EXHIBIT 10.67
PARTICIPATION AGREEMENT
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This Participation Agreement, dated this 8 day of March, 2001,
("Agreement") by and between PRESTIGE CAPITAL CORPORATION, a New Jersey
corporation with its principal place of business at 0 Xxxxxxxxx Xxxxx, Xxxx Xxx,
Xxx Xxxxxx 00000 ("PCC), and SELWAY PARTNERS, LLC, a New Jersey limited
liability company with its principal place of business at 000 Xxxxxxx Xxxxx,
Xxxxxx, Xxx Xxxxxx 00000 ("Participant").
WHEREAS, PCC has entered into a Purchase and Sale Agreement (the
"Factoring Contract") with XXXXX-XXXXXXXXXX.XXX CORP. ("Client"), a true copy of
which is annexed hereto as Exhibit 1, pursuant thereto Client has agreed to
assign to PCC from time to time all of Client's right, title and interest in and
to certain identified accounts receivable ("Invoices", "Accounts" or "Accounts
Receivable"); and
WHEREAS, Client's obligations under the Factoring Contract are secured
by, among other things, a security interest in certain of Client's assets as
stated in the Factoring Contract; and
WHEREAS, PCC and Participant desire to enter into transactions whereby
Participant will receive an assignment from PCC of certain identified Invoices
which Client has assigned to PCC pursuant to the terms of the Factoring Contract
which PCC would not have accepted but for this Agreement.
NOW, THEREFORE, in order to facilitate these transactions, PCC and
Participant agree as follows:
1. SALE OF INVOICES: From time to time, PCC may, at its sole and absolute
discretion, propose to assign to Participant one or more of the Invoices
that Client has proposed to sell to PCC, which PCC would otherwise elect
not to purchase. Participant may, at its sole and absolute discretion,
agree to take an assignment on some or all of the Invoices proposed for
sale by PCC in accordance with the terms of this Agreement.
2. PURCHASE AND ASSIGNING PROCEDURES: Invoices proposed for assignment by PCC
to Participant shall be submitted by PCC to Participant. Participant shall
promptly notify PCC whether it will take an assignment of all or some of
the Invoices contained in such submission. Participant hereby acknowledges
that its decision to take such assignment shall be based solely on its own
evaluation and investigation and not upon any statement or representation
of PCC, express or implied. Failure by Participant to notify PCC within two
(2) business days of its decision to take an assignment of such Invoices
shall be deemed a decision not to take an assignment of the Invoices,
identified thereon. To the extent Participant elects to take an assignment
of such Invoices, such Invoice(s) (the "Participant Invoices") shall be
identified on "Schedule A", which shall then become an amendment to, and
incorporated in, this Agreement. Participant shall pay PCC within one (1)
business day of purchase by PCC for the Participant's invoices in the
amount thereof, less the Discount described in the Factoring Agreement, by
wire transfer, delivery of certified bank check or other immediately
available funds as agreed by the parties.
3. ASSIGNMENT OF PCC'S RIGHTS AGAINST CLIENT: Upon the assignment of a
Participant's Invoice to Participant and payment therefor to PCC,
Participant shall be deemed to have purchased and PCC shall be deemed to
have transferred to Participant an equitable and undivided interest in
PCC's interests, rights, security interests under or in connection with the
Factoring Contract and collateral pertaining thereto and under or in
connection with any guarantees of Client's obligations under the Factoring
Contract pro rata based on the percentage of the aggregate amount of the
Participant's Invoices bears to the aggregate Accounts purchased by PCC
under the Factoring Contract.
4. PCC'S REPORTING OBLIGATIONS: PCC shall provide Participant with aging
reports on reasonable demand, but no less frequently than monthly, which
reports shall identify all Participant's Invoices and for each such
Invoice: the face value thereof; the account debtor, and the number of days
payments is outstanding thereon. PCC shall also provide to Participant upon
request copies of all reports received from Client.
5. PAYMENT BY ACCOUNT DEBTORS: Subject to Paragraph 9 hereof, any and all
payments received by PCC on account of Participant's Invoices shall be
deposited by PCC to an account designated to Participant by wire transfer
to Participant within three (3) business days less any rebate to which the
Client may be entitled under the Factoring Contract. Subject to Paragraph 9
hereof, any funds from an account debtor, which is indebted to the
Participant and PCC, shall be distributed on a pro rata basis unless the
account debtor designate the specific invoices being paid. In the event
that any law, regulation, order, decree or judgment now or hereafter in
effect in any manner affects payments made regarding a Participant's
Invoice, including, but not limited to, an order whereby PCC is required to
return or pay a third party monies received on a Participant's Invoice,
Participant shall immediately upon notice pay to PCC the sum so ordered to
be returned or paid.
6. INSPECTION OF PCC'S BOOKS AND RECORDS: As long as Participant remains
unpaid on any of Participant's Invoices, Participant's may inspect and copy
at Participant's expense PCC's books and records as they relate to such
Participant's Invoices at any time upon reasonable notice during normal
business hours.
7. NO GUARANTY OR WARRANTY OF PARTICIPANT'S INVOICES: The participation
described herein is being sold to Participant WITHOUT RECOURSE to PCC.
Participant shall have the sole credit risk with respect thereto.
Participant shall look only to the Participant's Invoice, the account
debtor who received the goods or services provided under the Participants
Invoice, or the Client, if appropriate, to receive its payments hereunder.
PCC does not guarantee payment in any amount on the Participant's Invoices,
and does not warrant the validity of any invoice or any security interest
provided as collateral. Except as provided herein, PCC shall not have, and
does not assume, any liability to Participant for the repayment of
Participant's Invoices and Fees thereon. PCC agrees to use the same level
of care in administering the Participant's Invoices as it does for its own
invoices.
8. COLLECTION ACTIONS: Notwithstanding any other right that Participant may
have under this Agreement or at law, and without constituting an election
of remedies, in the event that Client breaches the Factoring Contract with
respect to a Participant's Invoice, or any other entity fails to comply
with their obligations with respect thereto, and the Participant's Invoice
remains unpaid:
1) Participant, at its election, may authorize PCC to institute an
action, upon two- (2) business days' written notice to PCC;
Participant may institute an action in PCC's name, in order to
collect on the Purchaser's Invoice or Client's other assets.
Participant and not PCC shall be liable for all the costs incurred
in connection therewith (including attorney's fees and expenses)
and may collect sums from the Client under the Factoring Contract
after fully reimbursing PCC for any costs incurred by PCC in
connection therewith.
2) In the event that in any action PCC combines a claim for its own
Invoices along with Participant's Invoices, PCC and Participant
shall share in the costs incurred in the collection effort
(including attorney's fee and expenses), and shall also share the
proceeds therefore, in the proportion that the outstanding balance
due to Participant for the Participant's Invoices bears to the
outstanding balance due to PCC for Client's Invoices, and;
3) Nothing in this Agreement shall prohibit PCC from instituting an
action in its own name against a Client or any other entity at any
time or seeking payment on an Invoice as allowed by contract or
law.
9. PCC'S FEE. As consideration for PCC's services hereunder, PCC shall receive
one percent (1%) of each Participant's Invoice purchased pursuant thereto.
That is, if Participant's fee as stated in the Factoring Contract is ten
percent (10%) of the purchased Invoice, PCC shall receive on percent (1%)
and Participant shall receive nine percent (9%).
10. TERMINATION: This Agreement may be terminated on thirty (30) days' notice
from one party to the other, which termination shall not affect any
Invoices purchased by Participant theretofore.
11. WAIVER OF JURY TRIAL: Participant and PCC each hereby voluntarily,
absolutely, irrevocably and unconditionally waive any right to have a jury
trial in any litigation (whether based in contract, tort or otherwise)
between or among them, arising out of or relating to this Agreement.
12. CHOICE OF LAW: This Agreement shall be governed by, and construed and
enforced in accordance with, the internal laws of the State of New Jersey,
without regard to conflicts of law principles.
13. RECOVERY OF ATTORNEY'S FEES AND EXPENSES: The prevailing party shall be
awarded the costs, expenses and reasonable attorney's fees incurred in any
litigation arising between the parties hereto and in collecting upon any
judgment entered in connection therewith.
14. SERVICE OF PROCESS: Service of process or any notice will be considered
valid if sent by certified U.S. Mail return receipt requested, by
nationally recognized overnight courier, or delivered personally and
addressed to the addresses first stated in this Agreement, unless the
address is changed by written notice in accordance with this Agreement.
15. CONSTRUCTION: Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid to the greatest
extent allowed under applicable law, but if any provision of this Agreement
shall be prohibited by or invalid under applicable law, said provision
shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining
provisions of this Agreement.
16. SUCCESSORS AND ASSIGNS: This Agreement shall bind the parties, their
successors, representatives and assigns, and may not be assigned by either
party without prior written consent.
17. NO WAIVER: No failure or delay on the part of either party in exercising
any power or right under this Agreement shall operate as a waiver thereof,
nor shall any single or partial exercise of such power or right preclude
any further exercise thereof or the exercise of any other power or right.
No waiver by either party of any provision of this Agreement or of any
breach or default shall be effective unless in writing signed by such
party.
18. CONFIDENTIALITY AND NON-COMPETITION: Unless Participant had prior contacts
with an entity before introduction to that entity by PCC or before PCC
provided Participant information regarding an entity, which contact
participant shall reveal to PCC within five (5) days of the time of
introduction or provision of information, Participant shall treat as
confidential and proprietary to PCC the entity so introduced and
information so provided. With regard to such entity and such information
Participant agrees not to directly or indirectly solicit any factoring or
financing business from, or enter into any factoring or financing
relationship with, any such entity during the term of and for at least two
(2) years from the date of termination of this Agreement, unless otherwise
agreed in writing by PCC. Notwithstanding the foregoing, PCC acknowledges
that Participant introduced PCC to Client and that Client is presently
indebted to the Participant and that nothing contained herein shall in any
way modify, alter, limit or prohibit Client's existing financial and
business relationships with the Client, the exercise by Participant of any
rights or remedies that Participant may have with respect thereto or from
engaging in any other transactions of any nature with the Client.
19. ENTIRE AGREEMENT AMENDMENT: This Agreement, including the exhibits hereto,
constitutes the entire agreement between the parties and supersedes all
prior written and verbal communications. This Agreement may not be amended
in any respect without a writing executed by both parties.
20. COUNTERPARTS: This Agreement may be signed in counterparts, each of which
shall be deemed an original, but all which when taken together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and date set forth above.
PARTICIPANT
SELWAY PARTNERS, LLC
By: /s/ XXXX XXXXX
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Name: Xxxx Xxxxx
Title: Chief Operating Officer
PRESTIGE CAPITAL CORPORATION
By:_/s/ XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. Xxxxxxxx
Title: President
