EXHIBIT 10.15, Page 1 of 12
FORM OF
MASTER FACTORING AGREEMENT
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(Periodic Spot)
THIS MASTER FACTORING AGREEMENT (this "Agreement") is made this 22/nd/ day of
August, 2001 by and between the Assignor, General Kinetics Incorporated
(referred to throughout this Agreement as "you", "your" and "yours"), and the
Assignee, LINK2IT CORPORATION (referred to throughout this Agreement as "we",
"us", our" and "ours").
1. Sale and Assignment of Accounts Receivable.
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1.1. Purchase and Sale of Accounts. From time to time during the term
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of this Agreement, you will offer to sell to us selected of your Accounts
(hereinafter defined) and we will consider purchasing, in our sole discretion,
such Accounts which are acceptable to us. As used herein, the term "Accounts"
means, collectively, accounts, contract rights and other forms of obligation
arising in the ordinary course of business from the sale or lease of goods or
rendition of services. Any purchase of Accounts will be evidenced by the
execution of an Agreement for Assignment and Transfer of Accounts Receivable
(each an "Assignment Agreement") in the form of Exhibit A. Any Account which we
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purchase is hereinafter called an "Assigned Account." Each purchase shall be
subject to the terms of this Agreement.
1.2. Purchase Price. We will pay to you for each Assigned Account a
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price (a "Purchase Price") equal to eighty-five percent (85%) of the outstanding
amount of such Account, provided that we may, in our sole discretion,
unilaterally decrease the Purchase Price in the event of any breach of the
representations and warranties set forth in Paragraph of 2.2 below or any other
Default (as hereinafter defined) under this Agreement.
1.3. Sale and Assignment of Accounts. You agree to sell, assign and
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transfer to us all of your right, title and interest in and to the Assigned
Accounts, together with (a) any notes or drafts related thereto, (b) the
contracts under which such Accounts arose, (c) your books and records relating
thereto, (d) any returned, rejected or repossessed goods (if any) giving rise to
such Accounts, (e) your rights as an unpaid vendor or lienor, (f) all rights of
stoppage in transit, replevin, repossession and reclamation, (g) all security
therefor and guarantees thereof, and (h) all rights to insurance proceeds
resulting therefrom (all of the foregoing being included in the term "Assigned
Accounts").
1.4. Account Documentation. Upon acceptance by us of any Assignment
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Agreement, you will deliver to us: (a) copies of all documents evidencing the
Accounts listed thereon and (b) such other documentation as we require, in form
satisfactory to us in all respects. You will maintain all shipping documents,
delivery receipts and invoices relating to Assigned Accounts, available for
inspection and copying by us, and you will deliver them to us promptly upon our
request. Each sale of Accounts will be reflected as a sale on your books and
financial statements.
1.5. Processing Fee. In consideration of our purchase of Accounts
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from you and our rendition of processing and monitoring services, you agree to
pay to us a fee (the "Processing Fee") as set out in the rate sheet attached
hereto as Exhibit B.
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EXHIBIT 10.15, Page 2 of 12
1.6. Payments on Accounts. You shall, and we may, prior to or
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immediately upon purchase, notify all persons obligated to make payments with
respect to Accounts (collectively, "Account Debtors") either (a) in our sole
discretion, to make any or all payments on or with respect to Accounts directly
into a special banking account over which we have exclusive dominion, control
and power of access and withdrawal (the "Collection Account"), or (b) in our
sole discretion, to make any or all payments with respect to Accounts by check
delivered directly to us which we may endorse and deposit to our account, and
you shall cooperate with us as we may request to effect any such payment. In
connection therewith, you agree to reference our payment instructions on all
invoices submitted to Account Debtors. In addition, if any Account Debtor is an
agency, department or instrumentality of the United States Government, you shall
execute such forms of notice and assignment, and shall conform to all applicable
procedures (including making any necessary contract modifications), as may be
required pursuant to the Federal Assignment of Claims Act of 1940, as amended,
in order to perfect our rights to directly receive payments with respect to the
Accounts of such Account Debtor. To facilitate our collection and receipt of
payments from Account Debtors, you hereby irrevocably constitute and appoint us,
or any of our agents or employees, as your lawful attorney-in-fact (coupled with
an interest) to exercise at any time any of the following powers: (i) to
receive, endorse and deposit all payments from Account Debtors; (ii) to transmit
to any party notice that you have granted to us a security interest in the
Accounts or that an Assigned Account has been sold to us; (iii) to institute any
proceedings deemed by us necessary to effect collection of Accounts; (iv) to
settle, compromise or litigate any dispute concerning any Assigned Account; and
(v) to sign your name on any financing statements or any amendment or
continuation statement relating thereto with respect to any Collateral
(hereinafter defined). Any act of ours as your lawful attorney-in-fact shall not
render us liable for any acts of omission or commission, nor for any error of
judgment or mistake of fact or law. Alternatively, you hereby authorize us to
collect and receive payments from Account Debtors in our own name. If you
receive any payment on any Account, you shall promptly remit such payment in the
form received (with any necessary endorsement) directly to us or in our sole
discretion deposit such payment in the Collection Account, or our other account.
Until so remitted, you will hold such payment in trust for us separate and apart
from all of your other funds.
1.7. Remittance of Holdback and Payments on Accounts Not Assigned.
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Upon our receipt of any payment under an Assigned Account, so long as you are
not in default hereunder, we shall remit to you the difference, if any, between
the payment received by us and the Purchase Price of that Assigned Account, less
all unpaid Processing Fees (which amount is herein called the "Holdback"). If an
Assigned Account is part of a group of Accounts for which we paid an aggregate
Purchase Price, the Holdback shall not be paid until an amount equal to the
aggregate Purchase Price plus Processing Fees has been paid to us by the Account
Debtors on the group of Accounts. Upon our receipt of any payment under an
Account (other than an Assigned Account), so long as you are not in default
hereunder, we shall remit such payment to you promptly or, at your request,
apply such payment as you may direct. Remittances required by this Paragraph 1.7
will be paid to you weekly.
2. Representations Warranties and Promises. To induce us to purchase
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Accounts from time to time, you make the following representations warranties
and promises, each of which survives the execution and delivery of this
Agreement and is deemed to be incorporated by reference in each Assignment
Agreement:
2.1. Power and Authority. You have all requisite power and authority
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to execute, deliver and perform this Agreement and each Assignment Agreement,
and such performance does not contravene your articles of incorporation, by-laws
or partnership agreement, as applicable, or any other agreement by which you are
bound.
2.2. Representations And Warranties with Respect to Accounts. With
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respect to each Account: (a) your principal place of business and your books and
records relating to the Accounts are located at the address set forth at the end
of this Agreement; (b) you are the sole owner of each Account and have the right
to grant to us a
EXHIBIT 10.15, Page 3 of 12
lien on and security interest in the Accounts, and the Accounts are free and
clear of all liens and encumbrances (including liens and encumbrances
subordinate to our lien and security interest), except for those created by this
Agreement or permitted by us in writing, and you will not assign, sell,
transfer, pledge, grant a security interest in or encumber or otherwise dispose
of or abandon any part or all of the Accounts; (c) you have made proper entries
in your books disclosing the sale of Accounts to us; (d) each of your Account
Debtors has legal capacity to contract and is indebted to you in the amount
indicated in your books and records; (e) each Account is valid, legally
enforceable and represents a bona fide undisputed indebtedness; (f) no Account
is subject to any valid defense, offset, counterclaim or allowance or is
contingent; (g) each Account Debtor is solvent, and each Account will be paid in
full on or before its due date; (h) no agreement for any deduction or allowance
of any kind exists or will be made by you; (i) all information appearing in your
books and records relating to each Account is true and correct in all respects;
and (j) all signatures and endorsements appearing on the invoices and documents
relating to the Accounts are genuine, and all signatories and endorsees have
full capacity and authority and were fully authorized to contract for the
purchase or lease of the goods and/or services giving rise to the Accounts.
2.3. Books and Records; Inspections. You will maintain books and
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records in accordance with generally accepted accounting principles consistently
applied. We shall have full access to, and the right to audit and make copies
from, your books and records relating to the Collateral or this Agreement. You
will furnish to us such financial statements and other information regarding
your business as we may request.
2.4. Affiliates. You have no subsidiaries or other affiliates other
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than those disclosed in writing to us prior to the date of this Agreement and no
additional subsidiaries or other affiliates shall be created on or after the
date of this Agreement without our prior written consent, which consent may be
withheld in our absolute discretion or conditioned upon any such subsidiary or
other affiliate entering into a factoring agreement similar to this Agreement
with us.
2.5. Title to and Condition of Collateral Other than Accounts. You
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are the sole owner of the Collateral (other than the Accounts, which are covered
by Paragraph 2.2 above) and have the right to grant to us a lien on and security
interest is such Collateral; and the Collateral is, or will be when acquired by
you, free and clear of all liens and encumbrances (including liens and
encumbrances subordinate to our lien and security interest), except for those
created by this Agreement or permitted by us in writing. As to inventory which
is included in the Collateral, such inventory is not stored with a bailee,
warehouseman or similar party without our prior written consent, such inventory
is not under consignment to or from any person, and such inventory is currently
salable or usable in the normal course of your business.
2.6. Compliance with Laws, Etc. You are in compliance in all material
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respects with all applicable federal, state and local laws, statures, orders,
rules, regulations and judgments.
2.7. No Material Adverse Changes. There has been no material adverse
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change in your management, financial condition or business prospects or in the
personal financial condition of any guarantor of your Obligations under this
Agreement from that represented in any application, financial statement or other
information provided to us prior to the date of this Agreement.
2.8. Financial Statements. Within thirty (30) days following the end
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of each calendar month you will provide to us a balance sheet as of the end of
such month, and an income statement for the current fiscal year to date, each in
a form acceptable to us and prepared in accordance with generally accepted
accounting principles. Within ninety (90) days following the end of each fiscal
year, you will provide to us financial statements for such fiscal year prepared
by an independent accountant acceptable to us, which financial statements shall
(a) be
EXHIBIT 10.15, Page 4 of 12
in a form acceptable to us, (b) be prepared in accordance with generally
accepted accounting principles, and (c) include a balance sheet and income
statement and, if required by us, a statement of cash flows.
3. Account Disputes; Breaches of Representations, Warranties and
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Promises; Repurchase of Accounts.
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3.1. Dispute Resolution Authority. You will notify us promptly of and,
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if requested by us, will settle all disputes concerning any Assigned Account at
your sole cost and expense. However, you shall not without our prior written
consent settle, compromise or adjust any Assigned Account or grant any
additional discounts, allowances or credits thereon. We may, but are not
required to, attempt to settle, compromise or litigate the dispute upon such
terms as we in our sole discretion deem advisable, for your account and risk and
at your sole expense.
3.2 Repurchase of Assigned Account. If any Assigned Account is not
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paid on or before ninety (90) days from its invoice date or if there exists any
breach of your representations, warranties or promises under this Agreement with
respect to any Assigned Account you agree upon demand by us (whether written or
oral) and at our sole option, either (i) to immediately repurchase from us such
Assigned Account (or the unpaid portion thereof) for the amount of the
applicable Purchase Price (or the unpaid portion thereof), together with all
unpaid Processing Fees, or (ii) to immediately accept a resale from us of such
Assigned Account in exchange for a sale of an Assigned Account of equal or
greater value. Upon the occurrence of any Default (hereinafter defined), or if
there exists any breach of your representations, warranties or promises under
this Agreement with respect to Assigned Accounts which, in the aggregate,
constitute not less than ten percent (10%) of all outstanding Assigned Accounts,
you agree, upon demand by us (whether written or oral), to immediately
repurchase from us all outstanding Assigned Accounts (or the unpaid portions
thereof) for the aggregate amount of the applicable Purchase Prices (or the
unpaid portions thereof), together with all unpaid Processing Fees, and to
immediately pay to us all other Obligations (as defined below) then due and
payable.
4. Security Interest in Collateral.
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4.1. Grant of Security Interest; Collateral Defined. To secure
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payment and performance of all of your obligations under this Agreement,
including, without limitation, repurchase and resale obligations, Processing
Fees, Servicing Fees, costs and expenses (collectively, the "Obligations"), you
pledge, assign and grant to us a continuing lien and security interest in the
following property, both now owned and existing and hereafter created, acquired
and arising, regardless of where located (collectively, the "Collateral"):
(1) all of your Accounts (whether or not accepted by us or
specifically sold to us or resold by us to you pursuant to Paragraph 3.2 and
whether arising before or after termination of this Agreement);
(2) all of your present and future instruments, documents,
chattel paper and general intangibles (as those terms are defined in the Uniform
Commercial Code);
(3) all reserves, balances, deposits, credits, moneys, securities
and other property at any time owing or belonging to you which are now or
hereafter in the possession of, or in transit to, us, whether for safekeeping,
pledge or otherwise (including, without limitation, all Holdbacks at any time
owing by us to you, whether then or thereafter payable, under this Agreement);
(4) all of your claims against us at any time existing;
(5) all books and records and other property relating to the
Assigned Accounts, the Collateral and your Obligations; and
EXHIBIT 10.15, Page 5 of 12
(6) all cash and non-cash proceeds and products of any of the
foregoing, including any claim against third parties in any way related to the
foregoing.
We are irrevocably authorized at any time to charge your account
(and any credit balance on our books in your favor) for the amount of any or all
of your Obligations.
4.2. Perfection of Security Interest. You shall execute and
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deliver to us such documents and instruments, including, without limitation,
Uniform Commercial Code ("UCC") financing statements, as we may request from
time to time in order to evidence and perfect our security interest in the
Collateral.
5. No Agency. Nothing in this Agreement shall be construed to
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constitute us as your agent or to obligate us to assume any of your obligations
with respect to any Account. We will not have any liability for any error or
omission or delay occurring in the settlement, collection or payment of any
Account. Notwithstanding the foregoing, if you fail to perform any obligation
you are required to perform in order to maintain the obligation of an Account
Debtor to make payments on an Assigned Account, we may (but shall be under no
obligation to) perform, or retain others to perform, such obligation, at your
sole expense, and such expense (together with interest thereon from the date
incurred to the date paid at the rate of ten percent (10%) per annum) shall
constitute part of your Obligations; upon demand by us, you agree to immediately
reimburse us for any such expense (and accrued interest thereon) we incur.
6. Costs and Expenses. You shall reimburse us on demand for all costs
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incurred by us in efforts to enforce payment of Assigned Accounts. All fees,
costs and expenses (including attorneys' fees), of any kind and nature, which we
may incur in (a) preparing or negotiating this Agreement or otherwise incurred
by us in connection with our entering into this Agreement, (b) filing financial
statements, (c) making lien or title examinations, (d) protecting, maintaining,
preserving or enforcing Assigned Accounts, (e) defending or prosecuting any
actions or proceedings related to this Agreement, or (f) defending or
prosecuting any action, claim or demand arising after the termination of this
Agreement but which relates to or arises out of this Agreement shall be added to
and deemed part of your Obligations. In addition, in the absence of a Default
under Paragraph 7 below, you shall be responsible for the fees, costs and
expenses of all field examinations performed during the term of this Agreement,
in addition to the initial field examination performed prior to the date of this
Agreement.
7. Default. All of your Obligations shall, at our option, be and become
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immediately due and payable without notice or demand upon the occurrence of any
one or more of the following events (each a "Default"): (i) if you fail to pay,
when due end payable, any of your Obligations; (ii) if any of your
representations or warranties are false or misleading in any material respect;
(iii) if you fail to perform or otherwise comply with any promise contained in
this Agreement or any Assignment Agreement; (iv) if your present business
operation is discontinued or suspended, or if any you become insolvent or unable
to meet your debts as they mature, or if any proceeding is commenced against you
for relief under any provision of any federal or state bankruptcy, insolvency or
other similar law, or if any injunction, attachment, judgment or lien is issued
or filed against you or any of your property, or if a receiver, custodian or
trustee of any kind is appointed for you or any of your property; or (v) if a
default occurs under any Guaranty Agreement executed in conjunction with this
Agreement and is not cured within any applicable grace period.
8. Remedies.
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8.1 Our Rights. Upon the occurrence of any Default, without
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further notice to you, we shall have the right to (i) decrease the Purchase
Price to be paid to you pursuant to Paragraph 1.2 above; (ii) cease purchasing
Accounts (notwithstanding the provisions of this clause (ii), you acknowledge
that the purchase of
EXHIBIT 10.15, Page 6 of 12
Accounts by us is in our sole discretion whether or not a Default shall have
occurred); (iii) terminate this Agreement and enforce the liquidated damages
provisions of Paragraph 9.4; (iv) enforce against you immediate payment of all
of your Obligations; (v) collect all amounts due and owing on all Accounts; (vi)
require you to assemble the Collateral and make it available to us at a place
designated by us; (vii) enter upon your premises to take possession of the
Collateral; and (vii) appropriate, set off and apply the Collateral to the
payment of your Obligations in such order and manner as we in our sole
discretion shall determine, or settle, compromise or release, in whole or in
part, any amounts owing on the Collateral, or prosecute any proceeding with
respect to the Collateral, or extend the time of payment of any of all of the
Collateral, or issue credits regarding the Collateral, or sell, assign and
deliver the Collateral (or any part thereof), at public or private sale, and
apply the net cash proceeds resulting from the exercise of any of the foregoing
rights or remedies to the payment of your Obligations in such order as we in our
sole discretion may elect, and you shall remain liable to us for any deficiency.
8.2. Confession of Judgment. Upon the occurrence of a Default,
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you hereby authorize and empower any attorney designated by us or any clerk of
any court of record to appear for you in any court of record and confess
judgment against you without prior hearing, in favor of us for and in the amount
of your Obligations then outstanding, costs of suit and attorneys' fees in an
amount equal to 10% of the Obligations then outstanding. Such authority and
power may be exercised on one or more occasions, from time to time, in the same
or different jurisdictions, as often as we shall deem necessary or desirable,
for all of which this Agreement shall be a sufficient warrant.
8.3. Application of Collections Deficiency. All collections we
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receive from realizing upon the Collateral, less expenses of collection
(including, without limitation, attorneys' fees and court costs) incurred by us,
shall be applied to your Obligations. If for any reason collections received by
us exceed your Obligations, we will account to you for the surplus. However, if
the collections we receive are insufficient to pay all of your Obligations, you
shall be liable to us for the deficiency.
8.4. Remedies Cumulative. Each right, power and remedy
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provided for herein or otherwise existing shall be cumulative and concurrent and
shall be in addition to every other right, power and remedy existing hereunder,
by law or otherwise. The exercise by us of any one or more such rights, powers
or remedies shall not preclude the simultaneous or later exercise by us of any
or all such other rights, powers or remedies.
8.5. Chargeback Not a Resale. The chargeback of an Assigned
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Account to you shall not constitute a resale of such Account to you, and title
thereto and to the goods, if any, represented thereby shall remain in us unless
such chargeback is accompanied by a simultaneous sale and assignment of another
Account as provided in Paragraph 3.2 of this Agreement, or until all of your
Obligations are paid in full.
9. Term of Agreement and Termination.
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9.1. Initial Term; Renewal. The initial term of this Agreement
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shall be three (3) months, commencing with the date of the first purchase of
Accounts under this Agreement. Unless terminated in accordance with this
Paragraph 9, the provisions of this Agreement shall automatically renew for
successive one (1) month periods without any notice or action on the part of
either party hereto. During the term of this Agreement, you shall deal
exclusively with us in the factoring, financing and sale of Accounts.
9.2. Termination in Absence of Default. This Agreement may be
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terminated at any time (a) by us giving you written notice stating a termination
date not less than ten (10) days after the date such notice is mailed or
dispatched or (b) by you giving us written notice stating a termination date not
less than fifteen (15) days after the date such notice is mailed or dispatched.
In the event that you elect to terminate this Agreement
EXHIBIT 10.15, Page 7 of 12
on a date other than the end of the initial or renewal term, you shall pay to us
a termination fee in an amount equal to $500.00 for each month or portion of a
month remaining in the initial term. The termination fee is not, and shall not
be construed to be, liquidated damages.
9.3. Effect of Termination. Notwithstanding any termination,
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all of our rights and interests, all of your Obligations, and all of the terms,
conditions and provisions hereof shall continue in full force and effect until
all transactions entered into prior to the effective date of termination have
been fully concluded and all of your Obligations have been paid in full. After
termination of this Agreement, you shall pay to us on demand the amount of your
Obligations then outstanding and any of your Obligations arising thereafter.
9.4. Termination After Default; Liquidated Damages. If a
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Default occurs hereunder, we shall have the right at our sole option to
terminate this Agreement at any time thereafter without notice to you. If we
exercise such option, in addition to all other rights and remedies we may have,
and in addition to all of your other Obligations, you agree to pay to us upon
demand as liquidated damages for our lost Processing Fee earnings, a sum equal
to: $5,000.00 for each month or portion of a month remaining in the initial term
of this Agreement.
10. Notices. Notices shall be deemed given when sent or
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dispatched by certified or registered mail or private overnight express mail,
postage or charges prepaid, or by facsimile copy, to the parties at their
respective addresses set forth below.
11. Binding Effect; Complete Agreement. This Agreement will
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bind you and your successors and assigns, and will inure to the benefit of us
and our successors and assigns, and sets forth the complete agreement between
the parties.
12. Waiver. No delay or failure by us in exercising any of
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our rights or remedies shall operate as a waiver of such or of any other right
or remedy, and no waiver shall be valid unless in writing signed by us and then
only to the extent therein set forth.
13. Governing Law, Etc. This Agreement shall be governed by
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and interpreted according to the laws of the State of New York. You consent to
and acknowledge the right of all courts, administrative agencies, boards and/or
quasi-judicial bodies in the State of New York, including without limitation the
New York State Supreme Court, New York County; the United States District Court
for the Southern District of New York; and the United States Bankruptcy Court
for the Southern District of New York, to exercise personal jurisdiction over
you with respect to any dispute or controversy between you and us relating to
this Agreement or to any transaction in connection herewith, whether arising
during the term of this Agreement or after its termination, except as otherwise
provided in Paragraph 14 below. Further, you waive personal service of the
summons and complaint or other process to be issued and agree that service of
such summons and complaint or other process may be made by register or certified
mail addressed to you at your address appearing herein, whether arising during
the term of this Agreement or after its termination. You agree that any action
which you initiate against us, whether initiated during the term of this
Agreement or after its termination, will only be filed in the courts of the
State of New York or the federal courts located in the State of New York, that
is, in the New York State Supreme Court, New York County, the United States
District Court for the Southern District of New York or the United States
Bankruptcy Court for the Southern District of New York, consistent with the
subject matter jurisdiction requirements of those courts.
14. Arbitration of Certain Claims. You and we each agree that
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any claim or demand arising out of any alleged breach of this Agreement or
arising out of any dispute or controversy under or relating to this Agreement,
other than any confession of judgment proceedings brought pursuant to Paragraph
8.2 above, in
EXHIBIT 10.15, Page 8 of 12
which the amount claimed or demanded is $100,000 or less, will be decided by a
single arbitrator under the Rules of the American Arbitration Association and
the decision of that arbitrator shall be final and binding. You and we further
agree than any dispute as to whether the amount of any claim or demand is
$100,000 or less will be decided by a single arbitrator under the Rules of the
American Arbitration Association. You and we agree that any arbitration shall
take place in New York, New York, or in some other mutually agreed upon
location. You and we agree that the prevailing party, as determined by the
arbitrator, shall be awarded reasonable attorneys' fees incurred by the
prevailing party in connection with the arbitration and any post-arbitration
proceedings. You and we agree that the prevailing party shall be awarded the
costs of the arbitration, including all arbitration fees and expenses of the
arbitrator and all other expenses reasonably incurred in conducting the
arbitration as determined by the arbitrator.
15. Situs of Contract. You understand and agree, for all
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purposes, that the situs of the making and performance of this Agreement is and
shall be construed to be the State of New York.
16. Waiver of Jury Trial. You and we each agree that any suit,
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action or proceeding, whether claim or counterclaim, brought or instituted by
either party hereto or any successor or assign of any party under or with
respect to this Agreement or which in any way relates, directly or indirectly,
to this Agreement or any event, transaction or occurrence arising out of or in
any way connected with this Agreement or the dealings of the parties with
respect thereto shall be tried only by a court and not by a jury. EACH PARTY
HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR
PROCEEDING.
17. Legal Counsel. You have had the opportunity to obtain
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legal counsel, and you agree that you fully understand the terms, provisions and
legal consequences of this Agreement.
IT IS THE INTENTION OF EACH OF THE UNDERSIGNED PARTIES THAT THE OTHER PARTY MAY
RELY ON A FACSIMILE COPY OF THE SIGNATURE OF ITS DULY AUTHORIZED OFFICER IN
PROCEEDING IN CONNECTION WITH THE MATTERS SET FORTH HEREIN AND THAT UPON THE
EXCHANGE OF SUCH FACSIMILE SIGNATURES, THIS MASTER FACTORING AGREEMENT SHALL BE
BINDING UPON THE PARTIES, WHETHER OR NOT HARD COPIES OF THIS MASTER FACTORING
AGREEMENT ARE EVER EXCHANGED BETWEEN THE PARTIES.
EXHIBIT 10.15, Page 9 of 12
IN WITNESS WHEREOF, this Agreement is executed and delivered under seat
as of the date first above written.
ASSIGNOR: ASSIGNEE:
GENERAL KINETICS INCORPORATED LINK2IT CORPORATION
By: _________________________________ (SEAL) By: _______________________ (SEAL)
Title: Title:
Address: 10688-D Crestwood Drive Address: 16340 Roscoe Boulevard
Manassas, VA 20109 Van Nuys, CA 91406
Facsimile No.: (703) 331-5592 Facsimile No.: (818) 895-9601
State of Virginia
TO WIT:
County of Fairfax
I HEREBY CERTIFY that on this ___ day of August, 2001, before me, a
Notary Public of said State, personally appeared _____________, known to me (or
satisfactorily proven) to be the person whose name is subscribed to the
foregoing Agreement and acknowledged that he executed the same for the purposes
therein contained.
WITNESS my hand and Notarial Seal.
Notary Public
My Commission Expires:
EXHIBIT 10.15, Page 10 of 12
EXHIBIT A
AGREEMENT FOR
ASSIGNMENT AND TRANSFER OF ACCOUNTS RECEIVABLE
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ASSIGNOR: ASSIGNEE:
GENERAL KINETICS INCORPORATED LINK2IT CORPORATION
(referred to herein as "you", "your" (referred to herein as "we", "us",
and "yours"). "our"'and "ours").
Subject to the terms and conditions of that certain Master Factoring
Agreement executed between you and us (the "Factoring Agreement"), we agree as
follows:
l. Assignment of Accounts. In consideration of our payment to you of
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the Purchase Price shown in Schedule A, receipt of which is hereby acknowledged,
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you hereby sell, assign and transfer to us all of your right, title and interest
in and to the Accounts arising from the invoices identified in Schedule A.
2. Representations and Warranties. You confirm that the representations
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and warranties set forth in the Factoring Agreement, including without
limitation those set forth in Section 2.2 thereof, are true and correct in all
respects on the date of this Agreement and that no Default exists under the
Factoring Agreement on the date of this Agreement.
3. Repurchase Obligations. If any Assigned Account is not paid on or
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before the earlier of ______days from its invoice date or if there exists any
breach of your representations warranties or promises under the Factoring
Agreement with respect to any Assigned Account, you agree, upon demand by us
(whether written or oral) and at our sole option either (a) to immediately
repurchase from us such Assigned Account (or the unpaid portion thereof) for the
amount of the applicable Purchase Price (or the unpaid portion thereof),
together with all unpaid Processing Fees, or (b) to immediately accept a resale
from us of such Assigned Account in exchange for a sale of an Assigned Account
of equal or greater value. Upon the occurrence of any Default or if there exists
any breach of your representations, warranties or promises under the Factoring
Agreement with respect to Assigned Accounts which, in the aggregate, constitute
not less than ten percent (10%) of all outstanding Assigned Accounts, you agree,
upon demand by us (whether written or oral), to immediately repurchase from us
all outstanding Assigned Accounts or the unpaid portions thereof) for the
aggregate amount of the applicable Purchase Prices (or the unpaid portions
thereof) together with all unpaid Processing Fees, and to pay to us all other
Obligations then due and payable.
4. Effective Date. The effective date of this Agreement shall be the
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date set forth below as the effective date of our acceptance.
5. Capitalized terms used herein and not defined herein shall have the
meaning set forth in the Factoring Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement under
their respective seals.
ASSIGNOR: ASSIGNEE:
GENERAL KINETICS INCORPORATED LINK2IT CORPORATION
By: _________________________________ (SEAL) By: ______________________ (SEAL)
Title: Title:
Dated:_____________________________________ Effective Date:__________________
EXHIBIT 10.15, Page 11 of 12
SCHEDULE A
Schedule #_____________
Date________________________
SCHEDULE OF ASSIGNED ACCOUNTS
The Account(s) identified below [____] invoices, contracts and/or other evidence
[___](is) (are) being sold, assigned and transferred by the Assignor to LINK2IT
CORPORATION pursuant to the terms and conditions of the foregoing Assignment
Agreement
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ACCOUNT DEBTOR Customer Invoice Contract Invoice Date Ship Invoice
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TOTALS
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(a) Total Amount Invoices on this Schedule $_______________________
(b) Purchase Price______________________%
Total Advance Requested (line a x line b) $________________________
EXHIBIT 10.15, Page 12 of 12
EXHIBIT B
RATE SHEET
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GENERAL KINETICS INCORPORATED
Level of Funding Percentage Discount Per 15 Days
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As Link2It may determine from time to time. 1%
In the event General Kinetics Incorporated does not sell LINK2IT CORPORATION any
Accounts in any particular month, it shall pay to LINK2IT CORPORATION $500.00
for that month, as and for a Supplemental Discount.
ACCEPTED AND AGREED UPON THIS _____ OF AUGUST, 2001 BY:
GENERAL KINETICS INCORPORATED LINK2IT CORPORATION
_____________________________________ __________________________________________