Exhibit 10.2
IBM Credit Corporation
AGREEMENT FOR WHOLESALE FINANCING
(SECURITY AGREEMENT)
This Agreement for Wholesale Financing - Security Agreement (as amended,
supplemented or otherwise modified from time to time, this "Agreement") dated
November 27, 2000 is by and between IBM CREDIT CORPORATION, a Delaware
corporation, with a place of business at 1500 RiverEdge Parkway, Atlanta, GA
30358 ("IBM Credit"), and INFORMATION TECHNOLOGY SERVICES, INC., a New York
corporation, ("Customer"). This Agreement replaces that Inventory and Working
Capital Financing Agreement between IBM Credit Customer (as amended, modified
or supplemented from time to time) dated September 24, 1996.
In the course of Customer's business, Customer acquires products and
wants IBM Credit to finance Customer's purchase of such products under the
following terms and conditions:
1. IBM Credit may in its sole discretion from time to time decide the amount
of credit IBM Credit extends to Customer, notwithstanding any prior course of
conduct between IBM Credit and Customer. IBM Credit may combine all of its
advances to make one debt owed by Customer.
2. IBM Credit may in its sole discretion decide the amount of funds, if any,
IBM Credit will advance on any products Customer may seek to acquire. Customer
agrees that any decision to finance products will not be binding on IBM Credit
until such time as the funds are actually advanced by IBM Credit.
3. In the course of Customer's operations, Customer intends to purchase from
persons approved in writing by IBM Credit for the purposes of this Agreement
(the "Authorized Suppliers") computer hardware and software products
manufactured or distributed by or bearing any trademark or trade name of such
Authorized Suppliers (the "Authorized Inventory"). When IBM Credit advances
funds, IBM Credit may send Customer a Statement of Transaction or other
statement. If IBM Credit does, Customer will have acknowledged the debt to be
an account stated and Customer will have agreed to the terms set forth on such
statement unless Customer notifies IBM Credit in writing of any question or
objection within seven (7) days after such statement is mailed to Customer.
4. To secure payment of all Customer's current and future obligations to IBM
Credit whether under this Agreement, any guaranty that Customer now or
hereafter executes, or any other agreement between Customer and IBM Credit,
whether direct or contingent, Customer grants IBM Credit a security interest
in all of Customer's inventory, equipment, fixtures, account, contract rights,
chattel paper, instruments, reserves, documents of title, deposit accounts and
general intangibles, whether now owned or hereafter acquired, and all
attachments, accessories, accessions, substitutions and/or replacements
thereto and all proceeds thereof. All of the above assets are defined pursuant
to the provisions of Article 9 of the Uniform Commercial Code and are
hereinafter collectively referred to as the "Collateral." This security
interest is also granted to secure Customer's obligations to all IBM Credit's
affiliates. Customer will hold all of the Collateral financed by IBM Credit,
and the proceeds thereof, in trust for IBM Credit and Customer will
immediately account for and remit directly to IBM Credit all such proceeds
when payment is required under the terms set forth in the billing statement or
as otherwise provided in this Agreement. IBM Credit may directly collect any
amount owed Customer from Authorized Suppliers with respect to the Collateral
and credit Customer with all such sums received by IBM Credit from Authorized
Suppliers. IBM Credit's title, lien or security interest will not be
impaired by any payments Customer makes to the seller or anyone else or by
Customer's failure or refusal to account to IBM Credit for proceeds.
5. Customer's principal place of business is located at:
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20 Precision Drive, Shirley, NY 11967
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(Number and Street) (City, County, State, Zip Code)
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and Customer represents that its business is conducted as a SOLE
----
PROPRIETORSHIP. PARTNERSHIP, XXX CORPORATION. X LIMITED LIABILITY
---- ----
COMPANY
(check applicable term). Customer will notify IBM Credit, in writing, prior to
any change in Customer's identity, name, form of ownership, management, and of
any changes in Customer's principal place of business, or any additions or
discontinuances of other business locations. The Collateral will be kept at
Customer's principal place of business. Customer will notify IBM Credit, in
writing, thirty (30) days prior to moving any of the Collateral to any other
address. Customer and Customer's predecessors have done business during the
last six (6) months only under the following names:
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Information Technology Services, Inc.
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This paragraph is not in any manner intended to limit the extent of IBM
Credit's security interest in the Collateral.
6. Customer represents and covenants that the Collateral is and will remain
free from all claims and liens superior to IBM Credit's unless otherwise
agreed to by IBM Credit in writing, and that Customer will defend the
Collateral against all other claims and demands. Customer will not sell, rent,
lease, lend, demonstrate, pledge transfer or secrete any of the Collateral or
use any of the Collateral for any purpose other than exhibition and sale to
buyers in the ordinary course of business, without IBM Credit's prior written
consent. Customer will execute all documents IBM Credit may request to confirm
or perfect IBM Credit's security interest in the Collateral. Customer warrants
and represents that Customer is not in default in the payment of any
principal, interest or other charges relating to any indebtedness owed to any
third party, and no event has occurred, as of the effective date of this
Agreement or as of the date of any request by Customer to IBM Credit for
financing in the future, under the terms of any agreement, document,
promissary note or other instrument, which with or without the passage of time
and/or the giving of notice constitutes or would constitute an event of
default thereunder. Customer will promptly provide its year-end financial
statement, in form and detail satisfactory to IBM Credit, to IBM Credit within
ninety (90) days after Customer's fiscal year ends and, if requested by IBM
Credit, Customer will also promptly provide Customer's financial Statement to
IBM Credit after each fiscal quarter within forty five (45) days. Customer
represents and covenants that each financial statement that Customer submits
to IBM Credit will be prepared according to generally accepted accounting
principles in effect in the United States from time to time, and is and will
be correct and will accurately represent Customer's financial condition.
Customer further acknowledges IBM Credit's reliance on the truthfulness and
accuracy of each financial statement that Customer submits to IBM Credit in
IBM Credit's extension of various financial accommodations to Customer.
7. Customer will pay all taxes, license fees, assessments and charges on the
Collateral when due. Customer will immediately notify IBM Credit of any loss,
theft, or destruction of or damage to any of the Collateral. Customer will be
responsible for any loss, theft, or destruction or damage of Collateral.
Customer will keep the Collateral insured for its full insurable value against
loss or damage under an "all risk" insurance policy. Customer will obtain
insurance under such terms and in such amounts acceptable to IBM Credit, from
time to time, with companies acceptable to IBM Credit, with a lender loss-
payee or mortgagee clause payable to IBM Credit to the extent of any loss to
the Collateral and containing a waiver of all defenses against Customer that
is acceptable to IBM Credit. Customer agrees to provide IBM Credit with
written evidence of the required insurance coverage and lender loss-payee or
mortgagee clause. Customer assigns to IBM Credit all amounts owed to Customer
under any insurance policy, and Customer directs any insurance company to
make payment directly to IBM Credit to be applied to the unpaid obligations
owed IBM Credit. Customer further grants IBM Credit an irrevocable power of
attorney to endorse any checks or drafts and sign and file any of the papers,
forms and documents required to initiate and settle any insurance claims with
respect to the Collateral. If Customer fails to pay any of the above-referenced
costs, charges, or insurance premiums, or if Customer fails to insure the
Collateral, IBM Credit may, but will not be obligated to, pay such costs,
charges and insurance premiums, and the amounts paid will be considered an
additional obligation owed by Customer to IBM Credit.
8. IBM Credit has the right to enter upon Customer's premises from time to
time, as IBM Credit in its sole discretion may determine for IBM Credit's sole
benefit, and all without any advance notice to Customer, to: examine the
Collateral; appraise it as security; verify its condition and non-use; verify
that
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all Collateral have been properly accounted for; verify that Customer has
complied with all the terms and provisions of this Agreement; and assess,
examine, and make copies of Customer's books and record. Any collection by
IBM Credit of any amounts Customer owes at or during IBM Credit's examination
of the Collateral does not relieve Customer of its continuing obligation to
pay Customer's obligations owed to IBM Credit in accordance with such terms.
9. Customer agrees to immediately pay IBM Credit the full amount of the
principal balance owed IBM Credit on each item of Approved Inventory financed
by IBM Credit at the time such Approved Inventory is sold, lost, stolen,
destroyed, or damaged, whichever occurs first, unless IBM Credit has agreed in
writing to provide financing to Customer on other terms. Customer also agrees
to provide IBM Credit, upon IBM Credit's request, an inventory report which
describes all the Approved Inventory in Customer's possession (excluding any
Approved Inventory financed by IBM Credit under the Demonstration and Training
Equipment Financing Option). Regardless of the repayment terms set forth in
any billing statement, if IBM Credit determines, after conducting an
inspection of all of Customer's inventory, that the current outstanding
obligations owed by Customer to IBM Credit exceeds the aggregate wholesale
invoice price, net of all applicable price reduction credits, of the Approved
Inventory in Customer's possession that is new and in manufacturer sealed
boxes and in which IBM Credit has a perfected first priority security
interest, Customer agrees to immediately pay to IBM Credit an amount equal to
the difference between such outstanding obligations and the aggregate
wholesale invoice price, net of all applicable price reduction credits, of
such Approved Inventory. Customer will make all payments to IBM Credit
according to the remit instructions in the billing statement. Any checks or
other instruments delivered to IBM Credit to be applied against Customer's
outstanding obligations will constitute conditional payment until the funds
represented by such instruments are actually received by IBM Credit. IBM
Credit may apply payments to reduce finance charges first and then principal,
irrespective of Customer's instructions. Further, IBM Credit may apply
principal payments to the oldest (earliest) invoice for the Approved
Inventory financed by IBM Credit, or to such Approved Inventory which is
sold, lost, stolen, destroyed, damaged, or otherwise disposed of. If Customer
signs any instrument for any outstanding obligations, it will be evidence of
Customer's obligation to pay and will not be payment. Any discount, rebate,
bonus, or credit for Approved Inventory granted to Customer by any Authorized
Supplier will not, in any way, reduce the obligations Customer owes IBM
Credit, until IBM Credit has received payment in good funds.
10. Customer will pay IBM Credit finance charges on the total amount of
credit extended to Customer in the amount agreed to between Customer and IBM
Credit from time to time. The period of any financing will begin on the
invoice date of the Approved Inventory whether or not IBM Credit advances
payment on such date. This period will be included in the calculation of the
annual percentage rate of the finance charges. Such finance charges may be
applied by IBM Credit to cover any amounts expended for IBM Credit's:
appraisal and examination of the Collateral; maintenance of facilities for
payment; assistance in support of Customer's retail sales; IBM Credit's
commitments to Authorized Suppliers to finance shipments of Approved Inventory
to Customer; recording and filing fees; expenses incurred in obtaining
additional collateral or security; and any costs and expenses incurred by IBM
Credit arising out of the financing IBM Credit extends to Customer. Customer
also agrees to pay IBM Credit additional charges which include: late payment
fees at a per annum rate equal to the Prime Rate plus 6.5%; flat charges:
charges for receiving NSF checks from Customer; renewal charges; and any other
charges agreed to by Customer and IBM Credit from time to time. For purposes
of this Agreement, "Prime Rate" will mean the average of the rates of interest
announced by banks which IBM Credit uses in its normal course of business of
determining prime rate. Unless Customer hereafter otherwise agrees in writing,
the finance charges and additional charges agreed upon will be IBM Credit's
applicable finance charges and additional charges for the class of Approved
Inventory involved prevailing from time to time at IBM Credit's principal
place of business, but in no event greater than the highest rate from time to
time permitted by applicable law. If it is determined that amounts received
from Customer were in excess of such highest rate, then the amount
representing such excess will be considered reductions to the outstanding
principal of IBM Credit's advances to Customer. IBM Credit will send Customer,
at monthly or other intervals, a statement of all charges due on Customer's
account with IBM Credit. Customer will have acknowledged the charges due, as
indicated on the statement, to be an account stated, unless Customer objects
in writing to IBM Credit within seven (7) days after such statement is mailed
to
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Customer. This statement may be adjusted by IBM Credit at any time to conform
to applicable law and this Agreement. IBM Credit shall calculate any free
financing period utilizing a methodology that is consistent with the
methodologies used for similarly situated customers of IBM Credit. The
Customer understands that IBM Credit may not offer, may change or may cease
to offer a free financing period for the Customer's purchases of Approved
Inventory. If any Authorized Supplier fails to provide payment of a finance
charge for Customer, as agreed, Customer will be responsible for and pay to
IBM Credit all finance charges billed to Customer's account.
11. Any of the following events will constitute an event of default by
Customer under this Agreement: Customer breaches any of the terms, warranties
or representations contained in this Agreement or in any other agreements
between Customer and IBM Credit or between Customer and any of IBM Credit's
affiliates; any guarantor of Customer's obligations to IBM Credit under this
Agreement or any other agreements, breaches of any terms, warranties or
representations contained in such guaranty or other agreements between such
guarantor and IBM Credit: any representation, statement, report or certificate
made or delivered by Customer or any of Customer's owners, representatives,
employees or agents or by any guarantor to IBM Credit is not true and correct;
Customer fails to pay any of the liabilities or obligations owed to IBM Credit
or any of IBM Credit's affiliates when due and payable under this Agreement or
under any other agreements between Customer and IBM Credit or between Customer
and any of IBM Credit's affiliates; IBM Credit determines that IBM Credit is
insecure with respect to any of the Collateral or the payment of Customer's
obligations owed to IBM Credit; Customer abandons the Collateral or any part
thereof; Customer or any guarantor becomes in default in the payment of any
indebtedness owed to any third party; a judgment issues on any money demand
against Customer or any guarantor; an attachment, sale or seizure is issued
against Customer or any of the Collateral; any part of the Collateral is
seized or taken in execution; the death of the undersigned if the business is
operated as a sole proprietorship, or the death of a partner if the business
is operated as a partnership, or the death of any guarantor; Customer ceases
or suspends Customer's business; Customer or any guarantor makes a general
assignment for the benefit of creditors; Customer or any guarantor becomes
insolvent or voluntarily or involuntarily becomes subject to the Federal
Bankruptcy Code, state insolvency laws or any act for the benefit of creditors;
any receiver is appointed for any of Customer's or any guarantor's assets,
or any guaranty pertaining to Customer's obligations to IBM Credit is
terminated for any reason whatsoever; any guarantor disclaims any obligations
under any guaranty; Customer loses any franchise, permission license or right
to sell or deal in any Approved Inventory; Customer or any guarantor
misrepresents its respective financial condition or organizational structure;
or IBM Credit determines, in its sole discretion, that the Collateral, any
other collateral given to IBM Credit to secure Customer's obligations to IBM
Credit, any guarantor's guaranty, or Customer's or any guarantor's net worth
has decreased in value, and Customer has been unable, within the time period
prescribed by IBM Credit, to either provide IBM Credit with additional
collateral in a form and substance satisfactory to IBM Credit or reduce
Customer's total obligations by an amount sufficient to satisfy IBM Credit.
Following an event of a default:
(a) IBM Credit may, at any time at IBM Credit's election, without
notice or demand to Customer do any one or more of the following: declare all
or part of the obligations Customer owes IBM Credit immediately due and
payable, together will all court costs and all costs and expenses of IBM
Credit's repossession and collection activity, including, but not limited to,
all attorney's fees: exercise any or all rights of a secured party under
applicable law; cease making any further financial accommodations or extending
any additional credit to Customer, and/or exercise any or all rights available
at law or in equity. All of IBM Credit's rights and remedies are cumulative.
(b) Customer will segregate, hold and keep the Collateral in trust, in
good order and repair, only for IBM Credit's benefit, and Customer will not
exhibit, transfer, sell, further encumber, otherwise dispose of or use for any
other purpose whatsoever any of the Collateral.
(c) Upon IBM Credit's oral or written demand, Customer will
immediately deliver the Collateral to IBM Credit, in good order and repair, at
a place specified by IBM Credit, together with all related documents: or IBM
Credit may, in its sole discretion and without notice or demand to Customer,
take immediate possession of the Collateral, together with all related
documents.
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(d) Customer waives and releases: any claims and causes of action
which Customer may now or ever have against IBM Credit as a direct or indirect
result of any possession, repossession, collection or sale by IBM Credit of
any of the Collateral and the benefit of all valuation, appraisal and
exemption laws. If IBM Credit seeks to take possession of any of the
Collateral by court process, Customer irrevocably waives any notice, bonds,
surety and security relating thereto required by any statute, court rule or
otherwise.
(e) Customer appoints IBM Credit or any person IBM Credit may delegate
as Customer's duly authorized Attorney-In-Fact to do, in IBM Credit's sole
discretion, any of the following in the event of a default: endorse Customer's
name on any notes, checks, drafts or other forms of exchange constituting
Collateral, or received as payment on any Collateral for deposit in IBM
Credit's account; sell, assign, transfer, negotiate, demand, collect, receive,
settle, extend or renew any amounts due on any of the Collateral; and exercise
any rights Customer has in the Collateral.
If Customer brings any action or asserts any claim against IBM Credit which
arises out of this Agreement, any other agreement or any of the business
dealings between IBM Credit and Customer, in which Customer does not prevail,
Customer agrees to pay IBM Credit all costs and expenses of IBM Credit's
defense of such action or claim including, but not limited to, all attorney's
fees. If IBM Credit fails to exercise any of IBM Credit's rights or remedies
under this Agreement, such failure will in no way or manner waive any of IBM
Credit's rights or remedies as to any past, current or future default.
12. Customer agrees that if IBM Credit conducts private sale of any
Collateral by soliciting bids from ten (10) or more other dealers or
distributors in the type of Collateral repossessed by or returned to IBM
Credit hereunder, any sale by IBM Credit of such property will be deemed to be
a commercially reasonable disposition under the Uniform Commercial Code. IBM
Credit agrees that commercially reasonable notice of any public or private
sale will be deemed given to Customer if IBM Credit sends Customer a notice of
sale at least seven (7) days prior to the date of any public sale or the
time after which a private sale will be made. If IBM Credit disposes of any
such Collateral other than as herein contemplated, the commercial
reasonableness of such sale will be determined in accordance with the
provisions of the Uniform Commercial Code as adopted by the state whose laws
govern this Agreement.
Customer agrees that IBM Credit does not warrant the Approved Inventory.
Customer will pay IBM Credit in full even if the Approved Inventory is
defective or fails to conform to any warranties extended by any third party.
Customer's obligations to IBM Credit will not be affected by any dispute
Customer may have with any third party. Customer will not assert against IBM
Credit any claim or defense against any claim or defense Customer may have
against any third party. Customer will indemnify and hold IBM Credit harmless
against any claims or defenses asserted by any buyer of the Approved Inventory
by reason of: the condition of any Approved Inventory; any representations
made about the Approved Inventory; or for any and all other reasons
whatsoever.
13. Customer grants to IBM Credit a power of attorney authorizing any of IBM
Credit's representatives to: execute or endorse on Customer's behalf any
documents, financing statements and instruments evidencing Customer's
obligations to IBM Credit; supply any omitted information and correct errors
in any documents or other instruments executed by or for the Customer; do any
and every act which Customer is obligated to perform under this Agreement; and
do any other things necessary to preserve and protect Collateral and IBM
Credit's security interest in the Collateral. Customer further authorizes IBM
Credit to provide to any third party any credit, financial or other
information about Customer that is in IBM Credit's possession.
14. Each party may electronically transmit to or receive from the other party
certain documents specified in the E-Business Schedule A attached hereto ("E-
Documents") via the Internet or electronic data interchange ("EDI"). Any
transmission of data which is not an E-Document shall have no force or effect
between the parties. EDI transmissions may be transmitted directly or through
any third party service provider ("Provider") with which either party may
contract. Each party will be liable for the acts or omissions of its Provider
while handling E-Documents for such party, provided, that if both parties use
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the same Provider, the originating party will be liable for the acts or
omissions of such Provider as to such E-Document. Some information to be made
available to Customer will be specific to the Customer and will require
Customer to register with IBM Credit before access is provided. After IBM
Credit has approved the registration submitted by Customer, IBM Credit will
provide an ID and password(s) to an individual designated by Customer
("Customer Recipient"). Customer accepts responsibility for the designated
individual's distribution of the ID and password(s) within its organization
and Customer will take reasonable measures to ensure that passwords are not
shared or disclosed to unauthorized individuals. Customer will conduct an
annual review of all IDs and passwords to ensure that they are accurate and
properly authorized. IBM CREDIT MAY CHANGE OR DISCONTINUE USE OF AN ID OR
PASSWORD AT ITS DISCRETION AT ANY TIME. E-Documents will not be deemed to
have been properly received, and no E-Document will give rise to any
obligation, until accessible to the receiving party at such party's receipt
computer at the address specified therein. Upon proper receipt of an E-
Document, the receiving party will promptly transmit a functional
acknowledgment in return. A functional acknowledgment will constitute
conclusive evidence that an E-Document has been properly received. If any
transmitted E-Document is received in an unintelligible or garbled form, the
receiving party will promptly notify the originating part in a reasonable
manner. In the absence of such a notice, the originating party's records of
the contents of the E-Document will control.
Each party will use those security procedures which are reasonable sufficient
to ensure that all transmissions of E-Documents are authorized and to protect
its business records and data from improper access. Any E-Document received
pursuant to this paragraph 14 will have the same effect as if the contents of
the E-Document had been sent in paper rather than electronic form. The conduct
of the parties pursuant to this paragraph 14 will, for all legal purposes,
evidence a course of dealing and a course of performance accepted by the
parties. The parties agree not to contest the validity or enforceability of E-
Documents under the provisions of any applicable law relating to whether
certain agreements are to be in writing or signed by the party to be bound
thereby. The parties agree as to any E-Document accompanied by Customer's ID,
that IBM Credit can reasonably rely on the fact that such E-Document is
properly authorized by Customer. E-Documents, if introduced as evidence on
paper in any judicial, arbitration, mediation or administrative proceedings,
will be admissible as between the parties to the same extent and under the
same conditions as other business records originated and maintained in
documentary form. Neither party will contest the admissibility of copies of E-
Documents under either the business records exception to the hearsay rule or
the best evidence rule on the basis that the E-Documents were not originated
or maintained in documentary form.
Neither party will be liable to the other for any special, incidental,
exemplary or consequential damages arising from or as a result of any delay,
omission or error in the electronic transmission or receipt of any E-Document
pursuant to this paragraph 14, even if neither party has been advised of the
possibility of such damages. In the event Customer requests IBM Credit to
effect withdrawal or debit of funds from an account of Customer, then in no
event will IBM Credit be liable for any amount in excess of any amount
incorrectly debited, except in the event of IBM Credit's gross negligence or
willful misconduct. No party will be liable for any failure to perform its
obligations pursuant to this paragraph 14 in connection with any E-Document,
where such failure results from any act of God or other cause beyond such
party's reasonable control (including, without limitation, any mechanical,
electronic or communications failure) which prevents such party from
transmitting or receiving E-Documents.
CUSTOMER RECIPIENT for Internet transmissions:
(PLEASE PRINT)
NAME OF CUSTOMER'S DESIGNATED CENTRAL CONTACT AUTHORIZED TO RECEIVE IDS AND
PASSWORDS:
Mary Driscoll
- -------------------------------------------------------
E-MAIL ADDRESS: mary.driscoll@infotechusa.com
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PHONE NUMBER: 631-205-1000 ext. 115
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15. Time is of the essence in this Agreement. This Agreement will be
effective from the date of its acceptance at IBM Credit's office. Customer
acknowledges receipt of a true copy and waives notice of IBM Credit's
acceptance of it. If IBM Credit advances funds under this Agreement, IBM
Credit will have accepted it. This Agreement will remain in force until one of
the parties gives notice to the other that it is terminated. If Customer
terminates this Agreement, IBM Credit may declare all or any part of the
obligations Customer owes IBM Credit due and payable immediately. If this
Agreement is terminated, Customer will not be relieved from any obligations to
IBM Credit arising out of IBM Credit's advances or commitments made before the
effective date of termination. IBM Credit's rights under this Agreement and
IBM Credit's security interest in present and future Collateral will remain
valid and enforceable until all Customer's obligations to IBM Credit are paid
in full. This Agreement shall be binding and inure to the benefit of IBM
Credit and the Customer and their respective successors and assigns; provided,
that the Customer shall have no right to assign this Agreement without
the prior written consent of IBM Credit. This Agreement will protect and bind
IBM Credit's and Customer's respective heirs, representatives, successors and
assigns. It can be varied only by a document signed by IBM Credit's and
Customer's authorized representatives. If any provision of this Agreement or
its application is invalid or unenforceable, the remainder of this Agreement
will not be impaired or affected and will remain binding and enforceable. This
Agreement is executed with the authority of Customer's Board of Directors, and
with shareholder approval, if required by the law, if Customer is a
corporation or if Customer is a limited liability company, with the authority of
authorized members. All notices IBM Credit sends to Customer will be
sufficiently given if mailed or delivered to Customer as its address shown in
paragraph 5.
16. The laws of the State of New York will govern this Agreement. Customer
agrees that venue for any lawsuit will be in the State of Federal Court within
the county, parish, or district where IBM Credit's office, which provides the
financial accommodations, is located. Customer hereby waives any right to
change the venue of any action.
17. If Customer has previously executed any security agreements relating to
the Collateral with IBM Credit, Customer agrees that this Agreement is
intended only to amend and supplement such written agreements, and will not be
deemed to be a novation or termination of such written agreements. In the
event the terms of this Agreement conflict with the terms of any prior
security agreement that Customer previously executed with IBM Credit, the
terms of this Agreement will control in determining the agreement between
Customer and IBM Credit.
18. CUSTOMER WAIVES ALL EXEMPTIONS AND HOMESTEAD LAWS TO THE MAXIMUM EXTENT
PERMITTED BY LAW. CUSTOMER WAIVES ANY STATUTORY RIGHT TO NOTICE OR HEARING
PRIOR TO IBM CREDIT'S ATTACHMENT, REPOSSESSION OR SEIZURE OF THE COLLATERAL.
CUSTOMER FURTHER WAIVES ANY AND ALL RIGHTS OF SETOFF CUSTOMER MAY HAVE AGAINST
IBM CREDIT. CUSTOMER AGREES THAT ANY PROCEEDING IN WHICH CUSTOMER, OR IBM
CREDIT OR ANY OF IBM CREDIT'S AFFILIATES, OR CUSTOMER'S OR IBM CREDIT'S
ASSIGNS ARE PARTIES, AS TO ALL MATTERS AND THINGS ARISING DIRECTLY OR
INDIRECTLY OUT OF THIS AGREEMENT, OR THE RELATIONS AMONG THE PARTIES LISTED IN
THIS PARAGRAPH WILL BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE
WITHOUT A JURY. EACH PARTY TO THIS AGREEMENT HEREBY WAIVES ANY RIGHT TO A JURY
TRIAL IN ANY SUCH PROCEEDING.
ATTEST:
/s/ John H. Spielberger
- ----------------------------------- INFORMATION TECHNOLOGY SERVICES, INC.
Secretary Customer
By: /s/ Mary Driscoll
---------------------------------
Print Name:
John H. Spielberger
- ---------------------------
Print Name: Mary Driscoll
-------------------------
Title: Controller
------------------------------
(CORPORATE SEAL)
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E-BUSINESS SCHEDULE A ("SCHEDULE A")
CUSTOMER NAME: INFORMATION TECHNOLOGY SERVICES, INC.
EFFECTIVE DATE OF THIS SCHEDULE A: December 1, 2000
------------------------
E-DOCUMENTS AVAILABLE TO SUPPLIERS:
Invoices
Payment Report/Remittance Advisor
E-DOCUMENTS AVAILABLE TO CUSTOMER:
Invoices
Remittance Advisor
Transaction Approval
Billing Statement
Payment Planner
Auto Cash
Statements of Transaction
Common Dispute Form
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SECRETARY'S CERTIFICATE OF RESOLUTION
I certify that I am the Secretary and the official custodian of certain
records, including the certificate of incorporation, charter, by-laws and
minutes of the meeting of the Board of Directors of the corporation named
below, and that the following is a true, accurate and compared extract from
the minutes of the Board of Directors of the corporation adopted at a special
meeting thereof held on due notice, at which meeting there was present a
quorum authorized to transact the business described below, and that the
proceedings of the meeting were in accordance with the certificate of
incorporation, charter and by-laws of the corporation, and that they have
not been revoked, annulled or amended in any manner whatsoever.
Upon motion duly made and seconded, the following resolution was
unanimously adopted after full discussion: "RESOLVED, That the several
officers, directors and agents of this corporation, or any one or more of
them, are hereby authorized and empowered on behalf of this corporation: to
obtain financing from IBM Credit Corporation ("IBM Credit") in such amounts
and on such terms as such officers, directors or agents deem proper; to enter
into security and other agreements with IBM Credit relating to the terms upon
which financing may be obtained and security to be furnished by this
corporation therefor; from time to time to supplement or amend any such
agreements; and from time to time to pledge, assign, guaranty, mortgage, grant
security interest in and, otherwise transfer to IBM Credit as collateral
security for any obligations of this corporation to IBM Credit and its
affiliated companies, whenever and however arising, any assets of this
corporation, whether now owned or hereafter acquired; hereby ratifying,
approving and confirming all that any of said officers, directors or agents
have done or may do in the premises."
IN WITNESS WHEREOF, I have executed and affixed the seal of the
corporation on the date stated below.
Dated: November 27 , 2000 /s/ John H. Spielberger
-------------------- ------ ---------------------------------
Secretary
SysComm International Corp.
---------------------------------
Corporate Name
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