SYSTRAN Financial Services Corporation
FACTORING AGREEMENT
This Factoring Agreement (the "Agreement") is between SYSTRAN Financial
Services Corporation ("SYSTRAN") and United States Antimony Corporation
(the"Seller"), whose address is set forth on the last page hereof. In
consideration of mutual covenants herein contained and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS: A "Debtor" means a person or entity obligated to pay
a Xxxx. A "Xxxx" means any right to payment for services rendered or goods
sold by Seller to a Debtor evidenced by a writing which complies with the
general requirements of SYSTRAN as those may be set forth in the Seller
Information Manual, as described in Paragraph 2.8. A "Chargeback" means a
return of a Xxxx to Seller and a debit of Seller's account. "Recourse" means
the right to Chargeback a Xxxx to Seller.
2. PURCHASE OF BILLS
2.1 Seller agrees to present for purchase such Bills as it desires
SYSTRAN to purchase arising from the services of Seller
and goods sold by Seller. SYSTRAN, at its sole discretion, may purchase
such Bills as SYSTRAN determines meet the standards set
by SYSTRAN from time to time. Seller shall submit to SYSTRAN an original
and two (2) copies of each Xxxx which shall be attached
to a schedule form provided by SYSTRAN. Should the Debtor require any
additional documentation as a prerequisite to payment, Seller
will also provide such documentation with each Xxxx.
2.2 SYSTRAN will settle with the Seller by mailing or sending via
facsimile to the Seller a settlement statement setting
forth the Bills purchased, the amount paid, and any deductions made for fees,
charges or security deposit and depositing funds as follows: [ ] Mail funds
due Seller. [ ] U.P.S. funds due Seller. [ β ] Wire funds due Seller
into bank account specified by Seller on wire
authorization form. [ ] Deposit funds due Seller.
2.3 Any payment to Seller may be reduced by SYSTRAN by any amount
due from Seller to SYSTRAN, including but not limited to the Security deposit,
Chargebacks, fees and costs.
2.4 SYSTRAN will give notice to the Debtors of the assignment of
any Bills purchased by placing a legend on the Bills
stating the Bills have been sold and assigned to SYSTRAN and are payable to
SYSTRAN at an address designated by SYSTRAN. Seller agrees that all Debtors
can be notified of an address specified by SYSTRAN, and Seller will not
attempt to direct payment other than
to that address. Seller agrees to pay all costs and expenses incurred by
SYSTRAN in giving such notice or notices as SYSTRAN deems necessary by
whatever means SYSTRAN deems necessary. All remittances received by Seller for
payment of Bills previously sold to SYSTRAN are the property of SYSTRAN and
shall be held in trust by Seller for SYSTRAN and shall be delivered
immediately to
SYSTRAN in the identical form of payment received by Seller. Should Seller
receive a check comprising payment both to Seller and SYSTRAN, Seller will
turn over the check to SYSTRAN, and SYSTRAN will refund Seller's portion to
Seller, less any amounts
outstanding and due from Seller to SYSTRAN. In the event that Seller collects
directly from the Debtor a Xxxx which has been sold to SYSTRAN and Seller does
not deliver immediately to SYSTRAN the identical form of payment received by
Seller, Seller will be charged
an administrative fee. The amount of the fee shall be determined by
SYSTRAN at its sole discretion, but shall not exceed three times
the normal fee, pursuant to paragraph three below. Seller agrees that any
collection by or directly from the Debtor by Seller of a Xxxx
which has been sold to SYSTRAN is a default under the terms of this
Agreement.
2.5 Any Bills in a special purchase shall be subject to all
provisions of this Agreement. A special purchase is the purchase
at the beginning of the factoring relationship of Seller's Bills that are
either billed by Seller, previously financed by lender, or
previously sold and assigned to another factor.
2.6 SYSTRAN has provided to Seller a Seller Information Manual,
which is a guide to policy and procedures concerning
daily submission of Bills, collection efforts, and other matters. The
Seller Information Manual is not part of this Agreement. Seller
hereby acknowledges receipt of the Seller Information Manual. These
procedures are only guidelines to ensure the efficient operation
of the factoring process. SYSTRAN may change any procedure at any time, and
may choose not to follow procedures at its discretion
3. SERVICE FEES. SYSTRAN shall charge and Seller shall pay a fee
of four point zero percent (4.0%) of the face amount of
all Bills purchased for the first $ 1,200,000.00 in total purchases and two
point zero percent (2.0%) of the face amount of all Bills
purchased thereafter, and an additional service fee as follows: $ 1.00 per
xxxx . The service fee shall be payable upon the purchase of
any Xxxx by SYSTRAN, and SYSTRAN may choose to collect service fees wither
from payments due Seller or may xxxx the Seller
periodically, SYSTRAN may, upon prior notice to Seller, change any fee and
such change shall be effective upon receipt of the notice; provided, that
SYSTRAN may change the amount of any fee caused by a change in SYSTRAN's cost
of funds without prior notice to
Seller, but must notify Seller of such change on the next settlement statement
sent to the Seller. A fee change due to a change in cost
of funds will be effective upon the date of the change which will be indicated
on the settlement statement.
3.1 MINIMUM VOLUME AND FEE. Seller agrees to sell to SYSTRAN a
minimum of $15,000.00 in Bills per month. In the event that Seller fails to
sell $15,000.00 in Bills per month for each of two consecutive months,
Seller's fee will automatically be increased at the beginning of the third
month. The minimum fee after the increase will be 4.5% or the current fee,
whichever is higher. SYSTRAN may increase the fee beyond these levels as its
discretion. The fee will be automatically lowered to the last fee in effect
should Seller's monthly purchase volume exceed $15,000.00 per month for each
of two consecutive months.
4. DEPOSIT. In order (a) to secure Seller's performance of its
obligations arising hereunder, (b) to provide security for payment
FA1198 Seller Approval \s\ JCL
SYSTRAN Financial Corporation
FACTORING AGREEMENT Continued . . .
of Seller's liabilities or deficiencies arising hereunder, and (c) to provide
security to SYSTRAN's borrowing sources, Seller shall deliver to SYSTRAN the
deposit described below. Seller acknowledges that SYSTRAN has given its
lender a security interest in all of its
customer deposits to secure payment of certain credit lines to finance
SYSTRAN's Seller's accounts receivable. Seller hereby transfers and assigns
to SYSTRAN all of Seller's rights in and to such deposit on the conditions set
forth below and subordinates all of its right,
title and interest in and to such deposit to the right, title and interest of
SYSTRAN's lender to such deposit. The foregoing transfer and subordination are
absolute and unconditional. Subject to the subordination, the terms of the
deposit are as follows.
4.1 AMOUNT OF DEPOSIT. Seller's deposit shall be equal to fifteen
percent (15 % ) of Seller's Bills that are ninety
(90) days old or less computed from date of purchase.
4.2 ADJUSTMENT OF DEPOSIT. The amount of Seller's deposit will be
reviewed and, if necessary, adjusted each day. Increases in the amount of
Seller's deposit will be withheld by SYSTRAN from payments to Seller to the
extent necessary pursuant to
this Agreement. If sufficient bills are not purchased to fund the increase,
Seller will pay the amount of the increase upon demand. Decreases will be
repaid to Seller's deposit amount.
4.3 REPAYMENT OF DEPOSIT. Effective upon termination of this
Agreement, no Deposit will be released to Seller
except at SYSTRAN's sole discretion. Effective upon termination, all other
sums that may become due to Seller by SYSTRAN will be included in the Deposit.
The effective Deposit percentage may be greater than the Deposit percentage
set forth in paragraph 4.1. The balance of the Deposit will be repaid to
Seller at such time as all Bills are paid in full. In the event that
Chargebacks to Seller exceed
the amount of Seller's Deposit, none of Seller's Deposit will be repaid and
Seller will pay SYSTRAN an amount equal to such excess. Such excess amount
shall bear interest at four percent (4%) over prime as announced by SYSTRAN's
lender from the date notice of
the excess liability is rendered to Seller until payment is received.
5. SECURITY INTEREST. The purchase of the Bills of Seller by SYSTRAN
is absolute subject to the right to Chargeback. In addition to the outright
ownership of those Bills purchased by SYSTRAN, to secure the payment and
performance of indebtedness and obligations of Seller to SYSTRAN now existing
and hereafter arising, SYSTRAN shall have and is hereby granted a present
continuing security interest in all Bills, accounts and accounts receivable of
Seller, whether now existing or hereafter created, together with all
guaranties, security, books and records, accounts, correspondence, and
documents with respect to such Bills, and, in addition, Seller
hereby grants SYSTRAN a security interest in the deposit provided for in
Section 4 above, all of Seller's inventory, contract rights,
general intangibles, money, instruments, documents, chattel paper, securities,
credits, claims and demands against SYSTRAN or others, and all other goods and
personal property of all kinds belonging to the Seller, whether presently
existing or hereafter acquired, together
with any proceeds, products.
5.1 FINANCING STATEMENTS. Seller shall not execute or file any
financing statement, supplements or amendments thereto, or any other
instruments or security agreement covering the collateral described above in
favor of anyone other the SYSTRAN. Seller shall execute and deliver to SYSTRAN
any financing statements, title documents, supplements or amendments thereto
and any
other instruments which SYSTRAN from time to time may reasonably require to
perfect, preserve, protect or enforce the security
interest of SYSTRAN hereunder or the priority of such security interest.
Seller shall pay all costs of filing such statements or instruments with
appropriate governmental authorities together with the costs of all lien
searches. Seller agrees that either a carbon, photocopy, or
other reproduction of this Agreement is sufficient as a financing statement
under this Agreement.
5.2 SYSTRAN may, in its sole discretion, elect to discharge any
security interest, lien or other encumbrance upon any xxxx
for service or xxxx for goods sold purchased by SYSTRAN. Any such payments and
all expenses incurred in connection therewith shall
be treated as a Chargeback. SYSTRAN shall have no obligation to discharge any
such security interest, lien or encumbrance.
6. RECOURSE, DISPUTES AND CHARGEBACKS.
6.1 All Bills are purchased by SYSTRAN from Seller with full
recourse. All Bills may be Chargedback to Seller at any
time after ninety (90) days after the purchase date if not collected from
Debtor within such period or at any time, if SYSTRAN
determines, in its sole discretion, that the Xxxx is not collectable.
SYSTRAN shall not deem a disputed Xxxx uncollectible without allowing Seller a
reasonable time to settle the dispute not to exceed fourteen (14) days from
notice of dispute. It is within SYSTRAN's discretion as to when a Xxxx over
such time periods may be Chargedback to Seller. Regardless of Xxxx type: 1)
All Bills in a special purchase by SYSTRAN, as defined in paragraph 2.5, are
subject to Chargeback ninety (90) days from the date of special purchase by
SYSTRAN:
2) All Bills owing by Canadian Debtors and logistics companies are subject to
Chargeback ninety (90) days from the date of purchase
by SYSTRAN.
6.2 In addition, SYSTRAN reserves the right, however, from time to
time and at its absolute discretion, to Chargeback
to Seller any Xxxx which does not conform to the representations and
warranties set forth in the Agreement or is discovered not to
conform with the reasonable standards which SYSTRAN may set for Bills.
SYSTRAN shall have a continuing security interest in any Xxxx which is
Chargedback to the Seller, but Seller shall immediately upon receiving notice
of a Chargeback pay to SYSTRAN the Chargeback amount and does hereby
authorize SYSTRAN to deduct any Chargeback from the daily settlements
described in Section 2. Interest on any unsatisfied Chargeback shall bear
interest at the rate of four percent (4%) over prime as announced by
SYSTRAN's
lender. Chargeback of any Xxxx does not authorize Seller to collect any
outstanding sum owing on that Xxxx from a Debtor. All amounts owing on from
the Debtor on a Chargeback Xxxx remain payable to SYSTRAN.
6.3 COLLECTION OF BILLS. SYSTRAN may, but is not required to,
commence any action, including legal action, to
collect a Xxxx. All costs of collection, including attorney fees, court
fees, and costs of investigation, will be the responsibility of the Seller.
Prior to any act of default, SYSTRAN will commence litigation only with
Seller's authorization. Subsequent to an act of default, SYSTRAN may file
suit as it decides necessary without Seller's authorization. In the event of
default, Seller hereby grants authorization to SYSTRAN to settle or compromise
any xxxx dispute, including litigation, with any uncollected amount being
subject to Chargeback, together with all other amounts for which Seller is
obligated to SYSTRAN.
7. WARRANTIES AND REPRESENTATIONS.
7.1 Seller warrants and represents with respect to all Bills sold to
SYSTRAN that (a) the xxxx is genuine and in all respects
what it purports to be; (b) Seller has good title to the Xxxx and the Xxxx is
free and clear of all encumbrances, liens and prior claims, and
that the Seller has the legal right to sell the Xxxx; (c) Seller has no
knowledge of any fact which may impair the validity of the Xxxx or make it
uncollectible in accordance with its terms and face amount; (d) the Xxxx made
according to lawful and valid contracts which Seller has executed; (e) there
are no counter claims or setoff or defenses existing in favor of the Debtor,
whether arising from the services or products which are the subject of the
Xxxx or otherwise there has ben no agreement as to the issuance or granting of
any discount
on the Xxxx; (f) if the Xxxx is not a duplicate of and does not cover the same
services or charges or purchase price as a Xxxx previously purchased by
SYSTRAN from the Seller or xxxx directly by the Seller to the Debtor; (g)
Seller does not own, control, or exercise dominion over the business of any
Debtor whose Bills are factored by Seller to SYSTRAN. Seller is not a subsidiar
y of any Debtor and
no Debtors control or exercise dominion over the business of Seller; (h)
Seller will not under any circumstances or in any manner
whatsoever interfere with any of SYSTRAN's rights under the Factoring
Agreement in connection with SYSTRAN's factoring of Seller's Bills; (i)
immediately upon sale of Bills to SYSTRAN, Seller will make proper entries on
its books and records, disclosing the absolute sale of such Bills to SYSTRAN;
(j) Seller has not and will not pledge the credit of SYSTRAN to any person or
business for any purpose
whatsoever; (k) until the sale by Seller to Debtor of the inventory described
in the Xxxx, Seller had good title to that inventory, that
inventory was free of all encumbrances, liens and prior claims, and Seller had
the legal right to sell that inventory.
7.2 If the Seller is a corporation, it is duly organized, existing,
and in good standing under the laws of Montana. If Seller represents him or
herself to be a sole proprietorship or a partnership, such representation
shall be deemed conclusive and binding upon
Seller. Seller is duly qualified to do business and is in good standing in
every other state in which such qualification is required. If
Seller is a corporation, execution, delivery and performance hereof are within
its corporate powers, have ben duly authorized, and are
not in contradiction of law or the terms of its charter, by-laws or other
incorporation papers, or any indenture, agreement or undertaking
to which it is a party or by which it is bond. In addition, the Seller has
all licenses and certificates necessary for the operation of its
business and the issuance of Bills.
8. POWER OF ATTORNEY. In order to carry out the Factoring
Agreement, and to avoid unnecessary notification of Debtors,
Seller irrevocably appoints SYSTRAN or any per designated by SYSTRAN, its
special attorney-in-fact or agent with power to: Xxxx,
receive and collect all amounts which may be due or become due to Seller from
Debtors and to use Seller's name for purposes of billing and collection of
amounts due; Delete Seller's address on all Bills mailed to Debtor and
substitute SYSTRAN's address; Receive, open
and dispose of all mail addressed to Seller or Seller's trade name at
SYSTRAN's address; Negotiate checks received in payment whether payable to
Seller or to SYSTRAN; endorse the name of Seller or Seller's trade name on any
checks or other evidences of payment that
may come into the possession of SYSTRAN on Bills purchased by SYSTRAN and on
any invoices or other document relating to any of the Bills ; In Seller's
name, or otherwise, demand, xxx for, collect and get or give releases or any
and all monies due or to become due
on Bills; Compromise, prosecute, or defend any action, claim or proceeding as
to Bills purchased by SYSTRAN. Nothing herein shall require SYSTRAN to
instigate or become a party to any litigation as more fully set forth in
Paragraph 6.3; Notify Debtors of assignment of accounts to SYSTRAN; and
notify, direct, and instruct Debtors in Seller's name or Seller's trade name
of the remit-to address and procedures for making payment on any Bills that
are sold to SYSTRAN; Take all steps necessary to ensure payment of such
amounts
due; and do any and all things in Seller's name necessary and proper to carry
out the purpose intended by the Factoring Agreement.
9. ADDITIONAL DOCUMENTS. The Seller shall at all times, do, make,
execute and deliver all such additional and further instruments as may be
reasonably requested by SYSTRAN in order to more completely vest in and assure
to SYSTRAN and make
available to it, the property and rights herewith or hereafter granted or
assigned and transferred to SYSTRAN as collateral and to
evidence the sale of the Bills to SYSTRAN and to carry into effect the
provisions and intent of this Agreement.
10. LOCATION OF BOOKS AND RECORD, PLACE OF BUSINESS. It is
understood that Seller's place of business is the one set forth in this
Agreement and that all of its books, accounts, correspondence, papers and
records pertaining to the services or sales
of products are located there, and all such books, accounts,
correspondence, papers and records will be opened for SYSTRAN's
inspection at all reasonable times.
11. INDEMNIFICATION OF SYSTRAN; SALES AND EXCISE TAXES. Seller will
indemnify and hold SYSTRAN harmless against any and all liability, loss or
expense, including attorney's fees, caused by or arising out o any alleged
claims, defenses, setoff or
counterclaims asserted by any party and relating in any manner to the Bills
purchased by SYSTRAN hereunder. In the event any
sales or excise taxes are imposed by any state, federal or local authorities
with respect to any of the Bills sold and assigned hereunder,
where such taxes are required to be withheld or paid by SYSTRAN, Seller shall
also indemnify SYSTRAN and hold it harmless with
respect to all such taxes and hereby authorize SYSTRAN to charge to Seller's
account any such tax that is paid or withheld by
SYSTRAN. SYSTRAN may charge the deposit for any amount due under this
paragraph.
12. FINANCIAL INFORMATION. So long as Seller factors or has any
absolute or contingent obligation of any kind owing to SYSTRAN, the Seller
will provide information regarding the business, affairs and financial
condition of the Seller and its subsidiaries
as SYSTRAN may reasonably request, including financial statements.
13. REORGANIZATION, ACQUISITIONS, CHANGE OF NAME OR LOCATION.
Seller will not, and will not permit any subsidiary to merge or consolidate
with or into any corporation, or sell, lease, transfer, or otherwise dispose
of all or any substantial
part of its assets, whether now owned or hereafter acquired. Seller shall
notify SYSTRAN in writing not less than thirty (30) days prior
to (a) any change of its name or use of any trade names or (b) any change in
the address of the chief executive office and/or chief place
of business of Seller or the location of any records pertaining to the Bills.
14. BANKRUPTCY. Seller agrees to notify SYSTRAN of any voluntary or
involuntary bankruptcy petition filed by or against it
or any guarantor within twenty-four (24) hours of such filing.
15. LITIGATION. Except as disclosed in writing, Seller represents and
warrants to SYSTRAN as follows; There are no suits or proceedings pending or
to the knowledge of Seller, threatened against or affecting Seller or any of
its subsidiaries which, if adversely determined, would have a material adverse
effect of the financial condition or business of Seller and its subsidiaries
and there are no proceedings by or before any governmental commission, board,
bureau, or other administrative agency pending or, to the knowledge
of Seller, threatened, against Seller or any of its subsidiaries. Further,
Seller represents and warrants there is no claim, loss contingency,
or proceeding, whether or not pending, threatened or imminent, against or
otherwise affecting Seller that involves the possibility of any judgment or
liability not fully covered by insurance or that may result in a material
adverse change in the business, properties, or
condition, financial or otherwise, of Seller.
16. TRADE NAMES. Seller represents and warrants to SYSTRAN that it
utilizes no trade names in the conduct of its business
except United States Antimony Corporation.
17. TAXES. Seller represents and warrants to SYSTRAN that: Seller
has filed all federal, state, and local tax returns and other
reports it is required to file and has paid or made adequate provision for
payments of all such taxes, assessments, and other governmental charges.
18. NO CONSENT OR APPROVAL NEEDED. Seller represents and warrants to
SYSTRAN as follows: No consent or approval
of any person, no waiver of any lien or other similar right, and no consent,
license, approval, authorization, or declaration of any governmental
authority, bureau, or agency is or will be required in connection with the
execution, delivery, performance, or enforcement,
validity or priority of this Agreement or any other agreement, instrument, or
document to be executed or delivered in connection
herewith.
19. Terms and Termination
This Agreement is for a term of one (1) year from the date that a duly
authorized representative of SYSTRAN executes this Agreement. The term of this
Agreement shall renew automatically for additional one (1) year terms unless
sooner terminated in accordance with the terms hereof. Seller may terminate
this Agreement effective at the end of any term by giving thirty (30) days
prior written notice to SYSTRAN at the address set forth in this Agreement.
Seller may continue to offer any of its Bills to SYSTRAN during such thirty
(30) day period. SYSTRAN may terminate this Agreement at any time and for any
reason by notifying Seller in writing of such termination.
All of Seller's representations, warranties, and other provisions of this
Agreement shall survive such termination until SYSTRAN has
been paid in full and Seller has fully performed all of its obligations. In
addition, should any transfer of money or property to SYSTRAN hereunder be
avoided in a bankruptcy proceeding involving Seller, any Account Debtor of
Seller, or otherwise, then Seller's obligations hereunder shall be reinstated
and/or supplemented to the extent of the avoided transfer, whether or not this
Agreement has otherwise
been terminate.
Notwithstanding the foregoing, Seller has the option to terminate this
Agreement prior to the end of any term by giving SYSTRAN
thirty (30) days prior written notice. Seller may continue to offer any of
its Bills to SYSTRAN during such thirty (30) day period.
Seller shall be deemed to have terminated this Agreement prior to the end of
any term on the date that Seller shall have ceased
presenting Bills to SYSTRAN in the normal course for an uninterrupted period
of thirty (30) days ("Deemed Termination"). Upon notice of early termination,
or the date of a Deemed Termination by Seller, prior to the end of any term,
whether or not Seller continues to
offer its Bills to SYSTRAN during the thirty (30) day notice period applicable
to Seller, Seller shall be obligated to pay to SYSTRAN,
and Seller's deposit may be charged, an early termination premium ("Early
Termination Premium") in an amount equal to ______
percent ( 2.0% ) times the dollar volume of Bills purchased by SYSTRAN during
the month in which Seller's dollar volume of Bills purchased by SYSTRAN was
the greatest multiplied by the number of months remaining in the then current
term, or eleven (11)
months, whichever is lower. Any partial month remaining in the current term
shall constitute a full month for the purpose of calculating the Early
Termination Premium. In addition, if SYSTRAN buys Bills from Seller as part
of a special purchase, and should Seller
terminate this Agreement within the first four (4) months of the term of this
Agreement, Seller's Deposit shall be charged an Early Termination Premium in
the amount of the balance of the Deposit on the termination date. The
termination date shall be thirty (30) days
after SYSTRAN's receipt of the termination notice or on the Deemed Termination
date, unless a termination notice specifies a date that
is more than thirty (30) days but less than sixty (60) days after SYSTRAN's
receipt of the termination notice.
If SYSTRAN terminates this Agreement prior to the end of any term upon any
default in the performance of Seller under thisAgreement, in view of the
ascertaining actual damages and by mutual agreement of the parties
as to the reasonable calculation of SYSTRAN's lost profits as a result
thereof, Seller shall be obligated to pay SYSTRAN upon the
effective date of such termination, and Seller's deposit may be charged, a
premium in an amount equal to the Early Termination
Premium as set forth above.
20. EVENTS OF DEFAULT. The following shall be events of default
under the terms of this Agreement: (a) default by Seller in
the performance or payment, when due or payable, of any obligation under this
Agreement or any other obligation of the Seller to
SYSTRAN or any other financial institution or bank; (b) Seller agrees to the
appointment of a receiver for its assets, makes general assignment for the
benefit of creditors or declares that it is unable to pay its debts as they
mature; (c) Seller files a proceeding under
any law for the relief of Debtors, including but not limited to, Title 11 of
the United States Code, the so-called Bankruptcy Code or any other similar
law which may exist; (d) any involuntary petition under the Bankruptcy Code or
similar statue has been filed against the
Seller and not dismissed within sixty (60) days after filing without the entry
of an order for relief; (e) the issuance of an attachment, execution, tax
assessment or similar process against the Seller or its property which is not
released within ten (10) days of its attachment; (f) any change in the
conditions, financial or otherwise, of the Seller which reasonably causes
SYSTRAN to deem itself insecure; (g) any of the representations and warranties
in Section 7.1 of this Agreement were not true with respect to any Xxxx at the
time the Xxxx was sold to SYSTRAN or any other representation or warranty in
this Agreement was not true when made.
20.1 In addition to all other remedies provided by law, upon the
occurrence of an event of default, SYSTRAN may upon notice to the Seller
immediately increase the amount of the deposit required under Section 4 of
this Agreement to one-hundred percent
(100%) of the outstanding amount of Bills purchased from the Seller, and the
Seller shall immediately deliver to SYSTRAN funds sufficient to create this
one-hundred percent (100%) deposit. If Seller shall fail to make any such
payment, SYSTRAN may immediately Chargeback to the Seller any or all of the
Bills which SYSTRAN has purchased from Seller, and Seller shall immediately
pay to
SYSTRAN the amount of such Chargeback. Should Seller fail to make such
payment, SYSTRAN may seek payment of the deficiency
from Seller and simultaneously collect all Chargeback Bills until the
deficiency is satisfied. The deficiency will bear interest at the rate
of prime plus four percent (4%) from the date it is incurred. Prime shall be
that rate announced by SYSTRAN's lender on the date
of the deficiency and may be adjusted with any change in the prime rate.
20.2 In addition to all other remedies provided by law, upon the
occurrence of an Event of Default, SYSTRAN, upon
application to a court of competent jurisdiction and without the necessity of
posting a bond or undertaking, shall be entitled as a matter
of strict right, without notice and without regard to the value of any Bills
or the solvency of any party bound for payment of the Bills,
to injunctive relief to enforce the terms of this Agreement and to the
appointment of a Receiver to (a) take possession of, collect and
apply the proceeds of Bills, and take any and all actions deemed appropriate
by such Receiver to enforce such Bills, and/or enter
upon the business premises of, take possession, of and operate the Seller and
all of its assets including, without limitation, taking any and
all actions deemed appropriate, for the protection, possession, control, managem
ent and operation of the Seller's business, its assets and
the Bills. Seller hereby acknowledges and agrees that if an Event of Default
occurs and continues for a period of more than Five (5)
days after the Seller's receipt of written notice of such default, (a) the
Bills and the proceeds of the same are then in danger of being
lost, removed or materially injured; and (b) the Seller is insolvent, or in
imminent danger of insolvency. Seller unconditionally consents
to the appointment of a receiver as provided herein. The receiver shall have
all of the rights and powers permitted under the laws of
any state wherein any asset of the Seller is situated. Seller will pay
SYSTRAN upon demand all expenses, including receiver's fees,
attorney's fees, costs and agent's compensation, incurred pursuant to this
paragraph, and any such amounts paid by SYSTRAN shall
be secured by the security interest granted herein. Further, Seller expressly
consents that the receiver appointed under this paragraph
may be SYSTRAN or one of SYSTRAN's employees, representatives or attorneys.
Nothing herein requires SYSTRAN to seek the appointment of a receiver or
injunctive relief, nor does this paragraph in any way diminish SYSTRAN's right
under paragraph 8 or any
other provision of this Agreement or under applicable law.
21. EXPENSES OF ENFORCEMENT. With respect to any default under this
Agreement, Seller shall reimburse SYSTRAN for
all costs and expense, including reasonable attorneys', paralegal',
accountants', and other experts and professional fees and all other
fees and costs reasonably and actually incurred in connection with the
default, or in the event that a suit, action arbitration, or other
proceeding of any nature, including, without limitation, any proceeding under
the United States Bankruptcy Code, any action seeking
a declaration of rights or an action for recission is instituted to interpret
or enforce this Agreement, including, but not limited to such
fees an costs associated with trial and appeals.
22. JURISDICTION AND VENUE. This Agreement shall be deemed to be a
contract under the laws of the State of Oregon and for all purposes shall be
governed and construed in accordance with the laws of that state. Seller
irrevocably agrees that any legal
action or proceeding brought by or against Seller with respect to the
Agreement will be brought in the Courts of the State of Oregon
or in the U.S. District Court for the District of Oregon. Seller consents to
the jurisdiction of such courts. This provision shall not
limit the right of SYSTRAN to bring such actions or proceedings against Seller
in the court of such other states or jurisdictions where
Seller may be subject to jurisdiction. Seller expressly authorizes service
or process in any such suit or action on its behalf upon
Registered Agent: Xxxx X. Xxxxxxxx , at (address) 0000 Xx 000, Xxxxxxxx
Xxxxx, Xx. 00000 or upon such other agent
as SYSTRAN may approve in writing, as its agent for such purposes.
23. WAIVER, NOTICE. The waiver by SYSTRAN of the breach of any term
of this Agreement or of the compliance therewith
shall not be construed as a waiver of any other breach or compliance. Notices
from either party to the other shall be given in writing
and mailed postage prepaid, registered or certified mail, or placed in the
hands of a national overnight delivery service, addressed to
the addresses set forth opposite each party's name below, or at such other
address as either party may hereafter advise the other inwriting.
24. ASSIGNMENT. Seller may not assign any of its rights or
obligations hereunder. SYSTRAN may assign or grant a security interest in
this Agreement or in any Bills purchased by SYSTRAN without Seller's consent.
SYSTRAN may assign any of its rights and remedies with respect to such Bills
including the right to notify Debtors to make payments to SYSTRAN's assignee.
25. SEVERABILITY. The provisions of this Agreement are severable and
if any of these provisions shall be held by any court of competent
jurisdiction to be unenforceable such holding shall not affect or impair any
other provisions hereof.
26. COMPLETE UNDERSTANDING. This Agreement comprises the complete
understanding among the parties and may only be varied by a writing executed
by the parties hereto. Paragraph headings are for convenience only.
27. NO OFFER/COMMITMENT. The presentation of this Agreement to
Seller does not constitute either an offer or commitment
to purchase Bills or to extend to Seller credit of any kind.
Executed this 30 Day of
March, 0000
Xxxxxx Xxxxxx Antimony Corporation
By: \s\ Xxxx X. Xxxxxxxx
Title:
President
Address: 0000 Xxxxxxxx Xxxxx Xx.
Xxxxxxxx, Xx 00000
