FLIP FUNDING LLC
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`v.
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`CASH COW ORGANICS, LLC. D/B/A
`CASH COW ORGANICS AND ZUNDAY
`ACSAY BRODIE
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`SUPERIOR COURT
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`JUDICIAL DISTRICT OF FAIRFIELD
`AT STAMFORD
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`JULY 2, 2024
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`AFFIDAVIT IN SUPPORT OF EX PARTE PREJUDGMENT REMEDY
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`I, Sarah Beityakov, being duly sworn hereby depose and say:
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`1.
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`2.
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`I am over the age of 18 years and understand the obligations of an oath.
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`I am a representative of FLIP FUNDING LLC (hereinafter “FLIP”), the attaching
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`creditor in this action.
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`3.
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`As such, I have personal knowledge of the matters stated herein as well as in
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`FLIP’s complaint and the facts set forth are true and accurate to the best of my knowledge and
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`belief.
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`4.
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`I make this affidavit from personal knowledge and my review of business records
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`maintained by FLIP regarding a merchant case advance transaction entered into with CASH
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`COW ORGANICS, LLC. D/B/A CASH COW ORGANICS the default of the terms of the
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`merchant cash advance agreement with CASH COW ORGANICS, LLC. D/B/A CASH COW
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`ORGANICS; the default of the personal guarantee securing the merchant cash advance
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`agreement as executed by ZUNDAY ACSAY BRODIE; the balance due subject to this action
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`and in support of FLIP’s ex parte prejudgment remedy in accordance with the commercial
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`waivers contained within the merchant case advance agreement and guarantee owned and held
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`

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`by FLIP.
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`5.
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`The business records that I have reviewed and rely upon in the making of this
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`affidavit are produced in the usual and ordinary course of FLIP’s business as a commercial lender
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`and servicer. The entries reflected within those records were made at or within a reasonable
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`period of time of the event reflected. It is in the usual and ordinary course of FLIP’s business to
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`create and maintain records of transactions it originates, funds and services as well as ledgers and
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`payment histories regarding the balances due from any obligors to FLIP.
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`6.
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`Flip Funding LLC is a limited liability company existing under the laws of the
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`state of Connecticut with an office and place of business located at 1266 E Main Street Ste 700R,
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`Stamford, CT 06902.
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`7.
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`CASH COW ORGANICS, LLC. D/B/A CASH COW ORGANICS; (“Obligor”)
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`is a company existing under the laws of the state of California with an office and place of business
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`located at 8240 Chamberlain Ln, Reseda, CA 91335.
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`8.
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`ZUNDAY ACSAY BRODIE (“Guarantor”) is an individual and resident of the
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`state of California with a usual place of abode located at 28928 Woodside Dr, Santa Clarita, CA
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`91390.
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`9.
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`On or about June 26, 2024, the Obligor executed a commercial standard merchant
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`cash advance agreement in favor of FLIP pursuant to which certain sums of money were
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`advanced to the Obligor and required to be repaid to FLIP in accordance with the terms recited
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`therein (the “MCA”). A true and accurate copy of the MCA (redacted as required by Practice
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`Book 4-7) is attached hereto as Exhibit A.
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`10.
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`Pursuant to the terms of the MCA, the Obligor was required to make daily
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`payments beginning on June 27, 2024, and continuing thereafter until the date on which FLIP
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`-2-
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`received the total receivables purchased amount stated in the MCA.
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`11.
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`Obligor received the funds evidenced by the MCA and became obligated to tender
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`payments to FLIP in accordance with the terms stated in the MCA.
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`12.
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`Obligor has breached the obligations of the MCA by, inter alia, failing to tender
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`the daily installment payments when due (the “Default”).
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`13.
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`Upon the occurrence of an event of default as defined in the MCA, FLIP is vested
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`with the remedies set forth in the MCA which include, inter alia, the ability to enforce the MCA
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`by any and all appropriate causes of action, whether sounding in law or equity, and seek entry of
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`a monetary judgment against the Obligors for all amounts remaining due to FLIP .
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`14.
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`The MCA further contains explicit language which permits FLIP to pursue an ex
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`parte prejudgment remedy under the provisions of Conn. Gen. Stat. § 52-278f. The MCA recites:
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`COMMERCIAL PREJUDGMENT REMEDY WAIVER EACH AND
`EVERY MERCHANT AND GUARANTOR OF THIS AGREEMENT, AND
`EACH OTHER PERSON OR ENTITY WHO MAY BECOME LIABLE
`FOR ALL OR ANY PART OF THIS OBLIGATION, HEREBY
`ACKNOWLEDGE THAT THE TRANSACTION OF WHICH THIS
`AGREEMENT IS A PART IS A COMMERCIAL TRANSACTION, AND
`TO THE EXTENT ALLOWED UNDER CONNECTICUT GENERAL
`STATUTES SECTIONS 52-278a TO 52-278m, INCLUSIVE, OR BY
`OTHER APPLICABLE LAW EACH AND EVERY MERCHANT AND
`GUARANTOR OF THIS AGREEMENT HEREBY WAIVE (A) ALL
`RIGHTS TO NOTICE AND PRIOR COURT HEARING OR COURT
`ORDER IN CONNECTION WITH ANY AND ALL PREJUDGMENT
`REMEDIES TO WHICH FF MAY BECOME ENTITLED BY VIRTUE OF
`ANY DEFAULT OR PROVISION OF THIS AGREEMENT OR
`SECURITY AGREEMENT SECURING THIS AGREEMENTAND (B)
`ALL RIGHTS TO REQUEST THAT UF POST A BOND, WITH OR
`WITHOUT SURETY, TO PROTECT SAID MERCHANT OR
`GUARANTOR AGAINST DAMAGES THAT MAY BE CAUSED BY ANY
`PREJUDGMENT REMEDY SOUGHT OR OBTAINED BY FF BY
`VIRTUE OF ANY DEFAULT OR PROVISION OF THIS AGREEMENT
`OR SECURITY OR GUARANTY AGREEMENT SECURING THIS
`AGREEMENT.
`AS PART OF THE SAID PREJUDGMENT REMEDY WAIVER ABOVE,
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`BUT NOT AN EXCLUSIVE REMEDY, EACH AND EVERY MERCHANT
`AND GUARANTOR OF THIS AGREEMENT, AND EACH OTHER
`PERSON OR ENTITY WHO MAY BECOME LIABLE FOR ALL OR ANY
`PART OF THIS OBLIGATION HEREBY ACKNOWLEDGE,
`UNDERSTAND, AGREE AND CONSENT THAT FF MAY ATTACH OR
`GARNISH ANY AND ALL OF MERCHANT AND GUARANTOR’S
`MONEY HELD IN ANY BANK ACCOUNT AT ANY BANKING
`INSTITUTION IF THAT BANKING INSTITUTION HAS A BRANCH OR
`OFFICE PHYSICALLY LOCATED IN CONNECTICUT AND/OR IS
`REGISTERED WITH THE SECRETARY OF STATE/AUTHORIZED TO
`CONDUCT BUSINESS IN CONNECTICUT.
`THE PARTIES HERETO AGREE THAT THEY HAVE HAD THE
`OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL OF THEIR
`OWN CHOOSING WITH RESPECT TO THE TERMS AND
`CONDITIONS HEREIN AS WELL AS THEIR MEANING.
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`15.
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`Obligor has failed, neglected and/or refused to cure the Default by payment to
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`FLIP of all sums due to it and, as a result, FLIP has elected to commence this action pursuant
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`to its rights under the MCA and Connecticut law for enforcement of its rights thereunder.
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`16.
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`On or about the date of the execution of the MCA, Guarantor executed and
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`conveyed a continuing guarantee agreement as additional security for Obligor’s performance of
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`the payment terms of the MCA (the “Guarantee”). A true and accurate copy of the Guarantee
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`(redacted as required by Practice Book § 4-7) is appended to the MCA and attached hereto as
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`Exhibit A.
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`17.
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`The terms of the Guarantee require, inter alia, Guarantor to undertake any and all
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`actions required of Obligor under the terms of the MCA in the event of any default or failure to
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`perform in accordance with the terms recited in the MCA by the Obligor.
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`18.
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`Obligor has breached the obligations of the MCA by, inter alia, failing to tender
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`the daily installment payments when due (the “Default”).
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`19.
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`Guarantor has, to date, failed, refused and/or neglected to tender payment to FLIP
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`of all amounts remaining due under the MCA as required by the Guarantee (the “Guarantee
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`Default”).
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`20.
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`Guarantor’s failure to perform in accordance with the obligations stated within
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`the Guarantee is a breach of their agreement with FLIP .
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`21.
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`The Guarantee contains an explicit commercial prejudgment remedy waiver in
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`favor of FLIP . The Guarantee provides:
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`COMMERCIAL PREJUDGMENT REMEDY WAIVER EACH AND
`EVERY MERCHANT AND GUARANTOR OF THIS AGREEMENT,
`AND EACH OTHER PERSON OR ENTITY WHO MAY BECOME
`LIABLE FOR ALL OR ANY PART OF THIS OBLIGATION,
`HEREBY ACKNOWLEDGE THAT THE TRANSACTION OF
`WHICH THIS AGREEMENT IS A PART IS A COMMERCIAL
`TRANSACTION, AND TO THE EXTENT ALLOWED UNDER
`CONNECTICUT GENERAL STATUTES SECTIONS 52-278a TO 52-
`278m, INCLUSIVE, OR BY OTHER APPLICABLE LAW EACH AND
`EVERY MERCHANT AND GUARANTOR OF THIS AGREEMENT
`HEREBY WAIVE (A) ALL RIGHTS TO NOTICE AND PRIOR
`COURT HEARING OR COURT ORDER IN CONNECTION WITH
`ANY AND ALL PREJUDGMENT REMEDIES TO WHICH FF MAY
`BECOME ENTITLED BY VIRTUE OF ANY DEFAULT OR
`PROVISION OF THIS AGREEMENT OR SECURITY AGREEMENT
`SECURING THIS AGREEMENTAND (B) ALL RIGHTS TO
`REQUEST THAT UF POST A BOND, WITH OR WITHOUT
`SURETY, TO PROTECT SAID MERCHANT OR GUARANTOR
`AGAINST DAMAGES THAT MAY BE CAUSED BY ANY
`PREJUDGMENT REMEDY SOUGHT OR OBTAINED BY FF BY
`VIRTUE OF ANY DEFAULT OR PROVISION OF THIS
`AGREEMENT OR SECURITY OR GUARANTY AGREEMENT
`SECURING THIS AGREEMENT.
`AS PART OF THE SAID PREJUDGMENT REMEDY WAIVER
`ABOVE, BUT NOT AN EXCLUSIVE REMEDY, EACH AND EVERY
`MERCHANT AND GUARANTOR OF THIS AGREEMENT, AND
`EACH OTHER PERSON OR ENTITY WHO MAY BECOME
`LIABLE FOR ALL OR ANY PART OF THIS OBLIGATION
`HEREBY ACKNOWLEDGE, UNDERSTAND, AGREE AND
`CONSENT THAT FF MAY ATTACH OR GARNISH ANY AND ALL
`OF MERCHANT AND GUARANTOR’S MONEY HELD IN ANY
`BANK ACCOUNT AT ANY BANKING INSTITUTION IF THAT
`BANKING
`INSTITUTION HAS A BRANCH OR OFFICE
`PHYSICALLY LOCATED
`IN CONNECTICUT AND/OR
`IS
`REGISTERED WITH THE SECRETARY OF STATE/AUTHORIZED
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`-5-
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`TO CONDUCT BUSINESS IN CONNECTICUT.
`THE PARTIES HERETO AGREE THAT THEY HAVE HAD THE
`OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL OF
`THEIR OWN CHOOSING WITH RESPECT TO THE TERMS AND
`CONDITIONS HEREIN AS WELL AS THEIR MEANING.
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`22.
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`As a result of the collective defaults of the parties under the MCA and Guarantee,
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`there remain the following sums due and owing to FLIP as of the date of this affidavit:
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`Remaining Receivables Purchased Amount
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`Default Fee
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`Attorney’s Fees
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`$
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`$
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`$
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`14,990.00
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`5,000.00
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`3,747.50
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`Non-Sufficient Funds Fee $ 140.00
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`TOTAL DUE
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` $
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`23,877.50
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`The MCA and Guarantee both contain a venue and forum selection clause which specifies that
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`any litigation relating thereto shall be commenced and maintained exclusively in any court
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`located in Fairfield to the exclusion of all other venues and/or forums.
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`23.
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`The MCA and Guarantee both provide that FLIP shall be entitled to collection of
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`its fees and costs incurred in enforcing the terms thereof including, but not limited to, reasonable
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`attorney’s fees.
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`24.
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`Pursuant to Conn. Gen. Stat. § 37-3a, FLIP is seeking imposition of post-
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`judgment interest on all sums wrongfully withheld by Obligors and Guarantors.
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`25.
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`It is my belief that the foregoing statement of facts are sufficient to demonstrate
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`probable cause that a judgment will enter in favor of FLIP against Obligors and Guarantor in the
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`amount of at least Twenty- Three Thousand Eight Hundred Seventy- Seven Dollars and Fifty
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`Cents. ($23,877.50).
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`-6-
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`Further affiant sayeth naught.
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`FLIP
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`ING LLC
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`A
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`By: Sarah Beityakov
`Its: Accounting Manager
`Duly Authorized
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`_}<y Yo
`STATE OF
`COUNTY OF kv S
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`Subscribed and swom to before methis
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`day of July 2024.
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`My Commission Expires:
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`xoesoko “oe
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`rae
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`EXHIBIT A
`EXHIBIT A
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` Agreement dated
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`between FLIP FUNDING LLC, having a place of business in Connecticut (“FF”) the Merchant(s) listed below (“Merchant”)
`MERCHANT INFORMATION
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`Merchant’s Legal Name:
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`D/B/A:
`Type of Entity
`Physical Address:
`City:
`Contact(s) Name:
`Mailing Address:
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`State of Incorporation / Organization:
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`State:
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`Zip:
`Cellphone Number:
`City:
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`Business Phone:
`Email:
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`State:
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`Zip:
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`Purchase Price:$
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`Purchased Percent
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`% Purchased Amount: $
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`Remittance: $
`Payment Frequency:
` PURCHASE AND SALE OF FUTURE RECEIVABLES
`Merchant hereby sells, assigns and transfers to FF making FF the absolute owner) in consideration of the “Purchase Price” specified above, the Purchased
`Percentage of all of Merchant’s Future Receipts, contract rights and other entitlements arising from or relating to the payment of monies from Merchant’s
`customers’ and/or other third party payors (the “ Future Receipts” defined as all payments made by cash, check, electronic transfer or other form of monetary
`payment deposited into Merchants Bank Account), for the payments to Merchant as a result of Merchant’s sale of goods and/or services (the “Transactions”) until the
`“Purchased Amount has been delivered by or on behalf of Merchant to FF Merchant is selling a portion of a future revenue stream to FF at a discount, not borrowing
`money from FF, therefore there is no interest rate or payment schedule and no time period during which the Purchased Amount must be collected by FF. The
`Remittance is a good faith estimate of Purchased Percentage multiplied by revenues of Merchant. 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. FF is entering this
`Agreement knowing the risks that Merchant’s business may slow down or fail, and FF assumes these risks based on Merchant’s representations, warranties and
`covenants in this Agreement, which are designed to give FF a reasonable and fair opportunity to receive the benefit of its bargain. Merchant and Guarantor are only
`guaranteeing their performance of the terms of this Revenue Purchase Agreement, and are not guaranteeing the payment of the Purchased Amount. The initial
`Remittance shall be as described above. The Remittance is subject to adjustment as set forth in Paragraph 1.4 and Paragraph 1.5. FF will debit the Remittance
`each business day from only one depositing bank account, which account must be acceptable to, and pre-approved by, FF (the “Account”) into which Merchant
`and Merchant’s customers shall remit the Receipts from each Transaction, until such time as FF receives payment in full of the Purchased Amount. Merchant
`hereby authorizes FF to ACH debit the initial Remittance from the Account on the agreed upon Payment Frequency; a daily basis means any day that is not a
`United States banking holiday. FF’s payment of the Purchase Price shall be deemed the acceptance and performance by FF of this Agreement. Merchant
`understands that it is responsible for ensuring that the initial Remittance to be debited by FF remains in the Account and will be held responsible for any fees incurred
`by FF resulting from a rejected ACH attempt or an Event of Default. FF is not responsible for any overdrafts or rejected transactions that may result from FF’s ACH
`debiting the Agreed Remittance under the terms of this Agreement. Notwithstanding anything to the contrary in this Agreement or any other agreement between
`FF and Merchant, upon the occurrence of an Event of Default of the MERCHANT AGREEMENT TERMS AND CONDITIONS the Purchased Percentage shall
`equal 100%. A list of all fees applicable under this Agreement is contained in Appendix A.
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`THE MERCHANT AGREEMENT “TERMS AND CONDITIONS”, THE “SECURITY AGREEMENT AND GUARANTY” AND THE “ADMINISTRATIVE
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`FORTHE MERCHANT (#1) By:
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`(Print Name and Title)
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`FOR THE MERCHANT (#2)By:
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`(Print Name and Title)
`BY OWNER/GUARANTOR(#2)By:
`(Print Name and Title)
`BY OWNER/GUARANTOR(#2)By:
`(Print Name and Title)
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`(Signature)
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`(Signature)
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`(Signature)
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`(Signature)
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`Page 1
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`Initial:
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`06/26/2024
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`CASH COW ORGANICS, LLC.
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`CASH COW ORGANICS
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`8240 CHAMBERLAIN LN..
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`RESEDA
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`CA
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`91335
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`28928 WOODSIDE DR.
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`SANTA CLARITA
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`CA
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`91390
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`ZUNDAY A. BRODIE
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`CA
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`10,000.00
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`45
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`14,990.00
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`DAILY
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`699.00
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`ZUNDAY A. BRODIE
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`ZUNDAY A. BRODIE
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`DocuSign Envelope ID: B5C67393-BC82-4EB9-AF6B-AA5E823C7F7C
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`

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`MERCHANT AGREEMENT TERMS AND CONDITIONS
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`TERMSOFENROLLMENT INPROGRAM
`1
`Merchant Deposit Agreement and Processor.
`1.1
`Merchant shall (A) execute an agreement acceptable to FF with a Bank acceptable to FF to obtain electronic fund transfer services for the Account, and (B) if
`applicable, execute an agreement acceptable to FF with a credit and debit card processor (the “Processor”) instructing the Processor to deposit all Receipts into the
`Account. Merchant shall provide FF 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 FF and/or its agent(s) to withdraw from the
`Account via ACH debit the amounts owed to FF for the receipts as specified herein and to pay such amounts to FF. These authorizations apply not only to the
`approved Account but also to any subsequent or alternate account used by the Merchant for these deposits, whether pre- approved by FF or not. This additional
`authorization is not a waiver of FF’s entitlement to declare this Agreement breached by Merchant as a result of its usage of an account which FF did not first pre-approve in
`writing prior to Merchant’s usage thereof. The aforementioned authorizations shall be irrevocable without the written consent of FF.
`Term of Agreement.
`1.2
`This Agreement shall remain in full force and effect until the entire Purchased Amount and any other amounts due are received by FF as per the terms of this Agreement. 1.3
`Future Purchase of Increments.
`Subject to the terms of this Agreement, FF offers to purchase additional Receipts in the “Increments” stated in on Page 1 of this Agreement, if any. FF reserves the
`right to delay or rescind the offer to purchase any Increment or any additional Receipts, in its sole and absolute discretion .
`1.4
`Reconciliation.
`As long as an Event of Default, or breach of this Agreement, has not occurred, once per calendar month Merchant may request a retroactive reconciliation of the total
`Remittance Amount(for the purposes of this Agreement “total Remittance Amount” shall be defined as all payments made by Merchant to FF after FF remitted the
`Purchase Price to Merchant). All requests hereunder must be in writing to reconciliations@flipfunding.com. Said request must include copies of all of Merchant’s
`bank account statements, credit card processing statements, and accounts receivable report if applicable, for the requested month. FF retains the right the request
`additional documentation such as bank login or DecisionLogic access to view Merchant’s accounts, refusal to provide access shall be a breach of this Agreement and
`FF shall have no obligation to reconcile. Such reconciliation, if applicable, shall be performed by FF within five (5) Business Days following its receipt of
`Merchant’s request for reconciliation by either crediting or debiting the difference back to, or from, Merchants Bank Account so that the total amount debited by FF
`shall equal the Specific Percentage of the Future Receipts that Merchant Collected from the date of this Agreement up to and including the date of the
`Reconciliation request. Nothing set forth in this section shall be deemed to provide Merchant with the right to interfere with FF’s right and ability to debit Merchant’s
`Account while the Request is pending or to unilaterally modify the initial Remittance amount, in any method other than the ones listed in this Agreement.
`1.5
`Adjustments to the Remittance.
`As long an Event of Default, or breach of this Agreement, has not occurred and should the Merchant experience a decrease in its’ Future Receipts, Merchant may
`give notice to FF to request a decrease in the Remittance. All requests hereunder must be in writing to flip-reconciliations@flipfunding.net and must include copies
`of all of Merchant’s bank account statements, credit card processing statements, and accounts receivable reports for the requested period. FF retains the right the
`request additional documentation such as bank login or DecisionLogic access to view Merchant’s accounts, refusal to provide access shall be a breach of this
`Agreement and FF shall have no obligation to reconcile. The Remittance shall be modified to more closely reflect the Merchant’s actual receipts by multiplying the
`Merchant’s actual receipts by the Purchased Percentage divided by the number of business days in the previous (2) calendar weeks or by other means that can more
`accurately estimate the Merchant’s Future Receipts. Merchant shall provide FF with viewing access to their bank account as well as all information reasonably
`requested byFF to properly calculate the Merchant’s Remittance. At the end of the two (2) calendar weeks the Merchant may request another adjustment pursuant to this
`paragraph or it is agreed that the Merchant’s Remittance shall return to the Remittance as agreed upon on Page 1 of this Agreement.
`1.6
`Financial Condition.
`Merchant and Guarantor(s) (as hereinafter defined and limited) authorize FF and its agents to investigate their financial responsibility and history, and will provide to FF any
`authorizations, bank or financial statements, tax returns, etc., as FF deems necessary in its sole and absolute discretion prior to or at any time after execution of this
`Agreement. A photocopy of this authorization will be deemed as acceptable as an authorization for release of financial and credit information. FF is authorized to update
`such information and financial and credit profiles from time to time as it deems appropriate.
`1.7
`Transactional History.
`Merchant authorizes all of its banks, brokers and processor to provide FF with Merchant’s banking, brokerage and/or processing history to determine qualification
`or continuation in this program and for collections purposes. Merchant shall provide FF with copies of any documents related to Merchant’s card processing
`activity or financial and banking affairs within five days after a request from FF.
`1.8
`Indemnification.
`Merchant and Guarantor(s) jointly and severally indemnify and hold harmless Processor, its officers, directors and shareholders against all losses, damages, claims, liabilities
`and expenses (including reasonable attorney’s fees) incurred by Processor resulting from (a) claims asserted by FF for monies owed to FF from Merchant and
`(b) actions taken by Processor in reliance upon any fraudulent, misleading or deceptive information or instructions provided by FF.
`1.9
`No Liability.
`In no event will FF be liable for any claims asserted by Merchant or Guarantors under any legal theory for lost profits, lost revenues, lost business opportunities,
`exemplary, punitive, special, incidental, indirect or consequential damages, each of which is waived by both Merchant and Guarantor(s). In the event these claims
`are nonetheless raised, Merchant and Guarantors will be jointly liable for all of FF’s attorney’s fees and expenses resulting therefrom.
`1.10
`Reliance on Terms.
`Section 1.1, 1.6, 1.7, 1.8 and 2.5 of this Agreement are agreed to for the benefit of Merchant, FF Processor, and Merchant’s bank and notwithstanding the fact that
`Processor and the bank is not a party of this Agreement, Processor a nd the bank may rely upon their terms and raise them as a defense in any action.
`1.11
`Sale of Receipts.
`Merchant and FF 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 construed as a loan from FF to Merchant. Merchant agrees that the Purchase Price is in exchange for the Receipts pursuant to this Agreement, and that it equals the
`fair market value of such Receipts. FF has purchased and shall own all the Receipts described in this Agreement up to the full Purchased Amount as the Receipts are
`created. Payments made to FF in respect to the full amount of the Receipts shall be conditioned upon Merchant’s sale of products and services, and the payment therefore by
`Merchant’s customers. In no event shall the aggregate of all amounts or any portion thereof be deemed as interest hereunder, and in the event it is found to be interest
`despite the parties hereto specifically representing that it is NOT interest, 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 FF has charged or received interest hereunder in excess of the highest applicable rate, the rate
`in effect hereunder shall automatically be reduced to the maximum rate permitted by applicable law and FF shall promptly refund to Merchant any interest received by
`FF in excess of the maximum lawful rate, it being intended that Merchant not pay or contract to pay, and that FF 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.
`1.12
`Power of Attorney.
`Merchant irrevocably appoints FF as its agent and attorney-in-fact with full authority to take any action or execute any instrument or document to settle all obligations
`due to FF from Processor, or in the case of a violation by Merchant of Section 1or the occurrence of an Event of Default under Section 3 hereof, including without
`limitation (i) to obtain and adjust insurance; (ii) to collect monies due or to become due under or in respect of any of the Collateral; (iii) to receive, endorse and
`collect any checks, notes, drafts, instruments, documents or chattel paper in connection with clause (i) or clause (ii) above; (iv) to sign Merchant’s name on any
`invoice, bill of lading, or assignment directing customers or account debtors to make payment directly to FF; and (v) to contact Merchant’s banks and financial
`institutions using
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`DocuSign Envelope ID: B5C67393-BC82-4EB9-AF6B-AA5E823C7F7C
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`Merchant and Guarantor(s) personal information to verify the existence of an account and obtain account balances (vi) to file any claims or take any action or institute
`any proceeding which FF 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. In connection therewith, all costs, expenses and fees, including legal fees, shall be payable by merchant.
`1.13
`Protections Against Default.
`The following Protections 1 through 8 may be invoked by FF immediately and without notice to Merchant in the event: (a) Merchant takes any action to discourage the
`use of electronic check processing that are settled through Processor, or permits any event to occur that could have an adverse effect on the use, acceptance, or authorization
`of checks or other payments or deposits for the purchase of Merchant’s services and products including but not limited to direct deposit of any checks into a bank account
`without scanning into the FF electronic check processor; (b) Merchant changes its arrangements with Processor or the Bank in any way that is adverse or unacceptable to
`FF; (c) Merchant changes the electronic check processor through which the Receipts are settled from Processor to another electronic check processor, or permits any
`event to occur that could cause diversion of any of Merchant’s check or deposit transactions to another processor; (d) Merchant intentionally interrupts the operation
`of this business transfers, moves, sells, disposes, or otherwise conveys its business and/or assets without (i) the express prior written consent of FF, and (ii) the written
`agreement of any FF or transferee to the assumption of all of Merchant’s obligations under this Agreement pursuant to documentation satisfactory to FF; (e) Merchant
`takes any action, fails to take any action, or offers any incentive—economic or otherwise—the result of which will be to induce any customer or customers to pay
`for Merchant’s services with any means other than payments, checks or deposits that are settled through Processor; (f) Merchant fails to provide FF with copies of
`any documents related to Merchant’s card processing activity of financial and banking affairs within five days after a request from FF, or (g) Merchant breaches any
`terms of this Agreement, including but not limited any of the Events of Default contained in Section 3.1 herein. These protections are in addition to any other
`remedies available to FF at law, in equity or otherwise pursuant to this Agreement.
`Protection 1. The full uncollected Purchased Amount plus all fees (including reasonable attorney’s fees) due under this Agreement and the attached Security Agreement
`become due and payable in full immediately.
`Protection 2. FF may enforce the provisions of the Limited Personal Guaranty of Performance against the Guarantor(s).
`Protection 3. FF may enforce its security interest in the Collateral.
`Protection 4. The entire Purchased Amount and all fee (including reasonable attorney’s fees) shall become immediately payable to FF from Merchant.
`Protection 5. FF may proceed to protect and enforce its right and remedies by lawsuit. In any such lawsuit, if FF recovers a Judgment against Merchant, Merchant shall be
`liable for all of FF’s costs of the lawsuit, including but not limited to all reasonable attorneys’ fees and court costs.
`Protection 6. This Agreement shall be deemed Merchant’s Assignment of Merchant’s Lease of Merchant’s business premises to FF. Upon breach of any provision in this
`Agreement, FF may exercise its rights under this Assignment of Lease without prior Notice to Merchant.
`Protection 7. FF may debit Merchant’s depository accounts wherever situated by means of ACH debit or facsimile signature on a computer-generated check drawn
`on Merchant’s bank account or otherwise for all su ms due to FF.
`1.14
`Protection of Information.
`Merchant and each person signing this Agreement on behalf of Merchant and/or as Owner or Guarantor, in respect of himself or herself personally, authorizes FF
`to disclose information concerning Merchant’s and each Owner’s and each Guarantor’s credit standing (including credit bureau reports that FF obtains) and business
`conduct only to agents, affiliates, subsidiaries, and credit reporting bureaus. Merchant and each Owner and each Guarantor hereby and each waives to the maximum extent
`permitted by law any claim for damages against FF or any of its affiliates relating to any (i)investigation undertaken by or on behalf of FF as permitted by this
`Agreement or (ii) disclosure of information as permitted by this Agreement.
`1.15
`Confidentiality.
`Merchant understands and agrees that the terms and conditions of the products and services offered by FF, including this Agreement and any other FF
`documents (collectively, “Confidential Information”) are proprietary and confidential information of FF. Accordingly, unless disclosure is required by law or
`court order, Merchant shall not disclose Confidential Information of FF to any person other than an attorney, accountant, financial advisor or emplo yee of
`Merchant who needs to know such information for the purpose of advising Merchant (“Advisor”), provided such Advisor uses such information solely for the
`purpose of advising Merchant and first agrees in writing to be bound by the terms of this section. A breach hereof entitles FF 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.
`1.16
`Publicity.
`Merchant and each of Merchant’s Owners and all Guarantors hereto all hereby authorizes FF to use its, h is or her name in listings of clients and in advertising
`and marketing materials.
`1.17
`D/B/A’s.
`Merchant hereby acknowledges and agrees that FF may be using “doing business as” or “d/b/a” names in connection with various matters relating to the
`transaction between FF and Merchant, including the filing of UCC-1 financing statements and other notices or filings.
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`REPRESENTATIONS,WARRANTIESANDCOVENANTS
`2
`Merchant represents warrants and covenants that, as of this date and during the term of this Agreement:
`Financial Condition and Financial Information.
`2.1
`Merchant’s and Guarantors’ bank and financial statements, copies of which have been furnished to FF, and future statements which will be furnished hereafter at
`the discretion of FF, fairly represent the financial condition of Merchant at such dates, and since those dates there has been no material adverse changes,
`financial or otherwise, in such condition, operation or ownership of Merchant. Merchant and Guarantors have a continuing, affirmative obligation to advise FF
`of any material adverse change in their financial condition, operation or ownership. FF may request statements at any time durin