Preview
FILED: ORANGE COUNTY CLERK 01/16/2024 11:48 AM INDEX NO. EF008632-2023
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/16/2024
EXHIBIT A
FILED: ORANGE COUNTY CLERK 01/16/2024 11:48 AM INDEX NO. EF008632-2023
FILED:
NYSCEF DOC. NO. 9
ORANGE COUNTY CLERK 12/12/2023 03:51 PM INDEX NO.
RECEIVED EF008632-2023
NYSCEF: 01/16/2024
DocuSign Envelope ID: 8B6258B7-9CFA-446C-87A1-C586B866FEBE
NYSCEF DOC. NO. 2 RECEIVED
SimplyNYSCEF: 12/12/2023
Funding, LLC
Receivables Purchase Agreement - Date 07/12/2023 45 Broadway, Suite 2450
New York, NY 10006
Section 1. Sellers Information
Seller(s) STAR
STRUCK
SPORTS
LIMITED
LIABILITY
COMPANY
DBASTAR
STRUCK
SPORTS
; STAR
STRUCK STAR
SUPERSTARS; STRUCK
SPORTS
LLC;STARSTRUCK
SPORTS
LLC;STAR
STRUCK
SPORTS
STUDIO
B,LLC
Legal Address 4802 stamp Rd City Temple Hills State MD Zip 20748
Physical Address 4802 stamp Rd City Temple Hills State MD Zip 20748
Entity Type O Sole Prop ¡ Corporation El Limited Liability Company O Partnership Federal Tax ID
Bank Account Account Number Routing Number
M
Section 2. Principal Information
Principal Name #1 MARY DURANT WADDELL Ownership % 100.00 DOB
Home Address 6308 Rigoli Ln Glenn Dale MD 20769 SSN
Principal Name #2 Ownership% DOB
Home Address SSN
Principal Name #3 Ownership% DOB
Home Address SSN
Principal Name #4 Ownership% DOB
Home Address SSN
Section 3. Sale & Purchase
This Receivable Purchase Agreement ("Agreement") shall be effective as of the Purchase Date (as hereinafter defined). Seller hereby sells, assigns, transfers,
and delivers to Simply Funding LLC, together with its successors and/or assigns ("Buyer"), and Buyer hereby purchases and accepts from Seller, all of Seller's
right, title, and interest in and to a percentage ("Purchased Percentage") of all proceeds of operations and activities (collectively "Receivables"), that involve
making a product or service available for purchase, selling of goods, or work being performed ("Sales") that occur duringthe course of Seller's business, until
Buyer receives the purchased amount (the "Purchased Amount") as set forth below. Receivables include all Sales and all payments made to the Seller by cash,
check, ACH, electronic transfer, credit card, debit card, bank card, charge card, or other form of monetary payment. In exchange for the foregoing, Buyer shall
pay Seller the amount ("Purchase Price") set forth below. This transaction is not a loan.
$ 35,000.00 $ 49,350.00 6.7100 % $ 1,370.83
Purchase Price Purchased Amount Purchased Percentage Specified Amount
Continuing until Buyer receives the Purchased Amount, Seller shall immediately deliver all Receivables to a Bank Account ("Bank Account") at a financiai
institution acceptable to Buyer ("Bank"), and Buyer shall have the exclusive right to collect the Purchased Amount by initiating transactions, including but not
limited to ACH debits, in the monetary amount equal to the Purchased Percentage. The Specified Amount is an estimated average calculated on the Seller's
representations regarding past performance and cash flow.
If the Seller has a previous agreement with Buyer for the sale of Receivables that has yet to be delivered in full (the "Prior Agreement"), the amount still due
and owing to Buyer pursuant to the Prior Agreement is $ , which amount will be deducted from Purchase Price of this
Agreement.
Seller hereby agrees to pay Buyer $ 1,400.00 for the (the "Processing Costs") costs and expenses related to the approvai and management ofthe
sale of Receivables, including UCC filing fees, ACH/wire processing, and other third-party services. The Processing Costs will be deducted from the Purchase
Price of this Agreement.
Seller and Buyer agree, and intend, that the purchase and sale of the Receivables pursuant hereto shall constitute a sale of accounts or payment intangibles
as such term is used in Article 9 of the Uniform Commercial Code ("UCC"), which sales are absolute and irrevocable and provide Buyer with the full benefits of
ownership of purchased Receivables. Seller has no right (or obligation) to repurchase or resell the purchased Receivables.
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Filed in Orange County 12/12/2023 03:51:36 PM $0.00 Bk: 5155 Pg: 1405 Index: # EF008632-2023 Clerk: SW
FILED: ORANGE COUNTY CLERK 01/16/2024 11:48 AM INDEX NO. EF008632-2023
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/16/2024
FILED: ORANGE COUNTY CLERK 12/12/2023 03:51 PM INDEX NO. EF008632-2023
DocuSign Envelope ID: 8B6258B7-9CFA-446C-87A1-C586B866FEBE
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/12/2023
PERFORMANCE"
THE "GUARANTEE OF AS WELL AS THE
EXHIBITS ARE ALL HEREBY INCORPORATED IN AND MADE PART OF THIS AGREEMENT.
Section 4. General Terms
1. Delivery of Receivables. Seller and Buyer agree that it is the responsibility of the Seller to deliver the purchased Receivables to Buyer immediately
upon Seller collecting Receivables. Buyer agrees to accept the remittance of the purchased Receivables by (a) Buyer debiting the Seller'sBank Account by
initiating ACH debit transactions on a schedule determined by Buyer ("Direct Debit"), (b) accepting remittance directly from the Sellers processor(s) of electronic
payments ("Processor"), including but not limited to credit and debit card transactions ("Direct Split"), and/or (c) Seller shall direct Processor(s) to deposit all
proceeds into a lockbox account established by Buyer on behalf of Seller where the Buyer will then collect its purchased Receivables from ("Lockbox Split").
2. Delivery Methods. Buyershall decide in its sole discretion which of the foregoing methods it will accept for the delivery of the purchased Receivables.
Buyer also may, in its sole discretion, at any time, change the method by which it will accept the delivery of the purchased Receivables. Seller agrees to provide
any and all approval, documents, and assistance required to complete a change in delivery method.
a. Direct Debit. If Buyer agrees to accept delivery of the purchased Receivables by debiting the Bank Account by Direct Debit, Seller shall direct all
Processors to deposit all amounts owed to Seller into such Bank Account and shall deposit all other Receivables into such Bank Account. Seller shall provide
Buyer or its authorized agent with all information, authorizations, and passwords necessary to verify Seller's receivables, receipts and deposits into the Bank
Account. All right, title and interest in the amount equal to the Purchased Amount, Purchased Percentage, and the Specified Amount shall be owned by Buyer.
Seller hereby authorizes Buyer to initiate ACH debit transactions from the Bank Account and Bank. This authorization is irrevocable, absolute and unconditional
Seller agrees that Bank may charge and collect applicable fees. Buyer will continue to debit from the Bank Account until Seller has remitted to Buyer the entire
Purchased Amount, plus any other amounts owed to Buyer under this Agreement. Seller agrees that the Bank may rely upon the instructions of Buyer, without
any independent verification, in paying the Specified Amount to Buyer. Seller waives any claims it may have against the Bank in connection with actions taken
based on instructions from Buyer or the actions or omissions of Buyer. Seller agrees that until Seller has remitted the entire Purchased Amount, plus any other
amounts owed to Buyer underthis Agreement, (i) the Bank will be acting on behalf of Buyer, (ii) the Bank is not affiliated with Buyer, and (iii) Buyer is not
responsible for, and Seller agrees to hold Buyer harmless for, the actions of the Bank.
b. Direct Split and Lockbox $plit. If Buyer agrees to accept delivery of the purchased Receivables from the $eller's Processor(s) using the Direct Split
and/or the Lockbox method, and until the entire Purchased Amount, plus any other amounts owed to Buyer under this Agreement have been remitted to
Buyer, Seller (i) irrevocably, absolutely, and unconditionally authorizes Processor(s) to remit the Specified Amount directly to Buyer, rather than toseller, (ii)
irrevocably grants Processor the right to hold the Specified Amount andto remit to Buyer directly (at, before or afterthe time Processor credits or remits to Seller
the balance of the Receivables not sold by Seller to Buyer), (iii) acknowledges and agrees that Processor may provide Buyer with copies of Seller's monthly
processing statements and history, including without limitation Seller's chargebacks, as well as any other information Buyer deems pertinent, (iv) understands
that Buyer does not have any power or authority to control the Processor's actions with respect to the authorization, clearing, settlement and other
processing of transactions, (v) acknowledges and agrees that Buyer is notresponsible for the Processor's actions, (vi) acknowledges and agrees that the
Processor will be acting on behalf of Buyer, and (vii) agrees to hold Buyer harmless for the Processor's actions or omissions.
3. Reconciliation. The Specified Amount is intended to represent the Purchased Percentage of Seller's Receivables. To ensure that the Specified Amount
of Receivables delivered to Buyer accurately reflects the Purchased Percentage of actual Receivables earned by Seller, Seller and Buyer have the right to request
"Reconciliation"
a at any time during the course of this Agreement as follows:
a. Refund/Debit Reconciliation. Seller and Buyer may request a Reconciliation of Seller's actual receipts by Buyer either crediting or debiting the
difference to or from the Bank Account so that the amount Buyer debited in the most recent calendar month (the "Reconciliation Month") will equal the
Purchased Percentage of Receivables that Seller actually collected in the Reconciliation Month the ("Reconciled Receipts Amount"). Upon reasonable
verification that the amount Seller delivered to Buyer in the Reconciliation Month exceeded the Reconciled Receipts Amount, Buyer shall refund the excess to
Seller within 5 business days. If the amount Seller delivered in the Reconciliation Month was less than the Reconciled Receipts Amount, then Buyer will debit
the difference from the Bank Account within 10 days.
b. Adjustment to Periodic Amount Reconciliation. Seller and Buyer may request a Reconciliation adjustment to the Specified Amount on a going-forward
basis to more closely reflect Seller's actual Receivables times the Specified Percentage. Upon reasonable verification of Seller's actuai Receivables, Buyer shall
adjust the Periodic Amount on a going-forward basis to more closely reflect the Seller's actual Receivables times the Purchased Percentage. After each
adjustment made pursuant to this paragraph, the new dollar amount shall be deemed the Specified Amount until any subsequent adjustment.
c. Reconciliation Documentation. Seller shall provide any documentation reasonably requested by Buyer to verify Seller's actual Receivables within 5
business days of Buyer's request. Seller also agrees to provide Buyer with view-only access to the Bank Account by use of third-party services such as Decision
Logic. If Seller fails to timely provide such documentation and view-only access to the Bank Account, then Seller agrees that the Specified Amount shall be
adjusted to the Specified Amount stated above on Page 1 of this Agreement.
d. How to Request a Reconciliation. A reconciliation request by Seller must be: (i) in writing; (ii) include a copy of Seller's bank statement for the
Reconciliation Month and Seller's reasonable estimate of expected Receivables for the next calendar month; and (iii) be sent to Buyer or emailed to Buyer. A
reconciliation request by Buyer may be sent to Seller by regular mail or by e-maii.
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NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/16/2024
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DocuSign Envelope ID: 8B6258B7-9CFA-446C-87A1-C586B866FEBE
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/12/2023
4. Nonrecourse Sale of Receivables. THIS IS NOT A LOAN. Seller is selling a portion of a revenue stream to Buyer at a discount, not borrowing money
from Buyer, therefore, there is no interest rate or payment schedule and no set time period during which the Purchased Amount must be collected by Buyer.
Seller's obligation to deliver the Receivables is conditioned upon the continuance of the Seller's Receivables. Buyer is buying the Purchased Amount of
Receivables knowing the risks that Seller's Receivables may vary. Buyer assumes these risks based on Seller's representations and the warranties and covenants
in this Agreement that are designed to give Buyer a reasonable and fair opportunity to receive the benefit of its bargain. Seller accepts the risk that Receivables
may be substantially greater than anticipated, therefore collection of the Purchased Amount could occur over an abbreviated period. By this Agreement, Seller
transfers to Buyer full and complete ownership of the Purchased Amount and Seller retains no legal or equitable interest therein. Seller agrees that it will treat
the Purchase Price and Purchased Amount in a manner consistent with a sale in its accounting records and tax returns. Seller agrees that Buyer is entitled to
audit Seller's accounting records upon reasonable notice in orderto verify compliance. Seller waives any rights of privacy, confidentiality or taxpayer privilege
in any such litigation or arbitration in which Seller asserts that this transaction is anything other than a sale of Receivables.
5. Due Diligence. Seller and each Principal signing below authorize Buyer to conduct background, onsite, and financial examinations of Seller, which
may include without limitation, address verifications for up to ten (10) years; verification of insurance coverage; verification of good business practices
through the appropriate agencies; a search of industry association databases; and a search for bankruptcies, liens or judgments in all jurisdictions where
business functions have been conducted. Any onsite examination may include, without limitation, verification that business is conducted as represented by
Seller at all sites where it conducts business. The financiai examination may include, withoutlimitation, a review of Seller's current financial statements, its most
recent annual reports, tax returns, bank statements, and all other relevantdocumentation. Each Principalsigning below authorizes Buyer, oritsagents,to conduct
background and financial examinations of all principals, managers, interested parties, and/or owners of Seller (the "Principals"). Such examinations may
include, without limitation, a review of information regarding criminal history for all jurisdictions where the Principals has resided and been employed, address
verification for each residences, and employment verification. The examination may also include, without limitation, a review of the consumer credit
standing of the Principals signing below including obtaining a consumer report, and a search for bankruptcies and judgments in all jurisdictions where the
Principals have resided or been employed. The review may also include a review of past, present, and future personai tax returns. The obligation of Buyer
under this Agreement to pay the Purchase Price will not be effective unless and until Buyer has completed its due diligence review of the Seller and each
Principal and Buyer has accepted this Agreement by delivering, either in part or in whole, the Purchase Price.
6. Indemnity and Limitation of Remedies. Seller indemnifies and holds the Bank, Processor(s), Buyer, and Buyers third party contractors, officers,
managers, owners, affiliates, participants, employees, agents and representatives (the "Indemnitees") harmless from and against all losses, damages, claims,
attorneys'
liabilities and expenses, including fees incurred by any of the indemnitees and arising out of or resulting from (i) actions taken in reliance upon
information or instructions provided to Buyer and/or the Processor(s) and their Member Banks by or on behalf of Seller, (ii) a breach of this agreement by
Seller, or (iii) the occurrence of a Termination Event, as hereinafterdefined. In no event will the Indemnitees be liable for any claims asserted against them based
on any theory of law or equity for exemplary, punitive, special or consequential damages, each of which is hereby expressly waived by Seller, except as may be
required by statute or as otherwise provided herein. However, in the event that any Indemnitee shall be found liable, damages shall not exceed the Purchase
Price under any circumstances.
7, Non-disclosure. Seller acknowledges and agrees to consider this Agreement and all things related to this Agreement confidential and private. At no
time will Seller disclose, discuss, distribute, or make publicly available, any information or details related to this Agreement or the Indemnitees unless otherwise
required by law, to any other party than the Buyer.
8. Modification. Seller shall comply with all the terms of this Agreement, and shall not modify or cancel this Agreement at any time in any manner,
without Buyer's prior written consent. Seller shall not modify or cancel the Seller's agreement with its Banks or Processors at any timein any manner, without
Buyer's prior written consent.
9. General Covenants. As of the date of this Agreement, and unless expressly stated otherwise, until the Purchased Amount has been delivered in full,
or otherwise approved in writing by Buyer:
a. Restrictions on Seller. Seller shall abide by and operate within the following restrictions: (i) Seller shall not conduct business under any other name
than disclosed herein; (ii) Seller shall not change its business location, state of formation, Bank Account, Bank, or Processor(s); (iii) Sellershall conduct its
business in the ordinary course and in substantially the same manner as heretofore conducted; (iv) Seller shall comply with the applicable federal, state, and
local law and regulations, applicable permits, authorizations and licenses, and all agreements, leases and other arrangements material to the operation of its
business; (v) Seller shall file all federal, state, and local and foreign tax returns or on any assessment received by Seller to the extent that such taxes become
due; (vi) Seller shall maintain its legal existence in accordance with applicable law; (vii) Seller shall maintain insurance coverage in such amounts and against
such risks as are necessary to protect its business; (viii) Seller shall not voluntarily pledge, or voluntarily grant or permit a lien or security interest in or to the
Bank Account, Purchased Amount, Purchased Percentage, or any of its accounts receivable as security for any loan or other obligation, including but not
limited to the Receivables, other than in favor of Buyer; (ix) Seller shall not voluntarily sell, dispose, convey or otherwise transfer any interest in its Receivables
to any person or entity other than Buyer; (x) Seller shall not, directly or through its owners, enter into any transaction involving the sale of Seller, either by an
issuance, sale or transfer of ownership interests in Seller that results in a change in ownership or voting control of Seller, by a sale or transfer of substantially
all of the assets of Seller, or otherwise; (xi) Seller shall not discontinue its business or any portion thereof, and then reinstitute the same or a similar business,
or portion thereof, either or directly or indirectly through others; (xii) the Seller shall not engage in any fraudulent transfer or fraudulent conveyance, or any
transaction otherwise void or voidable under similar laws or principles; (xiii) Seller shall not change or close the Bank Account and if it does so, then all
applicable provisions of this Agreement shall apply equally to any bank account owned by Seller at any institution, and to any financial institution at which such
subsequent or replacement bank account is held; and (xiv) Seller shall not change or add an additional Processor and if Seller does so, then all applicable
provisions of this Agreement shall apply equally to any Processor that $eller contracts with. The violation of any of the foregoing restrictions shall constitute a
breach of this Agreement. In the event of any breach of any provision of this Section, Buyer is authorized to debit the Bank Account or any other account for
all amounts owed under this Agreement, including but not limited to any amount of the Purchased Amount not yet collected by Buyer,
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NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/16/2024
FILED: ORANGE COUNTY CLERK 12/12/2023 03:51 PM INDEX NO. EF008632-2023
DocuSign Envelope ID: 8B6258B7-9CFA-446C-87A1-C586B866FEBE
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/12/2023
b. Authorization
to Debit Funds. Seller authorizes Buyer to debit funds in accordance with this Agreement directly from all business bank
accounts owned by Seller, including the Bank Account, and agrees to not revoke or cancel such authorizations.
10. Stacking Prohibited. Seller will not undertake any other financing or sell Receivables to anyone other than Buyer without the prior written
consent of Buyer ("Stacking"), and Seller's failure to abide by the terms of this Section will be deemed a Termination Event and Seller and its Principal(s) and
Guarantors(s) will immediately be liable for the full undelivered Purchased Amount.
11. General Representations. if a business entity, Seller is a validly existing corporation/limited liability company/limited partnership/ limited liability
partnership], in good standing under the laws of the state of its formation, organization, or corporation (as the case may be), the person executing this
agreement on behalf of Seller has full power and complete authority to execute this Agreement on behalf of Seller, and this Agreement is valid, binding and
enforceable against seller, As of the date of this Agreement, there are no civil or criminal proceedings pending before any court, government agency, arbitration
panel, or administrative tribunal or, to5eller's knowledge, threatened against Seller, which may result in any material adverse change in the business, property,
or financial condition of Seller. Se]Ier is in compliance
with all applicable federal, state and local faws and regulations and possesses and is in compliance with
all permits, authorizations and licenses to own, operate and lease its properties and to conduct the business in which it is presently engaged. Seller possesses
insurance in such amounts and against such risks as are necessary to protect its business. Seller has filed or caused to be filed all federal, state, local and foreign
tax returns which are required to be filed, and has paid or caused to be paid all taxes as shown on such returns or on any assessment received by Seller to the
extent that such taxes have become due, and Seller has no knowledge of any material liability (or basis therefore) for any tax to be imposed on Seller or any
of its assets or properties for which adequate provision has not been made in its financial statements. No sale of purchased Receivables or the use of
any proceeds thereof, will constitute a fraudulent transfer or fraudulent conveyance, or will otherwise be void or voidable under similar laws or principles, the
doctrine of equitable subordination, faws regarding preferential transfers, or for any other reason. Seller's Bank Account constitutes the only bank account into
which Receivables are deposited. No portion of Seller's Receivables, is subject to any lien, security interest, assignment, option or encumbrance, other than the
security interest(s) granted to Buyer. As of the date of this Agreement, there have been no material, adverse changes in Seller's business, nor does Seller have
knowledge of any event or occurrence that will have a negative impact on Seller's business. At no time during the six (6) months immediately preceding the
date of this Agreement has the Seller considered or decided to close or cease operating its business, in whole or in part, temporarily or permanently and, as
of the date of this Agreement, Seller is solvent and is not contemplating insolvency or bankruptcy proceedings and has no intent to close its business in
the 60 days immediately following the date of this Agreement. All representations and warranties in this Agreement, and all financial statements and
other information delivered to Buyer by or on behalf of Seller, are true and correct at the time provided, and no material fact has been omitted. Seller and the
person(s) signing this Agreement on behalf of Seller have full power and authority to enter into and perform the obligations under this Agreement, all of which
have been duly authorized by all necessary and proper actions. Seller agrees that the services of Processors are the exclusive means by which Seller can and
shall process its credit card transactions. Seller shall maintain business practices that do not endanger its ability to process card transactions. If Seller's action
or inaction endanger its ability to process credit card transactions, Buyer may immediately debit from the Bank Account all amounts owed to Buyer under this
Agreement.
12, Timing and Method of Funding. Seller and Buyer agree if Buyer elects to purchase the Receivables, Buyer shall purchase the Receivables on a date
to be determined by Buyer in its sole discretion (the "Purchase Date"). Seller and Buyer further agree that Buyer shall provide payment through any
commercially reasonable method, at Buyer's sole discretion, including, but not limited to, check, federal funds wire, or ACH transfer.
"accounts"
13. Acknowledgment of Security Interest and Security Agreement. The Receivables sold by Seller to Buyer pursuant to this Agreement are
intangibles"
or "payment as those terms are defined in the UCCand such sale shall constitute and shall be construed and treated for all purposes as a true and
complete sale, conveying good title to the Receivables free and clear of any liens and encumbrances, from Seller to Buyer. Tothe extent the Receivables are
"accounts" intangibles"
or "payment then (i) the sale of the Receivables creates a security interest as defined in the UCC; (ii) this Agreement constitutes a
agreement"
"security under the UCC; and (iii) Buyer has all the rights of a secured party under the UCC with respect to such Receivables. Seller hereby grants
to Buyer a security interest in and lien upon all of the Seller's now owned and hereafter acquired accounts and payment intangibles. Seller further agrees that
Buyer may notify account debtors, or other persons obligated on the Receivables, on holding the Receivables of Seller's sale of the Receivables and may instruct
them to make payment or otherwise render performance to or for the benefit of Buyer.
Events:"
14. Termination Events. Except to the extent consented to by Buyer, the following events shall constitute "Termination (i) Seller breaches
any of the terms, covenants or provisions of this Agreement; (ii) Seller modifies, revokes, cancels or terminates, or attempts to modify, revoke, cancel or
terminate, any instructions or authorizations issued to its Bank or Processor(s) in connection with this Agreement; (iii) Seller changes its current Processor(s), or
diverts or directs any credit card transactions to a processor other than its current Processor(s); (iv) Seller establishes an account with its current Processor(s)
that is different from the one provided in connection with this Agreement; (v) Seller refers or directs existing orpotentiai customers to other sellers, businesses,
or vendors to obtain products or services that the Seller sells in the ordinary course of its business with the objective or result of diverting or reducing
Receivables; (vi) Seller refuses to accept credit cards as a means of payment, offers cash or otherincentives to customers to pay by means other than through
the use of a credit card, or otherwise discourages a customer from paying with a credit card; (vii) Seller engages in bartering, in kind or similar transactions
with customers with the objective or result of reducing Receivables; (viii) any representation, warranty or statement made by Seller shall prove to have been
incorrect in any material respect when made or deemed made; (ix) Seller failed to provide correct information or provided misleading information; (x) Seller
places a stop payment of Buyers ACH debit or instructs Bank to reject Buyers ACH debit for any reason; (xi) Seller fails to provide Buyer with requested financial
documents withinfive (5) business days. Subject to arbitration n Section 32, upon the occurrence of a Termination Event, Buyer shall have, in addition to all
other rights and remedies under this Agreement or otherwise, all other rights and remediesprovided under the UCC, In addition, Buyer shall have the right, upon
the occurrence of a Termination Event, to recover from the Seller or via ACH debit to the Bank Account or any other bank accounts, the entire uncollected
balance of the Purchased Amount, plus any and all other amounts otherwise due and owing under this Agreement, by exercising any and/or all of the following
rights: (i) to instruct any Processor to deliver to Buyer, without any prior notice to Seller, any and all of Seller's Receivables as the Specified Amount shall adjust
to and equal 100% of Receggibles; (ii) to initiate debit entries to Seller's Bank Account and/or any other bank account that$eller may open or maintain, and/or
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DocuSign Envelope ID: 8B6258B7-9CFA-446C-87A1-C586B866FEBE
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/12/2023
(iii) to pursue any and all other remedies at iaw or in equity. Buyer and Seller acknowledge and agree that Seller or Principals filing for bankrupt or going out of
business, in and of itself, does not constitute a Termination Event.
15. Waiver. There shall be effected no waiver by failure on the part of Buyer to exercise, or delay in exercising, any right under this Agreement,
nor shall any single or partiai exercise of any right under this Agreement preclude any other exercise of any right. The remedies provided hereunder are
cumulative and not exclusive of any remedies provided by law or equity. Seller agrees that Buyer is not required to send notice of default or Termination
Event to Seller.
16. Binding Effect. This Agreement shall be binding upon Seller and inure to the benefit of Buyer, its successors and assigns, of which Buyer may
assign or transfer any rights or interests without giving Seller prior notice. Seller shall have no right to assign its rights, interest or obligations hereunder. For
purposes of this Agreement, an assignment includes a change of control in the equity interest and/or controlling interest of Seller. When necessary, this
agreement shall be subject to the terms of the Hetar Iska displayed at 45 Broadway, Suite 2450, New York, NY 10006.
17. Governing Law, Jurisdiction, and Venue. This Agreement and all transactions that it contemplates, including all issues conceming the validity of
this Agreement, the construction of its terms, and the interpretation, performance and enforcement of the rights and duties of Seller and each Guarantor of
Seller's obligations hereunder (collectively, "Seller Parties"), and of Buyer, shall be govemed by and enforced in accordance with the laws of the State of New
York, without regard to any applicable principles of conflicts of laws. All issues or claims arising out of, relating to, in connection with, or incident to this Agreement
and any transactions it contemplates, whether such claims are based in tort, contract, or arise under statute or in equity, including, but not limited to, claims for
declaratory relief, injunctive relief and other similar claims, shall be brought and conducted exclusively in the Supreme Court of the State of New York, or in the
United States District Court for the Eastern District of New York,or, solely in Buyer's discretion, in any state or federal court where Seller is located (collectively,
the "Exclusive Venues"). Further, each party to this Agreement, for themselves and on behalf of their successors, assigns, heirs, personal representatives,
subsidiaries and affiliates, (a) irrevocably consents to personal jurisdiction and the laying of venue in such Exclusive Venues, (b) agrees that the Exclusive
Venues are convenient and (c) expressly waives any objections as to personal jurisdiction and the laying of venue in the Exclusive Venues. Should a
proceeding be initiated in any other forum or venue, each of the parties to this Agreement irrevocably waives any right to oppose any motion or application
made by any other party to transfer such proceeding to an Exclusive Venue. Notwithstanding the foregoing, however, and for avoidance of doubt, the ability to
initiate enforcement in any jurisdiction other than in the Supreme Court of the State of New York, or in the United States District Court for the Eastem District
of New York, is in Buyer's discretion only, and furthermore, nothing herein shall preclude Buyer from domesticating a judgment in a jurisdiction outside of
New York State. The Seller Parties further agree that the mailing by certified or registered mail, return receipt requested, of any process required by any such
court will constitute valid and iawful service of process against them, without the necessity for service by any other means provided by statute or rule of court,
but without invalidating service performed in accordance with such other provisions.
attorneys'
18. Costs and Expenses. Buyer shall be entitled to recover from the Seller all reasonable court costs and fees of twenty-five percent (25%)
of the amount then due, associated with and/or resulting from the enforcement of its rights and remedies under this Agreement or at law and Seller agrees that
attorneys'
such fees shall be deemed reasonable. Any payments under an indemnity obligation shall include all the foregoing costs and expenses, as well as
interest thereon at the applicable statutory rate of interest from the date the indemnity obligation is due until the indemnity obligation shall be paid.
19. Survival and Further Assurances. All representations, warranties and covenants herein shall survive the execution and delivery of this
Agreement, and shall continue in full force and effect until such time as all obligations under this Agreement have been satisfied. This Agreement contains the
entire understanding of the parties and supersedes all prior negotiations, whether oral or written. If any provisions of this Agreement are invalid, illegai or
unenforceable, the remaining provisions shall not be affected in any manner. Seller agrees, from time to time, upon Buyer's request to make, execute,
acknowledge, and deliver to Buyer, such further and additional instruments, documents, and agreements, and to take such further action as may be required
to carry out the intent and purpose of this Agreement.
20. Jury Trial Buyer and Seller Parties hereby waive triai by jury in any court presiding over any action, controversy or preceding arising under this
Agreement and/or with respect to the transactions that it contemplates, including all issues concerning the validity of this Agreement, the construction of its
terms, and the interpretation, performance and enforcement of the rights and duties of Buyer and the Seller Parties, unless this waiver is prohibited by law.
Buyer and Seller Parties hereby acknowledge that this waiver is made irrevocably, unconditionally, knowingly and voluntarily, and that they have been given
ample time and opportunity to seek advice of counsei prior to execution of this Agreement.
21. Counterparts and Reproductions. This Agreement may be executedin any number of counterparts, eachof whichshall bedeemed to be an original
and all of which together shall constitute one instrument. Facsimile copies and .pdf of signatures to this Agreement shall be deemed to be originals and the
parties may rely upon such facsimile and .pdf copies to the same extent as the originals.
22. Ratification and Consent. This Agreement shall not constitute a contract until fully executed by Seller and Buyer has paid the Purchase Price,
regardless of the Purchase Price being paid in part or in full, to Seller, In any circumstance under this Agreement where the consent or waiver of Buyer is
required or contemplated, such consent shall be made in Buyer's sole and unfettered discretion.
23. ACHAuthorization. Seller hereby authorizes Buyer, or its designated agents, successors and/or assigns, to withdraw any amount now due or hereinafter due
under this Agreement, by initiating debit entries to the Bank Account and/or any other bank account that Seller or Principals may open or maintain. In the event of the
occurrence of a termination Event or breach or default of Seller's obligations under this Agreement, Selier authorizes debit of the Bank Account, and/or any other bank
account that Seller or Principals open or maintain for the full unde[ivered Purchased Amount and any other amounts due under this Agreement or any portion thereof.
Further, Seller authorizes and directs the Bank and/or any other bank to accept and to charge any debit entries initiated by Buyer to Seller's Bank Account or other bank
accounts, as the case may be. In the event that Buyer withdraws erroneously from Selfer's Bank Account or any other bank account, Seller authorizes Buyer to credit
such account for the amount erroneously withdrawn. Se[ler understands that the foregoing ACH authorization requirement is a fundamental condition to induce Buyer
to accept this Agreement. Such authorization is intended to be irrevocable. In the event that Seller closes or terminates the Bank Account, or terminates ACH authorization
'
as set forth above, Buy , Glesole discretion, may deem such closure, or termination to be a Termination Event.
Principal 1 Initials Principal 2 Initials Principal 3 Initials Principal 4 Initials
5 of 14
FILED: ORANGE COUNTY CLERK 01/16/2024 11:48 AM INDEX NO. EF008632-2023
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/16/2024
FILED: ORANGE COUNTY CLERK 12/12/2023 03:51 PM INDEX NO. EF008632-2023
DocuSign Envelope ID: 8B6258B7-9CFA-446C-87A1-C586B866FEBE
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/12/2023
24. Counterclaim. If Buyer shall commence any proceeding related to this Agreement, Seller will not interpose any counterclaim or set off of whatever
nature or description in any such proceeding,
Preview
FILED: ORANGE COUNTY CLERK 01/16/2024 11:48 AM INDEX NO. EF008632-2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/16/2024 EXHIBIT A FILED: ORANGE COUNTY CLERK 01/16/2024 11:48 AM INDEX NO. EF008632-2023 FILED: NYSCEF DOC. NO. 9 ORANGE COUNTY CLERK 12/12/2023 03:51 PM INDEX NO. RECEIVED EF008632-2023 NYSCEF: 01/16/2024 DocuSign Envelope ID: 8B6258B7-9CFA-446C-87A1-C586B866FEBE NYSCEF DOC. NO. 2 RECEIVED SimplyNYSCEF: 12/12/2023 Funding, LLC Receivables Purchase Agreement - Date 07/12/2023 45 Broadway, Suite 2450 New York, NY 10006 Section 1. Sellers Information Seller(s) STAR STRUCK SPORTS LIMITED LIABILITY COMPANY DBASTAR STRUCK SPORTS ; STAR STRUCK STAR SUPERSTARS; STRUCK SPORTS LLC;STARSTRUCK SPORTS LLC;STAR STRUCK SPORTS STUDIO B,LLC Legal Address 4802 stamp Rd City Temple Hills State MD Zip 20748 Physical Address 4802 stamp Rd City Temple Hills State MD Zip 20748 Entity Type O Sole Prop ¡ Corporation El Limited Liability Company O Partnership Federal Tax ID Bank Account Account Number Routing Number M Section 2. Principal Information Principal Name #1 MARY DURANT WADDELL Ownership % 100.00 DOB Home Address 6308 Rigoli Ln Glenn Dale MD 20769 SSN Principal Name #2 Ownership% DOB Home Address SSN Principal Name #3 Ownership% DOB Home Address SSN Principal Name #4 Ownership% DOB Home Address SSN Section 3. Sale & Purchase This Receivable Purchase Agreement ("Agreement") shall be effective as of the Purchase Date (as hereinafter defined). Seller hereby sells, assigns, transfers, and delivers to Simply Funding LLC, together with its successors and/or assigns ("Buyer"), and Buyer hereby purchases and accepts from Seller, all of Seller's right, title, and interest in and to a percentage ("Purchased Percentage") of all proceeds of operations and activities (collectively "Receivables"), that involve making a product or service available for purchase, selling of goods, or work being performed ("Sales") that occur duringthe course of Seller's business, until Buyer receives the purchased amount (the "Purchased Amount") as set forth below. Receivables include all Sales and all payments made to the Seller by cash, check, ACH, electronic transfer, credit card, debit card, bank card, charge card, or other form of monetary payment. In exchange for the foregoing, Buyer shall pay Seller the amount ("Purchase Price") set forth below. This transaction is not a loan. $ 35,000.00 $ 49,350.00 6.7100 % $ 1,370.83 Purchase Price Purchased Amount Purchased Percentage Specified Amount Continuing until Buyer receives the Purchased Amount, Seller shall immediately deliver all Receivables to a Bank Account ("Bank Account") at a financiai institution acceptable to Buyer ("Bank"), and Buyer shall have the exclusive right to collect the Purchased Amount by initiating transactions, including but not limited to ACH debits, in the monetary amount equal to the Purchased Percentage. The Specified Amount is an estimated average calculated on the Seller's representations regarding past performance and cash flow. If the Seller has a previous agreement with Buyer for the sale of Receivables that has yet to be delivered in full (the "Prior Agreement"), the amount still due and owing to Buyer pursuant to the Prior Agreement is $ , which amount will be deducted from Purchase Price of this Agreement. Seller hereby agrees to pay Buyer $ 1,400.00 for the (the "Processing Costs") costs and expenses related to the approvai and management ofthe sale of Receivables, including UCC filing fees, ACH/wire processing, and other third-party services. The Processing Costs will be deducted from the Purchase Price of this Agreement. Seller and Buyer agree, and intend, that the purchase and sale of the Receivables pursuant hereto shall constitute a sale of accounts or payment intangibles as such term is used in Article 9 of the Uniform Commercial Code ("UCC"), which sales are absolute and irrevocable and provide Buyer with the full benefits of ownership of purchased Receivables. Seller has no right (or obligation) to repurchase or resell the purchased Receivables. DS Principal 1 Initials Principal 2 Initials Principal 3 Initials Principal 4 Initials 1 of 14 Filed in Orange County 12/12/2023 03:51:36 PM $0.00 Bk: 5155 Pg: 1405 Index: # EF008632-2023 Clerk: SW FILED: ORANGE COUNTY CLERK 01/16/2024 11:48 AM INDEX NO. EF008632-2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/16/2024 FILED: ORANGE COUNTY CLERK 12/12/2023 03:51 PM INDEX NO. EF008632-2023 DocuSign Envelope ID: 8B6258B7-9CFA-446C-87A1-C586B866FEBE NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/12/2023 PERFORMANCE" THE "GUARANTEE OF AS WELL AS THE EXHIBITS ARE ALL HEREBY INCORPORATED IN AND MADE PART OF THIS AGREEMENT. Section 4. General Terms 1. Delivery of Receivables. Seller and Buyer agree that it is the responsibility of the Seller to deliver the purchased Receivables to Buyer immediately upon Seller collecting Receivables. Buyer agrees to accept the remittance of the purchased Receivables by (a) Buyer debiting the Seller'sBank Account by initiating ACH debit transactions on a schedule determined by Buyer ("Direct Debit"), (b) accepting remittance directly from the Sellers processor(s) of electronic payments ("Processor"), including but not limited to credit and debit card transactions ("Direct Split"), and/or (c) Seller shall direct Processor(s) to deposit all proceeds into a lockbox account established by Buyer on behalf of Seller where the Buyer will then collect its purchased Receivables from ("Lockbox Split"). 2. Delivery Methods. Buyershall decide in its sole discretion which of the foregoing methods it will accept for the delivery of the purchased Receivables. Buyer also may, in its sole discretion, at any time, change the method by which it will accept the delivery of the purchased Receivables. Seller agrees to provide any and all approval, documents, and assistance required to complete a change in delivery method. a. Direct Debit. If Buyer agrees to accept delivery of the purchased Receivables by debiting the Bank Account by Direct Debit, Seller shall direct all Processors to deposit all amounts owed to Seller into such Bank Account and shall deposit all other Receivables into such Bank Account. Seller shall provide Buyer or its authorized agent with all information, authorizations, and passwords necessary to verify Seller's receivables, receipts and deposits into the Bank Account. All right, title and interest in the amount equal to the Purchased Amount, Purchased Percentage, and the Specified Amount shall be owned by Buyer. Seller hereby authorizes Buyer to initiate ACH debit transactions from the Bank Account and Bank. This authorization is irrevocable, absolute and unconditional Seller agrees that Bank may charge and collect applicable fees. Buyer will continue to debit from the Bank Account until Seller has remitted to Buyer the entire Purchased Amount, plus any other amounts owed to Buyer under this Agreement. Seller agrees that the Bank may rely upon the instructions of Buyer, without any independent verification, in paying the Specified Amount to Buyer. Seller waives any claims it may have against the Bank in connection with actions taken based on instructions from Buyer or the actions or omissions of Buyer. Seller agrees that until Seller has remitted the entire Purchased Amount, plus any other amounts owed to Buyer underthis Agreement, (i) the Bank will be acting on behalf of Buyer, (ii) the Bank is not affiliated with Buyer, and (iii) Buyer is not responsible for, and Seller agrees to hold Buyer harmless for, the actions of the Bank. b. Direct Split and Lockbox $plit. If Buyer agrees to accept delivery of the purchased Receivables from the $eller's Processor(s) using the Direct Split and/or the Lockbox method, and until the entire Purchased Amount, plus any other amounts owed to Buyer under this Agreement have been remitted to Buyer, Seller (i) irrevocably, absolutely, and unconditionally authorizes Processor(s) to remit the Specified Amount directly to Buyer, rather than toseller, (ii) irrevocably grants Processor the right to hold the Specified Amount andto remit to Buyer directly (at, before or afterthe time Processor credits or remits to Seller the balance of the Receivables not sold by Seller to Buyer), (iii) acknowledges and agrees that Processor may provide Buyer with copies of Seller's monthly processing statements and history, including without limitation Seller's chargebacks, as well as any other information Buyer deems pertinent, (iv) understands that Buyer does not have any power or authority to control the Processor's actions with respect to the authorization, clearing, settlement and other processing of transactions, (v) acknowledges and agrees that Buyer is notresponsible for the Processor's actions, (vi) acknowledges and agrees that the Processor will be acting on behalf of Buyer, and (vii) agrees to hold Buyer harmless for the Processor's actions or omissions. 3. Reconciliation. The Specified Amount is intended to represent the Purchased Percentage of Seller's Receivables. To ensure that the Specified Amount of Receivables delivered to Buyer accurately reflects the Purchased Percentage of actual Receivables earned by Seller, Seller and Buyer have the right to request "Reconciliation" a at any time during the course of this Agreement as follows: a. Refund/Debit Reconciliation. Seller and Buyer may request a Reconciliation of Seller's actual receipts by Buyer either crediting or debiting the difference to or from the Bank Account so that the amount Buyer debited in the most recent calendar month (the "Reconciliation Month") will equal the Purchased Percentage of Receivables that Seller actually collected in the Reconciliation Month the ("Reconciled Receipts Amount"). Upon reasonable verification that the amount Seller delivered to Buyer in the Reconciliation Month exceeded the Reconciled Receipts Amount, Buyer shall refund the excess to Seller within 5 business days. If the amount Seller delivered in the Reconciliation Month was less than the Reconciled Receipts Amount, then Buyer will debit the difference from the Bank Account within 10 days. b. Adjustment to Periodic Amount Reconciliation. Seller and Buyer may request a Reconciliation adjustment to the Specified Amount on a going-forward basis to more closely reflect Seller's actual Receivables times the Specified Percentage. Upon reasonable verification of Seller's actuai Receivables, Buyer shall adjust the Periodic Amount on a going-forward basis to more closely reflect the Seller's actual Receivables times the Purchased Percentage. After each adjustment made pursuant to this paragraph, the new dollar amount shall be deemed the Specified Amount until any subsequent adjustment. c. Reconciliation Documentation. Seller shall provide any documentation reasonably requested by Buyer to verify Seller's actual Receivables within 5 business days of Buyer's request. Seller also agrees to provide Buyer with view-only access to the Bank Account by use of third-party services such as Decision Logic. If Seller fails to timely provide such documentation and view-only access to the Bank Account, then Seller agrees that the Specified Amount shall be adjusted to the Specified Amount stated above on Page 1 of this Agreement. d. How to Request a Reconciliation. A reconciliation request by Seller must be: (i) in writing; (ii) include a copy of Seller's bank statement for the Reconciliation Month and Seller's reasonable estimate of expected Receivables for the next calendar month; and (iii) be sent to Buyer or emailed to Buyer. A reconciliation request by Buyer may be sent to Seller by regular mail or by e-maii. DS Principal 1 Initials Principal 2 Initials Principal 3 Initials Principal 4 Initials 2 of 14 FILED: ORANGE COUNTY CLERK 01/16/2024 11:48 AM INDEX NO. EF008632-2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/16/2024 FILED: ORANGE COUNTY CLERK 12/12/2023 03:51 PM INDEX NO. EF008632-2023 DocuSign Envelope ID: 8B6258B7-9CFA-446C-87A1-C586B866FEBE NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/12/2023 4. Nonrecourse Sale of Receivables. THIS IS NOT A LOAN. Seller is selling a portion of a revenue stream to Buyer at a discount, not borrowing money from Buyer, therefore, there is no interest rate or payment schedule and no set time period during which the Purchased Amount must be collected by Buyer. Seller's obligation to deliver the Receivables is conditioned upon the continuance of the Seller's Receivables. Buyer is buying the Purchased Amount of Receivables knowing the risks that Seller's Receivables may vary. Buyer assumes these risks based on Seller's representations and the warranties and covenants in this Agreement that are designed to give Buyer a reasonable and fair opportunity to receive the benefit of its bargain. Seller accepts the risk that Receivables may be substantially greater than anticipated, therefore collection of the Purchased Amount could occur over an abbreviated period. By this Agreement, Seller transfers to Buyer full and complete ownership of the Purchased Amount and Seller retains no legal or equitable interest therein. Seller agrees that it will treat the Purchase Price and Purchased Amount in a manner consistent with a sale in its accounting records and tax returns. Seller agrees that Buyer is entitled to audit Seller's accounting records upon reasonable notice in orderto verify compliance. Seller waives any rights of privacy, confidentiality or taxpayer privilege in any such litigation or arbitration in which Seller asserts that this transaction is anything other than a sale of Receivables. 5. Due Diligence. Seller and each Principal signing below authorize Buyer to conduct background, onsite, and financial examinations of Seller, which may include without limitation, address verifications for up to ten (10) years; verification of insurance coverage; verification of good business practices through the appropriate agencies; a search of industry association databases; and a search for bankruptcies, liens or judgments in all jurisdictions where business functions have been conducted. Any onsite examination may include, without limitation, verification that business is conducted as represented by Seller at all sites where it conducts business. The financiai examination may include, withoutlimitation, a review of Seller's current financial statements, its most recent annual reports, tax returns, bank statements, and all other relevantdocumentation. Each Principalsigning below authorizes Buyer, oritsagents,to conduct background and financial examinations of all principals, managers, interested parties, and/or owners of Seller (the "Principals"). Such examinations may include, without limitation, a review of information regarding criminal history for all jurisdictions where the Principals has resided and been employed, address verification for each residences, and employment verification. The examination may also include, without limitation, a review of the consumer credit standing of the Principals signing below including obtaining a consumer report, and a search for bankruptcies and judgments in all jurisdictions where the Principals have resided or been employed. The review may also include a review of past, present, and future personai tax returns. The obligation of Buyer under this Agreement to pay the Purchase Price will not be effective unless and until Buyer has completed its due diligence review of the Seller and each Principal and Buyer has accepted this Agreement by delivering, either in part or in whole, the Purchase Price. 6. Indemnity and Limitation of Remedies. Seller indemnifies and holds the Bank, Processor(s), Buyer, and Buyers third party contractors, officers, managers, owners, affiliates, participants, employees, agents and representatives (the "Indemnitees") harmless from and against all losses, damages, claims, attorneys' liabilities and expenses, including fees incurred by any of the indemnitees and arising out of or resulting from (i) actions taken in reliance upon information or instructions provided to Buyer and/or the Processor(s) and their Member Banks by or on behalf of Seller, (ii) a breach of this agreement by Seller, or (iii) the occurrence of a Termination Event, as hereinafterdefined. In no event will the Indemnitees be liable for any claims asserted against them based on any theory of law or equity for exemplary, punitive, special or consequential damages, each of which is hereby expressly waived by Seller, except as may be required by statute or as otherwise provided herein. However, in the event that any Indemnitee shall be found liable, damages shall not exceed the Purchase Price under any circumstances. 7, Non-disclosure. Seller acknowledges and agrees to consider this Agreement and all things related to this Agreement confidential and private. At no time will Seller disclose, discuss, distribute, or make publicly available, any information or details related to this Agreement or the Indemnitees unless otherwise required by law, to any other party than the Buyer. 8. Modification. Seller shall comply with all the terms of this Agreement, and shall not modify or cancel this Agreement at any time in any manner, without Buyer's prior written consent. Seller shall not modify or cancel the Seller's agreement with its Banks or Processors at any timein any manner, without Buyer's prior written consent. 9. General Covenants. As of the date of this Agreement, and unless expressly stated otherwise, until the Purchased Amount has been delivered in full, or otherwise approved in writing by Buyer: a. Restrictions on Seller. Seller shall abide by and operate within the following restrictions: (i) Seller shall not conduct business under any other name than disclosed herein; (ii) Seller shall not change its business location, state of formation, Bank Account, Bank, or Processor(s); (iii) Sellershall conduct its business in the ordinary course and in substantially the same manner as heretofore conducted; (iv) Seller shall comply with the applicable federal, state, and local law and regulations, applicable permits, authorizations and licenses, and all agreements, leases and other arrangements material to the operation of its business; (v) Seller shall file all federal, state, and local and foreign tax returns or on any assessment received by Seller to the extent that such taxes become due; (vi) Seller shall maintain its legal existence in accordance with applicable law; (vii) Seller shall maintain insurance coverage in such amounts and against such risks as are necessary to protect its business; (viii) Seller shall not voluntarily pledge, or voluntarily grant or permit a lien or security interest in or to the Bank Account, Purchased Amount, Purchased Percentage, or any of its accounts receivable as security for any loan or other obligation, including but not limited to the Receivables, other than in favor of Buyer; (ix) Seller shall not voluntarily sell, dispose, convey or otherwise transfer any interest in its Receivables to any person or entity other than Buyer; (x) Seller shall not, directly or through its owners, enter into any transaction involving the sale of Seller, either by an issuance, sale or transfer of ownership interests in Seller that results in a change in ownership or voting control of Seller, by a sale or transfer of substantially all of the assets of Seller, or otherwise; (xi) Seller shall not discontinue its business or any portion thereof, and then reinstitute the same or a similar business, or portion thereof, either or directly or indirectly through others; (xii) the Seller shall not engage in any fraudulent transfer or fraudulent conveyance, or any transaction otherwise void or voidable under similar laws or principles; (xiii) Seller shall not change or close the Bank Account and if it does so, then all applicable provisions of this Agreement shall apply equally to any bank account owned by Seller at any institution, and to any financial institution at which such subsequent or replacement bank account is held; and (xiv) Seller shall not change or add an additional Processor and if Seller does so, then all applicable provisions of this Agreement shall apply equally to any Processor that $eller contracts with. The violation of any of the foregoing restrictions shall constitute a breach of this Agreement. In the event of any breach of any provision of this Section, Buyer is authorized to debit the Bank Account or any other account for all amounts owed under this Agreement, including but not limited to any amount of the Purchased Amount not yet collected by Buyer, DS Principal 1 Initials Principal 2 Initials Principal 3 Initials Principal 4 Initials 3 of 14 FILED: ORANGE COUNTY CLERK 01/16/2024 11:48 AM INDEX NO. EF008632-2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/16/2024 FILED: ORANGE COUNTY CLERK 12/12/2023 03:51 PM INDEX NO. EF008632-2023 DocuSign Envelope ID: 8B6258B7-9CFA-446C-87A1-C586B866FEBE NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/12/2023 b. Authorization to Debit Funds. Seller authorizes Buyer to debit funds in accordance with this Agreement directly from all business bank accounts owned by Seller, including the Bank Account, and agrees to not revoke or cancel such authorizations. 10. Stacking Prohibited. Seller will not undertake any other financing or sell Receivables to anyone other than Buyer without the prior written consent of Buyer ("Stacking"), and Seller's failure to abide by the terms of this Section will be deemed a Termination Event and Seller and its Principal(s) and Guarantors(s) will immediately be liable for the full undelivered Purchased Amount. 11. General Representations. if a business entity, Seller is a validly existing corporation/limited liability company/limited partnership/ limited liability partnership], in good standing under the laws of the state of its formation, organization, or corporation (as the case may be), the person executing this agreement on behalf of Seller has full power and complete authority to execute this Agreement on behalf of Seller, and this Agreement is valid, binding and enforceable against seller, As of the date of this Agreement, there are no civil or criminal proceedings pending before any court, government agency, arbitration panel, or administrative tribunal or, to5eller's knowledge, threatened against Seller, which may result in any material adverse change in the business, property, or financial condition of Seller. Se]Ier is in compliance with all applicable federal, state and local faws and regulations and possesses and is in compliance with all permits, authorizations and licenses to own, operate and lease its properties and to conduct the business in which it is presently engaged. Seller possesses insurance in such amounts and against such risks as are necessary to protect its business. Seller has filed or caused to be filed all federal, state, local and foreign tax returns which are required to be filed, and has paid or caused to be paid all taxes as shown on such returns or on any assessment received by Seller to the extent that such taxes have become due, and Seller has no knowledge of any material liability (or basis therefore) for any tax to be imposed on Seller or any of its assets or properties for which adequate provision has not been made in its financial statements. No sale of purchased Receivables or the use of any proceeds thereof, will constitute a fraudulent transfer or fraudulent conveyance, or will otherwise be void or voidable under similar laws or principles, the doctrine of equitable subordination, faws regarding preferential transfers, or for any other reason. Seller's Bank Account constitutes the only bank account into which Receivables are deposited. No portion of Seller's Receivables, is subject to any lien, security interest, assignment, option or encumbrance, other than the security interest(s) granted to Buyer. As of the date of this Agreement, there have been no material, adverse changes in Seller's business, nor does Seller have knowledge of any event or occurrence that will have a negative impact on Seller's business. At no time during the six (6) months immediately preceding the date of this Agreement has the Seller considered or decided to close or cease operating its business, in whole or in part, temporarily or permanently and, as of the date of this Agreement, Seller is solvent and is not contemplating insolvency or bankruptcy proceedings and has no intent to close its business in the 60 days immediately following the date of this Agreement. All representations and warranties in this Agreement, and all financial statements and other information delivered to Buyer by or on behalf of Seller, are true and correct at the time provided, and no material fact has been omitted. Seller and the person(s) signing this Agreement on behalf of Seller have full power and authority to enter into and perform the obligations under this Agreement, all of which have been duly authorized by all necessary and proper actions. Seller agrees that the services of Processors are the exclusive means by which Seller can and shall process its credit card transactions. Seller shall maintain business practices that do not endanger its ability to process card transactions. If Seller's action or inaction endanger its ability to process credit card transactions, Buyer may immediately debit from the Bank Account all amounts owed to Buyer under this Agreement. 12, Timing and Method of Funding. Seller and Buyer agree if Buyer elects to purchase the Receivables, Buyer shall purchase the Receivables on a date to be determined by Buyer in its sole discretion (the "Purchase Date"). Seller and Buyer further agree that Buyer shall provide payment through any commercially reasonable method, at Buyer's sole discretion, including, but not limited to, check, federal funds wire, or ACH transfer. "accounts" 13. Acknowledgment of Security Interest and Security Agreement. The Receivables sold by Seller to Buyer pursuant to this Agreement are intangibles" or "payment as those terms are defined in the UCCand such sale shall constitute and shall be construed and treated for all purposes as a true and complete sale, conveying good title to the Receivables free and clear of any liens and encumbrances, from Seller to Buyer. Tothe extent the Receivables are "accounts" intangibles" or "payment then (i) the sale of the Receivables creates a security interest as defined in the UCC; (ii) this Agreement constitutes a agreement" "security under the UCC; and (iii) Buyer has all the rights of a secured party under the UCC with respect to such Receivables. Seller hereby grants to Buyer a security interest in and lien upon all of the Seller's now owned and hereafter acquired accounts and payment intangibles. Seller further agrees that Buyer may notify account debtors, or other persons obligated on the Receivables, on holding the Receivables of Seller's sale of the Receivables and may instruct them to make payment or otherwise render performance to or for the benefit of Buyer. Events:" 14. Termination Events. Except to the extent consented to by Buyer, the following events shall constitute "Termination (i) Seller breaches any of the terms, covenants or provisions of this Agreement; (ii) Seller modifies, revokes, cancels or terminates, or attempts to modify, revoke, cancel or terminate, any instructions or authorizations issued to its Bank or Processor(s) in connection with this Agreement; (iii) Seller changes its current Processor(s), or diverts or directs any credit card transactions to a processor other than its current Processor(s); (iv) Seller establishes an account with its current Processor(s) that is different from the one provided in connection with this Agreement; (v) Seller refers or directs existing orpotentiai customers to other sellers, businesses, or vendors to obtain products or services that the Seller sells in the ordinary course of its business with the objective or result of diverting or reducing Receivables; (vi) Seller refuses to accept credit cards as a means of payment, offers cash or otherincentives to customers to pay by means other than through the use of a credit card, or otherwise discourages a customer from paying with a credit card; (vii) Seller engages in bartering, in kind or similar transactions with customers with the objective or result of reducing Receivables; (viii) any representation, warranty or statement made by Seller shall prove to have been incorrect in any material respect when made or deemed made; (ix) Seller failed to provide correct information or provided misleading information; (x) Seller places a stop payment of Buyers ACH debit or instructs Bank to reject Buyers ACH debit for any reason; (xi) Seller fails to provide Buyer with requested financial documents withinfive (5) business days. Subject to arbitration n Section 32, upon the occurrence of a Termination Event, Buyer shall have, in addition to all other rights and remedies under this Agreement or otherwise, all other rights and remediesprovided under the UCC, In addition, Buyer shall have the right, upon the occurrence of a Termination Event, to recover from the Seller or via ACH debit to the Bank Account or any other bank accounts, the entire uncollected balance of the Purchased Amount, plus any and all other amounts otherwise due and owing under this Agreement, by exercising any and/or all of the following rights: (i) to instruct any Processor to deliver to Buyer, without any prior notice to Seller, any and all of Seller's Receivables as the Specified Amount shall adjust to and equal 100% of Receggibles; (ii) to initiate debit entries to Seller's Bank Account and/or any other bank account that$eller may open or maintain, and/or Principal 1 Initials Principal 2 Initials Principal 3 Initials Principal 4 Initials 4 of 14 FILED: ORANGE COUNTY CLERK 01/16/2024 11:48 AM INDEX NO. EF008632-2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/16/2024 FILED: ORANGE COUNTY CLERK 12/12/2023 03:51 PM INDEX NO. EF008632-2023 DocuSign Envelope ID: 8B6258B7-9CFA-446C-87A1-C586B866FEBE NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/12/2023 (iii) to pursue any and all other remedies at iaw or in equity. Buyer and Seller acknowledge and agree that Seller or Principals filing for bankrupt or going out of business, in and of itself, does not constitute a Termination Event. 15. Waiver. There shall be effected no waiver by failure on the part of Buyer to exercise, or delay in exercising, any right under this Agreement, nor shall any single or partiai exercise of any right under this Agreement preclude any other exercise of any right. The remedies provided hereunder are cumulative and not exclusive of any remedies provided by law or equity. Seller agrees that Buyer is not required to send notice of default or Termination Event to Seller. 16. Binding Effect. This Agreement shall be binding upon Seller and inure to the benefit of Buyer, its successors and assigns, of which Buyer may assign or transfer any rights or interests without giving Seller prior notice. Seller shall have no right to assign its rights, interest or obligations hereunder. For purposes of this Agreement, an assignment includes a change of control in the equity interest and/or controlling interest of Seller. When necessary, this agreement shall be subject to the terms of the Hetar Iska displayed at 45 Broadway, Suite 2450, New York, NY 10006. 17. Governing Law, Jurisdiction, and Venue. This Agreement and all transactions that it contemplates, including all issues conceming the validity of this Agreement, the construction of its terms, and the interpretation, performance and enforcement of the rights and duties of Seller and each Guarantor of Seller's obligations hereunder (collectively, "Seller Parties"), and of Buyer, shall be govemed by and enforced in accordance with the laws of the State of New York, without regard to any applicable principles of conflicts of laws. All issues or claims arising out of, relating to, in connection with, or incident to this Agreement and any transactions it contemplates, whether such claims are based in tort, contract, or arise under statute or in equity, including, but not limited to, claims for declaratory relief, injunctive relief and other similar claims, shall be brought and conducted exclusively in the Supreme Court of the State of New York, or in the United States District Court for the Eastern District of New York,or, solely in Buyer's discretion, in any state or federal court where Seller is located (collectively, the "Exclusive Venues"). Further, each party to this Agreement, for themselves and on behalf of their successors, assigns, heirs, personal representatives, subsidiaries and affiliates, (a) irrevocably consents to personal jurisdiction and the laying of venue in such Exclusive Venues, (b) agrees that the Exclusive Venues are convenient and (c) expressly waives any objections as to personal jurisdiction and the laying of venue in the Exclusive Venues. Should a proceeding be initiated in any other forum or venue, each of the parties to this Agreement irrevocably waives any right to oppose any motion or application made by any other party to transfer such proceeding to an Exclusive Venue. Notwithstanding the foregoing, however, and for avoidance of doubt, the ability to initiate enforcement in any jurisdiction other than in the Supreme Court of the State of New York, or in the United States District Court for the Eastem District of New York, is in Buyer's discretion only, and furthermore, nothing herein shall preclude Buyer from domesticating a judgment in a jurisdiction outside of New York State. The Seller Parties further agree that the mailing by certified or registered mail, return receipt requested, of any process required by any such court will constitute valid and iawful service of process against them, without the necessity for service by any other means provided by statute or rule of court, but without invalidating service performed in accordance with such other provisions. attorneys' 18. Costs and Expenses. Buyer shall be entitled to recover from the Seller all reasonable court costs and fees of twenty-five percent (25%) of the amount then due, associated with and/or resulting from the enforcement of its rights and remedies under this Agreement or at law and Seller agrees that attorneys' such fees shall be deemed reasonable. Any payments under an indemnity obligation shall include all the foregoing costs and expenses, as well as interest thereon at the applicable statutory rate of interest from the date the indemnity obligation is due until the indemnity obligation shall be paid. 19. Survival and Further Assurances. All representations, warranties and covenants herein shall survive the execution and delivery of this Agreement, and shall continue in full force and effect until such time as all obligations under this Agreement have been satisfied. This Agreement contains the entire understanding of the parties and supersedes all prior negotiations, whether oral or written. If any provisions of this Agreement are invalid, illegai or unenforceable, the remaining provisions shall not be affected in any manner. Seller agrees, from time to time, upon Buyer's request to make, execute, acknowledge, and deliver to Buyer, such further and additional instruments, documents, and agreements, and to take such further action as may be required to carry out the intent and purpose of this Agreement. 20. Jury Trial Buyer and Seller Parties hereby waive triai by jury in any court presiding over any action, controversy or preceding arising under this Agreement and/or with respect to the transactions that it contemplates, including all issues concerning the validity of this Agreement, the construction of its terms, and the interpretation, performance and enforcement of the rights and duties of Buyer and the Seller Parties, unless this waiver is prohibited by law. Buyer and Seller Parties hereby acknowledge that this waiver is made irrevocably, unconditionally, knowingly and voluntarily, and that they have been given ample time and opportunity to seek advice of counsei prior to execution of this Agreement. 21. Counterparts and Reproductions. This Agreement may be executedin any number of counterparts, eachof whichshall bedeemed to be an original and all of which together shall constitute one instrument. Facsimile copies and .pdf of signatures to this Agreement shall be deemed to be originals and the parties may rely upon such facsimile and .pdf copies to the same extent as the originals. 22. Ratification and Consent. This Agreement shall not constitute a contract until fully executed by Seller and Buyer has paid the Purchase Price, regardless of the Purchase Price being paid in part or in full, to Seller, In any circumstance under this Agreement where the consent or waiver of Buyer is required or contemplated, such consent shall be made in Buyer's sole and unfettered discretion. 23. ACHAuthorization. Seller hereby authorizes Buyer, or its designated agents, successors and/or assigns, to withdraw any amount now due or hereinafter due under this Agreement, by initiating debit entries to the Bank Account and/or any other bank account that Seller or Principals may open or maintain. In the event of the occurrence of a termination Event or breach or default of Seller's obligations under this Agreement, Selier authorizes debit of the Bank Account, and/or any other bank account that Seller or Principals open or maintain for the full unde[ivered Purchased Amount and any other amounts due under this Agreement or any portion thereof. Further, Seller authorizes and directs the Bank and/or any other bank to accept and to charge any debit entries initiated by Buyer to Seller's Bank Account or other bank accounts, as the case may be. In the event that Buyer withdraws erroneously from Selfer's Bank Account or any other bank account, Seller authorizes Buyer to credit such account for the amount erroneously withdrawn. Se[ler understands that the foregoing ACH authorization requirement is a fundamental condition to induce Buyer to accept this Agreement. Such authorization is intended to be irrevocable. In the event that Seller closes or terminates the Bank Account, or terminates ACH authorization ' as set forth above, Buy , Glesole discretion, may deem such closure, or termination to be a Termination Event. Principal 1 Initials Principal 2 Initials Principal 3 Initials Principal 4 Initials 5 of 14 FILED: ORANGE COUNTY CLERK 01/16/2024 11:48 AM INDEX NO. EF008632-2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/16/2024 FILED: ORANGE COUNTY CLERK 12/12/2023 03:51 PM INDEX NO. EF008632-2023 DocuSign Envelope ID: 8B6258B7-9CFA-446C-87A1-C586B866FEBE NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/12/2023 24. Counterclaim. If Buyer shall commence any proceeding related to this Agreement, Seller will not interpose any counterclaim or set off of whatever nature or description in any such proceeding,