Purchase & Sale of Accounts. Seller hereby offers to sell, assign, transfer, convey and deliver to Factor, as absolute owner, in accordance with the procedure detailed herein, all of Seller's right, title and interest in and to Seller's Accounts. (a) All Accounts shall be submitted to Factor on a Schedule of Accounts listing each Account separately. The Schedule of Accounts shall be in the form attached hereto as Schedule "1(a)," and shall be signed by a person acting or purporting to act on behalf of Seller. At the time the Schedule of Accounts is presented, Seller shall also deliver to Factor one copy of an invoice for each Account together with evidence of shipment, furnishing and/or delivery of the Goods or rendition of service(s). Seller shall have the option, unless such right is terminated by Factor, to submit Schedule of Accounts and related invoices by either facsimile transmission or electronically via internet transmissions. In the event factor permits Seller to utilize either practice, all risk of loss due to any errors, including transmission errors or otherwise, shall be born by Seller and Factor shall be held harmless for any errors or mistakes made in accepting or relying on such methods of transmission. Regardless of the Seller's election to use such optional transmission methods, Seller shall remain obligated to have delivered to Factor authentic original hard copies of all such Schedules of Accounts and related invoices within 3 days of either a facsimile or electronic transmission. (b) Any and all Purchased Accounts shall be purchased on either a Credit Approved or with Full Recourse basis. In the absence of written Credit Approval, each Purchased Account shall be purchased at Full Recourse. No verbal Credit Approvals may be relied upon. Credit Approval(s) may be withdrawn, either orally or in writing, in Factor's discretion at any time if, in Factor's opinion, a Customer's credit standing becomes impaired before actual delivery of goods or rendering of services. Credit Approval(s) shall be limited to the specific terms and amounts indicated, and, notwithstanding any information subsequently provided to Seller by Factor, such Credit Approval(s) are automatically rescinded and withdrawn if the terms of sale vary from the terms approved by Factor, or if the terms of sale are changed by Seller without Factor's written Credit Approval on the new terms, or if the Purchased Account is not assigned to Factor within thirty (30) days from the date of issuance or are past due, (whichever shall so first occur}. (c) With regard to sales without Credit Approval or in excess of any Credit Approvals to any given Customer, Seller agrees that any payments or credits applying to any Account owing by such Customer will be applied; first, to any Credit-Approved Purchased Accounts outstanding on Factor's books; second, to any Full Recourse Purchased Accounts outstanding on Factor's books; and, third, to any Accounts outstanding on Seller's books. This order of payment applies regardless of the respective dates the sales occurred and regardless of any notations on payment items. (d) If Factor fails to collect a Purchased Account within 90 days of its due date, or 120 days from its creation (whichever shall sooner occur) for which Credit Approval has been given, and Factor fails to collect such Purchased Account solely to the customer's financial inability to pay, Seller shall not be liable to Factor for the Advance Amount of such Purchased Account. If Factor fails to collect a Purchased Account(s) within 90 days of its due date, or 120 days from its creation (whichever shall sooner occur) for any reason other than the customer's stated Financial Inability to Pay, Seller shall promptly repurchase such Purchased Account(s) from Factor for an amount equal to its applicable Purchase Price plus all fees due Factor up to and including the date of repurchase. Any Purchased Account for freight, samples, or miscellaneous sales (including, without limitation, the sale of goods and/or in quantities not regularly sold by Seller) is always assigned to Factor at Full Recourse, notwithstanding any written Credit Approval from Factor. At its option, Seller may repurchase any Purchased Account(s) from Factor by paying to Factor an amount equal to the Purchased Account's Purchase Price plus all applicable fees due Factor up to and including the date of repurchase. (e) Factor shall have no liability of any kind for declining or refusing to give, or for withdrawing, revoking, or modifying, any Credit Approval pursuant to the terms of this Agreement, or for exercising or failing to exercise any rights or remedies Factor may have under this Agreement or otherwise. In the event Factor declines to give Credit Approval on any order received by Seller from a Customer and in advising Seller of such decline Factor furnishes Seller with information as to the credit standing of the Customer, such information shall be deemed to have been requested of Factor by Seller and Factor's advice containing such information is recognized as a privileged communication. Seller agrees that such information shall not be given to Seller's Customer or to Seller's sales representative(s). If necessary, Seller shall merely advise its Customer(s) that credit has been declined on the account and that any questions should be directed to Factor. Each Full Recourse Account(s) assigned to and purchased by Factor is with full recourse to Seller and at Seller's sole credit risk. Factor shall have the right to charge back to Seller's Reserve the amount of such Full Recourse Receivables at any time and from time to time either before or after their maturity. Seller agrees to pay Factor upon demand the full amount thereof, together with all expenses incurred by Factor up to the date of such payment, including reasonable attorney's fees in attempting to collect or enforce such payment or payment of such Account(s)s, Factor's Credit Approval shall only begin after the first $5,000 of all Purchased Accounts relating to each Account Debtor. For purposes of determining Factor's Credit Approval hereunder, the Purchased Accounts) balance due Factor from any given customer shall be calculated as the aggregate amount owed by that Customer less any credits to which such Customer may be entitled, and is not to be construed to mean individual invoices owed by that customer.
Appears in 1 contract
Samples: Sale of Accounts Factoring and Security Agreement (Alternative Construction Company, Inc.)
Purchase & Sale of Accounts. (a) Seller hereby offers to sell, assign, transfer, convey and deliver to FactorFGI, as absolute owner, in accordance with the procedure detailed herein, all of Seller's ’s right, title and interest in and to Seller's ’s Accounts; provided at no time shall the maximum aggregate amount paid by FGI for Accounts purchased from Seller outstanding on FGI’s books exceed the Facility Amount.
(ab) All Accounts shall be submitted to Factor FGI on a Schedule of Accounts listing each Account separately. The Schedule of Accounts shall be in the form attached hereto as Schedule "1(a)," 2(b) or in such other form as required by FGI, and shall be signed by a person acting or purporting to act on behalf of Seller. At the time the Schedule of Accounts is presented, Seller shall also deliver to Factor FGI one copy of an a sales contract, purchase order, and invoice for each Account together with evidence of shipment, furnishing and/or delivery of the Goods or rendition of service(s). Seller shall have the option, unless such right is terminated by Factor, to submit Schedule of Accounts and related invoices by either facsimile transmission or electronically via internet transmissions. In the event factor permits Seller to utilize either practice, all risk of loss due to any errors, including transmission errors or otherwise, shall be born by Seller and Factor shall be held harmless for any errors or mistakes made in accepting or relying on such methods of transmission. Regardless of the Seller's election to use such optional transmission methods, Seller shall remain obligated to have delivered to Factor authentic original hard copies of all such Schedules of Accounts and related invoices within 3 days of either a facsimile or electronic transmission.
(bc) Any and all Purchased Accounts shall be purchased on either a Credit Approved or with Full Recourse basis, as determined by FGI in its sole and absolute discretion. In the absence of written Credit Approval, each the Purchased Account Accounts shall be purchased at Full Recourse. No If Goods are shipped or services are provided based on a verbal Credit Approvals may be relied uponapproval, it is Seller’s responsibility to ensure that such approval is received in writing in a timely manner. Credit Approval(s) may be withdrawn, either orally or in writing, in Factor's FGI’s sole and absolute discretion at any time if, in Factor's FGl’s opinion, a Customer's an Account Debtor’s credit standing or ability to perform with respect to the applicable Account becomes impaired before actual delivery of goods Goods or rendering of services. Credit Approval(s) shall be limited to the specific terms and amounts indicated, and, notwithstanding any information subsequently provided to Seller by FactorFGI, such Credit Approval(s) are automatically rescinded and withdrawn if the terms of sale vary from the terms approved by FactorFGI, or if the terms of sale are changed by Seller without Factor's FGI’s written Credit Approval on the new terms, or if the Purchased Account is not assigned to Factor FGI within thirty ten (3010) days from the date of issuance the invoice, or if the amount of outstanding Accounts of an Account Debtor exceed the maximum Credit Approval amount for the Account Debtor as determined by FGI from time to time. Seller further acknowledges that if Seller ships Goods or provides services to an Account Debtor who has outstanding Accounts from Seller, and such Account Debtor’s credit line and/or outstanding Credit Approval(s) have been withdrawn by FGI, and the Accounts created thereby, whether or not they are past duesold and assigned to FGI, (whichever shall so first occur}.exceed 10% of the amount Accounts purchased from Seller outstanding on FGI’s books, that any Credit Approvals applying to those Purchased Accounts outstanding on FGI’s books are automatically deemed cancelled and all outstanding Purchased Accounts from that Account Debtor are with Full Recourse,
(cd) With regard to sales without Credit Approval or in excess of any deemed without Credit Approvals to any given CustomerApproval, Seller agrees that any payments or credits applying to any Account owing by such Customer Account Debtor will be applied; : first, to any Credit-Approved Purchased Accounts outstanding on Factor's FGI’s books, if any; second, to any Full Recourse Purchased Accounts outstanding on Factor's FGI’s books; and, third, to any Accounts outstanding on Seller's ’s books. This order of payment applies regardless of the respective dates the sales occurred and regardless of any notations on payment items.
(de) If Factor FGI fails to collect a Purchased Account within 90 ninety (90) days of its due date, or 120 days from its creation (whichever shall sooner occur) maturity for which Credit Approval has been given, and Factor fails FGI shall pay to collect such Purchased Account solely to Seller the customer's financial inability to pay, Seller shall not be liable to Factor for the Advance Net Invoice Amount of such Purchased AccountAccount within a reasonable time period, subject to the terms and provisions stated herein. If Factor fails to collect a Purchased Account(s) within 90 days At the sole discretion of its due date, or 120 days from its creation (whichever shall sooner occur) for any reason other than the customer's stated Financial Inability to PayFGI, Seller shall promptly may have the option to repurchase any such Purchased Account(s) from Factor Account for an amount equal to its applicable Purchase Price plus all fees due Factor up to and including the date of repurchasewhich Credit Approval has been granted. Any Purchased Account for progress payments, work-in-process, freight, samples, samples or miscellaneous sales (including, without limitation, the sale of goods Goods and/or in quantities not regularly sold by Seller) is always assigned to Factor FGI at Full Recourse, notwithstanding any written Credit Approval from Factor. At its option, Seller may repurchase any Purchased Account(s) from Factor by paying to Factor an amount equal to the Purchased Account's Purchase Price plus all applicable fees due Factor up to and including the date of repurchaseFGI.
(ef) Factor FGI shall have no liability of any kind for declining or refusing to give, or for withdrawing, revoking, or modifying, any Credit Approval pursuant to the terms of this Agreement, or for exercising or failing to exercise any rights or remedies Factor FGI may have under this Agreement or otherwise. In the event Factor FGI declines to give Credit Approval on any order received by Seller from a Customer an Account Debtor and in advising Seller of such decline Factor FGI furnishes Seller with information as to the credit standing of the CustomerAccount Debtor, such information shall be deemed to have been requested of Factor FGI by Seller and Factor's FGI’s advice containing such information is recognized as a privileged communication. Seller agrees that such information shall not be given to Seller's Customer ’s customers or to Seller's ’s sales representative(s). If necessary, Seller shall merely advise its Customer(scustomer(s) that credit has been declined on the account Account and that any questions should be directed to FactorFGI. Each Full Recourse Account(s) assigned to and purchased by Factor FGI is with full recourse to Seller and at Seller's ’s sole credit risk. Factor FGI shall have the right to charge back to Seller's ’s Reserve Account the amount of such Full Recourse Receivables Accounts at any time and from time to time either before or after their maturity. Seller agrees to pay Factor FGI upon demand the full amount thereof, together with all expenses incurred by Factor FGI up to the date of such payment, including reasonable attorney's ’s fees in attempting to collect or enforce such payment or payment of such Account(s)s, Factor's Account(s). FGI’s Credit Approval shall only begin after the first $5,000 15% of all Purchased Accounts relating to each Account Debtor. For purposes of determining Factor's FGI’s Credit Approval hereunder, the Purchased AccountsAccount(s) balance due Factor FGI from any given customer Account Debtor shall be calculated as the aggregate amount owed by that Customer Account Debtor less any credits to which such Customer Account Debtor may be entitled, and is not to be construed to mean individual invoices owed by that customerAccount Debtor.
Appears in 1 contract
Samples: Sale of Accounts and Security Agreement (Ads in Motion, Inc.)
Purchase & Sale of Accounts. (a) Seller hereby offers to sell, assign, transfer, convey and deliver to FactorFGI, as absolute owner, in accordance with the procedure detailed herein, all of Seller's ’s right, title and interest in and to Seller's ’s Accounts; provided at no time shall the maximum aggregate amount paid by FGI for Accounts purchased from Seller outstanding on FGI’s books exceed the Facility Amount.
(ab) All Accounts shall be submitted to Factor FGI on a Schedule of Accounts listing each Account separatelyseparately with the exception of the Accounts of debtors listed in Schedule 2(b). The Schedule of Accounts shall be in the form attached hereto as Schedule "1(a)," 1 or in such other form as required by FGI, and shall be signed by a person acting or purporting to act on behalf of Seller. At the time the Schedule of Accounts is presented, Seller shall also deliver to Factor FGI one copy of an a sales contract, purchase order, and invoice for each Account together with evidence of shipment, furnishing and/or delivery of the Goods or rendition of service(s). Seller shall have the option, unless such right is terminated by Factor, to submit Schedule of Accounts and related invoices by either facsimile transmission or electronically via internet transmissions. In the event factor permits Seller to utilize either practice, all risk of loss due to any errors, including transmission errors or otherwise, shall be born by Seller and Factor shall be held harmless for any errors or mistakes made in accepting or relying on such methods of transmission. Regardless of the Seller's election to use such optional transmission methods, Seller shall remain obligated to have delivered to Factor authentic original hard copies of all such Schedules of Accounts and related invoices within 3 days of either a facsimile or electronic transmission.
(bc) Any and all Purchased Accounts shall be purchased on either a Credit Approved or with Full Recourse basis, as determined by FGI in its sole and absolute discretion. In the absence of written Credit Approval, each the Purchased Account Accounts shall be purchased at Full Recourse. No If Goods are shipped or services are provided based on a verbal Credit Approvals may be relied uponapproval, it is Seller’s responsibility to ensure that such approval is received in writing in a timely manner. Credit Approval(s) may be withdrawn, either orally or in writing, in Factor's FGI’s sole and absolute discretion at any time if, in Factor's FGI’s opinion, a Customer's an Account Debtor’s credit standing or ability to perform with respect to the applicable Account becomes impaired before actual delivery of goods Goods or rendering of services. Credit Approval(s) shall be limited to the specific terms and amounts indicated, and, notwithstanding any information subsequently provided to Seller by FactorFGI, such Credit Approval(s) are automatically rescinded and withdrawn if the terms of sale vary from the terms approved by FactorFGI, or if the terms of sale are changed by Seller without Factor's FGI’s written Credit Approval on the new terms, or if the Purchased Account is not assigned to Factor FGI within thirty ten (3010) days from the date of issuance the invoice, or if the amount of outstanding Accounts of an Account Debtor exceed the maximum Credit Approval amount for the Account Debtor as determined by FGI from time to time. Seller further acknowledges that if Seller ships Goods or provides services to an Account Debtor who has outstanding Accounts from Seller, and such Account Debtor’s credit line and/or outstanding Credit Approval(s) have been withdrawn by FGI, and the Accounts created thereby, whether or not they are past duesold and assigned to FGI, (whichever shall so first occur}exceed 10% of the amount Accounts purchased from Seller outstanding on FGI’s books, that any Credit Approvals applying to those Purchased Accounts outstanding on FGI’s books are automatically deemed cancelled and all outstanding Purchased Accounts from that Account Debtor are with Full Recourse.
(cd) With regard to sales without Credit Approval or in excess of any deemed without Credit Approvals to any given CustomerApproval, Seller agrees that any payments or credits applying to any Account owing by such Customer Account Debtor will be applied; : first, to any Credit-Approved Purchased Accounts outstanding on Factor's FGI’s books, if any; second, to any Full Recourse Purchased Accounts outstanding on Factor's FGI’s books; and, third, to any Accounts outstanding on Seller's ’s books. This order of payment applies regardless of the respective dates the sales occurred and regardless of any notations on payment items.
(de) If Factor FGI fails to collect a Purchased Account within 90 ninety (90) days of its due date, or 120 days from its creation (whichever shall sooner occur) maturity for which Credit Approval has been given, and Factor fails FGI shall pay to collect such Purchased Account solely to Seller the customer's financial inability to pay, Seller shall not be liable to Factor for the Advance Net Invoice Amount of such Purchased AccountAccount within a reasonable time period, subject to the terms and provisions stated herein. If Factor fails to collect a Purchased Account(s) within 90 days At the sole discretion of its due date, or 120 days from its creation (whichever shall sooner occur) for any reason other than the customer's stated Financial Inability to PayFGI, Seller shall promptly may have the option to repurchase any such Purchased Account(s) from Factor Account for an amount equal to its applicable Purchase Price plus all fees due Factor up to and including the date of repurchasewhich Credit Approval has been granted. Any Purchased Account for progress payments, work-in-process, freight, samples, samples or miscellaneous sales (including, without limitation, the sale of goods Goods and/or in quantities not regularly sold by Seller) is always assigned to Factor FGI at Full Recourse, notwithstanding any written Credit Approval from Factor. At its option, Seller may repurchase any Purchased Account(s) from Factor by paying to Factor an amount equal to the Purchased Account's Purchase Price plus all applicable fees due Factor up to and including the date of repurchaseFGI.
(ef) Factor FGI shall have no liability of any kind for declining or refusing to give, or for withdrawing, revoking, or modifying, any Credit Approval pursuant to the terms of this Agreement, or for exercising or failing to exercise any rights or remedies Factor FGI may have under this Agreement or otherwise. In the event Factor FGI declines to give Credit Approval on any order received by Seller from a Customer an Account Debtor and in advising Seller of such decline Factor FGI furnishes Seller with information as to the credit standing of the CustomerAccount Debtor, such information shall be deemed to have been requested of Factor FGI by Seller and Factor's FGI’s advice containing such information is recognized as a privileged communication. Seller agrees that such information shall not be given to Seller's Customer ’s customers or to Seller's ’s sales representative(s). If necessary, Seller shall merely advise its Customer(scustomer(s) that credit has been declined on the account Account and that any questions should be directed to FactorFGI. Each Full Recourse Account(s) assigned to and purchased by Factor FGI is with full recourse to Seller and at Seller's ’s sole credit risk. Factor FGI shall have the right to charge back to Seller's ’s Reserve Account the amount of such Full Recourse Receivables Accounts at any time and from time to time either before or after their maturity. Seller agrees to pay Factor FGI upon demand the full amount thereof, together with all expenses incurred by Factor FGI up to the date of such payment, including reasonable attorney's ’s fees in attempting to collect or enforce such payment or payment of such Account(s)s, Factor's Account(s). FGI’s Credit Approval shall only begin after the first $5,000 15% of all Purchased Accounts relating to each Account Debtor. For purposes of determining Factor's FGI’s Credit Approval hereunder, the Purchased AccountsAccount(s) balance due Factor FGI from any given customer Account Debtor shall be calculated as the aggregate amount owed by that Customer Account Debtor less any credits to which such Customer Account Debtor may be entitled, and is not to be construed to mean individual invoices owed by that customerAccount Debtor.
Appears in 1 contract
Samples: Sale of Accounts and Security Agreement (Overland Storage Inc)
Purchase & Sale of Accounts. Seller hereby offers to sell, assign, transfer, convey and deliver to Factor, as absolute owner, in accordance with the procedure detailed herein, all of Seller's right, title and interest in and to Seller's Accounts.
(a) All . If required, all Accounts shall be submitted to Factor on a Schedule of Accounts listing each Account separately. The Schedule of Accounts shall be in the form attached hereto as Schedule "1(a)," and shall be signed by a person acting or purporting to act on behalf of Seller. At the time the Schedule of Accounts is presented, if required, Seller shall also deliver to Factor one copy of an invoice for each Account together with evidence of shipment, furnishing and/or delivery of the Goods or rendition of service(s). Seller All invoices shall have plainly state on their face the option, unless such right is terminated by Factor, to submit Schedule of Accounts and related invoices by either facsimile transmission or electronically via internet transmissions. In the event factor permits Seller to utilize either practice, all risk of loss due to any errors, including transmission errors or otherwise, shall be born by Seller and Factor shall be held harmless for any errors or mistakes made in accepting or relying on such methods of transmission. Regardless of the Seller's election to use such optional transmission methods, Seller shall remain obligated to have delivered amounts payable hereunder are payable to Factor authentic original hard copies of all such Schedules of Accounts and related invoices within 3 days of either a facsimile or electronic transmission.
(b) at the remittance address set forth below. Any and all Purchased Accounts shall be purchased on either a Credit Approved or with Full Recourse basis. In the absence of written Credit Approval, each the Purchased Account Accounts shall be purchased at Full Recourse. No If Goods are shipped or services are provided based on a verbal Credit Approvals may be relied uponapproval, it is Seller's responsibility to ensure that such approval is received in writing in a timely manner. Credit Approval(s) may be withdrawn, either orally or in writing, in Factor's discretion at any time if, in Factor's opinion, a Customer's credit standing becomes impaired before actual delivery shipment of goods Goods or rendering of services. Seller to use reasonable efforts to stop any shipment. Credit Approval(s) shall be limited to the specific terms and amounts indicated, and, notwithstanding any information subsequently provided to Seller by Factor, such Credit Approval(s) are automatically rescinded and withdrawn if the terms of sale vary from the terms approved by Factor, or if the terms of sale are changed by Seller without Factor's written Credit Approval on the new terms, or if the Purchased Account is not assigned to Factor within thirty (30) ten days from the date of issuance or are past due, (whichever shall so first occur}.
(c) the invoice. With regard to sales without Credit Approval or in excess of any Credit Approvals to any given Customer, Seller agrees that any payments or credits applying to any Account owing by such Customer will be applied; : first, to any Credit-Approved Purchased Accounts outstanding on Factor's books; second, to any Full Recourse Purchased Accounts outstanding on Factor's books; and, third, to any Accounts outstanding on Seller's books. This order of payment applies regardless of the respective dates the sales occurred and regardless of any notations on payment items.
(d) . If Factor fails to collect a Purchased Account within 90 120 days of its due date, or 120 days from its creation (whichever shall sooner occur) maturity for which Credit Approval has been given, and Factor fails to collect such Purchased Account solely due to the customer's financial inability to pay, Factor shall pay to Seller shall not be liable to Factor for the Advance Net Invoice Amount of such Purchased Account. If Factor fails to collect a Purchased Account(s) within 90 days of its due date, or Account then owing on the Friday next following the week during which said 120 days from its creation (whichever shall sooner occur) for any reason other than the customer's stated Financial Inability to Pay, Seller shall promptly repurchase such Purchased Account(s) from Factor for an amount equal to its applicable Purchase Price plus all fees due Factor up to and including the date of repurchaseexpired. Any Purchased Account for freight, samples, or miscellaneous sales (including, without limitation, the sale of goods Goods and/or in quantities not regularly sold by Seller) is always assigned to Factor at Full Recourse, notwithstanding any written Credit Approval from Factor. At its option, Seller may repurchase any Purchased Account(s) from Factor by paying to Factor an amount equal to the Purchased Account's Purchase Price plus all applicable fees due Factor up to and including the date of repurchase.
(e) Factor shall have no liability of any kind for declining or refusing to give, or for withdrawing, revoking, or modifying, any Credit Approval pursuant to the terms of this Agreement, or for exercising or failing to exercise any rights or remedies Factor may have under this Agreement or otherwise. In the event Factor declines to give Credit Approval on any order received by Seller from a Customer and in advising Seller of such decline Factor furnishes Seller with information as to the credit standing of the Customer, such information shall be deemed to have been requested of Factor by Seller and Factor's advice containing such information is recognized as a privileged communication. Seller agrees that such information shall not be given to Seller's Customer or to Seller's sales representative(s). If necessary, Seller shall merely advise its Customer(s) that credit has been declined on the account and that any questions should be directed to Factor. Each Full Recourse Account(s) assigned to and purchased by Factor is with full recourse to Seller and at Seller's sole credit risk. Factor shall have the right to charge back to Seller's Reserve Account the amount of such Full Recourse Receivables at any time and from time to time either before or after their maturity. Seller agrees to pay Factor upon demand the full amount thereof, together with all expenses incurred by Factor up to the date of such payment, including reasonable attorney's fees in attempting to collect or enforce such payment or payment of such Account(s)s, . Factor's Credit Approval shall only begin after the first $5,000 $ N/A of all Purchased Accounts relating to each Account Debtor. For purposes of determining Factor's Credit Approval hereunder, the Purchased AccountsAccount(s) balance due Factor from any given customer shall be calculated as the aggregate amount owed by that Customer less any credits to which such Customer may be entitled, and is not to be construed to mean individual invoices owed by that customer.
Appears in 1 contract
Purchase & Sale of Accounts. (a) Seller hereby offers to sell, assign, transfer, convey and deliver to FactorFGI, as absolute owner, in accordance with the procedure detailed herein, all of Seller's ’s right, title and interest in and to Seller's Accounts’s Accounts and their Related Rights; provided that the parties acknowledge their intention that, without affecting the validity of any sale, assignment, transfer, conveyance or delivery of any Purchased Account, the aggregate outstanding amount of Purchased Accounts Advanced on FGI’s books will not at any time exceed the Facility Amount.
(ab) All Accounts shall be submitted to Factor FGI on a Schedule of Accounts listing each Account separately. The Schedule of Accounts shall be in shall, at the form attached hereto as Schedule "1(a)," and shall request of FGI, be signed by a person acting or purporting to act on behalf of Seller. At the time the a Schedule of Accounts is presented, Seller shall also deliver to Factor FGI one copy of an the sales contract, purchase order and invoice for each Account listed on the schedule together with evidence of shipment, furnishing and/or delivery of the applicable Goods or rendition of the applicable service(s). Seller shall have the option, unless such right is terminated by Factor, to submit Schedule of Accounts and related invoices by either facsimile transmission or electronically via internet transmissions. In the event factor permits Seller to utilize either practice, all risk of loss due to any errors, including transmission errors or otherwise, shall be born by Seller and Factor shall be held harmless for any errors or mistakes made in accepting or relying on such methods of transmission. Regardless of the Seller's election to use such optional transmission methods, Seller shall remain obligated to have delivered to Factor authentic original hard copies of all such Schedules of Accounts and related invoices within 3 days of either a facsimile or electronic transmission.
(bc) Any and all Purchased Accounts shall be purchased by FGI with full recourse to Seller, and Seller agrees to pay to FGI on either a Credit Approved or with Full Recourse basis. In demand the absence unpaid amount of written Credit Approval, each Purchased Account shall be purchased at Full Recoursespecified by FGI. No verbal Credit Approvals may be relied upon. Credit Approval(s) may be withdrawn, either orally or in writing, in Factor's discretion at any time if, in Factor's opinion, a Customer's credit standing becomes impaired before actual delivery of goods or rendering of services. Credit Approval(s) shall be limited to the specific terms and amounts indicated, and, notwithstanding any information subsequently provided to Seller by Factor, such Credit Approval(s) are automatically rescinded and withdrawn if the terms of sale vary from the terms approved by Factor, or if the terms of sale are changed by Seller without Factor's written Credit Approval on the new terms, or if the Purchased Account is not assigned to Factor within thirty (30) days from the date of issuance or are past due, (whichever shall so first occur}.
(c) With regard to sales without Credit Approval or in excess of any Credit Approvals to any given Customer, Seller agrees that any payments or credits applying to any Account owing by such Customer an Account Debtor will be applied; : first, to any Credit-Approved Purchased Accounts outstanding on Factor's booksAccount of such Account Debtor; and, second, to any Full Recourse Purchased other Accounts outstanding on Factor's books; and, third, to any Accounts outstanding on Seller's booksof such Account Debtor. This order of payment applies regardless of the respective dates the sales occurred and regardless of any notations on payment items.
(d) If Factor fails to collect a Purchased Account within 90 days of its due date, or 120 days from its creation (whichever shall sooner occur) for which Credit Approval has been given, and Factor fails to collect such Purchased Account solely to the customer's financial inability to pay, Seller shall not be liable to Factor for the Advance Amount of such Purchased Account. If Factor fails to collect a Purchased Account(s) within 90 days of its due date, or 120 days from its creation (whichever shall sooner occur) for any reason other than the customer's stated Financial Inability to Pay, Seller shall promptly repurchase such Purchased Account(s) from Factor for an amount equal to its applicable Purchase Price plus all fees due Factor up to and including the date of repurchase. Any Purchased Account for freight, samples, or miscellaneous sales (including, without limitation, the sale of goods and/or in quantities not regularly sold by Seller) is always assigned to Factor at Full Recourse, notwithstanding any written Credit Approval from Factor. At its option, Seller may repurchase any Purchased Account(s) from Factor by paying to Factor an amount equal to the Purchased Account's Purchase Price plus all applicable fees due Factor up to and including the date of repurchase.
(e) Factor shall have no liability of any kind for declining or refusing to give, or for withdrawing, revoking, or modifying, any Credit Approval pursuant to the terms of this Agreement, or for exercising or failing to exercise any rights or remedies Factor may have under this Agreement or otherwise. In the event Factor declines that FGI determines to give Credit Approval on any order received purchase an Account submitted by Seller from to it and such Account’s Related Rights, FGI shall post such Account on its receivables processing system and shall xxxx such Account as having been purchased and/or accepted. Such posting and marking shall constitute FGI’s acceptance of Seller’s offer to sell, assign, transfer, convey and deliver such Account and its Related Rights to FGI and shall effect a Customer and in advising Seller purchase of such decline Factor furnishes Account and its Related Rights by FGI and the sale, assignment, transfer, conveyance and delivery thereof to FGI whether or not Seller has complied with information as to the credit standing of the Customer, such information shall be deemed to have been requested of Factor by Seller and Factor's advice containing such information is recognized as a privileged communicationany notice or other requirements set forth in this Agreement in respect thereof. Seller agrees that such information shall not be given to Seller's Customer or to Seller's sales representative(s). If necessarymay, Seller shall merely advise its Customer(s) that credit has been declined on the account and that any questions should be directed to Factor. Each Full Recourse Account(s) assigned to and purchased by Factor is with full recourse to Seller and at Seller's sole credit risk. Factor shall have the right to charge back to Seller's Reserve the amount of such Full Recourse Receivables at any time and FGI’s request from time to time either before with respect to any Purchased Account specified by FGI will, deliver to FGI a specific assignment of an Account submitted by Seller to it (including a Purchased Account) in a form specified by FGI. The delivery by or after their maturity. of behalf of Seller agrees to pay Factor upon demand FGI of any assignment of an Account shall effect (or confirm) the full amount thereofsale, together with all expenses incurred by Factor up to the date assignment, transfer, conveyance and delivery of such paymentAccount and its Related Rights to FGI, including reasonable attorney's fees in attempting provided the delivery of any such assignment shall not be necessary to collect or enforce effect a sale, assignment, transfer, conveyance and delivery of any Account and its Related Rights if FGI shall post and xxxx such payment or payment of such Account(s)s, Factor's Credit Approval shall only begin after the first $5,000 of all Purchased Accounts relating to each Account Debtor. For purposes of determining Factor's Credit Approval hereunder, the Purchased Accounts) balance due Factor from any given customer shall be calculated on its factoring processing system as the aggregate amount owed contemplated by that Customer less any credits to which such Customer may be entitled, and is not to be construed to mean individual invoices owed by that customerthis Section 2(d).
Appears in 1 contract
Samples: Sale of Accounts and Security Agreement (Clean Diesel Technologies Inc)
Purchase & Sale of Accounts. (a) Seller hereby offers to sell, assign, transfer, convey and deliver to FactorFGI, as absolute owner, in accordance with the procedure detailed herein, all of Seller's ’s right, title and interest in and to Seller's ’s Accounts.
(ab) All Accounts shall be submitted to Factor FGI on a Schedule of Accounts listing each Account separately. The Schedule of Accounts shall be in the form attached hereto as Schedule "1(a)“2," ” or in such other form as required by FGI, and shall be signed by a person acting or purporting to act on behalf of Seller. At the time the Schedule of Accounts is presented, Seller shall also deliver to Factor FGI one copy of an a sales contract, purchase order, and invoice for each Account together with evidence of shipment, furnishing and/or delivery of the Goods or rendition of service(s). Seller All invoices shall have plainly state on their face the optionamounts payable hereunder are payable to FGI at the remittance address or by the wire instructions set forth below. Commerce Bank, unless such right is terminated by FactorN.A. 00 Xxxx Xxxxxx (Comm BK Marlton) 00xx Xxxxx Xxxxxx Xxxx, to submit Schedule of Accounts and related invoices by either facsimile transmission or electronically via internet transmissions. In the event factor permits Seller to utilize either practiceXX Xxx Xxxx, all risk of loss due to any errors, including transmission errors or otherwise, shall be born by Seller and Factor shall be held harmless for any errors or mistakes made in accepting or relying on such methods of transmission. Regardless of the Seller's election to use such optional transmission methods, Seller shall remain obligated to have delivered to Factor authentic original hard copies of all such Schedules of Accounts and related invoices within 3 days of either a facsimile or electronic transmission.XX 00000 SWIFT: CBNAUS33 ABA/Routing #: 000000000 Credit to: FGI Finance Account #: 7918598116
(bc) Any and all Purchased Accounts shall be purchased on either a Credit Approved or with Full Recourse basis. In the absence of written Credit Approval, each the Purchased Account Accounts shall be purchased at Full Recourse. No If Goods are shipped or services are provided based on a verbal Credit Approvals may be relied uponapproval, it is Seller’s responsibility to ensure that such approval is received in writing in a timely manner. Credit Approval(s) may be withdrawn, either orally or in writing, in Factor's FGI’s discretion at any time if, in Factor's FGI’s opinion, a Customer's ’s credit standing becomes impaired before actual delivery of goods Goods or rendering of services. Credit Approval(s) shall be limited to the specific terms and amounts indicated, and, notwithstanding any information subsequently provided to Seller by FactorFGI, such Credit Approval(s) are automatically rescinded and withdrawn if the terms of sale vary from the terms approved by FactorFGI, or if the terms of sale are changed by Seller without Factor's FGI’s written Credit Approval on the new terms, or if the Purchased Account is not assigned to Factor FGI within thirty ten (3010) days from the date of issuance the invoice. Seller further acknowledges that if Seller ships Goods or provides services to a customer who has outstanding Accounts from Seller, and such customer’s credit line and/or outstanding Credit Approval(s) have been withdrawn by FGI, and the Accounts created thereby, whether or not they are past duesold and assigned to FGI, exceed ten percent (whichever shall so first occur}10%) of the amount outstanding on FGI’s books, that any Credit Approvals applying to those Purchased Accounts outstanding on FGI’s books are cancelled and all outstanding Purchased Accounts from that customer are with Full Recourse.
(cd) With regard to sales without Credit Approval or in excess of any Credit Approvals to any given Customer, Seller agrees that any payments or credits applying to any Account owing by such Customer will be applied; : first, to any Credit-Approved Purchased Accounts outstanding on Factor's FGI’s books; second, to any Full Recourse Purchased Accounts outstanding on Factor's FGI’s books; and, third, to any Accounts outstanding on Seller's ’s books. This order of payment applies regardless of the respective dates the sales occurred and regardless of any notations on payment items.
(de) If Factor FGI fails to collect a Purchased Account within 90 ninety (90) days of its due date, or 120 days from its creation (whichever shall sooner occur) maturity for which Credit Approval has been given, and Factor fails FGI shall pay to collect such Purchased Account solely to Seller the customer's financial inability to pay, Seller shall not be liable to Factor for the Advance Net Invoice Amount of such Purchased Account. If Factor fails Account less fees, within a reasonable time period, subject to collect a Purchased Account(s) within 90 days of its due date, or 120 days from its creation (whichever shall sooner occur) for any reason other than the customer's terms and provisions stated Financial Inability to Pay, Seller shall promptly repurchase such Purchased Account(s) from Factor for an amount equal to its applicable Purchase Price plus all fees due Factor up to and including the date of repurchaseherein. Any Purchased Account for freight, samples, samples or miscellaneous sales (including, without limitation, the sale of goods Goods and/or in quantities not regularly sold by Seller) is always assigned to Factor FGI at Full Recourse, notwithstanding any written Credit Approval from Factor. At its option, Seller may repurchase any Purchased Account(s) from Factor by paying to Factor an amount equal to the Purchased Account's Purchase Price plus all applicable fees due Factor up to and including the date of repurchaseFGI.
(ef) Factor FGI shall have no liability of any kind for declining or refusing to give, or for withdrawing, revoking, or modifying, any Credit Approval pursuant to the terms of this Agreement, or for exercising or failing to exercise any rights or remedies Factor FGI may have under this Agreement or otherwise. In the event Factor FGI declines to give Credit Approval on any order received by Seller from a Customer and in advising Seller of such decline Factor FGI furnishes Seller with information as to the credit standing of the Customer, such information shall be deemed to have been requested of Factor FGI by Seller and Factor's FGI’s advice containing such information is recognized as a privileged communication. Seller agrees that such information shall not be given to Seller's ’s Customer or to Seller's ’s sales representative(s). If necessary, Seller shall merely advise its Customer(s) that credit has been declined on the account and that any questions should be directed to FactorFGI. Each Full Recourse Account(s) assigned to and purchased by Factor FGI is with full recourse to Seller and at Seller's ’s sole credit risk. Factor FGI shall have the right to charge back to Seller's ’s Reserve Account the amount of such Full Recourse Receivables at any time and from time to time either before or after their maturity. Seller agrees to pay Factor FGI upon demand the full amount thereof, together with all expenses incurred by Factor FGI up to the date of such payment, including reasonable attorney's ’s fees in attempting to collect or enforce such payment or payment of such Account(s)s, Factor's Account(s). FGI’s Credit Approval shall only begin after the first $5,000 fifteen percent (15%) of all Purchased Accounts relating to each Account Debtor. For purposes of determining Factor's FGI’s Credit Approval hereunder, the Purchased AccountsAccount(s) balance due Factor FGI from any given customer shall be calculated as the aggregate amount owed by that Customer less any credits to which such Customer may be entitled, and is not to be construed to mean individual invoices owed by that customer.
Appears in 1 contract
Samples: Sale of Accounts and Security Agreement (Coda Octopus Group, Inc.)
Purchase & Sale of Accounts. (a) Seller hereby offers to sell, assign, transfer, convey and deliver to Factor, as absolute owner, in accordance with the procedure detailed herein, all of Seller's right, title and interest in and to Seller's Accounts.
(ab) All Accounts shall be submitted to Factor on a Schedule of Accounts Sold/Xxxx of Sale listing each Account separately. The Schedule of Accounts Sold/Xxxx of Sale shall be in the form attached hereto as Schedule Exhibit "1(a2(b)," or in such other form as required by Factor, and shall be signed by a person acting or purporting to act on behalf of Seller. At the time the Schedule of Accounts Sold/Xxxx of Sale is presented, Seller shall also deliver to Factor one copy of an invoice for each Account together with evidence of shipment, furnishing and/or delivery of the Goods or rendition of service(s). Seller All invoices shall have plainly state on their face the option, unless such right is terminated by Factor, to submit Schedule of Accounts and related invoices by either facsimile transmission or electronically via internet transmissions. In the event factor permits Seller to utilize either practice, all risk of loss due to any errors, including transmission errors or otherwise, shall be born by Seller and Factor shall be held harmless for any errors or mistakes made in accepting or relying on such methods of transmission. Regardless of the Seller's election to use such optional transmission methods, Seller shall remain obligated to have delivered amounts payable hereunder are payable to Factor authentic original hard copies of all such Schedules of Accounts and related invoices within 3 days of either a facsimile or electronic transmissionat the remittance address set forth below.
(bc) Any and all Purchased Accounts shall be purchased on either a Credit Approved or with Full Recourse basis. In the absence of written Credit Approval, each Purchased Account shall be purchased at Full Recourse. No verbal Credit Approvals may be relied upon. Credit Approval(s) may be withdrawn, either orally or in writing, in Factor's discretion at any time if, in Factor's opinion, a Customer's credit standing becomes impaired before actual delivery of goods or rendering of services. Credit Approval(s) shall be limited to the specific terms and amounts indicated, and, notwithstanding any information subsequently provided to Seller by Factor, such Credit Approval(s) are automatically rescinded and withdrawn if the terms of sale vary from the terms approved by Factor, or if the terms of sale are changed by Seller without Factor's written Credit Approval on the new terms, or if the Purchased Account is not assigned to Factor within thirty (30) days from the date of issuance or are past due, (whichever shall so first occur}.
(c) With regard to sales without Credit Approval or in excess of any Credit Approvals to any given Customer, Seller agrees that any payments or credits applying to any Account owing by such Customer will be applied; first, to any Credit-Approved Purchased Accounts outstanding on Factor's books; second, to any Full Recourse Purchased Accounts outstanding on Factor's books; and, third, to any Accounts outstanding on Seller's books. This order of payment applies regardless of the respective dates the sales occurred and regardless of any notations on payment items.
(d) If Factor fails to collect a Purchased Account within 90 days of its due date, or 120 days from its creation (whichever shall sooner occur) for which Credit Approval has been given, and Factor fails to collect such Purchased Account solely to the customer's financial inability to pay, Seller shall not be liable to Factor for the Advance Amount of such Purchased Account. If Factor fails to collect a Purchased Account(s) within 90 days of its due date, or 120 days from its creation (whichever shall sooner occur) for any reason other than the customer's stated Financial Inability to Pay, Seller shall promptly repurchase such Purchased Account(s) from Factor for an amount equal to its applicable Purchase Price plus all fees due Factor up to and including the date of repurchase. Any Purchased Account for freight, samples, or miscellaneous sales (including, without limitation, the sale of goods and/or in quantities not regularly sold by Seller) is always assigned to Factor at Full Recourse, notwithstanding any written Credit Approval from Factor. At its option, Seller may repurchase any Purchased Account(s) from Factor by paying to Factor an amount equal to the Purchased Account's Purchase Price plus all applicable fees due Factor up to and including the date of repurchase.
(e) Factor shall have no liability of any kind for declining or refusing to give, or for withdrawing, revoking, or modifying, any Credit Approval pursuant to the terms of this Agreement, or for exercising or failing to exercise any rights or remedies Factor may have under this Agreement or otherwise. In the event Factor declines to give Credit Approval on any order received by Seller purchase or make advances against Accounts owing from a Customer and in advising Seller of such decline Factor furnishes Seller with information as to the credit standing of the Customer, such information shall be deemed to have been requested of Factor by Seller and Factor's advice containing such information is recognized as a privileged communication. Seller agrees that such information shall not be given to Seller's Customer or to Seller's sales representative(s). If necessary, Seller shall merely advise its Customer(s) that credit has been declined on the account and that any questions should be directed to Factor. Each Full Recourse Account(s) assigned to and purchased by Factor is with full recourse to Seller and at Seller's sole credit risk. Factor shall have the right to charge back to Seller's Reserve Account the amount of such Full Recourse Receivables at any time and from time to time either before or after their maturity. Seller agrees to pay Factor upon demand the full amount thereof, together with all expenses incurred by Factor up to the date of such payment, including reasonable attorney's fees in attempting to collect or enforce such payment or payment of such Account(s)s, Factor's Credit Approval shall only begin after the first $5,000 of all Purchased Accounts relating to each Account Debtor. For purposes of determining Factor's Credit Approval hereunder, the Purchased Accounts) balance due Factor from any given customer shall be calculated as the aggregate amount owed by that Customer less any credits to which such Customer may be entitled, and is not to be construed to mean individual invoices owed by that customer.
Appears in 1 contract
Samples: Accounts Purchase and Security Agreement (I/Omagic Corp)
Purchase & Sale of Accounts. (a) Seller hereby offers to sell, assign, transfer, convey and deliver to FactorFGI, as absolute owner, in accordance with the procedure detailed herein, all of Seller's ’s right, title and interest in and to Seller's ’s Foreign Accounts; provided at no time shall the maximum aggregate amount paid by FGI for Accounts purchased from Seller outstanding on FGI’s books exceed the Facility Amount.
(ab) All Foreign Accounts shall be submitted to Factor FGI on a Schedule of Accounts listing each Foreign Account separately. The Schedule of Accounts shall be in the form attached hereto as Schedule "1(a)," 2(b) or in such other form as required by FGI, and shall be signed by a person acting or purporting to act on behalf of Seller. At the time the Schedule of Accounts is presented, Seller shall also deliver to Factor FGI one copy of an a sales contract, purchase order, and invoice for each Foreign Account together with evidence of shipment, furnishing and/or delivery of the Goods or rendition of service(s). Seller shall have the option, unless such right is terminated by Factor, to submit Schedule of Accounts and related invoices by either facsimile transmission or electronically via internet transmissions. In the event factor permits Seller to utilize either practice, all risk of loss due to any errors, including transmission errors or otherwise, shall be born by Seller and Factor shall be held harmless for any errors or mistakes made in accepting or relying on such methods of transmission. Regardless of the Seller's election to use such optional transmission methods, Seller shall remain obligated to have delivered to Factor authentic original hard copies of all such Schedules of Accounts and related invoices within 3 days of either a facsimile or electronic transmission.
(bc) Any and all Purchased Accounts shall be purchased on either a Credit Approved or with Full Recourse basis, as determined by FGI in its sole and absolute discretion. In the absence of written Credit Approval, each the Purchased Account Accounts shall be purchased at Full Recourse. No If Goods are shipped or services are provided based on a verbal Credit Approvals may be relied uponapproval, it is Seller’s responsibility to ensure that such approval is received in writing in a timely manner. Credit Approval(s) may be withdrawn, either orally or in writing, in Factor's FGI’s sole and absolute discretion at any time if, in Factor's FGI’s opinion, a Customer's an Account Debtor’s credit standing or ability to perform with respect to the applicable Account becomes impaired before actual delivery of goods Goods or rendering of services. Credit Approval(s) shall be limited to the specific terms and amounts indicated, and, notwithstanding any information subsequently provided to Seller by FactorFGI, such Credit Approval(s) are automatically rescinded and withdrawn if the terms of sale vary from the terms approved by FactorFGI, or if the terms of sale are changed by Seller without Factor's FGI’s written Credit Approval on the new terms, or if the Purchased Account is not assigned to Factor FGI within thirty ten (3010) days from the date of issuance the invoice, or if the amount of outstanding Accounts of an Account Debtor exceed the maximum Credit Approval amount for the Account Debtor as determined by FGI from time to time. Seller further acknowledges that if Seller ships Goods or provides services to an Account Debtor who has outstanding Accounts from Seller, and such Account Debtor’s credit line and/or outstanding Credit Approval(s) have been withdrawn by FGI, and the Accounts created thereby, whether or not they are past duesold and assigned to FGI, (whichever shall so first occur}exceed 10% of the amount Accounts purchased from Seller outstanding on FGI’s books, that any Credit Approvals applying to those Purchased Accounts outstanding on FGI’s books are automatically deemed cancelled and all outstanding Purchased Accounts from that Account Debtor are with Full Recourse.
(cd) With regard to sales without Credit Approval or in excess of any deemed without Credit Approvals to any given CustomerApproval, Seller agrees that any payments or credits applying to any Account owing by such Customer Account Debtor will be applied; : first, to any Credit-Approved Purchased Accounts outstanding on Factor's FGI’s books, if any; second, to any Full Recourse Purchased Accounts outstanding on Factor's FGI’s books; and, third, to any Accounts outstanding on Seller's ’s books. This order of payment applies regardless of the respective dates the sales occurred and regardless of any notations on payment items.
(de) If Factor FGI fails to collect a Purchased Account within 90 ninety (90) days of its due date, or 120 days from its creation (whichever shall sooner occur) maturity for which Credit Approval has been given, and Factor fails FGI shall pay to collect such Purchased Account solely to Seller the customer's financial inability to pay, Seller shall not be liable to Factor for the Advance Net Invoice Amount of such Purchased AccountAccount within a reasonable time period, subject to the terms and provisions stated herein. If Factor fails to collect a Purchased Account(s) within 90 days At the sole discretion of its due date, or 120 days from its creation (whichever shall sooner occur) for any reason other than the customer's stated Financial Inability to PayFGI, Seller shall promptly may have the option to repurchase any such Purchased Account(s) from Factor Account for an amount equal to its applicable Purchase Price plus all fees due Factor up to and including the date of repurchasewhich Credit Approval has been granted. Any Purchased Account for progress payments, work-in-process, freight, samples, samples or miscellaneous sales (including, without limitation, the sale of goods Goods and/or in quantities not regularly sold by Seller) is always assigned to Factor FGI at Full Recourse, notwithstanding any written Credit Approval from Factor. At its option, Seller may repurchase any Purchased Account(s) from Factor by paying to Factor an amount equal to the Purchased Account's Purchase Price plus all applicable fees due Factor up to and including the date of repurchaseFGI.
(ef) Factor FGI shall have no liability of any kind for declining or refusing to give, or for withdrawing, revoking, or modifying, any Credit Approval pursuant to the terms of this Agreement, or for exercising or failing to exercise any rights or remedies Factor FGI may have under this Agreement or otherwise. In the event Factor FGI declines to give Credit Approval on any order received by Seller from a Customer an Account Debtor and in advising Seller of such decline Factor FGI furnishes Seller with information as to the credit standing of the CustomerAccount Debtor, such information shall be deemed to have been requested of Factor FGI by Seller and Factor's FGI’s advice containing such information is recognized as a privileged communication. Seller agrees that such information shall not be given to Seller's Customer ’s customers or to Seller's ’s sales representative(s). If necessary, Seller shall merely advise its Customer(scustomer(s) that credit has been declined on the account Account and that any questions should be directed to FactorFGI. Each Full Recourse Account(s) assigned to and purchased by Factor FGI is with full recourse to Seller and at Seller's ’s sole credit risk. Factor FGI shall have the right to charge back to Seller's ’s Reserve Account the amount of such Full Recourse Receivables Accounts at any time and from time to time either before or after their maturity. Seller agrees to pay Factor FGI upon demand the full amount thereof, together with all expenses incurred by Factor FGI up to the date of such payment, including reasonable attorney's ’s fees in attempting to collect or enforce such payment or payment of such Account(s)s, Factor's Account(s). FGI’s Credit Approval shall only begin after the first $5,000 15% of all Purchased Accounts relating to each Account Debtor. For purposes of determining Factor's FGI’s Credit Approval hereunder, the Purchased AccountsAccount(s) balance due Factor FGI from any given customer Account Debtor shall be calculated as the aggregate amount owed by that Customer Account Debtor less any credits to which such Customer Account Debtor may be entitled, and is not to be construed to mean individual invoices owed by that customerAccount Debtor.
Appears in 1 contract
Samples: Sale of Accounts and Security Agreement (Ocz Technology Group Inc)
Purchase & Sale of Accounts. (a) Seller hereby offers to sell, assign, transfer, convey and deliver to FactorFGI, as absolute owner, in accordance with the procedure detailed herein, all the universality of Seller's ’s right, title and interest in and to all present and future Seller's Accounts’s Accounts and their Related Rights; provided that the parties acknowledge their intention that, without affecting the validity of any sale, assignment, transfer, conveyance or delivery of any Purchased Account, the aggregate outstanding amount of Purchased Accounts Advanced on FGI’s books will not at any time exceed the Facility Amount.
(ab) All Accounts shall be submitted to Factor FGI on a Schedule of Accounts listing each Account separately. The Schedule of Accounts shall be in shall, at the form attached hereto as Schedule "1(a)," and shall request of FGI, be signed by a person acting or purporting to act on behalf of Seller. At the time the a Schedule of Accounts is presented, Seller shall also deliver to Factor FGI one copy of an the invoice and one copy, as applicable, of the sales contract or purchase order, in each case for each Account of $5,000.00 or more listed on the Schedule of Accounts together with evidence of shipment, furnishing and/or delivery of the applicable Goods or rendition of the applicable service(s). Seller ; provided, however, that copies of the invoices, sales contracts and purchase orders shall have be delivered to FGI for all Accounts irrespective of their amounts (i) if the option, unless such right is terminated by Factor, to submit Schedule aggregate of Accounts and related invoices by either facsimile transmission or electronically via internet transmissions. In of less than $5,000.00 for the event factor permits Seller to utilize either practice, all risk of loss due to any errors, including transmission errors or otherwise, shall be born by Seller and Factor shall be held harmless for any errors or mistakes made in accepting or relying on such methods of transmission. Regardless past twelve months represents more than 25% of the Seller's election to use such optional transmission methods, Seller shall remain obligated to have delivered to Factor authentic original hard copies aggregate amount of all such Schedules Accounts for those past twelve months, or (ii) following an Event of Accounts and related invoices within 3 days of either a facsimile Default so long as it is not cured or electronic transmissionwaived.
(bc) Any and all Purchased Accounts shall be purchased by FGI with full recourse to Seller, and Seller agrees to pay to FGI on either a Credit Approved or with Full Recourse basis. In demand the absence unpaid amount of written Credit Approval, each Purchased Account shall be purchased at Full Recoursespecified by FGI. No verbal Credit Approvals may be relied upon. Credit Approval(s) may be withdrawn, either orally or in writing, in Factor's discretion at any time if, in Factor's opinion, a Customer's credit standing becomes impaired before actual delivery of goods or rendering of services. Credit Approval(s) shall be limited to the specific terms and amounts indicated, and, notwithstanding any information subsequently provided to Seller by Factor, such Credit Approval(s) are automatically rescinded and withdrawn if the terms of sale vary from the terms approved by Factor, or if the terms of sale are changed by Seller without Factor's written Credit Approval on the new terms, or if the Purchased Account is not assigned to Factor within thirty (30) days from the date of issuance or are past due, (whichever shall so first occur}.
(c) With regard to sales without Credit Approval or in excess of any Credit Approvals to any given Customer, Seller agrees that any payments or credits applying to any Account owing by such Customer an Account Debtor will be applied; : first, to any Credit-Approved Purchased Accounts outstanding on Factor's booksAccount of such Account Debtor; and, second, to any Full Recourse Purchased other Accounts outstanding on Factor's books; and, third, to any Accounts outstanding on Seller's booksof such Account Debtor. This order of payment applies regardless of the respective dates the sales occurred and regardless of any notations on payment items.
(d) If Factor fails FGI reserves the right, in its sole and absolute discretion, to collect obtain credit insurance in its name, at Seller’s sole cost and expense, with respect to each specific Purchased Account (in each case with such insurance companies, in such amounts and with such coverage as determined by FGI in its sole and absolute discretion) with the proceeds of such insurance being the sole and exclusive property of FGI. Payments on such credit insurance received by FGI with respect to such Purchased Account shall either be applied to the Seller’s repurchase obligations with respect to such Purchased Account or otherwise applied to the Reserve Account. Seller agrees to provide prompt written notice to FGI in the event that a Purchased Account within 90 days of its due date, or 120 days from its creation (whichever shall sooner occur) for which Credit Approval has been given, would be subject to a claim under such credit insurance and Factor fails Seller agrees to collect fully cooperate with FGI in connection with each such Purchased Account solely to the customer's financial inability to pay, Seller shall not be liable to Factor for the Advance Amount of such Purchased Account. If Factor fails to collect a Purchased Account(s) within 90 days of its due date, or 120 days from its creation (whichever shall sooner occur) for any reason other than the customer's stated Financial Inability to Pay, Seller shall promptly repurchase such Purchased Account(s) from Factor for an amount equal to its applicable Purchase Price plus all fees due Factor up to and including the date of repurchase. Any Purchased Account for freight, samples, or miscellaneous sales claim (including, without limitation, providing to FGI and the sale of goods and/or in quantities not regularly sold by Seller) is always assigned to Factor at Full Recourse, notwithstanding any written Credit Approval from Factor. At its option, Seller may repurchase any Purchased Account(s) from Factor by paying to Factor an amount equal insurance company documentation and supporting information with respect to the applicable Purchased Account's Purchase Price plus all applicable fees due Factor up ). Seller agrees and acknowledges that (w) FGI has the sole discretion in determining whether to and including file claims under such credit insurance, (x) FGI is entitled to file claims under such credit insurance without notice to or the date consent of repurchase.
Seller, (ey) Factor shall have no liability of any kind for declining or refusing Seller remains fully liable to give, or for withdrawing, revoking, or modifying, any Credit Approval FGI pursuant to the terms of this Agreement, Agreement with respect to any Purchased Account notwithstanding the existence of such credit insurance or for exercising or failing any claim filed with respect thereto and (z) FGI shall have no liability to exercise Seller under any rights or remedies Factor may have under this Agreement or otherwise. In circumstances in the event Factor declines to give Credit Approval on that an insurance company rejects any order received claim filed under such credit insurance.
(e) FGI shall post all Account submitted by Seller from a Customer to and in advising accepted by it on its receivables processing system and shall mxxx such Account as having been “activated”. Notwithstanding the sale, assignment and transfer by Seller to FGI of all present and future Accounts of Seller pursuant to this Section 2, FGI shall not have any obligation to Seller to pay for or advance against any such decline Factor furnishes Seller with information as Account except to the credit standing extent that such Account are posted on FGI’s receivables processing system. Seller may, and at FGI’s request from time to time with respect to any Purchased Account specified by FGI will, deliver to FGI a specific assignment of the Customer, such information shall be deemed to have been requested of Factor an Account submitted by Seller and Factor's advice containing such information is recognized as to it (including a privileged communicationPurchased Account) in a form specified by FGI. The delivery by or on behalf of Seller agrees that such information to FGI of any assignment of an Account shall not be given necessary to Seller's Customer or to Seller's sales representative(s). If necessaryeffect a sale, Seller shall merely advise assignment, transfer, conveyance and delivery of any Account and its Customer(sRelated Rights.
(f) that credit has been declined on the account and that any questions should be directed to Factor. Each Full Recourse Account(s) assigned to and purchased by Factor is with full recourse to Seller and at Seller's sole credit risk. Factor FGI shall have the right to charge back to Seller's ’s Reserve Account the amount of such Full Recourse Receivables Purchased Accounts at any time and from time to time either before or after their maturity. Seller agrees to pay Factor FGI upon demand the full amount thereof, together with all expenses incurred by Factor FGI up to the date of such payment, including reasonable attorney's ’s fees in attempting to collect or enforce such payment or payment of such Account(s)sAccount(s).
(g) Notwithstanding any other provision of this Agreement, Factor's Credit Approval of any Schedule of Accounts or of any assignment that Seller may deliver or cause to be delivered to FGI, FGI will at no time purchase, and Seller will not sell, assign, transfer, convey or deliver to FGI, that portion of any Account that represents an obligation to pay taxes.
(h) The sale, assignment and transfer of any Purchased Accounts and Related Rights to FGI pursuant to this Agreement shall only begin after not constitute or result in the first $5,000 assumption by FGI of any obligation of Seller or any other Person in connection with the Purchased Accounts or Related Rights, or under any agreement, instrument or other document relating thereto.
(i) This Agreement shall not become effective until the date on which each of the following conditions precedent are satisfied:
(i) FGI shall have received this Agreement and each of the other Transaction Documents all properly executed;
(ii) FGI shall have received Financing Statements and each of the other documents to be executed and/or delivered by Seller or any other Person pursuant to this Agreement;
(iii) FGI shall have received payment by Seller of all Purchased Accounts relating fees which are due and payable on the Closing Date and expenses;
(iv) FGI shall have received searches and certificates required under this Agreement;
(v) FGI shall have received the Guaranty Agreements, in form and substance satisfactory to FGI, duly executed by the Guarantors;
(vi) FGI shall have received security, in the form of a lien and general security interest, in form and substance satisfactory to FGI, duly executed by each Account Debtor. For purposes of determining Factor's the Credit Approval hereunderParties and, where appropriate, registered and rendered opposable to third parties to preserve, protect, publish or perfect the Purchased Accountssecurity created thereunder;
(vii) balance due Factor FGI shall have received from any given customer each of the Credit Parties an officer’s certificate (i) attaching a certified copy of its organizational documents, (ii) attaching a certified copy of all authorizing resolutions in connection with the documents to which it is party, (iii) attaching an incumbency certificate with respect to its officers and directors executing the documents and (iv) confirming that all representations and warranties in the documents to which it is a party shall be calculated true and correct in all material respects on and as of such date; and
(viii) FGI shall have received evidence that the aggregate amount owed by that Customer less any credits blocked account with Wxxxx Fargo Bank is opened and a blocked account agreement, in form and substance satisfactory to which FGI, with such Customer may be entitled, and is not to be construed to mean individual invoices owed by that customeraccount bank has been entered into.
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Samples: Sale of Accounts and Security Agreement (Quest Solution, Inc.)
Purchase & Sale of Accounts. (a) Seller hereby offers to sell, assign, transfer, convey and deliver to FactorFGI, as absolute owner, in accordance with the procedure detailed herein, all of Seller's right, title and interest in and to Seller's Accounts; provided at no time shall the maximum aggregate amount paid by FGI for Accounts purchased from Seller outstanding on FGl's books exceed the Facility Amount.
(ab) All Accounts shall be submitted to Factor FGI on a Schedule of Accounts listing each Account separately. The Schedule of Accounts shall be in the form attached hereto as Schedule "1(a)," 1 or in such other form as required by FG I, and shall be signed by a person acting or purporting to act on behalf of Seller. At the time the Schedule of Accounts is presented, Seller shall also deliver to Factor FGI one copy of an a sales contract, purchase order, and invoice for each Account together with evidence of shipment, furnishing and/or delivery of the Goods or rendition of service(s). Seller shall have the option, unless such right is terminated by Factor, to submit Schedule of Accounts and related invoices by either facsimile transmission or electronically via internet transmissions. In the event factor permits Seller to utilize either practice, all risk of loss due to any errors, including transmission errors or otherwise, shall be born by Seller and Factor shall be held harmless for any errors or mistakes made in accepting or relying on such methods of transmission. Regardless of the Seller's election to use such optional transmission methods, Seller shall remain obligated to have delivered to Factor authentic original hard copies of all such Schedules of Accounts and related invoices within 3 days of either a facsimile or electronic transmission.
(bc) Any and all Purchased Accounts shall be purchased on either a Credit Approved or with Full Recourse basis, as determined by FGI in its sole and absolute discretion. In the absence of written Credit Approval, each the Purchased Account Accounts shall be purchased at Full Recourse. No If Goods are shipped or services are provided based on a verbal Credit Approvals may be relied uponapproval, it is Seller's responsibility to ensure that such approval is received in writing in a timely manner. Credit Approval(s) may be withdrawn, either orally or in writing, in FactorFGI's sole and absolute discretion at any time if, in FactorFGI's opinion, a Customeran Account Debtor's credit standing or ability to perform with respect to the applicable Account becomes impaired before actual delivery of goods Goods or rendering of services. Credit Approval(s) shall be limited to the specific terms and amounts indicated, and, notwithstanding any information subsequently provided to Seller by FactorFGI, such Credit Approval(s) are automatically rescinded and withdrawn if the terms of sale vary from the terms approved by FactorFGI, or if the terms of sale are changed by Seller without FactorFGI's written Credit Approval on the new terms, or if the Purchased Account is not assigned to Factor FGI within thirty ten (3010) days from the date of issuance the invoice, or if the amount of outstanding Accounts of an Account Debtor exceed the maximum Credit Approval amount for the Account Debtor as determined by FGI from time to time. Seller further acknowledges that if Seller ships Goods or provides services to an Account Debtor who has outstanding Accounts from Seller, and such Account Debtor's credit line and/or outstanding Credit Approval(s) have been withdrawn by FGI, and the Accounts created thereby, whether or not they are past duesold and assigned to FGI, (whichever shall so first occur}exceed 10% of the amount Accounts purchased from Seller outstanding on FGI's books, that any Credit Approvals applying to those Purchased Accounts outstanding on FGI's books are automatically deemed cancelled and all outstanding Purchased Accounts from that Account Debtor are with Full Recourse.
(cd) With regard to sales without Credit Approval or in excess of any deemed without Credit Approvals to any given CustomerApproval, Seller agrees that any payments or credits applying to any Account owing by such Customer Account Debtor will be applied; : first, to any Credit-Approved Purchased Accounts outstanding on FactorFGI's books, if any; second, to any Full Recourse Purchased Accounts outstanding on FactorFGI's books; and, third, to any Accounts outstanding on Seller's books. This order of payment applies regardless of the respective dates the sales occurred and regardless of any notations on payment items.
(de) If Factor FGI fails to collect a Purchased Account within 90 ninety (90) days of its due date, or 120 days from its creation (whichever shall sooner occur) maturity for which Credit Approval has been given, and Factor fails FGI shall pay to collect such Purchased Account solely to Seller the customer's financial inability to pay, Seller shall not be liable to Factor for the Advance Net Invoice Amount of such Purchased AccountAccount within a reasonable time period, subject to the terms and provisions stated herein. If Factor fails to collect a Purchased Account(s) within 90 days At the sole discretion of its due date, or 120 days from its creation (whichever shall sooner occur) for any reason other than the customer's stated Financial Inability to PayFGI, Seller shall promptly may have the option to repurchase any such Purchased Account(s) from Factor Account for an amount equal to its applicable Purchase Price plus all fees due Factor up to and including the date of repurchasewhich Credit Approval has been granted. Any Purchased Account for progress payments, work-in-process, freight, samples, samples or miscellaneous sales (including, without limitation, the sale of goods Goods and/or in quantities not regularly sold by Seller) is always assigned to Factor FGI at Full Recourse, notwithstanding any written Credit Approval from Factor. At its option, Seller may repurchase any Purchased Account(s) from Factor by paying to Factor an amount equal to the Purchased Account's Purchase Price plus all applicable fees due Factor up to and including the date of repurchaseFGI.
(ef) Factor FGI shall have no liability of any kind for declining or refusing to give, or for withdrawing, revoking, or modifying, any Credit Approval pursuant to the terms of this Agreement, or for exercising or failing to exercise any rights or remedies Factor FGI may have under this Agreement or otherwise. In the event Factor FGI declines to give Credit Approval on any order received by Seller from a Customer an Account Debtor and in advising Seller of such decline Factor FGI furnishes Seller with information as to the credit standing of the CustomerAccount Debtor, such information inforn1ation shall be deemed to have been requested of Factor FGI by Seller and FactorFGI's advice containing such information is recognized as a privileged communication. Seller agrees that such information shall not be given to Seller's Customer customers or to Seller's sales representative(s). If necessary, Seller shall merely advise its Customer(scustomer(s) that credit has been declined on the account Account and that any questions should be directed to FactorFGI. Each Full Recourse Account(s) assigned to and purchased by Factor FGI is with full recourse to Seller and at Seller's sole credit risk. Factor FGI shall have the right to charge back to Seller's Reserve Account the amount of such Full Recourse Receivables Accounts at any time and from time to time either before or after their maturity. Seller agrees to pay Factor FGI upon demand the full amount thereof, together with all expenses incurred by Factor FGI up to the date of such payment, including reasonable attorney's fees in attempting to collect or enforce such payment or payment of such Account(s)s, FactorAccount(s). FGI's Credit Approval shall only begin after the first $5,000 15% of all Purchased Accounts relating to each Account Debtor. For purposes of determining FactorFGI's Credit Approval hereunder, the Purchased AccountsAccount(s) balance due Factor FGI from any given customer Account Debtor shall be calculated as the aggregate amount owed by that Customer Account Debtor less any credits to which such Customer Account Debtor may be entitled, and is not to be construed to mean individual invoices owed by that customerAccount Debtor.
Appears in 1 contract
