Preview
FILED: MONROE COUNTY CLERK 05/15/2024 03:08 PM INDEX NO. E2024008225
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 05/15/2024
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3867597
Book Page CIVIL
Return To: No. Pages: 21
STEVEN ZAKHARYAYEV
10 W37th Street, RM 602 Instrument: EXHIBIT(S)
New York, NY 10018
Control #: 202405151623
Index #: E2024008225
Date: 05/15/2024
White Road Capital LLC D/B/A GFE Holdings Time: 3:45:31 PM
JULIENCRUZ LLC
DEMERS, ROSS JULIEN
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
202405151623 Index #
INDEX : E2024008225
NO. E2024008225
FILED: MONROE
DocuSign Envelope COUNTY CLERK 05/15/2024 03:08 PM
ID: 232E552F-2A35-462F-A6FC-821D8C4E5101
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 05/15/2024
MERCHANT CONTRACT:
JULIENCRUZ LLC
I hereby certify that ISO - Sienna Marketing & Consulting Inc (Creative Capital) (“Agent”) acted as
a Merchant’s agent.
Completed and attested by:
{{ ds_merchant_title_sign_1 }}
06/08/2023 Agent Name: ISO - Sienna Marketing & Consulting Inc (Creative Capital)
202405151623 IndexNO.
INDEX #: E2024008225
E2024008225
FILED: MONROE
DocuSign Envelope COUNTY CLERK 05/15/2024 03:08
ID: 232E552F-2A35-462F-A6FC-821D8C4E5101 Agent Name: PM
ISO - Sienna Marketing & Consulting Inc (Creative Capital)
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 05/15/2024
27-01 Queens Plaza North, Suite 802, Long Island City, NY 11101
Tel: 1-877-253-7686, Fax: 718-504-3736
Website: www.globalfundingexperts.com / Email: underwriting@globalfundingexperts.com
__________________________________________________________________________________________________________________________________________
MERCHANT AGREEMENT
Agreement dated _____06/08/2023_____ between White Road Capital LLC, Series: 203762, D/B/A: GFE Holdings ("White Road") and the Merchant listed
below ("MERCHANT")
(Month) (Day) (Year)
MERCHANT INFORMATION
Merchant’s Legal Name: JULIENCRUZ LLC
D/B/A: JULIENCRUZ LLC
State of Incorporation / Organization: TX
Type of Business Entity: LLC
Federal EIN: 844202731
Physical Address: 2719 CREST RIDGE DRIVE, Dallas, TX, 75228
Mailing Address: 2719 CREST RIDGE DRIVE, Dallas, TX, 75228
Primary Contact & Number: ROSS JULIEN DEMERS
PURCHASE AND SALE OF FUTURE RECEIVABLES
Merchant (“Merchant”), in consideration of the funds provided to Merchant by White Road as specified below (“Purchase Price”), hereby sells, assigns and transfers to White Road
(making White Road the absolute owner) the Specified Percentage indicated below of all of Merchant’s future accounts, contract rights and other entitlements arising from or relating to
the payment of monies from Merchant’s customers’ and/or other third party payors (the “Receipts”) defined as all payments made by cash, check, electronic transfer or other form of
monetary payment in the ordinary course of the Merchant’s business, for the payments due to Merchant as a result of Merchant’s sale of goods or services (the “Transactions”) until the
amount specified below (the “Purchased Amount”) has been delivered by or on behalf of Merchant to White Road.
The Purchased Amount shall be paid to White Road by Merchant irrevocably directing and authorizing that there be only one depositing bank account, which account must be
acceptable to and pre-approved by White Road (the “Account”) into which Merchant and Merchant’s customers shall remit the percentage specified below (the “Specified Percentage”)
of the Merchant’s settlement amounts due from each Transaction, until such time as White Road receives payment in full of the Purchased Amount. Merchant hereby authorizes White
Road to ACH Debit the specified remittances from the Merchant’s Account on the frequency outlined herein below in the “Specified Remittance Amount & Frequency” box and will
provide White Road with all required access codes and monthly bank statements. Merchant understands that it is responsible for ensuring that the Specified Percentage to be debited by
White Road remains in the Account and will be held responsible for any fees incurred by White Road resulting from a rejected ACH attempt or an event of default. (See Appendix A)
White Road is not responsible for any overdrafts or rejected transactions that may result from White Road’s ACH debiting the specified amounts under the terms of this agreement.
White Road will debit the specified remittance amount during a business day based on the frequency outlined herein below in the “Specified Remittance Amount & Frequency” box.
The Merchant shall deliver to White Road, no later than the 18th date of each month the bank statement for the Account in respect of the immediately preceding month. Within three
business days of White Road’s receipt of the Merchant’s monthly bank statements, White Road shall reconcile the Merchant’s Account by either crediting or debiting the difference
from or back to the Merchant’s Account so that the amount debited per month equals the Specified Percentage. If the Merchant fails to deliver the bank statement for the Account for
any month, White Road shall consider that the specific remittances were equal to the Specified Percentage of the settlement amount due from each Transaction for such month. White
Road may, upon Merchant’s request, adjust the amount of any payment due under this Agreement at White Road’s sole discretion and as it deems appropriate. Notwithstanding anything
to the contrary in this Agreement or any other agreement between White Road and Merchant, upon the violation of any provision contained in Section 1.11 of the MERCHANT
AGREEMENT TERMS AND CONDITIONS or the occurrence of an Event of Default under Section 3 of the MERCHANT AGREEMENT TERMS AND CONDITIONS, the
Specified Percentage shall equal 100%. A list of all fees applicable under this Agreement is contained in Appendix A.
ORIGINAL OFFER:
Total Purchase Price: $190,000.00 Merchant’s Average Monthly Revenue: $163,244.90
Purchased Amount of Receivables: $265,810.00 Specified Percentage of Monthly Revenue: 21%
Total Fees*: $0.00 Specified Remittance Amount & Frequency: $1,599.00 / Daily
Net Funded Amount**: $190,000.00 Initial Estimated # of Remittance Payments: 167
* This amount reflects the total fees Merchant will pay at funding. See Appendix A for a complete breakdown of fees.
** This amount reflects the total funds Merchant will receive after all the fees and balance transfers are deducted from the Total Purchase Price. See Balance Transfer Form
for a complete breakdown of the remaining RTR balances.
*** If an Early Payment Addendum has been executed by White Road and the Merchant, the promotional early termination discount referenced above shall be applicable
subject to the terms and conditions set forth in the Early Payment Addendum.
The Total Purchase Price may also be paid incrementally over time, in the increments and in the Specific Remittance Amounts set forth in the Attachment A Addendum
annexed hereto.
Merchant #1 Initials: _______ Page 2 of 20
202405151623 #: E2024008225
Index NO.
INDEX E2024008225
FILED: MONROE
uucuo yn coveiope COUNTY CLERK 05/15/2024 03:08
ID: 232E552F-2A35-462F-A6FC-821D8C4E5101
PM- Sienna
Agent Name:ISO & Marketing
()
THEMERCHANT
NYSCEF DOC. NO.AGREEMENT
2 A ND
TERMS CONDITIONS S ET FORTH
ON PAGE 2, THE "SECURITY AGREEMENT AND GUARANTY"
RECEIVED AND
NYSCEF: THE
05/15/2024
"ADMINISTRATIVE FORM HEREOF,AREALL HEREBYINCORPORATED IN ANDMADE A PARTOFTHIS MERCHANT AGREEMENT. BYSIGNING
BELOW, M ERCHANT HEREBY AND
REPRESENTS WARRANTS THATNOTHING CONTAINED HEREINIS FALSE,MISLEADING, AND THAT MERCHANT
HASNOT FAILED TO DISCLOSEANY MATERIALINFORMATION TOOBTAIN FUNDING FROM White Road.
DocuSigned
by:
Full Name: ROSSJULIENDEMERS HomeAddress: 2719CREST
RIDGE
DRIVE17350 HWY
STATE 249STE220,HOUSTON,
TX77064,
Dallas,
TX,75228
Title Sole Member Cell Phone Number: 2146358364
Social Security No: Home Secondary Number: 2146358364
or
Driver License No: Email: demersross@yahoo.com
DocuSigned
by:
Full Name: ROSSJULIENDEMERS HomeAddress: 2719CREST
RIDGE
DRIVE17350 HWY
STATE 249STE220,HOUSTON,
TX77064,
Dallas,
TX,75228
Title Sole Member Cell Phone Number: 2146358364
Social Security No: Home Secondary Number: 2146358364
or
Driver License No: Email: demersross@yahoo.com
White Road Capital LLC, Series: 203762, D/B/A: GFEHoldings
By:
(Company Officer)
DS
Merchant #1 Initials: Page 3 of 20
202405151623 IndexNO.
INDEX #: E2024008225
E2024008225
FILED: MONROE
DocuSign Envelope COUNTY CLERK 05/15/2024 03:08
ID: 232E552F-2A35-462F-A6FC-821D8C4E5101 Agent Name: PM
ISO - Sienna Marketing & Consulting Inc (Creative Capital)
NYSCEF DOC. NO. 2 MERCHANT AGREEMENT TERMS AND CONDITIONSRECEIVED NYSCEF: 05/15/2024
I. TERMS OF ENROLLMENT IN PROGRAM
1.1 Merchant Deposit Agreement. Merchant shall execute an agreement (the “Merchant Deposit Agreement”) acceptable to White Road with a Bank
acceptable to White Road to obtain electronic fund transfer services for the Merchant’s account at the Bank approved by White Road (the “Account”).
Merchant shall provide White Road and/or its authorized agent(s) with all of the information, authorizations and passwords necessary for verifying
Merchant’s receivables, receipts, deposits and withdrawals into and from the Account. Merchant hereby authorizes White Road and/or its agent(s) to
deduct from the Account the amounts owed to White Road for the receipts as specified herein and to pay such amounts to White Road. Merchant also
hereby authorizes White Road to withdraw from the Account the Specified Percentage(s) and/or sums by White Road debiting the account. These
authorizations apply not only to the approved Account but also to any subsequent or alternate account used by the Merchant for these deposits, whether
pre-approved by White Road or not. This additional authorization is not a waiver of White Road’s entitlement to declare this Agreement breached by
Merchant as a result of its usage of an account which White Road did not first pre-approve in writing prior to Merchant’s usage thereof. The
aforementioned authorizations shall be irrevocable without the written consent of White Road.
Merchant understands and agrees that this Agreement, including the authorizations to access Merchant`s accounts (including the Account) set forth
herein, as well as all other payment processing agreements entered into with respect to the Transactions irrevocably authorize the processor of such
payments (the “Processor”) and Operator to pay the cash attributable to the Specified Percentage of Receivables to White Road rather than to Merchant
until White Road receives the cash attributable to the entire Specified Amount of Future Receivables from Processor and Operator. Merchant and
Guarantor(s) authorize White Road and its agents: i) to investigate Merchant’s financial status and history, and will provide to White Road any
authorizations, bank or financial statements, tax returns, etc., as White Road deems necessary in its sole and absolute discretion prior to or at any time
after execution of this Agreement. and ii) to update such information and financial and credit profiles from time to time as White Road deems appropriate.
Merchant hereby authorizes all of its banks, brokers, processors and customers to provide White Road with Merchant's bank statements, brokerage
statements, processing history and such other statements and information as White Road may in its sole discretion require to determine Merchant’s and
Guarantor’s qualification or continuation in this program and for collections purposes. Merchant shall provide White Road with copies of any documents
related to Merchant's card processing activity or financial and banking affairs within five days after a request from White Road.
These authorizations and instructions may be revoked only with the prior written consent of White Road. Merchant agrees that Processor and Operator
may rely upon the instructions of White Road, without any independent verification, in making the cash payments above. Merchant waives any claim for
damages it may have against Processor or Operator in connection with actions taken based on instructions from White Road, unless such damages were
due to such Processor`s or Operator`s failure to follow White Road`s instructions. Merchant acknowledges and agrees that (a) Processor and Operator will
be acting on behalf of White Road with respect to the specified Percentage of Receivables until cash attributable to the entire Specified Amount of Future
Receivables has been remitted by Processor and Operator to White Road, (b) Processor and Operator may or may not be affiliates of White Road, (c)
White Road does not have any power or authority to control Processor`s or Operator`s actions with respect to the processing of Card transactions or
remittance of cash to White Road, (d) White Road is not responsible and shall not be liable for, and Merchant agrees to hold White Road harmless for, the
actions of Processor and Operator, and (e) funds representing the Specified Percentage of Receivables in the possession of Processing or Operator
constitute property owned solely by White Road, and Merchant disclaims any and all interest therein. For purposes of this Agreement, the term
“Operator” shall mean White Road or any person or entity designated by White Road to debit or otherwise withdraw (via the Automated Clearing House
(“ACH”) system, electronic checks, wires, or otherwise) any amounts from Merchant`s or principal(s) accounts as authorized or permitted by this
Agreement.
1.2 Term of Agreement. This Agreement shall remain in full force and effect until the entire “Purchased Amount” is received by White Road as per the
terms of this Agreement. The termination of this Agreement shall not affect Merchant’s continuing obligation and responsibility to fully satisfy all
outstanding obligations that are due to White Road.
1.3 Future Purchases. White Road reserves the right to rescind the offer to make any purchase payments hereunder, in its sole and absolute discretion.
1.4 Financial Condition. Merchant and Guarantor(s) (as hereinafter defined) authorize White Road, its agents and representatives, as well as any credit
reporting agency engaged by White Road, i) to investigate their financial responsibility and history, including any references given or any other
statements or data obtained from or about Merchant or any of the Guarantor(s); ii) to obtain consumer and business credit reports on the Merchant and
Guarantor(s); iii) to contact any current or prior bank of the Merchant in order to obtain whatever information it may require regarding any and all of
Merchant’s transactions with any such bank, including, but not limited to applications, bank statements, financial statements and tax returns; and (iv) to
contact personal and business references provided by the Merchant or Guarantor(s), at any time now or for so long as Merchant and/or Guarantor(s)
continue to have any obligation owed to White Road as a consequence of this Merchant Agreement or for White Road's ability to determine Merchant’s
eligibility to enter into any future agreement with White Road. Merchant and Guarantor(s) will further provide to White Road any authorizations, bank or
financial statements, tax returns, etc., as White Road deems necessary in its sole and absolute discretion prior to or at any time after execution of this
Agreement. A photocopy of this authorization will be deemed as acceptable as an authorization for release of financial and credit information. White
Road is authorized to update such information and financial and credit profiles from time to time as it deems appropriate. Merchant and Guarantor(s)
acknowledge and agree that all information (financial and other) provided by or on behalf of Merchant and Guarantor(s) has been relied upon to White
Road in connection with its decision to purchase the Specified Amount of Future Receivables from Merchant.
1.5 Transactional History. Merchant authorizes all of their banks and brokers to provide White Road with Merchant’s banking, brokerage and/or
processing history to determine qualification or continuation in this program. Merchant herby (i) authorizes White Road to contact any past, present or
future processor of Merchant, its predecessors or affiliates, to obtain any information that White Road deems necessary or appropriate regarding any of
their transactions with such processors, and (ii) authorizes and directs such processors to provide White Road with all such information in compliance
with this Section. Such information may include information to verify the amount of Card receivables previously processed on behalf of Merchant, its
predecessors or affiliates, and any amounts that may have been paid to, offset, held or reversed by, such processors. Without limiting the generality of the
foregoing, Merchant authorizes White Road to contact any past, present or future processor of Merchant, its predecessors or affiliates, to confirm that
Merchant is exclusively using the Processor accepted by White Road in accordance with this Agreement.
Merchant #1 Initials: _______ Page 4 of 20
202405151623 IndexNO.
INDEX #: E2024008225
E2024008225
FILED: MONROE
DocuSign Envelope COUNTY CLERK 05/15/2024 03:08
ID: 232E552F-2A35-462F-A6FC-821D8C4E5101 Agent Name: PM
ISO - Sienna Marketing & Consulting Inc (Creative Capital)
NYSCEF DOC. NO.Merchant
1.6 Indemnification. 2 RECEIVED
and Guarantor(s) jointly and severally indemnify and hold harmless Processor and NYSCEF:
Operator, their respective05/15/2024
officers,
directors, affiliates, employees, agents, representatives and shareholders against all losses, damages, claims, liabilities and expenses (including reasonable
attorney’s fees) suffered or incurred by Processor or Operator resulting from (a) claims asserted by White Road for monies owed to White Road from
Merchant and (b) actions taken by Processor in reliance upon any fraudulent, misleading or deceptive information or instructions provided by White
Road.
1.7 No Liability. In no event will Processor, Operator or White Road be liable for any claims asserted by Merchant or Guarantors under any legal theory
or 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 is waived by both Merchant and Guarantor(s). In the event these claims are nonetheless raised, Merchant and
Guarantors will be jointly liable for all of White Road’s legal fees and expenses resulting therefrom.
1.8 Reliance on Terms. Section 1.1, 1.7, 1.8 and 2.5 of this Agreement are agreed to for the benefit of Merchant, White Road and Processor, and
notwithstanding the fact that Processor is not a party of this Agreement, Processor may rely upon their terms and raise them as a defense in any action.
1.9 Sale of Receipts. Merchant and White Road agree that the Purchase Price under this Agreement is in exchange for the Purchased Amount, and that
such Purchase Price is not intended to be, nor shall it be construed as a loan from White Road to Merchant. Merchant agrees that the Purchase Price is in
exchange for the Receipts pursuant to this Agreement, and that it equals the fair market value of such Receipts. White Road has purchased and shall own
all the Receipts described in this Agreement up to the full Purchased Amount as the Receipts are created. Payments made to White Road in respect to the
full amount of the Receipts shall be conditioned upon Merchant’s sale of products and services, and the payment therefore by Merchant’s customers in the
manner provided in Section 1.1. In no event shall the aggregate of all amounts or any portion thereof be deemed as interest hereunder, and in the event it
is found to be interest despite the parties hereto specifically representing that it is NOT interest, - it shall be found that no sum charged or collected
hereunder shall exceed the highest rate permissible at law. In the event that a court nonetheless determines that White Road has charged or received
interest hereunder in excess of the highest applicable rate, the rate in effect hereunder shall automatically be reduced to the maximum rate permitted by
applicable law and White Road shall promptly refund to Merchant any interest received by White Road in excess of the maximum lawful rate, it being
intended that Merchant not pay or contract to pay, and that White Road not receive or contract to receive, directly or indirectly in any manner whatsoever,
interest in excess of that which may be paid by Merchant under applicable law. Merchant is not a debtor to White Road as of the date of this Agreement.
As a result thereof, Merchant knowingly and willingly waives the defense of Usury in any action or proceeding.
1.10 Power of Attorney. Merchant irrevocably appoints White Road as its agent and attorney-in-fact with full authority to take any action or execute any
instrument or document to settle all obligations due to White Road from Processor, or in the case of a violation by Merchant of Section 1.12 or the
occurrence of an Event of Default under Section 4 hereof, from Merchant, under this Agreement, including without limitation (i) to obtain and adjust
insurance; (ii) to collect monies due or to become due under or in respect of any of the Collateral; (iii) to receive, endorse and collect any checks, notes,
drafts, instruments, documents or chattel paper in connection with clause (i) or clause (ii) above; (iv) to sign Merchant’s name on any invoice, bill of
lading, or assignment directing customers or account debtors to make payment directly to White Road; and (v) to file any claims or take any action or
institute any proceeding which White Road may deem necessary for the collection of any of the unpaid Purchased Amount from the Collateral, or
otherwise to enforce its rights with respect to payment of the Purchased Amount. In connection therewith, all costs, expenses and fees, including legal
fees, shall be payable by and from Merchant, and White Road is authorized to use Merchant’s funds to pay for same. In addition to any other remedies
available for violation of the Merchant’s Contractual Covenants, in the event that Merchant changes or permits the change of the Processor accepted by
White Road or utilizes the services of an additional Processor, White Road shall have the right, without waiving any of its rights or remedies and without
notice to Merchant or Principal(s), to notify the new or additional Processor of the sale of the Specified Amount of Future Receivables hereunder and to
direct such new or additional Processor to make payment to White Road of all or any portion of the amounts received or held by such Processor for or on
behalf of Merchant to pay any amounts White Road is entitled to receive hereunder. Merchant hereby grants White Road an irrevocable power of
attorney, which power of attorney shall be coupled with an interest, and hereby appoints White Road and its designees as Merchant’s attorney-in-fact, to
take any and all actions necessary and appropriate to direct such new or additional Processor to make payment to White Road as contemplated by this
Section. Merchant further hereby grants White Road an irrevocable power of attorney, which power of attorney shall be coupled with an interest, and
hereby appoints White Road and its designees as Merchant’s attorney-in-fact, to execute any all documents in the Merchant’s name sufficient to provide
and perfect any security interest granted by Merchant to White Road hereunder, including but not limited to security interests in motor vehicles and real
estate.
1.11 Protections against Default. The following Protections 1 through 8 may be invoked by White Road immediately and without notice to Merchant in
the event: (a) Merchant takes any action to discourage the use of electronic check processing that are settled through Processor, or permits any event to
occur that could have an adverse effect on the use, acceptance, or authorization of checks or other payments or deposits for the purchase of Merchant’s
services and products including but not limited to direct deposit of any checks into a bank account without scanning into the White Road electronic check
processor; (b) Merchant changes its arrangements with Processor in any way that is adverse or unacceptable to White Road; (c) Merchant changes the
electronic check processor through which the Receipts are settled from Processor to another electronic check processor, or permits any event to occur that
could cause diversion of any of Merchant’s check or deposit transactions to another processor or an unauthorized depository account; (d) Merchant
interrupts the operation of this business (other than adverse weather, natural disasters or acts of God), transfers, moves, sells, disposes, or otherwise
conveys its business and/or assets without (i) the express prior written consent of White Road, and (ii) the written agreement of any purchaser or
transferee to the assumption of all of Merchant’s obligations under this Agreement pursuant to documentation satisfactory to White Road; (e) Merchant
takes any action, fails to take any action, or offers any incentive—economic or otherwise—the result of which will be to induce any customer or
customers to pay for Merchant’s services with any means other than payments, checks or deposits that are settled through Processor or (f) Merchant enters
into any agreement with any third person or entity that relates to the Receipts or any portion thereof, whether in the form of a purchase, sale, loan, pledge
or the granting of any security interest in the Receipts or any portion thereof These protections are in addition to any other remedies available to White
Road at law, in equity or otherwise pursuant to this Agreement.
Protection 1. The full uncollected Purchase Amount plus all fees (including legal fees) due under this Agreement and the attached Security Agreement
become due and payable in full immediately.
Protection 2. White Road may enforce the provisions of the Personal Guaranty of Performance against the Guarantor(s).
Merchant #1 Initials: _______ Page 5 of 20
202405151623 IndexNO.
INDEX #: E2024008225
E2024008225
FILED: MONROE
DocuSign Envelope COUNTY CLERK 05/15/2024 03:08
ID: 232E552F-2A35-462F-A6FC-821D8C4E5101 Agent Name: PM
ISO - Sienna Marketing & Consulting Inc (Creative Capital)
NYSCEF DOC.
Protection NO. 2
3. Merchant agrees to execute affidavit(s) of Confession of Judgment in favor of White Road in the RECEIVED NYSCEF:
amount of Purchase Amount05/15/2024
stated in the
Agreement. Merchant also hereby authorizes White Road to execute in the name of the Merchant affidavit(s) of Confession of Judgment in favor of White
Road in the amount of Purchase Amount stated in the Agreement. Upon breach of any provision in this paragraph 1.11, White Road may, without further
notice, enter judgment against Merchant(s) and Owner(s)/Guarantor(s) with the judgment clerk of any appropriate court based upon the affidavit(s) of
judgment by confession previously executed by Merchant(s) and Owner(s)/Guarantor(s).
Protection 4. White Road may enforce its security interest in the Collateral identified in the Security Agreement hereof.
Protection 5. The entire Purchase Amount and all fees (including legal fees) shall become immediately refundable and payable to White Road from
Merchant.
Protection 6. White Road may proceed to protect and enforce its rights and remedies by lawsuit. In any such lawsuit, under which White Road shall
recover Judgment against Merchant, Merchant shall be liable for all of White Road’s costs of the lawsuit, including but not limited to all reasonable
attorneys’ fees and court costs. White Road reserves the right to apply amounts received by it under this Agreement to any fees or other charges due to
White Road from Merchant prior to applying such amounts to reduce the amount of any outstanding Purchase Amount.
Protection 7. This Agreement shall be deemed Merchants Assignment of Merchant’s Lease of Merchant’s business premises to White Road. Upon
breach of any provision in this Agreement, White Road may exercise its rights under this Assignment of Lease without prior Notice to Merchant.
Protection 8. White Road may debit Merchant’s depository accounts wherever situated by means of ACH debit or facsimile White Road on a
computer-generated check drawn on Merchant’s bank account or otherwise for all sums due to White Road.
1.12 Protection of Information. Merchant and each person signing this Agreement on behalf of Merchant and/or as Owner or Guarantor, in respect of
himself or herself personally, authorizes White Road, its agents and employees to obtain and disclose information concerning Merchant’s and each
Owner’s and each Guarantor’s credit standing (including credit bureau reports that White Road obtains) and business conduct only to it employees.
agents, affiliates, subsidiaries, and credit reporting bureaus. Merchant and each Owner and each Guarantor hereby and each waives to the maximum
extent permitted by law any claim for damages against White Road or any of its affiliates relating to any (i) investigation undertaken by or on behalf of
White Road as permitted by this Agreement or (ii) disclosure of information as permitted by this Agreement.
1.13 Confidentiality. Merchant understands and agrees that the terms and conditions of the products and services offered by White Road, including this
Agreement and any other White Road documentations (collectively, “Confidential Information”) are proprietary and confidential information of White
Road. Accordingly unless disclosure is required by law or court order, Merchant shall not disclose Confidential Information of White Road to any person
other than an attorney, accountant, financial advisor or employee of Merchant who needs to know such information for the purpose of advising Merchant
(“Advisor”), provided such Advisor uses such information solely for the purpose of advising Merchant and first agrees in writing to be bound by the terms
of this section. A breach hereof entitles White Road to not only damages and legal fees but also to both a Temporary Restraining Order and a Preliminary
Injunction without Bond or Security.
1.14 Publicity. Merchant and each of Merchant’s Owners and all Guarantors hereto all hereby authorizes White Road to use its, his or her name in listings
of clients and in advertising and marketing materials.
1.15 D/B/A’s. Merchant hereby acknowledges and agrees that White Road may be using “doing business as” or “d/b/a” names in connection with various
matters relating to the transaction between White Road and Merchant, including the filing of UCC-1 financing statements and other notices or filings.
1.16 Purchase of Increments. In the event that White Road offers to purchase additional Receipts in the "increments' stated on Attachment A of this
Agreement, then White Road reserves the unilateral right to delay or rescind such offer in its sole and absolute discretion at any time.
1.17 Sharing of Information. Merchant hereby authorizes White Road to share information regarding Merchant’s performance under this Agreement
with affiliates and unaffiliated third parties.
II. REPRESENTATIONS, WARRANTIES AND COVENANTS
Merchant represents warrants and covenants that, as of this date and during the term of this Agreement, and until White Road is fully paid:
2.1 Financial Condition and Financial Information. Merchant’s and Guarantors’ bank and financial Statements, copies of which have been furnished to
White Road, and future statements which will be furnished hereafter at the discretion of White Road, fairly represent the financial condition of Merchant
at such dates, and since those dates there has been no material adverse changes, financial or otherwise, in such condition, operation or ownership of
Merchant. Merchant and Guarantors have a continuing, affirmative obligation to advise White Road of any material adverse change in their financial
condition, operation or ownership. Merchant hereby warrants that its Average Monthly Revenue as enumerated on page (1) of this Agreement is accurate,
and that any and all cash advances or loans outstanding by Merchant have be disclosed to White Road. White Road may request statements at any time
during the performance of this Agreement and the Merchant and Guarantors shall provide them to White Road within 5 business days. Merchant’s or
Guarantors’ failure to do so is a material breach of this Agreement.
2.2 Governmental Approvals. Merchant is in compliance and shall comply with all laws and has valid permits, authorizations and licenses to own,
operate and lease its properties and to conduct the business in which it is presently engaged and/or will engage in hereafter.
2.3 Authorization. Merchant, and the person(s) signing this Agreement on behalf of Merchant, have full power and authority to incur and perform the
obligations under this Agreement, all of which have been duly authorized.
2.4 Insurance. Merchant will maintain business-interruption insurance naming White Road as loss payee and additional insured in amounts and against
risks as are satisfactory to White Road and shall provide White Road proof of such insurance upon request. Merchant shall also maintain such other
insurance in such amounts and against such risks as White Road deems necessary to protect Merchant’s business, and Merchant shall provide proof of
such insurance to White Road upon demand.
Merchant #1 Initials: _______ Page 6 of 20
202405151623 IndexNO.
INDEX #: E2024008225
E2024008225
FILED: MONROE
DocuSign Envelope COUNTY CLERK 05/15/2024 03:08
ID: 232E552F-2A35-462F-A6FC-821D8C4E5101 Agent Name: PM
ISO - Sienna Marketing & Consulting Inc (Creative Capital)
NYSCEF DOC.Check
2.5 Electronic NO.Processing
2 RECEIVED
Agreement. Merchant will not change its processor, add terminals, change its NYSCEF:
financial institution or bank05/15/2024
account(s)or
take any other action that could have any adverse effect upon Merchant’s obligations under this Agreement, without White Road’s prior written consent.
Any such changes shall be a material breach of this Agreement.
2.6 Change of Name or Location and Related Entities. Merchant will not conduct Merchant’s businesses under any name other than as disclosed to the
Processor and White Road, nor shall Merchant change any of its places of business without prior written consent by White Road. Merchant does not and
shall not conduct Merchant’s business under any name other than as set forth in this agreement and shall not change its place of business. Merchant shall
not change its legal name, entity type or jurisdiction of organization. In the event Merchant, any of its officers or directors or any Owner/Guarantor,
during the term of this agreement or while Merchant remains liable to White Road for any obligations under this agreement, directly or indirectly,
including acting by, through or in conjunction with any other person, causes to be formed a new entity, otherwise becomes associated with any new or
existing entity, or was and/or is associated with an existing entity, whether corporate, partnership, limited liability company or otherwise, which operates
a business similar to or competitive with that of Merchant, such entity shall be deemed to have expressly assumed the obligations due White Road under
this Agreement. With respect to any such entity, White Road shall have the right to name such newly formed or existing entity as a debtor in any claim,
suit, or legal proceeding.
2.7 Daily Batch Out. Merchant will batch out receipts with the Processor on a daily basis.
2.8 Estoppel Certificate. Merchant will at every and all times, and from time to time, upon at least one (1) day’s prior notice from White Road to
Merchant, execute, acknowledge and deliver to White Road and/or to any other person, firm or corporation specified by White Road, a statement
certifying that this Agreement is unmodified and in full force and effect (or, if there have been modifications, that the same is in full force and effect as
modified and stating the modifications) and stating the dates which the Purchased Amount or any portion thereof has been repaid.
2.9 No Bankruptcy. As of the date of this Agreement, Merchant is not insolvent and does not contemplate and has not filed any petition for
bankruptcy protection under Title 11 of the United States Code and there has been no involuntary petition brought or pending against
Merchant. Merchant further warrants that it does not anticipate filing any such bankruptcy petition and it does not anticipate that an
involuntary petition will be filed against it.
2.10 Working Capital Funding. Merchant shall not enter into any arrangement, agreement or commitment that relates to or involves the Receipts or
future check sales, or any portion thereof, whether in the form of a purchase, sale, a loan against, collateral against or the sale or purchase of credits
against, such Receipts or future check sales, with any party other than White Road. White Road may share information regarding this Merchant
Agreement with any third party in order to determine whether Merchant is in compliance with this provision.
2.11 Unencumbered Receipts. Merchant has, and at all times will have, good, complete, unencumbered and marketable title to all Receipts, free and
clear of any and all liabilities, liens, claims, changes, 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 White Road. Without limiting the generality of the foregoing, all future Receipts purchased by White Road hereunder shall be
free and clear of any and all liens (other than White Road’s ownership rights therein) at the time they become Receivables. All amounts received by White
Road attributable to the Specified Amount of Future Receivables purchased by White Road hereunder shall arise from bona fide sales by Merchant of its
goods and services to Card holders who present their Cards as payment thereof.
2.12 Business Purpose. Merchant is a valid business in good standing under the laws of the jurisdictions in which it is organized and/or operates, and
Merchant is entering into this Agreement for business purposes and not as a consumer for personal, family or household purposes.
2.13 Defaults under Other Contracts. Merchant’s execution of, and/or performance under this Agreement, will not cause or create an event of default
by Merchant under any contract with another person or entity.
2.14 Good Faith, Best Efforts and Due Diligence. Merchant and Guarantors hereby affirm that it will conduct its business in Good Faith and will
expend its Best Efforts to maintain and grow its business, to ensure that White Road obtains the Purchased Amount. Furthermore, Merchant and
Guarantors hereby agree, warrant and represent hereby that they will constantly perform all appropriate Due Diligence and credit checks of all of the
customers’ finances, cash flow, solvency, good faith, payment histories and business reputations (the “Due Diligence Requirements”) as may suffice to
ensure any and all products and/or services provided, sold or delivered by Merchant to
Preview
FILED: MONROE COUNTY CLERK 05/15/2024 03:08 PM INDEX NO. E2024008225 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 05/15/2024 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3867597 Book Page CIVIL Return To: No. Pages: 21 STEVEN ZAKHARYAYEV 10 W37th Street, RM 602 Instrument: EXHIBIT(S) New York, NY 10018 Control #: 202405151623 Index #: E2024008225 Date: 05/15/2024 White Road Capital LLC D/B/A GFE Holdings Time: 3:45:31 PM JULIENCRUZ LLC DEMERS, ROSS JULIEN Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 202405151623 Index # INDEX : E2024008225 NO. E2024008225 FILED: MONROE DocuSign Envelope COUNTY CLERK 05/15/2024 03:08 PM ID: 232E552F-2A35-462F-A6FC-821D8C4E5101 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 05/15/2024 MERCHANT CONTRACT: JULIENCRUZ LLC I hereby certify that ISO - Sienna Marketing & Consulting Inc (Creative Capital) (“Agent”) acted as a Merchant’s agent. Completed and attested by: {{ ds_merchant_title_sign_1 }} 06/08/2023 Agent Name: ISO - Sienna Marketing & Consulting Inc (Creative Capital) 202405151623 IndexNO. INDEX #: E2024008225 E2024008225 FILED: MONROE DocuSign Envelope COUNTY CLERK 05/15/2024 03:08 ID: 232E552F-2A35-462F-A6FC-821D8C4E5101 Agent Name: PM ISO - Sienna Marketing & Consulting Inc (Creative Capital) NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 05/15/2024 27-01 Queens Plaza North, Suite 802, Long Island City, NY 11101 Tel: 1-877-253-7686, Fax: 718-504-3736 Website: www.globalfundingexperts.com / Email: underwriting@globalfundingexperts.com __________________________________________________________________________________________________________________________________________ MERCHANT AGREEMENT Agreement dated _____06/08/2023_____ between White Road Capital LLC, Series: 203762, D/B/A: GFE Holdings ("White Road") and the Merchant listed below ("MERCHANT") (Month) (Day) (Year) MERCHANT INFORMATION Merchant’s Legal Name: JULIENCRUZ LLC D/B/A: JULIENCRUZ LLC State of Incorporation / Organization: TX Type of Business Entity: LLC Federal EIN: 844202731 Physical Address: 2719 CREST RIDGE DRIVE, Dallas, TX, 75228 Mailing Address: 2719 CREST RIDGE DRIVE, Dallas, TX, 75228 Primary Contact & Number: ROSS JULIEN DEMERS PURCHASE AND SALE OF FUTURE RECEIVABLES Merchant (“Merchant”), in consideration of the funds provided to Merchant by White Road as specified below (“Purchase Price”), hereby sells, assigns and transfers to White Road (making White Road the absolute owner) the Specified Percentage indicated below of all of Merchant’s future accounts, contract rights and other entitlements arising from or relating to the payment of monies from Merchant’s customers’ and/or other third party payors (the “Receipts”) defined as all payments made by cash, check, electronic transfer or other form of monetary payment in the ordinary course of the Merchant’s business, for the payments due to Merchant as a result of Merchant’s sale of goods or services (the “Transactions”) until the amount specified below (the “Purchased Amount”) has been delivered by or on behalf of Merchant to White Road. The Purchased Amount shall be paid to White Road by Merchant irrevocably directing and authorizing that there be only one depositing bank account, which account must be acceptable to and pre-approved by White Road (the “Account”) into which Merchant and Merchant’s customers shall remit the percentage specified below (the “Specified Percentage”) of the Merchant’s settlement amounts due from each Transaction, until such time as White Road receives payment in full of the Purchased Amount. Merchant hereby authorizes White Road to ACH Debit the specified remittances from the Merchant’s Account on the frequency outlined herein below in the “Specified Remittance Amount & Frequency” box and will provide White Road with all required access codes and monthly bank statements. Merchant understands that it is responsible for ensuring that the Specified Percentage to be debited by White Road remains in the Account and will be held responsible for any fees incurred by White Road resulting from a rejected ACH attempt or an event of default. (See Appendix A) White Road is not responsible for any overdrafts or rejected transactions that may result from White Road’s ACH debiting the specified amounts under the terms of this agreement. White Road will debit the specified remittance amount during a business day based on the frequency outlined herein below in the “Specified Remittance Amount & Frequency” box. The Merchant shall deliver to White Road, no later than the 18th date of each month the bank statement for the Account in respect of the immediately preceding month. Within three business days of White Road’s receipt of the Merchant’s monthly bank statements, White Road shall reconcile the Merchant’s Account by either crediting or debiting the difference from or back to the Merchant’s Account so that the amount debited per month equals the Specified Percentage. If the Merchant fails to deliver the bank statement for the Account for any month, White Road shall consider that the specific remittances were equal to the Specified Percentage of the settlement amount due from each Transaction for such month. White Road may, upon Merchant’s request, adjust the amount of any payment due under this Agreement at White Road’s sole discretion and as it deems appropriate. Notwithstanding anything to the contrary in this Agreement or any other agreement between White Road and Merchant, upon the violation of any provision contained in Section 1.11 of the MERCHANT AGREEMENT TERMS AND CONDITIONS or the occurrence of an Event of Default under Section 3 of the MERCHANT AGREEMENT TERMS AND CONDITIONS, the Specified Percentage shall equal 100%. A list of all fees applicable under this Agreement is contained in Appendix A. ORIGINAL OFFER: Total Purchase Price: $190,000.00 Merchant’s Average Monthly Revenue: $163,244.90 Purchased Amount of Receivables: $265,810.00 Specified Percentage of Monthly Revenue: 21% Total Fees*: $0.00 Specified Remittance Amount & Frequency: $1,599.00 / Daily Net Funded Amount**: $190,000.00 Initial Estimated # of Remittance Payments: 167 * This amount reflects the total fees Merchant will pay at funding. See Appendix A for a complete breakdown of fees. ** This amount reflects the total funds Merchant will receive after all the fees and balance transfers are deducted from the Total Purchase Price. See Balance Transfer Form for a complete breakdown of the remaining RTR balances. *** If an Early Payment Addendum has been executed by White Road and the Merchant, the promotional early termination discount referenced above shall be applicable subject to the terms and conditions set forth in the Early Payment Addendum. The Total Purchase Price may also be paid incrementally over time, in the increments and in the Specific Remittance Amounts set forth in the Attachment A Addendum annexed hereto. Merchant #1 Initials: _______ Page 2 of 20 202405151623 #: E2024008225 Index NO. INDEX E2024008225 FILED: MONROE uucuo yn coveiope COUNTY CLERK 05/15/2024 03:08 ID: 232E552F-2A35-462F-A6FC-821D8C4E5101 PM- Sienna Agent Name:ISO & Marketing () THEMERCHANT NYSCEF DOC. NO.AGREEMENT 2 A ND TERMS CONDITIONS S ET FORTH ON PAGE 2, THE "SECURITY AGREEMENT AND GUARANTY" RECEIVED AND NYSCEF: THE 05/15/2024 "ADMINISTRATIVE FORM HEREOF,AREALL HEREBYINCORPORATED IN ANDMADE A PARTOFTHIS MERCHANT AGREEMENT. BYSIGNING BELOW, M ERCHANT HEREBY AND REPRESENTS WARRANTS THATNOTHING CONTAINED HEREINIS FALSE,MISLEADING, AND THAT MERCHANT HASNOT FAILED TO DISCLOSEANY MATERIALINFORMATION TOOBTAIN FUNDING FROM White Road. DocuSigned by: Full Name: ROSSJULIENDEMERS HomeAddress: 2719CREST RIDGE DRIVE17350 HWY STATE 249STE220,HOUSTON, TX77064, Dallas, TX,75228 Title Sole Member Cell Phone Number: 2146358364 Social Security No: Home Secondary Number: 2146358364 or Driver License No: Email: demersross@yahoo.com DocuSigned by: Full Name: ROSSJULIENDEMERS HomeAddress: 2719CREST RIDGE DRIVE17350 HWY STATE 249STE220,HOUSTON, TX77064, Dallas, TX,75228 Title Sole Member Cell Phone Number: 2146358364 Social Security No: Home Secondary Number: 2146358364 or Driver License No: Email: demersross@yahoo.com White Road Capital LLC, Series: 203762, D/B/A: GFEHoldings By: (Company Officer) DS Merchant #1 Initials: Page 3 of 20 202405151623 IndexNO. INDEX #: E2024008225 E2024008225 FILED: MONROE DocuSign Envelope COUNTY CLERK 05/15/2024 03:08 ID: 232E552F-2A35-462F-A6FC-821D8C4E5101 Agent Name: PM ISO - Sienna Marketing & Consulting Inc (Creative Capital) NYSCEF DOC. NO. 2 MERCHANT AGREEMENT TERMS AND CONDITIONSRECEIVED NYSCEF: 05/15/2024 I. TERMS OF ENROLLMENT IN PROGRAM 1.1 Merchant Deposit Agreement. Merchant shall execute an agreement (the “Merchant Deposit Agreement”) acceptable to White Road with a Bank acceptable to White Road to obtain electronic fund transfer services for the Merchant’s account at the Bank approved by White Road (the “Account”). Merchant shall provide White Road and/or its authorized agent(s) with all of the information, authorizations and passwords necessary for verifying Merchant’s receivables, receipts, deposits and withdrawals into and from the Account. Merchant hereby authorizes White Road and/or its agent(s) to deduct from the Account the amounts owed to White Road for the receipts as specified herein and to pay such amounts to White Road. Merchant also hereby authorizes White Road to withdraw from the Account the Specified Percentage(s) and/or sums by White Road debiting the account. These authorizations apply not only to the approved Account but also to any subsequent or alternate account used by the Merchant for these deposits, whether pre-approved by White Road or not. This additional authorization is not a waiver of White Road’s entitlement to declare this Agreement breached by Merchant as a result of its usage of an account which White Road did not first pre-approve in writing prior to Merchant’s usage thereof. The aforementioned authorizations shall be irrevocable without the written consent of White Road. Merchant understands and agrees that this Agreement, including the authorizations to access Merchant`s accounts (including the Account) set forth herein, as well as all other payment processing agreements entered into with respect to the Transactions irrevocably authorize the processor of such payments (the “Processor”) and Operator to pay the cash attributable to the Specified Percentage of Receivables to White Road rather than to Merchant until White Road receives the cash attributable to the entire Specified Amount of Future Receivables from Processor and Operator. Merchant and Guarantor(s) authorize White Road and its agents: i) to investigate Merchant’s financial status and history, and will provide to White Road any authorizations, bank or financial statements, tax returns, etc., as White Road deems necessary in its sole and absolute discretion prior to or at any time after execution of this Agreement. and ii) to update such information and financial and credit profiles from time to time as White Road deems appropriate. Merchant hereby authorizes all of its banks, brokers, processors and customers to provide White Road with Merchant's bank statements, brokerage statements, processing history and such other statements and information as White Road may in its sole discretion require to determine Merchant’s and Guarantor’s qualification or continuation in this program and for collections purposes. Merchant shall provide White Road with copies of any documents related to Merchant's card processing activity or financial and banking affairs within five days after a request from White Road. These authorizations and instructions may be revoked only with the prior written consent of White Road. Merchant agrees that Processor and Operator may rely upon the instructions of White Road, without any independent verification, in making the cash payments above. Merchant waives any claim for damages it may have against Processor or Operator in connection with actions taken based on instructions from White Road, unless such damages were due to such Processor`s or Operator`s failure to follow White Road`s instructions. Merchant acknowledges and agrees that (a) Processor and Operator will be acting on behalf of White Road with respect to the specified Percentage of Receivables until cash attributable to the entire Specified Amount of Future Receivables has been remitted by Processor and Operator to White Road, (b) Processor and Operator may or may not be affiliates of White Road, (c) White Road does not have any power or authority to control Processor`s or Operator`s actions with respect to the processing of Card transactions or remittance of cash to White Road, (d) White Road is not responsible and shall not be liable for, and Merchant agrees to hold White Road harmless for, the actions of Processor and Operator, and (e) funds representing the Specified Percentage of Receivables in the possession of Processing or Operator constitute property owned solely by White Road, and Merchant disclaims any and all interest therein. For purposes of this Agreement, the term “Operator” shall mean White Road or any person or entity designated by White Road to debit or otherwise withdraw (via the Automated Clearing House (“ACH”) system, electronic checks, wires, or otherwise) any amounts from Merchant`s or principal(s) accounts as authorized or permitted by this Agreement. 1.2 Term of Agreement. This Agreement shall remain in full force and effect until the entire “Purchased Amount” is received by White Road as per the terms of this Agreement. The termination of this Agreement shall not affect Merchant’s continuing obligation and responsibility to fully satisfy all outstanding obligations that are due to White Road. 1.3 Future Purchases. White Road reserves the right to rescind the offer to make any purchase payments hereunder, in its sole and absolute discretion. 1.4 Financial Condition. Merchant and Guarantor(s) (as hereinafter defined) authorize White Road, its agents and representatives, as well as any credit reporting agency engaged by White Road, i) to investigate their financial responsibility and history, including any references given or any other statements or data obtained from or about Merchant or any of the Guarantor(s); ii) to obtain consumer and business credit reports on the Merchant and Guarantor(s); iii) to contact any current or prior bank of the Merchant in order to obtain whatever information it may require regarding any and all of Merchant’s transactions with any such bank, including, but not limited to applications, bank statements, financial statements and tax returns; and (iv) to contact personal and business references provided by the Merchant or Guarantor(s), at any time now or for so long as Merchant and/or Guarantor(s) continue to have any obligation owed to White Road as a consequence of this Merchant Agreement or for White Road's ability to determine Merchant’s eligibility to enter into any future agreement with White Road. Merchant and Guarantor(s) will further provide to White Road any authorizations, bank or financial statements, tax returns, etc., as White Road deems necessary in its sole and absolute discretion prior to or at any time after execution of this Agreement. A photocopy of this authorization will be deemed as acceptable as an authorization for release of financial and credit information. White Road is authorized to update such information and financial and credit profiles from time to time as it deems appropriate. Merchant and Guarantor(s) acknowledge and agree that all information (financial and other) provided by or on behalf of Merchant and Guarantor(s) has been relied upon to White Road in connection with its decision to purchase the Specified Amount of Future Receivables from Merchant. 1.5 Transactional History. Merchant authorizes all of their banks and brokers to provide White Road with Merchant’s banking, brokerage and/or processing history to determine qualification or continuation in this program. Merchant herby (i) authorizes White Road to contact any past, present or future processor of Merchant, its predecessors or affiliates, to obtain any information that White Road deems necessary or appropriate regarding any of their transactions with such processors, and (ii) authorizes and directs such processors to provide White Road with all such information in compliance with this Section. Such information may include information to verify the amount of Card receivables previously processed on behalf of Merchant, its predecessors or affiliates, and any amounts that may have been paid to, offset, held or reversed by, such processors. Without limiting the generality of the foregoing, Merchant authorizes White Road to contact any past, present or future processor of Merchant, its predecessors or affiliates, to confirm that Merchant is exclusively using the Processor accepted by White Road in accordance with this Agreement. Merchant #1 Initials: _______ Page 4 of 20 202405151623 IndexNO. INDEX #: E2024008225 E2024008225 FILED: MONROE DocuSign Envelope COUNTY CLERK 05/15/2024 03:08 ID: 232E552F-2A35-462F-A6FC-821D8C4E5101 Agent Name: PM ISO - Sienna Marketing & Consulting Inc (Creative Capital) NYSCEF DOC. NO.Merchant 1.6 Indemnification. 2 RECEIVED and Guarantor(s) jointly and severally indemnify and hold harmless Processor and NYSCEF: Operator, their respective05/15/2024 officers, directors, affiliates, employees, agents, representatives and shareholders against all losses, damages, claims, liabilities and expenses (including reasonable attorney’s fees) suffered or incurred by Processor or Operator resulting from (a) claims asserted by White Road for monies owed to White Road from Merchant and (b) actions taken by Processor in reliance upon any fraudulent, misleading or deceptive information or instructions provided by White Road. 1.7 No Liability. In no event will Processor, Operator or White Road be liable for any claims asserted by Merchant or Guarantors under any legal theory or 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 is waived by both Merchant and Guarantor(s). In the event these claims are nonetheless raised, Merchant and Guarantors will be jointly liable for all of White Road’s legal fees and expenses resulting therefrom. 1.8 Reliance on Terms. Section 1.1, 1.7, 1.8 and 2.5 of this Agreement are agreed to for the benefit of Merchant, White Road and Processor, and notwithstanding the fact that Processor is not a party of this Agreement, Processor may rely upon their terms and raise them as a defense in any action. 1.9 Sale of Receipts. Merchant and White Road agree that the Purchase Price under this Agreement is in exchange for the Purchased Amount, and that such Purchase Price is not intended to be, nor shall it be construed as a loan from White Road to Merchant. Merchant agrees that the Purchase Price is in exchange for the Receipts pursuant to this Agreement, and that it equals the fair market value of such Receipts. White Road has purchased and shall own all the Receipts described in this Agreement up to the full Purchased Amount as the Receipts are created. Payments made to White Road in respect to the full amount of the Receipts shall be conditioned upon Merchant’s sale of products and services, and the payment therefore by Merchant’s customers in the manner provided in Section 1.1. In no event shall the aggregate of all amounts or any portion thereof be deemed as interest hereunder, and in the event it is found to be interest despite the parties hereto specifically representing that it is NOT interest, - it shall be found that no sum charged or collected hereunder shall exceed the highest rate permissible at law. In the event that a court nonetheless determines that White Road has charged or received interest hereunder in excess of the highest applicable rate, the rate in effect hereunder shall automatically be reduced to the maximum rate permitted by applicable law and White Road shall promptly refund to Merchant any interest received by White Road in excess of the maximum lawful rate, it being intended that Merchant not pay or contract to pay, and that White Road not receive or contract to receive, directly or indirectly in any manner whatsoever, interest in excess of that which may be paid by Merchant under applicable law. Merchant is not a debtor to White Road as of the date of this Agreement. As a result thereof, Merchant knowingly and willingly waives the defense of Usury in any action or proceeding. 1.10 Power of Attorney. Merchant irrevocably appoints White Road as its agent and attorney-in-fact with full authority to take any action or execute any instrument or document to settle all obligations due to White Road from Processor, or in the case of a violation by Merchant of Section 1.12 or the occurrence of an Event of Default under Section 4 hereof, from Merchant, under this Agreement, including without limitation (i) to obtain and adjust insurance; (ii) to collect monies due or to become due under or in respect of any of the Collateral; (iii) to receive, endorse and collect any checks, notes, drafts, instruments, documents or chattel paper in connection with clause (i) or clause (ii) above; (iv) to sign Merchant’s name on any invoice, bill of lading, or assignment directing customers or account debtors to make payment directly to White Road; and (v) to file any claims or take any action or institute any proceeding which White Road may deem necessary for the collection of any of the unpaid Purchased Amount from the Collateral, or otherwise to enforce its rights with respect to payment of the Purchased Amount. In connection therewith, all costs, expenses and fees, including legal fees, shall be payable by and from Merchant, and White Road is authorized to use Merchant’s funds to pay for same. In addition to any other remedies available for violation of the Merchant’s Contractual Covenants, in the event that Merchant changes or permits the change of the Processor accepted by White Road or utilizes the services of an additional Processor, White Road shall have the right, without waiving any of its rights or remedies and without notice to Merchant or Principal(s), to notify the new or additional Processor of the sale of the Specified Amount of Future Receivables hereunder and to direct such new or additional Processor to make payment to White Road of all or any portion of the amounts received or held by such Processor for or on behalf of Merchant to pay any amounts White Road is entitled to receive hereunder. Merchant hereby grants White Road an irrevocable power of attorney, which power of attorney shall be coupled with an interest, and hereby appoints White Road and its designees as Merchant’s attorney-in-fact, to take any and all actions necessary and appropriate to direct such new or additional Processor to make payment to White Road as contemplated by this Section. Merchant further hereby grants White Road an irrevocable power of attorney, which power of attorney shall be coupled with an interest, and hereby appoints White Road and its designees as Merchant’s attorney-in-fact, to execute any all documents in the Merchant’s name sufficient to provide and perfect any security interest granted by Merchant to White Road hereunder, including but not limited to security interests in motor vehicles and real estate. 1.11 Protections against Default. The following Protections 1 through 8 may be invoked by White Road immediately and without notice to Merchant in the event: (a) Merchant takes any action to discourage the use of electronic check processing that are settled through Processor, or permits any event to occur that could have an adverse effect on the use, acceptance, or authorization of checks or other payments or deposits for the purchase of Merchant’s services and products including but not limited to direct deposit of any checks into a bank account without scanning into the White Road electronic check processor; (b) Merchant changes its arrangements with Processor in any way that is adverse or unacceptable to White Road; (c) Merchant changes the electronic check processor through which the Receipts are settled from Processor to another electronic check processor, or permits any event to occur that could cause diversion of any of Merchant’s check or deposit transactions to another processor or an unauthorized depository account; (d) Merchant interrupts the operation of this business (other than adverse weather, natural disasters or acts of God), transfers, moves, sells, disposes, or otherwise conveys its business and/or assets without (i) the express prior written consent of White Road, and (ii) the written agreement of any purchaser or transferee to the assumption of all of Merchant’s obligations under this Agreement pursuant to documentation satisfactory to White Road; (e) Merchant takes any action, fails to take any action, or offers any incentive—economic or otherwise—the result of which will be to induce any customer or customers to pay for Merchant’s services with any means other than payments, checks or deposits that are settled through Processor or (f) Merchant enters into any agreement with any third person or entity that relates to the Receipts or any portion thereof, whether in the form of a purchase, sale, loan, pledge or the granting of any security interest in the Receipts or any portion thereof These protections are in addition to any other remedies available to White Road at law, in equity or otherwise pursuant to this Agreement. Protection 1. The full uncollected Purchase Amount plus all fees (including legal fees) due under this Agreement and the attached Security Agreement become due and payable in full immediately. Protection 2. White Road may enforce the provisions of the Personal Guaranty of Performance against the Guarantor(s). Merchant #1 Initials: _______ Page 5 of 20 202405151623 IndexNO. INDEX #: E2024008225 E2024008225 FILED: MONROE DocuSign Envelope COUNTY CLERK 05/15/2024 03:08 ID: 232E552F-2A35-462F-A6FC-821D8C4E5101 Agent Name: PM ISO - Sienna Marketing & Consulting Inc (Creative Capital) NYSCEF DOC. Protection NO. 2 3. Merchant agrees to execute affidavit(s) of Confession of Judgment in favor of White Road in the RECEIVED NYSCEF: amount of Purchase Amount05/15/2024 stated in the Agreement. Merchant also hereby authorizes White Road to execute in the name of the Merchant affidavit(s) of Confession of Judgment in favor of White Road in the amount of Purchase Amount stated in the Agreement. Upon breach of any provision in this paragraph 1.11, White Road may, without further notice, enter judgment against Merchant(s) and Owner(s)/Guarantor(s) with the judgment clerk of any appropriate court based upon the affidavit(s) of judgment by confession previously executed by Merchant(s) and Owner(s)/Guarantor(s). Protection 4. White Road may enforce its security interest in the Collateral identified in the Security Agreement hereof. Protection 5. The entire Purchase Amount and all fees (including legal fees) shall become immediately refundable and payable to White Road from Merchant. Protection 6. White Road may proceed to protect and enforce its rights and remedies by lawsuit. In any such lawsuit, under which White Road shall recover Judgment against Merchant, Merchant shall be liable for all of White Road’s costs of the lawsuit, including but not limited to all reasonable attorneys’ fees and court costs. White Road reserves the right to apply amounts received by it under this Agreement to any fees or other charges due to White Road from Merchant prior to applying such amounts to reduce the amount of any outstanding Purchase Amount. Protection 7. This Agreement shall be deemed Merchants Assignment of Merchant’s Lease of Merchant’s business premises to White Road. Upon breach of any provision in this Agreement, White Road may exercise its rights under this Assignment of Lease without prior Notice to Merchant. Protection 8. White Road may debit Merchant’s depository accounts wherever situated by means of ACH debit or facsimile White Road on a computer-generated check drawn on Merchant’s bank account or otherwise for all sums due to White Road. 1.12 Protection of Information. Merchant and each person signing this Agreement on behalf of Merchant and/or as Owner or Guarantor, in respect of himself or herself personally, authorizes White Road, its agents and employees to obtain and disclose information concerning Merchant’s and each Owner’s and each Guarantor’s credit standing (including credit bureau reports that White Road obtains) and business conduct only to it employees. agents, affiliates, subsidiaries, and credit reporting bureaus. Merchant and each Owner and each Guarantor hereby and each waives to the maximum extent permitted by law any claim for damages against White Road or any of its affiliates relating to any (i) investigation undertaken by or on behalf of White Road as permitted by this Agreement or (ii) disclosure of information as permitted by this Agreement. 1.13 Confidentiality. Merchant understands and agrees that the terms and conditions of the products and services offered by White Road, including this Agreement and any other White Road documentations (collectively, “Confidential Information”) are proprietary and confidential information of White Road. Accordingly unless disclosure is required by law or court order, Merchant shall not disclose Confidential Information of White Road to any person other than an attorney, accountant, financial advisor or employee of Merchant who needs to know such information for the purpose of advising Merchant (“Advisor”), provided such Advisor uses such information solely for the purpose of advising Merchant and first agrees in writing to be bound by the terms of this section. A breach hereof entitles White Road to not only damages and legal fees but also to both a Temporary Restraining Order and a Preliminary Injunction without Bond or Security. 1.14 Publicity. Merchant and each of Merchant’s Owners and all Guarantors hereto all hereby authorizes White Road to use its, his or her name in listings of clients and in advertising and marketing materials. 1.15 D/B/A’s. Merchant hereby acknowledges and agrees that White Road may be using “doing business as” or “d/b/a” names in connection with various matters relating to the transaction between White Road and Merchant, including the filing of UCC-1 financing statements and other notices or filings. 1.16 Purchase of Increments. In the event that White Road offers to purchase additional Receipts in the "increments' stated on Attachment A of this Agreement, then White Road reserves the unilateral right to delay or rescind such offer in its sole and absolute discretion at any time. 1.17 Sharing of Information. Merchant hereby authorizes White Road to share information regarding Merchant’s performance under this Agreement with affiliates and unaffiliated third parties. II. REPRESENTATIONS, WARRANTIES AND COVENANTS Merchant represents warrants and covenants that, as of this date and during the term of this Agreement, and until White Road is fully paid: 2.1 Financial Condition and Financial Information. Merchant’s and Guarantors’ bank and financial Statements, copies of which have been furnished to White Road, and future statements which will be furnished hereafter at the discretion of White Road, fairly represent the financial condition of Merchant at such dates, and since those dates there has been no material adverse changes, financial or otherwise, in such condition, operation or ownership of Merchant. Merchant and Guarantors have a continuing, affirmative obligation to advise White Road of any material adverse change in their financial condition, operation or ownership. Merchant hereby warrants that its Average Monthly Revenue as enumerated on page (1) of this Agreement is accurate, and that any and all cash advances or loans outstanding by Merchant have be disclosed to White Road. White Road may request statements at any time during the performance of this Agreement and the Merchant and Guarantors shall provide them to White Road within 5 business days. Merchant’s or Guarantors’ failure to do so is a material breach of this Agreement. 2.2 Governmental Approvals. Merchant is in compliance and shall comply with all laws and has valid permits, authorizations and licenses to own, operate and lease its properties and to conduct the business in which it is presently engaged and/or will engage in hereafter. 2.3 Authorization. Merchant, and the person(s) signing this Agreement on behalf of Merchant, have full power and authority to incur and perform the obligations under this Agreement, all of which have been duly authorized. 2.4 Insurance. Merchant will maintain business-interruption insurance naming White Road as loss payee and additional insured in amounts and against risks as are satisfactory to White Road and shall provide White Road proof of such insurance upon request. Merchant shall also maintain such other insurance in such amounts and against such risks as White Road deems necessary to protect Merchant’s business, and Merchant shall provide proof of such insurance to White Road upon demand. Merchant #1 Initials: _______ Page 6 of 20 202405151623 IndexNO. INDEX #: E2024008225 E2024008225 FILED: MONROE DocuSign Envelope COUNTY CLERK 05/15/2024 03:08 ID: 232E552F-2A35-462F-A6FC-821D8C4E5101 Agent Name: PM ISO - Sienna Marketing & Consulting Inc (Creative Capital) NYSCEF DOC.Check 2.5 Electronic NO.Processing 2 RECEIVED Agreement. Merchant will not change its processor, add terminals, change its NYSCEF: financial institution or bank05/15/2024 account(s)or take any other action that could have any adverse effect upon Merchant’s obligations under this Agreement, without White Road’s prior written consent. Any such changes shall be a material breach of this Agreement. 2.6 Change of Name or Location and Related Entities. Merchant will not conduct Merchant’s businesses under any name other than as disclosed to the Processor and White Road, nor shall Merchant change any of its places of business without prior written consent by White Road. Merchant does not and shall not conduct Merchant’s business under any name other than as set forth in this agreement and shall not change its place of business. Merchant shall not change its legal name, entity type or jurisdiction of organization. In the event Merchant, any of its officers or directors or any Owner/Guarantor, during the term of this agreement or while Merchant remains liable to White Road for any obligations under this agreement, directly or indirectly, including acting by, through or in conjunction with any other person, causes to be formed a new entity, otherwise becomes associated with any new or existing entity, or was and/or is associated with an existing entity, whether corporate, partnership, limited liability company or otherwise, which operates a business similar to or competitive with that of Merchant, such entity shall be deemed to have expressly assumed the obligations due White Road under this Agreement. With respect to any such entity, White Road shall have the right to name such newly formed or existing entity as a debtor in any claim, suit, or legal proceeding. 2.7 Daily Batch Out. Merchant will batch out receipts with the Processor on a daily basis. 2.8 Estoppel Certificate. Merchant will at every and all times, and from time to time, upon at least one (1) day’s prior notice from White Road to Merchant, execute, acknowledge and deliver to White Road and/or to any other person, firm or corporation specified by White Road, a statement certifying that this Agreement is unmodified and in full force and effect (or, if there have been modifications, that the same is in full force and effect as modified and stating the modifications) and stating the dates which the Purchased Amount or any portion thereof has been repaid. 2.9 No Bankruptcy. As of the date of this Agreement, Merchant is not insolvent and does not contemplate and has not filed any petition for bankruptcy protection under Title 11 of the United States Code and there has been no involuntary petition brought or pending against Merchant. Merchant further warrants that it does not anticipate filing any such bankruptcy petition and it does not anticipate that an involuntary petition will be filed against it. 2.10 Working Capital Funding. Merchant shall not enter into any arrangement, agreement or commitment that relates to or involves the Receipts or future check sales, or any portion thereof, whether in the form of a purchase, sale, a loan against, collateral against or the sale or purchase of credits against, such Receipts or future check sales, with any party other than White Road. White Road may share information regarding this Merchant Agreement with any third party in order to determine whether Merchant is in compliance with this provision. 2.11 Unencumbered Receipts. Merchant has, and at all times will have, good, complete, unencumbered and marketable title to all Receipts, free and clear of any and all liabilities, liens, claims, changes, 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 White Road. Without limiting the generality of the foregoing, all future Receipts purchased by White Road hereunder shall be free and clear of any and all liens (other than White Road’s ownership rights therein) at the time they become Receivables. All amounts received by White Road attributable to the Specified Amount of Future Receivables purchased by White Road hereunder shall arise from bona fide sales by Merchant of its goods and services to Card holders who present their Cards as payment thereof. 2.12 Business Purpose. Merchant is a valid business in good standing under the laws of the jurisdictions in which it is organized and/or operates, and Merchant is entering into this Agreement for business purposes and not as a consumer for personal, family or household purposes. 2.13 Defaults under Other Contracts. Merchant’s execution of, and/or performance under this Agreement, will not cause or create an event of default by Merchant under any contract with another person or entity. 2.14 Good Faith, Best Efforts and Due Diligence. Merchant and Guarantors hereby affirm that it will conduct its business in Good Faith and will expend its Best Efforts to maintain and grow its business, to ensure that White Road obtains the Purchased Amount. Furthermore, Merchant and Guarantors hereby agree, warrant and represent hereby that they will constantly perform all appropriate Due Diligence and credit checks of all of the customers’ finances, cash flow, solvency, good faith, payment histories and business reputations (the “Due Diligence Requirements”) as may suffice to ensure any and all products and/or services provided, sold or delivered by Merchant to