AGREEMENT FOR WHOLESALE FINANCING
This Agreement for Wholesale Financing ("Agreement") is made as of ____________,
2001 between Deutsche Financial Services Corporation ("DFS") and ePlus
Technology of NC, inc., a |___| SOLE PROPRIETORSHIP, | | PARTNERSHIP, | x |
CORPORATION, | | LIMITED LIABILITY COMPANY (check applicable term) ("Dealer"),
having a principal place of business located at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
XX 00000.
1. Extension of Credit. Subject to the terms of this Agreement, DFS may extend
credit to Dealer from time to time to purchase inventory from DFS approved
vendors ("Vendors") and for other purposes. If DFS advances funds to Dealer
following Dealer's execution of this Agreement, DFS will be deemed to have
entered into this Agreement with Dealer, whether or not executed by DFS.
DFS' decision to advance funds will not be binding until the funds are
actually advanced. DFS may combine all of DFS' advances to Dealer or on
Dealer's behalf, whether under this Agreement or any other agreement, 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. DFS may, at any time without notice to Dealer, elect not to
finance any inventory sold by particular Vendors who are in default of
their obligations to DFS, or with respect to which DFS reasonably feels
insecure. This is an agreement regarding the extension of credit, and not
the provision of goods or services.
2. Financing Terms and Statements of Transaction. Dealer and DFS agree that
certain financial terms of any advance made by DFS under this Agreement,
whether regarding finance charges, other fees, maturities, curtailments or
other financial terms, are not set forth herein because such terms depend,
in part, upon the availability of Vendor discounts, payment terms or other
incentives, prevailing economic conditions, DFS' floorplanning volume with
Dealer and with Dealer's Vendors, and other economic factors which may vary
over time. Dealer and DFS further agree that it is therefore in their
mutual best interest to set forth in this Agreement only the general terms
of Dealer's financing arrangement with DFS. Upon agreeing to finance a
particular item of inventory for Dealer, DFS will send Dealer a Statement
of Transaction identifying such inventory and the applicable financial
terms. Unless Dealer notifies DFS in writing of any objection within twenty
(20) days after a Statement of Transaction is mailed to Dealer: (a) the
amount shown on such Statement of Transaction will be an account stated;
(b) Dealer will have agreed to all rates, charges and other terms shown on
such Statement of Transaction; (c) Dealer will have agreed that DFS is
financing the items of inventory referenced in such Statement of
Transaction at Dealer's request; and (d) such Statement of Transaction will
be incorporated herein by reference, will be made a part hereof as if
originally set forth herein, and will constitute an addendum hereto. If
Dealer objects to the terms of any Statement of Transaction, Dealer agrees
to pay DFS for such inventory in accordance with the most recent terms for
similar inventory to which Dealer has not objected (or, if there are no
prior terms, at the lesser of 16% per annum or at the maximum lawful
contract rate of interest permitted under applicable law), but Dealer
acknowledges that DFS may then elect to terminate Dealer's financing
program pursuant to Section 17, and cease making additional advances to
Dealer. However, such termination will not accelerate the maturities of
advances previously made, unless Dealer shall otherwise be in default of
this Agreement.
3. Grant of Security Interest. To secure payment of all of Dealer's current
and future debts to DFS, whether under this Agreement or any current or
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future guaranty or other agreement, 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. 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 Section 9.
4. Affirmative Warranties and Representations. Dealer warrants and represents
to DFS that: (a) Dealer has good title to all Collateral; (b) DFS' security
interest in the Collateral financed by DFS is not now and will not become
subordinate to the security interest, lien, encumbrance or claim of any
person; (c) Dealer will execute all documents DFS reasonably requests to
perfect and maintain DFS' security interest in the Collateral; (d) Dealer
will deliver to DFS immediately upon each request, and DFS may retain, each
Certificate of Title or Statement of Origin issued for Collateral financed
by DFS; (e) 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; (f)
Dealer has the right and is duly authorized to enter into this Agreement;
(g) Dealer's execution of this Agreement does not constitute a breach of
any agreement to which Dealer is now or hereafter becomes bound; (h) there
are 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; (i) Dealer will maintain the Collateral in good condition
and repair; (j) Dealer has duly filed and will duly file all tax returns
required by law; (k) Dealer has paid and will pay when due all taxes,
levies, assessments and governmental charges of any nature; (l) Dealer will
keep and maintain all of its books and records pertaining to the Collateral
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) all Collateral will
be kept at Dealer's principal place of business listed above, and such
other locations, if any, of which Dealer has notified DFS in writing or as
listed on any current or future Exhibit "A" attached hereto which written
notice(s) to DFS and Exhibit A(s) are incorporated herein by reference; (o)
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; (p) 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; (q) Dealer will advise
DFS of the commencement of material legal proceedings against Dealer or any
guarantor; and (r) 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.
5. Negative Covenants. Dealer will not at any time (without DFS' prior written
consent): (a) 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; (b) rent, lease, demonstrate, consign, or use any Collateral
financed by DFS; or (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 with DFS.
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6. Insurance. Dealer will immediately notify DFS of any material loss, theft
or damage to any Collateral. 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.
7. 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; and
(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
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.
8. Reviews. 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) examine and
copy Dealer's books and records related to the Collateral.
9. Payment Terms. Dealer will immediately pay DFS the principal indebtedness
owed DFS on each item of Collateral financed by DFS (as shown on the
Statement of Transaction identifying such Collateral) on the earliest
occurrence of any of the following events: (a) when such Collateral is
lost, stolen or damaged; (b) for Collateral financed under Pay-As-Sold
("PAS") terms (as shown on the Statement of Transaction identifying such
Collateral), when such Collateral is sold, transferred, rented, leased,
otherwise disposed of or matured; (c) in strict accordance with any
curtailment schedule for such Collateral (as shown on the Statement of
Transaction identifying such Collateral); (d) for Collateral financed under
Scheduled Payment Program ("SPP") terms (as shown on the Statement of
Transaction identifying such Collateral), in strict accordance with the
installment payment schedule; and (e) when otherwise required under the
terms of any financing program agreed to in writing by the parties.
Regardless of the SPP terms pertaining to any Collateral financed by DFS,
if DFS determines that the current outstanding debt which Dealer owes to
DFS exceeds the aggregate wholesale invoice price of such Collateral in
Dealer's possession, Dealer will immediately upon demand pay DFS the
difference between such outstanding debt and the aggregate wholesale
invoice price of such Collateral. If Dealer from time to time is required
to make immediate payment to DFS of any past due obligation discovered
during any Collateral review, or at any other time, Dealer agrees that
acceptance of such payment by DFS shall not be construed to have waived or
amended the terms of its financing program. The proceeds of any Collateral
received by Dealer will be held by Dealer in trust for DFS' benefit, for
application as provided in this Agreement. Dealer will send all payments to
DFS' branch office(s) responsible for Dealer's account. DFS may apply: (i)
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payments to reduce finance charges first and then principal, regardless of
Dealer's instructions; and (ii) principal payments to the oldest (earliest)
invoice for Collateral financed by DFS, but, in any event, all principal
payments will first be applied to such Collateral which is sold, lost,
stolen, damaged, rented, leased, or otherwise disposed of or unaccounted
for. Any third party discount, rebate, bonus or credit granted to Dealer
for any Collateral will not reduce the debt Dealer owes DFS until DFS has
received payment therefor in cash. Dealer will: (1) pay DFS even if any
Collateral is defective or fails to conform to any warranties extended by
any third party; (2) not assert against DFS any claim or defense Dealer has
against any third party; and (3) indemnify and hold DFS harmless against
all claims and defenses asserted by any buyer of the Collateral relating to
the condition of, or any representations regarding, any of the Collateral.
Dealer waives all rights of offset and counterclaims Dealer may have
against DFS.
10. Calculation of Charges. Dealer will pay finance charges to DFS on the
outstanding principal debt which Dealer owes DFS for each item of
Collateral financed by DFS at the rate(s) shown on the Statement of
Transaction identifying such Collateral, unless Dealer objects thereto as
provided in Section 2. The finance charges attributable to the rate shown
on the Statement of Transaction will: (a) be computed based on a 360 day
year; (b) be calculated by multiplying the Daily Charge (as defined below)
by the actual number of days in the applicable billing period; and (c)
accrue from the invoice date of the Collateral identified on such Statement
of Transaction until DFS receives full payment in good funds of the
principal debt Dealer owes DFS for each item of such Collateral in
accordance with DFS' payment recognition policy and DFS applies such
payment to Dealer's principal debt in accordance with the terms of this
Agreement. The "Daily Charge" is the product of the Daily Rate (as defined
below) multiplied by the Average Daily Balance (as defined below). The
"Daily Rate" is the quotient of the annual rate shown on the Statement of
Transaction divided by 360, or the monthly rate shown on the Statement of
Transaction divided by 30. The "Average Daily Balance" is the quotient of
(i) the sum of the outstanding principal debt owed DFS on each day of a
billing period for each item of Collateral identified on a Statement of
Transaction, divided by (ii) the actual number of days in such billing
period. Dealer will also pay DFS $100 for each check 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). The annual percentage rate of the finance charges relating to
any item of Collateral financed by DFS will be calculated from the invoice
date of such Collateral, regardless of any period during which any finance
charge subsidy shall be paid or payable by any third party. 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.
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11. Billing Statement. DFS will send Dealer a monthly billing statement
identifying all charges due on Dealer's account with DFS. The 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 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). DFS may adjust the billing statement at any
time to conform to applicable law and this Agreement.
12. Default. Dealer will be in default under this Agreement if: (a) Dealer
breaches any terms, warranties or representations contained herein, in any
Statement of Transaction to which Dealer has not objected as provided in
Section 2, or in any other agreement between DFS and Dealer (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 agreement between the guarantor and DFS
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 portion
of Dealer's debts to DFS when due and payable hereunder or under any other
agreement between DFS and Dealer 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 to a third party in excess of 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 excess of $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 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 debts to DFS
is terminated; (q) Dealer loses any franchise related 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 obligation to DFS. 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.
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13. Rights of DFS Upon Default. 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 part of the debt Dealer owes DFS 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.
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.
14. 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.
15. Power of Attorney. Dealer grants DFS an irrevocable power of attorney to:
execute or endorse on Dealer's behalf any checks, financing statements,
instruments, Certificates of Title and Statements of Origin pertaining to
the Collateral; supply any omitted information and correct errors in any
documents between DFS and Dealer; initiate and settle any insurance claim
pertaining to the Collateral; and do anything to preserve and protect the
Collateral and DFS' rights and interest therein.
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16. 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 Vendor any credit,
financial or other information regarding Dealer that such Vendor may from
time to time possess.
17. Termination. Either party may terminate this Agreement at any time by
written notice received by the other party. If DFS terminates this
Agreement, Dealer agrees that if Dealer: (a) is not in default hereunder,
sixty (60) days prior notice of termination is reasonable and sufficient
(although this provision shall not be construed to mean that shorter
periods may not, in particular circumstances, also be reasonable and
sufficient); or (b) is in default hereunder, no prior notice of termination
is required. Dealer will not be relieved from any obligation 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 debts to DFS. All
waivers set forth within this Agreement will survive any termination of
this Agreement.
18. Binding Effect. Dealer cannot assign its interest in this Agreement without
DFS' prior written consent, although DFS may assign or participate DFS'
interest, in whole or in part, without Dealer's consent. This Agreement
will protect and bind DFS' and Dealer's respective heirs, representatives,
successors and assigns.
19. 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.
20. 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, 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.
21. Other Waivers. Dealer irrevocably 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.
22. Severability. 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.
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23. 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 such previously executed agreement
nor shall execution of this Agreement be deemed a satisfaction of any
obligation secured by such previously executed agreement.
24. 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 this Agreement, any Statement of Transaction,
billing statement, invoice from a Vendor, 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 agreement between DFS and Dealer, and for all
evidentiary purposes before any arbitrator, court or other adjudicatory
authority.
25. Miscellaneous. 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. 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. 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. If Dealer fails to pay any taxes, fees or other obligations
which may impair DFS' interest in the Collateral, or fails to keep the
Collateral insured, DFS may, but shall not be required to, pay such taxes,
fees or obligations and pay the cost to insure the Collateral, and the
amounts paid will be: (a) an additional debt owed by Dealer to DFS, which
shall be subject to finance charges as provided herein; and (b) due and
payable immediately in full. Dealer agrees to pay all of DFS' reasonable
attorneys' fees and expenses incurred by DFS in enforcing DFS' rights
hereunder. The Section titles used in this Agreement are for convenience
only and do not define or limit the contents of any Section.
26. BINDING ARBITRATION.
26.1 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
and/or any amendments and addenda hereto, or the breach,
invalidity or termination hereof; (b) any previous or
subsequent agreement between DFS and Dealer; (c) any act
committed 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 a 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.
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26.2 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.
26.3 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.
26.4 Exemplary or Punitive Damages. The Arbitrator(s) will not
have the authority to award exemplary or punitive damages.
26.5 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.
26.6 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,
dation 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.
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26.7 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 26.6), 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 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.
26.8 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.
26.9 Survival After Termination. The agreement to arbitrate will
survive the termination of this Agreement.
26.10 Negotiation. Notwithstanding the foregoing, Dealer and DFS
shall attempt in good faith to resolve any Disputes promptly
by negotiations between Dealer and DFS prior to the filing
of an arbitration claim.
27. 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.
28. 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 CORPORATION ePlus Technology of NC, inc.
By: _________________________ By:_____________________________
Print Name:__________________ Xxxxxx X. Xxxxxxxxx, CFO
Title:_______________________
ATTEST:
_______________________________
Xxxxxxx X. Xxxxxxxxx, Secretary
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SECRETARY'S CERTIFICATE OF RESOLUTION
I certify that I am the Secretary or Assistant Secretary of the
corporation named below, and that the following completely and accurately sets
forth certain resolutions of the Board of Directors of the corporation adopted
at a special meeting thereof held on due notice (and with shareholder approval,
if required by law), 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 Deutsche Financial Services
Corporation ("DFS") in such amounts and on such terms as such officers,
directors or agents deem proper; to enter into 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; 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 all that any of said
officers, directors or agents have done or may do with respect to the
foregoing."
IN WITNESS WHEREOF, I have executed and affixed the seal of the
corporation on the date stated below.
Dated:_______________________, 2001.
------------------------------------
Xxxxxxx X. Xxxxxxxxx, Secretary
ePlus
Technology of NC, inc.
(SEAL)
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