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SUBORDINATED GRID PROMISSORY NOTE
Sioux Falls, South Dakota
$20,000,000.00 August 1, 1997
FOR VALUE RECEIVED, Credit Store, Inc., a Delaware corporation (the
"Maker"), promises to pay to the order of J.L.B. of Nevada, Inc., a Nevada
corporation, or assigns ("JLB" or the "Holder"), ON DEMAND, the principal amount
of Twenty Million Dollars ($20,000,000.00) or such lesser amount as shall equal
the aggregate unpaid principal amount of the loans made by the Holder to the
Maker, together with interest on the unpaid principal amount hereof from the
date hereof until paid in full at a rate per annum equal to 12%, said interest
to be due and payable in monthly installments, beginning on August 31, 1997 and
continuing on the last day of each month thereafter until the payment in full of
all amounts outstanding under this Note. All payments hereunder shall be made in
lawful money of the United States of America, without offset.
1. Definition of Senior Debt. The term "Senior Debt" shall mean and
consist of all present and future indebtedness for borrowed money of the Maker
(contingently or otherwise), to banks, insurance companies and similar
institutional lenders (all such lenders, the "Lenders") and any extension,
replacement, removal, restatement or refinancing thereof.
2. Subordination.
(a) The payments of any and all of the principal amount of and
interest on this Note (and all other obligations hereunder) is hereby expressly
subordinated and made junior to the payment of the principal amount, redemption
premium, if any, all interest and any other amounts due on the Senior Debt, to
the extent and in the manner set forth herein.
(b) Until the Senior Debt shall have been indefensibly paid in
full, the Maker shall not make, and the Holder shall not receive, accept or
retain, any direct or indirect payment or reduction (whether by way of loan,
set-off or otherwise) in respect of the principal and interest of this Note,
whether this Note shall have become payable at maturity or by acceleration or
otherwise; provided, however, that, subject to the provisions of subsection (c)
hereof, the Maker may make, and the Holder may receive, accept and retain,
payments of principal and interest under this Note, unless, if, on the date such
payment would (but for the terms hereof) be payable to and received by the
Holder pursuant to this Note, (i) a default under the documents evidencing the
Senior Debt shall have occurred, shall be continuing and shall not have been
specifically waived in writing by the Lenders, or the Lenders shall
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have declared the Senior Debt or any portion thereof due and payable in full on
the basis of the occurrence of such default, or (ii) such default shall not be
continuing on any such payment date, but the Lenders shall have declared all or
any portion of the Senior Debt due and payable in full on the basis of the
occurrence of such default and such acceleration shall not have been
specifically rescinded in writing by the Lenders.
(c) In the event of (i) any insolvency, bankruptcy,
receivership, custodianship, liquidation, reorganization, readjustment of debt,
arrangement, composition, assignment for the benefit of creditors, or other
similar proceeding relative to the Maker, or (ii) any proceeding for voluntary
liquidation, dissolution or other winding up or bankruptcy proceedings, then and
in any such event:
(A) All of the Senior Debt shall first be paid in
full before any payment or distribution of any character,
whether in cash, securities, obligations or other property,
shall be made in respect of this Note;
(B) Any payment or distribution of any character
which would otherwise (but for the terms hereof) be payable or
deliverable in respect of this Note (including any payment or
distribution of any other indebtedness of the Maker being
subordinated to this Note), shall be paid or delivered
directly to the Lenders or their representative, until all of
the Senior Debt shall have been paid in full, and the Holder
irrevocably authorizes, empowers and directs all receivers,
custodians, trustees, liquidators, conservators and others
having authority to effect all such payments and deliveries;
(C) The Holder shall execute and deliver to the
Lenders or their representative all such further instruments
confirming the authorization referred to in the foregoing
clause (B), and shall take all such other actions as may be
requested by the Lenders or their representative in order to
enable the Lenders or their representative to enforce any and
all claims upon or in respect of this Note and to collect and
give any and all payments or distributions which may be
payable or deliverable at any time upon or with respect to
this Note.
(d) If, notwithstanding the provisions of this Note, any
payment or distribution of any character (whether in cash, securities, or other
property) or any security shall be received by the Holder in contravention of
the terms of this Note, and before all Senior Debt shall have been paid in full,
such payment, distribution or security shall not be commingled with any asset of
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the Holder, shall be held in trust for the benefit of, and shall be paid over or
delivered and transferred to, the Lenders or their representative, for
application to the payment of all Senior Debt remaining unpaid, until all of the
Senior Debt shall have been paid in full.
(e) This Note, without further reference, shall pass to and
may be relied on and enforced by any transferee or subsequent holder of the
Senior Debt.
(f) Except to the extent provided in this Note that the debt
evidenced by this Note may not become due and payable or be paid and the Holder
may not exercise rights with respect thereto, nothing contained herein shall
impair, as between the Maker and the Holder, the obligation of the Maker, to pay
to the Holder the principal of this Note, and interest thereon, as and when the
same shall become due and payable in accordance with the terms hereof, or
prevent the Holder upon default with respect to this Note, from exercising all
rights, powers and remedies otherwise provided herein or by applicable law, all
subject to the rights of the holders of Senior Debt hereunder. Upon any
distribution of assets of the Maker referred to in the provisions hereof, the
Holder shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending or a certificate of the liquidating
trustee or agent or other person making any distribution to the Holder, for the
purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Debt and other indebtedness of the
Maker, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to the provisions
hereof.
(g) Notwithstanding any statute, including, without
limitation, the Bankruptcy Code, any rule of law or bankruptcy procedures to the
contrary, the right of the Lenders hereunder to have all of the Senior Debt paid
and satisfied in full prior to the payment of any of the debt evidenced by this
Note shall include, without limitation, the right of the Lenders to be paid in
full all interest accruing on the Senior Debt due to it after the filing of any
petition by or against the Maker in connection with any bankruptcy or similar
proceeding or any other proceeding referred to in subsection 2(c) hereof, prior
to the payment of any amounts in respect of this Note, including, without
limitation, any interest due to the Holder accruing after such date.
(h) No right of any present or future holders of any Senior
Debt to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Maker or
by any act or failure to act in good faith by any such holders, or by any
noncompliance by the
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Maker with the terms and provisions of this Note, regardless of any knowledge
thereof with which any such holders may have or be otherwise charged. The
holders of the Senior Debt may, without in any way affecting the obligations of
the Holder with respect thereto, at any time or from time to time in their
absolute discretion, change the manner, place or terms of payment of, change or
extend the time of payment of, or renew or alter, any Senior Debt, or amend,
modify or supplement any agreement or instrument governing or evidencing such
Senior Debt or any other document referred to therein, or exercise or refrain
from exercising any other of their rights under the Senior Debt including,
without limitation, the waiver of default thereunder and the release of any
collateral securing such Senior Debt, all without notice to or assent from the
Holder.
(i) Subject to the prior payment in full of all Senior Debt,
the Holder shall be subrogated to the rights of the holders of Senior Debt to
receive payments or distributions of assets of the Maker applicable to the
Senior Debt until all amounts owing on this Note shall be paid in full, and for
the purpose of such subrogation no payments or distributions to the holders of
the Senior Debt by or on behalf of the Maker or by or on behalf of the Holder by
virtue of the provisions hereof which otherwise would have been made to the
Holder shall, as between the Maker, its creditors, other than the holders of the
Senior Debt, and the Holder, be deemed to be payment by the Maker to or on
account of the Senior Debt, it being understood that the provisions hereof are
and are intended solely for the purpose of defining the relative rights of the
Holder, on the one hand, and the holders of the Senior Debt, on the other hand.
3. Use of Grid. The Holder is hereby authorized by the Maker to endorse
on the schedule attached to this Note (or any continuation thereof) the amount
of each loan made by the Holder to the Maker, the date such loan is made, and
the amount of any payment or prepayment of such loan received by the Holder,
provided that any failure by the Holder to make any such endorsement shall not
affect the obligations of the Maker hereunder in respect of such loans. The
aggregate unpaid amount of loan advances is reflected on the schedule attached
to this Note and shall be presumptive evidence of the entire outstanding loan
amount.
4. Prepayment. Subject to the subordination provisions of Section 2 of
this Note, the unpaid principal amount of this Note may be prepaid in whole or
in part at any time or times without premium or penalty. Each prepayment shall
be applied first to the payment of all interest and other amounts accrued
hereunder on the date of any such prepayment, and the balance of any such
prepayment shall be applied to reduce the amount of the principal outstanding.
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5. Security Agreement. This Note evidences a loan advanced by JLB to or
for the benefit of the Maker. JLB, the Maker and the Maker's subsidiaries are
parties to a Security Agreement dated of even date herewith (the "Security
Agreement") that contains additional terms and conditions regarding the making
of the loan evidenced by this Note and a description of the collateral securing
such loan. Reference is made to the Security Agreement for such additional terms
and conditions and for a description of the collateral and additional rights and
remedies of the Holder.
6. Events of Default.
(a) The failure to pay, when due, the principal, any interest,
or any other sum payable hereunder, and continuance of such failure for five (5)
business days after the date on which such principal, installment of interest,
or other sum is due (whether upon maturity hereof, upon any installment payment
date, upon acceleration, or otherwise) shall constitute an event of default
("Event of Default") hereunder. Subject to the subordination provisions of
Section 2 in this Note, upon the occurrence of an Event of Default hereunder,
the entire principal amount hereof, and all accrued and unpaid interest thereon,
shall be accelerated, and shall be immediately due and payable, at the option of
the Holder, without demand or notice, and in addition thereto, and not in
substitution therefor, the Holder shall be entitled to exercise any one or more
of the rights and remedies exercisable by the Holder upon an Event of Default
under the Security Agreement or provided by applicable law. Failure to exercise
said option or to pursue such other remedies shall not constitute a waiver of
such option or such other remedies or of the right to exercise any of the same
in the event of any subsequent Event of Default hereunder.
(b) The Holder may, upon the occurrence of any such Event of
Default hereunder and subject to the subordinated provisions in Section 2 of
this Note, have resort to the collateral given as security for this Note, and
may sell and dispose of such collateral in whole or in part, at any time or from
time to time.
7. Expenses. The Maker promises to pay all costs and expenses
(including without limitation attorneys' fees and disbursements) incurred in
connection with the collection hereof or in the protection or realization of any
collateral now or hereafter given as security for the repayment hereof, and to
perform each and every covenant or agreement to be performed by the Maker under
this Note, the Security Agreement and any other instrument evidencing or
securing the obligation evidenced by this Note.
8. Payment Dates. Any payment on this Note coming due on a Saturday, a
Sunday, or a day which is a legal holiday in the place
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at which a payment is to be made hereunder shall be made on the next succeeding
day which is a business day in such place.
9. Waivers.
(a) The Maker hereby waives presentment, protest, demand,
notice of dishonor, and all other notices, and all defenses and pleas on the
grounds of any extension or extensions of the time of payments or the due dates
of this Note, in whole or in part, before or after maturity, with or without
notice. No renewal or extension of this Note, no release or surrender of any
collateral given as security for this note, and no delay in enforcement of this
Note or in exercising any right or power hereunder, shall affect the liability
of the Maker. The pleading of any statute of limitations as a defense to any
demand against the Maker is expressly waived.
(b) No single or partial exercise by the Holder of any right
hereunder, under the Security Agreement, or under any other agreement given as
security for this Note or pertaining hereto, shall preclude any other or further
exercise thereof or the exercise of any other rights. No delay or omission on
the part of the Holder in exercising any right hereunder shall operate as a
waiver of such right or of any other right under this Note.
10. Successors and Assigns. Whenever used herein, the words "Maker" and
"Holder" shall be deemed to include their respective successors and assigns.
11. Governing Law. This Note shall be governed by and construed under
and in accordance with the laws of the State of South Dakota (but not including
the choice of law rules thereof).
IN WITNESS WHEREOF, the undersigned has caused this Note to be duly
executed as of the day and year first hereinabove set forth.
CREDIT STORE, INC.
By: /s/ Martin Burke
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Title:
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SCHEDULE TO
GRID PROMISSORY NOTE
ADVANCES
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Amount of Unpaid
Date of Amount of Principal Principal Notations
Advance Advance Paid Balance Made by
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8/1/97 6,102,940
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8/6/97 5,500,000
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8/7/97 600,000
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8/19/97 1,000,000
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8/29/97 2,250,000
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