EXECUTION COPY
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TENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
This TENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment")
dated as of May 1, 2001 is by and between THE CREDIT STORE, INC., a Delaware
corporation (the "Borrower") and COAST BUSINESS CREDIT, a division of Southern
Pacific Bank, a California corporation ("Coast").
BACKGROUND INFORMATION
The Borrower and Coast are parties to a Loan and Security Agreement
dated as of April 30, 1998, as amended as of April 27, 1999, June 25, 1999,
December 6, 1999, May 31, 2000, October 31, 2000 and April 16, 2001 (as
heretofore amended, the "Loan Agreement" and as amended by this Amendment, the
"Amended Loan Agreement"). To secure the payment of the Borrower's obligations
under such agreement, the Borrower has granted Coast a security interest in and
lien upon substantially all of its assets, including, without limitation, the
Borrower's right, title, and interest in Receivables (including the TCS Funding
V Receivables, as defined below) and collections related thereto.
The Borrower and TCS Funding V, Inc., a Delaware corporation (the
"Buyer"), have entered into a Receivables Purchase Agreement (the "Receivables
Purchase Agreement") of even date herewith pursuant to which, from time to time,
the Borrower agrees to, sell, assign, transfer, set-over, and otherwise convey
to the Buyer, and the Buyer agrees to purchase from the Borrower, all of the
Borrower's right, title, and interest in, to, and under the Conveyed Property,
as defined in the Receivables Purchase Agreement (such Conveyed Property
referred to herein as the "TCS Funding V Receivables").
To finance the purchase of the TCS Funding V Receivables, the Buyer,
the Borrower, and Xxxxxx & Xxxxxxxxx Investments Corporation, a Minnesota
corporation (the "Lender"), have entered into a Master Credit and Security
Agreement (the "Credit Agreement") of even date herewith pursuant to which the
Lender agrees to extend one or more term loans to the Buyer, which loan is to be
secured by, among other things, a first priority security interest in and lien
upon the TCS Funding V Receivables.
As a condition precedent to disbursing the term loans under the Credit
Agreement, the Lender requires the due execution and delivery of this Seventh
Agreement by the parties hereto. Therefore, the parties hereto wish to amend the
Loan Agreement to release Coast's right, title, and/or interest in, to, or under
the TCS Funding V Receivables and to provide for certain other changes in
circumstances and new arrangements among themselves.
ACCORDINGLY, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Loan Agreement Definitions. Terms defined in the Loan Agreement
shall have the same meaning when used herein unless otherwise indicated.
ARTICLE II
AMENDMENTS
2.1 Amendment to Section 1 of the Loan Agreement.
(a) Section 1 of the Loan Agreement is hereby amended by adding the
following definitions to such section:
"Funding V Receivables" means any of the Conveyed Property (as
defined in the TCS Funding V Receivables Purchase Agreement), whether
now existing or hereafter arising, to be transferred by the Borrower to
TCS Funding V and associated with the credit card accounts marked on
the records of TCSI with a permanent pool ID of 200l-004 and listed on
the CD provided to Coast labeled "TCS Funding V Closing Account
Schedule."
"TCS Funding V" means TCS Funding V, Inc., a Delaware
corporation.
"TCS Funding V Receivables Purchase Agreement" means the
Receivables Purchase Agreement dated as of May 1, 2001 by and between
the Borrower, as seller, and TCS Funding V, as purchaser.
(b) The definitions of "General Intangibles" and "Receivables" stated
in Section 1 of the Loan Agreement are hereby amended by amending and restating
such definitions in their entirety to read as follows:
"General Intangibles" means all general intangibles of
Borrower, whether now owned or hereafter created or acquired by
Borrower, including, without limitation, all choses in action, causes
of action, corporate or other business records, Deposit Accounts,
investment property, inventions, designs, drawings, blueprints,
patents, patent applications, trademarks and the goodwill of the
business symbolized thereby, names, trade names, trade secrets,
goodwill, copyrights, registrations, licenses, franchises, customer
lists, security and other deposits, rights in all litigation presently
or hereafter pending for any cause or claim (whether in contract, tort,
or otherwise), and all judgments now or hereafter arising therefrom,
all claims of Borrower against Coast, rights to purchase or sell real
or personal property, rights as a licensor or licensee of any kind,
royalties, telephone numbers, proprietary information, purchase
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orders, and all insurance policies and claims (Including without
limitation life insurance, key man insurance, credit insurance,
liability insurance, property insurance and other insurance), tax
refunds and claims, computer programs, discs, tapes and tape files,
claims under guaranties, security interests or other security held by
or granted to Borrower, all rights to indemnification and all other
intangible property or every kind and nature (other than Receivables)
excluding, however, (i) the Initial Funding IV Receivables and (subject
to the terms of Section 45 below) any Future Funding IV Receivables,
(ii) the CSSI Receivables and (iii) the TCS Funding V Receivables."
"Receivable" means all of Borrower's now owned and hereafter
acquired accounts (whether or not earned by performance), letters or
credit, contract rights, chattel paper, instruments, securities,
documents, securities accounts, security entitlements, commodity
contracts, commodity accounts, investment property and all other forms
of obligations at any time owing to Borrower, all guaranties and other
security therefor, all merchandise returned to or repossessed by
Borrower, and all rights, of stoppage in transit and all other rights
or remedies of an unpaid vendor, lienor or secured party; excluding,
however, (i) the Initial Funding IV Receivables and (subject to the
terms of Section 4.5 below) any Future Funding IV Receivables, (ii) the
CSSI Receivables and (iii) the TCS Funding V Receivables."
2.2 Amendment to Section 4 of the Loan Agreement.
(a) Section 4.1 of the Loan Agreement is hereby amended by amending the
final parenthetical clause of such section to read as follows: "(all of the
foregoing, together with all other property in which Coast may now or in the
future be granted a lien or security interest, excluding, however, (i) the
Initial Funding IV Receivables and (subject to the terms of Section 4.5 below)
any Future Funding IV Receivables, (ii) the CSSI Receivables and (iii) the TCS
Funding V Receivables, is referred to herein, collectively, as the
'Collateral')."
(b) The Loan Agreement is hereby further amended by adding the
following new Sections after Section 4.6 thereof:
4.7 Release Of TCS Funding V Receivables. Coast
hereby (i) releases any and all right, title, and interest
Coast may have or hereafter acquire in the TCS Funding V
Receivables and (ii) consents to any sale, assignment,
transfer, or conveyance of, or granting of a security interest
in, the TCS Funding V Receivables by the Borrower to TCS
Funding V pursuant to the terms of the Receivables Purchase
Agreement. On or before the date of transfer of TCS Funding V
Receivables, Coast agrees to promptly take all further action,
and to promptly execute and deliver any UCC releases,
confirmatory letters, and/or any other document, reasonably
required by the Borrower (at the Borrower's expense) to
effect, evidence, complete, and/or confirm Coast's release of
the TCS Funding V Receivables.
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2.3 Amendment to Section 8.5(c) of the Loan Agreement. Section 8.5(c)
of the Loan Agreement is hereby amended by restating such subsection in its
entirety to read as follows:
"(c) make any investment, equity contribution, loan or other
transfer to any subsidiary or any other affiliate except for dividends
or distributions permitted under Section 8.5(k) hereof and except for
(i) loans or capital contributions to Credit Store Capital Corp.
specifically related to the acquisition of portfolios, (ii) loans or
capital contributions to TCS Funding IV in connection with the TCS
Funding IV Receivables Purchase Agreement, (iii) loans or capital
contributions to CSSI in connection with the CSSI Account Purchase
Agreement and (iv) loans or capital contributions to TCS Funding V in
connection with the TCS Funding V Receivables Purchase Agreement;
provided, however, Borrower may enter into joint ventures, reasonably
acceptable to Coast, and may contribute services to joint ventures (or
enter into service agreements with joint ventures), so long as Borrower
does not make an investment equity contribution or commingle the
collections of Receivables;"
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations And Warranties. Each of the parties hereto
represents and warrants to the other party that (a) it is duly organized and
existing in good standing under the laws of its jurisdiction of organization and
has full power and authority to make and deliver this Amendment, (b) the
execution, delivery, and the performance of this Amendment have been duly
authorized by all necessary action and do not and will not violate the
provisions of, or constitute a default under, any presently applicable law or
its organizational documents or any agreement presently binding on it, (c) this
Amendment has been duly executed and delivered by its duly authorized
attorney-in-fact, officer, or member as the case may be, and constitutes the
lawful, binding, and legally enforceable agreement and obligation of such party,
and (d) the authorization, execution, delivery, and performance of this
Amendment do not require notification to, registration with, or consent or
approval by, any federal, state, province, or local regulatory body or
administrative agency.
ARTICLE IV
MISCELLANEOUS
4.1 Ratification. The Amended Loan Agreement is hereby ratified,
approved, and confirmed in every respect, and shall remain in full force and
effect.
4.2 Further Assurances. The parties hereto agree to do and perform,
from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by the other party to this
Amendment to more fully effect the purposes of this Amendment and the amendments
and modifications contained herein, including, without
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limitation, the execution of any financing statements or continuation statements
or releases or amendments to financing statements or equivalent documents
relating to the TCS Funding V Receivables for filing under the provisions of the
Uniform Commercial Code as enacted in any applicable jurisdiction or other laws
of any applicable jurisdiction.
4.3. Execution in Counterparts and by Facsimile. This Amendment may be
executed in any number of counterparts (including facsimile counterparts) and by
the different parties on separate counterparts, each of which when so executed
and delivered shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same instrument.
4.4 Costs and Expenses. The Borrower agrees to pay all costs and
expenses in connection with the negotiation, preparation, execution, delivery,
and administration of this Fifth Amendment and any and all other documents
furnished in connection with the execution and delivery of this Amendment,
including reasonable attorneys' fees and expenses.
4.5 Governing Law. This Amendment shall be governed by, and construed
in accordance with, the internal laws (without regard to the conflict of laws
provisions) of the State of California.
(Signature Page Follows)
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE CREDIT STORE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Xx. VP
COAST BUSINESS CREDIT,
A division of Southern Pacific Bank
By: /s/ illegible, SVP
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(Signature Page 1 of 1 to the Tenth Amendment to Coast Loan Agreement)
