FUTURE RECEIVABLES PURCHASE AGREEMENT

Transcription

1 FUTURE RECEIVABLES PURCHASE AGREEMENT This Future Receivables Purchase Agreement ( Agreement ) is dated as of the Effective Date set forth on the signature page below, and is between Mercury Payment Systems, LLC, a Delaware limited liability company with an office at 10 Burnett Court, Suite 300, Durango, Colorado ( Purchaser ), the business set forth on the signature page below ( Seller ), and each owner of Seller who executes the signature page below (collectively Owners ). Purchaser is in the business of purchasing future credit card receivables and Seller desires to sell its future credit card receivables to Purchaser. Therefore, in consideration of the mutual promises set forth below, the parties agree as follows: I. PURCHASE AND SALE OF FUTURE RECEIVABLES In exchange for payment by Purchaser of the purchase price specified on the signature page below to the entity identified as Payee on the signature page of this Agreement ( Payee ), for the benefit of and on behalf of Seller ( Purchase Price ), Purchaser hereby purchases from Seller and Seller hereby sells to Purchaser all of Seller s right, title and interest in and to the amount specified on the signature page below ( Purchased Amount ) of Seller s future receivables ( Future Receivables ) arising from credit card payments by Seller s customers with credit cards, including but not limited to Visa, MasterCard, American Express, Discover, Diners Club and Carte Blanche cards ( Card Payments ) of the types settled, directly or indirectly, by Seller s Card Payment processor ( Processor ). II. PAYMENT TERMS AND ARRANGEMENTS 2.1 Instructions to Processor Regarding Card Payment Processing. Pursuant to the terms and utilizing the form instruction letter set forth in Exhibit A, Seller irrevocably authorizes and instructs Processor to withhold the specified percentage on the signature page below ( Specified Percentage ) from the Future Receivables and pay such withheld amount to Purchaser on a daily basis until Purchaser receives cash equal to the Purchased Amount, at which time Purchaser will instruct Processor to stop the daily debiting of the Specified Percentage of Future Receivables. Purchaser will not increase the Specified Percentage without Seller s prior written consent. This authorization may be revoked only with the prior written consent of Purchaser or by Purchaser, as set forth below. Seller will indemnify and hold Purchaser harmless from any and all actions by Processor with respect to the processing of Card Payment transactions or remittances to Purchaser as specified above and herein. Seller agrees that this Agreement does not prohibit, limit or alter the rights possessed by Processor pursuant to any payment processing agreements entered into by Seller, a Processor and/or an acquiring bank (each a Processing Agreement ) in any manner whatsoever, including but not limited to the right to withhold, debit, offset or chargeback amounts sent to or to be sent to Seller or funds that may become owing to Processor, or to terminate a Processing Agreement. Upon execution of this Agreement Seller shall execute and deliver to Processor an instruction letter in the form of the attached Exhibit A. 2.2 Instructions to Purchaser Regarding Payment of Purchase Price to Payee. Seller irrevocably authorizes and instructs Purchaser to pay the entire amount of the Purchase Price directly to the Payee for the benefit of and on behalf of Seller. Seller acknowledges and agrees that Purchaser s forwarding to Payee of the Purchase Price is an accommodation to Seller for which Purchaser has no liability, and Purchaser shall not be liable for any loss or damage incurred by any party as a result of complying with this payment instruction. Seller acknowledges that: (a) Purchaser is not an affiliate of Payee, (b) Purchaser has no control over, or liability for, any product or service provided by Payee to Seller, and (c) Purchaser is not a party to any agreement between Seller and Payee, and as such, Purchaser is not responsible for any terms or conditions contained in such agreements, or lack thereof, including but not limited to, violations of federal, state or local laws and/or regulations.

2 2.3 Indemnification. Seller agrees to indemnify, defend, and hold Processor, Purchaser, and their respective employees, members, directors, managers, officers and agents harmless from and against any loss, liability, damage, penalty or expense (including attorneys fees, expert witness fees and costs of defense) suffered or incurred and claimed by a third party, as a direct or indirect result of: (a) any failure by the Seller or any employee, agent, or affiliate of the Seller to comply with the terms of this Agreement; (b) any representation or warranty made by Seller or any employee or agent of Seller to any third person other than as specifically authorized by this Agreement; (c) the fraud or negligence of Seller or its subcontractors, agents or employees; (d) Purchaser s compliance with the payment instructions set forth in Section 2.2 above; or (d) the actions of, or any product or service provided to Seller by, Payee. This indemnification shall survive termination of this Agreement. 2.4 Limitation of Liability. In no event will Processor or Purchaser be liable for any claims asserted by Seller 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, even if advised of the possibility of such damages, each of which is waived by Seller. Purchaser s liability for any loss or damage, direct or indirect, for any cause whatsoever (including those arising out of or related to this Agreement) with respect to claims (whether third party claims, indemnity claims or otherwise) related to this Agreement shall not under any circumstances exceed the Purchase Price. 2.5 Processor Fees. Processor may charge fees for processing Card Payment transactions and providing related services as set forth in the agreements between Seller and Processor ( Processing Fees ) and such Processing Fees and other amounts, fees, charges, fines and penalties will be deducted prior to Processor withholding the Specified Percentage from the Future Receivables. 2.6 No Modifications. Seller will comply with the Processing Agreement and will not modify the Processing Agreement in any manner that could have a material adverse effect upon Purchaser s interests, without Purchaser s prior written consent. Seller will not terminate the Processing Agreement, nor do anything that may cause a Processing Agreement to be suspended or terminated, until the entire Purchased Amount is remitted to Purchaser. Until the Purchased Amount is paid in full to Purchaser, Seller may not terminate or replace any Processor or Processing Agreement without the prior written consent of Purchaser. 2.7 Account. Seller represents and warrants that Seller s sole bank account into which Future Receivables from Processor will be deposited in the settlement account specified on the signature page below ( Settlement Account ). If Processor deposits to any other account of Seller or Owner(s) (defined below) any funds that should have been remitted to Purchaser, pursuant to Section 2.1, or if Seller otherwise has monies deposited in its or Owner(s) s account(s) that otherwise should have been remitted to Purchaser pursuant to Section 2.1 hereof, Seller shall immediately segregate and hold all such funds in express trust for Purchaser s sole and exclusive benefit. Seller and each Owner authorizes Purchaser and Processor to debit such funds directly from any accounts owned by Seller and/or each Owner, including but not limited to the Settlement Account, and agrees to not revoke or cancel such authorizations until such time as Purchaser has received the entire Purchased Amount. Seller agrees that Purchaser may issue a pre-notification to Seller s and/or Owner(s) s bank(s) with respect to such debit transactions. Within twenty-four (24) hours of any request by Purchaser, Seller shall provide, or cause Processor to provide, Purchaser with records and other information regarding Seller s Card Payment transactions, the Settlement Account and any other bank accounts of Seller or Owner(s). 2.8 Processing Trial. After this Agreement has been signed by both Seller and Purchaser but prior to Purchaser s determination as to whether to pay the Purchase Price, Seller agrees to permit Purchaser to instruct Processor to conduct a short processing trial ( Processing Trial ) to ensure that Seller s Card Payment transactions are being correctly processed through Processor and that the cash attributable to the Specified Percentage will be appropriately remitted to Purchaser. Purchaser agrees to make a determination as to whether

3 to purchase the Purchased Amount promptly after the commencement of the Processing Trial. If Purchaser elects to purchase the Purchased Amount, then all of the cash received by Purchaser in connection with the Processing Trial prior to the payment of the Purchase Price shall be applied to reduce the Purchased Amount. Nothing herein shall create an obligation on behalf of Purchaser to purchase any Future Receivables, and Purchaser expressly reserves the right to not purchase the Purchased Amount and not pay the Purchase Price to Seller. If Purchaser decides to not purchase the Purchased Amount and not pay the Purchase Price, this Agreement shall have no further effect and Purchaser shall return to Seller any cash received by Purchaser in connection with the Processing Trial. 2.9 Excess Cash. If the amount of cash remitted to Purchaser pursuant to this Agreement exceeds the Purchased Amount (such excess being the Excess Cash ) by at least $50.00, Purchaser will pay such Excess Cash to Seller within thirty (30) days after receipt thereof by Purchaser. If the Excess Cash is less than $50.00, Purchaser will pay such Excess Cash to Seller within thirty (30) days after its receipt of a written request from Seller, provided such request is made within ninety (90) days of Purchaser s receipt of such Excess Cash. Purchaser has no obligation to take any action (including against a Processor) with respect to any cash being held by a Processor, which will become Excess Cash once it is paid by such Processor to Purchaser, prior to the receipt of such Excess Cash by Purchaser, and that Processor shall have no liability to Seller for any Excess Cash Reliance on Terms. The provisions of this Agreement are agreed to for the benefit of Seller, Owner(s), Purchaser, and Processor and, notwithstanding the fact that the Processor is not a party to this Agreement, it may rely upon the terms of this Agreement and raise them as defenses in any action. III. REPRESENTATIONS, WARRANTIES AND COVENANTS Seller and Owner(s) represent, warrant and covenant the following as of the date of this Agreement and continuing until the Purchased Amount is paid in full to Purchaser. Seller and Owners shall immediately notify Purchaser if any of the following are no longer true or are violated. Any false representation or warranty shall constitute fraud against Purchaser, and Seller consents to entry of judgment admitting to such fraud in an amount to be determined by the applicable court in favor of Purchaser. 3.1 Business Information. All information (financial and other) provided by or on behalf of Seller to Purchaser in connection with the execution of or pursuant to this Agreement is true, accurate and complete in all respects. Seller shall furnish Purchaser such information as Purchaser may request from time to time. 3.2 Reliance on Information. All information (financial and other) provided by or on behalf of Seller has been relied upon by Purchaser in connection with its decision to purchase the Purchased Amount at the Purchase Price. 3.3 Compliance. Seller is in compliance with any and all applicable federal, state and local laws and regulations and rules and regulations of card associations and payment networks. Seller possesses and is in compliance with all permits, licenses, approvals, consents, registrations and other authorizations necessary to own, operate and lease its properties and to conduct the business in which it is presently engaged. 3.4 Authorization. Seller and the person(s) signing this Agreement on behalf of Seller have full power and authority to enter into and perform the obligations under this Agreement and Processing Agreement(s), all of which have been duly authorized by all necessary and proper actions. 3.5 Insurance. Seller shall maintain insurance in such amounts and against such risks as are consistent with past practice and shall show proof of such insurance upon the request of Purchaser.

4 3.6 Change Name or Location. Seller does not and shall not conduct its business under any name other than as disclosed to Purchaser. Seller shall not change its place of business, chief executive office, mailing address, jurisdiction of organization, ownership or other legal structure without the prior written consent of Purchaser, which consent may be withheld for any reason. If Seller breaches this Section 3.6, Purchaser shall be entitled to remedies as set forth in Section Seller Not Indebted to Purchaser. Seller is not a debtor of Purchaser as of the date of this Agreement. It is the intent of the Seller and the Purchaser that the transaction contemplated by this Agreement shall constitute a sale of assets to Purchaser. 3.8 Exclusive Use of Processor. Seller agrees that until the Purchased Amount is paid in full to Purchaser, the services of the Processor are the exclusive means by which Seller processes its Card Payment transactions. Seller shall use its best efforts to maintain business practices that do not endanger its ability to process Card Payment transactions through its Processor. Seller has not been notified by any Processor and is not aware of any fact that would trigger the termination or suspension of an existing Processing Agreement or the creation of a reserve account by a Processor. If Seller receives notice from a Processor that its Processing Agreement may be suspended or terminated or that a reserve account will be created, Seller shall immediately notify Purchaser, and Purchaser shall determine whether such event shall constitute a default of this Agreement. If Seller s action or inaction results in a Processing Agreement being suspended or terminated, Purchaser may immediately debit from the Settlement Account or Seller s operating account the difference between (a) the Purchase Price, and (b) the aggregate amount of Specified Percentage of Future Receivables that Purchaser has received. 3.9 Working Capital Funding. Seller shall not enter into any arrangement, agreement or commitment that relates to or involves Future Receivables, whether in the form of a purchase of, a loan against, or the sale or purchase of credits against, Future Receivables or future Card Payment sales with any party other than Purchaser until Purchaser has received the entire Purchased Amount Unencumbered Future Receivables. Subject to the terms of all Processing Agreements, Seller has good, complete and marketable title to all Future Receivables, free and clear of any and all liabilities, liens, claims, charges, restrictions, conditions, options, rights, mortgages, security interests, equities, pledges and encumbrances of any kind or nature whatsoever or any other rights or interests that may be inconsistent with the transactions contemplated with, or adverse to the interests of, Purchaser Business Purpose. Seller is a valid business in good standing under the laws of the jurisdiction in which it is organized and/or operates, and Seller is entering into this Agreement for business purposes only. Seller shall use the Purchase Price proceeds for the business use disclosed to and agreed upon in advance with Purchaser. Upon request by Purchaser, Seller shall immediately provide to Purchaser proof of the use of the Purchase Price proceeds, in a form satisfactory to Purchaser No Litigation. There is no action, suit or investigation pending or, to Seller s or any Owner s knowledge, threatened against it or any of its assets before any court or government authority which, if determined adversely to it, would have a material adverse effect on it Ordinary Course of Business. Seller shall continue to conduct its business in the ordinary course, as reflected in the bank statements and other documents submitted to Purchaser during the evaluation and underwriting process ( Submitted Statements ). If Seller experiences a period of time where no payments are received from Processor into the Settlement Account, and such period of time is longer than any period reflected on the Submitted Statements (a Non Processing Period or NPP ), such Non Processing Period shall be deemed to be outside of the ordinary course of Seller s business. Upon the occurrence of a Non Processing Period or in anticipation of a Non Processing Period, Seller shall: (a) notify Purchaser in advance of or during such NPP with an explanation and estimate of when such period will end; (b) provide Purchaser with any additional materials or documentation requested, including but not limited to bank statements and financial

5 information; and (c) respond promptly, and in no event longer than 4 business days, to all , telephone or mail inquiries and communications from Purchaser. If Seller fails to respond to , telephone or mail inquiries from Purchaser within 4 business days during a NPP, such failure shall be deemed a default of this Agreement. If Purchaser determines that the NPP is a result of a breach of this Agreement (such as a diversion of payments or split processing) then Purchaser may pursue all legal remedies available to it immediately. IV. ADDITIONAL TERMS 4.1 Sale of Future Receivables. The Purchase Price paid by Purchaser in exchange for the Purchased Amount is a purchase of the Purchased Amount and is not intended to be, nor shall it be construed as, a loan or financial accommodation from Purchaser to Seller. Seller hereby states its intention to transfer an ownership interest in the Purchased Amount. 4.2 No Right to Repurchase. Seller has no right to repurchase the Purchased Amount from Purchaser and Purchaser may not force Seller to repurchase the Purchased Amount. 4.3 Remedies. If any representation or warranty contained in this Agreement is not true, accurate and complete, or in the event of a breach of any of the covenants contained in this Agreement (each an Event of Default ), Purchaser shall be entitled to all remedies available under law, including but not limited to damages equal to the amount by which the Purchased Amount exceeds the amount of cash received from Future Receivables that have previously been delivered by Seller to Purchaser pursuant to this Agreement. At any time after the occurrence of an Event of Default, Purchaser may immediately debit such damages from Seller s bank accounts via the ACH system or wire transfers. The obligations of Owners, including the guarantee in Article V of this Agreement are primary and unconditional and each Owner waives any rights to require Purchaser to first proceed against Seller. 4.4 Financing Statements. To secure performance of Seller under this Agreement or any other agreement between Seller and Purchaser, Seller grants to Purchaser a continuing priority security interest, subject only to security interests of the Processor, in the Purchased Amount of the Future Receivables. Purchaser may file UCC financing statements at any time to perfect the interest created under the UCC upon the sale. The UCC financing statements may state that the sale of the Purchased Amount is intended to be a sale and not an assignment for security. 4.5 Protection of Information. Seller and each person signing this Agreement on behalf of Seller and/or as Owner, in respect of himself or herself personally, authorizes Purchaser to disclose to any third party information concerning Seller s and each Owner s credit standing (including credit bureau reports that Purchaser obtains) and business conduct. Seller and each Owner hereby waives to the maximum extent permitted by law any claim for damages against Purchaser and any of its affiliates or agents and Processor relating to any (a) investigation undertaken by or on behalf of Purchaser as permitted by this Agreement or (b) disclosure of information as permitted by this Agreement. 4.6 Solicitations. Seller and each Owner authorizes Purchaser and its affiliates to communicate with, solicit and/or market to Seller and each Owner via regular mail, telephone, and facsimile in connection with the provision of goods or services by Purchaser, its affiliates or any third party that Purchaser shares, transfers, exchanges, discloses or provides information with or to pursuant to Section 4.5 and will hold Purchaser, its affiliates and such third parties harmless against any and all claims pursuant to the federal CAN-SPAM ACT of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003), the Telephone Consumer Protection Act (TCPA), and any and all other state or federal laws relating to transmission or solicitations by any of the methods described above. 4.7 Confidentiality. The terms and conditions of the products and services offered by Purchaser, including each term of this Agreement and any other documentation (collectively, Confidential Information ) are

6 proprietary and confidential information of Purchaser. Accordingly, unless disclosure is required by law or court order, Seller shall not disclose Confidential Information to any person other than an attorney, accountant, financial advisor or employee of Seller who needs to know such information for the purpose of advising Seller, provided such advisor uses such information solely for the purpose of advising Seller and first agrees in writing to be bound by the terms of this Section Publicity. Seller and each Owner authorize(s) Purchaser to use its, his or her name in a listing of clients and in advertising and marketing materials. Upon Purchaser s request, Seller will display Purchaser advertising decals at Seller s location in the manner directed by Purchaser. 4.9 Seller Covenants. Seller agrees: (a) to conduct its business consistent with past practice; (b) to exclusively use the Processor to process of all of its Card Payment transactions and to not take any action that has the effect of changing its payment processing from the Processor to another processor; (c) not to discourage the use of Card Payment transactions nor permit any event to occur that could have an adverse effect on the acceptance of Card Payments for the purchase of Seller s products and services; (d) not to open a new bank account nor take any action to cause Future Receivables to be settled or delivered to any account other than the Settlement Account; (e) not to sell, dispose, or otherwise transfer its business or assets without the prior written consent of Purchaser and the assumption of all of Seller s obligations under this Agreement pursuant to documentation reasonably satisfactory to Purchaser; and (f) to treat this transaction as a sale of assets for all purposes, including but not limited to tax preparation, financial reporting and accounting purposes. V. GUARANTY Each person executing this Agreement as a Guarantor on the attached signature page jointly and severally guarantees the full and prompt performance by the Seller of all of its obligations under this Agreement. Each of the Guarantors agrees to indemnify Purchaser against and hold it harmless from any Loss attributable to any Indemnified Event (each defined below). Loss means the amount that Purchaser would have received had the default not occurred, plus all costs and expenses (including reasonable attorney fees) incurred by Purchaser due to such default (whether in enforcing its rights under this Agreement, or otherwise). Indemnified Event means: (i) the breach by Seller of its obligations under this Agreement, or (ii) the failure of Seller to make any payments in respect of its Specified Percentage for a period of 3 consecutive business days or more, whether due to lack of sales, insufficiency of funds or for any other reason, in which event the Loss for each day is the amount of the average daily payment made by Processor to Seller for the 12 months immediately preceding such non-payment period, or if Seller has been open for business for less than 12 months, then for the immediately preceding period for which it has been in business. VI. MISCELLANEOUS 6.1 Amendments; Construction. No amendment or waiver of any provision of this Agreement shall be effective unless the same shall be in writing and signed by the parties affected. The headings of the sections and subsections herein are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. For purposes of this Agreement, including shall mean including, without limitation. 6.2 Notices. All notices, requests, demands and other communications shall be in writing and shall be delivered by registered or certified mail, overnight delivery or hand delivery to the respective parties to this Agreement. Notices to Purchaser shall be sent to the following address: 10 Burnett Court, Suite 300, Durango, Colorado Attn: President. Notices to Seller shall be sent to Seller s mailing address listing on the signature page attached to this Agreement. 6.3 Waiver; Remedies. No failure on the part of Purchaser to exercise, and no delay in exercising, any right under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any right under this

7 Agreement preclude any other or further exercise of any other right. The remedies provided in this Agreement are cumulative and not exclusive of any remedies provided by law or equity. 6.4 D/B/A s. Purchaser may be using doing business as or d/b/a names in connection with various matters relating to the transaction between Purchaser and Seller, including the filing of UCC-1 statements and other notices or filings. 6.5 Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of Seller, Owner(s), and Purchaser, and their respective successors and assigns, except that Seller and Owner(s) shall not have the right to assign its rights or obligations or any interest in this Agreement without the prior written consent of Purchaser, which consent may be withheld in Purchaser s sole discretion. Any unauthorized assignment by Seller shall be null and void. Purchaser reserves the right to assign this Agreement or its rights or obligations with or without notice to Seller. In connection with such assignment, Purchaser may disclose all information that Purchaser has relating to Seller or its business. To the extent Purchaser assigns it rights and obligations to a third party, Purchaser shall thereafter be released from such assigned obligations. 6.6 Governing Law. This Agreement shall be governed by, and constructed in accordance with, the internal laws of the State of Colorado without regard to principles of conflicts of law. Seller hereby submits to the exclusive jurisdiction of any Colorado state court sitting in La Plata County, Colorado or federal court sitting in Denver County, Colorado. Seller waives any claim that an action brought in such location is brought in an inconvenient forum, that the venue of the action is improper, or that this Agreement or the transactions of which this Agreement is a part may not be enforced in or by any of the above-named courts. 6.7 Costs. Purchaser shall be entitled to receive from Seller and/or Owner, and Seller and/or Owner shall pay, all reasonable costs associated with a breach by Seller of any term of this Agreement or other obligations or any of the representations and warranties of Seller and its enforcement, including court costs and attorney s fees. 6.8 Term and Survival. This Agreement shall continue in full force and effect until all obligations have been satisfied in full; provided, however, that Sections 2.2, 2.3, 2.4, 4.3, 4.6, 4.7, 4.8, 6.7, 6.12 and 6.13 shall survive indefinitely. 6.9 Severability. In case any one or more of the provisions contained in this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired Reports. An investigative or consumer report may be made by Purchaser or its agent in connection with the Agreement. Seller and each of the Owners authorizes Purchaser, its agents and representatives and any credit reporting agency engaged by Purchaser, to (a) investigate any references given or any other statements or data obtained from or about Seller or any of its Owners for the purpose of this Agreement, and (a) pull credit reports and investigate whether bank accounts have been opened at any time now or for so long as Seller and/or Owner(s) continue to have any obligation owed to Purchaser as a consequence of this Agreement or for Purchaser s ability to determine Seller s eligibility to enter into any future agreement with Purchaser Jury Trial Waiver. The parties waive trial by jury in any court in any suit, action or proceeding on any matter arising in connection with or in any way related to the transactions of which this agreement is a part or its enforcement, except where such waiver is prohibited by law or deemed by a court of law to be against public policy. The parties acknowledge that each makes this waiver knowingly, willingly and voluntarily and without duress, and only after extensive consideration of the ramifications of this waiver with their attorneys Class Action Waiver. The parties waive any right to assert any claims against the 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 either party is permitted by law or court of law to proceed with a class or

8 representative action against the other, the parties agree that: (1) the prevailing party shall not be entitled to recover attorneys fees or costs associated with pursuing the class or representative action (not withstanding any other provision in this agreement); and (2) 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 Force Majeure. No party will be liable to the other for any failure or delay in its performance of this Agreement in accordance with its terms if such failure or delay arises out of causes beyond the control and without the fault or negligence of such party Amendments. No provision of this Agreement may be amended, modified, or waived except by a written agreement signed by Seller and Purchaser Counterparts and Facsimile Signatures. This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which when taken together shall constitute one and the same agreement. Facsimile or signed documents scanned in.pdf or.tiff format shall have the same legal force and effect as an original of such signature and shall be treated as an original document for evidentiary purposes Entire Agreement. This Agreement contains the entire agreement and understanding between Seller, Owners and Purchaser and supersedes all prior agreements and understandings, whether oral or in writing, relating to its subject matter. Seller and Owners each acknowledge and agree that he, she or it is not relying on any representations not specifically embodied in this Agreement. [signatures on following page]

9 FUTURE RECEIVABLES PURCHASE AGREEMENT SIGNATURE PAGE SELLER INFORMATION Seller Legal Name: D/B/A: State of Incorporation/Organization: Type of entity (check one): corporation limited partnership limited liability company limited liability partnership partnership sole proprietorship Physical address: Mailing address: City: City: State: State: Zip: Zip: Date business started (mm/yy): Federal ID or SS#: Contact name: Position: Phone: Fax: Web Site: Bank name: City: State: Bank Routing and Account # of Seller Settlement Account Purchase Price: = $ Purchased Amount: = $ Specified Percentage: = % Name and address of Seller designated Purchase Price Payee: [Legal name] [Street, City, State and Zip] Seller, Purchaser and Owners have executed and delivered this instrument as of the Effective Date. Seller: Its: Owners: Purchaser: Mercury Payment Systems, LLC Its: Payee Acknowledgment and Agreement: Amount to be Paid Payee: $ Payee: Title: The undersigned, being the guarantor(s) of Sellers s obligations under this Agreement, joins in this Agreement pursuant to the terms of Article V set forth above. Guarantors:

10 EXHIBIT A Merchant Authorization Letter, 2011 Global Payments Direct, Inc. 10 Glenlake Parkway, North Tower Atlanta, Georgia RE: (the Company ) Sir or Madam: Global Payments Direct, Inc. ( Processor ) and HSBC Bank USA, National Association ( Bank ) have entered into an arrangement pursuant to which Processor and Bank act as credit card processing service providers to the Company, which includes providing funding of certain credit card sales by the Company and making payments to the Company in respect of such sales as set forth in the service agreement by and between Processor, Bank, and the Company (the Merchant Agreement ). Please be advised that the Company has entered or is about to enter into arrangements with Mercury Payment Systems, LLC (the Issuer ), pursuant to which Issuer may from time to time take an interest in future credit card receivables due to Company under the Merchant Agreement, which may be secured by, among other things, the Company's right, title and interest in and to all present and future accounts, inventory, general intangibles, certain documents, instruments, chattel paper, deposit, other bank accounts, and proceeds of the foregoing, including certain amounts payable by Processor or Bank to the Company pursuant to the Merchant Agreement, subject to Processor s and/or Bank's security interest set forth in the Merchant Agreement and subject to all rights of Processor and Bank arising out of the Merchant Agreement or under state or federal law or otherwise. Issuer and Company hereby represent and warrant to Processor and Bank that (a) Issuer and Company have both duly executed an agreement for Issuer s taking of an interest in future credit card receivables due to Company under the Merchant Agreement and (b) that the transactions described in the referenced receivables agreement between Issuer and Company do not violate any applicable state or federal law or card association rule or regulation. Issuer understands that its rights in certain amounts payable or paid by Processor or Bank pursuant to the Merchant Agreement are subject and subordinate to the discounts, fees, reserves, chargebacks and all other amounts due from the Company to Processor and Bank. Notwithstanding anything to the contrary contained in the Merchant Agreement or any prior instructions to Processor or Bank, unless and until Processor receives written instructions from Issuer and Company to the contrary, effective as of the date of this letter, % of amounts payable by Processor or Bank to the Company pursuant to the Merchant Agreement (the Re-Payment ) shall be withheld by Processor and paid to Issuer on a schedule to be agreed upon by Issuer and Processor and pursuant to the payment instructions set forth here as authorized by Company and by Issuer: Account Information for Deposit of Re-Payment: JP Morgan Chase, Routing # xxxx1017, Account # xxxxx3642 As of the date hereof, Issuer and Company have designated the percentage referred to above as the amount due for the Re- Payment contemplated herein, provided that such percentage may be changed upon written notice by Issuer and Company to Processor as set forth herein. Any modified instructions with respect to the disposition of the Re-Payment must be joint written instructions duly executed by both the Issuer and Company, must include the modified account information and must be received by Processor in advance of the desired effective date of the modified instructions. Issuer and the Company each agree, jointly and severally, to indemnify and hold harmless Bank and Processor against (a) any third party claim or action, of whatever nature, brought against Bank and/or Processor and (b) any loss, cost or expense, of whatever nature, sustained or which may be sustained by Bank and/or Processor that arises from any action taken by Bank or Processor in accordance with the terms of this letter agreement or that otherwise arise from or are related

11 or connected to the arrangement between Issuer and Company described herein. Issuer and Company acknowledge and agree that the agreement of Processor and Bank to provide funding efforts described herein is an accommodation to Issuer and Company for which neither Processor nor Bank shall have any liability. All other amounts payable to Company by Processor or Bank under the Merchant Agreement that are in excess of the Re- Payment shall be paid by Processor to Company s settlement account as designated in its Merchant Agreement, subject to all of the terms of the Merchant Agreement. The parties hereto acknowledge that Processor may at any time begin deducting the fees, discounts, and other amounts due Processor and Bank under the Merchant Agreement on a daily basis. Processor and Company hereby confirm and agree as follows: (i) Processor acknowledges that Issuer and Company have entered an agreement related to the receivables as described herein and consents to the funding arrangement described herein and authorized by the Company and Issuer subject and subordinate to any and all of the rights of Processor and Bank under the Merchant Agreement, of whatever nature, including rights to set-off or charge against amounts payable or paid by Processor or Bank to the Company any and all fees, chargebacks, discounts, reserve accounts, or other amounts due from the Company under the Merchant Agreement, and (ii) as of the date hereof, Issuer and Company have designated the percentage referred to above as the amount due for the Re-Payment contemplated herein, provided that such percentage may be changed upon written notice by Issuer and Company to Processor as set forth herein. Notwithstanding anything to the contrary set forth herein, upon written notice to Issuer at the address indicated below and to Company at the address set forth in its Merchant Agreement, Processor may elect to terminate its participation associated with the Re-Payment as described herein. Notwithstanding the foregoing sentence and absent a law or card association rule or regulation that prohibits or restricts such a continuation, Issuer may continue to collect the Re-Payment pursuant to the terms set forth herein for one hundred eighty (180) days following Processor s termination described above. Such termination shall be without liability or penalty to Processor or Bank, of whatever nature. Except as otherwise set forth herein, this letter agreement cannot be changed, modified or terminated, except by written agreement signed by Processor, Company and Issuer. Please acknowledge your receipt of, and agreement to, the foregoing by signing in the space provided below. Very truly yours, Company ACKNOWLEDGED AND AGREED: (Signature) (Printed name of signer) Title: (Title of signer) Processor - Global Payments Direct, Inc. Title: Issuer - Mercury Payment Systems, LLC Title: Issuer s address: 10 Burnett Court, Suite 300, Durango, Colorado 81301