AMENDMENT #2 TO
AGREEMENT FOR WHOLESALE FINANCING
(Security Agreement)
This Amendment #2 to the Agreement for Wholesale Financing (this "Amendment") is
made as of August 25, 1997 by and between MicroAge Computer Centers, Inc., a
Delaware corporation ("MCCI"), MicroAge Logistics Services, Inc., a Delaware
corporation ("MLS") and IBM Credit Corporation, a Delaware corporation ("IBM
Credit").
RECITALS
WHEREAS, MCCI and IBM Credit have entered into that certain Agreement
for Wholesale Financing dated as of December 17, 1993 (as amended, supplemented
or as otherwise modified from time to time, the "Agreement");
WHEREAS, MLS is an affiliate of MCCI and will be acquiring inventory
with financing provided by IBM Credit;
WHEREAS, IBM Credit, MCCI and MLS believe it is in their best interests
to make MLS a party to the Agreement, and
WHEREAS, IBM Credit, MCCI and MLS have agreed to modify the Agreement
as more specifically set forth below, upon and subject to the terms and
conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, MCCI and MLS ("we" or "us") and IBM Credit ("you") hereby agree as
follows:
Section 1. All capitalized terms not otherwise defined herein shall have the
respective meanings set forth in the Agreement.
Section 2. Modification of Agreement
A. The Agreement is hereby modified by hereby making MLS a party to the
Agreement, and all references to "MCCI" in the Agreement shall be deemed to be
references to MicroAge Computer Centers, Inc. and MicroAge Logistics Services,
Inc., acting jointly and severally. MLS hereby expressly assumes, on a joint and
several basis, all obligations of MCCI under the Agreement, including without
limitation all obligations regarding interest charges, fees and other amounts
payable to IBM Credit under letter agreements executed by MCCI and IBM Credit in
connection with the Agreement. Nothing herein shall be deemed to release MCCI
from any such obligations. MCCI and MLS hereby affirm all representations,
warranties and obligations of MCCI in the Agreement. MCCI and MLS agree that
they shall be jointly and severally responsible and liable for all obligations,
representations and warranties of MCCI and/or MLS under the Agreement, as
amended hereby.
In furtherance of the foregoing and not as a limitation, to secure all of its
current and future debts owed to IBM Credit, whether under the
Agreement or any current or future guaranty or other agreement, MLS grants to
IBM Credit a security interest in all inventory, equipment, fixtures, accounts,
contract rights, chattel paper, instruments, documents of title, deposit
accounts, reserves and general intangibles, now owned or hereafter acquired, and
all attachments, parts, accessories, accessions, substitutions, and replacements
thereto and all proceeds thereof, and to the extent related to the property
described above, all books, correspondence, credit files, records, invoices and
other papers and documents, including without limitation, to the extent so
related, all tapes, cards, computer runs, computer programs and other papers and
documents in our possession or control or in the possession or control of any
computer bureau from time to time acting for us, and, to the extent so related,
all rights in, to and under all policies of insurance, including claims of
rights to payments thereunder and proceeds therefrom, including any credit
insurance, and all proceeds thereof.
B. Paragraph 15 (a) of the Agreement is hereby amended by deleting such
paragraph in its entirety and substituting, in lieu thereof, the following:
"We both agree that all written material, disclosed to or received by
either of us from the other under this Agreement and the Original AWF or by you
from DFS under the Participation Agreement executed by and between you and DFS
on August 3, 1995 will be deemed "Proprietory Information" of such other party,
unless and until such time as:"
C. Paragraph 15(b)(2) of the Agreement is hereby amended by inserting
therein immediately following the word "consultants" the words "any party or
parties who may provide insurance to you in connection with any obligations owed
by us, including the obligations owed by us to you under this Agreement or the
obligations owed by us to DFS in which you are participating pursuant to the
Participation Agreement executed by and between you and DFS on August 3, 1995."
D. Paragraph 16 is hereby amended by deleting the first sentence
thereof in its entirety and substituting, in lieu thereof, the following:
"16. Each of the following shall constitute a default ("Default"): if
(i) we do not comply with any of the terms of this Agreement, the Financing
Agreement or any related documents in any material respect, or if we do not
fulfill any obligations to you under this Agreement in any material respect, the
Financing Agreement or any related documents, or any guarantor of our
indebtedness to you under this Agreement or any other agreements breaches any of
the terms, warranties or representations contained in any guaranty or other
agreements between any guarantor and you, or we or any member of the
Consolidated Group become insolvent or cease to do business as a going concern
which materially affects the business of the Consolidated Group, or (ii); we or
any member of the Consolidated Group file a voluntary petition for bankruptcy
protection, have filed against it any involuntary bankruptcy petition which
remains undismissed for a period of sixty (60) days, make any assignment for the
benefit of creditors, consent to the appointment of a custodian, receiver,
trustee, liquidator, administrator or person with similar powers or have any of
our properties seized or attached, or take any action to authorize, or for the
purpose of effectuating the foregoing; (iii) judgment is entered in an amount in
excess of one hundred thousand dollars ($100,000.00) and
such judgment is not satisfied, dismissed stayed or superseded by bond within
thirty (30) days after the day of entry thereof (and in the event of a stay or
superseded by bond, such judgment is not discharged within thirty (30) days
after termination of any such stay or bond); (iv) we or any member of the
Consolidated Group dissolve or liquidate which materially affects the business
of the Consolidated Group, or we or any member of the Consolidated Group or any
of our directors or stockholders take any action to dissolve or liquidate which
materially affects the business of the Consolidated Group; (v) any auditor
qualifies his opinion relative to any financial statement delivered to you under
this Agreement with respect to a "going concern" or like qualification or
exception or a qualification arising out of the scope of the audit; (vi) there
issues a warrant of distress for any rent or taxes with respect to any premises
occupied by us or any member of the Consolidated Group in or upon which the
Products, or any part thereof, may at any time be situated and such warrant
shall continue for a period of ten (10) days from the date such warrant is
issued; or (vii) we or any member of the Consolidated Group are in default under
any of our obligations to DFS under any agreement between us or any member of
the Consolidated Group and DFS (including, without limitation, any Agreement for
Wholesale Financing or Purchase Agreement) in any material respect, and the
applicable cure period thereunder, if any, has expired."
E. The Agreement is hereby modified by deleting Exhibit A and Exhibit B
in their entirety and substituting in lieu thereof, the Exhibit A and Exhibit B
attached hereto.
Section 3. Representations and Warranties. We make to you the following
representations and warranties all of which are material and are made to induce
you to enter into this Agreement.
Section 3.1 Accuracy and Completeness of Warranties and Representations. All
representations made by us in the Agreement were true and accurate and complete
in every respect as of the date made, and, as amended by this Amendment, all
representations made by us in the Agreement are true, accurate and complete in
every material respect as of the date hereof, and do not fail to disclose any
material fact necessary to make representations not misleading.
Section 3.2 Violation of Other Agreements. The execution and delivery of this
Amendment and the performance and observance of the covenants to be performed
and observed hereunder do not violate or cause us not to be in compliance with
the terms of any agreement to which we are a party.
Section 3.3 Litigation. Except as has been disclosed by us to you in writing,
there is no litigation, proceeding, investigation or labor dispute pending or
threatened against us, which if adversely determined, would materially adversely
affect our ability to perform our obligations under the Agreement and the other
documents, instruments and agreements executed in connection therewith or
pursuant hereto.
Section 3.4 Enforceability of Amendment. This Amendment has been duly
authorized, executed and delivered by us and is enforceable against us in
accordance with its terms.
Section 4. Ratification of Agreement. Except as specifically amended hereby, all
of the provisions of the Agreement shall remain unamended and in full force and
effect. We hereby, ratify, confirm and agree that the Agreement, as amended
hereby, represents a valid and enforceable obligation of ours, and is not
subject to any claims, offsets or defense.
Section 5. Governing Law. This Amendment shall be governed by and interpreted in
accordance with the laws of the State of Arizona.
Section 6. 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.
IN WITNESS WHEREOF, this Amendment has been duly executed by the authorized
officers of the undersigned as of the day and year first above written.
MICROAGE COMPUTER CENTERS, INC.
By: /s/ Xxxxx X. Xxxxxx
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Title: Treasurer
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/s/ Xxxx Xxxx
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Secretary
MICROAGE LOGISTICS SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxx
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Title: Treasurer
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/s/ Xxxx Xxxx
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Secretary
Accepted and Agreed:
IBM CREDIT CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Title: Manager Global Strategic
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Account Marketing
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