This Viably Growth Receivables Master Purchase Agreement (this “Agreement”) governs one or more transactions (each a “Transaction”) that are or will be entered into by the parties and that are or will be governed by this Agreement and the relevant Appendix.  This Agreement is entered into by and between you, as seller (“Seller”) and Viably Capital Inc., as buyer (“Viably” or “Buyer”, and together with Seller, the parties) and is a legally binding contract between you and Viably regarding the Transactions.  As used in this Agreement, “you” refers to the Company that has opened an Account on the Viably Banking platform and the Account Owner.  

BY CLICKING “I ACCEPT” YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO ENTERING INTO TRANSACTIONS, YOU AGREE TO BE BOUND BY, THIS AGREEMENT, WHICH INCLUDES THE USER TERMS, the VIABLY ACCOUNT AGREEMENT and VIABLY’S PRIVACY POLICY (available at:  https://www.runviably.com/privacy-policy/).  In the event of a conflict between the terms of the User Terms, the Viably Account Agreement or Privacy Policy, this Agreement shall govern with respect to the subject matter of such conflicting terms.  Capitalized terms not defined herein shall have the meaning ascribed to them in the above referenced agreements.

Accordingly, the parties agree as follows:

1. True Sale.

    1. It is the intent of the parties that each purchase and sale of Purchased Receivables hereunder is and shall be a true sale of such Purchased Receivables for all purposes and not a loan, pledge for security or any other lending arrangement, and the parties will not take or assert positions which are inconsistent with such treatment. Buyer does not charge any origination or broker fees for Seller selling its Receivables or Future Receivables to Buyer, nor does Buyer charge any interest or finance charges.  Each such sale shall be, subject to the terms hereof, absolute and irrevocable, providing Buyer with the full risks and benefits of ownership of the Purchased Receivables (such that the Purchased Receivables and any proceeds thereof would not be property of the Seller’s estate in the event of the Seller’s bankruptcy).  Seller shall record the Purchased Receivables as property of Buyer in Seller’s books and records.  Once purchased hereunder, Buyer shall have the right to sell, assign, transfer, pledge, or otherwise dispose of the Purchased Receivables or any portion thereof without notice to or consent from Seller.
    2. As a precautionary measure, in the event that it were to be determined that the transactions evidenced hereby constitute a lending transaction and not a purchase and sale, then (i) this Agreement shall constitute a security agreement under applicable law, and (ii) Seller shall be deemed to have hereby granted Buyer a first priority perfected security interest in and to all of Seller’s right, title, and interest, whether now owned or hereafter acquired, in, to, and under the Collateral to secure the payment to Buyer of all amounts owing under or with respect to such Purchased Receivables and all other obligations of Seller hereunder.  For these purposes, “Collateral” means, (i) all now existing and hereafter arising accounts, including but not limited to any and all Receivables and Future Receivables and (ii) all of Seller’s chattel paper, documents, equipment, general intangibles, instruments, investment property, goods and inventory (as these terms are defined in Article 9 of the Uniform Commercial Code of any applicable state (the “UCC”), both now owned and hereafter acquired, and the proceeds of all of the foregoing, together with all furniture, fixtures, and all rights in returned goods; land and real property interests, including leasehold interests, credits arising hereunder in favor of Seller; guarantees, supporting obligations and letter of credit rights with respect to the foregoing; insurance policies, and books and records, both now owned and hereafter acquired, and the proceeds of all of the foregoing.  
    3. Seller consents to Buyer’s preparation and filing of all instruments and documents that Buyer determines are reasonably necessary to perfect Buyer’s rights with respect to the Purchased Receivables including, without limitation, appropriate UCC financing statements, including financing statements describing the Collateral as “all assets” or “all personal property” or words of like meaning, to evidence, maintain and perfect its interest in the Collateral. The financing statement filing authorized by Seller hereunder also shall constitute evidence of and shall perfect Seller’s sale to Buyer of the Purchased Receivables

2. Power of Attorney.  

(a) Seller does hereby irrevocably appoint Buyer and its successors and assigns as Seller’s true and lawful agent and attorney-in-fact with full authority to take any action or execute any instrument or document to collect all Receivables or Future Receivables, including, without limitation: (i) to sell, assign, transfer, pledge, compromise, or discharge the whole or any part of the Purchased Receivables; (ii) to demand, collect, receive, and sue for the monies due or which may become due upon or with respect to the Purchased Receivables and to compromise, prosecute, or defend any action, claim, case or proceeding relating to the Purchased Receivables, including the filing of a claim or the voting of such claims in any bankruptcy case, all in Buyer’s name or Seller’s name, as Buyer may choose; (iii) to prepare, file, and sign Seller’s name on any notice, claim, assignment, demand, draft, or notice of or satisfaction of lien or similar document with respect to Purchased Receivables; (iv) to notify all customers of Seller and any Marketplace with respect to the Purchased Receivables to pay Buyer directly; (v) to receive, open, and dispose of all mail addressed to Seller for the purpose of collecting the Purchased Receivables; (vi) to endorse Seller’s name on any checks or other forms of payment on the Purchased Receivables; (vii) to execute on behalf of Seller any and all instruments, documents, financing statements, and the like to perfect Buyer’s interests in the Purchased Receivables; and (viii) to do all acts and things necessary or expedient, in furtherance of any such purposes.

(b) Notwithstanding the foregoing, Buyer covenants and agrees not to exercise its rights to act as agent or attorney-in-fact for Seller (i) unless and until Seller is in Default under this Agreement or (ii) at any time that Buyer has no interest in Receivables or Future Receivables and Seller has no outstanding obligations to Buyer under this Agreement. Each Marketplace may rely on this section as constituting Seller’s written authorization to provide any information requested by Buyer and to make payments to Buyer as aforesaid. Each Marketplace is hereby irrevocably authorized and directed by Seller to follow any instruction of Buyer regarding payment or transfer of funds as instructed by Buyer without inquiry as to Buyer’s right or authority to give such instructions. Seller shall not interfere with Buyer’s instructions to any Marketplace or any Marketplace’s compliance with this Agreement or request any modification to Buyer’s instructions without Buyer’s prior written consent.

3. Representations and Warranties

Seller represents and warrants as follows:

  1. Existence.  Seller is validly existing and in good standing under any applicable laws of its state of organization. Seller has all requisite power and authority to own, lease, pledge and operate its properties and assets and to carry on its business. 
  2. Authority.  Seller has the power and authority to enter into and perform Seller’s duties and obligations under this Agreement. Seller is not a party to any contract or aware of any existing situation that would prevent Seller from entering into this Agreement. Seller has taken all necessary action to authorize execution and delivery of, and performance under, this Agreement.  Seller is solvent and fully authorized to assign and sell the Purchased Receivables hereunder.
  3. Compliance with Law; Agreements.  Seller is in compliance in all respects with applicable laws and regulations and has valid permits, authorizations and licenses to own, operate and lease its properties and to conduct the business in which it is presently engaged.
  4. No Conflicts.  Seller possesses and is in compliance with all permits, licenses, approvals, consents and any other authorizations necessary to conduct its business, and maintains insurance in amounts and against risks as are normal and customary for businesses of its size, nature and character. Seller is in compliance with, and the execution of this Agreement and consummation of the transaction contemplated herein will not conflict with, (i) any and all applicable federal, state and local laws and regulations, (ii) any agreements to which Seller is a party, and (iii) Seller’s articles or certificate of incorporation, bylaws, or other organizational documents. Seller possesses all requisite permits, authorizations and licenses to own, operate and lease its properties and to conduct the business in which it is presently engaged. Seller will promptly pay all necessary taxes, including but not limited to employment, sales and use taxes.
  5. Status of Purchased Receivables.  Seller has not sold and is not subject to any other contract that provides for the sale, assignment, pledge, or any other transfer of any interest in the Purchased Receivables. The Purchased Receivables are and will be bona fide and existing obligations arising out of the ordinary course of Seller’s business.  The Purchased Receivables are and will be owned by Seller free and clear of all claims, charges, liens, restrictions, encumbrances or security interests of any nature whatsoever (other than those arising in favor of Buyer under this Agreement).  
  6. Accuracy of Information.  None of the statements, reports or other information concerning Seller, its business or assets, or the Receivables or Future Receivables furnished by or on behalf of Seller to Buyer, for use in connection with the Transactions contemplated by this Agreement, as of the date such statements, reports or other information were so furnished, contain any untrue statement of a material fact by Seller or omit to state a material fact necessary to make the statements of Seller contained herein or therein not materially misleading.  Seller acknowledges that Buyer has relied and will continue to rely upon the validity, accuracy and completeness of all information (financial and otherwise) provided by or on behalf of Seller in connection with Buyer’s obligations hereunder.
  7. No Proceedings.  There is no action, suit, claim, investigation or legal, administrative, or arbitration proceeding pending or currently threatened against Seller, whether at law or in equity or before any federal, state, local, foreign or other court, governmental department, commission, board, bureau, agency or instrumentality.  

4. Seller Covenants

Seller hereby agrees to comply with each of the covenants set forth in this Section 4 during the term of this Agreement.

  1. No Transfers Seller shall not assign, transfer, sell, grant, or permit any lien or security interest in any interest the Seller may have in any Receivables or Future Receivables to or in favor of any other party, without Buyer’s prior written consent.
  2. Maintenance of Bank Accounts.  Seller shall maintain the Designated Seller Account into which Collections received by Seller in respect of Receivables or Future Receivables will be deposited and shall not change such bank account without Buyer’s prior written consent.  Seller shall provide Buyer and its authorized agents with all information, authorizations, and passwords necessary for verifying Seller’s receivables, receipts, and deposits into the Designated Seller Account and the ACH Payout Account.  Seller authorizes Buyer to contact Seller’s current and prior banking institutions to get information Buyer deems necessary to review and evaluate Seller’s business or to monitor the Designated Seller Account and the ACH Payout Account.
  3. Collections.  Seller shall cause all payments in respect of Receivables or Future Receivables to be made directly to the Designated Seller Account and shall not cause the Receivables or Future Receivables to be paid to any account other than the Designated Seller Account without Buyer’s prior written consent.  Buyer shall direct each Marketplace to send all such Collections solely to the Designated Seller Account.  Seller shall not block Buyer from debiting the Designated Seller Account or ACH Payout Account, or otherwise interfere with Buyer’s ability to collect the Purchased Receivables.
  4. Conduct of Business.  Seller shall maintain its business in substantially the same manner as it existed as of the date of this Agreement and continue to conduct its business in a manner consistent with past practice.  Seller shall not allow any other person to acquire, assume or take over the operation and/or control of Seller’s business or business location, whether physical or virtual.  Seller shall not amend, modify, rescind or revoke or terminate its relationship with any Marketplace.  Seller shall not to change its place of business, legal name, trade name, entity type, or state of formation, domicile or residence from those set forth herein, without the prior written approval of Buyer, and in all events following at least twenty (20) days prior written notice to Buyer of any such change.

5. Seller Defaults.

(a) Each of the following shall constitute a “Seller Default”:

  1. any representation or warranty made by Seller under this Agreement proves to have been false or misleading in any material respect on or as of the date made or deemed made;
  2. Seller assigns, transfers, sells, or grants, or permits any lien or security interest in any interest the Seller may have in any Receivables or Future Receivables to or in favor of any other party, without Buyer’s prior written consent;
  3. Seller fails to cause all payments in respect of Receivables or Future Receivables to be deposited in the Designated Seller Account, terminates the ACH authorization granted pursuant to Section 2(b) of the Appendix without Buyer’s prior written consent, or otherwise blocks or hinders Buyer’s ACH access to the Designated Seller Account or the ACH Payout Account; 
  4. Seller otherwise fails to perform or observe in any material respect any covenant, term, condition, or agreement contained in this Agreement;
  5. Seller (x) commences any case or proceeding seeking relief under any existing or future bankruptcy law or (y) is unable, or admits in writing its inability, to pay its debts as they become due;
  6. there occurs a material change in the beneficial ownership of Seller resulting in a change of control of Seller; 
  7. Seller sells, leases, transfers, or otherwise disposes of all or substantially all of its property or assets, or consolidates with or merges into or with any corporation or other entity; or
  8. Seller disputes in any manner the validity or efficacy of any sale and assignment of the Purchased Receivables to Buyer.


(b)
Without limitation of Buyer’s rights to liquidated damages under clause (c) below, upon the occurrence of a Seller Default, Buyer may by notice to Seller excise all rights and remedies under law (including rights and remedies of a secured party, under the New York UCC) against Seller and/or any of Seller’s customers to enforce Buyer’s rights under this Agreement and with respect to any Purchased Receivables, including by debiting any amounts owing to Buyer hereunder from the Designated Seller Account or, to the extent there are insufficient funds in the Designated Seller Account, from the ACH Payout Account, and  declare this Agreement to be terminated.

(c) Liquidated Damages.  Without limitation of its Default rights in this Section 5 and any other remedy available to Buyer at law or in equity, Seller agrees to pay Buyer damages equal to the uncollected Purchased Amount in the event that Seller breaches any of its covenants under Section 4.

6. Indemnity; Costs.  

(a) In addition to all rights and remedies available to the parties hereto at law or in equity, Seller shall indemnify, defend and hold harmless Buyer (and its respective employees, directors, agents, affiliates and representatives) (collectively, the “Indemnified Persons”) from and against and pay on behalf of or reimburse each such Indemnified Person, as and when incurred, for any and all loss, liability, demand, claim, action, cause of action, cost, damage, deficiency, tax, penalty, fine or expense, whether or not arising out of any claims by or on behalf of such Indemnified Person or any third party, including interest, penalties, reasonable attorneys’ fees and expenses and all amounts paid in investigation, defense or settlement of any of the foregoing (including all reasonable attorneys’ fees and expenses incurred in connection with the enforcement of this Section) (collectively, “Losses”), that any such Indemnified Person may suffer, sustain, incur or become subject to, as a result of, in connection with, relating or incidental to or by virtue of: (i) any misrepresentation or breach of warranty of Seller under this Agreement; (ii) any nonfulfillment, default or breach of any covenant or agreement of Seller in this Agreement; (iii) any failure by Seller to comply with applicable law; (iv) any third party action, suit, claim, investigation or legal, administrative, or arbitration proceeding (including by a customer of Seller or any governmental authority) arising out of or relating to the Purchased Receivables; or (v) the commingling of Collections on Receivables or Future Receivables at any time with other funds of Seller.

  1. Seller shall pay on demand all reasonable costs associated with a breach by Seller of any of its obligations, covenants or any of the representations and warranties of Seller under this Agreement and the enforcement thereof by Buyer, including but not limited to court costs and attorneys’ fees.  For this purpose, “reasonable costs” shall include the costs, including attorneys’ fees, associated with defending, protecting, or enforcing Buyer’s rights under this Agreement including in any bankruptcy proceeding. 

7. Term and Termination; Survival.

This Agreement shall continue in full force and effect unless and until terminated in accordance with its terms, or all amounts payable in respect of the Purchased Receivables have been remitted to Buyer and all amounts payable by Seller hereunder have been paid in full,  Furthermore, the obligations of Seller under Sections 6, and 8 of this Agreement shall survive any termination hereof.

8. Miscellaneous.

  1. Counterparts; Integration. This Agreement and any amendments, waivers, consents, or supplements hereto may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic imaging means (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.  This Agreement constitutes the entire contract between the parties with respect to the subject matter hereof and supersedes all previous agreements and understandings, oral or written, with respect to the subject matter hereof.  
  2. Governing Law. This Agreement shall be governed by and construed and interpreted in accordance with the internal laws of the State of New York, without regard to principles of conflict of laws (other than Section 5-1401 of the New York General Obligations Laws).
  3. Severability. In the event that any provision of this Agreement is deemed invalid by reason of law, this Agreement will be construed as not containing such provision and the remainder of the Agreement shall remain in full force and effect.
  4. Amendments and Waivers. Neither this Agreement nor any provision hereof may be amended, modified, or waived except in writing signed by both parties. No failure to exercise and no delay in exercising, on the part of Buyer, any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude any other or further exercise thereof.
  5. Successors; Assignment. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns as permitted hereby, provided, that the rights of Seller under this Agreement may not be assigned or transferred to any person (whether by  merger, operation of law, or in connection with a change of control or otherwise) without the prior written approval of Buyer.  
  6. Limitation of Liability.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BUYER SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES OF SELLER, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, LACK OR LOSS OF PRODUCTIVITY, COST OF SUBSTITUTE EQUIPMENT OR SERVICES, EXCEPT THOSE WHICH ARISE PURSUANT TO BUYER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH CLAIM IN ADVANCE.
  7. Publicity.  Seller authorizes Buyer to use its name in a listing of clients and in advertising and marketing materials.
  8. Notices.  
    1. You agree that Viably and any agents acting on its behalf may send Notices to, receive communications from, or otherwise contact, including via text messages, the Account Owner, Administrators, or Users relating to Transactions in accordance with the terms outlined in this section. Viably and its agents may send Notices or otherwise communicate with you using the contact information provided to Viably or its agents by the Account Owner, Administrators, or Users, including phone numbers associated with mobile phones or devices, and may use autodialing or automated voice messaging technology. Viably and its agents are not responsible or liable for any charges or costs incurred by you, the Account Owner, Administrators, or Users in connection with such communications. “Notices” means any physical, voice, or electronic communication, or legal notices that are provided or directed to Company, Users, or Administrators through phone call, text messages, email, push notification, Company’s Account, or by any other means.
    2. Notices regarding payments, legal terms, and any other important Notices related to Transactions will be sent to the Account Owner and/or Administrators through their dashboard for the Account or email and are considered received 24 hours after sending.  Unless you’re communicating with Viably about a matter where Viably has specified another notice address (for example, certain communications specified in the Privacy Policy), you may contact Viably at [email protected]

(i) NO JURY TRIAL; ARBITRATION.

  1. SELLER AND BUYER EACH HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO, THIS AGREEMENT OR ANY OTHER PRESENT OR FUTURE INSTRUMENT OR AGREEMENT BETWEEN BUYER AND SELLER, OR ANY CONDUCT, ACTS OR OMISSIONS OF BUYER OR SELLER OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER PERSONS AFFILIATED WITH BUYER OR SELLER, IN ALL OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE.
  2. CONSENT TO BINDING ARBITRATION.  THE PARTIES SHALL RESOLVE ANY CLAIMS, DISPUTES, OR CONTROVERSIES ARISING OUT OF, OR RELATED IN ANY WAY, TO THIS AGREEMENT OR THE BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION OR VALIDITY THEREOF, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, BY NEUTRAL, BINDING ARBITRATION BEFORE ARBITRATOR(S) IN RALEIGH, NORTH CAROLINA, UNLESS THE PARTIES MUTUALLY AGREE ON A DIFFERENT LOCATION.  THE ARBITRATION SHALL BE ADMINISTERED BY JAMS PURSUANT TO ITS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES. THE AWARD RENDERED THEREON BY THE ARBITRATOR SHALL BE FINAL AND BINDING ON THE PARTIES THERETO, AND JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT THAT HAS JURISDICTION.  NO CLAIM SUBMITTED TO ARBITRATION WILL BE HEARD BY A JURY; PROVIDED, THAT NOTHING IN THIS SECTION SHALL PREVENT EITHER PARTY FROM APPLYING TO A COURT OF COMPETENT JURISDICTION FOR EQUITABLE OR INJUNCTIVE RELIEF.  ARBITRATION WILL BE GOVERNED BY THE FEDERAL ARBITRATION ACT (9 U.S.C. § 1 ET. SEQ.) AND NOT BY ANY STATE LAW CONCERNING ARBITRATION.  ANY ARBITRATION UNDER THIS AGREEMENT WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. IF ANY PROVISION OF THIS ARBITRATION AGREEMENT IS FOUND UNENFORCEABLE, THE UNENFORCEABLE PROVISION SHALL BE SEVERED, AND THE REMAINING ARBITRATION TERMS SHALL BE ENFORCED (BUT IN NO CASE SHALL THERE BE A CLASS ARBITRATION).  
  1. Titles and Section Headings.  The titles and section headings used herein are for convenience only and shall not be used in interpreting this Agreement.

9. Definitions

ACH Payout Account” means the account linked to the Designated Seller Account as set forth on Exhibit A to this Agreement.

Appendix” means the Viably Cash Advance Appendix, attached hereto as Appendix I, or the Viably Growth Capital Appendix, attached hereto as Appendix II, as the case may be.  

Business Day” means any day other than a Saturday, Sunday, or other day on which banks in New York City are required or authorized by law to close.

Collections” means any payments or other collections or recoveries received by Seller or by Buyer (as assignee of Seller) in respect of Receivables or Future Receivables, as the case may be.

Designated Seller Account” means the Viably account of Seller on the Viably platform set forth on Exhibit A to this Agreement. 

Marketplacemeans any marketplace on which Buyer conducts its business.

Appendix II – Viably Growth Capital

This Viably Growth Capital Appendix (the “Appendix“) sets forth the terms and conditions of Transactions entered into from time to time between Buyer and Seller and includes any Remit Schedule confirming those Transactions.  The definitions and provisions contained in the Viably Growth Receivables Master Purchase Agreement (the “Agreement”) are incorporated into this Appendix.  The Agreement, this Appendix, and the Remit Schedule evidence a complete and binding agreement between Buyer and Seller as to the subject matter and terms of each Transaction to which this Appendix and a Remit Schedule relate.  If, in relation to any Transaction to which this Appendix relates, there is any inconsistency between the Agreement and this Appendix, the Appendix will prevail for purposes of the Transaction.

The Parties have entered and/or anticipate entering into one or more transactions (each, a “Transaction”) that are or will be governed by the Agreement and this Appendix, which includes any Remit Schedule confirming those Transactions.  Accordingly, the parties agree as follows:

Purchase and Sale of Future Receivable.  

      1. Upon Seller’s payment of the Purchase Price, Seller absolutely and unconditionally assigns and sells to Buyer, and Buyer purchases from Seller an undivided ownership interest in any payment obligations to Seller (or to Buyer, as assignee of Seller) on a Marketplace, whether made by cash, check, credit or debit card, electronic transfer, or other form of monetary payment, in respect of the sale of goods or rendering of services by Seller (“Future Receivables”) equal to the Purchased Amount (the “Purchased Receivable”), free and clear of all liens, claims, security interest, set-offs, defenses and encumbrances adverse to the Purchased Receivable.    
      2. Such purchase by and conveyance to Buyer does not constitute and is not intended to result in the creation or assumption by Buyer or any of its affiliates of any obligation of Seller or any other person in connection with the Future Receivables or under any agreement or instrument relating to the Purchased Receivables. Buyer shall have no obligation to take any action or commence any proceedings to realize upon any Purchased Receivables (including without limitation any defaulted Purchased Receivables), or to enforce any of its rights or remedies with respect thereto.  Except for the express obligations of Seller hereunder, all sales of Future Receivables hereunder are without recourse to Seller.

Collections, Remittances

      1. Collections. Buyer acknowledges that ultimately its receipt of Collections on account of its Purchased Receivables is contingent upon (i) Seller’s future sales of goods and services to Seller’s customers after the date hereof, (ii) payment of the Future Receivables generated by such sales of goods and services and (iii) the timing of receipt of Collections of Future Receivables.  Buyer further acknowledges that, in the event and to the extent that Seller’s future business does not produce sufficient Future Receivables (or sufficient Collections on Future Receivables) to result in Buyer receiving from Collections funds equal to the full Purchased Amount on account of the Purchased Receivable, by these facts alone and absent violation or contravention of any term or provision of or failure to perform any obligation under this Agreement, Seller will not have breached the terms of this Agreement.  Buyer expressly assumes and undertakes the risk that, for any reason other than Seller’s breach of its obligations under this Agreement, the Collections out of Future Receivables which Buyer receives on account of the Purchased Receivables may be less than the full Purchased Amount.  Absent Seller’s breach of this Agreement, Buyer shall have no claim or recourse against Seller as a result of Buyer’s assumption of such risk.  Seller shall have no obligation to repurchase the Purchased Receivables conveyed to Buyer under this Agreement. 
      2. Remittances.  
        1. Seller irrevocably authorizes Buyer or its designated successor or assignee to initiate a debit of any amounts owing to Buyer hereunder (including the Purchased Amount) via Automatic Clearing House (“ACH”) from the Designated Seller Account or, to the extent there are insufficient funds in the Designated Seller Account, from the ACH Payout Account when and as such amounts become due.  Each successful ACH withdrawal of funds by Buyer from the Designated Seller Account or ACH Payout Account shall be deemed to satisfy Seller’s obligation hereunder to pay or remit such funds.  
        2. If there are insufficient Collections in the Designated Seller Account and ACH Payout Account to collect some or all of the Purchased Receivables on any Payout Date, Buyer shall collect such Purchased Receivables on the next following Payout Date or any time after the final Payout Date, to the extent Purchased Receivables have not been fully remitted by the final Payout Date. 
        3. Seller understands that the foregoing ACH authorizations are a fundamental condition to induce Buyer to enter into the Agreement.  Consequently, such authorizations are intended to be irrevocable.  Seller agrees to promptly execute and deliver all consents and other documents as Buyer may reasonably request from time to time to give full effect to such ACH authorizations.
        4. At such time that Buyer has received and retained both the full Purchased Amount under a Transaction, plus any and all other amounts owed by Seller to Buyer with respect to a Transaction, Buyer shall (but only with respect to such Purchased Amount and Transaction) cease to have any further interest in Seller’s Future Receivables in connection with such Transaction.  
        5. Notwithstanding the foregoing, in the event that Buyer is required for any reason to disgorge, return or otherwise relinquish ownership of any funds Buyer has received on account of its ownership interest in the Purchased Receivables with respect to a Transaction, the then-outstanding balance of the Purchased Receivables shall be increased by the amount of such disgorged, returned or relinquished funds and Buyer shall be entitled to recover such same amount from Future Receivables as they thereafter arise and are collected.
        6.  If Buyer withdraws an incorrect amount from the Designated Seller Account or ACH Payout Account, Seller authorizes Buyer to cure and correct the error after Seller notifies Buyer of the error.

Definitions

Payout Date” means each date designated as a “Payout Date” in the Remit Schedule.

Purchase Price” means, with respect to a Transaction and a Purchased Receivable, the “Purchase Price” therefor as specified in the Remit Schedule.  

Purchased Amount” means, with respect to a Transaction, an amount of Future Receivables equal to the Purchase Price plus the Fee as set forth in the relevant Remit Schedule.

Remit Schedule” means a schedule, substantially in the form of Appendix II-Exhibit I hereto, specifying the terms of a Transaction.