ENDMENT TO BUSINESS FINANCING AGREEMENT AND AGREEMENT FOR WHOLESALE FINANCING
EXHIBIT
10-63
ENDMENT
TO BUSINESS FINANCING AGREEMENT AND
AGREEMENT
FOR WHOLESALE FINANCING
This
Amendment is made to (i) that certain Business Financing Agreement executed
on
the 25th day of
June, 2004, between En Pointe Technologies Sales, Inc. and En Pointe
Gov, Inc. (individually, collectively and jointly and
severally "Dealer") and GE Commercial Distribution Finance
Corporation ("CDF"), as amended ("BFA") and (ii) that certain Agreement
for Wholesale Financing between Dealer and CDF dated June 25, 2004 as amended
("AWF").
FOR
VALUE RECEIVED, CDF and
Dealer agree that the following paragraph is incorporated into the AWF and
BFA
as if fully and originally set forth therein (capitalized
terms shall
have the same meaning as defined in the BFA unless otherwise
indicated):
|
1.
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As
of the date of execution of this Amendment, all prior financial convenants
as previously set forth are hereby deleted in their entirety and
restated
to read as follows:
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“En
Pointe Technologies, Inc., Guarantor of Dealer’s obligations to CDF under a
Collateralized Guaranty dated June 25, 2004 (“Guarantor”), will maintain, as of
the last day of each calendar quarter set forth below:
|
(a)
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a
Tangible Net Worth and Subordinated Debt in the combined amount of
not
less than the amount shown below:
|
Quarter-end Amount
June
30, 2007 and each quarter-end
thereafter $12,750,000
|
(b)
|
Dealer
covenants that the ratio of Guarantor's Total Funded Indebtedness,
calculated as of the last day of each fiscal quarter, commencing
with the
fiscal quarter ending on June 30, 2007, to EBITDA, calculated as
of the
last day of each such fiscal quarter, for the preceding four fiscal
quarters then ended, shall be no more than three to one
(3.00:1.00).
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For
purposes of this paragraph: (i) 'Tangible Net Worth' means the
book value of Guarantor's assets less liabilities, excluding from
such assets all Intangibles; (ii) 'Intangibles' means and includes
general intangibles; software (purchased or developed in-house); accounts
receivable and advances due from officers, directors, employees, stockholders,
members, owners 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; the capitalized cost of patents,
trademarks, service marks and copyrights net of amortization; and such other
similar items as CDF may from time to time determine in CDF's sole discretion;
(iii) 'Debt' means all of Guarantor'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 Guarantor
has pledged assets to secure performance, whether or not direct recourse
liability has been assumed by Guarantor; (iv) 'Subordinated
Debt' means all of Guarantor's Debt which is subordinated to the
payment of Guarantor's liabilities to CDF by an agreement in form and
substance satisfactory to CDF; (v) 'Current Tangible Assets'
means Guarantor's current assets less, to the extent otherwise
included therein, all Intangibles (vi) ‘Funded Debt’
means, the sum of the following, without duplication
(1) Dealer's outstanding principal and interest indebtedness to CDF
excluding the principal outstanding under Dealer's
inventory floorplan credit facility and, (2) Guarantor's aggregate
outstanding principal balance of all other indebtedness for borrowed money,
including, without limitation, the amount which would have been the aggregage
cost of all property leased pursuant to a capital lease if such property would
have been purchased rather than leased, but,
excluding, (3) Subordinated Debt, and (4) that portion of the
outstanding principal balance of Guarantor's Pakistan affiliates' indebtedness
for borrowed money up to the amount of such affiliates' interest bearing assets
and (vii) ‘EBITDA’ means, net operating income plus depreciation and
amortization plus other income as reflected on Guarantor's quarterly
consolidated financial statements that have been prepared according to GAAP
(“GAAP”). All terms used herein to the extent not defined shall be
used in accordance with generally accepted accounting principles consistently
applied. All amounts, if applicable, shall be calculated on a
consolidated basis (“GAAP”).
Dealer
waives notice of CDF’s acceptance of this Amendment.
All
other
terms and provision of the BFA and AWF, 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 CDF have both read this Amendment to the BFA and
AWF, understand all the terms and provisions hereof, and agree to be bound
thereby and subject thereto as of this 25th day of
September , 2007.
ATTEST: EN
POINTE TECHNOLOGIES SALES, INC.
/s/
Xxxxxx X.
Xxxxxx By: /s/ Attiazaz “Xxx”
Din
Xxxxxx
X.
Xxxxxx,
Secretary Attiazaz
“Xxx” Din
Chief
Executive Officer
ATTEST: EN
POINTE GOV, INC.
/s/
Xxxxxx X.
Xxxxxx By: /s/ Attiazaz “Xxx”
Din
Xxxxxx
X.
Xxxxxx,
Secretary Attiazaz
“Xxx” Din
Chief
Executive Officer
GE
COMMERCIAL DISTRIBUTION FINANCE CORPORATION
By: /s/
Xxxxx X.
Xxxxx
Xxxxx
X. Xxxxx
Vice
President of Operations
ACKNOWLEDGEMENT
BY GUARANTOR:
EN
POINTE TECHNOLOGIES, INC.
By: /s/
Attiazaz “Xxx” Din___________________________________
Attiazaz
“Xxx” Din
President
