BUSINESS FINANCING AGREEMENT
This Business Financing Agreement ("Agreement") is made as of September 8, 2000
between Deutsche Financial Services Corporation ("DFS") and ePlus Technology,
inc., a |___| SOLE PROPRIETORSHIP, |___| PARTNERSHIP, |XX| CORPORATION, |___|
LIMITED LIABILITY COMPANY (check applicable term) ("Dealer"), having a principal
place of business located at 000 Xxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxx 00000.
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1. DEFINITIONS
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1.1 Special Definitions. The following terms will have the following
meanings in this Agreement, Agreement for Wholesale Financing and in
the Other Agreements:
"Accounts": all accounts, leases, contract rights, chattel paper,
choses in action and instruments, including any lien or other
security interest that secures or may secure any of the
foregoing, plus all books, invoices, documents and other records
in any form evidencing or relating to any of the foregoing, now
owned or hereafter acquired by Dealer.
"Accounts Receivable Facility": a credit facility extended
pursuant to this Agreement.
"Agreement for Wholesale Financing": any Agreement for Wholesale
Financing, as amended from time to time, which Dealer has
executed in conjunction with inventory financing extended by DFS.
"Average Contract Balance": the amount determined by dividing:
(a) the sum of the Daily Contract Balances (as defined in Section
2.1.1) for a billing period; by, (b) the actual number of days in
such billing period.
"Default": the events or occurrences enumerated in Section 6.
"Entity": any individual, association, firm, corporation,
partnership, limited liability company, trust, governmental body,
agency or instrumentality whatsoever.
"Government Accounts": Accounts due and payable to a U.S. county,
state or federal governmental body, agency or instrumentality; or
body, agency or instrumentality of the District of Columbia.
"Guarantor": a guarantor of any of the Obligations. "Inventory":
all of Dealer's presently owned and hereafter acquired goods
which are held for sale or lease.
"Obligations": all liabilities and indebtedness now or hereafter
arising, owing, due or payable from Dealer to DFS (and any of its
subsidiaries and affiliates), including any third party claims
against Dealer satisfied or acquired by DFS, whether primary or
secondary, joint or several, direct, contingent, fixed or
otherwise, and whether or not evidenced by instruments or
evidences of indebtedness, and all covenants, agreements
(including consent to binding arbitration), warranties, duties
and representations, whether such Obligations arise under this
Agreement, the Other Agreements or any other agreements
previously, now or hereafter executed by Dealer and delivered to
DFS or by operation of law.
"Other Agreements": all security agreements (including the
Agreement for Wholesale Financing), mortgages, leases,
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instruments, documents, guarantees, schedules, certificates,
contracts and similar agreements heretofore, now or hereafter
executed by Dealer and delivered to DFS or delivered by or on
behalf of Dealer to a third party and assigned to DFS by
operation of law or otherwise.
"Non-Government Accounts": all Accounts other than Government
Accounts.
"Prime Rate": the rate of interest which Chase Manhattan Bank
publicly announces from time to time as its prime rate or
reference rate; provided, however, that for purposes of this
Agreement, the interest rate charged to Dealer will at no time be
computed on a Prime Rate of less than six and one half percent
(6.5%) per annum. The Prime Rate will change and take effect for
purposes of this Agreement on the day that Chase Manhattan Bank
announces any change in its Prime Rate or reference rate.
2. CREDIT FACILITY/INTEREST RATES/FEES
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2.1 Accounts Receivable Facility. Subject to the terms of this Agreement,
DFS agrees to provide to Dealer an Accounts Receivable Facility of SIX
MILLION DOLLARS ($6,000,000). DFS' decision to advance funds will not
be binding until the funds are actually advanced.
2.1.1 Interest. Dealer agrees to pay interest to DFS on the Daily
Contract Balance at a rate equal to the Prime Rate minus one-half
of one percent (0.5%) per annum. Such interest will: (i) be
computed based on a 360 day year; (ii) be calculated each day by
multiplying the Daily Rate (as defined below) by the Daily
Contract Balance (as defined below); and (iii) accrue from the
date that DFS authorizes any Electronic Transfer (as defined in
Section 3.10 herein) or otherwise makes an advance under the
Accounts Receivable Facility until DFS receives the full and
final payment of the principal debt which Dealer owes to DFS,
subject to the terms of Section 3.8 herein. The "Daily Rate" is
the quotient of the applicable annual rate provided herein
divided by 360. The "Daily Contract Balance" is the amount of the
outstanding principal debt which Dealer owes to DFS on the
Accounts Receivable Facility at the end of each day (including
the amount of all Electronic Transfers authorized) after DFS has
credited the payments which it has received on the Accounts
Receivable Facility, subject to the terms of Section 3.8 herein.
2.1.2 Maximum Interest. Dealer acknowledges that DFS intends to
strictly conform to the applicable usury laws governing this
Agreement. Regardless of any provision contained herein or in any
other document executed or delivered in connection herewith or
therewith, DFS shall never be deemed to have contracted for,
charged or be entitled to receive, collect or apply as interest
on this Agreement (whether termed interest herein or deemed to be
interest by judicial determination or operation of law), any
amount in excess of the maximum amount allowed by applicable law,
and, if DFS ever receives, collects or applies as interest any
such excess, such amount which would be excessive interest will
be applied first to the reduction of the unpaid principal
balances of advances under this Agreement, and, second, any
remaining excess will be paid to Dealer. In determining whether
or not the interest paid or payable under any specific
contingency exceeds the highest lawful rate, Dealer and DFS
shall, to the maximum extent permitted under applicable law: (a)
characterize any non-principal payment (other than payments which
are expressly designated as interest payments hereunder) as an
expense or fee rather than as interest; (b) exclude voluntary
pre-payments and the effect thereof; and (c) spread the total
amount of interest throughout the entire term of this Agreement
so that the interest rate is uniform throughout such term.
2.2 Payments. DFS will send Dealer a monthly billing statement(s)
identifying all charges due on Dealer's account with DFS. The interest
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and fee charges specified on each billing statement will be: (a) due
and payable in full immediately on receipt, and (b) an account stated,
unless DFS receives Dealer's written objection thereto within fifteen
(15) days after it is mailed to Dealer. If DFS does not receive, by
the 25th day of any given month, payment of all charges accrued to
Dealer's account with DFS during the immediately preceding month,
Dealer will (to the extent allowed by law) pay DFS a late fee ("Late
Fee") equal to the greater of $5 or 5% of the amount of such finance
charges (payment of the Late Fee does not waive the default caused by
the late payment). Dealer will also pay DFS $100 for each of Dealer's
checks returned unpaid for insufficient funds (an "NSF check") (such
$100 payment repays DFS' estimated administrative costs; it does not
waive the default caused by the NSF check). DFS may adjust the billing
statement at any time to conform to applicable law and this Agreement.
Dealer waives the right to direct the application of any payments
hereafter received by DFS on account of the Obligations. DFS will have
the continuing exclusive right to apply and reapply any and all such
payments in such manner as DFS may deem advisable notwithstanding any
entry by DFS upon its books and records.
2.3 One Loan. DFS may combine all of DFS' advances to Dealer or on
Dealer's behalf, whether under this Agreement or any Other Agreements,
and whether provided by one or more of DFS' branch offices, together
with all finance charges, fees and expenses related thereto, to make
one debt owed by Dealer.
3. ACCOUNTS RECEIVABLE FACILITY - ADDITIONAL PROVISION
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3.1 Schedules. Dealer will, no less than weekly or as otherwise agreed to,
furnish DFS with a schedule of Accounts ("Schedule") which will: (a)
describe all Accounts created or acquired by Dealer since the last
Schedule furnished DFS; (b) inform DFS of any rejection of goods by
any obligor, delays in delivery of goods, non-performance of contracts
and of any assertion of any claim, offset or counterclaim by any
obligor; and (c) inform DFS of any adverse information relating to the
financial condition of any obligor.
3.2 Available Credit. On receipt of each Schedule, DFS will credit Dealer
with such amount as DFS may deem advisable up to Ninety Percent (90%)
of the net amount of the eligible Government Accounts listed in such
Schedule and up to Eighty-Five Percent (85%) of the net amount of the
eligible Non-Government Accounts listed in such Schedule; provided,
however, that such amount so credited shall not exceed Dealer's
maximum Accounts Receivable Facility from time to time established by
DFS (the "Available Credit"). If Dealer's outstanding loans under
Dealer's Accounts Receivable Facility exceed Dealer's Available
Credit, Dealer will immediately pay to DFS an amount not less than the
difference between (i) Dealer's outstanding loans under Dealer's
Accounts Receivable Facility, and (ii) Dealer's Available Credit. No
loans need be made by DFS if Dealer is in Default.
3.3 Ineligible Accounts. DFS will have the sole right to determine
eligibility of Accounts and, without limiting DFS' discretion in that
regard, the following Accounts will be deemed ineligible: (a) Accounts
created from the sale of goods and services on non-standard terms
and/or that allow for payment to be made more than thirty (30) days
from the date of sale; (b) Non-Government Accounts unpaid more than
ninety (90) days from date of invoice and Government Accounts unpaid
more than one-hundred twenty (120) days from date of invoice; (c) all
Accounts of any obligor with fifty percent (50%) or more of the
outstanding balance unpaid for more than ninety (90) days from the
date of invoice; (d) Accounts for which the obligor is an officer,
director, shareholder, partner, member, owner, employee, agent,
parent, subsidiary, affiliate of, or is related to Dealer or has
common shareholders, officers, directors, owners, partners or members;
(e) consignment sales; (f) Accounts for which the payment is or may be
conditional; (g) Accounts for which the obligor is not a commercial or
institutional entity or is not a resident of the United States or
Canada; (h) Accounts with respect to which any warranty or
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representation provided in Subsection 3.4 is not true and correct; (i)
Accounts which Dealer knows represent goods or services purchased for
a personal, family or household purpose; (j) Accounts which represent
goods used for demonstration purposes or loaned by the Dealer to
another party; (k) Accounts which are progress payment, barter, or
contra accounts; and (l) any and all other Accounts which DFS
reasonably deems to be ineligible. If DFS determines that any Account
is or becomes an ineligible Account and such ineligible Account
exceeds the Available Credit (as such term is defined in the Paydown
Addendum dated the date hereof), immediately upon notice thereof from
DFS, Dealer will pay to DFS an amount equal to the monies loaned by
DFS for such ineligible Account.
3.4 Warranties and Representations. For each Account which Dealer lists on
any Schedule, Dealer warrants and represents to DFS that at all times:
(a) such Account is genuine; (b) such Account is not evidenced by a
judgment or promissory note or similar instrument or agreement; (c) it
represents an undisputed bona fide transaction completed in accordance
with the terms of the invoices and purchase orders relating thereto;
(d) the goods sold or services rendered which resulted in the creation
of such Account have been delivered or rendered to and accepted by the
obligor; (e) the amounts shown on the Schedules, Dealer's books and
records and all invoices and statements delivered to DFS with respect
thereto are owing to Dealer and are not contingent; (f) no payments
have been or will be made thereon except payments turned over to DFS;
(g) there are no offsets, counterclaims or disputes existing or
asserted with respect thereto and Dealer has not made any agreement
with any obligor for any deduction or discount of the sum payable
thereunder except regular discounts allowed by Dealer in the ordinary
course of its business for prompt payment; (h) there are no facts or
events which in any way impair the validity or enforceability thereof
or reduce the amount payable thereunder from the amount shown on the
Schedules, Dealer's books and records and the invoices and statements
delivered to DFS with respect thereto; (i) all persons acting on
behalf of obligors thereon have the authority to bind the obligor; (j)
the goods sold or transferred giving rise thereto are not subject to
any lien, claim, encumbrance or security interest which is superior to
that of DFS; and (k) there are no proceedings or actions known to
Dealer which are threatened or pending against any obligor thereon
which might result in any material adverse change in such obligor's
financial condition.
3.5 Notes. Loans made pursuant to this Agreement need not be evidenced by
promissory notes unless otherwise required by DFS in DFS' sole
discretion.
3.6 Certain Charges. Dealer will: (a) reimburse DFS for all charges made
by banks, including charges for collection of checks and other items
of payment, and (b) pay DFS' fees for transfers of funds to or from
the Dealer. DFS may, from time to time, announce its fees for
transfers of funds to or from the Dealer, including the issuance of
Electronic Transfers.
3.7 Collections. Unless otherwise directed by DFS, to expedite collection
of Accounts for the benefit of DFS, Dealer shall notify all of its
obligors to make payment of the Accounts to one or more lock-boxes
under the sole control of DFS. The lock-box, and all accounts into
which the proceeds of any such lock-box(es) are deposited, shall be
established at banks selected by the Dealer and satisfactory to DFS in
its sole discretion. Dealer shall issue to any such banks an
irrevocable letter of instruction, in form and substance reasonably
acceptable to DFS, directing such banks to deposit all payments or
other remittances received in the lock-box to such account or accounts
as DFS shall direct, for application against the outstanding balance
of the Obligations. All funds deposited in the lock-box or any such
account immediately shall become the property of DFS, and any
disbursements of the proceeds in the lock-box or any such account will
only be made to DFS. Dealer shall obtain the agreement of such banks
to waive any offset rights against the funds so deposited. DFS assumes
no responsibility for such lock-box arrangement, including, without
limitation, any claim of accord and satisfaction or release with
respect to deposits which any banks accept thereunder. All remittances
which Dealer receives in payment of any Accounts, and the proceeds of
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any of the other Collateral, shall be: (i) kept separate and apart
from Dealer's own funds so that they are capable of identification as
DFS' property; (ii) held by Dealer as trustee of an express trust for
DFS' benefit; and (iii) shall be immediately deposited in such
accounts designated by DFS. All proceeds received or collected by DFS
with respect to Accounts, and reserves and other property of Dealer in
possession of DFS at any time or times hereafter, may be held by DFS
without interest to Dealer until all Obligations are paid in full or
applied by DFS on account of the Obligations. DFS may release to
Dealer such portions of such reserves and proceeds as DFS may
determine. Upon the occurrence and during the continuance of a
Default, DFS may notify the obligors that the Accounts have been
assigned to DFS, collect the Accounts directly in its own name and
charge the collection costs and expenses, including attorneys' fees,
to Dealer. DFS has no duty to protect, insure, collect or realize upon
the Accounts to preserve rights in them.
3.8 Collection Days. All payments and all amounts received on any Account
will be credited by DFS to Dealer's account (subject to final
collection thereof) after allowing two (2) business days for
collection of checks or other instruments.
3.9 Power of Attorney. Dealer irrevocably appoints DFS (and any person
designated by it) as Dealer's true and lawful Attorney with full power
to at any time, in the discretion of DFS (whether or not Default has
occurred) to: (a) endorse the name of Dealer upon any of the items of
payment or proceeds and deposit the same in the account of DFS for
application to the Obligations; (b) sign the name of Dealer to verify
the accuracy of the Accounts; (c) sign the name of Dealer on any
document or instrument that DFS shall deem necessary or appropriate to
perfect and maintain perfected the security interests in the
Collateral under this Agreement and the Other Agreements; and (d)
initiate and settle any insurance claim and endorse Dealer's name on
any check, instrument or other item of payment. In the event of a
Default, Dealer irrevocably appoints DFS (and any person designated by
it) as Dealer's true and lawful Attorney with full power to at any
time, in the discretion of DFS to: (i) demand payment, enforce payment
and otherwise exercise all of Dealer's rights, and remedies with
respect to the collection of any Accounts; (ii) settle, adjust,
compromise, extend or renew any Accounts; (iii) settle, adjust or
compromise any legal proceedings brought to collect any Accounts; (iv)
sell or assign any Accounts upon such terms, for such amounts and at
such time or times as DFS may deem advisable; (v) discharge and
release any Accounts; (vi) prepare, file and sign Dealer's name on any
Proof of Claim in Bankruptcy or similar document against any obligor;
(vii) endorse the name of Dealer upon any chattel paper, document,
instrument, invoice, freight xxxx, xxxx of lading or similar document
or agreement relating to any Account or goods pertaining thereto; and
(viii) take control in any manner of any item of payments or proceeds
and for such purpose to notify the Postal Authorities to change the
address for delivery of mail addressed to Dealer to such address as
DFS may designate.. The power of attorney is for value and coupled
with an interest and is irrevocable so long as any Obligations remain
outstanding and by DFS exercising such right, DFS shall not waive any
right against Dealer until the Obligations are paid in full.
3.10 Continuing Requirements. Advances hereunder will be made by DFS, at
Dealer's direction, by paper check, electronic transfer by Automated
Clearing House ("ACH"), Fed Wire Funds Transfer ("Fed Wire") or such
other electronic means as DFS may announce from time to time (ACH, Fed
Wire and such other electronic transfer are collectively referred to
as "Electronic Transfers"). If Dealer does not request advances be
made in a specific method of transfer, DFS may determine from time to
time in its sole discretion what method of transfer to use. Dealer
will: (a) if from time to time required by DFS, immediately upon their
creation, deliver to DFS copies of all invoices, delivery evidences
and other such documents relating to each Account; (b) not permit or
agree to any material extension, compromise, settlement or change to
any Account unless it has notified DFS of its intention to do so; (c)
affix appropriate endorsements or assignments upon all such items of
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payment and proceeds so that the same may be properly deposited by DFS
to DFS' account; (d) immediately notify DFS in writing which Accounts
may be deemed ineligible as defined in Subsection 3.3; (e) xxxx all
chattel paper and instruments now owned or hereafter acquired by it to
show that the same are subject to DFS' security interest and
immediately thereafter deliver such chattel paper and instruments to
DFS with appropriate endorsements and assignments to DFS; (f) within
ten (10) days after the end of each month, provide DFS with a detailed
aging of its Accounts for each month, (g) provide the names and
addresses of all obligors upon DFS' request.
3.11 Release. Dealer releases DFS from all claims and causes of action
which Dealer may now or hereafter have for any loss or damage to it
claimed to be caused by or arising from: (a) any failure of DFS to
protect, enforce or collect, in whole or in part, any Account; (b)
DFS' notification to any obligors thereon of DFS' security interest in
any of the Accounts; (c) DFS' directing any obligor to pay any sum
owing to Dealer directly to DFS; and (d) any other act or omission to
act on the part of DFS, its officers, agents or employees, except for
willful misconduct or gross negligence. DFS will have no obligation to
preserve rights to Accounts against prior parties. Dealer waives all
rights of offset and counterclaims Dealer may have against DFS.
3.12 Review. Dealer grants DFS an irrevocable license to enter Dealer's
business locations during normal business hours with forty-eight (48)
hours prior notice to Dealer (unless Dealer is in Default in which
case no prior notice shall be required) to: (a) account for and
inspect all Collateral; (b) verify Dealer's compliance with this
Agreement; and (c) review, examine, and make copies of Dealer's books,
records, files and business procedures and practices. Dealer further
agrees to pay DFS a review fee of ONE THOUSAND DOLLARS ($1,000) per
quarter for any such review, inspection or examination made by DFS.
DFS may, without notice to Dealer and at any time or times hereafter,
verify the validity, amount or any other matter relating to any
Account by mail, telephone, or other means, in the name of Dealer or
DFS.
4. SECURITY - COLLATERAL
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4.1 Grant of Security Interest. To secure payment of all of Dealer's
current and future Obligations and to secure Dealer's performance of
all of the provisions under this Agreement and the Other Agreements,
Dealer grants DFS a security interest in all of Dealer's inventory,
equipment, fixtures, accounts, contract rights, chattel paper,
security agreements, instruments, deposit accounts, reserves,
documents, and general intangibles; and all judgments, claims,
insurance policies, and payments owed or made to Dealer thereon; all
whether now owned or hereafter acquired, all attachments, accessories,
accessions, returns, repossessions, exchanges, substitutions and
replacements thereto, and all proceeds thereof. All such assets are
collectively referred to herein as the "Collateral." All of such terms
for which meanings are provided in the Uniform Commercial Code of the
applicable state are used herein with such meanings. Dealer covenants
with DFS that DFS may realize upon all or part of any Collateral in
any order it desires and any realization by any means upon any
Collateral will not bar realization upon any other collateral.
Dealer's liability under this Agreement is direct and unconditional
and will not be affected by the release or nonperfection of any
security interest granted hereunder. All Collateral financed by DFS,
and all proceeds thereof, will be held in trust by Dealer for DFS,
with such proceeds being payable in accordance with this Agreement.
5. WARRANTIES AND REPRESENTATIONS
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5.1 Affirmative Warranties and Representations. Except as otherwise
specifically provided in the Other Agreements, Dealer warrants and
represents to DFS that: (a) Dealer has good title to all Collateral;
(b) DFS' security interest in the Accounts will at all times
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constitute a perfected, first security interest in such Accounts and
will not become subordinate to the security interest, lien,
encumbrance or claim of any Entity; (c) Dealer will execute all
documents DFS reasonably requests to perfect and maintain DFS'
security interest in the Collateral and to fully consummate the
transactions contemplated under this Agreement and the Other
Agreements; (d) Dealer will at all times be duly organized, existing,
in good standing, qualified and licensed to do business in each state,
county, or parish, in which the nature of its business or property so
requires; (e) Dealer has the right and is duly authorized to enter
into this Agreement; (f) Dealer's execution of this Agreement does not
constitute a breach of any agreement to which Dealer is now or
hereafter becomes bound; (g) there are and will be no actions or
proceedings pending or threatened against Dealer which might result in
any material adverse change in Dealer's financial or business
condition or which might in any way adversely affect any of Dealer's
assets; (h) Dealer will maintain the Collateral in good condition and
repair; (i) Dealer has duly filed and will duly file all tax returns
required by law; (j) Dealer has paid and will pay when due all taxes,
levies, assessments and governmental charges of any nature; (k) Dealer
will maintain a system of accounting in accordance with generally
accepted accounting principles and account records which contain such
information in a format as may be requested by DFS; (l) Dealer will
keep and maintain all of its books and records pertaining to the
Accounts either at its principal place of business designated in this
Agreement or at a designated storage facility of which DFS has been
notified in writing; (m) Dealer will promptly supply DFS with such
information concerning it or any Guarantor as DFS hereafter may
reasonably request; (n) Dealer will give DFS thirty (30) days prior
written notice of any change in Dealer's identity, name, form of
business organization, ownership, management, principal place of
business, Collateral locations or other business locations; and before
moving any books and records to any other location; (o) Dealer will
observe and perform all matters required by any lease, license,
concession or franchise forming part of the Collateral in order to
maintain all the rights of DFS thereunder; (p) Dealer will advise DFS
of the commencement of material legal proceedings against Dealer or
any Guarantor; (q) Dealer will comply with all applicable laws and
will conduct its business in a manner which preserves and protects the
Collateral and the earnings and incomes thereof; and (r) Dealer will
keep the Collateral insured for its full insurable value under an "all
risk" property insurance policy with a company acceptable to DFS,
naming DFS as a lender loss-payee and containing standard lender's
loss payable and termination provisions. Dealer will provide DFS with
written evidence of such property insurance coverage and lender's
loss-payee endorsement.
5.2 Negative Covenants. Dealer will not at any time (without DFS' prior
written consent: (a) grant to or in favor of any Entity a security
interest in or permit to exist a lien, claim or encumbrance in the
Accounts which is superior to the interest of DFS; (b) other than in
the ordinary course of its business and if material in nature, sell,
lease or otherwise dispose of or transfer any of its assets; (c) merge
or consolidate with another Entity unless Dealer is the surviving
entity of such merger or consolidation and, after giving effect to
such merger or consolidation, Dealer is in full compliance with all of
the covenants contained in this Agreement and the Other Agreements;
(d) acquire the assets or ownership interest of any other Entity
provided that after giving effect to such acquisition, Dealer is in
full compliance with all of the covenants contained in this Agreement
and the Other Agreements; (e) enter into any material transaction not
in the ordinary course of business; (f) guarantee or indemnify or
otherwise become in any way liable with respect to the obligations of
any Entity, except by endorsement of instruments or items of payment
for deposit to the general account of Dealer or which are transmitted
or turned over to DFS on account of the Obligations; (g) redeem,
retire, purchase or otherwise acquire, directly or indirectly, any of
Dealer's capital stock; (h) make any change in Dealer's capital
structure or in any of its business objectives or operations which
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might in any way adversely affect the ability of Dealer to repay the
Obligations; (i) make any distribution of Dealer's assets not in the
ordinary course of business; (j) incur any debts outside of the
ordinary course of business except renewals or extensions of existing
debts and interest thereon; and (k) except for inter-company payments
made in the ordinary course of business, make any loans, advances,
contributions or payments of money or in goods to any affiliated
entity or to any officer, director, stockholder, member or partner of
Dealer or of any such entity (except for compensation for personal
services actually rendered).
5.3 Financial Statements. Dealer will deliver to DFS: (a) within ninety
(90) days after the end of each of Dealer's fiscal years, a reasonably
detailed balance sheet as of the last day of such fiscal year and a
reasonably detailed income statement covering Dealer's operations for
such fiscal year, in a form satisfactory to DFS; (b) within forty-five
(45) days after the end of each of Dealer's fiscal quarters, a
reasonably detailed balance sheet as of the last day of such quarter
and an income statement covering Dealer's operations for such quarter
in a form satisfactory to DFS; (c) within ten (10) business days after
request therefor by DFS, any other report requested by DFS relating to
the Collateral or the financial condition of Dealer. Dealer warrants
and represents to DFS that all financial statements and information
relating to Dealer or any Guarantor which have been or may hereafter
be delivered by Dealer or any Guarantor to DFS are true and correct
and have been and will be prepared in accordance with generally
accepted accounting principles consistently applied and, with respect
to such previously delivered statements or information, there has been
no material adverse change in the financial or business condition of
Dealer or any Guarantor since the submission to DFS, either as of the
date of delivery, or, if different, the date specified therein, and
Dealer acknowledges DFS' reliance thereon.
6. DEFAULT
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6.1 Definition. Dealer will be in default under this Agreement if: (a)
Dealer breaches any terms, warranties or representations contained
herein or in any Other Agreements (other than as set forth in clause
(d) or (e) below) and such breach is not cured within ten (10) days of
Dealer's receipt of notice thereof; (b) any Guarantor of Dealer's
debts to DFS breaches any terms, warranties or representations
contained in any guaranty or Other Agreements and such breach is not
cured within the applicable cure period set forth therein; (c) any
representation, statement, report, or certificate made or delivered by
Dealer or any Guarantor to DFS is not accurate when made and such
inaccuracy is not cured within ten (10) days of Dealer's or
guarantor's receipt of notice thereof; (d) Dealer fails to pay any of
the Obligations when due and payable and such failure is not cured
within two (2) days of receipt of notice thereof; (e) Dealer abandons
any Collateral and such abandonment is not cured within two (2) days
of Dealer's receipt of notice thereof; (f) Dealer or any Guarantor is
or becomes in default in the payment of any debt owed to any third
party in an amount over five hundred thousand dollars (US$500,000) and
such default is not cured within two (2) days of Dealer's or
guarantor's receipt of notice thereof; (g) a money judgment issues
against Dealer or any guarantor in an amount over $500,000 ; (h) an
attachment, sale or seizure issues or is executed against any assets
of Dealer or of any Guarantor having a value of over $500,000; (i) the
undersigned dies while Dealer's business is operated as a sole
proprietorship, any general partner dies while Dealer's business is
operated as a general or limited partnership, or any member dies while
Dealer's business is operated as a limited liability company, as
applicable; (j) any Guarantor dies; (k) Dealer or any Guarantor shall
cease existence as a corporation, partnership, limited liability
company or trust, as applicable; (l) Dealer or any Guarantor ceases or
suspends business; (m) Dealer, any Guarantor or any member while
Dealer's business is operated as a limited liability company, as
applicable, makes a general assignment for the benefit of creditors;
(n) Dealer, any Guarantor or any member while Dealer's business is
operated as a limited liability company, as applicable, becomes
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insolvent or voluntarily or involuntarily becomes subject to the
Federal Bankruptcy Code, any state insolvency law or any similar law;
(o) any receiver is appointed for any assets of Dealer, any Guarantor
or any member while Dealer's business is operated as a limited
liability company, as applicable; (p) any guaranty of Dealer's debt to
DFS is terminated; (q) Dealer loses any franchiserelated to any
Collateral which DFS finances; (r) Dealer or any Guarantor
misrepresents Dealer's or such Guarantor's financial condition or
organizational structure; (s) there shall occur a material adverse
change in the financial or other condition or business prospects of
Dealer or any Guarantor; or (t) DFS is not secured with respect to any
of the Collateral or the payment of any part of Dealer's Obligations.
Notwithstanding anything to the contrary in this Agreement, DFS will
not be obligated to make any advances hereunder or issue any approvals
to Vendors during any cure period set forth above.
6.2 Rights of DFS. In the event of a Default:
(a) DFS may at any time at DFS' election, without notice or demand to
Dealer, do any one or more of the following: declare all or any
of the Obligations immediately due and payable, together with all
costs and expenses of DFS' collection activity, including,
without limitation, all reasonable attorneys' fees; exercise any
or all rights under applicable law (including, without
limitation, the right to possess, transfer and dispose of the
Collateral); and/or cease extending any additional credit to
Dealer (DFS' right to cease extending credit shall not be
construed to limit the discretionary nature of this credit
facility).
(b) Dealer will segregate and keep the Collateral in trust for DFS,
and in good order and repair, and will not sell, rent, lease,
consign, otherwise dispose of or use any Collateral, nor further
encumber any Collateral.
(c) Upon DFS' oral or written demand, Dealer will immediately deliver
the Collateral to DFS, in good order and repair, at a place
specified by DFS, together with all related documents; or DFS
may, in DFS' sole discretion and without notice or demand to
Dealer, take immediate possession of the Collateral together with
all related documents.
(d) DFS may, without notice, apply a default finance charge to
Dealer's outstanding principal indebtedness equal to the default
rate specified in Dealer's financing program with DFS, if any, or
if there is none so specified, at the lesser of 3% per annum
above the rate in effect immediately prior to the Default, or the
highest lawful contract rate of interest permitted under
applicable law.
(e) DFS may, without notice to Dealer and at any time or times
enforce payment and collect, by legal proceedings or otherwise,
Accounts in the name of Dealer or DFS; and take control of any
cash or non-cash items of payment or proceeds of Accounts and of
any rejected, returned, repossessed or stopped in transit goods
relating to Accounts. DFS may at its sole election and without
demand enter, with or without process of law, any premises where
Collateral might be and, without charge or liability to DFS
therefor do one or more of the following: (i) take possession of
the Collateral and use or store it in said premises or remove it
to such other place or places as DFS may deem convenient; (ii)
take possession of all or part of such premises and the
Collateral and place a custodian in the exclusive control thereof
until completion of enforcement of DFS' security interest in the
Collateral or until DFS' removal of the Collateral and, (iii)
remain on such premises and use the same, together with Dealer's
materials, supplies, books and records, for the purpose of
performing all acts necessary and incidental to the collection or
liquidation of such Collateral.
All of DFS' rights and remedies are cumulative. DFS' failure to
exercise any of DFS' rights or remedies hereunder will not waive
any of DFS' rights or remedies as to any past, current or future
Default.
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6.3 Sale of Collateral. Dealer agrees that if DFS conducts a private sale
of any Collateral by requesting bids from 10 or more dealers or
distributors in that type of Collateral, any sale by DFS of such
Collateral in bulk or in parcels within 120 days of: (a) DFS' taking
possession and control of such Collateral; or (b) when DFS 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. Dealer agrees that the purchase of any Collateral by
a vendor, as provided in any agreement between DFS 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. Dealer 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). Dealer
irrevocably waives any requirement that DFS retain possession and not
dispose of any Collateral until after an arbitration hearing,
arbitration award, confirmation, trial or final judgment. If DFS
disposes of any such Collateral other than as herein contemplated, the
commercial reasonableness of such disposition will be determined in
accordance with the laws of the state governing this Agreement.
7. MISCELLANEOUS
-------------
7.1 Termination. This Agreement will continue in full force and effect and
be non-cancellable by Dealer (except that it may be terminated by DFS
upon sixty (60) days written notice to Dealer or in the exercise of
its rights and remedies upon Default by Dealer) for a period of two
(2) years from the first day of the first month following the date
hereof and for successive one (1) year periods thereafter, subject to
termination as to future transactions at the end of any such period on
at least ninety (90) days prior written notice by Dealer to DFS. If
such notice of termination is given by Dealer to DFS, such notice will
be ineffective unless Dealer pays to DFS all Obligations on or before
the termination date. Any termination of this Agreement by Dealer or
DFS will have the effect of accelerating the maturity of all
Obligations not then otherwise due.
7.1.1 Termination Privilege. Despite anything to the contrary in
Section 7.1 of this Agreement, this Agreement may be terminated
by Dealer at any time upon ninety (90) days prior written notice
and payment to DFS of the following sum (in addition to payment
of all Obligations, whether or not by their terms then due) which
sum represents liquidated damages for the loss of the bargain and
not as a penalty, and the same is hereby acknowledged by Dealer:
(i) if Dealer's termination occurs at any time from the date
hereof up to and including the date preceding the first
anniversary of the date hereof, the sum shall equal One Hundred
Twenty Five Thousand Dollars (representing one half of one
percent (.50%) multiplied by Twenty-Five Million Dollars
($25,000,000)); and (ii) if Dealer's termination occurs at any
time from the first anniversary of the date hereof up to and
including the date preceding the second anniversary of the date
hereof, the sum shall equal Sixty-Two Thousand Five Hundred
Dollars (representing one quarter of one percent (.25%)
multiplied by Twenty-Five Million Dollars ($25,000,000)). This
sum will also be paid by Dealer if the Agreement is terminated by
DFS on account of Dealer's Default, but shall not be payable if
the Agreement is terminated by DFS absent a Default by Dealer.
7.1.2 Termination due to DFS Sale. In the event that DFS is a party to
a merger, consolidation or sale of all or substantially all of
its assets ("Sale"), Dealer shall have the right to notify DFS of
its intention to terminate this Agreement at any time during the
first ninety (90) days following such Sale. This Agreement may
continue, at Dealer's election, for up to ninety (90) additional
days after Dealer provides DFS with notice. In the event that
Dealer elects to terminate this Agreement pursuant to this
Section, the provisions of Section 7.1.1 shall not apply.
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7.1.3 Effect of Termination. Dealer will not be relieved from any
Obligations to DFS arising out of DFS' advances or commitments
made before the effective termination date of this Agreement. DFS
will retain all of its rights, interests and remedies hereunder
until Dealer has paid all of Dealer's Obligations to DFS. All
waivers set forth within this Agreement will survive any
termination of this Agreement.
7.2 Collection. Checks and other instruments delivered to DFS on account
of the Obligations will constitute conditional payment until such
items are actually paid to DFS.
7.3 Demand, Etc. Dealer irrevocable waives notice of: presentment, demand,
protest, nonpayment, nonperformance and dishonor. Dealer and DFS
irrevocably waive all rights to claim any punitive and/or exemplary
damages. Dealer waives all notices of default and non-payment at
maturity of any or all of the Accounts.
7.4 Reimbursement. Dealer will assume and reimburse DFS upon demand for
all expenses incurred by DFS in connection with the preparation of
this Agreement and the Other Agreements (including fees and costs of
outside counsel) and all filing and recording fees and taxes payable
in connection with the filing or recording of all documents under this
Agreement and the Other Agreements; provided, however, that such total
reimbursement by Dealer hereunder will not exceed the sum of ONE
THOUSAND DOLLARS ($1,000.00).
7.5 Additional Obligations. DFS, without waiving or releasing any
Obligation or Default, may perform any Obligations that Dealer fails
or refuses to perform. All sums paid by DFS on account of the
foregoing and any expenses, including reasonable attorneys' fees, will
be a part of the Obligations, payable on demand and secured by the
Collateral.
7.6 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 DEBTS ARE NOT ENFORCEABLE.
TO PROTECT DEALER AND DFS FROM MISUNDERSTANDING OR DISAPPOINTMENT, ALL
AGREEMENTS COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING AND THE
OTHER AGREEMENTS, WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE
AGREEMENT BETWEEN THE PARTIES, EXCEPT AS SPECIFICALLY PROVIDED HEREIN
OR AS THE PARTIES MAY LATER AGREE IN WRITING TO MODIFY IT. THERE ARE
NO UNWRITTEN AGREEMENTS BETWEEN THE PARTIES. DFS may, from time to
time, announce in writing to Dealer its policies and procedures
regarding its administration of this facility, including, without
limitation, DFS' fees for the transfer of funds to or from Dealer,
including Electronic Transfers; any subsequent use by Dealer of this
facility following any such announcement shall constitute Dealer's
acceptance of such revised policies and procedures. Time is of the
essence regarding Dealer's performance of its obligations to DFS
notwithstanding any course of dealing or custom on DFS' part to grant
extensions of time. DFS will have the right to refrain from or
postpone enforcement of this Agreement or any Other Agreements between
DFS and Dealer without prejudice and the failure to strictly enforce
these agreements will not be construed as having created a course of
dealing between DFS and Dealer contrary to the specific terms of the
agreements or as having modified, released or waived the same. The
express terms of this Agreement will not be modified by any course of
dealing, usage of trade, or custom of trade which may deviate from the
terms hereof.
7.7 Severability. If any provision of this Agreement or the Other
Agreements or the application thereof is held invalid or
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unenforceable, the remainder of this Agreement and the Other
Agreements will not be impaired or affected and will remain binding
and enforceable.
7.8 Supplement. If Dealer and DFS have heretofore executed Other
Agreements in connection with all or any part of the Collateral, this
Agreement shall supplement each and every Other Agreement previously
executed by and between Dealer and DFS, and in that event this
Agreement shall neither be deemed a novation nor a termination of any
such previously executed Other Agreement nor shall execution of this
Agreement be deemed a satisfaction of any obligation secured by such
previously executed Other Agreement. In the event of any conflict
between the terms of this Agreement and any previously executed
Business Financing Agreement between DFS and Dealer, the terms of this
Agreement shall control.
7.9 Section Titles. The Section titles used in this Agreement are for
convenience only and do not define or limit the contents of any
Section.
7.10 Binding Effect. Dealer cannot assign its interest in this Agreement or
any Other Agreements without DFS' prior written consent, although DFS
may assign or participate DFS' interest, in whole or in part, without
Dealer's consent. This Agreement and the Other Agreements will protect
and bind DFS' and Dealer's respective heirs, representatives,
successors and assigns.
7.11 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 Dealer at Dealer's principal
place of business specified above; and (b) to DFS at 000 Xxxxxxxxx
Xxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000-0000, Attention: General
Counsel, or such other address as the parties may hereafter specify in
writing.
7.12 Receipt of Agreement. Dealer acknowledges that it has received a true
and complete copy of this Agreement. Dealer acknowledges that it has
read and understood this Agreement. Notwithstanding anything herein to
the contrary: (a) DFS may rely on any facsimile copy, electronic data
transmission or electronic data storage of any Schedule, statement,
financial statements or other reports, and (b) such facsimile copy,
electronic data transmission or electronic data storage will be deemed
an original, and the best evidence thereof for all purposes,
including, without limitation, under this Agreement or any Other
Agreements, and for all evidentiary purposes before any arbitrator,
court or other adjudicatory authority.
7.13 Information. DFS may provide to any third party upon request any
public credit information on Dealer that DFS may from time to time
possess or any financial or other information on Dealer that DFS may
from time to time possess as required by law. DFS may obtain from any
third party any credit, financial or other information regarding
Dealer that such third party may from time to time possess.
8. BINDING ARBITRATION
------- -----------
8.1 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 (including, without
limitation, all torts, whether regarding negligence, breach of
fiduciary duty, restraint of trade, fraud, conversion, duress,
interference, wrongful replevin, wrongful sequestration, fraud in the
inducement, usury or any other tort, all contract actions, whether
regarding express or implied terms, such as implied covenants of good
faith, fair dealing, and the commercial reasonableness of any
Collateral disposition, or any other contract claim, all claims of
deceptive trade practices or lender liability, and all claims
questioning the reasonableness or lawfulness of any act), whether
arising before or after the date of this Agreement, and whether
directly or indirectly relating to: (a) this Agreement or any Other
Agreements and/or any amendments and addenda hereto or thereto, or the
breach, invalidity or termination hereof or thereof; (b) any previous
or subsequent agreement between DFS and Dealer; (c) any act committed
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by DFS or by any parent company, subsidiary or affiliated company of
DFS (the "DFS Companies"), or by any employee, agent, officer or
director of an DFS Company whether or not arising within the scope and
course of employment or other contractual representation of the DFS
Companies provided that such act arises under a relationship,
transaction or dealing between DFS and Dealer; and/or (d) any other
relationship, transaction or dealing between DFS and Dealer
(collectively the "Disputes"), will be subject to and resolved by
binding arbitration.
8.2 Administrative Body. All arbitration hereunder will be conducted in
accordance with the Commercial Arbitration Rules of The American
Arbitration Association ("AAA"). If the AAA is dissolved, disbanded or
becomes subject to any state or federal bankruptcy or insolvency
proceeding, the parties will remain subject to binding arbitration
which will be conducted by a mutually agreeable arbitral forum. The
parties agree that all arbitrator(s) selected will be attorneys with
at least five (5) years secured transactions experience. The
arbitrator(s) will decide if any inconsistency exists between the
rules of any 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
site of all arbitration proceedings will be in the Division of the
Federal Judicial District in which AAA maintains a regional office
that is closest to Dealer.
8.3 Discovery. Discovery permitted in any arbitration proceeding commenced
hereunder is limited as follows. No later than thirty (30) days after
the filing of a claim for arbitration, the parties 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 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.
8.4 Exemplary or Punitive Damages. The Arbitrator(s) will not have the
authority to award exemplary or punitive damages.
8.5 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 Agreement may be entered as a judgment or order in any state
or federal court and may be confirmed within the federal judicial
district which includes the residence of the party against whom such
award or order was entered. This Agreement 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.
8.6 Prejudgment and Provisional Remedies. Nothing herein will be construed
to prevent DFS' or Dealer's use of bankruptcy, receivership,
injunction, repossession, replevin, claim and delivery, sequestration,
seizure, attachment, foreclosure, liquidation 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 DFS' or Dealer's right to compel
arbitration of any Dispute
8.7 Attorneys' Fees. If either Dealer or DFS brings any other action for
judicial relief with respect to any Dispute (other than those set
forth in Section 8.6), 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 Dealer or
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DFS 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 Dealer sues DFS or
institutes any arbitration claim or counterclaim against DFS in which
DFS is the prevailing party, Dealer will pay all costs and expenses
(including attorneys' fees) incurred by DFS in the course of defending
such action or proceeding.
8.8 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 was received by the instituting party; 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.
8.9 Survival After Termination. The agreement to arbitrate will survive
the termination of this Agreement.
9. INVALIDITY/UNENFORCEABILITY OF BINDING ARBITRATION. IF THIS AGREEMENT 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. DEALER AND DFS WAIVE ANY RIGHT TO A JURY TRIAL IN ANY
SUCH PROCEEDING.
10. Governing Law. Dealer acknowledges and agrees that this and all Other
--------- ----
Agreements between Dealer and DFS have been substantially negotiated, and
will be substantially performed, in the state of Missouri. Accordingly,
Dealer agrees that 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 shall control and govern all
arbitration proceedings hereunder.
IN WITNESS WHEREOF, Dealer and DFS have executed this Agreement as of the
date first set forth hereinabove.
THIS CONTRACT CONTAINS BINDING ARBITRATION, JURY WAIVER AND PUNITIVE DAMAGE
WAIVER PROVISIONS.
DEUTSCHE FINANCIAL SERVICES ePlus Technology, inc.
CORPORATION
By: __________________________ By:______________________________
Print Name:___________________ Print Name:______________________
Title:________________________ Title: __________________________
By: _____________________________
Print Name: _____________________
Title: __________________________
ATTEST:
_________________________________
(Assistant Secretary)
Print Name: _____________________
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SECRETARY'S CERTIFICATE OF RESOLUTION
I certify that I am the Secretary of the corporation named below, and that
the following completely and accurately sets forth a resolution of the Board of
Directors of the corporation adopted by unanimous written consent 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.
"RESOLVED, That the below named officers of this corporation are hereby
authorized and empowered on behalf of this corporation: to obtain financing from
Deutsche Financial Services Corporation ("DFS") in such amounts and on such
terms as they deem proper; to enter into and execute the financing, security,
pledge and other agreements with DFS relating to the terms upon which such
financing may be obtained and security and/or other credit support is to be
furnished by this corporation therefor; from time to time to supplement or amend
any such agreements; execute and deliver any and all assignments and schedules;
and from time to time to pledge, assign, mortgage, grant security interests, and
otherwise transfer, to DFS as collateral security for any obligations of this
corporation to DFS, whenever and however arising, any assets of this
corporation, whether now owned or hereafter acquired; the Board of Directors
hereby ratifying, approving and confirming that which said officers have done or
may do with respect to the foregoing."
I do further certify that following are the names and specimen signatures
of the officers of said corporation so empowered and authorized, namely:
President: Xxxxx Xxxx By: /s/_____________________________
(Print Name) (Signature
Controller: Xxxxxx Xxxxxx By: /s/_____________________________
(Print Name) (Signature)
IN WITNESS WHEREOF, I have executed and affixed the seal of the corporation
on the date stated below.
____________________________________
Dated: September___, 2000 Secretary
____________________________________
Corporate Name
(SEAL)
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