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EXHIBIT 10.17
FACTORING AGREEMENT
This Factoring Agreement (the "Agreement"), dated as of June 7, 2000, is
entered into by and between Resourcephoenix, Inc., a California corporation
("Seller") having its principal place of business and chief executive office at
the address set forth below Seller's signature, and Pacific Business Funding, a
division of Cupertino National Bank ("Purchaser") having an office at the
address identified above.
Capitalized terms used in this Agreement shall have the meanings assigned to
them in Section 13, Definitions.
1. PURCHASE OF ACCOUNTS.
1.1 SCHEDULE OF ACCOUNTS. Seller may, at any time, request that
Purchaser purchase Accounts. Any such request by Seller shall be made by
delivering to Purchaser a Schedule of Accounts (the "Schedule of Accounts")
which describes in detail the Accounts Seller is requesting Purchaser to
purchase, including, (a) the name and address of the Account Debtor of each such
Account, (b) the amount owed by the Account Debtor of each such Account, and (c)
the date and number of the invoice evidencing each such Account. Each Schedule
of Accounts shall have attached to it an invoice for each Account described on
the Schedule of Accounts, and shall be signed by an authorized representative of
Seller.
1.2 DISCRETIONARY APPROVAL OF ACCOUNTS. Purchaser may, in its sole
discretion, purchase any Account included in a Schedule of Accounts, but is
under no obligation to purchase any such Account. Purchaser may exercise its
sole discretion in approving each Account and the credit of each Account Debtor
before purchasing any Account.
1.3 PAYMENT OF ADVANCE; CREATION OF A BOOK RESERVE. Upon approval, in
Purchaser's sole discretion, of any of the Accounts described on a Schedule of
Accounts, Purchaser shall pay to Seller as the purchase price for any approved
Account eighty percent (80%) of the face amount of such approved Account (the
"Advance"). Purchaser may, from time to time, in its discretion, upon notice to
Seller, change the percentage of the Advance. Upon payment of the Advance to
Seller, Purchaser shall also create a reserve on Purchaser's books and records
with respect to each Purchased Account in an amount equal to the face amount of
the Purchased Account minus the Advance for such Purchased Account (the
"Reserve"). Notwithstanding the foregoing, in no event shall the Reserve with
respect to all Purchased Accounts outstanding at any time be less than twenty
percent (20%) of the Account Balance. Purchaser may, in its discretion, upon
notice to Seller, increase the percentage of the Reserve at any time.
1.4 TRANSFER OF ACCOUNTS. At the time Purchaser pays the Advance with
respect to any Account, such Account shall constitute a Purchased Account, and
Seller hereby absolutely sells, transfers and assigns to Purchaser, all of
Seller's right, title and interest in and to each Purchased Account. Seller also
hereby sells, transfers and assigns to Purchaser all of the goods represented by
each Purchased Account, all of Seller's rights and remedies as an unpaid seller
under the California Uniform Commercial Code and other applicable law, including
the rights of stoppage in transit, replevin, reclamation, and claim and
delivery, and all of Seller's rights in and to all security for each such
Purchased Account and guaranties thereof, and all rights against third parties
with respect thereto. Any goods recovered or received by Seller shall be set
aside, marked with Purchaser's name, and held for Purchaser's account as owner.
1.5 COLLECTION OF ACCOUNTS. Each Purchased Account shall be collected
directly by Seller and remitted to in kind to Purchaser. However, should Seller
be in default of this agreement, Purchaser and or the Seller will jointly or
independently notify each Account Debtor by letter that Purchased Accounts owed
by such Account Debtor have been assigned and are payable to Purchaser. Such
notification shall be in form and substance satisfactory to Purchaser. Seller
shall not take or permit any action to change or revoke any notification without
Purchaser's prior written consent and shall not request any Account Debtor to
pay any Purchased Account to Seller. Notwithstanding the foregoing, in the event
Seller receives any payments of any Purchased Accounts, Seller shall (A)
immediately notify Purchaser of such payment, (B) hold such payment in trust and
safekeeping for Purchaser, and (C) immediately turn over to Purchaser the
identical checks, monies or other forms of payment received, with any necessary
endorsement or assignment. Purchaser shall have the right to endorse Seller's
name on all payments received in connection with each Purchased Account and on
any other proceeds of Collateral. If Purchaser receives
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a check or item which is payment for both a Purchased Account and a
non-Purchased Account, the funds shall first be applied to the Purchased Account
and, so long as there does not then exist an Event of Default or an event that
with notice or lapse of time would constitute an Event of Default, the excess
shall be remitted to Seller. In the event Purchaser receives any other payments
of non-Purchased Accounts, Purchaser shall remit to Seller the collections of
such non-Purchased Accounts; PROVIDED, that if any Event of Default or event
that with notice or lapse of time or otherwise would constitute an Event of
Default then exists, Purchaser shall have no duty to remit any such collections,
which collections constitute Collateral, and may apply such collections to
reduce the Obligations.
1.6 FULL RECOURSE. The purchase by Purchaser of Purchased Accounts from
Seller shall be with full recourse against Seller. Seller shall be liable for
any deficiency in the event the Obligations exceed the amount of Purchased
Accounts and the other Collateral.
2. FEES AND CUSTOMER PAYMENTS.
2.1 FINANCE FEES. Seller shall pay to Purchaser on each Settlement Date,
a finance fee in an amount equal to one and one quarter percent (1.25%) per
month of the average daily Account Balance outstanding during the Settlement
Period ending on such Settlement Date (the "Finance Fees"). Such accrued Finance
Fees shall be netted against the Reserve as described in Section 3.3.
2.2 ADMINISTRATIVE FEE. Seller shall pay to Purchaser on each Settlement
Date, an Administrative Fee equal to one half percent (0.5%) of the face amount
of each Account purchased by Purchaser during the Settlement Period ending on
such Settlement Date (the "Administrative Fee"). All Administrative Fees shall
be netted against the Reserve as described in Section 3.3.
2.3 MAXIMUM LAWFUL RATE. In no event shall any charges that may
constitute interest hereunder exceed the highest rate permitted under applicable
law. In the event that a court of competent jurisdiction makes a final
determination that Purchaser has received interest hereunder in excess of the
maximum lawful rate, then such excess shall be deemed a payment of principal and
the interest payable hereunder deemed amended to the amount payable under the
maximum lawful rate.
2.4 CREDITING CUSTOMER PAYMENTS. Upon Purchaser's receipt of payment of
a Purchased Account, Purchaser shall promptly credit such customer payment (the
"Customer Payments") to the amount outstanding with respect to such Purchased
Account. Notwithstanding the foregoing, if any Customer Payment is subsequently
dishonored or Purchaser does not receive good funds for any reason, the amount
of such uncollected Customer Payment shall be included in the Account Balance as
if such Customer Payment had not been received, and Finance Fees shall accrue
thereon, and the credit to the specific Purchased Account shall be reversed.
Notwithstanding the foregoing, upon the occurrence of an Event of Default,
Purchaser shall apply all Customer Payments to Seller's Obligations under this
Agreement in such order and manner as Purchaser shall, in its sole discretion,
determine.
2.5 ACCOUNTING. Purchaser shall deliver to Seller after each Settlement
Date, a statement of Seller's account which shall include an accounting of the
transactions for that Settlement Period, including the amount of all Finance
Fees, Administrative Fees, Adjustments, Chargeback Amounts, Customer Payments
and Purchased Accounts. The accounting shall constitute an account stated and
shall be binding an Seller and deemed correct unless Seller delivers to
Purchaser a written objection within thirty (30) days after such accounting is
mailed to Seller.
3. ADJUSTMENT, CHARGEBACKS AND REMITTANCES.
3.1 ADJUSTMENTS. In the event any Account Debtor asserts any offset,
defense, counterclaim, dispute, discount, allowance, right of return, right of
recoupment, or warranty claim with respect to a Purchased Account, or pays less
than the face amount of such Purchased Account (each, an "Adjustment"),
Purchaser may, in its reasonable discretion, either (A) deduct the amount of the
Adjustment in calculating the Remittance, or (B) chargeback to Seller the
Purchased Account with respect to which the Adjustment is asserted. Seller shall
advise Purchaser promptly upon learning of any Adjustment asserted by any
Account Debtor.
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3.2 CHARGEBACKS. Purchaser shall have the right to chargeback to Seller
any Purchased Account:
(A) which remains unpaid ninety (90) calendar days after the
invoice date;
(B) with respect to which there has been a breach of any
warranty, representation, covenant or agreement set forth in this
Agreement;
(C) with respect to which the Account Debtor asserts any
Adjustment, or
(D) which is owed by an Account Debtor who has filed, or has had
filed against it, any bankruptcy case, insolvency proceeding,
assignment for the benefit of creditors, receivership or
insolvency proceeding, or who has become insolvent (as defined in
the United States Bankruptcy Code) or who is generally not paying
its debts as such debts become due.
Upon demand by Purchaser, Seller shall pay to Purchaser the amount of any
Advance which has been charged back to Seller pursuant to this Section 3.2, or
to the extent partial payment has been made, the amount by which the face amount
of such Purchased Account exceeds such partial payment, together with any
reasonable attorneys' fees and costs incurred by Purchaser in connection with
collecting such Purchased Account (collectively, the "Chargeback Amount"),
Purchaser shall advise Seller regarding how the Chargeback Amount shall be paid,
which may be by any one or a combination of the following, in Purchaser's
reasonable discretion: (1) payment in cash immediately upon demand; (2)
deduction from or offset against any Remittance that would otherwise be payable
to Seller; (3) payment from any Advances that may otherwise be made to Seller;
(4) adjustment to the Reserve pursuant to Section 1.3 hereof; or (5) delivery of
substitute Accounts and a Schedule of Accounts acceptable to Purchaser, which
Accounts shall constitute Purchased Accounts.
3.3 REMITTANCE. Purchaser shall remit to Seller after the Settlement
Date, the amount, if any, which Purchaser owes to Seller at the end of the
Settlement Period based on the following calculations set forth below (the
"Remittance"); provided, that if there then exists any Event of Default or any
event or condition that with notice or lapse of time would constitute an Event
of Default, Purchaser shall not be obligated to remit any payments to Seller. If
the amount resulting from the following calculation is a positive number, such
amount is the amount of the Remittance for such Settlement Period. If the
resulting amount is a negative number, such amount is the amount owed by Seller
to Purchaser.
The calculations to be used are as follows:
(A) The sum of the following:
(1) The Reserve as of the beginning of the subject
Settlement Period, plus
(2) The Reserve created for each Account purchased
during the subject Settlement Period;
MINUS
(B) The sum of the following:
(1) Finance Fees accrued during the subject Settlement
Period; plus
(2) Administrative Fees accrued during the subject
Settlement Period; plus
(3) Adjustments during the subject Settlement Period;
plus
(4) Chargeback Amounts, to the extent Purchaser has
agreed to accept payment of any such Chargeback
Amount by deduction from the Remittance: plus
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(5) All professional fees and expenses as set forth in
Section 10 for which oral or written demand has
been made by Purchaser during the subject
Settlement Period; plus
(6) The Reserve for the Account Balance as of the first
day of the following Settlement Period in the
minimum percentage set forth in Section 1.3 hereof.
If the foregoing calculations result in a Remittance payable to Seller,
Purchaser shall make such payment by check, subject to Purchaser's rights of
offset and recoupment, and its right to deduct any Chargeback Amount as set
forth in Section 3.2. If the foregoing calculations result in an amount due to
Purchaser from Seller, Seller shall make such payment by any one or a
combination of the methods set forth in Section 3.2 hereof for chargebacks, as
determined by Purchaser in its discretion.
4. POWER OF ATTORNEY. Seller hereby appoints Purchaser and its designees as
Seller's true and lawful attorney in fact, to exercise in Purchaser's reasonable
discretion, after the occurrence and during the continuance of an Event of
Default is then existing, all of the following powers, such powers being
coupled, with an interest: (A) to notify all Account Debtors with respect to the
Purchased Accounts to make payment directly to Purchaser; (B) to receive,
deposit, and endorse Seller's name on all checks, drafts, money orders and other
forms of payment relating to the Purchased Accounts; (C) to demand, collect,
receive, xxx, and give releases to any Account Debtor for the monies due or
which may become due on or in connection with the Purchased Accounts; (D) to
compromise, prosecute, or defend any action, claim, case, or proceeding relating
to the Purchased Accounts, including the filing of a claim or the voting of such
claims in any bankruptcy case, all in Purchaser's name or Seller's name, as
Purchaser may elect; (E) to sell, assign, transfer, pledge, compromise, or
discharge any Purchased Accounts; (F) to receive, open, redirect and dispose of
all mail addressed to Seller for the purpose of collecting the Purchased
Accounts and to take all the actions permitted in subsection (B) above with
respect to any payment in any such mail; (G) to execute in the name of Seller
and file against Seller in favor of Purchaser such financing statements and
other agreements as Purchaser deems necessary to evidence or perfect its
security interest in the Purchased Accounts and the other Collateral, and (H) to
do all acts and things necessary or expedient, in furtherance of any such
purposes. Upon the occurrence of an Event of Default, all of the power of
attorney rights granted by Seller to Purchaser hereunder shall be applicable
with respect to all Collateral.
5. CONTINUING REPRESENTATIONS, WARRANTIES AND COVENANTS. To induce Purchaser to
enter into this Agreement and purchase Accounts, and with full knowledge that
Purchaser is relying on the truth and accuracy of the following in determining
whether to purchase any Account, Seller represents, warrants, covenants and
agrees as follows, which representations, warranties, covenants and agreements
shall survive the execution and delivery of this Agreement:
(A) The information contained in each Schedule of Accounts is
true and correct;
(B) Each Schedule of Accounts is signed by an authorized
representative of Seller, and Purchaser shall have the right to
rely an such signature as an authorized signature of Seller;
(C) Seller is the sole and absolute owner of each Account
described in each Schedule of Accounts and has the legal right to
sell, transfer and assign such Account to Purchaser;
(D) Seller has performed all obligations required by the Account
Debtor in connection with each Account described in each Schedule
of Accounts and payment of each such Account is not contingent
upon the fulfillment of any obligation or contract, past or
future;
(E) Each Account described on each Schedule of Accounts is
correctly stated therein, is not in dispute, is presently and
unconditionally owing at the time stated in the invoice
evidencing such Account as attached to the Schedule of Accounts,
is not past due or in default, represents a bona fide
indebtedness arising from the actual sale of goods or performance
of services to an Account Debtor in the ordinary course of
Seller's business which has been received and finally accepted by
the Account Debtor;
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(F) Each Account set forth on each Schedule of Accounts is not
subject to any offset, defense or counterclaim of any kind,
whether bona fide or otherwise, 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;
(G) Each Account Debtor identified on each Schedule of Accounts
is liable for the amount set forth on such Schedule of Accounts
and will not object to payment for, or the quality or the
quantity of the goods or services to which any Account described
on such Schedule of Accounts relates;
(H) Seller, and to Seller's best knowledge, each Account Debtor
set forth in each Schedule of Accounts, is and shall remain
solvent in that the present saleable value of such entity's
assets exceeds the total of such entity's liabilities;
(I) Seller has not, as of the xxxx Xxxxxx accepts an Advance from
Purchaser, filed or had filed against it a petition for relief
under the United States Bankruptcy Code;
(J) Each Account and all other Collateral are free and clear of
any and all liens, security interests and encumbrances of any
kind, other than those in favor of Purchase, and Seller will not
assign, transfer, or grant any lien or security interest in any
Accounts or other Collateral to any other party, without
Purchaser's prior written consent;
(K) Seller has not sold, assigned, transferred, pledged or
otherwise conveyed any Purchased Accounts to any party other than
Purchaser, and Seller shall not sell, assign, transfer, pledge or
otherwise convey any Collateral without Purchaser's prior
consent, except for the sale of Accounts to Purchaser and the
sale of finished inventory in Seller's normal course of business;
(L) Seller's name and form of organization are as set forth at
the beginning of this Agreement, and Seller's chief executive
office, place of business and place where Collateral and records
concerning Accounts and other Collateral are kept are as set
forth below Seller's signature, and Seller will give Purchaser at
least thirty (30) days prior written notice if such name,
organization, place of business, location of Collateral or
records concerning Collateral is to be changed or added and shall
execute any documents necessary to perfect Purchaser's interest
in the Purchased Accounts and the other Collateral; and
(M) Seller shall pay all of its normal gross payroll for
employees, and all federal and state taxes, as and when due,
including all payroll and withholding taxes and state sales
taxes.
6. GRANT OF SECURITY INTEREST. To secure the prompt payment and performance of
all of Seller's Obligations to Purchaser, Seller hereby grants to Purchaser a
continuing lien upon and security interest in, and right of set off with respect
to, all of Seller's right, title and interest in, to and under the following,
whether now owned by or owing to, or hereafter acquired by or arising in favor
of, Seller, and regardless of where located (collectively the "Collateral"):
(A) All accounts, accounts receivable, and general intangibles
representing rights to payment, and all proceeds thereof, whether
in the form of chattel paper, contract rights, documents,
instruments, letters of credit, banker's acceptances, drafts,
securities or deposit accounts;
(B) All inventory;
(C) All monies, remittances, and other amounts due under this
Agreement and any other agreement between Purchaser and Seller;
(D) All books and records relating to the foregoing, including
all computer programs, printed output and computer readable data;
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(E) All accessions to, and substitutions and replacements for,
all of the foregoing; and
(F) All proceeds and products of the foregoing, whether due to
voluntary or involuntary disposition, including insurance
proceeds. Seller shall sign and deliver to Purchaser UCC
financing statements, in form acceptable to Purchaser. Seller
agrees to deliver to Purchaser the originals of all instruments,
chattel paper and documents evidencing or related to Purchased
Accounts and other Collateral.
7. DEFAULT. The occurrence of any one or more of the following shall constitute
an event of default under this Agreement (each, an "Event of Default"):
(A) Seller fails to pay any amount owed to Purchaser as and when
due under this Agreement or fails to pay any other Obligations as
and when due;
(B) Any warranty or representation by Seller to Purchaser under
this Agreement is incorrect or untrue when made or thereafter
becomes untrue or incorrect;
(C) Seller fails to perform or breaches any covenant or agreement
set forth in this Agreement or any other agreement between
Purchaser and Seller;
(D) There shall be commenced by or against Seller any voluntary
or involuntary case under the United States Bankruptcy Code, or
any assignment for the benefit of creditors, or appointment of a
receiver or custodian for any of Seller's assets;
(E) Seller shall become insolvent in that its debts are greater
than the fair value of its assets;
(F) Any involuntary lien, garnishment, attachment or the like is
issued against or attaches to the Purchased Amounts or the other
Collateral;
(G) An event of default shall occur under any guaranty executed
by any guarantor of the Obligations, or any material provision of
any such guaranty shall for any reason cease to be valid or
enforceable or any such guaranty shall be repudiated or
terminated, including by operation of law; or
(H) A default or event of default shall occur under any agreement
between Seller and any creditor of Seller who has entered into a
subordination agreement with Purchaser.
8. REMEDIES UPON DEFAULT. Upon the occurrence of an Event of Default, Purchaser
may, without notice, (A) without implying any obligation to buy Accounts, cease
buying Accounts; (B) accelerate the payment of all Obligations by requiring
Seller to repurchase all or any portion of the Purchased Accounts then
outstanding for cash in an amount equal to the Advance made for each Purchased
Account, and all accrued Finance Fees, Administrative Fees, reasonable
attorney's fees and other Obligations then outstanding, which Obligations shall
be due and payable in full without demand; (C) exercise all the rights and
remedies under this Agreement and under applicable law, including the rights and
remedies of a secured party under the California Uniform Commercial Code.
Without limiting the generality of the foregoing, Purchaser may (1) exercise all
of the power of attorney rights described in Section 4 with respect to all
Collateral, and (2) collect, dispose of, sell, lease, use, and realize upon all
Purchased Accounts and other Collateral in any commercially reasonable manner.
Seller and Purchaser agree that any notice of sale required to be given to
Seller shall be deemed to be reasonable if given five (5) days prior to the date
on or after which any sale may be held. All remedies set forth herein shall be
cumulative and none exclusive.
9. ACCRUAL OF INTEREST. If any amount owed by Seller hereunder is not paid when
due, including any amounts due under Section 3.3, Chargeback Amounts,
professional fees and expenses under 10 and any other Obligations, such amounts
shall bear interest at a per annum rate equal to the rate of used to calculate
the Finance Fees, annualized, until payment in good funds in the full amount of
all such obligations.
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10. ATTORNEYS' FEES. Seller shall pay to Purchaser immediately upon demand, all
costs and expenses, including reasonable fees and expenses of attorneys and
other professionals, that Purchaser incurs in connection with any and all of the
following: (A) preparing, amending, supplementing, negotiating and enforcing
this Agreement, or any other agreement executed in connection herewith; (B)
perfecting, protecting or enforcing Purchaser's interest in the Purchased
Accounts and the other Collateral; (C) collecting the Purchased Accounts and the
Obligations; (D) defending or in any way addressing claims made or litigation
initiated by or against Purchaser as a result of Purchaser's relationship with
Seller or any guarantor; and (E) representing Purchaser in connection with any
bankruptcy case or insolvency proceeding involving Seller, any Purchased
Account, any other Collateral or any Account Debtor. Any attorneys' fees and
expenses may, at Purchaser's option, be netted against the reserve as set forth
in Section 3.3.
11. TERM AND TERMINATION. The term of this Agreement shall be for one (1) year
from the date hereof, and from year to year thereafter unless terminated in
writing by Purchaser or Seller. Seller and Purchaser shall each have the right
to terminate this Agreement at any time. Notwithstanding the foregoing, any
termination of this Agreement shall not affect Purchaser's security interest in
the Collateral and Purchaser's ownership of the Purchased Accounts, and this
Agreement shall continue to be effective, and Purchaser's rights and remedies
hereunder shall survive such termination, until all transactions entered into
and Obligations incurred hereunder or in connection herewith have been completed
and satisfied in full. Seller has the right at any time to repurchase the
Purchased Accounts from Purchaser on terms acceptable to Seller and Purchaser.
12. MISCELLANEOUS.
12.1 SEVERABILITY. In the event that any provision of this Agreement is
held to be invalid or unenforceable, this Agreement will be construed as not
containing such provision and the remainder of the Agreement shall remain in
full force and effect.
12.2 CHOICE OF LAW. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of California, without giving effect to
principles of conflicts of law.
12.3 NOTICES. All notices shall be given to Purchaser and Seller at the
addresses set forth in this Agreement and shall be deemed to have been delivered
and received: (A) if mailed, three (3) calendar days after deposited in the
United States mail, first class, postage prepaid; (B) one (1) calendar day after
deposit with an overnight mail or messenger service; or (C) on the same date of
transmission if sent by hand delivery, telecopy, telefax or telex.
12.4 TITLES AND SECTION HEADINGS. The titles and section headings used
herein are for convenience only and shall not be used in interpreting this
Agreement.
13. DEFINITIONS. All terms used herein which are defined in the California
Uniform Commercial Code shall have the meaning given therein unless otherwise
defined in this Agreement. The term "including" is not limiting or exclusive.
When used herein, the following terms shall have the following meanings.
13.1 "ACCOUNT" shall mean all accounts, accounts receivable, chattel
paper, contract rights, documents, general intangibles, instruments, letters of
credit, banker's acceptances, and other rights to payment, and proceeds thereof.
13.2 "ACCOUNT BALANCE" shall mean, on any given day, the gross face
amount of all Purchased Accounts unpaid on that day.
13.3 "ACCOUNT DEBTOR" shall have the meaning set forth in the California
Uniform Commercial Code and shall include any person liable on any Purchased
Account, including any guarantor of the Purchased Account and any issuer of a
letter of credit or banker's acceptance.
13.4 "ADJUSTMENT(s)" shall have the meaning set in Section 3.1.
13.5 "ADMINISTRATIVE FEE" shall have the meaning as set forth in Section
2.2.
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13.6 "ADVANCE" shall have the meaning set forth in Section 1.3.
13.7 "CHARGEBACK AMOUNT" shall have the meaning set forth in Section
3.2.
13.8 "COLLATERAL" shall have the meaning set forth in Section 6.
13.9 "CUSTOMER PAYMENTS" shall have the meaning set forth in Section
2.4.
13.10 "EVENT OF DEFAULT" shall have the meaning set forth in Section 7.
13.11 "FINANCE FEES" shall have the meaning set forth in Section 2.1.
13.12 "SCHEDULE OF ACCOUNTS" shall have the meaning set forth in Section
1.1.
13.13 "OBLIGATIONS" shall mean all advances, obligations, indebtedness
and duties owning by Seller to Purchaser of any kind or nature, present or
future, arising under or in connection with this Agreement or any other
agreement entered into between Purchaser and Seller, whether direct or indirect,
including all Advances, Finance Fees, Administrative Fees, Chargeback Amounts,
attorneys' fees and expenses.
13.14 "PURCHASED ACCOUNTS" shall mean all Accounts identified on any
Schedule of Accounts delivered by Seller to Purchaser which Purchaser elects to
purchase and for which Purchaser makes an Advance, an all monies due or to
become due thereunder.
13.15 "REMITTANCE" shall have the meaning set forth in Section 3.3
13.16 "RESERVE" shall have the meaning set forth in Section 1.3.
13.17 "SETTLEMENT DATE" shall mean the last calendar day of each
Settlement Period.
13.18 "SETTLEMENT PERIOD" shall mean each calendar month of each year.
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IN WITNESS WHEREOF, Seller and Purchaser have executed this Agreement on
the day and year written above.
"PURCHASER" "SELLER"
Resourcephoenix, Inc.
PACIFIC BUSINESS FUNDING, a By: /s/ Xxxx Xxxxxxxx
division of Cupertino National Bank --------------------------------
Title: Chief Financial Officer
By: /s/ Xxxx Xxxxxx -----------------------------
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Title: Vice President
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ADDRESS OF SELLER, CHIEF EXECUTIVE
OFFICE AND LOCATION OF COLLATERAL
Street: 0000 Xxxxxx Xxx Xxxxxxx
OTHER LOCATIONS OF COLLATERAL, IF
ANY, IN ADDITION TO ABOVE: City: Alameda
State: California
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Zip Code: 94502
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Telephone No.: (____)
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Facsimile No.: (____)
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