COLLATERALIZED GUARANTY
1. In
consideration of credit and financing accommodations granted or to be granted by
IBM Credit LLC
with an
office located at 0000Xxxxxxxxx Xxxxxxx, Xxxxxxx, XX 00000 ("IBM Credit") to
En Pointe Technologies Sales, Inc.
("Customer"), which is in the best interest of En Pointe Technologies, Inc.
("Guarantor"),
and for other good and valuable consideration received, Guarantor jointly and
severally guaranties
to IBM Credit, from property held separately, jointly or in community, the
prompt and unconditional performance
and payment by Customer of any and all obligations, liabilities, contracts,
mortgages, notes, trust receipts,
secured transactions, inventory financing and security agreements, and
commercial paper on which Customer
is in any manner obligated, heretofore, now, or hereafter owned, contracted or
acquired by IBM Credit
("Liabilities"), whether the Liabilities are individual, joint, several,
primary, secondary, direct, contingent or
otherwise. Xxxxxxxxx also agrees to indemnify IBM Credit and hold IBM Credit
harmless against any losses it may
sustain and expenses it may incur, suffer or be liable for as a result of or in
any way arising out of, following,
or consequential to any transactions with or for the benefit of
Customer.
2. Guarantor
represents and covenants that its name as stated above is the exact name of
Guarantor as set forth in
its charter or other organizational record. Guarantor represents that it is duly
organized under the laws of the
State of Delaware and the organization document creating Guarantor has been
filed in the appropriate office of
such State. Guarantor's organization identification number assigned by its State
of organization is 2589668.
Guarantor represents that its principal place of business is located
at:
00000 X.
Xxxxxxxx Xxxxxx, Xxxxxxx, XX 00000-4506. Guarantor represents that its business
is conducted as a corporation.
Guarantor will not change its name, location (as defined in Article 9 of the
U.C.C.) or State of organization
without providing IBM Credit at least 30 days prior written notice of any such
change . Guarantor will
provide IBM Credit at least thirty (30) days prior written notice of any change
in Guarantor's chief executive
office or principal place of business. The Collateral (as defined below) shall
be kept at Guarantor's principal
place of business and at the following addresses: various branches
throughout
Guarantor
will notify IBM Credit if any Collateral is moved to any other address.
Guarantor and Guarantor's predecessors have done business during the last six
(6) months only under the following names:
This
paragraph is not in any manner intended to limit the extent of IBM Credit's
security interest in the Collateral.
3. If
Customer fails to pay or perform any Liabilities to IBM Credit when due, all
Liabilities to IBM Credit shall then be deemed to have become immediately due
and payable, and Guarantor shall then pay upon demand the full amount of all
sums owed to IBM Credit by Customer, together with all expenses, including
reasonable attorney's fees.
4. The
liability of Guarantor is direct and unconditional and shall not be affected by
any extension, renewal or other change in the terms of payment of any security
agreement or any other agreement between IBM Credit and Customer, or any change
in the manner, place or terms of payment or performance thereof, or the release,
settlement or compromise of or with any party liable for the payment or
performance thereof, or the waiver of any default or event of default under any
financing agreement between IBM Credit and Customer, or the release or
non-perfection of any security thereunder, any change in Customer's financial
condition, or the interruption of business relations between IBM Credit and
Customer. This Guaranty is and shall be deemed to be a continuing guaranty and
shall remain in full force and effect until the indefeasible payment in full of
the Liabilities and any other amounts payable under this Guaranty and the
cessation of all obligations of IBM Credit to extend credit to Customer.
Guarantor acknowledges that its obligations hereunder are in addition to and
independent of any agreement or transaction between IBM Credit and Customer or
any other person creating or reserving any lien, encumbrance or security
interest in any property of Customer or any other person as security for any
obligation of Customer. IBM Credit need not exhaust its rights or
recourse
CoIIGuar.lvvp
(8/21/01) Page 1 of
6 01-15-2003
against
Customer or any other person or any security IBM Credit may have at any time
before being entitled to payment from Guarantor.
5. To secure
payment of all of Guarantor's current and future debts and obligations to IBM
Credit, whether under this Guaranty or any other agreement between IBM Credit
and Guarantor, whether direct or contingent, Guarantor does assign, pledge and
give to IBM Credit a security interest in all of Guarantor's personal property,
whether now owned or hereafter acquired or existing and wherever located,
including the following: all goods, including inventory and equipment, and all
parts thereof, attachments, accessories and accessions thereto, products thereof
and documents therefor; all accounts, chattel paper, instruments, negotiable
documents, promissory notes, general intangibles (including contract rights,
software and licenses), deposit accounts, commercial tort claims, intellectual
property, investment property, pledged notes, letter of credit rights,
supporting obligations, obligations of any kind owing to Guarantor, whether or
not arising out of or in connection with the sale or lease of goods or the
rendering of services and all books, invoices, documents and other records in
any form evidencing or relating to any of the foregoing; all substitutions and
replacements for all of the foregoing, and all products or proceeds of all of
the foregoing (all of the above assets are defined pursuant to the provisions of
Article 9 of the Uniform Commercial Code as in effect in the State of New York
and are hereinafter referred to as the "Collateral").
6. IBM
Credit shall have the right, but not the obligation, from time to time, as IBM
Credit in its sole discretion may determine, and with advance notice to
Guarantor, to no more than 3 times per year,: (a) examine the Collateral; (b)
appraise it as security; (c) verify its condition and nonuse; (d) verify that
all Collateral has been properly accounted for and this Agreement complied with,
and (e) assess, examine, check and make copies of any and all of Guarantor's
books, records and files relating only to International Business Machines
Corporation and/or IBM Global Services.
7. If
Guarantor does not comply with any of the terms of this Agreement, or Guarantor
fails to fulfill any obligation to IBM Credit or any of IBM Credit's affiliates
under any other agreement between IBM Credit and Guarantor or between Guarantor
and any of IBM Credit's affiliates, or Guarantor becomes insolvent or ceases to
do business as a going concern, or a bankruptcy, insolvency proceeding,
arrangement or reorganization is filed by or against Guarantor, or any of
Guarantor's property is attached or seized, or a receiver is appointed for
Guarantor, or Guarantor commits any act which impairs the prospect of full
performance or satisfaction of Guarantor's obligations to IBM Credit, or
Guarantor shall lose any franchise, permission, license or right to conduct its
business, or Guarantor misrepresents its financial condition or organizational
structure, or whenever IBM Credit deems the debt or Collateral to be
insecure:
(a) IBM
Credit may call all or any part of the amount Guarantor or Customer owes IBM
Credit or IBM Credit's affiliates due and payable immediately, if permitted by
applicable law, together with court costs and all costs and expenses of IBM
Credit's repossession and collection activity, including, but not limited to
reasonable attorney's fees.
(b) Guarantor
will hold and keep the Collateral in trust, in good order and repair, for IBM
Credit's benefit and shall not exhibit or sell it.
(c) Upon IBM
Credit's demand, Guarantor will immediately deliver the Collateral to IBM
Credit, in good order and repair, at a place reasonably convenient to IBM
Credit, together with all related documents; or IBM Credit may, in IBM Credit's
sole discretion and without demand, take immediate possession of the Collateral,
together with all related documents.
(d) Guarantor
waives and releases: (i) any and all claims and causes of action which Guarantor
may now or ever have against IBM Credit as a result of any possession,
repossession, collection or sale by IBM Credit of any of the Collateral,
notwithstanding the effect of such possession, repossession, collection or sale
upon Guarantor's business; (ii) all rights of redemption from any such sale; and
(iii) the benefit of all valuation, appraisal and exemption laws. If IBM Credit
seeks to take possession of any of the Collateral by replevin or other court
process, Guarantor does not waive any notice, bonds, surety and security
relating thereto required by any statute, court rule or otherwise
CollGuar.lwp
(8/21/01) Page 2 of
6 01-15-2003
as an
incident to such possession and any demand for possession of the Collateral
prior to the commencement of any suit or action to recover possession
thereof.
(e) Guarantor
appoints IBM Credit or any person IBM Credit may delegate as its duly authorized
Attorney-in-Fact (without notifying Guarantor) to do, in IBM Credit's sole
discretion, any of the following: (i) sell, assign, transfer, negotiate or
pledge any and all accounts, chattel paper, or contract rights; (ii) endorse
Guarantor's name on any and all notes, checks, drafts, or other forms of
exchange received as payment on any accounts, chattel paper and contract rights,
for deposit in IBM Credit's account; (iii) grant any extension, rebate or
renewal on any and all accounts, chattel paper or contract rights, or enter into
any settlement thereof; (iv) demand, collect and receive any and all amounts due
on accounts, chattel paper and contract rights; and (v) exercise any and all
rights Guarantor has in the Collateral.
(f) In the
event Guarantor or IBM Credit brings any action or asserts any claim which
arises out of this Agreement, any other agreement or any of Guarantor's and IBM
Credit's business dealings, the prevailing party shall be entitled to all court
costs and all costs and expenses incurred relating to such action of claim
including, but not limited to, reasonable attorney's fees.
8. IBM
Credit may also declare a default under this Agreement and exercise any and all
rights and remedies available herein, if, in IBM Credit's sole discretion, IBM
Credit determines that the Collateral has materially decreased in value, and
Guarantor has been unable to either: (a) provide IBM Credit with additional
Collateral in a form and substance satisfactory to IBM Credit; or (b) reduce the
total indebtedness of Customer by an amount sufficient to IBM
Credit.
9. IBM
Credit has and will always possess all the rights and remedies of a secured
party under law, and IBM Credit's rights and remedies are and will always be
cumulative. Guarantor acknowledges and agrees that the Collateral is the subject
of widely distributed standard price quotations and is customarily sold in a
recognized market. Guarantor agrees that a private sale by IBM Credit of any of
the Collateral to a recognized dealer in those types of Collateral is a
commercially reasonable sale. Further, Xxxxxxxxx agrees that IBM Credit's
delivery of any of the Collateral to a distributor or manufacturer, with a
request that it repurchase Collateral, as provided in any repurchase agreement
with IBM Credit, is a commercially reasonable disposition or
sale.
10. Guarantor
promises that (a) the Collateral is and shall remain free from all claims and
liens except IBM Credit's and claims and liens of Persons who have executed an
Intercreditor Agreement or a subordination agreement with IBM Credit; (b)
Guarantor shall defend the Collateral against all other claims and demands
except of Persons who have executed an Intercreditor Agreement or a
subordination agreement with IBM Credit; and (c) Guarantor will notify IBM
Credit before it signs, or authorizes the signing of any financing statement
regardless of its coverage except with Persons who have executed an
Intercreditor Agreement or a subordination agreement with IBM Credit . Guarantor
authorizes IBM Credit to file with any filing office such financing statements,
amendments, addenda and other records showing IBM Credit as secured party,
Guarantor as the debtor and identifying IBM Credit's security interest in the
Collateral that IBM Credit deems necessary to perfect and maintain IBM Credit's
security interest in the Collateral. Guarantor will execute any and all
documents IBM Credit may request to confirm or perfect IBM Credit's title or
security interest in the Collateral.
11. Guarantor
will pay all taxes, license fees, assessments and charges on the Collateral when
due. Guarantor will be responsible for any loss of Collateral for any reason
whatsoever. Guarantor will keep the Collateral insured for its full insurable
value against loss or damage by fire, wind, theft and for combined additional
coverage, including vandalism and malicious mischief, and for other risks as IBM
Credit may require. Guarantor will obtain insurance under such terms and in
amounts as IBM Credit may specify, from time to time, in companies acceptable to
IBM Credit, with a 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 Guarantor that is acceptable to IBM Credit. Guarantor further agrees to
provide IBM Credit with written evidence of the required insurance coverage and
loss-payee or mortgagee clause. Guarantor assigns to IBM Credit all sums not in
excess of the unpaid debt owed IBM Credit, and directs any insurance company to
make payment directly to IBM Credit to be applied to the unpaid debt owed IBM
Credit. Guarantor further grants IBM Credit an irrevocable power of attorney to
endorse any draft and sign and file all of the necessary papers, forms and
documents to initiate and settle any and all claims with respect to the
Collateral. If Guarantor fails to pay any of the above-referenced costs, charges
or any insurance premiums, or if it fails to insure the Collateral,
IBM
CollGuar.lwp
(8/2 I/O I) Page 3 of
6 01-15-2003
Credit
may pay such costs, charges or any insurance premiums, and the amounts paid
shall be considered an additional debt owed by Guarantor to IBM Credit.
Guarantor will promptly notify IBM Credit of any loss, theft or destruction of
or damage to any of the Collateral.
12. Guarantor
will not rent, lease, lend, demonstrate, pledge, create a security interest in,
transfer or secrete any of the Collateral, or use the Collateral for any purpose
other than exhibition, without IBM Credit's prior written
consent.
13. This
Guaranty is assignable, shall be construed liberally in IBM Credit's favor, and
shall inure to the benefit of and bind IBM Credit's and Guarantor's respective
successors, personal representatives and assigns, and also benefit any of IBM
Credit's existing or future affiliates that may extend credit to
Customer.
14. If
Customer hereafter is incorporated, acquired by a corporation, dissolved, or
otherwise undergoes any change in its management, ownership, identity, or
organizational structure, this Guaranty shall continue to extend to any
Liabilities of the Customer or such resulting corporation, dissolved
corporation, or new or changed legal entity, or identity to IBM
Credit.
15. Guarantor
waives: notice of the acceptance of this Guaranty, and of presentment, demand
and protest; notices of nonpayment, nonperformance and dishonor; notices of
amount of indebtedness of Customer outstanding at any time; notices of the
number and amount of advances made by IBM Credit to Customer in reliance on this
Guaranty; notice of the financial condition of Customer or any other guarantor
or any change therein; notice of the release of collateral for the Liabilities,
of any other guaranty, pledge or suretyship agreement or any collateral
therefor; notices of any legal proceedings or other efforts to collect against
Customer; notice of any recoupment, setoff, administrative freeze on Customer's
credit or assets; notice and any opportunity for a hearing as to any prejudgment
remedies; and any other demands and notices required by law. Guarantor further
waives all rights to assert against IBM Credit any defense based on the lack of
good faith. To the extent permitted by law, Guarantor also waives any and all
rights in and notices or demands relating to any Collateral now or hereafter
securing any of the Liabilities. All waivers by Guarantor herein shall survive
any termination or revocation of this Guaranty.
16. Guarantor
authorizes IBM Credit to sell at public or private sale or otherwise realize
upon the Collateral now or hereafter securing any of the Liabilities, in such
manner and upon such commercially reasonable terms and conditions as IBM Credit
deems best, all without advertisement or notice to Customer, Guarantor, or any
third parties. Guarantor further authorizes IBM Credit to deal with the proceeds
of such Collateral as provided in IBM Credit's agreement with Customer, without
prejudice to IBM Credit's claim for any deficiency and free from any right or
redemption on the part of Customer, Guarantor or any third parties, which right
or redemption is hereby waived together with every formality prescribed by
custom or by law in relation to any such sale or other
realization.
17. Guarantor
further agrees that all of its right, title and interest in, to and under any
loans, notes, debts and all other liabilities and obligations whatsoever owed by
Customer to Guarantor, whether heretofore or hereafter created or incurred and
for whatever amount, and all security therefor, shall be now and hereafter at
all times fully subordinated to all Liabilities. Guarantor will not ask, demand
or sue for, or take or receive payment of, all or any part of such loans, notes,
debts or any other liabilities or obligations whatsoever or any security
therefor, until and unless all of the Liabilities are paid, performed and fully
satisfied. In addition, until such time that the Liabilities are indefeasibly
paid in full, Guarantor irrevocably waives, for the benefit of IBM Credit, any
and all rights which it presently has, or may hereafter have, whether by virtue
of any payment or payments hereunder or otherwise, to be subrogated to the
rights of IBM Credit against the Customer with respect to any such indebtedness
of the Customer to IBM Credit.
18. Guarantor
has made an independent investigation of the financial condition of Customer and
gives this Guaranty based on that investigation and not upon any representations
made by IBM Credit. Guarantor acknowledges that it has access to current and
future Customer financial information which will enable Guarantor to
continuously remain informed of Customer's financial condition. Guarantor also
consents to and agrees that the obligations under this Guaranty shall not be
affected by IBM Credit's subsequent increases or
.
CollGuar.lwp
(8/21/01) Page 4 of
6 01-15-2003
decreases
in the credit line that IBM Credit may grant to Customer; substitutions,
exchanges or releases of all or any part of the Collateral now or hereafter
securing any of the Liabilities; sales or other dispositions of any or all of
the Collateral now or hereafter securing any of the Liabilities without demands,
advertisement or notice of the time or place of the sales or other dispositions;
realizing on the Collateral to the extent IBM Credit, in IBM Credit's sole
discretion, deems proper; or purchases of all or any part of the Collateral for
IBM Credit's own account.
19. This
Guaranty and any and all obligations, liabilities, terms and provisions herein
shall survive any and all bankruptcy or insolvency proceedings, actions and/or
claims brought by or against Customer, whether such proceedings, actions and/or
claims are federal and/or state.
20. This
Guaranty is submitted by Guarantor to IBM Credit (for IBM Credit's acceptance or
rejection thereof) at IBM Credit's above specified office; as an offer by
Guarantor to guaranty the credit and financial accommodations provided by IBM
Credit to Customer. If accepted, this Guaranty shall be deemed to have been made
at IBM Credit's above-specified office. This Guaranty and all obligations
pursuant thereto, shall be governed and controlled as to interpretation,
enforcement, validity, construction, effect and, in all other respects by the
laws of the State of New York without giving effect to the principles of
conflicts of laws. Guarantor, to induce IBM Credit to accept this Guaranty,
agrees that all actions or proceedings arising directly or indirectly in
connection with, out of, related to or from this Guaranty may be litigated, at
IBM Credit's sole discretion and election, in courts within the State of New
York. Guarantor consents and submits to the jurisdiction of any local, state or
federal court located within that state. Guarantor waives any right to transfer
or change the venue of any litigation brought against Guarantor by IBM Credit in
accordance with this paragraph.
21. Any delay
by IBM Credit, or IBM Credit's successors, affiliates or assigns in exercising
any or all rights granted IBM Credit under this Guaranty shall not operate as a
waiver of those rights. Furthermore, any failure by IBM Credit, IBM Credit's
successors, affiliates or assigns, to exercise any or all rights granted IBM
Credit under this Guaranty shall not operate as a waiver of IBM Credit's right
to exercise any or all of them later. This document contains the full agreement
of the parties concerning the guaranty of Customer's Liabilities and can be
varied only by a document signed by all of the parties
hereto.
THE
PARTIES AGREE THAT ANY ACTION, SUIT OR PROCEEDING, RELATING DIRECTLY OR
INDIRECTLY TO THIS GUARANTY, OR THE RELATIONSHIP BETWEEN IBM CREDIT AND
GUARANTOR, WILL BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE WITHOUT
A JURY. THUS, THE PARTIES HEREBY WAIVE ANY RIGHT TO A JURY TRIAL IN ANY SUCH
ACTION, SUIT OR PROCEEDING.
IBM
Credit
LLC En
Pointe Technologies, Inc.
By: /s/ Xxxxxx
Xxxxxxxxxxx
By: /s/ Xxxxx
Xxxxx
Print
Name: Xxxxxx
Xxxxxxxxxxx
Print Name: Xxxxx
Xxxxx
Title:
Regional Credit
Officer
Title: CFO
CollGuar.lwp
(8/2 I/O I) Page 5 of
6 01-15-2003
SECRETARY'S
CERTIFICATE
I, Xxxxxx
X. Xxxxxx, certify that I am the Secretary of En Pointe Technologies, Inc. and
that I am custodian of the Customer's organizational books and records,
including the minutes of the meetings of the Customer's Board of Directors. I
further certify as follows:
The
following is a true, accurate and compared copy of a Resolution (the
"Resolution") adopted by the Customer's Board of Directors at a special meeting
thereof held on due notice at which there was present a quorum authorized to
adopt the Resolution and the entire proceedings of which were proper and in
accordance with the Customer's Governing Documents. The Resolution was duly
made, seconded and unanimously adopted, remains in full force and effect and has
not been revoked, annulled, amended or modified in any manner whatsoever, and
each authorization and empowerment contained in the Resolution is permitted and
proper under the Customer's Governing Documents:
"Resolved,
that:
BE IT
RESOLVED that any officer of this corporation is hereby authorized to execute a
guaranty of the obligations of En Pointe Technologies Sales, Inc.
("Dealer") to IBM Credit LLC (“IBM”) 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 IBM, any officer of this corporation is hereby authorized
to pledge, assign, mortgage, grant security interests, and otherwise transfer to
IBM as collateral security for any obligations of this corporation to IBM,
whenever and however arising, any assets of this corporation, whether now owned
or hereafter acquired.
IN WITNESS WHEREOF, I have signed this certificate this 18th day of March,
2008.
/s/ Xxxxxx X.
Xxxxxx
Name: Xxxxxx X. Xxxxxx
(SEAL)
CollGuar.lwp
(8/21/01) Page 6 of
6 01-15-2003
