AccountTransferandPurchaseAgreement帐款转让及购买协定.doc
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Account Transfer and Purchase Agreement帐款转让及购买合同-This Account Transfer and Purchase Agreement (this Agreement ) is dated _________,_________,_________(M,D,Y), and is between AAA, Inc., a _________(PLACENAME) corporation authorized to do business in _________(PLACENAME) and doing business as BCI/AAA Acceptance Corporation ( AAA ), and BBB, INC., a _________(PLACENAME) corporation, and CCC, INC., a _________(PLACENAME) corporation (collectively, Seller ). This Agreement shall become effective as of the day it is accepted in the State of _________(PLACENAME) by AAA as indicated at the end hereof by the date and signature on behalf of AAA.WHEREAS, AAA is in the business of purchasing accounts receivable ( accounts andWHEREAS, Seller desires, from time to time during the term of this Agreement, to sell accounts to AAA; andWHEREAS, the parties hereto desire to enter into this Agreement to govern the purchase and sale of accounts;NOW THEREFORE, in consideration of the premises, the mutual agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:1. OFFER OF ACCOUNTS. At its election from time to time during the term of this Agreement, Seller agrees to offer for sale to AAA certain of its accounts arising out of sales of goods, or services rendered, by Seller, and to sell to AAA on the terms set forth in this Agreement such of the offered accounts as AAA may accept for purchase in the State of _________(PLACENAME). AAA shall have the absolute right in its sole discretion to reject any or all offered accounts, whether or not AAA has previously purchased accounts of any particular account debtor hereunder. The parties agree that, without the prior consent of AAA, the maximum Gross Amount (as defined below) of accounts that AAA may purchase hereunder at any time, together with the Gross Amount of accounts previously purchased by AAA from Seller hereunder which then remain outstanding, will not exceed FIVE MILLION AND NO/_________ DOLLARS ($,_________) (the Facility Amount provided, however, until completion of the field audit provided in Section 10 below, the Facility Amount shall be limited to $,_________. AAA’s consent to purchase account s in excess of suchamount may be evidenced by AAA’s acceptance for purchase of such offered accounts.2. PURCHASE AND SALE OF ACCOUNTS. Each account purchased by AAA hereunder shall be purchased by AAA without recourse against Seller. All losses incurred by AAA from the financial inability of the applicable account debtor to pay such account over and above any and all Residual Payments (as hereinafter defined) and Reserve (as hereinafter defined) amounts offset shall be borne solely by AAA; provided, however, that nothing in this Agreement shall be construed to relieve Seller from liability for any breach by Seller of any representation, warranty or agreement of Seller contained herein. Notwithstanding any provision in this Agreement to the contrary, it is contemplated by and the intention of the parties hereto that accounts of Seller may be considered and purchased as one account (herein a batch ) and the terms account and accounts as used herein may also refer to and mean a batch or batches, as the case may be. In connection with each offer of accounts to AAA, Seller agrees to deliver to AAA a written assignment of such accounts, together with a copy of all invoices relating to such accounts, and evidence of delivery of the related goods or performance of the related services (and, if requested, the original purchase orders from the applicable customers), all in a form satisfactory to AAA. In order for an account to be eligible for purchase by AAA, the related invoice must set forth, as the soleaddress for payment, the following post of lice box:_________( Authorized Remittance Address ) (or, upon notice from AAA, another post of lice box of AAA) and, in the case of payments to be effected by wire transfer or other electronic means, the related invoice must set forth, as the sole bank account for such payment, a bank account of AAA (or a third party designated by AAA) designated by AAA from time to time (except in each case as otherwise agreed in writing by AAA). AAA’s acceptance for purchase of offered a ccounts shall be evidenced by AAA’s tendering of the Initial Payment (as hereinafter defined) to Seller or otherwise delivering to Seller a schedule of accounts accepted for purchase by AAA. Seller’s transference of offered accounts shall not tee effective as to any accounts not accepted for purchase by AAA. Seller hereby sells, transfers, assigns and otherwise conveys to AAA (as a sale by Seller and a purchase by AAA, and not as security for any indebtedness or other obligation of Seller to AAA) all right, title and interest of Seller in and to all accounts accepted by AAA for purchase hereunder, together with all related rights (but not obligations) of Seller with respect thereto, including all contract rights, guarantees, letters of credit, liens in favor of Seller, insurance and other agreements and arrangements of whatever character from time to time supporting or securing payment of such accounts and all right, title and interest of Seller in any related goods, including Seller’s rights and remedies und er Article 2, Part 7 of the applicable Uniform Commercial Code ( UCC ). The foregoing sale, transfer, assignment and conveyance does not constitute and is not intendedto result in an assumption by AAA of any obligation of Seller or any other person in connection with the accounts or related rights or under any agreement or instrument relating thereto. Seller agrees to execute and deliver such bills of sale, assignments, letters of credit, notices of assignment, financing statements (including continuation statements) under the applicable UCC and other documents, and make such entries and markings in its books and records, and to take all such other actions (including the negotiation, assignment or transfer of negotiable documents, letters of credit or other instruments) as AAA may request to further evidence or protect the sales and assignments of accounts and related rights to AAA hereunder, as well as AAA’s interest in any returned goods referred to in Section 7 hereof.3. TERMS OF ACCOUNTS. Except as otherwise may be agreed to in writing by AAA from time to time, the terms of sale offered by Seller to its account debtors with respect to all accounts offered to AAA for purchase hereunder shall be NET 30 DAYS. After an account has been purchased by AAA, Seller shall not have the right to vary the terms of sale set forth in the invoice relating to such account, or any other aspect of the account, except in Seller’s capacity as agent for AAA for purposes of collection of accounts purchased by AAA as set forth in Section 8 hereof, and then only with the prior written consent of AAA.4. PURCHASE PRICE. The purchase price for each account purchased hereunder shall consist of and be paid by the Initial Payment and the Residual Payment. The Initial Payment shall be payable by AAAto Seller on the business day that AAA accepts for purchase the related account, and the Residual Payment shall be payable by AAA to Seller within five business days after AAA receives and deposits the proceeds of collection for the subject account in an amount equal to the Net Amount (as hereinafter defined) of such account (subject to AAA’s right to withhold payment of Residual Payments hereunder, and subject to AAA’s right to withhold, offset and charge, each as described below). Initial Payment means EIGHTY-FIVE PERCENT (85%) of the Gross Amount of an account, provided that the field audit provided in Section 10 below indicates dilution does not exceed five percent (5%) and each invoice submitted should have a balance of not less than $500.00 each. Gross Amount of an account means the gross face amount payable pursuant to the related invoice. Net Amount of an account means the Gross Amount of such account, less all permitted discounts, deductions and allowances. Residual Payment with respect to an account means the aggregate amount collected with respect to such account, less the sum of (i) the Initial Payment with respect to such account, (ii) the AAA Discounts (as hereinafter defined), (iii) any and all attorneys’ fees and other cost s of collection.5. FIXED AND V ARIABLE DISCOUNTS. Fixed Discount means a discount of TWO PERCENT (2.0%) of the Gross amount of such account. Variable Discount means a discount computed on the Initial Payment and accruing on the basis of actual days elapsed from the date of Initial Payment until and including three (3) business days after AAA receives and deposits the proceeds of collection of such account at a per annum rate equal to AAA’s Base Rate (as hereinafter defined) in effect on the date of purchase of such account plus TWO PERCENT (2.0%) per annum; provided, however, in no event shall the Variable Discount with respect to any account purchased hereunder be less than seven percent (7.0%) per annum. Base Rate means that per annum variable rate (expressed as a per annum percentage based on a year consisting of 360 days) determined from time to time by AAA without notice to Seller as AAA’s Base Rate for purposes of calculating variable discounts under AAA’s account transfer agreements. The Fixed Disc ount and the Variable Discount shall be collectively referred to herein as the AAA Discounts . The AAA Discounts may be subject to one or more adjustments during the term of this Agreement if a Performance Based Pricing Addendum is attached hereto. Notwithstanding the foregoing, the minimum AAA Discount on each account purchased hereunder shall be $,_________.6. Reserve. In the event that AAA believes Seller has breachedany material representation, warranty, covenant or agreement contained herein (including, without limitation, in the event an account purchased by AAA becomes a Disputed Account as hereinafter defined), any account is not paid in full within 90 days from the date of purchase of such account, or AAA deems itself insecure hereunder, AAA may at its election, withhold and accumulate the payment of the Residual Payments ( Reserve ) with respect to any or all accounts purchased hereunder to the extent necessary to maintain a Reserve in an amount up to the sum of (a) the total Initial Payments made by AAA with respect to accounts purchased by AAA hereunder which remain uncollected, plus (b) the total of the AAA Discounts with respect to such accounts and (c) such other amounts which may become due by Seller to AAA hereunder or under any other agreement. Seller hereby authorizes AAA to offset and charge any and all amounts for which Seller or the Reserve may be obligated to pay to AAA pursuant to the terms of this Agreement against the Reserve, and at AAA’s election, against any funds of Seller in the possession or control of AAA, from whatever source. However, if, on any business day that AAA regularly makes a payment to Seller for accounts purchased, none of the foregoing conditions exists and no other breach of this Agreement by Seller exists, then AAA shall distribute to Seller the Residual Payments then due and all funds it then has on hand that it has collected from accounts that AAA has not then purchased.7. Certain Security. the purpose of securing AAA (a) in the payment of any and all sums of money that may become due and owing AAA from Seller by reason of this Agreement, (b) in the performance by Seller of Seller’s obligations hereunder, and under any other agreement, contract, document, note or other instrument in favor of AAA or its assignees and (c) in the performance of all the obligations of all Affiliates (as hereinafter defined) under each Affiliate’s agreements, contracts, documents, notes or other instruments in favor of AAA or its assigns, Seller hereby grants to AAA a securit y interest in (i) all of Seller’s present and future accounts and proceeds (including accounts but excluding cash) created from the sale by the Seller of inventory, contract rights, documents, instruments, chattel paper, general intangibles and all products and proceeds therefrom, including all resumed or repossessed goods, as well as all books and records pertaining to all of the foregoing, (ii) all amounts due as Residual Payments or withheld by AAA as the Reserve pursuant to Section 6 hereof, and (id) all money and other funds of Seller now or hereafter in the possession, custody or control of AAA, from whatever source. The term Affiliate shall mean with respect to any person or entity in question, any other person or entity owned or controlled by, or which owns or controls or is under common control or is otherwise affiliated with such person or entity in question. Seller agrees to execute and deliver such financing statements under the applicable UCC and other documents, and make such entries and markings in its books and records and to take all such other actions, as AAA mayrequest to further evidence, perfect, preserve or protect the security interest granted to AAA hereunder. AAA shall have all rights and remedies in respect of the lien and security interest herein granted as are provided in this Agreement, the UCC and other applicable law, including the right at any time, before or after any default by Seller of any of its obligations hereunder, to notify account debtors and obligors on instruments to make payment to AAA (or its designee) and to take control of proceeds to which AAA is entitled, and to apply proceeds to (in addition to other obligations of Seller to AAA) the reasonable attorneys’ fees and legal expenses incurred by AAA in connection with the disposition of collateral or the other exercise of rights and remedies by AAA. Seller herein acknowledges and warrants to AAA that it has received and will receive, direct and indirect benefits by and from granting this security interest to AAA to secure the obligations of any Affiliate to AAA. In the event a security interest has heretofore been granted and given to AAA by Seller in a prior agreement(s) or document(s) to secure certain obligations, then, in such event, and notwithstanding anything in this Agreement to the contrary, including Section 23 hereof, the lien and security interest herein granted and given to AAA is in renewal and extension, and not in extinguishment of, all such prior liens and security interests and are valid and subsisting liens and security interests to secure all prior, existing and new obligations of Seller to AAA hereunder and under any such prior agreements, which obligations are likewise herein renewed and extended, in any manner, including any action required in connection with or by virtue of theUnited States Bankruptcy Code (the Bankruptcy Code ).8. SERVICING. AAA hereby appoints Seller as servicing agent for AAA ( Servicer ) for the purpose of expediting the payment of accounts purchased by AAA hereunder which become past due. Servicer agrees to maintain an active, on-going and regular dialogue with each Account Debtor. Servicer further agrees to utilize all powers, influences and rights and take every action within its control in accordance with its customary practices and applicable law to expedite the collection of the accounts purchased by AAA which become past due and direct such payments in specie exclusively to the Authorized Remittance Address. Seller will furnish to AAA, upon request, any and all papers, documents and records in its possession or control related to accounts purchased by AAA hereunder, or related to Seller’s business relationship with the respective account debtors, and agrees to cooperate fully with AAA in all matters related to collection of accounts purchased by AAA hereunder. AAA reserves the right to terminate such servicing relationship at any time with or without cause and without notice to Servicer. Seller authorizes AAA to forward directly to account debtors statements or invoices on accounts purchased by AAA hereunder, and to request payment at such address or to such bank account as may be designated by AAA. Seller agrees that, if any payment is made to Seller on any account purchased by AAA from Seller hereunder, Seller (i) will hold such payment in trust for AAA,(ii) will not commingle such payment with any funds of Seller, and (iii) will deliver such payment to AAA, in the exact form received, by the close of business on the next business day following receipt thereof by Seller. If any goods relating to an account purchased by AAA hereunder shall be returned to or repossessed by Seller, Seller shall give prompt notice thereof to AAA and shall hold such goods in trust for AAA, separate and apart from Seller’s own property, and such goods shall be owned solely by AAA and be subject to AAA’s direction and control. Seller shall properly store and protect such goods and agrees to cooperate fully with AAA in any subsequent disposition thereof for the benefit of AAA. Seller authorizes AAA to collect, sue for and give releases for in the name of Seller or AAA in AAA’s sole discretion, all amounts due on accounts sold to AAA hereunder. Seller specifically authorizes AAA to endorse, in the name of Seller, all checks, drafts, trade acceptances or other forms of payment tendered by account debtors in payment of accounts sold to AAA hereunder and made payable to Seller. AAA shall have no liability to Seller for any mistake in the application of any payment received with respect to any accoun t, IT BERG SPECIFIC ‘TENT OF THE PARTIES HERETO THAT AAA SHALL HA VE NO LIABILITY HEREUNDER FOR ITS OWN NEGLIGENCE except for its own gross negligence or willful misconduct. Seller hereby waives notice of nonpayment of any account sold to AAA hereunder as well as any and all other notices with respect to such accounts, demands or presentations for payment, and agrees that AAA may extend or renew from time to time the payment of, or vary or reducethe amount payable under or compromise any of the terms of, any account purchased by AAA, in each case without notice to or the consent of Seller. Seller further authorizes AAA (or its designee) to open and remove the contents of any post of lice box of Seller or AAA (or its designee) which AAA believes contains mail relating to accounts, and in connection therewith or otherwise, to receive, open and dispose of mail addressed to Seller which AAA believes may relate to accounts, and in order to further assure receipt by AAA (or its designee) of mail relating to such accounts, to notify other parties including customers and postal authorities to change the address for delivery of such mail addressed to Seller to such address as AAA may designate. AAA agrees to use reasonable measures to preserve the contents of any such mail which does not relate to accounts purchased hereunder and to deliver same to Seller (or, at the emotion of AAA, to notify Seller of the address where Seller may take possession of such contents; provided, if Seller does not take possession of such contents within 30 days after notice from AAA to take possession thereof, AAA may dispose of such contents without any liability to Seller). Seller hereby irrevocably appoints AAA (and any employee, agent or other person designated by AAA, any of whom may act without joinder of the others) as Seller’s attorneys-in-fact and agents, in Seller’s name, place and stead, to take all actions, execute and deliver all notices, negotiate such instruments and other documents, as may be necessary or advisable to permit AAA (or its designee) to take any and all of the actions described in this paragraph or to carry out the purpose and intentthereof, as fully and for all intents and purposes as Seller could itself do, and hereby ratifies and consigns all that said attorneys-in-fact and agents may do or cause to be done by virtue hereof. This power of attorney is irrevocable and deemed coupled with an interest.9. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby represents and warrants to AAA with respect to each account offered by Seller to AAA hereunder that (i) Seller is the sole owner of such account, which account is free and clear of any liens, claims, equities or encumbrances whatsoever, and upon each purchase by AAA of such account, AAA will own such account free and clear of any liens, claims, equities or encumbrances whatsoever and the consideration received by Seller from AAA for such account is fair and adequate, (ii) Seller is the sole obligee under such account, and has full power and is duly authorized to sell, assign and transfer such account to AAA hereunder, and unless otherwise agreed by AAA, the date of sale of such account is not more than 30 days after the date of the original invoice relating to such account, (iii) Seller has no knowledge of any fact which would lead it to expect that, at the date of sale of such account to AAA, such account will not be paid in the full stated amount when due, (iv) such account arises out of a bona fide sale of conforming goods or the bona fide rendition of services by Seller, and all underlying goods have been delivered to the account debtor, or all underlying services have been rendered by Seller, in complete fulfillment of all of the terms and conditions of afully executed, delivered and unexpired contract with the account debtor, and the account debtor has accepted the goods or services to which the account relates, (v) such account is denominated and payable only in United States dollars and constitutes the legal, valid and binding payment obligation of the account debtor, enforceable in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally), (vi) suc h account is current and not past due as of the date of purchase by AAA, has not been paid by or on behalf of the account debtor in whole or in part, and is not and will not tee subject to any dispute, recision, set-off, recoupment, defense or claim by the account debtor, whether relating to price, quality, quantity, workmanship, delay in delivery, set off, counterclaim or otherwise, and the account debtor has not and will not claim any defense of any kind or character (other than bankruptcy or insolvency arising after the date of sale of such account to AAA hereunder) against payment of such account, and (vii) as of the date of purchase by AAA of such account, the account debtor with respect to such account is located (within the meaning of Section 9-103 of the applicable UCC) and has its principal executive offices within the United States, unless such account is back by trade credit insurance or pre-approved by AAA. Seller further represents and warrants to AAA that (a) the execution, delivery and performance of this Agreement by Seller have been duly authorized and this Agreement constitutes the legal, valid and binding obligation ofSeller, enforceable against Seller in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally), (b) Seller is not a debtor in any bankruptcy proceedings, insolvent, undergoing composition or adjustment of debts or unable to make payment of its obligations when due and no petition in bankruptcy has been filed by or against Seller or any Affiliate, nor has Seller or any Affiliate filed any petition seeking an adjustment of its debts or for any other relief under the Bankruptcy Code, and no application for appointment of a receiver or trustee for all or a substantial part of the property of Seller or any Affiliate is pending, nor has Seller or any Affiliate made any assignment for the benefit of creditors, (c) Seller is not in default of any debt or obligation to AAA, any other lender or other creditor, and (d) Seller’s principal place of business, chief executive of lice, the location where all records concerning its books of account and contract rights are kept, and (except any additional locations listed on Schedule A attached hereto) the sole location of any property subject to the security interest granted herein is its Address for Notices set forth on the signature page hereon. Seller agrees not to change the location of its principal place of business or chief executive of lice, the location where its records concerning its books of account or contract rights are kept, or the location of any property subject to the security interest granted herein, without giving at least 15 days advance written notice thereof to AAA pursuant to Section 19 herein. Seller does business under notrade or assumed names except as may be listed on Schedule A attached hereto. Each representation and warranty of Seller contained in this Agreement shall be deemed to be made at and as of the date hereof and at and as of the date of each sale of accounts to AAA hereunder. Seller agrees to indemnify and hold all Indemnified Persons (as hereinafter defined) harmless against any breach by Seller of any representation, warranty or agreement of Seller contained in this Agreement, and against any claims or damages arising out of the manufacture, sale, possession or use of, or otherwise relating to, goods, or the performance of services, associated with or relating to accounts or related rights purchased (or with respect to which a security interest is granted) hereunder. The term Indemnified Persons shall mean AAA and its officers, directors, shareholders, employees, attorneys, representatives, agents, Affiliates, successors and assigns. Seller agrees to notify AAA immediately of any breach by Seller of any representation, warranty or agreement of Seller contained herein or should any representation, warranty or agreement made herein become untrue or false at any time. Seller further agrees to notify AAA immediately of the assertion by any account debtor of any dispute or other claim (including any defense or offset asserted by any account debtor) with respect to any account sold to AAA hereunder, or with respect to any related goods or services ( Disputed Accounts ). Upon AAA’s request, Seller agrees to settle, at its own expense and for the benefit of AAA, all such Disputed Accounts; provided, that any such settlement shall be made only with the prior written consent of AAA.Unless AAA is advised in writing by Seller to the contrary, any account that has not been approved by the account debtor within sixty (60) days from the date of the invoice upon which the account is based, shall be deemed to be a Disputed Account. As to any Disputed Account, AAA shall have the right, in its sole discretion, (i) to settle at the expense of Seller (including all attorneys’ fees and expenses of AAA) and for the benefit of AAA any such dispute or claim upon such terms as AAA may in its sole discretion deem advisable or (ii) to assign the related account to Seller, without recourse to AAA, and charge any unpaid balance with respect thereto (up to the amount of the Initial Payment with respect thereto and AAA’s Discounts through t he date of such charge with respect thereto) against the Reserve or deduct such unpaid balance from any Initial Payments or against any money or other funds of Seller in the possession, custody or control of AAA, from whatever source. Seller agrees that, in lieu of AAA charging any such unpaid balance against the Reserve, Initial Payments or against such other funds, AAA may require Seller to pay (and Seller hereby agrees to pay) to AAA on demand any such unpaid balance. An account with respect to which the account debtor has asserted an Insolvency Claim is not a Disputed Account. As used herein, Insolvency Claim means any defense or other claim by an account debtor with respect to an account sold to AAA hereunder arising solely out of the bankruptcy or insolvency of the account debtor or the financial inability of the account debtor to pay, if Seller has not breached its representation contained in clause (vi) of the first paragraph of this Section.。
