10.1 E.S. Bankest Lending Agreement
E.S. Bankest, LLC
AMENDED AND RESTATED STANDARD COLLECTION FACTORING AGREEMENT
SUPERSEDING THAT STANDARD COLLECTION FACTORING AGREEMENT EXECUTED
THE 28TH DAY OF OCTOBER, 2000
Stratesec Incorporated
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, XX. 00000
Gentlemen:
The following shall constitute the terms upon which E.S. Bankest, LLC ("E.S.
Bankest" and "we" and/or "us") shall act as sole factor of STRATESEC
INCORPORATED ("company" and "you" and/or "your") (see section 11 for the
definition of certain capitalized terms):
SECTION 1 Sales and Approval of Receivables
1.1 You hereby sell, assign and transfer to us and we hereby purchase from you
all of your now outstanding and hereafter created or acquired Receivables with
full power to collect and otherwise deal therewith as the sole exclusive owner
thereof. You further sell and assign to us all of your interest in the goods
represented by the Receivables and in all goods that may be returned by
customers, all rights as an unpaid vendor or lienor, all rights of stoppage in
transit, replevin and reclamation relating thereto, all rights in and to all
security therefor and guarantees thereof, and all rights against third parties
with respect thereto. Any goods so recovered or returned shall be set aside,
marked with our name and held for our account as owner. You shall notify us
promptly of all such returned or recovered goods.
1.2 (a) You will submit for our written approval the amount, terms of payment
and delivery, and all other conditions of each prospective sale and each
approved sale shall be made only in accordance with such approval, which may be
withdrawn at any time before the later of (i) actual delivery or (ii) sale, of
the merchandise or rendition of the services to the customer. We may, in our
sole judgment, and from time to time, establish credit lines for sales to some
or all of your customers and, provided sales to such customers are on your
normal selling terms which we have approved, all sales to such customers within
the established credit lines will be Approved Receivables provided that delivery
or performance is completed while the credit line remains in effect. All of our
credit approvals will be in writing.
(b) We reserve the right to amend or withdraw a credit approval or
credit line at any time by notice to you, which notice will be promptly
confirmed in writing. A credit line will be automatically suspended (i.e.
withdrawn) during any period that the customer is 60 or more days past due. We
will reinstate any suspended credit line in accordance with, and subject to, our
credit line approval guidelines.
(c) Without limiting the foregoing, our approval shall automatically be
withdrawn if any terms are changed or if delivery is made more than thirty days
after the approved delivery date, or more than thirty days after the date of
approval if no delivery date is specified. If the amount of any sale is
increased without our prior written consent, our approval shall apply only to
the original amount approved.
(d) We shall have no liability to you or to any customer for our
refusal to credit approve a Receivable or establish a credit line or for our
withdrawal of a credit approval or a credit line.
1.3 We shall assume the Credit Risk on all Approved Receivables. We shall have
full recourse to you for all other reasons (other than Credit Risk), which cause
us not to collect Receivables sold by you to us. We shall have full recourse to
you on all Non-Approved Receivables. Any Receivables for freight, samples or
miscellaneous sales (including, without limitation, the sale of merchandise
and/or quantities not regularly sold by you) in always assigned to us at your
risk, notwithstanding any written credit approval from us.
1.4 In the event that monies shall, at any time, be owing from one of your
customers for both Approved Receivables and Non-Approved Receivables, we may,
and you so authorize and approve us to, apply all payments received first in
reduction of the outstanding Approved Receivables.
SECTION 2 Purchase Price, Commissions, Advances, and Reserve
2.1 We will purchase each Receivable at the Net Amount of thereof, less our
commission thereon (hereinafter, the "Purchase Price"). "Net Amount" shall mean
the face amount less all returns, discounts (which may, at our option, be
calculated on the longest or shortest terms), credits or allowances of any
nature at any time issued, owing, claimed by customers, granted or outstanding,
and out-of-pocket expenses as set forth in the Reimbursable Out-of-Pocket Costs
Schedule Attachment as Schedule A (the "Out-of-Pocket Expenses").
2.2 Upon the Payment Date (as defined in Section 11.8 hereof) with respect to
any Receivable, the Purchase Price, less any debits or reserves, shall be
credited to your account. The credit balance of the account shall be available
for distribution to you, at your request. We may retain from sums payable to you
a reserve, which reserve may be revised from time to time at our discretion, in
order to provide for Customer Disputes, possible credit losses on Non-Approved
Receivables, sums owing to us for goods/services purchased by you from any other
firm or company factored or otherwise financed by us, and the Obligations.
Amounts in your account shall also be subject to reduction for payment of any
charges or credits which may be charged to you pursuant to this Agreement, and
shall be given as security for all of your Obligations hereunder or arising from
any other agreement between you and us.
2.3 From time to time during the term of this Agreement and prior to the Payment
Date, upon your request and in our sole discretion, exercised in a commercially
reasonable manner, we may advance funds ("Advance") to you up to eighty percent
(80%) of the Purchase Price of a Receivable. Any Advance in excess of the
percentages set forth above shall be deemed to be an Overadvance, which
Overadvance shall be made in our sole discretion and also subject to this
Agreement.
2.4 All Advances, Overadvances and other credits, charges or payments specified
herein, except for charges which reduce the Purchase Price pursuant to Section
2.2, shall be charged to your account. You shall be charged interest in the
amount as and at such times as herein provided on the outstanding balance of the
account. The account shall be reduced by all payments received with respect to a
Receivable. In addition, in the event that the Out-of-Pocket Expenses are not
repaid through the Purchase of Receivables, we may charge those amounts against
your account.
2.5 You will pay us a factoring commission, which commission shall be due and
payable at the time of our acceptance of the purchase or assignment of each
Receivable, in the form of a Discount in the amount of the Applicable Factoring
Commission Percentage of each Receivable purchased by us (the "Applicable
Factoring Commission Percentage"). The Applicable Factoring Commission is
predicated upon the number of days the Receivable remain outstanding and shall
be two percent (2%) for the initial 30 days, and an additional one-half of one
percent (.5%) for days 31-60 and an additional one-half of one percent (.5%) for
days 61-90 The minimum factoring commission on each invoice shall be Five
Dollars ($5.00).
2.6 During each contract year (the 12 months immediately following the date
hereof or any anniversary thereof you agree to pay to us Factoring Commissions
aggregating at least One Hundred Twenty Thousand Dollars ($120,000), ("Minimum
Annual Commission"). If during any month the aggregate factoring commissions
paid by you is less than Ten Thousand Dollars ($10,000) ("Minimum Monthly
Commission"), then you shall pay to us, or we may charge your account with an
amount equal to the difference between the Minimum Monthly Commission and the
factoring commission actually paid during that month (the "Deficiency Charge").
At such time as you exceed the Minimum Annual Commission, the Minimum Monthly
Commission shall be waived for the remainder of the contract year and the
Deficiency Charges paid during said contract year shall be applied against
subsequent factoring commission charges incurred during said contract year. In
the event that this Factoring Agreement is terminated prior to the end of the
term as provided in Section 9, then the minimum factoring commission for the
remainder of the term will be payable at such time.
2.7 We will charge your account our standard wire transfer fee on all wire
transfers, and you will reimburse us for exchanges on checks, charges for
returned items and all other bank charges and other charges and costs as
stipulated in the Reimbursable Out-of-Pocket Costs Schedule attached hereto. We
may also, at our option, charge your account for all amounts owing by you to us
under this Agreement and all other Obligations.
2.8 We shall have no obligation to purchase any Receivables owing from customers
located outside the continental United States. In the event that we agree to
purchase Receivable owing from customers located outside the continental United
States, you shall pay to us and we may conclusively charge to your account (i)
the amount of all fees, costs and commissions charged to us by our correspondent
foreign factors to which we re-assign or through which we re-factor such sales,
(ii) all premiums on any credit insurance obtained by us in connection
therewith, (iii) all currency rate differentials, currency conversion charges,
transmittal charges and other costs and expenses relating thereto, and (iv) any
and all sums which we may be required to pay or assume under our arrangements
with any foreign factors. All charge-backs of foreign sales by such foreign
factors shall be binding on you and shall relieve us of the Credit
Risk with respect thereto. You acknowledge that we have informed us of the terms
of our arrangements with any and all such foreign factors, including, without
limitation, the Code of International Factoring Customs (IFC76) and Master
Agreement relating thereto; you consent thereto and agree to fulfill and to
assist in fulfilling those customs as far as your part of the transactions in
concerned; your failure to comply with any thereof shall immediately relieve us
of the Credit Risk with respect to all affected Receivables. You shall affix to
all invoices to foreign customers such legend regarding payment thereof to the
foreign factor as we may from time to time require.
2.9 You shall pay us on demand any debit balance at any time existing in your
account, upon written receipt posted 15 days prior to payment date.
SECTION 3 Interest
3.1 You will pay interest on the daily balance of all monies remitted, paid or
otherwise advanced to you or for your account net of all payments received from
you or on your behalf including the Purchase Price of Receivables purchased by
us hereunder which is credited to your account on the Collection Date. Interest
will be calculated daily at a rate of two hundred basis points (2.0%) plus the
Base Rate (the "Interest Rate") and will be charged to your account monthly, in
arrears. For the purpose of calculating interest hereunder, payments which are
applied to reduce the amount outstanding hereunder shall be applied after
allowing five (5) business days for the clearance of checks and other forms of
payment. All other indebtedness due by you to us under this Agreement and on all
other Obligations, except those specifying a different rate, from the date
incurred through the date paid will be charged interest calculated daily at the
greater of that rate which is the maximum rate applicable by law, or the rate of
one thousand basis points (10.0%) plus the Base Rate and, at our option, may be
charged to your account. Any publicly announced decrease or increase in the Base
Rate shall result in an adjustment to the Interest Rate on the first business
day of the month following such announcement. Interest shall be calculated on
the basis of a 360-day year for the actual number of days elapsed. In no event
shall the Interest Rate exceed the maximum rate permitted by applicable law. IT
IS THE INTENTION OF THE PARTIES HERETO NOT TO MAKE ANY AGREEMENT VIOLATIVE OF
THE LAWS OF THE STATE OF FLORIDA OR THE UNITED STATES RELATING TO USURY. IN NO
EVENT, THEREFORE, SHALL ANY INTEREST DUE HEREUNDER BE AT A RATE IN EXCESS OF THE
HIGHEST LAWFUL RATE, i.e., IN NO EVENT SHALL WE CHARGE OR SHALL YOU BE REQUIRED
TO PAY ANY INTEREST THAT, TOGETHER WITH ANY OTHER CHARGES HEREUNDER THAT MAY BE
DEEMED TO BE IN THE NATURE OF INTEREST, HOWEVER COMPUTED, EXCEEDS THE MAXIMUM
LAWFUL RATE OF INTEREST ALLOWABLE UNDER THE LAWS OF THE XXXXX XX XXXXXXX XXX/XX
XX XXX XXXXXX XXXXXX. SHOULD ANY PROVISION OF THIS AGREEMENT OR ANY OTHER
AGREEMENT BETWEEN US BE CONSTRUED TO REQUIRE THE PAYMENT OF INTEREST THAT
EXCEEDS SUCH MAXIMUM LAWFUL RATE, ANY SUCH EXCESS SHALL BE AND IS EXPRESSLY
HEREBY WAIVED BY US. SHOULD ANY EXCESS INTEREST IN FACT BE PAID, SUCH EXCESS
SHALL BE DEEMED TO BE A PAYMENT OF THE PRINCIPAL AMOUNT OF OUTSTANDING
INDEBTEDNESS OWING BY YOU TO US AND SHALL BE APPLIED TO SUCH PRINCIPAL.
3.2 If a Receivable or any payment is charged back to you after the Collection
Date, you will pay us interest at the Interest Rate on such Net Receivable or
such payment from the Collection Date to the charge back date.
SECTION 4 Representations, Warranties and Covenants
4.1 You represent, warrant and covenant as to each Receivable sold and assigned
hereunder that, at the time of its creation, the Receivable is a valid, bona
fide account, representing an undisputed indebtedness incurred by the named
account debtor for goods or property actually sold, leases or licensed and
delivered or for services completely rendered; there are no setoffs, offsets or
counterclaims, genuine or otherwise, against the Receivable; the Receivable does
not represent a sale to a parent, subsidiary or a consignment, sale or return or
guaranteed sale or payment on reorder or a xxxx and hold transaction; the
Receivable does not represent a sale to a customer that is insolvent or is the
subject of any state or federal bankruptcy or insolvency proceeding; no
agreement exists permitting any deduction or discount (other than the discount
stated on the invoice and approved by us); you are the lawful owner of the
Receivable and have the right to sell and assign the same to us; the Receivable
is free of all security interests, liens and encumbrances other than those in
our favor, and the Receivable is due and payable in accordance with its terms.
4.2 You shall not grant or suffer to exist any lien upon or security interest in
your inventory in favor of any party other than us without our written consent,
or prior knowledge.
4.3 You are a solvent corporation; duly organized and in good standing under the
laws of the State of Delaware and qualified in all States where such
qualification is required; the execution, delivery and performance of this
Agreement have been duly authorized and are not in contravention of any
applicable law, your corporation articles of organization or regulations or any
agreement or order by which you are bound.
4.4 You shall not change your corporation name, state of registration or
organization, entity type or the location of your office or open any new offices
without giving us at least thirty (30) days prior written notice. At the present
time, you carry on business only at the above address and the addresses set
forth below:
0000 Xxx Xxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000
0000 Xxxxxx Xxxxxx, Xxxxx 000-X, Xxxxxx, XX 00000
0000 Xxxxxxxxxx Xxxx., Xxxxx 00, Xxxx Xxxxxxxxxx, XX 00000
4.5 All books and records pertaining to the Receivables or to any inventory
owned by you shall be maintained solely and exclusively at the above addresses
or the addresses listed in Section 4.4 and no such books and records shall be
moved or transferred without giving us thirty (30) days prior written notice.
4.6 You shall not sell, lease, transfer or otherwise dispose of all or
substantially all of your property or assets, or consolidate with or merge into
or with any corporation, corporation or entity without our prior written
consent, which will not be unreasonably withheld.
4.7 You shall hold all returned, replevied or reclaimed goods coming into your
possession in trust for us and all such goods shall be segregated and identified
as held in trust for our benefit and you shall, at our request, and at your
expense, deliver such goods to such place or places as we may designate.
4.8 Receivables sold to us hereunder and represented by invoices bearing the
tradenames or styles set forth below are wholly owned by you and the
undertakings, representations and warranties made in connection therewith shall
be identical to and of the same force and effects as those made with respect to
invoices bearing your corporate name. The tradenames or styles set forth below
are the only tradenames or styles under which you transact business:
Stratesec, Incorporated
Security System Integration, Inc. (SSI)
You shall not utilize any other tradenames or styles without first giving us
thirty (30) days written notice.
4.9 No discounts, credits or allowances will be issued, granted or allowed by
you to customers and no returns will be accepted without our prior written
consent. Discounts, credits or allowances once issued may be claimed only by the
customer; no third party beneficiary rights are created hereby.
4.10 You shall have paid all taxes which have become due and payable and there
are no judgments, assessments, or liens filed against you or any of your
property, real or personal.
SECTION 5 Disputes, Chargebacks and Reserves
5.1 With respect to any Receivable, upon the occurrence of a breach of any of
the representations or warranties contained in Section 4.1, or the assertion by
a customer of a Dispute or other defense to payment, other than financial
inability, an Approved Receivable shall automatically become a Non-Approved
Receivable and we may charge back such Receivable to you.
5.2 You will notify us promptly of and settle all Disputes at your cost and
expense, including attorneys' fees, and will pay us promptly the amount of the
Receivables affected thereby. However, if any Dispute is not settled by you
within sixty days after the maturity date of the invoice or within such shorter
period as we may determine, we may settle, compromise or litigate such Dispute
in our or your name upon such terms as we in our sole discretion deem advisable
and for your account and risk. We may also in our discretion and without notice
to you take possession of and sell any returned goods at such prices and upon
such terms as we deem advisable. We may charge any deficiency, and all costs and
expenses, including attorney's fees, to your account, In addition to all other
rights to which we are entitled under this Agreement, if there is any Dispute as
to any Receivable, or if any Receivable on which you have the Credit Risk or
evidenced by an invoice for less than Fifty Dollars ($50.00) is unpaid at its
maturity, we may at any time charge the amount of such Receivable back to your
account. Immediately upon the occurrence of any Dispute and regardless of the
date on which we charge back the affected Receivable, the Credit Risk on such
Receivable, to the extent theretofore borne by us, shall automatically revert to
you. We may also charge back the amount of any Receivable which is not paid to
us at maturity due to acts of God, war, civil strife, currency restrictions,
foreign political impediments or the like.
5.3 We may, at our option, charge back to you all amounts owing on Non-Approved
Receivables which are not paid when due. We shall also have the right to charge
back to you any payment which we receive with respect to a Non-Approved
Receivable if such payment is subsequently disgorged by us or disgorged by our
assigns, whether as a result of any proceeding in bankruptcy or otherwise.
5.4 A charge back shall not constitute a resale to you of said Receivables;
however, upon payment by you to us of all monies due with respect to such charge
back Receivable, title thereto shall revert to you, subject, however, to our
continuing security interest therein. You agree to indemnify and save us
harmless from and against any and all loss, costs and expenses, caused by or
arising out of disputed Receivables, including, but not limited to, collection
expenses and attorney's fees incurred with respect thereto. We may charge our
normal and standard late payment and/or delinquency charges to your customers.
SECTION 6 Administration
6.1 You shall, from time to time, execute and deliver to us confirmatory
schedules of Receivables sold to us, together with one copy of each invoice and
acceptable evidence of shipment and such other documentation and proofs of
delivery as we may require. Each invoice shall bear a notice, in form
satisfactory to us, that it has been sold and assigned to and is payable in
United States dollars only to us, and that all payments are to be made to the
following address: X.X. Xxx 000000, Xxxxx, XX 00000-0000. However, the issuance
of invoices to customers shall itself constitute the assignment to us of the
Receivables represented thereby. You will keep all shipping and delivery
receipts and copies of all invoices at your office available for our inspection,
and will deliver them to us promptly at our request. The sale of your
Receivables to us and our ownership thereof will be properly reflected on your
books. You agree to prepare and mail all invoices or, at our option, you shall
send all of the invoices to us ready for mailing to the customers, in which
event the postage and clerical charges incurred by us in mailing the same will
be paid by you.
6.2 You agree to execute and deliver to us such further instruments of
assignments, financing statements and instruments of further assurance as we may
reasonably require. You authorize us file such UCC financing statements (and if
necessary, to execute on your behalf) as we may deem necessary in order to
perfect and maintain the security interests granted by you in accordance with
this and any other agreement between you and us, including, without limitation,
UCC-1 financing statements, continuation statements and amendments, and you
further agree that we may file this Agreement or a copy thereof as such UCC
financing statement. You agree to bear the cost of all filing fees, filing
taxes, search reports, legal fees and other charges incurred by us in the
perfection, protection and preservation of the rights and collateral security
herein granted to us. In the event of termination and/or assignment of any
contractual relationships with us, we agree to execute any and all required UCC
discharge statements which have reasonably been requested by you, upon payment
in full of all obligations owing from you and any of your affiliated entities,
to us.
6.3 If any remittances are made directly to you, your employees or agents, you
shall act as trustee of an express trust for our benefit, hold the same as our
property and deliver the same to us forthwith in kind. We and/or such designee
as we may from time to time appoint, are hereby appointed your attorney-in-fact
to: (1). endorse your name on any remittances received by us where such
endorsement is required to effect collection and (2) to notify the post office
authorities to change the address for delivery of your mail to an address
designated by us, to receive and open all mail addressed to you, and to retain
all mail relating to the Collateral and forward, within two (2) business days of
our receipt thereof, all other mail to you; this power, being coupled with an
interest is irrevocable.
6.4 We may, at all times, have access to, inspect and make extracts from all
your records, files and books of accounts. We may, at any time after default by
you hereunder, remove from your premises all such records, files and books
relating to the Receivables. You agree to promptly furnish us within forty-five
(45) days after the close of each quarter financial statements unaudited and in
such form and detail as we may reasonably require. You also agree to prepare and
furnish to us, within ninety (90) days after the close of your fiscal year,
financial statements which have been audited and certified by an independent
certified public accountant which is acceptable to us. You authorize us to
communicate directly with your independent certified public accountants and
authorize such accountants to discuss your financial condition and statements
directly with us.
6.5 If we determine that the credit standing of a customer has deteriorated
after we have assumed the Credit Risk on a Receivable, you shall, at our
request, exercise such rights as you may have to reclaim or stop the goods in
transit, and you hereby grant us the right to take such steps in your name or
ours.
6.6 You authorize us to disclose such information as we deem appropriate to
persons making credit inquiries about you. You further authorize us to contact
your customers and suppliers, using our name to verify the receivables and other
information in your books and records.
6.7 We will send you a monthly statement of your account which shall constitute
an account stated and be binding upon you with respect to the matters reflected
therein and any matters previously reported to you which are incorporated
therein, except to the extent that written exceptions thereto are served upon us
within thirty (30) days after such statement is rendered.
6.8 You hereby agree to indemnify us for all costs and expenses incurred by us
in connection with Receivables for which credit approval has not been given and
in connection with Receivables which are unpaid at maturity for reasons other
than financial inability. Further, you hereby agree to indemnify us for any
liability for duties, forwarder's fees, storage, shipping charges and other
expense connected with the Receivables and any losses occasioned by claims of
Customers under Receivables.
SECTION 7 Collateral Security
7.1 As collateral security for all of our Obligations and the Obligations of our
patent, affiliates and subsidiaries, you hereby assign and grant to us a
continuing security interest in: (i) all of your presently existing and
hereafter created Receivables, accounts, contract rights, computer software,
programs, stored data, aging schedules, customer lists and general intangibles
(including all patents, trademarks, and copyrights registered in the United
States Copyright or Patent offices, together with the goodwill of the business
in connection with which such trademark may be used and the royalties and other
fees which become due for the use of such patents, trademarks, or copyrights),
including payment intangibles and the proceeds thereof; (ii) all monies,
securities and other property now or hereafter held or received by, or in
transit to us from or for you, whether for safekeeping, pledge, custody,
transmission, collection or otherwise, and all of your deposits and credit
balances in our possession; (iii) all returned, reclaimed or repossessed goods
and the documents evidencing or relating to such goods; (iv) all books, records
and other property at any time evidencing or relating to the Receivables; (v)
all deposit, savings, passbook or like accounts maintained at any bank, savings
and loan or similar institution;(vi) the proceeds of any tax refund due to us by
the state or federal government; (vii) all inventory, machinery ,equipment and
fixtures and all additions and accessions thereto and (viii) all proceeds,
including, without limitation, the proceeds of any insurance policies covering
any of the foregoing (collectively the "Collateral"). Recourse to the collateral
security herein provided shall not be required, and you shall at all times
remain liable for the payment and performance of all of your Obligations upon
demand by us.
7.2 By your execution of this Agreement, you also hereby grant to us the right
and authority to set-off and debit payments and charges you owe us, which we are
otherwise entitled to set-off and debit against the account as specified in this
Agreement directly against your account, without prior notice or consent from
you. We shall in good faith endeavor to provide you written notice of such
set-off or debit within ten (10) days after same; provided however, that we
shall have no liability to you in respect of our failure to give such notice;
and further provided that our failure to give such notice shall have no effect
on our rights to set-off or debit as provided above.
SECTION 8 Events of Default
8.1 The occurrence of any of the following acts or events shall constitute an
Event of Default: (a) if you fail to make payment of any of your Obligations
when due, (b) if you fail to make any remittance required by this Agreement, (c)
if you commit any breach of any of the terms, representations, warranties,
covenants, conditions or provisions of this Agreement, or of any present or
future supplement or amendment hereto or of any other agreement between us, (d)
if you become insolvent or unable to meet your debts as they mature, (e) if you
deliver to us a false financial statement, (f) if you call, or have called by a
third party, a meeting of creditors, (g) if you have commenced by or against you
any bankruptcy proceeding, insolvency, arrangement or similar proceeding, (h) if
you suspend or discontinue doing business for any reason, (i) if a receiver or a
trustee of any kind is appointed for you or any of your property, (j) if any
guarantor of your Obligations shall become insolvent or have commenced by or
against such guarantor any bankruptcy proceeding, insolvency, arrangement or
similar proceeding, (k) if any guaranty of your Obligations is terminated, or
(l) if any change of ownership occurs with respect to more than twenty (20%)
percent of your capital stock.
8.2 Upon the occurrence of an Event of Default, we shall have the right to
terminate this Agreement and all other arrangements existing between us
forthwith and without notice, and all of your Obligations to us shall mature and
become immediately due and payable and we shall have the right to withhold any
further payment to you until all Obligations have been paid in full. In
addition, we shall have all the rights of a secured party under the Uniform
Commercial Code, including, without limitation, the right to take possession of
any collateral in which we have a security interest and to dispose of same at
public or private sale and you will be liable for any deficiency. In the event
of such public or private sale, you agree that seven (7) days shall constitute
reasonable notice. We shall not be required to proceed against any Collateral
but may proceed against you directly. In the event we institute suit against
you, you agree to pay our costs and reasonable attorney's fees.
SECTION 9 Terms and Termination
This Agreement shall continue in full force and effect through June 18, 2002 and
shall be deemed renewed from for periods of one (1) year thereafter unless you
give us notice in writing, by registered or certified mail, not less than thirty
(30) and not more than sixty (60) days prior to the expiration of the original
term of this Agreement (or any renewal term thereof) of your intention to
terminate this Agreement as of the end of such term. We may terminate this
Agreement at any time upon thirty (30) days prior written notice to you. Notice
of termination shall be registered or certified mail; provided however, that you
shall not terminate this Agreement so long as you are indebted or obligated to
us in connection with any other financing arrangements. Notwithstanding such
notice of termination, our respective rights and obligations arising out of
transactions having their inception prior to the specified date of termination
shall not be affected by such termination and all terms, provisions and
conditions hereof, including but not limited to, the security interests herein
above granted to us, shall continue in full force and effect until all
Obligations have been paid in full. All of the representations, warranties and
covenants made herein shall survive the termination of this Agreement.
SECTION 10 Modifications
This Agreement cannot be changed or terminated orally; it constitutes the entire
agreement between us and shall be binding upon respective successors and
assigns, but may not be assigned by you without our prior written consent. No
delay or failure on our part in exercising any right, privilege, or option
hereunder shall operate as a waiver thereof or of any other right, privilege or
option. No waiver whatsoever shall be valid unless in writing, signed by us, and
then only to the extent therein set forth. If any term or provision of this
Agreement is held invalid under any statute, rule or regulation of any
jurisdiction competent to make such a decision, the remaining terms and
provisions shall not be affected, but shall remain in full force and effect. You
further acknowledge that during the course of the term of this Agreement, we
shall make credit determinations with respect to your Receivables and shall
refactor and otherwise assign such Receivables to a Third Party, notwithstanding
any such assignment of refactoring you shall in no way rely on any credit
determination relayed to us, or any action or inaction taken by such Third Party
with respect to the Receivables, and that you shall look only to us as the party
responsible for credit determinations and administration of your Receivables and
this Agreement generally.
SECTION 11 Definitions
11.1 "Approved Receivable" - Any Receivable with respect to which we have issued
a credit approval which has not subsequently been withdrawn.
11.2 "Base Rate" - The rate of interest publicly announced from time to time by
Citibank N. A., New York, New York as its prime or base rate (or equivalent).
11.3 "Collection Date" - The date that we receive any payment on a Receivable.
11.4 "Credit Risk" - The risk that a customer will be financially unable to pay
a Receivable at maturity, provided the customer has received and accepted the
goods and/or services which gave rise to such Receivable, without any Dispute.
11.5 "Dispute" - Any dispute, deduction, claim, offset, defense or counterclaim
of any kind, including, without limitation, any dispute relating to goods or
services already paid for or relating to Receivables other than the Receivable
on which payment is being withheld.
11.6 "Net Receivable" - The gross face amount of a Receivable less the discount
offered by you and taken by us.
11.7 "Non-Approved Receivable" - Any Receivable with respect to which we have
either not issued a credit approval or have subsequently withdrawn a credit
approval as a result of a Dispute or otherwise.
11.8 "Obligations" - All loans, advances, debts, liabilities, obligations,
covenants and duties owing by you to us, direct or indirect, absolute or
contingent, due or to become due, now existing, or hereafter arising, including,
without limitation, invoices for goods or services purchased by you from any
company whose accounts are factored or financed by us and indebtedness arising
under any guaranty made by you or issued by us on your behalf and the debit
balance of your account.
11.9 "Payment Date" - The earlier of the Wednesday of the week following the
week in which we receive payment of a Receivable or 120 days after the due date
of a Receivable, provided that such Receivable remains unpaid solely because of
the Customer's financial inability to pay.
11.10 "Receivables" - All presently existing and hereafter created accounts,
contract rights and general intangibles relating thereto, and other forms of
obligation for the payment of money arising out of the sale, lease or license of
goods or property or rendition of services together will all proceeds thereof,
all guaranties and security therefor, and all goods and rights represented
thereby or arising therefrom including, but not limited to, the right of
stoppage in transit, replevin and reclamation.
SECTION 12 Entire Agreement, Governing Law, and Waiver of Jury
This Agreement embodies our entire agreement as to the subject matter and
supersedes all prior agreements as to the subject matter. In the event a sales
or excise tax is levied by State or Federal authorities, in such form that we
are required to pay a tax on sales represented by any Receivable(s), you agree
to reimburse us for the full amount of taxes payable and agree that all such
amounts may be charged to your account.
This Agreement is deemed made in the State of Florida and shall be governed,
interpreted, and construed in accordance with the laws of the State of Florida.
No modification, amendment, waiver, or discharge of this Agreement shall be
binding upon you unless in writing and signed by us. TRIAL BY JURY IS HEREBY
WAIVED by us in any action, proceeding or counterclaim brought by either of us
against the other on any matters whatsoever arising out of or in any way
connected with this Agreement, or the relations created hereby, whether for
contract, tort, or otherwise, and you hereby consent to the jurisdiction of the
courts of the State of Florida and of any Federal Court in such state for
determination of any dispute as to any such matters. In connection therewith,
you hereby waive personal service of any summons, complaint, or other process,
and agree that service thereof may be made by registered or certified mail
directed to you at your address set forth above or such other address of which
you shall have previously notified you by registered or certified mail. In the
event that we obtain counsel for the purpose of collecting any indebtedness due
us from you or seeking to enforce any right we are entitled to under the
factoring agreement, you agree to pay the reasonable attorneys' fees and
expenses (including all such fees incurred at trial and the appellate levels) of
our counsel. In addition, in the event we are sued by you or any other party for
any claim or cause of action related to or arising under this Agreement or the
factoring relationship, or we are required to defend any suit regarding any duty
we are alleged to have breached, whether in the form of a contract duty, tort or
otherwise, you agree that if we prevail at trial or on appeal you shall be
obligated to reimburse us for all of the reasonable attorneys' fees we incur.
You also agree that you may charge and/or set off against your account all such
fees and expenses as such fees or expenses are incurred. Our books and records
shall be admissible as prima facie evidence of the status of the accounts
between us. This Agreement shall be binding upon and inure to the benefit of
each of us and our respective heirs, executors, administrators, successors and
assigns, but you may not assign this Agreement or any of your rights hereunder
to any person without our prior written consent.
SECTION 13 Acceptance
This proposal is submitted to you unsigned and shall constitute an agreement
between us only when signed by us.
Very truly yours,
E.S. Bankest, LLC
/s/
By:______________________
Title:
The foregoing Factoring Agreement is accepted and agreed this 15 day of June,
2002.
STRATESEC INCORPORATED, a Delaware corporation
/s/ Xxxxx XxXxxxxx
By:
------------------------------------
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Xxxxx X. XxXxxxxx
Title: President
---------------------
Attachments:
Reimbursable Out-of-Pocket Costs Schedule (Schedule A).
Inventory Security Agreement
CORPORATE RESOLUTION
WHEREAS, STRATESEC INCORPORATED, a Delaware corporation (the
"company"), will benefit from the services of a factor in connection with the
handling of its accounts receivable; and
WHEREAS, the Board of the company has considered a proposed Second
Amended and Restated Standard Collection Factoring Agreement with E.S. BANKEST
LLC, a Florida limited liability company, under which E.S. BANKEST LLC would act
as the company's exclusive factor;
NOW, THEREFORE, BE IT AND IT IS HEREBY RESOLVED THAT:
The proposed Second Amended and Restated Standard Collection Factoring
Agreement is approved, and appropriate managers and/or officers of the company
are authorized and directed to execute and deliver a Second Amended and Restated
Standard Collection Factoring Agreement with E.S. BANKEST LLC in the form or
substantially the form outlined herein, and to do and perform all things
contemplated herein on behalf of the company.
The following are the officers/employees each authorized to act on
behalf of the company:
Xxxxx XxXxxxxx, CEO
-----------------------------
Xxxxxxx Xxxxxxxx, CFO
-----------------------------
Name/Title
-----------------------------
Name/Title
-----------------------------
Name/Title
IN WITNESS WHEREOF, the undersigned hereby certifies that the foregoing
Resolution was duly adopted at a meeting of the directors of the company held on
June 15, 2002, at which a quorum was present, and that said Resolution has not
been modified, amended, or rescinded and remains in full force and effect as of
the date set forth below.
STRATESEC INCORPORATED,
a Delaware corporation
/s/ Xxxxx XxXxxxxx
By:_______________________
Xxxxx XxXxxxxx
ATTEST:
/s/ Xxxxxxx Xxxxxxxx
_______________________(SEAL)
Secretary
