NeoMedia Technologies, Inc.
Exhibit 10.47
Agreement for Wholesale Financing (Security Agreement) Between IBM
Credit Corporation and NeoMedia Technologies, Inc. Dated February 20, 1997
IBM CREDIT CORPORATION Xxxxxxxx, XX 00000
AGREEMENT FOR WHOLESALE FINANCING
(SECURITY AGREEMENT)
TO: IBM CREDIT CORPORATION DATE: 2/20, 1997
In the course of our business, we acquire inventory and want you to finance
our purchase of such inventory under the following terms and conditions:
1. You may in your sole discretion from time to time decide the amount of
credit you extend to us, notwithstanding any prior course of conduct between us.
You may combine all of your advances to make one debt owed by us.
2. You may in your sole discretion decide the amount of funds, if any, you
will advance on any inventory we may seek to acquire. We agree that any decision
to advance funds on any inventory will not be binding on you until such time as
the funds are actually advanced.
3. All financing provided by you to us will be used exclusively for the
acquisition of inventory for which you have approved us to receive financing
pursuant to the terms of this Agreement (the "Approved Inventory"). From time to
time, you will identify such trademarks and tradenames to us in writing. When
you advance funds, you may send us a Statement of Transaction or other statement
if you choose. If you do, we will have acknowledged the debt to be an account
stated and we will have agreed to the terms of the financing programs identified
on such statement, unless we notify you in writing of any question or objection
within seven (7) days after it is mailed to us.
4. To secure payment of all of our current and future debts to you whether
under this Agreement, any guaranty that we now or hereafter execute, or any
other agreement between us, whether direct or contingent, we grant you a
security interest in all of our inventory, equipment, fixtures, accounts,
contract rights, chattel paper, instruments, reserves, documents of title,
deposit accounts and general intangibles, whether now owned or hereafter
acquired, and all attachments, accessories, accessions, substitutions and/or
replacements thereto and all proceeds thereof. All of the above assets are
defined pursuant to the provisions of Article 9 of the Uniform Commercial Code
and are hereinafter collectively referred to as the "Goods". This security
interest is also granted to secure our debts to all of your affiliates. We will
hold all of the Goods financed by you, and the proceeds thereof, in trust for
you and we will immediately account for and remit directly to you all such
proceeds when payment is required under the terms of our financing program with
you. You may directly collect any amount owed to us with respect to the Goods
and credit us with all sums received by you. Your title, lien or security
interest will not be impaired by any payments we make to the seller or anyone
else or by our failure or refusal to account to you for proceeds.
5.Our principal place of business Is located at: __________________________
0000 Xxxxxx Xx., Xxx. 000 Xx. Xxxxx XX 00000
________________________________________________________________________________
(Number and Street) (City, County, State, Zip Code)
and we represent that our business is conducted as a [ ] SOLE PROPRIETORSHIP,
[ ] PARTNERSHIP, [XX] CORPORATION (check applicable term). We will notify you
immediately of any change in our identity, name, form of ownership or
management, and of any change in our principal place of business, or any
additions or discontinuances of other business locations. The Goods will be
kept at our principal place of business. We will immediately notify you if any
of the Goods are kept at any other address. We and our predecessors have done
business during the last six (6) months only under the following names:
________________________________________________________________________________
This paragraph is for informational purposes only, and is not in any manner
intended to limit the extent of your security interest in the Goods.
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6. We promise that the Goods are and will remain free from all claims and
liens superior to yours unless otherwise agreed to by you, and that we will
defend the Goods against all other claims and demands. We will not rent, lease,
lend, demonstrate, pledge, transfer or secrete any of the Goods or use any of
the Goods for any purpose other than exhibition and sale to buyers in the
ordinary course of business, without your prior written consent. We will execute
all documents you may request to confirm or perfect your security interest in
the Goods. We warrant and represent that we are not in default in the payment of
any principal, interest or other charges relating to any indebtedness owed to
any third party, and no event has occurred under the terms of any agreement,
document, promissory note or other instrument, which with or without the passage
of time and/or the giving of notice constitutes or would constitute an event of
default thereunder. We will promptly provide our year-end financial statement to
you after our fiscal year ends and, it requested by you, we will also promptly
provide our financial statement to you after each calendar quarter. Each
financial statement that we submit to you, is and will be correct and will
accurately represent our financial condition. We further acknowledge your
reliance on the truthfulness and accuracy of each financial statement that we
submit to you in your extension of various financial accommodations to us.
7. We will pay all taxes, license fees, assessments and charges on the
Goods when due. We will immediately notify you of any loss, theft, or
destruction of or damage to any of the Goods. We will be responsible for any
loss, theft or destruction of Goods. We will keep the Goods insured for their
full insurable value against loss or damage under an "all risk" insurance
policy. We will obtain insurance under such terms and in amounts as you may
specify, from time to time, with companies acceptable to you, with a loss-payee
or mortgagee clause payable to you to the extent of any loss to the Goods and
containing a waiver of all defenses against us that is acceptable to you. We
agree to provide you with written evidence of the required insurance coverage
and loss-payee or mortgagee clause. We assign to you all amounts owed to us
under any insurance policy, and we direct any insurance company to make payment
directly to you to be applied to the unpaid debt owed you. We further grant you
an irrevocable power of attorney to endorse any checks or drafts and sign and
file all of the necessary papers, forms and documents to initiate and settle
any insurance claims with respect to the Goods. If we fail to pay any of the
above-referenced costs, charges, or insurance premiums, or if we fail to insure
the Goods, you may pay such costs, charges and insurance premiums, and the
amounts paid will be considered an additional debt owed by us to you.
8. You have the right to enter upon our premises from time to time, as you
in your sole discretion may determine for your sole benefit, and all without any
advance notice to us, to: examine the Goods; appraise them as security; verify
their condition and non-use; verify that all Goods have been properly accounted
for; verify that we have complied with all terms and provisions of this
Agreement; and assess, examine, and make copies of our books and records. Any
collection by you of any amounts we owe under our financing programs with you at
or during your examination of the Goods does not relieve us of our continuing
obligation to pay our indebtedness owed to you in accordance with the terms of
such financing programs.
9. We agree to immediately pay you the full amount of the principal balance
owed you on each item of inventory financed by you at the time such inventory is
sold, lost, stolen, destroyed, or damaged, whichever occurs first, unless you
have agreed in writing to provide financing to us on other terms. We also agree
to provide you, upon your request, an inventory report which describes all the
Approved Inventory in our possession (excluding any inventory financed by you
under the Demonstration and Training Equipment Financing Option and the Rental
Equipment Financing Option). Regardless of the terms of any scheduled payment
financing program with you, if you determine, after conducting an inspection of
all of our inventory, that the current outstanding indebtedness owed by us to
you exceeds the aggregate wholesale invoice price of the Approved Inventory in
our possession, we agree to immediately pay to you an amount equal to the
difference between such outstanding indebtedness and the aggregate wholesale
invoice price of such inventory. We will make all payments to you at your
appropriate branch office. Any checks or other instruments delivered to you to
be applied against our outstanding obligations will constitute conditional
payment until the funds represented by such instruments are actually received by
you. You may apply payments to reduce finance charges first and then principal,
irrespective of our instructions. Further, you may apply principal payments to
the oldest (earliest) invoice for the inventory financed by you, but, in any
case, all principal payments will first be applied to such inventory which is
sold, lost, stolen, destroyed, damaged, or otherwise disposed of. If we sign any
instrument for the amount of credit extended, it will be evidence of our
obligation to pay and will not be payment. Any discount, rebate, bonus, or
credit for the inventory granted to us by any third party will not, in any way,
reduce the debt we owe you, until you have received payment in cash.
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l0. During each year or part of a year in which you have extended credit to
us, we will pay you finance charges an the total amount of credit extended to us
in the amount agreed to between us from time to time. The period, during which
any third party provides a finance charge subsidy for us, will be included in
the calculation of the annual percentage rate of the finance charges. Such
finance charges may be applied by you to cover any amounts expanded for your:
appraisal and examination at the Goods; maintenance of facilities for payment;
assistance in support of our retail sales; your commitments to manufacturers or
distributors to finance shipments of Goods to us; recording and filing fees;
expenses incurred in obtaining additional collateral or security; and any costs
and expenses incurred by you arising out of the financing you extend to us. We
also agree to pay you additional charges which will include: late payment fees;
flat charges; charges for receiving NSF checks from us; renewal charges; and any
other charges applicable to our financing program with you. Unless we hereafter
otherwise agree in writing, the finance charge and additional charges agreed
upon will be your applicable finance charge and additional charges for the class
of Goods involved, prevailing from time to time at your principal place of
business. You will send us, at monthly or other intervals, a statement of all
charges due on our account with you. We will have acknowledged the charges due,
as indicated on the statement, to be an account stated, unless we object in
writing to you within seven (7) days after it is mailed to us. This statement
may be adjusted by you at any time to conform to applicable law and this
Agreement. If any manufacturer or distributor fails to provide a finance charge
subsidy for us, as agreed, we will be responsible for and pay to you all
finance charges billed to our account.
11. Any of the following events will constitute a default by us under this
Agreement: we breach any of the terms, warranties or representations contained
in this Agreement or in any other agreements between us or between us and any of
your affiliates; any guarantor of our indebtedness to you under this Agreement
or any other agreements breaches any of the terms, warranties or representations
contained in any guaranty or other agreements between any guarantor and you; any
representation, statement, report or certificate made or delivered by us or any
of our representatives, employees or agents or by any guarantor to you is not
true and correct; we fail to pay any of the liabilities or indebtedness owed to
you or any of your affiliates when due and payable under this Agreement or under
any other agreements between us or between us and any of your affiliates; you
determine that you are insecure with respect to any of the Goods or the payment
of our debt owed to you; we abandon the Goods or any part thereof; we or any
guarantor become in default in the payment of any indebtedness owed to any third
party; a judgement issues on any money demand against us or any guarantor; an
attachment, sale or seizure is issued against us or any of the Goods; any part
of the Goods are seized or taken in execution; the death of the undersigned if
the business is operated as a sole proprietorship or partnership, or the death
of any guarantor; we cease or suspend our business; we or any guarantor make a
general assignment for the benefit of creditors; we or any guarantor become
insolvent or voluntarily or involuntarily become subject to the Federal
Bankruptcy Code, state insolvency laws or any act for the benefit of creditors;
any receiver is appointed for any of our or any guarantor's assets, or any
guaranty pertaining to our indebtedness to you is terminated for any reason
whatsoever; we lose any franchise, permission, license or right to sell or deal
in any Goods which you finance; we or any guarantor misrepresent our respective
financial condition or organizational structure; or you determine, in your
sole discretion, that the Goods, any other collateral given to you to secure our
indebtedness to you, or our or any guarantor's net worth has decreased in value,
and we have been unable, within the time period prescribed by you, to either
provide you with additional collateral in a form and substance satisfactory to
you or reduce our total indebtedness by an amount sufficient to satisfy you.
In the event of a default:
(a) You may, at any time at your election, without notice or demand to
us do any one or more of the following: declare all or any part of the
indebtedness we owe you immediately due and payable, together with all
court costs and all costs and expenses of your repossession and
collection activity, including, but not limited to, all attorney's fees;
exercise any or all rights of a secured party under applicable law;
and/or cease making any further financial accommodations or extending
any additional credit to us. All of your rights and remedies are
cumulative.
(b) We will segregate, hold and keep the goods in trust, in good order
and repair, only for your benefit, and we will not exhibit, transfer,
sell, further encumber, otherwise dispose of or use for any other
purpose whatsoever any of the goods.
(c) Upon your oral or written demand, we will immediately deliver the
Goods to you, in good order and repair, at a place specified by you,
together with all related documents; or you may, in your sole discretion
and without notice or demand to us, take immediate possession of the
Goods, together with all related documents.
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(d) We waive and release: any claims and causes of action which we may
now or ever have against you as a direct or indirect result of any
possession, repossession, collection or sale by you of any of the Goods
and the benefit of all valuation, appraisal and exemption laws. If you
seek to take possession of any of the Goods by court process, we
irrevocably waive any notice, bonds, surety and security relating
thereto required by any statute, court rule or otherwise.
(e) We appoint you or any person you may delegate as our duly authorized
Attorney-In-Fact to do, in your sole discretion, any of the following:
endorse our name on any notes, checks, drafts or other forms of exchange
received as payment on any Goods for deposit in your account; sell,
assign, transfer, negotiate, demand, collect, receive, settle, extend or
renew any amounts due on any of the Goods; and exercise rights we have
in the Goods.
If we bring any action or assert any claim against you which arises out of this
Agreement, any other agreement or any of our business dealings, in which we do
not prevail, we agree to pay you all costs and expenses of your defense of such
action or claim including, but not limited to, all attorney's fees. If you fail
to exercise any of your rights or remedies under this Agreement, such failure
will in no way or manner waive any of your rights or remedies as to any past,
current or future default.
12. We agree that it you conduct a private sale of any Goods by soliciting
bids from ten (10) or more other dealers or distributors in the type of Goods
repossessed by or returned to you hereunder, any sale by you of such property in
bulk or in parcels within 120 days of (a) your taking physical possession and
control of such Goods or (b) when you are otherwise authorized to sell such
Goods, whichever occurs last, to the bidder submitting the highest cash bid
therefor, will be deemed to be a commercially reasonable means of disposing of
the same. We agree that commercially reasonable notice of any public or private
sale will be deemed given to us if you send us a notice of sale at least seven
(7) days prior to the date of any public sale or the time after which a private
sale will be made. If you dispose of any such Goods other than as herein
contemplated, the commercial reasonableness of such sale will be determined in
accordance with the provisions of the Uniform Commercial Code as adopted by the
state whose laws govern this Agreement.
We agree that you do not warrant the Goods. We will pay you in full even if the
Goods are defective or fail to conform to any warranties extended by any third
party. Our obligations to you will not be affected by any dispute we may have
with any third party. We will not assert against you any claim or defense we may
have against any third party. We will indemnify and hold you harmless against
any claims or defenses asserted by any buyer of the Goods by reason of: the
condition at any Goods; any representations made about the Goods, or for any
and all other reasons whatsoever.
13. We grant to you a power of attorney authorizing any of your
representatives to: execute or endorse on our behalf any documents, financing
statements and instruments evidencing our obligations to you; supply any omitted
information and correct errors in any documents or other instruments executed by
or for us; do any and every act which we are obligated to perform under this
Agreement; and do any other things necessary to preserve and protect the Goods
and your rights and security interest in the Goods. We further authorize you to
provide to any third party any credit, financial or other information on us that
is in your possession.
14. Time is of the essence in this Agreement. This Agreement will be
effective from the date of its acceptance at your branch office. We acknowledge
receipt of a true copy and waive notice of your acceptance of it. If you commit
to advance funds under this Agreement, you will have accepted it. This Agreement
will remain in force until one of us gives notice to the other that it is
terminated. If we terminate this Agreement, you may declare all or any part of
the indebtedness we owe you due and payable immediately. If this Agreement is
terminated, we will not be relieved from any obligation to you arising out of
your advances or commitments made before the effective date of termination. Your
rights under this Agreement and your security interest in present and future
Goods will remain valid and enforceable until all our debts to you are paid in
full. We agree that we cannot assign this Agreement without your prior written
consent. This Agreement will protect and bind your and our respective heirs,
representatives, successors and assigns. It can be varied only by a document
signed by your and our authorized representatives. If any provision of this
Agreement or its application is invalid or unenforceable, the remainder of this
Agreement will not be impaired or affected and will remain binding and
enforceable. It we are a corporation, this Agreement is executed with the
authority of our Board of Directors, and with shareholder approval, if required
by the law. All notices you send to us will be sufficiently given if mailed or
delivered to us at our address shown in paragraph 5.
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15. The laws of the State of Illinois will govern this Agreement. We agree
that venue for any lawsuit will be in the State or Federal Court within the
county, parish, or district where your branch office, who provides the financial
accommodations, is located. We hereby waive any right to change the venue of any
action brought against us by you.
16. If we have previously executed any security agreements relating to the
Goods with you, we agree that this Agreement is intended only to amend and
supplement such written agreements, and will not be deemed to be a novation or
termination of such written agreements. In the event the terms of this Agreement
conflict with the terms of any prior security agreement that we previously
executed with you, the terms of this Agreement will control in determining the
agreement between us.
17. We waive all exemptions and homestead laws to the maximum extent
permitted by law. We waive any statutory right to notice or hearing prior to
your attachment, repossession or seizure of the Goods. We further waive any and
all rights of set-off we may have against you. We agree that any proceeding in
which we, or you or any of your affiliates, or our assigns are parties, as to
all matters and things arising directly or indirectly out of this Agreement, or
the relations among the parties listed in this paragraph will be tried in a
court of competent jurisdiction by a judge without a jury. We hereby waive any
right to a jury trial in any such proceeding.
ATTEST: /s/ XXXXXXX X. XXXXX Neomedia Technologies, Inc.
----------------------------- -----------------------------
Secretary Customer
Print Name: Xxxxxxx X. Xxxxx By: /s/ XXXXXXX X. XXXXXX
------------------ -------------------------
Print Name: Xxxxxxx X. Xxxxxx
-----------------
(CORPORATE SEAL)
Title: CFO & VP
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SECRETARY'S CERTIFICATION OF RESOLUTION
I certify that I am the Secretary and the official custodian of certain
records, including the certificate of incorporation, charter, by-laws and
minutes of the meeting of the Board of Directors of the corporation named below,
and that the following is a true, accurate and compared extract from the minutes
of the Board of Directors of the corporation adopted at a special meeting
thereof held on due notice, at which meeting there was present a quorum
authorized to transact the business described below, and that the proceedings of
the meeting were in accordance with the cerificate of incorporation, charter and
by-laws of the corporation, and that they have not been revoked, annulled or
amended in any manner whatsoever.
Upon motion duly made and seconded, the following resolution was
unanimously adopted after full discussion; "RESOLVED, That the several officers,
directors and agents of this corporation, or any one or more of them, are hereby
authorized and empowered on behalf of this corporation: to obtain financing from
IBM Credit Corporation ("IBM Credit") in such amounts and on such terms as such
officers, directors or agents deem proper; to enter into security and other
agreements with IBM Credit relating to the terms upon which financing may be
obtained and security to be furnished by this corporation therefor; from time to
time to supplement or amend any such agreements; and from time to time to
pledge, assign, guaranty, mortgage, grant security interest in and, otherwise
transfer to IBM Credit as collateral security for any obligations of this
corporation to IBM Credit and its affiliated companies, whenever and however
arising, any assets of this corporation, whether now owned or hereafter
acquired; hereby ratifying, approving and confirming all that any of said
officers, directors or agents have done or may do in the premises."
IN WITNESS WHEREOF, I have executed and affixed the seal of the
corporation on the date stated below.
Dated: 2/20, 1997 /s/ Xxxxxxx X. Xxxxx
---------------------------
Secretary
Neomedia Technologies, Inc.
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Corporate Name
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