Sample Business Contracts

Factoring Agreement - BNY Financial Corp. and Acclaim Entertainment Inc.

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                           BNY FINANCIAL CORPORATION
  Acclaim Entertainment, Inc.
  71 Audrey Avenue
  Oyster Bay, NY  11771
    Effective as of February 1, 1995, this agreement restates and amends in
  its  entirety, without a break in continuity, that certain Factoring
  Agreement dated  February 26, 1990 ("Effective Date"), as supplemented
  and amended and all  references to the "Factoring Agreement" contained
  therein shall be deemed to be  references to this Restated and Amended
  Factoring Agreement. Nothing contained  herein, however, is or shall be
  deemed to change or limit  any of the Other  Documents (as defined in
  that certain Revolving Credit and Security Agreement  dated as of January
  1, 1993, as Amended and Restated on February 28,1995  entered  into
  between ourselves, as Lender, and yourselves, Acclaim Distribution Inc.,
  LJN  Toys,  Ltd., Acclaim Entertainment Canada, Ltd. and Arena
  Entertainment, Inc. as  Borrowers (each and all of such other Borrowers,
  herein "Affiliated Concerns");  such Revolving Credit and Security
  Agreement as amended and supplemented, herein  the "Credit Agreement")
  between or concerning us, which shall each remain in full  force and
    This agreement states the terms and conditions upon which we are to act
  as  your sole factor.
      (a)  You hereby assign and sell to us, as absolute owner, and we  hereby
  purchase from you, all home interactive entertainment software
  Receivables  (as hereinafter defined) other than Receivables: (i) arising
  from sales to your  subsidiaries and affiliates, and (ii) arising from
  sales made to customers outside  the United States of America, Canada or
  Mexico, which Receivables in each case are   created on or after the
  Effective Date, which arise from your rendition of  services or your sale
  of merchandise.  Our purchase of and acquisition of title to  each
  Receivable will be effective as of the date of its creation and will be
  entered on our books when you furnish us with a copy of the respective
      (b)  You hereby grant to us a continuing security interest in all of
  your present and future Receivables, as security for all "Obligations"
  (as  hereinafter defined).
    You shall submit to us the principal terms of each of your customers'
  orders  for our written credit approval.  We may, in our discretion,
  approve in writing  all or a portion of your customers' orders, either by
  establishing a credit line  limited to a specific amount for a specific
  customer, or by approving all or a  portion of a proposed purchase order

  submitted by you.  No credit approval shall  be effective unless in
  writing and unless the goods are shipped or the services  rendered within
  the time specified in our written credit approval or within 45  days
  after the approval is given, if no time is specified.  After the customer
  has  accepted delivery of the goods or performance of the services, we
  shall then have  the "Credit Risk" as hereinafter defined (but not the
  risk of non-payment for any  other reason), to the extent of the dollar
  amount specified in the credit  approval, on all Receivables evidenced by
  invoices which arise from orders  approved by us in writing.  We shall
  have neither the Credit Risk nor the risk of  non-payment for any other
  reason on Receivables arising from orders not approved  by us in writing.
  We may withdraw our credit approval or withdraw or adjust a  credit line
  at any time before you deliver the goods or render the services.
    The purchase price of Receivables is the net face amount thereof less our
  commission.  The term "net face amount" means the gross face amount of
  the  invoice, less returns, discounts (which for purposes hereof shall be
  determined by  us where optional terms are given), anticipation
  reductions or any other  unilateral deductions taken by customers, and
  credits, and allowances to customers  of any nature.  The purchase price
  will be payable on the "Maturity Date"  (hereinafter described).  At the
  close of each month, we will compute the average  due date of all
  Receivables purchased by us during the month.  In computing the  average
  due date we will take into account all credits issued to customers.  The
  Maturity Date for all such Receivables will be six (6) business days
  after the  average due date.  We may deduct, from the amount payable to
  you on any Maturity  Date, reserves for all Obligations then chargeable
  to your account and Obligations  which, in our sole judgment, may be
  chargeable to your account thereafter  ("Reserves").
      (a)  For our services, we shall charge to your account
        (i)  effective as of February 1, 1995, monthly, as of the  last day of
  each month, interest on the average daily balance of all amounts  charged
  and chargeable to your account hereunder (said amounts being herein
  called  "Interest Bearing Obligations") which are outstanding during such
  month at the  average "Revolving Advance  Rate" (as  defined in the
  Credit Agreement) in effect  during such month; provided, that said
  interest rate shall not be less than three  percent (3%) per annum and
  shall in no event be higher than the highest rate  permitted by New York
  law;  provided however, that the interest rate applicable to  the
  relevant month shall be: (A) the Overformula Rate (as defined in the
  Credit  Agreement);  or (B) the Default Rate (as defined in the



  Credit Agreement), in any instance where the same is stated to be the
  applicable  interest rate pertaining to Revolving Rate Advances (as

  defined in the Credit  Agreement and) under the Credit Agreement.
  Interest shall be calculated on the  basis of the actual number of days
  elapsed over a year of 360 days.
        (ii)  effective as of February 1, 1995, monthly, as of  the 15th day of
  each month, a commission at the rate (the "Commission Rate") of  twenty
  five one hundredths  of one percent (.25%) of the gross face amount of
  each  invoice evidencing a Receivable less promotional, advertising and
  warehousing  allowances which allowances, in the aggregate shall not
  exceed 5% of the gross  face amount of each invoice evidencing a
  Receivable purchased hereunder during  such month on terms not exceeding
  60 days (including dating), plus an additional  one hundred twenty five
  one thousandths of one percent (.125%) for each additional  thirty (30)
  days or portion thereof of selling terms (such additional dating
  commission shall not apply to Receivables due from Marisal, Best Buy and
  Caldor,  Inc.).   However, the aggregate amount of commissions you shall
  be obligated to  pay to us for each Calendar Quarter (the three month
  periods which start on each  of January 1, April 1, July 1 and October 1
  of each year)  of a Calendar Year (the  twelve month period starting
  January 1 of each year) or part thereof ("Partial  Calendar Quarter")
  during which this agreement is in effect, shall not be less  than
  $125,000 (the "Minimum Commission"); provided however, that: (a) no
  Minimum  Commission shall be payable if we terminate this agreement prior
  to the Yearly  Cutoff Date as (defined and) described in Paragraph
  9(a)(i) below in the absence  of an Event of Default as defined in and
  pursuant to Paragraph 9 (a)(ii) hereof;  and (b) the Minimum Commission
  applicable to any Partial Calendar Quarter shall be  prorated, based upon
  the number of calendar months included in such Partial  Calendar Quarter. 
  If the commissions  paid by you to us in any Calendar Quarter  or
  Partial Calendar Quarter  (if any) is less than the Minimum Commission or
  a  prorated portion thereof, as the case may be, we shall charge to your
  account  the  difference ("Minimum Volume Charge") between the
  commissions so paid and the  Minimum Commission or a prorated protion
  thereof, as the case may be.  We shall  compute the Minimum Volume
  Charge, if any, on a calendar quarterly basis and  charge your account
  therefor for each Calendar Quarter in the month following the  end of
  such Calendar Quarter, or in the month following the effective date of
  termination of this agreement. If any Minimum Volume Charge is paid by
  you to us  for any particular Calendar Quarter(s) and in any subsequent
  Calendar Quarter or  Partial Calendar Quarter (if any) in the same
  Calendar Year, you pay commissions  to us hereunder which exceed the
  Minimum  Commissions for such subsequent Calendar  Quarter, then at the
  end of such subsequent Calendar Quarter, you shall be  entitled to a
  credit to your account, in an amount equal to the lesser of: (A) any
  such excess from the subsequent Calendar Quarter(s) within the same
  Calendar Year;  or (B) the Minimum Volume Charge paid for any such
  Calendar Quarter(s).   Similarly, if for any Calendar Quarter(s) within a
  particular Calendar Year, the  commissions paid to us under this
  Agreement exceed the Minimum  Commissions  applicable thereto, and we
  otherwise are entitled to receive a Minimum Volume  Charge for any
  subsequent Calendar Quarter(s) in the same Calendar Year, in  calculating
  the amount of any such Minimum Volume Charge applicable to such
  subsequent Calendar Quarter(s), you shall be entitled to a credit against
  the  same, in an amount equal to the lesser of: (y) any such excess

  amount(s) from the  prior Calendar Quarter(s) within the same Calendar
  Year; or (z) the Minimum Volume  Charge payable for any such Calendar
  Our commission on any invoice evidencing a Receivable purchased hereunder
  shall  not be less than $4.50 ("Minimum Invoice Commission") except that
  there shall be  no Minimum Invoice Commission with respect to invoices
  evidencing receivables  arising from sales to Caldor, Inc., HQ Army & Air
  Force, Shopko Stores, Inc., F.W.  Woolworth Co. ("U.S.") and other
  customers agreed to by us from time to time.
        (iii)   customer late payment charges (computed at the same  rate as
  charged on Interest Bearing Obligations, but only if the charge exceeds
  Five Dollars ($5.00) and the payment is six (6) business days or more
  past due.
        (iv)  all bank charges for wire transfers.
        (b) Notwithstanding any of the terms hereof to the contrary,  effective
  as of February 1, 1995, at the close of the twelve month period from
  February 1, 1995 to and including January 31, 1996 and each successive
  twelve  month period (a "Contract Year") and at the close of business on
  the effective  termination date of this Agreement (and the period of time
  commencing on February  1, 1995 or any February 1 thereafter during which
  this Agreement is in effect and  ending on such effective termination
  date, herein the "Partial Last Year"), you  shall pay to us or, at our
  option, we may debit to your account with us the first  fifteen
  hundredths of one percent (.15%) of the aggregate amount of Receivables
  sold and assigned to us in each such Contract Year or Partial Last Year,
  as the  case may be, for Credit Losses in respect of Receivables for
  which we have the  Credit Risk but, except as provided above,  we shall
  continue to have the Credit  Risk on all Receivables approved by us in
  writing pursuant to, and to the extent  provided in, this Agreement. 
  For purposes of this subsection (b), " Credit Loss"  shall mean the
  aggregate net face amount of all of your Receivables generated  during a
  Contract Year which we determine to have remained wholly or partially
  unpaid at maturity solely because of the financial inability of the
  customer to  pay regardless of whether such determination is made in any
  such Contract Year, or  at any other time; provided, however, that for
  the purposes of computing such  aggregate net face amount under this
  subparagraph (b),  the net face amount of any  such Receivable shall be
  limited to the unpaid amount of such Receivable on  the   date the actual
  write off is entered on our books for such Receivable.
    On the last day of each month, we shall credit your account with interest
  at  the average Federal Funds Rate (as defined in the Credit Agreement)
  in effect  during such month on the average daily balance of any amounts
  payable by us to you  hereunder (as confirmed by us by appropriate credit
  to your account with us) which  are not drawn by you on the Maturity
  Date, while held by us after the Maturity  Date.


    We may charge to your account all Obligations.  Unless otherwise
  specified,  all Obligations, including any debit balance in your account,
  shall be payable on  demand.  Recourse to security will not be required
  at any time.  All credit  balances or other sums at any time standing to
  your credit and all Reserves on our  books, and all of your property in
  our possession at any time or in the possession  of any parent, affiliate
  or subsidiary of ours or on or in which we or any of them  have a lien or
  security interest, may be held and reserved by us as security for  all
  Obligations.  We will account to you monthly and each monthly accounting
  statement will be fully binding on you and will constitute an account
  stated,  unless, within ninety (90) days after such statement is mailed
  to you or within  ninety (90) days after the mailing of any adjustment
  thereof we may make, you give  us specific written notice of exceptions.
      (a)  You warrant and represent that each Receivable purchased  hereunder
  is a bona fide, enforceable obligation created by the absolute sale and
  delivery of goods or the rendition of services in the ordinary course of
  business;  you have good title to the Receivable free of any encumbrance
  except in favor of  us or in favor of the Hongkong and Shanghai Banking
  Corporation Limited (the  "Hongkong Bank") your customer is
  unconditionally obligated to pay at maturity the  full amount of each
  Receivable purchased hereunder without defense, counterclaim  or offset,
  real or alleged; all documents in connection therewith are genuine; and
  the customer will accept the goods or services without alleging any
  defense,  counterclaim, offset, dispute or other claim whether arising
  from or relating to  the sale of such goods or services or arising from
  or relating to any other  transaction or occurrence (a "Dispute").
      (b)  You further represent and warrant that (i) your address set  forth
  above is that of your chief place of business and chief executive office
  and  the location of all "Collateral" (as hereinafter defined) and of
  your books and  records relating to the Receivables, subject to the
  understanding that on and  after May 1, 1995, your chief place of
  business and chief executive office, as  well as the location of  certain
  of the "Collateral", and of your books and  records relating to the
  Receivables, shall be at 70 Glen Street, Glen Cove, New  York; and (ii)
  by a separate writing you have disclosed to us the locations of all  of
  your other places of business as well as all trade names or styles,
  trademarks,  divisions or other names under which you conduct business
  (hereinafter  collectively defined as the "Trade Names").
      (c)  You shall promptly provide us with duplicate originals of all
  credits which you issue to your customers and immediately notify us of
  any  merchandise returns or Disputes.  You will settle all Disputes at no
  cost or  expense to us; our practice is to allow you a reasonable time to
  do so.  Should we  so elect, we may at any time in our discretion (i)
  withdraw your authority,  following the occurrence of the Event of
  Default which is continuing, to issue  credits to your customers without

  our prior written consent; (ii) litigate  Disputes or settle them
  directly with the customers on terms acceptable to us; or  (iii) direct
  you to set aside, identify as our property and procure insurance
  satisfactory to us on any returned or repossessed merchandise or other
  goods which  by sale resulted in Receivables theretofore assigned to us
  ("Retained Goods").   All Retained Goods (and the proceeds thereof) shall
  be (A) held by you in trust  for us as our property; and (B) subject to a
  security interest in our favor as  security for the Obligations; and (C)
  disposed of only in accordance with our  express written instructions.
      (d)  Our Credit Risk, if any, on a Receivable shall immediately
  terminate without any action on our part in the event that (i) your
  customer  asserts a Dispute (regardless of merit) as a ground for
  non-payment of the  Receivable or returns or attempts to return the goods
  represented thereby, other  than as a result of the customer's inability
  to pay  such Receivable as to which  we have the Credit Risk hereunder;
  or (ii) any warranty as to the Receivable is  breached.  We may charge to
  your account at any time the purchase price of any  Receivable (or
  portion thereof) paid by us, as such purchase price is computed in
  accordance with paragraph 3 of this Agreement on which we do not then
  have the  Credit Risk, together with interest thereon from the due date
  of such Receivable  to the date of chargeback; such action on our part
  shall not be deemed a  reassignment of such Receivable and will not
  impair our rights thereto or security  interest therein, which will
  continue to be effective until all Obligations are  fully satisfied.
      (e)  All representations, warranties, covenants and agreements set  forth
  in the Credit Agreement relating in any manner to your Receivables in any
  way applicable to this Agreement are hereby incorporated by reference and
  made a  part hereof.
    Each of your invoices and all copies thereof shall bear a notice (in form
  satisfactory to us) that it is owned by and payable directly and only to
  us at  locations designated by us, and you shall furnish us with
  duplicate originals of  your invoices accompanied by a confirmatory
  assignment thereof.  Your failure to  furnish such specific assignments
  shall not diminish our rights.  You shall  procure and hold in trust for
  us and furnish to us at our request satisfactory  evidence of each
  shipment and delivery or rendition of services.  Each invoice  shall bear
  the terms stated on the customer's order, as submitted to us, whether  or
  not the order has been approved by us, and no change from the original
  terms of  the order shall be made without our prior written consent.  Any
  such change not so  approved by us shall automatically terminate our
  Credit Risk, if any, on the  Receivable arising from



  your performance of the order.  You will hold in trust for us and deliver
  to us  any payments received from your customers in the form received,
  and hereby  irrevocably authorize us to endorse your name on all checks

  and other forms of  payment.  Each payment made by a customer shall first
  be applied to Receivables,  if any, on which we have the Credit Risk, and
  the balance, if any, of such payment  shall be applied to other
  Receivables due from such customer.  You understand that  we shall not be
  liable for any selling expenses, orders, purchases, contracts or  taxes
  of any kind resulting from any of your transactions, and you agree to
  indemnify us and hold us harmless with respect thereto, which indemnity
  shall  survive termination of this agreement.
      (a)  This agreement shall remain in full force and effect until
  terminated as follows:
        (i) This agreement shall remain in full force and effect  unless either
  of us gives the other party hereto written notice of termination (by
  certified mail, return receipt requested) no less than ninety (90) days
  prior to  and effective as of January 31, 1996 or any January 31st
  thereafter; or
        (ii) Should any Event of Default as (defined and) more fully  set forth
  in the Credit Agreement occur; or should the Credit Agreement be
  terminated for any reason or the Term (as therein defined) thereof be at
  an end,  then in any of such events (each an "Event of Default"
  hereunder), we may  terminate this agreement at any time without notice.
      (b)  On the effective date of termination all Obligations shall  become
  immediately due and payable in full without further notice or demand.
  Our  rights with respect to Obligations owing to us, or chargeable to
  your account,  arising out of transactions having their inception prior
  to the effective date of  termination, will not be affected by
  termination.  Without limiting the foregoing,  all of our security
  interests and other rights in and to all Receivables, whether  then
  existing or arising thereafter (including assignments and remittance of
  payments), Retained Goods, credit balances, and any other property in our
  possession or in the possession of any parent, affiliate or subsidiary of
  ours and  any other security for the Obligations, whether coming into
  existence or into our  or their possession before, on or after the
  effective date of termination and all  proceeds thereof (collectively
  "Collateral") shall continue to be operative until  such Obligations have
  been fully and finally satisfied or you have given us an  indemnity
  satisfactory to us.
    As used herein
      (a)  "Receivables" means all amounts and all forms of obligations now  or
  hereafter owing to you (including but not limited to accounts,
  instruments,  contract rights, documents and chattel paper) and general
  intangibles; all  security therefor and guaranties thereof; all of your
  rights as an unpaid seller  of goods and your rights to goods sold which
  may be represented thereby (including  but not limited to your rights of

  replevin and stoppage in transit); all of your  books of account,
  records, files, and documents relating thereto and the equipment
  containing said books, records, files and documents; all of your rights
  under  insurance policies relating to the foregoing; the right to use the
  Trade Names in  connection with our rights with respect to the goods; and
  all proceeds of the  foregoing.
      (b)  "Obligations" means all amounts of any nature whatsoever, direct  or
  indirect, absolute or contingent, due or to become due, arising or
  incurred  heretofore or hereafter, arising under this or any other
  agreement, including  without limitation the Credit Agreement or any of
  the Other Documents therein  described, or by operation of law, now or
  hereafter owing by you or by any of your  subsidiaries or affiliates to
  us or to any parent, subsidiary or affiliate of  ours.  Said amounts
  include, but are not limited to, loans, debts and liabilities  heretofore
  or hereafter acquired by purchase or assignment from other present or
  future clients of ours.  Without limiting the foregoing, Obligations
  shall include  the amounts of all interest, commission, customer late
  payment charges and bank  related charges, costs, fees, expenses, taxes
  and all Receivables charged or  chargeable to your account hereunder,
  under said Credit Agreement, any of the  Other Documents, or under any
  other agreement now or hereafter in effect between  us.
      (c)  "Credit Risk" means the risk of loss resulting solely and
  exclusively from the financial inability of your customer to pay at
  maturity a  Receivable purchased hereunder.
      (d)     "Credit Agreement" shall have the meaning set forth in   the
  introductory paragraph of this Agreement.
  Any terms which are initially capitalized in this Agreement and which are
  not  defined herein, but which are defined in the Credit Agreement, shall
  have the  respective meanings set forth in the Credit Agreement, which
  definitions shall be  incorporated herein by reference and made a part
      (a)  All Obligations shall be paid at our office in New York, New  York.

      (b)  This agreement shall be governed by and construed according to  the
  laws of the State of New York.  All terms used herein, unless otherwise
  defined herein, shall have the meanings given in the New York Uniform
  Commercial  Code.
      (c)  Each of us expressly submits and consents to the exclusive
  jurisdiction of the Supreme Court of the State of New York, and the
  United States  District Court for the Southern District of New York, with
  respect to any  controversy arising out of or relating to this agreement
  or any supplement hereto  or to any transactions in connection therewith

  and hereby waives personal service  of the summons, complaint or other
  process or papers to be issued therein and  hereby agrees that service of
  such summons, complaint, process or papers may be  made by registered or
  certified mail addressed to the other party at the address  appearing
      (a)  Upon request you shall periodically furnish us with statements
  showing your financial condition and the results of your operations.  We
  may  during normal business hours have access to, and inspect, audit, and
  make extracts  from, all of your records, files and books of account, and
  we may charge your  account with the reasonable costs, fees or expenses
  incurred in connection  therewith.
      (b)  You shall perform all acts requested by us to perfect and  maintain
  our security interest and other rights in the Collateral.
      (c)  Failure by us to exercise any right, remedy or option under  this
  agreement or delay by us in exercising the same will not operate as a
  waiver; no waiver by us will be effective unless we confirm it in writing
  and  then only to the extent specifically stated.
      (d)  We may charge to your account, when incurred by us, the amount  of
  reasonable legal fees (including fees, expenses and costs payable or
  allocable to attorneys retained or employed by us) and other costs, fees
  and  expenses incurred by us in negotiating or preparing this agreement
  and any legal  documentation required by us or requested by you in
  connection with this  agreement or any amendments or supplements thereof,
  of in enforcing our rights  hereunder or in connection with the
  litigation of any controversy arising out of  this agreement, or in
  protecting, preserving or perfecting our interest in, any  Collateral,
  including without limitation all taxes assessed or payable with  respect
  to any Collateral, and the costs of all public record filings,
  appraisals and searches relating to any Collateral.  We may also charge
  to your  account our then standard price for furnishing to you or your
  designees copies  of any statements, records, files or other data
  (collectively "Reports")  requested by you or them other than Reports of
  the kind furnished to you and our  other clients on a regular, periodic
  basis in the ordinary course of our  business.  We may file Financing
  Statements under the Uniform Commercial Code  without your signature or,
  if we so elect, sign and file them as your agent.
      (e)  Our rights and remedies under this agreement will be cumulative  and
  not exclusive of any other right or remedy we may have hereunder or under
  the Uniform Commercial Code or otherwise.  Without limiting the
  foregoing, if we  exercise our rights as a secured party we may, at any
  time or times, without  demand, advertisement or notice, all of which you
  hereby waive, sell the  Collateral, or any part of it, at public or
  private sale, for cash, upon credit,  or otherwise, at our sole option
  and discretion, and we may bid or become  purchaser at any such sale,
  free of any right of redemption which you hereby  waive.  After
  application of all Collateral to your Obligations (in such order  and
  manner as we in our sole discretion shall determine), you shall remain

  liable to us for any deficiency.
      (f)  We shall have no liability hereunder (i) for any losses or  damages
  (including indirect, special or consequential damages) resulting from
  our refusal to assume, or delay in assuming, the Credit Risk, or any
  malfunction, failure or interruption of communication facilities, or
  labor  difficulties, or other causes beyond our control; or (ii) for
  indirect, special  or consequential damages arising from accounting
  errors with respect to your  account with us except due to our willful
  misconduct or our gross negligence.   Our liability for any default by us
  hereunder shall be limited to a refund to  you of any commission paid by
  you during the period starting on the occurrence  of the default and
  ending when it is cured or waived, or when this agreement is  terminated,
  whichever is earlier.
      (g)  This agreement cannot be changed or terminated orally and is  for
  the benefit of and binding upon the parties and their respective
  successors  and assigns.  This agreement supersedes and replaces the
  Factoring Agreement  previously in place between us.
      (h)  This agreement shall not be effective unless signed by you  below,
  and signed by us at the place for our acceptance.


  Very truly yours,
  AGREED TO on this 28th day of February, 1995.
  By: /s/_______________________
  Anthony R. Williams
  Title:Executive Vice President
  ACCEPTED at New York, New York, as of the above date.
  By: /s/_______________________
  Title: President
  1290 Avenue of the Americas
  New York, New York  10104