Preview
FILED: MONROE COUNTY CLERK 02/29/2024 03:21 PM INDEX NO. E2024003883
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/29/2024
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3763725
Book Page CIVIL
Return To: No. Pages: 11
JASON ADAM GANG
Instrument: EXHIBIT(S)
Control #: 202402291590
Index #: E2024003883
Date: 02/29/2024
CFG Merchant Solutions LLC Time: 3:58:02 PM
Navy Federal Credit Union
Kant Lose Logistics LLC
Kant Lose Logistics
Barnes, Adrian
Little, Lamorris
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
202402291590 Index #
INDEX : E2024003883
NO. E2024003883
FILED: MONROE
COUNTY
CLERK 02/29/2024
03:21 PM
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/29/2024
PURCHASE AGREEMENT
This Purchase Agreement ("Agreement") is made and entered into as of 5/2/2023 , by and between CFG Merchant Solutions, LLC, a
Delaware limited liability company located at 180 Maiden Lane 15th Floor, New York, NY 10038 ("Buyer"), as Buyer, and KANT LOSE
LOGISTICS LLC DBA KANT LOSE LOGISTICS located at 832 Chastain Avenue, Concord, NC, 28025 (hereafter "Seller"), as
Seller, and each Guarantor identified below (each a “Guarantor”). Capitalized terms not otherwise defined herein, shall have the same
meanings ascribed to them in the Uniform Commercial Code as adopted in the State of New York ("UCC") and the Fee Structure
Addendum as applicable.
SCHEDULE OF PURCHASED RECEIPTS
Purchase Price: $65,000.00
(The dollar amount that Buyer is paying for the Amount Sold of Seller's Future Receipts.)
Amount Sold: $96,785.00
(The dollar value of the Future Receipts being sold.)
Purchased Percentage: 14.98%
(The percentage of Future Receipts Seller agrees to remit to Buyer on a daily basis.)
Daily Amount: $599.00
(The dollar amount eligible to be collected from Seller’s Bank Account each business day that represents the average
monthly sales x Purchased Percentage / average business days in calendar month.)
Facility Fee: $635.00
(Shall be deducted from the initial advance.)
Contract Origination Fee: $99.00
(Shall be deducted from the initial advance.)
Wire Fee: $55.00
(Shall be deducted from the initial advance.)
ACH Program Fee: $845.00
(Shall be deducted from the initial advance.)
Risk Assessment Fee: $365.00
(Shall be deducted from the initial advance.)
PURCHASE AND SALE OF FUTURE RECEIPTS
1. Sale of Future Receipts. Seller agrees to sell to Buyer, in consideration of the Purchase Price as specified in the Schedule of Purchased
Receipts, the Amount Sold, by delivering the Purchased Percentage of the proceeds of each future sale made by Seller (“Future Receipts”),
including amounts due from Seller’s payment card processor (hereafter “Processor”). “Future Receipts” includes all payments made by cash,
check, ACH or other electronic transfer, credit card, debit card, bank card, charge card (each such card shall be referred to herein as a
“Payment Card”) or other form of monetary payment in the ordinary course of Seller’s business. As payment for the Amount Sold, Buyer
will deliver to Seller the Purchase Price, shown above, minus any fees shown above. Seller acknowledges that it has no right to repurchase
the Amount Sold from Buyer.
2. Collection of Future Receipts; Collection Authorization; Collection Frequency. Buyer will be entitled to collect on a daily basis the cash
attributable to the Purchased Percentage of the Future Receipts as specified in the Schedule of Purchased Receipts. Buyer agrees to accept
the remittance of the Daily Amount in one of the following methods: (a) directly from the Processor; (b) by debiting the Seller’s bank
account; or (c) by debiting a deposit account established by Seller that is approved by Buyer. Buyer will notify Seller in advance which
method of remittances Buyer selects from time to time. Seller understands that this authorization is a fundamental condition to induce Buyer
to enter into this Agreement. Buyer and Seller agree that if the collection frequency of the Daily Amount is on a weekly basis, each weekly
collection will be to equal 5 times the Daily Amount (representing a 5 business day week) provided, however, that Buyer may require Seller
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during the course of
this Agreement by rejected ACH attempts.
a. Directly from Processor. If Buyer agrees to accept the remittance of the Daily Amount directly from the Processor, Seller agrees to
enter into an agreement with Processor that authorizes Processor to deliver the Daily Amount directly to Buyer rather than to Seller.
This authorization shall be irrevocable, absolute and unconditional. Seller hereby irrevocably grants Processor the right to hold the
Daily Amount and remit to Buyer directly (at, before or after the time Processor credits or remits to Seller the balance of the Future
Receipts not sold by Seller to Buyer). Seller acknowledges and agrees that Processor may provide Buyer with Seller’s Payment Device
processing history, including without limitation Seller’s chargeback experience and any communications about Seller received by
Processor from a Payment Card processing system. Seller acknowledges 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 and that Buyer is not
responsible for the Processor’s actions. Seller agrees to hold Buyer harmless for the Processor’s actions or omissions. Before 5:00 P.M.
EST of the day following each day that Seller conducts business, Seller shall cause Processor or Processor’s agent to deliver to Buyer,
in a format acceptable to Buyer, a record from Processor reflecting the total gross dollar amount of the preceding day’s debit and
Payment Card transactions processed by Seller, irrespective of whether such amount consists of sales, taxes or other amounts collected
by Seller from its customers (hereafter “Daily Batch Amount”). In the event that Seller is unable to procure Processor’s compliance in
a timely manner or as otherwise required under this section, within two (2) business days’ written notice from Buyer to Seller of the
same, Seller shall, at its sole expense, terminate its relationship with Processor and exclusively engage the services of an alternative
processor that Buyer approves in writing, which Payment Card processor shall thereafter be referred to and included within the
meaning of “Processor” herein.
b. Debiting Seller’s Bank Account. If Buyer agrees to accept the remittance of the Daily Amount by debiting the Seller’s bank account,
Seller irrevocably authorizes Buyer or its designated successor or assignee to withdraw the Daily Amount by initiating a debit via the
Automated Clearing House (ACH) system or any other electronic means, or any other means deemed appropriate to debit entries to
Seller’s account at the business bank that Seller may designate to Buyer, from time to time (hereafter “Bank Account”) or by means of
a split funds or lock box arrangement with a Processor or other third party. Seller agrees to take such action, including the execution of
agreements with third parties, as Buyer may require to obtain the Daily Amount by means of the methods described above. In the event
that Buyer withdraws erroneously from the Bank Account, Seller authorizes Buyer to credit the Bank Account for the amount
erroneously withdrawn. Buyer shall not be required to credit the Bank Account for amounts withdrawn related to Payment Card
transactions which are subsequently reversed for any reason.
c. Debiting an Approved Account. If Buyer agrees to accept the remittance of the Daily Amount by debiting a bank account established
by Seller that is approved by Buyer (“Approved Account”), Seller agrees to complete all necessary forms to establish the Approved
Account. Seller acknowledges and agrees that any funds deposited into the Approved Account by Seller’s Payment Card processor will
remain in the Approved Account until the Daily Amount is withdrawn by Buyer and then the remaining funds, minus any amount
required to maintain the minimum balance for the Approved Account, will be forwarded to Seller’s Bank Account.
3. Seller shall pay all fees and charges allowable under this Agreement together with all of the fees and charges set forth on the Fee Structure
Addendum, attached hereto as Exhibit A and incorporated by reference immediately upon assessment. Buyer is not required to provide notice
to Seller prior to the assessment of any of the fees and charges set forth in this Agreement or any of the fees and charges set forth in the Fee
Structure Addendum.
4. Seller’s Representations, Warranties and Covenants. Seller represents, warrants and covenants the following as of this date, and unless
otherwise stated, at all times during the course of this Agreement:
a. Seller is a business that regularly accepts payments by Payment Cards as a means by which its customers pay Seller for amounts due
whether for goods sold, services rendered or in satisfaction of other amounts owed.
b. Seller shall not take any action to discourage the use of Payment Cards which are settled though Processor or to permit any event to
occur which could have an adverse effect on the use, acceptance or authorization of Payment Cards for the purchase of Seller’s
services and products.
c. Seller shall conduct its business consistent with past practice and shall use the Purchase Price, whether the funding of such Purchase
Price occurs contemporaneous with the execution of this Agreement or anytime time thereafter, solely for business purposes and none
will be used for personal, household or consumer purposes.
d. Any and all Payment Card processing terminals and/or point of sale systems shall be approved by Buyer and programmed to process
only through a Buyer-approved Processor.
e. Seller shall deposit all Future Receipts into the Bank Account and shall not close or change the Bank Account or change the Processor
through which the major Payment Cards are settled to another processor, cease or change its payment instruction or other arrangements
with Processor or to permit any event to occur that could cause a diversion of any of Seller’s Payment Card transactions to another
processor without Buyer’s prior written consent. In the event that Seller changes its Buyer-approved Processor without Buyer’s written
consent, Seller shall, in addition to paying any other damages suffered by Buyer, pay to Buyer the Blocked Account Fee set forth in the
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Fee Structure Addendum as liquidated damages, as it will be impracticable or extremely difficult to determine the resulting damages
suffered by Buyer.
f. Within two (2) business days of its receipt of the notice described in Section 2a. of this Agreement hereinabove, Seller shall at its sole
expense, terminate its relationship with Processor and exclusively engage the services of an alternative Payment Card processor that
Buyer approves in writing and enter into any Seller Payment Card processing agreement as the alternative processor may require.
g. Each fact in any financial record, statement, books and records or other documents Seller has shown to Buyer, either before or after the
execution of this Agreement, was true, accurate and complete at such dates. As of the date of this Agreement, Seller is in good standing
with all financing agreements and is not contemplating bankruptcy.
h. Seller has not entered into any other agreement for the sale of Future Receipts and/or cash advance agreement except as disclosed to
Buyer in writing, shall not enter into any other sale of Future Receipts and/or cash advance agreement, and has not accepted and shall
not accept any other cash advance absent Buyer’s advance written consent.
i. Seller has not entered into any financing or factoring agreement, except as disclosed to Buyer in writing, and Seller shall not enter into
any financing or factoring agreement absent Buyers advance written consent.
j. Seller has not granted a security interest in any of its Future Receipts to any third party except as disclosed to Buyer in writing, and
Seller shall not grant a security interest in any of its Future Receipts absent Buyer’s advance written consent.
k. Seller shall not voluntarily sell, dispose, convey or otherwise transfer its business or assets without the express prior written consent of
Buyer and the assumption of all of Seller’s obligations under this Agreement by the purchaser or transferee of the business or assets
pursuant to documentation reasonably satisfactory to Buyer.
l. Seller shall furnish Buyer with the bank statements for its Bank Account and any and all other accounts to which proceeds from
Seller’s sales are deposited within seven (7) calendar days of any such request by Buyer.
m. Seller shall unconditionally ensure that the cash Seller receives from Processor attributable to the Purchased Percentage based on the
actual collections of the Future Receipts is immediately thereafter available to Buyer for collection via ACH, Split Funds, Lock Box or
any other means deemed appropriate from Seller’s Bank Account. If any attempted ACH debit is rejected because the account is
considered to have Non-Sufficient Funds (hereafter “NSF”) then Buyer will assess the NSF Fee set forth in the Fee Structure
Addendum per each occurrence, to be automatically debited from Seller’s Bank Account.
n. Seller shall not attempt to revoke its ACH authorization to Buyer set forth in this Agreement or otherwise take any measure to
intentionally interfere with Buyer’s ability to collect the cash Seller receives or is otherwise entitled to receive from Processor.
o. The Bank Account is established and used for business purposes only and not for personal, family, or household purposes.
p. Seller shall use the Purchase Price paid by Buyer for Future Receipts solely for business purposes in the ordinary course of Seller’s
business and will not use any of the Purchase Price paid by Buyer for personal, household or consumer purposes.
q. As of the date of this Agreement, there are no pending lawsuits and/or claims against Seller except for those that Seller has disclosed in
writing to Buyer.
r. Seller shall not conduct its businesses under any name other than as disclosed to Buyer, or open a new business with the intent to divert
Seller’s Future Receipts or change any of its places of business, or change the type of business it conducts without Buyer’s prior
written consent; and Seller represents that the information it furnished Buyer in this Agreement and preceding application, including,
without limitation, Seller’s processing statements, is true and accurate in all respects and fairly represents the financial condition, result
of operations and cash flows of Seller at such dates.
s. The person who signed this Agreement on behalf of Seller was authorized by Seller to sign this Agreement on behalf of Seller. Seller
understands that: (i) the foregoing representations, warranties and covenants of Seller are a fundamental condition to induce Buyer to
enter into this Agreement; (ii) Buyer is relying on these representations, warranties and covenants of Seller in entering into this
Agreement; and (iii) Buyer would not make any payment of any Purchase Price to Seller hereunder if any of the foregoing
representations, warranties and covenants were not accurate, including, without limitation, that the proceeds are or were to be used for
anything other than for business purposes of the Seller in the ordinary course of Seller’s business.
5. No Agency Relationship Created. Unless otherwise disclosed, Buyer is an entirely separate and independent entity from the Processor and
the respective agents. Buyer does not have any power or authority or control over Processor’s actions with respect to the processing of
Seller’s Payment Card transactions. Neither Processor or Buyer are the agent for the other, neither is authorized to waive or alter any term or
condition of this Agreement and their representations shall in no way affect Seller’s or Buyer’s rights and obligations set forth herein.
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6. DOC. NO.Use
Exclusive 4 of Approved Processor. Seller understands that services of Processor are the exclusive means
RECEIVED
by which NYSCEF: 02/29/2024
Seller may process its
Payment Card transactions. The Processor must enter into an agreement with Buyer detailing Buyer’s priority rights to the Future Receipts. If
applicable, Buyer hereby approves to act as Processor for Buyer’s benefit.
7. Nonrecourse Sale of Future Receipts; No Right to Repurchase. Seller and Buyer agree that the Purchase Price paid by Buyer in exchange
for the dollar figure listed as the Amount Sold of Future Receipts as set forth in the Schedule of Purchased Receipts is for the purchase and
sale of the Amount Sold of Future Receipts, is a true sale of receipts and is not intended to be, nor shall it be construed as, a loan or an
assignment for security from Buyer to the Seller. Buyer assumes the risk that Future Receipts may be remitted more slowly than Buyer may
have anticipated or projected because Seller’s business has slowed down, and the risk that the full Amount Sold may never be remitted
because Seller’s business went bankrupt or Seller otherwise ceased operations in the ordinary course of business. Seller acknowledges that it
has no right to repurchase the Amount Sold of Future Receipts from Buyer.
8. Seller May Request Changes to the Daily Amount (IMPORTANT PROTECTION FOR SELLER): The initial Daily Amount is
intended to represent the specified Purchased Percentage of Seller’s Future Receipts. Seller may request that Buyer adjust the Daily Amount
to more closely reflect the Seller’s actual Future Receipts times the specified Purchased Percentage. Seller agrees to provide Buyer any
information reasonably requested by Buyer to assist in this reconciliation, including but not limited to Seller’s most recent full month’s
official Bank Account statement, along with a list of subsequent transactions from the end of that statement to-date in any format Buyer
reasonably requests. Upon reasonable verification of such information, Buyer shall adjust the Daily Amount on a going-forward basis to
more closely reflect the Seller’s actual Future Receipts times the specified Purchased Percentage. After each adjustment made pursuant to this
paragraph, the new dollar amount shall be deemed the Daily Amount until any subsequent adjustment.
9. Buyer May Request Changes to the Daily Amount. Buyer may require Seller to provide reasonably requested information to evaluate
whether the Daily Amount should be adjusted to more closely reflect the Seller’s actual Future Receipts times the Purchased Percentage.
Failure to provide such information within seven (7) calendar days will give Buyer the right to adjust the new dollar amount to the initial
Daily Amount. Seller agrees to provide Buyer any information reasonably requested by Buyer to assist in this reconciliation, including but
not limited to Seller’s most recent full month’s official Bank Account statement, along with a list of subsequent transactions from the end of
that statement to-date in any format Buyer reasonably requests. If an adjustment results in an increase to the Daily Amount, Buyer will give
Seller notice prior to any such adjustment.
10. Updated Credit Reports. Seller and each of the Guarantors signing below authorize Buyer, its agents and representatives and any credit
reporting agency engaged by Buyer, to (i) investigate any references given or any other statements or data obtained from or about Seller or
any of its Guarantors for the purpose of this Agreement, (ii) obtain consumer and business credit reports on the Seller and any of its
Guarantors, and (iii) contact personal and business references provided by the Seller in any application, at any time now or for so long as
Seller and/or Guarantors continue to have any obligation owed to Buyer as a consequence of this Agreement or for Buyer’s ability to
determine Seller’s eligibility to enter into any future agreement with Buyer.
11. Breach of Contract. A “Breach” of this Agreement shall include, but not be limited to, any of the following events: (a) Seller intentionally
interferes with Buyer’s right to collect the Purchased Percentage or the Daily Amount; (b) the breach by Seller of any covenants, terms or
conditions contained in this Agreement; (c) any representation or warranty made by the Seller in this Agreement or Seller’s application for
this Agreement is incorrect, false or misleading; and (d) Seller fails to provide bank statements and other reasonably requested financial
information within seven (7) calendar days after request from Buyer.
12. Remedies for Breach of Contract. In the event of a Breach, Buyer shall be entitled to all remedies available at law and equity. The
Purchased Percentage shall equal 100%. In addition to all other remedies, Buyer is entitled under the Agreement and by operation of law or
equity, in the event of Seller’s Breach, the full uncollected Amount Sold plus all fees and charges (including legal fees) due under this
Agreement will become due and payable in full immediately and Buyer may: (a) enforce the provisions of the Personal Guaranty of
Performance; (b) proceed to protect and enforce its rights and remedies by arbitration or lawsuit; or (c) automatically debit Seller’s Bank
Account all money due to Buyer without notice to Seller. Buyer shall have the right, without waiving any of its rights and remedies and
without notice to Seller or any Guarantor, to notify any Payment Card processor of the sale of Future Receipts and redirect the remittance of
daily settlements to an account of Buyer’s choosing in order to settle all obligations due to Buyer under this Agreement. Neither failure on
the part of Buyer to exercise, nor any delay in exercising any right under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any right under this Agreement preclude any other or further exercise of any other right. Subject to arbitration as
provided in Section 34 of this Agreement, the remedies provided hereunder are cumulative and not exclusive of any remedies provided by
law or equity and shall survive termination of this Agreement.
13. Breach of Contract Fee. In the event of a Breach, Buyer shall be entitled to charge and Seller shall pay the Breach of Contract Fee set forth
on the Fee Structure Addendum as liquidated damages to cover the increased costs associated with administering Seller’s Breach.
14. Acknowledgment of Security Interest and Security Agreement. The sale of Future Receipts by Seller to Buyer pursuant to this Agreement
are “accounts”, “general intangibles”, or “payment intangibles” as those terms are defined in the UCC and such sale shall constitute and shall
be construed and treated for all purposes as a true and complete sale, conveying good title to the Future Receipts free and clear of any liens
and encumbrances, from Seller to Buyer. To the extent the Future Receipts are “accounts” or “payment intangibles” then (i) the sale of the
Future Receipts creates a security interest as defined in the UCC, (ii) this Agreement constitutes a “security agreement” under the UCC, and
(iii) Buyer has all the rights of a secured party under the UCC with respect to such Future Receipts. Seller further agrees that, with or without
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NYSCEF DOC. NO.Buyer
a Breach, 4 may notify account debtors, or other persons obligated on the Future Receipts, of Seller’s
RECEIVED
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Future Receipts and
may instruct them to make payment or otherwise render performance to or for the benefit of Buyer.
15. UCC-1 Financing Statements. Seller authorizes Buyer to file one or more UCC-1 forms consistent with the UCC in order to give notice that
the Amount Sold is the sole property of Buyer. The UCC filing may state that such sale is intended to be a sale and not an assignment for
security and may state that the Seller is prohibited from obtaining any financing that impairs the value of the Future Receipts or Buyer’s right
to collect same. Seller authorizes Buyer to debit the Account for all costs incurred by Buyer associated with the filing, amendment or
termination of any UCC filings.
16. Sharing of Information. Seller hereby authorizes Buyer to share information regarding Seller’s performance under this Agreement with
affiliates and unaffiliated third parties.
17. Indemnification. Seller will indemnify and hold harmless Buyer and its officers, directors, principals, partners, members, employees, agents,
representatives and affiliates (each being an “Indemnified Party”) from and against any and all losses, claims, actions, damages and
liabilities, joint or several, to which such Indemnified Party may become subject under any applicable federal or state law, made by any third
party or otherwise (including, without limitation, any customer or client of Seller), relating to or in connection with this Agreement, the
collection of any Future Receipts, the rejection or revocation of merchandise or disputes with respect to any services of every kind and nature
by any customer or client of Seller and the performance by such Indemnified Party under this Agreement, and Seller will reimburse any
Indemnified Party for all costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) as they are incurred in
connection with the investigation of, preparation for or defense of any pending or threatening claim, or any action or proceeding arising
therefrom, whether or not such Indemnified Party is a party thereto. Seller further indemnifies and holds harmless the Processor(s), and their
member banks, and the Buyer, and their respective officers managers, owners, affiliates, employees, agents and representatives (the
“Indemnitees”) from and against any and all losses, damages, claims, liabilities and expenses, including, but not limited to, attorney’s fees
incurred by any of the Indemnitees arising from: (i) actions taken in reliance upon information or instructions provided to the Buyer and/or
the Processor(s) and their member banks by or on behalf of Seller; or (ii) the occurrence of termination of this Agreement. In no case will the
Indemnitees be liable for any claims asserted against them based on any theory of law or equity for lost profits, revenues, or business
opportunities; exemplary, special or consequential damages, each of which is hereby expressly waived by Seller. However, in the event that
any Indemnitee shall be found liable, damages shall not, under any circumstances, exceed the Amount Sold pertaining to the Schedule(s) of
Purchased Receipts for which the underlying claim(s) arise(s). The provisions of this paragraph shall survive the termination of this
Agreement.
18. Governmental Approvals. Seller possesses and is in compliance with all permits, licenses, approvals, consents and other authorizations
necessary to conduct its business. Seller is in compliance with any and all applicable federal, state, and local laws and regulations. Seller
possesses all requisite permits, authorizations and licenses to own, operate and lease its properties and to conduct the business in which it is
presently engaged.
19. Notices.
a. Notices from Buyer to Seller. Buyer may send any notices, disclosures, terms and conditions, other documents, and any future changes
to Seller by regular mail or by e-mail, at Buyer’s option and Seller consents to such electronic delivery. Notices sent by e-mail are
effective when sent. Notices sent by regular mail become effective three (3) calendar days after mailing to Seller’s address set forth in
this Agreement.
b. Notices from Seller to Buyer. Seller may send any notices to Buyer by e-mail only upon the prior written consent of Buyer, which
consent may be withheld or revoked at any time in Buyer’s sole discretion. Otherwise, any notices or other communications from
Seller to Buyer must be delivered by certified mail, return receipt requested, to Buyer’s address at CFG Merchant Solutions, LLC, 201
Route 17 North, Suite 805, Rutherford, New Jersey 07070. Notices sent to Buyer shall become effective only upon receipt by Buyer.
20. Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of Seller, Buyer and their respective successors
and assigns, except that Seller shall not have the right to assign its rights or interests hereunder without the prior written consent of Buyer,
which consent may be withheld at Buyer’s sole discretion. Buyer may assign this Agreement without notice to Seller.
21. Buyer’s Costs of Enforcement, Attorney’s Fees. Buyer shall be entitled to receive or recover from Seller and Seller shall pay to Buyer all
of Buyer’s costs and expenses, including Buyer’s collections costs, third-party collections charges, and Buyer’s reasonable attorney’s fees, in
enforcing any of the terms of this Agreement, administering the transaction and, regardless of whether or not a legal action has been
commenced, including, without limitation, relating to any out of court workout, receivership, assignment for benefit of creditors or
bankruptcy involving the Seller or any guarantor. This provision shall survive termination of this Agreement.
22. Cancellation. The obligation of Buyer under this Agreement will not be effective unless and until Buyer has completed its review of the
Seller and has accepted this Agreement by delivering the Purchase Price, minus any fees listed on the Schedule of Purchased Receipts. Prior
to accepting this Agreement, Buyer may conduct a processing trial to confirm its access to the business bank account designated in the ACH
authorization agreement signed on the date of this Agreement and as it may be amended or replaced from time to time and the ability to
withdraw the Daily Amount. If the processing trial is not completed to the satisfaction of Buyer, Buyer will refund to Seller all funds that
were obtained by Buyer during the processing trial.
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23. DOC. NO.Guaranty
Personal 4 RECEIVED
of Performance. Each Guarantor agrees to irrevocably, absolutely and unconditionally guaranteeNYSCEF: 02/29/2024
to Buyer prompt and
complete performance of the following obligations of Seller (the “Guaranteed Obligations”):
a. Seller’s obligation to furnish Buyer with the bank statements for its Bank Account and any and all other accounts to which proceeds
from Seller’s sales are deposited within seven (7) calendar days of any such request by Buyer.
b. Seller’s obligation to deposit all Future Receipts into the Bank Account and to not close or change the Bank Account or change the
Processor through which the major Payment Cards are settled to another processor, or cease or change its payment instruction or other
arrangements with Processor or to permit any event to occur that could cause a diversion of any of Seller’s Payment Card transactions
to another processor without Buyer’s prior written consent.
c. Seller’s obligation to not conduct its businesses under any name other than as disclosed to Buyer, or open a new business with the
intent to divert Seller’s Future Receipts, or change any of its places of business, or change the type of business it conducts without
Buyer’s prior written consent.
d. Seller’s obligation to not voluntarily sell, dispose, convey or otherwise transfer its business or assets without the express prior written
consent of Buyer and the assumption of all of Seller’s obligations under this Agreement by the purchaser or transferee of the business
or assets pursuant to documentation reasonably satisfactory to Buyer.
e. Seller’s obligation to not enter into any other agreement for the sale of Future Receipts and/or cash advance agreement or financing or
factoring agreement absent Buyer’s advance written consent.
f. Seller’s obligation to provide truthful, accurate, and complete information as required by this Agreement.
24. Guarantor Waivers. Buyer does not have to notify Guarantor of any of the following events and Guarantor will not be released from its
obligations under the Agreement and this Personal Guaranty of Performance if it is not notified of: (i) Seller’s failure to timely perform any
obligation under the Agreement; (ii) any adverse change in Seller’s financial condition or business; (iii) Buyer’s acceptance of the
Agreement; and (iv) any renewal, extension or other modification of the Agreement or Seller’s other obligations to Buyer. In addition, Buyer
may take any of the following actions without releasing Guarantor from any of its obligations under the Agreement and this Personal
Guaranty of Performance, (i) renew, extend or otherwise modify the Agreement or Seller’s other obligations to Buyer; and (ii) release Seller
from its obligations to Buyer. Guarantor shall not seek reimbursement from Seller or any other guarantor for any amounts paid by it under
the Agreement or this Personal Guaranty of Performance. Guarantor permanently waives and shall not seek to exercise any of the following
rights that it may have against Seller, or any other guarantor, for any amounts paid by it, or acts performed by it, under the Agreement or this
Personal Guaranty of Performance: (i) subrogation; (ii) reimbursement; (iii) performance; (iv) indemnification; or (v) contribution. In the
event that Buyer must return any amount paid by Seller or any other guarantor of the Guaranteed Obligations because that person has
become subject to a proceeding under the United States Bankruptcy Code or any similar law, Guarantor’s obligations under the Agreement
and this Personal Guaranty of Performance shall include that amount.
25. Guarantor Acknowledgement. Each Guarantor acknowledges that Guarantor understands the seriousness of the provisions of the
Agreement, including the Jury Waiver, Class Action Waiver and Arbitration sections, and has had a full opportunity to consult with counsel
their choice; and have consulted with counsel or have decided not to avail himself / herself / themselves of that opportunity.
26. Modifications Amendments; Entire and Final Agreement. This Agreement, together with Exhibit A and the documents provided in
contemplation hereof (including, without limitation, Guarantees given in support hereof), contains the entire and final agreement and
understanding between the parties to this Agreement and the documents given in contemplation hereof, and supersedes and replaces all prior
negotiations and proposed agreements, written or oral. Each of the parties hereto acknowledges that no other party or any agent of any other
party has made any promise, representation or warranty whatsoever, express or implied, written or oral, not contained in this Agreement and
each of the parties acknowledges that he, she or it has not executed this Agreement in reliance on any promise, representation or warranty not
contained in this Agreement. This Agreement may not be waived, altered, modified, revoked or rescinded except by a writing signed by one
of Buyer’s executive officers. No attempt at oral modification or rescission of this Agreement will be binding upon the parties.
27. Severability. In case any one or more of the provisions contained in this Agreement is held to be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or
impaired thereby.
28. Governing Law; Venue; Service of Process. This Agreement and all acts and transactions hereunder and thereunder and all rights and
obligations of Buyer and Seller shall be governed, construed and interpreted in accordance with the internal laws of the State of New York.
Seller: (i) agrees that for all actions or proceedings relating directly or indirectly hereto, the exclusive venue shall be any court sitting in the
State of New York, at Buyer’s sole option; (ii) consents to the jurisdiction and venue of any such court and consents to service of process in
any such action or proceeding by personal delivery or any other method permitted by law; and (iii) waives any and all rights Seller may have
to object to the jurisdiction of any such court, or to transfer or change the venue of any such action or proceeding.
29. Headings Solely For Convenience. Headings to sections of this Agreement are solely for convenience, are not to be deemed part of the
Agreement, and are not to be used to interpret or construe any provision of the Agreement.
HC# 4872-3810-6165
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COUNTY
CLERK 02/29/2024
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30. DOC. NO. 4 Facsimile; Scans. Facsimile signatures, or any other electronic means reflecting the party’s
Counterparts; RECEIVED NYSCEF:
signature hereto, shall be02/29/2024
Preview
FILED: MONROE COUNTY CLERK 02/29/2024 03:21 PM INDEX NO. E2024003883 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/29/2024 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3763725 Book Page CIVIL Return To: No. Pages: 11 JASON ADAM GANG Instrument: EXHIBIT(S) Control #: 202402291590 Index #: E2024003883 Date: 02/29/2024 CFG Merchant Solutions LLC Time: 3:58:02 PM Navy Federal Credit Union Kant Lose Logistics LLC Kant Lose Logistics Barnes, Adrian Little, Lamorris Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 202402291590 Index # INDEX : E2024003883 NO. E2024003883 FILED: MONROE COUNTY CLERK 02/29/2024 03:21 PM NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/29/2024 PURCHASE AGREEMENT This Purchase Agreement ("Agreement") is made and entered into as of 5/2/2023 , by and between CFG Merchant Solutions, LLC, a Delaware limited liability company located at 180 Maiden Lane 15th Floor, New York, NY 10038 ("Buyer"), as Buyer, and KANT LOSE LOGISTICS LLC DBA KANT LOSE LOGISTICS located at 832 Chastain Avenue, Concord, NC, 28025 (hereafter "Seller"), as Seller, and each Guarantor identified below (each a “Guarantor”). Capitalized terms not otherwise defined herein, shall have the same meanings ascribed to them in the Uniform Commercial Code as adopted in the State of New York ("UCC") and the Fee Structure Addendum as applicable. SCHEDULE OF PURCHASED RECEIPTS Purchase Price: $65,000.00 (The dollar amount that Buyer is paying for the Amount Sold of Seller's Future Receipts.) Amount Sold: $96,785.00 (The dollar value of the Future Receipts being sold.) Purchased Percentage: 14.98% (The percentage of Future Receipts Seller agrees to remit to Buyer on a daily basis.) Daily Amount: $599.00 (The dollar amount eligible to be collected from Seller’s Bank Account each business day that represents the average monthly sales x Purchased Percentage / average business days in calendar month.) Facility Fee: $635.00 (Shall be deducted from the initial advance.) Contract Origination Fee: $99.00 (Shall be deducted from the initial advance.) Wire Fee: $55.00 (Shall be deducted from the initial advance.) ACH Program Fee: $845.00 (Shall be deducted from the initial advance.) Risk Assessment Fee: $365.00 (Shall be deducted from the initial advance.) PURCHASE AND SALE OF FUTURE RECEIPTS 1. Sale of Future Receipts. Seller agrees to sell to Buyer, in consideration of the Purchase Price as specified in the Schedule of Purchased Receipts, the Amount Sold, by delivering the Purchased Percentage of the proceeds of each future sale made by Seller (“Future Receipts”), including amounts due from Seller’s payment card processor (hereafter “Processor”). “Future Receipts” includes all payments made by cash, check, ACH or other electronic transfer, credit card, debit card, bank card, charge card (each such card shall be referred to herein as a “Payment Card”) or other form of monetary payment in the ordinary course of Seller’s business. As payment for the Amount Sold, Buyer will deliver to Seller the Purchase Price, shown above, minus any fees shown above. Seller acknowledges that it has no right to repurchase the Amount Sold from Buyer. 2. Collection of Future Receipts; Collection Authorization; Collection Frequency. Buyer will be entitled to collect on a daily basis the cash attributable to the Purchased Percentage of the Future Receipts as specified in the Schedule of Purchased Receipts. Buyer agrees to accept the remittance of the Daily Amount in one of the following methods: (a) directly from the Processor; (b) by debiting the Seller’s bank account; or (c) by debiting a deposit account established by Seller that is approved by Buyer. Buyer will notify Seller in advance which method of remittances Buyer selects from time to time. Seller understands that this authorization is a fundamental condition to induce Buyer to enter into this Agreement. Buyer and Seller agree that if the collection frequency of the Daily Amount is on a weekly basis, each weekly collection will be to equal 5 times the Daily Amount (representing a 5 business day week) provided, however, that Buyer may require Seller HC# 4872-3810-6165 CFG Merchant Solutions, LLC Page | 1 Seller's Initials Seller's Initials 202402291590 IndexNO. INDEX #: E2024003883 E2024003883 FILED: MONROE COUNTY CLERK 02/29/2024 03:21 PM NYSCEF DOC. NO.to 4daily collection frequency if Seller’s weekly delivery of Future Receipts is interrupted three to change RECEIVED or more timesNYSCEF: 02/29/2024 during the course of this Agreement by rejected ACH attempts. a. Directly from Processor. If Buyer agrees to accept the remittance of the Daily Amount directly from the Processor, Seller agrees to enter into an agreement with Processor that authorizes Processor to deliver the Daily Amount directly to Buyer rather than to Seller. This authorization shall be irrevocable, absolute and unconditional. Seller hereby irrevocably grants Processor the right to hold the Daily Amount and remit to Buyer directly (at, before or after the time Processor credits or remits to Seller the balance of the Future Receipts not sold by Seller to Buyer). Seller acknowledges and agrees that Processor may provide Buyer with Seller’s Payment Device processing history, including without limitation Seller’s chargeback experience and any communications about Seller received by Processor from a Payment Card processing system. Seller acknowledges 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 and that Buyer is not responsible for the Processor’s actions. Seller agrees to hold Buyer harmless for the Processor’s actions or omissions. Before 5:00 P.M. EST of the day following each day that Seller conducts business, Seller shall cause Processor or Processor’s agent to deliver to Buyer, in a format acceptable to Buyer, a record from Processor reflecting the total gross dollar amount of the preceding day’s debit and Payment Card transactions processed by Seller, irrespective of whether such amount consists of sales, taxes or other amounts collected by Seller from its customers (hereafter “Daily Batch Amount”). In the event that Seller is unable to procure Processor’s compliance in a timely manner or as otherwise required under this section, within two (2) business days’ written notice from Buyer to Seller of the same, Seller shall, at its sole expense, terminate its relationship with Processor and exclusively engage the services of an alternative processor that Buyer approves in writing, which Payment Card processor shall thereafter be referred to and included within the meaning of “Processor” herein. b. Debiting Seller’s Bank Account. If Buyer agrees to accept the remittance of the Daily Amount by debiting the Seller’s bank account, Seller irrevocably authorizes Buyer or its designated successor or assignee to withdraw the Daily Amount by initiating a debit via the Automated Clearing House (ACH) system or any other electronic means, or any other means deemed appropriate to debit entries to Seller’s account at the business bank that Seller may designate to Buyer, from time to time (hereafter “Bank Account”) or by means of a split funds or lock box arrangement with a Processor or other third party. Seller agrees to take such action, including the execution of agreements with third parties, as Buyer may require to obtain the Daily Amount by means of the methods described above. In the event that Buyer withdraws erroneously from the Bank Account, Seller authorizes Buyer to credit the Bank Account for the amount erroneously withdrawn. Buyer shall not be required to credit the Bank Account for amounts withdrawn related to Payment Card transactions which are subsequently reversed for any reason. c. Debiting an Approved Account. If Buyer agrees to accept the remittance of the Daily Amount by debiting a bank account established by Seller that is approved by Buyer (“Approved Account”), Seller agrees to complete all necessary forms to establish the Approved Account. Seller acknowledges and agrees that any funds deposited into the Approved Account by Seller’s Payment Card processor will remain in the Approved Account until the Daily Amount is withdrawn by Buyer and then the remaining funds, minus any amount required to maintain the minimum balance for the Approved Account, will be forwarded to Seller’s Bank Account. 3. Seller shall pay all fees and charges allowable under this Agreement together with all of the fees and charges set forth on the Fee Structure Addendum, attached hereto as Exhibit A and incorporated by reference immediately upon assessment. Buyer is not required to provide notice to Seller prior to the assessment of any of the fees and charges set forth in this Agreement or any of the fees and charges set forth in the Fee Structure Addendum. 4. Seller’s Representations, Warranties and Covenants. Seller represents, warrants and covenants the following as of this date, and unless otherwise stated, at all times during the course of this Agreement: a. Seller is a business that regularly accepts payments by Payment Cards as a means by which its customers pay Seller for amounts due whether for goods sold, services rendered or in satisfaction of other amounts owed. b. Seller shall not take any action to discourage the use of Payment Cards which are settled though Processor or to permit any event to occur which could have an adverse effect on the use, acceptance or authorization of Payment Cards for the purchase of Seller’s services and products. c. Seller shall conduct its business consistent with past practice and shall use the Purchase Price, whether the funding of such Purchase Price occurs contemporaneous with the execution of this Agreement or anytime time thereafter, solely for business purposes and none will be used for personal, household or consumer purposes. d. Any and all Payment Card processing terminals and/or point of sale systems shall be approved by Buyer and programmed to process only through a Buyer-approved Processor. e. Seller shall deposit all Future Receipts into the Bank Account and shall not close or change the Bank Account or change the Processor through which the major Payment Cards are settled to another processor, cease or change its payment instruction or other arrangements with Processor or to permit any event to occur that could cause a diversion of any of Seller’s Payment Card transactions to another processor without Buyer’s prior written consent. In the event that Seller changes its Buyer-approved Processor without Buyer’s written consent, Seller shall, in addition to paying any other damages suffered by Buyer, pay to Buyer the Blocked Account Fee set forth in the HC# 4872-3810-6165 CFG Merchant Solutions, LLC Page | 2 Seller's Initials Seller's Initials 202402291590 IndexNO. INDEX #: E2024003883 E2024003883 FILED: MONROE COUNTY CLERK 02/29/2024 03:21 PM NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/29/2024 Fee Structure Addendum as liquidated damages, as it will be impracticable or extremely difficult to determine the resulting damages suffered by Buyer. f. Within two (2) business days of its receipt of the notice described in Section 2a. of this Agreement hereinabove, Seller shall at its sole expense, terminate its relationship with Processor and exclusively engage the services of an alternative Payment Card processor that Buyer approves in writing and enter into any Seller Payment Card processing agreement as the alternative processor may require. g. Each fact in any financial record, statement, books and records or other documents Seller has shown to Buyer, either before or after the execution of this Agreement, was true, accurate and complete at such dates. As of the date of this Agreement, Seller is in good standing with all financing agreements and is not contemplating bankruptcy. h. Seller has not entered into any other agreement for the sale of Future Receipts and/or cash advance agreement except as disclosed to Buyer in writing, shall not enter into any other sale of Future Receipts and/or cash advance agreement, and has not accepted and shall not accept any other cash advance absent Buyer’s advance written consent. i. Seller has not entered into any financing or factoring agreement, except as disclosed to Buyer in writing, and Seller shall not enter into any financing or factoring agreement absent Buyers advance written consent. j. Seller has not granted a security interest in any of its Future Receipts to any third party except as disclosed to Buyer in writing, and Seller shall not grant a security interest in any of its Future Receipts absent Buyer’s advance written consent. k. Seller shall not voluntarily sell, dispose, convey or otherwise transfer its business or assets without the express prior written consent of Buyer and the assumption of all of Seller’s obligations under this Agreement by the purchaser or transferee of the business or assets pursuant to documentation reasonably satisfactory to Buyer. l. Seller shall furnish Buyer with the bank statements for its Bank Account and any and all other accounts to which proceeds from Seller’s sales are deposited within seven (7) calendar days of any such request by Buyer. m. Seller shall unconditionally ensure that the cash Seller receives from Processor attributable to the Purchased Percentage based on the actual collections of the Future Receipts is immediately thereafter available to Buyer for collection via ACH, Split Funds, Lock Box or any other means deemed appropriate from Seller’s Bank Account. If any attempted ACH debit is rejected because the account is considered to have Non-Sufficient Funds (hereafter “NSF”) then Buyer will assess the NSF Fee set forth in the Fee Structure Addendum per each occurrence, to be automatically debited from Seller’s Bank Account. n. Seller shall not attempt to revoke its ACH authorization to Buyer set forth in this Agreement or otherwise take any measure to intentionally interfere with Buyer’s ability to collect the cash Seller receives or is otherwise entitled to receive from Processor. o. The Bank Account is established and used for business purposes only and not for personal, family, or household purposes. p. Seller shall use the Purchase Price paid by Buyer for Future Receipts solely for business purposes in the ordinary course of Seller’s business and will not use any of the Purchase Price paid by Buyer for personal, household or consumer purposes. q. As of the date of this Agreement, there are no pending lawsuits and/or claims against Seller except for those that Seller has disclosed in writing to Buyer. r. Seller shall not conduct its businesses under any name other than as disclosed to Buyer, or open a new business with the intent to divert Seller’s Future Receipts or change any of its places of business, or change the type of business it conducts without Buyer’s prior written consent; and Seller represents that the information it furnished Buyer in this Agreement and preceding application, including, without limitation, Seller’s processing statements, is true and accurate in all respects and fairly represents the financial condition, result of operations and cash flows of Seller at such dates. s. The person who signed this Agreement on behalf of Seller was authorized by Seller to sign this Agreement on behalf of Seller. Seller understands that: (i) the foregoing representations, warranties and covenants of Seller are a fundamental condition to induce Buyer to enter into this Agreement; (ii) Buyer is relying on these representations, warranties and covenants of Seller in entering into this Agreement; and (iii) Buyer would not make any payment of any Purchase Price to Seller hereunder if any of the foregoing representations, warranties and covenants were not accurate, including, without limitation, that the proceeds are or were to be used for anything other than for business purposes of the Seller in the ordinary course of Seller’s business. 5. No Agency Relationship Created. Unless otherwise disclosed, Buyer is an entirely separate and independent entity from the Processor and the respective agents. Buyer does not have any power or authority or control over Processor’s actions with respect to the processing of Seller’s Payment Card transactions. Neither Processor or Buyer are the agent for the other, neither is authorized to waive or alter any term or condition of this Agreement and their representations shall in no way affect Seller’s or Buyer’s rights and obligations set forth herein. HC# 4872-3810-6165 CFG Merchant Solutions, LLC Page | 3 Seller's Initials Seller's Initials 202402291590 IndexNO. INDEX #: E2024003883 E2024003883 FILED: MONROE COUNTY CLERK 02/29/2024 03:21 PM NYSCEF 6. DOC. NO.Use Exclusive 4 of Approved Processor. Seller understands that services of Processor are the exclusive means RECEIVED by which NYSCEF: 02/29/2024 Seller may process its Payment Card transactions. The Processor must enter into an agreement with Buyer detailing Buyer’s priority rights to the Future Receipts. If applicable, Buyer hereby approves to act as Processor for Buyer’s benefit. 7. Nonrecourse Sale of Future Receipts; No Right to Repurchase. Seller and Buyer agree that the Purchase Price paid by Buyer in exchange for the dollar figure listed as the Amount Sold of Future Receipts as set forth in the Schedule of Purchased Receipts is for the purchase and sale of the Amount Sold of Future Receipts, is a true sale of receipts and is not intended to be, nor shall it be construed as, a loan or an assignment for security from Buyer to the Seller. Buyer assumes the risk that Future Receipts may be remitted more slowly than Buyer may have anticipated or projected because Seller’s business has slowed down, and the risk that the full Amount Sold may never be remitted because Seller’s business went bankrupt or Seller otherwise ceased operations in the ordinary course of business. Seller acknowledges that it has no right to repurchase the Amount Sold of Future Receipts from Buyer. 8. Seller May Request Changes to the Daily Amount (IMPORTANT PROTECTION FOR SELLER): The initial Daily Amount is intended to represent the specified Purchased Percentage of Seller’s Future Receipts. Seller may request that Buyer adjust the Daily Amount to more closely reflect the Seller’s actual Future Receipts times the specified Purchased Percentage. Seller agrees to provide Buyer any information reasonably requested by Buyer to assist in this reconciliation, including but not limited to Seller’s most recent full month’s official Bank Account statement, along with a list of subsequent transactions from the end of that statement to-date in any format Buyer reasonably requests. Upon reasonable verification of such information, Buyer shall adjust the Daily Amount on a going-forward basis to more closely reflect the Seller’s actual Future Receipts times the specified Purchased Percentage. After each adjustment made pursuant to this paragraph, the new dollar amount shall be deemed the Daily Amount until any subsequent adjustment. 9. Buyer May Request Changes to the Daily Amount. Buyer may require Seller to provide reasonably requested information to evaluate whether the Daily Amount should be adjusted to more closely reflect the Seller’s actual Future Receipts times the Purchased Percentage. Failure to provide such information within seven (7) calendar days will give Buyer the right to adjust the new dollar amount to the initial Daily Amount. Seller agrees to provide Buyer any information reasonably requested by Buyer to assist in this reconciliation, including but not limited to Seller’s most recent full month’s official Bank Account statement, along with a list of subsequent transactions from the end of that statement to-date in any format Buyer reasonably requests. If an adjustment results in an increase to the Daily Amount, Buyer will give Seller notice prior to any such adjustment. 10. Updated Credit Reports. Seller and each of the Guarantors signing below authorize Buyer, its agents and representatives and any credit reporting agency engaged by Buyer, to (i) investigate any references given or any other statements or data obtained from or about Seller or any of its Guarantors for the purpose of this Agreement, (ii) obtain consumer and business credit reports on the Seller and any of its Guarantors, and (iii) contact personal and business references provided by the Seller in any application, at any time now or for so long as Seller and/or Guarantors continue to have any obligation owed to Buyer as a consequence of this Agreement or for Buyer’s ability to determine Seller’s eligibility to enter into any future agreement with Buyer. 11. Breach of Contract. A “Breach” of this Agreement shall include, but not be limited to, any of the following events: (a) Seller intentionally interferes with Buyer’s right to collect the Purchased Percentage or the Daily Amount; (b) the breach by Seller of any covenants, terms or conditions contained in this Agreement; (c) any representation or warranty made by the Seller in this Agreement or Seller’s application for this Agreement is incorrect, false or misleading; and (d) Seller fails to provide bank statements and other reasonably requested financial information within seven (7) calendar days after request from Buyer. 12. Remedies for Breach of Contract. In the event of a Breach, Buyer shall be entitled to all remedies available at law and equity. The Purchased Percentage shall equal 100%. In addition to all other remedies, Buyer is entitled under the Agreement and by operation of law or equity, in the event of Seller’s Breach, the full uncollected Amount Sold plus all fees and charges (including legal fees) due under this Agreement will become due and payable in full immediately and Buyer may: (a) enforce the provisions of the Personal Guaranty of Performance; (b) proceed to protect and enforce its rights and remedies by arbitration or lawsuit; or (c) automatically debit Seller’s Bank Account all money due to Buyer without notice to Seller. Buyer shall have the right, without waiving any of its rights and remedies and without notice to Seller or any Guarantor, to notify any Payment Card processor of the sale of Future Receipts and redirect the remittance of daily settlements to an account of Buyer’s choosing in order to settle all obligations due to Buyer under this Agreement. Neither failure on the part of Buyer to exercise, nor any delay in exercising any right under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right under this Agreement preclude any other or further exercise of any other right. Subject to arbitration as provided in Section 34 of this Agreement, the remedies provided hereunder are cumulative and not exclusive of any remedies provided by law or equity and shall survive termination of this Agreement. 13. Breach of Contract Fee. In the event of a Breach, Buyer shall be entitled to charge and Seller shall pay the Breach of Contract Fee set forth on the Fee Structure Addendum as liquidated damages to cover the increased costs associated with administering Seller’s Breach. 14. Acknowledgment of Security Interest and Security Agreement. The sale of Future Receipts by Seller to Buyer pursuant to this Agreement are “accounts”, “general intangibles”, or “payment intangibles” as those terms are defined in the UCC and such sale shall constitute and shall be construed and treated for all purposes as a true and complete sale, conveying good title to the Future Receipts free and clear of any liens and encumbrances, from Seller to Buyer. To the extent the Future Receipts are “accounts” or “payment intangibles” then (i) the sale of the Future Receipts creates a security interest as defined in the UCC, (ii) this Agreement constitutes a “security agreement” under the UCC, and (iii) Buyer has all the rights of a secured party under the UCC with respect to such Future Receipts. Seller further agrees that, with or without HC# 4872-3810-6165 CFG Merchant Solutions, LLC Page | 4 Seller's Initials Seller's Initials 202402291590 IndexNO. INDEX #: E2024003883 E2024003883 FILED: MONROE COUNTY CLERK 02/29/2024 03:21 PM NYSCEF DOC. NO.Buyer a Breach, 4 may notify account debtors, or other persons obligated on the Future Receipts, of Seller’s RECEIVED sale of theNYSCEF: 02/29/2024 Future Receipts and may instruct them to make payment or otherwise render performance to or for the benefit of Buyer. 15. UCC-1 Financing Statements. Seller authorizes Buyer to file one or more UCC-1 forms consistent with the UCC in order to give notice that the Amount Sold is the sole property of Buyer. The UCC filing may state that such sale is intended to be a sale and not an assignment for security and may state that the Seller is prohibited from obtaining any financing that impairs the value of the Future Receipts or Buyer’s right to collect same. Seller authorizes Buyer to debit the Account for all costs incurred by Buyer associated with the filing, amendment or termination of any UCC filings. 16. Sharing of Information. Seller hereby authorizes Buyer to share information regarding Seller’s performance under this Agreement with affiliates and unaffiliated third parties. 17. Indemnification. Seller will indemnify and hold harmless Buyer and its officers, directors, principals, partners, members, employees, agents, representatives and affiliates (each being an “Indemnified Party”) from and against any and all losses, claims, actions, damages and liabilities, joint or several, to which such Indemnified Party may become subject under any applicable federal or state law, made by any third party or otherwise (including, without limitation, any customer or client of Seller), relating to or in connection with this Agreement, the collection of any Future Receipts, the rejection or revocation of merchandise or disputes with respect to any services of every kind and nature by any customer or client of Seller and the performance by such Indemnified Party under this Agreement, and Seller will reimburse any Indemnified Party for all costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) as they are incurred in connection with the investigation of, preparation for or defense of any pending or threatening claim, or any action or proceeding arising therefrom, whether or not such Indemnified Party is a party thereto. Seller further indemnifies and holds harmless the Processor(s), and their member banks, and the Buyer, and their respective officers managers, owners, affiliates, employees, agents and representatives (the “Indemnitees”) from and against any and all losses, damages, claims, liabilities and expenses, including, but not limited to, attorney’s fees incurred by any of the Indemnitees arising from: (i) actions taken in reliance upon information or instructions provided to the Buyer and/or the Processor(s) and their member banks by or on behalf of Seller; or (ii) the occurrence of termination of this Agreement. In no case will the Indemnitees be liable for any claims asserted against them based on any theory of law or equity for lost profits, revenues, or business opportunities; exemplary, special or consequential damages, each of which is hereby expressly waived by Seller. However, in the event that any Indemnitee shall be found liable, damages shall not, under any circumstances, exceed the Amount Sold pertaining to the Schedule(s) of Purchased Receipts for which the underlying claim(s) arise(s). The provisions of this paragraph shall survive the termination of this Agreement. 18. Governmental Approvals. Seller possesses and is in compliance with all permits, licenses, approvals, consents and other authorizations necessary to conduct its business. Seller is in compliance with any and all applicable federal, state, and local laws and regulations. Seller possesses all requisite permits, authorizations and licenses to own, operate and lease its properties and to conduct the business in which it is presently engaged. 19. Notices. a. Notices from Buyer to Seller. Buyer may send any notices, disclosures, terms and conditions, other documents, and any future changes to Seller by regular mail or by e-mail, at Buyer’s option and Seller consents to such electronic delivery. Notices sent by e-mail are effective when sent. Notices sent by regular mail become effective three (3) calendar days after mailing to Seller’s address set forth in this Agreement. b. Notices from Seller to Buyer. Seller may send any notices to Buyer by e-mail only upon the prior written consent of Buyer, which consent may be withheld or revoked at any time in Buyer’s sole discretion. Otherwise, any notices or other communications from Seller to Buyer must be delivered by certified mail, return receipt requested, to Buyer’s address at CFG Merchant Solutions, LLC, 201 Route 17 North, Suite 805, Rutherford, New Jersey 07070. Notices sent to Buyer shall become effective only upon receipt by Buyer. 20. Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of Seller, Buyer and their respective successors and assigns, except that Seller shall not have the right to assign its rights or interests hereunder without the prior written consent of Buyer, which consent may be withheld at Buyer’s sole discretion. Buyer may assign this Agreement without notice to Seller. 21. Buyer’s Costs of Enforcement, Attorney’s Fees. Buyer shall be entitled to receive or recover from Seller and Seller shall pay to Buyer all of Buyer’s costs and expenses, including Buyer’s collections costs, third-party collections charges, and Buyer’s reasonable attorney’s fees, in enforcing any of the terms of this Agreement, administering the transaction and, regardless of whether or not a legal action has been commenced, including, without limitation, relating to any out of court workout, receivership, assignment for benefit of creditors or bankruptcy involving the Seller or any guarantor. This provision shall survive termination of this Agreement. 22. Cancellation. The obligation of Buyer under this Agreement will not be effective unless and until Buyer has completed its review of the Seller and has accepted this Agreement by delivering the Purchase Price, minus any fees listed on the Schedule of Purchased Receipts. Prior to accepting this Agreement, Buyer may conduct a processing trial to confirm its access to the business bank account designated in the ACH authorization agreement signed on the date of this Agreement and as it may be amended or replaced from time to time and the ability to withdraw the Daily Amount. If the processing trial is not completed to the satisfaction of Buyer, Buyer will refund to Seller all funds that were obtained by Buyer during the processing trial. HC# 4872-3810-6165 CFG Merchant Solutions, LLC Page | 5 Seller's Initials Seller's Initials 202402291590 IndexNO. INDEX #: E2024003883 E2024003883 FILED: MONROE COUNTY CLERK 02/29/2024 03:21 PM NYSCEF 23. DOC. NO.Guaranty Personal 4 RECEIVED of Performance. Each Guarantor agrees to irrevocably, absolutely and unconditionally guaranteeNYSCEF: 02/29/2024 to Buyer prompt and complete performance of the following obligations of Seller (the “Guaranteed Obligations”): a. Seller’s obligation to furnish Buyer with the bank statements for its Bank Account and any and all other accounts to which proceeds from Seller’s sales are deposited within seven (7) calendar days of any such request by Buyer. b. Seller’s obligation to deposit all Future Receipts into the Bank Account and to not close or change the Bank Account or change the Processor through which the major Payment Cards are settled to another processor, or cease or change its payment instruction or other arrangements with Processor or to permit any event to occur that could cause a diversion of any of Seller’s Payment Card transactions to another processor without Buyer’s prior written consent. c. Seller’s obligation to not conduct its businesses under any name other than as disclosed to Buyer, or open a new business with the intent to divert Seller’s Future Receipts, or change any of its places of business, or change the type of business it conducts without Buyer’s prior written consent. d. Seller’s obligation to not voluntarily sell, dispose, convey or otherwise transfer its business or assets without the express prior written consent of Buyer and the assumption of all of Seller’s obligations under this Agreement by the purchaser or transferee of the business or assets pursuant to documentation reasonably satisfactory to Buyer. e. Seller’s obligation to not enter into any other agreement for the sale of Future Receipts and/or cash advance agreement or financing or factoring agreement absent Buyer’s advance written consent. f. Seller’s obligation to provide truthful, accurate, and complete information as required by this Agreement. 24. Guarantor Waivers. Buyer does not have to notify Guarantor of any of the following events and Guarantor will not be released from its obligations under the Agreement and this Personal Guaranty of Performance if it is not notified of: (i) Seller’s failure to timely perform any obligation under the Agreement; (ii) any adverse change in Seller’s financial condition or business; (iii) Buyer’s acceptance of the Agreement; and (iv) any renewal, extension or other modification of the Agreement or Seller’s other obligations to Buyer. In addition, Buyer may take any of the following actions without releasing Guarantor from any of its obligations under the Agreement and this Personal Guaranty of Performance, (i) renew, extend or otherwise modify the Agreement or Seller’s other obligations to Buyer; and (ii) release Seller from its obligations to Buyer. Guarantor shall not seek reimbursement from Seller or any other guarantor for any amounts paid by it under the Agreement or this Personal Guaranty of Performance. Guarantor permanently waives and shall not seek to exercise any of the following rights that it may have against Seller, or any other guarantor, for any amounts paid by it, or acts performed by it, under the Agreement or this Personal Guaranty of Performance: (i) subrogation; (ii) reimbursement; (iii) performance; (iv) indemnification; or (v) contribution. In the event that Buyer must return any amount paid by Seller or any other guarantor of the Guaranteed Obligations because that person has become subject to a proceeding under the United States Bankruptcy Code or any similar law, Guarantor’s obligations under the Agreement and this Personal Guaranty of Performance shall include that amount. 25. Guarantor Acknowledgement. Each Guarantor acknowledges that Guarantor understands the seriousness of the provisions of the Agreement, including the Jury Waiver, Class Action Waiver and Arbitration sections, and has had a full opportunity to consult with counsel their choice; and have consulted with counsel or have decided not to avail himself / herself / themselves of that opportunity. 26. Modifications Amendments; Entire and Final Agreement. This Agreement, together with Exhibit A and the documents provided in contemplation hereof (including, without limitation, Guarantees given in support hereof), contains the entire and final agreement and understanding between the parties to this Agreement and the documents given in contemplation hereof, and supersedes and replaces all prior negotiations and proposed agreements, written or oral. Each of the parties hereto acknowledges that no other party or any agent of any other party has made any promise, representation or warranty whatsoever, express or implied, written or oral, not contained in this Agreement and each of the parties acknowledges that he, she or it has not executed this Agreement in reliance on any promise, representation or warranty not contained in this Agreement. This Agreement may not be waived, altered, modified, revoked or rescinded except by a writing signed by one of Buyer’s executive officers. No attempt at oral modification or rescission of this Agreement will be binding upon the parties. 27. Severability. In case any one or more of the provisions contained in this Agreement is held to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby. 28. Governing Law; Venue; Service of Process. This Agreement and all acts and transactions hereunder and thereunder and all rights and obligations of Buyer and Seller shall be governed, construed and interpreted in accordance with the internal laws of the State of New York. Seller: (i) agrees that for all actions or proceedings relating directly or indirectly hereto, the exclusive venue shall be any court sitting in the State of New York, at Buyer’s sole option; (ii) consents to the jurisdiction and venue of any such court and consents to service of process in any such action or proceeding by personal delivery or any other method permitted by law; and (iii) waives any and all rights Seller may have to object to the jurisdiction of any such court, or to transfer or change the venue of any such action or proceeding. 29. Headings Solely For Convenience. Headings to sections of this Agreement are solely for convenience, are not to be deemed part of the Agreement, and are not to be used to interpret or construe any provision of the Agreement. HC# 4872-3810-6165 CFG Merchant Solutions, LLC Page | 6 Seller's Initials Seller's Initials 202402291590 IndexNO. INDEX #: E2024003883 E2024003883 FILED: MONROE COUNTY CLERK 02/29/2024 03:21 PM NYSCEF 30. DOC. NO. 4 Facsimile; Scans. Facsimile signatures, or any other electronic means reflecting the party’s Counterparts; RECEIVED NYSCEF: signature hereto, shall be02/29/2024