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EXHIBIT 10.1
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
October 11, 2000, is by and between IBM Credit Corporation, a Delaware
corporation, with a place of business at 5000 Executive Parkway, Suite 450, San
Ramon, CA 94583 ("IBM Credit"), and Procom Technology, Inc. a California
corporation, ("Customer").
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 forth 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
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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: 58 Discovery,
Irvine, California, 92618. 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 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
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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 the 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 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
terms. 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 to 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
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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 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 acknowledged 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 change 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
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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; a judgment issues on any money demand against Customer
or any guarantor; 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; 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 a default, 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 any 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 rights and remedies
are cumulative. 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. 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. 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. Customer appoints IBM Credit or any person IBM Credit may
delegate as Customer's duly authorized to do, in IBM Credit's sole
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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 any 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 of 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) 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 Schedule A attached hereto via
the Internet or electronic data interchange. Any transmission of data
which is not a Document shall have no force or effect between the
parties. 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
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Provider while handling 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. 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. IBM CREDIT MAY CHANGE OR DISCONTINUE USE OF AN ID
OR PASSWORD AT ITS DISCRETION AT ANY TIME. Customer will not be deemed
to have been properly received, and will not 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 a Document, the receiving party will promptly transmit a functional
acknowledgment in return. A functional acknowledgment will constitute
conclusive evidence that a Document has been properly received. If any
transmitted 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 Document will control. Control.
EFFECTIVE DATE OF THIS SCHEDULE A: ____________________.
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 force until one of the parties gives notice to the other that it is
terminated. 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 any 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 the 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.
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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
provides the financial accommodations, is located. Customer hereby
waives any right to change the venue of any action.
17. 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
AFFILIATES, OR IBM CREDIT 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: Frank Alaghband PROCOM TECHNOLOGY, INC.
BY: /s/
Frederick Judd
Vice President Finance
