Exhibit 10.28
DEALER LOAN AND SECURITY AGREEMENT
Textron Financial Corporation CO-BORROWERS:
0000 Xxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000 EBIZ Enterprises, Inc.
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Exact Legal Name
00000 X. 00xx Xxx
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Street Address
Xxxxxxxxxx, XX 00000
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City, State, Zip Code
Xxxxx Business Systems, Inc.
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Exact Legal Name
00000 Xxxxxx Xx., Xxxxx X
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Street Address
Stafford, TX 774770
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City, State, Zip Code
Gentlemen:
1. We are an authorized dealer of goods manufactured and/or distributed by
various manufacturers and distributors (hereinafter called "Manufacturer"). As
such, we from time to time buy goods from Manufacturer to be held by us as our
inventory for sale by us in the normal course of our business. We may, as more
fully set forth herein, from time to time obtain loans from you in order to
finance the purchase of certain of such goods, including parts and accessories
therefor, from Manufacturer, and desire by this Agreement to set forth in
writing our understanding of our loan arrangements with you and secure repayment
of such loans and other related debts and liabilities we may have to you,
whether now existing or hereafter arising.
2. Upon our request from time to time, you may, at your sole discretion and
without any obligation to do so, make loans to us, under such terms and with
such conditions as you shall specify, to enable us to acquire rights in
Inventory from Manufacturers pre-approved by you for financing programs. We
understand that each such loan will be solely at your discretion, and we
expressly disclaim any right to expect otherwise, either from the course of our
dealing, our need therefore, your dealings with others, your arrangements with
Manufacturer, or otherwise. Conversely, nothing herein will prevent us from
obtaining financing from other sources, provided that you are completely
satisfied that such other financing will not jeopardize our ability to comply
with our financial obligations to you and that adequate procedures will be
implemented to absolutely assure your ability to identify your Collateral.
We understand that certain terms and conditions applicable to loans
obtained by us from you will be set forth in materials to be made available from
time to time to us and other dealers, the terms of which, as revised from time
to time, being deemed incorporated herein by reference. We understand that these
materials are subject to change by you at any time and from time to time, and
expressly assume the responsibility of confirming directly with you, upon our
request for each loan, the exact terms and conditions then being stated by you,
including without limitation rate of interest and terms of repayment. In no
event will we view such materials as a commitment or other offer on your part to
lend, and we will have no right to any loan under any particular terms until
actually made and under the terms so made. We understand and agree that the full
amount of each loan will be paid to you on its due date without deduction for
any sums due from Manufacturer or any Credit Memo that may have been issued to
you, unless you have previously notified us that you have received and applied
the amount of the Credit Memo issued by the Manufacturer.
We understand that you may, from time to time, issue advices to us. Such
advices may include, but need not be limited to, periodic or monthly statements
of our account, periodic letter advices in the nature of statements of account,
issued from time to time, and letter forms or other forms of notices of due
dates of finance plan payments and of the specific terms of loans which we have
with you. Unless we, within ten (10) days from the date of any such advice, give
you written and itemized objection to the contents of such advice, we shall be
fully bound thereby and acknowledge that the content of such advice is true,
correct, and complete, and accurately reflects our obligations to you as of the
date thereof.
In connection with each loan requested, we will deliver to you such other
writings as you shall require, which may include notes or other appropriate
evidence of debt. Such notes or other evidence of debt, Manufacturer invoices,
and other like materials as may be revised from time to time ("Collateral
Documents"), together with this Agreement, contain our entire understanding, and
we acknowledge that we will not be relying upon any prior oral or written
promises or undertakings or future oral promises between us. No modification
hereof or of the Collateral Documents will be binding upon you unless in a
writing duly executed on your behalf by an officer holding the rank of Vice
President or higher.
We hereby authorize you to disburse the proceeds of each loan directly to
Manufacturer on our behalf. Further, we shall and hereby authorize Manufacturer
to deliver its invoice for Inventory, together with all Certificates of Origin,
directly to you. You may assume that all such invoices so submitted are
authentic and accurate and that they have been submitted on our behalf and with
our permission. Receipt by you from us or Manufacturer of an invoice for
Inventory shall be your authority to make a loan to us under terms and
conditions then being stated by you. In addition we shall and hereby authorize
the Manufacturer to issue all Credit Memos directly to you.
We acknowledge that the term "Prime Rate", as used in the Collateral
Documents in reference to the rate of interest applicable to loans to us, will
mean the average of the Prime Rates (the base rate for corporate loans at large
U.S. money center commercial banks) quoted in the Wall Street Journal under the
caption "Money Rates", and agree that the interest rate applicable to our loans
from you will automatically change from time to time effective upon each change
in the published Prime Rate. We further agree that interest on our loans from
you will be calculated on the basis of a 360 day year but will be chargeable for
the actual days that principal is outstanding in the then current year.
We have informed you that we are currently operating as a debtor in
possession under the protection of Chapter 11 of the U.S. Bankruptcy Code with
all of the rights and obligations so afforded a debtor in possession thereunder.
3. We acknowledge that our financial arrangements with you are completely
independent of our arrangements with Manufacturer, and that neither you nor
Manufacturer are an agent for or acting on behalf of the other. We are not
relying, in our understanding with you, on any statements, promises or
representations, oral or written, made by Manufacturer, whether or not
purportedly on your behalf, relating to the subject matter hereof and of our
loans with you. Although we may receive official literature, brochures and other
written materials disseminated by you through Manufacturer, we expressly assume
the risk that the materials so received are the most current, up to date
materials then authorized by you to be disseminated. None of our obligations to
you will be affected or impaired, or be subject to any defense, set-off,
counterclaim, crossclaim or recoupment, by reason of any claim which we now or
hereafter have against Manufacturer or its agents, including without limitation
any claim for breach of express or implied warranty of title, or otherwise
related to the condition of the Collateral or our dealings with Manufacturer.
4. As used herein, the following terms shall have the following meaning:
a) "Inventory" means all present and future Inventory, as that term is
defined in the Rhode Island Uniform Commercial Code ("Code"), together will all
parts and accessories, and all replacements, substitutions and additions thereof
or thereto.
b) "Accounts" means all present and future Accounts, as that term is
defined in the Code.
c) "General Intangibles" means all present and future General
Intangibles, as that term is defined in the Code, and shall include, without
limitation, all Credit Memos and other sums due from Manufacturer, all books,
records, ledgers, journals, check books, computer tapes and disks, print outs
and other information and sources of information, and all licenses, permits,
franchises, tradenames and other rights and privileges used or useful in the
conduct of our business and the sale of Inventory.
d) "Equipment" means all present and future Equipment, as that term is
defined in the CODE, together with all parts and accessories, and all
replacements, substitutions and additions thereof or thereto.
e) "Investment Property" means all present and future Investment
Property, as that term is defined in the CODE.
f) "Proceeds" means present and future Proceeds, as that term is
defined in the CODE, and shall include, without limitation, insurance payable by
reason of loss or damage to any of the Collateral. All Proceeds received by us
will be held in trust for you until our loans are paid, and we will promptly
deliver all Proceeds to you.
g) "Collateral" means, individually and collectively, Inventory,
Accounts, General Intangibles, Equipment, Investment Property and Proceeds.
5. a) In order to secure repayment to you of each loan made by you to us
the proceeds of which enable us to acquire rights in or the use of Inventory, we
hereby grant to you a purchase money security interest in such Inventory, the
Proceeds thereof and all General Intangibles related thereto, to secure
repayment of such loan. It is intended by this subparagraph (a) that only the
Inventory so acquired, with Proceeds and related General Intangibles, will
secure the loan the proceeds of which enabled us to acquire rights in or the use
of such Inventory.
b) In order to secure repayment to you of all debts and liabilities we
may now or hereafter have to you under this Agreement or any other agreement,
whether such debt or liability be obtained by you by assignment, negotiation or
otherwise, and whether direct or indirect, primary or secondary, absolute or
contingent, or otherwise, including but not limited to all loans made by you to
us to finance the purchase of Inventory, we hereby grant to you a security
interest in all of our Inventory, Accounts, General Intangibles, Equipment and
Investment Property no matter how obtained by us, whether now existing or
hereafter acquired, and the Proceeds of all of the foregoing.
c) All payments made by us will be deemed to be applied by you first
to the loan (i) the proceeds of which enabled us to acquire rights in or the use
of Inventory which we have previously sold and (ii) with the earliest due date.
6. We hereby represent to you that all information provided by us to you in
connection with our application for each loan from you is and will be complete
and accurate in every respect. WE WILL IMMEDIATELY NOTIFY YOU IN WRITING OF ANY
CHANGE IN ANY OF THIS INFORMATION.
7. We will from time to time execute and/or deliver or cause to be executed
and/or delivered to you such financing statements, amendments to financing
statements, continuation statements, documents of title, manufacturers'
certificates of origin, warehouse receipts, bills of lading, vehicle titles,
waivers, consents and such other manner of things, and take all manner of
actions, as you may from time to time request which are in your sole opinion
necessary or desirable in order to perfect, protect, maintain, continue, realize
and/or enforce your rights and security interests granted herein. This shall
include, without limitation, the written waiver by the landlord of each location
at which any Collateral is located. A carbon, photographic or other reproduction
of this Agreement shall be sufficient as a financing statement and may be filed
in any public office as a financing statement.
8. We will maintain the Inventory in excellent, salable condition,
consistent with the highest standards in the industry, and will comply with all
applicable laws relating to our use thereof. We will provide you or your
designated representatives with access, at any time, during normal business
hours, whether announced or unannounced, to each location at which any
Collateral is located, to inspect and examine the Inventory and other Collateral
and business records, including without limitation all financial records. We
agree, at our sole cost, to keep all Inventory insured against risks covered by
standard forms of fire, theft and extended coverage and such other risks as may
be reasonably required by you and under policies issued by an insurance company
or companies and in amounts satisfactory to you. You shall be named to the
extent your interest may appear under a Lender's Loss Payable Clause in such
policy, which shall provide that the insurance cannot be canceled without at
least thirty (30) days prior written notice to you and shall insure you
notwithstanding any act or neglect on our part. At our expense, we shall furnish
you with evidence of the same in form satisfactory to you, and shall provide you
with a Certificate thereof naming you as certificate holder. We will promptly
remit to you in the form received, with all necessary endorsements, any Proceeds
of such insurance. You may make and settle claims and endorse our name on any
checks or drafts. You may apply any Proceeds of insurance which may be received
by you toward payment of any obligations or liabilities owed to you by us,
whether or not then due, in such order of application as you may determine.
Loss, damage or destruction of all or any of the Collateral shall not
affect or diminish our liabilities to you and we assume all responsibility and
risk for the existence, character, quality, condition, value, and delivery of
Inventory.
9. We will pay and/or cause to be paid all taxes, levies and other
governmental charges and assessments payable on or with respect to the
Collateral and any premises at which the Collateral is located, which if unpaid
may result in a lien or imposition thereon. Such taxes, levies, charges and
assessments will be paid prior to the date that any penalty for late payment may
be assessed with respect thereto, and if requested by you we will, at our
expense, provide you with receipts or other evidence of payment in form
satisfactory to you.
10. We will not suffer or permit any lien, security interest, charge, claim
or encumbrance to be placed on any of the Collateral, other than in your favor,
or suffer or permit any interest to exist therein which is adverse to your own,
other than the liens or encumbrances listed on Exhibit A attached hereto
("Permitted Liens") . We represent that we are, and agree to remain, the sole
and absolute owner of the Collateral, until sold in the ordinary course of our
business, and are and will remain qualified under the terms of all applicable
laws and under our dealership arrangements with Manufacturer to conduct our
business as presently conducted, with all necessary governmental and other
licenses, consents and authorizations having been obtained.
11. At your option, without any obligation to do so, you may pay and
discharge taxes, liens, levies, security interests or other encumbrances against
the Collateral except Permitted Liens, may pay for insurance on and for the
maintenance and preservation of the Collateral and perform on our behalf any
other obligation required to be performed by us hereunder but which we have
failed to so do. We shall reimburse you on demand for any payment made or any
expense incurred by you pursuant to the authority hereof, with interest at the
highest rate chargeable on any of our loans with you, and will pay you a late
charge of 1.5% per month of the amount due to you, or the highest legally
permissible rate if lower.
12. We will furnish you such information regarding our business and
financial condition as you may request from time to time, including without
limitation such financial statements, in such form and bearing such
certifications, as you shall require. We agree that you may audit or cause to be
audited our books and records at any and all times, during normal business
hours, whether announced or unannounced, and to permit you access to each
location at which any of our General Intangibles are located.
13. We will provide you with written notice of the following matters
immediately upon the occurrence thereof:
a) A change in any information provided by us to you herein, in any
application made by us in connection with any loan, or otherwise, including
without limitation, any change in the location of any Collateral or in any other
circumstances regarding the Collateral or our business operations;
b) Loss, theft, or substantial damage or destruction of any of the
Collateral or related to our business operations generally; or
c) Any other matter which might have a material adverse affect on our
financial condition or operations or which, upon the giving of notice or passage
of time, or both, would result in an event of default by us hereunder.
14. Any one or more of the following shall be an event of default by us
under this Agreement:
a) Failure by us or any person jointly or otherwise liable to you for
our obligations to you, as surety, guarantor or otherwise ("Other Obligor") to
pay any amount due you, as and when due, contained or referred to herein or in
any other instrument, document, or agreement to which we or such Other Obligor
are a party or by which we or such Other Obligor are bound to you, whether now
existing or hereafter created; or
b) Failure by us or any Other Obligor to perform or comply with any
other obligation, covenant or liability contained or referred to herein or in
any other instrument, document, or agreement to which we or such Other Obligor
are a party or by which we or such Other Obligor are bound to you, whether now
existing or hereafter created, and such failure, if reasonably susceptible of
cure, is not cured within fifteen (15) days of the occurrence thereof; or
c) If any warranty, representation, or statement made or furnished to
you by us or on our behalf or on behalf of an Other Obligor, including any
representation made on our behalf by Manufacturer, proves to be false,
misleading or incomplete in any respect; or
d) Loss, theft or substantial damage or destruction of any of the
Collateral, or the making of any levy, seizure, or attachment thereof or thereon
other than levies or attachments resulting from Permitted Liens; or
e) Dissolution, merger, consolidation, sale or other disposition of a
controlling interest in our ownership or of substantially all of our assets,
termination of existence, or the commencement of any proceeding by or against us
under Chapter 7 of the U.S. Bankruptcy Code; or
f) Failure by us to pay any obligation(s) or liability(ies)
whatsoever, past, present or future, when due to any other creditor, or the
occurrence of any event of default by us under any agreement with any of our
respective creditors, including without limitation the occurrence of an event of
default under any lease relating to any premises upon which all or any part of
our Inventory or other Collateral is located provided, however, that while any
bankruptcy automatic stay is in effect, any default under a pre-bankruptcy
petition obligation shall not constitute an event of default hereunder unless or
until such other creditor obtains relief from such automatic stay; or
g) If we give notice of a Bulk Sale or intended Bulk Sale, or call a
meeting of our respective unsecured creditors or offer a composition or
extension to such creditors, or cease to operate our respective business.
15. Upon the occurrence of an event of default, you shall have the right to
repossess the Inventory and also any and all rights available under the Code,
including, without limitation, the right to declare any and all unpaid balances
of principal, interest, costs and expenses arising out of any and all of our
obligations or liabilities to you, whether past, present or future, direct or
indirect, matured or unmatured, liquidated or unliquidated, immediately due and
payable without notice to or demand on us. We irrevocably authorize you or your
agent to enter all premises to take possession of and remove the Inventory and
other Collateral and release you from any and all liability with respect to such
entry or removal. We shall in case of default, if you so request, assemble and
deliver the Inventory and other Collateral, at our expense, to a place to be
designated by you. We shall pay all of the costs you incur in the enforcement of
any of our obligations to you or the collection of any liabilities owed to you
by us, including, without limitation, costs, expenses and reasonable attorneys'
fees. If any notification of intended disposition of any of the Inventory or
other Collateral is required by law, such notification shall be deemed
reasonably and properly given if mailed by ordinary mail or overnight delivery
service at least ten (10) days before such disposition, postage prepaid,
addressed to us, either at our address shown in this Agreement, or at such other
address as we may have designated to you in writing.
16. To the extent permitted by applicable law, we authorize you, your
designee, the Clerk of the Court, or any attorney of any Court, in the State of
Rhode Island or any other state, to appear for us at any time in any and all
actions and to confess judgment against us for all sums then owed to you,
whether or not then payable, and/or for the recovery of any or all of the
Inventory in our possession, together with reasonable attorneys fees in an
amount as determined by a court of competent jurisdiction.. Wherever this
provision is prohibited, unenforceable or unlawful, it is deemed stricken from
this Agreement.
17. Any law, custom or usage to the contrary notwithstanding, you shall
have the right at all times to enforce the covenants and provisions of this
Agreement in strict accordance with the terms hereof, notwithstanding any
conduct or custom on your part in refraining from so doing at any time or times.
Your failure at any time to invoke your rights under the covenants and
provisions of this Agreement strictly in accordance with the same shall not be
construed as having created a custom in any way or manner contrary to the
specific terms and provisions of this Agreement or as having in any way or
manner modified, altered or waived the same. Time is of the essence in our
performance hereunder and under all other agreements with you. All of your
remedies are cumulative and not alternative, and can be exercised in any order
and in any manner, separately or simultaneously, and from time to time until all
liabilities and obligations to you are satisfied in full.
18. This Agreement may be assigned by you, but we may not assign this
Agreement without your prior written consent. If you assign this Agreement, you
shall have no further obligation hereunder. All of your rights hereunder shall
inure to the benefit of your successors and assigns and all our obligations
shall bind our successors and assigns. If there be more than one party obligated
to you under this Agreement, their obligations hereunder shall be joint and
several, and the terms "we" "us" or "our" as used herein shall refer to them
jointly and severally.
19. We authorize and empower you or your employees, agents or
representatives, on our behalf, and in our name, to complete and supply any
omission or blank spaces in this Agreement and in any documents or financing
statements executed by us and including amendments and continuations thereof
under the Code; to execute and/or have acknowledged any form of security
instruments, notes, drafts and documents; and to make any requisite affidavits
which may be necessary or required by you, and/or which you may desire to
evidence or secure advances made by you pursuant to the terms of this Agreement.
All of the foregoing may be executed in such form and substance as you in your
sole discretion may deem necessary or proper, and this power of attorney, being
coupled with an interest, is irrevocable.
20. Our officers, by execution hereof, warrant and represent to you that we
are a duly formed corporation and are qualified to do business in the state(s)
in which our place(s) of business is (are) located; and, at a Board of Directors
meeting duly convened, our officer(s) were properly authorized to execute and
deliver this Agreement and all other documents whether hereunder or otherwise;
that the execution and delivery of this Agreement does not contravene the
Articles of Incorporation, By-Laws, or any agreement, document or instrument to
which we are a party or by the terms of which we are bound.
21. Any provision or part thereof in this Agreement found upon judicial
interpretation or construction to be prohibited by law shall be ineffective to
the extent of such prohibition, without invalidating the remaining provisions
hereof. All words used shall be understood and construed to be of such gender or
number as the circumstances may reasonably require.
22. We hereby represent and warrant to you and your assigns that we are so
authorized, subject to final bankruptcy court approval, to make all of the
representations, warranties and promises and to incur the obligations set forth
in this Agreement as a debtor in possession under Chapter 11 of the U.S.
Bankruptcy Code. We further represent and warrant that no action, order,
approval or authorization of our execution of this Agreement is required by any
law or court other than that already obtained by us or being concurrently
obtained in connection with our execution of this Agreement.
23. THIS AGREEMENT SHALL BE DEEMED EFFECTIVE WHEN ACCEPTED AND EXECUTED BY
YOU IN THE STATE OF RHODE ISLAND, AND THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF RHODE ISLAND.
24. AS AN INDEPENDENT COVENANT, WE IRREVOCABLY CONSENT TO THE JURISDICTION
OF THE COURTS OF THE STATE OF RHODE ISLAND IN ANY AND ALL ACTIONS BETWEEN US
WHETHER UNDER THIS AGREEMENT OR OTHERWISE AND TO THE SERVICE OF PROCESS THEREIN
BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO US AT THE ADDRESS AS SET FORTH
HEREIN OR ON YOUR RECORDS, AND IRREVOCABLY WAIVE JURY TRIAL AND THE RIGHT
THERETO IN ANY AND ALL ACTIONS BETWEEN US, WHETHER UNDER THIS AGREEMENT OR
OTHERWISE.
WE HEREBY ACKNOWLEDGE THAT WE HAVE READ AND UNDERSTAND ALL OF THE TERMS AND
PROVISIONS OF THIS AGREEMENT.
Intending to be legally bound, signed and delivered on
_____________________________, ________:
EBIZ Enterprises, Inc.
----------------------------------
(Corporate Name)
By: /s/ Xxxxx X. Xxxxxxx
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President
Attest: /s/ Xxxx Xxxxxxxxx
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Secretary
Xxxxx Business Systems, Inc.
----------------------------------
(Corporate Name)
By: /s/ Xxxxx X. Xxxxxxx
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President
Attest: /s/ Xxxx Xxxxxxxxx
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Secretary
(CORPORATE SEAL)
APPROVED AND ACCEPTED
TEXTRON FINANCIAL CORPORATION
(Secured Party)
BY: /s/ Xxx Xxxxx
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DATE: 11/14/01
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Tax ID#: 00-0000000
Filename: DLSA broad
EXHIBIT " A" TO DEALER LOAN AND SECURITY AGREEMENT
First priority security interest in all of the postpetition assets of Ebiz
Enterprises, Inc. ("Ebiz") and Xxxxx Business Systems Inc. ("JBSI") granted in
favor of The Canopy Group, Inc. ("Canopy") pursuant to the terms of that certain
Stipulation Providing for Use of Cash Collateral and Adequate Protection of
Secured Creditor's Lien dated September ____, 2001 by and between Canopy, Ebiz
and JBSI.
Prepetition, first priority security interest in all of the assets of JBSI and
second position security interest in all of the assets of Ebiz granted in favor
of Canopy.
Prepetition, first priority security interest in all of the assets of Ebiz
granted in favor of Xxxxxx Micro Inc.
Prepetition, second priority security interest in all of the assets of JBSI and
third position security interest in all of the assets of Ebiz granted in favor
of Caldera Systems, Inc.
A security interest granted to The Canopy Group, Inc. in the accounts receivable
generated, all inventory acquired and the proceeds of same, and all other
personal property of Ebiz and JBSI acquired post-petition (including, but not
limited to goods, general intangibles, and fixtures) to secure any advance
resulting from a draw on the Irrevocable Standby Letter of Credit issued
pursuant to the terms of that certain Agreement to Provide Letter of Credit and
Financial Accommodations dated October ____, 2001 by and between Canopy, Ebiz,
and JBSI.
A POTENTIAL security interest in all of the assets of Ebiz and JBSI having a
priority equal to that of Canopy which may be granted to First Financial Equity
Corporation, as agent for a group of lenders that may provide postpetition
financing in the amount of $1,100,000 to Ebiz and JBSI, upon approval by the
Bankruptcy Court after notice and hearing.
AMENDMENT TO DEALER LOAN AND SECURITY AGREEMENT (THE "AGREEMENT")
DATED _________________________, 2001
BETWEEN
TEXTRON FINANCIAL CORPORATION ("TFC")
AND
EBIZ ENTERPRISES, INC. ("OBLIGOR")
AND
XXXXX BUSINESS SYSTEMS INC. ("OBLIGOR")
The Agreement is amended by adding the following paragraphs:
1. As security for the performance of all obligations of Obligor and/or its
affiliates owing to TFC and/or its affiliates, including the obligations of
Obligor set forth in the Agreement, whether contingent or otherwise (the
"Obligations"), Obligor agrees to cause to be issued to TFC, by a United
States bank acceptable to TFC, an Irrevocable Standby Letter of Credit in
form and substance satisfactory to TFC (the "Credit"). The Credit shall be
in an amount of not less than $500,000.00 and shall provide for indefinite
annual automatic renewals unless TFC receives written notice from the
issuer of the Credit, no less than sixty (60) days prior to the Credit's
then applicable expiration date, of such issuer's election not to renew the
Credit (the "Notice").
2. TFC's receipt of the Notice shall constitute an event of default on the
part of Obligor under all agreements between Obligor and/or its affiliates
and TFC and/or its affiliates, including the Agreement, entitling TFC to
draw on the Credit and to exercise any and all remedies and rights
available to TFC under the Agreement or otherwise, the foregoing Paragraph
1, within thirty (30) days following TFC's receipt of the Notice. In the
event that the Obligations are contingent, either in whole or in part, TFC
shall hold the proceeds of any such draw remaining after application of
such proceeds to matured Obligations (whether matured by acceleration or
otherwise) as security for the continuing Obligations.
3. TFC agrees that, upon receipt of written notice from any secured creditor
of Obligor is in default under the terms of any agreement with such secured
creditor effective after the date of Obligor's September , 2001 bankruptcy
petition, TFC will not make any additional loans to Obligor until such
secured party has notified TFC in writing that such default has been cured.
TEXTRON FINANCIAL CORPORATION EBIZ ENTERPRISES, INC.
By: /s/ Xxx Xxxxx By: /s/ Xxxxx X. Xxxxxxx
------------------------------- ------------------------------
Name: ____________________________ Name: ___________________________
Title: ____________________________ Title: __________________________
Date: ____________________________ Date: ___________________________
XXXXX BUSINESS SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: ___________________________
Title: __________________________
Date: ___________________________
