EXHIBIT 10.45
(CIT LOGO)
November 22, 2006
Syntax Corporation
00000 X. Xxxxxxxx Xxxxxxx
Xxxx xx Xxxxxxxx, Xxxxxxxxxx 00000
AMENDED AND RESTATED FACTORING AGREEMENT
Ladies and Gentlemen:
We are pleased to confirm the terms and conditions that will govern our funds in
use accounting, notification factoring arrangement with advances (the
"Agreement"). This Agreement shall amend, replace and supersede in its entirety
the Factoring Agreement between us dated July 27, 2004, as supplemented and
amended. This Agreement is intended to set forth the terms and provisions
pursuant to which we shall factor the sales created or arising on and after the
date hereof. This Agreement shall in no way be construed to, nor shall it
affect, modify, diminish or break the continuity of our ownership and/or
security interest in, as further set forth herein, all of your present and
future accounts receivable, as more fully described in said Factoring Agreement
which ownership and/or security interest is hereby ratified and confirmed by
this Agreement as provided above.
1. SALE OF ACCOUNTS
You sell and assign to us, and we purchase as absolute owner, all accounts
arising from your sales of inventory or rendition of services, including those
under any trade names, through any divisions and through any selling agent
(collectively, the "Accounts" and individually, an "Account").
2. CREDIT APPROVAL
2.1 Requests for credit approval for all of your orders must be submitted to our
Credit Department via computer by either: (a) On-Line Terminal Access, or (b)
Electronic Batch Transmission. If you are unable to submit orders via computer,
then orders can be submitted over the phone, by fax or in writing. All credit
decisions by our Credit Department (including approvals, declines and holds)
will be sent to you daily by a Credit Decisions Report, which constitutes the
CIT COMMERCIAL SERVICES
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000 t: 213.613.2400
official record of our credit decisions. Credit approvals will be effective only
if shipment is made or services are rendered within thirty (30) days from the
completion date specified in our credit approval. Credit approval of any Account
may be withdrawn by us any time before delivery is made or services are
rendered.
2.2 We assume the Credit Risk on each Account approved in the Credit Decision
Report. "Credit Risk" means the customer's failure to pay the Account in full
when due on its longest maturity solely because of its financial inability to
pay. If there is any change in the amount, terms, shipping date or delivery date
for any shipment of goods or rendition of services (other than accepting returns
and granting allowances as provided in section 8 below), you must submit a
change of terms request to us, and, if such pertains to a Factor Risk Account,
then we shall advise you of our decision either to retain the Credit Risk or to
withdraw the credit approval. Accounts on which we bear the Credit Risk are
referred to collectively as "Factor Risk Accounts", and individually as a
"Factor Risk Account". Accounts on which you bear some or all of the risk as to
credit are referred to collectively as "Client Risk Accounts", and individually
as a "Client Risk Account".
2.3 We shall have no liability to you or to any person, firm or entity for
declining, withholding or withdrawing credit approval on any order. If we
decline to credit approve an order and furnish to you any information regarding
the credit standing of that customer, such information is confidential and you
agree not to reveal same to the customer, your sales agent or any third party.
You agree that we have no obligation to perform, in any respect, any contracts
relating to any Accounts.
3. INVOICING
You agree to place a notice (in form and content acceptable to us) on each
invoice and invoice equivalent that the Account is sold, assigned and payable
only to us, and to take all necessary steps so that payments and remittance
information are directed to us. All invoices, or their equivalents, will be
promptly mailed or otherwise transmitted by you to your customers at your
expense. You will provide us with copies of all invoices (or the equivalent
thereof if the invoices were sent electronically), confirmation of the sale of
the Accounts to us and proof of shipment or delivery, all as we may reasonably
request. If you fail to provide us with copies of such invoices (or equivalents)
or such proofs when requested by us, we will not bear any Credit Risk as to
those Accounts.
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4. REPRESENTATIONS AND WARRANTIES
4.1 You represent and warrant that: each Account is based upon a bona fide sale
and delivery of inventory or rendition of services made by you in the ordinary
course of business; the inventory being sold and the Accounts created are your
exclusive property and are not, and will not be, subject to any lien,
consignment arrangement, encumbrance or security interest other than in our
favor and in favor of Preferred Bank; all amounts are due in United States
Dollars; all original invoices bear notice of the sale and assignment to us; any
taxes or fees relating to your Accounts or inventory are solely your
responsibility; and none of the Accounts factored with us hereunder represent
sales to any subsidiary, affiliate or parent company. You also warrant and
represent that: your customers have accepted the goods or services and owe and
are obligated to pay the full amounts stated in the invoices according to their
terms, without dispute, claim, offset, defense, deduction, rejection,
recoupment, counterclaim or contra account, other than as to returns and
allowances as provided in section 8 below (the foregoing being referred to in
this Agreement as "Customer Claims").
4.2 You further represent and warrant that: your legal name is exactly as set
forth on the signature page of this Agreement, you are a duly organized and
validly existing business organization incorporated or registered in the state
of Nevada, and are qualified to do business in all states where required; the
most recent financial statements provided by you to us accurately reflect your
financial condition as of that date and there has been no material adverse
change in your financial condition since the date of those financial statements.
You agree to furnish us with such information concerning your business affairs
and financial condition as we may reasonably request from time to time,
including your and your consolidated subsidiaries financial statements as of the
end of such year, on a consolidated and consolidating basis, audited by a firm
of independent, certified public accountants, selected by you and acceptable to
us.
4.3 You agree that you will promptly notify us of any change in your: name,
state of incorporation or registration, location of your chief executive office,
place(s) of business, and legal or business structure. Further, you agree that
you will promptly notify us of any change in control of the ownership of your
business organization, and of significant lawsuits or proceedings against you.
5. PURCHASE OF ACCOUNTS
We shall purchase the Accounts for the gross amount of the respective invoices,
less: factoring fees or charges, trade and cash discounts allowable to, or taken
by, your customers, credits, cash
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on account and allowances ("Purchase Price"). Our purchase of the Accounts will
be reflected on the Statement of Account (defined in section 10 below), which we
shall render to you, which will also reflect all credits and discounts made
available to your customers.
6. ADVANCES
We do not expect to advance funds from account number 702D to you prior to the
collection of the Accounts, however, at your request, and in our sole
discretion, we may advance funds from account number 742G, to you of up to 70%
of your Circuit City and Boscov's, Inc. Accounts, prior to the collection of
these accounts, but in no event shall such advances exceed $15,000,000.00 at any
one time. We have the right, at any time and from time to time, to hold any
reserves we deem reasonably necessary as security for the payment and
performance of any and all of your Obligations (defined in section 12 below).
All amounts you owe us, including all advances to you and any debit balance in
your Client Position Account (defined in section 10 below), and any Obligations,
are payable on demand and may be charged to your account at any time.
7. PAYMENT OF ACCOUNTS
7.1 All payments received by us on the Accounts will be promptly applied to
either account with us after crediting your customer's account. For account
number 702D the Purchase Price for Accounts with respect to which such
remittances have been received and applied by us during a week, less any amounts
due us, will be transferred and disbursed to you on Wednesday of the following
week, or on the next business day thereafter, if said Wednesday is not a
business day. For account number 742G, in exchange for such application, we
shall charge your account monthly with the cost of three (3) additional business
days on all such payments at the rate charged by us in section 14.1 below on
debit balances. No checks, drafts or other instruments received by us will
constitute final payment of an Account unless and until such items have actually
been collected.
7.2 The amount of the Purchase Price of any Factor Risk Account which remains
unpaid will be deemed collected and will be credited to your account as of the
earlier of the following dates:
(a) the date of the Account's longest maturity if a proceeding or petition
is filed by or against the customer under any state or federal bankruptcy or
insolvency law, or if a receiver or trustee is appointed for the customer; or
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(b) the last day of the third month following the Account's longest
maturity date if such Account remains unpaid as of said date without the
occurrence of any of the events specified in clause (a) above.
If any Factor Risk Account credited to you was not paid for any reason other
than Credit Risk, we shall reverse the credit and charge your account
accordingly, and such Account is then deemed to be a Client Risk Account.
8. CUSTOMER CLAIMS AND CHARGE BACKS
8.1 You must notify us promptly of any matter affecting the value,
enforceability or collectibility of any Account and of all Customer Claims. You
agree to promptly issue credit memoranda or otherwise adjust the customer's
account upon accepting returns or granting allowances. For full invoice credit
memoranda, you agree to send duplicate copies thereof to us and to confirm their
assignment to us. You may continue to do so until we have advised you that all
such credits or allowances on Factor Risk Accounts require our prior written
approval. We shall cooperate with you in the adjustment of Customer Claims, but
we retain the right to adjust Customer Claims on Factor Risk Accounts directly
with customers, upon such terms as we in our sole discretion may deem advisable.
8.2 We may at any time charge back to your account the amount of: (a) any Factor
Risk Account which is not paid in full when due for any reason other than Credit
Risk; (b) any Factor Risk Account which is not paid in full when due because of
an act of God, civil strife, or war; (c) anticipation (interest) deducted by a
customer on any Account; (d) Customer Claims; (e) any Client Risk Account which
is not paid in full when due; and (f) any Account for which there is a breach of
any representation or warranty. A charge back does not constitute a reassignment
of an Account. We shall not bear the Credit Risk on any Account charged back to
you. We shall immediately charge any deduction taken by a customer to your
account.
8.3 We may at any time charge to your account the amount of: (a) payments we
receive on Client Risk Accounts which we are required at any time to turnover or
return (including preference claims); (b) all remittance expenses (including
incoming wire charges, currency conversion fees and stop payment fees), other
than stop payment fees on Factor Risk Accounts; (c) expenses, collection agency
fees and attorneys' fees incurred by us in collecting or attempting to collect
any Client Risk Account or any Obligation (defined in section 12 below); and (d)
our fees for handling collections on Client Risk Accounts which you have
requested us to process, as provided in the Guide (see
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section 18.2 below). You shall indemnify us for, and hold us harmless against,
any loss, liability claim or expense of any kind (including attorneys' fees and
disbursements) arising from: (i) any Customer Claims, (ii) any claim for a
return of any payment on or relating to any Client Risk Account, or (iii) any
other matter, except for any claim for a return of any payment on or relating to
any Factor Risk Account. The foregoing indemnity shall survive any termination
of this Agreement.
9. HANDLING AND COLLECTING ACCOUNTS; RETURNED GOODS
9.1 As owners of the Factor Risk Accounts, we have the right to: (a) bring suit,
or otherwise enforce collection, in your name or ours; (b) modify the terms of
payment, (c) settle, compromise or release, in whole or in part, any amounts
owing, and (d) issue credits in your name or ours. To the extent applicable, you
waive any and all claims and defenses based on suretyship. If moneys are due and
owing from a customer for both Factor Risk Accounts and Client Risk Accounts,
you agree that any payments or recoveries received on such Accounts may be
applied first to any Factor Risk Accounts. Once you have granted or issued a
discount, credit or allowance on any Account, you have no further interest
therein. Any checks, cash, notes or other documents or instruments, proceeds or
property received with respect to the Accounts must be held by you in trust for
us, separate from your own property, and immediately turned over to us with
proper endorsements. We may endorse your name or ours on any such check, draft,
instrument or document.
9.2 As owners and assignees of the Accounts and all proceeds thereof, upon our
written notice, you will, at your expense, set aside, mark with our name and
hold in trust for us, any and all returned, rejected, reclaimed or repossessed
inventory ("Returned Goods"). Further, upon such notice, you agree promptly: to
notify us of all Returned Goods and, at our request, either to deliver same to
us, or to pay us the invoice price thereof, or to sell the same for our account.
10. STATEMENT OF ACCOUNT
Periodically we shall make available to you certain reports reflecting Accounts
purchased, advances made, fees and charges and all other financial transactions
between us during the applicable period ("Reports"). The Reports that shall be
made available to you include a Statement of Account reflecting transactions in
three sections: an accounts receivable account (the "Accounts Receivable"), a
client position account (the "Client Position Account") and a funds in use
account (the "Funds In Use"). The Reports shall be deemed correct and binding
upon you and shall constitute an account stated between us unless we receive
your written statement of exceptions within thirty (30) days after same are made
available to you.
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11. GRANT OF SECURITY INTEREST
11.1 You hereby assign and grant to us a continuing security interest in all of
your right, title and interest in and to all of your now existing and future
(herein collectively the "Collateral"): (a) accounts (including the Accounts),
instruments, documents, chattel paper (including electronic chattel paper), and
any other obligations owing to you; (b) unpaid seller's rights (including
rescission, repossession, replevin, reclamation and stoppage in transit); (c)
rights to any inventory represented by the foregoing, including Returned Goods;
(d) reserves and credit balances arising hereunder; (e) guarantees, collateral,
supporting obligations and letter of credit rights with respect to the
foregoing; (f) insurance policies, proceeds or rights relating to the foregoing;
(g) general intangibles (including all payment intangibles and all other rights
to payment); (h) federal, state and local income tax refunds; (i) cash and
non-cash proceeds of the foregoing; and (i) Books and Records (defined in
section 13 below) evidencing or pertaining to the foregoing.
11.2 You agree to comply with all applicable laws to perfect our security
interest in collateral pledged to us hereunder, and to execute such documents as
we may require to effectuate the foregoing and to implement this Agreement. You
irrevocably authorize us to file financing statements, and all amendments and
continuations with respect thereto, all in order to create, perfect or maintain
our security interest in the Collateral, and you hereby ratify and confirm any
and all financing statements, amendments and continuations with respect thereto
heretofore and hereafter filed by us pursuant to the foregoing authorization.
12. OBLIGATIONS SECURED
The security interest granted hereunder and any lien or security interest that
we now or hereafter have in any of your other assets, collateral or property,
secure the payment and performance of all of your now existing and future
indebtedness and obligations to us, whether absolute or contingent, whether
arising under this Agreement or any other agreement or arrangement between us,
by operation of law or otherwise ("Obligations"). Obligations also includes
ledger debt (which means indebtedness for goods and services purchased by you
from any party whose accounts receivable are factored or financed by us), and
indebtedness arising under any guaranty, credit enhancement or other credit
support granted by you in our favor. Any reserves or balances to your credit and
any other assets, collateral or property of yours in our possession constitutes
security for any and all Obligations.
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13. BOOKS AND RECORDS AND EXAMINATIONS
13.1 You agree to maintain such Books and Records concerning the Accounts as we
may reasonably request and to reflect our ownership of the Accounts therein.
"Books and Records" means your accounting and financial records (whether paper,
computer or electronic), data, tapes, discs, or other media, and all programs,
files, records and procedure manuals relating thereto, wherever located.
13.2 Upon our reasonable request, you agree to make your Books and Records
available to us for examination and to permit us to make copies or extracts
thereof. Also, you agree to permit us to visit your premises during your
business hours and to conduct such examinations as we deem reasonably necessary.
To cover our costs and expenses of any such examinations, we shall charge you a
fee for each day, or part thereof, during which such examination is conducted,
plus any out-of-pocket costs and expenses incurred by us, as provided in the
Guide (see section 18.2 below).
14. INTEREST
14.1 For account number 702D, interest is charged on any adjustments under this
Agreement as of the last day of each month based on the daily debit balances in
your Funds in Use account for that month at a rate equal to the greater of: (a)
the sum of 1.5% plus the JPMorgan Rate (defined below), or (b) 6% per annum. For
account number 742G, interest is charged as of the last day of each month based
on the daily debit balances in your Funds In Use account for that month, at a
rate equal to the greater of: (a) the sum of 0.50% plus the JPMorgan Rate, or
(b) 6% per annum. The JPMorgan Rate is the per annum rate of interest publicly
announced by JPMorgan Chase Bank (or its successor) in New York, New York from
time to time as its prime rate, and is not intended to be the lowest rate of
interest charged by JPMorgan Chase Bank to its borrowers. Any change in the rate
of interest hereunder due to a change in the JPMorgan Rate will take effect as
of the first of the month following such change in the JPMorgan Rate. For
account number 742G, interest will be credited as of the last day of each month
based on the daily credit balances in your Funds In Use account for that month,
at a rate four percent (4%) per annum below the JPMorgan Rate being used to
calculate interest for the period. All interest is calculated on a 360 day year.
14.2 If you, as a client of ours, purchase goods or services from another client
of ours and your payments on these invoices are not timely received, a late
interest payment, at our then late interest
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rate, will be charged to your account with us and shall be deemed an Obligation
under this Agreement.
14.3 In no event will interest charged hereunder exceed the highest lawful rate.
In the event, however, that we do receive interest in excess of the highest
lawful rate, you agree that your sole remedy would be to seek repayment of such
excess, and you irrevocably waive any and all other rights and remedies which
may be available to you under law or in equity.
15. FACTORING FEES AND OTHER CHARGES
15.1 For our services hereunder, you will pay us a factoring fee or charge of
0.30% of the gross face amount of all Factor Risk Accounts and 0.20% of the
gross face amount of all Client Risk Accounts factored with us, but in no event
less than $5.00 per invoice. In addition, you will pay a fee of one-quarter of
one percent (1/4 of 1%) of the gross face amount of each Account for each thirty
(30) day period or part thereof by which the longest terms of sale applicable to
such Account exceed sixty (60) days (whether as originally stated or as a result
of a change of terms requested by you or the customer). For Accounts arising
from sales to customers located outside the fifty states of the United States of
America, you will pay us an additional factoring fee of 0.50% of the gross face
amount of all such Accounts. All factoring fees or charges are due and charged
to your account upon our purchase of the underlying Account. Commencing December
1, 2006, if the actual factoring fees or charges paid to us by you during any
quarter or part thereof ("Period") is less than $112,500.00 ("Minimum Factoring
Fees"), we shall charge your account as of the end of such Period with an amount
equal to the difference between the actual factoring fees or charges paid during
such Period and said Minimum Factoring Fees.
15.2 You agree to pay all costs and expenses incurred by us in connection with
or in any way related to: (i) this Agreement or (ii) the preparation, execution,
administration and enforcement of this Agreement, including all reasonable fees
and expenses attributable to the services of our attorneys (whether in-house or
outside), search fees and public record filing fees. Furthermore, you agree to
pay to us our fees (as more fully set forth in the Guide, see section 18.2
below) including fees for: (a) special reports prepared by us at your request;
(b) wire transfers; (c) handling change of terms requests relating to Accounts;
and (d) your usage of our on-line computer services. Beginning on the first of
the month six months from the date hereof, you also agree to pay us our fees
for: (i) each new customer set-up on our customer accounts receivable data base
and each new customer relationship established for you; (ii) crediting your
account with proceeds of non-factored invoices received by us; and (iii) charge
backs of invoices factored with us that were paid
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directly to you. All such fees will be charged to your account when incurred. We
may change our fees from time to time upon notice to you; however, any failure
to give you such notice does not constitute a breach of this Agreement and does
not impair our ability to institute any such change.
15.3 Any tax or fee of any governmental authority imposed on or arising from any
transactions between us, any sales made by you, or any inventory relating to
such sales is your sole responsibility (other than income and franchise taxes
imposed on us which are not related to any specific transaction between us). If
we are required to withhold or pay any such tax or fee, or any interest or
penalties thereon, you hereby indemnify and hold us harmless therefor and we
shall charge your account with the full amount thereof.
16. TERMINATION
16.1 You may terminate this Agreement only as of an Anniversary Date and then
only by giving us at least sixty (60) days prior written notice of termination.
Upon any termination of this Agreement, we shall be entitled to the unpaid
portion of the Minimum Factoring Fees, if any, for such Period or Periods for
the remainder of the term of this Agreement, as applicable, and as provided in
section 15.1 above, as of the effective date of termination. "Anniversary Date"
shall mean December 31, 2008, and the same date in each year thereafter. Except
as otherwise provided, we may terminate this Agreement at any time by giving you
at least sixty (60) days prior written notice of termination. However, we may
terminate this Agreement immediately, without prior notice to you, upon the
occurrence of an Event of Default (defined in section 17.1 below).
16.2 This Agreement remains effective between us until terminated as herein
provided. Unless sooner demanded, all Obligations will become immediately due
and payable upon any termination of this Agreement.
16.3 All of our rights, liens and security interests hereunder continue and
remain in full force and effect after any termination of this Agreement and
pending a final accounting, we may withhold any balances in your account unless
we are supplied with an indemnity satisfactory to us to cover all Obligations.
You agree to continue to assign accounts receivable to us and to remit to us all
collections on accounts receivable, until all Obligations have been paid in full
or we have been supplied with an indemnity satisfactory to us to cover all
Obligations.
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17. EVENTS OF DEFAULT AND REMEDIES UPON DEFAULT
17.1 It is an "Event of Default" under this Agreement if: (a) your business
ceases or a meeting of your creditors is called; (b) any bankruptcy, insolvency,
arrangement, reorganization, receivership or similar proceeding is commenced by
or against you under any federal or state law; (c) you breach any
representation, warranty or covenant contained in this Agreement; (d) you fail
to pay any Obligation when due, or (e) any default shall have occurred under any
other agreement or arrangement between us.
17.2 After the occurrence of an Event of Default which is not waived by us, we
may terminate this Agreement without notice to you. We shall then have immediate
access to, and may remove from any premises where same may be located, any and
all Books and Records as may pertain to the Accounts, Returned Goods and any
other collateral hereunder. Furthermore, as may be necessary to administer and
enforce our rights in the Accounts, Returned Goods and any other collateral
hereunder, or to facilitate the collection or realization thereof, we have your
permission to: (a) use (at your expense) your personnel, supplies, equipment,
computers and space, at your place of business or elsewhere; and (b) notify
postal authorities to change the address for delivery of your mail to such
address as we may designate and to receive and open your mail. We agree to turn
over to you or your representative all mail not related to the aforesaid
purposes.
17.3 After the occurrence of an Event of Default which is not waived by us, with
respect to any other property or collateral in which we have a security
interest, we shall have all of the rights and remedies of a secured party under
Article 9 of the Uniform Commercial Code. If notice of intended disposition of
any such property or collateral is required by law, it is agreed that five (5)
days notice constitutes reasonable notice. The net cash proceeds resulting from
the exercise of any of the foregoing rights, after deducting all charges, costs
and expenses (including reasonable attorneys' fees) will be applied by us to the
payment or satisfaction of the Obligations, whether due or to become due, in
such order as we may elect. You remain liable to us for any deficiencies. With
respect to Factor Risk Accounts and Returned Goods relating thereto, you hereby
confirm that we are the owners thereof, and that our rights of ownership permit
us to deal with this property as owner and you confirm that you have no interest
therein.
18. MISCELLANEOUS PROVISIONS
18.1 This Agreement, and all attendant documentation, as the same may be amended
from time to time, constitutes the entire agreement between us with regard to
the subject matter hereof, and
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supersedes any prior agreements or understandings. This Agreement can be changed
only by a writing signed by both of us. Our failure or delay in exercising any
right hereunder will not constitute a waiver thereof or bar us from exercising
any of our rights at any time. The validity, interpretation and enforcement of
this Agreement is governed by the laws of the State of California, excluding the
conflict laws of such State.
18.2 The Client Service Guide, as supplemented and amended from time to time
(the "Guide") has been furnished to you or is being furnished to you
concurrently with the signing of this Agreement, and by your signature below you
acknowledge receipt thereof. The Guide provides information on credit approval
processes, accounting procedures and fees. The procedures for Electronic Batch
Transmission are covered in supplemental instructions to the Guide. From time to
time, we may provide you with amendments, additions, modifications, revisions or
supplements to the Guide, which will be operative for transactions between us.
All information and exhibits contained in the Guide, on any screen accessed by
you, and on any print-outs, reports, statements or notices received by you are,
and will be, our exclusive property and are not to be disclosed to, or used by,
anyone other than you, your employees or your professional advisors, in whole or
in part, unless we have consented in writing.
18.3 This Agreement binds and benefits each of us and our respective successors
and assigns, provided, however, that you may not assign this Agreement or your
rights hereunder without our prior written consent.
18.4 Section headings are for convenience only and are not controlling. The use
of "including" means "including without limitation".
18.5 If any provision of this Agreement is contrary to, prohibited by, or deemed
invalid under applicable laws or regulations, such provision will be
inapplicable and deemed omitted to such extent, but the remainder will not be
invalidated thereby and will be given effect so far as possible.
18.6 You further represent and covenant that you: (i) are familiar with all
applicable anti-money laundering laws and guidelines ("AML Policies") of the
United States of America, including the USA Patriot Act; (ii) acknowledge that
your transactions with residents of the United States of America are subject to
the AML Policies of the United States of America, including the USA Patriot Act;
(iii) will make all reasonable efforts to comply with all applicable AML
Policies, including, if appropriate, the USA Patriot Act; (iv) acknowledge that
our performance hereunder is also subject to our compliance with all applicable
AML Policies, including the USA Patriot Act; and (v) will provide all
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such information about your ownership, officers, directors and business
structure as we may require.
19. JURY TRIAL WAIVER
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO HEREBY WAIVES ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING DIRECTLY OR
INDIRECTLY OUT OF THIS AGREEMENT, OR ANY OTHER AGREEMENT OR TRANSACTION BETWEEN
THE PARTIES HERETO. NOTWITHSTANDING THE PLACE OF EXECUTION HEREOF, EACH PARTY
HERETO AGREES THAT THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS
AGREEMENT AND ALL RIGHTS HEREUNDER SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
CALIFORNIA.
The parties to this Agreement prefer that any dispute between or among them be
resolved in litigation subject to the above jury trial waiver. If, and only if,
a pre-dispute jury trial waiver of the type provided for herein is unenforceable
in litigation to resolve any dispute, claim, cause of action or controversy
under this Agreement or any other document (each, a "Claim") in the venue where
the Claim is being brought pursuant to the terms of this Agreement, then, upon
the written request of any party, such Claim, including any and all questions of
law or fact relating thereto, shall be determined exclusively by a judicial
reference proceeding. Except as otherwise provided herein, venue for any such
reference proceeding shall be in the state or federal court in the County or
District where venue is appropriate under applicable law (the "Court"). The
parties shall select a single neutral referee, who shall be a retired state or
federal judge. If the parties cannot agree upon a referee within 30 days, the
Court shall appoint the referee. The referee shall report a statement of
decision to the Court. Notwithstanding the foregoing, nothing in this paragraph
shall limit the right of any party at any time to exercise self-help remedies,
foreclose against collateral or obtain provisional remedies (including without
limitation, requests for temporary restraining orders, preliminary injunctions,
writs of possession, writs of attachment, appointment of a receiver, or any
orders that a court may issue to preserve the status quo, to prevent irreparable
injury or to allow a party to enforce its liens and security interests). The
parties shall bear the fees and expenses of the referee equally unless the
referee orders otherwise. The referee also shall determine all issues relating
to the applicability, interpretation, and enforceability of this section. The
parties acknowledge that any Claim determined by reference pursuant to this
section shall not be adjudicated by a jury.
[Signatures on following page]
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Sincerely,
THE CIT GROUP/COMMERCIAL SERVICES,
INC.
By: /s/ XXXXXX X. XXXXX
---------------------------------
Name: XXXXXX X. XXXXX
Title: S.V.P
READ AND AGREED TO:
SYNTAX CORPORATION
By: /s/ XXXXXX XXXX
---------------------------------
Name: XXXXXX XXXX
Title: C.P.O
ACCEPTED AT LOS ANGELES, CALIFORNIA
THE CIT GROUP/COMMERCIAL SERVICES, INC.
By: /s/ Xxxxxxx Xxxx
---------------------------------
Name: Xxxxxxx Xxxx
Title: S.V.P
14
