Exhibit 10.18.6
AMENDMENT NUMBER ELEVEN
TO LOAN AND SECURITY AGREEMENT
This AMENDMENT NUMBER ELEVEN TO LOAN AND SECURITY AGREEMENT, dated as
of September 28, 2001 (this "Amendment"), amends that certain Loan and Security
Agreement, dated as of April 30, 1998 (as amended from time to time, the "Loan
Agreement"), by and between THE CREDIT STORE, INC., a Delaware corporation
("Borrower"), on the one hand, and COAST BUSINESS CREDIT, a division of Southern
Pacific Bank, a California corporation ("Coast"), on the other hand. All
initially capitalized terms used in this Amendment shall have the meanings
ascribed thereto in the Loan Agreement unless specifically defined herein.
R E C I T A L S
WHEREAS, Borrower and Coast wish to amend the Loan Agreement pursuant
to the terms and provisions set forth in this Amendment; and
NOW, THEREFORE, the parties hereto agree as follows:
A M E N D M E N T
Section 1. AMENDMENT TO SECTION 10 OF THE LOAN AGREEMENT. Section 10 of
the Loan Agreement is hereby amended by adding the following paragraph as an
Event of Default:
"(s) Borrower fails to deliver annual financial statements for
fiscal year ending June 30, 2001, containing the unqualified
opinion of, and certification of, an independent certified public
accountant as provided in Section 8.3(6) of the Schedule."
Section 2. AMENDMENT TO SECTION 2.1 SCHEDULE. The introductory
paragraph to Section 2.1 of the Schedule to the Loan Agreement is hereby amended
by deleting such introductory paragraph to the Section in its entirety and
replacing it with the following:
"Loans in a total amount at any time outstanding not to exceed
the lesser of: (i) a total of Thirteen Million Dollars
($13,000,000) at any one time outstanding (the "Maximum Dollar
Amount"), or (ii) the sum of (a), (b) and (c) below; provided,
however, effective October 31, 2001 the Maximum Dollar Amount
shall be permanently reduced to the lesser of Eleven Million Five
Hundred Thousand Dollars ($11,500,000) or an amount equal to
Thirteen Million Dollars ($13,000,000) minus Sixty percent (60%)
of the net cash proceeds (excluding net cash proceeds from
monthly sales by Borrower to TCS Funding IV) derived by Borrower
from sales or securitizations of credit card portfolios on or
after the date of the Amendment and prior to October 31. 2001;
provided, further, effective at all times after October 31, 2001
the Maximum Dollar Amount shall be
1
further permanently reduced by an amount equal to Sixty
percent (60%) of all net cash proceeds (excluding net cash
proceeds from monthly sales by Borrower to TCS Funding IV)
derived by Borrower from sales or securitizations of credit card
portfolios concluded after October 31, 2001."
Section 3. AMENDMENT TO SECTION 3.2 OF THE SCHEDULE RELATING TO THE
FACILITY FEE. Section 3.2 of the Schedule to the Loan Agreement relating to the
Loan Fee and Facility Fee is hereby amended to provide that no additional
Facility Fee will be earned, charged or due unless the Maturity Date is
extended, by mutual agreement, beyond July 30, 2002.
Section 4 AMENDMENT TO SECTION 9.1 OF THE SCHEDULE. The Maturity Date
of May 31, 2002 as set forth in Section 9.1 of the Schedule to the Loan
Agreement is deleted and the date of July 30, 2002 is substituted in place
thereof.
Section 5 AMENDMENT TO SECTION 9.1 OF THE SCHEDULE RELATING TO THE
RENEWAL FEE. Section 9.1 of the Schedule to the Loan Agreement relating to the
Renewal Fee is hereby amended to provide that no new Renewal Fee will be earned,
charged or due unless the Maturity Date is extended, by mutual agreement, beyond
July 30, 2002.
Section 6 AMENDMENT FEE. Borrower shall pay to Coast an amendment fee
(the "Amendment Fee") in the amount of One Hundred Fifty Thousand ($150,000)
which said fee shall be fully earned and payable; One Hundred Thousand Dollars
($100,000) on December 31, 2001 and Fifty Thousand Dollars ($50,000) on May 31,
2002; provided, however, if and only if the Obligations of Borrower are repaid
in full and the Loan Agreement is terminated before May 31, 2002, Coast agrees
to waive the unpaid portion of the Amendment Fee (Fifty Thousand Dollars
($50,000)) which would otherwise have been due and payable on May 31, 2002.
Section 7. CONDITIONS PRECEDENT. The effectiveness of this Amendment is
expressly conditioned upon: (i) receipt by Coast of an executed copy of this
Amendment executed by Borrower, and (ii) receipt by Coast of an executed copy of
the reaffirmation of the Continuing Guaranty executed by American Credit
Alliance, Inc., a Nevada corporation.
Section 8. ENTIRE AGREEMENT. The Loan Agreement, as amended hereby,
embodies the entire agreement and understanding between the parties hereto and
supersedes all prior agreements and understandings relating to the subject
matter hereof. Borrower represents, warrants and agrees that in entering into
the Loan Agreement and consenting to this Amendment, it has not relied on any
representation, promise, understanding or agreement, oral or written, of, by or
with, Coast or any of its agents, employees, or counsel, except the
representations, promises, understandings and agreements specifically contained
in or referred to in the Loan Agreement, as amended hereby.
Section 9. CONFLICTING TERMS. In the event of a conflict between the
terms and provisions of this Amendment and the terms and provisions of the Loan
Agreement, the terms of this Amendment shall govern. In all other respects, the
Loan Agreement, as amended and supplemented hereby, shall remain in full force
and effect.
2
Section 10. MISCELLANEOUS. This Amendment shall be governed by and
construed in accordance with the laws of the State of California. This Amendment
may be executed in any number of counterparts, all of which taken together shall
constitute one agreement, and any party hereto may execute this Amendment by
signing such counterpart.
(Signature Page Follows)
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective officers thereunto duly authorized as of the
date first above written.
BORROWER:
THE CREDIT STORE, INC.,
a Delaware corporation
By ----------------------------------------
President or Executive Vice President
By ----------------------------------------
Secretary or Ass't Secretary
COAST:
COAST BUSINESS CREDIT,
a division of Southern Pacific Bank
By ----------------------------------------
Title -------------------------------------
3
REAFFIRMATION OF GUARANTY
The undersigned has executed a Continuing Guaranty in favor of COAST
BUSINESS CREDIT, a division of Southern Pacific Bank, a California corporation
("Coast") respecting the obligations of THE CREDIT STORE, INC., a Delaware
corporation ("Borrower") owing to Coast. The undersigned acknowledges the terms
of the above Amendment and reaffirms and agrees that (a) its Continuing Guaranty
remains in full force and effect, (b) nothing in such Guaranty obligates Coast
to notify the undersigned of any changes in the financial accommodations made
available to Borrower or to seek reaffirmation of the Continuing Guaranty, and
(c) no requirement to so notify the undersigned or to seek reaffirmation in the
future shall be implied by the execution of the reaffirmation.
AMERICAN CREDIT ALLIANCE, INC.,
A Nevada corporation
By: ------------------------------------
Michael J. Philippe
Executive Vice President and
Chief Financial Officer
4