Preview
FILED: KINGS COUNTY CLERK 04/12/2021 10:14 AM INDEX NO. 508502/2021
DocuSign Envelope ID: 58D605D9-567B-40CD-86A6-16639C9A4377
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/12/2021
Agreement for the Purchase and Sale of Future Receipts
Merchant Information: ** Please fill in**
Barbara Rockson Eric Lawson Dodoo
Name:________________________________
Brockson@baerickfreight.com
eldodoo@baerickfreight.com
Email:_________________________________
918 851 9280
Business Phone:___________________________
9188519280 214 436 9215
Cell Phone:_______________________________
na
Business Website:__________________________
FILED: KINGS COUNTY CLERK 04/12/2021 10:14 AM INDEX NO. 508502/2021
DocuSign Envelope ID: 58D605D9-567B-40CD-86A6-16639C9A4377
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/12/2021
Agreement for the Purchase and Sale of Future Receipts
Contract ID# :_____________
Sales Partner :_____________
Seller’s Legal Name: Baerick Freight Services LLC D/B/A: Baerick Freight Services
Form of Business Entity: Corporation ✔ Limited Liability Company Partnership Limited Partnership
Limited Liability Partnership Sole Proprietorship Other:
Street Address: 9535 Forest Lane Street Ste 214 City: Dallas
State: TX Zip: 75243 County:
Mailing Address: 8811 Teel Parkway Ste 100-5526 City: Frisco State: TX Zip: 75036
Primary Contact Name: Barbara Rockson Title: Owner
Time in Business: .7 Months Federal Tax ID Number: 85-3107445
Purchase Price: $ 5,000.00 Purchased Amount: $ 7,495.00 Specified Percentage %
Risk Assessment Fee $ 300.00 Origination Fee: $ 200.00 (Fees will be deducted from the Purchase Price)
Initial Daily Amount: $ 124.92 (Average Monthly Sales x Specified Percentage / Average Business Days in a Calendar Month)
Account for the Deposit of All Future Receipts: Bank: JP Morgan Chase
Account No: 631682769 ABA No: 111000614
FEES: Seller shall be liable for the following fees, as applicable, in addition to the Purchased Amount of Future Receipts:
Non-Sufficient Funds (NSF) Fee: $35.00 each (Default declared after fourth NSF transaction)
Effective,12/23/2020 Seller, identified above, hereby sells, assigns and transfers to Merchant Advance, LLC located at 1621
Central Ave, Cheyenne, WY 82001 (“Buyer”), without recourse, the Specified Percentage of the proceeds of each future
sale made by Seller (collectively “Future Receipts”) until Seller has received the Purchased Amount. “Future Receipts” includes all
payments made by cash, check, ACH or other electronic transfer, credit card, debit card, bank card, charge card (each such card shall
be referred to herein as a “Payment Card”) or other form of monetary payment in the ordinary course of Seller’s business. As payment
for the Purchased Amount, Buyer will deliver to Seller the Purchase Price, shown above, minus any Origination Fee shown above.
Seller acknowledges that it has no right to repurchase the Purchased Amount from Buyer.
Both parties agree that the obligation of Buyer under this Agreement will not be effective unless and until Buyer has completed its
review of the Seller and has accepted this Agreement by delivering the Purchase Price, minus any Origination Fee. Prior to accepting
this Agreement, Buyer may conduct a processing trial to confirm its access to the Account and the ability to withdraw the Initial Daily
Amount. If the processing trial is not completed to the satisfaction of Buyer, Buyer will refund to Seller all funds that were obtained by
Buyer during the processing trial.
Agreement of Seller: By signing below Seller agrees to the terms and conditions contained in this Agreement, including those terms
and conditions on the following pages, and further agrees that this transaction is for business purposes and not for personal, family, or
household purposes.
Baerick Freight Services LLC
Seller: ____________________________________
OWNER #1
Barbara Rockson
Agreed to by:_______________________________ (Signature) _________________________________
12/23/2020
Owner
Title: _________________________________ Date: _______________
OWNER #2
Eric Lawson Dodoo
Agreed to by:_______________________________ (Signature) _________________________________
Owner 12/23/2020
Title: _________________________________ Date: _______________
.Merchant Advance LLC HCMA1001 1
Initials #1 ______________
Initials #2____________
FILED: KINGS COUNTY CLERK 04/12/2021 10:14 AM INDEX NO. 508502/2021
DocuSign Envelope ID: 58D605D9-567B-40CD-86A6-16639C9A4377
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1. Delivery of Purchased Amount: Seller must deposit all Future Receipts into the single business banking account specified
above, which may not be used for any personal, family or household purposes (the “Account”) and must instruct Seller’s credit card
processor, which must be approved by Buyer (the “Processor”) to deposit all Payment Card receipts of Seller into the Account.
Seller agrees not to change the Account or add an additional Account without the express written consent of Buyer. Seller
authorizes Buyer to debit the Daily Amount from the Account each business day by either ACH or electronic check. Seller will
provide Buyer with all required access codes and agrees not to change them without prior written consent from Buyer. Seller will
provide an appropriate ACH authorization to Buyer. Seller understands that it is
responsible for either ensuring that the Daily
Amount is available in the Account each business day or advising Buyer prior to each daily withdrawal of a shortage of funds.
Otherwise, Seller willbe responsible for any fees incurred by Buyer resulting from a rejected electronic check or ACH debit
attempt, as set forth on Appendix A. Buyer is not responsible for any overdrafts or rejected transactions that may result from
Buyer’s debiting any amount authorized under the terms of this Agreement. Seller understands that the foregoing ACH
authorization is a fundamental condition to induce Buyer to accept the Agreement. Consequently, such authorization is intended to
be irrevocable.
In the event that Seller changes or permits changes to the Account or the ACH authorization approved by the Buyer or adds an
additional bank account, Buyer shall have the right, without waiving any of its rights and remedies and without notice to Seller or
any Guarantor, to notify the new or additional bank of this Agreement and to direct such new or additional bank to remit to the
Buyer all or any portion of the amounts received by such bank. Seller hereby grants to Buyer an irrevocable power of attorney,
which power of attorney shall be coupled with an interest, and hereby appoints the Buyer or any of the representatives of Buyer as
Seller’s attorney in fact, to take any and all action necessary to direct such new or additional bank to remit to Buyer amounts
received by such bank.
2. Seller May Request Changes to the Daily Amount: The initial Daily Amount is intended to represent the Specified Percentage
of Seller’s daily Future Receipts. For as long as no Event of Default has occurred, once each calendar month, Seller may request
that Buyer adjust the Daily Amount to more closely reflect the Seller’s actual Future Receipts times the Specified Percentage.
Seller agrees to provide Buyer any information requested by Buyer to assist in this reconciliation. No more often than once a
month, Buyer may adjust the Daily Amount on a going-forward basis to more closely reflect the Seller’s actual Future Receipts
times the Specified Percentage. Buyer willgive Seller notice five business days priorto any such adjustment. After each
adjustment made pursuant to this paragraph, the new dollar amount shall be deemed the Daily Amount until any subsequent
adjustment.
3. Daily Amount Upon Default. Upon the occurrence of an Event of Default, the Daily Amount shall equal 100% of all Future
Receipts.
4. Sale of Future Receipts (THIS IS NOT A LOAN): Seller is selling a portion of a future revenue stream to Buyer at a discount, not
borrowing money from Buyer. There is no interest rate or payment schedule and no time period during which the Purchased
Amount must be collected by Buyer. If Future Receipts are remitted more slowly than Buyer may have anticipated or projected
because Seller’s business has slowed down, or if the full Purchased Amount is never remitted because Seller’s business went
bankrupt or otherwise ceased operations in the ordinary course of business, and Seller has not breached this Agreement, Seller
would not owe anything to Buyer and would not be in breach of or default under this Agreement. Buyer is buying the Purchased
Amount of Future Receipts knowing the risks that Seller’s business may slow down or fail, and Buyer assumes these risks based
on Seller’s representations, warranties and covenants in this Agreement that are designed to give Buyer a reasonable and fair
opportunity to receive the benefit of its bargain. By this Agreement, Seller transfers to Buyer full and complete ownership of the
Purchased Amount of Future Receipts and Seller retains no legal or equitable interest therein. Seller agrees that it will
treat
Purchase Price and Purchased Amount in a manner consistent with a sale in its accounting records and tax returns. Seller agrees
that Buyer is entitled to audit Seller’s accounting records upon reasonable Notice in order to verify compliance.Seller waives any
rights of privacy, confidentiality or taxpayer privilege in any such litigation or arbitration in which Seller asserts that this transaction
is anything other than a sale of future receipts.
5. Fees and Charges: Other than the Origination Fee, if any, set forth above, Buyer is NOT CHARGING ANY ORIGINATION OR
BROKER FEES to Seller. If Seller is charged another such fee, it is not being charged by Buyer. A list of all fees and charges
applicable under this Agreement is contained in Appendix A.
6. Credit Report and Other Authorizations: Seller and each of the Owners signing above authorize Buyer, its agents and
representatives and any credit reporting agency engaged by Buyer, to (i) investigate any references given or any other statements
or data obtained from or about Seller or any of its Owners for the purpose of this Agreement, (ii) obtain consumer and business
credit reports on the Seller and any of its Owners, and (iii) to contact personal and business references provided by the Seller in
the Application, at any time now or for so long as Seller and/or Owners continue to have any obligation owed to Buyer as a
consequence of this Agreement or for Buyer's ability to determine Seller's eligibility to enter into any future agreement with Buyer.
7. Authorization to Contact Current and Prior Banks: Seller hereby authorizes Buyer to contact any current or prior bank of the
Seller in order to obtain whatever information it may require regarding Seller’s transactions with any such bank. Such information
may include but is not limited to, information necessary to verify the amount of Future Receipts previously processed on behalf of
Seller and any fees that may have been charged by the bank. In addition, Seller authorizes Buyer to contact any current or prior
Merchant Advance LLC HCMA1001 2
Initials #1 ______________
Initials #2____________
FILED: KINGS COUNTY CLERK 04/12/2021 10:14 AM INDEX NO. 508502/2021
DocuSign Envelope ID: 58D605D9-567B-40CD-86A6-16639C9A4377
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/12/2021
bank of the Seller for collections and in order to confirm that Seller is exclusively using the Account identified above, or any other
account approved by Buyer, for the deposit of all business receipts.
8. Right to Cancel: Seller understands that Buyer offers Seller a right to cancel this Agreement at any time within 14 days after
Buyer has delivered the Purchase Price. Seller may exercise this right by notifying Buyer that it is cancelling this Agreement and
returning the Purchase Price to Buyer. For the Seller’s right to cancel to be effective, Buyer must receive both the notice and the
Purchase Price within 14 days after the Buyer has delivered the Purchase Price. Buyer shall retain the Origination Fee, but Seller
shall not be responsible for any other costs if this Agreement is cancelled pursuant to this Section.
9. Financial Information. Seller authorizes Buyer and its agents to investigate its financial responsibility and history, and will provide
to Buyer any authorizations, bank or financial statements, tax returns, etc., as Buyer deems necessary in its sole discretion prior to
or at any time after execution of this Agreement. A photocopy of this authorization will be deemed acceptable as an authorization
for release of financial and credit information. Buyer is authorized to update such information and financial and credit profiles from
time to time as it deems appropriate. Seller waives, to the maximum extent permitted by law, any claim for damages against Buyer
or any of its affiliates relating to any investigation undertaken by or on behalf of Buyer as permitted by this Agreement or disclosure
of information as permitted by this Agreement.
10. Transactional History. Seller authorizes all of its banks and brokers and Payment Card processors to provide Buyer with Seller’s
banking, brokerage and/or processing history to determine qualification or continuation in this program, or for collections upon an
Event of Default.
11. Publicity. Seller hereby authorizes Buyer to use its name in listings of clients and in advertising and marketing materials.
12. Application of Amounts Received by Buyer. Buyer reserves the right to apply amounts received by it under this Agreement to
any fees or other charges due to Buyer from Seller prior to applying such amounts to reduce the amount of any outstanding
Purchased Amount.
13. Representations, Warranties and Covenants of Seller:
13.1. Good Faith, Best Efforts and Due Diligence. Seller will conduct its business in good faith and will use its best efforts to
continue its business at least at its current level, to ensure that Buyer obtains the Purchased Amount.
13.2. Stacking Prohibited. Seller shall not enter into any merchant cash advance or any loan agreement that relates to or
involves its Future Receipts with any party other than Buyer for the duration of this Agreement. Buyer may share information
regarding this Agreement with any third party in order to determine whether Seller is in compliance with this provision.
13.3. Financial Condition and Financial Information. Any bank statements and financial statements of Seller that have been
furnished to Buyer, and future statements that will be furnished to Buyer, fairly represent the financial condition of Seller at
such dates, and Seller will notify Buyer immediately if there are material adverse changes, financial or otherwise, in the
condition or operation of Seller or any change in the ownership of Seller.Buyer may request statements at any time during
the performance of this Agreement and the Seller shall provide them to Buyer within five business days. Furthermore, Seller
represents that all documents, forms and recorded interviews provided to or with Buyer are true, accurate and complete in
all respects, and accurately reflect Seller’s financial condition and results of operations.
Seller further agrees to authorize
the release of any past or future tax returns to Seller.
13.4. Governmental Approvals. Seller is in compliance and shall comply with all laws and has valid permits, authorizations and
licenses to own, operate and lease its properties and to conduct the business in which it is presently engaged and/or will
engage in hereafter.
13.5. Authority to Enter Into This Agreement. Seller and the person(s) signing this Agreement on behalf of Seller, have full
power and authority to incur and perform the obligations under this Agreement, all of which have been duly authorized.
13.6. Change of Name or Location or Sale or Closing of Business. Seller will not conduct Seller’s businesses under any name
other than as disclosed to Buyer or change any of its places of business without prior written consent of Buyer. Seller will
not sell, dispose, transfer or otherwise convey all or substantially all of its business or assets without (i) the express prior
written consent of Buyer, and (ii) the written agreement of any purchaser or transferee assuming all of Seller’s obligations
under this Agreement pursuant to documentation satisfactory to Buyer. Except as disclosed to Buyer in writing, Seller has
no current plans to close itsbusiness either temporarily, whether for renovations, repairs or any other purpose, or
permanently. Seller agrees that until Buyer has received all of the Purchased Amount Seller will not voluntarily close its
business on a temporarily basis for renovations, repairs, or any other purposes. This provision, however, does not prohibit
Seller 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 Seller.Prior to any such closure, Seller will provide Buyer ten business days notice to the extent
practicable.
Merchant Advance LLC HCMA1001 3 Initials #1 ______________
Initials #2____________
FILED: KINGS COUNTY CLERK 04/12/2021 10:14 AM INDEX NO. 508502/2021
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13.7. No Pending or Contemplated Bankruptcy. As of the date Seller executes this Agreement, Seller is not insolvent and
does not contemplate and has not filed any petition for bankruptcy protection under Title 11 of the United States Code and
there has been no involuntary petition brought or pending against Seller. Seller represents that it has not consulted with a
bankruptcy attorney within six months prior to the date of this Agreement. Seller further warrants that it does not anticipate
filing a bankruptcy petition and it does not anticipate that an involuntary petition will be filed against it.
13.8. Seller to Maintain Insurance. Seller will possess and maintain insurance in such amounts and against such risks as are
necessary to protect its business and will provide proof of such insurance to Buyer upon demand.
13.9. Seller to Pay Taxes Promptly. Seller will promptly pay all necessary taxes, including but not limited to employment and
sales and use taxes.
13.10. No Violation of Prior Agreements. Seller's execution and performance of this Agreement will not conflict with any other
agreement, obligation, promise, court order, administrative order or decree, law or regulation to which Seller is subject,
including any agreement the prohibits the sale or pledge of Seller’s future receipts.
13.11. No Diversion of Receipts. Seller will not permit any event to occur that could cause a diversion of any of Seller’s Future
Receipts from the Account to any other entity.
13.12. Seller’s Knowledge and Representation. Seller represents warrants and agrees that it is a sophisticated business entity
familiar with the kind of transaction covered by the Agreement; it was represented by counsel or had full opportunity to
consult with counsel.
14. Rights of Buyer:
14.1. Financing Statements Financing Statements and Security Interest. Seller grants Buyer a security interest in all of Seller’s
present and future accounts, chattel paper, deposit accounts, personal property, assets and fixtures, general intangibles,
instruments, equipment, inventory wherever located, and proceeds now or hereafter owned or acquired by Seller. Seller
authorizes Buyer to file one or more UCC-1 forms consistent with the Uniform Commercial Code (“UCC”) in order to give
notice of this security interest and that the Purchased Amount of Future Receipts is the sole property of Buyer. The UCC
filing may state that such sale is intended to be a sale and not an assignment for security and may state that the Seller is
prohibited from obtaining any financing that impairs the value of the Future Receipts or Buyer’s right to collect same. Seller
authorizes Buyer to debit the Account for all costs incurred by Buyer associated with the filing, amendment or termination of
any UCC filings.
14.2. Right of Access. In order to ensure that Seller is complying with the terms of this Agreement, Buyer shall have the right to
(i) enter, without notice,
the premises of Seller’s business for the purpose of inspecting and checking Seller’s transaction
processing terminals to ensure the terminals are properly programmed to submit and or batch Seller’s daily receipts to the
Processor and to ensure that Seller has not violated any other provision of this Agreement, and (ii) Seller shall provide
access to its employees and records and all other items as requested by Buyer, and (iii) have Seller provide information
about its business operations, banking relationships, vendors, landlord and other information to allow Buyer to interview any
relevant parties.
14.3. Phone Recordings and Contact. Seller agrees that any call between Buyer and Seller, and their agents and employees
may be recorded or monitored. Further, Seller agrees that (i) it has an established business relationship with Buyer, its
employees and agents and that Seller may be contacted from time-to-time regarding this or other business transactions; (ii)
that such communications and contacts are not unsolicited or inconvenient; and (iii) that any such contact may be made at
any phone number, emails address, or facsimile number given to Buyer by the Seller, its agents or employees, including
cellular telephones.
15. Events of Default. The occurrence of any of the following events shall constitute an “Event of Default”: (a) Seller interferes with
Buyer’s right to collect the Daily Amount; (b) Seller violates any term or covenant in this Agreement; (c) Seller uses multiple
depository accounts without the prior written consent of Buyer; (d) Seller changes itsdepositing account or itspayment card
processor without the prior written consent of Buyer; (e) Seller defaults under any of the terms, covenants and conditions of any
other agreement with Buyer, or (f) Seller fails to provide timely notice to Buyer such that in any given calendar month there are four
or more ACH transactions attempted by Buyer are rejected by Seller’s bank.
16. Remedies. If any Event of Default occurs, Buyer may proceed to protect and enforce its rights including, but not limited to, the
following:
Merchant Advance LLC HCMA1001 4 Initials #1 ______________
Initials #2____________
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16.1. The Specified Percentage shall equal 100%. The full uncollected Purchased Amount plus all fees and charges (including
legal fees) due under this Agreement will become due and payable in full immediately.
16.2. Buyer may enforce the provisions of the Personal Guaranty of Performance against each Owner.
16.3. Buyer may proceed to protect and enforce its rightsand remedies by arbitration or lawsuit. In any such arbitration or
lawsuit, under which Buyer shall recover Judgment against Seller, Seller shall be liable for all of Buyer’s costs of the lawsuit,
including but not limited to all reasonable attorneys’ fees and court costs.
However, the rights of Buyer under this provision
shall be limited as provided in the arbitration provision set forth below.
16.4. This Agreement shall be deemed Seller’s Assignment of Seller’s Lease of Seller’s business premises to Buyer. Upon an
Event of Default, Buyer may exercise its rights under this Assignment of Lease without prior notice to Seller.
16.5. Buyer may debit Seller’s depository accounts wherever situated by means of ACH debit or facsimile signature on a
computer-generated check drawn on Seller’s bank account or otherwise for all sums due to Buyer.
16.6. Seller shall pay to Buyer all reasonable costs associated with the Event of Default and the enforcement of Buyer’s remedies,
including but not limited to court costs and attorneys’ fees.
16.7. Buyer may exercise and enforce its rights as a secured party under the UCC.
16.8. All rights, powers and remedies of Buyer in connection with this Agreement may be exercised at any time by Buyer after the
occurrence of an Event of Default, are cumulative and not exclusive, and shall be in addition to any other rights, powers or
remedies provided by law or equity.
17. Modifications; Agreements. No modification, amendment, waiver or consent of any provision of this Agreement shall be effective
unless the same shall be in writing and signed by Buyer.
18. Assignment. Buyer may assign, transfer or sell its rights to receive the Purchased Amount or delegate its duties hereunder, either
in whole or in part, with or without prior written notice to Seller.
19. Notices.
19.1. Notices from Buyer to Seller. Buyer may send any notices, disclosures, terms and conditions, other documents, and any
future changes to Seller by regular mail or by e-mail, at Buyer’s option and Seller consents to such electronic delivery.
Notices sent by e-mail are effective when sent. Notices sent by regular mail become effective three days after mailing to
Seller’s address set forth in this Agreement.
19.2. Notices from Seller to Buyer. Seller may send any notices to Buyer by e-mail only upon the prior written consent of Buyer,
which consent may be withheld or revoked at any time in Buyer’s sole discretion. Otherwise, any notices or other
communications from Seller to Buyer must be delivered by certified mail, return receipt requested, to Buyer’s address set
forth in this Agreement. Notices sent to Buyer shall become effective only upon receipt by Buyer.
20. Binding Effect; Governing Law, Venue and Jurisdiction. This Agreement shall be binding upon and inure to the benefit of
Seller, Buyer and their respective successors and assigns, except that Seller shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of Buyer which consent may be withheld in Buyer’s sole discretion. This
Agreement shall be governed by and construed in accordance with the laws of the state of New York, without regards to any
applicable principalsof conflictsof law. Any suit, action or proceeding arising hereunder, or the interpretation, performance or
breach of this Agreement, shall, if Buyer so elects, be instituted in any court sitting in New York, (the “Acceptable Forums”). Seller
agrees that the Acceptable Forums are convenient to it, and submits to the jurisdiction of the Acceptable Forums and waives any
and all objections to jurisdiction or venue. Should such proceeding be initiated in any other forum, Seller waives any right to oppose
any motion or application made by Buyer to transfer such proceeding to an Acceptable Forum.
21. Survival of Representation, etc. All representations, warranties and covenants herein shall survive the execution and delivery of
this Agreement and shall continue in full force until all obligations under this Agreement shall have been satisfied in full.
22. Interpretation. All Parties hereto have reviewed this Agreement with an attorney of their own choosing and have relied only on
their own attorney’s guidance and advice. No construction determinations shall be made against either Party hereto as drafter.
23. Entire Agreement and Severability. This Agreement embodies the entire agreement between Seller and Buyer and supersedes
all prior agreements and understandings relating to the subject matter hereof. In case any of the provisions in this Agreement is
found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of any other provision contained
herein shall not in any way be affected or impaired.
Merchant Advance LLC HCMA1001 5 Initials #1 ______________
Initials #2____________
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24. Facsimile Acceptance. Facsimile signatures hereon, or other electronic means reflecting the party’s signature hereto, shall be
deemed acceptable for all purposes.
25. Confidentiality: The terms and conditions of this Agreement are proprietary and confidential unless required by law. Seller shall
not disclose this information to anyone other than its attorney, accountant or similar service provider and then only to the extent
such person uses the information solely for purpose of advising Seller and first agrees in writing to be bound by the terms of this
Section. A breach entitles Buyer to damages and legal fees as well as temporary restraining order and preliminary injunction
without bond.
26. Monitoring, Recording, and Solicitations.
26.1. Authorization to Contact Seller by Phone. Seller authorizes Buyer, its affiliates, agentsand independent contractors to
contact Seller at any telephone number Seller provides to Buyer or from which Seller places a call to Buyer, or any telephone
number where Buyer believes it may reach Seller, using any means of communication, including but not limited to calls or text
messages to mobile, cellular, wireless or similar devicesor calls or text messages using an automated telephone dialing
system and/or artificial voices or prerecorded messages, even if Seller incurs charges for receiving such communications.
26.2. Authorization to Contact Seller by Other Means. Seller also agree thatBuyer, its agents
affiliates, and independent
contractors, may use any other medium not prohibited by law including, but not limited to, mail, e-mail
and facsimile, to
contact Seller. Seller expressly consents to conduct business by electronic means.
27. JURY WAIVER. THE PARTIES WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY COURT IN ANY SUIT, ACTION OR
PROCEEDING ON ANY MATTER ARISING IN CONNECTION WITH OR IN ANY WAY RELATED TO THE TRANSACTIONS OF
WHICH THIS AGREEMENT IS A PART OR ITS ENFORCEMENT, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW
OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY. THE PARTIES ACKNOWLEDGE THAT EACH
MAKES THIS WAIVER KNOWINGLY, WILLINGLY AND VOLUNTARILY AND WITHOUT DURESS, AND ONLY AFTER
EXTENSIVE CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER WITH THEIR ATTORNEYS.
28. CLASS ACTION WAIVER. THE PARTIES WAIVE ANY RIGHT TO ASSERT ANY CLAIMS AGAINST THE OTHER PARTY AS
A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS
PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY. TO THE EXTENT EITHER
PARTY IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION
AGAINST THE OTHER, THE PARTIES AGREE THAT: (I)THE PREVAILING PARTY SHALL NOT BE ENTITLED TO
RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION
(NOT WITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT); AND (II) THE PARTY WHO INITIATES OR
PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY
RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.
29. ARBITRATION. IF BUYER, SELLER OR ANY GUARANTOR REQUESTS, THE OTHER PARTIES AGREE TO ARBITRATE
ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT. IF BUYER, SELLER OR ANY
GUARANTOR SEEKS TO HAVE A DISPUTE SETTLED BY ARBITRATION, THAT PARTY MUST FIRST SEND TO ALL
OTHER PARTIES, BY CERTIFIED MAIL, A WRITTEN NOTICE OF INTENT TO ARBITRATE. IF BUYER, SELLER OR ANY
GUARANTOR DO NOT REACH AN AGREEMENT TO RESOLVE THE CLAIM WITHIN 30 DAYS AFTER THE NOTICE IS
RECEIVED, BUYER, SELLER OR ANY GUARANTOR MAY COMMENCE AN ARBITRATION PROCEEDING WITH THE
AMERICAN ARBITRATION ASSOCIATION (“AAA”) OR NATIONAL ARBITRATION FORUM (“NAF”). BUYER WILL
PROMPTLY REIMBURSE SELLER OR THE GUARANTOR ANY ARBITRATION FILING FEE, HOWEVER, IN THE EVENT
THAT BOTH SELLER AND THE GUARANTOR MUST PAY FILING FEES, BUYER WILL ONLY REIMBURSE SELLER’S
ARBITRATION FILING FEE AND, EXCEPT AS PROVIDED IN THE NEXT SENTENCE, BUYER WILL PAY ALL
ADMINISTRATION AND ARBITRATOR FEES. IF THE ARBITRATOR FINDS THAT EITHER THE SUBSTANCE OF THE CLAIM
RAISED BY SELLER OR THE GUARANTOR OR THE RELIEF SOUGHT BY SELLER OR THE GUARANTOR IS IMPROPER
OR NOT WARRANTED, AS MEASURED BY THE STANDARDS SET FORTH IN FEDERAL RULE OF PROCEDURE 11(B),
THEN BUYER WILL PAY THESE FEES ONLY IF REQUIRED BY THE AAA OR NAF RULES. SELLER AND THE
GUARANTOR AGREE THAT, BY ENTERING INTO THIS AGREEMENT, THEY ARE WAIVING THE RIGHT TO TRIAL BY
JURY. BUYER, SELLER OR ANY GUARANTOR MAY BRING CLAIMS AGAINST ANY OTHER PARTY ONLY IN THEIR
INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR
REPRESENTATIVE PROCEEDING. FURTHER, BUYER, SELLER AND ANY GUARANTOR AGREE THAT THE ARBITRATOR
MAY NOT CONSOLIDATE PROCEEDINGS FOR MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE
PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISION
IS FOUND UNENFORCEABLE, THEN THE ENTIRETY OF THIS ARBITRATION CLAUSE SHALL BE NULL AND VOID.
Merchant Advance LLC HCMA1001 6 Initials #1 ______________
Initials #2____________
FILED: KINGS COUNTY CLERK 04/12/2021 10:14 AM INDEX NO. 508502/2021
DocuSign Envelope ID: 58D605D9-567B-40CD-86A6-16639C9A4377
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/12/2021
30. RIGHT TO OPT OUT OF ARBITRATION. SELLER AND GUARANTOR(S) MAY OPT OUT OF THIS CLAUSE. TO OPT OUT OF
THIS ARBITRATION CLAUSE, SELLER AND EACH GUARANTOR MUST SEND BUYER A NOTICE THAT THE SELLER AND
EACH GUARANTOR DOES NOT WANT THIS CLAUSE TO APPLY TO THIS AGREEMENT. FOR ANY OPT OUT TO BE
EFFECTIVE, SELLER AND EACH GUARANTOR MUST SEND AN OPT OUT NOTICE TO THE FOLLOWING ADDRESS BY
REGISTERED MAIL, WITHIN 14 DAYS AFTER THE DATE OF THIS AGREEMENT: BUYER – ARBITRATION OPT OUT,
MERCHANT ADVANCE LLC, CENTRAL AVE, CHAYENNE, WY 82001, ATTENTION: ALEX SHEV - FUNDING DIRECTOR.
Merchant Advance LLC HCMA1001 7 Initials #1 ______________
Initials #2____________
FILED: KINGS COUNTY CLERK 04/12/2021 10:14 AM INDEX NO. 508502/2021
DocuSign Envelope ID: 58D605D9-567B-40CD-86A6-16639C9A4377
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/12/2021
PERSONAL GUARANTY OF PERFORMANCE
This Personal Guaranty of Performance (this “Guaranty”) is executed as of 12/23/2020 , by
Barbara Rockson
_____________________________________________________________ (the “Guarantor”), for the benefit of
Merchant Advance, LLC (“Buyer”).
Capitalized terms used herein, but not defined, shall have the meanings assigned to them in the Purchase Agreement (as hereinafter
defined).
RECITALS
A. Pursuant to that Agreement for the Purchase and Sale of Future Receipts (the “Purchase Agreement”), dated of even date
herewith, between Buyer and Baerick Freight Services LLC (“Seller”), Buyer has purchased Future Receipts of Seller.
B. Buyer is not willingto enter into the Purchase Agreement unless Guarantor irrevocably, absolutely and unconditionally
guarantees prompt and complete performance to Buyer of all of the obligations of Seller; and
C. Guarantor will directly benefit from Buyer and Seller entering into the Purchase Agreement.
AGREEMENT
As an inducement to Buyer to purchase the Future Receipts identified in the Purchase Agreement, and for other good and valuable
consideration, the receipt and legal sufficiency of which are hereby acknowledged, Guarantor does hereby agree as follows:
1. Defined Terms: All capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the
Purchase Agreement.
2. Guaranty of Obligations: Guarantor hereby irrevocably, absolutely and unconditionally guarantees to Buyer prompt and complete
performance of all of Seller’s obligations under the Purchase Agreement.
3. Guarantor’s Other Agreements: Guarantor will not dispose, convey, sell or otherwise transfer, or cause Seller to dispose, convey,
sell or otherwise transfer, any material business assets of Seller without the prior written consent of Buyer, which may be withheld for
any reason, until receipt of the entire Purchased Amount. Guarantor hereby agrees to pay all costs and attorney’s fees incurred by
Buyer in connection with any actions commenced by Buyer to enforce its rights or incurred in any action to defend its performance
under the Purchase Agreement and this Guaranty. This Guaranty is binding upon Guarantor, and Guarantor’s heirs, legal
representatives, successors and assigns. If there is more than one Guarantor, the obligations of the Guarantors hereunder shall be joint
and several. The obligation of Guarantor shall be unconditional and absolute, regardless of the unenforceability of any provision of any
agreement between Seller and Buyer, or the existence of any defense, setoff or counterclaim which Seller may assert. Buyer is hereby
authorized, without notice or demand and without affecting the liability of Guarantor hereunder, to at any time renew or extend Seller’s
obligations under the Purchase Agreement or otherwise modify, amend or change the terms of the Purchase Agreement. Guarantor is
hereby notified that a negative credit report reflecting on his/her credit record may be submitted to a credit reporting agency if the terms
of this Guaranty are not honored by the Guarantor.
4. Waiver; Remedies: No failure on the part of Buyer to exercise, and no delay in exercising, any right under this Guaranty shall
operate as a waiver, nor shall any single or partial exercise of any right under this Guaranty preclude any other or further exercise of
any other right.The remedies provided in this Guaranty are cumulative and not exclusive of any remedies provided by law or equity. In
the event that Seller fails to perform any obligation under the Purchase Agreement, Buyer may enforce its rights under this Guaranty
without first seeking to obtain either performance or payment for such default from Seller or any other guarantor.
5. Acknowledgment of Purchase: Guarantor acknowledges and agrees that the Purchase Price paid by Buyer to Seller in exchange
for the Purchased Amount isa purchase of the Purchased Amount and is not intended to be treated as a loan or financial
accommodation from Buyer to Seller.