Preview
FILED: OSWEGO COUNTY CLERK 10/18/2023 03:47 PM INDEX NO. EFC-2023-1473
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 10/18/2023
Exhibit A
FILED: OSWEGO COUNTY CLERK 10/18/2023 03:47 PM INDEX NO. EFC-2023-1473
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 10/18/2023
DocuSign Envelope ID: 441BADE8-6A85-42BO-BA50-BO9449458DDF
SWIF APITAL
FUTURE RECElVABLES SALE AGREEMENT
Date:
March 15, 2017
Business:
PERFORMANCE HEATING AND COOLING, INC.
662 S MAIN ST
CENTRALSQUARE NY 13036
PURCHASE SUMMARY
Purchase Price:
The dollar amount paid to Business that Purchaser is paying now for the Amount $ 12000.00 (1)
Sold.
Amount Sold:
$ 14027.00 (2)
The dollar amount of the Future Receivables that are being sold to Purchaser.
Origination Fee Percentage: ( 2.500% of Line 1)
The dollar amount deducted from Business's Remittance Account the first business $ 300.00 (3)
day after Business receives the Purchase Price.
REMITTANCE SUMMARY
Remittance Frequency
Expected frequency the Collected Amount is withdrawn from the Business's (4)
weekly
Remittance Account.
Collected Amount:
Dollar amount anticipated to be collected from Business's Remittance Account at
the specified Remittance Frequency based upon the Purchased Percentage. The
Collected Amount is not a fixed remittance amount and is subject to change $ 292.23
(5)
pursuant to the Future Receivables actually generated by Business and the
Alternative Remittance Amount provisions of Section 3(c) of the Terms and
Conditions.
Purchased Percentage:
The percentage of Business's Future Receivables that are being sold to Purchaser. 2.00% (6)
(Please note that this is not an interest rate).
DS DS
1 of 13 Initials of Individual Signer(s
FILED: OSWEGO COUNTY CLERK 10/18/2023 03:47 PM INDEX NO. EFC-2023-1473
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 10/18/2023
DocuSign Envelope ID: 441BADE8-6A85-42BO-BA50-B09449458DDF
Purchaser: Swift Financial Corporation, 3505 Silverside, Suite 200, Wilmington, DE 19810
A. By signing below (either manually or electronically), you, the undersigned: (1) represent that you are
authorized to bind the Business to the terms and conditions of this Agreement; (2) agree that the Purchase
Price will be used solely for business purposes and not for personal, family or household purposes; (3)
acknowledge that you have read and understand this entire Agreement, including, without limitation, the
above Purchase Summary, Remittance Summary, and the Additional Terms and Conditions (including the
Arbitration Provision), and the Remittance Authorization; (4) agree to all the terms and conditions of this
Agreement on behalf of the Business; and (5) acknowledge that signing any other person's name below,
without such person's express consent, constitutes fraud.
B. This Agreement and the resulting sale of Business's Future Receivables is a commercial transaction. Because
this is a sale and not a loan, there is no defined repayment term, there is no specific date by which the entire
Amount Sold must be delivered to Purchaser. If Business's business slows down and the delivery rate of
Future Receivables decreases or if Business's business closes (and in each case Business has not otherwise
violated the terms of this Agreement), there will not be an Event of Default under this Agreement.
C. Purchaser's obligations under this Agreement will not be effective unless and until Purchaser has completed
its review of the Business and paid the Purchase Price to Business.
D. BUSINESS CANNOT SELL ITS FUTURE RECElVABLES TO ANYONE ELSE OR ENTER INTO A FINANCING
ARRANGEMENT REQUIRING DAILY OR WEEKLY REMITTANCES DURING THE TERM OF THIS AGREEMENT
WITHOUT PURCHASER'S PRIOR WRITTEN CONSENT. VIOLATION OF THIS REQUIREMENT WILL RESULT IN AN
EVENT OF DEFAULT AND THE ASSESSMENT OF CERTAIN FEES.
On Behalf of Business: Guarantor:
DocuSigned
by: DocuSlgned
by:
64856C2965A9466... 84856C2B55A9466.
KENNETH SCOTT JR KENNETH SCOH JR
Name (Print):
Vi ce President 3M2M7
Title: Date:
3/17/2017 °°°
Guarantor:
By:
327D57D73223427
On Behalf of Business (if needed): Name (Print):
DocuSignedby:
3/17/2017
By: Date:
327D57D73223427.
sean Beardsl ey
Name (Print): Guarantor:
President
Title: By:
3/17/2017
Date: Name (Print):
Date:
Swift Financial Corporation agrees to the terms of this Agreement:
Date: 3/17/2017
Name: Al Natali
DS DS
Title: Authorized Representative
FILED: OSWEGO COUNTY CLERK 10/18/2023 03:47 PM INDEX NO. EFC-2023-1473
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 10/18/2023
DocuSign Envelope ID: 441BADE8-6A85-42BO-BA50-BO9449458DDF
ADDITIONAL TERMS AND CONDITIONS
1. General Information and Definitions.
(a) This Future Receivables Sale Agreement (this "Agreement") governs the terms of the purchase of
Business's Future Receivables (the "Purchase") by Swift Financial Corporation aka Swift Capital, a
("Swift"
Delaware corporation or "Purchaser").
"we," "us" "our"
(b) The words "Purchaser", and mean Swift and Swift's successors and assigns (and for
purposes of the Arbitration Provision, the related persons identified in the Arbitration Provision).
"you," "your," "yours" "Business"
(c) The words and mean the entity identified as Business on the first page
of this Agreement.
"Guarantor"
(d) means each person who signs this Agreement in his or her individual capacity as Guarantor.
Address"
(e) "Notice means Swift Capital, 3505 Silverside, Suite 200, Wilmington, DE 19810 or any updated
notice address that we provide by notice to you at any time.
"Receivables" customers'
(f) means any and all payment rights arising from or occurring as a result of your
purchases of goods and/or services from you, whether by cash, checks, money orders, electronic fund
transfers ("EFTs"), payment cards (including, without limitation, credit cards, charge cards, debit cards,
prepaid cards, benefit cards or similar cards), extensions of credit or any other forms of payment now
Receivables"
known or hereinafter developed. "Future refers to any Receivables received by Business
after this Agreement becomes effective.
(g) Certain other terms are defined above in the Purchase Summary, Remittance Summary, or are defined
below, including in the Remittance Authorization.
(h) The Arbitration Provision, authorization to check credit, express permission to contact you at any
telephone number you provide to us, and consent to receive information electronically are all effective
immediately as to Business and each Guarantor. The remainder of this Agreement becomes effective if,
and only if, we, in our sole discretion, paid the Purchase Price. We may assign all or any part of this
Agreement, and any rights, licenses, responsibilities and/or obligations contained herein without
restriction or limitation. YOU AGREE TO USE THE PURCHASE PRICE SOLELY FOR BUSINESS PURPOSES
AND NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES.
2. Delivery of Future Receivables. In exchange for the Purchase Price, Business sells to Purchaser the Amount
Sold. You shall deliver to us any and all amounts due under this Agreement, including, without limitation,
the Purchased Percentage, or Alternative Remittance Amount if applicable, up to the Amount Sold, the
Origination Fee (Line 3 of the Purchase Summary) and any and all applicable fees. There is no interest rate
nor any fixed time period during which the Amount Sold must be collected by Purchaser. Purchaser is
entering into this Agreement knowing the risks that Business's business may slow down or fail, and
Purchaser assumes these risks based on Business's representations, warranties and covenants set forth in
this Agreement, which are designed to give Purchaser a reasonable and fair opportunity to receive the
benefit of its bargain.
3. Origination Fee and Remittances.
(a) Origination Fee: The Origination Fee is due the first business day after we pay the Purchase Price to you.
The Origination Fee is not refundable.
(b) Delivery of Future Receivables. Until the Amount Sold is collected by us in full, along with any assessed
fees, you shall deliver to us the Purchased Percentage, or the Alternative Remittance Amount if
applicable, according to the Remittance Frequency. Your first remittance will be due either: (i) the first
business day after you receive the Purchase Price if your Remittance Frequency is daily; or (ii) the first
Weekly Remittance Day you specify in Exhibit A after you receive the Purchase Price, if your Remittance
Frequency is weekly. If you do not select a Weekly Remittance Day, we will select one in our sole
discretion. We may add the Returned Payment Fee or other fee(s) to any payment.
DS DS
3 of 13 Initials of Individual Signer(s):
FILED: OSWEGO COUNTY CLERK 10/18/2023 03:47 PM INDEX NO. EFC-2023-1473
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 10/18/2023
DocuSign Envelope ID: 441BADE8-6A85-42BO-BA50-BO9449458DDF
(c) Alternative Remittance Amount. At Purchaser's option, Purchaser may allow Business to make an
Amount"
"Alternative Remittance each payment day until Purchaser receives full delivery of the Amount
Sold and any assessed fees. In such circumstances, Business shall deliver to Purchaser Business's monthly
bank statements for all bank accounts (the "Bank Statements") within ten (10) days of Business's receipt
thereof. If, upon Purchaser's receipt of Bank Statements, such Bank Statements reflect that Purchaser has
collected from Business's Remittance Account(s) during such month an amount in excess of the Purchased
Percentage of Business's Future Receivables for such month, Purchaser shall promptly credit the
Business's Remittance Account with an amount equal to the difference between (i) theamount actually
collected by Purchaser from the Business's Remittance Account during such month and (ii) an amount
equal to the Purchased Percentage of Business's Future Receivables for such month. If, upon Purchaser's
receipt of Bank Statements for all Bank Accounts for a given month, such Bank Statements reflect that
Purchaser has collected from the Business's Remittance Account during such month an amount less than
the Purchased Percentage of Business's Future Receivables for such month, Business shall promptly owe
and deliver to Purchaser an amount equal to the difference between (i) the amount actually collected by
the Purchaser from the Business's Remittance Account during such month and (ii) an amount equal to the
Purchased Percentage of Business's Future Receivables for such month. If the amount collected from the
Business's Remittance Account is within $5 of the Purchased Percentage of Business's Future Receivables
for such month, neither Purchaser nor Business is required to make additional transfers for that month.
This right to make an Alternative Remittance Amount terminates once an Event of Default occurs.
4. Eggs. Purchaser does NOT CHARGE ANY BROKER FEES to Businesses that sell their Future Receivables to
Purchaser. If Business is charged such a fee, it is not being charged by Purchaser. Additionally, because this
is not a loan, Purchaser does not charge any interest, finance charges, points, late fees or similar fees. To the
extent permitted by applicable law, we will charge the following fees, in addition to the Origination Fee:
(a) Returned Remittance Fee. If for any reason any EFT or other remittance is returned unpaid or cannot be
processed, we will charge a $35 fee. We will charge this fee only once for any returned or dishonored
remittance, regardless whether it is honored upon resubmission.
(b) Collections Administration Fee. Upon the occurrence of any Event of Default (as defined below), we will
charge a fee in the amount of 10% of the then-current remaining Amount Sold at the time the fee is
assessed, less any assessed fees.
(c) Stacking Fee: if Business sells any of Business's Future Receivables without Purchaser's prior written
"stacking"
consent (including, but not limited, or Business entering into a financing arrangement
requiring Business to make daily or weekly payments or remittances), in addition to any Collections
Administration Fee, Business will be charged 10% of the original Amount Sold to reflect the
increased risk to Purchaser of being paid.
5. Performance Guaranty.
(a) By signing this Agreement, each Guarantor assumes, jointly and severally, the full, complete and timely
performance of all of Business's obligations under the Agreement if a breach of any of Business's
representations, warranties or covenants occurs. If such a breach occurs, then Guarantor(s) shall
perform under this Agreement including paying, or causing to be paid, any amounts due that Purchaser
would otherwise be entitled to collect from Business. This guaranty is a guaranty of performance and
not a guaranty of collection. Purchaser may proceed to enforce its rights against each Guarantor prior
to, contemporaneously with or after, any enforcement against Business or without any enforcement
Guarantor(s)'
against Business. The obligations are unconditional and absolute and shall remain in full
force and effect and without regard to and shall not be released, discharged or in any way affected by
(a) any amendment to this Agreement; (b) any exercise or non-exercise of or delay on exercising any
right, remedy, power or privilege under or in respect of this Agreement; (c) any bankruptcy, insolvency,
arrangement, composition, assignment for the benefit of creditors, or similar proceeding commenced by
or against Business or any of its officers, directors or principals; (d) defects in the formation or authority
of Business; or (e) any other circumstance that might otherwise constitute a legal or equitable discharge
of a guarantor or surety. If payment of any sum by Business is recovered as a preference or fraudulent
conveyance under any bankruptcy or insolvency law, the liability of Guarantor(s) under this guaranty
4 of 13 Initials of Individual Signer(s)
FILED: OSWEGO COUNTY CLERK 10/18/2023 03:47 PM INDEX NO. EFC-2023-1473
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 10/18/2023
DocuSign Envelope ID: 441BADE8-6A85-42BO-BA50-B09449458DDF
shall continue and remain in full force and effect notwithstanding such recovery. By this provision, the
Guarantor(s) is notified that a negative credit report reflecting on his/her credit record may be
submitted to a credit reporting agency if the provisions of this Section are triggered by a breach of this
Agreement by Business. Each Guarantor acknowledges receiving a copy of this Agreement and having
read the terms of this Agreement, including, without limitation, the guaranty set forth in this paragraph,
and the Guarantor's signature will serve as confirmation that the Guarantor understands all terms and
conditions of this Agreement. Each Guarantor agrees that this guaranty is continuing and absolute and
that Purchaser may modify or extend the terms of this Agreement, or compromise, settle or release any
other obligor under this Agreement without notice or consent by Guarantor and without affecting
Guarantor's liability. For the avoidance of doubt, Guarantor is obligated to pay the Amount Sold and
any assessed fees only upon the occurrence of an Event of Default.
(b) Provisions of Agreement Applicable to Each Guarantor: Sections 8 (Our Rights upon Default), 9
(Representations and Warranties), 10 (Covenants), 14 (Business Information; Reporting Information to
Credit Bureaus), 15 (Telephone Recordings), 16 (Contacting You; Phone and Text Messages); 17
(Correspondence), 18 (Bankruptcy), 21 (Limitation of Liability), 22 (Waiver of Right to Trial by Jury) and
24 (Arbitration Provision) and any other relevant Section apply fully to each Guarantor individually, and
"you," "your"
each reference to or in such Sections of this Agreement shall be deemed to apply not just
to Business but also to each Guarantor individually.
6. Right to Cancel. Business may cancel this transaction at any time within ten (10) days after Purchaser
forwards any or all of the Purchase Price to Business. However, in order to cancel the transaction, Business
must return to Purchaser the entire amount of the Purchase Price received by Business within that same ten
non-
(10) day period. Notwithstanding the foregoing, the Origination Fee (if any) is non-cancellable and
refundable.
7. Events of Default. Subject to applicable law, we may declare you to be in default under this Agreement if
any one or more of the following events occurs and is continuing (each an "Event of Default"):
(a) You fail to make any required remittance of Future Receivables or payment when due except as
otherwise permitted by this Agreement;
(b) You fail to inform Purchaser prior to a scheduled daily or weekly remittance that the Remittance
Account has insufficient funds due solely to a decline in Receivables as demonstrated by written
documentation provided by Business, such that a scheduled remittance is returned or dishonored;
(c) You fail to maintain the Bank Accounts (as defined in Exhibit A) or open a new bank account to deposit
Receivables without our consent;
(d) You fail to provide copies of all documents and requested information related to your financial or
banking affairs within five (5) days after a request by us;
(e) You use any portion of the Purchase Price for personal, family or household purposes or to fund a
dividend or other distribution to Business owners;
(f) You breach any representation, warranty, agreement, promise or covenant set forth in this Agreement,
or you or any of your employees or agents provides us with any false or misleading information;
(g) You make any act or omission that has the result of interfering with or circumventing, the remittance or
payment to us of any amount owed under this Agreement, including, but not limited to: (i) conducting
business under an alternative name; (ii) depositing Receivables into
any bank accounts other than the
Bank Accounts; (iii) encouraging customers to make payments by cash that you fail to deposit into the
Bank Accounts; or (iv) manipulating the use and form of business entities for the purpose of avoiding
your obligations under this Agreement;
(b) You fail to permit us or our agent to conduct a site inspection of your business at any reasonable time
during the term of this Agreement;
(i) Without our prior express written consent, you enter into any credit, cash advance or other financing
arrangement requiring daily or weekly payments or remittances; on on
5 of 13 Initials of Individual Signer(s).
FILED: OSWEGO COUNTY CLERK 10/18/2023 03:47 PM INDEX NO. EFC-2023-1473
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 10/18/2023
DocuSign Envelope ID: 441BADE8-6A85-42BO-BA50-BO9449458DDF
(j) Without our prior express written consent, you sell any of your assets outside of the ordinary course of
business;
(k) Without our prior express written consent, you sell any of your Future Receivables while you owe any
amount under this Agreement;
(1) Without our prior express written consent, you undertake or permit a change of control of your
business;
(m) You become subject to any material judgment or garnishment following the date of this Agreement;
(n) You default on any other agreement that you have with us or any of our affiliates.
8. Our Rinhts Upon Default. Upon any Event of Default,: (a) all unpaid amounts of the Amount Sold and any
assessed fees shall be immediately due and payable or, including all Receivables or Future Receivables until
the entire balance, fees and deficiencies are paid in full; (b) commence an action against you to collect all
amounts owed in connection Agreement; with(c) charge and recover
this from you the Collections
Administration Fee and/or the Stacking Fee (if applicable), all of our out-of-pocket costs and expenses,
attorneys'
including reasonable fees, arbitration costs, and/or court costs, incurred by us in connection with
the defense, protection or enforcement of our rights under this Agreement (including, without limitation, in
connection with any bankruptcy proceeding) and any other fees that may be due and owing (collectively,
"Costs of Collection"); (d) withdraw funds from any of your Bank Accounts by ACH debit, up to the unpaid
amount that you owe us under this Agreement (including the fees as set forth in Section 4 and any Costs of
Collection); and (e) we may exercise any and all rights or remedies available to a secured creditor under
Article 9 of the Uniform Commercial Code or analogous state laws. All rights available to us are cumulative
and not exclusive of any other right or remedy available to us in law or equity.
9. Representations and Warrantles. You and any individual signing this Agreement as a Guarantor represent
and warrant to us, as of the date hereof and each day the Amount Sold and any assessed fees remain
unpaid, as follows:
(a) The Future Receivables are not subject to any claims, charges, liens, restrictions, encumbrances or
security interest of any nature whatsoever not disclosed to us prior to executing this Agreement;
(b) As of the date the Purchase Price is paid to Business, Business is not the subject of a bankruptcy or
reorganization proceeding that has not been discharged or dismissed, do not have a plan to make a
bankruptcy filing and have not met with a bankruptcy attorney within the past six months;
(c) All information that you have provided to us is true, correct and accurately reflects your financial
condition and results of operations;
(d) Business has all required permits, licenses, approval, consents and authorizations necessary to conduct
Preview
FILED: OSWEGO COUNTY CLERK 10/18/2023 03:47 PM INDEX NO. EFC-2023-1473 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 10/18/2023 Exhibit A FILED: OSWEGO COUNTY CLERK 10/18/2023 03:47 PM INDEX NO. EFC-2023-1473 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 10/18/2023 DocuSign Envelope ID: 441BADE8-6A85-42BO-BA50-BO9449458DDF SWIF APITAL FUTURE RECElVABLES SALE AGREEMENT Date: March 15, 2017 Business: PERFORMANCE HEATING AND COOLING, INC. 662 S MAIN ST CENTRALSQUARE NY 13036 PURCHASE SUMMARY Purchase Price: The dollar amount paid to Business that Purchaser is paying now for the Amount $ 12000.00 (1) Sold. Amount Sold: $ 14027.00 (2) The dollar amount of the Future Receivables that are being sold to Purchaser. Origination Fee Percentage: ( 2.500% of Line 1) The dollar amount deducted from Business's Remittance Account the first business $ 300.00 (3) day after Business receives the Purchase Price. REMITTANCE SUMMARY Remittance Frequency Expected frequency the Collected Amount is withdrawn from the Business's (4) weekly Remittance Account. Collected Amount: Dollar amount anticipated to be collected from Business's Remittance Account at the specified Remittance Frequency based upon the Purchased Percentage. The Collected Amount is not a fixed remittance amount and is subject to change $ 292.23 (5) pursuant to the Future Receivables actually generated by Business and the Alternative Remittance Amount provisions of Section 3(c) of the Terms and Conditions. Purchased Percentage: The percentage of Business's Future Receivables that are being sold to Purchaser. 2.00% (6) (Please note that this is not an interest rate). DS DS 1 of 13 Initials of Individual Signer(s FILED: OSWEGO COUNTY CLERK 10/18/2023 03:47 PM INDEX NO. EFC-2023-1473 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 10/18/2023 DocuSign Envelope ID: 441BADE8-6A85-42BO-BA50-B09449458DDF Purchaser: Swift Financial Corporation, 3505 Silverside, Suite 200, Wilmington, DE 19810 A. By signing below (either manually or electronically), you, the undersigned: (1) represent that you are authorized to bind the Business to the terms and conditions of this Agreement; (2) agree that the Purchase Price will be used solely for business purposes and not for personal, family or household purposes; (3) acknowledge that you have read and understand this entire Agreement, including, without limitation, the above Purchase Summary, Remittance Summary, and the Additional Terms and Conditions (including the Arbitration Provision), and the Remittance Authorization; (4) agree to all the terms and conditions of this Agreement on behalf of the Business; and (5) acknowledge that signing any other person's name below, without such person's express consent, constitutes fraud. B. This Agreement and the resulting sale of Business's Future Receivables is a commercial transaction. Because this is a sale and not a loan, there is no defined repayment term, there is no specific date by which the entire Amount Sold must be delivered to Purchaser. If Business's business slows down and the delivery rate of Future Receivables decreases or if Business's business closes (and in each case Business has not otherwise violated the terms of this Agreement), there will not be an Event of Default under this Agreement. C. Purchaser's obligations under this Agreement will not be effective unless and until Purchaser has completed its review of the Business and paid the Purchase Price to Business. D. BUSINESS CANNOT SELL ITS FUTURE RECElVABLES TO ANYONE ELSE OR ENTER INTO A FINANCING ARRANGEMENT REQUIRING DAILY OR WEEKLY REMITTANCES DURING THE TERM OF THIS AGREEMENT WITHOUT PURCHASER'S PRIOR WRITTEN CONSENT. VIOLATION OF THIS REQUIREMENT WILL RESULT IN AN EVENT OF DEFAULT AND THE ASSESSMENT OF CERTAIN FEES. On Behalf of Business: Guarantor: DocuSigned by: DocuSlgned by: 64856C2965A9466... 84856C2B55A9466. KENNETH SCOTT JR KENNETH SCOH JR Name (Print): Vi ce President 3M2M7 Title: Date: 3/17/2017 °°° Guarantor: By: 327D57D73223427 On Behalf of Business (if needed): Name (Print): DocuSignedby: 3/17/2017 By: Date: 327D57D73223427. sean Beardsl ey Name (Print): Guarantor: President Title: By: 3/17/2017 Date: Name (Print): Date: Swift Financial Corporation agrees to the terms of this Agreement: Date: 3/17/2017 Name: Al Natali DS DS Title: Authorized Representative FILED: OSWEGO COUNTY CLERK 10/18/2023 03:47 PM INDEX NO. EFC-2023-1473 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 10/18/2023 DocuSign Envelope ID: 441BADE8-6A85-42BO-BA50-BO9449458DDF ADDITIONAL TERMS AND CONDITIONS 1. General Information and Definitions. (a) This Future Receivables Sale Agreement (this "Agreement") governs the terms of the purchase of Business's Future Receivables (the "Purchase") by Swift Financial Corporation aka Swift Capital, a ("Swift" Delaware corporation or "Purchaser"). "we," "us" "our" (b) The words "Purchaser", and mean Swift and Swift's successors and assigns (and for purposes of the Arbitration Provision, the related persons identified in the Arbitration Provision). "you," "your," "yours" "Business" (c) The words and mean the entity identified as Business on the first page of this Agreement. "Guarantor" (d) means each person who signs this Agreement in his or her individual capacity as Guarantor. Address" (e) "Notice means Swift Capital, 3505 Silverside, Suite 200, Wilmington, DE 19810 or any updated notice address that we provide by notice to you at any time. "Receivables" customers' (f) means any and all payment rights arising from or occurring as a result of your purchases of goods and/or services from you, whether by cash, checks, money orders, electronic fund transfers ("EFTs"), payment cards (including, without limitation, credit cards, charge cards, debit cards, prepaid cards, benefit cards or similar cards), extensions of credit or any other forms of payment now Receivables" known or hereinafter developed. "Future refers to any Receivables received by Business after this Agreement becomes effective. (g) Certain other terms are defined above in the Purchase Summary, Remittance Summary, or are defined below, including in the Remittance Authorization. (h) The Arbitration Provision, authorization to check credit, express permission to contact you at any telephone number you provide to us, and consent to receive information electronically are all effective immediately as to Business and each Guarantor. The remainder of this Agreement becomes effective if, and only if, we, in our sole discretion, paid the Purchase Price. We may assign all or any part of this Agreement, and any rights, licenses, responsibilities and/or obligations contained herein without restriction or limitation. YOU AGREE TO USE THE PURCHASE PRICE SOLELY FOR BUSINESS PURPOSES AND NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES. 2. Delivery of Future Receivables. In exchange for the Purchase Price, Business sells to Purchaser the Amount Sold. You shall deliver to us any and all amounts due under this Agreement, including, without limitation, the Purchased Percentage, or Alternative Remittance Amount if applicable, up to the Amount Sold, the Origination Fee (Line 3 of the Purchase Summary) and any and all applicable fees. There is no interest rate nor any fixed time period during which the Amount Sold must be collected by Purchaser. Purchaser is entering into this Agreement knowing the risks that Business's business may slow down or fail, and Purchaser assumes these risks based on Business's representations, warranties and covenants set forth in this Agreement, which are designed to give Purchaser a reasonable and fair opportunity to receive the benefit of its bargain. 3. Origination Fee and Remittances. (a) Origination Fee: The Origination Fee is due the first business day after we pay the Purchase Price to you. The Origination Fee is not refundable. (b) Delivery of Future Receivables. Until the Amount Sold is collected by us in full, along with any assessed fees, you shall deliver to us the Purchased Percentage, or the Alternative Remittance Amount if applicable, according to the Remittance Frequency. Your first remittance will be due either: (i) the first business day after you receive the Purchase Price if your Remittance Frequency is daily; or (ii) the first Weekly Remittance Day you specify in Exhibit A after you receive the Purchase Price, if your Remittance Frequency is weekly. If you do not select a Weekly Remittance Day, we will select one in our sole discretion. We may add the Returned Payment Fee or other fee(s) to any payment. DS DS 3 of 13 Initials of Individual Signer(s): FILED: OSWEGO COUNTY CLERK 10/18/2023 03:47 PM INDEX NO. EFC-2023-1473 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 10/18/2023 DocuSign Envelope ID: 441BADE8-6A85-42BO-BA50-BO9449458DDF (c) Alternative Remittance Amount. At Purchaser's option, Purchaser may allow Business to make an Amount" "Alternative Remittance each payment day until Purchaser receives full delivery of the Amount Sold and any assessed fees. In such circumstances, Business shall deliver to Purchaser Business's monthly bank statements for all bank accounts (the "Bank Statements") within ten (10) days of Business's receipt thereof. If, upon Purchaser's receipt of Bank Statements, such Bank Statements reflect that Purchaser has collected from Business's Remittance Account(s) during such month an amount in excess of the Purchased Percentage of Business's Future Receivables for such month, Purchaser shall promptly credit the Business's Remittance Account with an amount equal to the difference between (i) theamount actually collected by Purchaser from the Business's Remittance Account during such month and (ii) an amount equal to the Purchased Percentage of Business's Future Receivables for such month. If, upon Purchaser's receipt of Bank Statements for all Bank Accounts for a given month, such Bank Statements reflect that Purchaser has collected from the Business's Remittance Account during such month an amount less than the Purchased Percentage of Business's Future Receivables for such month, Business shall promptly owe and deliver to Purchaser an amount equal to the difference between (i) the amount actually collected by the Purchaser from the Business's Remittance Account during such month and (ii) an amount equal to the Purchased Percentage of Business's Future Receivables for such month. If the amount collected from the Business's Remittance Account is within $5 of the Purchased Percentage of Business's Future Receivables for such month, neither Purchaser nor Business is required to make additional transfers for that month. This right to make an Alternative Remittance Amount terminates once an Event of Default occurs. 4. Eggs. Purchaser does NOT CHARGE ANY BROKER FEES to Businesses that sell their Future Receivables to Purchaser. If Business is charged such a fee, it is not being charged by Purchaser. Additionally, because this is not a loan, Purchaser does not charge any interest, finance charges, points, late fees or similar fees. To the extent permitted by applicable law, we will charge the following fees, in addition to the Origination Fee: (a) Returned Remittance Fee. If for any reason any EFT or other remittance is returned unpaid or cannot be processed, we will charge a $35 fee. We will charge this fee only once for any returned or dishonored remittance, regardless whether it is honored upon resubmission. (b) Collections Administration Fee. Upon the occurrence of any Event of Default (as defined below), we will charge a fee in the amount of 10% of the then-current remaining Amount Sold at the time the fee is assessed, less any assessed fees. (c) Stacking Fee: if Business sells any of Business's Future Receivables without Purchaser's prior written "stacking" consent (including, but not limited, or Business entering into a financing arrangement requiring Business to make daily or weekly payments or remittances), in addition to any Collections Administration Fee, Business will be charged 10% of the original Amount Sold to reflect the increased risk to Purchaser of being paid. 5. Performance Guaranty. (a) By signing this Agreement, each Guarantor assumes, jointly and severally, the full, complete and timely performance of all of Business's obligations under the Agreement if a breach of any of Business's representations, warranties or covenants occurs. If such a breach occurs, then Guarantor(s) shall perform under this Agreement including paying, or causing to be paid, any amounts due that Purchaser would otherwise be entitled to collect from Business. This guaranty is a guaranty of performance and not a guaranty of collection. Purchaser may proceed to enforce its rights against each Guarantor prior to, contemporaneously with or after, any enforcement against Business or without any enforcement Guarantor(s)' against Business. The obligations are unconditional and absolute and shall remain in full force and effect and without regard to and shall not be released, discharged or in any way affected by (a) any amendment to this Agreement; (b) any exercise or non-exercise of or delay on exercising any right, remedy, power or privilege under or in respect of this Agreement; (c) any bankruptcy, insolvency, arrangement, composition, assignment for the benefit of creditors, or similar proceeding commenced by or against Business or any of its officers, directors or principals; (d) defects in the formation or authority of Business; or (e) any other circumstance that might otherwise constitute a legal or equitable discharge of a guarantor or surety. If payment of any sum by Business is recovered as a preference or fraudulent conveyance under any bankruptcy or insolvency law, the liability of Guarantor(s) under this guaranty 4 of 13 Initials of Individual Signer(s) FILED: OSWEGO COUNTY CLERK 10/18/2023 03:47 PM INDEX NO. EFC-2023-1473 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 10/18/2023 DocuSign Envelope ID: 441BADE8-6A85-42BO-BA50-B09449458DDF shall continue and remain in full force and effect notwithstanding such recovery. By this provision, the Guarantor(s) is notified that a negative credit report reflecting on his/her credit record may be submitted to a credit reporting agency if the provisions of this Section are triggered by a breach of this Agreement by Business. Each Guarantor acknowledges receiving a copy of this Agreement and having read the terms of this Agreement, including, without limitation, the guaranty set forth in this paragraph, and the Guarantor's signature will serve as confirmation that the Guarantor understands all terms and conditions of this Agreement. Each Guarantor agrees that this guaranty is continuing and absolute and that Purchaser may modify or extend the terms of this Agreement, or compromise, settle or release any other obligor under this Agreement without notice or consent by Guarantor and without affecting Guarantor's liability. For the avoidance of doubt, Guarantor is obligated to pay the Amount Sold and any assessed fees only upon the occurrence of an Event of Default. (b) Provisions of Agreement Applicable to Each Guarantor: Sections 8 (Our Rights upon Default), 9 (Representations and Warranties), 10 (Covenants), 14 (Business Information; Reporting Information to Credit Bureaus), 15 (Telephone Recordings), 16 (Contacting You; Phone and Text Messages); 17 (Correspondence), 18 (Bankruptcy), 21 (Limitation of Liability), 22 (Waiver of Right to Trial by Jury) and 24 (Arbitration Provision) and any other relevant Section apply fully to each Guarantor individually, and "you," "your" each reference to or in such Sections of this Agreement shall be deemed to apply not just to Business but also to each Guarantor individually. 6. Right to Cancel. Business may cancel this transaction at any time within ten (10) days after Purchaser forwards any or all of the Purchase Price to Business. However, in order to cancel the transaction, Business must return to Purchaser the entire amount of the Purchase Price received by Business within that same ten non- (10) day period. Notwithstanding the foregoing, the Origination Fee (if any) is non-cancellable and refundable. 7. Events of Default. Subject to applicable law, we may declare you to be in default under this Agreement if any one or more of the following events occurs and is continuing (each an "Event of Default"): (a) You fail to make any required remittance of Future Receivables or payment when due except as otherwise permitted by this Agreement; (b) You fail to inform Purchaser prior to a scheduled daily or weekly remittance that the Remittance Account has insufficient funds due solely to a decline in Receivables as demonstrated by written documentation provided by Business, such that a scheduled remittance is returned or dishonored; (c) You fail to maintain the Bank Accounts (as defined in Exhibit A) or open a new bank account to deposit Receivables without our consent; (d) You fail to provide copies of all documents and requested information related to your financial or banking affairs within five (5) days after a request by us; (e) You use any portion of the Purchase Price for personal, family or household purposes or to fund a dividend or other distribution to Business owners; (f) You breach any representation, warranty, agreement, promise or covenant set forth in this Agreement, or you or any of your employees or agents provides us with any false or misleading information; (g) You make any act or omission that has the result of interfering with or circumventing, the remittance or payment to us of any amount owed under this Agreement, including, but not limited to: (i) conducting business under an alternative name; (ii) depositing Receivables into any bank accounts other than the Bank Accounts; (iii) encouraging customers to make payments by cash that you fail to deposit into the Bank Accounts; or (iv) manipulating the use and form of business entities for the purpose of avoiding your obligations under this Agreement; (b) You fail to permit us or our agent to conduct a site inspection of your business at any reasonable time during the term of this Agreement; (i) Without our prior express written consent, you enter into any credit, cash advance or other financing arrangement requiring daily or weekly payments or remittances; on on 5 of 13 Initials of Individual Signer(s). FILED: OSWEGO COUNTY CLERK 10/18/2023 03:47 PM INDEX NO. EFC-2023-1473 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 10/18/2023 DocuSign Envelope ID: 441BADE8-6A85-42BO-BA50-BO9449458DDF (j) Without our prior express written consent, you sell any of your assets outside of the ordinary course of business; (k) Without our prior express written consent, you sell any of your Future Receivables while you owe any amount under this Agreement; (1) Without our prior express written consent, you undertake or permit a change of control of your business; (m) You become subject to any material judgment or garnishment following the date of this Agreement; (n) You default on any other agreement that you have with us or any of our affiliates. 8. Our Rinhts Upon Default. Upon any Event of Default,: (a) all unpaid amounts of the Amount Sold and any assessed fees shall be immediately due and payable or, including all Receivables or Future Receivables until the entire balance, fees and deficiencies are paid in full; (b) commence an action against you to collect all amounts owed in connection Agreement; with(c) charge and recover this from you the Collections Administration Fee and/or the Stacking Fee (if applicable), all of our out-of-pocket costs and expenses, attorneys' including reasonable fees, arbitration costs, and/or court costs, incurred by us in connection with the defense, protection or enforcement of our rights under this Agreement (including, without limitation, in connection with any bankruptcy proceeding) and any other fees that may be due and owing (collectively, "Costs of Collection"); (d) withdraw funds from any of your Bank Accounts by ACH debit, up to the unpaid amount that you owe us under this Agreement (including the fees as set forth in Section 4 and any Costs of Collection); and (e) we may exercise any and all rights or remedies available to a secured creditor under Article 9 of the Uniform Commercial Code or analogous state laws. All rights available to us are cumulative and not exclusive of any other right or remedy available to us in law or equity. 9. Representations and Warrantles. You and any individual signing this Agreement as a Guarantor represent and warrant to us, as of the date hereof and each day the Amount Sold and any assessed fees remain unpaid, as follows: (a) The Future Receivables are not subject to any claims, charges, liens, restrictions, encumbrances or security interest of any nature whatsoever not disclosed to us prior to executing this Agreement; (b) As of the date the Purchase Price is paid to Business, Business is not the subject of a bankruptcy or reorganization proceeding that has not been discharged or dismissed, do not have a plan to make a bankruptcy filing and have not met with a bankruptcy attorney within the past six months; (c) All information that you have provided to us is true, correct and accurately reflects your financial condition and results of operations; (d) Business has all required permits, licenses, approval, consents and authorizations necessary to conduct