Preview
FILED: MONROE COUNTY CLERK 07/02/2024 10:09 AM INDEX NO. E2024010866
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/02/2024
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt #
Book Page
Return To: No. Pages: 11
MICHAEL KEITH JOHNSON
One Whitehall Street Instrument: EXHIBIT(S)
Suite 200
New York, NY 10004 Control #: Unrecorded #9881071
Index #: Unassigned-1614755
Date:
Apollo Funding Co. Time:
JODY CLARK ROOKSTOOL,
RSJ FAMILY HOLDINGS , LLC
MEAL DELIVERY PARTNERSHIP
QUICKFRESH PARTNERS
QUICKFRESH MEAL DELIVERY
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
FILED: MONROE COUNTY CLERK 07/02/2024 10:09 AM INDEX NO. E2024010866
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/02/2024
EXHIBIT A
FILED: MONROE COUNTY CLERK 07/02/2024 10:09 AM INDEX NO. E2024010866
DocuSign Envelope ID:
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/02/2024
REVENUE ACREEMENT
PURCHASE
This Revenue Purchase Agreement and Secunty Agreement and Guaranty of Perfonnance ("Agreement") dated March 13. 2024 between Apollo Funding Co. ("AFC")
the Merchant(s) listed below ("Merchant") and the Individual(s) listed below ("Guarantor")
MERCHANT
INFORMATION
Merchant's LegalName: RSJFAMILYHOLDINGS
, LLC
MEALDELIVERYPARTNERSHIPQUICKFRESH MEALDELIVERY QUICKFRESH.
PARTNERSQUICKFRESH LLC LLC RSJFAMILYHOLDINGS, LLC
RSJ FAMILYHOLDINGS
QUICKFRESHJUST MEATSFEASTBOX,
LLC FEASTBOXBUILT BRANDS.LLC RSJBUILT SALESHOOKJUST MEATS,LLC
D/B/A: RSJFAMILYHOLDINGS State of Incorporation / Organization: UT Type of Entity: Corp. Q LLC
Physical Address: 2039 S VINCENTRIDGE DR Other: O Sole Prop
City: SPANISHFORK State: UT zip: 84660 Business Phone:
Guarantor(s) Natne: JODYCLARK
ROOKSTOOL Cellphone Number: 801-7177447 EmadAddress:
Mailing Address: 676 WSPRINGCREEKPL City: State: UT zip: 84663
Purchase Price:$ 300,000.00 Purchased Percent 8 % Purchased Amount: $ 453,000.00 Payment Frequency: WEEKLYRemittance $ 28,313.00
In consideration of payment by AFC to Merchant of the Purchase Price set forth above, Merchant hereby sells, assigns and transfers to AFC (making
AFCthe absolute owner) the Purchased Percentage of all of the Merchant's payments, receipts, settlements and funds paid to or received by or for the account of Merchant
from time to time on and after the date hereof in payment or settlement of Merchant's existing and future accounts, payment intangibles, credit, debit and/or stored value card
customers'
transactions, contract rights and other entitlements arising from or relating to the payment of monies from Merchant's and/or other payors or obligors
Receipts" "Receipts"
(the "Future or are defined as all payments made by cash, check, clearmghouse settlement, electronic transfer or other form of monetary
payment), for the payments to Merchant as a result of Merchant's sale of goods and/ or services (the "Transactions") until the Purchased Amount has been delivered by or on behalf
of Merchant to AFC.
Merchant is selling a portion of a future revenue stream to AFCat a discount, and is not borrowing moneyfrom AFC, therefore there is no interest rate or payment schedule and no time
period during which the Purchased Amount must be collected by AFC. The Remittance is a good faith estimate of AFCsshare of the future revenue stream. Merchant going bankrupt or
going out of business, or experiencing a slowdown in business, or a delay in collecting its receivables, in and of itself, does not constitute a breach of
this Agreement. AFC is entering this Agreement knowing the risks that Merchant's business may not perform as expected or fail, and AFCassumes
these risks based on Merchant's representations, warranties and covenants in this Agreement, which are designed to give AFC a reasonable and fair
opportunity to receive the benefit of its bargain. AFC acknowledges that it may never receive the Purchased Amount in the event that the Merchant does not generate
sufficient revenue. Merchant and Guarantor(s)(s) are only guaranteeing their performance of the terms of this Revenue Purchase Agreement, and are not guaranteeing the payment of
the Purchased Amount. The initial Remittance shall be as described above. The Remittance is subject to adjustment as set forth in Paragraph 1.3 and Paragraph 1.4.
AFC will debit the Remittance each business day from only one depositing bank account, which account must be acceptable to, and pre-approved by, AFC (the "Account") into
which Merchant and Merchant's customers shall remit the Receipts from each Transaction, until such time as AFC receives payment in full of the Purchased
Amount. Merchant hereby authorizes AFC to ACHdebit the agreed Remittance from the Account on the agreed upon Payment Frequency; a daily basis means any day
that is not a United States banking holiday, provided that AFCmay collect twice the Remittance amount on the date following such banking holiday, AFCmay alter the Payment
Frequency from weekly to daily upon Event of Default or missed Remittance. Merchant agrees not to makeor cause debits to the Account (other than in favor of AFC) at any time that
would cause the balance therein on any business day to be insufficient to fund payment in full of the agreed Remittance. The Account may not be used for any personal, family or
household purposes. Merchant will provide AFCwith all required access codes and monthly bank statements regarding the Account so that AFC may monitor the Account.
AFC payment of the Purchase Price shall be deemed the acceptance and performance by AFC of this Agreement. Merchant understands that it is
responsible for ensuring that the agreed Remittance to be debited by AFC remains in the Account and will be held responsible for any fees incurred by AFC resulting from a
rejected ACH attempt or an Event of Default. AFC is not responsible for any overdrafts or rejected transactions that may result from AFCs ACH debiting the
agreed Remittance under the terms of this Agreement. Notwithstanding anything to the contrary in this Agreement or any other agreement between AFC and
Merchant, upon the occurrence of an Event of Default of the MERCHANT AGREEMENTTERMSANDCONDITIONSthe Purchased Percentage shall equal 100%. A
list of all fees applicable under this Agreement is contained in Appendix A.
THE MERCHANTAGREEMENT"TERMSAND CONDITIONS", THE "SECURITY AGREEMENTAND GUARANTY"AND THE
"ADMINISTRATIVEFORM
HEREOF,AREALLHEREBY IN ANDMADE
INCORPORATED T THIS MERCHANT
AGREEMENT.
(#1)By: JODYCLARK
FORTHEMERCHANT ROOKSTOOL
(Print Nameand Title) ( ignature)
B43D34CB040343B...
FORTHEMERCHANT
(#2)By:
(Prmt Nameand Title) DocuSigned by: (Signature)
(#1)By: JODYCLARK
BYGUARANTOR(S) ROOKSTOOL
(Print Nameand Title) B43034C8040343B ( ignature)
BYGUARANTOR(S)
(#2)By:
(Pnnt Nameand Title) (Signature)
By: Apollo Funding Co. ("AFC")
(Print Nameand Title) (Signature)
DS
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NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/02/2024
MERCHANT TERMSANDCONDmONS
AGREEMENT
1 IN PROGRAM
TERMSOFENROLLMENT
1.1 Merchant Deposit Agreement and Processor. Merchant shall (A) execute an agreement acceptable to AFC with a Bank acceptable to AFCto obtain electronic
fund transfer services for the Account, and (B) if applicable, execute an agreement acceptable to AFC with a credit and debit card processor (the "Processor") instructing the
Processor to deposit all Receipts into the Account. Merchant shall provide AFC and/or its authorized agent(s) with all of the information, authorizations and
passwords necessary for verifying Merchant's receivables, receipts, deposits and withdrawals into and from the Account. Merchant hereby authorizes AFC and/or its
agent(s) to withdraw from the Account via ACH
debit the amounts owed to AFC for the receipts as specified herein and to pay such amounts to AFC. These authorizations
apply not only to the approved Account but also to any subsequent or altemate account used by the Merchant for these deposits, whether pre-approved by AFC or not. This
additional is not a waiver of AFCs entitlement to declare this Agreement breached by Merchant as a result of its usage of an account which AFC did not
authorization
first pre-approve in
writing prior to Merchant's usage thereof. The aforementioned authorizations shall be irrevocable without the written consent of AFC.
1.2 Term of Agreement This Agreement shall remain in full force and effect until the entire Purchased Amountand any other amounts due are received by AFCas he
terms of this Agreement.
1.3 Reconciliation. As long as an Event of Default, or breach of this agreement, has not occurred, Merchant, at any time, may request a retroactive reconciliation of the total
Remittance Amount. All requests hereunder must be in writing to info@mcaservicingcompany.com. Said request must include copies of all of Merchant's bank account
statements, credit card processing statements, and accounts receivable report outstanding if applicable, from the date of this Agreement through and including the date the request is
made. If you have questions or comments about your financing, you may contact us by e-mail at questions•a measervicingcompany.com. AFC retains the right to
reasonably request additional documentation including bank login or access to view all Merchant's accounts using third party sonware, to correctly and accurately perform the
reconciliation and Merchant's refusal to provide access shall negate AFC's requirement to perform a reconciliation until the Merchant provides the appropriate documents for
AFC to perform a reconciliation. Such reconciliation, if applicable, shall be performed by AFC within five (5) Business Days following its receipt of Merchant's request for
reconciliation and supporting documentation by either crediting or debiting the difference back to, or from, Merchant's Bank Account so that the total amount debited by
AFC shall equal the Specific Percentage of the Future Receipts that Merchant collected during the contract term.
1.4 Adjustments to the Remittance. As long as an Event of Default, or breach of this agreement, has not occuned, Merchant may give notice to AFC to request a
decrease in the should
Remittance,they experience a decrease in its Future Receipts. All requests hereunder must be in writing to
info@mcaservicingcompany.com and must include copies of all of Merchant's bank account statements, credit card processing statements, and accounts receivable
report outstanding from the date of this Agreement through and including the date the request is made. AFC retains the right to reasonably request additional
documentation including bank login or 3rd party software access to view all Merchant's
accounts, refusal to provide access shall negate AFC's obligation to adjust
the Remittance until the Merchant provides the appropriate documentation. The Remittance
shall be modified to more closely reflect the Merchant's actual receipts by
multiplying the Merchant's actual receipts by the Purchased Percentage divided by the number of business days in the previous (2) calendar weeks. Merchant
shall provide AFC with viewing access to their bank account as well as all information reasonably requested by AFC to properly calculate the Merchant's
Remittance. At the end of the two (2) calendar weeks the Merchant may request another adjustment pursuant to this paragraph or it is agreed that the Merchant's
Remittance shall return to the Remittance as agreed upon on Page 1 of this Agreement.
1.5 Financial Condition. Merchant and Guarantor(s)(s) (as hereinafter defined and limited) authorize AFC and its agents to investigate their financial responsibility and history,
and will provide to AFC any authorizations, bank or financial statements, tax returns, etc., as AFC requests in its sole and absolute discretion prior to or at any time after
execution of this Agreement. A photocopy of this authorization will be deemedas acceptable as an authorization for release of financial and credit information, AFC is authorized
to update such information and financial and credit profiles from time to time as it deemsappropriate. Merchant shall provide bank login information, or 3rd party software access,
to view Merchant's Account in connection with this Agreement. If Merchant changes the Account's login information, Merchant must provide AFC with the updated login
information in writing within 48 hours of such change. Merchant understands and agrees that AFC's access to the Account is expressly limited to monitoring for defaults under the
Agreement. UponAFC's request, Merchant shall within 48 hours provide login information to its bookkeeping software and/or provide weekly accounts receivable aging reports.
16 Transactional History. Merchant authorizes all of its banks, brokers and processor to provide AFC with Merchant's banking, brokerage and/or processing history to
determine qualification or continuation in this program and for collections purposes. Merchant shall provide AFC with copies of any documents related to Merchant's card
processing activity or financial and banking affairs within five days after a request from AFC.
1.7 Indemnification, Merchant and Guarantor(s)(s) hereby jointly and severally indemnify and hold harmless AFC and each Processor, their respective officers, directors, agents
and representatives, contractors, affiliates, and shareholders against all losses, damages, costs, claims, liabilities and expenses (including reasonable attorney's fees) incurred by any
such indemnifying acts or actions as a direct or indirect result of (a) claims asserted by AFCfor monies owed to AFC from Merchant and (b) actions taken by indemnitee in
reliance upon any fraudulent, misleading or deceptive information or instructions provided by Merchant or Guarantor(s).
1.8 No Liability. In no event will AFC be liable for any claims asserted by Merchant or Guarantor(s)s under any legal or equitable theory for lost profits, lost revenues, lost
business opportunities, exemplary, punitive, special, incidental, indirect or consequential damages, each of which is waived by both Merchant and Guarantor(s)(s). In the event
these claims are nonetheless raised, Merchant and Guarantor(s) s will be jointly liable for all of AFC's attorney's fees and expenses resulting therefrom.
1.9 Reliance on Terms. Section 1.1, 1.6, 1.7, 1.8 and 2.5 of this Agreement are agreed to for the benefit of Merchant, AFC, Processor, and Merchant's bank and notwithstanding
the fact that Processor and the bank is not a party of this Agreement, Processor and the bank may rely upon their terms and raise them as a defense in any action.
1.10 Sale of Receipts. Merchant and AFC ague that the Purchase Price under this Agreement is in exchange for the Purchased Amount, and that such Purchase
Price is not intended to be, nor shall it be construed as a loan from AFC to Merchant 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. AFC has purchased and shall own all the Receipts described in this Agreement up to the full Purchased
Amountas the Receipts are created. Merchant acknowledges that AFC's share of Receipts collected are being held by Merchant in trust and are the sole property of AFCuntil
they are remitted to AFC and shall not use AFCs share of Receipts and shall reflect AFCs ownership of AFCs share of Receipts on its books and records. Payments made to
AFCin respect to the full amount of the Receipts shall be conditioned upon Merchant's sale of products and services, and the payment therefore by Merchant's customers. By this
Agreement, Merchant transfers to AFC full and complete ownership of the Purchased Amountand Merchant retains no legal or equitable interest therein. AFC hereby appoints
Merchant, and Merchant accepts appointment, as servicer for and on behalf of AFC for the purpose of collecting and delivering Receipts to AFC as required by this Agreement
until AFC has received the Receipts Purchased Amount, and Merchant agrees that all such Receipts shall be received and held in trust for the benefit of AFC for purposes
of carrying out the terms of this Agreement. Merchant agrees that it will treat the amounts received and the Purchased Receipts delivered to AFCunder this Agreement in a manner
consistent with a sale in its accounting records and tax returns. Merchant agrees that AFCis entitled to audit Merchant's accounting records upon reasonable notice in order to
verify compliance. Merchant waives any rights of privacy, confidentiality or taxpayer privilege in any such litigation or arbitration in which Merchant asserts that this transaction is
anything other than a sale of future receipts. In no event shall the aggregate of all amounts or any ponion thereof be deemedas interest hereunder, and in the event it is found to be
interest despite the parties hereto specifically representing that it is NOTinterest, it shall be found that no sum charged or collected hereunder shall exceed the highest rate
permissible at law. In the event that a court nonetheless determines that AFChas charged or received interest hereunder in excess of the highest applicable rate, the rate in effect
hercunder shall automatically be reduced to the maximumrate permitted by applicable law and AFC shall promptly refund to Merchant any interest received by AFCin excess of
the maximumlawful rate, it being intended that Merchant not pay or contract to pay, and that AFC not receive or contract to receive, directly or indirectly in any
manner whatsoever, interest in excess of that which may be paid by Merchant under applicable law. As a result thereof, Merchant knowingly and willingly waives the defense of
Usury in any action or proceeding should this transaction be deemedthat of a loan and not a purchase of receivables.
DS
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1.11 Power of Attorney. Power of Attorney. Merchant irrevocably appoints AFC and its agents and representatives, as its agent and attorney-in-fact with full authority to take any
action or execute any instrument or document to settle and ensure payment of all obligations due to AFC from Processor or Merchant, regardless of whether the obligation is current or
due to a violation by Merchant of Section 1 or the occurrence of an Event of Default under Section 3 hereof, including without limitation: (i) to obtain and adjust insurance; (ii) to collect
monies due or to become due under or in respect of any of the Collateral; (iii) to receive, endorse and collect any checks, notes, drafts, instruments, documents or chattel paper in
connection with clause (i) or clause (ii) above; (iv) to sign Merchant's name on any invoice, bill of lading, or assignment directing customers or account debtors to makepayment directly
Guarantor(s)'
to AFC; (v) to contact Merchant's banks and financial institutions using Merchant and personal information to verify the existence of an account and obtain
account balances; and (vi) to file any claims or take any action or institute any proceeding which AFC maydeem necessary for the collection of any of the unpaid Purchased Amount
from the Collateral, or otherwise to enforce its rights with respect to payment of the Purchased Amount including but not limited to, notifying and instructing account debtors of Merchant
and any of Merchant's Processors to remit payment of accounts and other collateral owed to Merchant directly to AFC. In connection therewith, all costs, expenses and fees, including
legal fees. shall be payable by Merchant.
1.12 Protection of Information. Merchant and each person signing this Agreement on behalf of Merchant and/or as Owner or Guarantor(s), in respect of him self
for herself personally, authorizes AFC to disclose information concerning Merchant's and each Owner's and each Guarantor(s)'s credit standing (including credit
bureau reports that AFC obtains) and business conduct only to agents, affiliates, subsidiaries, and credit reporting bureaus. Merchant and each Owner and
each Guarantor(s) hereby and each waives to the maximumextent permitted by law any claim for damages against AFC or any of its affiliates relating to any
(i)investigation undertaken by or on behalf of AFC as permitted by this Agreement or (ii) disclosure of information as permitted by this
Agreement.
1.13 Confidentiality. Merchant understands and agrees that the terms and conditions of the products and services offered by AFC, including this Agreement and
any other AFC documents (collectively, "Confidential Information") are proprietary and confidential information of AFC. Accordingly, unless disclosure is required by
law or court order, Merchant shall not disclose Confidential Information of AFC to any person other than an attorney, accountant, financial advisor or employee of
Merchant who needs to know such information for the purpose of advising Merchant ("Advisor"), provided such Advisor uses such information solely for the purpose of
advising Merchant and first agrees in writing to be bound by the terms of this section. A breach hereof entitles AFC to not only damages and reasonable attorney's fees
but also to both a Temporary Restraining Order and a Preliminary Injunction without Bond or Security.
1.14 Publicity. Merchant and each of Merchant's Owners and all Guarantor(s) here to all hereby authorizes AFC to use its his or her name in listings of clients
and in advertising and marketing materials.
as" "d/b/a"
1.15 D/B/A's. Merchant hereby acknowledges and agrees that AFC may be using "doing business or names in connection with various matters relating
to the transaction between AFCand Merchant, including the filing of UCC-1 financing statements and other notices or filings.
1.16 Authority to Contact. Merchant and Owner/Guarantor(s) explicitly agree to be contacted by AFC and its agents and affiliates by telephone, email and/or
SMS / text messaging provided in connection with this Agreement and agree to cover all usual third-party costs or charges that may be associated with such
contacts. Merchant and Owner/Guarantor(s) understand that they are not required to agree to this paragraph as a condition of entering this Agreement.
147 Authority to Service Accounts. In the event Merchant is unable or unwilling to collect all or some of the Receipts, AFC shall have the right, without
waiving any of its other rights and remedies under this Agreement, to notify the Processor, any other credit card or payment processor used by Merchant, or
any third party having monies owed to Merchant for its sale or delivery of goods or services (including without limitation Merchant's customers), of the sale of the
Specified Percentage of the Receipts under this Agreement, and to direct such credit card, payment processor or other third party to make payment to AFC of all
or any portion of the amounts receivedby such credit card, payment processor or third party on behalf of Merchant. If no Event of Default has occurred, AFC
shall remit back to Merchant the excess above the Specified Percentage of the Receipts that it collected pursuant to this paragraph within 2 business days of payment
and shall provide a reconciliation in accordance with paragraph 1.3.
2 REPRESENTATIONS, ANDCOVENANTS
WARRANTIES
Merchant represents warrants and covenants that, as of this date and during the term of this Agreement:
Guarantor(s)s'
2.1 Financial Condition and Financial Information. Merchant's and bank and financial statements, copies of which have been furnished to AFC, and
future statements which will
be furnished hereafter at the discretion of AFC, and any other materials and information and statements made in connection with this
Agreement are complete and truthful and fairly represent the financial condition of Merchant at such dates, and since those dates there has been no material adverse
changes, financial or otherwise, in such condition, operation or ownership of Merchant. Merchant and Guarantor(s)s have a continuing, affirmative obligation to advise AFC
of any material adverse change in their financial condition, operation or ownership. AFC may request statements at any time during the performance of this Agreement and
Guarantor(s)s'
the Merchant and Guarantor(s)s shall provide them to AFC within five business days after request from AFC. Merchant's or 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 Electronic Check Processing
Agreement. Merchant will not change its Processor, add terminals, change its financial institution or bank account(s) or take any
other action that could have any adverse effect upon Merchant's obligations under this Agreement, without AFC's prior written consent. Any such changes shall be a
material breach of this Agreement.
2.6 Change of Name or Location. Merchant will not conduct Merchant's businesses under any name other than as disclosed to the Processor and AFC, nor shall Merchant
change any of its places of business without prior written notification to AFC.
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 AFCto Merchant, execute, acknowledge and deliver to
AFC and/or to any other person, firm or corporation specified by AFC, a statement certifying that this Agreement is unmodified and in full force and effect (or, if there have been
modifications, that the sameis in full force and effect as modified and stating the modifications) and stating the dates which the Purchased Amount or any portion thereof has been repaid.
2.9 No Bankruptcy. As of the date of this Agreement, Merchant is not insolvent and does not contemplate filing for bankruptcy in the next six (6) 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 it does not anticipate filing any such bankruptcy petition nor does Merchant anticipate that an involuntary petition will be filed against Merchant.
Notwithstanding, the Merchant's filing for bankruptcy shall not constitute an event of default under this Agreement.
2,10 Unencumbered Receipts. Merchant has good, complete, unencumberedand marketable title to all Receipts and all collateral in which AFC 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 AFC or any other rights or interests that may be inconsistent with the transactions contemplated with, or adverse to
the interests of AFC.
2.11 Business Purpose. Merchant is a valid business in good standing under the laws of the jurisdictions in which it is orgamzed and/or operates, and Merchant is entering in to this
Agreement for business purposes and not as a consumer for personal. family or household purposes.
2.12 Defaults under Other Contracts. Merchant's execution of, and/or performance under this Agreement, will not cause or create an event of default by Merchant under any contract
with another person or entity.
2.13 GoodFaith. Merchant and Guarantor(s)s hereby affirm that Merchant is receiving the Purchase Price and selling AFCthe Purchased Amount in good faith and will use the Purchase
Price funds to maintain and grow Merchant's business.
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3 EVENTSOFDEFAULTANDREMEDIES
Default"
3.1 Events of Default. The occurrence of any of the following events shall constitute an "Event of hereunder: (a) Merchant or Guarantor(s) shall violate any term or covenant in
this Agreement; (b) Any representation or warranty by Merchant or Guarantor(s) in this Agreement shall prove to have been incorrect, false or misleading in any material respect when
made; (c) the sending of notice of termination by Merchant or verbally notifying AFC of its intent to breach this Agreement; (d) the Merchant fails to request a Reconciliation or
Adjustments to the Remittance pursuant to Paragraphs 1.3 &
1.4 (as appropriate) within 1 business day of a Merchant's Remittance returned of insufficient funds in the Account such that
the ACII of the Remittance amount was not be honored by Merchant's bank; (e) Merchant fails to provide its bank statements, and/or month to date bank activity, accounts receivable
reports, and/or bank login information within two (2) business days of a request by AFC, or the merchant changes their bank login information (which was previously-provided to AFC)
without providing AFC with the updated login information in writing within 48 hours of such update; (f) Merchant shall voluntarily transfer or sell all or substantially all of its assets; (g)
Merchant shall make or send notice of any intended bulk sale or transfer by Merchant; (h) Merchant shall use multiple depository accounts without the prior written consent of AFC or
takes any other action that intentionally interferes with or prevents AFC from receiving the Purchased Amount in accordance with the terms of this Agreement; (i) Merchant shall enter into
any financing agreements with any other party including but not limited to: Loans, Merchant Cash Advances, Receivables financing, or any other agreement that will increase the total debt
owed by Merchant to any other party; (j) Merchant shall change its depositing account without the prior written consent of AFC; (k) Merchant shall close its depositing account used for
ACHdebits without the prior written consent of AFC; (1) Merchant's bank returns a code other than NSF cutting AFC from its collections; (m) Merchant or any Owner/ Guarantor(s),
directly or indirectly, causes to be formed a new entity or otherwise becomesassociated with any new or existing entity, which operates a business similar to or competitive with that of
Merchant; or (n) Merchant shall default under any of the terms, covenants and conditions of any other agreement with AFC.
3.2 Limited Personal Guaranty. Guarantor shall provide a limited guaranty of performance in connection with this Agreement ("Guaranty"). The Guaranty shall only guaranty
the Merchant's performance of the covenants, representations and conditions of this Agreement and shall not guarantee the Remittance payment except upon the occurrence of an
Event of Default. Upon the occurrence of an Event of Default, AFC will enforce its rights against the Guarantor(s) of this transaction. Said Guarantor(s) will be jointly and
severally liable to AFC for all of AFC's losses and Guarantor(s) will be jointly and severally liable to AFC for all of AFC's losses and damages, in additional to all costs and
expenses and legal fees associated with such enforcement. For the avoidance of doubt, the Guarantor shall not be liable in the event that the Merchant is not liable under this
Agreement.
3.3 Remedies. Uponthe occurrence of an Event of Default that is not waived pursuant to Section 4.4. hereof, AFC 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 (1) accelerating the full uncollected
Purchased Amount (2) filing the Confession of Judgment and executing thercon, and (3) enforcing the Security Agreement contained herein including any and all rights and
remedies of a secured party under Uniform Commercial Code Article 9, and sending demand letters to account debtors and credit card processors. All rights, powers and
remedies of AFC in connection with this Agreement maybe exercised at any time by AFC 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.
Upon an Event of Default under Section 3.1(i), AFC shall be permitted to immediately and for the duration of this Agreement collect twice or three times the Remittance amount, in
accordance with AFC's determmation, in its sole discretion, of the increased risk caused to AFC as a result of such Event of Default.
3.4 Collection Fees. Uponthe occurrence of an Event of Default, and AFC legal counsel to enforce this Agreement, Merchant and Guarantor(s) agree that a fee equal to 30% of the
Remaining Balance (purchased amount less amount remitted by Merchant) ("Collection Fees") shall be immediately assessed Merchant and Guarantor(s) agree that the calculation for
Collection Fees is reasonable.
3.5 Costs. Merchant shall pay to AFC all reasonable costs associated with (a) an Event or Default, (b) breach by Merchant of the Covenants in this Agreement and the enforcement thereof,
attorneys'
and(c) the enforcement of AFC's remedies set forth in this Agreement, including but not limited to court costs and fees.
3.6 Required Notifications. Merchant is required to give AFC written notice within 24 hours of any filing under Title 11 of the United States Code. Merchant is required to give AFC seven
days'
(7) written notice prior to the closing of any sale of all or substantially all of the Merchant's assets or stock. Failure to comply with either of these required notifications shall be deemed
an Event of Default.
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
AFC.
4.2 Assignment AFC 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. All notices, requests, consents, demands and other communications hercunder shall be delivered by certified m
ail, return receipt requested, to the respective parties to this
Agreement at the addresses set forth in this Agreement. Notices to AFC shall become effective only upon receipt by AFC. Notices to Merchant shall become effective three days after
mailing.
4.4 Waiver Remedies. No failure on the part of AFC 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. The remedies provided hereunder are cumulative and not
exclusive of any remedies provided by law or equity.
4.5 Binding Effect; Governing Law, Venue and Jurisdiction. This Agreement, Security Agreement and Guaranty, Guaranty of Performance, and any and all addenda, attachments,
exhibits, and other documents relating to this Agreement in any way, shall be binding upon and inute to the benefit of Merchant and Guarantor(s) on the one hand, and AFC and their
respective successors and assigns, except that Merchant and Guarantor(s) shall not have the right to assign their rights hereunder or any interest herein without the prior written consent of
AFC which consent may be withheld in AFC's sole discretion. AFC reserves the rights to assign this Agreement with or without prior written notice to Merchant. This Agreement,
Security Agreement, Guaranty of Performance, and any and all addenda, attachments, exhibits, and other documents relating to this Agreement in any way, shall be governed by and
construed in accordance with the laws of the state of New York, without regards to any applicable principles of conflicts of law. Any suit, action or proceeding arising hereunder, or the
interpretation, performance or breach hereof, shall be instituted exclusively in the SupremeCourt of the State of New York (the "Acceptable Forums") and not in the federal courts located
within the State of New York. The Merchant, and Guarantor(s) specifically waive their right to remove any state court action commencedby AFC and further consent to the Remandof any
matter pending between any of the Parties to this Agreement to State Court. All Parties to this Agreement, hereby acknowledge and agree that the Acceptable Forums are convenient for the
resolution of any disputes, submit to their jurisdiction and waive any and all rights to object to jurisdiction or venue in same. Merchant and Guarantor(s) hereby waive all formal service of
process including but not limited to personal service and agree that the mailing of any Summons and Complaint in any proceeding commencedby AFC by certified o r registered ail, m
return receipt requested to the Mailing Address listed on this Agreement ,or via email to the Email Address listed on this Agreement, or any other process required by any such court 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, but without
invalidating service performed in accordance with such other provisions.
4.6 Survival of Representation, etc. 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.
attorneys'
4.7 Interpretation. All Parties hereto have reviewed this Agreement with an attorney of their choice and have relied only upon their own guidance and advice. This Agreement
shall not be construed as against the preparing party. 4.8 Sever ability. In case any of the provisions of this Agreement are found to be invalid, illegal or unenforceable, the validity, legality
and enforce-ability of the remaining provisions of this Agreement shall not be affected or impaired in any way.
4.8 Sever ability. In case any of the provisions of this Agreement are found to be invalid, illegal or unenforceable, the validity, legality and enforce-ability of the remaining provisions of
this Agreement shall not be affected or impaired in any way.
4.9 Entin Agreement. Any provision hereof prohibited by law shall be ineffective only to the extent of such prohibition without invalidating the remaining provisions hereof. This
Agreement, including but not limited to the Security Agreem
Preview
FILED: MONROE COUNTY CLERK 07/02/2024 10:09 AM INDEX NO. E2024010866 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/02/2024 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # Book Page Return To: No. Pages: 11 MICHAEL KEITH JOHNSON One Whitehall Street Instrument: EXHIBIT(S) Suite 200 New York, NY 10004 Control #: Unrecorded #9881071 Index #: Unassigned-1614755 Date: Apollo Funding Co. Time: JODY CLARK ROOKSTOOL, RSJ FAMILY HOLDINGS , LLC MEAL DELIVERY PARTNERSHIP QUICKFRESH PARTNERS QUICKFRESH MEAL DELIVERY Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK FILED: MONROE COUNTY CLERK 07/02/2024 10:09 AM INDEX NO. E2024010866 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/02/2024 EXHIBIT A FILED: MONROE COUNTY CLERK 07/02/2024 10:09 AM INDEX NO. E2024010866 DocuSign Envelope ID: NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/02/2024 REVENUE ACREEMENT PURCHASE This Revenue Purchase Agreement and Secunty Agreement and Guaranty of Perfonnance ("Agreement") dated March 13. 2024 between Apollo Funding Co. ("AFC") the Merchant(s) listed below ("Merchant") and the Individual(s) listed below ("Guarantor") MERCHANT INFORMATION Merchant's LegalName: RSJFAMILYHOLDINGS , LLC MEALDELIVERYPARTNERSHIPQUICKFRESH MEALDELIVERY QUICKFRESH. PARTNERSQUICKFRESH LLC LLC RSJFAMILYHOLDINGS, LLC RSJ FAMILYHOLDINGS QUICKFRESHJUST MEATSFEASTBOX, LLC FEASTBOXBUILT BRANDS.LLC RSJBUILT SALESHOOKJUST MEATS,LLC D/B/A: RSJFAMILYHOLDINGS State of Incorporation / Organization: UT Type of Entity: Corp. Q LLC Physical Address: 2039 S VINCENTRIDGE DR Other: O Sole Prop City: SPANISHFORK State: UT zip: 84660 Business Phone: Guarantor(s) Natne: JODYCLARK ROOKSTOOL Cellphone Number: 801-7177447 EmadAddress: Mailing Address: 676 WSPRINGCREEKPL City: State: UT zip: 84663 Purchase Price:$ 300,000.00 Purchased Percent 8 % Purchased Amount: $ 453,000.00 Payment Frequency: WEEKLYRemittance $ 28,313.00 In consideration of payment by AFC to Merchant of the Purchase Price set forth above, Merchant hereby sells, assigns and transfers to AFC (making AFCthe absolute owner) the Purchased Percentage of all of the Merchant's payments, receipts, settlements and funds paid to or received by or for the account of Merchant from time to time on and after the date hereof in payment or settlement of Merchant's existing and future accounts, payment intangibles, credit, debit and/or stored value card customers' transactions, contract rights and other entitlements arising from or relating to the payment of monies from Merchant's and/or other payors or obligors Receipts" "Receipts" (the "Future or are defined as all payments made by cash, check, clearmghouse settlement, electronic transfer or other form of monetary payment), for the payments to Merchant as a result of Merchant's sale of goods and/ or services (the "Transactions") until the Purchased Amount has been delivered by or on behalf of Merchant to AFC. Merchant is selling a portion of a future revenue stream to AFCat a discount, and is not borrowing moneyfrom AFC, therefore there is no interest rate or payment schedule and no time period during which the Purchased Amount must be collected by AFC. The Remittance is a good faith estimate of AFCsshare of the future revenue stream. Merchant going bankrupt or going out of business, or experiencing a slowdown in business, or a delay in collecting its receivables, in and of itself, does not constitute a breach of this Agreement. AFC is entering this Agreement knowing the risks that Merchant's business may not perform as expected or fail, and AFCassumes these risks based on Merchant's representations, warranties and covenants in this Agreement, which are designed to give AFC a reasonable and fair opportunity to receive the benefit of its bargain. AFC acknowledges that it may never receive the Purchased Amount in the event that the Merchant does not generate sufficient revenue. Merchant and Guarantor(s)(s) are only guaranteeing their performance of the terms of this Revenue Purchase Agreement, and are not guaranteeing the payment of the Purchased Amount. The initial Remittance shall be as described above. The Remittance is subject to adjustment as set forth in Paragraph 1.3 and Paragraph 1.4. AFC will debit the Remittance each business day from only one depositing bank account, which account must be acceptable to, and pre-approved by, AFC (the "Account") into which Merchant and Merchant's customers shall remit the Receipts from each Transaction, until such time as AFC receives payment in full of the Purchased Amount. Merchant hereby authorizes AFC to ACHdebit the agreed Remittance from the Account on the agreed upon Payment Frequency; a daily basis means any day that is not a United States banking holiday, provided that AFCmay collect twice the Remittance amount on the date following such banking holiday, AFCmay alter the Payment Frequency from weekly to daily upon Event of Default or missed Remittance. Merchant agrees not to makeor cause debits to the Account (other than in favor of AFC) at any time that would cause the balance therein on any business day to be insufficient to fund payment in full of the agreed Remittance. The Account may not be used for any personal, family or household purposes. Merchant will provide AFCwith all required access codes and monthly bank statements regarding the Account so that AFC may monitor the Account. AFC payment of the Purchase Price shall be deemed the acceptance and performance by AFC of this Agreement. Merchant understands that it is responsible for ensuring that the agreed Remittance to be debited by AFC remains in the Account and will be held responsible for any fees incurred by AFC resulting from a rejected ACH attempt or an Event of Default. AFC is not responsible for any overdrafts or rejected transactions that may result from AFCs ACH debiting the agreed Remittance under the terms of this Agreement. Notwithstanding anything to the contrary in this Agreement or any other agreement between AFC and Merchant, upon the occurrence of an Event of Default of the MERCHANT AGREEMENTTERMSANDCONDITIONSthe Purchased Percentage shall equal 100%. A list of all fees applicable under this Agreement is contained in Appendix A. THE MERCHANTAGREEMENT"TERMSAND CONDITIONS", THE "SECURITY AGREEMENTAND GUARANTY"AND THE "ADMINISTRATIVEFORM HEREOF,AREALLHEREBY IN ANDMADE INCORPORATED T THIS MERCHANT AGREEMENT. (#1)By: JODYCLARK FORTHEMERCHANT ROOKSTOOL (Print Nameand Title) ( ignature) B43D34CB040343B... FORTHEMERCHANT (#2)By: (Prmt Nameand Title) DocuSigned by: (Signature) (#1)By: JODYCLARK BYGUARANTOR(S) ROOKSTOOL (Print Nameand Title) B43034C8040343B ( ignature) BYGUARANTOR(S) (#2)By: (Pnnt Nameand Title) (Signature) By: Apollo Funding Co. ("AFC") (Print Nameand Title) (Signature) DS Imtral: FILED: MONROE COUNTY CLERK 07/02/2024 10:09 AM INDEX NO. E2024010866 DocuSign Envelope ID: NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/02/2024 MERCHANT TERMSANDCONDmONS AGREEMENT 1 IN PROGRAM TERMSOFENROLLMENT 1.1 Merchant Deposit Agreement and Processor. Merchant shall (A) execute an agreement acceptable to AFC with a Bank acceptable to AFCto obtain electronic fund transfer services for the Account, and (B) if applicable, execute an agreement acceptable to AFC with a credit and debit card processor (the "Processor") instructing the Processor to deposit all Receipts into the Account. Merchant shall provide AFC and/or its authorized agent(s) with all of the information, authorizations and passwords necessary for verifying Merchant's receivables, receipts, deposits and withdrawals into and from the Account. Merchant hereby authorizes AFC and/or its agent(s) to withdraw from the Account via ACH debit the amounts owed to AFC for the receipts as specified herein and to pay such amounts to AFC. These authorizations apply not only to the approved Account but also to any subsequent or altemate account used by the Merchant for these deposits, whether pre-approved by AFC or not. This additional is not a waiver of AFCs entitlement to declare this Agreement breached by Merchant as a result of its usage of an account which AFC did not authorization first pre-approve in writing prior to Merchant's usage thereof. The aforementioned authorizations shall be irrevocable without the written consent of AFC. 1.2 Term of Agreement This Agreement shall remain in full force and effect until the entire Purchased Amountand any other amounts due are received by AFCas he terms of this Agreement. 1.3 Reconciliation. As long as an Event of Default, or breach of this agreement, has not occurred, Merchant, at any time, may request a retroactive reconciliation of the total Remittance Amount. All requests hereunder must be in writing to info@mcaservicingcompany.com. Said request must include copies of all of Merchant's bank account statements, credit card processing statements, and accounts receivable report outstanding if applicable, from the date of this Agreement through and including the date the request is made. If you have questions or comments about your financing, you may contact us by e-mail at questions•a measervicingcompany.com. AFC retains the right to reasonably request additional documentation including bank login or access to view all Merchant's accounts using third party sonware, to correctly and accurately perform the reconciliation and Merchant's refusal to provide access shall negate AFC's requirement to perform a reconciliation until the Merchant provides the appropriate documents for AFC to perform a reconciliation. Such reconciliation, if applicable, shall be performed by AFC within five (5) Business Days following its receipt of Merchant's request for reconciliation and supporting documentation by either crediting or debiting the difference back to, or from, Merchant's Bank Account so that the total amount debited by AFC shall equal the Specific Percentage of the Future Receipts that Merchant collected during the contract term. 1.4 Adjustments to the Remittance. As long as an Event of Default, or breach of this agreement, has not occuned, Merchant may give notice to AFC to request a decrease in the should Remittance,they experience a decrease in its Future Receipts. All requests hereunder must be in writing to info@mcaservicingcompany.com and must include copies of all of Merchant's bank account statements, credit card processing statements, and accounts receivable report outstanding from the date of this Agreement through and including the date the request is made. AFC retains the right to reasonably request additional documentation including bank login or 3rd party software access to view all Merchant's accounts, refusal to provide access shall negate AFC's obligation to adjust the Remittance until the Merchant provides the appropriate documentation. The Remittance shall be modified to more closely reflect the Merchant's actual receipts by multiplying the Merchant's actual receipts by the Purchased Percentage divided by the number of business days in the previous (2) calendar weeks. Merchant shall provide AFC with viewing access to their bank account as well as all information reasonably requested by AFC to properly calculate the Merchant's Remittance. At the end of the two (2) calendar weeks the Merchant may request another adjustment pursuant to this paragraph or it is agreed that the Merchant's Remittance shall return to the Remittance as agreed upon on Page 1 of this Agreement. 1.5 Financial Condition. Merchant and Guarantor(s)(s) (as hereinafter defined and limited) authorize AFC and its agents to investigate their financial responsibility and history, and will provide to AFC any authorizations, bank or financial statements, tax returns, etc., as AFC requests in its sole and absolute discretion prior to or at any time after execution of this Agreement. A photocopy of this authorization will be deemedas acceptable as an authorization for release of financial and credit information, AFC is authorized to update such information and financial and credit profiles from time to time as it deemsappropriate. Merchant shall provide bank login information, or 3rd party software access, to view Merchant's Account in connection with this Agreement. If Merchant changes the Account's login information, Merchant must provide AFC with the updated login information in writing within 48 hours of such change. Merchant understands and agrees that AFC's access to the Account is expressly limited to monitoring for defaults under the Agreement. UponAFC's request, Merchant shall within 48 hours provide login information to its bookkeeping software and/or provide weekly accounts receivable aging reports. 16 Transactional History. Merchant authorizes all of its banks, brokers and processor to provide AFC with Merchant's banking, brokerage and/or processing history to determine qualification or continuation in this program and for collections purposes. Merchant shall provide AFC with copies of any documents related to Merchant's card processing activity or financial and banking affairs within five days after a request from AFC. 1.7 Indemnification, Merchant and Guarantor(s)(s) hereby jointly and severally indemnify and hold harmless AFC and each Processor, their respective officers, directors, agents and representatives, contractors, affiliates, and shareholders against all losses, damages, costs, claims, liabilities and expenses (including reasonable attorney's fees) incurred by any such indemnifying acts or actions as a direct or indirect result of (a) claims asserted by AFCfor monies owed to AFC from Merchant and (b) actions taken by indemnitee in reliance upon any fraudulent, misleading or deceptive information or instructions provided by Merchant or Guarantor(s). 1.8 No Liability. In no event will AFC be liable for any claims asserted by Merchant or Guarantor(s)s under any legal or equitable theory for lost profits, lost revenues, lost business opportunities, exemplary, punitive, special, incidental, indirect or consequential damages, each of which is waived by both Merchant and Guarantor(s)(s). In the event these claims are nonetheless raised, Merchant and Guarantor(s) s will be jointly liable for all of AFC's attorney's fees and expenses resulting therefrom. 1.9 Reliance on Terms. Section 1.1, 1.6, 1.7, 1.8 and 2.5 of this Agreement are agreed to for the benefit of Merchant, AFC, Processor, and Merchant's bank and notwithstanding the fact that Processor and the bank is not a party of this Agreement, Processor and the bank may rely upon their terms and raise them as a defense in any action. 1.10 Sale of Receipts. Merchant and AFC ague that the Purchase Price under this Agreement is in exchange for the Purchased Amount, and that such Purchase Price is not intended to be, nor shall it be construed as a loan from AFC to Merchant 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. AFC has purchased and shall own all the Receipts described in this Agreement up to the full Purchased Amountas the Receipts are created. Merchant acknowledges that AFC's share of Receipts collected are being held by Merchant in trust and are the sole property of AFCuntil they are remitted to AFC and shall not use AFCs share of Receipts and shall reflect AFCs ownership of AFCs share of Receipts on its books and records. Payments made to AFCin respect to the full amount of the Receipts shall be conditioned upon Merchant's sale of products and services, and the payment therefore by Merchant's customers. By this Agreement, Merchant transfers to AFC full and complete ownership of the Purchased Amountand Merchant retains no legal or equitable interest therein. AFC hereby appoints Merchant, and Merchant accepts appointment, as servicer for and on behalf of AFC for the purpose of collecting and delivering Receipts to AFC as required by this Agreement until AFC has received the Receipts Purchased Amount, and Merchant agrees that all such Receipts shall be received and held in trust for the benefit of AFC for purposes of carrying out the terms of this Agreement. Merchant agrees that it will treat the amounts received and the Purchased Receipts delivered to AFCunder this Agreement in a manner consistent with a sale in its accounting records and tax returns. Merchant agrees that AFCis entitled to audit Merchant's accounting records upon reasonable notice in order to verify compliance. Merchant waives any rights of privacy, confidentiality or taxpayer privilege in any such litigation or arbitration in which Merchant asserts that this transaction is anything other than a sale of future receipts. In no event shall the aggregate of all amounts or any ponion thereof be deemedas interest hereunder, and in the event it is found to be interest despite the parties hereto specifically representing that it is NOTinterest, it shall be found that no sum charged or collected hereunder shall exceed the highest rate permissible at law. In the event that a court nonetheless determines that AFChas charged or received interest hereunder in excess of the highest applicable rate, the rate in effect hercunder shall automatically be reduced to the maximumrate permitted by applicable law and AFC shall promptly refund to Merchant any interest received by AFCin excess of the maximumlawful rate, it being intended that Merchant not pay or contract to pay, and that AFC not receive or contract to receive, directly or indirectly in any manner whatsoever, interest in excess of that which may be paid by Merchant under applicable law. As a result thereof, Merchant knowingly and willingly waives the defense of Usury in any action or proceeding should this transaction be deemedthat of a loan and not a purchase of receivables. DS Initia 2 FILED: MONROE COUNTY CLERK 07/02/2024 10:09 AM INDEX NO. E2024010866 DocuSign Envelope ID: NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/02/2024 1.11 Power of Attorney. Power of Attorney. Merchant irrevocably appoints AFC and its agents and representatives, as its agent and attorney-in-fact with full authority to take any action or execute any instrument or document to settle and ensure payment of all obligations due to AFC from Processor or Merchant, regardless of whether the obligation is current or due to a violation by Merchant of Section 1 or the occurrence of an Event of Default under Section 3 hereof, including without limitation: (i) to obtain and adjust insurance; (ii) to collect monies due or to become due under or in respect of any of the Collateral; (iii) to receive, endorse and collect any checks, notes, drafts, instruments, documents or chattel paper in connection with clause (i) or clause (ii) above; (iv) to sign Merchant's name on any invoice, bill of lading, or assignment directing customers or account debtors to makepayment directly Guarantor(s)' to AFC; (v) to contact Merchant's banks and financial institutions using Merchant and personal information to verify the existence of an account and obtain account balances; and (vi) to file any claims or take any action or institute any proceeding which AFC maydeem necessary for the collection of any of the unpaid Purchased Amount from the Collateral, or otherwise to enforce its rights with respect to payment of the Purchased Amount including but not limited to, notifying and instructing account debtors of Merchant and any of Merchant's Processors to remit payment of accounts and other collateral owed to Merchant directly to AFC. In connection therewith, all costs, expenses and fees, including legal fees. shall be payable by Merchant. 1.12 Protection of Information. Merchant and each person signing this Agreement on behalf of Merchant and/or as Owner or Guarantor(s), in respect of him self for herself personally, authorizes AFC to disclose information concerning Merchant's and each Owner's and each Guarantor(s)'s credit standing (including credit bureau reports that AFC obtains) and business conduct only to agents, affiliates, subsidiaries, and credit reporting bureaus. Merchant and each Owner and each Guarantor(s) hereby and each waives to the maximumextent permitted by law any claim for damages against AFC or any of its affiliates relating to any (i)investigation undertaken by or on behalf of AFC as permitted by this Agreement or (ii) disclosure of information as permitted by this Agreement. 1.13 Confidentiality. Merchant understands and agrees that the terms and conditions of the products and services offered by AFC, including this Agreement and any other AFC documents (collectively, "Confidential Information") are proprietary and confidential information of AFC. Accordingly, unless disclosure is required by law or court order, Merchant shall not disclose Confidential Information of AFC to any person other than an attorney, accountant, financial advisor or employee of Merchant who needs to know such information for the purpose of advising Merchant ("Advisor"), provided such Advisor uses such information solely for the purpose of advising Merchant and first agrees in writing to be bound by the terms of this section. A breach hereof entitles AFC to not only damages and reasonable attorney's fees but also to both a Temporary Restraining Order and a Preliminary Injunction without Bond or Security. 1.14 Publicity. Merchant and each of Merchant's Owners and all Guarantor(s) here to all hereby authorizes AFC to use its his or her name in listings of clients and in advertising and marketing materials. as" "d/b/a" 1.15 D/B/A's. Merchant hereby acknowledges and agrees that AFC may be using "doing business or names in connection with various matters relating to the transaction between AFCand Merchant, including the filing of UCC-1 financing statements and other notices or filings. 1.16 Authority to Contact. Merchant and Owner/Guarantor(s) explicitly agree to be contacted by AFC and its agents and affiliates by telephone, email and/or SMS / text messaging provided in connection with this Agreement and agree to cover all usual third-party costs or charges that may be associated with such contacts. Merchant and Owner/Guarantor(s) understand that they are not required to agree to this paragraph as a condition of entering this Agreement. 147 Authority to Service Accounts. In the event Merchant is unable or unwilling to collect all or some of the Receipts, AFC shall have the right, without waiving any of its other rights and remedies under this Agreement, to notify the Processor, any other credit card or payment processor used by Merchant, or any third party having monies owed to Merchant for its sale or delivery of goods or services (including without limitation Merchant's customers), of the sale of the Specified Percentage of the Receipts under this Agreement, and to direct such credit card, payment processor or other third party to make payment to AFC of all or any portion of the amounts receivedby such credit card, payment processor or third party on behalf of Merchant. If no Event of Default has occurred, AFC shall remit back to Merchant the excess above the Specified Percentage of the Receipts that it collected pursuant to this paragraph within 2 business days of payment and shall provide a reconciliation in accordance with paragraph 1.3. 2 REPRESENTATIONS, ANDCOVENANTS WARRANTIES Merchant represents warrants and covenants that, as of this date and during the term of this Agreement: Guarantor(s)s' 2.1 Financial Condition and Financial Information. Merchant's and bank and financial statements, copies of which have been furnished to AFC, and future statements which will be furnished hereafter at the discretion of AFC, and any other materials and information and statements made in connection with this Agreement are complete and truthful and fairly represent the financial condition of Merchant at such dates, and since those dates there has been no material adverse changes, financial or otherwise, in such condition, operation or ownership of Merchant. Merchant and Guarantor(s)s have a continuing, affirmative obligation to advise AFC of any material adverse change in their financial condition, operation or ownership. AFC may request statements at any time during the performance of this Agreement and Guarantor(s)s' the Merchant and Guarantor(s)s shall provide them to AFC within five business days after request from AFC. Merchant's or 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 Electronic Check Processing Agreement. Merchant will not change its Processor, add terminals, change its financial institution or bank account(s) or take any other action that could have any adverse effect upon Merchant's obligations under this Agreement, without AFC's prior written consent. Any such changes shall be a material breach of this Agreement. 2.6 Change of Name or Location. Merchant will not conduct Merchant's businesses under any name other than as disclosed to the Processor and AFC, nor shall Merchant change any of its places of business without prior written notification to AFC. 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 AFCto Merchant, execute, acknowledge and deliver to AFC and/or to any other person, firm or corporation specified by AFC, a statement certifying that this Agreement is unmodified and in full force and effect (or, if there have been modifications, that the sameis in full force and effect as modified and stating the modifications) and stating the dates which the Purchased Amount or any portion thereof has been repaid. 2.9 No Bankruptcy. As of the date of this Agreement, Merchant is not insolvent and does not contemplate filing for bankruptcy in the next six (6) 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 it does not anticipate filing any such bankruptcy petition nor does Merchant anticipate that an involuntary petition will be filed against Merchant. Notwithstanding, the Merchant's filing for bankruptcy shall not constitute an event of default under this Agreement. 2,10 Unencumbered Receipts. Merchant has good, complete, unencumberedand marketable title to all Receipts and all collateral in which AFC 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 AFC or any other rights or interests that may be inconsistent with the transactions contemplated with, or adverse to the interests of AFC. 2.11 Business Purpose. Merchant is a valid business in good standing under the laws of the jurisdictions in which it is orgamzed and/or operates, and Merchant is entering in to this Agreement for business purposes and not as a consumer for personal. family or household purposes. 2.12 Defaults under Other Contracts. Merchant's execution of, and/or performance under this Agreement, will not cause or create an event of default by Merchant under any contract with another person or entity. 2.13 GoodFaith. Merchant and Guarantor(s)s hereby affirm that Merchant is receiving the Purchase Price and selling AFCthe Purchased Amount in good faith and will use the Purchase Price funds to maintain and grow Merchant's business. 3 Imtral FILED: MONROE COUNTY CLERK 07/02/2024 10:09 AM INDEX NO. E2024010866 DocuSign Envelope ID: NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/02/2024 3 EVENTSOFDEFAULTANDREMEDIES Default" 3.1 Events of Default. The occurrence of any of the following events shall constitute an "Event of hereunder: (a) Merchant or Guarantor(s) shall violate any term or covenant in this Agreement; (b) Any representation or warranty by Merchant or Guarantor(s) in this Agreement shall prove to have been incorrect, false or misleading in any material respect when made; (c) the sending of notice of termination by Merchant or verbally notifying AFC of its intent to breach this Agreement; (d) the Merchant fails to request a Reconciliation or Adjustments to the Remittance pursuant to Paragraphs 1.3 & 1.4 (as appropriate) within 1 business day of a Merchant's Remittance returned of insufficient funds in the Account such that the ACII of the Remittance amount was not be honored by Merchant's bank; (e) Merchant fails to provide its bank statements, and/or month to date bank activity, accounts receivable reports, and/or bank login information within two (2) business days of a request by AFC, or the merchant changes their bank login information (which was previously-provided to AFC) without providing AFC with the updated login information in writing within 48 hours of such update; (f) Merchant shall voluntarily transfer or sell all or substantially all of its assets; (g) Merchant shall make or send notice of any intended bulk sale or transfer by Merchant; (h) Merchant shall use multiple depository accounts without the prior written consent of AFC or takes any other action that intentionally interferes with or prevents AFC from receiving the Purchased Amount in accordance with the terms of this Agreement; (i) Merchant shall enter into any financing agreements with any other party including but not limited to: Loans, Merchant Cash Advances, Receivables financing, or any other agreement that will increase the total debt owed by Merchant to any other party; (j) Merchant shall change its depositing account without the prior written consent of AFC; (k) Merchant shall close its depositing account used for ACHdebits without the prior written consent of AFC; (1) Merchant's bank returns a code other than NSF cutting AFC from its collections; (m) Merchant or any Owner/ Guarantor(s), directly or indirectly, causes to be formed a new entity or otherwise becomesassociated with any new or existing entity, which operates a business similar to or competitive with that of Merchant; or (n) Merchant shall default under any of the terms, covenants and conditions of any other agreement with AFC. 3.2 Limited Personal Guaranty. Guarantor shall provide a limited guaranty of performance in connection with this Agreement ("Guaranty"). The Guaranty shall only guaranty the Merchant's performance of the covenants, representations and conditions of this Agreement and shall not guarantee the Remittance payment except upon the occurrence of an Event of Default. Upon the occurrence of an Event of Default, AFC will enforce its rights against the Guarantor(s) of this transaction. Said Guarantor(s) will be jointly and severally liable to AFC for all of AFC's losses and Guarantor(s) will be jointly and severally liable to AFC for all of AFC's losses and damages, in additional to all costs and expenses and legal fees associated with such enforcement. For the avoidance of doubt, the Guarantor shall not be liable in the event that the Merchant is not liable under this Agreement. 3.3 Remedies. Uponthe occurrence of an Event of Default that is not waived pursuant to Section 4.4. hereof, AFC 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 (1) accelerating the full uncollected Purchased Amount (2) filing the Confession of Judgment and executing thercon, and (3) enforcing the Security Agreement contained herein including any and all rights and remedies of a secured party under Uniform Commercial Code Article 9, and sending demand letters to account debtors and credit card processors. All rights, powers and remedies of AFC in connection with this Agreement maybe exercised at any time by AFC 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. Upon an Event of Default under Section 3.1(i), AFC shall be permitted to immediately and for the duration of this Agreement collect twice or three times the Remittance amount, in accordance with AFC's determmation, in its sole discretion, of the increased risk caused to AFC as a result of such Event of Default. 3.4 Collection Fees. Uponthe occurrence of an Event of Default, and AFC legal counsel to enforce this Agreement, Merchant and Guarantor(s) agree that a fee equal to 30% of the Remaining Balance (purchased amount less amount remitted by Merchant) ("Collection Fees") shall be immediately assessed Merchant and Guarantor(s) agree that the calculation for Collection Fees is reasonable. 3.5 Costs. Merchant shall pay to AFC all reasonable costs associated with (a) an Event or Default, (b) breach by Merchant of the Covenants in this Agreement and the enforcement thereof, attorneys' and(c) the enforcement of AFC's remedies set forth in this Agreement, including but not limited to court costs and fees. 3.6 Required Notifications. Merchant is required to give AFC written notice within 24 hours of any filing under Title 11 of the United States Code. Merchant is required to give AFC seven days' (7) written notice prior to the closing of any sale of all or substantially all of the Merchant's assets or stock. Failure to comply with either of these required notifications shall be deemed an Event of Default. 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 AFC. 4.2 Assignment AFC 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. All notices, requests, consents, demands and other communications hercunder shall be delivered by certified m ail, return receipt requested, to the respective parties to this Agreement at the addresses set forth in this Agreement. Notices to AFC shall become effective only upon receipt by AFC. Notices to Merchant shall become effective three days after mailing. 4.4 Waiver Remedies. No failure on the part of AFC 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. The remedies provided hereunder are cumulative and not exclusive of any remedies provided by law or equity. 4.5 Binding Effect; Governing Law, Venue and Jurisdiction. This Agreement, Security Agreement and Guaranty, Guaranty of Performance, and any and all addenda, attachments, exhibits, and other documents relating to this Agreement in any way, shall be binding upon and inute to the benefit of Merchant and Guarantor(s) on the one hand, and AFC and their respective successors and assigns, except that Merchant and Guarantor(s) shall not have the right to assign their rights hereunder or any interest herein without the prior written consent of AFC which consent may be withheld in AFC's sole discretion. AFC reserves the rights to assign this Agreement with or without prior written notice to Merchant. This Agreement, Security Agreement, Guaranty of Performance, and any and all addenda, attachments, exhibits, and other documents relating to this Agreement in any way, shall be governed by and construed in accordance with the laws of the state of New York, without regards to any applicable principles of conflicts of law. Any suit, action or proceeding arising hereunder, or the interpretation, performance or breach hereof, shall be instituted exclusively in the SupremeCourt of the State of New York (the "Acceptable Forums") and not in the federal courts located within the State of New York. The Merchant, and Guarantor(s) specifically waive their right to remove any state court action commencedby AFC and further consent to the Remandof any matter pending between any of the Parties to this Agreement to State Court. All Parties to this Agreement, hereby acknowledge and agree that the Acceptable Forums are convenient for the resolution of any disputes, submit to their jurisdiction and waive any and all rights to object to jurisdiction or venue in same. Merchant and Guarantor(s) hereby waive all formal service of process including but not limited to personal service and agree that the mailing of any Summons and Complaint in any proceeding commencedby AFC by certified o r registered ail, m return receipt requested to the Mailing Address listed on this Agreement ,or via email to the Email Address listed on this Agreement, or any other process required by any such court 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, but without invalidating service performed in accordance with such other provisions. 4.6 Survival of Representation, etc. 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. attorneys' 4.7 Interpretation. All Parties hereto have reviewed this Agreement with an attorney of their choice and have relied only upon their own guidance and advice. This Agreement shall not be construed as against the preparing party. 4.8 Sever ability. In case any of the provisions of this Agreement are found to be invalid, illegal or unenforceable, the validity, legality and enforce-ability of the remaining provisions of this Agreement shall not be affected or impaired in any way. 4.8 Sever ability. In case any of the provisions of this Agreement are found to be invalid, illegal or unenforceable, the validity, legality and enforce-ability of the remaining provisions of this Agreement shall not be affected or impaired in any way. 4.9 Entin Agreement. Any provision hereof prohibited by law shall be ineffective only to the extent of such prohibition without invalidating the remaining provisions hereof. This Agreement, including but not limited to the Security Agreem