EXHIBIT 10.66
PURCHASE AND SALE AGREEMENT
1. ASSIGNEMENT. Prestige Capital Corporation ("Prestige") hereby buys and
▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇.▇▇▇ Corp.
("Seller") hereby sells, transfers and assigns all of Seller's right, title
and interest in and to those specific accounts receivable owing to Seller
as set forth on the assignment forms provided by Prestige (the
"Assignments") together with all rights of action accrued or to accrue
thereon, including without limitation, full power to collect, ▇▇▇ for,
compromise, assign or in any other manner enforce collection thereof in
Prestige's name or otherwise. (All of Seller's accounts receivable and
contract rights which are presently or at any time hereafter assigned by
Seller, and accepted by Prestige, are collectively referred to as the
"Accounts".)
2. DISCOUNT. Prestige's purchase of the Accounts from Seller is at a discount
fee of TEN percent (10 %) from the face value of each Account.
3. RESERVE. Upon Prestige's receipt and acceptance of each Assignment,
Prestige shall pay to Seller SEVENTY-FIVE percent (75 %) of the net face
value of the Accounts therein described (the "Down Payment"). Prestige will
hold in reserve the difference between the Purchase Price (hereinafter
defined) and the Down Payment (the "Reserve") and will pay to Seller the
Reserve, less any sums due Prestige hereunder, on the Friday following the
week in which all Accounts set forth on the applicable Assignment have been
collected in good funds, charged back and/or deemed collected by Prestige
due to an account debtor's (hereinafter defined) insolvency. For purpose of
this Agreement, the term "Purchase Price" shall mean the net face value of
Accounts, less: Prestige's discount fee described in paragraph 2 above;
returns, credits, allowances and discounts on the shortest or, at
Prestige's option, on alternative terms of sale offered by Seller to
account debtors; and less all other sums charged or chargeable to Seller's
accounts.
4. REBATES. As on inducement to Seller to facilitate the prompt payment of the
Accounts from Seller's customers ("account debtor"), Prestige agrees to
return to Seller a rebate of SIX & 1/4 percent (6.25 %) if the Accounts are
paid to Prestige within 30 days, a rebate of FIVE & 1/4 percent (5.25 %) if
the Accounts are paid to Prestige within 45 days, a rebate of FOUR & 1/4
percent (4.25 %) if the Accounts are paid to Prestige within 60 days, a
rebate of TWO & 1/4 percent (2.25 %) if the Accounts are paid to Prestige
within 90 days.
5. WARRANTIES, REPRESENTATIONS AND COVENANTS. As an inducement for Prestige's
entering into this Agreement and with full knowledge that the truth and
accuracy of the warranties, representations and covenants in this Agreement
are being relied upon by Prestige instead of the delay of a complete credit
investigation, Seller warrants, represents and covenants that:
(a) Seller is properly licensed and authorized to operate the business
of software development;
(b) Seller is the sole and absolute owner of the Accounts and has the
full legal right to make said sale, assignment and transfer;
(c) The correct amount of each Account will be set forth on the
Assignments;
(d) Each Account is an accurate and undisputed statement of
indebtedness from an account debtor for a sum certain, without
offset of counterclaim and which is due and payable in ninety days
or less;
(e) Each Account is an accurate statement of a bona fide sale, delivery
and acceptance of merchandise or performance of service by Seller
to an account debtor;
(f) Seller does not own, control or exercise dominion in any way
whatsoever, over the business of any account debtor;
(g) All financial records, statements, books or other documents shown
to Prestige by Seller at any time either before or after the
signing of this Agreement are true and accurate;
(h) Seller will not under any circumstance or in any manner whatsoever,
interfere with any of prestige's rights under this Agreement;
(i) Seller has not and will not, at any time, permit any lien, security
interest or encumbrance to be created upon any of its accounts
receivable and/or its inventory without the prior written consent
of Prestige;
(j) Seller will not change or modify the terms of the Accounts with any
account debtor unless Prestige first consents in writing;
(k) Seller will notify Prestige in writing in advance of: any change in
Seller's place of business; Seller having or acquiring more than
one place of business; any change in Seller's chief executive
officer; and/or any change in the office or offices where Seller's
books and records concerning accounts receivable are kept;
(l) Seller will immediately notify Prestige of any proposed or actual
change of the Seller's and/or any account debtor's identity, legal
entity or corporate structure.
(m) All invoices will state plainly on their face that the Accounts
represented thereby have been sold and assigned to Prestige and are
payable only and directly to Prestige; and
(n) No Account shall be on a ▇▇▇▇-and-hold, guaranteed sale,
sale-and-return, sale on approval, consignment or any other
repurchase or return basis.
The warranties, representations and covenants contained in this
paragraph 5 shall be continuous and be deemed to be renewed each ▇▇▇▇
▇▇▇▇▇▇ assigns Accounts to Prestige. Notwithstanding the provisions
contained in paragraph 6 of this Agreement, Prestige shall have
recourse against the Seller in the event that any of the warranties,
representations and covenants set forth in this paragraph 5 are
breached.
6. NO RECOURSE. Prestige shall have recourse against Seller in all instances
except if payments are not received due to the "Insolvency" of an account
debtor within 120 days of invoice date. For purposes of the foregoing,
Insolvency shall be deemed to have occurred only when: (a) a voluntary or
involuntary bankruptcy proceeding for the relief of an account debtor under
either Chapter 7 or Chapter 11 shall have instituted in a United States
Bankruptcy Court; (b) a receiver is appointed for the whole or any part of
the property of an account debtor; (c) an account debtor's assets shall
have been sold under a writ of execution or attachments, or a writ of
execution shall have been returned unsatisfied; (d) an account debtor shall
have absconded; or (e) an account debtor's assets shall have been sold
under levy by any taxing authority or by a landlord.
7. CHARGE-BACK. In the event that any Account is not paid within 100 days of
invoice date for any reason whatsoever (other than as a result of a account
debtor's Insolvency). Including, without limitation, any alleged defense,
counterclaim, offset, dispute or other claim (real or merely asserted)
whether arising from or relating to the sale of goods or rendition of
services or arising from or relating to any other transaction or
occurrence, then in any such event Prestige shall have the right to
chargeback such Account to Seller. No chargeback shall be deemed a
reassignment to Seller of the Account involved. Seller acknowledges that
all amounts chargeable to Seller's account under this Agreement shall be
payable by Seller on demand.
8. NOTICE OF DISPUTE. Seller must immediately notify Prestige of any disputes
between any account debtor and Seller.
9. SETTLEMENT OF DISPUTE. Prestige may, at its option, settle any dispute with
any account debtor. Such settlement does not relieve Seller of any of its
obligations under this Agreement.
10. SOLE PROPERTY. Once Prestige has purchased the Accounts, the payment from
account debtors relative to the Accounts is the sole property of Prestige.
Any interference by Seller with this payment will result in civil and/or
criminal liability.
11. SECURITY INTEREST. As a further inducement for Prestige to enter into this
Agreement, and as security for the prompt performance, observance and
payment of all obligations owing by Seller to Prestige herein, Seller
hereby grants to Prestige a continuing security interest in and lien upon
the following (herein collectively referred to as the "Collateral"): all
accounts, instruments, documents, chattel paper and general intangibles (as
such terms are defined in the Uniform Commercial Code), whether now owned
or hereafter created or acquired by Seller, wherever located, and all
replacements and substitutions therefore, accessions thereto, and products
and proceeds thereof, and all property of Seller at any time in Prestige's
possession.
12. FINANCING STATEMENTS. Seller will, at its expense perform all acts and
execute all documents requested by Prestige at any time to evidence,
perfect, maintain and enforce Prestige's security interest and other rights
in the Collateral and the priority thereof. Upon request, at any time and
from time to time, Seller will execute and deliver to Prestige one or more
UCC financing statements (in form and substance satisfactory to Prestige
and its counsel).
13. HOLD IN TRUST. Seller will hold in trust and safekeeping, as the property
of Prestige and immediately turn over to Prestige, the identical check or
other form of payment received by Seller if payment on the Accounts comes
into Seller's possession. Should Seller come into possession of a check
comprising payments owing to both Seller and Prestige, Seller shall turn
over said check to Prestige. Thereafter, Prestige will refund Seller's
portion, if any, to Seller.
14. FINANCIAL RECORDS. Seller will furnish to Prestige financial statements and
such other information as is, from time to time, requested by Prestige.
15. BOOK ENTRY. Seller will immediately, upon the sale of the Accounts, make
the proper entry on its books and records disclosing the absolute sale of
the Accounts to Prestige.
16. POWER OF ATTORNEY. In order to implement this Agreement, Seller irrevocably
appoints Prestige its special attorney in fact or agent with power to:
(a) Strike out Seller's address on any correspondence to any account
debtor and put on Prestige's address;
(b) Receive and open all mail addressed to Seller via Prestige's
address;
(c) Endorse the name of Seller or Seller's trade name on any checks or
other evidences of payment that may come into the possession of
Prestige in connection with the Accounts;
(d) In Seller's name, or otherwise, demand, ▇▇▇ for, collect any and
all monies due in connection with the Accounts; and
(e) Compromise, prosecute or defend any action, claim or proceeding
relative to the Accounts;
The authority granted to Prestige shall remain in full force and effect
until the Accounts are paid in full and the entire indebtedness of Seller
to Prestige is discharged.
17. NOTIFICATION; VERIFICATION OF ACCOUNTS
(a) Without in any way limiting the terms and provisions of paragraph 5
(m) hereinabove, Prestige may at any time and from time to time, in
its sole discretion, notify any account debtor to make payment on
any of Seller's open invoices to Prestige; and
(b) Prestige may at any time verify the Accounts utilizing an audit
control company, any agent of Prestige or any other means deemed
appropriate by Prestige.
18. NO ASSUMPTION. Nothing contained in this Agreement shall be deemed to
impose any duty or obligation upon Prestige in favor of any account debtor
and/or any other party in connection with the Accounts.
19. FUTURE ASSIGNMENTS. Seller may from time to time, at Seller's option, sell,
transfer and assign different Accounts to Prestige. The future sale of any
Accounts shall be subject to and governed by this Agreement and such
Accounts shall be identified by separate and subsequent Assignments.
20. DISCRETION. Nothing contained in this Agreement shall be construed to
impose any obligation upon Prestige to purchase Accounts from Seller.
Prestige shall at its sole discretion determine which Accounts it shall
purchase. Further, Prestige shall have the absolute right at any time to
cease accepting any further assignments from Seller.
21. LEGAL FEES: EXPENSES. Seller will pay on demand any and all collection
expenses and reasonable attorneys' fees that Prestige incurs in the event
it should become necessary for Prestige to enforce its rights under this
Agreement. In addition, Seller will pay on demand all costs and expenses
incurred by Prestige in connection with the preparation, execution and
delivery of this Agreement and any supplement or modification thereof, and
in any way relating to the transactions contemplated by this Agreement,
including, without limitation, all reasonable attorneys' fees, Federal
Express costs (or similar expenses), wire transfer costs, certified mail
costs, facsimile transmission costs and lien search costs.
22. BINDING ON FUTURE PARTIES. This Agreement shall inure to the benefit of and
is binding upon the heirs, executors, administrators, successors and
assigns of the parties hereto, except that Seller may not assign or
transfer any or all of its rights and obligations under this Agreement to
any party without the prior written consent of Prestige.
23. WAIVER: ENTIRE AGREEMENT. No failure or delay on Prestige's part in
exercising any right, power or remedy granted to Prestige herein, will
constitute or operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right set forth herein. This
agreement contains the entire agreement and understanding of the parties
hereto and no amendment, modification or waiver of, or consent with respect
to, any provision of this Agreement, will in any event be effective unless
the same is in writing and signed and delivered by Prestige.
24. NEW JERSEY LAW. This agreement shall be deemed executed in the State of New
Jersey and, in all respects, shall be governed and construed in accordance
with the laws of the State of New Jersey.
25. INDEMNITY. Seller shall hold Prestige harmless from and against any action
or other proceeding brought by any account debtor against Prestige arising
from Prestige's collecting or attempting to collect any of the Accounts.
26. TERM. This Agreement will remain in effect until September 1, 2001 (the
"Term"). Thereafter, the Term will be automatically extended for successive
periods of three (3) months each unless either party provides the other
with a written notice of cancellation at least sixty (60) days prior to the
expiration of the initial Term or any renewal Term; provided, however,
Prestige may cancel this Agreement at any time upon sixty (60) days notice
to Seller. In the event of a breach by Seller of any item or provision of
this Agreement or upon Seller's Insolvency or the Insolvency of any
guarantor of Seller's obligations herein, Prestige shall have the right to
cancel this Agreement without notice to Seller, and all of Seller's
obligations to Prestige herein shall be immediately due and payable. In the
event of cancellation, the provisions of this Agreement shall remain in
full force and affect until all of the Accounts have been paid in full.
27. INVALID PROVISIONS. If any provision of this Agreement shall be declared
illegal or contrary to law, it is agreed that such provision shall be
disregarded and this Agreement shall continue in force as though said
provision had not been incorporated herein.
28. EFFECTIVE. This Agreement shall become effective when it is accepted and
executed by an authorized officer of Prestige.
29. JURY WAIVER. The parties hereto hereby mutually waive trial by jury in the
event of any litigation with respect to any matter connected with this
agreement.
Executed this 8th day of March, 2001
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By: /S/ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇, Chief Executive Officer Title
Accepted this 9th day of March, 2001
Prestige Capital Corporation
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President Title
Each of the undersigned hereby personally guarantees and shall be jointly and
severally liable for any damages suffered by Prestige Capital Corporation by
virtue of the breach of any warranty, representation or convenant made by Seller
in Paragraph 5 above. Each of the undersigned also personally waives presentment
for payment, demand, protest, notice of protest, notice of dishonor and notice
of every nature whatsoever.
Date: ___________________________________By: _________________________________
▇▇▇▇ ▇▇▇▇▇ individually
Date: ___________________________________By: _________________________________
individually