Preview
FILED: MONROE COUNTY CLERK 07/03/2024 04:49 PM INDEX NO. E2024011037
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/03/2024
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3928682
Book Page CIVIL
Return To: No. Pages: 10
ARIEL BOUSKILA
1545 US 202 Instrument: EXHIBIT(S)
Suite 101
Pomona, NY 10970 Control #: 202407031762
Index #: E2024011037
Date: 07/03/2024
BIRCHWOOD FUNDING Time: 5:17:27 PM
KH CONSTRUCTION MANAGEMENT CORPORATION
KH CONSTRUCTION MGMT CORP
KH CONSTRUCTION MANAGEMENT CORPORAT
GJW BUILDER, INC.
KH CONSTRUCTION MANAGEMENT CORP.
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
202407031762 l- Index #
INDEX : E2024011037
NO. E2024011037
FILED: MONROE
uuuuomu¤wavpe COUNTY CLERK 07/03/2024
ID: 313F5C2C-24EC-4090-9F05-F160A39289E6
04:49 PM
NYSCEF DOC. NO. 2 LJ RECEIVED NYSCEF: 07/03/2024
Bimhwood Funding
REVENUE AGREEMENT
PURCHASE
This RevenuePurchase Agreement and Security Agreement and Guaranty of Performance ("Agreement") dated December27, 2023 between Birchwood Funding ("BWF")
the Merchant(s) listed below ("Merchant") and the Individual(s) listed below ("Guarantor")
MERCHANTINFORMATIO-N
Merchant's LegalName: KHCONSTRUCTION
MANAGEMENT
CORPORATION
KHCONSTRUCTION
MANAGEMENT
CORP
/ KHCONSTRUCTION
MANAGEMENT
CORPORAT
/ KHCONSTRUCTION
MGMTCORP/ KHCONSTRUCT[ON
MANAGEMENT
CORP
KHCONSTRUCTION
/ KHCONSTRUCTION
MANAGEMENT
COR/ KRISTEN MANAGEMENT
CORP/ GJWBUltDER, INC.
D/B/A: KHCONSTRUCTION
MANAGEMENT State of Incorporation / Organization: PA Type of Entity: Corp. LLC Q
Physical Address: 228 DAVISVILLE RD Other: O sole ProPO
City: WILLOW
GROVE State: PA Zip: 19090 Business Phone: 215-366-5371
Guarantor(s) Name: J WETTON
GEORGE Cellphone Number: 267-539-7231 Email Address: COM
GEORGEKHCONSTRUCTIONCORP
Mailing Address: POBOX154 City: HUNTINGDON
VALLEY State: PA Zip: 19006
Purchase Price:5 200,000.00 Purchased Percent 10 % Purchased Amount:5 276,000.00 Paynient Frequency WEEKLY Remittance $ 6,900-00
In consideration of payment by BET to Merchant of the Purchase Price set forth above. Merchant hereby sells. assigns and transfers to BWF (making
BWFthe absolute owner) the Purchased Percentage of all of the Merchant's payments, receipts, settlements and funds paid to or received by or for the account of Merchant
from time to time on and after the date hereof in payment or settlement of Merchan's existing and future accounts, payment intangibles. credit. debit and/or stored value card
customers'
transactions, contract rights and other entitlements arising from or relating to the payment of monies from Merchant's and/or other payors or obligors
"Receipts'-
(the "Future Receipts" or are defined as all payments made by cash. check, clearinghouse settlement, electronic transfer or other fonn of monetary
paymenri for the paynients EoMerchant 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 co BWT.
Merchant is selling a portion of a future revenue stream to BETat a discount. and is not borrowing moneyfrom BET, therefore there is no interest rate or payment schedule and no
Eime period during which the Purchased Amount must be collected by BET, The Remittance is a good faith estimate of BWF's share of the future revenue stream. Merchant going
bankrupt or going out of business. or experiencing a slowdown in business, or a delay in collecting its receivables. in and of itself. does not constitute a
breach of this Agreement. BWFis entering d1is Agreement knowing the risks diat Merchant's business may not perfonn as expected or fail. and BWF
assumes these risks based on MerchanE^s representations, warranties and covenants in this Agreeinent, whicti are designed to give BWF a reasonable and fair
opportunity to receive the benefit of its bargain- BET acknowledges that it may never receive the Purchased Amount in the event that the Merchant does not generate
sufficient revenue. Merchant and Guarantor(s)Is) are only guaranteeing their performance of the terms of this Revenue Purchase Agreement. and are not guaranteeing the payment of
the Purchased Amount. The initial Remittance shall be as described above- The Remittance is subject to adjustment as set forth in Paragraph 1.3 and Paragraph 1A
BWFwill debit the Reinittance each business day from only une depositing bank account. whicl1 account imist be acceptable to, and pre-approved by, BWF (the "Account'^) into
which Merchant and Merchant's customers shall remit the Receipts from each Transaction, until such time as BWF receives payment in full of die Purchased
Amount, Merchant hereby authorizes BET 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, provided that BETmay collect twice the Remittance amount on the date following such banking holiday: BWFmay alter the Payment
Frequency from weekly 10 daily upon Event of Default or missed RemitEnnce. Merchant agrees not to makeor cause debits to the Account (other than in favor of BWF)at any Eimethat
would cause the balance therein on any business day to be insufficient to fund paynient in full of the agreed Reinittance. The Account may not be used for any personal. fainity or
household purposes. Merchant will provide BWFwith all required access codes and monthly bank statements regarding die Account so diat BWF may monitor the Account.
BWF payment of the Purctiase Price shall be deemed the acceptance and performance by BWF of this Agreement. Merchant understands that it is
responsible for ensuring that the agreed Remittance to be debited by BET remains in the Account and will be held responsible for any fees incurred by BWFresulting from a
rejected ACH attempt or an Event of Default- BWF is not responsible for any overdrafts or rejected transactions that may Evsult from BWTs ACH debiting the
agreed Remittance under the terms of this Agreement- Notwithstanding anything to the contrary in this Agreement or any other agreement between BWF and
Merchant. upon the occurrence of an Event of Default of the MERCHANT AGREEMENTTERMSANDCONDITIONSdie Purchased Percentage shall equal 100% A
list of all fees applicable under this Agreement is contained in Appendix A.
THE MERCHANTAGREEMENT"TERMSAND CONDITIONS", THE "SECURITY AGREEMENTAND GUARANTY"AND THE
"ADMINISTRATIVEFORM
HEREOF,AREALLHEREBY IN ANDMADE
INCORPORATED A PARTOFTHIS AERCHANT
AGREERENT.
Docu5igned
by;
FORTHEMERCHANT
f#DBy: J WETTON
GEORGE ff EN
(Print Nameand Title) 2788FdMA14C9 ( S0 Ha0Ure)
FORTHEMERCHANT
(#2)By:
(Print Nameand Title) (SignatUre)
Docu5igned
by;
BYGUARANTOR(S)
(#l)By: J WETTON
GEORGE fô f$ f `CT/fPM
(Print Nameand Title) 2788FdMA14C9 ( S0 na0UT)
BY GUARANTOR(S)
(#2)By:
(Print Nameand Title) (Signature)
By: Birchwood Funding ("BWF")
(Print Nameand Title) (Signature)
on
202407031762 [- IndexNO.
#: E2024011037
FILED: MONROE
uuuumncomope COUNTY CLERK 07/03/2024
ID:313F5C2C-24EC-4090-9F05-F160A39289E6 7 04:49 PM INDEX E2024011037
NYSCEF DOC. NO. 2 LJ RECEIVED NYSCEF: 07/03/2024
Birchwood Funding
MERCHANT ANDCONETWNS
TFRMS
AGREFAFFNT
1 TERMSOFENROLLMENT
IN PROGRAM
L1 Merchant Depmit Agreement and ProceSNor. Merchant shall (A) execute an agreement acceptable to BWF
with a Bank acceptable to BWF
to obtain electronic
fund transfer services for the Account. and IB) if applicable, necute an agreement acceptable to BWF
with a credit and debit eard processor (the "Processor") instructing the
Processor to deposit all Receipts into the Account. Merchant shall provide BWF
and/or its authorized agent(s) with all of the information, authorizations and
passwords necessary for verifying Merchant's receivables. receipts, deposits and withdrawals into and from the Account. Merchant hereby authorizes and/or its BWF
agent(s) to withdraw from flie Account via ACHdebit the amounts owed re BWF
for the receipts as specified herein and to pay such amounts to BWF. These authoriza1ions
apply not only to the approved Account hut also to any subsequent or alternate account used by the Merchant for these deposits, whether pre-approved by or not. This BWF
additional authorization is not a waiver of BWPsentitlement to declare this Agreement breached by Merchant as a result of its usage of an account which BWFdid not
lirst pre-approve in
writing prior to Merchant-s usage thereof. The aforementioned authorizations shall be irrevocable without the written consent of BWF.
L2 Term of Agreement This Agreement shall remain in full force and etYect until fl1e entire Purchased Arnount and any other amounts due are received by BWFas he
terms of this Agreement.
I.3 Reconciliation. As long as an Event of Default. or breach of this agreement, has not occurred, Merchant, at any time, may request a retroactive reconciliation of the total
Remittance Amount. All requests hereunder must be in writing to infoárimcaservicingcompany.cm Said request must include copies of all of Merchant's bank account
statements, credit card processing statements, and accounts receivable report outstanding if applicable, from the date of this Agreement through and including the date the request is
made. If you have questions or comments about your financing. you may contact us by e-mail at qtrestion measervicingcompany.com. BWF retains the right to
reasonably request additional documentation including bank login or occess to view all Merchant's accounts using third party software, to correctly and accurately perform the
reconciliation and Merchant's refusal to provide BWFsrequirement to perform a reconciliation until the Merchant provides the appropriate documents for
access shall negate
BWFto perform a reconcilia1ion. shall be performed by
Sucli reconciliation. if applicable. BWF
within five (5) Business Days following its receipt of Mereliant's request for
reconciliation and supporting documentalion by either crediting or debiting the difference back to, or from, Merchant-s Bank Account so that the total amount debited by
BWFshall equal the Specific Percentage of the Future Receipts that Merchant collected during the contract term.
l,4 Adjustmats to the Remittance. As [ong as an Event of Default, or breach of this agreement. has not occurred. Merchant nay give notice to BWFto request a
decrease in the Remi1tance. should they experience a decrease in its Future Receipts. All requests hereunder must he in writing to
info(fUmcaservicingcompany.com and must include copies of all of Merchant's bank account statements, credit card processing statements, and accounts receivable
reportoutstanding from the date of this Agreement through and including the date the request is made. BWF retains the right to reasonably request additional
documentation including bank login or 3rd party settware access 10 view all Mereliant's accounts, refusal to provide access shall negate BWFs obligation to adjust
flie Remittance until the Merchant provides the appropriate documentation. The Remittance shall be modified to more elosely reflect the Merchant's actual receipts by
multiplying the Merchant's actual receipts by the Purchased Percentage divided by the number of business days in the previous (2) calendar weeks. Merchant
shall provide BWF
with viewing occess to their bank account as well as all information reasonably requested by to properly calculate BWF
the Merchant's
Remittance. At the end of the two (2) ealendar weeks the Merchant may request another adjustment pursuant to this paragraph or it is agreed that the Merchant's
Remittance shall return to the Remittance as agreed upon on Page 1 of this Agreement.
1.5 Financial Condition.
Merchant and Guarantor(s)(s) los hereinafler defined and limited) outhorize BWF
and its agents to investigate their financial responsibility and history,
and will provide to BWF
any authorizations. bank or tinancial statements, tax returns. etc.. as BWF
requests in its sole and absolute discretion prior to or at any time after
execution of this Agreement. A photocopy of rliis authoriza1ion will be deemedas acceptable us an autliorization for release of financial and credit information. is authorizedBWF
to update such information and financial and credit profiles from time to time as it deems oppropriate. Merchant shall provide bank login information, or 3rd party software occess,
to view Merchant's Account in connection with this Agreement. If Merchant changes the Account's login information. Merchant must provide BWF with the updated login
information within 48 hours of such change. Merchant understands and agrees that BWPsaccess re rlie Account is expressly limi1ed to monitoring for detliults under the
in writing
Agreement. UponBWFsremwt. Merchant shall within 48 hours provide login information to its bookkeeping settware and/or provide weekly accounts receivable aging reports.
I.§ Transactional Histm. Merchant authorizes all of its banks. brokers and processor to provide BWFwith Merchant's banking. brokerage and/or processing history to
detennine qualification or continuation in rliis program and for collections purposes. Merchant shall provide BWF
wirli copies of any documents related to Merchant's caid
processing activity or financial and banking affairs within five days after a request from BWF.
I.7 Indemnification. Merchant and Guarantor(s)(si hereby jointly and severaffy indenmify and hold harmless BWF
and each Processor. their respective officers. directors, agents
and represematives, contractors, affiliales, and shareboIders against all losses, damages, costs, claims, liabilities and expenses (including reasonable attorney's fees) incurred by any
such indemnifying acts or actions as a direct or indirect resuit of (al claims asserted by BWF
for monies owed to BWF
from Merchant and (b) actions taken by indemnitee in
reliance upon any fraudulent. misleading or decep1ive information or instructions provided by Me1thant or Guarantor(s).
1.8 No Liability. BWFbe liable for any claims asserted by Merchant or GuaranIord s)s under any legal or equitable theory for lost profits, lost revenues, lost
In no event will
business opportmlities. punitive, special. incidental, indirect or consequential damages, each of which is waived by both Merchant and Guarantor(s)(s). In the event
exemplary,
these elaims ure nonetheless raised, Merchant and Guarantorisi s will be jointly liable for all of BWT's attorney's fees and expenses resulting therefrom.
1.9 Reliance on Terms. Section 1.1, 14 1.7, L8 and 2.5 of this Agreement are agreed to for the benefit of Merchant, BWF, Processor, and Merchant's bank and notwithstanding
the fact that Processor and the bank is not a party of this Agreement, Processor and the bank may rely upon their terms and raise them as a defense in any action.
LHI Sale of Receipts. Merchant and BWF
agree that the Purchase Price under this Agreement is in exchange for the Purchased Amount. and that such Purchase
Price is not intended to be, nor shall it be etmstrued as a loan from BWF
to Merchant. Merchant agrees that the Purchase Price is in exchange for the Receipts pursuant
to this Agreement, and that it equals the fair market value ofsuch Receipts. BWF
has purchased and shall own all the Receipts described in this Agreement up to the full Purchased
Amountas the Receipts are created. Merchani acknowledges that BWPsshare of Receipts collected are being held by Merchant in trust and are the sole property of BWFuntil
they are remitted to BWF
and sha[I not use BWFsshare of Receipts and shall reflect BWFsownership of BWFsshare of Receipts on its books and records. Paymentsmade to
BWF in respect to the full amount of the Receipts shall be conditioned upon Merchant's sale of products and se1vices. und the payment therethre by Merchant's custonters. By this
Agreement, Merchant transfers to BWFfull
and complele ownership of the Purchased Amomitand Merchant retains no legal or equitable interest therein. BWFhereby appoints
Merchant and Merchant accepls appointment. as servicer for and on beha[f of BWF
thr the purpose of collecting and de[ivering Receipts to BWFas required by this Agreement
until BWF has received the Receipts Pu1thased Amount, and Merchant agrees that all such Receipts shall be received and held in trust for the benefit of for purposes BWF
of carrying out the terms of this Agreement. Merchant agrees that it will treat the amounts received and the Purchased Receipts delivered to BWF
under this Agreement in a manner
consistent with a sale in its accounting records and tax retums. Merchant agrees that BWF
is entitled to audit Merchant's accounting records upon reasonable notice in order to
verify compliance. Merchant waives uny rights of privacy. confidentiality or taxpayer privilege in any such li1igation or arbitration in which Merchant asserts that this1ransaction is
anything other than a sale of future receipts. In no event shall the aggregate of all amounts or any portion thereof he deemedas interest hereunder, and in the event it is found to be
interest despite the parties hereto specifically representing that it is NOTinterest, it shall be found that no sum charged or collected hereunder shall exceed the highest rate
permissible at law. In the event that a court nonetheless determines that BWF
has charged or received interest hereunder in excess of the highest applicable rate, the rate in effect
hereunder shall automatically be reduced to the maximumrate permitted by applicable law and BWFshall promptly refund to Merchant any interest received by in excess of BWF
the maximumlawful rate, it being intended that Merchant not pay or contract to pay. and that BWF not receive or contract to receive, directly or indirectly in any
manner whatsoever, interest in excess of that which may be paid by Merchant under applicable law. As a result thereof, Merchant knowingly and willingly waives the defense of
Usury in any action or proceeding should this transaction be deemedthat ofa loan and not a purchase of receivables.
on
202407031762 IndexNO.
INDEX #: E2024011037
E2024011037
FILED: MONROE
uuuumncomope COUNTY CLERK 07/03/2024 04:49 PM
ID: 313F5C2C-24EC-4090-9F05-F160A39289E6
NYSCEF DOC. NO. 2 LJ RECEIVED NYSCEF: 07/03/2024
Birchwood Funding
1.11 Power of Attorney. Power of Attorney, Merchant iirevocably appoints BWFand its agents and representatives, as its agent and attorney-in-fact with full authority to take any
action or execute any instrun1ent or document to settle and ensure payment of all obligations due to BWFfrom Processor or Merchant, regardless of whether the obligation is current or
due to a violation by Merchant of Section 1 or the occurrence of an Event of Default under Section 3 hereof, including without limitation: (i) to obtain and adjust insurance; lii) to collect
monies due or to become due under or in respect of any of the CotEaterak (iii) to receive, endorse and collect any checks, notes, drafts, instruments, documents or chatte[ paper in
connection with clause li) or elause lii) above; (iv) to sign Me1thant's nameon any invoice, bill of lading, or assignment directing customers or account debtors to make payment directly
Guarantor(s)'
to BWF: (v) to contact Merchant's banks and financial institutions using Merchant and personal information to verify the existence of an account and obtain
account balances: and (vi) to tile any claims or take uny action or institute any proceeding which BWF
may deem necessary for the collection of any of the unpaid Purchased Amount
from the Collateral. or otherwise to enforce its rights with respect to payment of the Purchased Amount including hut not limited to. notifying and instructing aceoi1nt debtors of Merchant
and any of Melchant's Processors to remit payment of accounts und other colluteral owed to Merchant directly 10 BWT. In connection therewith. all costs. expenses and fees. including
legal fees, shall be payable by Merchant.
1.12 Protection of Information. Merchant and each person signing this Agreement on behalf of Merchant and/or as Owner or Guaranteri st in respect of him self
for herself personally, authorizes BWF to disclose information concerning Merchant's and each Owner's and each Guarantor(s)^s credit standing (including credit
bureau reports that BWF
oblains) and business conduct only le agents, affiliates, subsidiaries, and credit reporting bureaus. Merchant and each Owner and
each Guarantor(s) hereby and each waives to the maximumextent permitted by Iaw any claim for damages against BWT or any of its affiliates relating to any
(i)investigation undertaken by or on behalf of BWF as permitted by this Agreement or iii) disclosure of information as permilted by this
Agreement.
1.13 Conndentiality. Merchant understands and agrees that the terms and condilions of the prod11cts and services offered by BWF,including this Agreement and
any other BWF
documents (coHectively, "Confidential Information") are proprietary and confidential information of BWT. Accordingly, unless disclosure is required by
law or court order, Merchant shall not disclose Confidential Information of BWF to any person other than an attorney, accountant, financial advisor or employee of
Merchant who needs to know such information for the purpose of advising Merchant FAdvisor"), provided such Advisor uses such information solely for the purpose of
advising Merchant and first agrees in writing to be bound by the terms of this section. A
breach hereof entitles BWF to not only damages and reasonable attorney's fees
but also to both a Temporary Restraining Order and a Preliminary Injunction without Bond or Security-
1.14 Publicity. Merchant and each of Merchant's Owners and at[ Guarantor(s) here to at[ hereby authorizes BWFto use its his or her name in listings of elients
and in advertising and marketing materials.
as" "¦Wo''
1.15 D/B/Ai Merchant hereby acknowledges and agrees that BWFmay be using "doing business or names in connection with various matters relating
10 the transaction between BWFand Merchant including the tiling ofUCC-1 tinancing statements and other notices or lilings.
1.16 Authority to
Contact. Merchant and Owner/Guarantor(s) explicitly agree to be contacted by and its agents and afillistes BWF
by telephone, email and/or
SMS / text messaging provided in connection with this Agreement and agree to cover all usual third-pa1ty costs or charges that may be associated with such
contacts. Merchant and Owner/GuaranIor(s) understand that they are not required to agree to this paragraph as a condition of entering this Agreement.
1.17 Anthority to Service Accounts. In the event Mereliant is unable or unwilling to collect all or some of the Receipts, BWF shall have the right, without
waiving any of its other rights and remedies under this Agreement. to notify the Processor. any other credit card or payment processor used by Merchant, or
any third party having monies owed to Merchant for its sale or de[ivery of goods or services (including without limitation Merchant's custernersh of the sc[e of the
Specified Percentage of the Receipts under this Agreement, and 10 direct such credit card. payment processor or other third party to make payment to BWFof all
or any portion of the amounts received by such credit enrd, payment processor or third party on behalf of Merchant. If no Event of Default has occurred, BWF
shall remit back re Merchant the excess above the Specilled Percentage of the Receipts that it collected pursuant to this paragraph within 2 business days of payment
and shall provide a reconciliation in accordance with paragraph 13.
2 WARRANTIES
REPRESENTATIONS, ANDCOVENANTS
Merchant represents warrants and covenants that, as of this date and during the term of this Agreement:
Guarantor(s)s'
2.1 Financial Condition and Financial Information. Merchant's and bank and tinancial statements, copies of whicli have been furnished to BWF. and
future statements which will be furnished hereafter at the discretion of BWF, and any other materials and information and statements made in connection with this
Agreement are complete and truthful and fairly represent the financial condition of Merchant of such dates, and since those dates there has been no materini adverse
changes, financial or otherwise, in such condition, operation or ownership of Merchant. Merchant and Guarautor(sis have a continuing, affirmative obligation to advise BWF
of any material adverse change in their tinancial condition. operation or ownership. BWF mayrequest statements of any time during the performance of this Agreement and
the Merchant and Guarantor(sis shall provide them to BWF
withiu five business days after request from BWF. Merchant's or
Guarantor(s)s'
failure to do so is a material
breach of this Agreement.
2.2 Governmental AJprovals. Merchant is in compliance and shall comply with a11 laws and has valid permits. authorizations and licenses to own, operate and lease
its properties and to conduct the business in which it is presently engaged and/or will engage in hereafter.
2.3 Authorization. Merchant, and the person(si signing this Agreement on behalf of Merchant, have full power and authority to incur and perform the obligations under this
Agreement all of which have been duly authorized.
2.4 Use of Funds. Merchant agrees that it shall use the Purchase Price for business purposes and not for personal, family, or household purposes.
2.5 Electronic Check Processing Agreement. Merchant will not change its Processor, add terminals, change its financial institution or bank accounig si or take any
other action that could have any adverse etTect upon Merchant's obligations under this Agreement, without BWFs prior written consent. Any such changes shall be a
material breach of this Agreement.
2.6 Change of Name or Location. Merchant wiII not conduct Merchant's businesses under any name other than as disclosed to the Processor and BWF, nor shall Merchant
change any of its places of business without prior written notifico1ion to BWF.
2.7 Daily Batch Out. Merchant will batch out receipts with the Processor on a daily basis if applicable.
2.8 FAoppel Certificate. Merchant will at every and all times. and from time re time, upon at least one I fi day's prior notice from BWF
to Merchant execute, acknowledge and deliver to
BWFand/or to any other person. tirm or corporation specified by BWF, a statement certifying that this Agreement is unmodified and in fulI force and effect (or, if there have been
modifications, that the sameis in full three and effect as modified and stating the moditications) and stating the dates w]1ich the Purchased Amount or any portion thereof has been repaid.
2.9 No Bankruptcy. As of the date of this Agreernett, Merchant is not insolvent and does not contemplate tiling thr banlauptcy in the next six (6) months and has not consulted with a
bankruptcy altorney or tiled any petition for bankruptcy protection pursuant to the United States Bankruptcy Code and there has been no involuntary petition brought or pending against
Merchant, Merchant further warrants thal it does not anticipate filing any such bankruptcy petition nor does Merchant anticipate that an involuntary petition will be filed against Merchant.
Notwithstanding. the Merchant's tiling for bankruptcy shall not constitute an event of default under this Agreement.
2.10 Unencumbered Receipts. Merchant has good, complete, uneneumberedand marketable title to all Receipts and all collateral in which BWFhas been granted a security interest
under the Security Agreement free and elear of any and all liabilities, liens, elaims, charges, restrictions, conditions, options. rights, mortgages, security interests, equities, pledges and
encumbrances of any kind or nature whatsoever other thau in favor of BWFor any other rights or interests ibat maybe inconsistent with the transactions contemplated with, or adverse to
the interests ofBWF-
2.11 Business Purpose, Merchant is a valid business in good standing under the laws of the jurisdictions in which it is organized ander operates. and Merchant is entering in to this
Agreement for business purposes and not as a consaner for personal, family or bousehold purposes.
2.12 Defaul6 under Other Contracts. Merchant's execution of. and/or performance under this Agreement, will not cause or create an event of default by Merchant under any contract
with another person or entity.
2.13 GondFaith. Merchant and Guarantor(s)s hereby affirm that Merchant is receiving the Purchase Price and selling BWFthe Purchased Amount in good faith and will use the Purchase
Price funds to maintain and grow Merchant's business.
as
202407031762
FILED: MONROE
uuuumncomope COUNTY CLERK 07/03/2024
ID:313F5C2C-24EC-4090-9F05-F160A39289E6 “ 7 04:49 PM IndexNO.
INDEX #: E2024011037
E2024011037
NYSCEF DOC. NO. 2 LJ RECEIVED NYSCEF: 07/03/2024
Birchwood Funding
3 EVENTSOFDEFAULTANDREMEDIES
Default"
3.1 Events of Defauk. The occurrence of any of the following
events shall constitute an "Event of hereunder; (s) Merchant or Guarantor(s) shall violate any term or covenant in
this Agreement (b) Any replesentation or warranty by Me1thant or Guaran1or(s) in this Agreement shall prove to have been incorrect, false or misleading in any material respect when
made: ic) the sending of notice of tennination by Merchant or verbally notifying BWFof its intent to breach this Agreement: (d) the Merchant fails to request a Reconciliation or
Adjustments to the Remittance pursuant to Paragraphs 1.3 & 1.4 (as appropriatel
within 1 business day of a Merchant's Remittance returned ofinsufficient funds in the Account such that
the ACHof the Remittance amount was not be honored by Merchant's bank: (e) Merchant fails to provide its bank statements, and/or month to date bank activity, occounts receivable
reports, and/or bank login information within two (2) business days of a request by BWF, or the merchant changes their bank login information (which was previously-provided to BWF)
without providing BWFwith the updated login information in writing within 48 hours of such update; (fi Merchant shall voluntarily transfer or sell all or substantially all of its assets: igi
Merchant shall make or send notice of any intended bulk sale or transfer by Merchant; th) Merchant shall use multiple depository accounts without the prior written consent of or BWF
takes any other action that inten1ionally interferes with or prevents BWFfrom receiving the Purchased Amount in accordance with the terms of this Agreement: lil Merchant shall enter into
any financing agreements with any other party including but not limited to: Loans. Merchant Cash Advances. Receivables financing, or any other agreement that will increase the total debt
owed by Merchant to any other party: ij) Merchant shall change its depositing account without the prior written consent of BWF: iki Merchant shall close its depositing account used for
ACHdebits without the prior written consent of BWF: (1) Merchant's bank returns a code other than NSF cutting BWFfrom its collections: (m) Merchant or any Owner/ Guarantorts),
directly or indirectly, causes lo be formed a new entity or otherwise becomesassocialed with any new or existing entity, which operates a business similar to or competitive with that of
Merchant; or (n) Merchant shall default under any of the terrns, covenants and conditions of any other agreement with BWF.
3.2 Limked Personal Guaranty. Guarantor shall provide u limited guaranty of performance in connection with this Agreement rGuaiunty"I- Tlle Guaranty shall only guaranty
the Merchant's pertbrmance of the cownants, representations and conditions of this Agreement and shall not guarantee the Remittance payment except upon the occurrence of an
Event of Default, Upon the occurrence of an Event of Default BWFwill enfoice its rights against the Guarantor(s) of this transaction. Said Guaranto11st will be jointly and
severally liable to BWFfor all of BWFslosses and Guarantor(s) will be jointly and severally liable to BWFfor all of BWFslosses and damages, in additional to all costs and
expenses and legal fees ussociated with such enforcement. For the uvoidance of doubt the Guarantor shall not be liable in the event that the Merchant is not liable under fliis
Agreement.
33 Remedies Upon the occurrence of an Event of Default that is not waived pursuant to Section 4A hereof. BWFmay proceed to protect and enforce its rights or remedies by suit in
equity or by action at law, or both,
Preview
FILED: MONROE COUNTY CLERK 07/03/2024 04:49 PM INDEX NO. E2024011037 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/03/2024 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3928682 Book Page CIVIL Return To: No. Pages: 10 ARIEL BOUSKILA 1545 US 202 Instrument: EXHIBIT(S) Suite 101 Pomona, NY 10970 Control #: 202407031762 Index #: E2024011037 Date: 07/03/2024 BIRCHWOOD FUNDING Time: 5:17:27 PM KH CONSTRUCTION MANAGEMENT CORPORATION KH CONSTRUCTION MGMT CORP KH CONSTRUCTION MANAGEMENT CORPORAT GJW BUILDER, INC. KH CONSTRUCTION MANAGEMENT CORP. 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 202407031762 l- Index # INDEX : E2024011037 NO. E2024011037 FILED: MONROE uuuuomu¤wavpe COUNTY CLERK 07/03/2024 ID: 313F5C2C-24EC-4090-9F05-F160A39289E6 04:49 PM NYSCEF DOC. NO. 2 LJ RECEIVED NYSCEF: 07/03/2024 Bimhwood Funding REVENUE AGREEMENT PURCHASE This RevenuePurchase Agreement and Security Agreement and Guaranty of Performance ("Agreement") dated December27, 2023 between Birchwood Funding ("BWF") the Merchant(s) listed below ("Merchant") and the Individual(s) listed below ("Guarantor") MERCHANTINFORMATIO-N Merchant's LegalName: KHCONSTRUCTION MANAGEMENT CORPORATION KHCONSTRUCTION MANAGEMENT CORP / KHCONSTRUCTION MANAGEMENT CORPORAT / KHCONSTRUCTION MGMTCORP/ KHCONSTRUCT[ON MANAGEMENT CORP KHCONSTRUCTION / KHCONSTRUCTION MANAGEMENT COR/ KRISTEN MANAGEMENT CORP/ GJWBUltDER, INC. D/B/A: KHCONSTRUCTION MANAGEMENT State of Incorporation / Organization: PA Type of Entity: Corp. LLC Q Physical Address: 228 DAVISVILLE RD Other: O sole ProPO City: WILLOW GROVE State: PA Zip: 19090 Business Phone: 215-366-5371 Guarantor(s) Name: J WETTON GEORGE Cellphone Number: 267-539-7231 Email Address: COM GEORGEKHCONSTRUCTIONCORP Mailing Address: POBOX154 City: HUNTINGDON VALLEY State: PA Zip: 19006 Purchase Price:5 200,000.00 Purchased Percent 10 % Purchased Amount:5 276,000.00 Paynient Frequency WEEKLY Remittance $ 6,900-00 In consideration of payment by BET to Merchant of the Purchase Price set forth above. Merchant hereby sells. assigns and transfers to BWF (making BWFthe absolute owner) the Purchased Percentage of all of the Merchant's payments, receipts, settlements and funds paid to or received by or for the account of Merchant from time to time on and after the date hereof in payment or settlement of Merchan's existing and future accounts, payment intangibles. credit. debit and/or stored value card customers' transactions, contract rights and other entitlements arising from or relating to the payment of monies from Merchant's and/or other payors or obligors "Receipts'- (the "Future Receipts" or are defined as all payments made by cash. check, clearinghouse settlement, electronic transfer or other fonn of monetary paymenri for the paynients EoMerchant 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 co BWT. Merchant is selling a portion of a future revenue stream to BETat a discount. and is not borrowing moneyfrom BET, therefore there is no interest rate or payment schedule and no Eime period during which the Purchased Amount must be collected by BET, The Remittance is a good faith estimate of BWF's share of the future revenue stream. Merchant going bankrupt or going out of business. or experiencing a slowdown in business, or a delay in collecting its receivables. in and of itself. does not constitute a breach of this Agreement. BWFis entering d1is Agreement knowing the risks diat Merchant's business may not perfonn as expected or fail. and BWF assumes these risks based on MerchanE^s representations, warranties and covenants in this Agreeinent, whicti are designed to give BWF a reasonable and fair opportunity to receive the benefit of its bargain- BET acknowledges that it may never receive the Purchased Amount in the event that the Merchant does not generate sufficient revenue. Merchant and Guarantor(s)Is) are only guaranteeing their performance of the terms of this Revenue Purchase Agreement. and are not guaranteeing the payment of the Purchased Amount. The initial Remittance shall be as described above- The Remittance is subject to adjustment as set forth in Paragraph 1.3 and Paragraph 1A BWFwill debit the Reinittance each business day from only une depositing bank account. whicl1 account imist be acceptable to, and pre-approved by, BWF (the "Account'^) into which Merchant and Merchant's customers shall remit the Receipts from each Transaction, until such time as BWF receives payment in full of die Purchased Amount, Merchant hereby authorizes BET 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, provided that BETmay collect twice the Remittance amount on the date following such banking holiday: BWFmay alter the Payment Frequency from weekly 10 daily upon Event of Default or missed RemitEnnce. Merchant agrees not to makeor cause debits to the Account (other than in favor of BWF)at any Eimethat would cause the balance therein on any business day to be insufficient to fund paynient in full of the agreed Reinittance. The Account may not be used for any personal. fainity or household purposes. Merchant will provide BWFwith all required access codes and monthly bank statements regarding die Account so diat BWF may monitor the Account. BWF payment of the Purctiase Price shall be deemed the acceptance and performance by BWF of this Agreement. Merchant understands that it is responsible for ensuring that the agreed Remittance to be debited by BET remains in the Account and will be held responsible for any fees incurred by BWFresulting from a rejected ACH attempt or an Event of Default- BWF is not responsible for any overdrafts or rejected transactions that may Evsult from BWTs ACH debiting the agreed Remittance under the terms of this Agreement- Notwithstanding anything to the contrary in this Agreement or any other agreement between BWF and Merchant. upon the occurrence of an Event of Default of the MERCHANT AGREEMENTTERMSANDCONDITIONSdie Purchased Percentage shall equal 100% A list of all fees applicable under this Agreement is contained in Appendix A. THE MERCHANTAGREEMENT"TERMSAND CONDITIONS", THE "SECURITY AGREEMENTAND GUARANTY"AND THE "ADMINISTRATIVEFORM HEREOF,AREALLHEREBY IN ANDMADE INCORPORATED A PARTOFTHIS AERCHANT AGREERENT. Docu5igned by; FORTHEMERCHANT f#DBy: J WETTON GEORGE ff EN (Print Nameand Title) 2788FdMA14C9 ( S0 Ha0Ure) FORTHEMERCHANT (#2)By: (Print Nameand Title) (SignatUre) Docu5igned by; BYGUARANTOR(S) (#l)By: J WETTON GEORGE fô f$ f `CT/fPM (Print Nameand Title) 2788FdMA14C9 ( S0 na0UT) BY GUARANTOR(S) (#2)By: (Print Nameand Title) (Signature) By: Birchwood Funding ("BWF") (Print Nameand Title) (Signature) on 202407031762 [- IndexNO. #: E2024011037 FILED: MONROE uuuumncomope COUNTY CLERK 07/03/2024 ID:313F5C2C-24EC-4090-9F05-F160A39289E6 7 04:49 PM INDEX E2024011037 NYSCEF DOC. NO. 2 LJ RECEIVED NYSCEF: 07/03/2024 Birchwood Funding MERCHANT ANDCONETWNS TFRMS AGREFAFFNT 1 TERMSOFENROLLMENT IN PROGRAM L1 Merchant Depmit Agreement and ProceSNor. Merchant shall (A) execute an agreement acceptable to BWF with a Bank acceptable to BWF to obtain electronic fund transfer services for the Account. and IB) if applicable, necute an agreement acceptable to BWF with a credit and debit eard processor (the "Processor") instructing the Processor to deposit all Receipts into the Account. Merchant shall provide BWF and/or its authorized agent(s) with all of the information, authorizations and passwords necessary for verifying Merchant's receivables. receipts, deposits and withdrawals into and from the Account. Merchant hereby authorizes and/or its BWF agent(s) to withdraw from flie Account via ACHdebit the amounts owed re BWF for the receipts as specified herein and to pay such amounts to BWF. These authoriza1ions apply not only to the approved Account hut also to any subsequent or alternate account used by the Merchant for these deposits, whether pre-approved by or not. This BWF additional authorization is not a waiver of BWPsentitlement to declare this Agreement breached by Merchant as a result of its usage of an account which BWFdid not lirst pre-approve in writing prior to Merchant-s usage thereof. The aforementioned authorizations shall be irrevocable without the written consent of BWF. L2 Term of Agreement This Agreement shall remain in full force and etYect until fl1e entire Purchased Arnount and any other amounts due are received by BWFas he terms of this Agreement. I.3 Reconciliation. As long as an Event of Default. or breach of this agreement, has not occurred, Merchant, at any time, may request a retroactive reconciliation of the total Remittance Amount. All requests hereunder must be in writing to infoárimcaservicingcompany.cm Said request must include copies of all of Merchant's bank account statements, credit card processing statements, and accounts receivable report outstanding if applicable, from the date of this Agreement through and including the date the request is made. If you have questions or comments about your financing. you may contact us by e-mail at qtrestion measervicingcompany.com. BWF retains the right to reasonably request additional documentation including bank login or occess to view all Merchant's accounts using third party software, to correctly and accurately perform the reconciliation and Merchant's refusal to provide BWFsrequirement to perform a reconciliation until the Merchant provides the appropriate documents for access shall negate BWFto perform a reconcilia1ion. shall be performed by Sucli reconciliation. if applicable. BWF within five (5) Business Days following its receipt of Mereliant's request for reconciliation and supporting documentalion by either crediting or debiting the difference back to, or from, Merchant-s Bank Account so that the total amount debited by BWFshall equal the Specific Percentage of the Future Receipts that Merchant collected during the contract term. l,4 Adjustmats to the Remittance. As [ong as an Event of Default, or breach of this agreement. has not occurred. Merchant nay give notice to BWFto request a decrease in the Remi1tance. should they experience a decrease in its Future Receipts. All requests hereunder must he in writing to info(fUmcaservicingcompany.com and must include copies of all of Merchant's bank account statements, credit card processing statements, and accounts receivable reportoutstanding from the date of this Agreement through and including the date the request is made. BWF retains the right to reasonably request additional documentation including bank login or 3rd party settware access 10 view all Mereliant's accounts, refusal to provide access shall negate BWFs obligation to adjust flie Remittance until the Merchant provides the appropriate documentation. The Remittance shall be modified to more elosely reflect the Merchant's actual receipts by multiplying the Merchant's actual receipts by the Purchased Percentage divided by the number of business days in the previous (2) calendar weeks. Merchant shall provide BWF with viewing occess to their bank account as well as all information reasonably requested by to properly calculate BWF the Merchant's Remittance. At the end of the two (2) ealendar weeks the Merchant may request another adjustment pursuant to this paragraph or it is agreed that the Merchant's Remittance shall return to the Remittance as agreed upon on Page 1 of this Agreement. 1.5 Financial Condition. Merchant and Guarantor(s)(s) los hereinafler defined and limited) outhorize BWF and its agents to investigate their financial responsibility and history, and will provide to BWF any authorizations. bank or tinancial statements, tax returns. etc.. as BWF requests in its sole and absolute discretion prior to or at any time after execution of this Agreement. A photocopy of rliis authoriza1ion will be deemedas acceptable us an autliorization for release of financial and credit information. is authorizedBWF to update such information and financial and credit profiles from time to time as it deems oppropriate. Merchant shall provide bank login information, or 3rd party software occess, to view Merchant's Account in connection with this Agreement. If Merchant changes the Account's login information. Merchant must provide BWF with the updated login information within 48 hours of such change. Merchant understands and agrees that BWPsaccess re rlie Account is expressly limi1ed to monitoring for detliults under the in writing Agreement. UponBWFsremwt. Merchant shall within 48 hours provide login information to its bookkeeping settware and/or provide weekly accounts receivable aging reports. I.§ Transactional Histm. Merchant authorizes all of its banks. brokers and processor to provide BWFwith Merchant's banking. brokerage and/or processing history to detennine qualification or continuation in rliis program and for collections purposes. Merchant shall provide BWF wirli copies of any documents related to Merchant's caid processing activity or financial and banking affairs within five days after a request from BWF. I.7 Indemnification. Merchant and Guarantor(s)(si hereby jointly and severaffy indenmify and hold harmless BWF and each Processor. their respective officers. directors, agents and represematives, contractors, affiliales, and shareboIders against all losses, damages, costs, claims, liabilities and expenses (including reasonable attorney's fees) incurred by any such indemnifying acts or actions as a direct or indirect resuit of (al claims asserted by BWF for monies owed to BWF from Merchant and (b) actions taken by indemnitee in reliance upon any fraudulent. misleading or decep1ive information or instructions provided by Me1thant or Guarantor(s). 1.8 No Liability. BWFbe liable for any claims asserted by Merchant or GuaranIord s)s under any legal or equitable theory for lost profits, lost revenues, lost In no event will business opportmlities. punitive, special. incidental, indirect or consequential damages, each of which is waived by both Merchant and Guarantor(s)(s). In the event exemplary, these elaims ure nonetheless raised, Merchant and Guarantorisi s will be jointly liable for all of BWT's attorney's fees and expenses resulting therefrom. 1.9 Reliance on Terms. Section 1.1, 14 1.7, L8 and 2.5 of this Agreement are agreed to for the benefit of Merchant, BWF, Processor, and Merchant's bank and notwithstanding the fact that Processor and the bank is not a party of this Agreement, Processor and the bank may rely upon their terms and raise them as a defense in any action. LHI Sale of Receipts. Merchant and BWF agree that the Purchase Price under this Agreement is in exchange for the Purchased Amount. and that such Purchase Price is not intended to be, nor shall it be etmstrued as a loan from BWF to Merchant. Merchant agrees that the Purchase Price is in exchange for the Receipts pursuant to this Agreement, and that it equals the fair market value ofsuch Receipts. BWF has purchased and shall own all the Receipts described in this Agreement up to the full Purchased Amountas the Receipts are created. Merchani acknowledges that BWPsshare of Receipts collected are being held by Merchant in trust and are the sole property of BWFuntil they are remitted to BWF and sha[I not use BWFsshare of Receipts and shall reflect BWFsownership of BWFsshare of Receipts on its books and records. Paymentsmade to BWF in respect to the full amount of the Receipts shall be conditioned upon Merchant's sale of products and se1vices. und the payment therethre by Merchant's custonters. By this Agreement, Merchant transfers to BWFfull and complele ownership of the Purchased Amomitand Merchant retains no legal or equitable interest therein. BWFhereby appoints Merchant and Merchant accepls appointment. as servicer for and on beha[f of BWF thr the purpose of collecting and de[ivering Receipts to BWFas required by this Agreement until BWF has received the Receipts Pu1thased Amount, and Merchant agrees that all such Receipts shall be received and held in trust for the benefit of for purposes BWF of carrying out the terms of this Agreement. Merchant agrees that it will treat the amounts received and the Purchased Receipts delivered to BWF under this Agreement in a manner consistent with a sale in its accounting records and tax retums. Merchant agrees that BWF is entitled to audit Merchant's accounting records upon reasonable notice in order to verify compliance. Merchant waives uny rights of privacy. confidentiality or taxpayer privilege in any such li1igation or arbitration in which Merchant asserts that this1ransaction is anything other than a sale of future receipts. In no event shall the aggregate of all amounts or any portion thereof he deemedas interest hereunder, and in the event it is found to be interest despite the parties hereto specifically representing that it is NOTinterest, it shall be found that no sum charged or collected hereunder shall exceed the highest rate permissible at law. In the event that a court nonetheless determines that BWF has charged or received interest hereunder in excess of the highest applicable rate, the rate in effect hereunder shall automatically be reduced to the maximumrate permitted by applicable law and BWFshall promptly refund to Merchant any interest received by in excess of BWF the maximumlawful rate, it being intended that Merchant not pay or contract to pay. and that BWF not receive or contract to receive, directly or indirectly in any manner whatsoever, interest in excess of that which may be paid by Merchant under applicable law. As a result thereof, Merchant knowingly and willingly waives the defense of Usury in any action or proceeding should this transaction be deemedthat ofa loan and not a purchase of receivables. on 202407031762 IndexNO. INDEX #: E2024011037 E2024011037 FILED: MONROE uuuumncomope COUNTY CLERK 07/03/2024 04:49 PM ID: 313F5C2C-24EC-4090-9F05-F160A39289E6 NYSCEF DOC. NO. 2 LJ RECEIVED NYSCEF: 07/03/2024 Birchwood Funding 1.11 Power of Attorney. Power of Attorney, Merchant iirevocably appoints BWFand its agents and representatives, as its agent and attorney-in-fact with full authority to take any action or execute any instrun1ent or document to settle and ensure payment of all obligations due to BWFfrom Processor or Merchant, regardless of whether the obligation is current or due to a violation by Merchant of Section 1 or the occurrence of an Event of Default under Section 3 hereof, including without limitation: (i) to obtain and adjust insurance; lii) to collect monies due or to become due under or in respect of any of the CotEaterak (iii) to receive, endorse and collect any checks, notes, drafts, instruments, documents or chatte[ paper in connection with clause li) or elause lii) above; (iv) to sign Me1thant's nameon any invoice, bill of lading, or assignment directing customers or account debtors to make payment directly Guarantor(s)' to BWF: (v) to contact Merchant's banks and financial institutions using Merchant and personal information to verify the existence of an account and obtain account balances: and (vi) to tile any claims or take uny action or institute any proceeding which BWF may deem necessary for the collection of any of the unpaid Purchased Amount from the Collateral. or otherwise to enforce its rights with respect to payment of the Purchased Amount including hut not limited to. notifying and instructing aceoi1nt debtors of Merchant and any of Melchant's Processors to remit payment of accounts und other colluteral owed to Merchant directly 10 BWT. In connection therewith. all costs. expenses and fees. including legal fees, shall be payable by Merchant. 1.12 Protection of Information. Merchant and each person signing this Agreement on behalf of Merchant and/or as Owner or Guaranteri st in respect of him self for herself personally, authorizes BWF to disclose information concerning Merchant's and each Owner's and each Guarantor(s)^s credit standing (including credit bureau reports that BWF oblains) and business conduct only le agents, affiliates, subsidiaries, and credit reporting bureaus. Merchant and each Owner and each Guarantor(s) hereby and each waives to the maximumextent permitted by Iaw any claim for damages against BWT or any of its affiliates relating to any (i)investigation undertaken by or on behalf of BWF as permitted by this Agreement or iii) disclosure of information as permilted by this Agreement. 1.13 Conndentiality. Merchant understands and agrees that the terms and condilions of the prod11cts and services offered by BWF,including this Agreement and any other BWF documents (coHectively, "Confidential Information") are proprietary and confidential information of BWT. Accordingly, unless disclosure is required by law or court order, Merchant shall not disclose Confidential Information of BWF to any person other than an attorney, accountant, financial advisor or employee of Merchant who needs to know such information for the purpose of advising Merchant FAdvisor"), provided such Advisor uses such information solely for the purpose of advising Merchant and first agrees in writing to be bound by the terms of this section. A breach hereof entitles BWF to not only damages and reasonable attorney's fees but also to both a Temporary Restraining Order and a Preliminary Injunction without Bond or Security- 1.14 Publicity. Merchant and each of Merchant's Owners and at[ Guarantor(s) here to at[ hereby authorizes BWFto use its his or her name in listings of elients and in advertising and marketing materials. as" "¦Wo'' 1.15 D/B/Ai Merchant hereby acknowledges and agrees that BWFmay be using "doing business or names in connection with various matters relating 10 the transaction between BWFand Merchant including the tiling ofUCC-1 tinancing statements and other notices or lilings. 1.16 Authority to Contact. Merchant and Owner/Guarantor(s) explicitly agree to be contacted by and its agents and afillistes BWF by telephone, email and/or SMS / text messaging provided in connection with this Agreement and agree to cover all usual third-pa1ty costs or charges that may be associated with such contacts. Merchant and Owner/GuaranIor(s) understand that they are not required to agree to this paragraph as a condition of entering this Agreement. 1.17 Anthority to Service Accounts. In the event Mereliant is unable or unwilling to collect all or some of the Receipts, BWF shall have the right, without waiving any of its other rights and remedies under this Agreement. to notify the Processor. any other credit card or payment processor used by Merchant, or any third party having monies owed to Merchant for its sale or de[ivery of goods or services (including without limitation Merchant's custernersh of the sc[e of the Specified Percentage of the Receipts under this Agreement, and 10 direct such credit card. payment processor or other third party to make payment to BWFof all or any portion of the amounts received by such credit enrd, payment processor or third party on behalf of Merchant. If no Event of Default has occurred, BWF shall remit back re Merchant the excess above the Specilled Percentage of the Receipts that it collected pursuant to this paragraph within 2 business days of payment and shall provide a reconciliation in accordance with paragraph 13. 2 WARRANTIES REPRESENTATIONS, ANDCOVENANTS Merchant represents warrants and covenants that, as of this date and during the term of this Agreement: Guarantor(s)s' 2.1 Financial Condition and Financial Information. Merchant's and bank and tinancial statements, copies of whicli have been furnished to BWF. and future statements which will be furnished hereafter at the discretion of BWF, and any other materials and information and statements made in connection with this Agreement are complete and truthful and fairly represent the financial condition of Merchant of such dates, and since those dates there has been no materini adverse changes, financial or otherwise, in such condition, operation or ownership of Merchant. Merchant and Guarautor(sis have a continuing, affirmative obligation to advise BWF of any material adverse change in their tinancial condition. operation or ownership. BWF mayrequest statements of any time during the performance of this Agreement and the Merchant and Guarantor(sis shall provide them to BWF withiu five business days after request from BWF. Merchant's or Guarantor(s)s' failure to do so is a material breach of this Agreement. 2.2 Governmental AJprovals. Merchant is in compliance and shall comply with a11 laws and has valid permits. authorizations and licenses to own, operate and lease its properties and to conduct the business in which it is presently engaged and/or will engage in hereafter. 2.3 Authorization. Merchant, and the person(si signing this Agreement on behalf of Merchant, have full power and authority to incur and perform the obligations under this Agreement all of which have been duly authorized. 2.4 Use of Funds. Merchant agrees that it shall use the Purchase Price for business purposes and not for personal, family, or household purposes. 2.5 Electronic Check Processing Agreement. Merchant will not change its Processor, add terminals, change its financial institution or bank accounig si or take any other action that could have any adverse etTect upon Merchant's obligations under this Agreement, without BWFs prior written consent. Any such changes shall be a material breach of this Agreement. 2.6 Change of Name or Location. Merchant wiII not conduct Merchant's businesses under any name other than as disclosed to the Processor and BWF, nor shall Merchant change any of its places of business without prior written notifico1ion to BWF. 2.7 Daily Batch Out. Merchant will batch out receipts with the Processor on a daily basis if applicable. 2.8 FAoppel Certificate. Merchant will at every and all times. and from time re time, upon at least one I fi day's prior notice from BWF to Merchant execute, acknowledge and deliver to BWFand/or to any other person. tirm or corporation specified by BWF, a statement certifying that this Agreement is unmodified and in fulI force and effect (or, if there have been modifications, that the sameis in full three and effect as modified and stating the moditications) and stating the dates w]1ich the Purchased Amount or any portion thereof has been repaid. 2.9 No Bankruptcy. As of the date of this Agreernett, Merchant is not insolvent and does not contemplate tiling thr banlauptcy in the next six (6) months and has not consulted with a bankruptcy altorney or tiled any petition for bankruptcy protection pursuant to the United States Bankruptcy Code and there has been no involuntary petition brought or pending against Merchant, Merchant further warrants thal it does not anticipate filing any such bankruptcy petition nor does Merchant anticipate that an involuntary petition will be filed against Merchant. Notwithstanding. the Merchant's tiling for bankruptcy shall not constitute an event of default under this Agreement. 2.10 Unencumbered Receipts. Merchant has good, complete, uneneumberedand marketable title to all Receipts and all collateral in which BWFhas been granted a security interest under the Security Agreement free and elear of any and all liabilities, liens, elaims, charges, restrictions, conditions, options. rights, mortgages, security interests, equities, pledges and encumbrances of any kind or nature whatsoever other thau in favor of BWFor any other rights or interests ibat maybe inconsistent with the transactions contemplated with, or adverse to the interests ofBWF- 2.11 Business Purpose, Merchant is a valid business in good standing under the laws of the jurisdictions in which it is organized ander operates. and Merchant is entering in to this Agreement for business purposes and not as a consaner for personal, family or bousehold purposes. 2.12 Defaul6 under Other Contracts. Merchant's execution of. and/or performance under this Agreement, will not cause or create an event of default by Merchant under any contract with another person or entity. 2.13 GondFaith. Merchant and Guarantor(s)s hereby affirm that Merchant is receiving the Purchase Price and selling BWFthe Purchased Amount in good faith and will use the Purchase Price funds to maintain and grow Merchant's business. as 202407031762 FILED: MONROE uuuumncomope COUNTY CLERK 07/03/2024 ID:313F5C2C-24EC-4090-9F05-F160A39289E6 “ 7 04:49 PM IndexNO. INDEX #: E2024011037 E2024011037 NYSCEF DOC. NO. 2 LJ RECEIVED NYSCEF: 07/03/2024 Birchwood Funding 3 EVENTSOFDEFAULTANDREMEDIES Default" 3.1 Events of Defauk. The occurrence of any of the following events shall constitute an "Event of hereunder; (s) Merchant or Guarantor(s) shall violate any term or covenant in this Agreement (b) Any replesentation or warranty by Me1thant or Guaran1or(s) in this Agreement shall prove to have been incorrect, false or misleading in any material respect when made: ic) the sending of notice of tennination by Merchant or verbally notifying BWFof its intent to breach this Agreement: (d) the Merchant fails to request a Reconciliation or Adjustments to the Remittance pursuant to Paragraphs 1.3 & 1.4 (as appropriatel within 1 business day of a Merchant's Remittance returned ofinsufficient funds in the Account such that the ACHof the Remittance amount was not be honored by Merchant's bank: (e) Merchant fails to provide its bank statements, and/or month to date bank activity, occounts receivable reports, and/or bank login information within two (2) business days of a request by BWF, or the merchant changes their bank login information (which was previously-provided to BWF) without providing BWFwith the updated login information in writing within 48 hours of such update; (fi Merchant shall voluntarily transfer or sell all or substantially all of its assets: igi Merchant shall make or send notice of any intended bulk sale or transfer by Merchant; th) Merchant shall use multiple depository accounts without the prior written consent of or BWF takes any other action that inten1ionally interferes with or prevents BWFfrom receiving the Purchased Amount in accordance with the terms of this Agreement: lil Merchant shall enter into any financing agreements with any other party including but not limited to: Loans. Merchant Cash Advances. Receivables financing, or any other agreement that will increase the total debt owed by Merchant to any other party: ij) Merchant shall change its depositing account without the prior written consent of BWF: iki Merchant shall close its depositing account used for ACHdebits without the prior written consent of BWF: (1) Merchant's bank returns a code other than NSF cutting BWFfrom its collections: (m) Merchant or any Owner/ Guarantorts), directly or indirectly, causes lo be formed a new entity or otherwise becomesassocialed with any new or existing entity, which operates a business similar to or competitive with that of Merchant; or (n) Merchant shall default under any of the terrns, covenants and conditions of any other agreement with BWF. 3.2 Limked Personal Guaranty. Guarantor shall provide u limited guaranty of performance in connection with this Agreement rGuaiunty"I- Tlle Guaranty shall only guaranty the Merchant's pertbrmance of the cownants, representations and conditions of this Agreement and shall not guarantee the Remittance payment except upon the occurrence of an Event of Default, Upon the occurrence of an Event of Default BWFwill enfoice its rights against the Guarantor(s) of this transaction. Said Guaranto11st will be jointly and severally liable to BWFfor all of BWFslosses and Guarantor(s) will be jointly and severally liable to BWFfor all of BWFslosses and damages, in additional to all costs and expenses and legal fees ussociated with such enforcement. For the uvoidance of doubt the Guarantor shall not be liable in the event that the Merchant is not liable under fliis Agreement. 33 Remedies Upon the occurrence of an Event of Default that is not waived pursuant to Section 4A hereof. BWFmay proceed to protect and enforce its rights or remedies by suit in equity or by action at law, or both,