Attached files
Exhibit 10.30
BUSINESS
FUNDING PAYMENT RIGHTS PURCHASE AND SALE AGREEMENT This Payment
Rights Purchase and Sale Agreement ("Agreement") dated 02/14/2019.
is made by and between EBF Partners, LLC d/b/a Everest Business
Funding ("Purchaser") and the business identified below ("Seller").
SELLER'S IN FORMATION
OFFER
TO SELL AND PURCHASE PAYMENT RIGHTS
Seller
hereby sells, assigns and transfers to Purchaser, without recourse,
upon payment of the Purchase Price, the Purchased Amount of Future
Receipts by delivering to Purchaser the Specified Percentage of the
proceeds of each future sale by Seller. "Future Receipts" includes
all payments made by cash, check, ACH or other electronic transfer,
credit card, debit card, bank card, charge card (each such card
shall be referred to herein as a "Credit Card") or other form of
monetary payment in the ordinary course of Seller's business. BASED
UPON SELLER'S CALCULATIONS AND EXPERIENCE IN OPERATING ITS
BUSINESS, SELLER IS CONFIDENT THAT THE PURCHASE PRICE PAID BY
PURCHASER IN EXCHANGE FOR THE PURCHASED AMOUNT OF FUTURE RECEIPTS
WILL BE USED IN A MANNER THAT WILL BENEFIT SELLER'S CURRENT AND
FUTURE BUSINESS OPERATIONS.
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Legal
Business Name
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GUIDED
THERAPEUTICS, INC
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D/B/A
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Type
of Business Entity
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Corp.
I Limited Liability Company
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Partnership
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Limited
Partnership
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Limited
Liability Partnership
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Sole
Proprietorship
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Other
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Physical
Address
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5835
Peachtree Corners E Ste B
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City
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Norcross
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GA
!ZiP
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30092
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Mailing
Address
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5835
Peachtree Corners E Ste B
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City
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Norcross
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GA
/ZiP
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30092
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Contact
Name
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JOHN
EDWIN IMHOFF
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Position
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Business
Phone
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770-242-8723
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Cell
Phone
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Email
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Website
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Date
Business Started
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10/1992
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Federal
Tax Id
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58-2029543
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Monthly
Avg Sales
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$71,926.22
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Annual
Sales
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$863,114.68
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Purchase
Price I$50,000.00 I Purch Amt I$68,500.00 IDaily Payment
1$535.16
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Specified %
Percentage
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OFFER
TO SELL AND PURCHASE PAYMENT RIGHTS
Seller
hereby sells, assigns and transfers to Purchaser, without recourse,
upon payment of the Purchase Price, the Purchased Amount of Future
Receipts by delivering to Purchaser the Specified Percentage of the
proceeds of each future sale by Seller.
"Future
Receipts" includes all payments made by cash, check, ACH or other
electronic transfer, credit card, debit card, bank card, charge
card (each such card shall be referred to herein as a "Credit
Card") or other form of monetary payment in the ordinary course of
Seller's business. BASED UPON SELLER'S CALCULATIONS AND EXPERIENCE
IN OPERATING ITS BUSINESS, SELLER IS CONFIDENT THAT THE PURCHASE
PRICE PAID BY PURCHASER IN EXCHANGE FOR THE PURCHASED AMOUNT OF
FUTURE RECEIPTS WILL BE USED IN A MANNER THAT WILL BENEFIT SELLER'S
CURRENT AND FUTURE BUSINESS OPERATIONS.
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Daily Payment =(Monthly Average Sales X Specified Percentage) /
Average Weekdays in a Calendar Month
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Seller's
Business Name
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GUIDED
THERAPEUTICS, INC
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Seller's
D/B/A
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Physical
Address
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5835
Peachtree Corners E Ste B
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City
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Norcross
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State
/GA
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IZip
130092
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Federal
Tax Id
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58-2029543
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1
Seller
shall (1) deposit all Future Receipts into only one bank account,
which must be acceptable to and pre-approved by Purchaser (the
"Account") and (2) instruct Seller's Credit Card processor, which
processor must be acceptable to and pre-approved by Purchaser (the
"Processor") who shall serve as Seller's sole Credit Card
processor, to deposit all Credit Card receipts of Seller into the
Account. Purchaser will debit the Daily Payment from the Account
each Weekday (Monday -Friday). Seller authorizes Purchaser to
initiate electronic checks or ACH debits from the Account equal to
the Daily Payment each
business day and will provide Purchaser with all required
access codes. Seller understands that it is responsible for
ensuring that the Daily Payment is available in the Account and
will be responsible for any fees incurred by Purchaser resulting
from a rejected electronic check or ACH debit attempt. Purchaser is
not responsible for any overdrafts or rejected transactions that
may result from Purchaser's debiting any amount authorized under
the terms of this Agreement.
Purchaser
Acknowledgement. There is no interest rate or payment schedule and
no time period during which the Purchased Amount must be collected
by Purchaser. Seller going bankrupt or going out of business, in
and of itself, does not constitute a breach of this Agreement.
Purchaser is entering into this Agreement knowing the risks that
Seller's business may slow down or fail, and Purchaser assumes
these risks based on Seller's representations warranties and
covenants in this Agreement, which are designed to give Purchaser a
reasonable and fair opportunity to receive the benefit of its
bargain.
Seller's Right to
Request a Reconciliation. The Daily Payment amount is intended to
represent the Specified Percentage of Seller's Future Receipts.
Seller may request that Purchaser reconcile Seller's actual
receipts by either crediting or debiting the difference back to or
from the Account so that the amount Purchaser debited in the most
recent calendar month equaled the Specified Percentage of Future
Receipts that Seller collected in that calendar month. Any
reconciliation request must be: (1) in writing; (2) include a copy
of Seller's bank statement for the calendar month at issue; and (3)
be sent to Everest Business Funding at 5 West 37th Street, Suite
1100, New York NY 10018 within 30 days after the last day of the
calendar month at issue. It is solely the Seller's responsibility
to send a complete bank statement. Failure to send a written
reconciliation request within 30 days after the last day of the
calendar month at issue forfeits that month's reconciliation.
Notwithstanding anything to the contrary in this Agreement or any
other agreement between Purchaser and Seller, upon the occurrence
of an Event of Default, the Specified Percentage shall equal 100%.
A list of all fees applicable under this Agreement is contained in
Appendix A.
THE
"PAYMENT RIGHTS PURCHASE AND SALE AGREEMENT TERMS AND CONDITIONS"
AND THE "PERFORMANCE GUARANTY" ARE All HEREBY INCORPORATED IN AND
MADE A PART OF THIS PAYMENT RIGHTS PURCHASE AND SALE
AGREEMENT.
For
the Seller #1
/s/
John E. Imhoff
John
E. Imhoff
Director
of Guided Therapeutics, Inc
For
the Owner/ Guarantor #1
/s/
John E. Imhoff
John
E. Imhoff
Director
of Guided Therapeutics, Inc
Seller
or any of its Owners for the purpose of this Agreement, and (ii)
obtain credit reports, including consumer credit reports at any
time now or for so long as Seller and/or Owners(s) continue to have
any obligation owed to Purchaser as a consequence of this Agreement
or for Purchaser’s ability to determine Seller's eligibility
ty to enter into any future agreement with Purchaser.
ANY
MISREPRESENTATION MADE BY SELLER OR OWNER IN CONNECTION WITH THIS
AGREEMENT MAY CONSTITUTE A SEPARATE CAUSE OF ACTION FOR FRAUD,
INTENTIONAL MISREPRESENTATION AND/OR UNJUST ENRICHMENT IN WHICH
EVENT PURCHASER WILL BE ENTITLED TO THE RECOVERY OF NOT ONLY ITS
LOSSES BUT ALSO ALL OF ITS COSTS AND EXPENSES AND ITS REASONABLE
LEGAL FEES.
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PAYMENT
RIGHTS PURCHASE AND SALE AGREEMENT TERMS AN D
CONDITIONS
I.
TERMS OF ENROLLMENT IN PROGRAM
II
(a) ACH
Authorization. Seller shall execute an agreement (the "ACH
Authorization") acceptable to Purchaser to authorize the use of the
Automated Clearinghouse System (ACH) to retrieve the Daily Payment
from the Account. Seller shall provide Purchaser and/or its
authorized agent(s) with all of the information, authorizations and
passwords necessary for verifying Seller's receivables, receipts,
deposits and withdrawals into and from the Account. Seller hereby
authorizes Purchaser and/or its agent(s) to deduct from the Account
the Purchased Amount and any other amounts owed by Seller to
Purchaser as specified herein and to pay such amounts to Purchaser.
If an ACH transaction is rejected by Seller's financial institution
for any reason other than a stop payment order placed by Seller
with its financial institution, including without limitation
insufficient funds, Seller agrees that Purchaser may resubmit any
ACH transaction that is dishonored as permitted under the NACHA
rules. In the event Purchaser makes an error in processing any
payment or credit, Seller authorizes Purchaser to initiate ACH
entries to or from the Account to correct the error. These
authorizations apply not only to the approved Account but also to
any subsequent or alternate account used by the Seller for these
deposits, whether preapproved by Purchaser or not. This additional
authorization is not a waiver of Purchaser's right to declare
Seller in default if Seller uses an account that Purchaser did not
first preapprove in writing. This authorization shall be
irrevocable without the prior written consent of
Purchaser.
(b)
Bank Holidays and Other Exceptions. Purchaser will debit the Daily
Payment each Weekday on which the Bank is open and able to process
ACH transactions. On the Weekday immediately following any Weekday
or Weekdays on which the Bank was not open to process ACH
transactions, Purchaser will debit the designated account for an
amount equal to the sum of: (i) the Daily Payment amount due on
that Weekday, plus (ii) the Daily Payment amount due on the
preceding Weekday when the Bank was not open or could not process
ACH transactions.
1.2
Financial
Condition. Seller and Guarantor(s) authorize Purchaser and its
agents to investigate their financial responsibility and history,
and will provide to Purchaser any authorizations, bank or financial
statements, tax returns, etc., as Purchaser deems necessary in its
sole discretion prior to or at any time after execution of this
Agreement. A photocopy of this authorization will be deemed
acceptable as an authorization for release of financial and credit
information. Purchaser is authorized to update such information and
financial and credit profiles from time to time as it deems
appropriate.
1.3
Transactional
History. Seller authorizes all of its banks and brokers and Credit
Card processors to provide Purchaser with Seller's banking,
brokerage and/or processing history to determine qualification or
continuation in this program.
1.4
Indemnification.
Seller and Guarantor(s) jointly and severally indemnify and hold
harmless Processor, its officers, directors and shareholders
against all losses, damages, claims, liabilities and expenses
(including reasonable attorney's fees) incurred by Processor
resulting from (a) claims asserted by Purchaser for monies owed to
Purchaser from Seller and (b) actions taken by Processor in
reliance upon any fraudulent, misleading or deceptive information
or instructions provided by Purchaser.
1.5
No Liability. In no
event will Purchaser be liable for any claims asserted by Seller or
Guarantor(s) under any legal theory for lost profits, lost
revenues, lost business opportunities, exemplary, punitive,
special, incidental, indirect or consequential damages, each of
which is waived by both Seller and Guarantor(s). I n the event
these claims are nonetheless raised, Seller and Guarantor(s) will
be jointly liable for all of Purchaser's legal fees and expenses
resulting therefrom. Seller and each Owner and each Guarantor
hereby and each waives to the maxi mum extent permitted by I aw any
cl aim for da mages against Purchaser or any of its affiliates
relating to any (i)investigation undertaken by or on behalf of
Purchaser as permitted by this Agreement or (ii) disclosure of
information as permitted by this Agreement.
1.6.
Reliance on Terms.
Sections 1.1, l.3, 1.4, 1.6 and l.8 of this Agreement are agreed to
for the benefit of Seller, Purchaser and Processor, and
notwithstanding the fact that Processor is not a party of this
Agreement, Processor may rely upon their terms and raise them as a
defense in any action.
Accounting Records.
and Place of Business. Purchaser or its designated representatives
and agents shall have the right during Seller's normal business
hours and at any other reasonable time to examine the interior and
exterior of any of Seller's places of business. Purchaser may
examine, among other things, whether Seller) has a place of
business that is separate from any personal residence, (b) is open
for business, and (c) has sufficient inventory to conduct Seller's
business. When performing an examination, Purchaser may photograph
the interior and exterior of any of Seller's places of business,
including any signage, and may photograph any Owner. Purchaser or
any of its agents shall have the right to inspect, audit, check,
and make extracts from any copies of the books, records, journals,
orders, receipts, correspondence that relate to Seller's accounts
or other transactions between the parties thereto and the general
financial condition of Seller and Purchaser may remove any of such
records temporarily for the purpose of having copies made thereof.
Purchaser shall have the right to hire a Certified Public
Accountant, licensed in the state where the business is located to
perform analysis of the accounting records for the purpose of
determining if the Specified Percentage of receipts has been made
available for remittance to Purchaser. Seller hereby agrees to
fully cooperate with such analysis upon the request of
Purchaser.
1.8 Power of Attorney. Seller
irrevocably appoints Purchaser 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 Seller from any bank or
Processor, or in the case of an occurrence of an Event of Default
under Section 3 hereof, to Purchaser under this Agreement,
including without limitation (i) to obtain and adjust
insurance; (ii) to collect monies due or to become due under or in
respect of any of the Purchased Amount; (iii) to receive, endorse
and collect any checks, notes, drafts, instruments, documents or
chattel paper in connection with clause 0) or clause (ii) above;
(iii) to sign Seller's name on any invoice, bill of lading, or
assignment directing customers or account debtors to make payment
directly to Purchaser; (iv) to file any claims or take any action
or institute any proceeding that Purchaser may deem necessary for
the collection of any of the unpaid Purchased Amount, or otherwise
to enforce its rights with respect to payment of the Purchased
Amount. I n connection therewith, all costs, expenses and fees,
including legal fees, shall be payable by and from Seller and
Purchaser is authorized to use Seller's funds to pay for same; and
(v) Purchaser shall have the right, without waiving any of its
rights and remedies and without notice to Seller or any
Owner/Guarantor, to notify any Credit Card processor of the sale of
Future Receipts and re-direct the remittance of da i I y
settlements to a n account of Purchaser 's choosing in order to
settle all obligations due to Purchaser under this
Agreement.
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1.,9.
Confidentiality.
Seller understands and agrees that the terms and conditions of the
products and services offered by Purchaser, including this
Agreement and any other Purchaser documentations (collectively,
"ConfidentiaI Information") are proprietary and confidential
information of Purchaser. Accordingly, unless disclosure is
required by law or court order, Seller shall not disclose
Confidential Information of Purchaser to any person other than an
attorney, accountant, financial advisor or employee of Seller who
needs to know such information for the purpose of advising Seller
("Advisor"), provided such Advisor uses Confidential Information
solely for the purpose of advising Seller and first agrees in
writing to be bound by the terms of this section. A breach hereof
entitles Purchaser to not only damages and legal fees but also to
both a temporary restraining order and a preliminary injunction
without bond or security.
1.10
Publicity. Seller
and each of Seller's Owners and all Guarantors hereby authorize
Purchaser to use its, his or her name in listings of clients and in
advertising and marketing materials.
1.11
D/S/As.
Seller hereby acknowledges and agrees that Purchaser may be using
"doing business as" or "d/b/a" names in connection with various
matters relating to the transaction between Purchaser and Seller,
including the filing of UCC-l financing statements and any other
notices or filings.
1.12
Application of
Amounts Received. Subject to applicable law, Purchaser reserves the
right to apply any amounts received from Seller to any fees or
other charges due to Purchaser from Seller prior to applying such
amounts to reduce the amount of any outstanding Purchased
Amount.
1.13
Acknowledgment of
Security Interest and Security Agreement. The Future Receipts sold
by Seller to Purchaser pursuant to this Agreement are "accounts",
"general intangibles", or "payment intangibles" as those terms are
defined in the Uniform Commercial Code as in effect in the state in
which the Seller is located (the "UCC") and such sale shall
constitute and shall be construed and treated for all purposes as a
true and complete sale, conveying good title to the Future Receipts
free and clear of any liens and encumbrances, from Seller to
Purchaser. To the extent the Future Receipts are "accounts" or
"payment intangibles" then (i) the sale of the Future Receipts
creates a security interest as defined in the UCC, (ii) this Agreement
constitutes a "security agreement" under the UCC, and (iii)
Purchaser has all the rights of a secured party under the UCC with
respect to such Future Receipts. Seller further agrees that, with
or without an Event of Default, Purchaser may notify account
debtors, or other persons obligated on the Future Receipts, of
Seller's sale of the Future Receipt and may instruct them to make
payment or otherwise render performance to or for the benefit of
Purchaser.
1.14
Financing Statements. Seller hereby authorizes Purchaser to file
one or more financing statements in order to give
notice
that the Purchased Amount of Future Receipts is the sole property
of Purchaser. Each such filing may state that
such
sale is intended to be a sale and not an assignment for security
and may state that the Seller is prohibited from
obtaining
any financing that impairs the value of the Future Receipts or
Purchaser's right to collect same. Seller authorizes
Purchaser
to apply amounts received from Seller to costs incurred by
Purchaser associated with the filing, amendment or
termination
of any such filings.
II.
SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
2.1
Good Faith. Best
Efforts and Due Diligence. Seller will conduct its business in good
faith and will use its best efforts to maintain and grow its
business, to ensure that Purchaser obtains the Purchased Amount.
Furthermore, Seller agrees, warrants and represents hereby that
Seller will constantly perform all appropriate Due Diligence and
credit checks of all of the customers' finances, cash flow,
solvency, good faith, payment histories and business reputations
(the "Due Diligence Requirements") as may be commercially
reasonable to ensure any and all products and/or services provided,
sold or delivered by Seller to said customers will be paid for by
customers in full and on time, and will not result in the creation
of an unpaid account. This is not a guaranty of payment by Seller's
customers, but is an obligation of commercially reasonable Due
Diligence investigation and credit check of customers before
extending credit to them and continuing no less frequently than
monthly so long as sums are still due.
2.2
Nonrecourse Sale of
Payment Rights. Seller represents and warrants that it is selling
the Purchased Amount of Future Receipts to Purchaser in Seller's
normal course of business and the Purchase Price paid by Purchaser
is good and valuable consideration for the sale. Seller is selling
a portion of a future revenue stream to Purchaser at a discount,
not borrowing money from Purchaser. If Future Receipts are remitted
more slowly than Purchaser may have antic pated 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 operations in the ordinary course of
business, and Seller has not breached this Agreement, Seller would
not owe anything to Purchaser and would not be in breach of or
default under this Agreement. By this Agreement, Seller transfers
to Purchaser full and complete ownership of the Purchased Amount of
Future Receipts and Seller retains no legal or equitable interest
therein.
2.3
Financial Condition
and Financial Information. Seller's and Guarantors' bank and
financial statements, copies of which have been furnished to
Purchaser, and future statements that will be furnished hereafter
at the request of Purchaser, fairly represent the financial
condition of Seller and Guarantor(s) at such dates, and since those
dates there has been no material adverse changes, financial or
otherwise, in the condition, operation or ownership of Seller.
Seller and Guarantor(s) have a continuing, affirmative obligation
to advise Purchaser of any material adverse change in their
financial condition, operation or ownership. Purchaser may request
statements at any time during the performance of this Agreement and
the Seller and Guarantor(s) shall provide them to Purchaser within
5 business days. Seller's or Guarantors' failure to do so is a
material breach of this Agreement.
2.4
Governmental
Approvals. Seller is in compliance and shall comply with all laws
and has valid permits, authorizations 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.
2.5
Authorization.
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 duly
authorized.
2.6
Insurance. Seller
will maintain business-interruption insurance naming Purchaser as
loss payee and additional insured in amounts and against risks as
are satisfactory to Purchaser and shall provide Purchaser proof of
such insurance upon request.
2.7
Processor and Bank
Account. Seller will not change its Credit Card processor, add
terminals, change its financial institution or bank account(s) or
take any similar action that could have an adverse effect upon
Seller's obligations under this Agreement, without Purchaser's
prior written consent. Any such changes shall be a material breach
of this Agreement.
2.8
Change of Name,
Type. Location or Sale of Business.
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other
than as disclosed to Processor and Purchaser, nor will Seller
change any of its places of business or the type of business
without prior written consent by Purchaser. Seller will not sell,
dispose, transfer or otherwise convey its business or assets
without (i) the express prior written consent of Purchaser, and
(ii) the written agreement of any purchaser or transferee assuming
all of Seller's obligations under this Agreement pursuant to
documentation satisfactory to Purchaser.
2.9
Daily Batch Out.
Seller will ensure that all Credit Card transactions are
communicated daily to the Processor and not later than the day on
which such transactions occurred.
2.10
Estoppel
Certificate. Seller will at all times, and from time to time, upon
at least 1 day's prior notice from Purchaser to Seller, execute,
acknowledge and deliver to Purchaser and/or to any other person,
firm or corporation specified by Purchaser, a statement certifying
that this Agreement is unmodified and in full force and effect (or,
if there have been modifications, that the same is in full force
and effect as modified and stating the modifications) and stating
the dates which the Purchased Amount or any portion thereof has
been delivered to Purchaser or the amount of the Purchased Amount
that has not been delivered to Purchaser.
2.11
No Bankruptcy. As
of the date of 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 6
months prior to the date of this Agreement, and that it has no
present intention of closing its business or ceasing to operate its
business, either permanently or temporarily, during the
6 month period
after the date of this Agreement. Seller further warrants that it
does not anticipate filing any such bankruptcy petition and it does
not anticipate that an involuntary petition will be filed against
it.
2.12
Sharing of
Information. Seller hereby authorizes Purchaser to share
information regarding Seller's performance under this Agreement
with affiliates and unaffiliated third parties.
2.13
Unencumbered
Receipts. Seller has good, complete, unencumbered and marketable
title to all Future Receipts, free and clear of any and all
liabilities, liens, claims, changes, restrictions, conditions,
options, rights, mortgages, security interests, equities, pledges
and encumbrances of any kind or nature whatsoever or any other
rights or interests that may be inconsistent with the transactions
contemplated with, or adverse to the interests of
Purchaser.
2.14
Business Purpose.
Seller is a valid business in good standing under the laws of the
jurisdictions in which it is organized and/or operates. Seller
agrees to use the Purchase Price solely for business purposes, and
not for personal, family or household purposes. Seller understands
that Seller's agreement not to use the Purchase Price for personal,
family or household purposes means certain important rights
conferred upon consumers pursuant to federal or state law will not
apply to this Agreement. Seller agrees that a breach by Seller of
the provisions of this section will not affect Purchaser's rights
to the Purchased Amount or to use any remedy legally available to
Purchaser to obtain delivery of the Purchased Amount.
2.15
Defaults under
Other Contracts. Seller's execution of, and/or performance under
this Agreement, will not cause or create an Event of Default by
Seller under any contract with another person or
entity.
2.16
Account. Seller
represents and warrants that (i) the Account is Seller's bank
account; (ii) the person executing this Authorization on behalf of
Seller is an authorized signer on the Account and has the power and
authority to authorize Purchaser to initiate ACH transactions to
and from the Account; (iii) the Account is a legitimate, open, and
active bank account used sol el y for business s purposes and not
for persona I, family or household purposes.
III.
EVENTS OF DEFAULT AND REMEDIES
3.1.
Events of Default.
The occurrence of any of the following events shall constitute an
"Event of Default": (a) Seller intentionally interferes with
Purchaser's right to collect the Daily Payment in violation of this
Agreement; (b) Seller violates any term or covenant in this
Agreement;(c) Any
representation or warranty by Seller in this Agreement proves to
have been incorrect, false or misleading in any material respect
when made; (d) the sending of notice of termination by Seller; (e)
Seller transports, moves, interrupts, suspends, dissolves or
terminates its business; (f) Seller transfers or sells all or
substantially all of its assets; (g) Seller makes or sends notice
of ny intended bulk sale or transfer by Seller; (h) Seller uses
consent of Purchaser (i) Seller changes its depositing account or
the Processor without the prior written consent of Purchaser; (j)
Seller defaults under any of the terms, covenants and conditions of
any other agreement with Purchaser; or (k) Seller fails to provide
timely notice to Purchaser such that in any given calendar month
there is on e or more AC H transaction attempted by Purchaser that
is rejected by Seller's bank for insufficient funds.
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3.2
Remedies. If any Event of Default occurs, A Purchaser may
proceed to protect and enforce its rights including, but not
limited to, the following: & The Specified Percentage shall
equal 100%. The full uncollected Purchased Amount plus all fees
(including legal fees) due under this Agreement wiII become due and
payable in full immediately.
B
Purchaser may
enforce the provisions of the Performance Guaranty against the
Guarantor(s).
C
Seller hereby
authorizes Purchaser to execute in the name of the Seller a
Confession of Judgment in favor of Purchaser in the full
uncollected Purchased Amount and enter that Confession of Judgment
as a Judgment with the Clerk of any Court and execute
thereon.
D
Purchaser may
proceed to protect and enforce its rights and remedies by lawsuit.
In any such lawsuit, under which Purchaser shall recover Judgment
against Seller, Seller shall be liable for all of Purchaser's costs
of the Iawsuit, including but not Iimited to aII reasonable
attorneys' fees and court costs.
E
This Agreement
shall be deemed Seller's Assignment of Seller's Lease of Seller's
business premises to Purchaser. Upon an Event of Default, Purchaser
may exercise its rights under this Assignment of Lease without
prior notice to Seller.
F
Purchaser may debit
Seller's depository accounts wherever situated by means of ACH
debit or facsimile signature on a computer-generated check drawn on
Seller's bank account or otherwise for all sums due to
Purchaser.
G
Seller shall pay to
Purchaser all reasonable costs associated with the Event of Default
and the enforcement of Purchaser's remedies set forth above,
including but not limited to court costs and attorneys'
fees.
All
rights, powers and remedies of Purchaser in connection with this
Agreement may be exercised at any time by Purchaser after the
occurrence of a n Event of Default , are cumulative and not
exclusive, and s ha II be in addition to any other rights, powers
or remedies provided by law or equity.
3.3.
Required
Notifications. Seller is required to give Purchaser written notice
within 24 hours of any filing under Title 11 of the United States
Code. Seller is required to give Purchaser 7 days' written notice
prior to the closing of any sale of all or substantially all of the
Seller's assets or stock.
IV.
MISCELLANEOUS
4.1
Modifications:
Agreements. No modification, amendment, waiver or consent of any
provision of this Agreement shall be effective unless the same
shall be in writing and signed by Purchaser.
4.2
Assignment.
Purchaser may assign, transfer or sell its rights to receive the
Purchased Amount or delegate its duties hereunder, either in whole
or in part, with or without prior written notice to
Seller.
4.3
Notices. All
notices, requests, consents, demands and other communications
hereunder shall be delivered by certified mail, return receipt
requested, to the respective parties to this Agreement at the
addresses set forth in this Agreement. Notices to Purchaser shall
become effective only upon receipt by Purchaser. Notices to Seller
shall become effective three days after mailing.
4.4
No Waiver of
Remedies. No failure on the part of Purchaser to exercise, and no
delay in exercising, any right under this Agreement shall operate
as a waiver thereof, nor shall any single or partial exercise of
any right under this Agreement preclude any other or further
exercise thereof or the exercise of any other right. The remedies
provided hereunder are cumulative and not exclusive of any remedies
provided by law or equity.
6
4.5
Binding Effect;
Governing Law, Venue and Jurisdiction. This Agreement shall be
binding upon and inure to the benefit of Seller, Purchaser and
their respective successors and assigns, except that Seller shall
not have the right to assign its rights hereunder or any interest
herein without the prior written consent of Purchaser which consent
may be withheld in Purchaser's sole discretion. This Agreement
shall be governed by and construed in accordance with the laws of
the state of New York, without regards to any applicable principals
of conflicts of I a w. Any suit, action or proceeding arising
hereunder, or the interpretation, performance or breach of this
Agreement, shall, if Purchaser so elects, be instituted in any
court sitting in New York, (the "Acceptable Forums"). Seller agrees
that the Acceptable Forums are convenient to it, and submits to the
jurisdiction of the Acceptable Forums and waives any and all
objections to jurisdiction or venue. Should such proceeding be
initiated in any other forum, Seller waives any right to oppose any
motion or application made by Purchaser to transfer such proceeding
to an Acceptable Forum. ADDITIONALLY, MERCHANT AND GUARANTOR AGREE
THAT ANY SUMMONS AND/OR COMPLAINT OR OTHER PROCESS TO COMMENCE ANY
LITIGATION BY PURCHASER WILL BE PROPERLY SERVED IF MAILED BY
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE MAILING AD DR
ESS{ES) LI STED 0 N PAGE 1 0 F TH I 5 AG REEM ENT.
4.6
Survival of
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 in full and this Agreement
shall have terminated.
4.7
Interpretation. All
Parties hereto have reviewed this Agreement with a n attorney of
their own choosing and have relied only on their own attorney's
guidance and advice. No construction determinations shall be made
against either Party hereto as drafter.
4.8
Severability. In
case any of the provisions in this Agreement is found to be
invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of any other provision contained herein
shall not in any way be affected or impaired.
4.9
Entire Agreement.
Any provision hereof prohibited by law shall be ineffective only to
the extent of such prohibition without invalidating the remaining
provisions hereof. This Agreement and the Performance Guaranty
embody the entire agreement between Seller and Purchaser pertaining
to the subject matter thereof and supersede all prior agreements
and understandings relating to the subject matter
hereof.
4.10 Facsimile
Acceptance. Facsimile signatures hereon shall be deemed acceptable
for all purposes.
4.11
Monitoring,
Recording. and Solicitations. If any Event of Default occurs,
Purchaser may proceed to protect and enforce its rights including,
but not limited to, the following:
A.
AUTHORIZATION TO
CONTACT SELLER BY PHONE. Seller and each Owner authorize Purchaser,
its affiliates, agents and independent contractors to contact
Seller and each Owner at any telephone number Seller or any Owner
provides to Purchaser or from which Seller or any Owner places a
call to Purchaser, or any telephone number where Purchaser believes
it may reach Seller or any Owner, using any means of communication,
including but not limited to calls or text messages to mobile,
cellular, wireless or similar devices or calls or text messages
using an automated telephone dialing system and/or artificial
voices or prerecorded messages, even if Seller or and Owner incurs
charges for receiving such communications .
B
AUTHORIZATION TO
CONTACT SELLER BY OTHER MEANS. Seller and each Owner also agree
that Purchaser, its affiliates, agents and independent contractors,
may use any other medium not prohibited by law including, but not
limited to, mail, e-mail and facsimile, to contact Seller and each
Owner. Seller and each Owner expressly consent to conduct business
by electronic means.
C
RIGHTS TO OPT-OUT
OR MAKE CHANGES. Seller and each Owner are not required to agree to
Sections 4.11{A) or 4.11{B) in order to enter into this Agreement.
I f Seller or any Owner wishes to opt out of Section 4.11{A) and/or
4.11{B)' or if Seller or any Owner wants to change how Purchaser
contacts them, including with respect to any telephone number that
Purchaser might use, please call Everest Business Funding at
800-558-0654 (and select Customer Service from the menu
prompts).
V. JURY
TRIAL WAIVER.
THE
PARTIES HERETO WAIVE TRIAL BY JURY IN ANY COURT IN ANY SUIT, ACTION
OR PROCEEDING ON ANY MATTERS ARISING IN
CONNECTION WITH OR IN ANY WAY RELATED TO THE TRANSACTIONS OR THE
ENFORCEMENT HEREOF. THE PARTIES HERETO ACKNOWLEDGE THAT EACH MAKES
THIS WAIVER KNOWINGLY, WILLINGLY AND VOLUNTARILY AND WITHOUT
DURESS, AND ONLY AFTER EXTENSIVE CONSIDERATION OF THE RAMIFICATIONS
OF THIS WAIVER WITH THEIR ATTORNEYS.
7
|
Seller's
Business Name
|
GUIDED
THERAPEUTICS, INC
|
|
|
|
Seller's
D/B/A
|
|
|
|
|
Physical
Address
|
5835
Peachtree Corners E Ste B
|
ICity
|
Norcross
|
|
State
/GA
|
IZip
130092
|
jFederal
Tax Id
|
58-2029543
|
VI.
CLASS ACTION WAIVER.
PURCHASER, SELLER,
AND EACH GUARANTOR ACKNOWLEDGE AND AGREE THAT THE AMOUNT AT ISSUE
IN THIS TRANSACTION AND ANY DISPUTES THAT ARISE BETWEEN THEM ARE
LARGE ENOUGH TO JUSTIFY DISPUTE RESO LUTI 0 NON AN IN DI VI DUAL
BASI S. EACH PARTY HERETO WAI VES ANY RI GHT TO ASSERT ANY CLAI MS
AGAI NST 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 EITHER PARTY IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED
WITH A CLASS OR 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
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
REPRESENTATIVE ACTION.
VII.
ARBITRATION.
I F
Purchaser, Seller or a Guarantor requests, the other party and the
Guarantor(s) agree to arbitrate all disputes and claims arising out
of or relating to this Agreement. I f a party or a Guarantor seeks
to have a dispute settled by arbitration, that party or Guarantor
must first s end to the other party, by certified ma i I, a written
Notice of Intent to Arbitrate. I f the parties or the Guarantor(s)
do not reach an agreement to resolve the claim within 30 days after
the Notice is received, either party or the Guarantor(s) may
commence an arbitration proceeding with the American Arbitration
Association ("AAA"). Purchaser will promptly reimburse Seller or
the Guarantor any arbitration filing fee, however, in the event
that both the Seller and the Guarantor must pay filing fees,
Purchaser will only reimburse the Seller's arbitration filing fee.
Except as provided in the next sentence, Purchaser will pay all
administration and arbitrator fees. If the arbitrator finds that
either the substance of the claim raised by Seller or the
Guarantor(s) or the relief sought by Seller or the Guarantor(s) is
improper or not warranted, as measured by the standards set forth
in Federal Rule of Procedure l1(b), then Purchaser will pay these
fees only if required by the AAA Rules. If the arbitrator grants
relief to the Seller or the Guarantor(s) that is equal to or
greater than the value of what the Seller or the Guarantor(s)
requested in the arbitration, Purchaser shall reimburse Seller or
the Guarantor(s) for that person's reasonable attorneys' fees and
expenses incurred for the arbitration. Seller and the Guarantor(s)
agree that, by entering into this Agreement, they are waiving the
right to trial by jury. EACH PARTY AND THE GUARANTOR(S) 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, the parties and the
Guarantor(s) 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, and that if this specific provision is found
unenforceable, then the entirety of this arbitration clause shall
be null and void. SELLER AND ANY G UARANTO R MAY 0 PT 0 UT 0 F TH I S CLAUS E. To opt
out of this Arbitration CI a use, Seller and/or Guarantor may send
Purchaser a notice that the Sell r or Guarantor does not want this
clause to apply to this Agreement. For any opt-out to be effective,
Seller and/or Guarantor must send an opt-out notice to the
following address by registered mail, within 14 days after the date
of this Agreement:
Customer
Service Department Everest Business Funding 5 West 37th Street
Suite 1100 New York, NY 10018
8
Personal Guaranty
of Performance. EBF Partners, LLC d/b/a Everest Business Funding
("Purchaser") is buying the Purchased Amount of Future Receipts
from the above-referenced Seller, knowing the risks that Seller's
business may slow down or fail, and Purchaser assumes these risks
based on Seller's representations, warranties and covenants in the
Payment Rights Purchase and Sale Agreement (the "Agreement")' which
are designed to give Purchaser a reasonable and fair opportunity to
receive the benefit of its bargain. The undersigned Guarantor{s}
hereby unconditionally guarantees to Purchaser, Seller's good
faith, truthfulness and prompt and complete performance of a II of
the representations, warranties, covenants made by Sell er in the
Agreement as each may be renewed, amended, extended or otherwise
modified (the "Guaranteed Obligations"). Guarantor's obligations
are due a t the time of any Event of Default {a s defined in the
Agreement}.
Guarantor Waivers.
In the Event of Default, Purchaser may seek recovery from Guarantor
for all of Purchaser's losses and damages by enforcement of
Purchaser's rights under this Performance Guaranty without first
seeking to obtain payment from Seller or any other guarantor, or
any other guaranty.
Purchaser does not
have to notify Guarantor of any of the following events and
Guarantor will not be released from its obligations under the
Agreement and this Performance Guaranty if it is not notified of:
Ii} Seller's failure to pay timely any amount owed under the
Agreement; Iii) any adverse change in Seller's financial condition
or business;{iii} Purchaser's acceptance of the Agreement; and {iv}
any renewal, extension or other modification of the Agreement or
Seller's other obligations to Purchaser. In addition, Purchaser may
take any of the following actions without releasing Guarantor from
any of its obligations under the Agreement and this Performance
Guaranty: {i}renew, extend or otherwise
modify the Agreement or Seller's other obligations to Purchaser;
and {ii} release Seller from its obligations to Purchaser.
Guarantor shall not seek reimbursement from Seller or any other
guarantor for any amounts paid by it under the Agreement or this
Performance Guaranty. Guarantor permanently waives and shall not
seek to exercise any of the following rights that it may have
against Seller, or any other guarantor, for any amounts paid by it,
or acts performed by it, under the Agreement or this Performance
Guaranty: Ii} subrogation; Iii) reimbursement;{iii} performance;
(iv) indemnification; or (v) contribution. I n the event that
Purchaser must return any amount paid by Seller or any other
guarantor of the Guaranteed Obligations because that person has
become subject to a proceeding under the United States Bankruptcy
Code or any similar law, Guarantor's obligations under the
Agreement and this Performance Guaranty shall include that
amount.
Guarantor
Acknowledgement. Guarantor acknowledges that: {i} He / She / They
understand the seriousness of the provisions of the Agreement,
including the Jury TriaI Waiver and Arbitration sections, and this
Performance Guaranty; (i i) He / She / They have had a full
opportunity to consult with counsel of his / her /their choice; and
(iii) He / She / They have consulted with counsel of hi s / her /
their choice or have decided not to prevail himself / hers elf /
themselves of that opportunity.
Joint
and Several liability. The obligations hereunder of the persons or
entities constituting Guarantor under the Agreement and this
Performance Guaranty are joint and several.
THE
TERMS, DEFINITIONS, CONDITIONS AND INFORMATION SET FORTH IN THE
PAYMENT RIGHTS PURCHASE AND SALE AGREEMENT, INCLUDING THE PAYMENT
RIGHTS PURCHASE AND SALE AGREEMENT TERMS AND CONDITIONS, ARE HEREBY
INCORPORATED IN AND MADE A PART OF THIS PERFORMANCE GUARANTY.
CAPITALIZED TERMS NOT DEFINED IN THIS PERFORMANCE GUARANTY, SHALL
HAVE THE MEANING SET FORTH IN THE PAYMENT RIGHTS PURCHASE AND SALE
AGREEMENT, INCLUDING THE PAYMENT RIGHTS PURCHASE AND SALE AGREEMENT
TERMS AND CONDITIONS.
MUST
SIGN AS OWNER
GUARANTOR:
/s/
John Edwin Imhoff
John
Edwin Imhoff
Director
Guided
Therapeutics, Inc.
9