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FILED: KINGS COUNTY CLERK 03/26/2024 01:20 PM INDEX NO. 508582/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/26/2024
EXHIBIT A
FILED: KINGS COUNTY CLERK 03/26/2024 01:20 PM INDEX NO. 508582/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/26/2024
VALIDATION FORM
1014 S. Westlake Blvd., Suite 14-227, Westlake Village, CA 91361 Please email completed app to: applications@selectfunding.com
(866) 264-7007
COMPANY INFORMATION
Legal Company Name: Right Angle Rebar LLC Legal Entity Type: LLC
DBA: Right Angle Rebar Tax ID # (EIN):
Company Phone: State of Incorporation: NY
Physical Address: 3724 Polar Street Business Inception Date: September 01, 2019
City / State: Brooklyn NY Zip Code: 11224 Annual Business Revenue: $457,317.00
OWNER INFORMATION (1) OWNER INFORMATION (2)
Full Legal Name: Edwin Alvarez Full Legal Name:
Home Address: 3724 Polar Street Home Address:
City / State: Brooklyn NY City / State:
Zip Code: 11224 Zip Code:
Home Phone: Home Phone:
Cell Phone: Cell Phone:
% Ownership: 100% % Ownership:
Social Security No: Social Security No:
Date of Birth: Date of Birth:
E-mail Address: E-mail Address:
SIGN HERE SIGN HERE
X X
6/1/2022
IMPORTANT AUTHORIZATIONS - READ BEFORE SIGNING:
By my/our signature on this Application, either as a principal of the applicant or a personal guarantor of applicant’s obligations, I/we hereby certify that
all information contained in this Application and all attachments hereto, are true and complete to the best of my/our knowledge, and are made for the
purpose of obtaining credit. I/we authorize Select Funding, or its designee (and any assignee or potential assignee thereof), to verify any of the
information from whatever source it deems appropriate, which authorization shall extend to obtaining and review of my/our personal consumer credit
profile from a national credit bureau in considering this Application and subsequently for the purpose of update, renewal or extension of such credit or
additional credit and for reviewing or collecting the resulting account. If this Application for business credit is denied, you have the right to a written
statement of the specific reasons for denial. To obtain the statement, contact Select Funding within 60 days from the date you are notified of our
decision. We will send you a written statement of the reasons for the denial within 30 days of receiving your request for the statement. NOTICE: The
Federal Equal Opportunity Act prohibits creditors from discriminating against applicants on the basis of race, color, religion, national origin, sex, marital
status, or age (provided the applicant has the capacity to enter into a binding contract); or because all or a part of the applicant’s income derives from
any public assistance program or because the applicant has in good faith exercised any right under the Consumer Credit Protection Act. The federal
agency that administers compliance with this law concerning this creditor is the Federal Trade Commission, Equal Credit Opportunity, Washington,
D.C. 20580. IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT: To help the government fight the funding of
terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each
person who applies for a loan. What this means for you: When you apply for a loan, we will ask for your name, address, date of birth, and other
information that allows us to identify you. We may also ask to see your driver's license or other identifying documents. A Copy or Facsimile of this
Agreement with Signature shall be Considered to be an Original.
ID: 6220252 Signed: 2022-06-01T14:51:07-05:00
FILED: KINGS COUNTY CLERK 03/26/2024 01:20 PM INDEX NO. 508582/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/26/2024
WEEKLY PAYMENT ADDENDUM
C2782117
This is an addendum to the “Merchant Agreement” dated 06/01/2022.
Select Funding, LLC will be debiting the Specified Daily Amount of $71.09 on a weekly basis, with an ACH debit
of $355.43 initiating one-week post funding until the Purchased Amount has been received in full. Select Funding, LLC
has the rights and authority to revert to a daily ACH if the terms and conditions of the Merchant Agreement are breached.
Except as provided in this addendum, all terms and conditions of the Merchant agreement C2782117 and the Supplement
shall remain in full force and effect.
Name: BRIAN SPRATT Name: Edwin Alvarez
SELECT FUNDING, LLC Right Angle Rebar LLC
Right Angle Rebar
Title: CEO Title: Member
Date: 6/1/2022 Date: 6/1/2022
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ID: 6220252 Signed: 2022-06-01T14:51:07-05:00
FILED: KINGS COUNTY CLERK 03/26/2024 01:20 PM INDEX NO. 508582/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/26/2024
MERCHANT AGREEMENT
C2782117
MERCHANT INFORMATION
Merchant’s Legal Name: Right Angle Rebar LLC DBA: Right Angle Rebar
Phone Number:
Cell Phone:
Type of Entity: LLC
Physical Address: 3724 Polar Street , Brooklyn, NY 11224
Mailing Address: 3724 Polar Street , Brooklyn, NY 11224
This Merchant Agreement (this “Agreement”) dated 06/01/2022 between the merchant listed below (together with its
successors and/or assigns, the “Merchant”) and the Purchaser defined below in Section 4.14 (each, a “Party” and,
collectively, the “Parties”).
ARTICLE I: PURCHASE AND SALE OF FUTURE RECEIVABLES
Section 1.1 Sale and Purchase. In consideration of the funds remitted by Purchaser to Merchant and specified below
(“Purchase Price”), Merchant hereby irrevocably sells, assigns and transfers to Purchaser (making Purchaser the absolute
owner), the percentage indicated below (the “Specified Percentage”) of the Merchant’s future accounts, contract rights
and other obligations arising from or relating to the payment of monies from Merchant’s customers’ and/or other third-
party payers to Merchant (the “Future Receivables” defined as all payments made by cash, check, electronic transfer,
credit card transactions or other form of monetary payment to Merchant in the ordinary course of the Merchant’s
business), for the payment of Merchant’s sale of goods or services until the amount specified below (the “Purchased
Amount”) has been delivered by Merchant to Purchaser.
Section 1.2 Payment of Specified Percentage. The Merchant hereby agrees to deposit all Future Receivables into a bank
account approved by the Purchaser (the “Account”) and the Merchant hereby authorizes Purchaser and its agents to
initiate Automated Clearinghouse (“ACH”) payments equal to the Purchased Percentage of all deposits made into the
Account each Weekday (as defined herein) until the Purchaser has received an amount equal to the Purchased Amount.
Merchant will provide Purchaser with all required access codes, and periodic bank statements by the 18th of each calendar
month during which this Agreement is in effect. Merchant understands that it is responsible for ensuring that the Specified
Percentage to be debited by Purchaser remains in the Account and will be held responsible for any fees incurred by
Purchaser resulting from a rejected ACH attempt or an Event of Default (as defined herein). Purchaser is not responsible
for any overdrafts or rejected transactions that may result from Purchaser ACH debiting the specified amounts under the
terms of this Agreement. Notwithstanding anything to the contrary in this Agreement or any other agreement between
Purchaser and Merchant, upon any breach set forth in Section 3.1(b) of this Agreement or the occurrence of an Event of
Default under Section 3.1(a) of this Agreement, the Specified Percentage shall equal 100%. A list of all fees applicable
under this Agreement is contained in Appendix B.
Purchase Price: $10496.00 Specified Percentage: 4% Purchased Amount: $15639.04
Section 1.3 Fees. The following fees apply to the Purchaser’s purchase of the Specified Percentage under this Agreement:
(a) Processing Fee: The Purchase Price indicated above will be remitted to Merchant net of a processing fee equal
to $262.40 which is 2.5% of the Purchased Price, such fee to cover Purchaser’s diligence of Merchant and related
expenses, including the filing of UCC financing statement(s) regarding the Future Receivables as authorized
under this Agreement.
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(b) Prepayment: Merchant shall have the right to prepay the purchase agreement within the first 100 days from
disbursement of Purchase Price at a 7% discount to the balance of the Purchased Amount. The balance of the
Purchased Amount will be calculated once accounting for already collected and posted receivables. Merchant
shall have no right to prepay this Purchase Agreement if; the advance has previously been modified, there has
been a forbearance in payments, or there has been a breach of the Merchant Agreement.
Section 1.4 Weekdays, Bank Holidays. “Weekday” is defined as Monday through Friday, inclusive (each, a
“Weekday”). Purchaser will debit the Account only on Weekdays on which the bank holding Merchant’s Account is open
and able to process ACH transactions. On the Weekday immediately following any Weekday or other day(s) on which the
bank holding the Account was not open or was not able to process ACH transactions for reasons other than an insufficient
Account balance, Purchaser will debit the Account for an amount equal to the sum of (a) the Specified Percentage to be
delivered to Purchaser on that Weekday, plus (b) the Specified Percentage to be delivered to Purchaser on the preceding
Weekday(s) when the bank holding the Account was not open or could not process ACH transactions.
Section 1.5 Authorization; No Misrepresentation. To the extent set forth herein, each of the Parties is obligated upon its
execution of the Agreement to all terms of this Agreement. Merchant represents that it has the authority to enter into this
Agreement. Each of the below-signed Merchant and owners (the “Owners”) represents that he or she is authorized to sign
this Agreement for Merchant, legally binding Merchant to satisfy its obligations hereunder and that the information
provided herein and in all of Purchaser’s documents, forms and recorded interviews is true, accurate and complete in all
respects. If any such information provided by Merchant is false or misleading, Merchant shall be deemed in material
breach of all agreements between Merchant and Purchaser, and Purchaser shall be entitled to all remedies available under
law. Purchaser may produce a monthly statement reflecting the delivery of the Specified Percentage from Merchant to
Purchaser. An investigative or consumer report may be requested in connection with this Agreement. Merchant and each
of the below-signed Owners authorize Purchaser, its agents and representatives and any third party engaged by Purchaser,
to (i) investigate any references given or any other statements or data obtained from or about Merchant or any of its
Owners for the purpose of this Agreement, and (ii) obtain a credit report at any time now or for so long as Merchant
and/or Owner(s) continue to have any obligation to deliver receivables to Purchaser as a consequence of this Agreement
or for Purchaser’s ability to determine Merchant’s eligibility to enter into any future agreement with Purchaser. ANY
MISREPRESENTATION MADE BY MERCHANT OR OWNER IN CONNECTION WITH THIS
AGREEMENT MAY CONSTITUTE A SEPARATE CAUSE OF ACTION FOR FRAUD OR INTENTIONAL
MISREPRESENTATION.
ARTICLE II: TERMS AND CONDITIONS
Section 2.1 Use of the Account
(a) Merchant shall execute an agreement acceptable to Purchaser with a bank acceptable to Purchaser to obtain
electronic fund transfer services. Merchant shall provide Purchaser and/or its authorized agent with all of the
information, authorizations and passwords necessary for verifying Merchant’s receivables, receipts and deposits
into the Account. Merchant shall authorize Purchaser and/or its agent to deduct the amounts owed to Purchaser
for the Future Receivables as specified herein from settlement amounts which would otherwise be due to
Merchant and to pay such amounts to Purchaser by permitting Purchaser to withdraw the Specified Percentage by
ACH debiting of the Account. To effectuate the foregoing, Merchant shall execute and deliver to Purchaser an
authorization for ACH payments on Purchaser’s standard form (the “ACH Authorization”), set forth as Appendix
B to this Agreement. The ACH Authorization shall be irrevocable without the express prior written consent of
Purchaser.
(b) Merchant shall exclusively use the Account for the deposit of all Future Receivables and shall not close the
Account of or cease to use the Account as the sole account into which to deposit all Future Receivables prior to
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the time that Purchaser has received the entire Purchased Amount. The Account may not be closed without the
prior written consent of Purchaser.
(c) Merchant shall not (i) breach or default under the deposit agreement with the bank maintaining the Account; (ii)
change or permit the change of the Bank or add an additional bank to hold deposits of Merchant, in each case,
without the express prior written consent of Purchaser; (iii) change the Account name, password or other access
information relating to accounts from which ACH payments are to be made without giving Purchaser the notice
required under Section 3.4(d) herein; or (iv) divert any cash, checks, electronic payments in any manner or to any
person, location or account other than the Account.
(d) Purchaser and Merchant understand that the bank and/or any ACH processor may charge a fee or commission for
processing electronic checks, ACH payments and other receipts, and that the bank’s and/or any ACH processor’s
fees or commission shall not reduce any amounts due to Purchaser hereunder.
Section 2.2 Term of Agreement. This Agreement shall be in full force and effect until the Purchased Amount has been
delivered to the Purchaser pursuant to the terms of this Agreement. Because the transaction evidenced by this Agreement
is not a loan, there is no repayment term.
Section 2.3 Future Purchases. Nothing in this Agreement shall be construed to (a) obligate Purchaser to or (b) prevent
Purchaser from making any future purchases from Merchant.
Section 2.4 Financial Condition. Merchant and Owner(s) authorize Purchaser and its agents to investigate their financial
responsibility and history, and will provide to Purchaser any bank or financial statements, tax returns, as Purchaser deems
necessary prior to or at any time during the Term of this Agreement. Merchant hereby authorizes Purchaser to contact any
current or prior bank of Merchant in order to obtain whatever information it may require regarding Merchant’s
transactions with any such bank. Purchaser is authorized to update such information and financial profiles from time to
time as it deems appropriate. In addition to the foregoing, Merchant authorizes Purchaser to contact any current or prior
bank of Merchant in order to confirm that Merchant is exclusively using the Account approved by Merchant in
accordance with this Agreement.
Section 2.5 Transactional History. Merchant hereby authorizes its bank to provide Purchaser from time to time with
Merchant’s banking or processing history to determine qualification or continuation in the program contemplated under
this Agreement.
Section 2.6 No Liability. In no event will Purchaser be liable for any claims asserted by Merchant under any legal theory
for lost profits, lost revenues, lost business opportunities, exemplary, punitive, special, incidental, indirect or
consequential damages, each of which is waived by Merchant and Owner(s).
Section 2.7 Sale of Future Receivables.
(a) Merchant and Purchaser agree that the Purchase Price under this Agreement is in exchange for the Specified
Percentage and that such Purchase Price is not intended to be, nor shall it be construed as a loan from Purchaser to
Merchant. Merchant agrees that the Purchase Price paid in exchange for the Future Receivables pursuant to this
Agreement equals the fair market value of such Future Receivables. Purchaser has purchased and shall own the
Specified Percentage described in this Agreement. As the Specified Percentage is derived solely from Merchant’s
sale of products and services and the payment therefore by Merchant’s customers, Purchaser’s receipt of the
Specified Percentage shall be directly conditioned upon Merchant’s sale of products and services to Merchant’s
customers.
(b) The Purchaser does not charge any interest, finance charges, points, late fees or similar fees (except as permitted
by applicable law in connection with civil judgments). The Purchaser is purchasing the Future Receivables at a
discount and, for the avoidance of doubt, the Merchant and the Purchaser agree that the Purchaser shall be the sole
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and exclusive owner of the Specified Percentage, and that the Specified Percentage shall not be part of the
Merchant’s estate in a bankruptcy of the Merchant.
(c) Notwithstanding the Parties’ express intent to the contrary set forth in Section 2.7(a) herein, in the event that the
Purchaser’s purchase of the Specified Percentage is finally determined by a court of competent jurisdiction to
constitute a loan from the Purchaser to the Merchant, the Purchaser shall return to the Merchant any interest
deemed to have been received by the Purchaser on such loan in excess of the maximum amount of interest
permitted by applicable law to be received by the Purchaser.
(d) Merchant agrees and acknowledges that it is not a debtor of Purchaser during the Term of this Agreement;
accordingly, any attempts to modify Merchant’s obligations to deliver to the Purchaser the Specified Percentage
shall be invalid and void.
(e) Merchant agrees that it will treat the Purchase Price and Purchased Amount in a manner consistent with a sale in
its accounting records and on its tax returns. Merchant agrees that Purchaser is entitled to audit Merchant’s
accounting records and tax returns, upon reasonable notice, in order to verify that that Merchant is complying
with this Section 2.7(e), including during any litigation or arbitration between Purchaser and Merchant and/or
Owner(s). Merchant waives any rights of privacy, confidentiality or taxpayer privilege in any such litigation or
arbitration in which Merchant asserts that the Purchase Price paid by the Purchaser in exchange for the Purchased
Amount of Future Receivables is anything other than a sale of the Purchased Amount.
Section 2.8 Power of Attorney. Merchant irrevocably appoints Purchaser as its agent and attorney-in-fact with full
authority to take any action or execute any instrument or document to settle all obligations due to Purchaser from any
third party, or any breach by Merchant set forth in Section 3.1(b) or the occurrence of an Event of Default as defined
under Section 3.1(a) herein, from Merchant, under this Agreement, including without limitation (i) to obtain and adjust
insurance; (ii) to collect monies due or to become due under or in respect of any of the Collateral (as defined in the
Security Agreement and Guaranty attached as Appendix A to this Agreement (the “Security Agreement”)); (iii) to receive,
endorse and collect any checks, notes, drafts, instruments, documents or chattel paper in connection with clause (i) or
clause (ii) above; (iv) to sign Merchant’s name on any invoice, bill of lading or assignment directing customers or account
debtors to make payment directly to Purchaser; and (v) to file any claims or take any action or institute any proceeding
which Purchaser may deem necessary for the collection of any of the unpaid Purchased Amount from the Collateral, or
otherwise to enforce its rights with respect to payment of the Purchased Amount.
Section 2.9 Working Capital Funding. Merchant shall not enter into any arrangement, agreement or commitment that
relates to or involves the Future Receivables, whether in the form of a purchase of, a loan against, collateral against or the
sale or purchase of credits against Future Receivables or future check sales with any party other than Purchaser.
Section 2.10 Unencumbered Receipts. Merchant has good, complete and marketable title to all Future Receivables, free
and clear of any and all liabilities, liens, claims, changes, restrictions, conditions, options, rights, mortgages, security
interests, equities, pledges and encumbrances of any kind or nature whatsoever or any other rights or interests that may be
inconsistent with the transactions contemplated with, or adverse to the interests of Purchaser.
Section 2.11 Business Purpose: Compliance with Laws. Merchant is a valid business in good standing under the laws of
the jurisdictions in which it is organized and/or operates. Merchant represents that it is entering into this Agreement
for business purposes and not as a consumer for personal, family or household purposes. The Merchant is in
compliance with all statutes, rules, regulations, orders or restrictions of all applicable governmental authorities. All
federal, state, local and foreign tax returns and tax reports, and all taxes due and payable arising therefrom required to be
filed by the Merchant have been or will be filed and paid, on a timely basis (including any extensions). All such returns
and reports are and will be true, correct and complete. The Merchant has no material liabilities and, to the best of its
knowledge, knows of no material contingent liabilities, except current liabilities incurred in the ordinary course of
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business. The Future Receivables are currently and, in the future, will be generated in the ordinary course of the conduct
of commerce or business.
Section 2.12 Change of Name. The Merchant will not conduct its businesses under any name other than as disclosed to
the bank approved by the Purchaser without providing notice as required under Section 3.4(c) herein.
Section 2.13 Conflicts with Other Contracts. The execution and delivery of the consummation of the transactions
contemplated hereunder and compliance with the provisions of this Agreement, does not and will not conflict with or
result in any violation default, and does not or will not entitle any person or entity to receipt of notice or to a right of
consent, or give rise to a right of termination, cancellation or acceleration of any obligation or to loss of a benefit, or to
any increased, additional, accelerated or guaranteed rights or entitlement of any person or entity, or result in the creation
of any claim on the properties or assets of the Merchant.
Section 2.14 UCC Financing Statements. Merchant hereby authorizes Purchaser at its sole option to file one or more
financing statements under the UCC prior to or at any time after purchasing the Specified Percentage in order to evidence
and perfect the security interest granted to the Purchaser herein.
Section 2.15 Chargebacks. In the event any Future Receivables become the subject of a charge back, returned check or
other negation of the future sale prior to Purchaser receiving value for the Future Receivables in the form of a cash
transfer from the Account to the Purchaser, then the Purchased Amount will be increased by the amount so charged back,
returned or negated and shall be paid to Purchaser from subsequent Future Receivables.
ARTICLE III: EVENTS OF DEFAULT. PROTECTIONS AGAINST DEFAULT AND REMEDIES
Section 3.1 Events of Default, Protections against Default
(a) The occurrence of any of the following events shall constitute an “Event of Default” hereunder: (i) Merchant shall
violate any term or covenant in this Agreement; (ii) any representation or warranty by Merchant in this
Agreement shall prove to have been incorrect, false or misleading in any material respect when made; (iii) the
sending of notice of termination by Owner; (iv) Merchant shall transport, move, interrupt, suspend, dissolve or
terminate its business; (v) Merchant shall transfer or sell all or substantially all of its assets; (vi) Merchant shall
make or send notice of any intended bulk sale or transfer by Merchant; (vii) Merchant shall use multiple
depository accounts without the prior written consent of Purchaser; (viii) Merchant shall change its Account
without the prior written consent of Purchaser; (ix) Merchant shall perform any act that reduces the value of any
Collateral granted under this Agreement; or (x) Merchant shall default under any of the terms, covenants and
conditions of any other agreement with Purchaser.
(b) The “Protections,” as defined in Section 3.1(c) herein, may be invoked by Purchaser immediately and without
notice to Merchant in the event of any of the following violations by Merchant: (i) Merchant permits any event to
occur that could have an adverse effect on the use, acceptance or authorization of checks for the purchase of
Merchant’s services and products; (ii) Merchant changes its arrangements with any third party in any way that is
adverse to Purchaser; (iii) Merchant permits any event to occur that could cause diversion of any Future
Receivables to any person, location or account other than the Account; (iv) Merchant interrupts the operation of
its business (for reasons other than adverse weather, natural disasters or acts of God), transfers, moves, sells,
disposes, transfers or otherwise conveys its business or assets without (A) the express prior written consent of
Purchaser, and (B) the written agreement of any purchaser or transferee to the assumption of all of Merchant’s
obligations under this Agreement pursuant to documentation satisfactory to Purchaser; (v) Merchant blocks or
otherwise compromises Purchaser’s access to the Account; or (vi) Merchant takes any action, fails to take any
action, or offers any incentive—economic or otherwise—the result of which will be to induce any customer or
customers to pay for Merchant’s services with any means other than those set forth in this Agreement.
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(c) The following protections shall be available to Purchaser in addition to any other remedies available to Purchaser
at law, in equity or otherwise pursuant to this Agreement (collectively, the “Protections”): (i) the full uncollected
Purchased Amount plus all fees due under this Agreement and the Security Agreement attached hereto as Exhibit
B may become due and payable in full immediately; (ii) Purchaser may enforce the provisions of the Personal
Guarantee of Performance (as defined in the Security Agreement) against the Owner; (iii) Merchant may, upon
execution of this Agreement, deliver to Purchaser an executed confession of judgment in favor of Purchaser in the
amount of the Purchased Amount stated in this Agreement. Upon any breach set forth in Section 3.1(b), Purchaser
may enter that confession of judgment as a judgment with any petition brought or pending against Merchant.
Merchant further warrants that it does not anticipate filing any bankruptcy petition and it does not anticipate that
an involuntary petition will be filed against it.
Section 3.2 Remedies. In case any Event of Default occurs and is not waived pursuant to Section 4.4 hereof, Purchaser
may proceed to protect and enforce its rights or remedies by suit in equity or by action at law, or both, whether for the
specific performance of any covenant, agreement or other provision contained herein, or to enforce the discharge of
Merchant’s obligations hereunder or any other legal or equitable right or remedy. All rights, powers and remedies of
Purchaser in connection with this Agreement may be exercised at any time by Purchaser after the occurrence of an Event
of Default, are cumulative and not exclusive and shall be in addition to any other rights, powers or remedies provided by
law or equity.
Section 3.3 Costs. Merchant shall pay to Purchaser all reasonable costs associated with (a) a breach by Merchant of the
covenants in this Agreement and the enforcement thereof, and (b) the enforcement of Purchaser’s remedies set forth in
Section 3.2 above, including but not limited to court costs and/or attorneys’ fees.
Section 3.4 Required Notifications.
(a) Merchant is required to give Purchaser written notice within 24 hours of any filing under Title 11 of the
United States Code.
(b) Merchant is required to give Purchaser seven (7) days’ written notice prior to the closing of any sale of all
or substantially all of the Merchant’s assets or stock.
(c) Merchant will not change any of its places of business, or change its legal name, entity type or state of
formation, unless it has provided the Purchaser with not less than thirty (30) days’ prior notice thereof and
has provided Purchaser with any documents, agreements and information reasonably requested by the
Purchaser with respect thereto.
(d) Merchant will not change the Account name, password or other access information relating to accounts
from which ACH or electronic check payments are to be made without giving Purchaser at least ten (10)
business days’ prior notice of such change.
ARTICLE IV: MISCELLANEOUS
Section 4.1 Modifications: Agreements. No modification, amendment, waiver or consent of any provision of this
Agreement shall be effective unless the same shall be in writing and signed by Purchaser.
Section 4.2 Assignment. Purchaser may assign, transfer or sell its rights to receive the Purchased Amount or delegate its
duties hereunder, either in whole or in part.
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Section 4.3 Notices. All notices, requests, consent, demands and other communications hereunder shall be delivered by
certified mail, return receipt requested, to the respective Parties to this Agreement at the following addresses and shall
become effective only upon receipt:
If to Purchaser:
c/o Select Funding, LLC
1014 S. Westlake Blvd.
Suite 14-227
Westlake Village, CA 91361
adjustments@selectfunding.com
If to Merchant:
Edwin Alvarez
Right Angle Rebar LLC
3724 Polar Street
Brooklyn, NY 11224
Section 4.4 Waiver Remedies. No failure on the part of Purchaser to exercise, and no 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 thereof or the exercise of any other right. The remedies provided hereunder are
cumulative and not exclusive of any remedies provided by law or equity.
Section 4.5 Binding Effect: Governing Law, Venue, and Jurisdiction. This Agreement shall be binding upon and inure
to the benefit of Merchant, Purchaser and their respective successors and assigns, except that Merchant shall not have the
right to assign its rights hereunder or any interest herein without the prior written consent of Purchaser which consent may
be withheld in Purchaser’s sole discretion. Purchaser reserves the rights to assign this Agreement with or without prior
written notice to Merchant. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York, without regards to any applicable principals of conflicts of law. Any suit, action or proceeding arising
hereunder, or the interpretation, performance or breach hereof, shall, if Purchaser so elects, be instituted in any court
sitting in New York, (the “Acceptable Forums”). Merchant agrees that the Acceptable Forums are convenient to it and
submits to the jurisdiction of the Acceptable Forums and waives any and all objections to jurisdiction or venue. Should
such proceeding be initiated in any other forum, Merchant waives any right to oppose any motion or application made by
Purchaser to transfer such proceeding to an Acceptable Forum.
Section 4.6 Indemnification. In addition to all rights and remedies available to the Parties hereto at law or in equity, the
Merchant shall indemnify the Purchaser, its affiliates and their respective stockholders, officers, directors, employees,
agents, successors and assigns, (collectively, the “Indemnified Persons”), and save and hold each Indemnified Person
harmless from and against and pay on behalf of or reimburse each such Indemnified Person, as and when incurred, for any
and all loss, liability, demand, claim, action, cause of action, cost, damage, deficiency, tax, penalty, fine or expense,
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whether or not arising out of any claims by or on behalf of such Indemnified Person or any third party, including interest,
penalties, reasonable attorneys’ fees and expenses and all amounts paid in investigation, defense or settlement of any of
the foregoing (including all reasonable attorneys’ fees and expenses incurred in connection with the enforcement of this
Section), that any such Indemnified Person may suffer, sustain, incur or become subject to, as a result of, in connection
with, relating or incidental to or by virtue of: (i) any misrepresentation or breach of warranty of the Merchant under this
Agreement or any ancillary documents; or (ii) any nonfulfillment, default or breach of any covenant or agreement of the
Merchant in this Agreement or any ancillary documents.
Section 4.7 Survival of Representation. All representations, warranties and covenants herein shall survive the execution
and delivery of this Agreement and shall continue in full force until all obligations under this Agreement shall have been
satisfied in full and this Agreement shall have terminated.
Section 4.8 Severability. In case any of the provisions in this Agreement is found to be invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of any other provision contained herein shall not in any way be
affected or impaired.
Section 4.9 Entire Agreement. This Agreement, the Security Agreement, and all attachments and exhibits hereto embody
the entire agreement between Merchant and Purchaser and supersede all prior agreements and understandings relating to
the subject matter hereof.
Section 4.10 JURY TRIAL WAIVER. THE PARTIES HERETO WAIVE TRIAL BY JURY IN ANY COURT IN
ANY SUIT, ACTION OR PROCEEDING ON ANY MATTER ARISING IN CONNECTION WITH OR IN ANY
WAY RELATED TO THE TRANSACTIONS OF WHICH THIS AGREEMENT IS A PART OR THE
ENFORCEMENT HEREOF. THE PARTIES HERETO ACKNOWLEDGE THAT EACH MAKES THIS
WAIVER KNOWINGLY, WILLINGLY AND VOLUNTARILY AND WITHOUT DURESS, AND ONLY AFTER
EXTENSIVE CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER WITH THEIR
ATTORNEYS.
Section 4.11 CLASS ACTION WAIVER. THE PARTIES HERETO WAIVE ANY RIGHT TO ASSERT ANY
CLAIMS AGAINST THE OTHER PARTY AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR
REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW AGAINST
PUBLIC POLICY. TO THE EXTENT EITHER PARTY IS PERMITTED BY LAW OR COURT OF LAW TO
PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES
HEREBY AGREE THAT: (a) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER
ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE
ACTION (NOT WITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT); AND (b) THE PARTY
WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR
OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR
REPRESENTATIVE ACTION.
Section 4.12 Arbitration Agreement
(a) Purchaser and Merchant agree that upon the election of either Party, any dispute relating in any way to this
Agreement will be resolved by binding arbitration as discussed below, and not through litigation in any court.
(b) Purchaser recognizes that the benefits associated with arbitration include a speedy, less-formal, impartial, final
and binding dispute-resolution procedure.
(c) This arbitration agreement is entered into pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1–16. To the extent
that the Federal Arbitration Act is inapplicable, the arbitration law of the state where Purchaser is incorporated
shall apply. YOU HAVE A RIGHT TO OPT OUT OF THIS AGREEMENT TO ARBITRATE, AS DISCUSSED
BELOW. UNLESS YOU OPT OUT OF ARBITRATION, YOU AND WE ARE WAIVING THE RIGHT TO
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HAVE OUR DISPUTE HEARD BEFORE A JUDGE OR JURY, OR OTHERWISE TO BE DECIDED BY A
COURT OR GOVERNMENT TRIBUNAL. YOU AND WE ALSO WAIVE ANY ABILITY TO ASSERT OR
PARTICIPATE ON A CLASS OR REPRESENTATIVE BASIS IN COURT OR IN ARBITRATION. ALL
DISPUTES, EXCEPT AS STATED BELOW, MUST BE RESOLVED BY BINDING ARBITRATION WHEN
EITHER YOU OR WE REQUEST IT. BY SIGNING THIS AGREEMENT, YOU ACKNOWLEDGE THAT
YOU HAVE BEEN GIVEN THE OPPORTUNITY TO DISCUSS THIS AGREEMENT WITH YOUR
PRIVATE LEGAL COUNSEL AND HAVE AVAILED YOURSELF OF THAT OPPORTUNITY TO THE
EXTENT YOU WISH TO DO SO.
(d) Claims or disputes between Purchaser and Merchant about this Agreement and any related issues are subject to
arbitration. Any claims or disputes arising from or relating to this Agreement, any prior agreement between the
Parties, or the advertising, the application for, or the approval or establishment of this Agreement are also
included. Claims are subject to arbitration, regardless of what theory they are based on or whether they seek legal
or equitable remedies. Arbitration applies to any and all such claims or disputes, whether they arose in the past,
may currently exist, or may arise in the future. All such claims or disputes are referred to in this Agreement as
“Claims.” The only exception to arbitration of Claims is that both Parties have the right to pursue a Claim in a
small claims court instead of arbitration, if the Claim is in that court’s jurisdiction and proceeds on an individual
basis.
(e) Either Party may opt out of this agreement to arbitrate upon contacting the other Party within thirty (30) days of
signing this Agreement. Otherwise, this agreement to arbitrate will apply without limitation, regardless of whether
Purchaser has received the Purchased Amount or whether either Party files for bankruptcy.
(f) As set forth in Section 4.11 above, Claims in arbitration will proceed on an individual basis, on behalf of the
named parties only.
(g) Arbitration applies whenever there is a Claim between Purchaser and Merchant. If a third party is also involved in
a Claim between the Parties, then the Claim will be decided with respect to the third party in arbitration as well,
and it must be named as a party in accordance with the rules of procedure governing the arbitration. No award or
relief will be granted by the Arbitrator (as defined herein) except on behalf of, or against, a named party.
(h) The arbitration will be held under the auspices of the American Arbitration Association or JAMS (or any
successor of either of them) (“Administrator”). The Party that did not initiate the claim shall designate the
Administrator. Regardless of which organization is designated to be the Administrator, the arbitration shall be
held in accordance with the JAMS Comprehensive Arbitration Rules & Procedures (and no other rules), which are
currently available at http://www.jamsadr.com/rules- comprehensive-arbitration. The Arbitrator shall be either a
retired judge, or an attorney who is experienced in employment law and licensed to practice law in the state in
which the arbitration is convened (the “Arbitrator”), selected pursuant to JAMS rules or by mutual agreement of
the Parties. The Arbitrator shall apply the substantive law (and the law of remedies, if applicable) of the state in
which the claim arose, or federal law, or both, as applicable to the claim(s) asserted. The Arbitrator is without
jurisdiction to apply any different substantive law or law of remedies. The Federal Rules of Evidence shall apply.
The arbitration shall be final and binding upon the parties, except as provided in this Agreement. The Arbitrator
shall have jurisdiction to hear and rule on pre-hearing disputes and is authorized to hold pre-hearing conferences
by telephone or in person, as the Arbitrator deems advisable. The Arbitrator shall have the authority to entertain a
motion to dismiss and/or a motion for summary judgment by any party and shall apply the standards governing
such motions under the Federal Rules of Civil Procedure. Should any party refuse or neglect to appear for, or
participate in, the arbitration hearing, the Arbitrator shall have the authority to decide the dispute based upon
whatever evidence is presented. Either Party upon its request shall be given leave to file a post-hearing brief. The
time for filing such a brief sha
Preview
FILED: KINGS COUNTY CLERK 03/26/2024 01:20 PM INDEX NO. 508582/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/26/2024 EXHIBIT A FILED: KINGS COUNTY CLERK 03/26/2024 01:20 PM INDEX NO. 508582/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/26/2024 VALIDATION FORM 1014 S. Westlake Blvd., Suite 14-227, Westlake Village, CA 91361 Please email completed app to: applications@selectfunding.com (866) 264-7007 COMPANY INFORMATION Legal Company Name: Right Angle Rebar LLC Legal Entity Type: LLC DBA: Right Angle Rebar Tax ID # (EIN): Company Phone: State of Incorporation: NY Physical Address: 3724 Polar Street Business Inception Date: September 01, 2019 City / State: Brooklyn NY Zip Code: 11224 Annual Business Revenue: $457,317.00 OWNER INFORMATION (1) OWNER INFORMATION (2) Full Legal Name: Edwin Alvarez Full Legal Name: Home Address: 3724 Polar Street Home Address: City / State: Brooklyn NY City / State: Zip Code: 11224 Zip Code: Home Phone: Home Phone: Cell Phone: Cell Phone: % Ownership: 100% % Ownership: Social Security No: Social Security No: Date of Birth: Date of Birth: E-mail Address: E-mail Address: SIGN HERE SIGN HERE X X 6/1/2022 IMPORTANT AUTHORIZATIONS - READ BEFORE SIGNING: By my/our signature on this Application, either as a principal of the applicant or a personal guarantor of applicant’s obligations, I/we hereby certify that all information contained in this Application and all attachments hereto, are true and complete to the best of my/our knowledge, and are made for the purpose of obtaining credit. I/we authorize Select Funding, or its designee (and any assignee or potential assignee thereof), to verify any of the information from whatever source it deems appropriate, which authorization shall extend to obtaining and review of my/our personal consumer credit profile from a national credit bureau in considering this Application and subsequently for the purpose of update, renewal or extension of such credit or additional credit and for reviewing or collecting the resulting account. If this Application for business credit is denied, you have the right to a written statement of the specific reasons for denial. To obtain the statement, contact Select Funding within 60 days from the date you are notified of our decision. We will send you a written statement of the reasons for the denial within 30 days of receiving your request for the statement. NOTICE: The Federal Equal Opportunity Act prohibits creditors from discriminating against applicants on the basis of race, color, religion, national origin, sex, marital status, or age (provided the applicant has the capacity to enter into a binding contract); or because all or a part of the applicant’s income derives from any public assistance program or because the applicant has in good faith exercised any right under the Consumer Credit Protection Act. The federal agency that administers compliance with this law concerning this creditor is the Federal Trade Commission, Equal Credit Opportunity, Washington, D.C. 20580. IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT: To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who applies for a loan. What this means for you: When you apply for a loan, we will ask for your name, address, date of birth, and other information that allows us to identify you. We may also ask to see your driver's license or other identifying documents. A Copy or Facsimile of this Agreement with Signature shall be Considered to be an Original. ID: 6220252 Signed: 2022-06-01T14:51:07-05:00 FILED: KINGS COUNTY CLERK 03/26/2024 01:20 PM INDEX NO. 508582/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/26/2024 WEEKLY PAYMENT ADDENDUM C2782117 This is an addendum to the “Merchant Agreement” dated 06/01/2022. Select Funding, LLC will be debiting the Specified Daily Amount of $71.09 on a weekly basis, with an ACH debit of $355.43 initiating one-week post funding until the Purchased Amount has been received in full. Select Funding, LLC has the rights and authority to revert to a daily ACH if the terms and conditions of the Merchant Agreement are breached. Except as provided in this addendum, all terms and conditions of the Merchant agreement C2782117 and the Supplement shall remain in full force and effect. Name: BRIAN SPRATT Name: Edwin Alvarez SELECT FUNDING, LLC Right Angle Rebar LLC Right Angle Rebar Title: CEO Title: Member Date: 6/1/2022 Date: 6/1/2022 1|Page ID: 6220252 Signed: 2022-06-01T14:51:07-05:00 FILED: KINGS COUNTY CLERK 03/26/2024 01:20 PM INDEX NO. 508582/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/26/2024 MERCHANT AGREEMENT C2782117 MERCHANT INFORMATION Merchant’s Legal Name: Right Angle Rebar LLC DBA: Right Angle Rebar Phone Number: Cell Phone: Type of Entity: LLC Physical Address: 3724 Polar Street , Brooklyn, NY 11224 Mailing Address: 3724 Polar Street , Brooklyn, NY 11224 This Merchant Agreement (this “Agreement”) dated 06/01/2022 between the merchant listed below (together with its successors and/or assigns, the “Merchant”) and the Purchaser defined below in Section 4.14 (each, a “Party” and, collectively, the “Parties”). ARTICLE I: PURCHASE AND SALE OF FUTURE RECEIVABLES Section 1.1 Sale and Purchase. In consideration of the funds remitted by Purchaser to Merchant and specified below (“Purchase Price”), Merchant hereby irrevocably sells, assigns and transfers to Purchaser (making Purchaser the absolute owner), the percentage indicated below (the “Specified Percentage”) of the Merchant’s future accounts, contract rights and other obligations arising from or relating to the payment of monies from Merchant’s customers’ and/or other third- party payers to Merchant (the “Future Receivables” defined as all payments made by cash, check, electronic transfer, credit card transactions or other form of monetary payment to Merchant in the ordinary course of the Merchant’s business), for the payment of Merchant’s sale of goods or services until the amount specified below (the “Purchased Amount”) has been delivered by Merchant to Purchaser. Section 1.2 Payment of Specified Percentage. The Merchant hereby agrees to deposit all Future Receivables into a bank account approved by the Purchaser (the “Account”) and the Merchant hereby authorizes Purchaser and its agents to initiate Automated Clearinghouse (“ACH”) payments equal to the Purchased Percentage of all deposits made into the Account each Weekday (as defined herein) until the Purchaser has received an amount equal to the Purchased Amount. Merchant will provide Purchaser with all required access codes, and periodic bank statements by the 18th of each calendar month during which this Agreement is in effect. Merchant understands that it is responsible for ensuring that the Specified Percentage to be debited by Purchaser remains in the Account and will be held responsible for any fees incurred by Purchaser resulting from a rejected ACH attempt or an Event of Default (as defined herein). Purchaser is not responsible for any overdrafts or rejected transactions that may result from Purchaser ACH debiting the specified amounts under the terms of this Agreement. Notwithstanding anything to the contrary in this Agreement or any other agreement between Purchaser and Merchant, upon any breach set forth in Section 3.1(b) of this Agreement or the occurrence of an Event of Default under Section 3.1(a) of this Agreement, the Specified Percentage shall equal 100%. A list of all fees applicable under this Agreement is contained in Appendix B. Purchase Price: $10496.00 Specified Percentage: 4% Purchased Amount: $15639.04 Section 1.3 Fees. The following fees apply to the Purchaser’s purchase of the Specified Percentage under this Agreement: (a) Processing Fee: The Purchase Price indicated above will be remitted to Merchant net of a processing fee equal to $262.40 which is 2.5% of the Purchased Price, such fee to cover Purchaser’s diligence of Merchant and related expenses, including the filing of UCC financing statement(s) regarding the Future Receivables as authorized under this Agreement. 2|Page ID: 6220252 Signed: 2022-06-01T14:51:07-05:00 FILED: KINGS COUNTY CLERK 03/26/2024 01:20 PM INDEX NO. 508582/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/26/2024 (b) Prepayment: Merchant shall have the right to prepay the purchase agreement within the first 100 days from disbursement of Purchase Price at a 7% discount to the balance of the Purchased Amount. The balance of the Purchased Amount will be calculated once accounting for already collected and posted receivables. Merchant shall have no right to prepay this Purchase Agreement if; the advance has previously been modified, there has been a forbearance in payments, or there has been a breach of the Merchant Agreement. Section 1.4 Weekdays, Bank Holidays. “Weekday” is defined as Monday through Friday, inclusive (each, a “Weekday”). Purchaser will debit the Account only on Weekdays on which the bank holding Merchant’s Account is open and able to process ACH transactions. On the Weekday immediately following any Weekday or other day(s) on which the bank holding the Account was not open or was not able to process ACH transactions for reasons other than an insufficient Account balance, Purchaser will debit the Account for an amount equal to the sum of (a) the Specified Percentage to be delivered to Purchaser on that Weekday, plus (b) the Specified Percentage to be delivered to Purchaser on the preceding Weekday(s) when the bank holding the Account was not open or could not process ACH transactions. Section 1.5 Authorization; No Misrepresentation. To the extent set forth herein, each of the Parties is obligated upon its execution of the Agreement to all terms of this Agreement. Merchant represents that it has the authority to enter into this Agreement. Each of the below-signed Merchant and owners (the “Owners”) represents that he or she is authorized to sign this Agreement for Merchant, legally binding Merchant to satisfy its obligations hereunder and that the information provided herein and in all of Purchaser’s documents, forms and recorded interviews is true, accurate and complete in all respects. If any such information provided by Merchant is false or misleading, Merchant shall be deemed in material breach of all agreements between Merchant and Purchaser, and Purchaser shall be entitled to all remedies available under law. Purchaser may produce a monthly statement reflecting the delivery of the Specified Percentage from Merchant to Purchaser. An investigative or consumer report may be requested in connection with this Agreement. Merchant and each of the below-signed Owners authorize Purchaser, its agents and representatives and any third party engaged by Purchaser, to (i) investigate any references given or any other statements or data obtained from or about Merchant or any of its Owners for the purpose of this Agreement, and (ii) obtain a credit report at any time now or for so long as Merchant and/or Owner(s) continue to have any obligation to deliver receivables to Purchaser as a consequence of this Agreement or for Purchaser’s ability to determine Merchant’s eligibility to enter into any future agreement with Purchaser. ANY MISREPRESENTATION MADE BY MERCHANT OR OWNER IN CONNECTION WITH THIS AGREEMENT MAY CONSTITUTE A SEPARATE CAUSE OF ACTION FOR FRAUD OR INTENTIONAL MISREPRESENTATION. ARTICLE II: TERMS AND CONDITIONS Section 2.1 Use of the Account (a) Merchant shall execute an agreement acceptable to Purchaser with a bank acceptable to Purchaser to obtain electronic fund transfer services. Merchant shall provide Purchaser and/or its authorized agent with all of the information, authorizations and passwords necessary for verifying Merchant’s receivables, receipts and deposits into the Account. Merchant shall authorize Purchaser and/or its agent to deduct the amounts owed to Purchaser for the Future Receivables as specified herein from settlement amounts which would otherwise be due to Merchant and to pay such amounts to Purchaser by permitting Purchaser to withdraw the Specified Percentage by ACH debiting of the Account. To effectuate the foregoing, Merchant shall execute and deliver to Purchaser an authorization for ACH payments on Purchaser’s standard form (the “ACH Authorization”), set forth as Appendix B to this Agreement. The ACH Authorization shall be irrevocable without the express prior written consent of Purchaser. (b) Merchant shall exclusively use the Account for the deposit of all Future Receivables and shall not close the Account of or cease to use the Account as the sole account into which to deposit all Future Receivables prior to 3|Page ID: 6220252 Signed: 2022-06-01T14:51:07-05:00 FILED: KINGS COUNTY CLERK 03/26/2024 01:20 PM INDEX NO. 508582/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/26/2024 the time that Purchaser has received the entire Purchased Amount. The Account may not be closed without the prior written consent of Purchaser. (c) Merchant shall not (i) breach or default under the deposit agreement with the bank maintaining the Account; (ii) change or permit the change of the Bank or add an additional bank to hold deposits of Merchant, in each case, without the express prior written consent of Purchaser; (iii) change the Account name, password or other access information relating to accounts from which ACH payments are to be made without giving Purchaser the notice required under Section 3.4(d) herein; or (iv) divert any cash, checks, electronic payments in any manner or to any person, location or account other than the Account. (d) Purchaser and Merchant understand that the bank and/or any ACH processor may charge a fee or commission for processing electronic checks, ACH payments and other receipts, and that the bank’s and/or any ACH processor’s fees or commission shall not reduce any amounts due to Purchaser hereunder. Section 2.2 Term of Agreement. This Agreement shall be in full force and effect until the Purchased Amount has been delivered to the Purchaser pursuant to the terms of this Agreement. Because the transaction evidenced by this Agreement is not a loan, there is no repayment term. Section 2.3 Future Purchases. Nothing in this Agreement shall be construed to (a) obligate Purchaser to or (b) prevent Purchaser from making any future purchases from Merchant. Section 2.4 Financial Condition. Merchant and Owner(s) authorize Purchaser and its agents to investigate their financial responsibility and history, and will provide to Purchaser any bank or financial statements, tax returns, as Purchaser deems necessary prior to or at any time during the Term of this Agreement. Merchant hereby authorizes Purchaser to contact any current or prior bank of Merchant in order to obtain whatever information it may require regarding Merchant’s transactions with any such bank. Purchaser is authorized to update such information and financial profiles from time to time as it deems appropriate. In addition to the foregoing, Merchant authorizes Purchaser to contact any current or prior bank of Merchant in order to confirm that Merchant is exclusively using the Account approved by Merchant in accordance with this Agreement. Section 2.5 Transactional History. Merchant hereby authorizes its bank to provide Purchaser from time to time with Merchant’s banking or processing history to determine qualification or continuation in the program contemplated under this Agreement. Section 2.6 No Liability. In no event will Purchaser be liable for any claims asserted by Merchant under any legal theory for lost profits, lost revenues, lost business opportunities, exemplary, punitive, special, incidental, indirect or consequential damages, each of which is waived by Merchant and Owner(s). Section 2.7 Sale of Future Receivables. (a) Merchant and Purchaser agree that the Purchase Price under this Agreement is in exchange for the Specified Percentage and that such Purchase Price is not intended to be, nor shall it be construed as a loan from Purchaser to Merchant. Merchant agrees that the Purchase Price paid in exchange for the Future Receivables pursuant to this Agreement equals the fair market value of such Future Receivables. Purchaser has purchased and shall own the Specified Percentage described in this Agreement. As the Specified Percentage is derived solely from Merchant’s sale of products and services and the payment therefore by Merchant’s customers, Purchaser’s receipt of the Specified Percentage shall be directly conditioned upon Merchant’s sale of products and services to Merchant’s customers. (b) The Purchaser does not charge any interest, finance charges, points, late fees or similar fees (except as permitted by applicable law in connection with civil judgments). The Purchaser is purchasing the Future Receivables at a discount and, for the avoidance of doubt, the Merchant and the Purchaser agree that the Purchaser shall be the sole 4|Page ID: 6220252 Signed: 2022-06-01T14:51:07-05:00 FILED: KINGS COUNTY CLERK 03/26/2024 01:20 PM INDEX NO. 508582/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/26/2024 and exclusive owner of the Specified Percentage, and that the Specified Percentage shall not be part of the Merchant’s estate in a bankruptcy of the Merchant. (c) Notwithstanding the Parties’ express intent to the contrary set forth in Section 2.7(a) herein, in the event that the Purchaser’s purchase of the Specified Percentage is finally determined by a court of competent jurisdiction to constitute a loan from the Purchaser to the Merchant, the Purchaser shall return to the Merchant any interest deemed to have been received by the Purchaser on such loan in excess of the maximum amount of interest permitted by applicable law to be received by the Purchaser. (d) Merchant agrees and acknowledges that it is not a debtor of Purchaser during the Term of this Agreement; accordingly, any attempts to modify Merchant’s obligations to deliver to the Purchaser the Specified Percentage shall be invalid and void. (e) Merchant agrees that it will treat the Purchase Price and Purchased Amount in a manner consistent with a sale in its accounting records and on its tax returns. Merchant agrees that Purchaser is entitled to audit Merchant’s accounting records and tax returns, upon reasonable notice, in order to verify that that Merchant is complying with this Section 2.7(e), including during any litigation or arbitration between Purchaser and Merchant and/or Owner(s). Merchant waives any rights of privacy, confidentiality or taxpayer privilege in any such litigation or arbitration in which Merchant asserts that the Purchase Price paid by the Purchaser in exchange for the Purchased Amount of Future Receivables is anything other than a sale of the Purchased Amount. Section 2.8 Power of Attorney. Merchant irrevocably appoints Purchaser as its agent and attorney-in-fact with full authority to take any action or execute any instrument or document to settle all obligations due to Purchaser from any third party, or any breach by Merchant set forth in Section 3.1(b) or the occurrence of an Event of Default as defined under Section 3.1(a) herein, from Merchant, under this Agreement, including without limitation (i) to obtain and adjust insurance; (ii) to collect monies due or to become due under or in respect of any of the Collateral (as defined in the Security Agreement and Guaranty attached as Appendix A to this Agreement (the “Security Agreement”)); (iii) to receive, endorse and collect any checks, notes, drafts, instruments, documents or chattel paper in connection with clause (i) or clause (ii) above; (iv) to sign Merchant’s name on any invoice, bill of lading or assignment directing customers or account debtors to make payment directly to Purchaser; and (v) to file any claims or take any action or institute any proceeding which Purchaser may deem necessary for the collection of any of the unpaid Purchased Amount from the Collateral, or otherwise to enforce its rights with respect to payment of the Purchased Amount. Section 2.9 Working Capital Funding. Merchant shall not enter into any arrangement, agreement or commitment that relates to or involves the Future Receivables, whether in the form of a purchase of, a loan against, collateral against or the sale or purchase of credits against Future Receivables or future check sales with any party other than Purchaser. Section 2.10 Unencumbered Receipts. Merchant has good, complete and marketable title to all Future Receivables, free and clear of any and all liabilities, liens, claims, changes, restrictions, conditions, options, rights, mortgages, security interests, equities, pledges and encumbrances of any kind or nature whatsoever or any other rights or interests that may be inconsistent with the transactions contemplated with, or adverse to the interests of Purchaser. Section 2.11 Business Purpose: Compliance with Laws. Merchant is a valid business in good standing under the laws of the jurisdictions in which it is organized and/or operates. Merchant represents that it is entering into this Agreement for business purposes and not as a consumer for personal, family or household purposes. The Merchant is in compliance with all statutes, rules, regulations, orders or restrictions of all applicable governmental authorities. All federal, state, local and foreign tax returns and tax reports, and all taxes due and payable arising therefrom required to be filed by the Merchant have been or will be filed and paid, on a timely basis (including any extensions). All such returns and reports are and will be true, correct and complete. The Merchant has no material liabilities and, to the best of its knowledge, knows of no material contingent liabilities, except current liabilities incurred in the ordinary course of 5|Page ID: 6220252 Signed: 2022-06-01T14:51:07-05:00 FILED: KINGS COUNTY CLERK 03/26/2024 01:20 PM INDEX NO. 508582/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/26/2024 business. The Future Receivables are currently and, in the future, will be generated in the ordinary course of the conduct of commerce or business. Section 2.12 Change of Name. The Merchant will not conduct its businesses under any name other than as disclosed to the bank approved by the Purchaser without providing notice as required under Section 3.4(c) herein. Section 2.13 Conflicts with Other Contracts. The execution and delivery of the consummation of the transactions contemplated hereunder and compliance with the provisions of this Agreement, does not and will not conflict with or result in any violation default, and does not or will not entitle any person or entity to receipt of notice or to a right of consent, or give rise to a right of termination, cancellation or acceleration of any obligation or to loss of a benefit, or to any increased, additional, accelerated or guaranteed rights or entitlement of any person or entity, or result in the creation of any claim on the properties or assets of the Merchant. Section 2.14 UCC Financing Statements. Merchant hereby authorizes Purchaser at its sole option to file one or more financing statements under the UCC prior to or at any time after purchasing the Specified Percentage in order to evidence and perfect the security interest granted to the Purchaser herein. Section 2.15 Chargebacks. In the event any Future Receivables become the subject of a charge back, returned check or other negation of the future sale prior to Purchaser receiving value for the Future Receivables in the form of a cash transfer from the Account to the Purchaser, then the Purchased Amount will be increased by the amount so charged back, returned or negated and shall be paid to Purchaser from subsequent Future Receivables. ARTICLE III: EVENTS OF DEFAULT. PROTECTIONS AGAINST DEFAULT AND REMEDIES Section 3.1 Events of Default, Protections against Default (a) The occurrence of any of the following events shall constitute an “Event of Default” hereunder: (i) Merchant shall violate any term or covenant in this Agreement; (ii) any representation or warranty by Merchant in this Agreement shall prove to have been incorrect, false or misleading in any material respect when made; (iii) the sending of notice of termination by Owner; (iv) Merchant shall transport, move, interrupt, suspend, dissolve or terminate its business; (v) Merchant shall transfer or sell all or substantially all of its assets; (vi) Merchant shall make or send notice of any intended bulk sale or transfer by Merchant; (vii) Merchant shall use multiple depository accounts without the prior written consent of Purchaser; (viii) Merchant shall change its Account without the prior written consent of Purchaser; (ix) Merchant shall perform any act that reduces the value of any Collateral granted under this Agreement; or (x) Merchant shall default under any of the terms, covenants and conditions of any other agreement with Purchaser. (b) The “Protections,” as defined in Section 3.1(c) herein, may be invoked by Purchaser immediately and without notice to Merchant in the event of any of the following violations by Merchant: (i) Merchant permits any event to occur that could have an adverse effect on the use, acceptance or authorization of checks for the purchase of Merchant’s services and products; (ii) Merchant changes its arrangements with any third party in any way that is adverse to Purchaser; (iii) Merchant permits any event to occur that could cause diversion of any Future Receivables to any person, location or account other than the Account; (iv) Merchant interrupts the operation of its business (for reasons other than adverse weather, natural disasters or acts of God), transfers, moves, sells, disposes, transfers or otherwise conveys its business or assets without (A) the express prior written consent of Purchaser, and (B) the written agreement of any purchaser or transferee to the assumption of all of Merchant’s obligations under this Agreement pursuant to documentation satisfactory to Purchaser; (v) Merchant blocks or otherwise compromises Purchaser’s access to the Account; or (vi) Merchant takes any action, fails to take any action, or offers any incentive—economic or otherwise—the result of which will be to induce any customer or customers to pay for Merchant’s services with any means other than those set forth in this Agreement. 6|Page ID: 6220252 Signed: 2022-06-01T14:51:07-05:00 FILED: KINGS COUNTY CLERK 03/26/2024 01:20 PM INDEX NO. 508582/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/26/2024 (c) The following protections shall be available to Purchaser in addition to any other remedies available to Purchaser at law, in equity or otherwise pursuant to this Agreement (collectively, the “Protections”): (i) the full uncollected Purchased Amount plus all fees due under this Agreement and the Security Agreement attached hereto as Exhibit B may become due and payable in full immediately; (ii) Purchaser may enforce the provisions of the Personal Guarantee of Performance (as defined in the Security Agreement) against the Owner; (iii) Merchant may, upon execution of this Agreement, deliver to Purchaser an executed confession of judgment in favor of Purchaser in the amount of the Purchased Amount stated in this Agreement. Upon any breach set forth in Section 3.1(b), Purchaser may enter that confession of judgment as a judgment with any petition brought or pending against Merchant. Merchant further warrants that it does not anticipate filing any bankruptcy petition and it does not anticipate that an involuntary petition will be filed against it. Section 3.2 Remedies. In case any Event of Default occurs and is not waived pursuant to Section 4.4 hereof, Purchaser may proceed to protect and enforce its rights or remedies by suit in equity or by action at law, or both, whether for the specific performance of any covenant, agreement or other provision contained herein, or to enforce the discharge of Merchant’s obligations hereunder or any other legal or equitable right or remedy. All rights, powers and remedies of Purchaser in connection with this Agreement may be exercised at any time by Purchaser after the occurrence of an Event of Default, are cumulative and not exclusive and shall be in addition to any other rights, powers or remedies provided by law or equity. Section 3.3 Costs. Merchant shall pay to Purchaser all reasonable costs associated with (a) a breach by Merchant of the covenants in this Agreement and the enforcement thereof, and (b) the enforcement of Purchaser’s remedies set forth in Section 3.2 above, including but not limited to court costs and/or attorneys’ fees. Section 3.4 Required Notifications. (a) Merchant is required to give Purchaser written notice within 24 hours of any filing under Title 11 of the United States Code. (b) Merchant is required to give Purchaser seven (7) days’ written notice prior to the closing of any sale of all or substantially all of the Merchant’s assets or stock. (c) Merchant will not change any of its places of business, or change its legal name, entity type or state of formation, unless it has provided the Purchaser with not less than thirty (30) days’ prior notice thereof and has provided Purchaser with any documents, agreements and information reasonably requested by the Purchaser with respect thereto. (d) Merchant will not change the Account name, password or other access information relating to accounts from which ACH or electronic check payments are to be made without giving Purchaser at least ten (10) business days’ prior notice of such change. ARTICLE IV: MISCELLANEOUS Section 4.1 Modifications: Agreements. No modification, amendment, waiver or consent of any provision of this Agreement shall be effective unless the same shall be in writing and signed by Purchaser. Section 4.2 Assignment. Purchaser may assign, transfer or sell its rights to receive the Purchased Amount or delegate its duties hereunder, either in whole or in part. 7|Page ID: 6220252 Signed: 2022-06-01T14:51:07-05:00 FILED: KINGS COUNTY CLERK 03/26/2024 01:20 PM INDEX NO. 508582/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/26/2024 Section 4.3 Notices. All notices, requests, consent, demands and other communications hereunder shall be delivered by certified mail, return receipt requested, to the respective Parties to this Agreement at the following addresses and shall become effective only upon receipt: If to Purchaser: c/o Select Funding, LLC 1014 S. Westlake Blvd. Suite 14-227 Westlake Village, CA 91361 adjustments@selectfunding.com If to Merchant: Edwin Alvarez Right Angle Rebar LLC 3724 Polar Street Brooklyn, NY 11224 Section 4.4 Waiver Remedies. No failure on the part of Purchaser to exercise, and no 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 thereof or the exercise of any other right. The remedies provided hereunder are cumulative and not exclusive of any remedies provided by law or equity. Section 4.5 Binding Effect: Governing Law, Venue, and Jurisdiction. This Agreement shall be binding upon and inure to the benefit of Merchant, Purchaser and their respective successors and assigns, except that Merchant shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of Purchaser which consent may be withheld in Purchaser’s sole discretion. Purchaser reserves the rights to assign this Agreement with or without prior written notice to Merchant. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regards to any applicable principals of conflicts of law. Any suit, action or proceeding arising hereunder, or the interpretation, performance or breach hereof, shall, if Purchaser so elects, be instituted in any court sitting in New York, (the “Acceptable Forums”). Merchant agrees that the Acceptable Forums are convenient to it and submits to the jurisdiction of the Acceptable Forums and waives any and all objections to jurisdiction or venue. Should such proceeding be initiated in any other forum, Merchant waives any right to oppose any motion or application made by Purchaser to transfer such proceeding to an Acceptable Forum. Section 4.6 Indemnification. In addition to all rights and remedies available to the Parties hereto at law or in equity, the Merchant shall indemnify the Purchaser, its affiliates and their respective stockholders, officers, directors, employees, agents, successors and assigns, (collectively, the “Indemnified Persons”), and save and hold each Indemnified Person harmless from and against and pay on behalf of or reimburse each such Indemnified Person, as and when incurred, for any and all loss, liability, demand, claim, action, cause of action, cost, damage, deficiency, tax, penalty, fine or expense, 8|Page ID: 6220252 Signed: 2022-06-01T14:51:07-05:00 FILED: KINGS COUNTY CLERK 03/26/2024 01:20 PM INDEX NO. 508582/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/26/2024 whether or not arising out of any claims by or on behalf of such Indemnified Person or any third party, including interest, penalties, reasonable attorneys’ fees and expenses and all amounts paid in investigation, defense or settlement of any of the foregoing (including all reasonable attorneys’ fees and expenses incurred in connection with the enforcement of this Section), that any such Indemnified Person may suffer, sustain, incur or become subject to, as a result of, in connection with, relating or incidental to or by virtue of: (i) any misrepresentation or breach of warranty of the Merchant under this Agreement or any ancillary documents; or (ii) any nonfulfillment, default or breach of any covenant or agreement of the Merchant in this Agreement or any ancillary documents. Section 4.7 Survival of Representation. All representations, warranties and covenants herein shall survive the execution and delivery of this Agreement and shall continue in full force until all obligations under this Agreement shall have been satisfied in full and this Agreement shall have terminated. Section 4.8 Severability. In case any of the provisions in this Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of any other provision contained herein shall not in any way be affected or impaired. Section 4.9 Entire Agreement. This Agreement, the Security Agreement, and all attachments and exhibits hereto embody the entire agreement between Merchant and Purchaser and supersede all prior agreements and understandings relating to the subject matter hereof. Section 4.10 JURY TRIAL WAIVER. THE PARTIES HERETO WAIVE TRIAL BY JURY IN ANY COURT IN ANY SUIT, ACTION OR PROCEEDING ON ANY MATTER ARISING IN CONNECTION WITH OR IN ANY WAY RELATED TO THE TRANSACTIONS OF WHICH THIS AGREEMENT IS A PART OR THE ENFORCEMENT HEREOF. THE PARTIES HERETO ACKNOWLEDGE THAT EACH MAKES THIS WAIVER KNOWINGLY, WILLINGLY AND VOLUNTARILY AND WITHOUT DURESS, AND ONLY AFTER EXTENSIVE CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER WITH THEIR ATTORNEYS. Section 4.11 CLASS ACTION WAIVER. THE PARTIES HERETO WAIVE ANY RIGHT TO ASSERT ANY CLAIMS AGAINST THE OTHER PARTY AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW AGAINST PUBLIC POLICY. TO THE EXTENT EITHER PARTY IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES HEREBY AGREE THAT: (a) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOT WITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT); AND (b) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION. Section 4.12 Arbitration Agreement (a) Purchaser and Merchant agree that upon the election of either Party, any dispute relating in any way to this Agreement will be resolved by binding arbitration as discussed below, and not through litigation in any court. (b) Purchaser recognizes that the benefits associated with arbitration include a speedy, less-formal, impartial, final and binding dispute-resolution procedure. (c) This arbitration agreement is entered into pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1–16. To the extent that the Federal Arbitration Act is inapplicable, the arbitration law of the state where Purchaser is incorporated shall apply. YOU HAVE A RIGHT TO OPT OUT OF THIS AGREEMENT TO ARBITRATE, AS DISCUSSED BELOW. UNLESS YOU OPT OUT OF ARBITRATION, YOU AND WE ARE WAIVING THE RIGHT TO 9|Page ID: 6220252 Signed: 2022-06-01T14:51:07-05:00 FILED: KINGS COUNTY CLERK 03/26/2024 01:20 PM INDEX NO. 508582/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/26/2024 HAVE OUR DISPUTE HEARD BEFORE A JUDGE OR JURY, OR OTHERWISE TO BE DECIDED BY A COURT OR GOVERNMENT TRIBUNAL. YOU AND WE ALSO WAIVE ANY ABILITY TO ASSERT OR PARTICIPATE ON A CLASS OR REPRESENTATIVE BASIS IN COURT OR IN ARBITRATION. ALL DISPUTES, EXCEPT AS STATED BELOW, MUST BE RESOLVED BY BINDING ARBITRATION WHEN EITHER YOU OR WE REQUEST IT. BY SIGNING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE BEEN GIVEN THE OPPORTUNITY TO DISCUSS THIS AGREEMENT WITH YOUR PRIVATE LEGAL COUNSEL AND HAVE AVAILED YOURSELF OF THAT OPPORTUNITY TO THE EXTENT YOU WISH TO DO SO. (d) Claims or disputes between Purchaser and Merchant about this Agreement and any related issues are subject to arbitration. Any claims or disputes arising from or relating to this Agreement, any prior agreement between the Parties, or the advertising, the application for, or the approval or establishment of this Agreement are also included. Claims are subject to arbitration, regardless of what theory they are based on or whether they seek legal or equitable remedies. Arbitration applies to any and all such claims or disputes, whether they arose in the past, may currently exist, or may arise in the future. All such claims or disputes are referred to in this Agreement as “Claims.” The only exception to arbitration of Claims is that both Parties have the right to pursue a Claim in a small claims court instead of arbitration, if the Claim is in that court’s jurisdiction and proceeds on an individual basis. (e) Either Party may opt out of this agreement to arbitrate upon contacting the other Party within thirty (30) days of signing this Agreement. Otherwise, this agreement to arbitrate will apply without limitation, regardless of whether Purchaser has received the Purchased Amount or whether either Party files for bankruptcy. (f) As set forth in Section 4.11 above, Claims in arbitration will proceed on an individual basis, on behalf of the named parties only. (g) Arbitration applies whenever there is a Claim between Purchaser and Merchant. If a third party is also involved in a Claim between the Parties, then the Claim will be decided with respect to the third party in arbitration as well, and it must be named as a party in accordance with the rules of procedure governing the arbitration. No award or relief will be granted by the Arbitrator (as defined herein) except on behalf of, or against, a named party. (h) The arbitration will be held under the auspices of the American Arbitration Association or JAMS (or any successor of either of them) (“Administrator”). The Party that did not initiate the claim shall designate the Administrator. Regardless of which organization is designated to be the Administrator, the arbitration shall be held in accordance with the JAMS Comprehensive Arbitration Rules & Procedures (and no other rules), which are currently available at http://www.jamsadr.com/rules- comprehensive-arbitration. The Arbitrator shall be either a retired judge, or an attorney who is experienced in employment law and licensed to practice law in the state in which the arbitration is convened (the “Arbitrator”), selected pursuant to JAMS rules or by mutual agreement of the Parties. The Arbitrator shall apply the substantive law (and the law of remedies, if applicable) of the state in which the claim arose, or federal law, or both, as applicable to the claim(s) asserted. The Arbitrator is without jurisdiction to apply any different substantive law or law of remedies. The Federal Rules of Evidence shall apply. The arbitration shall be final and binding upon the parties, except as provided in this Agreement. The Arbitrator shall have jurisdiction to hear and rule on pre-hearing disputes and is authorized to hold pre-hearing conferences by telephone or in person, as the Arbitrator deems advisable. The Arbitrator shall have the authority to entertain a motion to dismiss and/or a motion for summary judgment by any party and shall apply the standards governing such motions under the Federal Rules of Civil Procedure. Should any party refuse or neglect to appear for, or participate in, the arbitration hearing, the Arbitrator shall have the authority to decide the dispute based upon whatever evidence is presented. Either Party upon its request shall be given leave to file a post-hearing brief. The time for filing such a brief sha