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AMENDMENT
TO THE
MUTUAL BUSINESS DEVELOPMENT AGREEMENT
Amendment dated as of September 1, 1998 (the "Amendment") to the MUTUAL
BUSINESS DEVELOPMENT AGREEMENT dated as of October 8, 1996 (the "MBDA"), as
amended, between THE CREDIT STORE, INC. a Delaware corporation (the "Company")
and EIKOS MANAGEMENT LLC, an Isle of Man limited liability company ("Eikos").
W I T N E S S E T H:
WHEREAS, the Company is the successor by merger to Service One
International Corporation ("SOIC"), one original signatory to the MBDA; and
WHEREAS, Eikos, the Non-U.S. Based Enterprise, is the assignee of the
MBDA, as amended, including Sections 3 and 4 of the First Amendment (hereafter
defined) from the O. Pappalimberis Trust (the "Trust"), the other original
signatory to the MBDA and First Amendment; and
WHEREAS, the Company, SOIC, Eikos, the Trust and certain other parties
entered into those certain Amendments to Mutual Business Development Agreement,
Non-Competition Agreement and Stock Purchase Agreement dated as of December 16,
1997 (the "First Amendment") amending, among other things, certain provisions of
the MBDA; and
WHEREAS, the Company desires an option from Eikos to terminate its
interest in the MBDA, and Eikos desires to provide an option to the Company, on
the terms and conditions set forth herein and Eikos desires to extend the term
of the Agreement in the event such option is not exercised; and
WHEREAS, for the considerations set forth herein and in order to
facilitate the method of payment and accounting therefor under the MBDA, the
Company and Eikos have agreed to amend certain of the terms of the MBDA; and
WHEREAS, as a condition of the aforesaid amendment, the parties have
agreed to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, do hereby agree as follows:
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1. Section 2 of the MBDA is amended in its entirety to read as follows:
Term. The term of the Agreement ("Term") shall commence on
October 8, 1996 and shall expire at the close of business on May 31,
2005 (the "Termination Date"), provided, however, that if the Company
shall exercise the Option as provided in Subsection 3(c)(v), the
Agreement shall terminate on the earlier of the receipt of Final
Option Payment or the Termination Date.
2. Section 4 of the First Amendment is hereby deleted in its entirety.
3. Sections 3(a) through 3(c) of the MBDA are amended in their entirety to
read as follows:
(a) Upon notice to the Company that the Trust has
completed the formation, organization, and initial financing of the Non-U.S.
Based Enterprise, and without regard to any other activity or the success
thereof, as full compensation therefor, the Company shall pay the Trust or if
the Trust forms a separate entity (whether or not a corporate entity) the
Company shall pay to such entity:
(i) within four days after the signing of
this Agreement and thereafter prior to or on the fifth day of each of the 11
subsequent calendar months, a base fee in the amount of $42,500 (net of any
amounts of such payment required to be withheld under applicable law, if any);
and, in addition,
(ii) with respect to Net Proceeds upon the
Disposition of a Portfolio (as such terms are defined in Subsection 3(b)) owned
by the Company or any Company Affiliate (as defined in Subsection 7(r)(ii)
hereof) at any time during the Term or a credit card account becoming a
Qualifying Receivable (as defined below) at any time during the Term, an amount
equal to 5% of such Net Proceeds (net of any amounts required to be withheld
under applicable law and regulations); provided that, subject to the provisions
of Subsection 3(d) and 3(e), no such payment shall be made if the aggregate
amount of the 5% Fee (as defined below) plus Monthly Payments (as defined below
paid to the Trust hereunder equals $24,000,000 (The parties acknowledge that
this amount was reduced from the $25,000,000 figure that originally appeared in
the MBDA as a result of the Consideration, as that term is defined in the First
Amendment, that is to be deducted from the payment of the 5% Fee.).
Notwithstanding the foregoing, if a Portfolio is owned by the Company during the
Term, or Additional Term (as defined below), any Net Proceeds or other
collections with respect to such Portfolio received after the Term or Additional
Term shall nevertheless be treated as having been received during the Term or
Additional Term, as the case may be.
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The fees described in sections a) through e)
below (referred to herein collectively as the "5% Fee") shall be earned and,
subject to Section 3(c), paid in accordance with the following schedule:
a) Upon the earlier to occur of
delivery of the originated Balance
Transfer Amount to a
"pre-securitization credit
facility" (warehouse line) or a
credit card account becoming a
Qualifying Receivable, an amount
equal to 5% of the related Net
Proceeds shall be deemed earned, of
which 25% shall be payable to the
Trust.
b) After occurrence of either of the
above events, upon the earlier to
occur of delivery of the
receivables, as to which a fee was
earned under section a) above, to a
securitization facility (or any
other Disposition) or the passage
of 11 months from the Credit Card
Origination Date, the 75% balance
of the earned, but unpaid, 5% Fee
shall be payable to the Trust.
c) If following the Credit Card
Origination Date an Account does
not become a Qualifying Receivable
and has not been delivered to a
"pre-securitization credit
facility" (warehouse line), or a
securitization facility and
Disposition has not been effected
with respect to such Account, no
amount of the 5% Fee shall be
earned or paid until the first day
of the 11th month after the Credit
Card Origination Date and, on that
date, if the Account is or becomes
Current, the full 5% of the Net
Proceeds shall be payable to the
Trust with respect to such Account.
d) If on the first anniversary of the
Credit Card Origination Date of an
Account, no amounts have previously
been paid to the Trust with respect
to such Account and the Account is
not more than 59
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days delinquent, a fee equal to
2 1/2 percent of the Balance
Transfer Amount with respect to
such Account shall be payable to
the Trust.
e) With respect to any Subpar Account,
as defined below, an amount equal
to 5% of all cash collections and
profits from resale shall be
payable to the Trust when received.
"Subpar Account" shall mean any
Account, with respect to which cash
or profits from resale is received
and which did not result in a
Balance Transfer Amount or payment
of any fee hereunder. "Cash
collections" as used in this
Subsection (e) shall exclude that
portion of any cash collections
from Subpar Accounts that the
Company is required to pay to
sellers from whom the Company
purchased Accounts, participants or
brokers in which the Company has
neither a direct or indirect
ownership interest. "Profits from
resale" shall be determined by
allocating to each Subpar Account
its pro rata acquisition cost
(purchase price and capitalized
costs of acquisition, including
broker's and attorney's fees and
electronic data scrubbing costs)
based upon the number of Accounts
in the Portfolio with which it was
acquired and subtracting therefrom
its pro rata sales price (sales
price minus broker's and attorney's
fees) based upon the number of
Accounts in the Portfolio with
which it is sold.
(b) For this Purpose:
(i) "Account" means the contractual account
or other agreement between a consumer and the issuer of the credit (including,
but not limited to, credit card, consumer installment and automobile lenders) or
its assignee as creditor of such account, irrespective of whether the account
debtor's obligation was discharged in bankruptcy.
(ii) "Balance Transfer Amount" means any
newly established receivable balance originated or acquired by the Company by
way of
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an Account, which is not to include new charges on the Account subsequent to the
initial receivable amount. Subject to the provisions of the next sentence, all
computations of the 5% Fee shall be derived using the original Balance Transfer
Amount irrespective of whether the cardholder has paid principal down below the
original Balance Transfer Amount or charged more than the Balance Transfer
Amount at the time of any of the 5% Fee payment obligations. If the Company is
obligated with respect to Accounts with a Balance Transfer Amount to pay
proceeds from the sale, financing, securitization or collections thereon to
sellers from whom the Company purchased Accounts, participants or brokers in
which the Company has neither a direct or indirect ownership interest, then the
amount of such payments shall be deducted form the Balance Transfer Amount of
such. Accounts and the amount of marketing, servicing fees or any other income
received from such sellers from whom the Company purchased Accounts or
participants for such Accounts shall be added to the Balance Transfer Amount;
provided, however, that the Balance Transfer Amount shall never exceed the
original Balance Transfer Amount. If payments to or receipt of income from such
sellers from whom the Company purchased Accounts, participants and brokers
occurs after the calculation or payment of the 5% Fee, then the amount of the 5%
Fee shall be recalculated to take account for such payments or income.
(iii) "Base Proceeds" of a Disposition means
20% of the total Balance Transfer Amount of a Portfolio pursuant to the
agreements or instruments relating to such Disposition.
(iv) "Credit Card Origination Date" means
the recorded date that the credit card account is booked on the credit card
system (FDR or other such similar system.
(v) "Current" means, with respect to an
Account, that there is no payment which is unpaid more than ten days after the
due date.
(vi) "Disposition" means with respect to a
Portfolio any sale, securitization or other disposition of any interest in a
Portfolio (or the accounts receivable generated upon collection of amounts owed
on Accounts included in the Portfolio) that results in the actual receipt of
Proceeds by the Company or any Company Affiliate.
(vii) "Net Proceeds" of a Disposition means
the Proceeds of such Disposition after deduction of the Base Proceeds of such
Disposition.
(viii) "Portfolio" means a group of Accounts
acquired or originated by the Company prior to expiration of the Term, without
regard to the time of any Disposition or other event requiring payment to take
place.
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(ix) "Proceeds" of a Disposition means
eighty percent (80%) of the newly originated Balance Transfer Amount or credit
card receivable.
(x) "Qualifying Receivable" means any
Balance Transfer Amount on which the cardholder has made three consecutive
payments, any two of which must have been made no later than ten days after the
payment due date, and any one payment must not have been made more than 29 days
past its scheduled due date.
(c) Payments and Option.
(i) From the date of this Amendment until
May 31, 2005 (at which time the Initial Final Payment, if any, shall be due),
the Company shall not make any payments of the 5% Fee to the Trust. Provided
that the Company has not exercised the Option as provided in Subsection (v)
below, commencing June 1, 1999 and on the first day of each succeeding month
during the Term, the Company shall pay to the Trust or its assignee on account
of the 5% Fee (A) the sum of $75,000 in immediately available funds (the
"Monthly Payment"), and (B) at the option of the Company, $22,500 in immediately
available funds or $25,000 in aggregate principal amount of current credit card
receivables for which at least one payment has been received on each associated
account (the "Deferral Fee"). The payment of the Monthly Payment and the
Deferral Fee shall only become due and payable by the Company upon its receipt
of reasonable resolutions or evidence of entity authority (and individual
authority on behalf of the entity) to execute and deliver this Amendment. As
used herein, "current credit card receivables" shall mean receivables associated
with credit card accounts for which the minimum required payments are not more
than 30 days past the statement due date and not otherwise in default under any
applicable account agreements. Notwithstanding the foregoing, if the Monthly
Payment and Deferral Fee are not timely paid, then the amount of such nonpayment
shall be subject to the provisions of Section 3 (d) below for purposes of
determining if the Company has failed to pay any amount in excess of the
Threshold Amount during any year (measured from June 1 through May 31). For
purposes of Section 3 (d), the Company shall been deemed to have fully and
timely paid all amounts of the 5% Fee required to be paid from October 8, 1996
through June 1, 1998. With respect to credit card receivables delivered to the
Trust as payment of the Deferral Fee or which were delivered prior to the date
of this Amendment as payment of the 5% Fee, the following provisions shall apply
from and after the date of this Amendment:
a) Effective as of the delivery date
of the credit card receivables, the
Trust agrees to assume all
obligations of the Company to
cardholders under the respective
cardholder agreements that
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are to be performed on or after the
delivery date. Such obligations
assumed by the Trust shall include
(a) funding by the Trust of all new
purchases and cash advances on the
credit card accounts made after the
delivery date, and (b) all
liability for cardholder claims for
fraud, refunds, reversals or
charge-backs made with respect to
charges on the credit card accounts
for charges made after the delivery
date. The Trust, on a quarterly
basis, shall place on deposit with
the Company an amount equal to the
contingent liability and reserve
requirements under the Company's
agreements with the issuing bank
for such credit card accounts
("Reserve Deposit"). Except as
specifically provided in this
Agreement, the transfer of the
credit card receivables is made
without recourse to the Company,
and are transferred "as is",
without any representation or
warranty of any kind, nature or
extent. The Company represents and
warrants that as of the delivery
date (i) it has full right to
transfer the credit card accounts
free and clear of any encumbrance,
lien or pledge, (ii) the Balance
Transfer Amount on the Credit Card
Origination Date had not been
discharged in bankruptcy, and (iii)
the obligations represented by the
credit card receivables, are valid,
duly enforceable in accordance with
their terms and are not subject to
any defenses, offsets,
counterclaims or claims for
avoidance, reduction, expungement
or subordination.
b) The Company shall service the
credit cards pursuant to the terms
and provisions set forth in Exhibit
"A" attached hereto. Each time the
total balance of credit card
receivables that
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the Company is servicing for the
Trust (including the balance of
receivables that may have been
transferred to third parties)
equals $500,000 or more
(irrespective of the delinquency
status of the receivables), then
the Trust, at its expense
(including the payment or
reimbursement of system and
conversion fees) shall transfer all
credit cards accounts (including
accounts associated with
receivables that may have been
transferred to third parties or
charged off) to a new third party
issuing bank and servicer within
thirty (30) days following the date
on which such receivables total
$500,000 ("Required Transfer
Date)..The Trust represents and
warrants that from and after the
date of transfer of the credit card
receivables to a third party
issuing bank and servicer, the
credit card receivables, shall be
established, serviced and collected
in compliance in all material
respects with applicable laws,
rules and regulations. As
compensation for its servicing
activities with respect to the
credit card accounts, the Trust
shall pay to the Company a
servicing fee equal to $5.00 per
month per statemented credit card
account, which fee, except as set
forth above, shall be inclusive of
third party fees and expenses in
connection with servicing the
credit card accounts. If, for any
reason whatsoever except to the
extent of actual delays directly
caused by the Company, the credit
card accounts have not been
transferred to a new third party
issuing bank and servicer on or
before the Required Transfer Date,
then the servicing fee shall
increase by fifty cents per card
per month for each month after the
Required Transfer Date until the
date of such transfer to a third
party. The servicing fee shall be
due and payable to the Company each
month within
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fifteen (15) days following the
Company's delivery of an invoice
for such fees. The Company shall be
entitled to deduct (i) such
servicing fees; (ii) shortfalls by
the Trust in funding (a) new
purchases and cash advances, and
(b) fraud, refunds, reversals and
charge-backs; (iii) system and
conversion fees; and (iv) the
Reserve Deposit, from any net
proceeds which may be due to the
Trust from the credit card accounts
and from the Reserve Deposit.
(ii) within ninety (90) days after May 31,
2005, the Company shall pay to the Trust or its assignee, in immediately
available funds, a sum (the "Initial Final Payment") equal to the sum of all
amounts in respect of the 5% Fee accrued during the Term (but in no event shall
amounts so accrued exceed $25,000,000), less (i) the sum of all Monthly Payments
paid during the Term, (ii) less $1,000,000, and (iii) less the amount of the 5%
Fee paid by the Company with respect to periods from October 8, 1996 through
September 1, 1998, as such amount may be adjusted pursuant to the provisions of
Section 5 of this Amendment;
(iii) within ninety (90) days after the
termination date of the Additional Term, if any, the Company shall pay to the
Trust or its assignee, in immediately available funds, a sum (the "Additional
Final Payment") equal to one-half of the 5% Fee in accordance with the
provisions of Section 3(e) of the Agreement;
(iv) Intentionally Omitted.
(v) commencing on December 31, 1998 and
continuing through December 31, 1999, the Company shall have an option (the
"Option") to acquire from Eikos all rights and benefits under the Agreement, as
amended, as follows:
(A) The Company shall pay the sum of
$100,000 to Eikos as the purchase price for the Option (The prior payment of
which is hereby acknowledged by Eikos);
(B) in the event that the Company elects
to exercise the Option, the Company shall deliver, on or before December 31,
1999, written notice to Eikos of its decision to exercise the Option together
with its promissory note (the "Note") in the principal amount of twelve million
dollars, ($12,000,000), bearing interest at a rate of 5.0% per annum from the
date the Option is exercised, payable as follows: seven million dollars
($7,000,000)
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in immediately available funds (the "Initial Option Payment")
within ninety (90) days of delivery of the Note, and, five million dollars
($5,000,000) in immediately available funds (the "Final Option Payment") within
one (1) year of delivery of the Note; and
(C) in the event that the Company shall
exercise the Option pursuant to clause (B) above then, concurrent with the
exercise, the obligation to pay the Monthly Payment and Deferral Fee shall
terminate; provided, however, if the Company shall fail to make either the
Initial Option Payment or the Final Option Payment in a timely manner, Eikos
shall elect, within 90 days following such failure, at its option, to (i) cancel
the Option and revert to payment of the 5% Fee in accordance with this Agreement
(subject to the Company receiving credits against Monthly Payments and Deferral
Fees for the amount of interest paid under the Note and for the Initial Option
Payment, if paid), or (ii) collect on the Note, receive interest at a rate of
fifteen percent (15%) per annum on the unpaid balance of the Note (including
accrued interest thereon), and receive its costs of collection, including
reasonable attorney's fees. Failure by Eikos to make its election within said 90
period, shall be deemed its election to cancel the Option pursuant to Subsection
(i).
4. The second sentence of Section 3 of the First Amendment is hereby amended
in its entirety as follows:
The Consideration shall be, in a single lump sum, (a) deemed paid in
connection with the Final Option Payment if the Option has been
exercised, as such terms are defined in subsection 3(c)(v)(B) of the
MBDA, or (b) deducted from the Initial Final Payment as and when made.
5. On or before June 1, 1999, Eikos, pursuant to the provisions of
Section 3(f) of the Agreement, shall conduct an audit of the 5% Fee due pursuant
to this Agreement from its inception through September 1 1998 ("Audited
Period"). If it is determined that there has been an underpayment for the
Audited Period, then for the next 12 installments of the Deferral Fee due
following such determination, one-twelfth of the amount of the underpayment
shall be added to the Deferral Fee due and payable by the Company. If it is
determined that there has been an overpayment, then for the next 12 installments
of the Deferral Fee due following such determination, one-twelfth of the amount
of the overpayment shall be deducted from the Deferral Fee due and payable by
the Company. If it is determined that there has been an overpayment of more than
$300,000, then the number of installments will be increased from 12 to the
number necessary to properly adjust for the amount of the overpayment. For each
$22,500 of the cash equivalent amount of overpayments or underpayments of the 5%
Fee, an adjustment hereunder of $25,000 in Deferral Fees shall be made. If the
determination has not been made by June 1, 1999, then the Company shall not be
obligated to make the Deferral Fee until the earlier of (i) June 1, 2000, or
(ii) the first day of the month following the month in which the determination
is made
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("Automatic Deductions"). The amount of any Automatic Deductions made shall
be included in the calculation of whether an overpayment or underpayment of the
5% Fee has been made for the period from the inception of this Agreement
through the date of this Amendment. With respect to overpayments and
underpayments for the period governed by this Section 5, the timing for the
payment of such amounts shall be as set forth in this Section without regard to
the timing provisions of Section 3 (f) of the Agreement.
6. Eikos represents and warrants that it is the sole owner of all right, title
and interest in and to: (i) the MBDA and Sections 3 and 4 of the First
Amendment, and the right to receive payments thereunder, and that it has not
transferred or pledged all or any interest in same, and (ii) all credit cards
previously delivered by the Company to Eikos in satisfaction of the Company's
obligations to pay the 5% Fee and that Eikos has not transferred all or any
interest in same.
7. Capitalized terms used herein without being defined shall have the meanings
given to them in the MBDA or First Amendment. The term "Trust" when used in the
MBDA, First Amendment and this Amendment shall mean Eikos. As used in Section 3
above (which modifies Sections 3(a) through 3(c) of the MBDA) the term
"Agreement" shall mean the MBDA, the term "Amendment" shall mean this Amendment,
and the term "date of this Amendment" shall mean the date of this Amendment.
8. Except as otherwise provided herein, the MBDA is not changed and remains in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first set forth above.
THE CREDIT STORE, INC., EIKOS MANAGEMENT LLC, an
a Delaware corporation Isle of Man Limited Liability
Company
By Ionian Trust Company
Limited, a Republic of Ireland
Corporation
Its Administrative Member
By: /s/ Martin J. Burke
------------------------------ By: /s/ Derek M. Galanis
Martin J. Burke ------------------------------
Chairman and CEO Derek M. Galanis
President
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