EXHIBIT 10.1
DTLL, INC.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
January 12, 2004
Card Acquisition, LLC
000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Philippe
Chief Executive Officer
Credit Line for Portfolio Acquisitions
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Gentlemen:
We are pleased to make available to you a credit line, on the terms set
forth in this letter ("Letter Agreement").
Section 1. The Loans. We agree, on the terms and subject to the
conditions hereinafter set forth, to make loans (the "Loans") to you from time
to time during the period from the date hereof to the date (the "Termination
Date") which is the earlier of (a) May 7, 2005 and (b) the date notice is given
by us to you pursuant to Section 6.
The aggregate amount of all Loans outstanding from time to time may not
exceed $150,000 (such amount being the "Commitment Amount") and shall be
evidenced by a promissory note ("Note") in our favor. Subject to the terms
hereof, you may at any time and from time to time borrow and prepay without
penalty, and reborrow amounts pursuant hereto.
Section 2. Making the Loans: Security, Servicing. We will make Loans on
at least two Business Days' prior written notice from you to us (a "Borrowing
Notice") specifying (a) the proposed amount and date (which must be a Business
Day) of such Loan and (b) the portfolio of non-performing consumer debt (each, a
"Portfolio") you intend to purchase therewith or in which you intend to acquire
an interest through a joint venture.
Not later than 10 a.m. (Minneapolis time) on the date of such Loan the
proceeds of such Loan will be made available to you via deposit in immediately
available funds at such time and place as you may specify in the Borrowing
Notice.
Borrower hereby grants us a continuing security interest in each
Portfolio underlying each Loan. We agree to release such security interest in
all or a portion of a Portfolio in connection with the sale or disposition of
such Portfolio.
The parties recognize that Borrower may outsource all or any portion of
the servicing and collection of a Portfolio and will likely purchase any such
Portfolio in connection with a joint-venture transaction prior to its issuing
bank agreements becoming operational.
Section 3. Interest, Payments, Distributions. Interest will accrue on
the unpaid principal amount ("Unpaid Balance") of each Loan from the date such
Loan is made until such Unpaid Balance is paid in full at a rate of 15% per
annum.
If, and only if, the Unpaid Balance of such Loan and all accrued and
unpaid interest thereon shall not have been repaid in full on or before the last
business day of the ninth month following the making of such Loan, 20% of all
Residual Amounts relating to such Loan shall be paid to you as and when and to
the extent collected by Borrower and in any event may not be paid until Borrower
has finally disposed of such Portfolio.
Interest on each Loan shall be paid on the last business day of the
sixth month following the date of the making of such Loan and thereafter
quarterly on the last business day of each following three month period.
Principal amounts collected in respect of such Loan shall be paid on a
pass-through basis based on net collections of principal received by Borrower
and shall be paid on the same dates as Interest payments until the Unpaid
Balance of such Loan shall have been reduced to zero.
"Residual Amounts" in respect of a Portfolio underlying a Loan is that
portion of collections on such Portfolio remaining after subtracting therefrom
all allocable costs, expenses, fees, interest payments and other amounts
required to be paid in respect thereof.
Section 4. Conditions Precedent to Initial Loan. Our obligation to make
the initial Loan hereunder is subject to the condition precedent that we
receive, prior to or concurrently with the making of such Loan, a fully executed
copy of this Agreement, the Note and the related security agreement.
Section 5. Representations and Warranties. You and we represent and
warrant to each other that we each (a) have the corporate authority to execute
this Letter Agreement and, in the case of Borrower, the Note, (b) are duly
organized, validly existing and in good standing under the laws of our state of
incorporation or formation, and (c) are duly qualified to do business and are in
good standing as a foreign corporation in each jurisdiction where the nature of
such business requires such qualification and require no authorization, approval
or other action by, and no notice to or filing with, any governmental authority
or regulatory body is required for the due execution, delivery and performance
of this Letter Agreement and the Note.
Section 6. Commitment Termination. If any of the following events
occurs and is continuing: (a) you fail to remit any amount required to be
distributed under Section 3 within
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five business days; (b) you admit in writing your inability to pay debts, or
make a general assignment for the benefit of creditors or any insolvency
proceeding is instituted by or against you; (c) we deem ourselves insecure in
our sole and unilateral discretion; or (d) we engage in a joint venture,
licensing arrangement, merger, reverse merger, consolidation, reorganization,
recapitalization, business combination or other transaction pursuant to which we
and/or substantially all of our assets are acquired by, or combined with, a
third party or third parties, or an event, transaction or contract in which the
other party with which we have consummated an event or entered into a
transaction or contract prohibits us from making Loans; then, and in any such
event, we may, by notice to you, declare our commitment under Section 1 to make
Loans to be terminated, whereupon the same will forthwith terminate immediately.
Section 7. Notices, etc. All notices and other communications provided
for hereunder must be in writing (including telegraphic communication) and
mailed or telegraphed or delivered, if to you, at your address at Card
Acquisition, LLC, 000 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxxxx Xxxxx, XX 00000,
Attention: Xxxxxxx X. Philippe; and if to us, at our address at 000 Xxxxx Xxxxxx
Xxxxx, Xxxxx 000, Xxxxxx Xxxxxx, XX 00000, Attention: Xxxxxx X. Xxxxx; or, as to
each of us, at such other address as designated by one of us in a written notice
to the other. All such notices and communications will, when mailed or
telegraphed, be effective when deposited in the mails or delivered to the
telegraph company, respectively, addressed as aforesaid, except that notices to
us will not be effective until received by us.
Section 8. Miscellaneous. (a) This Letter Agreement, the Note and each
other document or instrument delivered in connection herewith shall be binding
upon and inure to the benefit of you and us and your and our respective
successors and assigns, except that neither of us has the right to assign our
rights hereunder or any interest herein without the prior written consent of the
other party, (b) amendments hereto must be in writing and signed by both
parties, (c) each party bears its own expenses, (d) this Letter Agreement may be
executed by you and us in counterparts, each of which will be deemed to be an
original and all of which will constitute but one and the same agreement, (e)
this Letter Agreement shall be governed and construed in accordance with the
laws of Minnesota and (f) the parties agree that we may pay to Oak Ridge
Financial Services Group, Inc. ("Oak Ridge") a fee of $10,000, $5,000 of which
shall be paid from the proceeds of the first Loan and the remaining $5,000 of
which shall be paid by us to Oak Ridge on the last business day of the month
which is six months from the date of the first Loan.
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If the terms of this Letter Agreement are satisfactory to you, please indicate
your agreement and acceptance thereof by executing a counterpart of this Letter
Agreement and returning it to us.
Very truly yours,
DTLL, INC.
By /s/ Xxxxxxx Xxxxxx
--------------------------------
Title: CEO
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Agreed and Accepted:
CARD ACQUISITION, LLC
/s/ Xxxxxxx X. Philippe
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By Xxxxxxx X. Philippe
Title: Chief Executive Officer
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