ACCOUNT PURCHASE AGREEMENT
Exhibit
10.47
This
Agreement is dated as of April 6, 2009 between Premier Trade Solutions, Inc.,
(“PTSI”) and Drinks Americas, Inc. (“Client”). The Client and PTSI agree as
follows:
ARTICLE
I
Purpose
of Agreement
1.01 Purpose of Agreement. The
Client desires to sell and assign to PTSI accounts receivable and PTSI desires
to purchase selected accounts on the terms and conditions set forth herein and
in connection with the Assignment and Schedule of Accounts executed in
connection with each Account purchase. The purpose of this agreement is
commercial in nature and not for household, family and/or personal
use.
ARTICLE
II
Definitions
2.01 “Account” means any right
of payment of the net amount for goods sold, or leased and delivered or services
rendered in the ordinary course of Client’s business which is not evidenced by
an instrument or chattel paper.
2.02 “Acceptable Account”
means an Account which conforms to the warranties and terms set forth
herein or at PTSI’s sole discretion, net of any credits or allowances of any
nature and is not an Unacceptable Account as defined below.
2.3 “Account Debtor” means
Client’s customer or any other person or entity owing money to the Client with
respect to the Account.
2.4 “Account Debtor Dispute”
means a claim by Account Debtor against Client, of any kind whatsoever,
that reduces or may reduce the amount collectible from Account Debtor by PTSI
which arises at anytime, whether before or after signing of this Agreement or
the purchase of any Account.
2.5 “Collateral” means the
intangible or tangible property given as security to PTSI by Client for any
obligations and liabilities of Client to PTSI under this Agreement.
2.6 “Client” means the seller
and assignor of the Accounts.
2.7 “Event of Default” shall
mean the existence of a default pursuant to Article VII hereunder, or a default
under any documents given to PTSI in connection with this
Agreement.
2.8 “Initial Payment” shall
mean with respect to a given Account an amount equal to the gross face amount of
such Account less stated trade discounts offered by the Customer to the Account
Debtor less twenty percent (20.0%). This percentage may be adjusted by PTSI at
any time at PTSI’s sole discretion.
2.9 “Net Purchase Price” means
an amount equal to the gross face amount of each Account less PTSI’s Fee and
less other charges with respect to such Account including but not limited to any
amount of any trade discounts, credits or allowances, or any other reductions or
adjustments to such Account taken by the Account Debtor.
2.10 “Part Payment” means any
payment made by PTSI to the Client which is less than the full Net Purchase
Price as more fully described in Article III below.
2.11 “PTSI Fee” means a fee of
one and three-quarters percent (1.75%) charged on the gross invoice amount for
the first thirty (30) day period from the date of invoice purchase to the date
of invoice payment, with an additional fee of seven basis points (0.07%) charged
for each day thereafter until paid in full
2.12 “Repurchase Price” for
any Account means the Net Purchase Price less any amounts collected from the
Account Debtor on the Account plus PTSI’s Fee and all other fees, costs or
expenses associated with the repurchase or collection of such Account. In any
event where repurchase is required under this Agreement, PTSI, in its
discretion, may charge back the Repurchase Price to Client’s account which may
create a deficit balance under Section 3.04 below.
2.13 “Unacceptable Account”
shall mean Accounts which are not acceptable in PTSI’s sole discretion
including but not limited to the following Accounts:
(a)
Accounts owed by any unit of government, whether foreign or domestic (provided,
however, that there shall be included in Acceptable Accounts that portion of
Accounts owed by such units of government for which the Client has provided
evidence satisfactory to PTSI that (i) PTSI has a first priority perfected
security interest and (ii) such Accounts may be enforced by PTSI directly
against such unit of government under all applicable laws);
(b)
Accounts owed by an Account Debtor located outside the United States which are
not (i) backed by a bank letter of credit naming PTSI as beneficiary or assigned
to PTSI, in PTSI’s possession and acceptable to PTSI in all respects, in its
sole discretion, (ii) covered by a foreign receivables insurance policy
acceptable to PTSI in its sole discretion;
(c)
Accounts owed by an Account Debtor that is insolvent, the subject of bankruptcy
proceedings or has gone out of business;
(d)
Accounts owed by a shareholder, subsidiary, affiliate, officer or employee of
the Client;
(e)
Accounts not subject to a duly perfected security interest in PTSI’s favor or
which are subject to any lien, security interest or claim in favor of any Person
other than PTSI including without limitation any payment or performance
bond;
(f)
Accounts that have been restructured, extended, amended or
modified;
(g) That
portion of Accounts that constitutes advertising, finance charges, service
charges or sales or excise taxes; and
(h)
Accounts, or portions thereof, that fail to conform to the representation and
warranties contained herein or are otherwise deemed unacceptable by PTSI in its
sole discretion.
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ARTICLE
III
Purchase
of Accounts
3.01 Approval: PTSI shall
consider the purchase of Accounts submitted to PTSI by Client for approval. PTSI
is not obligated to buy any Account from Client which PTSI does not deem
acceptable in its sole discretion.
3.02 Purchase: Upon approval
and acceptance by PTSI of an Account for the assignment and sale of an Account
to PTSI, Client shall be entitled to an Initial Payment.
3.03 Purchase Price: As
consideration for the assignment and sale of an Account to PTSI, PTSI shall pay
the to the Client the Net Purchase Price on the terms and conditions as stated
herein.
3.04 Payment of Purchase
Price: If no Default exists hereunder, PTSI shall pay for each Account purchased
hereunder the Net Purchase Price for such Account to Client as
follows:
(a) Upon
assignment or sale of an Account to PTSI, and receipt of all documents and forms
described in Section 3.05 below and upon fulfillment of all terms precedent to
such sale or assignment as more fully described below, PTSI shall pay to the
Client the Initial Payment for such Account.
(b) After
collection of an Account in full by PTSI, and if there is no Event of Default
hereunder, PTSI shall pay to the Client the amount collected on the Account
less: (i) the Initial Payment, (ii) Part Payment(s), and (iii) any fees,
expenses or charges owed to PTSI as more fully described herein.
(c) In
the event of a default hereunder (or an event which with the passage of time or
notice would become an event of default), PTSI may withhold any payment
otherwise due to Client under this Agreement and charge any obligation of Client
to PTSI against such amount or PTSI may hold such amount as collateral for any
such obligations of Client to PTSI.
3.05 Reporting and Statement
of Account: On a weekly basis, or as otherwise determined by PTSI in its sole
discretion, PTSI shall prepare, and make available to the Client, an accounting
of the purchases, collections, fees and charges related to this Agreement which
have occurred during that week or other period. Should such a statement of
account indicate a deficit balance, the Client shall immediately pay to PTSI,
the amount of such deficit plus accrued interest on such deficit balance.
Interest shall accrue on any deficit balance at the annual rate of eighteen
percent (18%), calculated on a daily basis, not to exceed the applicable legal
limit, until such deficit is paid in full.
3.06 Required Forms: When
Client offers Accounts to PTSI for sale, PTSI shall receive (i) an assignment of
Accounts, in a form satisfactory to PTSI and signed by an authorized
representative of Client, (ii) an original invoice or such other document
acceptable to PTSI in its sole discretion, (iii) a copy of the Xxxx of Lading,
(iv) proof of delivery, (v) contract, purchase order, or purchase order number
which corresponds with such invoice(s), as appropriate to the business of
Client, (vi) notification of assignment and waiver of offset signed by the
Account Debtor in a form acceptable to PTSI in its sole discretion, (vii) a
three party agreement with any entity or person which holds a security interest
in the Accounts of Customer or otherwise has an interest in the same, and (vii)
and any other document which PTSI may require.
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3.07 Labels: Client shall
imprint, label, or otherwise xxxx each original invoice (or the electronic
equivalent of an invoice) or other such documentation accepted by PTSI for each
Account being sold to PTSI which indicates that the Account has been sold to
PTSI with the following language:
This
invoice has been assigned to
and
is payable to:
Premier
Trade Solutions, Inc.
P.
O. Xxx 0000
Xxxxxx,
XX 00000-0000
3.08 Notification: PTSI may at
any time, and at its sole discretion, notify any Account Debtor of the
assignment of the Account sold to PTSI and direct the Account Debtor to make
payments directly to PTSI.
3.09 Sole Property: Once PTSI
has purchased an Account, any and all payments from the Account Debtor as to
that Account are the sole property of PTSI.
3.10 Book Entry: Client shall,
immediately upon sale of Accounts to PTSI, make proper entries on its
books
and
records disclosing the absolute sale of said Accounts to PTSI, including the
proper inclusion of the language stated in paragraph 3.06 above, on said books
and records and other documents as so directed by PTSI. Such entry shall include
the fee set forth in the Account Purchase Addendum for each particular account
purchased by PTSI.
3.11 PTSI may settle any
Account Debtor Dispute with the relevant Account Debtor. Such settlement does
not
relieve
Client of any obligation (including any repurchase obligation) under this
Agreement with respect to any Accounts.
ARTICLE
IV
Client’s
Representations, Warranties and Covenants
4.01 Representations and
Warranties. Client hereby represents and warrants and as follows:
4.01 (a) Client is properly
licensed, qualified and authorized to operate the business of Drinks Americas,
Inc. under the laws of Delaware under the trade name(s) of N/A and Client’s
trade name(s) have been properly filed and published as required by applicable
law. Client, and the persons executing this document, are duly authorized to
execute and deliver this Agreement and all other documents required to be
executed and delivered hereunder.
4.01 (b) Client is solvent, is
not a Debtor under the United States Bankruptcy Code or under the direction of a
receiver, and Client has made and shall continue to make timely payment on
deposit of any tax required to be deducted and withheld by Client from the wages
of any of its employees.
4.01 (c) Client is, at the
time of purchase of each Account by PTSI, the lawful owner of and has good and
undisputed title to such Account. Each Account, at the time of purchase is free
from any liens, mortgages, restrictions or encumbrances. Each Account offered
for sale to PTSI is an Acceptable Account as defined above.
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4.01 (d) Each Account Debtor’s
business is solvent to the best of Client’s information and
knowledge.
4.01 (e) Each Account offered
for sale to PTSI is an accurate and undisputed statement of indebtedness owed by
Account Debtor to Client for a certain sum which is due and payable in 30 days
or less, or within such time as is agreed to in writing by PTSI and Client, is
for a bona fide sale, delivery and acceptance of merchandise or performance of
services which have been received and finally accepted by the Account Debtor.
Client has all rights to transfer or sell such Accounts to PTSI and is payable
by Account Debtor without offset, deduction or counterclaim.
4.01 (f) Client does not own,
control or exercise dominion over, in any way whatsoever, the Account Debtor or
the business of any Account Debtor for whom Accounts are to be sold by Client to
PTSI.
4.01 (g) All financial
records, statements, books or other documents shown to PTSI by Client at
anytime, either before or after the signing of this Agreement are true and
accurate.
4.01 (h) Client has not
transferred, pledged or granted a security interest in Client’s Accounts or
other personal property to any other party which Client has not fully disclosed
in writing to PTSI.
4.01 (i) There is no action,
suit or proceeding at law or in equity or by or before any governmental
instrumentality or other agency now pending, or to the knowledge of Client,
threatened against or affecting Client, which if adversely determined, would
have a material adverse effect on the business, operations, property, assets or
condition, financial or otherwise, of Client.
4.01 (j) The execution and
performance by Client of the terms and provisions of this Agreement and the
execution and delivery of any other documents required to be executed and
delivered hereunder have been duly authorized by all requisite company action,
and neither the execution nor the performance of this Agreement or any other
documents required to be delivered hereunder, will violate any provision of law,
any order of any court or other agency of government, the governing documents of
any Client, or any agreement or other instrument to which Client is a party, or
by which Client is bound, or be in conflict with, result in breach of, or
constitute (with due notice or lapse of time or both) a default under, or result
in the creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the property or assets of Client, pursuant to any such
agreement or instrument, except as provided hereunder. Client agrees that it
will execute and perform all terms hereunder.
4.01 (k) No Account presented
for sale to PTSI is disputed or subject to a claim of offset or a contra
account.
4.02 Negative Covenants.
Client agrees as follows:
4.02 (a) Client will not under
any circumstances or in any manner whatsoever, interfere with any of PTSI’s
rights under this Agreement.
4.02 (b) For the duration of
this Agreement and for any period thereafter for as long as any obligation to
repurchase or indebtedness whatsoever remains owing by Client to PTSI, Client
will not sell or assign Accounts except to PTSI.
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4.02 (c) Client shall not, and
shall not consent to the transfer, pledge or grant a security interest to,
placement of any lien or encumbrance, by any other party on any personal
property or accounts belonging to the Client for the term of this Agreement and
for as long as Client may be required to repurchase any Account or is indebted
to PTSI hereunder without the written consent of PTSI. Client shall provide
written notice to PTSI within five business days of Client obtaining any
knowledge, from any source, of the assertion, filing, recording or perfection by
any means, of any non-consensual lien, claim or encumbrance against the property
of Client.
4.02 (d) Client will not
change or modify the terms of the original invoice or agreement with the Account
Debtor or the order of payment on Accounts sold to PTSI unless PTSI first
consents to such change or modification in writing.
4.02
(e) Client shall not intentionally contribute to, or aggravate any Credit
Problem of an Account Debtor.
4.02 (f) Client shall not be
involved in a dispute with an Account Debtor, regardless of validity, during the
term of this Agreement.
4.03 Affirmative Covenants.
Client agrees as follows:
4.03 (a) Client will maintain
such insurance covering Client’s business and/or the property of the Account
Debtors as is customary and adequate for businesses similar to the business of
Client in an amount as is sufficient to compensate for reasonably foreseeable
loss, and promptly pay all premiums with respect to the policies covering such
insurance. Further, at the request of PTSI, the Client shall have PTSI named as
loss payee for such insurance.
4.03 (b) Client will notify
PTSI in writing prior to any change in the location of any of its places of
business, including the location of the Client’s inventory or, if Client has or
intends to acquire any additional place of business. Client will not change its
chief executive office or the office or offices where Client’s books and records
concerning Accounts are kept.
4.03 (c) Client will
immediately notify PTSI in writing of any proposed change of Client’s name,
identity, legal entity, corporate structure, business dissolution, use of any
additional trade name, or any proposed change in any of the officers,
principals, partners, and/or owners of Client and will not effect any such
change without PTSI’s written consent.
4.03 (d) Client will
immediately notify PTSI in writing of the commencement of any legal proceeding
or service of any legal document affecting the Client including, but not limited
to, any judgments, liens, attachments, garnishments, complaints, or the filing
of a voluntary or involuntary petition under the United States Bankruptcy
Code.
4.03 (e)
Whenever any payment on an Account purchased by PTSI comes into Client’s
possession Client shall hold such payment in trust and safekeeping, as the
property of PTSI, and immediately turn over to PTSI such payment in the same
form as it was received by Client to PTSI. Should Client come into possession of
a check or other form of payment consisting of payment upon Accounts purchased
by PTSI and payment upon Accounts not purchased by PTSI, Client shall turnover
said payment in the same form it was received by Client to PTSI immediately.
After receipt of good funds therefore, PTSI shall apply the funds, first to
those Accounts purchased by PTSI and, second, to any amounts owed to PTSI. If no
Default exists hereunder, any remaining balance shall be paid to the Client.
Further, Client shall hold in trust and safekeeping, as the property of PTSI,
and immediately turn over to PTSI, any goods or inventory returned to, reclaimed
or repossessed by the Client which are covered by an Account purchased by PTSI.
Client shall pay a misdirected payment fee in the amount of fifteen percent
(15%) of the amount of any payment on account of a Purchased Account which has
been received by Client and not delivered in kind to PTSI on the next business
day following the date of receipt by Client.
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4.03
(f) At PTSI’s request, but at least once per quarter, or once per month
if Client is in default, Client will furnish to PTSI financial statements and
information as requested, including, but not limited to, satisfactory proof of
payment and compliance with all federal, state and local tax
requirements.
4.03
(g) Client will immediately notify PTSI of any dispute between Client and
Account Debtor or of the return of any product by Account Debtor to
Client.
4.03
(h) Client shall immediately notify PTSI of any
claim or loss or offset of any kind against Client or PTSI asserted by
Account Debtor during any time period covered by this
Agreement.
4.03
(i) Upon the occurrence of an Account Debtor Dispute, Client shall
immediately pay to PTSI the Repurchase Price for any and all Accounts so
disputed.
ARTICLE
V
Security
Interest
5.01 Security
Interest/Collateral: As further inducement for PTSI to enter into this
Agreement, Client hereby grants to PTSI, as security for the repayment of any
and all of Client's obligations hereunder, a security interest in all of
Client's equipment, fixtures, accounts, inventory, instruments, documents,
contract rights, chattel paper, general intangibles and the proceeds thereof
(including any insurance proceeds), now and hereafter owned by Client, or in
which Client now or hereafter may have any rights, together with any inventory
or goods owned by the secured party in the possession of Client wherever
situated and whenever acquired ("Collateral").
5.02 Security Documents:
Client shall execute all and deliver to PTSI any and all documents and
instruments as
PTSI may
request from time to time, including, without limitation, UCC financing
statements or amendments. Client authorizes PTSI to file a financing statement
with any appropriate authority reflecting its security interest and further
authorizes PTSI to file other filings including amendments (other than
amendments adding collateral) or terminations as PTSI deems appropriate. In
addition, Client further authorizes PTSI to have the postal service deliver
Client’s mail directly to PTSI. PTSI is entitled to retain any mail constituting
PTSI collateral and shall forward the remainder of the mail at Client’s written
instruction.
ARTICLE
VI
Operational
Provisions
6.01 Repurchase of Accounts:
In the event any Account purchased by PTSI has not paid in full within 90 days
of the invoice date, PTSI may (but is not required to) demand that Client
repurchase such Account within five (5) days of notice to repurchase by PTSI,
or, at PTSI’s option, PTSI may charge the Repurchase Price against any reserve
held by PTSI. In the event, the remedies of Article VIII apply.
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6.02 Power of Attorney: In
order to carry out this Agreement and avoid unnecessary notification of Account
Debtors, Client irrevocably appoints PTSI, or any person designated by PTSI, as
its special attorney in fact, or agent, with power to:
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i.
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strike
out Client’s address on all invoices delivered to Account Debtors and note
PTSI’s address on all invoices.
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ii.
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direct
the Postal Service to have all of Client’s mail directed to be delivered
to PTSI’s address and to receive, open and dispose of all mail addressed
to Client (including any trade name of Client) sent to PTSI’s
address.
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iii.
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endorse
the name of Client or Client’s trade name on any checks or other evidences
of payment that may come into the possession of PTSI on Accounts purchased
by PTSI or pursuant to default, and on any other documents relating to any
of the Accounts or to Collateral.
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iv.
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in
Client’s name, or otherwise, demand, xxx for, collect, and give releases
for any and all monies due to or become due on
Accounts.
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v.
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compromise,
prosecute, or defend any action, claim or proceeding as to said
Accounts.
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vi.
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from
time to time offer a trade discount to Client’s Account Debtor exclusive
of Client’s normal business custom with said Account
Debtor.
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vii.
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initiate
electronic debit or credit entries through the ACH system to Client’s
account or any other deposit account maintained by Client wherever
located.
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viii.
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Sign
Client’s name on any notice of assignment, financing statement, amendment
to any financing statement and on any notices to Account
Debtors.
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ix.
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do
any and all things necessary and proper to carry out the purposes intended
by this Agreement.
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The
authority granted to PTSI under this provision shall remain in full force and
effect until all assigned Accounts are paid in full and any indebtedness of
Client to PTSI is discharged.
6.03 Double Payments: Should
PTSI receive a double payment on an Account or other payment which is not
identified, PTSI shall carry these sums as open items in its accounting and
shall return any double payment to the payor or apply such unidentified payment
pursuant to the terms hereunder upon proper identification and
documentation.
6.04 Hold Harmless: Client
shall hold PTSI harmless against any Account Debtor ill will arising from PTSI’s
collecting or attempting to collect on any Accounts.
6.05 Taxes: Should any excise,
sale, use or other tax be imposed by any federal, state or local authority
requiring a deduction or withholding from the proceeds of sale of Accounts, or
if the Account Debtor is authorized to withhold and deduct such tax or levy,
then the Client shall immediately pay PTSI the amount of the tax or levy so
withheld, and the Client shall indemnify and hold PTSI harmless from any loss or
expense on account of such tax.
6.06 Reports: Except as
provided in Section 3.06, and in the event Client requests information from PTSI
regarding Client’s account hereunder, such requests shall be subject to
additional fees as determined by PTSI which fees may change from time to
time.
ARTICLE
VII
Default
7.01 Any one or more of the
following shall be an Event of Default hereunder:
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7.01 (a) Client shall fail to
pay any indebtedness to PTSI when due or repurchase any Account when required
hereunder.
7.01 (b) Client shall breach
any term, provision, promise, warranty, representation or covenant under this
Agreement, or under any other agreements, contracts, between Client and PTSI or
obligation to PTSI.
7.01 (c) The appointment of
any receiver or trustee of all or a substantial portion of the assets of
Client.
7.01 (d) Client shall become
insolvent or unable to pay debts as they mature, shall make a general assignment
for the benefit of creditors or shall voluntarily file a petition under the
United States Bankruptcy Code or any similar law.
7.01 (e) Any involuntary
petition in bankruptcy shall be filed against Client and shall not be dismissed
within 60 days or an order for relief is entered against Client under the United
States Bankruptcy Code.
7.01 (f) Any levies,
attachment, executions, tax assessments or similar process shall be issued
against the Collateral.
7.01 (g) Any financial
statements, profit and loss statements, or schedules, other statements or
documents furnished by Client to PTSI are false or incorrect in any material
respect.
7.01 (h) Any documents
submitted by Client to PTSI for the purchase of an Account are mistaken,
fraudulent, incorrect and/or erroneous, or if the Client fails to submit any
document required by PTSI under this Agreement for the purchase of that
Account.
7.01 (i) Any Account Debtor
shall assert a claim or offset of any kind against Client or PTSI during any
time period covered by this Agreement.
7.01 (j) Client shall attempt
to redirect Client’s mail for delivery to Client after PTSI has directed the
Postal Service to deliver such mail to PTSI.
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ARTICLE
VIII
Remedies
8.01 In the event of an
occurrence of an Event of Default, PTSI may do any one or more of the
following:
8.01 (a) Declare immediately
due and payable, and to charge back, all indebtedness of Client to PTSI,
including without limitation (i) outstanding purchased Accounts and (ii) all
other fees, costs and expenses as required hereunder.
8.01 (b) Cease purchasing
Accounts under this Agreement.
8.01 (b) Notify any Account
Debtor and take possession of Collateral and collect any Accounts without
judicial process.
8.01 (c) Require Client to
assemble the Collateral and the records pertaining to Accounts and make them
available to PTSI at a place designated by PTSI.
8.01 (d) Enter the premises of
Client and take possession of the Collateral and of the records pertaining to
the Accounts and any other Collateral.
8.01 (e) Grant extensions,
compromise claims and settle Accounts for less than face value, all without
prior notice to Client.
8.01 (f) Use, in connection
with any assembly or disposition of the Collateral, any trademark, trade name,
trade style, copyright, patent right or technical process used or utilized by
Client.
8.01 (g) Hold Client liable
for any deficiency for any amounts due and owing to PTSI.
8.01 (h) Require the Client to
repurchase any and all Accounts, whether disputed or undisputed, and pay the
Repurchase Price for those Accounts as provided herein.
8.01 (i) Cease making reports
or accountings to the Client as otherwise required by this
Agreement.
ARTICLE
IX
Term
and Termination
9.01 This Agreement shall
continue in full force and effect until the earliest of (a) a 30 notice by
either party of termination of the Agreement; or (b) any date set by PTSI upon
the occurrence of an Event of Default. On the date of termination, all
obligations owing by the Client to PTSI shall become immediately due and payable
in full without further notice or demand.
9.02 After termination, Client
shall repurchase any and all Accounts, whether disputed or undisputed, as may be
requested by PTSI, and shall pay the Repurchase Price for those Accounts as
provided herein as well as any other indebtedness or obligations owed to PTSI by
Client . PTSI continues and shall continue to have a security interest in the
Collateral of Client until all amounts owed to PTSI by Client are paid in full
or are satisfied.
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ARTICLE
X
Miscellaneous
Provisions
10.01 Binding on Future
Parties: This Agreement inures to the benefit of and is binding upon the heirs,
executors, administrators, successors and assigns of the parties
thereto.
10.02 Cumulative Rights: No
failure or delay by PTSI in exercising any right, power or remedy under the
Agreement or documents given in connection with the Agreement shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy under the Agreement. The remedies provided
herein are cumulative and not exclusive of any remedies provided by
law.
10.03 Waiver: PTSI may not
waive its rights and remedies unless the waiver is in writing and signed by
PTSI. A waiver by PTSI of a right or remedy under this Agreement on one occasion
is not a waiver of the right or remedy on any subsequent occasion.
10.04 Choice of Law: This
Agreement shall be governed by and construed in accordance with the laws of the
State of Colorado.
10.05 Invalid Provisions: Any
provision of this Agreement which is prohibited or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof.
10.06 Entire Agreement: This
instrument contains the entire Agreement between the parties. This Agreement,
together with the documents given in connection herewith, comprises the complete
and integrated agreement of the parties on the subject matter hereof and
supersedes all prior agreements, written or oral, on the subject matter
hereof.
10.07 Amendment: Except as
otherwise provided herein, any addendum or modification hereto must be signed by
both parties.
10.08 Effective: This
Agreement becomes effective when it is accepted and executed by an authorized
officer of PTSI and shall be binding upon and inure to the benefit of the Client
and PTSI and their respective successors and assigns, except that the Client
shall not have the right to assign its rights thereunder or any interest therein
without PTSI’s prior written consent.
10.09 Indemnification: Client
agrees to indemnify and hold PTSI harmless from any and all liability, claims
and damages, including attorneys’ fees, costs of suit and interest which PTSI
may incur as a result of the failure of Client to pay withholding taxes due and
payable to any taxing authority.
10.10 Notices hereunder: All
notices and communications hereunder shall be given or made to the parties at
their respective addresses set forth below, or at such other address as the
addressee may hereafter specify for the purpose of written notice to the other
party hereto. Such notices and communications shall be effectively given by PTSI
when and if given in writing and delivered to the address set forth herein,
delivered by e-mail, facsimile or duly deposited in the mails with first-class
postage prepaid.
10.11 Costs and Expenses:
Except as is prohibited by law, the Client agrees to pay on demand all costs and
expenses, including (without limitation) attorneys’ fees, incurred by PTSI in
connection with this Agreement and any other related document or agreement, and
the transactions contemplated hereby, including without limitation all such
costs, expenses and fees incurred in connection with the negotiation, due
diligence, preparation, execution, amendment, administration, performance,
collection and enforcement of the obligations and all such documents and
agreements and the creation, perfection, protection, satisfaction, foreclosure
or enforcement of any security interest granted hereunder, the collection of any
Account or any obligation owed by Client to PTSI.
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10.12 Audit: The Client hereby
agrees to pay PTSI, on demand, audit fees in connection with any audits or
inspections conducted by PTSI of any Collateral or the Client’s operations or
business at the rates established from time to time by PTSI as its audit fees,
together with all actual out-of-pocket costs and expenses incurred in conducting
any such audit or inspection.
10.13 Jurisdiction: The
parties hereby (a) consent to the personal jurisdiction of the state and federal
courts located in the State of Colorado in connection with any controversy
related to this Agreement; (b) waive any argument that venue in any such forum
is not convenient, (c) agree that any litigation initiated by PTSI or the Client
in connection with this Agreement shall be venued in either the State Courts of
the City and County of Denver, Colorado or the United States District Court,
District of Colorado, and (d) agree that a final judgment in any such suit,
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law.
10.14 Waiver of Jury Trial:
THE CLIENT HEREBY IRREVOCABLY
WAIVES ALL RIGHTS TO TRIAL
BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF, BASED ON OR
PERTAINING TO THIS AGREEMENT.
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Executed
and accepted this 6th day
of April, 2009 at Denver, Colorado.
Premier
Trade Solutions, Inc.
By:____________________________
Title:
Drinks
Americas, Inc.
By:_____________________________
Title:
