EXHIBIT 10.15D
RECEIVABLES PURCHASE AGREEMENT
THIS RECEIVABLES PURCHASE AGREEMENT (this "Agreement") dated as of December
31, 1997 by and between P-COM, INC., a Delaware corporation ("Seller"), and
XXXXX FARGO HSBC TRADE BANK N.A., a national banking association ("Buyer"),
W I T N E S S E T H:
WHEREAS, Seller and Buyer desire to enter into a receivables purchase
arrangement whereby Buyer will purchase from Seller certain receivables owned by
Seller; and
WHEREAS, Seller and Buyer are willing to enter into a receivables purchase
arrangement with each other on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual conditions and agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Seller and Buyer agree as follows:
ARTICLE 1
DEFINITIONS
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The following terms shall have the respective meanings set forth below:
"Agreement" shall mean this Receivables Purchase Agreement dated as of
December 31, 1997, by and between Seller and Buyer as amended, modified or
supplemented from time to time.
"Approved Country" shall mean those countries listed in Part A of Exhibit
A.
"Approved Customers" shall mean those account debtors of Receivables
generated by Seller listed in Part B of Exhibit A.
"Approved Insurance Policy" shall mean one or more irrevocable trade credit
insurance policies or foreign credit insurance policies, in form and substance
satisfactory to Buyer in its absolute and sole discretion, which shall insure
Seller against any Buyer-approved risk or any non-payment by a Customer of any
Receivables and under which Buyer shall be the loss payee, a form of which is
attached hereto as Exhibit B.
"Average Collection Days" shall mean the number obtained by dividing the
Aggregate Collection Amounts by the Aggregate Purchased Receivables Payments
Received. If the number is not an integral number it shall be rounded up or
down, as appropriate, to the closest integral number. "Aggregate Collection
Amounts" is the sum of the Collection Amounts for all of the Purchased
Receivables Payments Received. The "Collection Amount" with respect to a
Purchased Receivables Payment Received is the amount obtained by multiplying
such Purchased Receivable Payment Received (expressed in number, not dollar,
form) by the number of days from the Purchase Date to the date that Buyer
received such Purchased Receivable Payment Received. "Purchased Receivables
Payments Received" are the payments that Buyer receives with respect to the
amounts owed by the
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Approved Customers with respect to the Purchased Receivables, whether such
payments are (i) the payments made by or on behalf of the Approved Customers,
(ii) the payments made with respect to the Purchased Receivables under the
Approved Insurance Policy, or (iii) the payments made by Seller hereunder with
respect to the Purchased Receivables.
"Bankruptcy Event" shall mean the occurrence of any of the following:
Seller shall generally not pay its debts as such debts become due, or shall
admit in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors (or the equivalent); or any
proceeding shall be instituted by or against Seller seeking to adjudicate it a
bankrupt or insolvent (or the equivalent), or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, moratorium or
composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors or the like, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, or other similar
official for it or for any substantial part of its property, or Seller shall
take any corporate action to authorize any of the actions set forth above in
this subparagraph.
"Buyer" shall mean Xxxxx Fargo HSBC Trade Bank N.A.
"Business Day" shall mean any day that is not a Saturday, Sunday or other
day on which banks in California are required or permitted to close.
"Collateral" shall have the meaning given such term in Section 8.3 hereof.
"Customers" shall mean account debtors of Receivables.
"Dispute" shall mean any dispute, deduction, claim, offset, defense or
counterclaim of any kind relating to the Purchased Receivables, regardless of
whether the same (i) is in an amount greater than, equal to or less than the
Purchased Receivables concerned, (ii) is bona fide or not, or (iii) arises by
reason of an act of God, civil, strife, war, currency restrictions, foreign
political restrictions or regulations or any other circumstance beyond the
control of Seller or the applicable Approved Customer, provided, however, that
"Dispute" shall not mean a dispute between Buyer and Seller with respect to
their rights and obligations under this Agreement.
"Eligible Receivables" shall mean Receivables owing by Approved Customers
that are located in Approved Countries, with a term of less than one hundred
twenty (120) days and standard sales terms, that are insured for their full face
value (less deductibles and risk retention) under an Approved Insurance Policy,
the terms of which shall remain in effect through the first anniversary of the
date hereof.
"Events of Repurchase" shall have the meaning given such term in Article 9
hereof.
"Facility Letter" shall mean that certain letter agreement addressed to the
Seller from Buyer and dated December 29, 1997.
"Foreign Currency Eligible Receivables" shall mean Eligible Receivables
denominated in a currency other than the U.S. Dollar.
"Generally Accepted Accounting Principles" shall mean United States
generally accepted accounting principles as in effect from time to time.
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"Net Invoice Amount" shall mean the amount of the applicable Purchased
Receivable shown on the invoice for such Purchased Receivable as the total
amount payable by the Approved Customers (net of any discounts, credits or other
allowances shown on such invoice).
"Purchase Date" shall mean the date of purchase by Buyer of one or more
Eligible Receivables.
"Purchased Receivables" shall mean those Eligible Receivables which have
been sold by Seller to Buyer pursuant to the terms of this Agreement.
"Receivables" shall mean all accounts, instruments, documents, contract
rights, general intangibles, chattel paper and all other forms of obligations
owing to Seller, whether now existing or hereafter created that represent bona
fide obligations of Customers arising out of the sale and delivery of goods and
services by Seller in the ordinary course of business and all tax refunds,
proceeds of insurance and other proceeds thereof.
"Required Tax" shall mean any stamp, registration or similar transaction
tax necessary in order to ensure the legality, validity, enforceability or
admissibility in evidence of the assignment, delivery and sale of the Eligible
Receivables by Seller to Buyer.
"Sales Contracts" shall mean any and all contracts or agreements between
Approved Customers and Seller for the sale of goods or services by Seller to
Approved Customers.
"UCC" shall mean the Uniform Commercial Code as the same may, from time to
time, be in effect in the State of California; provided, however, in the event
that, by reason of mandatory provisions of law, any or all of the attachment,
perfection or priority of Buyer's security interest in any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of California, the term "UCC" shall mean the Uniform Commercial
Code in effect in such other jurisdiction for purposes of the provisions hereof
relating to such attachment, perfection or priority and for purposes of
definitions related to such provisions.
"U.S. Dollar" shall mean the lawful currency of the United States of
America.
"U.S. Dollar Equivalent" shall have the meaning given such term in Section
2.2 hereof.
"U.S. Dollar Equivalent Schedule" shall have the meaning given such term in
Section 2.2 hereof.
"Xxxxx Fargo" shall mean Xxxxx Fargo Bank N.A.
Terms defined in the UCC shall have the same meanings when used in this
Agreement unless otherwise defined herein.
ARTICLE 2
THE PURCHASE FACILITY
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2.1 The Facility. Buyer will provide a purchase facility to Seller on the
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terms and subject to the conditions set forth herein, up to a maximum aggregate
amount of fifteen million
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Dollars ($15,000,000) outstanding.
2.2 Purchase of Eligible Receivables. On the date hereof, Seller shall
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submit to Buyer a request to purchase particular Eligible Receivables hereunder
in a minimum amount of one million dollars ($1,000,000), together with all such
supporting documentation as Buyer shall request, including, without limitation,
in the case of Foreign Currency Eligible Receivables, a schedule ("U.S. Dollar
Equivalent Schedule") setting forth the equivalent amount in U.S. Dollars of
each such Foreign Eligible Receivable ("U.S. Dollar Equivalent"), as calculated
on the date hereof at the prevailing exchange rate agreed upon by Buyer and
Seller. Subject to Section 2.1 and upon satisfaction of the conditions
precedent set forth in Section 5.1, Seller shall assign and sell such Eligible
Receivables to Buyer as absolute owner thereof. Following the calculation of
the U.S. Dollar Equivalent on the date hereof in accordance with this Section,
Seller shall be solely responsible for any failure of Buyer to receive the U.S.
Dollar Equivalent as a result of fluctuations in the foreign currency in which
any Purchased Receivable may be denominated.
ARTICLE 3
PURCHASE PRICE
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3.1 Purchase Price. The purchase price for each Purchased Receivable
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shall be ninety-six percent (96%) of the Net Invoice Amount of such Purchased
Receivable. The purchase price of any Purchased Receivable shall be credited to
Seller's account on the Purchase Date for such Purchased Receivable and shall be
denominated in U.S. Dollars.
3.2 Fees. Seller shall pay or cause to be paid to Buyer all fees
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specified in the Facility Letter, including, without limitation, legal fees and
related disbursements.
ARTICLE 4
COLLECTION OF PURCHASED RECEIVABLES AND DELIVERY OF
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COLLECTED FUNDS
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4.1 Collection; Delivery of Funds.
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(a) Collection. Promptly upon receipt of any payment by a Customer with
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respect to a Purchased Receivable, Seller, in its capacity as collection agent
hereunder, shall deposit such payment, or, in the case of Purchased Receivables
that are denominated in a currency other than the U.S. Dollar, the U.S. Dollar
Equivalent, into a separate trust account maintained by Seller at Xxxxx Fargo
for Buyer's exclusive benefit.
(b) Delivery of Funds. On the last Business Day of each calendar month,
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all amounts collected from Approved Customers of Purchased Receivables and
deposited into the account referred to in Section 4.1(a) above shall be
transferred to Buyer. Seller hereby authorizes Buyer and Xxxxx Fargo to debit
such account for such purposes.
(c) Rebate. Upon Buyer's receipt of all payments due with respect to the
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Purchased Receivables, whether through payments made by or on behalf of
Customers and/or payments made under the Approved Insurance Policy and payments
made by Seller hereunder, Buyer and Seller
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shall determine the Average Collection Days for the Purchased Receivables. If
the Average Collection Days is less than one hundred ninety-two (192) days (the
"Projected Collection Days"), then Buyer shall pay to Seller the amount equal to
the sum obtained by multiplying) 0.0182% of the Net Invoice Amount of the
Purchased Receivables by the number obtained by deducting the Average Collection
Days from the Projected Collection Days.
4.2 Seller as Collection Agent.
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(a) Appointment. Buyer hereby appoints Seller, and Seller hereby accepts
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such appointment, as a collection agent for Buyer with respect to collection and
administration of the Purchased Receivables. As agent, Seller shall cause all
payments and other collection proceeds owing on the Purchased Receivable by
Approved Customers paid to Seller, to be held and applied for Buyer's benefit.
Such funds shall be Buyer's exclusive property, and upon receipt thereof, Seller
shall promptly deposit such funds as specified in Section 4.1(a) above. Seller
shall not, directly or indirectly, utilize any of such funds for its own
purposes, and shall not have any right to pledge any of such funds as collateral
for any obligations of Seller or any other party. In addition to Seller's
obligations under Section 10.3, Seller shall use its best efforts to collect all
Purchased Receivables as promptly as possible after they become due.
(b) Resignation and Removal; Procedure. Seller may resign from the
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performance of all its functions and duties hereunder as collection agent at any
time by giving at least thirty (30) Business Days' prior written notice to
Buyer. Such resignation shall take effect upon the successor collection agent's
acceptance of its appointment by Buyer and upon notice to Customers of Purchased
Receivables as to the appointment of a new collection agent. Buyer, at its sole
and absolute discretion and upon thirty (30) Business Days' prior written notice
(or immediately upon written notice if an Event of Repurchase has occurred or is
continuing or upon any Bankruptcy Event) to Seller, may remove Seller as
collection agent hereunder, which removal shall take effect on the date
specified in Buyer's notice.
4.3 Withholding of Taxes.
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(a) Payment to Be Free and Clear. Seller represents and warrants to Buyer
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that all payments by Seller, in its capacity as collection agent, and by
Approved Customers in respect of Purchased Receivables will be paid free and
clear of and (except to the extent required by law) without any deduction or
withholding on account of any tax imposed, levied, collected, withheld or
assessed by or within the United States of America or any political subdivisions
in or of the United States of America or any political subdivision in or of the
United States of America, any Approved Country, or any other jurisdiction from
or to which a payment is made by or on behalf of Seller or an Approved Customer
or by any federation or organization of which the United States of America, or
any such jurisdiction is a member at the time of payment.
(b) Grossing-up of Payments. If, notwithstanding Seller's representation
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and warranty under subsection (a) of this Section 4.3, Seller in its capacity as
collection agent hereunder, an Approved Customer or any other person or entity
is required by law to make any deduction or withholding on account of any such
tax from any sum paid or payable by Seller or an Approved Customer to Buyer
hereunder:
(i) Seller shall notify Buyer of any such requirement or any change
in any requirement as soon as Seller becomes aware of it;
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(ii) Seller shall pay, for itself and on behalf of Approved
Customers, any such tax before the date on which penalties attach thereto,
such payment to be made (if the liability to pay is imposed on Seller or
Approved Customers) for its or their own account or (if that liability is
imposed on Buyer on behalf of and in the name of Buyer);
(iii) The sum payable by Seller for itself on behalf of Approved
Customers, in respect of which the relevant deduction, withholding or
payment is required shall be increased to the extent necessary to ensure
that, after the making of that deduction, withholding or payment, Buyer
receives on the due date and retains (free from any liability in respect of
any such deduction, withholding or payment) a net sum equal to what it
would have received and so retained had no such deduction, withholding or
payment been required or made; and
(iv) Within thirty (30) days after payment of any sum from which it
is required by law to make any deductions or withholding and within thirty
(30) days after the due date of payment of any tax which it is required by
this subsection (b) above to pay, Seller shall deliver to Buyer any
original vouchers or receipts, or certified copies of such vouchers or
receipts, evidencing payment of such withholding tax and any other
documents or information relating to such payments received by Seller from
governmental authorities in the country levying such withholding taxes.
ARTICLE 5
CONDITIONS PRECEDENT
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Buyer's obligation to purchase any Eligible Receivable is conditional upon:
(a) Buyer having received the following:
(i) the facility fee payable pursuant to the Facility Letter;
(ii) the documents listed on Exhibit C hereto in form and substance
satisfactory to Buyer in its absolute and sole discretion;
(iii) the original invoice for the Eligible Receivable, which invoice
shall incorporate the Standard Terms and Conditions of Sale by Seller as in
effect on the date hereof;
(iv) evidence that the UCC financing statements have been filed with
respect to the Collateral; and
(v) such other supporting documentation for the Eligible Receivable
as Buyer shall have requested;
(b) the purchase of the Eligible Receivables not resulting in the total
outstanding amount of all Purchased Receivables exceeding fifteen million
Dollars ($15,000,000);
(c) each representation and warranty and covenant made by Seller in this
Agreement and with respect to each invoice delivered by Seller pursuant to this
Agreement being true and accurate in all material respects on the Purchase Date;
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(d) no Event of Repurchase by Seller having occurred hereunder; and
(e) there being no material adverse change in the financial condition,
business or prospects of Seller as determined by Buyer in its sole judgment.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
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Seller hereby represents and warrants to Buyer that:
(a) Seller is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it was incorporated, and is
qualified to do business and is in good standing as a foreign corporation in
each other state or jurisdiction where the character of the property owned or
the nature of its business requires it to be so qualified;
(b) neither the execution nor delivery of this Agreement or any of the
other documents related hereto nor performance of nor compliance with the terms
and provisions hereof or thereof will conflict with or result in a breach of any
laws, statutes, codes, rules, ordinance, orders, judgments, decrees,
injunctions, rules, regulations, permits, licenses, authorizations or orders of
any governmental department, commission, board, courts, authority or agency, or
any other agreement or instrument binding upon Seller or any of its property, or
conflict with or result in a breach of any provision of the charter documents or
by-laws of Seller. No authorization, consent or approval or other action by,
and no notice to or filing with, any governmental authority is required to be
obtained or made by Seller for the due execution, delivery and performance by
Seller of this Agreement;
(c) Seller has the requisite power to enter into and deliver this
Agreement and to endorse, deliver, assign and sell Eligible Receivables and
Purchased Receivables in the manner herein contemplated and has taken all
necessary corporate or other action required to authorize the execution,
delivery and performance of this Agreement and Seller has taken all necessary
corporate or other action required to authorize the assignment, delivery and
sale of the Eligible Receivables and Purchased Receivables;
(d) all Eligible Receivables are, and at the time of presentation to Buyer
and acceptance by Buyer will be, bona fide and existing and enforceable
obligations of Approved Customers in the country of origin of such Approved
Customers arising out of the sale of goods and rendition of services in the
ordinary course of Seller's business, and are and will be sold by Seller to
Buyer in the ordinary course of business, free and clear of all liens, security
interests and encumbrances, and upon acceptance shall be owned by Buyer and
owing to Buyer without any Dispute; no note, account, instrument, document,
contract right, general intangible, chattel paper or other form of obligation
other than that which has been delivered to Buyer exists that evidences any
Purchased Receivable; and no Approved Customer is an affiliate of Seller;
(e) this Agreement and the acceptance of assignment, delivery and sale by
Seller to Buyer of (i) each invoice and (ii) every other document and instrument
representing the Eligible Receivables will constitute legal, valid and binding
obligations enforceable against Seller in accordance with its terms, and its
execution and performance will not cause a breach, or an act which will the
passage of time or the giving of notice, or both, would constitute a breach, of
any
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other agreement to which Seller is a party or to which any of its respective
properties is subject;
(f) Seller is now, and at all times during the term of this Agreement
shall be, solvent and Seller is fully authorized to assign and sell the Eligible
Receivables to Buyer as contemplated by this Agreement without any restriction
of any kind, and shall be authorized to grant to Buyer the security interests
granted herein;
(g) the sale of the Eligible Receivables to Buyer under this Agreement
qualifies for accounting treatment as a sale of assets under FASB Statement of
Financial Accounting Standards No. 125, "Accounting for Transfers and Servicing
of Financial Assets and Extinguishments of Liabilities";
(h) Seller maintains a positive vendor relationship with each of the
Approved Customers for each Purchased Receivable, and there are no actions,
claims or proceedings now pending between Seller and any Approved Customer with
respect to any Purchased Receivable;
(i) Seller has complied with all terms, provisions and obligations under
any and all Approved Insurance Policies with respect to any Purchased Receivable
and all premiums under any Approved Insurance Policy with respect to any
Purchased Receivable have been fully paid and Buyer is entitled to the benefits
as a loss payee under any and all such Approved Insurance Policies with respect
to any Purchased Receivable in accordance with the terms therein;
(j) Buyer has and at all times during the term of this Agreement will have
a perfected, first priority security interest in all of the Collateral, but only
to the extent that Buyer has not acquired title thereto in accordance with the
terms hereof; and
(k) the principal place of business of Seller is located at 0000 Xxxxx
Xxxxxxxxxx Xxxx., Xxxxxxxx, Xxxxxxxxxx 00000.
ARTICLE 7
COVENANTS OF SELLER
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Seller agrees to:
(a) from time to time, upon the request of Buyer, promptly and duly
execute and deliver any and all such further documents and instruments and
render all such (or such further) assistance as Buyer may require for the
purpose of enabling Buyer to obtain the full benefit of this Agreement;
(b) duly perform and comply with all terms, provisions and obligations
under each contract relating to the Purchased Receivables and promptly inform
Buyer of any breach or default by Seller or any Approved Customer of any of the
terms or provisions thereof;
(c) refrain from any action or omission which might in any way prejudice
or limit Buyer's rights under any of the Purchased Receivables or this
Agreement, including, without limitation, any extension to any Customer under a
Purchased Receivable of any payment terms under such Purchased Receivables and
from time to time, upon the request of Buyer, promptly and duly execute and
deliver any and all such further documents and instruments and render all such
(or further) assistance as Buyer may require for the purpose of enabling Buyer
to obtain the full benefit
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of each Purchased Receivable;
(d) make all disclosures required by any applicable law or regulation with
respect to the sale of the Purchased Receivables to Buyer, and account for such
sale in accordance with Generally Accepted Accounting Principles;
(e) maintain at all times one or more Approved Insurance Policies with
respect to the Purchased Receivables in full force and effect (and not amend or
alter the same without Buyer's prior written consent) with an aggregate coverage
amount of at least fifteen million Dollars ($15,000,000) (less any deductible or
risk retention which has been approved by Buyer) and comply with all
requirements thereunder, including, without limitation, the payment in full of
all premiums thereunder and the compliance with any and all actions, either
directly or indirectly, that prevent the creation of an exclusion under such
Approved Insurance Policy;
(f) in the event of any non-payment by a Customer of any Purchased
Receivable, promptly file a claim in respect thereof under an Approved Insurance
Policy, and concurrently therewith deliver to Buyer a copy of such notice of
claim;
(g) deliver to Buyer on the fifteenth (15th) day of each month, a report
summarizing, as of the last day of the previous month a certificate of an
authorized representative of Seller summarizing the aging of the Purchased
Receivables and including (i) copies of all reports submitted to any insurance
company that has issued an Approved Insurance Policy which reports shall include
the status of any and all pending claims under such approved Insurance Policies;
and (ii) such other information in summary form as may be requested by Buyer, as
well as a certification as to the compliance by Seller of all terms and
provisions contained in this Agreement;
(h) to the extent that it is necessary in order to ensure the legality,
validity, enforceability or admissibility in evidence of the assignment,
delivery and sale by Seller to Buyer of the invoices and other documents or
instruments representing the Eligible Receivables and Purchased Receivables, pay
any Required Tax with any required stamps affixed;
(i) except as expressly provided herein, not create or permit to subsist
any mortgage, charge, pledge, security interest, lien or other encumbrance over
all or any of Seller's or Buyer's rights, title and interest in and to any of
the Purchased Receivables;
(j) permit representatives of Buyer to examine records and documents of
the Seller relating to the Purchased Receivables and any Approved Insurance
Policies and to make copies thereof or abstracts therefrom, and at any time
during normal business hours upon reasonable advance notice to Seller; provided,
however, that if an Event of Repurchase has occurred hereunder and is
continuing, Buyer shall be permitted to examine the relevant corporate,
financial and operating records of Seller, including, without limitation, all
documents and reports related to any Approved Insurance Policy, and make copies
thereof or abstracts therefrom, and to discuss their affairs, finances and
accounts with Seller's directors, officers, employees and independent public
accountants, at any time during normal business hours;
(k) duly perform and comply with all material terms, provisions and
obligations of any Sales Contracts;
(l) immediately notify Buyer of the occurrence of any event that
constitutes, or any event that with the giving of notice or the passage of time
would constitute, an Event of Repurchase;
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and
(m) give notice in writing to Buyer within ten (10) days of any change in
the principal place of business of Seller to a location outside the County of
Santa Xxxxx.
ARTICLE 8
EXPENSES; CHARGEBACKS; SETOFF AND SECURITY
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8.1 Expenses. Seller shall reimburse Buyer for (a) any and all reasonable
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costs or expenses incurred by or on behalf of Buyer, including legal fees and
expenses in the preparation and consummation of this Agreement, (b) any and all
reasonable costs or expenses incurred by or on behalf of Buyer, including legal
fees and expenses in the protection of rights under, and/or enforcement of, this
Agreement, (c) all Required Taxes at any time payable in connection herewith,
and (d) all other taxes (other than those measured by income) or penalties or
other charges which Buyer may be required to pay in connection with this
Agreement or any transaction carried out in connection herewith; all such
amounts being due and payable upon posting to Seller's accounts by Buyer.
8.2 Chargebacks. So long as Seller is collection agent hereunder, Seller
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will promptly notify Buyer of, and promptly settle, all Disputes with Approved
Customers. However, if any Dispute is not settled by Seller during the Waiting
Period (as such term is defined in an approved Insurance Policy) or within such
shorter period as Buyer may determine, in its sole discretion, Buyer may settle,
compromise or litigate such dispute in Buyer's or Seller's name, upon such terms
as Buyer in its sole discretion deems advisable and for Buyer's account and
risk.
8.3 Setoff; Security.
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(a) Upon the occurrence of an event giving rise to a right of
indemnification under Section 10.2(b) or an Event of Repurchase, Buyer is
irrevocably authorized to setoff and charge to the accounts of Seller maintained
at Xxxxx Fargo (and against any credit balance on the books of Buyer in Seller's
favor, whether matured or unmatured) the amount of any and all of the
obligations owed by Seller under this Agreement.
(b) In the event that notwithstanding the intention of the parties that
this transaction be treated as a purchase and sale of the Purchased Receivables,
Seller hereby grants to Buyer a security interest in, and right of set-off with
respect to, certain property which shall be identified on a schedule (the
"Collateral Schedule") at the time of Buyer's purchase of Eligible Receivables,
to the extent that Seller has any right, title or interest therein
(collectively, the "Collateral"), which property shall include those present or
future accounts, instruments, documents, chattel paper and general intangibles
(other than intellectual property) specifically listed on the Collateral
Schedule. All of the Collateral shall secure payment and performance of all of
Seller's obligations at any time owing to Buyer, fixed or contingent, arising
under this Agreement or by operation of law or otherwise, including, without
limitation, charges or chargebacks arising from Disputes or otherwise; costs and
expenses (including attorneys' fee and expenses) incurred in enforcing,
protecting or administering any of Buyer's rights under this Agreement, or in
the prosecution or defense of any action relating to this Agreement or to any
Purchased Receivable; amounts recovered from Buyer on account of payments
previously made by Approved Customers on Purchased Receivables (other than any
disgourgement of payments required as a preference under the Bankruptcy Code);
and any taxes
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(other than those measured by income) or penalties or other charges which Buyer
may be required to pay in connection with this Agreement or any transaction
carried out in connection herewith.
ARTICLE 9
EVENTS OF REPURCHASE
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If any of the following events ("Events of Repurchase") shall occur and be
continuing:
(a) any representation or warranty made or deemed made or repeated by
Seller in connection with this Agreement (other than those specified in
subclause (c) below) shall prove to have been incorrect in any material respect
when made or deemed made or repeated or Seller shall fail to pay any amount
payable by it under this Agreement when due; or
(b) Seller shall fail to perform or observe any other material term,
covenant or agreement contained in this Agreement (other than those specified in
subclause (d) below) or its part to be performed or observed, or
(c) any representation or warranty made or deemed made or repeated by
Seller in connection with Sections 6(d), (h) or (i) of this Agreement shall
prove to have been incorrect in any material respect when made or deemed made or
repeated or Seller shall fail to pay any amount payable by it under this
Agreement when due; or
(d) Seller shall fail to perform or observe any other material term,
covenant or agreement contained in Sections 7(c), (e), (f), (h) or (i) of this
Agreement or its part to be performed or observed, or
(e) there is any material Dispute as to any Purchased Receivable; or
(f) Buyer shall not have received payment in full of any Purchased
Receivable within the time period required by the Purchased Receivable (i) from
the account debtor or (ii) if such amount is payable under any Approved
Insurance Policy, under an Approved Insurance Policy;
then, (i) in any such event listed in subclauses (a) and (b) Seller will, at the
time, in the manner and otherwise as hereinafter set forth, repurchase and pay
for the Purchased Receivables then outstanding but only at the option and upon
the demand of Buyer to the extent that Buyer has not received payment with
respect to such Purchased Receivables whether from or on behalf of the Customer
with respect thereto or under one or more Approved Insurance Policies; and (ii)
in the events listed in subclauses (c) through (f), Seller will, at the time, in
the manner and otherwise as hereinafter set forth, repurchase and pay for the
Purchased Receivable(s) to which such event relates at the option and upon the
demand of Buyer to the extent that Buyer has not received payment with respect
to such Purchased Receivable(s) whether from or on behalf of the Customer with
respect thereto or under one or more Approved Insurance Policies.
Notwithstanding any other term hereof, (A) except as provided in subclause (B)
of this sentence the aggregate amount of the payments made by Seller to Buyer as
a result of an event listed in subclause (f) shall not exceed in the aggregate
for all such events the sum of (i) five percent (5%) of the Net Invoice amount
of the Purchased Receivable(s) on the Purchase Date for such Purchased
Receivable, and (ii) five hundred thousand Dollars ($500,000) (such sum the
"Repurchase Limit"), and in any case in which such non-payment of Purchased
Receivable(s) exceeds the Repurchase Limit, then Buyer, in its sole and absolute
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discretion, shall determine which particular Purchased Receivable(s) as to which
an Event of Repurchase has occurred are to be repurchased and paid for by Seller
in an amount not to exceed the Repurchase Limit; and (B) to the extent that any
insurance company that has issued an Approved Insurance Policy fails to make
payment under such Approved Insurance Policy for any reason (x) arising from (i)
any failure of the Seller to perform any of its obligations under any Approved
Insurance Policy, (ii) any material misstatement by the Seller in any
communication by the Seller to the issuer of any Approved Insurance Policy,
(iii) any other act or omission by the Seller in violation of any Approved
Insurance Policy that results in the issuer of such Approved Insurance Policy
failing to pay a claim thereunder or (iv) any exclusion under an Approved
Insurance Policy that results from any event or action caused or under the
control of Seller, and (y) such item in subclauses (i), (ii), (iii) or (iv)
above constitutes a breach by Seller of any representation, warranty or covenant
under this Agreement, then the Repurchase Limit shall not apply and the Buyer
may require the Seller to repurchase each of the Purchased Receivables for which
payment under an Approved Insurance Policy was not made for the reasons stated
above. Such purchase shall be made at the time specified by Buyer at a
repurchase price equal to the unpaid aggregate principal amount then outstanding
plus unpaid interest and any other amount payable in accordance with the terms
of such Purchased Receivables accrued to the date of repurchase or with the
terms of this Agreement. The repurchase price of the Purchased Receivables
repurchased by Seller pursuant to this article shall be paid in immediately
available funds without recourse to or warranty by Buyer. Upon any such
repurchase, the Buyer shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, as shall be necessary to vest in the
Seller title to any Purchased Receivable that is repurchased hereunder.
Notwithstanding any other term hereof, in the case of the occurrence of an event
listed in subclause (f), and to the extent that an insurance company that has
issued an Approved Insurance Policy is declared bankrupt or insolvent and does
not pay a claim as the result thereof, then Seller shall have no obligation to
repurchase and pay for the Purchased Receivables to the extent such insurance
company is obligated to pay such amount under such Approved Insurance Policy but
has not done so as a result of its bankruptcy or insolvency.
ARTICLE 10
MISCELLANEOUS
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10.1 Assignment and Transfer. Seller may not assign or otherwise transfer
-----------------------
any of its rights, benefits or obligations under this Agreement. Buyer may
assign or otherwise transfer all or any part of its rights, benefits and
obligations under this Agreement and all or any part of the Purchased
Receivables and it may disclose to each potential assignee or other transferee
such information about this transaction as Buyer may consider appropriate.
Buyer agrees to promptly notify Seller in writing of any such assignment or
transfer.
10.2 Indemnification.
---------------
(a) Currency Indemnities. If Buyer receives an amount in respect of any
--------------------
Purchased Receivable, or if any liability relating to any Purchased Receivable
is converted into a claim, proof, judgment or order in Buyer's favor, in a
currency other than the U.S. Dollar or in a U.S. Dollar amount less than the
U.S. Dollar amount payable in respect thereof,
(i) Seller shall indemnify Buyer as an independent obligation
against any loss or liability arising out of or as a result of the
conversion into U.S. Dollars of such amount received;
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(ii) if the amount received by Buyer is less than the U.S. Dollar
Equivalent for such Purchased Receivable as calculated in accordance with
Section 2.2 above and set forth on the U.S. Dollar Equivalent Schedule,
Seller shall forthwith on demand pay to Buyer an amount in U.S. Dollars
that is equal to the difference between such amount received and the U.S.
Dollar Equivalent for such Purchased Receivable; and
(iii) Seller shall pay to Buyer forthwith on demand any exchange
costs and taxes payable in connection with any such conversion.
The foregoing amounts payable to Buyer shall bear interest at a rate of
6.5625% to the date such amounts are paid to Buyer.
(b) Other indemnities. Seller shall indemnify on demand and hold Buyer
-----------------
harmless from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, costs, expenses and disbursements
of any kind or nature whatsoever, including the fees and disbursements of
counsel, and including, without limitation, in connection with any
investigative, administrative or judicial proceeding, whether or not Buyer shall
be designated a party thereto and including due to a dispute between Seller and
any Approved Customer, imposed on, incurred by, or asserted against Buyer in any
manner relating to or arising out of this Agreement, or the transactions
contemplated hereby, except to the extent caused by Buyer's gross negligence or
willful misconduct.
10.3 Assistance. In case of non-payment of any of the Purchased
----------
Receivables for any reason, Seller undertakes to assist Buyer and use its best
efforts to collect the outstandings, and if necessary to seize on behalf of
Buyer any assets belonging to Approved Customers.
10.4 Waivers in Writing. No waiver, alteration, modification or
------------------
termination of this Agreement or any of the provisions hereof shall be binding
unless made in writing and duly executed by each Seller and Buyer.
10.5 Notices. Any notice that Buyer or Seller may be required or may
-------
desire to give to the other parties under any provision of this Agreement shall
be in writing and sent by electronic facsimile transmission, hand delivery or
first class mail, certified or registered and postage prepaid, and shall be
deemed to have been given or made when transmitted with receipt confirmed in the
case of electronic facsimile transmission, when received if sent by hand
delivery or five (5) days after deposit in the U.S. Mail if mailed, and in each
case addressed to Buyer or Seller as set forth below. Either Buyer or Seller
may change the address to which all notices, requests and other communications
are to be sent to it by giving written notice of such address change to the
other in conformity with this paragraph, but such change shall not be effective
until notice of such change has been received by the other.
If to Buyer: Xxxxx Fargo HSBC Trade Bank N.A.
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx Xxxxx
If to Seller: P-COM, INC.
0000 Xxxxx Xxxxxxxxxx Xxxx.
Xxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
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Attention: Chief Financial Officer
10.6 Exercise of Rights. No failure on the part of Buyer to exercise, no
------------------
course of dealing with respect to, and to delay in exercising, any right, power
or privilege under this Agreement shall operate as a waiver thereof nor shall
any single or partial exercise of any such right, power or privilege preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege.
10.7 Headings. The headings of Articles and Sections have been included
--------
herein for convenience only and shall not be considered in interpreting this
Agreement.
10.8 Prohibited Provisions. Any provision of this Agreement which is
---------------------
prohibited or unenforceable in any jurisdiction shall not invalidate the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.9 Counterparts. This Agreement may be signed in any number of
------------
counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument.
10.10 Entire Agreement. This Agreement constitutes and contains the
----------------
entire agreement of the parties with respect to the subject matter hereof and
thereof, and supersedes any and all prior negotiations, correspondence,
understandings and agreements respecting the subject matter hereof and thereof.
10.11 Cumulative Rights and Remedies. All rights and remedies of Buyer or
------------------------------
Seller provided for in this Agreement are cumulative and are not exclusive of
any other rights and remedies provided by law or in equity or under any other
agreement.
ARTICLE 11
LAW AND JURISDICTION
--------------------
This Agreement is made in the State of California and shall be interpreted
according to the internal laws of said State without regard to the laws
concerning conflicts of law. Seller waives the right to trial by jury, and
consent to the nonexclusive jurisdiction of the courts of the State of
California with respect to any controversy arising out of or relating to this
Agreement or to any transaction in connection herewith, and irrevocably submit
to the jurisdiction of such courts and
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agrees that any right, judgment or other notice of legal process shall be
sufficiently served on Seller if sent to Seller at the address provided above.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by its duly authorized officers as of the date first
above written.
P-COM, INC.
By ____________________________
Its ____________________________
XXXXX FARGO HSBC TRADE BANK N.A.
By ____________________________
Its ____________________________
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EXHIBIT A
Receivables Purchase Agreement
PART A - APPROVED COUNTRIES
1. United Kingdom
2. Germany
3. Italy
PART B - APPROVED CUSTOMERS
1. Italtel SPA
2. Fujitsu Limited
3. Bosch Telecom Gmbh
4. Lucent Technologies
5. Ericsson Limited
6. Mercury Communications Ltd.
EXHIBIT B
Receivables Purchase Agreement
APPROVED INSURANCE POLICY OR POLICIES
EXHIBIT C
Receivables Purchase Agreement
SCHEDULE OF DOCUMENTS
1. Duly executed copies of this Agreement.
2. Duly executed copy of the Facility Letter.
3. Schedule of Accounts, including U.S. Dollar Equivalent Schedule.
4. Collateral Schedule.
5. Incumbency certificate and certified resolutions from the Secretary or
Assistant Secretary of Seller, in form and substance satisfactory to Buyer.
6. Good standing certificates from the California and Delaware Secretaries of
State, certifying that Seller is in good standing and has paid all
franchise taxes.
7. Duly executed copies of all Approved Insurance Policies.
8. A signed legal opinion of Xxxxxxx, Phleger & Xxxxxxxx LLP, counsel to
Seller, in form and substance satisfactory to Buyer, including, without
limitation, a legal opinion as to the characterization of the transaction
as a true sale.
