Preview
FILED: KINGS COUNTY CLERK 12/05/2022 04:06 PM INDEX NO. 535349/2022
DocuSign Envelope ID: D82D4E36-23DA-48AC-8C50-300F4F1C6492
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/05/2022
01/20/2022
Agreement date: ____________________
JR TRUCKING & CONSTRUCTION LLC
Merchant’s name: _______________________________________________________
JR TRUCKING & CONSTRUCTION
Merchant’s d/b/a: _______________________________________________________
limited liability company
Type of entity: ____________________________ EIN: ________
160 MAGNOLIA DR
Business street address: _________________________________________________
GREENEVILLE TN 37743
Business city: ____________________ Business state: _____ Business zip: ________
160 MAGNOLIA DR
Contact street address: ___________________________________________________
GREENEVILLE TN 37743
Contact city: _____________________ Contact state: ______ Contact zip: __________
E-mail address: ____________
17,000.00
Purchase Price: $ _________________
(this is the amount being paid to the merchant before any deductions are made)
25,483.00
Receivables Purchased Amount: $ _________________
(this is the total amount the merchant must pay)
25
Specified Percentage: ______ %
(this is the percentage of the merchant’s receipts to be debited)
15,300.00
Net Funds Provided: $ _________________
(this is the amount being funded after deducting fees, but not payoffs)
637.07 day
Initial Estimated Payment: $ _________________ Frequency: _________________
1,700.00
Origination Fee: $ _________________
(dollar amount or a percentage, such as “up to 10% of Purchase Price”)
REBECCA LEE REED OWNER
Signer #1 Full Name: ________________________ Signer #1 Title: _______________
Signer #1 social security #: Signer #1 driver’s license #: _____________
Signer #2 Full Name: ________________________ Signer #2 Title: _______________
Signer #2 social security #: ____________ Signer #2 driver’s license #: _____________
JR TRUCKING & CONSTRUCTION
Bank Name: ___ Bank Account Name: _____________________
Account #: __________ Routing #: __________
Bank Portal Website: ____________________________________________________
Username: ________________________ Password: ___________________________
Security Question/Answer #1: _____________________________________________
Security Question/Answer #2: _____________________________________________
Security Question/Answer #3: _____________________________________________
Any other information to access bank account: ________________________________
Payoff Amount: $ _________________ Payoff Recipient: ________________________
Reason for Payoff: ______________________________________________________
FILED: KINGS COUNTY CLERK 12/05/2022 04:06 PM INDEX NO. 535349/2022
DocuSign Envelope ID: D82D4E36-23DA-48AC-8C50-300F4F1C6492
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/05/2022
Page 1 of 16
1370 Broadway, New York, NY 10018
STANDARD MERCHANT CASH ADVANCE AGREEMENT
01/20/2022
This is an Agreement dated __________________ by and between CAPIFI LLC (“CAP”) and each merchant
listed below (“Merchant”).
Merchant’s Legal Name: _____________________________________________________________________________
JR TRUCKING & CONSTRUCTION LLC
D/B/A/: ________________________________________________________
JR TRUCKING & CONSTRUCTION Fed ID #: ____________
Type of Entity: limited liability company
Business Address: ____________________________________
160 MAGNOLIA DR City: _______________
GREENEVILLE State: _______
TN Zip: _________
37743
Contact Address: _____________________________________
160 MAGNOLIA DR City: _______________
GREENEVILLE State: _______
TN Zip: _________
37743
E-mail Address: __________________
Purchase Price
This is the amount being paid to Merchant(s) for the Receivables Purchased Amount
(defined below).
17,000.00
$ _____________________
Receivables Purchased Amount
This is the amount of Receivables (defined in Section 1 below) being sold.
25,483.00
$ _____________________
Specified Percentage
This is the percentage of Receivables (defined below) to be delivered until the
Receivables Purchased Amount is paid in full. 25
______ %
Net Funds Provided
This is the net amount being paid to or on behalf of Merchant(s) after deduction of
applicable fees listed in Section 2 below. 15,300.00
$ _____________________
Initial Estimated Payment
This is only applicable if an Addendum for Estimated Payments is being signed. This is
the initial amount of periodic payments collected from Merchant(s) as an approximation 637.07
$ _____________________
of no more than the Specified Percentage of the Receivables and is subject to
reconciliation as set forth in Section 4 below. day
per ___________________
TERMS AND CONDITIONS
1. Sale of Future Receipts. Merchant(s) hereby sell, assign, and transfer to CAP (making CAP the absolute owner)
in consideration of the funds provided (“Purchase Price”) specified above, all of each Merchant’s future accounts, contract
rights, and other obligations arising from or relating to the payment of monies from each Merchant’s customers and/or other
third party payors (the “Receivables”, defined as all payments made by cash, check, credit or debit card, electronic transfer,
or other form of monetary payment in the ordinary course of each merchant’s business), for the payment of each Merchant’s
sale of goods or services until the amount specified above (the “Receivables Purchased Amount”) has been delivered by
Merchant(s) to CAP. Each Merchant hereby acknowledges that until the Receivables Purchased Amount has been received
in full by CAP, each Merchant’s Receivables, up to the balance of the Receivables Purchased Amount, are the property of
CAP and not the property of any Merchant. Each Merchant agrees that it is a fiduciary for CAP and that each Merchant will
hold Receivables in trust for CAP in its capacity as a fiduciary for CAP.
The Receivables Purchased Amount shall be paid to CAP by each Merchant irrevocably authorizing only one
depositing account acceptable to CAP (the “Account”) to remit the percentage specified above (the “Specified Percentage”)
I have read and agree to the terms and conditions set forth above:
_______________________________________________________________________
1/20/2022
Name: _________________________
REBECCA LEE REED Title: ________________
OWNER Date: ______________
FILED: KINGS COUNTY CLERK 12/05/2022 04:06 PM INDEX NO. 535349/2022
DocuSign Envelope ID: D82D4E36-23DA-48AC-8C50-300F4F1C6492
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/05/2022
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STANDARD MERCHANT CASH ADVANCE AGREEMENT
of each Merchant’s settlement amounts due from each transaction, until such time as CAP receives payment in full of the
Receivables Purchased Amount. Each Merchant hereby authorizes CAP to ACH debit the specified remittances from the
Account on a daily basis as of the next business day after the date of this Agreement and will provide CAP with all required
access codes and monthly bank statements. Each Merchant understands that it willbe held responsible for any fees
resulting from a rejected ACH attempt or an Event of Default (see Section 2). CAP is not responsible for any overdrafts or
rejected transactions that may result from CAP's ACH debiting the Specified Percentage amounts under the terms of this
Agreement.
2. Additional Fees. In addition to the Receivables Purchased Amount, each Merchant will be held responsible to
CAP for the following fees, where applicable:
A. $_____________________
1,700.00 - to cover underwriting and the ACH debit program, as well as related expenses.
This will be deducted from payment of the Purchase Price.
B. Wire Fee ‐ Merchant(s) shall receive funding electronically to the Account and will be charged $50.00 for a Fed
Wire or $0.00 for a bank ACH. This will be deducted from payment of the Purchase Price.
C. Blocked Account/Default ‐ $2,500.00 ‐ If CAP considers an Event of Default to have taken place under Section
34.
D. UCC Fee ‐ $195.00 – to cover CAP filing a UCC-1 financing statement to secure its interest in the Receivables
Purchased Amount. A $195.00 UCC termination fee will be charged if a UCC filing is terminated.
E. Court costs, arbitration fees, collection agency fees, attorney fees, expert fees, and any other expenses incurred
in litigation, arbitration, or the enforcement of any of CAP's legal or contractual rights against each Merchant and/or each
Guarantor, if required, as explained in other Sections of this Agreement.
3. Cap on Collection of the Receivables Purchased Amount. The amount that CAP will collect from Merchant(s)
day
towards the Receivables Purchased Amount during any specific ___________ will be capped at $___________
637.07 (the “Cap”).
Ifthe Specified Percentage of all Receivables for a specific day
___________ is less than the Cap, then in addition to the
Specified Percentage of Receivables for that day
___________, CAP will be permitted to collect any Receivables itdid not
previously collect due to the Cap such that the total amount collected during that day ___________ does not exceed the Cap.
The Cap is not applicable to make up for a business day on which CAP is closed and does not ACH debit the Account, to
subsequent attempts to collect a rejected or blocked ACH payment, or for the collection of any of the fees listed in Section 2
or if any Event of Default listed in Section 34 is considered by CAP to have taken place.
4. Reconciliations. Any Merchant may give written notice to CAP requesting that CAP conduct a reconciliation in
order to ensure that the amount that CAP has collected equals the Specified Percentage of Merchant(s)’s Receivables
under this Agreement. Any Merchant may give written notice requesting a reconciliation. A reconciliation may also be
requested by e-mail to info@capifi.co and such notice willbe deemed to have been received ifand when CAP sends a
reply e-mail (but not a read receipt). If such reconciliation determines that CAP collected more than it was entitled to,
then CAP will credit to the Account allamounts to which CAP was not entitled within seven days thereafter. If such
reconciliation determines that CAP collected less than it was entitled to, then CAP will debit from the Account all
additional amounts to which CAP was entitled within seven days thereafter. In order to effectuate this reconciliation, any
Merchant must produce with itsrequest the login and password for the Account and any and allbank statements and
merchant statements covering the period from the date of this Agreement through the date of the request for a reconciliation.
CAP will complete each such reconciliation within two business days after receipt of a written request for one accompanied
by the information and documents required for it. Nothing herein limits the amount of times that such a reconciliation may
be requested.
5. Prepayments. Although there is no obligation to do so, any Merchant may prepay any amount towards the
Receivables Purchased Amount. There will be no penalty for any prepayment made by any Merchant. Any Merchant may
elect to terminate this Agreement by prepaying CAP the amount of the balance of the Receivables Purchased Amount at
that time.
6. Merchant Deposit Agreement. Merchant(s) shall appoint a bank acceptable to CAP, to obtain electronic fund transfer
services and/or “ACH” payments. Merchant(s) shall provide CAP and/or its authorized agent with all of the
I have read and agree to the terms and conditions set forth above:
_______________________________________________________________________
1/20/2022
Name: _________________________
REBECCA LEE REED Title: ________________
OWNER Date: ______________
FILED: KINGS COUNTY CLERK 12/05/2022 04:06 PM INDEX NO. 535349/2022
DocuSign Envelope ID: D82D4E36-23DA-48AC-8C50-300F4F1C6492
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/05/2022
Page 3 of 16
STANDARD MERCHANT CASH ADVANCE AGREEMENT
information, authorizations, and passwords necessary to verify each Merchant’s Receivables. Merchant(s) shall authorize
CAP and/or itsagent(s) to deduct the amounts owed to CAP for the Receivables as specified herein from settlement
amounts which would otherwise be due to each Merchant and to pay such amounts to CAP by permitting CAP to withdraw
the Specified Percentage by ACH debiting of the account. The authorization shall be irrevocable absent CAP's written
consent.
7. Term of Agreement. The term of this Agreement is indefinite and shall continue untilCAP receives the full
Receivables Purchased Amount, or earlier if terminated pursuant to any provision of this Agreement. The provisions of
Sections 4, 6, 7, 8, 10, 11, 13, 14, 15, 17, 18, 19, 22, 23, 28, 31, 32, 33, 34, 35, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47,
48, 49, 50, 51, 52, 53, 54, 55, 56, 57, and 58 shall survive any termination of this Agreement.
8. Ordinary Course of Business. Each Merchant acknowledges that itis entering into this Agreement in the
ordinary course of its business and that the payments to be made from each Merchant to CAP under this Agreement are
being made in the ordinary course of each Merchant’s business.
9. Financial Condition. Each Merchant and each Guarantor (Guarantor being defined as each signatory to the
Guarantee of this Agreement) authorizes CAP and its agent(s) to investigate each Merchant’s financial responsibility and
history, and will provide to CAP any bank or financial statements, tax returns, and other documents and records, as CAP
deems necessary prior to or at any time after execution of this Agreement. A photocopy of this authorization will be deemed
as acceptable for release of financial information. CAP is authorized to update such information and financial profiles from
time to time as it deems appropriate.
10. Monitoring, Recording, and Electronic Communications. CAP may choose to monitor and/or record
telephone calls with any Merchant and itsowners, employees, and agents. By signing this Agreement, each Merchant
agrees that any call between CAP and any Merchant or its representatives may be monitored and/or recorded. Each
Merchant and each Guarantor grants access for CAP to enter any Merchant’s premises and to observe any Merchant’s
premises without any prior notice to any Merchant at any time after execution of this Agreement.
CAP may use automated telephone dialing, text messaging systems, and e-mail to provide messages to
Merchant(s), Owner(s) (Owner being defined as each person who signs this Agreement on behalf of a Merchant), and
Guarantor(s) about Merchant(s)’s account. Telephone messages may be played by a machine automatically when the
telephone is answered, whether answered by an Owner, a Guarantor, or someone else. These messages may also be
recorded by the recipient’s answering machine or voice mail. Each Merchant, each Owner, and each Guarantor gives CAP
permission to call or send a text message to any telephone number given to CAP in connection with this Agreement and to
play pre-recorded messages and/or send text messages with information about this Agreement and/or any Merchant’s
account over the phone. Each Merchant, each Owner, and each Guarantor also gives CAP permission to communicate
such information to them by e-mail. Each Merchant, each Owner, and each Guarantor agree that CAP will not be liable to
any of them for any such calls or electronic communications, even if information is communicated to an unintended recipient.
Each Merchant, each Owner, and each Guarantor acknowledge that when they receive such calls or electronic
communications, they may incur a charge from the company that provides them with telecommunications, wireless, and/or
Internet services, and that CAP has no liability for any such charges.
11. Accuracy of Information Furnished by Merchant and Investigation Thereof. To the extent set forth herein,
each of the parties is obligated upon his, her, or its execution of the Agreement to all terms of the Agreement. Each Merchant
and each Owner signing this Agreement represent that he or she is authorized to sign this Agreement for each Merchant,
legally binding said Merchant to its obligations under this Agreement and that the information provided herein and in all of
CAP's documents, forms, and recorded interview(s) is true, accurate, and complete in allrespects. CAP may produce a
monthly statement reflecting the delivery of the Specified Percentage of Receivables from Merchant(s) to CAP. An
investigative report may be made in connection with the Agreement. Each Merchant and each Owner signing this Agreement
authorize CAP, its agents and representatives, and any credit‐reporting agency engaged by CAP, to (i) investigate any
references given or any other statements obtained from or about each Merchant or any of its Owners for the purpose of this
Agreement, and (ii) pull credit report at any time now or for so long as any Merchant and/or Owners(s) continue to have any
obligation to CAP under this Agreement or for CAP's ability to determine any Merchant’s eligibility to enter into any future
I have read and agree to the terms and conditions set forth above:
_______________________________________________________________________
REBECCA LEE REED OWNER 1/20/2022
Name: _________________________ Title: ________________ Date: ______________
FILED: KINGS COUNTY CLERK 12/05/2022 04:06 PM INDEX NO. 535349/2022
DocuSign Envelope ID: D82D4E36-23DA-48AC-8C50-300F4F1C6492
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/05/2022
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STANDARD MERCHANT CASH ADVANCE AGREEMENT
agreement with CAP. Any misrepresentation made by any Merchant or Owner in connection with this Agreement may
constitute a separate claim for fraud or intentional misrepresentation.
12. Transactional History. Each Merchant authorizes its bank to provide CAP with its banking and/or credit card
processing history.
13. Indemnification. Each Merchant and each Guarantor jointly and severally indemnify and hold harmless each
Merchant’s credit card and check processors (collectively, “Processor”) and Processor’s officers, directors, and
shareholders against all losses, damages, claims, liabilities, and expenses (including reasonable attorney and expert fees)
incurred by Processor resulting from (a) claims asserted by CAP for monies owed to CAP from any Merchant and (b) actions
taken by any Processor in reliance upon information or instructions provided by CAP.
14. No Liability. In no event will CAP be liable for any claims asserted by any Merchant under any legal theory for
lost profits, lostrevenues, lost business opportunities, exemplary, punitive, special, incidental, indirect,or consequential
damages, each of which is waived by each Merchant and each Guarantor.
15. Sale of Receivables. Each Merchant and CAP agree that the Purchase Price under this Agreement is in
exchange for the Receivables Purchased Amount and that such Purchase Price is not intended to be, nor shall itbe
construed as a loan from CAP to any Merchant. CAP is entering into this Agreement knowing the risks that each Merchant’s
business may decline or fail,
resulting in CAP not receiving the Receivables Purchased Amount. Each Merchant agrees
that the Purchase Price in exchange for the Receivables pursuant to this Agreement equals the fair market value of such
Receivables. CAP has purchased and shall own all the Receivables described in this Agreement up to the full Receivables
Purchased Amount as the Receivables are created. Payments made to CAP in respect to the full amount of the Receivables
shall be conditioned upon each Merchant’s sale of products and services and the payment therefor by each Merchant’s
customers in the manner provided in this Agreement. Although certain jurisdictions require the disclosure of an Annual
Percentage Rate or APR in connection with this Agreement, those disclosures do not change the fact that the transaction
encompassed by this Agreement is not a loan and does not have an interest rate.
16. Power of Attorney. Each Merchant irrevocably appoints CAP 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 CAP, or, if CAP considers an Event
of Default to have taken place under Section 34, to settle all obligations due to CAP from each Merchant, 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 (which is defined in Section 33); (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 each Merchant’s name on any
invoice, bill of lading, or assignment directing customers or account debtors to make payment directly to CAP; and (v) to file
any claims or take any action or institute any proceeding which CAP may deem necessary for the collection of any of the
unpaid Receivables Purchased Amount from the Collateral, or otherwise to enforce its rights with respect to payment of the
Receivables Purchased Amount.
17. Protections Against Default. The following Protections 1 through 7 may be invoked by CAP, immediately and
without notice to any Merchant in the event:
(a) Any Merchant takes any action to discourage the use of methods of payment ordinarily and customarily used by
its customers or permits any event to occur that could have an adverse effect on the use, acceptance, or authorization of
checks and credit cards for the purchase of any Merchant’s services and products;
(b) Any Merchant changes its arrangements with any Processor in any way that is adverse to CAP;
(c) Any Merchant changes any Processor through which the Receivables are settled to another electronic check
and/or credit card processor or permits any event to occur that could cause diversion of any Merchant’s check and/or credit
card transactions to another such processor;
(d) Any Merchant interrupts the operation of its business (other than adverse weather, natural disasters, or acts of
God) or transfers, moves, sells, disposes, or otherwise conveys its business or assets without (i) the express prior written
consent of CAP and (ii) the written agreement of any purchaser or transferee to the assumption of all of any Merchant’s
obligations under this Agreement pursuant to documentation satisfactory to CAP; or
(e) Any Merchant takes any action, fails to take any action, or offers any incentive—economic or otherwise—the
I have read and agree to the terms and conditions set forth above:
_______________________________________________________________________
REBECCA LEE REED OWNER 1/20/2022
Name: _________________________ Title: ________________ Date: ______________
FILED: KINGS COUNTY CLERK 12/05/2022 04:06 PM INDEX NO. 535349/2022
DocuSign Envelope ID: D82D4E36-23DA-48AC-8C50-300F4F1C6492
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/05/2022
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STANDARD MERCHANT CASH ADVANCE AGREEMENT
result of which will be to induce any customer or customers to pay for any Merchant’s goods or services with any means
other than checks and/or credit cards that are settled through Processor. These protections are in addition to any other
remedies available to CAP at law, in equity, or otherwise available pursuant to this Agreement.
(f) CAP considers any Event of Default listed in Section 34 to have taken place.
Protection 1: The full uncollected Receivables Purchased Amount plus all fees due under this Agreement may
become due and payable in full immediately.
Protection 2. CAP may enforce the provisions of the Guarantee against Guarantor.
Protection 3. CAP may enforce its security interest in the Collateral identified in Section 33.
Protection 4. CAP may proceed to protect and enforce its rights and remedies by litigation or arbitration. Protection
5. If requested by CAP, Merchant shall deliver to CAP an executed assignment of lease of each
Merchant’s premises in favor of CAP. Upon breach of any provision in this Section 17, CAP may exercise its rights under
such assignment of lease.
Protection 6. CAP may debit any Merchant’s depository accounts wherever situated by means of ACH debit or
electronic or facsimile signature on a computer-generated check drawn on any Merchant’s bank account or otherwise, in
an amount consistent with the terms of this Agreement.
Protection 7. CAP willhave the right, without waiving any of itsrights and remedies and without notice to any
Merchant and/or Guarantor, to notify each Merchant’s credit card and/or check processor of the sale of Receivables
hereunder and to direct such credit card processor to make payment to CAP of all or any portion of the amounts received
by such credit card processor on behalf of each Merchant. Each Merchant hereby grants to CAP an irrevocable power-of-
attorney, which power-of-attorney will be coupled with an interest, and hereby appoints CAP and its representatives as each
Merchant’s attorney-in-fact to take any and all action necessary to direct such new or additional credit card and/or check
processor to make payment to CAP as contemplated by this Section.
18. Protection of Information. Each Merchant and each person signing this Agreement on behalf of each Merchant
and/or as Owner, in respect of himself or herself personally, authorizes CAP to disclose information concerning each
Merchant, Owner and/or Guarantor’s credit standing and business conduct to agents, affiliates, subsidiaries, and credit
reporting bureaus. Each Merchant, Guarantor, and Owner hereby waives to the maximum extent permitted by law any claim
for damages against CAP or any of its affiliatesrelating to any (i)investigation undertaken by or on behalf of CAP as
permitted by this Agreement or (ii) disclosure of information as permitted by this Agreement.
19. Confidentiality. Each Merchant understands and agrees that the terms and conditions of the products and
services offered by CAP, including this Agreement and any other CAP documents (collectively, “Confidential Information”)
are proprietary and confidential information of CAP. Accordingly, unless disclosure is required by law or court order,
Merchant(s) shall not disclose Confidential Information of CAP to any person other than an attorney, accountant, financial
advisor, or employee of any Merchant who needs to know such information for the purpose of advising any Merchant
(“Advisor”), provided such Advisor uses such information solely for the purpose of advising any Merchant and first agrees
in writing to be bound by the terms of this Section 19.
20. D/B/As. Each Merchant hereby acknowledges and agrees that CAP may be using “doing business as” or “d/b/a”
names in connection with various matters relating to the transaction between CAP and each Merchant, including the filing
of UCC-1 financing statements and other notices or filings.
21. Financial Condition and Financial Information. Each Merchant represents, warrants, and covenants that its
bank and financial statements, copies of which have been furnished to CAP, and future statements which will be furnished
hereafter at the request of CAP, fairly represent the financial condition of each Merchant at such dates, and that since those
dates there have been no material adverse changes, financial or otherwise, in such condition, operation, or ownership of
any Merchant. Each Merchant has a continuing affirmative obligation to advise CAP of any material adverse change in its
financial condition, operation, or ownership.
22. Governmental Approvals. Each Merchant represents, warrants, and covenants that it 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.
I have read and agree to the terms and conditions set forth above:
_______________________________________________________________________
REBECCA LEE REED OWNER 1/20/2022
Name: _________________________ Title: ________________ Date: ______________
FILED: KINGS COUNTY CLERK 12/05/2022 04:06 PM INDEX NO. 535349/2022
DocuSign Envelope ID: D82D4E36-23DA-48AC-8C50-300F4F1C6492
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/05/2022
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STANDARD MERCHANT CASH ADVANCE AGREEMENT
23. Authorization. Each Merchant represents, warrants, and covenants that itand each person signing this
Agreement on behalf of each Merchant has full power and authority to incur and perform the obligations under this
Agreement, all of which have been duly authorized.
24. Insurance. Each Merchant represents, warrants, and covenants that it willmaintain business‐interruption
insurance naming CAP as loss payee and additional insured in amounts and against risks as are satisfactory to CAP and
shall provide CAP proof of such insurance upon request.
25. Electronic Check Processing Agreement. Each Merchant represents, warrants, and covenants that it will not,
without CAP's prior written consent, change its Processor, add terminals, change its financial institution or bank account, or
take any other action that could have any adverse effect upon any Merchant’s obligations under this Agreement.
26. Change of Name or Location. Each Merchant represents, warrants, and covenants that it will not conduct its
business under any name other than as disclosed to CAP or change any place(s) of its business without prior written consent
from CAP.
27. Estoppel Certificate. Each Merchant represents, warrants, and covenants that it will,at any time, and from
time to time, upon at least two day’s prior notice from CAP to that Merchant, execute, acknowledge, and deliver to CAP
and/or to any other person or entity specified by CAP, 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 Receivables Purchased Amount or any portion thereof have been paid.
28. No Bankruptcy. Each Merchant represents, warrants, and covenants that as of the date of this Agreement, it
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 any Merchant. Each 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. Each Merchant further warrants that there will be no statutory presumption that it would have been insolvent on
the date of this Agreement.
29. Unencumbered Receivables. Each Merchant represents, warrants, and covenants that it has good, complete,
and marketable title to all Receivables, 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 this Agreement or adverse to the interests of CAP, other than any for
which CAP has actual or constructive knowledge as of the date of this Agreement.
30. Stacking. Each Merchant represents, warrants, and covenants that it will not enter into with any party other
than CAP any arrangement, agreement, or commitment that relates to or involves the Receivables, whether in the form of a
purchase of, a loan against, collateral against, or the sale or purchase of credits against Receivables without the prior
written consent of CAP.
31. Business Purpose. Each Merchant represents, warrants, and covenants that it is a valid business in good
standing under the laws of the jurisdictions in which it is organized and/or operates, and each Merchant is entering into this
Agreement for business purposes and not as a consumer for personal, family, or household purposes.
32. Default Under Other Contracts. Each Merchant represents, warrants, and covenants that itsexecution of
and/or performance under this Agreement will not cause or create an event of default by any Merchant under any contract
with another person or entity.
33. Security Interest. To secure each Merchant’s payment and performance obligations to CAP under this
Agreement and any future agreement with CAP, each Merchant hereby grants to CAP a security interest in collateral (the
“Collateral”), that is defined as collectively: (a)all accounts, including without limitation, all deposit accounts, accounts‐
receivable, and other receivables, chattel paper, documents, equipment, general intangibles, instruments, and inventory,
I have read and agree to the terms and conditions set forth above:
_______________________________________________________________________
REBECCA LEE REED OWNER 1/20/2022
Name: _________________________ Title: ________________ Date: ______________
FILED: KINGS COUNTY CLERK 12/05/2022 04:06 PM INDEX NO. 535349/2022
DocuSign Envelope ID: D82D4E36-23DA-48AC-8C50-300F4F1C6492
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/05/2022
Page 7 of 16
STANDARD MERCHANT CASH ADVANCE AGREEMENT
as those terms are defined by Article 9 of the Uniform Commercial Code (the “UCC”), now or hereafter owned or acquired
by any Merchant; and (b) all proceeds, as that term is defined by Article 9 of the UCC. The parties acknowledge and agree
that any security interest granted to CAP under any other agreement between any Merchant or Guarantor and CAP (the
“Cross‐Collateral”) will secure the obligations hereunder and under this Agreement. Negative Pledge: Each Merchant agrees
not to create, incur, assume, or permit to exist, directly or indirectly, any lien on or with respect to any of the Collateral or
the Cross‐Collateral, as applicable.
Each Merchant agrees to execute any documents or take any action in connection with this Agreement as CAP
deems necessary to perfect or maintain CAP's firstprioritysecurity interest in the Collateral and the Cross‐Collateral,
including the execution of any account control agreements. Each Merchant hereby authorizes CAP to file any financing
statements deemed necessary by CAP to perfect or maintain CAP's security interest, which financing statements may
contain notification that each Merchant has granted a negative pledge to CAP with respect to the Collateral and the Cross‐
Collateral, and that any subsequent lienor may be tortiously interfering with CAP's rights. Each Merchant shall be liable for
and CAP may charge and collect all costs and expenses, including but not limited to attorney fees, which may be incurred
by CAP in protecting, preserving, and enforcing CAP's security interest and rights. Each Merchant further acknowledges
that CAP may use another legal name and/or D/B/A or an agent when designating the Secured Party when CAP files the
above‐referenced financing statement(s).
34. Events of Default. An “Event of Default” may be considered to have taken place if any of the following occur:
(1) Any Merchant violates any term or covenant in this Agreement;
(2) Any representation or warranty by any Merchant in any Agreement with CAP that has not been terminated
proves to have been incorrect, false, or misleading in any material respect when made;
(3) Any Merchant fails to provide CAP with written notice of any material change in its financial condition, operation,
or ownership within seven days thereafter (unless a different notice period is specifically provided for elsewhere in this
Agreement;
(4) the sending of notice of termination by any Merchant or Guarantor;
(5) Any Merchant transports, moves, interrupts, suspends, dissolves, or terminates its business without the prior
written consent of CAP other than a bankruptcy filing;
(6) Any Merchant transfers or sells all or substantially all of its assets without the prior written consent of CAP;
(7) Any Merchant makes or sends notice of any intended bulk sale or transfer by any Merchant without the prior
written consent of CAP;
(8) Any Merchant uses multiple depository accounts without the prior written consent of CAP;
(9) Any Merchant changes the Account without the prior written consent of CAP;
(10) CAP is not provided with updated login or password information for the Account within one business day
after any such change is made by any merchant;
(11) Any Merchant fails to send bank statements, merchant account statements, or bank login information for the
Account within two business days after a written request for same is made by CAP;
(12) Any Merchant changes any Processor or adds terminals without the prior written consent of CAP;
(13) Any Merchant performs any act that reduces the value of any Collateral granted under this Agreement;
(14) Any Merchant fails to deposit its Receivables into the Account;
(15) Any Merchant causes any ACH debit to the Account by CAP to be blocked or stopped;
(16) Four or more ACH debits to the Account by CAP are returned for not sufficient funds (NSF) without advance
written notice from any Merchant;
(17) Any Merchant prevents CAP from collecting any part of the Receivables Purchased Amount;
(18) Any Merchant causes any ACH debit to the Account to be stopped that would result in an ACH Return Code
of R08 or R10 and that Merchant does not within two business days thereafter provide CAP with written notice thereof
ex
Preview
FILED: KINGS COUNTY CLERK 12/05/2022 04:06 PM INDEX NO. 535349/2022 DocuSign Envelope ID: D82D4E36-23DA-48AC-8C50-300F4F1C6492 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/05/2022 01/20/2022 Agreement date: ____________________ JR TRUCKING & CONSTRUCTION LLC Merchant’s name: _______________________________________________________ JR TRUCKING & CONSTRUCTION Merchant’s d/b/a: _______________________________________________________ limited liability company Type of entity: ____________________________ EIN: ________ 160 MAGNOLIA DR Business street address: _________________________________________________ GREENEVILLE TN 37743 Business city: ____________________ Business state: _____ Business zip: ________ 160 MAGNOLIA DR Contact street address: ___________________________________________________ GREENEVILLE TN 37743 Contact city: _____________________ Contact state: ______ Contact zip: __________ E-mail address: ____________ 17,000.00 Purchase Price: $ _________________ (this is the amount being paid to the merchant before any deductions are made) 25,483.00 Receivables Purchased Amount: $ _________________ (this is the total amount the merchant must pay) 25 Specified Percentage: ______ % (this is the percentage of the merchant’s receipts to be debited) 15,300.00 Net Funds Provided: $ _________________ (this is the amount being funded after deducting fees, but not payoffs) 637.07 day Initial Estimated Payment: $ _________________ Frequency: _________________ 1,700.00 Origination Fee: $ _________________ (dollar amount or a percentage, such as “up to 10% of Purchase Price”) REBECCA LEE REED OWNER Signer #1 Full Name: ________________________ Signer #1 Title: _______________ Signer #1 social security #: Signer #1 driver’s license #: _____________ Signer #2 Full Name: ________________________ Signer #2 Title: _______________ Signer #2 social security #: ____________ Signer #2 driver’s license #: _____________ JR TRUCKING & CONSTRUCTION Bank Name: ___ Bank Account Name: _____________________ Account #: __________ Routing #: __________ Bank Portal Website: ____________________________________________________ Username: ________________________ Password: ___________________________ Security Question/Answer #1: _____________________________________________ Security Question/Answer #2: _____________________________________________ Security Question/Answer #3: _____________________________________________ Any other information to access bank account: ________________________________ Payoff Amount: $ _________________ Payoff Recipient: ________________________ Reason for Payoff: ______________________________________________________ FILED: KINGS COUNTY CLERK 12/05/2022 04:06 PM INDEX NO. 535349/2022 DocuSign Envelope ID: D82D4E36-23DA-48AC-8C50-300F4F1C6492 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/05/2022 Page 1 of 16 1370 Broadway, New York, NY 10018 STANDARD MERCHANT CASH ADVANCE AGREEMENT 01/20/2022 This is an Agreement dated __________________ by and between CAPIFI LLC (“CAP”) and each merchant listed below (“Merchant”). Merchant’s Legal Name: _____________________________________________________________________________ JR TRUCKING & CONSTRUCTION LLC D/B/A/: ________________________________________________________ JR TRUCKING & CONSTRUCTION Fed ID #: ____________ Type of Entity: limited liability company Business Address: ____________________________________ 160 MAGNOLIA DR City: _______________ GREENEVILLE State: _______ TN Zip: _________ 37743 Contact Address: _____________________________________ 160 MAGNOLIA DR City: _______________ GREENEVILLE State: _______ TN Zip: _________ 37743 E-mail Address: __________________ Purchase Price This is the amount being paid to Merchant(s) for the Receivables Purchased Amount (defined below). 17,000.00 $ _____________________ Receivables Purchased Amount This is the amount of Receivables (defined in Section 1 below) being sold. 25,483.00 $ _____________________ Specified Percentage This is the percentage of Receivables (defined below) to be delivered until the Receivables Purchased Amount is paid in full. 25 ______ % Net Funds Provided This is the net amount being paid to or on behalf of Merchant(s) after deduction of applicable fees listed in Section 2 below. 15,300.00 $ _____________________ Initial Estimated Payment This is only applicable if an Addendum for Estimated Payments is being signed. This is the initial amount of periodic payments collected from Merchant(s) as an approximation 637.07 $ _____________________ of no more than the Specified Percentage of the Receivables and is subject to reconciliation as set forth in Section 4 below. day per ___________________ TERMS AND CONDITIONS 1. Sale of Future Receipts. Merchant(s) hereby sell, assign, and transfer to CAP (making CAP the absolute owner) in consideration of the funds provided (“Purchase Price”) specified above, all of each Merchant’s future accounts, contract rights, and other obligations arising from or relating to the payment of monies from each Merchant’s customers and/or other third party payors (the “Receivables”, defined as all payments made by cash, check, credit or debit card, electronic transfer, or other form of monetary payment in the ordinary course of each merchant’s business), for the payment of each Merchant’s sale of goods or services until the amount specified above (the “Receivables Purchased Amount”) has been delivered by Merchant(s) to CAP. Each Merchant hereby acknowledges that until the Receivables Purchased Amount has been received in full by CAP, each Merchant’s Receivables, up to the balance of the Receivables Purchased Amount, are the property of CAP and not the property of any Merchant. Each Merchant agrees that it is a fiduciary for CAP and that each Merchant will hold Receivables in trust for CAP in its capacity as a fiduciary for CAP. The Receivables Purchased Amount shall be paid to CAP by each Merchant irrevocably authorizing only one depositing account acceptable to CAP (the “Account”) to remit the percentage specified above (the “Specified Percentage”) I have read and agree to the terms and conditions set forth above: _______________________________________________________________________ 1/20/2022 Name: _________________________ REBECCA LEE REED Title: ________________ OWNER Date: ______________ FILED: KINGS COUNTY CLERK 12/05/2022 04:06 PM INDEX NO. 535349/2022 DocuSign Envelope ID: D82D4E36-23DA-48AC-8C50-300F4F1C6492 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/05/2022 Page 2 of 16 STANDARD MERCHANT CASH ADVANCE AGREEMENT of each Merchant’s settlement amounts due from each transaction, until such time as CAP receives payment in full of the Receivables Purchased Amount. Each Merchant hereby authorizes CAP to ACH debit the specified remittances from the Account on a daily basis as of the next business day after the date of this Agreement and will provide CAP with all required access codes and monthly bank statements. Each Merchant understands that it willbe held responsible for any fees resulting from a rejected ACH attempt or an Event of Default (see Section 2). CAP is not responsible for any overdrafts or rejected transactions that may result from CAP's ACH debiting the Specified Percentage amounts under the terms of this Agreement. 2. Additional Fees. In addition to the Receivables Purchased Amount, each Merchant will be held responsible to CAP for the following fees, where applicable: A. $_____________________ 1,700.00 - to cover underwriting and the ACH debit program, as well as related expenses. This will be deducted from payment of the Purchase Price. B. Wire Fee ‐ Merchant(s) shall receive funding electronically to the Account and will be charged $50.00 for a Fed Wire or $0.00 for a bank ACH. This will be deducted from payment of the Purchase Price. C. Blocked Account/Default ‐ $2,500.00 ‐ If CAP considers an Event of Default to have taken place under Section 34. D. UCC Fee ‐ $195.00 – to cover CAP filing a UCC-1 financing statement to secure its interest in the Receivables Purchased Amount. A $195.00 UCC termination fee will be charged if a UCC filing is terminated. E. Court costs, arbitration fees, collection agency fees, attorney fees, expert fees, and any other expenses incurred in litigation, arbitration, or the enforcement of any of CAP's legal or contractual rights against each Merchant and/or each Guarantor, if required, as explained in other Sections of this Agreement. 3. Cap on Collection of the Receivables Purchased Amount. The amount that CAP will collect from Merchant(s) day towards the Receivables Purchased Amount during any specific ___________ will be capped at $___________ 637.07 (the “Cap”). Ifthe Specified Percentage of all Receivables for a specific day ___________ is less than the Cap, then in addition to the Specified Percentage of Receivables for that day ___________, CAP will be permitted to collect any Receivables itdid not previously collect due to the Cap such that the total amount collected during that day ___________ does not exceed the Cap. The Cap is not applicable to make up for a business day on which CAP is closed and does not ACH debit the Account, to subsequent attempts to collect a rejected or blocked ACH payment, or for the collection of any of the fees listed in Section 2 or if any Event of Default listed in Section 34 is considered by CAP to have taken place. 4. Reconciliations. Any Merchant may give written notice to CAP requesting that CAP conduct a reconciliation in order to ensure that the amount that CAP has collected equals the Specified Percentage of Merchant(s)’s Receivables under this Agreement. Any Merchant may give written notice requesting a reconciliation. A reconciliation may also be requested by e-mail to info@capifi.co and such notice willbe deemed to have been received ifand when CAP sends a reply e-mail (but not a read receipt). If such reconciliation determines that CAP collected more than it was entitled to, then CAP will credit to the Account allamounts to which CAP was not entitled within seven days thereafter. If such reconciliation determines that CAP collected less than it was entitled to, then CAP will debit from the Account all additional amounts to which CAP was entitled within seven days thereafter. In order to effectuate this reconciliation, any Merchant must produce with itsrequest the login and password for the Account and any and allbank statements and merchant statements covering the period from the date of this Agreement through the date of the request for a reconciliation. CAP will complete each such reconciliation within two business days after receipt of a written request for one accompanied by the information and documents required for it. Nothing herein limits the amount of times that such a reconciliation may be requested. 5. Prepayments. Although there is no obligation to do so, any Merchant may prepay any amount towards the Receivables Purchased Amount. There will be no penalty for any prepayment made by any Merchant. Any Merchant may elect to terminate this Agreement by prepaying CAP the amount of the balance of the Receivables Purchased Amount at that time. 6. Merchant Deposit Agreement. Merchant(s) shall appoint a bank acceptable to CAP, to obtain electronic fund transfer services and/or “ACH” payments. Merchant(s) shall provide CAP and/or its authorized agent with all of the I have read and agree to the terms and conditions set forth above: _______________________________________________________________________ 1/20/2022 Name: _________________________ REBECCA LEE REED Title: ________________ OWNER Date: ______________ FILED: KINGS COUNTY CLERK 12/05/2022 04:06 PM INDEX NO. 535349/2022 DocuSign Envelope ID: D82D4E36-23DA-48AC-8C50-300F4F1C6492 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/05/2022 Page 3 of 16 STANDARD MERCHANT CASH ADVANCE AGREEMENT information, authorizations, and passwords necessary to verify each Merchant’s Receivables. Merchant(s) shall authorize CAP and/or itsagent(s) to deduct the amounts owed to CAP for the Receivables as specified herein from settlement amounts which would otherwise be due to each Merchant and to pay such amounts to CAP by permitting CAP to withdraw the Specified Percentage by ACH debiting of the account. The authorization shall be irrevocable absent CAP's written consent. 7. Term of Agreement. The term of this Agreement is indefinite and shall continue untilCAP receives the full Receivables Purchased Amount, or earlier if terminated pursuant to any provision of this Agreement. The provisions of Sections 4, 6, 7, 8, 10, 11, 13, 14, 15, 17, 18, 19, 22, 23, 28, 31, 32, 33, 34, 35, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, and 58 shall survive any termination of this Agreement. 8. Ordinary Course of Business. Each Merchant acknowledges that itis entering into this Agreement in the ordinary course of its business and that the payments to be made from each Merchant to CAP under this Agreement are being made in the ordinary course of each Merchant’s business. 9. Financial Condition. Each Merchant and each Guarantor (Guarantor being defined as each signatory to the Guarantee of this Agreement) authorizes CAP and its agent(s) to investigate each Merchant’s financial responsibility and history, and will provide to CAP any bank or financial statements, tax returns, and other documents and records, as CAP deems necessary prior to or at any time after execution of this Agreement. A photocopy of this authorization will be deemed as acceptable for release of financial information. CAP is authorized to update such information and financial profiles from time to time as it deems appropriate. 10. Monitoring, Recording, and Electronic Communications. CAP may choose to monitor and/or record telephone calls with any Merchant and itsowners, employees, and agents. By signing this Agreement, each Merchant agrees that any call between CAP and any Merchant or its representatives may be monitored and/or recorded. Each Merchant and each Guarantor grants access for CAP to enter any Merchant’s premises and to observe any Merchant’s premises without any prior notice to any Merchant at any time after execution of this Agreement. CAP may use automated telephone dialing, text messaging systems, and e-mail to provide messages to Merchant(s), Owner(s) (Owner being defined as each person who signs this Agreement on behalf of a Merchant), and Guarantor(s) about Merchant(s)’s account. Telephone messages may be played by a machine automatically when the telephone is answered, whether answered by an Owner, a Guarantor, or someone else. These messages may also be recorded by the recipient’s answering machine or voice mail. Each Merchant, each Owner, and each Guarantor gives CAP permission to call or send a text message to any telephone number given to CAP in connection with this Agreement and to play pre-recorded messages and/or send text messages with information about this Agreement and/or any Merchant’s account over the phone. Each Merchant, each Owner, and each Guarantor also gives CAP permission to communicate such information to them by e-mail. Each Merchant, each Owner, and each Guarantor agree that CAP will not be liable to any of them for any such calls or electronic communications, even if information is communicated to an unintended recipient. Each Merchant, each Owner, and each Guarantor acknowledge that when they receive such calls or electronic communications, they may incur a charge from the company that provides them with telecommunications, wireless, and/or Internet services, and that CAP has no liability for any such charges. 11. Accuracy of Information Furnished by Merchant and Investigation Thereof. To the extent set forth herein, each of the parties is obligated upon his, her, or its execution of the Agreement to all terms of the Agreement. Each Merchant and each Owner signing this Agreement represent that he or she is authorized to sign this Agreement for each Merchant, legally binding said Merchant to its obligations under this Agreement and that the information provided herein and in all of CAP's documents, forms, and recorded interview(s) is true, accurate, and complete in allrespects. CAP may produce a monthly statement reflecting the delivery of the Specified Percentage of Receivables from Merchant(s) to CAP. An investigative report may be made in connection with the Agreement. Each Merchant and each Owner signing this Agreement authorize CAP, its agents and representatives, and any credit‐reporting agency engaged by CAP, to (i) investigate any references given or any other statements obtained from or about each Merchant or any of its Owners for the purpose of this Agreement, and (ii) pull credit report at any time now or for so long as any Merchant and/or Owners(s) continue to have any obligation to CAP under this Agreement or for CAP's ability to determine any Merchant’s eligibility to enter into any future I have read and agree to the terms and conditions set forth above: _______________________________________________________________________ REBECCA LEE REED OWNER 1/20/2022 Name: _________________________ Title: ________________ Date: ______________ FILED: KINGS COUNTY CLERK 12/05/2022 04:06 PM INDEX NO. 535349/2022 DocuSign Envelope ID: D82D4E36-23DA-48AC-8C50-300F4F1C6492 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/05/2022 Page 4 of 16 STANDARD MERCHANT CASH ADVANCE AGREEMENT agreement with CAP. Any misrepresentation made by any Merchant or Owner in connection with this Agreement may constitute a separate claim for fraud or intentional misrepresentation. 12. Transactional History. Each Merchant authorizes its bank to provide CAP with its banking and/or credit card processing history. 13. Indemnification. Each Merchant and each Guarantor jointly and severally indemnify and hold harmless each Merchant’s credit card and check processors (collectively, “Processor”) and Processor’s officers, directors, and shareholders against all losses, damages, claims, liabilities, and expenses (including reasonable attorney and expert fees) incurred by Processor resulting from (a) claims asserted by CAP for monies owed to CAP from any Merchant and (b) actions taken by any Processor in reliance upon information or instructions provided by CAP. 14. No Liability. In no event will CAP be liable for any claims asserted by any Merchant under any legal theory for lost profits, lostrevenues, lost business opportunities, exemplary, punitive, special, incidental, indirect,or consequential damages, each of which is waived by each Merchant and each Guarantor. 15. Sale of Receivables. Each Merchant and CAP agree that the Purchase Price under this Agreement is in exchange for the Receivables Purchased Amount and that such Purchase Price is not intended to be, nor shall itbe construed as a loan from CAP to any Merchant. CAP is entering into this Agreement knowing the risks that each Merchant’s business may decline or fail, resulting in CAP not receiving the Receivables Purchased Amount. Each Merchant agrees that the Purchase Price in exchange for the Receivables pursuant to this Agreement equals the fair market value of such Receivables. CAP has purchased and shall own all the Receivables described in this Agreement up to the full Receivables Purchased Amount as the Receivables are created. Payments made to CAP in respect to the full amount of the Receivables shall be conditioned upon each Merchant’s sale of products and services and the payment therefor by each Merchant’s customers in the manner provided in this Agreement. Although certain jurisdictions require the disclosure of an Annual Percentage Rate or APR in connection with this Agreement, those disclosures do not change the fact that the transaction encompassed by this Agreement is not a loan and does not have an interest rate. 16. Power of Attorney. Each Merchant irrevocably appoints CAP 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 CAP, or, if CAP considers an Event of Default to have taken place under Section 34, to settle all obligations due to CAP from each Merchant, 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 (which is defined in Section 33); (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 each Merchant’s name on any invoice, bill of lading, or assignment directing customers or account debtors to make payment directly to CAP; and (v) to file any claims or take any action or institute any proceeding which CAP may deem necessary for the collection of any of the unpaid Receivables Purchased Amount from the Collateral, or otherwise to enforce its rights with respect to payment of the Receivables Purchased Amount. 17. Protections Against Default. The following Protections 1 through 7 may be invoked by CAP, immediately and without notice to any Merchant in the event: (a) Any Merchant takes any action to discourage the use of methods of payment ordinarily and customarily used by its customers or permits any event to occur that could have an adverse effect on the use, acceptance, or authorization of checks and credit cards for the purchase of any Merchant’s services and products; (b) Any Merchant changes its arrangements with any Processor in any way that is adverse to CAP; (c) Any Merchant changes any Processor through which the Receivables are settled to another electronic check and/or credit card processor or permits any event to occur that could cause diversion of any Merchant’s check and/or credit card transactions to another such processor; (d) Any Merchant interrupts the operation of its business (other than adverse weather, natural disasters, or acts of God) or transfers, moves, sells, disposes, or otherwise conveys its business or assets without (i) the express prior written consent of CAP and (ii) the written agreement of any purchaser or transferee to the assumption of all of any Merchant’s obligations under this Agreement pursuant to documentation satisfactory to CAP; or (e) Any Merchant takes any action, fails to take any action, or offers any incentive—economic or otherwise—the I have read and agree to the terms and conditions set forth above: _______________________________________________________________________ REBECCA LEE REED OWNER 1/20/2022 Name: _________________________ Title: ________________ Date: ______________ FILED: KINGS COUNTY CLERK 12/05/2022 04:06 PM INDEX NO. 535349/2022 DocuSign Envelope ID: D82D4E36-23DA-48AC-8C50-300F4F1C6492 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/05/2022 Page 5 of 16 STANDARD MERCHANT CASH ADVANCE AGREEMENT result of which will be to induce any customer or customers to pay for any Merchant’s goods or services with any means other than checks and/or credit cards that are settled through Processor. These protections are in addition to any other remedies available to CAP at law, in equity, or otherwise available pursuant to this Agreement. (f) CAP considers any Event of Default listed in Section 34 to have taken place. Protection 1: The full uncollected Receivables Purchased Amount plus all fees due under this Agreement may become due and payable in full immediately. Protection 2. CAP may enforce the provisions of the Guarantee against Guarantor. Protection 3. CAP may enforce its security interest in the Collateral identified in Section 33. Protection 4. CAP may proceed to protect and enforce its rights and remedies by litigation or arbitration. Protection 5. If requested by CAP, Merchant shall deliver to CAP an executed assignment of lease of each Merchant’s premises in favor of CAP. Upon breach of any provision in this Section 17, CAP may exercise its rights under such assignment of lease. Protection 6. CAP may debit any Merchant’s depository accounts wherever situated by means of ACH debit or electronic or facsimile signature on a computer-generated check drawn on any Merchant’s bank account or otherwise, in an amount consistent with the terms of this Agreement. Protection 7. CAP willhave the right, without waiving any of itsrights and remedies and without notice to any Merchant and/or Guarantor, to notify each Merchant’s credit card and/or check processor of the sale of Receivables hereunder and to direct such credit card processor to make payment to CAP of all or any portion of the amounts received by such credit card processor on behalf of each Merchant. Each Merchant hereby grants to CAP an irrevocable power-of- attorney, which power-of-attorney will be coupled with an interest, and hereby appoints CAP and its representatives as each Merchant’s attorney-in-fact to take any and all action necessary to direct such new or additional credit card and/or check processor to make payment to CAP as contemplated by this Section. 18. Protection of Information. Each Merchant and each person signing this Agreement on behalf of each Merchant and/or as Owner, in respect of himself or herself personally, authorizes CAP to disclose information concerning each Merchant, Owner and/or Guarantor’s credit standing and business conduct to agents, affiliates, subsidiaries, and credit reporting bureaus. Each Merchant, Guarantor, and Owner hereby waives to the maximum extent permitted by law any claim for damages against CAP or any of its affiliatesrelating to any (i)investigation undertaken by or on behalf of CAP as permitted by this Agreement or (ii) disclosure of information as permitted by this Agreement. 19. Confidentiality. Each Merchant understands and agrees that the terms and conditions of the products and services offered by CAP, including this Agreement and any other CAP documents (collectively, “Confidential Information”) are proprietary and confidential information of CAP. Accordingly, unless disclosure is required by law or court order, Merchant(s) shall not disclose Confidential Information of CAP to any person other than an attorney, accountant, financial advisor, or employee of any Merchant who needs to know such information for the purpose of advising any Merchant (“Advisor”), provided such Advisor uses such information solely for the purpose of advising any Merchant and first agrees in writing to be bound by the terms of this Section 19. 20. D/B/As. Each Merchant hereby acknowledges and agrees that CAP may be using “doing business as” or “d/b/a” names in connection with various matters relating to the transaction between CAP and each Merchant, including the filing of UCC-1 financing statements and other notices or filings. 21. Financial Condition and Financial Information. Each Merchant represents, warrants, and covenants that its bank and financial statements, copies of which have been furnished to CAP, and future statements which will be furnished hereafter at the request of CAP, fairly represent the financial condition of each Merchant at such dates, and that since those dates there have been no material adverse changes, financial or otherwise, in such condition, operation, or ownership of any Merchant. Each Merchant has a continuing affirmative obligation to advise CAP of any material adverse change in its financial condition, operation, or ownership. 22. Governmental Approvals. Each Merchant represents, warrants, and covenants that it 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. I have read and agree to the terms and conditions set forth above: _______________________________________________________________________ REBECCA LEE REED OWNER 1/20/2022 Name: _________________________ Title: ________________ Date: ______________ FILED: KINGS COUNTY CLERK 12/05/2022 04:06 PM INDEX NO. 535349/2022 DocuSign Envelope ID: D82D4E36-23DA-48AC-8C50-300F4F1C6492 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/05/2022 Page 6 of 16 STANDARD MERCHANT CASH ADVANCE AGREEMENT 23. Authorization. Each Merchant represents, warrants, and covenants that itand each person signing this Agreement on behalf of each Merchant has full power and authority to incur and perform the obligations under this Agreement, all of which have been duly authorized. 24. Insurance. Each Merchant represents, warrants, and covenants that it willmaintain business‐interruption insurance naming CAP as loss payee and additional insured in amounts and against risks as are satisfactory to CAP and shall provide CAP proof of such insurance upon request. 25. Electronic Check Processing Agreement. Each Merchant represents, warrants, and covenants that it will not, without CAP's prior written consent, change its Processor, add terminals, change its financial institution or bank account, or take any other action that could have any adverse effect upon any Merchant’s obligations under this Agreement. 26. Change of Name or Location. Each Merchant represents, warrants, and covenants that it will not conduct its business under any name other than as disclosed to CAP or change any place(s) of its business without prior written consent from CAP. 27. Estoppel Certificate. Each Merchant represents, warrants, and covenants that it will,at any time, and from time to time, upon at least two day’s prior notice from CAP to that Merchant, execute, acknowledge, and deliver to CAP and/or to any other person or entity specified by CAP, 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 Receivables Purchased Amount or any portion thereof have been paid. 28. No Bankruptcy. Each Merchant represents, warrants, and covenants that as of the date of this Agreement, it 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 any Merchant. Each 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. Each Merchant further warrants that there will be no statutory presumption that it would have been insolvent on the date of this Agreement. 29. Unencumbered Receivables. Each Merchant represents, warrants, and covenants that it has good, complete, and marketable title to all Receivables, 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 this Agreement or adverse to the interests of CAP, other than any for which CAP has actual or constructive knowledge as of the date of this Agreement. 30. Stacking. Each Merchant represents, warrants, and covenants that it will not enter into with any party other than CAP any arrangement, agreement, or commitment that relates to or involves the Receivables, whether in the form of a purchase of, a loan against, collateral against, or the sale or purchase of credits against Receivables without the prior written consent of CAP. 31. Business Purpose. Each Merchant represents, warrants, and covenants that it is a valid business in good standing under the laws of the jurisdictions in which it is organized and/or operates, and each Merchant is entering into this Agreement for business purposes and not as a consumer for personal, family, or household purposes. 32. Default Under Other Contracts. Each Merchant represents, warrants, and covenants that itsexecution of and/or performance under this Agreement will not cause or create an event of default by any Merchant under any contract with another person or entity. 33. Security Interest. To secure each Merchant’s payment and performance obligations to CAP under this Agreement and any future agreement with CAP, each Merchant hereby grants to CAP a security interest in collateral (the “Collateral”), that is defined as collectively: (a)all accounts, including without limitation, all deposit accounts, accounts‐ receivable, and other receivables, chattel paper, documents, equipment, general intangibles, instruments, and inventory, I have read and agree to the terms and conditions set forth above: _______________________________________________________________________ REBECCA LEE REED OWNER 1/20/2022 Name: _________________________ Title: ________________ Date: ______________ FILED: KINGS COUNTY CLERK 12/05/2022 04:06 PM INDEX NO. 535349/2022 DocuSign Envelope ID: D82D4E36-23DA-48AC-8C50-300F4F1C6492 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/05/2022 Page 7 of 16 STANDARD MERCHANT CASH ADVANCE AGREEMENT as those terms are defined by Article 9 of the Uniform Commercial Code (the “UCC”), now or hereafter owned or acquired by any Merchant; and (b) all proceeds, as that term is defined by Article 9 of the UCC. The parties acknowledge and agree that any security interest granted to CAP under any other agreement between any Merchant or Guarantor and CAP (the “Cross‐Collateral”) will secure the obligations hereunder and under this Agreement. Negative Pledge: Each Merchant agrees not to create, incur, assume, or permit to exist, directly or indirectly, any lien on or with respect to any of the Collateral or the Cross‐Collateral, as applicable. Each Merchant agrees to execute any documents or take any action in connection with this Agreement as CAP deems necessary to perfect or maintain CAP's firstprioritysecurity interest in the Collateral and the Cross‐Collateral, including the execution of any account control agreements. Each Merchant hereby authorizes CAP to file any financing statements deemed necessary by CAP to perfect or maintain CAP's security interest, which financing statements may contain notification that each Merchant has granted a negative pledge to CAP with respect to the Collateral and the Cross‐ Collateral, and that any subsequent lienor may be tortiously interfering with CAP's rights. Each Merchant shall be liable for and CAP may charge and collect all costs and expenses, including but not limited to attorney fees, which may be incurred by CAP in protecting, preserving, and enforcing CAP's security interest and rights. Each Merchant further acknowledges that CAP may use another legal name and/or D/B/A or an agent when designating the Secured Party when CAP files the above‐referenced financing statement(s). 34. Events of Default. An “Event of Default” may be considered to have taken place if any of the following occur: (1) Any Merchant violates any term or covenant in this Agreement; (2) Any representation or warranty by any Merchant in any Agreement with CAP that has not been terminated proves to have been incorrect, false, or misleading in any material respect when made; (3) Any Merchant fails to provide CAP with written notice of any material change in its financial condition, operation, or ownership within seven days thereafter (unless a different notice period is specifically provided for elsewhere in this Agreement; (4) the sending of notice of termination by any Merchant or Guarantor; (5) Any Merchant transports, moves, interrupts, suspends, dissolves, or terminates its business without the prior written consent of CAP other than a bankruptcy filing; (6) Any Merchant transfers or sells all or substantially all of its assets without the prior written consent of CAP; (7) Any Merchant makes or sends notice of any intended bulk sale or transfer by any Merchant without the prior written consent of CAP; (8) Any Merchant uses multiple depository accounts without the prior written consent of CAP; (9) Any Merchant changes the Account without the prior written consent of CAP; (10) CAP is not provided with updated login or password information for the Account within one business day after any such change is made by any merchant; (11) Any Merchant fails to send bank statements, merchant account statements, or bank login information for the Account within two business days after a written request for same is made by CAP; (12) Any Merchant changes any Processor or adds terminals without the prior written consent of CAP; (13) Any Merchant performs any act that reduces the value of any Collateral granted under this Agreement; (14) Any Merchant fails to deposit its Receivables into the Account; (15) Any Merchant causes any ACH debit to the Account by CAP to be blocked or stopped; (16) Four or more ACH debits to the Account by CAP are returned for not sufficient funds (NSF) without advance written notice from any Merchant; (17) Any Merchant prevents CAP from collecting any part of the Receivables Purchased Amount; (18) Any Merchant causes any ACH debit to the Account to be stopped that would result in an ACH Return Code of R08 or R10 and that Merchant does not within two business days thereafter provide CAP with written notice thereof ex