[GRAPHICD]
SECURED WHOLESALE FINANCE AGREEMENT
THIS SECURED WHOLESALE FINANCE AGREEMENT (collectively with any Schedule (the
"SCHEDULE") attached hereto, the "AGREEMENT") dated the date set forth below, is
entered into between COMPUSA STORES LP, a Texas limited partnership (the
"DEALER"), with its chief executive office and principal place of business
located at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and FINOVA CAPITAL
CORPORATION, a Delaware corporation ("FINOVA"), whose address is ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
1. DEFINITIONS. In addition to terms defined elsewhere in this Agreement,
the following terms have the definitions set forth below:
"ACCOMMODATION PARTY" means Compaq Computer Corporation, a Delaware corporation.
"ALLOWED CREDITS" means those adjustments to Vendor invoices requested by
Dealer, as more particularly set forth, processed and determined in accordance
with the procedures set forth in the Tri-Party Agreement.
"BASE RATE" means the rate of interest announced publicly by Citibank, N.A. (or
any successor thereto) as its "Prime Rate" which may not be such institution's
lowest rate.
"CODE" means the Uniform Commercial Code as adopted and in effect in the State
of Arizona from time-to-time.
"COLLATERAL" means all of Dealer's present and future right, title and interest
in and to the Financed Inventory, all identifiable cash proceeds (including
proceeds of any insurance payable due to loss or damage to any of the Financed
Inventory) and products thereof, rights, claims and choses-in-action of Dealer
against Vendor in respect of the Financed Inventory, and books, records and
computer data relating thereto; provided, that notwithstanding the forgoing, the
term "Collateral" expressly excludes any proceeds constituting accounts,
instruments or general intangibles (as such terms are defined by the Code).
"ERISA" means the Employment Retirement Income Security Act of 1974, as amended,
and the regulations thereunder.
"ERISA AFFILIATE" means each trade or business (whether or not incorporated and
whether or not foreign) which is or may hereafter become a member of a group of
which Dealer is a member and which is treated as a single employer under ERISA
Section 4001(b)(1), or IRC Section 414.
"FINANCED INVENTORY" means all inventory (as such term is defined by the Code)
acquired or to be acquired by Dealer at any time or from time-to-time from
Vendor in the ordinary course of Dealer's business with proceeds of Loans made
by FINOVA to, or for the benefit of, Dealer, including, but not limited to
Financed Inventory bearing Vendor's trademark, and all additions to and
accession of such inventory, including software integrated or installed thereon
by Vendor, Dealer or any third party and any of such Financed Inventory returned
to or repossessed by Dealer, and all documents of title or other documents
representing Financed Inventory.
"GAAP" means generally accepted accounting principles in the United States of
America as in effect from time to time as set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and the statements and pronouncements of the
Financial Accounting Standards Boards which are applicable to the circumstances
as of the date of determination consistently applied.
"GUARANTOR" means CompUSA, Inc., a Delaware corporation.
"IRC" means the Internal Revenue Code of 1986, as amended, and the regulations
thereunder.
"LOAN DOCUMENTS" means, collectively, this Agreement, any note executed by
Dealer and payable
to FINOVA, and any other agreement entered into, or instrument or document
executed, delivered or recorded in connection with the Advances, including,
without limitation, Vendor invoices and purchase orders, and all alterations,
amendments, extensions, modifications, refinancings, renewals, replacements,
restatements or supplements of or to any of the foregoing.
"LOAN PARTY" means Dealer and Guarantor.
"OBLIGATIONS" means all present and future Advances and all interest, and
reasonable charges, expenses, fees, attorney's fees, and other sums chargeable
to Dealer hereunder.
"PBGC" means the Pension Benefit Guarantee Corporation.
"PERMITTED DISCRETION" means FINOVA's reasonable discretion in the exercise of
reasonable credit judgment which FINOVA believes: (i) will or could adversely
affect the value of any Collateral, the enforceability or priority of FINOVA's
liens thereon or the amount which FINOVA would be likely to receive (after
giving consideration to delays in payment and costs of enforcement) in the
liquidation of such Collateral; (ii) suggests that any collateral report or
financial information delivered to FINOVA by any person on behalf of Dealer is
incomplete, inaccurate or misleading in any material respect; (iii) materially
increases the likelihood of a bankruptcy, reorganization or other insolvency
proceeding involving Dealer or any of the Collateral, or (iv) creates or
reasonably could be expected to create an Event of Default. The phrase "FINOVA's
reasonable discretion in the exercise of reasonable credit judgment" shall be
measured according to that discretion which would be exercised by a reasonably
prudent Person that is a commercial lender in the inventory/distribution finance
industry and acting in such capacity under the same or substantially similar
circumstances.
"PERSON" means any individual, sole proprietorship, partnership, joint venture,
trust, unincorporated organization, association, corporation, limited liability
company, government, or any agency or political division thereof, or any other
entity.
"PRIMARY LENDER" means Bank of America, N.A. (formerly NationsBank, N.A.), and
those certain other lenders identified as such in the Primary Loan Agreement.
"PRIMARY LOAN AGREEMENT" means that certain Loan and Security Agreement dated as
of June 30, 1999, by and among Dealer and those certain other lenders which are
parties thereto, as the same may from time-to-time be amended, increased,
supplemented, extended, modified, renewed, refunded, replaced or refinanced.
"SCHEDULE" has the meaning set forth in the Preamble.
"TRI-PARTY AGREEMENT" means that certain agreement of even date herewith by and
among Dealer, Vendor and FINOVA, as the same may from time-to-time be amended in
accordance with the provisions thereof, pursuant to which the parties thereto
have established procedures for the purchase, sale, delivery, pricing and
funding of the Financed Inventory to be purchased by the Dealer from the Vendor.
"VENDOR" means COMPAQ COMPUTER CORPORATION.
2. CREDIT FACILITY.
2.1 TOTAL FACILITY. Upon the terms and conditions set forth herein and
provided that no Event of Default or event, which with the giving of notice or
the passage of time, or both, would constitute an Event of Default, may have
occurred and be continuing, FINOVA shall, at Dealer's request and in FINOVA's
Permitted Discretion, make advances from time to time (each, an "ADVANCE" and
collectively, "ADVANCES") to or for Dealer's account in an aggregate principal
amount not to exceed the Total Facility amount set forth in the Schedule ("TOTAL
FACILITY") for the purpose of financing Dealer's acquisition of Financed
Inventory from the Vendor. The Total Facility shall at no time exceed
Eighty-Five Million ($85,000,000) Dollars
2.2 PROCEDURE FOR ADVANCES., Advances shall be made in accordance with
the following general procedures: (i) Dealer shall deliver to Vendor Dealer's
purchase order for Financed Inventory; (ii) upon receipt of such purchase order,
Vendor will promptly deliver to FINOVA a copy thereof requesting FINOVA's
approval thereof; (iii) if in the exercise of FINOVA's Permitted Discretion,
FINOVA grants its approval of such purchase order, FINOVA will promptly deliver
to Vendor FINOVA's approval
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number with respect thereto; (iv) upon receipt of such approval number from
FINOVA, Vendor shall promptly ship the Financed Inventory and deliver
Vendor's invoice therefor to FINOVA, with a copy thereof to Dealer; and (v)
subject to the terms, conditions and procedures set forth in the Tri-Party
Agreement, FINOVA shall pay such invoice, and the full amount of such invoice
(notwithstanding any discount or other financial accommodation which may be
provided to FINOVA by the Vendor or others with respect thereto) shall be
deemed an Advance under the Loan made at the ultimate request of the Dealer
for the benefit of Dealer. In the event that FINOVA fails to issue its
approval to Vendor, as provided in clause (iii) above, upon no less than
fifteen (15) days prior written notice to FINOVA, Dealer may terminate this
Agreement and avoid the payment of an Early Termination Fee as set forth in
the Schedule; provided, however, that FINOVA shall continue to honor all
invoices previously approved by FINOVA under clause (iii) above, and Dealer
shall pay all Obligations hereunder as and when otherwise due hereunder. This
Agreement may be terminated by FINOVA and Dealer as more specifically set
forth in the Schedule.
2.3 EVIDENCE OF ADVANCES. Each Advance or the Total Facility may, in
FINOVA's Permitted Discretion, be evidenced by notes or other instruments issued
or made by Dealer to FINOVA. If not so evidenced, such Advance shall be
evidenced solely by entries upon FINOVA's books and records.
2.4 PAYMENTS; PAYMENTS WITHOUT DEDUCTION. Advances shall be due within
the period specified on the Schedule. Any invoice not paid within such period
shall bear interest at the Default Rate provided in Section 3.1 of the Schedule.
FINOVA will provide Dealer with monthly statements and weekly confirmations of
transactions. Payments are due at the notice address set forth on the signature
page hereto on the 5th, 15th and 25th day of each month. With the exception of
Allowed Credits, Dealer shall pay all principal, interest, and other charges
payable hereunder when due, without any deduction whatsoever, including, without
limitation, any deduction for setoff, counterclaim, or recoupment, or for any
credit or other sum due Dealer from Vendor. Dealer's obligations under this
Agreement shall not be affected or impaired in any way by reason of any present
or future claim of Dealer against Vendor 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 Financed Inventory or Dealer's
relationship with Vendor.
2.5 APPLICATION OF PAYMENTS. All payments shall be applied first to the
Advance, the proceeds of which enabled Dealer to acquire rights in or use of
specific Financed Inventory, and then to other Advances outstanding in order of
the payment due dates thereunder.
2.6 APPROVED VENDOR. Dealer shall not request, and FINOVA shall have no
obligation to make, any Advance to finance Dealer's acquisition of Financed
Inventory unless such Financed Inventory are sold to Dealer by Vendor.
2.7 TRI-PARTY AGREEMENT. The provisions of the Tri-Party Agreement are
expressly incorporated herein and made a part hereof.
2.8 POWER OF ATTORNEY. Dealer hereby appoints any attorney, employee,
officer, agent or representative of FINOVA as Dealer's true and lawful
attorney-in-fact, and upon the occurrence of an Event of Default such Person or
Persons shall have the power to execute and deliver as attorney-in-fact for
Dealer: (i) any and all UCC-1 Financing Statements in favor of FINOVA, together
with any and all UCC-3 Continuation Statements in favor of FINOVA; (ii) any and
all instruments arising out of the sale or other disposition of any Collateral,
including releases and satisfactions; (iii) any check which may be payable to
Dealer for returned or unearned premiums or the proceeds of insurance with
respect to the Collateral; and (iv) with respect to the Collateral, to sign and
endorse the name of Dealer upon drafts drawn on persons liable, directly or
indirectly, on any account, and on assignments, verifications, notices,
invoices, freight or express bills, bills of lading, storage or warehouse
receipts and similar items. Dealer hereby grants to said attorney full power to
do any and all things necessary to be done with respect to the above as fully
and effectively as Dealer might or could do, with full power of substitution,
and hereby ratifying and confirming all its said attorney or its substitutes
shall lawfully do or cause to be done by virtue hereof. This power of attorney,
being coupled with an interest, shall be irrevocable until all amounts or the
Obligations hereunder are paid and performed in full, and shall survive any
dissolution, termination or liquidation of Dealer.
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3. INTEREST
3.1 RATE. With respect to the Advances, Dealer shall pay FINOVA
interest as set forth in the Schedule.
3.2 FLOATING RATE; COMPUTATION. The interest rate chargeable on any
Advance shall be increased or decreased as the case may be, without notice or
demand of any kind, upon the announcement of any change in the Base Rate. Each
change in the Base Rate shall be effective immediately. Interest and all other
fees and charges shall be computed on the basis of a year of 360 days and actual
days elapsed and shall be payable to FINOVA in arrears on the first business day
of each month.
3.3 [INTENTIONALLY DELETED]
3.4 EXCESS INTEREST. The contracted for rate of interest contemplated
hereby, without limitation, shall consist of the following: (i) the interest
rate set forth in the Schedule, calculated and applied to the principal balance
of the Obligations in accordance with the provisions of this Agreement; (ii)
interest after an Event of Default, calculated and applied to the amount of the
Obligations in accordance with the provisions hereof; (iii) any discount
afforded FINOVA with respect Vendor invoices for Financed Inventory; and (iv)
all Additional Sums (as herein defined), if any. Dealer agrees to pay an
effective contracted for rate of interest which is the sum of the
above-referenced elements. The Facility Fee, attorneys fees, the Early
Termination Fee, other charges or any other sums or things of value paid or
payable by Dealer hereunder (collectively, the "ADDITIONAL SUMS"), whether
pursuant to this Agreement or any other documents or instruments in any way
pertaining to this lending transaction, or otherwise with respect to this
lending transaction, that under any applicable law may be deemed to be interest
with respect to this lending transaction, for the purpose of any applicable law
that may limit the maximum amount of interest to be charged with respect to this
lending transaction, shall be payable by Dealer as, and shall be deemed to be,
additional interest and for such purposes only, the agreed upon and "contracted
for rate of interest" of this lending transaction shall be deemed to be
increased by the rate of interest resulting from the inclusion of the Additional
Sums.
It is the intent of the parties to comply with the usury laws of the
State of Arizona (the "APPLICABLE USURY LAW"). Accordingly, it is agreed that
notwithstanding any provisions to the contrary in this Agreement, or in any of
the documents securing payment hereof or otherwise relating hereto, in no event
shall this Agreement or such documents require the payment or permit the
collection of interest in excess of the maximum contract rate permitted by the
Applicable Usury Law (the "MAXIMUM INTEREST RATE"). In the event (a) any such
excess of interest otherwise would be contracted for, charged or received from
Dealer or otherwise in connection with the loan evidenced hereby, (b) the
maturity of the Obligations is accelerated in whole or in part, or (c) all or
part of the Obligations shall be prepaid, so that under any of such
circumstances the amount of interest contracted for, shared or received in
connection with the loan evidenced hereby, would exceed the Maximum Interest
Rate, then in any such event (1) the provisions of this paragraph shall govern
and control, (2) neither Dealer nor any other person or entity now or hereafter
liable for the payment of the Obligations shall be obligated to pay the amount
of such interest to the extent that it is in excess of the Maximum Interest
Rate, (3) any such excess which may have been collected shall be either applied
as a credit against the then unpaid principal amount of the Obligations or
refunded to Dealer, at FINOVA's option, and (4) the effective rate of interest
shall be automatically reduced to the Maximum Interest Rate. It is further
agreed, without limiting the generality of the foregoing, that to the extent
permitted by the Applicable Usury Law; (x) all calculations of interest which
are made for the purpose of determining whether such rate would exceed the
Maximum Interest Rate shall be made by amortizing, prorating, allocating and
spreading during the period of the full stated term of the loan evidenced
hereby, all interest at any time contracted for, charged or received from Dealer
or otherwise in connection with such Advance; and (y) in the event that the
effective rate of interest on the loan should at any time exceed the Maximum
Interest Rate, such excess interest that would otherwise have been collected had
there been no ceiling imposed by the Applicable Usury Law shall be paid to
FINOVA from time to time, if and when the effective interest rate on the loan
otherwise falls below the Maximum Interest Rate, to the extent that interest
paid to the date of calculation does not exceed the Maximum Interest Rate, until
the entire amount of interest which would otherwise have been collected had
there been no ceiling imposed by the Applicable Usury Law has been paid in full.
Dealer further
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agrees that should the Maximum Interest Rate be increased at any time
hereafter because of a change in the Applicable Usury Law, then to the extent
not prohibited by the Applicable Usury Law, such increases, if applicable,
shall apply to all indebtedness evidenced hereby regardless of when incurred;
but, again to the extent not prohibited by the Applicable Usury Law, should
the Maximum Interest Rate be decreased because of a change in the Applicable
Usury Law, such decreases shall not apply to the indebtedness evidenced
hereby regardless of when incurred.
4. COLLATERAL
4.1 SECURITY FOR ADVANCES. To secure the prompt and complete payment
and performance of the Advances, Dealer hereby grants to FINOVA a purchase-money
lien on, and security interest in, the Collateral.
4.2 [INTELLIONALLY DELETED]
4.3 COLLATERAL IN POSSESSION OF OTHERS. If any Collateral is at any
time in the possession or control of any warehouseman, bailee or any of Dealer's
agents or processors, Dealer shall notify such Person of FINOVA's security
interest in such Collateral and, upon FINOVA's request, instruct them to hold
all such Collateral for FINOVA's account subject to FINOVA's instructions. From
time to time, Dealer shall, upon FINOVA's request, execute and deliver
confirmatory written instructions pledging the Collateral to FINOVA, but
Dealer's failure to do so shall not affect or limit FINOVA's security interest
or other rights in and to the Collateral. Until the obligations have been fully
satisfied and FINOVA's obligation to make further Advances hereunder has
terminated, FINOVA's security interest in the Collateral shall continue in full
force and in effect.
5. REPRESENTATIONS. Dealer represents and warrants that:
5.1 DUE AUTHORIZATION. Dealer is a limited partnership duly organized
and existing under the laws of the State set forth in the Schedule, is qualified
and authorized to do business and is in good standing in all states in which
such qualifications and good standings are necessary in order for it to conduct
its business and own its property, except where the failure to be so qualified
or authorized would not have a material adverse effect on its business, assets,
operation or condition, financial or otherwise. Further Dealer has all requisite
power and authority to conduct its business as presently conducted to own its
property and except where the failure to be so qualified or authorized would not
have a material adverse effect on its business assets, operation or condition,
financial or otherwise, and to execute and deliver each of the Loan Documents to
which it is a party and perform all of its obligations thereunder, has not taken
any steps to wind up, dissolve or otherwise liquidate its assets and the
execution, delivery and performance of this Agreement have been duly authorized
and are not in contravention of any law, organizational documents of Dealer, or
any arrangements of Dealer with any Vendor.
5.2 OTHER NAMES. Dealer has not, during the preceding five (5) years,
been known by or used any other corporate or fictitious name except as set forth
in the Schedule, nor has Dealer been the surviving entity of a merger or
consolidation or acquired all or substantially all of the assets of any person
during such time, except as set forth in the Schedule;
5.3 BINDING OBLIGATION. Each of the Loan Documents to which Dealer is a
party is the legal, valid and binding obligation of Dealer enforceable against
Dealer in accordance with its terms, except as may be limited by bankruptcy,
insolvency and other similar laws effecting creditors rights generally;
5.4 INTANGIBLE PROPERTY. Dealer possesses adequate Trademarks,
Copyrights, Licenses and Patents for the present and planned future conduct of
its business without any known conflict with the rights of others, and each is
valid and has been duly registered or filed with the appropriate governmental or
regulatory authorities, except matters that would not have a material adverse
effect upon its business, assets, operation or condition, financial or
otherwise.;
5.5 CAPITAL. Dealer has capital sufficient to conduct its business, is
able to pay its debts as they mature and owns property having a fair salable
value greater than the amount required to pay all of its debts (including
contingent debts);
5.6 MATERIAL LITIGATION. Except as disclosed on the Schedule, Dealer
has no pending, or to its knowledge threatened, litigation, actions or
proceedings which would materially and adversely
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affect its business, assets, operations, condition, financial or otherwise,
or the Collateral or any of FINOVA's interests therein;
5.7 TITLE; SECURITY INTERESTS OF FINOVA. Upon purchase and taking
possession thereof, Dealer will have good, indefeasible and merchantable title
to the Collateral and, upon the execution and delivery of the Loan Documents,
the timely filing of UCC-1 Financing Statements in the appropriate offices and
the timely delivery of written notification to the Primary Lender, this
Agreement and such documents shall create valid and perfected first priority
liens in and to the Collateral. Except as disclosed on the Schedule, there are
no liens or encumbrances with respect to any portion of the Collateral;
5.8 RESTRICTIVE AGREEMENTS; LABOR CONTRACTS. Dealer is not a party or
subject to any contract or subject to any charge, corporate restriction,
judgment, decree or order materially and adversely affecting its business,
assets, operations, condition, financial or otherwise, or which restricts its
right or ability to incur the Obligations, and it is not party to any labor
dispute. In addition, no labor contract is scheduled to expire during the Term
of this Agreement, except as disclosed to FINOVA in writing prior to the date
hereof;
5.9 LAWS. Dealer is not in violation of any applicable statute,
regulation, ordinance or any order of any court, tribunal or governmental
agency, in any respect materially and adversely affecting the Collateral;
5.10 CONSENTS. Dealer has obtained or caused to be obtained or issued
any required consent of a governmental agency or other Person in connection with
the financing contemplated hereby;
5.11 DEFAULTS. Dealer is not in default with respect to any note,
indenture, loan agreement, mortgage, lease, deed or other agreement to which it
is a party or by which it or its assets are bound, nor has any event occurred
which, with the giving of notice or the lapse of time, or both, would cause such
a default, if the existence of such defaults, singly or in the aggregate, would
during a period of twelve (12) months, result in losses which would exceed an
amount equal to or in excess of fifteen (15%) percent of the consolidated net
worth of Guarantor (exclusive of ▇▇▇▇▇▇▇▇▇▇.▇▇▇) as reflected upon the most
recent financial statements delivered to FINOVA hereunder;
5.12 FINANCIAL CONDITION. The financial statements of the Dealer
heretofore delivered to FINOVA fairly present Dealer's financial condition and
results of operations and those of such other Persons described therein as of
the date thereof in accordance with GAAP; there are no material omissions from
such financial Statements or other facts or circumstances not reflected in such
Financial Statements; and there has been no material and adverse change in such
financial condition or operations since the dates of such financial statements,
except with respect to restructuring charges relating to "Management's
Restructuring Plan" (as such term is defined in the Primary Loan Agreement), or
as disclosed in the Primary Loan Agreement;
5.13 ERISA. None of Dealer, any ERISA Affiliate, or any Plan is or has
been in violation of any of the provisions of ERISA, any of the qualification
requirements of IRC Section 401(a) or any of the published interpretations
thereunder, nor has Dealer or any ERISA Affiliate received any notice to such
effect. No notice of intent to terminate a Plan has been filed under Section
4041 of ERISA, nor has any Plan been terminated under ERISA. The PBGC has not
instituted proceedings to terminate, or appointed a trustee to administer, a
Plan. No lien upon the assets of Dealer has arisen with respect to a Plan. No
prohibited transaction or Reportable Event has occurred with respect to a Plan.
Neither Dealer nor any ERISA Affiliate has incurred any withdrawal liability
with respect to any Multiemployer Plan. Dealer and each ERISA Affiliate have
made all contributions required to be made by them to any Plan or Multiemployer
Plan when due. There is no accumulated funding deficiency in any Plan, whether
or not waived;
5.14 TAXES. Dealer has filed all tax returns and such other reports as
it is required by law to file and has paid or made adequate provision for the
payment on or prior to the date when due of all taxes, assessments and similar
charges that are due and payable;
5.15 LOCATIONS; FEDERAL TAX ID NO. Dealer's chief executive office and
the offices and locations where it keeps the Collateral (except for Inventory in
transit) are at the locations set forth in the Schedule, except to the extent
that such locations may have been changed after notice to FINOVA in
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accordance with Section 6.10 hereof; Dealer's federal tax identification
number is as shown in the Schedule;
5.16 BUSINESS RELATIONSHIPS. There exists no actual or threatened
termination, cancellation or limitation of, or any modification or change in,
the business relationship between Dealer and any customer or any group of
customers whose purchases individually or in the aggregate are material to the
business of Dealer, or with any material supplier, and there exists no present
condition or state of facts or circumstances which would materially and
adversely affect Dealer or prevent Dealer from conducting such business after
the consummation of the transactions contemplated by this Agreement in
substantially the same manner in which it has heretofore been conducted;
5.17 INDEPENDENT OBLIGATIONS. This Agreement and all Advances,
extensions of credit, and other financial accommodations of FINOVA to Dealer,
are completely independent of Dealer's or FINOVA's arrangements with the Vendor,
or any other Vendor, and neither FINOVA nor any Vendor is an agent for or acting
on behalf of the other. FINOVA makes no representation with respect to any of
the Financed Inventory or any materials provided by the Vendor with respect to
the Financed Inventory;
5.18 RELIANCE ON VENDOR. Dealer has relied exclusively upon the Vendor
with respect to the quality, merchantability, and fitness for any particular
purpose of the Financed Inventory purchased from the Vendor. Dealer has
determined with the Vendor the price, quantity and other terms with respect to
the sale of Financed Inventory to Dealer. Dealer has not relied, and will not
rely, on any statements, promises, or representations, oral or written, made by
Vendor (whether or not purported to be on FINOVA's behalf) relating to any of
the Advances;
5.19 [Intentionally omitted]
5.20 REAFFIRMATIONS. Each request for a loan made by Dealer pursuant to
this Agreement shall constitute (i) an automatic representation and warranty by
Dealer to FINOVA that there does not then exist any Event of Default and (ii) a
reaffirmation as of the date of said request of all of the representations and
warranties of Dealer contained in this Agreement and the other Loan Documents.
6. COVENANTS. Dealer covenants, acknowledges, warrants and agrees that:
6.1 OWNERSHIP, CONDITION AND USE OF COLLATERAL. Except for sales in the
ordinary course of Dealer's business, and the junior liens of (i) the lenders
under the Primary Loan Agreement, and (ii) Vendor, Dealer is and shall continue
to be the owner of all of the Collateral, free and clear of all liens and
encumbrances.
6.2 ACCURATE INFORMATION. All information provided by Dealer to FINOVA
in connection with each Advance is, and will be, complete and accurate in every
material respect; provided, however that absent manifest error or fraud, nothing
herein shall be deemed to relieve FINOVA or Dealer from their respective
obligations under the Tri-Party Agreement.
6.3 VENDOR AUTHORIZATIONS. Vendor is authorized to issue directly to
FINOVA, and/or FINOVA's agents, credit memos, invoices, purchase orders,
certificates of origin and other documents and information relating to Dealer's
acquisition of Financed Inventory from Dealer.
6.4 INSURANCE. Dealer shall procure and maintain theft, burglary and
fire and other casualty insurance containing so-called extended coverage
insurance, insuring the Collateral, all of which insurance shall be in such
reasonable amounts and written by insurers and with lender's loss payee,
additional insured, and other endorsements satisfactory to FINOVA, and shall be,
if adjustable, adjustable by FINOVA, and payable to and for the benefit of
Dealer, the Primary Lender, and FINOVA as their interests may appear. Dealer
shall pay all premiums as and when due, and upon FINOVA's request, shall furnish
FINOVA with evidence satisfactory to FINOVA of its payment of premiums for such
policies or certificates evidencing its
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compliance with such insurance requirements. If Dealer fails to comply with
this section, FINOVA may (but shall not be required to) procure such
insurance and endorsements at Dealer's expense and charge the cost thereof to
Dealer's Advance account as an Obligation.
6.5 CONSENTS. Dealer has obtained or caused to be obtained or issued
any required consent of a governmental agency, the Primary Lender and any other
lender, or other person in connection with the financing contemplated by this
Agreement. If requested by FINOVA, Dealer shall exercise commercially reasonable
efforts to furnish to FINOVA waivers from the lessors, bailors and/or mortgagees
of all locations where any Collateral is located.
6.6 [INTENTIONALLY DELETED]
6.7 LIENS. Other than the purchase money security interest in favor of
FINOVA created hereby and the junior liens of (i) the lenders under the Primary
Loan Agreement, and (ii) Vendor, Dealer shall not create, incur, assume or
permit to exist any lien or encumbrance upon any of the Collateral, whether now
owned or hereafter acquired.
6.8 FURTHER ASSURANCES. Dealer shall do all acts and execute and
deliver all writings FINOVA may at any time require to protect or enforce
FINOVA's interests, rights and remedies created by, provided in or emanating
from, this Agreement.
6.9 NOTICES. Within five days of acquiring knowledge thereof, Dealer
shall notify FINOVA in writing of (i) any change in any information provided by
Dealer to FINOVA in connection with any of the Advances or the Loan Documents,
OTHER than as outlined in the Tri-Party Agreement, (ii) any change in the
location of any of the Collateral or other matter materially affecting any of
the Collateral, (iii) any matter which has or may have a material adverse effect
on Dealer's business, assets, operations or financial condition, (iv) any
substantial loss, theft, damage, or destruction of any of the Collateral, or (v)
any matter which, with the giving of notice or the passage of time, or both,
would constitute an Event of Default.
6.10 REPORTING REQUIREMENTS. Dealer shall furnish FINOVA, upon request,
such information and statements as FINOVA shall request from time to time
regarding Dealer's business affairs, financial condition and the results of its
operations. Without limiting the generality of the foregoing, Dealer shall
provide FINOVA with those reports identified in the Schedule as set forth in the
Schedule.
6.11 PRIMARY LOAN AGREEMENT. Dealer shall timely perform each and every
term, condition and covenant as and when the same are to be performed under the
Primary Loan Agreement. In the event that the Primary Loan Agreement shall be
amended, modified or terminated, Dealer shall give FINOVA prompt, detailed
written information concerning the same together with true, correct and complete
copies of all written documentation evidencing the same, and within thirty (30)
days of receipt of all such information, FINOVA may elect, to terminate this
Agreement by providing Dealer with no less than thirty (30) days prior written
notice of its intention to so terminate. If FINOVA elects to terminate this
Agreement pursuant to the provisions of the preceding sentence and provided no
Event of Default has occurred, FINOVA shall waive the Early Termination Fee as
described in the Schedule, and other than the repayment of Advances which shall
be due and payable in the ordinary course as set forth in the Schedule, all
other Obligations shall become immediately due and payable in full in
immediately available funds upon the effective date of such termination.
6.12 TRI-PARTY AGREEMENT. Dealer shall timely perform each and every
term, condition and covenant as and when the same are to be performed under the
Tri-Party Agreement.
6.13 FINANCIAL COVENANTS. Dealer shall comply with each and all of the
financial covenants as set forth in the Primary Loan Agreement.
6.14 COLLATERAL MAINTENANCE REQUIREMENT. Dealer shall comply with the
Collateral Maintenance requirement as set forth in the Schedule.
6.15 Y2K COMPLIANCE. Dealer shall take all action necessary to assure
that there will be no material adverse change to Dealer's business by reason of
the advent of the year 2000, including without limitation that all
computer-based systems, embedded microchips and other processing
-8-
capabilities effectively recognize and process dates after December 31, 1999.
At FINOVA's request, Dealer shall provide to FINOVA assurance reasonably
acceptable to FINOVA that Dealer's computer-based systems, embedded
microchips and other processing capabilities are year 2000 compatible.
6.16 REVOCATION OF ACCOMMODATION PARTY GUARANTY. In the event that the
Accommoda-tion Party revokes, or reduces the amount of, its guaranty of the
Obligations, FINOVA may, at its election, reduce the Total Facility to Fifty
Million ($50,000,000) Dollars within thirty (30) days of receipt of the
Accommodation party's notice to FINOVA of such termination or reduction. FINOVA
will use its best efforts to obtain another guarantor or accommodation party, or
participant or participants for indebtedness in excess of Fifty Million
($50,000,000) Dollars. Should FINOVA be unable to find another guarantor,
accommodation party, participant or participants and should FINOVA reduce the
Total Facility in the event the Accommodation party reduces its guaranty and
provided no Event of Default has occurred, Dealer has the right to terminate the
Total Facility within thirty (30) days of notice of reduction in the Total
facility by FINOVA. FINOVA shall waive the Early Termination Fee as provided in
the Schedule pursuant to the provisions of the preceding sentence, and other
than the repayment of the Advances which shall be due and payable in the
ordinary course as set forth in the Schedule, all other Obligations shall become
immediately due and payable in full in immediately available funds upon the
effective date of such termination.
7. DEFAULTS AND REMEDIES.
7.1 EVENTS OF DEFAULT. Any one or more of the following events shall constitute
an Event of Default under this Agreement:
(a) Dealer fails to pay all or any part of the Obligations within three (3)
business days of written notice by FINOVA when due and payable at stated
maturity, upon acceleration or otherwise;
(b) Dealer or any other Loan Party fails or neglects to perform, keep, or
observe in any material respect any term, provision, condition, covenant or
agreement contained in any Loan Document to which Dealer or such other Loan
Party is a party, and such default continues for a period of thirty (30) days
after written notice thereof has been given to Dealer by FINOVA ;
(c) An Event of Default shall have occurred under the Primary Loan Agreement,
and the payment of the indebtedness thereunder shall have been accelerated;
(d) [Intentionally omitted]
(e) The value or priority of FINOVA's purchase money security interest in the
Collateral is materially impaired;
(f) Any portion of Dealer's assets is seized, attached, subjected to a writ or
distress warrant, is levied upon or comes into the possession of any judicial
officer, the value of which assets would exceed an amount equal to or in excess
of fifteen (15%) percent of the consolidated net worth of Guarantor (exclusive
of ▇▇▇▇▇▇▇▇▇▇.▇▇▇) as reflected upon the most recent financial statements
delivered to FINOVA hereunder, unless such action is stayed and such attachment
is dismissed within thirty (30) days;
(g) Dealer shall generally not pay its debts as they become due or shall enter
into any agreement (whether written or oral), or offer to enter into any
agreement, with all or a significant number of its creditors regarding any
moratorium or other indulgence with respect to its debts or the participation of
such creditors or their representatives in the supervision, management or
control of the business of Dealer;
(h) Any bankruptcy or other insolvency proceeding is commenced by Dealer, or any
such proceeding is commenced against Dealer and remains undischarged or unstayed
for sixty (60) days;
(i) Other than those with respect to the Collateral and then only to the extent
permitted hereunder, any notice or notices of lien, levy or assessment, the
value of which assets which would be adversely affected by such lien, levy or
assessment would exceed an amount equal to or in excess of fifteen (15%) percent
of the consolidated net worth of Guarantor (exclusive of ▇▇▇▇▇▇▇▇▇▇.▇▇▇) as
reflected upon the most recent financial statements delivered to FINOVA
hereunder;
(j) Any judgments are entered against Dealer, the value of which would exceed an
amount equal to or in excess of fifteen (15%) percent of the consolidated net
worth of Guarantor (exclusive of ▇▇▇▇▇▇▇▇▇▇.▇▇▇) as reflected upon the most
recent financial statements
-9-
delivered to FINOVA hereunder, unless each such judgment or judgments are
stayed and each such judgment is dismissed within thirty (30) days of the
entry thereof;
(k) Any default shall occur under any material agreement between Dealer and any
third party, which results in the acceleration by such third party of any
indebtedness of Dealer to such third party. For the purposes of this provision,
the term "material agreement" shall mean any agreement which gives any Person
the right to accelerate the indebtedness of the Dealer thereunder in an amount
equal to or in excess of fifteen (15%) percent of the consolidated net worth of
Guarantor (exclusive of ▇▇▇▇▇▇▇▇▇▇.▇▇▇) as reflected upon the most recent
financial statements delivered to FINOVA hereunder;
(l) Any representation or warranty made or deemed to be made by Dealer or any
other Loan Party in any Loan Document, or any other statement, document or
report made or delivered to FINOVA in connection with the transactions
contemplated thereby (including, without limitation, any representation or
warranty made by a Vendor on Dealer's behalf) shall prove to have been
misleading in any material respect; or
(m) The Guarantor revokes, terminates or attempts to revoke or terminate its
guaranty or any security therefor, or becomes subject to any bankruptcy or other
insolvency proceeding, is dissolved, liquidated, merged or reorganized (except
where the Guarantor is the surviving entity), or terminated.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, FINOVA RESERVES THE
RIGHT TO CEASE MAKING ANY ADVANCES OR ADVANCES IF AN EVENT OF DEFAULT HAS
OCCURRED AND IS CONTINUING.
7.2 REMEDIES. Upon the occurrence of an Event of Default, FINOVA may, at its
option and in its Permitted Discretion and in addition to all of its other
rights under the Loan Documents, terminate this Agreement and declare all of the
Advances to be immediately payable in full. FINOVA shall also have all of its
rights and remedies under applicable law, including, without limitation, the
default rights and remedies of a secured party under the Code and upon the
occurrence of an Event of Default, Dealer hereby consents to the appointment of
a receiver by FINOVA in any action initiated by FINOVA pursuant to this
Agreement and to the jurisdiction and venue set forth in SECTION 9.15, and
Dealer waives notice and posting of a bond in connection therewith. Further,
FINOVA may, at any time, take possession of the Collateral and keep it on
Dealer's premises, at no cost to FINOVA, or remove any part of it to such other
place(s) as FINOVA may desire, or Dealer shall, upon FINOVA's demand, at
Dealer's sole cost, assemble the Collateral and make it available to FINOVA at a
place reasonably convenient to FINOVA. FINOVA may sell and deliver any
Collateral at public or private sales, for cash, upon credit or otherwise, at
such prices and upon such terms as FINOVA deems advisable, at FINOVA's
discretion, and may, if FINOVA deems it reasonable, postpone or adjourn any sale
of the Collateral by an announcement at the time and place of sale or of such
postponed or adjourned sale without giving a new notice of sale. Dealer agrees
that FINOVA has no obligation to preserve rights to the Collateral or ▇▇▇▇▇▇▇▇
any Collateral for the benefit of any Person. FINOVA is hereby granted a license
or other right to use, without charge, Dealer's trademarks, copyrights, licenses
and patents or any similar property, in completing production, advertising or
selling any Collateral and Dealer's rights under all licenses and all franchise
agreements shall inure to FINOVA's benefit. Any requirement of reasonable notice
shall be met if such notice is mailed postage prepaid to Dealer at its address
set forth in the heading to this Agreement at least ten (10) days before sale or
other disposition. The proceeds of sale shall be applied, first, to all
reasonable attorneys fees and other expenses of sale, and second, to the
Obligations in such order as FINOVA shall elect, in its sole discretion. FINOVA
shall return any excess to Dealer and Dealer shall remain liable for any
deficiency to the fullest extent permitted by law. FINOVA shall also have the
right to reduce the Total Facility amount, or to modify the terms and conditions
upon which FINOVA is willing to consider making advances under the Total
Facility.
8. EXPENSES.
So long as any Advance remains outstanding and this Agreement remains in effect,
Dealer shall promptly reimburse FINOVA for all reasonable costs, fees and
expenses incurred by FINOVA in connection with the negotiation, preparation,
execution, delivery, administration, amendment, and enforcement of each of the
Loan Documents, including, but not limited to, the attorneys' and paralegals'
fees. Notwithstanding the foregoing, FINOVA acknowledges and agrees
-10-
that the amount of all such costs, fees and expenses as of the date of
execution hereof shall not exceed the amount of the Facility Fee as defined
in the Schedule.
9. MISCELLANEOUS.
9.1 EXAMINATION OF RECORDS; FINANCIAL REPORTING. FINOVA shall at all reasonable
times have full access to and the right to examine, audit, make abstracts and
copies from and inspect Dealer's records, files, books of account and all other
documents, instruments and agreements relating to the Collateral and the right
to check, test and appraise the Collateral. Dealer shall furnish FINOVA, upon
request and at the times specified by FINOVA in FINOVA's Permitted Discretion,
such information and statements as FINOVA shall request from time to time
regarding Dealer's business affairs, financial condition and the results of its
operations. Failure to provide any of the requested information and statements
to FINOVA at the time specified by FINOVA shall be an Event of Default. If any
of the Advances are guaranteed, Dealer shall cause the Guarantor to deliver to
FINOVA such information and statements as FINOVA shall request from time to time
regarding Guarantor's financial condition.
9.2 TERM; TERMINATION. The term of this Agreement and the termination rights,
duties and obligations of the parties are as set forth in the Schedule. Subject
to the obligation of the Dealer to pay the Early Termination Fee as set forth in
the Schedule (except as otherwise expressly provided herein), either FINOVA or
Dealer may terminate the Total Facility at any time and for any reason upon no
less than thirty (30) days prior written notice to the of other their intention
to so terminate the Total Facility. Upon the effective date of termination,
other than the repayment of Advances which shall be due and payable in the
ordinary course as set forth in the Schedule, all other Obligations shall become
immediately due and payable in full in immediately available funds
9.3 RECOURSE TO SECURITY; CERTAIN WAIVERS. All Advances shall be payable by
Dealer as provided for herein and, in full, at the termination of this
Agreement; recourse to security shall not be required at any time. Dealer waives
presentment and protest of any instrument and notice thereof, notice of default
and, to the extent permitted by applicable law, all other notices to which
Dealer might otherwise be entitled.
9.4 NO WAIVER BY FINOVA. Neither FINOVA's failure to exercise any right, remedy
or option under this Agreement, any supplement, the Loan Documents or other
agreement between FINOVA and Dealer nor any delay by FINOVA in exercising the
same shall operate as a waiver. An Event of Default shall exist or continue or
be continuing until such Event of Default is waived in writing by FINOVA as
herein provided. No waiver by FINOVA shall be effective unless in writing and
then only to the extent stated. No waiver by FINOVA shall affect its right to
require strict performance of this Agreement. FINOVA's rights and remedies shall
be cumulative and not exclusive.
9.5 BINDING ON SUCCESSOR AND ASSIGNS. All terms, conditions, promises,
covenants, provisions and warranties shall inure to the benefit of and bind
FINOVA's and Dealer's respective representatives, successors and assigns.
9.6 SEVERABILITY. If any provision of this Agreement shall be prohibited or
invalid under applicable law, it shall be ineffective only to such extent,
without invalidating the remainder of this Agreement.
9.7 AMENDMENTS; ASSIGNMENTS. This Agreement may not be modified, altered or
amended, except by an agreement in writing signed by Dealer and FINOVA. Dealer
may not sell, assign or transfer any interest in this Agreement or any other
Loan Document, or any portion thereof, including, without limitation, any of
Dealer's rights, title, interests, remedies, powers and duties hereunder or
thereunder. Dealer hereby consents to FINOVA's participation, sale, assignment,
transfer or other disposition, at any time or times hereafter, of this Agreement
and any of the other Loan Documents, or of any portion hereof or thereof,
including, without limitation, FINOVA's rights, title, interests, remedies,
powers and duties hereunder or thereunder. In connection therewith, FINOVA may
disclose all documents and information which FINOVA now or hereafter may have
relating to Dealer or Dealer's business. To the extent that FINOVA assigns its
rights and obligations hereunder to a third party, FINOVA shall thereafter be
released from such assigned obligations to Dealer and such assignment shall
effect a novation between Dealer and such third party.
-11-
9.8 INTEGRATION. This Agreement, together with the Schedule (which is a part
hereof) and the other Loan Documents, reflect the entire understanding of the
parties with respect to the transactions contemplated hereby.
9.9 SURVIVAL. All of the representations and warranties of Dealer contained in
this Agreement shall survive the execution, delivery and acceptance of this
Agreement by the parties. No termination of this Agreement or of any guaranty of
the Obligations shall affect or impair the powers, obligations, duties, rights,
representations, warranties or liabilities of the parties hereto and all shall
survive any such termination.
9.10 NOTICES. Any written notice, consent or other communication provided for in
this Agreement shall be delivered personally (effective upon delivery), via
facsimile (effective upon confirmation of transmission), via overnight courier
(effective the next business day after dispatch if instructed to deliver on next
business day) or via U.S. Mail (effective 3 days after mailing, postage prepaid,
first class) to each party at its address(es) and/or facsimile number(s) set
forth below its signature, or to such other address as either party shall
specify to the other in writing from time to time.
9.11 DISBURSEMENT. All Advances shall be made directly to the Vendor in
accordance with the terms of the invoices, all as more particularly provided in
the Schedule.
9.12 CAPTIONS. The Section titles contained in this Agreement are without
substantive meaning and are not part of this Agreement.
9.13 COUNTERPARTS; FACSIMILE EXECUTION. This Agreement may be executed in one or
more counterparts, each of which taken together shall constitute one and the
same instrument, admissible into evidence. Delivery of an executed counterpart
of this Agreement by facsimile shall be equally as effective as delivery of a
manually executed counterpart of this Agreement. Any party delivering an
executed counterpart of this Agreement by facsimile shall also deliver a
manually executed counterpart of this Agreement, but the failure to deliver a
manually executed counterpart shall not affect the validity, enforceability, and
binding effect of this Agreement.
9.14 TIME OF ESSENCE. Time is of the essence for the performance by Dealer under
this Agreement.
9.15 GOVERNING LAW; JURISDICTION; VENUE. THIS AGREEMENT, INCLUDING WITHOUT
LIMITATION ENFORCEMENT OF THE OBLIGATIONS, SHALL BE INTERPRETED IN ACCORDANCE
WITH THE INTERNAL LAWS (AND NOT THE CONFLICT OF LAWS RULES) OF THE STATE OF
ARIZONA GOVERNING CONTRACTS TO BE PERFORMED ENTIRELY WITHIN SUCH STATE. DEALER
HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT
LOCATED WITHIN THE COUNTY OF MARICOPA, THE STATE OF ARIZONA OR, AT THE SOLE
OPTION OF FINOVA, IN ANY OTHER COURT IN WHICH FINOVA SHALL INITIATE LEGAL OR
EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE MATTER
IN CONTROVERSY. DEALER WAIVES ANY OBJECTION OF FORUM NON CONVENIENS AND VENUE.
9.16 SERVICE OF PROCESS; WAIVERS. DEALER WAIVES PERSONAL SERVICE OF ANY AND ALL
PROCESS UPON IT, AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY
MESSENGER, CERTIFIED MAIL OR REGISTERED MAIL DIRECTED TO DEALER AT THE ADDRESS
SET FORTH BELOW ITS SIGNATURE HERETO AND SERVICE SO MADE SHALL BE DEEMED TO BE
COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT OR THREE (3) DAYS AFTER THE SAME
SHALL HAVE BEEN POSTED TO DEALER'S ADDRESS. DEALER FURTHER WAIVES ANY RIGHT IT
MAY OTHERWISE HAVE TO COLLATERALLY ATTACK ANY JUDGMENT ENTERED AGAINST IT.
9.17 MUTUAL WAIVER OF RIGHT TO JURY TRIAL. FINOVA AND DEALER EACH HEREBY WAIVES
THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT
OF, OR IN ANY WAY RELATING TO: (I) THIS AGREEMENT; (II) ANY OTHER PRESENT OR
FUTURE INSTRUMENT OR AGREEMENT BETWEEN FINOVA AND DEALER; OR (III) ANY CONDUCT,
ACTS OR OMISSIONS OF FINOVA
-12-
OR DEALER OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS
OR ANY OTHER PERSONS AFFILIATED WITH FINOVA OR DEALER; IN EACH OF THE
FOREGOING CASES, WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE.
IN WITNESS WHEREOF, intending to be legally bound hereby, the parties have
caused this Agreement to be executed as of the date first written above.
COMPUSA STORES LP
By: CompUSA GP Holdings Company,
its sole general partner
By: /s/ J. ▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------------
J. ▇▇▇▇▇▇ ▇▇▇▇, Senior Vice President
Notice address: Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, General
Counsel
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
FINOVA CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, Vice President,
Credit Manager
Notice Address: FINOVA Capital Corporation
Attn: Portfolio Manager
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
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[GRAPHIC OMITTED]
SCHEDULE TO SECURED WHOLESALE FINANCE AGREEMENT
DEALER: COMPUSA STORES LP
EIN: ▇▇-▇▇▇▇▇▇▇
ADDRESS: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
DATE: NOVEMBER 3, 1999
This Schedule forms an integral part of the Secured Wholesale Finance Agreement
between the above Dealer and FINOVA Capital Corporation ("FINOVA") dated the
above date, and all references herein and therein to this "AGREEMENT" shall be
deemed to refer to said Agreement and to this Schedule.
================================================================================
DEFINITIONS (SECTION 1):
"ACCOMMODATION PARTY" means Compaq Computer Corporation, a Delaware
corporation.
"GUARANTOR" means CompUSA Inc., a Delaware corporation.
================================================================================
TOTAL FACILITY (SECTION 2.1):
An amount not in excess of $85,000,000.
================================================================================
TERM (SECTION 9.2):
The initial term shall commence as of the date of the Agreement and
shall expire on the day immediately preceding the second annual anniversary
thereof (the "Maturity Date"), unless extended or renewed by FINOVA in its
Permitted Discretion prior to such Maturity Date for an additional term of one
(1) year(s). FINOVA agrees to provide Dealer with its notice of its intent to
renew or extend the Loan no less
1
than ninety (90) days prior to the applicable Maturity Date. Unless the
Maturity Date is extended or renewed, other than the repayment of Advances
which shall be due and payable in the ordinary course as set forth in the
Tri-Party Agreement, all other Obligations are immediately due and payable to
FINOVA in immediately available funds on the Maturity Date.
================================================================================
CONDITIONS PRECEDENT (SECTION 2.3):
As conditions precedent to the initial Loan, each of the following
conditions shall have been fulfilled or waived to the satisfaction of FINOVA in
its Permitted Discretion:
a. (a) Execution and delivery of the Loan Documents, including
without limitation:
- Secured Wholesale Finance Agreement
- Schedule
- Guaranty of CompUSA, Inc.
- Guaranty of Accommodation Party
- Tri-Party Agreement
- Notices by FINOVA to Senior Lender(s)
- InterCreditor Agreement
- Subordination Agreement
- Y2k Undertaking
- UCC-1 Financing Statements
- Such other documents, instruments and agreements as FINOVA
shall require
b. (b) For Dealer and each guarantor not a natural person, copies
of all organizational documents (Articles of Incorporation,
By-Laws, Certificate of Limited Partnership, Certificate of
Formation, Partnership Agreement, Operating Agreement, etc.)
together with all amendments thereto to the date hereof, and
copies of authorizing resolutions, certified by the secretary of
Dealer and such guarantor that the same are true, correct and
complete copies of the originals thereof and have not been amended
or rescinded to the date hereof.
c. Good standing and foreign qualification certificates for Dealer,
Guarantor, and the Accommodation Party.
c. (d) Evidence of casualty insurance in amounts at least equal
to the Loan Facility with loss payable endorsement to FINOVA and not
less than 30 days prior notice to FINOVA of cancellation or
modification..
d. (e) [Intentionally omitted]
e.
f. (f) With respect to the Dealer, FINOVA shall have conduced such
searches of the public record as it shall deem necessary or
appropriate in its permitted Discretion.
g. (g) Opinion of Dealer's counsel as to such matters as FINOVA
shall determine in its Permitted Discretion.
2
================================================================================
PAYMENT TERMS (SECTION 2.7)
All Advances shall be repaid in immediately available funds in
accordance with the following (each a "Payment Date"): (i) Advances be made
within forty (40) days of the date of the invoice therefor. Notwithstanding the
foregoing, at such time as the aggregate amount of the Obligations is (i) Seven
Million Five Hundred Thousand ($7,500,000) Dollars or greater in excess of (ii)
the aggregate value of the Financed Inventory (determined at the lower of cost
or market as determined by the accounting methods utilized by Dealer in
accordance with GAAP) in the possession of Dealer (the "COLLATERAL DEFICIT"),
Dealer shall within five (5) days of FINOVA's receipt of a monthly collateral
report reflecting such excess, repay in immediately available funds such portion
of the Obligations as is necessary to reduce the Obligations so that upon
receipt of such payment, the Collateral Deficit shall not exceed Seven Million
Five Hundred Thousand ($7,500,000) Dollars (a "PAYDOWN"). To the extent that a
Paydown occurs in respect of unpaid invoices which are at the time of the
Paydown less than thirty (30) days from their respective dates of issue, Dealer
shall be entitled to a discount of fifteen (15) basis points of the aggregate
amount of such invoices.
================================================================================
INTEREST RATE AND FEES (SECTION 3.1):
INTEREST RATE:
Provided that each Advance is paid on or before the respective
Payment Date, such Advances shall not bear interest as long as the
Vendor shall continue to support the transaction via Vendor
subsidy on the non-interest bearing period. In the event that the
subsidy provided by the Vendor to support the transaction is
reduced or increased, FINOVA shall have the right to fully and
completely pass through to Dealer any and all such additional
costs or savings. Any decrease in terms or increase in costs to
the Dealer as a result of Vendor support changes shall enable the
dealer to terminate the Agreement. Dealer will be responsible for
the lesser of: (i) the pro-rata share of the Early Termination Fee
(as hereinafter defined) for such year (i.e. the product of the
Early Termination Fee for such year times a fraction, the
numerator of which is the total number of days remaining in such
year and the denominator of which is 360; or (ii) Fifty (50%)
Percent of the Early Termination Fee for such year. Any payment
received after the respective Payment Date shall bear interest at
a rate equal to three (3) percent per annum in excess of the Base
Rate from the date such Advance was made.
AMOUNT OF FEES:
FACILITY FEE. As a condition precedent to Closing, Dealer shall
pay to FINOVA in immediately available funds a Facility Fee in an
amount equal to One Hundred Seventy Thousand ($170,000) Dollars
("FACILITY FEE"). The Facility Fee shall be deemed fully earned
and non-refundable at the time when due; provided, however that
this fee shall be credited by FINOVA against any of FINOVA's
documented reasonable legal fees and other reasonable
out-of-pocket expenses.
EARLY TERMINATION FEE. Either FINOVA or Dealer may terminate the
Total Facility at any time and for any reason upon no less than
thirty (30) days prior written notice to the of other their
intention to so terminate the Total Facility; provided, however
that if the Total Facility is so terminated, Dealer agrees to
compensate FINOVA for FINOVA's expenses and loss of anticipated
profits in accordance with the following: (i) an amount equal to
One-Half of One (0.005%) Percent of the Total Facility amount if
terminated prior to the first anniversary of the Closing Date; or
(ii) an amount equal to One Tenth of One (0.001%) Percent, if
terminated after the first anniversary of
3
the Closing Date, but prior to the end of the eighteenth month
following the Closing Date (each an "EARLY TERMINATION FEE").
================================================================================
REPRESENTATIONS (SECTION 5):
STATE OF ORGANIZATION (Section 5.1): Texas
STATES QUALIFIED TO DO BUSINESS (Section 5.1):
See, Exhibit 5.1.
DEALER'S NAMES (Sections 5.2):
Prior Corporate Names:
Fictitious Names:
LITIGATION (Section 5.6):
See Exhibit 5.6 attached
LIENS (Section 5.7):
See Exhibit 5.7 attached
LOCATIONS OF COLLATERAL (Section 5.15):
See Exhibit 5.15 attached
CHIEF EXECUTIVE OFFICE (Section 5.15): ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
AFFIRMATIVE COVENANTS (SECTION 6):
================================================================================
REPORTING REQUIREMENTS (Section 6.11)
Dealer shall furnish FINOVA, upon request, such information and
statements as FINOVA shall request from time to time regarding Dealer's business
affairs, financial condition and the results of its operations. Without limiting
the generality of the foregoing, Dealer shall provide FINOVA with:
(i) within twenty (20) days after the end of each fiscal period
perpetual inventory reports for all inventory (separately identifying the
Financed Inventory, and the location of all inventory and the Financed Inventory
individually) determined at the lower of cost or market as determined by the
accounting methods utilized by Dealer in accordance with GAAP;
4
(ii) within twenty (20) days after the end of each fiscal period of
each fiscal year (except for any fiscal period that is the last fiscal period of
a fiscal quarter), internally prepared consolidated balance sheet of Parent and
its consolidated subsidiaries as of the end of such fiscal period and the
related consolidated statements of operations for such fiscal period and for the
elapsed portion of the year ended with the last day of such fiscal period and a
consolidated statement of cash flows for the elapsed portion of the year ended.
With the last day of such fiscal period all prepared in accordance with GAAP.
(iii) within forty-five (45) days of the end of each of the first three
fiscal quarters of Dealer, Form 10Q of CompUSA Inc., as filed with the
Securities and Exchange Commission;
(iv) within ninety (90) days of the end of fiscal year, Form 10K of
CompUSA Inc., as filed with the Securities and Exchange Commission;
(v) no later than the end of the first quarter of each fiscal quarter
of each fiscal year, submit Annual Projections by fiscal quarter with respect to
such fiscal year; and
(vi) as and when required to be submitted to the Primary Lender under
the Primary Loan Agreement, true, correct, complete and originally executed
copies of any borrowing base certificate, compliance certificates, and other
similar certifications as required thereunder, showing Dealer's compliance with
each of the financial covenants set forth in the Primary Loan Agreement, and
stating whether any Event of Default has occurred or event which, with giving of
notice or the passage of time, or both, would constitute an Event of Default
thereunder.
FINANCIAL COVENANT (Section 6.13):
Dealer shall comply with all financial covenants required under
the Primary Loan Agreement.
COLLATERAL MAINTENANCE REQUIREMENT.
The Collateral Deficit shall at no time exceed Seven Million Five
Hundred Thousand ($7,500,000) Dollars; provided, however that if
Dealer's borrowing availability from Dealer's Primary Lender under
the Primary Loan Agreement is less than One Hundred Seventy-Five
Million ($175,000,000) Dollars, no Collateral Deficit shall be
permitted to exist. In the event that the Dealer's Primary Loan
Agreement is replaced, amended or modified, FINOVA and the Dealer
agree to enter into negotiations with the desired objective that
such provisions be adjusted or otherwise modified to fairly take
into account any such change. If no agreement can be reached
either party reserves their right to terminate the Agreement.
5
================================================================================
DISBURSEMENT (SECTION 9.11):
All Advances to be made hereunder shall be made for the account of
Dealer directly to Compaq Computer Corporation in accordance with
the payment terms of the invoices submitted to FINOVA to Dealer.
EXECUTED UNDER SEAL BY:
DEALER: FINOVA:
COMPUSA STORES LP FINOVA CAPITAL
BY: COMPUSA GP HOLDINGS COMPANY, CORPORATION
ITS SOLE GENERAL PARTNER
BY: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
BY: /s/ J. ▇▇▇▇▇▇ ▇▇▇▇ ----------------------------------
------------------------------------- (SEAL)
J. ▇▇▇▇▇▇ ▇▇▇▇, SENIOR VICE PRESIDENT TITLE: ▇▇▇▇▇▇▇ ▇▇▇▇▇, VICE PRESIDENT,
CREDIT MANAGER
6
STATE OF TEXAS
COUNTY OF DALLAS
THE FOREGOING SCHEDULE TO SECURED WHOLESALE FINANCE AGREEMENT WAS
ACKNOWLEDGED BEFORE ME THIS 3RD DAY OF NOVEMBER, 1999, BY COMPUSA GP HOLDINGS
COMPANY, A DELAWARE BUSINESS TRUST, THE SOLE GENERAL PARTNER OF COMPUSA STORES
LP, A TEXAS LIMITED PARTNERSHIP, ON BEHALF OF SUCH PARTNERSHIP.
▇▇▇▇▇▇▇ ▇▇▇▇▇
TITLE OR RANK:
---------------
SERIAL NUMBER, IF ANY:
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7
CORPORATE GUARANTY
TO: FINOVA Capital Corporation
Attn: Portfolio Manager
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
1. IDENTIFICATION.
This Guaranty is made by each of the undersigned, jointly and
severally if more than one, in your favor, in order to induce you to enter into
one or more notes, loan agreements and/or security agreements (herein, the
"Agreements"), with COMPUSA STORES L.P. (herein, the "Debtor"), or to otherwise
extend or continue financial accommodations in favor of the Debtor or to acquire
obligations or indebtedness owing by the Debtor.
2. GUARANTY OBLIGATION.
(a) We unconditionally guarantee to you and undertake the
obligations of a surety with respect to the following described obligations and
liabilities of the Debtor (herein, the "Debtor's Liabilities"):
(i) The prompt payment in full of any and all now existing
or hereafter arising indebtedness or obligations of the Debtor to you of every
kind or nature, whether acquired by you by negotiation, assignment or otherwise,
and whether direct or indirect, absolute on contingent, matured or unmatured, or
otherwise, and including without limitation all advances and other loans now or
at any time hereafter made by you to the Debtor under or secured by the
Agreements, or otherwise. WITHOUT LIMITATION, THE FOREGOING GUARANTY SHALL
EXTEND TO ANY OBLIGATIONS WHICH THE DEBTOR MAY INCUR TO YOU UNDER ANY AGREEMENT
OR BY REASON OF ANY OTHER FINANCIAL ACCOMMODATION BETWEEN YOU AND THE DEBTOR
MADE AFTER THE DATE HEREOF WHETHER OR NOT PRESENTLY CONTEMPLATED. WE
ACKNOWLEDGE THAT IT IS OUR RESPONSIBILITY TO OBTAIN FROM TIME-TO-TIME DIRECTLY
FROM THE DEBTOR SUCH INFORMATION AS WE MAY REQUIRE CONCERNING THE OBLIGATIONS
AND INDEBTEDNESS GUARANTEED HEREBY, WHICH RESPONSIBILITY IS REASONABLE IN LIGHT
OF OUR RELATIONSHIP WITH THE DEBTOR; and
(ii) The prompt, full and faithful performance and discharge
by the Debtor of each and every term, condition, agreement, representation,
warranty and provision on the part of the Debtor contained in any of the
Agreements or in any modification, amendment or substitution thereof or in any
other document or instrument evidencing or securing any obligation or
indebtedness of the Debtor to you.
(b) We shall, on your demand, reimburse you for all expenses,
collection charges, court costs and attorneys' fees incurred by you in
endeavoring to collect Debtor's Liabilities, and to enforce, protect or defend
any of your rights and remedies against us and/or the Debtor or against any
other person or entity primarily or secondarily liable for the obligations and
indebtedness guaranteed hereby (herein, an "Obligor"), or against or with
respect to any property, real or personal, now or hereafter granted to or
obtained by you as security for Debtor's Liabilities or for our liabilities and
obligations to you hereunder or for those of any Obligor (herein, "Secured
Property"), together with interest thereon until reimbursed at a rate equal to
three (3) percent above the rate of interest payable on the Debtor's Liabilities
guaranteed hereby (or the highest rate permitted by law) of the amount due by us
to you.
3. LIABILITY ABSOLUTE; WAIVERS.
(a) We shall pay all of the foregoing amounts and perform all of
the foregoing terms, covenants and conditions notwithstanding that any part or
all of the Agreements or other documents or instruments
evidencing the Debtor's Liabilities, or any financial accommodation for or
transaction with the Debtor, shall be invalid, void, voidable or otherwise
unenforceable, in whole or in part, as against the Debtor, any property of the
Debtor, or any of Debtor's creditors, including a trustee in bankruptcy of
Debtor or Debtor as a debtor-in-possession, including without limitation by
reason of any theory or provision of law or equity, statutory or otherwise,
relating to consideration, or the lack thereof, or to any alleged fraudulent,
preferential or other improper transfer or conveyance, and including further,
without limitation, by reason of failure by any person, including yourself, to
file any document or take any other action to make any of your rights against
the Debtor, any other Obligor or any property, pursuant to the Agreements or
otherwise, enforceable in accordance with their respective terms.
(b) You shall have the right from time to time, and at any time,
without notice to or consent from us, and without affecting, impairing or
discharging, in whole or in part, our obligations to you hereunder, to enter
into agreements with the Debtor or any other Obligor to modify, change or
supplement, in any respect whatsoever, any evidence of indebtedness, or any
agreement or transaction between you and the Debtor or between you and any other
Obligor, or any portion or provision of any thereof; to grant extensions of time
and other indulgences of any kind to the Debtor or other Obligor; to
compromise, release, substitute, exercise, enforce, or fail or refuse to
exercise or enforce any claims, rights or remedies of any kind which you may
have, at any time, against the Debtor or any other Obligor, or any portion
thereof, or with respect to any Secured Property; and to release, substitute or
surrender and to enforce, collect or liquidate any security of any kind held by
you at any time, and all of the foregoing whether done negligently, willfully or
otherwise.
(c) Our obligations to you shall not be affected, impaired or
discharged, in whole or in part, by reason of your failure to obtain, in the
first instance, rights against any person or entity, including without
limitation, the Debtor, or in or with respect to any property, or to protect,
perfect, continue or maintain any such rights.
(d) We waive notice of acceptance hereof and all notices and
demands of any kind to which we may otherwise be entitled including, without
limitation, all demands of payment and notice of nonpayment, protest and
dishonor, to us or to the Debtor, or to the makers or endorsers of any notes or
other instruments for which we are or may be liable hereunder, and further waive
notice of any adverse change in the Debtor's financial condition, the value of
any Secured Property, or any other fact which might materially increase our risk
to you hereunder.
(e) We waive any right to require you to, prior to proceeding
against us hereunder: (i) proceed against Debtor and/or any other Obligor; (ii)
proceed against or exhaust any Secured Property; or (iii) pursue any other
remedy which you may have.
4. PRIMARY NATURE OF OBLIGATIONS; NO SET-OFF.
Our liability to you hereunder is primary, absolute,
unconditional, continuing, direct and independent of the obligations of the
Debtor. Nothing shall discharge or satisfy our liability hereunder except the
full performance and payment of all of the Debtor's Liabilities. In the event
that all of Debtor's Liabilities shall have at any time been paid and performed
in full, this Guaranty and our obligations hereunder shall nevertheless remain
in full force and effect and be operative with respect to Debtor's Liabilities
incurred or arising at any time to times thereafter. We shall have no right of
subrogation, reimbursement or indemnity whatsoever and no right of recourse to
or with respect to the Debtor and/or any property of the Debtor, unless and
until all of Debtor's Liabilities have been paid and performed in full. Our
liability to you hereunder shall not be subject to set-off, counterclaim,
crossclaim or defense arising out of or by virtue of any claim or right which we
may at any time have against the Debtor or other Obligor, or which we may at any
time have against you in connection with this or any other transaction with or
acquired by you.
5. CONTINUING NATURE OF GUARANTY.
(2)
Our obligations under the Guaranty shall be continuing. This
instrument shall continue in full force and effect until our obligations to you
are terminated by the actual receipt by you of written notice from us of such
termination. Such termination shall be applicable only to such of Debtor's
Liabilities as have their inception thereafter. Specifically, without
limitation, we shall, after and notwithstanding such termination, remain
obligated to you under the term hereof for: (i) all of Debtor's Liabilities
incurred prior to your actual receipt of such notice of termination, including
interest or other finance charges at any time theretofore accrued or thereafter
accruing or payable thereon; (ii) all of your costs and expenses, including
attorneys' fees, at any time incurred in connection with your enforcement and
collection of Debtor's Liabilities incurred prior to your actual receipt of such
notice of termination; (iii) Debtor's Liabilities incurred subsequent to your
actual receipt of such notice of termination pursuant to any perceived or actual
commitment made on your part prior to such notice of termination, arising out of
any course of dealing or other perceived or actual legal or other requirement
obligating or committing you to make advances, loans or other financial
accommodations giving rise to such Debtor's Liabilities; and (iv) advances at
any time made by you to protect your interests under or in connection with
Debtor's Liabilities incurred prior to you actual receipt of such notice of
termination. We acknowledge that, upon such termination, you will have
absolutely no further obligation to consider any further requests for loans or
other extensions of credit or financial accommodations for the Debtor.
6. SECURITY FOR GUARANTY.
All sums at any time to our credit and any of our present and
future property at any time in your possession shall be deemed held by you as
security for any and all of our obligations to you hereunder.
7. SUBORDINATION.
Any and all present and future indebtedness and obligations of
the Debtor to us are hereby agreed to be postponed in your favor. Upon written
notice given by you to us, which you may give at any time whether or not the
Debtor is in default to you, we will refrain from accepting any payments on
account of such indebtedness tendered by the Debtor or any other Obligor
thereon, or realized from any security therefor, and any amounts received by us
in violation of the foregoing shall be held by us upon an express trust for your
benefit and turned over to you upon demand. Until such notice, we will accept
only such payments which are in the nature of regularly scheduled payments made
pursuant to periodic reductions required by the terms of the documents
evidencing such indebtedness, and shall not accept any prepayment thereof,
whether on default, on demand under any demand instrument, or otherwise. We
represent to you that all such indebtedness owing to us is, and agree that it
shall remain, and any future indebtedness shall be unsecured.
8. NO WAIVER.
No failure, omission or delay on your part in exercising any
rights hereunder or under the Agreements or with respect to Debtor's
Liabilities, either against the Debtor or any other Obligor, or any Secured
Property, shall operate as a waiver of such rights or shall, in any manner,
prejudice your rights against us hereunder or otherwise.
9. CUMULATIVE REMEDIES.
All of your rights and remedies under the Agreements, this
Guaranty and under any other document or instrument evidencing or securing
Debtor's Liabilities are separate and cumulative and may be pursued separately,
successively or concurrently, are non-exclusive and the exercise of any one or
more of them shall in no way limit or prejudice any other legal or equitable
right, remedy or recourse to which you may be entitled. This Guaranty shall be
deemed to be in addition to, and not in lieu of, any prior suretyship or
guaranty delivered by us to you, and any suretyship or guaranty at any time
hereafter delivered by us to you shall be deemed to be in addition to, and not
in lieu of, this Guaranty.
10. APPLICATION OF FUNDS.
(3)
Any payment made by us hereunder, or by the Debtor or any other
Obligor, and any proceeds realized by you from any Secured Property, may be
applied by you to any of Debtor's Liabilities in any order which you may
determine, notwithstanding any designation by us, the Debtor or other Obligor to
the contrary. To the extent that the Debtor has at any time any liabilities or
obligations to you for which we are not obligated to you under the terms of this
Guaranty, any payments received by you from Debtor or any other Obligor, or
proceeds realized by you from any security, and regardless of any designation by
any person or entity to the contrary, may be applied by you to such other
liabilities and obligations prior to your applying any amounts to Debtor's
Liabilities for which we are obligated to you hereunder.
11. MODIFICATIONS.
No provision thereof shall be modified or limited, except by a
written agreement expressly referring hereto and to the provision so modified or
limited, and signed by us and you.
12. MERGER.
This writing is intended as a final, complete and exclusive
expression of our agreement with you relative to the subject matter hereof. No
course of prior dealing between you and us, no usage of the trade, and no parole
or extrinsic evidence of any nature, shall be used or be relevant to supplement
or explain or modify and term used in this Guaranty.
13. SEVERABILITY.
In case any one or more of the provisions contained in this
Guaranty shall for any reason be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions hereof, and this Guaranty shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
14. NOTICES.
We agree that any notice or demand upon us shall be deemed to be
sufficiently given or served if it is in writing and is personally served, or in
lieu of personal service is mailed by first class certified mail, postage
prepaid, addressed to us at the address set forth below. Any notice or demand
so mailed shall be deemed received on the date of actual receipt or the first
business day following mailing, whichever first occurs.
15. JUDGMENT INTEREST.
Any judgment entered against us hereunder shall, to the extent
permitted by applicable law, bear interest at the highest rate applicable to the
Debtor's Liabilities guaranteed hereby.
16. GOVERNING LAW.
THIS INSTRUMENT SHALL FOR ALL PURPOSES BE GOVERNED BY AND
INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE CONFLICT OF LAW
RULES) OF THE STATE OF ARIZONA. WE HEREBY CONSENT TO THE EXCLUSIVE JURISDICTION
OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF MARICOPA, THE STATE
OF ARIZONA OR, AT YOUR SOLE OPTION, IN ANY OTHER COURT IN WHICH YOU SHALL
INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER
JURISDICTION OVER THE MATTER IN CONTROVERSY. WE HEREBY IRREVOCABLY WAIVE ANY
OBJECTION OF FORUM NON CONVENIENS AND VENUE.
17. WAIVER OF JURY TRIAL.
(4)
AS AN INDEPENDENT COVENANT, WE IRREVOCABLY WAIVE JURY TRIAL AND
THE RIGHT THERETO IN ANY AND ALL ACTIONS BETWEEN US, WHETHER UNDER THIS
AGREEMENT OR OTHERWISE.
18. SUCCESSORS AND ASSIGNS.
This Guaranty shall inure to the benefit of your successors and
assigns and shall be binding on our successors and assigns.
19. GENDER; JOINT AND SEVERAL LIABILITY.
If there be more than one person or entity signing this Guaranty,
each of us will be jointly and severally obligated to you hereunder, and the
terms "we", "us" or "our" as used herein shall refer to each of us jointly and
severally. If less than all persons or entities who were intended to sign this
Guaranty do so, the same shall nevertheless be binding upon those who do sign.
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned has duly executed this Guaranty as of this 3rd day of November,
1999.
CompUSA Inc., a Delaware Corporation
By: /s/ J. ▇▇▇▇▇▇ ▇▇▇▇
----------------------------------------
J. ▇▇▇▇▇▇ ▇▇▇▇, Senior Vice President
Attest: [Blank in original]
[Corporate Seal]
Address: Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, General
Counsel
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(5)