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FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
This FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Fourth
Amendment") dated as of May 27, 1999 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 by the First Amendment to Loan and Security
Agreement dated as of September 30, 1998, the Second Amendment to Loan and
Security Agreement dated as of December 1, 1998 and the Third Amendment to Loan
and Security Agreement dated as of April 27, 1999 (as heretofore amended, the
"Loan Agreement") and as amended by this Fourth 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 its assets, including, without limitation, the Borrower's
right, title, and interest in Receivables (including the Funding III
Receivables, as defined below) and collections related thereto.
The Borrower and TCS Funding III, 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 "Funding III Receivables").
To finance the purchase of the Funding III Receivables, the Buyer, the
Borrower, and Miller & Schroeder Investments Corporation, a Minnesota
corporation (the "Lender"), have entered into a Credit and Security Agreement
(the "Credit Agreement") of even date herewith pursuant to which the Lender
agrees to extend a term loan to the Buyer, which loan is to be secured by, among
other things, a first priority security interest in and lien upon the Funding
III Receivables.
As a condition precedent to disbursing the term loan under the Credit
Agreement, the Lender requires the due execution and delivery of this Fourth
Amendment 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 Funding III 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:
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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 III Receivables" means any of the "Conveyed Property" (as
defined in the Receivables Purchase Agreement), whether now existing or
hereafter arising, to be transferred by the Borrower to TCS Funding III and
associated with the credit card accounts listed on Annex G hereto.
"TCS Funding III" means TCS Funding III, Inc., a Delaware corporation.
"Funding III Receivables Purchase Agreement'' means the Receivables
Purchase Agreement dated as of May 27, 1999 by and between the Borrower, as
seller, and TCS Funding III, 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 ligation 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
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
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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, the Initial Funding I Receivables and (subject to the
terms of Section 4.3 below) any Future Funding I Receivables, the Initial
Funding II Receivables, (subject to the terms of Section 4.5 below) and
Future Funding II Receivables and the Funding III Receivables."
"Receivables" means all of the 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, the Initial Funding I
Receivables and (subject to the terms of Section 4.3 below) any Future
Funding I Receivables, the Initial Funding II Receivables, (subject to the
terms of Section 4.5 below) any Future Funding II Receivables and the
Funding III 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, the Initial
Funding I Receivables, the Initial Funding II Receivables, the Funding III
Receivables and (subject to the terms of Sections 4.3 and 4.5, respectively,
below), any Future Funding I Receivables and any Future Funding II 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 4.5 thereof:
4.6 Release of Funding III Receivables. Coast hereby (i)
releases any and all right, title, and interest Coast may have or
hereafter acquire in the Funding III Receivables and (ii) consents to
any sale, assignment, transfer, or conveyance of, or granting of a
security interest in, the Funding III Receivables by the Borrower to
TCS Funding III pursuant to the terms of the Receivable Purchase
Agreement. On or before the date of transfer of the Funding III
Receivables, Coast agrees to promptly take all further action, and to
promptly execute and deliver any UCC releases, confirmatory letters,
and/or any other documents, reasonably required by the Borrower (at
the Borrower's expense) to effect, evidence, complete, and/or confirm
Coast's release of the Funding III 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 of up to $25,000 per month by Borrower to
Borrower's subsidiary Sleepy Hollow Associates, Inc., (ii) loans or capital
contributions to TCS Funding I in connection with the Funding I Receivables
Purchase Agreement, (iii) loans or capital contributions to TCS Funding II
in connection with the Funding II Receivables Purchase Agreement, and (iv)
loans or capital contributions to TCS Funding III in connection with the
Funding III 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;"
2.4 Addition of Annex C to the Loan Agreement. The Loan Agreement is
hereby Amended by adding Annex A hereto as Annex C to the Loan Agreement.
ARTICLE III
PRESENTATIONS 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 Fourth Amendment, (b) the
execution, delivery, and performance of this Fourth 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
Fourth 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 Fourth
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.
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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 Fourth Amendment to
more fully effect the purposes of this Fourth Amendment and the amendments and
modifications contained herein, including, without limitation, the execution of
any financing statements or continuation statements or releases or amendments to
financing statements or equivalent documents relating to the Funding III
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 Fourth 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 Fourth Amendment and any and all other documents
furnished in connection with the execution and delivery of this Fourth
Amendment, including reasonable attorneys' fees and expenses.
4.5 Governing Law. This Fourth 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 Fourth Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE CREDIT STORE, INC.
By /s/ [Illegible]
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Its CFO
COAST BUSINESS CREDIT,
a division of Southern Pacific Bank
By /s/ [Illegible]
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Its VP
(Signature Page 1 of 1 to the Fourth Amendment to Loan Agreement)