EXHIBIT 10.18.3
EIGHTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
This EIGHTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment")
dated as of October 31, 2000 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 Third Amendment to Loan and
Security Agreement dated as of April 27, 1999, the Fifth Amendment to Loan and
Security Agreement dated as of June 25, 1999, the Sixth Amendment to Loan and
Security Agreement dated as of December 6, 1999 and the Seventh Amendment to
Loan and Security Agreement dated as of May 31, 2000 (as heretofore amended, the
"Loan Agreement" and as amended by this 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 of its assets, including, without limitation, the Borrower's
right, title, and interest in Receivables (including the CSSI Receivables, as
defined below) and collections related thereto.
The Borrower and Credit Store Services, Inc., a Delaware corporation
(the "Buyer"), have entered into an Account Purchase Agreement (the "Account
Purchase Agreement") of even date herewith and have entered into a Converted
Accounts/Receivables Sale Agreement of even date herewith (the "Converted
Accounts Agreement") 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 acquire or purchase from the Borrower, all of the Borrower's
right, title, and interest in, to, and under the Conveyed Property, as defined
in each of the Account Purchase Agreement and the Converted Accounts Agreement
(such Conveyed Property referred to herein as the "CSSI Receivables").
To finance the purchase of the CSSI Receivables under the Account
Purchase Agreement, the Buyer, the Borrower, as servicer, and The Varde Fund
IV-A, L.P., a Delaware limited partnership (the "Lender"), have entered into a
Master Loan and Servicing Agreement (the "Loan Agreement") of even date
herewith pursuant to which the Lender may extend one or more term loans to the
Buyer, which loans are to be secured by, among other things, a first priority
security interest in and lien upon the CSSI Receivables granted pursuant to a
Security Agreement of even date herewith made by the Buyer in favor of the
Lender.
As a condition precedent to disbursing the term loans under the Loan
Agreement, the Lender requires the due execution and delivery of this 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 CSSI
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:
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:
"CSSI Receivables" means (i) any of the CSSI Receivables,
whether now existing or hereafter arising, to be transferred by the
Borrower to TCS Funding IV and associated with the unconverted
charged off accounts receivable identified in the Borrower's
records as Pool Identification Number 2000100 and (ii) any
Converted Receivables (as defined in the CSSI Account Purchase
Agreement) resulting from the conversion and balance transfer of
any of the unconverted accounts listed in clause (i) above to a
credit card account and any New Receivables (as defined in the CSSI
Account Purchase Agreement) arising in connection with any such
credit card account after the date of conversion and also
identified in the Borrower's records as Pool Identification Number
2000100.
"CSSI" means Credit Store Services, Inc., a Delaware
corporation.
"CSSI Receivables" means the "Conveyed Property", as defined in
the CSSI Account Purchase Agreement.
"CSSI Account Purchase Agreement" means, collectively, the
Account Purchase Agreement dated as of October 31, 2000 by and
between the Borrower, as seller, and CSSI, as purchaser and the
Converted Accounts/Receivables Sale
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Agreement dated as of October 31, 2000 by and between the Borrower
and CSSI as such agreements may be amended from time to time.
(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 litigation 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 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, (i) the Initial Funding IV
Receivables and (subject to the terms of Section 4.5 below) any
Future Funding IV Receivables and (ii) the CSSI Receivables."
"Receivables" means all of 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, (i) the Initial Funding IV Receivables
and (subject to the terms of Section 4.5 below) any Future Funding
IV Receivables and (ii) the CSSI 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, (i) the
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Initial Funding IV Receivables and (subject to the terms of Section 4.5 below)
any Future Funding IV Receivables and (ii) the CSSI Receivables is referred to
herein, collectively, as the 'Collateral')."
(b) The Loan Agreement is hereby further amended by adding the
following new section after Section 4.5 thereof:
4.6 Release of CSSI Receivables. Coast hereby (i) releases any
and all right, title, and interest Coast may have or hereafter
acquire in the CSSI Receivables and (ii) consents to any sale,
assignment, transfer, or conveyance of, or granting of a security
interest in, the CSSI Receivables by the Borrower to CSSI pursuant
to the terms of the CSSI Account Purchase Agreement. On or before
the initial date of transfer of any CSSI 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 CSSI Receivables.
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 to Credit Store
Capital Corp., (ii) loans or capital contributions to TCS Funding IV
in connection with the Funding IV Receivables Purchase Agreement and
(iii) loans or capital contributions to CSSI in connection with the
CSSI Account 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 E to the Loan Agreement. The Loan Agreement is
hereby Amended by adding Annex E 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 Amendment, (b) the
execution, delivery, and performance of this 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
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documents or any agreement presently binding on it, (c) this 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 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.
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 Amendment to more
fully effect the purposes of this 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 CSSI 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 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 Fifth Amendment and any and all other documents
furnished in connection with the execution and delivery of this Amendment,
including reasonable attorneys' fees and expenses.
4.5 Governing Law. This 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 Amendment 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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COAST BUSINESS CREDIT,
a division of Southern Pacific Bank
By: /s/ [ILLEGIBLE]
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(Signature Page 1 of 1 to the Eighth Amendment to Coast Loan Agreement)
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
THE CREDIT STORE, INC.
By: /s/ Michael Philippe
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Michael Philippe, CFO
COAST BUSINESS CREDIT, a division of Southern
Pacific Bank
By:
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(Signature Page 1 of 1 to the Eighth Amendment to Coast Loan Agreement)