Exhibit 10.4
Agreement for the Purchase and Sale of Future Receipts
Seller’s Legal Name: ___________________________D/B/A: _________________________
Form of Business Entity: Corporation
Street Address: 12001 N Central Expressway, #825
City: Dallas
State: TX
Zip: 75243
Mailing Address: Same as above
Primary Contact Name: Carl Dorvil
Time in Business: ___________________________
Title: CEO
Federal Tax ID Number: 56-2428818
Purchase Price: $772,500.00
Purchased Amount: $1,066,050.00
Specified Percentage: 15
% Origination Fee: $23,175.00 (to be deducted from the Purchase Price)
Initial Daily Amount: $5,077.77 (Average Monthly Sales x Specified Percentage/Average Business Days in a Calendar Month)
Account for the Deposit of all Future Receipts: Bank: ___________________________________
Account No: ________________________________
Effective,MARCH62018Seller,identified above, hereby sells, assigns and transfers to C6 CAPITAL,LLC,locatedat 351E84TH ST SUITE #27E, NEW YORK, NY 10028 ("Buyer"), without recourse, the Specified Percentage of the proceeds of each future sale made by Seller (collectively "Future Receipts") until Buyer has received the Purchased Amount. "Future Receipts" includes all payments made by cash, check,ACH or other electronic transfer, credit card, debit card,bankcard, charge card (each such card shall be referred to herein as a "Payment Card") or other form of monetarypayment inthe ordinary course of Seller'sbusiness.As payment for the Purchased Amount,Buyer willdeliver to Seller the Purchase Price, shown above, minus anyOriginationFee shownabove.
Seller acknowledges that it has no right torepurchasethe Purchased Amount from Buyer.
Both patties agree that the obligation of Buyer under this Agreement will not be effective unless and until Buyerhascompleted its review of the Seller and has accepted this Agreement by delivering thePurchasePrice,minus any Origination Fee.Prior to accepting thisAgreement,Buyer mayconducta processing trial to confirm its access to the Account and the abilitytowithdraw the Initial Daily Amount.Iftheprocessing trial isnotcompleted tothesatisfaction ofBuyer,Buyer will refund toSellerall fundsthatwere obtainedbyBuyer during theprocessingtrial.
Agreement of Seller:By signing below Seller agrees to the terms and conditions contained inthisAgreement,includingthose termsand conditions on thefollowingpages, and further agrees that this transaction is for business purposes andnotfor personal, family, or householdpurposes.
/s/ Carl Dorvil
Agreement of Each Owner:Each Owner signing below agrees to the terms of the Credit Report Authorization below:
/s/ Carl Dorvil
1. | Delivery of Purchased Amount:Seller must deposit all Future Receipts into the single business banking account specified above, which may not be used for any personal, family or household purposes (the "Account") and must instruct Seller's credit card processor, which must be approved by Buyer (the "Processor") to deposit all Payment Card receipts of Seller into the Account. Seller agrees not to change the Account or add an additional Account without the express written consent of Buyer. Seller authorizes Buyer to debit the Daily Amount from the Account each business day by either ACH or electronic check. Seller will provide Buyer with all required access codes and agrees not to change them without prior written consent fromBuyer.Seller will provide an appropriate ACH authorization to Buyer. Seller understands that it is responsible for either ensuring that the Daily Amount is available in the Account each business day or advising Buyer prior to each daily withdrawal of a shortage of funds. Otherwise, Seller will be responsible for any fees incurred by Buyer resulting from a rejected electronic check or ACH debit attempt, as set forth on AppendixA.Buyer is not responsible for any overdrafts or rejected transactions that may result from Buyer's debiting any amount authorized under the terms of this Agreement. Seller understands that the foregoing ACH authorization is a fundamental condition to induce Buyer to accept the Agreement. Consequently, such authorization is intended to beirrevocable. |
2. | Seller May Request Changes to the Daily Amount:The initial Daily Amount is intended to represent the seller’s daily Future Receipts. For as long as no Event of Default has occurred, once each calendar month, Seller may request that Buyer adjust the Dailey mount to more closely reflect the Seller’s actual Future Receipts times the Specified Percentage. Seller agrees to provide Buyer any information requested by Buyer to assist in this reconciliation. No more often than once a month. Buyer may adjust the Daily Amount on a going-forqard basis to more closely reflect the Seller’s actual Future Receipts times the Specified Percentage. Buyer will give Seller notice five business days prior to any such adjustment. After each adjustment made pursuant to this paragraph, the new dollar amount sahll be deemed the Daily Amount until any subsequent adjustment. |
3. | Daily Amount Upon Default.Upon the occurrence of an Event of Default, the Daily Amount shall equal 100% of all FutureReceipts. |
4. | Sale of Future Receipts (THIS IS NOT A LOAN):Seller is selling a portion of a future revenue stream to Buyer at a discount, not borrowing money from Buyer. There is no interest rate or payment schedule and no time period during which the Purchased Amount must be collected by Buyer. If Future Receipts are remitted more slowly than Buyer may have anticipated or projected because Seller's business has slowed down, or if the full Purchased Amount is never remitted because Seller's business went bankrupt or otherwise ceased operationsinthe ordinary course of business, and Seller has not breached this Agreement, Seller would not owe anything to Buyer and would not be in breach of or default under this Agreement. Buyer is buying the Purchased Amount of Future Receipts knowing the risks that Seller's business may slow down or fail, and Buyer assumes these risks based on Seller's representations, warranties and covenantsinthis Agreement that are designed to give Buyer a reasonable and fair opportunity to receive the benefit of its bargain. By this Agreement, Seller transfers to Buyer full and complete ownership of the Purchased Amount of Future Receipts and Seller retains no legal or equitable interest therein. Seller agrees that it will treat Purchase Price and Purchased Amount in a manner consistent with a sale in its accounting records and tax returns.Seller agrees that Buyer is entitled to audit Seller's accounting records upon reasonable Notice in order to verify compliance. Seller waives any rightsofprivacy,confidentialityortaxpayerprivilegeinanysuchlitigation orarbitrationinwhichSellerassertsthatthistransactionis anything other than a sale of futurereceipts. |
5. | Power of Attorney.Seller irrevocably appoints Buyer as its agent and attorney-in-fact with full authority to take any action or execute any instrument or document to settle all obligations due to Buyer from Seller, or in the case of a violation by Seller of this Agreement or the occurrence of an Event of Default under Section 15 hereof by Seller, including withoutlimitation(i) to obtain and adjust insurance; (ii) to collect monies due or to become due under or in respect of any of the Future Receipts; (iii) to receive, endorse and collect any checks, notes, drafts,instruments, documents or chattel paper in connection with clause (i) or clause (ii) above; (iv) to sign Seller's name on any invoice, bill of lading, or assignment directing customers or account debtors todirect |
Initials:Initials:ll'lll'lALHlllE
C6 CAPITAL,LLC
2
payables to Buyer; (v) to file any claims or take any action or institute any proceeding which Buyer may deem necessaryforthe collection of any of the remaining Purchased Amount of the Future Receipts, or otherwise to enforce its rights with respect to delivery of the Purchased Amount; and/or (vi) to contact any Processor of Seller and to direct such Processor(s) to deliver directly to Buyerallor any portion of the amounts received by such Processor(s) and to provide any information regarding Seller requested by Buyer. Each Processor may rely on the previous sentence as written authorization of Seller to provide any information requested by Buyer. Each Processor is hereby irrevocably auth01ized and directed by Seller to follow any instruction of Buyer without inquiry as to Buyer's right or authority to give such instructions. Seller acknowledges the terms of the preceding sentence and agrees not to (a) interfere with Buyer's instructions or a Processor's compliance with this Agreement or(b)request any modification thereto without Buyer's prior writtenconsent.
6. | Fees and Charges:Other than the OriginationFee,ifany,set forth above, Buyer is NOT CHARGING ANY ORIGINATION OR BROKER FEES to Seller. If Seller is charged another such fee, itisnot being charged by Buyer. A list of all fees andcharges applicable under this Agreement is contained in AppendixA. |
7. | Credit Report and Other Authorizations:Seller and each of the Owners signing above authorize Buyer, its agents and representatives andanycredit reporting agency engaged by Buyer, to (i) investigateanyreferences given or any otherstatements or data obtained from or about Seller or any of its Owners for the purpose of this Agreement, (ii) obtain consumer and business credit reports on the Seller and any of its Owners, and (iii) to contact personal and business references provided by the Seller in the Application, at any time now or for so long as Seller and/or Owners continue to have any obligation owed to Buyer as a consequence of this Agreement or for Buyer's ability to determine Seller's eligibility to enter into any future agreement with Buyer. |
8. | AuthorizationtoContact Current and Prior Banks:Seller hereby authorizes Buyer to contact any current or prior bank of the Seller in order to obtain whatever information it may require regarding Seller's transactions with any such bank. Such information may include but is not limited to, information necessary to verify the amount ofFutureReceipts previously processed on behalf of Seller andanyfees that may have been charged by the bank. In addition, Seller authorizes Buyer to contact any current or prior bank of the Seller for collections and in order to confirm that Seller is exclusively using the Account identified above, or any other account approved by Buyer, for the deposit of all businessreceipts. |
9. | Financial Information.Seller authorizes Buyer and its agents to investigate its financial responsibility and history, and will provide to Buyer any authorizations, bank or financial statements, tax returns, etc., as Buyer deems necessary in its sole discretion prior to or at any time after execution of this Agreement.Aphotocopy of this authorization will be deemed acceptable as an authorization for release of financial and credit information. Buyer is authorized to update such information and financial and credit profiles from time to time as it deems appropriate. Seller waives, to the maximum extent permitted by law, any claim for damages against Buyer or any of its affiliates relating to any investigation undertaken by or on behalf of Buyer as permitted by this Agreement or disclosure of information as permitted by thisAgreement. |
10. | Transactional History.Seller authorizes all of its banks and brokers and Payment Card processors to provide Buyer with Seller's banking, brokerage and/or processing history to determine qualification or continuation in this program, or for collections upon an Event ofDefault. |
11. | Publicity.Seller hereby authorizes Buyer to use its name in listings of clients and in advertising and marketingmaterials. |
12. | Application ofAmountsReceived by Buyer.Buyer reserves the right to apply amounts received by it under this Agreement to any fees or other charges due to Buyer from Seller prior toapplyingsuch amounts to reduce the amount of any outstanding PurchasedAmount. |
13. | Representations, Warranties and Covenants of Seller: |
13.1. Good Faith, Best Efforts and Due Diligence.Seller will conduct its business in good faith and will use its best efforts to continue its business at least at its current level, to ensure that the Buyer obtains the Purchased Amount.
13.2. Stacking Prohibited.Seller shall not enter into any Seller cash advance or any loan agreement that relates to or involves its FutureReceiptswithany party other than Buyer for the duration of this Agreement. Buyer may share information regarding this Agreement with any third party in order to determine whether Seller is in compliance with thisprovision.
13. 3.Financial Condition and Financial Information.Any bank statements and financial statements of Seller that have been furnished toBuyer,and future statements that will be furnished to Buyer, fairly represent the financial condition of Seller at such dates, and Seller will notify Buyer immediately if there are material adverse changes, financial or otherwise, in the condition or operation of Seller or any change in the ownership of Seller. Buyer may request statements at any time during the performance of this Agreement and the Seller shall provide them to Buyer within five business days.Furthermore, Seller represents that all documents, forms and recorded interviews provided to or with Buyer are true, accurate and complete in all respects, and accurately reflect Seller's financial condition and results of operations. Seller further agrees to authorize the release of any past or future tax returns toSeller.
13.4. Government Approvals.Seller in compliance and shall comply with all laws and has valid permits, authoriztions and licenses to own, operate and lease its properties and to conduct the business in which it is presently engaged and/ or will engage in hereafter.the person(s) signing this Agreement on behalf of Seller, have full power and authority to incur and perform the obligations under this Agreement, all of which have been dulyauthorized.
13.5. Authority to Enter Into This Agreement.Seller and the person(s) signing this Agreement on behalf of Seller, have full power and authority to incur and perform the obligations under this Agreement, all of which have been dulyauthorized.
13.6. Change of Name or Location or Sale or Closing of Business.Seller will not conduct Seller's businesses under any name other than as disclosed to Buyer or change any of its places of business without prior written consent ofBuyer.Seller will not sell, dispose, transfer or otherwise convey all or substantially al1 of its business or assets without (i) the express prior written consent ofBuyer,and (ii) the written agreement of any purchaser or transferee assuming all ofSeller's obligations under this Agreement pursuant to documentation satisfactory to Buyer. Except as disclosed to Buyerinwriting, Seller has no current plans to close its business either temporarily,whether for renovations, repairs or any other purpose,or permanently.Seller agrees that until Buyer has received all of the Purchased Amount Seller will not voluntarily close its business on a temporarily basis for renovations, repairs, or anyotherpurposes. This provision, however, does not prohibit Seller from closing its business temporarily if such closing is required to conduct renovations or repairs that are required by local ordinance or other legal order, such as from a health or fire inspector, or if otherwise forced to do so by circumstances outside of the control of Seller. Prior to any suchclosure,Seller will provide Buyer ten business days notice to the extentpracticable.
13.7. No Pending or Contemplated Bankruptcy.As of the date Seller executes this Agreement, Seller is not insolvent and does not contemplate and has not filed any petition for bankruptcy protection under Title 11 of the United States Code and there has been no involuntary petition brought or pending against Seller. Seller represents that it has not consulted with a bankruptcy attorney within six months prior to the date of this Agreement. Seller further warrants that it does not anticipate filing a bankruptcy petition and it does notanticipatethat an involuntary petition will be filed againstit.
13.8. Seller to Maintain Insurance.Seller will possess and maintain insurance in such amounts andagainstsuch risks as are necessary to protect its business and will provide proof of such insurance to Buyer upondemand.
13.9. Seller to PayTaxesPromptly.Seller will promptly pay all necessarytaxes,including but not limited to employment and sales and usetaxes.
13.10. No Violation of Prior Agreements.Seller’s execution and performance of this Agreement will not conflict with any other agreement, obligation, promise, court order, administrative order or decree, law or regulation to which Seller is subject, including any agreement the prohibits the sale or pledge of Seller’s future receipts.
13.11. No Diversion of Receipts.Seller will not permit any event to occur that could cause a diversion of any of Seller's Future Receipts from the Account to any otherentity.
13.12. Seller's Knowledge and Representation.Seller represents warrants and agrees that it is a sophisticated business entity familiar with the kind of transaction covered by theAgreement;it was represented by counsel or had full opportunity toconsultwith counsel.
14. | Rights ofBuyer: |
14.1.Acknowledgmentof Security Interest and Security Agreement.TheFutureReceipts sold by Seller to Buyer pursuant to this Agreementare "accounts" or"paymentintangibles"asthosetermsare defined in the UniformCommercialCode as in effect in the statein which the Seller is located(the "UCC")and suchsaleshall constitute and shall be construed and treated for all purposesas a true and complete sale,conveying good title to the Future Receipts free and clear of any liensand encumbrances,from Seller to Buyer. To the extent the Future Receipts are "accounts" or "paymentintangibles"then (i) the sale of the Future Receipts creates a security interest as defined in the UCC, (ii) this Agreement constitutesa"securityagreement" under theUCC, and(iii) Buyer has all the rights ofasecured party under the UCC with respect to suchFutureReceipts. Seller further agrees that,withor without anEventof Default, Buyer may notify account debtors,orother persons obligatedonthe Future Receipts, of Seller's saleof the Future Receiptsandmay instruct them to make payment or otherwise render performance to or forthebenefit ofBuyer.
14.2.Financing Statements.Seller authorizes Buyer to fileoneor more UCC-1 forms consistentwiththe UCC to give notice that the PurchasedAmountofFutureReceipts is the sole property of Buyer. The UCC filing maystatethatsuch saleis intended to bea sale and not an assignment forsecurity andmay state that the Seller is prohibited from obtaininganyfinancing that impairs thevalueof the Future Receipts or Buyer's right to collect same. Seller authorizes Buyer to debit the Account for all costs incurred by Buyer associated with the filing, amendment or termination of anyUCCfilings."
14.3. | Right of Access.In order to ensure that Seller is complying with the terms of this Agreement, Buyer shall have therightto(i) |
enter, withoutnotice, the premises of Seller's business for the purpose of inspecting and checking Seller's transaction processing terminals to ensure the terminalsareproperly programmed tosubmit andor batch Seller's daily receipts to the Processorandto ensure thatSellerhas notviolatedanyotherprovision of thisAgreement,and (ii) Seller shall provide access to its employees and recordsand allother items as requested by Buyer,and (iii)have Seller provide information about its business operations, banking relationships,vendors, landlord and other information to allow Buyer to interview any relevantparties.
14.4. | Phone Recordings and Contact.Seller agrees that any call between Buyer and Seller, and their agents and employeesmaybe |
recorded or monitored.Further,Seller agrees that (i) it hasan establishedbusiness relationshipwithBuyer, its employees andagents andthat Seller may be contactedfromtime-to-time regarding this or other business transactions; (ii) that such communicationsandcontacts are not unsolicited or inconvenient; and (iii) that any such contact may be made atanyphone number, emails address, or facsimile number given to Buyer by the Seller, its agents oremployees,including cellular telephones.
15. | EventsofDefault.The occurrence of any of the followingeventsshall constitute an"Eventof Default": (a) Seller interferes with Buyer's right to collect the Daily Amount; (b) Sellerviolatesany term or covenant in this Agreement; (c) Seller uses multiple depository accounts without the prior written consent ofBuyer; (d) Sellerchanges itsdepositingaccountor its payment card processor without the priorwrittenconsent of Buyer; (e) Seller defaults under any of the terms,covenants and conditions of any other agreementwith Buyer (f) Seller fails to provide timely notice to Buyer such that in any given calendar month there are fourormore ACH transactions attempted by Buyerarerejected by Seller'sbank. |
16. | Remedies.If any Event of Default occurs, Buyer may proceed to protect and enforce itsrightsincluding, but not limited to,the following: |
16.1. TheSpecifiedPercentage shallequal100%. The full uncollected Purchased Amount plusall feesand charges (including legal fees)due under thisAgreementwill become due and payableinfullimmediately.
16.2. | Buyer mayenforcetheprovisionsof the PersonalGuarantyof Performance against eachOwner. |
16.3. | Buyer may proceed to protect and enforce its rightsandremedies by arbitration or lawsuit.In anysuch arbitration or lawsuit, under which Buyer shallrecoverJudgment against Seller, Sellershallbe liable for all of Buyer's costs of the lawsuit, including but not limited to all reasonable attorneys' fees and court costs. However, the rights of Buyer under this provision shall be limitedasprovidedin thearbitrationprovision setforthbelow. |
16.4. | ThisAgreementshall be deemed Seller's Assignment of Seller's Lease of Seller's business premises to Buyer.Upon an Eventof |
Default, Buyer mayexerciseitsrightsunder this Assignment of Leasewithoutprior notice to Seller.
16.5. Buyermay debit Seller's depositoryaccounts whereversituated by means of ACH debitor facsimile signatureon a computer generatedcheck drawn on Seller's bank account or otherwise forallsums due toBuyer.
16.6. | Seller shall pay to Buyer all reasonable costs associated with the Event of Default and the enforcement of Buyer's remedies, including but not limited to court costs andattorneys'fees. |
16.7. | Buyer may exercise and enforce its rights asasecured party under theUCC. |
16.8.All rights, powers and remedies of Buyerinconnection with this Agreement may be exercised at any time by Buyerafterthe occurrence of an Event of Default, are cumulative and not exclusive, and shall be in addition to any other rights, powers or remedies provided by law orequity.
17. | Modifications; Agreements.No modification, amendment, waiver or consent of any provision ofthis Agreement shall be effective unless thesameshall be in writing and signed byBuyer. |
18. | Assignment.Buyer may assign, transfer or sell its rights toreceivethe Purchased Amount or delegate its duties hereunder, either in whole or in part, with or without prior written notice toSeller. |
19. | Notices. |
19.1. | Notices from Buyer to Seller. Buyer may send any notices, disclosures, terms and conditions, other documents, and any future changes to Seller by regular mailorby e-mail, at Buyer's option and Seller consents tosuchelectronic delivery. Notices sent bye-mailare effective when sent. Notices sent by regular mail become effective upon mailing to Seller's addresssetforth in this Agreement. |
19.2.Notices from Seller to Buyer. Seller may send any notices to Buyer by e-mail only upon the prior written consent of Buyer, which consent may be withheld or revoked at any time in Buyer's sole discretion. Otherwise, any notices or other communications fromSeller to Buyer must be delivered by certifiedmail,return receipt requested, to Buyer's address set forth in thisAgreement. Notices sentto Buyer shall become effective only upon receipt byBuyer.
20. | Binding Effect; GoverningLaw, Venueand Jurisdiction.This Agreement shall be binding upon and inure to the benefit of Seller, Buyerandtheir respective successors andassigns,except that Seller shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of Buyer which consent may be withheld in Buyer's solediscretion.This Agreement shall be governed byandconstrued in accordance with the laws of the state of NewYork,without regards to any applicable principals of conflicts of law. Anysuit,action or proceeding arising hereunder, or the interpretation, performance or breach of this Agreement, shall, if Buyersoelects, be instituted in any court sitting in NewYork,(the"AcceptableForums"). Seller agrees that the Acceptable Forums are convenient to it,andsubmits to the jurisdiction of the Acceptable Forums and waives any andallobjections to jurisdiction or venue. Should such proceeding be initiated in any other forum,Seller waivesanyright to opposeanymotion or application made by Buyer to transfersuchproceeding to an AcceptableForum. |
21. | Survivalof Representation, etc.All representations, warranties and covenants herein shall survive the execution and delivery of this Agreement and shall continue in full force until all obligations under this Agreement shall have been satisfied infull. |
22. | Interpretation.All Parties hereto havereviewedthis Agreement with an attorney of their own choosing and have relied only on their ownattorney'sguidance and advice. No construction determinations shall be made againsteitherParty heretoasdrafter. |
23. | EntireAgreementand Severability.This Agreement embodies the entire agreement between Seller and Buyerandsupersedesallprioragreementsandunderstandingsrelatingtothesubjectmatterhereof.IncaseanyoftheprovisionsinthisAgreementisfound to be invalid, illegal or unenforceable in any respect, thevalidity,legality and enforceability of anyotherprovision contained herein shall not in any way be affected orimpaired. |
24. | Facsimile Acceptance.Facsimile signatures hereon, or otherelectronicmeans reflectingtheparty's signature hereto,shallbe deemedacceptable forallpurposes. |
25. | Confidentiality:The terms and conditions of thisAgreement areproprietary and confidential unlessrequiredby law. Seller shall not disclose this information to anyone other than its attorney, accountant or similarserviceprovider and then only to the extent suchperson uses the information solely for purpose of advising Seller and first agrees in writing to be bound by the terms ofthis |
Section. Abreach entitles Buyertodamages and legalfees as well as temporaryrestrainingorder andpreliminaryinjunction without bond.
26. | Monitoring, Recording, andSolicitations. |
26.1.Authorization to Contact SellerbyPhone. Seller authorizes Buyer,itsaffiliates, agents andindependentcontractorsto contact Sellerat any telephonenumber Sellerprovidesto Buyer or from which Seller places a call to Buyer, oranytelephone number where Buyerbelieves it mayreach Seller,usingany means of communication,including butnotlimited tocalls ortextmessages to mobile, cellular, wireless or similar devices or calls ortextmessages using anautomatedtelephone dialing system and/or artificial voices or prerecorded messages, even if Seller incurs charges for receiving suchcommunications.
26.2.Authorization to Contact SellerbyOther Means. Seller also agreethatBuyer,its affiliates, agents and independent contractors, mayuseany other medium notprohibitedby law including,butnotlimitedto, mail, e-mail and facsimile, to contact Seller. Seller expressly consents to conduct business by electronicmeans.
27. | JURY WAIVER. THE PARTIES WAIVE THE RIGHT TO A 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 TRANSACTIONS OF WHICH THIS AGREEMENT IS AP ART OR ITS ENFORCEMENT, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY. THE PARTIES ACKNOWLEDGE THAT EACH MAKES THIS WAIVER KNOWINGLY, WILLINGLY AND VOLUNTARILY ANDWITHOUTDURESS,ANDONLY AFTER EXTENSIVE CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER WITH THEIRATTORNEYS. |
28. | CLASS ACTION WAIVER. THE PARTIES WAIVE ANY RIGHT TO ASSERT ANY CLAIMS AGAINSTTHEOTHER PARTY AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BYLAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY. TO THE EXTENT EITHER PARTY IS PERMITTEDBYLAWOR COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES AGREETHAT: |
(I) | THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS' FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOT WITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT); AND (II) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVEACTION. |
29. | ARBITRATION. IF BUYER, SELLER OR ANY GUARANTOR REQUESTS, THE OTHER PARTIES AGREE TO ARBITRATE ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT. IF BUYER, SELLER OR ANY GUARANTOR SEEKS TO HAVE A DISPUTE SETTLED BY ARBITRATION, THAT PARTY MUST FIRST SEND TO ALL OTHER PARTIES, BY CERTIFIED MAIL, A WRITTEN NOTICE OF INTENT TO ARBITRATE. IF BUYER, SELLER OR ANY GUARANTOR DO NOT REACH AN AGREEMENT TO RESOLVE THE CLAIM WITHIN 30 DAYS AFTER THE NOTICEIS RECEIVED, BUYER, SELLER OR ANY GUARANTOR MAY COMMENCE AN ARBITRATION PROCEEDING WITH THE AMERICAN ARBITRATION ASSOCIATION ("AAA") OR NATIONAL ARBITRATION FORUM ("NAF"). BUYER WILL PROMPTLY REIMBURSE SELLER OR THE GUARANTOR ANY ARBITRATION FILING FEE, HOWEVER, IN THE EVENT THATBOTH SELLERAND THEGUARANTORMUSTPAYFILINGFEES, BUYER WILLONLY REIMBURSE SELLER'S ARBITRATION FILING FEE AND, EXCEPT AS PROVIDED IN THE NEXT SENTENCE, BUYER WILL PAY ALL ADMINISTRATION AND ARBITRATOR FEES. IF THE ARBITRATOR FINDS THAT EITHER THE SUBSTANCE OF THE CLAIM RAISED BY SELLER OR THE GUARANTOR OR THE RELIEF SOUGHT BY SELLER OR THE GUARANTOR IS IMPROPEROR NOT WARRANTED, AS MEASURED BY THE STANDARDS SET FORTH IN FEDERAL RULE OF PROCEDURE ll(B), THEN BUYER WILL PAY THESE FEES ONLY IF REQUIRED BY THE AAA OR NAF RULES. SELLER AND THE GUARANTOR AGREE THAT, BY ENTERING INTO THIS AGREEMENT, THEY ARE WAIVING THE RIGHT TO TRIAL BY JURY. BUYER, SELLER OR ANY GUARANTOR MAY BRING CLAIMS AGAINST ANY OTHER PARTY ONLY IN THEIR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, BUYER, SELLER AND ANY GUARANTOR AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS FOR MORE THAN ONE PERSON'S CLAIMS, ANDMAY NOTOTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISION IS FOUND UNENFORCEABLE, THEN THE ENTIRETY OF TIDS ARBITRATION CLAUSE SHALL BE NULL ANDVOID. |
30. | RIGHT TO OPT OUT OF ARBITRATION. SELLER AND GUARANTOR(S) MAY OPT OUT OF THIS CLAUSE. TO OPT OUT OF THIS ARBITRATION CLAUSE, SELLER AND EACH GUARANTOR MUST SEND BUYER A NOTICETHATTHESELLERANDEACHGUARANTORDOES NOT WANT THIS CLAUSE TO APPLY TO THIS AGREEMENT. FOR ANY OPT OUT TO BE EFFECTIVE, SELLER AND EACH GUARANTOR MUST SEND AN OPT OUT NOTICE TO THE FOLLOWING ADDRESS BY REGISTERED MAIL, WITHIN 14 DAYS AFTER THE DATEOFTHISAGREEMENT: BUYER-ARBITRATIONOPTOUT,C6CAPITAL,LLC351E84THSTSUITE#27E, NEW YORK, NY 10028, ATTENTION: LEGALDEPARTMENT. |
31. | SERVICE OF PROCESS. IN ADDITION TO THE METHODS OF SERVICE ALLOWED BY THE NEW YORK STATE CIVIL PRACTICE LAW & RULES ("CPLR"), SELLER HEREBY CONSENTS TO SERVICE OF PROCESS UPON IT BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, SERVICE HEREUNDER SHALL BE COMPLETE UPON SELLER'S ACTUAL RECEIPT OF PROCESS OR UPON BUYER'S RECEIPT OF THE RETURN THEREOF BY THE UNITED STATES POSTAL SERVICE AS REFUSED OR UNDELIVERABLE. SELLER MUST PROMPTLY NOTIFY BUYER, IN WRITING, OF EACH AND EVERY CHANGE OF ADDRESS TO WHICH SERVICE OF PROCESS CAN BE MADE. SERVICE BY BUYER TO THE LAST KNOWN ADDRESS SHALL BE SUFFICIENT. SELLER WILL HAVE (30) CALENDAR DAYS AFTER SERVICE HEREUNDER IS COMPLETE IN WHICH TO RESPOND. FURTHERMORE, SELLER EXPRESSLY CONSENTS THAT ANY AND ALL NOTICE(S), DEMAND(S),REQUEST(S)OR OTHER COMMUNICATION(S) UNDERAND PURSUANT TO THIS AGREEMENT FOR THE PURCHASE AND SALE OF FUTURE RECEIVABLES SHALL BE DELIVERED IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT FOR THE PURCHASE AND SALE OF FUTURE RECEIVABLES. |
Appendix A-List of Fees and Charges
In addition to the Purchased Amount of Future Receipts, the Agreement provides that the following fees shall be applied:
1. | Underwriting Fee-$295.00 |
2. | Non-Sufficient Funds (NSF) Fee-$35.00 each (Up to FOUR TIMES ONLY before a default is declared) |
3. | Stopped Fee-$135.00 |
4. | ACH Processing Fee-$12.50 |
5. | UCC Filing Fee-$150.00 |
6. | Default Fee-$2,500.00 |
7. | FinancingFee:$22,717.50 |
PERSONAL GUARANTY OF PERFORMANCE
This Personal Guaranty of Performance (this "Guaranty") is executed as ofMARCH 620 , byCARL DORVIL
------------(the "Guarantor"), for the benefit of C6 CAPITAL, LLC ("Buyer").
Capitalized terms used herein, but not defined,shall have the meanings assigned to them in the Purchase Agreement (as hereinafter defined).
RECITALS
A. | Pursuant to that Agreement for the Purchase and Sale of Future Receipts (the "Purchase Agreement"),datedofeven date herewith,betweenBuyerand"Seller"),BuyerhaspurchasedFutureReceiptsofSeller. |
B. | Buyer is not willing to enter into the Purchase Agreement unless Guarantor irrevocably,absolutely andunconditionallyguarantees prompt and complete performance to Buyer of all of the obligations of Seller;and |
C. | Guarantor will directly benefit from Buyer and Seller entering into the PurchaseAgreement. |
AGREEMENT
As an inducement to Buyer to purchase the Future Receipts identified in the Purchase Agreement, and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, Guarantor does hereby agree as follows:
1. Defined Terms:All capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the PurchaseAgreement.
2. Guaranty of Obligations:Guarantor hereby irrevocably,absolutely and unconditionally guarantees to Buyer prompt andcompleteperformance of all of Seller's obligations under the PurchaseAgreement.
3. Guarantor's Other Agreements:Guarantor will not dispose, convey, sell or otherwise transfer, or cause Seller to dispose, convey, sell or otherwise transfer, any material business assets of Seller without the prior written consent ofBuyer,which may be withheld for any reason, until receipt of the entire Purchased Amount. Guarantor hereby agrees to pay all costs and attorney's fees incurred by Buyer in connection with any actions commenced by Buyer to enforce its rights or incurred in any action to defend its performance under the Purchase Agreement andthisGuaranty.This Guaranty is binding upon Guarantor, and Guarantor'sheirs,legalrepresentatives,successors andassigns.Ifthere is more than one Guarantor, theobligationsof the Guarantors hereunder shall be joint and several. The obligation of Guarantor shall be unconditional and absolute, regardless of the unenforceability of any provision ofany agreement between Seller andBuyer,or the existence of any defense, setoff or counterclaim which Seller may assert. Buyer is hereby authorized,without notice or demand and without affecting the liability of Guarantor hereunder, to at any time renew orextendSeller's obligations under the Purchase Agreement or otherwise modify, amend or change the terms of the Purchase Agreement. Guarantor is hereby notified that a negative credit report reflecting on his/her credit record may be submitted to a creditreportingagencyifthetermsofthisGuarantyarenothonoredbythe Guarantor.
4. Waiver; Remedies:No failure on the part of Buyer to exercise,and no delay in exercising, any right under this Guaranty shall operate as a waiver, nor shall any single or partial exercise of any right underthis Guaranty preclude any other or further exercise of any other right. The remedies provided in this Guaranty are cumulative and not exclusive of any remedies provided by law or equity.Inthe event that Seller fails to perform any obligation under the PurchaseAgreement,Buyer mayenforce its rights under this Guaranty without first seeking to obtain performance for such default from Seller or any otherguarantor.
5. AcknowledgmentofPurchase:Guarantor acknowledges and agrees that the Purchase Price paid by Buyer to Seller in exchange for tl1e Purchased Amount is a purchase of the Purchased Amount and is not intended to be treated as a loan or financial accommodation from Buyer toSeller.Guarantor specifically acknowledges Buyer is not alender,bank or credit card processor, and thatBuyerhasnotofferedanyloanstoSeller,andGuarantorwaivesanyclaimsordefensesof usuryinanyactionarisingoutofthis
Guaranty. Guarantor acknowledges the Purchase Pricepaidto Seller is goodandvaluable consideration for the saleofthe Purchased Amount of FutureReceipts.
6. Governing Law and Jurisdiction: This Guaranty shallbegovernedby,and constructed in accordance with,the internallawsof the State of New York withoutregard toprinciples of conflicts oflaw.Except as providedinSection 9of thisGuaranty, Guarantor submits to the exclusive jurisdictionandvenueofthe state or federal courtshavingjurisdiction over anycity/countyintheState of New York ofany claimsor actions arising, directly or indirectly, out of or relatedto thisGuaranty. The parties stipulate that the venuesreferenced in thisAgreementare convenient. Thepartiesfurther agree thatthe mailing bycertified or registered mail, return receiptrequested,of any processrequiredby any such court willconstitutevalid andlawfulservice ofprocess againstthem, withoutthe necessityfor servicebyanyother means providedby statute or rule of court,but without invalidatingservice performedinaccordance with such otherprovisions.
7. JURY WAIVER: THE PARTIES WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY COURT INANYSUIT, ACTION OR PROCEEDING ON ANY MATTER ARISING IN CONNECTION WITH OR IN ANYWAY RELATED TO THE TRANSACTIONS OF WHICH THIS AGREEMENT IS A PART OR ITS ENFORCEMENT, EXCEPT WHERE SUCH WAIYER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINSTPUBLICPOLICY. THE PARTIES ACKNOWLEDGE THAT EACH MAKES THIS WAIVER KNOWINGLY, WILLINGLY AND VOLUNTARILY AND WITHOUT DURESS, AND ONLY AFTER EXTENSIVE CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER WITHTHEIRATTORNEYS.
8. | CLASS ACTION WAIVER: THE PARTIES WAIVE ANY RIGHT TO ASSERT ANY CLAIMS AGAINST THE OTHER PARTY AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY. TO THE EXTENT EITHERPARTYISPERMITTEDBYLAWORCOURTOF LAW TO PROCEED WITH A CLASSOR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES AGREE THAT: (I) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS' FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASSORREPRESENTATIVEACTION(NOTWITHSTANDINGANYOTHERPROVISIONINTIDSAGREEMENT);AND(II)THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIMOR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION. |
9. ARBITRATION: IF BUYER, SELLER OR ANY GUARANTOR REQUESTS,THEOTHER PARTIES AGREE TO ARBITRATE ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT. IF BUYER, SELLER OR ANY GUARANTOR SEEKS TO HAVE A DISPUTE SETTLED BY ARBITRATION, THAT PARTY MUST FIRST SEND TO THE OTHER PARTY, BY CERTIFIED MAIL, A WRITTEN NOTICE OF INTENT TO ARBITRATE. IF BUYER, SELLER OR ANY GUARANTOR DO NOT REACH AN AGREEMENT TO RESOLVE THE CLAIM WITHIN 30 DAYS AFTER THE NOTICE IS RECEIVED, BUYER, SELLER OR ANY GUARANTOR MAY COMMENCE AN ARBITRATION PROCEEDING WITH THE AMERICAN ARBITRATION ASSOCIATION("AAA") OR NATIONAL ARBITRATION FORUM ("NAF"). BUYER WILL PROMPTLY REIMBURSE SELLER OR THE GUARANTOR ANY ARBITRATION FILING FEE, HOWEVER, IN THE EVENT THAT BOTH SELLER AND THE GUARANTOR MUST PAY FILING FEES, BUYER WILL ONLY REIMBURSE SELLER'S ARBITRATION FILING FEE AND, EXCEPT AS PROVIDED IN THE NEXT SENTENCE, BUYER WILL PAY ALL ADMINISTRATION AND ARBITRATOR FEES. IF THE ARBITRATOR FINDS THAT EITHER THE SUBSTANCE OF THE CLAIM RAISED BY SELLER OR THE GUARANTOR OR THE RELIEF SOUGHT BY SELLER OR THE GUARANTOR IS IMPROPER OR NOT WARRANTED, AS MEASURED BY THE STANDARDS SET FORTH IN FEDERAL RULE OF PROCEDURE ll(B), THEN BUYER WILL PAY THESE FEES ONLY IF REQUIRED BY THE AAA OR NAF RULES. SELLER AND THE GUARANTOR AGREE THAT, BY ENTERING INTO THIS AGREEMENT, THEY ARE WAIVING THE RIGHT TO TRIAL BY JURY. BUYER, SELLER OR ANY GUARANTOR MAY BRING CLAIMS AGAINSTANYOTHER PARTY ONLY IN THEIR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, BUYER, SELLER AND ANY GUARANTOR AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS FOR MORE THAN ONE PERSON'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING,ANDTHAT IF THIS SPECIFIC PROVISION IS FOUND UNENFORCEABLE, THEN THE ENTIRETY OF THIS ARBITRATION CLAUSE SHALL BE NULL ANDVOID.
IO.RIGHT TO OPT OUT OF ARBITRATION: SELLER AND GUARANTOR(S) MAY OPT OUT OF THIS CLAUSE. TO OPT OUT OF THIS ARBITRATION CLAUSE, SELLER AND EACH GUARANTOR MUST SEND BUYER A NOTICE THAT THE SELLERANDEACH GUARANTOR DOES NOT WANT THIS CLAUSE TO APPLY TO THIS AGREEMENT. FOR ANY OPT OUT TO BE EFFECTIVE, SELLER AND EACH GUARANTOR MUST SEND AN OPT OUT NOTICE TO THE FOLLOWING ADDRESS BY REGISTERED MAIL, WITHIN 14 DAYS AFTER THE DATE OF THIS AGREEMENT: BUYER-ARBITRATION OPT OUT, C6CAPITAL,LLC351E84THSTSUITE#27E,NEWYORK,NY10028,
ATTENTION: LEGAL DEPARTMENT.
11. SERVICE OF PROCESS.INADDITION TO THE METHODS OF SERVICE ALLOWED BY THE NEW YORK STATE CIVIL PRACTICE LAW&RULES ("CPLR"), GUARANTOR HEREBY CONSENTS TO SERVICE OF PROCESS UPON IT BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, SERVICE HEREUNDER SHALL BE COMPLETE UPON GUARANTOR'S ACTUAL RECEIPT OF PROCESS OR UPON BUYER'S RECEIPT OF THE RETURN THEREOF BY THE UNITED STATES POSTAL SERVICE AS REFUSED OR UNDELIVERABLE. GUARANTOR MUST PROMPTLY NOTIFY BUYER,INWRITING, OF EACH AND EVERY CHANGE OF ADDRESSTO
WHICH SERVICE OF PROCESS CAN BE MADE. SERVICE BY BUYER TO THE LAST KNOWN ADDRESS SHALL BE SUFFICIENT. GUARANTOR WILL HAVE (30) CALENDAR DAYS AFTER SERVICE HEREUNDER IS COMPLETE IN WHICH TO RESPOND. FURTHERMORE, GUARANTOR EXPRESSLY CONSENTS THAT ANY AND ALL NOTICE(S), DEMAND(S), REQUEST(S) OR OTHER COMMUNICATION(S) UNDER AND PURSUANT TO THIS AGREEMENT FOR THE PURCHASEAND SALE OF FUTURE RECEIVABLES SHALL BE DELIVERED IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT FOR THE PURCHASE AND SALE OF FUTURERECEIVABLES.
12. Severability:If for any reason any court of competent jurisdiction finds any provisions of this Guaranty to be void or voidable, the parties agree that the court may reform such provision(s) to render the provision(s) enforceable ensuring that the restrictions and prohibitions contained inthis Guaranty shallbe effective to the fullest extent allowed under applicablelaw.
13. Opportunity for Attorney Review:The Guarantor represents that it has carefully read this Guaranty and has, or had a reasonable opportunityto,consult with its attorney.Guarantor understands the contents ofthisGuaranty, and signs this Guaranty as its free act and deed.
14. Counterparts and Facsimile Signatures:This Guaranty may be signedin one or more counterparts, each of which shall constitute an original and all of which when taken together shall constitute one and the same agreement. Facsimile or scanned documents shall have the same legal force and effect as an original and shallbe treated as an original document for evidentiary purposes.
/s/ Carl Dorvil
AUTHORIZATION AGREEMENT
FOR AUTOMATED CLEARING HOUSE TRANSACTIONS
GEXMANAGEMENT.INCJ GEXMANAGEMENTINCOBAMYEASYHQ/ATHERIA,UC/DORVILFINANCIALGROUP.LLC/QUANTUMENERGY&FINANCE.LLCIGEXINSTITUTE,
("Seller")herebyauthorizesBuyer ("Buyer")to presentautomatedclearing house
(ACH) debits to the following checking account in the amount of fees and other obligations due to Buyer from Seller under the terms of that Agreement for the Purchase and Sale of Future Receipts (the"Agreement")entered into between Seller andBuyer,as it may be amended, supplemented or replaced from time to time.Inaddition, if an Event of Default (as defined in the Agreement) occurs, Seller authorizes Buyer to debit any and all accounts controlled by Seller or controlled by any entity with the sameFederalTaxIdentification Number asSellerup to thetotalamount,including but not limitedto,all fees and charges, due to Buyerfrom Sellerunder the terms of the Agreement.
TransferFundsTo/From: Name of Bank:_ _ __
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ABA Transit/Routing#:------------
Checking Account#:- - - - - - - - - - - - - --
Thisauthorizationis to remain infullforce andeffectuntil all obligations due to Buyer under the Agreement have been fulfilled.
GEX MANAGEMENT,INCJGEX MANAGEMENTINCD8AMYEASYHQ/ATiiERIA,LLC/ OORVll
FINANCIAL GROUP,LLCJQUANTUMENERGY&FINANCE,UC/GEXINSTITUTE, LLC/SUCCESS
Seller Information:
Seller's Nrune:
TRAININGINSTITIJTE.LLCJGROUPEXCELLENCEMANAGEMENT,LLC/GXCELLENCE,
LLC/MvEASvHa,LLc,successovNASTY,LL,cuscaNsou□ATeurs.LLc------
Signature of Authorized Representative:
/s/
Seller's TaxID·56-2428818
Date: ----- - - --- -- -
GEXMANAGEMENT,INCJ GEX MANAGEMENTINC OBAMYEASYHQ/ ATHERIA.UCJDORVIL FINANCIAL GROUP,U.C/QUANTUMENERGY&FINANCE,LLC/ GEX INSTITUTE,LLC/SUCCESS
1 |
Seller'sName:1:;! ,g;i6;s.e67 G }g'sCLLLENc
/s/ Carl Dorvil
Print Name:__ _ _
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Seller'sTaxID:56-2428818
Date:-------------
[Attached Voided Check Here]
Dear Seller,
Please fill out the form below with the access information for your bank account, please write legibly and indicatelower/uppercase sensitivity.
Legal Name/ DBA:_______________________
Bank portalwebsite:
Usemame:_ _
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Security Question/Answer!:_ _ __
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Security Question/Answer2:
Security Question/Answer3:
Security Question/Answer4:
Security Question/Answer5:
Security Question/Answer 6:_ _ _ _
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Any other info1mation necessary to access your account:_ _ _
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