EXHIBIT 10.43.3
EXECUTION COPY
RECEIVABLES PURCHASE AGREEMENT
RECEIVABLES PURCHASE AGREEMENT, dated as of May 1, 2001 (this
"Agreement"), by and between THE CREDIT STORE, INC., a Delaware corporation
("TCSI" or the "Seller"), and TCS FUNDING V, INC., a Delaware corporation (the
"Buyer").
WHEREAS, the Buyer, an Affiliate of the Seller, wishes to
purchase from time to time on or after the Closing Date certain consumer
revolving credit card receivables owned by the Seller in connection with certain
consumer revolving credit card accounts.
WHEREAS, the Seller desires to sell and assign from time to
time such receivables to the Buyer upon the terms and conditions hereinafter set
forth.
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(s)" means each credit card account established
between an Issuing Bank and another Person that is listed by account
number in the Account Schedule and which credit card accounts have been
marked on the records of the Seller with a permanent pool ID of
2001-004. An "Account" includes any "relationship account" resulting
from the earlier credit card account having been reported as stolen.
"Account Schedule" means the electronic or printed list of
Accounts the receivables of which are sold to the Buyer pursuant to
this Agreement, such list to be delivered to the Buyer on the Closing
Date, as such list may be amended or supplemented from time to time
pursuant to the terms of this Agreement.
"Conveyed Property" has the meaning set forth in Section
2.1(a).
"Credit Agreement" means the Credit and Security Agreement of
even date herewith by and between the Buyer, as borrower, the Seller,
as servicer, and Miller & Schroeder Investments Corporation, a
Minnesota corporation, as lender.
"Date of Processing" means, with respect to any transaction
giving rise to a Receivable, the date on which such transaction is
settled according to the Servicer's computer records.
"Dilution" means a downward adjustment in the amount of any
Receivable because of a return, rebate, refund, unauthorized charge, or
billing error to an Obligor, because such Receivable was created in
respect of merchandise which was refused or returned by an Obligor, or
because such Receivable was discovered to have been created through a
fraudulent or counterfeit charge.
"Ineligible Receivable" has the meaning given such term in
Section 6.1(a).
"Official Body" means any government or political subdivision
or any agency, authority, bureau, central bank, commission, department,
or instrumentality of any such government or political subdivision or
any court, tribunal, grand jury, or arbitrator, in each case whether
foreign or domestic.
"Proceeds" means "proceeds" as defined in the UCC.
"Purchase Price" has the meaning set forth in Section 3.1.
"Relevant UCC State" means each jurisdiction in which the
filing of a UCC financing statement is necessary to perfect the
ownership interest and security interest of the Buyer established under
this Agreement.
"Requirements of Law" for any Person means the certificate of
incorporation or articles of association and by-laws or other
organizational or governing documents of such Person, and any material
law, treaty, rule or regulation, or determination of an arbitrator or
Official Body, in each case applicable to or binding upon such Person
or to which such Person is subject.
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 herein
are defined in the Credit Agreement. In the event that any term or provision
contained herein shall conflict with or be inconsistent with any provisions
contained in the Credit Agreement, the terms and provisions contained herein
shall govern with respect to this Agreement.
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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 Receivables now existing and hereafter created and
arising in connection with the Accounts including, without limitation,
all accounts, general intangibles, chattel paper, contract rights, and
other obligations of any Obligor with respect to the Receivables now or
hereafter existing, including, without limitation, any interest, or
other fees received by the Seller with respect to such Receivables,
(ii) all Collections in respect of, and other Proceeds of, such
Receivables, including, without limitation, net recoveries with respect
to any defaulted Receivables, (iii) all substitutions and replacements
for any of the foregoing, and (iv) all Proceeds of any of the foregoing
(all of the foregoing collectively, the "Conveyed Property"). The
foregoing sale, transfer, assignment, set-over, and conveyance does not
constitute and is not intended to result in a creation or an assumption
by the Buyer of any obligation of the Seller in connection with the
Conveyed Property or any agreement or instrument relating thereto,
including, without limitation, any obligation to any Obligors, Issuing
Banks, merchant banks, merchant clearance systems, VISA(R),
MasterCard(R), or insurers. Each Account shall be listed by account
number in the Account Schedule.
(b) Financing Statements. In connection with the foregoing
sale, the Seller agrees to record and file on or prior to the Closing
Date, at its own expense, a financing statement or statements with
respect to the Conveyed Property meeting the requirements of applicable
state law in such manner and in such jurisdictions as are necessary to
perfect and protect the interests of the Buyer created hereby under the
applicable UCC against all creditors of and purchasers from the Seller,
and to deliver a file-stamped copy of such financing statements or
other evidence of such filings to the Buyer within 10 days after the
Closing Date.
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(c) Bankruptcy of Seller. The Buyer shall not purchase
Receivables hereunder if the Seller shall become an involuntary party
to (or be made the subject of), by receipt at its head corporate office
of notice of, any bankruptcy proceeding or any other insolvency,
readjustment of debt, marshalling of assets and liabilities, or similar
proceedings of or relating to the Seller or relating to all or
substantially all of its property.
(d) Insolvency of Seller. The Buyer shall not purchase
Receivables hereunder if (i) the Seller shall admit in writing its
inability to pay its debts as they are due, (ii) the Seller shall
commence a voluntary case under the federal bankruptcy laws, as now or
hereafter in effect, or any present or future federal or state
bankruptcy, insolvency, or similar law, (iii) the Seller shall consent
to the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator, or other similar official
of the Seller or of any substantial part of its property, (iv) the
Seller shall make an assignment for the benefit of creditors, (v) the
Seller shall fail generally to pay its debts as such debts become due,
or (vi) the Seller shall take corporate action in furtherance of any of
the foregoing.
(e) Marking Records. In connection with the sale and
conveyance hereunder, the Seller agrees, at its own expense, on or
prior to the Closing Date, 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.
(f) 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 UCC, (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 amount of the Purchase Price 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
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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. 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.
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.1 Purchase Price. The purchase price for the
Conveyed Property (the "Purchase Price") shall be a dollar amount equal to, (a)
for that portion of the Conveyed Property sold on the Closing Date, 85% of the
aggregate amount of all Receivables sold as of such date, and (b) for all other
Conveyed Property sold after the Closing Date, 100% of the aggregate amount of
all Receivables sold as of such date, adjusted pursuant to Section 3.2(b).
Section 3.2 Payment of Purchase Price.
(a) The Purchase Price for Receivables shall be paid or
provided for (i) on the Closing Date with respect to the Receivables
purchased on the Closing Date and (ii) on each Business Day thereafter
for Receivables purchased since the immediately preceding Business Day
and for which the Seller has received reporting with respect to such
Receivables, in each case by payment in immediately available funds. To
the extent that the total Purchase Price for Receivables is not paid in
full by the Buyer in cash on the Closing Date or such Business Day, the
Seller shall be deemed to have contributed Receivables in an aggregate
principal amount equal to such shortfall to the Buyer.
(b) The Purchase Price shall be adjusted with respect to any
Receivable adjusted as a result of Dilution in an amount equal to the
amount of such Dilution. If such adjustment results in a negative
Purchase Price, the Seller shall pay such negative amount to the Buyer
in immediately available funds.
Section 3.3 Monthly Reports. On each Settlement Date, the
Seller shall deliver to the Buyer a monthly report (the "Monthly Report")
showing the aggregate Purchase Price of Receivables purchased, the aggregate
amount, if any, owing to the Buyer pursuant to Section 6.1 and the aggregate
capital contribution (if any) made for Receivables purchased during the
immediately preceding Monthly Period.
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Section 3.4 Capital Contributions. The Seller has initially
contributed cash in the amount of $5,000.00 in exchange for shares of the common
stock of the Buyer representing all of the outstanding capital stock of the
Buyer.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Seller's Representations and Warranties. The
Seller represents and warrants to the Buyer, 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. The Seller has complied in all material respects with all
licenses and approval requirements with respect to the Seller required
under applicable law except insofar as any failure to so comply would
not 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.
(e) No Conflicts. The execution and delivery of the this
Agreement, and the performance of the transactions contemplated hereby,
do not (i) contravene the Seller's certificate of incorporation or
by-laws or (ii) violate any material provision of law applicable to it
or require any filing (except for the filings under the UCC),
registration, consent, or approval under, any law, rule, regulation,
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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.
(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 Violation. The execution and delivery of this
Agreement, the performance of the transactions contemplated hereby, and
the fulfillment of the terms hereof will not violate any Requirements
of Law applicable to the Seller, will not 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
Requirement of Law applicable to the Seller, or 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.
(h) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Seller, threatened against the
Seller, before any Official Body (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.
(i) All Consents Required. All approvals, authorizations,
consents, orders, or other actions of any Official Body 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.
(j) Bona Fide Receivables. The Seller has no knowledge of any
fact which should have led it to expect at the time of the
classification of any Receivable as an Eligible Receivable that such
Receivable would not be paid in full when due, and each Receivable
classified as an Eligible Receivable by the Seller in any document or
report delivered under this Agreement satisfies the requirements of
eligibility contained in the definition of "Eligible Receivable" set
forth in the Credit Agreement. No selection criteria adverse to the
Buyer or the Lender have been applied to the Receivables purchased
hereunder.
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(k) Place of Business. The principal executive offices of the
Seller are in Sioux Falls, South Dakota and the offices where the
Seller keeps its records concerning the Receivables and related
Accounts are in Sioux Falls, South Dakota.
(l) Not an Investment Company. The Seller is not an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended, or is exempt from all provisions of such Act.
(m) Tradenames, Etc. As of the date hereof: (i) the Seller's
chief executive office is located at the address for notices set forth
in Section 9.3 and (ii) the Seller has, within the last five (5) years,
operated only under its current legal name except as described below
and, within the last five (5) years, has not changed its name, identity
or corporate structure, merged with or into or consolidated with any
other corporation, or been the subject of any proceeding under the
United States 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.
(n) ERISA. Each of the Seller and its ERISA Affiliates is in
compliance in all material respects with ERISA and no lien exists in
favor of the PBGC on any of the Receivables.
(o) Preference; Voidability. The Seller warrants that the
conveyance of the applicable Receivables and Collections 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 United States Bankruptcy
Code.
(p) No Restriction on Transfer. To the best of Seller's
knowledge, no Account or related Account Agreement 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 Agreement (other than a consent or waiver of such
restriction that has been obtained prior to the related purchase date).
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(q) Accuracy of Information. All information heretofore
furnished by the Seller to the Buyer for purposes of or in connection
with this Agreement or any transaction contemplated hereby is, and all
such information hereafter furnished by the Seller to the Buyer will
be, true and accurate in every material respect, on the date such
information is stated or certified.
The representations and warranties set forth in this Section 4.1 shall survive
the sale of the Receivables to the Buyer. The Seller hereby represents and
warrants to the Buyer, that the representations and warranties of the Seller set
forth in this Section 4.1 are true and correct as of the Closing Date. 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 Receivables.
(a) Valid Sale, Etc. The Seller (x) hereby represents and
warrants as of the Closing Date, with respect to the Receivables
transferred to the Buyer as of such date, and (y) shall be deemed to
represent and warrant as of the date of sale to the Buyer of any
Receivables after the Closing Date with respect to such Receivables,
that:
(i) This Agreement constitutes the legal, valid, and
binding obligation of the Seller, enforceable against the
Seller in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or other similar laws
now or hereafter in effect, affecting the enforcement of
creditors' rights in general.
(ii) The transfer of Receivables 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
Receivables, whether then existing or thereafter created and
arising in connection with the Accounts, and the Receivables
will be held by the Buyer free and clear of any Adverse Claim
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.
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(iii) The Seller is Solvent and will remain Solvent
upon sale of the Receivables to the Buyer.
(iv) Immediately preceding the sale of the
Receivables and related property pursuant to this Agreement,
the Seller is (or, with respect to Receivables sold after the
date hereof, will be on the date of sale) the legal and
beneficial owner of all right, title, and interest in and to
each Receivable and each Receivable has been or will be
transferred to the Buyer free and clear of any Adverse Claim.
(v) All consents, licenses, approvals, or
authorizations of or registrations or declarations with any
Official Body required in connection with the transfer of such
Receivables to the Buyer have been obtained.
(vi) Each Account listed on the Account Schedule is
an Eligible Account as of the Closing Date and each Receivable
classified as an Eligible Receivable by the Seller in any
document or report delivered hereunder will satisfy the
requirements contained in the definition of "Eligible
Receivable" as of the time of such document or report.
(b) Daily Representations and Warranties. On each day on which
any new Receivable is sold by the Seller to the Buyer, the Seller shall
be deemed to represent and warrant to the Buyer that all
representations and warranties contained in Section 4.1 and Section
4.2(a) are true and correct on and as of such date (in addition to the
Closing Date) as though made on and as of such date.
(c) Notice of Breach. The representations and warranties set
forth in this Section 4.2 shall survive the sale, transfer, and
assignment of the Receivables 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 the date of the creation of any Receivable sold
to the Buyer hereunder, 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.
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(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 and has obtained all necessary licenses and approvals with
respect to the Buyer required under federal and Delaware law.
(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.
(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 or (ii)
violate any material provision of law applicable to it, or require any
filing (except for the filings under the UCC), 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.
(e) No Violation. The execution and delivery of this
Agreement, the performance of the transactions contemplated hereby, and
the fulfillment of the terms hereof will not violate any Requirements
of Law applicable to the Buyer, will not 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
Requirement of Law applicable to the Buyer or 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.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Buyer, threatened against the
Buyer, before any Official Body (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.
(g) All Consents Required. All approvals, authorizations,
consents, orders, or other actions of any Official Body 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.
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(h) Solvency. The Buyer is Solvent and will remain Solvent
upon the purchase of the Receivables.
The representations and warranties set forth in this Section 4.3 shall survive
the sale of the Receivables to the Buyer. The Buyer hereby represents and
warrants to the Seller that the representations and warranties of the Buyer set
forth in Section 4.3 are true and correct as of the Closing Date. 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 OF SELLER AND BUYER
Section 5.1 Seller Covenants. The Seller hereby covenants
that:
(a) Receivables to be Accounts, General Intangibles, or
Chattel Paper. The Seller will take no action to cause any Receivable
to be evidenced by any instrument (as defined in the UCC as in effect
in the Relevant UCC State), except in connection with the enforcement
or collection of a Receivable. Except in such circumstances, the Seller
will take no action to cause any Receivable to be anything other than
an "account," a "general intangible," or "chattel paper" (as defined in
the UCC as in effect in the Relevant UCC State).
(b) 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 Adverse
Claim on any Receivable, whether now existing or hereafter created, or
any interest therein. The Seller will immediately notify the Buyer of
the existence of any Adverse Claim on any Receivable and will defend
the right, title, and interest of the Buyer in, to, and under the
Receivables, whether now existing or hereafter created, against all
claims of third parties claiming through or under the Seller.
(c) Credit and Collection Policy and Account Agreements. The
Seller shall comply with the Credit and Collection Policy in regard to
the Receivables, except insofar as any failure to so comply could not
be reasonably expected to impair the collectibility of the Receivables,
on the whole, or a substantial amount thereof, or otherwise have a
Material Adverse Effect and the Receivables shall be serviced in all
respects in a manner consistent with and similar to the revolving
credit consumer credit card accounts and receivables owned by the
Seller.
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(d) Delivery of Collections. In the event that the Seller
receives Collections (other than in the Lockbox Account), the Seller
agrees to deposit such Collections into the Collection Account as soon
as practicable after the receipt thereof, but in no event later than
the second Business Day following the Date of Processing thereof.
(e) Conveyance of Receivables. The Seller covenants and agrees
that it will not convey, assign, exchange, or otherwise transfer any
Receivable arising in an Account to any Person other than the Buyer
prior to the termination of this Agreement pursuant to Article VIII.
(f) Notice of Adverse Claims. The Seller shall notify the
Buyer promptly after becoming aware of any Adverse Claim on any
Receivable.
(g) Separate Business. The Seller will not permit its assets
to be commingled with those of the Buyer and shall maintain separate
records (corporate or otherwise) and books of account from those of the
Buyer. The Seller will not conduct its business in the name of the
Buyer and will cause the Buyer to conduct its business solely in its
own name so as not to mislead others as to the identity of the entity
with which those others are concerned. The Seller will provide for its
operating expenses and liabilities from its own funds. The Seller will
not hold itself out, or permit itself to be held out, as having agreed
to pay, or as generally being liable for, the debts of the Buyer,
except that the organizational expenses of the Buyer may be paid by the
Seller. The Seller shall cause the Buyer not to hold itself out, or
permit itself to be held out, as having agreed to pay, or as being
liable for, the debts of the Seller. The Seller will maintain an arm's
length relationship with the Buyer with respect to any transactions
between the Seller, on the one hand, and the Buyer, on the other.
(h) Conduct of Business. The Seller will do, and will cause
each of its subsidiaries to 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.
(i) Compliance with Laws. The Seller shall comply in all
material respects with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees, or awards to which it may be subject,
except where such failure to comply would not have a Material Adverse
Effect.
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(j) Furnishing of Information and Inspection of Records. The
Seller shall furnish to the Buyer from time to time such information
with respect to the Receivables as the Buyer may reasonably request,
including, without limitation, listings identifying the Obligor and the
outstanding principal balance for each Receivable. The Seller shall, at
any time and from time to time during regular business hours and upon
reasonable notice, permit the Buyer or its agents or representatives
(i) to examine and make copies of and take abstracts from all
documents, books, records, and other information (including, without
limitation, computer programs, tapes, discs, punch cards, data
processing software, and related property and rights) maintained with
respect to Receivables and the related Obligors, (ii) to visit the
offices and properties of the Seller, (iii) to discuss matters relating
to the Receivables or the Seller's performance hereunder with any of
the officers, directors, employees, or independent public accountants
of the Seller having knowledge of such matters, and (iv) to conduct as
many audits of the Receivables during the term of this Agreement as the
Buyer may reasonably request; provided, however, that the Seller shall
only be required to reimburse the Buyer for the cost of one such audit
per year.
(k) 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 Receivables
(including, without limitation, records adequate to permit the
identification of each new Receivable and all Collections of and
adjustments to each existing Receivable). 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.
(l) ERISA. The Seller shall promptly give the Buyer written
notice upon becoming aware that the Seller or any of its subsidiaries
is not in compliance in all material respects with ERISA or that any
ERISA lien on any of the Receivables exists.
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.
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ARTICLE VI
REPURCHASE OBLIGATION
Section 6.1 Mandatory Repurchase.
(a) Breach of Warranty. In the event of a breach with respect
to a Receivable of any of the representations and warranties set forth
in Section 4.1(j) or Sections 4.2(a)(iii) through (vi) or Section
4.2(b), or in the event that a Receivable is not an Eligible Receivable
on the date of its transfer to the Buyer as a result of the failure to
satisfy the conditions set forth in the definition of "Eligible
Receivable," such Receivable shall be designated an "Ineligible
Receivable" and the Seller shall pay to the Buyer an amount in cash
equal to the Purchase Price paid for any such Ineligible Receivable 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
Receivable. Such payment must be made by the close of business on the
next succeeding Settlement Date following the day such Receivable has
been designated an Ineligible Receivable; 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 Receivables sold to the
Buyer on such day. The obligation of the Seller set forth in this
Section 6.1 shall constitute the sole remedy respecting any breach of
the representations and warranties set forth in the above-referenced
Sections or failure to meet the conditions set forth in the definition
of "Eligible Receivable" with respect to such Receivable available to
the Buyer.
(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), (b), and (c), and 4.2(a)(i) and (ii), the Buyer by notice given
in writing to the Seller may direct the Seller to accept reassignment
of the Receivables 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 Receivables within such applicable period on the terms and
conditions set forth below; provided, however, that no such
reassignment shall be required to be made if, at any time during such
applicable period, the Seller delivers to the Buyer an officer's
certificate stating that the representations and warranties contained
in Sections 4.1(a), (b), and (c) and 4.2(a)(i) and (ii) 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 Loan Outstanding Amount. On the day on which such amount
has been paid, each Receivable 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
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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 Receivable. The obligation of the Seller to
purchase each Receivable 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), (b), and
(c) and 4.2(a)(i) and (ii).
Section 6.2 Conveyance of Reassigned Receivables. 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
Receivables 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 Receivables pursuant to Section 6.1.
Section 6.3 Sales are Non-Recourse. Other than the obligations
to repurchase Receivables under the limited circumstances set forth in Section
6.1 and to make payments with respect to Dilution under Section 3.2(b), the
sales of Receivables under this Agreement shall be without recourse to the
Seller.
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.1 Conditions to the Buyer's Obligations Regarding
Receivables. The obligations of the Buyer to purchase the Receivables on any
Business Day 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 day of sale of any Receivable created thereafter with the same
effect as though such representations and warranties had been made on
such date,
(b) All information concerning the Receivables provided to the
Buyer shall be true and correct in all material respects as of the
Closing Date, in the case of Receivables sold to the Buyer on the
Closing Date, or the applicable Business Day, in the case of
Receivables 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,
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(d) With respect to Receivables sold to the Buyer on the
Closing Date, 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 Receivables 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 Obligations under the Credit Agreement.
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.
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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:
TCS Funding V, Inc.
3401 North Louise Avenue, Suite 108
Sioux Falls, South Dakota 57105
Attention: Chief Financial Officer
Telephone: (605) 339-7954
Telecopy: (605) 338-3486
with a copy to:
Miller & Schroeder Investments Corporation
150 South Fifth Street, Suite 3000
Minneapolis, Minnesota 55402
Attention: Senior Vice President-Banking Group
Telephone: (612) 376-1500
Telecopy: (612) 376-1412
(b) in the case of the Seller, to:
The Credit Store, Inc.
3401 North 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.
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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.
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 Receivables for filing under the provisions
of the UCC 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 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 Schedules. The schedules attached hereto and
referred to herein shall constitute a part of this Agreement and are
incorporated into this Agreement for all purposes.
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Section 9.13 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 the Obligations due under the Credit
Agreement it will not institute against or join any other Person in instituting
against the Buyer any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other similar proceeding under the laws of the
United States or any state of the United States.
Section 9.14 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 9.14
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 conveyance, fraudulent transfer and other similar laws
affecting creditors' rights generally, and to the application of
general principles of equity.
Section 9.15 Protection of Right, Title and Interest to
Receivables.
(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
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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 9.15(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
9.15(a) materially misleading within the meaning of Section 9-402(7) of
the UCC 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 Receivables or
keeps records concerning the Receivables or of its principal executive
office and whether, as a result of such relocation, the applicable
provisions of the UCC 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 Receivables and its principal executive office within the
United States of America.
(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.
TCS FUNDING V, INC., as Buyer
By:
---------------------------------
---------------------------------
Its
------------------------------
THE CREDIT STORE, INC., as Seller,
By:
---------------------------------
---------------------------------
Its
------------------------------
(Signature Page 1 of 1 to the Receivables Purchase Agreement)
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Account Schedule to
Receivables Purchase Agreement
dated as of May 1, 2001
CD labeled "TCS Funding V Closing Account Schedule"
delivered to the Buyer and the Lender
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