Preview
FILED: MONROE COUNTY CLERK 04/11/2024 04:46 PM INDEX NO. E2024006273
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/11/2024
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3820868
Book Page CIVIL
Return To: No. Pages: 20
ARIEL BOUSKILA
1545 US 202 Instrument: EXHIBIT(S)
Suite 101
Pomona, NY 10970 Control #: 202404111876
Index #: E2024006273
Date: 04/11/2024
110 EFFORT 1000 OF THE TIME Time: 5:20:40 PM
GLOBALSHOP, INC.
ACCESORY WORKSHOP LLC
JERSEY BEST BUDS DISPENSARY CO.
BAUMAN, GARY
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
202404111876 Index #NO.
INDEX : E2024006273
E2024006273
FILED: MONROE COUNTY CLERK 04/11/2024 04:46 PM
THE
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/11/2024
CONTRACT
Future Receivables Sale and Purchase Agreement
Founded:
2006
This agreement (this “Agreement”), dated 6/7/2023
______________________, between 110% EFFORT, 1000% OF THE TIME LLC (“110”)
and the seller(s) listed herein (collectively, the "Seller”) (all capitalized terms shall have the meanings ascribed to them below):
Staff:
85
Globalshop, Inc. 79 Chestnut Street, Suite 101
Customers:
B U SINESS LEGAL NAME: _____________________________ PHYSICAL ADDRESS: _______________________________________
168
Ridgewood NJ 07450
B U SINESS DBA NAME: _______________________________ ____________________________ ________ ______________
PO BOX 1211
Corporation
B U SINESS ENTITY TYPE: _____________________________ MAILING ADDRESS: _______________________________________
Ridgewood NJ 07450
EIN NUMBER: _________________________ ____________________________ ________ ______________
<><><>
5,000
PU RCHASE PRICE $__________________ 7,345
PU RCHASED AMOUNT $__________________
4
SPECIFIED PERCENTAGE _____________ % 36.73
INITIAL DAILY INSTALLMENT $______________
<><><>
Seller #1 Seller #2
B y: _______________________________________ B y: _______________________________________
Gary Bauman
Name: ____________________________________ Name: ____________________________________
Title: Owner/Manager Title: Owner/Manager
Co ncurrently with the execution of this Agreement by Seller, and as condition to the effectiveness hereof, Seller has caused
th e Personal Guarantee of Performance in the form attached hereto as “Exhibit A” (the “Guaranty”) to be signed and
d elivered to 110 by the following Owner(s)/Guarantor(s) of Seller.
Owner/Guarantor # 1 Owner/Guarantor #2
B y: _______________________________________ B y: ______________________________________
Gary Bauman
Name: ____________________________________ Name: ____________________________________
Title: Owner/Manger Title: Owner/Manger
SSN: _________________________ SSN: _____________________________________
(201) 444-7204
Phone: ___________________________________ Phone: ____________________________________
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Furthermore, the 3event the Seller and/or Guarantor are RECEIVED
pursuant to Seller’s authorization NYSCEF:
set forth 04/11/2024
in Rider 1 to this
comprised of more than one entity and/or individuals, then ALL Agreement, provided nevertheless that such deduction shall not be
such entities and/or individuals, respectively, shall sign the deemed to reduce the agreed upon Purchase Price.
Addendum to this Agreement in the form attached hereto as
Exhibit B (the “Addendum”). j . “Prior Balance” shall mean the sum of all amounts that Seller may
owe to 110 and/or third party(s) as of the Effective Date of this
WHEREAS, Seller is desirous to sell to 110, and 110 is desirous to Agreement. The Prior Balance, if any, is described in Section 18 of
purchase from Seller a Specified Percentage of the Seller’s Future this Agreement and will be deducted from the Purchase Price prior
Receipts, but only on the terms and conditions set forth in this to delivering it to Seller pursuant to Seller’s authorization set forth
Agreement. in Rider 2 to this Agreement, provided nevertheless that such
deduction shall not be deemed to reduce the agreed upon Purchase
NO W, THEREFORE, for good and valuable consideration, the Price.
mutual receipts and sufficiency of which is hereby acknowledged
by both parties, 110 and Seller hereby agree to the foregoing and k . “Origination Fee” shall mean the fee that Seller and a Broker have
as follows: agreed to in conjunction with brokering this Agreement, which
amount Seller authorizes 110 to withhold from the Purchase Price
1.Basic Terms and Definitions. and pay to said Broker. The Origination Fee, if any, is described in
Section 19 of this Agreement and will be deducted from the
a. “Effective Date” shall mean the later of: (i) the date set forth in
Purchase Price prior to delivering it to Seller pursuant to Seller’s
the preamble to this Agreement, and (ii) the date when 110 paid
authorization set forth in Rider 3 to this Agreement, provided
the Purchase Price to Seller.
nevertheless that such deduction shall not be deemed to reduce
four
b . “Specified Percentage” shall mean _______________________ the agreed upon Purchase Price.
(4 %) of each and every sum from sale made by Seller of Future
l . In the event “Seller” is comprised of more than one entity, then:
Receipts.
i. The term “Seller” shall mean, individually and collectively, all such
c . “Future Receipts” shall mean, collectively, all of Seller’s receipts
entities; and
of monies for the sale of its goods and services that monies shall
be paid and delivered to Seller by Seller’s customers and/or ii. Each Seller is an “Affiliate” of all other Seller(s). The term
other vendees after the Effective Date of this Agreement; which “Affiliate” shall mean an entity or an individual that (1) controls, (2)
payments or deliveries of monies can be made in the form of cash, is under the “Control”, or (3) is under common Control with the
check, credit, charge, or debit card, ACH or other electronic transfer entity or individual in question. The term “Con trol” shall mean
or any other form of monetary payment and/or pecuniary benefit direct or indirect ownership of more than 50% of the outstanding
received by Seller. voting stock of a corporation or other majority equity interest if not
d . “Daily Receipts” shall mean the amount of Future Receipts a corporation and the possession of power to direct or cause the
direction of the management and policy of such corporation or
received by Seller on a daily basis.
other entity, whether through ownership of voting securities, by
e. “Purchased Amount” shall mean the total amount of the Specified stature, or by contract; and
Percentage of the Future Receipts that Seller shall be under
iii. The representations, warranties, covenants, obligations and
obligation to deliver and pay over to 110 pursuant to this
liabilities of each Seller shall be joint and several under this
Agreement. The parties agree that the Purchased Amount shall be
Agreement; and
$___________________
7,345 .
iv. The liability of each Seller under this Agreement shall be direct
f. “Purchase Price” shall mean the total amount that 110 agrees to
and immediate and shall not be conditional or contingent upon the
pay for the Purchased Amount. Note that the amount that Seller
pursuance of any remedies against any other person or entity; and
will actually receive from 110 pursuant to this Agreement will be
less than the Purchase Price by the total sum of the Applicable Fees, v. The terms “Specified Percentage”, “Future Receipts”, “Daily
Prior Balance and the Origination Fee, if any, as set forth in Receipts”, “Initial Daily Installment” shall mean the Specified
subparagraphs I., j. and k. below. The parties agree that the Percentage, the Future Receipts and the Daily Receipts of each
5,000
Purchase Price shall be $____________________ . Seller individually; and
g. “Initial Daily Installment” shall mean the fixed amount that Seller vi . 110 may pursue its rights and remedies under this Agreement
and 110 agree to be a good faith approximation of the Specified against any one or any number of entities that constitute Seller
Percentage of Seller’s Daily Future Receipts. Seller and 110 further without obligation to assert, prosecute or exhaust any remedy or
agree that, based upon the information provided by Seller to 110 claim against any other Seller or any Guarantor.
concerning Seller’s most recent accounts receivables, including
representations by the Seller to 110 regarding the Seller’s m . In the event “Guarantor” is comprised of more than one
estimated Future Receipts, and subject to Seller’s right of individual, then:
adjustment/reconciliation set forth in this Agreement, as of the
i. The term “Guarantor” shall mean, individually and collectively, all
Effective Date the Initial Daily Installment shall be
such individuals; and
36.73
$________________ .
ii. Each Guarantor is an Affiliate of all other Guarantor(s); and
h . “Workday” shall mean Monday through Friday except on days
when banking institutions are closed for the holidays and do not iii. The representations, warranties, covenants, obligations and
process ACH payments. liabilities of each Guarantor shall be joint and several under this
Agreement and the Guaranty; and
i . “Applicable Fees” shall mean, collectively, all initial costs and fees
that Seller agrees to pay to 110 as consideration for agreeing to i v. The liability of each Guarantor under this Agreement and the
enter into this Agreement and that are described in Section 17 of Guaranty shall be direct and immediate and shall not be conditional
this Agreement. The total sum of the Applicable Fees will be
deducted from the Purchase Price prior to delivering it to Seller
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or contingent upon the pursuance of any remedies against any into the Approved Bank Account. In the event the Approved Bank
other person or entity; and Account or Approved Processor shall become unavailable or
shall cease providing services to Seller during the term of this
v. 110 may pursue its rights and remedies under this Agreement Agreement, prior to the first date of such unavailability or
and/or Guaranty against any one or any number of individuals that cessation of services, Seller shall arrange for another Approved
constitute Guarantor without obligation to assert, prosecute or Bank Account or Approved Processor, as the case may be.
exhaust any remedy or claim against any other Guarantor or any
Seller. 8. Au thorization to Debit Approved B ank Account. Seller hereby
authorizes 110 to initiate electronic checks or ACH debits from the
Approved Bank Account (which as of the Effective Date of this
Agreement shall be the account listed on Appendix A hereto) in the
2. The Term. This Agreement for the purchase and sale of Future
amount of the Initial Daily Installment on each Workday
Receipts does not have a fixed duration or term, which is potentially
commencing on the Effective Date until 110 receives the full
infinite. Subject to the provisions of Sections 1013 hereof, the
term of this Agreement shall commence on the Effective Date Purchased Amount. Seller shall provide 110 with all access code(s)
and expire on the date (the “Expiration Date”) when the for the Approved Bank Account.
Purchased Amount and all other sums due to 110 pursuant to 9. F ees Associated with Debiting Approved Bank Account. It shall
this Agreement are received by 110 in full. be Seller’s exclusive responsibility to pay to its banking institution
3. Sale o f Purchased Future Receipts. Seller hereby sells, assigns, and/or 110’s banking institution directly (or to compensate 110,
transfers and conveys (hereinafter, the “Sale”) unto 110 all of in case it is charged) all fees, charges and expenses incurred by
Seller’s right, title and interest in to the Specified Percentage of the either Seller or 110 due to rejected electronic checks or ACH debit
Future Receipts until the Purchased Amount shall have been attempts, overdrafts or rejections by Seller’s banking institution of
the transactions contemplated by this Agreement, including
delivered by Seller to 110 (hereinafter, the portion of the
without limitation a $35.00 charge per bounced or rejected ACH
Future Receipts sold by Seller to 110 pursuant to this
debit.
Agreement, the “Purchased Future Receipts”); to have and hold
the same unto 110, its successors and assigns, forever. This Sale 10. Sel ler’s Ri ght fo r Rec onciliation. Seller and 110 each
of the Purchased Future Receipts is made without express or acknowledges and agrees that:
implied warranty to 110 of collectability of the Purchased Future
Receipts by 110 and without recourse against Seller and/or a. If at any time during the term of this Agreement Seller will
Guarantor(s), except as specifically set forth in this Agreement. By experience unforeseen decrease or increase in its Daily Receipts,
virtue of this Agreement, Seller transfers to 110 full and complete Seller shall have the right, at its sole and absolute discretion, but
ownership of the Purchased Future Receipts and Seller retains no subject to the provisions of Section 11 below, to request
legal or equitable interest therein. retroactive, reconciliation of the Initial Daily Installments for one (1)
full calendar month immediately preceding the day when such
4. Payment of Purchase Price. In consideration of the sale by Seller request for reconciliation is received by 110 (each such calendar
to 110 of the Purchased Future Receipts pursuant to this month, a “Reconciliation Month”).
Agreement, 110 agrees to pay to Seller the Purchase Price; the
amount of the Purchase Price (reduced by the Applicable Fees, b . Such reconciliation (the “Reconciliation”) of the Seller’s Initial
Prior Balance, and Origination Fee, if any) shall be delivered to Daily Installment for a Reconciliation Month shall be performed by
Seller after execution of this Agreement. 110 within five (5) Workdays following its receipt of the Seller’s
request for Reconciliation by either crediting or debiting the
5. U se o f Purchase Price. Seller hereby acknowledges that it fully difference back to, or from, the Approved Bank Account so that
understands that: (i) 110’s ability to collect the Purchased Amount the total amount debited by 110 from the Approved Bank
(or any portion thereof) is contingent upon Seller’s continued Account during the Reconciliation Month at issue is equal to the
operation of its business and successful generation of the Futu re Specific Percentage of the Future Receipts that Seller collected
Receipts until the Purchased Amount is delivered to 110 in full; and during the Reconciliation Month at issue.
(ii) that in the event of decreased efficiency or total failure of Seller’s
business 110’s receipt of the full or any portion of the Purchased c . One or more Reconciliation procedures performed by 110
Amount may be delayed indefinitely. Based upon the forgoing, may reduce or increase the effective Initial Daily Installment
Seller agrees to use the Purchase Price exclusively for the benefit amount during the Reconciliation Month in comparison to the one
and advancement of Seller’s business operations and for no other set forth in Section 1 of this Agreement, and, as the result of such
purpose. reduction, the term of this Agreement during which 110 will be
debiting the Approved Bank Account may get shortened or
6. In itial Daily Installments o f Purchased Amount. The Purchased extended indefinitely.
Amount shall be delivered by Seller to 110 daily in the amount of
the Initial Daily Installment on each and every Workday 11. Request for Reconciliation Procedure.
commencing on the Effective Date and ending on the Expiration
Date. a. It shall be Seller’s sole responsibility and the right hereunder to
initiate Reconciliation of Seller’s actual Initial Daily Installments
7. Approved Bank Account and Credit Card Processor. During the during any Reconciliation Month by sending a request for
term of this Agreement, Seller shall: (i) deposit all Future Receipts Reconciliation to 110.
into one (and only one) bank account which bank account shall
be acceptable and preapproved by 110 (the “Approved Bank b. Any such request for Reconciliation of the Seller’s Initial
Account”), (ii) use one (and only one) credit card processor Daily Installments for a specific Reconciliation Month shall be in
which processor shall be acceptable and preapproved by 110 writing, shall include a copy of Seller’s bank statement and
(the “Approved Processor”) and (iii) deposit all credit card receipts credit card processing statements for the Reconciliation Month
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at issue, and shall be received by 110 via email to comparison to the amount that would have been debited during
reconciliation@110funding.com, with the subject line “REQUEST that month without Reconciliation.
FOR RECONCILIATION,” within five (5) Workdays after the last
day of the Reconciliation Month at issue (time being of the essence c . One or more Adjustments performed by 110 may substantially
as to the last day of the period during which such demand for extend the term of this Agreement.
Reconciliation shall be received by 110). 13. Request for Adjustment Procedure.
c . 110’s receipt of Seller’s request for Reconciliation after the
a. It shall be Seller’s sole responsibility and the right to initiate the
expiration of the five (5) Workday period following the last day of
Adjustment by sending a request for Adjustment to 110.
the Reconciliation Month for which such Reconciliation is
requested nullifies and makes obsolete Seller’s request for b . A request for Adjustment (an “Adjustment Request”) shall be in
Reconciliation for that specific Reconciliation Month. writing, and shall include copies of: (i) Seller’s last three (3)
consecutive bank statements of the Approved Bank Account
d . Commencing thirty (30) days after the Effective Date of this
and credit card processing statements immediately preceding the
Agreement, Seller shall have the right to request Reconciliation as date of 110’s receipt of the Adjustment Request, and (ii) Seller’s
many times during the term of this Agreement as it deems proper,
bank statements and credit card processing statements previously
and 110 shall comply with each such request, provided that: provided by Seller to 110 based upon which statements the
i. Each such request is made in accordance with the terms of this amount of the Initial Daily Installment set forth in Section 1 above
Section 11; and (or the then current Adjusted Daily Installment, as the case may
be) was determined, and shall be received by 110 by email at
ii. If a request for Reconciliation is made after the expiration of the reconciliation@110funding.com, with the subject line “REQUEST
term of this Agreement and, as the result of such Reconciliation, FOR ADJUSTMENT,” within five (5) Workdays after the date that
the total amount actually debited by 110 from the Approved Bank is the later of (i) the last day of the latest bank statement enclosed
Account will become less than the Purchased Amount, then and in with the Adjustment Request and (ii) the last date of the latest credit
such event the term of this Agreement shall automatically be card processing statement enclosed with the Adjustment Request
extended until the time when the total amount actually debited (time being of the essence as to the last day of the period during
from Approved Bank Account pursuant to this Agreement shall which an Adjustment Request shall be received by 110).
become equal to the Purchased Amount.
c . 110’s receipt of a Seller’s Adjustment Request after the
e. Nothing set forth in Sections 10 or 11 of this Agreement expiration of the above referenced five (5) Workday period
shall be deemed to: (i) provide Seller with the right to interfere nullifies and makes obsolete such Adjustment Request.
with 110’s right and ability to debit the Approved Bank
Account while the request for Reconciliation of Seller’s receipts d . Seller shall have the right to request Adjustment of the Initial
is pending or until the Purchased Amount is collected by 110 Daily Installment, or the Adjusted Daily Installment (as the case may
in full, or (ii) modify the amount of the Initial Daily Installment be), as many times during the term of this Agreement as it deems
for any calendar month during the term of this Agreement other proper, and 110 shall comply in good faith with such request,
than during the Reconciliation Month (s) as the result of the provided that:
Reconciliation.
i. Each such request for Adjustment is made in accordance with the
12. Adjustment of the Initial Daily Installment. Seller and 110 each terms of this Section 13; and
ac knowledge and agree that: ii. A request for Adjustment shall not be made after the Expiration
a. If at any time during the term of this Agreement Seller Date.
experiences a steady decrease in its Daily Receipts, as long as Seller e. Nothing set forth in Sections 12 or 13 of this Agreement
is not in default under the terms of this Agreement, Seller shall have
shall be deemed to provide Seller with the right to (i) interfere
the right, at its sole and absolute discretion, but subject to with 110’s right and ability to debit the Approved Bank Account
the provisions of Section 13 below, to request modification while the request for Adjustment is pending or until the Purchased
(“Adjustment”) of the amount of the Initial Daily Installment that Amount is collected by 110 in full or (ii) request Adjustment
Seller is obligated to deliver daily to 110 in accordance with retroactively for the portion of the term of this Agreement
the provisions of Section 6 above. Such Adjustment shall become preceding the date of an Adjustment Request.
effective as of the date it is granted and the new adjusted amount
of the Initial Daily Installment (the “Adjusted Daily Installment”) shall 14. Seller’s Ri ght to Accelerate Remittance o f the Outstanding
replace and supersede the amount of the Initial Daily Installment Po rtion of the Purchased Amount of Future Receipts (“Outstanding
set forth in Section 1 above. PAF R”).
b . The Adjustment of the Initial Daily Installment shall be a. Notwithstanding anything to the contrary set forth in this
performed by 110 within five (5) Workdays following its receipt Agreement, Seller shall have the right, at any time after receipt from
of the Seller’s request for Adjustment by modifying the amount 110 of the Purchase Price, and upon obtaining 110’s prior written
of the Initial Daily Installment that shall be debited from the consent, to accelerate delivery to 110 of the then undelivered
Approved Bank Account until the Purchased Amount is paid in portion of the Purchased Amount of Future Receipts (such amount,
full. Notwithstanding anything to the contrary set forth in the “Outstanding PAFR”). The delivery of the Outstanding PAFR
Sections 12 and 13 hereof, no Adjustment shall take place until shall be governed by the following subparagraphs.
and unless Reconciliation for at least one (1) Reconciliation
Month takes place resulting in the reduction of the total amount b . The Outstanding PAFR can only be delivered in full and not
debited from Seller’s Approved Bank Account during the partially.
Reconciliation Month by at least fifteen percent (15%) in
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c . Seller shall request the right to accelerate the delivery of the for, and as an adequate and sufficient consideration for, 110
Outstanding PAFR by notifying 110 to that effect; provided granting Seller the right to accelerate the payment of the
that such notice shall be in writing (an email delivery shall be Purchased Amount of Future Receipts.
deemed acceptable) and shall contain the information on the
source(s) of the funds to be used for delivery of the Outstanding 16. Risk Sharing Acknowledgments and Arrangements.
PAFR and on the approximate date of such delivery. a. Seller and 110 each hereby acknowledges and agrees that:
d . 110 shall respond to Seller’s request within five (5) Workdays
i. The Purchased Future Receipts represent a portion of Seller’s
from the date of its receipt by 110.
Future Receipts.
e. In its response to Seller’s request, 110 shall indicate the exact
ii. This Agreement consummates the sale of the Purchased Future
amount of the Outstanding PAFR as of the date of its delivery by Receipts at a discount, not the borrowing of funds by Seller from
Seller. 110. 110 does not charge Seller and will not collect from Seller any
f. As of the date agreed upon as between 110 and Seller, Seller shall interest on the monies used by 110 for the purchase of the
deliver to 110 the full amount of the Outstanding PAFR (such date, Purchased Future Receipts. The period of time that it will take 110
the “Accelerated Delivery Date”). to collect the Purchased Amount is not fixed, is unknown to both
parties as of the Effective Date of this Agreement and will depend
g. Under no circumstances shall Seller suspend or modify, or cause on how well or not well Seller’s business will be performing
to be suspended or modified, the delivery to 110 of the Initial Daily following the Effective Date. As an extreme example, in the event
Installments prior to the delivery of the Outstanding PAFR to 110. Seller’s business ceases to exist after 110’s purchase of the
Purchased Future Receipts as a result of a drying up of
h . Upon delivery of the Outstanding PAFR to 110 in compliance revenues for reasons outside Seller’s control, 110 may never
with the provisions of this Section 14, Seller’s obligations to 110 collect all or a substantial portion of the Purchased Future Rec eipts
pursuant to this Agreement shall be deemed completed and and will never recover the moneys it spent on such purchase.
fulfilled.
iii. The amount of the Initial Daily Installment set forth in
15. Rights and Obligations o f 110 Upon Receipt of the Outstanding Section 1 of this Agreement is calculated based upon the
PAF R. Upon receipt of the full amount of the Outstanding PAFR: information concerning an average amount of Daily Recei pts
a. 110 shall notify the Approved Bank Account and request from it collected by Seller’s business immediately prior to the Effective
to stop transferring Initial Daily Installments to 110’s bank account. Date of this Agreement, as well as representations regarding
the Seller’s estimated Future Receipts, which information was
b . If 110 shall have received one or more Initial Daily Installment (or provided by the Seller to 110.
Adjusted Daily Installment, as the case may be) after the
Accelerated Delivery Date (due to the Approved Bank’s delay in iv. The amounts of Seller’s future Daily Receipts may increase or
decrease over time.
processing 110’s request described in subparagraph (a) above or
for any other reason), 110 shall immediately do one of the two v. If, based upon Reconciliation and/or the Adjustment procedures
following things (but not both): described above, it will be determined that the actual daily amounts
i. Return to Seller the total sum of the Initial Daily Installments (or of the Specified Percentage of the Future Receipts get reduced in
the Adjusted Daily Installments, as the case may be) received by comparison to the amount of the Initial Daily Installment as of the
110 after the date of delivery of the Outstanding PAFR to 110; or Effective Date set forth in Section 1 of this Agreement, and in
comparison to the amount that both Seller and 110 may have
ii. Apply the total sum of the Initial Daily Installments (or the anticipated or projected because Seller’s business has slowed
Adjusted Daily Installments, as the case may be) received by 110 down, or if the full Purchased Amount is not remitted because
after the Accelerated Delivery Date toward Seller’s outstanding Seller’s business went bankrupt or otherwise ceased operations
financial obligations to 110 existing as of the Accelerated Delivery in the ordinary course of business (but not due to Seller’s willful
Date for reasons unrelated to this Agreement (if any). or negligent mishandling of its business or due to Seller’s failure to
comply with its obligations under this Agreement), Seller would not
A. By way of example, if as of the Accelerated Delivery be in breach of or in default under this Agreement.
Date, Seller and 110 would be parties to a another future
receivables sale and purchase agreement in connection with a b . 110’s Risk Acknowledgments. 110 agrees to purchase the
portion of Seller’s Future Receipts that is not subject to this Purchased Future Receipts knowing the risks that Seller’s
Agreement (such agreement, an “Unrelated Future Agreement”), business may slow down or fail, and 110 assumes this risk based
then and in such event 110 may, in its sole and absolute discretion, exclusively upon the information provided to it by Seller and related
apply the sum of the Initial Daily Installments (or the Adjusted to the business operations of Seller’s business prior to the date
Daily Installments, as the case may be) received by 110 after hereof, and upon Seller’s representations, warranties and
the Accelerated Delivery Date pursuant to this Agreement toward covenants contained in this Agreement that are designed to
fulfilling Seller’s obligations to 110 pursuant to the Unrelated give 110 a reasonable and fair opportunity to receive the
Future Agreement. benefit of its bargain. Furthermore, 110 hereby acknowledges
and agrees that Seller shall be excused from performing its
c . Seller acknowledges and agrees that 110 shall have the right to obligations under this Agreement in the event Seller’s business
apply the total sum of the Initial Daily Installments (or Adjusted ceases its operations exclusively due to the following reasons
Daily Installments, as the case may be) received by 110 after (collectively, the “Valid Excuses”):
the Accelerated Delivery Date toward Seller’s outstanding
financial obligations to 110 existing as of the Accelerated Delivery
Date for reasons unrelated to this Agreement (if any) in exchange
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i. adverse business conditions that occurred for reasons outside 20. No Reduction of Purchase Price. Seller hereby: (i) agrees to pay
Seller’s control and not due to Seller’s willful or negligent the Applicable Fee, the Prior Balance and the Origination Fee (the
mishandling of its business; sum of those, hereinafter, the “Closing Costs”) in full;
ii. loss of the premises where the business operates (but not (ii) hereby authorizes 110 to apply a portion of the Purchase Price
due to Seller’s breach of its obligations to its landlord), provided due to Seller pursuant to this Agreement toward satisfaction of
however that Seller does not continue and/or resume business Seller’s obligation to pay the Closing Costs by deducting the
operations at another location; amount of the Agreement Fees from the Purchase Price prior to
delivering it to Seller; and
iii. bankruptcy of Seller; and/or
(iii) agrees that deduction of the Closing Costs from the Purchase
iv. natural disasters or similar occurrences beyond Seller’s control. Price shall not be deemed to be a reduction of the Purchase Price.
c . Application of Amounts Received by 110. 110 reserves the
right to apply amounts received by it under this Agreement to
any fees or other charges due to 110 from Seller prior to REPRESENTATIONS, WARRANTIES AND COVENANTS
applying such amounts to reduce the outstanding amount of the
Purchased Amount. Any ACH payments and/or payments which 21. Seller represents, warrants and covenants that as of this date
clear after the Effective Date of this Agreement shall be applied to and during the term of this Agreement:
the balance hereunder. a. Financial Condition and Financial Information. Seller’s bank and
d . Not a Loan. Seller and 110 agree that the Purchase Price is paid financial statements, copies of which have been furnished to 110,
to Seller in consideration for the acquisition of the Purchased and future statements which may be furnished hereafter pursuant
Future Receipts and that payment of the Purchase Price by 110 is to this Agreement or upon 110’s request, fairly represent the
not intended to be, nor shall it be construed as, a loan from 110 to financial condition of Seller as of the dates such statements were
Seller that requires absolute and unconditional repayment on a issued, and prior to execution of the Agreement there has been no
maturity date. To the contrary, 110’s ability to receive the material adverse changes, financial or otherwise, in such condition,
Purchased Amount pursuant to this Agreement, and the date when operation or ownership of Seller. Seller has a continuing, affirmative
the Purchased Amount is delivered to 110 in full (if ever) are subject obligation to advise 110 of any material adverse change in its
to and conditioned upon performance of Seller’s business. If, financial condition, operation or ownership, and/or online banking
nevertheless, a court having jurisdiction over this Agreement and login credentials. 110 may request Seller’s bank statements at any
the parties hereto shall have determined that 110 has charged time during the term of this Agreement and Seller shall provide
or received interest hereunder in excess of the highest rate them to 110 within five (5) Workdays. Seller’s failure to do so,
allowed by law, then the rate of such interest received by 110 shall and/or cutting off 110’s online access to the Approved Bank
automatically be reduced to the maximum rate permitted by Account, is a material breach of this Agreement.
applicable law and 110 shall promptly refund to Seller any interest
b . Governmental Approvals. Seller is in compliance and, during the
received by 110 in excess of the maximum lawful rate.
term of this Agreement, shall be in compliance with all laws and has
17. Applicable Fees. Seller acknowledges that the Applicable Fees valid permits, authorizations and licenses to own, operate and lease
were agreed upon between Seller and 110 prior to Seller entering its properties and to conduct the business in which it is presently
into this Agreement, were subject to armlength negotiation eng
Preview
FILED: MONROE COUNTY CLERK 04/11/2024 04:46 PM INDEX NO. E2024006273 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/11/2024 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3820868 Book Page CIVIL Return To: No. Pages: 20 ARIEL BOUSKILA 1545 US 202 Instrument: EXHIBIT(S) Suite 101 Pomona, NY 10970 Control #: 202404111876 Index #: E2024006273 Date: 04/11/2024 110 EFFORT 1000 OF THE TIME Time: 5:20:40 PM GLOBALSHOP, INC. ACCESORY WORKSHOP LLC JERSEY BEST BUDS DISPENSARY CO. BAUMAN, GARY 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 202404111876 Index #NO. INDEX : E2024006273 E2024006273 FILED: MONROE COUNTY CLERK 04/11/2024 04:46 PM THE NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/11/2024 CONTRACT Future Receivables Sale and Purchase Agreement Founded: 2006 This agreement (this “Agreement”), dated 6/7/2023 ______________________, between 110% EFFORT, 1000% OF THE TIME LLC (“110”) and the seller(s) listed herein (collectively, the "Seller”) (all capitalized terms shall have the meanings ascribed to them below): Staff: 85 Globalshop, Inc. 79 Chestnut Street, Suite 101 Customers: B U SINESS LEGAL NAME: _____________________________ PHYSICAL ADDRESS: _______________________________________ 168 Ridgewood NJ 07450 B U SINESS DBA NAME: _______________________________ ____________________________ ________ ______________ PO BOX 1211 Corporation B U SINESS ENTITY TYPE: _____________________________ MAILING ADDRESS: _______________________________________ Ridgewood NJ 07450 EIN NUMBER: _________________________ ____________________________ ________ ______________ <><><> 5,000 PU RCHASE PRICE $__________________ 7,345 PU RCHASED AMOUNT $__________________ 4 SPECIFIED PERCENTAGE _____________ % 36.73 INITIAL DAILY INSTALLMENT $______________ <><><> Seller #1 Seller #2 B y: _______________________________________ B y: _______________________________________ Gary Bauman Name: ____________________________________ Name: ____________________________________ Title: Owner/Manager Title: Owner/Manager Co ncurrently with the execution of this Agreement by Seller, and as condition to the effectiveness hereof, Seller has caused th e Personal Guarantee of Performance in the form attached hereto as “Exhibit A” (the “Guaranty”) to be signed and d elivered to 110 by the following Owner(s)/Guarantor(s) of Seller. Owner/Guarantor # 1 Owner/Guarantor #2 B y: _______________________________________ B y: ______________________________________ Gary Bauman Name: ____________________________________ Name: ____________________________________ Title: Owner/Manger Title: Owner/Manger SSN: _________________________ SSN: _____________________________________ (201) 444-7204 Phone: ___________________________________ Phone: ____________________________________ Doc ID: c2dd3834701741c1c5ff69cd7e4e334a21ef73e4 202404111876 IndexNO. INDEX #: E2024006273 E2024006273 FILED: MONROE COUNTY CLERK 04/11/2024 04:46 PM NYSCEF DOC. inNO. Furthermore, the 3event the Seller and/or Guarantor are RECEIVED pursuant to Seller’s authorization NYSCEF: set forth 04/11/2024 in Rider 1 to this comprised of more than one entity and/or individuals, then ALL Agreement, provided nevertheless that such deduction shall not be such entities and/or individuals, respectively, shall sign the deemed to reduce the agreed upon Purchase Price. Addendum to this Agreement in the form attached hereto as Exhibit B (the “Addendum”). j . “Prior Balance” shall mean the sum of all amounts that Seller may owe to 110 and/or third party(s) as of the Effective Date of this WHEREAS, Seller is desirous to sell to 110, and 110 is desirous to Agreement. The Prior Balance, if any, is described in Section 18 of purchase from Seller a Specified Percentage of the Seller’s Future this Agreement and will be deducted from the Purchase Price prior Receipts, but only on the terms and conditions set forth in this to delivering it to Seller pursuant to Seller’s authorization set forth Agreement. in Rider 2 to this Agreement, provided nevertheless that such deduction shall not be deemed to reduce the agreed upon Purchase NO W, THEREFORE, for good and valuable consideration, the Price. mutual receipts and sufficiency of which is hereby acknowledged by both parties, 110 and Seller hereby agree to the foregoing and k . “Origination Fee” shall mean the fee that Seller and a Broker have as follows: agreed to in conjunction with brokering this Agreement, which amount Seller authorizes 110 to withhold from the Purchase Price 1.Basic Terms and Definitions. and pay to said Broker. The Origination Fee, if any, is described in Section 19 of this Agreement and will be deducted from the a. “Effective Date” shall mean the later of: (i) the date set forth in Purchase Price prior to delivering it to Seller pursuant to Seller’s the preamble to this Agreement, and (ii) the date when 110 paid authorization set forth in Rider 3 to this Agreement, provided the Purchase Price to Seller. nevertheless that such deduction shall not be deemed to reduce four b . “Specified Percentage” shall mean _______________________ the agreed upon Purchase Price. (4 %) of each and every sum from sale made by Seller of Future l . In the event “Seller” is comprised of more than one entity, then: Receipts. i. The term “Seller” shall mean, individually and collectively, all such c . “Future Receipts” shall mean, collectively, all of Seller’s receipts entities; and of monies for the sale of its goods and services that monies shall be paid and delivered to Seller by Seller’s customers and/or ii. Each Seller is an “Affiliate” of all other Seller(s). The term other vendees after the Effective Date of this Agreement; which “Affiliate” shall mean an entity or an individual that (1) controls, (2) payments or deliveries of monies can be made in the form of cash, is under the “Control”, or (3) is under common Control with the check, credit, charge, or debit card, ACH or other electronic transfer entity or individual in question. The term “Con trol” shall mean or any other form of monetary payment and/or pecuniary benefit direct or indirect ownership of more than 50% of the outstanding received by Seller. voting stock of a corporation or other majority equity interest if not d . “Daily Receipts” shall mean the amount of Future Receipts a corporation and the possession of power to direct or cause the direction of the management and policy of such corporation or received by Seller on a daily basis. other entity, whether through ownership of voting securities, by e. “Purchased Amount” shall mean the total amount of the Specified stature, or by contract; and Percentage of the Future Receipts that Seller shall be under iii. The representations, warranties, covenants, obligations and obligation to deliver and pay over to 110 pursuant to this liabilities of each Seller shall be joint and several under this Agreement. The parties agree that the Purchased Amount shall be Agreement; and $___________________ 7,345 . iv. The liability of each Seller under this Agreement shall be direct f. “Purchase Price” shall mean the total amount that 110 agrees to and immediate and shall not be conditional or contingent upon the pay for the Purchased Amount. Note that the amount that Seller pursuance of any remedies against any other person or entity; and will actually receive from 110 pursuant to this Agreement will be less than the Purchase Price by the total sum of the Applicable Fees, v. The terms “Specified Percentage”, “Future Receipts”, “Daily Prior Balance and the Origination Fee, if any, as set forth in Receipts”, “Initial Daily Installment” shall mean the Specified subparagraphs I., j. and k. below. The parties agree that the Percentage, the Future Receipts and the Daily Receipts of each 5,000 Purchase Price shall be $____________________ . Seller individually; and g. “Initial Daily Installment” shall mean the fixed amount that Seller vi . 110 may pursue its rights and remedies under this Agreement and 110 agree to be a good faith approximation of the Specified against any one or any number of entities that constitute Seller Percentage of Seller’s Daily Future Receipts. Seller and 110 further without obligation to assert, prosecute or exhaust any remedy or agree that, based upon the information provided by Seller to 110 claim against any other Seller or any Guarantor. concerning Seller’s most recent accounts receivables, including representations by the Seller to 110 regarding the Seller’s m . In the event “Guarantor” is comprised of more than one estimated Future Receipts, and subject to Seller’s right of individual, then: adjustment/reconciliation set forth in this Agreement, as of the i. The term “Guarantor” shall mean, individually and collectively, all Effective Date the Initial Daily Installment shall be such individuals; and 36.73 $________________ . ii. Each Guarantor is an Affiliate of all other Guarantor(s); and h . “Workday” shall mean Monday through Friday except on days when banking institutions are closed for the holidays and do not iii. The representations, warranties, covenants, obligations and process ACH payments. liabilities of each Guarantor shall be joint and several under this Agreement and the Guaranty; and i . “Applicable Fees” shall mean, collectively, all initial costs and fees that Seller agrees to pay to 110 as consideration for agreeing to i v. The liability of each Guarantor under this Agreement and the enter into this Agreement and that are described in Section 17 of Guaranty shall be direct and immediate and shall not be conditional this Agreement. The total sum of the Applicable Fees will be deducted from the Purchase Price prior to delivering it to Seller Doc ID: c2dd3834701741c1c5ff69cd7e4e334a21ef73e4 202404111876 IndexNO. INDEX #: E2024006273 E2024006273 FILED: MONROE COUNTY CLERK 04/11/2024 04:46 PM NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/11/2024 or contingent upon the pursuance of any remedies against any into the Approved Bank Account. In the event the Approved Bank other person or entity; and Account or Approved Processor shall become unavailable or shall cease providing services to Seller during the term of this v. 110 may pursue its rights and remedies under this Agreement Agreement, prior to the first date of such unavailability or and/or Guaranty against any one or any number of individuals that cessation of services, Seller shall arrange for another Approved constitute Guarantor without obligation to assert, prosecute or Bank Account or Approved Processor, as the case may be. exhaust any remedy or claim against any other Guarantor or any Seller. 8. Au thorization to Debit Approved B ank Account. Seller hereby authorizes 110 to initiate electronic checks or ACH debits from the Approved Bank Account (which as of the Effective Date of this Agreement shall be the account listed on Appendix A hereto) in the 2. The Term. This Agreement for the purchase and sale of Future amount of the Initial Daily Installment on each Workday Receipts does not have a fixed duration or term, which is potentially commencing on the Effective Date until 110 receives the full infinite. Subject to the provisions of Sections 1013 hereof, the term of this Agreement shall commence on the Effective Date Purchased Amount. Seller shall provide 110 with all access code(s) and expire on the date (the “Expiration Date”) when the for the Approved Bank Account. Purchased Amount and all other sums due to 110 pursuant to 9. F ees Associated with Debiting Approved Bank Account. It shall this Agreement are received by 110 in full. be Seller’s exclusive responsibility to pay to its banking institution 3. Sale o f Purchased Future Receipts. Seller hereby sells, assigns, and/or 110’s banking institution directly (or to compensate 110, transfers and conveys (hereinafter, the “Sale”) unto 110 all of in case it is charged) all fees, charges and expenses incurred by Seller’s right, title and interest in to the Specified Percentage of the either Seller or 110 due to rejected electronic checks or ACH debit Future Receipts until the Purchased Amount shall have been attempts, overdrafts or rejections by Seller’s banking institution of the transactions contemplated by this Agreement, including delivered by Seller to 110 (hereinafter, the portion of the without limitation a $35.00 charge per bounced or rejected ACH Future Receipts sold by Seller to 110 pursuant to this debit. Agreement, the “Purchased Future Receipts”); to have and hold the same unto 110, its successors and assigns, forever. This Sale 10. Sel ler’s Ri ght fo r Rec onciliation. Seller and 110 each of the Purchased Future Receipts is made without express or acknowledges and agrees that: implied warranty to 110 of collectability of the Purchased Future Receipts by 110 and without recourse against Seller and/or a. If at any time during the term of this Agreement Seller will Guarantor(s), except as specifically set forth in this Agreement. By experience unforeseen decrease or increase in its Daily Receipts, virtue of this Agreement, Seller transfers to 110 full and complete Seller shall have the right, at its sole and absolute discretion, but ownership of the Purchased Future Receipts and Seller retains no subject to the provisions of Section 11 below, to request legal or equitable interest therein. retroactive, reconciliation of the Initial Daily Installments for one (1) full calendar month immediately preceding the day when such 4. Payment of Purchase Price. In consideration of the sale by Seller request for reconciliation is received by 110 (each such calendar to 110 of the Purchased Future Receipts pursuant to this month, a “Reconciliation Month”). Agreement, 110 agrees to pay to Seller the Purchase Price; the amount of the Purchase Price (reduced by the Applicable Fees, b . Such reconciliation (the “Reconciliation”) of the Seller’s Initial Prior Balance, and Origination Fee, if any) shall be delivered to Daily Installment for a Reconciliation Month shall be performed by Seller after execution of this Agreement. 110 within five (5) Workdays following its receipt of the Seller’s request for Reconciliation by either crediting or debiting the 5. U se o f Purchase Price. Seller hereby acknowledges that it fully difference back to, or from, the Approved Bank Account so that understands that: (i) 110’s ability to collect the Purchased Amount the total amount debited by 110 from the Approved Bank (or any portion thereof) is contingent upon Seller’s continued Account during the Reconciliation Month at issue is equal to the operation of its business and successful generation of the Futu re Specific Percentage of the Future Receipts that Seller collected Receipts until the Purchased Amount is delivered to 110 in full; and during the Reconciliation Month at issue. (ii) that in the event of decreased efficiency or total failure of Seller’s business 110’s receipt of the full or any portion of the Purchased c . One or more Reconciliation procedures performed by 110 Amount may be delayed indefinitely. Based upon the forgoing, may reduce or increase the effective Initial Daily Installment Seller agrees to use the Purchase Price exclusively for the benefit amount during the Reconciliation Month in comparison to the one and advancement of Seller’s business operations and for no other set forth in Section 1 of this Agreement, and, as the result of such purpose. reduction, the term of this Agreement during which 110 will be debiting the Approved Bank Account may get shortened or 6. In itial Daily Installments o f Purchased Amount. The Purchased extended indefinitely. Amount shall be delivered by Seller to 110 daily in the amount of the Initial Daily Installment on each and every Workday 11. Request for Reconciliation Procedure. commencing on the Effective Date and ending on the Expiration Date. a. It shall be Seller’s sole responsibility and the right hereunder to initiate Reconciliation of Seller’s actual Initial Daily Installments 7. Approved Bank Account and Credit Card Processor. During the during any Reconciliation Month by sending a request for term of this Agreement, Seller shall: (i) deposit all Future Receipts Reconciliation to 110. into one (and only one) bank account which bank account shall be acceptable and preapproved by 110 (the “Approved Bank b. Any such request for Reconciliation of the Seller’s Initial Account”), (ii) use one (and only one) credit card processor Daily Installments for a specific Reconciliation Month shall be in which processor shall be acceptable and preapproved by 110 writing, shall include a copy of Seller’s bank statement and (the “Approved Processor”) and (iii) deposit all credit card receipts credit card processing statements for the Reconciliation Month Doc ID: c2dd3834701741c1c5ff69cd7e4e334a21ef73e4 202404111876 IndexNO. INDEX #: E2024006273 E2024006273 FILED: MONROE COUNTY CLERK 04/11/2024 04:46 PM NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/11/2024 at issue, and shall be received by 110 via email to comparison to the amount that would have been debited during reconciliation@110funding.com, with the subject line “REQUEST that month without Reconciliation. FOR RECONCILIATION,” within five (5) Workdays after the last day of the Reconciliation Month at issue (time being of the essence c . One or more Adjustments performed by 110 may substantially as to the last day of the period during which such demand for extend the term of this Agreement. Reconciliation shall be received by 110). 13. Request for Adjustment Procedure. c . 110’s receipt of Seller’s request for Reconciliation after the a. It shall be Seller’s sole responsibility and the right to initiate the expiration of the five (5) Workday period following the last day of Adjustment by sending a request for Adjustment to 110. the Reconciliation Month for which such Reconciliation is requested nullifies and makes obsolete Seller’s request for b . A request for Adjustment (an “Adjustment Request”) shall be in Reconciliation for that specific Reconciliation Month. writing, and shall include copies of: (i) Seller’s last three (3) consecutive bank statements of the Approved Bank Account d . Commencing thirty (30) days after the Effective Date of this and credit card processing statements immediately preceding the Agreement, Seller shall have the right to request Reconciliation as date of 110’s receipt of the Adjustment Request, and (ii) Seller’s many times during the term of this Agreement as it deems proper, bank statements and credit card processing statements previously and 110 shall comply with each such request, provided that: provided by Seller to 110 based upon which statements the i. Each such request is made in accordance with the terms of this amount of the Initial Daily Installment set forth in Section 1 above Section 11; and (or the then current Adjusted Daily Installment, as the case may be) was determined, and shall be received by 110 by email at ii. If a request for Reconciliation is made after the expiration of the reconciliation@110funding.com, with the subject line “REQUEST term of this Agreement and, as the result of such Reconciliation, FOR ADJUSTMENT,” within five (5) Workdays after the date that the total amount actually debited by 110 from the Approved Bank is the later of (i) the last day of the latest bank statement enclosed Account will become less than the Purchased Amount, then and in with the Adjustment Request and (ii) the last date of the latest credit such event the term of this Agreement shall automatically be card processing statement enclosed with the Adjustment Request extended until the time when the total amount actually debited (time being of the essence as to the last day of the period during from Approved Bank Account pursuant to this Agreement shall which an Adjustment Request shall be received by 110). become equal to the Purchased Amount. c . 110’s receipt of a Seller’s Adjustment Request after the e. Nothing set forth in Sections 10 or 11 of this Agreement expiration of the above referenced five (5) Workday period shall be deemed to: (i) provide Seller with the right to interfere nullifies and makes obsolete such Adjustment Request. with 110’s right and ability to debit the Approved Bank Account while the request for Reconciliation of Seller’s receipts d . Seller shall have the right to request Adjustment of the Initial is pending or until the Purchased Amount is collected by 110 Daily Installment, or the Adjusted Daily Installment (as the case may in full, or (ii) modify the amount of the Initial Daily Installment be), as many times during the term of this Agreement as it deems for any calendar month during the term of this Agreement other proper, and 110 shall comply in good faith with such request, than during the Reconciliation Month (s) as the result of the provided that: Reconciliation. i. Each such request for Adjustment is made in accordance with the 12. Adjustment of the Initial Daily Installment. Seller and 110 each terms of this Section 13; and ac knowledge and agree that: ii. A request for Adjustment shall not be made after the Expiration a. If at any time during the term of this Agreement Seller Date. experiences a steady decrease in its Daily Receipts, as long as Seller e. Nothing set forth in Sections 12 or 13 of this Agreement is not in default under the terms of this Agreement, Seller shall have shall be deemed to provide Seller with the right to (i) interfere the right, at its sole and absolute discretion, but subject to with 110’s right and ability to debit the Approved Bank Account the provisions of Section 13 below, to request modification while the request for Adjustment is pending or until the Purchased (“Adjustment”) of the amount of the Initial Daily Installment that Amount is collected by 110 in full or (ii) request Adjustment Seller is obligated to deliver daily to 110 in accordance with retroactively for the portion of the term of this Agreement the provisions of Section 6 above. Such Adjustment shall become preceding the date of an Adjustment Request. effective as of the date it is granted and the new adjusted amount of the Initial Daily Installment (the “Adjusted Daily Installment”) shall 14. Seller’s Ri ght to Accelerate Remittance o f the Outstanding replace and supersede the amount of the Initial Daily Installment Po rtion of the Purchased Amount of Future Receipts (“Outstanding set forth in Section 1 above. PAF R”). b . The Adjustment of the Initial Daily Installment shall be a. Notwithstanding anything to the contrary set forth in this performed by 110 within five (5) Workdays following its receipt Agreement, Seller shall have the right, at any time after receipt from of the Seller’s request for Adjustment by modifying the amount 110 of the Purchase Price, and upon obtaining 110’s prior written of the Initial Daily Installment that shall be debited from the consent, to accelerate delivery to 110 of the then undelivered Approved Bank Account until the Purchased Amount is paid in portion of the Purchased Amount of Future Receipts (such amount, full. Notwithstanding anything to the contrary set forth in the “Outstanding PAFR”). The delivery of the Outstanding PAFR Sections 12 and 13 hereof, no Adjustment shall take place until shall be governed by the following subparagraphs. and unless Reconciliation for at least one (1) Reconciliation Month takes place resulting in the reduction of the total amount b . The Outstanding PAFR can only be delivered in full and not debited from Seller’s Approved Bank Account during the partially. Reconciliation Month by at least fifteen percent (15%) in Doc ID: c2dd3834701741c1c5ff69cd7e4e334a21ef73e4 202404111876 IndexNO. INDEX #: E2024006273 E2024006273 FILED: MONROE COUNTY CLERK 04/11/2024 04:46 PM NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/11/2024 c . Seller shall request the right to accelerate the delivery of the for, and as an adequate and sufficient consideration for, 110 Outstanding PAFR by notifying 110 to that effect; provided granting Seller the right to accelerate the payment of the that such notice shall be in writing (an email delivery shall be Purchased Amount of Future Receipts. deemed acceptable) and shall contain the information on the source(s) of the funds to be used for delivery of the Outstanding 16. Risk Sharing Acknowledgments and Arrangements. PAFR and on the approximate date of such delivery. a. Seller and 110 each hereby acknowledges and agrees that: d . 110 shall respond to Seller’s request within five (5) Workdays i. The Purchased Future Receipts represent a portion of Seller’s from the date of its receipt by 110. Future Receipts. e. In its response to Seller’s request, 110 shall indicate the exact ii. This Agreement consummates the sale of the Purchased Future amount of the Outstanding PAFR as of the date of its delivery by Receipts at a discount, not the borrowing of funds by Seller from Seller. 110. 110 does not charge Seller and will not collect from Seller any f. As of the date agreed upon as between 110 and Seller, Seller shall interest on the monies used by 110 for the purchase of the deliver to 110 the full amount of the Outstanding PAFR (such date, Purchased Future Receipts. The period of time that it will take 110 the “Accelerated Delivery Date”). to collect the Purchased Amount is not fixed, is unknown to both parties as of the Effective Date of this Agreement and will depend g. Under no circumstances shall Seller suspend or modify, or cause on how well or not well Seller’s business will be performing to be suspended or modified, the delivery to 110 of the Initial Daily following the Effective Date. As an extreme example, in the event Installments prior to the delivery of the Outstanding PAFR to 110. Seller’s business ceases to exist after 110’s purchase of the Purchased Future Receipts as a result of a drying up of h . Upon delivery of the Outstanding PAFR to 110 in compliance revenues for reasons outside Seller’s control, 110 may never with the provisions of this Section 14, Seller’s obligations to 110 collect all or a substantial portion of the Purchased Future Rec eipts pursuant to this Agreement shall be deemed completed and and will never recover the moneys it spent on such purchase. fulfilled. iii. The amount of the Initial Daily Installment set forth in 15. Rights and Obligations o f 110 Upon Receipt of the Outstanding Section 1 of this Agreement is calculated based upon the PAF R. Upon receipt of the full amount of the Outstanding PAFR: information concerning an average amount of Daily Recei pts a. 110 shall notify the Approved Bank Account and request from it collected by Seller’s business immediately prior to the Effective to stop transferring Initial Daily Installments to 110’s bank account. Date of this Agreement, as well as representations regarding the Seller’s estimated Future Receipts, which information was b . If 110 shall have received one or more Initial Daily Installment (or provided by the Seller to 110. Adjusted Daily Installment, as the case may be) after the Accelerated Delivery Date (due to the Approved Bank’s delay in iv. The amounts of Seller’s future Daily Receipts may increase or decrease over time. processing 110’s request described in subparagraph (a) above or for any other reason), 110 shall immediately do one of the two v. If, based upon Reconciliation and/or the Adjustment procedures following things (but not both): described above, it will be determined that the actual daily amounts i. Return to Seller the total sum of the Initial Daily Installments (or of the Specified Percentage of the Future Receipts get reduced in the Adjusted Daily Installments, as the case may be) received by comparison to the amount of the Initial Daily Installment as of the 110 after the date of delivery of the Outstanding PAFR to 110; or Effective Date set forth in Section 1 of this Agreement, and in comparison to the amount that both Seller and 110 may have ii. Apply the total sum of the Initial Daily Installments (or the anticipated or projected because Seller’s business has slowed Adjusted Daily Installments, as the case may be) received by 110 down, or if the full Purchased Amount is not remitted because after the Accelerated Delivery Date toward Seller’s outstanding Seller’s business went bankrupt or otherwise ceased operations financial obligations to 110 existing as of the Accelerated Delivery in the ordinary course of business (but not due to Seller’s willful Date for reasons unrelated to this Agreement (if any). or negligent mishandling of its business or due to Seller’s failure to comply with its obligations under this Agreement), Seller would not A. By way of example, if as of the Accelerated Delivery be in breach of or in default under this Agreement. Date, Seller and 110 would be parties to a another future receivables sale and purchase agreement in connection with a b . 110’s Risk Acknowledgments. 110 agrees to purchase the portion of Seller’s Future Receipts that is not subject to this Purchased Future Receipts knowing the risks that Seller’s Agreement (such agreement, an “Unrelated Future Agreement”), business may slow down or fail, and 110 assumes this risk based then and in such event 110 may, in its sole and absolute discretion, exclusively upon the information provided to it by Seller and related apply the sum of the Initial Daily Installments (or the Adjusted to the business operations of Seller’s business prior to the date Daily Installments, as the case may be) received by 110 after hereof, and upon Seller’s representations, warranties and the Accelerated Delivery Date pursuant to this Agreement toward covenants contained in this Agreement that are designed to fulfilling Seller’s obligations to 110 pursuant to the Unrelated give 110 a reasonable and fair opportunity to receive the Future Agreement. benefit of its bargain. Furthermore, 110 hereby acknowledges and agrees that Seller shall be excused from performing its c . Seller acknowledges and agrees that 110 shall have the right to obligations under this Agreement in the event Seller’s business apply the total sum of the Initial Daily Installments (or Adjusted ceases its operations exclusively due to the following reasons Daily Installments, as the case may be) received by 110 after (collectively, the “Valid Excuses”): the Accelerated Delivery Date toward Seller’s outstanding financial obligations to 110 existing as of the Accelerated Delivery Date for reasons unrelated to this Agreement (if any) in exchange Doc ID: c2dd3834701741c1c5ff69cd7e4e334a21ef73e4 202404111876 IndexNO. INDEX #: E2024006273 E2024006273 FILED: MONROE COUNTY CLERK 04/11/2024 04:46 PM NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/11/2024 i. adverse business conditions that occurred for reasons outside 20. No Reduction of Purchase Price. Seller hereby: (i) agrees to pay Seller’s control and not due to Seller’s willful or negligent the Applicable Fee, the Prior Balance and the Origination Fee (the mishandling of its business; sum of those, hereinafter, the “Closing Costs”) in full; ii. loss of the premises where the business operates (but not (ii) hereby authorizes 110 to apply a portion of the Purchase Price due to Seller’s breach of its obligations to its landlord), provided due to Seller pursuant to this Agreement toward satisfaction of however that Seller does not continue and/or resume business Seller’s obligation to pay the Closing Costs by deducting the operations at another location; amount of the Agreement Fees from the Purchase Price prior to delivering it to Seller; and iii. bankruptcy of Seller; and/or (iii) agrees that deduction of the Closing Costs from the Purchase iv. natural disasters or similar occurrences beyond Seller’s control. Price shall not be deemed to be a reduction of the Purchase Price. c . Application of Amounts Received by 110. 110 reserves the right to apply amounts received by it under this Agreement to any fees or other charges due to 110 from Seller prior to REPRESENTATIONS, WARRANTIES AND COVENANTS applying such amounts to reduce the outstanding amount of the Purchased Amount. Any ACH payments and/or payments which 21. Seller represents, warrants and covenants that as of this date clear after the Effective Date of this Agreement shall be applied to and during the term of this Agreement: the balance hereunder. a. Financial Condition and Financial Information. Seller’s bank and d . Not a Loan. Seller and 110 agree that the Purchase Price is paid financial statements, copies of which have been furnished to 110, to Seller in consideration for the acquisition of the Purchased and future statements which may be furnished hereafter pursuant Future Receipts and that payment of the Purchase Price by 110 is to this Agreement or upon 110’s request, fairly represent the not intended to be, nor shall it be construed as, a loan from 110 to financial condition of Seller as of the dates such statements were Seller that requires absolute and unconditional repayment on a issued, and prior to execution of the Agreement there has been no maturity date. To the contrary, 110’s ability to receive the material adverse changes, financial or otherwise, in such condition, Purchased Amount pursuant to this Agreement, and the date when operation or ownership of Seller. Seller has a continuing, affirmative the Purchased Amount is delivered to 110 in full (if ever) are subject obligation to advise 110 of any material adverse change in its to and conditioned upon performance of Seller’s business. If, financial condition, operation or ownership, and/or online banking nevertheless, a court having jurisdiction over this Agreement and login credentials. 110 may request Seller’s bank statements at any the parties hereto shall have determined that 110 has charged time during the term of this Agreement and Seller shall provide or received interest hereunder in excess of the highest rate them to 110 within five (5) Workdays. Seller’s failure to do so, allowed by law, then the rate of such interest received by 110 shall and/or cutting off 110’s online access to the Approved Bank automatically be reduced to the maximum rate permitted by Account, is a material breach of this Agreement. applicable law and 110 shall promptly refund to Seller any interest b . Governmental Approvals. Seller is in compliance and, during the received by 110 in excess of the maximum lawful rate. term of this Agreement, shall be in compliance with all laws and has 17. Applicable Fees. Seller acknowledges that the Applicable Fees valid permits, authorizations and licenses to own, operate and lease were agreed upon between Seller and 110 prior to Seller entering its properties and to conduct the business in which it is presently into this Agreement, were subject to armlength negotiation eng