Exhibit B: Security Agreement — Receivables Purchase and Security Agreement (No. 2:19-bk-00787 Doc 327-2)
What This Document Is
This is docket entry 327-2, Exhibit B to Azadian Group, LLC's Limited Objection to the Trustee's sale motion (docket entry 327), a 17-page DocuSign-executed "Merchant Receivables Purchase and Security Agreement" effective October 24, 2017 between Azadian Group LLC (the "Company") and TenX Group LLC (the "Merchant," doing business as "PTC" and "Panthera Worldwide").
Factual Summary
This is the second of two receivables-purchase financing agreements between Azadian Group LLC and TenX Group LLC, following the August 2017 agreement (docket entry 327-1). Under this October 24, 2017 agreement, TenX Group LLC sold, assigned, and transferred without recourse its right, title, and interest in a percentage of future receivables to Azadian in exchange for a Purchase Price of $150,000.00, with a Specified Amount (total repayable, including signing fees) of $198,050.00. Unlike the August agreement's daily-draw-rate structure, this agreement's payment schedule specifies $60,000.00 due on or before November 15, 2017, followed by 110 daily debits of $1,255.00 beginning November 16, 2017, with daily (banking-day) payment frequency. As with the first agreement, "Merchant" is defined jointly and severally to include TenX Group LLC's affiliated companies, guarantors, subsidiaries, successors, and assigns.
Key Facts
- Docket entry: 327-2 (Exhibit B to docket entry 327), filed April 20, 2021, 17 pages
- Agreement effective date: October 24, 2017, between Azadian Group LLC and TenX Group LLC
- Purchase Price: $150,000.00; Specified Amount (total repayable): $198,050.00
- Payment structure: $60,000.00 due November 15, 2017, then 110 daily debits of $1,255.00 beginning November 16, 2017
- Combined with the August 2017 agreement (docket entry 327-1), total Azadian financing to TenX Group LLC across both agreements: $487,500.00 in purchase price
Source Caveats
This summary covers the agreement's cover-page terms (parties, purchase price, payment structure); the full 17-page document contains additional standard receivables-purchase-agreement provisions (collateral description, default terms, remedies) not fully detailed here. Consult the source PDF directly for the complete agreement text.
- Date
- 2021-04-20
Cite this document
“Exhibit B: Security Agreement — Receivables Purchase and Security Agreement (No. 2:19-bk-00787 Doc 327-2).”
Original at ecf.wvnb.uscourts.gov, dated 2021-04-20. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2021-04-20-security-agreement-5c3e7370-1/
, SHA-256 5c3e7370b022914d753cfa7d8bb564316faa5ba6511e4004a49a835979461499.Full text
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EXHIBIT B
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Merchant Receivables Purchase and
Security Agreement
THIS RECEIVABLES PURCHASE AND SECURITY AGREEMENT
(the “Agreement”) is made effective as of:
October 24, 2017
BY AND BETWEEN:
AZADIAN GROUP LLC
(a Delaware limited liability company)
590 Madison Ave., 21st Fl., New York, NY 10022
- and -
TENX GROUP LLC
(a Delaware limited liability company also doing
business as “PTC” and “Panthera Worldwide”)
2506 Fish Pond Rd., Old Fields, WV 26845
and its affiliated companies, guarantors, subsidiaries,
successors and assigns
(jointly and severally, “Merchant”)
The Company and Merchant are jointly referred to herein
as the “Parties”.
WHEREAS, Merchant wishes to sell, assign and transfer, without recourse (except to the
extent provided herein), and Company wishes to purchase, for the purchase price set out
below (“Purchase Price”), Merchant’s entire right, title and interest in a percentage specified
herein of each of Merchant’s future receivables (“Future Receivables”) owed to Merchant
until the amount specified below, which amount includes fees due at signing as set forth in
Appendix A – Fee Schedule attached hereto (“Specified Amount”) has been paid to the
Company (“Purchased Receivables”) as specified below:
Purchase Price: $150,000.00
Specified Amount: $198,050.00
Payment Schedule: $60,000.00 due on or before November 15,
:2017, 110 daily debits of $1,255.00 beginning
November 16, 2017
Payment Frequency: : Daily, banking days only
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NOW THEREFORE, Company and Merchant agree as follows
1. Transaction
1.1 To the extent the Purchased Receivables or Future Receivables include credit
card, cash or other accounts receivable, the purchase and sale of the Purchased
Receivables pursuant hereto shall constitute a sale of accounts as such term is used in
Article 9 of the Uniform Commercial Code (“UCC”), which sales are absolute and
irrevocable, and provide the Company with the full benefits of ownership of Purchased
Receivables. Merchant has no right to repurchase or resell the Purchased Receivables.
1.2 To the extent the Purchased Receivables or Future Receivables include one or
more credit card receivables, Merchant represents and warrants that it has entered into a
merchant service agreement with Merchant’s Service Provider to obtain credit card
processing services (“Processor Agreement”), and hereby authorizes such credit card
processor(s) to pay the funds attributable to the Purchased Receivables directly to the
Company rather than to Merchant in the event of a default by Merchant under this
Agreement. Merchant also represents and warrants that Merchant maintains a depository
bank account (“Account”) with its bank into which Merchant deposits funds received from
Merchant’s Service Provider, and hereby authorizes Company to debit Merchant’s Account
for the daily draw rate or other charges relating to the Purchased Receivables.
1.3 In connection with the foregoing purchase and sale, Merchant hereby
irrevocably authorizes the Company to file one (1) or more financing or continuation
statements, or amendments thereto, without the signature of the Merchant where permitted
by law, as may be necessary or appropriate to perfect and maintain the perfection of the
Company’s ownership interest in the Purchased Receivables.
1.4 Merchant understands and acknowledges that this Agreement constitutes a
purchase of Merchant’s receivables and is not a loan agreement. Merchant further agrees
that neither this Agreement nor the transaction set forth in the Agreement is intended to be or
shall be deemed a loan or loan agreement. Merchant further agrees that Merchant will not
assert, in any lawsuit or other proceeding that this Agreement or the transaction set forth in
the Agreement is a loan, and Merchant agrees to indemnify and hold the Company harmless
from all expenses, damages, costs or fees resulting from any such assertion by Merchant.
1.5 Merchant acknowledges receipt of and agrees to the Fee Schedule included as
Appendix A to this Agreement, and specifically agrees that the fees due at signing shall be
due, payable and earned by the Company at signing as part of the consideration for the
transaction set forth herein. Merchant agrees to be liable for and pay all contingent fees set
forth in the Fee Schedule in the event the applicable contingency is met.
2. Security Interest
2.1 In the event that this Agreement does not constitute a valid sale, assignment,
transfer and conveyance of all right, title and interest of Merchant in the Purchased
Receivables, despite the intent of the Parties hereto, the Merchant hereby grants a “security
interest” (as defined in the UCC) in the Purchased Receivables and the Parties agree that
this Agreement shall constitute a security agreement under the UCC. Merchant hereby
irrevocably authorizes the Company to file one or more financing or continuation
statements, and amendments thereto, without the signature of Merchant where permitted by
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law.
3. Processing
3.1 Merchant authorizes the Company and/or its affiliates, agents, or servicers to
initiate electronic debit or credit entries through the ACH system to Merchant’s Account or
any other depository account maintained by Merchant wherever located to satisfy
Merchant’s obligations to convey a portion of the Purchased Receivables under this
Agreement. Merchant may only terminate this authorization by giving the Company thirty
(30) days advance written notice of termination. Company will collect the Purchased
Receivables and any other fees or charges associated therewith by ACH entries to
Merchant’s Account unless Company advises Merchant in writing that it is obtaining the
Purchased Receivables directly from Merchant’s credit card processor as set forth below.
3.2 Merchant also authorizes its credit card processor(s) to deposit the Purchased
Receivables directly into the Company’s account in accordance with this Agreement, as
designated by the Company. Such authorization shall be irrevocable, absolute and
unconditional. Merchant acknowledges and agrees that its credit card processor(s) may
provide the Company with certain of Merchant’s financial information as permitted by law
and the Processor Agreement. Merchant agrees that its credit card processor(s) may
charge and collect its processing fees and the Specified Percentage on a daily discounted
basis.
4. Due Diligence
4.1 Merchant authorizes the Company to conduct background, onsite and financial
examinations of Merchant, which may include, but is not limited to, address verifications for
up to ten (10) years; verification of the status of the licenses, permits, authorizations and/or
governmental filings of Merchant; verification of insurance coverage; verification of good
business practices through the appropriate agencies; and a search for bankruptcies, liens
or judgments in all jurisdictions where Merchant has conducted business.
4.2 Any onsite examination may include, but is not limited to, verification that
business is conducted as Merchant represents, at all sites where it conducts business.
Such examination shall be conducted upon reasonable prior notice to Merchant, and only
during reasonable business hours.
4.3 Any financial examination may include, but is not limited to, a review of
Merchant’s current financial statements, its most recent annual reports, tax returns for the
previous three (3) years, and all documentation supporting employee bonds and insurance
policies.
4.4 Merchant shall provide the Company with information sufficient to allow the
Company to obtain read or view only access to Merchant’s operational bank account during
the term of this Agreement for due diligence purposes and for ensuring Merchant’s
compliance with this Agreement. The Company agrees to access Merchant’s account only
for purposes of this Agreement, and the Company will not access the account after
Merchant’s obligations under this Agreement have been fulfilled.
4.4 If Merchant is not publicly held, Company, or its agents, may conduct
background and financial examinations of all principals owning ten percent (10%) or more of
Merchant. Such examinations may include, but are not limited to, a review of information
regarding criminal history for all jurisdictions where the principal has resided and been
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employed, address verification for all residences, and employment verification. The
examination may also include, but is not limited to, a review of the credit standing of the
principal, and a search for bankruptcies and judgments in all jurisdictions where the principal
has resided or been employed. The review may also include a review of up to three (3)
years of personal tax returns.
5. Indemnification
5.1 Merchant hereby indemnifies and holds harmless its credit card processor(s),
and their member banks, Merchant’s depository bank, Company’s ACH processing service
provider, and the Company, and its officers, managers, owners, affiliates, employees, agents
and representatives (each an “Indemnitee” and collectively the “Indemnitees”) from and
against any and all losses, damages, claims, liabilities and expenses, including, but not
limited to, attorney’s fees incurred by any of the Indemnitees arising from (i) actions taken in
reliance upon information or instructions provided to the Company and/or the credit card
processor(s) and their member banks by or on behalf of Merchant, or (ii) the occurrence of
termination of this Agreement. In no case will the Indemnitees be liable for any claims
asserted against them based on any theory of law or equity for lost profits, revenues, or
business opportunities; exemplary, special or consequential damages, each of which is
hereby expressly waived by Merchant. However, in the event that any Indemnitee shall be
found liable, damages shall not, under any circumstances, exceed the specified amount.
6. Modification
6.1 Merchant shall comply with all terms and provisions of this Agreement and the
Processor Agreement, and shall not modify or cancel either this Agreement or the
Processor Agreement at any time or in any manner.
7. Covenants
7.1 Merchant shall not conduct business under any other name than that disclosed
herein, and shall not change the location of the business or the state of formation without the
Company’s prior written consent. Merchant shall conduct its business in the ordinary course
and in substantially the same manner as heretofore conducted, and shall use commercially
reasonable efforts to not commit any act that results in a material reduction of its Future
Receivables, including, but not limited to, the refusal, for any reason, to accept bona fide
credit cards as payment for transactions. Merchant shall not close or divert assets away
from the Account, and Merchant shall continue to use the Account in the ordinary course of
Merchant’s business. Further, unless and until the Purchased Receivables have been paid
in full, Merchant and its owners shall not enter into any transaction involving the sale of
Merchant, either by an issuance, sale or transfer of ownership interests in Merchant that
results in a change in voting control of Merchant; by a sale or transfer of substantially all of
the assets of Merchant; or otherwise. The occurrence of any such event shall constitute a
breach of this Agreement.
7.2 If an entity, Merchant is a validly existing entity, in good standing under the laws
of the State of where it was incorporated or registered the person executing this Agreement
on behalf of Merchant has full power and complete authority to execute this Agreement on
behalf of Merchant, and this Agreement is valid, binding and enforceable against Merchant.
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7.3 There are no civil or criminal proceedings pending before any court, government
agency, arbitration panel, or administrative tribunal or, to Merchant’s knowledge, threatened
against Merchant, which may result in any materially adverse change in the business,
property or financial condition of Merchant.
7.4 Merchant is in compliance with any and all applicable federal, state and local
laws and regulations, and possesses and is in compliance with any and all permits,
authorizations and licenses to own, operate and lease its properties, and to conduct the
business in which it is presently engaged. Merchant possesses insurance in such amounts
and against such risks as is necessary to protect its business.
7.5 Merchant has filed or caused to be filed any and all federal, state, local and
foreign tax returns which are required to be filed, and has paid or caused to be paid any and
all taxes as shown on such returns or on any assessment received by Merchant to the
extent that such taxes have become due, and Merchant has no knowledge of any material
liability for any tax to be imposed on Merchant or any of its assets or properties for which
adequate provision has not been made in its financial statements.
7.6 Each Future Receivable, when created, shall be a legal, valid and binding
obligation of Merchant. No sale of a Purchased Receivable will constitute a fraudulent
transfer or a fraudulent conveyance, or will otherwise be void or voidable under similar laws
or principles, the doctrine of equitable subordination, laws regarding preferential transfers, or
for any other reason.
7.7 Merchant shall not, without the prior and express written consent of the
Company: (i) grant any extension of time for payment of any of the Purchased Receivables;
(ii) compromise, write-down, write off or otherwise settle any of the Purchased Receivables
for less than the full amount thereof; (iii) release any debtor or account associated with the
Purchased Receivables; or (iv) grant any credits, offsets, reductions, return authorizations
or the like with respect to any of the Purchased Receivables.
7.8 Merchant shall not sell, encumber, dispose of or create any lien on any asset of
Merchant that serves as security under this Agreement. Merchant agrees to maintain
insurance on all insurable property owned by Merchant that serves as security under this
Agreement in amounts and types acceptable to the Company and in line with common
practices in Merchant’s industry.
7.9 Merchant shall indemnify the Company for any loss arising out of any claim of
avoidance, including any claim in connection with applicable bankruptcy laws, from any
debtor associated with the Purchased Receivables.
7.10 Merchant shall not use any portion of the funds paid to Merchant under this
Agreement for any household personal, family or non-business use.
7.11 Any and all representations made in: Merchant’s application forms, this
Agreement; and any and all financial statements or other materials delivered to the
Company by Merchant in connection with this Agreement, are true, complete and correct,
and no material fact has been omitted.
7.12 No portion of Merchant’s Future Receivables, or any other assets pledged
pursuant to Section 9 hereof, is subject to any lien, security interest, assignment, option or
encumbrance, other than the security interest(s) granted to the Company, Merchant’s credit
card processor(s), and/or their member banks. There have been no material, adverse
changes in Merchant’s business, nor does Merchant have knowledge of any event that may
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occur in the future that could negatively impact Merchant’s business.
7.13 Merchant has provided the Company with a list of uses of the proceeds paid to
Merchant by the Company under this Agreement, which sets forth a true, accurate and
complete list of Merchant’s intended uses of the proceeds. Merchant has determined that it
is in Merchant’s best interest to sell the Purchased Receivables to obtain current funding for
the purposes described on the list of uses.
7.14 Each and all of the foregoing representations shall be deemed to be continuing
covenants of Merchant, and shall remain true and accurate at all times after the date of this
Agreement, until the Purchased Receivables have been paid in full.
8. Timing and Method of Funding
8.1 Merchant and the Company agree that the Company shall purchase the
Purchased Receivables on a date to be determined by the Company, at its sole discretion,
(the “Purchase Date”). Merchant and the Company also agree that the Company, at its sole
discretion, may refuse to purchase the Purchased Receivables for any or no reason.
Merchant and the Company further agree that the Company shall provide payment through
any commercially reasonable method, at the Company’s sole discretion, including, but not
limited to, check, federal funds wire, ACH transfer or obtaining the Purchased Receivables
directly from Merchant’s credit card processor.
9. Grant of Security Interest
9.1 To secure performance of Merchant’s obligations hereunder and the Company’s
interest in the Purchased Receivables, Merchant grants to the Company a continuing
security interest in the following, to the extent and in the amount of the Purchased
Receivables:
All assets of Debtor(s) including the following property that Debtor(s) now
own(s) or shall acquire or create immediately upon the acquisition or creation
thereof: (i) any and all amounts owing to Debtor(s) now or in the future from
any customers or any merchant processor(s) processing charges made by
customers of Debtor(s) via credit card or debit card transactions; and (ii) all
other tangible and intangible personal property, including but not limited to (a)
inventory, (b) equipment, (c) investment property, including certificated
uncertified securities, securities accounts, security entitlements, commodity
contracts, and commodity accounts, (d) instruments, including promissory
notes, (e) chattel paper, including tangible chattel paper and electronic chattel
paper, (f) documents, (g) letter of credit rights, (h) accounts, including health
care insurance receivables, (i) deposit accounts, (j) commercial tort claims, (k)
general intangibles, including payment intangibles and software, (l) all
accounts receivable, and (m) as-extracted collateral as such terms may from
time to time be defined in the Uniform Commercial Code. The Security
Interest Debtor(s) grant(s) includes all accessions, attachments, accessories,
parts, supplies, and replacements for the collateral, all products, proceeds,
and collections thereof and all records and data relating thereto.
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The Company shall have all rights and be entitled to all benefits afforded to a secured
creditor under the UCC, or otherwise at law. Merchant hereby authorizes the Company to
file and/or record such further instruments, agreements or undertakings, and such
certificates of title, financing and continuation statements, and other instruments, as the
Secured Party may deem necessary or desirable to perfect, protect and preserve the
security interests hereby granted in the Collateral. Nothing contained in this Section 9 shall
be construed to change the Parties’ intent under this Agreement to effect a final sale of the
Purchased Receivables, as opposed to a secured loan or any other type of credit
transaction.
10. Termination
10.1 This Agreement shall be terminated in the event of any of the following:
(a) Merchant breaches any term or provision of the Processor Agreement
and/or this Agreement;
(b) Merchant changes its current credit card processor(s) and or Account
information without proper advance notice to the Company
(c) Merchant permits any event to occur that could cause a diversion of any
Future Receivables;
(d) Merchant is found to have made a materially false or incorrect
representation, warranty or statement;
(e) the Company shall fail to have valid and unencumbered ownership in and to
the Purchased Receivables; or
(f) there is any materially adverse change in Merchant’s operation, or any other
event which materially affects Merchant’s ability to perform its obligations
hereunder
10.2 In the event of termination of this Agreement, the Company shall have, in
addition to all other rights and remedies under this Agreement or otherwise, all other
rights and remedies provided by the UCC.
10.3 In addition, and to the extent consistent with both the Processor Agreement and
any other then applicable terms or provisions entered into with the credit card
processor(s) and their member banks, the Company shall, upon termination, have the
right to (i) instruct any credit card processor of Merchant to collect, without prior notice
to Merchant, the entire uncollected balance of the Specified Amount from any and all of
Merchant’s Future Receivables, and/or (ii) unilaterally change, or cause Merchant’s
credit card processor(s) unilaterally to change, Merchant’s discount rates and fees.
10.4 In addition, the Company shall, upon Merchant’s default and/or termination, have
the right to debit or cause to be debited from any of Merchant’s depository and/or
operating bank accounts, without prior notice to Merchant, the entire uncollected
balance of the Specified Amount from any and all of Merchant’s Future Receivables.
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11. Waiver
11.1 The Company’s failure to exercise any right under this Agreement does not
constitute a waiver on the Company’s part to exercise such rights at a later time. Nor shall
any singular or partial exercise of any right under this Agreement preclude the Company
from any other future exercise of any right.
11.2 The remedies provided hereunder are cumulative and not exclusive of any
remedies provided by law or equity.
12. Binding Effect; Assignment
12.1 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 or obligations or any interest in this Agreement without the
prior written consent of the Company, which consent may be withheld in the Company’s
sole discretion. Any unauthorized assignment by Merchant shall be null and void. The
Company may without the consent of Merchant and upon notice to Merchant, sell and
assign all or any portion of all of the rights and obligations or duties of Merchant under this
Agreement (an “Assignment”). From and after the effective date of any Assignment, this
Agreement shall be deemed amended and modified (without the need for any further action
on the part of either party) such that the assignee shall be deemed a party to this Agreement
and, to the extent provided in the Assignment, have the rights and obligations of the
Company under this Agreement associated with the Assignment, including but not limited to
rights to the Company’s receipt of security to secure Merchant’s performance under this
Agreement, rights to receive a guarantee from Merchant regarding the full and prompt
performance of every Future Receivable under this Agreement and the Company’s right to
declare a default or an event of default under this Agreement and to receive damages from
Merchant following a breach of the Agreement by Merchant. Notwithstanding the foregoing,
unless otherwise notified in writing by any such assignee, Merchant shall not be required to
take any action for the direct benefit of an assignee following such Assignment and its
obligations under this Agreement shall not be altered thereby. In connection with such
assignment, the Company may disclose all information that it has relating to Merchant or its
business.
13. Costs and Expenses
13.1 The Company shall be entitled to recover from Merchant any and all reasonable
costs and attorney’s fees associated with and/or resulting from the enforcement of its rights
and remedies hereunder or at law. Any payments under an indemnity claim, pursuant to
Section 5 herein, shall include all foregoing costs and expenses, as well as interest thereon
at a rate of ten percent (10%) per month from the date the obligation is due to the
Indemnified Party until the indemnity claim shall be paid.
14. Survival and Further Assurances
14.1 All representations, warranties and covenants herein shall survive the execution
and delivery of this Agreement, and shall continue in full force and effect until such time as
all obligations under this Agreement have been satisfied.
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14.2 Merchant agrees, from time to time, upon the Company’s request, to make,
execute, acknowledge, and deliver to the Company such further and additional instruments,
documents, and agreements, and to take such further action as may be required to carry
out the intent and purpose of this Agreement.
15. Jury Trial
15.1 The Parties hereby waive trial by jury in any court presiding over any suit, action
or proceeding arising under this Agreement, unless such waiver is prohibited by law. The
Parties acknowledge that this waiver is made knowingly and voluntarily. The Parties have
been given ample time and opportunity to seek advice of counsel prior to the execution of
this Agreement.
16. Counterparts and Reproductions
16.1 This Agreement may be executed in counterparts, each of which shall be
deemed to be an original and all of which together shall constitute one instrument. This
Agreement may be executed by electronic signature. Facsimile, email or other electronic
copies of signatures to this Agreement shall be deemed to be originals, and the Parties may
rely upon such copies to the same extent as the originals.
17. Entire Agreement
17.1 This Agreement may not be modified without the Company’s express written
consent and any such modification must be in writing and signed by Company.
18. Severability
18.1 Should any term or provision of this Agreement be deemed invalid, illegal or
unenforceable, then such invalid, illegal or unenforceable term or provision shall be null and
void, and all other terms and provisions of this Agreement shall continue in full force and
effect as though such invalid, illegal or unenforceable term or provision had never been a
part hereof.
19. Governing Law, Jurisdiction
19.1 This Agreement and all prior agreements between the Parties shall be
governed by and construed in accordance with the laws of the State of Delaware, without
regard to any conflict of laws provisions. All legal action filed as a result of this Agreement
and all prior agreements between the Parties shall be filed in the federal or state courts
within the State of Delaware and the Parties submit themselves to the exclusive personal
jurisdiction of such courts for any such actions.
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20. Ratification
20.1 This Agreement shall not constitute a contract until fully executed by all Parties
hereto.
20.2 Each person signing this Agreement represents and warrants that he or she
is duly authorized and has legal capacity to execute and deliver this Agreement. Each
party represents and warrants to the other that the execution and delivery of the
Agreement and the performance of such party’s obligations hereunder have been duly
authorized and that the Agreement is a valid and legal agreement binding on such party
and enforceable in accordance with its terms.
21. Additional Agreements
21.1 Purchase price equals $150,000.00, less origination fee of $1,500 processing
fees listed in Appendix A, equals $148,500.00 advanced to Merchant
21.2 EARLY PAYMENT DISCOUNT
Merchant may repay the outstanding balance of the Specified Amount at any at a
discounted payoff of 85% of the total outstanding balance of the Specified Amount at the
time of payoff.
21.3 PERSONAL GUARANTEE
Personal Guarantee of Contractual Terms
IN CONSIDERATION OF COMPANY ENTERING INTO THIS AGREEMENT, AND TO
INDUCE COMPANY TO ENTER INTO THIS AGREEMENT, THE UNDERSIGNED
PRINCIPAL(S) OF MERCHANT (“GUARANTOR(S)”) HEREBY PERSONALLY
GUARANTEE TO COMPANY THAT: (A) GUARANTORS ABSOLUTELY AND
UNCONDITIONALLY GUARANTEE THE FULL AND PUNCTUAL PAYMENT TO THE
COMPANY OF ALL SUMS WHICH MAY BE PRESENTLY DUE AND OWING AND FOR
ALL SUMS WHICH SHALL IN THE FUTURE BECOME DUE AND OWING TO THE
COMPANY FROM MERCHANT, WHETHER DIRECT OR IN DIRECT, WHETHER AS A
BORROWER, GUARANTOR, SURETY OR OTHERWISE, INCLUDING, WITHOUT
LIMITATION, INTEREST, ATTORNEYS’ FEES AND OTHER AMOUNTS ACCRUING
AFTER THE FILING OF A PETITION IN BANKRUPTCY BY OR AGAINST MERCHANT,
NOTWITHSTANDING THE DISCHARGE OF MERCHANT FROM SUCH OBLIGATIONS,
TOGETHER WITH ALL COSTS AND EXPENSES INCURRED BY COMPANY IN
CONNECTION WITH SUCH OBLIGATIONS, THIS GUARANTY AND THE
ENFORCEMENT THEREOF; (B) ALL INFORMATION PROVIDED BY MERCHANT TO
COMPANY IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS
AGREEMENT IS TRUE, CORRECT AND COMPLETE; (C) MERCHANT SHALL NOT
OBTAIN ADDITIONAL CASH ADVANCE OR ACCOUNTS RECEIVABLE-BASED
FUNDING/FINANCING PRIOR TO THE TIME THAT COMPANY HAS RECEIVED THE
ENTIRE PURCHASED AMOUNT; AND (D) MERCHANT SHALL NOT BREACH, OR DO
ANY OF THE ACTS PROHIBITED BY THIS AGREEMENT. THIS GUARANTEE
(“GUARANTEE”) SHALL BE THE CONTINUING, IRREVOCABLE, UNCONDITIONAL AND
JOINT AND SEVERAL OBLIGATIONS OF THE GUARANTOR(S), AND THE
GUARANTOR(S) HEREBY WAIVE DEMAND OF PAYMENT, NOTICE OF
PRESENTMENT, AND ANY AND ALL REQUIREMENTS OF NOTICE, DEFENSES,
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OFFSETS AND COUNTERCLAIMS AND ANY OTHER ACT OR OMISSION OF
COMPANY WHICH CHANGES THE SCOPE OF THE GUARANTOR(S)’ RISK, AND
GUARANTOR(S) FURTHER AGREE THAT COMPANY MAY PROCEED DIRECTLY
AGAINST THE GUARANTOR(S) WITHOUT FIRST PROCEEDING AGAINST MERCHANT.
BY SIGNING BELOW GUARANTOR(S) AGREE TO THIS GUARANTEE AND EACH
REPRESENTATION, WARRANTY AND COVENANT SET FORTH IN THIS AGREEMENT,
WHICH REPRESENTATIONS, WARRANTIES AND COVENANTS SHALL SURVIVE THE
EXECUTION AND DELIVERY OR TERMINATION OF THIS AGREEMENT AS PROVIDED
HEREIN. THE GUARANTOR(S) SPECIFICALLY CONSENT AND AGREE TO BE BOUND
BY THE TERMS AND CONDITIONS OF THIS AGREEMENT WHICH ARE APPLICABLE
TO GUARANTOR(S).
21.4 CROSS CORPORATE GUARANTEE
Personal Guarantee of Contractual Terms
IN CONSIDERATION OF COMPANY ENTERING INTO THIS AGREEMENT, AND TO
INDUCE COMPANY TO ENTER INTO THIS AGREEMENT, THE UNDERSIGNED
ENTITIES AFFILIATED WITH MERCHANT (“CORPORATE GUARANTOR(S)”) HEREBY
GUARANTEE TO COMPANY THAT: (A) ALL INFORMATION PROVIDED BY MERCHANT
TO COMPANY IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS
AGREEMENT IS TRUE, CORRECT AND COMPLETE; (B) MERCHANT SHALL NOT
OBTAIN ADDITIONAL CASH ADVANCE OR ACCOUNTS RECEIVABLE-BASED
FUNDING/FINANCING PRIOR TO THE TIME THAT COMPANY HAS RECEIVED THE
ENTIRE SPECIFIED AMOUNT; AND (C) MERCHANT SHALL NOT BREACH, OR DO ANY
OF THE ACTS PROHIBITED BY THIS AGREEMENT. THIS GUARANTEE
(“GUARANTEE”) SHALL BE THE CONTINUING, IRREVOCABLE, UNCONDITIONAL AND
JOINT AND SEVERAL OBLIGATIONS OF THE CORPORATE GUARANTOR(S), AND
THE CORPORATE GUARANTOR(S) HEREBY WAIVE DEMAND OF PAYMENT, NOTICE
OF PRESENTMENT, AND ANY AND ALL REQUIREMENTS OF NOTICE, DEFENSES,
OFFSETS AND COUNTERCLAIMS AND ANY OTHER ACT OR OMISSION OF
COMPANY WHICH CHANGES THE SCOPE OF THE CORPORATE GUARANTOR(S)’
RISK, AND CORPORATE GUARANTOR(S) FURTHER AGREE THAT COMPANY MAY
PROCEED DIRECTLY AGAINST THE CORPORATE GUARANTOR(S) WITHOUT FIRST
PROCEEDING AGAINST MERCHANT. CORPORATE GUARANTOR(S) FURTHER
GUARANTEE THE PAYMENT OF AND AGREES TO PAY ALL AMOUNTS DUE TO
COMPANY UNDER THIS AGREEMENT. BY SIGNING BELOW CORPORATE
GUARANTOR(S) AGREE TO THIS GUARANTEE AND EACH REPRESENTATION,
WARRANTY AND COVENANT SET FORTH IN THIS AGREEMENT, WHICH
REPRESENTATIONS, WARRANTIES AND COVENANTS SHALL SURVIVE THE
EXECUTION AND DELIVERY OR TERMINATION OF THIS AGREEMENT AS PROVIDED
HEREIN. THE CORPORATE GUARANTOR(S) SPECIFICALLY CONSENT AND AGREE
TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT WHICH ARE
APPLICABLE TO CORPORATE GUARANTOR(S).
21.5 CONFESSION OF JUDGMENT
UPON THE OCCURRENCE OF AN EVENT OF DEFAULT HEREUNDER, MERCHANT,
GUARANTOR(S), AND CORPORATE GUARANTOR(S) HEREBY AUTHORIZE AND
EMPOWER COMPANY, THROUGH ITS ATTORNEY OR THROUGH THE
PROTHONOTARY OR CLERK OF ANY COURT OF RECORD, TO APPEAR FOR
MERCHANT, GUARANTOR(S) AND CORPORATE GUARANTOR(S), WITH OR
WITHOUT COMPLAINT FILED, TO CONFESS AND ENTER JUDGMENT, OR A SERIES
OF JUDGMENTS, AGAINST MERCHANT, GUARANTOR(S) AND CORPORATE
GUARANTOR(S) IN FAVOR OF COMPANY (AND/OR ITS SUCCESSORS OR ASSIGNS),
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FOR THE UNPAID BALANCE OF THE SPECIFIED AMOUNT (AS DEFINED IN THIS
AGREEMENT) AND ALL OTHER SUMS PAID BY COMPANY TO OR ON BEHALF OF
MERCHANT PURSUANT TO THE TERMS OF ANY AND ALL AGREEMENTS BETWEEN
COMPANY AND MERCHANT, TOGETHER WITH ALL COSTS OF SUIT AND
REASONABLE ATTORNEYS’ FEES FOR COLLECTION OF THE INDEBTEDNESS, ON
WHICH JUDGMENT OR JUDGMENTS, ONE OR MORE EXECUTIONS MAY ISSUE
FORTHWITH. MERCHANT AND GUARANTOR(S) HEREBY FOREVER WAIVE STAY OF
EXECUTION, THE RIGHT OF INQUISITION AND EXTENSION OF TIME OF PAYMENT,
AGREES TO CONDEMNATION OF ANY PROPERTY LEVIED UPON BY VIRTUE OF ANY
SUCH EXECUTION, AND WAIVE ALL EXEMPTIONS FROM LEVY AND SALE OF
PROPERTY THAT IS NOW OR HEREINAFTER MAY BE EXEMPTED BY LAW. THIS
PARAGRAPH SHALL BE DEEMED A SUFFICIENT WARRANT OF ATTORNEY FOR ALL
ACTION AUTHORIZED HEREIN.
[SIGNATURE PAGE TO FOLLOW]
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SIGNATURE PAGE
AGREED TO AND ACCEPTED BY:
“COMPANY”
AZADIAN GROUP LLC
By: _______________________________
Name: Raffi Azadian
Title: Managing Member
Date: 10/24/2017
“MERCHANT”
TENX GROUP LLC
By: _______________________________
Name: James V. Punelli
Title: Managing Member
Date: 10/24/2017
By: _______________________________
Name: Raymond C. Jones
Title: Managing Member
Date: 10/24/2017
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GUARANTORS:
_______________________________
James V. Punelli
Date: 10/24/2017
_______________________________
Raymond C. Jones
Date: 10/24/2017
CORPORATE GUARANTOR(S):
PANTHERA TRAINING CENTER LLC
By: _______________________________
Name: James V. Punelli
Title: Managing Member
Date: 10/24/2017
By: _______________________________
Name: Raymond C. Jones
Title: Managing Member
Date: 10/24/2017
BLUE FORCE TECHNOLOGIES INC.
By: _______________________________
Name: James V. Punelli
Title: Corporate Officer
Date: 10/24/2017
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Appendix A – Fee Schedule
1. Processing Fee: $1,500.00
2. ACH Program Fee: WAIVED
3. NSF Fee: $75.00 for each occurrence – up to FOUR TIMES ONLY before a
default is declared.
4. Rejected ACH Fee: $100.00 for each occurrence – If a merchant directs the bank
to reject our debit ACH.
5. ACH Forbearance Fee: $35.00 for each debit held or skipped at Merchant prior
request.
6. Bank Change Fee: $100.00 – if a merchant requires a change of account to be
debited requiring us to adjust our system.
7. Blocked Account Fee: 10% of the outstanding balance per occurrence – If a
merchant blocks Company’s ACH debit of the account, bounces more than 4
debits of the account or simultaneously uses multiple bank accounts or credit card
processors to process its receipts.
8. Default Fee: 10% of the outstanding balance per occurrence – If a merchant
changes bank accounts without Company’s consent or commits another default
pursuant to the Agreement.
9. Miscellaneous Service Fees: Merchant shall pay certain fees for services
related to the origination and maintenance of accounts. Each merchant shall
receive their funding electronically to their designated bank account and will be
charged $30.00 for a Fed wire. The current charge for the underwriting, UCC
search/filing/monitoring, ACH program and origination of each merchant will be
paid from the funded amount.
10. Risk Assessment Fee: WAIVED
11. UCC Fee: WAIVED
AGREED TO AND ACCEPTED BY:
TENX GROUP LLC
By: _______________________________
Name: James V. Punelli
Title: Managing Member
Date: 10/24/2017
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By: _______________________________
Name: Raymond C. Jones
Title: Managing Member
Date: 10/24/2017
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