MASTER
SECURITY AND ADMINISTRATION AGREEMENT
COMPUCOM SYSTEMS, INC.
NATIONSBANK OF TEXAS, N.A.
IN ITS CAPACITY AS
ADMINISTRATIVE SECURED PARTY
ON BEHALF OF
NATIONSBANK OF TEXAS, N.A.
CSI FUNDING, INC.
NATIONSBANK OF TEXAS, N.A.
CSI FUNDING, INC.
ENTERPRISE FUNDING CORPORATION
DATED EFFECTIVE AS OF
APRIL 1, 1996
TABLE OF CONTENTS
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Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I.
GRANT OF SECURITY INTEREST; APPOINTMENT OF
ADMINISTRATOR; COLLATERAL COVENANTS . . . . . . . . . . . . . . . . . . 8
1.1 Security Interest . . . . . . . . . . . . . . . . . . . . . . . . 8
1.2 Administrative Secured Party Appointed as Administrator . . . . . 9
1.3 Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1.4. Adjustment and Compromise of Receivables. . . . . . . . . . . . . 10
1.5 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . 10
1.6 Perfection and Protection . . . . . . . . . . . . . . . . . . . . 10
1.7 Examinations; Inspections . . . . . . . . . . . . . . . . . . . . 10
1.8 Right to Cure . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.9 Preservation of Rights. . . . . . . . . . . . . . . . . . . . . . 11
1.10 Special Rights; Power of Attorney . . . . . . . . . . . . . . . . 11
ARTICLE II. COLLECTIONS ADMINISTRATION . . . . . . . . . . . . . . . . . . . 12
2.1 Administration of Collections . . . . . . . . . . . . . . . . . . 12
2.2 Certification of RPA Interest and CompuCom Interest . . . . . . . 13
2.3 Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE III. CLOSING REQUIREMENTS . . . . . . . . . . . . . . . . . . . . . 15
3.1 Items to be Delivered by CompuCom . . . . . . . . . . . . . . . . 15
ARTICLE IV. REPRESENTATIONS . . . . . . . . . . . . . . . . . . . . . . . . 16
4.1 Corporate Name; Trade Names . . . . . . . . . . . . . . . . . . . 16
4.2 Chief Executive Office. . . . . . . . . . . . . . . . . . . . . . 16
4.3 Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . 16
4.4 Corporate Power and Authority; Validity . . . . . . . . . . . . . 17
4.5 No Conflicting Agreements . . . . . . . . . . . . . . . . . . . . 17
4.6 Compliance with Laws. . . . . . . . . . . . . . . . . . . . . . . 17
4.7 Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.8 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.9 Title to Property . . . . . . . . . . . . . . . . . . . . . . . . 17
4.10 Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.11 Representations and Warranties Cumulative . . . . . . . . . . . . 17
ARTICLE V. COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.1 Compliance Certificate. . . . . . . . . . . . . . . . . . . . . . 18
5.2 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.3 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . 18
5.4 Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . 18
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5.5 Monthly Receivables Report. . . . . . . . . . . . . . . . . . . . 18
5.8 Additional Information. . . . . . . . . . . . . . . . . . . . . . 19
5.9 Notification of Material Changes. . . . . . . . . . . . . . . . . 19
5.10 Notification Regarding Default. . . . . . . . . . . . . . . . . . 19
5.11 Compliance with Laws. . . . . . . . . . . . . . . . . . . . . . . 19
5.12 Payment of Taxes. . . . . . . . . . . . . . . . . . . . . . . . . 19
5.13 Waivers and Consents. . . . . . . . . . . . . . . . . . . . . . . 20
5.14 Restriction on Disposition of Collateral. . . . . . . . . . . . . 20
5.15 Prohibition Against Liens on Collateral . . . . . . . . . . . . . 20
5.16 Covenants Cumulative. . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE VI. EVENT OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . 20
6.1 Event of Default. . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE VII. REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
7.1 Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
7.2 Cash Collateral; Injunctive Relief. . . . . . . . . . . . . . . . 22
7.3 Application of Proceeds; Deficiency . . . . . . . . . . . . . . . 22
7.4 Waiver of Notices . . . . . . . . . . . . . . . . . . . . . . . . 22
7.5 Setoff. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7.6 Performance by Administrative Secured Party . . . . . . . . . . . 23
7.7 Non-waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
7.8 Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE VIII. ADMINISTRATION. . . . . . . . . . . . . . . . . . . . . . . . 23
8.1 Administration. . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE IX. ADDITIONAL AGREEMENTS . . . . . . . . . . . . . . . . . . . . . 30
9.1 Equal Dignity . . . . . . . . . . . . . . . . . . . . . . . . . . 30
9.2 Pro-Rata Treatment Among Beneficial Secured Parties . . . . . . . 30
9.3 Subordination of Interests. . . . . . . . . . . . . . . . . . . . 30
9.4 Other Rights; Waiver of Marshaling. . . . . . . . . . . . . . . . 33
9.5 Access to Information . . . . . . . . . . . . . . . . . . . . . . 33
9.8 Limitation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE X. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . 34
10.1 Effective Date; Term; Termination . . . . . . . . . . . . . . . . 34
10.2 Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
10.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
10.4 Benefit to CompuCom . . . . . . . . . . . . . . . . . . . . . . . 36
10.5 Administrative Secured Party. . . . . . . . . . . . . . . . . . . 36
10.6 Exercise of Rights. . . . . . . . . . . . . . . . . . . . . . . . 36
10.7 Administrative Secured Party's Records; Account Statements. . . . 37
10.8 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
10.9 Interest Limitation . . . . . . . . . . . . . . . . . . . . . . . 37
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10.10 Costs and Expenses. . . . . . . . . . . . . . . . . . . . . . . . 37
10.11 Acceptance and Performance; Venue . . . . . . . . . . . . . . . . 38
10.12 WAIVER OF TRIAL BY JURY . . . . . . . . . . . . . . . . . . . . . 38
10.13 Copies Valid as Financing Statements. . . . . . . . . . . . . . . 38
10.14 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . 38
10.15 Entirety and Amendments . . . . . . . . . . . . . . . . . . . . . 38
10.16 Parties Bound . . . . . . . . . . . . . . . . . . . . . . . . . . 39
10.17 Exhibits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
10.19 Cumulative Rights . . . . . . . . . . . . . . . . . . . . . . . . 39
10.20 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . 39
10.21 Multiple Counterparts . . . . . . . . . . . . . . . . . . . . . . 40
10.22 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
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MASTER
SECURITY AND ADMINISTRATION AGREEMENT
This Master Security and Administration Agreement is executed and entered
into by and among COMPUCOM SYSTEMS, INC., a Delaware corporation, NATIONSBANK OF
TEXAS, N.A., a national bank, in its capacity as Administrative Secured Party
under this Agreement, NATIONSBANK OF TEXAS, N.A., a national bank, in its
individual corporate capacity, CSI FUNDING, INC., a Delaware corporation, and
ENTERPRISE FUNDING CORPORATION, a Delaware corporation, effective as of April
1, 1996, as follows:
DEFINITIONS
The following definitions shall apply throughout this Agreement:
"ACCOUNT DEBTOR" means a Person that is obligated for payment of a
Receivable.
"ADMINISTRATION DOCUMENTS" means this Agreement, each Agency Account
Agreement, any Lockbox Agreement, any and all deposit account agreements
pertaining to the Concentration Account, the NationsBank Account and the
CFI Account, respectively, all financing statements in respect of this
Agreement, and any and all renewals, extensions, modifications, amendments
or restatements of any of the foregoing.
"ADMINISTRATIVE SECURED PARTY" means NATIONSBANK OF TEXAS, N.A., a
national bank, in its capacity as Administrative Secured Party under this
Agreement, whose principal place of business is located at 901 Main Street,
Dallas, Dallas County, Texas 75202. When used throughout this Agreement,
"Administrative Secured Party" also includes Administrative Secured Party's
successors and any party to whom Administrative Secured Party, or its
successors, assigns its rights and interests under this Agreement as
allowed by, and pursuant to, paragraph 8.1(h).
"AGREEMENT" means this Master Security and Administration Agreement and all
exhibits and addenda, and any renewal, extension, amendment, modification
or restatement thereof.
"AGENCY ACCOUNT" means a special account of CompuCom over which
Administrative Secured Party alone has power of withdrawal or transfer,
established at a depository bank acceptable to Administrative Secured Party
and the Beneficial Secured Parties, for the deposit of Collections and
transfer of same to the Concentration Account pursuant to an Agency Account
Agreement as prescribed by this Agreement.
"AGENCY ACCOUNT AGREEMENT" means an agreement among CompuCom,
Administrative Secured Party and a depository bank acceptable to
Administrative Secured Party and the Beneficial Secured Parties under which
an Agency Account is established with such depository bank, in form and
substance satisfactory to Administrative Secured Party and containing such
provisions as Administrative Secured Party may require, including without
limitation the following: (a) such depository bank agrees to hold all funds
from time to time
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deposited to the Agency Account as bailee for Administrative Secured Party
and forward same daily to Administrative Secured Party by wire transfer (or
such other manner of transfer acceptable to Administrative Secured Party
and the Beneficial Secured Parties) to the Concentration Account (or such
other account as may be designated by Administrative Secured Party); (b)
CompuCom and such depository bank agree that they shall have no power of
withdrawal over the funds in the Agency Account; (c) such depository bank
waives any right, claim or interest in the Agency Account, and funds on
deposit therein, and agrees that it shall neither claim nor exercise any
right of offset, banker's lien or other rights against such funds; (d)
CompuCom agrees to pay directly all costs and expenses of such depository
bank associated with the Agency Account; and (e) CompuCom and such
depository bank agree that CompuCom may not terminate the Agency Account or
the Agency Account Agreement, without the prior written consent of
Administrative Secured Party.
"BENEFICIAL SECURED PARTY" means each of (i) NationsBank (until full
payment of all NationsBank Secured Obligations and termination of the
NationsBank FSA, but not thereafter) and (ii) CFI (until termination of the
RPA and collection, or write-off by CFI, of all Receivables in which an RPA
Interest was transferred under the RPA, but not thereafter) and, until
termination of the TAA (but not thereafter), EFC as assignee of the CFI
Secured Obligations and a portion of the RPA Interest, as its interest
therein appears pursuant to the TAA, and its permitted assigns; and in each
case their legal successors, respectively.
"BOOKS AND RECORDS" means all books, records, books or records of account,
files, journals, ledgers, correspondence, bank statements, registers, logs,
customer lists and related customer credit information, address or
telephone number lists, records of sales and payments made and received,
computer programs, discs, tapes, cards, software, printouts, systems and
other records, in whatever form, relating in any way to any of the
foregoing, and all other tangible and intangible media created, generated,
received, kept or otherwise used for recording actions, transactions and
other facts relating or pertaining to the Collateral.
"BUSINESS DAY" means any calendar day except Saturday, Sunday and those
days on which Administrative Secured Party is closed for business or which
are legal public holidays specified in 5 U.S.C. Section 6103(a), as may be
amended from time to time.
"CFI" means CSI Funding, Inc., a Delaware corporation and wholly owned
subsidiary of CompuCom, whose chief executive office and principal place of
business is located at 10100 Central Expressway, Dallas, Texas 75321.
"CFI ACCOUNT" means account No. 1291795475 maintained by CFI at NationsBank
or any other demand deposit account maintained by CFI and designated to
Administrative Secured Party in writing as an account for deposits by
Administrative Secured Party pursuant to paragraph 2.1(c)(1).
"CFI SECURED OBLIGATIONS" means all obligations now or hereafter owing by
CompuCom to or for the benefit of CFI (or EFC as transferee of a portion of
the RPA Interest under the TAA) under the RPA, the TAA or this Agreement,
whether pursuant to their respective terms or as may otherwise be
determined by applicable law (in all events including, without
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limitation, CompuCom's obligation to deliver, or cause to be delivered, to
Administrative Secured Party all Collections for the benefit of the
Beneficial Secured Parties as required by this Agreement and the RPA and
also including, to the extent (if any) that the transactions under the RPA
are recharacterized by a court of competent jurisdiction to be a financing
transaction, CompuCom's obligations to repay any loans deemed made to it by
CFI thereunder), and all renewals, extensions, amendments, modifications or
restatements thereof.
"COLLATERAL" means collectively all Receivables, Related Security, and
Books and Records now owned and hereafter acquired by CompuCom, and all
proceeds thereof at any time arising.
"COLLATERAL ACCESS AND WAIVER AGREEMENT" means an agreement in form and
substance satisfactory to Administrative Secured Party pursuant to which,
among other things, the owner and landlord of any real property leased by
CompuCom where any Books and Records are located shall waive its rights, if
any, thereto and allow Administrative Secured Party to enter upon the
premises to inspect, use, copy, or remove same.
"COLLECTIONS" means all proceeds of Receivables in whatever form, including
without limitation money, electronic funds transfers or checks, drafts,
notes, or other instruments in payment of Receivables or otherwise
constituting proceeds of Receivables.
"COMPUCOM" means COMPUCOM SYSTEMS, INC., a Delaware corporation, with its
chief executive office located at 10100 Central Expressway, Dallas, Texas
75321.
"COMPUCOM INTEREST" means, at any time, the undivided fractional ownership
interest in the Receivables other than the RPA Interest, which together
with the RPA Interest constitutes a one hundred percent (100%) ownership
interest.
"COMPUCOM INTEREST PERCENTAGE" means, at any time, the CompuCom Interest
expressed as a percentage of the sum of the CompuCom Interest and the RPA
Interest, which percentage at any time shall be as most recently certified
to Administrative Secured Party by CompuCom and CFI pursuant to paragraph
2.2(a) or paragraph 2.2(b), subject however, to paragraph 2.2(c) and
paragraph 2.2(d).
"CONCENTRATION ACCOUNT" means a special account maintained by
Administrative Secured Party with a depository bank acceptable to
Administrative Secured Party and the Beneficial Secured Parties for
transfer and deposit of amounts deposited to the Lockbox or any Agency
Account.
"CONTRACT TERM" means the period beginning on the Effective Date and ending
on the earlier of (1) both (i) termination of the RPA and the TAA and
certification thereof to Administrative Secured Party by CompuCom and the
RPA Interest Owner and (ii) full payment and performance of the NationsBank
Secured Obligations and termination of the NationsBank FSA, and
certification thereof to Administrative Secured Party by CompuCom and
NationsBank or (2) mutual agreement in writing signed by CompuCom,
Administrative Secured Party and each of the Beneficial Secured Parties.
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"EFC" means Enterprise Funding Corporation, a Delaware corporation.
"EFFECTIVE DATE" means the effective date specified in the preamble of this
Agreement.
"INDEMNIFIED CLAIMS" means any and all claims, demands, actions, causes of
action, judgments, obligations, liabilities, losses, damages and
consequential damages, penalties, fines, costs, fees, expenses and
disbursements (including without limitation, fees and expenses of attorneys
and other professional consultants and experts in connection with
investigation or defense) of every kind, known or unknown, existing or
hereafter arising, foreseeable or unforeseeable, which may be imposed upon,
threatened or asserted against, or incurred or paid by, any Indemnified
Person at any time and from time to time, because of, resulting from, in
connection with, or arising out of any transaction, act, omission, event or
circumstance in any way connected with the Collateral or the Administration
Documents (including enforcement, defense or protection of any rights of
Administrative Secured Party or the Beneficial Secured Parties thereunder),
including but not limited to economic loss, property damage, personal
injury or death in connection with any act performed or omitted to be
performed under any Administration Documents, any breach by CompuCom of any
representation, warranty, covenant, agreement or condition contained in any
Administration Documents or any Event of Default as defined in this
Agreement. THE FOREGOING INCLUDES CLAIMS BASED UPON OR ARISING FROM
ORDINARY NEGLIGENCE OF ANY INDEMNIFIED PERSON BUT EXCLUDES CLAIMS BASED
UPON OR ARISING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY
INDEMNIFIED PERSON.
"INDEMNIFIED PERSONS" collectively means Administrative Secured Party and
each of the Beneficial Secured Parties, and their respective officers,
directors, shareholders, employees, agents, attorneys and representatives,
and any person owned or controlled by, or which owns or controls or is
under common control or is otherwise affiliated with, any of them,
respectively, and any other person, if any, who acquires a portion of the
Collateral in any manner through exercise of rights and remedies under the
Administration Documents.
"LOCKBOX" means a United States Post Office Box designated for the receipt
of Collections pursuant to a Lockbox Agreement.
"LOCKBOX AGREEMENT" means an agreement between Administrative Secured Party
and CompuCom designating a Lockbox for the receipt, deposit and collection
of Collections, in form and substance satisfactory to Administrative
Secured Party and containing provisions for the receipt of Collections and
daily deposit of same to the Concentration Account, and such other
provisions as Administrative Secured Party may require.
"MATERIAL ADVERSE EFFECT" means (i) a materially adverse effect on the
business, assets, operations, prospects or condition, financial or
otherwise, of CompuCom or (ii) material impairment of the ability of
CompuCom to perform any obligations under the Administration Documents or
(iii) material impairment of the enforceability of the rights and remedies
intended to be provided to Administrative Secured Party and the Beneficial
Secured Parties by this Agreement.
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"MAXIMUM RATE" means the greater of (i) the "monthly ceiling" as referred
to and in effect from time to time under the provisions of Tex. Rev. Civ.
Stat. Ann. art. 5069-1.04(c), as amended, or (ii) the maximum rate of
interest permitted from day to day by any other applicable state or federal
law.
"NATIONSBANK" means NationsBank of Texas, N.A., a national bank, in its
individual corporate capacity, whose chief executive office and principal
place of business is located at 901 Main Street, Dallas, Dallas County,
Texas 75202, and its respective successors and assigns, including
specifically any party to whom NationsBank or its successors or assigns may
assign its rights and interests in any NationsBank Secured Obligations.
"NATIONSBANK ACCOUNT" means NationsBank's account No. 0180019471 maintained
by NationsBank at NationsBank, or any other demand deposit account
maintained by NationsBank and designated to Administrative Secured Party in
writing as an account for deposits by Administrative Secured Party pursuant
to paragraph 2.1(c)(2).
"NATIONSBANK FSA" means the certain Financing and Security Agreement dated
effective as of August 4, 1993 between NationsBank and CompuCom, as amended
by the following: (i) the First Amendment to Financing and Security
Agreement dated effective as of March 31, 1994, (ii) the Second Amendment
to Financing and Security Agreement dated effective as of December 12,
1994, (iii) the Third Amendment to Financing and Security Agreement dated
effective as of April 26, 1995, (iv) the Fourth Amendment to Financing and
Security Agreement dated effective as of October 1, 1995, (v) Amendment 4A
to Financing and Security Agreement dated effective as of March 22, 1996
and (v) the Fifth Amendment to Financing and Security Agreement of even
date herewith, as the same may hereafter be renewed, extended, modified,
amended or restated from time to time.
"NATIONSBANK SECURED OBLIGATIONS" means all "Obligations" defined in the
NationsBank FSA (which definition is incorporated herein by reference, and
includes without limitation, all obligations and indebtedness now or
hereafter owing by CompuCom to NationsBank under or in connection with the
NationsBank FSA and all other obligations and indebtedness from time to
time owing by CompuCom to NationsBank), and all renewals, extensions,
amendments, modifications or restatements thereof.
"OWNERSHIP CERTIFICATION" means a written certification of the RPA Interest
Percentage and the CompuCom Interest Percentage, respectively, jointly
signed by the president, chief financial officer, treasurer or controller
of CompuCom and CFI, respectively, in form as appears in Exhibit 2.2 or
otherwise satisfactory to Administrative Secured Party, delivered by
CompuCom pursuant to paragraph 2.2.
"PERMITTED SUBORDINATED INTERESTS" means all interests in the Collateral
evidenced by (i) each of the NationsBank FSA, the RPA and the TAA, in each
case, however, subject to the provisions of this Agreement as provided by
paragraph 9.3, and (ii) interests of IBM Credit Corporation pursuant to the
certain Agreement for Wholesale Financing dated August 27, 1991 between IBM
Credit Corporation and CompuCom, as amended from time to time, subject at
all times, however, to the certain Amended and Restated Intercreditor
Agreement
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of even date herewith among IBM Credit Corporation, CompuCom,
Administrative Secured Party and NationsBank, as amended from time to time.
"PERSON" means any individual, corporation, joint venture, general or
limited partnership, trust, unincorporated organization or governmental
entity or agency.
"PRO RATA PERCENTAGE" means, with respect to any Receivable, a percentage
of such Receivable equal to (i) the CompuCom Interest Percentage in the
case of CompuCom or NationsBank, and (ii) the RPA Interest Percentage in
the case of CFI, or until termination of the TAA (but not thereafter), CFI
and EFC, collectively (as their respective interests in the RPA Interest
appear pursuant to the TAA).
"RECEIVABLES" means all of CompuCom's rights to payment from time to time
owing to CompuCom in connection with the sale of inventory or other goods,
or performance of services, by CompuCom (including without limitation,
accounts, chattel paper, instruments, contract rights and general
intangibles).
"RELATED SECURITY" means all security interests or liens, and all property
subject thereto, from time to time securing payment and performance of any
Receivable, and all guarantees, insurance or other agreements or
arrangements of any kind from time to time supporting or securing payment
of any Receivable and all returned goods the sale of which gave rise to any
Receivable.
"RPA" means the certain Receivables Purchase Agreement of even date
herewith between CompuCom and CFI providing for the sale by CompuCom to CFI
and the purchase by CFI from CompuCom (subject to the interests and rights
of the Administrative Secured Party under this Agreement) of an undivided
fractional ownership interest in all Receivables now owned and hereafter
acquired and arising from time to time prior to termination thereof, on the
terms provided therein, as the same may be renewed, extended, modified,
amended or restated from time to time.
"RPA INTEREST" means the undivided fractional ownership interest in the
Receivables that has been sold and transferred, and alternatively, in which
a security interest has been granted, by CompuCom to CFI pursuant to, and
which is the subject of, the RPA.
"RPA INTEREST OWNER" means CFI, and until termination of the TAA (but not
thereafter) also includes EFC, and its permitted assigns, as purchaser and
assignee of a portion of the RPA Interest pursuant to the TAA, as its
interest therein appears pursuant to the RPA.
"RPA INTEREST PERCENTAGE" means the RPA Interest expressed as a percentage
of the sum of the CompuCom Interest and the RPA Interest, which percentage
at any time shall be as most recently certified to Administrative Secured
Party by CompuCom and CFI pursuant to paragraph 2.2(a) or paragraph 2.2(b),
subject however, to paragraph 2.2(c) and paragraph 2.2(d).
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"SECURED OBLIGATIONS" collectively means (i) all obligations from time to
time owing by CompuCom to Administrative Secured Party under this
Agreement, (ii) the NationsBank Secured Obligations and (iii) the CFI
Secured Obligations, and any and all renewals or extensions thereof,
respectively.
"TAA" means the certain Transfer and Administration Agreement of even date
herewith among CFI, EFC, CompuCom and NationsBank, N.A. in its capacity as
Agent and a Bank Investor thereunder, providing for the transfer by CFI to
EFC and the acceptance by EFC from CFI of a portion of the RPA Interest,
from time to time, on the terms provided therein, as the same may be
renewed, extended, modified, amended or restated from time to time.
"TEXAS UCC" means the Texas Uniform Commercial Code as in effect on the
date of this Agreement and as it may hereafter be amended from time to
time.
All words and phrases used herein which are expressly defined in Section 1.201
or in Chapter 9 of the Texas UCC shall have the meaning provided for therein.
Other such words and phrases defined elsewhere in the Texas UCC shall have the
meanings specified therein except to the extent such meaning is inconsistent
with a definition in Section 1.201 or Chapter 9 thereof.
RECITALS
CompuCom and NationsBank are parties to the NationsBank FSA which
provides for a credit facility for loans by NationsBank to CompuCom,
from time to time, secured by (among other collateral) all of
CompuCom's Receivables now owned and hereafter acquired, on the terms
provided therein.
CFI is a special purpose, bankruptcy remote, wholly owned subsidiary
of CompuCom, formed and operating for the sole purpose of entering
into and performing (i) this Agreement, (ii) the RPA, pursuant to
which CompuCom will sell to CFI and CFI will purchase from CompuCom,
from time to time, the RPA Interest, (iii) the TAA, pursuant to which
CFI will transfer to EFC and EFC will accept from CFI, from time to
time, a portion of the RPA Interest, and (iv) various related
agreements.
CompuCom, NationsBank, CFI and EFC wish to establish a means by which
CompuCom may utilize its Receivables to access working capital sources
VIA both the NationsBank FSA and the RPA, as CompuCom shall determine
in accordance with this Agreement, the NationsBank FSA and the RPA,
and contemporaneous means by which the interests of the Beneficial
Secured Parties may be administered on terms, and in a manner,
mutually agreeable to Administrative Secured Party, CompuCom and the
Beneficial Secured Parties.
CompuCom and CFI intend that the transaction contemplated by the RPA
create an absolute transfer to CFI from CompuCom of the RPA Interest
in effect from time to time. In that regard, CFI has entered into
this Agreement to provide a means for administration of the
Receivables, the Related Security and Collections
7
in a manner consistent with its rights therein and the rights of
NationsBank therein. This agreement provides for the grant by CompuCom to
Administrative Secured Party, for the benefit of the Beneficial Secured
Parties as provided herein, of a security interest in the Collateral as a
whole (and not just the portion thereof as might separately secure the
NationsBank Secured Obligations) because CFI has requested that, in the
event of any possible recharacterization by a court of competent
jurisdiction of the transactions contemplated by the RPA not as an absolute
transfer to CFI of the RPA Interest but rather as a financing (despite the
expressed intent of CompuCom and CFI), CFI have the equivalent benefit of a
security interest in that portion of the Receivables, the Related Security
and the Collections as might separately secure the payment to CFI of any
loan deemed to have been made to CompuCom by CFI pursuant to any such
recharacterization. As a means to address administrative
impracticabilities caused by the nature of trade accounts receivable and
intercreditor matters regarding the rights of NationsBank on the one hand
and CFI on the other, this Agreement provides for the grant by CompuCom to
Administrative Secured Party, for the benefit of the Beneficial Secured
Parties, of a security interest in all of the Receivables, the Related
Security and the Collections, to secure both the CFI Secured Obligations
and the NationsBank Secured Obligations as well as to provide for the
administration of the Collateral in a manner which is acceptable to all
parties, consistent with CFI's rights therein and the rights of NationsBank
therein.
Therefore, the undersigned parties have determined to enter into
certain agreements and arrangements according to the terms and
provisions as set forth hereinbelow.
THEREFORE, for value received and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the mutual
benefits provided herein, the undersigned parties hereby agree as follows:
ARTICLE I.
GRANT OF SECURITY INTEREST;
APPOINTMENT OF ADMINISTRATOR; COLLATERAL COVENANTS
1.1 SECURITY INTEREST.
a. GRANT OF SECURITY INTEREST. CompuCom hereby grants to
Administrative Secured Party, for the benefit of the Beneficial Secured
Parties according to their respective Pro Rata Percentages, a continuing
security interest, collateral assignment and lien in and to the Collateral
to secure full payment and performance of the Secured Obligations.
b. PRIORITY. Subject to paragraph 9.3, the security interest,
collateral assignment and lien in the Collateral granted to Administrative
Secured Party for the benefit of Beneficial Secured Parties under this
Agreement at all times shall be and remain first, prior and senior to any
other interests in the Collateral. CompuCom represents to Administrative
Secured Party that no other security interests, liens, financing statements
or other encumbrances exist
8
or shall be allowed to exist with respect to any of the Collateral, except
the Permitted Subordinated Interests and perfected rights, if any, in
returned inventory in favor of any Person who is a seller of inventory to
CompuCom, existing as of the Effective Date.
1.2 ADMINISTRATIVE SECURED PARTY APPOINTED AS ADMINISTRATOR. The
Beneficial Secured Parties hereby appoint Administrative Secured Party as
administrator to collect, receive and administer all Collections, on the
Beneficial Secured Parties' joint behalf, as provided by Article II and in
accordance with the other provisions of this Agreement. Until termination of
this Agreement (i) each Beneficial Secured Party irrevocably appoints
Administrative Secured Party as its nominee and attorney in fact with full power
coupled with an interest, to exercise and enforce any and all rights or remedies
in respect of its interests in the Receivables, whether under this Agreement,
the FSA (in the case of NationsBank), the RPA (in the case of CFI), the TAA (in
the case of CFI or EFC), or otherwise. Administrative Secured Party may
exercise or refrain from exercising any and all such rights or remedies as it
may determine in its discretion as provided, and subject to, the provisions of
Article VIII, subject to all other terms of this Agreement, and all Collections
received by Administrative Secured Party in the exercise of any such rights or
remedies shall be deemed received for the benefit of the Beneficial Secured
Parties according to their respective Pro Rata Percentages as of the time of
receipt thereof and administered according to the provisions of Article II and
the other provisions of this Agreement. The rights delegated and appointed to
Administrative Secured Party under this paragraph 1.2 are separate, distinct
and independent of Administrative Secured Party's rights as a secured party
arising under paragraph 1.1(a).
1.3 RECEIVABLES. CompuCom hereby represents, warrants and agrees as
follows (such representations, warranties and covenants being deemed made daily
by CompuCom to Administrative Secured Party for the benefit of the Beneficial
Secured Parties until this Agreement has been terminated): (a) CompuCom is the
sole owner of and has full unrestricted power and right to grant to
Administrative Secured Party a continuing security interest, collateral
assignment and pledge of all Receivables free from any lien, security interest
or encumbrance, other than Permitted Subordinated Interests; (b) each Receivable
is in existence, unconditional and valid, and arose from a bona fide outright
sale of inventory or performance of services in the ordinary course of business,
for liquidated amounts and maturing as set forth on its face and such inventory
has been shipped to, or such services have been performed for, the respective
Account Debtors; (c) no Receivable is or will be subject to any sale,
assignment, claim or security interest of any character, other than the
Permitted Subordinated Interests, and CompuCom will not make any sale or other
assignment thereof or create any other security interest therein; (d) except as
disclosed to Administrative Secured Party in writing, CompuCom has no knowledge
that any Receivable is subject to any claim for credit, deduction, allowance or
adjustment by an Account Debtor, or to any defense, dispute, setoff or
counterclaim, and no extension or indulgence has been granted by CompuCom with
respect thereto; and (e) CompuCom believes and expects that each Receivable will
be paid in full at maturity. CompuCom represents, warrants and confirms that
the existing security interest in certain inventory previously granted by
CompuCom to each of Apple Computer, Inc. and Compaq Computer Corporation,
respectively, in each case, is limited by agreement such that the security
interest in proceeds of such inventory is limited only to cash proceeds and
insurance proceeds and excludes all other proceeds (CompuCom will endeavor to
deliver to Administrative Secured Party, as soon as reasonably possible
following execution of this Agreement, a written statement from each such
secured party confirming that its security interest in proceeds of such
inventory is so limited,
9
PROVIDED, that any failure or delay in delivering any such statement, in and of
itself, shall not impair the foregoing representation, warranty and confirmation
by CompuCom or Administrative Secured Party's reliance thereon).
1.4. ADJUSTMENT AND COMPROMISE OF RECEIVABLES. CompuCom agrees that
it will not settle, adjust, compromise, discharge or extend the time for payment
of any Receivable except in compliance with CompuCom's credit policy and
involving an amount not in excess of $2,000,000.00, without Administrative
Secured Party's consent.
1.5 BOOKS AND RECORDS. CompuCom represents and warrants to Administrative
Secured Party that all Books and Records are located at CompuCom's chief
executive office designated for CompuCom in the "Definitions" of this Agreement,
and at such other locations, if any, as may be specified in Exhibit 1.5.
CompuCom agrees that it will not maintain any Books and Records at any location
other than as designated in Exhibit 1.5 unless it gives Administrative Secured
Party at least 30 days prior written notice and first executes such financing
statements and other documents as Administrative Secured Party may request in
connection therewith, PROVIDED that, if any such location is a leased location
CompuCom shall first cause each owner or landlord thereof to execute and deliver
to Administrative Secured Party a Collateral Access and Waiver Agreement.
CompuCom shall immediately notify Administrative Secured Party upon receipt of
any notice from any Person claiming past due rent, fees or other charges in
respect of any location where any Books and Records are located. CompuCom will
not deliver possession of any Books and Records to any Person (other than
pursuant to valid judicial process) without the prior written consent of
Administrative Secured Party.
1.6 PERFECTION AND PROTECTION. CompuCom shall perform, at its expense,
all action requested by Administrative Secured Party at any time to perfect,
maintain, protect, and enforce Administrative Secured Party's security interests
in the Collateral, including without limitation executing and filing financing
statements and amendments thereof, in form and substance satisfactory to
Administrative Secured Party; delivering to Administrative Secured Party any
proceeds of Collateral the possession of which is required for continued
perfection of Administrative Secured Party's security interests, duly endorsed
or assigned to Administrative Secured Party without restriction, as may be
required for such purpose; placing notations on books of account to disclose
Administrative Secured Party's security interests; and such other steps as are
deemed necessary by Administrative Secured Party to maintain its security
interests. So long as this Agreement is in effect and until all Secured
Obligations have been fully satisfied, Administrative Secured Party's security
interest and lien hereunder shall continue in full force and effect in all
Collateral.
1.7 EXAMINATIONS; INSPECTIONS. Administrative Secured Party or its
designee shall have the right without hindrance or delay, during normal business
hours and without necessity of prior notice, to examine and inspect the
Collateral. Administrative Secured Party is authorized to discuss CompuCom's
affairs with any employees of CompuCom, as Administrative Secured Party may deem
necessary in relation to the Collateral. CompuCom agrees to pay Administrative
Secured Party's customary fees and disbursements relating to any such
examinations or inspections. Administrative Secured Party shall have full
access to all records available to CompuCom from any credit reporting service,
bureau or similar service and shall have the right to examine and make copies of
any such records. Administrative Secured Party may exhibit a copy of this
Agreement to such service and such
10
service shall be entitled to rely on the provisions hereof in providing access
to Administrative Secured Party as provided herein.
1.8 RIGHT TO CURE. Administrative Secured Party in its sole discretion
may pay any amount or take any action in order to preserve, protect and maintain
the Collateral and Administrative Secured Party's security interest therein,
including without limitation, payment of any landlord's claim or other
encumbrance or claim asserted against the Collateral (PROVIDED that with respect
to any payment or obligation owing by CompuCom to any Person other than
Administrative Party, CompuCom shall have first had the opportunity to make any
such payment or perform any such obligation). All such payments and all
out-of-pocket costs and expenses made or incurred by Administrative Secured
Party shall be payable by CompuCom to Administrative Secured Party on demand.
Any payment made or other action taken by Administrative Secured Party under
this paragraph shall be without prejudice to any right to assert an Event of
Default or exercise any other remedy hereunder.
1.9 PRESERVATION OF RIGHTS. To the extent allowed by law, neither
Administrative Secured Party nor any of its officers, directors, employees, and
agents shall be liable or responsible in any way for the safekeeping of any
Collateral or for any act or failure to act with respect to the Collateral, or
for any loss or damage thereto or any diminution in the value thereof, or for
any act by any other Person. In the case of any instruments and chattel paper
included within any proceeds of the Collateral, Administrative Secured Party
shall have no duty or obligation to preserve rights against prior parties. The
Secured Obligations shall not be affected by any failure of Administrative
Secured Party to take any steps to perfect its security interests or to collect
or realize upon the Collateral, nor shall loss of or damage to the Collateral
release CompuCom from any of the Secured Obligations. Unless otherwise
expressly agreed by Administrative Secured Party and the Beneficial Secured
Parties, no (i) modification or amendment of the terms of any Administration
Documents, (ii) compromise, forbearance or grant of renewals, extensions,
indulgences or releases with respect to any Administration Documents, the
Collateral or the Secured Obligations or (iii) other action with respect to the
Collateral or any Person directly or indirectly obligated in connection
therewith shall impair the Secured Obligations, or Administrative Secured
Party's or the Beneficial Secured Parties' interests in the Collateral or any
rights under the Administration Documents.
1.10 SPECIAL RIGHTS; POWER OF ATTORNEY. CompuCom hereby irrevocably
appoints Administrative Secured Party as CompuCom's agent and attorney-in-fact,
for the benefit of the Beneficial Secured Parties, from time to time in
Administrative Secured Party's discretion, to take any action necessary to
preserve and protect the Collateral and Administrative Secured Party's interests
under the Administration Documents. CompuCom hereby authorizes and appoints
Administrative Secured Party as attorney in fact to sign and file any financing
statement or other document necessary to perfect Administrative Secured Party's
security interest in the Collateral. Administrative Secured Party shall have
the right at any time to take any of the following actions, in its own name or
in the name of CompuCom, whether or not an Event of Default is in existence: (i)
make written or verbal requests for verification of amounts owing on Receivables
from any or all Persons which Administrative Secured Party believes may be an
Account Debtor; (ii) take possession and control of Collections; (iii) redirect
the deposit and disposition of Collections; (iv) endorse the name of CompuCom on
checks, instruments constituting Collections; (v) prepare, sign and file, on
behalf of CompuCom in CompuCom's name or in Administrative Secured Party's name
as assignee, any notice
11
of lien, or any proof of claim or other document in any bankruptcy proceedings
of any Account Debtor; (vi) access, copy or utilize any information recorded or
contained in any computer or data processing equipment or system in respect of
the Receivables maintained by CompuCom or any affiliate, or to which CompuCom
has access; (vii) enter onto CompuCom's premises and discuss CompuCom's affairs
with CompuCom's personnel as may be reasonably necessary in connection with
maintaining or enforcing Administrative Secured Party's rights under the
Administration Documents; (viii) access and utilize the information recorded on
or contained in any data processing equipment and computer hardware and software
relating to the Receivables or other Collateral to which CompuCom has access;
and (ix) take all other action allowed by law as may be necessary to carry out
the Administration Documents and give effect to Administrative Secured Party's
rights thereunder. In addition, Administrative Secured Party shall have the
right to take any of the following actions, in its own name or in the name of
CompuCom, at any time when any Event of Default is in existence, whether or not
Administrative Secured Party has taken any action to exercise any remedies under
the Administration Documents: (x) notify any Person which Administrative Secured
Party believes may be an Account Debtor to make payments directly to
Administrative Secured Party; (xi) settle, adjust, compromise or discharge
Receivables or extend time of payment upon such terms as Administrative Secured
Party may determine; (xii) take action in Administrative Secured Party's name or
CompuCom's name to enforce collection of Receivables; (xiii) open mail addressed
to CompuCom to take possession of and dispose of checks or other proceeds of
Receivables in accordance with this Agreement; and (xiv) direct the U.S. Postal
service to change the address to which CompuCom's mail is delivered. Should
Administrative Secured Party at any time elect to exercise its right of
verification or notification with respect to the Receivables as provided in
clause (i) or clause (x) above, respectively, Administrative Secured Party shall
have the right in its sole discretion to direct such request for verification,
or notification, as the case may be, to all Persons which Administrative Secured
Party believes may have transacted business with CompuCom at any time, whether
or not such Persons are then indebted to CompuCom, and Administrative Secured
Party is hereby released and discharged from any liability by reason of any such
request for verification or notification. Costs and expenses incurred by
Administrative Secured Party in connection with any of such actions by
Administrative Secured Party, including reasonable attorneys' fees and
out-of-pocket expenses, shall be reimbursed by CompuCom to Administrative
Secured Party on demand.
ARTICLE II. COLLECTIONS ADMINISTRATION
2.1 ADMINISTRATION OF COLLECTIONS. Unless otherwise expressly agreed in
writing by Administrative Secured Party and the Beneficial Secured Parties:
(a) CompuCom will instruct each Account Debtor to address all
remittances in payment of Receivables to the Lockbox or a designated Agency
Account and will cause all invoices evidencing Receivables to be noted with
a legend stating that payment thereon is to be made to CompuCom at the
Lockbox or a designated Agency Account. CompuCom will cause all
Collections to be delivered to the Lockbox or an Agency Account, or
otherwise delivered directly to Administrative Secured Party for deposit to
the Concentration Account (PROVIDED, that notwithstanding the foregoing,
CompuCom may allow any Account Debtor to make payment on any Receivable by
electronic funds transfer or other immediately
12
available cash equivalent by deposit directly to the Concentration Account,
for the account of CompuCom, with contemporaneous notice thereof to
Administrative Secured Party).
(b) All Collections received in the Lockbox shall be deposited daily
to the Concentration Account. All deposits to an Agency Account shall be
transferred to Administrative Secured Party for deposit to the
Concentration Account in accordance with the procedures set forth in the
applicable Agency Account Agreement.
(c) Unless and until agreed otherwise by Administrative Secured Party
and the Beneficial Secured Parties, all deposits to the Concentration
Account shall be disbursed simultaneously by Administrative Secured Party
as follows (subject to prior payment of Secured Obligations due and payable
by CompuCom to Administrative Secured Party as provided by the
Administration Documents):
(1) A percentage of each dollar thereof equal to the RPA
Interest Percentage as of the time of disbursement shall be deposited
to the CFI Account; and
(2) A percentage of each dollar thereof equal to the CompuCom
Interest Percentage as of the time of disbursement shall be deposited
to the NationsBank Account.
(d) All Collections at all times shall be subject to an express trust
in favor of Administrative Secured Party for the benefit of the Beneficial
Secured Parties. CompuCom will not use, dispose of, withhold or otherwise
exercise dominion over any Collections. CompuCom agrees that it will not
commingle proceeds of Collections with any other funds, and that no
deposits will be made to the Lockbox, any Agency Account or the
Concentration Account other than Collections. All amounts from time to
time deposited to the Lockbox, any Agency Account or the Concentration
Account are for the benefit of the Beneficial Secured Parties and shall
remain subject to Administrative Secured Party's interests under this
Agreement.
2.2 CERTIFICATION OF RPA INTEREST AND COMPUCOM INTEREST.
(a) INITIAL CERTIFICATION. On or after the Effective Date CompuCom
shall deliver to Administrative Secured Party an Ownership Certification,
dated effective as of a specified Business Day (which shall be on or after
the date of delivery thereof) therein certifying the RPA Interest
Percentage and the CompuCom Interest Percentage, respectively, as of such
day. On and after the specified effective date of such initial Ownership
Certification, the RPA Interest Percentage and the CompuCom Interest
Percentage each shall be deemed to be as specified in such Ownership
Certification, and Administrative Secured Party shall be entitled to rely
thereon in connection with its administration of this Agreement until such
time, if any, as any subsequent Ownership Certification is actually
delivered to Administrative Secured Party and becomes effective as provided
in paragraph 2.2(b).
(b) AFTER THE EFFECTIVE DATE. Subject to at least two Business Days
prior written notice to Administrative Secured Party of its intention to do
so, CompuCom may effect a
13
change in the RPA Interest Percentage and the CompuCom Interest Percentage,
for purposes of this Agreement, by delivering to Administrative Secured
Party an Ownership Certification, dated as of a Business Day subsequent to
expiration of such notice period, therein certifying the RPA Interest
Percentage and the CompuCom Interest Percentage, respectively, as of such
day. Provided that no Event of Default is then in existence and PROVIDED
FURTHER, that any such change in the CompuCom Interest Percentage and the
RPA Interest Percentage to be effected thereby does not create an Event of
Default, such Ownership Certification shall become effective as of the day
specified therein (which shall be on or after the beginning of the third
Business Day following the Business Day of Administrative Secured Party's
receipt of the foregoing notice), whereupon the RPA Interest Percentage and
the CompuCom Interest Percentage each shall be deemed to be as specified
therein, and Administrative Secured Party shall be entitled to rely thereon
in connection with its administration of this Agreement until such time, if
any, as any subsequent Ownership Certification is actually delivered to
Administrative Secured Party and becomes effective as provided in this
paragraph 2.2(b).
(c) UPON AND FOLLOWING TERMINATION OF RPA. Notwithstanding any
Ownership Certification, the RPA Interest Percentage in all Receivables
created on or after the effective date of any termination of the RPA
automatically shall be zero percent (0.00%) and the CompuCom Interest
Percentage therein shall be one hundred percent (100.00%). At
Administrative Secured Party's option in its sole discretion,
Administrative Secured Party may cause all Collections received in respect
of Receivables created on or after the effective date of termination of the
RPA to be segregated and deposited to a separate account for collection and
transfer to the NationsBank Account in accordance with paragraph 2.1(c)(2).
It is understood and agreed that the RPA Interest Percentage in effect at
the time of any such termination of the RPA shall remain in effect as to
all Receivables created prior to the effective time of any such termination
of the RPA.
(d) RECEIVABLES SUBJECT TO RECONVEYANCE. Notwithstanding any
Ownership Certification, the RPA Interest Percentage in Receivables, if
any, with respect to which the RPA Interest is reconveyed in full by CFI to
CompuCom pursuant to the RPA, at any time, shall be zero percent (0.0%) and
the CompuCom Percentage Interest therein shall be one hundred percent
(100.0%). CompuCom and CFI shall notify Administrative Secured Party and
NationsBank in writing prior to effecting any such reconveyance, therein
describing the Receivable(s) which are to be the subject thereof. At
Administrative Secured Party's request, CompuCom will assist Administrative
Secured Party in identifying Collections in respect of such Receivables
and, at Administrative Secured Party's option in its discretion,
Administrative Secured Party may cause all Collections at any time received
in respect of such Receivables to be segregated and deposited to a separate
account for collection and transfer to the NationsBank account in
accordance with paragraph 2.1(c)(2).
2.3 FEES.
a. FLOAT. In order to compensate Administrative Secured Party for
collection time required for collection of checks and other items
administered under paragraph 2.1(c), CompuCom shall pay to Administrative
Secured Party, for its own account, as of the last day
14
of each calendar month, an amount determined by multiplying the aggregate
amount of such Collections administered during such month by the Contract
Rate applicable under the NationsBank FSA, dividing the answer by 360 and
multiplying the result by one (1) Business Day.
b. ADMINISTRATION FEE. In order to compensate Administrative
Secured Party for its administration of the Administration Documents,
CompuCom agrees to pay to Administrative Secured Party, for its own
account, an annual administration fee equal to $187,500.00 per year, which
shall be payable monthly in arrears in the amount of $15,625.00 per month
beginning on May 1, 1996 and continuing on the first day of each
consecutive calendar month thereafter and one final payment, prorated to
the date of such payment, on the last day of the Contract Term.
ARTICLE III. CLOSING REQUIREMENTS
3.1 ITEMS TO BE DELIVERED BY COMPUCOM. Prior to or simultaneously with
execution and delivery hereof, CompuCom shall deliver, or cause to be delivered,
to Administrative Secured Party the following:
(a) SECRETARY'S CERTIFICATE. A certificate in form satisfactory to
Administrative Secured Party, signed by the corporate secretary of CompuCom
and authenticated by the president of CompuCom, attaching and certifying
the following:
1. ARTICLES OF INCORPORATION AND CERTIFICATE OF EXISTENCE. A
copy of the articles of incorporation, and all amendments thereto, of
CompuCom, accompanied by the certificate of the Secretary of State of
Delaware and bearing a date no more than thirty (30) days prior to
the date hereof, to the effect that such copy is correct and complete
and that CompuCom is a corporation duly incorporated and validly
existing in such state.
2. GOOD STANDING. A certification by the appropriate official
of the State of Delaware bearing a date no more than thirty (30) days
prior to the date hereof, to the effect that CompuCom is in good
standing in such state with respect to payment of franchise and
similar taxes, and a certification by the Comptroller of Public
Accounts of the State of Texas bearing a date no more than thirty (30)
days prior to the date hereof confirming that CompuCom is duly
qualified to transact business in the State of Texas, bearing a date
no more than thirty (30) days prior to the date hereof confirming that
CompuCom is duly qualified to transact business in such state.
3. BYLAWS. A correct and complete copy of the bylaws of
CompuCom, and all amendments thereto.
4. INCUMBENCY. Certification of the name and signature of
all incumbent corporate officers of CompuCom authorized to act on
behalf of CompuCom in respect of the Administration Documents.
15
5. RESOLUTIONS. A copy of corporate resolutions of
CompuCom approving the Administration Documents and authorizing the
transactions contemplated hereby, and authorizing and directing a
named officer or officers to sign and deliver all Administration
Documents to be executed by CompuCom, duly adopted by its board of
directors, including the certificate of CompuCom's corporate
secretary, dated the date hereof, that such copy is a true and
complete copy of resolutions duly adopted by the board of directors,
and that such resolutions have not been amended, modified, or revoked
in any respect and are in full force and effect as of the date hereof.
(b) ADMINISTRATION DOCUMENTS. This Agreement and all other
Administration Documents, duly executed.
(c) FINANCING STATEMENTS. All financing statements required by
Administrative Secured Party in connection with perfection of
Administrative Secured Party's security interests in the Collateral.
(d) COLLATERAL ACCESS AND WAIVER AGREEMENTS. All Collateral Access
and Waiver Agreements, if any, as may be required by Administrative Secured
Party pursuant to paragraph 1.5.
(e) OPINION OF COMPUCOM'S COUNSEL. An opinion of counsel for
CompuCom in form and substance satisfactory to Administrative Secured
Party, addressing such matters in connection with this Agreement as
Administrative Secured Party may request.
(f) OTHER DOCUMENTS. Such other items as Administrative Secured
Party may request in order to perfect or protect its interests and rights
under the Administration Documents.
ARTICLE IV. REPRESENTATIONS
4.1 CORPORATE NAME; TRADE NAMES. CompuCom is conducting, transacting, and
carrying on its business under the name shown for CompuCom in the Definitions of
this Agreement, and such other names, if any, as may be specified in Exhibit
4.1, and is not engaged in business under any other name. Except as provided in
Exhibit 4.1, during the past five (5) years CompuCom has not (i) done business
under any other name, (ii) been party to a merger or consolidation or (iii)
acquired any of the property included within the Collateral from any other
Person.
4.2 CHIEF EXECUTIVE OFFICE. CompuCom's chief executive office is located
at the address specified for CompuCom in the Definitions of this Agreement.
4.3 CORPORATE EXISTENCE. CompuCom is a corporation, duly incorporated,
validly existing, and in good standing under the laws of the State of Delaware,
and is duly qualified or licensed to transact business in all jurisdictions the
laws of which require it to be so qualified or
16
licensed, except for those jurisdictions, if any, where the failure to be so
qualified or licensed would not cause a Material Adverse Effect.
4.4 CORPORATE POWER AND AUTHORITY; VALIDITY. CompuCom possesses all
requisite authority and power and authority to conduct to own, lease and operate
its properties and to carry on its business as now conducted and proposed to be
conducted and to execute, deliver, and comply with the Administration Documents.
Each of the Administration Documents has been duly authorized by all necessary
corporate action and duly executed and delivered by CompuCom, and evidences
valid and binding obligations enforceable in accordance with its respective
terms.
4.5 NO CONFLICTING AGREEMENTS. CompuCom represents that the execution,
delivery and performance of the Administration Documents will not violate its
articles of incorporation or bylaws, nor constitute a default under, or result
in a breach of, any contract, agreement, or other instrument to which it is a
party or which is applicable to its property.
4.6 COMPLIANCE WITH LAWS. CompuCom represents that it is not in violation
of any laws, regulations and orders in any respect which will result in or
cause, or reasonably would be expected to result in or cause, a Material Adverse
Effect.
4.7 JUDGMENTS. There are no outstanding or unpaid material judgments or
assessments against CompuCom.
4.8 TAXES. All tax returns or filings required to be filed by CompuCom
have been filed and taxes imposed upon CompuCom which are due and payable have
been paid.
4.9 TITLE TO PROPERTY. CompuCom has good and indefeasible title to all
Collateral.
4.10 CONSENTS. No governmental orders, permissions, consents, approvals or
authorizations are required to be obtained and no registrations or declarations
are required to be filed in connection with the execution, delivery and
performance of the Administration Documents other than financing statements
required by Administrative Secured Party under the Texas UCC. CompuCom has all
required governmental permits and licenses, if any, on account of its operations
and activities and is in full compliance with the terms and conditions thereof,
and all such permits and licenses are in full force and effect.
4.11 REPRESENTATIONS AND WARRANTIES CUMULATIVE. The representations and
warranties contained in this Article IV are in addition to all other
representations and warranties provided in the Administration Documents.
ARTICLE V. COVENANTS
Throughout the Contract Term, CompuCom agrees as follows (unless otherwise
allowed by prior written consent of Administrative Secured Party):
17
5.1 COMPLIANCE CERTIFICATE. Within forty five (45) days following the end
of each fiscal quarter of CompuCom, CompuCom shall deliver to Administrative
Secured Party a certificate signed by the president or chief financial officer
of CompuCom certifying to Administrative Secured Party that, except as may be
expressly identified and described in such certificate, CompuCom is in
compliance with its obligations under this Agreement and that no event or
condition that would be the subject of a required notice under paragraph 5.7,
paragraph 5.8 or paragraph 5.9 is in existence as of the date of such
certificate. Such certificate shall be deemed to be a continuing representation
and warranty pending any subsequent certification or notification by CompuCom
respecting its compliance or non-compliance with this Agreement.
5.2 AUTHORITY. Immediately following any effective change thereof (and at
such other times, from time to time, at the request of Administrative Secured
Party) CompuCom shall certify to Administrative Secured Party the names and
signatures of all Persons authorized to execute and deliver to Administrative
Secured Party any documentation contemplated by or relating to any
Administration Documents.
5.3 BOOKS AND RECORDS. CompuCom shall keep and maintain proper, complete
and consistent books of record and account respecting the Collateral and
CompuCom's affairs in accordance with GAAP.
5.4 CORPORATE EXISTENCE. CompuCom shall preserve and maintain its
corporate existence, good standing and authority to transact business in all
jurisdictions where necessary for the proper conduct of its business, and shall
maintain all of its properties, rights, privileges and franchises necessary or
desirable in the normal conduct of its business.
5.5 MONTHLY RECEIVABLES REPORT. Within 15 days after the end of each
calendar month, CompuCom shall furnish to Administrative Secured Party and the
Beneficial Secured Parties a listing and analysis of all Receivables, in form
satisfactory to Administrative Secured Party, including such information as may
be required by Administrative Secured Party including, without limitation (a) a
listing of each Receivable and the unpaid balance owing thereon, and a statement
of the aggregate unpaid balance owing on all Receivables, (b) a listing of the
name and complete address of each Account Debtor and each Receivable owing by
such Account Debtor, and (c) an aging of each Receivable as follows: (i) those
aged 30 days or less from date of invoice, (ii) those aged over 30 days, but
less than 61 days, from date of invoice, (iii) those aged over 60 days, but less
than 91 days, from date of invoice, (iv) those aged over 90 days from date of
invoice.
5.6 NOTICES, INFORMATION IN RESPECT OF RPA AND TAA. CompuCom and CFI will
notify Administrative Secured Party and the Beneficial Secured Parties in
writing (i) at least two (2) Business Days before effecting any change in the
RPA Interest under the terms of the RPA, as provided in paragraph 2.2(b), (ii)
promptly upon any termination of the RPA or the TAA, or upon receiving or
sending any notice of intended, pending or potential termination of the RPA or
the TAA, (iii) promptly at any time when the Percentage Factor exceeds the
Maximum Percentage Factor (as those terms are defined by the TAA); (iv) promptly
upon any assignment by EFC, or any request by CFI for an assignment by EFC, of
EFC's interest under the TAA to any Bank Investor pursuant to Section 9.7 of the
TAA.
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5.7 COPIES IN RESPECT OF RPA AND TAA. Promptly upon execution, CompuCom
will deliver to Administrative Secured Party and the Beneficial Secured Parties
a true and correct copy of the RPA and the TAA, respectively, and all other
agreements, certifications, opinions and other documentation in connection
therewith. CompuCom will provide Administrative Secured Party and the
Beneficial Secured Parties with a true and correct copy of (i) each Ownership
Certification delivered to Administrative Secured Party, (ii) each monthly
report delivered by CompuCom to CFI under the RPA; (iii) each Investor Report
delivered by CompuCom to EFC under the TAA; (iv) each notice, if any, at any
time given by CFI pursuant to Section 5.1(b)(i) of the TAA (notifications in
respect of Termination Events or Potential Termination Events, as those terms
are defined by the TAA) and (v) any notice of termination, or of intended,
pending or potential termination of the RPA or the TAA sent or received by
CompuCom or CFI.
5.8 ADDITIONAL INFORMATION. In addition to information and items
specifically required by the Administration Documents, CompuCom shall promptly
furnish to Administrative Secured Party such other information or documentation
respecting the Collateral, and its business affairs in connection therewith, as
Administrative Secured Party may reasonably request.
5.9 NOTIFICATION OF MATERIAL CHANGES. CompuCom shall promptly notify
Administrative Secured Party of any change in any other material fact or
circumstance represented or warranted in any of the Administration Documents.
Without limitation, CompuCom will notify Administrative Secured Party in writing
at least thirty (30) days prior to the occurrence of any of the following:
(i) change of CompuCom's name, (ii) change of the location of CompuCom's chief
executive office, or (iii) use of any trade name, fictitious name or other
assumed name not disclosed to Administrative Secured Party at the time of
execution of this Agreement.
5.10 NOTIFICATION REGARDING DEFAULT. CompuCom shall immediately notify
Administrative Secured Party and the Beneficial Secured Parties in writing upon
becoming aware of the existence of any condition or event which constitutes an
Event of Default or any condition or event which, after notice or lapse of time,
or both, would constitute an Event of Default, therein specifying the nature and
period of existence thereof and what action CompuCom is taking or proposes to
take with respect to such condition or event. CompuCom shall immediately notify
Administrative Secured Party and the Beneficial Secured Parties in writing if it
knows, or reasonably expects, that an Event of Default will occur, therein
specifying the nature of the anticipated Event of Default. CompuCom will
immediately notify Administrative Secured Party and the Beneficial Secured
Parties if CompuCom is aware that any covenant under this Agreement has been
breached, or reasonably expects that any such covenant will be breached, or if
CompuCom's board of directors authorizes the filing by CompuCom of a petition in
bankruptcy.
5.11 COMPLIANCE WITH LAWS. CompuCom shall comply with all applicable laws,
regulations and orders applicable to it or its property, a violation of which
would reasonably be expected to result in a Material Adverse Effect.
5.12 PAYMENT OF TAXES. CompuCom shall promptly pay, or cause to be paid,
when due, all assessments, taxes, governmental charges and levies imposed upon
CompuCom or its income or profits, the non payment of which could give rise to
any notice of tax lien, levy or other lien or process against any of the
Collateral, except such as may be contested in good faith by appropriate
19
proceedings, PROVIDED, that adequate reserves shall be maintained as are
appropriate according to GAAP. CompuCom shall promptly pay any amounts adjudged
to be due pursuant to any such contest, with all costs, penalties, and interest
thereon, before such judgment becomes final or any writ or order is issued under
which the Collateral, or any portion thereof, may become subject to any lien or
encumbrance. Promptly upon Administrative Secured Party's request, CompuCom
will furnish to Administrative Secured Party evidence of payment of all such
contested amounts and will authorize the appropriate governmental official to
deliver to Administrative Secured Party at any time a written statement of any
taxes or other such amounts owing by CompuCom.
5.13 WAIVERS AND CONSENTS. CompuCom shall furnish to Administrative Secured
Party such waivers and consents as may reasonably be requested by Administrative
Secured Party with respect to Administrative Secured Party's security interests
and liens in the Collateral.
5.14 RESTRICTION ON DISPOSITION OF COLLATERAL. CompuCom will not sell or
dispose of any interest in the Collateral except pursuant to the RPA.
5.15 PROHIBITION AGAINST LIENS ON COLLATERAL. CompuCom will not grant,
create or allow to exist any security interest, lien, financing statement or
other encumbrance on any Collateral other than (i) under this Agreement, or (ii)
the Permitted Subordinated Interests. CompuCom will take prompt action as may
be necessary to discharge or dismiss any tax lien notice, judgment, levy,
attachment or other process filed or levied against any of the Collateral.
5.16 COVENANTS CUMULATIVE. The covenants contained in this Article V are
in addition to all other covenants provided in the Administration Documents.
ARTICLE VI. EVENT OF DEFAULT
6.1 EVENT OF DEFAULT. Each of the following shall constitute an Event of
Default under this Agreement:
(a) Any Event of Default defined by the NationsBank FSA;
(b) Any default or breach by CompuCom of any obligation under
the RPA;
(c) Any Termination Event defined by the TAA;
(d) Any violation, breach or default of any covenant, agreement or
other obligation under the Administration Documents;
(e) Any representation or warranty made by CompuCom in the
Administration Documents was false in any material respect at the time when
made;
(f) Material impairment of the enforceability of the interests,
rights or remedies granted to Administrative Secured Party or the
Beneficial Secured Parties under this
20
Agreement, or the taking of any action by any party to this Agreement to
repudiate or challenge same.
ARTICLE VII. REMEDIES
7.1 REMEDIES. Should an Event of Default occur at any time,
Administrative Secured Party may at its option take any or all of the following
actions: (a) notify Account Debtors to make all payments on Receivables directly
to Administrative Secured Party at such address as Administrative Secured Party
shall designate; (b) make demand for payment on Account Debtors and take action
(including without limitation, filing suit) to enforce payment of Receivables,
in the name of Administrative Secured Party (on behalf of the Beneficial Secured
Parties) or CompuCom, as Administrative Secured Party shall determine in its
discretion; (c) take any other action to enforce the collection rights of a
secured party under the Texas UCC; and (d) exercise, enforce and avail itself of
any and all other rights or remedies as may be available under this Agreement or
any other Administration Documents or as otherwise may be available under the
Texas UCC or other applicable law. Administrative Secured Party at all times
shall have the collection rights and all other rights and remedies of a secured
party under the Texas UCC, including but not limited to the right to take
possession of Collections and enforce direct payment of Receivables. To the
extent necessary to protect and enforce its rights under the Administration
Documents, Administrative Secured Party is expressly authorized to receive,
open, and dispose of mail addressed to CompuCom and endorse notes, checks,
drafts, money orders, or other evidences of payment, on behalf of and in the
name of CompuCom. Administrative Secured Party may demand, collect, receipt
for, settle, compromise, adjust, sue for, foreclose or otherwise realize upon
the Receivables as Administrative Secured Party may determine in its discretion.
In collecting or pursuing collection of Receivables, Administrative Secured
Party may utilize CompuCom's books and records, premises, telephones,
telecopiers, copiers, and other facilities, or the services of CompuCom's
personnel, at CompuCom's cost and expense, as may be necessary for prompt and
expedient collection. CompuCom agrees that Administrative Secured Party's use
of such facilities or personnel is a commercially reasonable method of pursuing
timely collection and enforcement of Receivables and that, in taking any such
action, Administrative Secured Party is acting solely in its capacity as a
secured party under the Texas UCC and as attorney in fact and administrator, as
provided by this Agreement. Administrative Secured Party may give verbal or
written notice to any Person who Administrative Secured Party reasonably
believes is or may be an Account Debtor on Receivables and thereby demand
payment of all amounts which may be or become due by such Person on Receivables.
In taking possession of any Collateral, Administrative Secured Party is
authorized to enter upon any premises owned or leased by CompuCom where any
Collateral is located. At its option, Administrative Secured Party may require
CompuCom to assemble the Collateral and make it available to Administrative
Secured Party at a place to be designated by Administrative Secured Party which
is reasonably convenient to both Administrative Secured Party and CompuCom.
CompuCom agrees that Administrative Secured Party shall be entitled to collect
or dispose of any Collateral on CompuCom's premises. Unless the Collateral is
perishable or threatens to decline speedily in value or is of a type customarily
sold on a recognized market, Administrative Secured Party will give CompuCom
reasonable notice of the time and place of any public sale of Collateral or of
the time after which any private sale or any other intended disposition thereof
is to be made. For this purpose, it is agreed that at least five (5) days
notice of the time of sale or other intended disposition of Collateral delivered
in accordance with
21
paragraph 10.3 shall be deemed to be reasonable notice in conformity with the
Texas UCC. Administrative Secured Party may adjourn or otherwise reschedule any
public sale by announcement at the time and place specified in the notice of
such public sale, and such sale may be made at the time and place as so
announced without necessity of further notice. Administrative Secured Party
shall not be obligated to sell or dispose of any Collateral, or to pursue any
particular manner of collection or disposition, notwithstanding any prior notice
of intended disposition. With respect to any instruments or chattel paper at
any time included within the Collateral, Administrative Secured Party shall not
have any duty or obligation to take steps to preserve rights against prior
parties.
7.2 CASH COLLATERAL; INJUNCTIVE RELIEF. All cash proceeds of Collateral
from time to time existing, including without limitation all Collections, at all
times shall be and remain subject to Administrative Secured Party's continuing
security interest, lien and administration under this Agreement, and shall be
subject to an express trust for the benefit of Administrative Secured Party, for
the benefit of the Beneficial Secured Parties. Except as may be specifically
allowed otherwise by this Agreement, CompuCom is expressly prohibited from
using, spending, retaining or otherwise exercising any dominion over such
proceeds, and all such proceeds shall be promptly turned over to Administrative
Secured Party in the form in which they are received by CompuCom, either by
mailing or delivering the same to Administrative Secured Party not later than
the Business Day following receipt thereof by CompuCom. CompuCom acknowledges
and agrees that an action for damages against CompuCom for any breach of the
prohibitions and obligations of this paragraph shall not be an adequate remedy
at law. In the event of any such breach, CompuCom agrees, to the fullest extent
allowed by law, that Administrative Secured Party shall be entitled to
injunctive relief to restrain such breach and require compliance with the
requirements of this Agreement.
7.3 APPLICATION OF PROCEEDS; DEFICIENCY. After deducting all costs, fees
and expenses of collection and enforcement for which CompuCom is obligated to
Administrative Secured Party pursuant to the Administration Documents or
applicable law, any remaining Collections or other proceeds of collection, sale
or disposition of the Collateral shall be deposited to the Concentration Account
and administered according to paragraph 2.1(c), and the excess, if any,
remaining after expiration of the Contract Term shall be held or disbursed by
Administrative Secured Party by mutual agreement among CompuCom, Administrative
Secured Party and the Beneficial Secured Parties or, in the absence of such
mutual agreement, in accordance with applicable law. CompuCom expressly agrees
that it shall remain liable for all Secured Obligations, if any, remaining after
liquidation or other disposition of the Collateral (PROVIDED, that the foregoing
shall not be construed to create any liability of CompuCom under the RPA except
as expressly provided therein).
7.4 WAIVER OF NOTICES. CompuCom expressly waives any notices from
Administrative Secured Party or the Beneficial Secured Parties except as
otherwise expressly provided for and required by this Agreement.
7.5 SETOFF. CompuCom irrevocably authorizes Administrative Secured Party
to charge any account of CompuCom maintained with Administrative Secured Party
with such amount as may be necessary from time to time to pay any Secured
Obligations. CompuCom agrees that Administrative Secured Party shall have a
contractual right to setoff any and all deposits or other sums at any time
credited by or due from Administrative Secured Party to CompuCom against any
part of the Secured Obligations. Such right of setoff may be exercised at any
time by Administrative
22
Secured Party without prior notice, irrespective of whether an Event of Default
exists or whether the Secured Obligations have fully matured. Upon the
occurrence of an Event of Default and for so long as the same shall remain in
existence and is not cured or waived, Administrative Secured Party shall be
entitled in its discretion, without prior notice, to hold any such deposits or
other sums (and return checks or other items presented for payment against same,
and otherwise deny access to same) pending acceleration of any Secured
Obligations. All amounts, if any, charged or set off by Administrative Secured
Party against any Collections shall be deposited to the Concentration Account
and administered as provided by paragraph 2.1(c).
7.6 PERFORMANCE BY ADMINISTRATIVE SECURED PARTY. Should CompuCom fail to
perform any covenant, duty, or agreement required by the Administration
Documents (including without limitation, payment and discharge of any taxes,
liens or encumbrances affecting or potentially affecting the Collateral)
Administrative Secured Party may in its sole discretion perform or attempt to
perform or cause performance of same on behalf of CompuCom at CompuCom's
reasonable cost and expense, PROVIDED that Administrative Secured Party shall
have no obligation or duty to take any such action. CompuCom agrees to
reimburse Administrative Secured Party for such reasonable out-of-pocket costs
and expenses on demand and until paid.
7.7 NON-WAIVER. Forbearance or indulgence by Administrative Secured Party
of any Event of Default or any other event or condition which is or would be the
subject of a required notice under paragraph 5.10, at any time from time to
time, shall not be deemed a waiver of any rights of Administrative Secured Party
under the Administration Documents. The acceptance by Administrative Secured
Party or the Beneficial Secured Parties, at any time and from time to time, of
any partial payment of the Secured Obligations shall not be deemed to be a
waiver of any Event of Default then existing. No delay or omission by
Administrative Secured Party in exercising any right or remedy shall impair such
right or remedy, or be construed as a waiver thereof, nor shall any single or
partial exercise of any such rights or remedies preclude other or further
exercise thereof. Administrative Secured Party shall not be required or
obligated to file suit or otherwise pursue any Account Debtor or other Person
for enforcement or collection of any Receivables or to otherwise take any action
to realize upon any of the Collateral.
7.8 REMEDIES CUMULATIVE. The remedies specified in this Article VII are
cumulative with and in addition to all other rights and remedies provided by
this Agreement and the other Administration Documents, or by applicable law.
ARTICLE VIII. ADMINISTRATION
8.1 ADMINISTRATION. Administrative Secured Party, each of the Beneficial
Secured Parties and CompuCom each agrees as follows:
(a) ADMINISTRATIVE SECURED PARTY: APPOINTMENT; POWERS. Subject to
the terms of this Agreement, each of the Beneficial Secured Parties hereby
irrevocably appoints and authorizes Administrative Secured Party to act as
nominee on behalf of itself and any of the other Beneficial Secured
Parties, in the name of Administrative Secured Party, the Beneficial
Secured Parties or any of them, to take any one or more of the following
actions: Administer
23
the Administration Documents in accordance with their terms, and act or
refrain from acting under the Administration Documents in accordance with
powers delegated to Administrative Secured Party under the Administration
Documents and such other powers as are reasonably incidental thereto;
execute and enter into the Administration Documents; hold the
Administration Documents; hold and enforce the security interests and liens
in the Collateral granted under the Administration Documents; exercise and
enforce rights and remedies in respect of the Receivables as attorney-in-
fact and administrator as provided by paragraph 1.2; receive all documents,
certifications, opinions and other items furnished by CompuCom under the
Administration Documents; take actions as may be requested or instructed by
the Beneficial Secured Parties (PROVIDED, that unless the Administration
Documents specifically require or permit direction or consent by the
Beneficial Secured Parties and, in such event, unless further assurance of
indemnification (if requested by Administrative Secured Party) is furnished
as provided by paragraph 8.1(g), Administrative Secured Party shall not be
obligated to comply with any such instructions); collect, receive and
administer Collections as provided by this Agreement; distribute to the
Beneficial Secured Parties such information, requests and documents
received from CompuCom pursuant to the Administration Documents; and
deliver to CompuCom requests, demands, approvals and consents as required
or allowed under the Administration Documents. Except as otherwise
expressly provided by the Administration Documents, each of the Beneficial
Secured Parties irrevocably authorizes Administrative Secured Party to take
or refrain from taking such actions on the Beneficial Secured Parties'
behalf as Administrative Secured Party in its discretion determines
necessary or appropriate in administering the Administration Documents.
Except as otherwise provided by this Agreement, Administrative Secured
Party may take such action, or refrain from taking such action, in respect
of the Collateral, or in respect of administration of the Administration
Documents, as it may deem in its discretion to be advisable in the
performance of its obligations under this Agreement. Unless otherwise
agreed by Administrative Secured Party, any action taken by Administrative
Secured Party with the consent or at the direction of the Beneficial
Secured Parties shall be deemed to have been taken for and on behalf of
each of the Beneficial Secured Parties. Administrative Secured Party shall
not be required to take action or exercise any remedy except to the extent
expressly required by this Agreement upon direction of the Beneficial
Secured Parties, PROVIDED, that Administrative Secured Party shall not be
required to take any action which Administrative Secured Party believes
would expose it or any of the Beneficial Secured Parties to personal
liability, or which Administrative Secured Party believes is contrary to
any of the Administration Documents or applicable law. Administrative
Secured Party may perform any of its duties under the Administration
Documents by or through officers, directors, employees, attorneys or
agents, and shall be entitled to employ and consult with legal counsel,
independent public accountants, and other experts or consultants and shall
not be liable for any action taken or omitted to be taken in good faith in
accordance with the advice of such counsel, accountants, experts or
consultants, and may rely and act upon any resolution, notice, consent,
certificate, affidavit, letter or other document or instrument or writing,
or any telecopy, fax, telegram, telex or teletype, or any court order, or
any conversation, which it believes to be genuine and correct and to have
been signed or made by the proper Person. Administrative Secured Party
shall be fully protected in acting, or in refraining from acting, under the
Administration Documents in accordance with instructions signed by the
Beneficial Secured Parties, and such instructions and any action or
inaction by
24
Administrative Secured Party pursuant thereto shall be binding on each of
the Beneficial Secured Parties. Neither Administrative Secured Party nor
its affiliates, officers, directors, employees, attorneys, or agents shall
be liable for any action taken or omitted to be taken in connection with
the Administration Documents except for gross negligence or willful
misconduct.
(b) LIMITATION OF SCOPE. Administrative Secured Party's appointment
hereunder is expressly limited as provided in this Agreement.
Administrative Secured Party accepts such appointment solely as a secured
party under the Texas UCC, and as attorney-in-fact and administrator, on
the terms provided by this Agreement. The duties and responsibilities of
Administrative Secured Party under this Agreement are ministerial and
administrative in nature, and it is expressly agreed that Administrative
Secured Party shall not be a fiduciary or trustee on behalf of any Person.
Administrative Secured Party shall have no duties or obligations, express
or implied, except as expressly set forth in this Agreement.
(c) AVAILABILITY OF INFORMATION. Administrative Secured Party will
forward to the Beneficial Secured Parties copies of all reports of a
material nature which are furnished by CompuCom to Administrative Secured
Party, other than those, if any, which by the terms of this Agreement are
to be delivered by CompuCom directly to the Beneficial Secured Parties,
PROVIDED, that Administrative Secured Party shall not have any liability to
any Beneficial Secured Party for failure to do so. Administrative Secured
Party shall promptly notify the Beneficial Secured Parties upon becoming
aware of any Event of Default, PROVIDED, that in the absence of gross
negligence or intentional misconduct Administrative Secured Party shall not
have any liability to any of the Beneficial Secured Parties for failure to
do so, and PROVIDED FURTHER, that Administrative Secured Party shall not be
deemed to have knowledge or notice of any Event of Default (other than
breaches by CompuCom, of which Administrative Secured Party has actual
knowledge, of CompuCom's obligations under paragraph 2.1, or failure of
timely payment to Administrative Secured Party of any costs or fees as
required by the Administration Documents) unless it receives written notice
from CompuCom or any Beneficial Secured Party specifying an event or
condition and designating the same as an Event of Default. Upon request,
Administrative Secured Party will make available to any Beneficial Secured
Party any documents, reports or other items from time to time received from
CompuCom and remaining in Administrative Secured Party's possession.
(d) REQUIRED CONSENT OF BENEFICIAL SECURED PARTIES. Notwithstanding
the authority granted to Administrative Secured Party elsewhere in this
Agreement:
1. The written consent of Administrative Secured Party and all
Beneficial Secured Parties shall be required as a condition to the
effectiveness of any of the following actions: (i) extend the Contract
Term; (ii) release any security interest or lien in any Collateral;
(iii) agree to waive, modify or amend any covenants, agreements or
other provisions contained in Article I ("Security Interest and
Collateral Covenants"), Article II ("Collections Administration") or
Article V ("Covenants"), Article VI ("Event of Default") or Article
VII ("Remedies"), Article VIII ("Administration"), Article IX
("Additional Agreements") or Article X ("Miscellaneous") of this
Agreement; (iv) consent to allow any security interests, liens
25
or encumbrances on any Collateral (other than the Permitted
Subordinated Interests), or consent to allow the disposition of any
Collateral other than as expressly provided by the Administration
Documents; (v) grant any consent or make any agreement which is
expressly subject to the consent of the Beneficial Secured Parties
pursuant to this Agreement; (vi) exercise any remedies under this
Agreement to sell or otherwise dispose of Receivables; (vii) file, or
join with any other Person in filing, any petition against CFI for an
order of relief under the United States Bankruptcy Code or for
receivership or similar relief under any other applicable law; (viii)
agreement to amend this subparagraph (1) of this paragraph 8.1(d).
2. Subject to paragraph 8.1(a), Administrative Secured Party
agrees to take any of the following actions upon written direction of
each and all of the Beneficial Secured Parties, PROVIDED, that in each
instance, such written direction references this paragraph 8.1(d) and
specifically identifies the requested action: (i) request or direct
CompuCom to take any action which may be requested or directed by
Administrative Secured Party under the Administration Documents; (ii)
pursue any remedies provided by the Administration Documents; or (iii)
perform or take any action which may be taken by Administrative
Secured Party under the Administration Documents.
3. Subject to paragraph 8.1(a), Administrative Secured Party
agrees to take any of the following actions upon written direction of
any Beneficial Secured Party, PROVIDED, that in each instance, such
written direction references this paragraph 8.1(d) and specifically
identifies the requested action: (i) request information from CompuCom
which may be requested by Administrative Secured Party under the
Administration Documents or (ii) report requested information
regarding Collections administration under Article II.
Notwithstanding the foregoing, no consent shall be required with respect to
any action if Administrative Secured Party is required to take any such
action by court order or applicable law. Otherwise, except as provided or
referenced above, Administrative Secured Party may amend, modify or waive
any of the terms of the Administration Documents, consent to any action or
failure to act by CompuCom, or exercise or refrain from exercising any
powers or rights which it may have under the Administration Documents or as
a matter of law, without the requirement of prior notice to or consent of
the Beneficial Secured Parties. Any consent requested by Administrative
Secured Party from any Beneficial Secured Party, and any directive, consent
or refusal of consent given to Administrative Secured Party by any
Beneficial Secured Party, shall be communicated as provided in paragraph
10.3. In the event any consent requested by Administrative Secured Party
is not granted or refused within ten (10) days after it is requested by
Administrative Secured Party, the same shall be deemed to have been
granted.
(e) LIMITATION OF ADMINISTRATIVE SECURED PARTY'S LIABILITY. Neither
Administrative Secured Party nor any of its officers, directors, employees,
attorneys or agents shall be liable for any action taken or omitted to be
taken in connection with the Administration Documents in conformity with
instructions or consents of any Beneficial Secured Party, or based upon
26
its belief that such action or inaction is within the discretion or power
conferred to Administrative Secured Party under the Administration
Documents, nor shall Administrative Secured Party or any of such officers,
directors, employees, attorneys or agents be liable for the consequences of
any error of judgment, except for gross negligence or wilful misconduct.
Administrative Secured Party shall not be responsible to the Beneficial
Secured Parties for the due execution, validity, effectiveness,
enforceability, or sufficiency of this Agreement or any of the other
Administration Documents, or for any recitals, representations or
warranties, reports, statements contained in the Administration Documents
or furnished in connection therewith, or for the perfection or value of any
Collateral or for any failure by any other Person to perform any
obligations under the Administration Documents. Administrative Secured
Party shall have no liability to any Beneficial Secured Party with respect
to ascertaining or confirming performance or observation by CompuCom of any
terms, covenants or conditions of any Administration Documents.
(f) EXPENSES. Each Beneficial Secured Party severally agrees to
reimburse Administrative Secured Party promptly upon demand for its Pro
Rata Percentage share of any and all out-of-pocket expenses (including
reasonable attorneys' fees) incurred by Administrative Secured Party in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement of the Administration Documents, and
legal advice in respect of rights or obligations thereunder (whether in
connection with negotiations, legal proceedings, or otherwise) to the
extent that any such expenses are not paid or reimbursed to Administrative
Secured Party by CompuCom or from other sources within 60 days after
request for payment or reimbursement is made to CompuCom (PROVIDED that any
such payment by any Beneficial Secured Party to Administrative Secured
Party shall be without prejudice to the right to contest such Beneficial
Secured Party's obligation to make such payment, AND PROVIDED FURTHER, that
EFC shall make any such reimbursement only to the extent that it has
received sufficient funds from all sellers of accounts to it in excess of
the amount necessary to pay matured and maturing commercial paper). To the
extent any such expenses are recovered by Administrative Secured Party from
CompuCom or other sources after any such amounts have been paid to
Administrative Secured Party by any Beneficial Secured Party(ies), the
amount so recovered shall be refunded by Administrative Secured Party to
each such paying Beneficial Secured Party ratably according to its
respective payments.
(g) INDEMNIFICATION. Each Beneficial Secured Party hereby severally
indemnifies, in accordance with its Pro Rata Percentage, and holds harmless
Administrative Secured Party from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses and/or disbursements of any kind or nature whatsoever which may be
imposed on, asserted against, or incurred by Administrative Secured Party
in any way with respect to any Administration Documents (including without
limitation as may arise as a result of any order of a court of competent
jurisdiction pursuant to which Administrative Secured Party is required to
refund, repay or otherwise return any Collections to any other Person) or
any action taken or omitted by Administrative Secured Party under the
Administration Documents, except to the extent the same is caused by gross
negligence or wilful misconduct by Administrative Secured Party (IT BEING
ACKNOWLEDGED THAT IT IS THE EXPRESS INTENTION OF ADMINISTRATIVE SECURED
PARTY AND THE BENEFICIAL SECURED PARTIES THAT
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SUCH INDEMNIFICATION AND HOLD HARMLESS OBLIGATIONS SHALL INCLUDE ANY SUCH
ACTIONS OR INACTIONS WHICH ARE A RESULT OF NEGLIGENCE OTHER THAN GROSS
NEGLIGENCE), PROVIDED, that EFC's obligation to make payment under the
foregoing indemnity is limited to the extent that it has received
sufficient funds from all sellers of accounts to it in excess of the amount
necessary to pay matured and maturing commercial paper). Prior to
compliance with any instructions by the Beneficial Secured Parties under
the Administration Documents, Administrative Secured Party shall be
entitled to request further assurance of any such indemnification in form
satisfactory to Administrative Secured Party, and unless and until such
further assurance is provided to Administrative Secured Party,
Administrative Secured Party shall have no obligation to comply with such
instructions and may disregard same.
(h) REPLACEMENT OF ADMINISTRATIVE SECURED PARTY. Subject to the
following, Administrative Secured Party may resign as Administrative
Secured Party at any time by giving written notice of such resignation to
the Beneficial Secured Parties and CompuCom, and Administrative Secured
Party may be removed upon written notice by unanimous consent of the
Beneficial Secured Parties. Should Administrative Secured Party give any
such notice of its resignation as Administrative Secured Party, or should
the Beneficial Secured Parties give any such notice of removal, then the
Beneficial Secured Parties collectively shall forthwith appoint another
Person, acceptable to them and to CompuCom (such acceptance not to be
unreasonably withheld or delayed), to become Administrative Secured Party,
whereupon such newly appointed Person shall thereafter be Administrative
Secured Party and CompuCom and the Beneficial Secured Parties shall execute
such documents as any Beneficial Secured Party may reasonably request to
reflect such change. Any resignation or removal of Administrative Secured
Party shall become effective upon the appointment of a successor
Administrative Secured Party (PROVIDED, that if the Beneficial Secured
Parties fail for any reason to appoint a successor within sixty (60) days
after written notice of such resignation or removal, Administrative Secured
Party shall thereafter have no obligation to act as Administrative Secured
Party hereunder). Any Person appointed as successor Administrative Secured
Party as provided above shall be deemed to accept such appointment, and
such successor Administrative Secured Party shall thereupon succeed to and
become vested with all rights, powers, privileges, immunities, and duties
of the resigning or removed Administrative Secured Party, and the resigning
or removed Administrative Secured Party shall be discharged from its duties
and obligations under this Agreement and the other Administration
Documents. After any Administrative Secured Party's resignation or removal
as Administrative Secured Party, the provisions of this Article VIII shall
continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was Administrative Secured Party.
NationsBank has been appointed as Administrative Secured Party, and has
accepted such appointment, subject to the terms of this Agreement, as of
the Effective Date. As of the Effective Date, NationsBank has assigned
administration of its functions as Administrative Secured Party to
NationsBank Business Credit, an unincorporated division of NationsBank, and
at EFC's request hereby agrees that it will not transfer such
administration to any other division unless such division is acceptable to
Beneficial Secured Parties (such acceptance not be unreasonably withheld or
delayed).
(i) RIGHTS OF ADMINISTRATIVE SECURED PARTY AS BENEFICIAL SECURED
PARTY. Any Beneficial Secured Party who serves as Administrative Secured
Party shall nonetheless
28
continue to have the same rights as a Beneficial Secured Party, in its
individual corporate capacity as a Beneficial Secured Party, as any other
Beneficial Secured Party and may exercise the same as though it were not
acting as Administrative Secured Party, and unless the context indicates
otherwise, to the extent that Administrative Secured Party in its
individual capacity is a Beneficial Secured Party, the term "Beneficial
Secured Party" or "Beneficial Secured Parties," wherever used in the
Administration Documents shall include the Administrative Secured Party in
its individual corporate capacity as a Beneficial Secured Party.
(j) INDEPENDENT CREDIT DECISIONS. Each Beneficial Secured Party
represents, warrants and agrees that it has made its own underwriting
analysis of CompuCom and its own evaluation and valuation of the Collateral
and has made its own decision to enter into this Agreement independently
and without reliance on Administrative Secured Party or any other
Beneficial Secured Party and based on such documents and information as it
has deemed appropriate. Each Beneficial Secured Party further acknowledges
and agrees that it will continue to make its own analysis and decisions in
taking or not taking action under this Agreement or any of the other
Administration Documents, independently and without reliance upon
Administrative Secured Party or any other Beneficial Secured Party and
based upon such documents and information as it shall deem appropriate at
the time. Each Beneficial Secured Party acknowledges that it shall have no
right to rely upon Administrative Secured Party to inform it of the
financial conditions or creditworthiness of CompuCom or the condition,
value, marketability or other conditions in respect of the Collateral.
Upon written request by any Beneficial Secured Party, Administrative
Secured Party will make any documents, reports or other information
received by Administrative Secured Party from CompuCom and designated in
such request available to such Beneficial Secured Party. Otherwise, except
as specifically provided in this Agreement, Administrative Secured Party
shall not have any duty or responsibility to provide any Beneficial Secured
Party with any credit or other financial information concerning the
affairs, financial condition or business of CompuCom or any of its
subsidiaries or affiliates.
(k) SEVERAL COMMITMENTS. Administrative Secured Party shall not be
liable to CompuCom or any Beneficial Secured Party for any act or omission
by any Beneficial Secured Party, and no Beneficial Secured Party shall be
responsible to CompuCom or any other Beneficial Secured Party for any act
or omission of any other Beneficial Secured Party.
(l) COLLECTION ADMINISTRATION: LOCKBOX; AGENCY ACCOUNTS. On and
after the Effective Date and continuing through the end of the Contact
Term, for so long as NationsBank is serving in the capacity as
Administrative Secured Party, it is agreed that (i) the lockbox presently
established and operating in connection with the NationsBank FSA shall be
deemed to be the Lockbox and (ii) each agency account presently established
and operating in connection with the NationsBank FSA shall be deemed to be
an Agency Account, and all Collections during any such period, from time to
time, received or deposited thereto, respectively, shall be deemed to have
been received by Administrative Secured Party solely pursuant, and subject
to, the terms of this Agreement.
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(m) BENEFITS. CompuCom expressly acknowledges and agrees to the
provisions of this Article VIII, PROVIDED, that none of the provisions of
this Article shall inure to the benefit of CompuCom or any Person other
than Administrative Secured Party and the Beneficial Secured Parties.
CompuCom shall not be entitled to rely upon, or to raise as a defense, any
failure of Administrative Secured Party or any Beneficial Secured Party to
comply with such provisions. Subject to the requirements of paragraph
8.1(d)1, CompuCom shall be entitled to rely on actions, agreements and
consents of Administrative Secured Party in connection with administering
the Administration Documents as the actions, agreements and consents of all
Beneficial Secured Parties.
ARTICLE IX. ADDITIONAL AGREEMENTS
In consideration of the mutual benefits under this Agreement,
Administrative Secured Party and the Beneficial Secured Parties each agrees
among themselves as follows:
9.1 EQUAL DIGNITY. The rights and interests pertaining to the CompuCom
Interest and the RPA Interest, under this Agreement or otherwise, are of equal
dignity and neither shall enjoy or be entitled to any right or benefit in
priority or preference over the other. All such rights and interests, and all
proceeds thereof, shall be shared by the Beneficial Secured Parties according to
their respective Pro Rata Percentage.
9.2 PRO-RATA TREATMENT AMONG BENEFICIAL SECURED PARTIES. All Collections
and other proceeds of Receivables at any time received by Administrative Secured
Party shall be for the account of the Beneficial Secured Parties in accordance
with their respective Pro Rata Percentage as of the time of Administrative
Secured Party's receipt thereof.
9.3 SUBORDINATION OF INTERESTS.
a. As among Administrative Secured Party and the Beneficial Secured
Parties only and subject to paragraph 9.3(e), NationsBank agrees that all
valid and perfected rights and interests pertaining to the CompuCom
Interest and the RPA Interest under this Agreement are and shall be first,
senior and prior to any other rights now or hereafter claimed therein by
NationsBank, whether under the NationsBank FSA or otherwise, and all
security interests, collateral assignments, pledges, liens, mortgages,
rights or other interests now or hereafter claimed by NationsBank with
respect to the Collateral (other than its interest as a Beneficial Secured
Party under this Agreement) shall be and hereby are expressly subordinated
and made junior to all such valid and perfected rights and interests
pertaining to the CompuCom Interest and the RPA Interest under this
Agreement.
b. All sales and transfers of the RPA Interest under the RPA are
expressly subject to the interests granted or delegated to Administrative
Secured Party under this Agreement. As among Administrative Secured Party
and the Beneficial Secured Parties only and subject to paragraph 9.3(e),
CFI agrees that all valid and perfected rights and interests pertaining to
the CompuCom Interest and the RPA Interest under this Agreement are and
shall be first, senior and prior to any other rights now or hereafter
claimed therein by CFI, whether under
30
the RPA, the TAA or otherwise, and any and all security interests,
collateral assignments, pledges, liens, mortgages, rights or other
interests now or hereafter claimed by CFI with respect to the Collateral
(other than its interest as a Beneficial Secured Party under this
Agreement) shall be and hereby are expressly subordinated and made junior
to all such valid and perfected rights and interests pertaining to the
CompuCom Interest and the RPA Interest under this Agreement. CFI agrees
that it will not sell or transfer any RPA Interest to any Person except EFC
pursuant to the TAA subject to the rights of Administrative Secured Party
and the Beneficial Secured Parties under this Agreement.
c. All sales and transfers of any portion of the RPA Interest under
the TAA are expressly subject to the interests granted to Administrative
Secured Party under this Agreement. As among Administrative Secured Party
and the Beneficial Secured Parties only, and subject to paragraph 9.3(e),
EFC agrees that all valid and perfected rights and interests pertaining to
the CompuCom Interest and the RPA Interest under this Agreement are and
shall be first, senior and prior to any rights now or hereafter claimed
therein by EFC (or any assignee of EFC under the TAA), whether under the
TAA or otherwise and any and all security interests, collateral
assignments, pledges, liens, mortgages, rights or other interests now or
hereafter claimed by EFC (or any assignee of EFC under the TAA) with
respect to the Collateral (other than EFC's interest as a Beneficial
Secured Party under this Agreement) shall be and hereby are expressly
subordinated and made junior to all such valid and perfected rights and
interests pertaining to the CompuCom Interest and the RPA Interest under
this Agreement. CompuCom, CFI and EFC each agree that the RPA and the TAA
at all times will contain provisions expressly providing that all rights
and interests in the RPA Interest conveyed or claimed thereunder are
subject to the rights and interests of Administrative Secured Party under
this Agreement. EFC agrees that it will not sell or transfer any portion
of the RPA Interest to any Person (except assignments of EFC's rights
therein to the limited extent provided by the TAA as of the Effective Date,
PROVIDED that any such portions of the RPA Interests assigned pursuant to
any such assignments shall at all times be and remain subject to the rights
of Administrative Secured Party under the Administration Documents).
d. The Beneficial Secured Parties each agrees, among themselves,
that until termination of this Agreement, if it from time to time comes
into possession of any Collections other than as provided by paragraph
2.1(c) this Agreement, all of such amounts shall be received in trust for
the benefit of the Beneficial Secured Parties according to their respective
Pro Rata Percentages and shall be paid forthwith to Administrative Secured
Party, for the account of the Beneficial Secured Parties, for deposit to
the Concentration Account and administration under paragraph 2.1(c) of this
Agreement. In the event any Beneficial Secured Party is required to
deliver to Administrative Secured Party any amounts received by such
Beneficial Secured Party in respect of Collections as required by this
paragraph 9.3(d) then, for purposes of this paragraph 9.3(d) and clause (1)
of the definition of "Contract Term" in the Definitions of this Agreement,
such Beneficial Secured Party shall be deemed to have received payment in
respect of such Collections only to the extent that it actually receives
payment of its Pro Rata Percentage thereof from Administrative Secured
Party pursuant to this paragraph 9.3(d).
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e. As among Administrative Secured Party and the Beneficial Secured
Parties only, the subordinations, priorities and agreements specified in
paragraph 9.3(a), paragraph 9.3(b) and paragraph 9.3(c) are applicable
irrespective of the time or order of filing of financing statements with
respect thereto, PROVIDED, that such subordinations, priorities and
agreements are SOLELY for the respective benefit of Administrative Secured
Party and the Beneficial Secured Parties, as a separate contractual
agreement among themselves only, and shall not in any event operate,
entitle or be construed to allow any other Person (specifically including
without limitation any trustee in bankruptcy) to any rights or priority
over Administrative Secured Party or the Beneficial Secured Parties, or any
of them. The subordinations, priorities and agreements specified in
paragraph 9.3(a), paragraph 9.3(b) and paragraph 9.3(c) shall not be
effective to the extent, if any, that any rights or interests pertaining to
the CompuCom Interest or the RPA Interest for any reason are determined by
a court of competent jurisdiction to be invalid, unenforceable, unperfected
or avoidable, or subordinate to any Person other than Administrative
Secured Party and the Beneficial Secured Parties.
f. Each of the Beneficial Secured Parties may release any Person now
or hereafter liable to such Beneficial Secured Party upon any of the
Secured Obligations, or permit substitutions, or renew, increase, extend or
accept partial payments upon any of the Secured Obligations, or amend or
modify the terms of any instrument or agreement evidencing or otherwise
securing same, or any part thereof, in such manner and at such times from
time to time, as it may determine in its sole discretion, without notice to
or consent from the other, and without in any manner impairing the rights
and obligations under this Agreement (PROVIDED, that the foregoing shall
not impair any condition or requirement imposed upon CompuCom by any
Beneficial Secured Party pursuant to the FSA, the RPA or the TAA,
respectively).
g. Until termination of this Agreement each of NationsBank, CFI and
EFC each agrees, for itself and its successors and assigns, that it will
not take any action to foreclose, repossess, marshal, control, or exercise
remedies or other rights with respect to any Collateral, whether pursuant
to the NationsBank FSA, the RPA or the TAA, respectively, or otherwise
(subject to NationsBank's prior rights in respect of returned inventory
under the FSA as provided in paragraph 9.3(h)), PROVIDED, that the
foregoing shall not prohibit or restrict NationsBank, CFI or EFC from
asserting and protecting their respective interests in the Collateral in
any bankruptcy proceeding, SUBJECT AT ALL TIMES HOWEVER, to all other terms
and provisions of this Agreement.
h. Notwithstanding any other provisions in this Agreement regarding
rights and relative priorities of interests among Administrative Secured
Party and the Beneficial Secured Parties, it is agreed that all rights and
interests, if any, of Administrative Secured Party, CFI and EFC,
respectively, at any time arising in returned inventory shall be subject to
the prior rights and interests of NationsBank in returned inventory under
the FSA and perfected rights, if any, in returned inventory in favor of any
Person who is a seller of inventory to CompuCom, existing as of the
Effective Date.
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i. Notwithstanding the sale and transfer by CompuCom to CFI of the
RPA Interest pursuant to the RPA, and any contemporaneous or subsequent
transfer of a portion thereof by CFI to EFC, from time to time, and
notwithstanding anything to the contrary contained in the RPA or the TAA,
for so long as CompuCom is owner of the CompuCom Interest and until
termination of this Agreement, CFI and EFC each agrees, for itself and its
successors and assigns, that (i) for so long as no Event of Default is in
existence and continuing, CompuCom shall have the sole and exclusive right
to service, administer and collect the Receivables, SUBJECT AT ALL TIMES,
HOWEVER, to the administration of Collections as provided in Article II and
all other rights, interests and remedies of Administrative Secured Party
under the terms and provisions of this Agreement, and no notice or action
under the RPA or TAA shall be effective to limit or preclude such rights of
CompuCom or grant rights to any Person which are inconsistent or in
conflict therewith, (ii) following the occurrence and during the existence
of any Event of Default, any Person other than CompuCom who is appointed to
service Receivables under the RPA or who is appointed as "Collection Agent"
under the TAA shall be a Person that is acceptable to Administrative
Secured Party and the Beneficial Secured Parties, and (iii) without the
prior written consent of Administrative Secured Party, neither CompuCom,
CFI or EFC will exercise any dominion over any Collateral except proceeds
of Collections deposited to the CFI Account pursuant to paragraph 2.1, or
notify any Account Debtor of CompuCom's transfer to CFI of the RPA Interest
or of CFI's transfer of a portion thereof to EFC.
j. Except as expressly provided in this Agreement, nothing in this
Agreement shall limit or restrict (i) NationsBank in the exercise of rights
and remedies under the FSA, (ii) CFI in the exercise of rights and remedies
under the RPA or (iii) EFC in the exercise of rights and remedies under the
TAA or, as assignee of CFI, the exercise of rights and remedies under the
RPA.
k. In the event of any bankruptcy of CompuCom or CFI, until
termination of this Agreement Administrative Secured Party shall have the
right, and hereby is irrevocably authorized by the Beneficial Secured
Parties, to assert Administrative Secured Party's rights, on behalf of the
Beneficial Secured Parties, to receive, collect and administer the
Receivables in accordance with the provisions of the Administration
Documents.
l. The agreements in this paragraph 9.3 are irrevocable and
continuing, and the Beneficial Secured Parties may continue to rely upon
same in making financial accommodations to or for the account of CompuCom,
without notice to the other except as otherwise provided in this Agreement.
9.4 OTHER RIGHTS; WAIVER OF MARSHALING. Each of NationsBank, CFI and EFC
waives marshaling as to the other, and agrees that each shall be entitled to
pursue rights and remedies against CompuCom or in respect of property of
CompuCom other than the Collateral as may be provided by any other agreement.
9.5 ACCESS TO INFORMATION. In consideration of the mutual benefits of
this Agreement, each of NationsBank, CFI and EFC agrees that, upon request, it
will provide to Administrative Secured Party any information available to it in
respect of CompuCom or the Collateral for the
33
purpose of assisting Administrative Secured Party in administering this
Agreement or enforcing and collecting Receivables. CompuCom expressly agrees
and consents to the providing of any such information for such purpose.
9.6 PAYMENTS BY ADMINISTRATIVE SECURED PARTY. Administrative Secured
Party shall have no further duty or obligations in respect of any Collections
following administration and transfer thereof in compliance with the
requirements of paragraph 2.1. Each Beneficial Secured Party, severally
according to its respective Pro Rata Percentage, agrees to promptly reimburse
Administrative Secured Party for any checks or items deposited to the
Concentration Account and transferred to such Beneficial Secured Party pursuant
to paragraph 2.1 which are returned unpaid for any reason, PROVIDED, that EFC
shall make any such reimbursement only to the extent that it has received
sufficient funds from all sellers of accounts to it in excess of the amount
necessary to pay matured and maturing commercial paper. In the event EFC, CFI,
or any Person claiming through or under either of them, including any assignee
under the TAA, at any time makes demand upon Administrative Secured Party for
payment of any amount in respect of Collections relative to the RPA Interest,
Administrative Secured Party shall be fully protected in depositing such amount
to the CFI Account or, at Administrative Secured Party's option in its sole
discretion, making such payment jointly payable to CFI and any such claimant and
delivering same to an officer of CFI or such claimant, and in either of such
instances, Administrative Secured Party shall be fully released and discharged
from further duty or obligation in respect of such amount.
9.7 NOTICES, CONSENTS, AGREEMENTS REGARDING EFC. Any notice, consent or
agreement to or by EFC or any of its permitted assigns pursuant to or in
connection with the Administration Documents shall be effective for all purposes
if given or made to or by the Person serving in the capacity as "Agent" under
the TAA, and the same shall be deemed valid and binding for all purposes of this
Agreement as having been given or made to or by EFC.
9.8 LIMITATION. CompuCom expressly acknowledges and agrees to the
provisions of this Article IX, PROVIDED, that none of the provisions of this
Article IX shall inure to the benefit of CompuCom. CompuCom shall not be
entitled to rely upon, or to raise as a defense, any matters contained in this
Article IX. Notwithstanding anything in this Agreement to the contrary,
NationsBank, CFI and EFC may amend or modify any agreement contained in this
Article IX by mutual agreement in writing among themselves without necessity of
joinder or consent by any other Person.
ARTICLE X. MISCELLANEOUS
10.1 EFFECTIVE DATE; TERM; TERMINATION. This Agreement shall become
effective upon acceptance by Administrative Secured Party, as of the Effective
Date and shall continue in full force and effect through the end of the Contract
Term.
10.2 PAYMENTS. All Collections received to the Concentration Account after
the time for closing business on any Business Day as internally established by
applicable depository bank, or otherwise received by Administrative Secured
Party after its internally established time for closing business on any Business
Day, shall be deemed received as of the next succeeding Business Day.
34
10.3 NOTICES. Any consent, approval, notice, request, or demand from one
party to another must be made in writing to be effective, and shall be deemed to
have been given on the third Business Day after its deposit in the United States
mail, postage prepaid and properly addressed, by certified or registered mail,
return receipt requested, or on the Business Day
on which it is actually delivered by messenger delivery, telecopy or other
electronic transmission, whichever is earlier. The address of each party for
the purposes hereof is as follows:
COMPUCOM:
CompuCom Systems, Inc.
10100 North Central Expressway
Dallas, Texas 75231
Attention: Mr. Dan Celoni, Treasurer
Telecopy: 214-265-5449
ADMINISTRATIVE SECURED PARTY:
NationsBank of Texas, N.A.,
Administrative Secured Party
MAILING ADDRESS: P.O. Box 830732
Dallas, Texas 75283-0732
MESSENGER DELIVERY: NationsBank Plaza, 6th Floor
901 Main Street
Dallas, Texas 75202
Attention: Business Credit/Regional Manager: URGENT
Telecopy: (214) 508-3501
NATIONSBANK
NationsBank of Texas, N.A.
MAILING ADDRESS: P.O. Box 830732
Dallas, Texas 75283-0732
MESSENGER DELIVERY: NationsBank Plaza, 6th Floor
901 Main Street
Dallas, Texas 75202
Attention: Business Credit/Regional Manager: URGENT
Telecopy: (214) 508-3501
CFI:
CSI Funding, Inc.
10100 North Central Expressway
Dallas, Texas 75231
Attention: Mr. Dan Lane, Vice President and Secretary
Telecopy: 214-265-5449
35
EFC:
Enterprise Funding Corporation
c/o Merrill Lynch Money Markets, Inc.
World Financial Center--South Tower
225 Liberty Street
New York, New York 10281
Telecopy: 212-236-7584
with a copy to:
NationsBank, N.A.
NationsBank Corporate Center, 10th Floor
Charlotte, North Carolina 28255
Attention: Michelle M. Heath, Investment Banking
Telecopy: 704-388-9169
or such other address as may hereafter be designated and delivered in writing.
10.4 BENEFIT TO COMPUCOM. This Agreement is executed at the request of
CompuCom for the purpose of establishing a means by which CompuCom may utilize
its Receivables to access working capital sources VIA the NationsBank FSA and
the RPA, as CompuCom shall determine. CompuCom acknowledges that it has and
will continue to receive direct equivalent value for the interests granted
pursuant to this Agreement. CompuCom acknowledges and agrees that (i)
Administrative Secured Party's agreement to serve in such capacity and perform
its duties under the Administration Documents, (ii) NationsBank's agreements
under the NationsBank FSA (including, without limitation, as evidenced by the
Fifth Amendment to Financing and Security Agreement of even date herewith) and
(iii) CFI's agreements under the RPA and EFC's agreements under the TAA,
respectively, each separately and also collectively together, constitutes value
given to CompuCom for purposes of Section 9.203(a)(2) of the Texas UCC.
10.5 ADMINISTRATIVE SECURED PARTY. CompuCom and the Beneficial Secured
Parties have designated NationsBank, in its capacity as Administrative Secured
Party, to serve as Administrative Secured Party as provided by this Agreement.
Each party to this Agreement, for itself and its successors and assigns,
acknowledges that (i) NationsBank is a creditor of CompuCom and that CFI is a
wholly owned subsidiary of CompuCom, (ii) NationsBank, N.A., which is an
affiliate of NationsBank, is a party to the TAA as Agent thereunder, and also is
a Bank Investor, the Liquidity Support Provider and the Credit Support Provider,
as such terms are defined, and as provided, thereunder, (iii) appointment of
NationsBank to serve as Administrative Secured Party is not a condition or
prerequisite to execution or performance of this Agreement, and each of
CompuCom, NationsBank, CFI and EFC has indicated its willingness to enter into
this Agreement with the Administrative Secured Party being a Person other than
NationsBank, PROVIDED that any such Person otherwise is acceptable to all
parties.
10.6 EXERCISE OF RIGHTS. The Beneficial Secured Parties shall not at any
time be required to institute suit or exercise or exhaust remedies against any
Person obligated to pay any of the
36
Secured Obligations, or against any other property or other security of the
payment of same, prior to exercise by Administrative Secured Party of the rights
under this Agreement.
10.7 ADMINISTRATIVE SECURED PARTY'S RECORDS; ACCOUNT STATEMENTS.
Administrative Secured Party's records in respect of Collections administered
under this Agreement shall be deemed conclusive absent demonstration of error
and all statements of account rendered by Administrative Secured Party to
CompuCom relating same shall be presumed to be correct and accurate unless,
within thirty (30) days after receipt thereof, CompuCom shall notify
Administrative Secured Party in writing of any claimed error therein.
10.8 INDEMNITY. CompuCom hereby indemnifies and agrees to hold harmless
and defend all Indemnified Persons from and against any and all Indemnified
Claims. Upon notification and demand, CompuCom agrees to provide defense of any
Indemnified Claim and pay all costs and expenses of counsel selected by any
Indemnified Person in respect thereof. Any Indemnified Person against whom any
Indemnified Claim may be asserted reserves the right to settle or compromise any
such Indemnified Claim as such Indemnified Person may determine in its/his/her
sole discretion, and the obligations of such Indemnified Person, if any,
pursuant to any such settlement or compromise shall be deemed included within
the Indemnified Claims. The indemnification provided for in this paragraph
shall survive any termination of this Agreement and shall continue for the
benefit of all Indemnified Persons. Except as specifically provided in this
paragraph, CompuCom waives all notices from any Indemnified Person.
10.9 INTEREST LIMITATION. CompuCom expressly agrees that any provision
contained in the NationsBank FSA, the RPA, the TAA or any other agreement
between CompuCom and NationsBank, CFI or EFC, respectively, pertaining to
limitations on the maximum rate of interest that may be contracted, charged or
received in connection therewith shall be deemed applicable to any payments,
rights or benefits paid or accrued to such party under the Administration
Documents.
10.10 COSTS AND EXPENSES. CompuCom agrees to pay all costs and
expenses incurred by Administrative Secured Party in connection with the
Administration Documents, including without limitation: (i) negotiation,
preparation and closing of the Administration Documents, including attorneys
fees and disbursements, search fees, filing and recording fees, (ii) ongoing
administration of the Administration Documents, including without limitation,
fees and costs incurred in consultation with attorneys, (iii) negotiation,
preparation and closing of any amendment, waiver or consent relating to the
Administration Documents, including attorneys fees and disbursements, search
fees, filing and recording fees, and (iv) enforcing any provision of the
Administration Documents, collection and pursuit of collection and enforcement
of Receivables, taking possession, exercising any rights or remedies or pursuing
or defending any claim arising out of, or in any way relating to the
Administration Documents, including without limitation fees and costs of
attorneys, experts or other consultants retained by Administrative Secured Party
in connection therewith and any other costs, fees or expenses for which CompuCom
isobligated pursuant to any other provision of the Administration Documents.
CompuCom will pay any applicable stamp, registration, recordation and similar
taxes, fees and charges in respect of the Collateral or perfection or
maintenance of Administrative Secured Party's rights under the Administration
Documents, and agrees to indemnify Administrative Secured Party against any
liabilities resulting from any delay, deferral or omission in payment of any
such taxes, fees or charges. All fees, costs and expenses for which CompuCom is
37
obligated under the Administration Documents shall be payable to Administrative
Secured Party on demand.
10.11 ACCEPTANCE AND PERFORMANCE; VENUE. This Agreement shall become
effective only upon acceptance by Administrative Secured Party at its offices in
Dallas, Dallas County, Texas. This Agreement is performable at Administrative
Secured Party's offices in Dallas, Dallas County, Texas, such acceptance to be
conclusively established by execution of this Agreement by Administrative
Secured Party. CompuCom and Administrative Secured Party each agree that Dallas
County, Texas shall be the exclusive venue for litigation of any dispute or
claim arising under or relating to the Administration Documents, and that such
county is a convenient forum in which to decide any such dispute. CompuCom and
Administrative Secured Party each consents to the personal jurisdiction of the
state and federal courts located in Dallas County, Texas for the litigation of
any such dispute or claim.
10.12 WAIVER OF TRIAL BY JURY. THE PARTIES HERETO AGREE THAT NO PARTY
SHALL REQUEST A TRIAL BY JURY IN THE EVENT OF LITIGATION BETWEEN THEM CONCERNING
THE LOAN DOCUMENTS OR ANY CLAIMS OR TRANSACTIONS IN CONNECTION THEREWITH, IN
EITHER A STATE OR FEDERAL COURT, THE RIGHT TO TRIAL BY JURY BEING EXPRESSLY
WAIVED. ADMINISTRATIVE SECURED PARTY, COMPUCOM, AND BENEFICIAL SECURED PARTIES
EACH ACKNOWLEDGE THAT SUCH WAIVER IS MADE WITH FULL KNOWLEDGE AND UNDERSTANDING
OF THE NATURE OF THE RIGHTS AND BENEFITS WAIVED HEREBY, AND WITH THE BENEFIT OF
ADVICE OF COUNSEL OF ITS CHOOSING.
10.13 COPIES VALID AS FINANCING STATEMENTS. CompuCom grants to
Administrative Secured Party a special power of attorney to sign CompuCom's
name, on behalf of CompuCom, to any financing statement describing the
Collateral, or any part thereof, or to any amendment of any financing statement
filed pursuant to this Agreement, and to file such financing statement or
amendment in any jurisdiction deemed necessary by Administrative Secured Party
to perfect Administrative Secured Party's interests under this Agreement. A
carbon, photographic or other reproduction, including photocopy, telecopy or
electronic transmission, of this Agreement or any financing statement shall be
sufficient as a financing statement and may be filed as an original.
10.14 GOVERNING LAW. THIS AGREEMENT, AND ALL DOCUMENTS AND INSTRUMENTS
EXECUTED IN CONNECTION HEREWITH, SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO
THE LAWS OF THE STATE OF TEXAS, PROVIDED, THAT TO THE EXTENT FEDERAL LAW WOULD
ALLOW A HIGHER RATE OF INTEREST THAN WOULD BE ALLOWED BY THE LAWS OF THE STATE
OF TEXAS, THEN WITH RESPECT TO THE PROVISIONS OF ANY LAW WHICH PURPORTS TO LIMIT
THE AMOUNT OF INTEREST THAT MAY BE CONTRACTED FOR, CHARGED OR RECEIVED IN
CONNECTION WITH ANY OF THE OBLIGATIONS, SUCH FEDERAL LAW SHALL APPLY.
10.15 ENTIRETY AND AMENDMENTS. This Agreement embodies the entire
agreement between the parties relating to the subject matter hereof, and may be
modified or amended only by an instrument in writing executed by an authorized
officer of each of Administrative Secured Party, each of the Beneficial Secured
Parties and CompuCom. It is expressly agreed that no conversations, statements,
negotiations or other verbal communications between Administrative Secured Party
and
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CompuCom, nor any purported modification or amendment, or waiver, shall be
binding unless the same is evidenced in writing executed by an authorized
officer of each of Administrative Secured Party, each of the Beneficial Secured
Parties and CompuCom.
10.16 PARTIES BOUND. This Agreement shall be binding upon and inure to
the benefit of CompuCom, Administrative Secured Party and the Beneficial Secured
Parties, and their respective successors in interest. CompuCom may not assign
any right, power, duty, or obligation under this Agreement, or any document or
instrument executed in connection herewith, without the prior written consent of
Administrative Secured Party and each Beneficial Secured Party. Neither CFI nor
EFC may assign any right, power, duty, or obligation under this Agreement, or
any document or instrument executed in connection herewith, without the prior
written consent of Administrative Secured Party (except assignments to the
limited extent provided in the RPA and TAA as of the Effective Date, PROVIDED
that any such portions of the RPA Interests assigned pursuant to any such
assignments at all times shall be and remain subject to Administrative Secured
Party's rights and interests under this Agreement). This Agreement is intended
for the benefit of CompuCom, Administrative Secured Party, the Beneficial
Secured Parties (and any Person properly claiming through any of them as an
assignee to the limited extent otherwise permitted by this Agreement), and may
not be relied upon by any other Person.
10.17 EXHIBITS. All exhibits referenced herein, and attached hereto,
are incorporated in this Agreement and made a part hereof for all purposes.
10.18. DESCRIPTIVE TITLES. The descriptive titles "Administrative
Secured Party" and "Beneficial Secured Party" are for convenience only and shall
not themselves be construed to limit the rights and powers granted to
Administrative Secured Party or Beneficial Secured Parties under this Agreement.
10.19 CUMULATIVE RIGHTS. All rights and remedies of Administrative
Secured Party under the Administration Documents are cumulative, and are in
addition to rights and remedies available to Administrative Secured Party by
applicable law. Such rights and remedies may be exercised concurrently or
successively, at such times as Administrative Secured Party may determine in its
discretion. CompuCom waives any right to require marshaling. If Administrative
Secured Party, in its individual corporate capacity, and CompuCom are parties to
any prior agreement, either written or oral, relating to the Collateral, the
terms of this Agreement shall supersede the terms of such prior agreements as to
transactions respecting the Collateral on or after the Effective Date, but all
security agreements, financing statements, guaranties, other contracts and
notices for the benefit of Administrative Secured Party, in its individual
corporate capacity, in connection with any such prior agreement shall continue
in full force and effect (subject to the terms of this Agreement) to secure all
obligations under the terms thereof unless Administrative Secured Party
specifically releases its rights thereunder by separate release in writing
executed by Administrative Secured Party.
10.20 SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under any present or future laws effective
during the Contract Term, such provisions shall be fully severable, and this
Agreement shall be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part of this Agreement. In such
case, the
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remaining provisions of the Agreement shall remain in full force and effect and
shall not be effected thereby.
10.21 MULTIPLE COUNTERPARTS. This Agreement may be executed
simultaneously in one or more multiple originals, each of which shall be deemed
an original, but all of which together shall constitute one and the same
Agreement.
10.22 SURVIVAL. All covenants, agreements, representations, and
warranties made by CompuCom herein shall survive the execution, delivery, and
closing of this Agreement, and all documents executed in connection herewith,
and shall not be affected by any investigation made by any party.
THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[Remainder of page intentionally left blank]
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EXECUTED as of the effective date specified in the preamble.
COMPUCOM SYSTEMS, INC.
By: /s/ Robert J. Boutin
--------------------------------
Robert J. Boutin, Senior Vice
President/Finance and
Chief Financial Officer
NATIONSBANK OF TEXAS, N.A.
IN ITS CAPACITY AS ADMINISTRATIVE SECURED PARTY
By: /s/ Sally Glynn
--------------------------------
Sally Glynn, Senior Vice President
NATIONSBANK OF TEXAS, N.A.
By: /s/ Sally Glynn
--------------------------------
Sally Glynn, Senior Vice President
CSI FUNDING, INC.
By: /s/ Robert J. Boutin
--------------------------------
Robert J. Boutin, President
ENTERPRISE FUNDING CORPORATION
By: /s/ John R. Bulger
--------------------------------
Name: John R. Bulger
------------------------------
Title: Vice President
-----------------------------
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