Exhibit 10.35
AMENDMENT
TO
AGREEMENT FOR WHOLESALE FINANCING
This Amendment ("Amendment") to Agreement for Wholesale Financing is made
as of December ___, 1999 by and between Comteq Federal, Inc., a Maryland
corporation ("Customer") and IBM Credit Corporation, a Delaware corporation
("IBM Credit").
RECITALS:
WHEREAS, Customer and IBM Credit have entered into that certain Agreement
for Wholesale Financing ("Agreement") dated as of October 10, 1993; and
WHEREAS, Customer and IBM Credit 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 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. All capitalized terms not otherwise defined herein shall
have the respective meanings set forth in the Agreement.
Section 2. Amendment. The Agreement is hereby amended by deleting the first
paragraph of Section 11 of the Agreement in its entirety and substituting in
lieu thereof is the following:
"11. Any of the following events will constitute an event of default by us under
this Agreement: we breache any of the terms, warranties or representations
contained in this Agreement or in any other agreements between us and you or
between us and any of your affiliates; any guarantor of our obligations to you
under this Agreement or any other agreements breaches any of the terms,
warranties or representations contained in such guaranty or other agreements
between such guarantor and you; any representation, statement, report or
certificate made or delivered by us or any of our owners, representatives,
employees or agents or by any guarantor to you is not true and correct; we fail
to pay any of the liabilities or obligations owed to you or any of your
affiliates when due and payable under this Agreement or under any other
agreements between us and you or between us and any of your affiliates; you
determine that you are insecure with respect to any of the Goods or the payment
of our obligations owed to you; we abandon the Goods or any part thereof; we or
any guarantor becomes in default in the payment of any indebtedness owed to any
third party; there shall occur an Event of Default pursuant to and as defined in
any financing agreement between PC Connection, Inc., a Delaware corporation and
guarantor and State Street Bank dated as of May 29, 1999 or any successor
financing agreement thereto, a judgment issues on any money demand against us or
any guarantor; an attachment, sale or seizure is issued against us or any of the
Goods; any part of the Goods is seized or taken in execution; the death of the
undersigned if the business is operated as a sole proprietorship, or the death
of a partner if the business is operated as a partnership, or the death of any
guarantor; we cease or suspend our business; we or any guarantor makes a general
assignment for the benefit of creditors; we or any guarantor becomes insolvent
or voluntarily or involuntarily becomes subject to the Federal Bankruptcy Code,
state insolvency laws or any act for the benefit of creditors; any receiver is
appointed for any of our or any guarantor's assets, or any guaranty pertaining
to our obligations to you is terminated for any reason whatsoever, any guarantor
disclaims any obligations under any guaranty; we lose any franchise, permission,
license or right to sell or deal in any Goods which you finance; we or any
guarantor misrepresents its respective financial condition or organizational
structure; or you determine, in your sole discretion, that the Goods, any other
collateral given to you to secure our obligations to you, any guarantor's
guaranty, or our or any guarantor's net worth has decreased in value, and we
have been unable, within the time period prescribed by you, to either provide
you with additional collateral in a form
Page 1 of 2 December 14, 1999
and substance satisfactory to you or reduce our total obligations by an amount
sufficient to satisfy you. Following an event of a default."
Section 3. Ratification of Agreement. Except as specifically amended hereby, all
of the provisions of the Agreement shall remain unamended and in full force and
effect.
Section 4. Governing Law. This Amendment shall be governed by and interpreted in
accordance with the laws which govern the Agreement.
Section 5. 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 executed by duly authorized
officers of the undersigned as of the day and year first above written.
IBM CREDIT CORPORATION COMTEQ FEDERAL, INC.
By: ___________________________ By: _________________________________
Print Name: ___________________ Print Name: _________________________
Title: ________________________ Title: ______________________________
ATTEST: ATTEST:
_______________________________ _____________________________________
Print Name: ___________________ Print Name: _________________________
Page 2 of 2 December 14, 1999
EXHIBIT A, EFFECTIVE DATE December 2, 1999 "FPP EXHIBIT A"),
TO ADDENDUM TO AGREEMENT FOR WHOLESALE FINANCING - FLEXIBLE PAYMENT PLAN
("FPP ADDENDUM") DATED December 22, 1993
Customer's Name ComTeq Federal, Inc.
1. FPP Credit Line Fees, Rates and Repayment Terms:
(a) FPP Application Processing Fee: $2,500.00;
(b) FPP Credit Line: Nine Million Five Hundred Thousand Dollars
($9,500,000.00);
(c) Valuation Percentage:
(i) 85% of the amount of Customer's Eligible Accounts as of the date
of determination as reflected in the Customer's most recent
Collateral Report;
** Government receivables will be eligible up to and including 120
days.
(d) Payment Due Dates will be the 5th, 15th, and 25th of each calendar
month;
(e) Monthly Service Fee: $500.00;
(f) Financing Period: 100 days from the date of each invoice;
(g) No-Charge Financing Days: For products subsidized by a manufacturer
there will be no charge for a certain period of time from the date
of the invoice; or
Basis Points: Unless informed otherwise, for products not subsidized
by a manufacturer there will be a one-time charge of 25 basis points
for each invoice which is in addition to the Finance Charge Rate
beginning on day 1;
(h) FPP Financing Charge: Prime Rate plus 1.50%;
EXHIBIT A TO ADDENDUM TO AGREEMENT FOR WHOLESALE FINANCING
FLEXIBLE PAYMENT PLAN ("FPP EXHIBIT A") (continued)
1. FPP Credit Line Fees, Rates and Repayment Terms (cont):
(i) FPP Working Capital Option ("WCO"): Outstanding advances authorized
up to the amount of eligible collateral. Total Outstanding
Indebtedness not to exceed the FPP credit line amount;
(j) WCO Term: 180 days;
(k) FPP WCO Financing Charge: Prime Rate plus 1.50%;
(l) Maximum Payment Reschedule Option ("PRO") Term: 30 days;
(m) FPP PRO Financing Charge: Prime Rate plus 1.50%
(n) Delinquency Fee: Prime Rate plus 6.50%;
(o) ** Shortfall Transaction Fee: Shortfall Amount multiplied by 0.30%.
Financing Charges will be based on the Average Daily Balance ("ADB") and will be
billed monthly. WCO and PRO Advances will become part of Customer's Outstanding
Indebtedness to IBM Credit.
EXHIBIT A TO ADDENDUM TO AGREEMENT FOR WHOLESALE FINANCING
FLEXIBLE PAYMENT PLAN ("FPP EXHIBIT A") (continued)
2. Documentation Requirements: ("Other Documents")
o Executed Contingent Blocked Account Amendment to a Lockbox
Agreement;
o Subordination or Intercreditor Agreements from all creditors
having a lien which is superior to IBM Credit's in any First
Assets;
o Executed Waiver of Landlord Lien for all premises in which a
landlord has the right of levy for rent;
o Any and all other documents and/or agreements IBM Credit, in
its sole discretion, deems necessary.
o Fiscal year-end financial statements of Customer as of
December 31, 1999 and delivered to IBM Credit no later than 90
days after fiscal year end.
EXHIBIT A TO ADDENDUM TO AGREEMENT FOR WHOLESALE FINANCING
FLEXIBLE PAYMENT PLAN ("FPP EXHIBIT A") (continued)
2. Documentation Requirements (continued):
Customer must submit the following within sixty (60) days after the
end of Customer's fiscal year, and as requested by IBM Credit from
time to time:
o A pro forma income statement, balance sheet and cash flow
statement for the next 12 months or through the current fiscal
year and the following fiscal year; and
o business narrative that at a minimum should include an
explanation on how Customer plans to accomplish significant
changes in revenue, gross profit margin, expenses, operating
profit margin and net profit. The Customer's business
strategy, anticipated business climate, and the headcount that
will produce the projected financial results should also be
included.
EXHIBIT A TO ADDENDUM TO AGREEMENT FOR WHOLESALE FINANCING
FLEXIBLE PAYMENT PLAN ("FPP EXHIBIT A") (continued)
3. Financial Covenants:
Definitions: The following terms shall have the following respective meanings in
this Exhibit. All amounts shall be determined in accordance with generally
accepted accounting principles (GAAP).
Consolidated Net Income shall mean, for any period, the net income (or
loss), after taxes, of Customer on a consolidated basis for such period
determined in accordance with GAAP.
Current shall mean within the on-going twelve month period.
Current Assets shall mean assets that are cash or expected to become cash
within the on-going twelve months.
Current Liabilities shall mean payment obligations resulting from past or
current transactions that require settlement within the on-going twelve
month period. All indebtedness to IBM Credit shall be considered a Current
Liability for purposes of determining compliance with the Financial
Covenants.
EBITDA shall mean, for any period (determined on a consolidated basis in
accordance with GAAP), (a) the Consolidated Net Income of Customer for
such period, plus (b) each of the following to the extent reflected as an
expense in the determination of such Consolidated Net Income: (i) the
Customer's provisions for taxes based on income for such period; (ii)
Interest Expense for such period; and (iii) depreciation and amortization
of tangible and intangible assets of Customer for such period.
Fixed Charges shall mean, for any period, an amount equal to the sum,
without duplication, of the amounts for such as determined for the
Customer on a consolidated basis, of (i) scheduled repayments of principal
of all Indebtedness (as reduced by repayments thereon previously made),
(ii) Interest Expense, (iii) capital expenditures (iv) dividends, (v)
leasehold improvement expenditures and (vi) all provisions for U.S. and
non U.S. Federal, state and local taxes.
Fixed Charge Coverage Ratio shall mean the ratio as of the last day of any
fiscal period of (i) EBITDA as of the last day of such fiscal period to
(ii) Fixed Charges.
EXHIBIT A TO ADDENDUM TO AGREEMENT FOR WHOLESALE FINANCING
FLEXIBLE PAYMENT PLAN ("FPP EXHIBIT A") (continued)
3. Financial Covenants (continued):
Interest Expense shall mean, for any period, the aggregate consolidated
interest expense of Customer during such period in respect of Indebtedness
determined on a consolidated basis in accordance with GAAP, including,
without limitation, amortization of original issue discount on any
Indebtedness and of all fees payable in connection with the incidence of
such Indebtedness (to the extent included in interest expense), the
interest portion of any deferred payment obligation and the interest
component of any capital lease obligations.
Long Term shall mean beyond the on-going twelve month period.
Long Term Assets shall mean assets that take longer than a year to be
converted to cash. They are divided into four categories: tangible assets,
investments, intangibles and other.
Long Term Debt shall mean payment obligations of indebtedness which mature
more than twelve months from the date of determination, or mature within
twelve months from such date but are renewable or extendible at the option
of the debtor to a date more than twelve months from the date of
determination.
Net Profit after Tax shall mean Revenue plus all other income, minus all
costs, including applicable taxes.
Revenue shall mean the monetary expression of the aggregate of products or
services transferred by an enterprise to its customers for which said
customers have paid or are obligated to pay, plus other income as allowed.
Subordinated Debt shall mean Customer's indebtedness to third parties as
evidenced by an executed Notes Payable Subordination Agreement in favor of
IBM Credit.
EXHIBIT A TO ADDENDUM TO AGREEMENT FOR WHOLESALE FINANCING
FLEXIBLE PAYMENT PLAN ("FPP EXHIBIT A") (continued)
3. Financial Covenants (continued):
Tangible Net Worth shall mean:
Total Net Worth minus;
(a) goodwill, organizational expenses, pre-paid
expenses, deferred charges, research and
development expenses, software development costs,
leasehold expenses, trademarks, trade names,
copyrights, patents, patent applications,
privileges, franchises, licenses and rights in any
thereof, and other similar intangibles (but not
including contract rights) and other current and
non-current assets as identified in Customer's
financial statements;
(b) all accounts receivable from employees, officers,
directors, stockholders and affiliates; and
(c) all callable/redeemable preferred stock.
Total Assets shall mean the total of Current Assets and Long Term
Assets.
Total Liabilities shall mean the Current Liabilities and Long Term
Debt less Subordinated Debt, resulting from past or current
transactions, that require settlement in the future.
Total Net Worth (the amount of owner's or stockholder's ownership in
an enterprise) is equal to Total Assets minus Total Liabilities.
Working Capital shall mean Current Assets minus Current Liabilities.
EXHIBIT A TO ADDENDUM TO AGREEMENT FOR WHOLESALE FINANCING
FLEXIBLE PAYMENT PLAN ("FPP EXHIBIT A") (continued)
3. Non-Financial Covenants:
Customer agrees to maintain standard all-risk insurance coverage on all
locations in the amount of at least Five Hundred Thousand Dollars
($500,000.00) and provide IBM Credit with a copy of the insurance policy.
IBM Credit Corporation must be named as a lender loss payee.
EXHIBIT A TO ADDENDUM TO AGREEMENT FOR WHOLESALE FINANCING
FLEXIBLE PAYMENT PLAN ("FPP EXHIBIT A") (continued)
4. Financial Report Preparation Requirements:
Reports due under the terms of the FPP Addendum shall be prepared as
follows:
Annual Reports shall be submitted no later than ninety (90) days after the
close of the fiscal year.
Quarterly Reports shall be prepared internally by the Customer and
delivered to IBM Credit no later than forty-five (45) days after the close
of the quarter.
Customer must submit the following within sixty (60) days after the end of
Customer's fiscal year, and as requested by IBM Credit from time to time:
o A pro forma income statement, balance sheet and cash flow
statement for the next 12 months or through the current fiscal
year and the following fiscal year; and
o business narrative that at a minimum should include an
explanation on how Customer plans to accomplish significant
changes in revenue, gross profit margin, expenses, operating
profit margin and net profit. The Customer's business
strategy, anticipated business climate, and the headcount that
will produce the projected financial results should also be
included.
