ACTIVE LINK COMMUNICATIONS, INC.
FORM 10-KSB
EXHIBIT 10 (j.1)
ASSIGNMENT OF ACCOUNTS AND SECURITY AGREEMENT
THIS ASSIGNMENT OF ACCOUNTS AND SECURITY AGREEMENT is made as of
December 21, 2001 by and between Mobility Concepts, Inc., a Wisconsin
corporation, ("Seller") and Spectrum Commercial Services 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:
"Account" - means any right to payment of the net amount due
from a customer for sales of goods or performance of services to such customer
whether performed or yet to be performed.
"Accounts Schedule" - a form supplied by Purchaser from time
to time wherein Seller lists such of its Account as it requests that Purchaser
purchase under the terms of this Agreement.
"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 or arising:
All accounts (including, but not limited to, accounts
purchased by Purchaser hereunder and repurchased by Seller), chattel paper,
general intangibles, including, but not limited to, tax refunds, registered and
unregistered patents, trademarks, service marks, copyrights, trade names, trade
secrets, customer lists, licenses, documents, instruments, deposit accounts,
certificates of deposit, and all rights of Seller as a seller of goods,
including rights of reclamation, replevin and stoppage in transit;
All goods, including, but not limited to the following:
All inventory, wherever located;
All equipment and fixtures, wherever located, and all
additions, substitutions, replacements (including spare parts), and accessions
thereof and thereto; and
All book and records relating to all of the foregoing property
and interests in property, including, without limitation, all computer programs,
printed output and computer readable data in the possession or control of the
Seller, any computer service bureau or other third party;
All investment property; and
All proceeds of the foregoing, including, but not limited to,
all insurance proceeds, all claims against third parties for loss or destruction
of or damage to any of the foregoing, and all income from the lease or rental of
any of the foregoing.
"Commitment Amount" - Three Million Dollars ($3,000,000) in
gross invoice purchases.
"Eligible Account" - an Account which is acceptable for
purchase as determined by Purchaser in the exercise of its sole credit or
business judgment.
"Events of Default" - See Section 12.1.
"High Month" - Any month(s) where, prior to the start of such
month(s), Seller notifies Purchaser in writing that such month will be
considered a "High Month".
"Initial Fee" - the Initial Fee Percent multiplied by the
original Face Amount of each Purchased Amount multiplied by the lesser of (i)
the number of days the Purchased Amount remains unpaid; or (ii) thirty (30)
days.
"Initial Fee Percent - Low Month" - .0584% per calendar day.
"Initial Fee Percent - High Month" - .050% per calendar day.
"Late Charge Percent - Low Month" - .0584% per calendar day.
"Late Charge Percent - High Month" - .050% per calendar day.
"Late Charge" - The Late Charge Percent multiplied by the
original Face Amount of each Purchased Amount for every calendar day (or portion
thereof) which occurs after the Late Payment Date.
"Late Payment Date" - the date which is 30 days from the date
on which a Purchased Account was created.
"Low Month" - Any month(s) where, prior to the start of such
month(s), Seller HAS NOT notified Purchaser in writing that such month will be
considered a "High Month".
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"Minimum Monthly Fee" - $12,250 for each whole or partial Low
Month and $26,250 for each whole or partial High Month that this agreement is in
force.
"Misdirected Payment Fee" - fifteen percent (15%) of the
amount of any payment on account of a Purchased Account which has been received
by Seller and not delivered in kind to Purchaser on the next banking day
following the date of receipt by Seller.
"Notation" - "This account has been assigned and is payable
directly to SPECTRUM Commercial Services Company located at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, #▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, to whom notice of any claim or dispute must
be advised, either in writing or by telephone (▇▇▇-▇▇▇-▇▇▇▇)".
"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 this agreement, letters of credit or acceptance
transactions or any other financial accommodations; and all principal, interest,
fees, Late Charges, Initial Fees, Service Charges, expenses, attorneys' fees and
accountants' fees chargeable to Seller or incurred by Purchaser in connection
with this Agreement and/or the transaction(s) related thereto;
"Parties" - Seller and Purchaser.
"Purchase Price" - the Face Amount, less (i) without
duplication, discounts, returns, credits or allowances of any nature at any time
issued, owing, granted or outstanding, and (ii) the Initial Fee.
"Purchased Accounts" - Accounts purchased hereunder which have
not been Repurchased.
"Repurchased" - an Account has been repurchased when Seller
has paid to Purchaser the then unpaid Face Amount upon demand by Purchaser under
the terms hereof.
"Required Reserve Amount" - the Reserve Percentage multiplied
by the unpaid balance of the Purchased Accounts.
"Reserve Percentage" - Twenty percent (20%).
"Reserve Shortfall" - the amount by which the Reserve Account
is less than the Required Reserve Amount.
"Reserve Shortfall Charge" - the Late Charge Percent converted
to a daily charge (if appropriate), multiplied by a factor of two, and again
multiplied by the Reserve Shortfall for every day during which the Reserve
Shortfall is outstanding.
"Seller's Accounts" - any demand deposit account maintained by
Seller.
"Selling Term" - Thirty (30) days, representing the number of
days from the date on which a Purchased Account was created.
"Service Charge" - 50c. per purchased invoice.
"Service Charge Percent" - Not applicable
2. Sale; Purchase Price; Billing; Reserve.
2.1 Assignment and Sale.
2.1.1 Seller shall sell to Purchaser as absolute owner,
with full recourse, such of Seller's Accounts as are
listed from time to time on Accounts Schedule.
2.1.2 Each Accounts Schedule shall be accompanied by such
documentation supporting and evidencing the Account
as Purchaser shall from time to time request.
2.1.3 Purchaser may purchase from Seller such Accounts as
Purchaser determined to be an Eligible Account, so
long as the total outstanding Face Amount of
Purchased Accounts does not exceed the Commitment
Amount both before and after such purchase. However,
Purchaser reserves the absolute right not to purchase
any or all accounts or account schedules including
the right to cease all future such purchases in its
sole discretion.
2.1.4 Purchaser shall pay the Purchase Price, less the
Required Reserve Amount, less any amounts due to
Purchaser from Seller, including, without limitation,
any amounts due under Section 2.3.2 hereof, of any
Purchased Amount, to Seller's Account within two (2)
business days of Seller's receipt of an Accounts
Schedule, countersigned by Purchaser, whereupon the
Accounts shall be deemed purchased hereunder.
2.1.5 The sale of the Accounts to Purchaser and Purchaser's
ownership
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thereof will be properly reflected on Sellers books.
2.2 Billing. Purchaser may at any time send a statement to any or
all Account Debtors itemizing their account activity during
the preceding billing period. All Account Debtors will be
instructed to make payment to Purchaser.
2.3 Reserve Account.
2.3.1 Purchaser may apply a portion of any Purchase Price
to the Reserve Account in the amount of the Reserve
Shortfall.
2.3.2 Seller shall pay to Purchaser on demand the amount of
any Reserve Shortfall.
2.3.3 On Wednesday of each week, absent an event of
default, Purchaser shall pay to Seller an amount by
which collected funds in the Reserve Account are
greater than the Required Reserve Amount.
2.3.4 Purchaser may charge the Reserve Account with any
Obligation, including any amounts due from Seller to
Purchaser hereunder.
2.3.5 Purchaser may pay any amounts due Seller hereunder by
a credit to the Reserve Account.
3. Fees. Seller shall pay to Purchaser:
3.1 Service Charge. The Service Charge upon its accrual
3.2 Misdirected Payment Fee. Any Misdirected Payment Fee
immediately upon its accrual.
3.3 Minimum Monthly Fee. Any amount by which the sum of the
Initial Fee and the Service Charge earned in any month
(prorated for partial months) is less than the Minimum Monthly
Fee, to be paid on the first day of the following month.
3.4 Initial Fee. The Initial Fee.
3.5 Late Charge and Reserve Shortfall.
3.5.1 The Late Charge; and
3.5.2 The Reserve Shortfall Charge.
3.6 Origination Fee. As an origination fee, $10,000 upon execution
hereof as well as reimbursement of Purchaser's out of pocket
expenses incurred in the consideration and consummation of
this Agreement.
4. Repurchase of Accounts:
4.1 Purchaser may require that Seller repurchase, by payment of
the unpaid Face Amount thereof together with any unpaid fees
relating to the Purchased Account on demand, or, at
Purchaser's option, by Purchaser's charge to the Reserve
Account:
4.1.1 any Purchased Account, the payment of which has been
disputed by the Account Debtor obligated thereon,
Purchaser being under no obligation to determine the
bona fides of such dispute;
4.1.2 any Purchased Account upon the occurrence of an Event
of Default, or upon the termination date of this
Agreement; and
4.1.3 any goods billed to an account under Purchased
Account either rejected or returned or recovered by
Seller.
4.1.4 any Purchased Account which remains unpaid 60 days
beyond the Late Payment Date.
4.1.5 any Purchased Account found at any time to be
ineligible.
4.2 The repurchase of a Purchased Account shall not constitute a
reassignment of such Account, and a security interest therein
shall remain in the Purchaser.
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5. Security Interest.
5.1 As collateral securing the Obligations, Seller grants to
Purchaser a continuing first priority security interest in,
and right of setoff with respect to, the Collateral. All
collateral shall secure payment and performance of Seller's
obligations at any time owing to Purchaser whether arising
under this agreement or any other.
5.2 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.
6. Clearance Days. For all purposes under this Agreement, zero (0)
business days will be added to the date on which any payment is
received by Purchaser to provide for the collection and clearance of
checks and other instruments deposited.
7. Authorization to Purchaser.
7.1 Seller hereby irrevocably authorizes Purchaser and any
designee of Purchaser, at Seller's sole expense, to exercise
at any time in Purchaser's or such designee's discretion all
or any of the following powers until all of the Obligations
have been paid in full: (a) receive, take, verify, endorse,
assign, deliver, accept and deposit, in the name of the
Purchaser or Seller, any and all cash, checks, commercial
paper, drafts, remittances and other instruments and documents
relating to the Collateral or the proceeds thereof, (b) take
or bring, in the name of Purchaser or Seller, all steps,
actions, suits or proceedings deemed by Purchaser necessary or
desirable to effect collection of or other realization upon
the accounts and other Collateral, (c) after an Event of
Default, change the address for delivery of mail to Seller and
to receive and open mail addressed to Seller, (d) after an
Event of Default, extend the time of payment of, compromise or
settle for cash, credit, return of merchandise, and upon any
terms or conditions, any and all accounts or other Collateral
which includes a monetary obligation and discharge or release
any account debtor or other obligor, without affecting any of
the Obligations, (e) execute in the name of Seller and file
against Seller in favor of Purchaser financing statements or
amendments with respect to the Collateral and any Internal
Revenue Service Form 8821 authorizing the Service to direct
copies of any notices to Purchaser, and (f) pay any sums
necessary to discharge any lien or encumbrance which is senior
to Purchaser's security interest in the Collateral, which sums
shall be included as Obligations hereunder, and in connection
with which sums the Late Charges shall accrue and shall be due
and payable.
7.2 Seller hereby releases and exculpates Purchaser, its officers,
employees and designees, from any liability arising from any
acts under this Agreement or in furtherance thereof whether of
omission or commission, and whether based upon any error of
judgment or mistake of law or fact, except for willful
misconduct. In no event will Purchaser have any liability to
Seller for lost profits or other special or consequential
damages.
8. Covenants by Seller.
8.1 Seller warrants that all Purchased Accounts are and, at the
time of assignment to Purchaser, will be bona fide and
existing obligations of customers arising out of the sale of
goods and/or the provision of services in the ordinary course
of business, free and clear of all setoffs, liens, security
interests and encumbrances.
8.2 After written notice by Purchaser to Seller, and
automatically, without notice, after an Event of Default,
Seller shall not, without the prior written consent of
Purchaser in each instance, (a) grant any extension of time
for payment of any of the accounts or any other Collateral
which includes a monetary obligation, (b) compromise or settle
any of the accounts or any such other Collateral for less than
the full amount thereof, (c) release in whole or in part any
account debtor or other person liable for the payment of any
of the accounts or any such other Collateral, or (d) grant any
credits, discounts, allowances, deduction, return
authorizations or the like with respect to any of the accounts
or any such other Collateral.
8.3 From time to time as requested by Purchaser, at the sole
expense of Seller,
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Purchaser or its designee shall have access, during reasonable
business hours if prior to an Event of Default and at any time
if on or after an Event of Default, to all premises where
Collateral is located for the purposes of inspecting (and
removing, if after the occurrence of an Event of Default) any
of the Collateral, including Seller's books and records, and
Seller shall permit Purchaser or its designee to make copies
of such books and records or extracts therefrom as Purchaser
may request. Without expense to Purchaser, Purchaser may use
any of Seller's personnel, equipment, including computer
equipment, programs, printed output and computer readable
media, supplies and premises for the collection of accounts
and realization on other Collateral as Purchaser, in its sole
discretion, deems appropriate. Seller hereby irrevocably
authorizes all accountants and third parties to disclose and
deliver to Purchaser at Seller's expense all financial
information, books and records, work papers, management
reports and other information in their possession relating to
Seller.
8.4 ANY REMITTANCE OR PAYMENT MADE TO SELLER BY AN ACCOUNT DEBTOR
ON WHICH AN ACCOUNT HAS BEEN ASSIGNED TO PURCHASER, SHALL BE
HELD IN TRUST AS PURCHASER'S PROPERTY AND SELLER PROMISES AND
COVENANTS TO IMMEDIATELY DELIVER SAME TO PURCHASER UNCASHED.
THIS INCLUDES PAYMENTS ON INVOICES WHICH MAY NOT HAVE BEEN
ASSIGNED (FACTORED) BUT ARE NEVERTHELESS FROM AN ACCOUNT
DEBTOR FOR WHICH OTHER INVOICES HAVE BEEN ASSIGNED (FACTORED).
Seller grants to Purchaser power of attorney to endorse
Seller's name on any and all remittances.
8.5 Before sending any invoice evidencing an Account to the
account debtor, Seller shall ▇▇▇▇ same with the Notation, or
such other notation as Purchaser shall have advised Seller in
writing.
8.6 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, and further, upon
Purchaser's request, Seller shall execute and/or authorize all
financing statements and an Internal Revenue Service Form 8821
(authorizing the Service to send copies of notices to
Purchaser).
8.7 Seller shall not, without the prior written consent of
Purchaser suffer to exist any lien (including any encumbrance
or security interest) of any kind upon any of its assets,
whether now owned or hereafter acquired.
8.8 Seller shall maintain insurance on all insurable property
owned or leased by Seller in the manner, to the extent and
against at least such risks (in any event, including but not
limited to fire and business interruption insurance) as
usually maintained by owners of similar businesses and
properties in similar geographic areas. All such insurance
shall be in amounts and form and with insurance companies
acceptable to Purchaser in its sole discretion. Seller shall
furnish to Purchaser: (a) upon written request, any and all
information concerning such insurance carried; (b) as
requested by Purchaser, lender loss payable endorsements (or
their equivalent) in favor of Purchaser. All policies of
insurance shall provide for not less than thirty (30) days
prior written cancellation notice to Purchaser.
8.9 The net amount on any Purchased Account shall be legally owing
by such customer, and payment by the customer accordingly to
the terms of the invoice including, without limitation,
payment with any applicable late fee, penalty, charge or
interest, shall not violate any federal, state or local law,
statute, rule or regulation.
8.10 Notwithstanding that Seller has agreed to pay the Misdirected
Payment Fee pursuant to Section 3.2 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.
8.11 Seller represents that the seller's principal place of
business is located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇. If Seller is a corporation or other entity, its State
of incorporation or organization is Wisconsin.
9. 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
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Resolve such issues with respect to any Account of Seller.
10. Perfection of Security Interest. Seller shall execute and deliver to
Purchaser such documents and instruments, including, without
limitation, Uniform Commercial Code financing statements, as Purchaser
may request from time to time in order to evidence and perfect its
security interest in any collateral securing the Obligations.
11. Representation and Warranty. Seller represents and warrants that:
11.1 it is fully authorized to enter into this Agreement and to
perform hereunder;
11.2 this Agreement constitutes its legal, valid and binding
obligation; and
11.3 Seller is solvent and in good standing in the State of its
organization.
12. Default.
12.1 Events of Default. The following events will constitute an
Event of Default hereunder: (i) Seller defaults in the payment
of any Obligations or a default occurs under the terms of any
other agreement between Seller and Purchaser, (ii) Seller or
any guarantor of the Obligations becomes subject to any
debtor-relief, bankruptcy or reorganization proceedings, (iii)
any such guarantor fails to perform or observe any of such
guarantor's obligations to Purchaser or shall notify Purchaser
of its intention to rescind, modify, terminate or revoke any
guaranty of the Obligations, or any such guaranty shall cease
to be in full force and effect for any reason whatever, (iv)
Purchaser for any reason, in good faith, deems itself insecure
with respect to the prospect of repayment or performance of
the Obligations.
12.2 Effect of Default.
12.2.1 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 immediately become due and
payable without notice.
12.2.2 The Late Charges shall accrue and be payable on
demand on any Obligation not paid when due.
13. Indemnity. Seller hereby agrees to protect, indemnify and hold harmless
Purchaser and all its directors, officers, employees and agent from and
against any and all (i) claims, demand and causes of action of any
nature whatsoever brought by any third party and arising from or
related to this agreement, (ii) costs and expenses related to such
defense including without limitation, reasonable attorneys fee and
(iii) liabilities, judgments, settlements, penalties an assessments
arising from such claims and demands. This indemnity shall survive
termination of this agreement.
14. Termination; Effective Date. This Agreement will be effective when
accepted by Purchaser, will continue in full force and effect for six
months thereafter, and shall be further extended for an additional 6
months automatically unless Seller shall have given Purchaser written
notice of its intention to terminate at least thirty days prior to each
such anniversary, whereupon this Agreement shall terminate on said
anniversary. Upon termination Seller shall pay the Obligations to
Purchaser, and Purchaser may not purchase any further Accounts from
Seller. Should the effective date of termination occur after June 21,
2002, and should the Obligations be paid completely from funds borrowed
from a commercial bank, then no prepayment charge shall be due or
payable.
15. 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 the
party against whom enforcement of the change, waiver, discharge or
termination is sought. Any waiver or consent so given shall be
effective only in the specific instance and for the specific purpose
for which given.
16. 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.
17. 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
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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. Relationship of Parties. The relationship of the parties hereto shall
be that of Seller and Purchaser of accounts, and neither party is or
shall be deemed a fiduciary of or to the other.
19. Attorneys Fees. Seller agrees to reimburse Purchaser on demand for:
19.1.1 All of Purchaser's costs and expenses, including
attorneys' fees, which Purchaser has incurred or may
incur in the enforcement or collection of this
agreement or any Obligation including, but not
limited to: Purchaser's actual costs of enforcement
or collection.
19.1.2 Purchaser's attorneys' fees and costs and expenses
incurred in complying with any subpoena or other
legal process attendant to any litigation in which
Seller is a party and which relates to this agreement
or other Obligation;
19.2 Purchaser's costs and attorney's fees shall include costs and
expenses 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 say, (ii) seeking dismissal or conversion of
the bankruptcy proceeding or (ii) opposing confirmation of
Seller' plan thereunder.
20. Entire Agreement. This Agreement supersedes all prior or
contemporaneous agreement and understandings between said parties,
verbal or written, express or implied, relating to the subject matter
hereof. 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.
21. 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 laws of the State of
Minnesota.
22. 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
trail 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 dealing 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 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.
23. 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 State District Court
for the District of Minnesota or any court of the State of Minnesota
located in Minnesota (the "Acceptance 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 Minnesota 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.
24. Notice. All notices required to be given to any party other than
Purchaser shall be deemed given upon the first to occur of:
Deposit thereof in a receptacle under the control of the
United States Postal Service;
Transmittal by electronic means to a receiver under the
control of such party; or
Actual receipt by such party or an employee or agent of such
party.
All notices required to be given to Purchaser hereunder shall be deemed
given upon actual receipt by a responsible officer of Purchaser. 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:
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SELLER: MOBILITY CONCEPTS, INC.
ADDRESS: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
OFFICER: ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
FAX NUMBER: ▇▇▇-▇▇▇-▇▇▇▇
PURCHASER SPECTRUM COMMERCIAL SERVICES COMPANY
ADDRESS: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
OFFICER: ▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇
FAX NUMBER: ▇▇▇-▇▇▇-▇▇▇▇
(continued on next page)
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IN WITNESS WHEREOF, the Parties have executed this agreement on the day and year
first above written.
Seller: Purchaser:
MOBILITY CONCEPTS, INC. SPECTRUM COMMERCIAL SERVICES COMPANY
By: By
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Name: Name
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Title: Title
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CERTIFICATE OF AUTHORITY
I, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, do hereby certify that I am Secretary of the
"Seller" named above, that the following is a true and correct copy of
resolutions duly adopted by the corporation's board of directors, and that said
resolutions are now in full force and effect:
RESOLVED, that all of the officers and other agents of the corporation,
be and each of them are hereby authorized: (i) To borrow money, factor or sell
accounts receivable and obtain other credit or financial accommodations, in any
amount, from SPECTRUM Commercial Services Company ("Purchaser") for and on
behalf of the corporation; (ii) To sign, execute and deliver loan, assignment of
accounts and security agreement, other credit, factoring, or security
agreements, promissory notes, or other evidences of indebtedness therefor, or in
renewal thereof, in such amounts, for such time, at such rates of discount or
interest and upon such terms as such officer or agent may see fit; (iii) To
discount, sell, assign, transfer, mortgage, or pledge to Purchaser or create
security interests in, the real property, goods, instruments, documents of
title, securities, chattel paper, accounts, purchase orders, equipment,
investment property, inventory, contract rights or other general intangibles or
any other property now or hereafter owned by the corporation, either absolutely,
or with or without recourse, for such consideration as such officers or agents
may deem to be appropriate or as security for the payment or performance of any
debts, liabilities or obligations owed to Purchaser; (iv) To do such other acts
and things, make such other agreements and execute and deliver such other
documents, as such officer or agent may deem to be appropriate in connection
with any of the foregoing.
IN WITNESS WHEREOF, I have hereunto subscribed my name on behalf of
said corporation this 21st day of December, 2001.
, Corporate Secretary
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