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EXHIBIT 10.44
EXECUTION COPY
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ACCOUNT PURCHASE AGREEMENT
dated as of October 31, 2000
by and among
THE CREDIT STORE, INC.,
as the Seller,
and
CREDIT STORE SERVICES, INC.,
as the Buyer
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ACCOUNT PURCHASE AGREEMENT
ACCOUNT PURCHASE AGREEMENT, dated as of October 31, 2000 (this
"Agreement"), by and between THE CREDIT STORE, INC., a Delaware corporation
("TCSI" or the "Seller"), and CREDIT STORE SERVICES, INC., a Delaware
corporation (the "Buyer").
WHEREAS, the Seller wishes to sell and assign to the Buyer
from time to time on or after the Closing Date some or all of the Unconverted
Accounts (as defined below) owned by the Seller.
WHEREAS, the Seller understands that the Buyer will use the
purchased Accounts as collateral for loans made under the Loan Agreement (as
defined below).
WHEREAS, the Buyer, a wholly owned subsidiary of the Seller,
desires to purchase from time to time such Eligible Accounts from the Seller
upon the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Buyer and the Seller hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. For all purposes of this Agreement,
except as otherwise expressly provided herein or unless the context otherwise
requires, capitalized terms used herein shall have the following meanings
assigned to them:
"Account Documents" means any application, loan agreement,
credit agreement, revolving loan contract, promissory note, billing
statement or record, record of debt, notice, correspondence, cardholder
agreement, account, chattel paper or other credit or debit instrument
that relates to an Account.
"Account(s)" means each Unconverted Account owned by the
Seller and identified in the Seller's records as Pool Identification
Number 2000100 that either (a) was an Eligible Account on the Closing
Date or (b) becomes an Additional Account after the Closing Date. The
term "Account" refers to an Additional Account only from and after the
Addition Date on which it is purchased by the Buyer.
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"Addition Date" means a date on which the Seller designates
one or more Unconverted Accounts as Additional Accounts and the Buyer
purchases such Unconverted Accounts pursuant to Section 2.1.
"Additional Accounts" means each Eligible Account identified
in the Seller's records as Pool Identification Number 2000100 that is
designated as an Additional Account pursuant to Section 2.2.
"Affiliate" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. A Person shall be deemed to control
another Person if the controlling Person possesses, directly or
indirectly, the power to direct or cause the direction of the
management and policies of the other Person, whether through the
ownership of voting securities, by contract or otherwise.
"Asset Purchase Agreement" means an agreement under which the
Seller has purchased Accounts from a third party.
"Bankruptcy Code" means the provisions of Title 11 of the
United States Code, 11 U.S.C. ss.ss. 101 et seq.
"Chattel Paper" means any "chattel paper," as such term is
defined in the Code.
"Closing Date" means October 31, 2000.
"Closing Fees and Expenses" with respect to the Closing Date
or any Addition Date, means the broker's fees, legal expenses and other
fees and expenses agreed upon by the Buyer and the Seller for the
Accounts being purchased on such date.
"Code" means the Uniform Commercial Code as the same may, from
time to time, be enacted and in effect in the State of South Dakota,
including after July 1, 2001.
"Conveyed Property" has the meaning set forth in Section
2.1(a).
"Credit Collection Laws" means state and federal laws
governing the business of collecting consumer debt, including without
limitation, the Fair Debt Collection Practices Act, the Federal
Consumer Credit Protection Act and Regulation Z issued thereunder, the
Federal Equal Credit Opportunity Act and Regulation B issued thereunder
and the Bankruptcy Code.
"Eligible Account" means Unconverted Accounts in portfolios,
the purchase of which by the Buyer has been authorized by the Lender.
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"Forward Flow Agreement" means an Asset Purchase Agreement
pursuant to which the Seller purchases a series of portfolios of
Unconverted Accounts from a third party over a period of time at a
fixed price.
"General Intangibles" means any "general intangibles," as such
term is defined in the Code.
"Ineligible Account" has the meaning given such term in
Section 6.1(a).
"Instruments" means any "instruments," as such term is defined
in the Code.
"Lender" means The Varde Fund IV-A, L.P., a Delaware limited
partnership, and its successors and permitted assigns under the Loan
Agreement.
"Lien" means a lien, security interest, pledge, hypothecation,
collateral assignment, charge, encumbrance, or other right or claim of
any Person other than an unfiled lien for tax accrued but not yet
payable.
"Loan Agreement" means the Master Loan and Servicing Agreement
of even date herewith by and among the Buyer, as borrower, the Lender,
as lender, and the Seller, as servicer, as such agreement is amended,
modified or supplemented from time to time.
"Material Adverse Effect" means, with respect to any event or
circumstance, a material adverse effect on:
(a) the ability of the Seller or the Buyer to perform
its obligations under this Agreement;
(b) the validity or enforceability of this Agreement;
(c) the status, existence, perfection, priority or
enforceability of the sale of the Accounts pursuant to this
Agreement; or
(d) the validity, enforceability or collectibility of
the Accounts, taken as a whole.
"Obligor" means any person obligated with respect to an
Account.
"Person" means any natural person, limited liability company,
corporation, partnership, joint venture, firm, association, trust,
unincorporated organization, governmental agency or political
subdivision or any other entity, whether acting in an individual,
fiduciary or other capacity.
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"Proceeds" means "proceeds" as defined in Section 9-306(1) of
the Code.
"Purchase Price" has the meaning set forth in Section 3.1.
"Relevant UCC State" means each jurisdiction in which the
filing of a Uniform Commercial Code financing statement is necessary to
perfect the ownership interest and security interest of the Buyer
established under this Agreement.
"Unconverted Account(s)" means charged off consumer debt,
including accounts receivable, other receivables, book debts and other
forms of obligations including (a) "accounts," as such term is defined
in the Code (including any such obligation that may be characterized as
an account or contract right under the Code), (b) Chattel Paper or
Instruments, and (c) all General Intangibles consisting of a right to
receive a payment of money.
Section 1.2 Other Definitional Provisions. The words "hereof,"
"herein," and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. Section and Schedule references contained in this
Agreement are references to Sections and Schedules in or to this Agreement
unless otherwise specified. All capitalized terms not otherwise defined in this
Agreement have the meanings given such terms in the Loan Agreement. In the event
that any terms or provision contained herein conflicts with or is inconsistent
with any term or provisions contained in the Loan Agreement, the terms and
provisions contained herein will govern with respect to this Agreement.
Section 1.3 Computation of Time Periods. Unless otherwise
stated in this Agreement, in the computation of a period of time from a
specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but excluding."
ARTICLE II
PURCHASE AND CONVEYANCE
Section 2.1 Sale.
(a) Assets Conveyed. In consideration for the Purchase Price
and upon the terms and subject to the conditions set forth herein, the
Seller does hereby sell, assign, transfer, set-over, and otherwise
convey to the Buyer, and the Buyer does hereby purchase from the
Seller, all of the Seller's right, title, and interest in, to, and
under (i) the Accounts now existing and hereafter acquired (including
the Additional Accounts), including, without limitation, all
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accounts, General Intangibles, Chattel Paper, contract rights,
Instruments and other obligations of any Obligor with respect to the
Accounts, now or hereafter existing, including, without limitation, (A)
any interest, or other fees received by the Seller with respect to such
Accounts, (B) the account relationship, (C) any Account Document with
respect to the Accounts and (D) any judgments founded upon an
obligation or Account Document and any lien arising therefrom, (ii) all
collections on and net recoveries in respect of such Accounts from and
after the effective date of sale hereunder, (iii) the related Asset
Purchase Agreements, and (iv) all Proceeds of any of the foregoing (all
of the foregoing collectively, the "Conveyed Property").
(b) Financing Statements. In connection with the foregoing
sale, the Seller has recorded and filed at its own expense, a financing
statement with respect to the Conveyed Property and the Seller agrees
to deliver a file-stamped copy of such financing statement or other
evidence of such filings to the Buyer and the Lender within 10 days
after the Closing Date.
(c) Marking Records; Lists of Accounts. In connection with the
sale and conveyance hereunder, the Seller agrees, at its own expense,
on or prior to the Closing Date or respective Addition Date, as
applicable, to indicate or cause to be indicated clearly and
unambiguously in its accounting records that the Conveyed Property has
been sold to the Buyer pursuant to this Agreement. Within ten Business
Days of the Closing Date, the Seller will provide the Buyer with a list
(which may be in electronic format) of the Accounts sold to the Buyer
on the Closing Date. Within ten Business Days of each Addition Date,
the Seller will deliver a list (which may be in electronic form) of the
Unconverted Accounts sold to the Buyer as Additional Accounts on such
Addition Date.
(d) Sale Intended; Security Interest. It is the express intent
of the Seller and the Buyer that the conveyance of the Conveyed
Property by the Seller to the Buyer pursuant to this Agreement be
construed as a true sale thereof by the Seller to the Buyer and not a
grant of a security interest in the Conveyed Property by the Seller to
the Buyer to secure a debt or other obligation of the Seller. However,
if notwithstanding the intent of the parties, a court of competent
jurisdiction holds that the conveyance of the Conveyed Property is not
a true sale of the Conveyed Property from the Seller to the Buyer, then
(i) this Agreement also shall be deemed to be and hereby is a security
agreement within the meaning of the Code, (ii) this Agreement and the
Seller's books and records shall evidence the Buyer's obligation to pay
the Purchase Price, and (iii) the conveyance by the Seller provided for
in this Agreement shall be deemed to be, and the Seller hereby grants
to the Buyer a security interest in and to, all of the Seller's right,
title, and interest in the Conveyed Property to secure all obligations
now or hereafter arising of the Seller to the Buyer, including, without
limitation, loans to the Seller in the
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amount of the aggregate Purchase Price paid as set forth in this
Agreement. The Seller and the Buyer shall, to the extent consistent
with this Agreement, take such action as may be necessary to ensure
that, if this Agreement were deemed to create a security interest in
the Conveyed Property, such security interest would be deemed to be a
first priority perfected security interest in favor of the Buyer under
applicable law and will be maintained as such throughout the term of
this Agreement (except for Chattel Paper and Instruments not in the
possession of the Seller and therefore not in the possession of the
Buyer). The Seller and the Buyer may rely upon an opinion of counsel
addressed to them as to what is required to provide the Buyer with such
security interest; and any such opinion of counsel shall permit the
Lender to rely on it.
Section 2.2 Addition of Accounts. From time to time during the
term of this Agreement, the Seller may agree to sell to the Buyer and the Buyer
may agree to purchase from the Seller additional Eligible Accounts pursuant to
this Agreement and such additional Eligible Accounts shall be Additional
Accounts and be included as Accounts from and after the related Addition Date.
Furthermore, in consideration of the Purchase Price and upon the terms and
subject to the conditions set forth herein, the Seller shall hereby sell,
assign, transfer, set-over, and otherwise convey to the Buyer, and the Buyer
shall hereby purchase from the Seller, all of the Seller's right, title, and
interest in, to, and under all receivables and other Conveyed Property related
to such Additional Accounts as of the applicable Addition Date.
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.1 Purchase Price. The purchase price for the
Conveyed Property (the "Purchase Price") sold as of any date shall be a dollar
amount equal to the sum of (a) the purchase price paid by the Seller for such
Accounts pursuant to the applicable Asset Purchase Agreement and (b) Closing
Fees and Expenses with respect to the Accounts to be purchased on such date.
Section 3.2 Payment of Purchase Price. The Purchase Price with
respect to the Accounts being purchased on the Closing Date or each Addition
Date thereafter for Accounts purchased on such date shall be paid by payment in
immediately available funds. Notwithstanding the foregoing, to the extent that
the total Purchase Price for Accounts is not paid in full by the Buyer in cash
on the Closing Date or any Addition Date with respect to Accounts purchased
hereunder on such date, the Seller shall be deemed to have contributed capital
to the Buyer in an aggregate amount equal to such shortfall.
Section 3.3 Purchase Reports. On each Addition Date, the
Seller shall deliver to the Buyer a report showing, for such Addition Date, the
aggregate Purchase
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Price of Accounts purchased, the aggregate amount, if any, owing to the Buyer
pursuant to Section 6.1 and the aggregate net amount of cash owing for the
purchased Accounts.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Seller's Representations and Warranties. The
Seller represents and warrants as of the Closing Date, and shall be deemed to
represent and warrant as of each Addition Date thereafter, that:
(a) Organization and Good Standing. The Seller is a
corporation duly organized and validly existing in good standing under
the laws of the State of Delaware and has the corporate power and
authority and legal right to own its property and conduct its business
as such properties are presently owned and as such business is
presently conducted and to execute, deliver, and perform its
obligations under this Agreement and each other document or instrument
to be delivered by the Seller hereunder.
(b) Due Qualification. The Seller is duly qualified to do
business and is in good standing (or is exempt from such requirements),
as a foreign corporation in any state required in order to conduct
business except where the failure to be so qualified would not result
in a Material Adverse Effect. The Seller holds all of the permits,
licenses, certificates, consents and other authorizations of applicable
governmental authorities required by law to own and service the
Accounts, the absence of which would have a Material Adverse Effect.
(c) Due Authorization. The execution and delivery of this
Agreement, and the consummation of the transactions provided for
herein, have been duly authorized by the Seller by all necessary
corporate action on its part.
(d) Binding Obligation. This Agreement, and the consummation
of the transactions provided for herein, constitutes a legal, valid,
and binding obligation of the Seller, enforceable in accordance with
its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or other similar
laws now or hereinafter in effect, affecting the enforcement of
creditors' rights in general and general principles of equity.
(e) No Conflicts. The execution and delivery of this
Agreement, and the performance of the transactions contemplated hereby,
do not (i) contravene the Seller's certificate of incorporation or
by-laws, (ii) violate
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any material provision of law applicable to it or require any filing
(except for the filings under the Code), registration, consent, or
approval under, any law, rule, regulation, order, writ, judgment,
injunction, decree, determination, or award presently in effect having
applicability to the Seller, except for such filings, registrations,
consents, or approvals as have already been obtained and are in full
force and effect, or (iii) violate or result in any breach of any of
the material terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, any material
indenture, contract, agreement, mortgage, deed of trust, or other
material instrument to which the Seller is a party or by which it or
its properties are bound.
(f) Taxes. The Seller has filed all material tax returns
required to be filed and has paid or made adequate provision for the
payment of all material taxes, assessments, and other governmental
charges due from the Seller or is contesting any such tax, assessment,
or other governmental charge in good faith through appropriate
proceedings and has set up appropriate reserves.
(g) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Seller, threatened against the
Seller, before any governmental authority (i) asserting the invalidity
of this Agreement, (ii) seeking to prevent the consummation of any of
the transactions contemplated hereby, (iii) seeking any determination
or ruling that would materially and adversely affect the performance by
the Seller of its obligations hereunder, or (iv) seeking any
determination or ruling that would materially and adversely affect the
validity or enforceability hereof.
(h) All Consents Required. All approvals, authorizations,
consents, orders, or other actions of any governmental authority
required in connection with the execution and delivery of this
Agreement, the performance of the transactions contemplated hereby, and
the fulfillment of the terms hereof have been obtained.
(i) Executive Offices, Collateral Locations, FEIN. The current
location of the Seller's chief executive office is 3401 North Louise
Avenue, Sioux Falls, South Dakota 57107 and the place where records
with respect to the Conveyed Property is located is 3401 North Louise
Avenue, Sioux Falls, South Dakota 57107. Neither of such locations has
changed within the twelve (12) months preceding the Closing Date. The
Seller's federal employer identification number is 87-0296990.
(j) Tradenames, Etc. The Seller has, within the last five (5)
years, operated only under its current legal name except as described
below and its trade name "The Credit Store." The Seller has not, within
the last five (5) years, changed its name, identity or corporate
structure, merged with or into or
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consolidated with any other corporation, or been the subject of any
proceeding under the Bankruptcy Code except the following:
October 11, 1996 Valley West Development Corporation
changed its name to Credit Store, Inc.
February 17, 1998 Service One Holdings, Inc. (a Delaware
corporation) merged into Credit Store,
Inc.
February 17, 1998 Credit Store Mortgage, Inc. (a Delaware
corporation) merged into Credit Store,
Inc.
March 2, 1998 Service One International Corporation
(a South Dakota corporation) merged
into Credit Store, Inc. and name
changed to The Credit Store, Inc.
(k) Preference; Voidability. The Seller warrants that the
conveyance of the applicable Accounts and Conveyed Property to the
Buyer, and each such conveyance, shall not have been made for or on
account of an antecedent debt owed by the Seller to the Buyer and no
such transfer is or may be voidable under any Section of the Bankruptcy
Code.
(l) No Restriction on Transfer. To the best of Seller's
knowledge, no Account or related Account Document requires the prior
written consent of an Obligor or contains any other restriction
relating to the transfer or assignment of rights of payment under such
Account or Account Document (other than a consent or waiver of such
restriction that has been obtained prior to the related purchase date).
The representations and warranties set forth in this Section 4.1 shall survive
the sale of the Accounts to the Buyer. Upon discovery by the Seller or the Buyer
of a material breach of any of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice thereof to the
other.
Section 4.2 Seller's Representations and Warranties Regarding
the Accounts. The Seller (x) hereby represents and warrants as of the Closing
Date, with respect to the Accounts transferred to the Buyer as of such date, and
(y) shall be deemed to represent and warrant as of the applicable Addition Date
with respect to the Additional Accounts being sold on such date, that:
(a) The transfer of Accounts by the Seller to the Buyer under
this Agreement constitutes a valid sale, transfer, assignment,
set-over, and conveyance to the Buyer of all right, title, and interest
of the Seller in and to the Accounts, whether then existing or
thereafter created and arising in connection with the Accounts, and the
Accounts will be owned by the Buyer
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free and clear of any Lien of any Person (other than the Buyer and the
Lender) claiming through or under the Seller or any of its Affiliates.
This Agreement constitutes a valid sale, transfer, assignment,
set-over, and conveyance to the Buyer of all right, title, and interest
of the Seller in and to the Conveyed Property purported to be sold
hereunder, whether existing on the Closing Date or thereafter created,
and the Proceeds thereof.
(b) Immediately preceding the sale of the Accounts and related
property pursuant to this Agreement, the Seller is (or, with respect to
Additional Accounts, will be on the related Addition Date) the legal
and beneficial owner of all right, title, and interest in and to each
Account and each Account has been or will be transferred to the Buyer
free and clear of any Lien.
(c) Each Account is an Eligible Account as of the related
Addition Date.
The representations and warranties set forth in this Section 4.2 shall survive
the sale, transfer, and assignment of the Accounts to the Buyer. Upon discovery
by the Seller or the Buyer of a breach of any of the representations and
warranties set forth in this Section 4.2, the party discovering such breach
shall give prompt written notice thereof to the other. The Seller agrees to
cooperate with the Buyer in attempting to cure any such breach.
Section 4.3 Representations and Warranties of the Buyer. The
Buyer hereby represents and warrants as of the Closing Date, and shall be deemed
to represent and warrant as of each Addition Date thereafter, that:
(a) Organization and Good Standing. The Buyer is a corporation
duly organized and validly existing in good standing under the laws of
the State of Delaware and has the requisite power and authority and
legal right to own its property and conduct its business as such
properties are presently owned and such business is presently conducted
and to execute, deliver, and perform its obligations under this
Agreement.
(b) Due Qualification. The Buyer is duly qualified to do
business and is in good standing (or is exempt from such requirements)
as a foreign corporation in any state required in order to conduct
business. The Buyer holds all of the permits, licenses, certificates,
consents and other authorizations of applicable governmental
authorities required by law to own the Accounts, the absence of which
would have a Material Adverse Effect.
(c) Due Authorization. The execution and delivery of this
Agreement and the consummation of the transactions provided for herein
have been duly authorized by the Buyer by all necessary corporate
action on its part.
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(d) No Conflicts. The execution and delivery of this Agreement
and the performance of the transactions contemplated hereby do not (i)
contravene the Buyer's certificate of incorporation or by-laws, (ii)
violate any material provision of law applicable to it, or require any
filing (except for the filings under the Code), registration, consent,
or approval under, any law, rule, regulation, order, writ, judgment,
injunction, decree, determination, or award presently in effect having
applicability to the Buyer, except for such filings, registrations,
consents, or approvals as have already been obtained and are in full
force and effect, or (iii) violate or result in any breach of any of
the material terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, any material
indenture, contract, agreement, mortgage, deed of trust, or other
material instrument to which the Buyer is a party or by which it or its
properties are bound.
(e) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Buyer, threatened against the
Buyer, before any governmental authority (i) asserting the invalidity
of this Agreement, (ii) seeking to prevent the consummation of any of
the transactions contemplated hereby, (iii) seeking any determination
or ruling that would materially and adversely affect the performance by
the Buyer of its obligations hereunder, or (iv) seeking any
determination or ruling that would materially and adversely affect the
validity or enforceability hereof.
(f) All Consents Required. All approvals, authorizations,
consents, orders, or other actions of any governmental authority
required in connection with the execution and delivery of this
Agreement, the performance of the transactions contemplated hereby, and
the fulfillment of the terms hereof have been obtained.
The representations and warranties set forth in this Section 4.3 shall survive
the sale of the Accounts to the Buyer. Upon discovery by the Buyer or the Seller
of a breach of any of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice to the other.
ARTICLE V
COVENANTS
Section 5.1 Seller Covenants. The Seller hereby covenants
that:
(a) Security Interests. Except for the conveyances hereunder,
the Seller will not sell, pledge, assign, or transfer to any other
Person or grant, create, incur, assume, or suffer to exist, any Lien on
any Account, whether now existing or hereafter created, or any interest
therein. The Seller will immediately notify the Buyer of the existence
of any Lien on any Account and
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will defend the right, title, and interest of the Buyer in, to, and
under the Accounts, whether now existing or hereafter created, against
all claims of third parties claiming through or under the Seller.
(b) Delivery of Collections. In the event that the Seller
receives collections with respect to any Accounts, the Seller agrees to
forward such collections to, or at the direction of, the Buyer as soon
as practicable after the receipt thereof, but in no event later than
the second Business Day following the date of receipt thereof.
(c) Conduct of Business. The Seller will do all things
necessary to remain duly incorporated, validly existing, and in good
standing as a domestic corporation in its jurisdiction of incorporation
and will maintain all requisite authority to conduct its business in
each jurisdiction in which its business is conducted.
(d) Compliance with Laws. The Seller shall comply in all
material respects with all federal, state and local laws, rules,
regulations, orders, writs, judgments, injunctions, decrees, or awards
to which it may be subject, including Credit Collection Laws, except
where such failure to comply would not be reasonably like to have a
Material Adverse Effect.
(e) Furnishing of Information and Inspection of Records. The
Seller will provide the Buyer and the Lender with sufficient
information to allow the Buyer and the Lender to make an informed
decision with respect to a portfolio of Unconverted Accounts. Such
information shall include but not be limited to, information provided
to the Seller by the sellers of such Unconverted Accounts, internally
generated stratifications and analyses of the Unconverted Accounts,
portfolio write-ups prepared by the Seller, key assumptions used in
projecting future cash flows of the Unconverted Accounts, historical
numbers on the Unconverted Accounts, and the proposed Asset Purchase
Agreements. For all Unconverted Accounts purchased by the Seller
pursuant to a Forward Flow Agreement, the Seller shall submit to the
Buyer and the Lender a stratification report (by dollars and number of
Unconverted Accounts with percentages for each) containing detailed
information for each portfolio of Unconverted Accounts within ten (10)
Business Days after the relevant Addition Date. Upon reasonable notice,
the Seller shall permit the Buyer or the Lender, at the expense of the
Buyer or the Lender, as applicable, to visit and inspect any of the
properties, books and financial reports of the Seller with respect to
the Accounts all at such reasonable times during ordinary business
hours of the Seller and as often as the Buyer or the Lender may
reasonably request for the purpose of determining compliance with this
Agreement; provided, however, that the Buyer and the Lender will use
reasonable efforts to conduct (or have conducted) any such examination
or inspection so as to minimize disruptions to the operations of the
Seller.
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(f) Keeping of Records and Books of Account. The Seller will
maintain a system of accounting established and administered in
accordance with GAAP, consistently applied, and will maintain and
implement administrative and operating procedures and keep and maintain
all documents, books, records, and other information, reasonably
necessary or advisable for the collection of all Accounts (including,
without limitation, records adequate to permit the identification of
each new Account and all collections of and adjustments to each
existing Account). The Seller will give the Buyer and the Lender notice
of any material change in the administrative and operating procedures
of the Seller referred to in the previous sentence.
Section 5.2 Buyer Covenant Regarding Sale Treatment. The Buyer
agrees to treat this conveyance for all purposes (other than for tax purposes)
as a sale of the Conveyed Property by the Seller to the Buyer.
ARTICLE VI
REPURCHASE OBLIGATION
Section 6.1 Mandatory Repurchase.
(a) Breach of Warranty. In the event of a breach with respect
to a Account of any of the representations and warranties set forth in
Section 4.2 or such Account was not an Eligible Account, such Account
shall be designated an "Ineligible Account" and the Seller shall pay to
the Buyer an amount in cash equal to the Purchase Price paid for any
such Ineligible Account by the Buyer to the Seller plus any costs and
expenses of the Buyer associated therewith less any amounts collected
by the Buyer on such Account, but in no event less than zero. Such
payment must be made by the close of business within five Business Days
following the day such Account has been designated an Ineligible
Account; provided, however, that such amount may be offset against any
amounts due from the Buyer to the Seller with respect to the Purchase
Price for Accounts sold to the Buyer on such day. The obligation of the
Seller set forth in this Section 6.1 shall constitute the sole remedy
available to the Buyer for any breach of the representations and
warranties set forth in the above-referenced Sections with respect to
any Account.
(b) Reassignment of the Sold Assets. In the event of a breach
of any of the representations and warranties set forth in Sections
4.1(a), (c) and (d), the Buyer by notice given in writing to the Seller
may direct the Seller to accept reassignment of the Accounts at the
amount specified below within 60 days of such notice (or within such
longer period as may be specified in such notice), and the Seller shall
be obligated to accept reassignment of the Accounts within such
applicable period on the terms and conditions set forth below;
provided, however, that no such reassignment shall be required to be
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made if, at any time during such applicable period, the Seller
demonstrates to the Buyer that the representations and warranties
contained in Sections 4.1(a), (c), and (d) shall then be true and
correct in all material respects as if made on such day. The Seller
shall pay to the Buyer on the day of such reassignment an amount equal
to the aggregate Purchase Price paid for all the Conveyed Property plus
any costs and expenses incurred by the Buyer in connection with the
reassignment less any amounts collected by the Buyer on the Accounts,
but in no event less than zero. On the day on which such amount has
been paid, each Account shall be sold and reassigned to the Seller, and
the Buyer shall execute and deliver such instruments of sale and
assignment, in each case without recourse, representation, or warranty,
as shall be reasonably requested by the Seller to vest in the Seller,
or its designee or assignee, all right, title, and interest of the
Buyer in and to each Account. The obligation of the Seller to purchase
each Account pursuant to this Section 6.1 shall constitute the sole
remedy available to the Buyer for a breach of the representations and
warranties contained in Section 4.1 (a), (c) and (d).
Section 6.2 Conveyance of Reassigned Accounts. Upon the
request of the Seller, the Buyer shall execute and deliver to the Seller a
reconveyance substantially in such form and upon such terms as shall be
acceptable to the Seller, pursuant to which the Buyer evidences the conveyance
to the Seller of all of the Buyer's right, title, and interest in any Accounts
reconveyed to the Seller pursuant to Section 6.1(b). The Buyer shall (and shall
cause the Lender to) execute such other documents or instruments of conveyance
or take such other actions as the Seller may reasonably require to effect any
repurchase of Accounts pursuant to Section 6.1.
Section 6.3 Sales are Non-Recourse. Other than the obligations
to repurchase Accounts under the limited circumstances set forth in Section 6.1,
the sales of Accounts under this Agreement shall be without recourse to the
Seller.
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.1 Conditions to the Buyer's Obligations Regarding
Accounts. The obligations of the Buyer to purchase the Accounts on the Closing
Date or any Addition Date shall be subject to the satisfaction of the following
conditions:
(a) All representations and warranties of the Seller contained
in this Agreement shall be true and correct on the Closing Date and on
the respective Addition Date with the same effect as though such
representations and warranties had been made on such date,
(b) All information concerning the Accounts provided to the
Buyer shall be true and correct in all material respects as of the
Closing Date, in the
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case of Accounts sold to the Buyer on the Closing Date, or the
applicable Addition Date, in the case of Accounts sold to the Buyer
after the Closing Date,
(c) At the Closing Date, the Seller shall have substantially
performed all other obligations required to be performed by the
provisions of this Agreement,
(d) The Seller shall have filed the financing statement(s)
required to be filed pursuant to Section 2.1(b), and
(e) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall
be satisfactory in form and substance to the Buyer, and the Buyer shall
have received from the Seller copies of all documents (including,
without limitation, records of corporate proceedings) relevant to the
transactions herein contemplated as the Buyer may reasonably have
requested.
Section 7.2 Conditions Precedent to the Seller's Obligations.
The obligations of the Seller to sell Accounts on any Business Day shall be
subject to the satisfaction of the following conditions:
(a) All representations and warranties of the Buyer contained
in this Agreement shall be true and correct with the same effect as
though such representations and warranties had been made on such date,
(b) Payment or provision for payment of the Purchase Price in
accordance with the provisions of Section 3.2 shall have been made, and
(c) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall
be satisfactory in form and substance to the Seller, and the Seller
shall have received from the Buyer copies of all documents (including,
without limitation, records of corporate proceedings) relevant to the
transactions herein contemplated as the Seller may reasonably have
requested.
ARTICLE VIII
TERM AND TERMINATION
Section 8.1 Termination. This Agreement shall terminate upon
payment in full by the Buyer of all Loans and other obligations under the Loan
Agreement and the termination of the Loan Agreement.
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ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1 Amendment. This Agreement and the rights and
obligations of the parties hereunder may not be changed orally, but only by an
instrument in writing signed by the Buyer and the Seller. The Seller shall
provide prompt written notice of any such amendment to the Lender.
Section 9.2 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF MINNESOTA, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 9.3 Notices. All demands, notices, and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by registered mail, return receipt requested,
to:
(a) in the case of the Buyer, to:
Credit Store Services, Inc.
3401 North Louise Avenue, Suite 106
Sioux Falls, South Dakota 57105
Attention: Corporate Counsel
Telephone: (605) 339-7571
Telecopy: (605) 338-3486
with a copy to:
The Varde Fund IV-A, L.P.
c/o Varde Partners, L.P.
3600 West 80th Street, Suite 425
Minneapolis, MN 55435
Attention: Rick J. Noel
Telephone No.: (952) 893-1554
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Facsimile No.: (952) 893-9613
(b) in the case of the Seller, to:
The Credit Store, Inc.
3401 N. Louise Avenue
Sioux Falls, South Dakota 57105
Attention: Chief Financial Officer
Telephone: (605) 339-7577
Telecopy: (605) 338-3486
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party.
Section 9.4 Severability of Provisions. If any one or more of
the covenants, agreements, provisions, or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions,
or terms shall be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement.
Section 9.5 Assignment. This Agreement may not be assigned by
the Buyer or the Seller without the written consent of the other party and the
Lender; provided, however, that the Buyer's rights hereunder may be collaterally
assigned to the Lender.
Section 9.6 Further Assurances. The Buyer and the Seller 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
more fully effect the purposes of this Agreement, including, without limitation,
the execution of any financing statements or continuation statements or
equivalent documents relating to the Accounts for filing under the provisions of
the Code or other laws of any applicable jurisdiction.
Section 9.7 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Buyer or the Seller, any
right, remedy, power, or privilege hereunder, shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power, or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power, or privilege. The rights, remedies,
powers, and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers, and privileges provided by law.
Section 9.8 Counterparts. This Agreement may be executed in
two or more counterparts including telecopy transmission thereof (and by
different parties on
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separate counterparts), each of which shall be an original, but all of which
together shall constitute one and the same instrument.
Section 9.9 Binding Effect. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns.
Section 9.10 Merger and Integration. Except as specifically
stated otherwise herein, this Agreement sets forth the entire understanding of
the parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement.
Section 9.11 Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
Section 9.12 [Reserved].
Section 9.13 Merger or Consolidation of, or Assumption of the
Obligations of, the Seller. The Seller shall not consolidate with or merge into
any other corporation or entity or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(a) the corporation or entity formed by such consolidation or
into which the Seller is merged or the Person which acquires by
conveyance or transfer the properties and assets of the Seller
substantially as an entirety shall be a corporation or entity organized
and existing under the laws of the United States of America or any
state or the District of Columbia and, if the Seller is not the
surviving entity, shall expressly assume, by an agreement supplemental
hereto, executed and delivered to the Buyer in form satisfactory to the
Buyer and the Lender, the performance of every covenant and obligation
of the Seller hereunder (to the extent that any right, covenant, or
obligation of the Seller, as applicable hereunder, is inapplicable to
the successor entity, such successor entity shall be subject to such
covenant or obligation, or benefit from such right, as would apply, to
the extent practicable, to such successor entity); and
(b) the Seller shall have delivered to the Buyer (i) an
officer's certificate that such consolidation, merger, conveyance, or
transfer and such supplemental agreement comply with this Section 9.13
and that all conditions precedent herein provided for relating to such
transaction have been complied with and (ii) the Lender shall have
received an opinion of legal counsel reasonably acceptable to it that
this Agreement is a legal, valid, and binding obligation of such
successor corporation or entity, enforceable against such successor
corporation or entity in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent
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conveyance, fraudulent transfer and other similar laws affecting
creditors' rights generally, and to the application of general
principles of equity.
Section 9.14 Protection of Right, Title and Interest to
Accounts.
(a) The Seller shall cause this Agreement, all amendments
hereto, all financing statements and continuation statements, and any
other necessary documents covering the Seller's and the Buyer's right,
title, and interest to the Conveyed Property to be promptly recorded,
registered, and filed, and at all times to be kept recorded,
registered, and filed, all in such manner and in such places as may be
required by law to fully preserve and protect the right, title, and
interest of the Buyer hereunder to the Conveyed Property and the
proceeds thereof. The Seller shall deliver to the Buyer file-stamped
copies of, or filing receipts for, any document recorded, registered,
or filed as provided above, as soon as available following such
recording, registration, or filing. The Buyer shall cooperate fully
with the Seller in connection with the obligations set forth above and
will execute any and all documents reasonably required to fulfill the
intent of this Section 9.14(a).
(b) Within 30 days after the Seller makes any change in its
name, identity, or corporate structure which would make any financing
statement or continuation statement filed in accordance with Section
9.14(a) materially misleading within the meaning of Section 9-402(7) of
the Code as in effect in the Relevant UCC State, the Seller shall give
the Buyer written notice of any such change and shall file such
financing statements or amendments as may be necessary to continue the
perfection of the Buyer's security interest in the Conveyed Property
and the proceeds thereof.
(c) The Seller will give the Buyer prompt written notice of
any relocation of any office from which it services Accounts or keeps
records concerning the Accounts or of its principal executive office
and whether, as a result of such relocation, the applicable provisions
of the Code would require the filing of any amendment of any previously
filed financing or continuation statement or of any new financing
statement and shall file such financing statements or amendments as may
be necessary to continue the perfection of the Buyer's security
interest in the Conveyed Property and the proceeds thereof. The Seller
will at all times maintain each office from which it services Accounts
and its principal executive office within the United States of America.
Section 9.15 No Bankruptcy Petition Against the Buyer. The
Seller hereby covenants and agrees that, prior to the date which is one year and
one day after the payment in full of all Loans and other obligations due under
the Loan Agreement and the termination of the Loan Agreement it will not
institute against or join any other Person in instituting against the Buyer any
bankruptcy, reorganization,
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arrangement, insolvency or liquidation proceedings, or other similar proceeding
under the laws of the United States or any state of the United States.
(Signature Page to Follow)
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IN WITNESS WHEREOF, the Buyer and the Seller each have caused
this Agreement to be duly executed by their respective officers as of the day
and year first above written.
CREDIT STORE SERVICES, INC., as Buyer
By:
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Its
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THE CREDIT STORE, INC., as Seller
By:
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Its
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(Signature Page 1 of 1 to the Account Purchase Agreement)
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