Third Party Funding Terms and Conditions
June 21, 2019
C2FO – Supplier Terms And Conditions
By registering as a user of the Site or the Service, you (“you” refers to you both (i) as an individual and (ii) as an authorized representative of the company you represent) represent and warrant that you are accessing the Service on behalf of the company whose information you provided during the registration process (the “Supplier”).
You hereby represent and warrant that you have the authority to legally bind the Supplier, and that you are duly authorized to enter into this Agreement (as defined below) including any Receivables Purchase Agreement (defined in Section 1.20) on behalf of the Supplier. The Service is provided to you at the website www.C2FO.com (the “Site”). The Site, the Service and any other services provided by Pollen, Inc. (“C2FO”) related to the Site or the Service are intended for use only by the Supplier and its Authorized Users.
The Agreement may be amended from time to time in C2FO’s sole discretion. Each time an Authorized User of the Supplier clicks “I AGREE” or accesses the Site or the Service using an Authorized User’s User Name and Password, the Supplier agrees to be bound by the terms and provisions of the then-current Agreement.
1. DEFINITIONS. The following are the definitions that apply in this Agreement.
1.1 “Accelerated Payment” means the payment to Supplier of a reduced sum either (i) by the Buyer in exchange for a discount on the invoice amount, or (ii) by a Funder as a purchase price in consideration for the sale of the relevant Funded Invoice, in each case on a date which is earlier than such Funded Invoice’s due date.
1.2 “Affiliate” means with respect to a person, any corporation or other entity that controls, is controlled by, or is under common control with, that person.
1.3 “Approved Invoice” means an invoice issued by Supplier, validated and approved by the relevant Buyer and confirmed to C2FO by the Buyer (or an Affiliate, as applicable), for the purposes of the Services, as eligible for Accelerated Payment.
1.4 “Authorized Supplier” means a third party supplier to Buyer who: (i) is authorized by Buyer to use the Service and access the Buyer marketplace; and (ii) has agreed to all terms and conditions in accordance with allowable usage.
1.5 “Authorized User” means a user who is authorized by Supplier to access and use the Service on behalf of the Supplier.
1.6 “Award File” means electronic file(s) compiled of (i) awarded offers of a discount on the amount owing to the applicable Supplier pursuant to an Approved Invoice in consideration for accelerated payment of Approved Invoices by the relevant Funder or Buyer (as applicable), resulting in discounts to face value, and (ii) source(s) of non-Buyer funding for Funded Invoices, as applicable.
1.7 “Buyer” means a party that has contracted with C2FO for purposes of processing Approved Invoices from the Supplier through the C2FO working capital marketplace to provide accelerated payment of an Approved Invoice in exchange for a discount on the invoiced amount.
1.8 “C2FO Market Closing” means the time identified on the Site at which the working capital market closes and the early payment award status is confirmed during each local business day.
1.9 “Confidential Information” means:
(i) With regard to C2FO, all C2FO Information, software, inventions, know-how, ideas, programs, apparatus programs, and Intellectual Property Rights related to, connected with or arising out of the Service;
(ii) With regard to Supplier, any non-public information regarding the business or business partners of Supplier, in whole and in part; and
(iii) With regard to either Party, the terms, conditions, pricing and other contents of this Agreement, any other information, technical data, or know-how, including, but not limited to, that which relates to research, product plans, products, services, customers, markets, software, software code, software documentation, developments, inventions, lists, trade secrets, data compilations, processes, designs, drawings, engineering, hardware configuration information, marketing or finances.
Notwithstanding the foregoing, Confidential Information does not include Market Statistics, and information, data or know-how which:
(i) Is in the public domain at the time of the disclosure or becomes available to the public thereafter without restriction, and not as a result of the act or omission of the receiving Party;
(ii) Is rightfully obtained by the receiving Party from a third party without restriction as to disclosure;
(iii) Is lawfully in the possession of the receiving Party at the time of the disclosure;
(iv) Is approved for release by written authorization of the disclosing Party; or
(v) Is developed independently and separately by the receiving Party without use of the disclosing Party’s Confidential Information.
1.10 “Content” means any data, information or materials provided to C2FO by or relating to Supplier, in any media known now or in the future, for use with the Service.
1.11 “Data Protection Laws” means all laws (including the Data Protection Act 1998) that relate to the processing or the security of Personal Data and which are applicable to the processing of Personal Data by C2FO.
1.12 “Funded Invoice” means each Approved Invoice for which an Accelerated Payment is made to a Supplier.
1.13 “Funder” means a financial institution or other entity (other than the relevant Buyer) which communicates its acceptance of a request for an Accelerated Payment and enters into a Receivables Purchase Agreement in its capacity as a purchaser of the Funded Invoice, in each case enabled by the Services.
1.14 “Force Majeure” means events or conditions beyond a Party’s reasonable control, including, without limitation, acts of common enemy, earthquakes, floods, fires, epidemics, terrorist attacks, embargoes, strike, fire, governmental acts or orders or restrictions, acts of God, lack of internet availability, inability to secure products or services from third parties, or any other reason where failure to perform is not caused by the negligence of the nonperforming Party.
1.15 “Information” means any technical, or business information in written, graphical, oral, or other tangible or intangible forms, including but not limited to specifications, drawings, tools, samples, reports, compilations, records, data, computer programs, drawings, models, and secrets.
1.16 “Intellectual Property Rights” means any patent rights, copyrights, trade secrets, trade names, service marks, trademarks, moral rights, know-how and any other similar rights or intangible assets recognized under any laws or international conventions, and in any country or jurisdiction in the world, as intellectual creations to which rights of ownership accrue, and all registrations, applications, disclosures, renewals, extensions, continuations or reissues of the foregoing now or hereafter in force.
1.17 “Market Statistics” means any summarized, derivative, aggregated, de-identified, or non-attributable information associated with Transaction Information that may be combined with other information to optimize, construct, provide or improve C2FO’s performance, modeling, products or services.
1.19 “Party” or “Parties” means, individually or collectively, as the case may be, C2FO and Supplier and any and all permitted successors and assigns.
1.20 “Receivables Purchase Agreement” has the meaning given to that term in sub-paragraph (d) of section 3.2 (Effect of using the Service), as each such agreement may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms (including, without limitation, by way of jurisdiction-specific supplemental terms).
1.21 “RP Terms” means the terms set out in Appendix 1 (Receivables Purchase Terms) hereto.
1.22 “Software” means (i) any proprietary C2FO computer software program or application, or those of its third party licensors, utilized by C2FO in the establishment, operation, and/or the provision of the Service including any proprietary schema, data processing or storing applications, tools, methodologies, databases and (ii) all source code, documentation, updates, upgrades, and derivative works thereof.
1.23 “Service” branded as “C2FO” means C2FO’s proprietary electronic invoice prepayment discount market-based application services platform, related tools, and other services accessed and used by Buyer, Supplier, Funder and their respective Authorized Users (pursuant in each case to this Agreement) to offer, accept, make and document (in the form of Award Files) payments in respect of Approved Invoices, including any successor or replacement or future services offering the same or more functionality than its predecessor.
1.24 “Supplier Services” means any consultancy services such as implementation, training or support to be provided by C2FO as set out in the signup process or as agreed between the Supplier and C2FO in writing from time to time.
1.25 “Transaction Information” means all data, Content, and information generated or posted through the Service that is disclosed directly or indirectly to C2FO by any party, but shall not include any information which was at the time of disclosure within an enumerated exception to the definition of Confidential Information.
2. SERVICE ACCESS
2.1 Use. C2FO hereby grants the Supplier a non-exclusive, non-transferable, limited right to permit Authorized Users to access and use the Service, subject to the following restrictions: (i) the Supplier may use the Service solely for the Supplier’s own internal business purposes; and (ii) the Supplier shall not (A) make any copies of all or any portion of the Service; (B) sell, sublicense, distribute, rent, lease or assign the Service to any other person or entity; (C) modify, reverse engineer, decompile, disassemble, translate, alter or create derivative works based on the Service; (D) except for Authorized Users, permit any third party to use the Service; or (E) create Internet “links” to or from the Service, or “frame” or “mirror” any content forming part of the Service, other than on the Supplier’s or its Authorized Users’ own intranets or otherwise for its own internal business purposes, (F) send spam or other duplicative or unsolicited messages in violation of applicable laws, (G) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights, (H) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs, (I) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (J) attempt to gain unauthorized access to the Service or its related systems or networks.
2.2 Access to the Service. C2FO shall provide access to the login screen to Supplier on the instruction of, and on behalf of, the Buyer and Supplier shall be permitted to create a unique login credential (“User Name” and “Password”) to be used by Authorized Users to access the Services. The Supplier is responsible for maintaining the confidentiality of any User Names and Passwords. The Supplier will be solely responsible and liable for all activities that occur under any User Name and Password created by to the Supplier, including any requests made or actions taken, whether under Section 3.2, under or in connection with any Receivables Purchase Agreement (including, without limitation, any Transaction Document (as defined in that Receivables Purchase Agreement)) or otherwise, to obtain Accelerated Payment, payment of a Purchase Price (as defined in the relevant Receivables Purchase Agreement) or otherwise for the purposes of a Receivables Purchase Agreement. The Supplier shall immediately notify C2FO of any unauthorized use of any User Name or Password and C2FO shall take such action as it deems appropriate to address the unauthorized use. The Supplier agrees on its own behalf, and to require its Authorized Users on their behalf, to access the Service in a secure manner in compliance with C2FO’s reasonable standards established from time to time which currently require, to the extent applicable, use of web browsers utilizing 128 bit SSL encryption.
3. SCOPE, AVAILABILITY AND MODIFICATIONS
3.1 Scope of Service. The Service is intended to enable transactions between the Supplier, the Buyer(s) and/or any Funder (as applicable) as principals and C2FO does not act for or represent in any way either the Supplier, any Buyers or Funder (as applicable). C2FO is not a party to, third party beneficiary of (other than pursuant to the terms of any Receivables Purchase Agreement), or a guarantor of performance with respect to any transaction, agreement or arrangement concluded between the Supplier, any Buyer or Funder using the Service. Specifically, (i) C2FO does not control the quality, safety, legality or availability of the content or services accessed through the Service, the terms and conditions on which the Content, goods, and/or related services accessed are provided, or the Suppliers’ compliance with any agreement that it may execute with a Buyer; (ii) C2FO undertakes no duties to receive or distribute any payments agreed by the Supplier, any Buyer or Funder; and (iii) under no circumstances shall C2FO in any manner obtain an interest in, or otherwise be deemed to be within the chain of title of, any Content, goods, and/or related services accessed of the Supplier. Supplier acknowledges that C2FO takes no responsibility for the terms and conditions governing the provision of any Supplier Content, goods, and/or related services. The Supplier shall address any issues arising from any transaction, agreement or arrangement concluded between the Supplier, any Buyers and Funder using the Service exclusively with the relevant Buyer and/or Funder (as applicable) and shall not hold C2FO responsible or liable in any way for the actions or omissions of any Buyers. The Supplier agrees that all C2FO Market Closings will be held on a business day for the respective Buyer.
3.2 Effect of using the Service.
a) The Supplier acknowledges and agrees that the effect of using the Service and obtaining Accelerated Payment in relation to the relevant Approved Invoice results in either (i) the Supplier selling the Funded Invoices to a Funder pursuant to the applicable Receivables Purchase Agreement or (ii) the Supplier and Buyer varying any agreed payment terms solely related to that Approved Invoice made available through the Service to give effect to this paragraph a), as applicable. The Supplier agrees that (i) such sale or variation, as applicable, is effective as to and enforceable against the Supplier and the applicable Buyer with regard to each Funded Invoice, notwithstanding any formalities for amendment required by the terms of the relevant Approved Invoice, and (ii) the applicable Buyer shall be obliged to make all payments in respect of such Funded Invoice in accordance with the terms of such Funded Invoice and the terms of any relevant Receivables Purchase Agreement (if applicable).
b) It is always the Supplier’s decision whether to request Accelerated Payment of an Approved Invoice. To the extent that such Accelerated Payment corresponds to a sale of such Funded Invoice to the Funder, such request for Accelerated Payment shall be a Request (as defined in the applicable Receivables Purchase Agreement) and upon the delivery of a Request by Supplier with respect to such sale of certain Receivables (as defined in the applicable Receivables Purchase Agreement) and the Acceptance (as defined in the applicable Receivables Purchase Agreement) of such Request by a Buyer (as defined in the applicable Receivables Purchase Agreement), in each case in accordance with the applicable Receivables Purchase Agreement, the terms and conditions of the applicable Receivables Purchase Agreement shall apply to such transaction and the Purchased Receivables (as defined in the applicable Receivables Purchase Agreement).
c) The Supplier expressly acknowledges and agrees that the Funder’s provision of funding in the form of purchases under any Receivables Purchase Agreement is uncommitted and that the Funder shall not, at any point, have any obligation to purchase Funded Invoices in full or in part of an Accelerated Payment, nor shall the Funder be liable for any delay in any Accelerated Payment or any other payment in connection with the Services.
d) If (i) Supplier makes a request for Accelerated Payment with respect to any Approved Invoice, and (ii) a Funder communicates its acceptance of such request to the Site, the Supplier will be deemed to have made a Request (as defined in the RP Terms) under the applicable Receivables Purchase Agreement with respect to the relevant Proposed Receivables (as defined in the RP Terms) and a receivables purchase agreement in the form of the RP Terms shall be entered into as of the date of such acceptance between Supplier (as seller under the applicable Receivables Purchase Agreement) and the relevant Funder (as buyer under the applicable receivables purchase agreement) (a “Receivables Purchase Agreement”) and the applicable Approved Invoice will be sold to such Funder pursuant to the applicable Receivables Purchase Agreement. All subsequent requests by such Supplier for Accelerated Payment of any other Approved Invoices in relation to which such Funder communicates its acceptance to the Site will be deemed to be Requests and Acceptances (each as defined in the RP Terms) under the applicable Receivables Purchase Agreement.
e) The Supplier acknowledges and agrees that, with respect to those Funded Invoices that have been sold to a Funder, the relevant Funder has purchased pursuant to the applicable Receivables Purchase Agreement a right to get paid an amount equal to the approved amount of the Funded Invoice on the due date for such Funded Invoice by the relevant Buyer.
f) The Supplier expressly acknowledges and agrees that, if the Buyer makes an Accelerated Payment, (i) the Supplier accepts any Accelerated Payment in full and final settlement of any Funded Invoice; (ii) the Supplier accepts and agrees that the Accelerated Payment discharges and satisfies in full any amount claimed under such Funded Invoice; (iii) the Supplier waives its rights to claim the amount specified in such Approved Invoice in return for the Accelerated Payment. If neither the Buyer nor the Funder have made an Accelerated Payment as contemplated by this Agreement, the relevant Approved Invoice shall remain payable to the applicable Supplier by the applicable Buyer in accordance with its applicable terms.
g) Supplier acknowledges that it may be required to submit documents to the Buyer and/or the Funder in order to comply with applicable market tax laws and regulations. In the event any requested documents are not provided in the timeline specified by either the Buyer, the Funder or C2FO, the Supplier may not receive early payment of their invoice(s).
h) The Award File may require the Supplier, where appropriate, to post an adjustment to its tax records (for example, in relation to turnover taxes such as VAT, GST or equivalent local sales taxes referred to hereafter as ‘VAT/GST’). If this is the case, the Supplier may in certain countries, subject to local VAT/GST regulations in the relevant country, treat the Award File as an appropriate document to adjust VAT/GST records. The responsibility to ensure that there is an appropriate document to adjust VAT/GST records, subject to relevant local VAT/GST regulations, rests solely with the Supplier. In some countries, the Award File may not show an updated VAT amount as it is not appropriate to adjust the relevant tax amount charged on the original Supplier invoice. Please note that the responsibility of ensuring that an accurate VAT/GST adjustment is posted in the Supplier’s VAT records rests solely with the Supplier and is not C2FO’s responsibility. In particular, where the Supplier has not charged VAT/GST on the original invoice, and consequently the Award File shows no VAT adjustment, it is the Supplier’s sole responsibility to ensure that any manual VAT/GST adjustments, which may be required under domestic legislation, are made to the relevant VAT/GST records. By accepting this clause the Supplier acknowledges that both the Buyer and the Supplier have authorized C2FO to issue the Award File on their behalf whilst clearly showing the Buyer and Supplier names and other relevant details.
3.3 Availability of Service. Notwithstanding anything to the contrary stated herein, the Supplier acknowledges and agrees that the availability of the Service is subject to the availability of connection services to and within the Internet and to other network functions within and around the Internet and that the Internet, by its nature, is not fault-tolerant and C2FO shall not have any liability for any breach of any representation, warranty or covenant of this Agreement that arises out of or relates to the unavailability of such connection services and other network functions for whatever reason.
3.4 Modification of Service. The Supplier understands and agrees that C2FO may modify the Service, their names, or the manner in which the Service is made available, and that those modifications may create differences in how the Supplier accesses the Service. The Supplier further understands and agrees that, upon reasonable advance written notice to the Supplier, C2FO reserves the right to replace any of the Service with services offering the same or more functionality than its predecessor.
3.5 Supplier Services. Where agreed to in the sign up process or as otherwise agreed between the Parties, C2FO will provide the Supplier Services to the Supplier.
3.6 Indemnity. The Supplier shall indemnify, defend and hold harmless C2FO and its directors, officers, members, managers and employees from and against all claims, actions, liabilities, losses, expenses, damages and costs (including reasonable attorneys’ fees), that may at any time be incurred by reason of claim from any third party arising out of or relating to a breach of this Agreement by the Supplier; any claim from a Buyer arising out of the Supplier’s use or misuse of the Service, or any claim that is inconsistent with a Supplier’s representations or warranties to C2FO contained in this Agreement.
4. PROPRIETARY RIGHTS
4.1 Title to Technology. All Intellectual Property Rights pertaining to C2FO, the Software, Market Statistics and the Service, in whole or in part, shall be, vest with and remain the exclusive property of C2FO and its third party licensors. The Supplier shall not on its’ own behalf or on behalf of any third party violate C2FO’s Intellectual Property Rights.
4.2 Title to Transaction Information. As between the Parties, all Intellectual Property Rights in Transaction Information supplied by Supplier and/or its Authorized Users in connection with the Service are and shall remain the exclusive property of Supplier. C2FO makes no claims, warranties or representations with regard to the ownership of Transaction Information. Supplier grants to C2FO a non-exclusive, perpetual right and license to use any Transaction Information provided in connection with the Service.
4.3 Title to Content. All title, right, and interest in and to any Content submitted to C2FO in the course of providing the Service shall remain the property of the applicable Supplier or other third party owners. If all or part of any Content becomes the subject of an actual or threatened lawsuit or if C2FO believes such Content may violate a third party’s Intellectual Property Rights or applicable law, C2FO will immediately be entitled to remove such Content without incurring any liability to the Supplier. All title, right and interest in and to content licensed by C2FO from third party licensors and utilized in the process of providing the Service, if any, shall remain the exclusive property of C2FO or its third party licensors.
4.4 Suggestions C2FO shall have a royalty-free, worldwide, perpetual and irrevocable license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by the Supplier and its Authorized Users relating to the Service.
4.5 Supplier’s license to C2FO.Supplier hereby grants a limited, non-transferable license to C2FO for C2FO to use the Supplier’s name, logos and trademarks to identify the Supplier as a user of the Site and the Services for C2FO’s marketing and public relations purposes, including marketing materials, advertisements, customer lists, press releases, presentations, and publications during the term of this Agreement. C2FO must obtain the Supplier’s prior written consent for any other uses of Supplier’s name, logos, and trademarks, such consent not to be unreasonably withheld or delayed.
5. CONFIDENTIALITY AND DATA PROTECTION
5.1 Nondisclosure of Confidential Information.
Subject to the terms of a Receivables Purchase Agreement, each Party shall retain the other Party’s Confidential Information in the strictest confidence (need to know basis) and shall not disclose such Confidential Information to any third party. Each Party agrees: (i) to use the Confidential Information only for the purposes of this Agreement and as expressly permitted by this Agreement; (ii) not to make copies of or store Confidential Information or any part thereof except as expressly permitted by this Agreement; (iii) to reproduce and maintain on any copies of any Confidential Information such proprietary legends or notices (whether of disclosing Party or a third party) as are contained in or on the original or as the disclosing Party may otherwise reasonably request; and (iv) to treat this Agreement as Confidential Information. The receiving Party shall notify the disclosing Party in writing of any known unauthorized use, possession or disclosure of Confidential Information of the disclosing Party. The disclosing Party shall have the sole right (but shall be under no obligation) to take legal or other action against any third party with respect to any such unauthorized use, possession or disclosure of Confidential Information of the disclosing Party, and the receiving Party shall cooperate with the disclosing Party in such effort.
5.2 Remedies. The Parties agree that, notwithstanding any other section of this Agreement, the non-breaching Party shall be entitled to seek equitable relief to protect its interests, including but not limited to preliminary and permanent injunctive relief, as well as money damages. Nothing stated herein shall be construed to limit any other remedies available to the Parties.
5.3 Disclosures to Governmental Entities. If a Party becomes legally obligated to disclose Confidential Information (“Disclosing Party”) by any governmental entity as a result of court order, subpoena or similar legal action (“Compelled Disclosure”), the Disclosing Party will give the other Party (if allowed) prompt written notice. The Disclosing Party will cooperate with the other Party’s reasonable efforts to quash, modify or challenge the Compelled Disclosure, and will disclose only such information as is legally required. Notwithstanding anything herein to the contrary, a Compelled Disclosure is not considered a breach of Section 5.1 above.
5.4 Data Protection. To the extent C2FO processes any Personal Data as a result of providing the Service, the Supplier agrees that C2FO does so as Data Processor and that the Supplier is the Data Controller in relation to such Personal Data and in relation to such Personal Data: (i) C2FO will process such Personal Data for the sole purpose of providing the Service in accordance with the terms of this Agreement and any lawful written instructions reasonably given to C2FO by Supplier from time to time; and (ii) Supplier will have in place appropriate technical and organisational security measures against unauthorised or unlawful processing of such Personal Data and against accidental loss or destruction of, or damage to, such Personal Data. For the purposes of this Agreement, the terms “Personal Data”, “Data Processor” and “Data Controller” shall have the same meaning as set out in the Data Protection Act 1998.
5.5 International Data Transfers. C2FO and Supplier agree that any Personal Data processed as a result of providing the Service will be hosted or stored in the United States of America by C2FO’s Affiliate. In respect of such Personal Data, C2FO represents and warrants that it has taken appropriate measures to comply with applicable Data Protection Laws in respect of such Personal Data.
6. TERM AND TERMINATION
6.1 Term. This Agreement shall become effective on the date the Supplier or any Authorized User first registers on the Site and agrees to these terms and shall continue in force so long as the Service is being provided by C2FO to the Supplier.
6.2 Termination for Cause. C2FO may terminate this Agreement if (a)(i) the Supplier defaults under the terms, conditions and warranties of this Agreement; and (ii) such default is not cured within three (3) business days after notice of default is provided to the Supplier; or (b) the Supplier terminates or suspends its business activities, becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding under any applicable law.
6.3 Termination for Convenience. Either Party may terminate this Agreement at any time for any reason at its sole discretion by providing the other Party no less than thirty (30) days advance written notice thereof.
6.4 Effect of Termination. Upon termination of this Agreement consistent with the terms herein, C2FO may immediately discontinue Supplier’s access to and use of the Service. Supplier shall promptly discontinue use of any Service and destroy any Confidential Information that Supplier has received from C2FO.
6.5 Survival. Notwithstanding any termination of this Agreement, Sections 6.1 – 6.3 (“Confidentiality”) shall survive for a period of five (5) years, Section 9.3 (“Employee Solicitation”) shall survive for a period of one (1) year, while Sections 3.6 (“Indemnity”), 4 (“Proprietary Rights”), 7 (“Warranty; Disclaimer; Limitation of Liability”), and 8.5 (“Governing Law”) shall survive termination of this Agreement indefinitely. All other rights granted hereunder will cease upon termination.
7. DISCLAIMER; WARRANTY; LIMITATION OF LIABILITY.
7.1 Disclaimer. To the maximum extent allowed by law and except as unambiguously and expressly set forth in this Agreement, the Service Supplier Services are provided “as is” and C2FO specifically excludes and disclaims all implied warranties, conditions and representations (including relation to quality, skill and care and fitness for a particular purpose) connected with, related to or arising out of this Agreement. C2FO expressly excludes and disclaims any representation, condition or warranty that access or use of the Service will be error-free, secure or uninterrupted, or that information or content will be accurate or timely.
7.2 Supplier’s Warranty. Supplier represents and warrants that (i) its Authorized Users have authority to act on behalf of the Supplier; and (ii) all Transaction Information or other materials submitted by the Supplier to C2FO hereunder is correct, accurate, up-to-date and will not (A) infringe on any third party’s rights, including any Intellectual Property Rights, (B) violate any applicable law, statute, ordinance or regulation; or (C) contain viruses, trojan horses, worms, time bombs, cancel bots or other similar harmful or deleterious programming routines.
Supplier represents and warrants that: (i) it is duly organized, validly existing and in good standing under applicable law; (ii) it has the power and authority to execute, deliver and perform under this Agreement; and (iii) this Agreement constitutes a valid and binding obligation enforceable in accordance with its terms.
Supplier hereby agrees that Buyer, C2FO and/or the relevant Funder may disclose Transaction Information and any relevant banking information, as necessary and applicable, to (i) Funder or Funder’s affiliates, (ii) to third parties providing funds or payment reconciliation services as required to make payments to Supplier of Accelerated Payments or otherwise in connection with the Services, (iii) to actual or potential assignees, transferees or participants of Funder or any other person with whom Funder enters into (or may potentially enter into) any transaction under which payments are to be made by reference to any relevant Funded Invoice, (iv) to any person who holds or is considering holding notes in one of the secured notes programs of Funder’s group of companies (and to any relevant note issuer, note trustee and distributor of such secured note program), (v) to any relevant service providers, insurers or professional advisers of Funder (or its relevant affiliates) (vi) or to any governmental agency or authority or supervisory or regulatory body or as otherwise required by any applicable law or regulation.
7.3 Limitation of Liability.
To the maximum extent allowed by law, in no event will C2FO (and any C2FO subcontractor) or the Funder or any of its Affiliates be liable for any loss of profits or revenue, loss of business, goodwill or reputation, loss of anticipated savings, loss of use, business interruption, loss of data or costs of procurement of substitute goods, technologies or services, cost of cover or punitive or exemplary, or and direct, indirect, special, incidental or consequential damages of any kind in connection with or arising out of the furnishing, performance of or use of the Service or Supplier Services, whether alleged as a breach of contract or tortious conduct, including negligence, even if the Supplier has been advised of the possibility of such damages, including but not limited to (1) the failure, for any reason, to receive accelerated payment of any invoice under the Service or for any delay in such payment; (2) any financing aspects of the Service; (3) the accounting treatment or tax consequences arising out of accelerated payments or the Supplier’s participation in the Services otherwise; (4) the failure or alleged failure of the Service, or any party involved therewith, to comply with applicable laws; or (5) any damages caused by delay in delivery or furnishing the Service or Supplier Services. C2FO’s aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement, will not, in any event, exceed the greater of fees actually paid by Supplier to C2FO pursuant to this Agreement during the six (6) months prior to the occurrence of the breach or incident asserted as causing damage or $100.00.
7.4 Exclusion. Nothing in this Agreement excludes the liability of C2FO for death or personal injury caused by C2FO’s negligence or for fraud or fraudulent misrepresentation.
8.1 Notices. Any notice required or permitted under the terms of this Agreement shall be delivered in person, by fax, overnight courier service, or mailed by first class, registered, or certified mail, postage prepaid, if to the Supplier: to the address supplied by the Supplier during the sign-up process or if to C2FO: Attention: C2FO – Legal Notices, 2020 W. 89th St., Ste. 200, Leawood, KS 66206 (USA). All such notices shall be deemed to have been given upon receipt.
8.2 Third party rights. Buyer and Funder and their successors and permitted assigns, as applicable, shall be deemed to be a third party beneficiary of the terms of this Agreement and have the benefit of and be entitled to enforce the terms of this Agreement against Supplier. Subject to the foregoing and save as expressly provided for in this Agreement, this Agreement does not confer any rights on any person not a Party to this Agreement.
8.3 Employee Solicitation. Both Parties acknowledge that each other’s business is dependent upon being able to adequately staff projects with qualified persons and adequately utilize its employees and independent contractors. Neither Party shall, directly or indirectly, for itself, or on behalf of any other person, firm, corporation or other entity, whether as principal, agent, employee, stockholder, partner, member, officer, director, sole proprietor, or otherwise, solicit, participate in or promote the solicitation of the other Party’s employees or independent contractors to leave the employ or service of the other Party, during the period such employee or independent contractor is working with the other Party and for one (1) year immediately following the period for which such employee or independent contractor last performed services for the other Party.
8.4 Assignment and subcontracting. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Supplier, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of C2FO except as expressly permitted hereby or in accordance with any Receivables Purchase Agreement. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and assigns. Notwithstanding anything to the contrary, C2FO shall have the right to assign the Agreement and/or subcontract any of its obligations hereunder in part or in full to third parties.
The Funder (and any of its successors and permitted assigns) shall have the right, without consent from or notice to any person, to sell, transfer, assign, negotiate, or grant participations in, or declare a trust or create security over, all or any part of, or any interest in, its rights and benefits under the terms of this Agreement.
8.5 Governing Law. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of the State of New York, USA, without reference to conflict of laws principles. The parties irrevocably agree that the courts of the State of New York have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims). A Buyer and the Funder may, as provided for in this Agreement, enforce this Agreement against a Supplier pursuant to Section 3.2 of this Agreement in any court of competent jurisdiction. For the avoidance of doubt, entry into and the performance of the terms of any Receivables Purchase Agreement and such other matters as expressly set forth therein shall be governed and construed in accordance with the laws of such jurisdiction as agreed between the parties to such Receivables Purchase Agreement.
8.6 Independent Contractors. The relationship of C2FO and the Supplier established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed or implied to give either Party the power to direct or control the day-to-day activities of the other or constitute the Parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking.
8.7 Terms. C2FO reserves the right to amend or terminate all or any part of this Agreement at any time. Any such amendments will be in accordance with applicable law, and C2FO will provide notice of such amendments to Funder and as otherwise required by law. Supplier agrees to abide by the Agreement in effect each time that Supplier accesses the Services. No waiver, amendment or variation to this Agreement by Supplier shall be valid unless in writing and signed by both Parties.
8.8 Miscellaneous. In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction: (i) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect. The failure of either Party to enforce at any time any of the provisions of this Agreement shall not be deemed to be a waiver of the right of either Party thereafter to enforce any such provisions. Except for any obligation to make payments, nonperformance of either Party shall be excused to the extent that performance is rendered impossible by Force Majeure. Section headings are for ease of reference only and do not form part of this Agreement. The Supplier acknowledges having read the terms and conditions set forth in this Agreement, understands all the terms and conditions, and agrees to be bound thereby. No employee, agent, representative, or Affiliate of C2FO has authority to bind C2FO to any oral representations or warranty concerning the Service. Any written representation or warranty not expressly contained in this Agreement will not be enforceable.
8.8 Governing Language. This Agreement is entered into in the English language. Any translation prepared for any reason shall be a non-binding accommodation of no legal effect, and the English version of this Agreement shall govern. All communications with respect to this Agreement shall be in the English language. Without limiting the generality of this Section 8.8, each of the Parties acknowledges that: (i) it shall not assert any claim based upon any translation or any discrepancy or purported discrepancy between such translation and this English-language version of this Agreement; and (ii) any such translation shall not be used to interpret this Agreement.
(Receivables Purchase Terms)
RECEIVABLES PURCHASE TERMS (the “RP Terms”)
1. Defined Terms
Terms used in these RP Terms but not otherwise defined in these RP Terms shall have the following meanings:
“Acceptance”: Has the meaning given to that term in Section 2(a) hereto.
“Account Debtor”: Any of Seller’s Buyers (as defined in the Service Terms and Conditions).
“Account Debtor Personal Data”: Any Personal Data concerning or received from an Account Debtor, that is Processed by the Buyer or its Personnel pursuant to or in connection with this Receivables Purchase Agreement.
“Applicable Receivable”: Has the meaning set forth in paragraph (a) of Schedule 1 (Representations and Warranties) hereto.
“Buyer”: Has the meaning given to that term in the definition “Receivables Purchase Agreement”.
“Business Day”: Any day that is not a Saturday, Sunday or other day on which banks in London or banks in the principal financial centre of the currency in which a relevant payment is due to be made, are required or permitted to close, and in relation to any date for payment of euro, any Target Day.
“Buyer’s Account”: The account of the Buyer, details of which have been notified by Buyer to Seller (which may be via the Platform), to which Collections in accordance with the terms of this Receivables Purchase Agreement will be paid (together with any additional or successor account as may be notified from time to time in writing from Buyer to Seller).
“Collections”: With respect to any Receivable, all cash collections, wire transfers, electronic funds transfers and other cash proceeds of such Receivable (including applicable VAT).
“Controller”: Has the meaning given to it in the GDPR.
“Data Protection Legislation”: All applicable legislation relating to data protection, including the Data Protection Act 2018, the GDPR and all legislation and/or regulations implementing or made under or pursuant to or replacing or superseding the Data Protection Act 2018, the GDPR or any such other applicable legislation.
“Data Subjects”: Has the meaning given to it in the GDPR.
“Dilution”: All actual and potential offsets to Purchased Receivables, including, without limitation, customer payment and/or volume discounts, write-offs, credit memoranda, returns and allowances, and billing errors; provided that, in no event shall the failure to make payment of a Purchased Receivable solely as a result of an Insolvency Event of an Account Debtor or the general lack of creditworthiness of the applicable Account Debtor be deemed a “Dilution” hereunder.
“Discount Rate”: In relation to the relevant Purchased Receivable, the difference between the Net Invoice Amount and the relevant Purchase Price, when expressed as a percentage rate per annum of the Net Invoice Amount, calculated, based on the number of days between the Purchase Date and the relevant Expected Maturity Date and a year of 360 days (or, in any case where the practice in the Relevant Market differs, in accordance with market practice).
“Dispute”: Any action, suit, proceeding, dispute (whether actual, pending or threatened), discount, deduction, claim, lien, charge, security interest, deemed trust, offset, defence, counterclaim or encumbrance of any kind relating to the Purchased Receivables, regardless of whether the same (i) is in an amount greater than, equal to or less than the Net Invoice Amount of the Purchased Receivables concerned, (ii) is bona fide or not, or (iii) arises by reason of an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or any other circumstance beyond the control of Seller or related Account Debtor. In the absence of an Insolvency Event of an Account Debtor or the failure of an Account Debtor to make any payment due to general lack of creditworthiness, any Purchased Receivables 30 days past due or more are deemed to have a Dispute and be subject to Section 6 hereto; provided that, in no event shall the failure to make payment of a Purchased Receivable solely as a result of an Insolvency Event of an Account Debtor or the general lack of creditworthiness of the applicable Account Debtor be deemed a “Dispute” hereunder
“Due Date”: With respect to any Purchased Receivable, the date the related invoice provides for timely payment in full of amounts owing thereunder.
“Effective Date”: the date on which the Buyer has communicated its first Acceptance as described in the definition of “Receivables Purchase Agreement”.
“Eligible Receivable”: A Receivable that:
(i) is not evidenced by any lease, instrument or chattel paper;
(ii) is in full force and effect and constitutes the valid and binding obligation of the related Account Debtor, enforceable in accordance with its terms;
(iii) as to which Seller is the legal and beneficial owner, free and clear of any lien, encumbrance, security interest or deemed trust;
(iv) without limiting any of the other provisions hereof, as to which Seller has not and has not agreed to sell, charge or otherwise transfer or encumber any right, title or interest therein, thereunder or thereto or in any portion or part thereof or in any amounts received thereunder;
(v) is payable in an amount not less than its Net Invoice Amount by the Account Debtor identified in the Request (including without any deduction or withholding for or on account of Tax);
(vi) is based on an actual and bona fide rendition of services or sale of goods by Seller in the ordinary course of its business that have been fully rendered or fully delivered as of the Purchase Date relating thereto; payments thereon are not contingent upon Seller’s fulfilment of any further obligation; and if arising out of the rendition of services, such services have been accepted;
(vii) is payable in full on the Due Date with respect thereto and is not an instalment receivable; the Due Date is less than or equal to 180 days from the date of issuance and is not past due;
(viii) is net of and not subject to any contractual allowances, set-offs, counterclaims, side agreements, credits, deductible limitations, commissions, fees, or other discounts other than those offsets reflected in the calculation of the Net Invoice Amount and the Purchase Price as of the Purchase Date relating thereto;
(ix) is not the subject of any Dispute or Dilution;
(x) is sold hereunder in good faith and without actual intent to hinder, delay or defraud present or future creditors of Seller, or to give Buyer any preference over other creditors of Seller;
(xi) is freely assignable and is not subject to a consent requirement by the applicable Account Debtor or any third party to the sale or other transfer of such Receivables or the grant of a security interest or other lien in such Receivables other than consents previously obtained in writing by Seller or restrictions which are rendered unenforceable by way of operation of applicable law;
(xii) no effective financing statement or other instrument similar in effect covering such Receivable is on file in any recording office, and no competing notice or notice inconsistent with the transactions contemplated in this Receivables Purchase Agreement remains in effect with respect to the applicable Account Debtor;
(xiii) is not due from (A) a Person that is a subsidiary or other affiliate of Seller, (B) any Person or group of Persons that owns or controls, by election of directors, appointment of managers, management contract or otherwise, more than 10% of the voting power to select Seller’s directors or senior management or to set Seller’s management policies or (C) any governmental agency, authority or entity or subdivision thereof;
(xiv) under which neither Seller nor the related Account Debtor is in default in the performance of any of the provisions of the documentation and/or the transactions related thereto; and
(xv) has been communicated by the relevant Account Debtor (or an affiliate of the relevant Account Debtor) to the Platform as having been validated and confirmed for payment to the relevant Seller.
In addition to the criteria set forth in the preceding clauses, in order for a Receivable to qualify as an Eligible Receivable, (a) such Receivable shall be evidenced by paper or electronic invoices or data files in form and substance reasonably satisfactory to Buyer that enable the Receivable to be properly identified, (b) the invoices or data files, as applicable, and the other information provided by Seller with respect to each such Receivable must be complete and correct in all material respects and all documents, attestations, contracts and agreements relating thereto that have been delivered to the Platform or the Buyer, as applicable, are true and correct in all material respects, (c) Seller shall have billed the applicable Account Debtor and delivered to such Account Debtor all requested supporting claim documents with respect to such Receivable, (d) no amounts with respect to such Receivable shall have been paid as of the date and time of the inclusion of such Receivable as a Proposed Receivable, (e) an Insolvency Event shall not have occurred and be continuing with respect to the related Account Debtor and (f) such Receivable shall have been originated in accordance with Seller’s credit and collection policies.
“Event of Repurchase”: Has the meaning set forth in Section 6(a) hereto.
“Expected Maturity Date”: With respect to any Purchased Receivable, the date arrived at by adding 30 calendar days to the Due Date or, if such date is not a Business Day, the following Business Day.
(a) sections 1471 to 1474 of the US Internal Revenue Code or any associated regulations;
(b) any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or
(c) any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
“FATCA Deduction”: A deduction or withholding from a payment under a Transaction Document required by FATCA.
“FATCA Exempt Party”: Either the Buyer or the Seller if such Person is entitled to receive payments free from any FATCA Deduction.
“Final Collection Date”: The date following the date on which Buyer has received (i) all Collections owing on the Purchased Receivables (other than Collections that have not been paid as a result of an Insolvency Event of an Account Debtor or the general lack of creditworthiness of such Account Debtor); (ii) all payments, if any, required to be paid by Seller under Section 6 hereof, including with respect to Events of Repurchase and Indemnified Amounts; and (iii) Buyer has notified Seller in writing that it will not purchase any further Receivables pursuant to this RPA.
“GDPR”: EU General Data Protection Regulation 2016/679.
“Indemnified Amounts”: Has the meaning set forth in Section 6(b) hereto.
“Indemnified Party”: Has the meaning set forth in Section 6(b) hereto.
“Insolvency Event”: With respect to any Person, such Person shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment, arrangement, composition or compromise for the benefit of creditors; or any formal step is taken, or petition, application or proceeding shall be instituted by or against such Person seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, dissolution, winding up, administration, reorganisation, arrangement (including by voluntary arrangement or scheme of arrangement), adjustment, protection (including a moratorium), compromise, relief, to stay the rights of creditors generally (or any class of creditors), or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganisation or relief of debtors (including any applicable corporations legislation to the extent the relief sought under such corporations legislation relates to or involves the compromise, settlement, adjustment or arrangement of debt), or seeking the entry of an order for relief or the appointment of a receiver, interim receiver, receiver/manager (either court or privately appointed), sequestrator, conservator, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of thirty (30) days, or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or such Person shall take any action to authorise any of the actions set forth above in this definition; provided, that in the case of the inability of a person to pay its debts as such debts become due arising by reason of currency restrictions or foreign political restrictions or regulations beyond the control of Seller or such Person, such event shall not be deemed an “Insolvency Event” hereunder.
“Material Adverse Change”: An event or circumstances that results or could likely result in (a) a material adverse change in (i) the business, condition (financial or otherwise), operations, performance or properties of Seller and its subsidiaries (taken as a whole), (ii) the ability of Seller to fulfil its obligations hereunder or under any Transaction Document, or (b) the material impairment of the validity or enforceability of, or the rights, remedies or benefits available to, Buyer under this Receivables Purchase Agreement or the Transaction Documents.
“Net Invoice Amount”: In the currency specified in the relevant invoice, the amount of the applicable Purchased Receivable shown on the invoice for such Purchased Receivable as the total amount payable by the related Account Debtor including applicable VAT (net of any discounts, credits or other allowances shown on such invoice).
“Participating Member State”: Any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
“Person”: An individual, partnership, company, corporation (including a business trust), limited liability company, limited partnership, joint stock company, trust, unincorporated association, joint venture or other entity, or a government, state or agency of a state or any political subdivision or agency thereof (whether or not having separate legal personality).
“Personal Data”: Has the meaning given to it in the GDPR.
“Personnel”: In relation to a party, any officer, employee, partner, member, director, agent, sub-contractor, subprocessor, or other personnel employed or engaged by that party.
“Platform”: C2FO’s proprietary electronic invoice prepayment discount market-based application services platform to which the Service Terms and Conditions pertain.
“Processing”: Has the meaning given to it in the GDPR, and “Process”, “Processes” and “Processed” shall be interpreted accordingly.
“Proposed Receivables”: With respect to any Purchase Date, the Receivables proposed by Seller via the Platform for purchase hereunder, identified in a Request to be purchased on such Purchase Date.
“Provider”: Means C2FO.
“Purchase Date”: In respect of a Purchased Receivable, the Business Day that Buyer pays the relevant Purchase Price.
“Purchase Price”: Has the meaning set forth in Section 2(c) hereto.
“Purchased Receivables”: Has the meaning set forth in Section 2(a) hereto.
“Receivables”: Any indebtedness or other payment obligation owing to Seller by an Account Debtor, whether now existing or hereafter created, together with the Related Rights with respect thereto, and with respect to each of the foregoing, all Collections and proceeds thereof.
“Receivables Purchase Agreement”: An agreement in the form of the RP Terms that is entered into as of the date of the first Acceptance referred to in sub-paragraph (ii) below between (i) the relevant Seller on the one hand who has communicated its acceptance of the Service Terms and Conditions (including, without limitation, the RP Terms) to the Platform in accordance with the provisions of the Service Terms and Conditions and has sent a Request with respect to certain Proposed Receivables in accordance with Section 2(a) hereto and (ii) the relevant Person who has communicated its Acceptance (in accordance with Section 2(a) hereto) of such Request by the relevant Seller, thereby also agreeing to be bound by the RP Terms in the capacity as buyer (the “Buyer”), as such agreement may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms (including, without limitation, by way of jurisdiction-specific supplemental terms).
“Related Rights”: With respect to any Receivable:
(i) all of Seller’s interest in any merchandise (including returned merchandise) relating to any sale giving rise to such Receivable;
(ii) all security interests or liens and property subject thereto from time to time purporting to secure payment of such Receivable, whether pursuant to a contract related to such Receivable or otherwise, together with all financing statements signed by the related Account Debtor describing any collateral securing such Receivable;
(iii) all tax refunds and proceeds of insurance with respect thereto;
(iv) all guaranties, insurance and other agreements or arrangements of whatever character from time to time supporting or securing payment of such Receivable whether pursuant to the contract related to such Receivable or otherwise; and
(v) all books, records and other information (including, without limitation, computer programs, tapes, discs, punch cards, data processing software and related property and rights) relating to such Receivable and the related Account Debtor.
“Relevant Market”: In relation to euro, the European interbank market, and in relation to any other currency, the London interbank market (or such other interbank market where relevant).
“Repurchase Price”: With respect to any Purchased Receivable subject to an Event of Repurchase, an amount equal to the sum of (i) the Purchase Price relating to such Purchased Receivable less any Collection received by Buyer in respect of such Purchased Receivable, plus (ii) interest for the period from the Purchase Date for such Purchased Receivable to the later of the Expected Maturity Date and the date the Repurchase Price has been repaid in full, at a rate equal to the Discount Rate.
“Request”: Has the meaning set forth in Section 2(a) hereto.
“Sanctions Authority”: Any of the United States of America, the European Union, the United Kingdom of Great Britain and Northern Ireland, the Government of Canada and the governments and official institutions or agencies of any of the foregoing including the Office of Foreign Assets Control (OFAC), the U.S. Department of State, and Her Majesty’s Treasury.
“Seller”: Means the Supplier (as defined in the Service Terms and Conditions).
“Supervisory Authority”: Has the meaning given to that term in the GDPR.
“TARGET Day”: Any day on which TARGET2 (the Trans-European Automated Real-time Gross Settlement Express Transfer payment system) is open for settlement of payments in euro.
“Tax” and “Taxes”: All and any tax, charge, levy, impost, duty or other charge, assessment or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same), whether disputed or not.
“Transaction Documents”: This Receivables Purchase Agreement, each Request, and all other documents and agreements to be executed and delivered by the Seller in connection with any of the foregoing (but excluding, for the avoidance of doubt, the Service Terms and Conditions).
“VAT”: Any value added tax, sales tax or other similar tax imposed in any jurisdiction.
2. Sale and Purchase.
(a) Sale. Seller may from time to time request via the Platform early funding in relation to certain Proposed Receivables. Seller acknowledges and agrees that any such request shall also constitute a request that Buyer purchase from Seller the relevant Proposed Receivables that are the subject of such request, together with all Related Rights, Collections and proceeds with respect thereto at the Purchase Price (as defined below) and upon the RP Terms and other terms previously communicated to the Seller via the Platform (a “Request”). Buyer, in its sole discretion and without any commitment or obligation of any kind whatsoever, may elect to accept or reject a Request. If Buyer elects to accept (in its sole discretion) a Request in relation to the relevant Proposed Receivables (as communicated by the Buyer to the Platform) such communication shall constitute an acceptance by Buyer to purchase the relevant Proposed Receivables from Seller for the relevant Purchase Price payment (“Acceptance”), and Buyer shall and upon such Acceptance hereby does purchase, and Seller shall and hereby does sell by assigning absolutely with full title guarantee to Buyer, all of Seller’s right, title and interest (but none of Seller’s underlying obligations to the applicable Account Debtor) with respect to such Proposed Receivables, and all Related Rights, Collections and proceeds with respect thereto (all Proposed Receivables from time to time (together with Related Rights, Collections and proceeds with respect thereto), once sold and purchased hereunder, collectively the “Purchased Receivables”).
(b) Trust. If any of Seller’s right, title and interest in any Purchased Receivable or any Related Rights, Collections or proceeds with respect thereto, is not transferred to Buyer by this Receivables Purchase Agreement for any reason, the relevant Seller hereby declares that it holds and will hold such rights, title and interest in such Purchased Receivable, Related Rights, Collections or other proceeds, as applicable, on trust absolutely for the benefit of Buyer.
(c) Purchase Price. The purchase price for a Purchased Receivable purchased on any Purchase Date (the “Purchase Price”) shall be the amount communicated to the Seller on the Platform as the applicable early payment amount. Buyer shall pay the Purchase Price, denominated in the currency in which the Purchased Receivable is notified to the Buyer by the Seller in the Request, to Seller’s account (notified by the Platform for this purpose) in immediately available funds. In the event that Buyer does not pay the Purchase Price prior to the date falling five (5) Business Days after Buyer’s Acceptance of a Request pursuant to paragraph (a) above, all of Buyer’s right, title, interest and benefit in the applicable Purchased Receivables shall be automatically reassigned back to Seller and Buyer shall have no liability under this Receivables Purchase Agreement for any non-payment. The Purchase Price payable by Buyer with respect to any Purchased Receivable shall be inclusive of all VAT that is or becomes chargeable on the sale and purchase of the Purchased Receivable and Buyer shall not be liable to pay any additional amount in respect of such VAT for the account of the relevant Seller.
(d) No Recourse.
(i) Except as otherwise provided in Section 6 hereof, each purchase of Purchased Receivables is made without recourse to Seller, and Seller shall have no liability to Buyer for Account Debtor’s failure to pay any Purchased Receivable when it is due and payable under the terms applicable thereto.
(ii) Buyer and Seller intend, and have structured, the transactions contemplated by this Receivables Purchase Agreement to take effect as an absolute and irrevocable sale, and Buyer and Seller each agree to treat each such transaction as a “true sale” for all purposes under applicable law. Seller will advise all persons inquiring about the ownership of the Receivables that all Purchased Receivables have been sold to Buyer.
(iii) Notwithstanding the intent of the parties hereunder, in the event that the transfers hereunder are recharacterized as other than a sale from Seller to the Buyer or any asset transferred hereunder is recharacterized as collateral for a secured loan or otherwise held to be property of Seller, or if for any other reason this Receivables Purchase Agreement is held or deemed to create a security interest in any Purchased Receivable (any of the foregoing, a “Recharacterization”), then in order to secure all of Seller’s obligations (monetary or otherwise) under this Receivables Purchase Agreement, whether now or hereafter existing or arising, due or to become due, direct or indirect, absolute or contingent, Seller hereby grants to Buyer a security interest in all of Seller’s right, title and interest (including any undivided interest of Seller) in, to and under all of the following, as applicable, whether now or hereafter owned, existing or arising: (i) all Purchased Receivables from time to time and all Related Rights with respect thereto, (ii) all Collections with respect to such Purchased Receivables and (iii) all proceeds of, and all amounts received or receivable under any or all of, the foregoing. In the case of any Recharacterization, Seller represents and warrants that each remittance of Collections or proceeds with respect thereto by Seller to Buyer hereunder will have been (i) in payment of a debt incurred in the ordinary course of its business or financial affairs and (ii) made in the ordinary course of the business or financial affairs between Seller and Buyer. Seller hereby authorizes Buyer to, from time to time, file such UCC financing statements or make such other filings or security registrations as Buyer may determine to be necessary or desirable to perfect the foregoing security interest and the ownership interest created by the sales of Receivables hereunder.
(iv) Whether or not the expressed intent of the parties that the transfers hereunder constitute sales, is respected or recharacterized, the Buyer shall have, with respect to the Purchased Receivables, Related Rights and Collections, and proceeds thereof, and in addition to all the other rights and remedies available to the Buyer hereunder and under the Transaction Documents, all the rights and remedies of a secured party under any applicable UCC.
If a Recharacterization shall occur, then Seller agrees that ten (10) Business Days shall be reasonable prior notice to Seller of the date of any public or private sale or other disposition of all or any of the Receivables or Related Rights by the Buyer. For the avoidance of doubt, the grant of a security interest by Seller is not intended to prejudice any sale of Purchased Receivables undertaken pursuant to this Receivables Purchase Agreement.
This Receivables Purchase Agreement is a security agreement for purposes of the UCC.
(e) Authorisation to Collect Receivables, Etc. Seller (A) hereby acknowledges the right of Buyer, as owner of the Purchased Receivables, to collect all amounts due under any and all Purchased Receivables and authorizes Buyer, its designees and successors to take any and all steps in Seller’s name or on behalf of Seller necessary or desirable, in such Person’s determination, to collect all amounts due under any and all Purchased Receivables, including (i) endorsing Seller’s name on cheques and other instruments representing Collections on Purchased Receivables, (ii) enforcing such Purchased Receivables and the provisions of the related contracts that concern payment and/or enforcement of rights to payment, (iii) taking such actions under or in connection with the Platform and the Service Terms and Conditions relating to the Purchased Receivables, and (iv) notifying Account Debtors of Buyer’s ownership interest in the Purchased Receivables and (B) hereby authorizes the Provider as operator of the Platform (and any of its affiliates, successors and permitted assigns) to perform such relevant tasks and give any relevant payment direction via the Platform to ensure that any amounts due under any Purchased Receivables can be so collected and that any Account Debtors are so notified.
(f) Rights of Buyer in Purchased Receivables. As owner of the Purchased Receivables, Buyer shall have no obligation to account for, to replace, to substitute, to return or reassign (as applicable) any Purchased Receivables or Collections thereon to Seller. Without limiting the foregoing, Buyer shall have the sole right to retain any gains or profits created by buying, selling or holding the Purchased Receivables. Buyer shall have the unrestricted right to further assign, transfer, deliver, hypothecate, grant security in respect of, subdivide or otherwise deal with the Purchased Receivables on whatever terms Buyer shall determine other than Purchased Receivables which have been reassigned by Buyer to Seller in accordance with the terms hereof.
3. Representations and Warranties.
Seller represents and warrants to Buyer on the Effective Date and on each Purchase Date that the representations and warranties set forth in Schedule 1 hereto and made by Seller are true and correct.
Seller agrees to perform the covenants set forth in Schedule 2 hereto.
5. Collection Activities.
(a) Collections. Seller hereby authorizes Buyer and the Provider (without creating an obligation to so act) to notify each Account Debtor of the assignment of the related Purchased Receivables to Buyer by delivering a notice of assignment in such form as determined by the Buyer in its sole discretion, and to instruct each Account Debtor to make all payments made by such Account Debtor on account of the related Purchased Receivables to the Buyer’s Account.
(i) No Collections shall be deemed received by Buyer for purposes of this Receivables Purchase Agreement until funds are credited to the Buyer’s Account as immediately available funds or otherwise actually received by the Buyer.
(ii) Any funds received by Seller in respect of any Purchased Receivables remain, nevertheless, the exclusive property of Buyer, and Seller agrees to hold such funds in trust for the exclusive use and benefit of the Buyer and to transfer them immediately to Buyer’s Account (and no later than one Business Day following receipt). Prior to such transfer, Seller shall not, directly or indirectly, utilize such funds for its own purposes, and shall not have any right to pledge such funds as collateral for any of its obligations (or for the obligations of any other Person).
(b) Power of Attorney. Seller, by way of security, hereby irrevocably appoints Buyer and each of its successors and assigns as the true and lawful attorneys of Seller, with full power of substitution and delegation, and hereby authorizes and empowers Buyer and each of its successors and assigns in the name and on behalf of Seller at any time to take such actions and execute and deliver such documents, as Buyer or its successors or assigns (as applicable) deems necessary or advisable in connection with any Purchased Receivable (i) to exercise its rights, powers and discretions under the Transaction Documents and its rights, title and interests in the Purchased Receivables, (ii) to perfect the purchase and sale of Purchased Receivables, including to send a notice of such purchase and sale to the Account Debtor of the transfers contemplated hereby and the sale of the Purchased Receivables or (iii) to make collection of and otherwise realize the benefits of any Purchased Receivable, including without limitation, to take all actions under or in connection with the Platform and the Service Terms and Conditions relating to the Purchased Receivables. Buyer or its successors or assigns (as applicable) shall have the right to bring suit, in its own name or Seller’s name, and generally have all other rights as the owner and holder of the Purchased Receivables, including the right to accelerate or extend the time of payment, settle, compromise, release in whole or in part any amounts owing on any Purchased Receivables and issue credits in its own name or the name of Seller. Buyer or its successors or assigns (as applicable) may endorse or sign its or Seller’s name on any checks or other instruments with respect to any Purchased Receivables owned by it or the goods covered thereby. Except as Buyer or its successors or assigns (as applicable) may otherwise expressly agree in writing, any and all returned, reclaimed or repossessed inventory and goods relating to any Purchased Receivables owned by it shall be set aside by Seller, marked with the name of the Buyer or its applicable successor or assignee (as applicable) and (in any case) held by Seller in trust for Buyer or its applicable successor or assignee (as applicable) as owner, and for the account of the Buyer or its applicable successor or assignee (as applicable).
6. Events of Repurchase; Indemnities and Set-Off.
(a) Events of Repurchase. If any of the following events (each an “Event of Repurchase”) occurs and is continuing:
(i) any representation or warranty by Seller hereunder with respect to any of the Purchased Receivables is incorrect when made or deemed made; or
(1) Seller fails to perform or observe any other term, covenant or agreement (including, without limitation, hereunder) with respect to any of the Purchased Receivables;
(2) Seller instructs an Account Debtor not to make a payment with respect to a Purchased Receivable, or to make such payment to an account other than the Buyer’s Account; or
(3) a Dispute or Dilution exists, arises or is created with respect to any Purchased Receivable, or an Account Debtor asserts a Dispute with respect to any Purchased Receivable,
then Seller shall promptly notify Buyer upon becoming aware of the occurrence of any such Event of Repurchase and Seller shall, within 2 Business Days of demand by Buyer, (x) repurchase such Purchased Receivable at the Repurchase Price or (y) if such Event of Repurchase has occurred as a result of a Dilution or a Dispute which has the effect (or which the Account Debtor claims has the effect) of reducing the Net Invoice Amount of such Purchased Receivable, repay an amount equal to the amount of such Dilution or reduction affecting such Purchased Receivable, or (z) if such Event of Repurchase has occurred as a result of the Purchased Receivable not being an enforceable payment obligation of the relevant Account Debtor for any reason, pay an amount equal to the Repurchase Price of that Purchased Receivable, and such Repurchase Price or payment shall be paid to the applicable Buyer’s Account in immediately available funds. For the avoidance of doubt, it is acknowledged that in no event shall the failure to make payment of a Purchased Receivable by an Account Debtor solely as a result of an Insolvency Event in respect of such Account Debtor or the general lack of creditworthiness of such Account Debtor cause the occurrence of an Event of Repurchase. Upon the payment in full of the Repurchase Price with respect to a Purchased Receivable (but for avoidance of doubt, not in the case where Seller is repaying an amount equal to a Dilution or any reduction in the Net Invoice Amount as a result of a Dispute, in which case Buyer will remain owner of the related Receivable) in accordance with the terms hereof, such Purchased Receivable shall hereby be, and be deemed to be, repurchased by and automatically reassigned to Seller from Buyer without recourse to or warranty by Buyer. Seller agrees that Buyer may set off against any unpaid obligation of Seller under this Section 6(a). The Repurchase Price or repayment payable by Seller shall be exclusive of all VAT and, accordingly, if any VAT is or becomes chargeable on any Repurchase Price or repayment of a Purchased Receivable in accordance with this Receivables Purchase Agreement and Buyer is required to account to the relevant taxing authority for such VAT, Seller shall pay to Buyer (in addition to and at the same time as paying the Repurchase Price or repayment) an amount equal to such VAT.
(b) Indemnity. Seller hereby agrees to indemnify Buyer and its officers, directors, agents, representatives, shareholders, counsel, employees and lenders (each, an “Indemnified Party”) from and against any and all claims, losses, costs, expenses and liabilities (including reasonable and documented legal fees) (all of the foregoing being collectively referred to as “Indemnified Amounts”) arising out of or resulting from any of the following: (i) the sale to Buyer of any Receivable which purports to be a Purchased Receivable as to which the representations and warranties made herein are not true and correct on the relevant Purchase Date; (ii) any representation or warranty made or deemed made by Seller (or any of its officers) under or in connection with this Receivables Purchase Agreement was incorrect when made; (iii) the failure by Seller or any Purchased Receivable to comply with any applicable law, rule or regulation, or any failure by Seller to comply with any term, covenant or other provision of this Receivables Purchase Agreement or any Transaction Document; (iv) the failure of a Purchased Receivable (including all Related Rights and the proceeds and Collections in respect thereof) to vest in Buyer, free and clear of any security interests, liens, deemed trusts or encumbrances of any kind or nature whatsoever; (v) any Dispute or Dilution or any other claim related to such Purchased Receivable or the furnishing or failure to furnish services or merchandise or relating to collection activities with respect to such Purchased Receivable; (vi) the commingling by Seller of Collections in respect of any Purchased Receivable at any time with other funds of Seller or any other Person or instructing any Account Debtor to pay Collections in respect of any Purchased Receivable to any account other than the Buyer’s Account; (vii) any products liability claim, personal injury or property damage suit, environmental liability claim or any other claim or action by a party of whatever sort, whether in tort, contract or any other legal theory, arising out of or in connection with the goods or services that are the subject of any Purchased Receivable with respect thereto or (viii) this Receivables Purchase Agreement and the transactions contemplated hereby and the purchases by and owned by the Buyer of the Purchased Receivables pursuant to the terms hereof; provided, however, that in all events there shall be excluded from the foregoing indemnification any claims, losses or liabilities (x) resulting solely from the gross negligence or wilful misconduct of such Indemnified Party as determined in a final non-appealable judgment by a court of competent jurisdiction or (y) resulting solely as the result of an Insolvency Event of an Account Debtor or the general lack of creditworthiness of such Account Debtor.
(c) Tax Indemnification.
(i) Any and all payments (of whatever nature) made to Buyer pursuant to this Receivables Purchase Agreement and any Transaction Document (including the payments on the Purchased Receivables from the Account Debtors) shall be made free and clear of and without deduction or withholding for or on account of any Taxes other than as required by law. If any such Taxes are required by law to be deducted by Seller, or an Account Debtor, then: (x) in the case where the Seller is required to deduct such Taxes, (1) Seller shall pay such Taxes to the applicable taxing authority; and (2) Seller shall send the original or a certified copy of the receipt evidencing such tax payment, within 30 days of the payment date, to and as directed by Buyer; (y) in the case where an Account Debtor is required to deduct such Taxes, Seller shall immediately notify Buyer upon becoming aware of such Taxes having been deducted and shall use all reasonable efforts to obtain from the Account Debtor a certified copy of the receipt or other document evidencing payment of such Taxes and send such receipt or other document to Buyer upon receipt from the Account Debtor; and (z) where (x) applies, Seller shall increase the sum payable by any of them to Buyer; and where (y) applies, Seller shall pay to Buyer an amount equal to such Taxes so deducted by the Account Debtor so that, in each case, after the required deductions or withholdings have been made (including deductions or withholdings applicable to additional sums payable under this paragraph (z)), Buyer shall receive an aggregate net sum equal to the sum it would have received had no deduction or withholding been made. In addition, Seller shall pay and indemnify and hold Buyer harmless from and against, any Taxes that may at any time be asserted in respect of the Transaction Documents and the transactions contemplated under any Transaction Document, and all reasonable costs, expenses and legal fees in defending against the same, whether arising by reason of the acts to be performed by Seller hereunder or otherwise, without duplication for any Taxes that Seller has paid pursuant to this Section 6(c). The Seller shall not be required to make an indemnity payment under this Section 6(c) with respect to any Taxes (A) imposed or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by Buyer (x) under the law of the jurisdiction in which the Buyer is incorporated or organized or, if different, resident for tax purposes or in which the Buyer has a place of business or facility office in respect of amounts received or receivable in that jurisdiction, or (y) under the law of the jurisdiction in which any of Seller or an Account Debtor is incorporated or organized where such Taxes are imposed solely as a result of a present or former connection between Buyer and any such jurisdiction imposing such Taxes (other than connections arising solely from Buyer having executed, become a party to, performed its obligations under, received a payment under, or engaged in any other transaction pursuant to, or enforced by, any Transaction Document or (B) imposed by or pursuant to FATCA. All indemnifications required to be made under this Section 6(c) shall be made within ten (10) days from the date Buyer makes written demand.
(ii) All amounts expressed to be payable under any Transaction Document by the Seller to Buyer which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply. If VAT is or becomes chargeable on any supply made by Buyer to Seller under any Transaction Document and Buyer is required to account to the relevant tax authority for the VAT, the Seller must pay to Buyer (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and Buyer must promptly provide an appropriate VAT invoice to the Seller). Where the Seller is required to reimburse or indemnify Buyer for any cost or expense, it shall reimburse or indemnify Buyer for the full amount of such cost or expense including such part thereof as represents VAT, save to the extent Buyer reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant taxing authority.
(iii) Each party to this Receivables Purchase Agreement shall, within ten Business Days of a reasonable request by another party (x) confirm to that other party whether it is a FATCA Exempt Party or not a FATCA Exempt Party; (x) supply to that other party such forms, documentation and other information relating to its status under FATCA as that other party reasonably requests for the purposes of that other party’s compliance with FATCA; and (y) supply to that other party such forms, documentation and other information relating to its status as that other party reasonably requests for the purposes of that other party’s compliance with any other law, regulation, or exchange of information regime. If a party to this Receivables Purchase Agreement confirms to another such party pursuant to this paragraph (iv) that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that party shall notify that other party reasonably promptly. This paragraph shall not oblige any party to do anything which would or might in its reasonable opinion constitute a breach of any law or regulation, any fiduciary duty, or any duty of confidentiality. If a party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with this Section 6(c)(iii) then such party shall be treated for the purposes of the Transaction Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the party in question provides the requested confirmation, forms, documentation or other information. Each party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction. Each party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the party to whom it is making the payment.
(d) Data Protection Indemnity. Seller hereby agrees to indemnify Buyer and its respective officers, directors, agents, representatives, shareholders, and employees from and against any and all claims, losses, costs, expenses and liabilities (including legal fees) incurred by such person as a result of Seller not complying with any Data Protection Legislation applicable to it or Seller not making or maintaining any notices, registrations or consents or taking any steps as are required for the purposes of any Data Protection Legislation applicable to it in order to permit the disclosure of personal data to and processing of the personal data by Buyer in the manner described in this Receivables Purchase Agreement.
(e) Set-Off. Seller further agrees that, unless Seller notifies Buyer in writing that it desires to pay on the date when due any amounts due under this Section 6 or any other fees, costs and expenses due under a Transaction Document and Seller makes such payment to Buyer in immediately available funds on such date such payment is due, Seller hereby irrevocably instructs and authorizes Buyer to set-off such amount against the Purchase Price of any Proposed Receivables to be purchased. No notification, act or consent of any nature whatsoever is required prior to the right of Buyer to exercise such right of set-off.
(f) UCC. The rights granted to Buyer hereunder are in addition to all other rights and remedies afforded to Buyer as a secured party under the UCC or any similar law in any jurisdiction applicable to the related Seller or the Servicer.
(g) Payments. Any payment due to be made to the Buyer pursuant to this Section 6 shall, unless otherwise instructed by the Buyer to the Seller, be made to the applicable Buyer’s Account in immediately available funds.
(h) Notices. Unless otherwise provided herein, all communications by Seller or Buyer or any other agreement entered into in connection herewith shall be in writing and shall be sent via electronic mail or personally delivered or sent by a recognized overnight delivery service, certified mail, postage prepaid, return receipt requested, or by facsimile to Seller or Buyer, as the case may be, at its address as set forth below (except for financial statements and other informational documents which may be sent by first-class mail, postage prepaid, or by electronic mail):
If to Seller: [Correspondence address as notified by Seller to the Platform]
If to Buyer: [Correspondence address as notified by Buyer to the Award File (as defined in the Supplier Terms and Conditions)]
Any Request, and any supporting documentation in connection herewith or therewith, such as copies of invoices, may be sent by Seller as a PDF file attachment to an electronic mail or otherwise be communicated via the Platform in accordance with the applicable Service Terms and Conditions, and Buyer and Seller may otherwise communicate by electronic mail or facsimile. Seller agrees that Buyer may presume the authenticity, genuineness, accuracy, completeness and due execution of any Request and any electronic mail or facsimile communication (in case of such electronic mail or facsimile communication bearing a facsimile or scanned signature resembling a signature of an authorized Person of Seller) without further verification or inquiry by Buyer. Seller acknowledges and agrees that Buyer shall be deemed to be a third party beneficiary of and shall be entitled to enforce section 8.2 and any other provision applicable to the Buyer and the Purchased Receivables set forth in the Service Terms and Conditions. Notwithstanding the foregoing, Buyer in its sole discretion may elect not to act or rely upon such a communication and shall be entitled (but not obligated) to make inquiries or require further Seller action to authenticate any such communication.
A Person may change the address at which it is to receive notices hereunder by written notice in the foregoing manner given to the other.
All covenants, representations and warranties made herein shall continue in full force and effect so long as any Purchased Receivables remain outstanding and this Receivables Purchase Agreement remains in effect. Seller’s obligation to indemnify Buyer with respect to the expenses, damages, losses, costs and liabilities shall survive until all applicable statute of limitations periods with respect to actions that may be brought against Buyer have run.
Seller agrees to reimburse Buyer for all reasonable costs and expenses, including reasonable legal fees and expenses, in connection with the preparation, negotiation, administration and enforcement of this Receivables Purchase Agreement and the other Transaction Documents. Such costs and expenses will be reimbursed by Seller, upon presentation of a statement of account, regardless of whether the transaction contemplated hereby is actually completed and the Transaction Documents are actually signed. Seller also agrees to pay, on demand, all stamp and other similar Taxes and fees payable or determined to be payable in connection with the execution, delivery, filing and recording of this Receivables Purchase Agreement or the other Transaction Documents, as applicable, and agrees to indemnify each Indemnified Party against any liabilities with respect to or resulting from any delay in paying or omission to pay such Taxes and fee.
9. Governing Law
(a) This Receivables Purchase Agreement (including, without limitation, the entry into and performance of its terms) shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to any conflicts of law principles other than Section 5-1401 and 5-1402 of the General Obligations Law of the State of New York.
(b) Each of the parties hereto hereby agrees that any dispute arising out of or in connection with this Receivables Purchase Agreement, including any question regarding its existence, validity or termination, shall be submitted to and finally resolved by arbitration before a single neutral arbitrator at JAMS pursuant to its Comprehensive Arbitration Rules & Procedures (the “JAMS Rules”). The arbitrator shall be a practicing or retired attorney who is experienced in disputes regarding commercial finance and shall be selected in accordance with the JAMS Rules. The seat, or legal place, of arbitration shall be New York, New York. The language to be used in the arbitral proceedings shall be English. All testimonial hearings shall be heard in New York, New York unless the parties agree otherwise. Each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding shall be heard and determined by such arbitration; provided, however, either party may apply to any state or federal court located in the State of New York and seek injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. The parties agree to submit to the jurisdictions of the New York federal and state courts for any proceeding for injunctive relief in aid of arbitration, to compel arbitration pursuant to this agreement or to confirm or enforce an arbitration award. Each of the parties hereto agrees that the award may be enforced in any court of competent jurisdiction, including without limitation the federal and state courts in New York. The arbitration, including any enforcement proceedings or motion to vacate, shall be subject to the Federal Arbitration Act, 9 U.S.C, §1 et seq which shall pre-empt any Unites States state arbitration law.
(c) TO THE EXTENT PERMITTED BY APPLICABLE LAW, BUYER AND SELLER IRREVOCABLY WAIVE ANY RIGHT THAT EITHER MAY HAVE TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, OR IN CONNECTION WITH ANY TRANSACTION DOCUMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED IN THIS RECEIVABLES PURCHASE AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS.
(d) Notwithstanding the provisions of the Service Terms and Conditions, as between the Seller and the Buyer, the Service Terms and Conditions shall be governed by, and construed in accordance with, the laws of the State of New York and all of the terms of this Section 9 shall apply to any dispute, interpretation or claim relating to or arising from the Service Terms and Conditions between the Buyer and the Seller.
10. General Provisions.
(a) Interpretation. Unless a contrary indication appears, a reference in this Receivables Purchase Agreement to:
(i) a “Seller” or “Buyer” or any other person shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Transaction Documents;
(ii) this “Receivables Purchase Agreement”, a “Transaction Document” or any other agreement or instrument is a reference to this Receivables Purchase Agreement, that Transaction Document or other agreement or instrument as amended, novated, supplemented, extended or restated;
(iii) a “regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;
(iv) a provision of law is a reference to that provision as amended or re-enacted; and
(v) “including” or “includes” means including or includes without limitation.
(b) Final Agreement; Binding Effect. This Receivables Purchase Agreement represents the final agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings and agreements with respect to such subject matter. The parties hereto agree that the making of the Request for the purchase of certain Receivables by the Seller and the Acceptance thereof by the Buyer, each in accordance with the terms of this Receivables Purchase Agreement shall constitute the due execution and delivery of this Receivables Purchase Agreement and upon the Effective Date, this Receivables Purchase Agreement shall constitute the legal, valid and binding obligation of the parties hereto, enforceable in accordance with its terms, except as limited by bankruptcy, insolvency, moratorium, fraudulent conveyance or other similar laws of general application relating to or affecting the enforcement of creditors’ rights generally and subject to general principles of equity (regardless of whether enforcement is sought at equity or at law).
(c) Remedies and Waivers. No failure to exercise, nor any delay in exercising, on the part of Buyer, any right or remedy under a Transaction Document shall operate as a waiver of any such right or remedy or constitute an election to affirm any Transaction Document. No election to affirm any Transaction Document on the part of Buyer shall be effective unless it is in writing. No single or partial exercise of any right or remedy shall prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in each Transaction Document are cumulative and not exclusive of any rights or remedies provided by law.
(d) Amendments. No provision of this Receivables Purchase Agreement may be amended or waived except with the consent of the Buyer and the Seller or, in the case of the Seller, otherwise in accordance with the Service Terms and Conditions. This Receivables Purchase Agreement shall bind and inure to the benefit of the respective successors and permitted assigns of each of the parties; provided, however, that the Seller may not assign any of its rights hereunder without Buyer’s prior written consent, given or withheld in Buyer’s sole discretion. Buyer shall have the right without the consent of or notice to Seller to sell, assign, transfer, negotiate, grant security interests in respect of, or grant participations in all or any part of, or any interest in, Buyer’s obligations, rights and benefits hereunder and in respect of any Purchased Receivable. Each provision of this Receivables Purchase Agreement shall be severable from every other provision hereof for the purpose of determining the legal enforceability of any specific provision.
(e) Partial Invalidity. If, at any time, any provision of a Transaction Document is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.
(f) Certificates and determinations. Any certification or determination by Buyer of a rate or amount under any Transaction Document is, in the absence of manifest error, prima facie evidence of the matters to which it relates.
(g) Currency symbols and definitions. “€”, “EUR” and “euro” denote the single currency of the Participating Member States and “$”, “USD”, “US$”, “Dollars” and “dollars” denote the lawful currency of the United States of America.]
(h) Execution; Counterparts. Each Transaction Document may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of such Transaction Document.
(i) Termination. This Receivables Purchase Agreement shall continue in effect until the later of the Final Collection Date and the expiry of no less than one month’s prior written notice provided by either party to this Receivables Purchase Agreement, provided that any termination of this Receivables Purchase Agreement shall be without prejudice to any rights that have arisen in respect of either party but which have not been satisfied as at such date of termination. For the avoidance of doubt, any purchase of Receivables hereunder shall be at Buyer’s sole discretion, notwithstanding the term of this Receivables Purchase Agreement contemplated in the immediately preceding sentence.
(j) Calculation of Interest. All interest amounts calculated on a per annum basis hereunder are calculated on the basis of the actual number of days elapsed and a year of 360 days or, in any case where the practice in the Relevant Market differs, in accordance with market practice. All amounts due hereunder (including pursuant to Section 6(a), Section 6(b) and Section 6(c)) shall accrue interest from and after the date when due at a rate per annum equal to the Discount Rate, plus 2.0% until paid, and shall be payable within ten (10) days of presentation of an invoice.
(i) Any payment to be made by Seller under the Transaction Documents shall be made in the currency in which it is stated to be due.
(ii) All payments to be made under any Transaction Document relating to costs, expenses and Tax shall be paid in the currency in which such costs, expenses or Tax are incurred.
(iii) No payment to Buyer (whether under any judgment or court order or otherwise) shall discharge the obligation of Seller in respect of which it was made unless and until Buyer shall have received payment in full in the currency in which that payment is due and to the extent that any such payment shall on actual conversion into such currency fall short of such obligation in that currency, Buyer shall have a separate course of action against the relevant Seller to recover the amount of the shortfall.
(l) Confidentiality. Each party hereto agrees to hold the Transaction Documents and all non-public information received by it (or any of its agents or representatives) in connection therewith from any other party hereto (or its agents and representatives) in confidence and agrees not to provide any Person with copies of any Transaction Document or such non-public information, other than to (a) any officers, directors, members, managers, employees or outside accountants, auditors or attorneys thereof (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such information and instructed to keep such information confidential), (b) governmental, banking, taxation or other regulatory authority or similar body or the rules of any relevant stock exchange with appropriate jurisdiction (including filings required or deemed advisable, under applicable securities laws) or pursuant to any applicable law or regulation, (c) any rating agency (including its professional advisers) as may be required to be disclosed to enable such rating agency to carry out its normal rating activities, and (d) with respect to Buyer, any Person to whom Buyer may sell or assign (including as a participation interest) all or any part of its rights hereunder (including any Purchased Receivable) as may be permitted by the terms hereof and any counterparty or potential counterparty (including any agent, dealer, trustee, issuer or investor) in any note programme secured against such Purchased Receivable (in the case of any assignee, participant, counterparty, potential assignee, potential participant or potential counterparty, so long as such Person enters into a confidentiality agreement on terms substantially similar to this Section 10(l) and any advisors thereof (it being understood that any advisor to whom such disclosure is made will be informed of the confidential nature of such information and instructed to keep such information confidential). Notwithstanding the foregoing provisions contained in this Section 10(l), provided that the other parties hereto are given notice thereof (to the extent legally permissible), the parties hereto will not be liable for disclosure of such information if such disclosure (i) was required by law, (ii) was in such Person’s possession or known to such Person prior to receipt (other than information which came to be known from information received from or on behalf of a party hereto in breach of this Section 10(l)), or (iii) is or becomes known to the public through disclosure in a printed publication (without breach of any of such Person’s obligations hereunder).
(i) The parties acknowledge that Seller and Buyer are each separate Controllers of the Account Debtor Personal Data, which they process for the purposes of performing their obligations under this Receivables Purchase Agreement.
(ii) The parties shall in relation to Account Debtor Personal Data:
(1) provide a level of security (including technical and organisational measures) for Account Debtor Personal Data appropriate to the risk in accordance with the Data Protection Legislation;
(2) inform each other without undue delay, after they become aware of any breaches of the Data Protection Legislation in relation to Account Debtor Personal Data;
(3) pass on to each other any enquiries or communications (including requests made by Data Subjects to exercise their rights pursuant to the GDPR) from Data Subjects, Supervisory Authorities or other competent authorities relating to Account Debtor Personal Data or its Processing by the other party.
(n) Anti-Terrorism Laws; Sanctions; Etc.
(i) To help fight the funding of terrorism and money laundering activities, United States Federal law requires all financial institutions to obtain, verify and record information that identifies each person or corporation who opens an account and/or enters into a business relationship. None of the requested payments or other transactions hereunder will violate the Trading With the Enemy Act (50 USC §1 et seq., as amended) or any of the foreign assets control regulations of the United States Treasury Department or any enabling legislation or executive order relating thereto or any other applicable sanctions law restrictions, or limitations. The Seller or its respective subsidiaries is not and will not become a “blocked person” as described in the Trading with the Enemy Act (or any similarly designated sanctioned or blocked entity under any applicable sanctions laws), any foreign asset control regulations or executive order or engages or will engage in any dealings or transactions, or be otherwise associated, with any such “blocked person”.
(ii) Seller hereby confirms, that neither it nor any of its subsidiaries or any of its or its subsidiaries’ directors, officers or employees or, to the knowledge of the Seller, any Account Debtor or any agent of the Seller that will act in any capacity in connection with or benefit from this Receivables Purchase Agreement, is an individual or entity that is, or is owned or controlled by Persons that are: (i) the subject of any sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury, the Hong Kong Monetary Authority or other relevant sanctions authority (collectively, “Sanctions”), or (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions, including, without limitation currently, Crimea Region, Cuba, Iran, North Korea, Sudan, Syria and Venezuela.
(iii) Seller further confirms, that no proceeds from any purchase of Purchased Receivables have been or will be, directly or indirectly, (i) used or (ii) loaned, contributed or otherwise made available to any subsidiary, joint venture partner or other Person, in any case, (A) to fund any activities or business of or with any Person, or in any country or territory, that, at the time of such funding, is, or whose government is, the subject of Sanctions, or (B) in any other manner that would result in a violation of Sanctions by any Person (including any Person participating in any purchase of Purchased Receivables, whether as underwriter, advisor, investor, or otherwise).
(iv) Seller further represents that neither it nor, to its knowledge, any director, officer, agent, employee, subsidiary or other person acting on behalf of Seller or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such Persons of any applicable anti-bribery law, including but not limited to, the United Kingdom Bribery Act 2010 (the “UK Bribery Act”) and the U.S. Foreign Corrupt Practices Act of 1977 (the “FCPA”). Furthermore, Seller and, to its knowledge, its affiliates shall continue to conduct their business in compliance with all applicable anti-corruption laws and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith. No part of the proceeds of any Purchased Receivables will be used, directly or indirectly, for any payment that could constitute a violation of any applicable anti-bribery law.
(v) Seller acknowledges and agrees that (a) Buyer is required to act in accordance with the laws and regulations of various jurisdictions, including those imposed by Sanctions Authorities and those that relate to the prevention of money laundering, terrorist financing, bribery, corruption and tax evasion, (b) Buyer may take any action which it considers appropriate to act in accordance with such laws and regulations, and (c) Buyer will not be liable for any loss or damage arising as a result of or in connection with such action.
(o) PATRIOT Act. Buyer hereby notifies Seller that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that identifies Seller, which information includes the name and address of Seller and other information that will allow Buyer to identify Seller in accordance with the Act. Seller shall, promptly following a request by Buyer, provide all documentation and other information that Buyer requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Act.
(p) Recitals, Schedules and Exhibits. All of the recitals hereto and all of the schedules and exhibits attached hereto are hereby incorporated herein and are made a part hereof by this reference.
(q) Limitation of Liability. In no event shall Buyer be liable to Seller or any other Person, for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, indirect, punitive or consequential damages arising out of this Receivables Purchase Agreement any other Transaction Document or the transactions contemplated hereby or thereby (whether or not Buyer has been advised of the possibility of such loss or damages).
(r) Third party rights. No person who is not a party to this Receivables Purchase Agreement shall have any rights to enforce any term of this Receivables Purchase Agreement, provided that the Provider and its successors and permitted assigns, each of which shall be deemed to be a third party beneficiary of this Receivables Purchase Agreement, shall have the benefit of and be entitled to enforce this Receivables Purchase Agreement against the Seller.
Representations and Warranties
(a) The Receivable information communicated to the Platform or otherwise contained in the Request or otherwise delivered in connection with such Purchase Date is true and correct, including the invoice numbers and the unpaid amounts due in respect of all Purchased Receivables purchased (or proposed to be purchased, as the case may be) on such Purchase Date (the “Applicable Receivables”). Seller has delivered to Buyer true and correct copies of all the documentation relating to each of the Applicable Receivables requested by Buyer. Neither Seller nor the related Account Debtor is in default in the performance of any of the provisions of the documentation applicable to its transactions included within the Applicable Receivables.
(b) Each Applicable Receivable is an Eligible Receivable.
(c) Seller is the legal and beneficial owner of each Applicable Receivable free and clear of any lien, encumbrance, security interest or deemed trust; upon each purchase of an Applicable Receivable, Buyer shall acquire valid ownership of such Applicable Receivable and the Collections with respect thereto prior in right to all other Persons.
(d) The Purchase Price for each Purchased Receivable represents the fair value thereof.
(e) Seller is duly organized, validly existing and (to the extent applicable) in good standing under the laws of its jurisdiction of organization, and is duly qualified to do business, and (to the extent applicable) is in good standing, in every jurisdiction where the nature of its business requires it to be so qualified, and has and holds all corporate power and all governmental licences, authorisations, consents and approvals required to carry on its business in each jurisdiction in which its business is conducted.
(f) The execution, delivery and performance by Seller of this Receivables Purchase Agreement, any Request and the other documents to be delivered by Seller hereunder, (i) are within Seller’s corporate powers, (ii) have been duly authorized by all necessary corporate action, and (iii) do not contravene (1) Seller’s constitutional documents, (2) any law, rule or regulation applicable to Seller, (3) any contractual restriction binding on or affecting Seller or its property, or (4) any order, writ, judgment, award, injunction or decree binding on or affecting Seller or its property. This Receivables Purchase Agreement has been duly executed and delivered (or otherwise validly entered into) by Seller.
(g) No authorisation or approval or other action by, and no notice to or filing with, any governmental entity, and no consent of any governmental authority or other third party, is required for the due execution, delivery and performance by Seller of this Receivables Purchase Agreement or any other document to be delivered thereunder, except for the filings or notices as may be necessary to perfect the ownership interest transferred to Buyer pursuant to this Receivables Purchase Agreement.
(h) This Receivables Purchase Agreement constitutes the legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, except as limited by bankruptcy, insolvency, moratorium, fraudulent conveyance or other laws relating to the enforcement of creditors’ rights generally and general principles of equity (regardless of whether enforcement is sought at equity or law).
(i) There is no pending or, to its knowledge, threatened action, proceeding, investigation or injunction, writ or restraining order affecting Seller, or any of its properties, before any court, governmental entity or arbitrator which could reasonably be expected to result in a Material Adverse Change, and Seller is not in default with respect to any order of any court, arbitrator or governmental body. Seller is not currently the subject of, and has no present intention of commencing, an insolvency proceeding or petition in bankruptcy.
(j) Except as disclosed to Buyer, Seller has not changed the location of its jurisdiction of organisation, principal place of business or chief executive office in the last five years. The principal place of business and chief executive office of Seller and the offices where it keeps all of its records are located at the business address notified by Seller to the Buyer (which may be via the Platform) or such other locations of which the Buyer has been notified in writing
(k) There exists no event which has or is reasonably likely to have a Material Adverse Change.
(l) No information at any time furnished in writing (including in electronic form) by Seller to the Platform or to the Buyer for purposes of or in connection with any Transaction Document or any transaction contemplated hereby or thereby, including in connection with the purchase by Buyer of the Applicable Receivables (i) is inaccurate in any material respect as of the date it was furnished or (except as otherwise disclosed to Buyer in writing at or prior to such time) as of the date as of which such information is dated or certified, or (ii) contains any material misstatement of fact or omits to state any material fact necessary to make such information not materially misleading.
(m) Seller has complied in all respects with all applicable laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards to which it may be subject (including any trade, economic or financial sanctions or other laws, regulations, embargoes or restrictive measures administered by a Sanctions Authority or applicable anti-money laundering rules and regulations), except where the failure to so comply could not reasonably be expected to have a Material Adverse Change. Each Purchased Receivable sold by Seller to Buyer, together with the Related Rights related thereto, does not contravene any laws, rules or regulations applicable thereto (including any trade, economic or financial sanctions or other laws, regulations, embargoes or restrictive measures administered by a Sanctions Authority), and no part of such Related Rights is in violation of such law, rule or regulation, except, in each case, where such contravention or violation could not reasonably be expected to have a Material Adverse Change.
(n) Under the laws of Seller’s jurisdiction it is not necessary that the Transaction Documents be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp, registration, notarial or similar Taxes or fees be paid on or in relation to the Transaction Documents or the transactions contemplated by the Transaction Documents.
(o) For the purposes of Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings (recast) (the “Regulation”), where Seller is incorporated or organized in a European Union Member State (as that term is defined in the Regulation), Seller’s centre of main interest (as that term is used in Article 3(1) of the Regulation) is situated in its jurisdiction of incorporation or organization and it has no “establishment” (as that term is used in Article 2(10) of the Regulation) in any other jurisdiction.
(p) Seller has complied with all Data Protection Legislation applicable to it. Seller has made and will make, obtain and maintain such notices, registrations and consents and has taken and will take such other steps as are required for the purposes of any Data Protection Legislation applicable to it in order to permit the disclosure of the Account Debtor Personal Data to Buyer and the processing of the Account Debtor Personal Data by Buyer in the manner described in this Receivables Purchase Agreement.
(q) The Service Terms and Conditions constitute the legal, valid and binding obligations of Seller, enforceable against Seller in accordance with its terms.
Until the later of the termination of this Agreement and the Final Collection Date, Seller promises and agrees as follows:
(r) Corporate Existence. It will comply in all material respects with all material applicable laws, rules, regulations and orders and preserve and maintain its corporate existence, rights, franchises, qualifications, and privileges. It will keep its current jurisdiction of organization, principal place of business and chief executive office and the office where it keeps its records concerning the Purchased Receivables at the business address notified to the Platform or, upon 30 days’ prior written notice to Buyer, at any other locations in jurisdictions where all actions reasonably requested by Buyer or otherwise necessary to protect, perfect and maintain Buyer’s ownership interest in the Purchased Receivables have been taken and completed. It will notify Buyer of any proposed changes to its name, jurisdiction of organization or its structure at least 30 days prior to any such change.
(s) Books and Records. It will keep its books and accounts in accordance with the applicable accounting principles and shall make a notation on its books and records, including any computer files, to indicate which Receivables have been sold to Buyer. It shall maintain and implement administrative and operating procedures (including an ability to recreate records evidencing all Purchased Receivables and related contracts in the event of the destruction of the originals thereof), and keep and maintain all documents, books, records and other information reasonably necessary or advisable for collecting all Purchased Receivables (including records adequate to permit the daily identification of each Purchased Receivable and all collections of and adjustments to each existing Purchased Receivable).
(t) Sales, Security Interests and Debt. It will not sell, assign (by operation of law or otherwise) or otherwise dispose of, or create or suffer to exist any lien, encumbrance, security interest or deemed trust upon or with respect to, the Purchased Receivables or upon or with respect to any account to which any collections of any Purchased Receivable are sent, or assign any right to receive income in respect thereof other than pursuant to this Receivables Purchase Agreement.
(u) Extension or Amendment of Receivables. It will not amend or extend the payment terms under any Purchased Receivables, unless approved in advance by Buyer, and shall not otherwise waive or permit or agree to any deviation from the terms or conditions of any Purchased Receivable except in accordance with prior and prudent business practices and its credit and collection policies.
(v) Audits and Visits. It will, at any time and from time to time during regular business hours as requested by Buyer, permit Buyer, or its agents, delegates or representatives, upon reasonable notice, (i) on a confidential basis, to examine and make copies of and abstracts from all books, records and documents (including computer tapes and disks) in its possession or under its control relating to the Purchased Receivables including the related contracts, and (ii) to visit its offices and properties for the purpose of examining and auditing such materials described in clause (i) above, and to discuss matters relating to the Purchased Receivables or its performance hereunder or under the related contracts with any of its officers or employees having knowledge of such matters; provided that it shall not, unless a breach or default or Material Adverse Change shall have occurred and remain continuing hereunder (in which case no such limit shall apply), be responsible for the costs and expenses of more than one such examination or visit during any calendar year.
(w) Document Delivery. Upon written request of Buyer, it will promptly deliver to Buyer copies of all documents and records (including but not limited to all invoices, data files, bills from Seller to the applicable Account Debtor and any related supporting claim documents) with respect to any Purchased Receivable.
(x) Reporting Requirements. It will provide to Buyer the following:
(i) if requested by Buyer, as soon as available and in any event within 60 days after the end of each of the first three quarters of each financial year of Seller, consolidated balance sheets of Seller and its subsidiaries as of the end of such quarter and consolidated statements of income, cash flows and shareholders equity of Seller and its subsidiaries for the period commencing at the beginning of the current financial year and ending with the end of such quarter, certified by the chief financial officer of Seller;
(ii) if requested by Buyer, as soon as available and in any event within 120 days after the end of each financial year of Seller, a copy of the audited consolidated financial statements (together with explanatory notes thereon) and the auditor’s report letter for such year for Seller and its consolidated subsidiaries, containing financial statements for such year audited by independent public accountants of recognized standing;
(iii) at least ten (10) Business Days prior to any change in Seller’s name or jurisdiction of organization, a notice setting forth the new name or jurisdiction of organization, as applicable, and the proposed effective date thereof;
(iv) promptly (and in no event later than one (1) Business Day following actual knowledge or receipt thereof), written notice in reasonable detail, of any Dilution or of any lien, encumbrance, security interest or deemed trust or Dispute or lien asserted or claim made against a Purchased Receivable or any credit memoranda issue relating to any Purchased Receivable;
(v) as soon as possible and in any event within two (2) days after becoming aware of the occurrence thereof, written notice of any matter that could reasonably be expected to result in a Material Adverse Change;
(vi) immediately (and in no event later than one (1) Business Day following actual knowledge or receipt thereof), provide written notice in reasonable detail, if any Purchased Receivable ceases to be an Eligible Receivable or if Seller reasonably believes any Purchased Receivable is no longer an Eligible Receivable; and
(vii) promptly after acquiring actual knowledge of the occurrence thereof, provide written notice in reasonable detail of any Insolvency Event with respect to any Account Debtor, or any event which results or could likely result in a material adverse change in the business, conditions (financial or otherwise), operations, performance or properties of any such Account Debtor.
(y) Further Instruments. It will, at its expense, promptly execute and deliver all further instruments and documents, and take all further action that Buyer may reasonably request, from time to time, in order to perfect, protect or more fully evidence the full and complete ownership interest of Buyer in the Purchased Receivables, or to enable Buyer to exercise or enforce the rights of Buyer hereunder or under the Purchased Receivables.
(z) Taxes. Subject to Section 6(c) hereto, it will pay any and all Taxes relating to the transactions contemplated under the Transaction Documents, including but not limited to the sale, transfer and assignment of each Purchased Receivable; except for those Taxes that it is contesting in good faith and for which adequate reserves have been taken.
(aa) Perform Terms. It will duly perform and comply in all material respects with all terms under each contract relating to the Purchased Receivables and promptly inform Buyer of any material breach or default by Seller or any Account Debtor of any of the terms thereof.
(bb)Not Adversely Affect Buyer’s Rights. It will refrain from any act or omission which might in any way prejudice or limit Buyer’s rights under any of the Purchased Receivables or any Transaction Document.
(cc) Disclosures. It will promptly disclose to the public such information as required pursuant to the laws of any jurisdiction to which it is subject, including (i) the net effect of this Receivables sale transaction on its financial condition, (ii) the nature, amount and term of the material financial obligations incurred hereunder, and (iii) a description of events that may cause such an obligation to arise, increase or become accelerated.
(dd) Service Terms and Conditions. It has communicated its acceptance of the Service Terms and Conditions to the Platform in accordance with the provisions of the Service Terms and Conditions and has not revoked or repudiated such terms and conditions.