FIFTH AMENDMENT TO
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED RECEIVABLES PURCHASE
AGREEMENT, dated as of September 29, 1997 (this "AMENDMENT"), is among INACOM
FINANCE CORP. ("SELLER"), INACOM CORP. ("INACOM"), CLIPPER RECEIVABLES
CORPORATION ("PURCHASER"), STATE STREET CAPITAL CORPORATION, as administrator
(the "ADMINISTRATOR"), and NORWEST BANK MINNESOTA, N.A., as relationship bank
(the "RELATIONSHIP BANK").
BACKGROUND
1. Seller, Inacom, Purchaser, the Administrator and the Relationship Bank are
parties to that certain Amended and Restated Receivables Purchase Agreement,
dated as of August 21, 1995, as amended by the First Amendment to Amended and
Restated Receivables Purchase Agreement, dated as of May 31, 1996, the Second
Amendment to Amended and Restated Receivables Purchase Agreement, dated as of
November 20, 1996, the Third Amendment to Amended and Restated Receivables
Purchase Agreement, dated as of January 8, 1997 and the Fourth Amendment to
Amended and Restated Receivables Purchase Agreement, dated as of July 18, 1997
(the "RECEIVABLES PURCHASE AGREEMENT").
2. The parties desire to amend the Receivables Purchase Agreement in certain
respects as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS. Capitalized terms used in this Amendment and not
otherwise defined herein shall have the meanings assigned thereto in the
Receivables Purchase Agreement.
SECTION 2. LIABILITIES TO TANGIBLE NET WORTH. SECTION 7.05(b) of the
Receivables Purchase Agreement is hereby amended by inserting immediately after
the words "to exceed" where they appear therein the phrase "(i) 6.5 to 1.0 for
any period ending prior to July 1, 1998 and (ii)" and by inserting the words
"for any period ending thereafter" after the phrase "6.0 to 1.0" where it
appears therein.
SECTION 3. BACK-UP SERVICER EVENT. The definition of "BACK-UP SERVICER EVENT"
that appears in APPENDIX A to the Receivables Purchase Agreement is hereby
amended by deleting the phrase "5.0 to 1.0" where it appears in CLAUSE (ii)
thereof and substituting therefor the phrase "(x) 6.5 to 1.0 for any period
ending prior to July 1, 1998 and (y) 6.0 to 1.0 for any period ending
thereafter".
SECTION 4. REPRESENTATIONS AND WARRANTIES. Each Seller Party hereby jointly
and severally represents and warrants that (i) the representations and
warranties contained in SECTION 6.01 of the Receivables Purchase Agreement are
true and correct on and as of the date hereof, and after giving effect hereto,
as though made on and as of such date, and shall be deemed to have been made on
such date and (ii) no event has occurred and is continuing, or would result from
this Amendment, that constitutes a Liquidation Event or Unmatured Liquidation
Event.
SECTION 5. MISCELLANEOUS. This Amendment will not become effective until the
rating agencies that rate the Commercial Paper Notes confirm the current rating
of such Commercial Paper Notes after giving effect hereto. The Receivables
Purchase Agreement, as amended hereby, remains in full force and effect. Any
reference to the Receivables Purchase Agreement from and after the date hereof
shall be deemed to refer to the Receivables Purchase Agreement as amended
hereby, unless otherwise expressly stated. This Amendment shall be governed by,
and
9
construed in accordance with, the laws of the State of New York. This Amendment
may be executed in any number of counterparts, and by the different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original, and all of which when taken together shall constitute one and
the same agreement. The Seller Parties, jointly and severally, hereby agree to
pay on demand all costs and expenses, including reasonable attorneys' fees,
incurred by the Purchaser, the Relationship Bank or the Administrator in
connection with the preparation or execution of this Amendment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
10
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunder duly authorized, as of the
date first above written.
INACOM FINANCE CORP.
By:/s/ Dave Guenthner
----------------------------
Name Printed:Dave Guenthner
--------------------------
Its: CFO
---------------------------
INACOM CORP.
By:/s/ Dave Guenthner
----------------------------
Name Printed:Dave Guenthner
------------------
Its: CFO
--------------------------
CLIPPER RECEIVABLES CORPORATION
By:/s/ Anne B. Brennan
----------------------------
Name Printed:Anne B. Brennan
------------------
Its: Secretary
--------------------------
STATE STREET CAPITAL CORPORATION,
as Administrator
By:/s/ David Lister
------------------------------
Name Printed:David Lister
--------------------
Its: Vice President
----------------------------
NORWEST BANK MINNESOTA, N.A.,
as Relationship Bank
By:/s/ Jennifer Fallat
------------------------------
Name Printed:Jennifer Fallat
--------------------
Its: Corporate Banking Officer
----------------------------
Fifth Amendment to
Receivables Purchase Agreement
S-1
FOURTH AMENDMENT TO
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT,
dated as of July 18, 1997 (this "AMENDMENT"), is among INACOM FINANCE CORP.
("SELLER"), INACOM CORP. ("INACOM"), CLIPPER RECEIVABLES CORPORATION
("PURCHASER"), STATE STREET CAPITAL CORPORATION, as administrator (the
"ADMINISTRATOR"), and NORWEST BANK MINNESOTA, N.A., as relationship bank (the
"RELATIONSHIP BANK").
BACKGROUND
1. Seller, Inacom, Purchaser, the Administrator and the Relationship Bank are
parties to that certain Amended and Restated Receivables Purchase Agreement,
dated as of August 21, 1995, as amended by the First Amendment to Amended and
Restated Receivables Purchase Agreement, dated as of May 31, 1996, the Second
Amendment to Amended and Restated Receivables Purchase Agreement, dated as of
November 20, 1996, and the Third Amendment to Amended and Restated Receivables
Purchase Agreement, dated as of January 8, 1997 (the "RECEIVABLES PURCHASE
AGREEMENT").
2. The parties desire to amend the Receivables Purchase Agreement in certain
respects as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS. Capitalized terms used in this Amendment and not
otherwise defined herein shall have the meanings assigned thereto in the
Receivables Purchase Agreement.
SECTION 2. DEFAULTED RECEIVABLE. The definition of "Defaulted Receivable"
where it appears in APPENDIX A to the Receivables Purchase Agreement is hereby
amended by (i) inserting the word "or" immediately before CLAUSE (d) thereof,
(ii) deleting the semi-colon and the word "or" that appears immediately after
CLAUSE (d) thereof and substituting therefor a period and (iii) deleting CLAUSE
(e) thereof in its entirety. The definition of "Eligible Receivable" that
appears in APPENDIX A of the Receivables Purchase Agreement is hereby amended by
adding a new phrase at the end of PARAGRAPH d thereof, immediately before the
semi-colon, as follows: "and which is not owed by an Obligor with ten percent
(10%) or more of the aggregate Unpaid Balance of all Receivables owed by such
obligor that are Defaulted Receivables".
SECTION 3. WAIVER. Purchaser, the Administrator and the Relationship Bank
hereby waive the following Liquidation Events: (i) the occurrence of a
Liquidation Event pursuant to SECTION 10.01(h)(i) of the Receivables Purchase
Agreement for the Cut-Off Dates relating to the months of August through
November of 1996 as a result of the inclusion of Defaulted Receivables described
in clause (e) of the original definition thereof in the calculation of such
ratio; (ii) the occurrence of a Liquidation Event pursuant to SECTION
10.01(h)(ii) of the Receivables purchase Agreement for the Cut-Off Dates for the
months of September of 1996 through January of 1997 as a result of the inclusion
of Defaulted Receivables described in clause (e) of the original definition
thereof in the calculation of such ratio; (iii) the occurrence of a Liquidation
Event pursuant to SECTION 10.01(k)(i) of the Receivables Purchase Agreement for
the Cut-Off-Dates for the months of November of 1995, February of 1996, May of
1996 and September through November of 1996 as a result of the inclusion of
Defaulted Receivables described in clause (e) of the original definition thereof
in the calculation of such ratio; (iv) the occurrence of a Liquidation Event
pursuant to SECTION 10.01(k)(ii) of the Receivables Purchase Agreement for the
Cut-Off Dates for the months of November of 1995, March through July of 1996 and
September of 1996 through January of 1997 as a result of the inclusion of
Defaulted Receivables described in clause (e) of the original definition thereof
in the calculation of such ratio; and (v) a Liquidation Events occurring as the
result of
the failure of inacom to provide the notice required pursuant to SECTION 7.03(g)
of the Receivables Purchase Agreement for the period prior to the date hereof.
The foregoing waiver shall only apply with respect to the Liquidation Events
specified in the foregoing sentence, and shall not apply to any other now
existing or hereafter occurring Liquidation Event.
SECTION 4. REPRESENTATIONS AND WARRANTIES. Each Seller Party hereby jointly
and severally represents and warrants that (i) the representations and
warranties contained in SECTION 6.01 of the Receivables Purchase Agreement are
true and correct on and as of the date hereof, and after giving effect hereto,
as though made on and as of such date, and shall be deemed to have been made on
such date and (ii) no event has occurred and is continuing, or would result from
this Amendment, that constitutes a Liquidation Event or Unmatured Liquidation
Event.
SECTION 5. MISCELLANEOUS. This Amendment will not become effective until the
rating agencies that rate the Commercial Paper Notes confirm the current rating
of such Commercial Paper Notes after giving effect hereto. The Receivables
Purchase Agreement, as amended hereby, remains in full force and effect. Any
reference to the Receivables Purchase Agreement from and after the date hereof
shall be deemed to refer to the Receivables Purchase Agreement as amended
hereby, unless otherwise expressly stated. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of New York. This
Amendment may be executed in any number of counterparts, and by the different
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original, and all of which when taken together shall constitute
one and the same agreement. The Seller Parties, jointly and severally, hereby
agree to pay on demand all costs and expenses, including reasonable attorneys'
fees, incurred by the Purchaser, the Relationship Bank or the Administrator in
connection with the preparation or execution of this Amendment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their respective officers thereunder duly authorized, as of the date first
above written.
INACOM FINANCE CORP.
By:/s/ Dave Guenthner
-------------------------------------
Name Printed:Dave Guenthner
---------------------------
Its: Executive Vice President & Chief
-----------------------------------
Financial Officer
INACOM CORP.
By:/s/ Dave Guenthner
------------------------------------
Name Printed:Dave Guenthner
--------------------------
Its: Executive Vice President & Chief
-----------------------------------
Financial Officer
CLIPPER RECEIVABLES CORPORATION
By:/s/ Tiffany Percival
---------------------------------
Name Printed: Tiffany Percival
--------------------------
Its: Secretary
---------------------------------
STATE STREET CAPITAL CORPORATION,
as Administrator
By:/s/ David Lister
-------------------------------------
Name Printed:David Lister
---------------------------
Its: Vice President
----------------------------------
NORWEST BANK MINNESOTA, N.A.,
as Relationship Bank
By:/s/ Jennifer Fallat
-------------------------------------
Name Printed:Jennifer Fallat
---------------------------
Its: Corporate Banking Officer
----------------------------------
Fourth Amendment to
Receivables Purchase Agreement
S-1
THIRD AMENDMENT TO
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT,
dated as of January 8, 1997 (this "AMENDMENT"), is among INACOM FINANCE CORP.
("SELLER"), INACOM CORP. ("INACOM"), CLIPPER RECEIVABLES CORPORATION
("PURCHASER"), STATE STREET BOSTON CAPITAL CORPORATION, as administrator (the
"ADMINISTRATOR"), and NORWEST BANK MINNESOTA, N.A., as relationship bank (the
"RELATIONSHIP BANK").
BACKGROUND
1. Seller, Inacom, Purchaser, the Administrator and the Relationship Bank are
parties to that certain Amended and Restated Receivables Purchase Agreement,
dated as of August 21, 1995, as amended by the First Amendment to Amended and
Restated Receivables Purchase Agreement, dated as of May 31, 1996 and the Second
Amendment to Amended and Restated Receivables Purchase Agreement, dated as of
November 20, 1996 (the "RECEIVABLES PURCHASE AGREEMENT").
2. The parties desire to amend the Receivables Purchase Agreement in certain
respects as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS. Capitalized terms used in this Amendment and not
otherwise defined herein shall have the meanings assigned thereto in the
Receivables Purchase Agreement.
SECTION 2. PURCHASE LIMIT. SECTION 1.01 of the Receivables Purchase Agreement
is hereby amended by deleting the number "$100,000,000" where it appears in
CLAUSE (a)(1) of the PROVISO of the first sentence thereof and substituting
therefor the number "$200,000,000".
SECTION 3. REPRESENTATIONS AND WARRANTIES. Each Seller Party hereby jointly
and severally represents and warrants that (i) the representations and
warranties contained in SECTION 6.01 of the Receivables Purchase Agreement are
true and correct on and as of the date hereof, and after giving effect hereto,
as though made on and as of such date, and shall be deemed to have been made on
such date and (ii) no event has occurred and is continuing, or would result from
this Amendment, that constitutes a Liquidation Event or Unmatured Liquidation
Event.
SECTION 4. EFFECTIVENESS. This Amendment shall become effective as of January
13, 1997.
SECTION 5. MISCELLANEOUS. The Receivables Purchase Agreement, as amended
hereby, remains in full force and effect. Any reference to the Receivables
Purchase Agreement from and after the date hereof shall be deemed to refer to
the Receivables Purchase Agreement as amended hereby, unless otherwise expressly
stated. This Amendment shall be governed by, and construed in accordance with,
the laws of the State of New York. This Amendment may be executed in any number
of counterparts, and by the different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original, and all of
which when taken together shall constitute one and the same agreement. The
Seller Parties, jointly and severally, hereby agree to pay on demand all costs
and expenses, including reasonable attorneys' fees, incurred by the Purchaser,
the Relationship Bank or the Administrator in connection with the preparation or
execution of this Amendment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunder duly authorized, as of the date
first above written.
INACOM FINANCE CORP.
By:/s/ Dave Guenthner
------------------------------------
Name Printed:Dave Guenthner
--------------------------
Its: Executive Vice President & Chief
----------------------------------
Financial Officer
INACOM CORP.
By:/s/ Dave Guenthner
------------------------------------
Name Printed:Dave Guenthner
--------------------------
Its: Executive Vice President & Chief
----------------------------------
Financial Officer
CLIPPER RECEIVABLES CORPORATION
By:/s/ Tiffany Percival
----------------------------------
Name Printed: Tiffany Percival
------------------------
Its: Secretary
---------------------------------
STATE STREET BOSTON CAPITAL CORPORATION,
as Administrator
By:/s/ Paul Schmieder
--------------------------------------
Name Printed: Paul Schmieder
---------------------------
Its: Senior Associate
-----------------------------------
NORWEST BANK MINNESOTA, N.A.,
as Relationship Bank
By:/s/ Jerome W. Fors III
-------------------------------------
Name Printed: Jerome W. Fors III
--------------------------
Its: Vice President
-----------------------------------
Third Amendment to
Receivables Purchase Agreement
S-1
SECOND AMENDMENT TO
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT,
dated as of November 20, 1996 (this "AMENDMENT"), is among INACOM FINANCE CORP.
("SELLER"), INACOM CORP. ("INACOM"), CLIPPER RECEIVABLES CORPORATION
("PURCHASER"), STATE STREET BOSTON CAPITAL CORPORATION, as administrator (the
"ADMINISTRATOR"), and NORWEST BANK MINNESOTA, N.A., as relationship bank (the
"RELATIONSHIP BANK").
BACKGROUND
1. Seller, Inacom, Purchaser, the Administrator and the Relationship Bank are
parties to that certain Amended and Restated Receivables Purchase Agreement,
dated as of August 21, 1995, as amended by the First Amendment to Amended and
Restated Receivables Purchase Agreement, dated as of May 31, 1996 (the
"RECEIVABLES PURCHASE AGREEMENT").
2. The parties desire to amend the Receivables Purchase Agreement in certain
respects as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS. Capitalized terms used in this Amendment and not
otherwise defined herein shall have the meanings assigned thereto in the
Receivables Purchase Agreement.
SECTION 2. RECEIVABLES. The definition of "RECEIVABLE" where it appears in
Appendix A to the Receivables Purchase Agreement is hereby amended in its
entirety as follows:
"RECEIVABLE" means (i) any right to payment from a Person, whether
constituting an account, chattel paper, instrument or general
intangible, arising from the sale of computer or technology
information merchandise or provision of services by an originator, and
includes the right to payment of any interest or finance charges and
other obligations of such Person with respect thereto (PROVIDED that
the term "Receivable" shall not include any such right to payment from
the United States government, or an agency or department thereof, or
any such right to payment arising from the sale of long distance
telephone service, so long as, in each case, the payments related
thereto are not commingled with collections in the Lock-Box Accounts)
and (ii) any Dealer Financed Receivable.
SECTION 3. TERMINATION DATE. The definition of "TERMINATION DATE" that appears
in Appendix A to the Receivables Purchase Agreement is hereby amended by
deleting the date "August 20, 1998" that appears in PARAGRAPH (d) thereof and
substituting therefor the date "August 20, 1999".
SECTION 4. REPRESENTATIONS AND WARRANTIES. Each Seller Party hereby jointly
and severally represents and warrants that (i) the representations and
warranties contained in SECTION 6.01 of the Receivables Purchase Agreement are
true and correct on and as of the date hereof, and after giving effect hereto,
as though made on and as of such date, and shall be deemed to have been made on
such date and (ii) no event has occurred and is continuing, or would result from
this Amendment, that constitutes a Liquidation Event or Unmatured Liquidation
Event.
SECTION 5. MISCELLANEOUS. The Receivables Purchase Agreement, as amended
hereby, remains in full force and effect. Any reference to the Receivables
Purchase Agreement from and after the date hereof shall be deemed to refer to
the Receivables Purchase Agreement as amended hereby, unless otherwise expressly
stated. This Amendment shall be governed by, and construed in accordance with,
the laws of the State of New York. This Amendment may be executed in any number
of counterparts, and by the different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original, and all of
which when taken together shall constitute one and the same agreement. The
Seller Parties, jointly and severally, hereby agree to pay on demand all costs
and expenses, including reasonable attorneys' fees, incurred by the Purchaser,
the Relationship Bank or the Administrator in connection with the preparation or
execution of this Amendment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their respective officers thereunder duly authorized, as of the date first
above written.
INACOM FINANCE CORP.
By:/s/ Pat Fitzgerald
--------------------------------
Name Printed: Patrick Fitzgerald
-----------------------
Its: Director of Financial Services
--------------------------------
Assistant Treasurer
INACOM CORP.
By:/s/ Pat Fitzgerald
-----------------------------------
Name Printed: Patrick Fitzgerald
------------------------
Its: Director of Financial Services
----------------------------------
Assistant Treasurer
CLIPPER RECEIVABLES CORPORATION
By:/s/ Tiffany Percival
-----------------------------------
Name Printed: Tiffany Percival
------------------------
Its: Vice President
---------------------------------
STATE STREET BOSTON CAPITAL CORPORATION,
as Administrator
By:/s/ Paul Schmieder
--------------------------------------
Name Printed: Paul Schmieder
---------------------------
Its: Senior Associate
-------------------------------------
NORWEST BANK MINNESOTA, N.A.,
as Relationship Bank
By:/s/ Alan R. Trimetz
-------------------------------------
Name Printed: Alan R. Trimetz
---------------------------
Its: Vice President
------------------------------------
Second Amendment to
Receivables Purchase Agreement
S-1
FIRST AMENDMENT TO AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
FIRST AMENDMENT TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT, dated as
of May 31, 1996, by and among INACOM CORP., ("Inacom"), INACOM FINANCE CORP.,
("IFC") CLIPPER RECEIVABLES CORPORATION, ("Clipper"), STATE STREET BOSTON
CAPITAL CORPORATION, ("State Street"), and NORWEST BANK MINNESOTA, N.A.,
("Norwest").
RECITALS
WHEREAS, InaCom, IFC, Clipper, State Street and Norwest previously entered into
an Amended and Restated Receivables Purchase Agreement (the "Agreement") dated
as of August 21, 1995.
WHEREAS, InaCom is considering the sale of convertible subordinated debentures
in an amount not to exceed eighty-six million two hundred fifty thousand dollars
($86,250,000) (the "Debenture").
WHEREAS, the indebtedness evidenced by the Debenture will be unsecured.
WHEREAS, the parties desire to amend the Agreement to clarify certain provisions
relating to the Debenture.
NOW THEREFORE, in consideration of the above recitals and the mutual promises
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
AGREEMENT
1. The Agreement is amended in the following respects:
a. The amount of the Debenture shall be treated as stockholders'
equity of InaCom for purposes of defining "Tangible Net Worth."
b. The amount of the Debenture shall not be included within the
definition of "Total Liabilities" of InaCom.
2. Except as expressly amended hereby, the parties hereto agree that the
Agreement and all documents and agreements executed in connection therewith are
ratified and confirmed and shall continue in full force and effect.
3. This Amendment may be signed in any number of counterparts each of which
shall constitute an original and all of which together shall constitute one and
the same document. All capitalized terms used but not defined herein shall have
the meanings ascribed to them in the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered as of day and year first above written.
INACOM CORP. CLIPPER RECEIVABLES CORPORATION
/s/ Leon Kerkman /s/ Tiffany Percival
--------------------- -------------------------
By: Leon Kerkman By: TIFFANY PERCIVAL
Its: Assistant Secretary Its: Vice President
INACOM FINANCE CORP. STATE STREET BOSTON CAPITAL CORPORATION
/s/ Leon Kerkman /s/ Jeffrey R. Noord----
------------------------- ------------------------
By: Leon Kerkman By: Jeffrey R. Noord----
Its: Assistant Secretary Its: Senior Associate
NORWEST BANK MINNESOTA, N.A.
/s/ Brent Clossey
------------------------
By: Vice President
Its: Brent Clossey