ACKNOWLEDGEMENT, WAIVER AND
AMENDMENT TO RADIUS INC.
INVENTORY AND WORKING CAPITAL FINANCING AGREEMENT
Acknowledgement, Waiver and Amendment, dated as of December 14, 1995
(this "Amendment") to the Inventory and Working Capital Financing Agreement by
and between Radius Inc., a California corporation ("Customer"), and IBM Credit
Corporation, a Delaware corporation ("IBM Credit").
RECITALS:
A. Customer and IBM Credit have entered into that certain Inventory and
Working Capital Financing Agreement dated as of February 17, 1995 (as amended,
supplemented or otherwise modified from time to time, the "Agreement").
B. Customer is in default of its obligations to IBM Credit pursuant to
the Agreement.
C. Customer has requested that IBM Credit waive such defaults.
D. IBM Credit agrees to waive certain of such defaults on the terms and
subject to the conditions set forth below.
AGREEMENT:
NOW THEREFORE, in consideration of the mutual agreements provided for
below and for other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Customer and IBM Credit hereby agree as
follows:
Section 1. DEFINITIONS. (a) References in the Agreement to "Amendment" shall
mean this Acknowledgement, Waiver and Amendment to Radius Inc. Inventory and
Working Capital Financing Agreement between Customer and IBM Credit.
(b) References in the Agreement to "Special Event of Default" shall mean the
occurrence of any of the following:
(i) the failure to comply with or observe any material term, covenant or
agreement contained in the Amendment, including, without limitation, any terms
incorporated into the Agreement by way of the Amendment;
(ii) any representation, warranty, statement, report or certificate made or
delivered by or on behalf of Customer or any of its officers, employees, or
agents to IBM Credit was false in any material respect at the time when made and
the person making such statement knew or should have known that such statement
was false;
(iii) Customer shall file a voluntary petition for bankruptcy protection,
cease to do business as a going concern, make any assignment for the benefit of
creditors, or a custodian, receiver, trustee, liquidator, administrator or
person with similar powers shall be appointed for Customer or any of its
properties, or have any of Customer's properties seized (other then the
application by Silicon Valley Bank of the proceeds of foreign accounts
receivable to Customer's obligations) or attached (except that with respect to
any property that is attached, such attachment may continue for a period not to
exceed 15 days), or take any action to authorize, or for the purpose of
effectuating, the foregoing;
(iv) Customer shall have filed against it an involuntary bankruptcy
petition and either (a) such petition shall not be dismissed within 45 days, (b)
during such 45 day period Customer shall not diligently take action to dismiss
such petition or (c) an order for relief shall have been issued in connection
with such petition;
(v) the dissolution or liquidation of Customer, or Customer shall take any
action to dissolve or liquidate Customer;
(vi) IBM Credit shall cease to have a first priority security interest in
any assets of Customer except to the extent IBM Credit shall have agreed to
subordinate such priority to Silicon Valley Bank; or
(vii) Customer willfully fails to comply with or observe any material
term, covenant or agreement contained in Sections 8.1, 8.2 and 8.3 the
Agreement; or
(viii) Customer willfully fails to notify IBM Credit of the occurrence of
a Default that could reasonably be expected to have a Material Adverse Effect.
(c) References in the Agreement to "Termination Date" shall mean March 31, 1996
or such other date as IBM Credit and Customer may agree to in writing from time
to time.
(d) All capitalized terms not otherwise defined herein shall have the
respective meanings set forth in the Agreement.
Section 2. ACKNOWLEDGEMENT BY CUSTOMER. (a) Customer acknowledges that from
and including October 10, 1995 Customer's Outstanding Advances have exceeded
Customer's Borrowing Base and that, as of the close of business on December 12,
1995, Outstanding Advances exceeded the Borrowing Base in the approximate amount
of $26,265,485. Customer acknowledges that, as a result thereof, Customer is in
default to IBM Credit under the terms of the Agreement in that Customer has
failed to repay the Outstanding Advances in an amount equal to the Shortfall
Amount.
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(b) Customer further acknowledges that as of the close of business on December
13, 1995 the principal amount of Outstanding Advances to Customer under the
Agreement was equal to $33,651,730.96. Customer agrees that Obligations of
Customer to IBM Credit under the Agreement shall be payable to IBM Credit
without counterclaim, offset or defense.
(c) Customer further acknowledges that for the period ending September 30, 1995
Customer is in default of its financial covenants contained in Attachment A to
the Agreement.
(d) Customer further acknowledges and agrees that IBM Credit provided Customer
with a temporary increase in the Line of Credit and that all amounts advanced by
IBM Credit to or on behalf of Customer constitute, and all future amounts
advanced by IBM Credit to or on behalf of Customer shall constitute, Advances
made pursuant to the Agreement, whether or not the aggregate amount of such
Advances outstanding at any one time exceeds the amount of the Line of Credit.
Section 3. WAIVER. IBM Credit hereby waives the defaults by Customer with the
terms of the Agreement (i) to the extent that on or prior to the date hereof
Customer has failed to repay the Outstanding Advances to the extent set forth in
Section 2(a) of this Amendment, (ii) to the extent that on or prior to September
30, 1995 Customer failed to comply with the financial covenants set forth in
Attachment A of the Agreement and (iii) to the extent that on or prior to the
date hereof Customer has failed to comply with any other terms of the Agreement;
PROVIDED, that as of the date hereof IBM Credit has knowledge of facts giving
rise to any such default or, if IBM Credit does not have knowledge of facts
giving rise to such default, then such default could not reasonably be expected
to have a Material Adverse Effect.
Section 4. AMENDMENT TO AGREEMENT. The Agreement is hereby amended as follows:
A. Paragraph 4.1(C) of the Agreement is hereby amended by deleting such
subsection in its entirety and substituting, in lieu thereof, the following
subsection 4.1(C):
"(C) general intangibles, including, patents, trademarks, tradenames and
copyrights;"
B. Section 7 of the Agreement is hereby amended by inserting immediately after
subsection 7.15 the following new subsections 7.16, 7.17, 7.18, 7.19, 7.20,
7.21, 7.22, 7.23, 7.24, 7.25, 7.26, 7.27 and 7.28:
"7.16. On Site Collateral Verification. Customer shall from time to time
upon the request of IBM Credit allow employees, agents and representatives
of IBM Credit access, during normal
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business hours and as often as IBM Credit may request, to the premises,
inventory, books and records of Customer or any of its Subsidiaries to
verify the Collateral and Customer's compliance with the terms of this
Agreement and to discuss the business, operations, properties and financial
and other condition of the Company or any of its Subsidiaries with such
officers and employees and agents, including without limitation, its
independent certified public accounts, as IBM Credit may from time to time
request. Customer acknowledges and agrees that IBM Credit may from time to
time discuss with Customer Solutions, IBM North America (CSM), such matters
relating to Customer's compliance and ability to comply with the terms of
this Agreement as IBM Credit may reasonably determine, including, without
limitation, the condition of product being manufactured for Customer by
Customer Solutions, IBM North America (CSM) and financed by IBM Credit.
Customer shall use reasonable efforts to obtain permission from third party
facilities where Collateral is located for IBM Credit to have access to
such facilities to inspect and verify such Collateral.
7.17. Lockbox Participation and Special Account Deposits. Without limiting
Customer's other Obligations, Customer acknowledges and reaffirms its
obligations pursuant to Section 3.4 of this Agreement and acknowledges and
reaffirms that such obligations apply to all Accounts of Customer
including, without limitation, Accounts payable by account debtors that are
not residents of the United States (including Accounts that are payable by
Xxxxxx Micro, Inc. (Canada) and Merisel Canada, Inc.) and Accounts payable
by an account debtor that is a remarketer of computer hardware and software
products whose purchases of such products from Customer have been financed
by another person who pays proceeds of such financing directly to Customer
on behalf of such account debtor. Customer agrees that if Customer
receives a remittance directly from an account obligor, then Customer shall
deposit the same into the Special Account within one Business Day of such
receipt.
7.18. Further Assurances Regarding Patents, Trademarks, Tradenames and
Copyrights. Customer shall do and cause to be done all things necessary to
preserve and keep in full force and effect all registrations of patents,
trademarks, tradenames and copyrights necessary or advisable for the
profitable conduct of its business. With respect to any federal
registration of any patent, trademark, tradename or copyright or the filing
of any application therefor, Customer promptly shall cooperate with IBM
Credit to deliver to IBM Credit a collateral assignment with respect to
each such registration and application, in form and substance satisfactory
to IBM Credit. IBM Credit shall prepare the form of collateral assignment
based upon information provided by
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Customer and upon execution by Customer IBM Credit shall file such
collateral assignment with the appropriate agency. Whenever, Customer,
either by itself or through any agent, employee, licensee or designee,
shall file an application for the registration of any patent, trademark,
tradename or copyright with the United States Patent and Trademark Office
or United States Copyright Office, Customer shall report such filing to IBM
Credit within five Business Days after the last day of the fiscal quarter
in which such filing occurs. Upon request of IBM Credit, Customer shall
execute and deliver any and all agreements, instruments, documents, and
papers, which IBM Credit shall prepare based upon information provided by
Customer, as IBM Credit may request to evidence and/or perfect IBM Credit's
security interest in any patent, trademark, tradename or copyright and the
goodwill and general intangibles relating thereto or represented thereby,
and Customer hereby constitutes IBM Credit its attorney-in-fact to execute
and file all such writings for the foregoing purposes, all acts of such
attorney being hereby ratified and confirmed; such power being coupled with
an interest is irrevocable until the Obligations are paid in full and this
Agreement is terminated. For the purposes of enabling IBM Credit to
exercise its rights and remedies under this Agreement, Customer hereby
grants to IBM Credit, to the extent assignable, an irrevocable, non-
exclusive license (exercisable without payment of royalty or other
compensation to Customer) to use, assign, license or sublicense, following
the occurrence of an Event of Default and the exercise by IBM Credit of its
rights and remedies with respect thereto, any of the Collateral consisting
of patents, trademarks, tradenames or copyrights now owned or hereafter
acquired by Customer, wherever the same may be located, including in such
license reasonable access to all media in which any of the licensed items
may be recorded or stored and to all computer programs used for the
compilation or printout thereof. Upon payment in full of all Obligations
and cancellation or termination of the Line of Credit or earlier release of
the Collateral, the license granted by Customer pursuant to the immediately
preceding sentence shall be terminated.
7.19. Proceeds of the Sale of Assets or Operations or Capital Infusion.
Customer agrees that, and shall make such arrangements and execute such
agreements, documents, instruments and papers as IBM Credit may request to
provide that, upon the consummation of any sale of assets (other than
inventory and used or obsolete equipment in the ordinary course of business
and the return of inventory located at Charlotte to vendors for credit) or
operations of Customer, including, without limitation, the contemplated
sale of Customer's Color Server Group division, and the consummation of any
equity investment, debt issue or capital infusion from any source, the
proceeds of such sale, equity investment, debt
5
issue or capital infusion, net of all reasonable and customary costs and
expenses thereof, shall be transferred directly to an account of IBM Credit
specified by IBM Credit and applied to Customer's Obligations under this
Agreement. Customer acknowledges that nothing herein shall be construed as
consent by IBM Credit to any such sale, equity investment, debt issue or
capital infusion.
7.20. Monthly Financial Statements. Without limiting Customer's other
Obligations, Customer acknowledges and reaffirms its obligations pursuant
to Section 7.1(B)(1) of this Agreement to provide certified fiscal month
Financial Statements within twenty (20) Business Days following the end of
each fiscal month.
7.21. Collateral Reconciliation Reports. Customer shall provide to IBM
Credit on each Business Day a Collateral Reconciliation Report as of the
close of business on the Business Day immediately preceding the day such
report is provided to IBM Credit. Such Collateral Reconciliation Report
shall be in form and detail satisfactory to IBM Credit and shall include
back-up documentation supporting such reconciliation in form and detail
satisfactory to IBM Credit. Such Collateral Reconciliation Report shall
reconcile the most recently preceding Collateral Reconciliation Report to
such Collateral Reconciliation Report and shall include new sales,
collections, credits issued, purchases, returns and any other item
affecting the accounts receivable or inventory balance since the prior
reconciliation. Such Collateral Reconciliation shall also include a
summary of domestic gross receivables and domestic Eligible Receivables,
foreign gross receivables and foreign eligible receivables and a summary of
gross inventory and eligible inventory by location for purposes of
determining the Overadvance Collateral Amount.
7.22. Listings and Reconciliations. Customer shall provide to IBM Credit
on or prior to December 22, 1995 a listing, in form and detail satisfactory
to IBM Credit in its reasonable discretion, of (i) all accounts maintained
by Customer containing cash or cash equivalents (ii) all funds received by
Radius, including without limitation all funds deposited into bank accounts
of Radius, from November 10, 1995 to and including December 8, 1995.
Customer shall provide on or prior to December 22, 1995 copies of all
statements received by Customer from August 31, 1995 to November 1, 1995
relating to accounts referred to in clause (i) above and a reconciliation
of account balances on August 31, 1995 to account balances on October 31,
1995. Customer shall provide to IBM Credit on or prior to December 22,
1995 a copy of all statements received by Customer for the month of
November with a reconciliation of account balances on October 31, 1995 to
November 30, 1995. Customer shall provide to IBM Credit on or
6
prior to the twentieth (20th) Business Day following each fiscal month a
copy of all statements received by Customer for such month along with a
reconcilation of account balances in such account from the preceding
statement to account balances in such account as of the date of such
statement. Customer shall provide to IBM Credit on or prior to December 22,
1995 an accounts receivable report, in form and detail satisfactory to IBM
Credit in its reasonable discretion, of pending credits, disputed accounts,
credits issued, collected funds not yet applied and outstanding accounts
receivable, in each case as of the November fiscal month end for the
following classes of accounts receivable: international accounts
receivable, finance company accounts receivable and domestic accounts
receivable. Customer shall provide to IBM Credit on or prior to December
22, 1995 an inventory report, in form and detail satisfactory to IBM Credit
in its reasonable discretion, of pending credits, credits issued, and
inventory on hand as of the November fiscal month end.
7.23. Use of Advances. Unless otherwise consented to by IBM Credit,
Customer shall use the proceeds of Advances, which shall be made in
accordance with paragraph 7.27 below, to operate its business in a cost
effective manner. Customer shall use its best efforts to minimize
discretionary uses of cash.
7.24. Price Protection Credits. Customer shall not, without IBM Credit's
prior consent, announce any program for price protection credits that could
have the effect of reducing accounts receivable in which IBM Credit has a
security interest.
7.25. Additional Reporting Requirements. Customer shall deliver to IBM
Credit, on the first Business Day of each week, a listing, in form and
detail satisfactory to IBM Credit in its reasonable discretion, as of the
Saturday immediately preceding such Business Day, of (i) Customer's
inventory, (ii) the location of such inventory and (iii) the lower of the
cost (net of any applicable credits) and the fair market value of such
inventory. Customer shall deliver to IBM Credit, on the last Business Day
of each week, a cash flow projection, in form and detail satisfactory to
IBM Credit in its reasonable discretion, for the immediately following week
and each week remaining in such fiscal quarter based upon Customer's best
estimate of minimum levels of activity for such week to support Customer's
on going business activities. Customer shall provide to IBM Credit on or
prior to December 15, 1995 draft Financial Statements for the fiscal year
ending September 30, 1995. Customer shall provide to IBM Credit on or
prior to December 15, 1995 projected quarterly Financial Statements for the
fiscal year ending September 30, 1996. Customer shall provide to IBM
Credit on the first Business Day
7
of each week, a projection, in form and detail satisfactory to IBM Credit
in its reasonable discretion, for such week of Customer's Outstanding
Advances and Customer's Borrowing Base plus Overadvance Collateral Amount.
7.26. Advances During Overadvance Period. (a) Notwithstanding any other
term or provision of this Agreement, IBM Credit and Customer agree that:
(i) during the Overadvance Period Customer shall not be in default of this
Agreement as a result of the Outstanding Advances exceeding the Borrowing
Base, and (ii) all collections from the date of this Amendment, including,
without limitation, collections of accounts receivable and the proceeds of
the contemplated sale of the Customer's Color Server Group division, shall
be remitted directly to the Special Account of Customer maintained at
Silicon Valley Bank, or in IBM Credit's discretion, directly to an account
of IBM Credit, to be applied by IBM Credit toward Outstanding Advances,
fees and interest owing by Customer. During the Overadvance Period, so
long as no Special Event of Default shall have occurred, IBM Credit shall
from time to time, upon the request of Customer, make Advances to or on
behalf of Customer in an aggregate amount up to the amount equal to the
percentages of collections set forth below, during the Overadvance Period,
of accounts receivable representing sales by Customer of inventory in the
ordinary course of business (excluding, without limitation, the proceeds of
the contemplated sale of the Customer's Color Server Group division):
Percent
-------
First $3,000,000 per week 90%
Next $500,000 per week 60%
Next $500,000 per week 40%
Additional collections 10%
per week
(b) If during any rolling four week period during the Overadvance Period
IBM Credit shall have collected pursuant to the foregoing clause (ii)
(after taking into account any Advances already made that are attributable
to collections) an amount in excess of the percentages of collections
during such four week period set forth below, IBM Credit shall from time to
time, upon the request of Customer, make an additional Advance to Customer
under the Agreement in an amount up to such excess (less the amount of any
Advances previously made pursuant to this provision):
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Percent
-------
First $12,000,000 per 10%
rolling four week period
Next $2,000,000 per 40%
rolling four week period
Next $2,000,000 per 60%
rolling four week period
Additional Collections per 90%
rolling four week period
(c) The amounts set forth above shall be applied at the end of each week
on a pro rata basis based upon the number of elapsed weeks during the first
four weeks of the Overadvance period.
For purposes of illustration:
Applicable Remit to Remit to
Collections Customer IBM Credit
----------- -------- ----------
Week 1 $4,000,000 $3,200,000 $800,000
Week 2 $3,400,000 $2,940,000 $460,000
Week 3 $5,000,000 $3,300,000 $1,700,000
Week 4 $2,000,000 $1,800,000 $200,000
Week 5 $6,000,000 $3,400,000 $2,600,000
Weeks 1-4 Total $14,400,000 $11,240,000 $3,160,000
Weeks 2-5 Total $16,400,000 $11,440,000 $4,960,000
In this illustration, after the second week IBM Credit would, upon the request
of Customer, make an Advance to Customer of an amount up to $20,000. After the
fourth week IBM Credit would, upon the request of Customer, make an Advance to
Customer an amount up to an additional $900,000 (e.g., $920,000 minus $20,000
previously advanced after the second week). After the fifth week IBM Credit
would, upon the request of Customer, make an Advance to Customer of an amount up
to an additional $480,000 (e.g., $1,400,000 minus $920,000 previously advanced).
(d) In the event that collections during any payroll period are
insufficient to permit Advances pursuant to Section 7.26(a) to be made
during such payroll period in an aggregate
9
amount equal to Customer's payroll obligations (including withholding
taxes) for such pay period, IBM Credit agrees to make Advances during such
payroll period in an aggregate amount not to exceed such payroll obligation
(including withholding taxes); PROVIDED that Customer shall pay all
applicable taxes in connection therewith and remain current on all payroll
tax obligations; PROVIDED, FURTHER, that if any such Advance is made
pursuant to this paragraph, notwithstanding any other term or provision of
this Agreement to the contrary, all collections subsequent to such Advance
shall be applied to repay such Advance and shall be excluded from
collections for purposes of making new Advances pursuant to paragraph
7.26(a).
7.27. Sale of Color Server Group. Customer shall have received, and
delivered a copy thereof to IBM Credit of, (i) on or prior to December 1,
1995, a firm letter of intent, in form and substance satisfactory to IBM
Credit, for the purchase of Customer's Color Server Group division, and
(ii) on or prior to December 20, 1995, a contract, in form and substance
satisfactory to IBM Credit, for the sale of Customer's Color Server Group
division. On or prior to January 15, 1995, or such later date as IBM
Credit and Customer may agree, Customer shall have completed the sale of
Customer's Color Server Group for cash and remitted payment directly to IBM
Credit of the proceeds of such sale.
7.28. Subsidiaries. Customer shall not make any Investment in or loan to,
or transfer any assets to any Subsidiary or Affiliate without the prior
written consent of IBM Credit; provided that if IBM Credit consents to the
contemplated sale of Customer's Color Server Group division then such
consent shall be considered consent under this paragraph to the transfer of
the Color Server Group division to a Subsidiary of Customer in connection
with such sale."
C. Subsection 2.6 of the Agreement is hereby amended by deleting such
subsection in its entirety and substituting, in lieu thereof, the following
subsection 2.6:
"2.6. Shortfall. If, on any date other than during the Overadvance
Period, the Outstanding Advances shall exceed the Maximum Advance Amount
(such excess, the "Shortfall Amount"), then the Customer shall on such date
prepay the Outstanding Advances in an amount equal to such Shortfall
Amount.
"Overadvance Period": the period from December 5, 1995 to and including the
date that is the earlier of (1) the date Customer receives written notice
from IBM Credit following the occurrence of a Special Event of Default that
the Overadvance Period is being terminated, (2) the date thirty (30) days,
or such later date specified by IBM Credit, after Customer
10
receives notice from IBM Credit during the continuance of a Default that
the Overadvance Period is being terminated, and (3) March 31, 1995.
"Overadvance Collateral Amount": at the time of determination, the sum of
(1) twenty percent (20%) of the lower of the aggregate invoice price to
Customer (net of any applicable credits) and fair market value of
Customer's inventory (excluding discontinued and obsolete product) in
locations for which IBM Credit has properly filed financing statements,
PLUS (2) sixty-five percent (65%) of the result, if such result is a
positive number, of (x) the aggregate of Accounts that are not Eligible
Accounts to the extent such Accounts are not Eligible Accounts solely
because such Accounts are payable by an account debtor that is not a
resident of the United States (excluding Accounts that are payable by
Xxxxxx Micro, Inc. (Canada) and Merisel Canada, Inc.) MINUS (y) the amount
of any obligations of Customer to Silicon Valley Bank, PLUS (3) fifty
percent (50%) of Accounts that are not Eligible Accounts to the extent such
Accounts are not Eligible Accounts solely because such Accounts are payable
by an account debtor that is a remarketer of computer hardware and software
products whose purchases of such products from Customer have been financed
by another person who pays proceeds of such financing directly to Customer
on behalf of such account debtor."
D. Section 2 of the Agreement is hereby amended by inserting immediately
following Subsection 2.8 thereof the following new Subsection 2.9:
"2.9. Application of Collections by IBM Credit. Notwithstanding any other
terms set forth in this Agreement or any other agreement between Customer
and IBM Credit, Customer agrees that IBM Credit may from time to time apply
any and all monies, reserves and proceeds received or collected by IBM
Credit with respect to the Accounts and other Goods or property of Customer
at any time or times hereafter, including, without limitation, any and all
funds collected from the Lockbox and the Special Account, to pay or prepay,
as the case may be, any amounts owing by Customer to IBM Credit whether or
not such amounts are then due and payable, or IBM Credit may, in its sole
discretion, disburse any part of or all such monies, reserves and proceeds
to Customer. Customer agrees that IBM Credit may, but shall not be
obligated to, cause funds collected from the Lockbox to be swept on a daily
basis."
E. Paragraph 2.3(C) of the Agreement is hereby amended by inserting immediately
following the first sentence thereof, the following sentence:
"Notwithstanding the immediately preceding sentence, during
11
the Overadvance Period, (i) Advances in an amount equal to the lesser of
(x) the Overadvance Amount and (y) the amount the Outstanding Advances
exceed the Maximum Advance Amount shall accrue a finance charge on the
unpaid principal amount thereof, at a per annum rate equal to the lesser of
(a) the finance charge set forth in Attachment A to this Agreement under
the caption "Overadvance Finance Charge" and (b) the highest rate from time
to time permitted by applicable law and (ii) Advances in excess of the
Overadvance Amount shall accrue a finance charge on the unpaid principal
amount thereof, at a per annum rate equal to the lesser of (a) the finance
charge set forth in Attachment A to this Agreement under the caption
"Excess Outstandings Finance Charge" and (b) the highest rate from time to
time permitted by applicable law; PROVIDED, HOWEVER, that in the event
Customer obtains credit insurance on Accounts described in clause 2 of the
definition of Overadvance Collateral Amount in form and substance
satisfactory to IBM Credit, A/R Advances in an amount equal to sixty-five
percent (65%) of the amount of Customer's Accounts subject to the terms and
provisions of such credit insurance that are unpaid less than ninety (90)
days from the date of invoice and payable by an account debtor that is not
a resident of the United States (excluding Accounts that are payable by
Xxxxxx Micro, Inc. (Canada) and Merisel Canada, Inc.) shall accrue interest
at the rate set forth in the immediately preceding sentence."
F. Paragraph 2.4(D) of the Agreement is hereby amended by inserting
immediately following the second sentence of such paragraph the following new
sentence:
"In addition, during the Overadvance Period Customer shall be charged a fee
equal to the product of the amount of Outstanding Advances in excess of the
Borrowing Base to the extent it does not constitute a Shortfall Amount,
including any Advances made by IBM Credit resulting in Outstanding Advances
in excess of the Borrowing Base, multiplied by thirty (30) basis points."
G. Subsection 2.1 of the Agreement is hereby amended by inserting immediately
prior to the end of the last sentence of such subsection the following phrase:
"or during the Overadvance Period, the Maximum Overadvance Amount."
H. Subsection 9.1 of the Agreement is hereby amended by inserting immediately
following paragraph (Q) thereof, the following new paragraph (R):
"(R) notwithstanding paragraph (B) of this Subsection 9.1, Customer fails
to comply with or observe any term, covenant or
12
agreement contained in the Amendment or contained in this Agreement by way
of the Amendment."
I. The Agreement is hereby amended by inserting immediately following
Attachment G thereto as Attachment H the Attachment H attached hereto.
J. The Agreement is hereby amended by deleting Attachment A to the Agreement in
its entirety and substituting, in lieu thereof, the Attachment A attached
hereto.
Section 5. ADDITIONAL COVENANTS. A. Customer agrees that prior to the close
of business on the date hereof Customer shall execute and deliver to each bank
at which it maintains a bank account, including, without limitation, the Bank of
America, a letter in substantially the form attached hereto as Exhibit 1
irrevocably directing such bank to transfer all funds received and held by such
bank from time to time on account of Customer to the Special Account at Silicon
Valley Bank. Customer agrees that prior to the close of business on the date
hereof Customer shall deposit to the Special Account at Silicon Valley Bank, all
cash and cash equivalents held by Customer or any third party on account of
Customer in excess of an aggregate amount of $1,500,000.00 (including $500,000
held by Bank of the West supporting a letter of credit for the account of
Customer). All amounts so deposited by Customer shall be deemed collections for
which Customer shall be eligible to receive Advances pursuant to paragraph 7.27.
B. Customer and IBM Credit agree to use good faith efforts to meet weekly to
discuss issues and concerns either party may have relating to the financing
relationship.
C. Customer agrees that on or prior to December 15, 1995 Customer shall provide
to IBM Credit a list in form and detail reasonably satisfactory to IBM Credit
describing all of Customer's patents, trademarks, tradenames and copyrights
registered with the United States Patent and Trademark Office or United States
Copyright Office and shall execute and deliver to IBM Credit for filing with the
appropriate offices any and all agreements, instruments, documents, and papers,
which shall be prepared by IBM Credit, as IBM Credit may request to evidence
and/or perfect IBM Credit's security interest in any such registered patents,
trademarks, tradenames or copyrights and the goodwill and general intangibles
relating thereto or represented thereby.
D. Customer agrees that all reports, listings, schedules and other information
provided by Customer to IBM Credit shall be correct and accurate to the best of
Customer's knowledge.
Section 6. REPRESENTATIONS AND WARRANTIES. Customer makes to IBM Credit the
following representations and warranties all of which
13
are material and are made to induce IBM Credit to enter into this Amendment.
6.1 ACCURACY AND COMPLETENESS OF WARRANTIES AND REPRESENTATIONS. The
representations and warranties contained in the Agreement are true and
correct in all material respects on and as of the date of this Amendment as
though made on and as of such date except to the extent that IBM Credit has
knowledge of facts to the contrary or, if IBM Credit does not have
knowledge of any such contrary facts, the failure of such representations
or warranties to be true and correct in all material respects could not
reasonably be expected to have a Material Adverse Effect.
6.2 VIOLATION OF OTHER AGREEMENTS. The execution and delivery of this
Amendment and the performance and observance of the covenants to be
performed and observed under the Agreement as amended by this Amendment do
not violate or cause Customer not to be in compliance with the terms of any
agreement to which Customer is a party.
6.3 ENFORCEABILITY OF AMENDMENT. This Amendment has been duly authorized,
executed and delivered by Customer and is enforceable against Customer in
accordance with its terms.
Section 7. RATIFICATION OF AGREEMENT. Except as specifically amended hereby,
all of the provisions of the Agreement shall remain unamended and in full force
and effect. Customer hereby ratifies, confirms and agrees that the Agreement,
as amended hereby, represents a valid and enforceable obligation of Customer,
and is not subject to any claims, offsets or defenses. Except to the extent
specifically waived herein IBM Credit reserves any and all rights and remedies
that IBM Credit now has or may have in the future with respect to Customer,
including, without limitation, with respect to any defaults of financial
covenants existing on or prior to the date hereof. Except to the extent
specifically waived herein neither this Amendment, any of IBM Credit's actions
or IBM Credit's failure to act shall be deemed to be a waiver of any such rights
or remedies.
Section 8. GOVERNING LAW. This Amendment shall be governed by and interpreted
in accordance with the laws of the State of New York.
Section 9. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be an original and all of which shall
constitute one agreement.
SECTION 10. JURY TRIAL WAIVER. EACH OF IBM CREDIT AND CUSTOMER HEREBY
IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
(INCLUDING ANY COUNTERCLAIM) OF ANY TYPE IN WHICH IBM
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CREDIT AND THE CUSTOMER ARE PARTIES AS TO ALL MATTERS ARISING DIRECTLY OR
INDIRECTLY OUT OF THE AGREEMENT, THIS AMENDMENT OR ANY DOCUMENT, INSTRUMENT OR
AGREEMENT EXECUTED IN CONNECTION THEREWITH OR HEREWITH.
IN WITNESS WHEREOF, this Amendment has been executed by the duly authorized
officers of the undersigned as of the day and year first above written.
RADIUS INC.
By: /s/Xxxxxx X. Xxxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxxx
------------------
Title: CFO
------------------
IBM CREDIT CORPORATION
By: /s/ [illegible]
---------------------
Name: [illegible]
-------------------
Title: Manager of Credit
------------------
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