Preview
FILED: NASSAU COUNTY CLERK 07/03/2024 09:31 AM INDEX NO. 611639/2024
DocuSign Envelope ID: 601EA142-EE44-4DF0-913D-F497EOB8D4BA
NYSCEF986UR000007F3cfYAC
DOC. NO. 2 RECEIVED NYSCEF: 07/03/2024
SUDDort VOXfunding.©DHR
VOXFUNDINC 1-800-614-8799
FUTURE
RECEIFISSALEAGREEMENT
024
This FUTURERECEIPTSSALEAGREEMENT
("Agreement") dated , is madeby and between Vox Funding LLC, a
Delaware limitedliability companywith an address at 100 Park Avenue, 26th Floor, NewYork, 10017 NY ("Purchaser"),
Merchant (Merchant Information below), and the Guarantor(syOwner(s), as identified in the Owner/Guarantor Information below.
The terms in the table below shall constitute defined terms with respect to this Agreement.
Merchant Information
Legal Name:Smarty Pants Academy LLC DBA: Smarty Pants Academy LLC
Entity Type: LLC FEIN:
State of Incorporation: Alabama BankName: Synovus Bank
Address: 1868 SparkmanDrive Northwest, Huntsville, AL, 35816 Phone: 256-682-9778
Registered Agent Name: Registered Agent Address:
Owner/Guarantor Information (referred to individually or collectively as the "Guarantor")
Owner 1/Guarantor 1
Full Name: TamekaShanell Mitchell Cell Phone: 256-682-9778 Social Security #:
HomeAddress: 2807 Talon Circle City/State: Huntsville, AL Zip Code: 35811
Ownership %: 100.00% Email: smartypants11c256@gmail.com DOB:
Owner 2/Guarantor 2
Full Name: Cell Phone: Social Security #:
HomeAddress: City/State: Zip Code:
Ownership %: Email: DOB:
Owner 3/Guarantor 3
Full Name: Cell Phone: Social Security #:
HomeAddress: City/State: Zip Code:
Ownership %: Email: DOB:
Purchase Detail
Amount Sold $ 41,400.00 The dollar value of the Future Receipts
Future Receipt Discount $ 11,400.00 The difference in value between the Purchase Price and the Amount Sold
Specified Percentage 11.000% Percentage of Futum Receipts to be remitted to Purchaser
Estimated Average Monthly Receipts $ 50,000.00 Future Receipts Expected Per Month based on analysis of Merchant's business.
Purchase Price $ 30,000.00 The dollar amount Pumhaser is paying for the Amount Sold
Origination Fee $ 1,200.00 The dollar amount to be deducted from Purchase Price
Direct Payment to Vox Funding $ 0.0 Amount paid on existing Vox Funding agreements and fees
Direct Payments to Third Parties $ 0.0 Amount paid on third party agreements
Wire Transaction Fee $ 50.00 The cost to wim funds to Merchant and/or third parties
Disbursement Amount to Merchant $ 28,750.00 Net of fees, discount, and direct payments
Remittance can occur via ACH, Bank Transfer, Bank Wim, Payment Card, or
Remittance Choice ACH
Lockbox
Remittance Frequency Weekly
holidays)]or [Weekly]
Expected term of this Agreement based on the Specified Percentage (this is only an
Expected Remittance Term 32
estimate)
Estimated Remittance Amount $ 1,293.75
Remittance Frequency
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Bank Account. Merchant shall deposit all of Merchant’s Future Receipts into the following bank account during the course of this Agreement (the “Bank
Account”), which Bank Account may only be changed by prior written authorization of the Purchaser:
Financial Institution Name: Synovus Bank
Account Number: 1011535257
Routing Number: 061100606
Merchant will be in breach of this Agreement if Merchant fails to perform in accordance with the Terms and Conditions stated hereinafter, including,
without limitation, any of the following:
• Change or close the Bank Account
• Change (or add) Payment Card processors
• Block Purchaser’s ACH access to the Bank Account
• Sell Merchant’s business prior to full remittance of Amount Sold of Future Receipts above without prior written consent from Purchaser
• Fail to provide Purchaser copies of and/or electronic access to reasonable documentation of Merchant’s card processing activity or financial,
banking, or tax affairs within five (5) calendar days of a request by Purchaser
• Sell Merchant’s Future Receipts to another person or entity
DISCOUNTS, FEES, AND DAMAGES. The following terms are additional costs, fees, or damages that may be incurred in connection with this
Agreement upon certain circumstances, as set forth below:
a. Origination Fee. Merchant agrees to pay Purchaser the Origination Fee listed on the first page of this Agreement. Purchaser will deduct the
amount of the Origination Fee from the Purchase Price that is to be paid to Merchant.
b. Wire Transaction Fee. Merchant may request to receive payment of the Purchase Price to Merchant or to third parties by wire transfer.
Purchaser shall have sole discretion in determining whether it will pay the Purchase Price by wire transfer. In the event Purchaser pays the
Purchase Price by wire transfer, Merchant agrees to pay Purchaser a fee of $50.00 for each wire transfer, which covers the banking costs for
paying the Purchase Price by wire transfer. Purchaser will deduct the amount of the Wire Transaction Fee from the Purchase Price that is to be
paid to Merchant.
c. Returned Item Fee. To the extent not prohibited by applicable law, Merchant agrees to pay Purchaser a returned item fee of $50.00 (a
“Returned Item Fee”) if an electronic debit is returned unpaid or cannot be processed or a check, draft or similar instrument issued by Merchant
or any individual that signs this Agreement is not honored or cannot be processed (either of which is a “Returned Item Event”). Merchant and
any individual that signs this Agreement authorize Purchaser to resubmit returned payments in its discretion. At Purchaser’s option, Purchaser
will assess this fee any time a payment is not honored or paid, even if it is later honored or paid following resubmission. Any check, draft or
similar instrument may be collected electronically if returned for insufficient or uncollected funds. If Merchant is not generating sufficient
receipts to satisfy the Remittance Amount, Merchant has the obligation to request an adjustment to the Remittance Amount rather than incurring
repeated Returned Item Fees.
d. UCC Filing and Release Fee. Merchant agrees to pay Purchaser $150.00, or a lesser amount if required by law, upon request from Purchaser
for fees associated with filing and releasing any UCC financing statement in accordance with this Agreement.
e. Breach Administration Fee. If Merchant violates any term or covenant in this Agreement, and such breach is not cured within five (5)
calendar days of its first occurrence, Merchant agrees to pay Purchaser the following:
i For a transaction with an original Purchase Price of $10,000 or less, a fee of the greater of $2,500 or 10% of the undelivered Amount Sold
at the time of the breach; or
ii For a transaction with an original Purchase Price greater than $10,000, a fee of the greater of $5,000 or 10% of the undelivered Amount
Sold at the time of the breach.
The Breach Administration Fee is intended to compensate Purchaser for the additional administrative costs associated with Merchant’s failure
to comply with the terms of the Agreement. This amount will be added to the total amount to be remitted by the Merchant, effectively
providing an additional discount to the Purchaser. The parties agree that this fee is a good faith estimate of the damages caused by a breach of
the Agreement in addition to Purchaser’s other remedies specified in this Agreement, including the increased resources required to be expended
by Purchaser to respond to the breach, as well as other damages and expenses caused by the breach.
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f. Blocked Account Fee. If Merchant puts a block on the Bank Account or takes any intentional action that would prevent Purchaser from
debiting the Bank Account as permitted by the Agreement, which action will constitute a breach of this Agreement, Merchant agrees to pay
Purchaser an additional $1,000 Blocked Account Fee. The parties agree that the blocked account fee is a good faith estimate of the damages
caused by such a breach of this Agreement, including the increased resources required to be expended by Purchaser to respond to the breach,
the increased cost of funds to Purchaser caused by the failure to receive expected funds, the risk to Purchaser’s ability to request ACH payments
through the NACHA system caused by initiating rejected ACHs, and other damages and expenses caused by the breach.
g. Stacking Fee. If subsequent to entering this Agreement, Merchant sells any Future Receipts to, or obtains a loan secured by any Future
Receipts from any other person or entity (“Stacking”) without Purchaser’s prior written consent before Purchaser collects the entire Amount
Sold, and Merchant is otherwise in breach of this Agreement, then Merchant agrees to pay Purchaser an additional $1,000 Stacking Fee. The
parties agree that the Stacking Fee is a good faith estimate of the damages caused by this breach of the Agreement including the increased
resources required to be expended by Purchaser to respond to the breach, the increased risk to Purchaser caused by the Stacking, including the
potential for having to respond to competing creditors and other damages and expenses caused by the breach.
TERMS AND CONDITIONS IN ADDITION TO THE ABOVE TERMS:
1. Nonrecourse Sale of Future Receipts (THIS IS NOT A LOAN). In consideration of the payment of the Purchase Price specified above,
Merchant hereby sells, assigns, and transfers to Purchaser, without recourse, the Amount Sold and will deliver the Specified Percentage of the
proceeds of each sale made by Merchant (collectively “Future Receipts”) in accordance with this Agreement. “Future Receipts” means all
payments received by Merchant, or its right to receive such payments, including but not limited to (a) payments made by cash, check,
Automated Clearinghouse (“ACH”) or other electronic transfer, (b) payments, or rights to payments, made by credit card, debit card, bank card,
charge card (each such card shall be referred to herein as a “Payment Card”) or (c) payments made by any other form. The term “Future
Receipts” includes Merchant’s accounts and payment intangibles. Merchant agrees that this Agreement applies to Merchant’s entire right, title
and interest in the Future Receipts up to the Amount Sold. The terms and conditions of this Agreement shall remain in full force and effect until
the Amount Sold has been delivered to Purchaser subject to the terms of this Agreement. Merchant and Purchaser agree that this sale and
purchase is final and Merchant has no right to repurchase or resell the Future Receipts or any portion thereof. Merchant, any individual signing
this Agreement as a Guarantor and Purchaser (each individually referred to herein as “Party” and collectively referred to herein as “Parties”)
agree that the Purchase Price paid to Merchant is the price paid to purchase Merchant’s Future Receipts and that the transaction contemplated
by this Agreement is a purchase and sale of the Future Receipts. The Parties hereby agree that the transaction contemplated by this Agreement
is not a loan, a forbearance of money lent or any similar loan or lending transaction. Merchant understands, agrees and represents that this
transaction is made for business or commercial purposes with respect to the underlying Merchant only, and may not be used for any other
business or for personal use. Merchant agrees that it will treat the Purchase Price and Amount Sold in a manner consistent with a sale in its
accounting records and tax returns. Merchant agrees that Purchaser is entitled to audit Merchant’s accounting records upon reasonable notice in
order to verify compliance. Merchant waives any rights of privacy, confidentiality or taxpayer privilege in any litigation or arbitration in which
Merchant asserts that this transaction is anything other than a sale of Future Receipts.
2. Changes to the Estimated Remittance Amount (IMPORTANT PROTECTION FOR MERCHANT).
a. Requesting a Reconciliation Review. The Estimated Remittance Amount is intended to represent the Specified Percentage of
Merchant’s daily or weekly Future Receipts. Either Purchaser or Merchant may give written notice to the other party requesting a
reconciliation to determine whether Purchaser received an amount greater or less than the Purchased Percentage of Merchant’s
Future Receipts. Any written request made by Merchant to Purchaser under this Section shall be sent to VOX Funding, 100 Park
Ave, 26th Floor, New York, NY 10017 or at reconciliations@voxfunding.com, and Purchaser may update this contact request by
written notification to Merchant as needed.
b. Reconciliation Request Processing. Each reconciliation review period is limited to Merchant’s Future Receipts for the calendar
month immediately preceding the request. Notice of the reconciliation request must be given by the last calendar day of the month
following the calendar month for which the request is being made. Merchant shall either provide Purchaser with online access to its
Bank Account or, at Purchaser’s request, provide bank statements showing the activity related to the Bank Account within five (5)
calendar days after any request. Merchant also hereby authorizes Purchaser to obtain any bank statement directly from the
Merchant’s Bank. If the bank information indicates transfers to or from the Bank Account that Purchaser deems reasonably material,
then Purchaser may request and Merchant must promptly provide statements from the relevant bank account or reasonable
documentation of the nature of the transfer.
c. Adjusting the Estimated Remittance Amount. Upon reasonable verification of Merchant’s actual Future Receipts for the month
under review, Purchaser shall adjust the Estimated Remittance Amount on a going-forward basis to more closely reflect the
Merchant’s actual Future Receipts times the Specified Percentage. If the Estimated Remittance Amount will increase, Purchaser
will give Merchant notice five (5) calendar days prior to any such adjustment. After each adjustment made pursuant to this Section,
the new dollar amount shall be deemed the Estimated Remittance Amount until any subsequent adjustment.
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3. Method of Remittance. Merchant hereby agrees to deliver the Amount Sold to Purchaser as (i) the Estimated Remittance Amount (based on
the Specified Percentage) of Future Receipts by Purchaser periodically debiting the Estimated Remittance Amount from Merchant’s Bank
Account via ACH transaction (a “Direct Debit”); (ii) as the Specified Percentage of each day’s Payment Card Receipts directly from
Merchant’s card processor (a “Payment Card Split”); or (iii) the Estimated Remittance Amount (based on the Specified Percentage) of Future
Receipts directly through a Lockbox arrangement (a “Lockbox”). Purchaser may, in its sole discretion select the method by which it will
accept remittance of the Amount Sold and, upon written notice to Merchant, change the method by which it will accept remittance of
the Amount Sold, and provide Merchant with updated remittance instructions. The following details each remittance type:
a. Direct Debit. If Purchaser chooses to receive the remittance of the Amount Sold via a periodic Direct Debit of the Estimated Remittance
Amount (based on the Specified Percentage) then Merchant agrees as follows:
i. Bank Account. Merchant acknowledges and agrees that Merchant shall deposit all of Merchant’s Future Receipts into the Bank
Account, except as otherwise agreed in writing by Purchaser.
ii. Automated Clearinghouse for Estimated Remittance Amount. Merchant hereby authorizes Purchaser and its agents to initiate
Automated Clearinghouse (“ACH”) payments equal to the Estimated Remittance Amount until Purchaser has received Future
Receipts equal to the Amount Sold.
iii. Merchant to Maintain the Bank Account. Merchant will be held responsible for any fees incurred by Purchaser resulting from a
rejected ACH attempt or a breach of this Agreement.
iv. Overdraft or Rejected Transactions the Responsibility of Merchant. Purchaser is not responsible for any overdrafts.
v. ACH authorization. The Merchant shall provide all necessary ACH authorizations to Purchaser in the form set forth in Appendix
A to this Agreement, and as requested by Purchaser from time to time as necessary.
b. Payment Card Split. If Purchaser chooses to accept the remittance of the Specified Percentage of the Amount Sold through a Payment
Card Split, Merchant will enter into an agreement with a card processor (“Processor”) acceptable to Purchaser, and authorize Processor to
pay the Specified Percentage directly to Purchaser until Purchaser receives the total Amount Sold. Merchant acknowledges that
Processor will be acting on behalf of Purchaser to collect the Specified Percentage. Merchant irrevocably grants Processor the right to
hold the Specified Percentage and to pay Purchaser directly (at, before or after the time Processor credits or remits to Merchant the
balance of the receipts not sold by Merchant to Purchaser) until Purchaser receives the entire Amount Sold. Processor may provide
Purchaser with all information Purchaser deems pertinent. Merchant agrees to hold Purchaser harmless for the Processor’s actions or
omissions.
c. Lockbox. If Purchaser chooses to accept the remittance through a Lockbox, Purchaser is authorized by Merchant to receive remittance
from the Lockbox. Merchant agrees to deposit all Future Receipts into the Lockbox and shall instruct Merchant’s Processor to deposit all
receipts directly into the Lockbox. This Authorization shall continue until Purchaser has received an amount equal to the Amount Sold.
4. Changing the Remittance Frequency to Daily. If the Remittance Frequency is longer than daily, either Purchaser or Merchant may request
that the Remittance Frequency be changed to daily. The Party requesting a change must notify the other Party in accordance with Section 21
(Notices). The effective date of the change shall take effect immediately upon such notice being sent to the other Party (the “Change Effective
Date”). On the Change Effective Date the Remittance Amount shall be adjusted to reflect the change to daily remittances.
5. Purchase of Future Receipts from Affiliated Merchants. If there is more than one Merchant identified in this Agreement, then the term
“Merchant” includes all identified Merchants and the Amount Sold means the aggregate amount of Future Receipts sold to Purchaser from such
Merchants (“Aggregate Future Receipts”). The Specified Percentage will be calculated using the Aggregate Future Receipts, without regard to
the actual Future Receipts of any individual Merchant. Purchaser is authorized to obtain the full amount of Aggregate Future Receipts from any
other bank account owned or controlled by any Merchant.
6. Timing, Payment of Purchase Price, Processing Trial. Purchaser shall pay the Purchase Price or any portion thereof to Merchant only at a
time, and through a method, acceptable to Purchaser and at Purchaser’s sole discretion. Purchaser, in its sole discretion, may refuse to pay the
Purchase Price or any portion thereof to Merchant and cancel this Agreement at any time prior to the Purchase Price being paid. Prior to paying
the Purchase Price, to the extent that Purchaser chooses to receive its Amount Sold pursuant to a Payment Card Split, as described above,
Purchaser may conduct a site inspection and shall conduct a processing trial (the “Processing Trial”) to determine whether the Specified
Percentage will be correctly processed and/or reported by Merchant’s card processor or bank to Purchaser. In the event Purchaser elects to
conduct a Processing Trial, Merchant acknowledges and agrees that Purchaser will make its final decision, in its sole and absolute discretion,
whether to purchase the Future Receipts after completion of the Processing Trial. If Purchaser conducts a Processing Trial and determines not to
purchase the Future Receipts, any receipts remitted to Purchaser during the Processing Trial shall be returned to Merchant.
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7. Application of Amounts Received by Purchaser. Purchaser reserves the right to apply amounts received by it under this Agreement to any
fees or other charges due to Purchaser from Merchant prior to applying such amounts to reduce the amount of any outstanding Amount Sold.
8. Waiver. There shall be affected no waiver by failure on the part of Purchaser to exercise, or delay in exercising, any right under this
Agreement, nor shall any single or partial exercise by Purchaser of any right under this Agreement preclude any other future exercise of any
right. Subject to arbitration as provided in Section 27 of this Agreement, the remedies provided hereunder are cumulative and not exclusive of
any remedies provided by law or equity.
9. Acknowledgment of Security Interest and Security Agreement. The Future Receipts sold by Merchant to Purchaser pursuant to this
Agreement are “accounts” or “payment intangibles” as those terms are defined in the Uniform Commercial Code of the State of New York(the
“UCC”) and such sale shall constitute and shall be construed and treated for all purposes as a true and complete sale, conveying good title to the
Future Receipts, from Merchant to Purchaser. To the extent the Future Receipts are “accounts” or “payment intangibles” then (i) the sale of the
Future Receipts creates a security interest as defined in the UCC; (ii) this Agreement constitutes a “security agreement” under the UCC; and
(iii) Purchaser has all the rights of a secured party under the UCC with respect to such Future Receipts. Merchant further agrees that, with or
without a breach of this Agreement, Purchaser may notify account debtors, or other persons obligated on the Future Receipts or holding the
Future Receipts of Merchant’s sale of same and may instruct them to make payment or otherwise render performance to or for the benefit of
Purchaser. Merchant hereby grants Purchaser a security interest in, and authorizes Purchaser to file a UCC financing statement covering, all of
Merchant’s present and future accounts, chattel paper, deposit accounts, documents, personal property, assets and fixtures, general intangibles,
instruments, equipment, inventory wherever located, and proceeds now or hereafter owned or acquired by Merchant.
10. Authorization to File Notice of Sale and Security Interest. Merchant hereby authorizes Purchaser to file one or more financing statements
pursuant to the UCC to evidence and perfect Purchaser’s security interest and any continuation statements or amendments thereto. The UCC
financing statement may state that the sale of the Future Receipts is intended to be a sale and not an assignment for security and that the
Merchant is prohibited from obtaining any financing that impairs the value of the Future Receipts or Purchaser’s right to collect same. Merchant
authorizes Processor to remit to Purchaser all costs incurred by Purchaser associated with the filing, amendment or termination of any UCC
filings.
11. Broker Fees, Damages, and Purchaser’s Risk. PURCHASER DOES NOT CHARGE ANY BROKER FEES. If Merchant is charged such a
fee, it is not being charged by Purchaser or an agent of Purchaser. Additionally, because this is not a loan, Purchaser does not charge any
interest, finance charges, points, late fees or similar fees (except as permitted by applicable law in connection with civil judgments). Purchaser
is purchasing the Future Receipts at a discount. Because the transaction evidenced by this Agreement is not a loan, there are no specific
scheduled payments and no repayment term. Purchaser assumes the risk that Future Receipts may be remitted more slowly than Purchaser may
have anticipated or projected because Merchant’s business has slowed down, and the risk that the full Amount Sold may never be remitted
because Merchant’s business went bankrupt, or Merchant otherwise ceased operations in the ordinary course of business. Purchaser is buying
the Amount Sold knowing the risks that Merchant’s business may slow down or fail, and Purchaser assumes these risks based on Merchant’s
representations, warranties and covenants in this Agreement that are designed to give Purchaser a reasonable and fair opportunity to receive the
benefit of its bargain.
12. Right to Cancel. Merchant may cancel this transaction at any time prior to midnight of the fifth day after Purchaser forwards the Disbursement
Amount to Merchant. In order to cancel the transaction, Merchant must provide notice to Purchaser and return the full Disbursement Amount to
Purchaser within five (5) calendar days of receipt of the Disbursement Amount. Purchaser shall retain the Processing Fee, but Merchant shall
not be responsible for any other costs if this Agreement is cancelled pursuant to this Section.
13. Right of Access. In order to ensure that Merchant is complying with the terms of this Agreement, Purchaser shall have the right to (i) enter
during reasonable business hours, without notice, the premises of Merchant’s business for the purpose of inspecting and checking Merchant’s
transaction processing terminals to ensure the terminals are properly programmed to submit and or batch Merchant’s daily receipts to the
Processor and to ensure that Merchant has not violated any other provision of this Agreement, and (ii) Merchant shall provide reasonable access
to its employees and records and all other items reasonably requested by Purchaser.
14. Merchant’s Representations, Warranties and Covenants. Merchant represents, warrants and covenants that as of the date of this Agreement
and unless expressly stated otherwise during the course of this Agreement:
(i) Merchant has reviewed the Estimated Average Monthly Receipts shown on Page 1 of this Agreement and agrees that this estimate is
made by Merchant in good faith and accurately represents Merchant’s revenue;
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(ii) the Future Receipts are not subject to any claims, charges, liens, restrictions, encumbrances or security interests of any nature
whatsoever unless otherwise disclosed to Purchaser in writing prior to payment of the Disbursement Amount to Merchant;
(iii) Merchant will not sell the Future Receipts to another person or entity;
(iv) Merchant will not take any action with the intent to interfere with Purchaser’s right to collect the purchased Future Receipts;
(v) Merchant will not conduct business under any name other than as disclosed herein, shall not change its business name, location or EIN
without the prior written consent of Purchaser;
(vi) except as disclosed to Purchaser in writing prior to payment of the Disbursement Amount to Merchant, Merchant has no current plans
to close its business either temporarily, whether for renovations, repairs or any other purpose, or permanently. Merchant will not
voluntarily close its business on a temporary basis for renovations, repairs, or any other voluntary purposes. This provision, however,
does not prohibit Merchant from closing its business temporarily if such closing is required to conduct renovations or repairs that are
required by local ordinance or other legal order, such as from a health or fire inspector, or if otherwise forced to do so by circumstances
outside of the control of Merchant. Prior to any such closure, Merchant will provide Purchaser ten (10) calendar days’ notice to the
extent practicable;
(vii) Merchant will not voluntarily sell, dispose, transfer or otherwise convey all or substantially all of its business or assets or control of its
business, or open, whether directly or indirectly, a competing business, without the express prior written consent of Purchaser, and the
written agreement of any purchaser or transferee assuming all of Merchant’s obligations under this Agreement pursuant to
documentation reasonably satisfactory to Purchaser;
(viii) Merchant will not change or add Payment Card processors or change the Bank Account without the prior written approval of
Purchaser;
(ix) Merchant will not take any action to intentionally discourage the use of Payment Cards;
(x) Merchant will not undertake any transaction involving the sale of Merchant, either by an issuance, sale or transfer of ownership
interests in Merchant that results in a change in ownership or voting control of Merchant, or by a sale or transfer of substantially all of
the assets of Merchant;
(xi) Merchant will not voluntarily permit another person or company, including without limitation a franchisor company (if Merchant is
franchisee), to assume or take over the operation and/or control of the Merchant’s business or business locations;
(xii) as of the date of this Agreement Merchant is not currently contemplating the filing of a bankruptcy proceeding or closing Merchant’s
business and as of the date of this Agreement Merchant has not retained any attorney, other consultant or professional to provide any
advice, assistance or planning with respect to the filing of a bankruptcy;
(xiii) all information provided by Merchant to Purchaser in this Agreement, application, interview with Purchaser or otherwise, and all of
Merchant’s financial statements and other financial documents provided to Purchaser are true and correct and accurately reflect
Merchant’s financial condition and results of operations as of the dates provided;
(xiv) Merchant will be truthful in all future statements to Purchaser and will provide Purchaser with accurate and complete information
regarding Merchant’s business as reasonably required by this Agreement;
(xv) Merchant has all permits, licenses, approvals, consents and authorizations necessary to conduct its business and will promptly pay all
necessary taxes, including but not limited to employment and sales and use taxes;
(xvi) Merchant and the person(s) signing this Agreement on behalf of Merchant have full power and authority to enter into and perform the
obligations under this Agreement;
(xvii) Merchant will provide Purchaser copies of and/or electronic access to all reasonable documentation related to Merchant’s card
processing activity or financial, banking, or tax affairs within five (5) calendar days of a request by Purchaser. The parties agree that
reasonable documentation includes but is not limited to cash flow projections, detailed accounts receivable aging reports, financial
statements, bank statements and other reasonable form of documentation in accordance with this Agreement;
(xviii) Merchant will not take any action to cause the Future Receipts to be settled or delivered to any bank account other than the business
Bank Account and in accordance with the terms of this Agreement;
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(xix) Merchant will not enter into any financing agreement resulting in Stacking and Purchaser may share information regarding this
Agreement with any third party in order to determine whether Merchant is in compliance with this provision;
(xx) Merchant’s execution and performance of this Agreement will not violate any court order, administrative order or decree, law or
regulation to which Merchant is subject, including any agreement that prohibits the sale or pledge of Merchant’s Future Receipts;
(xxi) Merchant will conduct its business consistent with past practice and shall not take any action that would have an adverse effect on the
use, acceptance, or authorization of any Payment Card for the purchase of Merchant’s products or services;
(xxii) Merchant will not voluntarily block Purchaser from receiving/requesting ACH remittances from Merchant’s Bank Account;
(xxiii) Merchant is a sophisticated business entity familiar with the type of transaction described under this Agreement, and has had a full
opportunity to consult with counsel of their choice, and has consulted with counsel or has decided not to avail themselves of that
opportunity;
and
(xxiv) as of the date of this Agreement Merchant has disclosed any condition that has resulted in or would result in a material adverse change
to Merchant’s business and currently knows of no condition that is likely to result in a material adverse change to its business.
15. Remedies for Merchant’s Breach of this Agreement. If Merchant violates or fails to comply with any term, obligation, warranty,
representation or covenant in this Agreement, Purchaser may proceed to protect and enforce its rights under this Agreement, including, but not
limited to, the following remedies:
a. The Specified Percentage shall equal 100% of all Future Receipts.
b. The full undelivered Amount Sold plus all fees and charges assessed under this Agreement will become due and payable in full
immediately. Purchaser may electronically debit from any of Merchant’s bank accounts via ACH or otherwise, and/or may instruct
Merchant’s processor(s) and/or account debtors to forward to Purchaser all or any portion of the sums due to Purchaser.
c. Purchaser shall be entitled to recover from Merchant and Guarantors all costs of collection, including reasonable attorney’s fees
and third-party collection costs.
d. Subject to arbitration as provided in Section 27, all rights, powers, and remedies of Purchaser are cumulative and not exclusive, and
shall be in addition to any other rights, powers or remedies provided by law or equity.
16. Telephone Monitoring, Recording and Contacts. Merchant agrees that any call between Purchaser and Merchant, and their agents and
employees may be recorded or monitored. These calls are monitored and/or recorded solely for evaluation by supervisors, training, monitoring
for compliance purposes, collections, and quality control. By signing this Agreement, Merchant agrees that any call between Purchaser and
Merchant or a representative of Merchant may be monitored and/or recorded for these purposes, unless prohibited by law. Merchant further
agrees that: (i) it has an established business relationship with Purchaser and may be contacted from time to time regarding transactions with
Purchaser by telephone, text message or email; (ii) such contacts are not considered unsolicited or inconvenient; and (iii) any such contact may
be made using any wireless, mobile cellular or other number Merchant or its representative gave Purchaser, using any e-mail address Merchant
or its representative gave Purchaser, or using an automated dialing and announcing or similar device, unless prohibited by law. This
authorization is binding upon Merchant upon signing this Agreement and shall not be deemed withdrawn or revoked should Purchaser
determine not to purchase the Future Receipts from Merchant. Merchant authorizes Purchaser, its affiliates, agents and independent contractors
to contact Merchant at any telephone number Merchant provides to Purchaser or from which Merchant places a call to Purchaser, or any
telephone number where Purchaser believes it may reach Merchant, using any means of communication, including but not limited to calls or
text messages to mobile, cellular, wireless or similar devices or calls or text messages using an automated telephone dialing system and/or
artificial voices or prerecorded messages, even if Merchant incurs charges for receiving such communications. Merchant also agrees that
Purchaser, its affiliates, agents and independent contractors, may use any other medium not prohibited by law including, but not limited to,
mail, e-mail and facsimile, to contact Merchant. Merchant expressly consents to conduct business by electronic means.
17. Publicity. Merchant hereby authorizes Purchaser to use its name in listings of clients and in advertising and marketing materials.
18. Reporting and Other Authorizations. By signing this Agreement, Merchant and any individual Guarantor signing below authorizes
Purchaser, its agents and representatives, and any credit reporting agency engaged by Purchaser (i) to investigate any references given or any
Vox Funding LLC - Vox Agreement 2.0 Merchant Initials: ___________________________ Page | 7
FILED: NASSAU COUNTY CLERK 07/03/2024 09:31 AM INDEX NO. 611639/2024
DocuSign Envelope ID: 601EA142-EE44-4DF0-913D-F497E0B8D4BA
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/03/2024
other statements or data obtained from or about Merchant and any of its Guarantors for the purpose of this Agreement, (ii) to obtain a
consumer or business credit report or any background report on the Merchant and any individual that signs this Agreement deemed necessary
by Purchaser for purposes of deciding whether to approve the purchase of the Amount Sold or for any update, renewal, or for e
Preview
FILED: NASSAU COUNTY CLERK 07/03/2024 09:31 AM INDEX NO. 611639/2024 DocuSign Envelope ID: 601EA142-EE44-4DF0-913D-F497EOB8D4BA NYSCEF986UR000007F3cfYAC DOC. NO. 2 RECEIVED NYSCEF: 07/03/2024 SUDDort VOXfunding.©DHR VOXFUNDINC 1-800-614-8799 FUTURE RECEIFISSALEAGREEMENT 024 This FUTURERECEIPTSSALEAGREEMENT ("Agreement") dated , is madeby and between Vox Funding LLC, a Delaware limitedliability companywith an address at 100 Park Avenue, 26th Floor, NewYork, 10017 NY ("Purchaser"), Merchant (Merchant Information below), and the Guarantor(syOwner(s), as identified in the Owner/Guarantor Information below. The terms in the table below shall constitute defined terms with respect to this Agreement. Merchant Information Legal Name:Smarty Pants Academy LLC DBA: Smarty Pants Academy LLC Entity Type: LLC FEIN: State of Incorporation: Alabama BankName: Synovus Bank Address: 1868 SparkmanDrive Northwest, Huntsville, AL, 35816 Phone: 256-682-9778 Registered Agent Name: Registered Agent Address: Owner/Guarantor Information (referred to individually or collectively as the "Guarantor") Owner 1/Guarantor 1 Full Name: TamekaShanell Mitchell Cell Phone: 256-682-9778 Social Security #: HomeAddress: 2807 Talon Circle City/State: Huntsville, AL Zip Code: 35811 Ownership %: 100.00% Email: smartypants11c256@gmail.com DOB: Owner 2/Guarantor 2 Full Name: Cell Phone: Social Security #: HomeAddress: City/State: Zip Code: Ownership %: Email: DOB: Owner 3/Guarantor 3 Full Name: Cell Phone: Social Security #: HomeAddress: City/State: Zip Code: Ownership %: Email: DOB: Purchase Detail Amount Sold $ 41,400.00 The dollar value of the Future Receipts Future Receipt Discount $ 11,400.00 The difference in value between the Purchase Price and the Amount Sold Specified Percentage 11.000% Percentage of Futum Receipts to be remitted to Purchaser Estimated Average Monthly Receipts $ 50,000.00 Future Receipts Expected Per Month based on analysis of Merchant's business. Purchase Price $ 30,000.00 The dollar amount Pumhaser is paying for the Amount Sold Origination Fee $ 1,200.00 The dollar amount to be deducted from Purchase Price Direct Payment to Vox Funding $ 0.0 Amount paid on existing Vox Funding agreements and fees Direct Payments to Third Parties $ 0.0 Amount paid on third party agreements Wire Transaction Fee $ 50.00 The cost to wim funds to Merchant and/or third parties Disbursement Amount to Merchant $ 28,750.00 Net of fees, discount, and direct payments Remittance can occur via ACH, Bank Transfer, Bank Wim, Payment Card, or Remittance Choice ACH Lockbox Remittance Frequency Weekly holidays)]or [Weekly] Expected term of this Agreement based on the Specified Percentage (this is only an Expected Remittance Term 32 estimate) Estimated Remittance Amount $ 1,293.75 Remittance Frequency as Vox Funding LLC - Vox Agreement 2.0 Merchant Initials: Page | 1 FILED: NASSAU COUNTY CLERK 07/03/2024 09:31 AM INDEX NO. 611639/2024 DocuSign Envelope ID: 601EA142-EE44-4DF0-913D-F497E0B8D4BA NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/03/2024 Bank Account. Merchant shall deposit all of Merchant’s Future Receipts into the following bank account during the course of this Agreement (the “Bank Account”), which Bank Account may only be changed by prior written authorization of the Purchaser: Financial Institution Name: Synovus Bank Account Number: 1011535257 Routing Number: 061100606 Merchant will be in breach of this Agreement if Merchant fails to perform in accordance with the Terms and Conditions stated hereinafter, including, without limitation, any of the following: • Change or close the Bank Account • Change (or add) Payment Card processors • Block Purchaser’s ACH access to the Bank Account • Sell Merchant’s business prior to full remittance of Amount Sold of Future Receipts above without prior written consent from Purchaser • Fail to provide Purchaser copies of and/or electronic access to reasonable documentation of Merchant’s card processing activity or financial, banking, or tax affairs within five (5) calendar days of a request by Purchaser • Sell Merchant’s Future Receipts to another person or entity DISCOUNTS, FEES, AND DAMAGES. The following terms are additional costs, fees, or damages that may be incurred in connection with this Agreement upon certain circumstances, as set forth below: a. Origination Fee. Merchant agrees to pay Purchaser the Origination Fee listed on the first page of this Agreement. Purchaser will deduct the amount of the Origination Fee from the Purchase Price that is to be paid to Merchant. b. Wire Transaction Fee. Merchant may request to receive payment of the Purchase Price to Merchant or to third parties by wire transfer. Purchaser shall have sole discretion in determining whether it will pay the Purchase Price by wire transfer. In the event Purchaser pays the Purchase Price by wire transfer, Merchant agrees to pay Purchaser a fee of $50.00 for each wire transfer, which covers the banking costs for paying the Purchase Price by wire transfer. Purchaser will deduct the amount of the Wire Transaction Fee from the Purchase Price that is to be paid to Merchant. c. Returned Item Fee. To the extent not prohibited by applicable law, Merchant agrees to pay Purchaser a returned item fee of $50.00 (a “Returned Item Fee”) if an electronic debit is returned unpaid or cannot be processed or a check, draft or similar instrument issued by Merchant or any individual that signs this Agreement is not honored or cannot be processed (either of which is a “Returned Item Event”). Merchant and any individual that signs this Agreement authorize Purchaser to resubmit returned payments in its discretion. At Purchaser’s option, Purchaser will assess this fee any time a payment is not honored or paid, even if it is later honored or paid following resubmission. Any check, draft or similar instrument may be collected electronically if returned for insufficient or uncollected funds. If Merchant is not generating sufficient receipts to satisfy the Remittance Amount, Merchant has the obligation to request an adjustment to the Remittance Amount rather than incurring repeated Returned Item Fees. d. UCC Filing and Release Fee. Merchant agrees to pay Purchaser $150.00, or a lesser amount if required by law, upon request from Purchaser for fees associated with filing and releasing any UCC financing statement in accordance with this Agreement. e. Breach Administration Fee. If Merchant violates any term or covenant in this Agreement, and such breach is not cured within five (5) calendar days of its first occurrence, Merchant agrees to pay Purchaser the following: i For a transaction with an original Purchase Price of $10,000 or less, a fee of the greater of $2,500 or 10% of the undelivered Amount Sold at the time of the breach; or ii For a transaction with an original Purchase Price greater than $10,000, a fee of the greater of $5,000 or 10% of the undelivered Amount Sold at the time of the breach. The Breach Administration Fee is intended to compensate Purchaser for the additional administrative costs associated with Merchant’s failure to comply with the terms of the Agreement. This amount will be added to the total amount to be remitted by the Merchant, effectively providing an additional discount to the Purchaser. The parties agree that this fee is a good faith estimate of the damages caused by a breach of the Agreement in addition to Purchaser’s other remedies specified in this Agreement, including the increased resources required to be expended by Purchaser to respond to the breach, as well as other damages and expenses caused by the breach. as Vox Funding LLC - Vox Agreement 2.0 Merchant Initials: ___________________________ Page | 2 FILED: NASSAU COUNTY CLERK 07/03/2024 09:31 AM INDEX NO. 611639/2024 DocuSign Envelope ID: 601EA142-EE44-4DF0-913D-F497E0B8D4BA NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/03/2024 f. Blocked Account Fee. If Merchant puts a block on the Bank Account or takes any intentional action that would prevent Purchaser from debiting the Bank Account as permitted by the Agreement, which action will constitute a breach of this Agreement, Merchant agrees to pay Purchaser an additional $1,000 Blocked Account Fee. The parties agree that the blocked account fee is a good faith estimate of the damages caused by such a breach of this Agreement, including the increased resources required to be expended by Purchaser to respond to the breach, the increased cost of funds to Purchaser caused by the failure to receive expected funds, the risk to Purchaser’s ability to request ACH payments through the NACHA system caused by initiating rejected ACHs, and other damages and expenses caused by the breach. g. Stacking Fee. If subsequent to entering this Agreement, Merchant sells any Future Receipts to, or obtains a loan secured by any Future Receipts from any other person or entity (“Stacking”) without Purchaser’s prior written consent before Purchaser collects the entire Amount Sold, and Merchant is otherwise in breach of this Agreement, then Merchant agrees to pay Purchaser an additional $1,000 Stacking Fee. The parties agree that the Stacking Fee is a good faith estimate of the damages caused by this breach of the Agreement including the increased resources required to be expended by Purchaser to respond to the breach, the increased risk to Purchaser caused by the Stacking, including the potential for having to respond to competing creditors and other damages and expenses caused by the breach. TERMS AND CONDITIONS IN ADDITION TO THE ABOVE TERMS: 1. Nonrecourse Sale of Future Receipts (THIS IS NOT A LOAN). In consideration of the payment of the Purchase Price specified above, Merchant hereby sells, assigns, and transfers to Purchaser, without recourse, the Amount Sold and will deliver the Specified Percentage of the proceeds of each sale made by Merchant (collectively “Future Receipts”) in accordance with this Agreement. “Future Receipts” means all payments received by Merchant, or its right to receive such payments, including but not limited to (a) payments made by cash, check, Automated Clearinghouse (“ACH”) or other electronic transfer, (b) payments, or rights to payments, made by credit card, debit card, bank card, charge card (each such card shall be referred to herein as a “Payment Card”) or (c) payments made by any other form. The term “Future Receipts” includes Merchant’s accounts and payment intangibles. Merchant agrees that this Agreement applies to Merchant’s entire right, title and interest in the Future Receipts up to the Amount Sold. The terms and conditions of this Agreement shall remain in full force and effect until the Amount Sold has been delivered to Purchaser subject to the terms of this Agreement. Merchant and Purchaser agree that this sale and purchase is final and Merchant has no right to repurchase or resell the Future Receipts or any portion thereof. Merchant, any individual signing this Agreement as a Guarantor and Purchaser (each individually referred to herein as “Party” and collectively referred to herein as “Parties”) agree that the Purchase Price paid to Merchant is the price paid to purchase Merchant’s Future Receipts and that the transaction contemplated by this Agreement is a purchase and sale of the Future Receipts. The Parties hereby agree that the transaction contemplated by this Agreement is not a loan, a forbearance of money lent or any similar loan or lending transaction. Merchant understands, agrees and represents that this transaction is made for business or commercial purposes with respect to the underlying Merchant only, and may not be used for any other business or for personal use. Merchant agrees that it will treat the Purchase Price and Amount Sold in a manner consistent with a sale in its accounting records and tax returns. Merchant agrees that Purchaser is entitled to audit Merchant’s accounting records upon reasonable notice in order to verify compliance. Merchant waives any rights of privacy, confidentiality or taxpayer privilege in any litigation or arbitration in which Merchant asserts that this transaction is anything other than a sale of Future Receipts. 2. Changes to the Estimated Remittance Amount (IMPORTANT PROTECTION FOR MERCHANT). a. Requesting a Reconciliation Review. The Estimated Remittance Amount is intended to represent the Specified Percentage of Merchant’s daily or weekly Future Receipts. Either Purchaser or Merchant may give written notice to the other party requesting a reconciliation to determine whether Purchaser received an amount greater or less than the Purchased Percentage of Merchant’s Future Receipts. Any written request made by Merchant to Purchaser under this Section shall be sent to VOX Funding, 100 Park Ave, 26th Floor, New York, NY 10017 or at reconciliations@voxfunding.com, and Purchaser may update this contact request by written notification to Merchant as needed. b. Reconciliation Request Processing. Each reconciliation review period is limited to Merchant’s Future Receipts for the calendar month immediately preceding the request. Notice of the reconciliation request must be given by the last calendar day of the month following the calendar month for which the request is being made. Merchant shall either provide Purchaser with online access to its Bank Account or, at Purchaser’s request, provide bank statements showing the activity related to the Bank Account within five (5) calendar days after any request. Merchant also hereby authorizes Purchaser to obtain any bank statement directly from the Merchant’s Bank. If the bank information indicates transfers to or from the Bank Account that Purchaser deems reasonably material, then Purchaser may request and Merchant must promptly provide statements from the relevant bank account or reasonable documentation of the nature of the transfer. c. Adjusting the Estimated Remittance Amount. Upon reasonable verification of Merchant’s actual Future Receipts for the month under review, Purchaser shall adjust the Estimated Remittance Amount on a going-forward basis to more closely reflect the Merchant’s actual Future Receipts times the Specified Percentage. If the Estimated Remittance Amount will increase, Purchaser will give Merchant notice five (5) calendar days prior to any such adjustment. After each adjustment made pursuant to this Section, the new dollar amount shall be deemed the Estimated Remittance Amount until any subsequent adjustment. as Vox Funding LLC - Vox Agreement 2.0 Merchant Initials: ___________________________ Page | 3 FILED: NASSAU COUNTY CLERK 07/03/2024 09:31 AM INDEX NO. 611639/2024 DocuSign Envelope ID: 601EA142-EE44-4DF0-913D-F497E0B8D4BA NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/03/2024 3. Method of Remittance. Merchant hereby agrees to deliver the Amount Sold to Purchaser as (i) the Estimated Remittance Amount (based on the Specified Percentage) of Future Receipts by Purchaser periodically debiting the Estimated Remittance Amount from Merchant’s Bank Account via ACH transaction (a “Direct Debit”); (ii) as the Specified Percentage of each day’s Payment Card Receipts directly from Merchant’s card processor (a “Payment Card Split”); or (iii) the Estimated Remittance Amount (based on the Specified Percentage) of Future Receipts directly through a Lockbox arrangement (a “Lockbox”). Purchaser may, in its sole discretion select the method by which it will accept remittance of the Amount Sold and, upon written notice to Merchant, change the method by which it will accept remittance of the Amount Sold, and provide Merchant with updated remittance instructions. The following details each remittance type: a. Direct Debit. If Purchaser chooses to receive the remittance of the Amount Sold via a periodic Direct Debit of the Estimated Remittance Amount (based on the Specified Percentage) then Merchant agrees as follows: i. Bank Account. Merchant acknowledges and agrees that Merchant shall deposit all of Merchant’s Future Receipts into the Bank Account, except as otherwise agreed in writing by Purchaser. ii. Automated Clearinghouse for Estimated Remittance Amount. Merchant hereby authorizes Purchaser and its agents to initiate Automated Clearinghouse (“ACH”) payments equal to the Estimated Remittance Amount until Purchaser has received Future Receipts equal to the Amount Sold. iii. Merchant to Maintain the Bank Account. Merchant will be held responsible for any fees incurred by Purchaser resulting from a rejected ACH attempt or a breach of this Agreement. iv. Overdraft or Rejected Transactions the Responsibility of Merchant. Purchaser is not responsible for any overdrafts. v. ACH authorization. The Merchant shall provide all necessary ACH authorizations to Purchaser in the form set forth in Appendix A to this Agreement, and as requested by Purchaser from time to time as necessary. b. Payment Card Split. If Purchaser chooses to accept the remittance of the Specified Percentage of the Amount Sold through a Payment Card Split, Merchant will enter into an agreement with a card processor (“Processor”) acceptable to Purchaser, and authorize Processor to pay the Specified Percentage directly to Purchaser until Purchaser receives the total Amount Sold. Merchant acknowledges that Processor will be acting on behalf of Purchaser to collect the Specified Percentage. Merchant irrevocably grants Processor the right to hold the Specified Percentage and to pay Purchaser directly (at, before or after the time Processor credits or remits to Merchant the balance of the receipts not sold by Merchant to Purchaser) until Purchaser receives the entire Amount Sold. Processor may provide Purchaser with all information Purchaser deems pertinent. Merchant agrees to hold Purchaser harmless for the Processor’s actions or omissions. c. Lockbox. If Purchaser chooses to accept the remittance through a Lockbox, Purchaser is authorized by Merchant to receive remittance from the Lockbox. Merchant agrees to deposit all Future Receipts into the Lockbox and shall instruct Merchant’s Processor to deposit all receipts directly into the Lockbox. This Authorization shall continue until Purchaser has received an amount equal to the Amount Sold. 4. Changing the Remittance Frequency to Daily. If the Remittance Frequency is longer than daily, either Purchaser or Merchant may request that the Remittance Frequency be changed to daily. The Party requesting a change must notify the other Party in accordance with Section 21 (Notices). The effective date of the change shall take effect immediately upon such notice being sent to the other Party (the “Change Effective Date”). On the Change Effective Date the Remittance Amount shall be adjusted to reflect the change to daily remittances. 5. Purchase of Future Receipts from Affiliated Merchants. If there is more than one Merchant identified in this Agreement, then the term “Merchant” includes all identified Merchants and the Amount Sold means the aggregate amount of Future Receipts sold to Purchaser from such Merchants (“Aggregate Future Receipts”). The Specified Percentage will be calculated using the Aggregate Future Receipts, without regard to the actual Future Receipts of any individual Merchant. Purchaser is authorized to obtain the full amount of Aggregate Future Receipts from any other bank account owned or controlled by any Merchant. 6. Timing, Payment of Purchase Price, Processing Trial. Purchaser shall pay the Purchase Price or any portion thereof to Merchant only at a time, and through a method, acceptable to Purchaser and at Purchaser’s sole discretion. Purchaser, in its sole discretion, may refuse to pay the Purchase Price or any portion thereof to Merchant and cancel this Agreement at any time prior to the Purchase Price being paid. Prior to paying the Purchase Price, to the extent that Purchaser chooses to receive its Amount Sold pursuant to a Payment Card Split, as described above, Purchaser may conduct a site inspection and shall conduct a processing trial (the “Processing Trial”) to determine whether the Specified Percentage will be correctly processed and/or reported by Merchant’s card processor or bank to Purchaser. In the event Purchaser elects to conduct a Processing Trial, Merchant acknowledges and agrees that Purchaser will make its final decision, in its sole and absolute discretion, whether to purchase the Future Receipts after completion of the Processing Trial. If Purchaser conducts a Processing Trial and determines not to purchase the Future Receipts, any receipts remitted to Purchaser during the Processing Trial shall be returned to Merchant. as Vox Funding LLC - Vox Agreement 2.0 Merchant Initials: ___________________________ Page | 4 FILED: NASSAU COUNTY CLERK 07/03/2024 09:31 AM INDEX NO. 611639/2024 DocuSign Envelope ID: 601EA142-EE44-4DF0-913D-F497E0B8D4BA NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/03/2024 7. Application of Amounts Received by Purchaser. Purchaser reserves the right to apply amounts received by it under this Agreement to any fees or other charges due to Purchaser from Merchant prior to applying such amounts to reduce the amount of any outstanding Amount Sold. 8. Waiver. There shall be affected no waiver by failure on the part of Purchaser to exercise, or delay in exercising, any right under this Agreement, nor shall any single or partial exercise by Purchaser of any right under this Agreement preclude any other future exercise of any right. Subject to arbitration as provided in Section 27 of this Agreement, the remedies provided hereunder are cumulative and not exclusive of any remedies provided by law or equity. 9. Acknowledgment of Security Interest and Security Agreement. The Future Receipts sold by Merchant to Purchaser pursuant to this Agreement are “accounts” or “payment intangibles” as those terms are defined in the Uniform Commercial Code of the State of New York(the “UCC”) and such sale shall constitute and shall be construed and treated for all purposes as a true and complete sale, conveying good title to the Future Receipts, from Merchant to Purchaser. To the extent the Future Receipts are “accounts” or “payment intangibles” then (i) the sale of the Future Receipts creates a security interest as defined in the UCC; (ii) this Agreement constitutes a “security agreement” under the UCC; and (iii) Purchaser has all the rights of a secured party under the UCC with respect to such Future Receipts. Merchant further agrees that, with or without a breach of this Agreement, Purchaser may notify account debtors, or other persons obligated on the Future Receipts or holding the Future Receipts of Merchant’s sale of same and may instruct them to make payment or otherwise render performance to or for the benefit of Purchaser. Merchant hereby grants Purchaser a security interest in, and authorizes Purchaser to file a UCC financing statement covering, all of Merchant’s present and future accounts, chattel paper, deposit accounts, documents, personal property, assets and fixtures, general intangibles, instruments, equipment, inventory wherever located, and proceeds now or hereafter owned or acquired by Merchant. 10. Authorization to File Notice of Sale and Security Interest. Merchant hereby authorizes Purchaser to file one or more financing statements pursuant to the UCC to evidence and perfect Purchaser’s security interest and any continuation statements or amendments thereto. The UCC financing statement may state that the sale of the Future Receipts is intended to be a sale and not an assignment for security and that the Merchant is prohibited from obtaining any financing that impairs the value of the Future Receipts or Purchaser’s right to collect same. Merchant authorizes Processor to remit to Purchaser all costs incurred by Purchaser associated with the filing, amendment or termination of any UCC filings. 11. Broker Fees, Damages, and Purchaser’s Risk. PURCHASER DOES NOT CHARGE ANY BROKER FEES. If Merchant is charged such a fee, it is not being charged by Purchaser or an agent of Purchaser. Additionally, because this is not a loan, Purchaser does not charge any interest, finance charges, points, late fees or similar fees (except as permitted by applicable law in connection with civil judgments). Purchaser is purchasing the Future Receipts at a discount. Because the transaction evidenced by this Agreement is not a loan, there are no specific scheduled payments and no repayment term. Purchaser assumes the risk that Future Receipts may be remitted more slowly than Purchaser may have anticipated or projected because Merchant’s business has slowed down, and the risk that the full Amount Sold may never be remitted because Merchant’s business went bankrupt, or Merchant otherwise ceased operations in the ordinary course of business. Purchaser is buying the Amount Sold knowing the risks that Merchant’s business may slow down or fail, and Purchaser assumes these risks based on Merchant’s representations, warranties and covenants in this Agreement that are designed to give Purchaser a reasonable and fair opportunity to receive the benefit of its bargain. 12. Right to Cancel. Merchant may cancel this transaction at any time prior to midnight of the fifth day after Purchaser forwards the Disbursement Amount to Merchant. In order to cancel the transaction, Merchant must provide notice to Purchaser and return the full Disbursement Amount to Purchaser within five (5) calendar days of receipt of the Disbursement Amount. Purchaser shall retain the Processing Fee, but Merchant shall not be responsible for any other costs if this Agreement is cancelled pursuant to this Section. 13. Right of Access. In order to ensure that Merchant is complying with the terms of this Agreement, Purchaser shall have the right to (i) enter during reasonable business hours, without notice, the premises of Merchant’s business for the purpose of inspecting and checking Merchant’s transaction processing terminals to ensure the terminals are properly programmed to submit and or batch Merchant’s daily receipts to the Processor and to ensure that Merchant has not violated any other provision of this Agreement, and (ii) Merchant shall provide reasonable access to its employees and records and all other items reasonably requested by Purchaser. 14. Merchant’s Representations, Warranties and Covenants. Merchant represents, warrants and covenants that as of the date of this Agreement and unless expressly stated otherwise during the course of this Agreement: (i) Merchant has reviewed the Estimated Average Monthly Receipts shown on Page 1 of this Agreement and agrees that this estimate is made by Merchant in good faith and accurately represents Merchant’s revenue; as Vox Funding LLC - Vox Agreement 2.0 Merchant Initials: ___________________________ Page | 5 FILED: NASSAU COUNTY CLERK 07/03/2024 09:31 AM INDEX NO. 611639/2024 DocuSign Envelope ID: 601EA142-EE44-4DF0-913D-F497E0B8D4BA NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/03/2024 (ii) the Future Receipts are not subject to any claims, charges, liens, restrictions, encumbrances or security interests of any nature whatsoever unless otherwise disclosed to Purchaser in writing prior to payment of the Disbursement Amount to Merchant; (iii) Merchant will not sell the Future Receipts to another person or entity; (iv) Merchant will not take any action with the intent to interfere with Purchaser’s right to collect the purchased Future Receipts; (v) Merchant will not conduct business under any name other than as disclosed herein, shall not change its business name, location or EIN without the prior written consent of Purchaser; (vi) except as disclosed to Purchaser in writing prior to payment of the Disbursement Amount to Merchant, Merchant has no current plans to close its business either temporarily, whether for renovations, repairs or any other purpose, or permanently. Merchant will not voluntarily close its business on a temporary basis for renovations, repairs, or any other voluntary purposes. This provision, however, does not prohibit Merchant from closing its business temporarily if such closing is required to conduct renovations or repairs that are required by local ordinance or other legal order, such as from a health or fire inspector, or if otherwise forced to do so by circumstances outside of the control of Merchant. Prior to any such closure, Merchant will provide Purchaser ten (10) calendar days’ notice to the extent practicable; (vii) Merchant will not voluntarily sell, dispose, transfer or otherwise convey all or substantially all of its business or assets or control of its business, or open, whether directly or indirectly, a competing business, without the express prior written consent of Purchaser, and the written agreement of any purchaser or transferee assuming all of Merchant’s obligations under this Agreement pursuant to documentation reasonably satisfactory to Purchaser; (viii) Merchant will not change or add Payment Card processors or change the Bank Account without the prior written approval of Purchaser; (ix) Merchant will not take any action to intentionally discourage the use of Payment Cards; (x) Merchant will not undertake any transaction involving the sale of Merchant, either by an issuance, sale or transfer of ownership interests in Merchant that results in a change in ownership or voting control of Merchant, or by a sale or transfer of substantially all of the assets of Merchant; (xi) Merchant will not voluntarily permit another person or company, including without limitation a franchisor company (if Merchant is franchisee), to assume or take over the operation and/or control of the Merchant’s business or business locations; (xii) as of the date of this Agreement Merchant is not currently contemplating the filing of a bankruptcy proceeding or closing Merchant’s business and as of the date of this Agreement Merchant has not retained any attorney, other consultant or professional to provide any advice, assistance or planning with respect to the filing of a bankruptcy; (xiii) all information provided by Merchant to Purchaser in this Agreement, application, interview with Purchaser or otherwise, and all of Merchant’s financial statements and other financial documents provided to Purchaser are true and correct and accurately reflect Merchant’s financial condition and results of operations as of the dates provided; (xiv) Merchant will be truthful in all future statements to Purchaser and will provide Purchaser with accurate and complete information regarding Merchant’s business as reasonably required by this Agreement; (xv) Merchant has all permits, licenses, approvals, consents and authorizations necessary to conduct its business and will promptly pay all necessary taxes, including but not limited to employment and sales and use taxes; (xvi) Merchant and the person(s) signing this Agreement on behalf of Merchant have full power and authority to enter into and perform the obligations under this Agreement; (xvii) Merchant will provide Purchaser copies of and/or electronic access to all reasonable documentation related to Merchant’s card processing activity or financial, banking, or tax affairs within five (5) calendar days of a request by Purchaser. The parties agree that reasonable documentation includes but is not limited to cash flow projections, detailed accounts receivable aging reports, financial statements, bank statements and other reasonable form of documentation in accordance with this Agreement; (xviii) Merchant will not take any action to cause the Future Receipts to be settled or delivered to any bank account other than the business Bank Account and in accordance with the terms of this Agreement; Vox Funding LLC - Vox Agreement 2.0 Merchant Initials: ___________________________ Page | 6 FILED: NASSAU COUNTY CLERK 07/03/2024 09:31 AM INDEX NO. 611639/2024 DocuSign Envelope ID: 601EA142-EE44-4DF0-913D-F497E0B8D4BA NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/03/2024 (xix) Merchant will not enter into any financing agreement resulting in Stacking and Purchaser may share information regarding this Agreement with any third party in order to determine whether Merchant is in compliance with this provision; (xx) Merchant’s execution and performance of this Agreement will not violate any court order, administrative order or decree, law or regulation to which Merchant is subject, including any agreement that prohibits the sale or pledge of Merchant’s Future Receipts; (xxi) Merchant will conduct its business consistent with past practice and shall not take any action that would have an adverse effect on the use, acceptance, or authorization of any Payment Card for the purchase of Merchant’s products or services; (xxii) Merchant will not voluntarily block Purchaser from receiving/requesting ACH remittances from Merchant’s Bank Account; (xxiii) Merchant is a sophisticated business entity familiar with the type of transaction described under this Agreement, and has had a full opportunity to consult with counsel of their choice, and has consulted with counsel or has decided not to avail themselves of that opportunity; and (xxiv) as of the date of this Agreement Merchant has disclosed any condition that has resulted in or would result in a material adverse change to Merchant’s business and currently knows of no condition that is likely to result in a material adverse change to its business. 15. Remedies for Merchant’s Breach of this Agreement. If Merchant violates or fails to comply with any term, obligation, warranty, representation or covenant in this Agreement, Purchaser may proceed to protect and enforce its rights under this Agreement, including, but not limited to, the following remedies: a. The Specified Percentage shall equal 100% of all Future Receipts. b. The full undelivered Amount Sold plus all fees and charges assessed under this Agreement will become due and payable in full immediately. Purchaser may electronically debit from any of Merchant’s bank accounts via ACH or otherwise, and/or may instruct Merchant’s processor(s) and/or account debtors to forward to Purchaser all or any portion of the sums due to Purchaser. c. Purchaser shall be entitled to recover from Merchant and Guarantors all costs of collection, including reasonable attorney’s fees and third-party collection costs. d. Subject to arbitration as provided in Section 27, all rights, powers, and remedies of Purchaser are cumulative and not exclusive, and shall be in addition to any other rights, powers or remedies provided by law or equity. 16. Telephone Monitoring, Recording and Contacts. Merchant agrees that any call between Purchaser and Merchant, and their agents and employees may be recorded or monitored. These calls are monitored and/or recorded solely for evaluation by supervisors, training, monitoring for compliance purposes, collections, and quality control. By signing this Agreement, Merchant agrees that any call between Purchaser and Merchant or a representative of Merchant may be monitored and/or recorded for these purposes, unless prohibited by law. Merchant further agrees that: (i) it has an established business relationship with Purchaser and may be contacted from time to time regarding transactions with Purchaser by telephone, text message or email; (ii) such contacts are not considered unsolicited or inconvenient; and (iii) any such contact may be made using any wireless, mobile cellular or other number Merchant or its representative gave Purchaser, using any e-mail address Merchant or its representative gave Purchaser, or using an automated dialing and announcing or similar device, unless prohibited by law. This authorization is binding upon Merchant upon signing this Agreement and shall not be deemed withdrawn or revoked should Purchaser determine not to purchase the Future Receipts from Merchant. Merchant authorizes Purchaser, its affiliates, agents and independent contractors to contact Merchant at any telephone number Merchant provides to Purchaser or from which Merchant places a call to Purchaser, or any telephone number where Purchaser believes it may reach Merchant, using any means of communication, including but not limited to calls or text messages to mobile, cellular, wireless or similar devices or calls or text messages using an automated telephone dialing system and/or artificial voices or prerecorded messages, even if Merchant incurs charges for receiving such communications. Merchant also agrees that Purchaser, its affiliates, agents and independent contractors, may use any other medium not prohibited by law including, but not limited to, mail, e-mail and facsimile, to contact Merchant. Merchant expressly consents to conduct business by electronic means. 17. Publicity. Merchant hereby authorizes Purchaser to use its name in listings of clients and in advertising and marketing materials. 18. Reporting and Other Authorizations. By signing this Agreement, Merchant and any individual Guarantor signing below authorizes Purchaser, its agents and representatives, and any credit reporting agency engaged by Purchaser (i) to investigate any references given or any Vox Funding LLC - Vox Agreement 2.0 Merchant Initials: ___________________________ Page | 7 FILED: NASSAU COUNTY CLERK 07/03/2024 09:31 AM INDEX NO. 611639/2024 DocuSign Envelope ID: 601EA142-EE44-4DF0-913D-F497E0B8D4BA NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/03/2024 other statements or data obtained from or about Merchant and any of its Guarantors for the purpose of this Agreement, (ii) to obtain a consumer or business credit report or any background report on the Merchant and any individual that signs this Agreement deemed necessary by Purchaser for purposes of deciding whether to approve the purchase of the Amount Sold or for any update, renewal, or for e