PACIFIC BUSINESS FUNDING CORPORATION
20195 Stevens Creek Blvd., Suite 220
Cupertino, California 95014
Telephone: (408) 255-9300
Facsimile: (408) 255-9313
FACTORING AGREEMENT
This Factoring Agreement (the "Agreement"), dated as of JUNE 26, 1997,
is entered into by and between CENTURA SOFTWARE CORPORATION 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 Corporation, a California corporation ("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 hereto. 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 Purchaser. At the request of Purchaser, Seller and Purchaser
shall jointly 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 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 1.2 percent (1.2%) 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.
(PAGE 1 OF 5)
2.2. ADMINISTRATIVE FEE. Seller shall pay to Purchaser on each
Settlement Date, an Administrative Fee equal to ZERO percent (0%) 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 on 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 sole 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 immediately upon learning of any Adjustment asserted
by any Account Debtor.
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 full face amount
of any Purchased Account 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 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 sole 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 any
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
(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.
(PAGE 2 OF 5)
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
discretion, and regardless of whether 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, sue, 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, and dispose of all mail addressed
to Seller for the purpose of collecting the Purchased Accounts; (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 on 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;
(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 the payment for, or the quality or 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 time Seller 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 Purchaser, 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 and to 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, chattel paper, contract rights,
documents, instruments, letters of credit, banker's acceptances, drafts,
securities and general intangibles, including all claims, causes of
action, deposit accounts, rights to receive tax
(PAGE 3 OF 5)
refunds, rights in and claims under insurance policies (including rights
to unearned premiums), customer lists, copyrights, patents, trademarks,
rights under license agreements, and other intellectual property of every
kind and other rights to payment;
(B) All inventory;
(C) All monies, remittances, and other amounts due under this Agreement
and any other agreement between Purchaser and Seller;
(E) All farm products, crops, timber, minerals, and the like (including
oil and gas);
(F) All books and records relating to the foregoing, including all
computer programs, printed output and computer readable data;
(G) All accessions to, and substitutions and replacements for, all of the
foregoing; and
(H) 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, or Seller is generally not paying its debts as
they become due or is left with unreasonably small capital;
(F) Any involuntary lien, garnishment, attachment or the like is issued
against or attaches to the Purchased Accounts 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, attorneys' 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 Section 10 and any other Obligations,
such amounts shall bear interest at a per annum rate equal to the per annum
rate of the Finance Fees until the earlier of (A) payment in good funds or
(B) entry of a final judgment therefor, at which time the principal amount of
any money judgment remaining unsatisfied shall accrue interest at the highest
rate allowed by applicable law.
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.
(PAGE 4 OF 5)
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.
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 owing 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, and 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.
IN WITNESS WHEREOF, Seller and Purchaser have executed this Agreement on the
day and year written above.
"PURCHASER" "SELLER"
PACIFIC BUSINESS FUNDING CORPORATION By /s/ Richard A. Gelhaus
---------------------------------
By /s/ William Chronert Title Senior Vice President and CFO
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Title President
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ADDRESS OF SELLER, CHIEF EXECUTIVE
OFFICE AND LOCATION OF COLLATERAL
OTHER LOCATIONS OF COLLATERAL,
IF ANY, IN ADDITION TO ABOVE: Street: 1060 Marsh Road
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- ------------------------------------- City: Menlo Park
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- ------------------------------------- County: San Mateo
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- ------------------------------------- State: CA
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- ------------------------------------- Zip Code: 94025
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Telephone No.: (415) 321-9500
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Facsimile No.: (415) 321-5471
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(PAGE 5 OF 5)