Purchase Price and Fees. (a) Purchaser shall purchase an Eligible Account at a purchase price equal to the face amount of such Eligible Account less the Reserve Percentage (as defined in paragraph 4 below) of such face amount which shall be credited to the applicable Reserve Account. The purchase price for any Eligible Accounts shall be advanced by Purchaser to the applicable Seller on the date of purchase as directed by such Seller. Sellers shall pay to Purchaser a discount (the "Discount") for each Eligible Account purchased hereunder equal to one-half of one percent (0.5%) of the face amount of the Eligible Account in question; provided that the Discount for any Eligible Account bearing terms in excess of the standard net 30-day terms shall be increased by 1.00% for each additional 30 days or fraction thereof. The Discount for an Eligible Account shall be due and payable on the earlier of the ninetieth (90th) day after the related invoice date and the date on which Purchaser collects such Eligible Account. Sellers hereby authorize Purchaser to deduct any Discount payable hereunder from the purchase price of Eligible Accounts or any Inventory Advance hereunder or to charge such Discount against the Reserve Accounts or collections on the related Eligible Account, as Purchaser elects at its sole discretion. (b) Sellers shall pay to Purchaser interest on the daily balance of all sums (the "Advances") remitted, paid, or otherwise advanced by Purchaser to Sellers or for Sellers' benefit (including but not limited to the purchase price of Eligible Accounts purchased by Purchaser hereunder and the outstanding principal balance of any Inventory Advances), net of all payments received from Sellers' Account Debtors or otherwise received by Purchaser on the Sellers' behalf which are credited to the Sellers' account. Interest shall be charged on the Advances at a rate (the "Interest Rate"), equal to the greater of (i) nine and one-half percent (9.5%) per annum and (ii) the Prime Rate in effect from time to time plus two percent (2%) per annum but in no event to exceed the maximum rate permitted by applicable law. If the Prime Rate changes after the date hereof, the Interest Rate shall be automatically increased or decreased, as the case may be, if required hereunder, without notice to Sellers from time to time as of the effective time of each change in the Prime Rate. Interest shall be due and payable on the last day of each calendar month and may, in Purchaser's sole discretion, be charged against the Reserve Accounts or other sums that may be due to Sellers hereunder. As used herein, the term "Prime Rate" means the rate as published from time to tune by The Wall Street Journal as the base rate for corporate loans at large commercial banks (if more than one such rate is published, the Prime Rate will be the higher or highest of the rates published). If such rate is no longer published by The Wall Street Journal, then Purchaser shall, in its sole discretion select the base or prime rate for corporate loans at a large commercial bank as the "Prime Rate." All interest accruing hereunder shall be calculated on the basis of actual days elapsed (including the first day but excluding the last) plus five (5) business days and a year of 360 days.
Appears in 1 contract
Purchase Price and Fees. (a) Purchaser shall purchase an Eligible Account at a purchase price equal to the face amount of such Eligible Account less the Reserve Percentage (as defined in paragraph 4 below) of such face amount which shall be credited to the applicable Reserve Account. The purchase price for each Purchased Account posted on FGI’s receivables processing system and the Related Rights thereto shall equal the Net Invoice Amount of such Purchased Account less (i) any Eligible Accounts portion thereof that represents an obligation to pay any applicable taxes and (ii) FGI’s fees, as determined in accordance with Section 3(g). No discount, credit, compensation, allowance or deduction with respect to any Purchased Account, unless shown on the face of the invoice delivered to FGI prior to FGI’s purchase of such Account, shall be advanced granted or approved by Purchaser Seller to the applicable Seller on the date of purchase as directed by such Seller. Sellers any Account Debtor without FGI’s prior written consent which consent shall pay to Purchaser a discount (the "Discount") for each Eligible Account purchased hereunder equal to one-half of one percent (0.5%) of the face amount of the Eligible Account in question; provided that the Discount for any Eligible Account bearing terms in excess of the standard net 30-day terms shall not be increased by 1.00% for each additional 30 days or fraction thereof. The Discount for an Eligible Account shall be due and payable on the earlier of the ninetieth (90th) day after the related invoice date and the date on which Purchaser collects such Eligible Account. Sellers hereby authorize Purchaser to deduct any Discount payable hereunder from the purchase price of Eligible Accounts or any Inventory Advance hereunder or to charge such Discount against the Reserve Accounts or collections on the related Eligible Account, as Purchaser elects at its sole discretionunreasonably withheld.
(b) Sellers shall pay The Purchase Price for a Purchased Account posted on FGI’s receivables processing system and the Related Rights thereto less (i) any Required Reserve Amount or credit balance that FGI, in FGI’s reasonable discretion, determines to Purchaser interest on hold, (ii) the daily outstanding balance of all sums (the "Advances") Advances in respect of such Account and of any other moneys remitted, paid, or otherwise advanced by Purchaser FGI to Sellers or on behalf of Seller (including any amounts which FGI reasonably determines that FGI may be obligated to pay in the future), and (iii) any charge, fee, and other amount that Seller is required to pay to FGI pursuant to this Agreement, shall be payable by FGI to Seller on the Date of Collection of such Account.
(c) FGI shall be entitled, in its sole and absolute discretion, to withhold the Required Reserve Amount in an amount determined by FGI in its sole discretion, and may determine, increase or decrease the Required Reserve Amount or Reserve Percentage at any time and from time to time if FGI deems it necessary to do so in order to protect FGI’s interests. In no event shall Seller permit a Reserve Shortfall to occur, and shall pay to FGI the amount thereof on demand. FGI may charge against the Reserve Account any amount for Sellers' benefit (which Seller may be obligated to FGI at any time, whether under the terms of this Agreement, or otherwise, including but not limited to the purchase price of Eligible Accounts purchased by Purchaser hereunder and the outstanding principal balance repayment of any Inventory AdvancesAdvance, the amount of any Purchased Account constituting an Acceptable Account, any damages suffered by FGI as a result of Seller’s breach of any representation or warranty herein or of any other provision hereof (whether intentional or unintentional), net of all payments received from Sellers' any adjustments due and any attorneys’ fees, costs and disbursements due. Seller recognizes that the Reserve Account Debtors or otherwise received by Purchaser on the Sellers' behalf which are credited may, in FGI’s sole discretion, represent bookkeeping entries only and not cash funds. It is further agreed that, with respect to the Sellers' accountbalance in the Reserve Account, FGI is authorized to withhold, without giving prior notice to Seller, any payments and credits otherwise due to Seller under the terms of this Agreement to protect FGI for reasonably anticipated claims or to adequately satisfy reasonably anticipated obligations Seller may owe FGI. Interest Upon the occurrence of an Event of Default, or in the event Seller shall cease selling Accounts to FGI, FGI shall be charged under no obligation to pay the amount maintained in the Reserve Account until all Purchased Accounts have been collected or FGI has determined, in its sole and absolute discretion, that it will make no further efforts to collect any Purchased Accounts and all sums due FGI hereunder have been paid. Notwithstanding anything set forth herein to the contrary, upon an Event of Default, Seller understands and agrees that the Termination Fee described in Section 13 hereof shall be due and payable by Seller in the event that FGI terminates this Agreement following an Event of Default.
(d) In FGI’s sole and absolute discretion, FGI may from time to time advance to Seller against the Purchase Price of a Purchased Account posted on FGI’s receivables processing system, sums up to 85% of the Advances aggregate Purchase Price thereof outstanding at a rate the time any such Advance is made, less: (i) the "amount of any such Purchased Account that is not an Acceptable Account; and (ii) any fees, actual or estimated, that are payable to FGI hereunder. Each Advance shall be payable by Seller to FGI on demand until the Date of Collection of the related Purchased Account and shall bear interest at the Applicable Interest Rate"), equal to before and after default and judgement, with interest on overdue interest at the greater same rate, from the date such Advance is made until the earlier of (i) nine and one-half percent (9.5%) per annum and the date the Advance is repaid in full or (ii) the Prime Rate in effect from time date FGI would otherwise be obligated hereunder to time plus two percent pay the Purchase Price of the Purchased Account against which such Advance was made.
(2%e) per annum but in no event to exceed Interest at the maximum rate permitted by applicable law. If the Prime Rate changes after the date hereof, the Applicable Interest Rate upon the daily total outstanding balance of each Advance shall be automatically increased payable by Seller to FGI on the last day of each month and may be charged by FGI to the Reserve Account. Any adjustment in the Applicable Interest Rate, whether downward or decreasedupward, will become effective on the day on which the Applicable Interest Rate decreases or increases, as the case may be. If, if required hereunderon any day in a month, without notice the balance in the Reserve Account exceeds the unpaid balance of all Purchased Accounts, then Seller agrees to Sellers from time to time credit the Reserve Account as of the last day of such month with interest on such excess at an annual rate equal to the greater of 5.50% per annum and 2.25% above the rate of interest designated by FGI as its selected “Prime Rate” or “Base Rate”, as the case may be (which as of the date hereof is based upon the Wall Street Journal, Money Rates Section which is subject to change). All interest and fees payable hereunder shall be computed for the actual number of days elapsed on the basis of a year consisting of three hundred sixty (360) days. Interest shall be payable monthly, in arrears, on the first day of each calendar month, beginning on the first day of the first calendar month after the Closing Date.
(f) Seller shall unconditionally pay and FGI shall be entitled to receive a facility fee in an amount equal to 1.00% of the Facility Amount in immediately available funds. The initial facility fee shall be paid upon signing of this Agreement.
(g) Seller shall unconditionally pay and FGI shall be entitled to receive a non-refundable monthly collateral management fee equal to 0.37% of the total monthly amount of Purchased Accounts; with such fee charged monthly to Seller’s Reserve Account or if funds are not available therein, payable by Seller on demand.
(h) The minimum monthly net funds employed during each contract year hereof shall be no less than $4,000,000; any deficiency will be subject to a Deficiency Assessment.
(i) IT IS THE INTENTION OF THE PARTIES HERETO THAT, AS TO ALL PURCHASED ACCOUNTS, THE TRANSACTIONS CONTEMPLATED HEREBY SHALL CONSTITUTE A TRUE PURCHASE AND SALE OF SUCH ACCOUNTS UNDER § 9-318 OF THE UCC AND AS SUCH, THE SELLER SHALL THEREFORE HAVE NO LEGAL OR EQUITABLE INTEREST IN ANY PURCHASED ACCOUNTS. NEVERTHELESS, IN THE EVENT ALL OR ANY PORTION OF THIS TRANSACTION IS CHARACTERIZED AS A LOAN, THE PARTIES HERETO INTEND TO CONTRACT IN STRICT COMPLIANCE WITH APPLICABLE USURY LAW FROM TIME TO TIME IN EFFECT. IN FURTHERANCE THEREOF SUCH PARTIES STIPULATE AND AGREE THAT NONE OF THE TERMS AND PROVISIONS CONTAINED IN THIS AGREEMENT SHALL EVER BE CONSTRUED TO CREATE A CONTRACT TO PAY, FOR THE USE, FORBEARANCE OR DETENTION OF MONEY, INTEREST USED IN THIS PARAGRAPH AS DEFINED BY ANY APPLICABLE LAW IN EXCESS OF THE MAXIMUM RATE (AS HEREINAFTER DEFINED) FROM TIME TO TIME IN EFFECT. NEITHER SELLER, ANY PRESENT OR FUTURE GUARANTOR NOR ANY OTHER PERSON HEREAFTER BECOMING LIABLE FOR THE PAYMENT OF THE ADVANCES, OR ANY OTHER AMOUNTS PAYABLE HEREUNDER, SHALL EVER BE LIABLE FOR ANY OBLIGATION THAT MAY BE CHARACTERIZED AS UNEARNED INTEREST THEREON, OR SHALL EVER BE REQUIRED TO PAY ANY OBLIGATION THAT MAY BE CHARACTERIZED AS INTEREST THEREON, IN EITHER CASE THAT IS IN EXCESS OF THE MAXIMUM AMOUNT THAT MAY BE LAWFULLY CHARGED UNDER APPLICABLE LAW FROM TIME TO TIME IN EFFECT, AND THE PROVISIONS OF THIS SECTION SHALL CONTROL OVER ALL OTHER PROVISIONS OF THIS AGREEMENT WHICH MAY BE IN CONFLICT THEREWITH. IF ANY INDEBTEDNESS OR OBLIGATION OWED BY SELLER HEREUNDER IS DETERMINED TO BE IN EXCESS OF THE LEGAL MAXIMUM, OR FGI SHALL OTHERWISE COLLECT MONEYS WHICH ARE DETERMINED TO CONSTITUTE INTEREST WHICH WOULD OTHERWISE INCREASE THE INTEREST ON ALL OR ANY PART OF ANY INDEBTEDNESS OR OBLIGATIONS HEREUNDER TO AN AMOUNT IN EXCESS OF THAT PERMITTED TO BE CHARGED BY APPLICABLE LAW THEN IN EFFECT, THEN ALL SUCH SUMS DETERMINED TO CONSTITUTE INTEREST IN EXCESS OF SUCH LEGAL LIMIT SHALL, WITHOUT PENALTY, BE PROMPTLY APPLIED TO REDUCE THE THEN OUTSTANDING INDEBTEDNESS OR OBLIGATIONS OF SELLER HEREUNDER OR, AT FGI’S OPTION, RETURNED TO SELLER OR THE OTHER PAYOR THEREOF UPON SUCH DETERMINATION. IF AT ANY TIME THE RATE AT WHICH INTEREST IS PAYABLE HEREUNDER EXCEEDS THE MAXIMUM RATE, THE AMOUNT OUTSTANDING HEREUNDER SHALL CEASE BEARING INTEREST UNTIL SUCH TIME AS THE TOTAL AMOUNT OF INTEREST ACCRUED HEREUNDER EQUALS (BUT DOES NOT EXCEED) INTEREST CALCULATED AT THE MAXIMUM RATE. AS USED IN THIS SECTION, THE TERM “APPLICABLE LAW” MEANS THE LAWS OF THE STATE OF NEW YORK OR, IF DIFFERENT, THE LAWS OF THE STATE, TERRITORY OR OTHER JURISDICTION IN WHICH SELLER RESIDES, WHICHEVER LAW ALLOWS THE GREATER RATE OF INTEREST, AS SUCH LAWS NOW EXIST OR MAY BE CHANGED OR AMENDED OR COME INTO EFFECT IN THE FUTURE AND THE TERM “MAXIMUM RATE” MEANS THE MAXIMUM NONUSURIOUS RATE OF INTEREST THAT FGI IS PERMITTED UNDER APPLICABLE LAW TO CONTRACT FOR, TAKE, CHARGE OR RECEIVE WITH RESPECT TO THE ADVANCES OR ANY OTHER INDEBTEDNESS OR OBLIGATIONS HEREUNDER.
(j) Upon FGI’s acceptance of each Purchased Account in accordance herewith, FGI shall be the sole owner and holder of such Purchased Account. Seller hereby sells, transfers, conveys and assigns to FGI all of its right, title and interest in and to each Purchased Account effective at the time of acceptance thereof by FGI. Seller agrees to execute and deliver to each change Account Debtor obligated under an Account and/or a Purchased Account such written notice of sale of the Purchased Account as FGI may request in the Prime Rateform attached hereto as Schedule 7 or in such form as required by FGI.
(k) FGI shall provide Seller online access via a secured website to information on the Purchased Accounts and a reconciliation of the relationship relating to billing, collection and account maintenance such as aging, posting, error resolution, interest and fees payable hereunder, and mailing of statements in the ordinary course of FGI’s business. All of the foregoing shall be in a format, and in such detail, as FGI, in its reasonable discretion, deems appropriate. Furthermore, FGI’s books and records shall be admissible as evidence without objection as prima facie evidence of the status of the Purchased Accounts, non-purchased Accounts and the Reserve Account between FGI and Seller. Each statement, report, or accounting rendered or issued by FGI to Seller, if any, and all online information shall be deemed conclusively accurate and binding on Seller unless within thirty (30) days after the date of issuance or posting Seller notifies FGI to the contrary by registered or certified mail, setting forth with specificity the reasons why Seller believes such statement, report, or accounting is inaccurate, as well as what Seller believes to be correct amount(s) therefor. If FGI’s online website is not available for any reason whatsoever, FGI shall deliver copy of such statements to Seller. FGI’s failure to provide or Seller’s failure to receive such online access or statements shall not relieve Seller of Seller’s obligations under this Agreement or the responsibility of Seller to request such statement and Seller’s failure to do so shall nonetheless bind Seller to whatever FGI’s records would have reported.
(l) To the extent any overadvance is extended by FGI in its sole and absolute discretion, such overadvance shall be subject to such increases to the Applicable Interest Rate and additional terms and conditions set forth by FGI in its sole and absolute discretion. Such overadvance fee shall be due and payable on regardless of whether FGI has accelerated the last day Obligations. Seller agrees that any overadvance fee payable to FGI is a reasonable estimate of each calendar month FGI’s damages and may, in Purchaser's sole discretion, be charged against the Reserve Accounts or other sums that may be due to Sellers hereunder. As used herein, the term "Prime Rate" means the rate as published from time to tune by The Wall Street Journal as the base rate for corporate loans at large commercial banks (if more than one such rate is published, the Prime Rate will be the higher or highest of the rates published). If such rate is no longer published by The Wall Street Journal, then Purchaser shall, in its sole discretion select the base or prime rate for corporate loans at not a large commercial bank as the "Prime Ratepenalty." All interest accruing hereunder shall be calculated on the basis of actual days elapsed (including the first day but excluding the last) plus five (5) business days and a year of 360 days.
Appears in 1 contract
Samples: Sale of Accounts and Security Agreement (Quest Solution, Inc.)
Purchase Price and Fees. (a) Purchaser shall purchase an Eligible Account at a purchase price equal to the face amount of such Eligible Account less the Reserve Percentage (as defined in paragraph 4 below) of such face amount which shall be credited to the applicable Reserve Account. The purchase price for any Eligible Accounts shall be advanced by Purchaser to the applicable Seller on the date of purchase as directed by such Seller. Sellers that FGI shall pay to Purchaser a discount (the "Discount") Seller for each Eligible Purchased Account purchased hereunder shall equal the Net Invoice Amount thereof less FGI’s fees, as specified below. No discount, credit, allowance or deduction with respect to one-half of one percent (0.5%) of any Purchased Account, unless shown on the face amount of the Eligible Account in question; provided that the Discount for any Eligible Account bearing terms in excess of the standard net 30-day terms an invoice, shall be increased granted or approved by 1.00% for each additional 30 days or fraction thereof. The Discount for an Eligible Seller to any Account shall be due and payable on the earlier of the ninetieth (90th) day after the related invoice date and the date on which Purchaser collects such Eligible Account. Sellers hereby authorize Purchaser to deduct any Discount payable hereunder from the purchase price of Eligible Accounts or any Inventory Advance hereunder or to charge such Discount against the Reserve Accounts or collections on the related Eligible Account, as Purchaser elects at its sole discretionDebtor without FGI’s prior written consent.
(b) Sellers shall pay The purchase price (as computed above), less (i) any Required Reserve Amount or credit balance that FGI, in FGI’s sole and absolute discretion, determines to Purchaser interest on the daily balance of all sums hold, (the "Advances"ii) moneys remitted, paid, or otherwise advanced by Purchaser FGI to Sellers or on behalf of Seller (including any amounts which FGI reasonably determines that Seller may be obligated to pay in the future), and (iii) any other charges provided for Sellers' benefit by this Agreement, shall be payable by FGI to Seller on the Date of Collection.
(c) FGI shall be entitled, in its sole and absolute discretion, to withhold the Required Reserve Amount, and may increase or decrease the Required Reserve Amount or Reserve Percentage at any time and from time to time if FGI deems it necessary to do so in order to protect FGI’s interests. In no event shall Seller permit a Reserve Shortfall to occur. FGI may charge against the Reserve Account any amount for which Seller may be obligated to FGI at any time, whether under the terms of this Agreement, or otherwise, including but not limited to the repayment of any Advance, the amount of any Purchased Account aged ninety (90) days or more past invoice date, any monetary out of pocket damages suffered by FGI as a result of Seller’s breach of any representation or warranty herein or of any other provision hereof (whether intentional or unintentional), any adjustments due and any reasonable attorneys’ fees, costs and disbursements due. Seller recognizes that the Reserve Account may, in FGI’s sole discretion, represent bookkeeping entries only and not cash funds. It is further agreed that with respect to the balance in the Reserve Account, FGI is authorized to withhold, without giving prior notice to Seller, such payments and credits otherwise due to Seller under the terms of this Agreement for reasonably anticipated claims or to adequately satisfy reasonably anticipated obligation(s) Seller may owe FGI. Upon the occurrence of an Event of Default, or, in the event Seller shall cease selling Accounts to FGI, FGI shall be under no obligation to pay the amount maintained in the Reserve Account until all Accounts listed on all Schedules of Accounts have been collected or FGI has determined, in its sole and absolute discretion, that it will make no further efforts to collect any Accounts and all sums due FGI hereunder have been paid. Notwithstanding anything set forth herein to the contrary, upon an Event of Default, Seller understands and agrees that the Termination Fee described Section 13 hereof shall be due and payable by Seller in the event that FGI terminates this Agreement following an Event of Default.
(d) In FGI’s sole and absolute discretion, in accordance with the terms of this Agreement, FGI may from time to time, upon receipt of a written request by the Seller, advance to Seller against the purchase price of Eligible Purchased Accounts purchased by Purchaser FGI hereunder, sums up to 70% of the aggregate purchase price of Purchased Accounts outstanding at the time any such advance is made, less: (i) any such Purchased Accounts that are in dispute by an Account Debtor; (ii) any such Purchased Accounts that are not credit approved; (iii); any such Purchased Accounts aged ninety (90) days or more past invoice date; and (iv) any fees, actual or estimated, that are chargeable to the Reserve Account. Any advance shall be payable on demand and shall bear interest at the rate set forth in subsection (e) below from the date such advance is made until the date FGI would otherwise be obligated hereunder and to pay the purchase price of the Purchased Account(s) against which such advance was made.
(e) Interest upon the daily total outstanding principal balance of any Inventory Advances), net of all payments received from Sellers' Purchased Account Debtors or otherwise received by Purchaser on the Sellers' behalf which are credited to the Sellers' account. Interest shall be charged on the Advances to Seller’s Reserve Account at a rate (the "Interest Rate"), equal to the greater of (i) nine and one-half percent (9.5%) 6.75% per annum and (ii) or 2.5% above the rate of interest designated by FGI as its selected “Prime Rate in effect from time to time plus two percent (2%) per annum but in no event to exceed the maximum rate permitted by applicable law. If the Prime Rate changes after the date hereof, the Interest Rate shall be automatically increased Rate” or decreased“Base Rate’, as the case may be, if required hereunder, without notice to Sellers from time to time be (which as of the effective time of each change in date hereof is based upon the Prime Rate. Interest shall be due and payable Wall Street Journal, Money Rates Section which is subject to change) on the last day of each calendar month and may, in Purchaser's sole discretion, be on the net daily balance of all outstanding Purchased Accounts or otherwise charged against to the Reserve Accounts or other sums Account. In the event that may be due to Sellers hereunder. As used herein, the term "Prime Rate" means the rate as published from time to tune by The Wall Street Journal as the base rate for corporate loans at large commercial banks (if more than one such rate is publishedceases to publish a Prime Rate, then the Prime Rate shall be the average of the three largest U.S. money center commercial banks, as determined by FGI. All such interest shall be computed for the actual number of days elapsed on the basis of a year consisting of three hundred sixty (360) days. Any adjustment in FGI’s interest rate, whether downward or upward will become effective on the day in which the prime rate of interest is decreased or increased.
(f) Seller shall unconditionally pay and FGI shall be entitled to receive a one-time non-refundable facility fee in an amount equal to 1.00% of the Facility Amount payable upon closing of the Facility.
(g) Seller shall unconditionally pay and FGI shall be entitled to receive a non-refundable monthly collateral management fee equal to 0.42% of the average monthly balance of Purchased Accounts; with such fee charged monthly to Seller’s Reserve Account or if funds are not available therein, payable by Seller on demand.
(h) The minimum monthly net funds employed during each contract year hereof shall be $500,000; any deficiency will be subject to a Deficiency Assessment.
(i) IT IS THE INTENTION OF THE PARTIES HERETO THAT AS TO ALL PURCHASED ACCOUNTS, THE TRANSACTIONS CONTEMPLATED HEREBY SHALL CONSTITUTE A TRUE PURCHASE AND SALE OF ACCOUNT(S) UNDER § 9-318 OF THE UCC AND AS SUCH, THE SELLER SHALL HAVE NO LEGAL OR EQUITABLE INTEREST IN THE ACCOUNTS SOLD. NEVERTHELESS, IN THE EVENT ALL OR ANY PORTION OF THIS TRANSACTION IS CHARACTERIZED AS A LOAN, THE PARTIES HERETO INTEND TO CONTRACT IN STRICT COMPLIANCE WITH APPLICABLE USURY LAW FROM TIME TO TIME IN EFFECT. IN FURTHERANCE THEREOF SUCH PARTIES STIPULATE AND AGREE THAT NONE OF THE TERMS AND PROVISIONS CONTAINED IN THIS AGREEMENT SHALL EVER BE CONSTRUED TO CREATE A CONTRACT TO PAY, FOR THE USE, FORBEARANCE OR DETENTION OF MONEY, INTEREST IN EXCESS OF THE MAXIMUM RATE (AS HEREINAFTER DEFINED) FROM TIME TO TIME IN EFFECT. NEITHER SELLER, ANY PRESENT OR FUTURE GUARANTOR OR ANY OTHER PERSON HEREAFTER BECOMING LIABLE FOR THE PAYMENT OF THE ADVANCES, SHALL EVER BE LIABLE FOR ANY OBLIGATION THAT MAY BE CHARACTERIZED AS UNEARNED INTEREST THEREON OR SHALL EVER BE REQUIRED TO PAY ANY OBLIGATION THAT MAY BE CHARACTERIZED AS INTEREST THEREON IN EXCESS OF THE MAXIMUM AMOUNT THAT MAY BE LAWFULLY CHARGED UNDER APPLICABLE LAW FROM TIME TO TIME IN EFFECT, AND THE PROVISIONS OF THIS SECTION SHALL CONTROL OVER ALL OTHER PROVISIONS OF THIS AGREEMENT WHICH MAY BE IN CONFLICT THEREWITH. IF ANY INDEBTEDNESS OR OBLIGATION OWED BY SELLER HEREUNDER IS DETERMINED TO BE IN EXCESS OF THE LEGAL MAXIMUM, OR FGI SHALL OTHERWISE COLLECT MONEYS WHICH ARE DETERMINED TO CONSTITUTE INTEREST WHICH WOULD OTHERWISE INCREASE THE INTEREST ON ALL OR ANY PART OF SUCH OBLIGATIONS TO AN AMOUNT IN EXCESS OF THAT PERMITTED TO BE CHARGED BY APPLICABLE LAW THEN IN EFFECT, THEN ALL SUCH SUMS DETERMINED TO CONSTITUTE INTEREST IN EXCESS OF SUCH LEGAL LIMIT SHALL, WITHOUT PENALTY, BE PROMPTLY APPLIED TO REDUCE THE THEN OUTSTANDING OBLIGATIONS OR, AT FGI’S OPTION, RETURNED TO SELLER OR THE OTHER PAYOR THEREOF UPON SUCH DETERMINATION. IF AT ANY TIME THE RATE AT WHICH INTEREST IS PAYABLE HEREUNDER EXCEEDS THE MAXIMUM RATE, THE AMOUNT OUTSTANDING HEREUNDER SHALL CEASE BEARING INTEREST UNTIL SUCH TIME AS THE TOTAL AMOUNT OF INTEREST ACCRUED HEREUNDER EQUALS (BUT DOES NOT EXCEED) THE MAXIMUM RATE APPLICABLE HERETO. AS USED IN THIS SECTION, THE TERM “APPLICABLE LAW” MEANS THE LAWS OF THE STATE OF NEW YORK OR, IF DIFFERENT, THE LAWS OF THE STATE OR TERRITORY IN WHICH THE SELLER RESIDES, WHICHEVER LAW ALLOWS THE GREATER RATE OF INTEREST, AS SUCH LAWS NOW EXIST OR MAY BE CHANGED OR AMENDED OR COME INTO EFFECT IN THE FUTURE AND THE TERM “MAXIMUM RATE” MEANS THE MAXIMUM NON-USURIOUS RATE OF INTEREST THAT FGI IS PERMITTED UNDER APPLICABLE LAW TO CONTRACT FOR, TAKE, CHARGE OR RECEIVE WITH RESPECT TO THE ADVANCES.
(j) Upon FGI’s acceptance of each Purchased Account, FGI shall be the higher or highest sole owner and holder of such Purchased Account. Seller hereby sells, transfers, conveys and assigns to FGI all of its right, title and interest in and to each Purchased Account effective at the time of acceptance thereof by FGI. Seller agrees to execute and deliver to each Account Debtor obligated under an Account and/or a Purchased Account such written notice of sale of the rates published)Purchased Account as FGI may request in the form attached hereto as Schedule 2 or in such form as required by FGI.
(k) FGI shall provide Seller online access via a secured website to information on the Purchased Accounts and a reconciliation of the relationship relating to billing, collection and account maintenance such as aging, posting, error resolution and mailing of statements in the ordinary course of FGI’s business. If All of the foregoing shall be in a format and in such rate is no longer published by The Wall Street Journaldetail, then Purchaser shallas FGI, in its sole discretion select the base or prime rate for corporate loans at a large commercial bank as the "Prime Rate." All interest accruing hereunder and absolute discretion, deems appropriate. Furthermore, FGI’s books and records shall be calculated admissible in evidence without objection as prima facie evidence of the status of the Purchased and non-purchased Accounts and Reserve Account between FGI and Seller. Each statement, report, or accounting rendered or issued by FGI to Seller, if any, and all online information shall be deemed conclusively accurate and binding on Seller unless within fifteen (15) days after the basis date of actual days elapsed (including issuance or posting Seller notifies FGI in writing to the first day but excluding contrary, setting forth with specificity the lastreasons why Seller believes such statement, report, or accounting is inaccurate, as well as what Seller believes to be correct amount(s) plus five (5) business days therefore. FGI’s failure to provide or Seller’s failure to receive such online access shall not relieve Seller of Seller’s obligations under this Agreement or the responsibility of Seller to request such statement and a year of 360 daysSeller’s failure to do so shall nonetheless bind Seller to whatever FGI’s records would have reported.
Appears in 1 contract
Samples: Sale of Accounts and Security Agreement (MamaMancini's Holdings, Inc.)
Purchase Price and Fees. (a) Purchaser shall purchase an Eligible Account at a purchase price equal to the face amount of such Eligible Account less the Reserve Percentage (as defined in paragraph 4 below) of such face amount which shall be credited to the applicable Reserve Account. The purchase price for any Eligible Accounts shall be advanced by Purchaser to the applicable Seller on the date of purchase as directed by such Seller. Sellers that FGI shall pay to Purchaser a discount (the "Discount") Seller for each Eligible Purchased Account purchased hereunder shall equal the Net Invoice Amount thereof less FGI’s fees, as specified below. No discount, credit, allowance or deduction with respect to one-half of one percent (0.5%) of any Purchased Account, unless shown on the face amount of the Eligible Account in question; provided that the Discount for any Eligible Account bearing terms in excess of the standard net 30-day terms an invoice, shall be increased granted or approved by 1.00% for each additional 30 days or fraction thereof. The Discount for an Eligible Seller to any Account shall be due and payable on the earlier of the ninetieth (90th) day after the related invoice date and the date on which Purchaser collects such Eligible Account. Sellers hereby authorize Purchaser to deduct any Discount payable hereunder from the purchase price of Eligible Accounts or any Inventory Advance hereunder or to charge such Discount against the Reserve Accounts or collections on the related Eligible Account, as Purchaser elects at its sole discretionDebtor without FGI’s prior written consent.
(b) Sellers shall pay The purchase price (as computed above), less (i) any Required Reserve Amount or credit balance that FGI, in FGI’s sole and absolute discretion, determines to Purchaser interest on the daily balance of all sums hold, (the "Advances"ii) moneys remitted, paid, or otherwise advanced by Purchaser FGI to Sellers or on behalf of Seller (including any amounts which FGI reasonably determines that Seller may be obligated to pay in the future), and (iii) any other charges provided for Sellers' benefit by this Agreement, shall be payable by FGI to Seller on the Date of Collection.
(c) FGI shall be entitled, in its sole and absolute discretion, to withhold the Required Reserve Amount, and may increase or decrease the Required Reserve Amount or Reserve Percentage at any time and from time to time if FGI deems it necessary to do so in order to protect FGI’s interests. In no event shall Seller permit a Reserve Shortfall to occur. FGI may charge against the Reserve Account any amount for which Seller may be obligated to FGI at any time, whether under the terms of this Agreement, or otherwise, including but not limited to the purchase price of Eligible Accounts purchased by Purchaser hereunder and the outstanding principal balance repayment of any Inventory Advancesover advance, any damages suffered by FGI as a result of Seller’s breach of any provision of Section 4 hereof (whether intentional or unintentional), net of all payments received from Sellers' any adjustments due and any attorneys’ fees, costs and disbursements due. Seller recognizes that the Reserve Account Debtors or otherwise received by Purchaser on the Sellers' behalf which are credited may, in FGI’s sole discretion, represent bookkeeping entries only and not cash funds. It is further agreed that with respect to the Sellers' accountbalance in the Reserve Account, FGI is authorized to withhold, upon giving notice to Seller, such payments and credits otherwise due to Seller under the terms of this Agreement for reasonably anticipated claims or to adequately satisfy reasonably anticipated obligation(s) Seller may owe FGI. Interest Upon the occurrence of an Event of Default, or, in the event Seller shall cease selling Accounts to FGI, FGI shall be charged under no obligation to pay the amount maintained in the Reserve Account until all Accounts listed on all Schedules of Accounts have been collected or FGI has determined, in its sole and absolute discretion, that it will make no further efforts to collect any Accounts and all sums due FGI hereunder have been paid.
(d) In FGI’s sole and absolute discretion, in accordance with the Advances at a rate (the "Interest Rate")terms of this Agreement, equal to the greater of (i) nine and one-half percent (9.5%) per annum and (ii) the Prime Rate in effect FGI may from time to time plus two percent advance to Seller against the purchase price of Purchased Accounts purchased by FGI hereunder, sums up to 75% of the aggregate purchase price of Purchased Accounts outstanding at the time any such advance is made, less: (2%i) per annum but any such Purchased Accounts that are in no event dispute; (ii) any such Purchased Accounts that are not Credit Approved; (iii) any such Purchased Accounts aged ninety (90) days or more past invoice date; and (iv) any fees, actual or reasonably estimated, that are chargeable to exceed the maximum Reserve Account. Any advance shall be payable on demand and shall bear interest at the rate permitted by applicable law. If the Prime Rate changes after set forth in subsection (e) below from the date hereof, such advance is made until the date FGI would otherwise be obligated hereunder to pay the purchase price of the Purchased Account(s) against which such advance was made.
(e) Interest Rate upon the daily net funds employed shall be automatically increased or decreased, as the case may be, if required hereunder, without notice to Sellers from time to time as of the effective time of each change in the Prime Rate. Interest shall be due and payable charged on the last day of each calendar month and mayto Seller’s Reserve Account at a rate greater of 7.50% per annum or 3.00% above the rate of interest designated by FGI as its selected “Prime Rate” or “Base Rate”, in Purchaser's sole discretion, be charged against as the Reserve Accounts or other sums that case may be due to Sellers hereunder. As used herein, the term "Prime Rate" means the rate (which as published from time to tune by The Wall Street Journal as the base rate for corporate loans at large commercial banks (if more than one such rate is published, the Prime Rate will be the higher or highest of the rates published). If such rate date hereof is no longer published by The based upon the Wall Street Journal, Money Rates Section which is subject to change) on the net daily balance of all outstanding Purchased Accounts. In the event that the Wall Street Journal ceases to publish a Prime Rate, then Purchaser shallthe Prime Rate shall be the average of the three largest U.S. money center commercial banks, as determined by FGI. All such interest shall be computed for the actual number of days elapsed on the basis of a year consisting of three hundred sixty (360) days. Any adjustment in FGI’s interest rate, whether downward or upward will become effective on the day in which the prime rate of interest is decreased or increased. If during any month, a net credit balance (i.e., the reserve or credit balance exceeds outstanding Accounts), then Seller agrees to credit FGI’s reserve account as of the last day of each month with interest at a rate equal to 3.00% above the Prime Rate.
(f) Seller shall unconditionally pay and FGI shall be entitled to receive a one time non-refundable facility fee in an amount equal $50,000 payable in immediately available funds upon signing of the Agreement.
(g) Seller shall unconditionally pay and FGI shall be entitled to receive a non-refundable monthly collateral management fee equal to 1.09% of the average monthly balance of Purchased Accounts; with such fee charged monthly to Seller’s Reserve Account or if funds are not available therein, payable by Seller on demand.
(h) The minimum monthly net funds employed during each contract year hereof shall be $1,750,000; any deficiency will be subject to a Deficiency Assessment.
(i) IT IS THE INTENTION OF THE PARTIES HERETO THAT AS TO ALL PURCHASED ACCOUNTS, THE TRANSACTIONS CONTEMPLATED HEREBY SHALL CONSTITUTE A TRUE PURCHASE AND SALE OF ACCOUNT(S) UNDER § 9-318 OF THE UCC AND AS SUCH, THE SELLER SHALL HAVE NO LEGAL OR EQUITABLE INTEREST IN THE ACCOUNTS SOLD. NEVERTHELESS, IN THE EVENT ALL OR ANY PORTION OF THIS TRANSACTION IS CHARACTERIZED AS A LOAN, THE PARTIES HERETO INTEND TO CONTRACT IN STRICT COMPLIANCE WITH APPLICABLE USURY LAW FROM TIME TO TIME IN EFFECT. IN FURTHERANCE THEREOF SUCH PARTIES STIPULATE AND AGREE THAT NONE OF THE TERMS AND PROVISIONS CONTAINED IN THIS AGREEMENT SHALL EVER BE CONSTRUED TO CREATE A CONTRACT TO PAY, FOR THE USE, FORBEARANCE OR DETENTION OF MONEY, INTEREST IN EXCESS OF THE MAXIMUM RATE (AS HEREINAFTER DEFINED) FROM TIME TO TIME IN EFFECT. NEITHER SELLER, ANY PRESENT OR FUTURE GUARANTOR OR ANY OTHER PERSON HEREAFTER BECOMING LIABLE FOR THE PAYMENT OF THE ADVANCES, SHALL EVER BE LIABLE FOR ANY OBLIGATION THAT MAY BE CHARACTERIZED AS UNEARNED INTEREST THEREON OR SHALL EVER BE REQUIRED TO PAY ANY OBLIGATION THAT MAY BE CHARACTERIZED AS INTEREST THEREON IN EXCESS OF THE MAXIMUM AMOUNT THAT MAY BE LAWFULLY CHARGED UNDER APPLICABLE LAW FROM TIME TO TIME IN EFFECT, AND THE PROVISIONS OF THIS SECTION SHALL CONTROL OVER ALL OTHER PROVISIONS OF THIS AGREEMENT WHICH MAY BE IN CONFLICT THEREWITH. IF ANY INDEBTEDNESS OR OBLIGATION OWED BY SELLER HEREUNDER IS DETERMINED TO BE IN EXCESS OF THE LEGAL MAXIMUM, OR FGI SHALL OTHERWISE COLLECT MONEYS WHICH ARE DETERMINED TO CONSTITUTE INTEREST WHICH WOULD OTHERWISE INCREASE THE INTEREST ON ALL OR ANY PART OF SUCH OBLIGATIONS TO AN AMOUNT IN EXCESS OF THAT PERMITTED TO BE CHARGED BY APPLICABLE LAW THEN IN EFFECT, THEN ALL SUCH SUMS DETERMINED TO CONSTITUTE INTEREST IN EXCESS OF SUCH LEGAL LIMIT SHALL, WITHOUT PENALTY, BE PROMPTLY APPLIED TO REDUCE THE THEN OUTSTANDING OBLIGATIONS OR, AT FGI’S OPTION, RETURNED TO SELLER OR THE OTHER PAYOR THEREOF UPON SUCH DETERMINATION. IF AT ANY TIME THE RATE AT WHICH INTEREST IS PAYABLE HEREUNDER EXCEEDS THE MAXIMUM RATE, THE AMOUNT OUTSTANDING HEREUNDER SHALL CEASE BEARING INTEREST UNTIL SUCH TIME AS THE TOTAL AMOUNT OF INTEREST ACCRUED HEREUNDER EQUALS (BUT DOES NOT EXCEED) THE MAXIMUM RATE APPLICABLE HERETO. AS USED IN THIS SECTION, THE TERM “APPLICABLE LAW” MEANS THE LAWS OF THE STATE OF NEW YORK OR, IF DIFFERENT, THE LAWS OF THE STATE OR TERRITORY IN WHICH THE SELLER RESIDES, WHICHEVER LAW ALLOWS THE GREATER RATE OF INTEREST, AS SUCH LAWS NOW EXIST OR MAY BE CHANGED OR AMENDED OR COME INTO EFFECT IN THE FUTURE AND THE TERM “MAXIMUM RATE” MEANS THE MAXIMUM NONUSURIOUS RATE OF INTEREST THAT FGI IS PERMITTED UNDER APPLICABLE LAW TO CONTRACT FOR, TAKE, CHARGE OR RECEIVE WITH RESPECT TO THE ADVANCES.
(j) Upon FGI’s acceptance of each Purchased Account, FGI shall be the sole owner and holder of such Purchased Account. Seller hereby sells, transfers, conveys and assigns to FGI all of its right, title and interest in and to each Purchased Account effective at the time of acceptance thereof by FGI. Seller agrees to execute and deliver to each Account Debtor obligated under an Account and/or a Purchased Account such notice of sale of the Purchased Account as FGI may request in the form attached hereto as Schedule 2 or in such other form as required by FGI.
(k) FGI shall provide Seller online access via a secured website to information on the Purchased Accounts and a reconciliation of the relationship relating to billing, collection and account maintenance such as aging, posting, error resolution and mailing of statements in the ordinary course of FGI’s business. All of the foregoing shall be in a format and in such detail, as FGI, in its sole discretion select the base or prime rate for corporate loans at a large commercial bank as the "Prime Rate." All interest accruing hereunder and absolute discretion, deems appropriate. Furthermore, FGI’s books and records shall be calculated admissible in evidence without objection as prima facie evidence of the status of the Purchased and non-purchased Accounts and Reserve Account between FGI and Seller. Each statement, report, or accounting rendered or issued by FGI to Seller, if any, and all online information shall be deemed conclusively accurate and binding on Seller unless within fifteen (15) days after the basis date of actual days elapsed (including issuance or posting Seller notifies FGI to the first day but excluding contrary by registered or certified mail, setting forth with specificity the lastreasons why Seller believes such statement, report, or accounting is inaccurate, as well as what Seller believes to be correct amount(s) plus five (5) business days therefore. FGI’s failure to provide or Seller’s failure to receive such online access shall not relieve Seller of Seller’s obligations under this Agreement or the responsibility of Seller to request such statement and a year of 360 daysSeller’s failure to do so shall nonetheless bind Seller to whatever FGI’s records would have reported.
Appears in 1 contract
Samples: Sale of Accounts and Security Agreement (Overland Storage Inc)
Purchase Price and Fees. (a) Purchaser shall purchase an Eligible Account at a purchase price equal to the face amount of such Eligible Account less the Reserve Percentage (as defined in paragraph 4 below) of such face amount which shall be credited to the applicable Reserve Account. The purchase price for any Eligible Accounts shall be advanced by Purchaser to the applicable Seller on the date of purchase as directed by such Seller. Sellers that FGI shall pay to Purchaser a discount (the "Discount") Seller for each Eligible Purchased Account purchased hereunder shall equal the Net Invoice Amount thereof less FGI’s fees, as specified below. No discount, credit, allowance or deduction with respect to one-half of one percent (0.5%) of any Purchased Account, unless shown on the face amount of the Eligible Account in question; provided that the Discount for any Eligible Account bearing terms in excess of the standard net 30-day terms an invoice, shall be increased granted or approved by 1.00% for each additional 30 days or fraction thereof. The Discount for an Eligible Seller to any Account shall be due and payable on the earlier of the ninetieth (90th) day after the related invoice date and the date on which Purchaser collects such Eligible Account. Sellers hereby authorize Purchaser to deduct any Discount payable hereunder from the purchase price of Eligible Accounts or any Inventory Advance hereunder or to charge such Discount against the Reserve Accounts or collections on the related Eligible Account, as Purchaser elects at its sole discretionDebtor without FGI’s prior written consent.
(b) Sellers shall pay The purchase price (as computed above), less (i) any Required Reserve Amount or credit balance that FGI, in FGI’s sole and absolute discretion, determines to Purchaser interest on the daily balance of all sums hold, (the "Advances"ii) moneys remitted, paid, or otherwise advanced by Purchaser FGI to Sellers or on behalf of Seller (including any amounts which FGI reasonably determines that Seller may be obligated to pay in the future), and (iii) any other charges provided for Sellers' benefit by this Agreement, shall be payable by FGI to Seller on the Date of Collection.
(c) FGI shall be entitled, in its sole and absolute discretion, to withhold the Required Reserve Amount, and may increase or decrease the Required Reserve Amount or Reserve Percentage at any time and from time to time if FGI deems it necessary to do so in order to protect FGI’s interests. In no event shall Seller permit a Reserve Shortfall to occur. FGI may charge against the Reserve Account any amount for which Seller may be obligated to FGI at any time, whether under the terms of this Agreement, or otherwise, including but not limited to the purchase price of Eligible Accounts purchased by Purchaser hereunder and the outstanding principal balance repayment of any Inventory Advancesover advance, any damages suffered by FGI as a result of Seller’s breach of any provision of Section 4 hereof (whether intentional or unintentional), net of all payments received from Sellers' any adjustments due and any attorneys’ fees, costs and disbursements due. Seller recognizes that the Reserve Account Debtors or otherwise received by Purchaser on the Sellers' behalf which are credited may, in FGI’s sole discretion, represent bookkeeping entries only and not cash funds. It is further agreed that with respect to the Sellers' accountbalance in the Reserve Account, FGI is authorized to withhold, without giving prior notice to Seller, such payments and credits otherwise due to Seller under the terms of this Agreement for reasonably anticipated claims or to adequately satisfy reasonably anticipated obligation(s) Seller may owe FGI. Interest Upon the occurrence of an Event of Default, or, in the event Seller shall cease selling Accounts to FGI, FGI shall be charged under no obligation to pay the amount maintained in the Reserve Account until all Accounts listed on all Schedules of Accounts have been collected or FGI has determined, in its sole and absolute discretion, that it will make no further efforts to collect any Accounts and all sums due FGI hereunder have been paid.
(d) In FGI’s sole and absolute discretion, in accordance with the Advances at a rate (the "Interest Rate")terms of this Agreement, equal to the greater of (i) nine and one-half percent (9.5%) per annum and (ii) the Prime Rate in effect FGI may from time to time plus two percent advance to Seller against the purchase price of Purchased Accounts purchased by FGI hereunder, sums up to 75% of the aggregate purchase price of Purchased Accounts outstanding at the time any such advance is made, less: (2%i) any such Purchased Accounts that are in dispute; (ii) any such Purchased Accounts that are not credit approved; (iii); any such Purchased Accounts aged ninety (90) days or more past invoice date; and (iv) any fees, actual or estimated, that are chargeable to the Reserve Account. Any advance shall be payable on demand and shall bear interest at the rate set forth in subsection (e) below from the date such advance is made until the date FGI would otherwise be obligated hereunder to pay the purchase price of the Purchased Account(s) against which such advance was made.
(e) Interest upon the daily total outstanding balance of any Purchased Account shall be charged to Seller’s Reserve Account at a rate greater of 8.00% per annum but in no event to exceed or 3.00% above the maximum rate permitted of interest designated by applicable law. If the FGI as its selected “Prime Rate changes after the date hereof, the Interest Rate shall be automatically increased Rate” or decreased“Base Rate’, as the case may be, if required hereunder, without notice to Sellers from time to time be (which as of the effective time date hereof is based upon the Wall Street Journal, Money Rates Section which is subject to change) on the net daily balance of each change in all outstanding Purchased Accounts. In the event that the Wall Street Journal ceases to publish a Prime Rate, then the Prime Rate. Interest Rate shall be due and payable the average of the three largest U.S. money center commercial banks, as determined by FGI. All such interest shall be computed for the actual number of days elapsed on the basis of a year consisting of three hundred sixty (360) days. Any adjustment in FGI’s interest rate, whether downward or upward will become effective on the day in which the prime rate of interest is decreased or increased. If during any month, a net credit balance (i.e., the reserve or credit balance exceeds outstanding Accounts), then Seller agrees to credit FGI’s reserve account as of the last day of each calendar month and may, in Purchaser's sole discretion, be charged against with interest at a rate equal to 3.00% above the Reserve Accounts or other sums that may be due to Sellers hereunder. As used herein, the term "Prime Rate" means .
(f) Seller shall unconditionally pay and FGI shall be entitled to receive a one time non-refundable facility fee in an amount equal $100,000 payable in immediately available funds upon signing of the rate as published from time Agreement.
(g) Seller shall unconditionally pay and FGI shall be entitled to tune receive a non-refundable monthly collateral management fee equal to 0.58% of the average monthly balance of Purchased Accounts; with such fee charged monthly to Seller’s Reserve Account or if funds are not available therein, payable by Seller on demand.
(h) The Wall Street Journal as the base rate for corporate loans at large commercial banks (if more than one such rate is published, the Prime Rate minimum monthly net funds employed during each contract year hereof shall be $2,500,000; any deficiency will be subject to a Deficiency Assessment.
(i) IT IS THE INTENTION OF THE PARTIES HERETO THAT AS TO ALL PURCHASED ACCOUNTS, THE TRANSACTIONS CONTEMPLATED HEREBY SHALL CONSTITUTE A TRUE PURCHASE AND SALE OF ACCOUNT(S) UNDER § 9-318 OF THE UCC AND AS SUCH, THE SELLER SHALL HAVE NO LEGAL OR EQUITABLE INTEREST IN THE ACCOUNTS SOLD. NEVERTHELESS, IN THE EVENT ALL OR ANY PORTION OF THIS TRANSACTION IS CHARACTERIZED AS A LOAN, THE PARTIES HERETO INTEND TO CONTRACT IN STRICT COMPLIANCE WITH APPLICABLE USURY LAW FROM TIME TO TIME IN EFFECT. IN FURTHERANCE THEREOF SUCH PARTIES STIPULATE AND AGREE THAT NONE OF THE TERMS AND PROVISIONS CONTAINED IN THIS AGREEMENT SHALL EVER BE CONSTRUED TO CREATE A CONTRACT TO PAY, FOR THE USE, FORBEARANCE OR DETENTION OF MONEY, INTEREST IN EXCESS OF THE MAXIMUM RATE (AS HEREINAFTER DEFINED) FROM TIME TO TIME IN EFFECT. NEITHER SELLER, ANY PRESENT OR FUTURE GUARANTOR OR ANY OTHER PERSON HEREAFTER BECOMING LIABLE FOR THE PAYMENT OF THE ADVANCES, SHALL EVER BE LIABLE FOR ANY OBLIGATION THAT MAY BE CHARACTERIZED AS UNEARNED INTEREST THEREON OR SHALL EVER BE REQUIRED TO PAY ANY OBLIGATION THAT MAY BE CHARACTERIZED AS INTEREST THEREON IN EXCESS OF THE MAXIMUM AMOUNT THAT MAY BE LAWFULLY CHARGED UNDER APPLICABLE LAW FROM TIME TO TIME IN EFFECT, AND THE PROVISIONS OF THIS SECTION SHALL CONTROL OVER ALL OTHER PROVISIONS OF THIS AGREEMENT WHICH MAY BE IN CONFLICT THEREWITH. IF ANY INDEBTEDNESS OR OBLIGATION OWED BY SELLER HEREUNDER IS DETERMINED TO BE IN EXCESS OF THE LEGAL MAXIMUM, OR FGI SHALL OTHERWISE COLLECT MONEYS WHICH ARE DETERMINED TO CONSTITUTE INTEREST WHICH WOULD OTHERWISE INCREASE THE INTEREST ON ALL OR ANY PART OF SUCH OBLIGATIONS TO AN AMOUNT IN EXCESS OF THAT PERMITTED TO BE CHARGED BY APPLICABLE LAW THEN IN EFFECT, THEN ALL SUCH SUMS DETERMINED TO CONSTITUTE INTEREST IN EXCESS OF SUCH LEGAL LIMIT SHALL, WITHOUT PENALTY, BE PROMPTLY APPLIED TO REDUCE THE THEN OUTSTANDING OBLIGATIONS OR, AT FGI’S OPTION, RETURNED TO SELLER OR THE OTHER PAYOR THEREOF UPON SUCH DETERMINATION. IF AT ANY TIME THE RATE AT WHICH INTEREST IS PAYABLE HEREUNDER EXCEEDS THE MAXIMUM RATE, THE AMOUNT OUTSTANDING HEREUNDER SHALL CEASE BEARING INTEREST UNTIL SUCH TIME AS THE TOTAL AMOUNT OF INTEREST ACCRUED HEREUNDER EQUALS (BUT DOES NOT EXCEED) THE MAXIMUM RATE APPLICABLE HERETO. AS USED IN THIS SECTION, THE TERM “APPLICABLE LAW” MEANS THE LAWS OF THE STATE OF NEW YORK OR, IF DIFFERENT, THE LAWS OF THE STATE OR TERRITORY IN WHICH THE SELLER RESIDES, WHICHEVER LAW ALLOWS THE GREATER RATE OF INTEREST, AS SUCH LAWS NOW EXIST OR MAY BE CHANGED OR AMENDED OR COME INTO EFFECT IN THE FUTURE AND THE TERM “MAXIMUM RATE” MEANS THE MAXIMUM NONUSURIOUS RATE OF INTEREST THAT FGI IS PERMITTED UNDER APPLICABLE LAW TO CONTRACT FOR, TAKE, CHARGE OR RECEIVE WITH RESPECT TO THE ADVANCES.
(j) Upon FGI’s acceptance of each Purchased Account, FGI shall be the higher or highest sole owner and holder of such Purchased Account. Seller hereby sells, transfers, conveys and assigns to FGI all of its right, title and interest in and to each Purchased Account effective at the time of acceptance thereof by FGI. Seller agrees to execute and deliver to each Account Debtor obligated under a Foreign Account such written notice of sale of the rates published)Purchased Account as FGI may request in the form attached hereto as Schedule 3(j) or in such form as required by FGI.
(k) FGI shall provide Seller online access via a secured website to information on the Purchased Accounts and a reconciliation of the relationship relating to billing, collection and account maintenance such as aging, posting, error resolution and mailing of statements in the ordinary course of FGI’s business. If All of the foregoing shall be in a format and in such rate is no longer published by The Wall Street Journaldetail, then Purchaser shallas FGI, in its sole discretion select the base or prime rate for corporate loans at a large commercial bank as the "Prime Rate." All interest accruing hereunder and absolute discretion, deems appropriate. Furthermore, FGI’s books and records shall be calculated admissible in evidence without objection as prima facie evidence of the status of the Purchased and non-purchased Accounts and Reserve Account between FGI and Seller. Each statement, report, or accounting rendered or issued by FGI to Seller, if any, and all online information shall be deemed conclusively accurate and binding on Seller unless within twenty-one (21) days after the basis date of actual days elapsed (including issuance or posting Seller notifies FGI to the first day but excluding contrary by registered or certified mail, setting forth with specificity the lastreasons why Seller believes such statement, report, or accounting is inaccurate, as well as what Seller believes to be correct amount(s) plus five (5) business days therefore. FGI’s failure to provide or Seller’s failure to receive such online access shall not relieve Seller of Seller’s obligations under this Agreement or the responsibility of Seller to request such statement and a year of 360 daysSeller’s failure to do so shall nonetheless bind Seller to whatever FGI’s records would have reported.
Appears in 1 contract
Samples: Sale of Accounts and Security Agreement (Ocz Technology Group Inc)
Purchase Price and Fees. (a) Purchaser shall purchase an Eligible Account at a purchase price equal to the face amount of such Eligible Account less the Reserve Percentage (as defined in paragraph 4 below) of such face amount which shall be credited to the applicable Reserve Account. The purchase price for any Eligible Accounts the Notes shall be advanced by Purchaser to the applicable Seller on the date of purchase as directed by such Seller. Sellers shall pay to Purchaser a discount (the "Discount") for each Eligible Account purchased hereunder equal to one-half of one percent (0.5%) 100% of the face principal amount of the Eligible Account in question; provided that the Discount for any Eligible Account bearing terms in excess of the standard net 30-day terms shall be increased by 1.00% for each additional 30 days or fraction thereof. The Discount for an Eligible Account shall be due and payable on the earlier of the ninetieth (90th) day after the related invoice date and the date on which Purchaser collects such Eligible Account. Sellers hereby authorize Purchaser to deduct any Discount payable hereunder from the purchase price of Eligible Accounts or any Inventory Advance hereunder or to charge such Discount against the Reserve Accounts or collections on the related Eligible Account, as Purchaser elects at its sole discretion.
(b) Sellers As additional consideration for the Commitments, the Borrower shall pay to Purchaser interest on the daily balance of all sums (the "Advances") remitted, paid, or otherwise advanced by Purchaser to Sellers or for Sellers' benefit (including but not limited following fees to the purchase price of Eligible Accounts purchased by Purchaser hereunder and the outstanding principal balance of any Inventory Advances), net of all payments received from Sellers' Account Debtors or otherwise received by Purchaser on the Sellers' behalf which are credited to the Sellers' account. Interest shall be charged on the Advances at a rate (the "Interest Rate"), equal to the greater of Purchasers:
(i) nine and one-half percent (9.5%) per annum and An amount equal to 1.0% of the Commitment, payable in cash on the date of this Agreement;
(ii) An amount equal to 1.0% of the Prime Rate in effect from time to time plus two percent Commitments (2%) per annum but in no event to exceed the maximum rate permitted by applicable law. If the Prime Rate changes after the date hereofsuch amount, the Interest Rate shall be automatically increased or decreased“Approval Fee Amount”), as the case may be, if required hereunder, without notice to Sellers from time to time as of the effective time of each change in the Prime Rate. Interest shall be due and payable on the last day third Trading Day after the later of each calendar month (x) the announcement of the FDA Approval (such announcement, the “Approval Announcement”) and may(y) satisfaction (or waiver by the Required Purchasers) of the Heplisav-B Draw Condition, in Purchaser's sole discretion, be charged against the Reserve Accounts or other sums that which amount may be due paid either (1) in cash or (2) by delivering to Sellers hereunder. As used hereinthe Purchasers a number of shares of Common Stock equal to (x) the Approval Fee Amount divided by (y) the arithmetic average of the closing price per share of the Common Stock for the Trading Day immediately prior to the Approval Announcement and the closing price per share of the Common Stock for the Trading Day immediately following the Approval Announcement, rounded up to the nearest whole number (for the avoidance doubt, the term "Prime Rate" means parties agree that the rate as published shares of Common Stock delivered to the Purchasers under this section need not be Freely Tradeable Shares); provided, however, that the Borrower may not pay the Approval Fee Amount by delivering shares of Common Stock (A) during the occurrence of a Delisting Event, (B) at any time following a Major Transaction, (C) at any time following the occurrence, and during the continuance, of an Event of Default, (D) from time to tune by The Wall Street Journal as the base rate for corporate loans at large commercial banks (if more than one such rate is published, the Prime Rate will be the higher or highest of the rates published). If such rate is no longer published by The Wall Street Journal, then Purchaser shall, in its sole discretion select the base or prime rate for corporate loans at a large commercial bank as the "Prime Rate." All interest accruing hereunder shall be calculated on the basis of actual days elapsed (including and after the first day but excluding date on which the lastBorrower determines it is or may be required to withhold any Taxes as a result of this Section 2.4(b)(ii) plus five (5) business days and a year of 360 days.payment in the form contemplated by clause (2) hereof, or
Appears in 1 contract
Samples: Note Purchase Agreement (Dynavax Technologies Corp)
Purchase Price and Fees. (a) Purchaser shall purchase an Eligible Account at a purchase price equal to the face amount of such Eligible Account less the Reserve Percentage (as defined in paragraph 4 below) of such face amount which shall be credited to the applicable Reserve Account. The purchase price for any Eligible Accounts shall be advanced by Purchaser to the applicable Seller on the date of purchase as directed by such Seller. Sellers Seller shall pay to Purchaser a discount line maintenance fee (the "Discount") for each Eligible Account purchased hereunder equal to one-half of one percent (0.5%) 0.40% of the face amount of the Eligible Account in question; provided that the Discount for any Eligible Account bearing terms in excess of the standard net 30-day terms shall be increased by 1.00% for each additional 30 days or fraction thereof. The Discount for an Eligible Account shall be due and payable on the earlier of the ninetieth (90th) 90th day after the related invoice date and the date on which Purchaser collects such Eligible Account. Sellers Seller hereby authorize authorizes Purchaser to deduct any Discount payable hereunder from the purchase price of Eligible Accounts or any Inventory Advance hereunder or to charge such Discount against the Reserve Accounts or collections on the related Eligible Account, as Purchaser elects at its sole discretion.
(b) Sellers Seller shall pay to Purchaser an annual commitment fee in the amount of 0.50% of the Commitment, payable on the date of the first purchase hereunder and on each anniversary of the date of this Agreement during the Term (as defined in paragraph 14). Seller hereby authorizes Purchaser to deduct the commitment fee from the purchase price for Eligible Accounts or to charge the commitment fee against the Reserve Account, as Purchaser elects at its sole discretion.
(c) Seller shall pay to Purchaser interest on the daily balance of all sums (the "Advances") remitted, paid, or otherwise advanced by Purchaser to Sellers Seller or for Sellers' Seller's benefit (including but not limited to the purchase price of Eligible Accounts purchased by Purchaser hereunder and the outstanding principal balance of any Inventory Advanceshereunder), net of all payments received from Sellers' Seller's Account Debtors or otherwise received by Purchaser on the Sellers' behalf Seller's behalf, which are credited to the Sellers' Seller's account. Interest shall be charged on the Advances at a rate (the "Interest Rate"), equal to the greater of (i) nine and one-half percent (9.5%) 10.50% per annum and (ii) the Prime Rate in effect from time to time plus two percent (2%) 3.5% per annum but in no event to exceed the maximum rate permitted by applicable law. If the Prime Rate changes after the date hereof, the Interest Rate shall be automatically increased or decreased, as the case may be, if required hereunder, without notice to Sellers from time to time as of the effective time of each change in the Prime Rate. Interest shall be due and payable on the last day of each calendar month and may, in Purchaser's sole discretion, be charged against the Reserve Accounts or other sums that may be due to Sellers hereunder. As used herein, the term "Prime Rate" means the rate as published from time to tune by The Wall Street Journal as the base rate for corporate loans at large commercial banks (if more than one such rate is published, the Prime Rate will be the higher or highest of the rates published). If such rate is no longer published by The Wall Street Journal, then Purchaser shall, in its sole discretion select the base or prime rate for corporate loans at a large commercial bank as the "Prime Rate." All interest accruing hereunder shall be calculated on the basis of actual days elapsed (including the first day but excluding the last) plus five (5) business days and a year of 360 days.
Appears in 1 contract
Purchase Price and Fees. (a) Purchaser shall purchase an Eligible Account at a purchase price equal to the face amount of such Eligible Account less the Reserve Percentage (as defined in paragraph 4 below) of such face amount which shall be credited to the applicable Reserve Account. The purchase price for any Eligible Accounts shall be advanced by Purchaser to the applicable Seller on the date of purchase as directed by such Seller. Sellers that FGI shall pay to Purchaser a discount (the "Discount") Seller for each Eligible Purchased Account purchased hereunder shall equal the Net Invoice Amount thereof less FGI's fees, as specified below. No discount, credit, allowance or deduction with respect to one-half of one percent (0.5%) of any Purchased Account, unless shown on the face amount of the Eligible Account in question; provided that the Discount for any Eligible Account bearing terms in excess of the standard net 30-day terms an invoice, shall be increased granted or approved by 1.00% for each additional 30 days or fraction thereof. The Discount for an Eligible Seller to any Account shall be due and payable on the earlier of the ninetieth (90th) day after the related invoice date and the date on which Purchaser collects such Eligible Account. Sellers hereby authorize Purchaser to deduct any Discount payable hereunder from the purchase price of Eligible Accounts or any Inventory Advance hereunder or to charge such Discount against the Reserve Accounts or collections on the related Eligible Account, as Purchaser elects at its sole discretionDebtor without FGI's prior written consent.
(b) Sellers shall pay The purchase price (as computed above), less (i) any Required Reserve Amount or credit balance that FGI, in FGI's sole and absolute discretion, determines to Purchaser interest on the daily balance of all sums hold, (the "Advances"ii) moneys remitted, paid, or otherwise advanced by Purchaser FGI to Sellers or on behalf of Seller (including any amounts which FGI reasonably determines that Seller may be obligated to pay in the future), and (iii) any other charges provided for Sellers' benefit by this Agreement, shall be payable by FGI to Seller on the Date of Collection.
(c) FGI shall be entitled, in its sole and absolute discretion, to withhold the Required Reserve Amount, and may increase or decrease the Required Reserve Amount or Reserve Percentage at any time and from time to time if FGI deems it necessary to do so in order to protect FGI's interests. In no event shall Seller permit a Reserve Shortfall to occur. FGI may charge against the Reserve Account any amount for which Seller may be obligated to FGI at any time, whether under the terms of this Agreement, or otherwise, including but not limited to the purchase price of Eligible Accounts purchased by Purchaser hereunder and the outstanding principal balance repayment of any Inventory Advancesover advance, any damages suffered by FGI as a result of Seller's breach of any provision of Section 4 hereof (whether intentional or unintentional), net of all payments received from Sellersany adjustments due and any attorneys' fees, costs and disbursements due. Seller recognizes that the Reserve Account Debtors or otherwise received by Purchaser on the Sellers' behalf which are credited may, in FGI's sole discretion, represent bookkeeping entries only and not cash funds. It is further agreed that with respect to the Sellers' accountbalance in the Reserve Account, FGI is authorized to withhold, without giving prior notice to Seller, such payments and credits otherwise due to Seller under the terms of this Agreement for reasonably anticipated claims or to adequately satisfy reasonably anticipated obligation(s) Seller may owe FG!. Interest Upon the occurrence of an Event of Default, or, in the event Seller shall cease selling Accounts to FGI, FGI shall be charged under no obligation to pay the amount maintained in the Reserve Account until all Accounts listed on all Schedules of Accounts have been collected or FGI has determined, in its sole and absolute discretion, that it will make no further efforts to collect any Accounts and all sums due FGI hereunder have been paid.
(d) In FGI's sole and absolute discretion, in accordance with the Advances at a rate (the "Interest Rate")terms of this Agreement, equal to the greater of (i) nine and one-half percent (9.5%) per annum and (ii) the Prime Rate in effect FGI may from time to time plus two percent advance to Seller against the purchase price of Purchased Accounts purchased by FGI hereunder, sums up to 80% of the aggregate purchase price of Purchased Accounts outstanding at the time any such advance is made, less: (2%i) any such Purchased Accounts that are in dispute; (ii) any such Purchased Accounts that are not credit approved; (iii); any such Purchased Accounts aged nintey (90) days or more past invoice date; and (iv) any fees, actual or estimated, that are chargeable to the Reserve Account. Any advance shall be payable on demand and shall bear interest at the rate set forth in subsection ( e) below from the date such advance is made until the date FGI would otherwise be obligated hereunder to pay the purchase price of the Purchased Account(s) against which such advance was made.
(e) Interest upon the daily total outstanding balance of any Purchased Account shall be charged to Seller's Reserve Account at a rate greater of 7.00% per annum but in no event to exceed or 3.00% above the maximum rate permitted of interest designated by applicable law. If the FGI as its selected "Prime Rate changes after the date hereof, the Interest Rate shall be automatically increased Rate" or decreased"Base Rate', as the case may be, if required hereunder, without notice to Sellers from time to time be (which as of the effective time date hereof is based upon the Wall Street Journal, Money Rates Section which is subject to change) on the net daily balance of each change in all outstanding Purchased Accounts. In the event that the Wall Street Journal ceases to publish a Prime Rate, then the Prime Rate. Interest Rate shall be due and payable the average of the three largest U.S. money center commercial banks, as determined by FG!. All such interest shall be computed for the actual number of days elapsed on the basis of a year consisting of three hundred sixty (360) days. Any adjustment in FGI's interest rate, whether downward or upward will become effective on the day in which the prime rate of interest is decreased or increased. If during any month, a net credit balance (i.e., the reserve or credit balance exceeds outstanding Accounts), then Seller agrees to credit FGI's reserve account as of the last day of each calendar month and may, in Purchaser's sole discretion, be charged against with interest at a rate equal to 3.00% above the Reserve Accounts or other sums that may be due to Sellers hereunder. As used herein, the term "Prime Rate" means ,
(f) Seller shall unconditionally pay and FGI shall be entitled to receive a one time non-refundable facility fee in an amount equal $40,000 payable in immediately available funds upon signing of the rate as published from time Agreement.
(g) Seller shall unconditionally pay and FGI shall be entitled to tune receive a non-refundable monthly collateral management fee equal to 0.87% of the average monthly balance of Purchased Accounts; with such fee charged monthly to Seller's Reserve Account or if funds are not available therein, payable by Seller on demand.
(h) The Wall Street Journal as the base rate for corporate loans at large commercial banks (if more than one such rate is published, the Prime Rate minimum monthly net funds employed during each contract year hereof shall be $1,500,00; any deficiency will be subject to a Deficiency Assessment.
(i) IT IS THE INTENTION OF THE PARTIES HERETO THAT AS TO ALL PURCHASED ACCOUNTS, THE TRANSACTIONS CONTEMPLATED HEREBY SHALL CONSTITUTE A TRUE PURCHASE AND SALE OF ACCOUNT(S) UNDER § 9-318 OF THE UCC AND AS SUCH, THE SELLER SHALL HAVE NO LEGAL OR EQUITABLE INTEREST IN THE ACCOUNTS SOLD. NEVERTHELESS, IN THE EVENT ALL OR ANY PORTION OF THIS TRANSACTION IS CHARACTERIZED AS A LOAN, THE PARTIES HERETO INTEND TO CONTRACT IN STRICT COMPLIANCE WITH APPLICABLE USURY LAW FROM TIME TO TIME IN EFFECT. IN FURTHERANCE THEREOF SUCH PARTIES STIPULATE AND AGREE THAT NONE OF THE TERMS AND PROVISIONS CONTAINED IN THIS AGREEMENT SHALL EVER BE CONSTRUED TO CREATE A CONTRACT TO PAY, FOR THE USE, FORBEARANCE OR DETENTION OF MONEY, INTEREST IN EXCESS OF THE MAXIMUM RATE (AS HEREINAFTER DEFINED) FROM TIME TO TIME IN EFFECT. NEITHER SELLER, ANY PRESENT OR FUTURE GUARANTOR OR ANY OTHER PERSON HEREAFTER BECOMING LIABLE FOR THE PAYMENT OF THE ADVANCES, SHALL EVER BE LIABLE FOR ANY OBLIGATION THAT MAY BE CHARACTERIZED AS UNEARNED INTEREST HEREON OR SHALL EVER BE REQUIRED TO PAY ANY OBLIGATION THAT MA Y BE CHARACTERIZED AS INTEREST THEREON IN EXCESS OF THE MAXIMUM AMOUNT THAT MAY BE LAWFULLY CHARGED UNDER APPLICABLE LAW FROM TIME TO TIME IN EFFECT, AND THE PROVISIONS OF THIS SECTION SHALL CONTROL OVER ALL OTHER PROVISIONS OF THIS AGREEMENT WHICH MAY BE IN CONFLICT THEREWITH. IF ANY INDEBTEDNESS OR OBLIGATION OWED BY SELLER HEREUNDER IS DETERMINED TO BE IN EXCESS OF THE LEGAL MAXIMUM, OR FGI SHALL OTHERWISE COLLECT MONEYS WHICH ARE DETERMINED TO CONSTITUTE INTEREST WHICH WOULD OTHERWISE INCREASE THE INTEREST ON ALL OR ANY PART OF SUCH OBLIGATIONS TO AN AMOUNT IN EXCESS OF THAT PERMITTED TO BE CHARGED BY APPLICABLE LAW THEN IN EFFECT, THEN ALL SUCH SUMS DETERMINED TO CONSTITUTE INTEREST IN EXCESS OF SUCH LEGAL LIMIT SHALL, WITHOUT PENALTY, BE PROMPTLY APPLIED TO REDUCE THE THEN OUTSTANDING OBLIGATIONS OR, AT FGI'S OPTION, RETURNED TO SELLER OR THE OTHER PAYOR THEREOF UPON SUCH DETERMINATION. IF AT ANY TIME THE RATE AT WHICH INTEREST IS PAYABLE HEREUNDER EXCEEDS THE MAXIMUM RATE, THE AMOUNT OUTSTANDING HEREIJNDER SHALL CEASE BEARING INTEREST UNTIL SUCH TIME AS THE TOTAL AMOUNT OF INTEREST ACCRUED HEREUNDER EQUALS (BUT DOES NOT EXCEED) THE MAXIMUM RATE APPLICABLE HERETO. AS USED IN THIS SECTION, THE TERM "APPLICABLE LAW" MEANS THE LAWS OF THE STATE OF NEW YORK OR, IF DIFFERENT, THE LAWS OF THE STATE OR TERRITORY IN WHICH THE SELLER RESIDES, WHICHEVER LAW ALLOWS THE GREATER RATE OF INTEREST, AS SUCH LAWS NOW EXIST OR MAY BE CHANGED OR AMENDED OR COME INTO EFFECT IN THE FUTURE AND THE TERM "MAXIMUM RATE" MEANS THE MAXIMUM NON USURIOUS RATE OF INTEREST THAT FGI IS PERMITTED UNDER APPLICABLE LAW TO CONTRACT FOR, TAKE, CHARGE OR RECEIVE WITH RESPECT TO THE ADVANCES.
(j) Upon FGI's acceptance of each Purchased Account, FGI shall be the higher or highest sole owner and holder of such Purchased Account. Seller hereby sells, transfers, conveys and assigns to FGI all of its right, title and interest in and to each Purchased Account effective at the time of acceptance thereof by FGI. Seller agrees to execute and deliver to each Account Debtor obligated under an Account and/or a Purchased Account such written notice of sale of the rates published)Purchased Account as FGI may request in the form attached hereto as Schedule 2 or in such form as required by FGI.
(k) FGI shall provide Seller online access via a secured website to information on the Purchased Accounts and a reconciliation of the relationship relating to billing, collection and account maintenance such as aging, posting, error resolution and mailing of statements in the ordinary course of FGI's business. If All of the foregoing shall be in a format and in such rate is no longer published by The Wall Street Journaldetail, then Purchaser shallas FGI, in its sole discretion select the base or prime rate for corporate loans at a large commercial bank as the "Prime Rate." All interest accruing hereunder and absolute discretion, deems appropriate. Furthermore, FGI's books and records shall be calculated admissible in evidence without objection as prima facie evidence of the status of the Purchased and non-purchased Accounts and Reserve Account between FGI and Seller. Each statement, report, or accounting rendered or issued by FGI to Seller, if any, and all online information shall be deemed conclusively accurate and binding on Seller unless within fifteen (15) days after the basis date of actual days elapsed (including issuance or posting Seller notifies FGI to the first day but excluding contrary by registered or certified mail, setting forth with specificity the lastreasons why Seller believes such statement, report, or accounting is inaccurate, as well as what Seller believes to be correct amount(s) plus five (5) business days therefore. FGI's failure to provide or Seller's failure to receive such online access shall not relieve Seller of Seller's obligations under this Agreement or the responsibility of Seller to request such statement and a year of 360 daysSeller's failure to do so shall nonetheless bind Seller to whatever FGl's records would have reported.
Appears in 1 contract
Purchase Price and Fees. (a) Purchaser shall purchase an Eligible Account at a purchase price equal to the face amount of such Eligible Account less the Reserve Percentage (as defined in paragraph 4 below) of such face amount which shall be credited to the applicable Reserve Account. The purchase price for each Purchased Account and its Related Rights shall equal the Net Invoice Amount of such Purchased Account less (i) any Eligible Accounts portion thereof that represents an obligation to pay PST and (ii) FGI’s fees, as determined in accordance with Section 3(h). No discount, credit, allowance or deduction with respect to any Purchased Account, unless shown on the face of the invoice delivered to FGI prior to FGI’s purchase of such Account, shall be advanced granted or approved by Purchaser Seller to the applicable Seller on the date of purchase as directed by such Seller. Sellers shall pay to Purchaser a discount (the "Discount") for each Eligible any Account purchased hereunder equal to one-half of one percent (0.5%) of the face amount of the Eligible Account in question; provided that the Discount for any Eligible Account bearing terms in excess of the standard net 30-day terms shall be increased by 1.00% for each additional 30 days or fraction thereof. The Discount for an Eligible Account shall be due and payable on the earlier of the ninetieth (90th) day after the related invoice date and the date on which Purchaser collects such Eligible Account. Sellers hereby authorize Purchaser to deduct any Discount payable hereunder from the purchase price of Eligible Accounts or any Inventory Advance hereunder or to charge such Discount against the Reserve Accounts or collections on the related Eligible Account, as Purchaser elects at its sole discretionDebtor without FGI’s prior written consent.
(b) Sellers shall pay The Purchase Price for a Purchased Account and its Related Rights less (i) any Required Reserve Amount or credit balance that FGI, in FGI’s sole and absolute discretion, determines to Purchaser interest on hold, (ii) the daily outstanding balance of all sums (the "Advances") Advances in respect of such Account and of any other moneys remitted, paid, or otherwise advanced by Purchaser FGI to Sellers or on behalf of Seller (including any amounts which FGI reasonably determines that FGI may be obligated to pay in the future), and (iii) any charge, fee, and other amount that Seller is required to pay to FGI pursuant to this Agreement, shall be payable by FGI to Seller on the Date of Collection of such Account.
(c) FGI shall be entitled, in its sole and absolute discretion, to withhold the Required Reserve Amount, and may increase or decrease the Required Reserve Amount or Reserve Percentage at any time and from time to time if FGI deems it necessary to do so in order to protect FGI’s interests. In no event shall Seller permit a Reserve Shortfall to occur, and shall pay to FGI the amount thereof on demand. FGI may charge against the Reserve Account any amount for Sellers' benefit (which Seller may be obligated to FGI at any time, whether under the terms of this Agreement, or otherwise, including but not limited to the purchase price of Eligible Accounts purchased by Purchaser hereunder and the outstanding principal balance repayment of any Inventory AdvancesAdvance, the amount of any Purchased Account aged ninety (90) days or more past invoice date, any damages suffered by FGI as a result of Seller’s breach of any representation or warranty herein or of any other provision hereof (whether intentional or unintentional), net of all payments received from Sellers' any adjustments due and any attorneys’ fees, costs and disbursements due. Seller recognizes that the Reserve Account Debtors or otherwise received by Purchaser on the Sellers' behalf which are credited may, in FGI’s sole discretion, represent bookkeeping entries only and not cash funds. It is further agreed that, with respect to the Sellers' accountbalance in the Reserve Account, FGI is authorized to withhold, without giving prior notice to Seller, any payments and credits otherwise due to Seller under the terms of this Agreement to protect FGI for reasonably anticipated claims or to adequately satisfy reasonably anticipated obligations Seller may owe FGI. Interest Upon the occurrence of an Event of Default, or in the event Seller shall cease selling Accounts to FGI, FGI shall be charged on under no obligation to pay the Advances at a rate (amount maintained in the "Interest Rate")Reserve Account until all Purchased Accounts have been collected or FGI has determined, equal in its sole and absolute discretion, that it will make no further efforts to collect any Purchased Accounts and all sums due FGI hereunder have been paid. Notwithstanding anything set forth herein to the greater contrary, upon an Event of (i) nine Default, Seller understands and one-half percent (9.5%) per annum and (ii) agrees that the Prime Rate in effect from time to time plus two percent (2%) per annum but in no event to exceed the maximum rate permitted by applicable law. If the Prime Rate changes after the date hereof, the Interest Rate shall be automatically increased or decreased, as the case may be, if required hereunder, without notice to Sellers from time to time as of the effective time of each change in the Prime Rate. Interest Termination Fee described Section 13 hereof shall be due and payable on by Seller in the last day event that FGI terminates this Agreement following an Event of each calendar month and may, in Purchaser's sole discretion, be charged against the Reserve Accounts or other sums that may be due to Sellers hereunder. As used herein, the term "Prime Rate" means the rate as published from time to tune by The Wall Street Journal as the base rate for corporate loans at large commercial banks (if more than one such rate is published, the Prime Rate will be the higher or highest of the rates published). If such rate is no longer published by The Wall Street Journal, then Purchaser shall, in its sole discretion select the base or prime rate for corporate loans at a large commercial bank as the "Prime RateDefault." All interest accruing hereunder shall be calculated on the basis of actual days elapsed (including the first day but excluding the last) plus five (5) business days and a year of 360 days.
Appears in 1 contract
Samples: Sale of Accounts and Security Agreement (Clean Diesel Technologies Inc)
Purchase Price and Fees. (a) Purchaser shall purchase an Eligible Account at a purchase price equal to the face amount of such Eligible Account less the Reserve Percentage (as defined in paragraph 4 below) of such face amount which shall be credited to the applicable Reserve Account. The purchase price for any Eligible Accounts shall be advanced by Purchaser to the applicable Seller on the date of purchase as directed by such Seller. Sellers Purchase Price that FGI shall pay to Purchaser a discount (the "Discount") Seller for each Eligible Purchased Account purchased hereunder shall equal the Net Invoice Amount thereof less FGI’s fees, as specified below. No discount, credit, allowance or deduction with respect to one-half of one percent (0.5%) of any Purchased Account, unless shown on the face amount of the Eligible Account in question; provided that the Discount for any Eligible Account bearing terms in excess of the standard net 30-day terms an invoice, shall be increased granted or approved by 1.00% for each additional 30 days or fraction thereof. The Discount for an Eligible Seller to any Account shall be due and payable on the earlier of the ninetieth (90th) day after the related invoice date and the date on which Purchaser collects such Eligible Account. Sellers hereby authorize Purchaser to deduct any Discount payable hereunder from the purchase price of Eligible Accounts or any Inventory Advance hereunder or to charge such Discount against the Reserve Accounts or collections on the related Eligible Account, as Purchaser elects at its sole discretionDebtor without FGI’s prior written consent.
(b) Sellers shall pay The Purchase Price (as computed above), less (i) any Required Reserve Amount or credit balance that FGI, in FGI’s sole and absolute discretion, determines to Purchaser interest on the daily balance of all sums hold, (the "Advances"ii) moneys remitted, paid, or otherwise advanced by Purchaser FGI to Sellers or on behalf of Seller (including any amounts which FGI reasonably determines that Seller may be obligated to pay in the future), and (iii) any other charges provided for Sellers' benefit by this Agreement, shall be payable by FGI to Seller on the Date of Collection.
(c) FGI shall be entitled, in its sole and absolute discretion, to withhold the Required Reserve Amount, and may increase or decrease the Required Reserve Amount or Reserve Percentage at any time and from time to time if FGI deems it necessary to do so in order to protect FGI’s interests. In no event shall Seller permit a Reserve Shortfall to occur. FGI may charge against the Reserve Account any amount for which Seller may be obligated to FGI at any time, whether under the terms of this Agreement, or otherwise, including but not limited to the purchase price of Eligible Accounts purchased by Purchaser hereunder and the outstanding principal balance repayment of any Inventory Advancesover advance, any damages suffered by FGI as a result of Seller’s breach of any provision of Section 4 hereof (whether intentional or unintentional), net of all payments received from Sellers' any adjustments due and any attorneys’ fees, costs and disbursements due. Seller recognizes that the Reserve Account Debtors or otherwise received by Purchaser on the Sellers' behalf which are credited may, in FGI’s sole discretion, represent bookkeeping entries only and not cash funds. It is further agreed that with respect to the Sellers' accountbalance in the Reserve Account, FGI is authorized to withhold, without giving prior notice to Seller, such payments and credits otherwise due to Seller under the terms of this Agreement for reasonably anticipated claims or to adequately satisfy reasonably anticipated obligation(s) Seller may owe FGI. Interest Upon the occurrence of an Event of Default, or, in the event Seller shall cease selling Accounts to FGI, FGI shall be charged under no obligation to pay the amount maintained in the Reserve Account until all Accounts listed on all Schedules of Accounts have been collected or FGI has determined, in its sole and absolute discretion, that it will make no further efforts to collect any Accounts and all sums due FGI hereunder have been paid.
(d) In FGI’s sole and absolute discretion, in accordance with the Advances at a rate (the "Interest Rate")terms of this Agreement, equal to the greater of (i) nine and one-half percent (9.5%) per annum and (ii) the Prime Rate in effect FGI may from time to time plus two percent advance to Seller against the Purchase Price of Purchased Accounts purchased by FGI hereunder, sums up to 85% of the aggregate Purchase Price of Purchased Accounts outstanding at the time any such advance is made, less: (2%i) per annum but any such Purchased Accounts that are in no event dispute; (ii) any such Purchased Accounts that are not Credit Approved; (iii); any such Purchased Accounts aged ninety (90) days or more past invoice date [excluding Purchased Accounts beyond ninety (90) days for which FGI and Seller have made a separate agreement]; and (iv) any fees, actual or estimated, that are chargeable to exceed the maximum Reserve Account. Any advance shall be payable on demand and shall bear interest at the rate permitted by applicable law. If the Prime Rate changes after set forth in subsection (f) below from the date hereofsuch advance is made until the date FGI would otherwise be obligated hereunder to pay the purchase price of the Purchased Account(s) against which such advance was made.
(e) In FGI’s sole and absolute discretion, in accordance with the Interest terms of this Agreement, FGI may from time to time advance to Seller against Eligible Inventory, submitted to FGI on an Inventory BoiTowing Base Certificate, sums up to 50% of the Eligible Inventory (the “Inventory Advance Rate”), which Inventory Advance Rate shall be automatically increased reduced by 1% on the first day of each calendar month during the Term of this Agreement until the Inventory Advance Rate reaches 33% (e.g., reducing to 49% on March 25, 2011), such sums not to exceed 75% of the net orderly liquidation value, outstanding at the time any such advance is made, less: (i) any inventory-in-transit without appropriate shipping documents; (ii) bulk gloves; (iii) propriety Seller gloves; (iv) a 5% reserve on raw materials; (v) a 10% reserve on finished goods and (vi) any fees, actual or decreasedestimated, that are chargeable to the Reserve Account. Any resulting overadvance shall be immediately repaid to FGI. The Inventory Borrowing Base Certificate shall be in the form attached hereto as Schedule 3(e) or in such other form as required by FGI, and shall be signed by a duly authorized representative of Seller. At the time the Inventory Borrowing Base Certificate is presented, Seller shall also deliver to FGI its inventory report. Any advance made pursuant to this subsection shall be payable on demand and shall bear interest at the Inventory Advance Rate from the date such advance is made until the date such advance is paid in full.
(f) Interest upon the daily total outstanding balance of any Purchased Account shall be charged to Seller’s Reserve Account at a rate greater of 6.50% per annum or 2.50% above the rate of interest designated by FGI as its selected “Prime Rate” or “Base Rate’, as the case may be, if required hereunder, without notice to Sellers from time to time be (which as of the effective time of each change in date hereof is based upon the Prime Rate. Interest shall be due and payable on the last day of each calendar month and may, in Purchaser's sole discretion, be charged against the Reserve Accounts or other sums that may be due to Sellers hereunder. As used herein, the term "Prime Rate" means the rate as published from time to tune by The Wall Street Journal as the base rate for corporate loans at large commercial banks (if more than one such rate is published, the Prime Rate will be the higher or highest of the rates published). If such rate is no longer published by The Wall Street Journal, Money Rates Section which is subject to change) on the net daily balance of atl outstanding Purchased Accounts. In the event that the Wall Street Journal ceases to publish a Prime Rate, then Purchaser shallthe Prime Rate shall be the average of the three largest U.S. money center commercial banks, as determined by FGI. Alt such interest shall be computed for the actual number of days elapsed on the basis of a year consisting of three hundred sixty (360) days. Any adjustment in FGI’s interest rate, whether downward or upward will become effective on the day in which the prime rate of interest is decreased or increased.
(g) Seller shall unconditionally pay and FGI shall be entitled to receive a one time non-refundable facility fee in an amount equal $100,000 payable in immediately available funds upon signing of the Agreement.
(h) Seller shall unconditionally pay and FGI shall be entitled to receive a non-refundable monthly collateral management fee equal to 0.45% of the average monthly balance of Purchased Accounts; with such fee charged monthly to Seller’s Reserve Account or if funds are not available therein, payable by Seller on demand. Notwithstanding the foregoing and so long as no Event of Default has occurred, at any time after the first (six) 6 months, such percentage shall be reduced to 0.33% from and after the date Seller receives net cash proceeds of at least $3,000,000 in connection with a debt or equity issuance upon terms and documentation reasonably acceptable to FGI.
(i) Seller shall unconditionally pay and FGI shall be entitled to receive a non-refundable monthly inventory management service fee equal to 0.55% on the net daily balance of all outstanding advances in subsection (e) charged monthly to Seller’s Reserve Account or if funds are not available therein, payable by Seller on demand. Notwithstanding the foregoing and so long as no Event of Default has occurred, at any time after the first 6 months, such percentage shall be reduced to 0.39% from and after the date Company receives net cash proceeds of at least $3,000,000 in connection with a debt or equity issuance upon terms and documentation reasonably acceptable to FGI.
(j) The minimum monthly net funds employed during each contract year hereof shall be $3,350,000; any deficiency will be subject to a Deficiency Assessment.
(k) IT IS THE INTENTION OF THE PARTIES HERETO THAT AS TO ALL PURCHASED ACCOUNTS, THE TRANSACTIONS CONTEMPLATED HEREBY SHALL CONSTITUTE A TRUE PURCHASE AND SALE OF ACCOUNT(S) UNDER § 9-318 OF THE UCC AND AS SUCH, THE SELLER SHALL HAVE NO LEGAL OR EQUITABLE INTEREST IN THE ACCOUNTS SOLD. NEVERTHELESS, IN THE EVENT ALL OR ANY PORTION OF THIS TRANSACTION IS CHARACTERIZED AS A LOAN, THE PARTIES HERETO INTEND TO CONTRACT IN STRICT COMPLIANCE WITH APPLICABLE USURY LAW FROM TIME TO TIME IN EFFECT. IN FURTHERANCE THEREOF SUCH PARTIES STIPULATE AND AGREE THAT NONE OF THE TERMS AND PROVISIONS CONTAINED IN THIS AGREEMENT SHALL EVER BE CONSTRUED TO CREATE A CONTRACT TO PAY, FOR THE USE, FORBEARANCE OR DETENTION OF MONEY, INTEREST IN EXCESS OF THE MAXIMUM RATE (AS HEREINAFTER DEFINED) FROM TIME TO TIME IN EFFECT, NEITHER SELLER, ANY PRESENT OR FUTURE GUARANTOR OR ANY OTHER PERSON HEREAFTER BECOMING LIABLE FOR THE PAYMENT OF THE ADVANCES, SHALL EVER BE LIABLE FOR ANY OBLIGATION THAT MAY BE CHARACTERIZED AS UNEARNED INTEREST THEREON OR SHALL EVER BE REQUIRED TO PAY ANY OBLIGATION THAT MAY BE CHARACTERIZED AS INTEREST THEREON IN EXCESS OF THE MAXIMUM AMOUNT THAT MAY BE LAWFULLY CHARGED UNDER APPLICABLE LAW FROM TIME TO TIME IN EFFECT, AND THE PROVISIONS OF THIS SECTION SHALL CONTROL OVER ALL OTHER PROVISIONS OF THIS AGREEMENT WHICH MAY BE IN CONFLICT THEREWITH. IF ANY INDEBTEDNESS OR OBLIGATION OWED BY SELLER HEREUNDER IS DETERMINED TO BE IN EXCESS OF THE LEGAL MAXIMUM, OR FGI SHALL OTHERWISE COLLECT MONEYS WHICH ARE DETERMINED TO CONSTITUTE INTEREST WHICH WOULD OTHERWISE INCREASE THE INTEREST ON ALL OR ANY PART OF SUCH OBLIGATIONS TO AN AMOUNT IN EXCESS OF THAT PERMITTED TO BE CHARGED BY APPLICABLE LAW THEN IN EFFECT, THEN ALL SUCH SUMS DETERMINED TO CONSTITUTE INTEREST IN EXCESS OF SUCH LEGAL LIMIT SHALL, WITHOUT PENALTY, BE PROMPTLY APPLIED TO REDUCE THE THEN OUTSTANDING OBLIGATIONS OR, AT FGI’S OPTION, RETURNED TO SELLER OR THE OTHER PAYOR THEREOF UPON SUCH DETERMINATION. IF AT ANY TIME THE RATE AT WHICH INTEREST IS PAYABLE HEREUNDER EXCEEDS THE MAXIMUM RATE, THE AMOUNT OUTSTANDING HEREUNDER SHALL CEASE BEARING INTEREST UNTIL SUCH TIME AS THE TOTAL AMOUNT OF INTEREST ACCRUED HEREUNDER EQUALS (BUT DOES NOT EXCEED) THE MAXIMUM RATE APPLICABLE HERETO. AS USED IN THIS SECTION, THE TERM “APPLICABLE LAW” MEANS THE LAWS OF THE STATE OF NEW YORK OR, IF DIFFERENT, THE LAWS OF THE STATE OR TERRITORY IN WHICH THE SELLER RESIDES, WHICHEVER LAW ALLOWS THE GREATER RATE OF INTEREST, AS SUCH LAWS NOW EXIST OR MAY BE CHANGED OR AMENDED OR COME INTO EFFECT IN THE FUTURE AND THE TERM “MAXIMUM RATE” MEANS THE MAXIMUM NONUSURIOUS RATE OF INTEREST THAT FGI IS PERMITTED UNDER APPLICABLE LAW TO CONTRACT FOR, TAKE, CHARGE OR RECEIVE WITH RESPECT TO THE ADVANCES.
(1) Upon FGI’s acceptance of each Purchased Account, FGI shall be the sole owner and holder of such Purchased Account, Seller hereby sells, transfers, conveys and assigns to FGI all of its right, title and interest in and to each Purchased Account effective at the time of acceptance thereof by FGI. Seller agrees to execute and deliver to each Account Debtor obligated under an Account and/or a Purchased Account such written notice of sale of the Purchased Account as FGI may request in the form attached hereto as Schedule 3(1) or in such form as required by FGI.
(m) FGI shall provide Seller online access via a secured website to information on the Purchased Accounts and a reconciliation of the relationship relating to billing, collection and account maintenance such as aging, posting, error resolution and mailing of statements in the ordinary course of FGFs business. All of the foregoing shall be in a format and in such detail, as FGI, in its sole discretion select the base or prime rate for corporate loans at a large commercial bank as the "Prime Rate." All interest accruing hereunder and absolute discretion, deems appropriate. Furthermore, FGI’s books and records shall be calculated admissible in evidence without objection as prima facie evidence of the status of the Purchased and non-purchased Accounts and Reserve Account between FGI and Seller. Each statement, report, or accounting rendered or issued by FGI to Seller, if any, and all online information shall be deemed conclusively accurate and binding on Seller unless within twenty-one (21) days after the basis date of actual days elapsed (including issuance or posting Seller notifies FGI to the first day but excluding contrary by registered or certified mail, setting forth with specificity the lastreasons why Seller believes such statement, report, or accounting is inaccurate, as well as what Seller believes to be correct amount(s) plus five (5) business days therefore. FGI’s failure to provide or Seller’s failure to receive such online access shall not relieve Seller of Seller’s obligations under this Agreement or the responsibility of Seller to request such statement and a year of 360 daysSeller’s failure to do so shall nonetheless bind Seller to whatever FGI’s records would have reported.
Appears in 1 contract
Samples: Sale of Accounts and Security Agreement (Ads in Motion, Inc.)
