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BUSINESS LOAN AND SECURITY AGREEMENT
[Agreement/Finance ID # 6314692047 - 0217021700]
This Business Loan and Security Agreement (this “Agreement”) dated February 17, 2017 is between American Express Bank,
FSB (“Lender”) and each of the borrowers listed on Schedule A (each “Borrower” and collectively “Borrowers”).
1. Parties; Definitions. In this Agreement, the words “you”
and “your” refer to Borrowers, jointly and severally. The
words “we”, “us” and “our” refer to Lender and its successors
or assigns, including any “Assignee” as defined in Section 13.
Terms used but not defined herein have the meaning assigned
to them, unless otherwise indicated, in the Card Acceptance
Agreement (as defined below).
2. Effective Date; Term. The term of this Agreement (the
“Term”) begins on the date we accept it at our home office in
the State of Utah by sending you the Loan (the “Effective
Date”), and ends 365 days after the disbursement of the initial
Loan (the “Maturity Date”). You understand and agree that
we are not required to send you the Loan until you have
provided us with all documents and fully met all conditions
required by this Agreement. If there is a delay in your receipt
of the Loan for these or any other reasons, you agree that there
will be no adverse consequence to us. However, if the
principal amount of the Loan, the Loan Fee and all other
amounts due under this Agreement (such sum, the
“Outstanding Balance”) have been paid prior to the Maturity
Date, and you have done everything else you are required to do
under this Agreement, at your election and with 10 days prior
signed notice to us, the Term will end and you will have no
further obligations to us under this Agreement (other than
those obligations that expressly survive the expiration or
termination of this Agreement pursuant to the terms hereof).
3. Loan. Subject to Section 2, we agree to lend to you the
Loan in an aggregate amount equal to the amount set forth in
Section B hereto. We will notify you as provided in this
Agreement of the date of Loan disbursement (the
“Disbursement Date”) and Maturity Date applicable to this
Agreement; you and we agree that the Disbursement Date and
Maturity Date set forth in such notice (the “Maturity Date
Notice”) constitute a part of and are incorporated into this
Agreement.
4. Intentionally Omitted.
5. Use of Loan Proceeds. You represent to us and agree
that the principal amount of the Loan will be used for business
purposes only. Such business purposes would (by way of
illustration and not limitation) typically include: (a) buying
merchandise, inventory or related goods you will rent or sell to
your customers, (b) buying equipment or other goods for use in
your business, (c) training or other services needed by your
business, and/or (d) making improvements to your business
location (but not to buy real estate). You represent and warrant
that you will not use any portion of the Loan to repay any
outstanding debt or satisfy any obligation to any of our
affiliates, including, without limitation, American Express
Travel Related Services Company, Inc. (“AETRS”).
REGARDLESS OF ANYTHING ELSE STATED IN THIS
AGREEMENT, YOU ACKNOWLEDGE AND AGREE
THAT: (A) YOU WILL USE THE PRINCIPAL AMOUNT
OF THE LOAN (AND THE GOODS OR SERVICES YOU
BUY WITH THE PRINCIPAL AMOUNT) SOLELY FOR
BUSINESS PURPOSES AND NOT FOR CONSUMER,
PERSONAL, FAMILY OR HOUSEHOLD PURPOSES; (B)
YOU WILL NOT USE THE PRINCIPAL AMOUNT OF THE
LOAN TO FUND DIVIDENDS OR DISTRIBUTIONS TO
YOUR SHAREHOLDERS, PARTNERS, MEMBERS OR
OTHER OWNERS OF AN EQUITY INTEREST IN YOUR
BUSINESS; AND (C) THIS LOAN IS NOT A “CONSUMER
TRANSACTION” AS DEFINED IN THE UNIFORM
COMMERCIAL CODE (“UCC”).
6. Promise to Pay. In exchange for us loaning you the
Loan, you unconditionally promise to pay us the principal
amount of the Loan, the Loan Fee and all other amounts this
Agreement requires you to pay. You agree to make payments
to us in the manner stated in Section 7 of this Agreement. As
part of your agreement to repay us without conditions, you
waive (both as to the original Loan and any renewal,
extension, refinancing or consolidation of the Loan): (a)
protest, demand and presentment: (b) notice of dishonor,
protest or suit; (c) all other notices or requirements necessary
to hold you liable hereunder; and (d) all rights of exemption
under the constitution or laws of any state as to real or personal
property. YOU AGREE THAT YOUR OBLIGATIONS
UNDER THIS AGREEMENT ARE ABSOLUTE AND
UNCONDITIONAL, AND SHALL CONTINUE IN FULL
FORCE AND EFFECT REGARDLESS OF ANY
CIRCUMSTANCE WHATSOEVER, AND THAT SUCH
OBLIGATIONS SHALL NOT BE AFFECTED BY ANY
A. BANKING INFORMATION
Bank name: Bankunited
ABA (Bank Routing) Number 267090594
DDA (Bank Account) Number: XXXXXXXXXXXXXXXX7238
B. PAYMENT INFORMATION
“Loan”: $1,000,000.00
“Repayment Rate”: 6%
C. FEE DISCLOSURE
This Agreement requires Borrowers to pay Lender certain fees and charges. These fees and charges include, but are not
limited to, a Loan Fee equal to 3.5% of the original principal balance of the Loan, as well as those other fees described in
Section 7.3 below.
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COUNTERCLAIM, SET-OFF, RECOUPMENT,
OFFSET, DEFENSE OR OTHER ALLEGED RIGHT
AGAINST US.
7. Method of Repayment.
7.1. Payment through Settlement Amounts. You are
party to an agreement with our affiliate, American Express
Travel Related Services Company, Inc. (“AETRS”), governing
your acceptance of Cards (the “Card Acceptance Agreement”).
You hereby authorize and direct us to contact AETRS and,
notwithstanding anything to the contrary in the Card
Acceptance Agreement, instruct AETRS to remit the amount
equal to the Repayment Rate (as adjusted from time to time in
accordance with this Agreement) of the Settlement Amounts to
us, rather than to disburse such amounts to you until such time
as we have received the entire Outstanding Balance; such
authorization, instruction and direction being coupled with an
interest and irrevocable until all of your obligations hereunder
have been indefeasibly and fully paid and performed. You
may not revoke this authorization and instruction without our
prior signed consent. You waive any claim for damages you
may have against us, AETRS, or our affiliates in connection
with actions taken based on such instructions. Amounts
received in repayment of the Loan are not subject to a refund.
The initial Repayment Rate is set forth in Section B of this
Agreement. For purposes hereof, “Settlement Amounts” shall
mean, for any applicable period, all proceeds, settlements,
payments or other amounts with respect to all forms of
American Express bank cards and other American Express
payment devices used by you for electronic transactions
(whether or not such devices were in use when this Agreement
was made), including credit, debit, charge, smart, electronic
benefit transfer, contactless and RFID-enabled cards (“Cards”)
that you receive. Amounts received in repayment of the Loan
are not subject to a refund. YOU ACKNOWLEDGE AND
AGREE THAT WE ARE MAKING YOU A LOAN AND
NOT AN OUTRIGHT PURCHASE OR DISCOUNTING
OF RECEIVABLES. YOU MUST PAY US ALL
AMOUNTS DUE UNDER THIS AGREEMENT
WHETHER OR NOT THE SETTLEMENT AMOUNTS
ARE ENOUGH TO PAY THOSE AMOUNTS.
7.2. Scheduled Payments; Due Date; Repayment Rate
Adjustment.
(a) We will apply the amounts received from AETRS
pursuant to Section 7.1 of this Agreement (“Loan
Remittances”) to the amounts you owe us. We will maintain,
in accordance with our customary procedures, a loan account
in your name in which we will record the date and amount of
the Loan and the date and amount of each payment in respect
of the Loan (including all Loan Remittances); provided,
however, our failure to record the date and amount of the Loan
shall not adversely affect us. Each month, we shall make
available to you a statement showing the accounting for the
Loan made, and the payments made or credited in respect
thereof. The monthly statements shall be deemed correct and
binding upon you in the absence of manifest error and shall
constitute an account stated between us and you unless we
receive a signed statement of your specific exceptions thereto
within thirty (30) days after such statement is received by you.
Our records with respect to the loan account shall be
conclusive evidence absent manifest error of the amount of the
Loan and other charges thereto and of payments applicable
thereto.
(b) Unless accelerated pursuant to Section 9.2, the
Loan, together with the Loan Fees as described in Section 7.3,
is due and payable in accordance with the cumulative payment
schedule (the “Payment Schedule”) that will be included in the
Maturity Date Notice. The Payment Schedule contained in the
Maturity Date Notice constitutes a part of and is incorporated
into this Agreement. An estimated cumulative payment
schedule is attached hereto as Schedule B. For the avoidance
of doubt, the cumulative payment schedule set forth in
Schedule B is only an estimate; you are obligated to repay the
Loan, together with the Loan Fees, in accordance with the
Payment Schedule that will be provided to you in the Maturity
Date Notice. In any month that the minimum cumulative
payment specified in the Payment Schedule (the “Minimum
Payment”) for a given date is not met, the difference between
the Minimum Payment and the actual Loan Remittances
received as of such date will be deemed to be past due. In the
event that any portion of the Outstanding Balance become past
due, Lender may increase the Repayment Rate to 100% until
no portion of the Outstanding Balance is past due.
(c) Upon the Maturity Date, the Outstanding Balance
shall be immediately due and payable in full. Such payment
shall be made promptly by a payment method of which we will
notify you. Thereafter, until the Outstanding Balance is paid
in full, the Repayment Rate will be increased to 100%, and
your obligations under this Agreement shall continue in full
force and effect.
(d) After the occurrence and during the continuance of
an Event of Default with respect to any Borrower, we also will
have the right, but not the obligation, in our sole credit
judgment to increase the Repayment Rate, temporarily or
permanently. OUR RIGHTS UNDER THIS SECTION
7.2(d) ARE IN ADDITION TO, AND DO NOT LIMIT IN
ANY WAY, OUR RIGHTS AND REMEDIES UNDER
SECTION 9.2.
(e) It is possible to calculate an implicit interest rate
based upon the principal amount of the Loan advanced, the
date and amount of payments received with respect to the Loan
and the Loan Fee or any other fees paid (the “Implicit Rate”).
However, this Agreement does not have an interest rate and
you agree that, other than as provided in Section 7.3 or Section
15, we have no obligation to adjust either the Repayment Rate
or amount of the Loan Fee if your volume of Loan
Remittances is greater or less than what either of us anticipated
at the time we made this Agreement. You also acknowledge
and agree that, if your volume of Loan Remittances is greater
than what either of us anticipated at the time we made this
Agreement or you incur fees, the effective interest rate under
this Agreement may be higher than the Implicit Rate.
7.3. Fees. Subject to Section 15, upon the
Disbursement Date, you agree we shall have fully earned a
non-refundable fee (the “Loan Fee”) equal to 3.5% of the
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original principal balance of the Loan. The Loan Fee will be
payable upon the earliest to occur of (a) the date upon which
the Loan is repaid in full, (b) the Maturity Date or (c) the date
the amounts due under this Agreement are accelerated pursuant
to Section 9.2. Notwithstanding the foregoing, provided that
no Event of Default has occurred, if the Outstanding Balance
has been repaid in full within (i) 180 days of the Disbursement
Date, you will receive a rebate equal to 25% of the Loan Fee;
or (ii) 270 days of the Disbursement Date, you will receive a
rebate equal to 10% of the Loan Fee.
7.4. Intentionally Omitted.
7.5. Contact With Processors. You hereby (a)
authorize us to contact any of your past, present or future
processors to obtain any information that we deem necessary
or appropriate regarding any of your or their transactions with
such processors, and (b) authorize and direct such processors
to provide us with all such information.
7.6. Designated Account. The “Designated Account” is
the bank account into which you receive Settlement Amounts
under your Card Acceptance Agreement. You represent,
warrant and agree that, as of the Effective Date, the bank
account listed in Section A of this Agreement (a) was
established for business purposes and continues to be used for
business purposes and (b) is the Designated Account. If we
transfer to the Designated Account, any other account held by
you, or any account held by one of your owners, shareholders,
partners, members, principals, officers, directors or employees
(each, a “Principal”), any funds that should have been applied
to the amounts due to us under this Agreement, or if you
otherwise have monies deposited in your or any Principal’s
accounts that otherwise should have been applied to amounts
due to us under this Agreement, you immediately shall pay or
cause the Principal to pay to us all such funds.
8. Prepayment. At any time, you may prepay, in full or in
part, your obligations under this Agreement. You may prepay
such obligation in full by paying us an amount equal to the
Outstanding Balance.
9. Default; Remedies.
9.1. Events of Default. Each of the following shall
constitute an “Event of Default” under this Agreement: (a)
with respect to your business, as of any measuring date, the
total sales for any rolling 12 month period ending during the
Term is less than or equal to 50% of the total sales for the prior
12 month period; (b) your Settlement Amounts for any month
during the Term is less than or equal to 50% of your
Settlement Amounts for such month during the immediately
preceding year; (c) your Settlement Amounts for any rolling
three month period ending during the Term is less than or
equal to 50% of your Settlement Amounts for such rolling
three month period during the immediately preceding year; (d)
we do not receive any Settlement Amounts for 7 consecutive
days; (e) any amount due and owing to us under this
Agreement is sixty (60) days past due; (f) your American
Express Merchant Account or Merchant Number or the
American Express Merchant Account or Merchant Number of
any of your affiliates is cancelled; (g) you fail to pay any
amount you owe us under this Agreement, including without
limitation when an ACH debit for any such amount is rejected
or a check is returned; (h) a Lien (as defined below) attaches to
the Settlement Amounts; (i) you utilize the services of a
processor, other than as set forth in Section 12.4(c), to process
all or a portion of your Settlement Amounts; (j) any warranty,
representation or statement made or furnished to us by you or
any Signing Principal or on your or any Signing Principal’s
behalf under this Agreement is or becomes false or misleading
in any material respect; (k) this Agreement ceases to be in full
force and effect at any time and for any reason; (l) you: (i)
legally dissolve, are adjudicated insolvent or cease to pay your
debts as they mature, (ii) make a general assignment for the
benefit of or enter into an arrangement with creditors, (iii)
apply for or consent to the appointment of a receiver, trustee or
liquidator of you or a substantial part of your property, (iv)
become subject to, voluntarily or involuntarily, a petition in
bankruptcy or under any similar law; (v) take any step to
effectuate any of the foregoing (i)-(iv); or (vi) if an individual,
die or become legally incompetent; (m) you fail to perform or
comply with any other term, provision, condition, covenant or
agreement contained in this Agreement or any other
documentation related to this Agreement; (n) you default under
any other agreement with us, any Assignee or any affiliate of
either us or any Assignee (including, without limitation, the
Card Acceptance Agreement), or under any agreement with
any third party material to your business or providing for the
lease of real or personal property or the repayment of money
borrowed; (o) we reasonably deem ourselves insecure with
respect to your performance hereunder; (p) your credit rating
or credit score is downgraded or a risk alert is generated, in
any case, by any third party credit reporting service (e.g.,
Experian, D&B or Equifax) or us; (q) there is a positive debit
balance on your American Express Merchant Account or the
American Express Merchant Account of any of your affiliates
with respect to any Card; and (r) any of the preceding events
occurs with respect to any guarantor, endorser, surety, or
accommodation party of any of your obligations hereunder.
For the avoidance of doubt, if an Event of Default occurs with
respect to a single Borrower, the parties agree and
acknowledge that there shall be deemed to be an Event of
Default by all of the Borrowers hereunder.
9.2. Remedies. Upon the occurrence of an Event of
Default under Section 9.1(l) (excluding sub-clause (v) thereof),
regardless of whether such Event of Default occurs with
respect to one or more Borrowers, the unpaid balance of the
Loan, the Loan Fee and all other amounts you owe us under
this Agreement will be immediately due and payable. Upon
the occurrence of any other Event of Default, regardless of
whether such Event of Default occurs with respect to one or
more Borrowers, we shall have the right, but not the
obligation, to declare the Outstanding Balance to be
immediately due and payable, and increase the Repayment
Rate. In addition, we shall have and may exercise any and all
other rights and remedies available to us as a secured party at
law, in equity, or otherwise. Except as may be prohibited by
applicable law, all of our rights and remedies, whether
evidenced by this Agreement or by any other record, shall be
cumulative and may be exercised singularly or concurrently,
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against any or all Borrowers at our election. Election by us to
pursue any remedy will not constitute a waiver of our rights to
pursue other remedies. No forbearance or delay by us shall be
deemed to waive any of our rights or remedies or create a
course of dealing between the parties. Any election by us to
make expenditures or to take action to perform one or more of
your obligations under this Agreement, after your failure to
perform, shall not affect our right to declare an Event of
Default and exercise our remedies.
9.3. Authorization to Withdraw from Designated
Accounts for Amounts Past Due and/or Upon Event of
Default. You and each Principal that has executed this
Agreement (each, a “Signing Principal”) hereby irrevocably
authorize us (such authorization being coupled with an
interest) to debit or otherwise withdraw (via the ACH system,
electronic checks, wires or otherwise) any funds we are
entitled to receive under this Agreement for amounts past due
and/or upon the occurrence of an Event of Default from any
deposit accounts owned or controlled by you, including
without limitation, the Designated Account. You represent,
warrant and agree that, as of the date of and during the Term of
this Agreement, each such deposit account was established for
business purposes and continues to be used for business
purposes. This authorization may not be revoked until we have
received the Outstanding Balance that is past due, or, as
applicable, the entire principal amount of the Loans, the Loan
Fees and any other amounts owed to us under this Agreement
upon an Event of Default. You and each Signing Principal
acknowledge and agree that we may issue pre-notifications to
your bank(s) with respect to such debits, withdrawals and other
transactions. Further, you and each Signing Principal agree
that you shall provide such information and execute such
documents to enable us to make such debits as may be
reasonably requested by the financial institution(s) at which
such deposit accounts are held. Within two (2) business days
of any request by us, you shall provide, or cause the applicable
financial institutions to provide, us with records and/or other
information regarding the Designated Account and any other
such deposit accounts owned or controlled by you. You and
each Signing Principal hereby authorize and direct the
applicable financial institutions to provide us with all such
information at the Borrowers’ expense.
10. Additional Repayment Terms.
10.1. Other Payment Methods. You may make
payments to us in addition to Loan Remittances to satisfy your
obligations under this Agreement. All such payments must be
made in immediately available funds and in U.S. Dollars paid
via a payment method of which we will notify you. Any
payments sent by mail or overnight courier must be addressed
to Lender at such address as we may provide to you from time
to time. You acknowledge and agree that payments sent to any
other address may not be timely processed or credited. Any
payments made under this section shall not affect in any way
your obligation to make Loan Remittances. We may accept
late, postdated or partial payments without losing any of our
rights under this Agreement or otherwise. We have no
obligation to hold postdated checks and may process any
postdated check on the date we receive it without being liable
to you for any damages or other claims you may assert, which
you hereby expressly waive. You agree not to mark any
partial payment “paid in full,” “without recourse,” “in full
satisfaction” or with any similar language, and you agree that
any such notations shall have no force or effect and that we
will not lose any of our rights under this Agreement if we
accept any such payments.
10.2. Application of Payments. We generally will apply
payments first to amounts you owe us other than the principal
balance of the Loan and fees (such as for amounts we incur in
performing your obligations pursuant to Section 14), then to
the principal balance of the Loan and to the Loan Fee and any
other fees you owe to us. However, we reserve the right to
apply payments in any order or manner we choose, in our sole
discretion.
10.3. Excess Payments. If we receive payments under
this Agreement that exceed the principal amount of the Loan,
the Loan Fee and any other amounts we are entitled to receive
(such excess being called the “Excess Payment”), we agree to
pay such Excess Payment to you within thirty (30) days after
we discover the overpayment. You acknowledge and agree
that we have no obligation to return to you or attempt to
recover from any third party any funds that we have not
received which would become an Excess Payment upon our
receipt of such funds.
10.4. Indemnification; Limitation of Liability. You
shall indemnify and hold us and our successors, assigns,
officers, directors, affiliates, employees, agents and
representatives (the “Indemnified Parties”) harmless from and
against all losses, damages, claims, liabilities, obligations,
penalties, suits, actions, controversies, or proceedings of any
kind, imposed upon, incurred by, or asserted against any of the
Indemnified Parties, in any way arising from, in connection
with, relating to, or incident to your breach of this Agreement,
including the payment of all costs and expenses of every kind
for the enforcement of our rights and remedies hereunder,
including the costs referenced in Section 12.12. Such amounts
will bear interest at the rate for prejudgment interest prevailing
in your jurisdiction until paid. IN NO EVENT WILL WE BE
LIABLE FOR ANY CLAIMS ASSERTED BY YOU UNDER
ANY THEORY OF LAW, INCLUDING ANY TORT OR
CONTRACT THEORY FOR LOST PROFITS, LOST
REVENUES, LOST BUSINESS OPPORTUNITIES,
EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL,
INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF
WHICH YOU HEREBY EXPRESSLY WAIVE. The
foregoing indemnities are continuing indemnities and shall
survive expiration or termination of this Agreement for any
reason.
11. Grant of Security Interest. Capitalized terms used in
this section without definition which are not defined elsewhere
in this Agreement have the meanings provided in the UCC.
For valuable consideration and to secure the prompt payment
and performance in full of all of any Borrower’s indebtedness,
liabilities and obligations to us, whether direct or indirect, joint
or several, absolute or contingent, due or to become due, now
existing or hereafter arising, whether or not such indebtedness,
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liabilities and obligations relate to the Loan described in this
Agreement and whether or not contemplated by the parties at
the time of the granting of this security interest, regardless of
how they arise or by what agreement or instrument they may
be evidenced or whether evidenced by any agreement or
instrument and including obligations to perform acts and
refrain from taking action as well as obligations to pay money,
including all interest, other fees and expenses, each Borrower
hereby grants to us a security interest in the following
properties, assets and rights (the “Collateral”), wherever
located, whether now owned or hereafter acquired or arising
and howsoever your interest therein may arise or appear
(whether by ownership, lease, security interest, claim, or
otherwise): (a) any and all amounts owing to you now or in
the future from any merchant processor, including the
Settlement Amounts; (b) all Accounts; (c) all Chattel Paper
(including Tangible Chattel Paper and Electronic Chattel
Paper); (d) all Instruments; (e) all Goods, including, without
limitation, Equipment, Inventory, Farm Products, Accessions,
and As Extracted Collateral; (f) all Documents; (g) all General
Intangibles (including, without limitation, Payment Intangibles
and software); (h) all Deposit Accounts; (i) all Letter of Credit
Rights; (j) all Investment Property; (k) all Supporting
Obligations; (1) all trademarks, trade names, service marks,
logos and other sources of business identifiers, and all
registrations, recordings and applications with the U.S. Patent
and Trademark Office (“USPTO”) and all renewals, reissues
and extensions thereof (collectively “IP”); (m) any records and
data relating to any of the foregoing, whether in the form of a
writing, photograph, microfilm, microfiche, or electronic
media, together with all of your right, title and interest in and
to all computer software required to utilize, create, maintain,
and process any such records or data on electronic media; and
(n) any and all proceeds of any of the foregoing, including
insurance proceeds or other proceeds from the sale,
destruction, loss, or other disposition of any of any of the
foregoing, and sums due from a third party who has damaged
or destroyed any of the foregoing or from that party’s insurer,
whether due to judgment, settlement or other process.
Notwithstanding the foregoing, the Collateral does not include
any real estate, motor vehicles, household furniture or fixtures,
and any other goods for personal, family or household use.
You irrevocably authorize us at any time and from time to time
to file: (i) in any filing office in any jurisdiction any initial
financing statements and amendments thereto that indicate the
collateral therein as all of your assets or words of similar
effect, regardless of whether such description is greater in
scope than the collateral pledged to us hereunder; and (ii) such
recordations with the USPTO we deem necessary or desirable
to evidence the security interest in IP described above.
12. Representations, Warranties and Covenants. You and
each Signing Principal represents, warrants and covenants the
following as of the Effective Date and during the Term of this
Agreement:
12.1. Your Business and Operations. You shall: (a)
except as expressly permitted by applicable law, not do or fail
to do anything that could have an adverse effect on the
acceptance or authorization of Cards for the purchase of your
goods and services, including, for example, failing to promptly
repair any inoperable Card processing equipment; and (b) not
sell or otherwise transfer your business without: (i) our
express prior signed consent and (ii) the assumption of all of
your obligations under this Agreement using documentation
reasonably satisfactory to us.
12.2. Financial Indebtedness. Except for the
indebtedness disclosed to us in a signed record delivered to us
prior to the Effective Date, you will not incur any additional
financial indebtedness without our prior signed consent.
12.3. Name, Location, Authority, Etc. (a) You are and
shall remain duly organized, licensed, validly existing and in
good standing under the laws of your state of formation and
are and shall remain duly qualified, licensed and in good
standing in each and every other state in which the failure to
do so could have a material adverse effect on your financial
condition, business or operations; (b) your exact legal name set
forth in Schedule A is true and correct and you do not and shall
not conduct your business under any other name (other than
the D/B/A listed in Schedule A); (c) you shall not change your
place of business, your legal name, entity type or state of
formation; (d) you are authorized and permitted, by law, your
organizational documents, any contracts to which you or any
Signing Principal is a party and otherwise, to execute, deliver
and perform this Agreement and all related documents; (e) you
are subject to no charter, corporate or other legal restriction, or
any judgment, award, decree, order, governmental rule or
regulation or contractual restriction that could have a material
adverse effect on your financial condition, business or
prospects; (f) you are and will continue to be in compliance
with your organizational and formation documents, all
contractual requirements by which you may be bound, and all
applicable federal, state and local laws, statutes, regulations,
ordinances and rules pertaining to the conduct of your
business, including without limitation (i) the regulations of
card associations and payment networks, and (ii) maintaining
any licenses, approvals, consents, registrations and other
authorizations necessary for the conduct of your business; (g)
there is no action, suit, proceeding or investigation pending or,
to your knowledge, threatened against or affecting you or any
of your assets before or by any court or other governmental
authority which, if determined adversely to you, would have a
material adverse effect on your financial condition, business or
prospects or the value of the Collateral; (h) you are not (i)
listed on the U.S. Department of Treasury, Office of Foreign
Assets Control, Specially Designated Nationals and Blocked
Persons List (available at www.treas.gov/ofac), (ii) listed on
the U.S. Department of State’s Terrorism Exclusion List
(available at www.state.gov), or (iii) located in or operating
under license issued by a jurisdiction identified by the U.S.
Department of State as a sponsor of international terrorism, by
the U.S. Secretary of the Treasury as warranting special
measures due to money laundering concerns, or as non-
cooperative with international anti-money laundering
principles or procedures by an intergovernmental group or
organization of which the United States is a member; and (i)
you are current on the lease or mortgage, as applicable, for
each of your business locations.
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12.4. Processing Agreement; Designated Account. You
shall: (a) comply with the Card Acceptance Agreement at all
times; (b) not change your payment option from net pay under
your Card Acceptance Agreement without our consent, (c)
exclusively use AETRS (or the third-party processor approved
by us as of the date of this Agreement) for the processing of all
of your Card transactions and not change such arrangement
during the Term, (d) not open a new account other than the
Designated Account to which Settlement Amounts will be
deposited; (e) not take any action to cause Settlement Amounts
to be settled or delivered to any person other than us; (f) not
revoke or cancel any of the authorizations to debit or otherwise
withdraw from or access the Designated Account or any other
account described in this Agreement; and (g) not add, remove
or otherwise alter the payees associated with your business and
Card Acceptance Agreement without our consent. In addition
to any other remedies available hereunder, in the event that
you change or permit the change of the processor accepted by
us or utilize the services of an additional processor, we shall
have the right, without waiving any of our rights or remedies
and without notice to you or any other party, to notify the new
or additional processor of this Agreement and to direct such
new or additional processor to make payment to us of all or
any portion of the amounts received or held by such processor
for or on your behalf to pay any amounts we are entitled to
receive hereunder. You hereby grant to us an irrevocable
power of attorney, which power of attorney shall be coupled
with an interest, and hereby appoint us and our designees as
your attorney-in-fact, to take any and all actions necessary or
appropriate to direct such new or additional processor to make
payment to us as contemplated by this section.
12.5. Insurance. You shall maintain insurance in such
amounts and against such risks as are consistent with past
practice and shall show proof of such insurance upon our
request.
12.6. Business Information; Reliance; Compliance. All
information (financial and other) provided by or on your or
any Signing Principal’s behalf to us in connection with or
pursuant to this Agreement is true, accurate and complete in all
respects. You and each Signing Principal shall furnish us such
information as we may request from time to time within 14
days of the date of such request, including, without limitation,
tax records, financial statements (including, the most recent
consolidated balance sheets and consolidated statements of
earnings), bank statements and a duly completed and executed
Form-4506T (or its equivalent). You acknowledge and agree
that all information (financial and other) provided by or on
behalf of you and/or any Signing Principal has been relied
upon by us in connection with our decision to advance you the
Loan. Failure to provide requested information is an Event of
Default under Section 9.1(m) and may be a factor in future
decisions to extend credit to you or any other Signing
Principal.
12.7. Transactions Involving Settlement Amounts. You
shall not (a) enter into any arrangement, agreement or
commitment that relates to or involves the pledge or sale of
Settlement Amounts, whether in the form of a purchase of, a
loan against, or the sale or purchase of credits against,
Settlement Amounts with any person or entity other than us; or
(b) allow any security interest, lien, claim, charge, restriction,
condition, option, right, mortgage, equity, pledge or
encumbrance of any kind or nature whatsoever (collectively,
“Liens”) to exist on any Settlement Amounts.
12.8. Inspection of Collateral and Place of Business.
We, or such other third party as we may designate, shall have
the right during your normal business hours and at any other
reasonable time to examine the Collateral where located and
the interior and exterior of any of your places of business.
During an examination of any of your places of business, we
may examine, among other things, whether you (a) have a
place of business that is separate from any personal residence,
(b) are open for business, (c) have sufficient inventory to
conduct your business and (d) have one or more point-of-sale
terminals to process Card transactions. When performing an
examination, we may photograph the interior and exterior of
any your places of business, including any signage, and may
photograph any Principal.
12.9. Solvency. You represent and warrant that you do
not presently intend to close or cease operating your business,
in whole or in part, temporarily or permanently. As of the date
of this Agreement, you are solvent and are not contemplating
any insolvency or bankruptcy proceeding. During the four (4)
months preceding the date of this Agreement, neither you nor
any Principal has discussed with or among your management,
with counsel, or with any other advisor or creditor, any
potential insolvency, bankruptcy, receivership, or assignment
for the benefit of your creditors and no such action or
proceeding has been filed or is pending. Other than as
disclosed to us in a signed record delivered to us, no eviction
or foreclosure is pending or threatened against you.
12.10. Confidentiality; Press Releases. You and each
Signing Principal understand and agree that the terms and
conditions of the products and services we offer, including this
Agreement and any other documentation provided by us
(“Confidential Information”) are our proprietary and
confidential information. Accordingly, unless disclosure is
required by applicable law or court order, you shall not
disclose Confidential Information to any person other than
your attorneys, accountants, financial advisors or employees
who need to know such information for the purpose of
advising you (“Advisors”), provided that such Advisors use
such information solely to advise you and first agree in a
signed record to keep such information confidential. You shall
not issue any press release or make any public announcement
(or both) in respect of this Agreement or us without our prior
signed consent. In the event that you were referred to us by a
third party (a “Referral Source”), you acknowledge and agree
that we may inform such Referral Source and its partners that
we extended you a loan under this Agreement.
12.11. Credit Reports and Information Sharing. You
hereby authorize us to obtain your business credit bureau
reports from time to time for purposes of determining your
eligibility for the loan evidenced by this Agreement,
monitoring your status, or for any update, renewal, extension
of credit or other lawful purpose, including collection
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v1APMLA-160601
activities. We may report our credit and transactional
experiences with you and/or any Signing Principal to business
credit bureaus. You and each Signing Principal hereby waive
to the maximum extent permitted by law any claim for
damages against us or any of our affiliates relating to any (a)
investigation undertaken by or on your behalf as permitted by
this Agreement or (b) disclosure of information as permitted
by this Agreement. You also agree that we may release any
such information if we believe it is required to comply with
any governmental or legal process, whether or not such release
is actually required, or when it is necessary or desirable in
connection with a transaction or investigating a loss or
potential loss. If you fail to satisfy the terms of your credit
obligations hereunder, we may submit a negative credit report
to a business credit reporting agency that adversely affects
your credit score or record.
12.12. Collection Costs and Fees. To the extent not
prohibited by applicable law, you shall pay to us any and all
expenses, including collection costs, attorneys’ fees and
expenses, expert fees and expenses, and all other expenses
which may be incurred by us in the prosecution, defense,
settlement and/or other resolution of any claim, demand, action
or proceeding arising out of or relating to this Agreement, the
Collateral or any of our related rights or interests, regardless of
whether you are a party to that action or proceeding or made
aware of the claim or demand before it is resolved. Without
limiting the generality of the foregoing, the expenses you shall
pay to us include counsel fees and expenses incurred in any
bankruptcy or insolvency proceedings and all costs and
expenses (including search fees) incurred or paid by us for the
purpose of administering, protecting or realizing our security
under this Agreement. All amounts described in this section
shall be considered advances to protect our security, and shall
be secured by this Agreement.
12.13. Mutual Benefit and Consideration. You and each
Signing Principal represent and warrants that (i) for purposes
of this transaction, Borrowers are operated as part of a
consolidated business entity and are directly dependent upon
each other for and in connection with their respective business
activities and financial resources; (ii) each Borrower will
receive a direct economic and financial benefit from the Loans
made under this Agreement, and (iii) the incurrence of such
debt is in the best interests of each Borrower.
13. Assignment. Without our prior signed consent, you shall
not pledge, cancel, revoke or assign this Agreement or your
rights hereunder. Any prohibited assignment shall be void. No
consent to an assignment by us shall release you from your
obligations hereunder. We may assign, mortgage, pledge or
otherwise transfer or delegate this Agreement or any of our
rights or obligations hereunder without notifying you or
obtaining your consent. Without limiting the generality of the
foregoing, we may grant a security interest in any and all of
our rights and interests pursuant to this Agreement, including
our rights and interests in and to the Repayment Rate, the
principal amount of the Loan and the Loan Fee, to any party
(each, an “Assignee”), including parties from whom we may
obtain financing, and you agree that such Assignee is entitled
to enforce any and all of our rights, remedies and interests
under this Agreement. Any Assignee shall have all of our
rights, but no liability for any of our obligations under this
Agreement, and you agree that you will not assert against any
Assignee any defense, counterclaim, set-off, recoupment,
offset or other alleged right that you may have against us.
Upon and following receipt of signed notification by an
Assignee to you, you are authorized and directed to remit any
and all amounts then or thereafter payable by you to us directly
to such Assignee, for our account. As between you and any
such Assignee, any remittance sent to us following such
receipt shall not constitute payment unless and until such
payment is actually received by such Assignee.
14. Right to Perform; Further Assurances. You agree to
promptly execute and deliver all further instruments and
documents, and take all further action, that may be necessary
or desirable, or that we may reasonably request, in order to (a)
create and/or maintain the validity, perfection or priority of and
protect any security interest granted hereby, (b) enable us to
exercise and enforce our rights and remedies hereunder with
respect to any Collateral, and (c) evidence or effect your
agreements and obligations under this Agreement. YOU
ACKNOWLEDGE THAT THE FEES WE CHARGE TO
YOU FOR DOCUMENTATION, ORIGINATION, TAX
COMPLIANCE OR ANY OTHER MATTER
ASSOCIATED WITH THIS AGREEMENT MAY
REPRESENT PROFIT TO US IN WHOLE OR IN PART
AND MAY NOT BE MERELY A REIMBURSEMENT
FOR ACTUAL COSTS.
15. Usury Savings Clause. It is the intention of parties
hereto to comply strictly with applicable laws and accordingly,
in no event and upon no contingency shall we ever be entitled
to receive, collect, or apply as interest any interest, fees,
charges or other payments equivalent to interest, in excess of
the maximum rate of interest which we may lawfully charge
under applicable law (the “Maximum Rate”). In the event that
we ever receive, collect, or apply as interest any such excess,
such amount which, but for this provision, would be excessive
interest, shall be applied to the reduction of the principal
balance owed hereunder; and if said principal balance, and all
lawful interest thereon, is paid in full, any remaining excess
shall forthwith be paid to you, or other party lawfully entitled
thereto. In addition, in the event that we determine that as a
result of your volume of Loan Remittances being greater than
what either of us anticipated at the time we made this
Agreement, our charging the full amount of the Loan Fee
would exceed the Maximum Rate, we will give you an early
payment discount so that the Loan Fee does not exceed the
Maximum Rate. In determining whether or not the interest or
fees paid or payable, under any specific contingency, exceeds
the highest rate which we may lawfully charge under
applicable law from time to time in effect, the parties shall, to
the maximum extent permitted under applicable law,
characterize any non-principal payment as a reasonable loan
charge, rather than as interest. Any provision hereof, or of any
other agreement between the parties, that operates to bind,
obligate, or compel you to pay interest in excess of such
Maximum Rate shall be construed to require the payment of
the Maximum Rate only. The provisions of this section shall
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be given precedence over any other provision contained herein
or in any other agreement between the parties that is in conflict
with the provisions of this section.
16. Agent for Borrowers; Dealing with Multiple
Borrowers. Each Borrower hereby irrevocably appoints
[sSTK MIDTOWN, LLC] (“Agent”) as its agent with respect
to this Agreement. Agent is authorized to issue notices and
take the actions contemplated by this agreement on behalf of
each Borrower. Lender shall only be required to comply with
instructions or notices issued by Agent, whether on Agent’s
own behalf or in its capacity as agent for the Borrowers.
Notwithstanding the foregoing, Lender may deal directly with
any Borrower with regard to all matters concerning the rights
and obligations of Lender and Borrowers hereunder. All
actions or inactions of the officers, managers, members and/or
agents of any Borrower with regard to the transactions
contemplated under the Loan Documents shall be deemed to
have been taken, or not taken, as applicable, with full authority
and shall be binding upon all Borrowers hereunder with or
without notice of such action or inaction being provided to
each Borrower hereunder. Each Borrower hereby appoints the
Agent and each other Borrower as its true and lawful attorney-
in-fact, with full right and power, for purposes of exercising all
rights of such person hereunder and under applicable law with
regard to the transactions contemplated under the Loan
Documents. The foregoing is a material inducement to the
agreement of Lender to enter into this Agreement and to
consummate the transactions contemplated hereby.
17. Notices. Except as otherwise provided in this Agreement,
all notices required under this Agreement and other
information concerning this Agreement (“Communications”)
shall be personally delivered or sent by U.S. postal service,
first class mail, postage prepaid or by expedited mail courier
service. In addition, Lender may, in its sole discretion, send
such Communications to Borrower electronically in the
manner described in this Section. Communications sent by
personal delivery, U.S. mail or expedited mail courier will be
sent to Borrower at the address set forth on page one of this
Agreement and any such notice to Lender shall be at the
following address (or to any other address as may be specified
by either party by a notice given as provided herein):
American Express Bank, FSB
c/o: Datamark Inc.
Attn: Merchant Financing Counsel
43 Butterfield Circle
El Paso, TX 79906
Communications may be sent electronically by Lender to
Borrower (i) by transmitting the Communication to the
electronic address provided by the Borrower or to such other
electronic address as Borrower may specify from time to time
in writing, or (ii) by posting the Communication on a website
and sending the Borrower a notice to Borrower’s postal
address or electronic address telling Borrower that the
Communication has been posted, its location, and providing
instructions on how to view it.
Communications shall be effective (i) if mailed, upon the
earlier of receipt or five (5) days after deposit in the U.S.
mail, first class, postage prepaid, or (ii) if hand-delivered, by
courier or otherwise (including telegram, lettergram or
mailgram), when delivered. Communications sent
electronically to Borrower will be effective when the
Communication, or a notice advising of its posting to a
website, is sent to Borrower’s electronic address.
18. Joint and Several Liability. Each Borrower is jointly
and severally liable for the performance of all obligations of all
Borrowers hereunder and payment of all amounts due to Amex
from all Borrowers under this Agreement. All representations,
warranties, covenants, waivers and indemnities set forth in this
Agreement shall be joint and several. Each Borrower’s
obligations to Amex under this Agreement shall continue until
the Outstanding Balance is paid in full.
.
19. JURY TRIAL AND CLASS ACTION WAIVERS.
EACH PARTY HERETO: (a) HEREBY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION
CONTROVERSY OR PROCEEDING OF ANY KIND ON
ANY MATTER ARISING OUT OF, RELATING TO, IN
CONNECTION WITH, OR INCIDENT TO THIS
AGREEMENT OR ANY TRANSACTIONS IT
CONTEMPLATES OR THE ENFORCEMENT HEREOF,
EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY
LAW OR DEEMED BY A COURT OF LAW TO BE
AGAINST PUBLIC POLICY; AND (b) HEREBY
WAIVES ANY RIGHT TO ASSERT ANY CLAIMS
AGAINST ANY OTHER PARTY AS A
REPRESENTATIVE OR MEMBER IN ANY CLASS OR
REPRESENTATIVE ACTION, EXCEPT WHERE SUCH
WAIVER IS PROHIBITED BY LAW AGAINST PUBLIC
POLICY. TO THE EXTENT ANY PARTY IS
PERMITTED BY LAW OR COURT OF LAW TO
PROCEED WITH A CLASS OR REPRESENTATIVE
ACTION AGAINST ANY OTHER PARTY, THE
PARTIES HEREBY AGREE THAT: (i) THE
PREVAILING PARTY SHALL NOT BE ENTITLED TO
RECOVER ATTORNEYS’ FEES OR COSTS
ASSOCIATED WITH PURSUING THE CLASS OR
REPRESENTATIVE ACTION (NOTWITHSTANDING
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. THE PARTIES HERETO ACKNOWLEDGE
THAT EACH MAKES THESE WAIVERS
KNOWINGLY, WILLINGLY AND VOLUNTARILY
AND WITHOUT DURESS, AND ONLY AFTER
EXTENSIVE CONSIDERATION OF THE
RAMIFICATIONS OF THESE WAIVERS WITH THEIR
ATTORNEYS.
20. GOVERNING LAW; JURISDICTION; SERVICE OF
PROCESS. THIS AGREEMENT, INCLUDING BUT
NOT LIMITED TO ALL ISSUES CONCERNING THE
VALIDITY OF THE AGREEMENT AND THE LOAN
TRANSACTION THAT IT CONTEMPLATES, THE
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CONSTRUCTION OF ITS TERMS, AND THE
INTERPRETATION, PERFORMANCE AND
ENFORCEMENT OF THE RIGHTS AND DUTIES OF
US, YOU AND PRINCIPAL(S) (EACH, A “PARTY” AND
COLLECTIVELY, THE “PARTIES”), SHALL BE
GOVERNED BY AND ENFORCED IN ACCORDANCE
WITH FEDERAL LAW AND THE LAWS OF THE
STATE OF UTAH, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS THAT
WOULD REQUIRE THE APPLICATION OF ANY
OTHER LAW. THE PARTIES ACKNOWLEDGE AND
AGREE THAT THIS AGREEMENT IS ENTERED INTO
AND PERFORMED IN THE STATE OF UTAH. You and
Principal(s) further irrevocably and unconditionally consent
and submit to the jurisdiction of any state or federal court
located in the State of Utah, the State of New York and the
State of the principal place of business of the Borrower to
resolve any suit, action, controversy, or proceeding of any kind
between or among the Parties, arising out of or related to this
Agreement. You and Principal(s) hereby agree that any of the
above-named courts shall be a convenient forum for any such
suit, action, controversy, or proceeding of any kind between or
among the Parties, arising out of or related to this Agreement.
You and Principal(s) waive, to the fullest extent permitted by
law, (a) any objection that you or Principal(s) may now or later
have to the laying of venue of any suit, action, controversy, or
proceeding arising out of, relating to, in connection with, or
incident to this Agreement or any of the transactions it
contemplates in any of the above-named courts, (b) any
objection to personal jurisdiction applying in any such court,
and (c) any claim that any such suit, action, controversy or
proceeding brought in any such court has been brought in an
inconvenient forum. You and Principal(s) agree that service of
process in any such suit, action, controversy, or proceeding
may be served on any of them by mailing or delivering a copy
of the process to any of the addresses set forth in this
Agreement or any other address You or Principal(s) has
provided to us. Nothing set forth in this section affects the
right to serve process in any other manner permitted by law.
You and Principal(s) understand and agree that: (i) we are
located in the State of Utah; (ii) we make all credit decisions
from our office in Utah; (iii) the loan hereunder is made in
Utah (that is, no binding contract will be formed until we
receive and accept your signed Agreement in Utah); and (iv)
your payments are not accepted until we receive them in Utah.
21. Facsimiles, Electronic Images, Electronic Signatures,
and Counterparts. This Agreement (or any agreement or
document required by this Agreement, or any amendment to
this Agreement) may be executed in as many counterparts as
necessary or convenient, including both counterparts that are
executed on paper and counterparts that are electronic records
and executed electronically, and each executed counterpart
shall be deemed an original. All such counterparts shall
constitute one and the same agreement. Delivery of a
manually executed paper counterpart of this Agreement (or of
any agreement or document required by this Agreement, or any
amendment to this Agreement) by telecopy or other electronic
imaging means shall be as effective and enforceable as
delivery of such manually executed paper counterpart of this
Agreement.
22. IMPORTANT INFORMATION ABOUT OPENING
A NEW ACCOUNT AT AMERICAN EXPRESS BANK,
FSB. Federal law requires all financial institutions to obtain,
verify, and record information that identifies each person and
entity that opens an account or establishes a relationship with
us, including name, address, date of birth, social security or tax
identification number and other information that will allow us
to verify your and/or its identity. We may also ask you to
provide identifying documents.
23. Setoff. In addition to any rights and remedies of Lender
provided by law, upon the occurrence and during the
continuance of any Event of Default, Lender and any affiliate
of Lender is authorized at any time and from time to time, but
without prior notice to Borrowers (any such notice being
waived by the Borrowers), to the fullest extent permitted by
law, to recoup from, setoff against and apply any and all
deposits at any time held by, funds in the possession of, and
other indebtedness or obligations at any time owing by, Lender
or such affiliate to or for the credit or the account of Borrowers
against any and all obligations owing to Lender hereunder,
now or hereafter existing, irrespective of whether or not
Lender shall have made demand under this Agreement and
although such obligations may be contingent or unmatured or
denominated in a currency different from that of the applicable
deposit, funds or indebtedness.
24. Interpretation; Miscellaneous. The provisions of this
Agreement shall be severable and if any provision shall be
invalid, void or unenforceable in whole or in part for any
reason, the remaining provisions shall remain in full force and
effect. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns (subject
nevertheless to restrictions provided in Section 13). This
Agreement, together with the other agreements and
instruments mentioned herein or executed by you
contemporaneously herewith, constitutes the entire agreement
of the parties and we shall not be charged with any agreement
or representation not contained in a signed record executed by
us as provided herein. All rights and obligations of AETRS,
Lender, our affiliates and the Borrowers concerning Card
acceptance continue to be governed by the terms of the Card
Acceptance Agreement. Absent manifest error, our records
shall be conclusive evidence with respect to the matters
governed by this Agreement (including the total amount of the
Loan Remittances paid to us) but the failure to record any such
amount in such records or otherwise shall not limit or affect
your obligations or our rights hereunder. Whenever terms
such as “include” or “including” are used in herein, they shall
mean “include” or “including,” as the case may be, without
limiting the generality of any description or word preceding
such term. Whenever terms such as “acceptable to us” or “to
our satisfaction” are used or we are granted the contractual
right to choose between alternatives or express our opinion, the
satisfaction, choices and opinions are to be made in our sole
and absolute discretion. The captions or headings herein are
made for convenience and general reference only and shall not
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v1APMLA-160601
be construed to describe, define or limit the scope or intent of
the provisions of such document. As used herein, all
masculine pronouns shall include the feminine or neuter, and
all singular terms the plural forms thereof, and vice versa. Any
exhibits annexed hereto are incorporated herein and made a
part hereof as if contained in the body of this Agreement. All
references to sections shall be deemed to refer to sections of
this Agreement, unless otherwise expressly provided, whether
or not “hereof,” “above,” “below” or like words are used. This
Agreement has been drafted by our counsel as a convenience
to the parties only and shall not, by reason of such action, be
construed against us or any other party. For Agreements for
which the Borrower signs in Florida: Florida documentary
stamp tax required by law has been paid or will be paid
directly to the Florida Department of Revenue. Certificate of
Registration No. 78-8016610860-5.
[remainder of page left blank; signature pages follow]
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v1APMLA-160601
By signing below, I represent that I have read this entire Agreement, received a copy for the Borrower’s records and am authorized
to sign for the Borrower and sign on behalf of myself and the Borrower. I understand that Lender intends to use information about
me personally, including reports on me from consumer reporting agencies, to evaluate the Borrower’s creditworthiness. I hereby
authorize Lender to request reports on me from consumer reporting agencies from time to time. I authorize Lender to inform me
directly about the contents of reports about me that Lender has requested from consumer reporting agencies. Such information
will include the name and address of the agency furnishing the report. I also authorize Lender and its affiliates and subsidiaries to
use and share information collected about me and the Borrower at any time for administrative, marketing and servicing purposes as
permitted by law, including with referral sources and their partners.
By signing below, the Borrower authorizes Lender to verify the information above, agrees to all of the terms of the Agreement and
the offer to enter into the transaction it describes and to be bound by this Agreement.
Borrower: STK MIDTOWN, LLC
By:
Print Name:
Title:
Signature on behalf of myself in my individual capacity and as an authorized signatory of the Borrower.
Borrower: LITTLE WEST 12TH LLC
By:
Print Name:
Title:
Signature on behalf of myself in my individual capacity and as an authorized signatory of the Borrower.
Borrower: STK MIAMI, LLC
By:
Print Name:
Title:
Signature on behalf of myself in my individual capacity and as an authorized signatory of the Borrower.
Borrower: STK ATLANTA, LLC
By:
Print Name:
Title:
Signature on behalf of myself in my individual capacity and as an authorized signatory of the Borrower.
Borrower: STK WESTWOOD, LLC
By:
Print Name:
Title:
Signature on behalf of myself in my individual capacity and as an authorized signatory of the Borrower.
Officer (CEO, CFO, President, VP, etc.)
Jonathan Segal
Jonathan Segal
Officer (CEO, CFO, President, VP, etc.)
Officer (CEO, CFO, President, VP, etc.)
Officer (CEO, CFO, President, VP, etc.)
Jonathan Segal
Jonathan Segal
Jonathan Segal
Officer (CEO, CFO, President, VP, etc.)
Page 12 of 17
v1APMLA-160601
Borrower: STK CHICAGO LLC
By:
Print Name:
Title:
Signature on behalf of myself in my individual capacity and as an authorized signatory of the Borrower.
Borrower: STK ORLANDO LLC
By:
Print Name:
Title:
Signature on behalf of myself in my individual capacity and as an authorized signatory of the Borrower.
Officer (CEO, CFO, President, VP, etc.)
Jonathan Segal
Officer (CEO, CFO, President, VP, etc.)
Jonathan Segal
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v1APMLA-160601
For Lender’s Use Only: This Agreement has been received and accepted by Lender after being signed by Borrowers.
By:
Print Name:
Title:
Page 14 of 17
v1APMLA-160601
SCHEDULE A
Borrowers
A. BORROWER INFORMATION
Business Legal Name: STK MIDTOWN, LLC
D/B/A: STK MIDTOWN State of Incorporation/Organization: NY
Type of entity (check one): sole proprietorship
other
Physical address:1114 AVENUE OF THE AMERICAS ____________________________________________
City: New York___________________________ State: NY __ ____ Zip: _ 10036 ________
Mailing address:__411 W 14TH ST FL 2_________________________________________________________________________
City: ___ New York _____________________________________________ State: NY __ Zip: __10014__________
Date business started (mm/yy): 01/11 Federal ID or SS#: 271593725
Merchant #6319396024 Contact name: Jonathan Segal
Position: Officer (CEO, CFO, President, VP, etc.) Phone: 6466246444 Fax:
E-mail: DGarrecson@togrp.com________________________________________________________________________
Web Site: _________________________________________________________________________________________________
Bank name: Bankunited
ABA (Bank Routing) Number:267090594 __________________
A. BORROWER INFORMATION
Business Legal Name: LITTLE WEST 12TH LLC
D/B/A: LITTLE WEST 12TH State of Incorporation/Organization: DE
Type of entity (check one): sole proprietorship
other
Physical address: 26 Little West 12th St ___________________________________________________
City: ____ New York __________________________State: NY ____ ____ Zip: 10014 _______
Mailing address:__411 W 14TH ST FL 2_________________________________________________________________________
City: ___ New York _____________________________________________ State: NY __ Zip: __10014__________
Date business started (mm/yy): 08/06 Federal ID or SS#: 202872523
Merchant # 6314692039 Contact name: Jonathan Segal
Position: Officer (CEO, CFO, President, VP, etc.) Phone: 6466246444 Fax: 2122559715
E-mail: DGarrecson@togrp.com________________________________________________________________________
Web Site: _________________________________________________________________________________________________
Bank name: Bankunited
ABA (Bank Routing) Number:267090594 ________________
A. BORROWER INFORMATION
Business Legal Name: STK MIAMI, LLC
D/B/A: STK SOUTH BEACH State of Incorporation/Organization: FL
Type of entity (check one): sole proprietorship
other
Physical address:2305 Collins Ave ___________________________________________
City: Miami Beach ______________________________ State: FL____ Zip: 33139 _________
Mailing address:__411 W 14TH ST FL 2_________________________________________________________________________
City: ___ New York _____________________________________________ State: NY __ Zip: __10014__________
Date business started (mm/yy): 09/09 Federal ID or SS#: 261285854
Merchant # 4099771867 Contact name: Jonathan Segal
Position: Officer (CEO, CFO, President, VP, etc.) Phone: 3056046988 Fax: 3056046884
E-mail: DGarrecson@togrp.com________________________________________________________________________
Web Site: _________________________________________________________________________________________________
Bank name: Bankunited
ABA (Bank Routing) Number: 267090594 _______________
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A. BORROWER INFORMATION
Business Legal Name: STK ATLANTA, LLC
D/B/A: STK ATLANTA State of Incorporation/Organization: GA
Type of entity (check one): sole proprietorship
other
Physical address: 1075 Peachtree St NE STE 8_______________________________________________________
City: Atlanta_____________________________________ State: GA____ ____ Zip: 30309_________
Mailing address:__411 W 14TH ST FL 2_________________________________________________________________________
City: ___ New York _____________________________________________ State: NY __ Zip: __10014__________
Date business started (mm/yy): 11/11 Federal ID or SS#: 271714703
Merchant # 4103889036 Contact name: Jonathan Segal
Position: Officer (CEO, CFO, President, VP, etc.) Phone: 6466242400 Fax:
E-mail: DGarrecson@togrp.com________________________________________________________________________
Web Site: _________________________________________________________________________________________________
Bank name: Bankunited
ABA (Bank Routing) Number: 267090594_________________
A. BORROWER INFORMATION
Business Legal Name: STK WESTWOOD, LLC
D/B/A: STK LOS ANGELES State of Incorporation/Organization: CA
Type of entity (check one): sole proprietorship
other
Physical address: 930 Hilgard Ave_____________________________________________________
City: Los Angeles _____________________________________ State: CA____ ____ Zip: 90024________
Mailing address:__411 W 14TH ST FL 2_________________________________________________________________________
City: ___ New York _____________________________________________ State: NY __ Zip: __10014__________
Date business started (mm/yy): 09/14 Federal ID or SS#: 383938065
Merchant # 3040542433 Contact name: Jonathan Segal
Position: Officer (CEO, CFO, President, VP, etc.) Phone: 6466242400 Fax:
E-mail: DGarrecson@togrp.com________________________________________________________________________
Web Site: _________________________________________________________________________________________________
Bank name: Bankunited
ABA (Bank Routing) Number:_026014588_______________
A. BORROWER INFORMATION
Business Legal Name: STK CHICAGO LLC
D/B/A: STK CHICAGO State of Incorporation/Organization: IL
Type of entity (check one): sole proprietorship
other
Physical address: 9 W Kinzie St _______________________________________________________
City: Chicago___________________________________ State: IL____ ____ Zip: 60654_______
Mailing address:__411 W 14TH ST FL 2_________________________________________________________________________
City: ___ New York _____________________________________________ State: NY __ Zip: __10014__________
Date business started (mm/yy): 05/15 Federal ID or SS#: 352510100
Merchant # 3127730042 Contact name: Jonathan Segal
Position: Officer (CEO, CFO, President, VP, etc.) Phone: 6466242400 Fax: 2122559715
E-mail: DGarrecson@togrp.com________________________________________________________________________
Web Site: _________________________________________________________________________________________________
Bank name: Bankunited
ABA (Bank Routing) Number: 026014588__________________
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A. BORROWER INFORMATION
Business Legal Name: STK ORLANDO LLC
D/B/A: STK ORLANDO State of Incorporation/Organization: FL
Type of entity (check one): sole proprietorship
other
Physical address: 1580 E BUENA VISTA DR_______________________________________________________
City: Orlando____________________________________ State: FL ____ Zip: 32830_________
Mailing address:__411 W 14TH ST FL 2_________________________________________________________________________
City: ___ New York _____________________________________________ State: NY __ Zip: __10014__________
Date business started (mm/yy): 11/15 Federal ID or SS#: 611735471
Merchant # 2097259345 Contact name: Jonathan Segal
Position: Officer (CEO, CFO, President, VP, etc.) Phone: 6466242400 Fax: 0
E-mail: DGarrecson@togrp.com________________________________________________________________________
Web Site: _________________________________________________________________________________________________
Bank name: Bankunited
ABA (Bank Routing) Number:__ 026014588________________
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v1APMLA-160601
SCHEDULE B
Estimated Cumulative Repayment Schedule