Preview
To [LED ROCI LAND UNITY, (ERI IND NO 861/202,
SCEF DOC. NO. 43 RECEIVED
iF
27/2023
NewCo.
CAPITAL GROUP
REVENUE PURCHASE AG REEMENT
This Revenue Purchase Agreement and Security Agreement and Guaranty of Performance (“Agreement”)
dated August 17, 2023 between NewCo Capital Group” VI LLC (“NCG”) the Merchants) listed below
(‘Merchant’) and the Individual(s) listed below (“Guarantor”)
MERCHANTINFORMATION
Merchant's Legal name
JMF SOLUTIONS, INC.
JMF SOLUTIONS INC / JMF / LEASEDMINDS
Type of Entity State of Incorporation / Organization
cop. GLC [Sole Prop [other AL
D/B/A.
JMF SOLUTIONS / JMF NETWORKS,
Physical Address
1008 RANDALL AVE
City State Zip Business Phone
DAPHNE AL 36526 877-404-4717
Guarantor(s) Name Cellphone Number Email Address
JOHN MICHAEL FRANCIS II 251-716-9776 MFRANCIS@JMFNETWORKS.NET
Malling Address
PO BOX 222
City State Zip
MONTROSE AL 36559
Purchase Price Purchased Percent Purchased Amount Payment Frequency Remittance
$ 250,000.00 7 % $ 332,500.00 WEEKLY $ 8,313.00
In consideration of payment by NCG to Merchant of the Purchase Price set forth above, Merchant hereby sells, assigns and
transfers to NCG (making NCG the absolute owner) the Purchased Percentage of all of the Merchant's payments, receipts,
settlements and funds paid to or received by or for the account of Merchant from time to time on and after the date hereof in
fe} payment or settlement of Merchant's existing and future accounts, payment intangibles, credit, debit and/or stored value card
o} transactions, contract rights and other entitlements arising from or relating to the payment of monies from Merchant's customers’
and/or other payors or obligors (the “Future Receipts” or “Receipts” are defined as all payments made by cash, check.
clearinghouse settlement, electronic transfer or other form of monetary payment), for the payments to Merchant as a result of
3 Merchant's sale of goods and/ or services (the “Transactions”) until the Purchased Amount has been delivered by or on behalf
fe}
ie of Merchant to NCG
Initial (Guet
CK IND NO 4861/2023
To a8 OUNTT.Y, CLER
SCEF DOC. NO. 43 RECEIVED
PITAL
27/2023
Merchant is selling a portion of a future revenue stream to NCG at a discount, and is not borrowing money frorn NCG, therefore
there is no interest rate or payment schedule and no time period during which the Purchased Amount must be collected by
NCG. The Remittance Is a good faith estimate of NCG's share of the future revenue stream. Merchant going bankrupt or going
out of business, or experiencing a slowdown in business, or a delay in collecting its receivables, in and of itself, does not constitute
a breach of this Agreement. NCG is entering this Agreement knowing the risks that Merchant's business may not perform as
expected or fail, and NCG assumes these risks based on Merchant's representations, warranties and covenants in this
Agreement, which are designed to give NCG a reasonable and fair opportunity to receive the benefit of its bargain. NCG
acknowledges that it may never receive the Purchased Amount in the event that the Merchant does not generate sufficient
revenue. Merchant and Guarantor(s)(s) are only guaranteeing their performance of the terms of this Revenue Purchase
Agreement, and are not guaranteeing the payment of the Purchased Amount. The initial Remittance shall be as described
above. The Remittance is subject to adjustment as set forth in Paragraph 1.3 and Paragraph 1.4.
NCG will debit the Remittance each business day from only one depositing bank account, which account must be acceptable
fo, and pre-approved by, NCG (the “Account”) into which Merchant and Merchant's customers shall remit the Receipts from
each Transaction, until such time as NCG receives payment in full of the Purchased Amount. Merchant hereby authorizes NCG to
ACH debit the agreed Remittance from the Account on the agreed upon Payment Frequency: a daily basis means any day that
is not a United States banking holiday, provided that NCG may collect twice the Remittance amount on the date following such
banking holiday: NCG may alter the Payment Frequency from weekly to daily upon Event of Default or missed Remittance.
Merchant agrees not to make or cause debits to the Account (other than in favor of NCG) at any time that would cause the
balance therein on any business day to be insufficient to fund payment in full of the agreed Remittance. The Account may not
be used for any personal, family or household purposes. Merchant will provide NCG with all required access codes and monthly
bank statements regarding the Account so that NCG may monitor the Account. NCG payment of tt Purchase Price shall be
deemed the acceptance and performance by NCG of this Agreement. Merchant understands thatit is responsible for ensuring
that the agreed Remittance to be debited by NCG remains in the Account and will be held responsible for any fees incurred by
NCG resulting from a rejected ACH attempt or an Event of Default. NCG is not responsible for any overdrafts or rejected
transactions that may result from NCG‘s ACH debiting the agreed Remittance under the terms of this Agreement.
Notwithstanding anything to the contrary in this Agreement or any other agreement between NCG and Merchant, upon the
occurrence of an Event of Default of the MERCHANT AGREEMENT TERMS AND CONDITIONS the Purchased Percentage shall
equal 100%. A list of all fees applicable under this Agreement is contained in Appendix A.
THE MERCHANT AGREEMENT “TERMS AND CONDITIONS”, THE “SECURITY AGREEMENT AND GUARANTY”
AND THE “ADMINISTRATIVE FORM HEREOF, ARE ALL HEREBY INCORPORATED IN AND MADE A PART OF THIS
MERCHANT AGREEMENT.
FOR THE MERCHANT (#1) By: FOR THE MERCHANT (#2) By:
JOHN MICHAEL FRANCIS II
Print Name and Title Print Name and Title
DocuSigned by:
JOAN MUCKLEL FRANUS Il
ACE 20066295458
Signature Signature
BY GUARANTOR(S) (#1) By: BY GUARANTOR(S) (#2) By:
JOHN MICHAEL FRANCIS II
Print Name and Title Print Name and Title
DocuSigned by:
JOHM MUCALEL PRAMS Il
-ACE2D06629F5458
ro} Signature Signature
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Initial mel
CK IND NO 4861/2023
LEED s...BOE ts) LAND, £OU WY, CLERK 12/27/2023
04:23 PM
SCEF DOC. NO. 43 MERCHANT AGREEMENT TERMS AND CONDITIONS-CEIVED CAPITAL Gi our
27/2023
1 TERMS OF ENROLLMENT IN PROGRAM .6 Transactional History. Merchant authorizes all of its banks, brokers
‘and processor to provide NCG with Merchant's banking, brokerage
.1_Merchant Deposit _Agreement_and Processor. Merchant shall (A) and/or processing history to determine qualification or continuation in
‘execute an agreement acceptable to NCG with a Bank acceptable to this program and for collections purposes. Merchant shall provide NCG
NCG to obtain electronic fund transfer services for the Account, and (8) if with copies of any documents related to Merchant's card processing
‘applicable, execute an agreement acceptable to NCG with a credit and activity or financial and banking affairs within five days after a request
debit card processor (the "Processor’) instructing the Processor to deposit from Nc6.
all Receipts into the Account. Merchant shall provide NCG and/or its 1 Indemnification. Merchant and Guarantor(s)(s) hereby jointly and
‘cuthorized agent(s) with all of the information, authorizations and severally indemnify and hold harmless NCG and each Processor, their
passwords necessary for verifying Merchant's receivables, receipts, respective officers, directors, agents and representatives,
deposits and withdrawals into and from the Account. Merchant hereby contractors, affiliates, and shareholders against all losses, damages,
‘authorizes NCG and/or its agent(s) to withdraw from the Account via ACH costs, claims, liabilities and expenses (including reasonable attorney's
debit the amounts owed to NCG for the receipts as specified herein and to fees) incured by any such indemnifying acts or actions as a direct or
pay such amounts to NCG. These authorizations apply not only to the indirect result of (@) clairns asserfed by NCG for monies owed to NCG
‘approved Account but also to any subsequent or alternate account used. from Merchant and (b) actions taken by indemnitee in reliance upon
by the Merchant for these deposits, whether pre-approved by NCG or any fraudulent, misleading or deceptive information or instructions
not. This additional authorization is not a waiver of NCG’s entitlement to provided by Merchant or Guarantor(s)..
declare this Agreement breached by Merchant as a result of its usage of an 1.8 No Liability. In no event will NCG be liable for any claims asserted
account which NCG did not first pre-approve in writing prior to by Merchant or Guarantor(s)s under any legal or equitable theory for
Merchant's usage thereof. The aforementioned authorizations shall be lost profits, lost revenues, lost business opportunities, exemplary, punitive,
irrevocable without the written consent of NcG. special, incidental, indirect or consequential damages, each of which is
1.2 Term _of Agreement, This Agreement shall remain in full force and waived by both Merchant and Guarantor(s)(s). In the event these
effect unfil the entire Purchased Amount and any other amounts due are claims are nonetheless raised, Merchant and Guarantors) s will be
received by NCG as he terms of this Agreement. jointly liable for all of NCG's attomey’s tees and expenses resulting
1.3 Reconciliation. As long as an Event of Default, or breach of this therefrom.
‘agreement, has not occurred, Merchant, at any time, may request a 1.9 Reliance on Terms. Section Li 16, 17, 1.8 and 25 of this
retroactive reconciliation of the total Remittance Amount. All requests Agreementare agreed to for the benefit of Merchant, NCG, Processor,
hereunder must be in writing to Reconciliations@NewCoCapitalGroup.com. and Merchant's bank and notwithstanding the fact that Processor and
Said request must include copies of all of Merchant's bank account the bank is not a party of this Agreement, Processor and the bank may
statements, credit card processing statements, and accounts receivable rely upon their terms and raise them as a defense in any action
report outstanding if applicable, from the date of this Agreement through
‘and including the date the request is made. If you have questions or 1.10 Sale_of Receipts. Merchant_and NCG agree that the Purchase
comments about your financing, you may contact us by e-mail at Price _under this Agreement is in exchange for the Purchased Amount,
Questions@NewCoCapitalGroup.com. NCG retains the right to reasonably and that such Purchase Price is not intended to be, nor shall it be
request additional documentation including bank login or access to view alll construed as a loan from NCG to Merchant. Merchant agrees that the
Merchant's accounts using third party software, to comectly Purchase Price is in ‘exchange for the Receipts pursuant to
and accurately perform the reconciliation and Merchant's refusal to this Agreement, and that It equals the fair market value of such
provide access shall negate NCG's requirement Yo perform a Receipts. NCG has purchased and shall own all the Receipts
reconciliation until the Merchant provides the appropriate documents for described in this Agreement up to the full Purchased Amount as
NCG to performa reconciliation. Such reconciliation, if applicable, shall the Receipts are created. Merchant acknowledges that NCG's
be performed by NCG within two (2) Business Days following its share of Receipts collected are being held by Merchant in trust and
receipt of Merchant's request for reconciliation and supporting are the sole property of NCG until they are remitted to NCG and shall
documentation by either crediting or debiting the difference back not use NCG’s share of Receipts and shall reflect NCG’s ownership
to, ‘or from, Merchant's Bank Account so that the total amount of NCG's share of Receipts on its books and records. Payments
debited by NCG shall equal the Specific Percentage of the Future made to NCG in respect to the full ‘amount of the Receipts
Receipts that Merchant collected during the contract term. shal be conditioned upon Merchant's sale of products and
.4 Adjustments to the Remittance. As long as an Event of Default, or services, and the payment therefore by Merchant's customers. By this
breach of this agreement, has not occurred, Merchant may give notice ‘Agreement, Merchant transfers to NCG full and complete ownership of
to NCG to request a decrease in the Remittance, should they the Purchased Amount and Merchant retains no legal or equitable
experience a decrease in its Future Receipts. All requests hereunder interest therein, NCG hereby appoints Merchant, and Merchant
must be in writing to Reconciliations@NewCoCapitalGroup.com and accepts appointment, as servicer for and on behalf of NCG for the
must include copies of all of Merchant's bank account statements, purpose of collecting and delivering Receipts toNCG as required by
credit card processing statements, and accounts receivable report this Agreement until NCG has received the Receipts Purchased
‘outstanding from the date of this Agreement through and including the ‘Amount, nd Merchant agrees that all such Receipts shall be
date the request is made. NCG retains the right to reasonably request received and held in trust for the benefit of NCG for purposes of
‘additional documentation including bank login or 3rd party software carrying out the terms of this Agreement. Merchant agrees that It will
access to view all Merchant's accounts, refusal to provide access shall treat the amounts received and the Purchased Receipts delivered
negate NCG’s obligation to adjust the Remittance until the fo NCG under this Agreement in a manner consistent with a sale in
Merchant provides. the appropriate documentation. The Remittance its accounting records and tax returns Merchant agrees that NCG
shall be modified to more closely reflect the Merchant's actual is entitied to audit Merchant's accounting records upon
receipts by multiplying the Merchant's actual receipts by the reasonable notice in order to verify compliance. Merchant waives
Purchased Percentage divided by the number of business days in the any tights of privacy, confidentiality or taxpayer privilege in any
previous (2) calendar weeks. Merchant shall provide NCG with viewing such litigation or arbitration in which Merchant asserts that this
access to their bank account as well as all information reasonably transaction is anything other than a sale of future receipts. In no
requested by NCG to properly calculate the Merchant's Remittance. event shall the aggregate of all amounts or any portion thereof be
At the end of the two (2) calendar weeks the Merchant may request deemed as interest hereunder, and in the event it is found to be
‘another adjustment pursuant to this paragraph or it is agreed that the interest despite the parties hereto specifically representing that it is
Merchant's Remittance shall return to the Remittance as agreed NOT interest, It shall be found that no sum charged or collected
upon on Page 1 of this Agreement. hereunder shall exceed the highest rate permissible at law. In the
1.5 Financial Condition, Merchant and Guarantor(s)(s) (as hereinafter event that a court Nonetheless determines that NCG has
defined and limited) authorize NCG and Its agents to investigate charged or received interest hereunder in excess of the highest
their financial responsibility ‘and history, ‘and will provide to applicable rate, the rate in effect hereunder shall automatically be
NCG any authorizations, bank or financial statements, tax retums, reduced to the maximum. rate permitted by applicable law and
etc., as NCG requests in its sole and absolute discretion prior to or at NCG shall promptly refund to Merchant any interest received by NCG
‘any time after execution of this Agreement. A photocopy of this in excess of the maximum, lawful rate, it being intended that
authorization will be deemed as acceptable as an authorization for Merchant not pay or contract to pay, and that NCG not receive or
release of financial and credit information. NcG ls authorized to contract to receive, directly or indirectly in any manner
0 update such information and financial and credit profiles from time to whatsoever, interest in excess of that which may be paid by Merchant
time as It deems appropriate. Merchant shall provide bank login under ‘applicable law. As a result thereof, Merchant
information, or 3rd party software access, to view Merchant's Account in knowingly and willingly waives the defense of Usury in any action or
connection with this Agreement. If Merchant changes the Account’s login proceeding should this transaction be deemed that of a loan and not a
a information, Merchant must provide NCG with the updated login purchase of receivables.
information in writing within 48 hours of such change. Merchant understands
ie and agrees that NCG’s access to the Account is expressly limited to
monitoring for defaults under the Agreement. Upon NCG's request,
Merchant shall within 48 hours provide login information to its bookkeeping
software and/or provide weekly accounts receivable aging reports. Initial JME!
ROC CK IND NO 4861/2023
PILED 2... ts) LAND, COUNTY, CLERK 12/27/2023
04:23 PM
SCEF DOC. NO. 43 RECEIVED
CAPITAL Our 27/2023
11__Power of Attorney. Merchant irrevocably appoints NCG and its 2 REPRESENTATIONS, WARRANTIES AND COVENANTS
‘agents and representatives, as Its agent and attomey-in-fact with full
authority to take any action or execute any instrument or document to Merchant represents warrants and covenants that, as of this date and
settle and ensure payment of all obligations due to NCG from Processor or during he term of this Agreement:
Merchant, regardless of whether the obligation is current or due to a 2.1 Financial Condition and Financial Information. Merchant's and
violation by Merchant of Section 1 or the occurrence of an Event of Guarantor(s)s" bank and financial statements, copies of which have been
Defauit under Section 3 hereof, including without limitation: ()) to obtain and furished to NCG, and future statements which will be furnished hereafter
‘adjust insurance; (jl) to collect monies due or to become due under or in at the discretion of NCG, and any other materials and_ information
respect of any of the Collateral; (i) to receive, endorse and collect any and statements made in connection with this Agreement are
checks, notes, dratts, instruments, documents or chattel paper in complete and truthful and fairly represent the financial condition of
connection with clause () or clause (il) above; (iv) fo sign Merchant's name Merchant at such dates, and since those dates there has been no
on any invoice, bill of lading, or assignment directing customers or account material adverse changes, financial or otherwise, in such condition,
debtors to make payment directly to NCG; (v) to contact Merchant's banks ‘operation or ownership of Merchant, Merchant and Guarantor(s)s have a
and financial institutions using Merchant and Guarantor(s)’ personal continuing, affirmative obligation to advise NCG of any material adverse
information to verify the existence of an account and obtain account change in their financial condition, operation or ownership. NCG may
balances; and (v) to file any claims or take any action or institute any request statements at any time during the performance of this Agreement
proceeding which NCG may deem necessary for the collection of any of and the Merchant and Guarantor(s)s shall provide them to NCG within
the unpaid Purchased Amount from the Collateral, or otherwise to enforce five business days after request from NCG. Merchant's or Guarantor(s)s
its rights with respect to payment of the Purchased Amount including but failure to do so is a material breach of this Agreement.
not limited fo, notifying and instructing account debtors of Merchant and 2 Governmental Approvals. Merchant is in compliance and shall comply
‘any of Merchant's Processors to remit payment of accounts and other with all laws and has valid permits, authorizations and licenses to own,
collateral owed fo Merchant directly to NCG. In connection therewith, all ‘operate and lease Its properties and to conduct the business in which it is
Costs, expenses and fees, including legal fees, shall be payable by presently engaged and/or will engage in hereafter.
Merchant. 2.3 Authorization. Merchant, and the person(s) signing this Agreement on
1.12 Protection of Information. Merchant and each person signing this behalf of Merchant, have full power and authority to incur and perform
Agreement on behalf of Merchant and/or as Owner or Guarantor(s) the obligations under this Agreement, all of which have been duly
in respect of him self for herself personally, authorizes NCS to authorized.
disclose information conceming Merchant's and each Owner's and 2.4 Use of Funds. Merchant agrees that it shall use the Purchase Price for
each Guarantor(s)’s credit standing (including credit bureau reports business purposes and not for personal, family, or household purposes.
that NCG obtains) and business conduct only to agents, affilctes 5 Electronic Check Processing Agreement. Merchant will not change its
subsidiaries, and credit reporting bureaus. Merchant and each Owner Processor, add terminals, change its financial institution or bank
and each Guarantors) hereby and each waives to the maximum. account(s) or take any other action that could have any adverse effect
extent permitted by law any claim for damages against NCG or any upon Merchant's obligations under this Agreement, without NCG's prior
of its affiliates relating to any (investigation undertaken by or on witten consent. Any such changes shall be a material breach of this
behaif of NCG as permitted by this Agreement or (il) disclosure of Agreement.
information as permitted y this ‘Agreement. 4 Change of Name or Location. Merchant will not conduct Merchant's
13 Confidentiality. Merchant understands and agrees that the terms businesses under any name other than as disclosed to the Processor and
‘and conditions ‘of the products and services offered oy NCG, NCG, nor shall Merchant change any of its places of business without
including this Agreement and any other NCG documents (collectively, prior written notification O NCG.
‘Confidential Information”) are proprietary and confidential information p? Daily Baich Out. Merchant will batch out receipts with the Processor
of NCG. Accordingly, unless disclosure is required by law or court daily basis if ‘applicable.
order, Merchant shall not disclose Confidential Information of NCG to 28 Estoppel “certiteate, Merchant will at every and all times, and from
any person other than an attorney, accountant, financial advisor or time to time, upon at least one (1) day's prior notice from NCG to
employee of Merchant who needs to know such information for the Merchant, execute, acknowledge and deliver to NCG and/or to any
Purpose of advising Merchant (“Advisor”), provided such Advisor uses other person, fim or corporation specified by NCG, a statement certifying
such information solely for the purpose of advising Merchant and first that this Agreement is unmodified and in full force and effect (or, if there
agrees in writing to be bound by the terms of this section. A breact have been modifications, that the same is in full force and effect as
hereof entitles NCG to not only damages and reasonable attomey's modified and stating the modifications) and stating the dates which the
fees but ‘also to both a
Temporary Restraining Order ond a Purchased Amount or any portion thereof has been repaid
Preliminary Injunction without Bond or security 9 No Bankruptcy. As of the date of this Agreement, Merchant is not
14 Publicity. Merchant and each ot Merchant's Owners and all insolvent and does not contemplate filing for bankruptcy in the next six
Guarantor(s) hereby authorize NCG to use its name in listings of © months and has not consulted with a bankruptcy attorney or filed
clients and in advertising and marketing materials, any petition for bankruptcy _ protection pursuant to the United
15 _D/B/A’s. Merchant hereby acknowledges and agrees that NCG States Bankruptcy Code and there has been no involuntary petition
may be using "doing business as or ‘d/b/a’ names in connection brought or pending against Merchant. Merchant further warrants that it
with various matters relating to the transaction between NCG and does not anticipate filing any such bankruptcy petition nor does
Merchant, including the fling of UCC-1 financing staternents and Merchant anticipate that an involuntary petition will be filed against
other Notices filings Merchant. Notwithstanding, the Merchant's filing for bankruptcy shall not
16 Authority to Contact, Merchant and Owner/Guarantor(s) explicitly constitute an event of default under this Agreement.
agree to be contacted by NCG and its agents and affiliates by 10__Unencumbered _ Receipts. Merchant has good, complete,
telephone, email and/or SMS I text messaging _ provided in unencumbered and marketable title to all Receipts and all collateral in
connection with this Agreement and agree to cover alll usual third- which NCG has been granted a security interest under the Security
party costs or charges that may be associated with such contacts. Agreement, free and clear of any and all liabilities, liens, claims, charges,
Merchant and Owner/Guarantor(s) understand that they are not restrictions, conditions, options, rights, mortgages, security interests,
required to agree to this paragraph as a condition of entering this eauities, pledges and encumbrances of any kind or nature whatsoever
Agreement. other than in favor of NCG or any other rights or interests that may be
17 Authority to Service Accounts. In the event Merchant is unable inconsistent with the transactions contemplated with, or adverse to the
or unwiling to collect all or some of the Receipts, NCG shall have interests NCG.
the right, without waiving any of its other rights and remedies under .11 Business Purpose. Merchant is a valid business in good standing
this Agreement, to notify the Processor, ‘any other credit card or under the laws of the jurisdictions in which it is organized and/or operates,
Payment processor used by Merchant, or ony third party having and Merchant is entering in to this Agreement for business purposes and
monies owed to Merchant for its sale or delivery of goods or not as a consumer for personal, farnily or household purposes.
services (including without limitation Merchant's customers), of the sale 2.12 Defaults under Other Contracts. Merchant's execution of, and/or
ro} of the Specified Percentage of the Receipts under this Agreement, Performance under this Agreement, will not cause or create an event of
0 and to direct such credit card, payment processor or other third default by Merchant under any contract with another person or entity.
party tomake payment to NCG of all or any portion of the 2.13 Good Faith. Merchant and Guarantor(s)s hereby affirm that Merchant
amounts received by such credit card, payment processor or third is receiving the Purchase Price and selling NCG the Purchased Amount in
party on behalf of Merchant. If no Event of Default has occurred, good faith and will use the Purchase Price funds to maintain and grow
a NCG shall remit back to Merchant the excess above the Specified Merchant's business.
Percentage of the Receipts that it collected pursuant to this
ie Paragraph within 2 business days of payment and shall provide
a reconciliation inaccordance with paragraph 1.3.
Initial JME!
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PILED 2... ts) LAND, COU WY, CLERK 32/27/2023
04:23 PM
SCEF DOC. NO. 43 RECEIVED
CAPITAL G Our
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3 EVENTS OF DEFAULT AND REMEDIES 4 MISCELLANEOUS
3.1 Events of Default. The occurrence of any of the following events shall 4.1 Modifications; Agreements. No modification, amendment, waiver or
constitute an “Event of Default” hereunder: (a) Merchant or Guarantor(s) consent of any provision of this Agreement shall be effective unless the
shall violate any term or ‘covenant in this, Agreement; (b) Any same shall be in writing and signed by NCG.
representation or warranty by Merchant or Guarantor(s) in this Agreement 4.2 Assignment. NCG may assign, transfer or sell its rights to receive the
shall prove to have been incorrect, false or misleading in any material Purchased Amount or delegate its duties hereunder, either in whole or
respect when made; (c) the sending of notice of termination by Merchant in part.
‘or verbally notifying NCG of its intent to breach this Agreement; (d) the 4.3 Notices. All notices, requests, consents, demands and other
Merchant fails to request a Reconciliation or Adjustments to the communications hereunder shall be delivered by certified m ail, retum.
Remittance pursuant to Paragraphs 1.3 & 1.4 (as appropriate) within 1 receipt requested, to the respective parties to this Agreement at the
business day of a Merchant's Remittance retumed of insufficient funds in addresses set forth in this Agreement. Notices to NCG shall become,
the Account such that the ACH of the Remittance amount was not be effective only upon receipt by NCG. Notices to Merchant shall
honored by Merchant's bank: (e) Merchant falls to provide its bank become effective three days atter malting,
statements, and/or month to date bank ‘activity, accounts 4.4 Waiver Remedies. No failure on the part of NCG to exercise, and
receivable reports, and/or bank login information within two (2) business no delay in exercising any right under this Agreement shall operate as a
days of a request by NCG, or the merchant changes their bank login waiver thereof, nor shall any single or partial exercise of any right
information (which was previously-provided to NCG) without providing
NCG with the updated login information in writing within 48 hours of such under this Agreement preclude any other or further exercise thereof or
update; (f) Merchant shall voluntarily transfer or sell all or substantially all of the exercise of any other right. The remedies provided hereunder are
its assets; (g) Merchant shall make or send notice of any intended bulk cumulative and not exclusive of any remedies provided by law or
sale or transfer by Merchant; (ph) Merchant shall use multiple equity.
depository accounts without the prior written consent of NCG or takes 4.5 Binding Effect, Governing law, Venue and Jurisdiction. This
‘any other action that intentionally interferes with or prevents NCG from Agreement, Security Agreement and Guaranty, Guaranty of
teceiving the Purchased Amount in accordance with the terms of this Performance, and any and all addenda, attachments, exhibits, and
Agreement; () Merchant shall enter into any financing agreements with other documents relating to this Agreement in any way, shall be
‘ony other party including but not limited to: Loans, Merchant Cash binding upon and inure to the benefit of Merchant and Guarantor(s)
Advances, Receivables financing, or any other agreement that will ‘on the one hand, and NCG and their respective successors and
increase the total debt owed by Merchant to any other party: @). ‘assigns, except that Merchant and Guarantor(s) shall not have the
Merchant shall change its depositing account without the prior written right to assign their nights hereunder or any Interest herein without
‘consent of NCG; (k) Merchant shall close its depositing account used for the prior written consent of NCG which consent may be withheld in
ACH debits without the prior written consent of NCG; (1) Merchant’s bank NCG's sole discretion. NCG reserves the rights to assign this Agreement
retums a code other than NSF cutting NCG from its collections; (m) with or without prior written notice to Merchant. This Agreement,
Merchant or any Owner/ Guarantor(s), directly or indirectly, causes to be Security Agreement, Guaranty of Performance, and any and all
formed a new entity or otherwise becomes associated with any new or addenda, attachments, exhibits, and other documents relating to this
existing entity, which operates a business similar to or competitive with that Agreement in any way, shall be governed by and construed in
‘of Merchant; or (n) Merchant shall default under any of the terms, accordance with the laws of the state of New York, without regards to
‘covenants and conditions of any other ‘agreement with NCS. ‘any applicable principles of conflicts of law. Any suit, action or
3.2 Limited Personal Guaranty. Guarantor shall provide a limited guaranty proceeding arising hereunder, or the interpretation, performance or
‘of performance in connection with this Agreement (Guaranty). The breach hereof, shall be instituted exclusively In the Supreme Court of
Guaranty shall ‘only guaranty the Merchant's performance of the the State of New York (the “Acceptable Forums”) and not in the
‘covenants, representations and conditions of this Agreement and shall not federal courts located within the State of New York. The
guarantee the Remittance payment except upon the occurrence of
‘an Event of Default, Upon the occurrence of an Event of Default, NCG Merchant, ‘and Guarantor(s) specifically waive their right to remove
will enforce its rights against the Guarantors) of this transaction. any state court action commenced by NCG and further consent to
Said Guarantor(s) will be jointly and severally liable to NCG for all of the Remand of any matter pending between any of the Parties to this
NCG's losses and Guarantor(s) will be jointly and severally liable to NCG Agreement to State Court. All Parties to. this Agreement, hereby
for all of NCG’s losses and damages, in additional to all costs and ‘acknowledge and agree that the Acceptable Forurns are
expenses and legal fees associated with such enforcement. For the convenient for the resolution of any disputes, submit to their jurisdiction
avoidance of doubt, the Guarantor shall not be liable in the event that ‘and waive any and alll rights to object to jurisdiction or venue in same.
the Merchant is not llatie under mis Agreement. Merchant and Guarantor(s) hereby agree that the mailing of any
3.3 Remedies. Upon the occurrence of an Event of Default that is not Summons and Complaint in any proceeding commenced by NCG by
waived pursuant to Section 4.4, hereof, NCG may proceed to protect and cetlified o 1 registered m_ ail, return receipt requested to the
enforce its rights or remedies by suit in equity or by action at law, or both, Mailing Address listed on this Agreement ,or via email to the Email
whether for the specific performance of any covenant, agreement or Address listed on this Agreement, or any other process required by any
‘other provision contained herein, ‘or to enforce the discharge of such court will constitute valid and lawful service of process against
Merchant's obligations hereunder (Including the Guaranty) or any other them without the necessity for service by any other means provided
legal or equitable right or remedy, including but not iimited to (1) by statute or rule of court, but without invalidating service performed
‘accelerating the full uncollected Purchased Amount (2) filing the in accordance with such other provisions.
Confession of Judgment and executing thereon, and (3) enforcing the 4.6 Survival of Representation, etc. All representations, warranties and
Security Agreement contained herein including any and all rights and covenants herein shall survive the execution and delivery of this
remedies of a secured party under Uniform Commercial Code Article 9, Ag
Preview
To [LED ROCI LAND UNITY, (ERI IND NO 861/202, SCEF DOC. NO. 43 RECEIVED iF 27/2023 NewCo. CAPITAL GROUP REVENUE PURCHASE AG REEMENT This Revenue Purchase Agreement and Security Agreement and Guaranty of Performance (“Agreement”) dated August 17, 2023 between NewCo Capital Group” VI LLC (“NCG”) the Merchants) listed below (‘Merchant’) and the Individual(s) listed below (“Guarantor”) MERCHANTINFORMATION Merchant's Legal name JMF SOLUTIONS, INC. JMF SOLUTIONS INC / JMF / LEASEDMINDS Type of Entity State of Incorporation / Organization cop. GLC [Sole Prop [other AL D/B/A. JMF SOLUTIONS / JMF NETWORKS, Physical Address 1008 RANDALL AVE City State Zip Business Phone DAPHNE AL 36526 877-404-4717 Guarantor(s) Name Cellphone Number Email Address JOHN MICHAEL FRANCIS II 251-716-9776 MFRANCIS@JMFNETWORKS.NET Malling Address PO BOX 222 City State Zip MONTROSE AL 36559 Purchase Price Purchased Percent Purchased Amount Payment Frequency Remittance $ 250,000.00 7 % $ 332,500.00 WEEKLY $ 8,313.00 In consideration of payment by NCG to Merchant of the Purchase Price set forth above, Merchant hereby sells, assigns and transfers to NCG (making NCG the absolute owner) the Purchased Percentage of all of the Merchant's payments, receipts, settlements and funds paid to or received by or for the account of Merchant from time to time on and after the date hereof in fe} payment or settlement of Merchant's existing and future accounts, payment intangibles, credit, debit and/or stored value card o} transactions, contract rights and other entitlements arising from or relating to the payment of monies from Merchant's customers’ and/or other payors or obligors (the “Future Receipts” or “Receipts” are defined as all payments made by cash, check. clearinghouse settlement, electronic transfer or other form of monetary payment), for the payments to Merchant as a result of 3 Merchant's sale of goods and/ or services (the “Transactions”) until the Purchased Amount has been delivered by or on behalf fe} ie of Merchant to NCG Initial (Guet CK IND NO 4861/2023 To a8 OUNTT.Y, CLER SCEF DOC. NO. 43 RECEIVED PITAL 27/2023 Merchant is selling a portion of a future revenue stream to NCG at a discount, and is not borrowing money frorn NCG, therefore there is no interest rate or payment schedule and no time period during which the Purchased Amount must be collected by NCG. The Remittance Is a good faith estimate of NCG's share of the future revenue stream. Merchant going bankrupt or going out of business, or experiencing a slowdown in business, or a delay in collecting its receivables, in and of itself, does not constitute a breach of this Agreement. NCG is entering this Agreement knowing the risks that Merchant's business may not perform as expected or fail, and NCG assumes these risks based on Merchant's representations, warranties and covenants in this Agreement, which are designed to give NCG a reasonable and fair opportunity to receive the benefit of its bargain. NCG acknowledges that it may never receive the Purchased Amount in the event that the Merchant does not generate sufficient revenue. Merchant and Guarantor(s)(s) are only guaranteeing their performance of the terms of this Revenue Purchase Agreement, and are not guaranteeing the payment of the Purchased Amount. The initial Remittance shall be as described above. The Remittance is subject to adjustment as set forth in Paragraph 1.3 and Paragraph 1.4. NCG will debit the Remittance each business day from only one depositing bank account, which account must be acceptable fo, and pre-approved by, NCG (the “Account”) into which Merchant and Merchant's customers shall remit the Receipts from each Transaction, until such time as NCG receives payment in full of the Purchased Amount. Merchant hereby authorizes NCG to ACH debit the agreed Remittance from the Account on the agreed upon Payment Frequency: a daily basis means any day that is not a United States banking holiday, provided that NCG may collect twice the Remittance amount on the date following such banking holiday: NCG may alter the Payment Frequency from weekly to daily upon Event of Default or missed Remittance. Merchant agrees not to make or cause debits to the Account (other than in favor of NCG) at any time that would cause the balance therein on any business day to be insufficient to fund payment in full of the agreed Remittance. The Account may not be used for any personal, family or household purposes. Merchant will provide NCG with all required access codes and monthly bank statements regarding the Account so that NCG may monitor the Account. NCG payment of tt Purchase Price shall be deemed the acceptance and performance by NCG of this Agreement. Merchant understands thatit is responsible for ensuring that the agreed Remittance to be debited by NCG remains in the Account and will be held responsible for any fees incurred by NCG resulting from a rejected ACH attempt or an Event of Default. NCG is not responsible for any overdrafts or rejected transactions that may result from NCG‘s ACH debiting the agreed Remittance under the terms of this Agreement. Notwithstanding anything to the contrary in this Agreement or any other agreement between NCG and Merchant, upon the occurrence of an Event of Default of the MERCHANT AGREEMENT TERMS AND CONDITIONS the Purchased Percentage shall equal 100%. A list of all fees applicable under this Agreement is contained in Appendix A. THE MERCHANT AGREEMENT “TERMS AND CONDITIONS”, THE “SECURITY AGREEMENT AND GUARANTY” AND THE “ADMINISTRATIVE FORM HEREOF, ARE ALL HEREBY INCORPORATED IN AND MADE A PART OF THIS MERCHANT AGREEMENT. FOR THE MERCHANT (#1) By: FOR THE MERCHANT (#2) By: JOHN MICHAEL FRANCIS II Print Name and Title Print Name and Title DocuSigned by: JOAN MUCKLEL FRANUS Il ACE 20066295458 Signature Signature BY GUARANTOR(S) (#1) By: BY GUARANTOR(S) (#2) By: JOHN MICHAEL FRANCIS II Print Name and Title Print Name and Title DocuSigned by: JOHM MUCALEL PRAMS Il -ACE2D06629F5458 ro} Signature Signature o} a rol ie Initial mel CK IND NO 4861/2023 LEED s...BOE ts) LAND, £OU WY, CLERK 12/27/2023 04:23 PM SCEF DOC. NO. 43 MERCHANT AGREEMENT TERMS AND CONDITIONS-CEIVED CAPITAL Gi our 27/2023 1 TERMS OF ENROLLMENT IN PROGRAM .6 Transactional History. Merchant authorizes all of its banks, brokers ‘and processor to provide NCG with Merchant's banking, brokerage .1_Merchant Deposit _Agreement_and Processor. Merchant shall (A) and/or processing history to determine qualification or continuation in ‘execute an agreement acceptable to NCG with a Bank acceptable to this program and for collections purposes. Merchant shall provide NCG NCG to obtain electronic fund transfer services for the Account, and (8) if with copies of any documents related to Merchant's card processing ‘applicable, execute an agreement acceptable to NCG with a credit and activity or financial and banking affairs within five days after a request debit card processor (the "Processor’) instructing the Processor to deposit from Nc6. all Receipts into the Account. Merchant shall provide NCG and/or its 1 Indemnification. Merchant and Guarantor(s)(s) hereby jointly and ‘cuthorized agent(s) with all of the information, authorizations and severally indemnify and hold harmless NCG and each Processor, their passwords necessary for verifying Merchant's receivables, receipts, respective officers, directors, agents and representatives, deposits and withdrawals into and from the Account. Merchant hereby contractors, affiliates, and shareholders against all losses, damages, ‘authorizes NCG and/or its agent(s) to withdraw from the Account via ACH costs, claims, liabilities and expenses (including reasonable attorney's debit the amounts owed to NCG for the receipts as specified herein and to fees) incured by any such indemnifying acts or actions as a direct or pay such amounts to NCG. These authorizations apply not only to the indirect result of (@) clairns asserfed by NCG for monies owed to NCG ‘approved Account but also to any subsequent or alternate account used. from Merchant and (b) actions taken by indemnitee in reliance upon by the Merchant for these deposits, whether pre-approved by NCG or any fraudulent, misleading or deceptive information or instructions not. This additional authorization is not a waiver of NCG’s entitlement to provided by Merchant or Guarantor(s).. declare this Agreement breached by Merchant as a result of its usage of an 1.8 No Liability. In no event will NCG be liable for any claims asserted account which NCG did not first pre-approve in writing prior to by Merchant or Guarantor(s)s under any legal or equitable theory for Merchant's usage thereof. The aforementioned authorizations shall be lost profits, lost revenues, lost business opportunities, exemplary, punitive, irrevocable without the written consent of NcG. special, incidental, indirect or consequential damages, each of which is 1.2 Term _of Agreement, This Agreement shall remain in full force and waived by both Merchant and Guarantor(s)(s). In the event these effect unfil the entire Purchased Amount and any other amounts due are claims are nonetheless raised, Merchant and Guarantors) s will be received by NCG as he terms of this Agreement. jointly liable for all of NCG's attomey’s tees and expenses resulting 1.3 Reconciliation. As long as an Event of Default, or breach of this therefrom. ‘agreement, has not occurred, Merchant, at any time, may request a 1.9 Reliance on Terms. Section Li 16, 17, 1.8 and 25 of this retroactive reconciliation of the total Remittance Amount. All requests Agreementare agreed to for the benefit of Merchant, NCG, Processor, hereunder must be in writing to Reconciliations@NewCoCapitalGroup.com. and Merchant's bank and notwithstanding the fact that Processor and Said request must include copies of all of Merchant's bank account the bank is not a party of this Agreement, Processor and the bank may statements, credit card processing statements, and accounts receivable rely upon their terms and raise them as a defense in any action report outstanding if applicable, from the date of this Agreement through ‘and including the date the request is made. If you have questions or 1.10 Sale_of Receipts. Merchant_and NCG agree that the Purchase comments about your financing, you may contact us by e-mail at Price _under this Agreement is in exchange for the Purchased Amount, Questions@NewCoCapitalGroup.com. NCG retains the right to reasonably and that such Purchase Price is not intended to be, nor shall it be request additional documentation including bank login or access to view alll construed as a loan from NCG to Merchant. Merchant agrees that the Merchant's accounts using third party software, to comectly Purchase Price is in ‘exchange for the Receipts pursuant to and accurately perform the reconciliation and Merchant's refusal to this Agreement, and that It equals the fair market value of such provide access shall negate NCG's requirement Yo perform a Receipts. NCG has purchased and shall own all the Receipts reconciliation until the Merchant provides the appropriate documents for described in this Agreement up to the full Purchased Amount as NCG to performa reconciliation. Such reconciliation, if applicable, shall the Receipts are created. Merchant acknowledges that NCG's be performed by NCG within two (2) Business Days following its share of Receipts collected are being held by Merchant in trust and receipt of Merchant's request for reconciliation and supporting are the sole property of NCG until they are remitted to NCG and shall documentation by either crediting or debiting the difference back not use NCG’s share of Receipts and shall reflect NCG’s ownership to, ‘or from, Merchant's Bank Account so that the total amount of NCG's share of Receipts on its books and records. Payments debited by NCG shall equal the Specific Percentage of the Future made to NCG in respect to the full ‘amount of the Receipts Receipts that Merchant collected during the contract term. shal be conditioned upon Merchant's sale of products and .4 Adjustments to the Remittance. As long as an Event of Default, or services, and the payment therefore by Merchant's customers. By this breach of this agreement, has not occurred, Merchant may give notice ‘Agreement, Merchant transfers to NCG full and complete ownership of to NCG to request a decrease in the Remittance, should they the Purchased Amount and Merchant retains no legal or equitable experience a decrease in its Future Receipts. All requests hereunder interest therein, NCG hereby appoints Merchant, and Merchant must be in writing to Reconciliations@NewCoCapitalGroup.com and accepts appointment, as servicer for and on behalf of NCG for the must include copies of all of Merchant's bank account statements, purpose of collecting and delivering Receipts toNCG as required by credit card processing statements, and accounts receivable report this Agreement until NCG has received the Receipts Purchased ‘outstanding from the date of this Agreement through and including the ‘Amount, nd Merchant agrees that all such Receipts shall be date the request is made. NCG retains the right to reasonably request received and held in trust for the benefit of NCG for purposes of ‘additional documentation including bank login or 3rd party software carrying out the terms of this Agreement. Merchant agrees that It will access to view all Merchant's accounts, refusal to provide access shall treat the amounts received and the Purchased Receipts delivered negate NCG’s obligation to adjust the Remittance until the fo NCG under this Agreement in a manner consistent with a sale in Merchant provides. the appropriate documentation. The Remittance its accounting records and tax returns Merchant agrees that NCG shall be modified to more closely reflect the Merchant's actual is entitied to audit Merchant's accounting records upon receipts by multiplying the Merchant's actual receipts by the reasonable notice in order to verify compliance. Merchant waives Purchased Percentage divided by the number of business days in the any tights of privacy, confidentiality or taxpayer privilege in any previous (2) calendar weeks. Merchant shall provide NCG with viewing such litigation or arbitration in which Merchant asserts that this access to their bank account as well as all information reasonably transaction is anything other than a sale of future receipts. In no requested by NCG to properly calculate the Merchant's Remittance. event shall the aggregate of all amounts or any portion thereof be At the end of the two (2) calendar weeks the Merchant may request deemed as interest hereunder, and in the event it is found to be ‘another adjustment pursuant to this paragraph or it is agreed that the interest despite the parties hereto specifically representing that it is Merchant's Remittance shall return to the Remittance as agreed NOT interest, It shall be found that no sum charged or collected upon on Page 1 of this Agreement. hereunder shall exceed the highest rate permissible at law. In the 1.5 Financial Condition, Merchant and Guarantor(s)(s) (as hereinafter event that a court Nonetheless determines that NCG has defined and limited) authorize NCG and Its agents to investigate charged or received interest hereunder in excess of the highest their financial responsibility ‘and history, ‘and will provide to applicable rate, the rate in effect hereunder shall automatically be NCG any authorizations, bank or financial statements, tax retums, reduced to the maximum. rate permitted by applicable law and etc., as NCG requests in its sole and absolute discretion prior to or at NCG shall promptly refund to Merchant any interest received by NCG ‘any time after execution of this Agreement. A photocopy of this in excess of the maximum, lawful rate, it being intended that authorization will be deemed as acceptable as an authorization for Merchant not pay or contract to pay, and that NCG not receive or release of financial and credit information. NcG ls authorized to contract to receive, directly or indirectly in any manner 0 update such information and financial and credit profiles from time to whatsoever, interest in excess of that which may be paid by Merchant time as It deems appropriate. Merchant shall provide bank login under ‘applicable law. As a result thereof, Merchant information, or 3rd party software access, to view Merchant's Account in knowingly and willingly waives the defense of Usury in any action or connection with this Agreement. If Merchant changes the Account’s login proceeding should this transaction be deemed that of a loan and not a a information, Merchant must provide NCG with the updated login purchase of receivables. information in writing within 48 hours of such change. Merchant understands ie and agrees that NCG’s access to the Account is expressly limited to monitoring for defaults under the Agreement. Upon NCG's request, Merchant shall within 48 hours provide login information to its bookkeeping software and/or provide weekly accounts receivable aging reports. Initial JME! ROC CK IND NO 4861/2023 PILED 2... ts) LAND, COUNTY, CLERK 12/27/2023 04:23 PM SCEF DOC. NO. 43 RECEIVED CAPITAL Our 27/2023 11__Power of Attorney. Merchant irrevocably appoints NCG and its 2 REPRESENTATIONS, WARRANTIES AND COVENANTS ‘agents and representatives, as Its agent and attomey-in-fact with full authority to take any action or execute any instrument or document to Merchant represents warrants and covenants that, as of this date and settle and ensure payment of all obligations due to NCG from Processor or during he term of this Agreement: Merchant, regardless of whether the obligation is current or due to a 2.1 Financial Condition and Financial Information. Merchant's and violation by Merchant of Section 1 or the occurrence of an Event of Guarantor(s)s" bank and financial statements, copies of which have been Defauit under Section 3 hereof, including without limitation: ()) to obtain and furished to NCG, and future statements which will be furnished hereafter ‘adjust insurance; (jl) to collect monies due or to become due under or in at the discretion of NCG, and any other materials and_ information respect of any of the Collateral; (i) to receive, endorse and collect any and statements made in connection with this Agreement are checks, notes, dratts, instruments, documents or chattel paper in complete and truthful and fairly represent the financial condition of connection with clause () or clause (il) above; (iv) fo sign Merchant's name Merchant at such dates, and since those dates there has been no on any invoice, bill of lading, or assignment directing customers or account material adverse changes, financial or otherwise, in such condition, debtors to make payment directly to NCG; (v) to contact Merchant's banks ‘operation or ownership of Merchant, Merchant and Guarantor(s)s have a and financial institutions using Merchant and Guarantor(s)’ personal continuing, affirmative obligation to advise NCG of any material adverse information to verify the existence of an account and obtain account change in their financial condition, operation or ownership. NCG may balances; and (v) to file any claims or take any action or institute any request statements at any time during the performance of this Agreement proceeding which NCG may deem necessary for the collection of any of and the Merchant and Guarantor(s)s shall provide them to NCG within the unpaid Purchased Amount from the Collateral, or otherwise to enforce five business days after request from NCG. Merchant's or Guarantor(s)s its rights with respect to payment of the Purchased Amount including but failure to do so is a material breach of this Agreement. not limited fo, notifying and instructing account debtors of Merchant and 2 Governmental Approvals. Merchant is in compliance and shall comply ‘any of Merchant's Processors to remit payment of accounts and other with all laws and has valid permits, authorizations and licenses to own, collateral owed fo Merchant directly to NCG. In connection therewith, all ‘operate and lease Its properties and to conduct the business in which it is Costs, expenses and fees, including legal fees, shall be payable by presently engaged and/or will engage in hereafter. Merchant. 2.3 Authorization. Merchant, and the person(s) signing this Agreement on 1.12 Protection of Information. Merchant and each person signing this behalf of Merchant, have full power and authority to incur and perform Agreement on behalf of Merchant and/or as Owner or Guarantor(s) the obligations under this Agreement, all of which have been duly in respect of him self for herself personally, authorizes NCS to authorized. disclose information conceming Merchant's and each Owner's and 2.4 Use of Funds. Merchant agrees that it shall use the Purchase Price for each Guarantor(s)’s credit standing (including credit bureau reports business purposes and not for personal, family, or household purposes. that NCG obtains) and business conduct only to agents, affilctes 5 Electronic Check Processing Agreement. Merchant will not change its subsidiaries, and credit reporting bureaus. Merchant and each Owner Processor, add terminals, change its financial institution or bank and each Guarantors) hereby and each waives to the maximum. account(s) or take any other action that could have any adverse effect extent permitted by law any claim for damages against NCG or any upon Merchant's obligations under this Agreement, without NCG's prior of its affiliates relating to any (investigation undertaken by or on witten consent. Any such changes shall be a material breach of this behaif of NCG as permitted by this Agreement or (il) disclosure of Agreement. information as permitted y this ‘Agreement. 4 Change of Name or Location. Merchant will not conduct Merchant's 13 Confidentiality. Merchant understands and agrees that the terms businesses under any name other than as disclosed to the Processor and ‘and conditions ‘of the products and services offered oy NCG, NCG, nor shall Merchant change any of its places of business without including this Agreement and any other NCG documents (collectively, prior written notification O NCG. ‘Confidential Information”) are proprietary and confidential information p? Daily Baich Out. Merchant will batch out receipts with the Processor of NCG. Accordingly, unless disclosure is required by law or court daily basis if ‘applicable. order, Merchant shall not disclose Confidential Information of NCG to 28 Estoppel “certiteate, Merchant will at every and all times, and from any person other than an attorney, accountant, financial advisor or time to time, upon at least one (1) day's prior notice from NCG to employee of Merchant who needs to know such information for the Merchant, execute, acknowledge and deliver to NCG and/or to any Purpose of advising Merchant (“Advisor”), provided such Advisor uses other person, fim or corporation specified by NCG, a statement certifying such information solely for the purpose of advising Merchant and first that this Agreement is unmodified and in full force and effect (or, if there agrees in writing to be bound by the terms of this section. A breact have been modifications, that the same is in full force and effect as hereof entitles NCG to not only damages and reasonable attomey's modified and stating the modifications) and stating the dates which the fees but ‘also to both a Temporary Restraining Order ond a Purchased Amount or any portion thereof has been repaid Preliminary Injunction without Bond or security 9 No Bankruptcy. As of the date of this Agreement, Merchant is not 14 Publicity. Merchant and each ot Merchant's Owners and all insolvent and does not contemplate filing for bankruptcy in the next six Guarantor(s) hereby authorize NCG to use its name in listings of © months and has not consulted with a bankruptcy attorney or filed clients and in advertising and marketing materials, any petition for bankruptcy _ protection pursuant to the United 15 _D/B/A’s. Merchant hereby acknowledges and agrees that NCG States Bankruptcy Code and there has been no involuntary petition may be using "doing business as or ‘d/b/a’ names in connection brought or pending against Merchant. Merchant further warrants that it with various matters relating to the transaction between NCG and does not anticipate filing any such bankruptcy petition nor does Merchant, including the fling of UCC-1 financing staternents and Merchant anticipate that an involuntary petition will be filed against other Notices filings Merchant. Notwithstanding, the Merchant's filing for bankruptcy shall not 16 Authority to Contact, Merchant and Owner/Guarantor(s) explicitly constitute an event of default under this Agreement. agree to be contacted by NCG and its agents and affiliates by 10__Unencumbered _ Receipts. Merchant has good, complete, telephone, email and/or SMS I text messaging _ provided in unencumbered and marketable title to all Receipts and all collateral in connection with this Agreement and agree to cover alll usual third- which NCG has been granted a security interest under the Security party costs or charges that may be associated with such contacts. Agreement, free and clear of any and all liabilities, liens, claims, charges, Merchant and Owner/Guarantor(s) understand that they are not restrictions, conditions, options, rights, mortgages, security interests, required to agree to this paragraph as a condition of entering this eauities, pledges and encumbrances of any kind or nature whatsoever Agreement. other than in favor of NCG or any other rights or interests that may be 17 Authority to Service Accounts. In the event Merchant is unable inconsistent with the transactions contemplated with, or adverse to the or unwiling to collect all or some of the Receipts, NCG shall have interests NCG. the right, without waiving any of its other rights and remedies under .11 Business Purpose. Merchant is a valid business in good standing this Agreement, to notify the Processor, ‘any other credit card or under the laws of the jurisdictions in which it is organized and/or operates, Payment processor used by Merchant, or ony third party having and Merchant is entering in to this Agreement for business purposes and monies owed to Merchant for its sale or delivery of goods or not as a consumer for personal, farnily or household purposes. services (including without limitation Merchant's customers), of the sale 2.12 Defaults under Other Contracts. Merchant's execution of, and/or ro} of the Specified Percentage of the Receipts under this Agreement, Performance under this Agreement, will not cause or create an event of 0 and to direct such credit card, payment processor or other third default by Merchant under any contract with another person or entity. party tomake payment to NCG of all or any portion of the 2.13 Good Faith. Merchant and Guarantor(s)s hereby affirm that Merchant amounts received by such credit card, payment processor or third is receiving the Purchase Price and selling NCG the Purchased Amount in party on behalf of Merchant. If no Event of Default has occurred, good faith and will use the Purchase Price funds to maintain and grow a NCG shall remit back to Merchant the excess above the Specified Merchant's business. Percentage of the Receipts that it collected pursuant to this ie Paragraph within 2 business days of payment and shall provide a reconciliation inaccordance with paragraph 1.3. Initial JME! ROC CK IND NO 4861/2023 PILED 2... ts) LAND, COU WY, CLERK 32/27/2023 04:23 PM SCEF DOC. NO. 43 RECEIVED CAPITAL G Our 27/2023 3 EVENTS OF DEFAULT AND REMEDIES 4 MISCELLANEOUS 3.1 Events of Default. The occurrence of any of the following events shall 4.1 Modifications; Agreements. No modification, amendment, waiver or constitute an “Event of Default” hereunder: (a) Merchant or Guarantor(s) consent of any provision of this Agreement shall be effective unless the shall violate any term or ‘covenant in this, Agreement; (b) Any same shall be in writing and signed by NCG. representation or warranty by Merchant or Guarantor(s) in this Agreement 4.2 Assignment. NCG may assign, transfer or sell its rights to receive the shall prove to have been incorrect, false or misleading in any material Purchased Amount or delegate its duties hereunder, either in whole or respect when made; (c) the sending of notice of termination by Merchant in part. ‘or verbally notifying NCG of its intent to breach this Agreement; (d) the 4.3 Notices. All notices, requests, consents, demands and other Merchant fails to request a Reconciliation or Adjustments to the communications hereunder shall be delivered by certified m ail, retum. Remittance pursuant to Paragraphs 1.3 & 1.4 (as appropriate) within 1 receipt requested, to the respective parties to this Agreement at the business day of a Merchant's Remittance retumed of insufficient funds in addresses set forth in this Agreement. Notices to NCG shall become, the Account such that the ACH of the Remittance amount was not be effective only upon receipt by NCG. Notices to Merchant shall honored by Merchant's bank: (e) Merchant falls to provide its bank become effective three days atter malting, statements, and/or month to date bank ‘activity, accounts 4.4 Waiver Remedies. No failure on the part of NCG to exercise, and receivable reports, and/or bank login information within two (2) business no delay in exercising any right under this Agreement shall operate as a days of a request by NCG, or the merchant changes their bank login waiver thereof, nor shall any single or partial exercise of any right information (which was previously-provided to NCG) without providing NCG with the updated login information in writing within 48 hours of such under this Agreement preclude any other or further exercise thereof or update; (f) Merchant shall voluntarily transfer or sell all or substantially all of the exercise of any other right. The remedies provided hereunder are its assets; (g) Merchant shall make or send notice of any intended bulk cumulative and not exclusive of any remedies provided by law or sale or transfer by Merchant; (ph) Merchant shall use multiple equity. depository accounts without the prior written consent of NCG or takes 4.5 Binding Effect, Governing law, Venue and Jurisdiction. This ‘any other action that intentionally interferes with or prevents NCG from Agreement, Security Agreement and Guaranty, Guaranty of teceiving the Purchased Amount in accordance with the terms of this Performance, and any and all addenda, attachments, exhibits, and Agreement; () Merchant shall enter into any financing agreements with other documents relating to this Agreement in any way, shall be ‘ony other party including but not limited to: Loans, Merchant Cash binding upon and inure to the benefit of Merchant and Guarantor(s) Advances, Receivables financing, or any other agreement that will ‘on the one hand, and NCG and their respective successors and increase the total debt owed by Merchant to any other party: @). ‘assigns, except that Merchant and Guarantor(s) shall not have the Merchant shall change its depositing account without the prior written right to assign their nights hereunder or any Interest herein without ‘consent of NCG; (k) Merchant shall close its depositing account used for the prior written consent of NCG which consent may be withheld in ACH debits without the prior written consent of NCG; (1) Merchant’s bank NCG's sole discretion. NCG reserves the rights to assign this Agreement retums a code other than NSF cutting NCG from its collections; (m) with or without prior written notice to Merchant. This Agreement, Merchant or any Owner/ Guarantor(s), directly or indirectly, causes to be Security Agreement, Guaranty of Performance, and any and all formed a new entity or otherwise becomes associated with any new or addenda, attachments, exhibits, and other documents relating to this existing entity, which operates a business similar to or competitive with that Agreement in any way, shall be governed by and construed in ‘of Merchant; or (n) Merchant shall default under any of the terms, accordance with the laws of the state of New York, without regards to ‘covenants and conditions of any other ‘agreement with NCS. ‘any applicable principles of conflicts of law. Any suit, action or 3.2 Limited Personal Guaranty. Guarantor shall provide a limited guaranty proceeding arising hereunder, or the interpretation, performance or ‘of performance in connection with this Agreement (Guaranty). The breach hereof, shall be instituted exclusively In the Supreme Court of Guaranty shall ‘only guaranty the Merchant's performance of the the State of New York (the “Acceptable Forums”) and not in the ‘covenants, representations and conditions of this Agreement and shall not federal courts located within the State of New York. The guarantee the Remittance payment except upon the occurrence of ‘an Event of Default, Upon the occurrence of an Event of Default, NCG Merchant, ‘and Guarantor(s) specifically waive their right to remove will enforce its rights against the Guarantors) of this transaction. any state court action commenced by NCG and further consent to Said Guarantor(s) will be jointly and severally liable to NCG for all of the Remand of any matter pending between any of the Parties to this NCG's losses and Guarantor(s) will be jointly and severally liable to NCG Agreement to State Court. All Parties to. this Agreement, hereby for all of NCG’s losses and damages, in additional to all costs and ‘acknowledge and agree that the Acceptable Forurns are expenses and legal fees associated with such enforcement. For the convenient for the resolution of any disputes, submit to their jurisdiction avoidance of doubt, the Guarantor shall not be liable in the event that ‘and waive any and alll rights to object to jurisdiction or venue in same. the Merchant is not llatie under mis Agreement. Merchant and Guarantor(s) hereby agree that the mailing of any 3.3 Remedies. Upon the occurrence of an Event of Default that is not Summons and Complaint in any proceeding commenced by NCG by waived pursuant to Section 4.4, hereof, NCG may proceed to protect and cetlified o 1 registered m_ ail, return receipt requested to the enforce its rights or remedies by suit in equity or by action at law, or both, Mailing Address listed on this Agreement ,or via email to the Email whether for the specific performance of any covenant, agreement or Address listed on this Agreement, or any other process required by any ‘other provision contained herein, ‘or to enforce the discharge of such court will constitute valid and lawful service of process against Merchant's obligations hereunder (Including the Guaranty) or any other them without the necessity for service by any other means provided legal or equitable right or remedy, including but not iimited to (1) by statute or rule of court, but without invalidating service performed ‘accelerating the full uncollected Purchased Amount (2) filing the in accordance with such other provisions. Confession of Judgment and executing thereon, and (3) enforcing the 4.6 Survival of Representation, etc. All representations, warranties and Security Agreement contained herein including any and all rights and covenants herein shall survive the execution and delivery of this remedies of a secured party under Uniform Commercial Code Article 9, Ag