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AMENDMENT TO AGREEMENT FOR WHOLESALE FINANCING
This Amendment is made to that certain Agreement for Wholesale Financing
executed on the 15th day of January, 1996, between MULTIPLE ZONES INTERNATIONAL,
INC. ("Dealer") and DEUTSCHE FINANCIAL SERVICES CORPORATION ("DFS"), as amended
("Agreement").
FOR VALUE RECEIVED, DFS and Dealer agree as follows:
1. Section 3 of the Agreement is hereby restated to read in its entirety
as follows:
"3. GRANT OF SECURITY INTEREST. To secure payment of all of Dealer's
current and future debts to DFS, whether under this Agreement or any
current or future guaranty or other agreement, Dealer grants DFS a
security interest in all of Dealer's inventory and equipment, whether
now owned or hereafter acquired, all discounts, incentive payments,
rebates, credits (other than advertising co-ops), attachments,
accessories, accessions, returns, repossessions, exchanges,
substitutions and replacements thereto, and all proceeds thereof, and
all accounts, contract rights, chattel paper, instruments, reserves and
general intangibles, owned by or due Dealer, now or in the future,
however these may be due Dealer and wherever located, arising from any
of the above described inventory and equipment and all proceeds thereof.
All such assets are collectively referred to herein as the "Collateral."
All of such terms for which meanings are provided in the Uniform
Commercial Code of the applicable state are used herein with such
meanings. All Collateral financed by DFS, and all proceeds thereof, will
be held in trust by Dealer for DFS, with such proceeds being payable in
accordance with Section 9."
2. Section 9 of the Agreement is hereby restated to read in its entirety
as it appears in the original Agreement for Wholesale Financing dated January
15, 1996, without giving effect to Section 2 of that certain Addendum dated
January 15, 1996, which Section 2 is hereby deleted in its entirety.
3. Section 29 Supplemental Inventory Facility is incorporated into the
Agreement as if fully set forth therein to read as follows:
"29. SUPPLEMENTAL INVENTORY FACILITY.
29.1 CREDIT FACILITY. Subject to the terms of this Agreement, DFS agrees
to provide to Dealer a Supplemental Inventory Facility of Twenty Million
and no/100 Dollars ($20,000,000.00). DFS' decision to advance funds will
not be binding until the funds are actually advanced.
29.2 SPECIAL DEFINITIONS. The following terms will have the following
meanings with respect to the Supplemental Inventory Facility:
"Business Day": Any day that is not a Saturday, Sunday or day on
which banks in San Francisco, California, or New York, New York,
are required or permitted to be closed, and on which dealings in
U.S. dollar deposits are carried out in the interbank eurodollar
market.
"Conversion", "Convert" and "Converted": each refer to a
conversion of Supplemental Inventory Loans from either LIBOR
Loans to Prime Rate Loans or vice versa.
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"Electronic Transfers": means any electronic transfer by Automated
Clearing House, Federal Wire Funds Transfer or such other electronic
means as DFS may announce from time to time. "Eurocurrency Liabilities':
has the meaning specified in Regulation D of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Eurocurrency Reserve Percentage": for any Interest Period for all LIBOR
Loans comprising part of the same borrowing, means the daily average
reserve percentage applicable during each day of such LIBOR Loans under
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including without limitation any emergency,
supplemental or other marginal reserve requirement for a member bank of
the Federal Reserve System in New York City) with respect to liabilities
or assets consisting of or including Eurocurrency Liabilities (or with
respect to any other category of liabilities that includes deposits by
reference to which the interest rate on LIBOR Loans is determined)
having a term equal to such Interest Period.
"Funding Date": shall mean the date designated by Dealer for the making
of a Supplemental Inventory Loan hereunder.
"Interest Period": means, for each LIBOR Loan the period commencing on
the date of such LIBOR Loan or the date of the Conversion of any Prime
Rate Loan into a LIBOR Loan, and ending on the last day of the period
selected by Dealer pursuant to the provisions below and, thereafter,
each subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period
selected by the Dealer requesting a LIBOR Loan pursuant to the
provisions below. The duration of each such Interest Period shall be
one, two, three or six months, as Dealer may, upon notice received by
DFS not later than 11:00 a.m. (San Francisco, California time) on the
third Business Day prior to the first day of such Interest Period,
select; provided that:
(a) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next
succeeding Business Day; provided that, if such extension would
cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period
shall occur on the next-preceding Business Day;
(b) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no
numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month; and
(c) no Interest Period may be selected that ends after the term
of this Agreement.
"Inventory": shall mean all of Dealer's presently owned and hereafter
acquired goods which are held for sale or lease.
"LIBOR Loans": shall mean Supplemental Inventory Loans bearing interest
for Interest Periods at a rate determined by reference to the LIBOR Rate
(Reserve Adjusted).
"LIBOR Rate": means, for any Interest Period, an interest rate per
annum, truncated to the nearest one-thousandth of one percent, for
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deposits in U.S. dollars that appears on page 3750 of the Dow Xxxxx
Telerate Service (or any other page that may replace any such page on
such service in the judgment of DFS) at 11:00 a.m. (London time) two
Business Days before the first day of such Interest Period and for a
period equal to such Interest Period.
"LIBOR Rate (Reserve Adjusted)": shall mean, for any LIBOR Loan for any
Interest Period, the rate per annum obtained by dividing the LIBOR Rate
by a percentage equal to 100% minus the Eurocurrency Reserve percentage
for such Interest Period.
"Prime Rate": for purposes of the Supplemental Inventory Facility only,
the rate of interest which Chase Manhattan Bank publicly announces from
to time to time as its prime rate or reference rate; provided, however,
that for purposes of the Supplemental Inventory Facility only, the
interest rate charged to Dealer on Prime Rate Loans will at no time be
computed on a Prime Rate of less than seven percent (7%) per annum. The
Prime Rate will change and take effect for purposes of the Supplemental
Inventory Facility on the day that Chase Manhattan Bank announces any
change in its Prime Rate or reference rate.
"Prime Rate Loans": shall mean Supplemental Inventory Loans bearing
interest at a rate determined by reference to the Prime Rate.
"Supplemental Inventory Facility": a credit facility extended pursuant
to this Section 29.
"Supplemental Inventory Loan": shall mean any advance made to or for the
benefit of Dealer pursuant to the Supplemental Inventory Facility, and
shall consist of LIBOR Loans and Prime Rate Loans.
29.3 LOAN OPTIONS. Each Supplemental Inventory Loan shall be either a Prime Rate
Loan or a LIBOR Loan as shall be selected by Dealer, except as otherwise
provided herein. During any period that any default under this Agreement or any
event which with notice, the passage of time, or both, would constitute a
default, shall occur and be continuing, Dealer shall no longer have the option
of electing LIBOR Loans, and all Supplemental Inventory Loans made during such
period shall be Prime Rate Loans only; it being understood, however, that
nothing herein shall be construed to waive, amend or modify any right or power
of DFS hereunder, including, without limitation, all rights to terminate the
credit facilities hereunder and declare all Obligations immediately due and
payable. No LIBOR Loans shall be made for less than the number of days
designated for the Interest Period of any such Supplemental Inventory Loan, and
in no event less than 30 days prior to the termination of this Agreement. Each
LIBOR Loan shall be in an original principal amount of One Million Dollars
($1,000,000.00), or any whole multiple of One Million Dollars ($1,000,000.00) in
excess thereof. All Supplemental Inventory Loans will be funded and repaid in
currency of the United States.
29.3.1 BORROWING PROCEDURES. The Dealer shall give DFS written notice
(which may be made by facsimile, with the original promptly delivered to
DFS), not later than 11:00 a.m., San Francisco, California time, at
least three (3) Business Days prior to the Funding Date in the instance
of LIBOR Loans, or one (1) Business Day prior to the Funding Date in the
instance of Prime Rate Loans. Each notice shall specify (i) the Funding
Date, (ii) the aggregate amount of the Loans requested, (iii) whether
the Supplemental Inventory Loan shall be a Prime Rate Loan or a LIBOR
Loan, and (iv) with respect to LIBOR Loans, the Interest Period with
respect thereto (subject to the limitations set forth in the definition
of Interest Period). Any notice not specifying the type of Supplemental
Inventory Loan shall be deemed a request for a Prime Rate Loan. In
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the case of any LIBOR Loan, failure to deliver a timely notice shall be
deemed a request for a Prime Rate Loan.
29.3.2 MATURITY OF LOANS. Each LIBOR Loan shall mature on the last day
of the applicable Interest Period, but in no event later than the term
of this Agreement.
29.3.3 CONVERSION AND DESIGNATION OF INTEREST PERIODS.
(i) Dealer may on any Business Day, upon notice given to DFS not
later than 11:00 a.m. (San Francisco, California time) on the third
Business Day prior to the date of the proposed Conversion, Convert all
or any portion of the Supplemental Inventory Loans; provided that:
(1) any conversion of LIBOR Loans into Prime Rate Loans shall be
made only on the last day of an Interest Period for such LIBOR
Loans; any conversion of Prime Rate Loans into LIBOR Loans,
shall be in an amount not less than the minimum amount specified
in Section 29.3;
(2) each Conversion of less than all Supplemental Inventory
Loans comprising part of the same borrowing shall be deemed to
be an additional Supplemental Inventory Loan for purposes of
Section 29.3; and
(3) no Prime Rate Loans may be Converted into LIBOR Loans while
a default under this Agreement or any event which with notice,
the passage of time, or both, would constitute a default, has
occurred and is continuing.
Each such notice of Conversion shall, within the restrictions specified
above, specify (x) the date of such conversion, (y) the Supplemental
Inventory Loans to be Converted and (z) if such conversion is into LIBOR
Loans, the initial Interest Period for such Supplemental Inventory
Loans. Each notice of Conversion shall be irrevocable and binding on
Dealer.
(ii) On the date on which the aggregate unpaid principal amount of LIBOR
Loans shall be reduced, by payment or prepayment or otherwise, to less
than One Million Dollars ($1,000,000.00), such LIBOR Loans shall
automatically Convert into Prime Rate Loans.
(iii) If Dealer shall fail to select the duration of any Interest Period
for any LIBOR Loans in accordance with the provisions contained in the
definition of "Interest Period", DFS will forthwith so notify Dealer,
whereupon each such LIBOR Loan will automatically on the last day of the
then-existing Interest Period therefor Convert into a Prime Rate Loan.
29.3.4 INTEREST; CALCULATION OF CHARGES.
(a) Prime Rate Loans.
(i) Interest. Dealer hereby agrees to pay interest to DFS, on the Daily
Contract Balance (AS defined below) owed under Dealer's Prime Rate Loans
at a per annum rate that is equal to the Prime Rate minus twenty five
one-hundredths of one percent (0.25%) per annum. Interest on Prime Rate
Loans prior to maturity shall be payable monthly and at maturity.
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(ii) Calculation Of Charges. Such interest rate will: (i) be computed
based on a 360 day year; (ii) be calculated with respect to each day by
multiplying the Daily Rate (as defined below) by the Daily Contract
Balance; and (iii) accrue from the date DFS authorizes any Electronic
Transfer or otherwise advances a Prime Rate Loan to or for the benefit
of Dealer, until DFS receives full payment of the principal debt Dealer
owes DFS in good funds in accordance with DFS' payment recognition
policy and DFS applies such payment to Dealer's principal debt in
accordance with the terms of this Agreement.
(iii) Definitions. The "Daily Rate" is the quotient of the applicable
annual rate provided herein divided by 360. The "Daily Contract Balance"
is the amount of outstanding principal debt which Dealer owes DFS on the
Prime Rate Loans at the end of each day (including the amount of all
Electronic Transfers authorized) after DFS has credited payments which
it has received on the Prime Rate Loans.
(b) LIBOR Loans.
(i) Interest. The unpaid principal amount of the LIBOR Loans shall bear
interest prior to maturity at a rate per annum equal to the LIBOR Rate
(Reserve Adjusted) in effect for each Interest Period, plus two percent
(2.0%) per annum. Interest on LIBOR Loans prior to maturity shall be
payable monthly and at maturity.
(ii) Calculation of Charges. Interest on each LIBOR Loan shall be
computed on the basis of a year consisting of 360 days and paid for
actual days elapsed, calculated as to each Interest Period from and
including the first day thereof but excluding the last day thereof.
29.4 SUPPLEMENTAL INVENTORY LOANS. As long as Dealer's credit and financial
condition are satisfactory to DFS, DFS will from time to time loan to Dealer, at
Dealer's request, such amount as DFS, in its sole discretion, may deem
advisable, but in any event not more than (a) the Loan Value (as defined below)
of Dealer's Supplemental Inventory (as defined below), minus (b) the amount of
Dealer's SPP Deficit (as defined below), if any, under Dealer's scheduled
payment inventory floorplan financing program with DFS (the "SPP Program") (a)
minus (b) is referred to as the "Supplemental Inventory Available Credit").
As used in this Section, the term "Supplemental Inventory" means Dealer's
Inventory (a) which is aged less than one hundred fifty (150) days from the date
of invoice; (b) that conforms to the representations and warranties of Sections
4 and 29.7 of this Agreement; (c) that is in Dealer's possession and control and
is at all times subject to DFS' duly perfected first priority security interest;
and (e) that DFS deems, in its sole discretion, to be acceptable for financing
pursuant to this Section.
As used in this Section, the term "Loan Value" means the lesser of (1) sixty
percent (60%) of the Value (as defined below) of the Supplemental Inventory; and
(2) Dealer's maximum Supplemental Inventory Facility from time to time
established by DFS.
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As used in this Section, the term "Value" means the sum of (i) the cost to
Dealer of Dealer's Supplemental Inventory (taking into account any reduction in
such cost due to price protection credits received by Dealer), with respect to
all of Dealer's Supplemental Inventory other than Supplemental Inventory being
financed by DFS under Dealer's SPP Program, plus (ii) the SPP Surplus (as
defined below), if any, with respect to Dealer's Supplemental Inventory which
consists of Inventory being financed by DFS under the SPP Program, all as
determined in accordance with generally accepted accounting principles
consistently applied.
Dealer's "SPP Deficit" shall mean the amount, if any, by which Dealer's total
current outstanding indebtedness to DFS under the SPP Program as of the date of
the Inventory Report (as defined below) exceeds the SPP Inventory Value (as
defined below) as determined by, and as of the date of, the Inventory Report.
Dealer's "SPP Surplus" shall mean the amount, if any, by which the SPP Inventory
Value, as determined by, and as of the date of, the Inventory Report, exceeds
Dealer's total current outstanding indebtedness to DFS under the SPP Program as
of the date of the Inventory Report. Such SPP Deficit or SPP Surplus, as
applicable, will remain in effect for purposes of this Agreement until the
preparation and delivery by Dealer to DFS of a new Inventory Report.
The term "SPP Inventory Value" is defined herein to mean the cost to Dealer, as
determined in accordance with generally accepted accounting principles
consistently applied, of Dealer's Inventory financed by DFS under the SPP
Program (taking into account any reduction in such cost due to price protection
credits received by Dealer), that is aged less than one hundred fifty (150) days
from the date of invoice, that is unsold and in Dealer's possession and control
as of the date of the Inventory Report and to the extent that DFS has a first
priority, fully perfected security interest therein.
29.5 INVENTORY REPORTS. Dealer will deliver to DFS weekly, upon each request for
an advance and as otherwise requested by DFS, an inventory report in such detail
as DFS may request from time to time, which, among other things, separately
specifies the cost of all of Dealer's Inventory financed by DFS under the SPP
Program and the cost of all of Dealer's Inventory not being financed under the
SPP Program (taking into account any reduction in such cost due to price
protection credits received by Dealer), that is unsold and in Dealer's
possession and control as of the date of the Inventory Report (the "Inventory
Report").
29.6 PAYMENTS. If at any time the aggregate amount of outstanding Supplemental
Inventory Loans exceeds the Supplemental Inventory Available Credit, Dealer
will, immediately upon demand, repay an amount of the Supplemental Inventory
Loans equal to the difference between (a) such aggregate amount of outstanding
Supplemental Inventory Loans and (b) the Supplemental Inventory Available
Credit. Furthermore, as an amendment to the terms of Dealer's SPP Program, in
the event Dealer's SPP Deficit exceeds at any time (a) the Loan Value of
Dealer's Supplemental Inventory, minus (b) the outstanding
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Supplemental Inventory Loans, Dealer will immediately pay to DFS, as a reduction
of Dealer's total current outstanding indebtedness to DFS under the SPP Program,
the difference between (i) Dealer's SPP Deficit, and (ii) (a) the Loan Value of
Dealer's Supplemental Inventory minus (b) Dealer's Outstanding Supplemental
Inventory LOANS.
29.7 WARRANTIES, REPRESENTATIONS AND COVENANTS. Dealer warrants and represents
to DFS and covenants and agrees with DFS that (except as otherwise specified in
this Agreement: (a) Inventory will be at all times subject to DFS' duly
perfected first priority security interest; (b) Inventory will be kept only at
the following locations: ______________________________________________________
______________________________; (c) on or before the 10th day of each month and,
in any event, immediately upon each demand by DFS therefor, Dealer will execute
and deliver to DFS schedules specifying Dealer's cost of Inventory, the selling
price thereof and such other matters and information relating to Inventory as
DFS may from time to time request: (d) Dealer now keeps and will keep correct
and accurate records itemizing and describing the kind, type, quality and
quantity of Inventory, Dealer's cost therefor and the selling price thereof, the
daily withdrawals therefrom and the additions thereto: (e) Inventory is not and
will not be stored with a bailee, repairman, warehouseman or similar party
without DFS' prior written consent, and Dealer will, concurrently with delivery
to such party, cause any such party to issue and deliver to DFS, in form
acceptable to DFS, warehouse receipts, in DFS' name evidencing the storage Of
such Inventory, and waivers of warehouseman's liens in favor of DFS; (f) DFS and
its agents and representatives may, from time to time upon demand, during
Dealer's usual business hours and upon 24 hour advance written notice to dealer
and any warehouseman, inspect and examine Inventory and check and test the same
as to quality, quantity, Value and condition, and any collection by DFS of any
amounts Dealer owes DFS under this Agreement at or during DFS' examination of
the Inventory will not relieve Dealer of its continuing obligation to pay its
obligations owed to DFS in strict accordance with the terms of this Agreement;
(g) Dealer will pay all taxes, rents, business taxes, and the like on the
premises where the Inventory is located; and (h) Dealer will not rent, lease,
lend, demonstrate, pledge, transfer or secrete any of the Inventory or use any
of the Inventory for any purpose other than exhibition and sale to buyers in the
ordinary course of business, without DFS' prior written consent.
29.8 REVISIONS. Dealer agrees that the percentage of Value advanced, the
acceptability and Value of Inventory and the period during which such advances
are to remain outstanding are and will be entirely in DFS' sole discretion and
that DFS has the right at any time to revise any limit placed by DFS on the
amount of such advances or on the valuation of Inventory or DFS may, in its sole
discretion, refuse to make further advances. If Inventory remains in stock for a
period of time which DFS in its sole judgment deems excessive, such Inventory
may, at DFS' option, be considered to be of no value for the purpose of loans or
advances although the same remains in stock and DFS shall retain its security
interest therein according to the terms and provisions of this Agreement.
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29.9
(a) INCREASED COSTS. If, as a result of any law, regulation, treaty OR
directive, or any change therein, or in the interpretation or application
thereof or compliance by DFS with any request or directive (whether or not
having the force of law) from any court or governmental authority, agency or
instrumentality:
(i) the basis of taxation of payments to DFS (for purposes of this
Section 29.9, "DFS" shall also refer to any affiliates of DFS engaged in
the funding of the lending obligations hereunder) of the principal of or
interest on any LIBOR Loan (other than taxes imposed on the overall net
income of DFS by the jurisdiction in which DFS has its principal office)
is changed;
(ii) any reserve, special deposit or similar requirements against assets
of, deposits with or for the account of, or credit extended by, DFS are
imposed, modified or deemed applicable; or
(iii) any other condition affecting this Agreement or the LIBOR Loans is
imposed on DFS or the interbank eurodollar market;
and DFS determines that, by reason thereof, the cost to DFS of making or
maintaining any of the LIBOR Loans is increased, or the amount of any
sum receivable by DFS hereunder in respect of any of the LIBOR Loans is
reduced;
then, Dealer shall pay to DFS upon demand (which demand shall be
accompanied by a statement setting forth the basis for the calculation
thereof but only to the extent not theretofore provided to Dealer) such
additional amount or amounts as will compensate DFS for such additional
cost or reduction (provided such amount has not been compensated for in
the calculation of the Eurocurrency Reserve Percentage). Determinations
by DFS for purposes of this Section of the additional amounts required
to compensate DFS in respect of the foregoing shall be conclusive,
absent manifest error.
(b) EURODOLLAR DEPOSITS UNAVAILABLE OR INTEREST RATE UNASCERTAINABLE. If Dealer
has any LIBOR Loan outstanding, or has notified DFS of the intention to borrow a
LIBOR Loan as provided herein, then in the event that prior to any Interest
Period DFS shall have determined (which determination shall be conclusive and
binding on the parties hereto) that deposits of the necessary amount for that
relevant Interest Period are not available to DFS in the interbank eurodollar
market or that, by reason of circumstances affecting such market, adequate and
reasonable means do not exist for ascertaining the LIBOR Rate applicable to such
period or term, as the case may be, DFS shall promptly give notice of such
determination to Dealer, and any notice of new LIBOR Loans previously given by
Dealer and not yet borrowed or Converted shall be deemed a notice to make a
Prime Rate Loan to the extent of DFS' proposed LIBOR Loan.
(c) CHANGES IN LAW RENDERING LIBOR LOANS UNLAWFUL. If at any time due to any new
law, treaty or regulation, or any change of any existing law, treaty or
regulation, or any interpretation thereof by any governmental or other
regulatory authority charged with the administration thereof, or for any other
reason arising subsequent to the date hereof, it shall become unlawful for DFS
to fund any LIBOR Loan which it is committed to make hereunder, the obligation
of DFS to provide LIBOR Loans shall, upon the
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happening of such event, forthwith be suspended for the duration of such
illegality. If any such change shall make it unlawful to continue LIBOR Loans
previously made by it hereunder, DFS shall, upon the happening of such event,
notify Dealer thereof in writing stating the reasons therefor, and Dealer shall,
if required by such law, regulation or interpretation, on such date as shall be
specified in such notice, either Convert such unlawful LIBOR Loans to Prime Rate
Loans, or prepay all such LIBOR Loans, without any penalty or premium whatsoever
(except as provided in Section 29.9(e), to DFS in full. Any prepayment made
pursuant to this Section 29.9(c) shall be deemed to reduce the aggregate credit
available under the Supplemental Inventory Facility by the principal amount so
prepaid. Any such prepayment shall be subject to the provisions of Section
29.9(e).
(d) CAPITAL ADEQUACY. If DFS shall determine at any time that the adoption of
any law, rule, guideline or regulation regarding capital adequacy, or compliance
with any law, rule, guideline or regulation regarding capital adequacy, or any
change therein or in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by DFS with any request
or directive or compliance with any law, rule, guideline or regulation regarding
capital adequacy (whether or not having the force of law) from any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on DFS' capital as a consequence of its obligations
hereunder to a level below that which DFS could have achieved but for such
adoption, change or compliance (taking into consideration DFS' policies with
respect to capital adequacy) by an amount deemed by DFS to be material, then
Dealer shall pay to DFS upon demand such amount or amounts, in addition to the
amounts payable under the other provisions of this Agreement, as will compensate
DFS for such reduction. Any such demand by DFS hereunder shall be in writing,
and shall set forth the reasons for such demand and copies of all documentation
reasonably relevant in support thereof. Determinations by DFS for purposes of
this Section 29.9(d) of the additional amount or amounts required to compensate
DFS in respect of the foregoing shall be conclusive in the absence of manifest
error. In determining such amount or amounts, DFS may use any reasonable
averaging and attribution methods.
(e) INDEMNITY; PREPAYMENT FEE.
(i) Dealer will indemnify DFS against any loss or expense which DFS may
sustain or incur, including without limitation, any loss or expense
sustained or incurred in obtaining, liquidating or employing deposits or
other funds acquired to effect, fund or maintain a Supplemental
Inventory Loan (a) as a consequence of any failure by Dealer to make any
payment when due of any amount due hereunder in connection with a LIBOR
Loan, (b) due to any failure of Dealer to borrow on a date specified
therefor in a notice thereof, or (c) due to any payment or prepayment of
any LIBOR Loan on a date other than the last day of the Interest Period
for such Loan.
(ii) In the event Dealer prepays any LIBOR Loan for any reason, in
addition to paying any amounts for which Dealer may be obligated under
Section 29-9(eHi) above, and in addition to paying all interest owed on
such LIBOR Loan, Dealer agrees to pay DFS a prepayment fee in an amount
equal to the difference, if any, between (a) the interest which would
have been payable by Dealer to DFS if such LIBOR Loan had been a Prime
Rate Loan made by DFS on the same day DFS made such LIBOR Loan and
repaid on the date of prepayment,
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minus (b) the interest payable by Dealer on such LIBOR Loan through the
date of prepayment. Such prepayment fee will be due and payable in
accordance with DFS' billing statement.
(f) DISCRETION AS TO MANNER OF FUNDING. Notwithstanding any provision of the
Supplemental Inventory Facility to the contrary, DFS shall be entitled to fund
and maintain its funding of all or any part of its LIBOR Loans in any manner it
elects, it being understood, however, that for the purposes of the Supplemental
Inventory Facility all determinations hereunder shall be made as if DFS had
actually funded and maintained each LIBOR Loan through the purchase of deposits
having a maturity corresponding to the maturity of each LIBOR Loan and bearing
an interest rate equal to the LIBOR Rate. DFS may, if it so elects, fulfill any
commitment to make LIBOR Loans by causing a foreign affiliate to make or
continue such LIBOR Loans, provided, however, that in such event such
Supplemental Inventory Loans shall be deemed for the purposes of the
Supplemental Inventory Facility to have been made by DFS, and the obligation of
the Dealer to repay such Supplemental Inventory Loans shall nevertheless be to
DFS and shall be deemed held by DFS, to the extent of such Supplemental
Inventory Loans, for the account of such branch or affiliate.
29.10 CONTINUING REQUIREMENTS. Advances under the Supplemental Inventory
Facility will be made by DFS, at Dealer's direction, by paper check or
Electronic Transfer. If Dealer does not request advances be made in a specific
method of transfer, DFS may determine from time to time in its sole discretion
what method of transfer to use.
29.11 CERTAIN CHARGES. Dealer will pay DFS' fees for transfers of funds to or
from the Dealer. DFS may, from time to time, announce in writing to Dealer its
policies and procedures regarding its administration of this facility,
including, without limitation, DFS' fees for transfers of funds to or from
Dealer, including Electronic Transfers; any subsequent use by Dealer of this
facility following any such announcement shall constitute Dealer's acceptance of
such revised policies and procedures.
29.12 DEFAULT INTEREST RATE. In the event of a default under this Agreement and
Dealer's failure to cure same within the applicable cure period, if any, DFS may
without prior demand, raise the rate of interest accruing on the disbursed
unpaid principal balance of any Supplemental Inventory Loan by three percentage
points (3%) above the rate of interest otherwise applicable, whether or not DFS
elects to accelerate the unpaid principal balances as a result of a default.
29.13 BILLING STATEMENT. In accordance with and pursuant and subject to the
terms of Section 11 of this Agreement, DFS will send Dealer a monthly billing
statement identifying all interest, fees and other charges due on the
Supplemental Inventory Facility.
29.14 INCORPORATION OF OTHER TERMS. To the extent consistent with the terms of
the Supplemental Inventory Facility, the other terms of this Agreement shall
apply to the Supplemental Inventory Facility. Except as expressly stated above,
the terms of the Supplemental Inventory Facility will not apply to Dealer's SPP
Program.
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4. The following paragraph is incorporated into the Agreement as if
fully set forth therein:
"Dealer will at all times maintain:
(a) a Tangible Net Worth and Subordinated Debt in the combined
amount of not less than Thirty-Five Million Dollars
($35,000,000.00);
(b) a ratio of Debt minus Subordinated Debt to Tangible Net
Worth and Subordinated Debt of not more than three and one half
to one (3.5:1); and
(c) Working Capital of not less than Thirty Million Dollars
($30,000,000.00).
For purposes of this paragraph: (i) "Tangible Net Worth" means
the book value of Dealer's assets less liabilities, excluding
from such assets all Intangibles; (ii) "Intangibles" means and
includes general intangibles (as that term is defined in the
Uniform Commercial Code); accounts receivable and advances due
from officers, directors, employees, stockholders and
affiliates; leasehold improvements net of depreciation;
licenses; good will; prepaid expenses; escrow deposits;
covenants not to compete; the excess of cost over book value of
acquired assets; franchise fees; organizational costs; finance
reserves held for recourse obligations; capitalized research and
development costs; and such other similar items as DFS may from
time to time determine in DFS' sole discretion; (iii) "Debt"
means all of Dealer's liabilities and indebtedness for borrowed
money of any kind and nature whatsoever, whether direct or
indirect, absolute or contingent, and including obligations
under capitalized leases, guaranties, or with respect to which
Dealer has pledged assets to secure performance, whether or not
direct recourse liability has been assumed by Dealer; (iv)
"Subordinated Debt" means all of Dealer's Debt which is
subordinated to the payment of Dealer's liabilities to DFS by an
agreement in form and substance satisfactory to DFS; (v)
"Working Capital" means Current Tangible Assets less current
liabilities; and (v) "Current Tangible Assets" means Dealer's
current assets less, to the extent otherwise included herein,
all Intangibles. The foregoing terms shall be determined in
accordance with generally accepted accounting principles
consistently applied, and, if applicable, on a consolidated
basis."
5. In addition to the events of default set forth in the Agreement,
Dealer will be in default to DFS under the Agreement upon the occurrence of a
default by Dealer to U.S. Bank of Washington, N.A. (or any successor bank or
lending institution to the loan facility currently in effect between Dealer and
U.S. Bank of Washington, N.A.), and the expiration of any applicable cure period
granted by such bank to Dealer. Dealer will not be entitled to any cure period
under the Agreement with respect to any such default.
6. Attached hereto as Exhibit A is a list of all of Dealer's
subsidiaries and affiliates, their respective principal places of business and
states or registries of incorporation. Upon the creation of any NEW subsidiaries
or affiliates, Dealer will promptly provide DFS with a revised Exhibit A which
reflects such new subsidiaries and affiliates.
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All other terms and provision of the Agreement, to the extent consistent
with the foregoing, are hereby ratified and will remain unchanged and in full
force and effect.
IN WITNESS WHEREOF, Dealer and DFS have both read this Amendment to the
Agreement for Wholesale Financing, understand all the terms and provisions
hereof and agree to be bound thereby and subject thereto as of this 23rd day of
April, 1997.
MULTIPLE ZONES INTERNATIONAL, INC.
Attest:
By: [SIG]
[SIG] -------------------------------
-------------------------------- Title: SVP Finance, CFO
(Assistant) Secretary ---------------------------
DEUTSCHE FINANCIAL SERVICES CORPORATION
By: [SIG]
-------------------------------
Title: Regional Vice President
---------------------------
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SECRETARY'S CERTIFICATE OF RESOLUTION
I certify that I am the Secretary or Assistant Secretary of the
corporation named below, and that the following completely and accurately sets
forth certain resolutions of the Board of Directors of the corporation adopted
at a special meeting thereof held on due notice (and with shareholder approval,
if required by law), at which meeting there was present a quorum authorized to
transact the business described below, and that the proceedings of the meeting
were in accordance with the certificate of incorporation, charter and by-laws of
the corporation, and that they have not been revoked, annulled or amended in any
manner whatsoever.
Upon motion duly made and seconded, the following resolution was
unanimously adopted after full discussion:
"RESOLVED, That the several officers, directors, and agents of this
corporation, or any one or more of them, are hereby authorized and empowered on
behalf of this corporation: to obtain financing from Deutsche Financial Services
Corporation ("DFS") in such amounts and on such terms as such officers,
directors or agents deem proper; to enter into financing, security, pledge and
other agreements with DFS relating to the terms upon which such financing may be
obtained and security and/or other credit support is to be furnished by this
corporation therefor; from time to time to supplement or amend any such
agreements; execute and deliver any and all assignments, loan requests and
schedules; and from time to time to pledge, assign, mortgage, grant security
interests, and otherwise transfer, to DFS as collateral security for any
obligations of this corporation to DFS, whenever and however arising, any assets
of this corporation, whether now owned or hereafter acquired; the Board of
Directors hereby ratifying, approving and confirming all that any of said
officers, directors or agents have done or may do with respect to the
foregoing."
I do further certify that the following are the names and specimen
signatures of the officers and agents of said corporation so empowered and
authorized, namely:
President:
------------------------ -------------------------------
(Print Name) (Signature)
Vice-President: Xxxxx X. Xxxxx [SIG]
------------------------ -------------------------------
(Print Name) (Signature)
Secretary: Xxxxxx X. Xxxxx, Xx. [SIG]
------------------------ -------------------------------
(Print Name) (Signature)
Agent: Xxxx Xxxxxx [SIG]
------------------------ -------------------------------
(Print Name) (Signature)
Agent: Xxxxxxx Xxxxxxxx [SIG]
------------------------ -------------------------------
(Print Name) (Signature)
IN WITNESS WHEREOF, I have executed and affixed the seal of the
corporation on the date stated below.
Dated: 4/23/97 ,1997 [SIG]
------------------- -------------------------------
(Assistant) Secretary
MULTIPLE ZONES INTERNATIONAL, INC.
(SEAL)
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EXHIBIT A
SUBSIDIARIES AND AFFILIATES
[To be provided by Dealer.]
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