EXHIBIT 99.2
MASTER FACTORING AGREEMENT
THIS MASTER FACTORING AGREEMENT (as amended by Addendum No. 1 hereto, this
'AGREEMENT') is made and entered into as of the 1st day of September, 2005, by
and among ACORN HOLDING CORP. and VALENTEC SYSTEMS, INC., its wholly owned
subsidiary, each a Delaware corporation, jointly and severally (collectively
referred to throughout this Agreement as "you," 'your' and 'yours'), and
ROCKLAND CREDIT FINANCE LLC, a Maryland limited liability company (referred to
throughout this Agreement as "we", 'us', 'our' and 'ours').
1. PURCHASE AND SALE OF ACCOUNTS RECEIVABLE
1.1. Scope of Agreement. This Agreement contains the general terms and
conditions under which, from time to time during the Term, you may offer and
sell to us and we may accept and purchase from you in our sole and absolute
discretion certain of your Accounts specifically identified to this Agreement
pursuant to Paragraph 1.2. As used herein, the term 'ACCOUNTS' means,
collectively, accounts, contract rights and other forms of obligation arising in
the ordinary course of business from the sale or lease of goods or rendition of
services.
1.2. Implementation. Each purchase and sale of Accounts hereunder shall
be evidenced by our mutual execution of an Assignment and Transfer of Accounts
Receivable substantially in the form of Exhibit A (each an 'ASSIGNMENT"). (An
Account identified in a duly executed Assignment is hereinafter called an
'ASSIGNED ACCOUNT.') Each purchase of Accounts shall be subject to all of the
terms and conditions of this Agreement, which terms and conditions shall be
deemed incorporated by reference into each Assignment. An Account shall be
deemed accepted by us upon and only upon our execution and delivery to you of
the applicable Assignment. In connection with evaluating Accounts proposed for
factoring hereunder, we reserve the right to conduct such due diligence and
impose such related requirements as we may reasonably determine, including but
not limited to investigating the credit rating and/or credit history of the
customer obligated on the Account and requiring an enforceable written contract
between you and such customer upon terms acceptable to us.
1.3. Effect of Assignment. Without the necessity for further action, each
Assignment shall automatically vest in us all of your right, title and interest
in and to the Assigned Accounts together with (a) full power to collect, sue
for, compromise, assign, in whole or in part, or in any other manner enforce
collection thereof in our name or otherwise, (b) any notes or drafts related
thereto, (c) the contracts under which such Accounts arose, (d) your books and
records relating thereto, whether written or recorded electronically on
computer-readable discs or any other digital or machinereadable form or medium
("Account RECORDS'), (e) any returned, rejected or repossessed goods (if any)
giving rise to such Accounts, (f) your rights as an unpaid vendor or lienor, (g)
all rights of stoppage in transit, replevin, repossession and reclamation, (h)
all deposits and security therefor and guarantees thereof, (i) all rights to
insurance proceeds resulting therefrom, and (j) all payments or other proceeds
of the foregoing in any form (all of the foregoing being included in the term
'Assigned Accounts'). Nothing contained in this Agreement or any Assignment
shall be deemed to constitute an assumption by us of any liability with respect
to or impose any duty or obligation upon us in favor of any Account Debtor or
any other third party in connection with the Accounts.
1.4. Account Documentation. Upon acceptance by us of any Assignment
Agreement, you will deliver to us: (a) copies of all documents evidencing the
Accounts listed thereon and (b) such other documentation as we require, in form
satisfactory to us in all respects. You will maintain all shipping documents,
delivery receipts and invoices relating to Assigned Accounts, available for
inspection and copying by us, and you will deliver them to us promptly upon our
request. Each sale of Accounts will be reflected as a sale on your books and
financial statements in accordance with generally accepted accounting
principles.
1.5. Exclusivity. During the Term of this Agreement, you will not sell,
factor, assign, or pledge any of your Accounts except to us or for our benefit
under this Agreement,
2. FEES AND PAYMENT
2.1. Purchase Price. The purchase price payable by us for each Assigned
Account (the "PURCHASE Price') shall be an amount equal to the net face value of
the Account less the sum of the applicable Discount Fee and the applicable
Processing Fee (subject to the adjustments provided in Paragraph 2.3).
2.2. Fees. As used herein with respect to any Assigned Account, the
following terms have the following meanings:
2.2.1. "DISCOUNT FEE" means an amount equal to one percent (1.0%) of
our Advance Payment in respect of such Account for each period of thirty (30)
days or any portion thereof elapsing from and including the date of our
acceptance of the Account to and including the date on which we shall have
collected the Account in full in good funds, provided that in no event shall the
Discount Fee be less then twenty-five dollars ($25.00). Notwithstanding the
foregoing, if we elect to require you to repurchase any Assigned Account
pursuant to the provisions of Paragraph 4.1, the Discount Fee for such purposes
shall be
2.2.2. "PROCESSING FEE" means an administrative services fee at a
fluctuating rate per annum equal to two percent (2.0%) plus the WSJ Prime Rate
in effect from time to time calculated on the principal amount of our Advance
Payment and accruing over the period elapsing from and including the date of our
acceptance of the Account to and including the date on which we shall have
collected the Account in full in good funds. As used herein, "WSJ PRIME RATE"
means the consensus prime rate published by The Wall Street Journal from time to
time. For purposes of our Processing Fee, any change in the WSJ Prime Rate shall
take effect on the day immediately following the date of publication of such
change.
2.3. Payment.
2.3.1. Upon our acceptance of each Assignment, we will pay to you on
account of the Purchase Price an amount equal to eighty-five percent (85%) (the
"Advance RATE') of the aggregate net face value of the Assigned Accounts covered
thereby (the "Advance Payment'); provided, however, that at our election and
upon notice to you at any time after the occurrence of an Event of Default, the
Advance Rate shall be reduced by thirty percent (30%) (or such lesser percentage
as we in our sole and absolute discretion may determine) for any or all
subsequent Assignments or individual Assigned Accounts. On or before the fifth
business day following the date on which we have collected all of such Assigned
Accounts in full in good funds, we will pay to you the balance of the Purchase
Price for the Assigned Accounts minus all returns, credits, allowances and
discounts on the shortest or, at our option, on any alternative terms of sale
offered by you to Account Debtors, and all other unpaid sums, liabilities, and
Obligations with respect to the Assigned Accounts charged or chargeable to your
account under Section 3 or otherwise under this Agreement (Chargebacks').
2.3.2. Upon our receipt of any payment with respect to an Account
other than an Assigned Account, so long as you are not in default of any your
Obligations hereunder, we shall remit such payment to you or, at your request,
apply such payment as you may direct, subject to any then outstanding
Chargebacks. Remittances required by this subparagraph 2.3.2 will be paid to you
weekly except as otherwise directed by you.
2.4. Minimum Volume Fee. Any provision of this Agreement to the contrary
notwithstanding, if as of the close of any month the average monthly aggregate
net face value of all Accounts offered by you and purchased by us during the
three-month period then ended is less than $750,000 (the "GUARANTEED MONTHLY
VOLUME'), you will pay to us as a supplemental fee for the month then ended an
amount equal to the Discount Fee we would have earned on the difference,
assuming collection within 30 days (the "MINIMUM VOLUME FEE').
2.5. Noncompliance Fees. Without limiting any of our general rights and
remedies for breaches of this Agreement by you:
2.5.1. If you fail for any reason to include the legend required by
the last sentence of Subparagraph 3.1.1 on any invoice representing an Account,
we will assess and you will pay on demand a missing notation fee in the amount
of fifteen percent (15%) of the net face value of such Account.
2.5.2. If you receive any payment on an Account and fail to comply
with the provisions of Subparagraph 3.1.3, we will assess and you will pay on
demand a misdirected payment fee in the amount of fifteen percent (15%) of the
net face value of such Account
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2.6. Exit Fee. If you elect to terminate this Agreement pursuant to
Subparagraph 8.2.1 and the effective date of termination is other than the last
day of the initial term or any renewal term, as the case may be, you will pay to
us on or before the termination date an exit fee equal to the Discount Fees we
would have earned each month on the Guaranteed Monthly Volume (assuming
collection within 30 days) multiplied by the number of months remaining in the
term, duly prorated as necessary for any partial months. Such fee shall be in
addition to, and not in lieu of, the Minimum Volume Fee, if any, assessable for
the month in which this Agreement is terminated.
2.7. Charqe in Lieu of Payment. In our sole discretion, we may charge
your account for all fees and other amounts you are required to pay us under
this section.
3. COLLECTION OF ACCOUNTS
3.1. Collection Procedure.
3.1.1. During the term of this Agreement and continuing until all
Assigned Accounts and all of your Obligations hereunder have been paid fully
paid and performed, you shall promptly (and we at our option may) notify in
writing all persons obligated to make payments on or with respect to any Account
(collectively, "Account Debtors') (i) that you have granted to us a security
interest in the Account or, if applicable, that the Account has been sold and
that the amount due or to become due has been assigned to us, (ii) that payment
is to be made to us (and not to you) into a designated lockbox over which we
have exclusive dominion, control and power of access and withdrawal (a
(degree)lockbox(degree)), and (iii) that all checks and other items of payment
in respect of the Account are to be made payable to our order. You will (and we
at our option may) obtain from each Account Debtor written acknowledgment by
such Account Debtor confirming its receipt of such notice. On and after the date
hereof, you shall also include such notice plainly and conspicuously as a legend
on the face of each invoice you issue representing an Assigned Account.
3.1.2. You hereby authorize us at our option and in our sole
discretion to collect and receive payments directly from Account Debtors in our
own name. If we elect to exercise this option with respect to any Account, you
shall (and we at our option may) include in the notices required under
Subparagraph 3.1.1 a further statement that the Account represented thereby has
been sold and assigned to us and that the Account Debtor shall make all checks
in respect of the Account payable to us or our designee.
3.1.3. If you receive any payment on any Account, you shall
immediately remit such payment in the form received (with any necessary
endorsement) directly to us. Until so remitted, you will hold such payment in
trust for us separate and apart from all of your other funds.
3.2. Power of Attorney. You hereby irrevocably constitute and appoint us,
or any of our agents or employees, as your lawful attorney-infact (without
requiring us to act as such), coupled with an interest, to exercise at any time
any of the following powers: (i) to receive, endorse and deposit all payments
from Account Debtors; (ii) to transmit to any party the notices required by
Subparagraph 3.1.1; (iii) to institute any proceedings deemed by us necessary to
effect collection of Accounts; (iv) to settle, compromise or litigate any
dispute concerning any Account; and (v) to execute in your name such documents,
instruments and affidavits as we may require from time to time in order to
evidence and perfect our security interest in the Collateral or (without waiving
your representation in Subparagraph 5.5.5) to satisfy any statutory condition to
payment of an Account under applicable law. Any act of ours as your lawful
attorney-in-fact shall not render us liable for any acts of omission or
commission, nor for any error of judgment or mistake of fact or law.
3.3. Costs and Expenses. You will reimburse us on demand for any and all
fees, costs, and expenses (including but not limited to reasonable attorneys'
fees) incurred by us in connection with protecting, maintaining, preserving or
enforcing your Accounts and/or our rights under this Agreement; making lien or
title examinations or filing notices with respect to your Accounts; defending or
prosecuting any action or proceeding related to this Agreement; and filing and
recording financing statements (including amendments thereto and continuation
statements thereof) and termination statements under the UCC relating to our
security interest in the Collateral.
3.4. Disputes. You will notify us promptly of any Dispute concerning an
Account. If we request you to do so, you will use your best efforts to settle
the Dispute. Alternatively, we may (but shall be under no obligation to) attempt
to settle, compromise or litigate the Dispute upon such terms as we in our sole
discretion deem advisable, for your account and risk and at your sole expense.
In no event shall you shall settle, compromise or adjust any Account or grant
any additional discounts, allowances or credits thereon without in each case our
prior written consent. As used herein, "Dispute" means any actual or alleged
defense, counterclaim, offset, dispute or other claim asserted by the Account
Debtor with respect to an Account other than the Account Debtor's Insolvency.
'INSOLVENCY," with respect to an Account Debtor means the financial inability of
an Account Debtor to make payment at maturity unless the relevant Account is the
subject of a Dispute.
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3.5. Indemnification. You will indemnify and defend us and hold us
harmless from and against any and all liabilities, claims, costs and expenses
(including but not limited to reasonable attorneys' fees and court costs)
related to or arising out of our commercially reasonable efforts to collect or
attempt to collect any Account.
3.6. No Agency. Any provision of this Agreement to the contrary
notwithstanding, nothing in this Agreement shall be construed to constitute us
as your agent or to obligate us to assume any of your obligations with respect
to any Account. We will not have any liability for any error or omission or
delay occurring in the settlement, collection or payment of any Account.
4. RECOURSE
4.1. Repurchase of Accounts. In the event that (a) an Assigned Account
becomes the subject of a Dispute, (b) there exists any breach of your
representations, warranties or covenants under this Agreement with respect to an
Assigned Account, (c) an Assigned Account is not paid on or before the
expiration of ninety (90) days from its invoice date (such an Account being
hereinafter referred to as a "Late Account"), or (d) we reasonably deem
ourselves insecure with respect to any Assigned Account in light of material
changes in the creditworthiness of the Account Debtor or otherwise, then and in
any such event you shall immediately upon demand by us (whether written or oral)
repurchase the Account from us for a purchase price equal to the amount of the
Advance Payment for such Account plus the applicable Discount Fee (calculated to
the date of repurchase) together with any and all other costs expenses
associated with such Account minus the paid portion of the Account, if any (the
"ACCOUNT REPURCHASE Price'). With respect to any Assigned Account that becomes
the subject of a Dispute, your obligations under this paragraph are irrespective
of any accord and satisfaction of such Account as against the Account Debtor by
operation of Section 3-311 of the Uniform Commercial Code as adopted and in
effect in the applicable jurisdiction (the "UCC').
4.2. Repurchase on Default. Without limiting our other remedies under
this Agreement or applicable law, upon the occurrence of an Event of Default as
hereinafter defined, you shall immediately upon demand by us (whether written or
oral) repurchase from us all outstanding Assigned Accounts for the aggregate
Account Repurchase Price calculated in accordance with Paragraph 4.1
5. REPRESENTATIONS AND WARRANTIES
To induce us to purchase Accounts from time to time, you make the following
representations and warranties, each of which will survive the execution and
delivery of this Agreement and will be deemed to be continuous and renewed as of
the date of our acceptance of each Assignment. Such representations and
warranties shall survive the termination of this Agreement.
5.1. General. You are a corporation duly organized, existing and in good
standing under the laws of Delaware. The preamble to this agreement sets forth
truly and accurately your exact legal name as registered in such jurisdiction.
You do business exclusively under such name and do not use any trade name or
other fictitious name.
5.2. Authority and Enforceability. You represent and warrant that you
have all requisite power and authority to execute, deliver and perform this
Agreement, including each Assignment delivered hereunder. This Agreement has
been duly and validly executed and delivered by you and constitutes your legal,
valid, and binding obligation enforceable against you in accordance with its
terms. The execution, delivery and performance of this Agreement by you does not
contravene your articles of incorporation, by-laws or operating or partnership
agreement, as applicable, or any other agreement, instrument, or commitment to
which you are a party or by which you or any of your assets or properties are
bound.
5.3. Place of Business. Your principal place of business and your books
and records relating to the Accounts are located at the address set forth at the
end of this Agreement.
5.4. Collateral. You are the sole owner of the Collateral free and clear
of all liens and encumbrances (including liens and encumbrances subordinate to
our lien and security interest), except for those created by this Agreement or
permitted by us in writing. Except as otherwise disclosed on Schedule 5.4
attached and made a part hereof, none of your inventory is stored with a bailee,
warehouseman or similar party or is under consignment to or from any person. All
of your inventory is currently salable or usable in the normal course of your
business.
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5.5. With Respect to Accounts. With respect to each Assigned Account, you
represent and warrant that:
5.5.1. You are the sole owner of the Account free and clear of all
liens and encumbrances (including liens and encumbrances subordinate to our lien
and security interest), except for those created by this Agreement or permitted
by us in writing.
5.5.2. You are not affiliated with and do not own, control, or
exercise dominion, in any way whatsoever, over the business of the Account
Debtor.
5.5.3. The Account represents an accurate and undisputed statement
of indebtedness of the Account Debtor on account of a bona fide sale or lease of
goods or the performance of services by you.
5.5.4. The Account is the valid obligation of and is legally binding
upon the Account Debtor enforceable against the Account Debtor in accordance
with its terms. All signatures and endorsements appearing on the invoices and
documents relating to the Accounts are genuine, and all signatories and
endorsers have full capacity and authority and were fully authorized to contract
for the purchase or lease of the goods and/or services giving rise to the
Account.
5.5.5. The Account is not subject to any Dispute, defense, offset,
counterclaim or any allowance, deduction, contingency or condition.
5.5.6. The Account is not on a bill-and-hold, guaranteed sale,
sale-and-return, sale on approval, consignment or any other repurchase or return
basis.
5.5.7. To the best of your knowledge based on due inquiry, the
Account Debtor is not Insolvent.
5.5.8. The sale of the Account to us is accurately and properly
entered and reflected on your books and records.
6. COVENANTS
6.1. Periodic Reports. Until full and indefeasible payment of all of your
Obligations hereunder, you will furnish to us the following information
regarding your operations and financial condition from time to time as
specified:
6.1.1. Within twenty (20) days after the close of each month a
balance sheet, income statement, and cash flow statement as of the last day of
such month and year to date;
6.1.2. Within five (5) days after the close of each month, (a) an
accounts payable aging and list and (b) an accounts receivable aging and list
(whether or not such accounts are Assigned Accounts), in each case as of the
last day of such month, in such form and containing such detail as we may
reasonably require;
6.1.3. Copies of all receipts and other evidence of your payment of
United States withholding, as such payments are made; and
6.1.4. Within ninety (90) days following the close of your fiscal
year, a balance sheet and income statement as of the close of such fiscal year
and for the year then ended.
6.2. Standards. All financial statements provided by you under this
Section 6 shall be prepared in accordance with generally accepted accounting
principles, consistently applied. You hereby represent and warrant that any and
all financial statements provided by you are and shall be true, accurate and
complete.
6.3. Field Audits. Upon reasonable notice by us, you will permit any
authorized representative designated by us to visit your place or places of
business during business hours and to inspect your books of account, records,
correspondence and other documents and to make copies thereof and extracts
therefrom. . . Any such inspection conducted after an Event of Default shall be
at your sole cost and expense and you will reimburse us for such costs and
expenses on demand.
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6.4. Other Covenants. Until full and indefeasible payment of all of your
Obligations hereunder:
6.4.1. You shall:
6.4.1.1. Comply in all material respects with all applicable
laws, rules, regulations and orders applicable to your business;
6.4.1.2. Maintain insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks as
is consistent with past practice and/or as is usually carried by companies
engaged in similar businesses in the same general areas in which you operate;
6.4.1.3. Maintain and preserve of your assets and properties,
real and personal, in good working order and condition, ordinary wear and tear
excepted;
6.4.1.4. Preserve and maintain your corporate existence and
good standing, rights, franchises and privileges under applicable law;
6.4.1.5. Pay and discharge before the same shall become
delinquent (i) all taxes, assessments and governmental charges or levies imposed
upon you or your property, and (ii) all lawful claims which, if unpaid, might by
operation of law or otherwise become a lien upon your property;
6.4.1.6. Maintain yourself in good standing with any and all
federal and state licensing and regulatory authorities and governmental agencies
having jurisdiction over your activities; and
6.4.1.7. Comply fully with all laws, rules, regulations, and
executive orders of federal, state and municipal governments, bureaus,
commissions, agencies or any of them applicable to you or your assets or
properties.
6.4.2. Without our prior written consent, which will not be
unreasonably withheld. you shall not:
6.4.2.1. Permit or consent to the creation or incurrence by
you of any indebtedness or obligation for borrowed money, other than to us
pursuant to this Agreement;
6.4.2.2. Make any material change in the nature of your
business; or
6.4.2.3. Merge or consolidate with any other firm or
corporation.
6.4.2.4. Grant, create, incur or suffer or permit to exist any
mortgage, pledge, security interest in or lien upon, or for any other purpose
assign or transfer, either absolutely or as collateral security, any of the
Collateral except to or in favor of us pursuant to this Agreement or as we may
otherwise agree in writing.
7. SECURITY AGREEMENT
7.1. Grant of Security Interest; Collateral Defined. To secure payment
and performance of all of your obligations under this Agreement, including,
without limitation, repurchase and indemnity obligations and obligations for
costs and expenses (collectively, your "OBLIGATIONS'), you hereby pledge, assign
and grant to us a continuing lien and security interest in the following
property, both now owned and existing and hereafter created, acquired and
arising, regardless of where located (collectively, the "COLLATERAL'):
7.1.1. All of your accounts whether or not accepted by us or
specifically sold to us;
7.1.2. All of your goods, including but not limited to inventory and
equipment;
7.1.3. All of your general intangibles, chattel paper, commercial
tort claims, deposit accounts, documents, instruments, investment property,
letter-of-credit rights, letters of credit, and money;
7.1.4. All cash and non-cash proceeds and products of any of the
foregoing, including any claim against third parties in any way related to the
foregoing;
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7.1.5. All rights which you now have or hereafter may have to the
payment of money not otherwise included in the foregoing, including without
limitation tax refunds and proceeds of insurance of every kind and description;
and
7.1.6. All books and records relating to any of the foregoing,
including but not limited to hard drives, compact disks, floppy disks, and/or
other digital storage media comprising such records in whole or in part.
7.2. Financing Statements. Pursuant to Section 9-502 of the UCC, you
hereby authorize us to file such financing statements (including amendments
thereto and continuation statements thereof) as we may reasonably require in
order to perfect our security interest in the Collateral
7.3. Defined Terms. As used in this Section, uncapitalized terms
describing categories of Collateral shall have the meaning, if any, respectively
ascribed to such terms under the UCC.
8. TERM AND TERMINATION
8.1. Initial Term; Renewal. The term of this Agreement shall be one (1)
year, commencing on the date of the first above written. Unless terminated in
accordance with Paragraph 8.2, this Agreement shall automatically renew for
successive one (1) year periods without the necessity of any further notice or
action on the part of either party hereto. (The period of effectiveness of this
Agreement, including the initial term and any renewal term, is sometimes
referred to herein as the' Term.')
8.2. Termination.
8.2.1. Subject to Paragraph 2.6, you may terminate this Agreement by
written notice to us not less than sixty (60) days prior to the effective date
of termination stipulated in such notice.
8.2.2. We may terminate this Agreement (i) at any time for our
convenience by written notice to you upon not less than sixty (60) days prior to
the effective date of termination stipulated in such notice or (ii) immediately
upon written or oral notice to you upon the occurrence of an Event of Default.
8.3. Survival of Terms. Notwithstanding the foregoing, the provisions of
this Agreement and all of our rights and interests hereunder shall survive any
termination pursuant to Paragraph 8.2 and shall continue in full force and
effect until all Assigned Accounts and all of your Obligations hereunder have
been paid fully paid and performed.
8.4. Termination Statement. At any time after later of (i) the effective
date of the termination of this Agreement or (ii) the date on which all Assigned
Accounts and all of your Obligations hereunder have been paid fully paid and
performed, you may request and we will deliver to you UCC termination statements
with respect to any and all recorded financing statements covering the
Collateral then in our favor, provided such request is in writing and
accompanied by a written general release by you in our favor in form and
substance satisfactory to us and our counsel. To the maximum extent permitted by
law, you hereby waive any and all statutory rights under Section 9-509 of the
UCC to require us to deliver UCC termination statements in respect of the
Collateral unless and until the conditions of this section have been satisfied.
9. DEFAULT AND REMEDIES
9.1. Events of Default. As used in this Agreement, "EVENT OF Default"
means any of the following:
9.1.1. Any material breach by either of you of any term, covenant,
condition, representation or warranty under this Agreement.
9.1.2. Without limiting the generality of the foregoing, the
existence of unresolved Disputes or any breach or breaches of your
representations, warranties or covenants under this Agreement affecting or with
respect to Assigned Accounts which, in the aggregate, constitute or exceed
thirty percent (30%) (the "DEFAULT PERCENTAGE"), by face value or number, of all
then outstanding Assigned Accounts.
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9.1.3. The accumulation of Late Accounts (whether or not then
outstanding) since the commencement of the Term which in the aggregate
constitute or exceed, by face value or number, the Default Percentage of all
Accounts assigned hereunder through date.
9.1.4. Any failure by you to pay or reimburse us, as the case may
be, any monetary amount to which we are entitled hereunder as and when the same
shall become due.
9.1.5. Any material adverse change in the management, financial
condition or business prospects of either of you or those of any guarantor of
your Obligations.
9.1.6. The discontinuance or suspension of any business operation
currently conducted by either of you.
9.1.7. Either of you becoming insolvent or unable to meet your debts
as they mature, or the commencement against either of you of any proceeding for
relief under any provision of any federal or state bankruptcy, insolvency or
other similar law, or the filing or issuance against you of any injunction,
attachment, judgment or lien on any of your property, or the appointment of a
receiver, custodian or trustee of any kind for you or any of your property.
9.2. Remedies, In addition to any other remedies available to us under
this Agreement or applicable law, upon and after the occurrence of an Event of
Default:
9.2.1. We will have the right to enforce against you immediate
payment of all of your Obligations.
9.2.2. With respect to the Collateral, we will have and may exercise
all of the rights of a secured party under the UCC.
9.2.3. You hereby authorize and empower any attorney designated by
us or any clerk of any court of record to appear for you in any court of record
and confess judgment against you without prior hearing, in favor of us for and
in the amount of your Obligations then outstanding plus costs of suit and
attorneys' fees in an amount equal to 10% of the Obligations then outstanding.
Such authority and power may be exercised on one or more occasions, from time to
time, in the same or different jurisdictions, as often as we shall deem
necessary or desirable, for all of which this Agreement shall be a sufficient
warrant.
9.2.4. We may notify the postal authorities to change the address
for delivery of your mail to such address as we may designate and shall have the
right to receive, open, and maintain in our custody any and all of your mail
thereafter; provided, however, that we will turn over to you any mail not
related directly or indirectly to the enforcement of our remedies hereunder.
9.3. Remedies Cumulative. Each right, power and remedy provided for
herein or otherwise existing shall be cumulative and concurrent and shall be in
addition to every other right, power and remedy existing hereunder, by law or
otherwise. The exercise by us of any one or more such rights, powers or remedies
shall not preclude the simultaneous or later exercise by us of any or all such
other rights, powers or remedies.
9.4. Liability Joint and Several. The liability of each of you with
respect to the Obligations shall be joint and several. The breach by either of
you (the "BREACHING PARTY") of an Obligation shall constitute an Event of
Default with respect to both of you and each of you shall be primarily liable
therefor. Upon any such breach, our right to avail ourselves of our remedies
hereunder with respect to the non-Breaching Party and its Collateral shall in no
way be conditioned upon or limited by any attempt by us to collect from the
Breaching Party or any resort or recourse by us to any Collateral pledged by the
Breaching Party.
8
10. ARBITRATION
Any claim or demand arising out of any alleged breach of this Agreement or
arising out of any dispute or controversy under or relating to this Agreement in
which the amount in controversy is $100,000 or less, other than any confession
of judgment proceeding pursuant to Subparagraph 9.2.3, shall be decided by a
single arbitrator under the Rules of the American Arbitration Association. The
prevailing party, as determined by the arbitrator, shall be awarded reasonable
attorneys' fees and costs (including all arbitration fees and expenses of the
arbitrator) incurred by that party in connection with the arbitration and any
postarbitration proceedings to enforce the award or otherwise. The award
rendered by the arbitrator shall be final and binding on both of us and judgment
on such award may be entered by either party in any court of competent
jurisdiction. The arbitration provisions hereof shall, with respect to such
controversy or dispute, survive the termination of this Agreement. Nothing
herein contained shall be deemed to give the arbitrator any authority, power, or
right to alter, change, amend, modify, add to, or subtract from any of the
provisions of this Agreement.
11. MISCELLANEOUS
11.1. Notices. Notices shall be deemed given to a party when sent or
dispatched to such party by certified or registered mail or private overnight
express mail, postage or charges prepaid, or by facsimile copy, at the address
of such party set forth below its signature hereto, or to such other notice
address as a party may designate by written notice to the other party.
11.2. Binding Effect. This Agreement will bind you and your successors and
assigns, and will inure to the benefit of us and our successors and assigns.
11.3. No Assiqnment. You may not assign or transfer any of your rights or
obligations under this Agreement without our prior written consent, which
consent may be withheld by us in our sole and absolute discretion. Any
assignment or transfer prohibited by this paragraph shall be null and void.
11.4. Complete Agreement. This Agreement and the related Assignments
constitute the entire agreement between us with respect to the subject matter
hereof and all previous agreements or discussions between us relating to the
subject matter hereof, written or oral, are hereby terminated and/or superseded
by this Agreement. This Agreement may be amended or modified only by a written
instrument signed by both parties.
11.5. No Waiver. No delay or failure by us in exercising any of our rights
or remedies shall operate as a waiver of such or of any other right or remedy,
and no waiver shall be valid unless in writing signed by us and then only to the
extent therein set forth.
11.6. Governinq Law, Etc. This Agreement shall be deemed to have been made
in the State of Maryland and shall be construed and enforced in accordance with,
and the validity and performance hereof shall be governed by, the laws of the
State of Maryland, without regard to conflict of laws principles.
11.7. Venue and Jurisdiction. Any judicial or arbitral proceeding arising
out of or relating to this Agreement shall be brought and adjudicated (a) in the
case of any Original Claim made by you against us, solely in Baltimore,
Maryland, and (b) in the case of any Original Claim made by us against you, in
Baltimore, Maryland, or, at our sole and exclusive option, anywhere within the
jurisdiction where you are domiciled or have your principal place of business.
As used in this Paragraph, "ORIGINAL CLAIM" means the first formally commenced
proceeding in connection with a matter or series of related matters, it being
understood and agreed that any subsequently asserted claim, defense or
counterclaim arising out of or relating to such matter or matters shall be
subject to the same venue as the Original Claim. For purposes of any judicial
proceeding under this Agreement, you hereby irrevocably consent, submit, and
waive any and all objections to the personal jurisdiction of the state and
federal courts of the State of Maryland over you and your affiliates.
11.8. Further Assurances. Each of us shall do, take, execute, acknowledge
if required and deliver such further and additional acts, actions, documents,
instruments or writings not specifically referred to herein as may be necessary,
required, proper, desirable or convenient for the purpose of fully effectuating
the provisions hereof.
11.9. Construction. This Agreement has been negotiated by the parties and
shall be construed and interpreted fairly in accordance with its terms and
without any strict construction in favor of or against either party.
11.10. WAIVER OF JURY TRIAL. EXCEPT AS OTHERWISE PROVIDED IN SECTION 10,
ANY SUIT, ACTION OR PROCEEDING, WHETHER CLAIM OR COUNTERCLAIM, BROUGHT OR
INSTITUTED BY EITHER PARTY HERETO OR ANY SUCCESSOR OR ASSIGN OF ANY PARTY UNDER
OR WITH RESPECT TO THIS AGREEMENT OR WHICH IN ANY WAY RELATES, DIRECTLY OR
INDIRECTLY, TO THIS AGREEMENT OR ANY EVENT, TRANSACTION OR OCCURRENCE ARISING
OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, OR THE DEALINGS OF THE
PARTIES WITH RESPECT THERETO, SHALL BE TRIED ONLY BY A COURT AND NOT BY A JURY.
EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVES ANY RIGHT TO A
TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR PROCEEDING.
9
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the day and year first above written.
ASSIGNOR:
ACORN HOLDING CORP. ROCKLAND CREDIT FINANCE LLC
By_____________________________(SEAL) By___________________________(SEAL)
[notarized signature of
authorized officer] Name:______________________________
Print Name:__________________________ Title:_____________________________
Title:_______________________________ 6 Park Center Court, Suite 212
Owings Mills, MD 21117
Address:_____________________________ Phone #: 410-902-0393
_____________________________________ Fax #: 410- 902-0893
_____________________________________
Fax #:_______________________________
Taxpayer I.D./SSN ff:________________
VALENTEC SYSTEMS, INC.
By___________________________________
_______________________________(SEAL)
[notarized signature of
authorized officer]
Print Name:__________________________
Title:_______________________________
Address:_____________________________
_____________________________________
_____________________________________
Fax #:_______________________________
Taxpayer I.D./SSN #:_________________
State of ________)
) TO WIT:
County of _______)
I HEREBY CERTIFY that on this day of ________, 2005, before me, a Notary
Public of said State, personally appeared ____________________________, known to
me (or satisfactorily proven) to be the _____________________ of Acorn Holding
Corp., whose name is subscribed to the foregoing Agreement and who acknowledged
that he/she executed the same for the purposes therein contained.
WITNESS my hand and Notarial Seal.
___________________________________
Notary Public
My Commission Expires:
10
State of_________)
) TO WIT:
WIT: County of___)
I HEREBY CERTIFY that on this _ day of______________, 2005, before me, a
Notary Public of said State, personally appeared _________________________,
known to me (or satisfactorily proven) to be the____of Valentec, Inc., whose
name is subscribed to the foregoing Agreement and who acknowledged that he/she
executed the same for the purposes therein contained.
WITNESS my hand and Notarial Seal.
___________________________________
Notary Public
My Commission Expires:
11
EXHIBIT A
TO MASTER FACTORING AGREEMENT
FORM OF ASSIGNMENT
See attached.
12
ASSIGNMENT NO.
ASSIGNMENT AND TRANSFER OF ACCOUNTS RECEIVABLE
ASSIGNOR: Valentec Systems, Inc. ASSIGNEE:
Acorn Holding Corp.
ROCKLAND CREDIT FINANCE LLC
6 Park Center Court, Suite 212
Owings Mills, MD 21117
1. Assignment of Accounts. Pursuant to and subject to the terms and
conditions of that certain Master Factoring Agreement between Assignor and
Assignee (the "FACTORING AGREEMENT"), Assignor hereby sells, assigns and
transfers to Assignee all of its right, title and interest in and to the
Accounts arising from the invoices identified in Schedule A .
2. Advance Payment: Assignor hereby acknowledges and confirms the
payment by Assignee and the receipt by Assignor of the Advance Payment shown on
Schedule A.
3. Representations and Warranties. Assignor hereby confirms, represents
and warrants to Assignee that all representations and warranties made by
Assignor to Assignee in the Factoring Agreement are true and correct in all
respects on Effective Date of this Assignment and that no Default exists under
the Factoring Agreement on Effective Date.
4. Effective Date. The effective date of the transfer of the Assigned
accounts pursuant to this Assignment (the "EFFECTIVE DATE") shall be the date
set forth below as the effective date of Assignee's acceptance.
5. Defined Terms. Capitalized terms used herein and not defined herein
shall have the respective meanings ascribed to such terms in the Factoring
Agreement.
IN WITNESS WHEREOF, the parties have executed this Assignment
intending to be legally bound as of the Effective Date.
ASSIGNOR: VALENTEC SYSTEMS, INC. ROCKLAND CREDIT FINANCE LLC
ACORN HOLDING CORP.
_____________________________________
[full corp rate name of Assignor] By_________________________________
By___________________________________ Name:______________________________
[signature of authtiri ed officer]
Title:_____________________________
Print Name:__________________________ Effective Date of Acceptance:______
Title:_______________________________
1
SCHEDULE A
TO ASSIGNMENT AND TRANSFER OF ACCOUNTS RECEIVABLE
Assignor: Valentec Systems, Inc./Acorn Holding Corp.
Assignment #:________________________
Effective Date:______________________
ASSIGNED ACCOUNTS
The Account(s) identified below and on the invoices, contracts and/or other
evidence thereof attached hereto, if any, is/are being sold, assigned and
transferred by Assignor to ROCKLAND CREDIT FINANCE LLC pursuant to the foregoing
Assignment.
ACCOUNT DEBTOR INVOICE INVOICE P.O./CONTRACT NET FACE TERMS OF
(CUSTOMER) NO. DATE NO. AMOUNT($) SALE
-------------- ------- ------- ------------- ---------- ---------
(A) TOTAL AMOUNT OF THIS ASSIGNMENT: $
(B) ADVANCE RATE: __%
(C) TOTAL ADVANCE REQUESTED (LINE A X LINE B): $_____________
2
SCHEDULE 5.4
INVENTORY STORED WITH THIRD PARTY, BAILEE, WAREHOUSEMAN OR CONSIGNEE
Name of Baileel Address of Third Party
Warehousman/Consignee Location of Inventory if Other Than Location of
Inventory
1.___________________ _______________________ ___________________________
_______________________ ___________________________
Contact:___________________
Phone #:___________________
Fax #______________________
Email Address:_____________
2.___________________ _______________________ ___________________________
_______________________ ___________________________
Contact:___________________
Phone #:___________________
Fax #______________________
Email Address:_____________
3.___________________ _______________________ ___________________________
_______________________ ___________________________
Contact:___________________
Phone #:___________________
Fax #______________________
Email Address:_____________
4.___________________ _______________________ ___________________________
_______________________ ___________________________
Contact:___________________
Phone #:___________________
Fax #______________________
Email Address:_____________
3