AMOUNT OF ALL
SUCH ASSUMED ELIGIBLE VENDOR LIABILITY AND (II) TERMINATE THE OBLIGATION OF THE
SELLERS TO REPAY THE PURCHASE PRICE OF THE RELATED EQUIPMENT IN CONNECTION WITH
THE PRODUCT FINANCING BY PURCHASER PURSUANT TO CLAUSE (A) ABOVE.
(C)
VENDOR SERVICING.
PURCHASER AGREES TO
SERVICE AND ADMINISTER THE PAYMENT OF ELIGIBLE PURCHASE ORDERS TO THE APPLICABLE
AUTHORIZED SUPPLIER (THE "VENDOR SERVICES").
FOR THE AVOIDANCE OF DOUBT, THE
VENDOR SERVICES SHALL NOT INCLUDE ANY SERVICES (AS SUCH TERM IS DEFINED IN THE
MSA).
(D)
NO WARRANTY.
EACH OF THE SELLERS HEREBY
ACKNOWLEDGES AND AGREES THAT PURCHASER DOES NOT WARRANT ANY EQUIPMENT AND
PURCHASER SHALL NOT BE RESPONSIBLE FOR ANY EQUIPMENT THAT IS DEFECTIVE OR FAILS
TO CONFORM TO THE WARRANTIES EXTENDED BY THE AUTHORIZED SUPPLIER OR MANUFACTURER
OF SUCH EQUIPMENT.
(E)
UNAPPLIED CREDITS; VENDOR CREDITS, REBATES
AND DISCOUNTS.
EACH OF THE SELLERS HEREBY ACKNOWLEDGES AND AGREES THAT ANY AND
ALL (A) UNAPPLIED CREDITS AND (B) REBATES ARE AND SHALL BE THE PROPERTY OF
PURCHASER.
(F)
FINANCE AND SERVICING FEE.
PURCHASER
SHALL BE ENTITLED TO A FINANCE AND SERVICING FEE (THE "FINANCE AND SERVICING
FEE") IN RESPECT OF THE PRODUCT FINANCING AND VENDOR SERVICES PROVIDED BY
PURCHASER UNDER THIS SECTION 3 DURING EACH MONTH IN AN AMOUNT EQUAL TO THE
PRODUCT OF (Y) 1 MINUS THE APPLICABLE PERCENTAGE SET FORTH ON THE FEE GRID BASED
UPON THE GROSS PROFIT MARGIN AND THE DSO FOR EACH MONTH TIMES (Z) THE AGGREGATE
GROSS PROFIT FOR SUCH MONTH; PROVIDED, THAT, NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED HEREIN, IN THE EVENT
12
THE LIBOR RATE EXCEEDS 3.50% DURING ANY MONTH, THE APPLICABLE PERCENTAGE SET
FORTH ON THE FEE GRID FOR PURPOSES OF CALCULATING THE FINANCE AND SERVICING FEE
FOR THE IMMEDIATELY SUCCEEDING MONTH SHALL BE DECREASED BY THE AMOUNT BY WHICH
THE LIBOR RATE EXCEEDED 3.50%.
IN ADDITION TO THE PAYMENT OF THE FINANCE AND
SERVICING FEE, AS CONSIDERATION FOR THE PRODUCT FINANCING AND VENDOR SERVICES
PROVIDED BY PURCHASER UNDER THIS SECTION 3, THE SELLERS SHALL ALSO PROVIDE
CERTAIN SERVICES (AS DEFINED UNDER THE MSA) IN CONNECTION WITH THE PURCHASED
ASSETS PURSUANT TO THE MSA.
(G)
FEE PARAMETER.
THE FEE GRID HAS BEEN
CALCULATED BASED ON THE PARAMETERS CONTAINED IN THE TABLE IMMEDIATELY BELOW (THE
"FEE PARAMETERS").
IF, AT ANY TIME, THE ACTUAL VALUES DEVIATE FROM THOSE IN THE
"FORECAST LEVEL" COLUMN BY MORE THAN THE AMOUNT SPECIFIED IN THE "ACCEPTABLE
RANGE" COLUMN, PURCHASER, IN ITS ELECTION, MAY ELECT TO TERMINATE THIS AGREEMENT
IN ACCORDANCE WITH SECTION 11 OR MAY RE-OPEN NEGOTIATIONS REGARDING THE AMOUNT
AND CALCULATION OF THE FINANCING AND SERVICING FEE BY PROVIDING THE SELLER
PARENT WITH NOTICE OF ITS DESIRE TO RE-OPEN NEGOTIATIONS (SUCH NOTICE, THE
"RENEGOTIATION NOTICE").
EACH OF THE SELLERS AND PURCHASER AGREES TO CONDUCT
SUCH NEGOTIATIONS, IF ANY, IN GOOD FAITH.
Parameter
Forecast Level
Acceptable Range
Receivables and Inventory DSO (including Vendor Receivables)
70 days
plus 15 days
Revenue
$4,000,000 per Month
not less than $2,000,000 per Month averaged over trailing 3-Month period
(H)
PAYMENT AND SETTLEMENT OF PURCHASE