Advance in a stated amount and a Borrowing Base Certificate (as defined
in Section 1.8). Requests for Advances shall be bifurcated into two parts:
(i) Advances against Borrower's accounts receivable relating to Premium
Finance Agreements in the original principal amount of less than $20,000 per
contract ("Standard Advances") and (ii) Advances against Borrower's accounts
receivable relating to Premium Finance Agreements in the original principal
amount of $20,000 or more per contract ("Preferred Advances"). In each case,
the accounts receivable must be eligible for inclusion in the Borrowing Base
in accordance with paragraph (b) of Section 1.1. Borrower shall review the
request for an Advance and the Borrowing Base Certificate and, if approved by
Borrower, forward them to SAFECO by Email.
2. Except to the extent expressly required by the foregoing modifications,
the provisions of the Credit and Security Agreement, as previously amended,
shall remain in effect and are incorporated into this Amendment as though
fully set forth herein.
DATED: 3 July, 2000
-----------------
BORROWER: SAFECO: AIS:
BIRCH FINANCIAL, INC. SAFECO CREDIT AUTOMATED INSTALLMENT
COMPANY SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------- ------------------ ------------------
Its: President/C.F.O. Its: Asst. Vice President Its: Chairman
GUARANTORS:
GOLDEN OAK CO-OP OAKWOOD INSURANCE
CORPORATION COMPANY, LTD.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------- --------------------
Its: President/C.F.O. Its: Secretary