FACTORING AND SECURITY AGREEMENT
THIS FACTORING AND SECURITY AGREEMENT is made as of January 26, 2001, by
and between GENROCO, INC., a Wisconsin corporation ("Seller") and GREENFIELD
COMMERCIAL CREDIT, L.L.C. ("Purchaser").
1. DEFINITIONS. The following terms used herein shall have the
following meaning. All capitalized terms not herein defined shall have the
meaning set forth in the Uniform Commercial Code:
"AVOIDANCE CLAIM" - any claim that any payment received by Purchaser from
or for the account of an Account Debtor is avoidable under the Bankruptcy Code
or any other debtor relief statute.
"CLEARANCE DAYS" - (i) three (3) business days for checks drawn on banks
located within the state in which Purchaser has its principal place of business,
and for all electronic funds transfers, and (ii) seven (7) business days for all
other payments.
"CLOSED" - a Purchased Account is closed upon the first to occur of (i)
receipt of full payment by Purchaser or (ii) the unpaid Face Amount has been
charged to the Reserve Account by Purchaser pursuant to the terms hereof.
"COLLATERAL" - any collateral now or hereafter described in any form UCC-1
filed against Seller naming Purchaser as the secured party, and all of Seller's
right, title and interest in and to the following property, now owned and
hereafter acquired:
All Accounts (including Accounts purchased by Purchaser hereunder and
repurchased by Seller);
All general intangibles, including, but not limited to, tax refunds,
registered and unregistered patents, trademarks, service marks, copyrights,
trade names, trade secrets, customer lists, licenses, documents,
instruments, deposit accounts, certificates of deposit, and all rights of
Seller as a seller of goods, including rights of reclamation, replevin and
stoppage in transit;
All proceeds of the foregoing, including, but not limited to, all
insurance proceeds, all claims against third parties for loss or
destruction of or damage to any of the foregoing, and all income from the
lease or rental of any of the foregoing; and
All books and records relating to all of the foregoing property and
interests in property, including, without limitation, all computer
programs, printed output and computer readable data in the possession or
control of the Seller, any computer service bureau or other third party.
"DISCOUNT FEE" - the Discount Fee Percent multiplied by the original Face
Amount of each Purchased Account.
"DISCOUNT FEE PERCENT" - 1.0% for each ten (10) days or portion thereof for
the first (1st) ninety (90) days after the Purchase Date.
"ELIGIBLE ACCOUNT" - an Account which is acceptable for purchase as
determined by Purchaser in the exercise of its reasonable sole credit or
business judgment, including foreign Accounts if insured by credit insurance
which is satisfactory in all respects to Purchaser.
"EVENTS OF DEFAULT" - See Section 13.
"FACE AMOUNT" - the face amount due on an Account at the time of Purchase.
"INSOLVENCY EVENT" - the filing of a petition under any state or federal
debtor relief or liquidation statute by or against an Account Debtor, within the
Insolvency Period.
"INSOLVENCY PERIOD" - ninety-one (91) days from the Purchase Date.
"LATE CHARGE" - 2.0% for each ten (10) days or portion thereof.
"LATE PAYMENT DATE" - the date which is ninety (90) days from the date on
which a Purchased Account was Purchased.
"MAXIMUM AMOUNT" - $500,000.00.
"MISDIRECTED PAYMENT FEE" - fifteen percent (15%) of the amount of any
payment on account of a Purchased Account which has been received by Seller and
not delivered in kind to Purchaser within two (2) business days following the
date of receipt by Seller.
"NOTATION" - "This account has been assigned and is payable directly to
GREENFIELD COMMERCIAL CREDIT, located at 0000 X. Xxxx Xxxx Xxxx, Xxxxx 000, Xxxx
XX 00000, to whom notice of any claim or dispute must be advised, either in
writing or by telephone (000-000-0000)."
"OBLIGATIONS" - all present and future obligations owing by Seller to
Purchaser whether or not for the payment of money, whether or not evidenced by
any note or other instrument, whether direct or indirect, absolute or
contingent, due or to become due, joint or several, primary or secondary,
liquidated or unliquidated, secured or unsecured, original or renewed or
extended, whether arising before, during or after the commencement of any
Bankruptcy Case in which Seller is a Debtor, including but not limited to any
obligations arising pursuant to letters of credit or acceptance transactions or
any other financial accommodations.
"PARTIES" - Seller and Purchaser.
"PURCHASE DATE" - the date on which Seller has been advised in writing that
Purchaser has agreed to purchase an Account.
"PURCHASE DISCOUNT" - the Reserve Percentage multiplied by the original
face amount of each Purchased Account.
"PURCHASE PRICE" - the Face Amount less the Purchase Discount.
"PURCHASED ACCOUNTS" - Accounts purchased hereunder which have not been
Repurchased.
"REPURCHASED" - an Account has been repurchased when Seller has paid to
Purchaser the then unpaid Face Amount upon demand by Purchaser under the terms
hereof.
"REQUIRED RESERVE AMOUNT" - the Reserve Percentage multiplied by the unpaid
balance of Purchased Accounts.
"RESERVE ACCOUNT" - a bookkeeping account on the books of the Purchaser
representing an unpaid portion of the Purchase Price, maintained by Purchaser to
ensure Seller's performance with the provisions hereof.
"RESERVE PERCENTAGE" - 20% for the first (1st) purchase of Accounts and 30%
for each subsequent purchase of Accounts, except that Purchaser may in its sole
discretion effective upon written notice to Seller reduce the Reserve Percentage
below 30% to not less than 20% for any such subsequent purchase.
"RESERVE SHORTFALL" - the amount by which the Reserve Account is less than
the Required Reserve Amount.
"SCHEDULE OF ACCOUNTS" - a form supplied by Purchaser from time to time
wherein Seller lists such of its Accounts as it requests that Purchaser purchase
under the terms of this Agreement.
"SCHEDULED TERMINATION DATE" - the date which is six (6) months from the
date hereof.
"SELLER'S ACCOUNT" - any demand deposit account maintained by Seller, or
represented by an employee of Seller to be maintained by Seller.
2. SALE; PURCHASE PRICE; BILLING; RESERVE.
2.1 ASSIGNMENT AND SALE.
2.1.1 Seller shall offer to sell to Purchaser as absolute
owner, all of Seller's Accounts by listing them from time to time on Schedules
of Accounts, sent by Seller to Purchaser. Upon purchase, Purchaser will assume
the risk of non-payment on Purchased Accounts, so long as the cause of non-
payment is solely due to the occurrence of an Insolvency Event. If the
Insolvency Event occurs subsequent to the repurchase of any Account by Seller as
required hereunder, Purchaser's assumption of such credit risk is conditioned on
Seller so advising Purchaser in writing within sixty (60) days after the
occurrence of such Insolvency Event, whereupon Purchaser shall repurchase such
Account for the then unpaid Face Amount.
2.1.2 Each Schedule of Accounts shall be accompanied by such
documentation supporting and evidencing the Account as Purchaser shall from time
to time request.
2.1.3 Purchaser shall purchase from Seller such Accounts as
Purchaser determines to be an Eligible Account, so long as the total outstanding
Purchase Price of Purchased Accounts does not exceed, before and after such
purchase, the Maximum Amount.
2.1.4 Purchaser shall pay the Purchase Price, less any
amounts due to Purchaser from Seller, including, without limitation, any amounts
due under Section 2.3 hereof, of any Purchased Account, to Seller's Account
within two (2) business days of the Purchase Date, whereupon the Accounts shall
be deemed purchased hereunder.
2.1.5 Purchaser shall pay to Seller any unpaid balance of the
Purchase Price of any Purchased Account which has been the subject of an
Insolvency Event within ninety days of the date on which Purchaser acquires
knowledge thereof.
2.2 BILLING. Purchaser may send a monthly statement to all Account
Debtors itemizing their account activity during the preceding billing period.
All Account Debtors will be instructed to make payments to Purchaser.
2.3 RESERVE ACCOUNT.
2.3.1 Purchaser shall establish the Reserve Account upon the
date hereof and charge the Reserve Account for the Purchase Price of each
Purchased Account.
2.3.2 Purchaser shall charge the Reserve Account for the
Discount Fee for each Purchased Account until such Purchased Account is
collected or Repurchased.
2.3.3 Purchaser shall credit the Reserve Account for each
payment received by Purchaser on each Purchased Account.
2.3.4 Purchaser may apply a portion of any Purchase Price to
the Reserve Account in the amount of the Reserve Shortfall.
2.3.5 Seller shall pay to Purchaser on demand the amount of
any Reserve Shortfall.
2.3.6 Purchaser shall pay to Seller, upon Seller's request,
any amount by which collected funds in the Reserve Account are greater than the
Required Reserve Amount; provided, that Seller shall be entitled to make such
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demand not more than twice in any one (1) month.
2.3.7 Purchaser may charge the Reserve Account with any
Obligation, including any amounts due from Seller to Purchaser hereunder.
2.3.8 Purchaser may pay any amounts due Seller hereunder by a
credit to the Reserve Account.
2.3.9 Upon termination of this Agreement, Purchaser may
retain the Reserve Account for ninety (90) days after collection or repurchase
by Seller of all Purchased Accounts to be applied to payment of any Obligations
which were unknown to Purchaser at the time of termination.
3. AUTHORIZATION FOR PURCHASES. Subject to the terms and conditions of
this Agreement, Purchaser is authorized to purchase Accounts upon telephonic,
facsimile or other instructions received from [NEED NAMES OF AUTHORIZED PERSONS
FROM GENROCO] or any officer, employee or representative of Seller who has been
identified in writing by Seller to Purchaser as an authorized representative.
4. FEES AND EXPENSES. Seller shall pay to Purchaser:
4.1 MISDIRECTED PAYMENT FEE. Any Misdirected Payment Fee immediately
upon its accrual.
4.2 LATE CHARGE. Immediately upon accrual, the Late Charge on:
4.2.1 All past due amounts due from Seller to Purchaser
hereunder; and
4.2.2 The amount of any Reserve Shortfall.
4.3 OUT-OF-POCKET EXPENSES. Immediately upon incurrence, the out-of-
pocket expenses directly incurred by Purchaser in the administration of this
Agreement such as wire transfer fees, postage and audit fees. Seller shall not
be required to pay for more than four audits per twelve month period.
5. REPURCHASE OF ACCOUNTS.
5.1 Purchaser may require that Seller repurchase, by payment of the
unpaid Face Amount thereof, together with any unpaid fees relating to the
Purchased Account on demand, or, at Purchaser's option, by Purchaser's charge to
the Reserve Account:
5.1.1 Notwithstanding the occurrence of an Insolvency Event:
5.1.1.1 Any Purchased Account, the payment of which
has been disputed by the Account Debtor obligated thereon, Purchaser being under
no obligation to determine the bona fides of such dispute;
5.1.1.2 All Purchased Accounts upon the occurrence
of an Event of Default, or upon the termination date of this Agreement; and
5.1.2 If an Insolvency Event has not occurred on or prior to
the Late Payment Date, any Purchased Account which remains unpaid beyond the
Late Payment Date.
6. SECURITY INTEREST.
6.1 As collateral securing the Obligations, Seller grants to
Purchaser a continuing first priority security interest in and to the
Collateral.
6.2 Notwithstanding the creation of the above security interest, the
relationship of the parties shall be that of Purchaser and Seller of accounts,
and not that of lender and borrower.
7. CLEARANCE DAYS. For all purposes under this Agreement, Clearance Days
will be added to the date on which any payment is received by Purchaser.
8. AUTHORIZATION TO PURCHASER.
8.1 Seller hereby irrevocably authorizes Purchaser at Seller's
expense, to exercise at any time any of the following powers until all of the
Obligations have been paid in full: (a) receive, take, endorse, assign, deliver,
accept and deposit, in the name of Purchaser or Seller, any and all cash,
checks, commercial paper, drafts, remittances and other instruments and
documents relating to the Collateral or the proceeds thereof, (b) take or bring,
in the name of Purchaser or Seller, all steps, actions, suits or proceedings
deemed by Purchaser necessary or desirable to effect collection of or other
realization upon the accounts and other Collateral, (c) after an Event of
Default, change the address for delivery of mail to Seller and to receive and
open mail addressed to Seller, (d) after an Event of Default, extend the time of
payment of, compromise or settle for cash, credit, return of merchandise, and
upon any terms or conditions, any and all accounts or other Collateral which
includes a monetary obligation and discharge or release any account debtor or
other obligor (including filing of any public record releasing any lien granted
to Seller by such account debtor), without affecting any of the Obligations,
(e) execute in the name of Seller and file against Seller in favor of Purchaser
financing statements or amendments with respect to the Collateral, (f) pay any
sums necessary to discharge any lien or encumbrance which is senior to
Purchaser's security interest in the Collateral, which sums shall be included as
Obligations hereunder, and in connection with which sums the Late Charge shall
accrue and shall be due and payable, (g) file in the name of Seller or Purchaser
or both, (1) mechanics lien or related notices or (2) claims under any payment
bond, in connection with goods or services sold by Seller in connection with the
improvement of realty, and (h) notify any Account Debtor obligated with respect
to any Account, that the underlying Account has been assigned to Purchaser by
Seller and that payment thereof is to be made to the order of and directly and
solely to Purchaser
8.2 Seller hereby releases and exculpates Purchaser, its officers,
employees and designees, from any liability arising from any acts under this
Agreement or in furtherance thereof whether of omission or commission, and
whether based upon any error of judgment or mistake of law or fact, except for
willful misconduct or gross negligence. In no event will Purchaser have any
liability to Seller for lost profits or other special or consequential damages.
Without limiting the generality of the foregoing, Seller releases Purchaser from
any claims which Seller may now or hereafter have arising out of Purchaser's
endorsement and deposit of checks issued by Seller's customers stating that they
were in full payment of an account, but issued for less than the full amount
which may have been owed on the account.
8.3 Seller authorizes Purchaser to accept, indorse and deposit on
behalf of Seller any checks tendered by an account debtor "in full payment" of
its obligation to Seller. Seller shall not assert against Purchaser any claim
arising therefrom, irrespective of whether such action by Purchaser effects an
accord and satisfaction of Seller's claims, under Section3-311 of the Uniform
Commercial Code, or otherwise.
8.4 ACH Authorization. In order to satisfy any of the Obligations,
Purchaser is hereby authorized by Seller to initiate electronic debit or credit
entries through the ACH system to Seller's Account or any other deposit account
maintained by Seller wherever located. Seller may only terminate this
authorization by giving Purchaser thirty (30) days prior written notice of
termination.
9. COVENANTS BY SELLER.
9.1 After written notice by Purchaser to Seller, and automatically,
without notice, after an Event of Default, Seller shall not, without the prior
written consent of Purchaser in each instance, (a) grant any extension of time
for payment of any of the accounts or any other Collateral which includes a
monetary obligation, (b) compromise or settle any of the accounts or any such
other Collateral for less than the full amount thereof, (c) release in whole or
in part any account debtor or other person liable for the payment of any of the
accounts or any such other Collateral, or (d) grant any credits, discounts,
allowances, deductions, return authorizations or the like with respect to any of
the accounts or any such other Collateral.
9.2 From time to time as requested by Purchaser, at the sole expense
of Seller, Purchaser or its designee shall have access, during reasonable
business hours if prior to an Event of Default and at any time if on or after an
Event of Default, to all premises where Collateral is located for the purposes
of inspecting (and removing, if after the occurrence of an Event of Default) any
of the Collateral, including Seller's books and records, and Seller shall permit
Purchaser or its designee to make copies of such books and records or extracts
therefrom as Purchaser may request. Without expense to Purchaser, after an
Event of Default, Purchaser may use any of Seller's personnel, equipment,
including computer equipment, programs, printed output and computer readable
media, supplies and premises for the collection of accounts and realization on
other Collateral as Purchaser, in its sole discretion, deems appropriate.
Seller hereby irrevocably authorizes all accountants and third parties to
disclose and deliver to Purchaser at Seller's expense all financial information,
books and records, work papers, management reports and other information in
their possession relating to Seller.
9.3 Before sending any invoice evidencing an Account to an Account
Debtor, Seller shall xxxx same with the Notation, or such other notation as
Purchaser shall have advised Seller in writing.
9.4 Seller shall pay when due all payroll and other taxes, and shall
provide proof thereof to Purchaser in such form as Purchaser shall reasonably
require.
9.5 Seller shall not create, incur, assume or permit to exist any
lien upon or with respect to any Collateral now owned or hereafter acquired by
Seller.
9.6 Seller shall maintain insurance on all insurable property owned
or leased by Seller in the manner, to the extent and against at least such risks
(in any event, including but not limited to fire and business interruption
insurance) as usually maintained by owners of similar businesses and properties
in similar geographic areas. All such insurance shall be in amounts and form and
with insurance companies acceptable to Purchaser in its sole discretion. Seller
shall furnish to Purchaser: (a) upon written request, any and all information
concerning such insurance carried; (b) as requested by Purchaser, lender loss
payable endorsements (or their equivalent) in favor of Purchaser. All policies
of insurance shall provide for not less than thirty (30) days prior written
cancellation notice to Purchaser.
9.7 Notwithstanding that Seller has agreed to pay the Misdirected
Payment Fee pursuant to Section 4.1 hereof, Seller shall deliver in kind to
Purchaser on the next banking day following the date of receipt by Seller of the
amount of any payment on account of a Purchased Account.
9.8 Seller shall indemnify Purchaser from any loss arising out of the
assertion of any Avoidance Claim. Seller shall notify Purchaser within two
business days of it becoming aware of the assertion of an Avoidance Claim.
10. ACCOUNT DISPUTES. Seller shall notify Purchaser promptly of and, if
requested by Purchaser, will settle all disputes concerning any Purchased
Account, at Seller's sole cost and expense. However, Seller shall not, without
Purchaser's prior written consent, compromise or adjust any Purchased Account or
grant any additional discounts, allowances or credits thereon. Purchaser may,
but is not required to, attempt to settle, compromise, or litigate
(collectively, "Resolve") the dispute upon such terms as Purchaser in its sole
discretion deem advisable, for Seller's account and risk and at Seller's sole
expense. Upon the occurrence of an Event of Default Purchaser may Resolve such
issues with respect to any Account of Seller.
11. PERFECTION OF SECURITY INTEREST. Seller shall execute and deliver to
Purchaser such documents and instruments, including, without limitation, Uniform
Commercial Code financing statements, as Purchaser may request from time to time
in order to evidence and perfect its security interest in any collateral
securing the Obligations.
12. REPRESENTATION AND WARRANTY. Seller represents and warrants that:
12.1 it is fully authorized to enter into this Agreement and to
perform hereunder;
12.2 this Agreement constitutes its legal, valid and binding
obligation; and
12.3 Seller is solvent and in good standing in the State of its
organization.
13. DEFAULT.
13.1 EVENTS OF DEFAULT. The following events will constitute an
Event of Default hereunder: (a) Seller defaults in the payment of any
Obligations or in the performance of provision hereof or of any other agreement
now or hereafter entered into with Purchaser, or any warranty or representation
contained herein proves to be false in any material respect, (b) Seller or any
guarantor of the Obligations becomes subject to any debtor-relief proceedings,
(c) any such guarantor fails to perform or observe any of such Guarantor's
obligations to Purchaser or shall notify Purchaser of its intention to rescind,
modify, terminate or revoke any guaranty of the Obligations, or any such
guaranty shall cease to be in full force and effect for any reason whatever,
(d) Purchaser for any reason, in good faith, deems itself insecure with respect
to the prospect of repayment or performance of the Obligations.
13.2 WAIVER OF NOTICE. SELLER WAIVES ANY REQUIREMENT THAT PURCHASER
INFORM SELLER BY AFFIRMATIVE ACT OR OTHERWISE OF ANY ACCELERATION OF SELLER'S
OBLIGATIONS HEREUNDER. FURTHER, PURCHASER'S FAILURE TO CHARGE OR ACCRUE
INTEREST OR FEES AT ANY "DEFAULT" OR "PAST DUE" RATE SHALL NOT BE DEEMED A
WAIVER BY PURCHASER OF ITS CLAIM THERETO
13.3 EFFECT OF DEFAULT.
13.3.1 Upon the occurrence of any Event of Default, in
addition to any rights Purchaser has under this Agreement or applicable law,
Purchaser may immediately terminate this Agreement, at which time all
Obligations shall become immediately become due and payable without notice.
13.3.2 The Late Charge shall accrue and be payable on demand
on any Obligation not paid when due.
14. ACCOUNT STATED. Purchaser shall render to Seller a statement setting
forth the transactions arising hereunder. Each statement shall be considered
correct and binding upon Seller as an account stated, except to the extent that
Purchaser receives, within sixty (60) days after the mailing of such statement,
written notice from Seller of any specific exceptions by Seller to that
statement, and then it shall be binding against Seller as to any items to which
it has not objected.
15. WAIVER. No failure to exercise and no delay in exercising any right,
power, or remedy hereunder shall impair any right, power, or remedy which
Purchaser may have, nor shall any such delay be construed to be a waiver of any
of such rights, powers, or remedies, or any acquiescence in any breach or
default hereunder; nor shall any waiver by Purchaser of any breach or default by
Seller hereunder be deemed a waiver of any default or breach subsequently
occurring. All rights and remedies granted to Purchaser hereunder shall remain
in full force and effect notwithstanding any single or partial exercise of, or
any discontinuance of action begun to enforce, any such right or remedy. The
rights and remedies specified herein are cumulative and not exclusive of each
other or of any rights or remedies which Purchaser would otherwise have. Any
waiver, permit, consent or approval by Purchaser of any breach or default
hereunder must be in writing and shall be effective only to the extent set forth
in such writing and only as to that specific instance.
16. EFFECTIVE DATE; TERMINATION. This Agreement will be effective when
accepted by Purchaser and will continue in full force and effect until the
Scheduled Termination Date. Seller or Purchaser may terminate this Agreement
prior to the Scheduled Termination Date at any time upon ten (10) days notice.
Upon termination by Seller prior to the Scheduled Termination Date, Seller shall
pay the Obligations to Purchaser.
17. AMENDMENT. Neither this Agreement nor any provisions hereof may be
changed, waived, discharged or terminated, nor may any consent to the departure
from the terms hereof be given, orally (even if supported by new consideration),
but only by an instrument in writing signed by all parties to this Agreement.
Any waiver or consent so given shall be effective only in the specific instance
and for the specific purpose for which given.
18. NO LIEN TERMINATION WITHOUT RELEASE. In recognition of the
Purchaser'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 Seller, Purchaser shall not be required to
record any terminations or satisfactions of any of Purchaser's liens on the
Collateral unless and until Seller has executed and delivered to Purchaser a
general release in a form reasonably satisfactory to Purchaser. SELLER
UNDERSTANDS THAT THIS PROVISION CONSTITUTES A WAIVER OF ITS RIGHTS UNDER
SECTION9-404 OF THE UCC.
19. CONFLICT. Unless otherwise expressly stated in any other agreement
between Purchaser and Seller, if a conflict exists between the provisions of
this Agreement and the provisions of such other agreement, the provisions of
this Agreement shall control.
20. SURVIVAL. All representations, warranties and agreements herein
contained shall be effective so long as any portion of this Agreement remains
executory.
21. SEVERABILITY. In the event any one or more of the provisions
contained in this Agreement is held to be invalid, illegal or unenforceable in
any respect, then such provision shall be ineffective only to the extent of such
prohibition or invalidity, and the validity, legality, and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
22. ENFORCEMENT. This Agreement and all agreements relating to the
subject matter hereof are the product of negotiation and preparation by and
among each party and its respective attorneys, and shall be construed
accordingly.
23. RELATIONSHIP OF PARTIES. The relationship of the parties hereto shall
be that of Seller and Purchaser of accounts, and neither party is or shall be
deemed a fiduciary of or to the other.
24. ATTORNEYS FEES. Seller agrees to reimburse Purchaser on demand for:
24.1 The actual amount of all costs and expenses, including attorneys'
fees, which Purchaser has incurred or may incur in:
24.1.1 Negotiating, preparing, or administering this Agreement
and any documents prepared in connection herewith, all of which shall be paid
contemporaneously with the execution hereof;
24.1.2 Any way arising out of this Agreement;
24.1.3 Protecting, preserving or enforcing any lien, security
interest or other right granted by Seller to Purchaser or arising under
applicable law, whether or not suit is brought, including but not limited to the
defense of any Avoidance Claims;
24.2 The actual costs, including photocopying (which, if performed by
Purchaser's employees, shall be at the rate of $.10/page), travel, and
attorneys' fees and expenses incurred in complying with any subpoena or other
legal process attendant to any litigation in which Seller is a party;
24.3 The actual amount of all costs and expenses, including
attorneys' fees, which Purchaser may incur in enforcing this Agreement and any
documents prepared in connection herewith, or in connection with any federal or
state insolvency proceeding commenced by or against Seller, including those (i)
arising out the automatic stay, (ii) seeking dismissal or conversion of the
bankruptcy proceeding or (ii) opposing confirmation of Seller's plan thereunder.
Any such costs and expenses incurred subsequent to the execution hereof shall
become part of the Obligations when incurred and may be added to the outstanding
principal amount due hereunder.
25. ENTIRE AGREEMENT. This Agreement supersedes all prior or
contemporaneous agreements and understandings between said parties, verbal or
written, express or implied, relating to the subject matter hereof. No promises
of any kind have been made by Purchaser or any third party to induce Seller to
execute this Agreement. No course of dealing, course of performance or trade
usage, and no parole evidence of any nature, shall be used to supplement or
modify any terms of this Agreement.
26. CHOICE OF LAW. This Agreement and all transactions contemplated
hereunder and/or evidenced hereby shall be governed by, construed under, and
enforced in accordance with the internal laws of the State of Michigan.
27. JURY TRIAL WAIVER. IN RECOGNITION OF THE HIGHER COSTS AND DELAY WHICH
MAY RESULT FROM A JURY TRIAL, THE PARTIES HERETO WAIVE ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING HEREUNDER, OR
(B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE
PARTIES HERETO OR ANY OF THEM WITH RESPECT HERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY FURTHER WAIVES ANY RIGHT TO CONSOLIDATE ANY SUCH
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ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A
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JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED; AND EACH PARTY HEREBY AGREES AND
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CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
28. VENUE: JURISDICTION. The parties agree that any suit, action or
proceeding arising out of the subject matter hereof, or the interpretation,
performance or breach of this Agreement, shall, if Purchaser so elects, be
instituted in the United States District Court for the Eastern District of
Michigan or any court of the State of Michigan located in Oakland County (the
"Acceptable Forums"), each party agrees that the Acceptable Forums are
convenient to it, and each party irrevocably submits to the jurisdiction of the
Acceptable Forums, irrevocably agrees to be bound by any judgment rendered
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thereby in connection with this Agreement, and waives any and all objections to
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jurisdiction or venue that it may have under the laws of the State of Michigan
or otherwise in those courts in any such suit, action or proceeding. Should
such proceeding be initiated in any other forum, Seller waives any right to
oppose any motion or application made by Purchaser as a consequence of such
proceeding having been commenced in a forum other than an Acceptable Forum.
29. NOTICE.
29.1 All notices required to be given to any party other than
Purchaser shall be deemed given upon the first to occur of (i) two (2) business
days' deposit thereof in a receptacle under the control of the United States
Postal Service, (ii) transmittal by electronic means to a receiver under the
control of such party; or (iii) actual receipt by such party or an employee or
agent of such party.
29.2 All notices required to be given to Purchaser hereunder shall be
deemed given upon actual receipt by a responsible officer of Purchaser.
29.3 For the purposes hereof, notices hereunder shall be sent to the
following addresses, or to such other addresses as each such party may in
writing hereafter indicate:
SELLER
ADDRESS: 000 Xxxx Xxxxxxx
Xxxxxxx, XX 00000
OFFICER: XXXX XXXXXX
FAX NUMBER: 000-000-0000
PURCHASER
ADDRESS: 0000 X. Xxxx Xxxx Xxxx, Xxxxx 000
Xxxx, XX 00000
OFFICER: Xxxxxx X. Xxxxxxxxx
FAX NUMBER: 000-000-0000
30. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if all
signatures were upon the same instrument. Delivery of an executed counterpart
of the signature page to this Agreement by facsimile shall be effective as
delivery of a manually executed counterpart of this Agreement, and any party
delivering such an executed counterpart of the signature page to this Agreement
by facsimile to any other party shall thereafter also promptly deliver a
manually executed counterpart of this Agreement to such other party, provided
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that the failure to deliver such manually executed counterpart shall not affect
the validity, enforceability, or binding effect of this Agreement.
IN WITNESS WHEREOF, the Parties have executed this agreement on the day and
year first above written.
SELLER: PURCHASER:
GENROCO, INC., GREENFIELD COMMERCIAL CREDIT, L.L.C.,
a Wisconsin corporation a Michigan limited liability corporation
By:/s/ Xxxx X. Pick By:
------------------------------ ---------------------------------
Xxxxxx X. Xxxxx
Its: Its: Loan Officer
