Preview
INDEX NO. E2024006277
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/11/2024
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3820904
Book Page CIVIL
Return To: No. Pages: 12
ADAM RICHARD NICHOLS
1 Whitehall Street Suite 200 Instrument: EXHIBIT(S)
New York, NY 10004
Control #: 202404111912
Index #: E2024006277
Date: 04/11/2024
CAPYTAL.com Time: 5:29:51 PM
RDM TRUCKING, INC
RDM TRUCKING INC
RDO INTERMODAL
T & M TRANSPORTATION, INC.
RICARDO DANIEL MARTINEZ
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
MOTTA A
ai PK 04 DM INDE&& NOE 2624026206277
D 0 NRO OUN
NYSCEF BOC. NO. 2 RECEIVED NYSCEF: 04/11/2024
EXHIBIT A
DiHExNG E 262046206277
FIEED. MONROE ioe tL /
F: 04/11/2024
REVENUE PURCHASE AGREEMENT
This Revenue Purchase Agreement and Security Agreement and Guaranty of Performance
(‘Agreement”) dated December 6, 2023 between Capytal.com (“CPL”) the Merchant(s) listed
below (“Merchant”) and the Individual(s) listed below (“Guarantor”)
MERCHANT INFORMATION
Merchant's Legal name
RDM TRUCKING, INC
RDM TRUCKING INC/ R D O INTERMODAL
/ T & M TRANSPORTATION, INC.
Type of Entity State of Incorporation / Organization
cop. Oc Osole Prop Other CA
D/B/A
RDM TRUCKING
Physical Address
13214 HELMER DRIVE
City State Zip Business Phone
WHITTIER CA 90602 5623470458
Guarantor(s) Name Cellphone Number Email Address
RICARDO DANIEL MARTINEZ 5623820614 MARTINEZRICARDO2117@YAHOO.COM
Mailing Address
SAME AS ABOVE
City State Zip
Purchase Price Purchased Percent Purchased Amount Payment Frequency Remittance
$ 30,000.00 4 % $ 44,100.00 DAILY $ 519.00
In consideration of payment by CPL to Merchant of the Purchase Price set forth above, Merchant hereby sells, assigns and
transfers to CPL (making CPL the absolute owner) the Purchased Percentage of all of the Merchant's payments, receipts,
settlements and funds paid to or received by or for the account of Merchant from time to time on and after the date hereof in
payment or settlement of Merchant's existing and future accounts, payment intangibles, credit, debit and/or stored value card
transactions, contract rights and other entitlements arising from or relating to the payment of monies from Merchant's customers’
and/or other payors or obligors (the “Future Receipts” or “Receipts” are defined as all payments made by cash, check,
clearinghouse settlement, electronic transfer or other form of monetary payment), for the payments to Merchant as a result of
Merchant's sale of goods and/ or services (the “Transactions”) until the Purchased Amount has been delivered by or on behalf
of Merchant to CPL.
1 Initial { eh
Peep:
MON RD EGO TY TT EDK 77 INDEEXNG
E 2820006206277
SCEF DOC. NO. RECEIVED NYSCEF: 04/11/2024
Merchant is selling a portion of a future revenue stream to CPL at a discount, and is not borrowing money from CPL, therefore
there is no interest rate or payment schedule and no time period during which the Purchased Amount must be collected by
CPL. The Remittance is a good faith estimate of CPL's share of the future revenue stream. Merchant going bankrupt or going out
of business, or experiencing a slowdown in business, or a delay in collecting its receivables, in and of itself, does not constitute a
breach of this Agreement. CPL is entering this Agreement knowing the risks that Merchant's business may not perform as
expected or fail, and CPL assumes these risks based on Merchant's representations, warranties and covenants in this Agreement,
which are designed to give CPL a reasonable and fair opportunity to receive the benefit of its bargain. CPL acknowledges that it
may never receive the Purchased Amount in the event that the Merchant does not generate sufficient revenue. Merchant and
Guarantor(s)(s) are only guaranteeing their performance of the terms of this Revenue Purchase Agreement, and are not
guaranteeing the payment of the Purchased Amount. The initial Remittance shall be as described above. The Remittance is
subject to adjustment as set forth in Paragraph 1.3 and Paragraph 1.4.
CPL will debit the Remittance each business day from only one depositing bank account, which account must be acceptable to,
and pre-approved by, CPL (the “Account’) into which Merchant and Merchant's customers shall remit the Receipts from
each Transaction, until such time as CPL receives payment in full of the Purchased Amount. Merchant hereby authorizes CPL to
ACH debit the agreed Remittance from the Account on the agreed upon Payment Frequency; a daily basis means any day that
is not a United States banking holiday, provided that CPL may collect twice the Remittance amount on the date following such
banking holiday; CPL may alter the Payment Frequency from weekly to daily upon Event of Default or missed Remittance
Merchant agrees not to make or cause debits to the Account (other than in favor of CPL) at any time that would cause the
balance therein on any business day to be insufficient to fund payment in full of the agreed Remittance. The Account may
not be used for any personal, family or household purposes. Merchant will provide CPL with all required access codes and
monthly bank statements regarding the Account so that CPL may monitor the Account. CPL payment of the Purchase
Price shall be deemed the acceptance and performance by CPL of this Agreement. Merchant understands that it is
responsible for ensuring that the agreed Remittance to be debited by CPL remains in the Account and will be held responsible for
any fees incurred by CPL resulting from a rejected ACH attempt or an Event of Default. CPL is not responsible for
any overdrafts or rejected transactions that may result from CPl's ACH debiting the agreed Remittance under the
terms of this Agreement. Notwithstanding anything to the contrary in this Agreement or any other agreement between
CPL and Merchant, upon the occurrence of an Event of Default of the MERCHANT AGREEMENT TERMS AND CONDITIONS the:
Purchased Percentage shall equal 100%. A list of all fees applicable under this Agreement is contained in Appendix A.
THE MERCHANT AGREEMENT “TERMS AND CONDITIONS”, THE “SECURITY AGREEMENT AND GUARANTY”
AND THE “ADMINISTRATIVE FORM HEREOF, ARE ALL HEREBY INCORPORATED IN AND MADE A PART OF THIS
MERCHANT AGREEMENT.
FOR THE MERCHANT (#1) By: FOR THE MERCHANT (#2) By:
RICARDO DANIEL MARTINEZ
Print Name and Title Print Name and Title
[x
DocuSigned by:
751141762905441
Signature Signature
BY GUARANTOR(S) (#1) By: BY GUARANTOR(S) (#2) By:
RICARDO DANIEL MARTINEZ
Print Name and Title Print Name and Title
DocuSigned by:
Ficardo Danil Marines,
751141762905441,
Signature Signature
Capytal.com (“CPL”)
Signature
BY:
Print Name and Title
Initial { rpm
PPro: MONA NITY CLERK 7 0 0
DV INDEEXNG
Pe CEIVED NYSCEF:
E 2820006206277
SCEF DOC. NO. MERCHANT AGE! M RMI ND OND ON Mv 04/11/2024
1 TERMS OF ENROLLMENT IN PROGRAM 6 Transactional History. Merchant authorizes all of its banks, brokers
‘and processor to provide CPL with Merchant's banking, brokerage
Merchant shall (A) and/or processing history to determine qualification or continuation in
execute an agreement acceptable to CPL with a Bank acceptable to this program and for collections purposes. Merchant shall provide CPL
CPL to obtain electronic fund transfer services for the Account, and (8) if with copies of any documents related to Merchant's card processing
applicable, execute an agreement acceptable to CPL with a credit and activity or financial and banking affairs within five days after a request
debit card processor (the “Processor’) instructing the Processor to deposit from CPL
all Receipts into the Account. Merchant shall provide CPL and/or its 1.7_ Indemnification, Merchant and Guarantor(s\(s) hereby jointly and
authorized agent(s) with all of the information, authorizations and severally indemnify and hold harmless CPL and each Processor, their
Passwords necessary for verifying Merchant's receivables, receipts, respective officers, directors, agents and representatives,
deposits and withdrawals into and from the Account. Merchant hereby contractors, affiliates, and shareholders against all losses, damages,
authorizes CPL and/or its agent(s) to withdraw from the Account via ACH costs, claims, liabilities and expenses (including reasonable attomey’s
debit the amounts owed to CPL for the receipts as specified herein and to fees) incurred by any such indemnifying acts
or actions as a direct or
y such amounts to CPL. These authorizations apply not only to the indirect result of (a) claims asserted by CPL for monies owed to CPL
approved Account but also to any subsequent or alternate account used from Merchant and (b) actions taken by indemnitee in reliance upon
by the Merchant for these deposits, whether pre-approved by CPL or any fraudulent, misleading or deceptive information or instructions
not. This additional authorization is not a waiver of CPL's entitlement to provided Merchant or Guarantor(s).
declare this Agreement breached by Merchant as a result of its usage of an by
8 No Liability, In no event will CPL be liable for any claims asserted
account which CPL did not first pre-approve in writing prior to by Merchant or Guarantor(s)s under any legal or equitable theory for
Merchant's usage thereof. The aforementioned authorizations shall be lost profits, lost revenues, lost business opportunities, exemplary, punitive,
imevocable ‘without the written ‘consent of CPL. special, incidental, indirect or consequential damages, each of which is
2 Term of Agreement, This Agreement shall remain in full force and waived by both Merchant and Guarantor(s)(). In the event these
effect until the entire Purchased Amount and any other amounts due are claims are nonetheless raised, Merchant and Guarantor(s) s will be
received by CPL as he terms of this Agreement. jointly liable for all of CP's attomey’s fees and expenses resulting
13 Reconciliation. As long as an Event of Default, or breach of this therefrom.
‘agreement, has not occurred, Merchant, at any fime, may request a 1.9 Reliance on Terms. Section1.1, 16, 1.7, 18 and 2.5 of this Agreement
retroactive reconciliation of the total Remittance Amount. All requests are agreed to for the benefit of Merchant, CPL Processor, and
hereunder must be in writing to Reconciliations@Capylal.com. Said request Merchant's bank and notwithstanding the fact that Processor and the
must include copies of all of Merchant's bank account statements, bank is not a party of this Agreement, Processor and the bank may rely
credit card processing statements, and accounts receivable report upon their terms and raise them as a defense in any action
outstanding if applicable, from the date of this Agreement through and
including the date the request is made. if you have questions or Price under this Agreement is in exchange for the Purchased Amount,
comments about your financing, you may contact us by e-mail at gnd that_such Purchase Price is no! intended to be, nor shall it be
Questions@Capytal.com, CPL retains the fight to reasonably request
additional documentation including bank login or access to view all construed as a loan from CPL to Merchant, Merchant agrees that the
Purchase Price is in exchange for the Receipts pursuant to
Merchant's accounts using third parly software, to correctly this Agreement, and that it equals the fair market value of such
and accurately perform the reconciliation and Merchant's refusal to
provide access shall negate CPL's requirement to perform a Receipts CPL has purchased and shall own all the Receipts
reconciliation until the Merchant provides the appropriate documents for described in this Agreement up to the full Purchased Amount as
CPL to perform
a reconciliation. Such reconciliation, if applicable, shall the Receipts are created. Merchant ‘acknowledges that CPL's
be performed by CPL within five (6) Business Days following its share of Receipts collected are being held by Merchant in trust and
receipt of Merchant's request for reconciliation and supporting are the sole property of CPL until they are remitted to CPL and shall
documentation by either crediting or debiing the difference back not use CPL's share of Receipts and shall reflect CPL's ownership of
fo, or from, Merchant's Bank Account so that the total amount CPL's share of Receipts on its books and records. Payments
debited by CPL shall equal the Specific Percentage of the Future made to CPL in respect to the full amount of the Receipts
Receipts that — Merchant collected during the contract term. shall be conditioned upon Merchant's sale of products and
.4 Adjusiments to the Remittance, As long as an Event of Default, or services, and the payment therefore by Merchant's customers. By this
breach of this agreement, has not occurred, Merchant may give notice Agreement, Merchant transfers to CPL full and complete ownership of
to CPL to request a decrease in the Remittance, should they the Purchased Amount and Merchant retains no legal or equitable
experience a decrease in ifs Future Receipts. All requests hereunder interest therein. CPL hereby appoints Merchant, and Merchant
must be in writing to and must accepts appointment, as servicer for and on behalf of CPL for the
include copies of all of Merchant's bank account statements, purpose of collecting and delivering Receipts to CPL as required by
credit card processing statements, and accounts receivable report this Agreement until CPL has received the Receipts Purchased
‘outstanding from the date of this Agreement through and including the Amount, and Merchant agrees that all such Receipts shall be
date the request is made. CPL retains the right to reasonably request received and held in trust for the benefit of CPL for purposes of
additional documentation including bank login or 3rd parly software carrying out the terms of this Agreement. Merchant agrees that it will
access to view all Merchant's accounts, refusal to provide access shall treat the amounts received and the Purchased Receipts delivered
negate CPI's obligation to adjust the Remittance until the to CPL under this Agreement in a manner consistent with a sale in
Merchant provides the appropriate documentation. The Remittance its accounting records and tax returns. Merchant agrees that CPL
shall be modified to more closely reflect the Merchant's ‘actual is entitled to audit Merchant's ‘accounting records upon
receipts by multiplying the Merchant's actual receipts by the reasonable notice in order to verify compliance. Merchant waives
Purchased Percentage divided by the number of business days in the any rights of privacy, confidentiality or taxpayer privilege in any
Previous (2) calendar weeks. Merchant shall provide CPL with viewing such litigation or arbitration in which Merchant asserts that this
access to their bank account as well as all information reasonably transaction is anything other than a sale of future receipts In no
requested by CPL to property calculate the Merchant's Remittance. event shall the aggregate of all amounts or any portion thereof be
At the end of the two (2) calendar weeks the Merchant may request deemed as interest hereunder, and in the event it is found to be
another adjustment pursuant to this paragraph or it is agreed that the interest despite the parties hereto specifically representing that it is
Merchant's Remittance shall return to the Remittance as agteed upon on NOT interest, it shall be found that no sum charged or collected
Page | of this Agreement hereunder shall exceed the highest rate permissible at low. In the
Merchant and Guarantor(s)(s) (as_ hereinafter event that a court nonetheless determines that CPL has
Gefined and limited) authorze CPL and its agents to investigate their financial charged or received interest hereunder in excess of the highest
responsibility and history, and will provide to CPL any authorizations, bank or applicable rate, the rate in effect hereunder shall automatically be
financial statements, tax returns, etc., as CPL requests in its sole and absolute reduced to the maximum tate permitied by applicable law and
discretion prior to or at any time after execution of this Agreement. A CPL shall promptly refund to Merchant any interest received by CPL in
photocopy of this authorization will be deemed as acceptable as an excess of the maximum — lawful rate, it being intended that
‘authorization for release of financial and credit information. CPL is authorized Merchant not pay or contract to pay, and that CPL not receive or
to update such information and financial and credit profiles from time to time contract to receive, directly or indirectly in ‘ny manner
2 it deems appropriate. Merchant shall provide bank login information, whatsoever, interest in excess of that which may be paid by Merchant
3rd party software access, to view Merchant's Account in connection with under applicable law. As a result thereof, Merchant
this Agreement. if Merchant changes the Account’s login information. knowingly and willingly waives the defense of Usury in any action or
Merchant must provide CPL with the updated login information in writing proceeding should this transaction be deemed that of a loan and not a
within 48 hours of such change. Merchant understands and agrees that CPL's purchase of receivables.
accessto the Account is expressly limited to monitoring for defaults under the
Agreement. Upon CPl's request, Merchant shall within 48 hours provide login
information to its bookkeeping software and/or provide weekly accounts
receivable aging reports.
Initial (0
Pee:NON RD Em TTY TT ED 17
[2024 05:11 PM INDEEXNG
E 2820006206277
SCEF DOC. NO RECEIVED NYSCEF: 04/11/2024
uu of Attomey. Merchant irrevocably appoints CPL and its agents 2 REPRESENTATIONS, WARRANTIES AND COVENANTS
‘and representatives, as its agent and attomey-in-fact with full authority to
take any action or execute any instrument or document to settle and Merchant represents warrants and covenants that, as of this date and
ensure payment of all obligations due to CPL from Processor or Merchant, during the term of this ‘Agreement:
regardless of whether the obiigation is current or due to a violation by 2.1 _Financial_Condiitlon_and__
Financial Information. Merchant's and
Merchant of Section 1 or the occurrence of an Event of Default under ‘Guarantor(s)s" bank and financial statements, copies of which have been
Section 3 hereof, including without limitation: @ to obtain and adjust furnished to CPL, and future statements which will be fumished hereafter
insurance; (fl) to collect monies due or to become due under or in respect at the discretion of CPL and any other materials and information
of any of the Collateral; (ji) to receive, endorse and collect any checks, ‘and statements made in connection with this Agreement are
Notes, drafts, instruments, documents or chattel paper in connection with complete and truthful and faitly represent the financial condition of
Clause () or clause (jl) above; (Wv) to sign Merchant’s name on any invoice, Merchant at such dates, and since those dates there has been no
bill of lading, or assignment directing customers or account debtors to make Material adverse changes, financial or otherwise, in such condition,
payment directly to CPL; (V) to contact Merchant's banks and financial ‘operation or ownership of Merchant. Merchant and Guarantor(s)s have a
institutions using Merchant and Guarantors)’ personal information to verify continuing, affirmative obligation to advise CPL of any material adverse
the existence of an account and obtain account balances; and (Vi) to file change in their financial condition, operation or ownership. CPL may
any claims or take any action or institute any proceeding which CPL may request statements at any time during the performance of this Agreement
deem necessary for the collection of any of the unpaid Purchased Amount and the Merchant and Guarantor(s)s shall provide them to CPL within
from the Collateral, or otherwise to enforce ifs rights with respect to five business days after request from CPL. Merchant's or Guarantor(s)s’
Payment of the Purchased Amount including but not limited to, notifying failure to do so is a materal breachof this Agreement.
nd instructing account debtors of Merchant and any of Merchant’: 2 Governmental Approvals, Merchant is in compliance and shall comply
Processors fo remit payment of accounts and other collateral owed to with ail laws and has valid permits, authorizations and licenses to own,
Merchant directly to CPL. In connection therewith, all costs, expenses and ‘operate and lease its properties and to conduct the business in which it is
fees, including legal fees, shall be payable by — Merchant, presently engaged and/or will engage in hereatter.
12 of | Merchant and each person signing this 2.3 Authorization. Merchant, and the person(s) signing this Agreement on
Agreement on behait of Merchant and/or as Owner or Guarantor(s), behalf of Merchant, have full power and authority fo incur and perform
in respect of him self for herself personally, authorizes CPL to the obligations under this Agreement, all of which have been duly
disclose information conceming Merchant’s and each Owner's and authorized.
each Guarantor(s)’s credit standing (including credit bureau reports 2.4 Use of Funds. Merchant agrees that it shall use the Purchase Price for
that CPL obtains) and business conduct only to agents, affiliates, business purposes and not for personal, family, or household purposes.
subsidiaries, and credit reporting bureaus. Merchant and each Owner 5 Electronic Check Processing Agreement. Merchant will not change its
and each Guarantor(s) hereby and each waives to the maximum Processor, add. terminals, change its financial institution or bank
extent permitted by law any claim for damages against CPL or any accounts) or take any other action that could nave any adverse effect
Of its affiliates relating to any investigation undertaken by or on upon Merchant's obligations under this Agreement, without CPL's prior
behalf of CPL =) permitted by this Agreement or (ji) disclosure of written consent. Any such changes shall be a material breach of this
information ed, by this Agreement. ‘Agreement.
13 Confidential. Merchant understands and agrees that the terms 6 Change of Name or Location. Merchant will not conduct Merchant's
and conditions of the products and services offered by CPL businesses under any name other than as disclosed to the Processor and
including this Agreement and any other CPL documents (collectively, a nor shall Merchant change any of its places of business without
‘Confidential Information”) are proprietary and confidential information written notification to CPL
of CPL Accordingly, unless disclosure is required by law or court Bret Dally Batch Out, Merchant will batch out receipts with the Processor
‘order, Merchant shall not disclose Confidential Information of CPL to on’ a daily basis it applicable.
any person other than an attorney, accountant, financial advisor or Merchant will at every and alll times, and from
employee of Merchant who needs to know such information for the time to ime, upon at least one (1) day’s prior notice from CPL to
Purpose of advising Merchant (“Advisor”), provided such Advisor uses Merchant, execute, acknowledge and deliver to CPL and/or to any
such information solely for the purpose of advising Merchant and first ‘other person, fim or corporation specified by CPL a statement certifying
agrees in writing to be bound by the terms of this section. A breach that this Agreement is unmodified and in full force and effect (oF, if there
hereof entities CPL to not only damages and reasonable attorney's have been modifications, that the same is in full force and effect
fees but also to both a Temporary Restraining Order and a Modified and stating the modifications) and stating the dates which the
Preliminary Injunction without Bond or Security Purchased Amount or any portion thereof has been repaid.
14_ Publicity. Merchant and each of Merchant's Owners and all 9 No Bankruptcy. As of the date of this Agreement, Merchant is not
Guarantor(s) hereby authorize CPL to use its name in listings of insolvent and does not contemplate filing for bankruptcy in the next six
clients ‘and in advertising and marketing materia. © months and has not consulted with a bankruptcy attomey or filed
18 _D/B/A’s, Merchant hereby acknowledges and agrees that CPL ‘any petition for bankruptcy protection pursuant to the United
May be using “doing business as" or “d/b/a” names in connection States Bankruptcy Code and there has been no involuntary petition
with various matters relating to the transaction between CPL and brought or pending against Merchant. Merchant further warrants that it
Merchant, including the fling of UCC-1 Aaneing statements anes does Not anticipate fing any such bankruptcy petition nor does
other Notices filings. Merchant anticipate that an involuntary petition will be filed against
16 Authority to Contact, Merchant and Owner/Guarantoxs) explicitly Merchant. Notwithstanding. the Merchant's fling for bankruptcy shall not
agree to be contacted by CPL and its agents and affiliates by constitute an event of default under this Agreement.
telephone, email and/or SMS / text messaging provided in 1 Merchant has good, _ complete,
connection with this Agreement and agree to cover all usual third unencumbered and marketable title to all Receipts and all collateral in
ity costs or charges that may be associated with such contacts which CPL has been granted a security interest under the Security
Merchant and Owner/Guarantor(s) understand that they are not Agreement, free and clear of any and all liabilities, liens, claims, charges,
required to agree to this paragraph as a condition of entering this restrictions, conditions, options, fights, mortgages, security interests,
Agreement. equities, pledges and encumbrances of any kind or nature whatsoever
17 Authority to Service Accounts. In the event Merchant is unable other than in favor of CPL or any other rights or interests that may be
or unwiling to collect all or some of the Receipts, CPL shall have inconsistent with the transactions contemplated with, or adverse fo the
the fight, without waiving any of its other rights and remedies under interests of CPL.
this Agreement, to notify the Processor, any other credit card or 11_ Bus ypose, Merchant is a valid business in good standing
Payment processor used by Merchant, or any third party having under the laws of the jurisdictions in which it is organized and/or operates,
monies owed to Merchant for its sale or delivery of or ‘and Merchant is entering in to this Agreement for business purposes and
services (including without limitation Merchant's customers), of the sale Not as a consumer for personal, family or household purposes.
of the Specified Percentage of the Receipts under this Agreement, 2.12 Defaults under Other Contracts. Merchant's execution of, and/or
and to direct such credit card, payment processor or other third Performance under this Agreement, will not cause or create an event of
party tomake payment to CPL of all or any portion of the default by Merchant under any contract with another person or entity.
amounts received by such credit card, payment processor or third 2.13 Good Falth. Merchant and Guarantor(s)s hereby affirm that Merchant
Party on behait of Merchant. If no Event of Defauit nas occured, is receiving the Purchase Price and selling CPL the Purchased Amount in
CPL shall remit back to Merchant the excess above the Specified good faith and will use the Purcha Price funds to maintain and grow
Percentage of the Receipts that it collected pursuant to. this Merchant's business.
Paragraph within 2 business days of payment and shall provide
a reconciliation inaccordance with paragraph 1.3.
Initial (0
PPro: MONA NITY CLERK 7
[2024 05:11 PM INDEEXNG
E 2820006206277
SCEF DOC. NO RECEIVED NYSCEF: 04/11/2024
3 EVENTS OF DEFAULT AND REMEDIES 4 MISCELLANEOUS
3.1 Events of Default, The occurrence of any of the following events shall 4.1 Modifications; Agreements, No modification, amendment, waiver or
constitute an “Event of Default” hereunder: (a) Merchant or Guarantor(s) consent of any provision of this Agreement shall be effective unless the
shall violate any term or covenant in this Agreement; (©) Any same shall be in writing and signed by CPL.
representation or warranty by Merchant or Guarantor(s) in this Agreement 42 Assignment, CPL may astign, transfer or sell its rights to receive the
shall prove to have been incorrect, false or misleading in any material Purchased Amount or delegate its duties hereunder, either in whole or
respect when made; (c) the sending of notice of termination by Merchant in part.
‘or verbally notifying CPL of its intent to breach this Agreement; (d) the 4.3 Notices, All notices, requests, consents, demands and other
Merchant fails to request a Reconciliation or Adjustments to the communications hereunder shall be delivered by certified m ail, return
Remittance pursuant to Paragraphs 1.3 & 1.4 (as appropriate) within 1 receipt requested, to the respective patties to this Agreement at the
business day of a Merchant's Remittance returned of insufficient funds in addresses set forth in this Agreement. Notices to CPL shall become
the Account such that the ACH of the Remittance amount was not be effective only upon receipt by CPL Notices fo Merchant shall
honored by Merchant's bank; (e) Merchant fails to provide its bank become effective three days after mailing
statements, ‘and/or month to date bank activity, accounts No failure on the part of CPL to exercise,
receivable reports, and/or bank login information within two (2) business ‘and no delay in exercising any right under this Agreement shall operate
days of a request by CPL or the merchant changes their bank login @s a waiver thereof, nor shall any single or partial exercise of any
information (which was previously-provided to CPL) without providing
CPL with the updated login information in writing within 48 hours of such right under this Agreement preclude any other or further exercise
update; () Merchant shall voluntarily transfer or sell all or substantially all of thereof or the exercise of any other right. The remedies provided
ifs assets; (g) Merchant shall make
or send notice of any intended bulk hereunder are cumulative and not exclusive of any remedies
sale or transfer by Merchant; (h) Merchant shall use multiple provided by law or equity.
depository accounts without the prior written consent of CPL or takes 4.5 Binding Effect; Goveming Law, Venue _and Jurisdiction. This
any other action that intentionally interferes with or prevents CPL from Agreement, Security Agreement and Guaranty, Guaranty of
receiving the Purchased Amount in accordance with the terms of this Performance, and any and all addenda, attachments, exhibits, and
Agreement; () Merchant shall enter into any financing agreements with other documents relating to this Agreement in any way, shall be
any other party including but not limited to: Loans, Merchant Cash binding upon and inure to the benefit of Merchant and
Advances, Receivables financing, or any other agreement that wil Guarantor(s) on the one hand, and CPL and their respective
increase the total debt owed by Merchant to any other party; () successors and assigns, except that Merchant and Guarantor(s)
Merchant shall change its depositing account without the prior written shall not have the right to assign their rights hereunder or any
‘consent of CPL; (K) Merchant shall close its depositing account used for interest herein without the prior written consent of CPL which
ACH debits without the prior written consent of CPL; (I) Merchant's bank consent may be withheld in CPL's sole discretion. CPL reserves the
retus a code other than NSF cutting CPL from its collections; (m) rights to assign this Agreement with or without prior written notice
Merchant or any Owner/ Guarantor(s), directly or indirectly, causes to be to Merchant. This Agreement, Security Agreement, Guaranty of
formed a new entity or otherwise becomes associated with any new or Performance, and any and all addenda, attachments, exhibits,
existing entity, which operates a business similar to or competitive with that and other documents relating to this Agreement in any way, shall
‘of Merchant; or (n) Merchant shall default under any of the terms, be govemed by and construed in accordance with the laws of
covenants and conditions of any other agreement with CPL. the state of New York, without regards to any applicable principles
2 limited Personal Guaranty. Guarantor shall provide a limited guaranty of conflicts of law. Any suit, action or proceeding arising
‘of performance in connection with this Agreement ("Guaranty"). The hereunder, or the interpretation, performance or breach hereof,
Guaranty shall only guaranty the Merchant's performance of the shall be instituted exclusively in the Supreme Court of the State of
covenants, representations and conditions of this Agreement and shall not
guarantee the Remittance payment except upon the occurrence of New York (the ‘Acceptable Forums”) and not in the federal
an Event of Default. Upon the occurrence of an Event of Default, CPL courts located within the State of New York. The
will enforce its hts against the Guarantor(s) of this transaction Merchant, and Guarantor(s) specifically waive their right to remove
Said Guarantor(s) will be jointly and severally liable to CPL for all of ‘any state court action commenced by CPL and further consent to
CPU's losses and Guarantor(s) will be jointly and severally liable to CPL the Remand of any matter pending between any of the Parties to this
for all of CPL's losses and damages, in additional to all costs and Agreement fo State Court. All Parties to this Agreement, hereby
expenses and legal fees associated with such enforcement. For the acknowledge and agree that the Acceptable Forums are
avoidance of doubt, the Guarantor shall not be liable in the event that convenient for the resolution of any disputes, submit to their jurisdiction
the Merchant is not liable under this Agreement. and waive any and all rights to object to jurisdiction or venue in
3.3 Remedies. Upon the occurrence of an Event of Default that is not same. Merchant and Guarantor(s) hereby waive all formal service of
waived pursuant to Section 4.4. hereof, CPL may proceed to protect and process including but not limited to personal cer cand agree that the
enforce its rights or remedies by suit in equity or by action at law, or both, mailing of any Summons and Complaint in any proceeding
whether for the specific performance of any covenant, agreement or commenced by CPL by certified or registered mai elu receipt
‘other provision contained herein, or to enforce the discharge of requesied to the Mailing Address listed on this Agreement, or viai
Merchant's obligations hereunder (including the Guaranty) or any other email fo the Email Address listed on this Agreement, or any other
legal or equitable right or remedy, including but not limited to (1) Process required by any such court will constitute valid and lawful
‘accelerating the full uncollected Purchased Amount (2) filing the service of process against them without the necessity for service by
Confession of Judgment and executing thereon, and (3) enforcing the any other means provided by statute or rule of court, but without
Security Agreement contained herein including any and all rights and invalidating service performed in accordance with cuch other provisions.
remedies of a secured party under Uniform Commercial Code Article 9, All representations, warranties and
and sending demand letters to account debtors and credit card covenants herein shall survive the execution and delivery of this
processors. All rights, powers and remedies of CPL in connection with this Agreement and shall continue in full force until all obligations under
Agreement may be exercised at any time by CPL after the occurrence of this Agreement shall have been satisfied in full and this Agreement
‘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 shall have terminated.
Upon an Event of Default under Section 3.1(), CPL shall be permitted to 47 Interpretation. All Parties hereto have reviewed this Agreement with
immediately and for the duration of this Agreement collect twice or three an attorney of their choice and have relied only upon their own
times the Remittance amount, in accordance with CPL's determination, in attorneys’ guidance and advice. This ‘Agreement shall not be
its sole discretion, of the increased risk caused to CPL as a result of such construed as against the Preparing Party.
Event of
Preview
INDEX NO. E2024006277 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/11/2024 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3820904 Book Page CIVIL Return To: No. Pages: 12 ADAM RICHARD NICHOLS 1 Whitehall Street Suite 200 Instrument: EXHIBIT(S) New York, NY 10004 Control #: 202404111912 Index #: E2024006277 Date: 04/11/2024 CAPYTAL.com Time: 5:29:51 PM RDM TRUCKING, INC RDM TRUCKING INC RDO INTERMODAL T & M TRANSPORTATION, INC. RICARDO DANIEL MARTINEZ 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 MOTTA A ai PK 04 DM INDE&& NOE 2624026206277 D 0 NRO OUN NYSCEF BOC. NO. 2 RECEIVED NYSCEF: 04/11/2024 EXHIBIT A DiHExNG E 262046206277 FIEED. MONROE ioe tL / F: 04/11/2024 REVENUE PURCHASE AGREEMENT This Revenue Purchase Agreement and Security Agreement and Guaranty of Performance (‘Agreement”) dated December 6, 2023 between Capytal.com (“CPL”) the Merchant(s) listed below (“Merchant”) and the Individual(s) listed below (“Guarantor”) MERCHANT INFORMATION Merchant's Legal name RDM TRUCKING, INC RDM TRUCKING INC/ R D O INTERMODAL / T & M TRANSPORTATION, INC. Type of Entity State of Incorporation / Organization cop. Oc Osole Prop Other CA D/B/A RDM TRUCKING Physical Address 13214 HELMER DRIVE City State Zip Business Phone WHITTIER CA 90602 5623470458 Guarantor(s) Name Cellphone Number Email Address RICARDO DANIEL MARTINEZ 5623820614 MARTINEZRICARDO2117@YAHOO.COM Mailing Address SAME AS ABOVE City State Zip Purchase Price Purchased Percent Purchased Amount Payment Frequency Remittance $ 30,000.00 4 % $ 44,100.00 DAILY $ 519.00 In consideration of payment by CPL to Merchant of the Purchase Price set forth above, Merchant hereby sells, assigns and transfers to CPL (making CPL the absolute owner) the Purchased Percentage of all of the Merchant's payments, receipts, settlements and funds paid to or received by or for the account of Merchant from time to time on and after the date hereof in payment or settlement of Merchant's existing and future accounts, payment intangibles, credit, debit and/or stored value card transactions, contract rights and other entitlements arising from or relating to the payment of monies from Merchant's customers’ and/or other payors or obligors (the “Future Receipts” or “Receipts” are defined as all payments made by cash, check, clearinghouse settlement, electronic transfer or other form of monetary payment), for the payments to Merchant as a result of Merchant's sale of goods and/ or services (the “Transactions”) until the Purchased Amount has been delivered by or on behalf of Merchant to CPL. 1 Initial { eh Peep: MON RD EGO TY TT EDK 77 INDEEXNG E 2820006206277 SCEF DOC. NO. RECEIVED NYSCEF: 04/11/2024 Merchant is selling a portion of a future revenue stream to CPL at a discount, and is not borrowing money from CPL, therefore there is no interest rate or payment schedule and no time period during which the Purchased Amount must be collected by CPL. The Remittance is a good faith estimate of CPL's share of the future revenue stream. Merchant going bankrupt or going out of business, or experiencing a slowdown in business, or a delay in collecting its receivables, in and of itself, does not constitute a breach of this Agreement. CPL is entering this Agreement knowing the risks that Merchant's business may not perform as expected or fail, and CPL assumes these risks based on Merchant's representations, warranties and covenants in this Agreement, which are designed to give CPL a reasonable and fair opportunity to receive the benefit of its bargain. CPL acknowledges that it may never receive the Purchased Amount in the event that the Merchant does not generate sufficient revenue. Merchant and Guarantor(s)(s) are only guaranteeing their performance of the terms of this Revenue Purchase Agreement, and are not guaranteeing the payment of the Purchased Amount. The initial Remittance shall be as described above. The Remittance is subject to adjustment as set forth in Paragraph 1.3 and Paragraph 1.4. CPL will debit the Remittance each business day from only one depositing bank account, which account must be acceptable to, and pre-approved by, CPL (the “Account’) into which Merchant and Merchant's customers shall remit the Receipts from each Transaction, until such time as CPL receives payment in full of the Purchased Amount. Merchant hereby authorizes CPL to ACH debit the agreed Remittance from the Account on the agreed upon Payment Frequency; a daily basis means any day that is not a United States banking holiday, provided that CPL may collect twice the Remittance amount on the date following such banking holiday; CPL may alter the Payment Frequency from weekly to daily upon Event of Default or missed Remittance Merchant agrees not to make or cause debits to the Account (other than in favor of CPL) at any time that would cause the balance therein on any business day to be insufficient to fund payment in full of the agreed Remittance. The Account may not be used for any personal, family or household purposes. Merchant will provide CPL with all required access codes and monthly bank statements regarding the Account so that CPL may monitor the Account. CPL payment of the Purchase Price shall be deemed the acceptance and performance by CPL of this Agreement. Merchant understands that it is responsible for ensuring that the agreed Remittance to be debited by CPL remains in the Account and will be held responsible for any fees incurred by CPL resulting from a rejected ACH attempt or an Event of Default. CPL is not responsible for any overdrafts or rejected transactions that may result from CPl's ACH debiting the agreed Remittance under the terms of this Agreement. Notwithstanding anything to the contrary in this Agreement or any other agreement between CPL and Merchant, upon the occurrence of an Event of Default of the MERCHANT AGREEMENT TERMS AND CONDITIONS the: Purchased Percentage shall equal 100%. A list of all fees applicable under this Agreement is contained in Appendix A. THE MERCHANT AGREEMENT “TERMS AND CONDITIONS”, THE “SECURITY AGREEMENT AND GUARANTY” AND THE “ADMINISTRATIVE FORM HEREOF, ARE ALL HEREBY INCORPORATED IN AND MADE A PART OF THIS MERCHANT AGREEMENT. FOR THE MERCHANT (#1) By: FOR THE MERCHANT (#2) By: RICARDO DANIEL MARTINEZ Print Name and Title Print Name and Title [x DocuSigned by: 751141762905441 Signature Signature BY GUARANTOR(S) (#1) By: BY GUARANTOR(S) (#2) By: RICARDO DANIEL MARTINEZ Print Name and Title Print Name and Title DocuSigned by: Ficardo Danil Marines, 751141762905441, Signature Signature Capytal.com (“CPL”) Signature BY: Print Name and Title Initial { rpm PPro: MONA NITY CLERK 7 0 0 DV INDEEXNG Pe CEIVED NYSCEF: E 2820006206277 SCEF DOC. NO. MERCHANT AGE! M RMI ND OND ON Mv 04/11/2024 1 TERMS OF ENROLLMENT IN PROGRAM 6 Transactional History. Merchant authorizes all of its banks, brokers ‘and processor to provide CPL with Merchant's banking, brokerage Merchant shall (A) and/or processing history to determine qualification or continuation in execute an agreement acceptable to CPL with a Bank acceptable to this program and for collections purposes. Merchant shall provide CPL CPL to obtain electronic fund transfer services for the Account, and (8) if with copies of any documents related to Merchant's card processing applicable, execute an agreement acceptable to CPL with a credit and activity or financial and banking affairs within five days after a request debit card processor (the “Processor’) instructing the Processor to deposit from CPL all Receipts into the Account. Merchant shall provide CPL and/or its 1.7_ Indemnification, Merchant and Guarantor(s\(s) hereby jointly and authorized agent(s) with all of the information, authorizations and severally indemnify and hold harmless CPL and each Processor, their Passwords necessary for verifying Merchant's receivables, receipts, respective officers, directors, agents and representatives, deposits and withdrawals into and from the Account. Merchant hereby contractors, affiliates, and shareholders against all losses, damages, authorizes CPL and/or its agent(s) to withdraw from the Account via ACH costs, claims, liabilities and expenses (including reasonable attomey’s debit the amounts owed to CPL for the receipts as specified herein and to fees) incurred by any such indemnifying acts or actions as a direct or y such amounts to CPL. These authorizations apply not only to the indirect result of (a) claims asserted by CPL for monies owed to CPL approved Account but also to any subsequent or alternate account used from Merchant and (b) actions taken by indemnitee in reliance upon by the Merchant for these deposits, whether pre-approved by CPL or any fraudulent, misleading or deceptive information or instructions not. This additional authorization is not a waiver of CPL's entitlement to provided Merchant or Guarantor(s). declare this Agreement breached by Merchant as a result of its usage of an by 8 No Liability, In no event will CPL be liable for any claims asserted account which CPL did not first pre-approve in writing prior to by Merchant or Guarantor(s)s under any legal or equitable theory for Merchant's usage thereof. The aforementioned authorizations shall be lost profits, lost revenues, lost business opportunities, exemplary, punitive, imevocable ‘without the written ‘consent of CPL. special, incidental, indirect or consequential damages, each of which is 2 Term of Agreement, This Agreement shall remain in full force and waived by both Merchant and Guarantor(s)(). In the event these effect until the entire Purchased Amount and any other amounts due are claims are nonetheless raised, Merchant and Guarantor(s) s will be received by CPL as he terms of this Agreement. jointly liable for all of CP's attomey’s fees and expenses resulting 13 Reconciliation. As long as an Event of Default, or breach of this therefrom. ‘agreement, has not occurred, Merchant, at any fime, may request a 1.9 Reliance on Terms. Section1.1, 16, 1.7, 18 and 2.5 of this Agreement retroactive reconciliation of the total Remittance Amount. All requests are agreed to for the benefit of Merchant, CPL Processor, and hereunder must be in writing to Reconciliations@Capylal.com. Said request Merchant's bank and notwithstanding the fact that Processor and the must include copies of all of Merchant's bank account statements, bank is not a party of this Agreement, Processor and the bank may rely credit card processing statements, and accounts receivable report upon their terms and raise them as a defense in any action outstanding if applicable, from the date of this Agreement through and including the date the request is made. if you have questions or Price under this Agreement is in exchange for the Purchased Amount, comments about your financing, you may contact us by e-mail at gnd that_such Purchase Price is no! intended to be, nor shall it be Questions@Capytal.com, CPL retains the fight to reasonably request additional documentation including bank login or access to view all construed as a loan from CPL to Merchant, Merchant agrees that the Purchase Price is in exchange for the Receipts pursuant to Merchant's accounts using third parly software, to correctly this Agreement, and that it equals the fair market value of such and accurately perform the reconciliation and Merchant's refusal to provide access shall negate CPL's requirement to perform a Receipts CPL has purchased and shall own all the Receipts reconciliation until the Merchant provides the appropriate documents for described in this Agreement up to the full Purchased Amount as CPL to perform a reconciliation. Such reconciliation, if applicable, shall the Receipts are created. Merchant ‘acknowledges that CPL's be performed by CPL within five (6) Business Days following its share of Receipts collected are being held by Merchant in trust and receipt of Merchant's request for reconciliation and supporting are the sole property of CPL until they are remitted to CPL and shall documentation by either crediting or debiing the difference back not use CPL's share of Receipts and shall reflect CPL's ownership of fo, or from, Merchant's Bank Account so that the total amount CPL's share of Receipts on its books and records. Payments debited by CPL shall equal the Specific Percentage of the Future made to CPL in respect to the full amount of the Receipts Receipts that — Merchant collected during the contract term. shall be conditioned upon Merchant's sale of products and .4 Adjusiments to the Remittance, As long as an Event of Default, or services, and the payment therefore by Merchant's customers. By this breach of this agreement, has not occurred, Merchant may give notice Agreement, Merchant transfers to CPL full and complete ownership of to CPL to request a decrease in the Remittance, should they the Purchased Amount and Merchant retains no legal or equitable experience a decrease in ifs Future Receipts. All requests hereunder interest therein. CPL hereby appoints Merchant, and Merchant must be in writing to and must accepts appointment, as servicer for and on behalf of CPL for the include copies of all of Merchant's bank account statements, purpose of collecting and delivering Receipts to CPL as required by credit card processing statements, and accounts receivable report this Agreement until CPL has received the Receipts Purchased ‘outstanding from the date of this Agreement through and including the Amount, and Merchant agrees that all such Receipts shall be date the request is made. CPL retains the right to reasonably request received and held in trust for the benefit of CPL for purposes of additional documentation including bank login or 3rd parly software carrying out the terms of this Agreement. Merchant agrees that it will access to view all Merchant's accounts, refusal to provide access shall treat the amounts received and the Purchased Receipts delivered negate CPI's obligation to adjust the Remittance until the to CPL under this Agreement in a manner consistent with a sale in Merchant provides the appropriate documentation. The Remittance its accounting records and tax returns. Merchant agrees that CPL shall be modified to more closely reflect the Merchant's ‘actual is entitled to audit Merchant's ‘accounting records upon receipts by multiplying the Merchant's actual receipts by the reasonable notice in order to verify compliance. Merchant waives Purchased Percentage divided by the number of business days in the any rights of privacy, confidentiality or taxpayer privilege in any Previous (2) calendar weeks. Merchant shall provide CPL with viewing such litigation or arbitration in which Merchant asserts that this access to their bank account as well as all information reasonably transaction is anything other than a sale of future receipts In no requested by CPL to property calculate the Merchant's Remittance. event shall the aggregate of all amounts or any portion thereof be At the end of the two (2) calendar weeks the Merchant may request deemed as interest hereunder, and in the event it is found to be another adjustment pursuant to this paragraph or it is agreed that the interest despite the parties hereto specifically representing that it is Merchant's Remittance shall return to the Remittance as agteed upon on NOT interest, it shall be found that no sum charged or collected Page | of this Agreement hereunder shall exceed the highest rate permissible at low. In the Merchant and Guarantor(s)(s) (as_ hereinafter event that a court nonetheless determines that CPL has Gefined and limited) authorze CPL and its agents to investigate their financial charged or received interest hereunder in excess of the highest responsibility and history, and will provide to CPL any authorizations, bank or applicable rate, the rate in effect hereunder shall automatically be financial statements, tax returns, etc., as CPL requests in its sole and absolute reduced to the maximum tate permitied by applicable law and discretion prior to or at any time after execution of this Agreement. A CPL shall promptly refund to Merchant any interest received by CPL in photocopy of this authorization will be deemed as acceptable as an excess of the maximum — lawful rate, it being intended that ‘authorization for release of financial and credit information. CPL is authorized Merchant not pay or contract to pay, and that CPL not receive or to update such information and financial and credit profiles from time to time contract to receive, directly or indirectly in ‘ny manner 2 it deems appropriate. Merchant shall provide bank login information, whatsoever, interest in excess of that which may be paid by Merchant 3rd party software access, to view Merchant's Account in connection with under applicable law. As a result thereof, Merchant this Agreement. if Merchant changes the Account’s login information. knowingly and willingly waives the defense of Usury in any action or Merchant must provide CPL with the updated login information in writing proceeding should this transaction be deemed that of a loan and not a within 48 hours of such change. Merchant understands and agrees that CPL's purchase of receivables. accessto the Account is expressly limited to monitoring for defaults under the Agreement. Upon CPl's request, Merchant shall within 48 hours provide login information to its bookkeeping software and/or provide weekly accounts receivable aging reports. Initial (0 Pee:NON RD Em TTY TT ED 17 [2024 05:11 PM INDEEXNG E 2820006206277 SCEF DOC. NO RECEIVED NYSCEF: 04/11/2024 uu of Attomey. Merchant irrevocably appoints CPL and its agents 2 REPRESENTATIONS, WARRANTIES AND COVENANTS ‘and representatives, as its agent and attomey-in-fact with full authority to take any action or execute any instrument or document to settle and Merchant represents warrants and covenants that, as of this date and ensure payment of all obligations due to CPL from Processor or Merchant, during the term of this ‘Agreement: regardless of whether the obiigation is current or due to a violation by 2.1 _Financial_Condiitlon_and__ Financial Information. Merchant's and Merchant of Section 1 or the occurrence of an Event of Default under ‘Guarantor(s)s" bank and financial statements, copies of which have been Section 3 hereof, including without limitation: @ to obtain and adjust furnished to CPL, and future statements which will be fumished hereafter insurance; (fl) to collect monies due or to become due under or in respect at the discretion of CPL and any other materials and information of any of the Collateral; (ji) to receive, endorse and collect any checks, ‘and statements made in connection with this Agreement are Notes, drafts, instruments, documents or chattel paper in connection with complete and truthful and faitly represent the financial condition of Clause () or clause (jl) above; (Wv) to sign Merchant’s name on any invoice, Merchant at such dates, and since those dates there has been no bill of lading, or assignment directing customers or account debtors to make Material adverse changes, financial or otherwise, in such condition, payment directly to CPL; (V) to contact Merchant's banks and financial ‘operation or ownership of Merchant. Merchant and Guarantor(s)s have a institutions using Merchant and Guarantors)’ personal information to verify continuing, affirmative obligation to advise CPL of any material adverse the existence of an account and obtain account balances; and (Vi) to file change in their financial condition, operation or ownership. CPL may any claims or take any action or institute any proceeding which CPL may request statements at any time during the performance of this Agreement deem necessary for the collection of any of the unpaid Purchased Amount and the Merchant and Guarantor(s)s shall provide them to CPL within from the Collateral, or otherwise to enforce ifs rights with respect to five business days after request from CPL. Merchant's or Guarantor(s)s’ Payment of the Purchased Amount including but not limited to, notifying failure to do so is a materal breachof this Agreement. nd instructing account debtors of Merchant and any of Merchant’: 2 Governmental Approvals, Merchant is in compliance and shall comply Processors fo remit payment of accounts and other collateral owed to with ail laws and has valid permits, authorizations and licenses to own, Merchant directly to CPL. In connection therewith, all costs, expenses and ‘operate and lease its properties and to conduct the business in which it is fees, including legal fees, shall be payable by — Merchant, presently engaged and/or will engage in hereatter. 12 of | Merchant and each person signing this 2.3 Authorization. Merchant, and the person(s) signing this Agreement on Agreement on behait of Merchant and/or as Owner or Guarantor(s), behalf of Merchant, have full power and authority fo incur and perform in respect of him self for herself personally, authorizes CPL to the obligations under this Agreement, all of which have been duly disclose information conceming Merchant’s and each Owner's and authorized. each Guarantor(s)’s credit standing (including credit bureau reports 2.4 Use of Funds. Merchant agrees that it shall use the Purchase Price for that CPL obtains) and business conduct only to agents, affiliates, business purposes and not for personal, family, or household purposes. subsidiaries, and credit reporting bureaus. Merchant and each Owner 5 Electronic Check Processing Agreement. Merchant will not change its and each Guarantor(s) hereby and each waives to the maximum Processor, add. terminals, change its financial institution or bank extent permitted by law any claim for damages against CPL or any accounts) or take any other action that could nave any adverse effect Of its affiliates relating to any investigation undertaken by or on upon Merchant's obligations under this Agreement, without CPL's prior behalf of CPL =) permitted by this Agreement or (ji) disclosure of written consent. Any such changes shall be a material breach of this information ed, by this Agreement. ‘Agreement. 13 Confidential. Merchant understands and agrees that the terms 6 Change of Name or Location. Merchant will not conduct Merchant's and conditions of the products and services offered by CPL businesses under any name other than as disclosed to the Processor and including this Agreement and any other CPL documents (collectively, a nor shall Merchant change any of its places of business without ‘Confidential Information”) are proprietary and confidential information written notification to CPL of CPL Accordingly, unless disclosure is required by law or court Bret Dally Batch Out, Merchant will batch out receipts with the Processor ‘order, Merchant shall not disclose Confidential Information of CPL to on’ a daily basis it applicable. any person other than an attorney, accountant, financial advisor or Merchant will at every and alll times, and from employee of Merchant who needs to know such information for the time to ime, upon at least one (1) day’s prior notice from CPL to Purpose of advising Merchant (“Advisor”), provided such Advisor uses Merchant, execute, acknowledge and deliver to CPL and/or to any such information solely for the purpose of advising Merchant and first ‘other person, fim or corporation specified by CPL a statement certifying agrees in writing to be bound by the terms of this section. A breach that this Agreement is unmodified and in full force and effect (oF, if there hereof entities CPL to not only damages and reasonable attorney's have been modifications, that the same is in full force and effect fees but also to both a Temporary Restraining Order and a Modified and stating the modifications) and stating the dates which the Preliminary Injunction without Bond or Security Purchased Amount or any portion thereof has been repaid. 14_ Publicity. Merchant and each of Merchant's Owners and all 9 No Bankruptcy. As of the date of this Agreement, Merchant is not Guarantor(s) hereby authorize CPL to use its name in listings of insolvent and does not contemplate filing for bankruptcy in the next six clients ‘and in advertising and marketing materia. © months and has not consulted with a bankruptcy attomey or filed 18 _D/B/A’s, Merchant hereby acknowledges and agrees that CPL ‘any petition for bankruptcy protection pursuant to the United May be using “doing business as" or “d/b/a” names in connection States Bankruptcy Code and there has been no involuntary petition with various matters relating to the transaction between CPL and brought or pending against Merchant. Merchant further warrants that it Merchant, including the fling of UCC-1 Aaneing statements anes does Not anticipate fing any such bankruptcy petition nor does other Notices filings. Merchant anticipate that an involuntary petition will be filed against 16 Authority to Contact, Merchant and Owner/Guarantoxs) explicitly Merchant. Notwithstanding. the Merchant's fling for bankruptcy shall not agree to be contacted by CPL and its agents and affiliates by constitute an event of default under this Agreement. telephone, email and/or SMS / text messaging provided in 1 Merchant has good, _ complete, connection with this Agreement and agree to cover all usual third unencumbered and marketable title to all Receipts and all collateral in ity costs or charges that may be associated with such contacts which CPL has been granted a security interest under the Security Merchant and Owner/Guarantor(s) understand that they are not Agreement, free and clear of any and all liabilities, liens, claims, charges, required to agree to this paragraph as a condition of entering this restrictions, conditions, options, fights, mortgages, security interests, Agreement. equities, pledges and encumbrances of any kind or nature whatsoever 17 Authority to Service Accounts. In the event Merchant is unable other than in favor of CPL or any other rights or interests that may be or unwiling to collect all or some of the Receipts, CPL shall have inconsistent with the transactions contemplated with, or adverse fo the the fight, without waiving any of its other rights and remedies under interests of CPL. this Agreement, to notify the Processor, any other credit card or 11_ Bus ypose, Merchant is a valid business in good standing Payment processor used by Merchant, or any third party having under the laws of the jurisdictions in which it is organized and/or operates, monies owed to Merchant for its sale or delivery of or ‘and Merchant is entering in to this Agreement for business purposes and services (including without limitation Merchant's customers), of the sale Not as a consumer for personal, family or household purposes. of the Specified Percentage of the Receipts under this Agreement, 2.12 Defaults under Other Contracts. Merchant's execution of, and/or and to direct such credit card, payment processor or other third Performance under this Agreement, will not cause or create an event of party tomake payment to CPL of all or any portion of the default by Merchant under any contract with another person or entity. amounts received by such credit card, payment processor or third 2.13 Good Falth. Merchant and Guarantor(s)s hereby affirm that Merchant Party on behait of Merchant. If no Event of Defauit nas occured, is receiving the Purchase Price and selling CPL the Purchased Amount in CPL shall remit back to Merchant the excess above the Specified good faith and will use the Purcha Price funds to maintain and grow Percentage of the Receipts that it collected pursuant to. this Merchant's business. Paragraph within 2 business days of payment and shall provide a reconciliation inaccordance with paragraph 1.3. Initial (0 PPro: MONA NITY CLERK 7 [2024 05:11 PM INDEEXNG E 2820006206277 SCEF DOC. NO RECEIVED NYSCEF: 04/11/2024 3 EVENTS OF DEFAULT AND REMEDIES 4 MISCELLANEOUS 3.1 Events of Default, The occurrence of any of the following events shall 4.1 Modifications; Agreements, No modification, amendment, waiver or constitute an “Event of Default” hereunder: (a) Merchant or Guarantor(s) consent of any provision of this Agreement shall be effective unless the shall violate any term or covenant in this Agreement; (©) Any same shall be in writing and signed by CPL. representation or warranty by Merchant or Guarantor(s) in this Agreement 42 Assignment, CPL may astign, transfer or sell its rights to receive the shall prove to have been incorrect, false or misleading in any material Purchased Amount or delegate its duties hereunder, either in whole or respect when made; (c) the sending of notice of termination by Merchant in part. ‘or verbally notifying CPL of its intent to breach this Agreement; (d) the 4.3 Notices, All notices, requests, consents, demands and other Merchant fails to request a Reconciliation or Adjustments to the communications hereunder shall be delivered by certified m ail, return Remittance pursuant to Paragraphs 1.3 & 1.4 (as appropriate) within 1 receipt requested, to the respective patties to this Agreement at the business day of a Merchant's Remittance returned of insufficient funds in addresses set forth in this Agreement. Notices to CPL shall become the Account such that the ACH of the Remittance amount was not be effective only upon receipt by CPL Notices fo Merchant shall honored by Merchant's bank; (e) Merchant fails to provide its bank become effective three days after mailing statements, ‘and/or month to date bank activity, accounts No failure on the part of CPL to exercise, receivable reports, and/or bank login information within two (2) business ‘and no delay in exercising any right under this Agreement shall operate days of a request by CPL or the merchant changes their bank login @s a waiver thereof, nor shall any single or partial exercise of any information (which was previously-provided to CPL) without providing CPL with the updated login information in writing within 48 hours of such right under this Agreement preclude any other or further exercise update; () Merchant shall voluntarily transfer or sell all or substantially all of thereof or the exercise of any other right. The remedies provided ifs assets; (g) Merchant shall make or send notice of any intended bulk hereunder are cumulative and not exclusive of any remedies sale or transfer by Merchant; (h) Merchant shall use multiple provided by law or equity. depository accounts without the prior written consent of CPL or takes 4.5 Binding Effect; Goveming Law, Venue _and Jurisdiction. This any other action that intentionally interferes with or prevents CPL from Agreement, Security Agreement and Guaranty, Guaranty of receiving the Purchased Amount in accordance with the terms of this Performance, and any and all addenda, attachments, exhibits, and Agreement; () Merchant shall enter into any financing agreements with other documents relating to this Agreement in any way, shall be any other party including but not limited to: Loans, Merchant Cash binding upon and inure to the benefit of Merchant and Advances, Receivables financing, or any other agreement that wil Guarantor(s) on the one hand, and CPL and their respective increase the total debt owed by Merchant to any other party; () successors and assigns, except that Merchant and Guarantor(s) Merchant shall change its depositing account without the prior written shall not have the right to assign their rights hereunder or any ‘consent of CPL; (K) Merchant shall close its depositing account used for interest herein without the prior written consent of CPL which ACH debits without the prior written consent of CPL; (I) Merchant's bank consent may be withheld in CPL's sole discretion. CPL reserves the retus a code other than NSF cutting CPL from its collections; (m) rights to assign this Agreement with or without prior written notice Merchant or any Owner/ Guarantor(s), directly or indirectly, causes to be to Merchant. This Agreement, Security Agreement, Guaranty of formed a new entity or otherwise becomes associated with any new or Performance, and any and all addenda, attachments, exhibits, existing entity, which operates a business similar to or competitive with that and other documents relating to this Agreement in any way, shall ‘of Merchant; or (n) Merchant shall default under any of the terms, be govemed by and construed in accordance with the laws of covenants and conditions of any other agreement with CPL. the state of New York, without regards to any applicable principles 2 limited Personal Guaranty. Guarantor shall provide a limited guaranty of conflicts of law. Any suit, action or proceeding arising ‘of performance in connection with this Agreement ("Guaranty"). The hereunder, or the interpretation, performance or breach hereof, Guaranty shall only guaranty the Merchant's performance of the shall be instituted exclusively in the Supreme Court of the State of covenants, representations and conditions of this Agreement and shall not guarantee the Remittance payment except upon the occurrence of New York (the ‘Acceptable Forums”) and not in the federal an Event of Default. Upon the occurrence of an Event of Default, CPL courts located within the State of New York. The will enforce its hts against the Guarantor(s) of this transaction Merchant, and Guarantor(s) specifically waive their right to remove Said Guarantor(s) will be jointly and severally liable to CPL for all of ‘any state court action commenced by CPL and further consent to CPU's losses and Guarantor(s) will be jointly and severally liable to CPL the Remand of any matter pending between any of the Parties to this for all of CPL's losses and damages, in additional to all costs and Agreement fo State Court. All Parties to this Agreement, hereby expenses and legal fees associated with such enforcement. For the acknowledge and agree that the Acceptable Forums are avoidance of doubt, the Guarantor shall not be liable in the event that convenient for the resolution of any disputes, submit to their jurisdiction the Merchant is not liable under this Agreement. and waive any and all rights to object to jurisdiction or venue in 3.3 Remedies. Upon the occurrence of an Event of Default that is not same. Merchant and Guarantor(s) hereby waive all formal service of waived pursuant to Section 4.4. hereof, CPL may proceed to protect and process including but not limited to personal cer cand agree that the enforce its rights or remedies by suit in equity or by action at law, or both, mailing of any Summons and Complaint in any proceeding whether for the specific performance of any covenant, agreement or commenced by CPL by certified or registered mai elu receipt ‘other provision contained herein, or to enforce the discharge of requesied to the Mailing Address listed on this Agreement, or viai Merchant's obligations hereunder (including the Guaranty) or any other email fo the Email Address listed on this Agreement, or any other legal or equitable right or remedy, including but not limited to (1) Process required by any such court will constitute valid and lawful ‘accelerating the full uncollected Purchased Amount (2) filing the service of process against them without the necessity for service by Confession of Judgment and executing thereon, and (3) enforcing the any other means provided by statute or rule of court, but without Security Agreement contained herein including any and all rights and invalidating service performed in accordance with cuch other provisions. remedies of a secured party under Uniform Commercial Code Article 9, All representations, warranties and and sending demand letters to account debtors and credit card covenants herein shall survive the execution and delivery of this processors. All rights, powers and remedies of CPL in connection with this Agreement and shall continue in full force until all obligations under Agreement may be exercised at any time by CPL after the occurrence of this Agreement shall have been satisfied in full and this Agreement ‘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 shall have terminated. Upon an Event of Default under Section 3.1(), CPL shall be permitted to 47 Interpretation. All Parties hereto have reviewed this Agreement with immediately and for the duration of this Agreement collect twice or three an attorney of their choice and have relied only upon their own times the Remittance amount, in accordance with CPL's determination, in attorneys’ guidance and advice. This ‘Agreement shall not be its sole discretion, of the increased risk caused to CPL as a result of such construed as against the Preparing Party. Event of