Purchase and Sale of Future Receivables - Advanceme Inc. and Cord Partners Inc.
<DESCRIPTION>PURCHASE AND SALE OF FUTURE RECEIVABLES
<TEXT>
Exhibit 10.11
ADVANCEME, INC.
[ ]1029131
Agreement dated May 12, 2004 between ADVANCEME, INC. (the "Company")
and the merchant listed below ("Merchant").
MERCHANT INFORMATION
Business Legal Name: Cord Partners, Inc.
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D/B/A: Cord Partners, Inc. State of Incorporation/Organization: FL
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Type of Entity: [x] corporation [ ] limited liability company [ ] partnership
[ ] limited partnership [ ] limited liability partnership [ ] sole partnership
Physical address: 10940 Wilshire Boulevard City: Los Angeles State: CA Zip: 90024
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Mailing address: 10940 Wilshire Boulevard City: Los Angeles State: CA Zip: 90024
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Date business started (mm/yy): 01/03 Federal ID or SS#: 651167067
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Contact Name: Matt Schissler Position: owner
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Phone: (310) 443-4153 Fax: (310) 443-4154 Email: Web Site:
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Bank Name: Bank of America City: Los Angeles State: CA
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PURCHASE AND SALE OF FUTURE RECEIVABLES
Upon payment by the Company to the Merchant of the purchase price specified
below (the "Purchase Price"), the Company will hereby be purchasing from the
undersigned Merchant and Merchant will hereby be selling to the Company,
Merchant's interest in the percentage specified below (the "Specified
Percentage") of each of its future credit card receivables (the "Future
Receivables") due to Merchant from a credit card processor acceptable to the
Company ("Processor") until the amount specified below (the "Specified Amount")
of Future Receivables has been delivered by Merchant to the Company.
Purchase Price: = $21,000.00 Specified Percentage: = 17%
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Specified Amount: = $28,404.00
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Merchant (i) agrees to enter into an agreement ( the "Processing Agreement")
acceptable to the Company with Processor to obtain credit and processing
services and (ii) hereby authorizes the Processor to pay the cash attributable
to the Specified Percentage of each of the Future Receivables to the Company
rather than to the Merchant until the Company receives the cash attributable to
the Specified Amount of Future Receivables from the Processor.
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PERSONAL GUARANTEE
The owners of Merchant (such owners, whether shareholders, partners or other
owners are referred to herein as "Owners") hereby guarantee Merchant's
performance of all of the covenants made by Merchant in this Agreement,
including the covenants contained in the next sentence (the "Merchant
Contractual Covenants"). Merchant agrees (i) to conduct its business consistent
with past practice; (ii) to exclusively use Processor for the processing of all
its credit card transactions; (iii) 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; (iv) not to change its arrangement with
Processor in any way which is adverse to the Company; (v) not to take any action
that has the effect of causing the credit card processor through which the major
credit cards are settled to be changed from Processor to another credit card
processor; and (vi) not to sell, dispose, convey or otherwise transfer its
business or assets without the express prior written consent of the Company and
the assumption of all of Merchant's obligations under this Agreement pursuant to
documentation reasonably satisfactory to the Company.
MERCHANT
By: Matthew L. Schissler /s/ Matthew L. Schissler
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(Print Name) (Signature)
WITNESS
By: Stephanie A, Schissler /s/ Stephanie A. Schissler
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(Print Name) (Signature)
OWNER/GUARANTOR
By:
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(Print Name) (Signature)
By:
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(Print Name) (Signature)
WITNESS
By:
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(Print Name) (Signature)
ADVANCEME, INC.
By: /s/ Miriam Adelberg Associate Name: Miriam Adelberg
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Associate ID: 520
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To the extent set forth herein, each of the parties is obligated upon their
execution of the Agreement.
The above-signed represents that he or she is authorized to sign this Agreement
for Merchant and that the information provided in this and all of the Company's
forms is true and accurate in all respects. If the information is false or
inaccurate, the Merchant shall be deemed in material breach of all agreements
between the Merchant and the Company and the Company shall be entitled to all
remedies available under law.
The Company may produce a monthly statement reflecting the delivery of the
Future Receivables from the Merchant via the Processor. Merchant hereby agrees
to a $0 administrative fee per month for the production of the monthly statement
and further agrees that the Company may debit such administrative fee from the
Merchant's bank account each month via the automated clearing house system.
An investigative or consumer report may be made in connection with the Merchant
Agreement. Merchant and each of the above-signed authorizes the Company and its
agents and representatives and any credit reporting agency employed by the
Company to investigate any references given or any other statements of data
obtained from or about Merchant or any of its principals for the purpose of this
Agreement and to pull credit reports at any time now or in the future on the
Merchant and Owner/Guarantor(s).
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ADVANCEME, INC.
ADDITIONAL TERMS OF THE MERCHANT AGREEMENT
Capitalized terms used but not defined in these Additional Terms of the
Agreement shall have the meanings assigned to such terms on the face of this
Agreement.
I. PROCESSING AGREEMENT.
Section 1.1. Processing Agreement. Merchant understands that the
Processing Agreement (as well as the authorization set forth on the face
hereof) irrevocably authorizes Processor to pay the cash attributable to
the Specified Percentage of each of the Future Receivables to the Company
rather than to Merchant until the Company receives the cash attributable to
the Specified Amount of Future Receivables from Processor. This
authorization may only be revoked with the prior written consent of the
Company. Merchant agrees that Processor may rely upon the instructions of
the Company, without any independent verification, in making the cash
payments described above. Merchant waives any claim for damages it may have
against Processor in connection with actions taken based on instructions
from the Company unless such damages were due to Processor's failure to
follow the Company's instructions. Merchant understands that (a) Processor
will be acting on behalf of the Company with respect to the Specified
Percentage of Future Receivables until the cash attributable to the
Specified Amount of Future Receivables has been remitted by Processor to
the Company, (b) the Company is not affiliated with the Processor and has
no relationship with the Processor other than through the Processing
Agreement, (c) the Company does not have any power or authority to control
Processor's actions with respect to the processing of credit card
transactions and (d) the Company is not responsible for Processor's actions
and agrees to hold the Company harmless for the actions of Processor.
Section 1.2. Merchant Instructions to Processor. The Merchant will
irrevocably instruct the Processor to hold the Specified Percentage of the
Future Receivables on behalf of the Company and to remit directly to the
Company the cash attributable to such Specified Percentage at the same time
it remits to Merchant the cash attributable to the balance of such Future
Receivables which was not sold to the Company by Merchant.
Section 1.3. Transactional History. Merchant acknowledges and agrees
that Processor may provide the Company with Merchant's credit card history
without the prior consent of the Merchant.
Section 1.4. Indemnification of Processor. Merchant indemnifies and
holds Processor, its officers, directors, affiliates, employees, agents and
representatives harmless from and against all losses, damages, claims,
liabilities and expenses (including reasonable attorneys' fees) suffered or
incurred by Processor resulting from actions taken by Processor in reliance
upon information or instructions provided to Processor by the Company.
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Section 1.5. No Liability for Processor. In no event will the Processor
be liable for any claims asserted by the Merchant under any theory of law,
including any tort or contract theory for lost profits, lost revenues, lost
business opportunities, exemplary, punitive, special, incidental, indirect
or consequential damages, each of which is hereby expressly waived by the
Merchant.
Section 1.6. Processor Commissions. The Company and Merchant understand
that Processor will charge a fee or commission for processing receipts
representing Future Receivables which have become actual receivables (the
"Processor's Fee") as set forth in the Processing Agreement. The Company
and the Merchant understand that with respect to each such receipt,
Processor will deduct a pro rata portion of the Processor's Fee from each
such receipt based on the relative size of the cash attributable to the
Specified Percentage of such Future Receivable sold by Merchant to the
Company and the cash attributable to the portion of such Future Receivable
which was retained by Merchant.
Section 1.7. No Modification of Processing Agreement. Merchant will
comply with the Processing Agreement and will not modify the Processing
Agreement in a manner that could have an adverse effect upon the Company's
interests, without the Company's prior written consent.
Section 1.8. Processing Trial; Decision to Purchase Future Receivables.
After this Agreement has been signed by both the Merchant and the Company
but prior to the Company's determination as to whether to pay the Purchase
Price, Merchant agrees to permit the Company to instruct the Processor to
conduct a short processing trial (the "Processing Trial") in order to
ensure that the Merchant's credit card transactions are being correctly
processed through Processor and that the cash attributable to the Specified
Percentage of any Future Receivables purchased by the Company is being
appropriately remitted to the Company. The Company agrees to make a
determination as to whether to purchase the Specified Amount of Future
Receivables promptly after the commencement of the Processing Trial. If the
Company determines to purchase Specified Amount of Receivables, then all of
the cash received by the Company in connection with the Processing Trial
prior to the payment of the Purchase Price shall be applied to reduce the
Specified Amount. Nothing herein shall create an obligation on behalf of
the Company to purchase any Future Receivables, and the company expressly
reserves the right to not purchase the Specified Amount of Future
Receivables and not pay the Purchase Price to Merchant. If the Company
decides to not purchase the Specified Amount of Future Receivables and not
pay the Purchase Price, this Agreement shall have no further effect and the
Company shall, promptly after receipt from the Processor, return to the
Merchant any cash received by the Company in connection with the Processing
Trial.
Section 1.9. Additional Amount. In the event that the amount of cash
remitted by Processor to the Company pursuant to this Agreement exceeds the
Specified Amount (such cash being the "Excess Cash") by at least $20.00,
the Company agrees to pay such Excess Cash to Merchant promptly after
receipt thereof by the Company. In the event the Excess Cash is less than
$20.00, the Company agrees to pay such Excess Cash to Merchant promptly
after the receipt of a written request from Merchant within six months for
such Excess Cash. The Merchant acknowledges that the Company has no
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obligation to take any action (including against the Processor) with
respect to any cash being held by Processor, which will become Excess Cash
once it is paid by the Processor to the Company, prior to the receipt of
such Excess Cash by the Company.
Section 1.10. Reliance on Terms. Sections 1.1, 1.2, 1.3, 1.4, 1.5, 1.6,
1.7, 1.8 and 1.9, and this Section 1.10, as well as provisions on the face
of this Agreement are agreed to for the benefit of Merchant, the Company
and Processor, and notwithstanding the fact that Processor is not a party
to this Agreement, Processor may rely upon their terms and raise them as a
defense in any action. No amendment to, or modification or deletion of, any
of the aforementioned Sections shall be made without the prior written
consent of Processor.
II. ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS.
Merchant and the Owners represent, warrant and covenant that as of this
date and during the term of this Agreement:
Section 2.1. Merchant Contractual Covenants. Merchant agrees to comply
with the Merchant Contractual Covenants set forth on the face of the Agreement.
Section 2.2. Information Regarding Business. The information (financial
and other) provided by or on behalf of Merchant to the Company in connection
with the execution of or pursuant to this Agreement is true and correct in all
material respects. Merchant shall furnish the Company and Processor such
information as the Company may request from time to time.
Section 2.3. Reliance on Information. Merchant acknowledges that the
information (financial and other) provided by Merchant has been relied upon by
the Company in connection with its decision to purchase the Future Receivables.
Section 2.4. Governmental Approvals. Merchant possesses and is in
compliance with all permits, licenses, approvals, consents and other
authorizations necessary to conduct its business. Merchant is in compliance with
any and all applicable federal, state and local laws and regulations. Merchant
possesses all requisite permits, authorizations and licenses to own, operate and
lease its properties and to conduct the business in which it is presently
engaged.
Section 2.5. Authorization. Merchant, and the person(s) signing this
Agreement on behalf of Merchant, have full power and authority to enter into and
perform the obligations under this Agreement and the Processing Agreement, all
of which have been duly authorized by all necessary and proper action.
Section 2.6. Insurance. Merchant will maintain insurance in such
amounts and against such risks as are consistent with past practice and shall
show proof of such insurance upon the reasonable request of the Company.
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Section 2.7. Change Name or Location. Merchant will not conduct
Merchant's businesses under any name other than as disclosed to Processor or the
Company or change any of its places of business.
Section 2.8. Merchant Not Indebted to Company. The Merchant is not a
debtor of the Company as of the date of this Agreement.
Section 2.9. Exclusive Use of Processor. Merchant understands that the
services of the Processor is the exclusive means by which the Merchant can
process its credit card transactions.
III. ADDITIONAL TERMS.
Section 3.1. Sale of Future Receivables. Merchant and the Company agree
that the Purchase Price paid by the Company in exchange for the Specified Amount
of Future Receivables in a purchase of the Specified Amount of Future
Receivables and is not intended to be, nor shall it be construed as, a loan from
the Company to Merchant.
Section 3.2. No Right to Repurchase. Merchant acknowledges that it has
no right to repurchase the Specified Amount of Future Receivables from the
Company.
Section 3.3. Term of the Agreement. This Agreement shall be in full
force and effect until the Specified Amount of Future Receivables has been
delivered by Merchant to the Company.
Section 3.4. Recision of Agreement. Merchant agrees that in the event
that the representations and warranties in Sections 2.2 or 2.7 are not true and
correct, the Company shall be entitled to rescind this Agreement and to the
return (and Merchant agrees to so return) of the Purchase Price less any cash
attributable to Future Receivables that has been received by the Company.
Merchant agrees that the Company may automatically debit such recision amount
from Merchant's bank account via the automated clearing house system or wire
transfer.
Section 3.5. Remedies. In the event that any of the representations and
warranties contained in this Agreement are not true and correct or in the event
of a breach of any of the covenants contained in this Agreement, including the
Merchant Contractual Covenants, the Company shall be entitled to all remedies
available under law, including but not limited to the right to non-judicial
foreclosure. In the event that Merchant breaches the specified Merchant
Contractual Covenant (v) on the face of this Agreement, the Merchant agrees that
the Company will be entitled to, but not limited to damages equal to the amount
by which the cash attributable to the Specified Amount of Future Receivables
exceeds the amount of cash received from Future Receivables exceeds the amount
of cash received from Future Receivables that have previously been delivered by
Merchant to the Company under this Agreement. Merchant hereby agrees that the
Company may automatically debit such damages from Merchant's bank account via an
automated clearing house system or wire transfer.
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Section 3.6. UCC-1 Financing Statement. To secure the performance of
the Merchant Contractual Covenants and all of the other obligations of the
Merchant to the Company under this Agreement, Merchant grants to Company a
continuing priority security interest, subject only to the security interest of
the Processor, if any, in the following property of the Merchant: (a) All
accounts, chattel paper, documents, equipment, general intangibles, instruments,
inventory (as those terms are defined in Article 9 of the Uniform Commercial
Code in effect from time-to-time in the State of New York) wherever located, now
or hereafter owned or acquired by the Merchant; (b) All trademarks, trade names,
service marks, logos and other sources of business identifiers, and all
registrations, recordings and applications with the U.S. Patent and Trademark
Office and all renewals, reissues and extensions thereof (collectively
"Trademarks") whether now owned or hereafter acquired, together with any written
agreement granting any right to use any Trademarks; and (c) All proceeds, as
that term is defined in Article 9 of the Uniform Commercial Code. Merchant
understands that the Company will file one or more UCC-1 Financing Statements
prior to each sale of Future Receivables in order to perfect the interest
created under the U.C.C. upon the sale. The UCC-1 Financing Statements will
state that the sale of the Future Receivables is intended to be a sale and not
an assignment for security.
IV. MISCELLANEOUS.
Section 4.1. Modifications; Amendments. No modification, amendment, or
waiver of any provision of this Agreement shall be effective unless the same
shall be in writing and signed by the party affected.
Section 4.2. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be delivered by mail,
overnight delivery or hand delivery to the respective parties to this Agreement.
Notice to the Company shall be sent to the following address:
Advanceme, Inc.
c/o Office of Corporate Secretary
2 Overhill Road, Suite 410
Scarsdale, NY 10583-5323
Section 4.3. Waiver; Remedies. No failure on the part of the Company to
exercise, and no delay in exercising, any right under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right under this Agreement preclude any other or further exercise of any other
right. The remedies provided hereunder are cumulative and not exclusive of any
remedies provided by law or equity.
Section 4.4. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of Merchant, the Company and their respective successors
and assigns, except that Merchant shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Company which consent may be withheld in the Company's sole discretion. The
Company reserves the right to assign this Agreement with or without prior notice
to Merchant.
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Section 4.5. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York. Merchant hereby
submits to the jurisdiction of any New York state or federal court sitting in
the Borough of Manhattan of The City of New York or any Georgia state or federal
court sitting in Cobb County. Merchant hereby waives any claim that the action
is brought in an inconvenient forum, that the venue of the action is improper,
or that this Agreement or the transactions of which this Agreement is a part may
not be enforced in or by any of the above-named courts.
Section 4.6. Costs to Enforce Merchant Agreement Payable by Merchant.
The Company shall be entitled to receive from Merchant and Merchant shall pay,
all reasonable costs associated with a breach by Merchant of the Merchant
Contractual Covenants or other obligations or any of the representations and
warranties of the Merchant and the enforcement thereof, including but not
limited to court costs and attorney's fees.
Section 4.7. Survival of Representations, etc. All representations,
warranties and covenants herein shall survive the execution and delivery of this
Agreement and shall continue in full force and effect until all obligations
under this Agreement shall have been satisfied in full and this Agreement shall
have terminated.
Section 4.8. Severability. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or impaired
thereby.
Section 4.9. Entire Agreement. This Agreement contains the entire
agreement and understanding between Merchant and the Company and supersedes all
prior agreements and understandings relating to the subject matter hereof unless
otherwise specifically reaffirmed or restated herein.
Section 4.10. Jury Trial Waiver. The parties hereto waive trial by jury
in any court in any suit, action or proceeding on any matter arising in
connection with or in any way related to the transaction of which this agreement
is a part or the enforcement hereof, except where such waiver is prohibited by
law or deemed by a court of law to be against public policy. The parties hereto
acknowledge that each makes this waiver knowingly, willingly and voluntarily and
without duress, and only after extensive consideration of the ramifications of
this waiver with their attorneys.
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