Preview
D: MONRO OUN RK AN INDEX NO. E2024010994
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/03/2024
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3928451
Book Page CIVIL
Return To: No. Pages: 18
STEVEN ZAKHARYAYEV
10 W37th Street, RM 602 Instrument: EXHIBIT(S)
New York, NY 10018
Control #: 202407031508
Index #: E2024010994,
Date: 07/03/2024
MCA SUMMER SCHOOL, LLC Time: 4:12:43 PM
YAAD MAN CARIBBEAN MARKET LTD. CO.
SMITH, ABBIGAIL BERNADETTE
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
MIA
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OF
NYSCEF RECEIVED NYSCEF: 07/03/2024
payCe J dca ei SECURED MERCHANT
re ee TYRIAN BULL AGREEMENT
Agreement dated 6/10/2024 between MCA SUMMER SCHOOL, LLC dba MCA SUMMER SCHOOL (“MCS”) and the
merchant listed below (“the Merchant”).
Merchant’s Legal Name: YAAD MAN CARIBBEAN MARKET LTD. CO. D/B/A: YAAD MAN CARIBBEAN MARKET LTD. CC
Physical Address: 1350 SOUTH ZACK HINTON PARKWAY STE C
Type of Entity (check one):
Cit MCDONOUGH State: GA Zip: 30252
Same as Physical Address
Ei Corporation DLimited Liability Company
1350 SOUTH ZACK HINTON PARKWAY STE C
B Limited Partnership [Limited Liability Parmership
Mailing Address:
City: MCDONOUGH State: GA Zip: D Sole Proprietor
30252
PURCHASE AND SALE OF FUTURE RECEIVABLES
Merchant hereby sell issigns and transfers to MCS (making MCS the absolute owner) in consideration of the “Purchase Price” specified above, the Purchased Percentage of all of Merchant's future
accounts, contract rights and other entitlements arising from or relating to the payment of monies from Merchant's customers’ and/or other third party payors (the “Receipts” defined as all payments
made by cash, check, electronic transfer or other form of monetary payment in the ordinary course of the Merchant's business), for the payments due 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 MCS.
Merchant is selling a portion of a future revenue stream to MCS at a discount, not borrowing money from MCS, therefore there is no interest rate or payment schedule and no time period during
which the Purchased Amount must be collected by MCS. The Remittance is a good faith estimate of (a) Purchased Percentage multiplied by (b) the daily average revenues of Seller during the
previous calendar month divided by (c) the number of business days in the calendar month, Merchant going bankrupt or going out of business, or experiencing a slowdown in business, or a delay in
collecting its receivables, in and of itself, does not constitute a breach of this Agreement. MCS is entering this Agreement knowing the risks that Merchant's business may slow down or fail, and MCS
assumes these risks based on Merchant's representations, warranties and covenants in this Agreement, which are designed to give MCS a reasonable and fair opportunity to receive the benefit of its
bargain. Merchantand Guarantor 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 1.4
MCS will debit the Remittance each business day from only one depositing bank account, which account must be acceptable to, and pre-approved by, MCS (the “Account”) into which Merchant
and Merchant's customers shall remit the Receipts from each Transaction, until such time as MCS receives payment in full of the Purchased Amount. Merchant hereby authorizes MCS to ACH
debit 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. MCS's payment of the Purchase
Price shall be deemed the acceptance and performance by MCS of this Agreement. Merchant understands that it is responsible for ensuring that the Agreed Remittance to be debited by MCS remains
in the Account and will be held responsible for any fees incurred by MCS resulting from a rejected ACH attempt or an Event of Default. MCS is not responsible for any werdrafts or rejected
transactions that may result from MCS's ACH debiting the Agreed Remittance under the terms of this Agreement. Notwithstanding anything to the contrary in this Agreement or any other
agreement between MCS and Merchant, upon the occurrence of an Event of Default under Section 3 of the MERCHANT AGREEMENT TERMS AND CONDITIONS the Purchased Percentage
shall equal 100%. A list of all fees applicable under this Agreement is contained in AppendixA.
Purchase Price: $ 1,500.00 Specified Percentage: 25.00 Receipts Purchased Amount: $ 2,848.50
THE MERCHANT AGREEMENT “TERMS AND CONDITIONS”, THE “SECURITY AGREEMENT AND GUARANTY” AND THE "ADMINISTRATIVE
FORM" HEREOF, ARE ALL HEREBY INCORPORATED IN AND MADE A PART OF THIS MERCHANT AGREEMENT.
MERCHANT #1 (Print Name)
First Name: ABBIGAIL BERNADETI Last Name: SMITH PPE SM
79CD257588884EB
Title: OWNER
MERCHANT #2 (Print Name)
First Name: Last Name:
Title:
G DocuSigned by:
Emp ABEIEAIL DERMIDETPE SMT
OWNER/GUARANTOR #1 (Print Name)
First Name: ABBIGAIL BERNADET] Last Name: SMITH TCZETS BEET
Title: OWNER
OWNER/GUARANTOR #2 (Print Name)
First Name: Last Name:
Title:
MCA SUMMER SCHOOL, LLC
By (Company Officer): Sales Associate Name (Signature):
ANY MISREPRESENTATION MADE BY MERCHANT OR OWNER IN CONNECTION WITH THIS AGREEMENT MAY CONSTITUTE A SEPARATE
CAUSE OF ACTION FOR FRAUD OR INTENTIONAL MISREPRESENTATION.
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NSABEFLADOCAGNBEMENT TERMS AND necessary in its sole and absolute discretion prior by MCRECEXVED! NeSCeanua Wye A220
CONDITIONS to or at any time after execution of this Agreement. being intended that Merchant not pay or contract to
A photocopy of this authorization will be deemed pay, and that MCS not receive or contract to
1 TERMS OF ENROLLMENT IN as acceptable as an authorization for release of receive, directly or indirectly in any manner
PROGRAM financial and credit information. MCs is authorized whatsoever, interest in excess of that which may
1.1 Merchant Deposit Agreement and to update such information and financial and credit be paid by Merchant under applicable law. As a
Processor. Merchant shall (A) execute an profiles from time to time as it deems appropriate. result thereof, Merchant knowingly and willingly
agreement acceptable to MCS with a Bank 16 Transactional History. Merchant authorizes waives the defense of Usury in any action or
acceptable to MCS to obtain electronic fund all of its banks, brokers and processor to provide proceeding.
transfer services for the Account, and (B) if Mcs with Merchant's banking, brokerage and/or 1.11 Power of Attorney. Merchant
applicable, execute an agreement acceptable to processing history to determine qualification or irrevocably appoints MCS as its agent and
MCS with acredit and debit card processor (the continuation in this program and for collections attorney-in-fact with full authority to take any
“Processor”) instructing the Processor to deposit purposes, Merchant shall provide MCS with copies action orexecute any instrument or document to
all Receipts into the Account. Merchant shall of any documents related to Merchant's card settle all obligations due to MCS from Processor,
provide and/or its authorized agent(s) with all processing activity or financial and banking affairs or in the case of a violation by Merchant of
of the information, authorizations and passwords within five days after a request from MCS. Section 1 or the occurrence of an Event of Default
necessary for verifying Merchant's receivables, 1.7 Indemnification. Merchant and Guarantor(s) under Section 3 hereof, including without
receipts, deposits and withdrawals into and from jointly and severally indemnify and hold harmless limitation (i) to obtain and adjust insurance; (ii)
the Account. Merchant hereby authorizes MCS Processor, its officers, directors and shareholders to collect monies due or to become due under or
and/or its agent(s) to withdraw from the Account against all losses, damages, claims, liabilities and in respect of any of the Collateral; (iii) to receive,
via ACH debit the amounts owed to MCS for expenses (including reasonable attorney's fees) endorse and collect any checks, notes, drafts,
thereceipts as specified herein and to pay such incurred by Processor resulting from (a) claims instruments, documents or chattel paper in
amounts to MCS. These authorizations apply asserted by MCS for monies owed to MCS from connection with clause (i) or clause (ii) above; (iv)
notonly to the approved Account but also to any Merchant and (b) actions taken by Processor in to sign Merchant's name on any invoice, bill of
subsequent or alternate account used by the reliance upon any fraudulent, misleading or lading, or assignment directing customers or
Merchant for these deposits, whether pre-approved deceptive information or instructions provided by account debtors to make payment directly to MCS;
by MCS or not. This additional authorization is MCS. and (v) to contact Merchant's banks and financial
nota waiver of MCS's entitlement to declare this 18 No Liability. In no event will MCS be liable institutions using Merchant and Guarantor(s)
Agreement breached by Merchant as a result of its for any claims asserted by Merchant or Guarantors personal information to verify the existence of an
usage of an account which MCS did not first pre- under any legal theory for lost profits, lost account and obtain account balances (vi) to file
approve in writing prior to Merchant's usage revenues, lost business opportunities, exemplary, any claims or take any action or institute any
thereof. The aforementioned authorizations shall punitive, special, incidental, indirect or proceeding which MCS may deem necessary for
be irrevocable without the written consent of MCS. consequential damages, each of which is waived by the collection of any of the unpaid Purchased
1.2 Term of Agreement. This Agreement shall both Merchant and Guarantor(s). In the event these Amount from the Collateral, or otherwise to
remain in full force and effect until the entire claims are nonetheless raised, Merchant and enforce its rights with respect to payment of the
Purchased Amount and any other amounts due are Guarantors will be jointly liable for all of MCS's Purchased Amount. In connection therewith, all
received by MCS as per the terms of this Agreement. attorney's fees and expenses resulting therefrom. costs, expenses and fees, including legal fees, shall
1.3 Future Purchase of Increments. Subject to 19 Reliance on Terms. Section 1.1, 1.6, 1.7, 1.8 be payable by and from Merchant and MCS is
the terms of this Agreement, MCS offers to purchase and 2.5 of this Agreement are agreed to for the authorized to use Merchant's funds to pay for
additional Receipts in the “Increments” stated on benefit of Merchant, MCs, Processor, and same; and (vii) MCS shall have the right, without
Page 1 of this Agreement, if any. MCS reserves the Merchant's bank and notwithstanding the fact that waiving any of its rights and remedies and without
right to delay or rescind the offer to purchase any Processor and the bank are not a party of this notice to Merchant or any Owner/Guarantor, to
Increment or any additional Receipts, in its sole Agreement, Processor and the bank may rely upon notify any credit card processor of the sale of
and absolute discretion. their terms and raise them as a defense in any future payment rights and re-direct the remittance
1.4 Adjustments to the Remittance. If an Event action. of daily settlements to an account of MCS's
of Default has not occurred, every two (2) calendar 10 Sale of Receipts. Merchant and MCS agree choosing in order to settle all obligations due to
weeks after the funding of the Purchase Price to that the Purchase Price under this Agreement is in MCS under this Agreement.
Merchant, Merchant may give notice to MCS to exchange for the Purchased Amount, and that such 1.12 Protections against Default. The following
request a decrease in the Remittance. The amount Purchase Price is not intended to be, nor shall Protections 1 through 8 may be invoked by
shall be decreased if the amount received by MCS it be construed as a loan from MCS to Merchant. MCS immediately and without notice to Merchant
was more than the Purchased Percentage of all Merchant agrees that the Purchase Price is in in the event: (a) Merchant takes any action to
revenue of Merchant since the date of this Revenue exchange for the Receipts pursuant to this discourage the use of electronic check processing
Purchase Agreement. The Remittance shall be Agreement, and that it equals the fair market value that are settled through Processor, or permits any
modified to more closely reflect the Merchant's of such Receipts. MCS has purchased and shall own event to occur that could have an adverse effect on
actual receipts by multiplying the Merchant's all the Receipts described in this Agreement up to the use, acceptance, or authorization of checks or
actual receipts by the Purchased Percentage the full Purchased Amount as the Receipts are other payments or deposits for the purchase of
divided by the number of business days in the created. Payments made to MCS in respect to the Merchant's services and products including but not
previous (2) calendar weeks. Seller shall provide full amount of the Receipts shall be conditioned limited to direct deposit of any checks into a bank
with viewing access to their bank account as well upon Merchant's sale of products and services, and account without scanning into the MCS electronic
as all information reasonably requested by the payment therefore by Merchant's customers. In check processor; (b) Merchant changes its
MCS to properly calculate the Merchant's no event shall the aggregate of all amounts or any arrangements with Processor or the Bank in any
Remittance. At the end of the two (2) calendar portion thereof be deemed as interest hereunder, way that is adverse or unacceptable to MCS; (c)
weeks the Merchant may request another and in the event it is found to be interest despite the Merchant changes the electronic check processor
adjustment pursuant to this paragraph or it is parties hereto specifically representing that it is through which the Receipts are settled from
agreed that the Merchant's Remittance shall return NOT interest, it shall be found that no sum charged Processor to another electronic check processor,
to the Remittance as agreed upon on Page 1 of this or collected hereunder shall exceed the highest rate
Agreement. permissible at law. In the event that a court
1.5 Financial Condition. Merchant and nonetheless determines that MCS has charged or
mp
Guarantor(s) (as hereinafter defined and limited) received interest hereunder in excess of the highest
authorize MCS and its agents to investigate their applicable rate, the rate in effect hereunder shall
financial responsibility and_ history, and will automatically be reduced to the maximum rate
provide to MCS any authorizations, bank or permitted by applicable law and MCS. shall INITIALS
financial statements, tax returns, etc., as MCS deems promptly refund to Merchant any interest received
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NYSBERILDONY, ew, toZoccur that could cause pe wu vy aun diy claim Tor damages against not for RECHAVEDIINYS DABchoBIDNEw T2024
diversion of any of Merchant's check or deposit MCS or any of its affiliates relating to any (i) 2.5 Electronic Check Processing Agreement,
transactions to another processor; (d) Merchant investigation undertaken by or on behalf of MCSas Merchant will not change its Processor, add
intentionally interrupts the operation of this permitted by this Agreement or (ii) disclosure of terminals, change its financial institution or bank
business transfers, moves, sells, disposes, or information as permitted by this Agreement. account(s) or take any other action that could
otherwise conveys its business and/or assets 1.14 Confidentiality. Merchant understands and have any adverse effect upon Merchant's
without (i) the express prior written consent of agrees that the terms and conditions of the products
obligations under this Agreement, without MCS's
MCS, and (ii) the written agreement of any MCS and services offered by MCS, including this prior written consent. Any such changes shall be a
or transferee to the assumption of all of Merchant's)Agreement and any other MCS documents material breach of this Agreement.
obligations under this Agreement pursuant to (collectively, “Confidential Information”) are 26 Change of Name or Location. Merchant
documentation satisfactory to MCS; (e) Merchant proprietary and confidential information of will not conduct Merchant's businesses under any
takes any action, fails to take any action, or offers MCS. Accordingly, unless disclosure is required name other than as disclosed to the Processor and
any incentive--economic or otherwise-- the result by law or court order, Merchant shall not disclose MCS, nor shall Merchant change any of its places
of which will be to induce any customer or Confidential Information of MCS to any person of business without prior written consent by MCS.
customers to pay for Merchant's services with any other than an attorney, accountant, financial 2.7 Daily Batch Out, Merchant will batch out
means other than payments, checks or deposits that advisor or employee of Merchant who needs to receipts with the Processor on a daily basis if
are settled through Processor; or (f) Merchant fails know such information for the purpose of advising applicable.
to provide MCS with copies of any documents Merchant (“Advisor”), provided such Advisor uses 2.8 Estoppel Certificate, Merchant will at every
related to Merchant's card processing activity of such information solely for the purpose of advising and all times, and from time to time, upon at least
financial and banking affairs within five days after Merchant and first agrees in writing to be bound by one (1) day's prior notice from MCS to
a request from MCS. These protections are in the terms of this section. A breach hereof entitles Merchant, execute, acknowledge and deliver to
addition to any other remedies available to MCS MCS. to not only damages and reasonable MCS and/or to any other person, firm or
atlaw, in equity or otherwise pursuant to this attorney's fees but also to both a Temporary corporation specified by MC: » a statement
Agreement. Restraining Order and a Preliminary Injunction certifying that this Agreement is unmodified and
Protes m_1. The full uncollected Purchased without Bond or Security. in full force and effect (or, if there have been
‘Amount plus all fees (including reasonable 1.15 Publicity. Merchant and each of Merchant's modifications, that the same is in full force and
attorney's fees) due under this Agreement and the Owners and all Guarantors hereto all hereby effect as modified and stating the modifications)
attached Security Agreement become due and authorizes MCS to use its, his or her name in and stating the dates which the Purchased Amount
payable in full immediately. listings of clients and in advertising and marketing or any portion thereof has been repaid.
Protection 2. MCS may enforce the provisions of materials. 2.9 No Bankruptcy. As of the date of this
the Limited Personal Guaranty of Performance 1.16 D/B/A's. Merchant hereby acknowledges Agreement, Merchant is not insolvent and does not
against the Guarantor(s). and agrees that MCS may be using joing contemplate filing for bankruptcy in the next six
Protection 3, Merchant hereby authorizes MCS to business as” r “d/b/a” names in connection with months and has not consulted with a bankruptcy
execute in the name of the Merchant a Confession various matters relating to the transaction between attorney or filed any petition for bankruptcy
of Judgment in favor of MCS in the amount of MCS and Merchant, including the filing of UCC-1 protection under Title 11 of the United States Code
Purchased Amount stated in the Agreement. Upon financing statements and other notices or filings. and there has been no involuntary petition brought
an Event of Default, MCs may enter that Confession 2 REPRESENTATIONS, WARRANTIES or pending against Merchant. Merchant further
of Judgment as a Judgment with the Clerk of any AND COVENANTS warrants that it does not anticipate filing any such
Court and execute thereon. Merchant represents warrants and covenants that, bankruptcy petition and it does not anticipate that
Protection 4. MCS may enforce its security interest as of this date and during the term of this an involuntary petition will be filed against it.
in the Collateral. Agreement: 2.10 Unencumbered_ Receipts. Merchant has
Protection 5. The entire Purchased Amount and all 2.1 Financial Condition and Financial good, complete, unencumbered and marketable
fee (including reasonable attorney's fees) shall Information. Merchant's and Guarantors’ bank and title to all Receipts, free and clear of any and all
become immediately payable to MCS from financial statements, copies of which have been liabilities, liens, claims, changes, restrictions,
Merchant. furnished to MCS, and future statements which conditions, options, rights, mortgages, security
Protection 6. MCS may proceed to protect and willbe furnished hereafter at the discretion of interests, equities, pledges and encumbrances of
enforce its right and remedies by lawsuit. In any MCS, fairly represent the financial condition of any kind or nature whatsoever or any other rights
such lawsuit, if MCS recovers a Judgment against Merchantat such dates, and since those dates there or interests that may be inconsistent with the
Merchant, Merchant shall be liable for all of MCS's has been no material adverse changes, financial or transactions contemplated with, or adverse to the
costs of the lawsuit, including but not limited to all otherwise, in such condition, operation or interests of MCS.
reasonable attorneys’ fees and court costs. ownership of Merchant. Merchant and Guarantors 2.11 Business Purpose. Merchant is a valid
Protection 7. This Agreement shall be deemed have a continuing, affirmative obligation to advise business in good standing under the laws of the
Merchant's Assignment of Merchant's Lease of MCS of any material adverse change in their jurisdictions in which it is organized and/or
Merchant's business premises to MCS. Upon breach financial condition, operation or ownership. operates, and Merchant is entering into this
of any provision in this Agreement, MCS may MCS may request statements at any time during Agreement for business purposes and not as a
exercise its rights under this Assignment of Lease the performance of this Agreement and the consumer for personal, family or household
without prior Notice to Merchant. Merchant and Guarantors shall provide them to purposes.
Protection 8. MCS may debit Merchant's MCS withinfive business days after request from 2.12 Defaults under Other Contracts.
depository accounts wherever situated by MCS. Merchant's or Guarantors' failure to do so is Merchant's execution of, and/or performance under
means of ACH debit or facsimile signature on a a material breach of this Agreement. this Agreement, will not cause or create an event of
computer-generated check drawn on Merchant's 2.2 Governmental Approvals. Merchant is in default by Merchant under any contract with
bank account or otherwise for all sums due to MCS. compliance and shall comply with all laws and has another person or entity.
1.13 Protection of Information. Merchant and valid permits, authorizations and licenses to own,
each person signing this Agreement on behalf of operate and lease its properties and to conduct the
Merchant and/or as Owner or Guarantor, in respect business in which it is presently engaged and/or
of himself or herself personally, authorizes MCS to will engage in hereafter.
Emp
disclose information concerning Merchant's and 2.3 Authorization, Merchant, and the person(s)
each Owner's and each Guarantor’s credit standing signing this Agreement on behalf of Merchant,
(including credit bureau reports that MCS obtains) have full power and authority to incur and perform INITIALS
and business conduct only to agents, affiliates, the obligations under this Agreement, all of which
subsidiaries, and credit reporting bureaus. have been duly authorized.
Merchant and each Owner and each Guarantor 2.4 Use of Funds. Merchant agrees that it shall
hereby and each waives to the maximum extent use the Purchase Price for business purposes and
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FEEED. MONRC Tati ‘Merchant is required to give
NY.SC EGooPOkaithNO Mefhant and Guarantors 410 JI
hereby affirm that Merchant is receiving
the
MCS written notice within 24 hours of any filing under HERETO WAIVE TRIAL BY JURY IN ANY COURT
Purchase Price and selling MCS the Purchased Title 11 of the United States Code. Merchant is IN ANY SUIT, ACTION OR PROCEEDING ON ANY
Amount in good faith and will use the Purchase Price required to give MCS seven days’ written notice priorto MATTER ARISING INCONNECTION WITH OR IN
funds to maintain and grow Merchant's business. the closing of any sale of all or substantially allof the ANY WAY RELATED TO THE TRANSACTIONS OR
Merchant's assets or stock. THEENFORCEMENT HEREOF. THE PARTIES
3 EVENTS OF DEFAULT AND REMEDIES 4 MISCELLANEOUS HERETO ACKNOWLEDGE THAT EACH MAKES
3.1 Events of Default. The occurrence of any of the 4.1 Modifications Agreements. No modification, THIS WAIVER KNOWINGLY, WILLINGLY AND
following events shall constitute an “Event of Default” amendment, waiver or consent of any provision of this VOLUNTARILY AND WITHOUT DURESS, AND
ONLY AFTER EXTENSIVE CONSIDERATION OF
hereunder: Agreement shall be effective unless the same shall be in
Merchant or Guarantor shall violate any term writing and signed by MCS. THE RAMIFICATIONS OF THIS WAIVER WITH
(a)
or covenant in this Agreement; 4.2 Assignment. MCS may assign, transfer or sell its THEIR ATTORNEYS.
(b) Any representation or warranty by Merchant in Tights to receive the Purchased Amount or delegate its 4.11 CLASS ACTION WAIVER, THE PARTIES
HERETO WAIVE ANY RIGHT TO ASSERT ANY
this Agreement shall prove to have been incorrect, false duties hereunder, either in whole or in part.
or misleading in any material respect when made; 4.3 Notices. All notices, requests, consents, CLAIMS AGAINST THE OTHER PARTY AS A
() the sending of notice of termination by demands and other communications hereunder shall REPRESENTATIVE OR MEMBER IN ANY CLASS
Merchant or verbally notifying MCS of its intent to be delivered by certified mail, return receipt requested, OR REPRESENTATIVE ACTION, EXCEPT WHERE
breach this Agreement; to the respective parties to this Agreement at SUCH WAIVER IS PROHIBITED BY LAW AS
the addresses set forth in this Agreement. Notices AGAINST PUBLIC POLICY. TO THE EXTENT
(d) the Merchant fails to give MCS 24 hours
advance notice that there will be insufficient funds in the
to MCS shall become effective only upon receipt by EITHER PARTY IS PERMITTED BY LAW OR
MCS. Notices to Merchant shall become effective three
account such that the ACH of the Remittance amount days after mailing. COURT OF LAW TO PROCEED WITH A CLASS OR
will not be honored by Merchant's bank, and the 4.4 Waiver Remedi No failure on the part of MCS REPRESENTATIVE ACTION AGAINST THE
Merchant fails to supply all requested documentation to exercise, and no delay in exercising any right under OTHER, THE PARTIES HEREBY AGREE THAT: (1)
and allow for daily and/or real time monitoring of its this Agreement shall operate as a waiver thereof, THE PREVAILING PARTY SHALL NOT BE
bank account; nor shall any single or partial exercise of any ENTITLED TO RECOVER ATTORNEYS’ FEES OR
(e) Merchant shall enter into any financing right under this Agreement preclude any other or COSTS ASSOCIATED WITH PURSUING THE
agreements with any other party including but not further exercise thereof or the exercise of any other right. CLASS OR REPRESENTATIVE ACTION (NOT
The remedies provided hereunder are cumulative and not WITHSTANDING ANY OTHER PROVISION IN
limited to: Loans, Merchant Cash Advances, Receivables exclusive of any remedies provided by law or equity.
financing, or any other agreement that will increase the 45 Binding Effect, Governing Law, Venue and THIS AGREEMENT); AND ( 2) THE PARTY WHO
total debt owed by seller to any other party. Jurisdiction. This Agreement shall be binding upon and INITIATES OR PARTICIPATES AS A MEMBER OF
(f) Merchant shall transfer or sell all or substantially inure to the benefit of Merchant, MCS and their respective THE CLASS WILL NOT SUBMIT A CLAIM OR
all of its assets; successors and assigns, except that Merchant shall not OTHERWISE PARTICIPATE IN ANY RECOVERY
(e) Merchant shall make or send notice of any have the right to assign its rights hereunder or any interest SECURED THROUGH THE CLASS OR
intended bulk sale or transfer by Merchant; herein without the prior written consent of MCS which REPRESENTATIVE ACTION.
(h) Merchant shall use multiple depository consent may be withheld in MCS's sole discretion. MCS 4.12 Facsimile & Digital Acceptance. Facsimile
accounts without the prior written consent of MCS reserves the rights to assign this Agreement with or signatures and digital signatures hereon shall be
ti) Merchant shall change its depositing account without prior written notice to Merchant. This Agreement deemed acceptable for all purposes.
without the prior written consent of MCS; or shall be governed by and construed in accordance with 4.13 Service of Process. In addition to the methods
i Merchant shall close its depositing account the laws of the state of New York, without regards to
used for ACH debits without the prior written any applicable principals of conflicts of law. Any suit, of service allowed by the New York State Civil
consent of MCS action or proceeding arising hereunder, or the Practice Law & Rules (“CPLR”), Merchant and all
interpretation, performance or breach hereof, shall, if Guarantors hereby expressly consent to service of
{k) Merchant's bank returns a code other than NSF MCS so elects, be instituted in any court sitting in Texas process upon it by registered or certified mail,
cutting MCS from its collections or New York, (the “Acceptable Forums”). Merchant
w Merchant shall default under agrees that the Acceptable Forums are convenient to
any of the terms, return receipt requested. Service hereunder shall be
covenants and conditions of any other agreement with it, and submits to the jurisdiction of the Acceptable complete upon Merchant (or, where applicable,
MCS. Forums and waives any and all objections to jurisdiction Guarantors’) actual receipt of process or upon
3.2 Limited Personal Guaranty. In the Event of a or venue. Should such proceeding be initiated in any Company’s receipt of the return thereof by the
Default, MCS will enforce its rights against the} other forum, Merchant waives any right to oppose any United States Postal Services as Refused or
Guarantors of this transaction. Said Guarantors will be motion or application made by MCS to transfer such Undeliverable. Merchant and Guarantors must
jointly and severally liable to MCS for all of MCS's proceeding to an Acceptable Forum. promptly notify Company, in writing, of each and
losses and damages, in additional to all costs and expenses 46 Survival of Representation, All representations, every change of address to which service of process
and legal fees associated with such enforcement.
3.3 Remedies. In case any Event of Default occurs| warranties execution
and covenants herein shall survive the
and delivery of this Agreement and shall
can be made. Service upon the last known address
and is not waived pursuant to Section 4.4. hereof, MCS| continue in full force until all obligations under this shall be sufficient. Merchant and Guarantors shall
may proceed to protect and enforce its rights or remedies| Agreement shall have been satisfied in full and this have thirty (30) calendar days after service
by suit in equity or by action at law, or both, whether for ‘Agreement shall have terminated. hereunder is complete in which to respond.
the specific performance of any covenant, agreement or Furthermore, Merchant and Guarantors expressly
other provision contained herein, or to enforce the| 47 Interpretation. All Parties hereto have consent that any and all notices, demands, requests
discharge of Merchant's obligations hereunder (including| reviewed this Agreement with attorney of their own or other communications under and pursuant to this
the Guaranty) or any other legal or equitable right or choosing and have relied only on their own attorneys’
remedy. All rights, powers and remedies of MCS. in| guidance and advice. No construction determinations Agreement for the Purchase and Sale of Future
connection with this Agreement may be exercised at any| shall be made against either Party hereto as drafter. Receivables shall be delivered in accordance with
time by MCS after the occurrence of an Event of Default, 48 Severability. In case any of the provisions in this the provisions of this Agreement for the Purchase
are cumulative and not exclusive, and shall be in addition] ‘Agreement is found to be invalid, illegal or and Sale of Future Receivables.
to any other rights, powers or remedies provided by law or unenforceable in any respect, the validity, legality and
equity. These remedies may include garnishment or| enforceability of any other provision contained herein
prejudgment garnishment of a bank account. shall not in any way be affected or impaired.
34 Costs. Merchant shall pay to MCS all 49 Entire Agreement. Any provision hereof
reasonable costs associated with (a) an Event or Default, prohibited by law shall
Preview
D: MONRO OUN RK AN INDEX NO. E2024010994 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/03/2024 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3928451 Book Page CIVIL Return To: No. Pages: 18 STEVEN ZAKHARYAYEV 10 W37th Street, RM 602 Instrument: EXHIBIT(S) New York, NY 10018 Control #: 202407031508 Index #: E2024010994, Date: 07/03/2024 MCA SUMMER SCHOOL, LLC Time: 4:12:43 PM YAAD MAN CARIBBEAN MARKET LTD. CO. SMITH, ABBIGAIL BERNADETTE 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 MIA iB INDEex 8OE282492099)994 YY IT. Ko) . A OF NYSCEF RECEIVED NYSCEF: 07/03/2024 payCe J dca ei SECURED MERCHANT re ee TYRIAN BULL AGREEMENT Agreement dated 6/10/2024 between MCA SUMMER SCHOOL, LLC dba MCA SUMMER SCHOOL (“MCS”) and the merchant listed below (“the Merchant”). Merchant’s Legal Name: YAAD MAN CARIBBEAN MARKET LTD. CO. D/B/A: YAAD MAN CARIBBEAN MARKET LTD. CC Physical Address: 1350 SOUTH ZACK HINTON PARKWAY STE C Type of Entity (check one): Cit MCDONOUGH State: GA Zip: 30252 Same as Physical Address Ei Corporation DLimited Liability Company 1350 SOUTH ZACK HINTON PARKWAY STE C B Limited Partnership [Limited Liability Parmership Mailing Address: City: MCDONOUGH State: GA Zip: D Sole Proprietor 30252 PURCHASE AND SALE OF FUTURE RECEIVABLES Merchant hereby sell issigns and transfers to MCS (making MCS the absolute owner) in consideration of the “Purchase Price” specified above, the Purchased Percentage of all of Merchant's future accounts, contract rights and other entitlements arising from or relating to the payment of monies from Merchant's customers’ and/or other third party payors (the “Receipts” defined as all payments made by cash, check, electronic transfer or other form of monetary payment in the ordinary course of the Merchant's business), for the payments due 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 MCS. Merchant is selling a portion of a future revenue stream to MCS at a discount, not borrowing money from MCS, therefore there is no interest rate or payment schedule and no time period during which the Purchased Amount must be collected by MCS. The Remittance is a good faith estimate of (a) Purchased Percentage multiplied by (b) the daily average revenues of Seller during the previous calendar month divided by (c) the number of business days in the calendar month, Merchant going bankrupt or going out of business, or experiencing a slowdown in business, or a delay in collecting its receivables, in and of itself, does not constitute a breach of this Agreement. MCS is entering this Agreement knowing the risks that Merchant's business may slow down or fail, and MCS assumes these risks based on Merchant's representations, warranties and covenants in this Agreement, which are designed to give MCS a reasonable and fair opportunity to receive the benefit of its bargain. Merchantand Guarantor 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 1.4 MCS will debit the Remittance each business day from only one depositing bank account, which account must be acceptable to, and pre-approved by, MCS (the “Account”) into which Merchant and Merchant's customers shall remit the Receipts from each Transaction, until such time as MCS receives payment in full of the Purchased Amount. Merchant hereby authorizes MCS to ACH debit 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. MCS's payment of the Purchase Price shall be deemed the acceptance and performance by MCS of this Agreement. Merchant understands that it is responsible for ensuring that the Agreed Remittance to be debited by MCS remains in the Account and will be held responsible for any fees incurred by MCS resulting from a rejected ACH attempt or an Event of Default. MCS is not responsible for any werdrafts or rejected transactions that may result from MCS's ACH debiting the Agreed Remittance under the terms of this Agreement. Notwithstanding anything to the contrary in this Agreement or any other agreement between MCS and Merchant, upon the occurrence of an Event of Default under Section 3 of the MERCHANT AGREEMENT TERMS AND CONDITIONS the Purchased Percentage shall equal 100%. A list of all fees applicable under this Agreement is contained in AppendixA. Purchase Price: $ 1,500.00 Specified Percentage: 25.00 Receipts Purchased Amount: $ 2,848.50 THE MERCHANT AGREEMENT “TERMS AND CONDITIONS”, THE “SECURITY AGREEMENT AND GUARANTY” AND THE "ADMINISTRATIVE FORM" HEREOF, ARE ALL HEREBY INCORPORATED IN AND MADE A PART OF THIS MERCHANT AGREEMENT. MERCHANT #1 (Print Name) First Name: ABBIGAIL BERNADETI Last Name: SMITH PPE SM 79CD257588884EB Title: OWNER MERCHANT #2 (Print Name) First Name: Last Name: Title: G DocuSigned by: Emp ABEIEAIL DERMIDETPE SMT OWNER/GUARANTOR #1 (Print Name) First Name: ABBIGAIL BERNADET] Last Name: SMITH TCZETS BEET Title: OWNER OWNER/GUARANTOR #2 (Print Name) First Name: Last Name: Title: MCA SUMMER SCHOOL, LLC By (Company Officer): Sales Associate Name (Signature): ANY MISREPRESENTATION MADE BY MERCHANT OR OWNER IN CONNECTION WITH THIS AGREEMENT MAY CONSTITUTE A SEPARATE CAUSE OF ACTION FOR FRAUD OR INTENTIONAL MISREPRESENTATION. Pg.1 iB INDW@exN0 E262020894994 YY oh NSABEFLADOCAGNBEMENT TERMS AND necessary in its sole and absolute discretion prior by MCRECEXVED! NeSCeanua Wye A220 CONDITIONS to or at any time after execution of this Agreement. being intended that Merchant not pay or contract to A photocopy of this authorization will be deemed pay, and that MCS not receive or contract to 1 TERMS OF ENROLLMENT IN as acceptable as an authorization for release of receive, directly or indirectly in any manner PROGRAM financial and credit information. MCs is authorized whatsoever, interest in excess of that which may 1.1 Merchant Deposit Agreement and to update such information and financial and credit be paid by Merchant under applicable law. As a Processor. Merchant shall (A) execute an profiles from time to time as it deems appropriate. result thereof, Merchant knowingly and willingly agreement acceptable to MCS with a Bank 16 Transactional History. Merchant authorizes waives the defense of Usury in any action or acceptable to MCS to obtain electronic fund all of its banks, brokers and processor to provide proceeding. transfer services for the Account, and (B) if Mcs with Merchant's banking, brokerage and/or 1.11 Power of Attorney. Merchant applicable, execute an agreement acceptable to processing history to determine qualification or irrevocably appoints MCS as its agent and MCS with acredit and debit card processor (the continuation in this program and for collections attorney-in-fact with full authority to take any “Processor”) instructing the Processor to deposit purposes, Merchant shall provide MCS with copies action orexecute any instrument or document to all Receipts into the Account. Merchant shall of any documents related to Merchant's card settle all obligations due to MCS from Processor, provide and/or its authorized agent(s) with all processing activity or financial and banking affairs or in the case of a violation by Merchant of of the information, authorizations and passwords within five days after a request from MCS. Section 1 or the occurrence of an Event of Default necessary for verifying Merchant's receivables, 1.7 Indemnification. Merchant and Guarantor(s) under Section 3 hereof, including without receipts, deposits and withdrawals into and from jointly and severally indemnify and hold harmless limitation (i) to obtain and adjust insurance; (ii) the Account. Merchant hereby authorizes MCS Processor, its officers, directors and shareholders to collect monies due or to become due under or and/or its agent(s) to withdraw from the Account against all losses, damages, claims, liabilities and in respect of any of the Collateral; (iii) to receive, via ACH debit the amounts owed to MCS for expenses (including reasonable attorney's fees) endorse and collect any checks, notes, drafts, thereceipts as specified herein and to pay such incurred by Processor resulting from (a) claims instruments, documents or chattel paper in amounts to MCS. These authorizations apply asserted by MCS for monies owed to MCS from connection with clause (i) or clause (ii) above; (iv) notonly to the approved Account but also to any Merchant and (b) actions taken by Processor in to sign Merchant's name on any invoice, bill of subsequent or alternate account used by the reliance upon any fraudulent, misleading or lading, or assignment directing customers or Merchant for these deposits, whether pre-approved deceptive information or instructions provided by account debtors to make payment directly to MCS; by MCS or not. This additional authorization is MCS. and (v) to contact Merchant's banks and financial nota waiver of MCS's entitlement to declare this 18 No Liability. In no event will MCS be liable institutions using Merchant and Guarantor(s) Agreement breached by Merchant as a result of its for any claims asserted by Merchant or Guarantors personal information to verify the existence of an usage of an account which MCS did not first pre- under any legal theory for lost profits, lost account and obtain account balances (vi) to file approve in writing prior to Merchant's usage revenues, lost business opportunities, exemplary, any claims or take any action or institute any thereof. The aforementioned authorizations shall punitive, special, incidental, indirect or proceeding which MCS may deem necessary for be irrevocable without the written consent of MCS. consequential damages, each of which is waived by the collection of any of the unpaid Purchased 1.2 Term of Agreement. This Agreement shall both Merchant and Guarantor(s). In the event these Amount from the Collateral, or otherwise to remain in full force and effect until the entire claims are nonetheless raised, Merchant and enforce its rights with respect to payment of the Purchased Amount and any other amounts due are Guarantors will be jointly liable for all of MCS's Purchased Amount. In connection therewith, all received by MCS as per the terms of this Agreement. attorney's fees and expenses resulting therefrom. costs, expenses and fees, including legal fees, shall 1.3 Future Purchase of Increments. Subject to 19 Reliance on Terms. Section 1.1, 1.6, 1.7, 1.8 be payable by and from Merchant and MCS is the terms of this Agreement, MCS offers to purchase and 2.5 of this Agreement are agreed to for the authorized to use Merchant's funds to pay for additional Receipts in the “Increments” stated on benefit of Merchant, MCs, Processor, and same; and (vii) MCS shall have the right, without Page 1 of this Agreement, if any. MCS reserves the Merchant's bank and notwithstanding the fact that waiving any of its rights and remedies and without right to delay or rescind the offer to purchase any Processor and the bank are not a party of this notice to Merchant or any Owner/Guarantor, to Increment or any additional Receipts, in its sole Agreement, Processor and the bank may rely upon notify any credit card processor of the sale of and absolute discretion. their terms and raise them as a defense in any future payment rights and re-direct the remittance 1.4 Adjustments to the Remittance. If an Event action. of daily settlements to an account of MCS's of Default has not occurred, every two (2) calendar 10 Sale of Receipts. Merchant and MCS agree choosing in order to settle all obligations due to weeks after the funding of the Purchase Price to that the Purchase Price under this Agreement is in MCS under this Agreement. Merchant, Merchant may give notice to MCS to exchange for the Purchased Amount, and that such 1.12 Protections against Default. The following request a decrease in the Remittance. The amount Purchase Price is not intended to be, nor shall Protections 1 through 8 may be invoked by shall be decreased if the amount received by MCS it be construed as a loan from MCS to Merchant. MCS immediately and without notice to Merchant was more than the Purchased Percentage of all Merchant agrees that the Purchase Price is in in the event: (a) Merchant takes any action to revenue of Merchant since the date of this Revenue exchange for the Receipts pursuant to this discourage the use of electronic check processing Purchase Agreement. The Remittance shall be Agreement, and that it equals the fair market value that are settled through Processor, or permits any modified to more closely reflect the Merchant's of such Receipts. MCS has purchased and shall own event to occur that could have an adverse effect on actual receipts by multiplying the Merchant's all the Receipts described in this Agreement up to the use, acceptance, or authorization of checks or actual receipts by the Purchased Percentage the full Purchased Amount as the Receipts are other payments or deposits for the purchase of divided by the number of business days in the created. Payments made to MCS in respect to the Merchant's services and products including but not previous (2) calendar weeks. Seller shall provide full amount of the Receipts shall be conditioned limited to direct deposit of any checks into a bank with viewing access to their bank account as well upon Merchant's sale of products and services, and account without scanning into the MCS electronic as all information reasonably requested by the payment therefore by Merchant's customers. In check processor; (b) Merchant changes its MCS to properly calculate the Merchant's no event shall the aggregate of all amounts or any arrangements with Processor or the Bank in any Remittance. At the end of the two (2) calendar portion thereof be deemed as interest hereunder, way that is adverse or unacceptable to MCS; (c) weeks the Merchant may request another and in the event it is found to be interest despite the Merchant changes the electronic check processor adjustment pursuant to this paragraph or it is parties hereto specifically representing that it is through which the Receipts are settled from agreed that the Merchant's Remittance shall return NOT interest, it shall be found that no sum charged Processor to another electronic check processor, to the Remittance as agreed upon on Page 1 of this or collected hereunder shall exceed the highest rate Agreement. permissible at law. In the event that a court 1.5 Financial Condition. Merchant and nonetheless determines that MCS has charged or mp Guarantor(s) (as hereinafter defined and limited) received interest hereunder in excess of the highest authorize MCS and its agents to investigate their applicable rate, the rate in effect hereunder shall financial responsibility and_ history, and will automatically be reduced to the maximum rate provide to MCS any authorizations, bank or permitted by applicable law and MCS. shall INITIALS financial statements, tax returns, etc., as MCS deems promptly refund to Merchant any interest received Pg.2 iB YY nNohkof INDW@exN0 E262020894994 NYSBERILDONY, ew, toZoccur that could cause pe wu vy aun diy claim Tor damages against not for RECHAVEDIINYS DABchoBIDNEw T2024 diversion of any of Merchant's check or deposit MCS or any of its affiliates relating to any (i) 2.5 Electronic Check Processing Agreement, transactions to another processor; (d) Merchant investigation undertaken by or on behalf of MCSas Merchant will not change its Processor, add intentionally interrupts the operation of this permitted by this Agreement or (ii) disclosure of terminals, change its financial institution or bank business transfers, moves, sells, disposes, or information as permitted by this Agreement. account(s) or take any other action that could otherwise conveys its business and/or assets 1.14 Confidentiality. Merchant understands and have any adverse effect upon Merchant's without (i) the express prior written consent of agrees that the terms and conditions of the products obligations under this Agreement, without MCS's MCS, and (ii) the written agreement of any MCS and services offered by MCS, including this prior written consent. Any such changes shall be a or transferee to the assumption of all of Merchant's)Agreement and any other MCS documents material breach of this Agreement. obligations under this Agreement pursuant to (collectively, “Confidential Information”) are 26 Change of Name or Location. Merchant documentation satisfactory to MCS; (e) Merchant proprietary and confidential information of will not conduct Merchant's businesses under any takes any action, fails to take any action, or offers MCS. Accordingly, unless disclosure is required name other than as disclosed to the Processor and any incentive--economic or otherwise-- the result by law or court order, Merchant shall not disclose MCS, nor shall Merchant change any of its places of which will be to induce any customer or Confidential Information of MCS to any person of business without prior written consent by MCS. customers to pay for Merchant's services with any other than an attorney, accountant, financial 2.7 Daily Batch Out, Merchant will batch out means other than payments, checks or deposits that advisor or employee of Merchant who needs to receipts with the Processor on a daily basis if are settled through Processor; or (f) Merchant fails know such information for the purpose of advising applicable. to provide MCS with copies of any documents Merchant (“Advisor”), provided such Advisor uses 2.8 Estoppel Certificate, Merchant will at every related to Merchant's card processing activity of such information solely for the purpose of advising and all times, and from time to time, upon at least financial and banking affairs within five days after Merchant and first agrees in writing to be bound by one (1) day's prior notice from MCS to a request from MCS. These protections are in the terms of this section. A breach hereof entitles Merchant, execute, acknowledge and deliver to addition to any other remedies available to MCS MCS. to not only damages and reasonable MCS and/or to any other person, firm or atlaw, in equity or otherwise pursuant to this attorney's fees but also to both a Temporary corporation specified by MC: » a statement Agreement. Restraining Order and a Preliminary Injunction certifying that this Agreement is unmodified and Protes m_1. The full uncollected Purchased without Bond or Security. in full force and effect (or, if there have been ‘Amount plus all fees (including reasonable 1.15 Publicity. Merchant and each of Merchant's modifications, that the same is in full force and attorney's fees) due under this Agreement and the Owners and all Guarantors hereto all hereby effect as modified and stating the modifications) attached Security Agreement become due and authorizes MCS to use its, his or her name in and stating the dates which the Purchased Amount payable in full immediately. listings of clients and in advertising and marketing or any portion thereof has been repaid. Protection 2. MCS may enforce the provisions of materials. 2.9 No Bankruptcy. As of the date of this the Limited Personal Guaranty of Performance 1.16 D/B/A's. Merchant hereby acknowledges Agreement, Merchant is not insolvent and does not against the Guarantor(s). and agrees that MCS may be using joing contemplate filing for bankruptcy in the next six Protection 3, Merchant hereby authorizes MCS to business as” r “d/b/a” names in connection with months and has not consulted with a bankruptcy execute in the name of the Merchant a Confession various matters relating to the transaction between attorney or filed any petition for bankruptcy of Judgment in favor of MCS in the amount of MCS and Merchant, including the filing of UCC-1 protection under Title 11 of the United States Code Purchased Amount stated in the Agreement. Upon financing statements and other notices or filings. and there has been no involuntary petition brought an Event of Default, MCs may enter that Confession 2 REPRESENTATIONS, WARRANTIES or pending against Merchant. Merchant further of Judgment as a Judgment with the Clerk of any AND COVENANTS warrants that it does not anticipate filing any such Court and execute thereon. Merchant represents warrants and covenants that, bankruptcy petition and it does not anticipate that Protection 4. MCS may enforce its security interest as of this date and during the term of this an involuntary petition will be filed against it. in the Collateral. Agreement: 2.10 Unencumbered_ Receipts. Merchant has Protection 5. The entire Purchased Amount and all 2.1 Financial Condition and Financial good, complete, unencumbered and marketable fee (including reasonable attorney's fees) shall Information. Merchant's and Guarantors’ bank and title to all Receipts, free and clear of any and all become immediately payable to MCS from financial statements, copies of which have been liabilities, liens, claims, changes, restrictions, Merchant. furnished to MCS, and future statements which conditions, options, rights, mortgages, security Protection 6. MCS may proceed to protect and willbe furnished hereafter at the discretion of interests, equities, pledges and encumbrances of enforce its right and remedies by lawsuit. In any MCS, fairly represent the financial condition of any kind or nature whatsoever or any other rights such lawsuit, if MCS recovers a Judgment against Merchantat such dates, and since those dates there or interests that may be inconsistent with the Merchant, Merchant shall be liable for all of MCS's has been no material adverse changes, financial or transactions contemplated with, or adverse to the costs of the lawsuit, including but not limited to all otherwise, in such condition, operation or interests of MCS. reasonable attorneys’ fees and court costs. ownership of Merchant. Merchant and Guarantors 2.11 Business Purpose. Merchant is a valid Protection 7. This Agreement shall be deemed have a continuing, affirmative obligation to advise business in good standing under the laws of the Merchant's Assignment of Merchant's Lease of MCS of any material adverse change in their jurisdictions in which it is organized and/or Merchant's business premises to MCS. Upon breach financial condition, operation or ownership. operates, and Merchant is entering into this of any provision in this Agreement, MCS may MCS may request statements at any time during Agreement for business purposes and not as a exercise its rights under this Assignment of Lease the performance of this Agreement and the consumer for personal, family or household without prior Notice to Merchant. Merchant and Guarantors shall provide them to purposes. Protection 8. MCS may debit Merchant's MCS withinfive business days after request from 2.12 Defaults under Other Contracts. depository accounts wherever situated by MCS. Merchant's or Guarantors' failure to do so is Merchant's execution of, and/or performance under means of ACH debit or facsimile signature on a a material breach of this Agreement. this Agreement, will not cause or create an event of computer-generated check drawn on Merchant's 2.2 Governmental Approvals. Merchant is in default by Merchant under any contract with bank account or otherwise for all sums due to MCS. compliance and shall comply with all laws and has another person or entity. 1.13 Protection of Information. Merchant and valid permits, authorizations and licenses to own, each person signing this Agreement on behalf of operate and lease its properties and to conduct the Merchant and/or as Owner or Guarantor, in respect business in which it is presently engaged and/or of himself or herself personally, authorizes MCS to will engage in hereafter. Emp disclose information concerning Merchant's and 2.3 Authorization, Merchant, and the person(s) each Owner's and each Guarantor’s credit standing signing this Agreement on behalf of Merchant, (including credit bureau reports that MCS obtains) have full power and authority to incur and perform INITIALS and business conduct only to agents, affiliates, the obligations under this Agreement, all of which subsidiaries, and credit reporting bureaus. have been duly authorized. Merchant and each Owner and each Guarantor 2.4 Use of Funds. Merchant agrees that it shall hereby and each waives to the maximum extent use the Purchase Price for business purposes and Pg.3 INDW@exN0 E262020894994 FEEED. MONRC Tati ‘Merchant is required to give NY.SC EGooPOkaithNO Mefhant and Guarantors 410 JI hereby affirm that Merchant is receiving the MCS written notice within 24 hours of any filing under HERETO WAIVE TRIAL BY JURY IN ANY COURT Purchase Price and selling MCS the Purchased Title 11 of the United States Code. Merchant is IN ANY SUIT, ACTION OR PROCEEDING ON ANY Amount in good faith and will use the Purchase Price required to give MCS seven days’ written notice priorto MATTER ARISING INCONNECTION WITH OR IN funds to maintain and grow Merchant's business. the closing of any sale of all or substantially allof the ANY WAY RELATED TO THE TRANSACTIONS OR Merchant's assets or stock. THEENFORCEMENT HEREOF. THE PARTIES 3 EVENTS OF DEFAULT AND REMEDIES 4 MISCELLANEOUS HERETO ACKNOWLEDGE THAT EACH MAKES 3.1 Events of Default. The occurrence of any of the 4.1 Modifications Agreements. No modification, THIS WAIVER KNOWINGLY, WILLINGLY AND following events shall constitute an “Event of Default” amendment, waiver or consent of any provision of this VOLUNTARILY AND WITHOUT DURESS, AND ONLY AFTER EXTENSIVE CONSIDERATION OF hereunder: Agreement shall be effective unless the same shall be in Merchant or Guarantor shall violate any term writing and signed by MCS. THE RAMIFICATIONS OF THIS WAIVER WITH (a) or covenant in this Agreement; 4.2 Assignment. MCS may assign, transfer or sell its THEIR ATTORNEYS. (b) Any representation or warranty by Merchant in Tights to receive the Purchased Amount or delegate its 4.11 CLASS ACTION WAIVER, THE PARTIES HERETO WAIVE ANY RIGHT TO ASSERT ANY this Agreement shall prove to have been incorrect, false duties hereunder, either in whole or in part. or misleading in any material respect when made; 4.3 Notices. All notices, requests, consents, CLAIMS AGAINST THE OTHER PARTY AS A () the sending of notice of termination by demands and other communications hereunder shall REPRESENTATIVE OR MEMBER IN ANY CLASS Merchant or verbally notifying MCS of its intent to be delivered by certified mail, return receipt requested, OR REPRESENTATIVE ACTION, EXCEPT WHERE breach this Agreement; to the respective parties to this Agreement at SUCH WAIVER IS PROHIBITED BY LAW AS the addresses set forth in this Agreement. Notices AGAINST PUBLIC POLICY. TO THE EXTENT (d) the Merchant fails to give MCS 24 hours advance notice that there will be insufficient funds in the to MCS shall become effective only upon receipt by EITHER PARTY IS PERMITTED BY LAW OR MCS. Notices to Merchant shall become effective three account such that the ACH of the Remittance amount days after mailing. COURT OF LAW TO PROCEED WITH A CLASS OR will not be honored by Merchant's bank, and the 4.4 Waiver Remedi No failure on the part of MCS REPRESENTATIVE ACTION AGAINST THE Merchant fails to supply all requested documentation to exercise, and no delay in exercising any right under OTHER, THE PARTIES HEREBY AGREE THAT: (1) and allow for daily and/or real time monitoring of its this Agreement shall operate as a waiver thereof, THE PREVAILING PARTY SHALL NOT BE bank account; nor shall any single or partial exercise of any ENTITLED TO RECOVER ATTORNEYS’ FEES OR (e) Merchant shall enter into any financing right under this Agreement preclude any other or COSTS ASSOCIATED WITH PURSUING THE agreements with any other party including but not further exercise thereof or the exercise of any other right. CLASS OR REPRESENTATIVE ACTION (NOT The remedies provided hereunder are cumulative and not WITHSTANDING ANY OTHER PROVISION IN limited to: Loans, Merchant Cash Advances, Receivables exclusive of any remedies provided by law or equity. financing, or any other agreement that will increase the 45 Binding Effect, Governing Law, Venue and THIS AGREEMENT); AND ( 2) THE PARTY WHO total debt owed by seller to any other party. Jurisdiction. This Agreement shall be binding upon and INITIATES OR PARTICIPATES AS A MEMBER OF (f) Merchant shall transfer or sell all or substantially inure to the benefit of Merchant, MCS and their respective THE CLASS WILL NOT SUBMIT A CLAIM OR all of its assets; successors and assigns, except that Merchant shall not OTHERWISE PARTICIPATE IN ANY RECOVERY (e) Merchant shall make or send notice of any have the right to assign its rights hereunder or any interest SECURED THROUGH THE CLASS OR intended bulk sale or transfer by Merchant; herein without the prior written consent of MCS which REPRESENTATIVE ACTION. (h) Merchant shall use multiple depository consent may be withheld in MCS's sole discretion. MCS 4.12 Facsimile & Digital Acceptance. Facsimile accounts without the prior written consent of MCS reserves the rights to assign this Agreement with or signatures and digital signatures hereon shall be ti) Merchant shall change its depositing account without prior written notice to Merchant. This Agreement deemed acceptable for all purposes. without the prior written consent of MCS; or shall be governed by and construed in accordance with 4.13 Service of Process. In addition to the methods i Merchant shall close its depositing account the laws of the state of New York, without regards to used for ACH debits without the prior written any applicable principals of conflicts of law. Any suit, of service allowed by the New York State Civil consent of MCS action or proceeding arising hereunder, or the Practice Law & Rules (“CPLR”), Merchant and all interpretation, performance or breach hereof, shall, if Guarantors hereby expressly consent to service of {k) Merchant's bank returns a code other than NSF MCS so elects, be instituted in any court sitting in Texas process upon it by registered or certified mail, cutting MCS from its collections or New York, (the “Acceptable Forums”). Merchant w Merchant shall default under agrees that the Acceptable Forums are convenient to any of the terms, return receipt requested. Service hereunder shall be covenants and conditions of any other agreement with it, and submits to the jurisdiction of the Acceptable complete upon Merchant (or, where applicable, MCS. Forums and waives any and all objections to jurisdiction Guarantors’) actual receipt of process or upon 3.2 Limited Personal Guaranty. In the Event of a or venue. Should such proceeding be initiated in any Company’s receipt of the return thereof by the Default, MCS will enforce its rights against the} other forum, Merchant waives any right to oppose any United States Postal Services as Refused or Guarantors of this transaction. Said Guarantors will be motion or application made by MCS to transfer such Undeliverable. Merchant and Guarantors must jointly and severally liable to MCS for all of MCS's proceeding to an Acceptable Forum. promptly notify Company, in writing, of each and losses and damages, in additional to all costs and expenses 46 Survival of Representation, All representations, every change of address to which service of process and legal fees associated with such enforcement. 3.3 Remedies. In case any Event of Default occurs| warranties execution and covenants herein shall survive the and delivery of this Agreement and shall can be made. Service upon the last known address and is not waived pursuant to Section 4.4. hereof, MCS| continue in full force until all obligations under this shall be sufficient. Merchant and Guarantors shall may proceed to protect and enforce its rights or remedies| Agreement shall have been satisfied in full and this have thirty (30) calendar days after service by suit in equity or by action at law, or both, whether for ‘Agreement shall have terminated. hereunder is complete in which to respond. the specific performance of any covenant, agreement or Furthermore, Merchant and Guarantors expressly other provision contained herein, or to enforce the| 47 Interpretation. All Parties hereto have consent that any and all notices, demands, requests discharge of Merchant's obligations hereunder (including| reviewed this Agreement with attorney of their own or other communications under and pursuant to this the Guaranty) or any other legal or equitable right or choosing and have relied only on their own attorneys’ remedy. All rights, powers and remedies of MCS. in| guidance and advice. No construction determinations Agreement for the Purchase and Sale of Future connection with this Agreement may be exercised at any| shall be made against either Party hereto as drafter. Receivables shall be delivered in accordance with time by MCS after the occurrence of an Event of Default, 48 Severability. In case any of the provisions in this the provisions of this Agreement for the Purchase are cumulative and not exclusive, and shall be in addition] ‘Agreement is found to be invalid, illegal or and Sale of Future Receivables. to any other rights, powers or remedies provided by law or unenforceable in any respect, the validity, legality and equity. These remedies may include garnishment or| enforceability of any other provision contained herein prejudgment garnishment of a bank account. shall not in any way be affected or impaired. 34 Costs. Merchant shall pay to MCS all 49 Entire Agreement. Any provision hereof reasonable costs associated with (a) an Event or Default, prohibited by law shall