CREDIT CARD RECEIVABLES ADVANCE AGREEMENT
EXHIBIT 10.55
This Credit Card Receivables Advance Agreement (the “Agreement”) is made as of January 12,
2007, between CREDIT CASH, LLC, a Delaware limited liability company with its principal place of
business located at 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000 (the
“Lender”), and ROADHOUSE GRILL, INC., a Florida corporation with its principal place of
business located at 0000-X Xxxxxxx Xxxxx, Xxxxxxx Xxxxx, XX 00000 (the “Merchant”).
Preliminary Statements
(a) The Merchant has requested that the Lender periodically make Advances (as defined below)
to the Merchant. Each such Advance is to be secured by a security interest in favor of the Lender
in, among other property, the Collateral, including but not limited to all of the Merchant’s
existing and future credit card receivables and other rights to payment arising out of the
Merchant’s acceptance or other use of any credit or charge card (collectively, “Credit Card
Receivables”).
(b) Each Advance is to be evidenced by a separate Advance Schedule (as defined below), which
is to set forth the key economic terms applicable to the Advance. Each Advance Schedule is to be
issued pursuant to and is to be subject to all terms and conditions set forth in this Agreement; it
being understood that this Agreement is to act as a master agreement for all Advances and Advance
Schedules, if any, outstanding at any time.
(c) The Merchant has agreed to cause the Processor (as defined below) to electronically remit
the Merchant’s collected Credit Card Receivables to the Collection Account (as defined below).
(d) The Lender and the Merchant now desire to enter into this Agreement to memorialize their
understanding regarding the Advances and the parties’ respective rights and obligations relating
thereto.
NOW, THEREFORE, the parties agree as follows:
1. Advances and Advance Schedules.
(a) Advances. The Lender may, in the exercise of its sole and absolute
discretion, periodically advance monies to or for the benefit of the Merchant. Each such
advance is referred to in herein as an “Advance,” and all such advances are
collectively referred to herein as “Advances.”
(b) Advance Schedules. If the Lender elects to make an Advance to the
Merchant, the Merchant agrees to execute and deliver to the Lender an advance schedule in
substantially the form of Exhibit A attached hereto (each, an “Advance
Schedule”). Each Advance Schedule shall be subject to all terms and conditions set
forth in this Agreement and shall set forth, in addition to any other matters set forth
therein, the following:
(i) the “Advance Amount,” which shall be
the amount of funds agreed to by the Lender and the Merchant in the
Advance Schedule which the Lender is to advance to or for the benefit
of the Merchant under the Advance Schedule;
(ii) the “Collection Amount,” which shall be
the amount of funds agreed to by the Lender and the Merchant in the
Advance Schedule which the Merchant is to remit or cause to be remitted
to the Lender with respect to the Advance described in the Advance
Schedule (Note: the Collection Amount does not include any
Reimbursable Expenses (as defined below) which the Merchant may owe the
Lender with respect to the related Advance or otherwise);
(iii) the “Collection Date,” which shall be
the date agreed to by the Lender and the Merchant in the Advance
Schedule by which the Merchant is to cause the Collection Amount
described in the Advance Schedule to be remitted in its entirety to the
Lender;
(iv) the “Collection Account,” which shall
be the deposit account into which the Processor is to deposit, via
electronic funds transfer, the Merchant’s collected Credit Card
Receivables; and
(v) the “Collection Account Bank,” which
shall be the bank at which the Collection Account is maintained.
(c) Discretionary Advances. In no event shall the Lender be obligated to make
an Advance to the Merchant; it being understood that any election by the Lender to make an
Advance to the Merchant may be exercised in the Lender’s sole and absolute discretion.
Without limiting the generality the foregoing, the Lender’s election to make an Advance on
one occasion shall not obligate the Lender to make an Advance on another occasion.
Similarly, the absence of an Event of Default shall not obligate the Lender to make an
Advance. Notwithstanding the foregoing, and without limiting any of Lender’s rights
hereunder, upon Merchant’s loan balance being reduced to no more than fifty percent (50%) of
the Advance Amount, and upon Merchant’s request, Lender may, in Lender’s sole business
discretion, “re-load” the Advance Amount and loan additional monies to Merchant upon
substantially the same terms and conditions set forth herein. Merchant understands that any
“re-loads” would be made at the sole business discretion of Lender and be conditioned upon,
among other things, Merchant’s payment history with Lender and Merchant’s financial
condition, as determined by Lender.
(d) One General Obligation; Cross Collateral. All loans and Advances by Lender
to Merchant under this Agreement, any and all Advance Schedules, and under any other Related
Agreements constitute one loan, and all indebtedness and obligations of Merchant to Lender
under this Agreement and the Related Agreements, present and future, constitute one general
obligation secured by the Collateral and security held and to be held by Lender hereunder
and by virtue of all other Related Agreements between Merchant (and all guarantors) and
Lender now and hereafter existing. It is distinctly understood and agreed that all of the
rights of Lender contained in this Agreement shall likewise apply insofar as applicable to
any modification of or supplement to this Agreement, the Related Agreements and to any other
agreements, present and future, between Lender and Merchant.
2. Repayment of Advances.
(a) Processor to Remit Collections to Collection Account. The Merchant
represents and warrants to the Lender that all of the Merchant’s Credit Card Receivables are
or will be processed by CHASE ALLIANCE PARTNERS, L.P. (together with any subsequent
successors or assigns, the “Processor”). The Merchant agrees to execute and deliver
to the Lender, and to
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cause the Processor to execute and deliver to the Lender, a payment instruction agreement in
form and substance satisfactory to Lender (the “Payment Instruction Agreement”).
The Payment Instruction Agreement is to provide that (i) the Processor is to periodically
remit, via electronic funds transfer, to the Collection Account all of the Merchant’s Credit
Card Receivables collected by the Processor (net of any discounts, fees and/or similar
amounts payable to the Processor by the Merchant which the Processor is entitled to deduct
from the proceeds of the Credit Card Receivables pursuant to the terms of the Processor
Agreement (as defined below) and net of any charge-backs, offsets and/or other amounts which
the Processor is entitled to deduct from the proceeds of the Merchant’s Credit Card
Receivables pursuant to the terms of the Processor Agreement), and (ii) the Processor must
continuing transferring such funds until such time as the Lender gives the Processor written
notice that (A) the Lender has received all Collection Amounts for all Advances then
outstanding, and (B) there are no Reimbursable Expenses (each as defined below) or other
fees or charges then outstanding. If requested by the Merchant in writing, the Lender
agrees to give the foregoing notice to the Processor if the conditions described in the
preceding clauses (A) and (B) have each been satisfied.
(b) Collection Account Bank to Remit Collections to Lender; Lender to Remit
Portion to Merchant. The Merchant agrees to execute and deliver a control
agreement or similar agreement among the Merchant, the Lender and the Collection
Account Bank (the “Control Agreement”) whereby, among other things, the
Lender shall be deemed to have “control” of the Collection Account and all funds at
any time deposited therein for purposes of UCC § 9-104(a)(2) or (3), as the Lender
so elects. The Control Agreement also is to provide that the Collection Account
Bank is to periodically remit, via electronic funds transfer, all funds on deposit
in the Collection Account to a bank account designated by the Lender (the
“Lender Account”). Insofar as funds on deposit in the Collection Account
are remitted to the Lender Account, the Lender agrees to remit to Merchant, each
business day, via electronic funds transfer to a bank account designated by the
Merchant in a writing delivered to the Lender, ninety-seven percent (97%) of all
such funds and Lender shall retain three percent (3%) of all such funds to credit to
the Collection Amount (the “Payment Percentage”) until the cash payments
applied by the Lender equal to the Collection Amount (plus all Reimbursable Expenses
and all other fees and charges due under this Agreement); provided,
however, Merchant agrees that, subject to the provisions below, the Lender
may, in Lender’s reasonable business judgment, increase the Payment Percentage from
time to time to assure timely payment of the Collection Amount by retaining a
greater percentage of the funds received into the Lender Account. Without limiting
any of the rights of the Lender to increase the Payment Percentage upon the
occurrence of an Event of Default or otherwise, the Lender and Merchant hereby agree
that, provided no Event of Default shall have occurred, the Lender will only
exercise its right to increase the Payment Percentage as follows: (i) if the
Merchant’s sales and/or cash receipts from the Processor for any given month are
down by 10% or more from the comparative period one year earlier, the Lender may
exercise its reasonable discretion and increase the Payment Percentage in an amount
sufficient to equal the amount of proceeds the Lender would have received based upon
the Merchant’s sales and/or cash receipts from the Processor in the period one year
earlier (a “True-up”). In connection therewith, Merchant shall deliver to
the Lender, monthly sales reports setting forth, in comparative form, Merchant’s
sales figures during the same month for the previous year, as well as monthly bank
statements for the current period, as well as the comparative period one year
earlier, and such other information with respect to Merchant’s business, operations
and condition (financial and otherwise) as the Lender may from time to time
reasonably request. Such reports shall be certified for accuracy by
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Merchant’s president and/or chief financial officer; (ii) any Collection Amount is
not received by the Lender by the related Collection Date (except as provided in
Section 2(c) below); or (iii) any other Event of Default exists.
(c) Collection Amount Not Received by Collection Date. If the
Collection Amount specified in an Advance Request is not received by the Lender by
the Collection Date specified in the Advance Request, or if any other Event of
Default exists, the Merchant shall immediately pay to the Lender the balance of the
Collection Amount that has not yet been remitted to and received by the Lender.
Notwithstanding the Lender’s right to demand the immediate payment of all
outstanding obligations hereunder on the Collection Date, and notwithstanding
Lender’s right to True-up, as provided above, in the event Merchant’s obligation to
pay the Collection Amount (plus Reimbursable Expenses and all other fees and charges
due hereunder and under the related Agreements) is not satisfied on or before the
Collection Date, and provided Merchant is not otherwise in default of this
Agreement, in lieu of increasing the Payment Percentage, the Lender may, at the
Lender’s option, continue to apply the specified Payment Percentage to the
obligations of the Merchant hereunder. In consideration of the Lender extending the
Collection Date, Merchant hereby understands and agrees that Merchant shall pay to
the Lender an extension fee equal to two percent (2%) of the highest outstanding
balance of Merchant’s obligations to Lender for each 30 day period (or part thereof)
after the Collection Date. The extension fee would automatically be charged to
Merchant’s account on the 1st day after the Collection Date and each 30
days thereafter. Merchant further understands and agrees that if any event or
condition specified in the first sentence of this Section 2(c) exists, the Lender
may, in Lender’s reasonable business discretion, increase the Payment Percentage to
100% and, as such, recover from the Collection Account and/or retain in the Lender
Account all amounts due the Lender under this Agreement and/or any Related
Agreements (as defined below).
3. Security Interest. As security for the prompt performance, observance and payment
in full of all obligations, Merchant hereby grants to the Lender a security interest in, and
continuing lien upon, and right of setoff against, the following property, whether such property or
the Merchant’s right, title or interest therein or thereto is now owned or existing or hereafter
acquired, created or arising, and wherever located: (a) all Accounts (as defined in the UCC),
including, without limitation, all Credit Card Receivables; (b) the Collection Account; (c) all
rights to receive payments from the Processor and all other rights arising out of or otherwise
relating to the Processor Agreement; and (d) all proceeds (as defined in the UCC) of each of the
foregoing (collectively, the “Collateral”). The security interest in the Collateral
secures the payment and performance of all existing and future obligations of any nature whatsoever
of the Merchant to the Lender, including, without limitation, the Merchant’s obligation to pay all
Collection Amounts, fees, and Reimbursable Expenses owing at any time under this Agreement and/or
any Related Agreements; and Merchant hereby authorizes Lender to execute and/or file UCC financing
statements (including amendments) in order to perfect the security interests granted to Lender
under this Agreement, the other Loan Documents or otherwise. The term “Merchant,” as used in this
Section 3, and for purposes of identifying the debtor(s) granting the security interest in this
Section 3, shall mean the Merchant in its own capacity and as agent for each Merchant Affiliate (as
defined below).
4. Control of Collection Account. In addition to the matters described in Section
2(b) above, the Control Agreement is also to provide that the Lender’s security interest in the
Collection Account is to be perfected by control for purposes of UCC §9-104(a)(2).
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5. Representations and Warranties. The Merchant represents and warrants to the Lender
as follows: (a) all of the information provided by the Merchant to the Lender pursuant to this
Agreement or otherwise is true, correct and complete in all respects; (b) the Merchant has full
power and authority to enter into this Agreement and any Related Agreements and to perform its
obligations hereunder and thereunder; (c) if the Merchant is an entity, (i) the Merchant is duly
organized , validly existing and in good standing under the laws of the jurisdiction of its
organization, and (ii) the Merchant has full organizational power and authority to enter into this
Agreement and any Related Agreements and to pay and perform its obligations hereunder and
thereunder; (d) the Merchant is duly qualified to do business in each jurisdiction in which it
conducts its business; (e) this Agreement is the legal and valid obligation of the Merchant,
enforceable against the Merchant in accordance with its terms; (f) the Merchant is solvent, has not
made an assignment for the benefit of creditors or filed in any court, pursuant to any statute of
the United States or any state, a petition for bankruptcy or insolvency, or filed for
reorganization or for the appointment of a receiver or trustee of all or a material portion of its
property, and the Merchant does not have reason to believe any involuntary bankruptcy action or
order will be filed with respect to the Merchant; (g) all amounts are due with respect to all
Credit Card Receivables are due in United States Dollars; (h) any taxes or fees relating to any
Credit Card Receivables or goods or services sold by the Merchant are solely the Merchant’s
responsibility; (i) the historical Credit Card Receivable data provided by the Merchant to the
Lender does not represent sales to any subsidiary, equity holder or other affiliate; (j) the Lender
has a perfected security interest in the Collateral; and (k) the Merchant has provided to the
Lender a copy of all its processor or similar agreements with the Processor (collectively, and as
amended or otherwise modified from time to time, the “Processor Agreement”).
6. Covenants. The Merchant agrees as follows: (a) to conduct its business and use all
Advances in the ordinary course of its business and consistent with its past practices; (b) to
exclusively use the Processor to process all of its charge card, credit card and debit card
transactions which give rise to Credit Card Receivables; (c) not to take any action to discourage
the use of charge cards, credit cards or debit cards or to permit any event to occur which could
have an adverse effect on the use, acceptance or authorization of charge cards, credit cards or
debit cards for the purchase of the Merchant’s services and products; (d) not to change its
arrangements with Processor without obtaining the prior written consent of the Lender; (e) not to
permit any event to occur that could cause a diversion of any of the Merchant’s charge card, credit
card or debit card transactions to another charge, credit or debit card processor or to another
charge, credit or debit card network or association; (f) to comply with all of the terms and
conditions imposed by the Processor and/or any applicable charge, credit or debit card network,
association or bank; (g) to provide the Lender with at least 10 days’ prior written notice of any
event which would cause any of the information provided by the Merchant to the Lender in this
Agreement or otherwise to be untrue, incorrect or incomplete in any respect; (h) not to grant any
lien on or security interest in, or sell, assign transfer, pledge or otherwise dispose of, any
Credit Card Receivables or other Collateral existing or arising on or after the date of this
Agreement; (i) to comply with all laws, rules and regulations applicable to the Merchant; (j) to
permit the Lender and persons designated by the Lender to inspect and copy all books and records
(electronic or otherwise) of the Merchant, including, without limitation, all such books and
records relating to the Collateral; and (k) not to sell, assign, assign, transfer, pledge or
otherwise dispose of all or a substantial portion of its business or assets. In addition, the
Merchant covenants and agrees that each Credit Card Receivable will (x) be based upon a bona fide
sale and delivery of inventory or rendition of services made by the Merchant in the ordinary course
of its business, and (y) represent a payment obligation for goods or services accepted by the
Merchant’s customer and with respect to which such customer is obligated to pay the full amount and
without dispute, claim, offset, defense, deduction, rejection, recoupment, counterclaim or
otherwise.
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7. Credit Investigation; Inspection Rights. The Merchant irrevocably authorizes the
Lender and its agents: (a) to investigate any references or any other information provided by the
Merchant or obtained from or about the Merchant for purposes of this Agreement or any Related
Agreements; (b) to obtain any information from the Processor regarding the Merchant, including,
without limitation, any information relating to the Merchant’s Credit Card Receivables; (c) if the
Lender so elects, to contact and obtain any information from any account debtors or other persons
liable for or involved in the payment, collection, processing or any other aspect of the Merchant’s
Credit Card Receivables and/or the collection or payment thereof.
8. Merchant’s Use of Trade Names; Merchant Affiliates. If the Merchant’s Credit Card
Receivables are payable to the Merchant under one or more trade names, fictitious names, assumed
names or other designations (collectively, “Trade Names”), the Merchant authorizes the
Processor and, to the extent applicable, the Collection Account Bank and the Lender to receive and
retain, to the extent provided herein or in any Related Agreements, all Credit Card Receivables
owing to the Merchant under any Trade Names. Similarly, if any financial information, historical
data or other information provided by the Merchant to the Lender relates to any credit card or
debit card receivables or the like owing or otherwise payable to any affiliates of the Merchant
(each, a “Merchant Affiliate”), (a) the Merchant represents and warrants to the Lender that
each such Merchant Affiliate has authorized the Merchant, as the Merchant Affiliate’s agent, to
take all action described in or contemplated by this Agreement or any Related Agreements with
respect to such Merchant Affiliate’s receivables, including, without limitation, the granting of
the security interest in the Merchant Affiliate’s assets described in Section 3 above, and (b)
unless the context clearly requires otherwise, all references in this Agreement or any Related
Agreements to “Merchant” shall be deemed to refer to the Merchant on its own behalf and as agent
for all Merchant Affiliates.
9. Events of Default. The occurrence of any of the following actions shall constitute
an “Event of Default” under this Agreement: (a) the Merchant fails to pay, perform or
observe any obligation of the Merchant to the Lender, including, without limitation, the Merchant
fails to pay any Collection Amounts, fees or Reimbursable Expenses owing to the Lender, upon demand
by the Lender, which demand shall be made after the Lender first attempts to increase the Payment
Percentage as provided herein and insufficient monies are remitted from the Processor to satisfy
the True-up and/or upon the event of any other default listed below; (b) any representation or
warranty made at any time by the Merchant to the Lender, or any information regarding the Merchant
supplied at any time by the Merchant to the Lender regarding the Merchant or its business, shall
prove to be false or misleading in any material respect; (c) any bankruptcy or other insolvency
action shall be filed by or against the Merchant or any receiver shall be appointed; (d) the
Merchant violates any provisions of the Control Agreement, the Payment Instruction Agreement or the
Processor Agreement, or the Merchant utilizes any person other that the Processor to process any
Credit Card Receivables; (e) any material adverse change occurs in the economic condition or
prospects of the Merchant..
10. Remedies. Upon the occurrence of an Event of Default, the Lender (a) shall be
entitled to exercise all rights and remedies specified in this Agreement and/or any of the Related
Agreements, (b) shall have all rights and remedies of a secured party upon default under the UCC,
and (c) shall be entitled to exercise all other rights available to it at law or in equity. All
rights and remedies of the Lender shall be cumulative, and no failure or delay in exercising any
right or remedy by the Lender shall preclude the Lender from exercising the same or any other right
or remedy.
11. Reimbursable Expenses. The Merchant agrees to reimburse the Lender on demand for
the following (collectively, “Reimbursable Expenses”): (a) all reasonable out-of-pocket
costs and expenses incurred at any time by the Lender in connection with any due diligence and/or
credit investigation of the Merchant; (b) reasonable internal documentation fees and external
attorney’s fees and
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expenses incurred with respect to the negotiation, preparation, consummation, administration
and/or any amendment of this Agreement and any other agreements between the Merchant and the
Lender, including, without limitation, any guaranty of all or any portion of the Merchant’s
obligations to the Lender, which internal fees shall be reasonably determined by the Lender based
upon the time expended in conducting any of the foregoing matters; (c) any review or verification
of the Merchant’s Credit Card Receivables, any public records searches and the filing or other
recordation of any Uniform Commercial Code financing statements or other documents necessary or, in
the Lender’s judgment, desirable to perfect or preserve the security interest and other rights or
remedies granted or available to the Lender under this Agreement; (d) a service charge of $50 for
each federal wire transfer initiated by or on behalf of the Lender to or for the benefit of the
Merchant or at Merchant’s option, $10.00 for each Automated Clearing House (“ACH”) transfer
initiated by or on behalf of the Lender to or for the benefit of the Merchant; (e) a service charge
of $50 for each check issued by the Lender to the Merchant or to a third party for the Merchant’s
account; and (f) so long as any Event of Default is in effect, all costs and expenses incurred by
the Lender to enforce any of its rights and remedies under this Agreement and any Related
Agreements, including, without limitation, all internal and external attorneys’ fees and expenses
and all experts’ and advisors’ fees and expenses incurred by the Lender in connection therewith.
Lender hereby agrees that the aggregate amount of Reimbursable Expenses associated with clauses
(a), (b) and (c) above shall not exceed $5,000.00.
12. Indemnification. The Merchant agrees to indemnify, defend and hold harmless the
Lender and its equity holders, officers, managers, employees and agents from and against any
damages, claims, liabilities, costs, expenses and/or other losses, including, without limitation,
attorney’s fees and court costs, arising out of or otherwise relating in any respect to this
Agreement and/or any Related Agreements, the transactions contemplated hereby and/or the exercise
or enforcement of any rights of the Lender in connection therewith, except insofar as any such
indemnified losses arise out of the gross negligence or willful misconduct of an indemnified party.
This Section shall survive any termination of this Agreement.
13. Power of Attorney. The Merchant irrevocably designates, makes, constitutes and
appoints the Lender, and all persons designated by the Lender, as the Merchant’s true and lawful
attorney and agent-in-fact (such power of attorney and agency being coupled with an interest and
therefore irrevocable until all of the Merchant’s obligations to the Lender have been satisfied),
and the Lender, and any persons designated by the Lender, may, at any time except as otherwise
provided below, and without notice to or the consent of the Merchant and in either the Merchant’s
or the Lender’s name, (a) pay and/or perform any obligations of the Merchant under this Agreement
or any of the Related Agreements, (b) receive payments relating to the Collateral in the
Merchant’s name and endorse the Merchant’s name on any checks, notes, acceptances, drafts, money
orders or any other evidence of payment or proceeds of any Collateral which come into the
possession of the Lender or its agents or under the Lender’s or its agents’ control, and (c) at any
time an Event of Default exists, (i) to the extent the Collateral consists of accounts receivable,
enforce payment of the accounts by legal proceedings or otherwise and generally exercise all of the
Merchant’s rights and remedies with respect to the collection of the accounts, (ii) settle, adjust,
compromise, discharge or release any accounts or other Collateral or any legal proceedings brought
to collect any of the accounts or other Collateral, (iii) sell or otherwise transfer any Collateral
upon such terms, for such amounts and at such time or times as the Lender deems advisable, (iv)
take control, in any manner, of any item of payment or proceeds relating to any Collateral, (v)
prepare, file and sign the Merchant’s name to a proof of claim in bankruptcy or similar document
against any account debtor, (vi) use the information recorded on or contained in any data
processing equipment and computer hardware and software relating to accounts and any other
Collateral and to which the Merchant has access, and (vii) do all other acts and things necessary,
in the Lender’s determination, to fulfill the Merchant’s obligations under this Agreement and the
Related Agreements.
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14. Miscellaneous Definitions. The following terms have the following meanings in
this Agreement (capitalized terms defined in this Section, or elsewhere in this Agreement, in the
singular are to have a corresponding meaning when used in the plural, and vice versa):
(a) “Related Agreements” means the Control Agreement, the Payment Instruction
Agreement, all Advance Schedules and all other agreements to which the Lender and the
Merchant are parties from time to time, as any of the foregoing may be amended or otherwise
modified from time to time.
(b) “UCC” means Article 9 of the Uniform Commercial Code as in effect in the
State of New York from time to time.
15. Miscellaneous.
(a) Entire Agreement; Waiver. This Agreement constitutes the entire agreement
between the parties with regard to the subject matter hereof, and supersedes any prior
agreements or understandings. This Agreement can be changed only by a writing signed by all
parties. The failure or delay of the Lender in exercising any right hereunder will not
constitute a waiver thereof or bar the Lender from exercising any of its rights at any time.
(b) Governing Law; Consent to Forum. This Agreement shall be governed by the
laws of the State of New York without giving effect to any choice of law rules thereof. As
part of the consideration for new value this day received, the Merchant consents to the
jurisdiction of any state court located within New York County, New York or any federal
court located in New York County, New York (collectively, the “Chosen Forum”), and
waives personal service of any and all process upon it and consents that all such service of
process be made by certified or registered mail directed to the Merchant at its most recent
address as reflected in the Lender’s records, and service so made shall be deemed to be
completed upon delivery thereto. The Merchant waives any objection to jurisdiction and
venue of any action instituted against it as provided herein and agrees not to assert any
defense based on lack of jurisdiction or venue. The Merchant further agrees not to assert
against the Lender (except by way of a defense or counterclaim in a proceeding initiated by
the Lender) any claim or other assertion of liability relating to any of this Agreement, any
of the Related Agreements, the Collateral or the Lender’s actions or inactions in respect of
any of the foregoing in any jurisdiction other than the Chosen Forum. Nothing in this
Agreement shall affect the Lender’s right to bring any action or proceeding relating to this
Agreement or the Related Agreements against the Merchant or its properties in courts of
other jurisdictions.
(c) Waiver of Jury Trial; Limitation on Damages. To the fullest extent
permitted by law, and as separately bargained-for consideration to the Lender, the Merchant
waives any right to trial by jury (which the Lender also waives) in any action, suit,
proceeding or counterclaim of any kind arising out of or otherwise relating to any of this
Agreement, the Related Agreements, the Collateral or the Lender’s actions or inactions in
respect of any of the foregoing. To the fullest extent permitted by law, and as separately
bargained-for consideration to the Lender, the Merchant also waives any right it may have at
any time to claim or recover in any litigation or other dispute involving the Lender,
whether the underlying claim or dispute sounds in contract, tort or otherwise, any special,
exemplary, punitive or consequential damages or any damages other than, or in addition to,
actual damages. The Merchant acknowledges that the Lender is relying upon and would not
enter into the transactions described in this Agreement on the terms and conditions set
forth herein but for the Merchant’s waivers and agreements under this Section.
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(d) General Waivers by Merchant. Except as otherwise expressly provided for in
this Agreement, the Merchant waives: (i) presentment, protest, demand for payment, notice of
dishonor demand and protest and notice of presentment, default, notice of nonpayment,
maturity, release, compromise, settlement, extension or renewal of any or all accounts,
contract rights, documents, instruments, chattel paper and guaranties at any time held by
the Lender on which the Merchant may in any way be liable and ratifies and confirms whatever
the Lender may do in this regard; (ii) notice prior to taking possession or control of the
Collateral or any bond or security which might be required by any court prior to allowing
the Lender to exercise any of the Lender’s remedies, including the issuance of an immediate
writ of possession; and (iii) the benefit of all valuation, appraisement and exemption laws.
The Merchant also waives any right of setoff or similar right the Merchant may at any time
have against the Lender as a defense to the payment or performance of the Merchant’s
obligations to the Lender under this Agreement or any of the Related Agreements. If the
Merchant now or hereafter has any claim against the Lender giving rise to any such right of
setoff or similar right, the Merchant agrees not to assert such claim as a defense or right
of setoff with respect to the Merchant’s obligations under this Agreement or any Related
Agreements, and to instead assert any such claim, if the Merchant so elects to assert such
claim, in a separate proceeding against the Lender and not as a part of any proceeding or as
a defense to any claim initiated by the Lender to enforce any of the Lender’s rights under
this Agreement or any of the Related Agreements.
(e) Notices: All notices, requests, demands and other communications under
this Agreement shall be in writing and will be personally served, telecopied or sent by
overnight courier service or United States mail and will be deemed to have been given: (i)
if delivered in person, when delivered; (ii) if delivered by telecopy, on the date of
transmission if transmitted on a business day before 4:00 p.m. New York time or, if not, on
the next succeeding business day; (iii) if delivered by overnight courier, the following
business day after depositing with such courier, properly addressed; or (iv) if by U.S.
Mail, four (4) business days after depositing in the United States mail, with postage
prepaid and properly addressed. All notices, requests and demands are to be given or made
to the respective parties at the addresses set forth herein or at such other addresses as
either party may designate in writing by notice in accordance with the provisions of this
paragraph. All notices to Lender must be addressed to the attention of: Portfolio Manager.
(d) Successors and Assigns. This Agreement binds and benefits each party and
its successors, heirs and assigns, as applicable; provided, however, that the Merchant may
not assign this Agreement or any of its rights or obligations hereunder without obtaining
the prior written consent of the Lender.
(e) Severability; Section Headings. Wherever possible, each provision of this
Agreement and each Related Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Agreement or any Related
Agreement shall be prohibited by or invalid under applicable law, such 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 of such Related
Agreement, as the case may be. Section headings herein and any Related Agreements are for
convenience only and are not controlling.
(f) Counterparts; Fax Signatures. This Agreement and any Related Agreements
may be executed in any number of counterparts (whether facsimile or original), each of which
shall be deemed an original as to the party whose signature appears thereon and all of which
together shall constitute one and the same instrument. An executed facsimile of this
Agreement or any Related Agreement shall be deemed a valid and binding agreement between the
parties hereto or thereto.
9
IN WITNESS WHEREOF, the undersigned have entered into this Agreement by their duly authorized
representatives as of the date first written above.
| CREDIT CASH, LLC |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | President | |||
| ROADHOUSE GRILL, INC. |
||||
| By: | /s/ Xxxxx X. Sabi | |||
| Name: | Xxxxx X. Sabi | |||
| Title: | President | |||
On this ___day of January 2007 before me personally appeared Xxxx Xxxxxx, personally known
to me or proved to me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he/she is the Managing Member and
president of CREDIT CASH, LLC, the company herein described and that he/she executed the same in
his/her capacity as an officer of said company, and that he/she signed the instrument by order of
the members of said company.
| /s/ | ||||
| NOTARY PUBLIC | ||||
STATE OF FLORIDA
|
) | |||||
| ) | ss.: | |||||
COUNTY OF
|
) |
On this ___day of January 2007 before me personally appeared Xxxxx X. Sabi, personally
known to me or proved to me on the basis of satisfactory evidence to be the individual whose name
is subscribed to the within instrument and acknowledged to me that he/she is the President of
ROADHOUSE GRILL, INC., the corporation herein described and that he/she executed the same in
his/her capacity as an officer of said corporation, and that he/she signed the instrument by order
of the board of directors of said corporation.
| /s/ | ||||
| NOTARY PUBLIC | ||||
10
