REVOLVING CREDIT LOAN AND SECURITY AGREEMENT Dated as of August 18, 2006 among FREEDOM FINANCIAL GROUP, INC. & T.C.G. - THE CREDIT GROUP INC. (collectively, the Borrower) AND HEARTLAND BANK (the Lender) TABLE OF CONTENTS

 

b. to notify the Account Debtors or obligors under any Installment Contract or Receivable of the assignment of such Installment Contract or Receivable to the Lender and to direct such Account Debtor or obligors to make payment of all amounts due or to become due thereunder directly to the Lender and, upon such notification and at the expense of the Borrower, to enforce collection of any such Installment Contract or Receivable and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as the Borrower might have done.

 

Section 8.3 Disputes and Adjustments. 

 

a. On a monthly basis, at the same time as Borrower delivers the Borrowing Base Certificate, Borrower shall deliver a report detailing the delinquency, charge off and collection activity on the Eligible Installment Contracts for the preceding calendar month.

 

b. The Borrower may, in the ordinary course of business and prior to a Default or an Event of Default, (i) grant any extension of time for payment of any Installment Contract or Receivable, (ii) sell any Installment Contract, or (iii) compromise, compound or settle any Installment Contract or Receivable for less than the full amount thereof or release wholly or partly any Person liable for the payment thereof or allow any credit or discount whatsoever thereon.

 

Section 8.4 Underwriting Guidelines.The Borrower will not materially change its underwriting guidelines, systems, processes or procedures without receiving the written approval of Lender.

 

Section 8.5 Operating Account. Borrower shall maintain its primary operating account with Lender, and such operating account must be opened by Borrower within thirty (30) days after the Effective Date. All payments hereunder are to be debited by Lender from such operating account.

 

Section 8.6 Ownership and Defense of Title.

 

a. Except for Permitted Liens, the Borrower shall at all times be the sole owner of each and every item of Collateral and shall not create any Lien on, or sell, lease, exchange, assign, transfer, pledge, hypothecate, grant a security interest or security title in or otherwise dispose of, any of the Collateral or any interest therein, except for cash or on open account or on terms of payment ordinarily extended to its customers and except as otherwise expressly contemplated herein. The inclusion of “proceeds” of the Collateral under the Security Interest shall not be deemed a consent by the Lender to any other sale or other disposition of any part or all of the Collateral.

 

b. The Borrower shall defend its title in and to the Collateral and shall defend the Security Interest and priority thereof in the Collateral against the claims and demands of all Persons other than Lender.

 

c. In addition to, and not in derogation of, the foregoing and the requirements of any of the Security Documents, the Borrower shall (i) protect and preserve all properties material to its business, including Intellectual Property and maintain all tangible property in good and workable condition in all material respects, with reasonable allowance for wear and tear, and (ii) from time to time make or cause to be made all needed and appropriate repairs, renewals, replacements and additions to such properties necessary for the conduct of its business, so that the business carried on in connection therewith may be properly and advantageously conducted at all times.

 

 

Section 8.7 Insurance. 

 

a. The Borrower shall, consistent with standard industry practice, at all times maintain insurance on the Collateral, if applicable, against loss or damage by fire, theft, burglary, pilferage, loss in transit and such other hazards as the Lender shall reasonably specify, in amounts and under policies issued by insurers acceptable to the Lender. All premiums on such insurance shall be paid by the Borrower and copies of the policies delivered to the Lender. The Borrower will not use or authorize the insured Collateral to be used in violation of any applicable law or in any manner which might render inapplicable any insurance coverage. Notwithstanding the foregoing, Borrower shall not be required to maintain insurance on any motor vehicle or other collateral securing the Installment Contracts.

 

b. All insurance policies required under Section 8.7 shall name the Lender as an additional named insured and shall contain “New York standard” loss payable clauses in the form submitted to the Borrower by the Lender, or otherwise in form and substance satisfactory to the Lender, naming the Lender as loss payee as its interests may appear, and providing that (i) all proceeds thereunder shall be payable to the Lender, (ii) no such insurance shall be affected by any act or neglect of the insured or owner of the property described in such policy, and (iii) such policy and loss payable clauses may not be cancelled, amended or terminated unless at least thirty (30) days’ prior written notice is given to the Lender.

 

c. Any proceeds of insurance referred to in this Section 8.7 which are paid to the Lender shall be, at the option of the Lender in its sole discretion applied to the payment or prepayment of the Secured Obligations or delivered to the Borrower.

 

d. The Borrower shall at all times maintain, in addition to the insurance required by Section 8.7(a) or any of the Security Documents, insurance with responsible insurance companies against such risks and in such amounts as is customarily maintained by similar businesses or as may be required by applicable law, including such public liability, products liability, third party property damage and business interruption insurance as is consistent with reasonable business practices, and from time to time deliver to the Lender upon its request a detailed list of the insurance then in effect, stating the names of the insurance companies, the amounts and rates of the insurance, the dates of the expiration thereof and the properties and risks covered thereby.

 

Section 8.8 Location of Offices and Collateral. 

 

a. The Borrower will not change the location of its chief executive office or the place where it keeps its books and records relating to the Collateral or change its name, identity or corporate structure without giving the Lender thirty (30) days’ prior written notice thereof.

 

b. All Equipment, other than motor vehicles, will at all times be kept by the Borrower at the current locations of Borrower, and shall not, without the prior written consent of the Lender, be removed therefrom, excepting computers and other Equipment that typically have been kept and used outside of Borrower’s current locations.

 

Section 8.9 Records Relating to Collateral. The Borrower will at all times (i) keep complete and accurate records of Receivables and Installment Contracts on a basis consistent with past practices of the Borrower, itemizing and describing the kind, type, amount and collateral of such Receivable and Installment Contracts, and (ii) keep complete and accurate records of all other Collateral.

 

Section 8.10 Inspection and Audit. The Lender (by any of its officers, employees or agents) shall have the right at any time or times to (a) visit the properties of the Borrower, inspect and audit the Collateral and the other assets of the Borrower and its Subsidiaries and inspect and make extracts from the books and records of the Borrower and its Subsidiaries, including, but not limited to, management letters prepared by independent accountants, all during customary business hours at such premises, (b) discuss the Borrower’s business, assets, liabilities, financial condition, results of operations and business prospects, insofar as the same are reasonably related to the rights of the Lender hereunder or under any of the Loan Documents, with the Borrower’s and its Subsidiaries’ (i) principal officers, and (ii) independent accountants and other professionals providing services to the Borrower, and (c) verify the amount, quantity, value and condition of, or any other matter relating to, any of the Collateral and in this connection to review, audit and make extracts from all records and files related to any of the Collateral. The Borrower will deliver to the Lender any instrument necessary to authorize an independent accountant or other professional to have discussions of the type outlined above with the Lender or for the Lender to obtain records from any service bureau maintaining records on behalf of the Borrower. The costs and expenses of the foregoing audits shall be paid by Borrower.

 

 

Section 8.11 Maintenance of Equipment.The Borrower shall maintain all physical property that constitutes Equipment in good and workable condition in all material respects, with reasonable allowance for wear and tear, and shall exercise proper custody over all such property.

 

Section 8.12 Information and Reports.

 

a. Schedule of Installment Contracts. The Borrower shall deliver to the Lender (i) on or before the Effective Date, a Schedule of Installment Contracts as of a date not more than three (3) Business Days prior to the Effective Date setting forth a detailed list of all of its then existing Installment Contracts, specifying the name of and the balance due from each Account Debtor obligated on an Installment Contract so listed, and (ii) no later than ten (10) days after the end of each accounting month of the Borrower, a Schedule of Installment Contracts as of the last Business Day of the Borrower’s immediately preceding accounting month setting forth (A) a detailed list of all the Borrower’s then existing Installment Contracts, specifying the name of and the balance due from each Account Debtor obligated on an Installment Contract so listed and (B) a reconciliation to the Schedule of Installment Contracts delivered in respect of the next preceding accounting month.

 

b. Borrowing Base Certificate. The Borrower shall deliver to the Lender not later than three (3) Business Days after the last day of each accounting month of Borrower a Borrowing Base Certificate prepared as of the close of business on the last Business Day of such accounting month.

 

c. Compliance Certificate. The Borrower shall deliver to the Lender not later than fifteen (15) calendar days after the last day of each accounting month of Borrower a Compliance Certificate prepared as of the close of business on the last Business Day of such accounting month.

 

d. Certification. Each of the schedules delivered to the Lender pursuant to this Section 8.12 shall be certified by the Chief Financial Officer of the Borrower to be true, correct and complete as of the date indicated thereon.

 

e. Other Information. The Lender may, in its discretion, from time to time require the Borrower to deliver the schedules described in Section 8.12 (a), (b), (c) and (d) more or less often and on different schedules than specified in such Section, and the Borrower will comply with such reasonable requests. The Borrower shall also furnish to the Lender such other information with respect to the Collateral as the Lender may from time to time reasonably request.

 

Section 8.13 Power of Attorney. The Borrower hereby appoints the Lender as its attorney, with power, during a continuation of an Event of Default (a) to endorse the name of the Borrower on any checks, notes, acceptances, money orders, drafts or other forms of payment or security that may come into the Lender’s possession, and (b) to sign the name of the Borrower on any invoice or bill of lading relating to any Collateral, on any drafts against customers related to letters of credit, on schedules and assignments of Installment Contracts furnished to the Lender by the Borrower, on notices of assignment, financing statements and other public records relating to the perfection or priority of the Security Interest or verifications of account and on notices to or from customers.

 

 

 

Until the Loan has been terminated and all the Secured Obligations have been indefeasibly paid in full, unless the Lender shall otherwise consent in the manner provided for in Section 13.10, each Borrower will:

 

Section 9.1 Preservation of Existence and Similar Matters. Preserve and maintain its existence as a corporation, and its rights, franchises, licenses and privileges in the jurisdiction of its incorporation and qualify and remain qualified as a foreign business entity and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification or authorization.

 

Section 9.2 Compliance with Applicable Law. Comply with all applicable laws relating to the Borrower.

 

Section 9.3 Conduct of Business. Engage only in businesses in substantially the same fields as the businesses conducted on the Effective Date.

 

Section 9.4 Payment of Taxes and Claims. Pay or discharge when due (a) all taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits or upon any properties belonging to it, and (b) all lawful claims of materialmen, mechanics, carriers, warehousemen and landlords for labor, materials, supplies and rentals which, if unpaid, might become a Lien on any properties of the Borrower or such Subsidiary, except that this Section 9.4 shall not require the payment or discharge of any such tax, assessment, charge, levy or claim which is being contested in good faith by appropriate proceedings and for which adequate reserves have been established on the appropriate books.

 

Section 9.5 Accounting Methods and Financial Records. Maintain a system of accounting, and keep such books, records and accounts (which shall be true and complete), as may be required or as may be necessary to permit the preparation of financial statements in accordance with GAAP consistently applied, or as required by applicable government regulations.

 

Section 9.6 Use of Proceeds. a. Use the proceeds of all Advances only for working capital and general corporate and operating purposes, and

 

b. Not use any part of such proceeds to purchase or carry, or to reduce or retire or refinance any credit incurred to purchase or carry, any margin stock (within the meaning of Regulation U or X of the Board of Governors of the Federal Reserve System) or for any other purpose which would involve a violation of such Regulation U or X or of such Board of Governors or for any other purpose prohibited by law or by the terms and conditions of this Agreement.

 

Section 9.7 Hazardous Waste and Substances; Environmental Requirements. In addition to, and not in derogation of, the requirements of Section 9.2 and of the Security Documents, (i) comply with all laws, governmental standards and regulations applicable to the Borrower or to any of its assets in respect of occupational health and safety laws, rules and regulations and Environmental Laws, (ii) promptly notify the Lender of its receipt of any notice of a violation of any such law, rule, standard or regulation, and (iii) indemnify and hold the Lender harmless from all loss, cost, damage, liability, claim and expense incurred by or imposed upon the Lender on account of the Borrower’s failure to perform its obligations under this Section 9.7.

 

 

Section 9.8 Revisions or Updates to Schedules. Should any of the information or disclosures provided on any of the Schedules originally attached hereto become outdated or incorrect in any material respect, the Borrower shall provide promptly to the Lender such revisions or updates to such Schedule(s) as may be necessary or appropriate to update or correct such Schedule(s); provided that no such revisions or updates to any Schedule(s) shall be deemed to have cured any breach of warranty or representation resulting from the inaccuracy or incompleteness of any such Schedule(s) unless and until the Lender, in its sole discretion, shall have accepted in writing such revisions or updates to such Schedule(s).

 

Section 9.9 Accuracy of Information. All written information, reports, statements and other papers and data furnished to the Lender, whether pursuant to Article 10 or any other provision of this Agreement or any of the other Loan Documents, shall be, at the time the same is so furnished, complete and correct in all material respects to the extent necessary to give the Lender true and accurate knowledge of the subject matter.

 

 

Until the Loan has been terminated and all the Secured Obligations have been indefeasibly paid in full, unless the Lender shall otherwise consent in the manner set forth in Section 13.10, each Borrower will furnish to the Lender at the Lender’s Office:

 

SECTION 10.1 Financial Statements.

 

a. Year-End Statements. As soon as available, but in any event within ninety (90) days after the end of each fiscal year of Borrower, copies of the Securities and Exchange Commission (“SEC”) 10-KSB Report of Borrower.

 

b. Quarterly Statements. As soon as available, but in any event within forty-five days after the end of each of the first three quarters of each fiscal year of Borrower, the SEC 10-QSB Report of Borrower.

 

c. Other. Upon request of Lender, such other financial information of Borrower, whether public or private information, as Lender may reasonable request.

 

d. Federal Income Tax Returns. As soon as available, but in any event within ten (10) days after filing, the federal income tax returns for the preceding fiscal year of Borrower (including all Schedules to each return).

 

All such financial statements and documents delivered pursuant to this Section 10.1 shall be complete and correct in all material respects and all such financial statements referred to in this Section 10.1 shall be prepared in accordance with applicable federal regulations. In addition, the Borrower authorizes the Lender to discuss the financial condition of the Borrower with the Borrower’s independent certified public accountants and agrees that such discussion or communication shall be without liability to either the Lender or the Borrower’s independent certified public accountants.

 

Section 10.2 Officer’s Certificate. Together with each delivery of financial statements included within the report required by Section 10.1, a certificate of the Borrower’s President or chief financial officer addressed to Lender, (a) stating that, based on an examination sufficient to enable him to make an informed statement, no Default or Event of Default exists or, if such is not the case, specifying such Default or Event of Default and its nature, when it occurred, whether it is continuing and the steps being taken by the Borrower with respect to such Default or Event of Default, and (b) setting forth the calculations necessary to establish whether or not the Borrower was in compliance with the covenants contained in Section 11.1, Section 11.2, and Section 11.5 as of the date of such statements.

 

 

Section 10.3 Copies of Other Reports.

 

a. Promptly upon receipt thereof, copies of all reports, if any, submitted to the Borrower or its Board of Directors by its independent public accountants, including, without limitation, all management reports.

 

b. Promptly upon preparation and filing of the same, copies of any other filings with the SEC.

 

c. From time to time and promptly upon each request, such forecasts, data, certificates, reports, statements, opinions of counsel, documents or further information regarding the business, assets, liabilities, financial condition, results of operations or business prospects of the Borrower as the Lender may reasonably request. The rights of the Lender under this Section 10.3 are in addition to and not in derogation of its rights under any other provision of this Agreement or the Loan Document.

 

Section 10.4 Notice of Litigation and Other Matters. Prompt notice of:

 

a. the commencement, to the extent the Borrower is aware of the same, of all proceedings and investigations by or before any governmental or nongovernmental body and all actions and proceedings in any court or before any arbitrator against the Borrower or any of its property, assets or businesses which might, singly or in the aggregate, cause a Default or an Event of Default or have a Materially Adverse Effect,

 

b. any amendment of the articles of incorporation or the by-laws of the Borrower,

 

c. any change in the business, assets, liabilities, financial condition, results of operations or business prospects of the Borrower or any Affiliate of the Borrower which has had or may reasonably be expected to have any Materially Adverse Effect and any change in the executive officers of the Borrower, and

 

d. any (i) Default or Event of Default, or (ii) event that constitutes or that, with the passage of time or giving of notice or both, would constitute a default or event of default by the Borrower under any material agreement (other than this Agreement) to which the Borrower is a party or by which the Borrower or any of its property may be bound if the exercise of remedies thereunder by the other party to such agreement would have, either individually or in the aggregate, a Materially Adverse Effect.

 

Section 10.5 ERISA.As soon as possible and in any event within 30 days after the Borrower knows, or has reason to know, that:

 

a. any Termination Event with respect to a Benefit Plan has occurred or will occur, or

 

b. the aggregate present value of the Unfunded Vested Accrued Benefits under all Benefits Plans or Multiemployer Plans has increased to an amount in excess of $50,000, a certificate of the President or the chief financial officer of the Borrower setting forth the details of such of the events described in clauses (a) through (b) as applicable and the action which is proposed to be taken with respect thereto and, simultaneously with the filing thereof, copies of any notice or filing which may be required by the PBGC or other agency of the United States government with respect to such of the events described in clauses (a) through (b) as applicable.

 

 

 

Until the Loan has been terminated and all the Secured Obligations have been indefeasibly paid in full, unless the Lender shall otherwise consent in the manner set forth in Section 13.10, the Borrower will not directly or indirectly:

 

Section 11.1 Financial Ratio. Permit, as of the end of each fiscal quarter of Borrower the minimum Net Worth of Borrower at any time to be less than Ten Million Dollars $10,000,000.

 

Section 11.2 Indebtedness. Create, assume, or otherwise become or remain obligated in respect of, or permit or suffer to exist or to be created, assumed or incurred or to be outstanding any Indebtedness for Money Borrowed, except for Permitted Indebtedness and for the Secured Obligations.

 

Section 11.3 Guaranties. Become or remain liable with respect to any Guaranty of any obligation of any other Person.

 

Section 11.4 Investments, Subsidiary. Acquire, after the Agreement Date, any Business Unit or Investment or, after such date, permit any Investment to be outstanding, other than Permitted Investments, or transfer any assets to or contribute any capital into Freedom Financial Group Delaware, Inc., a Missouri corporation.

 

Section 11.5 Capital Expenditures. Make or incur any Capital Expenditures, except that the Borrower may make or incur Capital Expenditures in any fiscal year in an amount not to exceed, in the aggregate, $75,000.

 

Section 11.6 Restricted Distributions and Payments, Etc. Declare or make any Restricted Distribution or Restricted Payment, except for any distribution or payment to Mr. Jerry Fenstermaker arising from his disability pursuant to that certain Employment Agreement dated September 17, 2004.

 

Section 11.7 Merger, Consolidation and Sale of Assets. Merge or consolidate with any other Person or sell, lease or transfer or otherwise dispose of all, or any portion of its assets (other than in the ordinary course of business), to any Person, without obtaining the Lender’s written consent prior to such merger, consolidation, sale, lease, transfer or other disposal and complying with Section 2.6 of this Agreement.

 

Section 11.8 Transactions with Affiliates. Effect any transaction with any Affiliate on a basis less favorable to the Borrower than would be the case if such transaction had been effected with a Person not an Affiliate.

 

Section 11.9 Liens. Create, assume or permit or suffer to exist or to be created or assumed any Lien on any of the property or assets of the Borrower, real, personal or mixed, tangible or intangible, except for Permitted Liens.

 

Section 11.10 Operating Leases. Enter into any lease other than a Capitalized Lease and an occupancy lease for its ordinary corporate office purposes.

 

Section 11.11 Benefit Plans. Permit, or take any action which would result in, the aggregate present value of the Unfunded Vested Accrued Benefits under all Benefit Plans of the Borrower to exceed $50,000.

 

Section 11.12 Sales and Leasebacks. Enter into any arrangement with any Person providing for the leasing from such Person of real or personal property which has been or is to be sold or transferred, directly or indirectly, by the Borrower to such Person.

 

 

Section 11.13 Amendments of Other Agreements. Amend in any way the interest rate or principal amount or schedule of payments of principal and interest with respect to any Indebtedness (other than the Secured Obligations) other than to reduce the interest rate or extend the schedule of payments with respect thereto.

 

Section 11.14 Split, Subdivision or Combination of Shares. Subdivide its outstanding Shares, by split-up or otherwise, or combine its outstanding Shares, or issue additional shares of its capital stock in payment of a stock dividend in respect of its Shares, without proportionately increasing the number of shares issuable upon the exercise of the Warrant, or proportionately decreasing the same in the case of a combination, provided the foregoing shall not apply until the conversion specified in Section 6.1(x) has been completed.

 

Section 11.15 Warrants. Intentionally Deleted.

 

Section 11.16 Change Senior Management. Change the senior management of the Borrower existing as of the date of this Agreement, including without limitation Jerald L. Fenstermaker.

 

 

Section 12.1 Events of Default. Each of the following shall constitute an Event of Default, whatever the reason for such event and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment or order of any court or any order, rule or regulation of any governmental or nongovernmental body:

 

a. Default in Payment of Loan. The Borrower shall default in any payment of principal of, or interest on, the Loan or Note when and as due (whether at maturity, by reason of acceleration or otherwise), and such default shall continue for five (5) Business Days after the due date.

 

b. Other Payment Default. The Borrower shall default in the payment, as and when due, of principal of or interest on, any other Secured Obligation, and such default shall continue for five (5) Business Days after the due date.

 

c. Warrant Default. A default in the performance or observance of any term, covenant, condition or agreement contained in the Warrant or Registration Rights Agreement and the expiration of any applicable cure period.

 

d. Misrepresentation. Any representation or warranty made or deemed to be made by the Borrower under this Agreement or any other Loan Document or any amendment hereto or thereto shall at any time prove to have been incorrect or misleading in any material respect when made.

 

e. Default in Performance. The Borrower shall default (i) in the performance or observance of any term, covenant, condition or agreement contained in Articles 6, 7, 8, 9, 10 or 11; or (ii) in the performance or observance of any term, covenant, condition or agreement contained in any other provision of this Agreement (other than as specifically provided for otherwise in this Section 12.1) and such default shall continue for a period of 30 days after written notice thereof has been given to the Borrower by the Lender.

 

f. Indebtedness Cross-Default. (i) The Borrower shall fail to pay when due and payable (and the expiration of any applicable cure period) the principal of or interest on any Indebtedness (other than the Loan or Note) where the principal amount of such Indebtedness is in excess of $25,000, or (ii) the maturity of any such Indebtedness shall have (A) been accelerated in accordance with the provisions of any indenture, contract or instrument providing for the creation of or concerning such Indebtedness, or (B) been required to be prepaid prior to the stated maturity thereof, or (iii) any event shall have occurred and be continuing which, with or without the passage of time or the giving of notice, or both, would permit any holder or holders of such Indebtedness, any trustee or agent acting on behalf of such holder or holders or any other Person so to accelerate such maturity.

 

 

g. Other Cross-Defaults. The Borrower shall default in the payment when due or in the performance or observance of any material obligation or condition of any agreement, contract or lease (other than the Security Documents or any such agreement, contract or lease relating to Indebtedness), (and the expiration of any applicable cure period) if the exercise of remedies thereunder by the other party to such agreement could have a Materially Adverse Effect.

 

h. Voluntary Bankruptcy Proceeding. After the Agreement Date, either Borrower shall (i) commence a voluntary case under the federal bankruptcy laws (as now or hereafter in effect), (ii) commence a proceeding seeking to take advantage of any other laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding up or composition for adjustment of debts, (iii) consent to or fail to contest in a timely and appropriate manner any petition filed against it in an involuntary case under such bankruptcy laws or other laws, (iv) apply for or consent to, or fail to contest in a timely and appropriate manner, the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of a substantial part of its property, domestic or foreign, (v) admit in writing its inability to pay its debts as they become due, (vi) make a general assignment for the benefit of creditors, or (vii) take any corporate action for the purpose of authorizing any of the foregoing.

 

i. Involuntary Bankruptcy Proceeding. After the Agreement Date, a case or other proceeding shall be commenced against any Borrower in any court of competent jurisdiction seeking (i) relief under the federal bankruptcy laws (as now or hereafter in effect) or under any other laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts, or (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of any Borrower or of all or any substantial part of the assets, domestic or foreign, of any Borrower, and such case or proceeding shall continue undismissed or unstayed for a period of 60 consecutive calendar days, or an order granting the relief requested in such case or proceeding against any Borrower (including, but not limited to, an order for relief under such federal bankruptcy laws) shall be entered.

 

j. Loan Documents. Any event of Event of Default under any other Loan Document shall occur or any Borrower shall default in the performance or observance of any material term, covenant, condition or agreement contained in, or the payment of any other sum covenanted to be paid by any Borrower under, any such Loan Document; or any provision of this Agreement, or of any other Loan Document after delivery thereof hereunder, shall for any reason cease to be valid and binding, other than a nonmaterial provision rendered unenforceable by operation of law, or any Borrower or other party thereto (other than the Lender) shall so state in writing; or this Agreement or any other Loan Document, after delivery thereof hereunder, shall for any reason (other than any action taken independently by the Lender and except to the extent permitted by the terms thereof) cease to create a valid, perfected and, except as otherwise expressly permitted herein, first priority Lien on, or security interest in, any of the Collateral purported to be covered thereby.

 

k. A judgment or order for the payment of money which exceeds $75,000 in amount shall be entered against any Borrower by any court and such judgment or order shall continue undischarged or unstayed for 30 days.

 

l. Attachment. A warrant or writ of attachment or execution or similar process which exceeds $50,000 in value shall be issued against any property of any Obligor and such warrant or process shall continue undischarged or unstayed for 30 days.

 

 

m. Qualified Audits. The independent certified public accountants retained by the Borrower shall refuse to deliver an opinion in accordance with Section 10.1 with respect to the annual financial statements of the Borrower.

 

n. Material Adverse Change. There occurs any act, omission, event, undertaking or circumstance or series of acts, omissions, events, undertakings or circumstances which have, or in the sole judgment of the Lender would be reasonably likely to have, either individually or in the aggregate, a Materially Adverse Effect.

 

Section 12.2 Remedies.

 

a. Automatic Acceleration and Termination of Facilities. Upon the occurrence of an Event of Default specified in Section 12.1(h) or (i), (i) the principal of and the interest on the Loan and the Note at the time outstanding, and all other amounts owed to the Lender under this Agreement or any of the Loan Documents and all other Secured Obligations, shall thereupon become due and payable without presentment, demand, protest or other notice of any kind, all of which are expressly waived, anything in this Agreement or any of the Loan Documents to the contrary notwithstanding, and (ii) the Revolving Credit Facility and the commitment of the Lender to make Advances thereunder or under this Agreement shall immediately terminate.

 

b. Other Remedies. If any Event of Default (other than as specified in Section 12.1(h) or (i)) shall have occurred and be continuing, the Lender, in its sole and absolute discretion, may do any of the following:

 

i. declare the principal of and interest on the Loan and the Note at the time outstanding, and all other amounts owed to the Lender under this Agreement or any of the Loan Documents and all other Secured Obligations, to be forthwith due and payable, whereupon the same shall immediately become due and payable without presentment, demand, protest or other notice of any kind, all of which are expressly waived, anything in this Agreement or the Loan Documents to the contrary notwithstanding; and

 

ii. terminate Loan and any commitment of the Lender to make Advances hereunder.

 

c. Further Remedies. If any Event of Default shall have occurred and be continuing, the Lender, in its sole and absolute discretion, may do any of the following:

 

i. notify, or request the Borrower to notify, in writing or otherwise, any Account Debtor or obligor with respect to any one or more of the Receivables or Installment Contracts to make payment to the Lender or any agent or designee of the Lender, at such address as may be specified by the Lender, and, if, notwithstanding the giving of any notice, any Account Debtor or other such obligor shall make payments to the Borrower, the Borrower shall hold all such payments it receives in trust for the Lender, without commingling the same with other funds or property of, or held by, the Borrower and shall deliver the same to the Lender or any such agent or designee immediately upon receipt by the Borrower in the identical form received, together with any necessary endorsements;

 

ii. settle or adjust disputes and claims directly with Account Debtors and other obligors on Receivables or Installment Contracts for amounts and on terms which the Lender considers advisable and in all such cases only the net amounts received by the Lender in payment of such amounts, after deductions of costs and attorneys’ fees, shall constitute Collateral, and the Borrower shall have no further right to make any such settlements or adjustments or to accept any returns of merchandise;

 

 

iii. enter upon any premises on which Inventory or Equipment may be located and, without resistance or interference by the Borrower, take physical possession of any or all thereof and maintain such possession on such premises or move the same or any part thereof to such other place or places as the Lender shall choose, without being liable to the Borrower on account of any loss, damage or depreciation that may occur as a result thereof, so long as the Lender shall act reasonably and in good faith;

 

iv. require the Borrower to and the Borrower shall, without charge to the Lender, assemble the Inventory and Equipment and maintain or deliver it into the possession of the Lender or any agent or representative of the Lender at such place or places as the Lender may designate;

 

v. at the expense of the Borrower, cause any of the Inventory and Equipment to be placed in a public or field warehouse, and the Lender shall not be liable to the Borrower on account of any loss, damage or depreciation that may occur as a result thereof, so long as the Lender shall act reasonably and in good faith;

 

vi. without notice, demand or other process, and without payment of any rent or any other charge, enter any of the Borrower’s premises and, without breach of the peace, until the Lender completes the enforcement of its rights in the Collateral, take possession of such premises or place custodians in exclusive control thereof, remain on such premises and use the same and any of the Borrower’s equipment, for the purpose of (A) completing any work in process, preparing any Inventory for disposition and disposing thereof, and (B) collecting any Installment Contracts or other Receivable, and the Lender is hereby granted a license or sublicense and all other rights as may be necessary, appropriate or desirable to use the Intellectual Property in connection with the foregoing, and the rights of the Borrower under all licenses and franchise agreements shall inure to the Lender’s benefit (provided, however, that any use of any federally registered trademarks as to any goods shall be subject to the control as to the quality of such goods of the owner of such trademarks and the goodwill of the business symbolized thereby);

 

vii. exercise any and all of its rights under any and all of the Security Documents;

 

viii. apply any cash Collateral to the payment of the Secured Obligations in any order in which the Lender may elect or use such cash in connection with the exercise of any of its other rights hereunder or under any of the Security Documents;

 

ix. establish or cause to be established one or more lockboxes or other arrangement for the deposit of proceeds of Installment Contracts or Receivables, and, in such case, the Borrower shall cause to be forwarded to the Lender at the Lender’s Office, on a daily basis, copies of all checks and other items of payment and deposit slips related thereto deposited in such lockboxes, together with collection reports in form and substance satisfactory to the Lender; and

 

x. exercise all of the rights and remedies of a secured party under the UCC (whether or not the UCC is applicable) and under any other applicable law, including, without limitation, the right, without notice except as specified below and with or without taking the possession thereof, to sell the Collateral or any part thereof in one or more parcels at public or private sale, at any location chosen by the Lender, for cash, on credit or for future delivery and at such price or prices and upon such other terms as the Lender may deem commercially reasonable. The Borrower agrees that, to the extent notice of sale shall be required by law, at least ten (10) days’ notice to the 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 notice, but notice given in any other reasonable manner or at any other reasonable time shall also constitute reasonable notification. The Lender shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Lender 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.

 

 

Section 12.3 Application of Proceeds. All proceeds from each sale of, or other realization upon, all or any part of the Collateral following an Event of Default shall be applied or paid over as follows:

 

a. First: to the payment of all costs and expenses incurred in connection with such sale or other realization, including attorneys’ fees,

 

b. Second: to the payment of the Secured Obligations (with the Borrower remaining liable for any deficiency) in any order which the Lender may elect, and

 

c. Third: the balance (if any) of such proceeds shall be paid to the Borrower or, subject to any duty imposed by law or otherwise, to whomsoever is entitled thereto.

 

 

Section 12.4 Power of Attorney. In addition to the authorizations granted to the Lender under Section 8.13 or under any other provision of this Agreement or any of the Loan Documents, upon and after an Event of Default, the Borrower hereby irrevocably designates, makes, constitutes and appoints the Lender (and all Persons designated by the Lender from time to time) as the Borrower’s true and lawful attorney and agent in fact, and the Lender or any agent of the Lender may, without notice to the Borrower, and at such time or times as the Lender or any such agent in its sole discretion may determine, in the name of the Borrower or the Lender:

 

a. demand payment of the Receivables and the Installment Contracts, enforce payment thereof by legal proceedings or otherwise, settle, adjust, compromise, extend or renew any or all of the Receivables and Installment Contracts or any legal proceedings brought to collect the Receivables and Installment Contracts, discharge and release the Receivables and Installment Contracts or any of them and exercise all of the Borrower’s rights and remedies with respect to the collection of Receivables and Installment Contracts,

 

b. prepare, file and sign the name of the Borrower on any proof of claim in bankruptcy or any similar document against any Account Debtor or any notice of Lien, assignment or satisfaction of Lien or similar document in connection with any of the Collateral,

 

c. endorse the name of the Borrower upon any chattel paper, document, instrument, notice, freight bill, bill of lading or similar document or agreement relating to the Receivables, the Inventory or any other Collateral,

 

d. use the stationery of the Borrower, open the Borrower’s mail, notify the post office authorities to change the address for delivery of the Borrower’s mail to an address designated by the Lender and sign the name of the Borrower to verifications of the Receivables and on any notice to the Account Debtors,

 

 

e. use the information recorded on or contained in any data processing equipment and computer hardware and software relating to the Receivables, Installment Contracts, or other Collateral to which the Borrower or any Subsidiary of the Borrower has access.

 

Section 12.5 Miscellaneous Provisions Concerning Remedies.

 

a. Rights Cumulative. The rights and remedies of the Lender under this Agreement, the Note and each of the Loan Documents shall be cumulative and not exclusive of any rights or remedies which it or they would otherwise have. In exercising such rights and remedies, the Lender may be selective and no failure or delay by the Lender in exercising any right shall operate as a waiver of such right nor shall any single or partial exercise of any power or right preclude its other or further exercise or the exercise of any other power or right.

 

b. Waiver of Marshalling. The Borrower hereby waives any right to require any marshalling of assets and any similar right.

 

c. Limitation of Liability. Nothing contained in this Article 12 or elsewhere in this Agreement or in any of the Loan Documents shall be construed as requiring or obligating the Lender or any agent or designee of the Lender to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it or to present or file any claim or notice or take any action with respect to any Receivable or any other Collateral or the moneys due or to become due thereunder or in connection therewith or to take any steps necessary to preserve any rights against prior parties, and neither the Lender nor any of its agents or designees shall have any liability to the Borrower for actions taken pursuant to this Article 12, any other provision of this Agreement or any of the Loan Documents, so long as the Lender or such agent or designee shall act reasonably and in good faith.

 

d. Appointment of Receiver. In any action under this Article 12, the Lender shall be entitled to the appointment of a receiver, upon reasonable notice, to take possession of all or any portion of the Collateral and to exercise such power as the court shall confer upon such receiver.

 

 

Section 13.1 Notices.

 

a. Method of Communication. Except as may be otherwise provided in this Agreement or in any of the Loan Documents, all notices, requests, demands, consents, instructions or other communications required or permitted to be given hereunder and thereunder to the parties shall be in writing and sent by facsimile transmission, mailed or delivered in person to each party at its facsimile number or address set forth below (or to such other facsimile number or address for any party as indicated in any notice given by that party to the other party). All such notices and communications shall be effective (i) when sent by a nationally recognized overnight courier service for next day delivery, one (1) Business Day following the deposit with such service; (ii) when mailed, first class postage prepaid, return receipt requested, and addressed as aforesaid through the United States Postal Service, upon receipt; (iii) when delivered by hand, upon delivery; and (iv) when sent by facsimile transmission, upon confirmation of receipt; provided, however, that in the case of notices to the Lender, the Lender shall be charged with knowledge of the contents thereof only when such notice is actually received by the Lender.

 

 

b. Addresses for Notices. Notices to any party shall be sent to it at the following addresses, or any other address of which all the other parties are notified in writing.

 

If to the Borrower:		Freedom Financial Group, Inc. T.C.G. - The Credit Group Inc Attention: Jerald L. Fenstermaker 3058 E. Elm St. Springfield, MO 65802 Telephone No.: (417) 886-6600 Facsimile No.: (417) 841-1200
With a Copy to:		Shughart Thomson & Kilroy Attention: Tom O’Neal 901 St. Louis Avenue, Suite 1200 Springfield, MO 65806 Telephone No.: 417 ###-###-#### Facsimile No.: 417 ###-###-####
If to the Lender:		Heartland Bank Attention: President 212 S. Central Avenue St. Louis, Missouri 63105 Telephone No.:  ###-###-#### Facsimile No.:   ###-###-####
With a Copy to:		Carmody MacDonald P.C. Attention: Mark B. Hillis, Esq. 120 S. Central Ave., Suite 1800 St. Louis, MO 63105 Telephone No.: 314 ###-###-#### Facsimile No.: 314 ###-###-####

 

c. Lender’s Office. The Lender hereby designates its office located at 212 S. Central Avenue, St. Louis, Missouri 63105, or any subsequent office which shall have been specified for such purpose by written notice to the Borrower, as the office to which payments due are to be made and at which Loan will be disbursed.

Section 13.2 Expenses. The Borrower agrees to pay or reimburse on demand all reasonable costs and expenses incurred by the Lender, including, without limitation, the reasonable fees and disbursements of counsel, in connection with (a) the negotiation, preparation, execution, delivery, administration, enforcement and termination of this Agreement and each of the other Loan Documents, whenever the same shall be executed and delivered, including, without limitation, (i) the out-of-pocket costs and expenses incurred in connection with the administration and interpretation of this Agreement and the other Loan Documents, (ii) the costs and expenses of appraisals of the Collateral, (iii) the costs and expenses of lien searches, and (iv) taxes, fees and other charges of filing the Financing Statements and continuations and the costs and expenses of taking other actions to perfect, protect, and continue the Security Interest; (b) the preparation, execution and delivery of any waiver, amendment, supplement or consent by the Lender relating to this Agreement or any of the Loan Documents; (c) sums paid or obligations incurred in connection with the payment of any amount or taking any action required of the Borrower under the Loan Documents that the Borrower fails to pay or take; (d) if an Event of Default exists, costs of inspections and verifications of the Collateral, including, without limitation, standard per diem fees charged by the Lender for travel, lodging, and meals for inspections of the Collateral and the Borrower’s operations and books and records by the Lender’s agents; (e) costs and expenses of forwarding loan proceeds, collecting checks and other items of payment, and establishing and maintaining each primary operating account, agency account and lockbox; (f) costs and expenses of preserving and protecting the Collateral; (g) after the occurrence of an Event of Default, consulting with and obtaining opinions, field audits and appraisals from one or more Persons, including personal property appraisers, accountants and lawyers, concerning the value of any Collateral for the Secured Obligations or related to the nature, scope or value of any right or remedy of the Lender hereunder or under any of the Loan Documents, including any review of factual matters in connection therewith, which expenses shall include the fees and disbursements of such Persons; and (h) costs and expenses paid or incurred to obtain payment of the Secured Obligations, enforce the Security Interest, sell or otherwise realize upon the Collateral, and otherwise enforce the provisions of the Loan Documents, or to prosecute or defend any claim in any way arising out of, related to or connected with, this Agreement or any of the Loan Documents, which expenses shall include the reasonable fees and disbursements of counsel and of experts and other consultants retained by the Lender.

 

 

The foregoing shall not be construed to limit any other provisions of the Loan Documents regarding costs and expenses to be paid by the Borrower. The Borrower hereby authorizes the Lender to debit the Borrower’s loan accounts (by increasing the principal amount of the Revolving Credit Loan) in the amount of any such costs and expenses owed by the Borrower when due.

 

Section 13.3 Stamp and Other Taxes. The Borrower will pay any and all stamp, registration, recordation and similar taxes, fees or charges and shall indemnify the Lender against any and all liabilities with respect to or resulting from any delay in the payment or omission to pay any such taxes, fees or charges, which may be payable or determined to be payable in connection with the execution, delivery, performance or enforcement of this Agreement and any of the Loan Documents or the perfection of any rights or security interest thereunder.

 

Section 13.4 Setoff. In addition to any rights now or hereafter granted under applicable law, and not by way of limitation of any such rights, upon and after the occurrence of any Event of Default, the Lender is hereby authorized by the Borrower at any time or from time to time, without notice to the Borrower, to set off and apply any and all deposits (time or demand, including, but not limited to, indebtedness evidenced by certificates of deposit, whether matured or unmatured) and any other indebtedness at any time held or owing by the Lender to or for the credit or the account of the Borrower against and on account of the Secured Obligations irrespective or whether or not (a) the Lender shall have made any demand under this Agreement or any of the Loan Documents, or (b) the Lender shall have declared any or all of the Secured Obligations to be due and payable as permitted by this Agreement and although such Secured Obligations shall be contingent or unmatured.

 

Section 13.5 Litigation. EACH OF THE LENDER AND THE BORROWER HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST THE BORROWER OR THE LENDER ARISING OUT OF THIS AGREEMENT, THE COLLATERAL OR ANY ASSIGNMENT THEREOF OR BY REASON OF ANY OTHER CAUSE OR DISPUTE WHATSOEVER BETWEEN THE BORROWER AND THE LENDER OF ANY KIND OR NATURE. THE BORROWER AND THE LENDER HEREBY AGREE THAT THE FEDERAL COURT OF THE EASTERN DISTRICT OF MISSOURI OR, AT THE OPTION OF THE LENDER, ANY MISSOURI COURT IN WHICH THE LENDER SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY SHALL HAVE NON-EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE BORROWER AND THE LENDER, PERTAINING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR THE LOAN DOCUMENTS OR TO ANY MATTER ARISING THEREFROM. THE BORROWER EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS, HEREBY WAIVING PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT OR OTHER PROCESS OR PAPERS ISSUED THEREIN AND AGREEING THAT SERVICE OF SUCH SUMMONS AND COMPLAINT OR OTHER PROCESS OR PAPERS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO THE BORROWER AT THE ADDRESS SET FORTH IN SECTION 13.1(b), WHICH SERVICE SHALL BE DEEMED MADE UPON RECEIPT THEREOF. THE NON-EXCLUSIVE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT OF ANY JUDGMENT OBTAINED IN SUCH FORUM OR THE TAKING OF ANY ACTION UNDER THIS AGREEMENT TO ENFORCE THE SAME IN ANY APPROPRIATE JURISDICTION.

 

 

Section 13.6 Reversal of Payments. To the extent the Borrower makes a payment or payments to the Lender or the Lender receives any payment or proceeds of the Collateral for the Borrower’s benefit, which payment(s) or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law or equitable cause, then, the Lender shall have the continuing and exclusive right to apply, reverse and re-apply any and all payments to any portion of the Secured Obligations, and, to the extent of such payment or proceeds received, the Secured Obligations or part thereof intended to be satisfied shall be revived and continued in full force and effect, as if such payment or proceeds had not been received by the Lender.

 

Section 13.7 Injunctive Relief. The Borrower recognizes that, in the event the Borrower fails to perform, observe or discharge any of its obligations or liabilities under this Agreement, any remedy of law may prove to be inadequate relief to the Lender; therefore, the Borrower agrees that the Lender, at the Lender’s option, shall be entitled to temporary and permanent injunctive relief in any such case in accordance with applicable law.

 

Section 13.8 Accounting Matters. All financial and accounting calculations, measurements and computations made for any purpose relating to this Agreement, including, without limitation, all computations utilized by the Borrower to determine whether it is in compliance with any covenant contained herein, shall, unless there is an express written direction or consent by the Lender to the contrary, be performed in accordance with GAAP.

 

Section 13.9 Assignment; Participation. All the provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights under this Agreement. The Lender may assign to one or more Persons, or sell participations to one or more Persons in, all or a portion of its rights and obligations hereunder and under the Note and, in connection with any such assignment or sale of a participation, may assign its rights and obligations under the Security Documents. The Lender may, in connection with any assignment or proposed assignment or sale or proposed sale of a participation, disclose to the assignee or proposed assignee or participant or proposed participant any information relating to the Borrower furnished to the Lender by or on behalf of the Borrower.

 

Section 13.10 Amendments. Any term, covenant, agreement or condition of this Agreement or any of the other Loan Documents may be amended or waived and any departure therefrom may be consented to if, but only if, such amendment, waiver or consent is in writing signed by the Lender and, in the case of an amendment, by the Borrower. Unless otherwise specified in such waiver or consent, a waiver or consent given hereunder shall be effective only in the specific instance and for the specific purpose for which given.

 

 

Section 13.11 Performance of Borrower’s Duties. The Borrower’s obligations under this Agreement and each of the Loan Documents shall be performed by the Borrower at its sole cost and expense. If the Borrower shall fail to do any act or thing which it has covenanted to do under this Agreement or any of the Loan Documents, the Lender may (but shall not be obligated to) do the same or cause it to be done either in the name of the Lender or in the name and on behalf of the Borrower, and the Borrower hereby irrevocably authorizes the Lender so to act.

 

Section 13.12 Indemnification. The Borrower agrees to reimburse the Lender for all reasonable costs and expenses, including counsel fees and disbursements, incurred and to indemnify and hold the Lender harmless from and against all losses suffered by the Lender, other than losses resulting from the Lender’s gross negligence or willful misconduct, in connection with (a) the exercise by the Lender of any right or remedy granted to it under this Agreement or any of the Loan Documents, (b) any claim, and the prosecution or defense thereof, arising out of or in any way connected with this Agreement or any of the Loan Documents, except in the case of a dispute between the Borrower and the Lender in which the Borrower prevails in a final unappealed or unappealable judgment, and (c) the collection or enforcement of the Secured Obligations or any of them.

 

Section 13.13 All Powers Coupled with Interest. All powers of attorney and other authorizations granted to the Lender and any Persons designated by the Lender pursuant to any provisions of this Agreement or any of the Loan Documents shall be deemed coupled with an interest and shall be irrevocable so long as any of the Secured Obligations remain unpaid or unsatisfied or the Loan has not been terminated.

 

Section 13.14 Survival. Notwithstanding any termination of this Agreement, (a) until all Secured Obligations have been paid in full and the Revolving Credit Facility terminated, the Lender shall retain its Security Interest and shall retain all rights under this Agreement and each of the Security Documents with respect to the Collateral as fully as though this Agreement had not been terminated, and (b) the indemnities to which the Lender is entitled under the provisions of this Article 13 and any other provision of this Agreement and the Loan Documents shall continue in full force and effect and shall protect the Lender against events arising after such termination as well as before.

 

Section 13.15 Severability of Provisions. Any provision of this Agreement or any other Loan Document which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remainder of such provision or the remaining provisions hereof or thereof or affecting the validity or enforceability of such provision in any other jurisdiction.

 

Section 13.16 Governing Law. This Agreement and the Note shall be construed in accordance with and governed by the law of the State of Missouri.

 

Section 13.17 Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and shall be binding upon all parties, their successors and assigns, and all of which taken together shall constitute one and the same agreement.

 

Section 13.18 Reproduction of Documents. This Agreement, each of the Loan Documents and all documents relating thereto, including, without limitation, (a) consents, waivers and modifications that may hereafter be executed, (b) documents received by the Lender, and (c) financial statements, certificates and other information previously or hereafter furnished to the Lender, may be reproduced by the Lender by any photographic, photostatic, microcard, microfilm, miniature photographic or other similar process, and the Lender may destroy any original document so reproduced. Each party hereto stipulates that, to the extent permitted by applicable laws any such reproduction shall be as admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original shall be in existence and whether or not such reproduction was made by such Lender in the regular course of business), and any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence.

 

 

Section 13.19 Consent to Advertising and Publicity. The Borrower agrees that the Lender may issue and disseminate to the public information describing the credit accommodation entered into pursuant to this Agreement, including the name and address of the Borrower and the amount and a general description of the credit facilities provided hereunder.

 

Section 13.20 Final Agreement. This Agreement and the other Loan Documents are intended by the parties hereto as the final, complete and exclusive expression of the agreement among them with respect to the subject matter hereof and thereof. This Agreement and the other Loan Documents supersede any and all prior oral or written agreements between the parties hereto relating to the subject matter hereof and thereof.

 

The following notice is provided pursuant to Section 432.047 of the Revised Statutes of Missouri:

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in St. Louis, Missouri by their duly authorized officers in several counterparts all as of the day and year first written above.

 

		BORROWER:
		FREEDOM FINANCIAL GROUP, INC.
		By:  /s/ Jerald L. Fenstermaker
		Name: Jerald L. Fenstermaker Title: President

 

		T.G.C. - THE CREDIT GROUP INC.
		By: /s/ Jerald L. Fenstermaker
		Name: Jerald L. Fenstermaker   Title: CEO
		LENDER:
		HEARTLAND BANK
		By: /s/ Kenneth C. MacDonell
		Name: Kenneth C. MacDonell   Title: Senior Vice President

 

[ Filed as a separate exhibit to this Form 8-K ]