EXHIBIT 10.1
ACCOUNTS RECEIVABLE PURCHASE AGREEMENT
This Summary Disclosure is merely a summary of the attached Agreement provided
for the convenience of the Client and the Client is urged to read the entire
Agreement for all details. In any conflict between this Summary Disclosure and
the Agreement, the Agreement prevails. Further, the Client understands that CCL
assumes no responsibility for the accuracy of this Summary Disclosure, and is
not liable for any conflict between this Summary Disclosure and the Agreement,
absent gross negligence or willful misconduct.
SUMMARY DISCLOSURE
(all terms subject to the terms and conditions of this Agreement)
Initial Purchase Price (up to): 85%
Interest Rate: New York Prime Rate plus 1% (based upon funds employed)
Servicing Fee: An incremental 0.7% each 15 days (based upon Net Face Amount)
Example: Invoice payment received 44 days from date account purchased equals a
total Servicing Fee of 2.1%
This AGREEMENT is entered into by and between E-TOP-PICS, INC., a
Massachusetts , having its principal place of business at 00 Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 ("Client"), and COMMERCIAL CAPITAL LENDING, LLC
located at 00000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxx Xxxxx, Xxxxxxxxx
00000 (hereinafter referred to as "CCL").
AGREEMENT
1. Definitions and Construction. For the purpose of this Agreement, the
following terms have been given the following meanings: 1.1. "Account Debtor" -
the obligor on an Account.
1.2. "Accounts" - accounts (as defined in the Uniform Commercial Code)
created by the Client.
1.3. "Agreement" - This Accounts Receivable Purchase Agreement as modified
or amended from time to time, and any exhibits or attachments to this Agreement.
1.4. "Balance Subject to Interest" - The difference between the unpaid Net
Face Amount of Purchased Accounts and the Reserve Percentage.
1.5. "Avoidance Claim" - any claim that any payment received by CCL from
or for the account of an Account Debtor is avoidable under the Bankruptcy Code
or any other debtor relief statute.
1.6. "CCL" - see preamble.
1.7. "CCL Investment" - with respect to a Purchased Account, the sum of
(i) the Initial Purchase Price, plus (ii) all unpaid fees and charges owed by
Client to CCL relating to said Purchased Account.
1.8. "CCL Investment Percentage" - 100% less the Reserve Percentage.
1.9. "Client" - see Preamble.
1.10. "Closed" -a Purchased Account is closed upon the first to occur of
(i) receipt of full payment by CCL or (ii) the unpaid balance has been charged
to the Reserve Account by CCL pursuant to the terms hereof.
1.11. "Collateral" - all now owned and hereafter acquired personal
property and fixtures, and proceeds thereof, (including proceeds of proceeds)
including without limitation Accounts, Chattel Paper, Instruments, including
Promissory Notes, Investment Property, Documents, and General Intangibles.
Collateral does not include Inventory and Equipment.
1.12. "Default Interest Rate" - The Interest Rate plus ten percent (10%)
per annum.
1.13. "Early Termination Fee" - all fees paid or payable by Client
pursuant to Section 5 hereof in the ninety (90) day period preceding the date on
which the termination is to be made.
1.14. "Eligible Account" - an Account which is not an Ineligible Account.
1.15. "Events of Default" - see Section 14.
1.16. "Exposed Payments" - Payments received by CCL from an Account Debtor
which has become subject to a bankruptcy proceeding, to the extent such payments
cleared said Account Debtor's deposit account within ninety days of the
commencement of said bankruptcy case.
1.17. "Ineligible Accounts" - Purchased Accounts:
1.17.1. that do not conform with the representations and warranties set
forth in Section 11 of this Agreement;
1.17.2. or any portion thereof, for which payment has not been received by
CCL, for any reason, within ninety (90) days of the date of invoice;
1.17.3. which are owned by CCL at the time that Client has committed an
Event of Default hereunder.
1.18. "Initial Purchase Price" - the Purchase Price less the Reserve
Percentage relating to that Purchased Account.
1.19. "Interest" - The product of the Interest Rate multiplied by the
average daily Balance Subject to Interest, computed on a 360 day year.
1.20. "Interest Rate" - One percent (1%) over the Prime Rate.
1.21. "Invoice" - the document that evidences or is intended to evidence
an Account. Where the context so requires, reference to an Invoice shall be
deemed to refer to the Account to which it relates.
1.22. "Maximum CCL Investment" - the product of the Net Face Amount of
Purchased Accounts multiplied by the CCL Investment Percentage.
1.23. "Misdirected Payment Fee" - fifteen percent (15%) of the amount of
any payment on account of a Purchased Account where said payment has been
received by Client and not immediately delivered in kind or the proceeds paid by
Client to CCL.
1.24. "Missing Notation Fee" - fifteen percent (15%) of the Net Face
Amount.
1.25. "Net Face Amount" - the gross amount of a Purchased Account, based
on shortest selling terms, less all credits, discounts, and allowances to which
the Account Debtor is entitled.
1.26. "Obligations" - all present and future obligations owing by Client
to CCL, 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
Client is a debtor, and all principal, interest, fees, charges, expenses,
attorneys' fees and accountants' fees chargeable to Client or incurred by CCL in
connection with this Agreement and/or the transaction(s) related thereto.
1.27. "Primary Defaults" - Events of default as set forth in Sections
14.1, 14.2, 14.4, or 14.7 herein.
1.28. "Prime Rate" - the "prime rate" set forth in the Wall Street Journal
as the "prime rate." If said prime rate is set forth as a range, the Prime Rate
hereunder shall be the highest rate in said range.
1.29. "Purchase Price" - the Net Face Amount of a Purchased Account.
1.30. "Purchase Schedule" - a numbered schedule prepared by CCL listing
those Accounts purchased by CCL from Client.
1.31. "Purchased Account" - an Account which has been purchased by CCL
from Client hereunder.
1.32. "Reserve Account" - an account established in the records of CCL
(and not a segregated or separate account), representing the difference between
the CCL Investment and the Net Face Amount of Purchased Accounts.
1.33. "Reserve Percentage" - Fifteen percent (15%).
1.34. "Servicing Fee" - with respect to any Purchased Account which is
unpaid in whole or in part, the product of the Servicing Fee Percent multiplied
by the Net Face Amount of such Purchased Account.
1.35. "Servicing Fee Percent" - Seven-tenths percent (0.7%).
1.36. "Servicing Fee Increment" - Fifteen (15) day period.
1.37. "Settlement Amount"- payments received by CCL as proceeds of
Purchased Accounts listed on a Purchase Schedule in excess of the CCL Investment
relating thereto.
2. Sale and Acceptance of Accounts.
2.1. The Client may tender to CCL for purchase pursuant to this Agreement
certain of its Accounts by delivering to CCL copies of the Invoices or the
original Invoices and any additional backup documentation relating thereto as
directed by CCL.
2.2. CCL will conduct such examination and verification of the Accounts,
and such credit investigation of the Account Debtors, as it considers necessary
or desirable, and will notify the Client as to which of the individual Accounts
tendered by the Client, if any, CCL elects to purchase from the Client. CCL
shall have the absolute right, in its sole discretion, to reject any or all of
the Accounts tendered to it by the Client, irrespective of whether or not CCL
has previously purchased Accounts from the Client or has purchased Accounts of
any particular Account Debtor.
2.3. Those Accounts which CCL elects to purchase from the Client shall be
listed in a Purchase Schedule sent by CCL to Client. Client shall have been
deemed to have sold to CCL, and CCL shall be deemed to have purchased all right,
title, and interest of the Client in and to the Accounts listed on the Purchase
Schedule.
3. Payment of Purchase Price.
3.1. The Initial Purchase Price for each Purchased Account, less any
amounts due by Client to CCL hereunder, shall be paid to the Client in
immediately available funds at the time of purchase.
3.2. Client shall not permit the CCL Investment to exceed the Maximum CCL
Investment, and any such excess shall be paid by Client to CCL on demand.
4. Reserve Account.
4.1. Refund of Reserve Account. CCL shall pay to Client all amounts
received by CCL in payment of Purchased Accounts any Settlement Amount, net of
any amount due to CCL by Client hereunder. Any amounts due hereunder will be
available to Client two (2) business days from CCL's receipt thereof.
4.2. CCL may reduce the Reserve Account by any amounts due from Client to
CCL hereunder.
4.3. CCL may increase the Reserve Account at any time without notice if in
the exercise of its reasonable discretion such increase is necessary to reflect
events, conditions, contingencies or risks which do or may affect the value of
the Collateral or Client's ability to perform its obligations hereunder.
4.4. CCL may pay any amounts due Client hereunder by a credit to the
Reserve Account;
4.5. Upon termination of this agreement CCL, may retain the Reserve
Account unless and until Client has executed and delivered to CCL a general
release in the form of Exhibit A hereto.
4.6. Exposed Payments.
4.6.1. Upon termination of this Agreement, Client shall pay to CCL (or CCL
may retain), to hold in a non-segregated non-interest bearing account, the
amount of all Exposed Payments (the "Preference Reserve").
4.6.2. CCL may charge the Preference Reserve with the amount of any
Exposed Payments which CCL pays to the bankruptcy estate of the Account Debtor
which made the Exposed Payment, on account of a claim asserted under Section 547
of the Bankruptcy Code.
4.6.3. CCL shall refund to Client from time to time that balance of the
Preference Reserve for which a claim under Section 547 of the Bankruptcy Code
can no longer be asserted due to the passage of the statute of limitations,
settlement with the bankruptcy estate of the Account Debtor or otherwise.
5. Fees.
5.1. Servicing Fee. Client shall pay to CCL, when a Purchased Account is
Closed, the Servicing Fee at the end of each Servicing Fee Increment (or portion
thereof) from the date purchased until the date Closed.
5.2. Interest. Client shall pay to CCL the Interest, on the first day of
the month following the month in which it accrues.
5.3. Misdirected Payment Fee. Client shall pay any Misdirected Payment Fee
to CCL, immediately upon accrual.
5.4. Missing Notation Fee. Client shall pay the Missing Notation Fee on
any Account that is sent by Client to an Account Debtor which does not contain
the notice as required by Section 7.1 hereof, immediately upon accrual.
6. Repurchase of Accounts. CCL may require that Client repurchase, by payment of
the CCL Investment, on demand, or, at CCL's option, by CCL's charge to the
Reserve Account:
6.1. Any Purchased Account which becomes an Ineligible Account;
6.2. Any Purchased Account, the payment of which has been disputed by the
Account Debtor obligated thereon, CCL being under no obligation to determine the
bona fides of such dispute;
6.3. Any Purchased Account for which Client has breached its warranty
under Section 11 hereunder;
6.4. Any Purchased Account owing from an Account Debtor which in CCL's
reasonable credit judgement has become insolvent; and
6.5. All Purchased Accounts upon the occurrence of an Event of Default or
upon the termination date of this Agreement.
7. Collection of Accounts; Special Power of Attorney.
7.1. Client shall direct the Account Debtors on Accounts to make payment
as directed by CCL by providing such notation on an Invoice as CCL shall direct.
7.2. Any payments from Account Debtors received by Client contrary to
payment instructions given to such Account Debtors shall be delivered in kind to
CCL immediately upon receipt.
7.3. Client hereby grants CCL an irrevocable power of attorney (which,
being coupled with an interest, is irrevocable) for the purpose of acting on
Client's behalf to:
7.3.1. endorse or sign Client's name on any checks or other instruments
which come into CCL's possession with respect to Accounts;
7.3.2. negotiate, transfer, deposit, and otherwise deal with such checks
or other instruments as the sole owner thereof; and
7.3.3. to settle, compromise, enforce and attempt to collect any Purchased
Account or, after the occurrence of an Event of Default, any Account.
7.4. After an Event of Default, Client hereby grants CCL an irrevocable
power of attorney (which, being coupled with an interest, is irrevocable) for
the purpose of acting on Client's behalf to change the address for the delivery
of mail to CCL's address and to receive and open mail addressed to Client.
7.5. In granting this Power of Attorney, Client hereby cancels and revokes
all previous powers of attorney in respect of the matters comprised herein which
have been granted to any other person.
8. Security Interest.
8.1. As collateral securing the Obligations, Client grants to CCL a
continuing first priority security interest in and to the Collateral.
8.2. 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.
9. Affirmative Covenants.
9.1. Client shall provide CCL with:
9.1.1. copies of Client's bank deposit records periodically, if requested
by CCL;
9.1.2. Client's financial statements within thirty (30) days of the close
of the Client's prior calendar month, which shall be certified by a responsible
officer of Client. Any supporting detail which CCL may
request in connection with its review and analysis of the monthly financial
statements of Client shall be furnished to CCL upon request.
9.2. Client shall allow CCL to enter Client's premises during normal
business hours to perform its review of Client's records relating to the
Collateral, or for any other purpose reasonably necessary to facilitate this
Agreement.
9.3. Client shall pay when due all payroll and other taxes, and shall
provide proof thereof to CCL in such form as CCL shall reasonably require.
10. Notification to Account Debtors. CCL may at any time give notice to Account
Debtors that payments on Accounts shall be made directly to CCL. Such notice may
be in the form of Exhibit "B" hereto. Client will execute a letter in the form
of Exhibit "C" hereto in support thereof.
11. Representations and Warranties.
11.1. Client expressly warrants, represents and covenants as follows:
11.1.1. Client shall immediately notify CCL in writing upon it acquiring
any facts which would cause a Purchased Account to become an Ineligible Account.
11.1.2. Client has good and indefeasible clear title to the Collateral and
has the right, power and authority, subject to all applicable governmental
regulations, to sell Purchased Accounts hereunder, and to grant a security
interest in the Collateral to CCL;
11.1.3. the Collateral is not subject to, and is free and clear of, any
lien, claim, pledge, security interest or encumbrance of any kind;
11.1.4. Client is properly licensed and authorized to operate its business
under all applicable State and Federal laws in the name designated for Client on
the signature page of this Agreement;
11.1.5. Client will not assign, pledge, subordinate, give a security
interest in or otherwise transfer any Collateral to any entity other than CCL or
its assigns;
11.1.6. this Agreement is binding upon Client as well as upon Client's
successors, representatives and assigns, and is legally enforceable in
accordance with its terms;
11.1.7. Client will record its sale of Purchased Accounts to CCL and make
notations recording such sales in its accounting records and books. Client
hereby binds itself, its successor and assigns to warrant and forever defend
title in and to the Collateral unto CCL, its successors and assigns, against any
and every person whomsoever may assert any claim to the Collateral or any part
thereof.
11.1.8. The Purchased Accounts are and will remain:
11.1.8.1. bona fide existing obligations created by the sale and delivery
of goods or the rendition of services in the ordinary course of Client's
business;
11.1.8.2. unconditionally owed and will be paid to CCL without defenses,
disputes, offsets, counterclaims, or rights of return or cancellation;
11.1.8.3. Not sales to any entity which is affiliated with Client or in
any way not an "arms length" transaction. 11.1.9. Client has not received notice
of actual or imminent bankruptcy, insolvency, or material impairment of the
financial condition of any applicable Account Debtor regarding Purchased
Accounts.
11.2. The foregoing representations, covenants and warranties will run to
the benefit of CCL's successors and assigns and will be continuing in nature and
will remain in full force and effect until all obligations and sums owing to CCL
by Client have been fully performed, paid and satisfied, whether or not this
Agreement is canceled or terminated. Client does hereby bind itself, its
successors and assigns, to indemnify and hold CCL (and its successors and
assigns) harmless from any and all cost incurred by CCL and its successors and
assigns, including attorney's fees and court costs, for breach of any warranty
expressed in this Section.
12. ACH Authorization. In order to satisfy any of the Obligations, CCL is hereby
authorized by Client to initiate electronic debit or credit entries through the
ACH system to any deposit account maintained by Client wherever located.
13. Avoidance Claims.
13.1. Client shall indemnify CCL from any loss arising out of the
assertion of any Avoidance Claim and shall pay to CCL on demand the amount
thereof.
13.2. Client shall notify CCL within two (2) business days of it becoming
aware of the assertion of an Avoidance Claim. 13.3. This Section 13 shall
survive termination of this Agreement.
14. Events of Default. Client will be in default of this Agreement upon the
happening of any of the following events (herein called "Events of Default"):
14.1. the failure by Client to pay any sums due to CCL;
14.2. the happening of any event which results in the creation of a
Misdirected Payment Fee;
14.3. the failure by Client to provide any reports or other information to
CCL as required hereunder;
14.4. the denial to CCL of access to Client's premises or records as
required herein;
14.5. the breach of any warranty, covenant or representation made herein
or in connection herewith;
14.6. the commencement of any insolvency or debtor-relief proceeding by or
against Client;
14.7. Client's failure to pay any State or Federal tax when due;
14.8. The Client or any present or future guarantor of the obligations
becoming indicted or the target of any criminal investigation by any law
enforcement authority, or the service of a subpoena or other discovery on the
Client in connection with any claim asserted against the Client or any guarantor
by any governmental authority;
14.9. A sale, hypothecation or other disposition is made of twenty percent
(20%) or more of the beneficial interest in any class of voting stock of Client,
without the written consent of CCL.
15. Remedies.
15.1. Upon the occurrence of a Primary Default, or an Event of Default
other than a Primary Default which has not been cured within three (3) business
days after notice by CCL to Client, CCL may:
15.1.1. elect to declare any and all Purchased Accounts to be Ineligible
Accounts;
15.1.2. declare that all Obligations are immediately due and payable
without notice and without opportunity for cure;
15.1.3. Charge the Default Interest Rate instead of the Interest Rate on
the Balance Subject to Interest.
15.1.4. commence and effect collection of any and all Collateral by
whatever means CCL deems reasonable and necessary, without recourse to judicial
proceedings against Client. Client expressly relieves and releases CCL and its
assigns, as the secured party, of any and all liability or responsibility
whatever which might arise because of CCL's or its assign's failure to enforce
by judicial process, or otherwise, any Account, or because of its failure to
give any notice or make any demand with regard thereto.
15.2. CCL shall have all rights and remedies of a secured party under
applicable law, including the right to enter, during normal business hours, upon
the premises where any Collateral is located and take immediate possession of
such Collateral and remove same from such premises.
15.3. To the extent deemed reasonably necessary by CCL to aid in the
collection of the Collateral, CCL will have the right to the use of any computer
hardware, software, account ledgers, books, records, files and computer disks
used by Client pertaining to the Collateral.
15.4. CCL may avail itself of all such other rights and remedies as may
now or hereafter exist at law or in equity for collection of said sums due and
the enforcement of the covenants, warranties and representations herein and
resort to any one or combination of such remedies provided hereunder will not
prevent the concurrent or subsequent employment of any other appropriate remedy.
16. Survival. All representations, warranties and agreements herein contained on
the part of Client shall be effective so long as Obligations remain outstanding.
17. Severability of Provisions. 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.
18. Amendment and Waiver. This Agreement shall not be changed, modified,
amended, or terminated except by a writing duly executed by CCL and Client.
19. No Waiver. No failure to exercise and no delay in exercising any right,
power, or remedy hereunder shall impair any right, power, or remedy which CCL
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 of any breach or default of Client hereunder be
deemed a waiver of any default or breach subsequently occurring. All rights and
remedies granted to CCL 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 CCL would otherwise have. Any waiver, permit, consent or
approval by CCL 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.
20. Successors and Assigns.
20.1. This Agreement shall be binding upon and inure to the benefit of
CCL, Client, and their respective successors and assigns.
20.2. CCL may assign its rights and delegate its duties hereunder. Upon
such assignment, Client shall be deemed to have attorned to such assignee and
shall owe the same obligations to such assignee and shall accept performance
hereunder by such assignee as if such assignee were CCL.
21. Waiver of Statute of Limitations. Client waives the pleading of any statute
of limitations with respect to any and all actions in connection herewith.
22. Jurisdiction and Venue. Client hereby irrevocably agrees that all actions
and proceedings arising out of or in any way connected with this Agreement shall
be litigated in courts having situs within the City of Baton Rouge, State of
Louisiana, and Client hereby consents and submits to the jurisdiction of any
local, state or federal court located within said jurisdiction. Client hereby
irrevocably appoints and designates the Secretary of State of Louisiana as
Client's true and lawful attorney and duly authorized agent for acceptance of
service of legal process. Client agrees that service of such process upon such
person shall constitute personal service of such process upon Client. Client
hereby waives any right it may have to transfer or change the venue of any
litigation arising out of or in any way connected with this Agreement.
23. Waiver of Trial by Jury. 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 HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A
JURY, AND THAT 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.
24. Costs and Expenses.
24.1. Client agrees to reimburse CCL for all costs and expenses, including
attorneys' fees, which CCL has incurred or may incur in:
24.1.1. negotiating, preparing, administering or enforcing this Agreement
and any documents prepared in connection herewith;
24.1.2. protecting, monitoring, preserving or enforcing any lien, security
interest or other right granted by Client to CCL (including travel expenses of
CCL's employees and agents), or arising under applicable law, whether or not
suit is brought,
24.1.3. connection with any federal or state insolvency proceeding
commenced by or against Client, including those (i) arising out the automatic
stay, (ii) seeking dismissal or conversion of the bankruptcy proceeding or (iii)
opposing confirmation of Client's plan thereunder;
24.1.4. connection with Client's sale of the Purchased Accounts and the
grant of a security interest in and to the Collateral (and other accounts
receivable) to CCL, filing fees, public records searches, and other expenses
directly related to the sale of the Accounts and the perfection of the security
interest. All such direct out-of-pocket expenses incurred by CCL shall be
reimbursed by Client to CCL on demand.
24.2. All such costs and expenses which have been incurred on or prior to
the execution hereof shall be paid contemporaneously with the execution hereof.
Any such costs and expenses incurred subsequent to the execution hereof shall
become part of the Obligations when incurred.
25. Term; Termination.
25.1. This Agreement will be effective for an initial term of one (1)
year, commencing with the Effective Date as set forth below and will continue
thereafter automatically renewing annually unless terminated by either party
upon written notice of termination sent not less than thirty (30) nor more than
ninety (90) days prior to the next anniversary date hereof specifying such
party's intention to terminate this Agreement on the next anniversary date.
25.2. Early Termination Fee. In the event that Client seeks to terminate
this Agreement other than as set forth in Section 25.1 above, Client shall pay
the Early Termination Fee to CCL as a condition to CCL's consent thereto. 25.3.
No termination of this Agreement will in any way affect or impair any right of
CCL arising prior thereto or by reason thereof, nor will any such termination
relieve Client of any duty to CCL under, nor deny CCL any benefit from, this
Agreement or otherwise until all of Obligations have been fully discharged.
25.4. No Lien Termination Without Release. In recognition of CCL's right
to have its attorneys' fees and other expenses incurred in connection with this
Agreement secured by the Collateral, notwithstanding payment in full of all
Obligations by Client, CCL shall not be required to record any terminations or
satisfactions of any of its liens on the Collateral unless and until Client and
all guarantors of its obligations have executed and delivered to CCL a general
release in the form of Exhibit A hereto. Client understands that this provision
constitutes a waiver of its rights under ss.9-513 of the UCC.
26. State Law; Jurisdiction. This Agreement is accepted, made and will be
governed by the laws of the State of Louisiana without regard to conflict of
laws principles. All sums due hereunder are payable in the State of Louisiana.
Venue and jurisdiction will be exclusively in the state district courts of the
Parish of East Baton Rouge, State of Louisiana. Both parties waive their right
to trial by jury and agree to submit all disputed issues to the judge of any
court in which any litigation is pending.
27. Miscellaneous. This Agreement sets forth the entire agreement and
understanding between the parties relating to the subject matter herein and
merges all prior discussion between them. Client may not assign any of its
rights or obligations hereunder without the prior written consent of CCL;
however, CCL may assign any of its rights and remedies. All notices pursuant to
the Agreement must be in writing and will be deemed given when (1) mailed
postage prepaid by certified or registered mail, return receipt requested, or
(2) courier delivered personally to the party concerned at the address set forth
herein, or (3) facsimile transmitted to the party concerned at the telecopier
number given by the respective party. The provisions of this Agreement are
severable and if any of these provisions will be held by any court of competent
jurisdiction to be unenforceable, void or voidable, such holding will not affect
or impair any other provision hereof. CCL may assign its rights and remedies
including assignments for financing and/or collateralization purposes. Client
consents to CCL or its assignees conducting a comprehensive due diligence review
and financial history investigation relating to Client. This Agreement may be
modified or amended only in writing signed by both parties.
28.
IN WITNESS WHEREOF, the respective authorized officers of the parties have
executed this Agreement effective as of the date hereof.
Accepted in Baton Rouge, Louisiana this
_________ day of __________________ , 20___.
COMMERCIAL CAPITAL LENDING, LLC E-TOP-PICS, INC.
By: By:
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Print Name: Print Name:
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Title: Title:
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Effective Date:
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