Exhibit 10.35
-------------
FACTORING AND SECURITY AGREEMENT
THIS FACTORING AND SECURITY AGREEMENT is made as of December 28, 2001,
by and between INTERNATIONAL FLEX TECHNOLOGIES, INC., a Delaware corporation
("Seller"), and GREENFIELD COMMERCIAL CREDIT, L.L.C., a Michigan limited
liability company ("Purchaser").
1. Definitions. The following terms used herein shall have the
following meaning. All capitalized terms not herein defined shall have the
meaning set forth in the Uniform Commercial Code:
"Avoidance Claim" - any claim that any payment received by Purchaser
from or for the account of an Account Debtor is avoidable under the Bankruptcy
Code or any other debtor relief statute.
"Books and Records" - all books and records, including, without
limitation, all computer programs, printed output and computer readable data in
the possession or control of the Seller, any computer service bureau or other
third party;
"Clearance Days" - (i) three (3) business days for checks drawn on
banks located within the state in which Purchaser has its principal place of
business; (ii) seven (7) business days for checks drawn on banks located outside
the state in which Purchaser has its principal place of business; (iii) zero (0)
business days for any electronic fund transfer.
"Closed" - a Purchased Account is closed upon the first to occur of
(i) receipt of full payment by Purchaser or (ii) the unpaid Face Amount has been
charged to the Reserve Account by Purchaser pursuant to the terms hereof.
"Collateral" - any collateral now or hereafter described in any form
UCC-1 filed against Seller naming Purchaser as the secured party, and all of
Seller's right, title and interest in and to the following property, now owned
and hereafter acquired:
All Accounts due Seller from each Designated Account Debtor
(including Purchased Accounts which are repurchased by Seller),
including, but not limited to, all rights of Seller as a seller of
goods, including rights of reclamation, replevin and stoppage in
transit, all Books and Records relating thereto and all Proceeds
thereof.
"Designated Account Debtor" - each Account Debtor listed on Schedule A
attached hereto and incorporated herein by this reference, including as the same
may be amended and restated from time to time in the manner described in Section
17 hereof.
"Discount Fee" - the Discount Fee Percent multiplied by the original
Face Amount of each Purchased Account.
"Discount Fee Percent" - .75% for each ten (10) days or portion
thereof for the first (1st) ninety (90) days after the Purchase Date.
"Eligible Account" - an Account which is acceptable for purchase as
determined by Purchaser in the exercise of its reasonable sole credit or
business judgment and with respect to which all liens and security interests
thereon and therein, other than in favor of Purchaser, have been terminated.
"Events of Default" - See Section 13.
"Face Amount" - the face amount due on an Account at the time of
purchase.
"Late Charge" - 1.5% for each ten (10) days or portion thereof.
"Late Payment Date" - the date which is ninety (90) days from the date
on which a Purchased Account was Purchased.
"Maximum Amount" - $4,000,000.00 minus the Sheldahl Factored Amount.
"Misdirected Payment Fee" - five percent (5%) of the amount of any
payment on account of a Purchased Account which has been received by Seller and
not delivered in kind to Purchaser within five (5) International Flex
Technologies business days following the date of receipt by Seller.
"Notation" - "This account has been assigned and is payable directly
to GREENFIELD COMMERCIAL CREDIT, located at 1301 W. Long Lake Road, Suite 190,
Troy, MI 48098, to whom notice of any claim or dispute must be advised, either
in writing or by telephone (248-267-6777)."
"Obligations" - all present and future obligations owing by Seller to
Purchaser whether or not for the payment of money, whether or not evidenced by
any note or other instrument, whether direct or indirect, absolute or
contingent, due or to become due, joint or several, primary or secondary,
liquidated or unliquidated, secured or unsecured, original or renewed or
extended, whether arising before, during or after the commencement of any
Bankruptcy Case in which Seller is a Debtor, including but not limited to any
obligations arising pursuant to letters of credit or acceptance transactions or
any other financial accommodations.
"Parties" - Seller and Purchaser.
"Proceeds" - all Proceeds, including, but not limited to, General
Intangibles, insurance proceeds, claims against third parties for loss relating
to any of the foregoing, Instruments, Letter of Credit Rights, Supporting
Obligations, Investment Property and security interests in any property.
"Purchase Date" - the date on which Seller has been advised in writing
that Purchaser has agreed to purchase an Account.
"Purchase Discount" - the Reserve Percentage multiplied by the
original face amount of each Purchased Account.
"Purchase Price" - the Face Amount less the Purchase Discount.
"Purchased Accounts" - Accounts purchased hereunder which have not
been Repurchased.
"Purchased Accounts Collateral" - all Purchased Accounts, all Books
and Records relating thereto and all Proceeds thereof.
"Repurchase Amount" - for a Purchased Account, the unpaid Face Amount
thereof together with all unpaid fees relating thereto.
2
"Repurchased" - an Account has been repurchased when Seller has paid
to Purchaser the then unpaid Face Amount upon demand by Purchaser under the
terms hereof.
"Required Reserve Amount" - the Reserve Percentage multiplied by the
unpaid balance of Purchased Accounts plus any Reserves.
"Reserve Account" - a bookkeeping account on the books of the
Purchaser representing an unpaid portion of the Purchase Price, maintained by
Purchaser to ensure Seller's performance with the provisions hereof.
"Reserve Percentage" - 20%.
"Reserve Shortfall" - the amount by which the Reserve Account is less
than the Required Reserve Amount.
"Reserves" - amounts established by Purchaser in its sole discretion,
for, by way of example only and not limitation, the following purposes: payment
of fees and expenses due Purchaser under this Agreement, Purchased Accounts
which become doubtful as to collection in whole or in part or deductibles with
respect to credit insurance claims on Purchased Accounts.
"Schedule of Accounts" - a form supplied by Purchaser from time to
time wherein Seller lists such of its Accounts due from Designated Account
Debtors as it requests that Purchaser purchase under the terms of this
Agreement.
"Scheduled Termination Date" - June 28, 2002.
"Sheldahl Factored Amount" - the total aggregate outstanding Purchase
Price of all Purchased Accounts under the Sheldahl Factoring Agreement.
"Sheldahl Factoring Agreement" - that certain Factoring and Security
Agreement between Sheldahl, Inc., a Minnesota corporation, as Seller, and
Purchaser dated as of the date hereof, as amended.
"Seller's DDA" - any demand deposit account maintained by Seller, or
represented by an employee of Seller to be maintained by Seller.
2. Sale; Purchase Price; Billing; Reserve.
2.1. Assignment and Sale.
2.1.1. Seller shall offer to sell to Purchaser as
absolute owner, all of Seller's Accounts due Seller from each Designated Account
Debtor by listing them from time to time on Schedules of Accounts, sent by
Seller to Purchaser. Credit insurance shall be required, in Purchaser's sole
discretion, as a condition of Purchaser's purchase of each Account, the cost of
which shall be paid by Seller.
2.1.2. Each Schedule of Accounts shall be accompanied
by such documentation supporting and evidencing the Account as Purchaser shall
from time to time request.
2.1.3. Purchaser shall purchase from Seller such
Accounts as Purchaser determines to be Eligible Accounts, so long as the total
aggregate outstanding Purchase Price of all Purchased Accounts does not exceed,
before and after such purchase, the Maximum Amount.
3
2.1.4. Purchaser shall pay the Purchase Price by wire
transfer of immediately available funds, less any amounts due to Purchaser from
Seller, including, without limitation, any amounts due under Section 2.3 hereof,
of any Purchased Account, to Seller's DDA within two (2) business days of the
Purchase Date, whereupon the Accounts shall be deemed purchased hereunder.
2.2. Billing and Collection. All Account Debtors will be
instructed to make payments to Purchaser. As agent for Purchaser, Seller shall
send a monthly statement to all Account Debtors itemizing their account activity
during the preceding billing period and take other steps necessary to collect
the Purchased Accounts in a commercially reasonable manner consistent with past
practices; provided that Purchaser, at its option and upon ten (10) days' notice
to Seller, may terminate such agency and exclusively perform billing and
collection activities, which billing and collection activities shall be
performed in a commercially reasonable manner.
2.3. Reserve Account.
2.3.1. Purchaser shall establish the Reserve Account
upon the date hereof and credit the Reserve Account in an amount equal to the
Face Amount less the Purchase Price of each Purchased Account.
2.3.2. Purchaser shall charge the Reserve Account for
the Discount Fee for each Purchased Account until such Purchased Account is
collected or Repurchased, except for any Discount Fees included in any
Repurchase Amount charged to the Reserve Account pursuant to Section 5.
2.3.3. Purchaser shall charge the Reserve Account for
each payment to Seller under Section 2.3.6 below.
2.3.4. Purchaser may apply a portion of any Purchase
Price as a credit to the Reserve Account up to the amount of the Reserve
Shortfall.
2.3.5. Seller shall pay to Purchaser on demand the
amount of any Reserve Shortfall.
2.3.6. Purchaser shall pay to Seller, upon Seller's
request, any amount by which collected funds in the Reserve Account are greater
than the Required Reserve Amount; provided, that Seller shall be entitled to
--------
make such demand not more than once per week. Upon each such request by Seller,
Purchaser shall calculate and advise Seller of the Required Reserve Amount.
2.3.7. Purchaser may charge the Reserve Account with
any Obligation, including any amounts due from Seller to Purchaser hereunder,
including, without limitation, any amounts due Purchaser pursuant to Section
9.8.
2.3.8. Purchaser may pay any amounts due Seller
hereunder by a credit to the Reserve Account.
2.3.9. Upon termination of this Agreement, Purchaser
may retain the Reserve Account for forty-five (45) days after collection or
repurchase by Seller of all Purchased Accounts to be applied to payment of any
Obligations which were unknown to Purchaser at the time of termination.
3. Authorization for Purchases. Subject to the terms and conditions
of this Agreement, Purchaser is authorized to purchase Accounts upon telephonic,
facsimile or other instructions received from Peter J. Duff, Benoit Pouliquen,
Owen Gohlke, Dennis Hennesy, James Barnes, David Swenson or
4
any officer, employee or representative of Seller who has been identified in
writing by Seller to Purchaser as an authorized representative.
4. Fees and Expenses. Seller shall pay to Purchaser:
4.1. Misdirected Payment Fee. Any Misdirected Payment Fee
immediately upon its accrual.
4.2. Late Charge. The Late Charge on:
4.2.1. All past due amounts due from Seller to Purchaser
hereunder; and
4.2.2. The amount of any Reserve Shortfall.
4.3. Out-of-Pocket Expenses. The out-of-pocket expenses
directly incurred by Purchaser in the administration of this Agreement such as
wire transfer fees, postage and audit fees. Seller shall not be required to pay
for more than two audits per six month period.
5. Repurchase of Accounts. Purchaser may require that Seller
repurchase any Purchased Account, by payment of the Repurchase Amount on demand.
Purchaser may require that Seller repurchase all Purchased Accounts upon the
occurrence of an Event of Default or upon the termination date of this
Agreement, by payment of the aggregate Repurchase Amount for all Purchased
Accounts on demand. At Purchaser's option, Purchaser may charge the Reserve
Account for the Repurchase Amount for each Purchased Account so required to be
repurchased.
6. Security Interest.
6.1. As collateral securing the Obligations, Seller grants to
Purchaser a continuing first priority security interest in and to the
Collateral.
6.2. Notwithstanding the creation of the above security
interest, the relationship of the parties shall be that of Purchaser and Seller
of accounts, and not that of lender and borrower.
7. Clearance Days. For all purposes under this Agreement, Clearance
Days will be added to the date on which any payment is received by Purchaser.
8. Authorization to Purchaser.
8.1. Seller hereby irrevocably authorizes Purchaser at Seller's
expense, to reasonably exercise at any time any of the following powers until
all of the Obligations have been paid in full: (a) receive, take, endorse,
assign, deliver, accept and deposit, in the name of Purchaser or Seller, any and
all cash, checks, commercial paper, drafts, remittances and other instruments
and documents relating to Purchased Accounts Collateral, (b) take or bring, in
the name of Purchaser or Seller, all steps, actions, suits or proceedings deemed
by Purchaser necessary or desirable to effect collection of or other realization
upon Purchased Accounts Collateral, (c) after an Event of Default, change the
address for delivery of mail to Seller and to receive and open mail addressed to
Seller which is related to the Purchased Accounts, (d) after an Event of
Default, extend the time of payment of, compromise or settle for cash, credit,
return of merchandise, and upon any terms or conditions, any and all Purchased
Accounts Collateral which includes a monetary obligation and discharge or
release any account debtor or other obligor (including filing of any public
record releasing any lien granted to Seller by such account debtor), without
affecting any of the Obligations, (e) execute in the name of Seller and file
against Seller in favor
5
of Purchaser financing statements or amendments with respect to Purchased
Accounts Collateral, (f) pay any sums necessary to discharge any lien or
encumbrance which is senior to Purchaser's security interest in the Purchased
Accounts Collateral, which sums shall be included as Obligations hereunder, and
in connection with which sums the Late Charge shall accrue and shall be due and
payable, (g) file in the name of Seller or Purchaser or both, (1) mechanics lien
or related notices or (2) claims under any payment bond, in connection with
goods or services sold by Seller in connection with the improvement of realty,
and (h) notify any Account Debtor obligated with respect to any Account, that
the underlying Account has been assigned to Purchaser by Seller and that payment
thereof is to be made to the order of and directly and solely to Purchaser.
8.2. Seller hereby releases Purchaser, its officers, employees and
designees, from any liability arising from any acts under this Agreement or in
furtherance thereof whether of omission or commission, and whether based upon
any error of judgment or mistake of law or fact, except for willful misconduct
or gross negligence. In no event will Purchaser have any liability to Seller for
lost profits or other special or consequential damages. Without limiting the
generality of the foregoing, Seller releases Purchaser from any claims which
Seller may now or hereafter have arising out of Purchaser's endorsement and
deposit of checks issued by Seller's customers stating that they were in full
payment of an account, but issued for less than the full amount which may have
been owed on the account.
8.3. Seller authorizes Purchaser to reasonably accept, indorse and
deposit on behalf of Seller any checks tendered by an account debtor "in full
payment" of its obligation to Seller. Seller shall not assert against Purchaser
any claim arising therefrom, irrespective of whether such action by Purchaser
effects an accord and satisfaction of Seller's claims, under (S)3-311 of the
Uniform Commercial Code, or otherwise.
8.4. ACH Authorization. In order to satisfy any of the Obligations,
Purchaser is hereby authorized by Seller to initiate electronic debit or credit
entries through the ACH system to Seller's DDA or any other deposit account
maintained by Seller wherever located. Seller may only terminate this
authorization by giving Purchaser thirty (30) days prior written notice of
termination.
9. Covenants By Seller.
9.1. After written notice by Purchaser to Seller, and automatically,
without notice, after an Event of Default, Seller shall not, without the prior
written consent of Purchaser in each instance, (a) grant any extension of time
for payment of any of the Purchased Accounts Collateral which includes a
monetary obligation, (b) compromise or settle any of the Purchased Accounts
Collateral for less than the full amount thereof, (c) release in whole or in
part any account debtor or other person liable for the payment of any of the
Purchased Accounts Collateral, or (d) grant any credits, discounts, allowances,
deductions, return authorizations or the like with respect to any of the
Purchased Accounts Collateral.
9.2. From time to time as requested by Purchaser, at the sole expense
of Seller, Purchaser or its designee shall have access, during reasonable
business hours not more frequently than quarterly if prior to an Event of
Default and at any time if on or after an Event of Default, to all premises
where Purchased Accounts Collateral is located for the purposes of inspecting
(and removing, if after the occurrence of an Event of Default) any of the
Purchased Accounts Collateral, including Books and Records, and Seller shall
permit Purchaser or its designee to make copies of such Books and Records or
extracts therefrom as Purchaser may request. The fee for each such examination
shall be $1,000.00 per day plus expenses. Without expense to Purchaser, after an
Event of Default, Purchaser may use any of Seller's personnel, equipment,
including computer equipment, programs, printed output and computer readable
media, supplies and premises for the collection of accounts and realization on
the Purchased Accounts Collateral as Purchaser, in its sole discretion, deems
appropriate. Seller hereby irrevocably
6
authorizes all accountants and third parties to disclose and deliver to
Purchaser at Seller's expense all financial information, books and records, work
papers, management reports and other information in their possession relating to
Purchased Accounts Collateral.
9.3. Before sending any invoice evidencing an Account to an Account
Debtor, Seller shall mark same with the Notation, or such other notation as
Purchaser shall have advised Seller in writing.
9.4. Seller shall pay when due all payroll and other taxes, and
shall provide proof thereof to Purchaser in such form as Purchaser shall
reasonably require.
9.5. Seller shall not create, incur, assume or permit to exist any
lien upon or with respect to any Purchased Accounts Collateral now owned or
hereafter acquired by Seller.
9.6. Seller shall maintain insurance on all insurable property
owned or leased by Seller in the manner, to the extent and against at least such
risks (in any event, including but not limited to fire and business interruption
insurance) as usually maintained by owners of similar businesses and properties
in similar geographic areas.
9.7. Notwithstanding that Seller has agreed to pay the Misdirected
Payment Fee pursuant to Section 4.1 hereof, Seller shall deliver in kind to
Purchaser on the next banking day following the date of receipt by Seller of the
amount of any payment on account of a Purchased Account.
9.8. Seller shall indemnify Purchaser from any loss arising out
of the assertion of any Avoidance Claim. Seller shall notify Purchaser within
two business days of it becoming aware of the assertion of an Avoidance Claim.
9.9. Seller shall furnish Buyer within thirty (30) days after the
end of each month an internally prepared income statement and balance sheet
prepared on a basis consistent with such statement prepared in prior months and
in accordance with generally accepted accounting principles and within ninety
(90) days after the end of each fiscal year of Seller, Seller's financial
statements audited by independent, certified public accountants and prepared in
accordance with generally accepted accounting principles applied on a basis
consistent with prior year-end statements.
10. Account Disputes. Seller shall notify Purchaser promptly of and,
if requested by Purchaser, will settle all disputes concerning any Purchased
Account, at Seller's sole cost and expense. However, Seller shall not, without
Purchaser's prior written consent, compromise or adjust any Purchased Account or
grant any additional discounts, allowances or credits thereon. Purchaser may,
but is not required to, attempt to settle, compromise, or litigate
(collectively, "Resolve") the dispute upon such terms as Purchaser in its sole
discretion deem advisable, for Seller's account and risk and at Seller's sole
expense. Upon the occurrence of an Event of Default, Purchaser may Resolve such
issues with respect to any Purchased Account.
11. Perfection of Security Interest. Seller hereby authorizes
Purchaser to file such documents and instruments, including, without limitation,
Uniform Commercial Code financing statements, as Purchaser may deem necessary
from time to time in order to evidence and perfect its security interest in any
Collateral securing the Obligations.
12. Representation and Warranty. Seller represents and warrants that:
12.1. it is fully authorized to enter into this Agreement and to
perform hereunder;
7
12.2. this Agreement constitutes its legal, valid and binding
obligation; and
12.3. Seller is solvent and in good standing in the State of its
organization.
13. Default.
13.1. Events of Default. The following events will constitute an
Event of Default hereunder: (a) Seller defaults in the payment of any
Obligations or in the performance of any provision hereof or of any other
agreement now or hereafter entered into with Purchaser, or any warranty or
representation contained herein proves to be false in any material respect, (b)
Seller becomes subject to any debtor-relief proceedings, (c) Purchaser for any
reason, in good faith, deems itself insecure with respect to the prospect of
repayment or performance of the Obligations.
13.2. Waiver of Notice. SELLER WAIVES ANY REQUIREMENT THAT PURCHASER
INFORM SELLER BY AFFIRMATIVE ACT OR OTHERWISE PRIOR TO ANY ACCELERATION OF
SELLER'S OBLIGATIONS HEREUNDER. FURTHER, PURCHASER'S FAILURE TO CHARGE OR ACCRUE
INTEREST OR FEES AT ANY "DEFAULT" OR "PAST DUE" RATE SHALL NOT BE DEEMED A
WAIVER BY PURCHASER OF ITS CLAIM THERETO.
13.3. Effect of Default.
13.3.1. Upon the occurrence of any Event of Default, in
addition to any rights Purchaser has under this Agreement or applicable law,
Purchaser may immediately terminate this Agreement, at which time all
Obligations shall become immediately due and payable without notice.
13.3.2. The Late Charge shall accrue and be payable on demand
on any Obligation not paid when due.
14. Account Stated. Purchaser shall render to Seller a statement
setting forth the transactions arising hereunder. Each statement shall be
considered correct and binding upon Seller as an account stated, except to the
extent that Purchaser receives, within sixty (60) days after the mailing of such
statement, written notice from Seller of any specific exceptions by Seller to
that statement, and then it shall be binding against Seller as to any items to
which it has not objected.
15. Waiver. No failure to exercise and no delay in exercising any right,
power, or remedy hereunder shall impair any right, power, or remedy which
Purchaser may have, nor shall any such delay be construed to be a waiver of any
of such rights, powers, or remedies, or any acquiescence in any breach or
default hereunder; nor shall any waiver by Purchaser of any breach or default by
Seller hereunder be deemed a waiver of any default or breach subsequently
occurring. All rights and remedies granted to Purchaser hereunder shall remain
in full force and effect notwithstanding any single or partial exercise of, or
any discontinuance of action begun to enforce, any such right or remedy. The
rights and remedies specified herein are cumulative and not exclusive of each
other or of any rights or remedies which Purchaser would otherwise have. Any
waiver, permit, consent or approval by Purchaser of any breach or default
hereunder must be in writing and shall be effective only to the extent set forth
in such writing and only as to that specific instance.
16. Effective Date; Termination. This Agreement will be effective when
accepted by Purchaser and will continue in full force and effect until the
Scheduled Termination Date. Seller or Purchaser may terminate this Agreement
prior to the Scheduled Termination Date at any time upon ten (10) days notice.
8
17. Amendment. Neither this Agreement nor any provisions hereof may be
changed, waived, discharged or terminated, nor may any consent to the departure
from the terms hereof be given, orally (even if supported by new consideration),
but only by an instrument in writing signed by all parties to this Agreement.
Any waiver or consent so given shall be effective only in the specific instance
and for the specific purpose for which given. Amendments and restatements of
Schedule A for the purpose of adding or deleting Designated Account Debtors may
be made by the execution by Seller and Purchaser of an amended and restated
Schedule A bearing the effective date thereof, the date of execution thereof and
sequentially designated as the First Amended and Restated Schedule A, etc.
18. No Lien Termination Without Release. In recognition of the Purchaser's
right to have its attorneys' fees and other expenses incurred in connection with
this Agreement secured by the Collateral, notwithstanding payment in full of all
Obligations by Seller, Purchaser shall not be required to record any
terminations or satisfactions of any of Purchaser's liens on the Collateral
unless and until Seller has executed and delivered to Purchaser a general
release in a form reasonably satisfactory to Purchaser. Seller understands that
this provision constitutes a waiver of its rights under (S)9-509 of the UCC.
19. Conflict. Unless otherwise expressly stated in any other agreement
between Purchaser and Seller, if a conflict exists between the provisions of
this Agreement and the provisions of such other agreement, the provisions of
this Agreement shall control.
20. Survival. All representations, warranties and agreements herein
contained shall be effective so long as any portion of this Agreement remains
executory.
21. Severability. In the event any one or more of the provisions contained
in this Agreement is held to be invalid, illegal or unenforceable in any
respect, then such provision shall be ineffective only to the extent of such
prohibition or invalidity, and the validity, legality, and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
22. Enforcement. This Agreement and all agreements relating to the subject
matter hereof are the product of negotiation and preparation by and among each
party and its respective attorneys, and shall be construed accordingly.
23. Relationship of Parties. The relationship of the parties hereto shall
be that of a seller and a purchaser of accounts, and neither party is or shall
be deemed a fiduciary of or to the other.
24. Attorneys Fees. Seller agrees to reimburse Purchaser on demand for:
24.1. The actual amount of all costs and expenses, including
reasonable attorneys' fees, which Purchaser has incurred or may incur in:
24.1.1. Negotiating, preparing, or administering this
Agreement and any documents prepared in connection herewith, all of which shall
be paid contemporaneously with the execution hereof;
24.1.2. Any way arising out of this Agreement;
24.1.3. Protecting, preserving or enforcing any lien, security
interest or other right granted by Seller to Purchaser or arising under
applicable law, whether or not suit is brought, including but not limited to the
defense of any Avoidance Claims;
9
24.2. The actual costs, including photocopying (which, if performed
by Purchaser's employees, shall be at the rate of $.10/page), travel, and
attorneys' fees and expenses incurred in complying with any subpoena or other
legal process attendant to any litigation in which Seller is a party;
24.3. The actual amount of all costs and expenses, including
attorneys' fees, which Purchaser may incur in enforcing this Agreement and any
documents prepared in connection herewith, or in connection with any federal or
state insolvency proceeding commenced by or against Seller, including those (i)
arising out the automatic stay, (ii) seeking dismissal or conversion of the
bankruptcy proceeding or (iii) opposing confirmation of Seller's plan
thereunder.
Any such costs and expenses incurred subsequent to the execution hereof shall
become part of the Obligations when incurred and may be added to the outstanding
principal amount due hereunder.
25. Entire Agreement. This Agreement supersedes all prior or
contemporaneous agreements and understandings between said parties, verbal or
written, express or implied, relating to the subject matter hereof. No promises
of any kind have been made by Purchaser or any third party to induce Seller to
execute this Agreement. No course of dealing, course of performance or trade
usage, and no parole evidence of any nature, shall be used to supplement or
modify any terms of this Agreement.
26. Choice of Law. This Agreement and all transactions contemplated
hereunder and/or evidenced hereby shall be governed by, construed under, and
enforced in accordance with the internal laws of the State of Michigan.
27. JURY TRIAL WAIVER. IN RECOGNITION OF THE HIGHER COSTS AND DELAY WHICH
MAY RESULT FROM A JURY TRIAL, THE PARTIES HERETO WAIVE ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING HEREUNDER, OR
(B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE
PARTIES HERETO OR ANY OF THEM WITH RESPECT HERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY FURTHER WAIVES ANY RIGHT TO CONSOLIDATE ANY SUCH
---------------------------------------------------------------
ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A
- -----------------------------------------------------------------------------
JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED; 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.
28. Venue; Jurisdiction. The parties agree that any suit, action or
proceeding arising out of the subject matter hereof, or the interpretation,
performance or breach of this Agreement, shall, if Purchaser so elects, be
instituted in the United States District Court for the Eastern District of
Michigan or any court of the State of Michigan located in Oakland County (the
"Acceptable Forums"), each party agrees that the Acceptable Forums are
convenient to it, and each party irrevocably submits to the jurisdiction of the
Acceptable Forums, irrevocably agrees to be bound by any judgment rendered
-------------------------------------------------------
thereby in connection with this Agreement, and waives any and all objections to
- -----------------------------------------
jurisdiction or venue that it may have under the laws of the State of Michigan
or otherwise in those courts in any such suit, action or proceeding. Should
such proceeding be initiated in any other forum, Seller waives any right to
oppose any motion or application made by Purchaser as a consequence of such
proceeding having been commenced in a forum other than an Acceptable Forum.
10
29. Notice.
29.1. All notices required to be given to any party shall be deemed
given upon the first to occur of (i) two (2) business days' deposit thereof in a
receptacle under the control of the United States Postal Service, (ii)
transmittal by electronic means to a receiver under the control of such party,
or (iii) actual receipt by such party or an employee or agent of such party.
29.2. For the purposes hereof, notices hereunder shall be sent to the
following addresses, or to such other addresses as each such party may in
writing hereafter indicate:
SELLER
ADDRESS: 1093 Clark Street
Endicott, New York 13760
OFFICER: Peter J. Duff
FAX NUMBER: 507-663-8545
PURCHASER
ADDRESS: 1301 W. Long Lake Road, Suite 190
Troy, Michigan 48098
OFFICER: Steven B. Tomasello
FAX NUMBER: 248-267-6780
30. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if all
signatures were upon the same instrument. Delivery of an executed counterpart of
the signature page to this Agreement by facsimile shall be effective as delivery
of a manually executed counterpart of this Agreement, and any party delivering
such an executed counterpart of the signature page to this Agreement by
facsimile to any other party shall thereafter also promptly deliver a manually
executed counterpart of this Agreement to such other party, provided that the
failure to deliver such manually executed counterpart shall not affect the
validity, enforceability, or binding effect of this Agreement.
IN WITNESS WHEREOF, the Parties have executed this agreement on the day and
year first above written.
SELLER: INTERNATIONAL FLEX TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ Peter J. Duff
-------------------------------
Peter J. Duff
Its: Chief Financial Officer
STATE OF MINNESOTA )
) SS.
COUNTY OF RICE )
On the 28th day of December, 2001, before me, a Notary Public in and for
said county and state, personally appeared Peter J. Duff, Chief Financial
Officer of International Flex Technologies, Inc., a Delaware corporation, known
to me to be the person who executed the within instrument on behalf of said
11
corporation and acknowledged that he executed the same as his free act and deed
on behalf of said corporation
/s/ Debra K. Larson
----------------------------
Notary Public
12
PURCHASER: GREENFIELD COMMERCIAL CREDIT, L.L.C.,
a Michigan limited liability company
By: GCC Management, Inc.
Its: Manager
By: /s/ Donald G. Barr, Jr.
-------------------------------
Donald G. Barr, Jr.
Its: President
13