Agreement between Banker and Merchant for Advances against Assigned Accounts - Assignment of Accounts
Agreement made...............between...............
hereinafter called the "Banker" and..............thereinafter called the "Assignor."..............................
The parties hereto mutually covenant and agree as follows:-
1. The Assignor agrees to assign and transfer to the Banker during the continuance of this agreement all outstanding accounts as may be created in the Assignor's business. The
Banker agrees to procure funds and to advance to the Assignor
......per cent. of the face value of such accounts as may be accepted and approved by the Banker, less all discounts, pro-vided the Assignor shall in each instance deliver to the Banker accurate, original and duplicate invoices of the sales creating such outstanding accounts with the original Bills of Lading, shipping or express receipts or other evidence of shipment or delivery, and also an assignment of the account upon the form attached hereto. The Banker shall have............days after the receipt of said assigned accounts and original Bills of Lading, shipping or express receipts, within which to accept and approve such accounts and advance the funds thereon.
2. The Banker shall have the right to notify the debtors that said accounts have been transferred and are payable to the Banker and should any moneys on any account upon which advances have been made by the Banker be collected by the Assignor in whole or in part, the Assignor shall hold the same in trust for the Banker and shall immediately turn over to the Banker the identical original remittance or remittances.
3. The Assignor agrees to pay interest at the rate of six per cent. per annum on moneys advanced by the Banker to be computed from the time of such advance to the time of the actual repayment to the Banker.
4. In the event that any account be not paid to the Banker within............days after maturity, or, in the event that any debtor shall become insolvent, or make a general assignment or transfer of property, or should judgment be taken, or proceedings in bankruptcy be instituted against such debtor, then, the Assignor, upon demand of the Banker, shall pay to the Banker in cash or allow the Banker, if it so elects, to deduct from any balance which it may then or thereafter have on hand to the credit of the Assignor, all advances made on such accounts, together with the charges, expenses, interest and commission of the Banker as herein provided; or the Banker may at its option, transfer such account to an "Overdue Collateral Account," and all moneys thereafter collected thereon shall be retained by the Banker and credited to the Assignor, and the Assignor agrees to replace such accounts by new assigned accounts satisfactory to the Banker and such new accounts shall be held by the Banker in the place of and as security for the advances heretofore made on the original accounts.
5. The title to all merchandise which any debtor may return or refuse to accept is in the Banker. Should the Assignor have any merchandise returned to him, or not accepted, on any account assigned to the Banker, or should information be received by the Assignor of such return or non-acceptance, the Assignor shall immediately give notice to the Banker and the Banker shall thereupon have the option either to retain its title to the merchandise so returned or not accepted or to surrender the same to the Assignor upon receiving payment therefor in cash, or at the further option of the Banker to deduct the value of the goods returned or not accepted from any balance which the Banker may then or thereafter have on hand to the credit of the Assignor.
6. The Banker shall have the right to collect and receive all moneys; to give receipt therefor; to sue for or collect said accounts in its own name or in the name of the Assignor or otherwise, but without any liability for negligence for itself or any agent in the manner of collecting or handling any accounts. All and any expense incurred in the collection of accounts, together with the attorneys' fees and exchange on checks are to be charged to and paid by the Assignor.
7. The Banker shall have the right to compromise or settle with debtors where the amount of the invoices is in dispute or where claims for allowances may be made or where any debtor has failed to make payment when due; but before consummating the same, the Banker shall notify the Assignor, who shall thereupon be entitled to take a re-assignment of such account upon payment of the amount thereof to the Banker.
8. The Banker agrees to keep true and accurate records of the accounts assigned and true and correct records of the amounts owing on said accounts, the respective dates of maturity and the amounts paid thereon by the debtor and the Assignor shall be entitled to receive information from these records on request. The Banker further agrees to use its best endeavors to collect said accounts and to render to debtors proper bills and statements from time to time as may be necessary or advisable; to investigate into the financial standing and credit of the debtors and to furnish the Assignor, when requested, such confidential information as it may have, and the Banker further agrees to advise the Assignor whenever requested, regarding the conduct and policy of the Assignor's business.
9. In consideration of the said services, the Assignor agrees to pay to the Banker............per cent. on the aggregate in amount of the face value of all accounts assigned to and accepted by the Banker, but the Banker may, at its option, retain said commissions from any and all moneys of the Assignor in its hands.
10. The Banker shall have the right at any time during business hours to examine the books of account of the Assignor.
11. The Assignor agrees not to procure advances on any accounts from any source other than the Banker during the continuance of this agreement. The Assignor hereby guarantees the correctness and good faith of all accounts assigned and the payment of same.
12. The Banker agrees to remit to the Assignor all sums received by him on the collection of the aforesaid accounts after deducting all advances made thereon by the Banker together with the interest, commission, advances and charges as herein provided.
13. In the event of any misrepresentation of the Assignor as to any account assigned by the Assignor to the Banker in matters pertaining to this agreement,' or in the event of any violation by the Assignor of any of the provisions of this agreement or in case of failure or insolvency on the part of the Assignor, this agreement may be at once terminated by the Banker without notice and any and all claims against the Assignor by the Banker, shall, at the option of the Banker, immediately become due and payable.
14. It is agreed that if this account be discontinued for any reason, the Banker shall have the right to collect all moneys advanced, plus commission, interest, charges and expenses before paying the Assignor any equities.
15. The Banker shall have a general Banker's lien on all moneys, property or other collateral in its possession, for any and all indebtedness which may exist under this agreement. The word "debtor" in this agreement refers to the customers of the Assignor mentioned in the assigned accounts.
16. The term of this agreement shall be from the.......
day of................, 19.., to the..................day of................, 10.., Thereafter this agreement shall continue from year to year, unless written notice of election to discontinue shall be given sixty days prior to the expiration of any year, by either party to the other.
This contract shall be construed according to the law of the State of............
Assignment (In Connection With The Foregoing)
For value received, we do hereby sell, assign, transfer and set over to the Banker, his successors and assigns, the claims and account set forth on the reverse side hereof, and all our right, title and interest therein and to any and all of the merchandise therein described, and any and all the merchandise returned or unaccepted thereon. We do hereby covenant and guarantee that the said claim and account is a true and correct statement of an actual indebtedness incurred by the debtor therein named, upon the terms therein stated now outstanding and owing to the full amount thereof for merchandise actually sold and delivered to and accepted by said debtor; that no payments have been made on said account, that there are no defenses, counterclaims or offsets thereto; that the merchandise was at the time of the said sale owned by the undersigned, free from any lien or encumbrance, and that said claim and account is free from any lien or encumbrance except such as is held by the Banker pursuant to this instrument.
We hereby constitute and appoint said Banker, our true and lawful attorney irrevocable, in our name or otherwise but to his own use and benefit, to sell, assign, transfer, set over, compromise, pledge, discharge and collect the whole or any part of the said claim or account and the whole or any part of any merchandise that may be returned or unaccepted, and to receipt for and endorse in the name of the undersigned, any and all checks or remittances that may be made on account thereof, and for the said purposes to do all things necessary or advisable in the premises with full power of substitution, hereby ratifying and confirming all that the Banker or his substitute shall lawfully do hereunder.
Dated,.............................19..
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