Unassociated Document


    CREDIT
CARD RECEIVABLES ADVANCE AGREEMENT

    


    This Credit Card Receivables Advance
Agreement (the “Agreement”) is made
as of November 4, 2010, between CC FUNDING a division of CREDIT CASH NJ, LLC, a
Delaware limited liability company with its principal place of business located
at 1 Bridge Plaza, Suite 275, Fort Lee, NJ  07024 and an operating
office located at 505 Park Avenue, 6th Floor,
New York, NY 10022 (the “Lender”), and ONE UP INNOVATIONS, INC., a Georgia
corporation and FOAM LABS, INC., a Georgia corporation, each having its
principal place of business at 2745 Bankers Industrial Drive, Atlanta, GA 30360
(individually and collectively, the “Merchant”).

    


    Preliminary
Statements

    


    (a)           The
Merchant has requested that the Lender periodically make Advances (as defined
below) to the Merchant.  Each such Advance is to be secured by a
security interest in favor of the Lender in, among other property, the
Collateral, including but not limited to all of the Merchant’s existing and
future credit card receivables and other rights to payment arising out of the
Merchant’s acceptance or other use of any credit of charge card (collectively,
“Credit Card
Receivables”).

    


    (b)           Each
Advance is to be evidenced by a separate Advance Schedule (as defined below),
which is to set forth the key economic terms applicable to the
Advance.  Each Advance Schedule is to be issued pursuant to and is to
be subject to all terms and conditions set forth in this Agreement; it being
understood that this Agreement is to act as a master agreement for all Advances
and Advance Schedules, if any, outstanding at any time.

    


    (c)           The
Merchant has agreed to cause the Processor (as defined below) to electronically
remit the Merchant’s collected Credit Card Receivables to the Collection Account
(as defined below).

    


    (d)           The
Lender and the Merchant now desire to enter into this Agreement to memorialize
their understanding regarding the Advances and the parties’ respective rights
and obligations relating thereto.

    


    NOW, THEREFORE, the parties agree as
follows:

    


    1.           Advances and Advance
Schedules.

    


    (a)           Advances.  The
Lender may, in the exercise of its sole and absolute discretion, periodically
advance monies to or for the benefit of the Merchant.  Each such
advance is referred to in herein as an “Advance,” and all
such advances are collectively referred to herein as “Advances.”

    


    (b)           Advance
Schedules.  If the Lender elects to make an Advance to the
Merchant, the Merchant agrees to execute and deliver to the Lender an advance
schedule in form and substance acceptable to Lender (each, an “Advance
Schedule”).  Each Advance Schedule shall be subject to all
terms and conditions set forth in this Agreement and shall set forth, in
addition to any other matters set forth therein, the following:

    


    
      	
               
      

            	
              (i)

            	
              the
      “Advance
      Amount,” which shall be the amount of funds agreed to by the Lender
      and the Merchant in the Advance Schedule which the Lender is to advance to
      or for the benefit of the Merchant under the Advance
    Schedule;

            


    


    
      
         


      

      
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              (ii)

            	
              the
      “Collection
      Amount,” which shall be the amount of funds agreed to by the Lender
      and the Merchant in the Advance Schedule which the Merchant is to remit or
      cause to be remitted to the Lender with respect to the Advance described
      in the Advance Schedule (Note:  the Collection Amount does not
      include any Reimbursable Expenses (as defined below) which the Merchant
      may owe the Lender with respect to the related Advance or
      otherwise);

            


    

    


    
      	
               
      

            	
              (iii)

            	
              the
      “Collection
      Date,” which shall be the date agreed to by the Lender and the
      Merchant in the Advance Schedule by which the Merchant is to cause the
      Collection Amount described in the Advance Schedule to be remitted in its
      entirety to the Lender;

            


    

    


    
      	
               
      

            	
              (iv)

            	
              the
      “Collection
      Account,” which shall be the deposit account into which the
      Processor is to deposit, via electronic funds transfer, the Merchant’s
      collected Credit Card Receivables;
and

            


    

    


    
      	
               
      

            	
              (v)

            	
              the
      “Collection
      Account Bank,” which shall be the bank at which the Collection
      Account is maintained.

            


    

    


    (c)           Discretionary
Advances.  In no event shall the Lender be obligated to make an
Advance to the Merchant; it being understood that any election by the Lender to
make an Advance to the Merchant may be exercised in the Lender’s sole and
absolute discretion.  Without limiting the generality the foregoing,
the Lender’s election to make an Advance on one occasion shall not obligate the
Lender to make an Advance on another occasion.  Similarly, the absence
of an Event of Default shall not obligate the Lender to make an
Advance.  Notwithstanding the foregoing, and without limiting any of
Lender’s rights hereunder, upon Merchant’s loan balance being reduced to no more
than twenty-five percent (25%) of the Advance Amount, and upon Merchant’s
request, Lender may, in Lender’s sole business discretion, “re-load” the Advance
Amount and loan additional monies to Merchant upon substantially the same terms
and conditions set forth herein.  Merchant understands that any
“re-loads” would be made at the sole business discretion of Lender and be
conditioned upon, among other things, Merchant’s payment history with Lender and
Merchant’s financial condition, as determined by Lender.

    


    2.           Repayment of
Advances.

    


    (a)           Processor to Remit
Collections to Collection Account.  The Merchant represents and
warrants to the Lender that all of the Merchant’s Credit Card Receivables are or
will be processed by a Processor reasonably acceptable to Lender (together with
any subsequent successors or assigns, the “Processor”).  The
Merchant agrees to execute and deliver to the Lender, and to cause the Processor
to execute and deliver to the Lender, a payment instruction agreement in form
and substance reasonably acceptable to Lender (the “Payment Instruction
Agreement”).  The Payment Instruction Agreement is to provide
that (i) the Processor is to periodically remit, via electronic funds transfer,
to the Collection Account all of the Merchant’s Credit Card Receivables
collected by the Processor (net of any discounts, fees and/or similar amounts
payable to the Processor by the Merchant which the Processor is entitled to
deduct from the proceeds of the Credit Card Receivables pursuant to the terms of
the Processor Agreement (as defined below) and net of any charge-backs, offsets
and/or other amounts which the Processor is entitled to deduct from the proceeds
of the Merchant’s Credit Card Receivables pursuant to the terms of the Processor
Agreement), and (ii) the Processor must continue transferring such funds until
such time as the Lender gives the Processor written notice that (A) the Lender
has received all Collection Amounts for all Advances then outstanding, and (B)
there are no Reimbursable Expenses (each as defined below) or other fees or
charges then outstanding.  If requested by the Merchant in writing,
the Lender agrees to give the foregoing notice to the Processor if the
conditions described in the preceding clauses (A) and (B) have each been
satisfied.


    
      
         


      

      
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    (b)           Collection Account Bank to
Remit Collections to Lender; Lender to Remit Portion to
Merchant.  The Merchant agrees to execute and deliver a control
agreement or similar agreement among the Merchant, the Lender and the Collection
Account Bank (the “Control Agreement”)
whereby, among other things, the Lender shall be deemed to have “control” of the
Collection Account and all funds at any time deposited therein for purposes of
UCC § 9-104(a)(2) or (3), as the Lender so elects.  The Control
Agreement also is to provide that the Collection Account Bank is to periodically
remit, via electronic funds transfer, all funds on deposit in the Collection
Account to a bank account designated by the Lender (the “Lender
Account”).  Insofar as funds on deposit in the Collection
Account are remitted to the Lender Account, the Lender will retain a fixed
amount each banking day (which amount will be doubled the day after a banking
holiday) to credit to the Collection Amount, in an amount as set forth in each
respective Advance Schedule (the “Fixed Daily Payment”)
until the cash payments applied by the Lender equal to the Collection Amount
(plus all Reimbursable Expenses and all other fees and charges due under this
Agreement) and remit to Merchant, via electronic funds transfer to a bank
account designated by the Merchant in a writing delivered to the Lender, the
balance of all such funds in the Lender Account; provided,
however,
that if the Lender, in its reasonable judgment, deems that it is insecure at any
time in the timely payment of the Collection Amount on the basis of the then
current Fixed Daily Payment, regardless of whether an Event of Default has
occurred, Merchant agrees that the Lender may increase the Fixed Daily Payment
from time to time to assure timely payment of the Collection
Amount.

    


    (c)           In
the event Merchant does not maintain sufficient balances in the Collection
Account for Lender to retain the Fixed Daily Payment, Merchant will be subject
to a five percent (5%) late fee for the amount of any deficiency, which would be
automatically be added to the next daily payment.

    


    (d)           Monthly
True-Up.  Intentionally omitted.

    


    (e)           Collection Amount Not
Received by Collection Date.  If the Collection Amount
specified in an Advance Schedule is not received by the Lender by the Collection
Date specified in the Advance Schedule, or if any other Event of Default exists,
the Merchant shall immediately pay to the Lender the balance of the Collection
Amount that has not yet been remitted to and received by the
Lender.  Notwithstanding the Lender’s right to demand the immediate
payment of all outstanding obligations hereunder on the Collection Date, and
notwithstanding Lender’s right to True-up, as provided above, in the event
Merchant’s obligation to pay the Collection Amount (plus Reimbursable Expenses
and all other fees and charges due hereunder and under the related Agreements)
is not satisfied on or before the Collection Date, and provided Merchant is not
otherwise in default of this Agreement, in lieu of increasing the Fixed Daily
Payment, the Lender may, at the Lender’s option, continue to apply the specified
Fixed Daily Payment to the obligations of the Merchant hereunder.  In
consideration of the Lender extending the Collection Date, Merchant hereby
understands and agrees that Merchant shall pay to the Lender an extension fee
equal to two percent (2%) of the highest outstanding balance of Merchant’s
obligations to Lender for each 30 day period (or part thereof) after the
Collection Date.  The extension fee would automatically be charged to
Merchant’s account on the 1st day
after the Collection Date and each 30 days thereafter.  Merchant
further understands and agrees that if any event or condition specified in the
first sentence of this Section 2(e) exists, the Lender may, in Lender’s
reasonable business discretion, increase the Fixed Daily Payment to 100% of the
funds received into the Collection Account and, as such, recover from the
Collection Account and/or retain in the Lender Account all amounts due the
Lender under this Agreement and/or any Related Agreements (as defined
below).


    
      
         


      

      
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    3.           Security
Interest. 
As security for the prompt performance, observance and payment in full of all
obligations of Merchant to Lender hereunder, Merchant hereby pledges, assigns,
transfers and grants to Lender a security interest in, and continuing lien upon,
and right of setoff against the following property, whether such property or the
Merchant’s right, title or interest therein or thereto is now owned or existing
or hereafter acquired or arising:  (a) all Accounts, including,
without limitation, all Credit Card Receivables; (b) all other payment rights
arising out of the provision of goods or services by the Merchant; (c) the
Collection Account; (d) all rights to receive payments from the Processor and
all other rights arising out of or otherwise relating to the Processor
Agreement; (e) Chattel Paper, including Electronic Chattel Paper and tangible
Chattel Paper; (f) Commercial Tort Claims; (g) Documents; (h) Equipment,
machinery, furniture, furnishings and fixtures and all parts, tools, accessories
and Accessions; (i) Fixtures; (j) General Intangibles, including but not limited
to patents, trademarks and tradenames and the goodwill and inherent value
associated therewith, tax refunds, customer lists, insurance claims and goodwill
of Borrower; (k) Goods; (l) Instruments; (m) Inventory, merchandise, materials,
whether raw, work in progress or finished goods, packaging and shipping
materials and all other tangible property held for sale or lease; (n) Investment
Property; (o) Payment Intangibles; (p) Proceeds, including Cash Proceeds and
Non-Cash Proceeds, and proceeds of any insurance policies covering any of the
Collateral; (q) Promissory Notes; (r) Records, including all books, records and
other property at any time evidencing or relating to any of the foregoing, and
all electronic means of storing such Records; (s) to the extent not otherwise
included above, all collateral support and Supporting Obligations relating to
any of the foregoing; and (t) to the extent not otherwise included above, all
Proceeds, products, accessions, rents and profits of or in respect of any of the
foregoing (collectively, the “Collateral”).  All
capitalized terms in this description that are not otherwise defined shall have
the meanings given to them under the UCC.  The Merchant also
unconditionally and irrevocably assigns to Lender and grants to Lender a
security interest in and to all its present and future right, title and interest
to receive monies under all present and future Processor Agreements (as
hereinafter defined), all other agreements with Processors, agents, independent
sales organizations (ISO’s) and all other persons, all of which shall be deemed
to be part of the Collateral.  In addition to the foregoing, the
security interest in the Collateral secures the payment and performance of all
existing and future obligations of any nature whatsoever of the Merchant to the
Lender, including, without limitation, the Merchant’s obligation to pay all
Collection Amounts, fees, and Reimbursable Expenses owing at any time under this
Agreement and/or any Related Agreements.  The term “Merchant,” as used
in this Section 3, and for purposes of identifying the debtor(s) granting the
security interest in this Section 3, shall mean the Merchant in its own capacity
and as agent for each Merchant Affiliate (as defined below).

    


    4.           Control of Collection
Account.  In addition to the matters described in Section 2(b)
above, the Control Agreement is also to provide that the Lender’s security
interest in the Collection Account is to be perfected by control for purposes of
UCC §9-104(a)(2).


    
      
         


      

      
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    5.           Representations and
Warranties. The Merchant represents and warrants to the Lender as
follows: (a) all of the information provided by the Merchant to the Lender
pursuant to this Agreement or otherwise is true, correct and complete in all
respects; (b) the Merchant has full power and authority to enter into this
Agreement and any Related Agreements and to perform its obligations hereunder
and thereunder; (c) if the Merchant is an entity, (i) the Merchant is duly
organized , validly existing and in good standing under the laws of the
jurisdiction of its organization, and (ii) the Merchant has full organizational
power and authority to enter into this Agreement and any Related Agreements and
to pay and perform its obligations hereunder and thereunder; (d) the Merchant is
duly qualified to do business in each jurisdiction in which it conducts its
business; (e) this Agreement is the legal and valid obligation of the Merchant,
enforceable against the Merchant in accordance with its terms; (f) the Merchant
is solvent, has not made an assignment for the benefit of creditors or filed in
any court, pursuant to any statute of the United States or any state, a petition
for bankruptcy or insolvency, or filed for reorganization or for the appointment
of a receiver or trustee of all or a material portion of its property, and the
Merchant does not have reason to believe any involuntary bankruptcy action or
order will be filed with respect to the Merchant; (g) all amounts are due with
respect to all Credit Card Receivables are due in United States Dollars; (h) any
taxes or fees relating to any Credit Card Receivables or goods or services sold
by the Merchant are solely the Merchant’s responsibility; (i) the historical
Credit Card Receivable data provided by the Merchant to the Lender does not
represent sales to any subsidiary, equity holder or other affiliate; (j) the
Lender has a perfected first priority security interest in the Collateral
subject to no other security interest, lien or claim; and (k) the Merchant has
provided to the Lender a copy of all its processor or similar agreements with
the Processor (collectively, and as amended or otherwise modified from time to
time, the “Processor
Agreement”).

    


    6.           Covenants.  The
Merchant agrees as follows: (a) to conduct its business and use all Advances in
the ordinary course of its business and consistent with its past practices; (b)
to exclusively use the Processor to process all of its charge card, credit card
and debit card transactions which give rise to Credit Card Receivables; (c) not
to take any action to discourage the use of charge cards, credit cards or debit
cards or to permit any event to occur which could have an adverse effect on the
use, acceptance or authorization of charge cards, credit cards or debit cards
for the purchase of the Merchant’s services and products; (d) not to change its
arrangements with Processor without obtaining the prior written consent of the
Lender; (e) not to permit any event to occur that could cause a diversion of any
of the Merchant’s charge card, credit card or debit card transactions to another
charge, credit or debit card processor or to another charge, credit or debit
card network or association; (f) to comply with all of the terms and conditions
imposed by the Processor and/or any applicable charge, credit or debit card
network, association or bank; (g) to provide the Lender with at least 10 days
prior written notice of any event which would cause any of the information
provided by the Merchant to the Lender in this Agreement or otherwise to be
untrue, incorrect or incomplete in any respect; (h) to provide the Lender with
at least 30 days prior written notice of the partial or full closing of any of
Merchant’s locations; (i) not to grant any lien on or security interest in, or
sell, assign transfer, pledge or otherwise dispose of, any Credit Card
Receivables or other Collateral existing or arising on or after the date of this
Agreement; (j) to comply with all laws, rules and regulations applicable to the
Merchant; (k) to permit the Lender and persons designated by the Lender to
inspect and copy all books and records (electronic or otherwise) of the
Merchant, including, without limitation, all such books and records relating to
the Collateral; and (l) not to sell, assign, transfer, pledge or otherwise
dispose of more than ten percent (10%) of the issued and outstanding shares of
common stock or other evidence of ownership of Merchant or sell, assign,
transfer, pledge or otherwise dispose of a substantial portion of Merchant’s
business or assets.  In addition, the Merchant covenants and agrees
that each Credit Card Receivable will (x) be based upon a bona fide sale and
delivery of inventory or rendition of services made by the Merchant in the
ordinary course of its business, and (y) represent a payment obligation for
goods or services accepted by the Merchant’s customer and with respect to which
such customer is obligated to pay the full amount and without dispute, claim,
offset, defense, deduction, rejection, recoupment, counterclaim or
otherwise.

    


    7.           Loan Proceeds for Ordinary
Business Use Only.  Any Advance at any time received by the
Merchant from Lender shall not be used directly or indirectly other than in the
Merchant’s business; Merchant shall not, directly or indirectly, make any loan
to, or pay any claim other than for current remuneration or current reimbursable
expense payable to any person and Merchant shall, on demand, obtain and deliver
to Lender subordinations in form and substance satisfactory to Lender of all
claims of controlling and controlled persons consistent with the foregoing.
 Notwithstanding the
foregoing, Merchant may make regularly scheduled payments pursuant certain
unsecured promissory notes to S. Gallant, M. Kane, W. & C. Parks and H.
Berkowitz; provided, however, that the H. Berkowitz balloon note
must be extended to be payable no earlier than May 1, 2011; and provided, further, that no payments may be made to any
unsecured creditor set forth above upon the occurrence and continuation of any
Event of Default.


    
      
         


      

      
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    8.           Credit Investigation;
Inspection Rights. The Merchant irrevocably authorizes the Lender and its
agents:  (a) to investigate any references or any other information
provided by the Merchant or obtained from or about the Merchant for purposes of
this Agreement or any Related Agreements; (b) to obtain any information from the
Processor regarding the Merchant, including, without limitation, any information
relating to the Merchant’s Credit Card Receivables; (c) if the Lender so elects,
to contact and obtain any information from any account debtors or other persons
liable for or involved in the payment, collection, processing or any other
aspect of the Merchant’s Credit Card Receivables and/or the collection or
payment thereof.

    


    9.           Merchant’s Use of Trade
Names; Merchant Affiliates.  If the Merchant’s Credit Card
Receivables are payable to the Merchant under one or more trade names,
fictitious names, assumed names or other designations (collectively, “Trade Names”), the
Merchant authorizes the Processor and, to the extent applicable, the Collection
Account Bank and the Lender to receive and retain, to the extent provided herein
or in any Related Agreements, all Credit Card Receivables owing to the Merchant
under any Trade Names.  Similarly, if any financial information,
historical data or other information provided by the Merchant to the Lender
relates to any credit card or debit card receivables or the like owing or
otherwise payable to any affiliates of the Merchant (each, a “Merchant Affiliate”),
(a) the Merchant represents and warrants to the Lender that each such Merchant
Affiliate has authorized the Merchant, as the Merchant Affiliate’s agent, to
take all action described in or contemplated by this Agreement or any Related
Agreements with respect to such Merchant Affiliate’s receivables, including,
without limitation, the granting of the security interest in the Merchant
Affiliate’s assets described in Section 3 above, and (b) unless the context
clearly requires otherwise, all references in this Agreement or any Related
Agreements to “Merchant” shall be deemed to refer to the Merchant on its own
behalf and as agent for all Merchant Affiliates.

    


    10.         Events of
Default.  The occurrence of any of the following actions shall
constitute an “Event
of Default” under this Agreement:  (a) the Merchant fails to
pay, perform or observe any obligation of the Merchant to the Lender, including,
without limitation, the Merchant fails to pay any Collection Amounts, fees or
Reimbursable Expenses owing to the Lender; (b) if collections into the Lender
Account are insufficient to retain the Fixed Daily Payment on two (2) days in
any thirty (30) day period; (c) any representation or warranty made at any time
by the Merchant to the Lender, or any information regarding the Merchant
supplied at any time by the Merchant to the Lender regarding the Merchant or its
business, shall prove to be false or misleading in any material respect; (d) any
bankruptcy or other insolvency action shall be filed by or against the Merchant
or any receiver shall be appointed; (e) the Merchant violates any provisions of
this Agreement and the Related Agreements, including but not limited to, the
Payment Instruction Agreement and the Processor Agreement, or the Merchant
utilizes any person other that the Processor to process any Credit Card
Receivables; (f) any material adverse change occurs in the economic condition or
prospects of the Merchant, including but not limited to, Merchant’s default
under any third party agreements, including real estate leases, equipment leases
or any other financing agreements; or (g) the Lender, acting in good faith,
deems itself insecure.


    
      
         


      

      
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    11.         Remedies. Upon the
occurrence of an Event of Default, the Lender (a) shall be entitled to exercise
all rights and remedies specified in this Agreement and/or any of the Related
Agreements, including, but not limited to, increasing the Fixed Daily Payments
in such amount as Lender deems reasonable as a result of such default, (b) shall
be entitled to assess, in addition to all other rights, remedies and fees, a
Default Rate of interest on all outstanding obligations of the Merchant at the
default rate of 18% per annum (the "Default Rate") and
such default interest shall be payable on demand.  The Default Rate
shall be computed on the basis of a 360-day year for the actual number of days
elapsed and shall be computed on the daily outstanding balance of Merchant’s
obligations for each day Merchant remains in default or until all obligations
are paid in full, whichever is earlier; (c) shall have all rights and remedies
of a secured party upon default under the UCC, and (d) shall be entitled to
exercise all other rights available to it at law or in equity.  All
rights and remedies of the Lender shall be cumulative, and no failure or delay
in exercising any right or remedy by the Lender shall preclude the Lender from
exercising the same or any other right or remedy.

    


    12.         Reimbursable
Expenses.  The Merchant agrees to reimburse the Lender on
demand for the following (collectively, “Reimbursable
Expenses”):  (a) all reasonable out-of-pocket costs and
expenses incurred at any time by the Lender in connection with any due diligence
and/or credit investigation of the Merchant; (b) reasonable internal
documentation fees and external attorney’s fees and expenses
incurred  with respect to the negotiation, preparation, consummation,
administration and/or any amendment of this Agreement and any other agreements
between the Merchant and the Lender, including, without limitation, any guaranty
of all or any portion of the Merchant’s obligations to the Lender, which
internal fees shall be reasonably determined by the Lender based upon the time
expended in conducting any of the foregoing matters; (c) any review or
verification of the Merchant’s Credit Card Receivables, any public records
searches and the filing or other recordation of any Uniform Commercial Code
financing statements or other documents necessary or, in the Lender’s judgment,
desirable to perfect or preserve the security interest and other rights or
remedies granted or available to the Lender under this Agreement; (d) a service
charge of $50 for each federal wire transfer initiated by or on behalf of the
Lender to or for the benefit of the Merchant or at Merchant’s option, $10.00 for
each Automated Clearing House (“ACH”) transfer initiated by or on behalf of the
Lender to or for the benefit of the Merchant; (e) a service charge for
disbursements made to third parties in an amount equal to 15% of the amount for
each check issued by the Lender to the Merchant or to a third party for or on
behalf of the Merchant’s account; and (f) so long as any Event of Default is in
effect, all costs and expenses incurred by the Lender to enforce any of its
rights and remedies under this Agreement and any Related Agreements, including,
without limitation, all internal and external attorneys’ fees and expenses and
all experts’ and advisors’ fees and expenses incurred by the Lender in
connection therewith.

    


    13.         Indemnification. The
Merchant agrees to indemnify, defend and hold harmless the Lender and its equity
holders, officers, managers, employees and agents from and against any damages,
claims, liabilities, costs, expenses and/or other losses, including, without
limitation, attorney’s fees and court costs, arising out of or otherwise
relating in any respect to this Agreement and/or any Related Agreements, the
transactions contemplated hereby and/or the exercise or enforcement of any
rights of the Lender in connection therewith, except insofar as any such
indemnified losses arise out of the gross negligence or willful misconduct of an
indemnified party.  This Section shall survive any termination of this
Agreement.

    


    14.         Power of
Attorney.  The Merchant irrevocably designates, makes,
constitutes and appoints the Lender, and all persons designated by the Lender,
as the Merchant’s true and lawful attorney and agent-in-fact (such power of
attorney and agency being coupled with an interest and therefore irrevocable
until all of the Merchant’s obligations to the Lender have been satisfied), and
the Lender, and any persons designated by the Lender, may, at any time except as
otherwise provided below, and without notice to or the consent of the Merchant
and in either the Merchant’s or the Lender’s name, (a) pay and/or perform any
obligations of the Merchant under this Agreement or any of the Related
Agreements, (b)  receive payments relating to the Collateral in the
Merchant’s name and endorse the Merchant’s name on any checks, notes,
acceptances, drafts, money orders or any other evidence of payment or proceeds
of any Collateral which come into the possession of the Lender or its agents or
under the Lender’s or its agents’ control, and (c) at any time an Event of
Default exists, (i) to the extent the Collateral consists of accounts
receivable, enforce payment of the accounts by legal proceedings or otherwise
and generally exercise all of the Merchant’s rights and remedies with respect to
the collection of the accounts, (ii) settle, adjust, compromise, discharge or
release any accounts or other Collateral or any legal proceedings brought to
collect any of the accounts or other Collateral, (iii) sell or otherwise
transfer any Collateral upon such terms, for such amounts and at such time or
times as the Lender deems advisable, (iv) take control, in any manner, of any
item of payment or proceeds relating to any Collateral, (v) prepare, file and
sign the Merchant’s name to a proof of claim in bankruptcy or similar document
against any account debtor, (vi) use the information recorded on or contained in
any data processing equipment and computer hardware and software relating to
accounts and any other Collateral and to which the Merchant has access, and
(vii) do all other acts and things necessary, in the Lender’s determination, to
fulfill the Merchant’s obligations under this Agreement and the Related
Agreements.


    
      
         


      

      
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    15.         Miscellaneous
Definitions.  The following terms have the following meanings
in this Agreement (capitalized terms defined in this Section, or elsewhere in
this Agreement, in the singular are to have a corresponding meaning when used in
the plural, and vice versa):

    


    (a)           “Related Agreements”
means the Control Agreement, the Payment Instruction Agreement, all Advance
Schedules and all other agreements to which the Lender and the Merchant are
parties from time to time, as any of the foregoing may be amended or otherwise
modified from time to time.

    


    (b)           “UCC” means Article 9
of the Uniform Commercial Code as in effect in the State of New Jersey from time
to time.

    


    16.         Miscellaneous.

    


    (a)           Entire Agreement;
Waiver.  This Agreement constitutes the entire agreement
between the parties with regard to the subject matter hereof, and supersedes any
prior agreements or understandings. This Agreement can be changed only by a
writing signed by all parties. The failure or delay of the Lender in exercising
any right hereunder will not constitute a waiver thereof or bar the Lender from
exercising any of its rights at any time.

    


    (b)           One General Obligation;
Cross Collateral.  The Merchant understands and agrees that all
loans and advances by Lender to Merchant under this Agreement, all Advance
Schedules and the other Related Agreements, constitute one loan, and all
indebtedness and obligations of Merchant to Lender under this Agreement and all
Advance Schedules, present and future, constitute one general obligation secured
by the Collateral and security held and to be held by Lender hereunder and by
virtue of all other agreements between Merchant (and all guarantors) and Lender
now and hereafter existing, including the Related Agreements.  If more
than one Merchant, each Merchant shall be jointly and severally liable for
payment of all of the obligations hereunder, the Related Agreements and under
any other agreement between Lender and any Merchant.  It is distinctly
understood and agreed that all of the rights of Lender contained in this
Agreement shall likewise apply insofar as applicable to any modification of or
supplement to this Agreement and to any other agreements, present and future,
between the Lender and Merchant, including the related
Agreements.


    
      
         


      

      
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    (c)           Interest Rate “Savings
Clause”.  Notwithstanding anything to the contrary in this
Agreement, (i) all agreements and communications between the Merchant and the
Lender are hereby and shall automatically be limited so that, after taking into
account all amounts deemed interest under this Agreement, the interest
contracted for, charged or received by the Lender shall never exceed the maximum
lawful rate or amount, (ii) in calculating whether any interest exceeds the
lawful maximum, all such interest shall be amortized, prorated, allocated, and
spread over the full amount and term of all principal indebtedness of the
Merchant to the Lender, and (iii) if through any contingency or event, the
Lender receives or is deemed to receive interest in excess of the lawful
maximum, any such excess shall be deemed to have been applied toward payment of
the principal of any and all then outstanding indebtedness of the Merchant to
the Lender, or if there is no such indebtedness, shall immediately be returned
to the Merchant.

    


    (d)           Governing Law; Consent to
Forum.  This Agreement shall be governed by the laws of the
State of New Jersey without giving effect to any choice of law rules
thereof.  As part of the consideration for new value this day
received, the Merchant consents to the jurisdiction of any state court located
within Bergen County, New Jersey or any federal court located in Bergen County,
New Jersey (collectively, the “Chosen Forum”), and
waives personal service of any and all process upon it and consents that all
such service of process be made by certified or registered mail directed to the
Merchant at its most recent address as reflected in the Lender’s records, and
service so made shall be deemed to be completed upon delivery
thereto.  The Merchant waives any objection to jurisdiction and venue
of any action instituted against it as provided herein and agrees not to assert
any defense based on lack of jurisdiction or venue.  The Merchant
further agrees not to assert against the Lender (except by way of a defense or
counterclaim in a proceeding initiated by the Lender) any claim or other
assertion of liability relating to any of this Agreement, any of the Related
Agreements, the Collateral or the Lender’s actions or inactions in respect of
any of the foregoing in any jurisdiction other than the Chosen
Forum.  Nothing in this Agreement shall affect the Lender’s right to
bring any action or proceeding relating to this Agreement or the Related
Agreements against the Merchant or its properties in courts of other
jurisdictions.

    


    (e)           Waiver of Jury Trial;
Limitation on Damages.  To the fullest extent permitted by law,
and as separately bargained-for consideration to the Lender, the Merchant waives
any right to trial by jury (which the Lender also waives) in any action, suit,
proceeding or counterclaim of any kind arising out of or otherwise relating to
any of this Agreement, the Related Agreements, the Collateral or the Lender’s
actions or inactions in respect of any of the foregoing.  To the
fullest extent permitted by law, and as separately bargained-for consideration
to the Lender, the Merchant also waives any right it may have at any time to
claim or recover in any litigation or other dispute involving the Lender,
whether the underlying claim or dispute sounds in contract, tort or otherwise,
any special, exemplary, punitive or consequential damages or any damages other
than, or in addition to, actual damages.  The Merchant acknowledges
that the Lender is relying upon and would not enter into the transactions
described in this Agreement on the terms and conditions set forth herein but for
the Merchant’s waivers and agreements under this Section.

    


    (f)           General Waivers by
Merchant.  Except as otherwise expressly provided for in this
Agreement, the Merchant waives: (i) presentment, protest, demand for payment,
notice of dishonor demand and protest and notice of presentment, default, notice
of nonpayment, maturity, release, compromise, settlement, extension or renewal
of any or all accounts, contract rights, documents, instruments, chattel paper
and guaranties at any time held by the Lender on which the Merchant may in any
way be liable and ratifies and confirms whatever the Lender may do in this
regard; (ii) notice prior to taking possession or control of the Collateral or
any bond or security which might be required by any court prior to allowing the
Lender to exercise any of the Lender’s remedies, including the issuance of an
immediate writ of possession; (iii) the benefit of all valuation, appraisement
and exemption laws; and (iv) any and all other notices, demands and consents in
connection with the delivery, acceptance, performance, default or enforcement of
this Agreement or any of the Related Agreements and/or any of the Lender’s
rights in respect of the Collateral.  The Merchant also waives any
right of setoff or similar right the Merchant may at any time have against the
Lender as a defense to the payment or performance of the Merchant’s obligations
to the Lender under this Agreement or any of the Related
Agreements.  If the Merchant now or hereafter has any claim against
the Lender giving rise to any such right of setoff or similar right, the
Merchant agrees not to assert such claim as a defense or right of setoff with
respect to the Merchant’s obligations under this Agreement or any Related
Agreements, and to instead assert any such claim, if the Merchant so elects to
assert such claim, in a separate proceeding against the Lender and not as a part
of any proceeding or as a defense to any claim initiated by the Lender to
enforce any of the Lender’s rights under this Agreement or any of the Related
Agreements.


    
      
         


      

      
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    (g)           Disbursing
Agent.  The Merchants hereby appoint ONE UP INNOVATIONS, INC.
as the “Disbursing
Agent” to the Merchants as it is in the best interest and convenience of
the Merchants that all Advances made by Lender pursuant to this Agreement be
made only to the Disbursing Agent rather than to each of the Merchants
individually.  Accordingly, the Disbursing Agent shall be the sole
entity entitled to receive the funds advanced by Lender under this Agreement and
the Disbursing Agent shall make disbursements to the Merchants as reasonably
requested by each Merchant to conduct its respective
business.  Moreover, the Disbursing Agent and each Merchant agree that
the Collection Amount shall be collected from the Collection
Account.  All of the proceeds received by Lender will be credited by
Lender to the Disbursing Agent’s account and the Disbursing Agent shall have the
sole authority to further credit any such collections to each Merchant,
individually.  Each Merchant hereby irrevocably waives any claim it
may have against Lender and hereby indemnifies and holds Lender harmless from
and against all damages, losses, claims, demands, liabilities, obligations,
actions and causes of action whatsoever which such Merchant may have against
Lender which may arise as a result of Advances being made by Lender solely to
the Disbursing Agent and/or collections being credited by Lender solely the
Disbursing Agent’s account with Lender.

    


    (h)           Successors and
Assigns.  This Agreement binds and benefits each party and its
successors, heirs and assigns, as applicable; provided, however, that the
Merchant may not assign this Agreement or any of its rights or obligations
hereunder without obtaining the prior written consent of the
Lender.

    


    (i)           Severability; Section
Headings.  Wherever possible, each provision of this Agreement
and each Related Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
or any Related Agreement shall be prohibited by or invalid under applicable law,
such provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement of such Related Agreement, as the case
may be.  Section headings herein and any Related Agreements are for
convenience only and are not controlling.

    


    (j)           Counterparts; Fax
Signatures.  This Agreement and any Related Agreements may be
executed in any number of counterparts (whether facsimile or original), each of
which shall be deemed an original as to the party whose signature appears
thereon and all of which together shall constitute one and the same instrument.
An executed facsimile of this Agreement or any Related Agreement shall be deemed
a valid and binding agreement between the parties hereto or
thereto.

    


    [signature
page(s) to follow]


    
      
         


      

      
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    IN WITNESS WHEREOF, the undersigned
have entered into this Agreement by their duly authorized representatives as of
the date first written above.

    


    
      
        
          
            	 
      	
                    CC
      FUNDING a division of

                  
	 
      	
                    CREDIT
      CASH NJ, LLC

                  
	 
      	 
      	 
      
	 
      	
                    By:

                  	
                    /s/ Dean Landis

                  
	 
      	
                    Name: 

                  	
                    Dean
      Landis

                  
	 
      	
                    Title:

                  	
                    President

                  
	 
      	 
      	 
      
	 
      	
                    ONE
      UP INNOVATIONS, INC.

                  
	 
      	
                    Merchant

                  
	 
      	 
      	 
      
	 
      	
                    By:

                  	
                    /s/ Louis S. Friedman

                  
	 
      	
                    Name: 

                  	
                    Louis
      S. Friedman

                  
	 
      	
                    Title:

                  	
                    President

                  
	 
      	 
      	 
      
	 
      	
                    FOAM
      LABS, INC.

                  
	 
      	
                    Merchant

                  
	 
      	 
      	 
      
	 
      	
                    By:

                  	
                    /s/ Louis S. Friedman

                  
	 
      	
                    Name: 

                  	
                    Louis
      S. Friedman

                  
	 
      	
                    Title:

                  	
                    President

                  


          

        

      

    

    


    
      
        
          	
                  STATE
      OF GEORGIA

                	
                  )

                
	 
      	
                  )ss.:

                
	
                  COUNTY
      OF

                	
                  )

                


        

      

    

    


    On this 3
day of November, 2010 before me personally appeared Louis S. Friedman, personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual whose name is subscribed to the within instrument and acknowledged to
me that he/she is the President of ONE UP INNOVATIONS, INC. and FOAM LABS, INC.,
the corporations herein described and that he/she executed the same in his/her
capacity as an officer of said corporations, and that he/she signed the
instrument by order of the board of directors of said respective
corporations.

    


    
      
        
          
            	 	
                    /s/ Pamela Fulwood

                  
	 	
                    Notary
      Public

                  


          

        

      

    


    
      
         


      

      
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