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EXHIBIT 10.9    
    


 
 

FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT    
    


        THIS FIRST AMENDMENT ("Amendment"), dated as of the 30th day of December, 2003, by and between  PAWNMART, INC. and XPONENTIAL, INC. (collectively, "Borrower"), and  COMERICA BANK, a Michigan banking corporation ("Bank"); 


WITNESSETH: 


        WHEREAS,
Borrower and Bank are parties to that certain Revolving Credit Agreement dated as of May 19, 2003 (the "Agreement"); 


        WHEREAS,
Borrower and Bank desire to amend the Agreement, as herein provided; 


        NOW,
THEREFORE, in consideration of the premises and the mutual promises herein contained, Borrower and Bank hereby agree as follows: 


        1.     The
following definitions in Section 1.1 of the Agreement are hereby deleted and replaced with the following: 


        "'Applicable
Interest Rate' shall mean the Fixed Rate. 


        'Commitment
Amount' shall mean Four Million Dollars ($4,000,000), or such base amount to which it is or may be reduced from time to time pursuant to Sections 2.12 and 2.13 hereof. 


        'Maturity
Date' shall mean June 30, 2004." 


        2.     The
following new definition is hereby added to the Agreement in appropriate alphabetical order: 


        'Fixed
Rate' shall mean a fixed rate of interest equal to 9% per annum." 


        3.     The
definitions of "Prime-based Loan", "Prime-based Rate" and "Prime Rate" are hereby deleted in their entirety from the Agreement. 


        4.     Any
and all references to the terms "Prime-based Loan", "Prime-based Rate" and "Prime Rate" are hereby deleted in their entirety from the Agreement and any reference to
the "Prime-based Rate" is hereby replaced with the "Fixed Rate". 


        5.     Section 2.10
of the Agreement is hereby deleted in its entirety and replaced with the following: 



        "2.10    Default Interest.    Notwithstanding anything herein to the contrary, in the event and so long as an Event of
Default shall exist, all principal outstanding under the Note shall bear interest, payable on demand, from the date of such Event of Default at a rate per annum equal to twelve percent (12%) (but in
no event in excess of the maximum rate permitted by law)." 




        6.     Section 2.11
of the Agreement is hereby deleted in its entirety and replaced with the following: 



        "2.13    Mandatory Commitment Reduction.    Commencing on February 1, 2004 and on the first day of each
calendar month thereafter, through and including June 1, 2004, the Commitment Amount shall be automatically reduced by One Hundred Thousand Dollars ($100,000), and in the event that the
Commitment Amount as so reduced is less than the amount of Loan then outstanding, Borrower shall immediately prepay the Loan in an amount, if any, by which Advances under the Loan exceed the
Commitment Amount as so reduced." 




        7.     Section 2.12
of the Agreement is hereby amended by amending the caption of such Section to read "Voluntary Commitment
Reduction". 


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        8.     Borrower
agrees to pay to Bank, upon demand by Bank, all fees and expenses, including, without limitation, attorneys' fees and expenses, whether of inside or outside
counsel, (including without limitation those of Miller, Canfield, Paddock and Stone, P.L.C. ("Miller, Canfield")) incurred by the Bank in connection with negotiations between the Borrower and the
Bank, the preparation of this Amendment, and the documents and instruments relating hereto. Borrower further agrees to pay to Bank a non-refundable origination fee in the amount of One
Hundred Ten Thousand Dollars ($110,000) with respect to the Loan. Such origination fee shall be deemed earned in full by Bank upon Borrower's execution and delivery of this Amendment to Bank. Eighty
Thousand Dollars ($80,000) of such amount shall be due and payable upon Borrower's execution hereof and the remaining Thirty Thousand Dollars ($30,000) shall be due and payable on or before
April 30, 2004. Notwithstanding the foregoing, Bank agrees to waive the remaining Thirty Thousand Dollars ($30,000) installment of the origination fee so long as Borrower irrevocably pays the
Indebtedness (as defined in the Agreement) in full on or before April 30, 2004 and the Indebtedness is not subject to being rescinded, disgorged or otherwise recovered from Bank under any
applicable law. Any breach of an obligation hereunder shall constitute an Event of Default under the Agreement. 


        9.     Borrower
hereby represents and warrants that, after giving effect to the amendments obtained herein, (a) the execution, delivery and performance of this Amendment
and any other documents and instruments required under this Amendment or the Agreement are within Borrower's powers and authorities, have been duly authorized, are not in contravention of law or the
terms of Borrower's organizational documents, and do not require the consent or approval any governmental body, agency, or authority; and this Amendment and any other documents and instruments
required under this Amendment or the Agreement to which Borrower is a party or by which it is otherwise bound, will be valid and binding in accordance with their terms; and (b) the continuing
representations and warranties of Borrower set forth in Sections 5.1 through 5.15 of the Agreement are true and correct on and as of the date hereof with the same force and effect as if made on and as
of the date hereof. 


        10.   Borrower
certifies that no Default or Event of Default (as defined in the Agreement) has occurred and is continuing as of the date hereof, except for the "Identified
Default". For purposes hereof, the "Identified Default" shall mean only the default for making a loan to American IronHorse Motorcycle Company, Inc. in the amount of $1,000,000 as evidenced by
a Secured Promissory Note dated as of October 3, 2003 (the "Motorcycle Note") in violation of Section 6.5 of the Agreement. Bank hereby waives any Default or Event of Default (as defined
in the Agreement) arising from the "Identified Default" so long as Borrower delivers to Bank the original Motorcycle Note and an assignment of the Motorcycle Note and all security therefor in form
acceptable to Bank. This Amendment shall not be construed as a waiver by Bank of any other Defaults or Events of Default (as defined in the Agreement) by Borrower that may exist under or in connection
with the Agreement or the Note. 


        11.   The
waivers provided herein shall extend to and cover only the matters expressly described herein and shall not act as or constitute waivers of or consents to any other
Default, Event of Default, transaction, act or omission, whether related or unrelated to the foregoing, and the Agreement, as amended hereby, and the Note, continues to be valid, binding and
enforceable according to the terms stated therein. Further, said waivers shall not extend to or affect any obligation, covenant, agreement, Default or Event of Default not expressly waived hereby, or
impair any right of Bank consequent therefrom. All terms and conditions of the Agreement, as so amended, and the Note, shall remain in full force and effect and are hereby acknowledged and ratified by
Borrower. 


        12.   All
the terms used herein which are defined in the Agreement shall have the same meanings as used therein, unless the context clearly requires otherwise. 


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        13.   Borrower
expressly acknowledges and agrees (a) that except as expressly amended herein, the Agreement and related documents shall remain in full force and effect
and the foregoing are hereby ratified, confirmed and restated, and (b) that there are no commitments by the Bank to amend, modify, or otherwise change the terms and conditions of the Agreement
and the documents related thereto. 


        IN
WITNESS WHEREOF, the parties hereto have executed this Amendment on the day and year first set forth above. 



	

 	
 	

PAWNMART, INC.
	

 	
 	

By:	
 	

/s/  ROBERT W. SCHLEIZER      
 Robert W. Schleizer,

Chief Financial Officer
	

 	
 	

XPONENTIAL, INC.
	

 	
 	

By:	
 	

/s/  ROBERT W. SCHLEIZER      
 Robert W. Schleizer,

Chief Financial Officer
	

 	
 	

COMERICA BANK
	

 	
 	

By:	
 	

/s/  JOSEPH SULLIVAN      
 Joseph Sullivan,

Senior Vice President,

Texas Division




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REVOLVING NOTE    
    



	$4,000,000	 	Detroit, Michigan

December 30, 2003





        FOR VALUE RECEIVED, on or before the Maturity Date, PAWNMART, INC., a Nevada corporation and  XPONENTIAL,
 INC., a Delaware corporation (collectively, "Company") promises to pay to the order of COMERICA
BANK, a Michigan banking corporation ("Bank") at its main office at One Detroit Center, Detroit, Michigan, in lawful money of the United States of America so much of the
principal sum of FOUR MILLION DOLLARS ($4,000,000) as shall have been advanced and then be outstanding hereunder and all the accrued and unpaid interest thereon. Notwithstanding the foregoing, the
maximum amount available hereunder shall be reduced by One Hundred Thousand Dollars ($100,000) each calendar month, commencing on February 1, 2004 and on the first day of each calendar month
thereafter, through and including June 1, 2004, and in the event that the Commitment Amount as so reduced is less than the amount of the Loan then outstanding, Company shall immediately prepay
the Loan in an amount, if any, by which Advances under the Loan exceed the Commitment Amount as so reduced. 


        Capitalized
terms used herein and not defined to the contrary have the meanings given them in the Revolving Credit Agreement dated as of May 19, 2003, as amended, between Company
and Bank ("Agreement") to which reference is hereby made. 


        Interest
on the Advances from time to time outstanding shall bear interest at the Applicable Interest Rate; provided, however, that in the event and so long as there shall exist an Event
of Default, the principal balance from time to time outstanding shall bear interest at the rates provided in Section 2.5 of the Agreement.
Interest shall be computed on the basis of a 360 day year and assessed for the actual number of days elapsed. Interest shall be payable on all Advances, monthly, on the first Business Day of
each month, commencing on January 1, 2004. 


        This
Note is note under which advances, repayments and readvances may be made subject to the terms and conditions of the Agreement. This Note evidences borrowing under, is subject to, is
secured in accordance with, and may be matured under, the terms of the Agreement, to which reference is hereby made. As additional security for this Note, Company grants Bank a lien on all property
and assets including deposits and other credits of the Company, at any time in possession or control of or owing by Bank for any purpose. 


        Company
hereby waives presentment for payment, demand, protest and notice of dishonor and nonpayment of this Note and agrees that no obligation hereunder shall be discharged by reason of
any extension, indulgence, release, or forbearance granted by any holder of this Note to any party now or hereafter liable hereon or any present or subsequent owner of any property, real or personal,
which is now or hereafter security for this Note. Any transferees of, or endorser, guarantor or surety paying this Note in full may succeed to all rights of Bank, and Bank shall be under no further
responsibility for the exercise thereof or the loan evidenced hereby. Nothing herein shall limit any right granted Bank by other instrument or by law. 


        This
Note shall be governed by and construed in accordance with the laws of the State of Michigan. 





 



        This Note amends and restates (in part) that certain $4,500,000 Revolving Note dated as of May 19, 2003, executed and delivered by the undersigned in favor
of Bank, and constitutes replacement and renewal evidence of the indebtedness evidenced by such prior note.



	

 	
 	

PAWNMART, INC.
	

 	
 	

By:	
 	

/s/  ROBERT W. SCHLEIZER      
 Robert W. Schleizer,

Chief Financial Officer
	

 	
 	

XPONENTIAL, INC.
	

 	
 	

By:	
 	

/s/  ROBERT W. SCHLEIZER      
 Robert W. Schleizer,

Chief Financial Officer




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FIRST AMENDMENT TO SECURITY AGREEMENT    
    



        This First Amendment to Security Agreement ("First Amendment") is made this 30th day of December, 2003 by  XPONENTIAL, INC. ("Debtor")
in favor of Comerica Bank ("Bank"). 


        WHEREAS,
Debtor executed a certain Security Agreement (All Assets) in favor of Bank on May 19, 2003 (the "Security Agreement") to collaterally secure unto Bank payment and
performance when due, whether by stated maturity, demand, acceleration or otherwise, all existing and future indebtedness to Bank of Debtor and Pawnmart, Inc. ("Borrower"), which indebtedness
includes, without limit, any and all obligations of Debtor and Borrower to Bank, whether absolute or contingent, direct or indirect, voluntary or involuntary, liquidated or unliquidated, joint or
several, known or unknown; and 


        WHEREAS,
Debtor and Bank desire to amend the Security Agreement on the terms and conditions hereof; 


        NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, it is agreed as follows: 


        1.     Clause (e)
of Paragraph 1 of the Security Agreement is hereby deleted in its entirety and replaced with the following: 



	(e)
	all
of Debtor's right, title and interest in the securities account denominated as account no. BJX-169293 (the "Account") maintained at Comerica Securities, Inc.
and all cash, securities, bonds, investment property or financial assets now or hereafter deposited or maintained in, or credited to, the Account into which Debtor has deposited or will deposit Two
Million Five Hundred Thousand Dollars ($2,500,000). Any interest earned with respect to the funds in the Account will not constitute Collateral and Debtor shall be entitled to receive the interest
accrued at any time,". 




        2.     Paragraph 7
of the Security Agreement is hereby deleted in its entirety and replaced with the following: 



	"7.
	Special
Provisions Applicable to this Agreement.



	a.
	Debtor
shall at all times maintain a cash value of not less than Two Million Five Hundred Thousand Dollars ($2,500,000) (the "Minimum Amount") in the Account. In the event the balance
in the Account falls below the Minimum Amount, Debtor shall have forty eight (48) hours to increase the balance in the Account to at amount equal to least the Minimum Amount and failure to do
so shall constitute an Event of Default.



	b.
	Debtor
shall report the outstanding balance in the Account to Bank on the Borrowing Base Amount report required to be furnished to Bank pursuant to the Revolving Credit Agreement among
Debtor, Borrower and Bank dated as of May 19, 2003, as amended, and deliver such supporting information as Bank may reasonably require." 







        3.     All
capitalized terms herein, unless otherwise defined, shall have the meanings ascribed thereto in the Security Agreement. 


        4.     Except
as amended hereby, the Security Agreement shall remain unchanged and shall be in full force and effect, enforceable in accordance with its terms. 





 



        IN
WITNESS WHEREOF, this First Amendment has been executed as of the day first stated above. 



	

 	
 	

XPONENTIAL, INC.
	

 	
 	

By:	
 	

/s/  ROBERT W. SCHLEIZER      
 Robert W. Schleizer,

Chief Financial Officer
	

 	
 	

COMERICA BANK
	

 	
 	

By:	
 	

/s/  JOSEPH SULLIVAN      
 Joseph Sullivan,

Senior Vice President,

Texas Division




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FIRST AMENDMENT TO ACCOUNT CONTROL AGREEMENT    
    


        This First Amendment to Account Control Agreement ("First Amendment") is made this 30th day of December, 2003 among COMERICA
BANK("Bank"), XPONENTIAL, INC. ("Pledgor") and COMERICA
SECURITIES, INC. ("Securities Intermediary"). 


        WHEREAS,
Bank, Pledgor and Securities Intermediary executed a certain Account Control Agreement in favor of Bank on May 19, 2003 (the "Account Control Agreement") in connection
with a Security Agreement dated as of May 19, 2003, as amended, by Pledgor to Bank; and 


        WHEREAS,
Pledgor, Bank and Securities Intermediary desire to amend the Account Control Agreement on the terms and conditions hereof; 



        NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, it is agreed as follows: 


        1.     Paragraph 4
of the Account Control Agreement is hereby deleted in its entirety and replaced with the following: 



        "4.   No Withdrawals. Notwithstanding the provisions of Section 3 above, Securities Intermediary shall neither accept
nor comply with any entitlement order from Pledgor withdrawing any financial assets from the Account or directing the transfer of any financial assets held in the Account to any other account
maintained at Securities Intermediary or any other entity other than Secured Party nor deliver any such financial assets to Pledgor nor pay any free credit balance or other amount owing, from
Securities Intermediary to Pledgor with respect to the Account without the prior written consent of Secured Party; provided, however Pledgor may withdraw financial assets from the Account so long as
Pledgor at all times maintains a cash value of not less than Two Million Five Hundred Thousand Dollars ($2,500,000) in the Account." 




        2.     All
capitalized terms herein, unless otherwise defined, shall have the meanings ascribed thereto in the Account Control Agreement. 


        3.     Except
as amended hereby, the Account Control Agreement shall remain unchanged and shall be in full force and effect, enforceable in accordance with its terms. 





 



        IN
WITNESS WHEREOF, this First Amendment has been executed as of the day first stated above. 



	

 	
 	

XPONENTIAL, INC.
	

 	
 	

By:	
 	

/s/  ROBERT W. SCHLEIZER      
 Robert W. Schleizer,

Chief Financial Officer
	

 	
 	

COMERICA BANK
	

 	
 	

By:	
 	

/s/  JOSEPH SULLIVAN      
 Joseph Sullivan,

Senior Vice President

Texas Division
	

 	
 	

COMERICA SECURITIES, INC.
	

 	
 	

By:	
 	

/s/  PAMELA K. COLLINS      
 Pamela K. Collins

Regional Operations Manager-Vice President




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COLLATERAL ASSIGNMENT OF NOTE AND SECURITY AGREEMENT    
    


        This Collateral Assignment of Note and Security Agreement, dated as of the 30th day of December, 2003, by and from  XPONENTIAL, INC.("Xponential"), INVESTORS STRATEGIC PARTNERS I, LTD. AND CURTISWOOD CAPITAL,
LLC (collectively with Xponential, the "Creditors", DWAYNE A. MOYERS, AS AGENT FOR THE CREDITORS ("Agent", together with the
Creditors, the "Assignor"), to and for the benefit of COMERICA BANK, a Michigan banking corporation ("Assignee"). 



        FOR
VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged, Assignor hereby agrees as follows: 


        1.    Assignment and Grant.    As security for any and all indebtedness and liabilities whatsoever of Xponential and
Pawnmart, Inc. (collectively, "Borrower") to Assignee, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and howsoever evidenced,
including obligations arising from applications or agreements for the issuance of letters of credit or otherwise (collectively, the "Indebtedness"), and to secure the performance by Assignor of its
covenants and warranties hereunder, Assignor does hereby sell, assign, transfer, grant and set over to Assignee all of Xponential's right, title and interest in and to that certain Secured Promissory
Note in the face amount of $1,000,000, dated as of October 3, 2003, from American IronHorse Motorcycle Company, Inc., a Texas corporation (the "Debtor") to Assignor (the "Motorcycle
Note") and all amounts payable by the maker thereunder, and the Security A as of October 3, 2003 from the Debtor to Assignor (the "Motorcycle Security Agreement") and all of Assignor's rights
and remedies under the Motorcycle Note and Motorcycle Security Agreement, and in all additions, attachments, accessions, replacements, substitutions, renewals and cash and non-cash
proceeds thereof or therefor, wherever situated, now owned or hereafter acquired (all the foregoing being collectively referred to as the "Collateral"). 



        This
Assignment and Security Agreement is made solely as collateral security for the Indebtedness and for the obligations of Assignor hereunder. Upon payment in full of the Indebtedness
and all other sums payable thereunder or hereunder, this Assignment and Security Agreement shall terminate and all rights and interests herein assigned and granted to the Assignee shall revert to the
Assignor. 


        2.    Representations and Warranties of Assignor.    The Assignor represents and warrants to the Assignee that: 



	(a)
	The
sole original Motorcycle Note and a true and complete copy of the Motorcycle Security Agreement have been delivered to Assignee;



	(b)
	The
Motorcycle Note and Motorcycle Security Agreement are genuine, enforceable and in full force and effect according to their terms, have not been amended or replaced and are not in
default (nor has there occurred any event which, with the giving of notice or the passage of time, or both, would constitute such a default);



	(c)
	As
of the date hereof there exists no other assignment or security interest of or in the Motorcycle Note or the collateral described in the Motorcycle Security Agreement, except as
set forth in that certain Subordination Agreement dated October 3, 2003 (the "Existing Subordination Agreement") among the Creditors, Agent, American IronHorse Motorcycle Company, Inc.
and Textron Financial Corporation ("Textron"), a true and complete copy of which has been delivered to Assignee. 






 





        3.    Covenants and Agreements of Assignor.    The Assignor covenants and agrees that the Assignee shall have all of
the rights and remedies with respect to the Collateral of a secured party under Article 9 of the Uniform Commercial Code of Michigan and under any and all security agreements, if any, from
Assignor to Assignee. For so long as this Assignment and Security Agreement is in effect, Assignor agrees (a) subject to the terms of the Existing Subordination Agreement, to endorse and
deliver to Assignee all payments on, or other proceeds of, the Collateral received by Assignor from any source, in the form received by Assignor without commingling with any funds belonging to
Assignor and forthwith to deliver to Assignee all property in Assignor's possession or hereafter coming into Assignor's possession through enforcement of any of Assignor's rights or interests in the
Collateral, and (b) except as set forth in the Existing Subordination Agreement, no into any agreement subordinating, amending, modifying or terminating the Motorcycle Note and the Motorcycle
Security Agreement, and any such attempted subordination, amendment, modification or termination shall be void. 


        4.    Covenants and Agreements of Assignee.    Assignee covenants and agrees that the Collateral is assigned to
Assignee subject to the terms, provisions and conditions of the Existing Subordination Agreement and Assignee shall be bound by the terms, provisions and conditions of the Existing Subordination
Agreement until the Senior Creditor Indebtedness (as defined in the Existing Subordination Agreement) has been fully, finally and indefeasibly paid in cash and all financing arrangements and
commitments between Creditors and Textron have been terminated. 


        5.    Waiver and Release.    Subject to the terms of the Existing Subordination Agreement, Assignor agrees that
Assignee may, in Assignor's name, endorse all notes or remittances received from the maker of the Motorcycle Note. 


        6.    Severability.    If any term or provision of this Agreement and Security Agreement or any application thereof
shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Assignment and Security Agreement and of any other application of such term or
provision shall not in any way be affected or impaired thereby. 


        7.    Successors and Assigns.    This Assignment and Security Agreement shall be binding upon the parties hereto and
their respective successors and assigns. 


        8.    Governing Law.    This Assignment and Security Agreement shall in all respects be governed by and construed in
accordance with the laws of the State of Michigan. Section headings in this Assignment and Security Agreement are included for convenience only and shall not affect the meaning hereof for any purpose. 


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        IN
WITNESS WHEREOF, Assignor has caused this Assignment and Security Agreement to be duly executed as of the date and year first above written. 



	

 	
 	
ASSIGNORS
	

 	
 	

XPONENTIAL, INC.
	

 	
 	

By:	
 	

/s/  ROBERT W. SCHLEIZER      
 Robert W. Schleizer,

Chief Financial Officer
	

 	
 	

INVESTORS STRATEGIC PARTNERS I, LTD.
	

 	
 	

By:	
 	

/s/  DWAYNE A. MOYERS      
 Dwayne A. Moyers, Agent
	

 	
 	

CURTISWOOD CAPITAL, LLC
	

 	
 	

By:	
 	

/s/  DWAYNE A. MOYERS      
 Dwayne A. Moyers, Agent
	

 	
 	

 Dwayne A. Moyers, as agent for Xponential, Inc., Investors Strategic Partners I, Ltd. and Curtiswood Capital, LLC
	

Acknowledged and Agreed to by:	
 	

 	
 	

 
	

TEXTRON FINANCIAL CORPORATION	
 	

 	
 	

 





	

By:	
 	

	
 	

 
	

Its:	
 	

	
 	

 




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ASSIGNMENT SEPARATE FROM NOTE    
    


        Date: December 30, 2003 


        FOR
VALUE RECEIVED, the undersigned hereby assigns and transfers to COMERICA BANK, a Michigan banking corporation, whose address is 500
Woodward Avenue, Detroit, Michigan 48226, that certain Secured Promissory Note made as of October 3, 2003, in the original principal amount of $1,000,000 by American Iron Horse Motorcycle
Company to the order of the undersigned. 



	

 	
 	

XPONENTIAL, INC.
	

 	
 	

By:	
 	

/s/  ROBERT W. SCHLEIZER      
 Robert W. Schleizer,

Chief Financial Officer











QuickLinks



EXHIBIT 10.9


FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT



REVOLVING NOTE


FIRST AMENDMENT TO SECURITY AGREEMENT


FIRST AMENDMENT TO ACCOUNT CONTROL AGREEMENT


COLLATERAL ASSIGNMENT OF NOTE AND SECURITY AGREEMENT

ASSIGNMENT SEPARATE FROM NOTE