EXHIBIT 10a
FACTORING AGREEMENT
AGREEMENT between Able Laboratories, Inc., an Delaware corporation having its
principal place of business at 0 Xxxxxxxxx Xxxxx, Xxxxx Xxxxxxxxxx, XX 00000 ,
hereinafter "Seller", and K & L Financial, Inc., an Illinois corporation, 00
Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000, hereinafter "Purchaser".
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. PURCHASE OF ACCOUNTS. From time to time, Seller may tender to Purchaser some
or all of its Accounts which are defined as Seller's rights to payment for goods
sold or leased or services rendered. All of Seller's said Accounts, irrespective
of whether same are purchased by Purchaser are herein called "Account(s)".
Purchaser is not obligated to purchase any Account tendered and shall have the
right to purchase such Accounts tendered as Purchaser, in its sole and absolute
discretion, shall determine. Purchaser will evidence its agreement to purchase
specific Account(s) tendered by issuance of its check or wire transfer to Seller
in the amount set forth in Paragraph 2 hereof and by its issuance of a Schedule
Status Report upon which Purchaser, in its sole and absolute discretion, shall
have the right to group said Accounts tendered. Said grouped accounts are
hereinafter collectively called Purchased Account(s).
2. PAYMENT FOR ACCOUNTS. Upon acceptance of an Account for purchase, Purchaser
shall pay to Seller, as the Purchase Price for the Purchased Account, an amount
equal to eighty (80) percent of the face amount thereof (or such lesser
percentage as Purchaser and Seller shall agree upon). Seller shall deliver the
original invoices relating to Purchased Accounts to Purchaser at such time, and
such Purchased Accounts shall be deemed sold and assigned to Purchaser at such
time without any formal assignment being required.
3. CHARGES. In consideration of the purchase of said Purchased Accounts, Seller
agrees to pay charges (Charges) to Purchaser with respect to each Purchased
Account of an amount equal to the sum of: (a) zero (0) percent of the face
amount thereof; plus (b) an amount equal to one ( 1 ) percent of the face amount
thereof for each 10 day period or part thereof, calculated from the date of
purchase until payments received by Purchaser in collected funds on said
Purchased Account equals the Purchase Price of the Purchased Account plus all
Charges due Purchaser from Seller at that time. (Funds are considered collected
4 business days after receipt assuming same is in fact collected).
4. PAYMENT TO SELLER UPON COLLECTION. Provided Seller is not and has not been in
default to Purchaser hereunder, upon Purchaser's receipt of payment(s) on
Purchased Accounts of an aggregate amount in excess of the aggregate Purchase
Price thereof plus all Charges and other amounts then due Purchaser, Purchaser
shall pay to Seller an amount equal to the difference between the amount of such
collections less (a) amounts previously paid by Purchaser to Seller as the
Purchase Price of such Purchased Accounts (b) any Charges or other amounts then
due Purchaser from Seller, and (c) any reserves Purchaser elects to establish to
secure payment of any other Purchased Accounts.
5. POWER OF ATTORNEY. At any time after purchase of a Purchased Account,
Purchaser shall have the right to notify Account Debtors [the party(ies)
obligated to pay an Account] of Purchaser's rights with respect to the Accounts
and to notify Account Debtors to make payment of the Accounts directly to
Purchaser. Purchaser shall also have the right in its name to compromise or
extend the time for payment of any Account for such amounts, and upon such terms
PLEASE INITIAL HERE
_______
- Factoring Agreement. page 2 of 5.
as Purchaser may determine; to demand, collect, receive and xxx for any and all
amounts due or to become due on the Accounts; and to take control of cash and
other proceeds of any Accounts. Seller hereby constitutes Purchaser's President,
or any other person designated by Purchaser, as Seller's attorney-in-fact with
full authority to act for Seller; to endorse Seller's name upon notes,
acceptances, checks, drafts, money orders or other evidences of payment or
collateral that may come into Purchaser's possession; to sign Seller's name on
any invoice, freight xxxx, xxxx of lading, storage or warehouse receipt, or
other instrument or document in respect to any Account, to sign Seller's name on
UCC financing statements and on notices to Account Debtors; to send notices and
verifications of Accounts to and collect Accounts from Account Debtors; and to
open Seller's mail and take payments for Accounts. Seller shall in all other
ways do all acts and things necessary or appropriate to protect, preserve and
realize upon the Accounts for the benefit of Purchaser and to carry out this
Agreement and shall not interfere, directly or indirectly, with any of the
rights given Purchaser in this paragraph. Seller hereby ratifies and approves
all acts of such attorney or designee, and such attorney shall not be liable for
any acts of omission or commission, nor for any error of judgment or mistake of
fact or law. The powers granted in this paragraph are coupled with an interest
and are irrevocable while any Purchased Accounts are unpaid or sums are
otherwise owed by Seller to Purchaser and until this agreement is terminated.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS. To induce Purchaser to purchase
Accounts from Seller, with full knowledge that the truth and accuracy of the
following are being relied upon by the Purchaser in the purchase of and payment
for the Purchased Accounts, Seller represents, warrants and covenants to
Purchaser and agrees that: (a) Seller is the sole and absolute owner of each
Account and has full legal right to make said sale, assignment and transfer
thereof hereunder; (b) The correct amount owed on each Account is as set forth
on the document tendering such Account to Purchaser and such amount is not in
dispute; (c) The payment of each Account is not contingent upon the fulfillment
of any obligation or condition, past or future, and any and all obligations
required of the Seller with regard to such Account have been fulfilled by
Seller, (d) Each Account is based on an actual sale and delivery of goods and/or
services actually rendered for which an invoice has been tendered to the Account
Debtor, is presently due and owing to Seller, is not past due or in default, has
not been previously sold, assigned, transferred or pledged, and is free of any
encumbrance or lien; (e) There are no defenses, offsets, or counterclaims with
respect to any of the Accounts and no agreement has been made under which the
Account Debtor may claim any deduction or discount, except as otherwise stated
in any of the invoices submitted to Purchaser in connection with the tender of
such Account for purchase; (f) Upon purchase, Seller will convey to Purchaser
good and marketable title to each Purchased Account free and clear of all liens
and encumbrances which shall thereafter be the sole and exclusive property of
the Purchaser. Each Account shall be the property of the Purchaser and shall be
collected by Purchaser, but if for any reason it should be paid to Seller,
Seller shall promptly notify Purchaser of such payment, shall hold any checks,
drafts, or monies so received in trust for the benefit of Purchaser, and shall
promptly endorse, transfer and deliver the same to the Purchaser, however, in
addition to Purchaser's other remedies, failure to deliver said payment in kind
to Purchaser within five business days of receipt may result, at Purchaser's
option, in an additional charge to be paid by Seller to Purchaser of twenty
percent of said payment; (g) Each Account Debtor is not insolvent as that term
is defined in the United States Bankruptcy Code; (h) The Seller's place of
business and the place where the records concerning all Accounts herein referred
to are kept is the one set forth at the beginning of this Agreement, Seller will
promptly advise Purchaser in writing if such place of business or record keeping
is changed or a new place of business or record keeping is added; (i) All
Accounts, now existing or hereafter arising, shall comply with each and every
one of the representations, warranties, covenants and agreements referred to in
this Paragraph and as otherwise supplemented pursuant to this Agreement; (j) All
sales and other taxes imposed with respect to the Accounts have been remitted by
Seller to the proper taxing authority; (k) All invoices with respect to
Purchased Accounts shall state that the Account is payable to Purchaser; (1) no
Purchased Account is evidenced by a note or other instrument. Seller hereby
agrees to indemnify and hold harmless Purchaser from and against any and all
losses, claims, demands, liabilities, suits, actions, causes of action,
administrative proceedings or costs (including attorneys' fees and costs and
expenses of defense) arising out of (a) any breach or violation of any
representation, guarantee or warranty set forth in this Agreement, (b) any
rejection
PLEASE INITIAL HERE
_______
Factoring Agreement. page 3 of 5.
of goods or services or alleged claims, defenses or offsets of every kind and
nature by any Account Debtor, or (c) any other breach or violation of this
Agreement by Seller.
7. ASSUMPTION OF RISK. Seller hereby assumes full risk of non-payment, and
hereby unconditionally guarantees the full and prompt payment of the full face
amount of all Purchased Accounts. If any Purchased Account shall remain unpaid
after ninety (90) days from the date of Seller's original invoice evidencing
same, or if Purchaser shall otherwise deem itself insecure for any reason
whatsoever, or if any Account Debtor shall become bankrupt, insolvent or the
subject of a reorganization, or makes an assignment for the benefit of
creditors, then or any time thereafter, Purchaser, upon notice to Seller, may
require Seller to repurchase within five (5) days thereafter, such Purchased
Account(s) in which event Seller shall pay to Purchaser an amount equal to the
uncollected balance of such Purchased Account plus Purchaser's costs relating to
the collection of such Purchased Account plus all other Charges and amounts owed
to Purchaser hereunder with respect thereto. Seller's obligations hereunder
shall not be affected by Purchaser's actions or inaction with respect to such
Accounts.
8. SECURITY INTEREST. As security for the performance of all Seller's present or
future obligations to Purchaser, whether hereunder or otherwise, including, but
not limited to the payment of all amounts owing Purchaser including, but not
limited to, all amounts due Purchaser from Seller pursuant to Paragraph 9
hereof, and to secure the repayment by Seller to Purchaser of any amounts which
Purchaser, at its option, may hereafter loan to Seller independent of this
agreement, Seller hereby grants to Purchaser a first priority security interest
in all of Seller's presently owned or hereafter acquired assets including,
without limitation, all accounts, accounts receivable, investment property,
contract rights, chattel paper, general intangibles, instruments, documents,
intellectual property, deposit accounts, inventory including all claims against
any supplier, equipment, furniture, fixtures, and all books, records
(computerized or manual) and computer software in connection with all the
foregoing, and all proceeds and products of the foregoing including, but not
limited to insurance proceeds, lock box contents and proceeds, and deposit
accounts. The security interest specifically includes, without limitation,
Sellers' rights to any returned and repossessed personal property from Account
Debtors and also shall include all rights of replevin, reclamation, and stoppage
in transit and all rights as a seller of goods. In the event of any default by
Seller under this Agreement and/or pursuant to any loan which Purchaser may make
to Seller, Purchaser shall have all rights with respect to the aforesaid
collateral of a secured party under the Uniform Commercial Code of the state in
which Seller is located. In recognition of the Purchaser's right to have all
amounts due it in connection with this Agreement secured by the aforesaid
collateral, Purchaser shall not be required to record any terminations or
satisfactions of any of Purchaser's liens on the aforesaid collateral unless and
until Seller has executed and delivered to Purchaser a general release in a form
reasonably satisfactory to Purchaser. Seller agrees that it will execute and
deliver to Purchaser such documents, including financing statements, all in form
satisfactory to Purchaser, as Purchaser shall, from time to time desire to
perfect the security interest granted to it hereunder. In addition, at
Purchaser's request Seller agrees to enter into and execute, a lock box
agreement with a bank designated by Purchaser in form satisfactory to Purchaser
to be applicable to the full term of this Agreement and thereafter so long as
any amounts are, or may be, owed to Purchaser hereunder.
9. DEFAULT AND REMEDIES. The occurrence of any one or more of the following
events shall constitute a default ("Default") of this Agreement by Seller: (i)
failure of Seller to repurchase any Purchased Account when required pursuant to
Paragraph 7 hereof; (ii) the failure of Seller to perform any other covenant or
agreement contained herein; (iii) any warranty or representation of Seller made
herein shall be untrue; (iv) dissolution or termination of existence of Seller;
(v) death of any Seller if Seller shall be an individual; (vi) Seller shall file
or have filed against it a petition in bankruptcy or for reorganization or
adjustment of its debts or if Seller shall make an assignment for the benefit of
creditors; (vii) a tax lien shall be filed against Seller; (viii) a judgment
shall be entered against Seller which is not promptly satisfied or if a levy
attachment shall be filed against Seller or its property; and/or (ix) if
Purchaser shall
PLEASE INITIAL HERE
_______
Factoring Agreement. page 4 of 5.
deem itself insecure for any reason whatsoever. In the event a Default shall
occur: i) Purchaser shall have the right to require Seller to immediately
repurchase all of the Purchased Accounts for an amount equal to the sum of the
aggregate unpaid balances of all the Purchased Accounts then owned by Purchaser
plus all Charges and other amounts due Purchaser hereunder; ii) Seller shall pay
to Purchaser all other damages costs and losses caused to it by reason of such
Default, including, but not limited to reasonable attorneys' fees, court costs,
other collection expenses and all other expenses and costs incurred or paid by
Purchaser to obtain performance or to enforce any covenant or agreement of
Seller hereunder; and iii) Purchaser shall have the right to enforce all rights
which it may have with respect to the security interest granted to it pursuant
to this Factoring Agreement and specifically, but not by way of limitation, to
notify all Account Debtors of Seller's Accounts to make all payments directly to
Purchaser, to notify and require the U.S. Post Office to deliver Seller's mail
to Purchaser, and to open Seller's mail and take and endorse for deposit in the
name of Seller all payments received upon any of Seller's Accounts and to
deposit same for benefit of Purchaser.
In addition to the Charges provided for elsewhere herein, Seller shall pay
Purchaser a late payment charge equal to eighteen per cent ( 18%) per annum of
any amounts not paid when due to the date of payment thereof. To the extent
permitted by law, Seller hereby irrevocably authorizes any attorney of any court
of record to appear for Seller in such court, in term time or vacation, at any
time after a default hereunder and confess judgment against Seller, without
process in favor of Purchaser, its successors or assigns, for such amount as may
appear due, owing and unpaid hereunder, together with costs of collection
including reasonable attorney's fees, and to waive and release all errors which
may intervene in any such proceedings, and consent to immediate execution upon
such judgment, hereby ratifying and confirming all that said attorney may do by
virtue hereof.
10. TERM AND TERMINATION. This Agreement shall commence as of the date hereof
end and shall continue in force and effect beginning from the date that the
first Purchased Account is purchased and continuing for a period of twelve (12)
months (Initial Term) and shall be automatically renewed for successive periods
of one (1) months (Renewal Term) unless terminated as follows: Seller may
terminate this agreement by so notifying Purchaser in writing 30 days before the
end of any Initial or Renewal term hereof, provided, however, that all of
Purchaser's security interests in assets of Seller as provided for in this
Factoring Agreement and otherwise and all other rights pursuant to Paragraphs 5
and 8 above shall survive such termination until all of Seller's obligations to
Purchaser have been paid in full and discharged. Any and all of Seller's
representations, agreements, covenants, obligations, liabilities and
undertakings under this Agreement or any collateral agreements existing prior to
any termination hereof shall not be affected by a termination of this agreement
and shall survive such termination. Seller agrees that if Purchaser has not
purchased Accounts during any Initial or Renewal Term hereof which, in the
aggregate, exceed $ n/a (Minimum Amount), Seller agrees to pay to Purchaser, on
demand, an additional amount equal to what the Charges provided for elsewhere
herein would have been on said Minimum Amount assuming the number of days from
the date of purchase of said Minimum Amount until receipt of payment of said
Minimum Amount is n/a days, less the actual Charges paid by Seller to Purchaser
during said Initial or Renewal Term. Seller will not, during the term of this
Agreement, sell, transfer, pledge, create a security interest in or hypothecate
any of its Accounts to any party other than Purchaser.
11. NOTICES. Notices required or permitted hereunder shall be in writing and
shall be given by personal delivery or certified or registered mail, postage
prepaid, to the parties at their addresses hereinabove set forth. Such notice
shall be deemed given when delivered or mailed as aforesaid. Either party shall
have the right to change its address by notice as herein provided.
PLEASE INITIAL HERE
_______
Factoring Agreement page 5 of 5.
12. CONSTRUCTION. The laws of Illinois shall govern the construction of this
Agreement and the rights, remedies, duties and obligations of the parties hereto
with respect to all transactions hereunder. Any matter or controversy between
Seller and Purchaser may be litigated in the state or federal courts located at
Chicago, Illinois and each party hereby submits to the jurisdiction of such
courts. Any claim or controversy asserted by Seller against Purchaser shall only
be litigated in the state or federal courts located at Chicago, Illinois. TO THE
EXTENT PERMITTED BY LAW, SELLER AND PURCHASER WAIVE THEIR RIGHT TO TRIAL BY
JURY.
13. ASSIGNMENT BY PURCHASER. Purchaser, without notice to Seller, may assign
and/or pledge all of Purchaser's rights hereunder to Purchaser's lender
(Assignee). Seller hereby consents to any such Assignment and agrees that in
such event, upon request of Assignee, it will render all acts, performance and
payment directly to Assignee, and that said Assignee shall have all of
Purchaser's rights hereunder but none of Purchaser's obligations.
14. GENERAL. Waiver by Purchaser of any breach or default of this Agreement or
of any warranty, representation, covenant, obligation or guaranty herein shall
not be construed as waiver of any subsequent breach or default. Failure by
Purchaser to exercise any right or remedy hereunder shall not operate as a
waiver of any subsequent breach or default. All rights and remedies are
cumulative and not alternative. This Agreement contains the entire agreement of
the parties and may not be modified except by a written agreement executed by
Seller and Purchaser.
15. SEVERABILITY. If any provision of this Agreement is held or found to be
illegal, invalid or unenforceable, all other provisions shall nevertheless
continue to be binding on the parties hereto and shall be of full force and
effect.
SELLER: Able Laboratories, Inc.
BY:X /s/ Xxxx X. Xxxx President DATE September 30, 1998
----------------------------- ------------------
Xxxx X. Xxxx (Title)
Accepted at Northbrook, IL this 2nd day October 1998
PURCHASER: K & L Financial, Inc.
BY:X /s/ Xxx Xxxxxxx President
------------------------------
Xxx Xxxxxxx (Title)
