Exhibit 10.33
INVOICE PURCHASE AND SALE AGREEMENT
"Seller" means INTELLIGENT MEDICAL IMAGING INC. of 0000 Xxxxxxxxx Xxxx.,
Xxxxx 000, xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000. "Buyer" means FINOVA CAPITAL
CORPORATION DBA PATRIOT FUNDING, of 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000 ("Patriot"), it being understood that United and Patriot Funding are
one and the same.
1. The Seller hereby agrees to sell to the Buyer and the Buyer hereby
agrees to purchase from the Seller such of the invoices of the Seller listed on
a schedule made with respect hereto as are accepted by the Buyer. The Buyer's
acceptance is evidenced by its failure to cross out and have a representative
place his or her initials alongside a listed invoice. The invoices so purchased
are called the "Invoices." The customers of the Seller are called "Account
Debtors." "Account," "contract rights" and "general intangibles" have the
meanings given to them by the New York Uniform Commercial Code.
2. Unless otherwise agreed, the purchase price for an Invoice is 95% of the
net amount thereof. The net amount of an Invoice shall mean the gross amount of
the Invoice less any discount and sales or use tax pertaining thereto. The
difference between the net amount of an Invoice and the purchase price is herein
called the "Fee."
3. The purchase price is payable as follows: (a) an amount equal to
approximately 80% of the underlying Invoice (the "Down Payment") at the time of
the acceptance of the Invoice by the Buyer and (b) the balance (the "Back End"),
subject to the further terms hereof, upon payment of the Invoice by the Account
Debtor, after allowing a reasonable time after the Buyer's receipt of a check
for the clearance thereof and the Buyer's administrative needs (which time in
the case of checks received on a Monday through Wednesday shall be deemed to end
on the following Friday, and in the case of checks received on a Thursday or
Friday shall be deemed to end on the Friday of the following week). Checks
received by the Buyer after 1:00 p.m. on a business day shall be deemed received
on the next business day. If more than one invoice is set forth on a schedule
and accepted by the Buyer the group of such Invoices shall be deemed an Invoice
for purposes of paragraph 2 and 3 hereof. If the payment by the Account Debtor
exceeds the Down Payment plus the sums the Buyer is entitled to hereunder, the
difference shall be paid to the Seller along with the Bank End.
4. If an Account Debtor fails to pay an Invoice within 60 days after the
purchase thereof, and such failure is due solely to the Account Debtor's
"Insolvency," then the Buyer shall pay the balance of the purchase price, over
and above the Down Payment, promptly after the expiration of such period. The
"Insolvency" of an Account Debtor is the Account Debtor's voluntary or
involuntary entry into proceedings under any Federal or State law looking to the
adjustment or discharge of the debts of an insolvent, which proceedings have not
been dismissed by the time payment from the Buyer is due. If an Account Debtor
communicates a dispute concerning the goods or services underlying the Invoice
and thereafter enters Insolvency, its failure to pay shall be deemed not due
solely to the Account Debtor's Insolvency. Anything herein contained to the
contrary notwithstanding, the Buyer may withhold payment of any Down Payment or
Back End to cover (a) any breach by the Seller of any representation or warranty
hereunder, (b) any such breach by the Seller which is reasonably anticipated by
the Buyer or (c) any obligation of the Seller to the Buyer under any other
agreement. Any amount so withheld may be applied by the Buyer to the liabilities
of the Seller to the Buyer and shall, to the extent not so applied be paid over
to the Seller when it reasonably appears to the Buyer that further retention of
the sum is unnecessary. In determining the existence of a breach of
representation or warranty hereunder, the Buyer may rely on any oral or written
advice given it which it reasonably believes to be true until the Seller
furnishes the Buyer with evidence of the falsity of such advice.
5. The Seller represents and warrants (a) the Seller is and will be the
sole and absolute owner of each Invoice, free of any lien or encumbrance, at the
time of the sale thereof to the Buyer and at all times thereafter; (b) the
amount of each Invoice is or will be correctly stated on the schedule given to
the Buyer with respect thereto at the time the schedule is delivered to the
Buyer, and at such time there shall be no contingency or condition with respect
to the payment of such Invoice; (c) each Invoice will be paid in full on its due
date or within 60 days after the Buyer's purchase thereof, whichever comes
first, free of any offset, deduction or counterclaim except for reasons of the
Account Debtor's Insolvency; and in the event the breach of such representation
and warranty results in an Account Debtor's failure to pay an invoice within the
time period set forth in Paragraph 4 hereof otherwise than by reason of the
Account Debtor's Insolvency, then the Seller shall promptly pay the Buyer the
Down Payment with respect to such Invoice and all other sums owing by it to the
Buyer hereunder or any other agreement between the parties hereto; (d) it shall
keep its business operating at a level of solvency, paying all its debts when
due, including, without limitation, suppliers, rent taxes, salaries and wages;
and (e) in the event the Seller shall receive any payments with respect to an
Account after the Buyer is entitled to receive payment on such Invoice or
Account, then the Seller shall immediately turn over such payment to the Buyer
in the original form received by the Seller, together with an identification of
the Invoice or Account to which the payment belongs. Amounts due the Buyer by
reason of a breach of any representation or warranty shall bear interest at the
rate of 24% per annum from the date of breach. The Buyer hereby appoints the
Seller as the Agent of the Buyer to grant credits and allowances on Invoices up
to 3% of the face amount of any Invoice involved, provided prompt notice of such
credit or allowance is given to the Buyer and the balance of the Invoice is paid
within 60 days of its due date.
6. From the date of the Buyer's purchase of an Invoice, the Buyer shall
have all the rights of an owner of the Invoice. As collateral for any and all
liabilities of the Seller to the Buyer, the Buyer shall have a security interest
in all of the Seller's present and future Accounts, contract rights and general
intangibles and the proceeds thereof. The Buyer shall have all the right of a
secured party as provided by law or hereunder with respect to such collateral.
Without limiting the generality of the foregoing, it is understood the Buyer
shall be entitled at any time and from time to time, and in such manner as it
deems best, by itself or through any agent, (a) to verify the accuracy of any
representation made hereunder or in connection with any transaction hereunder;
(b) to sign and file financing statements in its own name and the name of the
Seller under the Uniform Commercial Code covering the Seller's Accounts or any
of them; (c) to direct that payments be made directly to it on any Invoice or,
after a breach by Seller of the terms hereof, on any Account; (d) to endorse any
proceeds on Invoices or Accounts that may come into its possession to permit the
Buyer to collect thereon; (e) if an event of default has occurred hereunder or
in the Buyer's reasonable discretion a default appears imminent, then in the
Buyer's sole discretion, to compromise any dispute relating to an Invoice or an
Account; and (f) after a breach of any representation or warranty by Seller, to
notify postal authorities to change the address for the delivery of mail to an
address designated by Buyer, and to open and dispose of such mail. The Seller
agrees to provide Buyer all assistance deemed necessary by Buyer in connection
with the collection of any Invoices or Accounts.
7. Seller agrees to pay Buyer on demand, all fees, expenses and charges
incurred by Buyer in connection with its exercising any rights under the terms
of this Agreement, including, without limitation, filing fees, search fees, the
Buyer's then current charge for wires, check certification or like services,
uncleared checks, statements, credit checks, messengers and the reasonable fees
and expenses of Buyer's counsel in connection with the enforcement or defense of
any term of this Agreement or in enforcing payment of an Invoice or Account.
Seller shall also pay Buyer a $0 opening charge intended to cover Buyer's
expenses in initiating the transactions envisioned hereby, which charge shall
include searches and filing fees.
8. In the event of a breach by the Seller of any term of this Agreement,
then, upon the request of the Buyer, the Seller shall immediately pay to the
Buyer all unpaid amounts owing by Account Debtors on all Invoices purchased by
the Buyer from the Seller pursuant to the terms of this Agreement and the due
date of all such Invoices shall be deemed accelerated to the date of such
request. The Buyer shall promptly refund to the Seller any amount so paid in
excess of the sums that the Buyer is entitled to hereunder.
9. No failure or delay on the part of the Buyer in exercising any power or
right under this Agreement, shall operate as a waiver thereof, nor shall any
partial exercise of any such right or power or any abandonment or discontinuance
of any steps to enforce such right or power preclude any other or further
exercise thereof or the exercise of any other right or power. The rights and
remedies of Buyer hereunder are cumulative and not exclusive of any rights or
remedies which it would otherwise have. Notwithstanding the foregoing provisions
of this paragraph, it is recognized that the Buyer will not rely on any
immaterial breach of this Agreement, by itself, as the basis for terminating the
Agreement or in accelerating the due date of any obligation of the Seller to the
Buyer.
10. Seller and Buyer agree that they are subject to, and hereby irrevocably
submit to, the jurisdiction of the Courts of New York or any federal court
sitting in New York, New York in connection with any suit, action or proceeding
arising out of or relating to this Agreement.
11. The parties hereto agree that any action, dispute, proceeding, claim or
controversy between them, whether sounding in contract, tort or otherwise
hereunder ("Dispute" or "Disputes") shall, at the Buyer's election, which
election may be made at any time prior to the commencement of a judicial
proceeding by the Buyer or in the event of a judicial proceeding instituted by
the Seller, at any time prior to the last day to answer and/or respond to a
summons and/or complaint of the Seller, be resolved by arbitration in accordance
with the provisions of this paragraph and shall, at the election of the Buyer,
include all disputes arising out of or in connection with this Agreement. Any
election by the Buyer to require arbitration of any Dispute may be made without
the Buyer thereby being required to arbitrate all Disputes between the parties,
but only the specified Dispute with the effect of leaving to judicial
determination any other Disputes. Any Dispute referred for arbitration shall be
resolved by binding arbitration in accordance with Article 75 of the New York
Civil Practice Law and Rules and the Commercial Arbitration rules of the
American Arbitration Association ("AAA"). In the event of any inconsistency
between such Rules and these arbitration provisions, these provisions shall
supersede such Rules. All statutes of limitations which would otherwise be
applicable shall apply to any arbitration proceeding under this paragraph. In
any arbitration proceeding subject to this paragraph, the arbitration panel (the
"arbitrator") is specifically empowered to decide (by documents only, or with a
hearing, at the arbitrator's sole discretion) pre-hearing motions which are
substantially similar to pre-hearing motions to dismiss and motions for summary
adjudication. In any such arbitration proceeding, the arbitrator shall not have
the power or authority to award punitive damages to any party. Judgment upon the
award rendered may be entered in any court having jurisdiction. Whenever an
arbitration is required, the parties shall select an arbitrator in the manner
provided in this paragraph. No provisions of, nor the exercise of any rights
under, this paragraph shall limit the right of the Buyer (1) to foreclose
against any real or personal property collateral through judicial foreclosure,
by the exercise of the power of sale under a deed of trust, mortgage or other
security agreement or instrument, pursuant to applicable provisions of the
Uniform Commercial Code, or otherwise pursuant to applicable law, (2) to
exercise self-help remedies including but not limited to set off and
repossession, or (3) to request and obtain from a court having jurisdiction
before, during or after the pendency of any arbitration, provisional or
ancillary remedies and relief including but not limited to injunctive or
mandatory relief or the appointment of a receiver, all in accordance with the
provisions of this Agreement. The institution and maintenance of an action or
judicial proceeding for, or pursuit of, provisional or ancillary remedies or
exercise of self-help remedies shall not constitute a waiver of the right of the
Buyer, even if the Buyer is the plaintiff, to submit the Dispute to arbitration
if the Buyer would otherwise have such right. Whenever an arbitration is
required under this paragraph, the arbitrator shall be selected, except as
otherwise herein provided, in accordance with the Commercial Arbitration Rules
of the AAA. The Dispute shall be decided by a majority of three persons, at
least two of whom shall be attorneys with at least five years' experience
representing commercial banks, factors or commercial finance companies. The
arbitrator shall have the power to award recovery of all costs and fees
(including attorneys' fees, administrative fees, arbitrators' fees, and court
costs) to the prevailing party. In the event of any Dispute governed by this
paragraph, each of the parties shall, subject to the award of the arbitrator,
pay an equal share of the arbitrator's fees.
12. SELLER AND BUYER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREIN OR ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS AGREEMENT OR IN ANY
COURSE OF CONDUCT, COURSE OF DEALING, OR ACTIONS OF THE SELLER OR BUYER.
Dated: November , 1998
SELLER: INTELLIGENT MEDICAL IMAGING INC.
By:
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BUYER: FINOVA CAPITAL CORPORATION DBA PATRIOT
FUNDING
By:
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GUARANTY
The undersigned, jointly and severally, guaranty that (a) the Seller named
in the aforesaid Invoice Purchase and Sale Agreement is and will be the sole and
absolute owner of each purported Invoice sold to Buyer thereunder, free of any
lien or encumbrance at the time of the sale thereof to the Buyer and at all
times thereafter; (b) each such Invoice shall be bona fide, representing a sale
by the Seller or the rendition of services by the Seller for the account debtor
named therein in accordance with the underlying agreement between the account
debtor and Seller for the amount and on the terms therein set forth and at the
time of sale of the Invoices under the aforesaid agreement there shall be no
contingency or condition with respect to the payment of such Invoice unless the
Invoice involved has been designated a contingent sale on the schedule delivered
with respect thereto as envisioned by a letter agreement between the Seller and
the Buyer of even date herewith; (c) in the event the Seller shall receive any
payments or checks representing payments with respect to any Invoice, or with
respect to an account after the Buyer is entitled to receive payment on such
Invoice or account, then the Seller shall immediately turn over such check or
payment to the Buyer in the original form received by the Seller, together with
an identification of the Invoice or account to which the check or payment
belongs; and (d) in the event the Seller shall purport to grant any credit,
adjustment or allowance with respect to an Invoice, it shall promptly notify the
Buyer of the amount and reason therefor.
The undersigned, jointly and severally, shall hold the Buyer harmless
against any loss arising from a breach of the aforesaid guaranty and shall pay
the amount of any loss to the Buyer on demand. Such loss shall be, in the case
of a breach of subdivisions (a) or (b) of the aforesaid paragraph, the amount of
the Invoice or purported Invoice involved, and in the case of a breach of
subdivisions (c) or (d), the amount of the payment, check or credit, as the case
may be.
If the Buyer turns enforcement of this guaranty over to an attorney, the
undersigned shall be liable for such attorney's reasonable fees and
disbursements.
Reference herein to the "agreement" or its Invoice Purchase and Sale
Agreement shall include the aforesaid letter.
IN ANY ACTION TOUCHING UPON THIS GUARANTY, THE UNDERSIGNED AND THE BUYER
WAIVE TRIAL BY JURY.
Dated: November 1998
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Guarantor's Signature
Xxxx Xxxxxxx
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Guarantor's Name
000-000-0000 ###-##-####
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Guarantor's `phone # Guarantor's Soc.Sec. #
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Guarantor's Address
