Exhibit 10.1
SECURITY AGREEMENT AND POWER OF ATTORNEY TO
XXXXXXX XXXXXXXXXX PARTNERSHIP ("PURCHASER"),
BY AMERICANA PUBLISHING, INC. ("SELLER")
This agreement ("Agreement") has been made on this day of , 2002, between
Xxxxxxx Xxxxxxxxxx Partnership (hereafter "Purchaser"), and Americana
Publishing, Inc. ("API" or "Seller") all INTENDING TO BE LEGALLY BOUND HEREBY.
NOW, THEREFORE, the parties, INTENDING TO BE LEGALLY BOUND HEREBY, agree as
follows:
1. PURCHASE OF ACCOUNTS
1. Purchase of Accounts. The Seller will offer to sell and assign to
Purchaser its open accounts receivable, book debts, notes, drafts, acceptances,
contracts, and chooses in action (hereinafter called accounts) arising in the
ordinary course of business of Seller, and Purchaser will purchase from Seller
such accounts as are acceptable to Purchaser. Purchaser will advance to Seller
at the time of the purchase of accounts a percentage of the face value thereof
in accordance with the table marked Schedule "B" attached hereto; and the
remainder, hereinafter called the holdback, (less any charges, discounts as
listed on Schedule "B" or deductions and plus any overpayment) will be paid to
Seller upon payment to Purchaser by the parties indebted on said accounts
(hereafter called debtors) and upon the terms and conditions of Schedules "A"
and "B" attached hereto. No such payments need be made by Purchaser in respect
of any accounts purchased or assigned hereunder, if Seller is in default in the
performance of any provisions of this agreement with respect to any accounts
whatsoever or if any single account assigned to Purchaser is outstanding for
more than 120 days. All of the purchases under this Agreement shall constitute a
single transaction.
2. Costs. Seller shall pay the cost of filing any financing statements or
other public records required, in Purchaser's discretion, to perfect a security
interest in the collateral (described below) offered by Seller as security for
the performance by Seller (and the debtors of the Seller) of Seller's
obligations hereunder. In addition, Purchaser shall deduct from the reserve paid
to Seller the charges and discounts shown on Schedule "B" attached hereto.
3. Seller's Representations. As an inducement to enter this Agreement and
as inducement for each future funding, and with the full knowledge that the
truth and accuracy of the warranties in this Agreement are being relied upon by
Purchaser instead of a complete credit investigation, the Seller represents,
warrants and covenants as follows: (a) contemporaneously with the purchase of
accounts pursuant to this Agreement, Seller will execute a schedule of accounts,
in a form approved by Purchaser, vesting in Purchaser all the Seller's right,
title and interest in and to said accounts, with any securities or guaranties
thereon, and in and to the property evidenced thereby, including the right of
stoppage in transit; (b) Seller will make proper entries upon its books,
disclosing the absolute sale of accounts to Purchaser; (c) every account will be
bona fide, will be a certain undisputed claim for the amount set forth in the
schedule of accounts, will represent a sale and delivery of personal property
sold and/or work or labor done by Seller, will not be subject to any dispute,
objection, setoff or counterclaim, and will not be contingent upon the
fulfillment of any contract or condition whatsoever, and Purchaser may verify
all such accounts or any portion thereof; (d) every debtor named in each account
will be solvent, and will remain so until the maturity thereof, and each account
will be paid in full on or before the date shown on its due date on the schedule
of accounts, and if not so paid Seller will upon demand promptly pay any amount
represented to be owing thereon to Purchaser; (e) if any debtor objects to the
quality or quantity of property sold or work and/or labor done by Seller, or
rejects, returns, or fails or refuses to accept or receive any property
represented by any account, or if any such property is rerouted or reconsigned,
then the Seller will forthwith pay to Purchaser the amount represented to be
owing on such account, and in the case of any property returned to Seller,
Seller will hold such property in trust for Purchaser and subject to its order,
until payment is made therefor by Seller to Purchaser; (f) if any allowance or
credit on any account is given by Seller, then Seller shall pay the amount
thereof immediately to Purchaser; (g) Seller, upon demand, will open all mail
only in the presence of a representative of Purchaser, who may take therefrom
any remittances on accounts sold to Seller; (h) Purchaser may indorse the name
of Seller upon any such remittances, if payable to Seller, and may sign and
indorse the name of Seller on any invoice, freight xxxx, xxxx of lading, storage
receipt, warehouse receipt, or any other instrument or document in respect of
any account, and may sign the name of Seller on any notices Purchaser may give
to debtors; (i) Purchaser may, from time to time, enter Seller's premises to
inspect, check, make copies of or extracts from the books, accounts, orders and
original correspondence relating to accounts, and Seller will made available its
books, records, and files to Purchaser at any time for such purposes; (j)
Purchaser may hold for purchase or as security any accounts, property,
securities, guaranties or monies of Seller which may at any time be assigned to,
be delivered to, or come into the possession of Purchaser, and may apply these
or the proceeds thereof to the payment of any amounts which at any time then or
thereafter are or might be owing to Purchaser by Seller; (k) Seller will not
sell, grant a security interest in, or assign any of its accounts elsewhere
without giving 30 days' written notice to Purchaser of its intention to do so;
(l) if any debtor suspends business, requests a general extension of time within
which to pay its debts, or makes an assignment for the benefit of creditors, or
if a petition in bankruptcy, or in equity for receivership, or for
reorganization under the Bankruptcy Act or any amendment thereof is filed by or
against any debtor, or a creditors' committee is named for any debtor, or in the
event of the occurrence of any act whatsoever amounting to a business failure by
any debtor, then in such event, Seller will immediately pay to Purchaser the
amount represented to be owing by such debtor on any account; (m) if Seller
fails to perform promptly or violates any of the promises or obligations herein
contained, then Seller shall pay Purchaser all attorney's fees, court costs, and
all other expenses which may be expended or incurred by Purchaser to obtain or
enforce payment of any account, either against the debtor, Seller, or any
guarantors, or expended or incurred in the prosecution of any action against
Seller or any guarantors concerning any matter growing out of or connected with
the subject matter of this Agreement and accounts purchased herein; (n) Seller
will execute and deliver to Purchaser any and all instruments or documents, and
do any and all things, necessary or convenient to carry into effect the
provisions of this Agreement, and to facilitate the collection of any accounts;
and (o) Purchaser shall have the right to notify the U.S. Postal Service
authorities to change the address for the delivery of mail addressed to Seller
to such address as Purchaser may designate; (p) Seller and guarantor shall
promptly report to Purchaser any change of address of their respective places of
business or residence, and failure to do so shall constitute a default under the
terms of this Agreement; (q) Seller's business is solvent; (r) Seller is, at the
time of purchase by Purchaser, the lawful owner of and has good and undisputed
title to the accounts purchased by Purchaser; (s) Seller does not own, control
or exercise dominion over, in any way whatsoever, the business of any
account/customer to be purchased by Purchaser; (t) all financial records,
statement, books or other documents shown to Purchaser by Seller at any time,
either before or after the signing of this Agreement are true and accurate; (u)
Seller will not, under any circumstances or in any manner whatsoever, interfere
with any of Purchaser's rights under this Agreement; (v) Seller will not factor
or sell accounts except to Purchaser for the period of this Agreement; (w)
Seller will not change or modify the terms of the original account with customer
unless Purchaser first consents to such change in writing. For example, Seller
may not extend credit to customer beyond thirty days without prior written
consent from Purchaser; (x) Seller will maintain such insurance covering
Seller's business and/or the property of Seller's customers as is customary for
businesses similar to the business of Seller and, at the request of Purchaser,
name Purchaser as loss payee of such insurance; (y) Seller will immediately
notify Purchaser of any proposed or actual change of Seller's name, location,
identity, legal entity or corporate structure; (z) all of the Collateral is
owned by Seller alone, free and clear of all liens, claims, security interest(s)
or encumbrances except those granted to Purchaser or those specifically
disclosed in writing to Purchaser and accepted by Purchaser in writing; (aa)
Seller has never previously billed for the goods or services contained in the
invoice(s) delivered to Purchaser for sale, and said invoice(s) are not
duplicative in any part; (ab) Seller and Guarantor have full power and authority
to enter this Agreement and Seller has authorized the sale of its accounts to
Purchaser; (ac) each account receivable is current and presently due to Seller
and is for the amount stated in Schedule "A"; (ad) in event of Seller's default
or breach of this Agreement, if Purchaser desires an audit (review of any or all
of Seller's financial records), Seller shall immediately pay Purchaser all
reasonable expenses incident to the audit, whether done by a Certified Public
Accountant or not; (ae) Seller has no outstanding tax liability to the United
States of America, any state or any local or other taxing authority; and (af)
upon execution by Seller of this Agreement and the filing of UCC-1 Financing
Statements, Purchaser will then and for the duration of this Agreement have a
valid and legally binding first lien on the Collateral of Seller.
All of the foregoing warranties and representations are material and
Purchaser is relying on said representations and warranties in entering into
this Security Agreement. Seller incorporates by reference, as though fully set
forth, all of the representations, warranties, terms, covenants and conditions
set forth in this Agreement in each subsequent sale of accounts, funding,
Schedule "A" or "B" or any other advance to Purchaser, whether expressly
contained in any document surrounding such event or not.
Seller agrees to notify Purchaser immediately if any representation or
warranty is or becomes untrue or inaccurate.
4. Indemnification: Seller and Guarantor shall indemnify Purchaser and hold
it harmless from and against any and all claims with respect to the accounts,
including, without limitation, claims of the account debtors, it being expressly
acknowledged by Seller that the transfer of title to the accounts to Purchaser
shall not constitute the assumption by Purchaser of any obligation with respect
to the products or services which are the subject of the accounts.
5. Customer Credit Approval. Seller shall submit to Purchaser the principal
terms of each of Seller's customers' orders for credit approval. Purchaser may
withdraw credit approval at any time before Seller delivers goods per contract
or renders the services per contract.
6. Collection of Accounts Receivable. Seller authorizes Purchaser to
collect accounts from the debtors of Seller. Seller agrees that it will transmit
and deliver to Purchaser at Philadelphia, Pennsylvania, on the dates of receipt
thereof, all original checks, notes, drafts, acceptances, or other evidences or
forms of payment received by Seller on payment of, or on account of, any
accounts sold to Purchaser, and Purchaser shall accept at par, subject to
payment, all such remittances. Purchaser may notify any debtor or debtors of the
assignment of accounts by Seller, and may collect such accounts directly from
any such debtor, and Seller does hereby constitute and appoint Purchaser its
attorney-in-fact irrevocably, for it and in its name, and at the cost and
expense of Seller, to demand, collect, compromise, xxx for, and institute and
complete any action or proceedings whatsoever for the collection of any monies
due upon any accounts.
7. Lien and Security Interest; Assignments of Receivable
(a) To secure the payment of its obligations to Purchaser, Seller
grants to Purchaser a continuing general lien and security interest in all
receivables and in all Seller's rights, title and interest in all accounts,
security agreements, notes, bills, acceptances, installment paper,
certificates of deposit, tax refunds, insurance proceeds, conditional sale
or lease contracts, chattel mortgages or deeds of trust, general
intangibles, and contract rights, and all other hypothecations, and
promises or duties to pay money, now or hereafter owned or acquired by
Seller, and all proceeds and collections thereof, all guaranties and other
security therefor, and all right, title, and interest of Seller in:
All accounts, contract rights, general intangibles, chattel paper,
instruments, equipment and inventory located at its facility at 000 Xxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxx Xxxxxx 00000, as these terms are defined in the
Pennsylvania Uniform Commercial Code, 13 Pa. C.S. Section 1101 et seq;, or
alternatively, by those statutes in any states where Debtor does business,
called the Uniform Commercial Code (hereinafter "UCC"), and any proceeds,
substitutions and replacements.
Without limiting the foregoing, collateral shall include:
All accounts, contract rights, general intangibles, chattel paper,
instruments, equipment and inventory, located at its facility at 000 Xxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxx Xxxxxx 00000, as these terms are defined in the
Pennsylvania Uniform Commercial Code, 13 Pa. C. S. Section 1101 et seq.,
and alternatively, by those statutes in any states where Debtor does
business, called the "UCC" and any proceeds, substitutions and
replacements. Without limiting the foregoing, collateral shall include: all
Debtor's rights, title and interest in all accounts, contract rights,
general intangibles, chattel paper instruments, receivables, security
agreements, documents, notes, drafts, letters or advices of credit, bills,
acceptances, installment paper, certificates of deposit, tax refunds,
insurance proceeds, returns accessions, conditional sale or lease
contracts, chattel mortgages or deeds of trust, all inventory and
(including interest in any returned, repossessed or unshipped goods), and
all other hypothecations and promises or duties to pay money, now or
hereafter owned or acquired by Debtor and all proceeds and collections
thereof, all guaranties and other security therefore, and other amounts
owing to Debtor, together with all of Debtor's books of account, ledger
cards and records, wherever located, and all furniture and equipment,
tools, fixtures, all vehicles, all computer programs and systems owned or
operated in connection therewith located at the company's facilities at 000
Xxxxxx Xxxxxx, Xxxxxxxxxxx, Xxx Xxxxxx, all products and cash and non-cash
proceeds (including insurance policies and proceeds of the foregoing and
all guaranties, claims, rights, remedies and privileges relating thereto
wherever located. All of the above securing present and future advances.
(all of which is sometimes hereinafter referred to collectively as "Collateral";
the term "Collateral" shall also include all property of whatever nature now
owned or hereafter acquired by guarantor but leased to Seller or used by Seller
with guarantor's consent on any terms other than by lease.) Purchaser shall have
the right to use the name of Seller in enforcing Purchaser's rights hereunder.
(b) Seller does pledge, assign and deliver the Collateral to Purchaser
at its office in Philadelphia, Pennsylvania, or such other places as
Purchaser may designate, together with schedules executed by Seller,
listing the Collateral and fully and correctly specifying in adequate
detail the aggregate unmatured, unpaid face amount of each item of account
and the amount of the deferred installments thereof falling due each month.
The schedules shall be of form and tenor satisfactory to Purchaser. Any
representation, warranties, guaranties or other undertakings of Seller
contained in said schedules or endorsed on any Collateral or otherwise
entered into by or on behalf of Seller by any of its officers or agents
shall be binding on Seller and shall not limit any of the Seller's
warranties, guaranties, or other undertakings contained in this agreement,
but all such warranties, guaranties and undertakings and all rights and
remedies of Purchaser hereunder or under said schedules, endorsement or
other undertakings shall be cumulative and none is exclusive. Seller agrees
that Purchaser may from time to time verify the validity, amount and other
matters relating to the Collateral by means of mail, telephone or otherwise
in the name of Seller, Purchaser or such other name as Purchaser may
choose.
(c) Failure to include any item of Collateral in any schedule, or
failure to deliver physical possession of any instruments, documents, or
writings in respect of any Collateral shall not invalidate Purchaser's lien
and security interest therein, except to the extent that possession may be
required by applicable law for the perfection of said lien or security
interest.
(d) Failure of Purchaser to demand or require Seller to include any
item of Collateral in any schedule, to execute any schedule, to assign and
deliver any schedule, or to deliver physical possession of any instruments,
documents, or writings related to the Collateral shall not relieve Seller
of its duty to do so.
(e) After occurrence of any event of default, as defined in Paragraph
10 hereof, and until such default is either cured or waived by Purchaser in
writing, Purchaser may, without prior notice to Seller, apply all or any
part of the proceeds of any advance or advances thereafter made upon any
schedule or schedules to reduction of Seller's loan or advance account or
payment of Seller's obligations.
(f) All purchases and advances by Purchaser to Seller under this
agreement and under all other future agreements constitute one transaction,
and all indebtedness and obligations of Seller to Purchaser under this and
under all other agreements, present and future, constitute one general
obligation secured by collateral and security held and to be held by
Purchaser hereunder and by virtue of all other agreements between Seller
and Purchaser, now and hereafter existing. It is distinctly understood and
agreed that all of the rights of Purchaser contained in this agreement
shall likewise apply insofar as applicable to any modification of or
supplement to this agreement and to any other agreements, present and
future, between Purchaser and Seller.
(g) Without the written consent of Purchaser, Seller will not allow
any Financing Statement or Notice of Assignment of Accounts Receivable
other than those executed or filed by Seller or Purchaser as a result of
purchases or advances hereunder to be on file in any public office covering
any of Seller's accounts receivable, proceeds thereof or other matters
subject to the security interest granted to Purchaser in this Paragraph 6
of this agreement.
(h) Purchaser does hereby covenant and agree that a release of
Purchaser's lien on Seller's furniture and fixtures, equipment and other
non-receivable and intangibles related assets shall not be unreasonably
withheld in the event additional financing is sought by Seller.
8. Reserve Fund. Purchaser shall have the right to create and maintain a
reserve fund out of any payments or credits otherwise to be made by Purchaser to
Seller in an amount not to exceed ten (10%) percent of the then aggregate unpaid
gross amount of all accounts purchased by Purchaser hereunder, and to charge
against such reserve fund any amount for which Seller may become obligated to
Purchaser, whether such obligation arises under this Agreement or otherwise. In
order to provide for Account Debtor claims, Purchaser shall have the right to
revise the amount or the percentage of the reserve fund from time to time as
Purchaser may deem reasonably necessary to cover such contingencies. Purchaser,
in its sole discretion, shall determine whether to recover an obligation for
advances, reserves or remittals.
9. Charges and Balances. Purchaser may charge to Seller's account all
obligations. "Obligations" means all amounts of any nature whatsoever, direct or
indirect, absolute or contingent, due or to become due, arising or incurred
heretofore or hereafter, arising under this or any other agreement or by
operation of law, now or hereafter owing by Seller to Purchaser or to any
parent, subsidiary or affiliate of Purchaser. Said amounts include, but are not
limited to, loans, debts and liabilities heretofore or hereafter acquired by
purchase or assignment from other present or future clients of ours or through
participation. Without limiting the foregoing, obligations shall include the
amounts of all advances, over advances, interest, commissions, and customer
late-payment charges hereunder and all Receivables charged or chargeable to
Sellers' account hereunder. Unless otherwise specified, all obligations,
including any debit balance in Seller's account, shall be payable on demand.
Recourse to security will not be required at any time. All credit balances or
other sums at any time standing to Seller's credit and all reserves on
Purchaser's books, and all of Seller's property in Purchaser's possession at any
time or in the possession of any parent, affiliate or subsidiary of Purchaser's,
or on or in which Purchaser or any of them have a lien or security interest, may
be held in reserve by Purchaser as security for all obligations.
10. Events of Default. If Seller defaults in the performance of any
provision of this agreement, suspends business voluntarily or involuntarily,
makes an assignment for the benefit of creditors, or if a receiver is appointed
for the property of Seller, or if a petition in bankruptcy, or in equity for
receivership, or for reorganization under the Bankruptcy Act or any amendment
thereof, is filed by or against Seller, or a creditor's committee is named for
Seller, or in the event of occurrence of any act whatsoever amounting to a
business failure by Seller, or if there is any change in officers, directors or
stockholders of Seller not occasioned by death, Purchaser shall have all the
rights and remedies provided in this agreement and in the Uniform Commercial
Code in force in the State of Seller's chief place of business at the date of
this agreement and, in conjunction with or addition to those rights and
remedies, Seller will on demand repurchase from Purchaser all the outstanding
and unpaid accounts, and will pay Purchaser therefore the aggregate principal
amount owing thereon, plus charges accrued thereon as noted in Schedule "B",
actual attorney fees, interest at the prime rate in effect on date of default at
the Citizens Bank, Philadelphia, PA, plus three percent (3%), all expenses of
collection, and other charges or expenses paid or incurred by Purchaser in
respect of accounts, debtors, Seller, or guarantors, or in the prosecution or
defense of any actions in respect of this agreement, or accounts purchased
hereunder, less any amounts payable by Purchaser to Seller hereunder; and upon
failure so to do, Purchaser may liquidate accounts by sale at public or private
sale, on ten days' notice by registered mail to Seller, or on such notice as may
be required by law, at which sale Purchaser may bid for and purchase accounts
free from any right or equity of redemption of Seller, and the net proceeds of
such sale shall be applied against the repurchase price, and the Seller shall be
entitled to any surplus, or shall pay any deficiency.
11. Debt Compromise. Purchaser may, without notice to Seller, grant
extensions to, or adjust claims, or make compromises, compositions, or
settlements with debtors with respect to any accounts or securities or insurance
applying thereon without affecting the remaining liability of Seller hereunder.
12. Waivers. Seller waives the notice of nonpayment, protest, and demand,
or notice of protest and demand, of any accounts, or of any securities or
instruments relating to any such accounts. The waiver by Purchaser of any breach
of this Agreement, or any warranty or guaranty herein, shall not be construed as
a waiver of any subsequent breach. The failure to exercise any right hereunder
by Purchaser shall not operate as a waiver of such right. All rights and
remedies herein are cumulative and not alternative.
13. Intentionally Omitted.
14. Benefit. This Agreement shall be binding upon and inure to the benefit
of the parties, their legal representatives, successors, heirs and assigns.
15. Place of Business. Seller warrants and represents that its only places
of business are those set forth below and that Purchaser will be notified
promptly of any change of location of any place of business or recordkeeping or
the addition of any new place of business or recordkeeping. Seller further
warrants and represents that the only office where it keeps records concerning
the accounts herein referred to is its chief place of business set forth below.
16. Assignment. This agreement may be assigned by Purchaser without notice
to Seller. However, this Security Agreement may not be assigned by Seller
without written consent of Purchaser.
17. Amendment. This Agreement contains the entire agreement of the parties
hereto, and neither shall be bound by anything not expressed in writing.
18. Construction; Consent to Service of Process. The validity,
interpretation and effect of this agreement and guaranty shall be governed by
the laws of the Commonwealth of Pennsylvania. Seller hereby consent to the
jurisdiction of all courts in Pennsylvania and hereby appoint Xxxxx X. Xxxxxxx,
Esquire, whose address is 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx,
Xxxxxxxxxxxx, or any adult nominee appointed by Xxxxx X. Xxxxxxx as Seller's
Agent for Service of Process. Said appointment is for the sole purpose of
acceptance of service of process and no other; and Seller shall pay all costs
and expenses incurred by said Agent in notifying them of the service of any
process. Seller hereby authorizes said Agent to send notices to Seller via
certified mail, return receipt requested, at Seller's chief place of business
listed below. Nothing herein contained shall require Purchaser to institute any
action against Seller in the Commonwealth of Pennsylvania; Purchaser reserves to
itself the sole right to choose any other valid jurisdiction for such purpose,
and serve process in accord with the laws of said jurisdiction.
19. Assent to Decree. Seller, in the event of default hereunder, hereby
assents to the entering of a decree for the sale of the collateral by any court
of competent jurisdiction without notice to or service of process on the Seller.
20. Power of Attorney--Seller. Seller hereby appoints and authorizes
Purchaser any assignee of Purchaser, Xxxxxxx Xxxxxxxxxx Partnership ("LBP") and
Xxxxx X. Xxxxxxx as Seller's attorney-in-fact to deal generally and in all
respects, without restriction, in and with all of the real or personal property
of Seller wherever situate and whether or not such property is included in the
collateral described herein as if said property were owned by Purchaser,
including the right to endorse on its behalf Seller's name of checks, or other
forms of remittance received where such endorsement may be required to effect
collections, or to take possession of, sell or transfer any forms of collateral,
such as letters of credit, deeds of trust, notes, deeds, etc., where said
collateral must be looked to by Purchaser for collection of Seller's debts
hereunder. This power of attorney shall be deemed to be coupled with an interest
and shall not be revoked and cannot be revoked except with the prior written
consent of Purchaser.
21. Power of Sale. In event of a default, Xxxxx X. Xxxxxxx, or agents of
the secured party shall have the power to sell or otherwise dispose of the
collateral or any part thereof in such manner, at such time and place, upon such
terms and conditions and upon such notice as the Purchaser may deem appropriate
and apply the proceeds toward any indebtedness hereby secured. This power shall
be deemed to be coupled with an interest and may not be revoked without the
consent of the Purchaser.
22. Intentionally Omitted.
23. Term. This Agreement shall begin on the date first written above and
continue in full force and effect for a period of one (1) year and so on from
term to term, unless either party gives written notice of termination at least
sixty (60) days before the expiration of the then current term, except that,
after the occurrence of any event of default as defined in Paragraph 10 and the
Purchaser may terminate this Agreement at any time without notice to the Seller
if the Purchaser becomes insecure as to the Sellers' performance. Provided,
however, that all obligations of Seller, and all remedies of Purchaser under
this Agreement shall continue in full force and effect until full and final
performance of Seller's obligations hereunder.
24. Continuing Purchases. The parties contemplate a continuous course of
purchase of accounts by Purchaser and concurrent advances to Seller during the
term of this Agreement. Seller shall offer to Purchaser accounts in the face
amount of at least $5,000 per month. Seller warrants that it shall not enter
into any other factoring or similar agreement with any other entity or person
during the term of this Agreement without the prior written consent of
Purchaser. In the event Seller breaches any of the provisions of the Paragraph
setting forth the terms of this Agreement, Seller shall pay to Purchaser the sum
of $1,000 as liquidated damages for said breach.
25. Persons Authorized. Seller hereby authorizes the following named
persons to execute continuing Schedule "A's" and Schedule "B's" and assign
thereby to the Purchaser the accounts of Seller contained therein and to accept
and receive monies advanced thereon by Purchaser:
NAME TITLE
Xxxxxx Xxxxxx, Xx. President
Xxxxx Xxxxxxx Assistant to the Chariman
Xxxxxxxxxx Xxxxxxx Administrative Assistant
Purchaser may, at its option, require such persons to execute and deliver to
Purchaser signature cards or the like for the purpose of authenticating the
identity of the above-named persons.
26. Possessory Rights of Purchaser After Default. In the event of a default
by Seller, Purchaser shall have all rights permitted under Article 9 of the
Uniform Commercial Code or Commercial Law of the State in which the collateral
is located, including, but not limited to the rights of removal, possession and
sale as found in Section 9-501 et seq. of the Uniform Commercial Code as enacted
in the jurisdiction where the collateral is located.
27. Attorneys' Fees and Costs. With the exception of a confession of
judgment (however, this exception shall not apply in Purchaser's election if a
confession of judgment is opened, revoked, stricken or vacated), if Purchaser
spends time or hires others to represent it with regard to any breach hereof or
to collect or if Purchaser chooses to file suit against Seller for breach of
this Agreement, or both for any breach hereof or to recover sums due under this
Agreement by virtue of any breach thereof by Seller, Seller shall be jointly and
severally liable for and they shall pay Purchaser, upon demand, the full amount
of collection charges and/or attorneys' fees incurred by Purchaser and all costs
of suit including, but not limited to, court costs, filing fees, transcript and
deposition costs, exhibit costs, travel expenses, witness fees and all other
costs of suit. Attorneys' fees shall include reasonable charges for attorneys,
paralegals, legal assistants, secretaries and clerks. Attorneys' fees of $250 at
a minimum per hour shall be reasonable.
28. Remedies Cumulative. All rights and remedies of Purchaser are
cumulative to the full extent permitted by law.
29. Continuing Effect. The provisions of this Agreement and Guaranty shall
apply to all present and future transactions whereby Purchaser advances monies
to Seller or whereby Seller sells or assigns accounts to Purchaser.
30. Invalidity of Clause Does Not Invalidate Agreement. If any provision of
this Agreement or of any other document or agreement that is part of this
transaction shall contravene or be invalid under the laws of the United States
or of any state, such contravention or invalidity shall not invalidate this
Agreement or the supporting documents to this Agreement or any other agreement
that is part of this transaction but they shall be construed as not containing
said provision, and the rights and obligations of the parties through this
Agreement and its supporting documents and other agreements shall be
interpreted, construed and enforced accordingly.
31. CONFESSION OF JUDGMENT. SELLER AND GUARANTOR, AND EACH OF THEM, HEREBY
AUTHORIZE ANY PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF RECORD WITHIN THE
UNITED STATES, OR ELSEWHERE, TO APPEAR FOR AND CONFESS JUDGMENT AGAINST AND
ACCEPT SERVICE OF PROCESS FOR THEM, OR ANY OF THEM, AT ANY TIME OR TIMES, AS OF
ANY TERM, FOR THE UNPAID BALANCE OF ANY SUMS DUE UNDER THIS AGREEMENT AND ALL
OTHER LIABILITIES OF SELLER TO PURCHASER, OR ANY ASSIGNEE(S) WITH OR WITHOUT
DECLARATION FILED, WITH INTEREST AND COSTS, RELEASE OF ERRORS, WAIVER OF
APPEALS, WITHOUT STAY OF EXECUTION AND WITH COLLECTION COSTS OF TEN PERCENT
(10%) FOR EACH SEPARATE EXECUTION REQUIRED TO SATISFY THE SUM DUE, OR, IF
GREATER IN AMOUNT, THE SUM OF TWO THOUSAND FIVE HUNDRED ($2,500.00) DOLLARS FOR
EACH CONFESSION FILED. SELLER AND GUARANTOR WAIVE THEIR RIGHTS OF INQUISITION ON
ANY REAL ESTATE THAT MAY BE LEVIED UPON TO COLLECT THE AMOUNT DUE UNDER THE
JUDGMENT OBTAINED BY VIRTUE HEREOF, AND SELLER AND GUARANTOR DO FURTHER AGREE
THAT SAID REAL ESTATE BE SOLD ON A WRIT OF EXECUTION AND HEREBY WAIVE AND
RELEASE ALL RELIEF FROM ANY AND ALL APPRAISEMENT, STAY AND EXCEPTION LAW OF ANY
STATE, NOW IN FORCE OR HEREAFTER ENACTED, AND ANY RIGHT TO EXCEPT TO, STRIKE
OFF, OPEN OR APPEAL FROM THE JUDGMENT SO ENTERED; AND IF A TRUE COPY OF THIS
INSTRUMENT SHALL BE FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO FILE THE
ORIGINAL AS A WARRANT OF ATTORNEY, ANY RULE OF COURT TO THE CONTRARY
NOTWITHSTANDING. THE RIGHT TO CONFESS JUDGMENT HEREUNDER WILL NOT BE STAYED BY
ANY ONE EXERCISE OF SAME. THERE MAY BE MULTIPLE CONFESSIONS.
Initials
32. WAIVER OF TRIAL BY JURY. SELLER AND GUARANTOR HEREBY WAIVES TRIAL BY
JURY AND THE RIGHT TO INTERPOSE ANY COUNTERCLAIM OR OFFSET OF ANY NATURE OR
DESCRIPTION IN ANY LITIGATION ARISING UNDER THIS AGREEMENT OR ANY LIABILITY
HEREUNDER OR ENFORCEMENT OF REMEDIES HEREUNDER BY PURCHASER.
Initials
33. Required Forms. When Seller offers a Schedule of Accounts to Purchaser
for sale, Purchaser shall receive an original invoice together with one copy
thereof both original and copy containing a Notice of Assignment, and proof of
performance acceptable to purchaser including but not limited to a copy of the
Xxxx of Lading, shipping documents, proof of delivery, proof of performance,
proof of acceptance, any Contract, any Purchase Order, and/or a Purchase Order
number which corresponds with said invoice(s), as appropriate to the business of
Seller.
34. Access to Records and Reports. At least quarterly and sooner upon
request, Seller shall promptly furnish Purchaser with statements showing
Seller's financial condition and the results of Seller's operation. Purchaser
may at all times have access to inspect, audit and make extracts from all of
Seller's records, files, and books of accounts. Seller shall provide Purchaser,
without demand, within 120 days of the close of each fiscal year, all tax
returns and financial statements.
35 Payment of Disputed Account. Seller will immediately pay to Purchaser
the full amount of any account subject to a customer dispute of any kind
whatsoever.
36 Charge-Back. If Seller does not fully settle a dispute upon demand,
Purchaser may, in addition to any other remedies under this Agreement, charge or
sell back the account to Seller.
37 Charge-Back for Invoicing Error. Mistaken, incorrect and/or erroneous
invoicing, submitted by Seller to Purchaser may at Purchaser's discretion be
deemed a disputed invoice and be charged-back to Seller.
38 Notice of Dispute. Seller must immediately notify Purchaser of any
disputes between customer or account debtor and Seller on assigned invoices.
39 Settlement of Dispute. Purchaser may settle any dispute directly with
customer. Such settlement does not relieve Seller of final responsibility for
payment of such account.
40 Disposal of Documents. Seller authorizes Purchaser in its sole
discretion to dispose of any documents, schedules, invoices or other papers
delivered to Purchaser in connection with this Agreement, at any time at least
six (6) months after they have been delivered to Purchaser.
41 Hold Harmless. Seller shall hold Purchaser harmless against any
customer's ill will arising from Purchaser's collecting or attempting to collect
any accounts.
42 Paragraph Headings. Paragraph headings are inserted for convenience only
and do not form a part of this Agreement.
43 Clerical Errors or Omissions. All stenographic or clerical errors or
omissions are subject to correction.
44 Jurisdiction, Venue and Governing Law. All parties hereto agree that
this Agreement shall be governed by the laws of Pennsylvania. In any legal
proceeding involving, directly or indirectly, any matter arising out of or
related to this Security Agreement or the relationship evidenced hereby, each
undersigned party hereby irrevocably submits to the exclusive jurisdiction of
any state court located in any county in the Commonwealth of Pennsylvania where
Purchaser maintains an office or does business and/or the federal court in the
Eastern District of Pennsylvania, and Seller agrees not to raise any objections
to such jurisdiction or to the laying or maintaining of the venue of any such
proceeding in such county or district. Each undersigned party agrees that
service of process in any such proceeding may be duly effected upon it by
mailing a copy thereof by certified mail, postage prepaid, to each undersigned
party. Seller accept jurisdiction and venue in Philadelphia, PA or such other
Pennsylvania County as Purchaser shall maintain an office.
45 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
46 Faxed Copies. The parties agree that a facsimile of the signed Agreement
constitutes a legally binding, original document, obligating the party or
parties whose signatures appear thereon.
[Space Left Intentionally Blank]
IN WITNESS WHEREOF, Seller have executed this Agreement, and Purchaser has
noted its acceptance by its authorized representative.
SELLER: Americana Publishing, Inc.
Attest:
BY: [SEAL]
XXXXXX XXXXXX, XX., President
[Corporate Seal] Date:
Xxxxxxx Xxxxxxxxxx Partnership
Witness
BY: [SEAL], 2002.
XXXXX X. XXXXXXX, Manager
Date:
STATE OF NEW MEXICO :
: SS.
COUNTY OF BERNALILLO :
On this day of , 2002, before me, the undersigned Notary, personally
appeared Xxxxxx Xxxxxx, Xx., who acknowledged himself to be the President of
Americana Publishing, Inc., and that he being authorized so to do, executed and
acknowledged the foregoing Security Agreement and Power of Attorney for the
purposes therein contained.
Notary Public
My Commission expires:
Xxxxxxx Xxxxxxxxxx Partnership
SCHEDULE "A"
Seller: Americana Publishing, Inc.
Schedule
No.
Guarantor(s): None
Total Purchase $
Hold Back $
Discount $
Misc. Charge $
DATE: Net Check Amt. $
All invoices are subject to approval by Xxxxxxx Xxxxxxxxxx Partnership Any
invoice that is stricken from this schedule will not alter the terms of the
contract.
SCHEDULE OF ACCOUNTS ASSIGNED
--------------------- ------------------ ------------------- ------------------ ------------------- ------------------ -------------------
DATE OF INVOICE PO # NAME AMOUNT INVOICE DATE AMOUNT
ADVANCED ADVANCED
--------------------- ------------------ ------------------- ------------------ ------------------- ------------------ -------------------
--------------------- ------------------ ------------------- ------------------ ------------------- ------------------ -------------------
--------------------- ------------------ ------------------- ------------------ ------------------- ------------------ -------------------
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--------------------- ------------------ ------------------- ------------------ ------------------- ------------------ -------------------
TOTALS
--------------------- ------------------ ------------------- ------------------ ------------------- ------------------ -------------------
All of the above invoices are due and payable on or before the 30th day after
the invoice or Seller shall be in default.
Attached hereto and incorporated herein by reference are copies of acceptances
of services performed or goods received by Seller for each account assigned.
For valuable consideration, receipt of which is hereby acknowledged, and
intending to be legally bound hereby, the undersigned hereby sells, assigns,
sets over and transfers to Xxxxxxx Xxxxxxxxxx Partnership its successors, or
assigns, all its right, title and interest in and to the accounts above-named,
including all monies due or to become due thereon, all in accordance with and
pursuant to that certain Security Agreement now existing by and between the
undersigned and Xxxxxxx Xxxxxxxxxx Partnership, the conditions, representations,
warranties and agreements of which are made part of this sale and assignment and
are incorporated herein by reference. ASSIGNOR: American Publishing, Inc.
BY: (SEAL)
NAME: Xxxxxx Xxxxxx, Xx.
TITLE: PRESIDENT
SCHEDULE "B"
Discount rate to be charged under the Security Agreement and Power of Attorney
dated , 2002, by and between Americana Publishing, Inc. and Xxxxxxx Xxxxxxxxxx
Partnership ("LBP") shall be as stated below. LBP shall advance 70% of the gross
amount of each account assigned to LBP. The discount will be charged on the
gross amount of each account, not on the amount of the cash advance, and will be
calculated on the greater of $25.00 per invoice or the number of days between
the advance of monies to Seller and the date of collection by LBP as follows:
Schedule B
Length of Time Outstanding Percentage Rate
Days 1-30 4.0%
31-40 5.0%
41-50 6.0%
51-60 7.0%
61-70 8.0%
71-80 9.0%
81-90 10.0%
Seller is required to buy back invoice by 91st day, but if Seller does not do
so, add 4% and increase and 1% every 10 days thereafter.
Any account not paid within 90 days shall be assessed an added penalty of
4% of the gross amount and the discount schedule shall thereupon revert to step
one above (1-30 days) and the discounts shall accumulate and the process shall
be repeated, with discounts figured cumulatively until the account is paid in
full. In addition, LBP may assert its rights under paragraph 1 of the Security
Agreement with respect to accounts not paid within 120 days.
Seller will repurchase any invoices not paid in ninety (90) days from date
of purchase at one hundred (100%) percent of face value in one of the following
manners or combination thereof, at Purchaser's option: 1) by submitting new
invoices; 2) by deducting from reserve accounts; 3) by payment from Seller.
Short payments, discounts and any obligations Seller may have to Purchaser will
be deducted in the same manner.
Notwithstanding anything to the contrary above, the minimum discount shall
be twenty-five dollars per invoice.
The remainder of any account after advances to Seller less any charges,
discounts as listed above or deductions or other monies owed to LBP by Seller
plus any overpayment will be paid to Seller by LBP upon payment to LBP by the
party indebted on said account.
There will be a one time closing fee of $1000.00, $500.00 of which was paid
and $500.00 of which will be deducted from the first three cash advances. If
Mortgages or Deeds of Trust on real properties are involved, the cost of
preparing and recording the security instruments shall also be deducted at that
time. LBP reserves the right to order a credit report--at a cost not to exceed
$50.00 per report--on the debtor of any account offered by Seller to LBP; and
said cost shall be charged to Seller and deducted from the next advance. Xxxxxxx
Xxxxxxxxxx Partnership shall, at Seller's request, make such reports available
to Seller.
ATTEST: Americana Publishing, Inc.
BY:
(SEAL)
By: Name: Xxxxxx Xxxxxx, Xx.
Title: President
Xxxxxxx Xxxxxxxxxx Partnership
BY: (SEAL)
Name: Xxxxx X. Xxxxxxx
Title: Manager
AMERICANA PUBLISHING, INC.
000 Xxx Xxxxx XX Xxxxx 000X
Xxxxxxxxxxx, XX 00000
000-000-0000
000-000-0000 Fax
Date:
VIA FACSIMILE, FAX #
FIRST CLASS MAIL
Attention: Accounts Payable
Re: Assignment of Accounts Receivable for Americana Publishing, Inc.
Dear Sirs:
I am pleased to announce we have entered into a financing arrangement with
Xxxxxxx Xxxxxxxxxx Partnership and their financial institution, Xxxxxxx
Xxxxxxxxxx Partnership ("LBP"). As part of this arrangement, we have assigned
all of our accounts receivables to them. This financing helps us to serve you
better by enabling us to grow and profit from increased liquidity.
This arrangement depends, however, on the cooperation of our good
customers, such as you, to help make the system work.
You are hereby requested and notified to make your remittance on all of our
invoice(s) payable to the credit of Xxxxxxx Xxxxxxxxxx Partnership with the
payment sent directly to:
Xxxxxxx Xxxxxxxxxx Partnership
x/x Xxxxxxx Xxxxxxxxxx Partnership
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000-0000
Please acknowledge below receipt and acceptance of this Notice of
Assignment and your acknowledgment of no dispute or set off with regard to any
of our outstanding invoices with you and that you will notify LBP within ten
(10) days if you determine that any dispute or set off exists by signing and
returning this letter to LBP at the above mentioned address, keeping a copy of
this letter for your files. These instructions shall remain in effect until such
time as you receive written instructions altering the arrangement from a
representative of LBP. A telefacsimile signature on this letter shall be equally
as binding as an actual signature.
We greatly appreciate your business and thank you for your help in this
matter.
Very truly yours,
Americana Publishing, Inc.
By:
Name:
Title:
RECEIVED AND ACCEPTED BY:
Company Name:
Signature:
Print Name:
Date: Print Title:
Please mail the original executed document to Xxxxxxx Xxxxxxxxxx Partnership in
the enclosed envelope. Please fax a copy to Xxxxxxx Xxxxxxxxxx Partnership at
(000) 000-0000.
HIL/lbl
SCH:
CERTIFICATION OF REPRESENTATION AND WARRANTY COMPLIANCE OF NO FRAUD
IN SALE OF RECEIVABLES BY AMERICANA PUBLISHING, INC. TO
XXXXXXX XXXXXXXXXX PARTNERSHIP
We, the undersigned, Americana Publishing, Inc. ("API"), do hereby certify,
represent and warrant with respect to the attached invoice(s) tendered for sale
to Purchaser, Xxxxxxx Xxxxxxxxxx Partnership ("LBP"), to induce LBP to advance
funds to purchase API's accounts receivable, and INTENDING TO BE LEGALLY BOUND
HEREBY, as follows:
1. Americana Publishing, Inc. business records and attached invoices were
diligently reviewed by the undersigned for purposes of the
certification;
2. The attached invoice(s) are true and correct, and are the original
invoice(s);
3. The attached invoice(s) are for completed work or completed sale of
goods without dispute or objection, sold, delivered and accepted by
the account debtor;
4. The attached invoice(s) are for completed work or sale whose invoice
has not been previously sold or delivered by me to LBP or any other
person or entity;
5. The attached invoice(s) are for sale of services or goods whose
invoices have never been billed previously or sold to any other
entity;
6. The attached invoice(s) are valid and are due and payable solely to
LBP and contain no duplicately billed items;
7. The undersigned have made a thorough review and check of all relevant
documents in order to make the assertions, certifications,
representations and warranties contained in this document;
8. I have not deposited, received nor negotiated any payment, check or
remittance (collectively "remittances") from an account debtor whose
invoices were/are assigned to LBP and I have promptly forwarded to LBP
all remittances received by me and others on my behalf;
9. Each account debtor invoice sold as a result of this certification has
executed a Notification of Assignment to LBP and has agreed to notify
LBP within 10 days of any dispute or setoff;
10. The undersigned acknowledge and agree that if there is any inaccuracy
with respect to this certification, that said inaccuracy has induced
LBP to purchase the accounts receivable units;
11. No claim, demand or action is pending or threatened regarding
non-payment of local, state or federal taxes and that all tax filings
with governmental authorities having jurisdiction over LBP are
current, accurate, and complete; and
12. A transmission of this certification by telefacsimile shall be equally
as binding as delivery of an original.
I AGREE, VERIFY, CERTIFY, WARRANT, REPRESENT AND ATTEST TO ALL OF THE ABOVE.
AMERICANA PUBLISHING, INC.
Date:
BY:
Xxxxxx Xxxxxx, Xx., President
Schedule:
BY:
CHECKLIST FOR FACTORING AGREEMENT
1 Client Application
2 Credit Applications for:
Seller
Guarantor(s)
3 Financial Statements for:
Seller
Guarantor(s)
4 Security Agreement with:
Schedule A
Schedule B
Affidavit regarding Confession of Judgment and Waiver of Jury Trial
5 Certificate of Corporate Resolution
6 Extract of Security Agreement
7 Certification of Officers
8 Warranty of Financial Statements for:
Seller
Guarantor(s)
9 3 UCC-1 Forms
10 Are all documents:
Signed?
Dated?
11 Credit reports on:
Seller
Customers
Guarantors
12 UCC Search on Seller to determine if he has the authority to sell and assign receivables.
13 Obtain start-up check
INVOICE CONFIRMATION
INFORMATION TO BE SUPPLIED BY SELLER:
Schedule No.:
Customer P.O. # (if applicable):
Invoice #:
Americana Publishing, Inc. Internal number if different than invoice number: (if
applicable)
Name of Customer:
Name of Customer Employee Confirming Notice of Assignment:
Customer Department:
Customer's Phone Number:
Name, Title & Mailing Address and Facsimile Number of Person to send Notice of Assignment:
(This is for first invoice with each new customer)
*************************************************************************************************************
INFORMATION TO BE SUPPLIED BY Xxxxxxx Xxxxxxxxxx Partnership:
Date of Confirmation:
Time of Confirmation:
Initials of
Confirmor:
Status of P.O.: Confirmed Not Confirmed
Confirmed with
Name
Comments:
REFERENCE OF TERMS
SELLER: Company providing goods or services (e.g. Americana Publishing, Inc.)
CUSTOMER: Company purchasing goods or services (e.g. Audio Partners)
CERTIFICATION OF OFFICERS
of
AMERICANA PUBLISHING, INC.
To: Xxxxx X. Xxxxxxx, Partner
Xxxxxxx Xxxxxxxxxx Partnership
0000 Xxxxxx Xx., Xxx. 000
Xxxxxxxxxxxx, XX 00000
In order to induce you to enter into a Security Agreement, purchase billing
rights from AMERICANA PUBLISHING, INC. (the "corporation") above named, and to
continue to do so, the undersigned officers of said corporation warrant,
represent and covenant as follows:
1. The exact name of the corporation is AMERICANA PUBLISHING, INC..
2. The corporation was incorporated under the laws of the State of
Colorado and is in good standing under those laws.
3. The chief place of business of the corporation, being the place at
which the corporation maintains its books and records pertaining to
accounts, contract rights, inventory, etc., is located at :
000 Xxx Xxxxx XX, Xxxxx 000X Xxxxxxxxxx
XXXXXX XXXXXXX XXXXXX
Xxxxxxxxxxx Xxx Xxxxxx 00000
CITY OR TOWN STATE & ZIP CODE
It has no other places of business.
4. There is no provision in the certificate of incorporation or by-laws
of the corporation, or in the laws of the State of its incorporation,
requiring any vote or consent or share holders to authorize the sale
of any billing rights of the corporation. Such power is vested
exclusively in its Board of Directors.
5. The officers of the corporation, and their respective titles and
signatures are as follows:
PRESIDENT Xxxxxx Xxxxxx, Xx. X
SECRETARY Xxx Xxxxx X
TREASURER Xxx Xxxxx X
Except as indicated below, each of said officers has signatory powers as to all
your transactions with the corporation.
6. Prompt written notice will be given to you of any change or amendment
with respect to any of the foregoing matters. Until such notice is
received by you, you shall be entitled to rely upon the foregoing in
all respects. Very truly yours,
AMERICANA PUBLISHING, INC.
Xxxxxx Xxxxxx, Xx.
President
SELLER'S WARRANTY OF
FINANCIAL STATEMENTS
Seller warrants as follows:
1. That the financial statements which were submitted to Purchaser by
Seller or anyone in behalf of Seller and all books of account and records of
Seller are true and correct and have been prepared in conformity with generally
accepted accounting principles; correctly reflect valid transactions and asset
values, correctly reflect the financial condition of Seller as of their
respective dates and the results of Seller's operations during the respective
periods covered thereby and that Seller has no liabilities or obligations either
contingent or otherwise except as those disclosed on said financial statements
submitted.
2. That there has been no material adverse change which has not been
disclosed to Purchaser in Seller's financial condition from that shown in its
balance sheet, profit and loss statement, and any other financial data which has
been submitted to Purchaser as an inducement to purchase receivables from
Seller.
AMERICANA PUBLISHING, INC.
BY:
NAME: Xxxxxx Xxxxxx, Xx.
TITLE: President
AMERICANA PUBLISHING, INC.
000 Xxx Xxxxx XX Xxxxx 000X
Xxxxxxxxxxx, XX 00000
000-000-0000
000-000-0000 Fax
Xxxxxxx Xxxxxxxxxx Partnership
0000 Xxxxxx Xx., Xxx. 000
Xxxxxxxxxxxx, XX 00000
Re: Applicable Laws and Jurisdiction and Venue
Gentlemen:
We, the undersigned, agree that all business transactions pursuant to the
Security Agreement are governed by the laws of the Commonwealth of Pennsylvania
and we agree that it is the place of origin of all agreements.
CONSENT TO JURISDICTION AND VENUE
In any legal proceeding involving, directly or indirectly, any matter
arising out of or related to this Security Agreement or the relationship
evidenced hereby, each undersigned party hereby irrevocably submits to the
exclusive jurisdiction of any state court located in any county in the
Commonwealth of Pennsylvania where Purchaser maintains an office or does
business and/or the federal court in the Eastern District of Pennsylvania, and
Seller agrees not to raise any objections to such jurisdiction or to the laying
or maintaining of the venue of any such proceeding in such county or district.
Each undersigned party agrees that service of process in any such proceeding may
be duly effected upon it by mailing a copy thereof by certified mail, postage
prepaid, to each undersigned party.
Thank you very much.
Very truly yours,
ATTEST AMERICANA PUBLISHING, INC.
BY:
(SEAL) Xxxxxx Xxxxxx, Xx.
Name:
Title:
[corporate seal]
(SEAL) Witness
EXTRACT OF THE SECURITY AGREEMENT
AND STATEMENT OF ASSIGNMENT OF ACCOUNTS RECEIVABLE
Americana Publishing, Inc. has assigned or intends to assign one or more
accounts receivable to Xxxxxxx Xxxxxxxxxx Partnership in accordance with the
Uniform Commercial Code as enacted in the State of Pennsylvania. The Assignor is
a Corporation, Americana Publishing, Inc. The principal place of business of
assignor is: 000 Xxx Xxxxx XX Xxxxx 000X, Xxxxxxxxxxx, XX 00000. The assignee is
a Limited Liability Company. The business address of assignee is: c/o Langsam
Xxxxxxx LLP, 0000 Xxxxxx Xxxxxx, Xxx. 0000, Xxxxxxxxxxxx, XX 00000.
ASSIGNOR: ASSIGNEE:
AMERICANA PUBLISHING, INC. Xxxxxxx Xxxxxxxxxx Partnership
BY: BY:
XXXXXX XXXXXX, XX. XXXXX X. XXXXXXX
President Manager
CLIENT SCHEDULE "A"
FACTORING CHECKLIST
1 Factoring Agreement Letter for Customer/Account Debtor
Signed and Dated [This will be signed by the Buyer's Representative,
but it also must go to the Accounting Department, who will pay.]
2. Schedule of Accounts Assigned (Schedule "A")
3. Invoice Confirmation for each Account Debtor
4. Proof of Delivery/Performance
5. Original Invoices with assignment stickers or assignment
notice type in the invoice
6. Copies of Invoices after assignment stickers
are applied
7. Addressed Envelopes to Account
Debtors with Postage and
LBP return address on envelope
8. Certification
9. Run Tape of Totals
showing all calculations
Attach Calculator Tape $ Total Sold
$ less hold back (20%)
[HERE] $ less miscellaneous
$ less miscellaneous
$ wire fee
$ net wire
XXXXXXX XXXXXXXXXX PARTNERSHIP
0000 XXXXXX XXXXXX
XXXXX 000
XXXXXXXXXXXX, XXXXXXXXXXXX 00000-0000
(000) 000-0000
FAX (000) 000-0000
TOLL FREE (877) 00-XXXXXX
XXXXXXXX@XXXXXXXXXXXXXX.XXX
Secretary of State
UCC Division
Xxxxx Xxxxxxx Xxxxxxxx
Xxxxx Xx, XX 00000
Re: UCC-3 Filing for Americana Publishing, Inc.
Dear Sir/Madam:
Enclosed herein, please find a UCC-3 to be filed in your office. Also
enclosed is a check for $20.00 payable to the Secretary of State for the fees.
Please send back a time-stamped copy to this office in the enclosed
self-addressed stamped envelope provided for your convenience.
Thank you for your help in this matter.
Very truly yours,
XXXXX X. XXXXXXX
Enclosure
XXXX
XXXXXXX XXXXXXXXXX PARTNERSHIP
0000 XXXXXX XXXXXX
XXXXX 000
XXXXXXXXXXXX, XXXXXXXXXXXX 00000-0000
(000) 000-0000
FAX (000) 000-0000
TOLL FREE (877) 00-XXXXXX
XXXXXXXX@XXXXXXXXXXXXXX.XXX
Secretary of State
UCC Division
Xxxxx Xxxxxxx Xxxxxxxx
Xxxxx Xx, XX 00000
Re: UCC-1 Filing for Americana Publishing, Inc.
Dear Sir/Madam:
Enclosed herein, please find a UCC-1 to be filed in your office. Also
enclosed is a check for $20.00 payable to Secretary of State for the fees.
Please send back a time-stamped copy to this office in the enclosed
self-addressed stamped envelope provided for your convenience.
Thank you for your help in this matter.
Very truly yours,
XXXXX X. XXXXXXX
Enclosure
SASE
UNIFORM COMMERCIAL CODE CHECKLIST
1. Obtain UCC 1 form from shelves in clerk's office _______
2. Get full legal name and mailing address of debtor and fill
in section entitled Debtor. There is more than one section
for debtor so if there is more than one debtor, you may fill
in multiple names. There is 1(a), 1(b). _______
3. Fill in name and address of secured party. There is a block
on the UCC 1 entitled secured party and you fill the secured
parties name in under that block. _______
4. There are three blocks that include Secretary of State,
Prothonotary and real estate records of _____. UCC 1's can
be filed with the Secretary of State in Harrisburg and that gives
statewide notice with the county in which the debtor is situate,
and with the recorder of deeds. Generally, we usually do the
County where the debtor is situated with the Prothonotary
and the Secretary of State. So you will have to do a UCC1
for each of those entities and you must check the appropriate
block. ________
5. Number of additional sheets if any put 1. Under identify
collateral by item or type. I have a standard collateral
paragraph in the finance manual. Under Item 9-identify
collateral there is an Exhibit "A" you type as much of the
Exhibit "A" in here especially the first sentence, then you
type "see attached Exhibit "A". Check the block entitled
products of the collateral. __________
6. Do a debtors signature under number 11. Under return receipt
to put HIL, Esquire, Partner, XXXXXXX XXXXXXXXXX address.
CERTIFICATE OF CORPORATE RESOLUTION
I, Xxxxxx Xxxxxx, Xx., President of Americana Publishing Inc., a
corporation organized under the laws of the State of Colorado, do hereby certify
that at a special meeting of the Board of Directors of said corporation, duly
held at its office on the ____ day of ________, 2002, at which a quorum was
present and acting throughout, the following resolutions were duly moved,
seconded and unanimously adopted:
RESOLVED: That it is in the best interest of this company to borrow money
and obtain credit in any amount from Xxxxxxx Xxxxxxxxxx Partnership ("LBP")
on such terms as may seem to any officer or Chairman of the Board of
Directors or Chairman of the Executive Committee of this company advisable,
and such officer is authorized and empowered to enter into, execute and
deliver to LBP agreements therefore, (including Security Agreement and
Power of Attorney to LBP [and all related closing documents requested by
LBP]) and any promissory or collateral note evidencing any indebtedness to
LBP including all drafts and acceptances of this company; to execute powers
of attorney; to assign accounts receivable as collateral security; to sell
accounts receivable at a discount; to execute applications for letter of
credit; to pledge inventory assets or material as collateral security for
any loan or financing agreement; to provide full recourse for LBP; to
assign with full recourse to LBP third party promissory notes, conditional
sales contracts, chattel mortgages or other third party evidences of
indebtedness together with any collateral securing such third party
indebtedness; to execute mortgages on the real or personal property of this
company to LBP as security for any loan; to execute assignments or
satisfactions of any mechanic's lien; to execute security instruments and
financing statements under the Uniform Commercial Code; to assign letters
of credit in favor of this company to LBP as security for any loan or
financing agreement; to deliver financial and other statements of this
company to LBP and to make, execute and deliver any and all agreements,
security instruments, documents and certificates as may from time to time
be required by LBP to carry out and give effect to the above; and as
security to pledge or assign and deliver accounts receivable or any other
indebtedness or chooses in action, stocks, bonds, bills, receivables and
other negotiable papers, bills of lading, warehouse receipts, insurance
policies and certificates of any other property held by or belonging to
this company and such officer has full authority to endorse, assign or
guarantee the same in the names of this company; to guarantee the
obligations of any other person, firm or corporation to LBP and such
officer and/or designated employees of the company are hereby empowered to
deliver to LBP any or all documents and securities or other property to be
held by LBP in pledge or otherwise; such additional power and authority as
is required to enter in a factoring Agreement with LBP is granted and
ratified; any officer of this corporation is given such further authority
and power as is not expressly granted above to do such further acts and
deliver and execute such further things as is necessary and proper to
fulfill the purposes of this resolution: namely to enter into a factoring
agreement with the LBP; and it was further
RESOLVED: That any officer, agent or nominee of LBP or any assignee of LBP
is hereby authorized to endorse the name of this corporation to any and all
checks, drafts and other instruments or orders for the payment of money
payable to this corporation or its order, to deposit the same in any
account or accounts of LBP with any entity, bank or trust company, and to
deal with any and all such checks, drafts and other instruments or orders
for the payment of money, and proceeds thereof as the property of LBP ; and
it was further
RESOLVED: That any bank or trust company be, and it hereby is, authorized
and requested to receive for deposit to the credit of LBP without further
inquiry, all such checks, drafts and other orders or instruments for the
payment of money, payable to this corporation or its order, and that said
entity, bank or trust company shall be under no liability to this
corporation for the disposition which said LBP may or shall make of the
said instruments or the proceeds thereof.
I further certify that the foregoing resolutions remain in full force and
effect, have not been rescinded or modified, and conforms with the charter and
by-laws of the corporation.
IN WITNESS WHEREOF, I have hereunto set my hand as Secretary of said
corporation and affixed its corporate seal, by order of its Board of Directors
this day of , 2002.
ATTEST AMERICANA PUBLSHING, INC.
Name: Xxxxxx Xxxxxx, Xx., President (SEAL)
(SEAL)
