SYSTRAN FINANCIAL SERVICES CORPORATION FACTORING AGREEMENT
This Factoring Agreement dated November 8, 2005 (the "Agreement") is between
SYSTRAN Financial Services Corporation ("SYSTRAN") and its successor or
assigns and ITECHEXPRESS, Inc. and Drug Consultants, Inc. (individually and
collectively the "Customer"), whose addresses are set forth on the last page
hereof.
1. DEFINITIONS
(a) "Bill(s)" means any right to payment for services rendered or goods
sold by Customer to a Debtor evidenced by a writing which complies with the
general requirements of SYSTRAN as those may be set forth in the Customer
Information Manual, as described in Paragraph 2.5.
(b) "Chargeback" the debit of a Bill or a "Special Purchase Bill(s)" to
a Customer's account.
(c) "Commencement Date" means the date that the Customer first receives
funds from SYSTRAN pursuant to the terms of the Agreement.
(d) "Commercial Account" means any non "Transportation Account".
(e) "Debtor" means a person or entity obligated to pay a Bill.
(f) "Maximum Approved Credit Line" means the amount of credit that is
approved for Customer by SYSTRAN inclusive of deposit and advances
against purchases of Bills that Customer's total account is not to
exceed.
(g) "Maximum Debtor Credit Limit" means the maximum outstanding dollar
amount and/or percentage concentration of Customer's unpaid Bills
open with SYSTRAN owing by an individual Debtor and/or its
affiliates at any given time under the term of the Agreement.
(h) "Minimum Anticipated Volume" means the dollar amount of Bills
funded
by SYSTRAN that Customer presents each month during the term of the
Factoring Agreement for purchase by SYSTRAN that meet the Maximum
Approved Credit Line criteria and Maximum Debtor Credit Limit(s)
established from time to time at the sole discretion of Systran in
connection with Customer's account.
(i) "Obligation" means all indebtedness, liabilities and obligations
whatsoever and of whatever nature owed by Customer to SYSTRAN, or
any of its affiliates, whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter arising
and how ever evidenced or acquired, whether joint or several or
joint and several.
(j) "Recourse" means the right to Chargeback a Bill(s) or "Special
Purchase Bill(s)" to Customer.
(k) "Special Purchase Bill(s)" means the purchase by SYSTRAN of
Customer's outstanding and unpaid Bills that have either been
previously billed by Customer, financed by a lender, or sold and
assigned to another company who buys Bills. Special Purchase Bills
shall be subject to all provisions of this Agreement.
(l) "Transportation Account" means any Debtor doing business primarily
with any aspect of the transportation industry such as freight
carriers, brokers, forwarders, consolidators, and rail agents with
the exception of steamship companies.
2. PURCHASE OF BILLS
2.1 Customer agrees to present on a monthly basis, a Minimum
Anticipated Volume of Bills for SYSTRAN to purchase which shall be equal to
$0. SYSTRAN, at its sole discretion, may purchase such Bills. Bill(s) and or
Special Purchase Bill(s) shall herein collectively be referred to as "The
Bill(s)". Customer shall submit to SYSTRAN an original and one (1) copy,
along with any document which SYSTRAN deems necessary, of each Bill which
shall be attached to a schedule form provided by SYSTRAN. Should any Debtor
require any additional documentation as a prerequisite to payment, Customer
will also provide such documentation with each Bill. For a Transportation
Account, Customer shall also submit one (1) copy of the respective bill of
lading. The bill of lading must be signed by the Customer, the shipper, and
the consignee if the consignee's signature is necessary for payment.
2.2 SYSTRAN will settle with the Customer by providing to Customer by
U.S. Mail, electronic mail, or via facsimile a settlement statement setting
forth The Bill(s) and/or Special Bills purchased, the amount paid, and any
deductions made for fees, charges or the "Deposit" and deposit funds as
follows: [Customer shall choose one option] . [ ] Deliver overnight funds due
Customer via Federal Express next day service air. [ ] Wire transfer funds due
Customer into bank account specified by Customer on wire authorization form.
Deposit funds due Customer. [ ] _________ (initials)
2.3 Any payment to Customer may be reduced by SYSTRAN by any amount
due from Customer to SYSTRAN, including but not limited to the security
deposit, Chargebacks, fees and costs.
2.4 SYSTRAN may give notice to the Debtors of the assignment of The
Bill(s) by placing a legend on The Bill(s) stating The Bill(s) have been sold
and assigned to SYSTRAN and are payable to SYSTRAN at an address designated by
SYSTRAN. Customer will not attempt to direct payment to any place other than
to the SYSTRAN designated address. Customer agrees to pay all costs and
expenses incurred by SYSTRAN in giving such notice. All proceeds of The
Bill(s) received by Customer shall be delivered immediately to SYSTRAN in the
identical form of payment received by Customer. In the event that Customer
collects directly from the Debtor, The Bill(s) which have been sold to SYSTRAN
and Customer does not deliver immediately to SYSTRAN the identical form of
payment received by Customer, Customer will be charged an administrative fee
equal to fifteen percent (15%) of the face amount of The Bill(s) collected
directly. Customer agrees that any collection directly from the Debtor by
Customer of The Bill(s) which have been sold to SYSTRAN will be considered a
default under the terms of this Agreement.
2.5 SYSTRAN has or will provide to Customer a Customer Information
Manual, which is a guide to policy and procedures concerning daily submission
of The Bill(s), collection efforts, and other matters. The Customer
Information Manual (the "Manual") is not part of this Agreement. The
procedures set forth in the Manual are only guidelines to ensure the efficient
operation of SYSTRAN's purchase of The Bill(s). SYSTRAN may change any
procedure in the Manual at any time, and may choose not to follow procedures
in the Manual at its discretion.
3. FEE(S)
3.1 SERVICE FEE(S). Customer shall pay a fee of the face amount of
all of The Bill(s) purchased by SYSTRAN as reflected on Exhibit A attached
hereto (the "Service Fee(s)"). The Service Fee(s) shall be payable upon the
purchase of any of The Bill(s) by SYSTRAN, and SYSTRAN may collect Service
Fee(s) either from payments owed to Customer or may bill the Customer
periodically. SYSTRAN may, upon prior notice to Customer, change any fee and
such change shall be effective upon receipt of the notice to Customer;
provided, that SYSTRAN may change the amount of any fee caused by a change in
SYSTRAN's cost of funds without prior notice to Customer, but must notify
Customer of such change on Customer's next settlement statement. A fee change
due to a change in cost of funds will be effective upon the date of the change
which will be reflected on Customer's settlement statement. If, at any time
during the term of this Agreement, there is an event of default by Customer
including, but not limited to, a Federal Tax Lien filed against and attaching
to the property of Customer or any of its principals, and the tax lien is
satisfied to allow continued funding pursuant to this Agreement, SYSTRAN shall
increase all of Customer's Service Fee(s) by no less than one-half of one
percent (0.5%) discount fee on the face of The Bill(s).
3.2 MINIMUM FEE. In the event that Customer fails to sell to SYSTRAN
the Minimum Anticipated Volume in any month, Customer shall pay a minimum fee
to SYSTRAN which shall be equal to the amount obtained when the Minimum
Anticipated Volume is multiplied by the current Service Fees reflected on
Exhibit "A" attached hereto and as referenced in section 3.1 above, or as
amended by SYSTRAN from time to time as reflected in Customer's daily
settlement statement (the "Minimum Fee"). The Minimum Fee owing by Customer
pursuant to this paragraph may be deducted from Customer's funding. In the
event that Customer fails to sell the Minimum Anticipated Volume per month for
each of any two consecutive months (the "Low Volume Period"), Customer's
Service fee will be increased at the beginning of the month immediately
following the Low Volume Period at SYSTRAN's discretion. At SYSTRAN's
discretion, the Service Fee will be returned to the last fee in effect should
Customer's monthly purchase volume exceed the Minimum Anticipated Volume per
month for each of two consecutive months.
3.3 ADDITIONAL SERVICES and VALUE FEES. From time to time during the
term of this Agreement, Customer may request SYSTRAN to provide additional
services and/or incur additional risk. Such additional services and/or
additional risk shall include but not be limited to advances to the Customer
by SYSTRAN which are not in conformity with the terms of the Agreement,
extension of Customer's contractual recourse under the Agreement, purchases by
SYSTRAN of bills which are outside of the formulas and calculations defined in
the Agreement (hereinafter such services shall be collectively referred to as
the "Additional Services"). Customer shall pay SYSTRAN the cost for added
value for such Additional Services (hereinafter referred to as the "Value Fee
(s)"). The Values Fee(s) will be reflected on Customer's daily settlement
statement.
PAGE 1 - FACTORING AGREEMENT
4. DEPOSIT
4.1 In order to secure Customer's Obligations hereunder, Customer
shall deliver to SYSTRAN a deposit equal to ten percent ( 10%) of Customer's
Bills that are ninety (90) days old or less computed from date of purchase
("Deposit").
4.2 ADJUSTMENT OF DEPOSIT. The amount of Customer's Deposit will be
reviewed and, if necessary, adjusted each day. Increases in the amount of
Customer's Deposit will be withheld by SYSTRAN from payments to Customer. If
sufficient Bills are not purchased to fund the increase, Customer will pay the
amount of the increase upon demand. Decreases will be repaid to Customer from
Customer's Deposit amount.
4.3 REPAYMENT OF DEPOSIT. Upon termination of the Agreement, (a)
SYSTRAN may increase the Deposit percentage to 100%, in its sole discretion,
and (b) all other sums that may become due to Customer by SYSTRAN will be
included in the Deposit. Any shortfall in the Deposit shall bear interest at
the rate of four percent (4%) per month.
5. SECURITY INTEREST
5.1 The purchase of The Bill(s) of Customer by SYSTRAN is absolute,
subject to the right to Chargeback. In no event shall the purchase of Bills
hereunder be construed as a loan. In addition to the outright ownership of
The Bill(s) purchased by SYSTRAN, to secure the payment and performance of
Customer's Obligations to SYSTRAN, Customer grants SYSTRAN a security interest
in, and lien on, all present and future accounts, deposit accounts, chattel
paper, contract rights (including insurance contracts and insurance proceeds),
general intangibles, choses in action, instruments, and documents, whether now
owned or acquired hereafter and the proceeds of the foregoing (the
"Collateral").
5.2 FINANCING STATEMENTS. Customer shall not execute or file any
financing statement, supplements or amendments thereto, or any other
instruments or security agreement covering the Collateral described above in
favor of anyone other than SYSTRAN. Customer shall execute and deliver to
SYSTRAN any financing statements, title documents, supplements hereunder or
the priority of such security interest. CUSTOMER AUTHORIZES SYSTRAN TO SIGN
ITS NAME TO ANY SUCH FINANCING STATEMENT AND FILE SAME IN CUSTOMER'S NAME
COVERING THE COLLATERAL. Customer shall pay all costs of filing such
statements or instruments with appropriate governmental authorities together
with the costs of all lien searches. Customer agrees that either a carbon,
photocopy, or other reproduction of this Agreement is sufficient as a
financing statement under this Agreement.
5.3 SYSTRAN may, in its sole discretion, elect to discharge any
security interest, lien or other encumbrance upon any of The Bill(s) for
services rendered or goods sold purchased by SYSTRAN. Any such payments and
all expenses incurred in connection therewith shall be treated as a
Chargeback. Notwithstanding the foregoing, SYSTRAN shall have no obligation
to discharge any such security interest, lien or encumbrance.
6. RECOURSE, DISPUTES AND CHARGEBACKS
6.1 All of The Bill(s) are purchased by SYSTRAN from Customer with
Recourse. All of The Bill(s) may be Chargedback to Customer at any time after
ninety (90) days for a Commercial Account and steamship companies, and sixty
(60) days for Transportation Account(s) after the purchase date of The Bill(s)
if not collected from Debtor within such period or at any time, if SYSTRAN
determines, in its sole discretion, that The Bill(s) is not collectible. All
of The Bill(s) owing by Canadian Debtors or logistics companies are subject to
Chargeback sixty (60) days from the date of purchase by SYSTRAN. All Special
Purchase Bills are subject to Chargeback sixty (60) days from the date of
purchase by SYSTRAN. SYSTRAN shall not deem a disputed Bill or Special
Purchase Bill uncollectable without allowing Customer a reasonable time to
settle the dispute not to exceed fourteen (14) days from notice of dispute.
It is within SYSTRAN's discretion as to when The Bill(s) over such time
periods may be Chargedback to Customer.
6.2 SYSTRAN reserves the right, however, from time to time and at its
absolute discretion, to Chargeback to Customer any of The Bill(s) which do not
conform to the representations and warranties set forth in the Agreement or
are discovered not to conform with the reasonable standards which SYSTRAN may
set for The Bill(s). SYSTRAN shall have a continuing security interest in any
and all of The Bill(s) which are Chargedback to the Customer. Chargeback of
any of The Bill(s) does not authorize Customer to collect any outstanding sum
owing on The Bill(s) from a Debtor.
6.3 COLLECTION OF BILLS. SYSTRAN may, but is not required to,
commence any action, including legal action, to collect The Bill(s). All
costs of collection, including attorney fees, court fees, and costs of
investigation, will be charged to the Customer. Prior to any event of default
by a Debtor, SYSTRAN will commence litigation only with Customer's
authorization. Subsequent to an event of default, SYSTRAN may file suit as it
deems necessary without Customer's authorization. In the event of default,
Customer hereby grants authorization to SYSTRAN to settle or compromise any
freight bill dispute, including litigation, with any uncollected amount being
subject to Chargeback, together with all other amounts for which Customer is
obligated to SYSTRAN.
6.4 CLEARANCE DAYS. Clearance Days shall mean (i) -- (--) business
days for checks drawn on banks located within the United States and for all
electronic funds transfers, and (ii) -- (--) business days for all other
payments. For all purposes and computations under this Agreement, Clearance
Days will be added to the date on which any payment is received by SYSTRAN.
7. WARRANTIES AND REPRESENTATIONS
7.1 Customer warrants and represents with respect to all of The
Bill(s) sold to SYSTRAN that (a) The Bill(s) are genuine and in all respects
what they purport to be; (b) Customer has good title to The Bill(s) and The
Bill(s) are free and clear of all encumbrances, liens and prior claims, and
that the Customer has the legal right to sell The Bill(s); (c) Customer has no
knowledge of any fact which may impair the validity of The Bill(s) or make
them uncollectible in accordance with its terms and face amount; (d) for
transportation Customers, The Bill(s) were made in accordance with the laws
and the regulations of the Federal Highway Administration or other federal
regulatory agency, and the appropriate state regulatory commission or made
according to lawful and valid contracts which Customer has executed; (e) for
transportation Customers, The Bill(s) are supported by lawful, effective and
complete bills of lading or other contract of carriage together with bona
fide, genuine, valid and signed delivery receipts, and Customer will not
modify or delete any of the terms of the original Bills or Special Purchase
Bills or bill of lading with respect to same; (f) there are no counterclaims
or setoffs or defenses existing in favor of the Debtor, whether arising from
the services provided or goods sold which are the subject of The Bill(s) or
otherwise and there has been no agreement as to the issuance or granting of
any discount on The Bill(s); (g) The Bill(s) are not a duplicate of and do not
cover the same services provided or goods sold as a Bill or Special Purchase
Bill previously purchased by SYSTRAN from the Customer or billed directly by
the Customer to the Debtor; (h) Customer does not own, control, or exercise
dominion over the business of any Debtor whose Bills or Special Purchase Bills
are factored by Customer to SYSTRAN, Customer is not a subsidiary of any
Debtor and no Debtors control or exercise dominion over the business of
Customer; (i) Customer will not under any circumstances or in any manner
whatsoever interfere with any of SYSTRAN's rights under this Agreement in
connection with SYSTRAN's factoring of The Bill(s); (j) Customer has not and
will not pledge the credit of SYSTRAN to any person or business for any
purpose whatsoever; (k) for non-transportation Customers, until the sale by
Customer to Debtor of the goods described in The Bill(s), Customer had good
title to the goods sold, the goods were free of all encumbrances, liens and
prior claims, and Customer had the legal right to sell the goods.
7.2 If the Customer is a corporation, partnership or limited
liability company, it is duly organized, existing, and in good standing under
the laws of California. If Customer represents him or herself to be a sole
proprietorship or a partnership, such representation shall be deemed
conclusive and binding upon Customer. Customer is duly qualified to do
business and is in good standing in every other state in which such
qualification is required. If Customer is a corporation, partnership or
limited liability company, execution, delivery and performance hereof are
within its corporate or entity powers, have been duly authorized, and are not
in contradiction of law or the terms of its charter, by-laws, partnership
agreement, operating agreement or other entity papers, or any indenture,
agreement or undertaking to which it is a party or by which it is bound. In
addition, the Customer has all licenses and certificates necessary for the
operation of its business and the issuance of The Bill(s).
PAGE 2 - FACTORING AGREEMENT
8. AUTHORITY
Customer irrevocably authorizes SYSTRAN or any person designated by
SYSTRAN to: bill, receive and collect all amounts which may be due or become
due to Customer from Debtors and to use Customer's name for purposes of
billing and collection of amounts due; delete Customer's address on all
invoices mailed to Debtor and substitute SYSTRAN's address; receive, open and
dispose of all mail addressed to Customer or Customer's trade name at
SYSTRAN's address; negotiate checks received in payment whether payable to
Customer or to SYSTRAN, endorse the name of Customer or Customer's trade name
on any checks or other evidences of payment that may come into the possession
of SYSTRAN on The Bill(s) purchased by SYSTRAN and on any invoices or other
document relating to any of The Bill(s); in Customer's name, or otherwise,
demand, sue for, collect and get or give releases for any and all monies due
or to become due on The Bill(s); compromise, prosecute, or defend any action,
claim or proceeding as to The Bill(s) purchased by SYSTRAN; take all steps
necessary to ensure payment of such amounts due and do any and all things in
Customer's name necessary and proper to carry out the purpose intended by this
Agreement.
9. ADDITIONAL DOCUMENTS
The Customer shall execute and deliver all such additional and further
instruments as may be reasonably requested by SYSTRAN in order to more
completely vest in and assure to SYSTRAN and make available to it, the
property and rights herewith or hereafter granted or assigned and transferred
to SYSTRAN as Collateral and to evidence the sale of The Bill(s) to SYSTRAN
and to carry into effect the provisions and intent of this Agreement.
10. LOCATION OF BOOKS AND RECORDS, PLACE OF BUSINESS
Customer's place of business is the one set forth in this Agreement and
all of its books, accounts, correspondence, papers and records pertaining to
the services performed or sales of products are located there, and all such
books, accounts, correspondence, papers and records will be opened for
SYSTRAN's inspection at all reasonable times.
11. INDEMNIFICATION OF SYSTRAN; SALES AND EXCISE TAXES
Customer will indemnify and hold SYSTRAN harmless against any and all
liability, loss or expense, including attorney's fees and costs, caused by or
arising out of any claims or alleged claims asserted relating in any manner to
The Bill(s) purchased by SYSTRAN hereunder or subject to SYSTRAN's security
interest, including, but not limited to, claims asserted against SYSTRAN
pursuant to Chapter 5, Title 11 of the United States Code. In the event any
sales or excise taxes are imposed by any state, federal or local authorities
with respect to any of The Bill(s) sold and assigned hereunder, where such
taxes are required to be withheld or paid by SYSTRAN, Customer shall also
indemnify SYSTRAN and hold it harmless with respect to all such taxes and
hereby authorizes SYSTRAN to charge to Customer's account any such tax that is
paid or withheld by SYSTRAN. SYSTRAN may charge the Deposit or initiate legal
proceedings to collect any amount due under this paragraph. This paragraph
shall survive and remain effective following the termination of the Factoring
Agreement.
12. FINANCIAL INFORMATION
So long as Customer factors or has any absolute or contingent
obligation of any kind owing to SYSTRAN, the Customer will provide information
regarding the business, affairs and financial condition of Customer and its
subsidiaries as SYSTRAN may reasonably request, including financial
statements.
13. BANKRUPTCY
Customer agrees to notify SYSTRAN of any voluntary or involuntary
bankruptcy petition filed by or against it or any guarantor within twenty-four
(24) hours of such filing.
14. REORGANIZATION, ACQUISITIONS, CHANGE OF NAME OR LOCATION
Customer will not, and will not permit any subsidiary to merge or
consolidate with or into any corporation or other entity, or sell, lease,
transfer, or otherwise dispose of all or any substantial part of its assets,
whether now owned or hereafter acquired. Customer shall notify SYSTRAN in
writing not less than thirty (30) days prior to (a) any change of its name or
use of any trade names; or (b) any change in the address of the chief
executive office and/or chief place of business of Customer or the location of
any records pertaining to The Bill(s).
15. LITIGATION
Except as disclosed in writing, Customer represents and warrants to
SYSTRAN as follows: There are no suits or proceedings pending or to the
knowledge of Customer, threatened against or affecting Customer or any of its
subsidiaries which, if adversely determined, would have a material adverse
effect on the financial condition or business of Customer and its subsidiaries
and there are no proceedings by or before any governmental commission, board,
bureau, or other administrative agency pending or, to the knowledge of
Customer, threatened, against Customer or any of its subsidiaries. Further,
Customer represents and warrants there is no claim, loss contingency, or
proceeding, whether or not pending, threatened or imminent, against or
otherwise affecting Customer that involves the possibility of any judgment or
liability not fully covered by insurance or that may result in a material
adverse change in the business, properties, or condition, financial or
otherwise, of Customer.
16. TRADE NAMES
Customer represents and warrants to SYSTRAN that it utilizes no trade
names or assumed business names in the conduct of its business except
ITECHEXPRESS, Inc. and Drug Consultants, Inc..
17. TAXES
Customer represents and warrants to SYSTRAN that: Customer has filed
all federal, state, and local tax returns and other reports it is required to
file and has paid or made adequate provision for payment of all such taxes,
assessments, and other governmental charges.
18. TERM AND TERMINATION
18.1 This Agreement is for a term of thirty-six (36) full months to
begin on the Commencement Date as defined in paragraph 1(c) herein. The term
of this Agreement shall renew automatically for consecutive twelve (12)month
terms unless sooner terminated in accordance with the terms of the Agreement.
Customer may terminate this Agreement effective at the end of any term by
giving thirty (30) days prior written notice to SYSTRAN at the address set
forth in this Agreement. Customer may continue to offer any of The Bill(s) to
SYSTRAN during such thirty (30) day period. SYSTRAN may terminate this
Agreement at any time and for any reason by notifying Customer in writing of
such termination.
18.2 All of Customer's representations, warranties, and other
provisions of this Agreement shall survive such termination until SYSTRAN has
been paid in full and Customer has fully performed all of its obligations. In
addition, should any transfer of money or property to SYSTRAN hereunder be
avoided in a bankruptcy proceeding involving Customer, any Debtor of Customer,
or otherwise, then Customer's Obligations hereunder shall be reinstated and/or
supplemented to the extent of the avoided transfer, whether or not this
Agreement has otherwise been terminated.
PAGE 3 - FACTORING AGREEMENT
18.3 Notwithstanding the foregoing, Customer has the option to
terminate this Agreement prior to the end of any term by giving SYSTRAN thirty
(30) days prior written notice. Customer may continue to offer any of The
Bill(s) to SYSTRAN during such thirty (30) day period. Customer shall be
deemed to have terminated this Agreement prior to the end of any term on the
date that Customer shall have ceased presenting The Bill(s) to SYSTRAN in the
normal course for an uninterrupted period of thirty (30) days ("Deemed
Termination"). Upon notice of early termination, or the date of a Deemed
Termination by Customer, prior to the end of any term, whether or not Customer
continues to offer The Bill(s) to SYSTRAN during the thirty (30) day notice
period applicable to Customer, Customer shall be obligated to pay to SYSTRAN,
and Customer's Deposit may be charged, an early termination premium ("Early
Termination Premium") in an amount equal to the following: (a) 3% of the
Maximum Approved Credit Line if such termination occurs after the date of this
Agreement and prior to the first anniversary of this Agreement; (b) 2% of the
Maximum Approved Credit Line if such termination occurs on or after the first
anniversary but prior to the second anniversary; (c) 1% of the Maximum
Approved Credit Line if such termination occurs on or after the second
anniversary but prior to the end of the initial term or any renewal term of
the Agreement. Customer and SYSTRAN agree that the Early Termination Premium
shall be presumed to be the amount of damages sustained by SYSTRAN as a result
of early termination and Customer agrees that it is reasonable under the
circumstances currently existing.
18.4 Any partial month remaining in the current term shall constitute
a full month for the purpose of calculating the Early Termination Premium. In
addition, if SYSTRAN buys Bills from Customer as part of a Special Purchase
Bill, and should Customer terminate this Agreement within the first four (4)
months of the term of this Agreement, Customer's Deposit shall be charged an
Early Termination Premium in the amount of the balance of the Deposit on the
termination date. The termination date shall be thirty (30) days after
SYSTRAN's receipt of the termination notice or on the Deemed Termination date,
unless a termination notice specifies a date that is more than thirty (30)
days but less than sixty (60) days after SYSTRAN's receipt of the termination
notice.
18.5 If SYSTRAN terminates this Agreement prior to the end of any
term upon any default in the performance of Customer under this Agreement, in
view of the impracticality and extreme difficulty in ascertaining actual
damages and by mutual agreement of the parties as to the reasonable
calculation of SYSTRAN's lost profits as a result thereof, Customer shall be
obligated to pay SYSTRAN upon the effective date of such termination, and
Customer's Deposit may be charged, a premium in an amount equal to the Early
Termination Premium as set forth above. If Customer terminates this Agreement
pursuant to the terms thereof, Customer shall immediately remit and pay to
SYSTRAN, at the time of termination, all Obligations due and owing to SYSTRAN
and/or its affiliates by Customer, under this and any other Agreement.
19. EVENTS OF DEFAULT
19.1 The following shall be events of default under the terms of this
Agreement: (a) default by Customer in the performance of any Obligation to
SYSTRAN or any other financial institution or bank; (b) Customer agrees to the
appointment of a receiver for its assets, makes general assignment for the
benefit of creditors or declares that it is unable to pay its debts as they
mature; (c) Customer files a proceeding under any law for the relief of
Debtors, including but not limited to, Title 11 of the United States Code,
referred to as "The Bankruptcy Code" or any other similar law which may exist;
(d) any involuntary petition under the Bankruptcy Code or similar statute has
been filed against the Customer and not dismissed within sixty (60) days after
filing without the entry of an order for relief; (e) the issuance of an
attachment, execution, tax assessment or similar process against the Customer
or its property which is not released within ten (10) days of its attachment;
(f) any change in the conditions, financial or otherwise, of the Customer
which reasonably causes SYSTRAN to deem itself insecure.
19.2 In addition to all other remedies provided by law, upon the
occurrence of an event of default, SYSTRAN may immediately, and without notice
to the Customer, increase the amount of the Deposit required under Section 4
of this Agreement to one hundred percent (100%) of the outstanding amount of
Bills purchased from the Customer ("100% Deposit"), and the Customer shall
immediately deliver to SYSTRAN funds sufficient to create this 100% Deposit.
19.3 SYSTRAN may, upon default under the Agreement or any of the
agreements, collect any Obligation owing to SYSTRAN or any of its affiliates
by debiting Customer's account, attach any funds owing to Customer by SYSTRAN
or its affiliates, and exercise any other remedy available to SYSTRAN under
the Agreements or at law. Any deficiency arising under this Agreement shall
accrue interest at the annual rate of twelve percent (12%) or the highest
amount allowed by law, whichever is higher, from the date the deficiency is
incurred.
20. EXPENSES
20.1 Customer shall reimburse SYSTRAN for all fees, costs and
expenses incurred by SYSTRAN in relation to this Agreement. SYSTRAN may, at
any time, and without regard to any remedy listed above, demand from Customer
payment of the outstanding fees, costs and expenses.
20.2 ATTORNEYS' FEES. With respect to any default under this
Agreement, Customer shall reimburse SYSTRAN for all costs and expenses
incurred by attorneys, including both SYSTRAN's in-house attorneys and outside
attorneys' and paralegals' whether or not a lawsuit or other court action is
actually filed in connection with the event of default. In the event that a
suit, action, arbitration, or other proceeding of any nature, including,
without limitation, any proceeding under The Bankruptcy Code, any action
seeking a declaration of rights or an action for rescission is instituted to
interpret or enforce this Agreement, including, but not limited to such fees
and costs associated with trial and appeals, Customer agrees to pay the
reasonable attorneys' fees incurred in connection with any such proceeding as
awarded by the court.
20.3 OTHER PROFESSIONALS AND EXPERTS. With respect to any event of
default under this Agreement, SYSTRAN in its sole discretion may retain
accountants, auditors, appraisers and other experts and the Customer agrees to
pay the professional fees, expert fees and all other fees and costs reasonably
and actually incurred in connection with the services provided.
20.4 No Lien Termination without Release. In recognition of
SYSTRAN's right to have its attorneys' fees and other expenses incurred in
connection with this Agreement secured by the Collateral, notwithstanding
payment in full of all Obligations by Customer, SYSTRAN shall not be required
to record any terminations or satisfactions of any of SYSTRAN's liens on the
Collateral unless and until Customer has executed and delivered to SYSTRAN a
general release in a form reasonably satisfactory to SYSTRAN. Customer
understands that this provision constitutes a waiver of its rights under 9-513
of the UCC.
20.5 JURY TRIAL WAIVER. IN RECOGNITION OF THE HIGHER COSTS AND DELAY
WHICH MAY RESULT FROM A JURY TRIAL, THE PARTIES WAIVE ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING HEREUNDER, OR
(B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE
PARTIES HERETO OR ANY OF THEM WITH RESPECT HERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY FURTHER WAIVES ANY RIGHT TO CONSOLIDATE ANY SUCH
ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A
JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY HERETO MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.
PAGE 4 - FACTORING AGREEMENT
21. JURISDICTION AND VENUE
This Agreement shall be deemed to be a contract under the laws of the
State of Oregon and for all purposes shall be governed by and construed in
accordance with the laws of that state. Customer irrevocably agrees that any
legal action or proceeding brought by or against Customer with respect to the
Agreement shall be brought in the courts of the State of Oregon or in the U.S.
District Court for the District of Oregon. Customer consents to the
jurisdiction of such courts and that the venue for any such action shall be
the County of Clackamas. This provision shall not limit the right of SYSTRAN
to bring such actions or proceedings against Customer in the court of such
other states or jurisdictions where Customer may be subject to jurisdiction.
Customer expressly authorizes service of process in any such suit or action on
its behalf upon Registered Agent: , at (address)
or upon such other agent as SYSTRAN may approve in writing,
as its agent for such purposes and that service may be deemed complete upon
delivery via expedited national overnight delivery service.
22. WAIVER, NOTICE
The waiver by SYSTRAN of the breach of any term of this Agreement or of
the compliance therewith shall not be construed as a waiver of any other
breach or compliance. Notices from either party to the other shall be given
in writing and mailed postage prepaid, registered or certified mail, or placed
in the hands of a national overnight delivery service, addressed to the
addresses set forth opposite each party's name below, or at such other address
as either party may hereafter advise the other in writing.
23. ASSIGNMENT
Customer may not assign any of its rights or obligations hereunder.
SYSTRAN may assign or grant a security interest in this Agreement or in any of
The Bill(s) purchased by SYSTRAN. SYSTRAN may assign any of its rights and
remedies with respect to The Bill(s) including the right to notify Debtors to
make payment to SYSTRAN's assignee.
24. SEVERABILITY
The provisions of this Agreement are severable and if any of these
provisions shall be held by any court of competent jurisdiction to be
unenforceable such holding shall not affect or impair any other provisions
hereof.
25. COMPLETE UNDERSTANDING
This Agreement comprises the complete understanding among the parties
and may only be varied by a writing executed by the parties hereto. Paragraph
headings are for convenience only.
26. THIRD PARTY CONSULTATION
Customer hereby agrees and acknowledges that it has had the opportunity
to seek out and consult with legal counsel and/or independent business
advisors of its own choosing in connection with the negotiation, execution and
delivery of this Agreement. This Agreement shall be construed without regard
to any presumption or rule requiring that it be construed against the party
causing this Agreement, or any part hereof to be drafted.
27. NO OFFER/COMMITMENT
The presentation of this Agreement to Customer does not constitute
either an offer or commitment to purchase The Bill(s) or to extend credit to
Customer.
28. JOINT AND SEVERAL LIABILITY
If more than one Customer executes this Agreement, their Obligations
under this Agreement are joint and several.
29. CREDIT INFORMATION
Customer authorizes SYSTRAN or any of its affiliates to obtain credit
bureau reports, and make other credit inquiries that it determines are
necessary. On Customer's written request, SYSTRAN will inform Customer
whether SYSTRAN has requested a consumer credit report and the name and
address of any consumer credit reporting agency that published a report.
Customer acknowledges that without further notice SYSTRAN may use or request
additional credit bureau reports to update its information so long as Customer
obligations to SYSTRAN are outstanding.
SYSTRAN FINANCIAL SERVICES CORPORATION
By: /s/ Jennifer Grable
Title: AVP Operatios
Date: November 8, 2005
Address: 4949 SW Meadows Drive
Suite 500
Lake Oswego, Oregon 97035
ITECHEXPRESS, INC. WITNESS:
By: /s/ Keith Moore By: /s/ Ming Thai
Print Name: Keith Moore Print Name: Ming Thai
Title: Secretary Address:
Date: November 8, 2005 Phone:
Address: 18301 Von Karman
Suite 250
Irvine, CA 92612
PAGE 5 - FACTORING AGREEMENT
Drug Consultants, Inc. WITNESS:
By: /s/ David Walters By: /s/ Erin Birkinshaw
Print Name: David Walters Print Name: Erin Birkinshaw
Title: CEO Address:
Date: November 8, 2005 Phone:
Address: 18301 Von Karman
Suite 250
Irvine, CA 92612
PAGE 6 - FACTORING AGREEMENT
Exhibit "A" to Factoring Agreement Dated November 8, 2005
The terms used in this Exhibit A have the same definitions as those used in
the Factoring Agreement. In case of conflict of definition, the definitions
in this Exhibit "A" shall prevail.
All fees referred to below shall collectively be referred to as "Service
Fees."
Customer shall pay a discount fee of one and one half percent (1.5%) of the
face amount of all Bills purchased ("Discount Fee").
A managed account shall also be created for all Bills that Systran does not
purchase and all Bills which Customer does not factor (the "Managed Account").
The deposit on the Managed Account is 100%.
PAGE 7 - FACTORING AGREEMENT
Addendum to Factoring Agreement Dated November 8, 2005
This Addendum is to the Factoring Agreement (the "Agreement") between Systran
Financial Services Corporation ("SYSTRAN") and ITECEXPRESS, Inc. and Drug
Consultants, Inc. (the "Customer").
Section 2, entitled, "Purchase of Bills", paragraph 2.4 of the Agreement to
include the following:
Customer may mail all Bills directly to account debtors. All Bills so
directly mailed by Customer must be stamped with SYSTRAN's notice of
assignment attached as Exhibit "A". Customer will provide copies of all
Bills, together with signed copies of the respective proof of
delivery prior to SYSTRAN considering them for purchase. Nothing in the
Addendum shall obligate SYSTRAN to purchase any Bill owing by the
account debtors, listed above. Customer must obtain SYSTRAN's consent
prior to adding any account debtors to the list of direct mailed
parties.
Remit Only To:
Systran Financial Services Corp.
PO Box 31001-0041
Pasadena, CA 91110-0041
This account is sold, assigned, and payable only to SYSTRAN.
The remainder of Section 2 shall remain as originally written.
Section 3, entitled, "FEE(S)", shall include a new paragraph 3.4 of the
Agreement as follows:
3.4 SYSTRAN may in its sole discretion extend the Chargeback period
that applies to any Bill provided that the Deposit for such Bill shall
increase and Customer shall pay a fee to SYSTRAN as follows:
- ---------------------------------------------------------------------------------------------
Account Debtor Type
- ---------------------------------------------------------------------------------------------
Transportation/Broker Commercial
- ---------------------------------------------- -------------------------------------------
Fee Deposit Chargeback Period/Recourse Fee Deposit Extension Period/Eligibility
- ---- -------------- --------------------------- ---- -------- ----------------------------
<s> <c> <c> <c> <c> <c>
4% As set forth in From 60 days to 90 days NA NA NA - Already has eligibility
Section 4 of up to 90 days
the Agreement
- ---------------------------------------------- -------------------------------------------
2% 50% From 90 days to 120 days 2% 50% From 90 days to 120 days
- ---------------------------------------------- -------------------------------------------
2% 75% From 120 days to 150 days 2% 75% From 120 days to 150 days
- ---------------------------------------------- -------------------------------------------
2% 87.5% From 150 days to 180 days 2% 87.5% From 150 days to 180 days
- ---------------------------------------------- -------------------------------------------
The fee provided above shall be fully earned and immediately due and payable
upon SYSTRAN's agreement to extend the Chargeback period for such Bill.
The remainder of Section 3 shall remain as originally written.
Paragraph 18.1 of the Factoring Agreement is amended by adding the following
language:
Customer may request that Systran perform the necessary due diligence in order
to consider the Customer as a candidate for conversion to an Asset Based Loan
("ABL"). In the event Customer selects this option and the conversion to ABL
is approved, additional credit underwriting and new loan documentation may be
required by Systran pursuant to its lending criteria and the Early Termination
Premium will be waived.
The remainder of Section 18 shall remain as originally written
_______ _________
Initial Initial
PAGE 8 - FACTORING AGREEMENT