exv10w17



 



Exhibit 10.17

Orbian Discount Service



Supplier Service Activation Package

Orbian System Release 4.5

Document Version 1.3


This document forms part of Orbian’s policies and procedures. All defined terms
used in this document shall have the meanings given to them in the Service
Agreement, except where they are re-defined in this document or where their
meanings must, necessarily, be varied by the context in which they arise in
this document. In the event of conflict between this document and the Service
Agreement, the Service Agreement shall control.



Except as permitted by the Service Agreement, this document must not be
disclosed outside of your organization and you are not authorized to duplicate
or distribute it (whether electronically or otherwise) in whole or in part.




			
	 
	 	 
	Orbian Policies & Procedures

© Orbian 2000 Confidential and Proprietary. All rights reserved.
	 	R4.5 V1.3

Page 1 of 2







 









 








ORBIAN DISCOUNT AGREEMENT



Dated as of June 18,
2004, between Motorcar Parts of America, Inc., a New York corporation, whose address
is 2929 California Street, Torrance, California 90503 (“Supplier”), and Orbian Corp., a Delaware
company (“Orbian”), (collectively, the “Parties”).




Background





	A.	 	From time to time, Supplier enters
into commercial trade transactions
with various buyers (each, a “Buyer”)
for the sale of goods and/or services,
resulting in accounts receivable owed
by the respective Buyers to Supplier.
Such accounts receivable represent the
Buyers’ payment obligations as
specified in the Payment Notification
(“Receivables”).






	B.	 	To facilitate the processing of
such Receivables, Supplier and Buyers
intend to utilize a certain
computerized settlement system,
including related services, equipment
and software (collectively, the
“Orbian System”).






	C.	 	From time to time, Supplier wishes
to sell to Orbian, and Orbian wishes
to purchase from Supplier, the
Receivables.




NOW, THEREFORE, in consideration of the
mutual covenants, terms, conditions,
representations and warranties contained
herein, and other good and valuable
consideration the receipt and sufficiency
of which is hereby acknowledged, Supplier
and Orbian agree as follows:



1. Definitions.



In this Agreement:



“Agreement” means this Discount Agreement, as
such may be amended from time to time in
accordance with its terms.



“Business Day” means a day on which The
Federal Reserve Bank of New York is open for
business.



“Discount” means the non-recourse purchase by
Orbian and the simultaneous irrevocable sale
by Supplier of Receivables at a price that is
equal to the Discount Proceeds and is
calculated as set out in this agreement.



“Discount Proceeds” means the amount of the
Receivable less the applicable fees and
charges specified in the attached Fee
Schedule.



“Equipment” means all equipment provided by or
on behalf of Orbian for the purpose of
accessing or using the Orbian System,
including all authentication products.



“Licensed Resources” means the Equipment,
Software and Orbian’s Policies and Procedures.



“Payment Notification” means, with respect to
a Receivable, the notification sent to the
Supplier through the Orbian System, notifying
the Supplier that Buyer has instructed Orbian
to make payment from Buyer’s account of a
specified amount on a specified date in full
payment of such Receivable.



“Policies & Procedures” means all tangible
printed information (including any in
electronic form) provided by or on behalf of
Orbian in connection with use of the Orbian
System.



“Software” means all software, programming or
object code provided by Orbian to Buyer for
utilizing a computer or like device to use the
Orbian System.



2. License Grant. Orbian grants Supplier a
non-exclusive, nontransferable license for the
duration of this Agreement to access and use
the Orbian System and the Licensed Resources
solely for the purposes contemplated by this
Agreement and subject to the terms and
conditions of this Agreement. Such license
shall terminate upon termination of this
Agreement. Orbian, its parent, subsidiaries,
affiliated companies, assigns and licensors
retain title to, and ownership of all
proprietary rights in the Licensed Resources
(including but not limited to copyright,
patent and trademark rights as well as
revisions, upgrades, updates, derivative works
and other improvements to the Orbian System).
All such rights are reserved, except that
Supplier may use the Orbian System, including
the Licensed Resources, only as expressly
granted in this Agreement. Supplier agrees
that in the event a claim is asserted for
infringement of the proprietary rights of a
third party, it will cooperate with Orbian in
connection with defending against that claim.



3. Usage. Supplier agrees to comply with all
instructions for the Licensed Resources and
all updates/upgrades provided by Orbian.
Supplier is permitted to print copies of
reasonable extracts from the Licensed
Resources and to save reasonable copies on
their hard drive solely for the purpose of
exercising their respective rights and
fulfilling their obligations under this
Agreement. All other copying, distribution or
commercial use of any of the Licensed
Resources is strictly forbidden. Supplier
agrees that it will not alter or modify any
Licensed Resources or attempt to reverse
compile, reverse engineer, reverse assemble or
disassemble the Software.



4. Security. The parties agree to use the
Orbian System to send all communications under
this Agreement. Supplier undertakes to
implement appropriate security relating to use
by Supplier of the Orbian System. Orbian shall
be entitled to rely upon a communication by
Supplier irrespective of any error or fraud
contained in the communication or the identity
of the individual who sent the communication.
Supplier knowingly and voluntarily waives the
right to contest the validity or
enforceability of such communication.



5. System Availability. Supplier acknowledges
and agrees that: (i) there will be downtime
from time to time when the Orbian System
cannot be accessed; and (ii) Supplier is
responsible for providing and maintaining, and
Orbian has no liability or responsibility in
respect of, equipment not supplied by or on
behalf of Orbian, or utility services that
Supplier utilizes as a result of its
participation in the Orbian System and
maintaining a link to the Orbian System.



6. Offer for Discount. Supplier may either at
its option, or automatically, (depending on
the option selected) offer to sell to Orbian
the Receivables (a “Discount Offer”) at a
price equal to the Discount Proceeds.



7. Acceptance of Discount Offer. Orbian, at
its option, may accept Supplier’s Discount
Offer by executing a Discount and depositing
the Discount Proceeds in Supplier’s designated
bank account. If Orbian has not deposited the
Discount Proceeds with respect to a Receivable
before the close of business on the second
Business Day following its receipt of the
Discount Offer (unless otherwise notified in
writing by Orbian of an extension, not to
exceed 2 Business Days), the Discount Offer
shall be deemed not accepted by Orbian and
rescinded by Supplier.



8. Net Settlement. Unless Orbian has executed
a Discount, Orbian. will make payment to
Supplier’s designated bank account (less
applicable fees and charges as specified in
the attached Fee Schedule) on the
payment date specified in the Payment
Notification solely from funds deposited
therein by the relevant Buyer.



9. Purchase of Receivables. Supplier hereby
agrees that, simultaneously with the Discount,
Supplier will be deemed to have (i)
transferred to Orbian all of Supplier’s
present and future right, title and interest
in, to and under the Receivables to which such
Discount Offer relates, and (ii) provided
notice to Buyer, through the Orbian System, of
Supplier’s designation of Orbian as the
business entity to receive payment of the
amount specified in Buyer’s Payment
Notification with respect to such Receivables.
No further writing shall be necessary to
evidence such transfer of ownership.
Notwithstanding the foregoing, Supplier agrees
to sign all such other documents, and take all
such further actions, as Orbian may reasonably
request from time to time to evidence this
transfer of ownership. Supplier hereby agrees
that its obligations under this Agreement and
any Discount Offers issued by it shall not be
affected by the invalidity, unenforceability,
existence, performance or non-performance of
the relevant underlying transaction, which
(and any liability for which) shall be between
Supplier and the relevant Buyer only. It is
the intention of Supplier and Orbian that each
purchase and sale of Receivables shall
constitute a true sale, which sale will be
absolute and irrevocable and provide Orbian
with the full benefits of ownership of such
Receivables. The Discount does not constitute
and is not intended to result in an assumption
by Orbian of any obligation of Supplier or any
other person arising in connection with the
Receivables or any other obligations of
Supplier.




			
	 
	 	 
	Orbian Discount Agreement R4.5 V1.3
	 	Page 1 of 2








 










 





10. Representations and Warranties. Supplier
hereby agrees that, by issuing a Discount
Offer, Supplier will be deemed to have made
each of the following representations and
warranties, both as of the date of the
Discount Offer and as of the date such offer
is accepted by Orbian: Each such Receivable
(i) is the exclusive property of Supplier,
free and clear of all security interests,
liens or claims of any kind; (ii) is based on
a sale of goods and/or services that have been
delivered to and accepted by the relevant
Buyer, and complies with all applicable legal
requirements; (iii) to the best of Supplier’s
knowledge, constitutes a valid, binding and
unconditional obligation of the relevant Buyer
to pay the full amount of such Receivable,
free of any defense, set-off or counterclaim;
and (iv) to the best of Supplier’s knowledge,
is not disputed by Buyer or any other person,
and is not the subject of any legal or
arbitral proceeding. Supplier agrees that
Orbian, at its discretion, may submit UCC
filings to secure a perfected ownership of all
or any part of the Receivables purchased by
Orbian.



11. Representations, Warranties and Covenants
of Supplier. Supplier warrants to Orbian that
the underlying transactions to each Receivable
are genuine and lawful commercial trade
transactions arising in the ordinary course of
business, for the sale and purchase of goods
and/or services. Supplier shall not use the
Orbian System for investment or arbitrage
functions or purposes, or for any money
laundering purpose, or in contravention of any
law or regulation. Supplier shall comply with
all relevant laws and regulations applicable
to this Agreement and transactions conducted
using the Orbian System including, without
limitation, all applicable sanctions and
export control laws. Supplier agrees that its
name or other identifiers may be made
available to clients or prospects of Orbian
for the purpose of furthering the transaction
of business through the Orbian System.



12. Mutual Representations, Warranties and
Covenants of the Parties. Except as expressly
provided in this Agreement, no representation,
warranty, term or condition, express or
implied, statutory or otherwise, is given or
assumed by Orbian in respect of (i) the
Licensed Resources, (ii) Supplier’s underlying
commercial transactions, or (iii) the goods or
services to which such underlying transactions
relate (regardless of any assistance that
Orbian may, in its sole discretion, provide to
Supplier). All such representations,
warranties, terms and conditions are excluded,
except to the extent that this exclusion is
prohibited by law. Without limiting the
foregoing, Supplier understands that Orbian is
not giving any representation or warranty as
to condition, performance, fitness for
purpose, suitability, merchantability, quality
or otherwise, or of non-infringement, except
as expressly provided herein.



13. Fees and Charges. Supplier shall pay
Orbian such fees, commissions and other
amounts with respect to the services of Orbian
as detailed in the attached Fee Schedule.



14. Information, Data and Access. Supplier
shall maintain and implement administrative
and operating procedures, and keep and
maintain all documents, books, records and
other information reasonably necessary or
advisable for the collection of all
Receivables hereunder, and with respect to
compliance of the underlying commercial
transactions with applicable laws and
regulations. Supplier shall retain each record
required to be maintained under this clause 14
during the term of this Agreement and, if
applicable, for such longer period as may be
required by law or regulation. Supplier shall
make such procedures, documents, books,
records and other information available to
Orbian and its agents, representatives and
relevant authorities upon request, and shall
allow copies or extracts thereof to be made as
Orbian deems necessary. To the extent that
Orbian has purchased Receivables pursuant to
clause 9, Supplier (i) will mark its master
data processing records relating to such
Receivables with a legend properly evidencing
that Orbian has purchased such Receivables as
provided in this Agreement, and (ii) at
Orbian’s request, will transfer possession to
Orbian of all receipts, order slips,
acceptances, and other records or
documentation in Supplier’s possession
pertaining to the sale of goods and/or
services to which such Receivables relate.
Supplier shall, at its
expense, timely and fully perform and comply
with all material provisions required to be
observed by it under the contracts related to
the Receivables.



15. Waivers; Severability. No failure or delay
in exercising any right or remedy under this
Agreement will constitute a waiver of that
right. If any provision of this Agreement is
or becomes illegal, invalid or unenforceable
under any applicable law, the remaining
provisions of this Agreement will remain in
full force and effect.



16. Limitation on Liability. In the absence of
gross negligence or willful misfeasance on its
part in the performance of its duties
hereunder, Orbian shall not be liable for any
action taken, suffered, or omitted, or in
accordance with any direction or request of
the Supplier. Neither Supplier nor Orbian
shall be liable to the other for any indirect,
exemplary, special, punitive, incidental, or
consequential damages or loss, even if advised
of the possibility of such loss or damage.
Neither Orbian nor Supplier shall be liable
for any claims, liabilities, or expenses due
to forces beyond their respective reasonable
control, including without limitation strikes,
work stoppages, acts of war or terrorism,
insurrection, revolution, nuclear or natural
catastrophes or acts of God, and
interruptions, loss or malfunctions of
utilities, communications or computer
(software and hardware) services.



17. No Implied Duties, No Third Party
Beneficiaries. Orbian owes no duties or
obligations other than for the purpose stated
in this agreement, and owes no duties or
obligations to any person or entity that is
not a Party to this Agreement. Nothing herein,
express or implied, shall give to any Person,
other than the Supplier and Orbian, as well as
their respective successors and assigns to the
extent permitted under this Agreement, any
benefit of any legal or equitable right,
remedy or claim hereunder.



18. No Assignment. Neither Supplier nor Orbian
may assign any of its rights or obligations
under this Agreement without the prior written
consent of the other Party; provided, however,
that Orbian may assign its rights and
obligations under this Agreement in whole or
in part to any of its subsidiaries or
affiliates, or to any corporation into which
Orbian may be merged or converted or with
which it may be consolidated, or any
corporation resulting from any merger,
conversion or consolidation to which Orbian
shall be a party upon written notice to
Supplier.



19. Termination. Either party may terminate
this Agreement upon prior written notice to
the other with immediate effect upon 30 days’
written notice. However, any party may
terminate this Agreement immediately upon
notice of material breach of this Agreement by
such other party. Upon notice of termination
of this Agreement, Supplier shall no longer
issue Discount Offers to Orbian and Orbian
will no longer accept Discount Offers from the
Supplier.



20. Survival. If this Agreement is terminated
in accordance with clause 19, then this
Agreement shall become null and void and of no
further force and effect, except that all
confidentiality, security, indemnity, payment
and reimbursement obligations and all
limitation of liability provisions contained
in this Agreement shall survive and remain in
full force and effect notwithstanding such
termination and the payment of all amounts
owing hereunder.



21. Governing Law; Jurisdiction, Waiver of
Jury Trial This Agreement is governed by the
laws of the State of New York, United States
of America. The courts of New York have
non-exclusive jurisdiction to hear any dispute
arising out of or in conjunction with this
Agreement and all parties irrevocably submit
to the jurisdiction of such courts. The
Parties waive any rights they may have to a
jury trial of any claim or cause of action
based on or arising from this Agreement.



22. Notices. Any notice to be given under this
Agreement shall be sent to the address
specified below. This Agreement may not be
modified except in writing and signed by the
Parties. This Agreement may be executed in
counterparts, each of which shall be an
original and all of which shall constitute the
same instrument.



IN WITNESS WHEREOF, each of the Parties hereto has executed this Agreement as
of the date and year first above written.



	 	 	 	 	 	 	 
	For

	 	Motorcar Parts of America, Inc.
	 	For
	 	Orbian Corporation
	 
	 	 	 	 	 	 
	By:

	 	/s/ CHARLES YEAGLEY 	 	By:	 	/s/ BILL FOLLINI 
	

	 	
 
	 	 	 	
 
	Name:

	 	Charles Yeagley 	 	Name:	 	Bill Follini 
	

	 	
 
	 	 	 	
 
	Title:

	 	Chief Financial Officer 	 	Title:	 	Senior Vice President, Strategic
Marketing 
	

	 	
 
	 	 	 	
 
	Address:

	 	 	 	Address:
	 	200 Connecticut Avenue, Norwalk, CT 06854
	

	 	
 	 	 	 	 
	Orbian Discount Agreement R4.5 V1.3	 	 	 	Page 2 of 2







 









 






PRICING SCHEDULE




This Pricing Schedule shall be incorporated by reference and made a part of the
Orbian Discount Agreement. The following fees and charges are valid for a
period of 36 months from the date of this Agreement. Orbian reserves the right
to modify this Pricing Schedule upon 30 days written notice.



“Payment Fee” is $10 for each payment credited to the Supplier’s designated
bank account. Payment of each Usage Fee shall be effected by Orbian
transferring to Supplier’s designated bank account the amount indicated in the
Payment Notification, net of the Payment Fee. Orbian will waive the Payment Fee
for any Discount Offer accepted by Orbian.



“Discount Transaction Fee” of $5 will be charged for each Discount. The
Discount Transaction Fee will be waived for all Discounts resulting from
automatically generated Discount Offers



“Discount
Charge” for each Discount is defined as the Payment Amount multiplied
by the Discount Rate, where:




“Payment Amount” means the face amount of the Receivables in the Discount
Offer that is due from a Buyer on the specified date, as contained in the
Payment Notification.




“Discount Rate” means the rate percent per annum calculated as the sum of
the Spread and the LIBOR rate prevailing on that day multiplied by the
Discount Period and divided by 360.




Spread – The Spread is 1.50 % per annum.




LIBOR – “LIBOR” refers to the London Inter Bank Offered Rate as published
daily by the British Banking Association. The LIBOR rate(s) applied will
correspond to the period equivalent to the Payment Due Date(s) of the
Payment Instruction(s) discounted.




Discount Period means the period starting from (and including) the date
two (2) Business Days after the Discount Offer Date until (and excluding)
the Payment Due Date.




Discount Offer Date means the day that the Orbian System accepts and
processes each Discount Offer.




Payment Due Date means the later of: (i) the date of payment by a Buyer
of the Payment Amount as specified in the Payment Notification, or (ii)
the date two (2) Business Days after receipt of the Payment Notification.




Examples:




Indicative Discount Rate (for example purposes only) – At a 6
month LIBOR rate of 1.16% per annum, as was quoted by the British
Banking Association on October 1, 2003 and published in the Wall
Street Journal on October 2, 2003, the Discount Rate was 2.66 %
per annum.




Indicative Discount Charge (for example purposes only) – Assuming
a Discount Rate of 2.66% per annum, a Discount Period of 178 days
and a Payment Amount of $100,000.00, the Discount Charge would be
$1,315.22 (1.32%) and the Discount Proceeds would be $98,684.78
(98.68%).




$100,000 x (1.16% + 1.50%) x 178 / 360 = $1,315.22




$100,000  -  $1,315.22 = $98,684.78



	 	 	 
	Orbian Discount Agreement - Fee Schedule R4.5 V1.3

	 	Page 1 of 1