PURCHASE AGREEMENT NO. 09
Exhibit
10.37
CREDIT
CASH, LLC
PURCHASE
AGREEMENT NO. 09
This
Purchase Agreement ("Agreement") is made and
entered into as of the 17th day of January 2008 by and among CREDIT CASH, LLC, a
Delaware limited liability company with an office located at ▇▇▇ ▇▇▇▇ ▇▇▇.,
▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Company") and ALL AMERICAN
PLAZAS, INC. a Delaware company with an office located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Merchant").
PURCHASE
AND SALE OF FUTURE RECEIVABLES
| Purchase Price: | $600,000.00; |
| Collection Amount: | The Purchase Price, plus 2% fee (i.e., $12,000), plus interest calculated at the Interest Rate, plus Costs and Expenses |
The
Company purchases from the Merchant, and the Merchant hereby sells, assigns and
transfers to the Company, effective upon payment by the Company to the Merchant
of the Purchase Price specified above, all of Merchant's interest in each of its
future credit card receivables arising from the sale of goods to customers
located in the United States (the "Future Receivables") due to Merchant from its credit
card processor (together with any successor, the "Processor").
Merchant (i) agrees to enter into an agreement with Processor
acceptable to the Company to obtain credit and processing services (the "Processor Agreement")
and (ii) hereby authorizes Processor, through the execution of
Irrevocable Payment Instructions, to pay to the Company all of the cash
attributable to the Merchant under the Processor Agreement; provided, however, that the
Company agrees to remit to Merchant, 85% of the cash received from the Processor
and the Company may retain 15% (the "Payment Percentage")
of the of the cash received from the Processor to be applied to the
Collection Amount until the cash payments applied by the Company equal to the
Collection Amount; provided, further, that if the
Company, in its reasonable judgment, deems that it is insecure at any time in
the timely payment of the Collection Amount on the basis of the then current
Payment Percentage, regardless of whether an Event of Default has occurred,
Merchant agrees that the Company may increase the Payment Percentage from time
to time to assure timely payment of the Collection Amount by retaining a greater
percentage of the cash received from the Processor. Notwithstanding the
foregoing, Merchant shall, at all times, be jointly and severally be liable for
the repayment of all of the obligations hereunder and under any other agreement
between the Company and any Merchant. Merchant represents that it has good and
marketable title to the Future Receivables, free and clear of all liens and
encumbrances, other than any security interest granted to the Processor and any
financial institution ("Bank")
pursuant to the Processor Agreement. Merchant shall be responsible
to Processor and the Bank for all credit card transactions returned to Processor
and Bank for any reason, and the Company shall not be obligated to return any
portion (or all) of the Collection Amount received by the Company to any person
or entity, including, without limitation, Processor or Bank.
Interest
shall be charged to Merchant by the Company at the per annum rate equal to the
highest prime rate (the "Prime
Rate") in effect during each month as generally reported by Citibank,
N.A. plus 3.75%
(the "Interest Rate"),
but the Interest Rate shall never be less than 12% nor more than 24% per
annum or the maximum permitted by law. The Interest Rate shall be calculated
based on a three hundred sixty (360) day year for the actual number of days
elapsed and shall be charged to Merchant on the daily balance of all outstanding
obligations.
In
computing interest on the obligations of Merchant to the Company, all checks,
wire transfers and other items of payment received by the Company
(including payment of the obligations in full) shall be deemed applied by the
Company on the day such payment is received or, if received after 2pm New York,
NY time, the next business day. However, the Company shall be entitled to charge
the Merchant's account one (1) business day of "clearance" or "float" at the
Interest Rate set forth above, on all checks, wire transfers and other items
received by the Company, regardless of whether such one (1) business day of
clearance or float actually occur, and such charge shall be deemed to be the
equivalent of charging one (1) business day of interest on such payments and/or
collections. The one (1) business day clearance or float charge on all payments
and collections is acknowledged by the parties to constitute an integral aspect
of the pricing of the Company's financing to Merchant. The Company shall not,
however, be required to credit Merchant's account for the amount of any item of
payment which is unsatisfactory to the Company, in the Company's reasonable
business discretion, and the Company may charge Merchant's loan account for the
amount of any item of payment which is returned to the Company
unpaid.
In no
event shall the Interest Rate exceed the highest rate permitted under any
applicable law or regulation. If any part or provision of this Agreement is in
contravention of any such law or regulation, such part or provision shall be
deemed amended to conform thereto, and any payments of interest made in excess
of such highest rate permitted, if any, shall be deemed to be payments of
principal obligations, to the extent of such excess.
This
Agreement is in addition to and supplements all previous Purchase Agreements,
between Merchant and Credit Cash, LLC, each of which remains valid and
effective. Merchant hereby confirms that the balance of all outstanding loans
made to Merchant, as of January 16, 2008, amounts to $812,780.72, plus accrued
interest.
The
Merchant understands and agrees that all loans and advances by the Company to
Merchant under this Agreement, all other Purchase Agreements, and any other
related agreements, constitute one loan, and all indebtedness and obligations of
Merchant to the Company under this Agreement and all other Purchase Agreements,
and related agreements, present and future, constitute one general obligation
secured by the Collateral and security held and to be held by the Company
hereunder and by virtue of all other agreements between Merchant (and all
guarantors) and the Company now and hereafter existing. It is distinctly
understood and agreed that all of the rights of the Company contained in this
Agreement shall likewise apply insofar as applicable to
any modification of or supplement to this Agreement and to any other agreements,
present and future, between the Company and Merchant.
The
parties hereby agree to the additional terms set forth below including, but not
limited to, covenants to operate the Merchant's business in the ordinary course
and prohibiting changes in credit card processors or arrangements and diversions
of the Merchant's credit card
transactions to another processor or to another credit card network or
association.
1. Representations
and Warranties of Merchant. Merchant represents and warrants to
the Company as follows: (a) all of the information provided by the Merchant to
the Company pursuant to this Agreement and otherwise is true, correct and
complete in all
respects; (b) Merchant has full power and authority to enter into this Agreement
and to perform the transactions contemplated hereby; (c)
if an entity, (i) Merchant is
duly incorporated/formed/organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation/formation/organization,
and (ii) Merchant has full corporate/partnership/limited liability company power
and authority to enter into this Agreement and perform the transactions
contemplated hereby; (d) Merchant is duly qualified to do business in each
jurisdiction in which it conducts its business; (e) this Agreement is the legal
and valid obligation of Merchant, enforceable against Merchant in accordance
with its terms; (f) Merchant is solvent, has not made an assignment for the
benefit of creditors or filed in any court, pursuant to any statute of the
United States or any state, a petition for bankruptcy or insolvency, or filed
for reorganization or for the appointment of a receiver or trustee of all or a
material portion of its property, and Merchant does not have reason to believe
any involuntary bankruptcy action or order will be filed with respect to
Merchant; (g) all amounts are due with respect to all Future Receivables are due
in United States Dollars; (h) any taxes or fees relating to the Future
Receivables or goods or services sold by Merchant are solely Merchant's
responsibility; and (i) the historical credit card receivable data provided by
Merchant to the Company does not represent sales to any subsidiary, affiliate or
parent company.
2. Covenants of
Merchant. Merchant hereby covenants and agrees as follows: (a) to conduct
its business and use the Purchase Price in the ordinary course of business
consistent with past practice; (b) to exclusively use the Processor to process
all of its credit card transactions; (c) not to take any action to discourage
the use of credit cards or to permit any event to occur which could have an
adverse effect on the use, acceptance or authorization of credit cards for the
purchase of Merchant's services and products; (d) not to change its
arrangements with Processor without the prior written consent of the
Company; (e) not to permit any event to occur that could cause a diversion of
any of Merchant's credit card transactions to another credit card network or
associations; (f) to another
credit card network or association; (f) to comply with all of the terms and
conditions imposed by the Processor and/or Bank, including, without limitation,
pursuant to the Processor Agreement; (g) to provide the Company with at least 10
days' prior written notice of any event which would cause any of the information
provided by Merchant to the Company in this Agreement, in the Merchant
Information Sheet or otherwise to be untrue, incorrect or incomplete in any
respect; (h) not to grant any lien on or security interest in, or sell; assign
transfer, pledge or otherwise dispose of, any Future Receivables; (i) to comply
with all laws, rules and regulations applicable to Merchant; and (j) not to
sell, assign, assign, transfer, pledge or otherwise dispose of all or a
substantial portion of its business or assets. In addition, Merchant covenants
and agrees that each Future Receivable will (i) be based upon a bona fide sale
and delivery of inventory or rendition of services made by Merchant in the
ordinary course of business and (ii) represent a payment obligation for goods
or
services accepted by Merchant's customer of which such customer is
obligated to pay the full amount without dispute, claim, offset, defense,
deduction, rejection, recoupment, counterclaim or contra account.
3. Credit Investigation.
Merchant hereby authorizes the Company and its agents and employees to
investigate any references or any other statements of data provided by the
Merchant or obtained from or about the Merchant for purposes of this
Agreement.
4. Security Interests. As
security for the prompt performance, observance and payment in full of all
obligations of Merchant to Company hereunder and under any and all other
agreements between Merchant and Company, Merchant hereby continues to pledge,
assign, transfer and grant to Company a first priority security interest in, and
continuing lien upon, and right of setoff against, all of Merchant's
Accounts,
including but not limited to, Accounts arising from Merchant's sales that are,
or will be paid by the use of credit cards or charge cards, debit cards or other
types of bank cards, whether now existing or hereafter created or acquired and
wherever located (defined herein as Future Receivables), and the contract
rights, general intangibles and Proceeds thereof; all of Merchant's interest in
all Processor Agreements and all of Merchant's rights to the Proceeds and
payments due to Merchant under all Processor Agreements; Merchant's
interest in all Deposit Accounts, all whether now existing or hereafter
arising or created and wherever located, and all Proceeds
(including
cash and non-cash proceeds) of any and all of the foregoing; all or Merchant's
books, Records and all other evidences of the foregoing; and all renewals,
substitutions and replacements of any and all of the foregoing. In addition to
the foregoing, Merchant also continues to grant to the Company, a first priority
security interest in, and continuing lien upon, and right of setoff against, all
of the assets of every kind and nature of Merchant, in each case, whether now
owned or existing or hereafter created, acquired or arising and wherever
located, including but not limited to, the following assets: (a) Accounts,
contract rights and the proceeds thereof; (b) Chattel Paper, including
Electronic Chattel Paper and tangible Chattel Paper; (c) General Intangibles,
including but not limited to patents, trademarks and tradenames and the goodwill
and inherent value associated therewith, tax refunds, customer lists, insurance
claims and goodwill of Merchant; (e) Instruments; (f) Proceeds, including Cash
Proceeds and Non-Cash Proceeds, and proceeds of any insurance policies covering
any of the Collateral; (g) Promissory Notes; (h) Records, including all books,
records and other property at any time evidencing or relating to any of the
foregoing, and all electronic means of storing such Records; (i) to the extent
not otherwise included above, all collateral support and Supporting Obligations
relating to any of the foregoing; and (j) to the extent not otherwise included
above, all Proceeds, products, accessions, rents and profits of or in respect of
any of the foregoing. All of the foregoing assets described in this Section 4
shall collectively be referred to as the "Collateral" and all capitalized terms
in this description that are not otherwise defined shall have the meanings given
to them under the Uniform Commercial Code as adopted by the State of New York
(the "UCC") and this Agreement shall constitute a security agreement under the
UCC. Merchant hereby authorizes the Company to file such financing statements as
the Company deems necessary to perfect the security interest granted by Merchant
herein.
5. Termination. This
Agreement shall terminate upon the indefeasible payment in full of the
Collection Amount by the Merchant to the Company.
6. Events of Default.
The occurrence of any of the following actions shall constitute an "Event of Default" hereunder:
(a) if Merchant shall fail to pay the Company any amounts owing to the Company
upon demand by the Company, (b) Merchant makes any assignment for the benefit of
creditors, or a proceeding is commenced by or
against Merchant under any bankruptcy, insolvency or similar law seeking
an order to adjudicate Merchant bankrupt or insolvent or other relief with
respect to Merchant's debts or seeking appointment of a receiver or similar
official for Merchant or any substantial part of Merchant's assets; (c) Merchant
becomes insolvent or admits in writing its inability to pay its debts as they
become due; (d) Merchant breaches any covenant and/or agreement set forth
herein; or (e) any representation or warranty of Merchant shall have been false
or misleading when made or at any time during the term of this
Agreement.
7. Remedies. Upon the
occurrence of an Event of Default, the Company shall be entitled to exercise all
rights available to it at law or in equity. In addition, upon the occurrence of
an Event of Default, or if the Company believes itself insecure for any reason,
including without limitation, the Future Receivables are less than Merchant's
historical credit card receivables, the Company shall have the right, upon
written notice to Merchant and the Processor, to unilaterally increase the
Payment Percentage. Merchant hereby expressly authorizes the Processor to pay
any increased Payment Percentage of Future Receivables to the Company upon
receipt of such written notice. Furthermore, after the occurrence of an Event of
Default which is not waived by the Company, the Company shall have all of the
rights and remedies of a secured party under Article 9 of the Uniform Commercial
Code with respect to any other property or Collateral in which the Company has a
security interest. If notice of intended disposition of any such property or
Collateral is required by law, it is agreed that five days notice constitutes
reasonable notice. The net cash proceeds resulting from the exercise of any of
the foregoing rights, after deducting all charges, costs and expenses (including
reasonable attorneys' fees) will be applied by the Company to the payment of the
unpaid Collection Amount and any other fees or amounts due from Merchant to the
Company, in such order as the Company may elect. Merchant remains liable to the
Company for any deficiencies.
8. Indemnification.
Merchant hereby agrees to jointly and severally indemnify, defend and hold
harmless the Company and its members, managers, officers, employees and agents
from and against any damage, claim, liability, costs and expenses (including,
without limitation, reasonable attorneys' fees) incurred in connection with this
Agreement. This Section 8 shall survive the termination of this
Agreement.
9. Miscellaneous.
(a) This
Agreement, and all attendant documentation, as the same may be amended from time
to time, constitutes the entire agreement among the parties with regard to the
subject matter hereof, and supersedes any prior agreements or understandings.
This Agreement can be changed only by a writing signed by all parties. The
failure or delay of the Company in exercising any right hereunder will not
constitute a waiver thereof or bar the Company from exercising any of its rights
at any time.
(b) This
Agreement shall be governed and construed in accordance with the laws of the
State of New York, without regard to conflict of law provisions. The parties
agree to submit to the jurisdiction of the New York state courts or any federal
court sitting in the state of New York in the event of any dispute hereunder.
To
the extent permitted by applicable law, each party hereby waives any right to a
trial by jury in any action or proceeding
arising directly or indirectly out of this Agreement
or any other agreement or transaction among the
parties.
(c) This
Agreement binds and benefits each party and their respective successors, heirs
and assigns, provided, however, that
Merchant may not assign this Agreement or any rights hereunder without the prior
written consent of the Company.
(d) If any
provision of this Agreement is contrary to, prohibited by, or deemed invalid
under applicable laws or regulations, such provision will be inapplicable and
deemed omitted to such extent, but the remainder will not be invalidated thereby
and will be given effect so far as possible. Section headings are for
convenience only and are not controlling.
(e) Any
notice or other communication hereunder shall be made in writing and deemed
given (i) three days after being deposited in the U.S. mail, first class,
postage prepaid, or (ii) when delivered by a nationally recognized overnight
courier which provides
confirmation of delivery, addressed to the Company at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or to Merchant at the address set forth in the Merchant
Information Sheet. Any party may change its address to which notice is sent
hereunder by providing written notice to the other parties in accordance
herewith.
(f) The
Company may examine the books and records of Merchant relating to the Future
Receivables at any time during
the term of this Agreement.
10. (a) "Costs and Expenses"
shall include, but not be limited to commissions, fees, internal and external
field examination expenses for routine and non-routine audits and field
examinations, filing, recording and search expenses, reasonable internal and
external attorney's fees and disbursements (as may be incurred with respect to
the effectuation of this Agreement or any claim of any nature or litigation
whatsoever arising out of or as a result of the interpretation of this Agreement
or the financing provided for hereunder, including, but not limited to, all fees
and expenses for the service and filing of papers, premiums on bonds and
undertakings, fees of marshals, sheriffs, custodians, auctioneers and others,
travel expenses and all court costs and collection charges), postage, wire
transfer fees in the amount of $50.00 for each wire transfer initiated by
Company and/or for Company's services in wiring, certifying or transferring
funds; check dishonor fees and other internal and/or external fees, costs and
expenses arising out of or relating to the negotiations, preparation,
consummation, administration and enforcement of this Agreement or any other
agreement between Merchant and Company including, but not limited to any
guaranty of the obligations of Merchant.
(b) In addition
to the foregoing, Merchant shall be charged a one-time set up fee of $N/A.
11. DisbursingAgent. It is
hereby acknowledged
that the Company may receive from the Processor cash attributable to Merchant
and one or more of Merchant's affiliates or subsidiaries or in a name other than
Merchant that Merchant uses as tradename, fictitious name, assumed name or other
designation (collectively referred to herein as "Tradenames"). Merchant
expressly authorizes the Company to receive all such cash on behalf of Merchant
and to retain the Payment Percentage for credit against the Merchant's
obligations under this Agreement.Merchant
hereby represents and warrants
to the Company that Merchant has been appointed
as the "Disbursing Agent"
for all of Merchant's affiliates, subsidiaries and Tradename entities and
that it is in the best interest and convenience of the Merchant that all loans
and advances made by the Company pursuant to this Agreement be made only to the
Merchant, for itself and as Disbursing Agent. Accordingly, the Merchant shall be
the sole entity entitled to receive the funds advanced by the Company under this
Agreement and the Merchant shall make disbursements to its affiliates, subsidiaries and Tradename entities in Mechant's
discretion. All of the monies received by the Company will be credited by
the
Company to the Merchant's account and the Company shall remit all monies
pursuant to this Agreement and the Irrevocable Payment Instructions only to the
Merchant. The Merchant, for itself and as Disbursing Agent, hereby irrevocably
waives any claim it may have against the Company and hereby indemnifies and
holds the Company harmless from and against all damages, losses, claims,
demands, liabilities, obligations, actions and causes of action whatsoever which
Merchant or any of Merchant's affiliates, subsidiary or Tradename entities may
have against the Company which may arise as a result of the Company remitting
all monies under this Agreement solely to the Merchant, for itself and as
Disbursing Agent, and/or the Payment Percentage being credited by the
Company solely the Disbursing Agent's account with the Company.
12. Charges to Merchant's
Account. All fees, interest, commissions, charges, Costs and Expenses
incurred with or in respect of this Agreement, or any supplement or amendment
hereto (all of which shall be cumulative and not exclusive) shall be charged to
Merchant's account as maintained by Company. In furtherance thereof, Merchant
hereby authorizes Company to charge the Merchant's account maintained by
Company: (a) all Costs and Expenses and (b) all fees, interest and other charges
provided in this Agreement and further authorizes the Company to pay all such
charges by deducting the amounts from the Purchase Price and/or from the
Merchant's portion of the cash proceeds received by the Company from the
Processor that would otherwise remitted to Merchant.
13. The
Company shall render to Merchant a monthly statement of its account which
statement shall be deemed correct, accepted by, and conclusively binding upon
Merchant as an account stated, except to the extent that Merchant shall deliver
to the Company written notice of any specific exceptions thereto within twenty
(20) days after the date such statement is rendered.
The
undersigned, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, have executed this Agreement as of the latest
date set forth below, intending to be legally bound.
This
Agreement may be executed in any number of counterparts (whether facsimile or
original), each of which shall be deemed an original as to the party whose
signature appears thereon and all of which together shall constitute one and the
same instrument. An executed facsimile of this Agreement shall
be deemed a valid and binding agreement between the parties
hereto.
| CREDIT CASH, LLC | ALL AMERICAN PLAZAS, INC. |
| By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ | By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ |
| Name: ▇▇▇▇ ▇▇▇▇▇▇ | Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ |
| Title: President | Title: President |
notary
page follows
STATE OF
NEW
YORK
)
)ss.:
COUNTY OF
NEW
YORK )
On this
18th day of January 2008 before me personally appeared ▇▇▇▇ ▇▇▇▇▇▇ personally known
to me or proved to me on the basis of satisfactory evidence to be the individual
whose name is subscribed to the within instrument and acknowledged to me that
he/she is the Managing Member and president of CREDIT
CASH LLC, the company herein described and that he/she executed the same
in his/her capacity as an officer of said company, and that he/she signed the
instrument by order of the members of said company.
| /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
| NOTARY PUBLIC | |
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
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| Notary Public - State of New York | |
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No.
02R16123649
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| Qualified in Westchester County | |
| Commission Expires March 7, 2009 |
STATE OF
Pennsylvania
)
)ss.:
COUNTY OF
Berks
)
On this
17th day of January 2008 before me personally appeared ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, personally known to me or proved to
me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he/she is the
President of ALL AMERICAN PLAZAS, INC., the corporation herein described and
that he/she executed the same in his/her capacity as an officer of said
corporation, and that he/she signed the instrument by order of the board of
directors of said corporation.
| /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
| NOTARY PUBLIC | |
|
COMMONWEALTH OF
PENNSYLVANIA
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Notarial
Seal
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|
▇▇▇▇▇▇ ▇▇▇▇▇▇,
Notary Public
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Bethel Twp., Berks
County
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My Commission
Expires May 13, 2011
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| Member, Pennsylvania Association of NotariesCommission Expires March 7, 2009 |