Preview
FILED: KINGS COUNTY CLERK 07/02/2024 11:59 AM INDEX NO. 518042/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/02/2024
FUji WESTFUNDINGLLC
200 Central Avenue, Farmingdale, NJ 07727
(848) 373-8913
MERCHANT
STANDARD CASHADVANCE
AGREEMENT
This is an Agreement dated 01/24/2024 by and between FUji WESTFUNDING LLC ("FWF") and each
merchant listed below (the "Merchant").
Merchant's Legal Name: DIRT CHEAPDEMOLITIONINC
D/B/A/: DIRT CHEAPDEMOLITIONINC Fed ID #:
Type of Entity: Corporation Limited Liability Company Partnership OSole proprietor
Business Address: 3935 AVENIDAPALOVERDE City: BONITA State: CA Zip: 91902
Contact Address: 3935 AVENIDAPALOVERDE City: BONITA State: CA Zip: 91902
Email Address: Phone Number:
Purchase Price
This is the amount being paid to Merchant(s) for the ReceivaMesPurchased Amount (defined below). This amount maybe $ 70,000.00
paid in installmentsif there is an Addendumstating that it will be paid in installments.
Receivables Purchased Amount
This is the amount of Receivables (defined in Section 1 below) being sold. This amount maybe sold in installments if there is $ 104,930.00
an Addendumstating that it will be sold in installments.
Specified Percentage 24 %
This is the percentage of Receivades (defined below) to be delivered until the ReceivaMesPurchased Amount is paid in full.
Net Funds Provided
This is the netamount being paid to or on behalf of Merchant(s) after deduction of applicable fees listed in Section 2 below. 63,000.00
This amount maybe paid in installments if there is an Addendumstating that it will be paid in installments.
Net Amount to Be Received Directly by Merchant(s)
This is the netamount being received directly by Merchant(s) after deduction of applicade fees listed in Section 2 below and
the payment of any part of the Purchase Price elsewhere pursuant to any Addendumto this Agreement. This amount may
$ 10,141.40
be paid in installments if there is an Addendumstating that it will be paid in installments. If any deduction is being made
from the Purchase Price to pay off another odigation by Merchant(s), then the Net Amount to be Received Directly by
Merchant(s) is subject to change based on any change in the amount of the other obligation(s) to be paid off.
Initial Estimated Payment 1,399.06
This is only applicableif an Addendumfor Payments is being signed. This is the initial amount of periodic payments
Estimated
collected from Merchant(s) as an approximation of no more than the Specified Percentage of the Receivodes and is subject DAY
er
to reconciliation as set forth in Section 4 below.
I have and agree to the terms and conditions set forth above:
Name: DANIELJOSEPHCANNON Name:
Title: OWNER Title:
Date: 01/24/2024 Date: 01/24/2024
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FILED: KINGS COUNTY CLERK 07/02/2024 11:59 AM INDEX NO. 518042/2024
NYSCEF DOC. NO. 2 STANDARD MERCHANT CASH ADVANCE AGREEMENT RECEIVED NYSCEF: 07/02/2024
TERMS AND CONDITIONS
1. Sale of Future Receipts. Merchant(s) hereby sell, assign, and transfer to FWF (making FWF the absolute owner) in
consideration of the funds provided (“Purchase Price”) specified above, all of each Merchant’s future accounts, contract rights, and
other obligations arising from or relating to the payment of monies from each Merchant’s customers and/or other third party payors
(the “Receivables”, defined as all payments made by cash, check, credit or debit card, electronic transfer, or other form of monetary
payment in the ordinary course of each merchant’s business), for the payment of each Merchant’s sale of goods or services until the
amount specified above (the “Receivables Purchased Amount”) has been delivered by Merchant(s) to FWF. Each Merchant hereby
acknowledges that until the Receivables Purchased Amount has been received in full by FWF, each Merchant’s Receivables, up to the
balance of the Receivables Purchased Amount, are the property of FWF and not the property of any Merchant. Each Merchant agrees
that it is a fiduciary for FWF and that each Merchant will hold Receivables in trust for FWF in its capacity as a fiduciary for FWF.
The Receivables Purchased Amount shall be paid to FWF by each Merchant irrevocably authorizing only one depositing
account acceptable to FWF (the “Account”) to remit the percentage specified above (the “Specified Percentage”) of each Merchant’s
settlement amounts due from each transaction, until such time as FWF receives payment in full of the Receivables Purchased Amount.
Each Merchant hereby authorizes FWF to ACH debit the specified remittances and any applicable fees listed in Section 2 from the
Account on a daily basis as of the next business day after the date of this Agreement and will provide FWF with all required access
codes and monthly bank statements. Each Merchant understands that it will be held responsible for any fees resulting from a rejected
ACH attempt or an Event of Default (see Section 2). FWF is not responsible for any overdrafts or rejected transactions that may result
from FWF’s ACH debiting the Specified Percentage amounts under the terms of this Agreement.
2. Additional Fees. In addition to the Receivables Purchased Amount, each Merchant will be held responsible to FWF for the
following fees, where applicable:
7,000.00
A. $_________________ - to cover underwriting and the ACH debit program, as well as related expenses. This will be deducted
from payment of the Purchase Price.
B. Wire Fee - Merchant(s) shall receive funding electronically to the Account and will be charged $50.00 for a Fed Wire or
$0.00 for a bank ACH. This will be deducted from payment of the Purchase Price.
C. Blocked Account/Default - $2,500.00 - If FWF considers an Event of Default to have taken place under Section 32.
D. UCC Fee - $195.00 – to cover FWF filing a UCC-1 financing statement to secure its interest in the Receivables Purchased
Amount. A $195.00 UCC termination fee will be charged if a UCC filing is terminated.
E. Court costs, arbitration fees, collection agency fees, attorney fees, expert fees, and any other expenses incurred in litigation,
arbitration, or the enforcement of any of FWF’s legal or contractual rights against each Merchant and/or each Guarantor, if required,
as explained in other Sections of this Agreement.
3. Cap on Collection of the Receivables Purchased Amount. The amount that FWF will collect from Merchant(s) towards the
Receivables Purchased Amount during any specific ___ DAY 1,399.06
will be capped at $_________________ (the “Cap”). If the
DAY
Specified Percentage of all Receivables for a specific _________________ is less than the Cap, then in addition to the Specified
DAY
Percentage of Receivables for that _________________, , FWF will be permitted to collect any Receivables it did not previously collect
DAY
due to the Cap such that the total amount collected during that _________________ does not exceed the Cap. The Cap is not applicable
to make up for a business day on which FWF is closed and does not ACH debit the Account, to subsequent attempts to collect a rejected
or blocked ACH payment, to debit any amount due pursuant to a reconciliation as set forth in Section 4, for the collection of any of the
fees listed in Section 2, or if any Event of Default listed in Section 32 is considered by FWF to have taken place.
4. Reconciliations. Any Merchant may request that FWF conduct a reconciliation in order to ensure that the amount that FWF
has collected equals the Specified Percentage of Merchant(s)’s Receivables under this Agreement. A request for a reconciliation by any
Merchant must be made by giving written notice of the request to FWF or by sending an e-mail to subs@fujifunding.com stating that
a reconciliation is being requested. In order to effectuate the reconciliation, any Merchant must produce with its request the login and
password for the Account and any and all statements covering the period from the date of this Agreement through the date of the
I have read and agree to the terms and conditions set forth above:
atM
________________________________________________ ________________________________________________
Name: __________________________________________
DANIEL JOSEPH CANNON Name: __________________________________________
Title: ___________________________________________
OWNER Title: ___________________________________________
Date: ___________________________________________
01/24/2024 Date: ___________________________________________
01/24/2024
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request for a reconciliation. FWF will complete each reconciliation requested by any Merchant within two business days after receipt
of proper notice of a request for one accompanied by the information and documents required for it. FWF may also conduct a
reconciliation on its own at any time by reviewing Merchant(s)’s Receivables covering the period from the date of this Agreement until
the date of initiation of the reconciliation, each such reconciliation will be completed within two business days after its initiation, and
FWF will give each Merchant written notice of the determination made based on the reconciliation within one business day after its
completion. If a reconciliation determines that FWF collected more than it was entitled to, then FWF will credit to the Account all
amounts to which FWF was not entitled. If a reconciliation determines that FWF collected less than it was entitled to, then FWF will
debit from the Account all additional amounts to which FWF was entitled. Nothing herein limits the amount of times that a
reconciliation may be requested or conducted.
5. Prepayments. Although there is no obligation to do so, any Merchant may prepay any amount towards the Receivables
Purchased Amount. There will be no penalty for any prepayment made by any Merchant. Any Merchant may elect to terminate this
Agreement by prepaying FWF the amount of the balance of the Receivables Purchased Amount at that time.
6. Merchant Deposit Agreement. Merchant(s) shall appoint a bank acceptable to FWF, to obtain electronic fund transfer
services and/or “ACH” payments. Merchant(s) shall provide FWF and/or its authorized agent with all of the information, authorizations,
and passwords necessary to verify each Merchant’s Receivables. Merchant(s) shall authorize FWF and/or its agent(s) to deduct the
amounts owed to FWF for the Receivables as specified herein from settlement amounts which would otherwise be due to each
Merchant and to pay such amounts to FWF by permitting FWF to withdraw the Specified Percentage by ACH debiting of the account.
The authorization shall be irrevocable absent FWF’s written consent.
7. Term of Agreement. The term of this Agreement is indefinite and shall continue until FWF receives the full Receivables
Purchased Amount, or earlier if terminated pursuant to any provision of this Agreement. The provisions of Sections 4, 6, 7, 8, 10, 11,
13, 14, 15, 17, 18, 19, 22, 23, 27, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, and 55
shall survive any termination of this Agreement.
8. Ordinary Course of Business. Each Merchant acknowledges that it is entering into this Agreement in the ordinary course of
its business and that the payments to be made from each Merchant to FWF under this Agreement are being made in the ordinary
course of each Merchant’s business.
9. Financial Condition. Each Merchant and each Guarantor (Guarantor being defined as each signatory to the Guarantee of
this Agreement) authorizes FWF and its agent(s) to investigate each Merchant’s financial responsibility and history, and will provide to
FWF any bank or financial statements, tax returns, and other documents and records, as FWF deems necessary prior to or at any time
after execution of this Agreement. A photocopy of this authorization will be deemed as acceptable for release of financial information.
FWF is authorized to update such information and financial profiles from time to time as it deems appropriate.
10. Monitoring, Recording, and Electronic Communications. FWF may choose to monitor and/or record telephone calls with
any Merchant and its owners, employees, and agents. By signing this Agreement, each Merchant agrees that any call between FWF
and any Merchant or its representatives may be monitored and/or recorded. Each Merchant and each Guarantor grants access for
FWF to enter any Merchant’s premises and to observe any Merchant’s premises without any prior notice to any Merchant at any time
after execution of this Agreement.
FWF may use automated telephone dialing, text messaging systems, and e-mail to provide messages to Merchant(s), Owner(s)
(Owner being defined as each person who signs this Agreement on behalf of a Merchant), and Guarantor(s) about Merchant(s)’s
account. Telephone messages may be played by a machine automatically when the telephone is answered, whether answered by an
Owner, a Guarantor, or someone else. These messages may also be recorded by the recipient’s answering machine or voice mail. Each
Merchant, each Owner, and each Guarantor gives FWF permission to call or send a text message to any telephone number given to
FWF in connection with this Agreement and to play pre-recorded messages and/or send text messages with information about this
Agreement and/or any Merchant’s account over the phone. Each Merchant, each Owner, and each Guarantor also gives FWF
permission to communicate such information to them by e-mail. Each Merchant, each Owner, and each Guarantor agree that FWF will
I have read and agree to the terms and conditions set forth above:
________________________________________________ ________________________________________________
Name: __________________________________________
DANIEL JOSEPH CANNON Name: __________________________________________
Title: ___________________________________________
OWNER Title: ___________________________________________
Date: ___________________________________________
01/24/2024 Date: ___________________________________________
01/24/2024
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not be liable to any of them for any such calls or electronic communications, even if information is communicated to an unintended
recipient. Each Merchant, each Owner, and each Guarantor acknowledge that when they receive such calls or electronic
communications, they may incur a charge from the company that provides them with telecommunications, wireless, and/or Internet
services, and that FWF has no liability for any such charges.
11. Accuracy of Information Furnished by Merchant and Investigation Thereof. To the extent set forth herein, each of the
parties is obligated upon his, her, or its execution of the Agreement to all terms of the Agreement. Each Merchant and each Owner
signing this Agreement represent that he or she is authorized to sign this Agreement for each Merchant, legally binding said Merchant
to its obligations under this Agreement and that the information provided herein and in all of FWF’s documents, forms, and recorded
interview(s) is true, accurate, and complete in all respects. FWF may produce a monthly statement reflecting the delivery of the
Specified Percentage of Receivables from Merchant(s) to FWF. An investigative report may be made in connection with the Agreement.
Each Merchant and each Owner signing this Agreement authorize FWF, its agents and representatives, and any credit-reporting agency
engaged by FWF, to (i) investigate any references given or any other statements obtained from or about each Merchant or any of its
Owners for the purpose of this Agreement, and (ii) pull credit report at any time now or for so long as any Merchant and/or Owners(s)
continue to have any obligation to FWF under this Agreement or for FWF’s ability to determine any Merchant’s eligibility to enter into
any future agreement with FWF. Any misrepresentation made by any Merchant or Owner in connection with this Agreement may
constitute a separate claim for fraud or intentional misrepresentation.
Authorization for soft pulls: Each Merchant and each Owner understands that by signing this Agreement, they are providing
‘written instructions’ to FWF under the Fair Credit Reporting Act, authorizing FWF to obtain information from their personal credit
profile or other information from Experian, TransUnion, and Equifax. Each Merchant and each Guarantor authorizes FWF to obtain
such information solely to conduct a pre-qualification for credit.
Authorization for hard pulls: Each Merchant and each Owner understands that by signing this Agreement, they are providing
‘written instructions’ to FWF under the Fair Credit Reporting Act, authorizing FWF to obtain information from their personal credit
profile or other information from Experian, TransUnion, and Equifax. Each Merchant and each Guarantor authorizes FWF to obtain
such information in accordance with a merchant cash advance application.
12. Transactional History. Each Merchant authorizes its bank to provide FWF with its banking and/or credit card processing
history.
13. Indemnification. Each Merchant and each Guarantor jointly and severally indemnify and hold harmless each Merchant’s
credit card and check processors (collectively, “Processor”) and Processor’s officers, directors, and shareholders against all losses,
damages, claims, liabilities, and expenses (including reasonable attorney and expert fees) incurred by Processor resulting from (a)
claims asserted by FWF for monies owed to FWF from any Merchant and (b) actions taken by any Processor in reliance upon
information or instructions provided by FWF.
14. No Liability. In no event will FWF be liable for any claims asserted by any Merchant under any legal theory for lost profits,
lost revenues, lost business opportunities, exemplary, punitive, special, incidental, indirect, or consequential damages, each of which
is waived by each Merchant and each Guarantor.
15. Sale of Receivables. Each Merchant and FWF agree that the Purchase Price under this Agreement is in exchange for the
Receivables Purchased Amount and that such Purchase Price is not intended to be, nor shall it be construed as a loan from FWF to any
Merchant. FWF is entering into this Agreement knowing the risks that each Merchant’s business may decline or fail, resulting in FWF
not receiving the Receivables Purchased Amount. Any Merchant going bankrupt or going out of business or experiencing a slowdown
in business or a delay in collecting Receivables will not on its own without anything more be considered a breach of this Agreement.
Each Merchant agrees that the Purchase Price in exchange for the Receivables pursuant to this Agreement equals the fair market value
of such Receivables. FWF has purchased and shall own all the Receivables described in this Agreement up to the full Receivables
Purchased Amount as the Receivables are created. Payments made to FWF in respect to the full amount of the Receivables shall be
conditioned upon each Merchant’s sale of products and services and the payment therefor by each Merchant’s customers in the
manner provided in this Agreement. Although certain jurisdictions require the disclosure of an Annual Percentage Rate or APR in
I have read and agree to the terms and conditions set forth above:
________________________________________________ ________________________________________________
Name: __________________________________________
DANIEL JOSEPH CANNON Name: __________________________________________
Title: ___________________________________________
OWNER Title: ___________________________________________
Date: ___________________________________________
01/24/2024 Date: ___________________________________________
01/24/2024
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NYSCEF DOC. NO. 2 STANDARD MERCHANT CASH ADVANCE AGREEMENT RECEIVED NYSCEF: 07/02/2024
connection with this Agreement, those disclosures do not change the fact that the transaction encompassed by this Agreement is not
a loan and does not have an interest rate.
16. Power of Attorney. Each Merchant irrevocably appoints FWF as its agent and attorney-in-fact with full authority to take
any action or execute any instrument or document to settle all obligations due to FWF, or, if FWF considers an Event of Default to have
taken place under Section 32, to settle all obligations due to FWF from each Merchant, 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 (which is defined in Section
31); (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 each Merchant’s name on any invoice, bill of lading, or assignment directing customers or account
debtors to make payment directly to FWF; and (v) to file any claims or take any action or institute any proceeding which FWF may
deem necessary for the collection of any of the unpaid Receivables Purchased Amount from the Collateral, or otherwise to enforce its
rights with respect to payment of the Receivables Purchased Amount.
17. Protections Against Default. The following Protections 1 through 7 may be invoked by FWF, immediately and without
notice to any Merchant in the event FWF considers any Event of Default listed in Section 32 to have taken place.
Protection 1: The full uncollected Receivables Purchased Amount plus all fees due under this Agreement may become due and
payable in full immediately.
Protection 2. FWF may enforce the provisions of the Guarantee against Guarantor.
Protection 3. FWF may enforce its security interest in the Collateral identified in Section 31.
Protection 4. FWF may proceed to protect and enforce its rights and remedies by litigation or arbitration.
Protection 5. If requested by FWF, Merchant shall deliver to FWF an executed assignment of lease of each Merchant’s premises
in favor of FWF. Upon breach of any provision in this Section 17, FWF may exercise its rights under such assignment of lease.
Protection 6. FWF may debit any Merchant’s depository accounts wherever situated by means of ACH debit or electronic or
facsimile signature on a computer-generated check drawn on any Merchant’s bank account or otherwise, in an amount consistent with
the terms of this Agreement.
Protection 7. FWF will have the right, without waiving any of its rights and remedies and without notice to any Merchant
and/or Guarantor, to notify each Merchant’s credit card and/or check processor of the sale of Receivables hereunder and to direct
such credit card processor to make payment to FWF of all or any portion of the amounts received by such credit card processor on
behalf of each Merchant. Each Merchant hereby grants to FWF an irrevocable power-of-attorney, which power-of-attorney will be
coupled with an interest, and hereby appoints FWF and its representatives as each Merchant’s attorney-in-fact to take any and all
action necessary to direct such new or additional credit card and/or check processor to make payment to FWF as contemplated by this
Section.
18. Protection of Information. Each Merchant and each person signing this Agreement on behalf of each Merchant and/or as
Owner, in respect of himself or herself personally, authorizes FWF to disclose information concerning each Merchant, Owner and/or
Guarantor’s credit standing and business conduct to agents, affiliates, subsidiaries, and credit reporting bureaus. Each Merchant,
Guarantor, and Owner hereby waives to the maximum extent permitted by law any claim for damages against FWF or any of its
affiliates relating to any (i) investigation undertaken by or on behalf of FWF as permitted by this Agreement or (ii) disclosure of
information as permitted by this Agreement.
19. Confidentiality. Each Merchant understands and agrees that the terms and conditions of the products and services offered
by FWF, including this Agreement and any other FWF documents (collectively, “Confidential Information”) are proprietary and
confidential information of FWF. Accordingly, unless disclosure is required by law or court order, Merchant(s) shall not disclose
Confidential Information of FWF to any person other than an attorney, accountant, financial advisor, or employee of any Merchant
who needs to know such information for the purpose of advising any Merchant (“Advisor”), provided such Advisor uses such
information solely for the purpose of advising any Merchant and first agrees in writing to be bound by the terms of this Section 19.
I have read and agree to the terms and conditions set forth above:
________________________________________________ ________________________________________________
Name: __________________________________________
DANIEL JOSEPH CANNON Name: __________________________________________
Title: ___________________________________________
OWNER Title: ___________________________________________
Date: ___________________________________________
01/24/2024 Date: ___________________________________________
01/24/2024
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20. D/B/As. Each Merchant hereby acknowledges and agrees that FWF may be using “doing business as” or “d/b/a” names in
connection with various matters relating to the transaction between FWF and each Merchant, including the filing of UCC-1 financing
statements and other notices or filings.
21. Financial Condition and Financial Information. Each Merchant represents, warrants, and covenants that its bank and
financial statements, copies of which have been furnished to FWF, and future statements which will be furnished hereafter at the
request of FWF, fairly represent the financial condition of each Merchant at such dates, and that since those dates there have been no
material adverse changes, financial or otherwise, in such condition, operation, or ownership of any Merchant. Each Merchant has a
continuing affirmative obligation to advise FWF of any material adverse change in its financial condition, operation, or ownership.
22. Governmental Approvals. Each Merchant represents, warrants, and covenants that it 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.
23. Authorization. Each Merchant represents, warrants, and covenants that it and each person signing this Agreement on
behalf of each Merchant has full power and authority to incur and perform the obligations under this Agreement, all of which have
been duly authorized.
24. Electronic Check Processing Agreement. Each Merchant represents, warrants, and covenants that it will not, without
FWF’s prior written consent, change its Processor, add terminals, change its financial institution or bank account, or take any other
action that could have any adverse effect upon any Merchant’s obligations under this Agreement.
25. Change of Name or Location. Each Merchant represents, warrants, and covenants that it will not conduct its business
under any name other than as disclosed to FWF or change any place(s) of its business without prior written consent from FWF.
26. Estoppel Certificate. Each Merchant represents, warrants, and covenants that it will, at any time, and from time to time,
upon at least two day’s prior written notice from FWF to that Merchant, execute, acknowledge, and deliver to FWF and/or to any other
person or entity specified by FWF, a statement certifying that this Agreement is unmodified and in full force and effect (or, if there
have been modifications, that the same is in full force and effect as modified and stating the modifications) and stating the dates which
the Receivables Purchased Amount or any portion thereof have been paid.
27. No Bankruptcy. Each Merchant represents, warrants, and covenants that as of the date of this Agreement, it does not
contemplate and has not filed any petition for bankruptcy protection under Title 11 of the United States Code and there has been no
involuntary petition brought or pending against any Merchant. Each Merchant further warrants that it does not anticipate filing any
such bankruptcy petition and it does not anticipate that an involuntary petition will be filed against it.
28. Unencumbered Receivables. Each Merchant represents, warrants, and covenants that it has good, complete, and
marketable title to all Receivables, free and clear of any and all liabilities, liens, claims, changes, restrictions, conditions, options, rights,
mortgages, security interests, equities, pledges, and encumbrances of any kind or nature whatsoever or any other rights or interests
that may be inconsistent with this Agreement or adverse to the interests of FWF, other than any for which FWF has actual or
constructive knowledge as of the date of this Agreement.
29. Stacking. Each Merchant represents, warrants, and covenants that it will not enter into with any party other than FWF any
arrangement, agreement, or commitment that relates to or involves the Receivables, whether in the form of a purchase of, a loan
against, collateral against, or the sale or purchase of credits against Receivables without the prior written consent of FWF.
30. Business Purpose. Each Merchant represents, warrants, and covenants that it is a valid business in good standing under
the laws of the jurisdictions in which it is organized and/or operates, and each Merchant is entering into this Agreement for business
purposes and not as a consumer for personal, family, or household purposes.
I have read and agree to the terms and conditions set forth above:
________________________________________________ ________________________________________________
Name: __________________________________________
DANIEL JOSEPH CANNON Name: __________________________________________
Title: ___________________________________________
OWNER Title: ___________________________________________
Date: ___________________________________________
01/24/2024 Date: ___________________________________________
01/24/2024
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31. Security Interest. To secure each Merchant’s performance obligations to FWF under this Agreement and any future
agreement with FWF, each Merchant hereby grants to FWF a security interest in collateral (the “Collateral”), that is defined as
collectively: (a) all accounts, including without limitation, all deposit accounts, accounts-receivable, and other receivables, chattel
paper, documents, and instruments, as those terms are defined by Article 9 of the Uniform Commercial Code (the “UCC”), now or
hereafter owned or acquired by any Merchant; and (b) all proceeds, as that term is defined by Article 9 of the UCC. The parties
acknowledge and agree that any security interest granted to FWF under any other agreement between any Merchant or Guarantor
and FWF (the “Cross-Collateral”) will secure the obligations hereunder and under this Agreement. Negative Pledge: Each Merchant
agrees not to create, incur, assume, or permit to exist, directly or indirectly, any lien on or with respect to any of the Collateral or the
Cross-Collateral, as applicable.
Each Merchant agrees to execute any documents or take any action in connection with this Agreement as FWF deems
necessary to perfect or maintain FWF’s first priority security interest in the Collateral and the Cross-Collateral, including the execution
of any account control agreements. Each Merchant hereby authorizes FWF to file any financing statements deemed necessary by FWF
to perfect or maintain FWF’s security interest, which financing statements may contain notification that each Merchant has granted a
negative pledge to FWF with respect to the Collateral and the Cross-Collateral, and that any subsequent lienor may be tortiously
interfering with FWF’s rights. Each Merchant shall be liable for and FWF may charge and collect all costs and expenses, including but
not limited to attorney fees, which may be incurred by FWF in protecting, preserving, and enforcing FWF’s security interest and rights.
Each Merchant further acknowledges that FWF may use another legal name and/or D/B/A or an agent when designating the Secured
Party when FWF files the above-referenced financing statement(s).
32. Events of Default. An “Event of Default” may be considered to have taken place if any of the following occur:
(1) Any representation or warranty by any Merchant to FWF that proves to have been made intentionally false or misleading
in any material respect when made;
(2) Any Merchant changes the Account without providing written notice to FWF within one business day thereafter;
(3) FWF is not provided with updated login or password information for the Account within one business day after any such
change is made by any Merchant;
(4) Any Merchant fails to send bank statements, merchant account statements, or bank login information for the Account
within two business days after a written request for same is made by FWF;
(5) Any Merchant causes any ACH debit to the Account by FWF to be blocked or stopped without providing any advance
written notice to FWF, which notice may be given by e-mail to subs@fujifunding.com;
(6) Any Merchant intentionally prevents FWF from collecting any part of the Receivables Purchased Amount; or
(7) Any Merchant causes any ACH debit to the Account by any person or entity to be stopped or otherwise returned that would
result in an ACH Return Code of R08, R10, or R29 and that Merchant does not within two business days thereafter provide FWF with
written notice thereof explaining why that Merchant caused the ACH debit to be stopped or otherwise returned, which notice may be
given by e-mail to subs@fujifunding.com.
33. Remedies. In case any Event of Default occurs and is not waived, FWF 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 each Merchant’s obligations hereunder, or any other legal or equitable right
or remedy. All rights, powers, and remedies of FWF in connection with this Agreement, including each Protection listed in Section 17,
may be exercised at any time by FWF after the occurrence of an Event of Default, are cumulative and not exclusive, and will be in
addition to any other rights, powers, or remedies provided by law or equity. In case any Event of Default occurs and is not waived, FWF
may elect that Merchant(s) be required to pay to FWF 25% of the unpaid balance of the Receivables Purchased Amount as liquidated
damages for any reasonable expenses incurred by FWF in connection with recovering the unpaid balance of the Receivables Purchased
Amount (“Reasonable Expenses”), FWF will not be required to itemize of prove its Reasonable Expenses, and all Merchant(s) and all
Guarantor(s) agree that the Reasonable Expenses bear a reasonable relationship to FWF’s actual expenses incurred in connection with
recovering the unpaid balance of the Receivables Purchased Amount.
I have read and agree to the terms and conditions set forth above:
________________________________________________ ________________________________________________
Name: __________________________________________
DANIEL JOSEPH CANNON Name: __________________________________________
Title: ___________________________________________
OWNER Title: ___________________________________________
Date: ___________________________________________
01/24/2024 Date: ___________________________________________
01/24/2024
7
FILED: KINGS COUNTY CLERK 07/02/2024 11:59 AM INDEX NO. 518042/2024
NYSCEF DOC. NO. 2 STANDARD MERCHANT CASH ADVANCE AGREEMENT RECEIVED NYSCEF: 07/02/2024
34. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors
and assigns, except that Merchant(s) shall not have the right to assign its rights hereunder or any interest herein without the prior
written consent of FWF, which consent may be withheld in FWF’s sole discretion. FWF may assign, transfer, or sell its rights under this
Agreement, including, without limitation, its rights to receive the Receivables Purchased Amount, and its rights under Section 31 of
this Agreement, the Guarantee, and any other agreement, instrument, or document executed in connection with the transactions
contemplated by this Agreement (a “Related Agreement”), or delegate its duties hereunder or thereunder, either in whole or in part.
From and after the effective date of any such assignment or transfer by FWF, whether or not any Merchant has actual notice thereof,
this Agreement and each Related Agreement shall be deemed amended and modified (without the need for any further action on the
part of any Merchant or FWF) such that the assignee shall be deemed a party to this Agreement and any such Related Agreement and,
to the extent provided in the assignment document between FWF and such assignee (the “Assignment Agreement”), have the rights
and obligations of FWF under this Agreement and such Related Agreements with respect to the portion of the Receivables Purchased
Amount set forth in such Assignment Agreement, including but not limited to rights in the Receivables, Collateral and Additional
Collateral, the benefit of each Guarantor’s guaranty regarding the full and prompt performance of every obligation that is a subject of
the Guarantee, FWF’s rights under Section 17 of this Agreement (Protections Against Default), and to receive damages from any
Merchant following a breach of this Agreement by any Merchant. In connection with such assignment, FWF may disclose all
information that FWF has relating to any Merchant or its business. Each Merchant agrees to acknowledge any such assignment in
writing upon FWF’s request.
35. Notices. All notices, requests, consents, demands, and other communications hereunder shall be delivered by certified
mail, return receipt requested, or by overnight delivery with signature confirmation to the respective parties to this Agreement at their
addresses set forth in this Agreement and shall become effective only upon receipt. Written notice may also be given to any Merchant
or Guarantor by e-mail to the E-mail Address listed on the first page of this Agreement or by text message to the Phone Number listed
on the first page of this Agreement if that phone number is for a mobile phone. Each Merchant must set its spam or junk mail filter to
accept e-mails sent by subs@fujifunding.com and its domain. This Section is not applicable to service of process or notices in any legal
proceedings.
36. Choice of Law. This Agreement, any dispute or claim relating hereto, whether sounding in contract, tort, law, equity, or
otherwise, the relationship between FWF and each Merchant, and the relationship between FWF and each Guarantor will be governed
by and construed in accordance with the laws of the State of New York, without regard to any applicable principles of conflict of laws.
Each Merchant represents that it does not have a principal place of business located in the Commonwealth of Virginia and that
therefore the provisions of Chapter 22.1 of Title 6.2 of the Virginia Code are not applicable to this Agreement.
37. Venue and Forum Selection. Any litigation relating to this Agreement, whether sounding in contract, tort, law, equity, or
otherwise, or involving FWF on one side and any Merchant or any Guarantor on the other must be commenced and maintained in any
court located in the Counties of Kings, Nassau, New York, or Sullivan in the State of New York (the “Acceptable Forums”). The parties
agree that the Acceptable Forums are convenient, submit to the jurisdiction of the Acceptable Forums, and waive any and all objections
to the jurisdiction or venue of the Acceptable Forums. If any litigation is initiated in any other venue or forum, the parties waive any
right to oppose any motion or application made by any party to transfer such litigation to an Acceptable Forum. The parties agree that
the Civil Court of the City of New York (“Civil Court”) will have jurisdiction over any litigation relating to this Agreement that is within
the jurisdictional limit of the Civil Court. Notwithstanding any provision in this Agreement to the contrary, in addition to the Acceptable
Forums, any action or proceeding to enforce a judgment or arbitration award against any Merchant or Guarantor or to restrain or
collect any amount due to FWF may be commenced and maintained in any other court that would otherwise be of competent
jurisdiction, and each Merchant and each Guarantor agree that those courts are convenient, submit to the jurisdiction of those courts,
waive any and all objections to the jurisdiction or venue of those courts, and may oppose any motion or application made by any party
to transfer any such litigation to an Acceptable Forum.
38. Jury Waiver. The parties agree to waive trial by jury in any dispute between them.
I have read and agree to the terms and conditions set forth above:
________________________________________________ ________________________________________________
Name: __________________________________________
DANIEL JOSEPH CANNON Name: __________________________________________
Title: ___________________________________________
OWNER Title: ___________________________________________
Date: ___________________________________________
01/24/2024 Date: ___________________________________________
01/24/2024
8
FILED: KINGS COUNTY CLERK 07/02/2024 11:59 AM INDEX NO. 518042/2024
NYSCEF DOC. NO. 2 STANDARD MERCHANT CASH ADVANCE AGREEMENT RECEIVED NYSCEF: 07/02/2024
39. Counterclaim Waiver. In any litigation or arbitration commenced by FWF, each Merchant and each Guarantor will not be
permitted to interpose any counterclaim.
40. Statutes of Limitations. Each Merchant and each Guarantor agree that any claim, whether sounding in contract, tort, law,
equity, or otherwise, that is not asserted against FWF within one year after its accrual will be time barred. Notwithstanding any
provision in this Agreement to the contrary, each Merchant and each Guarantor agree that any application made by any of them to
stay an arbitration initiated against any of them by FWF will be time barred if made more than 20 days after receip
Preview
FILED: KINGS COUNTY CLERK 07/02/2024 11:59 AM INDEX NO. 518042/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/02/2024 FUji WESTFUNDINGLLC 200 Central Avenue, Farmingdale, NJ 07727 (848) 373-8913 MERCHANT STANDARD CASHADVANCE AGREEMENT This is an Agreement dated 01/24/2024 by and between FUji WESTFUNDING LLC ("FWF") and each merchant listed below (the "Merchant"). Merchant's Legal Name: DIRT CHEAPDEMOLITIONINC D/B/A/: DIRT CHEAPDEMOLITIONINC Fed ID #: Type of Entity: Corporation Limited Liability Company Partnership OSole proprietor Business Address: 3935 AVENIDAPALOVERDE City: BONITA State: CA Zip: 91902 Contact Address: 3935 AVENIDAPALOVERDE City: BONITA State: CA Zip: 91902 Email Address: Phone Number: Purchase Price This is the amount being paid to Merchant(s) for the ReceivaMesPurchased Amount (defined below). This amount maybe $ 70,000.00 paid in installmentsif there is an Addendumstating that it will be paid in installments. Receivables Purchased Amount This is the amount of Receivables (defined in Section 1 below) being sold. This amount maybe sold in installments if there is $ 104,930.00 an Addendumstating that it will be sold in installments. Specified Percentage 24 % This is the percentage of Receivades (defined below) to be delivered until the ReceivaMesPurchased Amount is paid in full. Net Funds Provided This is the netamount being paid to or on behalf of Merchant(s) after deduction of applicable fees listed in Section 2 below. 63,000.00 This amount maybe paid in installments if there is an Addendumstating that it will be paid in installments. Net Amount to Be Received Directly by Merchant(s) This is the netamount being received directly by Merchant(s) after deduction of applicade fees listed in Section 2 below and the payment of any part of the Purchase Price elsewhere pursuant to any Addendumto this Agreement. This amount may $ 10,141.40 be paid in installments if there is an Addendumstating that it will be paid in installments. If any deduction is being made from the Purchase Price to pay off another odigation by Merchant(s), then the Net Amount to be Received Directly by Merchant(s) is subject to change based on any change in the amount of the other obligation(s) to be paid off. Initial Estimated Payment 1,399.06 This is only applicableif an Addendumfor Payments is being signed. This is the initial amount of periodic payments Estimated collected from Merchant(s) as an approximation of no more than the Specified Percentage of the Receivodes and is subject DAY er to reconciliation as set forth in Section 4 below. I have and agree to the terms and conditions set forth above: Name: DANIELJOSEPHCANNON Name: Title: OWNER Title: Date: 01/24/2024 Date: 01/24/2024 1 FILED: KINGS COUNTY CLERK 07/02/2024 11:59 AM INDEX NO. 518042/2024 NYSCEF DOC. NO. 2 STANDARD MERCHANT CASH ADVANCE AGREEMENT RECEIVED NYSCEF: 07/02/2024 TERMS AND CONDITIONS 1. Sale of Future Receipts. Merchant(s) hereby sell, assign, and transfer to FWF (making FWF the absolute owner) in consideration of the funds provided (“Purchase Price”) specified above, all of each Merchant’s future accounts, contract rights, and other obligations arising from or relating to the payment of monies from each Merchant’s customers and/or other third party payors (the “Receivables”, defined as all payments made by cash, check, credit or debit card, electronic transfer, or other form of monetary payment in the ordinary course of each merchant’s business), for the payment of each Merchant’s sale of goods or services until the amount specified above (the “Receivables Purchased Amount”) has been delivered by Merchant(s) to FWF. Each Merchant hereby acknowledges that until the Receivables Purchased Amount has been received in full by FWF, each Merchant’s Receivables, up to the balance of the Receivables Purchased Amount, are the property of FWF and not the property of any Merchant. Each Merchant agrees that it is a fiduciary for FWF and that each Merchant will hold Receivables in trust for FWF in its capacity as a fiduciary for FWF. The Receivables Purchased Amount shall be paid to FWF by each Merchant irrevocably authorizing only one depositing account acceptable to FWF (the “Account”) to remit the percentage specified above (the “Specified Percentage”) of each Merchant’s settlement amounts due from each transaction, until such time as FWF receives payment in full of the Receivables Purchased Amount. Each Merchant hereby authorizes FWF to ACH debit the specified remittances and any applicable fees listed in Section 2 from the Account on a daily basis as of the next business day after the date of this Agreement and will provide FWF with all required access codes and monthly bank statements. Each Merchant understands that it will be held responsible for any fees resulting from a rejected ACH attempt or an Event of Default (see Section 2). FWF is not responsible for any overdrafts or rejected transactions that may result from FWF’s ACH debiting the Specified Percentage amounts under the terms of this Agreement. 2. Additional Fees. In addition to the Receivables Purchased Amount, each Merchant will be held responsible to FWF for the following fees, where applicable: 7,000.00 A. $_________________ - to cover underwriting and the ACH debit program, as well as related expenses. This will be deducted from payment of the Purchase Price. B. Wire Fee - Merchant(s) shall receive funding electronically to the Account and will be charged $50.00 for a Fed Wire or $0.00 for a bank ACH. This will be deducted from payment of the Purchase Price. C. Blocked Account/Default - $2,500.00 - If FWF considers an Event of Default to have taken place under Section 32. D. UCC Fee - $195.00 – to cover FWF filing a UCC-1 financing statement to secure its interest in the Receivables Purchased Amount. A $195.00 UCC termination fee will be charged if a UCC filing is terminated. E. Court costs, arbitration fees, collection agency fees, attorney fees, expert fees, and any other expenses incurred in litigation, arbitration, or the enforcement of any of FWF’s legal or contractual rights against each Merchant and/or each Guarantor, if required, as explained in other Sections of this Agreement. 3. Cap on Collection of the Receivables Purchased Amount. The amount that FWF will collect from Merchant(s) towards the Receivables Purchased Amount during any specific ___ DAY 1,399.06 will be capped at $_________________ (the “Cap”). If the DAY Specified Percentage of all Receivables for a specific _________________ is less than the Cap, then in addition to the Specified DAY Percentage of Receivables for that _________________, , FWF will be permitted to collect any Receivables it did not previously collect DAY due to the Cap such that the total amount collected during that _________________ does not exceed the Cap. The Cap is not applicable to make up for a business day on which FWF is closed and does not ACH debit the Account, to subsequent attempts to collect a rejected or blocked ACH payment, to debit any amount due pursuant to a reconciliation as set forth in Section 4, for the collection of any of the fees listed in Section 2, or if any Event of Default listed in Section 32 is considered by FWF to have taken place. 4. Reconciliations. Any Merchant may request that FWF conduct a reconciliation in order to ensure that the amount that FWF has collected equals the Specified Percentage of Merchant(s)’s Receivables under this Agreement. A request for a reconciliation by any Merchant must be made by giving written notice of the request to FWF or by sending an e-mail to subs@fujifunding.com stating that a reconciliation is being requested. In order to effectuate the reconciliation, any Merchant must produce with its request the login and password for the Account and any and all statements covering the period from the date of this Agreement through the date of the I have read and agree to the terms and conditions set forth above: atM ________________________________________________ ________________________________________________ Name: __________________________________________ DANIEL JOSEPH CANNON Name: __________________________________________ Title: ___________________________________________ OWNER Title: ___________________________________________ Date: ___________________________________________ 01/24/2024 Date: ___________________________________________ 01/24/2024 2 FILED: KINGS COUNTY CLERK 07/02/2024 11:59 AM INDEX NO. 518042/2024 NYSCEF DOC. NO. 2 STANDARD MERCHANT CASH ADVANCE AGREEMENT RECEIVED NYSCEF: 07/02/2024 request for a reconciliation. FWF will complete each reconciliation requested by any Merchant within two business days after receipt of proper notice of a request for one accompanied by the information and documents required for it. FWF may also conduct a reconciliation on its own at any time by reviewing Merchant(s)’s Receivables covering the period from the date of this Agreement until the date of initiation of the reconciliation, each such reconciliation will be completed within two business days after its initiation, and FWF will give each Merchant written notice of the determination made based on the reconciliation within one business day after its completion. If a reconciliation determines that FWF collected more than it was entitled to, then FWF will credit to the Account all amounts to which FWF was not entitled. If a reconciliation determines that FWF collected less than it was entitled to, then FWF will debit from the Account all additional amounts to which FWF was entitled. Nothing herein limits the amount of times that a reconciliation may be requested or conducted. 5. Prepayments. Although there is no obligation to do so, any Merchant may prepay any amount towards the Receivables Purchased Amount. There will be no penalty for any prepayment made by any Merchant. Any Merchant may elect to terminate this Agreement by prepaying FWF the amount of the balance of the Receivables Purchased Amount at that time. 6. Merchant Deposit Agreement. Merchant(s) shall appoint a bank acceptable to FWF, to obtain electronic fund transfer services and/or “ACH” payments. Merchant(s) shall provide FWF and/or its authorized agent with all of the information, authorizations, and passwords necessary to verify each Merchant’s Receivables. Merchant(s) shall authorize FWF and/or its agent(s) to deduct the amounts owed to FWF for the Receivables as specified herein from settlement amounts which would otherwise be due to each Merchant and to pay such amounts to FWF by permitting FWF to withdraw the Specified Percentage by ACH debiting of the account. The authorization shall be irrevocable absent FWF’s written consent. 7. Term of Agreement. The term of this Agreement is indefinite and shall continue until FWF receives the full Receivables Purchased Amount, or earlier if terminated pursuant to any provision of this Agreement. The provisions of Sections 4, 6, 7, 8, 10, 11, 13, 14, 15, 17, 18, 19, 22, 23, 27, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, and 55 shall survive any termination of this Agreement. 8. Ordinary Course of Business. Each Merchant acknowledges that it is entering into this Agreement in the ordinary course of its business and that the payments to be made from each Merchant to FWF under this Agreement are being made in the ordinary course of each Merchant’s business. 9. Financial Condition. Each Merchant and each Guarantor (Guarantor being defined as each signatory to the Guarantee of this Agreement) authorizes FWF and its agent(s) to investigate each Merchant’s financial responsibility and history, and will provide to FWF any bank or financial statements, tax returns, and other documents and records, as FWF deems necessary prior to or at any time after execution of this Agreement. A photocopy of this authorization will be deemed as acceptable for release of financial information. FWF is authorized to update such information and financial profiles from time to time as it deems appropriate. 10. Monitoring, Recording, and Electronic Communications. FWF may choose to monitor and/or record telephone calls with any Merchant and its owners, employees, and agents. By signing this Agreement, each Merchant agrees that any call between FWF and any Merchant or its representatives may be monitored and/or recorded. Each Merchant and each Guarantor grants access for FWF to enter any Merchant’s premises and to observe any Merchant’s premises without any prior notice to any Merchant at any time after execution of this Agreement. FWF may use automated telephone dialing, text messaging systems, and e-mail to provide messages to Merchant(s), Owner(s) (Owner being defined as each person who signs this Agreement on behalf of a Merchant), and Guarantor(s) about Merchant(s)’s account. Telephone messages may be played by a machine automatically when the telephone is answered, whether answered by an Owner, a Guarantor, or someone else. These messages may also be recorded by the recipient’s answering machine or voice mail. Each Merchant, each Owner, and each Guarantor gives FWF permission to call or send a text message to any telephone number given to FWF in connection with this Agreement and to play pre-recorded messages and/or send text messages with information about this Agreement and/or any Merchant’s account over the phone. Each Merchant, each Owner, and each Guarantor also gives FWF permission to communicate such information to them by e-mail. Each Merchant, each Owner, and each Guarantor agree that FWF will I have read and agree to the terms and conditions set forth above: ________________________________________________ ________________________________________________ Name: __________________________________________ DANIEL JOSEPH CANNON Name: __________________________________________ Title: ___________________________________________ OWNER Title: ___________________________________________ Date: ___________________________________________ 01/24/2024 Date: ___________________________________________ 01/24/2024 3 FILED: KINGS COUNTY CLERK 07/02/2024 11:59 AM INDEX NO. 518042/2024 NYSCEF DOC. NO. 2 STANDARD MERCHANT CASH ADVANCE AGREEMENT RECEIVED NYSCEF: 07/02/2024 not be liable to any of them for any such calls or electronic communications, even if information is communicated to an unintended recipient. Each Merchant, each Owner, and each Guarantor acknowledge that when they receive such calls or electronic communications, they may incur a charge from the company that provides them with telecommunications, wireless, and/or Internet services, and that FWF has no liability for any such charges. 11. Accuracy of Information Furnished by Merchant and Investigation Thereof. To the extent set forth herein, each of the parties is obligated upon his, her, or its execution of the Agreement to all terms of the Agreement. Each Merchant and each Owner signing this Agreement represent that he or she is authorized to sign this Agreement for each Merchant, legally binding said Merchant to its obligations under this Agreement and that the information provided herein and in all of FWF’s documents, forms, and recorded interview(s) is true, accurate, and complete in all respects. FWF may produce a monthly statement reflecting the delivery of the Specified Percentage of Receivables from Merchant(s) to FWF. An investigative report may be made in connection with the Agreement. Each Merchant and each Owner signing this Agreement authorize FWF, its agents and representatives, and any credit-reporting agency engaged by FWF, to (i) investigate any references given or any other statements obtained from or about each Merchant or any of its Owners for the purpose of this Agreement, and (ii) pull credit report at any time now or for so long as any Merchant and/or Owners(s) continue to have any obligation to FWF under this Agreement or for FWF’s ability to determine any Merchant’s eligibility to enter into any future agreement with FWF. Any misrepresentation made by any Merchant or Owner in connection with this Agreement may constitute a separate claim for fraud or intentional misrepresentation. Authorization for soft pulls: Each Merchant and each Owner understands that by signing this Agreement, they are providing ‘written instructions’ to FWF under the Fair Credit Reporting Act, authorizing FWF to obtain information from their personal credit profile or other information from Experian, TransUnion, and Equifax. Each Merchant and each Guarantor authorizes FWF to obtain such information solely to conduct a pre-qualification for credit. Authorization for hard pulls: Each Merchant and each Owner understands that by signing this Agreement, they are providing ‘written instructions’ to FWF under the Fair Credit Reporting Act, authorizing FWF to obtain information from their personal credit profile or other information from Experian, TransUnion, and Equifax. Each Merchant and each Guarantor authorizes FWF to obtain such information in accordance with a merchant cash advance application. 12. Transactional History. Each Merchant authorizes its bank to provide FWF with its banking and/or credit card processing history. 13. Indemnification. Each Merchant and each Guarantor jointly and severally indemnify and hold harmless each Merchant’s credit card and check processors (collectively, “Processor”) and Processor’s officers, directors, and shareholders against all losses, damages, claims, liabilities, and expenses (including reasonable attorney and expert fees) incurred by Processor resulting from (a) claims asserted by FWF for monies owed to FWF from any Merchant and (b) actions taken by any Processor in reliance upon information or instructions provided by FWF. 14. No Liability. In no event will FWF be liable for any claims asserted by any Merchant under any legal theory for lost profits, lost revenues, lost business opportunities, exemplary, punitive, special, incidental, indirect, or consequential damages, each of which is waived by each Merchant and each Guarantor. 15. Sale of Receivables. Each Merchant and FWF agree that the Purchase Price under this Agreement is in exchange for the Receivables Purchased Amount and that such Purchase Price is not intended to be, nor shall it be construed as a loan from FWF to any Merchant. FWF is entering into this Agreement knowing the risks that each Merchant’s business may decline or fail, resulting in FWF not receiving the Receivables Purchased Amount. Any Merchant going bankrupt or going out of business or experiencing a slowdown in business or a delay in collecting Receivables will not on its own without anything more be considered a breach of this Agreement. Each Merchant agrees that the Purchase Price in exchange for the Receivables pursuant to this Agreement equals the fair market value of such Receivables. FWF has purchased and shall own all the Receivables described in this Agreement up to the full Receivables Purchased Amount as the Receivables are created. Payments made to FWF in respect to the full amount of the Receivables shall be conditioned upon each Merchant’s sale of products and services and the payment therefor by each Merchant’s customers in the manner provided in this Agreement. Although certain jurisdictions require the disclosure of an Annual Percentage Rate or APR in I have read and agree to the terms and conditions set forth above: ________________________________________________ ________________________________________________ Name: __________________________________________ DANIEL JOSEPH CANNON Name: __________________________________________ Title: ___________________________________________ OWNER Title: ___________________________________________ Date: ___________________________________________ 01/24/2024 Date: ___________________________________________ 01/24/2024 4 FILED: KINGS COUNTY CLERK 07/02/2024 11:59 AM INDEX NO. 518042/2024 NYSCEF DOC. NO. 2 STANDARD MERCHANT CASH ADVANCE AGREEMENT RECEIVED NYSCEF: 07/02/2024 connection with this Agreement, those disclosures do not change the fact that the transaction encompassed by this Agreement is not a loan and does not have an interest rate. 16. Power of Attorney. Each Merchant irrevocably appoints FWF as its agent and attorney-in-fact with full authority to take any action or execute any instrument or document to settle all obligations due to FWF, or, if FWF considers an Event of Default to have taken place under Section 32, to settle all obligations due to FWF from each Merchant, 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 (which is defined in Section 31); (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 each Merchant’s name on any invoice, bill of lading, or assignment directing customers or account debtors to make payment directly to FWF; and (v) to file any claims or take any action or institute any proceeding which FWF may deem necessary for the collection of any of the unpaid Receivables Purchased Amount from the Collateral, or otherwise to enforce its rights with respect to payment of the Receivables Purchased Amount. 17. Protections Against Default. The following Protections 1 through 7 may be invoked by FWF, immediately and without notice to any Merchant in the event FWF considers any Event of Default listed in Section 32 to have taken place. Protection 1: The full uncollected Receivables Purchased Amount plus all fees due under this Agreement may become due and payable in full immediately. Protection 2. FWF may enforce the provisions of the Guarantee against Guarantor. Protection 3. FWF may enforce its security interest in the Collateral identified in Section 31. Protection 4. FWF may proceed to protect and enforce its rights and remedies by litigation or arbitration. Protection 5. If requested by FWF, Merchant shall deliver to FWF an executed assignment of lease of each Merchant’s premises in favor of FWF. Upon breach of any provision in this Section 17, FWF may exercise its rights under such assignment of lease. Protection 6. FWF may debit any Merchant’s depository accounts wherever situated by means of ACH debit or electronic or facsimile signature on a computer-generated check drawn on any Merchant’s bank account or otherwise, in an amount consistent with the terms of this Agreement. Protection 7. FWF will have the right, without waiving any of its rights and remedies and without notice to any Merchant and/or Guarantor, to notify each Merchant’s credit card and/or check processor of the sale of Receivables hereunder and to direct such credit card processor to make payment to FWF of all or any portion of the amounts received by such credit card processor on behalf of each Merchant. Each Merchant hereby grants to FWF an irrevocable power-of-attorney, which power-of-attorney will be coupled with an interest, and hereby appoints FWF and its representatives as each Merchant’s attorney-in-fact to take any and all action necessary to direct such new or additional credit card and/or check processor to make payment to FWF as contemplated by this Section. 18. Protection of Information. Each Merchant and each person signing this Agreement on behalf of each Merchant and/or as Owner, in respect of himself or herself personally, authorizes FWF to disclose information concerning each Merchant, Owner and/or Guarantor’s credit standing and business conduct to agents, affiliates, subsidiaries, and credit reporting bureaus. Each Merchant, Guarantor, and Owner hereby waives to the maximum extent permitted by law any claim for damages against FWF or any of its affiliates relating to any (i) investigation undertaken by or on behalf of FWF as permitted by this Agreement or (ii) disclosure of information as permitted by this Agreement. 19. Confidentiality. Each Merchant understands and agrees that the terms and conditions of the products and services offered by FWF, including this Agreement and any other FWF documents (collectively, “Confidential Information”) are proprietary and confidential information of FWF. Accordingly, unless disclosure is required by law or court order, Merchant(s) shall not disclose Confidential Information of FWF to any person other than an attorney, accountant, financial advisor, or employee of any Merchant who needs to know such information for the purpose of advising any Merchant (“Advisor”), provided such Advisor uses such information solely for the purpose of advising any Merchant and first agrees in writing to be bound by the terms of this Section 19. I have read and agree to the terms and conditions set forth above: ________________________________________________ ________________________________________________ Name: __________________________________________ DANIEL JOSEPH CANNON Name: __________________________________________ Title: ___________________________________________ OWNER Title: ___________________________________________ Date: ___________________________________________ 01/24/2024 Date: ___________________________________________ 01/24/2024 5 FILED: KINGS COUNTY CLERK 07/02/2024 11:59 AM INDEX NO. 518042/2024 NYSCEF DOC. NO. 2 STANDARD MERCHANT CASH ADVANCE AGREEMENT RECEIVED NYSCEF: 07/02/2024 20. D/B/As. Each Merchant hereby acknowledges and agrees that FWF may be using “doing business as” or “d/b/a” names in connection with various matters relating to the transaction between FWF and each Merchant, including the filing of UCC-1 financing statements and other notices or filings. 21. Financial Condition and Financial Information. Each Merchant represents, warrants, and covenants that its bank and financial statements, copies of which have been furnished to FWF, and future statements which will be furnished hereafter at the request of FWF, fairly represent the financial condition of each Merchant at such dates, and that since those dates there have been no material adverse changes, financial or otherwise, in such condition, operation, or ownership of any Merchant. Each Merchant has a continuing affirmative obligation to advise FWF of any material adverse change in its financial condition, operation, or ownership. 22. Governmental Approvals. Each Merchant represents, warrants, and covenants that it 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. 23. Authorization. Each Merchant represents, warrants, and covenants that it and each person signing this Agreement on behalf of each Merchant has full power and authority to incur and perform the obligations under this Agreement, all of which have been duly authorized. 24. Electronic Check Processing Agreement. Each Merchant represents, warrants, and covenants that it will not, without FWF’s prior written consent, change its Processor, add terminals, change its financial institution or bank account, or take any other action that could have any adverse effect upon any Merchant’s obligations under this Agreement. 25. Change of Name or Location. Each Merchant represents, warrants, and covenants that it will not conduct its business under any name other than as disclosed to FWF or change any place(s) of its business without prior written consent from FWF. 26. Estoppel Certificate. Each Merchant represents, warrants, and covenants that it will, at any time, and from time to time, upon at least two day’s prior written notice from FWF to that Merchant, execute, acknowledge, and deliver to FWF and/or to any other person or entity specified by FWF, a statement certifying that this Agreement is unmodified and in full force and effect (or, if there have been modifications, that the same is in full force and effect as modified and stating the modifications) and stating the dates which the Receivables Purchased Amount or any portion thereof have been paid. 27. No Bankruptcy. Each Merchant represents, warrants, and covenants that as of the date of this Agreement, it does not contemplate and has not filed any petition for bankruptcy protection under Title 11 of the United States Code and there has been no involuntary petition brought or pending against any Merchant. Each Merchant further warrants that it does not anticipate filing any such bankruptcy petition and it does not anticipate that an involuntary petition will be filed against it. 28. Unencumbered Receivables. Each Merchant represents, warrants, and covenants that it has good, complete, and marketable title to all Receivables, free and clear of any and all liabilities, liens, claims, changes, restrictions, conditions, options, rights, mortgages, security interests, equities, pledges, and encumbrances of any kind or nature whatsoever or any other rights or interests that may be inconsistent with this Agreement or adverse to the interests of FWF, other than any for which FWF has actual or constructive knowledge as of the date of this Agreement. 29. Stacking. Each Merchant represents, warrants, and covenants that it will not enter into with any party other than FWF any arrangement, agreement, or commitment that relates to or involves the Receivables, whether in the form of a purchase of, a loan against, collateral against, or the sale or purchase of credits against Receivables without the prior written consent of FWF. 30. Business Purpose. Each Merchant represents, warrants, and covenants that it is a valid business in good standing under the laws of the jurisdictions in which it is organized and/or operates, and each Merchant is entering into this Agreement for business purposes and not as a consumer for personal, family, or household purposes. I have read and agree to the terms and conditions set forth above: ________________________________________________ ________________________________________________ Name: __________________________________________ DANIEL JOSEPH CANNON Name: __________________________________________ Title: ___________________________________________ OWNER Title: ___________________________________________ Date: ___________________________________________ 01/24/2024 Date: ___________________________________________ 01/24/2024 6 FILED: KINGS COUNTY CLERK 07/02/2024 11:59 AM INDEX NO. 518042/2024 NYSCEF DOC. NO. 2 STANDARD MERCHANT CASH ADVANCE AGREEMENT RECEIVED NYSCEF: 07/02/2024 31. Security Interest. To secure each Merchant’s performance obligations to FWF under this Agreement and any future agreement with FWF, each Merchant hereby grants to FWF a security interest in collateral (the “Collateral”), that is defined as collectively: (a) all accounts, including without limitation, all deposit accounts, accounts-receivable, and other receivables, chattel paper, documents, and instruments, as those terms are defined by Article 9 of the Uniform Commercial Code (the “UCC”), now or hereafter owned or acquired by any Merchant; and (b) all proceeds, as that term is defined by Article 9 of the UCC. The parties acknowledge and agree that any security interest granted to FWF under any other agreement between any Merchant or Guarantor and FWF (the “Cross-Collateral”) will secure the obligations hereunder and under this Agreement. Negative Pledge: Each Merchant agrees not to create, incur, assume, or permit to exist, directly or indirectly, any lien on or with respect to any of the Collateral or the Cross-Collateral, as applicable. Each Merchant agrees to execute any documents or take any action in connection with this Agreement as FWF deems necessary to perfect or maintain FWF’s first priority security interest in the Collateral and the Cross-Collateral, including the execution of any account control agreements. Each Merchant hereby authorizes FWF to file any financing statements deemed necessary by FWF to perfect or maintain FWF’s security interest, which financing statements may contain notification that each Merchant has granted a negative pledge to FWF with respect to the Collateral and the Cross-Collateral, and that any subsequent lienor may be tortiously interfering with FWF’s rights. Each Merchant shall be liable for and FWF may charge and collect all costs and expenses, including but not limited to attorney fees, which may be incurred by FWF in protecting, preserving, and enforcing FWF’s security interest and rights. Each Merchant further acknowledges that FWF may use another legal name and/or D/B/A or an agent when designating the Secured Party when FWF files the above-referenced financing statement(s). 32. Events of Default. An “Event of Default” may be considered to have taken place if any of the following occur: (1) Any representation or warranty by any Merchant to FWF that proves to have been made intentionally false or misleading in any material respect when made; (2) Any Merchant changes the Account without providing written notice to FWF within one business day thereafter; (3) FWF is not provided with updated login or password information for the Account within one business day after any such change is made by any Merchant; (4) Any Merchant fails to send bank statements, merchant account statements, or bank login information for the Account within two business days after a written request for same is made by FWF; (5) Any Merchant causes any ACH debit to the Account by FWF to be blocked or stopped without providing any advance written notice to FWF, which notice may be given by e-mail to subs@fujifunding.com; (6) Any Merchant intentionally prevents FWF from collecting any part of the Receivables Purchased Amount; or (7) Any Merchant causes any ACH debit to the Account by any person or entity to be stopped or otherwise returned that would result in an ACH Return Code of R08, R10, or R29 and that Merchant does not within two business days thereafter provide FWF with written notice thereof explaining why that Merchant caused the ACH debit to be stopped or otherwise returned, which notice may be given by e-mail to subs@fujifunding.com. 33. Remedies. In case any Event of Default occurs and is not waived, FWF 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 each Merchant’s obligations hereunder, or any other legal or equitable right or remedy. All rights, powers, and remedies of FWF in connection with this Agreement, including each Protection listed in Section 17, may be exercised at any time by FWF after the occurrence of an Event of Default, are cumulative and not exclusive, and will be in addition to any other rights, powers, or remedies provided by law or equity. In case any Event of Default occurs and is not waived, FWF may elect that Merchant(s) be required to pay to FWF 25% of the unpaid balance of the Receivables Purchased Amount as liquidated damages for any reasonable expenses incurred by FWF in connection with recovering the unpaid balance of the Receivables Purchased Amount (“Reasonable Expenses”), FWF will not be required to itemize of prove its Reasonable Expenses, and all Merchant(s) and all Guarantor(s) agree that the Reasonable Expenses bear a reasonable relationship to FWF’s actual expenses incurred in connection with recovering the unpaid balance of the Receivables Purchased Amount. I have read and agree to the terms and conditions set forth above: ________________________________________________ ________________________________________________ Name: __________________________________________ DANIEL JOSEPH CANNON Name: __________________________________________ Title: ___________________________________________ OWNER Title: ___________________________________________ Date: ___________________________________________ 01/24/2024 Date: ___________________________________________ 01/24/2024 7 FILED: KINGS COUNTY CLERK 07/02/2024 11:59 AM INDEX NO. 518042/2024 NYSCEF DOC. NO. 2 STANDARD MERCHANT CASH ADVANCE AGREEMENT RECEIVED NYSCEF: 07/02/2024 34. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns, except that Merchant(s) shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of FWF, which consent may be withheld in FWF’s sole discretion. FWF may assign, transfer, or sell its rights under this Agreement, including, without limitation, its rights to receive the Receivables Purchased Amount, and its rights under Section 31 of this Agreement, the Guarantee, and any other agreement, instrument, or document executed in connection with the transactions contemplated by this Agreement (a “Related Agreement”), or delegate its duties hereunder or thereunder, either in whole or in part. From and after the effective date of any such assignment or transfer by FWF, whether or not any Merchant has actual notice thereof, this Agreement and each Related Agreement shall be deemed amended and modified (without the need for any further action on the part of any Merchant or FWF) such that the assignee shall be deemed a party to this Agreement and any such Related Agreement and, to the extent provided in the assignment document between FWF and such assignee (the “Assignment Agreement”), have the rights and obligations of FWF under this Agreement and such Related Agreements with respect to the portion of the Receivables Purchased Amount set forth in such Assignment Agreement, including but not limited to rights in the Receivables, Collateral and Additional Collateral, the benefit of each Guarantor’s guaranty regarding the full and prompt performance of every obligation that is a subject of the Guarantee, FWF’s rights under Section 17 of this Agreement (Protections Against Default), and to receive damages from any Merchant following a breach of this Agreement by any Merchant. In connection with such assignment, FWF may disclose all information that FWF has relating to any Merchant or its business. Each Merchant agrees to acknowledge any such assignment in writing upon FWF’s request. 35. Notices. All notices, requests, consents, demands, and other communications hereunder shall be delivered by certified mail, return receipt requested, or by overnight delivery with signature confirmation to the respective parties to this Agreement at their addresses set forth in this Agreement and shall become effective only upon receipt. Written notice may also be given to any Merchant or Guarantor by e-mail to the E-mail Address listed on the first page of this Agreement or by text message to the Phone Number listed on the first page of this Agreement if that phone number is for a mobile phone. Each Merchant must set its spam or junk mail filter to accept e-mails sent by subs@fujifunding.com and its domain. This Section is not applicable to service of process or notices in any legal proceedings. 36. Choice of Law. This Agreement, any dispute or claim relating hereto, whether sounding in contract, tort, law, equity, or otherwise, the relationship between FWF and each Merchant, and the relationship between FWF and each Guarantor will be governed by and construed in accordance with the laws of the State of New York, without regard to any applicable principles of conflict of laws. Each Merchant represents that it does not have a principal place of business located in the Commonwealth of Virginia and that therefore the provisions of Chapter 22.1 of Title 6.2 of the Virginia Code are not applicable to this Agreement. 37. Venue and Forum Selection. Any litigation relating to this Agreement, whether sounding in contract, tort, law, equity, or otherwise, or involving FWF on one side and any Merchant or any Guarantor on the other must be commenced and maintained in any court located in the Counties of Kings, Nassau, New York, or Sullivan in the State of New York (the “Acceptable Forums”). The parties agree that the Acceptable Forums are convenient, submit to the jurisdiction of the Acceptable Forums, and waive any and all objections to the jurisdiction or venue of the Acceptable Forums. If any litigation is initiated in any other venue or forum, the parties waive any right to oppose any motion or application made by any party to transfer such litigation to an Acceptable Forum. The parties agree that the Civil Court of the City of New York (“Civil Court”) will have jurisdiction over any litigation relating to this Agreement that is within the jurisdictional limit of the Civil Court. Notwithstanding any provision in this Agreement to the contrary, in addition to the Acceptable Forums, any action or proceeding to enforce a judgment or arbitration award against any Merchant or Guarantor or to restrain or collect any amount due to FWF may be commenced and maintained in any other court that would otherwise be of competent jurisdiction, and each Merchant and each Guarantor agree that those courts are convenient, submit to the jurisdiction of those courts, waive any and all objections to the jurisdiction or venue of those courts, and may oppose any motion or application made by any party to transfer any such litigation to an Acceptable Forum. 38. Jury Waiver. The parties agree to waive trial by jury in any dispute between them. I have read and agree to the terms and conditions set forth above: ________________________________________________ ________________________________________________ Name: __________________________________________ DANIEL JOSEPH CANNON Name: __________________________________________ Title: ___________________________________________ OWNER Title: ___________________________________________ Date: ___________________________________________ 01/24/2024 Date: ___________________________________________ 01/24/2024 8 FILED: KINGS COUNTY CLERK 07/02/2024 11:59 AM INDEX NO. 518042/2024 NYSCEF DOC. NO. 2 STANDARD MERCHANT CASH ADVANCE AGREEMENT RECEIVED NYSCEF: 07/02/2024 39. Counterclaim Waiver. In any litigation or arbitration commenced by FWF, each Merchant and each Guarantor will not be permitted to interpose any counterclaim. 40. Statutes of Limitations. Each Merchant and each Guarantor agree that any claim, whether sounding in contract, tort, law, equity, or otherwise, that is not asserted against FWF within one year after its accrual will be time barred. Notwithstanding any provision in this Agreement to the contrary, each Merchant and each Guarantor agree that any application made by any of them to stay an arbitration initiated against any of them by FWF will be time barred if made more than 20 days after receip