DEPOSIT ACCOUNT CONTROL AGREEMENT (With Future Notification)
This
DEPOSIT ACCOUNT CONTROL AGREEMENT (“Agreement”) is made and entered into as of
this 18 day of March, 2008 by
and among WACHOVIA BANK, NATIONAL ASSOCIATION as depositary bank (the “Bank”),
the Bank’s depositor customer, EN POINTE TECHNOLOGIES SALES, INC. a California
corporation (the “Company”),
and IBM CREDIT, LLC, a Delaware limited liability company (the “Secured
Party”).
Statement of
Facts
The Bank
acknowledges that, as of the date hereof, it maintains in the name of the
Company the deposit account(s) identified on Exhibit A attached hereto and
made a part hereof (each an “Account”
and, collectively, the “Accounts”).
One or more of the Accounts may be served by one or more lockboxes operated by
the Bank, which lockboxes (if any) also are listed on Exhibit A (each a “Lockbox”
and, collectively, the “Lockboxes”).
The Account(s) and any Lockbox(es) are governed by the terms and conditions of
the Company’s commercial deposit account agreement published by the Bank from
time to time and, with respect to any Lockbox, also may be governed by a lockbox
service description between the Bank and the Company (collectively, with all
applicable services descriptions and/or agreements, the “Deposit
Agreement”).
The
Company hereby confirms to the Bank that the Company has granted to the Secured
Party a security interest in the following (collectively, the “Account
Collateral”): (a) the Account(s), (b) the Lockbox(es) and (c) the Items
Collateral. The term “Items
Collateral” means, collectively, all checks, drafts, instruments, cash
and other items at any time received in any Lockbox or for deposit in any
Account (subject to specific Lockbox instructions in effect for processing
items), wire transfers of funds, automated clearing house (“ACH”)
entries, credits from merchant card transactions and other electronic funds
transfers or other funds deposited in, credited to, or held for deposit in or
credit to, any Account.
The
parties desire to enter into this Agreement in order to set forth their relative
rights and duties with respect to the Account Collateral. In consideration of
the mutual covenants herein as well as other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. Control of the
Accounts
(a) The
Statement of Facts is incorporated herein by reference. The Bank represents that
it is a “bank”. The Company and the Bank acknowledge that each Account is a
“deposit account”. Each party to this Agreement acknowledges that this Agreement
is an “authenticated” record and that the arrangements established under this
Agreement constitute “control” of each Account. Each of these terms is used in
this Agreement as defined in Article 9 of the Uniform Commercial Code as adopted
by the State of New York (the “New York
UCC”).
(b) The
Company represents and warrants to the Secured Party that Exhibit A contains a complete
and accurate list of all Accounts and Lockboxes maintained by the Company with
the Bank and subject to this Agreement. The Company covenants for the benefit of
the Secured Party that the Company shall not open or maintain any deposit
account with the Bank other than the
1
Account(s).
As between the Company and the Secured Party, the Company and the Secured Party
acknowledge that the Accounts constitute "Special Accounts" as such term is
defined in the Agreement for Inventory Financing dated March 18, 2008 by and among the Company and
the Secured Party. Nothing in this Agreement shall impose upon the Bank any duty
to monitor or assure the Company’s compliance with this Section 1(b) and the
Bank shall not have any liability with respect thereto or with respect to any
other matter referred to in this Section 1(b).
(c) The Bank
confirms that, as of the date of this Agreement, the Company and the Bank have
not entered into any agreement (other than the Deposit Agreement) with any
person pursuant to which the Bank is obligated to comply with instructions from
such person as to the disposition of funds in any Account or of Items
Collateral. During the term of this Agreement the Bank will not enter into any
agreement with any person other than the Secured Party pursuant to which the
Bank will be obligated to comply with instructions from such person as to the
disposition of funds in any Account or of Items Collateral.
(d) The
Company authorizes and directs the Bank to comply with all instructions given by
the Secured Party in accordance with this Agreement and permissible under the
Deposit Agreement, including directing the disposition of funds in any Account
or as to any other matter relating to any Account or other Account Collateral,
without further consent by the Company.
(e) The
Secured Party authorizes and instructs the Bank to (i) permit the Company to
have access to and disposition over the Account(s) and Account Collateral and to
otherwise deal with same as provided in the Deposit Agreement and (ii) act upon
the instructions that the Bank shall receive from the Company concerning the
Lockbox and the Account Collateral until the implementation by the Bank of the
written instruction from the Secured Party to the Bank substantially in the form
of Exhibit B attached
hereto and made a part hereof (the “Notice”)
in accordance with the provisions of Section 7 of this Agreement. The Secured
Party’s right to give instructions to the Bank regarding any Account Collateral
also shall include (but is not limited to) the right to give “stop payment
orders” to the Bank for any item presented to the Bank against any Account even
if it results in dishonor of the item presented against the
Account.
(f) Until
delivery of the Notice by the Secured Party in accordance with the provisions of
Section 7, the Secured Party shall not give any instruction to the Bank or
otherwise exercise control over the Account(s) and the Account Collateral and,
until the Bank shall receive and implement the Notice as provided in Section 7,
the Bank shall not (and shall not be required by the provisions of this
Agreement to) honor and follow any instruction the Bank may receive from the
Secured Party with regard to the Account(s) and the Account Collateral. Upon the
implementation of the Notice by the Bank, the Bank shall not permit any officer,
agent or other representative of the Company or its affiliates to direct the
disposition of funds in any Account, withdraw any amount from any Account or
otherwise exercise any authority or power with respect to any Lockbox, Account
or Account Collateral. Upon implementation of the Notice by the Bank, all
collected and available funds in any Account shall only be withdrawn or
transferred based on instructions given by the Secured Party in accordance with
this Agreement.
(g) Federal
Reserve Regulations and Operating Circulars, ACH or other clearing house rules
and other applicable law (including, without limitation, the Uniform Commercial
Code as adopted by the State in which the respective Account identified on Exhibit A is located
(hereinafter, the “Applicable
UCC”)) and the Deposit Agreement shall also apply to the Secured Party’s
exercise
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of
control over the Account(s) and the Account Collateral and to the performance of
services hereunder by the Bank. Each of the Company and the Secured Party
authorizes and instructs the Bank to supply the Company’s or the Secured Party’s
endorsement, as appropriate, to any Items Collateral that the Bank shall receive
for deposit to any Account.
2. Statements
and Other
Information If
so requested of the Bank by the Secured Party in writing, the Bank will send to
the Secured Party (in a manner consistent with the Bank’s standard practices) at
the Secured Party’s address specified in Section 7, copies of all Account
statements and communications (but not canceled checks) that the Bank is
required to send to the Company under the Deposit Agreement. The Bank also shall
provide to each of the Company and the Secured Party when requested (as a
service under this Agreement and/or the Deposit Agreement) copies of Account
statements and other deposit account information, including Account balances, by
telephone and by computer communication, to the extent practicable when
requested by the Company or by the Secured Party. The Company consents to the
Bank’s release of such Account information to the Secured Party. The Bank’s
liability for its failure to comply with this Section 2 shall not exceed its
cost of providing such information.
3. Setoff; Returned Items and
Charges
(a) The Bank
will not exercise any security interest (except for the security interest
provided in Section 4-210, “Security Interest of Collecting Bank in Items,
Accompanying Documents and Proceeds”, of the Applicable UCC), lien, right of
setoff, deduction, recoupment or banker’s lien or any other interest in or
against any Account or any other Account Collateral, and the Bank hereby
subordinates to the Secured Party any such security interest (except for such
security interest provided in such Section 4-210 of the Applicable UCC), lien or
right which the Bank may have against any Account or other Account Collateral.
Notwithstanding the preceding sentence, the Secured Party and the Company agree
that the Bank at all times (including following commencement of any bankruptcy
or insolvency proceeding by or against the Company) may set off and charge
against any Account (regardless of any agreement by the Company to compensate
the Bank by means of balances in the Account) all of the following as permitted
by the Deposit Agreement (collectively, the “Permitted
Debits”): (i) the face amount of each Returned Item (hereinafter
defined), (ii) usual and customary service charges and fees, (iii) account
maintenance fees, (iv) transfer fees, (v) out-of-pocket fees and expenses
(including attorneys’ reasonable fees) incurred by the Bank (including those in
connection with the negotiation, administration or enforcement of this
Agreement), and (vi) adjustments or corrections of posting or encoding errors;
whether any Permitted Debit shall have accrued or been incurred before or after
the date of this Agreement. “Returned
Item” means any (i) Items Collateral deposited into or credited to an
Account before or after the date of this Agreement and returned unpaid or
otherwise uncollected or subject to an adjustment entry, whether for
insufficient funds or any other reason, and without regard to the timeliness of
such return or adjustment or the occurrence or timeliness of any other party’s
notice of nonpayment or adjustment; (ii) Items Collateral subject to a claim
against the Bank for breach of transfer, presentment, encoding, retention or
other warranty under Federal Reserve Regulations or Operating Circulars, ACH or
other clearing house rules, or applicable law (including, without limitation,
Articles 3, 4 and 4A of the Applicable UCC); and (iii) demand for chargeback in
connection with a merchant card transaction.
(b) If (i)
the Bank were unable to set off or charge any Permitted Debit against any
Account because of insufficient funds in the Account, or (ii) the Bank in good
faith were to believe that
3
any legal
process or applicable law prohibited such setoff or charge against any Account,
or (iii) the Account were closed, then: (A) the Bank may charge such Permitted
Debits to and set off same against any other Account; and (B) if there were
insufficient funds in the Account(s) against which to charge or set off such
Permitted Debits, then the Bank shall demand (unless the Bank shall believe in
good faith that any legal process or applicable law prohibits such demand) that
the Company pay, and the Company shall pay, to the Bank promptly upon the
Company’s receipt of the Bank’s written demand therefor, the full amount of all
unpaid Permitted Debits.
(c) If
(i) there were insufficient funds in the Account(s) against which the Bank could
charge or set off Permitted Debits and the Company shall have failed to pay the
Bank the full amount of unpaid Permitted Debits as described in paragraph (b) of
this Section 3, and (ii) the Bank shall have received and implemented the Notice
as provided herein, then the Bank may demand that the Secured Party pay, and the
Secured Party shall pay, to the Bank within five (5) business days of the
Secured Party's receipt of the Bank's written demand therefor, the full amount
of unpaid Permitted Debits; provided, however, (A) as to unpaid Permitted Debits
that are service charges, fees or expenses, the Secured Party shall be required
to pay to the Bank only those service charges, fees or expenses attributable to
any Account that shall have been incurred in connection with any Account on or
after the date of this Agreement and on or before the date of termination of
this Agreement and (B) as to (I) any unpaid Permitted Debit that is a Returned
Item that shall have been returned to the Bank as un-collectible after implementation of the Notice by
the Bank, and (II) any service charges or fees described in clauses (ii),
(iii) and (iv) of Section 3(a), the obligation of the Secured Party to reimburse
the Bank for such Returned Item, service charge or fee shall be limited to the
aggregate amount of funds in the Account(s) that shall be withdrawn or
transferred from the Account(s) pursuant to the Secured Party’s instruction(s)
to the Bank as contemplated by this Agreement.
4. Exculpation of
Bank
(a) At all
times the Bank shall be entitled to rely upon any communication it receives from
the Secured Party or the Company in connection with this Agreement or that the
Bank shall believe in good faith to be a communication received from the Secured
Party or the Company in connection with this Agreement, and the Bank shall have
no obligation to investigate or verify the authenticity or correctness of any
such communication. The Bank shall have no liability to the Company or the
Secured Party for (i) honoring or following any instruction the Bank shall
receive from (or shall believe in good faith to be from) the Secured Party in
accordance with this Agreement, and (ii) honoring or following any instruction
the Bank shall receive from (or shall believe in good faith to be from) the
Company in accordance with this Agreement and the Deposit Agreement prior to the
implementation of the Notice by the Bank. The Bank shall not be responsible for
the validity, priority or enforceability of the Secured Party’s security
interest in any Account Collateral, nor shall the Bank be responsible for
enforcement of any agreement between the Company and the Secured
Party.
(b) The Bank
shall be responsible only for the actual loss that a court having jurisdiction
over the Account(s) shall have determined had been incurred by the Company or
the Secured Party and had been caused by the Bank’s gross negligence or willful
misconduct in its performance of its obligations under this Agreement. The Bank
shall have no liability to any party for failure of, or delay in, its
performance under this Agreement resulting from any “act of God”, war or
terrorism, fire, other catastrophe or force majeure, electrical or
computer or telecommunications failure, any
4
event
beyond the control of the Bank, or fraud committed by any third party. Nothing
in this Agreement shall create any agency, fiduciary, joint venture or
partnership relationship between the Bank and the Company or between the Bank
and the Secured Party. Except as shall be specifically required under this
Agreement or the Deposit Agreement or applicable law, the Bank shall have no
duty whatsoever to the Company in connection with the subject matter of this
Agreement. Except as shall be specifically required under this Agreement or
applicable law, the Bank shall have no duty whatsoever to the Secured Party in
connection with the subject matter of this Agreement.
5. Indemnification
(a) The
Company hereby indemnifies the Bank and holds it harmless against, and shall
reimburse the Bank for, any loss, damage or expense (including attorneys’
reasonable fees and expenses, court costs and other expenses) including, but not
limited to, (i) unpaid charges, fees, and Returned Items for which the Company
and/or the Secured Party originally received credit or remittance by the Bank,
and (ii) any loss, damage or expense the Bank shall incur as a result of (A)
entering into or acting pursuant to this Agreement, (B) honoring and following
any instruction the Bank may receive from (or shall believe in good faith to be
from) the Secured Party or the Company under this Agreement, and (C) upon
implementation of the Notice, not honoring or following any instruction it shall
receive from (or shall believe in good faith to be from) the Company in
accordance with this Agreement. The Company shall not be responsible for any
loss, damage, or expense that a court having jurisdiction shall have determined
had been caused by the Bank’s gross negligence or willful misconduct in its
performance of its obligations under this Agreement.
(b) Without
limiting in any way the Secured Party’s obligation to pay or reimburse the Bank
as otherwise specified in this Agreement, the Secured Party hereby indemnifies
the Bank and holds it harmless against any loss, damage or expense (including
attorneys’ reasonable fees and expenses, court costs and other expenses) which
the Bank shall incur as a result of honoring or following any instruction
(including the Notice) it shall receive from (or shall believe in good faith to
be from) the Secured Party under this Agreement. The Secured Party shall not be
responsible for any loss, damage, or expense that a court having jurisdiction
shall have determined had been caused by the Bank’s gross negligence or willful
misconduct in its performance of its obligations under this
Agreement.
(c) No party
hereto shall be liable to any other party under this Agreement for lost profits
or special, indirect, exemplary, consequential or punitive damages, even if such
party shall have been advised of the possibility of such
damages.
6. Third Party Claims;
Insolvency of Company
(a) In
the event that the Bank shall receive notice that any third party shall have
asserted an adverse claim by legal process against any Account or any sums on
deposit therein, any Lockbox or other Account Collateral, whether such claim
shall have arisen by tax lien, execution of judgment, statutory attachment,
garnishment, levy, claim of a trustee in bankruptcy, debtor-in-possession,
post-bankruptcy petition lender, court appointed receiver, or other judicial or
regulatory order or process (each, a “Claim”),
the Bank may, in addition to other remedies it possesses under the Deposit
Agreement, this Agreement or at law or in equity: (i) suspend
5
disbursements
from such Account without any liability until the Bank shall have received an
appropriate court order or other assurances reasonably acceptable to the Bank in
its sole discretion establishing that funds may continue to be disbursed
according to instructions then applicable to such Account, and/or (ii)
interplead such funds in such Account as permitted by applicable law. The Bank’s
costs, expenses and attorneys’ reasonable fees incurred in connection with any
such Claim are Permitted Debits and shall be reimbursed to the Bank in
accordance with the provisions of Section 3 above.
(b) If a
bankruptcy or insolvency proceeding were commenced by or against the Company,
the Bank shall be entitled, without any liability, to refuse to (i) permit
withdrawals or transfers from the Account(s) or (ii) accept or comply with the
Notice thereafter received by the Bank, until the Bank shall have received an
appropriate court order or other assurances reasonably acceptable to the Bank in
its sole discretion establishing that (A) continued withdrawals or transfers
from the Account(s) or honoring or following any instruction from either the
Company or the Secured Party are authorized and shall not violate any law,
regulation, or order of any court and (B) the Bank shall have received adequate
protection for its right to set off against or charge the Account(s) or
otherwise be reimbursed for all Permitted Debits.
7. Notice and
Communications
(a) All
communications given by any party to another as required or provided under this
Agreement must be in writing, directed to the respective designated officer
(“Designated
Officer”)
set forth under paragraph (c) of this Section 7, and delivered to each recipient
party at its address (or at such other address and to such other Designated
Officer as such party may designate in writing to the other parties in
accordance with this Section 7) either by U.S. Mail, receipted delivery service
or via telecopier facsimile transmission. All communications given by the
Secured Party to the Bank must be addressed and delivered contemporaneously to
both the Bank’s Designated Officer and the Bank’s “with copy
to” addressee at their respective addresses set forth
below.
(b) Any
communication (including the Notice) made by (or believed in good faith by the
Bank to be made by) the Company or the Secured Party to the Bank under this
Agreement shall be deemed delivered to the Bank if delivered by: (i) U.S. Mail,
on the date that such communication shall have been delivered to the Bank’s
Designated Officer; (ii) receipted delivery service, on the date and time that
such communication shall have been delivered to the Bank’s Designated Officer
and receipted by the delivery service; or (iii) telecopier facsimile
transmission, on the date and at the time that such communication shall have
been delivered to the Bank’s Designated Officer and receipt of such delivery
shall have been acknowledged by the recipient telecopier equipment.
Notwithstanding the provisions of the preceding sentence, any communication
hereunder to the Bank that is an instruction (including the Notice) delivered to
the Bank and made by (or believed by the Bank in good faith to be made by) the
Company or the Secured Party shall be deemed received by the Bank when actually
delivered to the Bank’s Designated Officer if delivered before 2:00 PM Eastern
time on a banking day or, if such communication were delivered after 2:00 PM
Eastern time on a banking day or delivered on a day that is not a banking day,
then such communication shall be deemed delivered to the Bank’s Designated
Officer at the Bank’s opening of its business on the next succeeding banking
day. A “banking
day” means any day other than any Saturday or Sunday or other day on
which the Bank is authorized or required by law to close.
6
(c) The
Notice shall be implemented by the Bank by the close of the Bank’s business on
the banking day that shall be one (1) banking day after the banking day on which
the Notice was actually received by the Bank’s Designated Officer. Any other
instruction delivered to the Bank shall be implemented by the Bank by the close
of the Bank’s business on the banking day that shall be two (2) banking days
after the banking day on which such instruction was actually received by the
Bank’s Designated Officer.
| Address for Secured Party: | IBM Credit , LLC | ||
| ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| Attn: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, Credit Manager, Designated | |||
| Officer | |||
| Fax: ▇▇▇.▇▇▇.▇▇▇▇ | |||
| Address for Bank: | Wachovia Bank, National Association | ||
| Mail Code NC 0817 | |||
| ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ – Floor M7 | |||
| ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| Attn: TS Legal Risk Management, Designated Officer | |||
| Fax: (▇▇▇) ▇▇▇-▇▇▇▇ | |||
|
with
copy to:
|
Wachovia Bank, National Association | ||
| Mail Code CA6233 | |||
| ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President, Designated | |||
| Officer | |||
| Fax: ▇▇▇.▇▇▇.▇▇▇▇ | |||
| Address for Company: | En Pointe Technologies Sales, Inc. | ||
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ | |||
| Attn.: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇, CFO, Designated Officer | |||
| Fax: ▇▇▇.▇▇▇.▇▇▇▇ | |||
8.
Termination
(a) This
Agreement may be terminated by the Secured Party at any time upon receipt by the
Bank of the Secured Party’s written notice of termination issued substantially
in the form of Exhibit C
attached hereto and made a part hereof. This Agreement may be terminated
by the Company only with the express prior written consent of the Secured Party
and, in that case, the Secured Party and the Company shall jointly so notify the
Bank in writing.
(b) This
Agreement may be terminated by the Bank at any time on not less than thirty (30)
calendar days’ prior written notice given to each of the Company and the Secured
Party. The Bank shall not be liable for the closure of any Lockbox or any
Account by the Company or the remittance of any funds therein directly to, or on
the instructions of, the Company prior to the implementation of the Notice by
the Bank. The Company shall notify the Secured
Party
7
immediately
of the Company’s closure of any Lockbox or any Account.
(c) The
Bank’s rights to demand and receive reimbursement from the Company under Section
3 above and the Company’s indemnification of the Bank under Section 5 above
shall survive termination of this Agreement. The Bank’s right to demand
reimbursement from the Secured Party under Section 3 above shall survive
termination of this Agreement for a period of forty-five (45) calendar days
after the date of termination of this Agreement. The Bank’s right to demand
indemnification of the Bank from the Secured Party under Section 5 above shall
survive termination of this Agreement for a period of one hundred twenty (120)
calendar days after the date of termination of this
Agreement.
(d) Upon
termination of this Agreement, all funds thereafter on deposit or deposited in
the Accounts and all Items Collateral thereafter received by the Bank shall be
subject solely to the provisions of the Deposit Agreement between the Company
and the Bank.
9. Miscellaneous
(a) The
Company shall not assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of the Bank and the Secured Party.
The Secured Party shall not assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of the Bank. The Bank
shall not assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of the Secured Party and the
Company, except that the Bank may transfer its rights and obligations under this
Agreement to any direct or indirect depositary subsidiary of Wachovia
Corporation or, in the event of a merger or acquisition of the Bank, to the
Bank’s successor depositary institution (which subsidiary or successor shall be
a “bank” as defined in Section 9-102 of the New York UCC).
(b) The law
governing the perfection and priority of the Secured Party’s security interest
in the Account Collateral shall be the law of the State of New York, which State
shall also be the “jurisdiction” of the Bank within the meaning of Section 9-304
of the New York UCC. The Accounts, Items Collateral, operation of the Accounts,
and Deposit Agreement shall be governed by the Applicable UCC, Federal
Regulations and Operating Circulars, ACH or other clearing house rules, and
other applicable laws.
(c) This
Agreement may be executed in any number of counterparts, each of which shall be
an original and all of which taken together shall constitute one and the same
Agreement. Delivery of an executed signature page counterpart to this Agreement
via telecopier facsimile transmission shall be effective as if it were delivery
of a manually delivered, original, executed counterpart thereof. This Agreement
can be modified or amended only by written agreement of all of the parties
hereto evidencing such modification or amendment.
(d) To the
extent that any conflict may exist between the provisions of any other agreement
between the Company and the Bank and the provisions of this Agreement, then this
Agreement shall control. It is understood and agreed that nothing in this
Agreement shall give the Secured Party any benefit or legal or equitable right,
remedy or claim against the Bank under the Deposit Agreement.
(e) Each of
the Secured Party and the Bank respectively agrees that it shall not cite or
refer to this Agreement as a precedent in any negotiation of any other Deposit
Account Control
8
Agreement
to which the Secured Party or any of its affiliates and the Bank shall be
party.
[THE
REMAINING SPACE ON THIS PAGE IS LEFT BLANK INTENTIONALLY.]
9
10. Waiver of
Jury
Trial EXCEPT
AS PROHIBITED BY APPLICABLE LAW, EACH
PARTY HERETO IRREVOCABLY WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING (INCLUDING ANY COUNTERCLAIM) OF ANY TYPE IN WHICH ANOTHER PARTY SHALL
BE A PARTY AS TO ALL MATTERS ARISING DIRECTLY OR INDIRECTLY OUT OF THIS
AGREEMENT.
IN WITNESS WHEREOF, each of
the parties by its respective duly authorized officer has executed and delivered
this Agreement as of the day and year first written above.
BANK: WACHOVIA
BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title: VP
COMPANY EN
POINTE TECHNOLOGIES SALES, INC.
By: /s/ ▇▇▇▇▇
▇▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇▇
Title: CFO
SECURED PARTY: IBM
CREDIT, LLC
By: /s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Title: Regional Credit
Officer
10
Agreement
to which the Secured Party or any of its affiliates and the Bank shall be
party.
THIS
PAGE IS INTENTIALLY LEFT BLANK
11
EXHIBIT
A ACCOUNTS OF COMPANY
|
Account
Number
|
Related
Lockbox Number, if any
|
Account
Name
|
State
in Which Account is Located
|
|
2000036320448
|
N/A
|
En
Pointe Technologies Sales, Inc.
|
California
|
12
EXHIBIT
B
[To
be Issued on Letterhead of Secured Party]
200_
WACHOVIA
BANK, NATIONAL ASSOCIATION
Mail Code
NC 0817
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ – Floor M7
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
TS Legal Risk Management, Designated Officer
Ladies
and Gentlemen:
Pursuant
to the Deposit Account Control Agreement (With Future Notification) among EN
POINTE TECHNOLOGIES SALES, INC. (the “Company”) you and us dated as of March __,
2008 (the “Agreement”), a photocopy of which is attached hereto, this letter
shall serve as the Notice as described in and contemplated by the Agreement.
Capitalized terms used but not defined in this letter shall have the meanings
given them in the Agreement.
You are
hereby instructed not to permit any access to or disposition over the Account(s)
or other Account Collateral by, and not to accept any instruction with regard to
the Account(s) or other Account Collateral from, any person other than the
Secured Party (or as otherwise provided in Section 6 of the
Agreement).
None of
the officers, agents or other representatives of the Company or any of its
affiliates shall at any time hereafter be permitted to direct the disposition of
funds in any Account, or to draw upon or otherwise exercise any authority or
power with respect to any Lockbox, Account or Account Collateral related
thereto.
Very truly
yours,
IBM CREDIT,
LLC
By: ______________________
Name: ____________________
Title: _____________________
Attachment
cc: The
Company
13
EXHIBIT C
[To
be Issued on Letterhead of Secured Party]
__________ 200_
WACHOVIA
BANK, NATIONAL ASSOCIATION
Mail Code
NC 0817
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ – Floor M7
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
TS Legal Risk Management, Designated Officer
EN POINTE
TECHNOLOGIES SALES, INC.
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn.:
▇▇. ▇▇▇▇▇ ▇▇▇▇▇, CFO, Designated Officer
Ladies
and Gentlemen:
We refer you
to the Deposit Account Control Agreement (With Future Notification) among EN
POINTE TECHNOLOGIES SALES, INC. (the “Company”), you and us dated as of March
__, 2008 (the “Agreement”), a photocopy of which is attached hereto. Capitalized
terms used but not defined in this letter shall have the meanings given them in
the Agreement.
We hereby
notify you that by this letter we are exercising our right under Section 8(a) of
the Agreement (subject to your rights as set forth in the Agreement) to
terminate the Agreement in accordance with its terms. Accordingly the
Agreement shall terminate at the close of the Bank’s
business [this day]
[on _____________________________, 200_], subject to those
undertakings that shall survive
termination of the Agreement. Upon termination of the Agreement, all funds
thereafter on deposit or deposited in the Account(s) and all Items Collateral
received by the Bank shall be subject solely to the provisions of the Deposit
Agreement between the Company and the Bank.
Very truly
yours,
IBM CREDIT,
LLC
By ________________________
Name: _____________________
Title: ______________________
Attachment
14