EXHIBIT 10.2
FACTORING AGREEMENT
(NOTIFICATION; COLLECTION ONLY)
FOR
BERGAMO ACQUISITION CORP.
THIS FACTORING AGREEMENT (this "AGREEMENT"), made and executed this 21
day of NOVEMBER, 2002, by and between BERGAMO ACQUISITION CORP. (the "CLIENT");
and GE CAPITAL COMMERCIAL SERVICES, INC. (the "FACTOR").
1. SALE AND PURCHASE OF ACCOUNTS RECEIVABLE. Client hereby sells and
assigns to Factor, and Factor hereby purchases from Client, all of Client's
accounts receivable arising from Client's sales of merchandise or rendition of
services to customers including, without limitation, all such sales or services
arising under any trade names or through any division or selling agent of Client
(collectively, the "ACCOUNTS RECEIVABLE" and individually, an "ACCOUNT
RECEIVABLE"). The assignment of Accounts Receivable to Factor vests in Factor
all of Client's rights, securities, guaranties and liens with respect to each
Account Receivable, including all rights of stoppage in transit, replevin,
reclamation, and all claims of lien filed by Client or held by Clients on
personal property, and all rights and interest in the merchandise sold, and all
of Client's defenses and rights of offset with respect to any payments received
by Factor on Accounts Receivable, but Factor shall not be obligated to, and
shall not be liable for, exercising or refusing to exercise any rights granted
to Factor hereby.
2. SINGLE ORDER CREDIT APPROVALS. Except as set forth in Section 3
below, all orders from customers including the amount and terms of each proposed
sale or service to such customers shall be submitted by Client to Factor for
prior written approval (a "SINGLE ORDER APPROVAL") in advance of such sale or
service, which Single Order Approval may be granted or withheld at Factor's sole
discretion. Each Single Order Approval is subject to withdrawal either orally or
in writing at any time prior to delivery of merchandise or rendition of
services, and shall be deemed no longer effective if Client fails to deliver
such merchandise or render such services within thirty (30) days after the date
specified for such delivery or rendition on the terms of sale submitted to
Factor for its approval, or within thirty (30) days from the date of Factor's
approval if no delivery or rendition date has been specified. Each Account
Receivable first approved by Factor in writing as to credit risk and terms of
sale shall be herein referenced to as a "FACTOR RISK ACCOUNT RECEIVABLE". Any
Account Receivable not approved by Factor as to credit risk or terms of sale
shall be herein referred to as a "CLIENT RISK ACCOUNT RECEIVABLE". All requests
for Single Order Approvals must be submitted to Factor via Factor's Internet
customer service web site (XXXXX.xxx). Factor will charge a two dollar ($2.00)
manual processing fee for each Single Order Approval request submitted via other
means (e.g., telephone or fax).
3. CREDIT LINE APPROVALS. Submission of orders for Factor's prior
written approval shall not be required with regard to a sale made by Client in
compliance with any customer credit line which may from time to time be issued
in writing to Client by Factor in its sole discretion (a "CREDIT LINE"),
PROVIDED that shipments are made prior to the expiration date of the Credit Line
approval. Any customer Credit Line issued by Factor may be amended or withdrawn
by Factor in whole or in part at any time and for any reason without advance
notice, but such withdrawal shall not reduce or negate Factor's liability with
respect to Accounts Receivable for goods delivered or services rendered prior to
withdrawal. The amount of all Accounts Receivable of each customer shall, in the
order in which they have arisen, be treated as Factor Risk Accounts Receivable
up to the limit of the Credit Line in effect for such customer from time to
time. So long as Factor has not withdrawn a Credit Line as to a particular
customer, and so long as no Insolvency Event (defined in Section 10 below) has
occurred with respect to such customer, when Factor (a) receives payment in
collected funds from such customer, or (b) issues a credit to such customer, in
either case with respect to existing Factor Risk Accounts Receivable, then
additional Accounts Receivable which were not originally treated as Factor Risk
Accounts Receivable because they were in excess of the customer Credit Line
shall become Factor Risk Accounts Receivable in the order in which they were
created, up to the maximum amount of such customer Credit Line. Factor's Credit
Line with respect to any particular customer shall be automatically suspended if
the aggregate Client Risk Accounts Receivable owing from such customer exceed
fifty percent (50%) of Factor's established Credit Line, and all payments
received from such customer after such suspension shall be first applied to any
outstanding Factor Risk Accounts Receivable. The decision to grant or withdraw
any Single Order Approval or Credit Line shall at all times be in Factor's sole
discretion, and Factor shall not be liable to Client in any respect for damages
or otherwise because of any such credit decisions.
4. PURCHASE PRICE. The purchase price of each Account Receivable (the
"PURCHASE PRICE") is the gross amount of the Account Receivable, less any
discounts made available or extended to the customer (which shall be computed on
the shortest or longest terms, in Factor's discretion, where optional terms are
given), returns and allowances of any nature, and Factor's commission. After
purchase of an Account Receivable by Factor, a discount, credit, unidentifiable
payment or allowance may be claimed solely by the customer, and if not so
claimed, such discount, credit, payment or allowance shall, to the extent
permissible under applicable law, be the property of Factor.
5. CLIENT RESERVE ACCOUNT. (a) Factor shall establish on its books in
Client's name a reserve account (the "RESERVE ACCOUNT") and an account that
reflects at any time the aggregate outstanding unpaid Accounts Receivable that
have been purchased by Factor (the "UNPAID RECEIVABLE ACCOUNT"). Upon the
purchase and sale of each Account Receivable Factor shall credit both the
Reserve Account and the Unpaid Receivables Account with the Purchase Price of
such Account Receivable. Factor shall debit the Reserve Account with any and all
disbursements (including advances) made to Client or on its behalf, as well as
all credits, discounts available to Client's customers, factoring charges,
interest, bank wire transfer fees and any other amounts chargeable to Client
under this Agreement or any supplement hereto or any other agreement between
Client and Factor. Factor shall reduce the balance of the Unpaid Receivables
Account (i) upon actual collection or, with respect to past due Factor Risk
Accounts Receivable, deemed collection of the Purchase Price of each Account
Receivable in accordance with the provisions of Section 10 of this Agreement, or
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(ii) if applicable, upon the charge back by Factor of the Account Receivable to
Client.
(b) Client shall pay to Factor a one-time set-up and integration fee of
One Thousand Dollars ($1,000) for setting the Client up in Factor's system
(including the establishment of the Reserve Account). Such set-up and
integration fee shall also cover the initial addition of Client's customer base
to Factor's computer system and the further introduction of any new customers
for a period of six (6) months from the Effective Date of this Agreement. If
Client requests that Factor add additional customers to the system after
expiration of the initial six (6) month period, Client shall pay to Factor a
Twenty Five Dollar ($25) fee for each new customer; PROVIDED, that if such new
customer is already in Factor's system as a customer of another client of
Factor, the set-up fee shall be reduced to Fifteen Dollars ($15). Factor shall
furnish Client with advices of all credits and debits to the Reserve Account.
Factor shall furnish Client with a monthly statement of its Reserve Account.
Each such statement rendered by Factor shall be deemed correct and conclusively
binding unless Factor is notified by Client in writing by certified mail, return
receipt requested, within thirty (30) days after the date of the rendering of
each statement. In the event a timely objection is properly made, only the items
expressly objected to by Client in writing shall be deemed by Factor to be
disputed.
6. REMITTANCE OF FUNDS TO CLIENT. At least once each week, and more
frequently if requested by Client, Factor shall disburse to Client the amount
(if any) by which the balance of the Reserve Account exceeds the balance of the
Unpaid Receivables Account. All Obligations (as defined in Section 8 below) may
be charged to the Reserve Account when due. All Obligations, including, without
limitation, Ledger Debt (as defined below) and any debit balance in the Reserve
Account, are repayable by Client on demand and may be charged to the Reserve
Account when due. For purposes of this Agreement, "LEDGER DEBT" means any amount
owing by Client to Factor or any of its illusions for merchandise or services
purchased from any other concern factored or financed by Factor.
7. WARRANTIES AND REPRESENTATIONS. Client warrants and represents that
(a) Client is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation or formation and agrees that it
shall not change such state of incorporation without giving Factor sixty (60)
days prior written notice of such change, (b) Client is duly qualified to do
business and in good standing in each other jurisdiction where its ownership of
property or the conduct of its business requires such qualification, except
where the failure to be so qualified could not reasonably be expected to have a
material adverse effect on Client's business or assets, (c) Client operates its
business in material compliance with all applicable local, state and federal
laws, including without limitation the Fair Labor Standards Act and all
applicable tax withholding laws and regulations, and (d) each Accounts
Receivable: (i) is genuine and valid and represents a completed delivery or
performance in fulfillment in every respect of the terms, conditions and
specification of a bona fide, uncancelled and unexpired sale or service in the
ordinary course of business to a customer which is not affiliated with Client in
full compliance with specifications of such customer; (ii) is enforceable for
the full amount thereof and shall at all time submitted to Factor be subject to
no dispute or claim by the customer in whole or in part as to price, terms,
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quality, quantity, delay in shipment, offsets, counterclaims, contra accounts or
any other defense of any other kind and character (sometimes referred to herein,
individually or collectively, as a "DISPUTE"), real or claimed which are not
shown on the face of the invoice thereof; (iii) is free of all security
interests, liens and encumbrances except for the lien granted to Factor under
this Agreement; (iv) does not represent a delivery of merchandise upon
"consignment," "guaranteed sale," "sale or return," "payment on reorder" or
similar terms; (v) is payable in United States Dollars and has been invoiced to
the customer by an invoice that bears notice of the sale and assignment to
Factor in compliance with the terms of this Agreement; and (vi) does not
represent a "pack, xxxx and hold" transaction unless Client has complied with
Factor's requirements in respect thereof. Client further represents and warrants
that it shall be the absolute owner of all merchandise and other property
involved at the time of delivery or performance.
8. COLLATERAL. Client and Factor intend for each sale of an Account
Receivable to Factor pursuant to this Agreement to be a true sale of such
Account Receivable and not as a loan from Factor to Client. In the event,
however, that the sale of the Account Receivable contemplated herein is for any
reason not deemed to be a true sale thereof despite the intentions of Client and
Factor, and, as security for all obligations, liabilities and indebtedness of
Client to Factor, now existing or hereafter incurred, direct or indirect,
absolute or contingent, whether created under this Agreement, any supplement
hereto or any other agreement between Client and Factor or otherwise (all of the
foregoing being herein called the "OBLIGATIONS"), Client grants Factor a
security interest in all of Client's present and future: (a) accounts (including
without limitation the Accounts Receivable (b) Related Security as defined
below) with respect to each Account Receivable; (c) all sums standing to the
credit of Client with Factor; (d) any Property of Client in Factor's possession;
(e) all proceeds of the foregoing; and (f) any other property of Client in which
Factor shall be granted a lien or security interest pursuant to any supplement
or amendment to this Agreement or any other agreement now existing or hereafter
executed by Client with or in favor of Factor (collectively, the "COLLATERAL").
Recourse to security shall not at any time be required and Client shall at all
times remain liable for the repayment upon demand of all obligations. During the
terms of this Agreement, Client shall not sell or assign, negotiate, pledge or
grant any security interest in any of the Collateral to anyone other than Factor
without Factor's prior written consent. The terms "accounts", "instruments",
"documents", "chattel paper", "deposit accounts" and "general intangibles", as
used herein, shall have the respective meanings ascribed to such terms in the
Uniform Commercial Code as in effect in the state whose laws govern the
interpretation and enforcement of this Agreement as set forth in Section 28
hereof, as it may be amended or otherwise modified from time to time (the
"UCC"). Recourse to security shall not at any time be required and Client shall
at all times remain liable for the repayment upon demand of all Obligations.
During the term of this Agreement, Client shall sell or assign, negotiate,
pledge or grant any security interest in any of the Collateral or any of its
inventory and proceeds thereof to anyone other than Factor, without Factor's
prior written consent, except for sales of inventory in the ordinary course of
business. "RELATED SECURITY" shall mean, with respect to any Accounts
Receivable, the following: (i) all security interests or liens and property
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subject thereto from time to time purporting to secure payment of such Account
Receivable, whether pursuant to the contract related to such Account Receivable
or otherwise, including all rights of stoppage in transit, replevin,
reclamation, supporting obligations and letter of credit rights (as such terms
are defined in the UCC), and all claims of lien filed or held by Client on
personal property; (ii) all rights to any goods whose sale gave rise to such
Account Receivable, including returned or repossessed goods; (iii) all
instruments, documents, chattel paper and general intangibles (each as defined
in the UCC) arising from, related to or evidencing such Account Receivable;
(iii) all UCC financing statements covering any collateral securing payment of
such Account Receivable; (iv) all guaranties and other agreements or
arrangements of whatever character from time to time supporting or securing
payment of such Account Receivable whether pursuant to the contract related to
such Account Receivable or otherwise; (v) all records of any nature evidencing
or related to the Accounts Receivable, including contracts, invoices, charges
slips, credit memoranda, notes and other instruments and other documents, books,
records and other information (including, without limitation, computer data);
and (vi) all proceeds and amounts received or receivable arising from any of the
foregoing.
9. INVOICING. All Invoices for merchandise sold or services rendered
shall be prepared by Client and, regardless of whether they are transmitted to
customers via hard copy or electronically, shall bear a notice that they have
been assigned to, are owned by and are payable directly and only to Factor.
Client shall furnish Factor with copies of all invoices within twenty-one (21)
days from the earlier of the invoice date or shipping date, accompanied by duly
executed confirmatory assignment schedules, original shipping or delivery
receipts, and such other information or documents as Factor in its discretion
may request from time to time. If Client fails to provide Factor with copies of
such invoices (or the equivalent) or such proof of shipment or delivery when
requested by Factor for any Factor Risk Account Receivable, each Factor Risk
Account Receivable shall automatically convert to a Client Risk Account
Receivable and immediately upon such conversion, regardless of any prior credit
approval, Factor shall have no credit risk with respect to such Account
Receivable. Each invoice shall bear the terms of sale and no change from the
original terms of sale shall be made without Factor's prior written consent.
10. PAYMENT OF ACCOUNTS RECEIVABLE. Factor shall credit to Client all
payments by customers of Accounts Receivable and other payments on behalf of
Client promptly after crediting such payment to the customer's account. No
check, draft or other instrument received by Factor shall constitute final
payment unless and until such check, draft or other instrument shall have been
actually collected by Factor in immediately available funds. Client shall pay to
Factor a Fifteen Dollar ($15) fee for each check received by Factor as payment
(in whole or in part) against Client Risk Accounts Receivable that is returned
because of insufficient funds. The amount of the Purchase Price of any Factor
Risk Account Receivable which remains unpaid shall be credited to Client as of
the earlier of the following dates: (a) the longest maturity date of such Factor
Risk Account Receivable if any proceeding or petition is instituted or filed by
or against the customer for relief under any federal or state bankruptcy or
insolvency law, code or act, or if a receiver or trustee is appointed for the
customer (each an "INSOLVENCY EVENT"); or (b) as of the one hundred twentieth
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(120th) day following its longest maturity date if such Factor Risk Account
Receivable remains unpaid as of such date without the occurrence of an
insolvency Event; PROVIDED, HOWEVER, that Factor shall not credit the Purchase
Price of any unpaid Factor Risk Accounts if (i) Client has breached any of its
representations and warranties with respect to such unpaid Factor Risk Accounts
Receivable as set forth in Section 7(d), or (ii) Factor determines that any
Factor Risk Account Receivable remains unpaid for any reason other than the
customer's financial inability to pay. In either case, such Account Receivable
shall be converted to a Client Risk Account Receivable.
11. REMITTANCES. Without limiting Client's obligations under Section 9
to provide customers with notice of assignment, Client shall hold in trust for
Factor all remittances received by Client with respect to all of its Accounts
Receivable, and Client shall immediately deliver to Factor the identical checks,
drafts, monies or other forms of payment received. Factor may endorse Client's
name on any check, draft or other form of remittance received, where such
endorsement is required to effect collection and Client hereby grants Factor an
irrevocable power of attorney to do so.
12. CUSTOMER DISPUTES AND CLAIMS. Client agrees to notify Factor
immediately of all returns and allowances and of all Disputes made by customers
and to adjust all Disputes at its own expense, issuing credit memoranda
promptly. Factor's practice is to allow a reasonable time for the settlement of
Disputes between Client and Client's customers without waiving Factor's right at
any time to adjust any Disputes on a Factor Risk Account Receivable directly
with the customer and to charge back to the Reserve Account at any time the full
uncollected amount of the Account Receivable involved. Factor may at any time
charge the Reserve Account the full uncollected amount of: (a) any customer
deduction or offset; (b) any Factor Risk Account Receivable which is not paid in
full when dues for any reason (real or alleged) other than the customer's
financial inability to pay; (c) any Account Receivable with respect to which
Client breaches any of the warranties or representations set forth in this
Agreement; (d) any anticipation deducted by a customer on any Account
Receivable; (e) any Client Risk Account Receivable which is not paid in full
when due for any reason; and (f) payments received by Factor on Client Risk
Account Receivable which Factor is required at any time or for any reason to
turnover or return (including, without limitation, payments made by Factor in
connection with preference claims asserted in a bankruptcy or other insolvency
proceeding). Any such charge back shall not be deemed to constitute a
reassignment of the Account Receivable, and Factor shall retain a security
interest therein as security for all Obligations. In the event that Factor is
required to make any payment of the type described in clause (f) above after the
termination if this Agreement, Client shall, on demand, reimburse Factor the
full amount of any such payment. Such reimbursement obligation shall survive the
termination of this Agreement.
13. COLLECTION OF ACCOUNTS; RETURNED GOODS. As owner of the Accounts
Receivable, Factor shall have the right to (a) bring suit, or otherwise enforce
collection, of the Account Receivable in the name of Client or Factor, (b)
modify the terms of payment, settle, compromise or release, in whole or in part,
any amounts owing, on terms Factor may deem advisable, and (c) issue credits in
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the name of Client or Factor. Should any goods be returned or rejected by
Client's customers or otherwise recovered by Client, Client shall segregate and
hold such goods in trust for Factor, but at Client's sole risk and expense.
Client shall also promptly notify Factor and, at Factor's request, will deliver
such goods to Factor, pay Factor the invoice price thereof, or sell such goods
at Client's expense for the purpose of paying any outstanding Obligations. Any
payments made to either Client or Factor from, or credits issued to, a customer
shall be applied first to the Factor Risk Accounts Receivable owing by such
customer, irrespective of instructions of the customer or the invoice dates of
such Factor Risk Accounts Receivable or the manner in which payment is made, and
Factor shall have recourse to Client to the extent any such payment is made
directly to client.
14. COMMISSIONS. (a) Client shall pay Factor a commission equal to nine
tenths of one percent (0.90%) of the gross amount of all Accounts Receivable,
but in no event less than (i) $5.00 for each manually transmitted invoice or
(ii) $2.00 for each electronically transmitted invoice; PROVIDED, HOWEVER, that
an additional surcharge shall be charged on the gross amount of Accounts
Receivable due from each customer identified on SCHEDULE A attached to this
Agreement. All commissions payable hereunder on Accounts Receivable are due and
charged to the Reserve Account upon Factor's purchase of such Accounts
Receivable. The foregoing commission is based upon (i) Client's maximum selling
terms of no longer than sixty (60) days and (ii) Client's Agreement to,
beginning no later than the ninetieth (90th) day after the Effective Date of
this Agreement, transmit electronically all Accounts Receivable and conduct all
inquiries concerning, and retrieval of, customer credit information and
approvals (collectively, "TRANSACTION DATA") via XXXXX.xxx. Accordingly, (1) on
sales for which extended or additional terms are granted, the commissions shall
be increased by twenty five basis points (0.25%) for each thirty (30) days, or
portion thereof, by which Client's selling terms are extended and (2) if after
the expiration of such ninety (90) day period the Client continues to transmit
any Transaction Data by other than the electronic means described above, then
the otherwise applicable commission rate shall be increased by five basis points
(0.05%).
(b) The minimum commissions (hereafter "MINIMUM COMMISSIONS") payable
by Client under this Agreement for the period from the date hereof through the
first Anniversary Date to the next Anniversary Date, shall be Fifty Thousand
Dollars ($50,000). Such Minimum Commissions shall accrue monthly and be
reconciled quarterly. To the extent of any deficiency at the end of any month
such deficiency shall be immediately due and payable and chargeable to the
Reserve Account. If, as of the end of quarter, Client has paid commissions in
excess of the Minimum Commissions ($12,000) for such quarter then ended
(collectively, "EXCESS COMMISSIONS"), and provided that Client is not in default
of this Agreement, Factor shall credit to the Reserve Account any amounts (up to
a maximum amount equal to the Excess Commissions) which had been previously
charged to the Reserve Account to meet any monthly minimum during such quarter.
If this Agreement is terminated for any reason prior to an Anniversary Date, all
annual Minimum Commissions shall be due and payable as of such termination date.
An "ANNIVERSARY DATE" means the date one year from the Effective Date of this
Agreement and the same day in each year thereafter.
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15. INTEREST. Client does not intend to borrow, and Factor does not
intend to loan or advance, any funds under the terms of this Agreement. lf,
however, Factor is deem to have "FUNDS EMPLOYED" (meaning that the balance of
the Unpaid Receivables Account exceeds the balance of the Reserve Account), then
Client shall pay interest upon the average daily Funds Employed at the close of
business each day at a per annum rate equal to (a) one percent (1%) over the
Prime Rate or (b) five percent (5%), whichever is greater; PROVIDED, HOWEVER,
that if an Event of Default (defined below) has occurred and is continuing, such
interest rate shall be increased by three percent (3%) until such Event of
Default is cured or waived by Factor. The "PRIME RATE" shall be defined as the
per annum prime interest rate which normally is published in the "MONEY RATES"
section of THE WALL STREET JOURNAL (or if such rate ceases to be published, as
quoted from such other generally available and recognizable source as Factor may
select). Interest shall be calculated on a daily basis (computed on the actual
number of days elapsed over a year of three hundred sixty (360) days) and shall
be charged to the Reserve Account as of the last day of each month. For the
purpose of computing interest payable by Client under this Agreement and any
supplement hereto, all customer checks and other payments received by Factor
shall be deemed applied to the Obligations three (3) business days after being
credited to Client consistent with the provisions of Section 10 of this
Agreement.
16. FINANCIAL STATEMENTS AND INFORMATION; INSPECTIONS. Client shall
furnish Factor with annual financial statements prepared by an independent
accountant acceptable to Factor and also furnish on a timely basis interim
financial statements and other financial information upon Factor's request
Client shall permit any representative of Factor to visit and inspect any of the
properties of Client, to examine all books of amounts, records, reports and
other papers, to make copies and extracts therefrom, and to discuss the affairs,
finances and amounts of Client with its officers, employees, independent public
accountants, creditors and depository institutions, all at such times as Factor
deems reasonably necessary.
17. FINANCIAL CONDITION. Client warrants that that there has been no
material adverse change in Client's financial condition as reflected in the
financial statements delivered to Factor since the date thereof nor do such
statements fail to disclose any fact or facts which might materially adversely
affect Client's financial condition; and there is no litigation pending or
threatened, which taken in the aggregate if adversely determined, can reasonably
be expected to have a material adverse affect on Client's financial condition.
18. TERM OF AGREEMENT; TERMINATION. This Agreement shall take effect on
the date of acceptance by Factor (the "EFFECTIVE DATE") and shall remain in full
force and effect until the first Anniversary Date unless terminated earlier by
Factor (a) upon sixty (60) days written notice, or (b) without notice upon the
occurrence of an Event of Default (defined below). This Agreement shall be
automatically renewed each year on the Anniversary Date for an additional one
year term unless Client or Factor provides the other written notice of
non-renewal of this Agreement no later than thirty (30) days prior to the
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applicable Anniversary Date. In the event that this Agreement is terminated by
Client for any reason or by Factor based on the occurrence of an Event of
Default prior to an Anniversary Date, Client shall immediately pay Factor the
unpaid portion of the Minimum Commissions which would have been payable to
Factor pursuant to Section 14(b) of this Agreement through the next Anniversary
Date.
19. EVENTS OF DEFAULT; REMEDIES. Factor may terminate this Agreement
without notice if any of the following events (each, an "EVENT OF DEFAULT")
shall occur: (a) Client shall default in the payment of any of the Obligations
on the due date thereof (whether due at stated maturity, on demand, upon
acceleration or otherwise), (b) any representation or warranty made by Client to
Factor shall prove incorrect or misleading in any material respect when made or
furnished; (c) Client shall breach any covenant or agreement contained in this
Agreement or any supplement hereto or any other agreement between Client and
Factor; (d) Client or any guarantor of the Obligations shall file or have filed
against it a petition, answer or consent seeking relief under Title 11 of the
United States Bankruptcy Code, as now constituted or hereafter amended, or any
other applicable Federal or also bankruptcy law or other similar law, or a
receiver, liquidator, assignee, trustee or similar official shall be appointed
for Client or any guarantor of the Obligations or any substantial part of its or
his property; (e) Client fails, closes, suspends, or goes out of business; or
(f) there is a change (by death or otherwise) in Client's principal stockholders
or owners. At any time after the occurrence of an Event of Default that is not
waived by Factor, Factor shall have, in addition to all of the rights and
remedies of a secured party under Article 9 of the UCC and other applicable law,
the right to enter any of Client's premises and copy any and all books and
records that may pertain to the Accounts Receivable or any other collateral
hereunder. Client hereby appoints Factor or such persons as Factor designates as
Client's attorney-in-fact to do all acts and things necessary, in Factor's
determination after an Event of Default that is not waived by Factor, to fulfill
Client's obligations under this Agreement.
20. EFFECT OF TERMINATION. Upon the effective date of termination, all
Obligations shall become immediately due and payable without further notice or
demand irrespective of any maturity dates established prior thereto. However, no
such termination shall release or abrogate any security interest held by Factor
in any collateral of Client until all Obligations are paid in full. In the event
that Factor shall cease to act as factor for Client, Factor may hold any balance
remaining to Client's credit in the Reserve Account as security for the
Obligations until Client has furnished Factor with an indemnity satisfactory to
cover all Obligations. Factor shall allow Client to continue to electronically
access account data for a period of ninety (90) days after termination. If
Client requires extended access beyond such ninety (90) day period. Client shall
pay an access fee of $350 per month, payable on the first day of each month.
21. COLLECTION COSTS. Client shall pay or reimburse Factor on demand
for all costs and expenses, including the reasonable fees and expenses of all
legal counsel (including allocated costs of staff counsel) and auditors (whether
employed directly or retained by Factor), incurred by Factor to obtain or
enforce payment of any Obligations or in the prosecution or defense of any
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action or proceeding concerning any matter arising out of or related to this
Agreement or the factoring of the Accounts Receivable by Factor (other than
Factor Risk Accounts Receivable that remain unpaid due to the customer's
financial inability to pay).
22. LIEN PERFECTION. Client irrevocably authorizes Factor at any time
and from time to time to file in any jurisdiction all financing statements
thereto provided for by the UCC. Client grants Factor an irrevocable power of
attorney to execute and deliver such other documents or instruments which may be
required by law or which Factor may request to perfect its first priority
security interest hereunder. Client shall cooperate with Factor in the filing,
recording or renewal thereof (and shall if requested, execute such documents as
may be necessary in such regard), and to pay all out-of-pocket search, filing
and recording fees and expenses related thereto, and, to the extent required or
permitted by applicable law, Client authorizes Factor to sign Client's name
thereon. Client shall execute, acknowledge and/or deliver such other instruments
or assurances as Factor may reasonably request to effectuate the purposes of
this Agreement. Client also ratifies any previous authorization for Factor to
have filed in any jurisdiction any such financial statements or amendments
thereto if filed before the date of this Agreement. Client covenants and agrees
with Factor that; (a) without giving Factor at least thirty (30) days prior
written notice, Client shaII not change its name, its principal place of
business or, if more than one, its chief executive office, or its mailing
address or organizational identification number if it has one, (b) if Client
does not have an organizational identification number and later obtains one,
Client shall forthwith notify Factor of such organizational identification
number, and (c) Client shall not change its state of incorporation or
organization or its type of organization, jurisdiction of organization or other
legal structure.
23. NOTICES. Any notices, demands, consents, or other writings or
communications permitted or required by this Agreement shall be given by
facsimile transmitter, overnight air courier or certified mail, return receipt
requested, addressed to the party to be notified as follows:
(a) If to Factor: GE Capital Commercial Services, lnc.
000 Xxxxx Xxxxx Xxxx.
Xxxxxxxx, XX 00000
Facsimile No.: 000-000-0000
(b) If to Client: Bergamo Acquisition Corp,
00000 Xxxxxxxxxx Xxxx
Xxx Xxxxxxx, XX 00000
Facsimile No.: 000-000-0000
or to such other address as each party may designate for itself by notice given
in accordance with this Section 23. Any written notice or demand that is not
sent in conformity with the provisions hereof shall nevertheless be effective on
the date that such notice is actually received by the noticed party.
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24. CONFIDENTIALITY. Except as otherwise required by law, Client shall
treat as confidential both the form and substance of all information received
from Factor with respect to Client's Reserve Account, all credit approval
processes, accounting procedures and invoice processing procedures, together
with all reports, statements, fee schedules or notices related to any of the
foregoing, whether provided to in writing or through XXXXX.xxx. No such
information may be disclosed by the Client publicly or privately except to those
individuals who are Client's officers, employees or advisors who have a need to
know as a result of being involved in Client's factoring facility and then only
on the condition that such matters may not be further disclosed. No one shall,
except as required by law, use the name of, or refer to, GE Capital Commercial
Services, Inc., or any of its affiliates in any correspondence, press releases,
discussions, advertisement or disclosure made in connection with this Agreement
and the transactions hereunder without the prior consent of Factor. Client's
access to and use of XXXXX.xxx shall be subject to the Terms of use published on
such website, and Client agrees in advance to be bound by such terms of use and
any additional terms and conditions that GECCS in its sole discretion may deem
to be appropriate in connection with the ongoing use of the XXXXX.xxx service.
25. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, FACTOR AND CLIENT HEREBY WAIVE, IRREVOCABLY AND UNCONDITIONALLY, TRIAL BY
JURY IN ANY ACTION BROUGHT ON, UNDER OR BY VIRTUE OF OR RELATING IN ANY WAY TO
THIS AGREEMENT OR ANY SUPPLEMENT HERETO OR ANY OF THE OTHER DOCUMENTS EXECUTED
IN CONNECTION HEREWITH, OR ANY CLAIM, DEFENSE, RIGHT OF SETOFF OR OTHER ACTION
PERTAINING HERETO, OR TO ANY OF THE FOREGOING.
26. DOCUMENTATION; PAYMENT OF FEES. (a) Client agrees to pay Factor a
$1,000 documentation fee for the preparation, negotiation, execution, delivery,
performance and enforcement of this Agreement and any ancillary documents that
comprise Client's initial document package (collectively, the "FACTORING
DOCUMENTS"). Should Client request or seek any amendment, waiver, consent or
other modification of this Agreement or any other Factoring Document, Client
shall pay to Factor an additional documentation fee for the preparation of any
such amendment, waiver, consent or modification. The amount of such fee shall be
determined by Factor in relation to the scope of the amendment, waiver, consent
or modification requested. If Factor, in its sole discretion, determines that
the assistance of outside counsel is required with respect to any of the
foregoing, Client shall, in lieu of the documentation fee otherwise payable to
Factor, reimburse Factor for all reasonable fees and expenses of such outside
counsel.
(b) The initial integration and documentation fees for this Agreement
shall be due and payable on the Effective Date. All other fees, including any
special fees described the fees set forth in SCHEDULE A attached hereto or any
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fees for additional services requested by Client as set forth on Factor's
Service Fee Schedule, shall, unless otherwise indicated, be due and payable on
demand. Client authorizes Factor to collect any such fees on their respective
due dates by charging Client's Reserve Account.
27. ELECTRONIC DATE TRANSMISSION. Factor may authorize Client to send
to Factor or receive from Factor assignments, invoices, credit memoranda, credit
approval requests, credit approvals, and other reports to be delivered to or
transmitted by Factor under this Agreement by electronic means (each, an
"ELECTRONIC TRANSMISSION"). Any documents authorized by Factor to be sent by
Electronic Transmission shall be deemed (a) to have been transmitted by a person
duly authorized to do so, and (b) to have been received by the person to whom
such documents were intended on the actual date of receipt of such documents,
unless such day is not a business day, in which event such documents shall be
deemed to have been received on the first business day following actual receipt.
Each party may rely upon, and assume the authenticity of, any signatures
contained is any documents Factor authorizes to be transmitted by Electronic
Transmission, and such signatures shall have the same effect and weight as
original signatures and shall be sufficient to satisfy the requirements of the
UCC or any applicable statute, rule of law, or rule of evidence. Electronic
Transmissions which are not readily capable of bearing either a signature or a
reproduction of a signature (e.g., e-mail transmissions) shall be deemed signed,
for purposes of the UCC and all other rules of law and evidence, if they contain
the name or an abbreviation of the name of the party sending the Electronic
Transmission, it being agreed that such name or abbreviation serves as a symbol
adopted by the sender with the intent to authenticate such writing. On the
request of either party, the other party shall immediately confirm the receipt
of any documents transmitted by Electronic Transmission. The sender of any
documents transmitted by Electronic Transmission shall maintain backup paper
documents for such documents until at least the third anniversary of the date of
the termination of this Agreement and shall on request of the receiving party,
furnish such backup paper documents within two business days of the receipt of
the request therefor; PROVIDED, HOWEVER, that the absence of any such backup
documentation with respect to the assignment of Accounts Receivable by Client
shall not affect the validity of any assignment of Accounts Receivable
transmitted to Factor, whether by Electronic Transmission or otherwise. Each
party may rely upon documents authorized by Factor to be sent by Electronic
Transmission to the same extent as if original documents had been personally
delivered.
28. MISCELLANEOUS. This Agreement, together with any supplement hereto,
contains the entire agreement between the parties and cannot be modified or
amended orally. This Agreement is intended solely for the benefit of Factor and
Client, and no other person or party (including any guarantor) is intended to be
benefited hereby in any way. The captions in this Agreement are for convenience
of reference only and shall not define or limit any of the terms or provisions
hereof. Failure of Factor to exercise any rights granted to it hereunder upon
any breach or default by Client shall not be deemed a waiver thereof in the
event of further breaches or defaults. The remedies of Factor hereunder shall be
deemed to be cumulative and not exclusive. This Agreement shall be binding upon,
and inure to the benefit of, the parties hereto and their respective successors
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and assigns. This Agreement is made and accepted and shall be construed,
interpreted and enforced in accordance with the laws of the State of California
without regard to the conflict of laws principles, and Client irrevocably
consents and submits to the jurisdiction of state courts of, and federal court
in, the State of California for the purpose of any suit, action or proceeding
relating hereto.
Intending to be legally bound, the parties hereto have duly executed this
Agreement on the day and year first above written.
Bergamo Acquisition Corp.
By: /s/ Xxxxxxx Xxxxxx
------------------
President
Accepted in Glendale, Ca.
GE Capital Commercial Services
By: /s/ Xxxx Xxxx
-------------
Title: SVP
Date: 11/26/02
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