Broker Factoring Master Agreement Terms And Conditions Receivables Finance Agreement

2.1.1 From time to time, Seller may transmit to Purchaser a list of Seller’s Accounts by Accounts Transmittal. Purchaser may send to Seller a Purchase Summary Report based on such Accounts Transmittal, and Seller shall sell to Purchaser, as absolute owner, with full recourse, such of Seller’s Accounts as are listed on such Purchase Summary Report.

2.1.2 Each Accounts Transmittal shall be accompanied by such documentation supporting and evidencing the Account, as Purchaser shall from time to time request.

2.1.3 Purchaser may in the exercise of its sole discretion purchase from Seller such Accounts as Purchaser determines to be an Eligible Account, so long as the total outstanding Face Amount of Purchased Accounts does not exceed, before and after such purchase, the Receivable Finance Facility. Purchaser may, in Purchaser’s sole credit judgment exercised in good faith, either increase or decrease the Receivable Finance Facility. To the extent Purchaser’s purchase of any Purchased Account shall cause the total outstanding Face Amount of Purchased Accounts to exceed the Receivable Finance Facility, the then existing Receivable Finance Facility shall, as of the date of such purchase, be automatically increased by an amount equal to the amount by which the total outstanding Face Amount of Purchased Accounts exceeds the Receivable Finance Facility as a result of such purchase.

2.1.4 All parties hereto agree than an Account with Invoice Date thirty (30) or more days prior to the then current date shall not be considered an Eligible Account. Notwithstanding the foregoing, Purchaser may in the exercise of its sole discretion determine that an Account with Invoice Date thirty (30) or more days prior to the then current date shall be an Eligible Account.

2.1.5 Purchaser shall pay the Purchase Price, less any amounts due to Purchaser from Seller, including, without limitation, any amounts due under Section 2.3.2 hereof, of any Purchased Account to Seller’s Depository within three business days of Purchaser’s decision to purchase the Accounts, whereupon the Accounts shall be deemed purchased hereunder.

2.1.6 Purchaser may instruct each Account Debtor to remit all payments due under the related Account to Purchaser provided, that any Account Debtor may be permitted to pay all payments by the automatic debit of its account through the Automatic Clearing House System for payment to an account of Purchaser.

2.3.1 Upon the Reserve Release Period, Purchaser may pay to Seller any amount by which collected funds in the Reserve Account are greater than the Required Reserve Amount; provided, that no Event of Default exists hereunder, and provided further Purchaser, in its sole discretion and acting in good faith, has no concerns about Seller’s ability to continue to perform its obligations hereunder. Payment by Purchaser of said funds to Seller shall be made in accordance with any written instructions of Seller which are agreed to by Purchaser.

2.3.2 Purchaser may apply a portion of any Purchase Price to the Reserve Account in the amount of the Reserve Shortfall.

2.3.3 Seller shall pay to Purchaser, on demand, the amount of any Reserve Shortfall.

2.3.4 Purchaser may charge the Reserve Account with any Obligation, including any amounts due from Seller to Purchaser hereunder.

2.3.5 Exposed Payments

3.8.1 All past due amounts due from Seller to Purchaser hereunder; and

3.8.2 The amount of any Reserve Shortfall.

4.1 Purchaser may require that Seller repurchase, by payment of the unpaid Face Amount thereof, together with any unpaid fees relating to the Purchased Account, on demand, or at the Purchaser’s option, by Purchaser’s charge to the Reserve Account:

4.2 The repurchase of a Purchased Account shall not constitute a reassignment of such Account, and a security interest therein shall remain in the Purchaser.

5. Repayment of Fuel Advance. Purchaser may require Seller to repay any Fuel Advance, including any fees owed to Purchaser thereon, on demand, or at Purchaser’s option, by charge to the Reserve Account, any Fuel Advance:

5.1 Made 10 days or greater from the date of said request for repayment, for which an original Invoice sufficient to evidence an Eligible Account has not been provided by Seller to Purchaser; or

5.2 That in the sole judgment of Purchaser does not represent an Account that will become an Eligible Account.

6. Security Interest. As collateral securing the Obligations, Seller grants to Purchaser a continuing first priority security interest in and to the Collateral.

7. Authorization to Purchaser.

7.1 Seller irrevocably authorizes Purchaser to exercise at any time, any of the following powers, at Seller’s sole expense, until all of the Obligations have been paid in full: (a) receive, take, endorse, assign, deliver, accept and deposit, in the name of Purchaser or Seller, any and all proceeds of any Collateral securing the Obligations or the proceeds thereof; (b) take or bring, in the name of Purchaser or Seller, all steps, actions, suits or proceedings deemed by Purchaser necessary or desirable to effect collection of or other realization upon the Collateral; (c) pay any sums necessary to discharge any lien or encumbrance which is, or may become senior to Purchaser’s security interest in any assets of Seller, which sums shall be included as Obligations and debited to the Reserve Account; (d) initiate electronic debit or credit entries through any electronic clearinghouse or other system for presentment including but not limited to Electronic Check Presentment, and ACH systems to or from the Depository, or any deposit (or other) account maintained by Seller wherever located; (e) file in the name of the Seller or Purchaser or both: Mechanic’s Lien or related notices, and/or claims under any payment bond, in connection with goods or services sold or provided by Seller; (f) notify any Account Debtor obligated with respect to any Account, that the underlying Account has been assigned to Purchaser by Seller and that payment thereof is to be made to the order of and directly and solely to Purchaser; (g) communicate directly with Seller’s Account Debtors to verify the amount and validity of any Account created by Seller; (h) after an Event of Default, change the address for delivery of mail (inclusive of Fedex, UPS or similar service) to Seller and to receive and open mail addressed to Seller; (i) after an Event of Default, extend the time of payment of, compromise or settle for cash, credit, return of merchandise, and upon any terms or conditions, any and all Accounts and discharge or release any Account Debtor or other obligor (including filing of any public record releasing any lien granted to Seller by any such Account Debtor), without affecting any of the Obligations; (j) disclose such information to third parties making credit inquiries about Seller as Purchaser deems necessary, including but not limited to any such inquiries made by credit reporting agencies.

7.2 Seller irrevocably authorizes Purchaser at any time and from time to time to file any initial financing statements and amendments thereto that: (a) indicate the Collateral as all assets of the Seller or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC, or as being of an equal or lesser scope or with greater detail, (b) contain any other information required by part 5 of Article 9 of the UCC for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether the Seller is an organization, the type of organization, and any organization identification number issued to the Seller and (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates; (c) contain a notification that the Seller has granted a negative pledge to the Purchaser, and that any subsequent lienor may be tortuously interfering with Purchaser’s rights, and advises third parties that any notification of Seller’s Account Debtors will interfere with Purchaser’s collection rights.

7.3 Purchaser shall not have any duties or obligations (implied or otherwise) except those expressly set forth in this Agreement. None of Purchaser, its officers, employees, agents or designees shall have, and Seller hereby releases and exculpates all of such persons and entities, from any liability arising from any acts under this Agreement or in furtherance thereof whether of omission or commission, and whether based upon any error of judgment or mistake of law or fact, except for willful misconduct. In no event will Purchaser have any liability to Seller for lost profits or other special or consequential damages. Without limiting the generality of the foregoing, Seller releases Purchaser from any claims which Seller may now or hereafter have arising out of Purchaser’s endorsement and deposit of checks issued by Seller’s customers stating that they were in full payment of an account, but issued for less than the full amount which may have been owed on the account.

7.4 Seller hereby gives its consent to Purchaser, without compensation or any other limitation, to publish or display testimonials or other statements from Seller and by any means in any media for Purchaser’s advertising or promotional purposes.

7.5 Seller hereby gives its consent to Purchaser, without compensation or any other limitation, to share information about Seller including transactional data and information with nonaffiliated third parties for any purpose including marketing to Seller of special offers and trade discounts.

7.6 Seller hereby ratifies its authorization to Purchaser to file, prior to the date hereof, any initial financing statements or amendments which indicates the Collateral as all assets of the Seller or words of similar effect.

7.7 Seller hereby grants Purchaser the limited power of attorney to (a) correct and/or execute or initial all typographical or clerical errors discovered in any of the documents executed by Seller in connection herewith, (b) make, amend or correct any filing required by the Federal Motor Carrier Safety Administration or any governmental agency having jurisdiction over Seller, including but not limited to the correction of inconsistent names under which Seller is listed, (c) file or advertise fictitious names for the Seller in the name of and at the cost of Seller, including doing so through the use of a third-party vendor such as www.mycorporation.com, (d) prepare and sign, on behalf of Seller, notice of assignment of all of Seller’s Accounts to Purchaser, said notice to be provided to any Account Debtor of Seller at Purchaser’s sole discretion, and (e) prepare and sign, on behalf of Seller, authorization documentation necessary to enroll Seller for any applicable fuel program facilitated by Purchaser with any third party at Purchaser’s sole discretion. In the event that Purchaser corrects and/or executes or initials any errors in accordance with this Section 7.7, Purchaser will send Seller a copy of the document so executed or initialed on Seller’s behalf; provided, that failure to do so shall not invalidate the correction.

7.8 Seller will use the Services in accordance with this Agreement and the instructions and policies established by Purchaser from time to time and communicated to Seller.

7.9 Seller will use the Services and any products thereof, only for its internal business purposes, and will not directly or indirectly provide any of the Services or such products to any third party.

7.10 Seller agrees that Purchaser shall retain the amount of all Carrier Fees agreed to by Seller and Carriers. These Carrier Fees are exclusive of any applicable taxes. The Parties acknowledge that Carrier Fees constitute an integral aspect of the pricing of Purchaser’s facility to Seller. On a monthly basis Purchaser will transfer to the Reserve Account the portion of the Carrier Fees equal to the Share of Carrier Fees (if so specified in the Broker Factoring Master Agreement) multiplied by the total Carrier Fees generated in the prior calendar month.

7.11 Seller agrees to indemnify, defend, and hold harmless Purchaser and its parent, subsidiaries, and affiliated companies and their respective principals, directors, officers, shareholders, members, agents, and employees (individually and collectively, the “Indemnitees”) from and against any and all fines, losses, demands, injuries, rulings, judgments, causes-of-action, liabilities (actual, potential or threatened), costs and expenses including reasonable attorney’s fees and court costs, and claims including without limitation, any claims for injury to or death of any person or for loss of or damage to property (including loss of use thereof), resulting or arising from Seller’s negligence, willful misconduct, material breach of this Agreement or any agreement with a Carrier, or misrepresentation or violation of law, except to the extent any such liability is directly caused by the willful misconduct of Indemnitees any loan or working capital advance, remain unpaid.

7.12 Purchaser shall perform the Services as an independent contractor, and no provision of this Agreement or act of either party shall be construed for any purpose to express or imply a joint venture, partnership, principal/agent, parent/subsidiary, affiliate, employer/employee, joint employer, fiduciary or similar relationship between Purchaser and Seller.

7.13 Purchaser shall not be liable to Seller for, and Seller hereby waives any indirect, economic, special, commercial, incidental, exemplary, or consequential damages (including without limitation lost profits, loss of business revenue or earnings, lost data, damages caused by delays, or a failure to realize expected savings) directly or indirectly arising out of or in connection with the transactions contemplated by this Agreement, whether or not such damages could reasonably be foreseen or their likelihood has been disclosed to Purchaser. Purchaser’s sole liability to Seller or any third party for claims of any type or character arising from errors or omissions in the Services that are caused by Purchaser, upon conclusive determination by a court of competent jurisdiction, shall be to correct the affected Carrier payment at no additional charge to Seller or Carrier.

8. Covenants by Seller.

8.1 After written notice by Purchaser to Seller, and automatically, without notice, after an Event of Default, Seller shall not (a) grant any extension of time for payment of any of its Accounts, (b) compromise or settle its Accounts for less than the full amount thereof, (c) release in whole or in part any Account Debtor, or (d) grant any credits, discounts, allowances, deductions, return authorizations or the like with respect to any of the Accounts.

8.2 From time to time as requested by Purchaser, at the sole expense of Seller, Purchaser or its designee shall have access, during reasonable business hours if prior to an Event of Default and at any time if on or after an Event of Default, to all premises where Collateral is located for the purposes of inspecting (and removing, if after the occurrence of an Event of Default) any of the Collateral, including Seller’s books and records, and Seller shall permit Purchaser or its designee to make copies of such books and records or extracts therefrom as Purchaser may request. Without expense to Purchaser, Purchaser may use any of Seller’s personnel, equipment, including computer equipment, programs, printed output and computer readable media, supplies and premises for the collection of accounts and realization on other Collateral as Purchaser, in its sole discretion, deems appropriate. Seller hereby irrevocably authorizes all accountants and third parties to disclose and deliver to Purchaser at Seller’s expense all financial information, books and records, work papers, management reports and other information in their possession relating to Seller.

8.3 Commencing the date hereof, Seller shall deliver to Purchaser in form and substance satisfactory to Purchaser: (a) monthly Accounts Receivable Aging Report and Accounts Payable Aging Report by the 15th day following the end of each month, and (b) Federal Income Tax returns or Extension to File for each year by April 15th of the following year, but in no event shall the Federal Income Tax returns for each year be delivered later than October 30th of the following year. In the event the Receivable Finance Facility exceeds $500,000, Seller shall also deliver to Purchaser in form and substance satisfactory to Purchaser: (c) quarterly Financial Statements by the 30th day following the end of each quarter, and (d) annual Financial Statements prepared by a firm of independent certified public accountants of recognized standing and acceptable to Purchaser by April 15th of the following year.

8.4 Purchaser shall maintain, to the extent received by Purchaser, all contracts, accounting records, proof of payment, orders and invoices pertaining to Seller’s Accounts (collectively the “Records”) during the term of this Agreement and for at least 3 years thereafter. Notwithstanding the foregoing, Purchaser is not and will not be Seller’s record keeper, and shall only be obligated to take reasonable precautions to prevent the loss of the Records in Purchaser’s possession.

8.5 Before sending any Invoice to an Account Debtor, Seller shall mark same with a notice of assignment as may be required by Purchaser.

8.6 Seller shall pay when due all payroll and other taxes and shall provide proof thereof to Purchaser in such form as Purchaser shall reasonably require.

8.7 Seller shall not create, incur, assume or permit to exist any lien upon or with respect to any assets in which Purchaser now or hereafter holds a security interest.

8.8 Seller shall maintain insurance surety bonds and all insurances required by law to operate its business, as well as insurances on all insurable property owned or leased by Seller in the manner, to the extent and against at least such risks (in any event but not limited to fire and business interruption insurance) as usually maintained by owners of similar businesses and properties in similar geographic areas. All such insurance shall be in the amounts and form and with insurance companies acceptable to Purchaser in its sole discretion. Seller shall furnish to Purchaser: (a) upon written request, any and all information concerning such insurance carried; (b) lender loss payable endorsements naming Purchaser as loss payee, in form and substance satisfactory to Purchaser; and (c) at least annually and at such other times as reasonably requested by Purchaser, certificates of insurance from Insurance companies showing Purchaser as loss payee. All policies of insurance shall provide for not less than thirty (30) days prior written cancellation notice to Purchaser

8.9 Notwithstanding Seller’s obligation to pay the Misdirected Payment Fee pursuant to Section 3.5 hereof, Seller shall pay the amount of any payment on account of a Purchased Account received by Seller to Purchaser on the next banking day following the date of receipt thereof by Seller.

8.10 Seller shall not, without Purchaser’s prior written consent, enter into any consolidation, merger, or other combination, or become a partner in a partnership, a member of a joint venture, or a member of a limited liability company.

8.11 Seller shall not, without Purchaser’s prior written consent, have any existing, or make any new, investments in any individual or entity, or make any capital contributions or other transfers of assets to any individual or entity.

8.12 For the duration of this Agreement, Seller shall, by the third business day of each month, provide Purchaser with (i) Seller’s current customer list, including customer name, email address, mailing address, phone number and contact person, and (ii) Seller’s updated accounts receivable aging.

8.13 For the duration of this Agreement, Seller agrees that it shall not undertake any other financing or sell its future receivables to any entity other than Purchaser or Purchaser’s Affiliates without the express written consent of Purchaser and hereby acknowledges that such action may constitute a material dilution of Purchaser’s interest in the Collateral. In the event that Seller breaches this covenant, Seller shall pay to Purchaser the sum of ten percent (10%) of the financing received without Purchaser’s consent, in addition to any other remedies available to Purchaser under this Agreement.

8.14 Upon execution of this Agreement, Seller shall, if requested by Purchaser, deliver to Purchaser an executed Confession of Judgment (the “Confession of Judgment”), in the form provided by Purchaser, in favor of Purchaser in the amount of the outstanding Obligations.

9. Account Disputes. Seller shall notify Purchaser promptly of and, if requested by Purchaser, will settle all disputes concerning any Purchased Account, at Seller’s sole cost and expense. However, Seller shall not, without Purchaser’s prior written consent, compromise or adjust any Purchased Account or grant any additional discounts, allowances or credits thereon. Purchaser may, but is not required to, attempt to settle, compromise, or litigate (collectively, “Resolve”) the dispute upon such terms, as Purchaser in its sole discretion deems advisable, for Seller’s account and risk and at Seller’s sole expense. Upon the occurrence of an Event of Default Purchaser may Resolve such issues with respect to any Account of Seller.

10. Avoidance Claims.

10.1 Seller shall indemnify Purchaser from any loss arising out of the assertion of any Avoidance Claim other than such claims that relate to Purchased Accounts that are owed by an Account Debtor which was Insolvent and shall pay to Purchaser on demand the amount thereof.

11. Representation and Warranty. Seller represents and warrants that:

11.1 It is fully authorized to enter into this Agreement and to perform hereunder;

11.2 This Agreement constitutes its legal, valid and binding obligation;

11.3 Seller is solvent and in good standing in the State of its organization;

11.4 Seller has not received notice or otherwise learned of actual or imminent bankruptcy, insolvency, or material impairment of the financial condition of any applicable Account Debtor regarding Purchased Accounts;

11.5 Its financial statements, if provided to Purchaser, and any financial statements furnished to Purchaser hereafter, fairly represent the financial condition of Seller and each Guarantor at such dates, and since those dates there has been no material adverse change, financial or otherwise, in such condition or in the operation or ownership of Seller. Regardless of whether financial statements were provided to Purchaser, Seller has a continuing, affirmative obligation to advise Purchaser of any material adverse change in its financial condition, operation or ownership. Purchaser shall require bank login access, or bank statements if online access is unavailable, to any bank account maintained by Seller or Affiliate of Seller at any time during the performance of this Agreement and the Seller shall provide them to Purchaser within three (3) business days of Purchaser’s request. Seller’s failure to do so will constitute a material breach of this Agreement.

11.6 The Purchased Accounts are and will remain:

12.1 Events of Default. The following events will constitute an Event of Default hereunder: (a) Seller defaults in the payment of any Obligations or in the performance of any provision hereof or of any other agreement now or hereafter entered into with Purchaser, including with Purchaser’s Affiliates and any third party servicers, or any warranty or representation made at any time by Seller to Purchaser, including to Purchaser’s Affiliates and any third party servicers, proves to be false in any way, however minor, (b) Seller or any guarantor of the Obligations becomes subject to any debtor-relief proceedings, (c) any such guarantor fails to perform or observe any of such guarantor’s obligations to Purchaser or shall notify Purchaser of its intention to rescind, modify, terminate or revoke any guaranty of the Obligations, or any such guaranty shall cease to be in full force and effect for any reason whatever, (d) Purchaser for any reason, in good faith, deems itself insecure with respect to the prospect of repayment or performance of the Obligations, (e) failure of Seller or any guarantor to notify Purchaser in writing at least thirty (30) days prior to changing its name, jurisdiction of organization, organizational structure, or incorporating or otherwise initiating a new business substantially similar in ownership or operation (including a transportation brokerage) to that of Seller, (f) a change of twenty (20%) or more in the direct or indirect capital ownership of the Seller, (g) Seller suspends or discontinues its business as conducted on the date hereof for any reason, or at any time Seller has not submitted Accounts to Purchaser for purchase for a period of ninety (90) days or (h) Seller enables or permits any third party to directly or indirectly access any information contained in those areas of Purchaser’s website or account portal which are accessible with the use of a password provided to Seller by Purchaser, including but not limited to any access to printouts, or paper or electronic copies of such information from Purchaser’s website, or (i) Seller fails to pay any Carrier the amount owed by Seller to Carrier within the Carrier Payment Term.

12.2 Effect of Default. Upon the occurrence of any Event of Default, (a) the Default Rate shall accrue and is payable on all Obligations, and in addition to any rights Purchaser has under this Agreement or applicable law, Purchaser may immediately terminate this Agreement, at which time all Obligations shall immediately become due and payable without notice, and (b) any fees due hereunder and previously waived by Purchaser shall be automatically reinstated, all such fees having been waived on the condition that no Event of Default was existing or shall thereafter occur. Further, upon the occurrence of any Event of Default or after the giving of any notice of termination pursuant to Section 13 hereof, Purchaser may in its sole discretion, deny Seller access to any remotely accessed reporting or credit system (including any online or telephone systems or account portal) that may be maintained by Purchaser. Upon the waiver by Purchaser of any Event of Default hereunder, Seller shall pay Purchaser a default waiver fee equal to ten percent (10%) of the then existing Receivable Finance Facility. Any failure by Purchaser to assess such default waiver fee immediately upon the occurrence of an Event of Default shall not be deemed a waiver by Purchaser to charge such fee.

12.3 Waiver of Notice. SELLER WAIVES ANY REQUIREMENT THAT PURCHASER INFORM SELLER BY AFFIRMATIVE ACT OR OTHERWISE OF ANY ACCELERATION OF SELLER’S OBLIGATIONS HEREUNDER. FURTHER, PURCHASER’S FAILURE TO CHARGE OR ACCRUE INTEREST OR ANY FEES DUE HEREUNDER SHALL NOT BE DEEMED A WAIVER BY PURCHASER OF ITS CLAIM THERETO

13. Term. This Agreement will be effective on the Closing Date and will continue in full force and effect until Purchaser has released its lien in accordance with paragraph 16 hereof.

13.1 Any notice to terminate this Agreement by Seller must be given either by a) email to Purchaser sent to: [email protected] or b) by mail addressed to: eCapital Freight Factoring Corp., Att: Contracts Department, at 20807 Biscayne Blvd #203, Aventura, FL 33180. Termination notices sent by any other method or to any other email address will be deemed invalid.

13.2 Early Termination. Seller shall also have the option at any time that is not during a Notice Window, and upon thirty (30) days prior written notice to Purchaser, to terminate this Agreement by paying to Purchaser in cash the amount of the outstanding Obligations. In such case, at the time of said early termination, Seller shall also pay to Purchaser an early termination fee not to exceed ten percent (10%) of the then existing Receivable Finance Facility, as increased in accordance with Section 2.1.5 hereof, as well as any unpaid Minimum Monthly Fee(s) for the remaining months of the Agreement. (collectively the “Termination Amount”).

In the event of early termination by Seller as aforesaid, the Service Charge Fee due on all unpaid Accounts shall be calculated based on the Account being Closed on the Late Payment Date.

Notwithstanding any other provision of this Agreement, Seller shall pay to Purchaser Buyout Fees and/or UCC Termination Fees as may be due under section 3.9.1 hereof.

13.3 Purchaser may terminate this Agreement without notice following the occurrence of an Event of Default, after which event Seller shall pay to Purchaser the Termination Amount.

13.4 Any payments received by Purchaser from any Account Debtor following the termination of this Agreement may be, at Purchaser’s option, (a) applied to repay any outstanding Obligations hereunder, (b) forwarded to Seller, or (c) returned to such Account Debtor. Notwithstanding the foregoing, Purchaser (i) shall not bear any responsibility or liability with respect to any such payments, and (ii) may retain 2.5% of the amount of any such payments received to cover Purchaser’s costs of handling such payments.

14. Account Stated. Purchaser shall render to Seller, from time to time, a statement by email or online setting forth the transactions arising hereunder. Each statement shall be considered correct and binding upon Seller as an Account Stated, except to the extent that Purchaser receives, within thirty (30) days after providing such statement, written notice from Seller of any specific exceptions by Seller to that statement, whereafter it shall be binding against Seller as to any items to which it has not objected.

15. Amendment. Purchaser reserves the right to amend these Terms and Conditions at any time, and from time to time, by publishing a revised version of the Terms and Conditions at the following site, /freight-factoring/broker-terms/ or any redirect. Seller’s submission of Accounts to Purchaser for purchase following the posting of any such amendments to the Terms and Conditions constitutes Seller’s acceptance of those revisions, and Purchaser has no obligation to inform Seller of such changes in any other manner. Further, if an increase in either the Libor Rate or the Prime Rate over that paid by Purchaser at the Closing Date raises the Purchaser’s cost of borrowing, then in such event, Purchaser may immediately increase the Fees (including the Administrative Fee and Service Charge) then charged to Seller so as to recoup Purchaser’s increased costs of borrowing with respect to subsequently Purchased Accounts. No failure to exercise and no delay in exercising any right hereunder shall impair any such right that Purchaser may have, nor shall any waiver by Purchaser hereunder be deemed a waiver of any default or breach subsequently occurring. Purchaser’s rights and remedies herein are cumulative and not exclusive of each other or of any rights or remedies that Purchaser would otherwise have.

16. No Lien Termination without Release. In recognition of the Purchaser’s right to have its attorneys’ fees and other expenses incurred in connection with this Agreement secured by the Collateral, notwithstanding payment in full of all Obligations by Seller, Purchaser shall not be required to record any terminations or satisfactions of any of Purchaser’s liens on the Collateral unless and until Seller has executed and delivered to Purchaser a notarized general release (which shall be notarized if required by Purchaser) in the form contained on Exhibit A attached hereto. Seller understands that this provision constitutes a waiver of its rights under §9-513 of the UCC.

17. Confidentiality. Seller hereby agrees not to, at any time, disclose to any persons or use for his or its own account or for the benefit of any third party any Confidential Information, whether or not such information is embodied in writing or other physical form or is retained in the memory of any representative of Seller, without the Purchaser’s written consent, unless and to the extent that the Confidential Information is or becomes generally known to and available for use by the public other than as a result of Seller’s fault or the fault of any other person bound by a duty of confidentiality to Purchaser.

18. Intellectual Property. Neither party shall be entitled or holds any rights, whether express or implied, to use or display the Intellectual Property of the other party, provided, however that, during the term of this Agreement, Seller grants to Purchaser a limited, revocable license to utilize Seller’s Intellectual Property for the sole purpose of advertising and marketing Purchaser’s business and its services. Seller acknowledges and agrees that Purchaser’s hardware, systems, software, and processes used in performing the Services are the property of Purchaser and nothing in this agreement grants Seller any license or rights to such systems, software and processes, or any Intellectual Property to Purchaser.

19. Attorneys’ Fees. Seller agrees to reimburse Purchaser on demand for:

19.1 The actual costs, including photocopying, travel, and attorneys’ fees and expenses incurred in complying with any subpoena or other legal process attendant to any litigation in which Seller is a party;

19.2 Either (the choice of which shall be in the sole discretion of Purchaser):

23.1 In order to gain the benefits of a speedy, impartial and cost-effective dispute procedure, and for good and valid consideration as covenanted herein, and intending to be legally bound, Purchaser, Seller and Guarantor(s) hereby agree that, except as otherwise provided herein, at the election of any party by notice to the other parties, all disputes and claims for which a court otherwise would be authorized by law to grant relief, in any manner, that Seller and/or Guarantor(s) may have, now or in the future, of any and every kind of nature whatsoever with or against Purchaser or Purchaser’s Affiliates or any third party servicer, shall be submitted to the American Arbitration Association (“AAA”) to be resolved and determined through final and binding arbitration according to the Commercial Arbitration Rules of the AAA. This Section 21 is a material inducement for Purchaser to enter into this Agreement.

23.2 Each party shall have the right to representation by counsel with respect to arbitration of any dispute arising out of or related to this Agreement. Except as prohibited by law, at the request of any party, the arbitration proceedings shall be conducted in confidence, and, in such a case, all documents, testimony, and records shall be received, heard, and maintained by the arbitrator in confidence, available for inspection only by the parties, their respective attorneys, and experts, who shall agree, in advance and in writing, to receive all such information confidentially and to maintain the secrecy of such information until it shall become generally known. The parties shall be allowed adequate discovery as part of the arbitration process, including reasonable access to essential documents and witnesses as determined by agreement or the arbitrator.

23.3 Unless the parties agree otherwise, any arbitration hearings shall take place in Miami-Dade County, Florida. If the claim against Purchaser or Seller is for $100,000 or less, the parties agree the arbitration will be conducted solely on the basis of the documents submitted to the arbitrator, through a telephonic hearing. If the claim exceeds $100,000, unless the parties agree otherwise, the arbitration will be conducted by an in-person hearing. If the arbitration is conducted by an in-person hearing, the arbitrator shall conduct a full hearing as to all issues and disputes not resolved by dispositive motion. At such hearing, the parties shall be entitled to present evidence and examine and cross-examine witnesses. The arbitrator shall issue a written decision revealing the essential findings and conclusions upon which any award is based. In addition, except as otherwise specified herein, the arbitrator shall have the authority to award equitable relief, and damages, including, but not limited to, any remedy or relief that a governing court might order.

23.4 The parties agree that any arbitration award rendered as the result of any arbitration under this Agreement shall be final and binding, and judgment on the award may be entered and enforced in any court having jurisdiction thereof.

23.5 The parties agree that this Agreement, any arbitration under this Agreement, and any arbitration award rendered in such arbitration shall be governed by the Federal Arbitration Act. The parties further agree that any issues as to arbitrability of a dispute, including but not limited to this Section 21, shall be resolved and decided by the arbitrator. All statutes of limitations which would be applicable to a judicial proceeding shall be applicable to an arbitration proceeding under this Agreement.

23.6 With respect to all costs and fees of the arbitration, the parties agree that each party shall bear its own costs and fees, including witness fees and attorneys’ fees, and that each party shall bear an equal share of the arbitrator’s fees. The arbitrator shall award to the prevailing party in the arbitration all of their costs and fees of the arbitration, including witness and attorneys’ fees.

23.7 Nothing in this Section 21 shall limit the right of a party (i) to exercise self-help remedies available under this Agreement, including, without limitation, setoff or exercising its rights under the UCC, or (ii) to obtain from a court provisional or ancillary remedies such as, but not limited to, injunctive relief, specific performance, attachment, or the appointment of a receiver from a court having jurisdiction before, during, or after the pendency of any arbitration proceeding. The pursuit of provisional or ancillary remedies or exercise of self-help remedies shall not constitute a waiver of the right of any party to submit such dispute or claim to arbitration.

23.8 CLASS ACTION WAIVER. THE PARTIES HERETO WAIVE ANY RIGHT TO ASSERT ANY CLAIM AGAINST THE OTHER PARTY AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW AS AGAINST PUBLIC POLICY. TO THE EXTENT EITHER PARTY IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES CLASS HEREBY AGREE THAT: (1) THE PREVAILING PARTY SHALL NOT BE ENTAILED TO RECOVER ATTORNEYS FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOT WITHSTANDING ANY OTHER PROVISIONS IN THIS AGREEMENT); AND (2) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.

24. Covenant Not to Sue.

24.1 Seller and Guarantor(s) agree that they will never institute, prosecute or in any way aid in the institution or prosecution of any claim, demand, action or cause of action at law or in equity against the Purchaser, Purchaser’s Affiliates or any third party servicer for a claim of usury, a claim that that the Purchaser is required to have any lending license, or any other claim contending that the Purchase Price paid by the Purchaser in exchange for the Purchased Accounts is, or should be construed as, a loan from the Purchaser to the Seller. Nothing in this Section 22 is intended to prevent Seller or Guarantor from complying with any lawfully issued subpoena or court ordered discovery.

24.2 This Section 22 is a covenant not to sue, and not a release. In the event that the Seller or any Guarantor breaches or in any way violates the terms of this Section 22 the Sellers and Guarantors jointly and severally agree to indemnify the Purchaser for all damages arising from that breach, including without limitation the payment of all costs and expenses of every kind for the enforcement of Purchaser’s rights and remedies under this section, including any and all attorneys’ fees and costs in any trial court or appellate court proceeding, any administrative proceeding, any arbitration or mediation, or any negotiations or consultations in connection with breach of this section 22.

24.3 This covenant shall inure to the benefit of Purchaser, Purchaser’s Affiliates and any third party servicers, and shall bind Seller, Guarantor(s) and their respective successors and/or assigns, any of their respective affiliated or subsidiary companies, partners, owners, joint ventures, and/or any of Seller’s managers, directors, officers, employers or agents.

25. No Liability for Special Damages.

25.1 Purchaser may from time to time promote or provide to Seller the products or services of third parties, such as (but not limited to) fuel cards, fuel discounts, insurance, and roadside services, (“the Services’). The Seller acknowledges and agrees that the Purchaser is acting as a facilitator in the provision of the Services and does not provide any guaranty or warranty of performance by itself or by such third party. Seller hereby indemnifies Purchaser against any claim it may have arising out of the provision of the Services.

25.2 In no event (including but not limited to any claim under 23.1) will Purchaser be liable for any claims asserted by Seller under any legal theory for lost profits, lost revenues, lost business opportunities, exemplary, punitive, special, incidental, indirect or consequential damages, each of which is waived by Seller and each Guarantor.

26. Indemnified Amounts. Upon the occurrence of an Event of Default, except as otherwise provided in Section 21, Seller and Guarantor(s), jointly and severally, shall assume liability for and do hereby agree to indemnify, protect, save and keep harmless Purchaser, Purchaser’s Affiliates, and any third party servicers from and against any and all liabilities, claims, losses, obligations, damages, penalties, actions and suits of whatsoever kind and nature imposed on, incurred by or asserted against Purchaser, Purchaser’s Affiliates or any third party servicers, in any way relating to or growing out of such Event of Default (collectively, “Indemnified Amounts”), including without limitation the payment of all costs and expense of every kind for the enforcement of Purchaser’s rights and remedies hereunder and/or the collection of amounts due to Purchaser hereunder, including attorneys’ fees and costs in any trial court or appellate court proceeding, any administrative proceeding, any arbitration or mediation, or any negotiations or consultations in connection with any Event of Default. Such Indemnified Amounts shall bear interest at the highest rate of interest allowed by applicable law until paid.

27. Notice. All notices required to be given to Purchaser, except as specified in paragraph 13.1 (notice of termination), shall be sent to: 20807 Biscayne Blvd #203, Aventura, FL 33180; Attn: The General Manager; and if to Seller, at the address, fax number or email address furnished on the Finance Application or Factoring Master Agreement, or to such other addresses as each such party may in writing hereafter indicate.

28. Mechanic’s Lien. Where applicable, Seller hereby agrees at Purchaser’s request to file a Notice of Mechanic’s Lien on any real property improvement upon which it has performed labor or furnished materials, the Account for which labor and/or materials it has assigned to Purchaser. In the event Seller fails to promptly comply with such request, Seller does hereby constitute and appoint Purchaser as its agent to execute and file in the name of Seller a Notice of Mechanic’s Lien to the extent of the debt due from the Account Debtor for and on account of such labor and material. In connection with the filing of such Notice of Mechanic’s Lien, the Seller agrees to periodically advise the Purchaser of the amount or amounts owed by the Account Debtor in connection with each real improvement so that the Notice of Mechanic’s Lien will be accurate in all respects. Seller further agrees not to provide the Account Debtor with a “Waiver of Right to File a Notice of Mechanic’s Lien” without the prior written consent of Purchaser.

29. Conflict. Unless otherwise expressly stated in any other agreement between Purchaser and Seller, if a conflict exists between the provisions of this Agreement and the provisions of such other agreement, the provisions of this Agreement shall control.

30. Severability. In the event or more of the provisions contained in this Agreement is held to be invalid, illegal or unenforceable in any respect, then such provisions shall be ineffective only to the extent of such prohibition or invalidity, and the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.

31. Enforcement. This Agreement and all agreements relating to the subject matter hereof is the product of negotiation and preparation by and among each party and its respective attorneys, and shall be construed accordingly.

32. Relationship of Parties. The relationship of the Parties hereto shall be that of Seller and Purchaser of Accounts, and Purchaser shall not be a fiduciary of the Seller, although Seller may be a fiduciary of the Purchaser. Purchaser may, at Purchaser’s option, contract with one or more third parties chosen by Purchaser, including but not limited to Capital Partners Services, to perform all or part of Purchaser’s duties hereunder.

33. Service of Process. Seller agrees that Purchaser may effect service of process upon Seller by regular mail at the address for notices set forth in section 25 of this Agreement, or at the option of Purchaser, if Seller is a Registered Organization, by service upon Seller’s agent for the service of process.

34. Successors and Assigns.

34.1 This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

34.2 Purchaser may assign its rights and delegate its duties hereunder. Upon such assignment, Seller shall be deemed to have attorned to such assignee and shall owe the same obligations to such assignee and shall accept performance hereunder by such assignee as if such assignee were Purchaser. Such assignment shall constitute a novation whereby Seller shall agree that the assignee assumes Purchaser’s obligations under this Agreement and Purchaser is released from further liability under this Agreement. Seller may not assign its rights or delegate its duties hereunder, without Purchaser’s prior written consent.

35. Choice of Law and Venue. This Agreement and all transactions or disputes arising directly or indirectly hereunder shall be governed by, construed under and enforced in accordance with the internal laws of the State of Florida.  Subject to the mandatory arbitration requirements set forth in Paragraph 23, and all subsections thereto, any suit, action or proceeding arising out of the subject matter hereof, or the interpretation, performance or breach of this Agreement shall, if Purchaser so elects, be instituted in the United States District Court for the  Southern District of Florida, the Eleventh Judicial Circuit Court of Florida, or any other judicial forum located in the state of Florida (the “Acceptable Forums”). Each party agrees that the Acceptable Forums are convenient to it, and each party irrevocably submits to the jurisdiction of the Acceptable Forums, irrevocably agrees to be bound by any judgment rendered thereby in connection with this Agreement, and waives any and all objections to jurisdiction or venue that it may have under the laws of the State of Florida or otherwise in those courts in any such suit, action or proceeding.  Should such proceeding be initiated in any other forum, Seller waives any right to oppose any motion or application made by Purchaser as a consequence of such proceeding having been commenced in a forum other than an Acceptable Forum.