EXHIBIT 10.67
COLLATERALIZED GUARANTY
1.
In
consideration of credit and financing accommodations granted or to
be granted by IBM
Credit LLC with
an office located at 4111Northside Parkway, Atlanta, GA 30327 ("IBM
Credit") to En
Pointe
Technologies Sales, Inc. ("Customer"), which is in the best
interest of En
Pointe Technologies, Inc. ("Guarantor"),
and for other good and valuable consideration received, Guarantor
jointly and severally guaranties
to IBM Credit, from property held separately, jointly or in
community, the prompt and unconditional performance
and payment by Customer of any and all obligations, liabilities,
contracts, mortgages, notes, trust receipts,
secured transactions, inventory financing and security agreements,
and commercial paper on which Customer
is in any manner obligated, heretofore, now, or hereafter owned,
contracted or acquired by IBM Credit
("Liabilities"), whether the Liabilities are individual, joint,
several, primary, secondary, direct, contingent or
otherwise. Guarantor also agrees to indemnify IBM Credit and hold
IBM Credit harmless against any losses it
may sustain and expenses it may incur, suffer or be liable for as a
result of or in any way arising out of, following,
or consequential to any transactions with or for the benefit of
Customer.
2. Guarantor
represents and covenants that its name as stated above is the
exact name of Guarantor as set forth
in its charter or other organizational record. Guarantor
represents that it is duly organized under the laws
of
the State of Delaware and the organization document creating
Guarantor has been filed in the appropriate office
of such State. Guarantor's organization identification number
assigned by its State of organization is 2589668 .
Guarantor represents that its principal place of business is
located at:
18701
S. Figueroa Street, Gardena, CA 90248-4506. Guarantor
represents that its business is conducted as a
corporation.
Guarantor will not change its name, location (as defined in
Article 9 of the U.C.C.) or State of organization
without providing IBM Credit at least 30 days prior written
notice of any such change . Guarantor will
provide IBM Credit at least thirty (30) days prior written
notice of any change in Guarantor's chief executive
office or principal place of business. The Collateral (as
defined below) shall be kept at Guarantor's principal
place of business and at the following addresses:
various branches
throughout
Guarantor
will notify IBM Credit if any Collateral is moved to any other
address. Guarantor and Guarantor's predecessors have done
business during the last six (6) months only under the
following names:
This
paragraph is not in any manner intended to limit the extent of
IBM Credit's security interest in the Collateral.
3.
If
Customer fails to pay or perform any Liabilities to IBM Credit when
due, all Liabilities to IBM Credit shall then be deemed to have
become immediately due and payable, and Guarantor shall then pay
upon demand the full amount of all sums owed to IBM Credit by
Customer, together with all expenses, including reasonable
attorney's fees.
4.
The
liability of Guarantor is direct and unconditional and shall not be
affected by any extension, renewal or other change in the terms of
payment of any security agreement or any other agreement between
IBM Credit and Customer, or any change in the manner, place or
terms of payment or performance thereof, or the release, settlement
or compromise of or with any party liable for the payment or
performance thereof, or the waiver of any default or event of
default under any financing agreement between IBM Credit and
Customer, or the release or non-perfection of any security
thereunder, any change in Customer's financial condition, or the
interruption of business relations between IBM Credit and Customer.
This Guaranty is and shall be deemed to be a continuing guaranty
and shall remain in full force and effect until the indefeasible
payment in full of the Liabilities and any other amounts payable
under this Guaranty and the cessation of all obligations of IBM
Credit to extend credit to Customer. Guarantor acknowledges that
its obligations hereunder are in addition to and independent of any
agreement or transaction between IBM Credit and Customer or any
other person creating or reserving any lien, encumbrance or
security interest in any property of Customer or any other person
as security for any obligation of Customer. IBM Credit need not
exhaust its rights or recourse
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against
Customer or any other person or any security IBM Credit may
have at any time before being entitled to payment from
Guarantor.
5.
To
secure payment of all of Guarantor's current and future debts and
obligations to IBM Credit, whether under this Guaranty or any other
agreement between IBM Credit and Guarantor, whether direct or
contingent, Guarantor does assign, pledge and give to IBM Credit a
security interest in all of Guarantor's personal property, whether
now owned or hereafter acquired or existing and wherever located,
including the following: all goods, including inventory and
equipment, and all parts thereof, attachments, accessories and
accessions thereto, products thereof and documents therefor; all
accounts, chattel paper, instruments, negotiable documents,
promissory notes, general intangibles (including contract rights,
software and licenses), deposit accounts, commercial tort claims,
intellectual property, investment property, pledged notes, letter
of credit rights, supporting obligations, obligations of any kind
owing to Guarantor, whether or not arising out of or in connection
with the sale or lease of goods or the rendering of services and
all books, invoices, documents and other records in any form
evidencing or relating to any of the foregoing; all substitutions
and replacements for all of the foregoing, and all products or
proceeds of all of the foregoing (all of the above assets are
defined pursuant to the provisions of Article 9 of the Uniform
Commercial Code as in effect in the State of New York and are
hereinafter referred to as the "Collateral").
6.
IBM
Credit shall have the right, but not the obligation, from time to
time, as IBM Credit in its sole discretion may determine, and with
advance notice to Guarantor, to no more than 3 times per year,: (a)
examine the Collateral; (b) appraise it as security; (c) verify its
condition and nonuse; (d) verify that all Collateral has been
properly accounted for and this Agreement complied with, and (e)
assess, examine, check and make copies of any and all of
Guarantor's books, records and files relating only to International
Business Machines Corporation and/or IBM Global
Services.
7.
If
Guarantor does not comply with any of the terms of this Agreement,
or Guarantor fails to fulfill any obligation to IBM Credit or any
of IBM Credit's affiliates under any other agreement between IBM
Credit and Guarantor or between Guarantor and any of IBM Credit's
affiliates, or Guarantor becomes insolvent or ceases to do business
as a going concern, or a bankruptcy, insolvency proceeding,
arrangement or reorganization is filed by or against Guarantor, or
any of Guarantor's property is attached or seized, or a receiver is
appointed for Guarantor, or Guarantor commits any act which impairs
the prospect of full performance or satisfaction of Guarantor's
obligations to IBM Credit, or Guarantor shall lose any franchise,
permission, license or right to conduct its business, or Guarantor
misrepresents its financial condition or organizational structure,
or whenever IBM Credit deems the debt or Collateral to be
insecure:
(a)
IBM
Credit may call all or any part of the amount Guarantor or Customer
owes IBM Credit or IBM Credit's affiliates due and payable
immediately, if permitted by applicable law, together with court
costs and all costs and expenses of IBM Credit's repossession and
collection activity, including, but not limited to reasonable
attorney's fees.
(b)
Guarantor
will hold and keep the Collateral in trust, in good order and
repair, for IBM Credit's benefit and shall not exhibit or sell
it.
(c)
Upon
IBM Credit's demand, Guarantor will immediately deliver the
Collateral to IBM Credit, in good order and repair, at a place
reasonably convenient to IBM Credit, together with all related
documents; or IBM Credit may, in IBM Credit's sole discretion and
without demand, take immediate possession of the Collateral,
together with all related documents.
(d)
Guarantor
waives and releases: (i) any and all claims and causes of action
which Guarantor may now or ever have against IBM Credit as a result
of any possession, repossession, collection or sale by IBM Credit
of any of the Collateral, notwithstanding the effect of such
possession, repossession, collection or sale upon Guarantor's
business; (ii) all rights of redemption from any such sale; and
(iii) the benefit of all valuation, appraisal and exemption laws.
If IBM Credit seeks to take possession of any of the Collateral by
replevin or other court process, Guarantor does not waive any
notice, bonds, surety and security relating thereto required by any
statute, court rule or otherwise
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as
an incident to such possession and any demand for possession
of the Collateral prior to the commencement of any suit or
action to recover possession thereof.
(e)
Guarantor
appoints IBM Credit or any person IBM Credit may delegate as its
duly authorized Attorney-in-Fact (without notifying Guarantor) to
do, in IBM Credit's sole discretion, any of the following: (i)
sell, assign, transfer, negotiate or pledge any and all accounts,
chattel paper, or contract rights; (ii) endorse Guarantor's name on
any and all notes, checks, drafts, or other forms of exchange
received as payment on any accounts, chattel paper and contract
rights, for deposit in IBM Credit's account; (iii) grant any
extension, rebate or renew
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