Preview
FILED: NASSAU COUNTY CLERK 06/07/2024 11:56 AM INDEX NO. 609954/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/07/2024
EXHIBIT A
FILED: NASSAU COUNTY CLERK 06/07/2024 11:56 AM INDEX NO. 609954/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/07/2024
I-4V / I-I II\I I II- LJ
PURCHASE
REVENUE AGREEMENT
This Revenue Purchase Agreement and Security Agreement and Guaranty of Performance ("Agreement") dated 07/14/2023 between Byzfunder NY LLC DBA
Byzfunder located at 530 7th Ave Suite 505, NewYork, NY 10018 ("PURCHASER") the Merchant(s) listed below ("Merchant") and the Individual(s) listed below
(each a "Guarantor")
INFORMATION
MERCHANT
Merchant's Legal Name: Current Electric of WA,LLC.
D/B/A: Current Electric of WA
State of Incorporation / Organizatiorr WA Type of Entity: Limited Liability Company
Physical Address: 14111 74th Avenue Court East City: Puyallup State: WA Zip: 98373 Business Phone: 253-227-2383
Guarantor(s) Name: Michael Anthony Heard Cellphone Number Email Address: Heard102003@yahoo.com
Mailing Address: 14111 74th Avenue Court East City: Puyallup State: WA Zip: 98373
Purchase Price: $150.000.00 Purchased Percentage: 10.00% Purchased Amount: $211.500.00
Remittance Frequency: Weekly Initial Remittance: $6.609.38
Origination Fee: $4.500.00 Processing Fee: $495.00
(Deducted from Purchase Price) (Deducted from Purchase Price)
Net Amount Funded to Merchant: $145,005.00
In consideration of payment by PURCHASER to Merchant of the Purchase Price set forth above, Merchant hereby sells, assigns and transfers to PURCHASER (making PURCHASER the
absolute owner) the Puxhased Percentage of all of Mexhant's payments, receipts, settlements and funds paid to or received by or for the account of Merchant fmmtime to time on and after the
date hereof in payment or settlement of Merchant's existing and future accounts, payment intangibles, credit, debit and/or stored value card transactions, contract rights and other entitlements
customers' and/or other Receipts"
arising fmmor relating to the payment of monies fmmMerchant's payors or obligors (the "Future defined as all payments madeby cash, check, clearinghouse
settlement, electronic transfer or other form of monetary payment), for the payments to Membantas a result of Merchant's sale of goods and/or services until the Purchased Amount has been
delivered by or on behalf of Mexhant to PURCHASER.
Merchant is selling a portion of a future revenue stream to PURCHASER at a discount, and is not borrowing money from PURCHASER, therefore there is no interest rate or
payment schedule and no time period daring which the Purchased Amountmnst be collected by PURCHASER. The Initial Remittans is a good faith estimate of PURCHASER's
share of the future revenue stream. Merchant going bankrupt or going out of business, or experiencing a slowdown in business, or a delay in collecting its receivables does not
constitute a breach of this Agreement. PURCHASER is entering this Agreement knowing the risks that Merchant's business may not perform as expected or fail, and PURCHASER assumes
these risks based on Memhant's representations, warranties and covenants in this Agreement, which are designed to give PURCHASER a reasonable and fair opportunity to receive the benefit of
its bargain. PURCHASER acknowledges that it may never receive the Purchased Amount in the event that the Merchant does not generate sufficient revenue. Merchant and Guarantor(s) are only
guaranteeing their performance of the terms of this Revenue Pumbase Agreement, and are not guaranteeing the payment of the PumbasedAmount. The Initial Remittance shall be as described
above and is subject to adjustment as set forth in Section 1.3.
PURCHASER
will debit the Remittance each business day from only one depositing bank account, which account must be acceptable to, and pre-approved by, PURCHASER (the "Account")
into which Merchant and Merchant's customers shall remit the Receipts from cach transaction. Merchant hereby authorizes PURCHASER to ACHdebit the agreed Remittance from the Account
on the agreed upon Remittance Frequency; a daily basis means any business day that is not a United States banking holiday.
PURCHASER'S
payment of the Purchase Price shall be deemedthe acceptance and performance by PURCHASER
of this Agreement A list of all fees applicable under this Agreement is
contained in Appendix A.
THE"MERCHANT AGREEMENT TERMSANDCONDITIONS",ANDTHE"SECURITYAGREEMENT
ANDPERFORMANCE
GUARANTY",AREALL HEREBY
S
IN ANDMADE
INCORPORATED APARTOFTHISAGREEMENT.
FORTHEMERCHANT
Michael Anthony Heard, Member
f of C “ rp f
) f)
(#1) By:
(Print Nameand mtle) (Signature)
Diane Vern McNeil, Member
(Print Nameand tle) (Signature)
Michael Anthony Heard, Member
BYGUARANTOR(S)
(#1) By
(Print Nameand tle) (Signature)
Diane VemMcNeil, Member
BYGUARANTOR(S)
(#2) By: N
(Print Nameand tle) (Signature)
Y 4. J !N!.2 M Merchant Guarantor #1 Guarantor #2
1
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NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/07/2024
MERCHANT
AGREEMENT
TERMSANDCONDITIONS
1 IN PROGRAM
TERMSOFENROLLMENT
1.1 Merchant Deposit Agreement and Processor. Merchant shall (A) if applicable, execute an agreement acceptable to PURCHASER with a Bank acceptable to
PURCHASER
to obtain electronic fund transfer services for the Account, and (B) if applicable, execute an agreement acceptable to PURCHASER with a credit and debit
card processor (the "Processor") instructing the Processor to deposit all Receipts into the Account. Merchant shall provide PURCHASER and/or its authorized agent(s)
with all of the information and authorizations
necessary for verifying Merchant's receivables, receipts, deposits and withdrawals into and from the Account. Merchant
hereby authorizes PURCHASER and/or its agent(s) to withdraw from the Account via ACHdebit the amounts owedto PURCHASER for the receipts as specified herein
and to deliver such amounts to PURCHASER. These authorizations apply not only to the approved Account but also to any subsequent or alternate account used by the
Merchant for these deposits.
1.2 NoFixed Term of Agnement. The term of this Agreement is indefinite and shall continue the entire Purchased Amount and any other amounts due are received by
PURCHASER as per the terms of this Agreement, or earlier if terminated pursuant to any provision of this Agreement.
1.3 Reconciliationand Changesto the Remittance Amount. The Initial Remittance amount is intended to represent the Purchased Percentage of Merchant's daily
Future At any time, Merchant or PURCHASER
Receipts. may request a reconciliation to the Remittance amount to more closely reflect the Merchant's actual Future
Receipts times the Purchased Percentage. Any reconciliation request by Merchant must be: (A) in writing; (B) include a copy of Merchant's most recent month's bank
statement and Merchant's month-to date banking information (the "Reconciliation Documentation"); and (C) be sent to PURCHASER by e-mail at:
æconciliations@byzfunder.com. Within four days of PURCHASER'sreasonable verification of the Reconciliation Documentation, PURCHASER shall adjust the
Remittance amount on a going-forward basis. The adjusted Remittance amount will be based on Merchant's actual Future Receipts times the Purchased Percentage.
Following this adjustment, the Remittance amount will be in the same amount until a subsequent adjustment. If PURCHASER requests a reconciliation, Merchant shall
provide Reconciliation Documentation within seven calendar days of PURCHASER'S request. If Merchant fails to provide requested Reconciliation Documentation
within seven calendar days, PURCHASER may adjust the Remittance amount to the Initial Remittance amount.
1.4 Transactional History. Merchant authorizes all of its banks, brokers and processor to provide PURCHASER with Merchant's banking, brokerage and/or
processing history to determine qualification in this program and for collections purposes, if necessary. Merchant shall provide PURCHASER with copies of any
documents reasonably related to Merchant's card processing activity or Future Receipts within five (5) business days after a request from PURCHASER.
1.5 Sale of Receipts. Menhant and PURCHASER agree that the Purchase Price under this Agreement is in exchange for the Punhased Amount, and that
such Punhase Price is not intended to be, nor shall it be construed as a loan from PURCHASER to Mer hant. Merchant agrees that the Purchase Price is in
exchange for the Receipts pursuant to this Agreement, and that it equals the fair market value of such Receipts. PURCHASER has purchased and shall own all
the Receipts described in this Agreement up to the full Purchased Amount as the Receipts are created. Merchant acknowledges that PURCHASER'sshare of Receipts
collected are being held by Merchant in trust and are the sole property of PURCHASER until they are remitted to PURCHASER. Payments madeto PURCHASER in
respect to the full amount of the Receipts shall be conditioned upon Merchant's sale of products and services, and the payment by Merchant's customers. By this
Agreement, Merchant transfers to PURCHASER full and complete ownership of the Purchased Amount and Merchant retains no legal or equitable interest therein.
PURCHASER hereby appoints Merchant, and Merchant accepts appointment, as servicer for and on behalf of PURCHASER for the purpose of collecting and
delivering Receipts to PURCHASER as required by this Agreement. Merchant agrees that it will treat the amounts received and the Purchased Receipts delivered to
PURCHASER under this Agreement in a manner consistent with a sale in its accounting records and tax returns.
1.6 Credit Report and Other Authorizations. Merchant and each of the Guarantors authorize PURCHASER, its agents and representatives and any credit reporting
agency engaged by PURCHASER, to (i) investigate any references given or any other statements or data obtained from or about Merchant or any of the Guarantors for
the purpose of this Agreement; (ii) obtain consumer and business credit reports on the Merchant and any Guarantors; and (iii) to contact personal and business
references provided by Merchant in any application, at any time now or for so long as Merchant and/or Guarantors continue to have any obligations to PURCHASER
as a consequence of this Agreement or for PURCHASER'S ability to determine Merchant's eligibility to enter into any future agreement with PURCHASER.
2 WARRANTIES
REPRESENTATIONS, ANDCOVENANTS
Merchant represents warrants and covenants that, as of this date and, unless otherwise stated, during the course of this Agreement:
2.1 Condition and Financial
Financial Information. Merchant's bank and financial statements, copies of which have been furnished to PURCHASER, and future
statements which will be furnished hereafter at the request of PURCHASER, fairly represent the financial condition of Merchant at such dates. PURCHASER may
request bank statements and month-to-date bank activity information at any time during the performance of this Agreement and Merchant shall provide them to
PURCHASER within five (5) business days after request from PURCHASER. Merchant's failure to do so is a material breach of this Agreement.
2.2 Governmental Approvals. Merchant 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.
2.3 Authorization. Merchant, and the person(s) signing this Agreement on behalf of Merchant, have full power and authority to incur and perform the obligations under
this Agreement, all of which have been duly authorized.
2.4 Use of Funds. Merchant agrees that it shall use the Purchase Price for business purposes and not for personal, family, or household purposes.
2.5 NoDiversion of Futum Receipts. Merchant will deposit all Future Receipts in the Account and will not revoke authorization for PURCHSER to debit the Account,
change the Processor, add processing terminals, change its financial institution or bank account(s), without PURCHASER'sprior written consent. Any such changes shall
be a material breach of this Agreement.
2.6 Change of Nameor Location. Merchant will not conduct Merchant's businesses under any nameother than as disclosed to the Processor and PURCHASER,
nor
shall Merchant change any of its places of business without prior written consent by PURCHASER.
2.7 Daily Batch Out. Merchant will batch out receipts with the Processor on a daily basis if applicable.
2.8 Estoppel Certificate. Merchant will at every and all times, and from time to time, upon at least one (1) day's prior notice from PURCHASER to Merchant, execute,
acknowledge and deliver to PURCHASER and/or to any other person, firm or corporation specified by PURCHASER, 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 modifications) and stating
Initial(s): ) }yl
BYZFUNDER werchant Guarantor #1 Guarantor #2
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the dates which the Purchased Amount or any portion thereof has been delivered.
2.9 Bankruptcy. As of the date of this Agreement, Merchant does not contemplate filing for bankruptcy in the next six months and has not consulted with a bankruptcy
attorney or filed any petition for bankruptcy protection pursuant to the United States Bankruptcy Code and there has been no involuntary petition brought or pending
against Merchant. Merchant further warrants that, as of the date of this Agreement, it does not anticipate filing any such bankruptcy petition and it does not anticipate that
an involuntary petition will be filed against it.
2.10 Unencumbeird Receipts. Merchant has good, complete, unencumbered and marketable title to all Receipts and all collateral in which PURCHASER has been
granted a security interest under the Security Agreement, free and clear of any and all liabilities, liens, claims, charges, restrictions, conditions, options, rights, mortgages,
security interests, equities, pledges and encumbrances of any kind or nature whatsoever other than in favor of PURCHASER or any other rights or interests that may be
inconsistent with the transactions contemplated with, or adverse to the interests of PURCHASER, other than any for which PURCHASER has actual or constructive
knowledge of as of the date of this Agreement. Merchant shall not enter into any other agreement for the sale of Future Receipts and/or cash advance agreement or
financing or factoring agreement absent PURCHASER'sadvance written consent.
2.11 Business Purpose. Merchant is a valid business in good standing under the laws of the jurisdictions in which it is organized and/or operates, and Merchant is
entering into this Agreement for business purposes and not as a consumer for personal, family or household purposes.
Change of Nameor Location or Sale or Closing of
2.12 Business. Merchant will not conduct Merchant's businesses under any name other than as disclosed to
PURCHASER or change any of its places of business without prior written consent of PURCHASER.
Merchant will sell, dispose, transfer or otherwise
not voluntarily
voluntarily convey all or substantially all of its business or assets without (i) the express prior written consent of PURCHASER;
and (ii) the written agreement of any
purchaser or transferee assuming all of Merchant's obligations under this Agreement pursuant to documentation satisfactory to PURCHASER. Except as disclosed to
PURCHASER in writing, as of the date of this Agreement, Merchant has no current plans to close its business either temporarily, whether for renovations, repairs or any
other pHpose, or permanently. PURCHASER will not voluntarily close its business on a temporary basis for renovations, repairs, or any other purposes without consent
from PURCHASER. This provision, however, does not prohibit Merchant 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
days'
control of Merchant. Prior to any such closure, Merchant will provide PURCHASER ten business notice to the extent practicable.
2.13 Accurate and Complete Information. Merchant represents, warrants, and agrees that all information provided to PURCHASER and all statements made to
PURCHASER relating to this transaction in any way have been truthful, accurate,and complete. Merchant further agrees that Merchant will be truthful in all future
statements to PURCHASER, and will provide PURCHASER with accurate and complete information regarding Merchant's business as required by this Agreement.
2.14 Meithant to Pay Thxes Promptly. Merchant will promptly pay all necessary taxes, including but not limited to employment and sales and use taxes.
2.15 Good Faith. Merchant and Guarantor(s) hereby affirm that Merchant is receiving the Purchase Price and selling PURCHASER
the Purchased Amount in good faith
and will use the Purchase Price funds to maintain and grow Merchant's business.
3 EVENTSOFDEFAULTANDREMEDIES
Default"
3.1 Events of Default. The occurrence of any of the following events shall constitute an "Event of hereunder:
(a) Merchant violates any term or covenant in this Agreement;
(b) Any representation or warranty by Merchant in this Agreement shall prove to have been incorrect, false or misleading in any material respect when made; and
(c) Merchant fails to provide its bank statements, and/or month to date banking activity within five (5) business days after a request by PURCHASER.
3.2 Remedies. Uponthe occurrence of an Event of Default, PURCHASER may proceed to protect and enforce its rights or remedies by suit in equity or by action at law,
or both, whether for the specific performance of any covenant, agreement or other provision contained herein, or to enforce the discharge of Merchant's obligations
hereunder (including the Guaranty) or any other legal or equitable right or remedy, including but not limited to filing an action, and enforcing the Security Agreement
contained herein. Upon the occurrence of an Event of Default, the Purchased Percentage shall equal 100% and the full undelivered Purchased Amount plus all fees and
charges (including legal fees) assessed under this Agreement will becomedue and payable in full immediately. Subject to arbitration in Section 5, all rights, powers and
remedies of PURCHASER in connection with this Agreement may be exercised at any time by PURCHASER after the occurrence of an Event of Default, are cumulative
and not exclusive, and shall be in addition to any other rights, powers or remedies provided by law or equity.
3.3 Attorney's Fees. Upon the occurrence of an Event of Default, if Purchaser retains an attorney or law firm to enforce this Agreement, Merchant and Guarantor(s)
agree that Merchant shall pay PURCHASER'sreasonable attorney's fees in the amount of 30% of Purchased Amount that is undeliveredas of the date of the Event of
Default.
3.4 Costs. Merchant shall pay to PURCHASER all reasonable costs associated with (a) an Event or Default, (b) breach by Merchant of the Covenants in this Agreement
and the enforcement thereof, and(c) the enforcement of PURCHASER'sremedies set forth in this Agreement, including but not limited to collection costs, court costs and
attorneys'
reasonable fees.
4 MISCELLANEOUS
4.1 Modifications; Agreements. No modification, amendment, waiver or consent of any provision of this Agreement shall be effective unless the same shall be in
writing and signed by PURCHASER.
4.2 Assignment. PURCHASER
may assign, transfer or sell its rights to receive the Purchased Amount or delegate its duties hereunder, either in whole or in part.
4.3 Notices. Except for Reconciliation requests under Section 1.3 of this Agreement, all notices, requests, consents, demands and other communications hereunder shall be
delivered by certified mail, return receipt requested, to the respective parties to this Agreement at the addresses set forth in this Agreement. Notices to PURCHASER shall
becomeeffective only upon receipt by PURCHASER.
Notices to Merchant shall becomeeffective three days after mailing.
as" "d/b/a"
4.4 D/B/As. Merchant hereby acknowledges and agrees that PURCHASER
may be using "daing business or names in connection with various matters
relating to the transaction between PURCHASER and Merchant, including the filing of UCC-1 financing statements and other notices or filings.
4.5 Waiver Remedies. No failure on the part of PURCHASER to exercise, and no delay in exercising any right under this Agreement shall operate as a waiver thereof,
nor shall any single or partial exercise of any right under this Agreement preclude any other or further exercise thereof or the exercise of any other right. Subject to
arbitration in Section 5, the remedies provided hereunder are cumulative and not exclusive of any remedies provided by law or equity.
4.6 Binding Governing Law, Venue and Jurisdiction.
Effect; This Agreement, Security Agreement and Guaranty of Performance, and any and all addendums
attachments, and other documents relating to this Agreement in any way, shall be binding upon and inure to the benefit of Merchant and Guarantor(s) on the one
exhibits,
hand, and PURCHASER and their respective successors and assigns, except that Merchant and Guarantor(s) shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of PURCHASER which consent may be withheld in PURCHASER'ssole discretion. PURCHASER reserves the rights to
p ,.
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Initial(s): c_4 ) 77/
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. -. Merchant Guarantor #1 Guarantor #2
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NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/07/2024
assign this Agreement with or without prior written notice to Merchant. This Agreement, Security Agreement and Guaranty of Performance, and any and all addendums,
attachments, exhibits, and other documents relating to this Agreement in any way, shall be governed by and construed in accordance withthe laws of the state of New
York and the federal Arbitration Act, without regard to any applicable principals of conflicts of law. Any suit, action or proceeding arising hereunder, or the interpretation,
performance or breach hereof, shall, if PURCHASER so elects, be instituted in any NewYork State Supreme Court sitting in the State of NewYork, (the "Acceptable
Forums"). All Parties and signatories to this Agreement, including but not limited to, the Merchant and Guarantor(s) agree that the Acceptable Forums are convenient to
it, and submit to the jurisdiction of the Acceptable Forums and waive any and all objections to jurisdiction or venue. Should such proceeding be initiated in any other
forum, Merchant and Guarantor(s) waives any right to oppose any motion or application madeby PURCHASER to transfer such proceeding to an Acceptable Forum.
Memhant and Guarantor(s) hemby agme that the mailing of any Summonsand Complaint in any proceeding commencedby PURCHASER by certified or
mgiste ed mail, mturn aceipt equested to the Mailing Addess listed on this Agnement (or any other addresses pmvided in writing to PURCHASER), will
constitute valid and lawful service of process against them without the necessity for service by any other means provided by statute or rule of court, and such
service shall be deemedcomplete five (5) days after dispatch.
4.7 Survival of Representation. All representations, warranties and covenants herein shall survive the execution and delivery of this Agreement and shall continue in
full force until all obligations under this Agreement shall have been satisfied in full and this Agreement shall have terminated.
4.8 Interpetation. All Parties hereto have had the opportunity to review this Agreement with attorney of their own choosing and have relied only on their own
attorneys'
guidance and advice. No construction determinations shall be madeagainst either Party hereto as drafter.
4.9 Severability. In case any of the provisions in this Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability
of any other provision contained herein shall not in any way be affected or impaired.
4.10 Agreement. Any provision hereof prohibited by law shall be ineffective only to the extent of such prohibition without invalidating the remaining provisions
Entire
hereof. This Agreement and the Security Agreement and Guaranty of Performance hereto embodythe entire agreement between Merchant, Guarantor(s) and Corporate
Guarantor(s) and PURCHASER and supersede all prior agreements and understandings relating to the subject matter hereof.
4.11 Facsimile & Digital Acceptance. Facsimile signatures and digital signatures hereon shall be deemedacceptable for all purposes.
JURYTRIAL WAIVER.THE PARTIES HERETOWAIVE TRIAL BY JURYIN ANY COURTIN ANY SUIT, ACTIONORPROCEEDING
4.12 ONANY
MATTER WITH ORIN ANYWAYRELATEDTO THETRANSACTIONS
ARISING IN CONNECTION ORTHE ENFORCEMENT HEREOF. THE PARTIES
HERETOACKNOWLEDGE THATEACHMAKESTHIS WAIVERKNOWINGLY, WILLINGLYANDVOLUNTARILY ANDWITHOUT DURESS,ANDONLY
THEOPPORTUNITY
TOCONSIDERTHE RAMIFICATIONS OFTHIS WAIVERWITHTHEIR ATTORNEYS.
CLASS ACTIONWAIVER. THE PARTIES HERETOWAIVE ANY RIGHTTO ASSERTANY CLAIMSAGAINSTTHE OTHERPARTYAS A
4.13
REPRESENTATIVEORMEMBER IN ANY CLASSORREPRESENTATIVEACTION, EXCEPTWHERE SUCHWAIVER IS PROHIBITED BY LAWAS
AGAINSTPUBLIC POLICY. TO THE EXTENTEITHER PARTYIS PERMITTEDBY LAWORCOURT OF LAWTO PROCEEDWITH A CLASSOR
REPRESENTATIVEACTIONAGAINSTTHE OTHER, THE PARTIESHEREBYAGREE THAT: (1) THEPREVAILING PARTYSHALLNOTBE ENTITLED TO
RECOVERATTORNEYS' FEES ORCOSTS ASSOCIATED THECLASSOR REPRESENTATIVEACTION (NOT WITHSTANDINGANY
WITHPURSUING
OTHERPROVISION IN THIS AGREEMENT);AND (2) THE PARTYWHOINITIATES OR PARTICIPATESAS A MEMBEROFTHECLASSWILL
NOTSUBMITA CLAIMOROTHERWISE PARTICIPATEIN ANYRECOVERY THROUGH
SECURED THECLASSORREPRESENTATIVEACTION.
5.ARBITRATION
IF PURCHASER,MERCHANT ORANYGUARANTOR REQUESTS, THEOTHERPARTIES AGREETOARBITRATEALL DISPUTESANDCLAIMS
ARISING OUTOFORRELATINGTO THIS AGREEMENT. IF PURCHASER, MERCHANT ORANYGUARANTOR SEEKSTO HAVEA DISPUTE
SETTLEDBY ARBITRATION,THATPARTYMUSTFIRST SENDTOALL OTHERPARTIES, BY CERTIFIEDMAIL, A WRITTENNOTICE OF
INTENT TO ARBITRATE.IF PURCHASER,MERCHANT ORANYGUARANTOR DONOTREACHANAGREEMENT TORESOLVE THECLAIM
WITHIN 30 CALENDAR DAYSAFTERTHE NOTICE IS RECEIVED,PURCHASER,MERCHANT ORANYGUARANTOR MAYCOMMENCE AN
ARBITRATIONPROCEEDING WITHTHEAMERICAN ARBITRATIONASSOCIATION("AAA") ORTHEFORUM. PURCHASER WILLPROMPTLY
REIMBURSE MERCHANT ORTHEGUARANTOR FORANYARBITRATIONFILING FEE, HOWEVER, IN THEEVENTTHATBOTHMERCHANT
ANDTHEGUARANTOR MUSTPAY FILING FEES, PURCHASER WILL ONLYREIMBURSE MERCHANT'S ARBITRATIONFILING FEE AND,
EXCEPTAS PROVIDEDIN THE NEXT SENTENCE,PURCHASER WILL PAY ALL ADMINISTRATIONANDARBITRATOR FEES. IF THE
ARBITRATOR FINDS THATEITHER THE SUBSTANCEOF THE CLAIM RAISED BY MERCHANT ORTHE GUARANTOR ORTHE RELIEF
SOUGHT BYMERCHANT ORTHEGUARANTOR IS IMPROPER ORNOTWARRANTED, AS MEASURED BYTHESTANDARDS SET FORTHIN
FEDERAL RULEOFPROCEDURE 11(B), THENPURCHASER WILL PAYTHESEFEESONLYIF REQUIRED BYTHEAAAORFORUMRULES.
MERCHANT ANDTHEGUARANTOR AGREETHAT, BYENTERING INTO THIS AGREEMENT,THEYAREWAIVING THERIGHTTOTRIAL BY
JURY. PURCHASER,MERCHANT ORANYGUARANTOR MAYBRING CLAIMS AGAINSTANYOTHERPARTYONLYIN THEIR INDIVIDUAL
CAPACITY, ANDNOTAS A PLAINTIFF ORCLASSMEMBER IN ANYPURPORTED CLASSORREPRESENTATIVE PROCEEDING.FURTHER,
PURCHASER,MERCHANT ANDANYGUARANTOR AGREETHATTHEARBITRATOR MAYNOTCONSOLIDATEPROCEEDINGS FORMORE
THANONEPERSON'SCLAIMS,ANDMAYNOTOTHERWISE PRESIDEOVERANYFORM OF A REPRESENTATIVE ORCLASSPROCEEDING,
ANDTHATIF THIS SPECIFIC PROVISIONDEALINGWITHTHEPROHIBITIONON CONSOLIDATED,CLASSORAGGREGATED CLAIMS IS
FOUNDUNENFORCEABLE, THENTHE ENTIRETY OFTHIS ARBITRATIONCLAUSESHALLBE NULLANDVOID. THIS AGREEMENT TO
ARBITRATE IS GOVERNED BY THEFEDERAL ARBITRATIONACTANDNOTBYANY STATELAWREGULATING THEARBITRATIONOF
DISPUTES. THIS AGREEMENT IS FINAL ANDBINDING EXCEPT TOTHEEXTENTTHATANAPPEALMAYBE MADEUNDERTHEFAA. ANY
ARBITRATION DECISION RENDERED PURSUANT TO THIS ARBITRATION AGREEMENT MAYBE ENFORCED IN ANY COURTWITH
JURISDICTION. THETERMS "DISPUTES" AND"CLAIMS" SHALLHAVETHEBROADEST POSSIBLEMEANING.
RIGHTTOOPTOUTOFARBITRATION:MERCHANT ANDGUARANTOR(S)MAYOPTOUTOFTHEARBITRATIONCLAUSE ABOVE.TOOPT
OUT OF THIS ARBITRATIONCLAUSE,MERCHANT ANDEACHGUARANTOR MUSTSENDPURCHASER A NOTICE THATTHEMERCHANT
ANDEACHGUARANTOR DOESNOTWANTTHIS CLAUSETO APPLY TO THIS AGREEMENT. FORANY OPTOUTTO BE EFFECTIVE,
MERCHANT ANDEACHGUARANTOR MUSTSENDANOPTOUTNOTICETOTHEFOLLOWING ADDRESS BYREGISTEREDMAIL, WITHIN 14
CALENDAR DAYSAFTERTHEDATEOFTHIS AGREEMENT: BYZFUNDER,LLC HEADOFOPERATIONS, ARBITRATIONOPTOUT, 530 7th Ave
Suite 505, NewYork, NY10018.
Initial(s): ) Qyl
BYZFUNDER werchant Guarantor #1 Guarantor #2
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AGRERMENT
SECURTTY ANDGUAR
ANTYOFPERFORMANCE
CONDmONS
THE TERMS, DEFINITIONS, AND INFORMATIONSET FORTH IN THE "REVENUEPURCHASEAGREEMENT",INCLUDINGTHE
"MERCHANT AGREEMENT
TERMSANDCONDITIONS", AREHEREBY INCORPORATED IN ANDMADEA PARTOFTHIS SECURITYAGREEMENT
AND
GUARANTY CAPITALIZED TERMS
OFPEFORMANCE. NOTDEFINEDIN THIS SECURITY
AGREEMENTANDGUARANTY SHALLHAVETHEMEANING
SET FORTHIN THEREVENUE
PURCHASE AGREEMENT,INCLUDINGTHEMERCHANT AGREEMENTTERMS ANDCONDITIONS.
Merchant's Legal Name: Current Electric of WA,LLC.
D/B/A: Current Electric of WA Federal ID#:
Physical Address: 14111 74th Avenue Court East City·
Puyallup State: WA Zip: 98373
ACKNOWLEDGMENT
OF SECURITYINTERESTANDSECURITYAGREEMENT.
The Future Receipts sold by Merchant to Purchaser pursuant to the
Revenue Purchase Agreement shall constitute and shall be construed and treated for all purposes as a true and complete sale, conveying good title to the Future Receipts
"accounts" intangibles"
free and clear of any liens and encumbrances, from Merchant to Purchaser. To the extent the Future Receipts are or "payment as those terms are
defined in the Uniform Commercial Codeas in effect in the state in which the Merchant is located ("UCC") then: (i) the sale of the Future Receipts creates a security
interest as defined in the UCC; (ii) this Security Agreement constitutes a "security
agreement" under the
UCC; and (iii) Purchaser has all the rights of a secured party
under the UCCwith respect to such Future Receipts. Merchant further agrees that, with or without an Event of Default, Purchaser may notify account debtors, or other
persons obligated on the Future Receipts, or holding the Future Receipts, of Merchant's sale of the Future Receipts and may instruct them to makepayment or otherwise
render performance to or for the benefit of Pumhaser.
Negative Pledge. Merchant and Guarantor(s) each agrees not to create, incur, assume, or permit to exist, directly or indirectly, any lien on or with respect to the Future
Receipts.
GUARANTY
OFPERFORMANCE
Each Guarantor is an owner of Merchant and is involved in the day-to-day business operations of Merchant. Each Guarantor agrees to irrevocably, absolutely and
guarantee to Purchaser prompt and complete performance of the following
unconditionally obligations of Merchant (the "Guaranteed Obligations"):
1. Merchant's obligation provide its bank statements, and/or month to date banking activity within five (5) business days after a request by Purchaser,
2. Merchant's obligation to not enter into any other agreement for the sale of Future Receipts and/or cash advance agreement or financing or factoring agreement
absent Purchaser's advance written consent.
3. Merchant's obligation to deposit all Future Receipts in the Account and to not revoke authorization for Purchaser to debit the Account or change the Processor,
add processing terminals, change its financial institution or bank account(s), without Purchaser's prior written consent.
4. Merchant's obligation to not conduct Merchant's businesses under any nameother than as disclosed to the Processor and Purchaser, or change any of its places
of business without prior written consent by Purchaser.
5. Merchant's obligation to provide truthful, accurate, and complete information.
Guarantor(s) Waivers. Purchaser does not have to notify Guarantor of any of the following events and Guarantor will not be released from its obligations under the
Revenue Purchase Agreement and this Personal Guaranty of Performance if it is not notified of: (i) Merchant's failure to timely perform any obligation under the Revenue
Purchase Agreement; (ii) any adverse change in Merchant's financial condition or business; (iii) Purchaser's acceptance of the Revenue Purchase Agreement; and (iv) any
renewal, extension or other modification of the Revenue Purchase Agreement or Merchant's other obligations to Purchaser. In addition, Purchaser may take any of the
following actions without releasing Guarantor from any of its obligations under the Revenue Purchase Agreement and this Guaranty of Performance, (i) renew, extend or
otherwise modify the Revenue Purchase Agreement or Merchant's other obligations to Purchaser; and (ii) release Merchant from its obligations to Purchaser. Guarantor
shall not seek reimbursement from Merchant or any other guarantor for any amounts paid by it under the Revenue Purchase Agreement or this Personal Guaranty of
Performance. Guarantor permanently waives and shall not seek to exercise any of the following rights that it may have against Merchant, or any other guarantor, for any
amounts paid by it, or acts performed by it, under the Revenue PuKhase Agreement or this Personal Guaranty of Performance: (i) subrogation; (ii) reimbursement; (iii)
performance; (iv) indemnification; or (v) contribution.
This Security Agreement and Guaranty of Performance shall be governed by and construed in accordance with the laws of the state of NewYork, without regards to any
applicable principals of conflicts of law. Any suit, action or proceeding arising hereunder, or the interpretation, performance or breach hereof, shall, if Purchaser so elects,
be instituted in any state Supreme Court sitting in the State of NewYork, (the "Acceptable Forums"). Merchant and Guarantor(s) agree that the Acceptable Forums are
convenient to it, and submits to the jurisdiction of the Acceptable Forums and waives any and all objections to jurisdiction or venue. Merchant and Guarantor(s) agree that
the Acceptable Forums are convenient to it, and submit to the jurisdiction of the Acceptable Forums and waives any and all objections to jurisdiction or venue. Should such
proceeding be initiated in any other forum, Merchant and Guarantor waive any right to oppose any m
Preview
FILED: NASSAU COUNTY CLERK 06/07/2024 11:56 AM INDEX NO. 609954/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/07/2024 EXHIBIT A FILED: NASSAU COUNTY CLERK 06/07/2024 11:56 AM INDEX NO. 609954/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/07/2024 I-4V / I-I II\I I II- LJ PURCHASE REVENUE AGREEMENT This Revenue Purchase Agreement and Security Agreement and Guaranty of Performance ("Agreement") dated 07/14/2023 between Byzfunder NY LLC DBA Byzfunder located at 530 7th Ave Suite 505, NewYork, NY 10018 ("PURCHASER") the Merchant(s) listed below ("Merchant") and the Individual(s) listed below (each a "Guarantor") INFORMATION MERCHANT Merchant's Legal Name: Current Electric of WA,LLC. D/B/A: Current Electric of WA State of Incorporation / Organizatiorr WA Type of Entity: Limited Liability Company Physical Address: 14111 74th Avenue Court East City: Puyallup State: WA Zip: 98373 Business Phone: 253-227-2383 Guarantor(s) Name: Michael Anthony Heard Cellphone Number Email Address: Heard102003@yahoo.com Mailing Address: 14111 74th Avenue Court East City: Puyallup State: WA Zip: 98373 Purchase Price: $150.000.00 Purchased Percentage: 10.00% Purchased Amount: $211.500.00 Remittance Frequency: Weekly Initial Remittance: $6.609.38 Origination Fee: $4.500.00 Processing Fee: $495.00 (Deducted from Purchase Price) (Deducted from Purchase Price) Net Amount Funded to Merchant: $145,005.00 In consideration of payment by PURCHASER to Merchant of the Purchase Price set forth above, Merchant hereby sells, assigns and transfers to PURCHASER (making PURCHASER the absolute owner) the Puxhased Percentage of all of Mexhant's payments, receipts, settlements and funds paid to or received by or for the account of Merchant fmmtime to time on and after the date hereof in payment or settlement of Merchant's existing and future accounts, payment intangibles, credit, debit and/or stored value card transactions, contract rights and other entitlements customers' and/or other Receipts" arising fmmor relating to the payment of monies fmmMerchant's payors or obligors (the "Future defined as all payments madeby cash, check, clearinghouse settlement, electronic transfer or other form of monetary payment), for the payments to Membantas a result of Merchant's sale of goods and/or services until the Purchased Amount has been delivered by or on behalf of Mexhant to PURCHASER. Merchant is selling a portion of a future revenue stream to PURCHASER at a discount, and is not borrowing money from PURCHASER, therefore there is no interest rate or payment schedule and no time period daring which the Purchased Amountmnst be collected by PURCHASER. The Initial Remittans is a good faith estimate of PURCHASER's share of the future revenue stream. Merchant going bankrupt or going out of business, or experiencing a slowdown in business, or a delay in collecting its receivables does not constitute a breach of this Agreement. PURCHASER is entering this Agreement knowing the risks that Merchant's business may not perform as expected or fail, and PURCHASER assumes these risks based on Memhant's representations, warranties and covenants in this Agreement, which are designed to give PURCHASER a reasonable and fair opportunity to receive the benefit of its bargain. PURCHASER acknowledges that it may never receive the Purchased Amount in the event that the Merchant does not generate sufficient revenue. Merchant and Guarantor(s) are only guaranteeing their performance of the terms of this Revenue Pumbase Agreement, and are not guaranteeing the payment of the PumbasedAmount. The Initial Remittance shall be as described above and is subject to adjustment as set forth in Section 1.3. PURCHASER will debit the Remittance each business day from only one depositing bank account, which account must be acceptable to, and pre-approved by, PURCHASER (the "Account") into which Merchant and Merchant's customers shall remit the Receipts from cach transaction. Merchant hereby authorizes PURCHASER to ACHdebit the agreed Remittance from the Account on the agreed upon Remittance Frequency; a daily basis means any business day that is not a United States banking holiday. PURCHASER'S payment of the Purchase Price shall be deemedthe acceptance and performance by PURCHASER of this Agreement A list of all fees applicable under this Agreement is contained in Appendix A. THE"MERCHANT AGREEMENT TERMSANDCONDITIONS",ANDTHE"SECURITYAGREEMENT ANDPERFORMANCE GUARANTY",AREALL HEREBY S IN ANDMADE INCORPORATED APARTOFTHISAGREEMENT. FORTHEMERCHANT Michael Anthony Heard, Member f of C “ rp f ) f) (#1) By: (Print Nameand mtle) (Signature) Diane Vern McNeil, Member (Print Nameand tle) (Signature) Michael Anthony Heard, Member BYGUARANTOR(S) (#1) By (Print Nameand tle) (Signature) Diane VemMcNeil, Member BYGUARANTOR(S) (#2) By: N (Print Nameand tle) (Signature) Y 4. J !N!.2 M Merchant Guarantor #1 Guarantor #2 1 FILED: NASSAU COUNTY CLERK 06/07/2024 11:56 AM INDEX NO. 609954/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/07/2024 MERCHANT AGREEMENT TERMSANDCONDITIONS 1 IN PROGRAM TERMSOFENROLLMENT 1.1 Merchant Deposit Agreement and Processor. Merchant shall (A) if applicable, execute an agreement acceptable to PURCHASER with a Bank acceptable to PURCHASER to obtain electronic fund transfer services for the Account, and (B) if applicable, execute an agreement acceptable to PURCHASER with a credit and debit card processor (the "Processor") instructing the Processor to deposit all Receipts into the Account. Merchant shall provide PURCHASER and/or its authorized agent(s) with all of the information and authorizations necessary for verifying Merchant's receivables, receipts, deposits and withdrawals into and from the Account. Merchant hereby authorizes PURCHASER and/or its agent(s) to withdraw from the Account via ACHdebit the amounts owedto PURCHASER for the receipts as specified herein and to deliver such amounts to PURCHASER. These authorizations apply not only to the approved Account but also to any subsequent or alternate account used by the Merchant for these deposits. 1.2 NoFixed Term of Agnement. The term of this Agreement is indefinite and shall continue the entire Purchased Amount and any other amounts due are received by PURCHASER as per the terms of this Agreement, or earlier if terminated pursuant to any provision of this Agreement. 1.3 Reconciliationand Changesto the Remittance Amount. The Initial Remittance amount is intended to represent the Purchased Percentage of Merchant's daily Future At any time, Merchant or PURCHASER Receipts. may request a reconciliation to the Remittance amount to more closely reflect the Merchant's actual Future Receipts times the Purchased Percentage. Any reconciliation request by Merchant must be: (A) in writing; (B) include a copy of Merchant's most recent month's bank statement and Merchant's month-to date banking information (the "Reconciliation Documentation"); and (C) be sent to PURCHASER by e-mail at: æconciliations@byzfunder.com. Within four days of PURCHASER'sreasonable verification of the Reconciliation Documentation, PURCHASER shall adjust the Remittance amount on a going-forward basis. The adjusted Remittance amount will be based on Merchant's actual Future Receipts times the Purchased Percentage. Following this adjustment, the Remittance amount will be in the same amount until a subsequent adjustment. If PURCHASER requests a reconciliation, Merchant shall provide Reconciliation Documentation within seven calendar days of PURCHASER'S request. If Merchant fails to provide requested Reconciliation Documentation within seven calendar days, PURCHASER may adjust the Remittance amount to the Initial Remittance amount. 1.4 Transactional History. Merchant authorizes all of its banks, brokers and processor to provide PURCHASER with Merchant's banking, brokerage and/or processing history to determine qualification in this program and for collections purposes, if necessary. Merchant shall provide PURCHASER with copies of any documents reasonably related to Merchant's card processing activity or Future Receipts within five (5) business days after a request from PURCHASER. 1.5 Sale of Receipts. Menhant and PURCHASER agree that the Purchase Price under this Agreement is in exchange for the Punhased Amount, and that such Punhase Price is not intended to be, nor shall it be construed as a loan from PURCHASER to Mer hant. Merchant agrees that the Purchase Price is in exchange for the Receipts pursuant to this Agreement, and that it equals the fair market value of such Receipts. PURCHASER has purchased and shall own all the Receipts described in this Agreement up to the full Purchased Amount as the Receipts are created. Merchant acknowledges that PURCHASER'sshare of Receipts collected are being held by Merchant in trust and are the sole property of PURCHASER until they are remitted to PURCHASER. Payments madeto PURCHASER in respect to the full amount of the Receipts shall be conditioned upon Merchant's sale of products and services, and the payment by Merchant's customers. By this Agreement, Merchant transfers to PURCHASER full and complete ownership of the Purchased Amount and Merchant retains no legal or equitable interest therein. PURCHASER hereby appoints Merchant, and Merchant accepts appointment, as servicer for and on behalf of PURCHASER for the purpose of collecting and delivering Receipts to PURCHASER as required by this Agreement. Merchant agrees that it will treat the amounts received and the Purchased Receipts delivered to PURCHASER under this Agreement in a manner consistent with a sale in its accounting records and tax returns. 1.6 Credit Report and Other Authorizations. Merchant and each of the Guarantors authorize PURCHASER, its agents and representatives and any credit reporting agency engaged by PURCHASER, to (i) investigate any references given or any other statements or data obtained from or about Merchant or any of the Guarantors for the purpose of this Agreement; (ii) obtain consumer and business credit reports on the Merchant and any Guarantors; and (iii) to contact personal and business references provided by Merchant in any application, at any time now or for so long as Merchant and/or Guarantors continue to have any obligations to PURCHASER as a consequence of this Agreement or for PURCHASER'S ability to determine Merchant's eligibility to enter into any future agreement with PURCHASER. 2 WARRANTIES REPRESENTATIONS, ANDCOVENANTS Merchant represents warrants and covenants that, as of this date and, unless otherwise stated, during the course of this Agreement: 2.1 Condition and Financial Financial Information. Merchant's bank and financial statements, copies of which have been furnished to PURCHASER, and future statements which will be furnished hereafter at the request of PURCHASER, fairly represent the financial condition of Merchant at such dates. PURCHASER may request bank statements and month-to-date bank activity information at any time during the performance of this Agreement and Merchant shall provide them to PURCHASER within five (5) business days after request from PURCHASER. Merchant's failure to do so is a material breach of this Agreement. 2.2 Governmental Approvals. Merchant 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. 2.3 Authorization. Merchant, and the person(s) signing this Agreement on behalf of Merchant, have full power and authority to incur and perform the obligations under this Agreement, all of which have been duly authorized. 2.4 Use of Funds. Merchant agrees that it shall use the Purchase Price for business purposes and not for personal, family, or household purposes. 2.5 NoDiversion of Futum Receipts. Merchant will deposit all Future Receipts in the Account and will not revoke authorization for PURCHSER to debit the Account, change the Processor, add processing terminals, change its financial institution or bank account(s), without PURCHASER'sprior written consent. Any such changes shall be a material breach of this Agreement. 2.6 Change of Nameor Location. Merchant will not conduct Merchant's businesses under any nameother than as disclosed to the Processor and PURCHASER, nor shall Merchant change any of its places of business without prior written consent by PURCHASER. 2.7 Daily Batch Out. Merchant will batch out receipts with the Processor on a daily basis if applicable. 2.8 Estoppel Certificate. Merchant will at every and all times, and from time to time, upon at least one (1) day's prior notice from PURCHASER to Merchant, execute, acknowledge and deliver to PURCHASER and/or to any other person, firm or corporation specified by PURCHASER, 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 modifications) and stating Initial(s): ) }yl BYZFUNDER werchant Guarantor #1 Guarantor #2 2 FILED: NASSAU COUNTY CLERK 06/07/2024 11:56 AM INDEX NO. 609954/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/07/2024 the dates which the Purchased Amount or any portion thereof has been delivered. 2.9 Bankruptcy. As of the date of this Agreement, Merchant does not contemplate filing for bankruptcy in the next six months and has not consulted with a bankruptcy attorney or filed any petition for bankruptcy protection pursuant to the United States Bankruptcy Code and there has been no involuntary petition brought or pending against Merchant. Merchant further warrants that, as of the date of this Agreement, it does not anticipate filing any such bankruptcy petition and it does not anticipate that an involuntary petition will be filed against it. 2.10 Unencumbeird Receipts. Merchant has good, complete, unencumbered and marketable title to all Receipts and all collateral in which PURCHASER has been granted a security interest under the Security Agreement, free and clear of any and all liabilities, liens, claims, charges, restrictions, conditions, options, rights, mortgages, security interests, equities, pledges and encumbrances of any kind or nature whatsoever other than in favor of PURCHASER or any other rights or interests that may be inconsistent with the transactions contemplated with, or adverse to the interests of PURCHASER, other than any for which PURCHASER has actual or constructive knowledge of as of the date of this Agreement. Merchant shall not enter into any other agreement for the sale of Future Receipts and/or cash advance agreement or financing or factoring agreement absent PURCHASER'sadvance written consent. 2.11 Business Purpose. Merchant is a valid business in good standing under the laws of the jurisdictions in which it is organized and/or operates, and Merchant is entering into this Agreement for business purposes and not as a consumer for personal, family or household purposes. Change of Nameor Location or Sale or Closing of 2.12 Business. Merchant will not conduct Merchant's businesses under any name other than as disclosed to PURCHASER or change any of its places of business without prior written consent of PURCHASER. Merchant will sell, dispose, transfer or otherwise not voluntarily voluntarily convey all or substantially all of its business or assets without (i) the express prior written consent of PURCHASER; and (ii) the written agreement of any purchaser or transferee assuming all of Merchant's obligations under this Agreement pursuant to documentation satisfactory to PURCHASER. Except as disclosed to PURCHASER in writing, as of the date of this Agreement, Merchant has no current plans to close its business either temporarily, whether for renovations, repairs or any other pHpose, or permanently. PURCHASER will not voluntarily close its business on a temporary basis for renovations, repairs, or any other purposes without consent from PURCHASER. This provision, however, does not prohibit Merchant 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 days' control of Merchant. Prior to any such closure, Merchant will provide PURCHASER ten business notice to the extent practicable. 2.13 Accurate and Complete Information. Merchant represents, warrants, and agrees that all information provided to PURCHASER and all statements made to PURCHASER relating to this transaction in any way have been truthful, accurate,and complete. Merchant further agrees that Merchant will be truthful in all future statements to PURCHASER, and will provide PURCHASER with accurate and complete information regarding Merchant's business as required by this Agreement. 2.14 Meithant to Pay Thxes Promptly. Merchant will promptly pay all necessary taxes, including but not limited to employment and sales and use taxes. 2.15 Good Faith. Merchant and Guarantor(s) hereby affirm that Merchant is receiving the Purchase Price and selling PURCHASER the Purchased Amount in good faith and will use the Purchase Price funds to maintain and grow Merchant's business. 3 EVENTSOFDEFAULTANDREMEDIES Default" 3.1 Events of Default. The occurrence of any of the following events shall constitute an "Event of hereunder: (a) Merchant violates any term or covenant in this Agreement; (b) Any representation or warranty by Merchant in this Agreement shall prove to have been incorrect, false or misleading in any material respect when made; and (c) Merchant fails to provide its bank statements, and/or month to date banking activity within five (5) business days after a request by PURCHASER. 3.2 Remedies. Uponthe occurrence of an Event of Default, PURCHASER may proceed to protect and enforce its rights or remedies by suit in equity or by action at law, or both, whether for the specific performance of any covenant, agreement or other provision contained herein, or to enforce the discharge of Merchant's obligations hereunder (including the Guaranty) or any other legal or equitable right or remedy, including but not limited to filing an action, and enforcing the Security Agreement contained herein. Upon the occurrence of an Event of Default, the Purchased Percentage shall equal 100% and the full undelivered Purchased Amount plus all fees and charges (including legal fees) assessed under this Agreement will becomedue and payable in full immediately. Subject to arbitration in Section 5, all rights, powers and remedies of PURCHASER in connection with this Agreement may be exercised at any time by PURCHASER after the occurrence of an Event of Default, are cumulative and not exclusive, and shall be in addition to any other rights, powers or remedies provided by law or equity. 3.3 Attorney's Fees. Upon the occurrence of an Event of Default, if Purchaser retains an attorney or law firm to enforce this Agreement, Merchant and Guarantor(s) agree that Merchant shall pay PURCHASER'sreasonable attorney's fees in the amount of 30% of Purchased Amount that is undeliveredas of the date of the Event of Default. 3.4 Costs. Merchant shall pay to PURCHASER all reasonable costs associated with (a) an Event or Default, (b) breach by Merchant of the Covenants in this Agreement and the enforcement thereof, and(c) the enforcement of PURCHASER'sremedies set forth in this Agreement, including but not limited to collection costs, court costs and attorneys' reasonable fees. 4 MISCELLANEOUS 4.1 Modifications; Agreements. No modification, amendment, waiver or consent of any provision of this Agreement shall be effective unless the same shall be in writing and signed by PURCHASER. 4.2 Assignment. PURCHASER may assign, transfer or sell its rights to receive the Purchased Amount or delegate its duties hereunder, either in whole or in part. 4.3 Notices. Except for Reconciliation requests under Section 1.3 of this Agreement, all notices, requests, consents, demands and other communications hereunder shall be delivered by certified mail, return receipt requested, to the respective parties to this Agreement at the addresses set forth in this Agreement. Notices to PURCHASER shall becomeeffective only upon receipt by PURCHASER. Notices to Merchant shall becomeeffective three days after mailing. as" "d/b/a" 4.4 D/B/As. Merchant hereby acknowledges and agrees that PURCHASER may be using "daing business or names in connection with various matters relating to the transaction between PURCHASER and Merchant, including the filing of UCC-1 financing statements and other notices or filings. 4.5 Waiver Remedies. No failure on the part of PURCHASER to exercise, and no delay in exercising any right under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right under this Agreement preclude any other or further exercise thereof or the exercise of any other right. Subject to arbitration in Section 5, the remedies provided hereunder are cumulative and not exclusive of any remedies provided by law or equity. 4.6 Binding Governing Law, Venue and Jurisdiction. Effect; This Agreement, Security Agreement and Guaranty of Performance, and any and all addendums attachments, and other documents relating to this Agreement in any way, shall be binding upon and inure to the benefit of Merchant and Guarantor(s) on the one exhibits, hand, and PURCHASER and their respective successors and assigns, except that Merchant and Guarantor(s) shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of PURCHASER which consent may be withheld in PURCHASER'ssole discretion. PURCHASER reserves the rights to p ,. - Initial(s): c_4 ) 77/ IQV7CI - . ... wfitinCD . -. Merchant Guarantor #1 Guarantor #2 3 FILED: NASSAU COUNTY CLERK 06/07/2024 11:56 AM INDEX NO. 609954/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/07/2024 assign this Agreement with or without prior written notice to Merchant. This Agreement, Security Agreement and Guaranty of Performance, and any and all addendums, attachments, exhibits, and other documents relating to this Agreement in any way, shall be governed by and construed in accordance withthe laws of the state of New York and the federal Arbitration Act, without regard to any applicable principals of conflicts of law. Any suit, action or proceeding arising hereunder, or the interpretation, performance or breach hereof, shall, if PURCHASER so elects, be instituted in any NewYork State Supreme Court sitting in the State of NewYork, (the "Acceptable Forums"). All Parties and signatories to this Agreement, including but not limited to, the Merchant and Guarantor(s) agree that the Acceptable Forums are convenient to it, and submit to the jurisdiction of the Acceptable Forums and waive any and all objections to jurisdiction or venue. Should such proceeding be initiated in any other forum, Merchant and Guarantor(s) waives any right to oppose any motion or application madeby PURCHASER to transfer such proceeding to an Acceptable Forum. Memhant and Guarantor(s) hemby agme that the mailing of any Summonsand Complaint in any proceeding commencedby PURCHASER by certified or mgiste ed mail, mturn aceipt equested to the Mailing Addess listed on this Agnement (or any other addresses pmvided in writing to PURCHASER), will constitute valid and lawful service of process against them without the necessity for service by any other means provided by statute or rule of court, and such service shall be deemedcomplete five (5) days after dispatch. 4.7 Survival of Representation. All representations, warranties and covenants herein shall survive the execution and delivery of this Agreement and shall continue in full force until all obligations under this Agreement shall have been satisfied in full and this Agreement shall have terminated. 4.8 Interpetation. All Parties hereto have had the opportunity to review this Agreement with attorney of their own choosing and have relied only on their own attorneys' guidance and advice. No construction determinations shall be madeagainst either Party hereto as drafter. 4.9 Severability. In case any of the provisions in this Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of any other provision contained herein shall not in any way be affected or impaired. 4.10 Agreement. Any provision hereof prohibited by law shall be ineffective only to the extent of such prohibition without invalidating the remaining provisions Entire hereof. This Agreement and the Security Agreement and Guaranty of Performance hereto embodythe entire agreement between Merchant, Guarantor(s) and Corporate Guarantor(s) and PURCHASER and supersede all prior agreements and understandings relating to the subject matter hereof. 4.11 Facsimile & Digital Acceptance. Facsimile signatures and digital signatures hereon shall be deemedacceptable for all purposes. JURYTRIAL WAIVER.THE PARTIES HERETOWAIVE TRIAL BY JURYIN ANY COURTIN ANY SUIT, ACTIONORPROCEEDING 4.12 ONANY MATTER WITH ORIN ANYWAYRELATEDTO THETRANSACTIONS ARISING IN CONNECTION ORTHE ENFORCEMENT HEREOF. THE PARTIES HERETOACKNOWLEDGE THATEACHMAKESTHIS WAIVERKNOWINGLY, WILLINGLYANDVOLUNTARILY ANDWITHOUT DURESS,ANDONLY THEOPPORTUNITY TOCONSIDERTHE RAMIFICATIONS OFTHIS WAIVERWITHTHEIR ATTORNEYS. CLASS ACTIONWAIVER. THE PARTIES HERETOWAIVE ANY RIGHTTO ASSERTANY CLAIMSAGAINSTTHE OTHERPARTYAS A 4.13 REPRESENTATIVEORMEMBER IN ANY CLASSORREPRESENTATIVEACTION, EXCEPTWHERE SUCHWAIVER IS PROHIBITED BY LAWAS AGAINSTPUBLIC POLICY. TO THE EXTENTEITHER PARTYIS PERMITTEDBY LAWORCOURT OF LAWTO PROCEEDWITH A CLASSOR REPRESENTATIVEACTIONAGAINSTTHE OTHER, THE PARTIESHEREBYAGREE THAT: (1) THEPREVAILING PARTYSHALLNOTBE ENTITLED TO RECOVERATTORNEYS' FEES ORCOSTS ASSOCIATED THECLASSOR REPRESENTATIVEACTION (NOT WITHSTANDINGANY WITHPURSUING OTHERPROVISION IN THIS AGREEMENT);AND (2) THE PARTYWHOINITIATES OR PARTICIPATESAS A MEMBEROFTHECLASSWILL NOTSUBMITA CLAIMOROTHERWISE PARTICIPATEIN ANYRECOVERY THROUGH SECURED THECLASSORREPRESENTATIVEACTION. 5.ARBITRATION IF PURCHASER,MERCHANT ORANYGUARANTOR REQUESTS, THEOTHERPARTIES AGREETOARBITRATEALL DISPUTESANDCLAIMS ARISING OUTOFORRELATINGTO THIS AGREEMENT. IF PURCHASER, MERCHANT ORANYGUARANTOR SEEKSTO HAVEA DISPUTE SETTLEDBY ARBITRATION,THATPARTYMUSTFIRST SENDTOALL OTHERPARTIES, BY CERTIFIEDMAIL, A WRITTENNOTICE OF INTENT TO ARBITRATE.IF PURCHASER,MERCHANT ORANYGUARANTOR DONOTREACHANAGREEMENT TORESOLVE THECLAIM WITHIN 30 CALENDAR DAYSAFTERTHE NOTICE IS RECEIVED,PURCHASER,MERCHANT ORANYGUARANTOR MAYCOMMENCE AN ARBITRATIONPROCEEDING WITHTHEAMERICAN ARBITRATIONASSOCIATION("AAA") ORTHEFORUM. PURCHASER WILLPROMPTLY REIMBURSE MERCHANT ORTHEGUARANTOR FORANYARBITRATIONFILING FEE, HOWEVER, IN THEEVENTTHATBOTHMERCHANT ANDTHEGUARANTOR MUSTPAY FILING FEES, PURCHASER WILL ONLYREIMBURSE MERCHANT'S ARBITRATIONFILING FEE AND, EXCEPTAS PROVIDEDIN THE NEXT SENTENCE,PURCHASER WILL PAY ALL ADMINISTRATIONANDARBITRATOR FEES. IF THE ARBITRATOR FINDS THATEITHER THE SUBSTANCEOF THE CLAIM RAISED BY MERCHANT ORTHE GUARANTOR ORTHE RELIEF SOUGHT BYMERCHANT ORTHEGUARANTOR IS IMPROPER ORNOTWARRANTED, AS MEASURED BYTHESTANDARDS SET FORTHIN FEDERAL RULEOFPROCEDURE 11(B), THENPURCHASER WILL PAYTHESEFEESONLYIF REQUIRED BYTHEAAAORFORUMRULES. MERCHANT ANDTHEGUARANTOR AGREETHAT, BYENTERING INTO THIS AGREEMENT,THEYAREWAIVING THERIGHTTOTRIAL BY JURY. PURCHASER,MERCHANT ORANYGUARANTOR MAYBRING CLAIMS AGAINSTANYOTHERPARTYONLYIN THEIR INDIVIDUAL CAPACITY, ANDNOTAS A PLAINTIFF ORCLASSMEMBER IN ANYPURPORTED CLASSORREPRESENTATIVE PROCEEDING.FURTHER, PURCHASER,MERCHANT ANDANYGUARANTOR AGREETHATTHEARBITRATOR MAYNOTCONSOLIDATEPROCEEDINGS FORMORE THANONEPERSON'SCLAIMS,ANDMAYNOTOTHERWISE PRESIDEOVERANYFORM OF A REPRESENTATIVE ORCLASSPROCEEDING, ANDTHATIF THIS SPECIFIC PROVISIONDEALINGWITHTHEPROHIBITIONON CONSOLIDATED,CLASSORAGGREGATED CLAIMS IS FOUNDUNENFORCEABLE, THENTHE ENTIRETY OFTHIS ARBITRATIONCLAUSESHALLBE NULLANDVOID. THIS AGREEMENT TO ARBITRATE IS GOVERNED BY THEFEDERAL ARBITRATIONACTANDNOTBYANY STATELAWREGULATING THEARBITRATIONOF DISPUTES. THIS AGREEMENT IS FINAL ANDBINDING EXCEPT TOTHEEXTENTTHATANAPPEALMAYBE MADEUNDERTHEFAA. ANY ARBITRATION DECISION RENDERED PURSUANT TO THIS ARBITRATION AGREEMENT MAYBE ENFORCED IN ANY COURTWITH JURISDICTION. THETERMS "DISPUTES" AND"CLAIMS" SHALLHAVETHEBROADEST POSSIBLEMEANING. RIGHTTOOPTOUTOFARBITRATION:MERCHANT ANDGUARANTOR(S)MAYOPTOUTOFTHEARBITRATIONCLAUSE ABOVE.TOOPT OUT OF THIS ARBITRATIONCLAUSE,MERCHANT ANDEACHGUARANTOR MUSTSENDPURCHASER A NOTICE THATTHEMERCHANT ANDEACHGUARANTOR DOESNOTWANTTHIS CLAUSETO APPLY TO THIS AGREEMENT. FORANY OPTOUTTO BE EFFECTIVE, MERCHANT ANDEACHGUARANTOR MUSTSENDANOPTOUTNOTICETOTHEFOLLOWING ADDRESS BYREGISTEREDMAIL, WITHIN 14 CALENDAR DAYSAFTERTHEDATEOFTHIS AGREEMENT: BYZFUNDER,LLC HEADOFOPERATIONS, ARBITRATIONOPTOUT, 530 7th Ave Suite 505, NewYork, NY10018. Initial(s): ) Qyl BYZFUNDER werchant Guarantor #1 Guarantor #2 4 FILED: NASSAU COUNTY CLERK 06/07/2024 11:56 AM INDEX NO. 609954/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/07/2024 AGRERMENT SECURTTY ANDGUAR ANTYOFPERFORMANCE CONDmONS THE TERMS, DEFINITIONS, AND INFORMATIONSET FORTH IN THE "REVENUEPURCHASEAGREEMENT",INCLUDINGTHE "MERCHANT AGREEMENT TERMSANDCONDITIONS", AREHEREBY INCORPORATED IN ANDMADEA PARTOFTHIS SECURITYAGREEMENT AND GUARANTY CAPITALIZED TERMS OFPEFORMANCE. NOTDEFINEDIN THIS SECURITY AGREEMENTANDGUARANTY SHALLHAVETHEMEANING SET FORTHIN THEREVENUE PURCHASE AGREEMENT,INCLUDINGTHEMERCHANT AGREEMENTTERMS ANDCONDITIONS. Merchant's Legal Name: Current Electric of WA,LLC. D/B/A: Current Electric of WA Federal ID#: Physical Address: 14111 74th Avenue Court East City· Puyallup State: WA Zip: 98373 ACKNOWLEDGMENT OF SECURITYINTERESTANDSECURITYAGREEMENT. The Future Receipts sold by Merchant to Purchaser pursuant to the Revenue Purchase Agreement shall constitute and shall be construed and treated for all purposes as a true and complete sale, conveying good title to the Future Receipts "accounts" intangibles" free and clear of any liens and encumbrances, from Merchant to Purchaser. To the extent the Future Receipts are or "payment as those terms are defined in the Uniform Commercial Codeas in effect in the state in which the Merchant is located ("UCC") then: (i) the sale of the Future Receipts creates a security interest as defined in the UCC; (ii) this Security Agreement constitutes a "security agreement" under the UCC; and (iii) Purchaser has all the rights of a secured party under the UCCwith respect to such Future Receipts. Merchant further agrees that, with or without an Event of Default, Purchaser may notify account debtors, or other persons obligated on the Future Receipts, or holding the Future Receipts, of Merchant's sale of the Future Receipts and may instruct them to makepayment or otherwise render performance to or for the benefit of Pumhaser. Negative Pledge. Merchant and Guarantor(s) each agrees not to create, incur, assume, or permit to exist, directly or indirectly, any lien on or with respect to the Future Receipts. GUARANTY OFPERFORMANCE Each Guarantor is an owner of Merchant and is involved in the day-to-day business operations of Merchant. Each Guarantor agrees to irrevocably, absolutely and guarantee to Purchaser prompt and complete performance of the following unconditionally obligations of Merchant (the "Guaranteed Obligations"): 1. Merchant's obligation provide its bank statements, and/or month to date banking activity within five (5) business days after a request by Purchaser, 2. Merchant's obligation to not enter into any other agreement for the sale of Future Receipts and/or cash advance agreement or financing or factoring agreement absent Purchaser's advance written consent. 3. Merchant's obligation to deposit all Future Receipts in the Account and to not revoke authorization for Purchaser to debit the Account or change the Processor, add processing terminals, change its financial institution or bank account(s), without Purchaser's prior written consent. 4. Merchant's obligation to not conduct Merchant's businesses under any nameother than as disclosed to the Processor and Purchaser, or change any of its places of business without prior written consent by Purchaser. 5. Merchant's obligation to provide truthful, accurate, and complete information. Guarantor(s) Waivers. Purchaser does not have to notify Guarantor of any of the following events and Guarantor will not be released from its obligations under the Revenue Purchase Agreement and this Personal Guaranty of Performance if it is not notified of: (i) Merchant's failure to timely perform any obligation under the Revenue Purchase Agreement; (ii) any adverse change in Merchant's financial condition or business; (iii) Purchaser's acceptance of the Revenue Purchase Agreement; and (iv) any renewal, extension or other modification of the Revenue Purchase Agreement or Merchant's other obligations to Purchaser. In addition, Purchaser may take any of the following actions without releasing Guarantor from any of its obligations under the Revenue Purchase Agreement and this Guaranty of Performance, (i) renew, extend or otherwise modify the Revenue Purchase Agreement or Merchant's other obligations to Purchaser; and (ii) release Merchant from its obligations to Purchaser. Guarantor shall not seek reimbursement from Merchant or any other guarantor for any amounts paid by it under the Revenue Purchase Agreement or this Personal Guaranty of Performance. Guarantor permanently waives and shall not seek to exercise any of the following rights that it may have against Merchant, or any other guarantor, for any amounts paid by it, or acts performed by it, under the Revenue PuKhase Agreement or this Personal Guaranty of Performance: (i) subrogation; (ii) reimbursement; (iii) performance; (iv) indemnification; or (v) contribution. This Security Agreement and Guaranty of Performance shall be governed by and construed in accordance with the laws of the state of NewYork, without regards to any applicable principals of conflicts of law. Any suit, action or proceeding arising hereunder, or the interpretation, performance or breach hereof, shall, if Purchaser so elects, be instituted in any state Supreme Court sitting in the State of NewYork, (the "Acceptable Forums"). Merchant and Guarantor(s) agree that the Acceptable Forums are convenient to it, and submits to the jurisdiction of the Acceptable Forums and waives any and all objections to jurisdiction or venue. Merchant and Guarantor(s) agree that the Acceptable Forums are convenient to it, and submit to the jurisdiction of the Acceptable Forums and waives any and all objections to jurisdiction or venue. Should such proceeding be initiated in any other forum, Merchant and Guarantor waive any right to oppose any m