EX-10.17 5 fs42018ex10-17_stellaracq3.htm FACTORING AGREEMENT FACTORING AGREEMENT
Exhibit 10.17
This Factoring Agreement (the “Agreement”) is made as of June 14, 2016, by and between CSNK Working Capital Finance Corp. d/b/a Bay View Funding (“Buyer”) having a place of business at 0000 Xxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxx Xxxxx, XX 00000-0000, and Phunware, Inc., a Delaware corporation (“Seller”) having its principal place of business and chief executive office at 0000 Xxxxx Xxxxx Xxxx, Xxxxx 000X, Xxxxxx, XX 00000 with an additional address at 0000 Xxxxx Xxxxx Xxxx., Xxxxx 000X, Xxxxxx, XX 00000; 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000.
Section 1.DEFINITIONS. When used herein, the following terms shall have the following meanings:
1.1 | “Account Balance” shall mean, on any given day, the gross amount of all Purchased Receivables unpaid on that day. |
1.2 | “Account Debtor” shall have the meaning set forth in the Uniform Commercial Code as enacted in the State of California (“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. |
1.3 | “ACH” shall mean the Automated Clearing House. |
1.4 | “ACH Fee” shall mean $7.00 for all ACH charges incurred by Buyer. |
1.5 | “Adjustments” shall mean all discounts, allowances, returns, disputes, counterclaims, offsets, defenses, rights of recoupment, rights of return, warranty claims, or short payments, asserted by or on behalf of any Account Debtor with respect to any Purchased Receivable. |
1.6 | “Advance” shall have that meaning as set forth in Section 2.1 herein. |
1.7 | “Advance Percentage” shall be eighty percent (80%). |
1.8 | “Avoidance Claim” shall mean the assertion, complaint, judgment or otherwise against Buyer, that any payment Buyer received with respect to any Receivable, whether the amount related thereto was paid by the Account Debtor, the Seller, or on behalf of Seller or for its benefit, or any lien granted to Buyer is avoidable (or recoverable from Buyer) under the United States Bankruptcy Code; any other debtor relief statute, including but not limited to, preference claims, fraudulent transfer claims, or through receivership, assignment for the benefit of creditors or any equivalent recovery law, rule or regulation which relates to the adjustment of debtor and creditor relations. |
1.9 | “Collections” shall mean all good funds received by Buyer from or on behalf of an Account Debtor with respect to Purchased Receivables. |
1.10 | “Dispute” shall mean a dispute, claim, or defense of any kind whatsoever, whether valid or invalid, asserted by an Account Debtor, that may reduce the amount collectible by Buyer from art Account Debtor. Buyer is under no obligation to investigate the merits of any Dispute. |
1.11 | “Early Termination Fee” shall have that meaning as set forth in Section 10 herein. |
1.12 | “Event of Default” shall have that meaning as set forth in Section 9 herein. |
1.13 | “Factoring Fee” shall have that meaning as set forth in Section 3.5 herein. |
1.14 | “Initial Funding Date” shall mean the date in which Buyer makes the first purchase of any Receivable pursuant to this Agreement. |
1.15 | “Insolvent” shall mean with respect to an Account Debtor that such Account Debtor has filed, or has had filed against it, any bankruptcy case, or has made an assignment for the benefit of creditors. |
1.16 | “Invalid Invoice Fee” shall be Ten Percent (10%) of the face amount of any Purchased Receivable which violates Seller’s warranty in Section 6.1 herein. |
1.17 | “Maximum Credit” shall have that meaning as set forth in Section 2.1 herein. |
1.18 | “Misdirected Payment Fee” shall be Ten Percent (10%) of the face amount of any Purchased Receivable for which Seller violates the warranty set forth in Section 3.3 herein. |
1.19 | “Missing Notation Fee” shall be Ten Percent (10%) of the face amount of any Purchased Receivable for which Seller violates the warranty set forth in Section 2.5 herein. |
1.20 | “Obligations” shall mean the obligation to pay and perform when due all debts and all obligations, liabilities, covenants, agreements, guarantees, warranties and representations of Seller to Buyer, of any and every kind and nature, whether heretofore, now or hereafter owing, arising, due or payable from Seller to Buyer, howsoever created, incurred, acquired, arising or evidenced; whether primary, secondary, direct, absolute, contingent, fixed, secured, unsecured, or otherwise; whether as principal or guarantor; acquired by assignment, liquidated or unliquidated; certain or uncertain; determined or undetermined; due or to become du; as a result of present or future advances or otherwise; joint or individual; pursuant to or caused by Seller’s breach of this Agreement, or any other present or future agreement or instrument, or created by operation of law or otherwise; evidenced by a written instrument or oral; created dirtied), between Buyer and Seller or restitution claims owed by Seller to a third party and acquired by Buyer from such third party, monetary or nonmonetary. |
1.21 | “Online Reporting Service” shall mean the system set up on buyer’s website where Seller provides Buyer with the pertinent data necessary for Buyer to purchase Receivables under this Agreement and otherwise administer this Agreement |
1.22 | “Online Statement of Account” shall have that meaning as set forth in Section 3.1 herein. |
1.23 | “Payment Period” shall be ninety (90) calendar days from an invoice date. |
1.24 | “Purchased Receivables” shall mean all Receivables arising out of the invoices and other agreements identified on or delivered with any Schedule of Accounts delivered by Seller to Buyer which Buyer elects to purchase and for which Buyer makes an Advance. |
1.25 | “Receivable” shall mean accounts, chattel paper, instruments, contract rights, documents, general intangibles, letters of credit, drafts, banker’s acceptances, and rights to payment, and all proceeds thereof. |
1.26 | “Reconciliation Period” shall, unless otherwise notified by Buyer to Seller, mean a weekly calendar period. |
1.27 | “Repurchased Receivable” than refer to a Purchased Receivable which the Seller has become obligated to Repurchase under Section 4.1 hereof. |
1.28 | “Reserve” shall have that meaning as set forth in Section 2.4 herein. |
1.29 | “Returned Check Fee“ Seller shall pay to Buyer a fee in the amount of $30.00 in the event a notice is received of a returned check for any payment processed on behalf of Seller. |
1.30 | “Schedule of Accounts” shall mean a Xxxx of Sale signed by a representative of Seller which accurately identifies the Receivables which Buyer, at its election, may purchase, and includes for each such Receivable the correct amount owed by the Account Debtor, the name and address of the Account Debtor, the invoice number, and the invoice date. |
1.31 | “Wire Fee” S15.95 for all domestic wire charges and $50.00 for all foreign wire charges incurred by Buyer. |
1.32 | “Write Off Period” shall mean twelve (12) calendar months from the date Buyer purchases a Receivable. |
1.33 | UCC Definitions: all other capitalized terms not otherwise defined herein shall have that meaning as set forth in the UCC as enacted in the State of California. |
Section 2.PURCHASE AND SALE OF RECEIVABLES
2.1 | Acceptance of Receivables. Buyer shall have no obligation to purchase any Receivable listed on a Schedule of Accounts. Upon acceptance, Buyer shall pay to Seller the Advance Percentage of the face amount of each Receivable Buyer desires to purchase minus ACH Fee, Wire Fee, Repurchased Receivables, Adjustments and other Obligations which arc currently due under the Factoring Agreement. Such payment shall be the “Advance” with respect to such Receivable. The purchase price of any Receivables purchased hereunder shall be the sum of the Advance, plus any Reserve payable by Buyer to Seller relating to such Receivable. The aggregate amount of all outstanding Advances shall not at any time exceed the lesser of Three Million Dollars ($3,000,000) (the Maximum Credit) or an amount equal to the sum of all undisputed Purchased Receivables multiplied by the Advance Percentage. Seller shall not request and Buyer shall not make an Advance that would cause the resulting total of all Advances to exceed the foregoing limitation. In the event the aggregate outstanding Obligations shall at any time exceed the foregoing limitation, Seller shall immediately repay the Advance; in the amount of such excess. |
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Section 3.COLLECTION& CHARGES AND REMITTANCES
3.1 | Accounting. Seller shall immediately upon sale of Receivables to Buyer, make proper entries on its books and records disclosing the sale thereof to Buyer. Seller will immediately furnish Buyer financial statements, tax records and all other information as requested by Buyer. Buyer shall post all of Seller’s account activity on Buyer’s website, which shall constitute Seller’s Online Statement of Account. Buyer will not likely send Seller any hard copies of any of the activities which constitute Seller’s Online Statement of Account. Provided that there is no Event of Default, Buyer shall provide Seller with continuous access to Seller to view the Online Statement of Account. Seller shall be solely responsible for checking its Online Statement of Account. If Seller disputes any entry on the Online Statement of Account it shall, within thirty (30) days after the first posting of the event, send to Buyer a written exception to such event. Unless Buyer receives a timely written exception to the activity posted to the Online Statement of Account, within thirty (30) days after it is first posted, the Online Statement of Account shall become an account stated and be deemed accepted by Seller and shall be conclusive and binding upon the Seller. |
3.2 | Audit Fees. Buyer or its designee may conduct examinations of the Collateral and Seller’s operations, unless an Event of Default has occurred and is continuing, in which event the number of audits conducted will be in Buyer’s reasonable discretion. Seller shall pay Buyer audit fees not to exceed 1,000.00 per day plus expenses per audit. Audit fees shall be payable upon demand by Buyer. |
3.3 | Collections. All Collections will go directly to Buyer and Buyer shall apply all Collections to Seller’s Obligations hereunder in such order and manner as Buyer may determine in its sole discretion. Seller will bold in trust and safekeeping as the sole property of Buyer, and immediately turn over to Buyer, in identical form received, any payment on a Purchased Receivable, or Receivable assigned to Buyer under this Agreement, that comes into Seller’s possession. In the event Seller comes into possession of a remittance comprising payments of both a Purchased Receivable and Receivable which has not been purchased by Buyer, Seller shall hold same in accordance with the provisions set forth above and immediately turn same over to Buyer, in identical form received. Upon collection of such item and provided there is no Event of Default, Buyer shall remit to Seller its portion thereof. Seller’s failure to comply with its duties under this Section shall result in the imposition of the Misdirected Payment Fee as liquidated damages, as such damages shall be difficult to calculate or ascertain. Seller agrees to indemnify and save Buyer harmless from and against any and all claims, loss, costs and expenses caused by or arising out of the Receivables or any attempt by Buyer to collect same or resolve any Dispute. |
3.4 | Crediting of Payments. For purposes of determining availability under this Agreement, payments on Purchased Receivables and other payments with respect to the collateral and Obligations will be credited to the Purchased Receivables of Seller upon the date of Buyer’s receipt of advice from Buyer’s bank that such payments have been credited to Buyer’s account or in the case of payments received directly in kind by Buyer, upon the date of Buyer’s deposit thereof at Buyer’s bank, subject in either case to final payment and collection. Solely for the purpose of calculating fees under this Agreement, payments on Purchased Receivables and other payments with respect to collateral and Obligations shall be deemed received by Buyer three (3) business days after the date of Buyer’s receipt of advice from Buyer’s bank that such payments have been credited to Buyer’s account or in the case of payments received directly in kind by Buyer, three (3) business days after the date of Buyer’s deposit thereof at Buyer’s bank, subject in either case to final payment and collection. |
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3.5 | Factoring Fee. Seller shall pay to Buyer upon purchase of Receivables by Buyer, a Factoring Fee (“Factoring Fee”), calculated by taking one and eight-tenths of one percent (1.80%) of the gross face value of a Purchased Receivable for the first thirty (30) day period from the date said Purchased Receivable is first purchased by Buyer, and a Factoring Fee of sixty-five hundredths of one percent (0.65%) per ten (10) days thereafter (“Fee Period”) until the date said Purchased Receivable is paid in full or otherwise repurchased by Seller or otherwise written off by Buyer within the Write Off Period. |
3.5.1 | Seller and Buyer acknowledge and agree that the sale of accounts contemplated and covered hereby are fully intended by the parties hereto as true sales governed by the provisions of Section 306.103 of the Texas Finance Code and Section 9.109(c) of the Texas Business and Commerce Code, as each may be amended from time to time, and, accordingly, legal and equitable title in all of Seller’s accounts sold to and purchased by Buyer from time to time hereunder will pass to Buyer. |
3.6 | Invalid Invoice Fee. Seller shall pay Buyer the Invalid Invoice Fee immediately upon its accrual. |
3.7 | Misdirected Payment Fee. Seller shall pay Buyer the Misdirected Payment Fee immediately upon its accrual. |
3.8 | Missing Notation Fee. Seller shall pay Buyer the Missing Notation Fee immediately upon its accrual. |
3.9 | Monthly Minimum Fee. Buyer would not have entered into this Agreement and agreed to provide Seller with the factoring arrangements hereunder unless Seller guaranteed Buyer that the sum of the Finance and Factoring Fees paid to Buyer in each month would be at least one half of one percent (0.50%) of the Maximum Credit (the “Monthly Minimum Fee’). In the event the aggregate Finance and Factoring Fees paid during any month is less than the Monthly Minimum Fee, then Seller shall pay to Buyer the amount of any deficiency (the “Supplemental Fee”), which shall be in addition to any other fees payable under this agreement. The Supplemental Fee, if any, for any month shall be calculated and due and payable on the first business day of the succeeding month and shall be payable for each month during the current Term of this Agreement regardless of whether this Agreement is terminated prior to the expiration of the then current term. |
3.10 | Refund to Seller. Provided that there does not then exist an Event of Default, as defined in Section 9, or any event or condition that with notice, lapse of time or otherwise would constitute an Event of Default, Buyer shall refund to Seller, the amount, if any, which Buyer owes to Seller at the end of the Reconciliation Period according to the accounting prepared by Buyer for that Reconciliation Period (the “Refund”). The Refund shall be an amount equal to: |
3.10.1 | The Reserve as of the beginning of that Reconciliation Period, plus |
3.10.2 | The Reserve created for each Purchased Receivable paid during that Reconciliation Period, minus |
3.10.3 | The Reserve created for each Repurchased Receivable, minus |
3.10.4 | The total for that Reconciliation Period of |
3.10.4.1 | Factoring Fee |
3.10.4.2 | Adjustments and/or reserves for Avoidance Claims; |
3.10.4.3 | Repurchased Receivables, to the extent Buyer has agreed to accept payment thereof by deduction from the Refund; and |
3.10.4.4 | The Reserve for the Account Balance as of the first day of the following Reconciliation Period. |
3.10.4.5 | In the event the formula set forth in this Section results in an amount due to Buyer from Seller, Seller shall immediately make such payment to Buyer or, in Buyer’s sole discretion, assign additional Receivables to Buyer. |
3.11 | Standards Regarding Collections. Buyer’s collection activities with respect to any Receivable, whether or not a Dispute exists, does not obligate Buyer to engage a collection agency or commence a legal action to collect any Receivable. Seller acknowledges that Buyer is not a collection agency and does not provide debt collection services to Seller. If a Receivable is not paid, for any reason, Buyer, in its sole discretion may engage a collection agency, attorney or other service provider to collect the Receivable and any fees and costs associated therewith shall constitute part of the Obligations. Any actions which Buyer may take pursuant to this section, in its sole discretion, shall not alter Seller’s Obligations to repurchase any Receivable pursuant to Section 4 herein. |
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Section 4.RECOURSE AND REPURCHASE OBLIGATIONS
4.1 | Seller’s Agreement to Repurchase. Seller agrees to pay to Buyer on demand, and repurchase in the full face amount, or any unpaid portion of, any Purchased Receivable: |
4.1.1 | Which remains unpaid for the Payment Period; |
4.1.2 | With respect to which there has been any breach of warranty or representation set forth in Section 6 hereof or any breach of any covenant contained in this Agreement; or |
4.1.3 | With respect to which the Account Debtor asserts any Dispute. |
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Section 6.SELLER’S WARRANTIES REPRESENTATIONS AND COVENANTS.
6.1.1 | Seller is the absolute owner of each Receivable set Forth in the Schedule of Accounts and has full legal right to sell, transfer and assign such Receivables; |
6.1.2 | The correct face amount of each Receivable is as set forth in the Schedule of Accounts and is not in Dispute; |
6.1.3 | The payment of each Receivable is not contingent upon the fulfillment of any obligation or contract, past or future, and any and all obligations required of the Seller have been fulfilled as of the date of the Schedule of Accounts; |
6.1.4 | Each Receivable set forth on the Schedule of Accounts is based on the actual sale and delivery of goods and/or services actually rendered on terms not to exceed thirty (30) days, does not represent a sale to a parent, subsidiary or affiliate of Seller, is presently due and owing to Seller, is not past due or in default, has not been previously sold, assigned, transferred, or pledged, is not a consignment sale or xxxx and hold transaction, and is free of any and all liens, security interests and encumbrances other than liens, security interests or encumbrances in favor of Buyer or any other division of or affiliate of Buyer; |
6.1.5 | There are no defenses, offsets, or counterclaims against any of the Purchased Receivables, and no agreement has been made under which the Account Debtor may claim any deduction or discount, except as otherwise stated in the Schedule of Accounts; |
6.1.6 | At the time that Buyer makes an Advance relating to a Receivable, the Account Debtors set forth in the Schedule of Accounts, are then not insolvent and Seller has no knowledge that the Account Debtors are insolvent or may become insolvent within the Payment Period; |
6.1.7 | Seller shall not take or permit any action to countermand notification to Account Debtors of Buyer’s ownership of Purchased Receivables. |
6.1.8 | Each Receivable shall be set forth in an invoice or written agreement subject to Buyer’s approval, and all contractual terms between Seller and the Account Debtor have been fully disclosed to Buyer. |
6.1.9 | Seller’s failure to comply with the warranty in this Section shall result in the imposition of the Invalid Invoice Fee as liquidated damages as such damages shall be difficult to calculate or ascertain. |
6.2.1 | Seller will not assign, transfer, sell or grant any security interest in any Collateral to any other party, without Buyer’s prior written consent; |
6.2.2 | The Seller’s name, form of organization, place of business and the place where the records concerning all receivables herein referred to are kept is set forth at the beginning of this Agreement, and Seller will give Buyer thirty (30) days advance notice in writing if such name, organization, place of business or record keeping is to be changed or a new place of business or record keeping is to be added and shall execute any documents necessary to perfect Buyer’s interest in Purchased Receivables and the Collateral; |
6.2.3 | Seller shall pay all of its gross payroll for employees, and all federal and state taxes, as and when due, including, without limitation, all payroll and withholding taxes and state sales taxes; |
6.2.4 | Seller has not, as of the xxxx Xxxxxx delivers to Buyer a Schedule of Accounts, or as of the xxxx Xxxxxx accepts any Advance from Buyer, filed a voluntary petition for relief under the United States Bankruptcy Code or had filed against it an involuntary petition for relief; |
6.2.5 | Seller, if a corporation, is duly incorporated, at all times, in good standing under the laws of the State of Delaware, and is duly qualified in all States where such qualification is required. Seller has all required licenses to operate its business and transacts business under no trade names or trade styles other than Simplikate Systems LLC; Senddroid; Tapir; 30 Second Software, Inc.; Phuneware Inc. |
6.2.6 | Seller is duly authorized to enter into this Agreement and to grant the security interest in the Collateral. |
6.2.7 | Seller is now, and at all times hereafter, the sole and lawful owner of the Collateral, and with the security interest granted to Buyer, the Collateral shall be free and clear of any claims, liens, encumbrances or other interests therein. |
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6.2.8 | All documents, reports, or other writings submitted to Buyer in connection with this Agreement shall be true and correct. |
6.2.9 | Seller shall provide immediate access to Buyer to its business premises or any location where any of the Collateral is stored, in order to inspect the Seller’s business operations, Collateral or any books, records or computer data which relates to or contains any information concerning the Collateral. |
6.2.10 | There is no fact which Seller has not disclosed to Buyer in writing which could materially adversely affect the Collateral, or business or financial condition of the Seller, or which are necessary to disclose in order to keep the foregoing representations from being misleading. |
6.2.11 | Seller is not in violation of any federal, state or local law. |
6.2.12 | Seller shall within five (5) business days notify Buyer in writing of any issue which may materially affect the Collateral or Seller’s business. |
6.2.13 | Seller shall not sell any of the Collateral or its assets outside the ordinary course of its business. |
6.2.14 | Any change in control or ownership of Seller shall require Buyer’s written consent |
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Section 9.DEFAULT AND REMEDIES UPON DEFAULT.
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Notwithstanding the foregoing, any termination of this Agreement shall not affect Buyer’s security interest in the Collateral, Buyer’s ownership of the Purchased Receivables, Buyer’s indemnity portion of the Obligations, any other tights granted to Buyer or Seller’s Obligations, and this Agreement shall continue to be effective, and Buyer’s rights and remedies hereunder, including rights granted under this Agreement, the UCC, at law or in equity shall survive such termination, until all Indemnity Obligations, and other Obligations incurred under this Agreement or in connection herewith have been completed and satisfied in full
Section 11.PARTICIPATIONS; ASSIGNMENTS. Seller understands that Buyer may from time to time transfer and assign its rights under this Agreement to one or snore assignees. Seller hereby consents to these transfers and assignments by Buyer to one or more assignees. Seller hereby consents that any such assignee may exercise the rights of the Buyer hereunder. Seller further hereby consents and acknowledges that any and all defenses, claims or counterclaims that it may have against the Buyer shall be limited to, and may only be brought against Buyer and may not extend to any assignee, including, but not limited to, any claims which pertain to this Agreement Seller consents to Buyer releasing any and all information regarding Seller and any guarantors to any assignee or potential assignee and waives any and all claims pertaining to the release of such information. Seller and Buyer intend that any and all direct or indirect assignees of the Buyer of the type act forth above shall be the third party beneficiaries of this Agreement
Section 00.XXXXXX USER STANDARDS.
12.2 | Standards Regarding Conducting Business Online. Seller and Buyer agree as follows: |
12.2.1 | Buyer shall have the right to terminate Seller’s access to the Online Reporting Service upon the occurrence of an Event of Default. |
12.2.2 | Seller shall not: (i) copy die Online Reporting Service nor otherwise reproduce the same other than for normal system operation backup; (ii) translate, adapt, vary, or modify the Online Reporting Service; or (iii) disassemble, decompile or reverse engineer the Online Reporting Service. |
12.2.3 | Buyer shall not be liable to Seller for any loss or damage whatsoever or howsoever caused, whether caused by tort (including negligence), breach of contract, or otherwise arising directly or indirectly in connection with the use of the Online Reporting Service. |
12.2.4 | Buyer expressly excludes liability for any indirect, special, incidental or consequential loss or damage whether caused by tort (including negligence), breach of contract or otherwise, which may arise in respect of the Online Reporting Service, its use, or in respect of equipment or property, or for loss of profit, business, revenue, goodwill or anticipated savings. |
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12.2.5 | Seller acknowledges that any and all of the copyright, trademarks, trade names, patents, trade secrets and other intellectual property rights subsisting in or used in connection with the Online Reporting Service, including all documentation and manuals relating thereto, arc, and shall remain, the sole property of the Buyer. Seller shall not, during or at any time after the expiry or termination of its use of the Online Reporting Service, in any way question or dispute the ownership by Buyer thereof. |
12.2.6 | To the extent permitted by applicable law, Buyer excludes all warranties with respect to the Online Reporting Service, either express or implied, including, but not limited to, any implied warranties of satisfactory quality or fitness for any particular purpose. |
12.2.7 | Seller is solely responsible for virus scanning the Online Reporting Service, and Buyer makes no representations or warranties regarding any virus associated with the Online Reporting Services. |
12.2.8 | All information, data, drawings, specifications, documentation, software listings, source or object code which Buyer may have imparted and may from time to time impart to the Seller relating to the Online Reporting Service is proprietary and confidential. Seller hereby agrees that it shall use the same solely in accordance with the provisions of this Agreement and that it shall not, at any time during or after expiry or termination of this Agreement, disclose the same, whether directly or indirectly, to any third party. |
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13.13 | Amendment. The terms and provisions of this Agreement may not be waived, altered, modified or amended except in a writing executed by Seller and a duly authorized officer of Buyer. |
13.14 | Time of Essence. Time is of the essence in the performance by Seller of each and every obligation under this Agreement. |
13.15 | Governing Law; Jurisdiction; Venue. This Agreement and all acts and transactions hereunder and thereunder and all rights and obligations of Buyer and Seller shall be governed, construed and interpreted in accordance with the internal laws of the State of California. Seller: (i) agrees that all actions or proceedings relating directly or indirectly this Agreement or any of the Obligations shall, at the sole option of Buyer, be litigated in courts located within said state, and that, at the sole option of Buyer, the exclusive venue therefore shall be Santa Xxxxx County, California; (ii) consents to the jurisdiction and venue of any such court and consents to service of process in any such action or proceeding by personal delivery or any other method permitted by law; and (iii) waives any and all tights Seller may have to object to the jurisdiction of any such court, or to transfer or change the venue of any such action or proceeding. |
13.16 | Waiver of Right to Jury Trial/ Judicial Reference/ Arbitration. |
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13.17.1 | Judicial Reference. Buyer and Seller each prefer that any dispute between them be resolved in litigation subject to the jury trial waiver set forth herein, but the California Supreme Court has held that such pre-dispute jury trial waivers are unenforceable. This section will be applicable until: (a) the California Supreme Court holds that a pre-dispute jury trial waiver provision similar to that contained herein is valid or enforceable; or (b) the California legislature passes legislation and the governor of the State of California signs into law a statute authorizing plc-dispute jury trial waivers and as a result such waivers became enforceable. |
Accordingly, Buyer and Seller each knowingly and voluntarily agree that any civil action or proceeding involving a dispute arising out of or relating to this Agreement, shall be tried solely through a judicial reference as provided in sections 638 through 6452 of the California Code of Civil Procedure CCCP”) and as described herein (the “Judicial Reference”). Buyer and Seller further realize that by agreeing to Judicial Reference as provided in CCP sections 638 through 645.2, the parties will have waived their rights to trial by jury.
Buyer and Seller each further agree that the referee shall be a retired Judge or Justice selected by mutual written agreement of the parties. If the panics do not agree, the referee shall be selected by the Trial Court. Buyer and Seller further agree that the filing of any law and motion hearings or the initiation of any hearings to obtain any form of a pre-judgment remedy shall not operate as a waiver of the parties’ right to trial solely through a Judicial Reference.
A request for appointment of a referee may be heard on an ex parte or expedited basis, and Buyer and Seller agree that irreparable harm would result if ex pane relief is not granted. The referee shall be appointed to sit with all the powers provided by law. The referee shall be required to determine all issues in accordance with existing case law and the statutory laws of the State of California. The rules of evidence applicable to proceedings at law in the State of California will be applicable to the reference proceeding. The referee shall be empowered to enter equitable as well as legal relief, provide all temporary or provisional remedies, enter equitable orders that will be binding on the parties and rule on any motion which would be authorized in a trial, including without limitation motions for summary judgment or summary adjudication. The referee shall issue a decision pursuant to CCP section 644 and the referee’s decision shall be entered by the Court as a judgment or an order in the same manner as if the action had been tried by the Court. The final judgment or order entered by the referee shall be fully appealable as provided by law. Buyer and Seller reserve the right to receive findings of fact, conclusions of laws, a written statement of decision, and the right to move for a new trial, which new trial, if granted, is also to be a reference proceeding under this provision.
Accordingly, if the trial court refuses to enforce the appointment of a judicial referee (and no successor statute is enacted) Buyer and Seller knowingly and voluntarily agree to submit and settle any dispute, controversy or claim arising out of relating to this Agreement to arbitration. This Agreement to submit to arbitration is presently effective but shall be enforced only in the event that the Jury Waiver and the Judicial Reference provision as set forth above and as provided in CCP sections 638 through 645.1, is held unenforceable. The arbitration shall be conducted in Santa Xxxxx, County, in the State of California and administered by a retired Judge or Justice selected by mutual written agreement of the parties who shall be governed by the same procedure as if the parties were proceeding by the above Judicial Reference procedure. Buyer and Seller further agree that the filing of any law and motion hearings or the initiation of any hearings to obtain any form of a pre-judgment remedy shall not operate as a waiver of the parties’ tight to submit and settle any dispute, controversy or claim arising out of relating to this Agreement to arbitration.
The arbitration procedure shall be governed by the substantive and procedural laws of the State of California, including all aspects of its arbitration law pursuant to the California Arbitration Act (“CAA”), sections 1280 through 1294.2 of the Code of Civil Procedure as amended from time to time. If a conflict exists between the provisions of the CAA and this Agreement, the language of this Agreement shall control. Buyer and Seller shall have all rights of discovery and remedies as they would in a California civil action pursuant to CCP section 1283.05, and the arbitration shall be governed by all of the applicable rules set forth in the Civil Discovery Act, CCP sections 2016.010 through 2036.050. All rules of evidence applicable to proceedings at law in the State of California will be applicable to the arbitration proceeding and the arbitrator is at all times required to strictly conform to these rules. The arbitrator shall prepare in writing and provide to the parties an award including Factual findings explaining the reasons on which their decision is based.
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The arbitrator shall not have the power to commit (a) errors of law or legal reasoning, (b) errors of fact, or (c) errors with regards to mixed questions of law and fact. In addition, the arbitrator shall not reach factual conclusions unsupported by substantial evidence. Furthermore, the arbitrator shall not have the power to render an award (a) not based on proper admissible evidence, (b) based on evidence not presented at the hearing, or (c) not in conformity with the substantive and procedural law of the Start of California.
In any arbitration arising out of or related to this Agreement, the arbitrator is not empowered to award punitive or exemplary damages, except where permitted by statute, and Buyer and Xxxxxx waive any right to recover any such damages.
If the arbitrator exceeds any of the foregoing specific powers, the award may be vacated or corrected by filing a petition pursuant to the CAA in the time frame provided in CCP sections 1280 through 1294.2 in the Superior Court for the County of Los Angeles, in the State of California. The award is subject to review for legal error, factual error, confirmation, correction or vacatur only in a California State Court of competent jurisdiction and only pursuant to the CAA.
In reviewing the award, the Superior Court shall sit as if it were an Appellate Court, in all respects, including but not limited to the scope of review. The decision of the Superior Court is, itself, subject to review by the California Appellate Courts. The supervising Court shall have the power to review (a) whether the findings of fact rendered by the arbitrators are supported by substantial evidence and (b) whether, as a matter of law based on such findings of Fact the award should be confirmed, corrected or vacated. Upon such determination, judgment shall be entered in favor of either party consistent therewith.
If any portion of this arbitration provision is held invalid or unenforceable, the remainder shall still be valid and enforceable and the arbitrator and/or supervising Court as applicable shall have the power to amend the arbitration procedures set forth herein so that this Agreement shall remain enforceable and binding.
Buyer and Seller each acknowledge that the judicial referee or arbitrator will charge fees and costs to conduct the Judicial Reference or arbitration. Buyer and Seller each agree to initially divide equally all Judicial Reference or arbitration fees and the compensation of the judicial referee or arbitrator. Notwithstanding the foregoing, the parties each further acknowledge that the judicial referee or arbitrator may decide that one party or the other is the prevailing party in which event the non-prevailing party will be obligated to reimburse die prevailing party for all of the fees and costs imposed in connection with the Judicial Reference or the arbitration.
THE REST OF THIS PAGE IS INTENTIONALLY BLANK
SIGNATURE PAGE FOLLOWS
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SELLER | ||
PHUNWARE, INC. | ||
By: | /s/ XXXX X. XXXXXXXXX |
Name/Title: | CEO |
Signer’s Driver’s license No. |
BUYER | ||
CSNK WORKING CAPITAL FINANCE CORP. D/B/A BAY VIEW FUNDING | ||
By: | ||
Title: | ||
Date: |
-17-
VALIDITY INDEMNIFICATION
June 14, 2016
CSNK Working Capital Finance Corp. d/b/a Bay View Funding
0000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
Telephone #(000) 000-0000 FAX #(000) 000-0000
RE: | Phunware, Inc. (“Seller”) and CSNK Working Capital Finance Corp. d/b/a Bay View Funding and any other Co-Buyer or Participant as specified in the Agreements (“Buyer”) as described in the FACTORING AGREEMENT dated June 14, 2016 and any subsequent amendments. |
Gentlemen:
The undersigned is the Chief Executive Officer of the Seller. In order to induce you to extend financial accommodations to the Seller pursuant to the Factoring Agreement and other various financing agreements (the “Agreements”) with the Seller, the undersigned, in his capacity as Chief Executive Officer of the Seller, hereby warrants and represents for so long as the undersigned is an executive officer of the Seller to you as follows:
1. | All Seller’s accounts which have been or will be reported to you by or on behalf of the Seller and in which you have purchased or hold a security interest (“Accounts”), whether such reports are in the form of agings, Invoice Transmittals, borrowing base certificates, collateral reports or financial statements, are genuine and in all respects what they purport to be, represent bona fide, undisputed obligations of Seller’s customers arising out of the performance of a service or the sale and completed delivery of merchandise sold by the Seller (the “Sold Goods”) in the ordinary course of its business in accordance with and in full and complete performance of customer’s (each, a “Customer”) order therefore, and have not been and will not be previously sold, assigned, transferred or pledged, and are and will be free of any encumbrance or lien. |
2. | All original checks, drafts, notes, letters of credit, acceptances and other proceeds of the Accounts, received by the Seller, will be held in trust for you and will immediately be forwarded to you upon receipt, in kind, in accordance with the terms of the Agreements. |
3. | Except as disclosed in writing to Buyer prior to sale of an Account to Buyer, none of the Accounts are or will be the subject of any offsets, defenses or counterclaims of any nature whatsoever, and Seller will not in any way impede or interfere with the normal collection and payment of the Accounts. No agreements have or will be made under which the account debtor for any of the Accounts may claim any deduction or discount, except as disclosed to you in writing. |
4. | Seller is presently solvent. The definition of solvent for the purpose of this Validity Indemnification shall mean Seller has not filed or has not had filed against it, any bankruptcy case, or has made assignment for the benefit of creditors. |
5. | The Sold Goods are and will be up to the point of sales, the sole and absolute property of the Seller, and the Accounts and Sold Goods will be free and clear of all liens and security interests, except your security interest. |
6. | The due dates of the Accounts will be as reported to you by or on behalf of the Seller. |
7. | Seller will promptly report to you all disputes, rejections, returns and resales of Sold Goods and all credits allowed by the Seller upon all Accounts. |
8. | All reports, which you receive from the Seller, including but not limited to those concerning its Accounts and its inventory, will be true and accurate except for minor inadvertent errors. |
9. | Seller will not sell its inventory except in the ordinary course of business. |
Any claims by Buyer with respect to any breach of the representations and warranties of the undersigned officer made by the undersigned prior to the date the undersigned ceases to be an executive officer of Seller (“Separation”) shall survive such Separation.
Seller hereby indemnities you and holds you harmless from any direct, indirect, or consequential damage or loss which you may sustain as a result of the breach of any representation or warranty contained herein, (all of which are continuing and irrevocable for so long as the Seller is indebted to you), or of your reliance (whether such reliance was reasonable) upon any misstatement (whether or not intentional), fraud, deceit or criminal act on the part of Seller or any officer, employee, or agent of the Seller, or any costs (including reasonable attorneys’ fees and expenses) incurred by you in the enforcement of any rights granted you hereunder against Seller. All such sums will be paid by Seller to you on demand. The undersigned hereby individually indemnities you and holds you harmless from any direct, indirect or consequential damage or loss which you may sustain as a result of any fraudulent, deceitful or criminal action on the part of the undersigned, or any costs (including reasonable attorneys’ fees and expenses) incurred by you in the prosecution of and enforcement of any judgment related to any such claim against the undersigned.
Seller waives all rights and defenses arising out of an election of remedies by the Buyer, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed Seller’s rights of subrogation and reimbursement against the principal by operation of Section 580d of the Code of Civil Procedure or otherwise.
Nothing herein contained shall be in any way impaired or affected by any change in or amendment of any of the Agreements. This agreement shall be binding upon the undersigned, and the undersigned’s personal representative, successors, and assigns.
Very truly yours,
/s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx
Chief Executive Officer
Phunware, Inc.
Address: 0000 Xxxxx Xxxxx Xxxx. Xxxxx 000 A.
City/State/Zip: Xxxxxx, Xxxxx 00000
Phone: (000) 000-0000
Date Signed: 6/15/2016
VALIDITY INDEMNIFICATION
June 14, 2016
CSNK Working Capital Finance Corp. d/b/a Bay View Funding
0000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
Telephone #(000) 000-0000 FAX #(000) 000-0000
RE: | Phunware, Inc. (“Seller”) and CSNK Working Capital Finance Corp. d/b/a Bay View Funding and any other Co-Buyer or Participant as specified in the Agreements (“Buyer”) as described in the FACTORING AGREEMENT dated June 14, 2016 and any subsequent amendments. |
Gentlemen:
The undersigned is the Chief Financial Officer of the Seller. In order to induce you to extend financial accommodations to the Seller pursuant to the Factoring Agreement and other various financing agreements (the “Agreements”) with the Seller, the undersigned, in his capacity as Chief Financial Officer of the Seller, hereby warrants and represents for so long as the undersigned is an executive officer of the Seller to you as follows:
1. | All Seller’s accounts which have been or will be reported to you by or on behalf of the Seller and in which you have purchased or hold a security interest (“Accounts”), whether such reports are in the form of agings, Invoice Transmittals, borrowing base certificates, collateral reports or financial statements, are genuine and in all respects what they purport to be, represent bona fide, undisputed obligations of Seller’s customers arising out of the performance of a service or the sale and completed delivery of merchandise sold by the Seller (the “Sold Goods”) in the ordinary course of its business in accordance with and in full and complete performance of customer’s (each, a “Customer”) order therefore, and have not been and will not be previously sold, assigned, transferred or pledged, and are and will be free of any encumbrance or lien. |
2. | All original checks, drafts, notes, letters of credit, acceptances and other proceeds of the Accounts, received by the Seller, will be held in trust for you and will immediately be forwarded to you upon receipt, in kind, in accordance with the terms of the Agreements. |
3. | Except as disclosed in writing to Buyer prior to sale of an Account to Buyer, none of the Accounts are or will be the subject of any offsets, defenses or counterclaims of any nature whatsoever, and Seller will not in any way impede or interfere with the normal collection and payment of the Accounts. No agreements have or will be made under which the account debtor for any of the Accounts may claim any deduction or discount, except as disclosed to you in writing. |
4. | Seller is presently solvent. The definition of solvent for the purpose of this Validity Indemnification shall mean Seller has not filed or has not had filed against it, any bankruptcy case, or has made assignment for the benefit of creditors. |
5. | The Sold Goods are and will be up to the point of sales, the sole and absolute property of the Seller, and the Accounts and Sold Goods will be free and clear of all liens and security interests, except your security interest. |
6. | The due dates of the Accounts will be as reported to you by or on behalf of the Seller. |
7. | Seller will promptly report to you all disputes, rejections, returns and resales of Sold Goods and all credits allowed by the Seller upon all Accounts. |
8. | All reports, which you receive from the Seller, including but not limited to those concerning its Accounts and its inventory, will be true and accurate except for minor inadvertent errors. |
9. | Seller will not sell its inventory except in the ordinary course of business. |
Any claims by Buyer with respect to any breach of the representations and warranties of the undersigned officer made by the undersigned prior to the date the undersigned ceases to be an executive officer of Seller (“Separation”) shall survive such Separation.
Seller hereby indemnifies you and holds you harmless from any direct, indirect, or consequential damage or loss which you may sustain as a result of the breach of any representation or warranty contained herein, (all of which are continuing and irrevocable for so long as the Seller is indebted to you), or of your reliance (whether such reliance was reasonable) upon any misstatement (whether or not intentional), fraud, deceit or criminal act on the part of Seller or any officer, employee, or agent of the Seller, or any costs (including reasonable attorneys’ fees and expenses) incurred by you in the enforcement of any rights granted you hereunder against Seller. All such sums will be paid by Seller to you on demand. The undersigned hereby individually indemnifies you and holds you harmless from any direct, indirect or consequential damage or loss which you may sustain as a result of any fraudulent, deceitful or criminal action on the part of the undersigned, or any costs (including reasonable attorneys’ fees and expenses) incurred by you in the prosecution of and enforcement of any judgment related to any such claim against the undersigned.
Seller waives all rights and defenses arising out of an election of remedies by the Buyer, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed Seller’s rights of subrogation and reimbursement against the principal by operation of Section 580d of the Code of Civil Procedure or otherwise.
Nothing herein contained shall be in any way impaired or affected by any change in or amendment of any of the Agreements. This agreement shall be binding upon the undersigned, and the undersigned’s personal representative, successors, and assigns.
Very truly yours,
/s/ Xxxx Xxxx
Xxxx Xxxx
Chief Executive Officer
Phunware, Inc.
Address: 00000 X. Xxxxxxxx Xx. Xxxxx 000
Xxxx/Xxxxx/Xxx: Xxx Xxxxx, XX 00000
Phone: (000) 000-0000
Date Signed: 6/15/2016
June 14, 2016
Re: General assignment of your vendor PHUNWARE, INC
EIN#
Dear Accounts Payable Manager:
We have obtained the services of Bay View Funding as a source of capital funding. The availability of this service will enable us to serve our customers in a more efficient manner. This letter will serve as written notice that Bay View Funding has been granted and assigned a security interest in the accounts receivable of PHUNWARE, INC. Therefore payments for our invoices should be made payable to and mailed directly to:
By check to:
Bay View Funding for the account of: PHUNWARE, INC. | By EFT to: Bank: ABA# Account Name: Account# SWIFT Code: |
|
This assignment has been duly recorded under the Uniform Commercial Code. Please make proper notations on your ledger and acknowledge the receipt of this letter by signing below and returning it to Bay View Funding.
This notice shall remain in full force and effect until you are notified by Bay View Funding to the contrary. Our goal is to make our invoicing as efficient for you as possible. If there are any changes you would like to see or any questions concerning your billing or this letter, please call Bay View Funding at (000) 000-0000.
Thank you for allowing us to serve you better.
Sincerely,
/s/ Xxxx Xxxxxxxxx | ||
Xxxx Xxxxxxxxx, CEO | BVF OFFICER: Xxxxxx Xxxxxxx, Executive Vice President |
Acknowledgment Signature:
Company name: | |||
Acknowledged by: | |||
Print name / title: | |||
Date: | |||
Phone #: | |||
Fax # | |||
A/P Email Address: |
CERTIFIED COPY OF RESOLUTIONS
RESOLVED, that the Factoring Agreement of the date specified below between this company and CSNK Working Capital Finance Corp. d/b/a Bay View Funding (herein “Buyer’) and all other agreements and documents connected therewith be, and the same hereby arc, approved on the terms and conditions as set forth therein;
RESOLVED, that any officer of this company is authorized and directed to enter into said agreement and all other agreements and documents connected therewith and to execute the same for and on behalf of this company on the terms and conditions set forth therein;
RESOLVED, that any officer of this company is authorized and directed to negotiate, agree upon, execute and deliver, from time to time, in the name o and on behalf of, this company, such agreements, amendments and supplements to said agreement or any other agreement or document connected therewith, documents, instruments, certificates, notices, and further assurances, and to perform any and all such acts and things as may be required by Buyer in connection with said agreement or any other agreement or document connected therewith, or may to him scan necessary or proper to implement and effect complete consummation of said agreement or any other agreement or document connected therewith in all respects and the purposes set forth in these resolutions;
RESOLVED, that a Schedule of Accounts submitted and signed by any employee of the company will authorize the sale, transfer or assignment of, for full face value or at a discount therefrom, accounts, nom, trade acceptances, drafts, contracts, leases or other instruments owned or held by the company and guarantee payment thereof on the company’s behalf.
RESOLVED, that these resolutions shall remain in full force and effect until written notice of their amendment or repeal shall be received by Buyer and until all indebtedness and obligations arising out of said agreement and all other agreements and documents connected therewith shall have been paid and satisfied in full.
The undersigned, as the duly constituted Secretary of this company does hereby certify that the foregoing is a true and correct copy of the resolutions duly adopted at a meeting of the Board of Directors of this company, duly called, noticed and held on the date specified below, at which meeting there was at all times present and acting a quorum of the members of said Board; that said resolutions arc in full force and effect; and that the following is 2 true and correct list of the present officers of this company:
Date of Factoring Agreement: June 14, 2016
CEO’s Name | Xxxx X. Xxxxxxxxx | |
Vice-President’s Name: | ||
Corp. Secretary’s Name: | ||
C110/Treasurer’s Name: | Xxxx Xxxx |
Corporate Secretary’s Signature: | /s/ Xxxx X. Xxxxxxxxx | ||
Name of Company: PHUNWARE, INC. | |||
(seal) |
Date company’s Board of Directors
adopted above resolutions: June 14, 2016
BayViewFunding
SCHEDULE OF ACCOUNTS
DATE: _______________ CLIENT: PHUNWARE, INC. SOA #: ______________ PACE: ______________
INV. DATE | INV # | P. O. # | CUSTOMER NAME | CUSTOMER ADDRESS | AMOUNT $ |
For valuable consideration, receipt of which is hereby acknowledged, the undersigned hereby assigns, sets over and transfers to CSNK Working Capital Finance Corp. d/b/a Bay View Funding, its successors or assigns, all its right, title and interest in and to the accounts above named, including all moneys due or to become due thereon, all in accordance with and pursuant to that certain Factoring Agreement now existing conditions, representations, warranties, and agreements of which are made a part of this sale and assignments and incorporated herein by reference. | TOTAL: | ||||
By our signature hereto, Seller expressly warrants the validity and accuracy of the invoice(s), and confirms that there are no special conditions, allowances, prior or current arrangements, offsets, disputes, liens or contra accounts that would in any way affect payment of this/these invoice(s). In the event that any such arrangements, liens, or, offsets, disputes or contra accounts are hereafter asserted by the customer, we agree immediately. | Gross Advance Amount | ||||
Check Number: ____________________ Check Date: _______ | Chargeback | ||||
Seller Name: PHUNWARE, INC. | Refund | ||||
Signature: ___________________ Date: ____________________ | Net Payment |
BayViewFunding
SIGNATURE AUTHORIZATION
This document gives CSNK Working Capital Finance Corp. d/b/a Bay View Funding authority to accept the signature(s) which appear herein below, on all Schedule(s) and Assignment(s) of Accounts, or in any other connection having to do with the Factoring Agreement entered into between you and the undersigned, dated June 14. 2016.
Said authorized signatures are as follows:
Name | Title | Sample Signature | ||
1. Xxxx X. Xxxxxxxxx | CEO | /s/ Xxxx X. Xxxxxxxxx | ||
2. Xxxx Xxxx | CFO | /s/ Xxxx Xxxx | ||
3.____________________ | _____________ | _______________________ |
Authorized by: | |
Effective Date: 6/15/2016 | Seller: Phunware, Inc. |
A Delaware corporation |
By: | /s/ Xxxx X. Xxxxxxxxx | |
Xxxx X. Xxxxxxxxx, CEO |
BayViewFunding
FACTORING PROCEDURES
(COPIES PROGRAM)
FACTORING COPIES PROGRAM
Bay View Funding (hereafter referred to as “BVF”) has approved your company to factor under its copies program. BVF has established a condensed list of factoring procedures for you to follow. Please review the following requirements carefully and contact your BVF representative if you have any questions.
FAILURE TO FOLLOW THE REQUIREMENTS OF THIS PROGRAM MAY RESULT IN BVF REQUIRING YOU TO SUBMIT ORIGINAL INVOICES AND ORIGINAL BACK-UP DOCUMENTATION PRIOR TO FUNDING.
ELIGIBILITY CRITERIA
● | Invoices, with all supporting documentation required by your customer to pay the invoice, must be submitted directly to your customer in a timely manner. |
o | Invoices for customers which accept legible copies of invoices and backup must be submitted to your customer within one day of the invoice being generated. |
o | Invoices for customers requiring original invoices and original backup must be mailed to your customer within three days of the invoice being generated. |
● | BVF’s assignment language must be on all invoices. |
● | Invoices must be billed net of fees, discounts or other offsets. |
● | All invoice documentation submitted to BVF must be completely legible. |
● | If you receive a payment for a factored invoice it must be immediately forwarded to BVF in its original form. |
INVOICE FUNDING REQUIREMENTS
Only legible images of invoices with BVF’s assignment language may be submitted for factoring. Assignment language, which must be added to your invoice template, is below:
NOTICE OF ASSIGNMENT
This Account has been assigned
and must be paid only to
BAY VIEW FUNDING
X.X. Xxx 000000
Xxxxxx, XX 00000-0000
Bay View Funding must be
promptly notified at (000) 000-0000
of any claims or offsets against this invoice
Legible invoice backup documentation (i.e. contracts, purchase orders, statements of work, proof of completion of service or delivery of product.) must be provided along with all invoices submitted for factoring.
Invoices submitted for factoring must be listed on an accompanying Schedule of Accounts (SOA). Each SOA must be signed by an authorized representative of your company (only signatures recorded on the Signature Authorization are accepted). Invoices, backup documentation and the accompanying SOA must be received by 1 p.m. PST to ensure funding the following business day.
BayViewFunding
ACCOUNT DEBTOR CREDIT APPROVAL AND NOTIFICATION/VERIFICATION
All account debtors (customers) must be credit approved by BVF before the invoices are submitted for funding. Failure to obtain customer credit approvals may result in a delay in funding or invoices not being funded.
Credit approved invoices submitted for factoring are verified with customers for accuracy before being purchased. A disputed invoice will not be purchased until its resolution is acknowledged in writing by your customer.
Customers must consent to a written acknowledgment of BVF as an assignee for invoice payment(s) before invoices submitted for factoring can be purchased.
INVOICE PAYMENTS
All factored invoice payments are the property of BVF. DO NOT CASH FACTORED INVOICE PAYMENTS. Cashing factored invoice payments (converting funds) is a breach of your Factoring Agreement. If you receive a payment for a factored invoice, please notify your BVF representative and send it to our California office location at 0000 Xxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxx Xxxxx, XX 00000.
By signing below, the undersigned hereby acknowledges and agrees to the procedures and requirements listed above and failure to abide by these procedures and may result in losing eligibility for the copies program.
PHUNWARE, INC.
By: | /s/ XXXX X. XXXXXXXXX | Date: | 6/15/2016 | |
XXXX X. XXXXXXXXX, CEO | ||||
By: | /s/ XXXX XXXX | Date: | 6/15/2016 | |
XXXX XXXX, CFO |