Preview
FILED: MONROE COUNTY CLERK 04/15/2024 10:45 AM INDEX NO. E2024006393
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3824665
Book Page CIVIL
Return To: No. Pages: 19
STEVEN ZAKHARYAYEV
10 W37th Street, RM 602 Instrument: EXHIBIT(S)
New York, NY 10018
Control #: 202404151478
Index #: E2024006393
Date: 04/15/2024
XUPER FUNDING LLC Time: 4:16:17 PM
Bella Nails and SPA Inc
Nguyen, Chi Thi
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
202404151478 Index #
INDEX : E2024006393
NO. E2024006393
FILED: MONROE COUNTY CLERK 04/15/2024 10:45 AM
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024
AGREEMENT FOR THE PURCHASE AND SALE OF 3808 Union St, 9D,
Flushing, NY 11354
FUTURE RECEIPTS
SELLER INFORMATION:
Seller’s Legal Name: Bella Nails and SPA Inc
DBA: Bella Nails & Spa
Type of Business Entity: Corporation
Primary Address: 4615 Golf Course Rd Antioch CA 94531
Mailing Address:
Primary Contact Name: Chi Thi Nguyen
Primary Contact Email: chitnguyen67@gmail.com
Date of Ownership: Apr-29-2020
Federal Tax ID: 85-1287922
KEY PURCHASE AND SALE TERMS:
Purchase Price: $7,000.00
Origination Fee:
(deducted from origination) $395.00
Bank Fee:
(deducted from origination) $30.00
Net Amount Paid to Seller:
(after fees deduction) $3,957.86
Purchased Amount: $9,450.00
Specified Percentage: 24.23%
Initial Daily Amount: $72.69
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FILED: MONROE COUNTY CLERK 04/15/2024 10:45 AM
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024
AGREEMENT FOR THE PURCHASE AND SALE OF 3808 Union St, 9D,
Flushing, NY 11354
FUTURE RECEIPTS
CONDITIONAL FEES, COSTS, AND EXPENSES (as further explained in Appendix A):
Default Fee: $5,000.00
Applicable and chargeable upon the occurrence of an Event of Default under this Agreement for the
Purchase and Sale of Future Receipts (the “Agreement”).
UCC Fee: $199.00
If, subsequent to funding Seller (as defined below), Buyer (as defined below) files a UCC financing
statement relating to the Purchased-Amount of Future Receipts.
Bank Account Change Fee: $50.00
If Seller changes its Account to be debited.
Bounced ACH Fee: $50.00
Per rejected/bounced ACH charge
ACH Adjustment: $30.00
Per adjustment
Blocked Account Fee: $2,500.00
If Seller: (a) blocks or charges back any of Buyer’s ACH debits of the Account, (b) places a hold or freeze
on the Account (or permits a freeze to remain), (c) allows four (4) or more of Buyer’s ACH debits of the
Account to be bounced, (d) switches credit card processor, or (e) deposits its Future Receipts into an
account other than the designated Account without immediately informing Buyer of the change in
Account.
Collections and Enforcement Fees, Costs and Expenses: All costs and expenses of collections, including reasonable
attorneys’ fees and all costs, fees, and disbursements related to the enforcement of any other remedies available to Buyer, if
Seller defaults.
POTENTIAL REFUND TO YOUR ACCOUNT:
Estimated ACH Lag Refund: As described in more detail in Section 13.4 of this Agreement, ACH transactions will not
immediately cease upon payment in full of the Purchased Amount due to the debit delay at certain of its third-party service
providers, including any entity that processes credit and debit card and other electronic payment transactions for Seller
(“Processors”). If such lag results in Seller being debited for amounts in excess of the sum of the Purchased Amount, plus any
fees and charges payable under this Agreement, Buyer will refund such excess amounts after reconciling with such Processors.
PURCHASE AND SALE OF FUTURE RECEIPTS:
Effective , “Seller”, identified above, hereby sells, assigns, and transfers to Xuper Funding LLC, a NY limited liability company
with a mailing address of 3808 Union Street Suite, 9D-B, Queens, NY 11354 (“Buyer”), without recourse, the Purchased
Amount of receivables specified above (the “Purchased Amount”) by delivering the Specified Percentage of the proceeds of all
future sales made by Seller (collectively “Future Receipts”) until such time as Buyer has received the Purchased Amount
specified above. “Future Receipts” includes all funds received by or payments made to Seller by automated clearinghouse
transaction (“ACH”) or other electronic transfer, credit card, debit card, bank card, charge card (each such card shall be
referred to herein as a “Payment Card”), cash, check, or other form of monetary payment in the ordinary course of Seller’s
business. As payment for the Purchased Amount, Buyer will deliver to Seller the Purchase Price, shown above, minus any
Origination Fee (and any other applicable fees, as specified above or listed on Appendix A) and any balance still due to Buyer
on a prior purchase of receipts from Seller. Seller acknowledges that it has no right to repurchase the Purchased Amount from
Buyer. Seller represents and warrants that the Purchase Price paid by Buyer is good and valuable consideration for the sale of
the Future Receipts.
The obligation of Buyer under this Agreement will not be effective unless and until Buyer has completed its review of Seller
and has accepted this Agreement by delivering the Net Amount Paid to Seller. Prior to accepting this Agreement, Buyer may
conduct a processing trial to confirm its access to Seller’s operating business bank account designated in the Authorization
Agreement for Automated Clearing House Transactions signed on the date of this Agreement (the “ACH Agreement”, in the
form of Appendix B) and the ability to withdraw the Daily Amount from such account. If the processing trial is not completed
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NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024
AGREEMENT FOR THE PURCHASE AND SALE OF 3808 Union St, 9D,
Flushing, NY 11354
FUTURE RECEIPTS
to the satisfaction of Buyer, Buyer will refund to Seller all funds that were obtained by Buyer during the processing trial and
this Agreement shall be considered null and void. The business bank account designated in accordance with this paragraph,
as such account may be amended or replaced from time to time, is referred to herein as the “Account”. This Agreement includes
the Terms and Conditions and all appendices, schedules, and exhibits hereto, and incorporates them all by reference.
The Personal Guaranty of Performance by Guarantor(s) (the “Performance Guaranty”) is attached hereto as Appendix C.
AGREEMENT OF SELLER:
By signing below Seller agrees to the terms and conditions contained in this Agreement, including those Terms and Conditions
on the following pages, and further agrees that this transaction is for business purposes (e.g., to increase or maintain Seller’s
business income), and not for personal, family, or household purposes. By signing below, Seller and each Owner further
acknowledges receipt of the disclosures described or set forth on Appendix E.
Seller: Bella Nails and SPA Inc
FTSIGNATURE:d2081 20cf5cf 4b1d9 58ba 575c88 eef7 2
Agreed to by: Chi thi Nguyen its Owner
Signature Print Name Title
Purchaser: XUPER FUNDING LLC
FTSIGNATURE:dfd7ff 8691f b4040 a9b0 9ab05 00eb 1f9
Agreed to by: Alex Xu CEO
Signature Print Name Title
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E2024006393
FILED: MONROE COUNTY CLERK 04/15/2024 10:45 AM
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024
AGREEMENT FOR THE PURCHASE AND SALE OF 3808 Union St, 9D,
Flushing, NY 11354
FUTURE RECEIPTS
Agreement of Each Owner: Each Owner signing below makes the representations contained in Section 12.5 and
12.9 and agrees to the terms of Section 4.3, Section 19 (Binding Effect, Governing Law, Jurisdiction, Venue, Waiver of
Special Damages, and Stale Claims), Section 24 (Confidentiality), Section 25 (Waiver of Right to Third Party
Representation and Section 26 (Monitoring, Recording, and Solicitations) of the Terms and Conditions, as well as the
Credit Report Authorization (Section 6) the Transactional Report authorization (Section 9) below.
Main Owner
FTSIGNATURE:6f3ec0 bcd08b 4e3d bc8bcfd 31a11 0648
Chi thi Nguyen
Signature Print Name
Second Owner (if any)
FTSIGNATURE:a6d4a 2704 2e743 f18da 7383 89a9 20f8b
Signature Print Name
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FILED: MONROE COUNTY CLERK 04/15/2024 10:45 AM
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024
AGREEMENT FOR THE PURCHASE AND SALE OF 3808 Union St, 9D,
Flushing, NY 11354
FUTURE RECEIPTS
TERMS AND CONDITIONS
1. Delivery of Purchased Amount: Seller must deposit all Future Receipts into the Account and must instruct
each Processor, to batch out and deposit all Payment Card receipts of Seller into the Account on a daily basis.
Seller agrees not to redirect the Payment Card receipts into a different account, change the Account or add
an additional Account without the express written consent of Buyer. Seller authorizes Buyer to debit the daily
amount set forth on the first page of this Agreement (as may be modified in accordance with the terms hereof,
the “Daily Amount”) from the Account each business day, by either ACH or electronic check. Seller will
provide Buyer with all required access codes and agrees not to change them without prior written consent
from Buyer. Seller will provide an appropriate ACH authorization to Buyer. Seller will be responsible for any
fees incurred by Buyer resulting from a rejected electronic check or ACH debit attempt. Buyer is not
responsible for any overdrafts, rejected transactions, or corresponding fees charges by bank to Seller that
may result from Buyer’s debiting any amount authorized under the terms of this Agreement. Seller
understands that the foregoing ACH authorization is a fundamental condition to induce Buyer to accept the
Agreement. Consequently, such authorization is intended to be irrevocable until such time that Buyer has
received the Purchased Amount. In the event that Seller changes or permits changes to the Account or the
ACH authorization approved by the Buyer, or adds an additional bank account, Buyer shall have the right –
without waiving any of its rights and remedies and without notice to Seller, any Owner(s), or any
Guarantor(s) -- to notify the new or additional bank of this Agreement and to direct such new or additional
bank to remit to the Buyer all or any portion of the amounts received by such bank as specified in this
Agreement. Seller hereby grants to Buyer an irrevocable power of attorney, which power of attorney shall be
coupled with an interest, and hereby appoints the Buyer, or any of the representatives of Buyer, as Seller’s
attorney in fact, to take any and all action necessary to direct such new or additional bank to remit to Buyer
amounts received by such bank or to take any action or execute any instrument or document to settle all
obligations due to Buyer from Seller, including the power and right to (a) collect monies due or to become
due under or in respect of any of the Future Receipts, (b) receive, endorse and collect any checks, notes,
drafts, instruments, documents or chattel paper, (c) sign Seller’s name on any invoice, bill of lading, or
assignment directing customers or account debtors to make payment directly to Buyer, and (d) file any claims
or take any action or institute any proceeding which Buyer may deem necessary for the collection of any of
the undelivered Purchased Amount, or otherwise to enforce its rights with respect to delivery of the
Purchased Amount.
2. Seller (and Buyer) May Request Changes to the Daily Amount (IMPORTANT PROTECTION FOR SELLER):
The initial Daily Amount is intended to represent the Specified Percentage of Seller’s daily Future Receipts.
As such, (a) so long as no Event of Default has occurred, Seller may request that Buyer conduct a
reconciliation and adjust the Daily Amount to more closely reflect Seller’s actual Future Receipts times the
Specified Percentage and (b) Buyer may request a reconciliation at any time to adjust the Daily Amount to
more closely reflect Seller’s actual Future Receipts times the Specified Percentage.
Regardless of whether it is Seller or Buyer requesting a reconciliation, Seller agrees to provide Buyer, or
Buyer’s representatives, any information requested by Buyer, or Buyer’s representatives, to assist in the
reconciliation process. Upon reasonable verification of such information, Buyer shall adjust the Daily
Amount on a going-forward basis to more closely reflect Seller’s actual Future Receipts times the Specified
Percentage. If the Daily Amount will increase, Buyer will give Seller notice five (5) business days prior to any
such adjustment in the Daily Amount. After each adjustment made pursuant to this paragraph (2), the new
dollar amount shall be deemed the Daily Amount until any subsequent adjustment. Upon five (5) business
days after a request from Buyer, Seller must provide requested information, including bank statements, to
Buyer in any format Buyer, or its representatives, reasonably requests. If Seller fails to send a reconciliation
request within 30 days after the last day of the relevant calendar month, Seller forfeits the right to a
reconciliation with respect to that month.
3. Daily Amount and Redirection of Payment Proceeds Upon Default: Upon the occurrence of an Event of
Default, the Daily Amount shall equal 100% of all Future Receipts, and Buyer shall be entitled to direct any
Processors to remit applicable funds related to such transactions to Seller (“Payment Proceeds”) and to
redirect all Future Receipts, including Payment Proceeds, to Buyer (until Buyer has received the Purchased
Amount, plus any additional fees due and owing under this Agreement), without any advanced notice to or
further consent of Seller.
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FILED: MONROE COUNTY CLERK 04/15/2024 10:45 AM
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024
AGREEMENT FOR THE PURCHASE AND SALE OF 3808 Union St, 9D,
Flushing, NY 11354
FUTURE RECEIPTS
3.1. Direction of Payment Proceeds: Accordingly, Seller hereby irrevocably instructs, authorizes and directs
any Processor to (a) withhold or debit 100% of the Payment Proceeds due from Processor to Seller under
the agreement between Processor and Seller and (b) forward the amount so withheld to Buyer
(immediately upon Processor receiving a “Notice of Default and Invocation of Redirection Rights”
pursuant to this Agreement, without advanced notice to Seller), until Buyer notifies Processor in writing
that all of Seller’s obligations under this Agreement have been satisfied or that a material breach or an
Event of Default by Buyer has occurred under this Agreement so as to eliminate Buyer’s rights hereunder
or Buyer provides alternative instructions to Processor (collectively, “the Buyer Notice”). Such payments
to Buyer shall be made in partial or complete satisfaction of any obligation Processor may have to Seller
under any agreement(s) between Seller and Processor (the “Processing Agreement”). Seller
acknowledges that such payments to Buyer are in addition to any fees owed by Seller to Processor
pursuant to the Processing Agreement.
3.2. Reliance on Buyer Notice: Unless and until Processor is otherwise instructed in writing pursuant to a
Buyer Notice, Seller hereby authorizes and directs Processor to disburse 100% of the Payment Proceeds,
in accordance with the Processing Agreement. Seller acknowledges that in the event there is any dispute
between Buyer and Seller as to whether a material breach or an Event of Default occurred and is
continuing or whether such material breach or Event of Default has been cured, Processor shall be
authorized to rely on the instructions received from Buyer in the Buyer Notice, regardless of whether
conflicting instructions are received from Seller. Seller and Buyer agree to hold Processor harmless in
connection with compliance with the foregoing authorization and directive.
3.3. Indemnification of Processor et al: Seller and Buyer hereby release and shall at all times, jointly and
severally indemnify Processor, Processor’s sponsor or member bank (the “Bank”), any payment network,
and each of such entity’s respective officers, directors, employees, agents and permitted assigns (each an
“Indemnified Party”), and hold each Indemnified Party harmless from and against any and all claims,
demands, causes of action, actions, proceedings, judgments, debts, obligations, liabilities, damages,
fines, fees, penalties, interest obligations, taxes, deficiencies, loss, costs or expenses (including amounts
paid to enforce this provision and amounts paid in settlement, court costs, costs of investigation, fees
and expenses of attorneys, accountants, financial advisors, and other experts) suffered or incurred,
directly or indirectly, by such Indemnified Party arising out of or resulting from Seller’s and/or Buyer’s
directions and Processor’s actions pursuant to this Agreement and any Buyer Notice. Notwithstanding
anything to the contrary in this Agreement, Processor, in its sole and unfettered discretion, may withhold
or suspend payments to Seller and/or Buyer and/or refuse or terminate the provision of payment
processing services to Seller and/or Buyer and may discontinue all actions under a Buyer Notice, if such
withholding, suspension, refusal or termination is consistent with or required by the terms of the
Processing Agreement or any request or direction of Bank or any payment network required by law.
3.4. Processor Security Interests: Seller and Buyer acknowledge that, notwithstanding anything in the
Uniform Commercial Code or similar laws, Processor shall have a first priority security interest over the
Payment Proceeds, and Processor may set off amounts it is owed against funds payable to Seller and/or
Buyer. Seller and Buyer acknowledge and agree that, notwithstanding anything else set forth in this
Agreement, any and all security interests and rights that Buyer may have in and to the Payment Proceeds,
shall at all times be secondary and subordinate to Processor’s rights therein pursuant to the Processing
Agreement. This section of the Agreement and its terms are agreed to for the benefit of Processor, an
express third party beneficiary hereof, and Processor may rely upon its terms.
4. Nonrecourse Sale of Future Receipts (THIS IS NOT A LOAN):
4.1. Seller is selling a portion of a future revenue stream to Buyer at a discount, not borrowing money from
Buyer. There is no interest rate or payment schedule and no time period during which the Purchased
Amount must be collected by Buyer. Buyer assumes the risk that (a) Future Receipts may be remitted
more slowly than Buyer may have anticipated or projected because Seller’s business has slowed down,
and (b) the full Purchased Amount may never be remitted because Seller’s business (or that of its
customers) went bankrupt or otherwise ceased operations in the ordinary course of business, in each
case so long as Seller has not breached this Agreement. Buyer is buying the Purchased Amount of Future
Receipts knowing the risks that Seller’s business may slow down or fail, and Buyer assumes these risks
based on Seller’s representations, warranties, and covenants in this Agreement that are designed to give
Buyer a reasonable and fair opportunity to receive the benefit of its bargain. By this Agreement, Seller
transfers to Buyer full and complete ownership of the Purchased Amount of Future Receipts and Seller
retains no legal or equitable interest therein.
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FILED: MONROE COUNTY CLERK 04/15/2024 10:45 AM
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024
AGREEMENT FOR THE PURCHASE AND SALE OF 3808 Union St, 9D,
Flushing, NY 11354
FUTURE RECEIPTS
4.2. Seller agrees that it will treat Purchase Price and Purchased Amount in a manner consistent with a sale
in its accounting records and tax returns. Seller agrees that Buyer is entitled to audit Seller’s accounting,
banking, and other business records upon reasonable notice in order to verify compliance.
4.3. Seller, Owner(s), and Guarantor(s) waive any rights of privacy, confidentiality or taxpayer privilege in
any such litigation in which Seller, Owner(s) and/or Guarantor(s) assert(s) that the Purchase
Transaction (or a renewal, supplementation or modification of the Purchase Transaction) is anything
other than a sale of future receipts.
5. Fees and Charges: Other than the Bank Fee and Origination Fee, which may be deducted from the initial cash
advance given to Seller, Buyer is not charging any origination or broker fees to Seller. If Seller is charged
another such fee, it is not being charged by Buyer (even though Buyer may process such fee(s) on behalf of a
broker under the ACH Authorization Agreement). A list of all Buyer’s fees and charges netted out of the
Purchase Price are listed on Page 1 and a list of all applicable fees under this Agreement are listed on
Appendix A.
6. Credit Report and Other Authorizations: Seller and each of the Owners and Guarantors signing this
Agreement or the Performance Guaranty authorize Buyer, its agents and representatives and any credit
reporting agency engaged by Buyer, to (a) investigate any references given or any other statements or data
obtained from or about Seller or any of its Owners for the purpose of this Agreement, (b) obtain consumer
and business credit reports on Seller and any of its Owners, and (c) contact personal and business references
provided by Seller in the Application, at any time now or for so long as Seller and/or Owners continue to
have any obligation owed to Buyer as a consequence of this Agreement or for Buyer’s ability to determine
Seller’s eligibility to enter into any future agreement with Buyer.
7. Authorization to Contact Current and Prior Banks and Processors: Seller hereby authorizes Buyer or its
representatives to contact any current or prior Processor, bank, or other financial institution of Seller in order
to obtain whatever information it may require regarding Seller’s transactions with any such bank. Such
information may include but is not limited to, information necessary to verify the amount of Future Receipts
previously processed on behalf of Seller and any fees that may have been charged by the bank. In addition,
Seller authorizes Buyer or its representatives to contact any current or prior bank of Seller for collections and
in order to confirm that Seller is exclusively using the Account identified above, or any other account
approved by Buyer, for the deposit of all business receipts.
8. Financial Information: Seller authorizes Buyer and its representatives to investigate its financial
responsibility and history, and will provide to Buyer or its representatives any authorizations, bank or
financial statements, tax returns, etc., as Buyer or its representatives deem necessary in their sole discretion
prior to or at any time after execution of this Agreement. A photocopy of this authorization will be deemed
acceptable as an authorization for release of financial and credit information. Buyer is authorized to update
such information and financial and credit profiles from time to time as it deems appropriate. Seller waives,
to the maximum extent permitted by law, any claim for damages against Buyer, its representatives or any of
its affiliates relating to any investigation undertaken by or on behalf of Buyer as permitted by this Agreement
or disclosure of information as permitted by this Agreement.
9. Transactional History: Seller, Guarantor(s) and Owner(s) authorize all of their current and future financial
institutions, banks, brokers and Processors to provide Buyer or its representatives with Seller’s banking,
brokerage and/or processing history and records to determine qualification or continuation in this program,
or for collections upon an Event of Default.
10. Publicity: Seller hereby authorizes Buyer to use its name in listings of clients and in advertising and
marketing materials.
11. Application of Amounts Received by Buyer: Buyer reserves the right to apply amounts received by it under
this Agreement to any fees or other charges due to Buyer from Seller prior to applying such amounts to reduce
the amount of any outstanding Purchased Amount.
12. Representations, Warranties and Covenants of Seller:
12.1. Good Faith, Best Efforts and Due Diligence: Seller will conduct its business in good faith and will use its
best efforts to continue its business at least at its current level, to enable Buyer to obtain the Purchased
Amount. Included among this is Seller’s obligation to perform commercially reasonable due diligence
investigation (which may include credit checks) of its customers before extending credit to its customers.
12.2. No Additional Encumbrances: Seller shall not enter into any merchant cash advance or any loan
agreement that relates to or involves its Future Receipts with any party other than Buyer for the duration
of this Agreement. Buyer may share information regarding Seller or this Agreement with any third party
in order to determine whether Seller is in compliance with this provision.
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FILED: MONROE COUNTY CLERK 04/15/2024 10:45 AM
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024
AGREEMENT FOR THE PURCHASE AND SALE OF 3808 Union St, 9D,
Flushing, NY 11354
FUTURE RECEIPTS
12.3. Financial Condition and Financial Information: Any bank, Processor and other financial statements of
Seller that have been furnished to Buyer, and future such statements that will be furnished to Buyer,
fairly represent the financial condition of Seller at such dates, and Seller will notify Buyer immediately
if there are material adverse changes, financial or otherwise, in the condition or operation of Seller or
any change in the ownership of Seller. Buyer may request statements at any time during the performance
of this Agreement and Seller shall provide them to Buyer, or its representatives, within five (5) business
days. Furthermore, Seller represents that all documents, forms and recorded interviews provided to or
with Buyer are true, accurate and complete in all respects, and accurately reflect Seller’s financial
condition and results of operations at the time provided. Seller further agrees to authorize the release of
any past or future tax returns to Buyer or its representatives.
12.4. Governmental Approvals : Seller is in compliance and shall comply with all laws and has valid permits,
authorizations and licenses to own, operate and lease its properties and to conduct the business in which
it is presently engaged and/or will engage in hereafter.
12.5. Authority to Enter Into This Agreement : Seller, each Owner, each Guarantor and each of the person(s)
signing this Agreement or the Performance Guaranty on behalf of Seller or any Guarantor, have full
power and authority to incur and perform the obligations under this Agreement or the Performance
Guaranty, as applicable, all of which have been duly authorized.
12.6. Change of Name or Location or Sale or Closing of Business: Seller will not conduct Seller’s businesses
under any name other than as disclosed to Buyer or change any of its places of business without prior
written consent of Buyer. Seller will not voluntarily sell, dispose, transfer or otherwise convey all or
substantially all of its business or assets without (a) the express prior written consent of Buyer, and (b)
the written agreement of any purchaser or transferee assuming all of Seller’s obligations under this
Agreement pursuant to documentation satisfactory to Buyer. Except as disclosed to Buyer in writing,
Seller has no current plans to close its business either temporarily, whether for renovations, repairs or
any other purpose, or permanently. Seller will not voluntarily close its business on a temporarily basis
for renovations, repairs, or any other purposes. This provision, however, does not prohibit Seller from
closing its business temporarily if such closing is required to conduct renovations or repairs that are
required by local ordinance or other legal order, such as from a health or fire inspector, or if otherwise
forced to do so by circumstances outside of the control of Seller. Prior to any such closure, Seller will
provide Buyer ten business days’ notice to the extent practicable.
12.7. No Pending or Contemplated Bankruptcy: As of the date Seller executes this Agreement, Seller does not
contemplate and has not filed any petition for bankruptcy protection under either Title 7 or Title 11 of
the United States Bankruptcy Code, or any similar federal or state law for the relief of debtors, and there
has been no involuntary petition brought or pending against Seller. Seller represents that it has not
consulted with a bankruptcy attorney within six (6) months prior to the date of this Agreement. Seller
further warrants that as of the date Seller executes this Agreement it does not anticipate filing a
bankruptcy petition and it does not anticipate that an involuntary petition will be filed against it under
the United States Bankruptcy Code, or any similar federal or state law for the relief of debtors. Seller
shall give Buyer written notice within twenty-four (24) hours of any filing under U.S.C. Title 11 or Title
7, or any similar federal or state law for the relief of debtors.
12.8. Seller to Pay Taxes Promptly: Seller will promptly pay all necessary taxes, including but not limited to
past due or future income, employment, sales, and use taxes.
12.9. No Violation of Prior Agreements: Seller’s, Owner’s and Guarantor’s execution and performance of this
Agreement will not conflict with any other agreement, obligation, promise, court order, administrative
order or decree, law or regulation to which such party is subject, including any agreement that prohibits
the sale or pledge of Seller’s future receipts, and will not violate or constitute a breach of an agreement
with or obligations to a third party and will not constitute an event of default under any third party
agreement between such party and any other person or entity. In the event that any such conflict, breach
or violation does exist or there is any other breach of this representation, Seller shall defend, indemnify
and hold harmless Buyer, its affiliates, and its representatives from any claims by a third party relating
thereto.
12.10. No Liens or Encumbrances: Seller represents, warrants and covenants that (a) the Future Receipts are
not subject to any claims, charges, liens, restrictions, encumbrances or security interests of any nature
whatsoever, except to the extent provided for by this Agreement, and (b) Buyer is purchasing the Future
Receipts free and clear of all claims, liens or encumbrances of any kind whatsoever. Seller agrees that
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FILED: MONROE COUNTY CLERK 04/15/2024 10:45 AM
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024
AGREEMENT FOR THE PURCHASE AND SALE OF 3808 Union St, 9D,
Flushing, NY 11354
FUTURE RECEIPTS
this Agreement applies to Seller’s entire right, title and interest in the Future Receipts up to the
Purchased Amount.
12.11. No Diversion of Receipts. Seller will not permit any event to occur that could cause a diversion of any of
Seller’s Future Receipts from the Account to any other entity.
12.12. Seller’s Knowledge and Representation: Seller represents warrants and agrees that it is a sophisticated
business entity familiar with the kind of transaction covered by the Agreement; it was represented by
counsel or had full opportunity to consult with counsel.
12.13. Misrepresentation: Any misrepresentation made by Seller, Owner(s) or Guarantor(s) in connection with
this Agreement or the Performance Guaranty will constitute an event of default, resulting in the specified
percentage changing to 100%, and Buyer will be entitled to recovery of its losses and also all of its costs,
expenses and reasonable attorneys’ fees.
13. Rights of Buyer:
13.1. Acknowledgement of Security Interest and Security Agreement. The Future Receipts sold by Seller to
Buyer pursuant to this Agreement are “accounts”, “general intangibles”, or “payment intangibles” as
those terms are defined in the Uniform Commercial Code as in effect in the state in which Seller is located
(the “UCC”) and such sale shall constitute and shall be construed and treated for all purposes as a true
and complete sale, conveying good title to the Future Receipts free and clear of any liens and
encumbrances, from Seller to Buyer. To the extent the Future Receipts are “accounts” or “payment
intangibles” then (i) the sale of the Future Receipts creates a security interest as defined in the UCC, (ii)
this Agreement constitutes a “security agreement” under the UCC, and (iii) Buyer has all the rights of a
secured party under the UCC with respect to such Future Receipts. Seller further agrees that, with or
without an Event of Default, Buyer or its representatives may notify account debtors, or other persons
obligated on the Future Receipts, of Seller’s sale of the Future Receipts and may instruct them to make
payment or otherwise render performance to or for the benefit of Buyer. Seller authorizes Buyer, or its
representatives, to file one or more UCC-1 or other forms consistent with the UCC in order to give notice
that the Purchased Amount of Future Receipts is the sole property of Buyer by placing a lien on Seller’s
Future Receipts and all financial accounts in which the Purchased Amount of Future Receipts may be
located, including credit card processor accounts. The UCC filing may state that the Purchase is intended
to be a sale and not an assignment for security and may state that Seller is prohibited from obtaining any
financing that impairs the value of the Future Receipts or Buyer’s right to collect same. Seller also
authorizes Buyer, or its representatives, to file one or more UCC-1 or other forms consistent with the
UC
Preview
FILED: MONROE COUNTY CLERK 04/15/2024 10:45 AM INDEX NO. E2024006393 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3824665 Book Page CIVIL Return To: No. Pages: 19 STEVEN ZAKHARYAYEV 10 W37th Street, RM 602 Instrument: EXHIBIT(S) New York, NY 10018 Control #: 202404151478 Index #: E2024006393 Date: 04/15/2024 XUPER FUNDING LLC Time: 4:16:17 PM Bella Nails and SPA Inc Nguyen, Chi Thi 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 202404151478 Index # INDEX : E2024006393 NO. E2024006393 FILED: MONROE COUNTY CLERK 04/15/2024 10:45 AM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024 AGREEMENT FOR THE PURCHASE AND SALE OF 3808 Union St, 9D, Flushing, NY 11354 FUTURE RECEIPTS SELLER INFORMATION: Seller’s Legal Name: Bella Nails and SPA Inc DBA: Bella Nails & Spa Type of Business Entity: Corporation Primary Address: 4615 Golf Course Rd Antioch CA 94531 Mailing Address: Primary Contact Name: Chi Thi Nguyen Primary Contact Email: chitnguyen67@gmail.com Date of Ownership: Apr-29-2020 Federal Tax ID: 85-1287922 KEY PURCHASE AND SALE TERMS: Purchase Price: $7,000.00 Origination Fee: (deducted from origination) $395.00 Bank Fee: (deducted from origination) $30.00 Net Amount Paid to Seller: (after fees deduction) $3,957.86 Purchased Amount: $9,450.00 Specified Percentage: 24.23% Initial Daily Amount: $72.69 Page 1 202404151478 IndexNO. INDEX #: E2024006393 E2024006393 FILED: MONROE COUNTY CLERK 04/15/2024 10:45 AM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024 AGREEMENT FOR THE PURCHASE AND SALE OF 3808 Union St, 9D, Flushing, NY 11354 FUTURE RECEIPTS CONDITIONAL FEES, COSTS, AND EXPENSES (as further explained in Appendix A): Default Fee: $5,000.00 Applicable and chargeable upon the occurrence of an Event of Default under this Agreement for the Purchase and Sale of Future Receipts (the “Agreement”). UCC Fee: $199.00 If, subsequent to funding Seller (as defined below), Buyer (as defined below) files a UCC financing statement relating to the Purchased-Amount of Future Receipts. Bank Account Change Fee: $50.00 If Seller changes its Account to be debited. Bounced ACH Fee: $50.00 Per rejected/bounced ACH charge ACH Adjustment: $30.00 Per adjustment Blocked Account Fee: $2,500.00 If Seller: (a) blocks or charges back any of Buyer’s ACH debits of the Account, (b) places a hold or freeze on the Account (or permits a freeze to remain), (c) allows four (4) or more of Buyer’s ACH debits of the Account to be bounced, (d) switches credit card processor, or (e) deposits its Future Receipts into an account other than the designated Account without immediately informing Buyer of the change in Account. Collections and Enforcement Fees, Costs and Expenses: All costs and expenses of collections, including reasonable attorneys’ fees and all costs, fees, and disbursements related to the enforcement of any other remedies available to Buyer, if Seller defaults. POTENTIAL REFUND TO YOUR ACCOUNT: Estimated ACH Lag Refund: As described in more detail in Section 13.4 of this Agreement, ACH transactions will not immediately cease upon payment in full of the Purchased Amount due to the debit delay at certain of its third-party service providers, including any entity that processes credit and debit card and other electronic payment transactions for Seller (“Processors”). If such lag results in Seller being debited for amounts in excess of the sum of the Purchased Amount, plus any fees and charges payable under this Agreement, Buyer will refund such excess amounts after reconciling with such Processors. PURCHASE AND SALE OF FUTURE RECEIPTS: Effective , “Seller”, identified above, hereby sells, assigns, and transfers to Xuper Funding LLC, a NY limited liability company with a mailing address of 3808 Union Street Suite, 9D-B, Queens, NY 11354 (“Buyer”), without recourse, the Purchased Amount of receivables specified above (the “Purchased Amount”) by delivering the Specified Percentage of the proceeds of all future sales made by Seller (collectively “Future Receipts”) until such time as Buyer has received the Purchased Amount specified above. “Future Receipts” includes all funds received by or payments made to Seller by automated clearinghouse transaction (“ACH”) or other electronic transfer, credit card, debit card, bank card, charge card (each such card shall be referred to herein as a “Payment Card”), cash, check, or other form of monetary payment in the ordinary course of Seller’s business. As payment for the Purchased Amount, Buyer will deliver to Seller the Purchase Price, shown above, minus any Origination Fee (and any other applicable fees, as specified above or listed on Appendix A) and any balance still due to Buyer on a prior purchase of receipts from Seller. Seller acknowledges that it has no right to repurchase the Purchased Amount from Buyer. Seller represents and warrants that the Purchase Price paid by Buyer is good and valuable consideration for the sale of the Future Receipts. The obligation of Buyer under this Agreement will not be effective unless and until Buyer has completed its review of Seller and has accepted this Agreement by delivering the Net Amount Paid to Seller. Prior to accepting this Agreement, Buyer may conduct a processing trial to confirm its access to Seller’s operating business bank account designated in the Authorization Agreement for Automated Clearing House Transactions signed on the date of this Agreement (the “ACH Agreement”, in the form of Appendix B) and the ability to withdraw the Daily Amount from such account. If the processing trial is not completed Page 2 202404151478 IndexNO. INDEX #: E2024006393 E2024006393 FILED: MONROE COUNTY CLERK 04/15/2024 10:45 AM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024 AGREEMENT FOR THE PURCHASE AND SALE OF 3808 Union St, 9D, Flushing, NY 11354 FUTURE RECEIPTS to the satisfaction of Buyer, Buyer will refund to Seller all funds that were obtained by Buyer during the processing trial and this Agreement shall be considered null and void. The business bank account designated in accordance with this paragraph, as such account may be amended or replaced from time to time, is referred to herein as the “Account”. This Agreement includes the Terms and Conditions and all appendices, schedules, and exhibits hereto, and incorporates them all by reference. The Personal Guaranty of Performance by Guarantor(s) (the “Performance Guaranty”) is attached hereto as Appendix C. AGREEMENT OF SELLER: By signing below Seller agrees to the terms and conditions contained in this Agreement, including those Terms and Conditions on the following pages, and further agrees that this transaction is for business purposes (e.g., to increase or maintain Seller’s business income), and not for personal, family, or household purposes. By signing below, Seller and each Owner further acknowledges receipt of the disclosures described or set forth on Appendix E. Seller: Bella Nails and SPA Inc FTSIGNATURE:d2081 20cf5cf 4b1d9 58ba 575c88 eef7 2 Agreed to by: Chi thi Nguyen its Owner Signature Print Name Title Purchaser: XUPER FUNDING LLC FTSIGNATURE:dfd7ff 8691f b4040 a9b0 9ab05 00eb 1f9 Agreed to by: Alex Xu CEO Signature Print Name Title Page 3 202404151478 IndexNO. INDEX #: E2024006393 E2024006393 FILED: MONROE COUNTY CLERK 04/15/2024 10:45 AM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024 AGREEMENT FOR THE PURCHASE AND SALE OF 3808 Union St, 9D, Flushing, NY 11354 FUTURE RECEIPTS Agreement of Each Owner: Each Owner signing below makes the representations contained in Section 12.5 and 12.9 and agrees to the terms of Section 4.3, Section 19 (Binding Effect, Governing Law, Jurisdiction, Venue, Waiver of Special Damages, and Stale Claims), Section 24 (Confidentiality), Section 25 (Waiver of Right to Third Party Representation and Section 26 (Monitoring, Recording, and Solicitations) of the Terms and Conditions, as well as the Credit Report Authorization (Section 6) the Transactional Report authorization (Section 9) below. Main Owner FTSIGNATURE:6f3ec0 bcd08b 4e3d bc8bcfd 31a11 0648 Chi thi Nguyen Signature Print Name Second Owner (if any) FTSIGNATURE:a6d4a 2704 2e743 f18da 7383 89a9 20f8b Signature Print Name Page 4 202404151478 IndexNO. INDEX #: E2024006393 E2024006393 FILED: MONROE COUNTY CLERK 04/15/2024 10:45 AM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024 AGREEMENT FOR THE PURCHASE AND SALE OF 3808 Union St, 9D, Flushing, NY 11354 FUTURE RECEIPTS TERMS AND CONDITIONS 1. Delivery of Purchased Amount: Seller must deposit all Future Receipts into the Account and must instruct each Processor, to batch out and deposit all Payment Card receipts of Seller into the Account on a daily basis. Seller agrees not to redirect the Payment Card receipts into a different account, change the Account or add an additional Account without the express written consent of Buyer. Seller authorizes Buyer to debit the daily amount set forth on the first page of this Agreement (as may be modified in accordance with the terms hereof, the “Daily Amount”) from the Account each business day, by either ACH or electronic check. Seller will provide Buyer with all required access codes and agrees not to change them without prior written consent from Buyer. Seller will provide an appropriate ACH authorization to Buyer. Seller will be responsible for any fees incurred by Buyer resulting from a rejected electronic check or ACH debit attempt. Buyer is not responsible for any overdrafts, rejected transactions, or corresponding fees charges by bank to Seller that may result from Buyer’s debiting any amount authorized under the terms of this Agreement. Seller understands that the foregoing ACH authorization is a fundamental condition to induce Buyer to accept the Agreement. Consequently, such authorization is intended to be irrevocable until such time that Buyer has received the Purchased Amount. In the event that Seller changes or permits changes to the Account or the ACH authorization approved by the Buyer, or adds an additional bank account, Buyer shall have the right – without waiving any of its rights and remedies and without notice to Seller, any Owner(s), or any Guarantor(s) -- to notify the new or additional bank of this Agreement and to direct such new or additional bank to remit to the Buyer all or any portion of the amounts received by such bank as specified in this Agreement. Seller hereby grants to Buyer an irrevocable power of attorney, which power of attorney shall be coupled with an interest, and hereby appoints the Buyer, or any of the representatives of Buyer, as Seller’s attorney in fact, to take any and all action necessary to direct such new or additional bank to remit to Buyer amounts received by such bank or to take any action or execute any instrument or document to settle all obligations due to Buyer from Seller, including the power and right to (a) collect monies due or to become due under or in respect of any of the Future Receipts, (b) receive, endorse and collect any checks, notes, drafts, instruments, documents or chattel paper, (c) sign Seller’s name on any invoice, bill of lading, or assignment directing customers or account debtors to make payment directly to Buyer, and (d) file any claims or take any action or institute any proceeding which Buyer may deem necessary for the collection of any of the undelivered Purchased Amount, or otherwise to enforce its rights with respect to delivery of the Purchased Amount. 2. Seller (and Buyer) May Request Changes to the Daily Amount (IMPORTANT PROTECTION FOR SELLER): The initial Daily Amount is intended to represent the Specified Percentage of Seller’s daily Future Receipts. As such, (a) so long as no Event of Default has occurred, Seller may request that Buyer conduct a reconciliation and adjust the Daily Amount to more closely reflect Seller’s actual Future Receipts times the Specified Percentage and (b) Buyer may request a reconciliation at any time to adjust the Daily Amount to more closely reflect Seller’s actual Future Receipts times the Specified Percentage. Regardless of whether it is Seller or Buyer requesting a reconciliation, Seller agrees to provide Buyer, or Buyer’s representatives, any information requested by Buyer, or Buyer’s representatives, to assist in the reconciliation process. Upon reasonable verification of such information, Buyer shall adjust the Daily Amount on a going-forward basis to more closely reflect Seller’s actual Future Receipts times the Specified Percentage. If the Daily Amount will increase, Buyer will give Seller notice five (5) business days prior to any such adjustment in the Daily Amount. After each adjustment made pursuant to this paragraph (2), the new dollar amount shall be deemed the Daily Amount until any subsequent adjustment. Upon five (5) business days after a request from Buyer, Seller must provide requested information, including bank statements, to Buyer in any format Buyer, or its representatives, reasonably requests. If Seller fails to send a reconciliation request within 30 days after the last day of the relevant calendar month, Seller forfeits the right to a reconciliation with respect to that month. 3. Daily Amount and Redirection of Payment Proceeds Upon Default: Upon the occurrence of an Event of Default, the Daily Amount shall equal 100% of all Future Receipts, and Buyer shall be entitled to direct any Processors to remit applicable funds related to such transactions to Seller (“Payment Proceeds”) and to redirect all Future Receipts, including Payment Proceeds, to Buyer (until Buyer has received the Purchased Amount, plus any additional fees due and owing under this Agreement), without any advanced notice to or further consent of Seller. Page 5 202404151478 IndexNO. INDEX #: E2024006393 E2024006393 FILED: MONROE COUNTY CLERK 04/15/2024 10:45 AM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024 AGREEMENT FOR THE PURCHASE AND SALE OF 3808 Union St, 9D, Flushing, NY 11354 FUTURE RECEIPTS 3.1. Direction of Payment Proceeds: Accordingly, Seller hereby irrevocably instructs, authorizes and directs any Processor to (a) withhold or debit 100% of the Payment Proceeds due from Processor to Seller under the agreement between Processor and Seller and (b) forward the amount so withheld to Buyer (immediately upon Processor receiving a “Notice of Default and Invocation of Redirection Rights” pursuant to this Agreement, without advanced notice to Seller), until Buyer notifies Processor in writing that all of Seller’s obligations under this Agreement have been satisfied or that a material breach or an Event of Default by Buyer has occurred under this Agreement so as to eliminate Buyer’s rights hereunder or Buyer provides alternative instructions to Processor (collectively, “the Buyer Notice”). Such payments to Buyer shall be made in partial or complete satisfaction of any obligation Processor may have to Seller under any agreement(s) between Seller and Processor (the “Processing Agreement”). Seller acknowledges that such payments to Buyer are in addition to any fees owed by Seller to Processor pursuant to the Processing Agreement. 3.2. Reliance on Buyer Notice: Unless and until Processor is otherwise instructed in writing pursuant to a Buyer Notice, Seller hereby authorizes and directs Processor to disburse 100% of the Payment Proceeds, in accordance with the Processing Agreement. Seller acknowledges that in the event there is any dispute between Buyer and Seller as to whether a material breach or an Event of Default occurred and is continuing or whether such material breach or Event of Default has been cured, Processor shall be authorized to rely on the instructions received from Buyer in the Buyer Notice, regardless of whether conflicting instructions are received from Seller. Seller and Buyer agree to hold Processor harmless in connection with compliance with the foregoing authorization and directive. 3.3. Indemnification of Processor et al: Seller and Buyer hereby release and shall at all times, jointly and severally indemnify Processor, Processor’s sponsor or member bank (the “Bank”), any payment network, and each of such entity’s respective officers, directors, employees, agents and permitted assigns (each an “Indemnified Party”), and hold each Indemnified Party harmless from and against any and all claims, demands, causes of action, actions, proceedings, judgments, debts, obligations, liabilities, damages, fines, fees, penalties, interest obligations, taxes, deficiencies, loss, costs or expenses (including amounts paid to enforce this provision and amounts paid in settlement, court costs, costs of investigation, fees and expenses of attorneys, accountants, financial advisors, and other experts) suffered or incurred, directly or indirectly, by such Indemnified Party arising out of or resulting from Seller’s and/or Buyer’s directions and Processor’s actions pursuant to this Agreement and any Buyer Notice. Notwithstanding anything to the contrary in this Agreement, Processor, in its sole and unfettered discretion, may withhold or suspend payments to Seller and/or Buyer and/or refuse or terminate the provision of payment processing services to Seller and/or Buyer and may discontinue all actions under a Buyer Notice, if such withholding, suspension, refusal or termination is consistent with or required by the terms of the Processing Agreement or any request or direction of Bank or any payment network required by law. 3.4. Processor Security Interests: Seller and Buyer acknowledge that, notwithstanding anything in the Uniform Commercial Code or similar laws, Processor shall have a first priority security interest over the Payment Proceeds, and Processor may set off amounts it is owed against funds payable to Seller and/or Buyer. Seller and Buyer acknowledge and agree that, notwithstanding anything else set forth in this Agreement, any and all security interests and rights that Buyer may have in and to the Payment Proceeds, shall at all times be secondary and subordinate to Processor’s rights therein pursuant to the Processing Agreement. This section of the Agreement and its terms are agreed to for the benefit of Processor, an express third party beneficiary hereof, and Processor may rely upon its terms. 4. Nonrecourse Sale of Future Receipts (THIS IS NOT A LOAN): 4.1. Seller is selling a portion of a future revenue stream to Buyer at a discount, not borrowing money from Buyer. There is no interest rate or payment schedule and no time period during which the Purchased Amount must be collected by Buyer. Buyer assumes the risk that (a) Future Receipts may be remitted more slowly than Buyer may have anticipated or projected because Seller’s business has slowed down, and (b) the full Purchased Amount may never be remitted because Seller’s business (or that of its customers) went bankrupt or otherwise ceased operations in the ordinary course of business, in each case so long as Seller has not breached this Agreement. Buyer is buying the Purchased Amount of Future Receipts knowing the risks that Seller’s business may slow down or fail, and Buyer assumes these risks based on Seller’s representations, warranties, and covenants in this Agreement that are designed to give Buyer a reasonable and fair opportunity to receive the benefit of its bargain. By this Agreement, Seller transfers to Buyer full and complete ownership of the Purchased Amount of Future Receipts and Seller retains no legal or equitable interest therein. Page 6 202404151478 IndexNO. INDEX #: E2024006393 E2024006393 FILED: MONROE COUNTY CLERK 04/15/2024 10:45 AM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024 AGREEMENT FOR THE PURCHASE AND SALE OF 3808 Union St, 9D, Flushing, NY 11354 FUTURE RECEIPTS 4.2. Seller agrees that it will treat Purchase Price and Purchased Amount in a manner consistent with a sale in its accounting records and tax returns. Seller agrees that Buyer is entitled to audit Seller’s accounting, banking, and other business records upon reasonable notice in order to verify compliance. 4.3. Seller, Owner(s), and Guarantor(s) waive any rights of privacy, confidentiality or taxpayer privilege in any such litigation in which Seller, Owner(s) and/or Guarantor(s) assert(s) that the Purchase Transaction (or a renewal, supplementation or modification of the Purchase Transaction) is anything other than a sale of future receipts. 5. Fees and Charges: Other than the Bank Fee and Origination Fee, which may be deducted from the initial cash advance given to Seller, Buyer is not charging any origination or broker fees to Seller. If Seller is charged another such fee, it is not being charged by Buyer (even though Buyer may process such fee(s) on behalf of a broker under the ACH Authorization Agreement). A list of all Buyer’s fees and charges netted out of the Purchase Price are listed on Page 1 and a list of all applicable fees under this Agreement are listed on Appendix A. 6. Credit Report and Other Authorizations: Seller and each of the Owners and Guarantors signing this Agreement or the Performance Guaranty authorize Buyer, its agents and representatives and any credit reporting agency engaged by Buyer, to (a) investigate any references given or any other statements or data obtained from or about Seller or any of its Owners for the purpose of this Agreement, (b) obtain consumer and business credit reports on Seller and any of its Owners, and (c) contact personal and business references provided by Seller in the Application, at any time now or for so long as Seller and/or Owners continue to have any obligation owed to Buyer as a consequence of this Agreement or for Buyer’s ability to determine Seller’s eligibility to enter into any future agreement with Buyer. 7. Authorization to Contact Current and Prior Banks and Processors: Seller hereby authorizes Buyer or its representatives to contact any current or prior Processor, bank, or other financial institution of Seller in order to obtain whatever information it may require regarding Seller’s transactions with any such bank. Such information may include but is not limited to, information necessary to verify the amount of Future Receipts previously processed on behalf of Seller and any fees that may have been charged by the bank. In addition, Seller authorizes Buyer or its representatives to contact any current or prior bank of Seller for collections and in order to confirm that Seller is exclusively using the Account identified above, or any other account approved by Buyer, for the deposit of all business receipts. 8. Financial Information: Seller authorizes Buyer and its representatives to investigate its financial responsibility and history, and will provide to Buyer or its representatives any authorizations, bank or financial statements, tax returns, etc., as Buyer or its representatives deem necessary in their sole discretion prior to or at any time after execution of this Agreement. A photocopy of this authorization will be deemed acceptable as an authorization for release of financial and credit information. Buyer is authorized to update such information and financial and credit profiles from time to time as it deems appropriate. Seller waives, to the maximum extent permitted by law, any claim for damages against Buyer, its representatives or any of its affiliates relating to any investigation undertaken by or on behalf of Buyer as permitted by this Agreement or disclosure of information as permitted by this Agreement. 9. Transactional History: Seller, Guarantor(s) and Owner(s) authorize all of their current and future financial institutions, banks, brokers and Processors to provide Buyer or its representatives with Seller’s banking, brokerage and/or processing history and records to determine qualification or continuation in this program, or for collections upon an Event of Default. 10. Publicity: Seller hereby authorizes Buyer to use its name in listings of clients and in advertising and marketing materials. 11. Application of Amounts Received by Buyer: Buyer reserves the right to apply amounts received by it under this Agreement to any fees or other charges due to Buyer from Seller prior to applying such amounts to reduce the amount of any outstanding Purchased Amount. 12. Representations, Warranties and Covenants of Seller: 12.1. Good Faith, Best Efforts and Due Diligence: Seller will conduct its business in good faith and will use its best efforts to continue its business at least at its current level, to enable Buyer to obtain the Purchased Amount. Included among this is Seller’s obligation to perform commercially reasonable due diligence investigation (which may include credit checks) of its customers before extending credit to its customers. 12.2. No Additional Encumbrances: Seller shall not enter into any merchant cash advance or any loan agreement that relates to or involves its Future Receipts with any party other than Buyer for the duration of this Agreement. Buyer may share information regarding Seller or this Agreement with any third party in order to determine whether Seller is in compliance with this provision. Page 7 202404151478 IndexNO. INDEX #: E2024006393 E2024006393 FILED: MONROE COUNTY CLERK 04/15/2024 10:45 AM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024 AGREEMENT FOR THE PURCHASE AND SALE OF 3808 Union St, 9D, Flushing, NY 11354 FUTURE RECEIPTS 12.3. Financial Condition and Financial Information: Any bank, Processor and other financial statements of Seller that have been furnished to Buyer, and future such statements that will be furnished to Buyer, fairly represent the financial condition of Seller at such dates, and Seller will notify Buyer immediately if there are material adverse changes, financial or otherwise, in the condition or operation of Seller or any change in the ownership of Seller. Buyer may request statements at any time during the performance of this Agreement and Seller shall provide them to Buyer, or its representatives, within five (5) business days. Furthermore, Seller represents that all documents, forms and recorded interviews provided to or with Buyer are true, accurate and complete in all respects, and accurately reflect Seller’s financial condition and results of operations at the time provided. Seller further agrees to authorize the release of any past or future tax returns to Buyer or its representatives. 12.4. Governmental Approvals : Seller is in compliance and shall comply with all laws and has valid permits, authorizations and licenses to own, operate and lease its properties and to conduct the business in which it is presently engaged and/or will engage in hereafter. 12.5. Authority to Enter Into This Agreement : Seller, each Owner, each Guarantor and each of the person(s) signing this Agreement or the Performance Guaranty on behalf of Seller or any Guarantor, have full power and authority to incur and perform the obligations under this Agreement or the Performance Guaranty, as applicable, all of which have been duly authorized. 12.6. Change of Name or Location or Sale or Closing of Business: Seller will not conduct Seller’s businesses under any name other than as disclosed to Buyer or change any of its places of business without prior written consent of Buyer. Seller will not voluntarily sell, dispose, transfer or otherwise convey all or substantially all of its business or assets without (a) the express prior written consent of Buyer, and (b) the written agreement of any purchaser or transferee assuming all of Seller’s obligations under this Agreement pursuant to documentation satisfactory to Buyer. Except as disclosed to Buyer in writing, Seller has no current plans to close its business either temporarily, whether for renovations, repairs or any other purpose, or permanently. Seller will not voluntarily close its business on a temporarily basis for renovations, repairs, or any other purposes. This provision, however, does not prohibit Seller from closing its business temporarily if such closing is required to conduct renovations or repairs that are required by local ordinance or other legal order, such as from a health or fire inspector, or if otherwise forced to do so by circumstances outside of the control of Seller. Prior to any such closure, Seller will provide Buyer ten business days’ notice to the extent practicable. 12.7. No Pending or Contemplated Bankruptcy: As of the date Seller executes this Agreement, Seller does not contemplate and has not filed any petition for bankruptcy protection under either Title 7 or Title 11 of the United States Bankruptcy Code, or any similar federal or state law for the relief of debtors, and there has been no involuntary petition brought or pending against Seller. Seller represents that it has not consulted with a bankruptcy attorney within six (6) months prior to the date of this Agreement. Seller further warrants that as of the date Seller executes this Agreement it does not anticipate filing a bankruptcy petition and it does not anticipate that an involuntary petition will be filed against it under the United States Bankruptcy Code, or any similar federal or state law for the relief of debtors. Seller shall give Buyer written notice within twenty-four (24) hours of any filing under U.S.C. Title 11 or Title 7, or any similar federal or state law for the relief of debtors. 12.8. Seller to Pay Taxes Promptly: Seller will promptly pay all necessary taxes, including but not limited to past due or future income, employment, sales, and use taxes. 12.9. No Violation of Prior Agreements: Seller’s, Owner’s and Guarantor’s execution and performance of this Agreement will not conflict with any other agreement, obligation, promise, court order, administrative order or decree, law or regulation to which such party is subject, including any agreement that prohibits the sale or pledge of Seller’s future receipts, and will not violate or constitute a breach of an agreement with or obligations to a third party and will not constitute an event of default under any third party agreement between such party and any other person or entity. In the event that any such conflict, breach or violation does exist or there is any other breach of this representation, Seller shall defend, indemnify and hold harmless Buyer, its affiliates, and its representatives from any claims by a third party relating thereto. 12.10. No Liens or Encumbrances: Seller represents, warrants and covenants that (a) the Future Receipts are not subject to any claims, charges, liens, restrictions, encumbrances or security interests of any nature whatsoever, except to the extent provided for by this Agreement, and (b) Buyer is purchasing the Future Receipts free and clear of all claims, liens or encumbrances of any kind whatsoever. Seller agrees that Page 8 202404151478 IndexNO. INDEX #: E2024006393 E2024006393 FILED: MONROE COUNTY CLERK 04/15/2024 10:45 AM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024 AGREEMENT FOR THE PURCHASE AND SALE OF 3808 Union St, 9D, Flushing, NY 11354 FUTURE RECEIPTS this Agreement applies to Seller’s entire right, title and interest in the Future Receipts up to the Purchased Amount. 12.11. No Diversion of Receipts. Seller will not permit any event to occur that could cause a diversion of any of Seller’s Future Receipts from the Account to any other entity. 12.12. Seller’s Knowledge and Representation: Seller represents warrants and agrees that it is a sophisticated business entity familiar with the kind of transaction covered by the Agreement; it was represented by counsel or had full opportunity to consult with counsel. 12.13. Misrepresentation: Any misrepresentation made by Seller, Owner(s) or Guarantor(s) in connection with this Agreement or the Performance Guaranty will constitute an event of default, resulting in the specified percentage changing to 100%, and Buyer will be entitled to recovery of its losses and also all of its costs, expenses and reasonable attorneys’ fees. 13. Rights of Buyer: 13.1. Acknowledgement of Security Interest and Security Agreement. The Future Receipts sold by Seller to Buyer pursuant to this Agreement are “accounts”, “general intangibles”, or “payment intangibles” as those terms are defined in the Uniform Commercial Code as in effect in the state in which Seller is located (the “UCC”) and such sale shall constitute and shall be construed and treated for all purposes as a true and complete sale, conveying good title to the Future Receipts free and clear of any liens and encumbrances, from Seller to Buyer. To the extent the Future Receipts are “accounts” or “payment intangibles” then (i) the sale of the Future Receipts creates a security interest as defined in the UCC, (ii) this Agreement constitutes a “security agreement” under the UCC, and (iii) Buyer has all the rights of a secured party under the UCC with respect to such Future Receipts. Seller further agrees that, with or without an Event of Default, Buyer or its representatives may notify account debtors, or other persons obligated on the Future Receipts, of Seller’s sale of the Future Receipts and may instruct them to make payment or otherwise render performance to or for the benefit of Buyer. Seller authorizes Buyer, or its representatives, to file one or more UCC-1 or other forms consistent with the UCC in order to give notice that the Purchased Amount of Future Receipts is the sole property of Buyer by placing a lien on Seller’s Future Receipts and all financial accounts in which the Purchased Amount of Future Receipts may be located, including credit card processor accounts. The UCC filing may state that the Purchase is intended to be a sale and not an assignment for security and may state that Seller is prohibited from obtaining any financing that impairs the value of the Future Receipts or Buyer’s right to collect same. Seller also authorizes Buyer, or its representatives, to file one or more UCC-1 or other forms consistent with the UC