Preview
FILED: ONTARIO COUNTY CLERK 06/16/2021 12:26 PM INDEX NO. 129206-2021
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/16/2021
Ontario County Clerk Recording Page
Return To Matthew J. Hoose, County Clerk
ARIEL BOUSKILA Ontario County Clerk
80 Broad St 20 Ontario Street
Suite 3303 Canandaigua, New York 14424
New York, NY 10004 (585) 396-4200
Document Type: EXHIBIT(S) Receipt Number: 552154
Plaintiff Defendant
BYZFUNDER LLC MATTHEW ROBERT OGRAM
Fees
Control #: 202106170162
Total Fees Paid: $0.00
Index #: 129206-2021
State of New York
County of Ontario
EFiling through NYSCEF with a total page count of
10.
Ontario County Clerk
This sheet constitutes the Clerk’s endorsement required by section 319 of the Real Property Law of the State of New York
PK
Do Not Detach
202106170162 IndexNO.
INDEX # : 129206-2021
129206-2021
FILED: ONTARIO COUNTY CLERK 06/16/2021
04/09/2021 12:26
10:01 PM
AM
NYSCEF DOC. NO. 7
2 RECEIVED NYSCEF: 06/16/2021
04/09/2021
Ontario County Clerk Recording Page
Return To Matthew J. Hoose, County Clerk
ARIEL BOUSKILA Ontario County Clerk
80 Broad St 20 Ontario Street
Suite 3303 Canandaigua, New York 14424
New York, NY 10004 (585) 396-4200
Document Type: EXHIBIT(S) Receipt Number: 54 41
Plaintiff Defendant
BYZFUNDER LLC MATTHEW ROBERT OGRAM
Fees
Control #: 202104090068
Total Fees Paid: $0.00
Index #: 129206-2021
State of New York
County of Ontario
EFiling through NYSCEF with a total page count of
.
Ontario County Clerk
This sheet constitutes the Clerk’s endorsement required by section 319 of the Real Property Law of the State of New York
PK
Do Not Detach
202104090068
202106170162 Index
IndexNO.
INDEX ##:: 129206-2021
129206-2021
FILED: ONTARIO COUNTY CLERK 06/16/2021
04/09/2021 12:26
10:01 PM
AM
NYSCEF DOC. NO. 7
2 RECEIVED NYSCEF: 06/16/2021
04/09/2021
12 / 04 / 2020
This Payment Rights Purchase and Sale Agreement (“Agreement”) dated , is made by and
between ByzFunder LLC (“Purchaser”) and the business identified below (“Seller”).
SELLER’S INFORMATION:
LEGAL BUSINESS NAME: Matthew Robert Ogram
D/B/A: Custom Car Concepts
ENTITY TYPE: Sole Prop
STREET: 16601 N 25th Avenue Ste 109
PHYSICAL ADDRESS:
CITY: Phoenix ST: AZ ZIP: 85023
MAILING ADDRESS: STREET: 16601 N 25th Avenue Ste 109
(IF DIFFERENT) CITY: ST: ZIP: 85023
Phoenix AZ
CONTACT NAME: Matthew Robert Ogram POSITION: Owner
DATE OF BIRTH: 10/21/1970 SOCIAL SECURITY #:
BUSINESS PHONE #: CELL PHONE #:
EMAIL: customcarconcepts@yahoo.com WEBSITE:
FED TAX ID #: DATE OPENED: 10/1/2010
MONTHLY AVG SALES: $31,420.00 ANNUAL SALES: $377,040.00
ANY MISREPRESENTATION MADE BY OWNER AND/OR GUARANTOR IN CONNECTION WITH THIS AGREEMENT MAY CONSTITUTE A SEPARATE
CAUSE OF ACTION FOR FRAUD, INTENTIONAL MISREPRESENTATION AND/OR UNJUST ENRICHMENT IN WHICH EVENT BYZFUNDER WILL BE
ENTITLED TO THE RECOVERY OF NOT ONLY ITS LOSSES BUT ALSO, ALL OF ITS COSTS, EXPENSES AND REASONABLE LEGAL FEES.
OFFER TO SELL AND PURCHASE PAYMENT RIGHTS:
Seller hereby sells, assigns and transfers to Purchaser, without recourse, upon payment of the Purchase Price, the Purchased Amount of Future
Receipts by delivering to Purchaser the Specified Percentage of the proceeds of each future sale by Seller. “Future Receipts” includes all payments
made by cash, check, ACH or other electronic transfer, credit card, debit card, bank card, charge card (each such card shall be referred to herein as
a “Credit Card”) or other form of monetary payment in the ordinary course of Seller ’s business. BASED UPON MERCHANT’S CALCULATIONS AND
EXPERIENCE IN OPERATING ITS BUSINESS, MERCHANT IS CONFIDENT THAT THE PURCHASE PRICE PAID BY BYZFUNDER IN EXCHANGE FOR THE
PURCHASED AMOUNT OF FUTURE RECEIPTS WILL BE USED IN A MANNER THAT WILL BENEFIT MERCHANT’S CURRENT AND FUTURE BUSINESS
OPERATIONS.
Seller shall (1) deposit all Future Receipts into only one bank account, which must be acceptable to and pre-approved by Purchaser (the “Account”)
and (2) instruct Seller ’s Credit Card processor, which processor must be acceptable to and preapproved by Purchaser (the “Processor”) who shall
serve as Seller ’s sole Credit Card processor, to deposit all Credit Card receipts of Seller into the Account. Purchaser will debit the Daily Payment
from the Account each Weekday (Monday – Friday). Seller authorizes Purchaser to initiate electronic checks or ACH debits from the Account equal to
the Daily Payment each business day and will provide Purchaser with all required access codes. Seller understands that it is responsible for ensuring
that the Daily Payment is available in the Account and will be responsible for any fees incurred by Purchaser resulting from a rejected electronic
check or ACH debit attempt. Purchaser is not responsible for any overdrafts or rejected transactions that may result from Purchaser’s debiting any
amount authorized under the terms of this Agreement.
PURCHASE PRICE: PURCHASE AMOUNT: $17,040.00
$12,000.00
PAYMENT AMOUNT: SPECIFIED PERCENTAGE: %
$131.00 Daily 8.34
Merchant X Guarantor 1 X Guarantor 2 X BYZFUNDER 1
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202104090068
202106170162 IndexNO.
INDEX #: 129206-2021
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FILED: ONTARIO COUNTY CLERK 06/16/2021
04/09/2021 12:26
10:01 PM
AM
NYSCEF DOC. NO. 7
2 RECEIVED NYSCEF: 06/16/2021
04/09/2021
PURCHASER ACKNOWLEDGEMENT:
Seller is selling a portion of future revenue stream to ByzFunder at a discount. This is not a loan; Seller is not borrowing money from ByzFunder.
There is no interest rate or payment schedule and no time period during which the Purchased Amount must be collected by Purchaser. Seller going
bankrupt or going out of business, in and of itself, does not constitute a breach of this Agreement. Purchaser is entering into this Agreement
knowing the risks that Seller ’s business may slow down or fail, and Purchaser assumes these risks based on Seller’s representations warranties and
covenants in this Agreement, which are designed to give Purchaser a reasonable and fair opportunity to receive the benefit of its bargain.
SELLER’S RIGHT TO REQUEST A RECONCILIATION:
The Daily Payment amount is intended to represent the Specified Percentage of Seller ’s Future Receipts. Seller may request that Purchaser
reconcile Seller ’s actual receipts by either crediting or debiting the difference back to or from the Account so that the amount Purchaser debited in
the most recent calendar month equaled the Specified Percentage of Future Receipts that Seller collected in that calendar month. Any
reconciliation request must be: (1) in writing; (2) include a copy of Seller ’s bank statement for the calendar month at issue; and (3) be sent to
ByzFunder at 333 W 39th St, Suite 101, New York, NY 10018 within 30 days after the last day of the calendar month at issue. It is solely the Seller's
responsibility to send a complete bank statement. Failure to send a written reconciliation request within 30 days after the last day of the calendar
month at issue forfeits that month’s reconciliation. Notwithstanding anything to the contrary in this Agreement or any other agreement between
Purchaser and Seller, upon the occurrence of an Event of Default, the Specified Percentage shall equal 100%. A list of all fees applicable under this
Agreement is contained in Appendix A.
THE "PAYMENT RIGHTS PURCHASE AND SALE AGREEMENT TERMS AND CONDITIONS” AND THE "PERFORMANCE GUARANTY" ARE ALL HEREBY
INCORPORATED IN AND MADE A PART OF THIS PAYMENT RIGHTS PURCHASE AND SALE AGREEMENT.
FOR THE SELLER #1 (PRINT NAME & TITLE) SIGNATURE (SIGN BELOW) MUST SIGN AS SELLER
Matthew Robert Ogram
FOR THE SELLER #2 (PRINT NAME & TITLE) SIGNATURE (SIGN BELOW) MUST SIGN AS SELLER
FOR THE OWNER/GUARANTOR #1 (PRINT NAME) SIGNATURE (SIGN BELOW) MUST SIGN AS OWNER ALSO
Matthew Robert Ogram
FOR THE OWNER/GUARANTOR #2 (PRINT NAME) SIGNATURE (SIGN BELOW) MUST SIGN AS OWNER ALSO
Purchaser’s payment of the Purchase Price shall be deemed Purchaser’s acceptance and performance of this Agreement, notwithstanding Purchaser
not executing this agreement. Each of above-signed Seller(s) and Owner(s) represent that he or she is authorized to sign this Agreement and that the
information provided herein and in all documents, forms and recorded interviews provided to or with Purchaser is true, accurate and complete in all
respects. An investigative or consumer report may be made in connection with this Agreement. Seller and each of the above-signed Owners
authorize Purchaser, its agents and representatives and any credit reporting agency engaged by Purchaser, to (i) investigate any references given or
any other statements or data obtained from or about Seller or any of its Owners for the purpose of this Agreement, and (ii) obtain credit reports,
including consumer credit reports at any time now or for so long as Seller and/or Owners(s) continue to have any obligation owed to Purchaser as a
consequence of this Agreement or for Purchaser's ability to determine Seller's eligibility to enter into any future agreement with Purchaser.
LIMITED PERSONAL GUARANTEE OF MERCHANT: IN CONSIDERATION OF BYZFUNDER ENTERING INTO THIS AGREEMENT, AND TO INDUCE
BYZFUNDER TO ENTER INTO THIS AGREEMENT, THE UNDERSIGNED PRINCIPAL(S) OF MERCHANT (“GUARANTOR(S)”) HEREBY PERSONALLY
GUARANTEE TO BYZFUNDER THAT: (I) ALL INFORMATION PROVIDED BY MERCHANT TO BYZFUNDER IN CONNECTION WITH THE TRANSACTION
CONTEMPLATED BY THIS AGREEMENT IS TRUE, CORRECT AND COMPLETE; (II) THE PRINCIPAL(S) SHALL NOT UNDERTAKE ANY ACTION TO DIVERT
BUSINESS FROM THE MERCHANT TO ANY OTHER ENTITY OR OTHERWISE TAKE ACTION LIKELY TO DEPRIVE BYZFUNDER OF THE VALUE OF THE
ASSETS PURCHASED; AND (III) SHALL NOT DIRECT, OR THROUGH OMISSION PERMIT, MERCHANT TO BREACH THIS AGREEMENT, OR DO ANY OF THE
ACTS PROHIBITED BY THIS AGREEMENT.
This guarantee shall be the continuing, irrevocable, unconditional and joint and several obligations of the Guarantor(s), and the Guarantor(s)
hereby waive demand of payment, notice of presentment, and any and all requirements of notice, defenses, offsets and counterclaims and any
other act or omission of ByzFunder which changes the scope of the Guarantors’ risk, and Guarantor(s) further agree that ByzFunder may proceed
directly against the Guarantors without first proceeding against Merchant. Each Guarantor further guarantees the payment of and agrees to pay all
Indemnified Amounts (as defined in Section 5.6 of this Agreement). By signing below Guarantors agree to this Guarantee and each representation,
warranty and covenant set forth in Sections 2 and 3.1 of this Agreement, which representations, warranties and covenants shall survive the
termination of this Agreement.
Merchant X Guarantor 1 X Guarantor 2 X BYZFUNDER 2
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202106170162 IndexNO.
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129206-2021
FILED: ONTARIO COUNTY CLERK 06/16/2021
04/09/2021 12:26
10:01 PM
AM
NYSCEF DOC. NO. 7
2 RECEIVED NYSCEF: 06/16/2021
04/09/2021
PAYMENT RIGHTS PURCHASE AND SALE AGREEMENT TERMS AND CONDITIONS
I. TERMS OF ENROLLMENT IN PROGRAM discretion prior to or at any time after Purchaser or its designated representatives
execution of this Agreement. A photocopy of and agents shall have the right during Seller’s
1.1 (a) ACH Authorization: this authorization will be deemed acceptable normal business hours and at any other
Seller shall execute an agreement (the “ACH as an authorization for release of financial and reasonable time to examine the interior and
Authorization”) acceptable to Purchaser to credit information. Purchaser is authorized to exterior of any of Seller’s places of business.
authorize the use of the Automated update such information and financial and Purchaser may examine, among other things,
Clearinghouse System (ACH) to retrieve the credit profiles from time to time as it deems whether Seller (a) has a place of business that
Daily Payment from the Account. Seller shall appropriate. is separate from any personal residence, (b) is
provide Purchaser and/or its authorized open for business, and (c) has sufficient
agent(s) with all of the information, 1.3 Transactional History. inventory to conduct Seller’s business. When
authorizations and passwords necessary for Seller authorizes all of its banks and brokers performing an examination, Purchaser may
verifying Seller’s receivables, receipts, and Credit Card processors to provide photograph the interior and exterior of any of
deposits and withdrawals into and from the Purchaser with Seller’s banking, brokerage Seller’s places of business, including any
Account. Seller hereby authorizes Purchaser and/or processing history to determine signage, and may photograph any Owner.
and/or its agent(s) to deduct from the qualification or continuation in this program. Purchaser or any of its agents shall have the
Account the Purchased Amount and any other right to inspect, audit, check, and make
amounts owed by Seller to Purchaser as 1.4 Indemnification. extracts from any copies of the books,
specified herein and to pay such amounts to Seller and Guarantor(s) jointly and severally records, journals, orders, receipts,
Purchaser. If an ACH transaction is rejected by indemnify and hold harmless Processor, its correspondence that relate to Seller’s
Seller’s financial institution for any reason officers, directors and shareholders against all accounts or other transactions between the
other than a stop payment order placed by losses, damages, claims, liabilities and parties thereto and the general financial
Seller with its financial institution, including expenses (including reasonable attorney’s condition of Seller and Purchaser may remove
without limitation insufficient funds, Seller fees) incurred by Processor resulting from (a) any of such records temporarily for the
agrees that Purchaser may resubmit any ACH claims asserted by Purchaser for monies owed purpose of having copies made thereof.
transaction that is dishonored as permitted to Purchaser from Seller and (b) actions taken Purchaser shall have the right to hire a
under the NACHA rules. In the event by Processor in reliance upon any fraudulent, Certified Public Accountant, licensed in the
Purchaser makes an error in processing any misleading or deceptive information or state where the business is located to perform
payment or credit, Seller authorizes Purchaser instructions provided by Purchaser. analysis of the accounting records for the
to initiate ACH entries to or from the Account purpose of determining if the Specified
to correct the error. These authorizations 1.5 No Liability. Percentage of receipts has been made
apply not only to the approved Account but In no event will Purchaser be liable for any available for remittance to Purchaser. Seller
also to any subsequent or alternate account claims asserted by Seller or Guarantor(s) hereby agrees to fully cooperate with such
used by the Seller for these deposits, whether under any legal theory for lost profits, lost analysis upon the request of Purchaser.
preapproved by Purchaser or not. This revenues, lost business opportunities,
additional authorization is not a waiver of exemplary, punitive, special, incidental, 1.8 Power of Attorney.
Purchaser’s right to declare Seller in default if indirect or consequential damages, each of Seller irrevocably appoints Purchaser as its
Seller uses an account that Purchaser did not which is waived by both Seller and agent and attorney-in-fact with full authority
first preapprove in writing. This authorization Guarantor(s). In the event these claims are to take any action or execute any instrument
shall be irrevocable without the prior written nonetheless raised, Seller and Guarantor(s) or document to settle all obligations due to
consent of Purchaser. will be jointly liable for all of Purchaser ’s legal Seller from any bank or Processor, or in the
(b) Bank Holidays and Other Exceptions. fees and expenses resulting therefrom. Seller case of an occurrence of an Event of Default
Purchaser will debit the Daily Payment each and each Owner and each Guarantor hereby under Section 3 hereof, to Purchaser under
Weekday on which the Bank is open and able and each waives to the maximum extent this Agreement, including without limitation
to process ACH transactions. On the Weekday permitted by law any claim for damages (i) to obtain and adjust insurance; (ii) to
immediately following any Weekday or against Purchaser or any of its affiliates collect monies due or to become due under or
Weekdays on which the Bank was not open to relating to any (i)investigation undertaken by in respect of any of the Purchased Amount;
process ACH transactions, Purchaser will debit or on behalf of Purchaser as permitted by this (iii) to receive, endorse and collect any checks,
the designated account for an amount equal Agreement or (ii) disclosure of information as notes, drafts, instruments, documents or
to the sum of: (i) the Daily Payment amount permitted by this Agreement. chattel paper in connection with clause (i) or
due on that Weekday, plus (ii) the Daily clause (ii) above; (iii) to sign Seller ’s name on
Payment amount due on the preceding 1.6 Reliance on Terms. any invoice, bill of lading, or assignment
Weekday when the Bank was not open or Sections 1.1, 1.3, 1.4, 1.6 and 1.8 of this directing customers or account debtors to
could not process ACH transactions. Agreement are agreed to for the benefit of make payment directly to Purchaser; (iv) to
Seller, Purchaser and Processor, and file any claims or take any action or institute
1.2 Financial Condition. notwithstanding the fact that Processor is not any proceeding that Purchaser may deem
Seller and Guarantor(s) authorize Purchaser a party of this Agreement, Processor may rely necessary for the collection of any of the
and its agents to investigate their financial upon their terms and raise them as a defense unpaid Purchased Amount, or otherwise to
responsibility and history, and will provide to in any action. enforce its rights with respect to payment of
Purchaser any authorizations, bank or the Purchased Amount. In connection
financial statements, tax returns, etc., as 1.7 Accounting Records, and Place of therewith, all costs, expenses and fees,
Purchaser deems necessary in its sole Business. including legal fees, shall be payable by and
Merchant X Guarantor 1 X Guarantor 2 X BYZFUNDER 3
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202104090068
202106170162 IndexNO.
INDEX #: 129206-2021
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FILED: ONTARIO COUNTY CLERK 06/16/2021
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2 RECEIVED NYSCEF: 06/16/2021
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from Seller and Purchaser is authorized to use “accounts”, “general intangibles”, or discount, not borrowing money from
Seller ’s funds to pay for same; and (v) “payment intangibles” as those terms are Purchaser. If Future Receipts are remitted
Purchaser shall have the right, without defined in the Uniform Commercial Code as in more slowly than Purchaser may have
waiving any of its rights and remedies and effect in the state in which the Seller is anticipated or projected because Seller’s
without notice to Seller or any located (the “UCC”) and such sale shall business has slowed down, or if the full
Owner/Guarantor, to notify any Credit Card constitute and shall be construed and treated Purchased Amount is never remitted because
processor of the sale of Future Receipts and for all purposes as a true and complete sale, Seller’s business went bankrupt or otherwise
re-direct the remittance of daily settlements conveying good title to the Future Receipts ceased operations in the ordinary course of
to an account of Purchaser ’s choosing in free and clear of any liens and encumbrances, business, and Seller has not breached this
order to settle all obligations due to Purchaser from Seller to Purchaser. To the extent the Agreement, Seller would not owe anything to
under this Agreement. Future Receipts are “accounts” or “payment Purchaser and would not be in breach of or
intangibles” then (i) the sale of the Future default under this Agreement. By this
1.9 Confidentiality. Receipts creates a security interest as defined Agreement, Seller transfers to Purchaser full
Seller understands and agrees that the terms in the UC C, (ii) this Agreement constitutes a and complete ownership of the Purchased
and conditions of the products and services “security agreement” under the UC C, and (iii) Amount of Future Receipts and Seller retains
offered by Purchaser, including this Purchaser has all the rights of a secured party no legal or equitable interest therein.
Agreement and any other Purchaser under the UC C with respect to such Future 2.3 Financial Condition and Financial
documentations (collectively, “Confidential Receipts. Seller further agrees that, with or Information.
Information”) are proprietary and confidential without an Event of Default, Purchaser may Seller’s and Guarantors’ bank and financial
information of Purchaser. Accordingly, unless notify account debtors, or other persons statements, copies of which have been
disclosure is required by law or court order, obligated on the Future Receipts, of Seller ’s furnished to Purchaser, and future statements
Seller shall not disclose Confidential sale of the Future Receipts and may instruct that will be furnished hereafter at the request
Information of Purchaser to any person other them to make payment or otherwise render of Purchaser, fairly represent the financial
than an attorney, accountant, financial performance to or for the benefit of condition of Seller and Guarantor(s) at such
advisor or employee of Seller who needs to Purchaser. dates, and since those dates there has been
know such information for the purpose of no material adverse changes, financial or
advising Seller (“Advisor”), provided such II. SELLER’S REPRESENTATIONS, WARRANTIES otherwise, in the condition, operall on or
Advisor uses Confidential Information solely AND COVENANTS ownership of Seller. Seller and Guarantor(s)
for the purpose of advising Seller and first have a continuing, affirmative obligation to
agrees in writing to be bound by the terms of 2.1 Good Faith, Best Efforts and Due advise Purchaser of any material adverse
this section. A breach hereof entitles Diligence. change in their financial condition, operation
Purchaser to not only damages and legal fees Seller will conduct its business in good faith or ownership. Purchaser may request
but also to both a temporary restraining order and will use its best efforts to maintain and statements at any time during the
and a preliminary injunction without bond or grow its business, to ensure that Purchaser performance of this Agreement and the Seller
security. obtains the Purchased Amount. Furthermore, and Guarantor(s) shall provide them to
Seller agrees, warrants and represents hereby Purchaser within 5 business days. Seller’s or
1.10 Publicity. that Seller will constantly perform all Guarantors’ failure to do so is a material
Seller and each of Seller’s Owners and all appropriate Due Diligence and credit checks breach of this Agreement.
Guarantors hereby authorize Purchaser to use of all of the customers’ finances, cash flow,
its, his or her name in listings of clients and in solvency, good faith, payment histories and 2.4 Governmental Approvals.
advertising and marketing materials. business reputations (the “Due Diligence Seller is in compliance and shall comply with
Requirements”) as may be commercially all laws and has valid permits, authorizations
1.11 D/B/As. reasonable to ensure any and all products and licenses to own, operate and lease its
Seller hereby acknowledges and agrees that and/or services provided, sold or delivered by properties and to conduct the business in
Purchaser may be using “doing business as” or Seller to said customers will be paid for by which it is presently engaged and/or will
“d/b/a” names in connection with various customers in full and on time, and will not engage in hereafter.
matters relating to the transaction between result in the creation of an unpaid account.
Purchaser and Seller, including the filing of UC This is not a guaranty of payment by Seller ’s 2.5 Authorization.
C-1 financing statements and any other customers, but is an obligation of Seller and the person(s) signing this
notices or filings. commercially reasonable Due Diligence Agreement on behalf of Seller, have full
investigation and credit check of customers power and authority to incur and perform the
1.12 Application of Amounts Received. before extending credit to them and obligations under this Agreement, all of which
Subject to applicable law, Purchaser reserves continuing no less frequently than monthly so have been duly authorized.
the right to apply any amounts received from long as sums are still due. 2.6 Insurance.
Seller to any fees or other charges due to Seller will maintain business-interruption
Purchaser from Seller prior to applying such 2.2 Nonrecourse Sale of Payment Rights. insurance naming Purchaser as loss payee and
amounts to reduce the amount of any Seller represents and warrants that it is selling additional insured in amounts and against
outstanding Purchased Amount. the Purchased Amount of Future Receipts to risks as are satisfactory to Purchaser and shall
Purchaser in Seller’s normal course of provide Purchaser proof of such insurance
1.13 Acknowledgment of Security Interest business and the Purchase P rice paid by upon request.
and Security Agreement. Purchaser is good and valuable consideration
The Future Receipts sold by Seller to for the sale. Seller is selling a portion of a 2.7 Processor and Bank Account.
Purchaser pursuant to this Agreement are future revenue stream to Purchaser at a
Merchant X Guarantor 1 X Guarantor 2 X BYZFUNDER 4
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202104090068
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INDEX #: 129206-2021
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FILED: ONTARIO COUNTY CLERK 06/16/2021
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2 RECEIVED NYSCEF: 06/16/2021
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Seller will not change its Credit Card does not anticipate filing any such bankruptcy 3.1 Events of Default. The occurrence of any
processor, add terminals, change its financial petition and it does not anticipate that an of the following events shall constitute an
institution or bank account(s) or take any involuntary petition will be filed against it. “Event of Default”: (a) Seller intentionally
similar aclll on that could have an adverse interferes with Purchaser’s right to collect the
effect upon Seller’s obligations under this 2.12 Sharing of Information. Daily Payment in violation of this Agreement;
Agreement, without Purchaser ’s prior written Seller hereby authorizes Purchaser to share (b) Seller violates any term or covenant in this
consent. Any such changes shall be a material information regarding Seller ’s performance Agreement; (c) Any representation or
breach of this Agreement. under this Agreement with affiliates and warranty by Seller in this Agreement proves to
unaffiliated third parties. have been incorrect, false or misleading in any
2.8 Change of Name, Type, Location or Sale material respect when made; (d) the sending
of Business. 2.13 Unencumbered Receipts. of notice of termination by Seller; (e) Seller
Seller will not conduct Seller’s businesses Seller has good, complete, unencumbered and transports, moves, interrupts, suspends,
under any name other than as disclosed to marketable title to all Future Receipts, free dissolves or terminates its business; (f) Seller
Processor and Purchaser, nor will Seller and clear of any and all liabilities, liens, claims, transfers or sells all or substantially all of its
change any of its places of business or the type changes, restrictions, conditions, options, assets; (g) Seller makes or sends notice of any
of business without prior written consent by rights, mortgages, security interests, equities, intended bulk sale or transfer by Seller; (h)
Purchaser. Seller will not sell, dispose, transfer pledges and encumbrances of any kind or Seller uses multiple depository accounts
or otherwise convey its business or assets nature whatsoever or any other rights or without the prior written consent of
without (i) the express prior written consent of interests that may be inconsistent with the Purchaser (i) Seller changes its depositing
Purchaser, and (ii) the written agreement of transactions contemplated with, or adverse to account or the Processor without the prior
any purchaser or transferee assuming all of the interests of Purchaser. written consent of Purchaser; (j) Seller
Seller's obligations under this Agreement defaults under any of the terms, covenants
pursuant to documentation satisfactory to 2.14 Business Purpose. and conditions of any other agreement with
Purchaser. Seller is a valid business in good standing Purchaser; or (k) Seller fails to provide timely
under the laws of the jurisdictions in which it notice to Purchaser such that in any given
2.9 Daily Batch Out. is organized and/or operates. Seller agrees to calendar month there is one or more ACH
Seller will ensure that all Credit Card use the Purchase Price solely for business transaction attempted by Purchaser that is
transactions are communicated daily to the purposes, and not for personal, family or rejected by Seller ’s bank for insufficient
Processor and not later than the day on which household purposes. Seller understands that funds.
such transactions occurred. Seller's agreement not to use the Purchase
Price for personal, family or household 3.2 Remedies.
2.10 Estoppel purposes means certain important rights If any Event of Default occurs, Purchaser may
Certificate. Seller will at all times, and from conferred upon consumers pursuant to proceed to protect and enforce its rights
time to time, upon at least 1 day’s prior notice federal or state law will not apply to this including, but not limited to, the following:
from Purchaser to Seller, execute, Agreement. Seller agrees that a breach by A. The Specified Percentage shall equal 100%.
acknowledge and deliver to Purchaser and/or Seller of the provisions of this section will not The full uncollected Purchased Amount plus all
to any other person, firm or corporation affect Purchaser’s rights to the Purchased fees (including legal fees) due under this
specified by Purchaser, a statement certifying Amount or to use any remedy legally available Agreement will become due and payable in full
that this Agreement is unmodified and in full to Purchaser to obtain delivery of the immediately.
force and effect (or, if there have been Purchased Amount. B. Purchaser may enforce the provisions of
modifications, that the same is in full force the Performance Guaranty against the
and effect as modified and stating the 2.15 Defaults under Other Contracts. Guarantor(s).
modifications) and stating the dates which the Seller ’s execution of, and/or performance C. Seller hereby authorizes Purchaser to
Purchased Amount or any portion thereof has under this Agreement, will not cause or create execute in the name of the Seller a Confession
been delivered to Purchaser or the amount of an Event of Default by Seller under any of Judgment in favor
the Purchased Amount that has not been contract with another person or entity. of Purchaser in the full uncollected Purchased
delivered to Purchaser. Amount and enter that Confession of
2.16 Account. Judgment as a Judgment with the Clerk of any
2.11 No Bankruptcy. Seller represents and warrants that (i) the Court and execute thereon.
As of the date of this Agreement, Seller is not Account is Seller ’s bank account; (ii) the D. Purchaser may proceed to protect and
insolvent and does not contemplate and has person executing this Authorization on behalf enforce its rights and remedies by lawsuit. I n
not filed any petition for bankruptcy of Seller is an authorized signer on the any such lawsuit, under which Purchaser shall
protection under Title 11 of the United States Account and has the power and authority to recover Judgment against Seller, Seller shall be
Code and there has been no involuntary authorize Purchaser to initiate ACH liable for all of Purchaser ’s costs of the
petition brought or pending against Seller. transactions to and from the Account; (iii) the lawsuit, including but not limited to all
Seller represents that it has not consulted Account is a legitimate, open, and active bank reasonable attorneys’ fees and court costs.
with a bankruptcy attorney within 6 months account used solely for business purposes and E. This Agreement shall be deemed Seller ’s
prior to the date of this Agreement, and that not for personal, family or household Assignment of Seller ’s Lease of Seller ’s
it has no present intention of closing its purposes. business premises to Purchaser. Upon an
business or ceasing to operate its business, Event of Default, Purchaser may exercise its
either permanently or temporarily, during the III. EVENTS OF DEFAULT AND REMEDIES rights under this Assignment of Lease without
6-month period after the date of this prior notice to Seller.
Agreement. Seller further warrants that it
Merchant X Guarantor 1 X Guarantor 2 X BYZFUNDER 5
Doc ID: 38936d40a62cafba38509e2e8139b1cfebf7439f
202104090068
202106170162
Preview
FILED: ONTARIO COUNTY CLERK 06/16/2021 12:26 PM INDEX NO. 129206-2021 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/16/2021 Ontario County Clerk Recording Page Return To Matthew J. Hoose, County Clerk ARIEL BOUSKILA Ontario County Clerk 80 Broad St 20 Ontario Street Suite 3303 Canandaigua, New York 14424 New York, NY 10004 (585) 396-4200 Document Type: EXHIBIT(S) Receipt Number: 552154 Plaintiff Defendant BYZFUNDER LLC MATTHEW ROBERT OGRAM Fees Control #: 202106170162 Total Fees Paid: $0.00 Index #: 129206-2021 State of New York County of Ontario EFiling through NYSCEF with a total page count of 10. Ontario County Clerk This sheet constitutes the Clerk’s endorsement required by section 319 of the Real Property Law of the State of New York PK Do Not Detach 202106170162 IndexNO. INDEX # : 129206-2021 129206-2021 FILED: ONTARIO COUNTY CLERK 06/16/2021 04/09/2021 12:26 10:01 PM AM NYSCEF DOC. NO. 7 2 RECEIVED NYSCEF: 06/16/2021 04/09/2021 Ontario County Clerk Recording Page Return To Matthew J. Hoose, County Clerk ARIEL BOUSKILA Ontario County Clerk 80 Broad St 20 Ontario Street Suite 3303 Canandaigua, New York 14424 New York, NY 10004 (585) 396-4200 Document Type: EXHIBIT(S) Receipt Number: 54 41 Plaintiff Defendant BYZFUNDER LLC MATTHEW ROBERT OGRAM Fees Control #: 202104090068 Total Fees Paid: $0.00 Index #: 129206-2021 State of New York County of Ontario EFiling through NYSCEF with a total page count of . Ontario County Clerk This sheet constitutes the Clerk’s endorsement required by section 319 of the Real Property Law of the State of New York PK Do Not Detach 202104090068 202106170162 Index IndexNO. INDEX ##:: 129206-2021 129206-2021 FILED: ONTARIO COUNTY CLERK 06/16/2021 04/09/2021 12:26 10:01 PM AM NYSCEF DOC. NO. 7 2 RECEIVED NYSCEF: 06/16/2021 04/09/2021 12 / 04 / 2020 This Payment Rights Purchase and Sale Agreement (“Agreement”) dated , is made by and between ByzFunder LLC (“Purchaser”) and the business identified below (“Seller”). SELLER’S INFORMATION: LEGAL BUSINESS NAME: Matthew Robert Ogram D/B/A: Custom Car Concepts ENTITY TYPE: Sole Prop STREET: 16601 N 25th Avenue Ste 109 PHYSICAL ADDRESS: CITY: Phoenix ST: AZ ZIP: 85023 MAILING ADDRESS: STREET: 16601 N 25th Avenue Ste 109 (IF DIFFERENT) CITY: ST: ZIP: 85023 Phoenix AZ CONTACT NAME: Matthew Robert Ogram POSITION: Owner DATE OF BIRTH: 10/21/1970 SOCIAL SECURITY #: BUSINESS PHONE #: CELL PHONE #: EMAIL: customcarconcepts@yahoo.com WEBSITE: FED TAX ID #: DATE OPENED: 10/1/2010 MONTHLY AVG SALES: $31,420.00 ANNUAL SALES: $377,040.00 ANY MISREPRESENTATION MADE BY OWNER AND/OR GUARANTOR IN CONNECTION WITH THIS AGREEMENT MAY CONSTITUTE A SEPARATE CAUSE OF ACTION FOR FRAUD, INTENTIONAL MISREPRESENTATION AND/OR UNJUST ENRICHMENT IN WHICH EVENT BYZFUNDER WILL BE ENTITLED TO THE RECOVERY OF NOT ONLY ITS LOSSES BUT ALSO, ALL OF ITS COSTS, EXPENSES AND REASONABLE LEGAL FEES. OFFER TO SELL AND PURCHASE PAYMENT RIGHTS: Seller hereby sells, assigns and transfers to Purchaser, without recourse, upon payment of the Purchase Price, the Purchased Amount of Future Receipts by delivering to Purchaser the Specified Percentage of the proceeds of each future sale by Seller. “Future Receipts” includes all payments made by cash, check, ACH or other electronic transfer, credit card, debit card, bank card, charge card (each such card shall be referred to herein as a “Credit Card”) or other form of monetary payment in the ordinary course of Seller ’s business. BASED UPON MERCHANT’S CALCULATIONS AND EXPERIENCE IN OPERATING ITS BUSINESS, MERCHANT IS CONFIDENT THAT THE PURCHASE PRICE PAID BY BYZFUNDER IN EXCHANGE FOR THE PURCHASED AMOUNT OF FUTURE RECEIPTS WILL BE USED IN A MANNER THAT WILL BENEFIT MERCHANT’S CURRENT AND FUTURE BUSINESS OPERATIONS. Seller shall (1) deposit all Future Receipts into only one bank account, which must be acceptable to and pre-approved by Purchaser (the “Account”) and (2) instruct Seller ’s Credit Card processor, which processor must be acceptable to and preapproved by Purchaser (the “Processor”) who shall serve as Seller ’s sole Credit Card processor, to deposit all Credit Card receipts of Seller into the Account. Purchaser will debit the Daily Payment from the Account each Weekday (Monday – Friday). Seller authorizes Purchaser to initiate electronic checks or ACH debits from the Account equal to the Daily Payment each business day and will provide Purchaser with all required access codes. Seller understands that it is responsible for ensuring that the Daily Payment is available in the Account and will be responsible for any fees incurred by Purchaser resulting from a rejected electronic check or ACH debit attempt. Purchaser is not responsible for any overdrafts or rejected transactions that may result from Purchaser’s debiting any amount authorized under the terms of this Agreement. PURCHASE PRICE: PURCHASE AMOUNT: $17,040.00 $12,000.00 PAYMENT AMOUNT: SPECIFIED PERCENTAGE: % $131.00 Daily 8.34 Merchant X Guarantor 1 X Guarantor 2 X BYZFUNDER 1 Doc ID: 38936d40a62cafba38509e2e8139b1cfebf7439f 202104090068 202106170162 IndexNO. INDEX #: 129206-2021 129206-2021 FILED: ONTARIO COUNTY CLERK 06/16/2021 04/09/2021 12:26 10:01 PM AM NYSCEF DOC. NO. 7 2 RECEIVED NYSCEF: 06/16/2021 04/09/2021 PURCHASER ACKNOWLEDGEMENT: Seller is selling a portion of future revenue stream to ByzFunder at a discount. This is not a loan; Seller is not borrowing money from ByzFunder. There is no interest rate or payment schedule and no time period during which the Purchased Amount must be collected by Purchaser. Seller going bankrupt or going out of business, in and of itself, does not constitute a breach of this Agreement. Purchaser is entering into this Agreement knowing the risks that Seller ’s business may slow down or fail, and Purchaser assumes these risks based on Seller’s representations warranties and covenants in this Agreement, which are designed to give Purchaser a reasonable and fair opportunity to receive the benefit of its bargain. SELLER’S RIGHT TO REQUEST A RECONCILIATION: The Daily Payment amount is intended to represent the Specified Percentage of Seller ’s Future Receipts. Seller may request that Purchaser reconcile Seller ’s actual receipts by either crediting or debiting the difference back to or from the Account so that the amount Purchaser debited in the most recent calendar month equaled the Specified Percentage of Future Receipts that Seller collected in that calendar month. Any reconciliation request must be: (1) in writing; (2) include a copy of Seller ’s bank statement for the calendar month at issue; and (3) be sent to ByzFunder at 333 W 39th St, Suite 101, New York, NY 10018 within 30 days after the last day of the calendar month at issue. It is solely the Seller's responsibility to send a complete bank statement. Failure to send a written reconciliation request within 30 days after the last day of the calendar month at issue forfeits that month’s reconciliation. Notwithstanding anything to the contrary in this Agreement or any other agreement between Purchaser and Seller, upon the occurrence of an Event of Default, the Specified Percentage shall equal 100%. A list of all fees applicable under this Agreement is contained in Appendix A. THE "PAYMENT RIGHTS PURCHASE AND SALE AGREEMENT TERMS AND CONDITIONS” AND THE "PERFORMANCE GUARANTY" ARE ALL HEREBY INCORPORATED IN AND MADE A PART OF THIS PAYMENT RIGHTS PURCHASE AND SALE AGREEMENT. FOR THE SELLER #1 (PRINT NAME & TITLE) SIGNATURE (SIGN BELOW) MUST SIGN AS SELLER Matthew Robert Ogram FOR THE SELLER #2 (PRINT NAME & TITLE) SIGNATURE (SIGN BELOW) MUST SIGN AS SELLER FOR THE OWNER/GUARANTOR #1 (PRINT NAME) SIGNATURE (SIGN BELOW) MUST SIGN AS OWNER ALSO Matthew Robert Ogram FOR THE OWNER/GUARANTOR #2 (PRINT NAME) SIGNATURE (SIGN BELOW) MUST SIGN AS OWNER ALSO Purchaser’s payment of the Purchase Price shall be deemed Purchaser’s acceptance and performance of this Agreement, notwithstanding Purchaser not executing this agreement. Each of above-signed Seller(s) and Owner(s) represent that he or she is authorized to sign this Agreement and that the information provided herein and in all documents, forms and recorded interviews provided to or with Purchaser is true, accurate and complete in all respects. An investigative or consumer report may be made in connection with this Agreement. Seller and each of the above-signed Owners authorize Purchaser, its agents and representatives and any credit reporting agency engaged by Purchaser, to (i) investigate any references given or any other statements or data obtained from or about Seller or any of its Owners for the purpose of this Agreement, and (ii) obtain credit reports, including consumer credit reports at any time now or for so long as Seller and/or Owners(s) continue to have any obligation owed to Purchaser as a consequence of this Agreement or for Purchaser's ability to determine Seller's eligibility to enter into any future agreement with Purchaser. LIMITED PERSONAL GUARANTEE OF MERCHANT: IN CONSIDERATION OF BYZFUNDER ENTERING INTO THIS AGREEMENT, AND TO INDUCE BYZFUNDER TO ENTER INTO THIS AGREEMENT, THE UNDERSIGNED PRINCIPAL(S) OF MERCHANT (“GUARANTOR(S)”) HEREBY PERSONALLY GUARANTEE TO BYZFUNDER THAT: (I) ALL INFORMATION PROVIDED BY MERCHANT TO BYZFUNDER IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT IS TRUE, CORRECT AND COMPLETE; (II) THE PRINCIPAL(S) SHALL NOT UNDERTAKE ANY ACTION TO DIVERT BUSINESS FROM THE MERCHANT TO ANY OTHER ENTITY OR OTHERWISE TAKE ACTION LIKELY TO DEPRIVE BYZFUNDER OF THE VALUE OF THE ASSETS PURCHASED; AND (III) SHALL NOT DIRECT, OR THROUGH OMISSION PERMIT, MERCHANT TO BREACH THIS AGREEMENT, OR DO ANY OF THE ACTS PROHIBITED BY THIS AGREEMENT. This guarantee shall be the continuing, irrevocable, unconditional and joint and several obligations of the Guarantor(s), and the Guarantor(s) hereby waive demand of payment, notice of presentment, and any and all requirements of notice, defenses, offsets and counterclaims and any other act or omission of ByzFunder which changes the scope of the Guarantors’ risk, and Guarantor(s) further agree that ByzFunder may proceed directly against the Guarantors without first proceeding against Merchant. Each Guarantor further guarantees the payment of and agrees to pay all Indemnified Amounts (as defined in Section 5.6 of this Agreement). By signing below Guarantors agree to this Guarantee and each representation, warranty and covenant set forth in Sections 2 and 3.1 of this Agreement, which representations, warranties and covenants shall survive the termination of this Agreement. Merchant X Guarantor 1 X Guarantor 2 X BYZFUNDER 2 Doc ID: 38936d40a62cafba38509e2e8139b1cfebf7439f 202104090068 202106170162 IndexNO. INDEX #: 129206-2021 129206-2021 FILED: ONTARIO COUNTY CLERK 06/16/2021 04/09/2021 12:26 10:01 PM AM NYSCEF DOC. NO. 7 2 RECEIVED NYSCEF: 06/16/2021 04/09/2021 PAYMENT RIGHTS PURCHASE AND SALE AGREEMENT TERMS AND CONDITIONS I. TERMS OF ENROLLMENT IN PROGRAM discretion prior to or at any time after Purchaser or its designated representatives execution of this Agreement. A photocopy of and agents shall have the right during Seller’s 1.1 (a) ACH Authorization: this authorization will be deemed acceptable normal business hours and at any other Seller shall execute an agreement (the “ACH as an authorization for release of financial and reasonable time to examine the interior and Authorization”) acceptable to Purchaser to credit information. Purchaser is authorized to exterior of any of Seller’s places of business. authorize the use of the Automated update such information and financial and Purchaser may examine, among other things, Clearinghouse System (ACH) to retrieve the credit profiles from time to time as it deems whether Seller (a) has a place of business that Daily Payment from the Account. Seller shall appropriate. is separate from any personal residence, (b) is provide Purchaser and/or its authorized open for business, and (c) has sufficient agent(s) with all of the information, 1.3 Transactional History. inventory to conduct Seller’s business. When authorizations and passwords necessary for Seller authorizes all of its banks and brokers performing an examination, Purchaser may verifying Seller’s receivables, receipts, and Credit Card processors to provide photograph the interior and exterior of any of deposits and withdrawals into and from the Purchaser with Seller’s banking, brokerage Seller’s places of business, including any Account. Seller hereby authorizes Purchaser and/or processing history to determine signage, and may photograph any Owner. and/or its agent(s) to deduct from the qualification or continuation in this program. Purchaser or any of its agents shall have the Account the Purchased Amount and any other right to inspect, audit, check, and make amounts owed by Seller to Purchaser as 1.4 Indemnification. extracts from any copies of the books, specified herein and to pay such amounts to Seller and Guarantor(s) jointly and severally records, journals, orders, receipts, Purchaser. If an ACH transaction is rejected by indemnify and hold harmless Processor, its correspondence that relate to Seller’s Seller’s financial institution for any reason officers, directors and shareholders against all accounts or other transactions between the other than a stop payment order placed by losses, damages, claims, liabilities and parties thereto and the general financial Seller with its financial institution, including expenses (including reasonable attorney’s condition of Seller and Purchaser may remove without limitation insufficient funds, Seller fees) incurred by Processor resulting from (a) any of such records temporarily for the agrees that Purchaser may resubmit any ACH claims asserted by Purchaser for monies owed purpose of having copies made thereof. transaction that is dishonored as permitted to Purchaser from Seller and (b) actions taken Purchaser shall have the right to hire a under the NACHA rules. In the event by Processor in reliance upon any fraudulent, Certified Public Accountant, licensed in the Purchaser makes an error in processing any misleading or deceptive information or state where the business is located to perform payment or credit, Seller authorizes Purchaser instructions provided by Purchaser. analysis of the accounting records for the to initiate ACH entries to or from the Account purpose of determining if the Specified to correct the error. These authorizations 1.5 No Liability. Percentage of receipts has been made apply not only to the approved Account but In no event will Purchaser be liable for any available for remittance to Purchaser. Seller also to any subsequent or alternate account claims asserted by Seller or Guarantor(s) hereby agrees to fully cooperate with such used by the Seller for these deposits, whether under any legal theory for lost profits, lost analysis upon the request of Purchaser. preapproved by Purchaser or not. This revenues, lost business opportunities, additional authorization is not a waiver of exemplary, punitive, special, incidental, 1.8 Power of Attorney. Purchaser’s right to declare Seller in default if indirect or consequential damages, each of Seller irrevocably appoints Purchaser as its Seller uses an account that Purchaser did not which is waived by both Seller and agent and attorney-in-fact with full authority first preapprove in writing. This authorization Guarantor(s). In the event these claims are to take any action or execute any instrument shall be irrevocable without the prior written nonetheless raised, Seller and Guarantor(s) or document to settle all obligations due to consent of Purchaser. will be jointly liable for all of Purchaser ’s legal Seller from any bank or Processor, or in the (b) Bank Holidays and Other Exceptions. fees and expenses resulting therefrom. Seller case of an occurrence of an Event of Default Purchaser will debit the Daily Payment each and each Owner and each Guarantor hereby under Section 3 hereof, to Purchaser under Weekday on which the Bank is open and able and each waives to the maximum extent this Agreement, including without limitation to process ACH transactions. On the Weekday permitted by law any claim for damages (i) to obtain and adjust insurance; (ii) to immediately following any Weekday or against Purchaser or any of its affiliates collect monies due or to become due under or Weekdays on which the Bank was not open to relating to any (i)investigation undertaken by in respect of any of the Purchased Amount; process ACH transactions, Purchaser will debit or on behalf of Purchaser as permitted by this (iii) to receive, endorse and collect any checks, the designated account for an amount equal Agreement or (ii) disclosure of information as notes, drafts, instruments, documents or to the sum of: (i) the Daily Payment amount permitted by this Agreement. chattel paper in connection with clause (i) or due on that Weekday, plus (ii) the Daily clause (ii) above; (iii) to sign Seller ’s name on Payment amount due on the preceding 1.6 Reliance on Terms. any invoice, bill of lading, or assignment Weekday when the Bank was not open or Sections 1.1, 1.3, 1.4, 1.6 and 1.8 of this directing customers or account debtors to could not process ACH transactions. Agreement are agreed to for the benefit of make payment directly to Purchaser; (iv) to Seller, Purchaser and Processor, and file any claims or take any action or institute 1.2 Financial Condition. notwithstanding the fact that Processor is not any proceeding that Purchaser may deem Seller and Guarantor(s) authorize Purchaser a party of this Agreement, Processor may rely necessary for the collection of any of the and its agents to investigate their financial upon their terms and raise them as a defense unpaid Purchased Amount, or otherwise to responsibility and history, and will provide to in any action. enforce its rights with respect to payment of Purchaser any authorizations, bank or the Purchased Amount. In connection financial statements, tax returns, etc., as 1.7 Accounting Records, and Place of therewith, all costs, expenses and fees, Purchaser deems necessary in its sole Business. including legal fees, shall be payable by and Merchant X Guarantor 1 X Guarantor 2 X BYZFUNDER 3 Doc ID: 38936d40a62cafba38509e2e8139b1cfebf7439f 202104090068 202106170162 IndexNO. INDEX #: 129206-2021 129206-2021 FILED: ONTARIO COUNTY CLERK 06/16/2021 04/09/2021 12:26 10:01 PM AM NYSCEF DOC. NO. 7 2 RECEIVED NYSCEF: 06/16/2021 04/09/2021 from Seller and Purchaser is authorized to use “accounts”, “general intangibles”, or discount, not borrowing money from Seller ’s funds to pay for same; and (v) “payment intangibles” as those terms are Purchaser. If Future Receipts are remitted Purchaser shall have the right, without defined in the Uniform Commercial Code as in more slowly than Purchaser may have waiving any of its rights and remedies and effect in the state in which the Seller is anticipated or projected because Seller’s without notice to Seller or any located (the “UCC”) and such sale shall business has slowed down, or if the full Owner/Guarantor, to notify any Credit Card constitute and shall be construed and treated Purchased Amount is never remitted because processor of the sale of Future Receipts and for all purposes as a true and complete sale, Seller’s business went bankrupt or otherwise re-direct the remittance of daily settlements conveying good title to the Future Receipts ceased operations in the ordinary course of to an account of Purchaser ’s choosing in free and clear of any liens and encumbrances, business, and Seller has not breached this order to settle all obligations due to Purchaser from Seller to Purchaser. To the extent the Agreement, Seller would not owe anything to under this Agreement. Future Receipts are “accounts” or “payment Purchaser and would not be in breach of or intangibles” then (i) the sale of the Future default under this Agreement. By this 1.9 Confidentiality. Receipts creates a security interest as defined Agreement, Seller transfers to Purchaser full Seller understands and agrees that the terms in the UC C, (ii) this Agreement constitutes a and complete ownership of the Purchased and conditions of the products and services “security agreement” under the UC C, and (iii) Amount of Future Receipts and Seller retains offered by Purchaser, including this Purchaser has all the rights of a secured party no legal or equitable interest therein. Agreement and any other Purchaser under the UC C with respect to such Future 2.3 Financial Condition and Financial documentations (collectively, “Confidential Receipts. Seller further agrees that, with or Information. Information”) are proprietary and confidential without an Event of Default, Purchaser may Seller’s and Guarantors’ bank and financial information of Purchaser. Accordingly, unless notify account debtors, or other persons statements, copies of which have been disclosure is required by law or court order, obligated on the Future Receipts, of Seller ’s furnished to Purchaser, and future statements Seller shall not disclose Confidential sale of the Future Receipts and may instruct that will be furnished hereafter at the request Information of Purchaser to any person other them to make payment or otherwise render of Purchaser, fairly represent the financial than an attorney, accountant, financial performance to or for the benefit of condition of Seller and Guarantor(s) at such advisor or employee of Seller who needs to Purchaser. dates, and since those dates there has been know such information for the purpose of no material adverse changes, financial or advising Seller (“Advisor”), provided such II. SELLER’S REPRESENTATIONS, WARRANTIES otherwise, in the condition, operall on or Advisor uses Confidential Information solely AND COVENANTS ownership of Seller. Seller and Guarantor(s) for the purpose of advising Seller and first have a continuing, affirmative obligation to agrees in writing to be bound by the terms of 2.1 Good Faith, Best Efforts and Due advise Purchaser of any material adverse this section. A breach hereof entitles Diligence. change in their financial condition, operation Purchaser to not only damages and legal fees Seller will conduct its business in good faith or ownership. Purchaser may request but also to both a temporary restraining order and will use its best efforts to maintain and statements at any time during the and a preliminary injunction without bond or grow its business, to ensure that Purchaser performance of this Agreement and the Seller security. obtains the Purchased Amount. Furthermore, and Guarantor(s) shall provide them to Seller agrees, warrants and represents hereby Purchaser within 5 business days. Seller’s or 1.10 Publicity. that Seller will constantly perform all Guarantors’ failure to do so is a material Seller and each of Seller’s Owners and all appropriate Due Diligence and credit checks breach of this Agreement. Guarantors hereby authorize Purchaser to use of all of the customers’ finances, cash flow, its, his or her name in listings of clients and in solvency, good faith, payment histories and 2.4 Governmental Approvals. advertising and marketing materials. business reputations (the “Due Diligence Seller is in compliance and shall comply with Requirements”) as may be commercially all laws and has valid permits, authorizations 1.11 D/B/As. reasonable to ensure any and all products and licenses to own, operate and lease its Seller hereby acknowledges and agrees that and/or services provided, sold or delivered by properties and to conduct the business in Purchaser may be using “doing business as” or Seller to said customers will be paid for by which it is presently engaged and/or will “d/b/a” names in connection with various customers in full and on time, and will not engage in hereafter. matters relating to the transaction between result in the creation of an unpaid account. Purchaser and Seller, including the filing of UC This is not a guaranty of payment by Seller ’s 2.5 Authorization. C-1 financing statements and any other customers, but is an obligation of Seller and the person(s) signing this notices or filings. commercially reasonable Due Diligence Agreement on behalf of Seller, have full investigation and credit check of customers power and authority to incur and perform the 1.12 Application of Amounts Received. before extending credit to them and obligations under this Agreement, all of which Subject to applicable law, Purchaser reserves continuing no less frequently than monthly so have been duly authorized. the right to apply any amounts received from long as sums are still due. 2.6 Insurance. Seller to any fees or other charges due to Seller will maintain business-interruption Purchaser from Seller prior to applying such 2.2 Nonrecourse Sale of Payment Rights. insurance naming Purchaser as loss payee and amounts to reduce the amount of any Seller represents and warrants that it is selling additional insured in amounts and against outstanding Purchased Amount. the Purchased Amount of Future Receipts to risks as are satisfactory to Purchaser and shall Purchaser in Seller’s normal course of provide Purchaser proof of such insurance 1.13 Acknowledgment of Security Interest business and the Purchase P rice paid by upon request. and Security Agreement. Purchaser is good and valuable consideration The Future Receipts sold by Seller to for the sale. Seller is selling a portion of a 2.7 Processor and Bank Account. Purchaser pursuant to this Agreement are future revenue stream to Purchaser at a Merchant X Guarantor 1 X Guarantor 2 X BYZFUNDER 4 Doc ID: 38936d40a62cafba38509e2e8139b1cfebf7439f 202104090068 202106170162 IndexNO. INDEX #: 129206-2021 129206-2021 FILED: ONTARIO COUNTY CLERK 06/16/2021 04/09/2021 12:26 10:01 PM AM NYSCEF DOC. NO. 7 2 RECEIVED NYSCEF: 06/16/2021 04/09/2021 Seller will not change its Credit Card does not anticipate filing any such bankruptcy 3.1 Events of Default. The occurrence of any processor, add terminals, change its financial petition and it does not anticipate that an of the following events shall constitute an institution or bank account(s) or take any involuntary petition will be filed against it. “Event of Default”: (a) Seller intentionally similar aclll on that could have an adverse interferes with Purchaser’s right to collect the effect upon Seller’s obligations under this 2.12 Sharing of Information. Daily Payment in violation of this Agreement; Agreement, without Purchaser ’s prior written Seller hereby authorizes Purchaser to share (b) Seller violates any term or covenant in this consent. Any such changes shall be a material information regarding Seller ’s performance Agreement; (c) Any representation or breach of this Agreement. under this Agreement with affiliates and warranty by Seller in this Agreement proves to unaffiliated third parties. have been incorrect, false or misleading in any 2.8 Change of Name, Type, Location or Sale material respect when made; (d) the sending of Business. 2.13 Unencumbered Receipts. of notice of termination by Seller; (e) Seller Seller will not conduct Seller’s businesses Seller has good, complete, unencumbered and transports, moves, interrupts, suspends, under any name other than as disclosed to marketable title to all Future Receipts, free dissolves or terminates its business; (f) Seller Processor and Purchaser, nor will Seller and clear of any and all liabilities, liens, claims, transfers or sells all or substantially all of its change any of its places of business or the type changes, restrictions, conditions, options, assets; (g) Seller makes or sends notice of any of business without prior written consent by rights, mortgages, security interests, equities, intended bulk sale or transfer by Seller; (h) Purchaser. Seller will not sell, dispose, transfer pledges and encumbrances of any kind or Seller uses multiple depository accounts or otherwise convey its business or assets nature whatsoever or any other rights or without the prior written consent of without (i) the express prior written consent of interests that may be inconsistent with the Purchaser (i) Seller changes its depositing Purchaser, and (ii) the written agreement of transactions contemplated with, or adverse to account or the Processor without the prior any purchaser or transferee assuming all of the interests of Purchaser. written consent of Purchaser; (j) Seller Seller's obligations under this Agreement defaults under any of the terms, covenants pursuant to documentation satisfactory to 2.14 Business Purpose. and conditions of any other agreement with Purchaser. Seller is a valid business in good standing Purchaser; or (k) Seller fails to provide timely under the laws of the jurisdictions in which it notice to Purchaser such that in any given 2.9 Daily Batch Out. is organized and/or operates. Seller agrees to calendar month there is one or more ACH Seller will ensure that all Credit Card use the Purchase Price solely for business transaction attempted by Purchaser that is transactions are communicated daily to the purposes, and not for personal, family or rejected by Seller ’s bank for insufficient Processor and not later than the day on which household purposes. Seller understands that funds. such transactions occurred. Seller's agreement not to use the Purchase Price for personal, family or household 3.2 Remedies. 2.10 Estoppel purposes means certain important rights If any Event of Default occurs, Purchaser may Certificate. Seller will at all times, and from conferred upon consumers pursuant to proceed to protect and enforce its rights time to time, upon at least 1 day’s prior notice federal or state law will not apply to this including, but not limited to, the following: from Purchaser to Seller, execute, Agreement. Seller agrees that a breach by A. The Specified Percentage shall equal 100%. acknowledge and deliver to Purchaser and/or Seller of the provisions of this section will not The full uncollected Purchased Amount plus all to any other person, firm or corporation affect Purchaser’s rights to the Purchased fees (including legal fees) due under this specified by Purchaser, a statement certifying Amount or to use any remedy legally available Agreement will become due and payable in full that this Agreement is unmodified and in full to Purchaser to obtain delivery of the immediately. force and effect (or, if there have been Purchased Amount. B. Purchaser may enforce the provisions of modifications, that the same is in full force the Performance Guaranty against the and effect as modified and stating the 2.15 Defaults under Other Contracts. Guarantor(s). modifications) and stating the dates which the Seller ’s execution of, and/or performance C. Seller hereby authorizes Purchaser to Purchased Amount or any portion thereof has under this Agreement, will not cause or create execute in the name of the Seller a Confession been delivered to Purchaser or the amount of an Event of Default by Seller under any of Judgment in favor the Purchased Amount that has not been contract with another person or entity. of Purchaser in the full uncollected Purchased delivered to Purchaser. Amount and enter that Confession of 2.16 Account. Judgment as a Judgment with the Clerk of any 2.11 No Bankruptcy. Seller represents and warrants that (i) the Court and execute thereon. As of the date of this Agreement, Seller is not Account is Seller ’s bank account; (ii) the D. Purchaser may proceed to protect and insolvent and does not contemplate and has person executing this Authorization on behalf enforce its rights and remedies by lawsuit. I n not filed any petition for bankruptcy of Seller is an authorized signer on the any such lawsuit, under which Purchaser shall protection under Title 11 of the United States Account and has the power and authority to recover Judgment against Seller, Seller shall be Code and there has been no involuntary authorize Purchaser to initiate ACH liable for all of Purchaser ’s costs of the petition brought or pending against Seller. transactions to and from the Account; (iii) the lawsuit, including but not limited to all Seller represents that it has not consulted Account is a legitimate, open, and active bank reasonable attorneys’ fees and court costs. with a bankruptcy attorney within 6 months account used solely for business purposes and E. This Agreement shall be deemed Seller ’s prior to the date of this Agreement, and that not for personal, family or household Assignment of Seller ’s Lease of Seller ’s it has no present intention of closing its purposes. business premises to Purchaser. Upon an business or ceasing to operate its business, Event of Default, Purchaser may exercise its either permanently or temporarily, during the III. EVENTS OF DEFAULT AND REMEDIES rights under this Assignment of Lease without 6-month period after the date of this prior notice to Seller. Agreement. Seller further warrants that it Merchant X Guarantor 1 X Guarantor 2 X BYZFUNDER 5 Doc ID: 38936d40a62cafba38509e2e8139b1cfebf7439f 202104090068 202106170162