ACCOUNTS RECEIVABLE SERVICING AGREEMENT
THIS
ACCOUNTS RECEIVABLE SERVICING AGREEMENT (the “Agreement”) is made as of the
21st day of
February, by and between Mosaic Financial Services, LLC, a Delaware limited
liability company, (the “Provider”) having a business address at 000 Xxxxxxxxx
Xxx, Xxx Xxxx, Xxx Xxxx and eRXSYS, Inc., a Nevada Corporation, (the “Company”)
having its principal place of business and executive offices at 00000 Xxx Xxxx
Xxxxxx, Xxxxx X0, Xxxxxx, Xxxxxxxxxx 00000-0000.
W
I T N E S S E T H:
WHEREAS, the
Provider is in the trade or business of servicing Receivables (as defined in
Section 1.2. hereof) for businesses for a fee;
WHEREAS, the
Company desires to avail itself of the services of the Provider under the terms
and conditions of this Agreement; and
WHEREAS, the
parties have entered into that certain Line of Credit Agreement dated as of the
date hereof (the “Credit Agreement”) secured in part by the Receivables;
and
WHEREAS, the
Provider wishes to service the Receivables of the Company under the terms and
conditions of this Agreement.
NOW
THEREFORE, in
consideration of the mutual promises contained in this Agreement, the
sufficiency and receipt of which are hereby acknowledged, the parties agree as
follows:
1.
Definitions. When
used herein, the following terms shall have the following meanings.
1.1. “Account
Debtor shall
have the meaning set forth in Section 9-102(a)(3) of the New York UCC and shall
include any person liable on any Receivable, including without limitation, any
guarantor of the Receivable and any issuer of a letter of credit or
banker’s
acceptance.
1.2. “Receivables” shall
mean all those accounts, receivables, chattel paper, instruments, contract
rights, documents, general intangibles, letters of credit, drafts, bankers
acceptances, and rights to payment, and all proceeds thereof (all of the
foregoing being referred to as “receivables”), arising out of the invoices and
other agreements identified on or delivered with any invoice transmittal
delivered by the Company to the Provider.
1.3.
“Reconciliation
Date” shall
mean the last calendar day of each month during the Term (as defined herein) of
this Agreement.
1.4. Other
Capitalized Terms. All of
other capitalized terms, not otherwise defined herein, shall have the meaning
ascribed to them in the Letter of Credit.
1
2.
Service
of Receivables.
2.1.
Collection
Activities. On each
Reconciliation Date hereunder, the Company shall deliver to the Provider copies
of all invoices (the “Invoices”), in electronic format, that have been delivered
to Account Debtors by the Company for products delivered during such month (to
the extent not previously delivered pursuant to the terms of the Credit
Agreement). The Provider shall have the right to contact customers with
outstanding balances, including but not limited to correspondence and telephone
contact. All legal proceedings will be the responsibility of the Company. The
Provider shall not be responsible whatsoever to the Company in the event that
any account balance owed by an Account Debtor is not paid by the Account
Debtor.
2.2
Collections.
Subject to the right to withhold amounts as set forth in Section 2.3, upon
receipt by the Provider of any funds or other consideration with respect to any
Invoices (the “Collections”), the Provider shall adjust such Collections against
the Advances given to the Company on a daily basis; provided, that if the
Company is in default under this Agreement, the Provider shall apply all the
Collections to the Company’s
Obligations hereunder in such order and manner as the Provider may determine. If
an item of the Collections is not honored or the Provider does not receive good
funds for any reason, the amount shall be included in the Account Balance as if
the Collections had not been received.
2.3.
Administrative
Fee and other expenses. On
each Reconciliation Date, a monthly Administrative Fee of ONE AND THREE QUARTER
PERCENT (1.75%) of the maximum amount of the Line of Credit (as that term is
defined in the Credit Agreement) (i.e. initially, $500,000), as such amount may
be increased pursuant to Section 2.1 of the Credit Agreement, shall accrue and
shall be payable pursuant to Section 2.4. In addition, the Company agrees to
reimburse the Provider for the cost of wire transfers at the rate of THIRTY
DOLLARS ($30.00) for each such transfer, and TWENTY DOLLARS ($20.00) for the
delivery of any documents by overnight courier. Notwithstanding anything herein
which may be to the contrary, the Provider may withhold the Administrative Fee
and other permitted expenses from the Collections that are otherwise to be
remitted to Company.
2.4.
Accounting. The
Provider shall prepare and send to the Company on or before the SEVENTH
(7th)
calendar day following the close of each month, an accounting of the Collections
for the immediately preceding month. The accounting shall be deemed correct and
conclusive unless the Company delivers a written objection to the Provider
within THIRTY (30) calendar days after the Provider mails the accounting to the
Company.
3. Other
Fees, Costs and Expenses; Indemnification.
Notwithstanding anything to the contrary in this Agreement, the Company will pay
to the Provider immediately upon demand all fees, costs and expenses (including
the fees of attorneys and professionals and their costs and expenses) that the
Provider incurs or may from time to time impose in connection with any of the
following: (a) preparing, negotiating, administering, and enforcing this
Agreement or any other agreement executed in connection herewith, including any
amendments, waivers or consents in connection with any of the foregoing,
2
(b) any
litigation or dispute (unless instituted by the Company against the Provider) in
any way relating to the Receivables, this Agreement or any other agreement
executed in connection herewith or therewith, (c) enforcing any rights against
the Company or any guarantor, or any Account Debtor, (d) collecting the
Receivables and the Obligations, and (e) the representation of the Provider in
connection with any bankruptcy case or insolvency proceeding involving the
Company, any Receivable, any Account Debtor, or any guarantor. The Company shall
indemnify and hold the Provider harmless from and against any and all claims,
actions, damages, costs, expenses, and liabilities of any nature whatsoever
arising in connection with any of the foregoing.
4.
Severability,
Waiver, and Choice of Law. In the
event that any provision of this Agreement is deemed invalid by reason of law,
this Agreement will be construed as not containing such provision and the
remainder of the Agreement shall remain in full force and effect, the Provider
retains all of its rights, even if it makes an Advance after an Event of
Default. If the Provider waives an Event of Default, it may enforce a later
Event of Default. Any consent or waiver under, or amendment of, this Agreement
must be in writing. Nothing contained herein, or any action taken or not taken
by the Provider at any time, shall be construed at any time to be indicative of
any obligation or willingness on the part of the Provider to amend this
Agreement or to grant to the Company any waivers or consent. This Agreement
shall be governed by and interpreted in accordance with the internal laws of the
State of New York, without regard to any relevant provisions relating to choice
of laws.
5.
Notices. All
notices shall be given to the Provider at X.X. Xxx 00, Xxxxxxxx Xxxx, XX 00000
and to the Company at the address set forth on the first page of this Agreement
and shall be deemed to have been delivered and received: (a) if mailed, three
(3) calendar days after deposited in the United States mail, first class,
postage pre-paid, (b) one (1) calendar day after deposit with an overnight mail
or messenger service; or (c) on the same date of confirmed transmission if sent
by hand delivery, telecopier, telefax or telex.
6.
Jury
Trial. THE
COMPANY AND THE PROVIDER EACH HEREBY (a) WAIVE THEIR RESPECTIVE RIGHTS TO A JURY
TRIAL ON ANY CLAIM OR ACTION ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT, ANY RELATED AGREEMENTS, OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY; (b) RECOGNIZE AND AGREE THAT THE FOREGOING WAIVER CONSTITUTES
A MATERIAL INDUCEMENT FOR IT TO ENTER IN TO THIS AGREEMENT; AND (c) REPRESENT
AND WARRANT THAT IT HAS REVIEWED THIS WAIVER, HAS DETERMINED FOR ITSELF THE
NECESSITY TO REVIEW THE SAME WITH ITS LEGAL COUNSEL, AND KNOWINGLY AND
VOLUNTARILY WAIVES ALL RIGHTS TO A JURY TRIAL.
7.
Term
and Termination. The term
of this Agreement shall be for one (1) year from the date hereof (the “Term”),
and from year to year thereafter (each a “Renewal Term”) unless either party
provides written notice to the other at least ONE HUNDRED EIGHTY (180) calendar
days prior to the end of the then effective Term or Renewal Term.
Notwithstanding the foregoing, any termination of this Agreement shall not
affect
3
the
Provider’s security interest in the Collateral and the Provider’s ownership of
the Pledged Receivables, and this Agreement shall continue to be effective, and
the Provider’s rights
and remedies hereunder shall survive such termination, until all transactions
entered into and Obligations incurred hereunder or in connection herewith have
been completed and satisfied in full.
8.
Other
Agreements. The terms
and provisions of this Agreement shall not adversely affect the rights of the
Provider or any of its affiliates under any other document, instrument or
agreement. The terms of such other documents, instruments and agreements shall
remain in full force and effect notwithstanding the execution of this Agreement.
In the event of a conflict between any provision of this Agreement and any
provision of any other document, instrument or agreement between the Company on
the one hand, and the Provider or any affiliate, the Provider shall determine in
its sole discretion which provision shall apply. The Company acknowledges
specifically that any security agreements, liens and/or security interests
currently securing payment of any obligations of the Company owing to the
Provider or any affiliate also secure the Company’s
obligations under this Agreement, and are valid and subsisting and are not
adversely affected by execution of this Agreement. The Company further
acknowledges that (a) any collateral under other outstanding security agreements
or other documents between the Company and the Provider or any affiliate secures
the obligations of the Company under this Agreement and (b) a default by the
Company under this Agreement constitutes a default under other outstanding
agreements between the Company and the Provider or any
affiliate.
-
-
4
IN
WITNESS WHEREOF, the
Company and the Provider have executed this Agreement on the day and year above
written.
Mosaic
Financial Services, LLC
By:
/s/ Xxxxxx X. Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
Member
ERXSYS,
Inc.
By:
/s/ Xxxxxx XxxXxxxxx
Name:
Xxxxxx XxxXxxxxxx
Title:
CEO
5
