EXHIBIT 10.2
ACCOUNTS RECEIVABLE PURCHASE, INVENTORY, PURCHASE ORDER AND
GENERAL SECURITY AGREEMENT
THIS AGREEMENT, is entered into and delivered this 5th_day of June, 2008
in Chicago, Illinois in the County of Xxxx by and between BLN CAPITAL FUNDING,
LLC, an Illinois LLC Located at 000 Xxxx Xxxxxxxxxx, Xxxxx 0000 Xxxxxxx,
Xxxxxxxx, 00000 (hereinafter referred to as "BLN"), and MONARCH PETROLEUM, INC.
A Michigan Corporation located at 000 Xxxxx Xxxxxx Xxxxxx Xxxxxxx, Xxxxxxxx
00000 and VOYAGER PETROLEUM, INC a Nevada Corporation organized and existing
under the laws of the State of Nevada presently located at 000 Xxxx Xxxxx
Xxxxxx-Xxxxx 000X, Xxxxxxxx, XX 00000 (hereinafter collectively referred to as
"Client" or "VPI").
RECITALS
WHEREAS, Client wishes to sell and assign its Receivables, as defined
herein, to BLN making BLN its sole accounts receivable purchaser and the sole
owner of such Receivables, furthermore Client desires to borrow other
funds/monies from time to time on its inventory, purchase orders, real estate
and/or other assets; and
WHEREAS, BLN desires to purchase certain Receivables from Client pursuant
to the terms of this Agreement and fund/make other loans/advances from time to
time secured by the inventory other assets of Client: and
NOW THEREFORE, in consideration of the mutual promises and covenants set
out below, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 "Advance Rate" shall be a cash sum equivalent to the percentage of
the total amount of each Receivable purchased by BLN hereunder as set forth in
Section 2 of this agreement, as amended from time to time.
1.2 "Agreement" shall mean this Agreement.
1.3 "Blocked Account" shall mean that account created in accordance with
Section 2.12 hereof.
1.4 "Collateral" shall mean all of the items or references to property,
whether real, personal or intangible described in Sections 3.1 hereof.
1.5 "Customer" shall mean the person or entity indebted to Client due to
the sale of goods or rendition of services for such Customer by Client.
1.6 "Customer Finance Charges" shall mean any finance charges paid to
BLN by a Customer with respect to any Receivable, if applicable.
1.7 "Default" shall mean (i) default in the payment, when due and
payable, of any of Client's Obligations; (ii) if any of Client's representations
or warranties are false or misleading in any material respect; (iii) if Client
fails to perform any obligations, terms, provisions, or covenants contained in
this Agreement; (iv) the discontinuance or suspension of Client's present
business operation, or if Client or any of the Guarantors becomes insolvent or
unable to meet its debts as they mature, or if any proceeding is commenced
against Client or any of the Guarantors for relief under any provision of any
federal or state bankruptcy, insolvency or other similar law, the issuance or
filing of any injunction, attachment, judgment or lien against Client or any
Guarantor, or any of Client's or any Guarantor's property, or the appointment of
a receiver, custodian or trustee of any kind for Client or any of Client's
property; (v) if a default occurs under any guaranty agreement executed by any
of the Guarantors in conjunction with this Agreement and is not cured within any
applicable grace period; (vi) any Guarantor (being a natural person or a general
partner of an guarantor which is a partnership) dies or Client or any Guarantor,
which is a partnership, limited liability company, limited liability partnership
or a corporation, dissolves or suspends or discontinues doing business; (vii)
any default by Client or any Guarantor under any agreement, document or
instrument relating to any indebtedness for borrowed money owing to any person
other than BLN, or any capitalized lease obligations, contingent indebtedness in
connection with any guarantee, letter of credit, indemnity or similar type of
instrument in favor of any person other than BLN; (viii) the indictment or
threatened indictment of Client or any Guarantor under any criminal statute, or
commencement or threatened commencement of criminal or civil proceedings against
Client or any Guarantor, pursuant to which statute or proceedings the penalties
or remedies sought or available include forfeiture of any of the property of
Client or such Guarantor; or (ix) there shall be a material adverse change in
the business, assets or prospects of Client or any Guarantor after the date
hereof.
1.8 "Discount" shall mean the amount of the discount of each respective
Receivable due BLN pursuant to the terms of this Agreement and specifically
defined in Section 2, as amended from time to time, attached hereto.
1.9 "Dispute" shall mean any dispute, deduction, claim, offset, defense
or counterclaim of any kind relating to Receivables, including, without
limitation, any dispute relating to goods or services already paid for or
relating to Receivables other than the Receivable on which payment is being
withheld.
1.10 "Eligible Receivables" means Receivables identified by BLN for
purchase from approved debtors, as determined by BLN in its sole discretion.
1.11 "Face Amount" shall mean the cash price for the goods Client sold
and/or services Client rendered to a Customer, less any down payment paid by a
Customer, plus any taxes imposes on such sales transactions.
1.12 "Guarantors" shall mean all persons executing a guarantee agreement
pertaining to Client's Obligations.
1.13 "Net Amount" shall mean the Face Amount of receivables, less BLN's
Discount as provided in Section 2.
1.14 "Obligations" shall mean, without limitation, the aggregate amount
of the Receivables purchased by BLN hereunder; charges or chargeback's arising
from Disputes or otherwise; costs and expenses, including reasonable attorneys'
fees, including enforcing, protecting or administering of BLN's rights into this
Agreement; or in the prosecution or defense or any acts relating to this
Agreement or any Receivables; amounts recovered from BLN on account of payments
previously made by Customers on Receivables purchased by BLN; and any taxes or
penalties or other charges which BLN may be required to pay in connection with
this Agreement or any transaction carried out in connection herewith.
1.15 '"Payment Date" shall mean the date of the deposit of the Customer
payment on a receivable to the Blocked Account plus two (2) business days
following the receipt of immediately available funds in the Blocked Account
provided such payments or other funds and notice thereof are received in
accordance with BLN's usual and customary practices as in effect from time to
time and within sufficient time to credit Client's operating account on such
day, and if not, then on the next business day.
1.16 "Person" or "person" shall mean any individual, sole proprietorship,
partnership, corporation (including any corporation which elects subchapter S
status under the Internal Revenue Code of 1986, as amended), limited liability
company, limited liability partnership, business trust, unincorporated
association, joint stock corporation, trust, joint venture or other entity or
any government or any agency or instrumentality or political subdivision
thereof.
1.17 "Prime Rate" shall mean the "prime rate" from time to time published
in the "Money Rates" column of THE WALL STREET JOURNAL; provided, however, if
the "Money Rates" column of THE WALL STREET JOURNAL ceases to be published or
otherwise does not designate a "prime rate" as of any business day, BLN shall
have the right to obtain such information from a similar business publication of
its selection or Fifth Third Bank.
1.18 "Purchase Price" shall be defined as the sum of the Advance Rate and
the Reserve amount as described herein.
1.19 "Purchased Accounts" shall mean all Receivables assigned to BLN by
Client pursuant to this Agreement.
1.20 "Receivable" or "Receivables" shall mean collectively or severally
all accounts, contract rights, notes, bills and other forms of obligation
arising in the ordinary course of business conducted by Client from the sale of
goods or rendition of services.
1.21 "Related Person" shall mean any Person (a) which now or hereafter
directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, Client, or (b) which now or
hereafter beneficially owns or holds five percent (5%) or more of the capital
stock of Client, (c) five percent (5%) or more of the capital stock of which is
beneficially owned or held by Client or is a family member of the Client. For
the purposes hereof, "control" shall mean possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting stock, by contract or otherwise.
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1.22 "Reserve" shall mean the amount equivalent to the amount of each
Receivable purchased from Client by BLN less the sum of the Advance Rate and the
Discount due BLN plus any Customer Finance Charges.
1.23 "Schedule of Accounts" shall mean the list of Receivables purchased
from Client by BLN as amended from time to time.
1.24 "UCC" shall mean the Uniform Commercial Code in effect in the state
of Illinois on the date this Agreement is entered into by and between the
parties hereto.
1.25 "Client" shall mean either Monarch Petroleum, Inc. Voyager
Petroleum, Inc or Sovereign Oil, Inc what ever the respect name/case maybe.
ARTICLE 2
PURCHASE AND SALE OF ACCOUNTS, COMMISIONS, FEES, INTEREST, INVENTORY AND
BILLING AND LOAN STATEMENTS
2.1 Client agrees to use and hereby appoints BLN as its sole accounts
receivables purchaser. Client hereby conveys, transfers, assigns and sells to
BLN as absolute owner thereof all right, title and interest of its present and
future Receivables. Client acknowledges and agrees that the decision to advance
against any Receivable that is assigned to BLN shall be at BLN's sole and
absolute discretion, and if BLN decides not to advance against a Receivable,
this decision shall be expressly communicated to Client by BLN. Client further
grants, conveys, transfers, sells and assigns to BLN all of its interest in the
goods or services sold by Client which gave rise to the Receivables, in all
goods that may be returned by Customers; all Client's rights as an unpaid vendor
or lienor; documents (including, without limitation) all Client's bills of
lading; all Client's proof of delivery; all Client's contracts and contract
rights (including, without limitation, all Client's rights in purchase orders in
the assets sold and assigned); all Client's rights of stoppage in transit,
replevin and reclamation relating thereto; all Client's rights in and the
guarantees thereof, and all Client's rights against related third parties
thereto. Any goods so recovered or returned shall be set aside, and held in
trust for BLN and such property shall be deemed the sole property of BLN. Client
shall notify BLN promptly of all such returned or recovered goods.
2.2 BLN hereby purchases from Client, with full recourse all present and
future Eligible Receivables and Client agrees to assign and sell, and hereby
assigns and sells to BLN, as absolute owner, with recourse as provided herein,
Client's entire interest in such of Client's presently outstanding Eligible
Receivables as well as all of Client's future Receivables. All such Eligible
Receivables are to be reflected on the invoices pertaining to the Eligible
Receivables that Client delivers to BLN. Client warrants that with respect to
any invoice reflecting an Eligible Receivable that is presented to BLN for
purchase, the Customer has received and accepted the goods and/or services which
gave rise to such Eligible Receivable and there is no Dispute, mistake, error or
fraud involving such Eligible Receivable, the Eligible Receivable is not subject
to any security interest, lien or encumbrance whatsoever other than BLN's
security interest, the Customer is not an affiliate, associate or subsidiary of
Client, and the goods delivered or services rendered conform in all respects
with the order placed by the Customer.
2.3 Client hereby assign and sell to BLN as absolute owner, with
recourse, our entire interest in all of the present and future Receivables.
Client represent and warrant to BLN that at the time each Receivable is advanced
against under this Agreement that (i) Client shall be the sole and absolute
owner of such Receivable, free and clear of all liens, claims and encumbrances
whatsoever, and (ii) BLN shall acquire by virtue of this Agreement, sole and
absolute title and ownership of each such Receivable, free and clear of all
liens, claims and encumbrances whatsoever. Client acknowledge and agree that the
decision to advance against any Receivable shall be made by BLN in your sole and
absolute discretion. All orders for Sales may be submitted to BLN for credit
approval prior to shipment of the goods or rendition of the services so ordered,
and each approved Sale shall be made only in accordance with such approval. All
credit approvals must be in writing. Receivables arising from orders approved or
unapproved by BLN, in whole or in part, shall be sold to BLN with full recourse
to us.
2.4 Client will provide BLN with listings of Receivables in form
satisfactory to BLN, together with Customers' invoices, shipping documents, and
such other documents and proof of delivery/rendition as BLN may at any time
require. Billing on invoices by whomever done shall be conclusive evidence of
assignment and sale hereunder of such Receivables whether or not Client execute
any other instrument/document showing specific or general assignment with regard
thereto. Client hereby agree and undertake that Client will ensure that all
invoices to Customers shall bear the following notation plainly on the face
thereof: "This invoice has been sold and assigned to BLN CAPITAL FUNDING LLC,
000 XXXX XXXXXXXXXX XXXXX 0000 XXXXXXX, XX 00000. Payment to ourselves or any
other person or entity cannot and will not constitute a valid discharge of this
debt, as only BLN CAPITAL FUNDING, LLC is entitled to receive payment hereof and
give a receipt therefore". All remittances obtained by Client against
Receivables will he received in trust for BLN. Client agree and undertake not to
bank any such remittances, but to turn over to BLN the identical remittances in
kind as promptly as possible; provided, however, that nothing herein authorizes
Client to collect Receivables.
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2.5 Each invoice evidencing a Receivable shall state in a manner
satisfactory to BLN that the Receivable has been assigned and conveyed to BLN
and is payable in United States dollars to BLN only, which may be done by BLN at
its option. Client shall also provide BLN with documents relating to such
receivables including all bills of lading, proof of delivery, contracts and
purchase orders.
2.6 If any remittance or payment for a Receivable is made directly to
Client by or on behalf of a Customer, Client shall hold such amounts in
trust/escrow for BLN and such amounts shall be deemed the sole property of BLN.
Upon receipt of any such remittance or payment, Client shall immediately deliver
to BLN at the lockbox referred to in Section 2.12 or to forward to BLN directly
at the address on page 1 of this agreement, the identical checks, monies or
other forms of payment received and BLN shall have the right to endorse Client's
name on all such remittances.
2.7 The purchase price of Receivables is to be the Net Amount thereof,
which, less any charges and reserves, will be due and payable on the Payment
Date. Client shall pay BLN a servicing fee in an amount equal to 2.75% (TWO
POINT SEVEN-FIVE PERCENT) of the gross amount of such/each invoice for the first
THIRTY (30) day term or part thereof, plus (.75%) of such gross amount for each
additional THIRTY (30) day term or part thereof; provided, however, that the
minimum servicing fee for any given Invoice shall be $25.00 provided, further,
however, that the minimum servicing fee commissions paid by Client for each
Month (1) months of the Initial Period or Renewal Period (as such terms are
hereinafter defined), as applicable, shall be the greater of (i) $2,000 per
month or (ii) an amount equal to 2.75% of BLN's gross monthly purchases of
invoices for the preceding fiscal month from VPI, or (iii) an amount equal to
2.75% of BLN's average gross monthly purchases of invoices for the preceding
twelve months. If the Initial Period or any applicable Renewal Period is not
completed for any reason, the gross monthly or quarterly purchases of invoices
for such uncompleted period shall be based upon the gross monthly or quarterly
purchases of invoices for the prior period completed. The aggregate servicing
fee payable by Client in each quarterly period as described above shall be due
and payable regardless of the gross value of the Receivables actually sold by
Client under this Agreement during such period. BLN may retain from sums payable
to Client a reserve, which reserve may be revised from time to time at your
discretion, in order to provide for Customer Disputes, possible credit losses on
Receivables, sums owing to BLN for goods/services purchased by Client from any
other firm factored or otherwise financed by BLN, and the Obligations. A
discount, credit, or allowance may not be claimed by us, buy may be claimed
solely by the Customer; no third party beneficiary rights are created hereby.
Not withstanding any thing contained herein to the contraire. In addition to the
foregoing client shall pay BLN interest of Prime Plus Two Point Seven Five
Percent (P+2.75%) on a monthly basis on the average daily net funds employed
under the Accounts Receivable Purchase Line for any given month. Such Interest
shall be paid the first of each month to BLN and shall be based on the average
daily net funds employed by Client, such Interest charge shall be added to
client's ledger the first of each month, thereby, increasing the total of net
funds employed by a like amount. Lastly, Client shall be subject to an early
termination fee with respect to the accounts portion, in the event they payoff
BLN prior to the twenty four month period as called for in this agreement,
2.8 Such fee as outlined above shall be based upon the number of months
remaining in this agreement times the average monthly fees generated in the
prior period and/or month as outlined above.
2.9 BLN may, at its sole discretion, advance against any of the
Receivables, Finished Goods Inventory and Raw Materials Inventory and Purchase
Orders it deems acceptable/eligible from time to time, as amended from time to
time, as presented to BLN by Client within the limits of credit facility
established by BLN with Client. The Advance rate against eligible accounts shall
be up to 85 % of such accounts, the advance rate against eligible inventories
shall be up to 50% of such inventories and the advance rate against eligible
Purchase Order's shall be up to 80% of such Purchase Order. Loans/Advances and
Purchases under this section shall be limited to the total/aggregate amounts as
specified in either section 6.1 of this agreement and/or this section 2.9 with
respect to the accounts portion.
2.10 Within a reasonable period of time after delivery of the Receivables
and receipt of those Receivables by BLN pursuant to the provisions hereof and
during the business day, but no later than five business days after receipt, BLN
shall remit the Advance Rate of the Receivables on which BLN has agreed to
advance and shall remit to Client the Advance Rate regarding the subject
Receivables. The Reserve amount with respect to a Receivable shall also be
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remitted to Client after the full payment of the Receivable is received by BLN,
less other Obligations, fees or other amounts due BLN hereunder, with the
remittances to be made monthly relating to full payments received in the prior
month. All amounts transferred to Client pursuant to this Agreement hereunder
shall be disposed of in accordance with the instructions of Client. Prior to the
Payment Date, upon Client's request and at BLN's sole discretion, BLN may
advance to Client the Advance Rate of each Receivables on which BLN has agreed
to make an advance and Client agrees to pay on demand and advances or charges at
any time outstanding on Client's account, but the aggregate amount of such
advances shall not exceed the sum of $1,000,000 LESS THE AMOUNTS OUTLINED IN
SECTION 6.1 OF THIS AGREEMENT.
2.11 If any Receivable is the subject of a Dispute as defined herein, or
if the Receivable remains unpaid for a period of more than ninety (90) days
after the date of the invoice to the Customer, or if there exists any breach of
Clients representations, warranties or promises hereunder with respect to any
Receivable, Client hereby agrees, upon demand by BLN at BLN's sole option,
either to repurchase from BLN such Receivable (or the unpaid portion thereof)
for the amount of the applicable Purchase Price of such Receivable or the
aggregate amount of such Purchase Price of any Receivables affected by such
Dispute, together with all unpaid fees and other Obligations hereunder.
Furthermore, if there is a Default under the terms of this Agreement or if there
is a default under any other agreement or Obligation Client has with BLN, or if
this Agreement is terminated, BLN may reassign and charge back to Client all or
any portion of outstanding Receivables purchased by BLN pursuant to this
Agreement. To reassign Receivables, BLN may charge first against Client's
Reserve, then against Blocked Account (hereinafter defined), then against any
other accounts with FIFTH THIRD ANK an amount equal to the unpaid balance of the
reassigned Receivables, including accrued and unpaid finance charges on the date
of reassignment. The reassignment shall be effective automatically upon the
chargeback to Client. In the event that the Reserve, Blocked Account, or any
other FIFTH THIRD BANK account, which BLN may charge is insufficient to satisfy
the balance of the reassigned Receivables, Client agrees, upon demand to pay the
deficiency amount due to BLN and any amounts unpaid shall bear interest at the
Default rate until paid. Until the respective Reserve amount for each Receivable
is due Client as described hereunder, the Reserve amount retained by BLN
pursuant to the terms of this Agreement shall be the sole exclusive property of
BLN and may be held and commingled with other funds of BLN.
2.12 Interest, if applicable, shall be charged for the number of days
that advances of the Purchase Price are made prior to Payment Date and for the
number of days that advances or other charges to Client's account remain
outstanding. Subject to Section 2.7 of this agreement interest prior to Default
shall be at the variable rate (the "Interest Rate") and interest upon the
occurrence of a Default shall be at the variable rate (the "Default Rate") as
set forth on in this agreement. Interest shall be computed on the basis of a
year of three hundred sixty (360) days, for the actual days elapsed. Changes in
interest rate shall be effected to reflect changed in the Prime Rate, with
changes to such interest rate to take effect as and when such changes in the
Prime Rate occur. For the purpose of interest calculation, discounts earned
during each month shall be deemed charged to Client's account as they occur.
Interest shall be paid monthly on the first day of each month and BLN is
entitled to charge any interest due from Client against the Reserve Account, the
Blocked Account, or against any account maintained by Client at FIFTH THIRD BANK
which BLN may charge.
2.13 Blocked Account/Lockbox. Client shall establish and maintain, at its
expense, lockboxes and related blocked accounts (in either case, "Blocked
Accounts"), as BLN may specify, with such banks which are acceptable to BLN in
which Client shall promptly deposit, and shall direct all of its Customers to
directly remit, all Receivables as well as all cash payments received by Client,
including, without limitation, all payments in respect of Receivables, and all
other Collateral, all tax, duty and other cash refunds, and all other cash
payments, in each case, in the identical form in which such payments are made,
whether by cash, check or other manner. The banks at which the Blocked Accounts
are established shall enter into an agreement, in form and substance
satisfactory to BLN. Client agrees to provide notices to each Customer of the
assignment of the Receivable and payment to the Blocked Account, as called for
in this agreement. (the "Blocked Account Notice"), upon signing this Agreement,
and, if required by BLN, with respect to any new Customer. Client will not,
without BLN's consent, direct Customers to make payment of invoices to any
address other than the address set forth in the Blocked Account Notice.
2.14 Servicing Fees and/or commissions charged with respect to advances
against Purchase Orders and the related inventory purchased where BLN shall be
deemed to have a Purchase Money Security Interest in such purchases or direct
advances to suppliers where BLN have advanced monies to said suppliers from time
to time, as the case may be (herein sometimes referred to as the "Purchase Order
Line"), shall be as follows: a servicing discount equal to 3.95% of the funds
advanced and/or outstanding for the initial 30 day period from the initial date
of the advance as evidenced either by wire transfer or check plus Client shall
pay an additional servicing fee on advances that remain outstanding after the
initial 30 day period of 1% for each 15 days or part thereof until any such
advance is paid off in full plus an interest charge of prime +.50% on the
average daily funds employed and/or advanced and outstanding. BLN shall have the
sole right so long as advances remain open and outstanding under the Purchase
Order Line to advance and/or apply funds as necessary and to record same on
its/Client's ledger sheets and/BLN books. In any event all application of funds
shall first apply to any accrued fees or interest due, next to any expenses that
may relate to these specific advances/line and lastly to the principal and/or
monies advanced under this line for products and or services on behalf of
Client.
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2.15 Interest, with respect specifically, to loans against inventory,
under this agreement with Client shall be based and bear interest at the rate of
Prime Plus One percent (P+1%) annually based on the average daily funds employed
which shall be computed and billed monthly by BLN and an additional monthly
servicing fee equal to and based upon (.75%) of the average daily funds employed
for any given month shall also be charged under the inventory loan/line. The
interest and fees under this section shall be calculated, billed and added to
the client's inventory billing statement and/or loan ledger the first of the
following month and shall be due and payable by the 15th of the month billed.
2.16 Interest, with respect to monies/funds specifically advanced against
inventory, equipment or any other assets, other than accounts purchased by BLN
not covered/outlined in section 2.7 or 2.14 above with respect to Interest,
shall be the lesser of One Point Six-Six Percent monthly (1.66%) monthly or the
rate as so called for in any separate or specific note by Client/borrower to BLN
on any borrowed monies and/or outstanding funds as evidenced by separate
advances and/or loan ledger/s. on BLN's records/books.
2.17 Over Advance Loans. In the event that there is an over advance
(amounts that are due BLN in excess of amounts currently held by BLN in the
Reserve), BLN, at its option, may waive this as a Default and may consider the
over advance to be a demand loan (the "Over advance Loan") payable at the
Default Rate; provided, however, that during the period that the Over advance
Loan remains unpaid, all outstanding advances for the Purchase Price of the
Clients Accounts shall bear interest at the Default Rate rather than the
Interest Rate. Any Over advance Loan, if requested, will only be made at the
sole discretion of BLN.
2.17 BLN shall generate a statement of account/s monthly on
advances/loans and such statement/s shall be binding upon client absent a
manifest error with respect to amounts due BLN for loans or advances made by BLN
to Client. These statements shall be binding evidence as to amount of our
outstanding loans or advance/s by BLN to client by ledgering advances made by
BLN, collection of accounts, payments and certain fees generated from time to
time or as they occur. These ledgers shall be deemed a true and accurate
accounting of monies due by client to BLN, unless Client notify BLN in writing
within 30 days of receipt of statement or no later than 45 days from the last
entry date on any given monthly statement. Furthermore, BLN and Client
collectively agree that no note or notes are needed by BLN to evidence client's
indebtedness to BLN. That the accounting with respect to advances, principal
balances, interest, fees and other charges on the ledgers created and generated
by BLN and/or paid by client monthly shall be deemed true and accurate unless
Client notify BLN in writing within 45 days after any given month. Lastly, any
interest or loan statement that is paid by client as submitted by BLN shall be
deemed true and accurate, and shall only be subject to future adjustment by BLN
at its sole discretion, subject to any material mistake/error by BLN respect to
the statements computation. Client shall pay BLN the first day of each month or
upon demand for any and all fees, interest or other charges generated/created
during the month on our account/s outstanding with BLN whether it be from loans
or advances secured and against receivables, inventory, equipment or purchase
orders unless stated other wise in this agreement in specific numbered sections.
2.18 BLN shall have the right to verify/contact directly (either written
form , by telephone, in person or by email) any and/or all account debtors and
all accounts, irrespective if BLN made an advance against said account/s., said
verification shall allow BLN to check validity, accuracy and correctness of
billing/invoicing and to see if account debtor has received actual invoice and
has in placed same into their respective accounting/payable system/s.
Furthermore, In the event of a dispute or problem Client will notify BLN
promptly of such dispute and will handle/settle all Customer Disputes on a
timely basis, but BLN shall have the right at all times to do so directly and to
compromise, adjust, verify or litigate all such Customer Disputes for any and
all invoices that remain unpaid 30 days past the due date or for any invoice
that is disputed (via verification by BLN) of/by the client's individual account
debtor . If a Customer Dispute exists or is asserted with regard to any
Receivable, or if Client shall breach any representation, warranty or covenant
with respect to any Receivable, BLN may charge back to our account the gross
amount of such Receivable, as well as all other Receivables owing by the same
Customer. BLN may charge back to our account at any time any Receivable, whether
before or after its due date. A chargeback shall not be deemed a reassignment or
sale of the Receivable, and title thereto and to the goods represented thereby
shall remain vested in BLN until BLN execute a reassignment. All returned,
replevied, and reclaimed goods coming into our possession shall be held in trust
by Client for BLN
2.19 BLN has proposed/agreed to lend up to 50% (Fifty Percent) against
acceptable finished goods of Client from time to time, as determined by BLN and
subject to the Client keeping good, current, true and accurate records of
Client's inventory with respect to type, costs, quality, quantity and location
of such goods/inventories. Client at all times will make available to BLN any
and all of its books and records with respect to the price, costing and
accounting of its inventory during normal business hours and days. BLN shall
have the further right and Client shall provide all reasonable help when/where
needed and requested by BLN to locate, visit, inspect, identify, cost and count
such inventory where ever located. Client shall keep track of all costs, price,
withdrawals and additions of inventory on a daily and perpetual basis and make
such record keeping available to BLN during all normal business hours days.
Client further agrees to insure the inventory for not less than the amount of
BLN loan/line of $250,000. Client will notify BLN promptly of any negative
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material damages, changes or shortages that may occur from time to time with
respect to the inventory or any material change affecting its salability. Client
agrees it will only sell inventory in its normal course of business to its
normal/established client/customer base. Client will not allow any party other
than BLN to place a lien on Client's inventory or suffer a judgment against
same. BLN shall generate and provide Client with a separate monthly statement
listing/recording all loans/advances, payments, interest, fees, and expenses it
made/makes to Client with respect to Client's inventory and Client shall pay
same by the 15th of the month that said statement was generated by BLN.
ARTICLE 3
GRANT OF SECURITY INTEREST, CROSS COLLATERAL-CROSS DEFAULT AND
SPECIAL PROVISIONS
3.1 In order to secure the prompt payment and performance of Client's
Obligations hereunder, Client hereby, upon the terms hereof and for value
received, grants to BLN a security interest in and a right of setoff with
respect to the following assets of Client: all accounts, accounts receivable,
chattel paper (whether tangible or electronic), contracts and contract rights
(including, without limitation, all Customer's rights in purchase orders in the
assets sold and assigned), documents (including, without limitation, all
Customer's bills of lading and proof of delivery), instruments (including
without limitation, promissory notes), inventory, equipment, investment
property, real property, letter of credit rights, letters of credit, and all
general intangibles (including without limitation, payment intangibles and
software), all Reserves in which Client has any interest or which are to become
due and payable to Client, and all books and records of Client (whether tangible
or electronic) relating to the assets set forth herein, whenever acquired and
whether now or hereafter existing, wherever located (all of which are
hereinafter collectively called "Collateral") and all proceeds of Collateral.
All terms not defined in this subsection shall have the meaning set forth in
Revised Article 9 of the Uniform Commercial Code as adopted in the State of
Illinois.
3.2 All of the foregoing Collateral shall secure the payment of all
Obligations at any time owing to BLN, fixed or contingent whether arising under
this Agreement or by operation of law or otherwise. BLN is expressly authorized
at any time to charge to Client (and against any credit balance on BLN's books
in Client's favor, whether matured or unmatured) the amount of any or all of the
Obligations. Client shall pay to BLN on demand any debit balance at any time
existing in Client's Blocked Accounts. Client shall execute and deliver to BLN
such other documents and instruments, including, without limitation, UCC
financing statements or amendments, as BLN may request from time to time. In
addition, Client hereby authorizes BLN to file financing statements under the
UCC, with respect to the above Collateral. Client agrees that it will not lend
any sum of money whatsoever to any individual or entity, nor act as guarantor,
surety or endorser without BLN's prior written consent.
3.3 Client agrees that, with respect to the security interest granted by
this Agreement, BLN shall have all of the rights and remedies of a secured party
as provided by the UCC in addition to any and all remedies provided by any other
applicable law and all rights and remedies provided for by this Agreement and by
any other agreement it being understood that the security interest hereby
secures any and all present and future Obligations of Client to BLN. With
respect to all of the Collateral in which a security interest is granted under
the terms of this Agreement, Client agrees:
A. to keep it free from all taxes, liens and encumbrances. Client
agrees to notify BLN in writing immediately upon any notice of lien,
seizure of, levy upon or attachment of the Collateral and Client hereby
indemnifies BLN against any of the same; and
B. to keep all tangible Collateral in good order and working
condition to maintain and operate it in strict compliance with all laws,
ordinances and regulations pertaining thereto, and Client hereby
indemnifies, holds harmless and insures BLN against any loss, damage or
destruction of the Collateral regardless of the cause of such damage, loss
or destruction. No damage, destruction or loss of the Collateral shall
release Client from any obligation to BLN, and in the event of the loss,
destruction or substantial damage to the Collateral which puts the
Collateral in non-operating or unusable or un-salable condition (except
for minor repairs which Client shall at once proceed to make, including
the replacement of minor parts), all of the Obligations due from Client to
BLN shall at once become due and payable as if originally agreed to be
paid immediately. Client agrees to notify BLN in writing immediately upon
the occurrence of any such damage, loss or destruction without regard to
the cause of such damage, loss or destruction; and
C. to insure all tangible Collateral for an amount at least equal
to its replacement cost value against loss by fire, theft or other
casualty with a reasonable insurance company acceptable to BLN with
proceeds of such policy or policies payable to BLN and/or Client as their
interest may appear; and
D. not to sell, pledge, hypothecate or assign any of Client's
interest in any of the Receivables or other Collateral without the prior
written consent of BLN.
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3.4 In order to facilitate the terms of this Agreement, Client hereby
authorizes and appoints BLN as its lawful attorney-in-fact to collect and
receive all payments from all Customers and to exercise at any time any of the
following powers: (i) to receive, endorse, and deposit in BLN's name all
payments received from Customers; (ii) to transmit to any party notice that
Client has granted BLN a security interest in the Receivables or that any
Receivable has been sold to BLN; (iii) to institute any proceedings deemed by
BLN necessary to effect collection of any Receivable; (iv) to sign Client's name
on any financing statement, or any amendment or continuation statement thereto
with respect to any Receivable; and (v) to take any action deemed reasonable to
fulfill the terms of this Agreement.
3.5 At the request of BLN at any time and from time to time, Client
shall, at its expense, duly execute and deliver, or cause to be duly executed
and delivered, such further agreements, documents and instruments, and do or
cause to be done such further acts as may be necessary or proper to evidence,
perfect, maintain and enforce the security interests and the priority of the
security instruments. Where permitted by law, Client at any time hereby
authorizes BLN to execute, if required, and file one or more UCC financing
statements signed only by BLN.
3.6 ACH Authorization. In order to satisfy any of the Obligations of
Client, Client authorizes BLN to initiate electronic debit or credit entries
through the ACH system to the Blocked Account.
3.7 IT IS EXPRESSLY UNDERSTOOD BY CLIENT THAT ANY AND ALL LOANS,
ADVANCES AND/OR SPECIAL ADVANCES MADE TO, FOR AND/OR ON BEHALF OF CLIENT SHALL
BE CROSS COLLATERALIZED AND CROSS DEFAULTED.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES AND COVENANTS
4.1 Client warrants that all Receivables are, and at the time of
assignment to BLN, will be BONA FIDE and existing obligations of the Customers
arising out of the sale of goods and/or the rendition of services in the
ordinary course of Client's business, free and clear of all liens, security
interests and encumbrances; that all Receivables are and will be owned and owing
to Client without any Dispute; and that Client is now, and shall at all times
during the term of this Agreement, solvent and, fully authorized to assign and
sell the Receivables to BLN hereunder without any restriction of any kind and
grant BLN the security interests described herein.
4.2 Client shall, for each year this Agreement remains in effect,
provide BLN with a copy of its financial statements which shall be prepared as
required in Section 6 and be pre AND pared in accordance with generally accepted
accounting standards reflecting the financial condition of Client including,
without limit, balance sheet and income/loss statements and shall provide these
financial statements not later than one hundred twenty (120) days after the end
of its fiscal year and within sixty (60) days after the end of each quarter. All
accountants providing such annual financial statements must be approved by BLN
in its sole discretion. Client also agrees to furnish BLN copies of Federal
Income Tax returns within one hundred twenty (120) days following the end of
Clients fiscal year (plus extensions). Client shall also provide each Guarantors
financial statement, in form acceptable to BLN, and each Guarantors tax return
within one hundred (120) days after the end of the client's fiscal year. Client
shall also furnish or cause to be furnished to BLN such budgets, projections and
other information respecting the business of the Client, as BLN may, from time
to time, reasonably request.
4.3 Client shall reimburse BLN for any costs or expenses incurred by BLN
for any reports from Dun & Bradstreet or any other credit-reporting agency
concerning Customers or Client, which may be required at BLN's sole discretion
from time to time. Client shall reimburse BLN for all fees or expenses incurred
by BLN for wire transfers or other delivery charges on items shipped to Client
if requested by Client and for all fees and expenses with respect to the
collection of the Receivables. Client shall pay to BLN on demand for all costs,
expenses, filing fees and taxes paid or payable in connection with the
preparation, negotiation, execution, delivery, recording, administration,
collection, liquidation, enforcement and defense of the Obligations, BLN's
rights in the Receivables, in the other Collateral, this Agreement and all other
documents executed in connection herewith or therewith and the consummation of
the transactions contemplated hereby and thereby, and any amendments,
supplements or consents which may hereafter be contemplated whether or not
executed) or entered in respect hereof and hereof, including, without
limitation,
a) all costs and expenses of filing or recording (including Uniform
Commercial Code financing statement filing taxes and fees, documentary taxes,
intangibles taxes and mortgage recording taxes and fees, if applicable); (b) all
insurance premiums, appraisal fees and search fees; (c) costs and expenses of
remitting loan proceeds, collecting checks and other items of payment, and
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establishing and maintaining the Blocked Account and any lockbox, together with
BLN's customary charges and fees with respect thereto; (d) costs and expenses of
preserving and protecting the Collateral; (e) costs and expenses including but,
not limited attorney's fees and/or accountant fees and/or fees related to the
appraisal of any BLN's Collateral paid or incurred in connection with obtaining
payment of the Obligations, enforcing the security interests and liens of BLN,
selling or otherwise realizing upon the Collateral, and otherwise enforcing the
provisions of this Agreement or defending any claims made or threatened against
BLN arising out of the transactions contemplated hereby and thereby (including
preparations for and consultations concerning any such matters); (f) all
out-of-pocket expenses and costs heretofore and from time to time hereafter
incurred by BLN during the course of periodic field examinations of the
Collateral and Client's operations, plus a per diem charge at the rate of
$1,000, per person per day for BLN's examiners in the field and office; (g) the
fees and disbursements of counsel (including legal assistants) to BLN in
connection with any of the foregoing; and (h) all costs, expenses, filing fees
and taxes paid or payable by BLN in connection with the collection, the
liquidation, the enforcement and defense of the Obligations, BLN's rights in the
Collateral, this Agreement, and all other documents related herewith or
therewith, and the Receivables.
4.4 Client shall execute any documents at present or which may be
required in the future to evidence this transaction as may be required by BLN or
BLN's counsel and/or to execute all reasonable documentation in the future that
may not have been obtained from Client by BLN at the time of closing that maybe
required by BLN to maintain its security interest or to continue funding Client.
4.5 With respect to each Receivable: (a) Client's principal place of
business and Client's books and records relating to the Receivables are located
at the address set forth in Section 6.3 of this Agreement; (b) Client is the
sole owner of each Receivable, free and clear of all liens and encumbrances, and
Client will not assign, sell, transfer, pledge, grant a security interest in or
encumber or otherwise dispose of or abandon any part or all of the Receivables;
(c) Client has made proper entries in its books disclosing the sale of
Receivables to BLN; (d) each Customer has legal capacity to contract and is
indebted to Client in the amount indicated in Client's books and records; (e)
each Receivable is valid, legally enforceable, and represents a bona fide
undisputed indebtedness; (f) no Receivable is subject to any valid defense,
offset, counterclaim allowance, or is contingent; (g) each Customer is solvent,
and each Receivable will be paid in full on or before its maturity date; (h) no
agreement for any deduction or allowance of any kind exists or will be made by
Client; (i) all information appearing in Client's books and records relating to
each Receivable is true and correct in all respects; (j) all signatures and
endorsements appearing on the invoices and documents relating to the Receivables
are genuine, and all signatories and endorsers have full capacity and authority
and were fully authorized to contract for the Receivables; (k) the Customer with
respect to the Receivable is not a Related Person. Client will assign and sell
to BLN all of its receivables and will not assign or sell to any other party,
nor will it retain any of its Receivables and (l) to the extent that any
Receivable constitutes a retail sale to a Customer, the Customer has executed a
consumer finance agreement in a form previously approved by BLN.
4.6 Client will maintain books and records in accordance with generally
accepted accounting principles consistently applied. BLN shall have full access
to, and the right to audit and make copies from Client's books and records
relating to Receivables or this Agreement. In addition to the information
requested in Section 4.2 above, Client will furnish to BLN such financial
statements and other information regarding Client's business affairs as BLN may
request. Futhermore, Client's balance sheets and statements of income and
retained earnings, and all accompanying financial information heretofore
furnished to BLN by us, are complete and correct in all material respects and
fairly represent our financial condition as at the dates of said financial
statements and the results of its operations for the periods ending on said
dates. Since the date of the latest of such statements there has been no
material adverse change in our financial condition from that set forth in said
balance sheets as at that date. No information, exhibit, or report furnished by
Client to BLN in connection with the negotiation of this Agreement contained any
material misstatement of fact or omitted to state a material fact or any fact
necessary to make the statement contained therein not materially misleading.
Client has /will satisfied all judgments and are not in default with respect to
any judgment, writ, injunction, decree, rule, or regulation of any court,
arbitrator, or federal, state, municipal, or other governmental authority,
commission, board, bureau, agency, or instrumentality, domestic or foreign.
Lastly, client has /will file all tax returns (federal, state and local)
required to be filed and has paid all taxes, assessments, and governmental
charges and levies thereon due, including interest and penalties
4.7 Nothing in this Agreement shall be construed to constitute BLN as
agent for Client or to obligate BLN to assume any of Client's obligations with
respect to any Receivable. BLN shall not assume or create any liability for any
error or omission or delay occurring in a settlement, collection or payment of
any Receivable. Notwithstanding the foregoing, if Client fails to perform any
obligation that Client was required to perform in order to maintain the
obligation of a Customer to make payments on a Receivable, BLN may perform or
retain others to perform such obligation, at Client's sole expense and such
expense shall constitute part of Client's Obligations described hereunder.
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4.8 Client shall reimburse BLN on demand for all costs incurred by BLN
in the enforcement for payment of the Receivables all fees, costs and expenses
of any kind and nature which BLN may incur in the filing notices, making lien or
title examinations protecting, maintaining, preserving or enforcing agreements
relating to the Receivables or any other matters related to this Agreement which
shall be added and deemed part of Client's Obligations hereunder.
4.9 Client will not (a) sell any of its assets other than the sale of
inventory in the ordinary course of business; (b) encumber or xxxxx x xxxx on
any of its assets, other than the lien in favor of BLN; (c) incur, create,
assume, become or be liable in any manner with respect to, or permit to exist,
any obligations or indebtedness, except: (i) the Obligations; and (ii) trade
obligations and normal accruals in the ordinary course of business not yet due
and payable; (d) directly or indirectly, make any loans or advance money or
property to any Person, or invest in (by capital contribution, dividend or
otherwise) or purchase or repurchase the stock or indebtedness of all or a
substantial part of the assets or property of any Person, or guarantee, assume,
endorse, or otherwise become responsible for (directly or indirectly) the
indebtedness, performance, obligations or dividends of any Person or agree to do
any of the foregoing; or (e) directly or indirectly, declare or pay any
dividends on account of any shares of class of capital stock of Client now or
hereafter outstanding, or set aside or otherwise deposit or invest any sums for
such purpose, or redeem, retire, defease, purchase or otherwise acquire any
shares of any class of capital stock (or set aside or otherwise deposit or
invest any sums for such purpose) for any consideration other than common stock
or apply or set apart any sum, or make any other distribution (by reduction of
capital or otherwise) in respect of any such shares or agree to do any of the
foregoing.
4.10 Client shall not, directly or indirectly, (a) merge into or with or
consolidate with any other Person or permit any other Person to merge into or
with or consolidate with it; or (b) sell, assign, lease, transfer, abandon or
otherwise dispose of any stock or indebtedness to any other Person or any of its
assets to any other Person except for sales of inventory in the ordinary course
of business; or (c) form or acquire any additional subsidiaries; (d) wind up,
liquidate or dissolve; (e) agree to do any of the foregoing; or (f) change its
name, state of organization, type of organization or the location of its
business, without in any and/or all events as hereinbefore set forth providing
BLN with at least thirty (30) days prior written notice.
4.11 Client shall not, directly or indirectly, open, establish or
maintain any deposit account, investment account or any other account with any
bank or other financial institution, other than the Blocked Account and the
Client's operating account and payroll tax account as set forth in this
agreement, except as to any new or additional Blocked Accounts and other such
new or additional accounts which contain any Collateral or proceeds thereof,
with the prior written consent of BLN and subject to such conditions thereto as
BLN may establish.
4.12 The Receivables being advanced against (i) are genuine, are in all
respects what they purport to be, and are not evidenced by a judgment; (ii)
represent undisputed, bona fide transactions completed in accordance with the
terms and provisions contained in the documents delivered to BLN with respect
thereto; (iii) the amounts shown on our books and records and all reports,
invoices and statements which may be delivered to BLN, in written or electronic
form, with respect thereto are actually and absolutely owing to Client and are
not in any way contingent; (iv) no payments have been made or shall be made
thereon except payments immediately delivered to BLN pursuant to this Agreement;
(v) there are no set-offs, counterclaims, or disputes existing or asserted with
respect thereto and Client have not made any agreement with any Customer for any
deduction there from except for trade discounts which discounts if made are
reflected in the calculation of the face value of the respective invoice related
thereto; (vi) there are no facts, events or occurrences which in any way impair
the validity or enforcement thereof or tend to reduce the amount payable there
under as shown on our books and records and all reports, invoices and statements
delivered to BLN with respect thereto; (vii) to the best of our knowledge, all
Customers have the capacity to contract and are solvent; (viii) the services
furnished and/or goods sold giving rise thereto are not subject to any lien,
claim, encumbrance or security interest except your security interests; (ix)
Client have no knowledge of any fact or circumstance which would impair the
validity or collect ability thereof; and (x) to the best of our knowledge, there
are no proceedings or actions which are threatened or pending against any
Customer which might result in any material adverse change in such Customer's
financial condition.
4.13 List of all of Client's present trade and fictitious names:
(None)
4.14 List of all of Client's former trade, fictitious and corporate,
limited liability company or partnership (as applicable) names
(None)
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4.15 Client is a corporation, limited liability company proprietorship or
limited partnership (as applicable) duly organized, validly existing, and in
good standing under the laws of the State of Nevada, Michigan as it may apply
and has the power and authority to enter into and perform all of our obligations
under this Agreement and all other documents and instruments now or hereafter
executed in connection with this Agreement. Furthermore, the undersigned
Xxxxxxxxx XxXxxx certifies and states to BLN that he is the President and CEO of
the various company's and as its principal has or will have obtained the
necessary and full authority to enter into and obligate Client under this
agreement and obtain funding based on the pledging of the Client's assets as
collateral to BLN.
4.16 The execution, delivery and performance by Client of this Agreement
and all other related documents have been duly authorized by all necessary
corporate, limited liability company or partnership (as applicable) action and
will not violate any provision of law or of our charter or bylaws or partnership
or operating agreement, as applicable, or result in the breach of or constitute
a default or require any consent under, or result in the creation of any lien,
charge, or encumbrance upon any of our property or assets pursuant to any
indenture or other agreement or instrument to which Client are a party or by
which Client or our property may be bound or affected.
ARTICLE 5
TERM, DEFAULT AND DEFAULT REMEDIES
5.1 Client will notify BLN promptly of and settle all Disputes at
Client's cost and expense, including attorneys' fees, and Client will pay BLN
promptly the amount of the Receivables affected thereby. However, if any Dispute
is not settled by Client within ninety (90) days of the date of the invoice
evidencing the Receivable as shown on its face, or within such shorter period as
BLN may determine, BLN may settle, compromise or litigate such Dispute in BLN's
or Client's name upon such terms as BLN in BLN's sole discretion deems advisable
and for Client's account and risk. BLN may also, in BLN's discretion and without
notice to Client, take possession of and sell any returned goods at such prices
and upon such terms, as BLN deems advisable. BLN may charge any deficiency, and
all costs and expenses, including reasonable attorneys' fees, associated with
the Disputed Receivable to Client. In addition to all other rights to which BLN
is entitled under this Agreement, if there is any Dispute as to any Receivable
or if the Client is otherwise obligated to repurchase the Receivable under the
terms of Section 5.5 hereof, BLN may at any time charge back the amount of such
Receivable to Client. BLN may also charge back the amount of any Receivable
which is not paid to BLN at maturity due to acts of God, war, civil strife,
currency restrictions, foreign political impediments or the like. The charge
back of a Receivable shall not constitute a reassignment of the Receivable, and
title thereto and to the goods represented thereby shall remain vested in BLN
until all Obligations relating to such Receivable are paid in full. If any
Receivable remains unpaid after ninety (90) days from the date of the invoice
evidencing such Receivable, such Receivable shall be deemed to be in Dispute.
5.2 In the event of any breach by Client of any provision hereof, or
upon the termination of this Agreement, Client will pay all Obligations upon
demand unless such default or breach is expressly waived by BLN. Should BLN
waive any default hereunder, such waiver shall not be deemed to amend this
Agreement and constitute a waiver of any such subsequent similar event of
default.
5.3 Should a default occur; then, in any such event, BLN shall have the
right to terminate this Agreement at any time without notice. Notwithstanding
any termination of this Agreement, all rights and security interests described
herein and all of the terms, conditions, and provisions hereof shall continue in
full force and effect until all transactions entered into prior to termination
have been fully concluded and all Obligations have been paid in full. Client
shall pay to BLN on demand the amount of any Obligations arising after
termination of this Agreement and payment in full of the Obligations then
outstanding.
5.4 Except as otherwise provided herein, Client shall hold harmless and
indemnify BLN for any liability under this Agreement. Should this Agreement be
terminated by either party for any reason BLN is authorized to withhold all
Reserve amounts until the full amount of all Receivables purchased by BLN
hereunder, plus any other Obligations that Client may owe hereunder, has been
collected by BLN.
5.5 Upon the occurrence of any Default, without further notice to
Client, BLN shall have the immediate right to (i) cease purchasing Receivables;
(ii) terminate this Agreement and enforce the liquidated damages provisions in
this agreement ; (iii) enforce against Client and any Guarantor immediate
payment of all of Client's Obligations; (iv) collect all amounts due and owing
on all Receivables; (v) require Client to assemble the Collateral and make it
available to BLN at a place designated by BLN; (vi) enter upon Client's premises
to take possession of the Collateral; and (vii) appropriate, set off and apply
the Collateral to the payment of Client's Obligations in such order and manner
as BLN in its sole discretion shall determine, or settle, compromise or release,
in whole or in part, any amounts owing on the Collateral, or prosecute any
proceeding with respect to the Collateral, or extend the time of payment of any
or all of the Collateral, or issue credits regarding the Collateral or sell,
assign and deliver the Collateral (or any part thereof), at public or private
sale and apply the net cash proceeds resulting from the exercise of any of the
foregoing rights or remedies to the payment of the Obligations, in such order as
BLN in its sole discretion, may elect, and Client and any Guarantor hereof shall
remain liable to BLN for any deficiency.
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5.6 The initial term of this Agreement shall expire on May 31, 2009 and
is subject to the early termination provisions herein this agreement in the
event that Client decides to terminate prior to the foregoing date. This
Agreement may be extended for up to six (6) additional months at the sole and
exclusive option of Client by written notice by Client to BLN. Client shall deal
exclusively with BLN for funding its Receivables and other loans that maybe made
by and between BLN and client from time to time. In the event that Client
extends this agreement for another six months with BLN no early termination fee
shall apply to the extension.
5.7 This Agreement may be terminated without any cause (a) by BLN upon
giving Client written notice stating a termination date not less than ninety
(90) days after the date such notice is mailed or dispatched, or (b) by Client
giving BLN written notice stating a termination date not less than ninety (90)
days after the date such notice is mailed or dispatched. In the event that
Client elects to terminate this Agreement on a date other than the end of the
initial or a renewal term, Client shall pay to BLN a termination fee in an
amount equal to the Discount for each month or portion of a month remaining in
the initial or renewal term.
5.8 Notwithstanding any termination, all of the terms, conditions, and
provisions hereof shall continue in full force and effect until all transactions
entered into prior to termination have been fully concluded and all of Client's
Obligations have been paid in full. After termination of this Agreement, Client
shall pay to BLN on demand the amount of Client's Obligations then outstanding
and any of Client's Obligations arising thereafter.
5.9 No Lien Termination without Release. In recognition of BLN's right
to have its attorneys' fees and other expenses incurred in connection with this
Agreement secured by the Collateral, notwithstanding payment in full of all
Obligations by Client, BLN shall not be required to record any terminations or
satisfactions of any of BLN's liens on the Collateral unless and until Complete
Termination has occurred. Client understands that this provision constitutes a
waiver of its rights under ss.9-513 of the UCC
5.10 If a Default occurs hereunder, BLN shall have the right at its sole
option to immediately terminate this Agreement without notice to Client. If BLN
exercises such termination right, in addition to all other rights and remedies
BLN may have hereunder and in addition to all of Client's Obligations, Client
agrees to pay to BLN upon demand as liquidated damages, a sum equal to Three
Percent (3.00%) per month of all outstanding loans/advances and/or other
indebtedness for each month or portion of a month remaining in the term.
5.11 Waiver of Notice. BLN'S FAILURE TO CHARGE OR ACCRUE INTEREST OR FEES
AT ANY "DEFAULT" OR "PAST DUE" RATE SHALL NOT BE DEEMED A WAIVER BY BLN OF ITS
CLAIM THERETO.
5.12 Client agrees that upon a Default, BLN may exercise and pursue any
and all rights and remedies available to BLN hereunder, and under any other
documents and applicable law, including, but not limited to, all the rights and
remedies of a secured party upon default under the Illinois Uniform Commercial
Code, as amended from time to time, (whether or not such Code applies to the
affected collateral), or any other applicable law. The proceeds of any
disposition of the collateral described in Section 5 hereof shall be applied
first toward all costs, expenses and attorney's fees incurred by BLN at any time
in the collection of the Obligations and in the protection and disposition of
such collateral, and the balance shall be applied toward payment of the
Obligations. Any surplus Client remaining after any such disposition shall be
paid to us. Client agrees that Client shall remain liable for any deficiency
remaining after any such disposition and shall pay to BLN such deficiency
forthwith. To the extent that Client lawfully may, Client hereby agree that
Client will not invoke any law relating to the marshalling of collateral which
might cause delay in or impede the enforcement of your rights under this
Agreement or under any other instrument creating or evidencing any of the
Obligations or under which any of the Obligations is outstanding or by which any
of the Obligations is secured or payment thereof is otherwise assured, and, to
the extent that Client lawfully may, Client hereby irrevocably waive the
benefits of all such laws.
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ARTICLE 6
LOAN AND LINE AMOUNTS, GENERAL AND MISCELLANEOUS UNDERSTANDINGS
6.1 CLIENT'S 'S AGGREGATE OUTSTANDING OBLIGATIONS UNDER THIS AGREEMENT
SHALL NOT EXCEED $1,000,000 AT ANY GIVEN TIME, WITHOUT BLN'S PRIOR WRITTEN
CONSENT WITH SUB-LIMITS ON PURCHASE ORDER ADVANCES OF $200,000 AND INVENTORY
ADVANCES OF $250,000, RESPECTIVELY.
6.2 Facsimile and Electronic Mail transfer between the parties of this
Agreement shall be deemed acceptable and binding including signatures appearing
hereon as if the same was an original, this shall also apply to monthly client
loan ledgers. Client agrees that, the client loan ledgers on all/various loans
and account loan ledgers are in a form and substance acceptable to client and
are in fact true, accurate and the delivery of same made be made by mail,
facsimile or electronic mail transfer, Client will notify lender by the fifteen
of the following month if they did not receive billing/loan statements on
all/any loan.
6.3 All exhibits to which reference is made in this Agreement are
intended to be attached to this Agreement and, whether or not so attached, are
incorporated herein by reference and made a part hereof.
6.4 Any notice or communication required or permitted hereunder shall be
in writing, and may be given by registered or certified mail or overnight
courier service and, if given by registered or certified mail, same shall be
deemed to have been given and received when a registered or certified letter
containing such notice properly addressed, with postage prepaid, is deposited in
the United States mail; if given by overnight courier service, shall have been
deemed given and received one business day after being deposited with the
overnight courier service and if given otherwise than by overnight courier
service, registered or certified mail or by overnight courier service, it shall
be deemed to have been given when delivered to whom it is addressed. Any notice
or communication shall be given to the parties hereto at their following
addresses as outlined/written on page 1 of this agreement.
Any party hereto may at any time, by giving ten (10) days' written notice to the
other party hereto, designate any other address in substitution of the foregoing
address to which such notice or communication shall be given.
6.5 This Agreement shall be governed by and construed in accordance with
the laws of the State of Illinois and the laws of the United States of America
applicable to transactions in the State of Illinois. This Agreement shall be
deemed to be made and delivered in the State of Illinois, County of Xxxx, and
shall be effective only when accepted by BLN in Chicago, Illinois.
6.6 If any action is taken by BLN, in relation to the enforcement of the
terms of this Agreement, Client shall pay, in addition to all damages allowed by
law and other relief, all court costs and reasonable attorneys' fees incurred by
BLN in connection therewith. Such amounts shall be included in the amounts
determined herein and considered Obligations of the Client.
6.7 This Agreement, and all the terms, provisions, and conditions
hereof, shall be binding upon and shall inure to the benefit of the parties
hereto, and their respective heirs, legal representatives, successors and
assigns; provided, however, that nothing contained herein shall be construed to
permit any assignment otherwise prohibited by the terms of this Agreement
without the prior written consent of each of the parties hereto or their
permitted successors or assigns.
6.8 THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES. All prior agreements and understandings between
the parties with respect to the transactions contemplated hereby, whether oral
or in writing, are superseded by, and are deemed to have been merged into this
Agreement unless otherwise expressly provided herein.
6.9 Amendments or modifications may be made to this Agreement only in
documents duly executed by all of the parties hereto and any alleged amendment
or modification, which is not so documented, shall not be effecting as to any
party.
6.10 This Agreement is intended to be performed in accordance with and
only to the extent permitted by all applicable laws ordinances, rules and
regulation. If any provisions of this Agreement or the application thereof to
any person or circumstance shall, for any reason and to any extent, be deemed
unenforceable, such unenforceability does not destroy the basis of the bargain
among the parties as expressed herein, the remaining provisions of this
Agreement and the application of such provision to other persons or
circumstances shall not be affected thereby, but rather shall be enforced to the
greatest extent permitted by law.
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6.11 Whenever required by the context, as used in this Agreement, the
singular number shall include the plural and the neuter shall include the
masculine or feminine gender, and VICE VERSA.
6.12 Any paragraph headings appearing in this Agreement are for
convenience of reference only and are not intended or limited or define the text
of any paragraph hereof.
6.13 No person, firm or other entity other than the parties hereto shall
have any rights or claims under this Agreement.
6.14 The parties hereto covenant and agree that they will execute such
other and further instruments and documents as are or may become necessary or
convenient to effectuate and carry out the terms of this Agreement.
6.15 No waiver of a breach or violation of any provision of this
Agreement shall operate or be construed as a waiver of any subsequent breach or
limit or restrict any right or remedy otherwise available.
6.16 The rights and remedies expressed herein are cumulative and not
exclusive of any rights and remedies otherwise available.
6.17 Upon the request of either party, the other party hereto will
provide certified copies of relevant documents evidencing their authority to
execute this Agreement and to consummate the transaction described herein.
6.18 Time is of the essence with regard to each of the provisions of this
Agreement.
6.19 This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which when
so executed and delivered shall be deemed to be an original and all of which
counterparts taken shall constitute but one and the same instrument.
6.20 Client and BLN irrevocably consent and submit to the non-exclusive
jurisdiction of the state courts of Xxxx County , Illinois and the United States
District Court serving Xxxx County, Illinois and waive any objection based on
venue or FORUM NON CONVENIENS with respect to any action instituted therein
arising under this Agreement or in any way connected with or related or
incidental to the dealings of the parties hereto in respect of this Agreement or
the transactions related hereto or thereto, in each case whether now existing or
hereafter arising, and whether in contract, tort, equity or otherwise, and agree
that any dispute with respect to any such matters shall be heard only in the
courts described above (except that BLN shall have the right to bring any action
or proceeding against Client or its property in the courts of any other
jurisdiction which BLN deems necessary or appropriate in order to realize on the
Collateral or to otherwise enforce its rights against Client or its property).
(a) Client hereby waives personal service of any and all process upon it
and consents that all such service of process may be made by certified mail
(return receipt requested) directed to its address set forth on the signature
pages hereof and service so made shall be deemed to be completed three (3) days
after the same shall have been so deposited in the U.S. mail, or, at BLN's
option, by service upon Client in any other manner provided under the rules of
any such courts. Within thirty (30) days after such service, Client shall appear
in answer to such process, failing which Client shall be deemed in default and
judgment may be entered by BLN against Client for the amount of the claim and
other relief requested.
6.21 BLN shall not have any liability to Client (whether in tort,
contract, equity or otherwise) for losses suffered by Client in connection with,
arising out of, or in any way related to the transactions or relationships
contemplated by this Agreement, or any act, omission or event occurring in
connection herewith, unless it is determined by a final and non-appealable
judgment or court order binding on BLN, that the losses were the result of acts
or omissions constituting gross negligence or willful misconduct. In any such
litigation, BLN shall be entitled to the benefit of the rebuttable presumption
that it acted in its sole discretion and with the exercise of ordinary care in
the performance by it of the terms of this Agreement.
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ARTICLE 7
7.1 CLIENT AND BLN EACH HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (I) ARISING UNDER THIS AGREEMENT OR ANY
OF THE OTHER FINANCING AGREEMENTS, OR (II) IN ANY WAY CONNECTED WITH OR RELATED
OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT
OR THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. CLIENT
AND BLN EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT CLIENT
OR BLN MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF
THEIR RIGHT TO TRIAL BY JURY.
(THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK)
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth in the initial paragraph hereof.
CLIENT:
VOYAGER PETROLEUM, INC.
By: /s/ Xxxxxxxxx X. XxXxxx
----------------------------------------
XXXXXXXXX X. XXXXXX: ITS PRESIDENT & CEO
MONARCH PETROLEUM, INC.
By: /s/ Xxxxxxxxx X. XxXxxx
----------------------------------------
XXXXXXXXX X. XXXXXX: ITS PRESIDENT & CEO
ACCEPTED ON THIS THE
5th day of June, 2008
--------------------------------------------
in Chicago, Illinois:
--------------------------------------------
BLN CAPITAL FUNDING, LLC
By: /s/ Xxxxxx Xxxxxxxxxx
----------------------------------------
XXXXXX XXXXXXXXXX
Title: MANAGER
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