COMMERCIAL FINANCING AGREEMENT
Exhibit
10.1
Commercial
Financing Agreement (the "Agreement") made this 11th day of
February 2010 between PURE
EARTH MATERIALS, INC., a Pennsylvania corporation, with an office for the
transaction of business at 0000 Xxxx Xxxxxx, Xxxxxxxxx, XX, 00000, PEI DISPOSAL GROUP, INC., a
Delaware corporation,
with an office for the transaction of business at 0000 Xxxx Xxxxxx, Xxxxxxxxx,
XX, 00000, PURE EARTH
TRANSPORTATION & DISPOSAL, INC., a Delaware corporation, with an office for the
transaction of business at 0000 Xxxx Xxxxxx, Xxxxxxxxx, XX, 00000, and PURE EARTH RECYCLING (NJ), INC.,
a Delaware corporation, with an office for the
transaction of business at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxx, XX, 00000 (jointly,
severally and collectively, the "Company"), and XXXXXX CAPITAL CORPORATION, an
Alabama corporation with offices for the transaction of business located at 000
Xxxxxxx Xxxxxx, XX, XX, 00000; 00 Xxxxx Xxxxxx – Xxxxxxxx X, Xxxxxxxxxx, XX
00000; and 0000 Xxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000 ("Xxxxxx
Capital"). Company and Xxxxxx Capital agree and shall be legally
bound as follows:
1. Purpose
of Agreement. Company desires to obtain short-term financing by selling,
transferring, setting over and assigning to Xxxxxx Capital certain accounts
receivable and invoices held by Company in return for Xxxxxx Capital making a
Line of Credit available to the Company.
2. Definitions.
2.1 “Accommodation
Party” shall have the meaning ascribed thereto in the Security
Agreement.
2.2 "Account
Receivable" shall mean any right to payment for goods sold, or leased, and
delivered, or services rendered, which is not evidenced by an instrument or
chattel paper.
2.3. “Advance Percentage”
shall generally mean eighty-five percent (85%) with Xxxxxx Capital’s reserved
right to reduce such Advance Percentage with respect to a particular account in
its reasonable discretion.
2.4
“Available Advance Amount” shall mean the amount of funds available for the
Company to borrow from Xxxxxx Capital under the Line of Credit, and shall be
equal to the product obtained by multiplying the Advance Percentage times the
sum of all Eligible Accounts which have not been paid, but in no event shall the
Available Advance Amount exceed $5,000,000.00.
2.5 "Customer"
shall mean Company's customer or account debtor.
2.6 "Collateral"
shall have the meaning ascribed thereto in the Security Agreement.
2.7 "Customer
Dispute" shall mean a claim or disagreement, by Customer against Company at any
time, of any kind whatsoever, whether valid or invalid that reduces the amount
collectible from a Customer by Xxxxxx Capital.
2.8
“Default” shall have the meaning set forth in Section 24 hereof.
2.9
“Eligible Accounts” shall mean the net amount of Purchased Receivables which at
all times continue to be acceptable to Xxxxxx Capital in the exercise of its
reasonable business judgment, less, without duplication, (i) the sum of
discounts, actual returns, claims, disputes, deductions, credits and allowances
of any nature (ii) the amount at any time that the aggregate outstanding
Accounts Receivable owing by an account debtor exceed 20% of the aggregate
amount of all Accounts Receivable of the Company (with ineligibility being
limited to such excess), and (iii) the amount of any Account Receivable that is
the subject of a Customer Dispute.
2.10
“Line of Credit” shall mean the Line of Credit described on Exhibit “B” which
Xxxxxx Capital is making available to the Company.
2.11 “Lockbox Account” shall
mean the account established and maintained by Xxxxxx Capital for the purpose of
receiving collections on account of any Accounts Receivable.
2.12 “Material Accommodation
Party” shall mean and refer to Pure Earth, Inc., New Nycon, Inc., Pure Earth
Environmental, Inc., Rezultz, Incorporated, and Echo Lake Brownfields, LLC.,
jointly and severally.
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2.13 “Misdirected Payment”
shall mean any payment received by the Company, its principals, agents or
employees instead of Xxxxxx on any Account Receivable listed on the Invoice
Schedule or otherwise sold to Xxxxxx Capital pursuant to Section 9 and Section
21 of this Agreement.
2.14 “Obligations” shall have the
meaning set forth in Section 15 hereof.
2.15 “Purchased Receivables” shall mean
the Accounts Receivable purchased by Xxxxxx Capital and set forth on an Invoice
Schedule.
2.16 “Security Agreement” shall mean
that certain Security Agreement, dated the date hereof, by and among the
Company, the Accommodation Party and Xxxxxx Capital.
2.15 "Warranty"
shall mean to guarantee, as a material element of this
agreement. Each separate warranty herein shall be deemed to be an
independent condition to Xxxxxx Capital's duties and obligations under this
Agreement.
3. Tender of
Accounts Receivable; Invoices.
3.1 The
Company will tender to Xxxxxx Capital for purchase pursuant to this Agreement
all of the Accounts Receivable from its Customers with respect to goods sold and
delivered to, or services performed for, such Customers by the Company by
delivering to Xxxxxx Capital true and correct copies of all invoices to such
Customers promptly after creating and forwarding said
invoices to the Company's Customers. All invoices sent by
the Company to its Customers shall include a notice by the Company to its
Customers, in the form prescribed by Xxxxxx Capital, of the assignment of
payment of said invoices to Xxxxxx Capital.
3.2 In
each instance where the Company delivers its Accounts Receivable to Xxxxxx
Capital, the Company must simultaneously deliver to Xxxxxx Capital a
certification that the original invoices have been mailed to the Customers, a
copy of such invoices, and satisfactory proof of shipment or delivery of goods
or services to which the Accounts Receivable relate.
3.3 Xxxxxx
Capital will conduct such examination, verification, and credit investigation of
the invoices and the account debtors as it considers necessary, and will notify
the Company as to which of the individual Accounts Receivable tendered by the
Company, if any, Xxxxxx Capital elects to purchase from the Company (which shall
be determined within three (3) business day after tender by the Company with
respects to Accounts Receivables from Customers as to which Xxxxxx Capital has
not previously purchased Accounts Receivables, and within one (1) business day
after tender by the Company with respect to Accounts Receivables from Customers,
as to which Xxxxxx Capital has previously purchased Accounts
Receivable). Xxxxxx Capital shall have the absolute right, in its
reasonable commercial judgment, to reject any or all of the Accounts Receivable
tendered to it by the Company. From time to time Xxxxxx Capital’s
underwriting department may ask a Customer to sign an invoice verification
notice in a form substantially the form annexed hereto as Exhibit
C.
4. Assignment. Those
Accounts Receivable which Xxxxxx Capital elects to purchase from the Company
shall be listed in an "Invoice Delivery Schedule", substantially in the form
annexed hereto (such form, together with any schedules and attachments thereto
is hereinafter referred to as an "Invoice Schedule"), executed by the Company
and accepted by Xxxxxx Capital from time to time throughout the term of this
Agreement. Upon acceptance by Xxxxxx Capital of an Invoice Schedule,
the Company shall have been deemed to have sold, assigned, transferred, conveyed
and delivered to Xxxxxx Capital, and Xxxxxx Capital shall be deemed to have
purchased and received from the Company, all right, title, and interest of the
Company in and to the Accounts Receivable listed on the Invoice
Schedule. Upon the assignment of an Account Receivable, Xxxxxx
Capital shall have all of the rights of an unpaid seller of any goods, the sale
of which gives rise to each receivable, including the right of stoppage in
transit, reclamation and replevin. Notwithstanding the foregoing, if
the Company or Xxxxxx Capital fails to include in any Invoice Schedule a
particular Account Receivable tendered by the Company to Xxxxxx Capital, but
Xxxxxx Capital nonetheless includes such Account Receivable in the Available
Advance Amount, then Xxxxxx Capital shall be presumed conclusively to have
purchased, and the Company shall be presumed conclusively to have sold, such
Account Receivable pursuant to this Agreement, and such Account Receivable shall
be governed by the terms and conditions of this Agreement. It is
understood and agreed that Xxxxxx Capital is not assuming any of the
responsibilities or obligations of the Company under such Accounts Receivable,
but that it is simply taking an assignment of the right to be paid on such
Accounts Receivable which the Company has fulfilled in the ordinary course of
its business operations.
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5. Purchase
Price, Allocation of Collections. Xxxxxx Capital agrees
to buy the Accounts Receivable set forth on the Invoice Schedule (“Purchased
Receivable(s)”) from the Company for the face value of each such acceptable
invoice, less trade and cash discounts allowable to or taken by the Company’s
customers (the "Purchase Price") . The Purchase Price for each
Purchased Receivable, shall be paid to the Company at the time Xxxxxx Capital
collects such Purchased Receivable (in whole or in part) by application and
credit of such collected amounts against and in reduction of the Company’s
outstanding Obligations or if there is no Obligation then outstanding, then by
delivery to the Company. The Company hereby irrevocably authorizes
Xxxxxx Capital to apply all such collected amounts in this
manner.
6. Xxxxxx
Capital to Administer the Collection of Accounts
Receivable. Commencing on the date of this Agreement,
Xxxxxx Capital shall administer the collection of all Accounts Receivable
originated by the Company and shall forward an Aged Accounts Receivable Schedule
to the Company weekly. Xxxxxx Capital shall have the right of
endorsement on all payments received in connection with each Account Receivable
and the Company hereby appoints Xxxxxx Capital the attorney-in-fact and agent of
the Company for this purpose, which appointment is coupled with an interest and
is irrevocable during the term of this Agreement. Xxxxxx
Capital shall have no liability to the Company for any mistake in the
application of any payment received by it with respect to any Account
Receivable, so long as it acts in good faith without gross
negligence. All proceeds of Purchased Accounts and any other accounts
or other proceeds of Collateral collected by or deposited with Xxxxxx Capital in
the Lockbox or otherwise, will be credited against and in reduction of the
outstanding balance of the Obligations as and when received, with the
understanding that all credits given as herein provided shall be conditioned
upon final payment to Xxxxxx Capital in cash or solvent credits of the item
giving rise thereto and regarding any item that is not so paid, the amount of
any credit given shall be reversed, whether or not the item is
returned.
7. Cross-Collateralization. If
a "Default" (as defined in this Agreement) shall have occurred and be
continuing, Xxxxxx Capital shall have the right, which may be exercised in its
sole and absolute discretion at any time and from time to time during the
continuance of such Default, to apply all amounts collected with respect to
Accounts Receivable as follows, before any payment from such collections shall
be made to the Company: (i) against the Obligations; (ii) to the payment of all
fees accrued hereunder, whether or not such fees have become due and payable
pursuant to the terms of this Agreement; and (iii) to the payment of
any and all other liabilities and obligations of the Company to Xxxxxx Capital
pursuant to this Agreement, the "Security Agreement" and any other agreement
entered into between Xxxxxx Capital and the Company concurrently herewith (the
"Transaction Documents"). For purposes of this paragraph, "Company"
shall mean and include each person named as the Company in the preamble of this
Agreement, jointly and severally.
8. Over-Advances. While
it is anticipated that the amount of the outstanding Obligations shall be less
than the Available Advance Amount, Xxxxxx Capital may, as part of this
Commercial Financing Agreement and to ease the Company's short-term cash-flow
problems, permit the Company to carry an Over-Advance. An
Over-Advance is defined as the amount the Obligations are in excess of the
current Available Advance Amount. If the Over-Advance is created by
the Company requesting an advance on the Line of Credit in excess of the
Available Advance Amount, then upon the establishment of such Over-Advance
amount, Xxxxxx Capital, in its sole judgment, shall have the right to charge the
Company a one-time processing and administrative fee of up to four percent for
each such Over-Advance. If the Over-Advance is created by the
reduction of the Available Advance Amount, then upon the establishment of each
such Over-Advance amount, Xxxxxx Capital, in its sole judgment, shall have the
right to charge the Company a one-time processing and administrative fee of up
to two percent for each such Over-Advance amount that will be outstanding for
more than three (3) business days and less than one week and four percent of
each such Over-Advance amount so established for periods extending for more than
one week. Notwithstanding anything contained herein to the contrary
(but subject to the specific written terms of any such Over-Advance arrangement
entered into between the Company and Xxxxxx Capital), Xxxxxx Capital may
terminate the Over-Advance facility at any time without notice to the Company as
it deems fit. Interest shall accrue on the outstanding Over-Advance
balance at the Interest Rate set forth on Exhibit “B”.
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9. Collection
of Accounts Receivable.
9.1 The
Company will instruct all of its Customers obligated with respect to its
Accounts Receivable to mail or deliver payments on such Accounts Receivable
directly to Xxxxxx Capital at its address set forth in the preamble of this
Agreement or to such other address that Xxxxxx Capital may specify in a written
notice to the Company.
PURE
EARTH MATERIALS, INC.’s invoices shall bear the following instructions
prominently displayed in large bold type:
“This
invoice has been assigned to Xxxxxx Capital Corporation for the account of PURE
EARTH MATERIALS, INC. and must be paid c/o Porter Capital Corporation, P. O. Xxx
00000, Xxxxxxxxxx, XX 00000.” Remittances should be made payable
to
PURE
EARTH MATERIALS, INC.
c/o
Porter Capital Corporation
X.X. Xxx
00000
Xxxxxxxxxx,
XX 00000
PEI
DISPOSAL GROUP, INC.’s invoices shall bear the following instructions
prominently displayed in large bold type:
“This
invoice has been assigned to Xxxxxx Capital Corporation for the account of PEI
DISPOSAL GROUP, INC. and must be paid c/o Porter Capital Corporation, P. O. Xxx
00000, Xxxxxxxxxx, XX 00000.” Remittances should be made payable
to
PEI
DISPOSAL GROUP, INC.
c/o
Porter Capital Corporation
X.X.
Xxx 00000
Xxxxxxxxxx,
XX 00000
PURE
EARTH TRANSPORTATION & DISPOSAL, INC.’s invoices shall bear the following
instructions prominently displayed in large bold type:
“This
invoice has been assigned to Xxxxxx Capital Corporation for the account of PURE
EARTH TRANSPORTATION & DISPOSAL, INC. and must be paid c/o Porter Capital
Corporation, P. O. Xxx 00000, Xxxxxxxxxx, XX 00000.” Remittances
should be made payable to
PURE
EARTH TRANSPORTATION & DISPOSAL, INC.
c/o
Porter Capital Corporation
X.X.
Xxx 00000
Xxxxxxxxxx,
XX 00000
PURE
EARTH RECYCLING (NJ), INC.’s invoices shall bear the following instructions
prominently displayed in large bold type:
“This
invoice has been assigned to Xxxxxx Capital Corporation for the account of PURE
EARTH RECYCLING (NJ), INC. and must be paid c/o Porter Capital Corporation, P.
O. Xxx 00000, Xxxxxxxxxx, XX 00000.” Remittances should be made
payable to
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PURE
EARTH RECYCLING (NJ), INC.
x/x
Xxxxxx Xxxxxxx Xxxxxxxxxxx
X.X.
Xxx 00000
Xxxxxxxxxx,
XX 00000
Such
instructions shall not be rescinded or modified without Xxxxxx Capital's prior
written consent. If, despite such instructions, the Company shall
receive any payments with respect to any Accounts Receivable purchased by Xxxxxx
Capital, it shall receive such payments in trust for the benefit of Xxxxxx
Capital, shall segregate such payments from its other funds, and shall deliver
or cause to be delivered (with delivery deemed to have been made when same are
deposited with a nationally recognized overnight courier) to Xxxxxx Capital, in
the same form as so received with all necessary endorsements, all such payments
received as soon as practicable, but in no event later than three (3) business
days after the receipt thereof by the Company. If the Company fails
to turn over to Xxxxxx Capital any checks or other form of payment received by
it, or in the event the Company deposits any such checks or payments into its
own account, the Company must deliver to Xxxxxx Capital either the payment in
the identical form received or the cash equivalent of the amount of the
Misdirected Payment within three (3) business days. If the Company
fails to deliver such value within said three (3) business days or if the
Company shall willfully present any invoice to Xxxxxx Capital for an advance
against which merchandise has not been shipped, services have not been rendered
or work performed (an “Invalid Invoice”), this shall be an event of default of
this contract, and in addition, as the exact costs to Xxxxxx Capital of such
actions by the Company are difficult if not impossible to calculate, the Company
shall pay to Xxxxxx Capital the entire invoice amount at once plus liquidated
damages equal to ten percent of the amount so deposited or the Invalid Invoice
amount submitted to Xxxxxx Capital (the “Misdirected Payment
Fee”). The enforcement or non-enforcement of these damages shall not
be considered a waiver of any remedy or default, nor shall it be construed a
precedent for future discretionary actions available to Xxxxxx
Capital.
9.2 Xxxxxx
Capital shall have the full power and authority to collect each Account
Receivable, through legal action or otherwise, and may, in its sole discretion,
settle, compromise, or assign (in whole or in part) the claim for any of the
Accounts Receivable, or otherwise exercise any other right now existing or
hereafter arising with respect to any of the Accounts Receivable, if such action
will facilitate collection. The amount of any reduction resulting from any such
settlement, compromise, assignment or other collection action shall reduce the
balance otherwise due to the Company hereunder. The Company
acknowledges and agrees that Xxxxxx Capital shall have the sole and exclusive
right to commence legal action to collect any Account Receivable. To
allow an interval for checks to clear the federal banking system, Xxxxxx Capital
shall have the right to extend constructive receipt of payments that Xxxxxx
Capital receives on behalf of the Company, with respect to Purchased Accounts
only, by three (3) business days for in state checks received and for out of
state checks received.
10. Payment
of Expenses and Taxes; Indemnification. The Company will (a)
pay or reimburse Xxxxxx Capital for all of Xxxxxx Capital's out-of-pocket costs
and expenses incurred in connection with the preparation and execution of, and
any amendment, supplement or modification to, the Transaction Documents and the
consummation of the transactions contemplated hereby and thereby, including,
without limitation, the reasonable fees and disbursements of counsel to Xxxxxx
Capital, (b) pay or reimburse Xxxxxx Capital for all its costs and expenses
incurred with the enforcement or preservation of any rights under the
Transaction Documents, and the verification of the Accounts Receivable and the
credit worthiness of the Customers, including without limitation, reasonable
fees and disbursements of counsel to Xxxxxx Capital; (c) pay, indemnify, and
hold Xxxxxx Capital harmless from, any and all recording and filing fees and any
and all liabilities with respect to, or resulting from, any delay in paying any
stamp, excise, and other taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation of any
of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, the
Transaction Documents; (d) pay for monthly statements at $0.73 each plus all
postage expended by Xxxxxx Capital to mail invoices and otherwise collect the
accounts; (e) pay the fees and interest set forth on Exhibit “B” attached hereto
and made a part thereof; (f) pay for field examinations at the rate of eight
hundred fifty dollars per person per day plus expenses, provided however unless
there exists a Default hereunder the Company shall only be obligated to pay for
one field examination during each term of this Agreement; (g) pay, indemnify and
hold Xxxxxx Capital harmless from and against any and all claims, liabilities,
obligations, losses, potential losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever,
whether threatened, pending or determined (including attorney's fees and court
costs now or hereafter arising from this Agreement or any activities of the
Company (referred to as the "indemnified liabilities"); provided that the
Company shall have no obligation hereunder to Xxxxxx Capital with respect to
indemnified liabilities arising from the gross negligence or willful misconduct
of Xxxxxx Capital. The covenants of this paragraph shall survive the
termination of this Agreement.
Commercial
Financing Agreement
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COMMERCIAL
FINANCING AGREEMENT
11. Term.
11.1 This
Agreement shall be effective for a period commencing on the date hereof and
continuing until the close of business on the last day of July, 2010 (the
"Initial Term"). This Agreement shall be deemed to be automatically
renewed for an additional semi-annual term at the expiration of the Initial
Term, and thereafter to be automatically renewed for succeeding semi-annual
terms at the end of the first and each succeeding renewal term, unless the
Company shall deliver written notice of cancellation to Xxxxxx Capital not
earlier than ninety days and not later than thirty days prior to the expiration
date of the Initial Term or any succeeding renewal term. No such
termination shall terminate or otherwise affect Company's obligations hereunder
incurred or accrued prior to such termination.
11.2 The
Company shall pay Xxxxxx Capital a combined application and due diligence fee in
the amount of $395.00 on the first day of each term hereunder, which amount, at
the option of Xxxxxx Capital, may be deducted from any amounts otherwise due
from Xxxxxx Capital to the Company.
11.3 The
representations, warranties and covenants of the Company and the remedies of
Xxxxxx Capital for a breach of such representations, warranties and/or
covenants, shall survive the termination of this Agreement, and such termination
shall not affect the rights of Xxxxxx Capital to enforce its remedies under the
Transaction Documents against the Company or against any Collateral after a
default by the Company. Upon termination, the Company shall remain
fully responsible to Xxxxxx Capital for the Obligations and any Purchased
Receivables purchased prior to such termination. Additionally, Xxxxxx
Capital shall maintain its security interest in the Collateral until all
Obligations to Xxxxxx Capital have been paid in full. Both parties
agree that they will sign mutual releases on the termination of this Agreement
and the satisfaction of all debt and obligations by the Company to Xxxxxx
Capital; and that providing the debt and all obligations to Xxxxxx have been
paid in full, Xxxxxx will promptly sign UCC termination statements reasonably
necessary for the Company’s and for each Accommodation Party’s
use.
12. Facility
Fee; Credits.
12.1 The
interest, fees and charges set forth on Exhibit “B” have been established after
negotiations between the Company and Xxxxxx Capital on the assumption that the
Company will tender to Xxxxxx Capital for purchase hereunder acceptable Accounts
Receivable averaging at least two million five hundred thousand dollars a month
(the "Base Purchase Amount") during the Initial Term and each renewal
term.
12.2 An
origination/commitment or underwriting fee of one-half of one percent of the
Line of Credit established in Exhibit “B” shall be paid by the Company to Xxxxxx
Capital at first funding during the Initial Term and a renewal or underwriting
fee of one-half of one percent of the Line of Credit shall be paid at the
beginning of each succeeding term.
13. Disputed
Accounts Receivable, Re-Purchase, etc.
13.1 Notice of
Dispute. Company agrees to promptly notify Xxxxxx Capital of
any Customer Dispute between Company and any of its Customers.
Commercial
Financing Agreement
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COMMERCIAL
FINANCING AGREEMENT
13.2 Re-purchase of Disputed Purchased
Receivable. Xxxxxx Capital shall be permitted to immediately
reduce the Available Advance Amount by either i) the disputed portion of a
Purchased Receivable subject to a Customer Dispute, if such Customer Dispute a)
arises solely due to a discrepancy in volume or amount of materials being
handled in connection with such Purchased Receivable and Company gives, within
three (3) days becoming aware of same, the Customer a credit pertaining to such
disputed portion (a “Volume Specific Customer Dispute”) or b) arises from any
other cause or reason so long as the disputed portion is an amount that is not
in excess of 10% of the amount of the corresponding Purchased Receivable and
with such amount being confirmed by the Customer of the Purchased Receivable or
Xxxxxx Capital within three (3) days of Company becoming aware of the Customer
Dispute and Company issues within such period to the Customer a credit
pertaining to same (a “10% Customer Dispute”), or ii) the full amount (or in the
discretion of Xxxxxx Capital, the disputed portion) of a Purchased Receivable
that is the subject of a Customer Dispute of any kind (other than a Volume
Specific Customer Dispute or a 10% Customer Dispute), whether or not the same is
valid or with merit, and such Account Receivable (or portion thereof) shall be
deemed sold and assigned back to the Company (but nevertheless subject to the
security interest of Xxxxxx Capital). If such reduction by Xxxxxx
Capital results in an Over-Advance, subject to section 8, herein, the Company
shall within three (3) business days after notice thereof from Xxxxxx
Capital pay to Xxxxxx Capital the lesser of the Obligations or the
full amount of such Over-Advance. If repayment of the Over-Advance is
timely made by the Company, Xxxxxx Capital will not assess the Over-Advance fees
contemplated by Section 8 herein. If repayment of the Over-Advance is
not timely made, Xxxxxx Capital may, in its discretion, assess the Over-Advance
fees contemplated by Section 8 herein. Invoices unpaid after ninety days from
any Customer shall be deemed to be the subject of a Customer
Dispute. In accordance with the foregoing, Xxxxxx Capital may, at its
sole discretion, require the Company to repurchase an account deemed the subject
of a Customer Dispute, resulting in a concomitant reduction in the Available
Advance Amount. The repurchase of an Account Receivable (i) shall not
constitute a reassignment of such Account Receivable, and the security interest
therein shall remain in Xxxxxx Capital until expressly released, and (ii) shall
not give rise to a payment obligation by the Company to Xxxxxx Capital, except
to the extent that such repurchase and concomitant reduction in the Availability
Advance Amount gives rise to an Over-Advance that is required to be repaid by
the Company hereunder. If after the Company repurchases Purchased
Receivables, whether subject to a Customer Dispute or unpaid after ninety days,
payments for the Purchased Receivables are received by the Company, the Company
shall immediately deliver the payments to the Lockbox Account, and such proceeds
so delivered will be applied against and in reduction of the
Obligation.
14. Warranties
By Company. As an inducement to and as a condition of Xxxxxx
Capital's willingness to enter into this Agreement, and with full knowledge that
the truth and accuracy of the warranties in this Agreement are being relied upon
by Xxxxxx Capital, Company warrants as follows:
14.1 By
its execution of each Invoice Schedule with respect to Accounts Receivable or
acceptance of the Purchase Price with respect to a Purchased Receivable
that:
14.1.1 The
Company is the sole owner of such Purchased Receivable and such Purchased
Receivable has not been previously assigned or encumbered in any manner (other
than to Xxxxx Fargo Bank as to which all previously granted security interests
have been terminated and released); the Company has the full power and authority
to sell such Purchased Receivable and its sale to Xxxxxx Capital has been duly
authorized;
14.1.2 The
goods or services listed or referred to in the Purchased Receivable have been
shipped or rendered to the Customer, and the prices and terms of shipment set
forth therein conform in all material respects to the terms of any related
purchase order or agreement with the Customer;
14.1.3 The
invoice representing the Purchased Receivable correctly sets forth the full
purchase price of the goods and services covered thereby, and such amount, less
only the applicable trade discounts and allowances stated therein, if any, is
due and owing from the Customer, subject to no known set-offs, deductions,
disputes, contingencies or counterclaims against the Company or the invoice, and
payment thereof is not contingent upon fulfillment of any obligation other than
delivery of the goods or services referred to in such invoice; and Company
represents that its invoices do not represent a delivery of merchandise or
services upon consignment, guaranteed sale, or similar term.
14.2 Company
is validly existing and in good standing under the laws of the state in which it
is incorporated and is properly licensed and authorized to operate the business
it conducts under its corporate name or any trade name of and is authorized to
do business in every jurisdiction in which it conducts business.
14.3 Each
Customer's business is solvent to best of Company's information and
knowledge.
Commercial
Financing Agreement
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COMMERCIAL
FINANCING AGREEMENT
14.4 Company
is, or will be at the time of the purchase by Xxxxxx Capital, the lawful owner
of and have good and undisputed title to the Purchased Receivables.
14.5 Company
does not own, control or exercise dominion over, in any way whatsoever, the
business of any account-debtor/Customer whose Accounts Receivable are to be
purchased by Xxxxxx Capital and shall not change or modify the terms of any
Account Receivable with any Customer, other than in a commercially reasonable
manner, consistent with past practice as to which Xxxxxx Capital is promptly
advised, unless Xxxxxx Capital first consents to such change in
writing. By way of example only, Company shall not extend a
Customer's credit beyond sixty (60) days without Xxxxxx Capital's prior written
consent.
14.6 All
financial records, statements, books or other documents of Company furnished to
Xxxxxx Capital for review at any time, either before or after the signing of
this Agreement, are true and accurate. Company has no outstanding
state, federal, or local tax liabilities that are overdue or are not otherwise
the subject of a bona fide dispute being pursued in compliance with applicable
governmental rules and regulations as for which Company has established
appropriate reserves, and has filed all tax returns or other documents as
required by law.
14.7 Company
will not, under any circumstances or in any manner whatsoever, interfere with
any of Xxxxxx Capital's rights under this Agreement or misdirect any purchase as
defined in the attached Exhibit “G”.
14.8 Company
shall not factor, finance, give a security interest or sell any of its Accounts
Receivable or any of its Collateral to any person or entity other than Xxxxxx
Capital during the term of this Agreement, nor shall any Accounts Receivable to
be purchased under this Agreement be previously sold, pledged or encumbered by
Company or any other person or entity in any manner whatsoever, other than Xxxxx
Fargo Bank, as to which all previously granted security interests have been
terminated and released.
14.9 Company
shall not permit the placement of any lien, security interest, or encumbrance on
the Collateral except with the prior written consent of Xxxxxx Capital and shall
maintain all of the Collateral in good order and in an operating state,
condition, and repair.
15. Security
Interest. To secure the payment of all advances,
Over-Advances, all loans, and any other sums which have or may become due by the
Company to Xxxxxx Capital under this Agreement and also to secure any other
indebtedness or liability of the Company to Xxxxxx Capital, direct or indirect,
absolute or contingent, due or to become due, liquidated or unliquidated,
determined or undetermined, now existing or hereafter arising, including without
limitation all future advances or loans which may be made at the option of
Xxxxxx Capital to the Company and attorneys' fees (hereinafter referred to as
"Obligations"), Company hereby grants, conveys and mortgages to Xxxxxx Capital
the Collateral as defined in the Security Agreement.
16. Financing
Statements, Security Agreement and Transaction Documents. The
Company and/or its principals shall execute such security agreements as Xxxxxx
Capital may reasonably request to perfect the security interest granted
hereunder, including but not limited to the Security Agreement, (a true copy of
which is annexed hereto, made a part hereof and is marked Exhibit "D"),
Corporate Resolutions (a true copy of which is annexed hereto, made a part
hereof and is marked Exhibit "E"); the Performance Covenant and Waiver (a true
copy of which is annexed hereto, made a part hereof and is marked Exhibit "F").
the Misdirected Payment Agreement (a true copy of which is annexed hereto, made
a part hereof and is marked Exhibit “G”), a Tax Form 8821 and 2848 (a true copy
of which is annexed hereto, made a part hereof and is marked Exhibit “H”)
listing Xxxxxx Capital Corporation as Appointee for the purpose of notification
of delinquent payroll tax, corporate tax or unemployment tax, a validity
guaranty (a true copy of which is annexed hereto, made a part hereof and is
marked Exhibit "I"), and a monthly report authorization. Further the
Company will use all best efforts to have all of its landlords execute and
deliver to Xxxxxx Capital the Landlord’s Waiver and Consent (a true copy of
which is annexed hereto, made a part hereof and is marked Exhibit "J"), and if
requested by Xxxxxx Capital a mortgagee’s waiver of similar form. The Company
hereby authorizes Xxxxxx Capital or its agents or assigns to sign and execute on
its behalf, any and all necessary forms to evidence the foregoing or to perfect
the security interest granted hereunder or thereunder. Further, the Company
consents to Xxxxxx Capital publishing a tombstone announcement or other brief
announcement of their experience/story for its marketing endeavors.
Commercial
Financing Agreement
Page 8 of
67
COMMERCIAL
FINANCING AGREEMENT
17. Financial
Records. During the term of this Agreement, Company agrees to
provide Xxxxxx Capital with its and its guarantors’ financial statements and
records and such other information as may be reasonably requested by Xxxxxx
Capital from time to time, and each quarter, within forty-five days following
the end of the respective quarter, shall furnish an updated customer list with
customer names, contact names, addresses, and phone numbers, as well as a
complete and current payables-aging report and within five business days after
the filing with the Securities and Exchange Commission, copies of all annual and
quarterly Forms 10-K and 10-Q, respectively.
18. Notice of
Levy. Company shall promptly notify Xxxxxx Capital of any
attachment or any other legal process levied against Company or if known to the
Company, any of Company's Customers which is in excess of
$50,000.00. Company's failure to do so shall be a Default hereunder,
as contemplated by Section 24 herein.
19. No
Pledge. Company shall not, at any time during the term of this Agreement,
pledge the credit of Xxxxxx Capital to any person or business for any purpose
whatsoever.
20. Book
Entry. Company shall, immediately upon the sale of an Account
Receivable to Xxxxxx Capital, make proper entries on its books and records
disclosing the absolute sale and assignment of such Account Receivable to Xxxxxx
Capital.
21. Misdirected
Payments. All remittances received by the Company on any Account
Receivable sold to Xxxxxx Capital shall be held by the Company in trust as a
fiduciary for Xxxxxx Capital, separate and apart from the Company’s own
properties and funds (except that payments received by the Company by credit
card will be deposited into the Company operating account and such amount will
be delivered over to Xxxxxx Capital within three (3) business days
thereafter. Notwithstanding that the Company has agreed to pay the
Misdirected Payment Fee, the Company shall, by the third business day following
the date of receipt of the Misdirected Payment, deliver to Xxxxxx Capital either
the payment in the identical form received or the cash equivalent of the amount
of the Misdirected Payment (with delivery deemed to have been made when same are
deposited with a nationally recognized overnight courier). In the
event any goods shall be returned to, reclaimed, or repossessed by the Company,
such goods shall be held by the Company in trust as a fiduciary for Xxxxxx
Capital, separate and apart from the Company’s own property and subject to
Xxxxxx Capital’s direction and control.
22. Attorney’s
Fees. The Company agrees to reimburse Xxxxxx Capital on demand for the
following:
22.1 the
actual amount of all fees, costs, and expenses, including but not limited to
reasonable attorneys’ fees, which Xxxxxx Capital may incur in any action to
enforce this Agreement or any related transaction, or in connection with any
federal or state bankruptcy or insolvency proceeding commenced by or against the
Company, (including but not limited to any complaint to determine
non-dischargeablility of the guarantor’s obligations); and
22.2 the
actual fees, expenses, and costs, including but not limited to photocopying
(which, if performed by Xxxxxx Capital’s employees, shall be at a rate of
$.25/page), travel, expert witness fees, attorneys’ fees, and all other fees,
costs, and expenses incurred in complying with any subpoena or other legal
process attendant to any litigation in which the Company is a
party.
23. Power of
Attorney. Company irrevocably appoints Xxxxxx Capital, or any
person designated by Xxxxxx Capital, its special attorney-in-fact, or agent,
with power to: (1) strike out Company's address on all invoices or statements of
account mailed to Customers and substitute Xxxxxx Capital's address; (2) receive
and open all mail addressed to Company or to Company's trade name via Xxxxxx
Capital address; (3) endorse the name of Company or Company's trade
name on any checks or other evidences of payment, invoices or other documents
that may come into the possession of Xxxxxx Capital on Accounts Receivable or on
which Xxxxxx Capital holds a security interest; (4) in Company's name, or
otherwise, demand, xxx for, collect, and subject to Company's prior written
approval, compromise, prosecute, or defend any action, claim, or proceedings and
give releases for any and all monies due or to become due; (5) do any and all
things reasonably necessary and proper to carry out the purpose intended by this
Agreement. The authority granted Xxxxxx Capital shall remain in full
force and effect until all Accounts Receivable sold and/or assigned to Xxxxxx
Capital have been paid in full.
Commercial
Financing Agreement
Page 9 of
67
COMMERCIAL
FINANCING AGREEMENT
24. Default. Any
one or more of the following shall constitute a default hereunder (a "Default")
provided same is not cured by the Company within fifteen (15) days after receipt
of written notice from Xxxxxx Capital:
|
|
24.1
|
Company's
failure to pay any indebtedness or Obligations (including legal fees and
expenses) to Xxxxxx Capital when
due;
|
|
|
24.2
|
Company's
breach of any material term, provision, warranty, or representation under
this Agreement, or under any other agreement or contract between Company
and Xxxxxx Capital, or Obligation of Company to Xxxxxx
Capital;
|
|
|
24.3
|
Xxxxxx
Capital shall reasonably believe that Company is failing to tender all of
its Accounts Receivable to Xxxxxx Capital for purchase; or the Company
shall have failed to tender Accounts Receivable equal to 20% of the Annual
Base Purchase Amount (being the Base Purchase Amount multiplied by twelve)
during any calendar quarter; or the Company shall have failed to tender
Accounts Receivable to Xxxxxx Capital for purchase for a period of thirty
or more consecutive days;
|
|
|
24.4
|
The
Company shall instruct any Customer to mail or deliver payment on Accounts
Receivable to the Company or to any person other than Xxxxxx Capital
(excluding hand delivering of checks for payments by a Customer incident
to a Customer meeting), provided, however that if the Company receives
payment directly from a Customer in accordance with the terms of this
Agreement, same shall not constitute a Default, so long as such payment is
delivered to Xxxxxx Capital or to the Lockbox (with delivery deemed to
have been made when the same is deposited with a nationally recognized
overnight courier) within three (3) business days after the receipt
thereof by the Company;
|
|
|
24.5
|
The
appointment of any receiver or trustee for all or a substantial portion of
the assets of Company, the filing of a general assignment for the benefit
of creditors by Company or a voluntary or involuntary filing under any
bankruptcy or similar law which is not dismissed with prejudice within 90
days;
|
|
|
24.6
|
The
issuance of any levies of attachment, execution, tax assessments, or
similar process against the Accounts Receivable which is not released
within thirty days;
|
|
|
24.7
|
If
any financial statements, profits-and-loss statements, borrowing
certificates or schedules, or other statements furnished by Company to
Xxxxxx Capital prove false or incorrect in any material
respect;
|
|
|
24.8
|
Failure
of the Company to pay all taxes to every government agency in a timely
manner, except to the extent that such taxes are the subject of a bona
fide dispute being pursued in accordance with applicable governmental
rules and regulations, and as to which the Company has established
adequate reserves;
|
|
|
24.9
|
Notwithstanding
the fifteen (15) day notice period set forth above, the failure of the
Company to timely deliver to Xxxxxx Capital any Misdirected Payment
remittance received by the Company on a Purchased Account within three (3)
business days;
|
|
24.10
|
Insolvency,
bankruptcy, or dissolution of the Company or a Material Accommodation
Party.
|
|
24.11
|
Failure
of the Company to maintain the financial covenants and comply with the
covenants set forth in Exhibit “B”;
|
|
24.12
|
Notwithstanding
the fifteen (15) day notice period set forth above, failure of the Company
to cure a Default under the Misdirected Payment Agreement, the Performance
Covenant and Waiver, or a Validity Guaranty within three (3) business days
after receipt of written notice from Xxxxxx Capital;
and
|
|
24.13
|
Any
false or materially misleading representations or warranties made or given
by the Company in connection with this Agreement or any other agreement
given by the Company to Xxxxxx
Capital.
|
Commercial
Financing Agreement
Page 10
of 67
COMMERCIAL
FINANCING AGREEMENT
25. Remedies
Upon Default. In the event of any Default Xxxxxx Capital shall
have the following cumulative rights and remedies:
|
|
25.1
|
Declare
the Obligations immediately due and
payable;
|
|
|
25.2
|
Enforce
the security interest given
hereunder;
|
|
|
25.3
|
Require
Company to assemble any Collateral secured hereunder and the records
pertaining thereto and make them available to Xxxxxx Capital at a place
designated by Xxxxxx Capital;
|
|
|
25.4
|
Enter
the premises of Company and take possession of any Collateral not then in
its possession and of the records pertaining
thereto;
|
|
|
25.5
|
Grant
extensions, compromise claims, and settle Accounts Receivable for less
than face value, all without prior notice to
Company;
|
|
|
25.6
|
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 utilized by Company;
and
|
|
|
25.7
|
Return
any surplus realized and hold Company liable for any
deficiency.
|
|
|
25.8
|
Interest
shall accrue on any outstanding Obligations (including unpaid legal fees
and expenses) at the rate of two percent in excess of the Interest Rate
charged under this Agreement as set forth in Exhibit B;
and
|
|
|
25.9
|
Any
and all other remedies allowed at law or under the Uniform Commercial
Code.
|
26. Binding
Effect. This Agreement shall inure to the benefit of and be
binding upon the successors, and assigns of both Company and Xxxxxx
Capital.
27. Cumulative
Rights. All rights, remedies, and powers granted to
Xxxxxx Capital in this Agreement, or in any note or other Agreement given by
Company to Xxxxxx Capital, are cumulative and may be exercised singularly or
concurrently with such other rights as Xxxxxx Capital may have. These
rights may be exercised from time to time as to all or any part of the
Collateral as Xxxxxx Capital in its discretion may determine.
28. Written
Waiver. Xxxxxx Capital shall not be deemed to have waived any right or
remedy it may have hereunder unless such waiver is in writing and signed by
Xxxxxx Capital. A waiver by Xxxxxx Capital of a right or remedy under
this Agreement on one occasion shall not be deemed a waiver of a right or remedy
on any subsequent occasion.
29. Governing
Law and Jurisdiction.
29.1 This
Agreement is, and shall be deemed to be, a contract entered into under and
pursuant to the laws of the State of Alabama and shall be in all respects
governed, construed, applied and enforced in accordance with the laws of the
State of Alabama. No defense given or allowed by the laws of any
other state or country shall be interposed in any action or proceeding hereon
unless such defense is also given or allowed by the laws of the State of
Alabama. The parties agree that Alabama bears a reasonable
relationship to this transaction.
29.2 The
parties hereto agree to submit to personal jurisdiction and acknowledge they
have sufficient minimum contacts with the State of Alabama in any
action or proceeding arising out of this Agreement and, in furtherance of such
agreement, they hereby agree and consent that without limiting other methods of
obtaining jurisdiction, that personal jurisdiction in any such action or
proceeding may be obtained within or without the jurisdiction of any court
located in Alabama and that any process or notice or motion or other application
to any such court in connection with any such action or proceeding may be served
by registered or certified mail, return receipt requested, to or by personal
service at their last known address whether such address be within or without
the jurisdiction of any such court. In the event of litigation
between Xxxxxx Capital and the Company, the Company agrees that any requirement
for a bond, be it for any order or other action in court, shall not exceed two
hundred and fifty dollars.
Commercial
Financing Agreement
Page 11
of 67
COMMERCIAL
FINANCING AGREEMENT
30. Invalid
Provisions. If any provision of this Agreement shall be
declared illegal or contrary to law, it is agreed that such provision shall be
disregarded and this Agreement shall continue in force as though such provisions
had not been incorporated herein. If a law, which applies to this
Agreement and which sets maximum loan charges, is finally interpreted so that
the fees and commissions charged by Xxxxxx Capital to Company or other charges
collected or to be collected in connection with this Agreement exceed the
permitted limits under any applicable law or statute, then: (i) any such fee or
commission shall be reduced by the amount necessary to reduce the charges to the
permitted limit; and (ii) any sums already collected from the Company which
exceed permitted limits will be applied and shall be deemed to have been
payments in reduction of the obligations hereunder.
31. Further
Instruments. Company agree that, upon request from time to
time of Xxxxxx Capital, it will, at its expense, execute, acknowledge and
deliver all such additional instruments and further assurances and will do or
cause to be done all such further acts and things as may be reasonably necessary
to fully establish, confirm or perfect from time to time the security interest
of Xxxxxx Capital in the Collateral and to fully establish, confirm or perfect
from time to time the intention of this Agreement.
32. No Jury
Trial. The Company hereby irrevocably and unconditionally
waives, and Xxxxxx Capital by its acceptance of this Agreement irrevocably and
unconditionally waives, any and all right to trial by jury in any action, suit
or counterclaim arising in connection with, out of or otherwise relating to this
Agreement.
33. Entire
Agreement. This instrument contains the entire Agreement
between the parties. Any addendum or modification hereto must be
signed by both parties in order to have any force or effect.
34. Notices. All
notices, demands or requests (collectively, "Notice") made pursuant to, under or
by virtue of this Agreement must be in writing and sent to the party or parties
to whom or to which such Notice is being sent, by certified or registered mail,
return receipt requested, reputable overnight courier or delivered by hand with
receipt acknowledged in writing to the addresses first hereinabove set
forth. All notices shall be deemed given as follows: (a) if by hand,
immediately upon delivery along with said receipt evidencing such by hand
delivery; (b) if certified or registered mail, return receipt requested, postage
prepaid on the fifth (5th)
business day after mailing; if by nationally recognized overnight courier or any
other overnight delivery service, on the first business day after
dispatch. All notices may be given either by a party or such party's
attorneys.
35. Effective
Date. This Agreement shall be effective only upon its
execution by a duly authorized officer of Xxxxxx Capital.
36. Duplicate
Originals. This Agreement may be executed in any number of
duplicate originals and each such duplicate original shall be deemed to
constitute but one and the same instrument.
37. Headings,
Etc. The headings, titles and captions of various paragraphs
of this Agreement are for convenience of reference only and are not to be
construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date and year first above
written.
|
COMPANY:
|
||
|
PURE EARTH MATERIALS,
INC., a Pennsylvania corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
Commercial
Financing Agreement
Page 12
of 67
COMMERCIAL
FINANCING AGREEMENT
|
PEI DISPOSAL GROUP,
INC., a Delaware corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
PURE EARTH TRANSPORTATION &
DISPOSAL, INC., a Delaware
corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
PURE EARTH RECYCLING (NJ),
INC., a Delaware corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
XXXXXX
CAPITAL:
|
||
|
XXXXXX
CAPITAL CORPORATION
|
||
|
By:
|
/s/ Xxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxx Xxxxxxxxxx
|
|
|
Title:
|
EVP, a duly authorized
officer
|
|
Commercial
Financing Agreement
Page 13
of 67
Notification/Change
of Remittance Address
NOTIFICATION/CHANGE
OF REMITTANCE ADDRESS
Dear
Accounts Payable Manager:
In order
to accommodate the changes and growth of our business, PURE EARTH MATERIALS, INC. has
obtained the services of XXXXXX
CAPITAL CORPORATION as a source of accounts receivables management and
capital funding. The availability of this service enables us to
streamline our accounts receivables department and better serve our customers in
a more efficient manner. Therefore, we wish to inform you that
payment on all invoices dated
_________________onward should be made payable to and mailed directly
to:
|
PURE
EARTH MATERIALS, INC.
|
or
|
Wire
Transfer or ACH to:
|
|
c/o
Porter Capital Corporation
|
Columbus
Bank & Trust
|
|
|
X.X.
Xxx 00000
|
Xxxxxxxx,
XX 00000
|
|
|
Xxxxxxxxxx,
XX 00000
|
Routing
& Transit 000000000
|
|
|
Xxxxxxxxxx,
XX 00000
|
||
|
Account
#00000000
|
||
|
For
Further Credit: PURE
|
||
|
EARTH
MATERIALS, INC.
|
This
Assignment has been duly recorded under Alabama statues and under the Uniform
Commercial Code. Please make the proper notification on your
ledger.
If you
have questions concerning your billing, please call Xxxxxx Capital Corporation
at 000-000-0000 or 0-000-000-0000.
This
notice and instruction remains in full force and in effect until Xxxxxx Capital
Corporation again notifies you in writing to the contrary.
Sincerely
|
PURE EARTH MATERIALS,
INC., a Pennsylvania corporation
|
||
|
By:
|
|
|
|
Print
Name:
|
|
|
|
Title:
|
|
|
|
XXXXXX
CAPITAL CORPORATION
|
||
|
By:
|
|
|
|
Print
Name:
|
Xxx Xxxxxxxxxx
|
|
|
Title:
|
EVP
|
|
Commercial
Financing Agreement
Page 14
of 67
Notification/Change
of Remittance Address
NOTIFICATION/CHANGE
OF REMITTANCE ADDRESS
Dear
Accounts Payable Manager:
In order
to accommodate the changes and growth of our business, PEI DISPOSAL GROUP, INC. has
obtained the services of XXXXXX
CAPITAL CORPORATION as a source of accounts receivables management and
capital funding. The availability of this service enables us to
streamline our accounts receivables department and better serve our customers in
a more efficient manner. Therefore, we wish to inform you that
payment on all invoices dated
_________________onward should be made payable to and mailed directly
to:
|
PEI
DISPOSAL GROUP, INC.
|
or
|
Wire
Transfer or ACH to:
|
|
c/o
Porter Capital Corporation
|
Columbus
Bank & Trust
|
|
|
X.X.
Xxx 00000
|
Xxxxxxxx,
XX 00000
|
|
|
Xxxxxxxxxx,
XX 00000
|
Routing
& Transit 000000000
|
|
|
Xxxxxxxxxx,
XX 00000
|
||
|
Account
#00000000
|
||
|
For
Further Credit: PEI
|
||
|
DISPOSAL
GROUP, INC.
|
This
Assignment has been duly recorded under Alabama statues and under the Uniform
Commercial Code. Please make the proper notification on your
ledger.
If you
have questions concerning your billing, please call Xxxxxx Capital Corporation
at 000-000-0000 or 0-000-000-0000.
This
notice and instruction remains in full force and in effect until Xxxxxx Capital
Corporation again notifies you in writing to the contrary.
Sincerely
|
PEI DISPOSAL GROUP,
INC., a Delaware corporation
|
||
|
By:
|
|
|
|
Print
Name:
|
|
|
|
Title:
|
|
|
|
XXXXXX
CAPITAL CORPORATION
|
||
|
By:
|
|
|
|
Print
Name:
|
Xxx Xxxxxxxxxx
|
|
|
Title:
|
EVP
|
|
Commercial
Financing Agreement
Page 15
of 67
Notification/Change
of Remittance Address
NOTIFICATION/CHANGE
OF REMITTANCE ADDRESS
Dear
Accounts Payable Manager:
In order
to accommodate the changes and growth of our business, PURE EARTH TRANSPORTATION &
DISPOSAL, INC. has obtained the services of XXXXXX CAPITAL CORPORATION as
a source of accounts receivables management and capital funding. The
availability of this service enables us to streamline our accounts receivables
department and better serve our customers in a more efficient
manner. Therefore, we wish to inform you that payment on all invoices dated
_________________onward should be made payable to and mailed directly
to:
|
PURE
EARTH
|
or
|
Wire
Transfer or ACH to:
|
|
TRANSPORTATION
&
|
Columbus
Bank & Trust
|
|
|
DISPOSAL,
INC.
|
Xxxxxxxx,
XX 00000
|
|
|
c/o
Porter Capital Corporation
|
Routing
& Transit 000000000
|
|
|
X.X.
Xxx 00000
|
Xxxxxxxxxx,
XX 00000
|
|
|
Xxxxxxxxxx,
XX 00000
|
Account
#00000000
|
|
|
For
Further Credit: PURE
|
||
|
EARTH
TRANSPORTATION &
|
||
|
DISPOSAL,
INC.
|
This
Assignment has been duly recorded under Alabama statues and under the Uniform
Commercial Code. Please make the proper notification on your
ledger.
If you
have questions concerning your billing, please call Xxxxxx Capital Corporation
at 000-000-0000 or 0-000-000-0000.
This
notice and instruction remains in full force and in effect until Xxxxxx Capital
Corporation again notifies you in writing to the contrary.
Sincerely
|
PURE
EARTH TRANSPORTATION & DISPOSAL, INC., a Delaware
corporation
|
||
|
By:
|
|
|
|
Print
Name:
|
|
|
|
Title:
|
|
|
|
XXXXXX
CAPITAL CORPORATION
|
||
|
By:
|
|
|
|
Print
Name:
|
Xxx Xxxxxxxxxx
|
|
|
Title:
|
EVP
|
|
Commercial
Financing Agreement
Page 16
of 67
Notification/Change
of Remittance Address
NOTIFICATION/CHANGE
OF REMITTANCE ADDRESS
Dear
Accounts Payable Manager:
In order
to accommodate the changes and growth of our business, PURE EARTH RECYCLING (NJ), INC.
has obtained the services of XXXXXX CAPITAL CORPORATION as
a source of accounts receivables management and capital funding. The
availability of this service enables us to streamline our accounts receivables
department and better serve our customers in a more efficient
manner. Therefore, we wish to inform you that payment on all invoices dated
_________________onward should be made payable to and mailed directly
to:
|
PURE
EARTH RECYCLING (NJ),
|
or
|
Wire
Transfer or ACH to:
|
|
INC.
|
Columbus
Bank & Trust
|
|
|
c/o
Porter Capital Corporation
|
Xxxxxxxx,
XX 00000
|
|
|
X.X.
Xxx 00000
|
Routing
& Transit 000000000
|
|
|
Xxxxxxxxxx,
XX 00000
|
Xxxxxxxxxx,
XX 00000
|
|
|
Account
#00000000
|
||
|
For
Further Credit: PURE
|
||
|
EARTH
RECYCLING (NJ), INC.
|
This
Assignment has been duly recorded under Alabama statues and under the Uniform
Commercial Code. Please make the proper notification on your
ledger.
If you
have questions concerning your billing, please call Xxxxxx Capital Corporation
at 000-000-0000 or 0-000-000-0000.
This
notice and instruction remains in full force and in effect until Xxxxxx Capital
Corporation again notifies you in writing to the contrary.
Sincerely
|
PURE EARTH RECYCLING (NJ),
INC., a Delaware corporation
|
||
|
By:
|
||
|
Print
Name:
|
||
|
Title:
|
||
|
XXXXXX
CAPITAL CORPORATION
|
||
|
By:
|
||
|
Print
Name:
|
Xxx Xxxxxxxxxx
|
|
|
Title:
|
EVP
|
|
Commercial
Financing Agreement
Page 17
of 67
|
Exhibit
“A”
|
Attachment
to UCC-1
|
EXHIBIT A - Attachment to
UCC-1 — Description of
Collateral
Secured
Party: XXXXXX CAPITAL CORPORATION
All of
the following, whether now existing or hereafter arising, are collateral
("Collateral") covered by this financing statement:
All of
Debtor’s (a) Accounts; (b) Inventory; (c) cash; (d) now owned or hereafter
acquired lockbox, blocked accounts, and any other deposit accounts and deposits
maintained with any financial institution into which proceeds of the Collateral
are or may be deposited; (e) rights to payments for good sold and/or services
rendered that are or become evidenced by Instrument, (f) payment intangibles and
letter of credit rights; (g) credit insurance with respect to Accounts; (h) all
books and records and general intangibles evidencing or containing information
relating to any of the Collateral or otherwise necessary of helpful in the
collection thereof or the realization thereon; (i) all other forms of
obligations owing to Debtor arising from the sale of inventory or the rendition
of services, or constituting collateral or supporting obligations for the
payment of any account debtor’s obligation to Debtor, including but not limited
to letters of credit and all proceeds thereof; (j) all guarantees, security, and
liens which Debtor may hold for the payment or performance of any item of
Collateral (including, without limitation, all rights of stoppage in transit,
replevin, and reclamation and as an unpaid vendor or lienor); (k) all rights to
goods represented by any item of Collateral or the sale of which goods gave rise
to any item of Collateral including, without limitation, all rights upon return,
replevin, or repossession of such goods, all documents of title, warehouse
receipts, bills of lading, books, records and other documents relating to any of
the Collateral; (l) all of Debtor’s inventory, wherever located, and including,
without limitation, all raw materials, supplies work in process, and finished
products manufactured by and/or held for sale or lease or to be furnished in
connection with the business of Debtor, as well as any and all computer code,
software, software products, or databases relating specifically to the
Collateral; (m) all proceeds of any item of Collateral and all proceeds of such
proceeds, including, without limitation, all payments under any indemnity,
warrant or guaranty payable with respect to the Collateral, all awards for
taking by eminent domain, and all proceeds of fire or other insurance; (n) all
cash and non-cash proceeds of all of the foregoing, and (o) all books, records,
and lists relating specifically to the Collateral, in whatever form
maintained.
Provided
however, the foregoing notwithstanding, the account containing the six month
interest reserve pertaining to Debtor’s obligations to Susquehanna Bank and the
money balance contained therein shall not be considered a part of the
Collateral.
All terms
capitalized in this definition shall have the meaning set forth for such terms
in the Uniform Commercial Code as enacted in the State of Alabama
("UCC").
Although
proceeds are covered herein, the secured party in no way has authorized sale of
the Collateral by the Debtor. NOTE: PURSUANT TO AN AGREEMENT BETWEEN DEBTOR
& SECURED PARTY, DEBTOR HAS AGREED THAT IT WILL NOT FURTHER ENCUMBER THE
ASSETS DESCRIBED ABOVE.
The undersigned being the entities who are parties to a Security Agreement in favor of Xxxxxx Capital Corporation and the Debtor in the above attachment to the UCC hereby authorizes Xxxxxx Capital Corporation to file a UCC financing statement against Company and Accommodation Party containing the above:
|
PURE EARTH MATERIALS,
INC., a Pennsylvania corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
Commercial
Financing Agreement
Page 18
of 67
|
Exhibit
“A”
|
Attachment
to UCC-1
|
|
PEI DISPOSAL GROUP,
INC., a Delaware corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
PURE EARTH TRANSPORTATION &
DISPOSAL, INC., a Delaware corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
PURE EARTH RECYCLING (NJ),
INC., a Delaware corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
PURE EARTH, INC., a
Delaware corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
CFO
|
|
|
PURE EARTH ENVIRONMENTAL,
INC, a Delaware corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
REZULTZ, INCORPORATED, a
New Jersey corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
BIO METHODS LLC, a
Delaware limited liability company
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
Exhibit 10.1- Commercial Financing
Agreement Dated February 11, 2010
Page 19
of 67
|
Exhibit
“A”
|
Attachment
to UCC-1
|
|
PURE EARTH MATERIALS (NJ)
INC., a Delaware corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
JUDA CONSTRUCTION, LTD,
a New York corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
President
|
|
|
ECHO LAKE XXXXXXXXXX,
LLC, a Connecticut limited liability company
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
NEW NYCON, INC., a
Delaware corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
PURE EARTH ENERGY RESOURCES,
INC., a Delaware corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 20
of 67
|
Exhibit
“H”
|
Tax
Form 8821 and 2848
|
Internal
Revenue Tax Forms 8821 and 2848 are attached hereto and made a part
hereof.
IN WITNESS WHEREOF, the
undersigned has duly executed the Tax Forms 8821 and 2848 as of the 11th day
of February, 2010.
|
PURE EARTH MATERIALS,
INC., a Pennsylvania corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
PEI DISPOSAL GROUP,
INC., a Delaware corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
PURE EARTH TRANSPORTATION &
DISPOSAL, INC., a Delaware corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
PURE EARTH RECYCLING (NJ),
INC., a Delaware corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 21
of 67
Exhibit
“B”
EXHIBIT
"B"
Line
of Credit
Upon the
mutual execution of this Agreement, Xxxxxx Capital will open an accounts
receivable line of credit in the amount of $5,000,000.00 for the Company under
which Xxxxxx Capital will, subject to the terms and conditions herein, assuming
that no Default is continuing, make loans and advances to the Company on a
revolving basis in amounts requested by the Company from time to time, but not
in excess of the lesser of the $5,000,000.00 or the Available Advance
Amount.
All such
advances made to Company by Xxxxxx Capital shall constitute Obligations
hereunder.
All
requests for loans and advances by the Company shall be received by Xxxxxx
Capital no later than Noon, New York time on the business day that an advance is
required. The Company authorizes Xxxxxx Capital to make loan and
advances hereunder based on telephonic or e-mail request made by officers of the
Company that the Company has authorized in writing to request such advances, as
reflected in Xxxxxx Capital’s records. In exchange for said line,
Company shall pay the commitment fees contemplated by Section 12.2 of this
Agreement.
Fees
The
Company shall pay a Invoice Service Fee equal to 0.95% charged monthly on the
daily outstanding principal balance under the Line of Credit.
Interest
Interest
shall be charged by Xxxxxx Capital on the daily outstanding principal balance of
the Line of Credit (including all advances, and Over-Advances) at the Prime Rate
plus two and one-half percent on an annualized basis charged daily, collected at
the end of each month.
Prime
Rate
The Prime
Rate as used herein shall be the greater of the prime rate as published in the
Wall Street
Journal as the "Prime Rate" (base rate on corporate loans posted by at
least 75% of the nation's 30 largest banks) or five percent per
annum. The Prime Rate is a reference rate used by Xxxxxx Capital in
computing and adjusting interest. It is subject to increase, decrease
or change, and is only one of the reference rates or indices that the Xxxxxx
Capital uses. Xxxxxx Capital may lend to others at rates of interest
at, or greater or less than, the Prime Rate or the rate provided
herein. The Prime Rate may change as often as daily. Any
change in the interest rate resulting from a change in the Prime Rate shall take
effect upon the change in the Prime Rate. In the event a "Prime Rate"
is not published in the Wall Street Journal
then the Prime Rate used herein shall be the greater of the highest prime rate
of the three largest banks located in New York, as they shall announce or
publish from time to time as their prime rate or five percent per
annum. Interest from date on the outstanding unpaid principal balance
shall be computed on the basis of a 360 day year by multiplying the product of
the principal amount outstanding and the applicable rate by the actual amount of
days elapsed and dividing by 360.
Lockbox
Collections
shall be made to a lockbox located in Ridgefield, Connecticut, or Birmingham,
Alabama, as mutually agreed on by the Company and Xxxxxx Capital.
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 22
of 67
|
Exhibit
“C”
|
Invoice
Acknowledgement Agreement
|
XXXXXX
CAPITAL CORPORATION
Working
Capital Overnight™
2100
Xxxxx Xxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxx 00000 * 000-000-0000
Fax:
000-000-0000 * Offices in New York and
Connecticut
[date]
[name and address of account
debtor]
Re: Invoice Acknowledgement
Agreement
Ladies
and Gentlemen:
PURE
EARTH MATERIALS, INC. (“Vendor”) has requested that we accept an assignment of
the invoice(s) listed below (the “Invoices”). Accordingly, payment of
the Invoices must be made directly to us at Xxxxxx Capital Corporation, P.X. Xxx
00000, Xxxxxxxxxx, XX 00000.
To induce
us to accept and rely upon this agreement, please confirm that the Invoices will
be paid to us without setoff, defense, counterclaim or
recoupment. For our mutual benefit, should litigation arise between
us relating to our relationship with the Vendor, the prevailing party shall be
entitled to recover all costs, expenses, and actual attorney’s
fees. The xxxxxx below is duly authorized to sign this
agreement. The Invoices are:
|
DATE
|
INVOICE NUMBER
|
AMOUNT
|
||||||
| $ | ||||||||
| $ | ||||||||
Please
feel free to contact us should you have any question regarding this letter
agreement.
|
Very
truly yours,
|
|
|
XXXXXX
CAPITAL CORPORATION
|
CONFIRMED:
PURE EARTH MATERIALS, INC.,
a
Pennsylvania
corporation
|
By:
|
||||
|
Print Name:
|
||||
|
Title:
|
||||
|
ACCEPTED AND AGREED TO
BY ACCOUNT DEBTOR:
|
||||
|
By:
|
||||
|
Print Name:
|
||||
|
Title:
|
||||
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 23
of 67
|
Exhibit
“C”
|
Invoice
Acknowledgement Agreement
|
XXXXXX
CAPITAL CORPORATION
Working
Capital Overnight™
2100
Xxxxx Xxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxx 00000 * 000-000-0000
Fax:
000-000-0000 * Offices in New York and
Connecticut
[date]
[name and address of account
debtor]
Re: Invoice Acknowledgement
Agreement
Ladies
and Gentlemen:
PEI
DISPOSAL GROUP, INC. (“Vendor”) has requested that we accept an assignment of
the invoice(s) listed below (the “Invoices”). Accordingly, payment of
the Invoices must be made directly to us at Xxxxxx Capital Corporation, P.X. Xxx
00000, Xxxxxxxxxx, XX 00000.
To induce
us to accept and rely upon this agreement, please confirm that the Invoices will
be paid to us without setoff, defense, counterclaim or
recoupment. For our mutual benefit, should litigation arise between
us relating to our relationship with the Vendor, the prevailing party shall be
entitled to recover all costs, expenses, and actual attorney’s
fees. The xxxxxx below is duly authorized to sign this
agreement. The Invoices are:
|
DATE
|
INVOICE NUMBER
|
AMOUNT
|
||||
| $ | ||||||
| $ | ||||||
Please
feel free to contact us should you have any question regarding this letter
agreement.
|
Very truly yours,
|
|
|
XXXXXX CAPITAL CORPORATION
|
CONFIRMED:
PEI DISPOSAL GROUP, INC.,
a
Delaware
corporation
|
By:
|
||||
|
Print Name:
|
||||
|
Title:
|
||||
|
ACCEPTED AND AGREED TO
BY ACCOUNT DEBTOR:
|
||||
|
By:
|
||||
|
Print Name:
|
||||
|
Title:
|
||||
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 24
of 67
|
Exhibit
“C”
|
Invoice
Acknowledgement Agreement
|
XXXXXX
CAPITAL CORPORATION
Working
Capital Overnight™
2100
Xxxxx Xxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxx 00000 * 000-000-0000
Fax:
000-000-0000 * Offices in New York and
Connecticut
[date]
[name and address of account
debtor]
Re: Invoice Acknowledgement
Agreement
Ladies
and Gentlemen:
PURE
EARTH TRANSPORTATION & DISPOSAL, INC. (“Vendor”) has requested that we
accept an assignment of the invoice(s) listed below (the
“Invoices”). Accordingly, payment of the Invoices must be made
directly to us at Xxxxxx Capital Corporation, P.X. Xxx 00000, Xxxxxxxxxx,
XX 00000.
To induce
us to accept and rely upon this agreement, please confirm that the Invoices will
be paid to us without setoff, defense, counterclaim or
recoupment. For our mutual benefit, should litigation arise between
us relating to our relationship with the Vendor, the prevailing party shall be
entitled to recover all costs, expenses, and actual attorney’s
fees. The xxxxxx below is duly authorized to sign this
agreement. The Invoices are:
|
DATE
|
INVOICE NUMBER
|
AMOUNT
|
||||
| $ | ||||||
| $ | ||||||
Please
feel free to contact us should you have any question regarding this letter
agreement.
|
Very
truly yours,
|
|
|
XXXXXX
CAPITAL CORPORATION
|
CONFIRMED:
PURE
EARTH TRANSPORTATION &
DISPOSAL, INC., a Delaware
corporation
|
By:
|
||||
|
Print Name:
|
||||
|
Title:
|
||||
|
ACCEPTED AND AGREED TO
BY ACCOUNT DEBTOR:
|
||||
|
By:
|
||||
|
Print Name:
|
||||
|
Title:
|
||||
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 25
of 67
|
Exhibit
“C”
|
Invoice
Acknowledgement Agreement
|
XXXXXX
CAPITAL CORPORATION
Working
Capital Overnight™
2100
Xxxxx Xxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxx 00000 * 000-000-0000
Fax:
000-000-0000 * Offices in New York and
Connecticut
[date]
[name and address of account
debtor]
Re: Invoice Acknowledgement
Agreement
Ladies
and Gentlemen:
PURE
EARTH RECYCLING (NJ), INC. (“Vendor”) has requested that we accept an assignment
of the invoice(s) listed below (the “Invoices”). Accordingly, payment
of the Invoices must be made directly to us at Xxxxxx Capital Corporation, P.X.
Xxx 00000, Xxxxxxxxxx, XX 00000.
To induce
us to accept and rely upon this agreement, please confirm that the Invoices will
be paid to us without setoff, defense, counterclaim or
recoupment. For our mutual benefit, should litigation arise between
us relating to our relationship with the Vendor, the prevailing party shall be
entitled to recover all costs, expenses, and actual attorney’s
fees. The xxxxxx below is duly authorized to sign this
agreement. The Invoices are:
|
DATE
|
INVOICE NUMBER
|
AMOUNT
|
||||
|
__________
|
_________________
|
$
_________
|
||||
|
__________
|
_________________
|
$
_________
|
Please
feel free to contact us should you have any question regarding this letter
agreement.
Very truly yours,
XXXXXX CAPITAL
CORPORATION
|
CONFIRMED:
|
|
|
PURE
EARTH RECYCLING (NJ), INC.,
|
|
|
a
New Jersey corporation
|
|
|
By:
|
|
|
Print
Name:
|
|
|
Title:
|
|
|
ACCEPTED
AND AGREED TO
BY
ACCOUNT DEBTOR:
|
|
|
By:
|
|
|
Print
Name:
|
|
|
Title:
|
|
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 26
of 67
|
Exhibit
“D”
|
Security
Agreement
|
SECURITY
AGREEMENT
Agreement
(the "Agreement") made this 11th day of February, 2010 between PURE EARTH MATERIALS, INC., a
Pennsylvania corporation, with an office for the transaction of business at
1000 Xxxx Xxxxxx, Xxxxxxxxx, XX, 00000, PEI DISPOSAL GROUP, INC., a
Delaware corporation, with an office for the transaction of business at
1000 Xxxx Xxxxxx, Xxxxxxxxx, XX, 00000, PURE EARTH TRANSPORTATION &
DISPOSAL, INC., a Delaware corporation, with an office for the
transaction of business at 1000 Xxxx Xxxxxx, Xxxxxxxxx, XX, 00000, and
PURE EARTH RECYCLING (NJ),
INC., a Delaware corporation, with an office for the
transaction of business at 3100 Xxxxxxxxx Xxxxx, Xxxxxxxx, XX, 00000
(hereinafter jointly, severally and collectively the "Company"), and PURE EARTH, INC., a Delaware
corporation, with an office
for the transaction of business at Onx Xxxxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxxxxxx, 00000, PURE EARTH ENVIRONMENTAL, INC,
a Delaware corporation, with an office for the
transaction of business at 36 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX, 00000, REZULTZ, INCORPORATED, a New
Jersey corporation, with
an office for the transaction of business at 3200 X. Xxxx Xxxx, Xxxxxxxx,
XX, 00000, BIO METHODS LLC,
a Delaware limited liability company, with an office for the
transaction of business at 36 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX, 00000, PURE EARTH MATERIALS (NJ)
INC., a Delaware corporation, with an office for the
transaction of business at 1000 Xxxx Xxxxxx, Xxxxxxxxx, XX, 00000, JUDA CONSTRUCTION, LTD, a New
York corporation, with an office for the transaction of business at 1200 X.
Xxx Xxxxxx, Xxxxx, XX 00000, ECHO LAKE XXXXXXXXXX, LLC, a
Connecticut limited liability company, with an office for the
transaction of business at 36 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX, 00000, NEW NYCON, INC., a Delaware
corporation, with an office for the transaction of business at Onx
Xxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxxxx, 00000, and PURE EARTH ENERGY RESOURCES,
INC., a Delaware corporation, with an office for the transaction of
business at Onx Xxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxxxx, 00000,
(hereinafter jointly, severally and collectively the “Accommodation Party”), and
XXXxXXX CAPITAL
CORPORATION, an Alabama corporation with offices for the
transaction of business located at 290 Xxxxxxx Xxxxxx, XX, XX, 00000; 38
Xxxxx Xxxxxx – Xxxxxxxx X, Xxxxxxxxxx, XX 00000; and 2100 Xxxxx Xxxxxx Xxxxx,
Xxxxxxxxxxx, Xxxxxxx 00000 ("Xxxxxx Capital"). For purposes
of this Agreement, Pure Earth, Inc., New Nycon, Inc., Pure Earth Environmental,
Inc., Rezultz, Incorporated, and Echo Lake Brownfields, LLC shall be sometimes
referred to herein individually and collectively as the “Material Accommodation
Party”. Company, Accommodation Party, and Xxxxxx Capital agree and shall be
legally bound as follows:
W
I T N E S S E T H
WHEREAS, Xxxxxx Capital and
Company have this day entered into a commercial financing agreement and other
related documents wherein Xxxxxx Capital has agreed to purchase certain
accounts receivables and/or invoices of the Company under certain terms and
conditions (collectively the "Commercial Financing Agreement");
and
WHEREAS, in order to secure
the Company's payment of any sums which may become due under the Commercial
Financing Agreement, Company and Accommodation Party are granting Xxxxxx Capital
a security interest in all of their respective Collateral (as that
term is defined herein) all as more particularly set forth below;
NOW, THEREFORE, it is agreed
as follows:
1. Granting
of Security Interest. To secure the payment of any sums which
have or may become due by the Company to Xxxxxx Capital pursuant to the
Commercial Financing Agreement and also to secure any other indebtedness or
liability of the Company and/or Accommodation Party to Xxxxxx Capital, direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, including all future advances or loans which may be made at
the option of Xxxxxx Capital to the Company (hereinafter referred to as
"Obligations"), Company and Accommodation Party hereby grant and convey to
Xxxxxx Capital a security interest in, and mortgage to Xxxxxx Capital the
"Collateral" as defined in paragraph 2 below. The Company, Accommodation Party,
and Xxxxxx Capital agree that at the termination of this Agreement both parties
shall exchange mutual releases of all claims, each against the other, and that
no liens against the Company’s or Accommodation Party’s assets shall be lifted
until such releases are signed by all such parties.
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 27
of 67
|
Exhibit
“D”
|
Security
Agreement
|
2. "The
Collateral". All of the following, whether now existing or
hereafter arising, shall be deemed secured and mortgaged by this
Agreement (the "Collateral"):
All of
the Company’s and Accommodation Party’s (a) Accounts; (b) Inventory; (c) cash;
(d) now owned or hereafter acquired lockbox, blocked accounts, and any other
deposit accounts and deposits maintained with any financial institution into
which proceeds of the Collateral are or may be deposited; (e) rights to payments
for good sold and/or services rendered that are or become evidenced by
Instrument, (f) payment intangibles and letter of credit rights; (g) credit
insurance with respect to Accounts; (h) all books and records and general
intangibles evidencing or containing information relating to any of the
Collateral or otherwise necessary of helpful in the collection thereof or the
realization thereon; (i) all other forms of obligations owing to Company or
Accommodation Party arising from the sale of inventory or the rendition of
services, or constituting collateral or supporting obligations for the payment
of any account debtor’s obligation to Company or Accommodation Party, including
but not limited to letters of credit and all proceeds thereof; (j) all
guarantees, security, and liens which Company or Accommodation Party may hold
for the payment or performance of any item of Collateral (including, without
limitation, all rights of stoppage in transit, replevin, and reclamation and as
an unpaid vendor or lienor); (k) all rights to goods represented by any item of
Collateral or the sale of which goods gave rise to any item of Collateral
including, without limitation, all rights upon return, replevin, or repossession
of such goods, all documents of title, warehouse receipts, bills of lading,
books, records and other documents relating to any of the Collateral; (l) all of
Company’s or Accommodation Party’s inventory, wherever located, and including,
without limitation, all raw materials, supplies work in process, and finished
products manufactured by and/or held for sale or lease or to be furnished in
connection with the business of Company or Accommodation Party, as well as any
and all computer code, software, software products, or databases relating
specifically to the Collateral; (m) all proceeds of any item of Collateral and
all proceeds of such proceeds, including, without limitation, all payments under
any indemnity, warrant or guaranty payable with respect to the Collateral, all
awards for taking by eminent domain, and all proceeds of fire or other
insurance; (n) all cash and non-cash proceeds of all of the foregoing, and (o)
all books, records, and lists relating specifically to the Collateral, in
whatever form maintained.
Provided
however, the foregoing notwithstanding, the account containing the six month
interest reserve pertaining to Company’s or Accommodation Party’s obligations to
Susquehanna Bank and the money balance contained therein shall not be considered
a part of the Collateral.
All terms
capitalized in this definition shall have the meaning set forth for such terms
in the Uniform Commercial Code as enacted in the State of Alabama
("UCC").
3. Representations
and Warranties. Company and Accommodation Party represents and
warrants to Xxxxxx Capital as follows:
(a) To
pay and perform all of the Obligations secured by this Agreement in accordance
with their respective terms.
(b) To
defend title to the Collateral of the Company and the Material Accommodation
Party against all persons and against all claims and demands whatsoever, which
Collateral of the Company and the Material Accommodation Party, except for the
security interest granted hereby, is lawfully owned by the Company or
the Material Accommodation Party, as the case may be, and is now free and clear
of any and all liens, security interests, claims, charges, encumbrances, taxes
and assessments except as may be set forth on Schedule 3(b) attached
hereto.
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 28
of 67
|
Exhibit
“D”
|
Security
Agreement
|
(c) On
demand of Xxxxxx Capital to do the following: (i) furnish further assurances of
title; (ii) execute any written agreement or do any other acts
necessary to effectuate the purposes and provisions of this Agreement; and (iii)
execute any instrument or statement required by law or otherwise in order to
perfect, continue or terminate the security interest of Xxxxxx Capital in the
Collateral and pay all costs of filing in connection therewith.
(d) To
retain possession of the Collateral during the existence of this Agreement and
not to sell, exchange, assign, loan, deliver, lease, mortgage or otherwise
dispose of same, other than in the ordinary course of business, without the
written consent of Xxxxxx Capital. Although proceeds of the
Collateral are covered herein, Xxxxxx Capital in no way has authorized sale of
the Collateral by the Company, other than in the ordinary course of
business.
(e) To
keep the Collateral at the principal office of the Company or Accommodation
Party and not to remove the same, except in the ordinary course of business,
without the prior written consent of Xxxxxx Capital.
(f) To
keep the Collateral of the Company and the Material Accommodation Party free and
clear of all liens, charges, encumbrances, taxes and assessments, other than
inchoate liens for taxes that are not overdue or are the subject of a bona fide
dispute being pursued in compliance with applicable governmental rules and
regulations and as to which adequate reserves have been established and are
being maintained.
(g) To
pay, when due, all taxes, assessments, and license fees relating to the
Collateral, except to the extent that any such taxes, assessments or license
fees are the subject of a bona fide dispute being pursued in accordance with
applicable governmental rules and regulations and as to which adequate reserves
have been established and are being maintained.
(h) To
keep the Collateral, at the Company's or Accommodation Party’s own cost and
expense, in good repair and condition and not to misuse, abuse, waste, or allow
to deteriorate except for normal wear and tear and to make the same available
for inspection by Xxxxxx Capital at all reasonable times.
(i) To
keep the Collateral insured against loss or potential loss by fire (including
extended coverage), theft and other hazards as Xxxxxx Capital may require and to
obtain collision insurance if applicable. Policies shall be in such
form and amounts and with such companies as Xxxxxx Capital may
designate. Policies shall be obtained from responsible insurers
authorized to do business in the state in which the Collateral is
located. Certificates of insurance or policies, payable to the
respective parties as their interest may appear, shall be deposited with Xxxxxx
Capital who is authorized, but under no duty, to obtain such insurance upon the
failure of the Company or Accommodation Party to do so. Company and
Accommodation Party shall give immediate written notice to Xxxxxx Capital and to
insurers of loss or potential loss or damage to the Collateral and shall
promptly file proofs of loss or potential loss with insurers. Company
and Accommodation Party hereby appoints Xxxxxx Capital its attorney-in-fact in
obtaining, adjusting and canceling any such insurance and endorsing settlement
drafts and hereby assigns to Xxxxxx Capital all sums which may become payable
under such insurance, including return premiums and dividends, as additional
security for the Obligations.
(j) To
immediately notify Xxxxxx Capital in writing of any change in or discontinuance
of Company's or Material Accommodation Party’s place or places of
business.
4. Default. If
any of the following occur (a "Default"), provided the same is not cured within
fifteen (15) days after receipt of written notice from Xxxxxx Capital (other
than clause (a) below, as to which certain alternative cure periods are provided
under the Commercial Financing Agreement), Xxxxxx Capital may, but shall not be
required to, without presentment or demand, declare the immediate payment of the
Obligations, with all accrued interest, if any, and all applicable charges due
thereunder:
(a)
upon the
occurrence of a Default under the terms of the Commercial Financing Agreement;
or
(b) in
the event a Material Accommodation Party breaches or fails to comply with or
perform any terms of this Agreement or its Performance Covenant and Waiver;
or
(c) any false or misleading
representations or warranties made or given by a Material Accommodation Party in
connection with this Agreement; or
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 29
of 67
|
Exhibit
“D”
|
Security
Agreement
|
(d) upon the non-payment by
Company or any Material Accommodation Party of any charges of rent under any
premises used by the Company that is material to the ongoing operation of its
business, or the failure to comply with any terms of any such lease, which is
not cured within the time and in the manner provided for in the lease;
or
(e) upon the further
surrender, transfer, pledging, assignment or granting of a security interest by
Company or Material Accommodation Party in the Collateral without the prior
written consent of Xxxxxx Capital; or
(f) upon the attachment of
any further lien on the Company’s or Material Accommodation Party’s Collateral;
or
(g) the appointment of any
receiver or trustee for all or a substantial portion of the assets of the
Material Accommodation Party; or
(h) a general assignment for
the benefit of creditors by the Material Accommodation Party or a
voluntary or involuntary filing under any bankruptcy or similar law which
is not dismissed with prejudice within 60 days; or
(i) the
failure of the Material Accommodation Party to pay all taxes to every government
agency in a timely manner.
5. Remedies. If
any Default shall occur, which remains uncured, Xxxxxx Capital, in addition to
any other rights and remedies it may have at law, including those set forth
below, and shall have and may exercise immediately and without demand, any and
all rights and remedies granted to a secured party upon default under the UCC or
such other measures as Xxxxxx Capital deems necessary to preserve its security
interest in the Collateral.
(a) If
a Default shall occur and Xxxxxx Capital elects to declare the Obligations due
and payable in accordance with this Agreement, and the Company or Accommodation
Party fails to cure its default or pay the Obligations; Xxxxxx Capital may, but
shall not be obligated to, sell, assign and deliver the Collateral at public or
private sale, for cash, upon credit or for future delivery with or without
advertisement of the time, place or terms of sale except that if the sale be a
private sale, ten (10) days notice in writing from Xxxxxx Capital of the time
and place of sale and the terms of sale shall be given to the
Company. In case of any sale on credit or for future delivery, the
Collateral sold shall be retained by Xxxxxx Capital until the sale price is
paid, but Xxxxxx Capital shall incur no liability if the purchaser fails to take
up and pay for the Collateral sold, in which event the Collateral may again be
sold. At any sale, Xxxxxx Capital may purchase the Collateral sold,
free from all right of redemption of the Company which is hereby waived and
released.
(b) In
case of any sale, Xxxxxx Capital may first deduct all expenses of collection,
sale and delivery of the Collateral sold and any expenses incidental thereto,
including, but not limited to reasonable attorneys' fees, brokerage commissions
and transfer taxes, and may then apply the residue to any liability
of the Company under the Obligations, and shall return the surplus, if any, to
the Company. Any sale conducted upon the foregoing terms shall be
deemed commercially reasonable.
(c) The
Company agrees that Xxxxxx Capital shall have the right to continue to retain
the Collateral until such time that Xxxxxx Capital in its reasonable judgment
believes that an advantageous price can be secured for the Collateral; Xxxxxx
Capital shall not be liable to the Company or Accommodation Party for any loss
or potential loss in the value of the Collateral by reason of any such retention
of the Collateral by Xxxxxx Capital. If Xxxxxx Capital shall not
commence to dispose of the Collateral within ninety (90) days after the right to
dispose of the Collateral shall have accrued, then the Company or the
Accommodation Party shall have the right, at any time thereafter, and prior to
the time that Xxxxxx Capital shall commence to dispose of the Collateral to
request of Xxxxxx Capital that it dispose of the Collateral or the Company or
the Accommodation Party itself at its own cost and expense, has the right to
dispose of the Collateral provided, however, that in the case of the former,
Xxxxxx Capital shall not be obligated to dispose of the Collateral unless the
net proceeds to be received therefrom shall be sufficient to satisfy in full the
then obligations of the Company to Xxxxxx Capital, and that in the case of the
latter, any disposition of the Collateral by the Company or the Accommodation
Party must be upon terms and conditions consented to by Xxxxxx Capital, and
Xxxxxx Capital shall be obligated to give such consent if the net proceeds to be
received from such disposition shall be sufficient to satisfy in full the then
Obligations of the Company to Xxxxxx Capital.
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 30
of 67
|
Exhibit
“D”
|
Security
Agreement
|
(d) Xxxxxx
Capital shall not be liable to the Company or the Accommodation Party for any
agents' or brokers' fees incurred in connection with the sale of the
Collateral.
6. Uniform
Commercial Code. The UCC of the State of Alabama shall govern
the rights, duties and remedies of the parties and any provisions herein
declared invalid under any law shall not invalidate any other provisions of this
Agreement. The Company and Accommodation Party hereby authorizes
Xxxxxx Capital or its agents or assigns to sign and execute on the Company's and
Accommodation Party’s behalf any and all necessary UCC forms to perfect the
Security Agreement interest herein above granted to Xxxxxx Capital.
7. No
Offsets. The Company and the Accommodation Party covenants and
warrants that it is now the owner of the Collateral and that there are no
defenses or offsets to this Agreement or to the Performance Covenant And Waiver
which it secures.
8. Attorney-in-Fact. The
Company and Accommodation Party hereby irrevocably appoints Xxxxxx Capital as
its attorney-in-fact in connection with the Collateral and to execute and file
on its behalf any financing statements, or other statements in connection
therewith with the appropriate public office.
9. Joint and
Several Liability. In the event this Agreement is executed by
more than one person, firm or corporation, the liability of the entities
executing this Agreement shall be joint and several.
10. Reimbursement
- The Company agrees that, with or without notice or demand, it will reimburse
Xxxxxx Capital, for all costs and expenses (including, without limitation,
reasonable attorney's fees) incurred by Xxxxxx Capital in connection with the
collection of the Obligations or any portion thereof or in any action or
proceeding brought by Xxxxxx Capital to enforce the obligations of the Company
or the Accommodation Party under this Agreement. Xxxxxx Capital shall
have the right but not the obligation to examine the Company's and Accommodation
Party’s books and records at any time during reasonable business hours in
accordance with the terms of the Commercial Financing Agreement. In
the event of a Default under this Agreement, Xxxxxx Capital shall have the right
to examine the Company's and Accommodation Party’s books once a month
and the Company and Accommodation Party shall pay for this expense.
11. Application
of Payments - All moneys available to Xxxxxx Capital for application in
payment or reduction of the Obligations may be applied by Xxxxxx Capital in such
manner and in such amounts and at such time or times and in such order, priority
and proportions as Xxxxxx Capital may see fit to the payment or reduction of
such portion of the Obligations as Xxxxxx Capital may elect.
12. Successors
and Assigns - Each reference herein to Xxxxxx Capital shall be deemed to
include its successors and assigns, in whose favor the provisions of this
Agreement shall also inure. Each reference herein to the Company or
Accommodation Party shall be deemed to include the successors and assigns of the
Company or Accommodation Party, all of whom shall be bound by the provisions of
this Agreement, provided, however, that the Company and Accommodation Party
shall in no event or under any circumstance have the right, without obtaining
the prior written consent of Xxxxxx Capital, to assign or transfer the Company's
or Accommodation Party’s obligations and liabilities under this Agreement, in
whole or in part, to any other person, party or entity.
13. Non-Waiver
- No delay on the part of Xxxxxx Capital in exercising any right or remedy under
this Agreement or failure to exercise the same shall operate as a waiver in
whole or in part of any such right or remedy. No notice to or demand
on the Company or Accommodation Party shall be deemed to be a waiver of the
obligation of the Company or Accommodation Party or the right of Xxxxxx Capital
to take further action without notice or demand as provided in this
Agreement.
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 31
of 67
|
Exhibit
“D”
|
Security
Agreement
|
14. Further
Modification - This Agreement may only be modified, amended, changed or
terminated by an agreement in writing signed by Xxxxxx Capital, the Company, and
the Accommodation Party. No waiver of any term, covenant or provision
of this Agreement shall be effective unless given in writing by Xxxxxx Capital
and if so given by Xxxxxx Capital shall only be effective in the specific
instance in which given.
15. Unconditional
Agreement - The Company and Accommodation Party acknowledge that this
Agreement and the Company's and Accommodation Party’s obligations under this
Agreement are and shall at all times continue to be absolute and unconditional
in all respects, and shall at all times be valid and enforceable irrespective of
any other agreements or circumstances of any nature whatsoever which might
otherwise constitute a defense to this Agreement and the obligations of the
Company or Accommodation Party under this Agreement or the obligations of any
other person or party relating to this Agreement or the obligations of the
Company or Accommodation Party thereunder or otherwise with respect to the
Obligations. This Agreement sets forth the entire agreement and
understanding of Xxxxxx Capital, the Company, and the Accommodation Party and
the Company and Accommodation Party absolutely, unconditionally and
irrevocably waive any and all rights to assert any defense, set-off,
counterclaim or cross claim of any nature whatsoever with respect this Agreement
or the obligations of any other person or party (including, without limitation,
Company or Accommodation Party) relating to this Agreement or the obligations of
the Company or Accommodation Party hereunder or otherwise with respect to the
Obligations in any action or proceeding brought by Xxxxxx Capital to collect the
Obligations, or any portion thereof, or to enforce the obligations of the
Company or Accommodation Party under this Agreement, except in the case of the
gross negligence or willful misconduct of Xxxxxx Capital. The Company
and Accommodation Party acknowledges that no oral or other agreements,
understandings, representations or warranties exist with respect to
the obligations of the Company or Accommodation Party under this Agreement,
except those specifically set forth in this Agreement.
16. No Jury
Trial - The Company and Accommodation Party hereby irrevocably and
unconditionally waives, and Xxxxxx Capital by its acceptance of this Agreement
irrevocably and unconditionally waives, any and all right to trial by jury in
any action, suit or counterclaim arising in connection with, out of or
otherwise relating to this Agreement.
17. No
Subrogation - Notwithstanding any payments made by the Company or
Accommodation Party pursuant to the provisions of this Agreement, the Company
shall have no right of subrogation in and to the Commercial Financing Agreement
or any other security held by or available to Xxxxxx Capital for the Obligations
or the payment thereof until the Obligations have been paid in full to Xxxxxx
Capital.
18. Actions
and Proceedings. Xxxxxx Capital may, but shall not be
obligated to appear in and defend any action or proceeding brought with respect
to the Collateral and to bring any action or proceeding, in the name and on
behalf of Company or Accommodation Party, which Xxxxxx Capital, in its
discretion, feels should be brought to protect its interest in the
Collateral.
19. Further
Instruments. Company and Accommodation Party agree that, upon
request from time to time of Xxxxxx Capital, it will, at its expense, execute,
acknowledge and deliver all such additional instruments and further assurances
and will do or cause to be done all such further acts and things as may be
reasonably necessary to fully establish, confirm or perfect from time to time
the security interest of Xxxxxx Capital in the Collateral.
20. Governing
Law - This Agreement is, and shall be deemed to be, a contract entered
into under and pursuant to the laws of the State of Alabama and shall be in all
respects governed, construed, applied and enforced in accordance with the laws
of the State of Alabama. No defense given or allowed by the laws of
any other state or country shall be interposed in any action or proceeding
hereon unless such defense is also given or allowed by the laws of the State of
Alabama.
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 32
of 67
|
Exhibit
“D”
|
Security
Agreement
|
21. Jurisdiction
- All of the parties hereto agree to submit to personal jurisdiction and
acknowledge they have sufficient minimum contacts with the State of Alabama for
any action or proceeding arising out of this Agreement and, in furtherance of
such agreement, they hereby agree and consent that without limiting other
methods of obtaining jurisdiction, that personal jurisdiction in any such action
or proceeding may be obtained within or without the jurisdiction of any court
located in Alabama and that any process or notice or motion or other application
to any such court in connection with any such action or proceeding may be served
by registered or certified mail, return receipt requested, to or by personal
service at their last known address whether such address be within or without
the jurisdiction of any such court.
22. Notices
- All notices, demands or requests (collectively, "Notice") made
pursuant to, under or by virtue of this Agreement must be in writing and sent to
the party or parties to whom or to which such Notice is being sent, by certified
or registered mail, return receipt requested, reputable overnight courier or
delivered by hand with receipt acknowledged in writing to the addresses first
hereinabove set forth. All notices shall be deemed given as follows:
(a) if by hand, immediately upon delivery along with said receipt evidencing
such by hand delivery; (b) if certified or registered mail, return receipt
requested, postage prepaid on the fifth (5th) business day after mailing; if by
nationally recognized overnight courier or any other overnight delivery service,
on the first business day after dispatch. All notices may be given
either by a party or such party's attorneys.
23. Duplicate
Originals - This Agreement may be executed in any number of duplicate
originals and each such duplicate original shall be deemed to constitute but one
and the same instrument.
24. Headings,
Etc. - The headings, titles and captions of various paragraphs
of this Agreement are for convenience of reference only and are not to be
construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date and year first above
written.
COMPANY:
|
PURE EARTH MATERIALS,
INC., a Pennsylvania corporation
|
|||
|
By:
|
/s/ Xxxxx
Xxxxxxxxxx
|
||
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
||
|
Title:
|
Treasurer
|
||
|
PEI DISPOSAL GROUP,
INC., a Delaware corporation
|
|||
|
By:
|
/s/ Xxxxx
Xxxxxxxxxx
|
||
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
||
|
Title:
|
Treasurer
|
||
|
PURE EARTH TRANSPORTATION &
DISPOSAL, INC., a
Delaware
corporation
|
|||
|
By:
|
/s/ Xxxxx
Xxxxxxxxxx
|
||
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
||
|
Title:
|
Treasurer
|
||
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 33
of 67
|
Exhibit
“D”
|
Security
Agreement
|
|
PURE EARTH RECYCLING (NJ),
INC., a Delaware corporation
|
|||
|
By:
|
/s/ Xxxxx
Xxxxxxxxxx
|
||
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
||
|
Title:
|
Treasurer
|
||
|
ACCOMMODATION
PARTY:
|
|||
|
PURE EARTH, INC., a
Delaware corporation
|
|||
|
By:
|
/s/ Xxxxx
Xxxxxxxxxx
|
||
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
||
|
Title:
|
CFO
|
||
|
PURE EARTH ENVIRONMENTAL,
INC, a Delaware corporation
|
|||
|
By:
|
/s/ Xxxxx
Xxxxxxxxxx
|
||
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
||
|
Title:
|
Treasurer
|
||
|
REZULTZ, INCORPORATED, a
New Jersey corporation
|
|||
|
By:
|
/s/ Xxxxx
Xxxxxxxxxx
|
||
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
||
|
Title:
|
Treasurer
|
||
|
BIO METHODS LLC, a
Delaware limited liability company
|
|||
|
By:
|
/s/ Xxxxx
Xxxxxxxxxx
|
||
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
||
|
Title:
|
Treasurer
|
||
|
PURE EARTH MATERIALS (NJ)
INC., a Delaware corporation
|
|||
|
By:
|
/s/ Xxxxx
Xxxxxxxxxx
|
||
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
||
|
Title:
|
Treasurer
|
||
|
JUDA CONSTRUCTION, LTD,
a New York corporation
|
|||
|
By:
|
/s/ Xxxxx
Xxxxxxxxxx
|
||
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
||
|
Title:
|
President/ Treasurer
|
||
|
ECHO LAKE XXXXXXXXXX,
LLC, a Connecticut limited liability
company
|
|||
|
By:
|
/s/ Xxxxx
Xxxxxxxxxx
|
||
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
||
|
Title:
|
Treasurer
|
||
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 34
of 67
|
Exhibit
“D”
|
Security
Agreement
|
|
NEW NYCON, INC., a
Delaware corporation
|
|||
|
By:
|
/s/ Xxxxx
Xxxxxxxxxx
|
||
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
||
|
Title:
|
Treasurer
|
||
|
PURE EARTH ENERGY RESOURCES,
INC., a Delaware
corporation
|
|||
|
By:
|
/s/ Xxxxx
Xxxxxxxxxx
|
||
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
||
|
Title:
|
Treasurer
|
||
|
XXXXXX
CAPITAL
|
|||
|
XXXXXX
CAPITAL CORPORATION
|
|||
|
By:
|
/s/ Xxx
Xxxxxxxxxx
|
||
|
Print
Name:
|
Xxx Xxxxxxxxxx
|
||
|
Title:
|
EVP, a duly authorized
officer
|
||
Exhibit 10.1- Commercial Financing Agreement Dated February 11, 2010
Page 35
of 67
|
Exhibit
"D"
|
Security
Agreement
|
SCHEDULE
3(b)
to
Security
Agreement
REPRESENTATIONS
AND WARRANTIES
PEI
Disposal Group, Inc.
The below
accounts that have “lien
filed”
represent liens filed on job sites in order to force payment to us.
These
customers may claim that they haven’t
been paid by their customer so they can’t
afford to pay us.
The below
accounts that have “suit”
represent legal action taken by us to collect a debt.
These
customers have disputed the balance owed or have been non-responsive. Most of
these accounts are over 90
days.
|
Don
Carlo Environmental Services, Inc.
|
$ | 13,381.21 |
Lien
filed
|
||
|
Environmental
Technologies Group, Inc.
|
$ | 37,678.08 |
Lien
filed
|
||
|
V&J Mechanical
Corp.
|
$ | 1,427.90 |
Lien
filed
|
||
|
Hydro
Tech Environmental
|
$ | 3,330.93 |
Lien
filed
|
||
|
Tri-State
Environmental of NJ - Xxxxxx Residence
|
$ | 6,500.00 |
Lien
filed
|
||
|
Tri-State
Environmental of NJ - Xxxxx Property
|
$ | 3,000.00 |
Lien
filed
|
||
|
Tri-State
Environmental of NJ - Xxxxxxxx-Xxxxxxx Residence
|
$ | 3,373.48 |
Lien
filed
|
||
|
Tri-State
Environmental of NJ - Xxxxx Residence
|
$ | 5,000.00 |
Lien
filed
|
||
|
Hill
Remediation & Construction - Xxxxxx, Inc.
|
$ | 4,094.79 |
Lien
filed
|
||
|
XX
Xxxxxxx Environmental
|
$ | 45,130.86 |
Suit
|
||
|
Tanks
A lot, LLC
|
$ | 12,492.40 |
Suit
|
||
|
Xxxxxxx
Construction Corp.
|
$ | 70,684.48 |
Lien
filed/suit
|
||
|
Grinell
Recycling
|
$ | 3,291.84 |
Suit
|
Pure
Earth Transportation and Disposal, Inc.
|
Impact
Environmental
|
$ | 8,950.00 |
Lien
filed
|
||
|
Civetta
Cousins
|
$ | 175,000.00 |
Union
Holdback for $300,000
|
||
|
This
account has a special agreement to hold up to $300,000 until union benefits
for truckers are paid.
|
|||||
|
Sky
Materials
|
$ | 279,614.96 |
Lien
filed/suit
|
||
|
S3
Constructors
|
$ | 378,320.49 |
Bonding
Job
|
||
|
AP&P
bond is posted by us so the bonding company has a contingent first
position on
A/R.
|
|||||
|
Pure
Earth, Inc. NONE
|
|
|
Pure
Earth Materials,
Inc. NONE
|
|
|
Pure
Earth Environmental, Inc.
|
NONE
|
|
Echo
Lake Xxxxxxxxxx, LLC
|
NONE
|
|
Rezultz,
Inc.
|
NONE
|
|
New
Nycon, Inc.
|
NONE
|
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 36
of 67
|
Exhibit
“E”
|
Certified
Copy of Resolutions
|
CERTIFIED
COPY OF RESOLUTIONS
PURE
EARTH MATERIALS, INC.,
a
Pennsylvania corporation
"RESOLVED,
that the Commercial Financing Agreement dated as of the 11th day of February,
2010 between PURE EARTH MATERIALS, INC., a Pennsylvania corporation, PEI
DISPOSAL GROUP, INC., a Delaware corporation, PURE EARTH TRANSPORTATION &
DISPOSAL, INC., a Delaware corporation, PURE EARTH RECYCLING (NJ), INC., a
Delaware corporation, and XXXXXX CAPITAL CORPORATION and all other agreements
and documents connected therewith be, and the same hereby are, approved on the
terms and conditions as set forth therein;
"RESOLVED,
that any officer of PURE EARTH MATERIALS, INC., a Pennsylvania corporation be,
and he hereby is, authorized and directed to enter into said agreement and all
other agreements and documents connected therewith and to execute the same for
and on behalf of PURE EARTH MATERIALS, INC., a Pennsylvania corporation on the
terms and conditions set forth therein;
"RESOLVED,
that any officer of PURE EARTH MATERIALS, INC., a Pennsylvania corporation be,
and he hereby is, authorized and directed to negotiate, agree upon, execute and
deliver, from time to time, in the name of and on behalf of, PURE EARTH
MATERIALS, INC., a Pennsylvania corporation, such agreements, amendments and
supplements to said agreement or any other agreement or documents connected
therewith, documents, instruments, certificates, notices, and further
assurances, and to perform any and all such acts and things as may be required
by XXXXXX CAPITAL CORPORATION in connection with said agreement or any other
agreement or document connected therewith, or may to him seem necessary or
proper to implement and effect complete consummation of said agreement or any
other agreement or document connected therewith in all respects and the purposes
set forth in these resolutions;
"RESOLVED, that
these resolutions shall remain in full force and effect until written notice of
their amendment or repeal shall be received by XXXXXX CAPITAL CORPORATION and
until all indebtedness and obligations arising out of said agreement and all
other agreements and documents connected therewith shall have been paid and
satisfied in full."
The
undersigned, as the duly constituted Secretary of PURE EARTH MATERIALS, INC., a
Pennsylvania corporation hereby certifies that the foregoing is a true and
correct copy of the resolutions duly adopted by unanimous consent in writing the
Board of Directors of PURE EARTH MATERIALS, INC., a Pennsylvania corporation, as
of the 11th day of
February, 2010; that said resolutions are in full force and effect; and that the
following is a true and correct list of the present officers of the
corporation:
|
Xxxx Xxxxxxxxx
|
,
President
|
|
|
Xxxx Xxxxxxx
|
,
Vice President
|
|
|
Xxxxx Xxxxxxxxxx
|
, Treasurer
|
|
|
Xxxxxx Xxxxxxxxx
|
, Secretary
|
|
|
/s/ Xxxxxx Xxxxxxxxx
|
||
|
Print
Name:
|
Xxxxxx Xxxxxxxxx
|
|
|
Secretary
of PURE EARTH MATERIALS, INC., a
Pennsylvania
corporation
|
||
|
(SEAL)
|
Dated:
____February 11,
2010_____________
|
|
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 37
of 67
|
Exhibit
“E”
|
Certified
Copy of Resolutions
|
CERTIFIED
COPY OF RESOLUTIONS
PEI
DISPOSAL GROUP, INC.,
a
Delaware corporation
"RESOLVED,
that the Commercial Financing Agreement dated as of the 11th day of February,
2010 between PURE EARTH MATERIALS, INC., a Pennsylvania corporation, PEI
DISPOSAL GROUP, INC., a Delaware corporation, PURE EARTH TRANSPORTATION &
DISPOSAL, INC., a Delaware corporation, PURE EARTH RECYCLING (NJ), INC., a
Delaware corporation and XXXXXX CAPITAL CORPORATION and all other agreements and
documents connected therewith be, and the same hereby are, approved on the terms
and conditions as set forth therein;
"RESOLVED,
that any officer of PEI DISPOSAL GROUP, INC., a Delaware corporation be, and he
hereby is, authorized and directed to enter into said agreement and all other
agreements and documents connected therewith and to execute the same for and on
behalf of PEI DISPOSAL GROUP, INC., a Delaware corporation on the terms and
conditions set forth therein;
"RESOLVED,
that any officer of PEI DISPOSAL GROUP, INC., a Delaware corporation be, and he
hereby is, authorized and directed to negotiate, agree upon, execute and
deliver, from time to time, in the name of and on behalf of, PEI DISPOSAL GROUP,
INC., a Delaware corporation, such agreements, amendments and supplements to
said agreement or any other agreement or documents connected therewith,
documents, instruments, certificates, notices, and further assurances, and to
perform any and all such acts and things as may be required by XXXXXX CAPITAL
CORPORATION in connection with said agreement or any other agreement or document
connected therewith, or may to him seem necessary or proper to implement and
effect complete consummation of said agreement or any other agreement or
document connected therewith in all respects and the purposes set forth in these
resolutions;
"RESOLVED,
that these resolutions shall remain in full force and effect until written
notice of their amendment or repeal shall be received by XXXXXX CAPITAL
CORPORATION and until all indebtedness and obligations arising out of said
agreement and all other agreements and documents connected therewith shall have
been paid and satisfied in full."
The
undersigned, as the duly constituted Secretary of PEI DISPOSAL GROUP, INC., a
Delaware corporation hereby certifies that the foregoing is a true and correct
copy of the resolutions duly adopted by unanimous consent in writing the Board
of Directors of PEI DISPOSAL GROUP, INC., a Delaware corporation, as of the
11th
day of February, 2010; that said resolutions are in full force and effect; and
that the following is a true and correct list of the present officers of the
corporation:
|
Xxxxxx Xxxxxxxxx
|
,
President
|
|
|
,
Vice President
|
||
|
Xxxxx Xxxxxxxxxx
|
, Treasurer
|
|
|
Xxxxxx Xxxxxxxxx
|
, Secretary
|
|
|
/s/ Xxxxxx Xxxxxxxxx
|
||
|
Print
Name:
|
Xxxxxx Xxxxxxxxx
|
|
|
Secretary
of PEI DISPOSAL GROUP, INC., a Delaware corporation
|
||
|
(SEAL)
|
Dated:
__February 11,
2010__________
|
|
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 38
of 67
|
Exhibit
“E”
|
Certified
Copy of Resolutions
|
CERTIFIED
COPY OF RESOLUTIONS
PURE
EARTH TRANSPORTATION & DISPOSAL, INC.,
a
Delaware corporation
"RESOLVED,
that the Commercial Financing Agreement dated as of the 11th day of February,
2010 between PURE EARTH MATERIALS, INC., a Pennsylvania corporation, PEI
DISPOSAL GROUP, INC., a Delaware corporation, PURE EARTH TRANSPORTATION &
DISPOSAL, INC., a Delaware corporation, PURE EARTH RECYCLING (NJ), INC., a
Delaware corporation, and XXXXXX CAPITAL CORPORATION and all other agreements
and documents connected therewith be, and the same hereby are, approved on the
terms and conditions as set forth therein;
"RESOLVED,
that any officer of PURE EARTH TRANSPORTATION & DISPOSAL, INC., a Delaware
corporation be, and he hereby is, authorized and directed to enter into said
agreement and all other agreements and documents connected therewith and to
execute the same for and on behalf of PURE EARTH TRANSPORTATION & DISPOSAL,
INC., a Delaware corporation on the terms and conditions set forth
therein;
"RESOLVED,
that any officer of PURE EARTH TRANSPORTATION & DISPOSAL, INC., a Delaware
corporation be, and he hereby is, authorized and directed to negotiate, agree
upon, execute and deliver, from time to time, in the name of and on behalf of,
PURE EARTH TRANSPORTATION & DISPOSAL, INC., a Delaware corporation, such
agreements, amendments and supplements to said agreement or any other agreement
or documents connected therewith, documents, instruments, certificates, notices,
and further assurances, and to perform any and all such acts and things as may
be required by XXXXXX CAPITAL CORPORATION in connection with said agreement or
any other agreement or document connected therewith, or may to him seem
necessary or proper to implement and effect complete consummation of said
agreement or any other agreement or document connected therewith in all respects
and the purposes set forth in these resolutions;
"RESOLVED, that
these resolutions shall remain in full force and effect until written notice of
their amendment or repeal shall be received by XXXXXX CAPITAL CORPORATION and
until all indebtedness and obligations arising out of said agreement and all
other agreements and documents connected therewith shall have been paid and
satisfied in full."
The
undersigned, as the duly constituted Secretary of PURE EARTH TRANSPORTATION
& DISPOSAL, INC., a Delaware corporation hereby certifies that the foregoing
is a true and correct copy of the resolutions duly adopted by unanimous consent
in writing the Board of Directors of PURE EARTH TRANSPORTATION & DISPOSAL,
INC., a Delaware corporation, as of the 11th day of
February, 2010; that said resolutions are in full force and effect; and that the
following is a true and correct list of the present officers of the
corporation:
|
Xxxxxx Xxxxxxxxx
|
,
President
|
|
|
,
Vice President
|
||
|
Xxxxx Xxxxxxxxxx
|
, Treasurer
|
|
|
Xxxxxx Xxxxxxxxx
|
, Secretary
|
|
|
/s/ Xxxxxx Xxxxxxxxx
|
||
|
Print
Name:
|
Xxxxxx Xxxxxxxxx
|
|
|
Secretary
of PURE EARTH TRANSPORTATION &
DISPOSAL,
INC., a Delaware corporation
|
||
|
(SEAL)
|
Dated:
_February 11,
2010___________
|
|
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 39
of 67
|
Exhibit
“E”
|
Certified
Copy of Resolutions
|
CERTIFIED
COPY OF RESOLUTIONS
PURE
EARTH RECYCLING (NJ), INC.,
a
New Jersey corporation
"RESOLVED,
that the Commercial Financing Agreement dated as of the 11th day of February,
2010 between PURE EARTH MATERIALS, INC., a Pennsylvania corporation, PEI
DISPOSAL GROUP, INC., a Delaware corporation, PURE EARTH TRANSPORTATION &
DISPOSAL, INC., a Delaware corporation, PURE EARTH RECYCLING (NJ), INC., a
Delaware corporation and XXXXXX CAPITAL CORPORATION and all other agreements and
documents connected therewith be, and the same hereby are, approved on the terms
and conditions as set forth therein;
"RESOLVED,
that any officer of PURE EARTH RECYCLING (NJ), INC., a Delaware corporation be,
and he hereby is, authorized and directed to enter into said agreement and all
other agreements and documents connected therewith and to execute the same for
and on behalf of PURE EARTH RECYCLING (NJ), INC., a Delaware corporation on the
terms and conditions set forth therein;
"RESOLVED,
that any officer of PURE EARTH RECYCLING (NJ), INC., a Delaware corporation be,
and he hereby is, authorized and directed to negotiate, agree upon, execute and
deliver, from time to time, in the name of and on behalf of, PURE EARTH
RECYCLING (NJ), INC., a Delaware corporation, such agreements, amendments and
supplements to said agreement or any other agreement or documents connected
therewith, documents, instruments, certificates, notices, and further
assurances, and to perform any and all such acts and things as may be required
by XXXXXX CAPITAL CORPORATION in connection with said agreement or any other
agreement or document connected therewith, or may to him seem necessary or
proper to implement and effect complete consummation of said agreement or any
other agreement or document connected therewith in all respects and the purposes
set forth in these resolutions;
"RESOLVED,
that these resolutions shall remain in full force and effect until written
notice of their amendment or repeal shall be received by XXXXXX CAPITAL
CORPORATION and until all indebtedness and obligations arising out of said
agreement and all other agreements and documents connected therewith shall have
been paid and satisfied in full."
The
undersigned, as the duly constituted Secretary of PURE EARTH RECYCLING (NJ),
INC., a Delaware corporation hereby certifies that the foregoing is a true and
correct copy of the resolutions duly adopted by unanimous consent in writing the
Board of Directors of PURE EARTH RECYCLING (NJ), INC., a Delaware corporation,
as of the 11th day of
February, 2010; that said resolutions are in full force and effect; and that the
following is a true and correct list of the present officers of the
corporation:
|
Xxxx Xxxxxxxxx
|
,
President
|
|
|
Xxxxxx Xxxxxxx
|
,
Vice President
|
|
|
Xxxxx Xxxxxxxx
|
,
Vice President
|
|
|
Xxxxx Xxxxxxxxxx
|
, Treasurer
|
|
|
Xxxxxx Xxxxxxxxx
|
, Secretary
|
|
|
/s/ Xxxxxx Xxxxxxxxx
|
||
|
Print
Name:
|
Xxxxxx Xxxxxxxxx
|
|
|
Secretary
of PURE EARTH RECYCLING (NJ), INC., a
Delaware
corporation
|
||
|
(SEAL)
|
Dated:
___February 11,
2010__________
|
|
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 40
of 67
|
Exhibit
“E”
|
Certified
Copy of Resolutions
|
CERTIFIED
COPY OF RESOLUTIONS
PURE
EARTH, INC., a Delaware corporation
"RESOLVED,
that this company acknowledges that PURE EARTH MATERIALS, INC., a Pennsylvania
corporation, PEI DISPOSAL GROUP, INC., a Delaware corporation, PURE EARTH
TRANSPORTATION & DISPOSAL, INC., a Delaware corporation and PURE EARTH
RECYCLING (NJ), INC., a Delaware corporation have entered into a Commercial
Financing Agreement dated as of the 11th day of February, 2010 with XXXXXX
CAPITAL CORPORATION
“RESOLVED
that it is in the best interest of PURE EARTH, INC., a Delaware corporation for
PURE EARTH MATERIALS, INC., a Pennsylvania corporation, PEI DISPOSAL GROUP,
INC., a Delaware corporation, PURE EARTH TRANSPORTATION & DISPOSAL, INC., a
Delaware corporation, and PURE EARTH RECYCLING (NJ), INC., a Delaware
corporation to enter into such Commercial Financing Agreement, and that in order
to induce Xxxxxx Capital Corporation to accept this Commercial Financing
Agreement, this corporation will enter into a Security Agreement, a Performance
Covenant And Waiver and all other agreements and documents connected therewith,
all of which are hereby approved on the terms and conditions as set forth
therein;
"RESOLVED,
that any officer of PURE EARTH, INC., a Delaware corporation be, and he hereby
is, authorized and directed to enter into said agreements and all other
agreements and documents connected therewith and to execute the same for and on
behalf of PURE EARTH, INC., a Delaware corporation on the terms and conditions
set forth therein;
"RESOLVED,
that any officer of PURE EARTH, INC., a Delaware corporation be, and he hereby
is, authorized and directed to negotiate, agree upon, execute and deliver, from
time to time, in the name of and on behalf of, PURE EARTH, INC., a Delaware
corporation, such agreements, amendments and supplements to said agreement or
any other agreement or documents connected therewith, documents, instruments,
certificates, notices, and further assurances, and to perform any and all such
acts and things as may be required by XXXXXX CAPITAL CORPORATION in connection
with said agreements or any other agreement or document connected therewith, or
may to him seem necessary or proper to implement and effect complete
consummation of said agreement or any other agreement or document connected
therewith in all respects and the purposes set forth in these
resolutions;
"RESOLVED, that
these resolutions shall remain in full force and effect until written notice of
their amendment or repeal shall be received by XXXXXX CAPITAL CORPORATION and
until all indebtedness and obligations arising out of said agreements and all
other agreements and documents connected therewith shall have been paid and
satisfied in full."
The
undersigned, as the duly constituted Secretary of PURE EARTH, INC., a Delaware
corporation hereby certifies that the foregoing is a true and correct copy of
the resolutions duly adopted by unanimous consent in writing the Board of
Directors of PURE EARTH, INC., a Delaware corporation, as of the
11th_day of February, 2010; that said resolutions are in full force and effect;
and that the following is a true and correct list of the present officers of the
corporation:
|
Xxxx
Xxxxxxxxx
|
,
President
|
|
|
Xxxxx
Xxxxxxxxxx
|
,
Vice President
|
|
|
Xxxxx
Xxxxxxxxxx
|
, Treasurer
|
|
|
Xxxxxx
Xxxxxxxxx
|
, Secretary
|
|
|
/s/
Xxxxxx Xxxxxxxxx
|
||
|
Print
Name:
|
Xxxxxx
Xxxxxxxxx
|
|
|
Secretary
of PURE EARTH, INC., a Delaware
corporation
|
||
|
(SEAL)
|
Dated:
|
February
11,
2010
|
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 41
of 67
|
Exhibit
“E”
|
Certified
Copy of Resolutions
|
CERTIFIED
COPY OF RESOLUTIONS
PURE
EARTH ENVIRONMENTAL, INC, a Delaware corporation
"RESOLVED,
that this company acknowledges that PURE EARTH MATERIALS, INC., a Pennsylvania
corporation, PEI DISPOSAL GROUP, INC., a Delaware corporation, PURE EARTH
TRANSPORTATION & DISPOSAL, INC., a Delaware corporation and PURE EARTH
RECYCLING (NJ), INC., a Delaware corporation have entered into a Commercial
Financing Agreement dated as of the 11th day of February, 2010 with XXXXXX
CAPITAL CORPORATION
“RESOLVED
that it is in the best interest of PURE EARTH ENVIRONMENTAL, INC, a Delaware
corporation for PURE EARTH MATERIALS, INC., a Pennsylvania corporation, PEI
DISPOSAL GROUP, INC., a Delaware corporation, PURE EARTH TRANSPORTATION &
DISPOSAL, INC., a Delaware corporation, and PURE EARTH RECYCLING (NJ), INC., a
Delaware corporation to enter into such Commercial Financing Agreement, and that
in order to induce Xxxxxx Capital Corporation to accept this Commercial
Financing Agreement, this corporation will enter into a Security Agreement, a
Performance Covenant And Waiver and all other agreements and documents connected
therewith, all of which are hereby approved on the terms and conditions as set
forth therein;
"RESOLVED,
that any officer of PURE EARTH ENVIRONMENTAL, INC, a Delaware corporation be,
and he hereby is, authorized and directed to enter into said agreements and all
other agreements and documents connected therewith and to execute the same for
and on behalf of PURE EARTH ENVIRONMENTAL, INC, a Delaware corporation on the
terms and conditions set forth therein;
"RESOLVED,
that any officer of PURE EARTH ENVIRONMENTAL, INC, a Delaware corporation be,
and he hereby is, authorized and directed to negotiate, agree upon, execute and
deliver, from time to time, in the name of and on behalf of, PURE EARTH
ENVIRONMENTAL, INC, a Delaware corporation, such agreements, amendments and
supplements to said agreement or any other agreement or documents connected
therewith, documents, instruments, certificates, notices, and further
assurances, and to perform any and all such acts and things as may be required
by XXXXXX CAPITAL CORPORATION in connection with said agreements or any other
agreement or document connected therewith, or may to him seem necessary or
proper to implement and effect complete consummation of said agreement or any
other agreement or document connected therewith in all respects and the purposes
set forth in these resolutions;
"RESOLVED, that
these resolutions shall remain in full force and effect until written notice of
their amendment or repeal shall be received by XXXXXX CAPITAL CORPORATION and
until all indebtedness and obligations arising out of said agreements and all
other agreements and documents connected therewith shall have been paid and
satisfied in full."
The
undersigned, as the duly constituted Secretary of PURE EARTH ENVIRONMENTAL, INC,
a Delaware corporation hereby certifies that the foregoing is a true and correct
copy of the resolutions duly adopted by unanimous consent in writing the Board
of Directors of PURE EARTH ENVIRONMENTAL, INC, a Delaware corporation, as
of the 11th day of February, 2010; that said resolutions are in full
force and effect; and that the following is a true and correct list of the
present officers of the corporation:
|
Xxxx Xxxxxxxxx
|
,
President
|
|
|
|
,
Vice President
|
|
|
Xxxxx Xxxxxxxxxx
|
, Treasurer
|
|
|
Xxxx Xxxxxxxxx
|
, Secretary
|
|
|
/s/ Xxxx
Xxxxxxxxx
|
||
|
Print
Name:
|
Xxxx Xxxxxxxxx
|
|
|
Secretary
of PURE EARTH ENVIRONMENTAL, INC, a Delaware
corporation
|
||
|
(SEAL)
|
Dated:
|
February
11,
2010
|
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 42
of 67
|
Exhibit
“E”
|
Certified
Copy of Resolutions
|
CERTIFIED
COPY OF RESOLUTIONS
REZULTZ,
INCORPORATED, a New Jersey corporation
"RESOLVED,
that this company acknowledges that PURE EARTH MATERIALS, INC., a Pennsylvania
corporation, PEI DISPOSAL GROUP, INC., a Delaware corporation, PURE EARTH
TRANSPORTATION & DISPOSAL, INC., a Delaware corporation and PURE EARTH
RECYCLING (NJ), INC., a Delaware corporation have entered into a Commercial
Financing Agreement dated as of the 11th day
of February, 2010 with XXXXXX CAPITAL CORPORATION
“RESOLVED
that it is in the best interest of REZULTZ, INCORPORATED, a New Jersey
corporation for PURE EARTH MATERIALS, INC., a Pennsylvania corporation, PEI
DISPOSAL GROUP, INC., a Delaware corporation, PURE EARTH TRANSPORTATION &
DISPOSAL, INC., a Delaware corporation, and PURE EARTH RECYCLING (NJ), INC., a
Delaware corporation to enter into such Commercial Financing Agreement, and that
in order to induce Xxxxxx Capital Corporation to accept this Commercial
Financing Agreement, this corporation will enter into a Security Agreement, a
Performance Covenant And Waiver and all other agreements and documents connected
therewith, all of which are hereby approved on the terms and conditions as set
forth therein;
"RESOLVED,
that any officer of REZULTZ, INCORPORATED, a New Jersey corporation be, and he
hereby is, authorized and directed to enter into said agreements and all other
agreements and documents connected therewith and to execute the same for and on
behalf of REZULTZ, INCORPORATED, a New Jersey corporation on the terms and
conditions set forth therein;
"RESOLVED,
that any officer of REZULTZ, INCORPORATED, a New Jersey corporation be, and he
hereby is, authorized and directed to negotiate, agree upon, execute and
deliver, from time to time, in the name of and on behalf of, REZULTZ,
INCORPORATED, a New Jersey corporation, such agreements, amendments and
supplements to said agreement or any other agreement or documents connected
therewith, documents, instruments, certificates, notices, and further
assurances, and to perform any and all such acts and things as may be required
by XXXXXX CAPITAL CORPORATION in connection with said agreements or any other
agreement or document connected therewith, or may to him seem necessary or
proper to implement and effect complete consummation of said agreement or any
other agreement or document connected therewith in all respects and the purposes
set forth in these resolutions;
"RESOLVED, that
these resolutoins shall remain in full force and effect until written notice of
their amendment or repeal shall be received by XXXXXX CAPITAL CORPORATION and
until all indebtedness and obligations arising out of said agreements and all
other agreements and documents connected therewith shall have been paid and
satisfied in full."
The
undersigned, as the duly constituted Secretary of REZULTZ, INCORPORATED, a New
Jersey corporation hereby certifies that the foregoing is a true and correct
copy of the resolutions duly adopted by unanimous consent in writing the Board
of Directors of REZULTZ, INCORPORATED, a New Jersey corporation, as
of the 11th day of
February, 2010; that said resolutions are in full force and effect; and that the
following is a true and correct list of the present officers of the
corporation:
|
Xxxx Xxxxxxxxx
|
,
President
|
|
|
|
,
Vice President
|
|
|
Xxxxx Xxxxxxxxxx
|
, Treasurer
|
|
|
Xxxxxx Xxxxxxxxx
|
, Secretary
|
|
|
/s/ Xxxxxx
Xxxxxxxxx
|
||
|
Print
Name:
|
Xxxxxx Xxxxxxxxx
|
|
|
Secretary
of REZULTZ, INCORPORATED, a New Jersey
corporation
|
||
|
(SEAL)
|
Dated:
|
February 11,
2010
|
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 43
of 67
|
Exhibit
“E”
|
Certified
Copy of Resolutions
|
CERTIFIED
COPY OF RESOLUTIONS
BIO
METHODS LLC, a Delaware limited liability company
"RESOLVED,
that this company acknowledges that PURE EARTH MATERIALS, INC., a Pennsylvania
corporation, PEI DISPOSAL GROUP, INC., a Delaware corporation, PURE EARTH
TRANSPORTATION & DISPOSAL, INC., a Delaware corporation and PURE EARTH
RECYCLING (NJ), INC., a Delaware corporation have entered into a Commercial
Financing Agreement dated as of the 11th day of February, 2010 with XXXXXX
CAPITAL CORPORATION
“RESOLVED
that it is in the best interest of BIO METHODS LLC, a Delaware limited liability
company for PURE EARTH MATERIALS, INC., a Pennsylvania corporation, PEI DISPOSAL
GROUP, INC., a Delaware corporation, PURE EARTH TRANSPORTATION & DISPOSAL,
INC., a Delaware corporation, and PURE EARTH RECYCLING (NJ), INC., a Delaware
corporation to enter into such Commercial Financing Agreement, and that in order
to induce Xxxxxx Capital Corporation to accept this Commercial Financing
Agreement, this company will enter into a Security Agreement, a Performance
Covenant And Waiver and all other agreements and documents connected therewith,
all of which are hereby approved on the terms and conditions as set forth
therein;
"RESOLVED,
that any officer of BIO METHODS LLC, a Delaware limited liability company be,
and he hereby is, authorized and directed to enter into said agreements and all
other agreements and documents connected therewith and to execute the same for
and on behalf of BIO METHODS LLC, a Delaware limited liability company on the
terms and conditions set forth therein;
"RESOLVED,
that any officer of BIO METHODS LLC, a Delaware limited liability company be,
and he hereby is, authorized and directed to negotiate, agree upon, execute and
deliver, from time to time, in the name of and on behalf of, BIO METHODS LLC, a
Delaware limited liability company, such agreements, amendments and supplements
to said agreement or any other agreement or documents connected therewith,
documents, instruments, certificates, notices, and further assurances, and to
perform any and all such acts and things as may be required by XXXXXX CAPITAL
CORPORATION in connection with said agreements or any other agreement or
document connected therewith, or may to him seem necessary or proper to
implement and effect complete consummation of said agreement or any other
agreement or document connected therewith in all respects and the purposes set
forth in these resolutions;
"RESOLVED, that
these resolutions shall remain in full force and effect until written notice of
their amendment or repeal shall be received by XXXXXX CAPITAL CORPORATION and
until all indebtedness and obligations arising out of said agreements and all
other agreements and documents connected therewith shall have been paid and
satisfied in full."
The
undersigned, as the duly constituted Secretary of BIO METHODS LLC, a Delaware
limited liability company hereby certifies that the foregoing is a true and
correct copy of the resolutions duly adopted by consent in writing
of the sole member of BIO METHODS LLC, a Delaware limited liability
company, as of the 11th day of
February, 2010; that said resolutions are in full force and effect; and that the
following is a true and correct list of the present officers of the
company:
|
Xxxxxx Xxxxxxxxx
|
,
President
|
|
|
|
,
Vice President
|
|
|
Xxxxx Xxxxxxxxxx
|
, Treasurer
|
|
|
Xxxxxx Xxxxxxxxx
|
, Secretary
|
|
|
/s/ Xxxxxx
Xxxxxxxxx
|
||
|
Print
Name:
|
Xxxxxx Xxxxxxxxx
|
|
|
Secretary
of BIO METHODS LLC, a Delaware limited liability
company
|
||
|
(SEAL)
|
Dated:
|
February 11,
2010
|
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 44
of 67
|
Exhibit
“E”
|
Certified
Copy of Resolutions
|
CERTIFIED
COPY OF RESOLUTIONS
PURE
EARTH MATERIALS (NJ) INC., a Delaware corporation
"RESOLVED,
that this company acknowledges that PURE EARTH MATERIALS, INC., a Pennsylvania
corporation, PEI DISPOSAL GROUP, INC., a Delaware corporation, PURE EARTH
TRANSPORTATION & DISPOSAL, INC., a Delaware corporation and PURE EARTH
RECYCLING (NJ), INC., a Delaware corporation have entered into a Commercial
Financing Agreement dated as of the 11th day of
February, 2010 with XXXXXX CAPITAL CORPORATION
“RESOLVED
that it is in the best interest of PURE EARTH MATERIALS (NJ) INC., a Delaware
corporation for PURE EARTH MATERIALS, INC., a Pennsylvania corporation, PEI
DISPOSAL GROUP, INC., a Delaware corporation, PURE EARTH TRANSPORTATION &
DISPOSAL, INC., a Delaware corporation, and PURE EARTH RECYCLING (NJ), INC., a
Delaware corporation to enter into such Commercial Financing Agreement, and that
in order to induce Xxxxxx Capital Corporation to accept this Commercial
Financing Agreement, this corporation will enter into a Security Agreement, a
Performance Covenant And Waiver and all other agreements and documents connected
therewith, all of which are hereby approved on the terms and conditions as set
forth therein;
"RESOLVED,
that any officer of PURE EARTH MATERIALS (NJ) INC., a Delaware corporation be,
and he hereby is, authorized and directed to enter into said agreements and all
other agreements and documents connected therewith and to execute the same for
and on behalf of PURE EARTH MATERIALS (NJ) INC., a Delaware corporation on the
terms and conditions set forth therein;
"RESOLVED,
that any officer of PURE EARTH MATERIALS (NJ) INC., a Delaware corporation be,
and he hereby is, authorized and directed to negotiate, agree upon, execute and
deliver, from time to time, in the name of and on behalf of, PURE EARTH
MATERIALS (NJ) INC., a Delaware corporation, such agreements, amendments and
supplements to said agreement or any other agreement or documents connected
therewith, documents, instruments, certificates, notices, and further
assurances, and to perform any and all such acts and things as may be required
by XXXXXX CAPITAL CORPORATION in connection with said agreements or any other
agreement or document connected therewith, or may to him seem necessary or
proper to implement and effect complete consummation of said agreement or any
other agreement or document connected therewith in all respects and the purposes
set forth in these resolutions;
"RESOLVED, that
these resolutions shall remain in full force and effect until written notice of
their amendment or repeal shall be received by XXXXXX CAPITAL CORPORATION and
until all indebtedness and obligations arising out of said agreements and all
other agreements and documents connected therewith shall have been paid and
satisfied in full."
The
undersigned, as the duly constituted Secretary of PURE EARTH MATERIALS (NJ)
INC., a Delaware corporation hereby certifies that the foregoing is a true and
correct copy of the resolutions duly adopted by unanimous consent in writing the
Board of Directors of PURE EARTH MATERIALS (NJ) INC., a Delaware corporation, as
of the 11th day of
February, 2010; that said resolutions are in full force and effect; and that the
following is a true and correct list of the present officers of the
corporation:
|
Xxxx Xxxxxxxxx
|
,
President
|
|
|
Xxxxx Xxxxxxxxxx
|
,
Vice President
|
|
|
Xxxxxx Xxxxxxxxx
|
, Treasurer
|
|
|
Xxxxxx Xxxxxxxxx
|
, Secretary
|
|
|
/s/ Xxxxxx
Xxxxxxxxx
|
||
|
Print
Name:
|
Xxxxxx Xxxxxxxxx
|
|
|
Secretary
of PURE EARTH MATERIALS (NJ) INC., a Delaware
Corporation
|
||
|
(SEAL)
|
Dated:
|
February 11,
2010
|
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 45
of 67
|
Exhibit
“E”
|
Certified
Copy of Resolutions
|
CERTIFIED
COPY OF RESOLUTIONS
JUDA
CONSTRUCTION, LTD, a New York corporation
"RESOLVED,
that this company acknowledges that PURE EARTH MATERIALS, INC., a Pennsylvania
corporation, PEI DISPOSAL GROUP, INC., a Delaware corporation, PURE EARTH
TRANSPORTATION & DISPOSAL, INC., a Delaware corporation and PURE EARTH
RECYCLING (NJ), INC., a Delaware corporation have entered into a Commercial
Financing Agreement dated as of the _11th_ day of February, 2010 with XXXXXX
CAPITAL CORPORATION
“RESOLVED
that it is in the best interest of JUDA CONSTRUCTION, LTD, a New York
corporation for PURE EARTH MATERIALS, INC., a Pennsylvania corporation, PEI
DISPOSAL GROUP, INC., a Delaware corporation, PURE EARTH TRANSPORTATION &
DISPOSAL, INC., a Delaware corporation, and PURE EARTH RECYCLING (NJ), INC., a
Delaware corporation to enter into such Commercial Financing Agreement, and that
in order to induce Xxxxxx Capital Corporation to accept this Commercial
Financing Agreement, this corporation will enter into a Security Agreement, a
Performance Covenant And Waiver and all other agreements and documents connected
therewith, all of which are hereby approved on the terms and conditions as set
forth therein;
"RESOLVED,
that any officer of JUDA CONSTRUCTION, LTD, a New York corporation be, and he
hereby is, authorized and directed to enter into said agreements and all other
agreements and documents connected therewith and to execute the same for and on
behalf of JUDA CONSTRUCTION, LTD, a New York corporation on the terms and
conditions set forth therein;
"RESOLVED,
that any officer of JUDA CONSTRUCTION, LTD, a New York corporation be, and he
hereby is, authorized and directed to negotiate, agree upon, execute and
deliver, from time to time, in the name of and on behalf of, JUDA CONSTRUCTION,
LTD, a New York corporation, such agreements, amendments and supplements to said
agreement or any other agreement or documents connected therewith, documents,
instruments, certificates, notices, and further assurances, and to perform any
and all such acts and things as may be required by XXXXXX CAPITAL CORPORATION in
connection with said agreements or any other agreement or document connected
therewith, or may to him seem necessary or proper to implement and effect
complete consummation of said agreement or any other agreement or document
connected therewith in all respects and the purposes set forth in these
resolutions;
"RESOLVED, that
these resolutions shall remain in full force and effect until written notice of
their amendment or repeal shall be received by XXXXXX CAPITAL CORPORATION and
until all indebtedness and obligations arising out of said agreements and all
other agreements and documents connected therewith shall have been paid and
satisfied in full."
The
undersigned, as the duly constituted Secretary of JUDA CONSTRUCTION, LTD, a New
York corporation hereby certifies that the foregoing is a true and correct copy
of the resolutions duly adopted by unanimous consent in writing the Board of
Directors of JUDA CONSTRUCTION, LTD, a New York corporation, as
of the 11th day of
February, 2010; that said resolutions are in full force and effect; and that the
following is a true and correct list of the present officers of the
corporation:
|
Xxxxx Xxxxxxxxxx
|
,
President
|
|
|
Xxxxxx Xxxxxxxxx
|
,
Vice President
|
|
|
Xxxxx Xxxxxxxxxx
|
, Treasurer
|
|
|
Xxxxxx Xxxxxxxxx
|
, Secretary
|
|
|
/s/ Xxxxxx
Xxxxxxxxx
|
||
|
Print
Name:
|
Xxxxxx Xxxxxxxxx
|
|
|
Secretary
of JUDA CONSTRUCTION, LTD, a New York
corporation
|
||
|
(SEAL)
|
Dated:
|
February 11,
2010
|
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 46
of 67
|
Exhibit
“E”
|
Certified
Copy of Resolutions
|
CERTIFIED
COPY OF RESOLUTIONS
ECHO
LAKE XXXXXXXXXX, LLC, a Connecticut limited liability company
"RESOLVED,
that this company acknowledges that PURE EARTH MATERIALS, INC., a Pennsylvania
corporation, PEI DISPOSAL GROUP, INC., a Delaware corporation, PURE EARTH
TRANSPORTATION & DISPOSAL, INC., a Delaware corporation and PURE EARTH
RECYCLING (NJ), INC., a Delaware corporation have entered into a Commercial
Financing Agreement dated as of the 11th day of February, 2010 with XXXXXX
CAPITAL CORPORATION
“RESOLVED
that it is in the best interest of ECHO LAKE XXXXXXXXXX, LLC, a Connecticut
limited liability company for PURE EARTH MATERIALS, INC., a Pennsylvania
corporation, PEI DISPOSAL GROUP, INC., a Delaware corporation, PURE EARTH
TRANSPORTATION & DISPOSAL, INC., a Delaware corporation, and PURE EARTH
RECYCLING (NJ), INC., a Delaware corporation to enter into such Commercial
Financing Agreement, and that in order to induce Xxxxxx Capital Corporation to
accept this Commercial Financing Agreement, this company will enter into a
Security Agreement, a Performance Covenant And Waiver and all other agreements
and documents connected therewith, all of which are hereby approved on the terms
and conditions as set forth therein;
"RESOLVED,
that any officer of ECHO LAKE XXXXXXXXXX, LLC, a Connecticut limited liability
company be, and he hereby is, authorized and directed to enter into said
agreements and all other agreements and documents connected therewith and to
execute the same for and on behalf of ECHO LAKE XXXXXXXXXX, LLC, a Connecticut
limited liability company on the terms and conditions set forth
therein;
"RESOLVED,
that any officer of ECHO LAKE XXXXXXXXXX, LLC, a Connecticut limited liability
company be, and he hereby is, authorized and directed to negotiate, agree upon,
execute and deliver, from time to time, in the name of and on behalf of, ECHO
LAKE XXXXXXXXXX, LLC, a Connecticut limited liability company, such agreements,
amendments and supplements to said agreement or any other agreement or documents
connected therewith, documents, instruments, certificates, notices, and further
assurances, and to perform any and all such acts and things as may be required
by XXXXXX CAPITAL CORPORATION in connection with said agreements or any other
agreement or document connected therewith, or may to him seem necessary or
proper to implement and effect complete consummation of said agreement or any
other agreement or document connected therewith in all respects and the purposes
set forth in these resolutions;
"RESOLVED, that
these resolutions shall remain in full force and effect until written notice of
their amendment or repeal shall be received by XXXXXX CAPITAL CORPORATION and
until all indebtedness and obligations arising out of said agreements and all
other agreements and documents connected therewith shall have been paid and
satisfied in full."
The
undersigned, as the duly constituted Secretary of ECHO LAKE XXXXXXXXXX, LLC, a
Connecticut limited liability company hereby certifies that the foregoing is a
true and correct copy of the resolutions duly adopted by consent in writing of
the sole member of ECHO LAKE XXXXXXXXXX, LLC, a Connecticut limited liability
company, as of the 11th day of
February, 2010; that said resolutions are in full force and effect; and that the
following is a true and correct list of the present officers of the
company:
|
Xxxx
Xxxxxxxxx
|
,
President
|
|
|
,
Vice President
|
||
|
Xxxxx
Xxxxxxxxxx
|
, Treasurer
|
|
|
Xxxx
Xxxxxxxxx
|
, Secretary
|
|
|
/s/ Xxxx
Xxxxxxxxx
|
||
|
Print
Name:
|
Xxxx
Xxxxxxxxx
|
|
|
Secretary
of ECHO LAKE XXXXXXXXXX, LLC, a Connecticut limited liability
company
|
||
|
(SEAL)
|
Dated:
|
February
11,
2010
|
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 47
of 67
|
Exhibit
“E”
|
Certified
Copy of Resolutions
|
CERTIFIED
COPY OF RESOLUTIONS
NEW
NYCON, INC., a Delaware corporation
"RESOLVED,
that this company acknowledges that PURE EARTH MATERIALS, INC., a Pennsylvania
corporation, PEI DISPOSAL GROUP, INC., a Delaware corporation, PURE EARTH
TRANSPORTATION & DISPOSAL, INC., a Delaware corporation and PURE EARTH
RECYCLING (NJ), INC., a Delaware corporation have entered into a Commercial
Financing Agreement dated as of the 11th day
of February, 2010 with XXXXXX CAPITAL CORPORATION
“RESOLVED
that it is in the best interest of NEW NYCON, INC., a Delaware corporation for
PURE EARTH MATERIALS, INC., a Pennsylvania corporation, PEI DISPOSAL GROUP,
INC., a Delaware corporation, PURE EARTH TRANSPORTATION & DISPOSAL, INC., a
Delaware corporation, and PURE EARTH RECYCLING (NJ), INC., a Delaware
corporation to enter into such Commercial Financing Agreement, and that in order
to induce Xxxxxx Capital Corporation to accept this Commercial Financing
Agreement, this corporation will enter into a Security Agreement, a Performance
Covenant And Waiver and all other agreements and documents connected therewith,
all of which are hereby approved on the terms and conditions as set forth
therein;
"RESOLVED,
that any officer of NEW NYCON, INC., a Delaware corporation be, and he hereby
is, authorized and directed to enter into said agreements and all other
agreements and documents connected therewith and to execute the same for and on
behalf of NEW NYCON, INC., a Delaware corporation on the terms and conditions
set forth therein;
"RESOLVED,
that any officer of NEW NYCON, INC., a Delaware corporation be, and he hereby
is, authorized and directed to negotiate, agree upon, execute and deliver, from
time to time, in the name of and on behalf of, NEW NYCON, INC., a Delaware
corporation, such agreements, amendments and supplements to said agreement or
any other agreement or documents connected therewith, documents, instruments,
certificates, notices, and further assurances, and to perform any and all such
acts and things as may be required by XXXXXX CAPITAL CORPORATION in connection
with said agreements or any other agreement or document connected therewith, or
may to him seem necessary or proper to implement and effect complete
consummation of said agreement or any other agreement or document connected
therewith in all respects and the purposes set forth in these
resolutions;
"RESOLVED, that
these resolutions shall remain in full force and effect until written notice of
their amendment or repeal shall be received by XXXXXX CAPITAL CORPORATION and
until all indebtedness and obligations arising out of said agreements and all
other agreements and documents connected therewith shall have been paid and
satisfied in full."
The
undersigned, as the duly constituted Secretary of NEW NYCON, INC., a Delaware
corporation hereby certifies that the foregoing is a true and correct copy of
the resolutions duly adopted by unanimous consent in writing the Board of
Directors of NEW NYCON, INC., a Delaware corporation, as of the
11th
day of February, 2010; that said resolutions are in full force and effect; and
that the following is a true and correct list of the present officers of the
corporation:
|
Xxxxxx Xxxxx
|
,
President
|
|
|
,
Vice President
|
||
|
Xxxxx Xxxxxxxxxx
|
, Treasurer
|
|
|
Xxxxxx Xxxxxxxxx
|
, Secretary
|
|
|
/s/ Xxxxxx Xxxxxxxxx
|
||
|
Print
Name:
|
Xxxxxx Xxxxxxxxx
|
|
|
Secretary
of NEW NYCON, INC., a Delaware corporation
|
||
|
(SEAL)
|
Dated:
|
February 11,
2010
|
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 48
of 67
|
Exhibit
“E”
|
Certified
Copy of Resolutions
|
CERTIFIED
COPY OF RESOLUTIONS
PURE
EARTH ENERGY RESOURCES, INC., a Delaware corporation
"RESOLVED,
that this company acknowledges that PURE EARTH MATERIALS, INC., a Pennsylvania
corporation, PEI DISPOSAL GROUP, INC., a Delaware corporation, PURE EARTH
TRANSPORTATION & DISPOSAL, INC., a Delaware corporation and PURE EARTH
RECYCLING (NJ), INC., a Delaware corporation have entered into a Commercial
Financing Agreement dated as of the 11th day
of February, 2010 with XXXXXX CAPITAL CORPORATION
“RESOLVED
that it is in the best interest of PURE EARTH ENERGY RESOURCES, INC., a Delaware
corporation for PURE EARTH MATERIALS, INC., a Pennsylvania corporation, PEI
DISPOSAL GROUP, INC., a Delaware corporation, PURE EARTH TRANSPORTATION &
DISPOSAL, INC., a Delaware corporation, and PURE EARTH RECYCLING (NJ), INC., a
Delaware corporation to enter into such Commercial Financing Agreement, and that
in order to induce Xxxxxx Capital Corporation to accept this Commercial
Financing Agreement, this corporation will enter into a Security Agreement, a
Performance Covenant And Waiver and all other agreements and documents connected
therewith, all of which are hereby approved on the terms and conditions as set
forth therein;
"RESOLVED,
that any officer of PURE EARTH ENERGY RESOURCES, INC., a Delaware corporation
be, and he hereby is, authorized and directed to enter into said agreements and
all other agreements and documents connected therewith and to execute the same
for and on behalf of PURE EARTH ENERGY RESOURCES, INC., a Delaware corporation
on the terms and conditions set forth therein;
"RESOLVED,
that any officer of PURE EARTH ENERGY RESOURCES, INC., a Delaware corporation
be, and he hereby is, authorized and directed to negotiate, agree upon, execute
and deliver, from time to time, in the name of and on behalf of, PURE EARTH
ENERGY RESOURCES, INC., a Delaware corporation, such agreements, amendments and
supplements to said agreement or any other agreement or documents connected
therewith, documents, instruments, certificates, notices, and further
assurances, and to perform any and all such acts and things as may be required
by XXXXXX CAPITAL CORPORATION in connection with said agreements or any other
agreement or document connected therewith, or may to him seem necessary or
proper to implement and effect complete consummation of said agreement or any
other agreement or document connected therewith in all respects and the purposes
set forth in these resolutions;
"RESOLVED, that
these resolutions shall remain in full force and effect until written notice of
their amendment or repeal shall be received by XXXXXX CAPITAL CORPORATION and
until all indebtedness and obligations arising out of said agreements and all
other agreements and documents connected therewith shall have been paid and
satisfied in full."
The
undersigned, as the duly constituted Secretary of PURE EARTH ENERGY RESOURCES,
INC., a Delaware corporation hereby certifies that the foregoing is a true and
correct copy of the resolutions duly adopted by unanimous consent in writing the
Board of Directors of PURE EARTH ENERGY RESOURCES, INC., a Delaware corporation,
as of the _11th _day of
February, 2010; that said resolutions are in full force and effect; and that the
following is a true and correct list of the present officers of the
corporation:
|
Xxxxxxx Case
|
,
President
|
|
|
,
Vice President
|
||
|
Xxxxx Xxxxxxxxxx
|
, Treasurer
|
|
|
Xxxxxx Xxxxxxxxx
|
, Secretary
|
|
|
/s/ Xxxxxx Xxxxxxxxx
|
||
|
Print
Name:
|
Xxxxxx Xxxxxxxxx
|
|
|
Secretary
of PURE EARTH ENERGY RESOURCES, INC., a
Delaware
corporation
|
||
|
(SEAL)
|
Dated:
___February 11,
2010______________
|
|
Exhibit 10.1- Commercial Financing Agreement Dated February 11,
2010
Page 49
of 67
|
Exhibit
“F”
|
Performance
Covenant And Waiver
|
PERFORMANCE
COVENANT AND WAIVER
WHEREAS, PURE EARTH MATERIALS,
INC., a Pennsylvania corporation with principal office for the
transaction of business at 0000 Xxxx Xxxxxx, Xxxxxxxxx, XX, 00000, PEI DISPOSAL GROUP, INC., a
Delaware corporation with principal office for the transaction of business at
0000 Xxxx Xxxxxx, Xxxxxxxxx, XX, 00000, PURE EARTH TRANSPORTATION &
DISPOSAL, INC., a Delaware corporation with principal office for the
transaction of business at 0000 Xxxx Xxxxxx, Xxxxxxxxx, XX, 00000, and PURE EARTH RECYCLING (NJ), INC.,
a Delaware corporation with principal office for the transaction of
business at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxx, XX, 00000 (hereinafter
jointly, severally and collectively referred to as the "Company"), has entered
into a commercial financing agreement and other related documents dated as of
the date hereof with XXXXXX
CAPITAL CORPORATION, an Alabama corporation with an office for the
transaction of business at 000 Xxxxxxx Xxxxxx, XX, XX, 00000; 00 Xxxxx Xxxxxx –
Xxxxxxxx X, Xxxxxxxxxx, XX 00000; and 0000 Xxxxx Xxx. Xxxxx, Xxxxxxxxxx, Xxxxxxx
00000, (hereinafter respectively referred to as the "Commercial Financing
Agreement" and "Xxxxxx Capital"), wherein Xxxxxx Capital has agreed to purchase
certain accounts receivable and/or invoices of the Company under certain terms
and conditions; and
WHEREAS, Xxxxxx Capital is
willing to purchase the accounts receivable and/or invoices from the Company
only if the undersigned executes and delivers this Performance Covenant and
Waiver (also referred to herein as the "Guaranty") guarantying payment to Xxxxxx
Capital of any of the Obligations of the Company (as defined herein) which may
become due and payable in the manner hereinafter provided.
NOW THEREFORE, in
consideration of Ten ($10.00) Dollars, and other good and valuable
consideration, the receipt of which is hereby acknowledged, and in order to
induce Xxxxxx Capital to enter into the Commercial Financing Agreement, the
undersigned covenants and agrees with Xxxxxx Capital as follows:
1. Guaranty
of Obligations - The undersigned, jointly and severally,
unconditionally guarantee to Xxxxxx Capital full payment and prompt and faithful
performance by the Company of all of its present and future Obligations (as that
term is defined in the Commercial Financing Agreement) to Xxxxxx
Capital.
2. Default
- Any default in the payment or performance of any instrument
(including without limitation the Commercial Financing Agreement), or of the
Obligations hereby guaranteed shall be a default hereunder.
In the
event of any of the foregoing, the Obligations hereby guaranteed shall become,
for the purpose of this Agreement, due and payable by the undersigned forthwith
without demand or notice.
3. Authority
of Officers - Xxxxxx Capital shall not be required to inquire into the
powers of the Company or the officers, directors, agents, acting or purporting
to act in its behalf, and any Obligations made or created in reliance upon the
professed exercise of such powers shall be deemed to be guaranteed
hereunder.
4. Rights
are Independent - The Obligations of the undersigned are independent of
the obligations of the Company under the Commercial Financing Agreement, and
separate action or actions may be brought and prosecuted by Xxxxxx Capital
against the undersigned whether or not the Company is joined in any such action
or actions.
5. Partnership
or Association - If the Company is a partnership or other association,
this Agreement shall be extended to and include, in addition to the undersigned,
the person or persons for the time being and from time to time carrying on the
business now conducted by the Company, notwithstanding any change or changes in
the name, structure, and/or membership of the Company.
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 50
of 67
6. Financial
Condition of Company - The undersigned represent to Xxxxxx Capital that
they are now and will be completely familiar with the business, operation, and
overall economic condition of the Company and they hereby waive and relinquish
any duty on the part of Xxxxxx Capital to disclose any matter, fact, or thing
relating to the business, operation, or financial condition of the Company now
known or hereafter known by Xxxxxx Capital.
7. Guarantor's
Direct Benefit - The undersigned hereby represent and warranty that it is
in their direct economic interest to assist the Company because of the
undersigned's position(s) in and/or economic relation(s) with the
Company.
8. Joint and
Several Liability - All of the obligations of the undersigned (if more
than one) hereunder shall be joint and several.
9. Application
of Payments - All moneys available to Xxxxxx Capital for application in
payment or reduction of the Obligations may be applied by Xxxxxx Capital in such
manner and in such amounts and at such time or times and in such order, priority
and proportions as Xxxxxx Capital may see fit to the payment or reduction of
such portion of the Obligations as Xxxxxx Capital may elect.
10. Modifications
and Extensions - The undersigned hereby consents that from
time to time, before or after any default by Company, with notice to or assent
from the undersigned, any security at any time held by or available to Xxxxxx
Capital for any obligation of Company for all or any portion of the Obligations,
may be exchanged, surrendered or released and any obligation of Company, may be
changed, altered, renewed, extended, continued, surrendered, compromised, waived
or released in whole or in part, or any default with respect thereto waived, and
may extend further credit in any manner whatsoever to Company, and generally
deal with Company or any such security as Xxxxxx Capital may see fit; and the
undersigned shall remain bound under this Guaranty notwithstanding any such
exchange, surrender, release, change, alteration, renewal, extension,
continuance, compromise, waiver, inaction, extension of further credit or other
dealings.
11. Waiver of
Notice - The undersigned hereby waives (a) notice of acceptance of this
Performance Covenant and Waiver and Guaranty and notice of the making any
advance by Xxxxxx Capital to Company under the Commercial Financing Agreement;
(b) presentment and demand for payment of the Obligations or any portion
thereof; (c) protest and notice of dishonor or default to the undersigned or to
any other person or party with respect to the Obligations or any portion
thereof; (d) all notices to which the undersigned might otherwise be entitled
provided notice is given to the Company if required pursuant to the terms of the
Commercial Financing Agreement and; (e) any demand for payment under this
Guaranty.
12. Guaranty
of Payment - This is a guaranty of payment and not of collection and the
undersigned further waives any right to require that any action be brought
against Company or any other person or party or to require that resort be had to
any security.
13. Successors
and Assigns - Each reference herein to Xxxxxx Capital shall be deemed to
include its successors and assigns, in whose favor the provisions of this
Guaranty shall also inure. Each reference herein to the undersigned
shall be deemed to include the successors and assigns of the
undersigned, all of whom shall be bound by the provisions of this Guaranty,
provided, however, that the undersigned shall in no event or under any
circumstance have the right, without obtaining the prior written consent of
Xxxxxx Capital, to assign or transfer the undersigned's obligations and
liabilities under this Guaranty, in whole or in part, to any other person, party
or entity.
14. Non-Waiver
- No delay on the part of Xxxxxx Capital in exercising any right or remedy under
this Guaranty or failure to exercise the same shall operate as a waiver in whole
or in part of any such right or remedy. No notice to or demand on the
undersigned shall be deemed to be a waiver of the obligation of the undersigned
or the right of the Xxxxxx Capital to take further action without notice or
demand as provided in this Guaranty.
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 51
of 67
15. Further
Modification - This Performance Covenant and Waiver may only be modified,
amended, changed or terminated by an agreement in writing signed by Xxxxxx
Capital and the undersigned. No waiver of any term, covenant or
provision of this Guaranty shall be effective unless given in writing by Xxxxxx
Capital and if so given by Xxxxxx Capital shall only be effective in the
specific instance in which given.
16. Unconditional
Guaranty - The undersigned acknowledges that this Guaranty and the
undersigned's obligations under this Guaranty are and shall at all times
continue to be absolute and unconditional in all respects, and shall at all
times be valid and enforceable irrespective of any other agreements or
circumstances of any nature whatsoever which might otherwise constitute a
defense to this Guaranty and the obligations of the undersigned under this
Guaranty or the obligations of any other person or party (including, without
limitation, the Company) relating to this Guaranty or the obligations of the
undersigned thereunder or otherwise with respect to the
Obligations. This Performance Covenant and Waiver sets forth the
entire agreement and understanding of Xxxxxx Capital and the undersigned, and
the undersigned absolutely, unconditionally and irrevocably waives any and all
rights to assert any defense, set-off, counterclaim or cross claim of any nature
whatsoever with respect this Guaranty or the obligations of any other person or
party (including, without limitation, the Company) relating to this Guaranty or
the obligations of the undersigned hereunder or otherwise with respect to the
Obligations in any action or proceeding brought by Xxxxxx Capital to collect the
Obligations, or any portion thereof, or to enforce the obligations of the
undersigned under this Guaranty. The undersigned acknowledges that no
oral or other agreements, understandings, representations or warranties exist
with respect to the obligations of the undersigned under this Guaranty, except
those specifically set forth in this Guaranty.
17. No Jury
Trial - The undersigned hereby irrevocably and unconditionally waives,
and Xxxxxx Capital by its acceptance of this Guaranty irrevocably and
unconditionally waives, any and all right to trial by jury in any action, suit
or counterclaim arising in connection with, out of or otherwise relating to this
Guaranty.
18. No
Subrogation - Notwithstanding any payments made by the undersigned
pursuant to the provisions of this Guaranty, the undersigned shall have no right
of subrogation in and to the Commercial Financing Agreement or any other
security held by or available to Xxxxxx Capital for the Obligations or the
payment thereof until the Obligations have been paid in full to Xxxxxx
Capital.
19. Governing
Law - This Guaranty is, and shall be deemed to be, a contract entered
into under and pursuant to the laws of the State of Alabama and shall be in all
respects governed, construed, applied and enforced in accordance with the laws
of the State of Alabama. No defense given or allowed by the laws of
any other state or country shall be interposed in any action or proceeding
hereon unless such defense is also given or allowed by the laws of the State of
Alabama. If a law, which applies to this Agreement and which sets
maximum loan charges, is finally interpreted so that the fees charged by Xxxxxx
Capital to the undersigned or other charges collected or to be collected in
connection with this Agreement or the Commercial Financing Agreement exceed the
permitted limits under any applicable law or statute, then: (i) any
such charge shall be reduced by the amount necessary to reduce the charge to the
permitted limit; and (ii) any sums already collected from the
undersigned which exceeded permitted limits will be applied and shall be deemed
to have been payments in reduction of any sum owed by the Company.
20. Jurisdiction
- All of the parties hereto agree to submit to personal jurisdiction and
acknowledge they have sufficient minimum contacts with the State of Alabama in
any action or proceeding arising out of this Guaranty and, in furtherance of
such agreement, they hereby agree and consent that without limiting other
methods of obtaining jurisdiction, that personal jurisdiction in any such action
or proceeding may be obtained within or without the jurisdiction of any court
located in Alabama and that any process or notice or motion or other application
to any such court in connection with any such action or proceeding may be served
by registered or certified mail, return receipt requested, to or by personal
service at their last known address whether such address be within or without
the jurisdiction of any such court.
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 52
of 67
|
Exhibit
“G”
|
Misdirected
Payment
|
21. Notices
- All notices, demands or requests (collectively, "Notice") made pursuant to,
under or by virtue of this Guaranty must be in writing and sent to the party or
parties to whom or to which such Notice is being sent, by certified or
registered mail, return receipt requested, reputable overnight courier or
delivered by hand with receipt acknowledged in writing to the addresses first
hereinabove set forth. All notices (a) shall be deemed given when
received in accordance herewith and (b) may be given either by a party or such
party's attorneys.
22. Severability
- In case any right of Xxxxxx Capital herein shall be held to be invalid,
illegal, or unenforceable, such invalidity, illegality and/or unenforceability
shall not affect any other right granted hereby. When such
interpretation is appropriate, any word denoting gender used herein shall
include all persons, natural or artificial, and words used in the singular shall
include the plural. The undersigned agree(s) that upon request from Xxxxxx
Capital, it will, at its expense, execute, acknowledge, and deliver all such
additional instruments and further assurances and will do or cause to be done
all such further acts and things as may be reasonably necessary to fully
establish, confirm the intentions of this Agreement.
23. Duplicate
Originals - This Performance Covenant and Waiver may be executed in any
number of duplicate originals and each such duplicate original shall be deemed
to constitute but one and the same instrument.
24. Headings,
Etc. - The headings, titles and captions of various paragraphs
of this guaranty are for convenience of reference only and are not to be
construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
IN WITNESS WHEREOF, the
undersigned has duly executed this Performance Covenant and Waiver as of the
11th day of
February, 2010.
|
PURE EARTH MATERIALS, INC.,
a Pennsylvania corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
PEI DISPOSAL GROUP, INC.,
a Delaware corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
PURE EARTH TRANSPORTATION &
DISPOSAL, INC., a Delaware corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 53
of 67
|
Exhibit
“G”
|
Misdirected
Payment
|
|
PURE EARTH RECYCLING (NJ),
INC., a Delaware corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
PURE EARTH, INC., a
Delaware corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
CFO
|
|
|
PURE EARTH ENVIRONMENTAL,
INC, a Delaware corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
REZULTZ, INCORPORATED, a
New Jersey corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
BIO METHODS LLC, a
Delaware limited liability company
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
PURE EARTH MATERIALS (NJ)
INC., a Delaware corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
JUDA CONSTRUCTION, LTD,
a New York corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 54
of 67
|
Exhibit
“G”
|
Misdirected
Payment
|
|
ECHO LAKE XXXXXXXXXX,
LLC, a Connecticut limited liability company
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
NEW NYCON, INC., a
Delaware corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
PURE EARTH ENERGY RESOURCES,
INC., a Delaware corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
XXXXXX
CAPITAL
|
||
|
XXXXXX
CAPITAL CORPORATION
|
||
|
BY
|
/s/ Xxx Xxxxxxxxxx
|
|
|
Xxx
Xxxxxxxxxx, a duly authorized
officer
|
||
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 55
of 67
|
Exhibit
“G”
|
Misdirected
Payment
|
MISDIRECTED
PAYMENT
PURE
EARTH MATERIALS, INC., a Pennsylvania corporation, PEI DISPOSAL GROUP, INC., a
Delaware corporation, PURE EARTH TRANSPORTATION & DISPOSAL, INC., a Delaware
corporation, and PURE EARTH RECYCLING (NJ), INC., a Delaware corporation
(hereinafter jointly severally and collectively the “Company”) and PURE EARTH,
INC., a Delaware corporation, PURE EARTH ENVIRONMENTAL, INC, a Delaware
corporation, REZULTZ, INCORPORATED, a New Jersey corporation, BIO METHODS LLC, a
Delaware limited liability company, PURE EARTH MATERIALS (NJ) INC., a Delaware
corporation, JUDA CONSTRUCTION, LTD, a New York corporation, ECHO LAKE
XXXXXXXXXX, LLC, a Connecticut limited liability company, NEW NYCON, INC., a
Delaware corporation, and PURE EARTH ENERGY RESOURCES, INC., a Delaware
corporation (hereinafter jointly, severally and collectively the “Accommodation
Party) and Xxxx Xxxxxxxxx and Xxxxx Xxxxxxxxxx (hereinafter along with the
Company and the Accommodation Party, the “CLIENT”) agrees to the following:
Pursuant to the Commercial Finance Agreement of this date, CLIENT agrees that
even though Xxxxxx Capital Corporation (“PCC”) and CLIENT shall use their joint
best efforts to notify all customers/account debtors of Company of the
assignment by Company to PCC of certain accounts, some payments may be sent
directly to CLIENT which are the sole and exclusive property of PCC (i.e.,
payment on invoices financed by PCC). In such circumstances, CLIENT
promises not to negotiate said check or other forms of payment, but to hold them
in trust and safekeeping for the benefit of PCC and to turn over to PCC the
exact form of payment received. That is, CLIENT agrees to turn over
to PCC, immediately and in kind, any such check or other form of payment(s),
which is the property of PCC. Further with respect
thereto:
|
|
1.
|
CLIENT
acknowledges that it has been notified by PCC of the potential civil or
criminal liability or both for failure to fully comply herewith, that even
the cashing, depositing and/or negotiation of any payment which is the
property of PCC could result in civil and criminal liability or both and
the penalties attendant thereto. Even if some employee of
CLIENT negotiates such a check payment without CLIENT’s direct knowledge,
CLIENT may be held liable for the acts of CLIENT’s employees, agents, and
servants.
|
|
|
2.
|
CLIENT
acknowledges that it has been notified by PCC that an indebtedness by
CLIENT to PCC arising under circumstances as described herein above can
constitute a debt which cannot be discharged in a Court of Bankruptcy, and
that the conversion of check payments can be deemed an intentional act
even though CLIENT did not specifically intend to take or convert said
payments or damage PCC or both.
|
|
|
3.
|
CLIENT
further acknowledges that it has been notified by PCC of handling
procedures for any payments accepted via credit card for an outstanding
invoice, shall be remitted to PCC the third business day after credit card
payment is accepted and CLIENT shall provide a copy of the receipt or bank
transaction for said amount.
|
|
|
Executed
this 11th day
of February, 2010, at Birmingham,
Alabama.
|
|
PURE EARTH MATERIALS,
INC., a Pennsylvania corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 56
of 67
|
Exhibit
“G”
|
Misdirected
Payment
|
|
PEI DISPOSAL GROUP,
INC., a Delaware corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
PURE EARTH TRANSPORTATION &
DISPOSAL, INC., a Delaware corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
PURE EARTH RECYCLING (NJ),
INC., a Delaware corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
PURE EARTH, INC., a
Delaware corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
CFO
|
|
|
PURE EARTH ENVIRONMENTAL,
INC, a Delaware corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
REZULTZ, INCORPORATED, a
New Jersey corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
BIO METHODS LLC, a
Delaware limited liability company
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
PURE EARTH MATERIALS (NJ)
INC., a Delaware corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 57
of 67
|
Exhibit
“G”
|
Misdirected
Payment
|
|
JUDA CONSTRUCTION, LTD,
a New York corporation
|
||
|
By:
|
/s/ Xxxxx
Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
President
|
|
|
ECHO LAKE XXXXXXXXXX,
LLC, a Connecticut limited liability company
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
NEW NYCON, INC., a
Delaware corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
PURE EARTH ENERGY RESOURCES,
INC., a Delaware corporation
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxxxx Xxxxxxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
L.S.
|
|||
|
Xxxx
Xxxxxxxxx
|
(individually)
|
||
|
L.S.
|
|||
|
Xxxxx
Xxxxxxxxxx
|
(individually)
|
Exhibit
10.1- Commercial Financing Agreement Dated February 11,
2010
Page 58
of 67
|
Exhibit
“A”
|
Attachment
to UCC-1
|
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 59
of 67
|
Exhibit
“I”
|
Validity
Guaranty
|
VALIDITY
GUARANTY
Xxxxxx
Capital Corporation
0000
0xx
Xxxxxx Xxxxx
Xxxxxxxxxx,
XX 00000
Ladies
and Gentlemen:
The
undersigned is an officer, director and/or stockholder of PURE EARTH
MATERIALS, INC., a Pennsylvania corporation, PEI DISPOSAL GROUP, INC., a
Delaware corporation, PURE EARTH TRANSPORTATION & DISPOSAL, INC., a Delaware
corporation, and/or PURE EARTH RECYCLING (NJ), INC., a Delaware corporation
(hereinafter jointly, severally and collectively referred to as
“Company”).
Capitalized
terms used herein and not otherwise defined, shall have the meaning ascribed
thereto in that certain Commercial Financing Agreement dated the date hereof
among Xxxxxx Capital and the Company (sometimes referred to herein as the
“CFA”). In order to induce you to enter into factoring or other
financial arrangements with Company, including the CFA, the undersigned hereby
warrants, represents, and covenants to you to the best of the undersigned’s
knowledge, as follows:
1. To
my best knowledge that all accounts assigned to you by Company will be genuine
and in all respects what they purport to be; will represent bona-fide sales and
bona-fide and existing obligations of Company’s customers, arising out of the
sale and completed delivery of merchandise manufactured and/or sold and/or the
rendition of services by Company in the ordinary course of its business in
accordance with and in full and complete performance of customer’s orders
therefor; and will not be invalid, incomplete, incorrect, defective, forged, or
fictitious.
2. That
Company will not knowingly assign any accounts to you in which there are
offsets, defenses, or counterclaims of any nature whatsoever, and that Company
will do nothing to impede or interfere with your normal collection of, or the
payments of, the accounts assigned to you.
3. That
the Company is paying its obligations as they come due.
4. That
the Purchased Accounts and merchandise relating thereto will be the
sole and absolute property of Company, free and clear of all liens
or claims of any nature whatsoever, other than any lien (i) in an
amount equal to the greater of 5% of the face amount of the accounts assigned or
$5,000, and (ii) to you and other than any Customer Claims (as hereafter
defined).
5. That
the terms of said accounts will have been set forth thereon and that proper
entries will have been made on Company’s books disclosing the assignment thereof
to you.
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 60
of 67
|
Exhibit
“I”
|
Validity
Guaranty
|
6. That
Company will promptly report to you all merchandise disputes, rejections,
returns, or resales of merchandise, and all credits allowed by Company
individually in excess of $10,000, upon any and all of said accounts
(collectively, “Customer Claims”).
The
undersigned agrees to pay all losses suffered by you as a result of any known
fraud, deceit, or criminal act on the part of the undersigned or of any officer,
employee, or agent of the Company provided such officer, employee or agent of
the Company acted upon the direction of the undersigned or with the knowledge or
acquiescence of the undersigned in its dealings with you, and hereby further
undertakes to save you free and harmless from any such damage or loss which you
may sustain as a result of the above known fraud, deceit, or criminal
act as set forth in this paragraph.
Nothing
herein contained shall be in any way impaired or affected by any change in or
amendment of any of the documents evidencing the factoring or other financial
arrangements. This Agreement shall be binding upon the undersigned,
his or her heirs, agents, representatives, successors, or
assigns. The liability of the undersigned hereunder is direct and
unconditional, and may be enforced without requiring you to first resort to any
other right, remedy, or security. It is not necessary for you to give
the undersigned notice of any changes in any of your factoring or other
financial arrangements with Customer, to all of which the undersigned now hereby
consents.
|
Very
truly yours,
|
||
|
/s/ Xxxx Xxxxxxxxx
|
L.S.
|
|
|
Xxxx
Xxxxxxxxx
(individually)
|
||
|
/s/ Xxxxx Xxxxxxxxxx
|
L.S.
|
|
|
Xxxxx
Xxxxxxxxxx (individually)
|
|
Accepted
by:
|
||
|
XXXXXX
CAPITAL CORPORATION
|
||
|
By:
|
/s/ Xxx Xxxxxxxxxx
|
|
|
Print
Name:
|
Xxx Xxxxxxxxxx
|
|
|
Title:
|
EVP
|
|
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 61
of 67
|
Exhibit
“I”
|
Validity
Guaranty
|
Xxxxxx
Capital Corporation
0000
0xx
Xxxxxx Xxxxx
Xxxxxxxxxx,
XX 00000
Ladies
and Gentlemen:
The
undersigned is an officer, director and/or stockholder of PURE EARTH
MATERIALS, INC., a Pennsylvania corporation, PEI DISPOSAL GROUP, INC., a
Delaware corporation, PURE EARTH TRANSPORTATION & DISPOSAL, INC., a Delaware
corporation, and/or PURE EARTH RECYCLING (NJ), INC., a Delaware corporation
(hereinafter jointly, severally and collectively referred to as
“Company”).
Capitalized
terms used herein and not otherwise defined, shall have the meaning ascribed
thereto in that certain Commercial Financing Agreement dated the date hereof
among Xxxxxx Capital and the Company (sometimes referred to herein as the
“CFA”). In order to induce you to enter into factoring or other
financial arrangements with Company, including the CFA, the undersigned hereby
warrants, represents, and covenants to you to the best of the undersigned’s
knowledge, as follows:
1. To
my best knowledge that all accounts assigned to you by Company will be genuine
and in all respects what they purport to be; will represent bona-fide sales and
bona-fide and existing obligations of Company’s customers, arising out of the
sale and completed delivery of merchandise manufactured and/or sold and/or the
rendition of services by Company in the ordinary course of its business in
accordance with and in full and complete performance of customer’s orders
therefor; and will not be invalid, incomplete, incorrect, defective, forged, or
fictitious.
2. That
Company will not knowingly assign any accounts to you in which there are
offsets, defenses, or counterclaims of any nature whatsoever, and that Company
will do nothing to impede or interfere with your normal collection of, or the
payments of, the accounts assigned to you.
3. That
the Company is paying its obligations as they come due.
4. That
the Purchased Accounts and merchandise relating thereto will be the
sole and absolute property of Company, free and clear of all liens
or claims of any nature whatsoever, other than any lien (i) in an
amount equal to the greater of 5% of the face amount of the accounts assigned or
$5,000, and (ii) to you and other than any Customer Claims (as hereafter
defined).
5. That
the terms of said accounts will have been set forth thereon and that proper
entries will have been made on Company’s books disclosing the assignment thereof
to you.
6. That
Company will promptly report to you all merchandise disputes, rejections,
returns, or resales of merchandise, and all credits allowed by Company
individually in excess of $10,000, upon any and all of said accounts
(collectively, “Customer Claims”).
Exhibit
10.1- Commercial Financing Agreement Dated February 11,
2010
Page 62
of 67
|
Exhibit
“I”
|
Validity
Guaranty
|
The
undersigned agrees to pay all losses suffered by you as a result of any known
fraud, deceit, or criminal act on the part of the undersigned or of any officer,
employee, or agent of the Company provided such officer, employee or agent of
the Company acted upon the direction of the undersigned or with the knowledge or
acquiescence of the undersigned in its dealings with you, and hereby further
undertakes to save you free and harmless from any such damage or loss which you
may sustain as a result of the above known fraud, deceit, or criminal
act as set forth in this paragraph.
Nothing
herein contained shall be in any way impaired or affected by any change in or
amendment of any of the documents evidencing the factoring or other financial
arrangements. This Agreement shall be binding upon the undersigned,
his or her heirs, agents, representatives, successors, or
assigns. The liability of the undersigned hereunder is direct and
unconditional, and may be enforced without requiring you to first resort to any
other right, remedy, or security. It is not necessary for you to give
the undersigned notice of any changes in any of your factoring or other
financial arrangements with Customer, to all of which the undersigned now hereby
consents.
|
Very
truly yours,
|
||
|
/s/ Greg Landis
|
L.S.
|
|
|
Greg
Landis
(individually)
|
|
Accepted
by:
|
||
|
PORTER
CAPITAL CORPORATION
|
||
|
By:
|
/s/ Ron Williamson
|
|
|
Print Name:
|
Ron Williamson
|
|
|
Title:
|
EVP
|
|
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 63
of 67
|
Exhibit
“I”
|
Validity
Guaranty
|
Porter
Capital Corporation
2112
1st
Avenue North
Birmingham,
AL 35203
Ladies
and Gentlemen:
The
undersigned is an officer, director and/or stockholder of PURE EARTH
MATERIALS, INC., a Pennsylvania corporation, PEI DISPOSAL GROUP, INC., a
Delaware corporation, PURE EARTH TRANSPORTATION & DISPOSAL, INC., a Delaware
corporation, and/or PURE EARTH RECYCLING (NJ), INC., a Delaware corporation
(hereinafter jointly, severally and collectively referred to as
“Company”).
Capitalized
terms used herein and not otherwise defined, shall have the meaning ascribed
thereto in that certain Commercial Financing Agreement dated the date hereof
among Porter Capital and the Company (sometimes referred to herein as the
“CFA”). In order to induce you to enter into factoring or other
financial arrangements with Company, including the CFA, the undersigned hereby
warrants, represents, and covenants to you to the best of the undersigned’s
knowledge, as follows:
1. To
my best knowledge that all accounts assigned to you by Company will be genuine
and in all respects what they purport to be; will represent bona-fide sales and
bona-fide and existing obligations of Company’s customers, arising out of the
sale and completed delivery of merchandise manufactured and/or sold and/or the
rendition of services by Company in the ordinary course of its business in
accordance with and in full and complete performance of customer’s orders
therefor; and will not be invalid, incomplete, incorrect, defective, forged, or
fictitious.
2. That
Company will not knowingly assign any accounts to you in which there are
offsets, defenses, or counterclaims of any nature whatsoever, and that Company
will do nothing to impede or interfere with your normal collection of, or the
payments of, the accounts assigned to you.
3. That
the Company is paying its obligations as they come due.
4. That
the Purchased Accounts and merchandise relating thereto will be the
sole and absolute property of Company, free and clear of all liens
or claims of any nature whatsoever, other than any lien (i) in an
amount equal to the greater of 5% of the face amount of the accounts assigned or
$5,000, and (ii) to you and other than any Customer Claims (as hereafter
defined).
5. That
the terms of said accounts will have been set forth thereon and that proper
entries will have been made on Company’s books disclosing the assignment thereof
to you.
6. That
Company will promptly report to you all merchandise disputes, rejections,
returns, or resales of merchandise, and all credits allowed by Company
individually in excess of $10,000, upon any and all of said accounts
(collectively, “Customer Claims”).
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 64
of 67
|
Exhibit
“I”
|
Validity
Guaranty
|
The
undersigned agrees to pay all losses suffered by you as a result of any known
fraud, deceit, or criminal act on the part of the undersigned or of any officer,
employee, or agent of the Company provided such officer, employee or agent of
the Company acted upon the direction of the undersigned or with the knowledge or
acquiescence of the undersigned in its dealings with you, and hereby further
undertakes to save you free and harmless from any such damage or loss which you
may sustain as a result of the above known fraud, deceit, or criminal
act as set forth in this paragraph.
Nothing
herein contained shall be in any way impaired or affected by any change in or
amendment of any of the documents evidencing the factoring or other financial
arrangements. This Agreement shall be binding upon the undersigned,
his or her heirs, agents, representatives, successors, or
assigns. The liability of the undersigned hereunder is direct and
unconditional, and may be enforced without requiring you to first resort to any
other right, remedy, or security. It is not necessary for you to give
the undersigned notice of any changes in any of your factoring or other
financial arrangements with Customer, to all of which the undersigned now hereby
consents.
|
Very
truly yours,
|
||
|
/s/ Joseph Kotrosits
|
L.S.
|
|
|
Joseph
Kotrosits
(individually)
|
|
Accepted
by:
|
||
|
PORTER
CAPITAL CORPORATION
|
||
|
By:
|
/s/ Ron Williamson
|
|
|
Print
Name:
|
Ron Williamson
|
|
|
Title:
|
EVP
|
|
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 65
of 67
|
Exhibit
“J”
|
Landlord’s
Waiver and Consent
|
LANDLORD'S
WAIVER AND CONSENT
The
undersigned, the Landlord of the premises described below to induce PORTER
CAPITAL CORPORATION (hereinafter referred to as "Porter Capital") to make loans
or advances to PURE EARTH MATERIALS, INC., a Pennsylvania corporation, PEI
DISPOSAL GROUP, INC., a Delaware corporation, PURE EARTH TRANSPORTATION &
DISPOSAL, INC., a Delaware corporation, and/or PURE EARTH RECYCLING (NJ), INC.,
a Delaware corporation (hereinafter jointly, severally and collectively,
referred to as "Debtor") secured by a security interest in the inventory, now or
hereafter owned by Debtor or an affiliate or subsidiary of Debtor (hereinafter
referred to as "Personal Property"), located on the above mentioned premises,
hereby waives and relinquished unto Porter Capital and its assigns, all right to
claim that any Personal Property will at any time become fixtures, and all
rights, claims and demands of every kind against the said Personal Property, and
all replacements and additions thereto. This waiver to continue in
full force and effect until Debtor has paid the full amount owed or hereafter
owing to Porter Capital. The undersigned further agrees that the said
Personal Property will remain personal property at all times notwithstanding the
installation thereof in or at the premises aforesaid in any
manner. The undersigned hereby grants Porter Capital the right to
enter the premises for the purposes of repossessing, removing, selling or
otherwise dealing with the Personal Property. In the event that
Porter Capital shall enter the premises and repossess, remove, or sell the
Personal Property, of the Debtor, Porter Capital shall have the right to
maintain such properties on the rented premises by paying the current rent which
shall become due during the period of time that Porter Capital shall occupy the
premises, provided however, that in no event shall Bank remain on the premises
beyond the term of the lease. This waiver may not be changed or
terminated orally, shall be binding upon the successors and assigns of the
undersigned and shall also be binding upon any successor, owner or transferee of
said real property.
Dated
this 11th day
of February, 2010.
LANDLORD:
|
Redrock Land
|
||
|
By:
|
/s/ Michael Nasent
|
|
|
Print Name:
|
Michael Nasent
|
|
|
Title:
|
CFO
|
|
|
Description
of Leased Premises:
|
1000 Page Avenue
|
|
Lyndhurst, NJ 07071
|
|
|
/s/ Devon Murphy
|
|
|
WITNESS
|
|
|
/s/ Nipam Shah
|
|
|
WITNESS
|
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 66
of 67
February
11, 2010
Porter
Capital Corporation
2112
First Avenue North
Birmingham,
AL 35203
To Whom
It May Concern:
We hereby
agree to furnish to Porter Capital Corporation the following reports no later
that the 10th of each
month.
Accounts Receivable Aging
Accounts Payable Aging
We agree
to provide the following reports quarterly
Proof of 941 Taxes accompanied by proof
of payment
Should
Porter require any additional information, please let us know.
Sincerely,
PURE EARTH MATERIALS, INC., a
Pennsylvania corporation
|
BY:
|
/s/ Brent Kopenhaver
|
|
|
Print
Name:
|
Brent Kopenhaver
|
|
|
Title:
|
Treasurer
|
PEI DISPOSAL GROUP, INC., a
Delaware corporation
|
BY:
|
/s/ Brent Kopenhaver
|
|
|
Print
Name:
|
Brent Kopenhaver
|
|
|
Title:
|
Treasurer
|
PURE EARTH TRANSPORTATION &
DISPOSAL, INC., a Delaware corporation
|
BY:
|
/s/ Brent Kopenhaver
|
|
|
Print
Name:
|
Brent Kopenhaver
|
|
|
Title:
|
Treasurer
|
|
PURE EARTH RECYCLING (NJ),
INC., a Delaware corporation
|
BY:
|
/s/ Brent Kopenhaver
|
|
|
Print
Name:
|
Brent Kopenhaver
|
|
|
Title:
|
Treasurer
|
Exhibit
10.1- Commercial Financing Agreement Dated February 11, 2010
Page 67
of 67
