COLLATERALIZED GUARANTY
TO: GE COMMERCIAL DISTRIBUTION FINANCE CORPORATION ("CDF")
1. Guaranty and Indemnification. In consideration of financing provided or to be
provided by you to ePlus Technology, inc. ("Dealer"), and for other good and
valuable consideration received, the undersigned (individually and/or
collectively "Guarantor") unconditionally and absolutely guaranty to CDF, from
property held separately, jointly or in community, the immediate payment when
due of all current and future liabilities ("Liabilities") owed by Dealer to CDF
for inventory financed by CDF: (i) which is the subject of a purchase order
issued by Guarantor to Dealer and (ii) for which Dealer has not received payment
in full ("CDF-Financed Inventory").
2. Consents. This Guaranty will not be released, discharged or affected by, and
Guarantor hereby irrevocably consents to, any: (a) change in the manner, place,
interest rate, finance or other charges, or terms of payment or performance in
any current or future agreement between CDF and Dealer, the release, settlement
or compromise of or with any party liable for the payment or performance thereof
or the substitution, release, non-perfection, impairment, sale or other
disposition of any collateral thereunder; (b) change in Dealer's financial
condition; (c) interruption of relations between Dealer and CDF or Guarantor;
(d) claim or action by Dealer against CDF; and/or (e) increases or decreases in
any credit CDF may provide to Dealer.
3. Unconditional Obligations. Guarantor will pay CDF even if CDF has not: (a)
notified Dealer that it is in default of the Liabilities, and/or that CDF
intends to accelerate or has accelerated the payment of all or any part of the
Liabilities, or (b) exercised any of CDF's rights or remedies against Dealer,
any other person or any current or future collateral. If Dealer hereafter
undergoes any change in its ownership, identity or organizational structure,
this Guaranty will extend to all current and future obligations which such new
or changed legal entity owes to CDF.
4. Waivers. Guarantor irrevocably waives notice of: CDF's acceptance of this
Guaranty, presentment, demand, protest, dishonor, nonpayment, nonperformance,
breach or default, CDF's intent to accelerate and CDF's acceleration of any
indebtedness of Dealer, the amount of indebtedness of Dealer outstanding at any
time, the number and amount of advances made by CDF to Dealer in reliance on
this Guaranty, and any claim or action against Dealer. Guarantor further waives
all right of contribution from other guarantors, all other demands and notices
required by law, all rights of offset and counterclaims against CDF or Dealer,
all defenses to the enforceability of this Guaranty (including, without
limitation, fraudulent inducement), and all defenses based on suretyship or
impairment of collateral, and defenses which the Dealer may assert on the
underlying debt, including but not limited to, failure of consideration, breach
of warranty, fraud, payment, statute of frauds, bankruptcy, lack of legal
capacity, statute of limitations, lender liability, deceptive trade practices,
accord and satisfaction and usury. Guarantor also waives all rights to claim,
arbitrate for or sue for any punitive or exemplary damages. In addition,
Guarantor hereby irrevocably subordinates to CDF any and all of Guarantor's
present and future rights and remedies: (a) of subrogation against Dealer or any
other guarantor to any of CDF's rights or remedies against Dealer or any other
guarantor, (b) of contribution, reimbursement, indemnification and restoration
from Dealer or any other guarantor; and (c) to assert any other claim or action
against Dealer or any other guarantor directly or indirectly relating to this
Guaranty, such subordinations to last until CDF has been paid in full for all
Liabilities. All of Guarantor's waivers and subordinations herein will survive
any termination of this Guaranty.
5. Warranties and Representations. Guarantor has made an independent
investigation of the financial condition of Dealer and gives this Guaranty based
on that investigation and not upon any representation made by CDF. Guarantor has
access to current and future Dealer financial information which enables
Guarantor to remain continuously informed of Dealer's financial condition.
Guarantor represents and warrants to CDF that Guarantor has received and will
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receive substantial direct or indirect benefit by making this Guaranty and
incurring the Liabilities. Guarantor also represents and warrants to CDF that
Guarantor is solvent and Guarantor's execution of this Guaranty will not make
Guarantor insolvent. Guarantor further represents and warrants to CDF that: (a)
the present fair salable value of Guarantor's assets is greater than the amount
required to pay Guarantor's liabilities (including contingent, subordinated,
unmatured and unliquidated liabilities); (b) Guarantor is able to pay all of its
liabilities (including contingent, subordinated, unmatured and unliquidated
liabilities) as they become absolute and matured; and (c) Guarantor does not
have unreasonably small capital.
6. Security Interest. To secure payment of all Liabilities and all of
Guarantor's current and future debts to CDF, whether under this Guaranty or any
current or future guaranty or other agreement, Guarantor grants CDF a security
interest in all CDF-Financed inventory, all accounts, chattel paper, rental or
lease payments and other amounts which are due or to become due to Guarantor
arising from the sale or lease of CDF-Financed inventory; all judgments, claims,
insurance policies and payments owed or made to Guarantor thereon; all rights
powers, and remedies (but none of the duties or obligations, if any) of
Guarantor in connection therewith; and all proceeds of any of the foregoing
(collectively "Collateral"). CDF's security interest shall extend to each item
of CDF-Financed Inventory until such time as Dealer has been paid in full for
such item of CDF-Financed Inventory. All of such terms for which meanings are
provided in the Uniform Commercial Code of the applicable state, as the same may
be amended, are used herein with such meanings.
7. Additional Warranties and Representations. Guarantor warrants and represents
to CDF that: (a) Guarantor has good title to all Collateral; (b) CDF's security
interest in the Collateral financed by CDF for Dealer or Guarantor is not now
and will not become subordinate to the security interest or claim of any person;
(c) Guarantor will execute all documents CDF requests to perfect and maintain
CDF's security interest in the Collateral, and will cause all third parties in
possession of Collateral to provide such acknowledgment or control of CDF's
security interest as CDF may require; (d) Guarantor will deliver to CDF
immediately upon each request, and CDF may retain, each Certificate of Title or
Statement of Origin issued for Collateral financed by CDF for Dealer or
Guarantor; (e) Guarantor will at all times be duly organized, existing, in good
standing, qualified and licensed to do business in each jurisdiction in which
the nature of its business or property so requires; (f) Guarantor has the right
and is duly authorized to enter into this Guaranty; (g) Guarantor's execution of
this Guaranty does not, and will not, constitute a breach of any law or
agreement to which Guarantor is now or hereafter becomes bound; (h) there are
and will be no actions or proceedings pending or threatened against Guarantor
which might result in any material adverse change in Guarantor's financial or
business condition; (i) Guarantor will maintain the Collateral in good
condition; (j) Guarantor has duly filed and will duly file all tax returns
required by law, and will pay when due all taxes, levies, assessments and
governmental charges; (k) Guarantor will keep and maintain all of its books and
records pertaining to the Collateral at its chief executive office designated
below; (l) Dealer and Guarantor will keep all Collateral at Dealer's chief
executive office or Guarantor's chief executive office listed below, and such
other locations within the United States of America of which Dealer or Guarantor
has notified CDF in writing or has listed on any current or future Exhibit "A"
attached to any Agreement for Wholesale Financing or security agreement between
Dealer and CDF or this Guaranty, which written notice(s) to CDF and Exhibit A(s)
are incorporated herein by reference; (m) Guarantor will give CDF thirty (30)
days prior written notice of any change in Guarantor's identity, name, form of
business organization, ownership, chief executive office, Collateral locations
or other business locations; (n) Guarantor will notify CDF of the commencement
of material legal proceedings against Dealer or Guarantor; (o) Guarantor will
comply with all applicable laws; and (p) Guarantor has provided CDF with a copy
of Guarantor's Articles of Incorporation, Articles of Organization, Articles of
Formation, Partnership Agreement, or Certificate of Limited Partnership, as
applicable, and will provide any subsequent amendments thereto bearing indicia
of filing from the appropriate governmental authority, or such other documents
verifying Guarantor's true and correct legal name.
8. Negative Covenants. Guarantor will not at any time without CDF's prior
written consent: (a) other than in the ordinary course of its business, sell,
lease or otherwise dispose of or transfer any of its assets; (b) other than in
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the ordinary course of business, rent, lease, demonstrate, consign, license or
use any Collateral financed by CDF for Dealer or Guarantor; (c) merge or
consolidate with another entity unless (i) CDF receives at least ninety (90)
days prior written notice of such merger or consolidation and (ii) Guarantor is
the surviving entity of such merger or consolidation or if Guarantor is not the
surviving entity, the surviving entity executes all documentation reasonably
requested by CDF to assume Guarantor's liabilities to CDF; (d) move any
Collateral financed by CDF out of the United States of America; or (e) store
Collateral financed by CDF with any third party.
9. Insurance. Guarantor will immediately notify CDF of any loss, theft or damage
to any Collateral. Guarantor will keep the Collateral insured for its full
insurable value under an "all risk" property insurance policy with a company
acceptable to CDF, naming CDF as a lender loss-payee and containing standard
lender's loss payable and termination provisions. Guarantor will provide CDF
with written evidence of such property insurance coverage and lender's
loss-payee endorsement.
10. Financial Statements. Guarantor will provide CDF with financial statements
on it each year within ninety (90) days after the end of Dealer's fiscal year
end. Guarantor represents that all financial statements and information which
have been or may hereafter be delivered by Guarantor or Dealer are and will be
correct and prepared in accordance with generally accepted accounting principles
consistently applied, and there has been no material adverse change in the
financial or business condition of Guarantor or Dealer since the submission to
CDF of such financial statements, and Guarantor acknowledges CDF's reliance
thereon.
11. Reviews. Guarantor grants CDF an irrevocable license to enter Guarantor's
business locations during normal business hours with 48 hours prior notice to
Guarantor (unless Guarantor is in default, in which case no prior notice shall
be required) to: (a) account for and inspect all Collateral; and (b) examine and
copy Guarantor's books and records related to the Collateral.
12. Default. Guarantor will be in default under this Guaranty if: (a) Dealer
breaches any terms in any agreement between CDF and Dealer; (b) Dealer fails to
pay any debt to CDF when due and payable under any agreement between CDF and
Dealer; (c) Guarantor breaches any terms contained in this Guaranty or in any
other agreement between Guarantor and CDF; (d) Guarantor fails to pay any debt
to CDF when due and payable under any agreement between CDF and Guarantor; (e)
any representation, statement, report or certificate which Dealer or Guarantor
makes or delivers to CDF is not accurate when made; (f) Dealer or Guarantor
abandons any Collateral; (g) Dealer or Guarantor is or becomes in default in the
payment of any debt owed to any third party, or Dealer or Guarantor is or
becomes in default under any loan agreement; (h) an attachment, sale or seizure
issues or is executed against any assets of Dealer or Guarantor; (i)
intentionally omitted; (j) Dealer or Guarantor ceases existence as a
corporation, as applicable, or ceases or suspends business; (k) Dealer or
Guarantor, as applicable, makes a general assignment for the benefit of
creditors; (l) Dealer or Guarantor, as applicable, becomes insolvent or
voluntarily or involuntarily becomes subject to the Federal Bankruptcy Code, any
state insolvency law or any similar law; (m) any receiver is appointed for any
assets of Dealer or Guarantor, as applicable; (n) this Guaranty or any other
guaranty of Dealer's debts to CDF is terminated; (o) Dealer or Guarantor loses,
or is in default of, any franchise, license or right to deal in any Collateral
which CDF finances; (p) Dealer or Guarantor misrepresents its respective
financial condition or organizational structure; or (q) CDF determines in good
faith that it is insecure with respect to any of the Collateral or the payment
of Dealer's or Guarantor's obligation to CDF.
13. Rights of CDF Upon Default. In the event of a default:
(a) CDF may at any time, without notice or demand to Dealer or Guarantor,
do any one or more of the following: declare all or any part of the
debt Guarantor owes CDF, whether contingent or noncontingent and
whether arising hereunder or under any other agreement between
Guarantor and CDF, immediately due and payable, together with all
costs and expenses of CDF's collection activity, including all
reasonable attorneys' fees; exercise any rights under applicable law;
and/or cease extending any additional credit to Guarantor, if
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applicable, or Dealer, which shall not be construed to limit the
discretionary nature of any credit facility.
(b) Guarantor will segregate and keep the Collateral in trust for CDF, and
will not dispose of or use any Collateral, nor further encumber any
Collateral.
(c) Upon CDF's demand, Guarantor will immediately deliver the Collateral
to CDF at a place specified by CDF, together with all related
documents; or CDF may, without notice or demand to Guarantor, take
immediate possession of the Collateral together with all related
documents.
All of CDF's rights and remedies are cumulative. CDF's failure to
exercise any of its rights or remedies hereunder will not waive any of
CDF's rights or remedies as to any past, current or future default.
14. Sale of Collateral. Guarantor agrees that if CDF conducts a sale of any
Collateral by requesting bids from ten (10) or more dealers or distributors in
that type of Collateral, or pursuant to any internet auction or sale posting on
a third party auction sale site, any sale by CDF of such Collateral in bulk or
in parcels within one hundred twenty (120) days of: (a) CDF's taking possession
and control of such Collateral; or (b) when CDF is otherwise authorized to sell
such Collateral; whichever occurs last, to the bidder submitting the highest
cash bid therefor, is a commercially reasonable sale of such Collateral under
the Uniform Commercial Code. Guarantor agrees that the purchase of any
Collateral by a vendor, as provided in any agreement between CDF and the vendor,
is a commercially reasonable disposition and private sale of such Collateral
under the Uniform Commercial Code, and no request for bids shall be required.
Guarantor further agrees that seven (7) or more days prior written notice will
be commercially reasonable notice of any public or private sale (including any
sale to a Vendor). Guarantor irrevocably waives any requirement that CDF retain
possession and not dispose of any Collateral until after an arbitration hearing,
arbitration award, confirmation, trial or final judgment. If CDF disposes of any
Collateral other than as herein contemplated, the laws of the state governing
this Guaranty will determine the commercial reasonableness of such disposition.
15. Power of Attorney. Guarantor grants CDF an irrevocable power of attorney to:
execute or endorse on Guarantor's behalf any checks, financing statements,
instruments, and Certificates of Title and Statements of Origin pertaining to
the Collateral, to the extent consistent with the terms of this Guaranty; supply
any omitted information and correct errors in any documents between CDF and
Guarantor; initiate and resolve any insurance claim pertaining to the
Collateral; and do anything to protect and preserve the Collateral and CDF's
rights and interest therein.
16. Termination. Guarantor may terminate this Guaranty by a written notice to
CDF, the termination to be effective ninety (90) days after CDF receives and
acknowledges it, but the termination will not terminate Guarantor's obligations
hereunder for Liabilities arising prior to the effective termination date.
17. Binding Effect. Guarantor cannot assign this Guaranty without CDF's prior
written consent. CDF may assign its interest herein without notice to, or
consent from, Guarantor. This Guaranty will protect and bind CDF's and
Guarantor's respective heirs, representatives, successors and assigns.
18. Notices. Except as otherwise stated herein, all notices, arbitration claims,
responses, requests and documents will be sufficiently given or served if mailed
or delivered: (a) to Guarantor at its address below; (b) to CDF at 655 Maryville
Centre Drive, St. Louis, Missouri 63141-5832, Attention: General Counsel; or
such other address as the parties may specify from time to time in writing.
19. Severability; Punitive Damage Waiver. If any provision of this Guaranty or
its application is invalid or unenforceable, the remainder of this Guaranty will
not be impaired or affected and will remain binding and enforceable. Guarantor
and CDF irrevocably waive all rights to claim punitive and/or exemplary damages.
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20. Supplement. If Guarantor and CDF have previously executed other guaranties
or agreements pertaining to all or any part of the Collateral, this Guaranty
will supplement such guaranty or agreement, and this Guaranty will neither be
deemed a novation nor a termination of such guaranty or agreement, nor will
execution of this Guaranty be deemed a satisfaction of any obligation secured by
such guaranty or agreement.
21. Receipt of Guaranty. Guarantor acknowledges that it has received a true and
complete copy of this Guaranty and of all agreements between CDF and Dealer.
Guarantor has read and understood all terms and provisions of this Guaranty.
Notwithstanding anything herein to the contrary, CDF may rely on any facsimile
copy, electronic data transmission, or electronic data storage of: this
Guaranty, any agreement between CDF and Dealer, any Statement of Transaction,
billing statement, financing statement, authorization to pre-file financing
statements, invoice from a vendor, financial statements or other reports, which
will be deemed an original, and the best evidence thereof for all purposes.
22. NO ORAL AGREEMENTS. Oral agreements or commitments to loan money, extend
credit or to forbear from enforcing repayment of a debt including promises to
extend or renew such debt are not enforceable. To protect Guarantor and CDF from
misunderstanding or disappointment, any agreements Guarantor and CDF or Dealer
and CDF reach covering such matters are contained in this Guaranty, an Agreement
for Wholesale Financing, or another agreement between Guarantor and CDF or
between Dealer and CDF, which agreement(s) is (are) the complete and exclusive
statement of the agreement between Guarantor and CDF and between Dealer and CDF,
except as specifically provided herein, in such other agreement(s) or as
Guarantor and CDF or Dealer and CDF may later agree in writing.
23. Miscellaneous. This Guaranty will survive any federal and/or state
bankruptcy or insolvency action involving Dealer. If CDF is required in any
action involving Dealer to return or rescind any payment made to or value
received by CDF from or for the account of Dealer, this Guaranty will remain in
full force and effect and will be automatically reinstated without any further
action by CDF and notwithstanding any termination of this Guaranty or CDF's
release of Guarantor. Any delay or failure by CDF, or CDF's successors or
assigns, in exercising any of CDF's rights or remedies hereunder will not waive
any such rights or remedies. If Guarantor fails to pay any taxes, fees or other
obligations which may impair CDF's interest in the Collateral, or fails to keep
the Collateral insured, CDF may, but shall not be required to, pay such amounts.
Such paid amounts will be: (a) an additional debt which Guarantor owes to CDF,
which shall be subject to finance charges at the highest rate allowed by law;
and (b) due and payable immediately in full. Guarantor will pay all of CDF's
reasonable attorneys' fees and expenses which CDF incurs in enforcing CDF's
rights hereunder. The Section titles used herein are for convenience only, and
do not define or limit the contents of any Section.
24. BINDING ARBITRATION.
24.1 Arbitrable Claims. Except as otherwise specified below, all actions,
disputes, claims and controversies under common law, statutory law or in equity
of any type or nature whatsoever, whether arising before or after the date of
this Guaranty, and whether directly or indirectly relating to: (a) this Guaranty
and/or any amendments and addenda hereto, or the breach, invalidity or
termination hereof; (b) any previous or subsequent agreement between CDF and
Dealer or CDF and Guarantor; (c) any act committed by CDF or by any parent
company, subsidiary or affiliated company of CDF (the "CDF Companies"), or by
any employee, agent, officer or director of a CDF Company, whether or not
arising within the scope and course of employment or other contractual
representation of the CDF Companies provided that such act arises under a
relationship, transaction or dealing between CDF and Dealer or CDF and
Guarantor; and/or (d) any other relationship, transaction or dealing between CDF
and Dealer or CDF and Guarantor (collectively the "Disputes"), will be subject
to and resolved by binding arbitration. Notwithstanding the foregoing, the
parties agree that either party may pursue claims against the other that do not
exceed Fifteen Thousand Dollars ($15,000) in the aggregate in a court of
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competent jurisdiction. Service of arbitration claims shall be acceptable if
made by U.S. mail or overnight delivery to the address for the party described
herein.
24.2 Administrative Body. All arbitration hereunder will be conducted in
accordance with the Commercial Arbitration Rules of either: (a) The American
Arbitration Association ("AAA") or (b) United States Arbitration & Mediation
("USA&M"). The party first filing an arbitration claim shall designate which
arbitration forum and rules are to be applied for all disputes between the
parties. The arbitration rules are found at www.adr.org for AAA, and at
www.usam-midwest.com for USA&M. AAA claims may be filed in any AAA office.
Claims filed with USA&M shall be filed in their Midwest office located at 720
Olive Street, Suite 2020, St. Louis, Missouri 63101. All arbitrator(s) selected
will be attorneys with at least five (5) years secured transactions experience.
A panel of three arbitrators shall hear all claims exceeding One Million Dollars
($1,000,000), exclusive of interest, costs and attorneys' fees. The
arbitrator(s) will decide if any inconsistency exists between the rules of the
applicable arbitral forum and the arbitration provisions contained herein. If
such inconsistency exists, the arbitration provisions contained herein will
control and supersede such rules. The arbitrator shall follow the terms of this
agreement and the applicable law, including without limitation, the
attorney-client privilege and the attorney workproduct doctrine.
24.3 Hearings. Each party hereby consents to a documentary hearing for all
arbitration claims, by submitting the dispute to the arbitrator(s) by written
briefs and affidavits, along with relevant documents. However, arbitration
claims will be submitted by way of an oral hearing, if any party requests an
oral hearing within forty (40) days after service of the claim, and that party
remits the appropriate deposit for AAA's fees and arbitrator compensation within
ten (10) days of making the request. The site of all oral arbitration hearings
will be in the Division of the Federal Judicial District in which AAA or USA&M
maintains a regional office that is closest to Dealer.
24.4 Discovery. Discovery permitted in any arbitration proceeding commenced
hereunder is limited as follows. No later than forty (40) days after the filing
and service of a claim for arbitration, the parties in contested cases will
exchange detailed statements setting forth the facts supporting the claim(s) and
all defenses to be raised during the arbitration, and a list of all exhibits and
witnesses. No later than twenty-one (21) days prior to the oral arbitration
hearing, the parties will exchange a final list of all exhibits and all
witnesses, including any designation of any expert witness(es) together with a
summary of their testimony; a copy of all documents and a detailed description
of any property to be introduced at the hearing. Under no circumstances will the
use of interrogatories, requests for admission, requests for the production of
documents or the taking of depositions be permitted. However, in the event of
the designation of any expert witness(es), the following will occur: (a) all
information and documents relied upon by the expert witness(es) will be
delivered to the opposing party; (b) the opposing party will be permitted to
depose the expert witness(es); (c) the opposing party will be permitted to
designate rebuttal expert witness(es); and (d) the arbitration hearing will be
continued to the earliest possible date that enables the foregoing limited
discovery to be accomplished.
24.5 Exemplary or Punitive Damages. The Arbitrator(s) will not have the
authority to award exemplary or punitive damages.
24.6 Confidentiality of Awards. All arbitration proceedings, including
testimony or evidence at hearings, will be kept confidential, although any award
or order rendered by the arbitrator(s) pursuant to the terms of this Guaranty
may be confirmed as a judgment or order in any state or federal court of
competent jurisdiction within the federal judicial district which includes the
residence of the party against whom such award or order was entered. This
Guaranty concerns transactions involving commerce among the several states. The
Federal Arbitration Act, Title 9 U.S.C. Sections 1 et seq., as amended ("FAA")
will govern all arbitration(s) and confirmation proceedings hereunder.
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24.7 Prejudgment and Provisional Remedies. Nothing herein will be construed
to prevent CDF's or Guarantor's use of bankruptcy, receivership, injunction,
repossession, replevin, claim and delivery, sequestration, seizure, attachment,
foreclosure, and/or any other prejudgment or provisional action or remedy
relating to any Collateral for any current or future debt owed by either party
to the other. Any such action or remedy will not waive CDF's or Guarantor's
right to compel arbitration of any Dispute.
24.8 Attorneys' Fees. If either Guarantor or CDF brings any other action
for judicial relief with respect to any Dispute (other than those set forth in
Sections 24.1 or 24.7), the party bringing such action will be liable for and
immediately pay all of the other party's costs and expenses (including
attorneys' fees) incurred to stay or dismiss such action and remove or refer
such Dispute to arbitration. If either Guarantor or CDF brings or appeals an
action to vacate or modify an arbitration award and such party does not prevail,
such party will pay all costs and expenses, including attorneys' fees, incurred
by the other party in defending such action. Additionally, if Guarantor sues CDF
or institutes any arbitration claim or counterclaim against CDF in which CDF is
the prevailing party, Guarantor will pay all costs and expenses (including
attorneys' fees) incurred by CDF in the course of defending such action or
proceeding.
24.9 Limitations. Any arbitration proceeding must be instituted: (a) with
respect to any Dispute for the collection of any debt owed by either party to
the other, within two (2) years after the date the last payment by or on behalf
of the payor was received and applied in respect of such debt by the payee; and
(b) with respect to any other Dispute, within two (2) years after the date the
incident giving rise thereto occurred, whether or not any damage was sustained
or capable of ascertainment or either party knew of such incident. Failure to
institute an arbitration proceeding within such period will constitute an
absolute bar and waiver to the institution of any proceeding, whether
arbitration or a court proceeding, with respect to such Dispute.
24.10 Survival After Termination. The agreement to arbitrate will survive
the termination of this Guaranty.
25. INVALIDITY/UNENFORCEABILITY OF BINDING ARBITRATION. IF THIS GUARANTY IS
FOUND TO BE NOT SUBJECT TO ARBITRATION, ANY LEGAL PROCEEDING WITH RESPECT TO ANY
DISPUTE WILL BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE WITHOUT A
JURY. CDF AND GUARANTOR WAIVE ANY RIGHT TO A JURY TRIAL IN ANY SUCH PROCEEDING.
26. Governing Law. This Guaranty and all agreements between Dealer and CDF have
been substantially negotiated, and will be substantially performed, in the state
of Missouri. Accordingly, all Disputes will be governed by, and construed in
accordance with, the laws of such state, except to the extent inconsistent with
the provisions of the FAA which will govern all arbitration proceedings
hereunder.
THIS GUARANTY CONTAINS BINDING ARBITRATION, JURY WAIVER AND PUNITIVE DAMAGES
WAIVER PROVISIONS.
Date: March 30, 2004 ePlus Group, inc.
Address of Guarantor(s):
By: /s/ STEVE MENCARINI, CFO
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400 Herndon Parkway Steve Mencarini
Herndon, VA 20170 Chief Financial Officer
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SECRETARY'S CERTIFICATE
I hereby certify that I am the Secretary or Assistant Secretary of ePlus
Group, inc. ("Guarantor") and that execution of the above Collateralized
Guaranty was ratified, approved and confirmed by the Shareholders at a meeting,
if necessary, and pursuant to a resolution of the Board of Directors of
Guarantor at a meeting of the Board of Directors duly called, and which is
currently in effect, which resolution was duly presented, seconded and adopted
and reads as follows:
"BE IT RESOLVED that any officer of this corporation is hereby authorized
to execute a guaranty of the obligations of ePlus Technology, inc. ("Dealer") to
GE Commercial Distribution Finance Corporation ("CDF") on behalf of the
corporation, which instrument may contain such terms as the above named persons
may see fit including, but not limited to a waiver of notice of the acceptance
of the guaranty; presentment; demand; protest; notices of nonpayment,
nonperformance, dishonor, the amount of indebtedness of Dealer outstanding at
any time, any legal proceedings against Dealer, and any other demands and
notices required by law; and any right of contribution from other guarantors. As
security for such guaranty to CDF, any officer of this corporation is hereby
authorized to pledge, assign, mortgage, grant security interests, and otherwise
transfer to CDF as collateral security for any obligations of this corporation
to CDF, whenever and however arising, any assets of this corporation, whether
now owned or hereafter acquired."
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate
seal on this 30th day of March, 2004.
(SEAL)
Secretary: /s/ ERICA STOECKER
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Erica Stoecker