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EXHIBIT 4.44
CAPITAL FACTORS, INC.
FACTORING AGREEMENT
December 10, 1996
From: The Barcalounger Company, a division of
Furniture Comfort Corporation
0000 Xxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxx Xxxxx, XX 00000
To: Capital Factors, Inc.
0000 Xxxx Xxxxxxx Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Gentlemen:
Upon your written acceptance, to be noted at the foot of this Agreement, the
following will state the terms and conditions under which you are to act as our
sole factor:
1. APPOINTMENT AND SALE OF ACCOUNTS: We hereby appoint you our sole factor, and
hereby sell and assign to you, making you absolute owner thereof, all of our
accounts, contract rights, and all other obligations to us for the payment of
money arising out of the sale of goods (hereinafter referred to as
"Receivables"), together with all proceeds thereof, all security and guarantees
therefor, and all of our rights to the goods and property represented thereby.
You shall have all the rights of an unpaid seller or provider of the goods or
services, the sale or rendering of which gives rise to each Receivable,
including the rights of stoppage in transit, reclamation and replevin.
Simultaneous and subsequent to your first advance to us hereunder and upon each
sale of goods or rendering of services thereafter, we shall execute and deliver
to you such confirmatory assignments of our Receivables as you may require, in
form and manner satisfactory to you. In the event that you declare a material
breach or default of this Agreement and we fail to pay to you all outstanding
Obligations within five business days of such declaration or upon notice of the
termination of this Agreement and in the event we fail to pay to you all
outstanding Obligations within five business days of such termination, you and
your designee may, at any time, notify our customers or any account debtor that
the Receivables have been assigned to you and that you have a security interest
therein, collect such Receivables directly, and charge the collection costs and
expenses to us as an Obligation (as hereafter defined) hereunder, but, unless
and until you do so or give us other written instructions, we shall be entitled
to collect the Receivables and, upon receipt, provided that there is any
Obligation outstanding and due you under this Agreement, we shall immediately
deliver to you the proceeds of any and all Receivables together with a fully
completed collection report in form satisfactory to you. We agree and
acknowledge that all payments received by us in connection with the Receivables
and any other collateral pledged to you hereunder shall be held in trust for
you by us as your trustee until paid or remitted to you. We agree and
acknowledge that all payments received by us in connection with the Receivables
and any other collateral pledged to you hereunder shall be held in trust for
you by us as your trustee until paid or remitted to you. At any time you are
directly engaging in collection of any Receivables, we shall provide you with
copies of invoices, all shipping or delivery receipts and such other proof of
sale and delivery or performance as you may, at any time or from time to time,
require to effect collection of our Receivables. Unless you are directly
collecting Receivables, all collections will flow into our Post Office Box
located at Charlotte, North Carolina with the following mailing address:
The Barcalounger Company
X.X. Xxx 0000
Xxxxxxxxx, XX 00000-0000
During the term of this Agreement, and as long as any Obligations remain due
and outstanding to you, we shall not change the mailing address of said Post
Office Box unless we have provided you with at least thirty (30) days' prior
written notice of said change along with the location and mailing address of
such location.
We shall make appropriate notations upon our books and records indicating the
sale and assignment of our Receivables to you. During the term of this
Agreement, we agree not to sell, negotiate, pledge, assign or grant any
security interest in any or all of our Receivables to anyone other than you
except with respect to a security interest granted to Court Square Capital
Limited and its successors and assigns which security interest in the
Receivables shall be inferior and subordinate to your security interest in the
Receivables pursuant to a Subordination Agreement to be executed between you
and
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Court Square Capital Limited and acknowledged by us. If we are or become
engaged in finishing or improving goods, we agree, to assert promptly, at our
expense and upon your demand, any lien rights provided by law on goods in our
possession. We will remit to you the proceeds of sale of such goods to satisfy
the amounts owed to you by the owner of the finished goods."
2. CLIENT RISK RECEIVABLES: Any sale of goods or rendering of services
by us, shall be known as a "Client Risk Receivable." Any Client Risk
Receivable(s) assigned to and purchased by you are with recourse to us and at
our sole credit risk. You shall have the right to charge back to our account the
amount of such Client Risk Receivable(s) at any time and from time to time,
either before or after maturity. We agree to pay you on demand the full amount
thereof, and, failing to do so, we agree to pay all reasonable expenses incurred
by you up to the date of such payment in attempting to collect or enforce
payment of such Receivable(s).
3. PURCHASE PRICE:
(a) The purchase price you shall pay to us for each Receivable
shall equal the Net Invoice Amount thereof less your factoring commission, as
specified below. As used herein, the term "Net Invoice Amount" means the gross
invoice amount of the Receivables, less returns (whenever made), all selling
discounts (at your option calculated on shortest terms) made available or
extended to our customer, if taken, and credits or deductions of any kind
allowed or granted to or taken by the customer at any time. Unless specifically
shown on the invoice sold and assigned to you, or unless you shall have advised
us that discounts, credit, allowance or deductions with respect to any
Receivable cannot be granted without your prior written approval, no discount,
credit, allowance, or deduction with respect to any Receivable shall be granted,
or approved, by us in excess of $5,000.00 to any customer without your prior
written consent.
(b) The purchase price (as computed above), less (i) any
reasonable reserves or credit balance that you, in your sole discretion
reasonably exercised, determine to hold, (ii) monies remitted, paid, or
otherwise advanced by you to us or for our account, and (iii) any other charges
to our account provided for by this Agreement, shall be payable by you to us
upon collection. Monies shall be deemed to have been collected on the date of
receipt thereof by you plus three ( 3 ) business days for clearing.
(c) You shall be entitled to withhold a reasonable reserve of
sums otherwise due us, and may revise the amount of such reserve at any time and
from time to time if you reasonably deem it necessary to do so in order to
protect your interests. Furthermore, at your reasonable request, we shall
maintain a credit balance ("credit balance" or "reserve" shall be defined for
purposes of this subparagraph 3(c) as credit for amounts due us and not a "cash
balance") with you in such amount as you reasonably determine to be commensurate
with the volume and character of the business conducted by us and sufficient to
protect you against all possible returns, claims of our customers, indebtedness
owing by us to you, or any other contingencies. We shall pay you any debit
balance in our account on demand.
(d) In your sole commercially reasonable discretion, in
accordance with the terms of this Agreement, you may from time to time advance
to us, against the purchase price of Receivables purchased by you hereunder sums
up to eighty percent (80%) of the aggregate purchase price of the "Eligible
Receivables" (as defined in subparagraph (e) below) outstanding at the time any
such advance is made, less (i) any such Receivables that are in dispute and (ii)
any fees, actual or estimated, that are chargeable to our reserve account
pursuant to this Agreement; provided, however, you shall have no obligation to
consider a request from us for an advance under this subparagraph (d) whenever
the aggregate amount of the then outstanding advances made pursuant to this
subparagraph (d) exceeds or would exceed as a result of the requested advance,
Five Million and 00/100 Dollars ($5,000,000.00) to us. Unless otherwise
specified in any promissory note, or loan or other agreement, executed in
connection with such advance, any such advance shall be payable on demand and
shall bear interest at the rate set forth in subparagraph (f) below from the
date such advance is made until the date you receive repayment, in full of such
advance.
(e) The term "Eligible Receivables" means all of those
Receivables (i) which have been validly assigned to you, (ii) strictly comply
with all of our warranties and representations to you, (iii) contain payment
terms of net sixty (60) days, or less from the date of invoice (unless otherwise
pre-approved by one of your duly authorized officers in writing), and (iv) are
not past due more than sixty (60) days from the invoice due date; provided,
however, that Eligible Receivables shall not include the following: (a)
Receivables with respect to which the account debtor is one of our officers,
employees or
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agents; (b) Receivables with respect to which services or goods are placed on
consignment, guaranteed sale, or other terms by reason of which the payment by
the account debtor may be conditional; (c) Receivables with respect to which the
account debtor is not located in the United States; (d) Receivables with respect
to which the account debtor is the United States or any department, agency or
instrumentality of the United States; provided, however, that a Receivable shall
not be deemed ineligible by reason of this clause (e) if we have completed all
of the steps necessary to comply with the Federal Assignment of Claims Act (31
U.S.C. Section 3727) with respect to such Receivables; (f) Receivables with
respect to which the account debtor is any state of the United States or any
city, town, municipality, county or division thereof; (g) Receivables with
respect to which the account debtor is one of our subsidiaries, is related to
us, and under common control with us, or has common officers or directors with
us; (h) Receivables with respect to which we are or become liable to the account
debtor for goods sold or services rendered by the account debtor; (i) that
portion of the Receivables owing by an account debtor which exceeds fifty
percent (50%) of all Eligible Receivables; (j) all of the Receivables owed by an
account debtor who is the subject of an insolvency proceeding (including, but
not limited to, proceedings under the United States Bankruptcy Code, assignments
for the benefit of creditors, formal or informal moratoriums, compositions or
extensions generally with its creditors); (k) all of the Receivables owed by any
account debtor where fifty percent (50%) or more of all of the Receivables owed
by that account debtor are past due more than sixty (60) days from the due date
of the invoice; and (l) Receivables for which the services have not yet been
rendered to the account debtor or the goods sold have not yet been delivered to
the account debtor (commonly referred to as "pre-billed accounts").
(f) Interest upon the daily net balance of any monies remitted,
paid, advanced or otherwise charged to us or for our account before the payment
date (including any advance made pursuant to subparagraph 3(d) above), and
interest applicable to the charges or to the expenses referred to in this
Agreement, shall be charged to our reserve account as of the last day of each
month at a rate the greater of eight percent (8%) per anum or one percent ( 1%)
above the rate of interest designated by Citibank, New York as its "Prime Rate"
or "Base Rate", as the case may be. If, during any month, our reserve account or
credit balance, subject to the terms and conditions of this Agreement, shall be
in a net credit balance (i.e., the reserve or credit balance exceeds outstanding
Receivables), then you agree to credit our reserve account as of the last day of
each month with interest at a rate equal to three percent (3%) below the rate of
interest designated by Citibank, New York as its "Prime Rate" or "Base Rate," as
the case may be. All such interest, whether charged or credited to our reserve
account, shall be computed for the actual number of days elapsed on the basis of
year consisting of 360 days. Any adjustment in your interest rate, whether
downward or upward, will become effective on the first day of the month
following the month in which the prime rate of interest is reduced or increased.
HOWEVER, in no event shall the rate of interest agreed to or charged to us
hereunder exceed the maximum rate of interest permitted to be agreed to or
charged to us under applicable law. IT IS THE INTENTION OF THE PARTIES HERETO
NOT TO MAKE ANY AGREEMENT VIOLATIVE OF THE LAWS OF THE STATE OF FLORIDA OR THE
UNITED STATES RELATING TO USURY. IN NO EVENT, THEREFORE, SHALL ANY INTEREST DUE
HEREUNDER BE AT A RATE IN EXCESS OF THE HIGHEST LAWFUL RATE, i.e., IN NO EVENT
SHALL YOU CHARGE OR SHALL WE BE REQUIRED TO PAY ANY INTEREST THAT, TOGETHER WITH
ANY OTHER CHARGES HEREUNDER THAT MAY BE DEEMED TO BE IN THE NATURE OF INTEREST,
HOWEVER COMPUTED, EXCEEDS THE MAXIMUM LAWFUL RATE OF INTEREST ALLOWABLE UNDER
THE LAWS OF THE XXXXX XX XXXXXXX XXX/XX XX XXX XXXXXX XXXXXX. SHOULD ANY
PROVISION OF THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN US BE CONSTRUED TO
REQUIRE THE PAYMENT OF INTEREST THAT EXCEEDS SUCH MAXIMUM LAWFUL RATE, ANY SUCH
EXCESS SHALL BE AND IS EXPRESSLY HEREBY WAIVED BY YOU. SHOULD ANY EXCESS
INTEREST IN FACT BE PAID, SUCH EXCESS SHALL BE DEEMED TO BE A PAYMENT OF THE
PRINCIPAL AMOUNT OF OUTSTANDING INDEBTEDNESS OWING BY US TO YOU AND SHALL BE
APPLIED TO SUCH PRINCIPAL.
4. FACTORING COMMISSIONS.
(a) For your services hereunder, we shall pay and you shall be
entitled to receive a factoring commission equal to point thirty percent (.30%)
of the gross Invoice Amount of each Receivable, which commission shall be due
and payable to you on the date you purchase such Receivable. Factoring
commissions shall be chargeable to our account with you.
(b) The minimum aggregate factoring commissions payable under
this Agreement for each contract year hereof shall be Sixty Thousand Dollars
($60,000.00) per annum which shall be payable at the rate of $5,000.00 per month
and chargeable to our account with you on a monthly basis. To the extent of any
deficiency (after giving effect to commissions payable under the foregoing
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subparagraphs), the difference between the minimum and the amount already
charged shall be chargeable to our account with you.
5. STATEMENT OF ACCOUNT: Once each month, subsequent to our having
provided you with a complete collection report in form satisfactory to you, no
later than the 20th day of any such month (subject to circumstances beyond your
control which may result in a reasonable delay and for which you shall notify
us) you shall render a statement (Client Ledger) to us with respect to the
Receivables purchased by you during the previous month, any advances made by
you, collections received by you, and charges made to our account under this
Agreement. Our account shall be charged with all discounts (at your option,
calculated on shortest terms) made available to customers on assigned
Receivables, all returns, allowances, deductions and credits, and your
reasonable expenses, including, without limitation, postage on invoices, bank
wire fees, filing fees, UCC search and similar charges. We will also be charged
with interest at the rate specified in paragraph 3(f) above, with respect both
to Receivables as to which a credit is issued after the payment date applicable
thereto, and any Receivables collected or charged back after such credit, or to
the date of collection or chargeback, as the case may be. A discount, credit or
allowance after issuance or granting may be claimed solely by the customer. Each
statement, report, or accounting rendered or issued by you to us shall be deemed
accepted by us and shall be conclusive and binding upon us, unless within thirty
(30) days after the date thereof we notify you to the contrary by registered or
certified mail, setting forth with specificity the reasons why we believe such
statement, report, or accounting is incorrect and what we believe to be the
correct amount thereof. Moreover, if we fail to receive a monthly statement, we
shall likewise be obligated to notify you in the same manner as if we fail to
accept the statement, and our failure to do so shall relieve you of any
responsibility or liability arising out of our not receiving such monthly
statement.
6. REPRESENTATIONS AND WARRANTIES: We hereby represent and
warrant to you that: (i) each Receivable is a bona fide existing obligation
created by a customer's express order for, and the actual sale and physical
delivery of, or legal passage of title to, goods or the rendering of services to
customers in the ordinary course of business, which goods, prior to sale, we
owned free and clear of any liens or encumbrances except with respect to the
encumbrances created under the Credit Agreement with Court Square Capital
Limited, as amended (the "Credit Agreement"), and which Receivable is then
unconditionally owing to us without dispute, defense, offset, or counterclaim;
(ii) the customers, which are not affiliated with us, have to the best of our
knowledge and at the time a Receivable is created, received and have accepted
the goods of services, and the invoices therefor, without dispute, offset, or
claim of any kind as to price, terms, quality, quantity, delay in shipment,
offsets, counterclaims, contra accounts or any other kind and character; (iii)
subject to the terms and conditions of paragraph 3(a) of this Agreement, the
Receivables will not be subject to discounts, deductions, allowances, offsets,
counterclaims or other contra items, nor to any other special terms of payment
that are not shown on the face of the invoice; (iv) the Receivables will not
represent delivery of merchandise upon "consignment," "guaranteed sale," "sale
or return," "payment on reorder," or similar terms; and (v) the Receivables will
not represent "pack, xxxx and hold" transactions unless we have furnished you
with a copy of our customer's purchase order soon after its receipt, and you
have obtained such customer's agreement to grant you a security interest in the
merchandise and pay for such merchandise at maturity of our invoice irrespective
of whether or not we have received instructions to deliver the same; (vi) we are
solvent; (vii) we have full right and authority to sell or assign to you, and to
grant to you a security interest in, our Receivables; (viii) we have not granted
and will not hereafter grant to any other person a security interest in, or
grant to any other person any right to purchase our Receivables, or, without
your prior written consent, grant to any other person a security interest in any
of our inventory at any time during the term of this Agreement and until all
security interests or purchases granted hereunder have been terminated except in
connection with the Credit Agreement; (ix) all taxes due and payable have been
paid prior to the date on which any fine, penalty or interest may be added
thereto for nonpayment thereof, except to the extent contested in good faith by
proper proceedings that stay the imposition of any lien filed against us or our
property during the term of this Agreement resulting from non-payment; and (x)
there are no judgments of assessments for the payment of money exceeding
$250,000 other than that are not fully covered by insurance or that have been
vacated, stayed, bonded, paid or discharged during the term of this Agreement.
7. SECURITY: As collateral security for any and all of our indebtedness
and obligations to you whether matured or unmatured, absolute or contingent, now
existing or hereafter arising (including under indemnity or reimbursement
agreements or by subrogation), and however acquired by you, whether arising
directly between us or acquired by you by assignment, whether relating to this
Agreement or independent hereof, including all obligations incurred by us to any
other person factored or financed by you (collectively, the "Obligations"), we
do hereby grant to you a security interest in all of
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our accounts, contract rights, and general intangibles whether or not otherwise
specifically assigned to you in this Agreement, now existing or hereafter
acquired, and in the proceeds and products thereof, any security and guarantees
therefor, in the goods and property represented thereby, in all of our books and
records relating to the forgoing, and in all reserves, credit balances, sums of
money at any time to our credit with you, and any of our property at any time in
your possession. We hereby irrevocably authorize and direct you to charge at any
time to our account any Obligations. We agree to execute financing statements
and any and all other instruments and documents that may now or hereafter be
provided for by the Uniform Commercial Code or other law applicable thereto
reflecting security interests granted to you hereunder. We hereby appoint you as
our attorney-in-fact and authorize you to sign such financing statements on our
behalf as debtor or to file such financing statements without our signature,
signed only by you as secured party. In the event you declare a material default
or breach of this Agreement and we fail to pay to you all outstanding
Obligations within five business days of such declaration or upon notice of the
termination of this Agreement and our failure to pay to you all outstanding
Obligations within five business days of such notice, we hereby appoint you as
our attorney-in-fact and authorize you to sign any document or agreement which
would entitle you to change our mail delivery address with any postal authority
and we shall promptly execute any documents you may reasonably request of us to
effect same. We shall be liable for, and you may charge our account with, all
reasonable costs and expenses of filing such financing statements (including any
filing or recording taxes), making lien searches, and any reasonable attorney's
fees and expenses that may be incurred by you in perfecting, protecting,
preserving, or enforcing your security interests.
8. TERM: This Agreement shall continue in full force and effect for a
period of one year from the date hereof (the "Initial Term") and shall be deemed
renewed from year to year thereafter. After the Initial Term, either party may
terminate this Agreement at any time upon thirty (30) days prior written notice
to the other party. Notwithstanding the foregoing, if we become insolvent or
unable to meet our debts as they mature, fail, close, suspend, or go out of
business, commit an act of bankruptcy, file or become the subject of a petition
under the Bankruptcy Act or law permitting the appointment of a receiver,
liquidator, conservator, or similar functionary, material breach or become in
material default under this Agreement or any Obligation to you, or if there is a
change (by death or otherwise) in our principal stockholders or owners, then,
notwithstanding the foregoing, you shall have the right to terminate this
Agreement at any time without notice; however, you may consent to such ownership
change in your discretion which consent shall not be unreasonably withheld. In
the event you elect to terminate this Agreement, and your decision to do so is a
result of a material breach of this Agreement by us, then, notwithstanding any
other provisions contained herein, you shall be entitled to charge our account,
and we agree to pay to you, the monthly minimum factoring fee specified in
paragraph 4(b) herein for the later of ninety (90) days from the effective date
of termination or until any and all of our indebtedness to you pursuant to this
Agreement shall have been paid in full. Your rights and our Obligations arising
out of transactions having their inception prior to the termination date shall
not be affected by any termination or notice thereof. Termination of this
Agreement shall not terminate, extinguish, or remove any liens or security
interests granted to you hereunder until we have fully paid and discharged any
and all of our Obligations to you, and we shall continue to furnish to you
confirmatory assignments and schedules of Receivables previously assigned to you
and all proceeds in respect thereof. After the giving of any notice of
termination hereunder, and until the full liquidation of our account, we shall
not be entitled to receive any payments from you. From and after the effective
date of termination, all amounts charged or chargeable to our account hereunder,
and all our Obligations to you, shall become immediately due and payable without
further notice or demand.
9. MISCELLANEOUS:
(a) Subsequent to your first advance to us hereunder, while any
Obligations due you hereunder remain outstanding and upon notice from you to us,
any goods rejected or returned by any customer shall be your property held by us
in trust for you separate and apart from any other goods, and, upon your demand
and in accordance with your instructions, shall forthwith be delivered to you or
disposed of by us without charge to you, with the proceeds of such disposition
to be remitted promptly to you. We shall promptly report to you, in writing, all
disputes and claims made by our customers, the refusal of any services and the
rejection or return of or offer to return any goods, and we will promptly and
diligently prosecute, defend or settle all such claims and disputes at our
expense. WE AGREE TO PREPARE AND ASSIGN TO YOU ALL CREDIT MEMOS TO WHICH OUR
CUSTOMERS HAVE BECOME ENTITLED SINCE THE DATE OF OUR LAST ASSIGNMENT, and our
failure to do so entitles you to charge our account with any expenses incurred
by you as a result. As absolute owner of each Receivable, you may, in your sole
discretion, enforce, effect any compromise regarding settlement, or adjust any
Receivable, in your name or ours, without affecting or limiting our obligations
to you under this Agreement, whether or not any such Receivable shall have been
charged back to us. You reserve the right at any time to charge back to our
account the full amount of the Receivable(s)
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involved in any claim, dispute, rejection, or return asserted or made by our
customers, and we agree to pay you upon demand the full amount thereof. The
chargeback to our account of the amount of any such Receivable shall not be
deemed a reassignment to us, and title thereto and to the proceeds thereof, all
security and guarantees therefor, and our interest in the goods represented
thereby shall remain in you. We shall indemnify you for, and hold you harmless
against, any loss, liability, claim or reasonable expense of any kind arising
from any claims of, or disputes with, our customers as to terms, price, quality,
quantity, or otherwise, relating to any Receivable, including any claim for
return or reimbursement of any payments therefor. We agree to notify you
promptly when a customer asserts a dispute or claim of any kind, and upon your
notice to us of a customer dispute or claim, we agree to contact the customer
promptly to effect a resolution of such dispute or claim.
(b) Subsequent to your first advance to us hereunder and while
any Obligations due you hereunder remain outstanding, if any check, draft, note,
acceptance, cash collection or payment in any form is received by us on any
Receivable, WE SHALL IMMEDIATELY TRANSMIT AND DELIVER IT TO YOU IN THE FORM
RECEIVED, and our failure to do so entitles you to charge our account with any
reasonable expenses incurred by you as a result. Until our delivery of each such
payment to you, it shall be held by us in trust for you. We agree that you, and
any such person or entity as you may from time to time designate, shall have the
right to sign and/or endorse our name on all remittances and all papers, bills
of lading, receipts, instruments and documents relating to the Receivables and
the transactions between us. You shall have the right to deposit any checks or
other remittances received on Receivables regardless of notations or conditions
placed thereon by our customers or deductions reflected thereby and to charge
the amount of any such deduction to our account.
(c) In the event a sales or excise tax is levied by State or
Federal authorities, in such form that you are required to pay a tax on sales
represented by any Receivable(s), we agree to reimburse you for the full amount
of taxes payable and agree that all such amounts may be charged to our account.
(d) We agree to keep proper books of record and accounts in
accordance with sound and accepted accounting practices, which books shall at
all times be open to inspection by you. You and such accountant or other agents
as you may from time to time designate shall have the right, at our expense, to
visit and inspect our properties, assets and books, and to discuss our affairs,
finances and accounts with our officers and employees at such reasonable times
as you may designate, and to make and take away copies of our records. We agree
to do all things necessary or appropriate to permit you to fully exercise your
rights under this Paragraph. We also agree to make available to you from time to
time, upon your request, copies of our quarterly financial statements. Unless
specifically waived in writing, such financial statements are to be provided to
you on a quarterly basis.
(e) Your failure at any time to insist upon performance of any
term or provision of this Agreement shall not be deemed a waiver of any right
reserved to you, and the waiver of one provision shall not be deemed to be a
waiver of any other provision.
(f) This Agreement is the parties' complete and final agreement,
reflects the parties' mutual understanding, supersedes any prior agreement or
understanding between the parties, and may not be modified or amended orally.
The parties acknowledge that, but for the promises and representations expressly
contained in this Agreement, no other promise or representation of any kind has
been made to either party to induce them to execute this Agreement. Furthermore,
the parties acknowledge that if any such promise or representation has been
made, neither party relied upon it in deciding to enter into this Agreement.
(g) This Agreement is deemed made in the State of Florida and
shall be governed, interpreted, and construed in accordance with the laws of the
State of Florida. No modification, amendment, waiver, or discharge of this
Agreement shall be binding upon you unless in writing and signed by the
applicable party. The parties mutually agree that TRIAL BY JURY IS HEREBY WAIVED
by either party in any action, proceeding or counterclaim brought by either
party against the other on any matters whatsoever arising out of or in any way
connected with this Agreement, or the relations created hereby, whether for
contract, tort, or otherwise, and my party hereby consents to the jurisdiction
of the courts of the State of Florida and of any Federal Court in such state for
determination of any dispute as to any such matters. In connection therewith,
the parties hereby waive personal service of any summons, complaint, or other
process, and agree that service thereof may be made by registered or certified
mail directed to such party at its address set forth above or such other address
of which such party shall have previously notified the other party by registered
or certified mail. In the event that you obtain counsel for the purpose of
collecting any indebtedness due you from us or seeking to enforce any right you
are entitled to under the factoring agreement, we agree to pay the
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reasonable attorneys' fees and expenses (including all such fees incurred at
trial and the appellate levels) of your counsel. In addition, in the event you
are sued by us or any other party for any claim or cause of action related to or
arising under this Agreement or the factoring relationship, or you are required
to defend any suit regarding any duty you are alleged to have breached, whether
in the form of a contract duty, tort or otherwise, we agree that if you prevail
at trial or on appeal we shall be obligated to reimburse you for all of the
reasonable attorneys' fees you incur. We also agree that you may charge and/or
set off against our account all such fees and expenses as such fees or expenses
are incurred. Your books and records shall be admissible as prima facie evidence
of the status of the accounts between us. This Agreement shall be binding upon
and inure to the benefit of each of us and our respective heirs, executors,
administrators, successors and assigns, but neither party may assign this
Agreement or any of their rights hereunder to any person without the other
party's prior written consent.
(h) We agree and acknowledge that you and your authorized
representatives are engaged in the provision of factoring services pursuant to
this Agreement. By entering into this Agreement, we expressly acknowledge that
we will not seek advice or counsel from you or any of your representatives with
respect to the management and/or operation of our business, or any other entity
affiliated or controlled by us, and if we deem such advice or counsel to have
been offered, directly or indirectly, we will evaluate it and act or decline to
act upon it based upon our own careful analysis and/or the advice or counsel of
our own independent expert(s) or consultant(s). WE AGREE THAT WE WILL NOT SEEK
OR ATTEMPT TO ESTABLISH A FIDUCIARY RELATIONSHIP BETWEEN YOU AND/OR YOUR
REPRESENTATIVES AND OURSELVES, OR ANY OTHER ENTITY AFFILIATED OR CONTROLLED BY
US. WE HEREBY EXPRESSLY WAIVE ANY RIGHT TO ASSERT, NOW OR IN THE FUTURE, THAT
THERE WAS OR IS A FIDUCIARY RELATIONSHIP BETWEEN US IN ANY ACTION, PROCEEDING OR
CLAIM FOR DAMAGES.
THE BARCALOUNGER COMPANY, A DIVISION OF
FURNITURE COMFORT CORPORATION
By: /s/ XXXX X. XXXXXX
-----------------------
Name/Title Xxxx X. Xxxxx
Vice President ,
The foregoing is acknowledged, accepted and agreed to:
CAPITAL FACTORS, INC.
By:
-----------------------------
Xxxx X. Xxxxxx, President
8
-8-
CORPORATE RESOLUTION
WHEREAS, the company will benefit from the services of a factor in
connection with the handling of its accounts receivable; and
WHEREAS, the Board has considered a proposed Factoring Agreement with
CAPITAL FACTORS, INC., a Florida corporation, under which CAPITAL FACTORS, INC.
would act as the Company's exclusive factor;
NOW, THEREFORE, BE IT AND IT IS HEREBY RESOLVED THAT:
The proposed Factoring Agreement is approved, and appropriate officers
of the company are authorized and directed to execute and deliver a Factoring
Agreement with CAPITAL FACTORS, INC. in the form or substantially the form
outlined herein, and to do and perform all things contemplated herein on behalf
of this company.
As of the date of this Agreement, the following are the
officers/employees authorized to act on behalf of the company:
/s/ Xxxxx Xxxxxxxx
---------------------------------------
Xxxxx Xxxxxxxx, President
/s/ Xxxx X. Xxxxxx
---------------------------------------
Xxxx X. Xxxxxx, Vice President,
Secretary and Treasurer
/s/ Xxxxxxx X.. Xxxxxxxxxxx
---------------------------------------
Xxxxxxx X.. Xxxxxxxxxxx, Vice President
---------------------------------------
Name/Title
---------------------------------------
Name/Title
IN WITNESS WHEREOF, the undersigned hereby certifies that the foregoing
Resolution was duly adopted at a meeting of the Board of Directors held on
September 6, 1996, at which a quorum was present, and that said Resolution has
not been modified, amended, or rescinded and remains in full force and effect as
of the date set forth below.
THE BARCALOUNGER COMPANY, A DIVISION OF
FURNITURE COMFORT CORPORATION
By: /s/ XXXX X. XXXXXX
-----------------------
Name Xxxx X. Xxxxxx
Its: Title Vice President
ATTEST:
/s/ XXXX X. XXXXXX (SEAL)
-----------------------
Secretary
