UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) June 25, 2004
Internet Business's International, Inc.
(Exact name of registrant as specified in its charter)
Nevada 33-0845463
(State or other (IRS Employer
jurisdiction of incorporation) Identification No.)
2250 East Tropicana, Suite 19-309, Las Vegas, Nevada 89119
(Address of Principal Executive Offices)
Registrant's Telephone Number, Including Area Code: (775) 588-2387
None
(Former name or former address, if changed since last report)
ITEM 5. OTHER EVENTS
On June 25, 2004, Skyy-Fi, Inc., a wholly owned subsidiary of Internet
Business's International, Inc. (the "Company" or "IBII") entered into a
Factoring and Security Agreement with 1st American Factoring, LLC ("1st American
Factoring"). The agreement provides for a continuing first priority security
interest in all personal property and fixtures, and proceeds thereof, (including
proceeds of proceeds) including without limitation accounts, chattel paper,
goods (including inventory and equipment), instruments, investment property,
documents, and general intangibles (collectively, the "Collateral") of Skyy-Fi
up to $3,000,000.
Pursuant to the terms of the Agreement, Skyy-Fi shall execute and deliver to 1st
American Factoring a Financing Statement and any other documents in a form
satisfactory to 1st American Factoring and do all such acts and things as 1st
American Factoring may at any time reasonably request or as may be necessary or
appropriate to establish and maintain a perfected security interest in the
collateral.
A form of the Factoring and Security Agreement is attached hereto as Exhibit
99.1
ITEM 7. EXHIBITS
(c) Exhibits
Exhibit No. Description
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99.1 Form of Factoring and Security Agreement by and between Skyy-Fi,
Inc. and 1st American Factoring, LLC
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the registrant and
in the capacities and on the dates indicated.
INTERNET BUSINESS'S INTERNATIONAL, INC.
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Date: June 25, 2004 By /s/ Albert R. Reda
Albert R. Reda
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President
Exhibit 99.1
FACTORING AND SECURITY AGREEMENT
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THIS FACTORING AND SECURITY AGREEMENT is made as of June 29, 2004 by and
between Skyy-Fi, Inc.(Seller") and 1st American Factoring, LLC ("Purchaser").
1. DEFINITIONS AND INDEX TO DEFINITIONS. The following terms used herein
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shall have the following meaning. All capitalized terms not herein defined
shall have the meaning set forth in the Uniform Commercial Code:
1.1. "ACTIVE ACCOUNT DEBTOR" - An Account Debtor of Seller which owes a
Purchased Account to Purchaser.
1.2. "ADVANCE RATE" 70%
1.3. "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.
1.4. "CHOSEN STATE: - Colorado.
1.5. "CLOSED" - a Purchased Account is closed upon receipt of full payment by
Purchaser from the Account Debtor or from the Seller (including its being
charged to the Reserve Account.
1.6. "COLLATERAL"- all now owned and hereafter acquired personal property and
fixtures, and proceeds thereof, (including proceeds of proceeds) including
without limitation Accounts, Chattel Paper, Goods (including Inventory and
Equipment), Instruments, Investment Property, Documents, and General
Intangibles.
1.7. "ELIGIBLE ACCOUNT" - an Account that is acceptable for purchase as
determined by Purchaser in the exercise of its reasonable sole credit or
business judgment.
1.8. "EVENTS OF DEFAULT" - See Section 15.1.
1.9. "EXPOSED PAYMENTS" - Payments received by Purchaser from an Account Debtor
that has become subject to a bankruptcy proceeding, to the extent such payments
cleared said Account Debtor's deposit account within ninety days of the
commencement of said bankruptcy case.
1.10. "FACE AMOUNT" - the face amount due on an Account at the time of Purchase.
1.11. "FACTORING FEE" - the Factoring Fee Percentage multiplied by the Face
Amount of a Purchased Account, for each Factoring Fee Period or portion thereof,
that any portion thereof remains unpaid, computed from the end of the Initial
Fee Period to and including the Late Payment Date.
1.12. "INITIAL FEE" - 3%
1.13. "INITIAL FEE PERIOD" - 15 Days
1.14. "FACTORING FEE PERCENTAGE" - 1%
1.15. "FACTORING FEE PERIOD" - Every 15 Days
1.16. "INVOICE" - the document that evidences or is intended to evidence an
Account. Where the context so requires, reference to an Invoice shall be deemed
to refer to the Account to which it relates.
1.17. "LATE PAYMENT DATE" - ninety days from the date on which a Purchased
Account was Created.
1.18. "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 business day following the date
of receipt by Seller.
1.19. "MISSING NOTATION FEE" - 15% of the Face Amount.
1.20. "NOTATION" "This account has been assigned and is payable directly to
1st American Factoring, LLC, located at 501 Main Street Windsor, CO 80550 to
whom notice of any claim or dispute must be advised, either in writing or
telephone 970-674-8778".
1.21. "OBLIGATIONS" - all present and future obligations owing by Seller to
Purchaser whether arising hereunder or otherwise, and whether arising before,
during or after the commencement of any Bankruptcy Case in which Seller is a
Debtor.
1.22. "PARTIES" - Seller and Purchaser.
1.23. "PURCHASE DATE" - the date on which Seller has been advised in writing
that Purchaser has agreed to purchase an Account.
1.24. "PURCHASE PRICE" - the Face Amount of a Purchased Account less the Initial
Fee.
1.25. "PURCHASED ACCOUNTS" - Accounts purchased hereunder which have not been
Closed.
1.26. "REPURCHASED" - an Account has been repurchased when Seller has paid to
Purchaser the then unpaid Face Amount.
1.27. "REQUIRED RESERVE AMOUNT" - the Reserve Percentage multiplied by the
unpaid balance of Purchased Accounts.
1.28. "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.
1.29. "RESERVE PERCENTAGE" - 30%
1.30. "RESERVE SHORTFALL" - the amount by which the Reserve Account is less than
the Required Reserve Amount.
1.31. "SCHEDULE OF ACCOUNTS" - a form supplied by Purchaser from time to time
wherein Seller lists such of its Accounts as it requests that Purchaser purchase
under the terms of this Agreement.
1.32. "TERM" - Six Months
2. SALE; PURCHASE PRICE; BILLING
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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 Schedules of
Accounts. Each Schedule of Accounts shall be accompanied by such documentation
supporting and evidencing the Account, as Purchaser shall from time to time
request.
2.1.2. Seller must offer for sale to Purchaser all Accounts owing to Seller by
an Active Account Debtor.
2.1.3. Purchaser may, but need not purchase from Seller such Accounts as
Purchaser determines to be Eligible Accounts.
2.1.4. Purchaser shall pay the Purchase Price, less any amounts due to Purchaser
from Seller, including, without limitation, any amounts due under Section 3.1
hereof, of any Purchased Account, to Seller within two (2) business days of the
Purchase Date, whereupon the Accounts shall be deemed purchased hereunder.
2.2. BILLING. Purchaser may send a monthly statement to all Account Debtors
itemizing their account activity during the preceding billing period. All
Account Debtors will be instructed to make payments to Purchaser.
3. RESERVE ACCOUNT.
3.1. Seller shall pay to Purchaser on demand the amount of any Reserve S
hortfall.
3.2. Purchaser shall pay to Seller any amount by which the Reserve Account
exceeds the Required Reserve Amount on the last business day of each week.
3.3. Purchaser may charge the Reserve Account with any Obligation.
3.4. Purchaser may pay any amounts due Seller hereunder by a credit to the
Reserve Account;
3.5. Purchaser may retain the Reserve Account unless and until Seller has
executed and delivered to Purchaser a general release in the form of Exhibit A
attached hereto.
4. EXPOSED PAYMENTS.
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4.1. Upon termination of this Agreement Seller shall pay to Purchaser (or
Purchaser may retain), to hold in a non-segregated non-interest bearing account
the amount of all Exposed Payments (the "Preference Reserve").
4.2. Purchaser may charge the Preference Reserve with the amount of any Exposed
Payments that Purchaser pays to the bankruptcy estate of the Account Debtor that
made the Exposed Payment, on account of a claim asserted under Section 547 of
the Bankruptcy Code.
4.3. Purchaser shall refund to Seller from time to time that balance of the
Preference Reserve for which a claim under Section 547 of the Bankruptcy Code
can no longer be asserted due to the passage of the statute of limitations,
settlement with the bankruptcy estate of the Account Debtor or otherwise.
5. AUTHORIZATION FOR PURCHASES. Subject to the terms and conditions of
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this Agreement, Purchaser is authorized to purchase Accounts upon telephonic,
facsimile or other instructions received from anyone purporting to be an
officer, employee or representative of Seller.
6. FEES AND EXPENSES. Seller shall pay to Purchaser:
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6.1. FACTORING FEE. The Factoring Fee on the date on which a Purchased Account
is Closed.
6.2. MISDIRECTED PAYMENT FEE. Any Misdirected Payment Fee immediately upon its
accrual.
6.3. MISSING NOTATION FEE. The Missing Notation Fee on any Invoice that is sent
by Seller to an Account Debtor that does not contain the notice as required by
Section 11.2 hereof.
6.4. 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 four
audits per twelve-month period.
7. REPURCHASE OF ACCOUNTS. Purchaser may require that Seller repurchase,
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by payment of the then 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:
7.1. 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;
7.2. Any Purchased Account for with Seller has breached any warranty as set
forth in the Section 13.4.
7.3. Any Purchased Account owing from an Account Debtor which (i) in Purchaser's
reasonable credit judgment has become insolvent or (ii) which has indicated an
inability or unwillingness to pay the Purchased Account when due;
7.4. All Purchased Accounts upon the occurrence of an Event of Default, or
upon the termination date of this Agreement; and
7.5. Any Purchased Account that remains unpaid beyond the Late Payment Date.
8. SECURITY INTEREST.
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8.1. As collateral securing the Obligations, Seller grants to Purchaser a
continuing first priority security interest in the Collateral.
8.2. Notwithstanding the creation of this security interest, the relationship of
the parties shall be that of Purchaser and Seller of accounts, and not that of
lender and borrower.
9. AUTHORIZATION TO PURCHASER.
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9.1. Seller irrevocably authorizes Purchaser at Seller's expense, to exercise at
any time any of the following powers until all of the Obligations have been paid
in full:
9.1.1. Receive, take, endorse, assign, deliver, accept and deposit, in the name
of Purchaser or Seller, any and all proceeds of any collateral securing the
Obligations or the proceeds thereof;
9.1.2. 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 Purchaser's Accounts;
9.1.3. Pay any sums necessary to discharge any lien or encumbrance which is
senior to Purchaser's security interest in any assets of Seller, 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;
9.1.4. File in the name of Seller or Purchaser or both:
9.1.4.1. Mechanics lien or related notices, or
9.1.4.2. Claims under any payment bond, in connection with goods or services
sold by Seller in connection with the improvement of realty;
9.1.5. 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, and
(h) communicate directly with Seller's Account Debtors to verify the amount and
validity of any Account created by Seller.
9.1.6. After an Event of Default:
9.1.6.1. Change the address for delivery of mail to Seller and to receive and
open mail addressed to Seller;
9.1.6.2. 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
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;
9.1.7. File any initial financing statements and amendments thereto that:
9.1.7.1. Indicate the collateral as all assets of the Seller or words of similar
effect, regardless of whether any particular asset comprised in the collateral
falls within the scope of Article 9 of the UCC, or as being of an equal or
lesser scope or with greater detail;
9.1.7.2. Contain any other information required by part 5 of Article 9 of the
UCC for the sufficiency or filing office acceptance of any financing statement
or amendment, including (i) whether the Seller is an organization, the type of
organization, and any organization identification number issued to the Seller
and, (ii) in the case of a financing statement filed as a fixture filing or
indicating collateral as as-extracted collateral or timber to be cut, a
sufficient description of real property to which the collateral relates; and
9.1.7.3. Contain a notification that the Seller has granted a negative pledge to
the Purchaser, and that any subsequent lienor may be tortuously interfering with
Purchaser's rights;
9.1.7.4. Advises third parties that any notification of Seller's Account Debtors
will interfere with Purchaser's collection rights.
9.2. 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.
9.3. Seller authorizes Purchaser to accept, endorse 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 3-311 of the Uniform
Commercial Code, or otherwise.
10. ACH AUTHORIZATION. In order to satisfy any of the Obligations, Seller
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authorizes Purchaser to initiate electronic debit or credit entries through the
ACH system to any deposit account maintained by Seller.
11. COVENANTS BY SELLER.
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11.1. 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 its Accounts, (b) compromise or settle any of its Accounts for
less than the full amount thereof, (c) release in whole or in part any Account
Debtor, or (d) grant any credits, discounts, allowances, deductions, return
authorizations or the like with respect to any of the Accounts.
11.2. 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 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.
Before sending any Invoice to an Account Debtor, Seller shall mark same with a
notice of assignment as may be required by Purchaser.
11.3. 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.
11.4. Seller shall not create, incur, assume or permit to exist any lien upon or
with respect to any assets in which Purchaser now or hereafter holds a security
interest.
11.5. Notwithstanding Seller's obligation to pay the Misdirected Payment Fee,
Seller shall pay to Purchaser on the next banking day following the date of
receipt by Seller the amount of any payment on account of a Purchased Account.
11.6. AVOIDANCE CLAIMS.
11.6.1. Seller shall indemnify Purchaser from any loss arising out of the
assertion of any Avoidance Claim and shall pay to Purchaser on demand the amount
thereof.
11.6.2. Seller shall notify Purchaser within two business days of it becoming
aware of the assertion of an Avoidance Claim.
11.6.3. This provision shall survive termination of this Agreement.
12. ACCOUNT DISPUTES. Seller shall notify Purchaser promptly of and, if
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requested by Purchaser, will settle all disputes concerning any Purchased
Account, at Seller's sole cost and expense. 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
Account of Seller.
13. REPRESENTATION AND WARRANTIES. Seller represents and warrants that:
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13.1. It is fully authorized to enter into this Agreement and to perform
hereunder;
13.2. This Agreement constitutes its legal, valid and binding obligation; and
13.3. Seller is solvent and in good standing in the State of its organization.
13.4. The Purchased Accounts are and will remain:
13.4.1. Bona fide existing obligations created by the sale and delivery of goods
or the rendition of services in the ordinary course of Seller's business;
13.4.2. Unconditionally owed and will be paid to Purchaser without defenses,
disputes, offsets, counterclaims, or rights of return or cancellation;
13.4.3. Not sales to any entity that is affiliated with Seller or in any way not
an "arms length" transaction.
13.5. Seller has not received notice or otherwise learned of actual or imminent
bankruptcy, insolvency, or material impairment of the financial condition of any
applicable account debtor regarding Purchased Accounts.
14. In the event Seller's principals, officers or directors form a new entity in
a business similar to that of Seller during the term of this Agreement or while
Seller remains liable to Purchaser for any obligations under this Agreement or
arising out of or related to this Agreement, whether in the form of a
corporation, partnership, limited liability company or otherwise, such an entity
shall be deemed to have expressly assumed the obligations due Purchaser by
Seller under this Agreement. Upon the formation of any such entity, Purchaser
shall be deemed to have been granted an irrevocable power of attorney to execute
on behalf of the newly formed successor business, a new UCC-1 or UCC-3 financing
statement and have it filled with the appropriate secretary of state or UCC
filing office. Purchaser shall be held harmless and be relieved of any liability
as a result of Purchaser's execution and recording of any such financing
statement or the resulting perfection of a lien in any of the successor entity's
assets. In addition, Purchaser shall have the right to notify the successor
entity's account debtors of Purchaser's lien rights, its right to collect all
Accounts, and to notify any new lender who has sought to procure a competing
lien of Purchaser's right is in such successor entity's assets.
15. Default.
15.1. 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 way, howsoever minor, (b) Seller or
any guarantor of the Obligations becomes subject to any debtor-relief
proceedings, (c) 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, (d) Purchaser for any reason, in good faith, deems itself insecure
with respect to the prospect of repayment or performance of the Obligations.
15.2. WAIVER OF NOTICE. SELLER WAIVES ANY REQUIREMENT THAT PURCHASER INFORM
SELLER BY AFFIRMATIVE ACT OR OTHERWISE OF 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.
15.3. EFFECT OF DEFAULT.
15.3.1. 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 immediately become
due and payable without notice.
15.3.2. The Late Charge shall accrue and is payable on demand on any Obligation
not paid when due.
16. ACCOUNT STATED. Purchaser shall render to Seller a statement setting
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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.
17. AMENDMENT AND WAIVER. Only a writing signed by all parties hereto may
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amend this Agreement. No failure or delay in exercising any right hereunder
shall impair any such right that Purchaser may have, nor shall any waiver by
Purchaser hereunder be deemed a waiver of any default or breach subsequently
occurring. Purchaser's rights and remedies herein are cumulative and not
exclusive of each other or of any rights or remedies that Purchaser would
otherwise have.
18. TERMINATION; EFFECTIVE DATE.
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18.1. This Agreement will be effective on the date it is signed by the Parties,
shall continue for the Term, and shall be automatically extended for successive
Terms.
18.2. Either Party may terminate this Agreement by giving the other Party thirty
day's prior written notice of termination, whereupon this Agreement shall
terminate on the earlier date of the date of termination or the end of the then
current Term.
19. NO LIEN TERMINATION WITHOUT RELEASE. In recognition of the Purchaser's
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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 and any guarantors of the Obligations have executed and
delivered to Purchaser a general release in the form of the Exhibit numbered
with this Section number. SELLER UNDERSTANDS THAT THIS PROVISION CONSTITUTES A
WAIVER OF ITS RIGHTS UNDER 9-513 OF THE UCC.
20. CONFLICT. Unless otherwise expressly stated in any other agreement
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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.
21. SEVERABILITY. In the event any one or more of the provisions
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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
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subject matter hereof is 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
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shall be that of Seller and Purchaser of Accounts, and Purchaser shall not be a
fiduciary of the Seller, although Seller may be a fiduciary of the Purchaser.
24. ATTORNEYS' FEES. Seller agrees to reimburse Purchaser on demand for:
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24.1. The actual amount of all costs and expenses, including 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;
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;
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 in any way relating to Seller. This provision shall survive
termination of this Agreement.
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 (ii) opposing confirmation of Seller's plan there under.
25. ENTIRE AGREEMENT. No promises of any kind have been made by Purchaser
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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
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hereunder and/or evidenced hereby shall be governed by, construed under, and
enforced in accordance with the internal laws of the Chosen State.
27. JURY TRIAL WAIVER. IN RECOGNITION OF THE HIGHER COSTS AND DELAY WHICH
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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. Any suit, action or proceeding arising
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hereunder, or the interpretation, performance or breach hereof, shall, if
Purchaser so elects, be instituted in any court sitting in the Chosen State, in
the city in which Purchaser's chief executive office is located, or if none, any
court sitting in the Chosen State (the "Acceptable Forums"). Seller agrees that
the Acceptable Forums are convenient to it, and submits to the jurisdiction of
the Acceptable Forums and waives any and all objections to jurisdiction or
venue. Should such proceeding be initiated in any other forum, Seller waives any
right to oppose any motion or application made by Purchaser to transfer such
proceeding to an Acceptable Forum.
29. SERVICE OF PROCESS. Seller agrees that Purchaser may effect service
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of process upon Seller by regular mail at the address set forth in this
Agreement, or at the option of Purchaser if Seller is a Registered Organization,
by service upon Seller's agent for the service of process.
30. ASSIGNMENT. Purchaser may assign its rights and delegate its duties
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hereunder. Upon such assignment, Seller shall be deemed to have attorned to
such assignee and shall owe the same obligations to such assignee and shall
accept performance hereunder by such assignee as if such assignee were
Purchaser.
31. COUNTERPARTS. This Agreement may be signed in any number of
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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.
32. NOTICE.
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32.1. All notices required to be given to any party other than Purchaser shall
be deemed given upon the first to occur of (i) 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. All notices to
Purchaser shall be deemed given upon actual receipt by a responsible officer of
Purchaser.
32.2. 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
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Address: 10120 S. Eastern Avenue Suite 200
Henderson, NV 89052
President: Albert Reda
PURCHASER
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Address: 501 Main Steet
Windsor, CO 80550
Officer: David Karst
Fax Number: 970-674-1181
IN WITNESS WHEREOF, the Parties have executed this agreement on the day and
year first above written.
SELLER: Skyy-Fi, Inc.
By: /s/ Albert Reda
Name: Albert Reda
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Title: President
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PURCHASER: 1st American Factoring, LLC
By:
Name:
Title:
Executed on ____________________________________
(Seal)
State of ________________________
County of ________________________
The foregoing agreement was acknowledged before me this __________ day of
_____________________y
Witness my hand and seal.
My commission expires: ________________ _____________________(Notary Public)
EXHIBIT A
GENERAL RELEASE
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FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which are
hereby acknowledged, the undersigned and each of them (collectively "Releasor")
hereby forever releases, discharges and acquits 1ST AMERICAN FACTORING, LLC
("Releasee"), its parent, directors, shareholders, agents and employees, of and
from any and all claims of every type, kind, nature, description or character,
and irrespective of how, why, or by reason of what facts, whether heretofore
existing, now existing or hereafter arising, or which could, might, or may be
claimed to exist, of whatever kind or name, whether known or unknown, suspected
or unsuspected, liquidated or unliquidated, each as though fully set forth
herein at length, to the extent that they arise out of or are in way connected
to or are related to that certain Factoring and Security Agreement dated June
25,2004.
Releasor agrees that the matters released herein are not limited to matters
that are known or disclosed, and the Releasor waives any and all rights and
benefits that it now has, or in the future may have.
Releasor agrees that the matters released herein are not limited to matters
that are known or disclosed.
Releasor acknowledges that factual matters now unknown to it may have given
or may hereafter give rise to Claims which are presently unknown, unanticipated
and unsuspected, and it acknowledges that this Release has been negotiated and
agreed upon in light of that realization and that it nevertheless hereby intends
to release, discharge and acquit the Releasee from any such unknown Claims.
Acceptance of this Release shall not be deemed or construed as an admission
of liability by any party released.
Releasor acknowledges that either (a) it has had advice of counsel of its
own choosing in negotiations for and the preparation of this release, or (b) it
has knowingly determined that such advise is not needed.
DATED: __________
Individual Releasor: -------------------------------------
[NAME OF INDIVIDUAL], individually
Individual Releasor: -------------------------------------
[NAME OF INDIVIDUAL], individually
Entity Releasor:
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By:
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Name:
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Title: