ACCOUNTS RECEIVABLE PURCHASE AGREEMENT
THIS ACCOUNTS RECEIVABLE PURCHASE AGREEMENT is entered into on_________________, 2001, by and between _________________________________________ (hereinafter "Factor or Purchaser") and Cash Today USA Inc. (hereinafter "Client or Seller"), a Florida Corporation doing business at 5701 Margate Boulevard, Margate, Fl 33063.
WITNESS
WHEREAS, Client is engaged in the business of public retail lending, and sells and delivers product and/or provides services to Customers on a credit basis, and
WHEREAS, Client desires to obtain funds for operation of its business through the sale of Accounts Receivable Checks acceptable to Factor, and
NOW, THEREFORE, in consideration of the covenants and conditions set forth herein, and other good and valuable considerations, the receipt of which is acknowledged, Factor and Client agree as follows:
1. Whereas Clauses. All "Whereas" Clauses and other matters set out herein are incorporated herein by reference. The use of words "Account(s)", "Invoice(s)" and "Check(s)" are all-interchangeable.
2. Approval. Factor shall not be obligated to purchase any Account(s) from Client; however, once an Account/Check is submitted by Client and accepted by Factor, Factor shall have the right, but not the obligation, to purchase all subsequent Accounts/Checks relative to that Customer.
3. Fee. The fee paid by Client to Factor for factoring Accounts Receivable Checks is three percent (3.0%) per month simple interest [Thirty Six (36%) per year] of the initial amount of checks purchased by Factor during the term of this Agreement and the option to renew, if such option is exercised by Factor. Payment of fee by Seller to Purchaser will be paid on the first day of each month. However, the first payment period will be prorated based on date this Agreement takes affect. The rate of three (3.0%) per month will also be applied to any funds added by Factor to initial sum during the term of this Agreement.
4. Notice of Dispute. At the time Factor purchases an Account, no defense, offset, or counterclaim shall exist with respect to such Account. Client shall provide written notice to Factor within twenty four (24) hours of Client obtaining any knowledge, from any source, of any dispute or disagreement of any nature between the Client and a Customer. Factor shall have the right, but not the obligation, to settle any dispute directly with the Customer; however, any such settlement shall not relieve Client of responsibility for full payment of such Account. Client further agrees to repurchase from Factor in the event of a presumed dispute and/or breach of warranty, all Checks, which have had 15 days, elapse since the original Check date. The repurchase price of said Invoices shall be for an amount equal to the amount initially advanced by Factor, plus any fees earned by Factor as defined under paragraph 4 of this Agreement
5. Property of Factor. Upon Factor's purchase of an Account from Client, any and all payments from Customer as to that specific Account are the sole property of Factor, and Client agrees not to interfere with Customer's payment thereof. However, should Client pay Factor in full for such Account, or should any such Account be charged back or sold back to Client by Factor, then title thereto shall vest with Client.
6. Payments Received by Client. Client warrants and represents that at the time Factor purchases an Account from Client, no payment will have been made by the Customer named on Account, either to or for the benefit of the Client. In the event that Client receives a payment from Customer, which is the property of Factor, Client shall be deemed to have received payment in trust for Factor, and Client shall immediately turn over such payment to Factor. In the event Client receives a payment which is comprised of monies belonging partially to Client and partially to Factor, Client shall immediately turn over said payment to Factor in its original form and properly endorsed, and Factor shall, upon clearance of payment instrument by Factor's bank, forward a check to Client for Client's portion of the payment.
7. Representations and Warranties of Client. Client hereby represents and warrants to Purchaser that:
A. Client is a validly formed, existing Corporation in good standing under the laws of the state of Florida and said Corporation is properly licensed and authorized to operate its business under the trade name Cash Today USA
B. Client is not and will not be insolvent as that term is defined under bankruptcy law and the Uniform Commercial Code.
C. At the time of purchase of an Account by Factor, Client will be the lawful owner thereof, with good and undisputed title thereto, free and clear of any liens or encumbrances. Each Account shall represent an accurate and undisputed statement of indebtedness owed to Client by a Customer for a sum certain which is due and payable in 30 days or less, arising out of a bona fide sale, delivery and acceptance of product or performance of service by Client to Customer in the ordinary course of Client's business. No person, firm, corporation or business shall have any lien on, or claim to, such Account(s) or to the product described therein or any part thereof.
D. Client shall furnish Factor with full financial statements and other documents and information including, but not limited to, proof of payment and/or compliance with all federal, state and/or local tax requirements, as may be reasonably requested by Factor from time to time.
E. Client shall notify Factor in writing immediately after obtaining any knowledge from any source, of the filing, recording or perfection by any means, of any non-consensual lien, claim, levy, attachment, encumbrance or other court or legal proceeding or process against Client or any Customer, or against any property of Client or of any Customer.
F. Client does not, and will not, in any manner, whether directly or indirectly, own, control or exercise dominion over the business of any Account debtor/Customer to be offered or sold by Client to Factor.
G. Each and every document, statement, record, book, Account and Invoice, and all information, whether financial or otherwise, provided to Factor by Client, whether heretofore or thereafter, shall be true, accurate and correct.
H. Client shall not, under any circumstances or in any manner whatsoever, interfere with Factor's rights under this Agreement.
I. Client will not sell, factor or assign Accounts except to Factor during the term of this Agreement and/or for as long as any indebtedness whatsoever remains owing by Client to Factor, and Client has not heretofore sold, factored, assigned or encumbered any Account or Accounts, which are or may become subject to this Agreement.
J. Client shall not transfer, assign, or pledge any of its Accounts, and shall not grant a security interest therein, to any party other than Factor.
K. Client shall not alter, modify, or extend in any manner, the terms of the original Account with a Customer, including, but not limited to, the maximum credit limit of Customer or the time within which payment is to be made, without first obtaining Factor's written consent to such change.
L. Client has not transferred, pledged, assigned or granted a security interest in its assets, or any of them, which Client has not fully disclosed in writing to Factor.
M. Client has not permitted and shall not permit any lien, encumbrance or security interest to be created upon its assets, or any of them, including, but not limited to, its accounts receivable, without the prior written consent of Factor.
N. Client shall maintain its assets in good order and repair and shall maintain policies of insurance thereon satisfactory to Factor.
O. Client shall not sell, assign, pledge or encumber this Agreement or any rights whatsoever hereunder.
P. Client will immediately notify Factor in writing proper of any change in the locations of Client's place(s) of business or, if Client has or intends to acquire additional place(s) of business, or prior to any change in Client's primary executive office location, the office or offices where Client's books and records concerning Accounts are located.
Q. Client will immediately notify Factor in writing of any proposed change of Client's name, identity, legal entity, corporate structure, use of additional trade name(s), and/or any proposed change in any of the officers, principals, partners, and/or owners of Client's business.
R. At the time Client submits Invoices on Accounts to Factor for possible purchase, Client will pay for all postage, transportation and/or courier charges in full.
S. The purchase of Cash Today USA, Inc" accounts receivables carries no commissions or additional costs to factorer. All expenditures and, or fees including fees paid to independent factoring agents directly by Cash Today USA, Inc" out of administration cost.
8. Power of Attorney. In order to facilitate performance of this Agreement, Factor irrevocably appoints Client, or any person designated by Client, as its attorney in fact, which said appointment shall remain in full force and effect until all Accounts sold to Client have been paid in full and all obligations of Client to Client have been fully discharged, with full power to:
A. Receive and open all mail addressed, Factor, or to, Factor's trade name at Client address.
B. Endorse the name of Client or Client's trade name on any Checks or other evidences of payment that come into Factor's possession on Accounts sold to Client by, Factor or on which Client holds a security interest, and on any Invoices or other documents relating to any of such Accounts, and deposit same into any account designated by Client.
C. Client may, in, Factor's name, or otherwise, demand, sue for, collect, and subject to, Factor's prior written approval, give releases for any and all monies due or coming due on Accounts purchased by or pledged to Client.
D. Compromise, settle, prosecute or defend any action, claim or legal proceeding concerning Accounts purchased by or pledged to Factor.
E. Do any and all things reasonably necessary and proper to carry out the purpose and intent of this Agreement.
9. Inappropriate Payment. Should Factor receive a payment on an Account or other payment which Factor is incapable of identifying, Factor shall carry this payment as an open item and shall return it to Client or to Customer upon proof satisfactory to the Factor of the right thereto. If, however, such proof is not received within six (6) months following Factor's receipt of such payment, Factor shall have the right to consider such payment or unidentified item as credit toward any outstanding obligations or indebtedness of Client to Factor.
10. Default. Any one or more of the following shall represent a default under this Agreement:
A. Client fails to pay any indebtedness to Factor when due.
B. Client's breach of any term, provision, warranty or representation made hereunder or under any other agreement between Factor and Client.
C. The appointment of a receiver or trustee for all or a substantial portion of the assets of the Client. The insolvency of Client or the inability of Client to pay debts as they mature, or an assignment of assets by Client for the benefit of creditors, or the voluntary or involuntary filing of a petition in bankruptcy court or a similar proceeding in any court.
D. The filing or service of any levy, attachment, execution, tax assessment or similar legal process affecting or which could affect or threaten Client's or Factor's collateral.
E. The furnishing at anytime to Factor of a materially false or inaccurate document, representation, warranty, or other information or documentation by Client, whether financial or otherwise.
11. Remedies. In the event of a default by Client, Factor shall have the right to do the following, in addition to any and all other remedies provided by law:
A. Enforce the security interest granted hereunder.
B. Grant extensions, compromise claims and settles disputes with respect to the Account purchased by Factor, regardless of price or methods of payment, all done without prior notice to or permission of Client.
C. Return to Client any surplus realized and hold Client liable for any deficiencies as provided in the Uniform Commercial Code for the state of Florida or by state law.
D. In the event of Client's insolvency or bankruptcy, entire proceeds of Trust account at Client's bank will be distributed equally to Factors on a pro rata basis.
12. Confidentiality. Factor acknowledges that any knowledge or information relating to Client and Client's business and its operations is valuable, proprietary and confidential in nature, and Factor agrees to maintain full confidentiality of such information.
13. Non-Compete. Factor agrees for a period of two (2) years from the date of execution of this Agreement that he/she will not own, in whole or in part, consult with, be employed by, or otherwise engage or participate in any business in competition with Client's Business within a one hundred mile radius of Client's Business. Further, Factor agrees not to induce or attempt to induce any employee, client, Customer or consultant of Client to terminate or in any way alter their relationship with Client, or to disparage the business reputation or financial condition of Client. However, nothing contained herein shall prohibit Factor from offering the same or similar factoring services to any prospective Client and entering into this same or similar agreement with any prospective or new Client of Factor.
14. Termination. This Agreement shall continue in full force and effect unless terminated by ninety (90) day written notice by Factor to Client provided, however, that no such termination should terminate or otherwise affect Client's obligations hereunder incurred or accrued prior to such termination notice. Following any notice of termination, Client remains fully liable to Factor for any Accounts purchased before such termination, and Factor will continue to hold a security interest in Client's Accounts and other Collateral mentioned above until all existing indebtedness of Client to Factor has been paid in full or Factor is otherwise satisfied. Except for cause, this Agreement may be extended up to an additional twelve (12) months at Factor's option.
15. Glossary. The following terms shall have the following meanings when used in this Agreement:
A. "Account" means any and all rights to receive payment for goods sold or leased and delivered or for services rendered to a Customer of Client, which is not evidenced by an instrument and/or chattel paper, as those terms are defined in the Uniform Commercial Code for the state of Florida.
B. "Acceptable Account" means an Account conforming to the warranties and terms set forth herein, and otherwise acceptable to Factor.
C. "Invoice" means an Invoice on an Acceptable Account, conforming to the warranties and terms set forth herein, and otherwise acceptable to Factor.
D. "Customer" means Client's Customer or Account Debtor.
E. "Collateral" means the tangible and intangible property given as security for the obligations of Client under this Agreement.
F. "Warranty" means to guarantee, as a material element of this Agreement, and each separate warranty herein is also an independent condition to Client's performance and duties under this Agreement.
G. "Credit Dispute" means a claim of any kind whatsoever by Customer against Client that would reduce the amount collectible from Customer by Factor, arising from any disagreement whatsoever between Customer and Client, valid or invalid, at any time, both before and/or after the signing of this Agreement or the purchase of Account.
H. "Credit Problem" means a Customer is unable to pay his/her debts because of insolvency, or the Customer files a voluntary petition in bankruptcy, or the quitting of Customer's business and/or other like situations.
16. Indemnification. Client shall indemnify and hold Factor harmless against any an all liability, claim, demand, ill-will and damage arising from Factor's collecting or attempting to collect any Account, provided that Factor has complied with all applicable laws in its collection efforts, and/or from the failure of Client to pay taxes due and payable to any taxing authority, including all costs and reasonable attorneys' fees.
17. Miscellaneous.
A. Waivers. No action taken pursuant to this Agreement, including any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action or compliance with any representation, warranty, covenant or agreement contained herein or any documents delivered in connection herewith. No waiver by any party hereto of any right or remedy shall be effective unless in writing and signed by the party waiving said right or remedy. A waiver of a right, remedy or particular section or heading under this Agreement is not a waiver of rights or remedies of any other section(s) or heading(s) herein.
B. Notices. All notices, requests, demands and other communications which are required or may be given under this Agreement shall be in writing and shall be delivered by first class mail, postage and delivery confirmation prepaid, or by courier, transportation prepaid, to the party at the address herein contained or to such other address as such party shall have specified in writing by notice. Any and all such notices shall be deemed to have been received on the date of actual receipt.
C. Sections and Other Headings. The section numbers and other headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
D. Governing Law. This Agreement, and all transactions contemplated hereby, shall be governed by, construed and enforced, in accordance with the laws of the State of Florida. The parties hereto waive trial by jury and agree to submit to the personal jurisdiction and venue of a court of subject matter jurisdiction located in Broward County, State of Florida. In the event that litigation results from or arises out of this Agreement or the performance hereof, the parties to this Agreement agree to reimburse the prevailing party's reasonable attorney's fees, court costs, and other reasonable expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing party may be entitled. In such event, no action shall be entertained by said court or any court of competent jurisdiction if filed more than one year subsequent to the date the cause(s) of action actually occurred regardless of whether damages were, otherwise as of said time, calculable.
E. Effective Date. This Agreement shall become effective upon acceptance and execution hereof by Factor or Factor's authorized representative.
F. Reliance by Factor. All representations and warranties made by Client herein and in the Preliminary Evaluation Report are true and correct and Client acknowledges and understands that Factor has relied thereon in entering into this Agreement.
G. Term. The term of this Agreement is for a period of one (1) year (12 months) from date of execution by the parties hereto. At the conclusion of term, Factor retains the option to renew this Agreement for an additional 12 month period at the same terms and conditions as stated herein.
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25. ACKNOWLEDGMENT. Client acknowledges no knowledge of the existence of Local, State or Federal Tax Liens.
None _________________________________
Statement Cash Today USA, Inc.
President's Initials
26.ACKNOWLEDGMENT. Client acknowledges no knowledge of UCC Filings against current or future receivables.
None _________________________________
Statement Cash Today USA, Inc.
President's Initials
IN WITNESS WHEREOF, this Agreement has been executed by each of the individual parties hereto and signed by Factor and a duly authorized officer of Client, and attested under the corporate seal of the Secretary of the Corporation, all on the date and year set out below.
SIGNED AND DELIVERED IN THE PRESENCE OF:
Client/Seller:
Cash Today USA, Inc.
__________________________________ By: Signature_____________________________
Signature of Witness
__________________________________ Print Name: J.W. Long, President
Print Name of Witness
Date:_____________________________
Factor/Purchaser:
By:_______________________________
Signature
Print Name:_____________________________
Date:________________________________
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ADDENDUM
Addendum to ACCOUNTS RECEIVABLE PURCHASE AGREEMENT between
________________________________ Factor/Purchaser and Cash Today USA, Inc., Client/Seller.
Whereas,_________________________________________________________________________ Factor/Purchaser does hereby purchase
$ _______________of Accounts Receivable Purchase Checks from Cash Today USA, Inc., Client/Seller, which checks are written by Customers and made payable to Cash Today USA, Inc., for a total of dollars as of ___________________________________________, 2001 for a term of twelve (12) months, commencing this date.
Factor/Purchaser is required to give Client 90 day written notice of termination of this Agreement as such Notice is provided for herein. In the event of termination by Factor, 100% of all monies, including principal and fees thereon, are due and payable by Client to Factor by day 90 of said Notice of Termination.
Factorer Signature J. W. Long, President
Print Name_______________________ Cash Today USA. Inc.
5701 Margate Boulevard
Address _______________________ Margate, FL 33063
Home Phone ______________________
Work Phone ______________________
___________________________________
Social Security Number
___________________________________
Date Of Birth
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