ACCOUNT PURCHASE AGREEMENT
This Agreement dated as of November ___, 2001 is between Xxxxx Fargo Bank West,
N.A., Trustee of the Xxxxx X. Xxxxxx Rollover XXX and Xxxx X. Xxxxxxxxxxx
(hereinafter collectively referred to as "WFBW"), and OPEC Corp. ("Customer")
The Customer and WFBW agree as follows:
1. Purpose of Agreement. The Customer desires to sell and assign to
WFBW acceptable accounts receivable. The purpose of this agreement is commercial
in nature and not for household, family and/or personal use.
2. Definitions.
"Account" means any right of payment of the net amount for goods sold, or leased
and delivered or services rendered in the ordinary course of Customer's business
which is not evidenced by an instrument or chattel paper.
"Acceptable Account" means an Account, in an amount not to be less than $100,
which conforms to the warranties and terms set forth herein or at WFBW's sole
discretion, net of any credits or allowances of any nature, except the following
shall not in any event be deemed Acceptable Accounts:
(i) That portion of Accounts unpaid 90 days or more after the
invoice date or, if WFBW in its discretion has determined that a
particular dated Account may be acceptable, that portion of such
Account which is unpaid more than 30 days past the stated due date or
more than 90 days past the invoice date;
(ii) That portion of Accounts that is disputed or subject to a
claim of offset or a contra account; (iii) That portion of
Accounts not yet earned by the final delivery of goods or
rendition of services, as
applicable, by the Customer to the Account Debtor;
(iv) Accounts owed by any unit of government, whether foreign
or domestic (provided, however, that there shall be included in
Acceptable Accounts that portion of Accounts owed by such units of
government for which the Customer has provided evidence satisfactory to
WFBW that (A) WFBW has a first priority perfected security interest and
(B) such Accounts may be enforced by WFBW directly against such unit of
government under all applicable laws);
(v) Accounts owed by an Account Debtor located outside the
United States which are not (A) backed by a bank letter of credit
naming WFBW as beneficiary or assigned to WFBW, in WFBW's possession
and acceptable to WFBW in all respects, in its sole discretion, or (B)
covered by a foreign receivables insurance policy acceptable to WFBW in
its sole discretion;
(vi) Accounts owed by an Account Debtor that is insolvent, the
subject of bankruptcy proceedings or has gone out of business;
(vii) Accounts owed by a shareholder, subsidiary, affiliate,
officer or employee of the Customer; (viii) Accounts not
subject to a duly perfected security interest in WFBW's favor
or which are subject to any lien,
security interest or claim in favor of any Person other than WFBW
including without limitation any payment or performance bond;
(ix) That portion of Accounts that has been restructured,
extended, amended or modified;
(x) That portion of Accounts that constitutes advertising,
finance charges, service charges or sales or excise taxes;
(xi) Accounts owed by an Account Debtor, regardless of whether
otherwise acceptable, if 10% or more of the total amount due under
Accounts from such Account Debtor is unacceptable under clauses above;
and,
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(xii) Accounts, or portions thereof, otherwise deemed
unacceptable by WFBW in its sole discretion.
"Account Debtor" means Customer's customer or the person or entity
owing money to the Customer.
"Account Debtor Dispute" means a claim by Account Debtor against
Customer, of any kind whatsoever, that reduces or may reduce the amount
collectible from Account Debtor by WFBW which arises at anytime, both before or
after signing of this Agreement or the purchase of an Account.
"Collateral" means the intangible or tangible property given as
security to WFBW by Customer for any Obligations and liabilities of Customer to
WFBW under this Agreement,
"Customer" means the seller and assignor of the Accounts.
"Credit Problem" means, as established by the Customer, that an Account
Debtor is unable to pay its debts because the Account Debtor is the subject of a
bankruptcy, insolvency, or receivership proceeding within 75 days of the date of
the invoice.
"Event of Default" shall mean the existence of a default pursuant to
paragraph 7 hereunder, or a default under any documents given to WFBW in
connection with this Agreement.
"Initial Payment" shall mean the amount paid to the Customer at the
time of purchase of the Account which is equal to the gross face amount of the
Account less stated trade discounts offered by the Customer to the Account
Debtor less 15 percent.
"Minimum Fee" shall mean the minimum fee paid per month by the Customer
as stated in paragraph 5(m) below.
"WFBW Discount" means the amount to be paid by the Customer according
to the following schedule:
(i) Days Rate
---- ----
(for payment
of account)
-----------
1-60 3 % of the gross face amount of each Account purchased by WFBW.
61+ 0.05 of 1% additionally per day until the account is paid in full. Upon request from Customer,
WFBW may in its sole discretion, Purchase Accounts or specific invoices that are less than $100.00.
If any Event of Default exists, as defined below, this discount may
increase in an amount to be determined by WFBW at its sole discretion. WFBW may,
upon prior written notice to Customer, change the amount of any fee or charge at
its sole discretion or if WFBW's cost of funds increases for any reason. Such
change shall be effective upon delivery of the notice.
plus,
(ii) Each Account purchased by WFBW that is less than $100.00 shall be
assessed an additional $1.50 charge.
"Net Purchase Price" means the purchase price of each Account sold to
WFECI which shall be equal to the gross face amount of each Account less WFBW's
Discount and other charges and less any amount of any trade discounts, credits
or allowances, or any other reductions or adjustments to such Accounts taken by
the Account Debtor.
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"Part Payment" means a payment/payments made by WFBW to the Customer
which is/are less than the full Net Purchase Price as more fully described in
Section 3 below.
"Repurchase Price" for any Account means the Net Purchase Price less
any amounts collected from the Account Debtor on the Account plus all fees,
costs or expenses associated with the repurchase or collection of such Account.
3. Purchase of Accounts.
a. Pursuant to the terms herein, Customer hereby sells, transfers and
assigns to WFBW, its successors and assigns, as absolute owner, and WFBW hereby
purchases and accepts from the Customer all of the Customer's right, title and
interest in and to:
(i) the Customer's Acceptable Accounts receivables due from the Account
Debtor together with all rights of action accrued or to accrue thereon,
including, without limitation, full power to collect, xxx for, compromise,
assign, in whole or in part, or in any other manner enforce collection thereof
in Customer's name or otherwise, as identified and accepted by WFBW, and
(ii)all right, title and interest of the Customer in and to the books
and records evidencing or relating to the Acceptable Account, all deposits, or
other security for the obligation of any person under or relating to the
Acceptable Account, all goods relating to, or which by sale have resulted in,
the Account, including goods returned by any Account Debtor, debtor or obligor
in any way obligated on or in connection with the Acceptable Account including,
without limitation, the Account Debtor, all rights of stoppage in transit,
replevin, repossession and reclamation and all other rights of action of an
unpaid vendor or lienor; and
(iii) proceeds of the foregoing in any form.
b. Approval: WFBW shall not purchase an Account unless such Account is
first submitted to WFBW by Customer for approval. WFBW is not obligated to buy
any Account from Customer which WFBW does not deem acceptable.
c. Purchase: Upon approval and acceptance by WFBW of an Account for the
assignment and sale of an Account to WFBW, Customer shall be entitled to an
Initial Payment.
d. Purchase Price: As consideration for the assignment and sale of an
Account to WFBW, WFBW shall pay to the Customer the Net Purchase Price on the
terms and conditions as stated herein.
e. Payment of Purchase Price: If no Default exists hereunder, WFBW
shall pay the Net Purchase Price to the Customer at the Customer's request or at
WFBW's discretion as follows:
(i) First, WFBW shall pay to the Customer an Initial Payment upon
assignment or sale of an Account to WFBW, and receipt of all documents and forms
described in paragraph 3(h) below and upon fulfillment of all terms precedent to
such sale or assignment as more fully described below.
(ii) After collection of an Account in full by WFBW, WFBW shall pay to
the Customer the amount collected on the Account less: (a) the Initial Payment,
(b) Part Payment(s), and (c) any fees, expenses or charges owed to WFBW as more
fully described herein. This payment shall be made on the Wednesday of the week
following the calendar week in which the full collection of Account is received
by WFBW.
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(iii) WFBW, may at its discretion, after request by the Customer, and
after collection of an Account in an amount which is less than the full amount
due and owing on the Account, make a payment to the Customer of the amount so
collected less: (a) the Initial Payment, (b) any previous Part Payment, and (c)
any amounts owed or to be owed by the Customer to WFBW. WFBW shall consider
making such a payment, if, in WFBW's sole discretion, WFBW determines that
Customer has complied with all the terms and conditions herein, that no Events
of Default have occurred and Customer acknowledges that that there are no
offsets or claims against, or Account Debtor Disputes relating to, any Account
purchased by WFBW. This payment shall be made, on the Wednesday of the week
following the calendar week in which the partial collection on the Account is
received by WFBW.
f. Reporting and Statement of Account: On a weekly basis, or as
otherwise determined by WFBW in its sole discretion, WFBW shall prepare, and
have available for the Customer, an accounting of the purchases, collections,
fees and charges related to this Agreement which have occurred during that week.
Should such a statement of account indicate a deficit balance, the Customer
shall immediately pay to WFBW, the amount of such deficit plus accrued interest
on such deficit balance. Interest shall accrue on any deficit balance at the
annual rate of eighteen percent (18%), calculated on a daily basis, not to
exceed the applicable legal limit, until such deficit is paid in full.
g.Required Forms: When Customer offers Accounts to WFBW for sale, WFBW
shall receive (i) an assignment of Accounts, in a form satisfactory to WFBW and
signed by an authorized representative of Customer, (ii) an original invoice or
such other document acceptable to WFBW in its sole discretion, (iii) a copy of
the Xxxx of Lading, (iv) proof of delivery, (v) contract, purchase order, or
purchase order number which corresponds with such invoice(s), as appropriate to
the business of Customer, (vi) notification of assignment and waiver of offset,
in a form acceptable to WFBW in its sole discretion and (vii) and any other
document which WFBW may require.
h. Labels: Customer shall imprint, label, or otherwise xxxx each
original invoice or other such documentation accepted by WFBW pursuant to
paragraph 3(g)(ii) for each Account being sold to WFBW which indicates that the
Account has been sold to WFBW with the following language:
This invoice has been assigned to and is
payable to:
Xxxxx Fargo Bank West, N.A., Trustee for
The Xxxxx X. Xxxxxx Rollover XXX and,
Xxxx X. Xxxxxxxxxxx
c/o Alpern, Myers, Stuart, Xxxxxxxxxx & Xxxxxxxx,
a Legal Services LLC; Attn: Xxxxxxx Xxxxx
00 X. Xxxxxx Xxxxx, Xxxxx, Xxxxx "X"
Xxxxxxxx Xxxxxxx, XX 00000
For information call 719/000-0000
i. Notification: WFBW may at any time, and at its sole discretion,
notify any Account Debtor of the assignment of the Account and direct the
Account Debtor to make payments directly to WFBW.
4. Representations and Warranties. Customer hereby warrants and
covenants as follows:
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a. Customer is properly licensed, qualified and authorized to operate
the business of OPEC Corp. under the trade name(s) of N/A and Customer's trade
name(s) have been properly filed and published as required by applicable law.
Customer, and the persons executing this document, are duly authorized to
execute and deliver this Agreement and all other documents required to be
executed and delivered hereunder.
b.Customer is solvent, is not a Debtor under the United States
Bankruptcy Code or under the direction of a receiver, and Customer has made and
shall continue to make timely payment on deposit of any tax required to be
deducted and withheld by Customer from the wages of any of its employees.
c. Customer is, at the time of purchase of an Account by WFBW, the
lawful owner of and has good and undisputed title to the Accounts purchased by
WFBW. The Accounts, at the time of purchase are free from any liens, mortgages,
restrictions or encumbrances. The Account is an Acceptable Account as defined
above.
d. Each Account Debtor's business is solvent to the best of Customer's
information and knowledge.
e. Each Account offered for sale to WFBW is an accurate and undisputed
statement of indebtedness owed by Account Debtor to Customer for a certain sum
which is due and payable in 30 days or less, or within such time as is agreed to
in writing by WFBW and Customer for a bona fide sale, delivery and acceptance of
merchandise or performance of services which have been received and finally
accepted by the Account Debtor. Customer has all rights to transfer or sell such
Accounts to WFBW.
f.Customer does not own, control or exercise dominion over, in any way
whatsoever, the Account Debtor or the business of any Account Debtor for whom
Accounts are to be sold by Customer to WFBW.
g. All financial records, statements, books or other documents shown to
WFBW by Customer at anytime, either before or after the signing of this
Agreement are true and accurate,
h. Customer will not under any circumstances or in any manner
whatsoever, interfere with any of WFBW'S rights under this Agreement.
i. Customer will not sell or assign Accounts except to WFBW for the
period of this Agreement, and/or for as long its any obligation to repurchase or
indebtedness whatsoever remains owing by Customer to WFBW.
j. Customer has not transferred, pledged or granted a security interest
in Customer's Accounts or other personal property to any other party which
Customer has not fully disclosed in writing to WFBW. Customer shall not, and
shall not consent to the transfer, pledge or grant a security interest to,
placement of any lien or encumbrance, by any other party on any personal
property or accounts belonging to the Customer for the term of this Agreement
and for as long as customer may be required to repurchase an Account or is
indebted to WFBW hereunder without the written consent of WFBW. Customer shall
provide written notice to WFBW within five business days of Customer obtaining
any knowledge, from any source, of the assertion, filing, recording or
perfection by any means, of any non-consensual lien, claim or encumbrance
against the property of Customer.
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k. Customer will not change or modify the terms of the original invoice
or agreement with the Account Debtor or the order of payment on Accounts sold to
WFBW unless WFBW first consents to such change or modification in writing.
l. Customer will maintain such insurance covering Customer's business
and/or the property of the Account Debtors as customary and adequate for
businesses similar to the business of Customer in an amount as is sufficient to
compensate for reasonably foreseeable loss, and promptly pay all premiums with
respect to the policies covering such insurance. Further, at the request of
WFBW, the Customer shall have WFBW named as loss payee for such insurance.
m. Customer will notify WFBW in writing prior to any change in the
location of Customer's place(s) of business, including the location of the
Customer's inventory or, if Customer has or intends to acquire any additional
place(s) of business, or prior to any change in Customer's chief executive
office or the office or offices where Customer's books and records concerning
Accounts are kept.
n. Customer will immediately notify WFBW in writing of any proposed
change of Customer's name, identity, legal entity, corporate structure, business
dissolution, use of additional trade name(s), and/or any proposed change in any
of officers, principals, partners, and/or owners of Customer and will not effect
any such change without WFBW's written consent.
o. Customer will immediately notify WFBW in writing of the commencement
of any legal proceeding or service of any legal document affecting the Customer
including, but not limited to, any judgments, liens, attachments, garnishments,
complaints, or the filing of a voluntary or involuntary petition under the
United States Bankruptcy Code.
p. There is no action, suit or proceeding at law or in equity or by or
before any governmental instrumentality or other agency now pending, or to the
knowledge of Customer, threatened against or affecting Customer, which if
adversely determined, would have a material adverse effect on the business,
operations, property, assets or condition, financial or otherwise, of Customer.
q. The execution and performance by Customer of the terms and
provisions of this Agreement and the execution and delivery of any other
documents required to be executed and delivered hereunder have been duly
authorized by all requisite company action, and neither the execution and
performance of this Agreement or any other documents required to be delivered
hereunder, will violate any provision of law, any order of any court or other
agency of government, the governing documents of any Customer, or any agreement
or other instrument to which Customer is a party, or by which Customer is bound,
or be in conflict with, result in breach of, or constitute (with due notice or
lapse of time or both) a default under, or result in the creation or imposition
of any lien, charge or encumbrance of any nature whatsoever upon any of the
property or assets of Customer, pursuant to any such agreement or instrument,
except as provided hereunder. Customer agrees that it will execute and perform
all terms hereunder.
5. Promises.
Customer hereby promises as follows:
a. Security Interest/Collateral: As further inducement for WFBW to
enter into this Agreement, Customer gives to WFBW, as collateral for the
repayment of any and all obligations and liabilities whatsoever of Customer to
WFBW, a security interest, under the Uniform Commercial Code, in the following
described property, as defined under the Uniform Commercial Code, hereinafter
collectively called "Collateral": All presently existing or hereafter arising,
now owned or hereafter acquired property including, but not limited to,
accounts, inventory, instruments, documents, contract rights, chattel paper,
general intangibles, investment property, insurance proceeds, and all books and
records pertaining to accounts and all proceeds and products of the foregoing
property, now and hereafter owned by Debtor, or in which Debtor now or hereafter
may have any rights, wherever situated and whenever acquired. Customer shall
execute all and deliver to WFBW any and all documents and instruments as WFBW
may request from time to time, including, without limitation, UCC financing
statements or amendments.
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b. Credit Problems: If Customer asserts that nonpayment of an Account
is due to a Credit Problem, the Customer shall provide documentation
establishing that such non payment is due solely to a Credit Problem
satisfactory to WFBW, in its reasonable discretion, within ten days of receipt
of written notice by WFBW of the nonpayment. If WFBW is not satisfied that
nonpayment is solely due to a Credit Problem, then customer shall be obligated
to repurchase the Account by paying the Repurchase Price within ten days of
receipt of written demand by WFBW.
c. Sole Property: Once WFBW has purchased an Account, the payment from
the Account Debtor as to that Account is the sole property of WFBW.
d. Misdirected Payment: Customer shall hold in trust and safekeeping,
as the property of WFBW, and immediately turn over to WFBW the original check or
other form of payment received by Customer, whenever any payment on an Account
purchased by WFBW comes into Customer's possession. Should Customer come into
possession of a check or other form of payment consisting of payments upon
Accounts purchased by WFBW and Accounts not purchased by WFBW, Customer shall
turn over said check or other form of payment to WFBW. After receipt of good
funds therefor, WFBW shall apply the funds, first to those Accounts purchased by
WFBW and, second, to any amounts owed to WFBW. If no Default exists hereunder,
any remaining balance shall be paid to the Customer. Further, Customer shall
hold in trust and safekeeping, as the property of WFBCl, and immediately turn
over to WFBW, any goods or inventory returned to, reclaimed or repossessed by
the Customer which are covered by an Account purchased by WFBW. Customer shall
pay a misdirected payment fee in the amount of fifteen percent (15%) of the
amount of any payment on account of a Purchased Account which has been received
by Customer and not delivered in kind to WFBW on the next business day following
the date of receipt by Customer.
e. Financial Records: Customer will furnish financial statements and
information as requested, including, but not limited to, satisfactory proof of
payment and/or compliance with all Federal, State and/or local tax requirements
to WFBW, as requested from time to time, at least once per month, or once per
week if Customer is in default.
f. Book Entry: Customer shall, immediately upon sale of Accounts to
WFBW, make proper entries on its books and records disclosing the absolute sale
of said Accounts to WFBW, including the proper inclusion of the language stated
in paragraph 3(h) above, on said books and records and other documents as so
directed by WFBW.
g. The Customer hereby agrees to pay WFBW, on demand, audit fees in
connection with any audits or inspections conducted by WFBW of any Collateral or
the Customer's operations or business at the rates established from time to time
by WFBW as its audit fees, together with all actual out-of-pocket costs and
expenses incurred in conducting any such audit or inspection.
h. Power of Attorney: In order to carry out this Agreement and avoid
unnecessary notification of Account Debtors, customer irrevocably appoints WFBW,
or any person designated by WFBW, as its special attorney in fact, or agent,
with power to:
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i. strike out Customer's address on all Accounts mailed to Account
Debtors and note WFBW's address on all Accounts.
ii, receive, open and dispose of all mail addressed to Customer, or to
Customer's trade name sent to WFBW's address.
iii. endorse the name of Customer or Customer's trade name on any
checks or other evidences of payment that may come into the possession of WFBW
on Accounts purchased by WFBW or pursuant to default, and on any other documents
relating to any of the Accounts or to Collateral.
iv. in Customer's name, or otherwise, demand, xxx for, collect, and
give releases for any and all monies due or become due on Accounts.
v. compromise, prosecute, or defend any action, claim or proceeding as
to said Accounts.
vi. from time to time offer a trade discount to Customer's Account
Debtor exclusive of Customer's normal business custom with said Account Debtor.
vii. initiate electronic debit or credit entries through the ACH system
to Customer's account or any other deposit account maintained by Customer
wherever located.
viii. do any and all things necessary and proper to carry out the
purposes intended by this Agreement.
The authority granted to WFBW under this provision shall remain in full force
and effect until all assigned Accounts are paid in full and any indebtedness of
Customer to WFBW is discharged.
i. Double Payments: Should WFBW receive a double payment on an Account
or other payment which is not identified, WFBW shall carry these sums as open
items in its accounting and shall return any double payment to the payor or
apply such unidentified payment pursuant to the terms hereunder upon proper
identification and documentation.
j. Hold Harmless: Customer shall hold WFBW harmless against any Account
Debtor ill will arising from WFBW's collecting or attempting to collect on any
Accounts.
k. Taxes: Should any excise, sale, use or other tax be imposed by any
federal, state or local authority requiring a deduction or withholding from the
proceeds of sale of Accounts, or if the Account Debtor is authorized to withhold
and deduct such tax or levy, then the Customer shall immediately pay WFBW the
amount of the tax or levy so withheld, and the Customer shall indemnify and hold
WFBW harmless from any loss or expense on account of such tax.
l. Costs and Expenses: Except as is prohibited by law, the Customer
agrees to pay on demand all costs and expenses, including (without limitation)
attorneys' fees, accounting and bookkeeping fees incurred by WFBW in connection
with this Agreement and any other related document or agreement, and the
transactions contemplated hereby, including without limitation all such costs
and expenses and fees incurred in connection with the negotiation, due
diligence, preparation, execution, amendment, administration, performance,
collection and enforcement of the obligations and all such documents and
agreements and the creation, perfection, protection, satisfaction, foreclosure
or enforcement of any security interest granted hereunder, the collection of any
Account or any obligation owed by Customer to WFBW.
m. Minimum Fee: Customer shall pay a Minimum Fee per month in the
amount of $9,000 which shall be due on the 15th day of the subsequent month for
2 months from the date hereof and for 2 months from any extension agreement.
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6. Further Promises. WFBW and Customer hereby promise the following:
a. Customer will immediately notify WFBW of any disputes between
Account Debtor and Customer or the return of any product by Account Debtor to
Customer.
b. Customer will repurchase any Account subject to an Account Debtor
Dispute of any kind whatsoever or as required herein.
c. WFBW may settle any dispute regarding an Account with an Account
Debtor. Such settlement does not relieve Customer of final and full
responsibility for such Accounts.
d. If Customer does not fully settle the dispute with immediacy, the
Customer shall repurchase the disputed account from WFBW for the Repurchase
Price. WFBW need not tender any invoice or document, besides the statement
ascribed in 6(j) below, for such repurchase.
e. Customer shall not breach any warranties or promises in this
Agreement with regard to the unpaid Account or Account Debtor from whom payment
on the Account is due.
f. Customer shall not intentionally contribute to, or aggravate any
Credit Problem of an Account Debtor.
g. Customer and Account Debtor shall not be involved in a dispute of
any kind, regardless of validity during any time period covered by this
Agreement.
h. Account Debtor shall not assert a claim or loss or offset of any
kind against Customer or WFBW during any time period covered by this Agreement.
i. If documents submitted by Customer to WFBW for the purchase of an
Account are mistaken, fraudulent, incorrect and/or erroneous, or if the Customer
fails to submit any document required by WFBW under this Agreement for the
purchase of that Account, then said Account may be deemed an Account Debtor
Dispute and the Customer shall repurchase said Account and pay the Repurchase
Price as stated herein.
j. WFBW shall identify in writing all repurchases and provide to
Customer a written statement of the Accounts subject to repurchase. The Customer
shall pay the Repurchase Price for such Accounts within 10 days of the date of
the written statement.
k. Upon the occurrence of any Account Debtor Dispute, Customer shall
immediately pay to WFBW the Repurchase Price for any and all Accounts so
disputed.
7. Defaults. Any one or more of the following shall be an Event of Default
hereunder:
a. Customer shall fail to pay any indebtedness to WFBW when due or
repurchase any Account when required hereunder.
b. Customer shall breach any term, provision, promise, warranty or
representation under this Agreement, or under any other agreements, contracts,
between Customer and WFBW or obligation to WFBW.
c. The appointment of any receiver or trustee of all or a substantial
portion of the assets of Customer.
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d. Customer shall become insolvent or unable to pay debts as they
mature, shall make a general assignment for the benefit of creditors or shall
voluntarily file a petition under the United States Bankruptcy Code or any
similar law.
e. Any involuntary petition in bankruptcy shall be filed against
Customer and shall not be dismissed within 60 days or an order for relief is
entered against Customer under the United States Bankruptcy Code.
f. Any levies, attachment, executions, tax assessments or similar
process shall be issued against the Collateral.
g. Any financial statements, profit and loss statements, or schedules,
other statements or documents furnished by customer to WFBW are false or
incorrect in any material respect.
8. Remedies. In the event of an occurrence of an Event of Default, WFBW may do
any one or more of the following:
a. Declare any indebtedness including outstanding purchased Accounts
and the Minimum fee for a three-month period immediately due and payable.
b. Notify any Account Debtor and take possession of Collateral and
collect any Accounts without judicial process.
c. Require Customer to assemble the Collateral and the records
pertaining to Accounts and make them available to WFBW at a place designated by
WFBW.
d. Enter the premises of Customer and take possession of the Collateral
and of the records pertaining to the accounts and any other Collateral.
x. Xxxxx extensions, compromise claims and settle Accounts for less
than face value, all without prior notice to Customer.
f. Use, in connection with any assembly or disposition of the
Collateral any trademark, trade name, trade style, copyright, patent right or
technical process used or utlilized by Customer.
g. Hold Customer liable for any deficiency for any amounts due and
owing to WFBW.
h. Require the Customer to repurchase any and all Accounts as so
requested by WFBW and pay the Repurchase Price for those Accounts as provided
herein.
i. Cease making reports or accountings to the Customer as otherwise
required by this Agreement.
9. Termination. This Agreement shall continue in full force and effect
until the earlier of 2 months from the date of this Agreement, upon written
agreement of both parties hereto or upon 30 days written notice by one of the
parties hereto, or upon default by the Customer. This Agreement shall
automatically continue for subsequent 2 months period unless sixty days prior to
the termination date, the Customer notifies WFBW in writing that the Customer
wishes to terminate this Agreement. On the date of termination, all obligations
owing by the Customer to WFBW shall become immediately due and payable in full
without further notice or demand.
10. Post Termination. After termination, Customer shall be liable to
WFBW for the full and prompt payment of the full amount of Accounts sold to WFBW
which are then outstanding and unpaid, disputed or undisputed, as well as any
other indebtedness or obligations owed to WFBW by Customer including the Minimum
Fee through 2 months from the date of this agreement or extension thereof. WFBW
continues and shall continue to have a security interest in the Collateral of
Customer until all amounts owed to WFBW by Customer are paid in full or are
satisfied.
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11. Miscellaneous.
a. Binding on Future Parties: This Agreement inures to the benefit of
and is binding upon the heirs, executors, administrators, successors and assigns
of the parties thereto.
b. Cumulative Rights: No failure or delay by WFBW in exercising any
right, power or remedy under the Agreement or documents given in connection with
the Agreement shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy under the
Agreement. The remedies provided herein are cumulative and not exclusive of any
remedies provided by law.
c. Waiver: WFBW may not waive its rights and remedies unless the waiver
is in writing and signed by WFBW. A waiver by WFBW of a right or remedy under
this Agreement on one occasion is not a waiver of the right or remedy on any
subsequent occasion.
d. Choice of Law: This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado.
e. Invalid Provisions: Any provision of this Agreement which is
prohibited or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof.
f. Entire Agreement: This instrument contains the entire Agreement
between the parties. Except as otherwise provided herein, any addendum or
modification hereto must be signed by both parties.
g. Effective: This Agreement becomes effective when it is accepted and
executed by an authorized officer of WFBW and shall be binding upon and inure to
the benefit of the Customer and WFBW and their respective successors and
assigns, except that the Customer shall not have the right to assign its rights
thereunder or any interest therein without WFBW's prior written consent. This
Agreement together with the documents given in accordance herewith, comprises
the complete and integrated agreement of the parties on the subject matter
hereof and supersedes all prior agreements, written or oral, on the subject
matter hereof. Any prior Loan Agreements between the parties remain in full
force and effect and are not superceded hereby.
h. Information: Without limiting WFBW's right to share information
regarding the Customer and its affiliates with WFBW's agents, accountants,
lawyers and other advisors, Xxxxx Fargo Corporation, and all direct and indirect
subsidiaries of Xxxxx Fargo Corporation and other persons WFBW deems
appropriate, WFBW may exchange any and all information it may have in its
possession regarding the Customer and its Affiliates, and the Customer waives
any right of confidentiality it may have with respect to such exchange of such
information.
i. Indemnification: Customer agrees to indemnify and hold WFBW harmless
from any and all liability, claims and damages, including attorneys' fees, costs
of suit and interest which WFBW may incur as a result of the failure of Customer
to pay withholding taxes due and payable to any taxing authority.
11
j. Notices hereunder: All notices and communications hereunder shall be
given or made to the parties at their respective addresses set forth below, or
at such other address as the addressee may hereafter specify for the purpose of
written notice to the other party hereto. Such notices and communications shall
be effectively given by WFBW when and if given in writing and delivered to the
address set forth herein, delivered by facsimile or duly deposited in the mails
with first-class postage prepaid.
k. Jurisdiction: The parties hereby (i) consent to the personal
jurisdiction of the state and federal courts located in the State of Colorado in
connection with any controversy related to this Agreement; (ii) waive any
argument that venue in any such forum is not convenient, (iii) agree that any
litigation initiated by WFBW or the Customer in connection with this Agreement
shall be venued in either the District Court of El Paso County, or the United
States District Court, District of Colorado, and (iv) agree that a final
judgment in any such suit action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
l. Waiver of Jury Trial: THE CUSTOMER HEREBY IRREVOCABLY WAIVES ALL
RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF, BASED ON OR PERTAINING TO THIS AGREEMINT.
Executed and accepted this ____ day of , 2001.
-----------------------
12
OPEC Corp., a Colorado corporation Xxxxx Fargo Bank West, N.A., Trustee
Of the Xxxxx X. Xxxxxx Rollover XXX
By:
----------------------------------------- By:
Xxxxxx X. Xxxxxxxx, President -----------------------------------------
1880 Office Club Pt. #2000 Xxxxx X. Xxxxxxx, Xx. Vice President
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000 c/o Alpern, Myers, Stuart, Xxxxxxxxxx & Xxxxxxxx
000-000-0000 (phone) a Legal Services, LLC; Attn: Xxxxxxx Xxxxx
000-000-0000 (facsimile) 00 X. Xxxxxx Xxxxx, Xxxxx "X"
Xxxxxxxx Xxxxxxx, XX 00000
000-000-0000 (phone)
000-000-0000 (facsimile)
--------------------------------------------
Xxxx X. Xxxxxxxxxxx
c/o Alpern, Myers, Stuart, et al
Attn: Xxxxxxx Xxxxx
00 X. Xxxxxx Xxxxx, Xxxxx "X"
Xxxxxxxx Xxxxxxx, XX 00000
000-000-0000 (phone)
000-000-0000 (FAX)
STATE OF COLORADO )
) ss.
COUNTY OF EL PASO )
Subscribed and sworn to before me this ___ day of December, 2001, by
OPEC Corp., a Colorado corporation by Xxxxxx X. Xxxxxxx, its President.
My commission expires:
---------------------
___________________
Notary Public
STATE OF COLORADO )
) ss.
COUNTY OF EL PASO )
Subscribed and sworn to before me this ___ day of December, 2001, by
Xxxxx Fargo Bank West, N.A., by Xxxxx X. Coffellt, its Senior Vice-President.
My commission expires:
---------------------
____________________
Notary Public
STATE OF COLORADO )
) ss.
COUNTY OF EL PASO )
Subscribed and sworn to before me this ___ day of December, 2001, by
Xxxx X. Xxxxxxxxxxx.
My commission expires:
---------------------
___________________
Notary Public
STATE OF COLORADO )
) ss.
COUNTY OF EL PASO )
