Exhibit 10.13
FACTORING AGREEMENT
XXXXXXXXX & XXXXXXXXX, Inc.
0000 Xxxxxxxx
Xxx Xxxx, X.X. 00000
Xxx Xxxx, Xxx Xxxx July 12, 1995
Jazz Photo Corp.
0000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
THE FOLLOWING IS THE AGREEMENT UNDER WHICH WE ARE TO ACT AS YOUR SOLE FACTOR:
1. You hereby sell and assign to us, making us absolute owner thereof, all
of your accounts, contract rights, and all other obligations to you, now
existing or hereafter arising, for the payment of money arising out of the sale
of goods or rendition of services ("receivables"), together with all proceeds
thereof, all security and guarantees therefor, and all of your rights to any
goods and property represented thereby. We shall have all the rights of an
unpaid seller of any goods, the sale of which gives rise to each receivable,
including the right of stoppage in transit, reclamation and replevin. Upon each
sale of goods or rendition of services, you shall execute and deliver to us such
further and confirmatory assignments of your receivables as we require, in form
and manner satisfactory to us, together with copies of invoices and all shipping
or delivery receipts and such other proof of sale and delivery or performance as
we from time to time may require. You will make appropriate notations upon your
books and ledgers indicating the sale and assignment of your receivables to us.
All invoices or other statements to customers evidencing receivables shall be
mailed at your expense whether mailed by you or at our options by us and shall
clearly state in a manner satisfactory to us that such receivables has been
assigned to us and is payable to us only.
2. Before accepting or filling any order from any customer, the amount and
terms of sale are to be submitted to us for our credit approval, which approval
must be in writing and shall be limited to the specific terms and amounts
described therein. We reserve the right to withdraw such credit approval at any
time before delivery or performance and, in any event, a credit approval shall
be deemed to be withdrawn if full delivery or performance is not made within 30
days after the delivery or shipment date specified in the terms of sale
submitted for such approval, or, if no delivery or shipment date is specified,
within 30 days of the date of such credit approval. On sales approved and
accepted by us, we shall assume the credit risk, being responsible only for the
financial inability of your customers to pay at maturity, such assumption of
credit risk going into effect upon delivery or performance, and acceptance of
the goods or services by such customer, without dispute. We shall not be
responsible for any nonpayment of a receivable because of the assertion of any
claim or dispute by a customer or the exercise of any counterclaim or offset
(whether or not such claim, dispute, counterclaim or offset relates to the
specific receivable) or where nonpayment is a consequence of enemy attack, civil
commotion, the acts or restraint of public authorities, acts of God or force
majeure, or if any warranty made by you to us in respect of such receivables has
been breached. We shall have no liability of any kind for refusing to give or
for withdrawing credit approval pursuant to the terms of this Agreement, or for
exercising or refusing to exercise any rights or remedies we have under this
Agreement or otherwise. Any sale of goods or rendition of services made by you
which is not approved in writing by us as to credit shall be known as a C.R.
(Client's risk) receivable. All such C.R. receivables assigned to and purchased
by us are with full recourse to you and at your credit risk, but are otherwise
subject to the covenants, terms and conditions provided herein in respect of
approved receivables on which we have assumed the credit risk. We shall have the
rights to charge back to your account the amount of such C.R. receivables at any
time either before or after their maturity and you agree to pay us upon demand
the amount thereof, together with all expenses including collection charges and
other collection and attorney's fees incurred by us up to the date of such
payment in attempting to collect or enforce any such payment and in attempting
to collect or enforce any such receivable. In no event shall we have any credit
risk on any receivable, whether or not approved by us, if the net amount of such
receivable is less than $250.00.
3. Any goods rejected or returned by any customer shall be our property
held by you in trust for us separate and apart from any other goods, and upon
demand shall forthwith be delivered to us or disposed of by you at our direction
and without charge to us. You shall report to us in writing all disputes and
claims made by your customers, and the return of or offer to return any goods,
and you will promptly settle all such claims and disputes at your expense. As
absolute owner of each receivable, we may in our sole discretion enforce, effect
any compromise, settle and adjust any receivable, in our name or yours, without
affecting or limiting your obligation to us under this Agreement, and whether or
not any such receivable shall have been charged back. We reserve the right at
any time to charge back to your account the full amount of the receivable
involved in any claim, dispute or return asserted by your customer, and you
agree to pay us upon demand the full amount thereof. The charge back to your
account of the amount of any receivable shall not be deemed a reassignment
thereof to you and title thereto, to the proceeds thereof, to all security and
guarantees therefor and to your interest in the goods represented thereby, shall
remain in us. You shall indemnify us for, and hold us harmless against, any
loss, liability, claim or expense of any kind arising from any claims of, or
dispute with, your customer as to terms, price, quality, or otherwise, with
respect to receivables, including any claim for a return of any payments
thereunder.
4. If any checks, drafts, notes acceptances, cash collections or payments
in any form shall be received by you on receivables, you will immediately
transmit and deliver them to us in the identical form received. You agree that
we and any such person or entity as we may from time to time designate, shall
have the right to sign and/or endorse your name on all remittances and all
papers, bills of lading, receipts, instruments and documents relating to the
receivables and the transactions between us. We shall have the right to deposit
any checks or other remittances received on receivables regardless of notations
or conditions placed thereon by your customers or deductions reflected thereby
and to charge the amount of any such deductions to your account.
5. As to each receivable assigned to us, you hereby warrant that: (i) it
is a bona fide existing obligation created by the sale and actual delivery of
goods or the rendition of services to customers in the ordinary course of
business, which you then own free of liens and encumbrances, and which is then
unconditionally owing to you without defense, offset or counterclaim; and(ii)
the customers have received and will accept the goods and services, and the
invoices therefor, without dispute or claim of any kind. You hereby warrant that
you are solvent, that you have full right and authority to sell and assign to us
and to grant to us a security interest in your receivables, that you have not
granted a security interest therein or in any of your inventory, other than to
us, at any time during the term of this Agreement and until the security
interests granted hereunder have been terminated. You further represent and
warrant that your name, place of business, chief executive office and location
of your books and records relating to your receivables is as you are addressed
above and you agree to notify us promptly of any change in such or in your
corporate or business structure.
6. (a) For our services hereunder, we shall receive a factoring commission
equal to 1.125% of the invoice amount of each receivable, less selling discounts
(at our option, calculated on shortest terms), which commission shall be due and
payable by you as at the date a receivable arises, and shall then be chargeable
to your account with us.
(b) Our charge specified in paragraph 6(a) hereof is based upon
maximum selling terms of sixty (60) days, and no more extended terms or
additional dating shall be granted by you to any customer without our prior
written approval. When such approval is given by us, our charge with respect to
the receivables covered thereby shall by increased twenty-five percent (25%),
provided that the minimum increase shall be one quarter of one percent (.25%)
for each additional 30 days or portion thereof of extended terms or additional
dating.
(c.) Amounts taken by customers for anticipation at an annual rate
in excess of two (2%) percent under the Prime Rate (as defined in paragraph 7
(b) hereof) shall be charged to your account.
(d) The minimum factoring commission on each invoice in respect of
any receivable shall be $5.00.
(e) The minimum aggregate monthly factoring commissions payable
under this Agreement shall be $2,000 but not less than $24,000 in the aggregate
per contract year, which to the extent of any deficiency (after giving effect to
commissions payable and other charges under the foregoing subparagraphs), shall
be chargeable to your account with us on a monthly basis.
(f) Should we open letters of credit or issue guarantees for your
account, we shall receive a commission equal to 0.5% of the face amount of such
letters of credit or guarantees plus an additional 0.25% for each 30 days or
portion thereof that the letter of credit (or any resulting acceptance) or
guarantee remains open and unpaid plus preparation fees and bank charges.
7. (a) The purchase price for each receivable shall be the invoice amount
of the receivable, less returns (whenever made), less all selling discounts (at
our option, calculated on shortest terms) and credits or deductions of any kind
allowed or granted to or taken by the customer at any time, and less our
commission provided for herein. No discount, credit or allowance with respect to
the receivables shall be granted by you to any customer, and no return of goods
shall be accepted
by you without our prior written consent. A discount, credit or allowance may be
claimed only by the customer. All amounts collected against the receivables
shall be credited to your account adding ten (10) banking days for collection
and clearance of remittances.
(b) If you require funds from time to time, we will advance to you,
at our discretion, up to seventy percent (70%) of the net amount of receivables
purchased by us and not as yet collected. You will be charged with interest on
all sums paid, advanced or charged to you at a rate equal to eleven and one
quarter percent (11.25%) per annum upon the average daily debt cash balance in
your account. That portion of advances made by us to you which is in excess of
the above stated percentage of your receivables shall bear interest at a per
annum rate which is 3% in excess of such interest rate. The rates of interest
and discount provided for in this paragraph 7 shall be increased or decreased by
three-tenths of one percent (3/10ths of 1%) per annum for each increase or
decrease respectively of one quarter of one percent (1/4 of 1%) per annum that
is hereafter made in the prime rate of The Chase Manhattan Bank (National
Association) as announced by such Bank from time to time ("Prime Rate"), such
change to become effective when and as the Prime Rate shall change, provided
that at no time shall such percentage interest or discount rate be less than
2.5% per annum above the Prime Rate. Notwithstanding the foregoing, in no event
shall the rate of interest agreed to by or charged to you hereunder exceed the
maximum rate of interest permitted to be so agreed or charged under the law of
the jurisdiction whose laws are applicable to such rate of interest. We shall
have the privilege of remitting to you at any time any amount standing to your
credit on our books. The present Prime Rate is 8.75% per annum.
(c) About fifteen (15) days after the end of each month, we will
render to you a statement with respect to the receivables purchased by us in the
previous month, together with advances and charges made to your account under
this Agreement. In addition to any other amounts chargeable to your account,
your account shall be charged with our expenses consisting of postage on
invoices, bank wire and similar charges and in addition all expenses and costs
from time to time hereafter incurred by us during the course of periodic
examinations of your books and records, and operations, plus a per diem charge
at the rate of $500 per person, per day, for our examiners, in the field and
office. All statements, reports or accountings rendered or issued by us to you
shall be deemed accepted and be finally conclusive and binding upon you unless
you notify us to the contrary by registered or certified mail within thirty (30)
days after the date such statement, report or accounting is sent to you.
8. As collateral security for any and all of your (and your subsidiaries
and affiliates) indebtness and obligations to us and to each of our subsidiaries
and affiliates, whether matured or unmatured, absolute or contingent, now
existing or that may hereafter arise (including under indemnity or reimbursement
agreements or by subrogation), and howsoever acquired by us, whether arising
directly between us or acquired by us by assignment, whether relating to this
Agreement or independent hereof, including all obligations incurred by you to
any other concern factored or financed by us (collectively, the "Obligations"),
you grant to us a security interest in all of your accounts, contract rights and
general intangibles (whether or not specifically assigned to us), now existing
and hereafter arising, and in the proceeds thereof, any security and guarantees
therefor, in the goods and property represented thereby, in all of your books
and records relating to the foregoing, in all sum of money at any time to your
credit with us, all your present and future claims against us under or in
connection with this Agreement and any of your property at any time in our
possession. All Obligations shall be due and payable on demand, and you hereby
irrevocably authorize and direct us to charge at any time to your account any
Obligations, and to pay any Obligations owing to any of our subsidiaries or
affiliates by so charging at any time to your account. You agree to execute
financing statements and any and all other instruments and documents that may
now or hereafter be provided for by the Uniform Commercial Code or other law
applicable thereto reflecting the security interests granted to us hereunder.
You authorize us to file such financing statements without your signature,
signed only by us as a secured party, to reflect the security interests granted
to us hereunder. You shall be liable for, and we may charge your account with,
all costs and expenses of filing such statements (including any filing or
recording taxes), the making of lien searches, and any attorney's fees which may
be incurred by us in protecting, preserving and enforcing our security interests
and rights hereunder.
9. This Agreement shall commence on the date hereof, and shall continue
until July 31, 1996, and automatically from year to year thereafter, unless you
give us notice in writing, by registered or certified mail, sixty days prior to
the expiration of the original term of this Agreement (or any renewal term
thereof), of your intention to terminate this Agreement as at the end of such
term, with the understanding that we may terminate this Agreement at any time
upon thirty days notice to you by registered or certified mail. If you become
insolvent or become unable to meet your debts as they mature, or fail, suspend
or go out of business or apply for, consent to, or suffer the appointment of a
receiver, trustee or custodian (or similar person) for you or any of your
property, make an assignment for the benefit of creditors, or commence or become
the subject of a case or proceeding under any federal bankruptcy law, or if you
shall be in default under this Agreement or under any other agreement with us or
any Obligations to us, or if there is a change (by death or otherwise) in your
controlling stockholders or owners, then notwithstanding the foregoing, we shall
have the right to terminate this Agreement at any time without notice. Our
rights and your Obligations arising out of transactions having their inception
prior to the termination date shall not be affected by any termination or notice
thereof. Termination of this Agreement shall not become effective in respect of
the liens and security interests granted to us hereunder until you have fully
paid and discharged any and all of your Obligations to us, and you shall
continue to furnish confirmatory assignments and schedules of receivables
assigned to us and all proceeds in respect thereof. After the giving of any
notice of termination hereunder and until the full liquidation of your account
and the payment in full of all Obligations, you shall not be entitled to receive
any equities or payments from us, to the extent we are obligated to make
payments to you under this Agreement. From and after the effective date of
termination, all amounts charged or chargeable to your account hereunder, and
all your Obligations to us, shall become immediately due and payable without
further notice or demand.
10. This Agreement is deemed made in the State of New York and shall be
governed, interpreted and construed in accordance with the laws of the State of
New York. No modification, waiver or discharge of this Agreement shall be
binding upon us unless in writing and signed by us. If at any time we should
fail to exercise any right or remedy hereunder, it shall not constitute a waiver
on our part of exercising the same or any other right or remedy at any
subsequent time. If any taxes are imposed upon, or if we shall be required to
withhold or pay any tax or penalty because of or in connection with any
transactions between us under this Agreement, you agree to indemnity us and hold
us harmless in respect thereof. Trial by jury is hereby waived by each of us in
any action, proceeding or counterclaim brought by either of us against the other
on any matters whatsoever arising out of or in any way connected with this
Agreement or the relationship created hereby, and you hereby consent to the
jurisdiction of the Supreme Court of the State of New York (or the Civil Court
of the City of New York if such matters be within its jurisdiction), and of any
Federal Court in such State, for a determination of any dispute as to any such
matters. In connection therewith, you hereby waive personal service of any
summons, complaint or other process and agree that service thereof may be made
by registered or certified mail directed to you at your address set forth above,
or such other address as shall have previously been communicated to us by
registered or certified mail. Within thirty days after such mailing, you shall
appear to answer to such summons, complaint or other process. Should you fail to
appear or answer within said thirty-day period, you shall be deemed in default
and judgment may be entered by us against you for the amount as demanded in any
summons, complaint or other process so served. In the event we shall retain
counsel for the purpose of enforcing the performance, payment or collection of
any of the Obligations, then in that event you agree to pay the reasonable fees
of our counsel, the amount of which is hereby expressly fixed (to the extent
permitted by applicable law) at a sum that shall be equal to fifteen percent of
the Obligations plus any and all expenses and disbursements incurred in
connection therewith and/or incidental thereto. Our books and records shall be
admissable as prima facie evidence of the status of the account between us. This
Agreement shall be binding upon and inure to the benefit of each of us and our
respective heirs, executors, administrators, successors and assigns.
XXXXXXXXX & XXXXXXXXX, INC.
By: /s/ Xxxxx Xxxxxx
--------------------
Name and Title: Xxxxx Xxxxxx, Exec. Vice Pres.
The foregoing is acknowledged,
accepted and agreed to:
Jazz Photo Corp.
By: /s/ [ILLEGIBLE]
---------------
RE: FACTORING AGREEMENT
It is mutually agreed that the above mentioned agreement between us shall be
amended as hereafter provided:
The following is hereby added to the last sentence of Paragraph 6(a):
"... except for those receivables due from a customer (or any affiliates
or subsidiaries thereof) listed on the Special Accounts Schedule submitted
herewith and/or from time to time hereafter (by certified mail) for which
the commission on paid receivables shall be increased by an amount equal
to the surcharge set forth on the said Special Accounts Schedule to the
extent of the amount credit approved."
The foregoing amendment shall be effective as of July 12, 1995.
In all other respects the terms and conditions of the aforesaid agreement, as
the same may have heretofore been amended, shall remain unchanged.
XXXXXXXXX & XXXXXXXXX, INC.
By: /s/ [ILLEGIBLE] Sr VP
-------------------------------
THE FOREGOING IS ACKNOWLEDGED AND AGREED TO:
JAZZ PHOTO CORP.
By: /s/ [ILLEGIBLE]
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SPECIAL ACCOUNT SCHEDULE
1% SURCHARGE
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XXXX DEPARTMENT STORES INC.
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X.X. XXXXXXX COMPANY
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CALDOR INC.
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BROADWAY STORES INC.
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XxXXXXX CORP. -D.I.P.
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BRADLESS, INC.
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SPECIAL ACCOUNT SCHEDULE
2% Surcharge
================================================================================
XXXXXX XXX COMPANIES DIP
SASSCO division
XXXXXXXXXX CORP. subsidiary
PIECE GOODS SHOPS COMPANY L.P. DIP
BILLS DOLLAR STORES INC. DIP
JAMESWAY CORP. DIP
ROSES STORES INC, DIP
BRADLEES INC. DIP
MERRY GO ROUND ENTERPRISES, INC. DIP
SOLO SERVE CORP. DIP
XXXXXXXX & XXXXXXX INC. DIP
NO NAME STORES INC. DIP
FINES MENS SHOPS INC. DIP
XXX XXXXXX INC. DIP
WEINER STORES INC. DIP
Rev. 06/28/95
New York, New York July 12, 1995
Xxxxxxxxx & Xxxxxxxxx, Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
We do hereby agree that the Factoring Agreement between us dated July 12, 1995,
be and the same hereby is amended and supplemented by adding thereto the
following clauses:
We hereby pledge, assign, consign, transfer and set over to you, and you
shall at all times have a continuing general lien upon, and we hereby grant you
a continuing security interest in, all of our Inventory and the proceeds
thereof. "Inventory" shall include but not be limited to raw materials, work in
process, finished merchandise and all wrapping, packing and shipping materials,
wheresoever located, now owned or hereafter acquired, presently existing or
hereafter arising, and all additions and accessions thereto, the resulting
product or mass and any documents representing all or any part thereof. Upon
your request, we will at any time and from time to time, at our expense, deliver
such Inventory to you or such person as you may designate, cause the same to be
stored in your name at such place as you may designate, deliver to you documents
of title representing the same or otherwise evidence your security interest in
such manner as you may require.
The aforesaid pledge, assignment, consignment, transfer, lien and security
interest shall secure any and all of our obligations to you, matured or
unmatured, absolute or contingent, now existing or that may hereafter arise, and
howsoever acquired by you, whether arising directly between us or acquired by
you by assignment and whether relating to this agreement or independent hereof,
together with all interest, charges, commissions, expenses, attorneys' fees and
other items chargeable against us in connection with any of said obligations.
We agree, at our expense, to keep all Inventory insured to the full value
thereof against such risks and by policies of insurance issued by such companies
as you may designate or approve, and the policies evidencing such insurance
shall be duly endorsed in your favor with a long form lender's loss payable
rider or such other document as you may designate and said policies shall be
delivered to you. Should we fail for any reason to furnish you with such
insurance, you shall have the right to effect the same and charge any costs in
connection therewith to us. You shall have no risk, liability or responsibility
in connection with payment or nonpayment of any loss, you sole obligation being
to credit our account with the net proceeds of any such insurance payments
received on account of any loss. Any and all assessments, taxes or other charges
that may be assessed upon or payable with respect to the Inventory or any part
thereof shall forthwith be paid by us, and we agree that you, in your
discretion, may effect such payment and charge the amount thereof to us. We
further agree that except for the pledge, assignment, consignment, transfer,
lien and security interest granted to you hereby, we shall not permit said
Inventory to otherwise become liened or encumbered nor shall we grant any
security interest therein to any other party. We shall not, without your written
consent first obtain, remove or dispose of any of such Inventory except to bona
fide purchasers thereof in the ordinary course of our business on orders first
approved in writing by you. All such sales shall be reported to you promptly and
the accounts or other proceeds thereof shall be subject to the security
interests in your favor. You shall have the right at all times to the immediate
possession of all Inventory and its products and proceeds and we shall make such
Inventory and all our records pertaining thereto available to you for inspection
at any time requested by you. You shall have the right, in your discretion, to
pay any liens or claims upon said Inventory, including, but not limited to,
warehouse charges, dyeing, finishing and processing charges, landlords' claims,
etc. and the amount of any such payment shall be charged to our account and
secured hereby. You shall not be liable for the safekeeping of any of the
Inventory or for any loss, damage or diminution in the value thereof or for any
act or default of any warehouseman, carrier or other person dealing in and with
said Inventory, whether as your agent or otherwise, or for the collection of any
proceeds thereof but the same shall at all times be at our sole risk.
Prior to its sale to a bona fide purchaser in the ordinary course of
business, Inventory shall at all times remain at our address specified below and
shall not be removed therefrom without your prior written consent.
Upon our default in the payment, performance or discharge of any of our
obligations and liabilities to you as and when the same become due, or in the
event of our insolvency, or if a receiver or trustee is appointed for our assets
or affairs, or if we discontinue doing business, or if a petition in bankruptcy
or for arrangement or reorganization is filed by or against us, or if we make an
assignment for the benefit of our creditors, or suspend the operation of our
business or commence the liquidation thereof, or make any offer of settlement,
extension or composition with our creditors, or upon the appointment of a
committee of our creditors or a liquidating agent for us, or the issuance of any
attachment or execution against us, or the filing of a judgment or other lien
against us, or upon our any default hereunder or under any other agreement
between us, you shall have the right, upon reasonable notice to us, to sell all
or any part of our Inventory, at public or private sale, or make other
disposition thereof, at which sale or disposition you may be a purchaser. We
agree that written notice sent to us by postpaid mail, at least five days before
the date of any intended public sale or the date
after which any private sale or other intended disposition of the inventory is
to be made, shall be deemed to be reasonable notice thereof. We do hereby waive
all notice of any such sale or other intended disposition if said Inventory is
perishable or threatens to decline speedily in value or is of a type customarily
sold on a recognized market. Upon the occurrence of any of the events referred
to in the first sentence of this paragraph, you may require us to assemble all
or any part of the Inventory and make it available to you at a place to be
designated by you, which is reasonably convenient to both parties. In addition,
you may peaceably, by your own means or with judicial assistance, enter our or
any other premises and take possession of the Inventory and remove or dispose of
it on our premises and we agree that we will not resist or interfere with any
such action. We hereby expressly waive demand, notice of sale (except as herein
provided), advertisement of sale and redemption before sale. The net proceeds of
any such public or private sale or other disposition as far as needed shall be
applied toward the payment and discharge of any and all of our obligations to
you, together with all interest thereon and all reasonable costs, charges,
expenses and disbursements in connection therewith, including the reasonable
fees of your attorneys, the amount of which is hereby expressly fixed at a sum
which shall be equal to fifteen percent of our then obligations to you,
rendering any surplus remaining to us, we, of course, to continue liable should
there be any deficiency.
This agreement is deemed made in the State of new York and is to be
governed, interpreted and construed in accordance with the laws of the State of
New York. No modification, waiver or discharge of this agreement shall be
binding upon you unless in writing, signed and subscribed by you. If you should
at any time fail to exercise any right or privilege hereunder, the same shall
not constitute a waiver on your part of exercising any right or privilege at any
subsequent time. If any taxes are imposed or if you shall be required to
withhold or pay any tax because of any transactions between us, we agree to
indemnify you and hold you harmless in respect thereto. It is agreed between us
that trial by jury is hereby waived in any action, proceeding or counterclaim
brought by either of us against the other on any matters whatsoever arising out
of or in any way connected with this agreement or our relationship created
hereby and we hereby consent to the jurisdiction of the Supreme Court of the
State of New York for a determination of any dispute as to any such matters and
authorize the service of process on us by registered mail sent to us at our
address hereinbelow set forth.
This agreement shall constitute a security agreement pursuant to the
Uniform Commercial Code and, in addition to any and all of your other rights
hereunder, you shall have all of the rights of a secured party pursuant to the
provisions of the Uniform Commercial Code. We agree to execute a financing
statement and any and all other instruments and documents that may now or
hereafter be provided for by the Uniform Commercial Code or other law applicable
thereto, reflecting the security interests granted to you hereunder. We do
hereby authorize you to file a financing statement without our signature, signed
only by you as secured party, to reflect the security interests granted to you
hereunder.
Very truly yours,
JAZZ PHOTO CORP.
By: [ILLEGIBLE]
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0000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000
OFFICERS' CERTIFICATE
The undersigned, President and Secretary of JAZZ PHOTO CORP., a
corporation duly organized and validly existing under the laws of the State of
New Jersey, DO HEREBY CERTIFY that the following is a true copy of certain
resolutions duly and unanimously adopted at a meeting of the Board of Directors
and shareholders of said corporation, duly called and held on July 12, 1995, at
which a quorum was present and voting throughout, and which are not in conflict
with the Certificate of Incorporation, By-Laws, rules and regulations of said
corporation, and which resolutions have not been modified or rescinded and are
still in full force and effect:
"WHEREAS, this corporation proposes to enter into a factoring agreement
with Xxxxxxxxx & Xxxxxxxxx, Inc. ("Xxxxxxxxx") pursuant to which this
corporation will sell and assign to Xxxxxxxxx all of its receivables (as
defined therein), and will grant to Xxxxxxxxx a security interest in, a
continuing lien upon and right of set-off against, and will assign,
transfer, pledge and set over to Xxxxxxxxx, all of its accounts, contract
rights, general intangibles and instruments, and certain other personal
property of this corporation (herein collectively referred to as
"collateral"), and the form of such factoring agreement having been
submitted to and duly considered at this meeting, and the execution and
delivery thereof having been deemed to be in the best interest of this
corporation; now, therefore, be it:
"RESOLVED, that any one or more of the officers of this corporation be,
and they each hereby are, authorized, directed and empowered, in the name
and on behalf of this corporation: to enter into, execute and deliver to
Xxxxxxxxx a factoring agreement substantially in the form submitted to
this meeting, with such changes as said officer or officers may consider
appropriate, the execution and delivery thereof being deemed conclusive
evidence of this corporation's approval of the terms thereof; from time to
time, to sell and assign to Xxxxxxxxx the receivables, and to borrow money
and obtain advances and other financial accommodations from Xxxxxxxxx, in
such amounts and upon such terms and conditions as said officer or
officers may consider appropriate, and to grant a security interest in, a
continuing lien upon and right of set-off against, and assign, transfer,
pledge and set over to Xxxxxxxxx, the collateral, now existing or
hereafter arising, pursuant to the terms of said factoring agreement, or
otherwise; to execute and deliver one or more promissory notes or other
evidences of indebtedness, financing statements, supplementary agreements,
assignments, schedules, transfers, notices, contracts, subordination
agreements, guarantees, designations, consignments and other instruments
and documents in connection with the factoring agreement, as amended or
supplemented from time to time (including the grant of additional liens
and security interests in such personal property and/or real property of
this corporation as may be requested by Xxxxxxxxx pursuant to any such
supplement), containing and upon such terms as said officer or officers
may consider appropriate, the execution and delivery thereof being deemed
conclusive evidence of this corporation's approval of the terms thereof;
to make remittances and payments by checks, drafts or otherwise; to adopt
a facsimile printed or rubber stamp signature for the purpose of
expediting the terms of the factoring agreement; and to execute and
deliver such further documents and to perform such other acts as may be
necessary or desirable to effectuate the foregoing resolution; and all
such action of said officer or officers shall be taken as the action of,
and is hereby authorized, ratified, approved and confirmed by, this
corporation and the board of directors thereof; and it is further
"RESOLVED, that this corporation hereby authorizes and empowers Xxxxxxxxx
from time to time to endorse by rubber stamp or otherwise the name of this
corporation on any and all checks, drafts or other orders for the payment
of money or written evidences of debt, which may be made or be in form
payable to this corporation, and which may come into the possession of
Xxxxxxxxx and to deposit such items in Xxxxxxxxx'x account with any other
bank, banker or trust company and further authorizes Xxxxxxxxx to deal
absolutely with any such items as the property of Xxxxxxxxx and to do and
perform any and all such other acts as may be necessary or proper to
constitute any and all such items the property of Xxxxxxxxx without
requiring the signature or signatures of any officer or officers of this
corporation; and it is further
"RESOLVED, that until Xxxxxxxxx receives notice in writing by registered
mail of any changes or limitations of authority of any officers of this
corporation, it is authorized to rely upon the authority and power set
forth in these resolutions."
The undersigned DO FURTHER CERTIFY that the Certificate of Incorporation
and By-Laws of this corporation contain no requirement for shareholder approval
or consent to the execution of the factoring agreement or the consummation of
any of the transactions referred to in the foregoing resolutions.
IN WITNESS WHEREOF, we have hereunto set our hands and affixed the seal of
the corporation this July 12, 1995.
______________________________
President
/s/ Xxx Xxxxxxxxx
------------------------------
Secretary
[Corporate Seal]
CERTIFICATE AS TO OFFICERS, DIRECTORS, STOCKHOLDERS AND AUTHORIZED SIGNATURES OF
Jazz Photo Corp.
We, the undersigned
Xxxx Xxxxx, President
Xxxx Xxxxx, Secretary
of Jazz Photo Corp., a corporation organized and existing under and by virtue of
the laws of the state of New Jersey, having its principal office at 0000
Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000, do hereby certify as follows:
1. The names and residence addresses of all of the officers of Jazz Photo Corp.
are as follows:
NAME OFFICE RESIDENCE ADDRESS
Xxxx Xxxxx President 00 Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000
Xxx Xxxxxxxxx Secretary
2. The names and residence addresses of all of the directors of Jazz Photo Corp.
are as follows:
NAME OFFICE RESIDENCE ADDRESS
Xxxx Xxxxx President 00 Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000
Xxx Xxxxxxxxx
3. The names and residence addresses of the stockholders owning and holding all
the issued and outstanding stock of Jazz Photo Corp. are as follows:
NAME RESIDENCE ADDRESS NO. OF SHARES CLASS OF
SHARES
Xxxx Xxxxx 00 Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, XX 100% Common
07711
4. That pursuant to the by-laws, resolutions and minutes of Jazz Photo Corp.,
the persons authorized and empowered to make, sign and endorse on behalf of Jazz
Photo Corp., any and all documents, checks, notes, drafts, trade acceptances and
other negotiable papers or instruments, are as follows:
NAME* OFFICE
Xxxx Xxxxx President
*Indicate whether the above persons may sign alone or jointly
5. The names of the persons authorized to make, sign and deliver on behalf of
Jazz Photo Corp., schedules of assignments of accounts and/or any other
instruments of assignment to XXXXXXXXX & XXXXXXXXX, INC., are as follows:
NAME* OFFICE
Xxxx Xxxxx President
Joy Stabitsky Assistant to President
*Indicate whether the above persons may sign alone or jointly
6. The following are the actual signatures of the officers and other authorized
persons:
Xxxx Xxxxx /s/ Xxxx Xxxxx
--------------------------------
Xxxx Xxxxx ________________________________
Joy Stabitsky /s/ Xxx Xxxxxxxxx
--------------------------------
IN WITNESS WHEREOF, we have hereunto affixed our signatures as officers of Jazz
Photo Corp. and affixed the seal of Jazz Photo Corp. this July 12, 1995
Corp. Seal /s/ Xxxx Xxxxx
-------------------------------
Xxxx Xxxxx, President
/s/ Xxx Xxxxxxxxx
-------------------------------
Xxx Xxxxxxxxx - Secretary
GUARANTEE
New York, New York July 12, 1995
In order to induce Xxxxxxxxx & Xxxxxxxxx, Inc. (herein called "Xxxxxxxxx")
to enter into the foregoing agreement with, and/or to extend financial
accommodations from time to time, in the discretion of Xxxxxxxxx, to JAZZ PHOTO
CORP. (herein called "Obligor") and for other good and valuable considerations
received, the undersigned irrevocably and unconditionally guarantees to
Xxxxxxxxx payment when due, whether by acceleration or otherwise, of any and all
Obligations of the Obligor to Xxxxxxxxx. The term "Obligations" shall mean all
obligations, liabilities and indebtedness of the Obligor to Xxxxxxxxx or an
affiliate of Xxxxxxxxx, however evidenced, arising under this Agreement, under
any other or supplemental financing provided to the Obligor by Xxxxxxxxx or an
affiliate of Xxxxxxxxx, or independent hereof or thereof, whether now or
existing or incurred from time to time hereafter and whether before or after
termination hereof, absolute or contingent, joint or several, matured or
unmatured, direct or indirect, primary or secondary, liquidated or unliquidated,
and whether arising directly or acquired from others (whether acquired outright,
by assignment unconditionally or as collateral security from another and
including, without limitation, participations or interest of Xxxxxxxxx in
obligations of Obligor to others), and including (without limitation) all of
Xxxxxxxxx'x charges, commissions, fees, interest, expenses, costs and attorneys'
fees chargeable to Obligor in connection therewith. In addition, the undersigned
agrees to indemnify Xxxxxxxxx against any loss, damage or liability because of
an wrongful acts or fraud of the Obligor.
The undersigned waives notice of acceptance of this guarantee and notice of
any liability to which it may apply, and waives presentment, demand for payment,
protest, notice of dishonor or nonpayment of any Obligations, or suit or taking
other action by Xxxxxxxxx against, and any other notice to, any party liable
thereon (including the undersigned) and waives any defense, offset or
counterclaim to any liability hereunder. Xxxxxxxxx may at any time and from time
to time (whether or not after revocation or termination of this guarantee)
without the consent of, or notice to, the undersigned, without incurring
responsibility to the undersigned, without impairing or releasing the
obligations of the undersigned hereunder, upon or without any terms or
conditions and in whole or in part: (1) change the manner, place or terms of
payment, and/or change or extend the time of payment of, renew or alter, any
Obligation, any security therefor, or any liability incurred directly or
indirectly in respect thereof, and the guarantee herein made shall apply to the
Obligations as so changed, extended, renewed or altered; (2) sell, exchange,
release, surrender, realize upon or otherwise deal with in any manner and in any
order any property by whomsoever at any time pledged or mortgaged to secure, or
howsoever securing, the liabilities hereby guaranteed or any liabilities
(including any of those hereunder) incurred directly or indirectly in respect
thereof or hereof, and/or offset thereagainst; (3) exercise or refrain from
exercising any rights against the Obligor or others (including the undersigned)
or otherwise act or refrain from acting; (4) settle or compromise any
Obligation, any security therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of the Obligor to creditors of the Obligor other
than Xxxxxxxxx and the undersigned; and (5) apply any sums by whomsoever paid or
howsoever realized to any Obligation to Xxxxxxxxx regardless of what liability
or liabilities of the Obligor remain unpaid.
No invalidity, irregularity or unenforceability of all or any part of the
liabilities hereby guaranteed or of any security therefor shall affect, impair
or be a defense to this guarantee. The liability of the undersigned hereunder is
primary and unconditional and shall not be subject to any offset, defense or
counterclaim of the Obligor. This guarantee is a continuing one and all
liabilities to which it applies or may apply under the terms hereof shall be
conclusively presumed to have been created in reliance hereon. The books and
records of Xxxxxxxxx shall be admissible as prima facie evidence of the
Obligations. As to each of the undersigned, this guarantee shall continue until
written notice of revocation signed by such undersigned, or until written notice
of the death of such undersigned shall in each case have been actually received
by Xxxxxxxxx, notwithstanding a revocation by, or the death of, or complete or
partial release for any cause of any one or more of the remainder of the
undersigned or of the Obligor, or of any one liable in any manner for the
liabilities hereby guaranteed, or for the liabilities (including those herein)
incurred directly or indirectly in respect thereof or hereof, and
notwithstanding the dissolution, termination or increase, decrease or change in
personnel of any one or more of the undersigned which may be partnerships or
corporations.
No revocation or termination hereof shall affect in any manner rights
arising under this guarantee with respect to (a) Obligations which shall have
been created, contracted, assumed or incurred prior to receipt by Xxxxxxxxx of
written notice of such revocation or termination or (b) Obligations which shall
have been created, contracted, assumed or incurred after receipt of such written
notice pursuant to any contract entered into by the Obligor or by Xxxxxxxxx for
the benefit of the Obligor prior to receipt by Xxxxxxxxx of such notice, or to
protect, preserve or realize upon any security for any Obligations; and the sole
effect of revocation or termination hereof shall be to exclude from this
guarantee liabilities thereafter arising which are unconnected with liabilities
theretofore arising or with transactions theretofore entered into.
Upon the happening of any of the following events: (i) the death or
insolvency of the Obligor or any of the undersigned, or (ii) suspension of
business of the Obligor or any of the undersigned, or (iii) the issuance of any
warrant of attachment against any of the property of the Obligor or any of the
undersigned, or (iv) the making by
the Obligor or any of the undersigned or any assignment custodian being
appointed for the Obligor or any of the undersigned or for any property of
either of them or (vi) any proceeding being commenced by or against the Obligor
or any of the undersigned under any bankruptcy, reorganization, arrangement of
debt, insolvency, readjustment of debt, receivership, liquidation or dissolution
law or statute - then and in any such event, at any time thereafter, Xxxxxxxxx
may, without notice to the Obligor or any of the undersigned, make the
Obligations, whether or not then due, immediately due and payable hereunder as
to any of the undersigned, and Xxxxxxxxx shall be entitled to enforce the
obligations of the undersigned hereunder. All sums of money at any time to the
credit of the undersigned with Xxxxxxxxx and any of the property of the
undersigned at any time in the possession of Xxxxxxxxx may be held by Xxxxxxxxx
as security for any and all obligations of the undersigned hereunder,
notwithstanding that any of said money or property may have been deposited,
pledged or delivered by the undersigned for any other, different or specific
purpose. Any and all claims of any nature which the undersigned may now or
hereafter have against the Obligor are hereby subordinated to the full payment
to Xxxxxxxxx of the Obligations and are hereby assigned to Xxxxxxxxx as
additional collateral security therefor.
In the event Xxxxxxxxx takes any action, including retaining attorneys,
for the purpose of effecting collection of the Obligations or of any liabilities
of the undersigned hereunder, or protecting any of Xxxxxxxxx'x rights hereunder,
the undersigned shall pay all costs and expenses of every kind for protection of
the rights of Xxxxxxxxx or for collection of the Obligations or such
liabilities, including reasonable attorneys' fees which the undersigned agrees
to be a sum equal to fifteen percent of the amount then due.
If claim is ever made upon Xxxxxxxxx for repayment or recovery of any
amount or amounts received by Xxxxxxxxx in payment or on account of any of the
Obligations and Xxxxxxxxx pays all or part of said amount by reason of (a) any
judgment, decree or order of any Court or administrative body having
jurisdiction over Xxxxxxxxx or any of its property, or (b) any settlement or
compromise of any such claim effected by Xxxxxxxxx with any such claimant
(including the Obligor), then and in such event the undersigned agrees that any
such judgment, decree, order, settlement or compromise shall be binding upon the
undersigned, notwithstanding any revocation or release hereof or the
cancellation of any note or other instrument evidencing any of the Obligations,
or any release of any such liability of the Obligor, and the undersigned shall
be and remain liable to Xxxxxxxxx hereunder for the amount so repaid or
recovered to the same extent as if such amount had never originally been
received by Xxxxxxxxx. The provisions of this paragraph shall survive, and
continue in effect, notwithstanding any revocation or release hereof, unless
such revocation or release shall specifically refer to this paragraph.
No delay on the part of Xxxxxxxxx in exercising any of its options, powers
or rights, or partial or single exercise thereof, shall constitute a waiver
thereof. No waiver of any of its rights hereunder, and no modification or
amendment of this guarantee, shall be deemed to be made by Xxxxxxxxx unless the
same shall be in writing, duly signed on behalf of Xxxxxxxxx, and each such
waiver, if any, shall apply only with respect to the specific instance involved
and shall in no way impair the rights of Xxxxxxxxx or the obligations of the
undersigned to Xxxxxxxxx in any other respect or at any other time. The
undersigned shall have no right (whether by contract or by operation of law) of
subrogation, restitution, indemnification, reimbursement or any other or similar
rights of a surety against the Obligor or any of its assets or property or any
security held for any liabilities of the Obligor, and all such rights are hereby
expressly waived.
This guarantee and the rights and obligations of Xxxxxxxxx and of the
undersigned hereunder shall be governed and construed in accordance with the
laws of the State of New York; and this guarantee is binding upon the
undersigned, his, her, their or its executors, administrators, successors or
assigns, and shall inure to the benefit of Xxxxxxxxx, its successors or assigns.
THE UNDERSIGNED AGREES AND DOES HEREBY WAIVE TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT AGAINST THE UNDERSIGNED OR ANY MATTERS
WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS GUARANTEE, AND THE
UNDERSIGNED HEREBY CONSENTS TO THE JURISDICTION OF THE SUPREME COURT OF THE
STATE OF NEW YORK FOR A DETERMINATION OF ANY DISPUTE AS TO ANY SUCH MATTERS AND
AUTHORIZES THE SERVICE OF PROCESS ON THE UNDERSIGNED BY REGISTERED MAIL SENT TO
THE UNDERSIGNED AT THE ADDRESS OF THE UNDERSIGNED HEREINBELOW SET FORTH.
Any acknowledgement, new promise, payment of principal or interest or
other act by the Obligor and others, with respect to the Obligations, shall be
deemed to be made as agent of the undersigned for the purposes hereof, and
shall, if the statute of limitations in favor of the undersigned against
Xxxxxxxxx shall have commenced to run, toll the running of such statute of
limitations, and if such statute of limitations shall have expired, prevent the
operation of such statute.
The undersigned, if more than one, shall be jointly and severally liable
hereunder and the term "undersigned" wherever used herein shall mean the
undersigned or any one or more of them. Any one signing this guarantee shall be
bound hereby, whether or not any one else signs this guarantee at any time. The
term "Xxxxxxxxx" includes any agent of Xxxxxxxxx acting for it.
Witness: /s/ [illegible] Signature /s/ Xxxx Xxxxx L.S.
--------------- ----------------------------------------
Name: Xxxx Xxxxx
Address: 00 Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000
Soc. Sec. No.: ###-##-####
XXXXX XX Xxx Xxxx XXXXXX XX Xxx Xxxx
Xx this 19 day of July, 1995, before me personally came Xxxx Xxxxx, to me
known and known to me to be the individual(s) described in, and who
executed the foregoing instrument, and acknowledged to me that (t)he(y)
executed the same.
/s/ [ILLEGIBLE]
-------------------------- XXXXX XXXXX
NOTARY PUBLIC, State of New York
No. 00-0000000
Qualified in New York County
Commission Expires 2/28/97
AGREEMENT OF SUBORDINATION AND ASSIGNMENT
In order to induce XXXXXXXXX & XXXXXXXXX, INC., a New York corporation
(hereinafter called "Lender"), its successors or assigns, from time to time to
make such advances, loans, discounts or purchase of accounts, assumption of
credit risks in respect to sales of goods or services, or other extensions of
credit, as it may deem advisable, directly or indirectly, to or for the account
of Jazz Photo Corp., a New Jersey corporation having a principal place of
business at 0000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000, its successors or assigns
(hereinafter called "Debtor"), or to others upon Debtor's obligations, or to
grant to or for the account of Debtor such renewals, extensions, forbearances,
releases of collateral or other relinquishments of legal rights as Lender may
deem advisable, and in consideration of advances, loans, discounts, extensions
of credit or other financial accommodations, due or to become due, whether
heretofore or hereafter made to Debtor and for other valuable consideration,
receipt of which is hereby duly acknowledged, Xxxxxxx Xxxxx (hereinafter called
"Creditor"), and who, if two or more in number, shall be jointly and severally
bound hereunder, hereby agrees that all claims and demands and all interest
accrued or that may hereafter accrue thereon which Creditor now has or may
hereafter have or acquire against Debtor are not to be payable, and that no
payment on account thereof, nor any security therefor, shall be received,
accepted or retained by Creditor unless and until Debtor has paid and satisfied
in full all its obligations to Lender of every kind and description, whether
direct or indirect, absolute or contingent, due or not due, secured or
unsecured, original, renewed or extended, now in existence or hereafter
incurred, and whether contracted by Debtor alone or jointly and/or severally
with another to others; and Debtor agrees not to make payment or to give any
security to Creditor except in conformity herewith. Creditor waives any and all
notice of the acceptance of this subordination or of the creation, modification,
renewal or extension or accrual of any obligations of Debtor to Lender, present
or future, or of the reliance of Lender upon this agreement. Creditor hereby
consents that, without notice to or further assent by Creditor, the liability of
Debtor or of any other party for or upon the obligations of Debtor to Lender may
from time to time, in whole or in part, be renewed, extended, modified,
prematured, compromised or released by Lender, as it may deem advisable, and
that any collateral, or lien or liens for sad obligations or any of them, may
from time to time, in whole or in part, be exchanged, sold, surrendered or
released by Lender, as it may deem advisable, all without impairing, abridging,
affecting or releasing the subordination contained in this agreement.
Creditor does hereby transfer and assign to Lender as collateral security
for any and all said obligations of Debtor to Lender, all of the said claims or
demands of Creditor against Debtor and all interest accrued or what may
hereafter accrue thereon, with the full and irrevocable right on the part of
Lender, in its own name or in the name of Creditor, to collect and enforce said
claims by suit, proof of debt in bankruptcy, or other liquidation proceedings or
any reorganization or arrangement, or otherwise and to vote the full amount of
said claims and demands in any such proceedings, reorganization or arrangement
for or against any proposal or resolution, for a trustee or trustees or for a
committee of creditors or for the acceptance or rejection of any proposed
arrangement, plan or reorganization, wage earners' plan, composition, settlement
or extension. Should any payment or distribution or security or proceeds thereof
be received by Creditor for or on account of any of said claims or demands,
prior to the satisfaction of all said obligations of Debtor to Lender, Creditor
will forthwith assign, endorse and deliver same to Lender, in precisely the form
received (except for Creditor's endorsement where necessary), for application on
account of Debtor's obligations to Lender, and until so delivered, same shall be
held in trust by Creditor as the property of Lender; in the event of the failure
of Creditor to endorse or assign any security or instrument for the payment of
money, so received by Creditor or payable to Creditor's order, Lender or any
officer or employee thereof is hereby irrevocably constituted and appointed
attorney-in-fact for Creditor, with full power to make any such endorsement or
assignment and with full power of substitution.
Creditor represents and warrants to Lender that Creditor is solvent and has
granted no security interest in and has made no prior transfer or assignment of
its claims or demands against Debtor; Creditor further covenants and agrees that
Creditor will grant no security interest in or transfer of (except to Lender)
its claims or demands no existing or hereafter arising against Debtor unless and
until the obligations of Debtor to Lender have been paid in full. Creditor and
Debtor represent to Lender that Debtor now owes Creditor the principal sum of
$175,000.00, without counterclaim, defense or offset. Creditor hereby agrees to
endorse to the order of Lender and deliver to Lender any note or other
instrument, which now or hereafter evidences any or all of its claims or demands
against Debtor, or, at the option of Lender, to xxxx prominently each such note
or instrument with a legend, referring to this agreement, in form and substance
satisfactory to Lender. Debtor and Creditor each agree, upon request of Lender,
to execute such further documents and
-2-
instruments, including without limitation, additional notes or negotiable
instruments, assignments, security agreements and financing statements under the
Uniform Commercial Code, as Lender may require. Lender may also file financing
statements signed only by the Lender and the costs of filing shall be payable by
Debtor or Creditor, as the case may be.
Debtor hereby agrees that it will render to Lender upon demand from time
to time a statement of the account of Creditor with Debtor; that it will give
and Lender shall have access from time to time to its books in order that Lender
may make full and free examination of the state of the accounts of Creditor with
Debtor (with the right to make copies thereof) and that it will duly comply with
and perform each and every of the terms of this agreement on its part required
to be performed. Debtor and Creditor agree that their books and records will
appropriately show that Creditor's claims are subject to this agreement.
Creditor and Debtor waive a trial by jury and a right to interpose any
counterclaim or offset of any nature or description in any litigation arising
out of or relating to Creditor's claims or this subordination. In the event
Lender shall retain or engage an attorney or attorneys to collect or enforce or
protect its interests with respect to this agreement or any claim or demand
of Creditor against Debtor, all of the costs and expenses of such collection,
enforcement or protection, including reasonable attorneys' fees shall be payable
by each Creditor or Debtor against whom such collection, enforcement or
protection is sought.
Creditor and Debtor agree that, if after the satisfaction of all of said
obligations, Debtor thereafter becomes liable to Lender on account of any new
obligations, this agreement shall thereupon become immediately effective with
respect to any claims then in existence or thereafter created, without the
necessity of any further act, agreement or writing, the intent being that this
be a continuing agreement of subordination and assignment. However, should
Creditor have received any payment or security on account of said claims at any
time after the satisfaction by Debtor of all of said obligations and before the
incurring of new obligations, Creditor will notify Lender in writing of the
receipt thereof. In the event that Creditor fails to notify Lender, and new
obligations are thereafter created, Creditor agrees that if a default occurs
with respect to the payment or performance of any of the terms of such new
obligations, Creditor will immediately pay to Lender an amount equivalent to any
such payment or the value of such security received. Creditor agrees that any
credit now or hereafter extended to Debtor by Lender shall be in its sole
discretion and shall be deemed to have been extended in consideration of and in
reliance upon this agreement.
In the event of a breach by either Debtor or Creditor in the performance
of any of the terms of this agreement, all of the said obligations of Debtor to
Lender shall, any other agreement to the contrary notwithstanding and without
notice or demand, become immediately due and payable, at Lender's option.
No waiver shall be deemed to be made by lender of any of its rights
hereunder unless same shall be writing and each waiver, if any, shall be a
waiver only with respect to the specific instance involved and shall in no way
impair Lender's rights and/or the obligations of Creditor to it in any other
respect or at any other time, nor shall same establish a course of conduct. This
agreement may not be modified or amended without the prior written consent of
Lender.
Each Creditor or Debtor not a resident of the State of New York or
qualified to do business in New York, hereby irrevocably consents to the
jurisdiction of the Courts of the State of New York and of any Federal Court
located in such State in connection with any action or proceeding arising out of
or relating to this agreement or any claim or demand of Creditor against Debtor.
In any such litigation such Creditor or Debtor, as the case may be, waives
personal service of any summons, complaint or other process and agrees that the
service thereof may be made by certified or registered mail directed to such
party at the last known address appearing on the records of Lender. Within 30
days after such mailing, the party so served shall appear or answer to such
summons, complaint or other process.
-3-
Should the party so served fail to appear or answer within said 30-day period,
such party shall be deemed in default and judgment may be entered by Lender
against such party for the amount as demanded in any summons, complaint or other
process so served.
This agreement shall be binding upon the undersigned and the legal
representatives, successors and assigns of the undersigned and shall be governed
by and construed in accordance with the Laws of the State of New York.
IN WITNESS WHEREOF, each of the undersigned has caused these
presents to be properly executed this 28th day of June, 1996.
JAZZ PHOTO CORP.
(Debtor)
By: /s/
--------------------
XXXXXXX XXXXX
By XXXX XXXXX - Custodian -
/s/ Xxxx Xxxxx
------------------------
(Creditor)
STATE OF NEW JERSEY
COUNTY OF MONMOUTH
On this 30 day of June, 1997, before me personally appeared Xxxx
Xxxxx - Custodian - for Xxxxxxx Xxxxx, to me known and known to me to be the
individual described in and who executed the foregoing instrument, and (s)he
duly acknowledged that (s)he executed the same.
/s/ Xxxxx Xxxxx
------------------------
Notary Public
STATE OF NEW YORK
COUNTY OF NEW YORK
On this 30 day of June, 1997, before me personally appeared Xxxx
Xxxxx, to me known, who being by me duly sworn, did depose and say that (s)he
resides at 00 Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000, and that (s)he is the
President of Jazz Photo Corp., the corporation described in and which executed
the foregoing instrument; that (s)he knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by the order of the Board of Directors of said corporation, and that
(s)he signed his/her name thereto by like order.
/s/ Xxxxx Xxxxx
------------------------
Notary Public
