THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment"), dated as of March __, 2003, is
entered into among CONGRESS FINANCIAL CORPORATION (WESTERN), a California corporation ("Lender"), and PC MALL,
INC., a Delaware corporation formerly known as IdeaMall, Inc. ("PC Mall"), PC MALL SALES, INC., a California
corporation formerly known as Creative Computers, Inc. ("PC Mall Sales") XXXXX.XXX, INC., a Delaware corporation
("ecost"), XXXXXX.XXX, INC., a Delaware corporation ("eLinux"), CCIT, INC., a Delaware corporation formerly known
as Creative Computers Integrated Technologies, Inc. ("CCIT"), WF ACQUISITION SUB, INC., a Delaware corporation
("WF Sub"), COMPUTABILITY LIMITED, a Delaware corporation ("Computability"), AF SERVICES, INC., a Delaware
corporation ("AF Services"), PC MALL GOV, INC., a Delaware corporation ("PCMG"), CLUBMAC, INC., a Delaware
corporation ("ClubMac"), ONSALE, INC., a Delaware corporation ("Onsale"), AV ACQUISITION, INC., a Delaware
corporation ("AV Acquisition"), MALL ACQUISITION 1, INC., a Delaware corporation formerly known as XXX.xxx, Inc.
("Acquisition 1") and MALL ACQUISITION 2, INC., a Delaware corporation formerly known as XXXxxx.xxx, Inc.
("Acquisition 2"), jointly and severally as co-borrowers (each a "Borrower" and collectively, "Borrowers").
RECITALS
A. Borrowers and Lender have previously entered into that certain Loan and Security Agreement dated March
7, 2001 as amended (the "Loan Agreement"), pursuant to which Lender has made certain loans and financial
accommodations available to Borrowers. Terms used herein without definition shall have the meanings ascribed to
them in the Loan Agreement.
B. Borrowers have requested Lender to amend the Loan Agreement, and Lender is willing to amend the Loan
Agreement, all upon the terms and conditions set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, and for
other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereby agree as follows:
1. Amendments.
(a) Availability Reserve Upon Sale of Real Estate. Clause (iv) of the last sentence in the definition of
"Availability Reserves" in Section 1.7 of the Loan Agreement is hereby deleted in its entirety.
(b) DFS. The definition of "DFS" in Section 1.16 of the Loan Agreement is hereby amended and restated to
read in its entirety as follows:
"1.16 'DFS' shall mean GE Commercial Distribution Finance
Corporation, a Nevada corporation formerly known as Deutsche Financial
Services Corporation."
(c) Eligible Government Accounts. A new clause (s) is hereby added to the definition of "Eligible Accounts"
in Section 1.19 of the Loan Agreement as follows:
"(s) such Accounts owed by the United States of America, any State, political
subdivision, agency or instrumentality thereof, with respect to which
Borrowers have not fully complied with the Federal Assignment of Claims Act of
1940, as amended, or any similar state or local law, if applicable, do not
constitute more than twenty percent (20%) of all otherwise Eligible Accounts
(but the portion of such Accounts not in excess of such percentage may be
deemed Eligible Accounts)."
Additionally, the second proviso in Section 2.1(a)(i) of the Loan Agreement is hereby deleted in its entirety.
(d) Eurodollar Rate Margin. The definition of "Eurodollar Rate Margin" in Section 1.28 of the Loan
Agreement is hereby amended and restated to read in its entirety as follows:
"1.28 'Eurodollar Rate Margin' based upon the audited net income of
Borrowers on a consolidated basis during any twelve (12) month fiscal year
shall mean (a) two percent (2.00%) per annum if such audited net income was
greater than Two Million Five Hundred Thousand Dollars ($2,500,000), (b) two
and one-quarter percent (2.25%) per annum if such audited net income was equal
to or less than Two Million Five Hundred Thousand Dollars ($2,500,000) but not
less than One Dollar ($1), and (c) two and one-half percent (2.50%) per annum
if such audited net income was less than One Dollar ($1), as adjusted pursuant
to Section 3.1(d) hereof, provided, that, the Eurodollar Rate Margin shall not
be reduced if an Event of Default has occurred and is continuing as determined
by Lender. For the purposes of this Section 1.28, the 'audited net income' of
Borrowers on a consolidated basis shall mean such net income as determined in
accordance with GAAP based upon the audited financial statements furnished to
Lender in accordance with clause 9.6(a)(ii) hereof, without, however, giving
effect to any extraordinary gains or extraordinary losses or any non-cash
write-ups or non-cash write-downs."
(e) Excess Availability. Paragraph (b) of the definition of "Excess Availability" in Section 1.30 of the
Loan Agreement is hereby amended and restated to read in its entirety as follows:
"(b) the amount of all then outstanding and unpaid Obligations
(but not including for this purpose the then outstanding principal amount of
the Term Loan)."
(f) Apple In Transit Inventory. The proviso in Section 2.1(a)(ii)(A) of the Loan Agreement is hereby
amended and restated to read in its entirety as follows:
"provided, that, the total sum available under this Section
2.1(a)(ii)(A) based upon Eligible Inventory that is in transit from Apple
Computer to Borrowers shall not exceed Two Million Dollars ($2,000,000) at any
time, unless Borrowers have provided Lender with a current borrowing base
certificate (separately identifying such in-transit Eligible Inventory) and a
current certificate of Borrowers' payables and accrued payables to Apple
Computer (with such supporting documentation as Lender may reasonably request
and separately identifying the payables owing for Inventory in transit from
Apple Computer to Borrowers), which certificates shall be in form reasonably
satisfactory to Lender, in which case, for a period of five (5) Business Days
after Lender's receipt and satisfactory review of such certificates, the total
sum available hereunder based upon such in-transit Eligible Inventory shall
not exceed Ten Million Dollars ($10,000,000);"
(g) Inventory Subline. Section 2.1(a)(ii)(B) of the Loan Agreement is hereby amended and restated to read
in its entirety as follows:
"(B) Forty Million Dollars ($40,000,000), provided, that, such
amount shall be reduced to (1) Thirty Million Dollars ($30,000,000) if the
turn of Borrowers' Inventory is slower than twenty-five (25) days but not
slower than thirty (30) days, as determined by Lender on a rolling six (6)
month basis in accordance with Exhibit B attached hereto as the product of
three hundred sixty (360) times the quotient of the average total Value of
Inventory, divided by the cost of all Inventory sold, and (2) Twenty Million
Dollars ($20,000,000) if such turn of Borrowers' Inventory is slower than
thirty (30) days, and provided further, that, if Borrowers do not provide
Lender, on or before the tenth (10th) Business Day of any month, with a
certificate (in form satisfactory to Lender) that such turn of Borrowers'
Inventory was not slower than a specified number of days during the six (6)
months ending on the last day of the immediately preceding month, then such
amount shall be reduced to Twenty Million Dollars ($20,000,000), minus"
(h) Subline on Letters of Credit for Purchasing Eligible Inventory. The proviso in the first sentence of
Section 2.2(e) of the Loan Agreement is hereby amended and restated to read in its entirety as follows:
"provided, that, if the sublimit on Revolving Loans based upon
Eligible Inventory pursuant to Section 2.1(a)(ii)(B) is reduced to a lesser
amount, the amount of all Letter of Credit Accommodations for the purpose of
purchasing Eligible Inventory and all other commitments and obligations made
or incurred by Lender in connection therewith shall not exceed such lesser
amount."
(i) Term Loan. With respect to Section 2.3 of the Loan Agreement, the outstanding principal amount of the
Term Loan shall be increased to Two Million Dollars ($2,000,000) and shall be evidenced and repaid in accordance
with a Third Amended and Restated Term Promissory Note in the form of Exhibit A attached hereto and incorporated
herein by reference (the "Third Amended Note").
(j) Eurodollar Rate Loans. Clause (vi) of Section 3.1(b) is hereby amended and restated to read in its
entirety as follows:
"(vi) the maximum amount of the Eurodollar Rate Loans at any time
requested by Borrowers shall not exceed the amount equal to eighty-five
percent (85%) of the lowest principal amount of the Loans which it is
anticipated will be outstanding during the applicable Interest Period, in each
case as determined by Lender (but with no obligation of Lender to make such
Loans) and"
(k) Loan Servicing Fee. Section 3.3 of the Loan Agreement is hereby amended and restated to read in its
entirety as follows:
"3.3 Loan Servicing Fee. Borrowers shall pay to Lender a monthly
loan servicing fee in an amount equal to One Thousand Five Hundred Dollars
($1,500), plus out-of-pocket costs and expenses, in respect of Lender's
services while this Agreement remains in effect and for so long thereafter as
any of the Obligations are outstanding, which fee shall be payable on a
monthly basis, in advance, on the first day of each month."
(l) Clearance Days. Section 6.3(b) of the Loan Agreement is hereby amended and restated to read in its
entirety as follows:
"(b) For purposes of calculating interest on the Obligations,
such payments or other funds received will be applied (conditional upon final
collection) to the Obligations one-half of one (1/2) Business Day following
the date of receipt of immediately available funds by Lender in the Payment
Account (such that Borrowers will pay a charge equal to one-half (1/2) of the
additional interest that would have accrued on the sum of such payments or
other funds if the sum was applied to the Obligations one (1) Business Day
after receipt of immediately available funds by Lender in the Payment
Account). For purposes of calculating the amount of the Revolving Loans
available to Borrowers such payments will be applied (conditional upon final
collection) to the Obligations on the Business Day of receipt by Lender in the
Payment Account, if such payments are received within sufficient time (in
accordance with Lender's usual and customary practices as in effect from time
to time) to credit Borrowers' loan account on such day, and if not, then on
the next Business Day. In the event that at any time or from time to time
there are no Revolving Loans outstanding, Lender shall be entitled to an
administrative charge in an amount equivalent to the interest Lender would
have received on account of the above one-half of one (1/2) Business Day
clearance had there been Revolving Loans outstanding."
(m) Collateral Reporting. Section 7.1 of the Loan Agreement is hereby amended and restated to read in its
entirety as follows:
"7.1 Collateral Reporting. Borrowers shall provide Lender with
the following documents in a form satisfactory to Lender: (a) on a weekly
basis, (i) schedules of sales made, credits issued and cash received, which,
after the occurrence of an Event of Default or the filing of a bankruptcy
petition by or against any Borrower, and for so long as such Event of Default
is continuing or such bankruptcy petition has not been dismissed, shall
separately account for sales of Inventory subject to the security interest of
IBM Credit Corporation, (ii) borrowing base certificates, (iii) schedules of
Inventory (net of fixed assets) separately identifying Inventory by vendor,
type, location and age, with perpetual inventory reports identifying
"Qualified Merchandise" (as defined in the DFS Intercreditor Agreement), and
(iv) schedules of accounts payable and accrued accounts payable to any vendor
holding a security interest in any property of the Borrowers; (b) on a monthly
basis, on or before the tenth (10th) Business Day of such month for the
immediately preceding month or more frequently as Lender may request, (i)
agings of accounts receivable, (ii) agings of accounts payable, accrued
accounts payable, lease payables and other payables, and (iii) a certificate
from an authorized officer of Borrowers representing that each Borrower has
made payment of sales and use taxes during such month or, at Lender's request,
other evidence of such payment; (c) upon Lender's request, (i) copies of
customer statements and credit memos, remittance advices and reports, and
copies of deposit slips and bank statements, (ii) copies of shipping and
delivery documents, and (iii) copies of purchase orders, invoices and delivery
documents for Inventory and Equipment acquired by Borrowers; and (d) such
other reports as to the Collateral or other property which is security for the
Obligations as Lender shall request from time to time. Borrowers shall
provide Lender, as soon as available, but in any event not later than five (5)
days after receipt by Borrowers, with all statements received from Apple
Computer and any other vendor who may hold a security interest in any
Borrower's assets, together with such additional information as shall be
sufficient to enable Lender to monitor the accounts payable and accrued
accounts payable to them. If any of Borrowers' records or reports of the
Collateral or other property which is security for the Obligations are
prepared or maintained by an accounting service, contractor, shipper or other
agent, Borrowers hereby irrevocably authorize such service, contractor,
shipper or agent to deliver such records, reports, and related documents to
Lender and to follow Lender's instructions with respect to further services at
any time that an Event of Default exists or has occurred and is continuing."
(n) Inventory Appraisals. Section 7.3(d) of the Loan Agreement is hereby amended and restated to read in
its entirety as follows:
"(d) upon Lender's request, Borrowers shall, at their expense, no
more than three (3) times in any twelve (12) month period as to desktop
appraisals, and no more than one (1) time in any twelve (12) month period as
to full appraisals, but at any time or times as Lender may request upon the
occurrence and during the continuance of an Event of Default, deliver or cause
to be delivered to Lender written reports or appraisals as to the Inventory in
form, scope and methodology acceptable to Lender and addressing such issues as
Lender may require in its commercially reasonable judgment, issued by an
appraiser acceptable to Lender, and addressed to Lender or upon which Lender
is expressly permitted to rely (with the understanding that Lender may revise
the definition of 'Eligible Inventory' hereunder or establish Availability
Reserves as Lender may deem advisable in its sole discretion based upon the
results of such updated appraisals);"
(o) Audits. Section 7.7 of the Loan Agreement is hereby amended and restated to read in its entirety as
follows:
"7.7 Access to Premises. From time to time as requested by
Lender, at the cost and expense of Borrowers, no more than three (3) times in
any twelve (12) month period, but at any time or times as Lender may request
upon the occurrence and during the continuance of an Event of Default, (a)
Lender or its designee shall have complete access to all of Borrowers'
premises during normal business hours and after two (2) Business Days prior
notice to Borrowers, or at any time and without notice to Borrowers if an
Event of Default exists or has occurred and is continuing, for the purposes of
inspecting, verifying and auditing the Collateral and all of Borrowers' books
and records, including, without limitation, the Records, and (b) Borrowers
shall promptly furnish to Lender such copies of such books and records or
extracts therefrom as Lender may reasonably request, and (c) Lender may use
during normal business hours such of Borrowers' personnel, equipment, supplies
and premises as may be reasonably necessary for the foregoing and if an Event
of Default exists or has occurred and is continuing for the collection of
Accounts or Credit Card/Check Processing Receivables and realization of other
Collateral."
(p) Financial Statements. Section 9.6(a) of the Loan Agreement is hereby amended and restated to read in
its entirety as follows:
"(a) Borrowers shall keep proper books and records in which true
and complete entries shall be made of all dealings or transactions of or in
relation to the Collateral and the business of Borrowers and their
subsidiaries (if any) in accordance with GAAP and Borrowers shall furnish or
cause to be furnished to Lender: (i) on or before the earlier of the
forty-fifth (45th) day after the end of each fiscal month or, for any fiscal
month ending on the last day of a fiscal quarter, the date on which Borrowers
file their Form 10Q with the Securities and Exchange Commission for such
fiscal quarter, monthly unaudited internally prepared consolidated and
consolidating financial statements (including in each case balance sheets,
statements of income and loss, statements of cash flow and statements of
shareholders' equity) as of the end of and through such fiscal month, all in
reasonable detail, which financial statements shall be prepared honestly and
in good faith (provided that where such fiscal month does not end on the last
day of a fiscal quarter, Lender understands that such financial statements are
based upon information available at the time of preparation of such financial
statements and may therefore not be accurate or complete), and where such
fiscal month ends on the last day of a fiscal quarter, shall fairly present
the financial position and the results of the operations of Borrowers and
their subsidiaries, provided, that, if the average daily Excess Availability
during any fiscal quarter (as determined on the dates on which Lender approves
the weekly borrowing base certificates provided pursuant to clause (a) of
Section 7.1 hereof) is not less than Ten Million Dollars ($10,000,000) and so
long as no Event of Default has occurred and is continuing, then during the
immediately following fiscal quarter, such financial statements may be
provided on a fiscal quarter basis on or before the earlier of the forty-fifth
(45th) day after the end of such fiscal quarter or the date on which
Borrowers file their Form 10Q with the Securities and Exchange Commission for
such fiscal quarter, and (ii) within ninety (90) days after the end of each
fiscal year, audited consolidated and consolidating financial statements of
Borrowers and their subsidiaries (including in each case balance sheets,
statements of income and loss, statements of cash flow and statements of
shareholders' equity), and the accompanying notes thereto, all in reasonable
detail, fairly presenting the financial position and the results of the
operations of Borrowers and their subsidiaries as of the end of and for such
fiscal year, together with the opinion of independent certified public
accountants, which accountants shall be an independent accounting firm
selected by Borrowers and reasonably acceptable to Lender, that such financial
statements have been prepared in accordance with GAAP, and present fairly the
results of operations and financial condition of Borrowers and their
subsidiaries as of the end of and for the fiscal year then ended."
(q) Merger and Consolidation. Clause (a) of Section 9.7 of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
"(a) merge into or with or consolidate with any other Person or
permit any other Person to merge into or with or consolidate with it,
provided, that any Borrower may merge into or with or consolidate with any
other Borrower upon not less than twenty (20) days prior written notice to
Lender,"
(r) Indebtedness. A new Section 9.9(g) is hereby added to the Loan Agreement as follows:
"(g) indebtedness to the Canadian federal government and any
Canadian provincial government in an aggregate sum not to exceed Two Million
Dollars ($2,000,000) (Canadian) on account of advances made by the Canadian
federal government and Canadian provincial governments against rebates payable
by them to Borrowers."
(s) Acquisitions and Guarantees. Section 9.10(d)(ii), (v) and (xiv) and 9.10(e) of the Loan Agreement are
hereby amended and restated to read in their entirety as follows:
"(ii) The aggregate sum of (A) the purchase price for the subject
Target and any related Targets plus any other consideration payable in
connection with the sale of the Target and any related Targets, excluding any
earn-outs and similar contingent payments, excluding any obligations or
indebtedness of the Target that are assumed (as permitted by Section 9.9
hereof) and excluding any capital stock of PC Mall (the "Total Consideration")
or the amount of the subject Subsidiary Investments (as applicable), plus
(B)the aggregate sum of the Total Considerations for all Targets previously
acquired by Borrowers (excluding Pacific Business Systems, Inc. and Wareforce
Incorporated) plus all Subsidiary Investments previously made by Borrowers,
shall not exceed Fifty Million Dollars ($50,000,000) during the term of this
Agreement and Twenty Million Dollars ($20,000,000) during any fiscal year;"
"(v) Any portion of the Total Consideration (excluding any
earn-outs and similar contingent payments) that is not payable on the closing
of the acquisition of the subject Target shall, to the extent a Borrower is
obligated to make payment thereof, be subordinated in a manner satisfactory to
Lender or, at Borrowers' option, Lender may establish an Availability Reserve
for such portion of the Total Consideration;"
"(xiv) The chief executive office and jurisdiction of organization
of the subject Target or New Subsidiary (as applicable) shall be in the United
State or Canada, and in any event, only those Accounts generated and invoiced
from the United States or Canada and that Inventory located in the United
States or Canada may be deemed Eligible Accounts or Eligible Inventory."
"(e) any Borrower may make loans or advances to, or investments
in, another Borrower, and may guaranty, assume, endorse or otherwise become
responsible for the indebtedness or obligations of another Borrower; and"
(t) Stock Repurchases. Clause (a) of Section 9.11 of the Loan Agreement is hereby amended and restated to
read in its entirety as follows:
"(a) the aggregate sum of all payments made on account of such
repurchases shall not exceed Ten Million Dollars ($10,000,000) during the term
of this Agreement,"
(u) Events of Default. Sections 10.1(a), (d), (i) and (l) of the Loan Agreement are hereby amended and
restated to read in their entirety as follows:
"(a) (i) Borrowers fail to pay any of the Obligations within two
(2) Business Days after the same become due and payable or (ii) any Borrower
or any Obligor fails to perform any of the covenants contained in this
Agreement or the other Financing Agreements and such failure shall continue
for thirty (30) days; provided, that, such thirty (30) day period shall not
apply in the case of (A) any failure to observe any such covenant which is not
capable of being cured at all or within such thirty (30) day period or which
has been the subject of a prior failure within the preceding four (4) month
period or (B) any failure by Borrowers to pursue a cure diligently and
promptly during such thirty (30) day period or (iii) any Borrower fails to
perform any of the terms, covenants, conditions or provisions contained in
this Agreement or any of the other Financing Agreements other than those
described in Sections 10.1(a)(i) and 10.1(a)(ii) above;"
"(d) any judgment for the payment of money (excluding any such
judgment fully covered by insurance) is rendered against any of Borrowers or
Obligors in excess of Five Hundred Thousand Dollars ($500,000) in any one case
or in excess of One Million Dollars ($1,000,000) in the aggregate and shall
remain undischarged or unvacated for a period in excess of thirty (30) days or
execution shall at any time not be effectively stayed, or any material
judgment other than for the payment of money, or injunction, attachment,
garnishment or execution is rendered against any of Borrowers or Obligors or
any of their assets;"
"(i) any default by any Borrower or any Obligor under any
agreement, document or instrument relating to any indebtedness for borrowed
money or secured indebtedness owing to any person other than Lender (including
without limitation DFS), or any capitalized lease obligations, contingent
indebtedness in connection with any guarantee, letter of credit, indemnity or
similar type of instrument in favor of any person other than Lender, in excess
of One Million Dollars ($1,000,000) in the aggregate, which default continues
for more than the applicable cure period, if any, with respect thereto, or any
default by any Borrower or any Obligor under any material contract, lease,
license or other obligation to any person other than Lender, which default
continues for more than the applicable cure period, if any, with respect
thereto, unless (in each case and without limiting Lender's rights to
establish Availability Reserves for any such defaults) such defaults are being
contested in good faith by appropriate proceedings diligently pursued;"
"(l) there shall be a material adverse change in the business or
assets of Borrowers taken as a whole or any Obligor after the date hereof; or"
(v) Term. The first sentence of Section 12.1(a) of the Loan Agreement is hereby amended and restated to
read in its entirety as follows:
"This Agreement and the other Financing Agreements shall become effective as
of the date set forth on the first page hereof and shall continue in full
force and effect for a term ending on March 7, 2007 (the "Renewal Date"), and
from year to year thereafter, unless sooner terminated pursuant to the terms
hereof."
(w) Early Termination Fee. Clauses (i), (ii) and (iii) of Section 12.1(c) of the Loan Agreement are hereby
amended and restated to read in their entirety as follows:
"Amount Period
(i) 0.25% of the Maximum Credit to and including Xxxxx 0, 0000
(xx) 0.125% of the Maximum Credit after March 7, 2006 to and including September 7, 2006
(iii) -$0- after September 7, 2006"
2. Effectiveness of this Amendment. Lender must have received the following items, in form and content
acceptable to Lender, before this Amendment is effective.
(a) This Amendment fully executed in a sufficient number of counterparts for distribution to all parties.
(b) The Third Amended Note duly executed and delivered by Borrowers.
(c) A renewal fee in the amount of Three Hundred Thousand Dollars ($300,000) which shall be fully earned and
due and payable on the date hereof.
(d) Consents duly executed and delivered by LaSalle Business Credit, LLC and Fleet Capital Business Finance
Division as Participants.
(e) All other documents and legal matters in connection with the transactions contemplated by this Amendment
shall have been delivered or executed or recorded and shall be in form and substance satisfactory to Lender.
3. Representations and Warranties. Each Borrower represents and warrants as follows:
(a) Authority. Such Borrower has the requisite corporate power and authority to execute and deliver this
Amendment, and to perform its obligations hereunder and under the Financing Agreements (as amended or modified
hereby) to which it is a party. The execution, delivery and performance by such Borrower of this Amendment have
been duly approved by all necessary corporate action and no other corporate proceedings are necessary to
consummate such transactions.
(b) Enforceability. This Amendment has been duly executed and delivered by such Borrower. This Amendment
and each Financing Agreement (as amended or modified hereby) is the legal, valid and binding obligation of such
Borrower, enforceable against such Borrower in accordance with its terms, and is in full force and effect.
(c) Representations and Warranties. The representations and warranties contained in each Financing
Agreement (other than any such representations or warranties that, by their terms, are specifically made as of a
date other than the date hereof) are correct on and as of the date hereof as though made on and as of the date
hereof.
(d) Due Execution. The execution, delivery and performance of this Amendment are within the power of such
Borrower, have been duly authorized by all necessary corporate action, have received all necessary governmental
approval, if any, and do not contravene any law or any contractual restrictions binding on such Borrower.
(e) No Default. No event has occurred and is continuing that constitutes an Event of Default.
4. Choice of Law. The validity of this Amendment, its construction, interpretation and enforcement, the
rights of the parties hereunder, shall be determined under, governed by, and construed in accordance with the
internal laws of the State of California governing contracts only to be performed in that State.
5. Counterparts. This Amendment may be executed in any number of counterparts and by different parties and
separate counterparts, each of which when so executed and delivered, shall be deemed an original, and all of
which, when taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of
a signature page to this Amendment by telefacsimile shall be effective as delivery of a manually executed
counterpart of this Amendment.
6. Reference to and Effect on the Financing Agreements.
(a) Upon and after the effectiveness of this Amendment, each reference in the Loan Agreement to "this
Agreement", "hereunder", "hereof" or words of like import referring to the Loan Agreement, and each reference in
the other Financing Agreements to "the Loan Agreement", "thereof" or words of like import referring to the Loan
Agreement, shall mean and be a reference to the Loan Agreement as modified and amended hereby.
(b) Except as specifically provided above, the Loan Agreement and all other Financing Agreements, are and
shall continue to be in full force and effect and are hereby in all respects ratified and confirmed and shall
constitute the legal, valid, binding and enforceable obligations of Borrowers to Lender.
(c) The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right,
power or remedy of Lender under any of the Financing Agreements, nor constitute a waiver of any provision of any
of the Financing Agreements.
(d) To the extent that any terms and conditions in any of the Financing Agreements shall contradict or be in
conflict with any terms or conditions of the Loan Agreement, after giving effect to this Amendment, such terms
and conditions are hereby deemed modified or amended accordingly to reflect the terms and conditions of the Loan
Agreement as modified or amended hereby.
7. Ratification. Each Borrower hereby restates, ratifies and reaffirms each and every term and condition
set forth in the Loan Agreement, as amended hereby, and the other Financing Agreements effective as of the date
hereof.
IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above written.
LENDER: BORROWERS:
CONGRESS FINANCIAL PC MALL, INC.
CORPORATION (WESTERN)
By:/s/Xxxx Xxxxxxxxx By:/s/Xxxxx Xxxxxxx
Name:Xxxx Xxxxxxxxx Name: Xxxxx Xxxxxxx
Title: Vice President Title: President
PC MALL SALES, INC.
By:/s/Xxxx Xxxx
Name: Xxxx Xxxx
Title: President
XXXXX.XXX, INC.
By:/s/Xxxx Xxx
Name: Xxxx Xxx
Title: President
XXXXXX.XXX, INC.
By:/s/Xxx XxXxxxx
Name: Xxx Xxxxxxx
Title: President
CCIT, INC.
By:/s/Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: President
WF ACQUISITION SUB, INC.
By:/s/Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title:President
COMPUTABILITY LIMITED
By:/s/Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: President
AF SERVICES, INC.
By:/s/Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: President
PC MALL GOV, INC.
By:/s/Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title:President
CLUBMAC, INC.
By:/s/Xxxx XxXxxxx
Name:Xxxx XxXxxxx
Title:President
ONSALE, INC.
By:/s/Xxx Xxxxxxx
Name:Xxx Xxxxxxx
Title:President
AV ACQUISITION, INC.
By:/s/Xxxxx Xxxxxxx
Name:Xxxxx Xxxxxxx
Title:President
MALL ACQUISITION 1, INC.
By:/s/Xxxxx Xxxxxxx
Name:Xxxxx Xxxxxxx
Title:President
MALL ACQUISITION 2, INC.
By:/s/Xxxxx Xxxxxxx
Name:Xxxxx Xxxxxxx
Title:President
EXHIBIT A
20
EXHIBIT A
THIRD
AMENDED AND RESTATED
TERM PROMISSORY NOTE
$2,000,000 Pasadena, California
March __, 2003
FOR VALUE RECEIVED, PC MALL, INC., a Delaware corporation formerly known as IdeaMall, Inc., PC MALL SALES, INC.,
a California corporation formerly known as Creative Computers, Inc., CCIT, INC., a Delaware corporation formerly
known as Creative Computers Integrated Technologies, Inc., XXXXX.XXX, INC., a Delaware corporation, XXXXXX.XXX,
INC., a Delaware corporation, COMPUTABILITY LIMITED, a Delaware corporation, WF ACQUISITION SUB, INC., a Delaware
corporation, AF SERVICES, INC., a Delaware corporation, PC MALL GOV, INC., a Delaware corporation, CLUBMAC, INC.,
a Delaware corporation ONSALE, INC., a Delaware corporation, AV ACQUISITION, INC., a Delaware corporation, MALL
ACQUISITION 1, INC., a Delaware corporation, and MALL ACQUISITION 2, INC., a Delaware corporation (each a
"Debtor" and collectively, "Debtors"), hereby jointly, severally and unconditionally promise to pay to the order
of CONGRESS FINANCIAL CORPORATION (WESTERN), a California corporation (the "Payee"), at the offices of Payee at
000 Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000, or at such other place as the Payee or any holder
hereof may from time to time designate, the principal sum of TWO MILLION DOLLARS ($2,000,000) in lawful money of
the United States of America and in immediately available funds, in twenty-four (24) consecutive monthly
installments (or earlier as hereinafter provided) on the first day of each month commencing April 1, 2003 of
which the first twenty-three (23) installments shall each be in the amount of EIGHTY-THREE THOUSAND THREE HUNDRED
THIRTY-THREE AND 33/100 DOLLARS ($83,333.33), and the last installment shall be in the amount of the entire
unpaid balance of this Note.
Debtors hereby further jointly and severally promise to pay interest to the order of Payee on the unpaid
principal balance hereof as set forth in Section 3.1 of that certain Loan and Security Agreement dated March 7,
2001 between the Debtors and the Payee, as it has been or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced. Unless otherwise defined herein, all capitalized terms used herein
shall have the meaning assigned thereto in the Loan Agreement. Such interest shall be paid in like money at said
office or place from the date hereof, commencing April 1, 2003 and on the first day of each month thereafter
until the indebtedness evidenced by this Note is paid in full. Interest payable upon and after an Event of
Default or termination or non-renewal of the Loan Agreement shall be payable upon demand.
This Note is issued pursuant to the terms and provisions of the Loan Agreement to evidence the Term Loan by Payee
to Debtors, and is subject to all such terms and provisions, including without limitation the acceleration
provisions set forth in Section 2.3 of the Loan Agreement. This Note is secured by the Collateral described in
the Loan Agreement and all notes, guarantees, security agreements and other agreements, documents and instrument
now or at any time hereafter executed and/or delivered by any Debtor or any other party in connection therewith
(all of the foregoing, together with the Loan Agreement, as the same now exist or may hereafter be amended,
modified, supplemented, renewed, extended, restated or replaced, being collectively referred to herein as the
"Financing Agreements"), and is entitled to all of the benefits and rights thereof and of the other Financing
Agreements. At the time any payment is due hereunder, at its option, Payee may charge the amount thereof to any
account of any Debtor maintained by Payee.
If any payment of principal or interest is not made when due hereunder, or if any other Event of Default shall
occur for any reason, or if the Loan Agreement shall be terminated or not renewed for any reason whatsoever, then
and in any such event, in addition to all rights and remedies of Payee under the Financing Agreements, applicable
law or otherwise, all such rights and remedies being cumulative, not exclusive and enforceable alternatively,
successively and concurrently, Payee may, at its option, declare any or all of any Debtor's obligations,
liabilities and indebtedness owing to Payee under the Loan Agreement and the other Financing Agreements (the
"Obligations"), including, without limitation, all amounts owing under this Note, to be due and payable, whereupon
the then unpaid balance hereof, together with all interest accrued thereon, shall forthwith become due and
payable, together with interest accruing thereafter at the then applicable rate set forth in the Loan Agreement
until the indebtedness evidenced by this Note is paid in full, plus the costs and expenses of collection hereof,
including, but not limited to, attorneys' fees and legal expenses.
Each Debtor (i) waives diligence, demand, presentment, protest and notice of any kind, (ii) agrees that it will
not be necessary for Payee to first institute suit in order to enforce payment of this Note and (iii) consents
to any one or more extensions or postponements of time of payment, release, surrender or substitution of
collateral security, or forbearance or other indulgence, without notice or consent. The pleading of any statute
of limitations as a defense to any demand against any Debtor is expressly hereby waived by each Debtor. Upon any
Event of Default or termination or non-renewal of the Loan Agreement, Payee shall have the right, but not the
obligation to setoff against this Note all money owed by Payee to any Debtor.
Payee shall not be required to resort to any Collateral for payment, but may proceed against any Debtor and any
guarantors or endorsers hereof in such order and manner as Payee may choose. None of the rights of Payee shall
be waived or diminished by any failure or delay in the exercise thereof.
The validity, interpretation and enforcement of this Note and the other Financing Agreements and any dispute
arising in connection herewith or therewith shall be governed by the internal laws of the State of California
(without giving effect to principles of conflicts of law).
Each Debtor irrevocably consents and submits to the non-exclusive jurisdiction of the Courts of the State of
California and the United States District Court for the Central District of California and waives any objection
based on venue or forum non conveniens with respect to any action instituted therein arising under this Note or
any of the other Financing Agreements or in any way connected with or related or incidental to the dealings of
any Debtor and Payee in respect of this Note or any of the other Financing Agreements or the transactions related
hereto or thereto, in each case whether now existing or hereafter arising, and whether in contract, tort, equity
or otherwise, and agrees that any dispute arising out of the relationship between any Debtor and Payee or the
conduct of such persons in connection with this Note or otherwise shall be heard only in the courts described
above (except that Payee shall have the right to bring any action or proceeding against any Debtor or its
property in the courts of any other jurisdiction which Payee deems necessary or appropriate in order to realize
on the Collateral or to otherwise enforce its rights against such Debtor or its property).
Each Debtor hereby waives personal service of any and all process upon it and consents that all such service of
process may be made by certified mail (return receipt requested) directed to it and service so made shall be
deemed to be completed five (5) days after the same shall have been so deposited in the U.S. mails, or, at
Payee's option, by service upon such Debtor in any other manner provided under the rules of any such courts.
Within thirty (30) days after such service, each Debtor shall appear in answer to such process, failing which
each Debtor shall be deemed in default and judgment may be entered by Payee against each Debtor for the amount of
the claim and other relief requested.
EACH DEBTOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING
UNDER THIS NOTE OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS BETWEEN ANY DEBTOR AND
PAYEE IN RESPECT OF THIS NOTE OR ANY OF THE OTHER FINANCING AGREEMENTS OR THE TRANSACTIONS RELATED HERETO OR
THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR
OTHERWISE. EACH DEBTOR AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY.
The execution and delivery of this Note has been authorized by the Board of Directors and by any necessary vote
or consent of the stockholders of each Debtor. Each Debtor hereby authorizes Payee to complete this Note in any
particulars according to the terms of the loan evidenced hereby.
This Note shall be binding upon the successors and assigns of each Debtor and inure to the benefit of Payee and
its successors, endorsees and assigns. Whenever used herein, the term "Debtor" shall be deemed to include its
successors and assigns and the term "Payee" shall be deemed to include its successors, endorsees and assigns. If
any term or provision of this Note shall be held invalid, illegal or unenforceable, the validity of all other
terms and provisions hereof shall in no way be affected thereby.
Without limiting Payee's right to charge an early termination fee to the extent provided in Section 12.1(c) of
the Loan Agreement in connection with any termination of the Loan Agreement prior to the end of the current term
or any renewal term thereof, this Note may be prepaid at any time without premium or penalty.
;
This Note shall amend and restate that certain Second Amended and Restated Term Promissory Note dated October 31,
2002 executed by Debtors to the order of Payee for the original principal sum of $416,666.73, in its entirety.
ATTEST: PC MALL, INC.,
a Delaware corporation
By:
Secretary Name:
Title:
[Corporate Seal]
ATTEST: PC MALL SALES, INC.,
a California corporation
By:
Secretary Name:
Title:
[Corporate Seal]
ATTEST: CCIT, INC.,
a Delaware corporation
By:
Secretary Name:
Title:
[Corporate Seal]
ATTEST: XXXXX.XXX, INC.,
a Delaware corporation
By:
Secretary Name:
Title:
[Corporate Seal]
ATTEST: XXXXXX.XXX, INC.,
a Delaware corporation
By:
Secretary Name:
Title:
[Corporate Seal]
;
ATTEST: COMPUTABILITY LIMITED,
a Delaware corporation
By:
Secretary Name:
Title:
[Corporate Seal]
ATTEST: WF ACQUISITION SUB, INC.,
a Delaware corporation
By:
Secretary Name:
Title:
[Corporate Seal]
ATTEST: AF SERVICES, INC.,
a Delaware corporation
By:
Secretary Name:
Title:
[Corporate Seal]
ATTEST: PC MALL GOV, INC.,
a Delaware corporation
By:
Secretary Name:
Title:
[Corporate Seal]
ATTEST: CLUBMAC, INC.,
a Delaware corporation
By:
Secretary Name:
Title:
[Corporate Seal]
ATTEST: ONSALE, INC.,
a Delaware corporation
By:
Secretary Name:
Title:
[Corporate Seal]
;
ATTEST: AV ACQUISITION, INC.,
a Delaware corporation
By:
Secretary Name:
Title:
[Corporate Seal]
ATTEST: MALL ACQUISITION 1, INC.,
a Delaware corporation
By:
Secretary Name:
Title:
[Corporate Seal]
ATTEST: MALL ACQUISITION 2, INC.,
a Delaware corporation
By:
Secretary Name:
Title:
[Corporate Seal]
6
________________________________________________________________________________________________________________
THIRD
AMENDED AND RESTATED
TERM PROMISSORY NOTE
$2,000,000 Pasadena, California
March __, 2003
FOR VALUE RECEIVED, PC MALL, INC., a Delaware corporation formerly known as IdeaMall, Inc., PC
MALL SALES, INC., a California corporation formerly known as Creative Computers, Inc., CCIT, INC., a Delaware
corporation formerly known as Creative Computers Integrated Technologies, Inc., XXXXX.XXX, INC., a Delaware
corporation, XXXXXX.XXX, INC., a Delaware corporation, COMPUTABILITY LIMITED, a Delaware corporation, WF
ACQUISITION SUB, INC., a Delaware corporation, AF SERVICES, INC., a Delaware corporation, PC MALL GOV, INC., a
Delaware corporation, CLUBMAC, INC., a Delaware corporation ONSALE, INC., a Delaware corporation, AV ACQUISITION,
INC., a Delaware corporation, MALL ACQUISITION 1, INC., a Delaware corporation, and MALL ACQUISITION 2, INC., a
Delaware corporation (each a "Debtor" and collectively, "Debtors"), hereby jointly, severally and unconditionally
promise to pay to the order of CONGRESS FINANCIAL CORPORATION (WESTERN), a California corporation (the "Payee"),
at the offices of Payee at 000 Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000, or at such other place
as the Payee or any holder hereof may from time to time designate, the principal sum of TWO MILLION DOLLARS
($2,000,000) in lawful money of the United States of America and in immediately available funds, in twenty-four
(24) consecutive monthly installments (or earlier as hereinafter provided) on the first day of each month
commencing April 1, 2003 of which the first twenty-three (23) installments shall each be in the amount of
EIGHTY-THREE THOUSAND THREE HUNDRED THIRTY-THREE AND 33/100 DOLLARS ($83,333.33), and the last installment shall
be in the amount of the entire unpaid balance of this Note.
Debtors hereby further jointly and severally promise to pay interest to the order of Payee on
the unpaid principal balance hereof as set forth in Section 3.1 of that certain Loan and Security Agreement dated
March 7, 2001 between the Debtors and the Payee, as it has been or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced. Unless otherwise defined herein, all capitalized terms
used herein shall have the meaning assigned thereto in the Loan Agreement. Such interest shall be paid in like
money at said office or place from the date hereof, commencing April 1, 2003 and on the first day of each month
thereafter until the indebtedness evidenced by this Note is paid in full. Interest payable upon and after an
Event of Default or termination or non-renewal of the Loan Agreement shall be payable upon demand.
This Note is issued pursuant to the terms and provisions of the Loan Agreement to evidence the
Term Loan by Payee to Debtors, and is subject to all such terms and provisions, including without limitation the
acceleration provisions set forth in Section 2.3 of the Loan Agreement. This Note is secured by the Collateral
described in the Loan Agreement and all notes, guarantees, security agreements and other agreements, documents
and instrument now or at any time hereafter executed and/or delivered by any Debtor or any other party in
connection therewith (all of the foregoing, together with the Loan Agreement, as the same now exist or may
hereafter be amended, modified, supplemented, renewed, extended, restated or replaced, being collectively
referred to herein as the "Financing Agreements"), and is entitled to all of the benefits and rights thereof and
of the other Financing Agreements. At the time any payment is due hereunder, at its option, Payee may charge the
amount thereof to any account of any Debtor maintained by Payee.
If any payment of principal or interest is not made when due hereunder, or if any other Event
of Default shall occur for any reason, or if the Loan Agreement shall be terminated or not renewed for any reason
whatsoever, then and in any such event, in addition to all rights and remedies of Payee under the Financing
Agreements, applicable law or otherwise, all such rights and remedies being cumulative, not exclusive and
enforceable alternatively, successively and concurrently, Payee may, at its option, declare any or all of any
Debtor's obligations, liabilities and indebtedness owing to Payee under the Loan Agreement and the other
Financing Agreements (the "Obligations"), including, without limitation, all amounts owing under this Note, to be
due and payable, whereupon the then unpaid balance hereof, together with all interest accrued thereon, shall
forthwith become due and payable, together with interest accruing thereafter at the then applicable rate set
forth in the Loan Agreement until the indebtedness evidenced by this Note is paid in full, plus the costs and
expenses of collection hereof, including, but not limited to, attorneys' fees and legal expenses.
Each Debtor (i) waives diligence, demand, presentment, protest and notice of any kind, (ii)
agrees that it will not be necessary for Payee to first institute suit in order to enforce payment of this Note
and (iii) consents to any one or more extensions or postponements of time of payment, release, surrender or
substitution of collateral security, or forbearance or other indulgence, without notice or consent. The pleading
of any statute of limitations as a defense to any demand against any Debtor is expressly hereby waived by each
Debtor. Upon any Event of Default or termination or non-renewal of the Loan Agreement, Payee shall have the
right, but not the obligation to setoff against this Note all money owed by Payee to any Debtor.
Payee shall not be required to resort to any Collateral for payment, but may proceed against
any Debtor and any guarantors or endorsers hereof in such order and manner as Payee may choose. None of the
rights of Payee shall be waived or diminished by any failure or delay in the exercise thereof.
The validity, interpretation and enforcement of this Note and the other Financing Agreements
and any dispute arising in connection herewith or therewith shall be governed by the internal laws of the State
of California (without giving effect to principles of conflicts of law).
Each Debtor irrevocably consents and submits to the non-exclusive jurisdiction of the Courts of
the State of California and the United States District Court for the Central District of California and waives
any objection based on venue or forum non conveniens with respect to any action instituted therein arising under
this Note or any of the other Financing Agreements or in any way connected with or related or incidental to the
dealings of any Debtor and Payee in respect of this Note or any of the other Financing Agreements or the
transactions related hereto or thereto, in each case whether now existing or hereafter arising, and whether in
contract, tort, equity or otherwise, and agrees that any dispute arising out of the relationship between any
Debtor and Payee or the conduct of such persons in connection with this Note or otherwise shall be heard only in
the courts described above (except that Payee shall have the right to bring any action or proceeding against any
Debtor or its property in the courts of any other jurisdiction which Payee deems necessary or appropriate in
order to realize on the Collateral or to otherwise enforce its rights against such Debtor or its property).
Each Debtor hereby waives personal service of any and all process upon it and consents that all
such service of process may be made by certified mail (return receipt requested) directed to it and service so
made shall be deemed to be completed five (5) days after the same shall have been so deposited in the U.S. mails,
or, at Payee's option, by service upon such Debtor in any other manner provided under the rules of any such
courts. Within thirty (30) days after such service, each Debtor shall appear in answer to such process, failing
which each Debtor shall be deemed in default and judgment may be entered by Payee against each Debtor for the
amount of the claim and other relief requested.
EACH DEBTOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION (i) ARISING UNDER THIS NOTE OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS
BETWEEN ANY DEBTOR AND PAYEE IN RESPECT OF THIS NOTE OR ANY OF THE OTHER FINANCING AGREEMENTS OR THE TRANSACTIONS
RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT,
EQUITY OR OTHERWISE. EACH DEBTOR AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY.
The execution and delivery of this Note has been authorized by the Board of Directors and by
any necessary vote or consent of the stockholders of each Debtor. Each Debtor hereby authorizes Payee to
complete this Note in any particulars according to the terms of the loan evidenced hereby.
This Note shall be binding upon the successors and assigns of each Debtor and inure to the
benefit of Payee and its successors, endorsees and assigns. Whenever used herein, the term "Debtor" shall be
deemed to include its successors and assigns and the term "Payee" shall be deemed to include its successors,
endorsees and assigns. If any term or provision of this Note shall be held invalid, illegal or unenforceable,
the validity of all other terms and provisions hereof shall in no way be affected thereby.
Without limiting Payee's right to charge an early termination fee to the extent provided in
Section 12.1(c) of the Loan Agreement in connection with any termination of the Loan Agreement prior to the end
of the current term or any renewal term thereof, this Note may be prepaid at any time without premium or penalty.
;
This Note shall amend and restate that certain Second Amended and Restated Term Promissory Note
dated October 31, 2002 executed by Debtors to the order of Payee for the original principal sum of $416,666.73,
in its entirety.
ATTEST: PC MALL, INC.,
a Delaware corporation
By:
Secretary Name:
Title:
[Corporate Seal]
ATTEST: PC MALL SALES, INC.,
a California corporation
By:
Secretary Name:
Title:
[Corporate Seal]
ATTEST: CCIT, INC.,
a Delaware corporation
By:
Secretary Name:
Title:
[Corporate Seal]
ATTEST: XXXXX.XXX, INC.,
a Delaware corporation
By:
Secretary Name:
Title:
[Corporate Seal]
ATTEST: XXXXXX.XXX, INC.,
a Delaware corporation
By:
Secretary Name:
Title:
[Corporate Seal]
;
ATTEST: COMPUTABILITY LIMITED,
a Delaware corporation
By:
Secretary Name:
Title:
[Corporate Seal]
ATTEST: WF ACQUISITION SUB, INC.,
a Delaware corporation
By:
Secretary Name:
Title:
[Corporate Seal]
ATTEST: AF SERVICES, INC.,
a Delaware corporation
By:
Secretary Name:
Title:
[Corporate Seal]
ATTEST: PC MALL GOV, INC.,
a Delaware corporation
By:
Secretary Name:
Title:
[Corporate Seal]
ATTEST: CLUBMAC, INC.,
a Delaware corporation
By:
Secretary Name:
Title:
[Corporate Seal]
ATTEST: ONSALE, INC.,
a Delaware corporation
By:
Secretary Name:
Title:
[Corporate Seal]
;
ATTEST: AV ACQUISITION, INC.,
a Delaware corporation
By:
Secretary Name:
Title:
[Corporate Seal]
ATTEST: MALL ACQUISITION 1, INC.,
a Delaware corporation
By:
Secretary Name:
Title:
[Corporate Seal]
ATTEST: MALL ACQUISITION 2, INC.,
a Delaware corporation
By:
Secretary Name:
Title:
[Corporate Seal]
