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FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
This FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this
"Agreement") dated as of September 30, 1998 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 (the "Loan Agreement") dated as of April 30, 1998. To secure the
payment of the Borrower's obligations under such agreement, the Borrower has
granted Coast a security interest in and lien upon substantially all of its
assets, including, without limitation, the Borrower's right, title, and interest
in Receivables (including the Funding I Receivables, as defined below) and
collections related thereto.
The Borrower and TCS Funding I, 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 I Receivables").
To finance the purchase of the Funding I 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 I
Receivables.
As a condition precedent to disbursing the term loan under the
Credit Agreement, the Lender requires the due execution and delivery of this
Agreement by the parties hereto. Therefore, the parties hereto wish to amend the
Loan Agreement to release Coast's right, title, and/or interest in, to, or under
the Funding I 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 I Receivables" means the "Conveyed Property" as
defined in the Receivables Purchase Agreement.
"Future Funding I Receivables" means all of the Funding I
Receivables to be transferred by the Borrower to TCS Funding I after
October 1, 1998 and arising from time to time in connection with the
credit card accounts listed on one or more schedules delivered to Coast
pursuant to Section 4.3 below.
"Initial Funding I Receivables" means any of the Funding I
Receivables, whether now existing or hereafter arising, to be
transferred by the Borrower to TCS Funding I and associated with the
credit card accounts listed on Annex F hereto.
"Lender" means Miller & Schroeder Investments Corporation, a
Minnesota corporation.
"TCS Funding I" means TCS Funding I, Inc., a Delaware
corporation.
"Receivables Purchase Agreement" means the Receivables
Purchase Agreement dated as of September 30, 1998 by and between the
Borrower, as seller, and TCS Funding I, as purchaser.
(b) The definitions of "General Intangibles" and "Receivables" stated
in Section 1 of the Loan Agreement are hereby amended by adding the phrase ";
excluding, however, the Initial Funding I Receivables and (subject to the terms
of Section 4.3 below) any Future Funding I Receivables" at the end of such
definitions.
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2.2 Amendment to Section 4 of the Loan Agreement.
(a) Section 4 of the Loan Agreement is hereby amended by adding the
phrase "4.1 SECURITY INTEREST." before the words "To secure the payment and
performance" in the first sentence of such section.
(b) Section 4 of the Loan Agreement is hereby further amended by adding
the phrase "; excluding, however, the Initial Funding I Receivables and (subject
to the terms of Section 4.3 below) any Future Funding I Receivables," after the
word "interest" in the final parenthetical clause of such section.
(c) Section 4 of the Loan Agreement is hereby further amended by adding
the following new sections to the end of such section:
4.2 RELEASE OF INITIAL FUNDING I RECEIVABLES. Coast
hereby (i) releases any and all right, title, and interest
Coast may have or hereafter acquire in the Initial Funding I
Receivables and (ii) consents to any sale, assignment,
transfer, or conveyance of, or granting of a security interest
in, the Initial Funding I Receivables by the Borrower to TCS
Funding I pursuant to the terms of the Receivables Purchase
Agreement. On or before the date of transfer of the Initial
Funding I Receivables, Coast agrees to promptly take all
further action, and to promptly execute and deliver any UCC
releases, confirmatory letters, and/or any other document,
reasonably required by the Borrower (at the Borrower's
expense) to effect, evidence, complete, and/or confirm Coast's
release of the Initial Funding I Receivables.
4.3 RELEASE OF FUTURE FUNDING I RECEIVABLES. Coast
hereby further (i) agrees to release from time to time, any
and all right, title, and interest Coast may have or hereafter
acquire in the Future Funding I Receivables and (ii) consents
to any sale, assignment, transfer, or conveyance of, or
granting of a security interest in, the Future Funding I
Receivables, from time to time, by the Borrower to TCS Funding
I pursuant to the terms of the Receivables Purchase Agreement,
subject to each of the following conditions: (a) no Default or
Event of Default shall have occurred and be continuing at the
time of, and after giving effect to, such release and (b) the
Borrower shall have delivered to Coast a schedule identifying
the credit card accounts with which such Future Funding I
Receivables are associated and a certificate to the effect
that after giving effect to the release of such Future Funding
I Receivables, the outstanding Loans will not exceed the
Credit Limit. On or before the date of transfer of any Future
Funding I Receivables, Coast agrees to promptly take all
further action, and to promptly execute any UCC releases
(including, without limitation, UCC releases in the form of
Annex A hereto), confirmatory letters, and/or any other
document, reasonably required by the Borrower (at the
Borrower's expense) to effect, evidence, complete, and/or
confirm Coast's release of such Future Funding I 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 adding the phrase "and loans or
capital contributions to TCS Funding I in connection with the Receivables
Purchase Agreement" after the phrase "Borrower's subsidiary Sleepy Hollow
Associates, Inc." in such section.
2.4 Addition of Annex A to the Loan Agreement. The Loan Agreement is
hereby Amended by adding Annex A hereto as Annex A to the Loan Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties. Each of the parties hereto
represents and warrants to the other party that (a) it is duly organized and
existing in good standing under the laws of its jurisdiction of organization and
has full power and authority to make and deliver this Agreement, (b) the
execution, delivery, and performance of this Agreement 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 Agreement 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 Agreement 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. As amended hereby, the Loan Agreement is hereby
ratified, approved, and confirmed in every respect, and shall remain in full
force and effect.
4.2 Further Assurances. The parties hereto agree to do and perform,
from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by the other party to this
Agreement to more fully effect the purposes of this Agreement 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 I
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 Agreement 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
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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 Agreement and any and all other documents furnished
in connection with the execution and delivery of this Agreement, including
reasonable attorneys' fees and expenses.
4.5 Governing Law. This Agreement 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
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
THE CREDIT STORE, INC.
By
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Its
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COAST BUSINESS CREDIT,
a division of Southern Pacific Bank
By /s/ Illegible
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Its Vice President
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(Signature Page 1 of 1 to the First Amendment to Loan Agreement)