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FILED: NEW YORK COUNTY CLERK 12/20/2018 10:29 AM INDEX NO. 656346/2018
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 12/20/2018
"H"
EXHIBIT
FILED: NEW YORK COUNTY CLERK 12/20/2018 10:29 AM INDEX NO. 656346/2018
Contract ID#
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 12/20/2018
Sales Partner:
GTR SOURCE LLC
.MERCHANT AGREEMENT
2018
Agreement dated November 7, between GTR Source LLC ("GSL") and the Merchant below
listed ("MERCRANT")
(Month) (Day) (Year)
MERCEANT INFORMATION
Merchant'sLegalName: MEDISALE INC
D/B/A: MEDISALE State ofincorporation FL
/ organization: FederalTax ID
Type of Entity
(circle
one) Corporation Limited CompanyLimited
Liability Partnership LimitedLiabilityPartnership Sole Proprictrship
10151 DEERWOOD PARK BLDG 200 SUITE 250 JACKSONVILLE, FL 32256
PhysicalAddress: City: State: zip:
Contact Name: ContactNumber: Email:
10151 DEERWOOD PARK BLDG 200 SUITE 250 JACKSONVILLE, FL 32256
MailingAddress: City: state zip:
PURCHASE AND SALE OF FUTURE RECEIVABLES
("Merchant" or ("GSL"
Merchant or "Buyer") (making GSL the absoluteowner) in considerationof the fundsprovided ("Purchase
"Seller") herebysells, assignsandtransfersto GSL Price")
customers'
specifiedbelow, all of Merchant's future accounts,contractrights andotherendfemed
arising from or relating to the paymentof moniesfrom Merchant's
and/orotherthird party
"Receipts"
payors(the definedasall paymentsmadeby cash,check,electronictransferor otherform of monetarypaymentin the ordinary courseof the Merchant's business),for the payments
dueto Merchantasa result of Merchant's saleof goodsor services(the "Transactions")until the amountspecifiedbelow (the "PurchasedAmount") hasbeendeliveredby or on behalf of
Merchantto GSL.
ThePurchasedAmount shall be paid to GSL by Merchant's irrevocably directing and authorizing that therebe only one depositingbank account,which accountmustbe acceptableto, and pre-
approvedby, GSL (the "Account") into which MerchantandMerchant's customersshall remit the percentagespecifiedbelow (the "Specified Percentage")of the Merchant's settlement
amountsduefrom eachTransaction,until suchtime asGSL receivespaymentin full of the PurchasedAmount. Merchant herebyauthorizesGSL to ACH Debit the specifiedremittances
from
the merchant'sAccount on a daily basisandwill provide GSL with all requiredaccesscodes,and monthly bankstatements.Merchantunderstandsthat it is responsiblefor ensuringthat
the
andwill beheld responsiblefor any feesincurred by GSL resulting from a rejectedACH attemptor an eventof
specifiedpercentageto be debitedby GSL remainsin the Account default.
(SeeAppendix A) GSL is not responsiblefor any overdraftsor rejectedtransactionsthat may result from GSL's ACH debiting the specifiedamountsunderthe terms of this agreement.GSL
will debitthe specific daily amounteachbusinessday andupon receiptof the Merchant's monthly bank statementson or aboutthe eighteenthday of eachmonth reconciletheMerchant's
Account by either crediting or debiting the differencefrom or backto the Merchant'sAccount so that the amountdebitedpermonth equalsthe specifiedpercentage.GSL may,
uponMerchant's
request,adjustthe amountof any paymentdueunderthis Agreementat GSL's solediscretionandasit deemsappropriate.Notwithstandinganything to the contrary in this Agreementor any
otheragreementbetweenGSL andMerchant, uponthe violation of any provision containedin SectionL11 of the MERCHANT
AGREEMENT TERMS AND CONDITIONS or the
occurrenceof anEvent of Default under Section3 of the MERCHANT AGREEMENT TERMS AND CONDITIONS, the SpecifiedPercentageshall equal 100% A list of all feesapplicable
underthis Agreementis containedin AppendixA.
375,000.00 562,125.00
Tote PurchasePrice. $ Specified Percentage: % Estimated Daily Amount:$ $
Total Purchased Amount:$
THE MERCHANT AGREEMENT TERMS AND CONDITIONS SET FORTH ON PAGE 2, THE "SECURITY AGF-WEurNT AND GUARANTY" AND THE
"ADMINISTRATIVE FORM HEREOF, ARE ALL HEREBY INCORPORATED IN AND MADE A PART OF THIS MERCHANT pnpryurNT.
FOR THE MERCHANT (#1)
By JAMES ELLIOT DAVIS II
(Pnnt Name and latle)
(Signature)
FOR THE MERCHANT (#2)
Sign Here
(Print Name and Title) (Signature)
OWNER#1
By JAMES ELLIOT DAVIS II
Here
Sign
(Print Name) (Signature)
OWNER #2
By Sign Here
(Print Name) (Signature)
GTR SOURCE LLC
By SalesAssociateName:
(Company Officer) (Signature)
GTR Source LLC 1111 JohnStreetSuite 1210 I NewYork INY 10038] Ph.(855)662-9303 Fax (855) 204-0222
FILED: NEW YORK COUNTY CLERK 12/20/2018 10:29 AM INDEX NO. 656346/2018
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 12/20/2018
MERCHANT AGREEMENT TERMS AND CONDITIONS
L TERMS OF ENROLLMENT PROGRAM
1.1 Merchant DepositAgrccracnt.Merchant shallexecutean agreement(the "MerchantDepositArmet") acceptabletoGSL and appoint
a
Bank seceptable to obtain
electronic
fund and/or"ACH" payments.
to GSL, transfer
services Merchant shall provide
CMS and/orits
authorizedagent with
all of the information,
authorizations
and passwordsnecessary to verify
Merchant's and deposits
receipts
receivables,
into the account
Merchant shall authorize
GSL and/or its agent to deduct
amounts owed to GSL for the Receipts
as specified
hereinfrom
settlement
amounts which would otherwisebe due to Merchant
from electronic
check transactions
and to pay such amounts
to GSL by
permittingGSL to withdrawthe specified
percentages
by ACH debitingof the account. shall be irrevocable
The authorization absent GSL's
writtenconsent.
1.2 Future Purchases.GSL reserves the right
to rescind
the offer
to make any purchasepaymentshereunder,in its sole discretion.
1.3 Financial ConditionMerchant and Guarantor(s)authorize
GSL and its agents to investigate
theirfinancial and history,
responsibility and will
provideto GSL any bankor financial tax
statements, etc.
returns, asGSL deems necessarypriortooratany timeafterexecutionof this
Agreement. A photocopy of this authorization
willbe deemed as acceptable
for release of financial
infomtion GSL is authorized
to update
such information
and financial
profiles
from timeto timeas it deems appropriate.
1.4 Transactional History.Merchant authorizesGSL and its agents to investigate
their
financial and history,
responsibility and willprovideto
GSL bank
any authorizations, or financial
statemen+s, tax returns,
etc., as GSL
deems necessary in its sole and absolute prior
discretion to any
timeafter the execution
of this Agreement.
A photocopy of this authorization
willbe deemed as acceptable
as an authcrizatica
forrelease of
financial
and credit
information.
Merchant waives,to themaximum extentpermittedby law,any claimsfor damages against
GSL or any of its
affiliates
relating und-*ahn
to any investigation by or on behalf
ofGSL as permitted
by this Agreement
or disclosure
of information
as
permittedby this Agreement.
L5 Indemnification.Merchant and Guarantor(s) and severally
jointly inderanifyand holdharmless its officers,
Processor, directors
and
-haders against
all liabilities
losses, damages, claims, and expenses (including
reasonableattorney's
fees) incurred
by Processorresulting
from asserted by GSL
(a) claims formonies owed to GSL fromMerchant and (b) actions taken
by Processorin reliance
upon informationor
instructions
providedby GSL.
1.6 No Liability.
In no event will
GSL be liable
for any claims under
asserted by Merchant any legal theory
forlost profits,
lost revenues,
lost
businessopportunities,
exemplary, punitive,
special,
incidental, or consequential
indirect, damages, each of which
is waivedby Merchant and
Guarantor(s). are nonetheless
In the event these claims and Guarantors
raised, Merchant willbe jointly
liableforall of
GSL's legalfees and
expenses resulting
therefrom.
1.7 Reliance on Terms. Sections1.1, 1.7, 1.8 and 2.5 of this Agreement
are agreed to for the benefit
of Merchant,GSL and Processor,
and
notwithstandingthe fact that Processor
is not a party
of this Agreement,
Processormay relyupon their
terms and raise them
as a defense in any
action.
1.8 Sale of Receipts.
(THIS IS NOT A LOAN) Merchant a portion
is selling of a future
revenue stream to GSLat a discount,
not borrowing
money from GSL. There is no interest
rate or paymentscheduleand not time
periodduringwhich the PurchasedAmount must be collected
by
GSL. IfFutureReceiptsare remitted
more slowlythan GSL may have anticipated
or projected
because Merchant'sbusiness has slowed
down,
or if the full
PurchasedAmount is never remitted
because M-han+'s business went bankrupt
or otherwise in the ordinary
ceased operations
course of business,
and Merchanthas not breached this Agreement,
Merchant would not owe anything
to GSL and would not be in breach of or
under
default this Agreement.
GSL the Purchased
is buying Amount of Future
Receiptsknowing the risks
that Merchant's
business may slow
down or fail,
and GSL assumes these risks
based on Merchant'srepresentations, and covenants
warranties, in this Agreement,
Merchant
transfers
to GSL and complete
fill ownership of the Purchased
Amount of FutureReceiptsand Merchantretains
no legal or equitable
interest
therein.
Merchant agrees that it will
treat Purchase Price
and PurchasedAmount in a mannerconsistant
witha sale in its accounting
records
Merchant
and tax returns. agrees that
GSL to audit Merchant's
is entitled accountingrecords upon
reasonableNotice in order to verify
compli°_=ce. Merchant
waivesany rights
of privacy, or taxpayer
confidentiality privilege
in any such litigation
or arbitration
in whichMerchant
assets that this transaction other than a sale of future
is anything receipts.
1.9 Power Merchant
of Attorney. appoints
irrevocably GSL as its agent and attorney-in-fact
withfull to take any action
authority or execute
any
instrumentor documentto settle all obligations
due to GSL from or in the case of a violation
Processor, by Merchant 1.2 or the
of Section
occurrenceof an Event 4 hereof ½+a+ian·
of Default
underSection fromMercliant,under this Agreement,
includingwithout (i) to obtain
and
adjustinsurance; to collect
(ii) monies due under or in respect of any of the Collateral;
due or to become to receive,
(ii) endorse,and collect
any
checks, notes,
drafts, documents,
instruments, orchattelpaperinconneden with clause or
(i) clause above;
(ii) (iv)tosignMerchant'sname
GSL'
bill
on any invoice, or assignment
of lading, customers
directing or accountdebtorsto deliver
futurereceipts to
directly and (v) to file
any claimsor take any action
or institute which
any proceeding GSL may deem necessary for the collection
of any of the unpaid
Purchased
Amount fromthe Collateral,
or otherwise
to enforceits rights
withrespect to the delivery Amount.
of the Purchased
1.10 ProtectionsagainstDefault The following
Protections1 through8 may be invokedbyGSL, 4-da+aly and withoutnotice
to Merchant in
as prescribed
an event of default, by Section3.1and/or2.9,OR intheeventthat:(a)Merchanttakesany actiontodiscouragetheuse of
electronic that are settled through
check processing or permits
Processor, any event to occur have an adverse effect
that could on the use,
acceptance, of checks for the purchase
or authorization of Merchant'sservices
and productsincluding to direct
but not limited deposit
of any
checks into
a bank accountwithoutscanninginto the GSLcicctronic (b) Merchant
check processes; changes its =ngments with Processorin
(c) Merchant
any way that is adverse to GSL; changes the electonlc through
check processor whichthe Receiptsare settled from
Process or to
FILED: NEW YORK COUNTY CLERK 12/20/2018 10:29 AM INDEX NO. 656346/2018
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 12/20/2018
anotherelectronic or permits
check processor, any event to occur
that could
cause diversion
of any of Merchant's
check transactions
to another
processor;(d) Merchant the operation
interrupts of this business
(other natural
than adverse weather, disasters or acts of God)
transfers,
moves,
or otherwise
sells, disposes, transfers conveysits business
or assets without
(i) the express prior
writtenconsentof GSL, and (ii)
the written
agreement of any purchaser
or transferee of all of Merchant's
to the assumption under this Agreement
obligations pursuanttodocumentation
to GSL;
satisfactory (e) Merchantdemo±ates an intent
to default
on thisagreement to either
by threatening cease paymentsor default
on any
provisionwithin or (f) Merchant
this Agreement; takes any action,
fails or offers
to take any action, any incentive-economic or otherwise-
the result
of whichwillbe to induce
any customeror customers
to pay for Merchant's with
services any means other than checks that are
settled through
Processor.
These protections
are in addition
to any other
remediesavailable
to GSL at law, or otherwise
in equity pursuantto
Protection
this Agreement. 1. The full
uncollected
Purchase Amount plusall fees due under this Agrccment
and the attached
Security
Agreement become due and payable immediately.
in full Protection2. GSL may enforcethe provisions
of the Personal
Guarantee of
Performance Protection
against the Guarantor(s). 3. Merchantshall, upon
executionof this Agreement,
delivertoGSL an executedConfession
of Judgmentin favorof GSL in the amount
of the Purchase Amountstated in the Agreement
alongwithlegalfees calculated
at twenty
five
percent(25%) price
of the purchased made and interest.
less any payments Upon breachof any provision
in paragraphs
L10, 2.9, and/or
3.1,
GSL may enterthatConfessionofJudgment as ajudgment withtheClerk oftheCourt andexecutethereon.Protection4.GSL may enforceits
security in the Collateral
interest in the Security
identified Agreement herein.
Protection5. GSL may proceedto protect
and enforce
its rights
and remediesby lawsuit.
Inany such lawsuit,
in whichGSL shall
recover judgmentagainst Merchant,
Merchant shall be liable
for all of
GSL's
attorneys'
costs of lawsuit, but not limited
including to all reasonable fees and court
costs. Protection
6. Merchant upon
shall, executionof this
Agreement, deliver
to GSL an executedassignmentof lease of Merchant's
premisesin favorof GSL.Upon breach in this
of any provision
paragraph1.12, GSL may exerciseits rights
undersuch assignmentof lease. Protection
7. GSL may debit Merchant's
depositoryaccounts
wherever situated
by means of ACH debitor facsimile on a computer-generated
signature check drawn on Merchant'sbank accountor
in an amount
otherwise, consistent
with the Specified
Percentage.
Protection8. GSL shall have the right,
withoutwaiving any of its rights
and
remediesand withoutnoticeto Merchantand/or to notify
Guarantor(s), Merchant'screditcard processor h-d-
of the sale of Receipts and
to direct card processor
such credit to make paymentto GSL of all
or any portion
of the amounts
receivedby such credit
card processor
on
behalfof Merchant.Merchant herebygrants to GSLan irrevocable
power - of-attorney,
which power-of-attorney be coupled
shall withan
and hereby
interest, appointsGSL or any of GSL's as Merchant's
representatives attomey-in to take any and all
-fact, actionnecessary to direct
such new or additional
credit to make payment
card processor toGSL as contemplated
by this Section.
of Isfermation.
1.11 Protection Merchant and each person
signingthisAgreement on behalfof Merchantand/oras Owner,in respect of himself
or
herself
personally,asthcrizes
GSL to disclose
aforma+lon concerningMerchant's and each Owner'sand/or credit
Guarantor(s)'s standingand
businessconductonly,to agents, affiliates, and credit
subsidiaries, reportingbureaus. Merchant, and Owner(s)
Guarantor(s) herebywaives to
the maximum extent permitted
by law any claimfordamages against
GSL or any of its affiliates to any (1) investigation
relating under+*en by
or on behalf
GSL as permitted
by this Agreement
and/or(ii)disclosure
of information
as permitted
by thisAgreement.
1.12 Confidentiality.
The terms of this Agreement
and conditions and confidential
are proprietary unless required
by law.Merchant shall not
disclose
this information
to anyoneother than its attorney, or
accountant, service
similar providerandthen onlytotheextentsuch person uses
the information
solelyfor the purpose Merchant
of advising and first
agrees in writing
to be bound by the terms
of this Action.
Preview
FILED: NEW YORK COUNTY CLERK 12/20/2018 10:29 AM INDEX NO. 656346/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 12/20/2018 "H" EXHIBIT FILED: NEW YORK COUNTY CLERK 12/20/2018 10:29 AM INDEX NO. 656346/2018 Contract ID# NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 12/20/2018 Sales Partner: GTR SOURCE LLC .MERCHANT AGREEMENT 2018 Agreement dated November 7, between GTR Source LLC ("GSL") and the Merchant below listed ("MERCRANT") (Month) (Day) (Year) MERCEANT INFORMATION Merchant'sLegalName: MEDISALE INC D/B/A: MEDISALE State ofincorporation FL / organization: FederalTax ID Type of Entity (circle one) Corporation Limited CompanyLimited Liability Partnership LimitedLiabilityPartnership Sole Proprictrship 10151 DEERWOOD PARK BLDG 200 SUITE 250 JACKSONVILLE, FL 32256 PhysicalAddress: City: State: zip: Contact Name: ContactNumber: Email: 10151 DEERWOOD PARK BLDG 200 SUITE 250 JACKSONVILLE, FL 32256 MailingAddress: City: state zip: PURCHASE AND SALE OF FUTURE RECEIVABLES ("Merchant" or ("GSL" Merchant or "Buyer") (making GSL the absoluteowner) in considerationof the fundsprovided ("Purchase "Seller") herebysells, assignsandtransfersto GSL Price") customers' specifiedbelow, all of Merchant's future accounts,contractrights andotherendfemed arising from or relating to the paymentof moniesfrom Merchant's and/orotherthird party "Receipts" payors(the definedasall paymentsmadeby cash,check,electronictransferor otherform of monetarypaymentin the ordinary courseof the Merchant's business),for the payments dueto Merchantasa result of Merchant's saleof goodsor services(the "Transactions")until the amountspecifiedbelow (the "PurchasedAmount") hasbeendeliveredby or on behalf of Merchantto GSL. ThePurchasedAmount shall be paid to GSL by Merchant's irrevocably directing and authorizing that therebe only one depositingbank account,which accountmustbe acceptableto, and pre- approvedby, GSL (the "Account") into which MerchantandMerchant's customersshall remit the percentagespecifiedbelow (the "Specified Percentage")of the Merchant's settlement amountsduefrom eachTransaction,until suchtime asGSL receivespaymentin full of the PurchasedAmount. Merchant herebyauthorizesGSL to ACH Debit the specifiedremittances from the merchant'sAccount on a daily basisandwill provide GSL with all requiredaccesscodes,and monthly bankstatements.Merchantunderstandsthat it is responsiblefor ensuringthat the andwill beheld responsiblefor any feesincurred by GSL resulting from a rejectedACH attemptor an eventof specifiedpercentageto be debitedby GSL remainsin the Account default. (SeeAppendix A) GSL is not responsiblefor any overdraftsor rejectedtransactionsthat may result from GSL's ACH debiting the specifiedamountsunderthe terms of this agreement.GSL will debitthe specific daily amounteachbusinessday andupon receiptof the Merchant's monthly bank statementson or aboutthe eighteenthday of eachmonth reconciletheMerchant's Account by either crediting or debiting the differencefrom or backto the Merchant'sAccount so that the amountdebitedpermonth equalsthe specifiedpercentage.GSL may, uponMerchant's request,adjustthe amountof any paymentdueunderthis Agreementat GSL's solediscretionandasit deemsappropriate.Notwithstandinganything to the contrary in this Agreementor any otheragreementbetweenGSL andMerchant, uponthe violation of any provision containedin SectionL11 of the MERCHANT AGREEMENT TERMS AND CONDITIONS or the occurrenceof anEvent of Default under Section3 of the MERCHANT AGREEMENT TERMS AND CONDITIONS, the SpecifiedPercentageshall equal 100% A list of all feesapplicable underthis Agreementis containedin AppendixA. 375,000.00 562,125.00 Tote PurchasePrice. $ Specified Percentage: % Estimated Daily Amount:$ $ Total Purchased Amount:$ THE MERCHANT AGREEMENT TERMS AND CONDITIONS SET FORTH ON PAGE 2, THE "SECURITY AGF-WEurNT AND GUARANTY" AND THE "ADMINISTRATIVE FORM HEREOF, ARE ALL HEREBY INCORPORATED IN AND MADE A PART OF THIS MERCHANT pnpryurNT. FOR THE MERCHANT (#1) By JAMES ELLIOT DAVIS II (Pnnt Name and latle) (Signature) FOR THE MERCHANT (#2) Sign Here (Print Name and Title) (Signature) OWNER#1 By JAMES ELLIOT DAVIS II Here Sign (Print Name) (Signature) OWNER #2 By Sign Here (Print Name) (Signature) GTR SOURCE LLC By SalesAssociateName: (Company Officer) (Signature) GTR Source LLC 1111 JohnStreetSuite 1210 I NewYork INY 10038] Ph.(855)662-9303 Fax (855) 204-0222 FILED: NEW YORK COUNTY CLERK 12/20/2018 10:29 AM INDEX NO. 656346/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 12/20/2018 MERCHANT AGREEMENT TERMS AND CONDITIONS L TERMS OF ENROLLMENT PROGRAM 1.1 Merchant DepositAgrccracnt.Merchant shallexecutean agreement(the "MerchantDepositArmet") acceptabletoGSL and appoint a Bank seceptable to obtain electronic fund and/or"ACH" payments. to GSL, transfer services Merchant shall provide CMS and/orits authorizedagent with all of the information, authorizations and passwordsnecessary to verify Merchant's and deposits receipts receivables, into the account Merchant shall authorize GSL and/or its agent to deduct amounts owed to GSL for the Receipts as specified hereinfrom settlement amounts which would otherwisebe due to Merchant from electronic check transactions and to pay such amounts to GSL by permittingGSL to withdrawthe specified percentages by ACH debitingof the account. shall be irrevocable The authorization absent GSL's writtenconsent. 1.2 Future Purchases.GSL reserves the right to rescind the offer to make any purchasepaymentshereunder,in its sole discretion. 1.3 Financial ConditionMerchant and Guarantor(s)authorize GSL and its agents to investigate theirfinancial and history, responsibility and will provideto GSL any bankor financial tax statements, etc. returns, asGSL deems necessarypriortooratany timeafterexecutionof this Agreement. A photocopy of this authorization willbe deemed as acceptable for release of financial infomtion GSL is authorized to update such information and financial profiles from timeto timeas it deems appropriate. 1.4 Transactional History.Merchant authorizesGSL and its agents to investigate their financial and history, responsibility and willprovideto GSL bank any authorizations, or financial statemen+s, tax returns, etc., as GSL deems necessary in its sole and absolute prior discretion to any timeafter the execution of this Agreement. A photocopy of this authorization willbe deemed as acceptable as an authcrizatica forrelease of financial and credit information. Merchant waives,to themaximum extentpermittedby law,any claimsfor damages against GSL or any of its affiliates relating und-*ahn to any investigation by or on behalf ofGSL as permitted by this Agreement or disclosure of information as permittedby this Agreement. L5 Indemnification.Merchant and Guarantor(s) and severally jointly inderanifyand holdharmless its officers, Processor, directors and -haders against all liabilities losses, damages, claims, and expenses (including reasonableattorney's fees) incurred by Processorresulting from asserted by GSL (a) claims formonies owed to GSL fromMerchant and (b) actions taken by Processorin reliance upon informationor instructions providedby GSL. 1.6 No Liability. In no event will GSL be liable for any claims under asserted by Merchant any legal theory forlost profits, lost revenues, lost businessopportunities, exemplary, punitive, special, incidental, or consequential indirect, damages, each of which is waivedby Merchant and Guarantor(s). are nonetheless In the event these claims and Guarantors raised, Merchant willbe jointly liableforall of GSL's legalfees and expenses resulting therefrom. 1.7 Reliance on Terms. Sections1.1, 1.7, 1.8 and 2.5 of this Agreement are agreed to for the benefit of Merchant,GSL and Processor, and notwithstandingthe fact that Processor is not a party of this Agreement, Processormay relyupon their terms and raise them as a defense in any action. 1.8 Sale of Receipts. (THIS IS NOT A LOAN) Merchant a portion is selling of a future revenue stream to GSLat a discount, not borrowing money from GSL. There is no interest rate or paymentscheduleand not time periodduringwhich the PurchasedAmount must be collected by GSL. IfFutureReceiptsare remitted more slowlythan GSL may have anticipated or projected because Merchant'sbusiness has slowed down, or if the full PurchasedAmount is never remitted because M-han+'s business went bankrupt or otherwise in the ordinary ceased operations course of business, and Merchanthas not breached this Agreement, Merchant would not owe anything to GSL and would not be in breach of or under default this Agreement. GSL the Purchased is buying Amount of Future Receiptsknowing the risks that Merchant's business may slow down or fail, and GSL assumes these risks based on Merchant'srepresentations, and covenants warranties, in this Agreement, Merchant transfers to GSL and complete fill ownership of the Purchased Amount of FutureReceiptsand Merchantretains no legal or equitable interest therein. Merchant agrees that it will treat Purchase Price and PurchasedAmount in a mannerconsistant witha sale in its accounting records Merchant and tax returns. agrees that GSL to audit Merchant's is entitled accountingrecords upon reasonableNotice in order to verify compli°_=ce. Merchant waivesany rights of privacy, or taxpayer confidentiality privilege in any such litigation or arbitration in whichMerchant assets that this transaction other than a sale of future is anything receipts. 1.9 Power Merchant of Attorney. appoints irrevocably GSL as its agent and attorney-in-fact withfull to take any action authority or execute any instrumentor documentto settle all obligations due to GSL from or in the case of a violation Processor, by Merchant 1.2 or the of Section occurrenceof an Event 4 hereof ½+a+ian· of Default underSection fromMercliant,under this Agreement, includingwithout (i) to obtain and adjustinsurance; to collect (ii) monies due under or in respect of any of the Collateral; due or to become to receive, (ii) endorse,and collect any checks, notes, drafts, documents, instruments, orchattelpaperinconneden with clause or (i) clause above; (ii) (iv)tosignMerchant'sname GSL' bill on any invoice, or assignment of lading, customers directing or accountdebtorsto deliver futurereceipts to directly and (v) to file any claimsor take any action or institute which any proceeding GSL may deem necessary for the collection of any of the unpaid Purchased Amount fromthe Collateral, or otherwise to enforceits rights withrespect to the delivery Amount. of the Purchased 1.10 ProtectionsagainstDefault The following Protections1 through8 may be invokedbyGSL, 4-da+aly and withoutnotice to Merchant in as prescribed an event of default, by Section3.1and/or2.9,OR intheeventthat:(a)Merchanttakesany actiontodiscouragetheuse of electronic that are settled through check processing or permits Processor, any event to occur have an adverse effect that could on the use, acceptance, of checks for the purchase or authorization of Merchant'sservices and productsincluding to direct but not limited deposit of any checks into a bank accountwithoutscanninginto the GSLcicctronic (b) Merchant check processes; changes its =ngments with Processorin (c) Merchant any way that is adverse to GSL; changes the electonlc through check processor whichthe Receiptsare settled from Process or to FILED: NEW YORK COUNTY CLERK 12/20/2018 10:29 AM INDEX NO. 656346/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 12/20/2018 anotherelectronic or permits check processor, any event to occur that could cause diversion of any of Merchant's check transactions to another processor;(d) Merchant the operation interrupts of this business (other natural than adverse weather, disasters or acts of God) transfers, moves, or otherwise sells, disposes, transfers conveysits business or assets without (i) the express prior writtenconsentof GSL, and (ii) the written agreement of any purchaser or transferee of all of Merchant's to the assumption under this Agreement obligations pursuanttodocumentation to GSL; satisfactory (e) Merchantdemo±ates an intent to default on thisagreement to either by threatening cease paymentsor default on any provisionwithin or (f) Merchant this Agreement; takes any action, fails or offers to take any action, any incentive-economic or otherwise- the result of whichwillbe to induce any customeror customers to pay for Merchant's with services any means other than checks that are settled through Processor. These protections are in addition to any other remediesavailable to GSL at law, or otherwise in equity pursuantto Protection this Agreement. 1. The full uncollected Purchase Amount plusall fees due under this Agrccment and the attached Security Agreement become due and payable immediately. in full Protection2. GSL may enforcethe provisions of the Personal Guarantee of Performance Protection against the Guarantor(s). 3. Merchantshall, upon executionof this Agreement, delivertoGSL an executedConfession of Judgmentin favorof GSL in the amount of the Purchase Amountstated in the Agreement alongwithlegalfees calculated at twenty five percent(25%) price of the purchased made and interest. less any payments Upon breachof any provision in paragraphs L10, 2.9, and/or 3.1, GSL may enterthatConfessionofJudgment as ajudgment withtheClerk oftheCourt andexecutethereon.Protection4.GSL may enforceits security in the Collateral interest in the Security identified Agreement herein. Protection5. GSL may proceedto protect and enforce its rights and remediesby lawsuit. Inany such lawsuit, in whichGSL shall recover judgmentagainst Merchant, Merchant shall be liable for all of GSL's attorneys' costs of lawsuit, but not limited including to all reasonable fees and court costs. Protection 6. Merchant upon shall, executionof this Agreement, deliver to GSL an executedassignmentof lease of Merchant's premisesin favorof GSL.Upon breach in this of any provision paragraph1.12, GSL may exerciseits rights undersuch assignmentof lease. Protection 7. GSL may debit Merchant's depositoryaccounts wherever situated by means of ACH debitor facsimile on a computer-generated signature check drawn on Merchant'sbank accountor in an amount otherwise, consistent with the Specified Percentage. Protection8. GSL shall have the right, withoutwaiving any of its rights and remediesand withoutnoticeto Merchantand/or to notify Guarantor(s), Merchant'screditcard processor h-d- of the sale of Receipts and to direct card processor such credit to make paymentto GSL of all or any portion of the amounts receivedby such credit card processor on behalfof Merchant.Merchant herebygrants to GSLan irrevocable power - of-attorney, which power-of-attorney be coupled shall withan and hereby interest, appointsGSL or any of GSL's as Merchant's representatives attomey-in to take any and all -fact, actionnecessary to direct such new or additional credit to make payment card processor toGSL as contemplated by this Section. of Isfermation. 1.11 Protection Merchant and each person signingthisAgreement on behalfof Merchantand/oras Owner,in respect of himself or herself personally,asthcrizes GSL to disclose aforma+lon concerningMerchant's and each Owner'sand/or credit Guarantor(s)'s standingand businessconductonly,to agents, affiliates, and credit subsidiaries, reportingbureaus. Merchant, and Owner(s) Guarantor(s) herebywaives to the maximum extent permitted by law any claimfordamages against GSL or any of its affiliates to any (1) investigation relating under+*en by or on behalf GSL as permitted by this Agreement and/or(ii)disclosure of information as permitted by thisAgreement. 1.12 Confidentiality. The terms of this Agreement and conditions and confidential are proprietary unless required by law.Merchant shall not disclose this information to anyoneother than its attorney, or accountant, service similar providerandthen onlytotheextentsuch person uses the information solelyfor the purpose Merchant of advising and first agrees in writing to be bound by the terms of this Action.