Preview
INDEX NO. 518083/2024
TI IGS.C TY,cf M4.
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/02/2024
& PRO VENTURE
P l TA
Today. Tomorrow. Together L MERCHANT AGREEMENT
05/31/2024
Merchant Agreement, dated (together with the Terms and Conditions attached hereto (the “Terms and Conditions”) and the
appendices attached hereto, and as amended, restated or otherwise modified from time to time, this “Agreement”), by and among ProVenture
Capital, LLC, a Connecticut limited liability company (“Company”), the merchant listed below (the “Merchant”) and the individual guarantor(s) si
gnatory hereto (each, a “Guarantor”).
Merchant's Legal Name: M & MUSED CARS, LLC
Alll other names (including any prior names, d/b/as and trade names) used by Merchant at any time: M & MUSED CARS,
Merchant's Chief Executive Office Address:
397 FUNDERBURG DR
City: MONTICELLO State: GA Zip: 31064
Merchant's mailing address is same as address of chief executive office (if not checked, provide mailing address below)
Merchant's Mailing Address:
397 FUNDERBURG DR
Y: MONTICELLO State: GA Zip: 31064
Ci
Type of Entity of Merchant © Corporation © Limited Liability Company © Limited Liability Partnership © Limited Partnership
© Sole Proprietor
Merchant’s Federal EIN.
PURCHASE AND SALE OF FUTURE RECEIVABLES
In consideration of the Purchase Price specified below (the “Purchase Price"), Merchant hereby sells, assigns and transfers to Company (making Company the absolute owner
thereof), a percentage specified as the Purchased Percentage below (the “Purchased Percentage’) of all of Merchant's future accounts, contract rights and other entitlements
arising from or relating to the payment of monies from Merchant's customers’ and/or other third party payors, including all payments made by cash, check, electronic transfer or
other form of monetary payment in the ordinary course of the Merchant's business (the “Receipts’), for the payments due to Merchant as a result of Merchant's sale of goods and/or
services (the “Transactions’) until the Purchased Amount specified below (the “Purchased Amount") has been delivered by or on behalf of Merchant to Company.
Merchant is selling a portion of a future revenue stream to Company at a discount, not borrowing money from Company, therefore there is no interest rate or payment schedule
and no time period during which the Purchased Amount must be collected by Company. The Remittance is a good faith estimate of (a) Purchased Percentage multiplied by (b) the
daily average revenues of Merchant during the previous calendar month divided by (c) the number of Business Days (as defined in the Terms and Conditions) in such calendar
month. Merchant going bankrupt or going out of business, or experiencing a slowdown in business, or a delay in collecting its receivables, in and of itself, does not constitute a
breach of this Agreement. Company is entering this Agreement knowing the risks that Merchant's business may slow down or fail, and Company assumes these risks based on
Merchant's representations, warranties and covenants in this Agreement, which are designed to give Company a reasonable and fair opportunity to receive the benefit of its bargain.
Merchant and each Guarantor are only guaranteeing their performance of the terms of this Agreement, and are not guaranteeing the payment of the Purchased Amount. The initial
Remittance shall be as described above. The Remittance is subject to adjustment as set forth in Section 1.3 of the Terms and Conditions
Company will debit an amount equal to the Remittance specified below (the “Remittance") on each Business Day from only one depositing bank account, which account must be
acceptable to, and pre-approved by, Company (the “Account into which Merchant and Merchant's customers shall remit the Receipts from each Transaction, until such time as
Company receives payment in full of the Purchased Amount. Merchant hereby authorizes Company to ACH debit the Remittance from the Account on a daily basis (other than on
a day that is a legal holiday under the laws of the Connecticut or is a day on which banking institutions in such states are authorized or required by law to close). Company's
payment of the Purchase Price shall be deemed the acceptance and performance by Company of this Agreement, Merchant understands that it is responsible for ensuring that the
Remittance to be debited by Company remains in the Account and will be held responsible for any fees incurred by Company resulting from a rejected ACH attempt or an Event of
Default (as defined in the Terms and Conditions). Company is not responsible for any overdrafts or rejected transactions that may result from Company's ACH debiting the
Remittance under the terms of this Agreement. Notwithstanding anything to the contrary in this Agreement or any other agreement between Company and Merchant, upon the
‘occurrence of an Eventof Default, the Purchased Percentage shall equal 100%. All fees owed to Company by Merchant pursuant to this Agreement are
contained in Appendix A attached hereto. The obligation of Company to fund the Purchase Price hereunder is subject to Company receiving executed counterparts of each of the
MCA Documents (as defined in the Terms and Conditions).
g104,930.00 1311.63
PURCHASE PRICE"; $70:000.00 PURCHASED PERCENTAGE: 30% _PURCHASED AMOUNT: REMITTANCE:
THE MERCHANT AGREEMENT TERMS AND CONDITIONS ATTACHED HERETO AND EACH OF THE APPENDICES ATTACHED
HERETO ARE HEREBY INCORPORATED IN AND MADE A PART OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
MERCHANT roVenture Capital, LLC
(Print Legal Nam BdseRfnea) DAVID RAY MURPHY
By
By:| DAUD RAY MUpPRLY
7873727FA776AAD Name:
Name (Print Legal Name of Signatory): .: DAVID RAY MURPHY Title:
itle (Print Title of Signatory): OWNER.
|GUARANTOR #1: IGUARANTOR #2
\(Print Legal Name of Guarantor #1 DAVID RAY MURPHY \(Print Legal Name of Guarantor #2):
JocuSigned by:
= £4 =
ANY MISREPRESENTATION BY MERCHANT OR ANY GUARANTOR IN CONNECTION WITH THIS AGREEMENT MAY CONSTITUTE
A SEPARATE CAUSE OF ACTION FOR FRAUD OR INTENTIONAL MISREPRESENTATION.
‘ Less any applicable fees as set forth in Appendix A.
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MERCHANT AGREEMENT TERMS AND CONDITIONS automatically be reduced to the maximum rate permitted by applicable law and
Company shall promptly refund to Merchant any interest received by Company in
1 TERMS OF ENROLLMENT IN PROGRAM excess of the maximum lawful rate, it being intended that Merchant not pay or contract,
to pay, and that Company not receive or contract to receive, directly or indirectly in
4A Merchant Deposit Agreement and Processor. Merchant shall (A) execute an any manner whatsoever, interest in excess of that which may be paid by Merchant
agreement acceptable to Company with a bank acceptable to Company (‘Bank’) to under applicable law. As a result thereof, Merchant knowingly and willingly waives the
obtain electronic fund transfer servicesfor the Account, and (B) if applicable, execute defense of usury in any action or proceeding. If, notwithstanding such intent, such
an agreement acceptable to Company with a credit and debit card processor (the transfer is not deemed to constitute a sale, Merchant hereby grants to Company a
Processor’) instructing the Processor to deposit all Receipts into the Account. security interest in all right, title and interest of Merchant in and to the Receipts, which
Merchant shall provide Company and/or its authorized agent(s) with all of the security interest shall secure the payment of the Purchased Amount and all other
information, authorizations and passwords necessary for verifying Merchant's obligations of Merchant under this Agreement. Merchant hereby authorizes Company
receivables, receipts, deposits and withdrawals into and from the Account. Merchant to file any financing statements deemed necessary or advisable by Company to
hereby authorizes Company and/or its agent(s) to withdraw from the Account via ACH perfect or maintain Company's interest in the Receipts.
debit the amounts owed to Company for the receipts as specified herein and to pay 1.10 Power of Attorney. Merchant irrevocably appoints Company as its agent and
such amounts to Company. These authorizations apply not only to the approved attorney-in-fact with full authority to take any action or execute any instrument or
Account but also to any subsequent or alternate account used by the Merchant for document to settle all obligations due to Company from Processor, or in the case of
these deposits, whether pre-approved by Company or not. This additional a violation by Merchant of Section 1 or the occurrence of an Event of Default under
authorization is not a waiver of Company's entitlement to declare this Agreement Section 3, including without limitation (i) to obtain and adjust insurance; (ii) to collect
breached by Merchant as a result of its usage of an account which Company did not monies due or to become due under or in respect of any of the Collateral (as defined
first pre-approve in writing prior to Merchant's usage thereof. The aforementioned in Section 5); (ji) to receive, endorse and collect any checks, notes, drafts,
authorizations shall be irrevocable without the written consent of Company. The instruments, documents or chattel paper in connection with clause (i) or clause (ii)
parties agree that this Agreement shall be considered to be performed in all material above; (iv) to sign Merchant's name on any invoice, bill of lading, or assignment
respects in Connecticut, regardless of Merchant and/or Guarantors address, location, directing customers or account debtors to make payment directly to Company; and
place of business or otherwise. (v) to contact Merchant's banks and financial institutions using Merchant's and
42 Term of Agreement. This Agreement shall remain in full force and effect until Guarantor(s)’ personal information to verify the existence of an account and obtain
the entire Purchased Amount and any other amounts due are received by Company account balances; (vi) to file any claims or take any action or institute any proceeding
as per the terms of this Agreement. which Company may deem necessary for the collection of any of the unpaid
13 Adjustments to the Remittance. If an Event of Default has not occurred, once Purchased Amount from the Collateral, or otherwise to enforce its rights with respect
‘every two (2) calendar weeks after the funding of the Purchase Price to Merchant, to payment of the Purchased Amount. In connection therewith, all costs, expenses
Merchant may give notice to Company to request a change in the Remittance to more and fees, including legal fees, shall be payable by and from Merchant, and Company
accurately reflect the Purchased Percentage of Receipts being collected by Merchant is authorized to use Merchant's funds to pay for same; and (vii) Company shall have
at that time. The amount shall be modified to more closely reflect the Merchant's the right, without waiving any of its rights and remedies and without notice to Merchant
actual receipts by multiplying the Merchant's actual receipts by the Purchased or any Guarantor, to notify any credit card processor of the sale of future payment
Percentage divided by the number of Business Days in the previous two (2) calendar rights and re-direct the remittance of daily settlements to an account of Company's
weeks. Merchant shall provide Company with viewing access to its bank accounts, choosing in order to settle all obligations due to Company under this Agreement.
including the Account, as well as all information reasonably requested by Company 4.14 Protections against Default. The following Protections 1 through 7 may be
to properly calculate the Merchant's Remittance. The adjusted Remittance will invoked by Company immediately and without notice to Merchant in the event:
become the new daily Remittance until any subsequent adjustment. (a) Merchant takes any action to discourage the use of electronic check processing
1.4 Financial Condition. Merchant and Guarantor(s) authorize Company and its that are settled through Processor, or permits any event to occur that could have an
agents to investigate their financial responsibility and history, and will provide to adverse effect on the use, acceptance, or authorization of checks or other payments
Company any authorizations, bank or financial statements, tax returns, etc., as or deposits for the purchase of Merchant's services and products including but not
Company deems necessary in its sole and absolute discretion prior to or at any time limited to direct deposit of any checks into a bank account without scanning such
after execution of this Agreement. A photocopy of this authorization will be deemed checks into the Company electronic check processor; (b) Merchant changes its
as acceptable as an authorization for release of financial and credit information. arrangements with Processor or the Bank in any way that is adverse or unacceptable
Company is authorized to update such information and financial and credit profiles to Company; (c) Merchant changes the electronic check processor through which the
from time to time as it deems appropriate Receipts are settled from Processorto another electronic check processor, or permits
15 Transactional History. Merchant authorizes all of its banks, brokers and any event to occur that could cause diversion of any of Merchant's check or deposit
processors to provide Company with Merchant's banking, brokerage and/or transactions to another processor; (d) Merchant intentionally interrupts the operation
processing history to determine qualification or continuation in this program and for of its business transfers, moves, sells, disposes, or otherwise conveys its business
collections purposes. Merchant shall provide Company with copies of any documents and/or assets without the express prior written consent of Company; (e) Merchant
related to Merchant's card processing activity or financial and banking affairs within takes any action, fails to take any action, or offers any incentive, economic or
five (5) days after a request from Compan otherwise, the result of which will be to induce any customer or customers to pay for
\demnification. Merchant and Guarantor(s) jointly and severally indemnify Merchant's services with any means other than payments, checks or deposits that
and hold harmless Processor, its officers, directors and shareholders against all are settled through Processor; or (f) Merchant fails to provide Company with copies
fosses, damages, claims, liabilities and expenses (including reasonable attorney's of any documents related to Merchant's card processing activity of financial and
fees) incurred by Processor resulting from (a) claims asserted by Company for banking affairs within five (5) days after a request from Company. These protections
monies owed to Company from Merchant and (b) actions taken by Processor in are in addition to any other remedies available to Company at law, in equity or
reliance upon any fraudulent, misleading or deceptive information or instructions otherwise pursuant to this Agreement.
provided by Company. Protection 1. The full uncollected Purchased Amount plus all fees (including
7 No Liability. In no event will Company be liable for any claims asserted by reasonable attorney's fees and expenses) due under this Agreement and the other
Merchant or Guarantors under any legal theory for lost profits, lost revenues, lost MCA Documents (as defined in Section 5) become due and payable in full
business opportunities, exemplary, punitive, special incidental, indirect or immediately.
consequential damages, each of which is waived by each of Merchant and each Protection 2. Company may enforce the provisions of the Limited Guaranty (as
Guarantor. In the event these claims are nonetheless raised, Merchant and defined in Section 5) against any Guarantor.
Guarantor(s) will be jointly liable for all of Company's attorney's fees and expenses Protection 3. Company may enforce its security interest in the Collateral in
resulting therefrom. accordance with the Security Agreement (as defined in Section 5).
8 Reliance on Terms. Section 1.1, 1.5, 1.6, 1.7 and 2.5 of this Agreement are Protection 4. Company may proceed to protect and enforce its right and remedies
agreed to for the benef of Merchant, Company, Processor, and Bank and by lawsuit. In any such lawsuit, if Company recovers a judgment against Merchant,
notwithstanding the fact that neither Processor nor Bank is a party to this Agreement, Merchant shall be liable for all of Company's costs of the lawsuit, including but not
Processor and Bank may rely upon their terms and raise them as a defense in any limited to all reasonable attorneys’ fees and court costs.
action. Protection 5. Merchant shall, upon execution of this Agreement, deliver to Company
1.9 Sale of Receipts (THIS IS NOT A LOAN). Merchant and Company agree that an executed assignment of lease of Merchant's business premises in favor of
the Purchase Price (less the applicable fees agreed to herein) under this Agreement Company. Upon breach of any provision in this paragraph 1.10, Company may
is in exchange for the Purchased Amount, and that such Purchase Price is not exercise its rights under such assignment without notice to Merchant.
intended to be, nor shall it be construed as a loan from Company to Merchant, Protection 6. Company may debit Merchant's depository accounts wherever situated
Merchant agrees that the Purchase Price is in exchange for the Receipts pursuant to by means of ACH debit or facsimile signature on a computer-generated check drawn
this Agreement, and that it equals the fair market value of such Receipts. Company on the Account or otherwise for all sums due to Company.
has purchased and shall own all the Receipts described in this Agreement up to the 1.12 Protection of Information. Merchant and each Guarantor, in respect of himself
full Purchased Amount as the Receipts are created. Payments made to Company in or herself personally, authorizes Company to disclose information concerning
respect to the full amount of the Receipts shall be conditioned upon Merchant's sale Merchant's and such Guarantor's credit standing (including credit bureau reports that
of products and services, and the payment therefore by Merchant's customers. In no Company obtains) and business conduct only to agents, affiliates and credit reporting
‘event shall the aggregate of all amounts or any portion thereof be deemed as interest bureaus. Merchant and such Guarantor each hereby waives to the maximum extent
hereunder, and in the event it is found to be interest despite the parties hereto permitted by law any claim for damages against Company or any of its agents or
specifically representing that it is NOT interest, it shall be found that no sum charged affiliates relating to any (i) investigation undertake; on behalf of Company as
or collected hereunder shall exceed the highest rate permissible at law. In the event permitted by this Agreement or (ii) disclosure information as permitted by this
that a court nonetheless determines that Company has charged or received interest Agreement.
hereunder in excess of the higher applicable rate, the rate in effect hereunder shall
INITIALS
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4.13 Confidentiality. Merchant understands and agrees that the terms and
conditions of the products and services offered by Company, including this
34constitute
Events
an
of Defai The occurrence of any of the following events shall
“Event of Default" hereunder:
Agreement and any other Company documents (collectively, “Confidential (a) Merchant or any Guarantor shall violate any term or covenant in this Agreement
Information") are proprietary and confidential information of Company. Accordingly, or any other MCA Document,
unless disclosure is required by law or court order, Merchant shall not disclose (b) Merchant fails to pay (or cause to be paid) any fees described on Appendix A
Confidential Information of Company to any person other than an attorney, attached hereto when and as required to be paid as described therein;
accountant, financial advisor or employee of Merchant who needs to know such (o) any representation or warranty by Merchant in this Agreementor any other MCA
Confidential Information for the purpose of advising Merchant (" \dvisor"), provided Document shall prove to have been incorrect, false or misleading in any material
such Advisor uses such information solely for the purpose of advising Merchant and respect when made;
first agrees in writing to be bound by the terms of this section. A breach hereof entitles (d) the sending of notice of termination by Merchant or notifying Company verbally
Company to not only damages arid reasonable attorney's fees but also to both a or in writing of its intent to breach this Agreement;
Temporary Restraining Order and a Preliminary Injunction without Bond or Security. (e) the Merchant fails to give Company 24 hours’ advance notice that there will be
1.14 Publicity. Each of Merchant and each Guarantor hereby authorizes Company insufficient funds in the Account such that the ACH of the Remittance amount will not
to use its, his or her name in listings of clients and in advertising and marketing be honored by Bank, and the Merchant fails to supply ail requested documentation
materials. and allow for daily and/or real time monitoring of its bank accounts (including the
1.15 DIB/A’s. Merchant hereby acknowledges and agrees that Company may be Account);
using “doing business as” or “d/b/a” names in connection with various matters relating (f) Merchant shall enter into any financing agreements with any other party
to the transaction between Company and Merchant, including the filing of UCC-1 including but not limited to: loans, merchant cash advances, receivables financing,
financing statements and other notices or filings. factoring, or any other agreement that will increase the total debt or merchant cash
2. REPRESENTATIONS, WARRANTIES AND COVENANTS advances owed by Merchant to any party other than Company.
Merchant represents warrants and covenants that, as of this date and during the term (g) Merchant shall transfer or sell all or substantially all of its assets;
of this Agreement: (h) Merchant shall make or send notice of any intended bulk sale or transfer by
24 Financial _Condition_and_Financial_information. Merchant's and each Merchant;
Guarantor's bank and financial statements, copies of which have been furnished to (i) Merchant shall use multiple depository accounts without the prior written
Company, and future statements which will be furnished hereafter at the discretion of consent of Company;
Company, fairly represent the financial condition of Merchant or such Guarantor, as a) Merchant shall change the Bank Account without the prior written consent of
applicable, as of such dates, and since those dates there has been no material Company;
adverse changes, financial or otherwise, in such condition, operation or ownership of (k) Merchant shall close the Bank Account without the prior written consent of
Merchant. Merchant and Guarantor(s) have a continuing, affirmative obligation to Company;
advise Company of any material adverse change in their financial condition, operation oO Merchant fails to provide timely notice to Company such that in any given
‘or ownership. Company may request statements at any time during the performance calendar month, there are two or more ACH transactions attempted by Company that
of this Agreement and the Merchant and Guarantor(s) shall provide them to Company are rejected by Merchant's bank;
within five (5) Business Days after request from Company. Merchant's or (m) Merchant shall default under any of the terms, covenants and conditions of any
Guarantor(s)' failure to do so is a material breach of this Agreement. other agreement with Company.
22 Governmental Approvals. Merchant is in compliance and shall comply with 3.2 Remedies. In case any Event of Default occurs and is not waived pursuant to
all laws and has valid permits, authorizations and licenses to own, operate and lease Section 4.5. hereof, Company may proceed to protect and enforce its rights or
its properties and to conduct the business in which it is presently engaged and/or will remedies by suit in equity or by action at law, or both, whether for the specific
‘engage in hereafter. performance of any covenant, agreement or other provision contained herein, or to
2.3 Authorization. Merchant, and the person(s) signing this Agreement on behalf enforce the discharge of Merchant's obligations hereunder (including the Limited
‘of Merchant, have full power and authority to incur and perform the obligations under Guaranty) or any other legal or equitable right or remedy. Alll rights, powers and
this Agreement, all of which have been duly authorized. remedies of Company in connection with this Agreement may be exercised at any
2.4 Use of Funds. Merchant agrees that it shall use the Purchase Price for time by Company after the occurrence of an Event of Default, are cumulative and not
business purposes and not for personal, family, or household purposes. Merchant will exclusive, and shall be in addition to any other rights, powers or remedies provided
not, directly or through any of its subsidiaries, engage in the business of extending by law or equity.
credit for the purpose of purchasing or carrying margin stock, and no proceeds of the 3.3 Costs, Merchant shall pay to Company all reasonable costs associated with (a)
Purchase Price will be used to purchase or carry margin stock. an Event or Default, (b) breach by Merchant of the covenants in this Agreement and
25 Electronic Check Processing Agreement. Merchant will not change its the enforcement thereof, and (c) the enforcement of Company's remedies set forth in
Processor, add terminals, change its financial institution or bank account(s) (including this Agreement, including but not limited to court costs and attorneys’ fees.
the Account) or take any other action that could have any adverse effect upon
Merchant's obligations under this Agreement, without Company's prior written
34within Required Notifications. Merchant is required to give Company written notice
24 hours of any filing under Title 11 of the United States Code. Merchant is
consent. Any such changes shall be a material breach of this Agreement. required to give Company seven (7) days’ written notice prior to the closing of any
2.6 Change of Name or Location. Merchant will not conduct Merchant's sale of all or substantially all of the Merchant's assets or stock.
businesses under any name other than as disclosed to the Processor and Company, 4. MISCELLANEOUS,
nor shall Merchant change any of its places of business without prior written consent
by Company.
44of any Modifications; Agreements. No modification, amendment, waiver or consent
provision of this Agreement shall be effective unless the same shall be in
27 Daily Batch Out. Merchant will batch out receipts with the Processor on a daily writing and signed by Company.
basis if applicable. 42 ‘Assignment. Company may assign, transfer or sell its rights to receive the
28 Estoppel Certificate. Merchant will at every and all times, and from time to
time, upon at least one (1) day's prior notice from Company to Merchant, execute,
Purchased Amount or delegate its duties hereunder, either in whole or in part,
including by assigning, transferring or selling a participation in the Purchased Amount.
acknowledge and deliver to Company and/or to any other person, firm or corporation Merchant acknowledges that, if any such assignment is made, persons other than
specified by Company, a statement certifying that this Agreement is unmodified and Company may have the right to exercise rights or remedies against Merchant
in full force and effect (or, if there have been modifications, that the same is in full pursuant to this Agreement. Merchant shall not have, and no Guarantor shall have,
force and effect as modified and stating the modifications) and stating the dates which the right to assign its rights and/or obligations under this Agreement and/or the other
the Purchased Amount or any portion thereof has been repaid. MCA Documents or any interest herein or therein without the prior written consent of
29 No Bankruptcy. As of the date of this Agreement, Merchant is not insolvent Company, which consent may be withheld in Company's sole discretion.
and does not contemplate filing for bankruptey in the next six (6) months and has not
consulted with a bankruptcy attorney or filed any petition for bankruptcy protection
43incur, Negative Pledge. Each of Merchant and each Guarantor agrees not to create,
assume, or permit to exist, directly or indirectly, any additional cash advances,
under Title 11 of the United States Code and there has been no involuntary petition loans, lien or other encumbrance on or with respect to any of the Collateral, as
brought or pending against Merchant. Merchant further represents and warrants that applicable, without written permission of Company.
it does not anticipate filing any such bankruptcy petition and it does not anticipate that 4.4 Notices. All notices, requests, consents, demands and other communications
an involuntary petition will be filed against it. hereunder shall be delivered by certified mall, return receipt requested, to the
2.10 Unencumbered Receipts. Merchant has good, complete, unencumbered and respective parties to this Agreement at the addresses set forth in this Agreement.
marketable title to all Receipts, free and clear of any and all liabilities, liens, claims, Notices to Company shall become effective only upon receipt by Company. Notices
changes, restrictions, conditions, options, rights, mortgages, security interests, to Merchant shall become effective three (3) days after mailing.
equities, pledges and encumbrances of any kind or nature whatsoever or any other 5 Waiver Remedies. No failure on the part of Company to exercise, and no delay
rights or interests that may be inconsistent with the transactions contemplated with, in exercising any right under this Agreement shall operate as a waiver thereof, nor
or adverse to the interests of Company. shall any single or partial exercise of any right under this Agreement preclude any
2.11 Business Purpose. Merchant is a valid business in good standing under the other or further exercise thereof or the’ exercise of any other right. The remedies
laws of the jurisdictions in which it is organized and/or operates. provided hereunder are cumulative and not exclusive of any remedies provided by
2.12 Defaults under Other Contracts. Merchant's execution of, and/or law or equity.
performance under, this Agreement will not cause or create an event of default by
Merchant under any contract with another person or entity.
Dee
=>
2.13 Good Faith. Each of Merchant and each Guarantor hereby affirms that
Merchant is receiving the Purchase Price and selling Company the Purchased
Amount in good faith and will use the Purchase Price funds in accordance with
Section 2.4. INITIALS
3. EVENTS OF DEFAULT AND REMEDIES
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4.6 Binding Effect; Governing Law, Venue and Jurisdiction. This Agreement 4.16 COMMERCIAL PREJUDGMENT REMEDY WAIVER.
Shall be binding upon and inure to the benefit of Merchant, Company and their EACH AND EVERY MERCHANT AND GUARANTOR OF THIS AGREEMENT, AND
respective successors and assigns, except that Merchant shall not have the right to EACH OTHER PERSON OR ENTITY WHO MAY BECOME LIABLE FOR ALL OR
assign its rights hereunder or any interest herein without the prior written consent of ANY PART OF THIS OBLIGATION, HEREBY ACKNOWLEDGE THAT THE
Company, which consent may be withheld in Company's sole discretion. Company TRANSACTION OF WHICH THIS AGREEMENT IS A PART IS A COMMERCIAL
reserves the rights to assign this Agreement pursuant to Section 4.2 with or without TRANSACTION, AND TO THE EXTENT ALLOWED UNDER CONNECTICUT
prior written notice to Merchant. This Agreement shall be governed by and construed GENERAL STATUTES SECTIONS 52-278a TO 52-278m, INCLUSIVE, OR BY
in accordance with the laws of the state of Connecticut, without regards to any OTHER APPLICABLE LAW EACH AND EVERY MERCHANT AND GUARANTOR
applicable principals of conflicts of law. Except required to enforce a security interest OF THIS AGREEMENT HEREBY WAIVE (A) ALL RIGHTS TO NOTICE AND
or otherwise required by applicable law, any suit, action or proceeding arising PRIOR COURT HEARING OR COURT ORDER IN CONNECTION WITH ANY AND
hereunder, or the interpretation, performance or breach hereof, shall, if the Company ALL PREJUDGMENT REMEDIES TO WHICH COMPANY MAY BECOME
so elects, be instituted in any court sitting in Connecticut, to the exclusion of all other ENTITLED BY VIRTUE OF ANY DEFAULT OR PROVISION OF THIS
forums (the “Acceptable Forums"). Merchant agrees that the Acceptable Forums are AGREEMENT OR SECURITY AGREEMENT SECURING THIS AGREEMENTAND.
convenient to it, and each party irrevocably submits to the jurisdiction of the (B) ALL RIGHTS TO REQUEST THAT COMPANY POST A BOND, WITH OR
Acceptable Forums and waives any and all objections to jurisdiction or venue. Should WITHOUT SURETY, TO PROTECT SAID MERCHANT OR GUARANTOR
such proceeding be iiated in any other forum, Merchant waives any right to oppose AGAINST DAMAGES THAT MAY BE CAUSED BY ANY PREJUDGMENT
any motion or application made by Company to transfer such proceeding to an REMEDY SOUGHT OR OBTAINED BY COMPANY BY VIRTUE OF ANY DEFAULT
Acceptable Forum OR PROVISION OF THIS AGREEMENT OR SECURITY AGREEMENT SECURING
4.7 Survival_of Representation, etc. All representations, warranties and THIS AGREEMENT.
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 AS PART OF THE SAID PREJUDGMENT REMEDY WAIVER ABOVE, EACH AND
satisfied in full and this Agreement shall have terminated. EVERY MERCHANT AND GUARANTOR OF THIS AGREEMENT, AND EACH
48 interpretation. All parties hereto have reviewed this Agreement with attorneys OTHER PERSON OR ENTITY WHO MAY BECOME LIABLE FOR ALL OR ANY
of their own choosing and have relied only on their own attorneys’ guidance and PART OF THIS OBLIGATION HEREBY ACKNOWLEDGE, UNDERSTAND,
advice. No construction determinations shall be made against either party hereto as AGREE AND CONSENT THAT THE COMPANY MAY ATTACH OR GARNISH ANY
drafter. AND ALL OF MERCHANT AND GUARANTOR'S MONEY HELD IN ANY BANK
4.9 Severability. In case any of the provisions in this Agreement are found to be ACCOUNT AT A BANKING INSTITUTION IF THAT BANKING INSTITUTION HAS
invalid, illegal or unenforceable in any respect, the validity, legality and enforceability A BRANCHIOFFICE PHYSICALLY LOCATED IN CONNECTICUT AND/OR
of any other provision contained herein shall not in any way be affected or impaired. CONDUCTS OR IS REGISTERED TO CONDUCT BUSINESS IN CONNECTICUT.
Any provision hereof prohibited by law shall be ineffective only to the extent of such
prohibition without invalidating the remaining provisions hereof. IT IS FURTHER AGREED AND ACKNOWLEDGED BY MERCHANT AND
4.10 Entire Agreement. This Agreement and the other MCA Documents embody GUARANTOR THAT COMPANY IS ENTERING INTO THIS AGREEMENT BASED
the entire agreement among Merchant, each Guarantor and Company and supersede UPON THE REMEDIES THAT THEY ARE PROVIDING TO COMPANY
all prior agreements and understandings relating to the subject matter hereof. HEREUNDER BECAUSE OF THE NATURE OF THE RISKS OF THE
4.11, JURY TRIALW, ER. THE PARTIES HERETO WAIVE TRIAL BY JURY IN CONTEMPLATED TRANSACTION AND COMPANY WOULD NOT OTHERWISE
ANY COURT IN ANY SUIT, ACTION OR PROCEEDING ON ANY MATTER HAVE ENTERED INTO THIS AGREEMENT. MERCHANT AND GUARANTOR
ARISING IN CONNECTION WITH OR IN ANY WAY RELATED TO THE WAIVE ANY AND ALL OBJECTIONS TO COMPANY'S RIGHT TO THE EXERCISE.
TRANSACTIONS OR THE ENFORCEMENT HEREOF. THE PARTIES HERETO THE REMEDIES DESCRIBED HEREIN IN THE EVENT OF A DEFAULT BY
ACKNOWLEDGE THAT EACH MAKES THIS WAIVE KNOWINGLY, WILLINGLY MERCHANT OR GUARANTOR UNDER THIS AGREEMENT. HOWEVER,
AND VOLUNTARILY AND WITHOUT DURESS, AND ONLY AFTER EXTENSIVE NOTHING HEREIN SHALL PREVENT MERCHANT OR GUARANTOR FROM
CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER WITH THEIR CHALLENGING THE AMOUNT OF ANY ATTACHMENT OR GARNISHMENT OR
RESPECTIVE ATTORNEYS. THE DEBT OWED TO COMPANY UNDER THIS AGREEMENT.
4.12 CLASS ACTION WAIVER. THE PARTIES HERETO WAIVE ANY RIGHT TO
ASSERT ANY CLAIMS AGAINST THE OTHER PARTY AS A REPRESENTATIVE MERCHANT AND GUARANTOR ALSO HEREBY ACKNOWLEDGE THAT THE
OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE COMPANY INFORMED MERCHANT AND GUARANTOR OF THE REMEDIES
SUCH WAIVER IS PROHIBITED BY LAW AS AGAINST PUBLIC POLICY. TO THE DESCRIBED ABOVE, BEFORE ENTERING INTO THIS AGREEMENT.
EXTENT EITHER PARTY IS PERMITTED BY LAW OR COURT OF LAW TO
PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE 5. DEFINED TERMS
OTHER, THE PARTIES HEREBY AGREE THAT: (1) THE PREVAILING PARTY 5.1. As used herein the following terms have the following meanings:
SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS [ACH Form" means any one or more ACH authorization forms delivered by or on
ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION behalf of Merchant or any Guarantor regarding the Account for the benefit of
(NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT); AND (2) Company
THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS. favit" means any one or more affidavits signed by or on behalf of Merchant or
WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY any Guarantor with respect for the benefitof Company.
SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION. [‘Balance Transfer Form” means any one or more balance transfer forms delivered
4.13 Counterparts & Digital Acceptance. This Agreement and the other MCA by or on behalfof Merchant or any Guarantor regarding the Account for the benefit of
Documents may be executed in multiple counterparts, each of which shall be deemed Company.
an original provided all parties have executed a counterpart of this Agreement, and usiness Day" means any day that is not a Saturday, Sunday or other day that is a
all such counterparts shall together constitute one and the same instrument. Any legal holiday under the laws of the State of Connecticut or is a day on which banking
signature delivered by a party hereto by facsimile transmission, e-mail or other institutions in such state is required by law to be closed.
electronic means will be deemed to be an original signature. [The parties hereto Collateral" has the meaning ascribed to such term in the Security Agreement.
consent and agree that use of a key pad, mouse or other devise to select an item, uaranty" means that certain Limited Guaranty of Performance, dated as of the date
button, icon or similar act or action while using any electronic service in executing this hereof, by and among Company, Merchant and each Guarantor, as may be amended,
Agreement or the other MCA Documents constitutes a valid and enforceable restated or otherwise modified from time to time
signature, acceptance and agreement as if actually signed in writing. Further, the “MCA Documents" means
Preview
INDEX NO. 518083/2024 TI IGS.C TY,cf M4. NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/02/2024 & PRO VENTURE P l TA Today. Tomorrow. Together L MERCHANT AGREEMENT 05/31/2024 Merchant Agreement, dated (together with the Terms and Conditions attached hereto (the “Terms and Conditions”) and the appendices attached hereto, and as amended, restated or otherwise modified from time to time, this “Agreement”), by and among ProVenture Capital, LLC, a Connecticut limited liability company (“Company”), the merchant listed below (the “Merchant”) and the individual guarantor(s) si gnatory hereto (each, a “Guarantor”). Merchant's Legal Name: M & MUSED CARS, LLC Alll other names (including any prior names, d/b/as and trade names) used by Merchant at any time: M & MUSED CARS, Merchant's Chief Executive Office Address: 397 FUNDERBURG DR City: MONTICELLO State: GA Zip: 31064 Merchant's mailing address is same as address of chief executive office (if not checked, provide mailing address below) Merchant's Mailing Address: 397 FUNDERBURG DR Y: MONTICELLO State: GA Zip: 31064 Ci Type of Entity of Merchant © Corporation © Limited Liability Company © Limited Liability Partnership © Limited Partnership © Sole Proprietor Merchant’s Federal EIN. PURCHASE AND SALE OF FUTURE RECEIVABLES In consideration of the Purchase Price specified below (the “Purchase Price"), Merchant hereby sells, assigns and transfers to Company (making Company the absolute owner thereof), a percentage specified as the Purchased Percentage below (the “Purchased Percentage’) of all of Merchant's future accounts, contract rights and other entitlements arising from or relating to the payment of monies from Merchant's customers’ and/or other third party payors, including all payments made by cash, check, electronic transfer or other form of monetary payment in the ordinary course of the Merchant's business (the “Receipts’), for the payments due to Merchant as a result of Merchant's sale of goods and/or services (the “Transactions’) until the Purchased Amount specified below (the “Purchased Amount") has been delivered by or on behalf of Merchant to Company. Merchant is selling a portion of a future revenue stream to Company at a discount, not borrowing money from Company, therefore there is no interest rate or payment schedule and no time period during which the Purchased Amount must be collected by Company. The Remittance is a good faith estimate of (a) Purchased Percentage multiplied by (b) the daily average revenues of Merchant during the previous calendar month divided by (c) the number of Business Days (as defined in the Terms and Conditions) in such calendar month. Merchant going bankrupt or going out of business, or experiencing a slowdown in business, or a delay in collecting its receivables, in and of itself, does not constitute a breach of this Agreement. Company is entering this Agreement knowing the risks that Merchant's business may slow down or fail, and Company assumes these risks based on Merchant's representations, warranties and covenants in this Agreement, which are designed to give Company a reasonable and fair opportunity to receive the benefit of its bargain. Merchant and each Guarantor are only guaranteeing their performance of the terms of this Agreement, and are not guaranteeing the payment of the Purchased Amount. The initial Remittance shall be as described above. The Remittance is subject to adjustment as set forth in Section 1.3 of the Terms and Conditions Company will debit an amount equal to the Remittance specified below (the “Remittance") on each Business Day from only one depositing bank account, which account must be acceptable to, and pre-approved by, Company (the “Account into which Merchant and Merchant's customers shall remit the Receipts from each Transaction, until such time as Company receives payment in full of the Purchased Amount. Merchant hereby authorizes Company to ACH debit the Remittance from the Account on a daily basis (other than on a day that is a legal holiday under the laws of the Connecticut or is a day on which banking institutions in such states are authorized or required by law to close). Company's payment of the Purchase Price shall be deemed the acceptance and performance by Company of this Agreement, Merchant understands that it is responsible for ensuring that the Remittance to be debited by Company remains in the Account and will be held responsible for any fees incurred by Company resulting from a rejected ACH attempt or an Event of Default (as defined in the Terms and Conditions). Company is not responsible for any overdrafts or rejected transactions that may result from Company's ACH debiting the Remittance under the terms of this Agreement. Notwithstanding anything to the contrary in this Agreement or any other agreement between Company and Merchant, upon the ‘occurrence of an Eventof Default, the Purchased Percentage shall equal 100%. All fees owed to Company by Merchant pursuant to this Agreement are contained in Appendix A attached hereto. The obligation of Company to fund the Purchase Price hereunder is subject to Company receiving executed counterparts of each of the MCA Documents (as defined in the Terms and Conditions). g104,930.00 1311.63 PURCHASE PRICE"; $70:000.00 PURCHASED PERCENTAGE: 30% _PURCHASED AMOUNT: REMITTANCE: THE MERCHANT AGREEMENT TERMS AND CONDITIONS ATTACHED HERETO AND EACH OF THE APPENDICES ATTACHED HERETO ARE HEREBY INCORPORATED IN AND MADE A PART OF THIS AGREEMENT. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written. MERCHANT roVenture Capital, LLC (Print Legal Nam BdseRfnea) DAVID RAY MURPHY By By:| DAUD RAY MUpPRLY 7873727FA776AAD Name: Name (Print Legal Name of Signatory): .: DAVID RAY MURPHY Title: itle (Print Title of Signatory): OWNER. |GUARANTOR #1: IGUARANTOR #2 \(Print Legal Name of Guarantor #1 DAVID RAY MURPHY \(Print Legal Name of Guarantor #2): JocuSigned by: = £4 = ANY MISREPRESENTATION BY MERCHANT OR ANY GUARANTOR IN CONNECTION WITH THIS AGREEMENT MAY CONSTITUTE A SEPARATE CAUSE OF ACTION FOR FRAUD OR INTENTIONAL MISREPRESENTATION. ‘ Less any applicable fees as set forth in Appendix A. Kin INDEX NO. 518083/2024 IGS.af Vic Rela KDA 12/2024 02:55 PM NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/02/2024 MERCHANT AGREEMENT TERMS AND CONDITIONS automatically be reduced to the maximum rate permitted by applicable law and Company shall promptly refund to Merchant any interest received by Company in 1 TERMS OF ENROLLMENT IN PROGRAM excess of the maximum lawful rate, it being intended that Merchant not pay or contract, to pay, and that Company not receive or contract to receive, directly or indirectly in 4A Merchant Deposit Agreement and Processor. Merchant shall (A) execute an any manner whatsoever, interest in excess of that which may be paid by Merchant agreement acceptable to Company with a bank acceptable to Company (‘Bank’) to under applicable law. As a result thereof, Merchant knowingly and willingly waives the obtain electronic fund transfer servicesfor the Account, and (B) if applicable, execute defense of usury in any action or proceeding. If, notwithstanding such intent, such an agreement acceptable to Company with a credit and debit card processor (the transfer is not deemed to constitute a sale, Merchant hereby grants to Company a Processor’) instructing the Processor to deposit all Receipts into the Account. security interest in all right, title and interest of Merchant in and to the Receipts, which Merchant shall provide Company and/or its authorized agent(s) with all of the security interest shall secure the payment of the Purchased Amount and all other information, authorizations and passwords necessary for verifying Merchant's obligations of Merchant under this Agreement. Merchant hereby authorizes Company receivables, receipts, deposits and withdrawals into and from the Account. Merchant to file any financing statements deemed necessary or advisable by Company to hereby authorizes Company and/or its agent(s) to withdraw from the Account via ACH perfect or maintain Company's interest in the Receipts. debit the amounts owed to Company for the receipts as specified herein and to pay 1.10 Power of Attorney. Merchant irrevocably appoints Company as its agent and such amounts to Company. These authorizations apply not only to the approved attorney-in-fact with full authority to take any action or execute any instrument or Account but also to any subsequent or alternate account used by the Merchant for document to settle all obligations due to Company from Processor, or in the case of these deposits, whether pre-approved by Company or not. This additional a violation by Merchant of Section 1 or the occurrence of an Event of Default under authorization is not a waiver of Company's entitlement to declare this Agreement Section 3, including without limitation (i) to obtain and adjust insurance; (ii) to collect breached by Merchant as a result of its usage of an account which Company did not monies due or to become due under or in respect of any of the Collateral (as defined first pre-approve in writing prior to Merchant's usage thereof. The aforementioned in Section 5); (ji) to receive, endorse and collect any checks, notes, drafts, authorizations shall be irrevocable without the written consent of Company. The instruments, documents or chattel paper in connection with clause (i) or clause (ii) parties agree that this Agreement shall be considered to be performed in all material above; (iv) to sign Merchant's name on any invoice, bill of lading, or assignment respects in Connecticut, regardless of Merchant and/or Guarantors address, location, directing customers or account debtors to make payment directly to Company; and place of business or otherwise. (v) to contact Merchant's banks and financial institutions using Merchant's and 42 Term of Agreement. This Agreement shall remain in full force and effect until Guarantor(s)’ personal information to verify the existence of an account and obtain the entire Purchased Amount and any other amounts due are received by Company account balances; (vi) to file any claims or take any action or institute any proceeding as per the terms of this Agreement. which Company may deem necessary for the collection of any of the unpaid 13 Adjustments to the Remittance. If an Event of Default has not occurred, once Purchased Amount from the Collateral, or otherwise to enforce its rights with respect ‘every two (2) calendar weeks after the funding of the Purchase Price to Merchant, to payment of the Purchased Amount. In connection therewith, all costs, expenses Merchant may give notice to Company to request a change in the Remittance to more and fees, including legal fees, shall be payable by and from Merchant, and Company accurately reflect the Purchased Percentage of Receipts being collected by Merchant is authorized to use Merchant's funds to pay for same; and (vii) Company shall have at that time. The amount shall be modified to more closely reflect the Merchant's the right, without waiving any of its rights and remedies and without notice to Merchant actual receipts by multiplying the Merchant's actual receipts by the Purchased or any Guarantor, to notify any credit card processor of the sale of future payment Percentage divided by the number of Business Days in the previous two (2) calendar rights and re-direct the remittance of daily settlements to an account of Company's weeks. Merchant shall provide Company with viewing access to its bank accounts, choosing in order to settle all obligations due to Company under this Agreement. including the Account, as well as all information reasonably requested by Company 4.14 Protections against Default. The following Protections 1 through 7 may be to properly calculate the Merchant's Remittance. The adjusted Remittance will invoked by Company immediately and without notice to Merchant in the event: become the new daily Remittance until any subsequent adjustment. (a) Merchant takes any action to discourage the use of electronic check processing 1.4 Financial Condition. Merchant and Guarantor(s) authorize Company and its that are settled through Processor, or permits any event to occur that could have an agents to investigate their financial responsibility and history, and will provide to adverse effect on the use, acceptance, or authorization of checks or other payments Company any authorizations, bank or financial statements, tax returns, etc., as or deposits for the purchase of Merchant's services and products including but not Company deems necessary in its sole and absolute discretion prior to or at any time limited to direct deposit of any checks into a bank account without scanning such after execution of this Agreement. A photocopy of this authorization will be deemed checks into the Company electronic check processor; (b) Merchant changes its as acceptable as an authorization for release of financial and credit information. arrangements with Processor or the Bank in any way that is adverse or unacceptable Company is authorized to update such information and financial and credit profiles to Company; (c) Merchant changes the electronic check processor through which the from time to time as it deems appropriate Receipts are settled from Processorto another electronic check processor, or permits 15 Transactional History. Merchant authorizes all of its banks, brokers and any event to occur that could cause diversion of any of Merchant's check or deposit processors to provide Company with Merchant's banking, brokerage and/or transactions to another processor; (d) Merchant intentionally interrupts the operation processing history to determine qualification or continuation in this program and for of its business transfers, moves, sells, disposes, or otherwise conveys its business collections purposes. Merchant shall provide Company with copies of any documents and/or assets without the express prior written consent of Company; (e) Merchant related to Merchant's card processing activity or financial and banking affairs within takes any action, fails to take any action, or offers any incentive, economic or five (5) days after a request from Compan otherwise, the result of which will be to induce any customer or customers to pay for \demnification. Merchant and Guarantor(s) jointly and severally indemnify Merchant's services with any means other than payments, checks or deposits that and hold harmless Processor, its officers, directors and shareholders against all are settled through Processor; or (f) Merchant fails to provide Company with copies fosses, damages, claims, liabilities and expenses (including reasonable attorney's of any documents related to Merchant's card processing activity of financial and fees) incurred by Processor resulting from (a) claims asserted by Company for banking affairs within five (5) days after a request from Company. These protections monies owed to Company from Merchant and (b) actions taken by Processor in are in addition to any other remedies available to Company at law, in equity or reliance upon any fraudulent, misleading or deceptive information or instructions otherwise pursuant to this Agreement. provided by Company. Protection 1. The full uncollected Purchased Amount plus all fees (including 7 No Liability. In no event will Company be liable for any claims asserted by reasonable attorney's fees and expenses) due under this Agreement and the other Merchant or Guarantors under any legal theory for lost profits, lost revenues, lost MCA Documents (as defined in Section 5) become due and payable in full business opportunities, exemplary, punitive, special incidental, indirect or immediately. consequential damages, each of which is waived by each of Merchant and each Protection 2. Company may enforce the provisions of the Limited Guaranty (as Guarantor. In the event these claims are nonetheless raised, Merchant and defined in Section 5) against any Guarantor. Guarantor(s) will be jointly liable for all of Company's attorney's fees and expenses Protection 3. Company may enforce its security interest in the Collateral in resulting therefrom. accordance with the Security Agreement (as defined in Section 5). 8 Reliance on Terms. Section 1.1, 1.5, 1.6, 1.7 and 2.5 of this Agreement are Protection 4. Company may proceed to protect and enforce its right and remedies agreed to for the benef of Merchant, Company, Processor, and Bank and by lawsuit. In any such lawsuit, if Company recovers a judgment against Merchant, notwithstanding the fact that neither Processor nor Bank is a party to this Agreement, Merchant shall be liable for all of Company's costs of the lawsuit, including but not Processor and Bank may rely upon their terms and raise them as a defense in any limited to all reasonable attorneys’ fees and court costs. action. Protection 5. Merchant shall, upon execution of this Agreement, deliver to Company 1.9 Sale of Receipts (THIS IS NOT A LOAN). Merchant and Company agree that an executed assignment of lease of Merchant's business premises in favor of the Purchase Price (less the applicable fees agreed to herein) under this Agreement Company. Upon breach of any provision in this paragraph 1.10, Company may is in exchange for the Purchased Amount, and that such Purchase Price is not exercise its rights under such assignment without notice to Merchant. intended to be, nor shall it be construed as a loan from Company to Merchant, Protection 6. Company may debit Merchant's depository accounts wherever situated Merchant agrees that the Purchase Price is in exchange for the Receipts pursuant to by means of ACH debit or facsimile signature on a computer-generated check drawn this Agreement, and that it equals the fair market value of such Receipts. Company on the Account or otherwise for all sums due to Company. has purchased and shall own all the Receipts described in this Agreement up to the 1.12 Protection of Information. Merchant and each Guarantor, in respect of himself full Purchased Amount as the Receipts are created. Payments made to Company in or herself personally, authorizes Company to disclose information concerning respect to the full amount of the Receipts shall be conditioned upon Merchant's sale Merchant's and such Guarantor's credit standing (including credit bureau reports that of products and services, and the payment therefore by Merchant's customers. In no Company obtains) and business conduct only to agents, affiliates and credit reporting ‘event shall the aggregate of all amounts or any portion thereof be deemed as interest bureaus. Merchant and such Guarantor each hereby waives to the maximum extent hereunder, and in the event it is found to be interest despite the parties hereto permitted by law any claim for damages against Company or any of its agents or specifically representing that it is NOT interest, it shall be found that no sum charged affiliates relating to any (i) investigation undertake; on behalf of Company as or collected hereunder shall exceed the highest rate permissible at law. In the event permitted by this Agreement or (ii) disclosure information as permitted by this that a court nonetheless determines that Company has charged or received interest Agreement. hereunder in excess of the higher applicable rate, the rate in effect hereunder shall INITIALS Kin INDEX NO. 518083/2024 IGS.af Vic Rela KDA 12/2024 02:55 PM NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/02/2024 4.13 Confidentiality. Merchant understands and agrees that the terms and conditions of the products and services offered by Company, including this 34constitute Events an of Defai The occurrence of any of the following events shall “Event of Default" hereunder: Agreement and any other Company documents (collectively, “Confidential (a) Merchant or any Guarantor shall violate any term or covenant in this Agreement Information") are proprietary and confidential information of Company. Accordingly, or any other MCA Document, unless disclosure is required by law or court order, Merchant shall not disclose (b) Merchant fails to pay (or cause to be paid) any fees described on Appendix A Confidential Information of Company to any person other than an attorney, attached hereto when and as required to be paid as described therein; accountant, financial advisor or employee of Merchant who needs to know such (o) any representation or warranty by Merchant in this Agreementor any other MCA Confidential Information for the purpose of advising Merchant (" \dvisor"), provided Document shall prove to have been incorrect, false or misleading in any material such Advisor uses such information solely for the purpose of advising Merchant and respect when made; first agrees in writing to be bound by the terms of this section. A breach hereof entitles (d) the sending of notice of termination by Merchant or notifying Company verbally Company to not only damages arid reasonable attorney's fees but also to both a or in writing of its intent to breach this Agreement; Temporary Restraining Order and a Preliminary Injunction without Bond or Security. (e) the Merchant fails to give Company 24 hours’ advance notice that there will be 1.14 Publicity. Each of Merchant and each Guarantor hereby authorizes Company insufficient funds in the Account such that the ACH of the Remittance amount will not to use its, his or her name in listings of clients and in advertising and marketing be honored by Bank, and the Merchant fails to supply ail requested documentation materials. and allow for daily and/or real time monitoring of its bank accounts (including the 1.15 DIB/A’s. Merchant hereby acknowledges and agrees that Company may be Account); using “doing business as” or “d/b/a” names in connection with various matters relating (f) Merchant shall enter into any financing agreements with any other party to the transaction between Company and Merchant, including the filing of UCC-1 including but not limited to: loans, merchant cash advances, receivables financing, financing statements and other notices or filings. factoring, or any other agreement that will increase the total debt or merchant cash 2. REPRESENTATIONS, WARRANTIES AND COVENANTS advances owed by Merchant to any party other than Company. Merchant represents warrants and covenants that, as of this date and during the term (g) Merchant shall transfer or sell all or substantially all of its assets; of this Agreement: (h) Merchant shall make or send notice of any intended bulk sale or transfer by 24 Financial _Condition_and_Financial_information. Merchant's and each Merchant; Guarantor's bank and financial statements, copies of which have been furnished to (i) Merchant shall use multiple depository accounts without the prior written Company, and future statements which will be furnished hereafter at the discretion of consent of Company; Company, fairly represent the financial condition of Merchant or such Guarantor, as a) Merchant shall change the Bank Account without the prior written consent of applicable, as of such dates, and since those dates there has been no material Company; adverse changes, financial or otherwise, in such condition, operation or ownership of (k) Merchant shall close the Bank Account without the prior written consent of Merchant. Merchant and Guarantor(s) have a continuing, affirmative obligation to Company; advise Company of any material adverse change in their financial condition, operation oO Merchant fails to provide timely notice to Company such that in any given ‘or ownership. Company may request statements at any time during the performance calendar month, there are two or more ACH transactions attempted by Company that of this Agreement and the Merchant and Guarantor(s) shall provide them to Company are rejected by Merchant's bank; within five (5) Business Days after request from Company. Merchant's or (m) Merchant shall default under any of the terms, covenants and conditions of any Guarantor(s)' failure to do so is a material breach of this Agreement. other agreement with Company. 22 Governmental Approvals. Merchant is in compliance and shall comply with 3.2 Remedies. In case any Event of Default occurs and is not waived pursuant to all laws and has valid permits, authorizations and licenses to own, operate and lease Section 4.5. hereof, Company may proceed to protect and enforce its rights or its properties and to conduct the business in which it is presently engaged and/or will remedies by suit in equity or by action at law, or both, whether for the specific ‘engage in hereafter. performance of any covenant, agreement or other provision contained herein, or to 2.3 Authorization. Merchant, and the person(s) signing this Agreement on behalf enforce the discharge of Merchant's obligations hereunder (including the Limited ‘of Merchant, have full power and authority to incur and perform the obligations under Guaranty) or any other legal or equitable right or remedy. Alll rights, powers and this Agreement, all of which have been duly authorized. remedies of Company in connection with this Agreement may be exercised at any 2.4 Use of Funds. Merchant agrees that it shall use the Purchase Price for time by Company after the occurrence of an Event of Default, are cumulative and not business purposes and not for personal, family, or household purposes. Merchant will exclusive, and shall be in addition to any other rights, powers or remedies provided not, directly or through any of its subsidiaries, engage in the business of extending by law or equity. credit for the purpose of purchasing or carrying margin stock, and no proceeds of the 3.3 Costs, Merchant shall pay to Company all reasonable costs associated with (a) Purchase Price will be used to purchase or carry margin stock. an Event or Default, (b) breach by Merchant of the covenants in this Agreement and 25 Electronic Check Processing Agreement. Merchant will not change its the enforcement thereof, and (c) the enforcement of Company's remedies set forth in Processor, add terminals, change its financial institution or bank account(s) (including this Agreement, including but not limited to court costs and attorneys’ fees. the Account) or take any other action that could have any adverse effect upon Merchant's obligations under this Agreement, without Company's prior written 34within Required Notifications. Merchant is required to give Company written notice 24 hours of any filing under Title 11 of the United States Code. Merchant is consent. Any such changes shall be a material breach of this Agreement. required to give Company seven (7) days’ written notice prior to the closing of any 2.6 Change of Name or Location. Merchant will not conduct Merchant's sale of all or substantially all of the Merchant's assets or stock. businesses under any name other than as disclosed to the Processor and Company, 4. MISCELLANEOUS, nor shall Merchant change any of its places of business without prior written consent by Company. 44of any Modifications; Agreements. No modification, amendment, waiver or consent provision of this Agreement shall be effective unless the same shall be in 27 Daily Batch Out. Merchant will batch out receipts with the Processor on a daily writing and signed by Company. basis if applicable. 42 ‘Assignment. Company may assign, transfer or sell its rights to receive the 28 Estoppel Certificate. Merchant will at every and all times, and from time to time, upon at least one (1) day's prior notice from Company to Merchant, execute, Purchased Amount or delegate its duties hereunder, either in whole or in part, including by assigning, transferring or selling a participation in the Purchased Amount. acknowledge and deliver to Company and/or to any other person, firm or corporation Merchant acknowledges that, if any such assignment is made, persons other than specified by Company, a statement certifying that this Agreement is unmodified and Company may have the right to exercise rights or remedies against Merchant in full force and effect (or, if there have been modifications, that the same is in full pursuant to this Agreement. Merchant shall not have, and no Guarantor shall have, force and effect as modified and stating the modifications) and stating the dates which the right to assign its rights and/or obligations under this Agreement and/or the other the Purchased Amount or any portion thereof has been repaid. MCA Documents or any interest herein or therein without the prior written consent of 29 No Bankruptcy. As of the date of this Agreement, Merchant is not insolvent Company, which consent may be withheld in Company's sole discretion. and does not contemplate filing for bankruptey in the next six (6) months and has not consulted with a bankruptcy attorney or filed any petition for bankruptcy protection 43incur, Negative Pledge. Each of Merchant and each Guarantor agrees not to create, assume, or permit to exist, directly or indirectly, any additional cash advances, under Title 11 of the United States Code and there has been no involuntary petition loans, lien or other encumbrance on or with respect to any of the Collateral, as brought or pending against Merchant. Merchant further represents and warrants that applicable, without written permission of Company. it does not anticipate filing any such bankruptcy petition and it does not anticipate that 4.4 Notices. All notices, requests, consents, demands and other communications an involuntary petition will be filed against it. hereunder shall be delivered by certified mall, return receipt requested, to the 2.10 Unencumbered Receipts. Merchant has good, complete, unencumbered and respective parties to this Agreement at the addresses set forth in this Agreement. marketable title to all Receipts, free and clear of any and all liabilities, liens, claims, Notices to Company shall become effective only upon receipt by Company. Notices changes, restrictions, conditions, options, rights, mortgages, security interests, to Merchant shall become effective three (3) days after mailing. equities, pledges and encumbrances of any kind or nature whatsoever or any other 5 Waiver Remedies. No failure on the part of Company to exercise, and no delay rights or interests that may be inconsistent with the transactions contemplated with, in exercising any right under this Agreement shall operate as a waiver thereof, nor or adverse to the interests of Company. shall any single or partial exercise of any right under this Agreement preclude any 2.11 Business Purpose. Merchant is a valid business in good standing under the other or further exercise thereof or the’ exercise of any other right. The remedies laws of the jurisdictions in which it is organized and/or operates. provided hereunder are cumulative and not exclusive of any remedies provided by 2.12 Defaults under Other Contracts. Merchant's execution of, and/or law or equity. performance under, this Agreement will not cause or create an event of default by Merchant under any contract with another person or entity. Dee => 2.13 Good Faith. Each of Merchant and each Guarantor hereby affirms that Merchant is receiving the Purchase Price and selling Company the Purchased Amount in good faith and will use the Purchase Price funds in accordance with Section 2.4. INITIALS 3. EVENTS OF DEFAULT AND REMEDIES INDEX NO. 518083/2024 KINGS. Vic Kelake hy RLS 12/2024 02:55 PM) NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/02/2024 4.6 Binding Effect; Governing Law, Venue and Jurisdiction. This Agreement 4.16 COMMERCIAL PREJUDGMENT REMEDY WAIVER. Shall be binding upon and inure to the benefit of Merchant, Company and their EACH AND EVERY MERCHANT AND GUARANTOR OF THIS AGREEMENT, AND respective successors and assigns, except that Merchant shall not have the right to EACH OTHER PERSON OR ENTITY WHO MAY BECOME LIABLE FOR ALL OR assign its rights hereunder or any interest herein without the prior written consent of ANY PART OF THIS OBLIGATION, HEREBY ACKNOWLEDGE THAT THE Company, which consent may be withheld in Company's sole discretion. Company TRANSACTION OF WHICH THIS AGREEMENT IS A PART IS A COMMERCIAL reserves the rights to assign this Agreement pursuant to Section 4.2 with or without TRANSACTION, AND TO THE EXTENT ALLOWED UNDER CONNECTICUT prior written notice to Merchant. This Agreement shall be governed by and construed GENERAL STATUTES SECTIONS 52-278a TO 52-278m, INCLUSIVE, OR BY in accordance with the laws of the state of Connecticut, without regards to any OTHER APPLICABLE LAW EACH AND EVERY MERCHANT AND GUARANTOR applicable principals of conflicts of law. Except required to enforce a security interest OF THIS AGREEMENT HEREBY WAIVE (A) ALL RIGHTS TO NOTICE AND or otherwise required by applicable law, any suit, action or proceeding arising PRIOR COURT HEARING OR COURT ORDER IN CONNECTION WITH ANY AND hereunder, or the interpretation, performance or breach hereof, shall, if the Company ALL PREJUDGMENT REMEDIES TO WHICH COMPANY MAY BECOME so elects, be instituted in any court sitting in Connecticut, to the exclusion of all other ENTITLED BY VIRTUE OF ANY DEFAULT OR PROVISION OF THIS forums (the “Acceptable Forums"). Merchant agrees that the Acceptable Forums are AGREEMENT OR SECURITY AGREEMENT SECURING THIS AGREEMENTAND. convenient to it, and each party irrevocably submits to the jurisdiction of the (B) ALL RIGHTS TO REQUEST THAT COMPANY POST A BOND, WITH OR Acceptable Forums and waives any and all objections to jurisdiction or venue. Should WITHOUT SURETY, TO PROTECT SAID MERCHANT OR GUARANTOR such proceeding be iiated in any other forum, Merchant waives any right to oppose AGAINST DAMAGES THAT MAY BE CAUSED BY ANY PREJUDGMENT any motion or application made by Company to transfer such proceeding to an REMEDY SOUGHT OR OBTAINED BY COMPANY BY VIRTUE OF ANY DEFAULT Acceptable Forum OR PROVISION OF THIS AGREEMENT OR SECURITY AGREEMENT SECURING 4.7 Survival_of Representation, etc. All representations, warranties and THIS AGREEMENT. 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 AS PART OF THE SAID PREJUDGMENT REMEDY WAIVER ABOVE, EACH AND satisfied in full and this Agreement shall have terminated. EVERY MERCHANT AND GUARANTOR OF THIS AGREEMENT, AND EACH 48 interpretation. All parties hereto have reviewed this Agreement with attorneys OTHER PERSON OR ENTITY WHO MAY BECOME LIABLE FOR ALL OR ANY of their own choosing and have relied only on their own attorneys’ guidance and PART OF THIS OBLIGATION HEREBY ACKNOWLEDGE, UNDERSTAND, advice. No construction determinations shall be made against either party hereto as AGREE AND CONSENT THAT THE COMPANY MAY ATTACH OR GARNISH ANY drafter. AND ALL OF MERCHANT AND GUARANTOR'S MONEY HELD IN ANY BANK 4.9 Severability. In case any of the provisions in this Agreement are found to be ACCOUNT AT A BANKING INSTITUTION IF THAT BANKING INSTITUTION HAS invalid, illegal or unenforceable in any respect, the validity, legality and enforceability A BRANCHIOFFICE PHYSICALLY LOCATED IN CONNECTICUT AND/OR of any other provision contained herein shall not in any way be affected or impaired. CONDUCTS OR IS REGISTERED TO CONDUCT BUSINESS IN CONNECTICUT. Any provision hereof prohibited by law shall be ineffective only to the extent of such prohibition without invalidating the remaining provisions hereof. IT IS FURTHER AGREED AND ACKNOWLEDGED BY MERCHANT AND 4.10 Entire Agreement. This Agreement and the other MCA Documents embody GUARANTOR THAT COMPANY IS ENTERING INTO THIS AGREEMENT BASED the entire agreement among Merchant, each Guarantor and Company and supersede UPON THE REMEDIES THAT THEY ARE PROVIDING TO COMPANY all prior agreements and understandings relating to the subject matter hereof. HEREUNDER BECAUSE OF THE NATURE OF THE RISKS OF THE 4.11, JURY TRIALW, ER. THE PARTIES HERETO WAIVE TRIAL BY JURY IN CONTEMPLATED TRANSACTION AND COMPANY WOULD NOT OTHERWISE ANY COURT IN ANY SUIT, ACTION OR PROCEEDING ON ANY MATTER HAVE ENTERED INTO THIS AGREEMENT. MERCHANT AND GUARANTOR ARISING IN CONNECTION WITH OR IN ANY WAY RELATED TO THE WAIVE ANY AND ALL OBJECTIONS TO COMPANY'S RIGHT TO THE EXERCISE. TRANSACTIONS OR THE ENFORCEMENT HEREOF. THE PARTIES HERETO THE REMEDIES DESCRIBED HEREIN IN THE EVENT OF A DEFAULT BY ACKNOWLEDGE THAT EACH MAKES THIS WAIVE KNOWINGLY, WILLINGLY MERCHANT OR GUARANTOR UNDER THIS AGREEMENT. HOWEVER, AND VOLUNTARILY AND WITHOUT DURESS, AND ONLY AFTER EXTENSIVE NOTHING HEREIN SHALL PREVENT MERCHANT OR GUARANTOR FROM CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER WITH THEIR CHALLENGING THE AMOUNT OF ANY ATTACHMENT OR GARNISHMENT OR RESPECTIVE ATTORNEYS. THE DEBT OWED TO COMPANY UNDER THIS AGREEMENT. 4.12 CLASS ACTION WAIVER. THE PARTIES HERETO WAIVE ANY RIGHT TO ASSERT ANY CLAIMS AGAINST THE OTHER PARTY AS A REPRESENTATIVE MERCHANT AND GUARANTOR ALSO HEREBY ACKNOWLEDGE THAT THE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE COMPANY INFORMED MERCHANT AND GUARANTOR OF THE REMEDIES SUCH WAIVER IS PROHIBITED BY LAW AS AGAINST PUBLIC POLICY. TO THE DESCRIBED ABOVE, BEFORE ENTERING INTO THIS AGREEMENT. EXTENT EITHER PARTY IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE 5. DEFINED TERMS OTHER, THE PARTIES HEREBY AGREE THAT: (1) THE PREVAILING PARTY 5.1. As used herein the following terms have the following meanings: SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS [ACH Form" means any one or more ACH authorization forms delivered by or on ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION behalf of Merchant or any Guarantor regarding the Account for the benefit of (NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT); AND (2) Company THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS. favit" means any one or more affidavits signed by or on behalf of Merchant or WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY any Guarantor with respect for the benefitof Company. SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION. [‘Balance Transfer Form” means any one or more balance transfer forms delivered 4.13 Counterparts & Digital Acceptance. This Agreement and the other MCA by or on behalfof Merchant or any Guarantor regarding the Account for the benefit of Documents may be executed in multiple counterparts, each of which shall be deemed Company. an original provided all parties have executed a counterpart of this Agreement, and usiness Day" means any day that is not a Saturday, Sunday or other day that is a all such counterparts shall together constitute one and the same instrument. Any legal holiday under the laws of the State of Connecticut or is a day on which banking signature delivered by a party hereto by facsimile transmission, e-mail or other institutions in such state is required by law to be closed. electronic means will be deemed to be an original signature. [The parties hereto Collateral" has the meaning ascribed to such term in the Security Agreement. consent and agree that use of a key pad, mouse or other devise to select an item, uaranty" means that certain Limited Guaranty of Performance, dated as of the date button, icon or similar act or action while using any electronic service in executing this hereof, by and among Company, Merchant and each Guarantor, as may be amended, Agreement or the other MCA Documents constitutes a valid and enforceable restated or otherwise modified from time to time signature, acceptance and agreement as if actually signed in writing. Further, the “MCA Documents" means