IBM Credit Corporation
AGREEMENT FOR WHOLESALE FINANCING
(SECURITY AGREEMENT)
This Agreement for Wholesale Financing - Security Agreement (as amended,
supplemented or otherwise modified from time to time, this "Agreement") dated
August 25, 2000 is by and between IBM Credit Corporation, a Delaware
corporation, with a place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("IBM Credit"), and PWR Systems, Inc., a Delaware corporation, ("Customer") with
a place of business located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇.
In the course of Customer's business, Customer acquires products and wants IBM
Credit to finance Customer's purchase of such products under the following terms
and conditions:
1. IBM Credit may in its sole discretion from time to time decide the
amount of credit IBM Credit extends to Customer, notwithstanding any
prior course of conduct between IBM Credit and Customer. IBM Credit
may combine all of its advances to make one debt owed by Customer.
2. IBM Credit may in its sole discretion decide the amount of funds, if
any, IBM Credit will advance on any products Customer may seek to
acquire. Customer agrees that any decision to finance products will
not be binding on IBM Credit until such time as the funds are actually
advanced by IBM Credit.
3. In the course of Customer's operations, Customer intends to purchase
from persons approved in writing by IBM Credit for the purpose of this
Agreement (the "Authorized Suppliers") computer hardware and software
products manufactured or distributed by or bearing any trademark or
trade name of such Authorized Suppliers (the "Approved Inventory").
When IBM Credit advances funds, IBM Credit may send Customer a
Statement of Transaction or other statement. If IBM Credit does,
Customer will have acknowledged the debt to be an account stated and
Customer will have agreed to the terms set fort on such statement
unless Customer notifies IBM Credit In writing of any question or
objection within seven (7) days after such statement is mailed to
Customer.
4. To secure payment of all of Customer's current and future obligations
to IBM Credit whether under this Agreement, any guaranty that Customer
now or hereafter executes, or any other agreement between Customer and
IBM Credit, whether direct or contingent, Customer grants IBM Credit a
security interest in all of Customer's 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 "Collateral". This
security interest is also granted to secure Customer's obligations to
all of IBM Credit's affiliates. Customer will hold all of the
Collateral financed by IBM Credit, and the proceeds thereof, in trust
for IBM Credit and Customer will immediately account for and remit
directly to IBM Credit all such proceeds when payment is required
under the terms set forth in the billing statement or as otherwise
provided in this Agreement. IBM Credit may directly collect any amount
owed to Customer from Authorized Suppliers with respect to the
Collateral and credit Customer with all such sums received by IBM
Credit from Authorized Suppliers. IBM Credit's title, lien or security
interest will not be impaired by any payments Customer makes to the
seller or anyone else or by Customer's failure or refusal to account
to IBM Credit for proceeds.
5. Customer's principal place of business is located at:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(Number and Street) (City, County, State, Zip Code)
and Customer represents that its business is conducted as a ____ SOLE
PROPRIETORSHIP, ___ PARTNERSHIP, X CORPORATION, ___ LIMITED LIABILITY COMPANY
(check applicable term). Customer will notify IBM Credit, in writing, prior to
any change in Customer's identity, name, form of ownership or management, and of
any change in Customer's principal place of business, or any additions or
discontinuances of other business locations. The Collateral will be kept at
Customer's principal place of business. Customer will notify IBM Credit, in
writing, thirty (30) days prior to moving any of the Collateral to any other
address. Customer and Customer's predecessors have done business during the last
six (6) months only under the following names:
PC Workstations Rentals, Inc. d/b/a Vizy Interactive - PWR Systems
PWR Acquisition Corporation .
This paragraph is not in any manner intended to limit the extent of IBM
Credit's security interest in the Collateral.
6. Customer represents and covenants that the Collateral is and will
remain free from all claims and liens superior to IBM Credit's unless
otherwise agreed to by IBM Credit in writing, and that Customer will
defend the Collateral against all other claims and demands. Customer
will not sell, rent, lease, lend, demonstrate, pledge, transfer or
secrete any of the Collateral or use any of the Collateral for any
purpose other than exhibition and sale to buyers in the ordinary
course of business, without IBM Credit's prior written consent.
Customer will execute all documents IBM Credit may request to confirm
or perfect IBM Credit's security interest in the Collateral. Customer
warrants and represents that Customer is 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, as of
the effective date of this Agreement or as of the date of any request
by Customer to IBM Credit for financing in the future, 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.
Customer will promptly provide its year-end financial statement, in
form and detail satisfactory to IBM Credit, to IBM Credit within
ninety (90) days after Customer's fiscal year ends and, if requested
by IBM Credit, Customer will also promptly provide Customer's
financial statement to IBM Credit after each fiscal quarter within
forty five (45) days. Customer represents and covenants that each
financial statement that Customer submits to IBM Credit will be
prepared according to generally accepted accounting principles in
effect in the United States from time to time, and is and will be
correct and will accurately represent Customer's financial condition.
Customer further acknowledges IBM Credit's reliance on the
truthfulness and accuracy of each financial statement that Customer
submits to IBM Credit in IBM Credit's extension of various financial
accommodations to Customer.
7. Customer will pay all taxes, license fees, assessments and charges on
the Collateral when due. Customer will immediately notify IBM Credit
of any loss, theft or destruction of or damage to any of the
Collateral. Customer will be responsible for any loss, theft or
destruction or damage of Collateral. Customer will keep the Collateral
insured for its full insurable value against loss or damage under an
"all risk" insurance policy. Customer will obtain insurance under such
terms and in such amounts acceptable to IBM Credit, from time to time,
with companies acceptable to IBM Credit, with a lender loss-payee or
mortgagee clause payable to IBM Credit to the extent of any loss to
the Collateral and containing a waiver of all defenses against
Customer that is acceptable to IBM Credit. Customer agrees to provide
waiver of all defenses against Customer that is acceptable to IBM
Credit. Customer agrees to provide IBM Credit with written evidence of
the required insurance coverage and lender loss-payee or mortgagee
clause. Customer assigns to IBM Credit all amounts owed to Customer
under any insurance policy, and Customer directs any insurance company
to make payment directly to IBM Credit to be applied to the unpaid
obligations owed IBM Credit. Customer further grants IBM Credit an
irrevocable power of attorney to endorse any checks or drafts and sign
and file any of the papers, forms and documents required to initiate
and settle any insurance claims with respect to the Collateral. If
Customer fails to pay any of the above-referenced costs, charges, or
insurance premiums, or if Customer fails to insure the Collateral, IBM
Credit may, but will not be obligated to, pay such costs, charges and
insurance premiums, and then amounts paid will be considered an
additional obligation owed by Customer to IBM Credit.
8. IBM Credit has the right to enter upon Customer's premises from time
to time, as IBM Credit in its sole discretion may determine for IBM
Credit's sole benefit, and all without any advance notice to Customer,
to: examine the Collateral; appraise it as security; verify its
condition and non-use; verify that all Collateral have been properly
accounted for; verify that Customer has complied with all terms and
provisions of this Agreement; and assess, examine, and make copies of
Customer's books and records. Any collection by IBM Credit of any
amounts Customer owes at or during IBM Credit's examination of the
Collateral does not relieve Customer of its continuing obligation to
pay Customer's obligations owed to IBM Credit in accordance with such
terms.
9. Customer agrees to immediately pay IBM Credit the full amount of the
principal balance owed IBM Credit on each item of Approved Inventory
financed by IBM Credit at the time such Approved Inventory is sold,
lost, stolen, destroyed, or damaged, whichever occurs first, unless
IBM Credit has agreed in writing to provide financing to Customer on
other items. Customer also agrees to provide IBM Credit, upon IBM
Credit's request, an inventory report which describes all the Approved
Inventory in Customer's possession (excluding any Approved Inventory
financed by IBM Credit under the Demonstration and Training Equipment
Financing Option). Regardless of the repayment terms set forth in any
billing statement, if IBM Credit determines, after conducting an
inspection of all of Customer's inventory, that the current
outstanding obligations owed by Customer to IBM Credit exceeds the
aggregate wholesale invoice price, net of all applicable price
reduction credits, of the Approved Inventory in Customer's possession
that is new and in manufacturer sealed boxes and in which IBM Credit
has a perfected first priority security interest, Customer agrees to
immediately pay IBM Credit an amount equal to the difference between
such outstanding obligations and the aggregate wholesale invoice
price, net of all applicable price reduction credits, of such Approved
Inventory. Customer will make all payments to IBM Credit according to
the remit to instructions in the billing statement. Any checks or
other instruments delivered to IBM Credit to be applied against
Customer's outstanding obligations will constitute conditional payment
until the funds represented by such instruments are actually received
by IBM Credit. IBM Credit may apply payments to reduce finance charges
first and then principal, irrespective of Customer's instructions.
Further, IBM Credit may apply principal payments to the oldest
(earliest) invoice for the Approved Inventory financed by IBM Credit,
or to such Approved Inventory which is sold, lost, stolen, destroyed,
damaged, or otherwise disposed of. If Customer signs any instrument
for any outstanding obligations, it will be evidence of Customer's
obligation to pay and will not be payment. Any discount, rebate,
bonus, or credit for Approved Inventory granted to Customer by any
Authorized Supplier will not, in any way, reduce the obligations
Customer owes IBM Credit, until IBM Credit has received payment in
good funds.
10. Customer will pay IBM Credit finance charges on the total amount of
credit extended to Customer in the amount agreed to between Customer
and IBM Credit from time to time. The period of any financing will
begin on the invoice date for the Approved Inventory whether or not
IBM Credit advances payment on such date. This period will be included
in the calculation of the annual percentage rate of the finance
charges. Such finance charges may be applied by IBM Credit to cover
any amounts expended for IBM Credit's; appraisal and examination of
the Collateral; maintenance of facilities for payment; assistance in
support of Customer's retail sales; IBM Credit's commitments to
Authorized Suppliers to finance shipments of Approved Inventory to
Customer; recording and filing fees; expenses incurred in obtaining
additional collateral or security; and any costs and expenses incurred
by IBM Credit arising out of the financing IBM Credit extends to
Customer. Customer also agrees to pay IBM Credit additional charges
which will include: late payment fees at a per annum rate equal to the
Prime Rate plus 6.5%; flat charges; charges for receiving NSF checks
from Customer; renewal charges; and any other charges agreed to by
Customer and IBM Credit from time to time. For purposes of this
Agreement, "Prime Rate" will mean the average of the rates of interest
announced by banks which IBM Credit uses in its normal course of
business of determining prime rate. Unless Customer hereafter
otherwise agrees in writing, the finance charges and additional
charges agreed upon will be IBM Credit's applicable finance charges
and additional charges for the class of Approved Inventory involved
prevailing from time to time at IBM Credit's principal place of
business, but in no event greater than the highest rate from time to
time permitted by applicable law. If it is determined that amounts
received from Customer were in excess of such highest rate, then the
amount representing such excess will be considered reductions to the
outstanding principal of IBM Credit's advances to Customer. IBM Credit
will send Customer, at monthly or other intervals, a statement of all
charges due on Customer's account with IBM Credit. Customer will have
acknowledges the charges due, as indicated on the statement, to be an
account stated, unless Customer objects in writing to IBM Credit
within seven (7) days after such statement is mailed to Customer. This
statement may be adjusted by IBM Credit at any time to conform to
applicable law and this Agreement. IBM Credit shall calculate any free
financing period utilizing a methodology that is consistent with the
methodologies used for similarly situated customers of IBM Credit. The
customer understands that IBM Credit may not offer, may charge or may
cease to offer a free financing period for the Customer's purchases of
Approved Inventory. If any Authorized Supplier fails to provide
payment of a finance charge for Customer, as agreed, Customer will be
responsible for and pay to IBM Credit all finance charges billed to
Customer's account.
11. Any of the following events will constitute an event of default by
Customer under this Agreement: Customer breaches any of the terms,
warranties or representations contained in this Agreement or in any
other agreements between Customer and IBM Credit or between Customer
and any of IBM Credit's affiliates; any guarantor of Customer's
obligations to IBM Credit under this Agreement or any other agreements
breaches any of the terms, warranties or representations contained in
such guaranty or other agreements between such guarantor and IBM
Credit; any representation, statement, report or certificate made or
delivered by Customer or any of Customer's owners, representatives,
employees or agents or by any guarantor to IBM Credit is not true and
correct; Customer fails to pay any of the liabilities or obligations
owed to IBM Credit or any of IBM Credit's affiliates when due and
payable under this Agreement or under any other agreements between
Customer and IBM Credit or between Customer and any of IBM Credit's
affiliates; IBM Credit determines that IBM Credit is insecure with
respect to any of the Collateral or the payment of Customer's
obligations owed to IBM Credit; Customer abandons the Collateral or
any part thereof; Customer or any guarantor becomes in default in the
payment of any indebtedness owed to any third party in an amount
greater than $50,000.00; a judgment issues on any money demand against
Customer or any guarantor in an amount greater than $50,000.00; and an
attachment, sale or seizure is issued against Customer or any of the
Collateral; any part of the Collateral is seized or taken in
execution; the death of the undersigned if the business is operated as
a sole proprietorship, or the death of a partner if the business is
operated as a partnership, or the death of any guarantor; Customer
ceases or suspends Customer's business; Customer or any guarantor
makes a general assignment for the benefit of creditors; Customer or
any guarantor becomes insolvent or voluntarily or involuntarily
becomes subject to the Federal Bankruptcy Code, state insolvency laws
or any act for the benefit of creditors which is not dismissed within
60 days; any receiver is appointed for any of Customer's or any
guarantor's assets, or any guaranty pertaining to Customer's
obligations to IBM Credit is terminated for any reason whatsoever; any
guarantor disclaims any obligations under any guaranty; Customer loses
any franchise, permission, license or right to sell or deal in any
Approved Inventory; Customer or any guarantor misrepresents its
respective financial condition or organizational structure; or IBM
Credit determines, in its sole discretion, that the Collateral, any
other collateral given to IBM Credit to secure Customer's obligations
to IBM Credit, any guarantor's guaranty, or Customer's or any
guarantor's net worth has decreased in value, and Customer has been
unable, within the time period prescribed by IBM Credit, to either
provide IBM Credit with additional collateral in a form and substance
satisfactory to IBM Credit or reduce Customer's total obligations by
an amount sufficient to satisfy IBM Credit. Following an event of
default:
(a) IBM Credit may, at any time at IBM Credit's election, without
notice or demand to Customer do any one or more of the following:
declare all or part of the obligations Customer owes IBM Credit
immediately due and payable, together with all court costs and all
costs and expenses of IBM Credit's 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; cease
making any further financial accommodations or extending any
additional credit to Customer; and/or exercise any or all rights
available at law or in equity. All of IBM Credit's right and remedies
are cumulative.
(b) Customer will segregate, hold and keep the Collateral in trust, in
good order and repair, only for IBM Credit's benefit, and Customer
will not exhibit, transfer, sell, further encumber, otherwise dispose
of or use for any other purpose whatsoever any of the Collateral.
(c) Upon IBM Credit's oral or written demand, Customer will
immediately deliver the Collateral to IBM Credit, in good order and
repair, at a place specified by IBM Credit, together with all related
documents; or IBM Credit may, in its sole discretion and without
notice or demand to Customer, take immediate possession of the
Collateral, together with all related documents.
(d) Customer waives and releases: any claims and causes of action
which Customer may now or ever have against IBM Credit as a direct or
indirect result of any possession, repossession, collection or sale by
IBM Credit of any of the Collateral and the benefit of all valuation,
appraisal and exemption laws. If IBM Credit seeks to take possession
of any of the Collateral by court process, Customer irrevocably waives
any notice, bonds, surety and security relating thereto required by
any statute, court rule or otherwise.
(e) Customer appoints IBM Credit or any person IBM Credit may delegate
as Customer's duly authorized Attorney-In-Fact to do, in IBM Credit's
sole discretion, any of the following in the event of a default:
endorse Customer's name on any notes, checks, drafts or other forms of
exchange constituting Collateral or received as payment on Collateral
for deposit in IBM Credit's account; sell, assign, transfer,
negotiate, demand, collect, receive, settle, extend or renew any
amounts due on any of the Collateral; and exercise any rights Customer
has in the Collateral.
If Customer brings any action or asserts any claim against IBM Credit which
arises out of this Agreement, any other agreement or any of the business
dealings between IBM Credit and Customer, in which Customer does not prevail,
Customer agrees to pay IBM Credit all costs and expenses of IBM Credit's defense
of such action or claim including, but not limited to, all attorney's fees. If
IBM Credit fails to exercise any of IBM Credit's rights or remedies under this
Agreement, such failure will in no way or manner waive any of IBM Credit's
rights or remedies as to any past, current or future default.
12. Customer agrees that if IBM Credit conducts a private sale of any
Collateral by soliciting bids from ten (10) or more other dealers or
distributors in the type of Collateral repossessed by or returned to IBM
Credit hereunder, any sale by IBM Credit if such property will be deemed to
be a commercially reasonable disposition under the Uniform Commercial Code.
IBM Credit agrees that commercially reasonable notice of any public or
private sale will be deemed given to Customer if IBM Credit sends Customer
a notice of sale at least seven (7) business days prior to the date of any
public sale or the time after which a private sale will be made. If IBM
Credit disposes of any such Collateral 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.
Customer agrees that IBM Credit does not warrant the Approved Inventory.
Customer will pay IBM Credit in full even if the Approved Inventory is
defective or fails to conform to any warranties extended by any third
party. Customer's obligations to IBM Credit will not be affected by any
dispute Customer may have with any third party. Customer will not assert
against IBM Credit any claim or defense Customer may have against any third
party. Customer will indemnify and hold IBM Credit harmless against any
claims or defenses asserted by any buyer of the Approved Inventory by
reason of: the condition of any Approved Inventory; any representations
made about the Approved Inventory; or for any and all other reasons
whatsoever.
13. Customer grants to IBM Credit a power of attorney authorizing any of
IBM Credit's representatives to: execute or endorse on Customer's behalf
any documents, financing statements and instruments evidencing Customer's
obligations to IBM Credit; supply any omitted information and correct
errors in any documents or other instruments executed by or for Customer;
do any and every act which Customer is obligated to perform under this
Agreement; and do any other things necessary to preserve and protect the
Collateral and IBM Credit's security interest in the Collateral. Customer
further authorizes IBM Credit to provide to any third party any credit,
financial or other information about Customer that is in IBM Credit's
possession.
14. Each party may electronically transmit to or receive from the other
party certain documents specified in the E-Business Schedule A
attached hereto ("E-Documents") via the Internet or electronic data
interchange ("EDI"). Any transmission of data which is not an
E-Document shall have no force or effect between the parties. EDI
transmissions may be transmitted directly or through any third party
service provider ("Provider") with which either party may contract.
Each party will be liable for the acts or omissions of its Provider
while handling E-Documents for such party, provided, that if both
parties use the same Provider, the originating party will be liable
for the acts or omissions of such Provider as to such E-Document. Some
information to be made available to Customer will be specific to
Customer and will require Customer to register with IBM Credit before
access is provided. After IBM Credit has approved the registration
submitted by Customer, IBM Credit will provide an ID and password(s)
to an individual designated by Customer ("Customer Recipient").
Customer accepts responsibility for the designated individual's
distribution of the ID and password(s) within its organization and
Customer will take reasonable measures to ensure that passwords are
not shared or disclosed to unauthorized individuals. Customer will
conduct an annual review of all IDs and passwords to ensure that they
are accurate and properly authorized. UPON NOTICE TO CUSTOMER, IBM
CREDIT MAY CHANGE OR DISCONTINUE USE OF AN ID OR PASSWORDS AT ITS
DISCRETION AT ANY TIME. E-Documents will not be deemed to have been
properly received, and no E-Document will give rise to any obligation,
until accessible to the receiving party at such party's receipt
computer at the address specified herein. Upon proper receipt of an
E-Document, the receiving party will promptly transmit a functional
acknowledgment in return. A functional acknowledgment will constitute
conclusive evidence that an E-Document has been properly received. If
any transmitted E-Document is received in an unintelligible or garbled
form, the receiving party will promptly notify the originating party
in a reasonable manner. In the absence of such a notice, the
originating party's records of the contents of such E-Document will
control.
Each party will use those security procedures which are reasonably sufficient to
ensure that all transmissions of E-Documents are authorized and to protect its
business records and data from improper access. Any E-Document received pursuant
to this paragraph 14 will have the same effect as if the contents of the
E-Document had been sent in paper rather than electronic form. The conduct of
the parties pursuant to this paragraph 14 will, for all legal purposes, evidence
a course of dealing and a course of performance accepted by the parties. The
parties agree not to contest the validity or enforceability of E-Documents under
the provisions of any applicable law relating to whether certain agreements are
to be in writing or signed by the party to be bound thereby. The partied agree,
as to any E-Document accompanied by Customer's ID, that IBM Credit can
reasonably rely on the fact that such E-Document is properly authorized by
Customer. E-Documents, if introduced as evidence on paper in any judicial,
arbitration, mediation or administrative proceedings, will be admissible as
between the parties to the same extent and under the same conditions as other
business records originated and maintained in documentary form. Neither party
will contest the admissibility of copies of E-Documents under either the
business records exception to the hearsay rule or the best evidence rule on the
basis that the E-Documents were not originated or maintained in documentary
form.
Neither party will be liable to the other for any special, incidental, exemplary
or consequential damages arising from or as a result of any delay, omission or
error in the electronic transmission or receipt of any E-Document pursuant to
this paragraph 14, even if either party has been advised of the possibility of
such damages. In the event Customer requests IBM Credit to effect a withdrawl or
debit of funds from an account of Customer, then in no event will IBM Credit be
liable for any amount in excess of any amount incorrectly debited, except in the
event of IBM Credit's gross negligence or willful misconduct. No party will be
liable for any failure to perform its obligations pursuant to this paragraph 14
in connection with any E-Document, where such failure results from any act of
God or other cause beyond such party's control (including, without limitation,
any mechanical, electronic or communications failure) which prevents such party
from transmitting or receiving E-Documents.
CUSTOMER RECIPIENT for Internet transmissions:
Name of Customer's Designated Central Contact Authorized to Receive IDs and
Passwords:
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e-mail Address: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
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Phone Number: ▇▇▇-▇▇▇-▇▇▇▇
15. Time is of the essence in this Agreement. This Agreement will be
effective from the date of its acceptance at IBM Credit's office.
Customer acknowledges receipt of a true copy and waives notice of IBM
Credit's acceptance of it. If IBM Credit advances funds under this
Agreement, IBM Credit will have accepted it. This Agreement will
remain in full force until one of the parties gives notice to the
other that it is terminated, provided that such notice shall not be
less than 60 days prior to the effective date of termination.
Notwithstanding the foregoing, IBM Credit may give notice, effective
immediately, upon the occurrence and during the continuation of an
event of default. If Customer terminates this Agreement, IBM Credit
may declare all or any part of the obligations Customer owes IBM
Credit due and payable immediately. If this Agreement is terminated,
Customer will not be relieved from obligations to IBM Credit arising
out of IBM Credit's advances or commitments made before the effective
date of termination. IBM Credit's rights under this Agreement and IBM
Credit's security interest in present and future Collateral will
remain valid and enforceable until all Customer's obligations to IBM
Credit are paid in full. This Agreement shall be binding upon and
inure to the benefit of IBM Credit and the Customer and their
respective successors and assigns; provided, that the Customer shall
have no right to assign this Agreement without the prior written
consent of IBM Credit. This Agreement will protect and bind IBM
Credit's and Customer's respective heirs, representatives, successors
and assigns. It can be varied only by a document signed by IBM
Credit's and Customer's 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. This Agreement is executed with the
authority of Customer's Board of Directors, and with shareholder
approval, if required by law, if Customer is a corporation or if
Customer is a limited liability company, with the authority of
authorized members. All notices IBM Credit sends to Customer will be
sufficiently given if mailed or delivered to Customer at its address
shown in paragraph 5.
16. The laws of the State of New York will govern this Agreement, Customer
agrees that venue for any lawsuit will be in the State or Federal
Court within the county, parish or district where IBM Credit's office,
which provided the financial accommodations, is located. Customer
hereby waives any right to change the venue of any action,
17. If Customer has previously executed any security agreements relating
to the Collateral with IBM Credit, Customer agrees 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 Customer previously
executed with IBM Credit, the terms of this Agreement will control in
determining the agreement between Customer and IBM Credit.
18. CUSTOMER WAIVES ALL EXEMPTIONS AND HOMESTEAD LAWS TO THE MAXIMUM
EXTENT PERMITTED BY LAW. CUSTOMER WAIVES ANY STATUTORY RIGHT TO NOTICE
OR HEARING PRIOR TO IBM CREDIT'S ATTACHMENT, REPOSSESSION OR SEIZURE
OF THE COLLATERAL. CUSTOMER FURTHER WAIVES ANY AND ALL RIGHTS OF
SETOFF CUSTOMER MAY HAVE AGAINST IBM CREDIT. CUSTOMER AGREES THAT ANY
PROCEEDING IN WHICH CUSTOMER, OR IBM CREDIT OR ANY OF IBM CREDIT'S
AFFLIATES, OR CUSTOMER'S OR IBM CREDIT'S 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. EACH PARTY TO THIS AGREEMENT HEREBY WAIVES ANY RIGHT TO A JURY
TRIAL IN ANY SUCH PROCEEDING.
ATTEST:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ PWR Systems, Inc.
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Assistant Secretary Customer
Print Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
(CORPORATE SEAL) Title: President
E-BUSINESS SCHEDULE A ("SCHEDULE A")
CUSTOMER NAME: PWR Systems, Inc.
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EFFECTIVE DATE OF THIS SCHEDULE A: August 25, 2000
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E-DOCUMENTS AVAILABLE TO SUPPLIERS:
Invoices
Payment Report/Remittance Advisor
E-DOCUMENTS AVAILABLE TO CUSTOMER:
Invoices
Remittance Advisor
Transaction Approval
Billing Statement
Payment Planner
Auto Cash
Statements of Transaction
Common Dispute Form