Preview
INDEX NO. E2024006695
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/19/2024
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3832125
Book Page CIVIL
Return To: No. Pages: 21
STEVEN ZAKHARYAYEV
10 W37th Street, RM 602 Instrument: EXHIBIT(S)
New York, NY 10018
Control #: 202404190748
Index #: E2024006695
Date: 04/19/2024
EMMY CAPITAL GROUP LLC Time: 11:32:47 AM
J Renee Enterprises LLC
Blackmon, Jeannetta
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
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Tel: (347) 986-0844
Uw@emmycapitalgroup.com
EMMY
CAPITAL GROUP
FUTURE RECEIVABLES SALE AND PURCHASE AGREEMENT
This agreement(this“Agreement”), dated 03/12/2024 , between EMMY CAPITAL GROUP ("ECG") and the seller(s) listed
herein (collectively, the "Seller”) (all capitalized terms shall have the meanings ascribed to them below):
Business Legal Name: J Renee Enterprises LLC
D/B/A: J Renee Enterprises LLC
Form of Business Entity: corporation EIN #: 3
Physical Address: 1925 wright Ra indian Trail, NC 28079
Mailing Address: 1925 Wright Rd Indian Trail, NC 28079
PURCHASE PRICE: PURCHASED AMOUNT: SPECIFIED PERCENTAGE: INITIAL Daily [NSTALLMENT:
$5,000.00 $7,495.00 04% $ 107.08
DocuSigned by:
FOR THE SELLER #1 FOR THE SELLER#2
Jranurtta Blackmou,
By: 217 CCC3AOF, By:
Name: Jeannetta Blackmon Name:
Title: Owner Title: owner
Email: jeannetta@jreneeinc.com Email:
Business Phone: (980) 837-2742 Business Phone:
“Accurate contact information is required to provide the Seller with important information regarding the Agreement.
Concurrently with the execution of this Agreement by Seller, and as condition to the effectiveness hereof, Seller has caused the
Personal Guarantee of Performance in the form attached hereto as “Exhibit A” (the “Guaranty”) to be signed and delivered to
ECG by the following Owner(s) /Guarantor(s) of Seller.
OWNER/GUARANTOR #1 DocuSigned by: OWNER/GUARANTOR #2
> By: By:
Name: Jeannetta Blackmon Name:
SSN:
Phone:
Address: 10108 BARRANDS LN CHARLOTTE, NC 28278 Address:
Furthermore, in the event the Seller and/or Guarantor are comprised of more than one entity and/or individuals, then ALL
such entities and/or individuals, respectively, shall sign the Addendum to this Agreement in the form attached hereto as
Exhibit B (the “Addendum”).
WHEREAS, Seller is desirous to sell to ECG, and ECG is desirous to purchase from Seller a Specified Percentage of the
Seller's Future Receipts, but only on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the mutual receipts and sufficiency of which is hereby
acknowledged by both parties, ECG and Seller hereby agree to the foregoing and as follows:
1. Basic Terms and Definitions.
a. “Effective Date” shall mean the later of: (i) the date set forth in the preamble to this Agreement, and (ii) the date
when ECG paid the Purchase Price to Seller.
b. “Specified Percentage” shall mean FIFTEEN PERCENT (15%) of each and every sum from sale made by Seller of
Future Receipts.
c. “Future Receipts” shall mean, collectively, all of Seller's receipts of monies for the sale of its goods and services that
monies shall be paid and delivered to Seller by Seller's customers and/or other vendees after the Effective Date of this
Agreement; which payments or deliveries of monies can be made in the form of cash, check, credit, charge, or debit card, ACH
or other electronic transfer or any other form of monetary payment and/or pecuniary benefit received by Seller.
d. “Daily Receipts” shall mean the amount of Future Receipts received by Seller on a daily basis.
e. “Purchased Amount” shall mean the total amount of the Specified Percentage of the Future Receipts that Seller shall
be under obligation to deliver and pay over to ECG pursuant to this Agreement. The parties agree that the Purchased
Amount shall be $7,495.00
“Purchase Price” shall mean the total amount that ECG agrees to pay for the Purchased Amount. Note that the
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amount that Seller will actually receive from ECG pursuant to this Agreement will be less than the Purchase Price by the
total sum of the Applicable Fees, Prior Balance and the Origination Fee, if any, as set forth in subparagraphs i, j. and k. below.
The parties agree that the Purchase Price shall be $5,000.00
g. InitialDailyinstallment” shall mean the fixed amount that Seller and ECG agree to be a good faith approximation of
the Specified Percentage of Seller's Daily Future Receipts. Seller and ECG further agree that, based upon the
information provided by Seller to ECG concerning Seller's most recent accounts receivables, including representations
by the Seller to ECG regarding the Seller's estimated Future Receipts, and subject to Seller's right of adjustment/
reconciliation set forth in this Agreement, as of the Effective Date the Initial Daily Installment shall be ¢ 107.08
h. “Workday” shall mean Monday through Friday except on days when banking institutions are closed for the holidays
and do not process ACH payments.
i “Applicable Fees” shall mean, collectively, all initial costs and fees that Seller agrees to pay to ECG as consideration
for agreeing to enter into this Agreement and that are described in Section 17 of this Agreement. The total sum of the
Applicable Fees will be deducted from the Purchase Price prior to delivering it to Seller pursuant to Seller's authorization set
forth in Rider 1 to this Agreement, provided nevertheless that such deduction shall not be deemed to reduce the agreed upon
Purchase Price.
j. “Prior Balance” shall mean the sum of all amounts that Seller may owe to ECG and/or third party(s) as of the
Effective Date of this Agreement. The Prior Balance, if any, is described in Section 18 of this Agreement and will be deducted
from the Purchase Price prior to delivering it to Seller pursuant to Seller's authorization set forth in Rider 2 to this Agreement,
provided nevertheless that such deduction shall not be deemed to reduce the agreed upon Purchase Price.
k. “Origination Fee” shall mean the fee that Seller and a Broker have agreed to in conjunction with brokering this
Agreement, which amount Seller authorizes ECG to withhold from the Purchase Price and pay to said Broker. The
Origination Fee, if any, is described in Section 19 of this Agreement and will be deducted from the Purchase Price prior to
delivering it to Seller pursuant to Seller's authorization set forth in Rider 3 to this Agreement, provided nevertheless that such
deduction shall not be deemed to reduce the agreed upon Purchase Price.
L In the event “Seller” is comprised of more than one entity, then:
i. The term “Seller” shall mean, individually and collectively, all such entities; and
ii. Each Seller is an “Affiliate” of all other Seller(s). The term “Affiliate” shall mean an entity or an individual
that (1) controls, (2) is under the “Control”, or (3) is under common Control with the entity or individual in question. The
term “Control” shall mean direct or indirect ownership of more than 50% of the outstanding voting stock of a corporation or
other majority equity interest if not a corporation and the possession of power to direct or cause the direction of the
management and policy of such corporation or other entity, whether through ownership of voting securities, by stature, or by
contract; and
iii. The representations, warranties, covenants, obligations and liabilities of each Seller shall be joint and
several under this Agreement; and
iv. The liability of each Seller under this Agreement shall be direct and immediate and shall not be conditional
or contingent upon the pursuance of any remedies against any other person or entity; and
v. The terms “Specified Percentage”, “Future Receipts”, “Daily Receipts”, “Initial Daily Installment” shall mean
the Specified Percentage, the Future Receipts and the Daily Receipts of each Seller individually; and
vi. ECG may pursue its rights and remedies under this Agreement against any one or any number of
entities that constitute Seller without obligation to assert, prosecute or exhaust any remedy or claim against any other
Seller or any Guarantor.
m. In the event “Guarantor” is comprised of more than one individual, then:
i. The term “Guarantor” shall mean, individually and collectively, all such individuals; and
ii. Each Guarantor is an Affiliate of all other Guarantor(s); and
iii. The representations, warranties, covenants, obligations and liabilities of each Guarantor shall be joint and
several under this Agreement and the Guaranty; and
iv. The liability of each Guarantor under this Agreement and the Guaranty shall be direct and immediate and
shall not be conditional or contingent upon the pursuance of any remedies against any other person or entity; and
v. ECG may pursue its rights and remedies under this Agreement and /or Guaranty against any one or
any number of individuals that constitute Guarantor without obligation to assert, prosecute or exhaust any remedy or claim
against any other Guarantor or any Seller.
2. The Term. This Agreement for the purchase and sale of Future Receipts does not have a fixed duration or term, which is
potentially infinite. Subject to the provisions of Sections 10-13 hereof, the term of this Agreement shall
commence on the Effective Date and expire on the date (the ‘Expiration Date”) when the Purchased Amount and
all other sums due to ECG pursuant to this Agreement are received by ECG in full.
3. Sale of Purchased Future Receipts. Seller hereby sells, assigns, transfers and conveys (hereinafter, the “Sale”) unto ECG all
bs
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of Seller's right, title and interest in to the Specified Percentage of the Future Receipts until the Purchased Amount shall have
been delivered by Seller to ECG (hereinafter, the portion of the Future Receipts sold by Seller to ECG pursuant to this
Agreement, the “Purchased Future Receipts”); to have and hold the same unto ECG, its successors and assigns, forever.
This Sale of the Purchased Future Receipts is made without express or implied warranty to ECG of collectability of the
Purchased Future Receipts by ECG and without recourse against Seller and/or Guarantor(s), except as specifically set forth in
this Agreement. By virtue of this Agreement, Seller transfers to ECG full and complete ownership of the Purchased Future
Receipts and Seller retains no legal or equitable interest therein.
4, Payment of Purchase Price. In consideration of the sale by Seller to ECG of the Purchased Future Receipts pursuant to
this Agreement, ECG agrees to pay to Seller the Purchase Price; the amount of the Purchase Price (reduced by the
Applicable Fees, Prior Balance, and Origination Fee, if any) shall be delivered to Seller after execution of this Agreement.
5. Use of Purchase Price. Seller hereby acknowledges that it fully understands that: (i) ECG's ability to collect the
Purchased Amount (or any portion thereof) is contingent upon Seller's continued operation of its business and successful
generation of the Future Receipts until the Purchased Amount is delivered to ECG in full; and (ii) that in the event of
decreased efficiency or total failure of Seller's business ECG's receipt of the full or any portion of the Purchased Amount
may be delayed indefinitely. Based upon the forgoing, Seller agrees to use the Purchase Price exclusively for the benefit
and advancement of Seller's business operations and for no other purpose.
6.InitialDaily Installments of Purchased Amount. The Purchased Amount shall be deliveredby Seller to ECG dailyin
the amount of the Initial Daily Installment on each and every Workday commencing on the Effective Date and ending on
the Expiration Date.
7. Approved Bank Account and Credit Card Processor. During the term of this Agreement, Seller shall: (i) deposit all Future
Receipts into one (and only one) bank account which bank account shall be acceptable and preapproved by ECG (the
“ ‘Approved Bank Account”), (ii) use one (and only one) credit card processor which processor shall be acceptable and
Approved bank Account ),
preapproved by ECG (the “Approved Processor”) and (iii) deposit all credit card receipts into the Approved Bank Account. In
the event the Approved Bank Account or Approved Processor shall become unavailable or shall cease providing services to
Seller during the term of this Agreement, prior to the first date of such unavailability or cessation of services, Seller shall
arrange for another Approved Bank Account or Approved Processor, as the case may be.
8. Authorization to Debit Approved Bank Account. Seller hereby authorizes ECG to initiate electronic checks or ACH
debits from the Approved Bank Account (which as of the Effective Date of this Agreement shall be the account listed on
Appendix A hereto) in the amount of the Initial Daily Installment on each Workday commencing on the Effective Date until
ECG receives the full Purchased Amount. Seller shall provide ECG with all access code(s) for the Approved Bank Account.
9. Fees Associated with Debiting Approved Bank Account. It shall be Seller's exclusive responsibility to pay to its banking
institution and/or ECG's banking institution directly (or to compensate ECG, in case it is charged) all fees, charges and
expenses incurred by either Seller or ECG due to rejected electronic checks or ACH debit attempts, overdrafts or
rejections by Seller’s banking institution of the transactions contemplated by this Agreement, including without
limitation a $35.00 charge per bounced or rejected ACH debit.
10. Seller’s Right for Reconciliation. Seller and ECG each acknowledges and agrees that:
a. If at any time during the term of this Agreement Seller will experience unforeseen decrease or increase in its Daily
Receipts, Seller shall have the right, at its sole and absolute discretion, but subject to the provisions of Section 11 below, to
request retroactive reconciliation of the Initial Daily Installments for one (1) full calendar month immediately preceding the
day when such request for reconciliation is received by ECG (each such calendar month, a “Reconciliation Month”).
b. Such reconciliation (the “Reconciliation”) of the Seller's Initial Daily Installment for a Reconciliation Month shall be
performed by ECG within five (5) Workdays following its receipt of the Seller’s request for Reconciliation by either crediting or
debiting the difference back to, or from, the Approved Bank Account so that the total amount debited by ECG from the
Approved Bank Account during the Reconciliation Month at issue is equal to the Specific Percentage of the Future Receipts
that Seller collected during the Reconciliation Month at issue.
c. One or more Reconciliation proced ures performed by ECG may red uce or increase the effective Initial
Daily Installment amount during the Reconciliation Month in comparison to the one set forth in Section 1 of this Agreement,
and, as the result of such reduction, the term of this Agreement during which ECG will be debiting the Approved Bank
Account may get shortened or extended indefinitely.
11. Request for Reconciliation Procedure.
a. It shall be Seller's sole responsibility and the right hereunder to initiate Reconciliation of Seller's actual Initial Daily
Installments during any Reconciliation Month by sending a request for Reconciliation to ECG.
b. Any such request for Reconciliation of the Seller’s Initial Daily Installments for a specific Reconciliation Month shall
be in writing, shall include a copy of Seller’s bank statement and credit card processing statements for the Reconciliation
Month at issue, and shall be received by ECG via email to uw@emmycapitalgroup.cor with the subject line “REQUEST FOR
RECONCILIATION,” within five (5) Workdays after the last day of the Reconciliation Month at issue (time being of the essence
as to the last day of the period during which such demand for Reconciliation shall be received by ECG).
c. ECG's receipt of Seller's request for Reconciliation after the expiration of the five (5) Workday period following the
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last day of the Reconciliation Month for which such Reconciliation is requested nullifies and makes obsolete Seller’s request for
Reconciliation for that specific Reconciliation Month.
d. Commencing thirty (30) days after the Effective Date of this Agreement, Seller shall have the right to request
Reconciliation as many times during the term of this Agreement as it deems proper, and ECG shall comply with each such
request, provided that:
i. Each such request is made in accordance with the terms of this Section 11; and
ii. If a request for Reconciliation is made after the expiration of the term of this Agreement and, as the result
of such Reconciliation, the total amount actually debitedby ECG from the Approved Bank Account will become less than the
Purchased Amount, then and in such event the term of this Agreement shall automatically be extended until the time when the total
amount actually debited from Approved Bank Account pursuant to this Agreement shall become equal to the Purchased Amount.
e. Nothing set forth in Sections 10 or 11 of this Agreement shall be deemed to: (i) provide Seller with the right to
interfere with ECG's right and ability to debit the Approved Bank Account while the request for Reconciliation of Seller’s
receipts is pending or until the Purchased Amount is collected by ECG in full, or (ii) modify the amount of the Initial Daily
Installment for any calendar month during the term of this Agreement other than during the Reconciliation Month(s) as the
result of the Reconciliation.
12.Adjustment
of the InitialDailynstallment. Seller and ECG each acknowledge and agree that:
a. If at any time during the term of this Agreement Seller experiences a steady decrease in its Daily Receipts, Seller
shall have the right, at its sole and absolute discretion, but subject to the provisions of Section 13 below, to request
modification (“Adjustment”) of the amount of the Initial Daily Installment that Seller is obligated to deliver daily to ECG in
accordance with the provisions of Section 6 above. Such Adjustment shall become effective as of the date it is granted and the new
adjusted amount of the Initial Daily Installment (the “ Adjusted Daily Installment”) shall replace and supersede the amount of the
Initial Daily Installment set forth in Section 1 above.
b. The Adjustment of the Initial Daily Installment shall be performed by ECG within five (5) Workdays following its
receipt of the Seller’s request for Adjustment by modifying the amount of the Initial Daily Installment that shall be debited from
the Approved Bank Account until the Purchased Amount is paid in full. Notwithstanding anything to the contrary set forth in
Sections 12 and 13 hereof, no Adjustment shall take place until and unless Reconciliation for at least one (1) Reconciliation
Month takes place resulting in the reduction of the total amount debited from Seller’s Approved Bank Account during the
Reconciliation Month by at least fifteen percent (15%) in comparison to the amount that would have been debited during that month
without Reconciliation.
c. One or more Adjustments performed by ECG may substantially extend the term of this Agreement.
13. Request for Adjustment Procedure.
a. It shall be Seller’s sole responsibility and the right to initiate the Adjustment by sending a request for Adjustment to
ECG.
b. A request for Adjustment (an “Adjustment Request”) shall be in writing, and shall include copies of: (i) Seller’s last three (3)
consecutive bank statements of the Approved Bank Account and credit card processing statements immediately preceding the
date of ECG's receipt of the Adjustment Request, and (ii) Seller’s bank statements and credit card processing statements
previously provided by Seller to ECG based upon which statements the amount of the Initial Daily Installment set forth in
Section 1 above (or the then current Adjusted Daily Installment, as the case may be) was determined, and shall be
received by ECG by email at uw@emmycapitalgroup.com,
with the subject line “REQUEST FOR ADJUSTMENT,” within five (5)
Workdays after the date that is the later of (i) the last day of the latest bank statement enclosed with the Adjustment Request and (ii)
the last date of the latest credit card processing statement enclosed with the Adjustment Request (time being of the essence as to the
last day of the period during which an Adjustment Request shall be received by ECG).
c. ECG's receipt of a Seller’s Adjustment Request after the expiration of the above referenced five (5) Workday period
nullifies and makes obsolete such Adjustment Request.
. Seller shall have the right to request Adjustment of the Initial Daily Installment, or the Adjusted Daily Installment (as
the case may be), as many times during the term of this Agreement as it deems proper, and ECG shall comply in good faith with
such request, provided that:
i. Each such request for Adjustment is made in accordance with the terms of this Section 13; and
ii A request for Adjustment shall not be made after the Expiration Date.
e. Nothing set forth in Sections 12 or 13 of this Agreement shall be deemed to provide Seller with the right to (i)
interfere with ECG's right and ability to debit the Approved Bank Account while the request for Adjustment is pending or until
the Purchased Amount is collected by ECG in full or (ii) request Adjustment retroactively for the portion of the term of
this Agreement preceding the date of an Adjustment Request.
14. Seller’s ight to Accelerate Remittance of the Outstanding Portion of the Purchased Amount of Future Receipts
(“Outstanding PAFR”).
a. Notwithstanding anything to the contrary set forth in this Agreement, Seller shall have the right, at any time after
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receipt from ECG of the Purchase Price, and upon obtaining ECG's prior written consent, to accelerate delivery to ECG of the
then undelivered portion of the Purchased Amount of Future Receipts (such amount, the “Outstanding PAFR”). The delivery of the
Outstanding PAFR shall be governed by the following subparagraphs.
b. The Outstanding PAFR can only be delivered in full and not partially.
c. Seller shall request the right to accelerate the delivery of the Outstanding PAFR by notifying ECG to that effect;
provided that such notice shall be in writing (an email delivery shall be deemed acceptable) and shall contain the information on the
source(s) of the funds to be used for delivery of the Outstanding PAFR and on the approximate date of such delivery.
d. ECG shall respond to Seller’s request within three (3) Workdays from the date of its receipt by ECG.
e. In its response to Seller’s request, ECG shall indicate the exact amount of the Outstanding PAER as of the date of its
delivery by Seller.
f. As of the date agreed upon as between ECG and Seller, Seller shall deliver to ECG the full amount of the Outstanding
PAER (such date, the “Accelerated Delivery Date”).
g- Under no circumstances shall Seller suspend or modify, or cause to be suspended or modified, the delivery to ECG of the
Initial Daily Installments prior to the delivery of the Outstanding PAFR to ECG.
h. Upon delivery of the Outstanding PAFR to ECG in compliance with the provisions of this Section 14, Seller’s
obligations to ECG pursuant to this Agreement shall be deemed completed and fulfilled.
15. _Rights and Obligations of ECG Upon Receipt of the Outstanding PAFR Upon receipt of the full amount of the
Outstanding PAFR:
a. ECG shall notify the Approved Bank Account and request from it to stop transferring Initial Daily Installments to
ECG's bank account.
b. If ECG shall have received one or more Initial Daily Installment (or Adjusted Daily Installment, as the case may be)
after the Accelerated Delivery Date (due to the Approved Bank’s delay in processing ECG's request described in subparagraph
(a) above or for any other reason), ECG shall immediately do one of the two following things (but not both):
i. Return to Seller the total sum of the Initial Daily Installments (or the Adjusted Daily Installments, as the case
may be) received by ECG after the date of delivery of the Outstanding PAFR to ECG; or
ii. Apply the total sum of the Initial Daily Installments (or the Adjusted Daily Installments, as the case may be)
received by ECG after the Accelerated Delivery Date toward Seller’s outstanding financial obligations to ECG existing as of the
Accelerated Delivery Date for reasons unrelated to this Agreement (if any).
A. By way of example, if as of the Accelerated Delivery Date, Seller and ECG would be parties to a another future
receivables sale and purchase agreement in connection with a portion of Seller’s Future Receipts that is not subject to this
Agreement (such agreement, an “Unrelated Future Agreement”), then and in such event ECG may, in its sole and absolute discretion,
apply the sum of the Initial Daily Installments (or the Adjusted Daily Installments, as the case may be) received by ECG after the
Accelerated Delivery Date pursuant to this Agreement toward fulfilling Seller’s obligations to ECG pursuant to the Unrelated
Future Agreement.
c. Seller acknowledges and agrees that ECG shall have the right to apply the total sum of the Initial Daily Installments (or
Adjusted Daily Installments, as the case may be) received by ECG after the Accelerated Delivery Date toward Seller’s
outstanding financial obligations to ECG existing as of the Accelerated Delivery Date for reasons unrelated to this Agreement (if any)
in exchange for, and as an adequate and sufficient consideration for, ECG granting Seller the right to accelerate the payment of the
Purchased Amount of Future Receipts.
16. Risk Sharing Acknowledgments and Arrangements.
a. Seller and ECG each hereby acknowledges and agrees that:
i. The Purchased Future Receipts represent a portion of Seller’s Future Receipts.
ii. This Agreement consummates the sale of the Purchased Future Receipts at a discount, not the borrowing of
funds by Seller from ECG does not charge Seller and will not collect from Seller any interest on the monies used by ECG for the
purchase of the Purchased Future Receipts. The period of time that it will take ECG to collect the Purchased Amount is not fixed, is
unknown to both parties as of the Effective Date of this Agreement and will depend on how well or not well Seller’s business will be
performing following the Effective Date. As an extreme example, in the event Seller’s business ceases to exist after ECG's purchase of
the Purchased Future Receipts as a result of a drying up of revenues for reasons outside Seller’s control, ECG may never collect all or
a substantial portion of the Purchased Future Receipts and will never recover the moneys it spent on such purchase.
iii. The amount of the Initial Daily Installment set forth in Section 1 of this Agreement is calculated based upon
the information concerning an average amount of Daily Receipts collected by Seller’s business immediately prior to the Effective Date
of this Agreement, as well as representations regarding the Seller's estimated Future Receipts, which information was
provided by the Seller to ECG.
iv. The amounts of Seller’s future Daily Receipts may increase or decrease over time.
v. If, based upon the Reconciliation and/or the Adjustment procedures described above, it will be determined
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that the actual daily amounts of the Specified Percentage of the Future Receipts get reduced in comparison to the amount of
the Initial Daily Installment as of the Effective Date set forth in Section 1 of this Agreement, and in comparison to the amount
that both Seller and ECG may have anticipated or projected because Seller's business has slowed down, or if the full
Purchased Amount is not remitted because Seller’s business went bankrupt or otherwise ceased operations in the ordinary
course of business (but not due to Seller's willful or negligent mishandling of its business or due to Seller's failure to
comply with its obligations under this Agreement), Seller would not be in breach of or in default under this Agreement.
b.ECG’s Risk Acknowledgments. ECG agrees to purchase the Purchased Future Receipts knowing the risks
that Seller's business may slow down or fail, and ECG assumes this risk based exclusively upon the information provided
to it by Seller and related to the business operations of Seller's business prior to the date hereof, and upon Seller's
representations, warranties and covenants contained in this Agreement that are designed to give ECG a reasonable and
fair opportunity to receive the benefit of its bargain. Furthermore, ECG hereby acknowled ges and agrees that Seller
shall be excused from performing its obligations under this Agreement in the event Seller's business ceases its operations
exclusively due to the following reasons (collectively, the “Valid Excuses”)
i. adverse business conditions that occurred for reasons outside Seller's control and not due to Seller's willful
or negligent mishandling of its business;
ii. loss of the premises where the business operates (but not due to Seller's breach of its obligations to its
landlord), provided however that Seller does not continue and/or resume business operations at another location;
iii. bankruptcy of Seller; and/or
iv. natural disasters or similar occurrences beyond Seller's control.
c. Application of Amounts Received by ECG reserves the right to apply amounts received by it under this
Agreement to any fees or other charges due to ECG from Seller prior to applying such amounts to reduce the
outstanding amount of the Purchased Amount. Any ACH payments and/or payments which clear after the Effective Date of this
Agreement shall be applied to the balance hereunder.
d. Not a Loan. Seller and ECG agree that the Purchase Price is paid to Seller in consideration for the acquisition of the
Purchased Future Receipts and that payment of the Purchase Price by ECG is not intended to be, nor shall it be construed as, a
loan from ECG to Seller that requires absolute and unconditional repayment on a maturity date. To the contrary, ECG's ability to
receive the Purchased Amount pursuant to this Agreement, and the date when the Purchased Amount is delivered to ECG in full (if
ever) are subject to and conditioned upon performance of Seller’s business. If, nevertheless, a court having jurisdiction over this
Agreement and the parties hereto shall have determined that ECG has charged or received interest hereunder in excess of the
highest rate allowed by law, then the rate of such interest received by ECG shall automatically be reduced to the maximum rate
permitted by applicable law and ECG shall promptly refund to Seller any interest received by ECG in excess of the maximum lawful
rate.
17. Applicable Fe s, Seller acknowledges that the Applicable Fees were agreed upon between Seller and ECG prior to Seller
entering into this Agreement, were subject to arm-length negotiation between ECG and Seller, and a detailed list of the
Applicable Fees is set forth in Rider 1 of this Agreement, which is attached hereto and made a part hereof.
18. Prior Balance. Seller represents and warrants that Rider 2, which is attached hereto and made a part hereof, contains true and
correct information as to the name(s) of Seller’s creditors and the amounts that Seller owes each of those creditors as of the Effective
Date (and these amounts being a portion of the Prior Balance), and that as of the date hereof there are no creditors of Seller
which may otherwise encumber the Purchased Future Receipts other than those listed in Rider 2. Seller indemnifies and holds
harmless ECG for any and all damages and losses (including without limitation legal fees and expenses) incurred by ECG as the
result of such representation being untrue, incorrect or incomplete.
19. Origination Fe To the extent that Seller has agreed to a broker fee with a third-party broker with respect to this
Agreement (which is not a party hereto), Seller hereby requests and agrees for ECG to withhold from the Purchase Price, and pay to the
third-party broker associated with this Agreement, the Origination Fee contained in Rider 3, which is attached hereto and made a
part hereof.
20. No Reduction of Purchase Price. Seller hereby: (i) agrees to pay the Applicable Fee, the Prior Balance and the Origination Fee (the
sum of those, hereinafter, the “Closing ) in full; (ii) hereby authorizes ECG to apply a portion of the Purchase Price due to Seller
pursuant to this Agreement toward satisfaction of Seller’s obligation to pay the Closing Costs by deducting the amount of the
Agreement Fees from the Purchase Price prior to delivering it to Seller; and (iii) agrees that deduction of the Closing Costs from the
Purchase Price shall not be deemed to be a reduction of the Purchase Price.
REPRESENTATIONS, WARRANTIES AND COVENANTS
21. Sellerrepresents warrants and covenants that as of this date and during the term of this Agreement:
Condition nci: nformation. Seller's bank and financial statements, copies of which have been
furnished to ECG, and future etztements which may be furnished hereafter pursuant to this Agreement or upon ECG's
request, fairly represent the financial condition of Seller as of the dates such statements were issued, and prior to
execution of the Agreement there has been no material adverse changes, financial or otherwise, in such condition,
operation or ownership of Seller. Seller has a continuing, affirmative obligation to advise ECG of any material adverse change
in its financial condition,
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operation or ownership, and/or online banking log-in credentials. ECG may request Seller's bank statements at any time during the
term of this Agreement and Seller shall provide them to ECG within five (5) Workdays. Seller's failure to do so, and/or cutting
off ECG's online access to the Approved Bank Account, is a material breach of this Agreement.
b. Governmental Approvals. Seller is in compliance and, during the term of this Agreement, shall be in compliance 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.
c. Good Standing. Seller is a corporation/limited liability company/limited partnership/other type of entity that is in good
standing and duly incorporated or otherwise organized and validly existing under the laws of its jurisdiction of incorporation
or organization, and has full power and authority necessary to carry its business as it is now being conducted.
d. Authorization. Seller has all requisite power to execute, deliver and perform this Agreement and consummate the
transactions contemplated hereunder; entering into this Agreement will not result in breach or violation of, or default under, any
agreement or instrument by which Seller is bound or any statute, rule, regulation, order or other law to which Seller is subject, nor
require the obtaining of any consent, approval, permit or license from any governmental authority having jurisdiction over
Seller. All organizational and other proceedings required to be taken by Seller to authorize the execution, delivery and performance
of this Agreement have been taken. The person signing this Agreement on behalf of Seller has full power and authority to bind Seller to
perform its obligations under this Agreement.
e. Accounting Records and Tax Returns. Seller will treat receipt of the Purchase Price and payment of the Purchased Amount
in a manner evidencing sale of its future receipts in its accounting records and tax returns and further agrees that ECG is entitled to
audit Seller’s accounting records upon reasonable notice in order to verify compliance. Seller hereby waives any rights of
privacy, confidentiality or taxpayer privilege in any litigation or arbitration arising out of this Agreement in which Seller asserts
that this transaction is anything other than a sale of future receipts.
f. Taxes; Workers Compensation Insurance. Seller has paid and will promptly pay, when due, all taxes, including without
limitation, income, employment, sales and use taxes, imposed upon Seller’s business by law, and will maintain workers compensation
insurance required by applicable governmental authorities.
g- Business Insurance. Seller maintains and will maintain general liability and business-interruption insurance naming
ECG as loss payee and additional insured in the amounts and against risks as are satisfactory to ECG and shall provide ECG proof of
such insurance upon request.
h. Electronic Check Processing Agreement. Seller shall not change its Approved Processor, add terminals, change its
Approved Bank Account(s) or take any other action that could have any adverse effect upon Seller’s obligations or impede
ECG's rights under this Agreement, without ECG's prior written consent.
i. No Diversion of FutureReceipts. Seller shall not allow any event to occur that would cause a diversion of any portion of
Seller's Future Receipts from the Approved Bank Account or Approved Processor without ECG's written permission.
j. Change of Name or Location. Seller, any successor-in-interest of Seller, and Guarantor shall not conduct Seller’s
businesses under any name other than as disclosed to the Approved Processor and ECG, shall not change and/or transfer
ownership in/of the Seller and will not change any of its places of business without first obtaining ECG's written consent.
k. Prohibited Business Transactions, Seller shall not: (i) transfer or sell all or substantially all of its assets (including without
limitation the Collateral (as such term is defined in Section 22) or any portion thereof) without first obtaining ECG's consent; or
(ii) make or send notice of its intended bulk sale or transfer.
1. No Closing of Business. Seller will not sell, dispose, transfer or otherwise convey all or substantially all of its
business or assets without first: (i) obtaining the express written consent of ECG, and (ii) providing ECG with a written agreement of a
purchaser or transferee of Seller’s business or assets to assume all of Seller’s obligations under this Agreement pursuant to
documentation satisfactory to ECG. Seller represents that it has no current plans to close its business either temporarily (for
renovations, repairs or any other purpose), or permanently. Seller agrees that until ECG shall have received the Purchased
Amount in full, Seller will not voluntarily close its business on a permanent or temporarily basis for renovations, repairs, or any
other purposes. Notwithstanding the foregoing, Seller shall have the right to close its business temporarily if such closing is necessitated
by a requirement to conduct renovations or repairs imposed upon Seller’s business by legal authorities having jurisdiction over
Seller’s business (such as from a health department or fire department), or if such closing is necessitated by circumstances outside
Seller’s reasonable control. Prior to any such temporary closure of its business, Seller shall provide ECG ten (10) business days advance
notice.
m. No Pending Bankruptcy. As of the date of Seller’s execution of this Agreement, Seller is not insolvent, has not filed, and
does not contemplate filing, any petition for bankruptcy protection under Title 11 of the United States Code and there has been no
involuntary bankruptcy petition brought or pending against Seller. Seller represents that it has not consulted with a bankruptcy attorney
on the issue of filing bankruptcy or some other insolvency proceeding within six months immediately preceding the date of this
Agreement.
n. Estoppel Certificate. Seller will at any time, and from time to time, upon at least one (1) day’s prior notice from ECG to
Seller, execute, acknowledge and deliver to ECG and/or to any other person or entity specified by ECG, a statement certifying that this
Agreement is unmodified and in full force and effect (or, if there have been modifications, that the same is in full force and effect as
modified and stating the modification(s) and stating the date(s) on which the Purchased Amount or any portion thereof has been
repaid.
o. Unencumbered Future Receipts. Seller has and will continue to have good, complete and marketable title to all Future Receipts,
free and clear of any and all liabilities, liens, claims, changes, restrictions, conditions, options, rights,
Preview
INDEX NO. E2024006695 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/19/2024 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3832125 Book Page CIVIL Return To: No. Pages: 21 STEVEN ZAKHARYAYEV 10 W37th Street, RM 602 Instrument: EXHIBIT(S) New York, NY 10018 Control #: 202404190748 Index #: E2024006695 Date: 04/19/2024 EMMY CAPITAL GROUP LLC Time: 11:32:47 AM J Renee Enterprises LLC Blackmon, Jeannetta 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 MM FLEE?" HOW IR Th 74 WV ed EC MYOu NM ¥. ©) EY 0 Koos 04 Y:4 INDE&& NOE 2624926095695 < NYSGa2 fF avaltue #2398, RECEIVED NYSCEF: 04/19/2024 Manhattan, NY, 10018 Tel: (347) 986-0844 Uw@emmycapitalgroup.com EMMY CAPITAL GROUP FUTURE RECEIVABLES SALE AND PURCHASE AGREEMENT This agreement(this“Agreement”), dated 03/12/2024 , between EMMY CAPITAL GROUP ("ECG") and the seller(s) listed herein (collectively, the "Seller”) (all capitalized terms shall have the meanings ascribed to them below): Business Legal Name: J Renee Enterprises LLC D/B/A: J Renee Enterprises LLC Form of Business Entity: corporation EIN #: 3 Physical Address: 1925 wright Ra indian Trail, NC 28079 Mailing Address: 1925 Wright Rd Indian Trail, NC 28079 PURCHASE PRICE: PURCHASED AMOUNT: SPECIFIED PERCENTAGE: INITIAL Daily [NSTALLMENT: $5,000.00 $7,495.00 04% $ 107.08 DocuSigned by: FOR THE SELLER #1 FOR THE SELLER#2 Jranurtta Blackmou, By: 217 CCC3AOF, By: Name: Jeannetta Blackmon Name: Title: Owner Title: owner Email: jeannetta@jreneeinc.com Email: Business Phone: (980) 837-2742 Business Phone: “Accurate contact information is required to provide the Seller with important information regarding the Agreement. Concurrently with the execution of this Agreement by Seller, and as condition to the effectiveness hereof, Seller has caused the Personal Guarantee of Performance in the form attached hereto as “Exhibit A” (the “Guaranty”) to be signed and delivered to ECG by the following Owner(s) /Guarantor(s) of Seller. OWNER/GUARANTOR #1 DocuSigned by: OWNER/GUARANTOR #2 > By: By: Name: Jeannetta Blackmon Name: SSN: Phone: Address: 10108 BARRANDS LN CHARLOTTE, NC 28278 Address: Furthermore, in the event the Seller and/or Guarantor are comprised of more than one entity and/or individuals, then ALL such entities and/or individuals, respectively, shall sign the Addendum to this Agreement in the form attached hereto as Exhibit B (the “Addendum”). WHEREAS, Seller is desirous to sell to ECG, and ECG is desirous to purchase from Seller a Specified Percentage of the Seller's Future Receipts, but only on the terms and conditions set forth in this Agreement. NOW, THEREFORE, for good and valuable consideration, the mutual receipts and sufficiency of which is hereby acknowledged by both parties, ECG and Seller hereby agree to the foregoing and as follows: 1. Basic Terms and Definitions. a. “Effective Date” shall mean the later of: (i) the date set forth in the preamble to this Agreement, and (ii) the date when ECG paid the Purchase Price to Seller. b. “Specified Percentage” shall mean FIFTEEN PERCENT (15%) of each and every sum from sale made by Seller of Future Receipts. c. “Future Receipts” shall mean, collectively, all of Seller's receipts of monies for the sale of its goods and services that monies shall be paid and delivered to Seller by Seller's customers and/or other vendees after the Effective Date of this Agreement; which payments or deliveries of monies can be made in the form of cash, check, credit, charge, or debit card, ACH or other electronic transfer or any other form of monetary payment and/or pecuniary benefit received by Seller. d. “Daily Receipts” shall mean the amount of Future Receipts received by Seller on a daily basis. e. “Purchased Amount” shall mean the total amount of the Specified Percentage of the Future Receipts that Seller shall be under obligation to deliver and pay over to ECG pursuant to this Agreement. The parties agree that the Purchased Amount shall be $7,495.00 “Purchase Price” shall mean the total amount that ECG agrees to pay for the Purchased Amount. Note that the Page 1 of 19 INDi€xN8 E 2820106695 695 NYSCEF DOC. Ni 3 RECEIVED NYSCEF: 04/19/2024 amount that Seller will actually receive from ECG pursuant to this Agreement will be less than the Purchase Price by the total sum of the Applicable Fees, Prior Balance and the Origination Fee, if any, as set forth in subparagraphs i, j. and k. below. The parties agree that the Purchase Price shall be $5,000.00 g. InitialDailyinstallment” shall mean the fixed amount that Seller and ECG agree to be a good faith approximation of the Specified Percentage of Seller's Daily Future Receipts. Seller and ECG further agree that, based upon the information provided by Seller to ECG concerning Seller's most recent accounts receivables, including representations by the Seller to ECG regarding the Seller's estimated Future Receipts, and subject to Seller's right of adjustment/ reconciliation set forth in this Agreement, as of the Effective Date the Initial Daily Installment shall be ¢ 107.08 h. “Workday” shall mean Monday through Friday except on days when banking institutions are closed for the holidays and do not process ACH payments. i “Applicable Fees” shall mean, collectively, all initial costs and fees that Seller agrees to pay to ECG as consideration for agreeing to enter into this Agreement and that are described in Section 17 of this Agreement. The total sum of the Applicable Fees will be deducted from the Purchase Price prior to delivering it to Seller pursuant to Seller's authorization set forth in Rider 1 to this Agreement, provided nevertheless that such deduction shall not be deemed to reduce the agreed upon Purchase Price. j. “Prior Balance” shall mean the sum of all amounts that Seller may owe to ECG and/or third party(s) as of the Effective Date of this Agreement. The Prior Balance, if any, is described in Section 18 of this Agreement and will be deducted from the Purchase Price prior to delivering it to Seller pursuant to Seller's authorization set forth in Rider 2 to this Agreement, provided nevertheless that such deduction shall not be deemed to reduce the agreed upon Purchase Price. k. “Origination Fee” shall mean the fee that Seller and a Broker have agreed to in conjunction with brokering this Agreement, which amount Seller authorizes ECG to withhold from the Purchase Price and pay to said Broker. The Origination Fee, if any, is described in Section 19 of this Agreement and will be deducted from the Purchase Price prior to delivering it to Seller pursuant to Seller's authorization set forth in Rider 3 to this Agreement, provided nevertheless that such deduction shall not be deemed to reduce the agreed upon Purchase Price. L In the event “Seller” is comprised of more than one entity, then: i. The term “Seller” shall mean, individually and collectively, all such entities; and ii. Each Seller is an “Affiliate” of all other Seller(s). The term “Affiliate” shall mean an entity or an individual that (1) controls, (2) is under the “Control”, or (3) is under common Control with the entity or individual in question. The term “Control” shall mean direct or indirect ownership of more than 50% of the outstanding voting stock of a corporation or other majority equity interest if not a corporation and the possession of power to direct or cause the direction of the management and policy of such corporation or other entity, whether through ownership of voting securities, by stature, or by contract; and iii. The representations, warranties, covenants, obligations and liabilities of each Seller shall be joint and several under this Agreement; and iv. The liability of each Seller under this Agreement shall be direct and immediate and shall not be conditional or contingent upon the pursuance of any remedies against any other person or entity; and v. The terms “Specified Percentage”, “Future Receipts”, “Daily Receipts”, “Initial Daily Installment” shall mean the Specified Percentage, the Future Receipts and the Daily Receipts of each Seller individually; and vi. ECG may pursue its rights and remedies under this Agreement against any one or any number of entities that constitute Seller without obligation to assert, prosecute or exhaust any remedy or claim against any other Seller or any Guarantor. m. In the event “Guarantor” is comprised of more than one individual, then: i. The term “Guarantor” shall mean, individually and collectively, all such individuals; and ii. Each Guarantor is an Affiliate of all other Guarantor(s); and iii. The representations, warranties, covenants, obligations and liabilities of each Guarantor shall be joint and several under this Agreement and the Guaranty; and iv. The liability of each Guarantor under this Agreement and the Guaranty shall be direct and immediate and shall not be conditional or contingent upon the pursuance of any remedies against any other person or entity; and v. ECG may pursue its rights and remedies under this Agreement and /or Guaranty against any one or any number of individuals that constitute Guarantor without obligation to assert, prosecute or exhaust any remedy or claim against any other Guarantor or any Seller. 2. The Term. This Agreement for the purchase and sale of Future Receipts does not have a fixed duration or term, which is potentially infinite. Subject to the provisions of Sections 10-13 hereof, the term of this Agreement shall commence on the Effective Date and expire on the date (the ‘Expiration Date”) when the Purchased Amount and all other sums due to ECG pursuant to this Agreement are received by ECG in full. 3. Sale of Purchased Future Receipts. Seller hereby sells, assigns, transfers and conveys (hereinafter, the “Sale”) unto ECG all bs Page 2 of 19 » Guarantor #1 Initials: | \f ] | Guarantor #2 Initials: [ ] INDi€xN8 E 2820106695 695 NYSCEF DOC. Ni 3 RECEIVED NYSCEF: 04/19/2024 of Seller's right, title and interest in to the Specified Percentage of the Future Receipts until the Purchased Amount shall have been delivered by Seller to ECG (hereinafter, the portion of the Future Receipts sold by Seller to ECG pursuant to this Agreement, the “Purchased Future Receipts”); to have and hold the same unto ECG, its successors and assigns, forever. This Sale of the Purchased Future Receipts is made without express or implied warranty to ECG of collectability of the Purchased Future Receipts by ECG and without recourse against Seller and/or Guarantor(s), except as specifically set forth in this Agreement. By virtue of this Agreement, Seller transfers to ECG full and complete ownership of the Purchased Future Receipts and Seller retains no legal or equitable interest therein. 4, Payment of Purchase Price. In consideration of the sale by Seller to ECG of the Purchased Future Receipts pursuant to this Agreement, ECG agrees to pay to Seller the Purchase Price; the amount of the Purchase Price (reduced by the Applicable Fees, Prior Balance, and Origination Fee, if any) shall be delivered to Seller after execution of this Agreement. 5. Use of Purchase Price. Seller hereby acknowledges that it fully understands that: (i) ECG's ability to collect the Purchased Amount (or any portion thereof) is contingent upon Seller's continued operation of its business and successful generation of the Future Receipts until the Purchased Amount is delivered to ECG in full; and (ii) that in the event of decreased efficiency or total failure of Seller's business ECG's receipt of the full or any portion of the Purchased Amount may be delayed indefinitely. Based upon the forgoing, Seller agrees to use the Purchase Price exclusively for the benefit and advancement of Seller's business operations and for no other purpose. 6.InitialDaily Installments of Purchased Amount. The Purchased Amount shall be deliveredby Seller to ECG dailyin the amount of the Initial Daily Installment on each and every Workday commencing on the Effective Date and ending on the Expiration Date. 7. Approved Bank Account and Credit Card Processor. During the term of this Agreement, Seller shall: (i) deposit all Future Receipts into one (and only one) bank account which bank account shall be acceptable and preapproved by ECG (the “ ‘Approved Bank Account”), (ii) use one (and only one) credit card processor which processor shall be acceptable and Approved bank Account ), preapproved by ECG (the “Approved Processor”) and (iii) deposit all credit card receipts into the Approved Bank Account. In the event the Approved Bank Account or Approved Processor shall become unavailable or shall cease providing services to Seller during the term of this Agreement, prior to the first date of such unavailability or cessation of services, Seller shall arrange for another Approved Bank Account or Approved Processor, as the case may be. 8. Authorization to Debit Approved Bank Account. Seller hereby authorizes ECG to initiate electronic checks or ACH debits from the Approved Bank Account (which as of the Effective Date of this Agreement shall be the account listed on Appendix A hereto) in the amount of the Initial Daily Installment on each Workday commencing on the Effective Date until ECG receives the full Purchased Amount. Seller shall provide ECG with all access code(s) for the Approved Bank Account. 9. Fees Associated with Debiting Approved Bank Account. It shall be Seller's exclusive responsibility to pay to its banking institution and/or ECG's banking institution directly (or to compensate ECG, in case it is charged) all fees, charges and expenses incurred by either Seller or ECG due to rejected electronic checks or ACH debit attempts, overdrafts or rejections by Seller’s banking institution of the transactions contemplated by this Agreement, including without limitation a $35.00 charge per bounced or rejected ACH debit. 10. Seller’s Right for Reconciliation. Seller and ECG each acknowledges and agrees that: a. If at any time during the term of this Agreement Seller will experience unforeseen decrease or increase in its Daily Receipts, Seller shall have the right, at its sole and absolute discretion, but subject to the provisions of Section 11 below, to request retroactive reconciliation of the Initial Daily Installments for one (1) full calendar month immediately preceding the day when such request for reconciliation is received by ECG (each such calendar month, a “Reconciliation Month”). b. Such reconciliation (the “Reconciliation”) of the Seller's Initial Daily Installment for a Reconciliation Month shall be performed by ECG within five (5) Workdays following its receipt of the Seller’s request for Reconciliation by either crediting or debiting the difference back to, or from, the Approved Bank Account so that the total amount debited by ECG from the Approved Bank Account during the Reconciliation Month at issue is equal to the Specific Percentage of the Future Receipts that Seller collected during the Reconciliation Month at issue. c. One or more Reconciliation proced ures performed by ECG may red uce or increase the effective Initial Daily Installment amount during the Reconciliation Month in comparison to the one set forth in Section 1 of this Agreement, and, as the result of such reduction, the term of this Agreement during which ECG will be debiting the Approved Bank Account may get shortened or extended indefinitely. 11. Request for Reconciliation Procedure. a. It shall be Seller's sole responsibility and the right hereunder to initiate Reconciliation of Seller's actual Initial Daily Installments during any Reconciliation Month by sending a request for Reconciliation to ECG. b. Any such request for Reconciliation of the Seller’s Initial Daily Installments for a specific Reconciliation Month shall be in writing, shall include a copy of Seller’s bank statement and credit card processing statements for the Reconciliation Month at issue, and shall be received by ECG via email to uw@emmycapitalgroup.cor with the subject line “REQUEST FOR RECONCILIATION,” within five (5) Workdays after the last day of the Reconciliation Month at issue (time being of the essence as to the last day of the period during which such demand for Reconciliation shall be received by ECG). c. ECG's receipt of Seller's request for Reconciliation after the expiration of the five (5) Workday period following the Page 3 of 19 » Guarantor #1 Initials: pb ] Guarantor #2 Initials: [ ] INDi€xN8 E 2820106695 695 NYSCEF DOC. Ni 3 RECEIVED NYSCEF: 04/19/2024 last day of the Reconciliation Month for which such Reconciliation is requested nullifies and makes obsolete Seller’s request for Reconciliation for that specific Reconciliation Month. d. Commencing thirty (30) days after the Effective Date of this Agreement, Seller shall have the right to request Reconciliation as many times during the term of this Agreement as it deems proper, and ECG shall comply with each such request, provided that: i. Each such request is made in accordance with the terms of this Section 11; and ii. If a request for Reconciliation is made after the expiration of the term of this Agreement and, as the result of such Reconciliation, the total amount actually debitedby ECG from the Approved Bank Account will become less than the Purchased Amount, then and in such event the term of this Agreement shall automatically be extended until the time when the total amount actually debited from Approved Bank Account pursuant to this Agreement shall become equal to the Purchased Amount. e. Nothing set forth in Sections 10 or 11 of this Agreement shall be deemed to: (i) provide Seller with the right to interfere with ECG's right and ability to debit the Approved Bank Account while the request for Reconciliation of Seller’s receipts is pending or until the Purchased Amount is collected by ECG in full, or (ii) modify the amount of the Initial Daily Installment for any calendar month during the term of this Agreement other than during the Reconciliation Month(s) as the result of the Reconciliation. 12.Adjustment of the InitialDailynstallment. Seller and ECG each acknowledge and agree that: a. If at any time during the term of this Agreement Seller experiences a steady decrease in its Daily Receipts, Seller shall have the right, at its sole and absolute discretion, but subject to the provisions of Section 13 below, to request modification (“Adjustment”) of the amount of the Initial Daily Installment that Seller is obligated to deliver daily to ECG in accordance with the provisions of Section 6 above. Such Adjustment shall become effective as of the date it is granted and the new adjusted amount of the Initial Daily Installment (the “ Adjusted Daily Installment”) shall replace and supersede the amount of the Initial Daily Installment set forth in Section 1 above. b. The Adjustment of the Initial Daily Installment shall be performed by ECG within five (5) Workdays following its receipt of the Seller’s request for Adjustment by modifying the amount of the Initial Daily Installment that shall be debited from the Approved Bank Account until the Purchased Amount is paid in full. Notwithstanding anything to the contrary set forth in Sections 12 and 13 hereof, no Adjustment shall take place until and unless Reconciliation for at least one (1) Reconciliation Month takes place resulting in the reduction of the total amount debited from Seller’s Approved Bank Account during the Reconciliation Month by at least fifteen percent (15%) in comparison to the amount that would have been debited during that month without Reconciliation. c. One or more Adjustments performed by ECG may substantially extend the term of this Agreement. 13. Request for Adjustment Procedure. a. It shall be Seller’s sole responsibility and the right to initiate the Adjustment by sending a request for Adjustment to ECG. b. A request for Adjustment (an “Adjustment Request”) shall be in writing, and shall include copies of: (i) Seller’s last three (3) consecutive bank statements of the Approved Bank Account and credit card processing statements immediately preceding the date of ECG's receipt of the Adjustment Request, and (ii) Seller’s bank statements and credit card processing statements previously provided by Seller to ECG based upon which statements the amount of the Initial Daily Installment set forth in Section 1 above (or the then current Adjusted Daily Installment, as the case may be) was determined, and shall be received by ECG by email at uw@emmycapitalgroup.com, with the subject line “REQUEST FOR ADJUSTMENT,” within five (5) Workdays after the date that is the later of (i) the last day of the latest bank statement enclosed with the Adjustment Request and (ii) the last date of the latest credit card processing statement enclosed with the Adjustment Request (time being of the essence as to the last day of the period during which an Adjustment Request shall be received by ECG). c. ECG's receipt of a Seller’s Adjustment Request after the expiration of the above referenced five (5) Workday period nullifies and makes obsolete such Adjustment Request. . Seller shall have the right to request Adjustment of the Initial Daily Installment, or the Adjusted Daily Installment (as the case may be), as many times during the term of this Agreement as it deems proper, and ECG shall comply in good faith with such request, provided that: i. Each such request for Adjustment is made in accordance with the terms of this Section 13; and ii A request for Adjustment shall not be made after the Expiration Date. e. Nothing set forth in Sections 12 or 13 of this Agreement shall be deemed to provide Seller with the right to (i) interfere with ECG's right and ability to debit the Approved Bank Account while the request for Adjustment is pending or until the Purchased Amount is collected by ECG in full or (ii) request Adjustment retroactively for the portion of the term of this Agreement preceding the date of an Adjustment Request. 14. Seller’s ight to Accelerate Remittance of the Outstanding Portion of the Purchased Amount of Future Receipts (“Outstanding PAFR”). a. Notwithstanding anything to the contrary set forth in this Agreement, Seller shall have the right, at any time after Page4 of 19 » Guarantor ita, ] Guarantor #2 Initials: [ ] INDi€xN8 E 2820106695 695 AL1S/2024 10:43 AM) NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/19/2024 receipt from ECG of the Purchase Price, and upon obtaining ECG's prior written consent, to accelerate delivery to ECG of the then undelivered portion of the Purchased Amount of Future Receipts (such amount, the “Outstanding PAFR”). The delivery of the Outstanding PAFR shall be governed by the following subparagraphs. b. The Outstanding PAFR can only be delivered in full and not partially. c. Seller shall request the right to accelerate the delivery of the Outstanding PAFR by notifying ECG to that effect; provided that such notice shall be in writing (an email delivery shall be deemed acceptable) and shall contain the information on the source(s) of the funds to be used for delivery of the Outstanding PAFR and on the approximate date of such delivery. d. ECG shall respond to Seller’s request within three (3) Workdays from the date of its receipt by ECG. e. In its response to Seller’s request, ECG shall indicate the exact amount of the Outstanding PAER as of the date of its delivery by Seller. f. As of the date agreed upon as between ECG and Seller, Seller shall deliver to ECG the full amount of the Outstanding PAER (such date, the “Accelerated Delivery Date”). g- Under no circumstances shall Seller suspend or modify, or cause to be suspended or modified, the delivery to ECG of the Initial Daily Installments prior to the delivery of the Outstanding PAFR to ECG. h. Upon delivery of the Outstanding PAFR to ECG in compliance with the provisions of this Section 14, Seller’s obligations to ECG pursuant to this Agreement shall be deemed completed and fulfilled. 15. _Rights and Obligations of ECG Upon Receipt of the Outstanding PAFR Upon receipt of the full amount of the Outstanding PAFR: a. ECG shall notify the Approved Bank Account and request from it to stop transferring Initial Daily Installments to ECG's bank account. b. If ECG shall have received one or more Initial Daily Installment (or Adjusted Daily Installment, as the case may be) after the Accelerated Delivery Date (due to the Approved Bank’s delay in processing ECG's request described in subparagraph (a) above or for any other reason), ECG shall immediately do one of the two following things (but not both): i. Return to Seller the total sum of the Initial Daily Installments (or the Adjusted Daily Installments, as the case may be) received by ECG after the date of delivery of the Outstanding PAFR to ECG; or ii. Apply the total sum of the Initial Daily Installments (or the Adjusted Daily Installments, as the case may be) received by ECG after the Accelerated Delivery Date toward Seller’s outstanding financial obligations to ECG existing as of the Accelerated Delivery Date for reasons unrelated to this Agreement (if any). A. By way of example, if as of the Accelerated Delivery Date, Seller and ECG would be parties to a another future receivables sale and purchase agreement in connection with a portion of Seller’s Future Receipts that is not subject to this Agreement (such agreement, an “Unrelated Future Agreement”), then and in such event ECG may, in its sole and absolute discretion, apply the sum of the Initial Daily Installments (or the Adjusted Daily Installments, as the case may be) received by ECG after the Accelerated Delivery Date pursuant to this Agreement toward fulfilling Seller’s obligations to ECG pursuant to the Unrelated Future Agreement. c. Seller acknowledges and agrees that ECG shall have the right to apply the total sum of the Initial Daily Installments (or Adjusted Daily Installments, as the case may be) received by ECG after the Accelerated Delivery Date toward Seller’s outstanding financial obligations to ECG existing as of the Accelerated Delivery Date for reasons unrelated to this Agreement (if any) in exchange for, and as an adequate and sufficient consideration for, ECG granting Seller the right to accelerate the payment of the Purchased Amount of Future Receipts. 16. Risk Sharing Acknowledgments and Arrangements. a. Seller and ECG each hereby acknowledges and agrees that: i. The Purchased Future Receipts represent a portion of Seller’s Future Receipts. ii. This Agreement consummates the sale of the Purchased Future Receipts at a discount, not the borrowing of funds by Seller from ECG does not charge Seller and will not collect from Seller any interest on the monies used by ECG for the purchase of the Purchased Future Receipts. The period of time that it will take ECG to collect the Purchased Amount is not fixed, is unknown to both parties as of the Effective Date of this Agreement and will depend on how well or not well Seller’s business will be performing following the Effective Date. As an extreme example, in the event Seller’s business ceases to exist after ECG's purchase of the Purchased Future Receipts as a result of a drying up of revenues for reasons outside Seller’s control, ECG may never collect all or a substantial portion of the Purchased Future Receipts and will never recover the moneys it spent on such purchase. iii. The amount of the Initial Daily Installment set forth in Section 1 of this Agreement is calculated based upon the information concerning an average amount of Daily Receipts collected by Seller’s business immediately prior to the Effective Date of this Agreement, as well as representations regarding the Seller's estimated Future Receipts, which information was provided by the Seller to ECG. iv. The amounts of Seller’s future Daily Receipts may increase or decrease over time. v. If, based upon the Reconciliation and/or the Adjustment procedures described above, it will be determined Page 5 of 19 » Guarantors ita [9 ] Guarantor #2 Initials: [ ] INDi€xN8 E 2820106695 695 NYSCEF DOC. N 3 RECEIVED NYSCEF: 04/19/2024 that the actual daily amounts of the Specified Percentage of the Future Receipts get reduced in comparison to the amount of the Initial Daily Installment as of the Effective Date set forth in Section 1 of this Agreement, and in comparison to the amount that both Seller and ECG may have anticipated or projected because Seller's business has slowed down, or if the full Purchased Amount is not remitted because Seller’s business went bankrupt or otherwise ceased operations in the ordinary course of business (but not due to Seller's willful or negligent mishandling of its business or due to Seller's failure to comply with its obligations under this Agreement), Seller would not be in breach of or in default under this Agreement. b.ECG’s Risk Acknowledgments. ECG agrees to purchase the Purchased Future Receipts knowing the risks that Seller's business may slow down or fail, and ECG assumes this risk based exclusively upon the information provided to it by Seller and related to the business operations of Seller's business prior to the date hereof, and upon Seller's representations, warranties and covenants contained in this Agreement that are designed to give ECG a reasonable and fair opportunity to receive the benefit of its bargain. Furthermore, ECG hereby acknowled ges and agrees that Seller shall be excused from performing its obligations under this Agreement in the event Seller's business ceases its operations exclusively due to the following reasons (collectively, the “Valid Excuses”) i. adverse business conditions that occurred for reasons outside Seller's control and not due to Seller's willful or negligent mishandling of its business; ii. loss of the premises where the business operates (but not due to Seller's breach of its obligations to its landlord), provided however that Seller does not continue and/or resume business operations at another location; iii. bankruptcy of Seller; and/or iv. natural disasters or similar occurrences beyond Seller's control. c. Application of Amounts Received by ECG reserves the right to apply amounts received by it under this Agreement to any fees or other charges due to ECG from Seller prior to applying such amounts to reduce the outstanding amount of the Purchased Amount. Any ACH payments and/or payments which clear after the Effective Date of this Agreement shall be applied to the balance hereunder. d. Not a Loan. Seller and ECG agree that the Purchase Price is paid to Seller in consideration for the acquisition of the Purchased Future Receipts and that payment of the Purchase Price by ECG is not intended to be, nor shall it be construed as, a loan from ECG to Seller that requires absolute and unconditional repayment on a maturity date. To the contrary, ECG's ability to receive the Purchased Amount pursuant to this Agreement, and the date when the Purchased Amount is delivered to ECG in full (if ever) are subject to and conditioned upon performance of Seller’s business. If, nevertheless, a court having jurisdiction over this Agreement and the parties hereto shall have determined that ECG has charged or received interest hereunder in excess of the highest rate allowed by law, then the rate of such interest received by ECG shall automatically be reduced to the maximum rate permitted by applicable law and ECG shall promptly refund to Seller any interest received by ECG in excess of the maximum lawful rate. 17. Applicable Fe s, Seller acknowledges that the Applicable Fees were agreed upon between Seller and ECG prior to Seller entering into this Agreement, were subject to arm-length negotiation between ECG and Seller, and a detailed list of the Applicable Fees is set forth in Rider 1 of this Agreement, which is attached hereto and made a part hereof. 18. Prior Balance. Seller represents and warrants that Rider 2, which is attached hereto and made a part hereof, contains true and correct information as to the name(s) of Seller’s creditors and the amounts that Seller owes each of those creditors as of the Effective Date (and these amounts being a portion of the Prior Balance), and that as of the date hereof there are no creditors of Seller which may otherwise encumber the Purchased Future Receipts other than those listed in Rider 2. Seller indemnifies and holds harmless ECG for any and all damages and losses (including without limitation legal fees and expenses) incurred by ECG as the result of such representation being untrue, incorrect or incomplete. 19. Origination Fe To the extent that Seller has agreed to a broker fee with a third-party broker with respect to this Agreement (which is not a party hereto), Seller hereby requests and agrees for ECG to withhold from the Purchase Price, and pay to the third-party broker associated with this Agreement, the Origination Fee contained in Rider 3, which is attached hereto and made a part hereof. 20. No Reduction of Purchase Price. Seller hereby: (i) agrees to pay the Applicable Fee, the Prior Balance and the Origination Fee (the sum of those, hereinafter, the “Closing ) in full; (ii) hereby authorizes ECG to apply a portion of the Purchase Price due to Seller pursuant to this Agreement toward satisfaction of Seller’s obligation to pay the Closing Costs by deducting the amount of the Agreement Fees from the Purchase Price prior to delivering it to Seller; and (iii) agrees that deduction of the Closing Costs from the Purchase Price shall not be deemed to be a reduction of the Purchase Price. REPRESENTATIONS, WARRANTIES AND COVENANTS 21. Sellerrepresents warrants and covenants that as of this date and during the term of this Agreement: Condition nci: nformation. Seller's bank and financial statements, copies of which have been furnished to ECG, and future etztements which may be furnished hereafter pursuant to this Agreement or upon ECG's request, fairly represent the financial condition of Seller as of the dates such statements were issued, and prior to execution of the Agreement there has been no material adverse changes, financial or otherwise, in such condition, operation or ownership of Seller. Seller has a continuing, affirmative obligation to advise ECG of any material adverse change in its financial condition, Page 6 of 19 » Guarantor #1 Initials: \ ] Guarantor #2 Initials: [ ] INDi€xN8 E 2820106695 695 El NYSCE Oc. N 3 RECEIVED NYSCEF: 04/19/2024 operation or ownership, and/or online banking log-in credentials. ECG may request Seller's bank statements at any time during the term of this Agreement and Seller shall provide them to ECG within five (5) Workdays. Seller's failure to do so, and/or cutting off ECG's online access to the Approved Bank Account, is a material breach of this Agreement. b. Governmental Approvals. Seller is in compliance and, during the term of this Agreement, shall be in compliance 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. c. Good Standing. Seller is a corporation/limited liability company/limited partnership/other type of entity that is in good standing and duly incorporated or otherwise organized and validly existing under the laws of its jurisdiction of incorporation or organization, and has full power and authority necessary to carry its business as it is now being conducted. d. Authorization. Seller has all requisite power to execute, deliver and perform this Agreement and consummate the transactions contemplated hereunder; entering into this Agreement will not result in breach or violation of, or default under, any agreement or instrument by which Seller is bound or any statute, rule, regulation, order or other law to which Seller is subject, nor require the obtaining of any consent, approval, permit or license from any governmental authority having jurisdiction over Seller. All organizational and other proceedings required to be taken by Seller to authorize the execution, delivery and performance of this Agreement have been taken. The person signing this Agreement on behalf of Seller has full power and authority to bind Seller to perform its obligations under this Agreement. e. Accounting Records and Tax Returns. Seller will treat receipt of the Purchase Price and payment of the Purchased Amount in a manner evidencing sale of its future receipts in its accounting records and tax returns and further agrees that ECG is entitled to audit Seller’s accounting records upon reasonable notice in order to verify compliance. Seller hereby waives any rights of privacy, confidentiality or taxpayer privilege in any litigation or arbitration arising out of this Agreement in which Seller asserts that this transaction is anything other than a sale of future receipts. f. Taxes; Workers Compensation Insurance. Seller has paid and will promptly pay, when due, all taxes, including without limitation, income, employment, sales and use taxes, imposed upon Seller’s business by law, and will maintain workers compensation insurance required by applicable governmental authorities. g- Business Insurance. Seller maintains and will maintain general liability and business-interruption insurance naming ECG as loss payee and additional insured in the amounts and against risks as are satisfactory to ECG and shall provide ECG proof of such insurance upon request. h. Electronic Check Processing Agreement. Seller shall not change its Approved Processor, add terminals, change its Approved Bank Account(s) or take any other action that could have any adverse effect upon Seller’s obligations or impede ECG's rights under this Agreement, without ECG's prior written consent. i. No Diversion of FutureReceipts. Seller shall not allow any event to occur that would cause a diversion of any portion of Seller's Future Receipts from the Approved Bank Account or Approved Processor without ECG's written permission. j. Change of Name or Location. Seller, any successor-in-interest of Seller, and Guarantor shall not conduct Seller’s businesses under any name other than as disclosed to the Approved Processor and ECG, shall not change and/or transfer ownership in/of the Seller and will not change any of its places of business without first obtaining ECG's written consent. k. Prohibited Business Transactions, Seller shall not: (i) transfer or sell all or substantially all of its assets (including without limitation the Collateral (as such term is defined in Section 22) or any portion thereof) without first obtaining ECG's consent; or (ii) make or send notice of its intended bulk sale or transfer. 1. No Closing of Business. Seller will not sell, dispose, transfer or otherwise convey all or substantially all of its business or assets without first: (i) obtaining the express written consent of ECG, and (ii) providing ECG with a written agreement of a purchaser or transferee of Seller’s business or assets to assume all of Seller’s obligations under this Agreement pursuant to documentation satisfactory to ECG. Seller represents that it has no current plans to close its business either temporarily (for renovations, repairs or any other purpose), or permanently. Seller agrees that until ECG shall have received the Purchased Amount in full, Seller will not voluntarily close its business on a permanent or temporarily basis for renovations, repairs, or any other purposes. Notwithstanding the foregoing, Seller shall have the right to close its business temporarily if such closing is necessitated by a requirement to conduct renovations or repairs imposed upon Seller’s business by legal authorities having jurisdiction over Seller’s business (such as from a health department or fire department), or if such closing is necessitated by circumstances outside Seller’s reasonable control. Prior to any such temporary closure of its business, Seller shall provide ECG ten (10) business days advance notice. m. No Pending Bankruptcy. As of the date of Seller’s execution of this Agreement, Seller is not insolvent, has not filed, and does not contemplate filing, any petition for bankruptcy protection under Title 11 of the United States Code and there has been no involuntary bankruptcy petition brought or pending against Seller. Seller represents that it has not consulted with a bankruptcy attorney on the issue of filing bankruptcy or some other insolvency proceeding within six months immediately preceding the date of this Agreement. n. Estoppel Certificate. Seller will at any time, and from time to time, upon at least one (1) day’s prior notice from ECG to Seller, execute, acknowledge and deliver to ECG and/or to any other person or entity specified by ECG, a statement certifying that this Agreement is unmodified and in full force and effect (or, if there have been modifications, that the same is in full force and effect as modified and stating the modification(s) and stating the date(s) on which the Purchased Amount or any portion thereof has been repaid. o. Unencumbered Future Receipts. Seller has and will continue to have good, complete and marketable title to all Future Receipts, free and clear of any and all liabilities, liens, claims, changes, restrictions, conditions, options, rights,