Preview
FILED: NASSAU COUNTY CLERK 08/18/2023 09:12 AM INDEX NO. 613258/2023
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/18/2023
EXHIBIT A
EXHIBIT A
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Fora Financial
Advance, LLC
A memberof ForaFinanciafN
Purchase and Sale of Future Receivables Agreement (Revenue Advance)
Fora Financial Advance, LLC (together with its successors and/or assigns, the "Purchaser") hereby purchases from
the merchant set forth above (the "Seller"), a percentage, as specified below (the "Purchased Percentage"), of the
proceeds of each future sale by Seller whether the proceeds are paid by cash, check, ACH and other electronic
transfers, credit card, debit card, bank card, charge card (each such card shall be referred to herein as a "Credit
Card") and/or other means (collectively "Future Sale Proceeds") until Purchaser has received the amount specified
below (the "Purchased Amount") for the purchase price ("Purchase Price") set forth below:
Seller: SWAN LIMOUSINES & CHARTERS LLC dba SWAN
Limousines & Charters
Purchaser: Fora Financial Advance, LLC
Purchase Price: 112,000.00
Purchase
11.50 %%
Percentage:
Purchased
138,880.00
Amount:
Remittance
677.47
Amount:
Remittance
business day
Frequency:
Disbursement
$109,200.00 (Purchase Price Less Processing Fee)
Amount:
Fees:
Processing Fee: $2,800.00
Wire Transfer
$50.00
Fee*:
Insufficient Funds
$35.00
Fee:
*lf you elect to receive your funds via wire transfer, a separate fee may be deducted directly from your bank
account in the amount indicated above.
There is no interest rate or payment schedule and no time period during which the Purchased Amount must be collected by Purchaser. Seller
going bankrupt or going out of business, in and of itself, does not constitute a breach of this Agreement. Purchaser is entering into this
Agreement knowing the risks that Seller's business may slow down or fall, and Purchaser assumes these risks based on Seller's
representations, warranties and covenants in this Agreement, which are designed to give Purchaser a reasonable and fair opportunity to
receive the benefit of its bargain.
Seller's Information
DBA: SWAN Limousines & Charters
Legal Entity: Limited Liability Company (LLC)
Business Legal Name: SWAN LIMOUSINES & CHARTERS LLC
Address of Business Location:
City State, Zip:
Business Phone:
Fax:
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Federal State # (Tax ID):
Mobile #:
Website:
E-MAIL
Bank:
Account #:
NOTICE OF CONSENT TO ELECTRONIC COMMUNICATIONS: Seller hereby consents and authorizes Purchaser and its affiliates
to contact Seller at any telephone number or email address Seller provides, using any means of communication associated with the
telephone number or email address, including, but not limited to, text messages via an automatic telephone dialing system. All
automated communications systems will have an opt-out procedure in adherence to applicable law.
To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to
obtain, verify, and record information that identifies every customer. What this means to you: At the time of application and during our
relationship, we will request your name, address, date of birth, and other information that will allow us to identify you. We may also ask
to see your driver's license or other identifying documents.
Purchase and Sale of Future Receivables Agreement (Revenue Advance)
1. TERMS AND CONDITIONS OF PURCHASE AND SALE OF FUTURE SALE PROCEEDS
Section 1.1 (a) In exchange for the foregoing, Seller hereby agrees (i) to deposit all Future Sale Proceeds into the
Bank Account(s) identified in Exhibit A attached hereto ("the Bank Account") (ii) to identify for Purchaser in Exhibit A
all other existing Bank Accounts and to provide updated information regarding future Bank Accounts maintained or
used by Seller; (iii) not to deposit any funds into the Bank Account other than Future Sale Proceeds, or, if any such
deposits are made, to notify Seller as soon as practicable; (iv) to enter into a Credit Card processing agreement
Processor,"
reasonably acceptable to and approved by the Purchaser with a Credit Card Processor (the "Credit Card
who shall serve as Seller's sole Credit Card Processor), in order to obtain Credit Card processing services, and
instruct the Credit Card Processor to deposit all Credit Card receipts of Seller into the Bank Account. At Seller's
request, Purchaser may review any Credit Card processing agreement that Seller has entered into before the date of
this Agreement, and Purchaser may approve any Credit Card processing agreement at Purchaser's sole discretion.
The obligations of Purchaser under this Agreement will not be effective unless and until Purchaser has completed its
review of the Seller and has accepted this Agreement by delivering the Purchase Price.
(b) Seller shall maintain the Bank Account until all obligations are satisfied under this Agreement. Additionally, Seller
will ensure that all funds arising from Future Sale Proceeds are deposited in, or otherwise credited to, the Bank
Account.
(c) Seller and Purchaser acknowledge and agree that the Purchase Price paid by Purchaser in exchange for
the Purchased Amount of Future Sale Proceeds is a purchase of the Purchased Amount and is not intended
to be, nor shall it be construed as, a loan from Purchaser to Seller. Each Future Sale Proceeds purchased by
Purchaser hereunder represents a bona fide sale by Seller to a customer. Future Sale Proceeds purchased
by Purchaser shall be owned by Seller free and clear of all encumbrances.
(d) There is no interest rate or payment schedule and no time period during which the Purchased Amount
must be collected by Purchaser. Seller going bankrupt or going out of business, in and of itself, does not
constitute a breach of this Agreement. Purchaser is entering into this Agreement knowing the risks that
Seller's business may slow down or fail, and Purchaser assumes these risks based on Seller's
representations, warranties and covenants in this Agreement, which are designed to give Purchaser a
reasonable and fair opportunity to receive the benefit of its bargain.
Section 1.2 Seller authorizes Purchaser and its agents to initiate electronicchecks or ACH transfers in amounts as
specified in Section the bank holding the Bank Account (the "Bank") and all applicable third parties
1.3 and authorizes
to provide to Purchaser and its agents all information necessary to permit them to determine the amount to be
delivered to Purchaser and initiate such electronic check or ACH transfers. Fora will debit the Remittance Amount
Frequency. If the Remittance - Friday), and a scheduled
according to the Remittance Frequency is daily (Monday
debit would occur on a day on which the bank was not open to process ACH transactions or if the bank was unable to
process ACH transactions due to a disruption of the ACH payment network, Purchaser will debit the Bank Account for
an amount equal to the sum of; (i) the Remittance Amount due on that day, plus (ii) the Remittance Amount due on
the preceding day when the bank was not open or could not process ACH transactions. If the Remittance Frequency
is weekly, Purchaser may change the Remittance Frequency to daily if Seller's weekly remittance is rejected for
insufficient funds two or more times during the course of this Agreement.
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Section 1.3 Changes to the Remittance Amount (IMPORTANT PROTECTION FOR SELLER).
(a) The Initial Remittance Amount is intended to represent the Purchased Percentage of Seller's Future Sale
Proceeds. Once each calendar month, either Purchaser or Seller may request a reconciliation to adjust the
Remittance Amount to more closely reflect Seller's actual Future Sale Proceeds times the Purchased Percentage (a
"Reconciliation").
i.Request from Seller: To request a Reconciliation call (855) 326-8523 or e-mail
CustomerService@ForaFinancial.com.
ii. Request from Purchaser: Purchaser may request a Reconciliation by first class mail sent to Seller's Business
Address or email address shown in this Agreement, unless Seller notifies Purchaser of an alternative mail or email
address.
(b) Seller agrees to provide Purchaser any information requested by Purchaser to assist in a Reconciliation
("Reconciliation Information") within five days after a request. Within five days after Purchaser's reasonable
verification of the Reconciliation Information, Purchaser shall adjust the Remittance Amount on a going-forward basis
to more closely reflect the Seller's actual Future Sales Proceeds times the Purchased Percentage. Purchaser shall
notify Seller prior to any such adjustment. After each adjustment made pursuant to this paragraph, the new dollar
amount shall be deemed the Remittance Amount until any later adjustment.
days'
(c) If Seller fails to timely provide Reconciliation Information after 5 notice to Seller, Purchaser may adjust the
Remittance Amount to the Initial Remittance Amount until any later adjustment.
Section 1.4 If at any time Seller informs Purchaser or Purchaser leams that a deposit has been made into the Bank
Account that represents something other than Future Sale Proceeds, and Purchaser has removed the Purchased
Percentage from such deposit, Purchaser shall either, at its option, retum such amount to the Bank Deposit or deduct
such amount from its next withdrawal of the Purchased Percentage of Future Sale Proceeds.
Section 1.5 Seller will pay Purchaser a processing fee as stated above at the time Seller signs this Agreement, or
Purchaser may deduct the processing fee from the Purchase Price.
Section 1.6
"accounts"
(a) The Future Sale Proceeds sold by Seller to Purchaser pursuant to this Agreement are or
intangibles"
"payment as those terms are defined in the Uniform Commercial Code as in effect in the state in
which the Seller is located
(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 Sale Proceeds free and clear of
any liens and encumbrances, from Seller to Purchaser. To the extent the Future Sale Proceeds are
"accounts" intangibles"
or "payment then (i) the sale of the Future Sale Proceeds creates a security interest
agreement"
as defined in the UCC; (ii) this Agreement constitutes a "security under the UCC; and (iii)
Purchaser has all the rights
of a secured party under the UCC with respect to such Future Sale Proceeds.
Seller further that, with or without
agrees an Event of Default, Purchaser may notify account debtors, or other
persons obligated on the Future Sale Proceeds, or holding the Future Sale Proceeds, of Seller's sale of the
Future Sale Proceeds and may instruct them to make payment or otherwise render performance to or for the
benefit of Purchaser.
(b) Seller authorizes Purchaser to file one or more UCC-1 forms consistent with the UCC to give notice that
the Purchased Amount of Future Sale Proceeds is the sole property of Purchaser. 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 Sale Proceeds or Purchaser's
right to collectsame.
Section 1.7 Seller may cancel this transaction at any time within three (3) business days after Purchaser forwards any
or all of the Purchase Price to Seller. However, in order to cancel the transaction, Seller must retum to Purchaser the
entire amount of the Purchase Price received by Seller within that same three (3) day period. Notwithstanding the
foregoing, the Processing Fee and Wire Fee(s) (if any) are non-cancellable and nonrefundable.
2. RECE1VABLES
Section 2.1 As providedherein, the Purchased Percentage (as specified on Page 1) of each Future Sale
Proceeds shall
be collected by Purchaser from electronic check or ACH transfers initiated by Purchaser or
Its agents from the Bank Account. In the event that Seller changes or permits the change of the Bank
Account or the Credit Card Processor or adds an additional Bank Account or Credit Card Processor,
Purchaser shall have the right, without waiving any of its other rights and remedies hereunder and without
notice to Seller, to notify the new or additional Bank or Credit Card Processor of the sale of Future Sale
Proceeds hereunder and to collect from such new or additional Bank or Credit Card Processor all or any
portion of the amounts received by such Bank or Credit Card Processor. Seller, by execution of this
Agreement, hereby grants to Purchaser an irrevocable Power of Attorney, which Power of Attorney shall be
coupled with an interest, and hereby appoints Purchaser or any of Purchaser's representatives as Seller's
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Attorney-in-Fact, to take any and all action necessary to direct such new or additional Bank or Credit Card
Processor to deliver the Future Sale Proceeds to Purchaser as contemplated by this Section 2.
Section 2.2 This Agreement shall be in full force and effect until such time as the Purchased Amount of
Future Sale Proceeds has been received by Purchaser from Seller.
3. STATEMENTS AND REPORTS
Section 3.1 Seller acknowledges and agrees that in connection with the execution of this Agreement an investigative
or consumer report may be made by Purchaser. Accordingly, Seller authorizes Purchaser and its agents and
representatives and any and all credit reporting agency employed or retained by Purchaser to investigate any
references given or any other statements of data obtained from or about Seller for the purpose of this Agreement and
to order, receive and review credit reports at any time now or in the future on Seller.
4. ACH AUTHORIZATION AND CREDIT CARD PROCESSING AGREEMENT
Section 4.1 Simultaneously with the execution hereof, Seller authorizes Purchaser and its agents to initiate electronic
check or ACH transfers equal to the Purchased Percentage of all Future Sale Proceeds of Seller which authorization
shall continue until Purchaser has received an amount equal to the Purchased Amount and all fees and charges
(including legal fees) due under this Agreement or Seller's obligations under this Agreement are otherwise terminated
pursuant to Section 1.1(d). Seller further authorizes the Bank and its Credit Card Processor and all third parties (if
applicable) to provide to Purchaser and its agents all information reasonably necessary to permit Purchaser to
ascertain the amount to be delivered to Purchaser and initiate such electronic check or ACH transfers from the Bank
Account. This authorization
shall only be revoked with the prior written consent of Purchaser. Seller agrees to pay an
insufficient funds fee as stated above if any electronic check or ACH transfer is rejected or dishonored.
Additionally, the Bank Account may not be closed and Seller's agreement with the Credit Card Processor cannot be
amended or terminated without the prior written consent of Purchaser. In the event that Purchaser determines, in its
sole discretion, that the Bank or the authorized Credit Card Processor utilized by Seller is no longer acceptable,
Seller shall, upon receipt of written notice from Purchaser, have five (5) business days to terminate its relationship
with the Bank or its Credit Card Processor and to open a new Bank Account or enter into a similar Processing
Agreement with a new bank or Credit Card Processor. Seller agrees to execute any and all documents and/or
agreement(s) in order to satisfy the foregoing.
Section 4.2 Purchaser is neither responsible nor shall it be liable for any actions undertaken by the Bank or the
Seller's Credit Card Processor which are not contemplated or authorized by this Agreement or the Processing
Agreement to be entered into by and between Seller and the Credit Card Processor. Seller, by execution of this
Agreement, hereby agrees to indemnify and hold Purchaser harmless from any and all actions of the Bank or the
Credit Card Processor.
Section 4.3 Purchaserand Seller understand that the Bank and the Credit Card Processor may charge a fee or
commission to Seller for processing electronic checks, ACH transfers and receipts representing Future Sale
Proceeds. Both parties further understand that the amounts due to Purchaser hereunder shall be based solely upon
the net amount due to Seller from the Future Sale Proceeds after deducting the Bank and Credit Card Processor's
fee or commission from the Future Sale Proceeds.
Section 4.4 During the entire time period that this Agreement shall be in force and effect, Seller hereby authorizes
Purchaser to contact any bank or Credit Card Processor used by Seller (current or prior) in order to obtain whatever
information Purchaser deems it may require regarding Seller's transactions with any such bank or Credit Card
Processor. Such information shall include, but is not limited to, information Purchaser deems necessary to verify the
amount of Future Sale Proceeds previously received or processed on behalf of Seller and any and all fees which may
have been charged to Seller by the bank or Credit Card Processor. Seller further authorizes Purchaser to contact any
bank or Credit Card Processor of Seller (current or prior) in order to confirm that Seller is exclusively using the Bank
Account and the Credit Card Processor.
5. BINDING ACCEPTANCE
Section 5.1 Upon execution hereof, each of the parties hereto shall be obligated hereunder and shall be subject to all
of the terms and conditions stated herein ("Agreement"). The person executing this Agreement on behalf of Seller
warrants and represents that he/ she is authorized to bind Seller to all of the terms and conditions set forth in this
Agreement and that all of the information provided herein is true and accurate in all respects at the time the
information was provided. Purchaser's payment of the Purchase Price shall be deemed Purchaser's acceptance of
this Agreement, notwithstanding Purchaser's failure to execute this Agreement.
6. EVENTS OF DEFAULT, PURCHASER'S RIGHTS UPON DEFAULT, SELLER'S REPRESENTATIONS AND
WARRANTIES
Section 6.1 Subject to applicable law, Purchaser may declare Seller to be in default under this Agreement if any one
or more of the following events occurs and is continuing (each an "Event of Default"):
(a) Seller fails to maintain the Bank Accounts or open a new bank account to deposit Future Sale Proceeds without
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first obtaining Purchaser's consent;
(b) Seller fails to provide copies of all documents and requested information related to Seller's financial or banking
affairs within five (5) days after a request by Purchaser;
((c) Seller uses any portion of the Purchase Price for personal, family or household purposes or to fund a dividend or
other distribution to Business owners;
((d) Seller breaches any representation, warranty, agreement, promise or covenant set forth in this Agreement, or
Seller or any of Seller's employees or agents provide Purchaser with any false or misleadinginformation;
((e) Seller makes any act or omission for the purpose of interfering with or circumventing, the remittance to Purchaser
of any amount owed under this Agreement, including, but not limited to: (i) conducting business under an alternative
name; (ii) depositing Future Sale Proceeds into any bank accounts other than the Bank Account; (iii) encouraging
customers to make payments by cash that Seller fails to deposit into the Bank Account; or (iv) manipulating the use
and form of business entities for the purpose of avoiding Seller's obligations under this Agreement;
(f) Seller fails to permit Purchaser or its agent to conduct a site inspection of Seller's business at any reasonable time
during the of this Agreement;
(g) Without Purchaser's prior express written consent, Seller enters into any credit, cash advance or other financing
arrangement requiring daily or weekly payments or remittances. Purchaser may share information regarding this
Agreement with any third party in order to determine whether Seller is in compliance with this provision;
(h) Without Purchaser's prior express written consent, Seller sells any of Seller's assets outside of the ordinary
course of business;
((i) Without Purchaser's prior express written consent, Seller sells any of Seller's Future Sale Proceeds while Seller
owes any amount under this Agreement;
(j) Without Purchaser's prior express written consent, Seller undertakes or permits a change of control of Seller's
business;
(k) Seller defaults on any other agreement that Seller has with Purchaser or any of its affiliates.
Section 6.2 Purchaser's Rights Upon any Event of Default:
(a) All amounts of the Purchased Amount that have not yet been delivered to Purchaser and any assessed fees shall
be immediately due and payable, including all Receivables or Future Sale Proceeds, untii the entire balance, fees
and deficiencies are paid in full;
(b) The Purchased Percentage will equal 100% of Future Sale Proceeds;
(c) Purchaser may commence an action against Seller and Seller's Business
to collect all amounts owed in
connection with this Agreement;
out-
(d) Purchaser may charge and recover from Seller the additional fees, including if applicable, all of Purchaser's
attorneys'
of-pocket costs and expenses, including reasonable fees, arbitration costs, and/or court costs incurred by
Purchaser in connection with the defense, protection or enforcement of its rights under this Agreement (including,
without limitation, in connection with any bankruptcy proceeding) and any other fees that may be due and owing
(collectively, "Costs of Collection");
(e) Purchaser may withdraw funds from any of Seller's Bank Accounts by ACH debit, up to the amount due following
default as provided in Section 6.2(a) (including the fees as set forth in this Agreement and any Costs of Collection);
(f) Purchaser may exercise any and all rights or remedies available to a secured creditor under Article 9 of the
Uniform Commercial Code or analogous state laws. Subject to arbitration as provided in Section 21, all rights
available to Purchaser are cumulative and not exclusive of any other right or remedy available to Purchaser in law or
equity.
Section 6.3 Seller and any individuai signing this Agreement as a Guarantor represents and warrants to Purchaser,
as of the date hereof and, unless expressly stated otherwise, each day the Purchased Amount remains undelivered
and any assessed fees remain unpaid, as follows:
(a) The Future Sale Proceeds are not subject to any claims, charges, liens, restrictions, encumbrances or security
interest of any nature whatsoever not disclosed to Purchaser prior to executing this Agreement;
(b) As of the date the Purchase Price is paid to Seller, Seller and Seller's business are not the subject of a bankruptcy
or reorganization proceeding that has not been discharged or dismissed, do not have a plan to make a bankruptcy
filing and have not met with a bankruptcy attorney within the past six (6) months;
(c) Seller acknowledges that the information (financial and other) provided by Seller has been relied upon by
Purchaser in connection with its decision to purchase the Future Sale Proceeds. All information that Seller has
provided to Purchaser is true, correct and accurately reflects Seller's financial condition and business operations at
the time the information is provided;
(d) Seller has all required permits, licenses, approval, consents and authorizations necessary to conduct its business;
(e) Seller and Seller's business are in compliance with all laws, regulations and requirements that affect its business;
(f) Seller and each Guarantor has full power and authority to enter into and perform its obligations under this
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Agreement;
(g) Seller's Business has the legal right and ability to execute this Agreement and perform all of its obligations under
this Agreement without violating any other agreement, obligation, promise, court order, administrative order or
decree, law or regulation to which it is subject;
(h) Seller's Business is duly qualified, licensed and in good standing in each state in which it is doing business;
(i) Seller's Business's papers and all amendments thereto have been duly filed and are in proper order, and any
capital stock, member interest or other equity issued and outstanding was and is properly issued;
(j) Seller's Business's books and records are accurate and up-to-date and accessible to Purchaser;
(k) Seller's Business's legal name is exactly as shown on this Agreement;
(1) All of the Bank Accounts are maintained at U.S. financial institutions and all of the Bank Accounts were established
and are used solely for business purposes and not for personal, family or household purposes.
(m) Seller understands that the Bank Account is the sole and exclusive location where it will deposit all Future Sale
Proceeds and that the services of the Credit Card Processor are the sole and exclusive means by which Seller shall
process its Credit Card transaction(s).
(n) Seller shall endeavor to continue to conduct consistent with past practice and shall comply with all of
its business
the terms and conditions of its deposit account agreement
with the Bank and its Processing Agreement with the
Credit Card Processor. As of the date the Purchase Price is paid to Seller, Seller has no present intention of closing
its business or ceasing to operate business, either permanently or temporarily, during the twelve (12) month period
after the date hereof and Seller hereby acknowledges that Purchaser shall rely on this representation in its decision
to enter into this Agreement.
7. OTHER REMEDIES
Section 7.1 In the event of any breach or inaccuracy of any representation or warranty made by Seller in this
Agreement or in any certificate or other document delivered by or on behalf of Seller pursuant hereto; or any breach
or default in the performance by Seller of any covenant or agreement contained in this Agreement or in any certificate
or other document delivered by or on behalf of Seller pursuant hereto (any of the foregoing a "Breach"), Purchaser
shall be entitled to all remedies available hereunder, under Article 9 of the Uniform Commercial Code or other
applicable law, subject to arbitration as provided in Section 21.
Section 7.2 In the event that Purchaser cannot access the Bank Account because of a Breach, Purchaser will be
entitled to charge Seller an estimated daily remittance, plus a fee of up to $500 for each day Purchaser does not have
access to the Bank Account.
Section 7.3 In the event that Seller breaches any of the covenants in Section 6, Seller agrees that Purchaser will be
entitled to, among other things, damages equal to the amount by which the cash attributable to the Purchased
Amount of Future Sale Proceeds exceeds the amount of cash recei ved from the Future Sale Proceeds that have
previously been received by the Purchaser under this Agreement.
Section 7.4 Seller hereby agrees that Purchaser may automatically debit any such damages from any of Seller's
Bank Accounts via ACH, electronic check or wire transfer, and/or may notify the Credit Card Processor to remit to
Purchaser any and all amounts received by the Credit Card Processor up to the amount due following default as
provided in Section 6.2(a). In addition, and to the extent not prohibited by applicable law and any agreements
between Seller's Credit Card Processor and the applicable Credit Card association, Purchaser and Seller's Credit
file"
Card Processor shall be authorized to place Seller on any "terminated merchant list with any applicable Credit
Card association in the event of a breach by Seller of Section 6 hereof. Further, Purchaser shall be entitled to collect
all Indemnifiedamounts from Seller in accordance with Section 14 hereof.
Section 7.5 No remedy of the parties hereunder shall be exclusive of any other remedy herein or provided by law, but
each shall be cumulative and in addition to each and every other remedy, subject to arbitration as provided in Section
21. Waiver of a default shall not be a waiver of any other or subsequent default.
8. NO RIGHT TO REPURCHASE
Seller acknowledges that it has no right to repurchase the Future Sale Proceeds from Purchaser.
9. NOTICES
Except for Reconciliation requests as provided in Section 1.3, all notices which may be given under any provisions of
this Agreement shall be in writing and deemed to have been duly given when served personally or mailed by an
express mail or courier service first class mail, postage prepaid and properly addressed to the parties at their
addresses written on Page 1 or to such other address as each of the parties may designate in writing to the other
parties in the manner provided in this Section 9, together with copies as follows:
In case of Notice to Purchaser:
inancial Advance, LLC
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Attn: Legal Department
Notices to Seller may be sent to Seller via e-mail to any e-mail address provided by Seller or by first class mail to the
Business Address provided, unless Seller notifies Purchaser of an altemative address in writing. Seller must provide
Purchaser with updated contact information on an ongoing basis.
10. MODIFICATIONS; AMENDMENTS
This Agreement is the entire agreement between the parties and supersedes any and all prior oral and/or written
agreements and understanding by and among the parties with respect to the subject matter hereof and this
Agreement may not be changed, modified or terminated orally, and no changes, modifications, termination or
attempted waiver shall be valid unless in writing signed by the parties against whom the same is sought to be
enforced.
11. BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of Seller, Purchaser 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 Purchaser, which consent may be withheld in Purchaser's sole discretion. Purchaser reserves
the right to assign this Agreement with or without prior written notice to Seller.
12. APPLICABLE LAW; CONSTRUCTION
This Agreement shall be construed and enforced in accordance with the internal laws and not the conflict of laws of
the State of New York applicable to agreements made and to be performed in such state. The parties hereto have
participated jointly in the drafting of this Agreement and the documents to be delivered in connection therewith. In the
event of ambiguity or questions of intent or interpretation, this Agreement and the documents to be delivered in
connection therewith shall be construed as if drafted jointly by the parties hereto and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this
Agreement.
13. WAlVER
Waiver by any party of any breach of this Agreement or failure to exercise any right hereunder shall not be deemed to
be a waiver of any other or subsequent default, breach or right. The failure of any party to take action by reason of
any such breach or to exercise any such right shall not deprive such party of the right to take action at any time while
such breach or conditiongiving rise to such right continues.
14. LIMITATION OF LIABILITY AND INDEMNITY
(a) With respect to any claims Seller may have against Purcha ser, Seller's sole remedy will be actual money
damages that shall not exceed the amount of any funds delivered to Purchaser. In no event shall Purchaser be liable
to seller for consequential, incidental, punitive, exemplary, special or indirect damages or losses, or lost profits,
relating to this Agreement, in tort, contract, or otherwise, including any negligence.
(b) Seller shall assume liability for and does hereby agree to indemnify, protect, save and keep harmless Purchaser
and its agents and servants, from and against any and all liabilities, claims, losses, obligations, damages, penalties,
actions, and suits of whatsoever kind and nature imposed on, incurred by or asserted by third parties against
Purchaser or its agents and servants, in any way relating to or growing out of such breach (collectively "Indemnified
Amounts"), including, without limitation, the payment of all costs and expenses of every kind for the enforcement of
attorneys'
Purchaser's rights and remedies hereunder, including fees and costs in any Trial Court or Appellate Court
proceeding, any administrative proceeding, any arbitration or mediation, or any negotiations or consultations in
connection with this Agreement. Such Indemnified Amounts shall bear interest at the highest rate of interest allowed
by applicable law until paid.
15. JURISDICTION AND VENUE
In the event of a controversy arising out of the interpretation, construction, performance or breach of this Agreement,
the parties hereby agree and consent to the sole and exclusive jurisdiction and venue of the federal and state courts
in the State of New York, to resolve any and all claims arising out of, relating to or in connection with this agreement
or the relationship between the parties; and further agree and consent that personal service of process outside of the
State of New York in any such action or proceeding shall be tantamount to service in person within New York State.
16. ENTlRE AGREEMENT
This Agreement, together with any Credit Card processing agreement, contains the entire agreement and
understanding between Seller and Purchaser and supersedes all prior agreements and understandings relating to the
subject matter hereof unless otherwise provided herein.
17. SURVIVAL OF REPRESENTATIONS, ETC.
AII representations, warranties and covenants herein shall survive the execution and delivery of this Agreement and
shall continue in full force and effect until all obligations under this Agreement shall have been satisfied in full and this
Agreement shall have terminated.
FILED: NASSAU COUNTY CLERK 08/18/2023 09:12 AM INDEX NO. 613258/2023
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/18/2023
18. DISCI.AIMER OF WARRANTIES
No representations, warranties or promises pertaining to this Agreement or the transactions contemplated thereby
have been made by or shall be binding on any party hereto except as expressly stated in this Agreement.
19. MERGER; DISCLAIMERS
All understandings and agreements heretofore made between the parties hereto are merged in this Agreement. In the
makingand execution of this Agreement, neither Seller nor Purchaser have relied upon or been induced by any
statements or representations, other than those expressly set forth in this Agreement. Seller and Purchaser have
relied solely on the representations expressly made herein and on such investigations, examinations and inspections,
financial or otherwise, as Seller and Purchaser have respectively chosen to make or have made.
20. JURY TRIAL
PURCHASER, SELLER AND GUARANTOR HEREBY WAlVE TRIAL BY JURY IN ANY COURT PRESIDING OVER
ANY SUIT, ACTION OR PROCEEDING ON ANY MATTER ARISING OUT OF OR IN CONNECTION WITH OR IN
ANY WAY RELATED TO THE TRANSACTIONS OF WHICH THIS AGREEMENT IS A PART OF THE
ENFORCEMENT HEREOF, UNLESS SUCH WAlVER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF
LAW TO BE AGAINST PUBLIC POLICY. PURCHASER, SELLER AND GUARANTOR HERETO ACKNOWLEDGE
THAT EACH MAKES THIS WAlVER KNOWINGLY, WILLINGLY AND VOLUNTARILY AND WITHOUT DURESS.
PURCHASER, SELLER AND GUARANTOR HAVE BEEN GIVEN AMPLE TIME AND OPPORTUNITY TO SEEK
ADVICE OF COUNSEL PRIOR TO THE EXECUTION OF THIS AGREEMENT.
21. ARBITRATION
By signing this Agreement, you agree to the terms of this Arbitration clause ("Clause"). Read the terms of this
Clause carefully, as it substantially affects your rights.
Background. In arbitration, a third party ("Arbitrator") resolves Disputes in a hearing ("hearing"). The Parties waive the right to
go to court. The Parties waive jury trials. The arbitration hearing is private and less formal than court. Arbitrators may limit pre-
"discovery."
hearing fact finding, called The decision of the Arbitrator is final.
Scope. This Clause governs the Purchaser, Seller(s), and any Guarantor(s) (together, the "Parties"), their heirs, suc
Related Content
in Nassau County
Ruling
Saulus, Marijati vs. American Honda Motor Company Inc.
Jul 22, 2024 |
S-CV-0052424
S-CV-0052424 Saulus, Marijati vs. American Honda Motor Company
** NOTE: telephonic appearances are strongly encouraged
NOTE: Defendant has not paid advance jury fees pursuant to CCP § 631.
Trial Date & Length: 11/17/25 6 day Non Jury Trial
(Please contact Master Calendar (916) 408-6061 on the business day
prior to the scheduled trial date to find courtroom availability.)
Civil Trial Conference: 11/07/25
(heard at 8:30 am in Dept. 3)
Mandatory Settlement Conference: 10/31/25
(heard at 8:30am; report to Jury Services)
NO APPEARANCE REQUIRED UNLESS REQUESTED BY PARTY BY 3PM ON
THE THURSDAY PRIOR TO HEARING DATE. REQUESTS FOR
APPEARANCE MUST BE FAXED TO THE CIVIL DEPARTMENT, ATTN: CMC
CLERK AT (916) 408-6275, AND TO ALL OPPOSING ATTORNEYS AND
PARTIES WITHOUT ATTORNEYS BY 3:00 PM THE THURSDAY PRIOR TO
THE CASE MANAGEMENT DATE. SEE LOCAL RULE 20.1.7.
Ruling
MIRALESTE CANYON ESTATES, A CALIFORNIA NON-PROFIT MUTUAL BENEFIT CORPORATION VS ROBERT BELIVEAU
Jul 11, 2024 |
23LBCV02290
Case Number:
23LBCV02290
Hearing Date:
July 11, 2024
Dept:
S27
1.
Complaint
Plaintiff, Miraleste Canyon Estates filed this action against Defendant, Robert Beliveau for breach of CC&Rs, breach of contract, nuisance, and declaratory relief.
Plaintiff filed its complaint on 12/01/23.
Plaintiff filed proof of service of the summons and complaint on Defendant on 4/05/24.
Defendant responded to the complaint by filing a special motion to strike on 5/31/24.
2.
Motion to Strike
a.
Procedural History of Motion
Defendant filed this special motion to strike on 5/31/24, setting it for hearing on 7/11/24.
Plaintiff filed timely opposition papers on 6/27/24.
On the same day, Defense Counsel substituted out of the action and Defendant commenced representing himself in these proceedings.
Defendant has not, to date, filed a reply to Plaintiffs opposition.
Defendant did, however, file additional declarations relating to the motion on 7/05/24, 7/08/24, and 7/09/24.
b.
Law Governing Anti-SLAPP Motions
Pursuant to Navellier v. Sletten, (2002) 29 Cal. 4th 82, 88 89, Section 425.16 posits instead a two-step process for determining whether an action is a SLAPP.
First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (§ 425.16, subd. (b)(1).) A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, subdivision (e) (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043). If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (§ 425.16, subd. (b)(1); see generally Quilon, supra, 29 Cal. 4th at p. 67.)"
Pursuant to Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn., (2006) 136 Cal. App. 4th 464, 476, In order to establish a probability of prevailing on the claim (§ 425.16, subd. (b)(1)), a plaintiff responding to an anti SLAPP motion must state[] and substantiate[] a legally sufficient claim. (Briggs v. Eden Council for Hope & Opportunity[, supra,] 19 Cal.4th 1106, 1123, quoting Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 412.) Put another way, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.
c.
First Prong of Analysis
Defendant has the moving burden to establish the first prong of the analysis, which is that the complaint arises out of protected activity under the statute.
Defendant contends the complaint arises out of his protected free speech and petitioning activity, including emailing public agencies to inform them of Plaintiffs embezzlement, defamation, assault, and extortion.
Plaintiff, in opposition to the motion, contends the free speech and petitioning activity is merely incidental to the complaint, which is primarily based on Defendants verbal and physical intimidation and harassment of Plaintiff.
The Court need not determine, in connection with this motion, whether Defendant established the first prong of the test.
This is so because, as will be discussed below, the Court finds Plaintiff met its burden of showing a probability of success on the merits, and therefore the threshold issue of whether the statute applies need not be determined.
d.
Second Prong, Probability of Success on the Merits
i.
Law re: Second Prong
The probability of prevailing is tested by the same standard governing a motion for summary judgment, nonsuit or directed verdict. I.e., in opposing an anti-SLAPP motion, it is plaintiff's burden to make a prima facie showing of facts that would support a judgment in plaintiff's favor.
Taus v. Loftus (2007) 40 Cal.4th 683, 714.
The court does not weigh credibility or the comparative strength of the evidence. The court considers defendant's evidence only to determine if it defeats plaintiff's showing as a matter of law. Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.
ii.
Plaintiffs Burden of Proof
With respect to its nuisance cause of action, Plaintiff provides evidence that Defendant uses profanity-laced verbal assaults at HOA meetings, up-ended a table during a meeting, and has engaged in violent and conflictive behavior with neighbors, including throwing their childrens toys and intentionally over-watering and leaving puddles in front of units.
Plaintiff also provides evidence that Defendant has sent hundreds of emails to the Association using derogatory and defamatory attacks toward the Board and other Owners, referencing their sexual orientation.
With respect to the breach of CC&Rs and breach of contract causes of action, Plaintiff provides evidence that the parties entered into a 2017 stay away agreement, which Defendant breached through the foregoing conduct.
Plaintiff provides evidence that the CC&Rs prevent nuisances, which Defendants conduct, detailed above, would violate.
Finally, Plaintiff shows that the claim for declaratory relief can succeed on its merits, as it rises and falls with the other claims.
Defendant, in his reply declarations, disputes each of Plaintiffs showings.
This serves, however, to show that there are triable issues of material fact concerning Plaintiffs claims.
As discussed above, the Court does not weigh the evidence at this stage of the proceedings, and decides the matter using a summary judgment standard.
The motion is therefore denied.
e.
Attorneys Fees
Plaintiff seeks to recover its attorneys fees and costs in the amount of $5076.65.
CCP §425.16(c)(1) permits a plaintiff who prevails on an anti-slapp motion to recover fees if and only if the Court finds the motion was frivolous or solely intended to cause unnecessary delay.
Because the action does involve Defendants rights to petition and speak, the Court finds the motion was neither frivolous nor solely intended to cause delay.
The request for fees is denied.
3.
Motion for Sanctions
On 6/12/24, the Court held an OSC re: sanctions for failure to prosecute.
The Court noted Plaintiff had filed a brief in opposition to the OSC, and set the matter for hearing as a motion on 7/11/24.
The Court has read Plaintiffs attorneys 6/11/24 declaration and discharges the OSC re: sanctions, finding Plaintiff has taken steps to prosecute the case such that imposition of sanctions is not appropriate.
Plaintiff is ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at
gdcdepts27@lacourt.org
indicating intention to submit on the tentative as directed by the instructions provided on the court website at
www.lacourt.org
.
If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar
.
If a party submits on the tentative, the partys email must include the case number and must identify the party submitting on the tentative.
If the parties do not submit on the tentative, they should arrange to appear remotely.
Ruling
CREEKSIDE LOGGING VS. APPLIED UNDERWRITERS
Jul 11, 2024 |
CVCV16-0185312
CREEKSIDE LOGGING VS. APPLIED UNDERWRITERS
Case Number: CVCV16-0185312
This matter is on calendar for review regarding status of the case. No status report has been filed. An appearance
is necessary on today’s calendar to provide the Court with an update regarding the status of the injunction
against litigation.
Ruling
GARY R. BELZ, AN INDIVIDUAL, AS REPRESENTATIVE FOR THE BENEFIT OF HIMSELF AND GARY BELZ FAMILY LP, A LIMITED PARTNERSHIP VS CYBER 1 LLC, A LIMITED LIABILITY CORPORATION, ET AL.
Jul 11, 2024 |
23STCV09558
Case Number:
23STCV09558
Hearing Date:
July 11, 2024
Dept:
58
Judge Bruce Iwasaki
Department 58
Hearing Date:
July 11, 2024
Case Name:
Gary R. Belz, et al. v. Cyber 1 LLC, et al.
Case No.:
23STCV09558
Motion:
Motion for Summary Judgment, or in the alternative, Summary Adjudication
Moving Party:
Plaintiff Gary R. Belz, et al.
Responding Party:
Defendants Cyber 1, LLC, Norman Kravetz and Douglas Jacobsen
Tentative Ruling:
Plaintiffs Motion for Summary Judgment is granted.
Based on the undisputed facts, (1) Defendants defaulted on their obligations under the Note and personal guarantees; and (2)there is currently an outstanding balance of $4,883,666.77.
Based on the undisputed facts, Plaintiff is also the owner of the collateral pledged as security for the personal guarantees executed by Defendants Kravetz and Jacobsen.
No triable issues of fact remain as to any of the causes of action alleged in the complaint.
I.
Background
Plaintiff Gary R. Belz, as representative for the benefit of himself and Gary Belz Family LP (collectively, Lender) provided a single credit facility of $4,550,000 evidenced by a Promissory Note (the Note) executed by Defendant Cyber 1 LLC (Cyber 1).
The Note was personally guaranteed by Defendants Norman Kravetz and Douglas Jacobsen.
It is undisputed that Cyber 1 failed to make a principal payment amount on February 1, 2023 in the amount of $450,000.
Cyber 1 has also failed to pay three months of interest on the Note.
Under the Note, Lender is entitled to the entirety of the remaining principal balance, plus interest and attorneys fees.
On April 26, 2023, Lender filed a complaint against Defendants Cyber 1, Kravetz and Jacobsen alleging (1) breach of contract Note; (2) breach of contract Personal Guarantees; and (3) declaratory relief.
II.
Evidentiary Objections
Defendants Objection to paragraph 4 of the Gurvitz Declaration is overruled. (Evid. Code, §§1221 and 1222.)
III.
Defendants Request for Judicial Notice
Defendants RJN of the White House announcement passing HR Bill 2617 on December 29, 2022 and HR Bill 2882 on March 23, 2024 is granted pursuant to Evidence Code section 452, subdivision (c)(official acts of the&executive&departments of the United States&).
IV.
Discussion
A.
Legal Standard
A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Code Civ. Proc., §437c, subd. (p)(1).)
A party is entitled to summary judgment only if it meets its initial burden of showing there are no triable issues of fact and the moving party is entitled to judgment as a matter of law. This is true even if the opposing party fails to file any opposition.
The court's assessment of whether the moving party has carried its burdenand therefore caused a shiftoccurs before the court's evaluation of the opposing party's papers.
Therefore, the burden on the motion does not initially shift as a result of what is, or is not, contained in the opposing papers.
(
Mosley v. Pacific Specialty Insurance Company
(2020) 49 Cal.App.5th 417, 434435 (landlords failure to address issue of whether they were aware of their tenants marijuana growing operation was not grounds to grant summary judgment where moving party failed to satisfy its initial burden as to the issue);
Thatcher v. Lucky Stores, Inc.
(2000) 79 Cal.App.4th 1081, 1086-1087 (court cannot grant summary judgment based merely on lack of opposition; court must first determine if the moving party has satisfied its burden).
In addition, the evidence and affidavits of the moving party are construed strictly, while those of the opponent are liberally read.
(
Government Employees Ins. Co. v. Sup. Ct.
(2000) 79 Cal.App.4th 95, 100.)
All doubts as to the propriety of granting the motion (whether there is any issue of material fact [Code of Civil Procedure] § 437c) are to be resolved in favor of the party opposing the motion (i.e., a denial of summary judgment).
(
Hamburg v. Wal-Mart Stores, Inc.
(2004) 116 Cal.App.4th 497, 502.)
B.
No triable issues of fact remain as to the 1
st
cause of action for breach of contract and 2
nd
cause of action for breach of personal guarantees
Lender moves for summary judgment of its entire complaint.
Lender alleges three causes of action for breach of contract based on three separate agreements:
(1) the Note with Cyber 1; (2) the personal guaranty of the Note executed by Kravetz; and (3) the personal guaranty of the Note executed by Belz.
To prevail on Lenders claims for breach of the Note against Cyber 1 Lender must establish:
(1) existence of the contract; (2) Lender's performance; (3) Cyber 1s breach; and (4) damages.
(
First Commercial Mortgage Co. v. Recce
(2001) 89 Cal.App.4th 731, 745.)
To prevail on Lenders claims for breach of Kravetzs and Jacobsens personal guarantees, Lender need only establish that (1) Kravetz and Jacobsen executed an agreement assuming liability for Cyber 1s debt under the Note; (2) Cyber 1, the principal debtor, defaulted on its underlying obligations; and (3) Kravetz and Jacobsen breached their obligation to pay upon default of the Cyber 1.
(Civ. Code, §2807;
R.P. Richards, Inc. v. Chartered Const. Corp.
(2000) 83 Cal.App.4th 146, 154.)
Lender establishes that Cyber 1 executed a Promissory Note on February 15, 2022 whereby Cyber 1 borrowed $4,550,000 from Lender subject to certain explicit repayment obligations.
(Plaintiffs SSUMF No.1; Belz Dec., ¶2, Ex. 1.)
Lender provided the credit facility as reflected in the Note.
(Belz Dec., ¶2.)
Lender establishes that under the Note, Cyber 1 was required to pay the principal balance of $4,550,000 in four annual installments:
(1) $450,000 on February 1, 2023; (2) $600,000 on February 1, 2024; (3) $1,000,000 on February 1, 2025; and (4) the remaining principal balance on February 1, 2026.
(Plaintiffs SSUMF No. 2; Belz Dec., Ex. 1, ¶1.)
On February 15, 2022, Kravetz and Jacobsen also executed separate personal guarantees guaranteeing the Note.
(Plaintiffs SSUMF Nos. 9 and 10; Belz Dec., Exs. 2 and 3.)
Under their guarantees, Kravetz and Jacobsen promised to pay all principal and interest whenever it became due, including any accelerated balance, upon Cyber 1s failure to pay.
(Plaintiffs SSUMF No. 12; Bezl Dec., Exs. 2-3, Section 1.)
In addition, Kravetz and Jacobsen pledged 7.5% each of their outstanding membership interests in Equity Orchestration LLC as collateral for the guarantees.
(Plaintiffs SSUMF No. 14, Ex. 4, Section 1.)
Cyber 1 failed to make the first payment due under the Note in the amount of $450,000 on or before February 1, 2023.
(Plaintiffs SSUMF No. 16; Belz Dec., ¶4.)
Cyber 1 failed to tender any interest payments from February 2023 to the present.
(Plaintiffs SSUMF No. 18.; Belz Dec., ¶¶6, 9.)
On March 21, 2023, Lender sent notice to Defendants of Cyber 1s breach of its obligation to pay the first installment by February 1, 2023 in the amount of $450,000.
(Plaintiffs SSUMF No. 21, Gurvitz Dec., Ex. 5 (Lenders March 21, 2023 Written Notice).)
On April 3, 2023, Defendants informed Lender that they could not make the required payments and cure their breach.
(Plaintiffs SSUMF No. 22; Gurvitz Dec., ¶4.)
Kravetz and Jacobsen have also refused to tender the collateral as required by the Pledge Agreement in support of their personal guarantees.
(Plaintiffs SSUMF No. 23; Belz Dec., ¶10.)
Plaintiff submits evidence that the full amount of the Note ($4,550,000) is due.
Plaintiff also submits evidence that there is currently $333,666.77 due in interest.
(Plaintiffs SSUMF No. 19; Belz Dec., ¶¶6-9.)
Lender therefore establishes (1) the existence of the Note with Cyber 1 and the personal guarantees with Kravetz and Jacobsen; (2) Lender performance of its obligations by providing Cyber 1 with the $4,550,000 credit facility; (3) Defendants breach of the Note and the personal guarantees based on their failure to make the first payment due on February 1, 2023 and the failure to pay interest within 10 days of receiving notice of their default; and (4) the damages suffered as a result of the breach ($4,550,000 + $333,666.77 = $4,883,66.77).
The burden therefore shifts to Defendants to raise a triable issue of material fact as to the first and second causes of action for breach of contract.
(CCP §437c(p)(1).)
Defendants fail to do so.
Defendants fail to raise a triable issue of fact or establish an affirmative defense to the causes of action.
i.
Defendants defenses based on course of conduct and commercial impracticability fail to raise a triable issue of fact as to the breach element of Plaintiffs first and second causes of action for breach of the Note and breach of the personal guarantees
Defendants concede that they failed to make the first principal payment due under the Note and the personal guarantees or interest payments from February 1, 2023 onward.
(Defendants Responses to SSUMF Nos. 16-23.)
However, they claim they are not in breach due to the parties course of dealing and commercial impracticability.
Course of dealing
.
According to Defendants, in prior dealings involving short term obligations, Plaintiff adjusted these obligations to avoid default.
(Defendants Additional Material Fact (AMF) No. 28, Kravetz Dec., ¶11, Ex. C.)
Defendants contend they made monthly interest payments until January 2023 on the Note and the personal guarantees, which was consistent with the parties prior course of conduct.
(Defendants AMF No. 32; Kravetz Dec., ¶¶38-43; Jacobsen Dec., ¶¶10-15.)
Defendants testify that Lenders current actions of putting them in default and filing this lawsuit contradicts Lenders prior course of conduct.
(Defendants AMF No. 34; Belz Depo., Ex. M, pp. 44, 49-50; Kravetz Dec., ¶¶2-43; Jacobsen Dec., ¶¶2-15.)
Defendants fail to establish that the Note or the personal guarantees were uncertain or indefinite, such that the Court must resort to the parties course of dealing to interpret the contract and determine the obligations thereunder.
Defendants rely on
California Lettuce Growers v. Union Sugar Co.
(1955) 45 Cal.2d 474 as authority for the proposition that they are not in breach of the Note or personal guarantees based on the parties course of dealing in connection with prior transactions that are entirely unrelated to the Note.
California Lettuce Growers
is inapposite.
In
California Lettuce Growers
, the defendant argued it was not obligated under the parties agreement to purchase beets delivered to it by plaintiff, because the parties agreement did not specify a price, time and place of delivery and was therefore unenforceable as illusory and void. (
California Lettuce Growers
,
supra
, 45 Cal.2d at 481.
Here, Defendants do not argue that the Note or the personal guarantees are illusory and void.
The court in
California Lettuce Growers
resorted to the parties and the industrys course of dealing to fill in the unstated terms of price, time and place of delivery.
(
Id.
at 483.)
Defendants provide no authority for their attempt to use course of dealing to amend clear and definite obligations in an agreement.
Commercial impracticability
.
[W]here performance remains possible, the doctrine of impossibility or impracticability excuses performance of a contractual obligation when performance is impossible or extremely impracticable.
A thing is impossible in legal contemplation when it is not practicable; and a thing is impracticable when it can only be done at an excessive and unreasonable cost.
Circumstances that may make performance more difficult or costly than contemplated when the agreement was executed do not constitute impossibility.
A party cannot avoid performance simply because it is more costly than anticipated or results in a loss.
(
KB Salt Lake III, LLC v. Fitness Intern., LLC
(2023) 95 Cal.App.5
th
1032, 1058-1059 (affirming summary judgment of landlords unlawful detainer action for nonpayment of rent; defendant failed to present any evidence that cost of paying rent as obligated under the lease could only have been done at an excessive and unreasonable cost due to COVID shutdown).)
Defendants submit evidence that they suffered a number of financial setbacks due to the COVID shutdown.
(Kravetz Dec., ¶35.)
Such arguments have been rejected.
(
KB Salt Lake III, LLC, supra,
95 Cal.App.5
th
at 1058-1059;
SVAP III Poway Crossings, LLC v. Fitness International, LLC
(2023) 87 Cal.App.5
th
882, 895-896 (impracticability did not apply to excuse lessee from lease payments on health club even though COVID shutdown prevented it from operating the health club, which it maintained was the purpose of the lease).)
Defendants fail to establish based on the evidence presented that repaying the Note in accordance with the schedule could only have been done at excessive and unreasonable cost.
Defendants do not present evidence as to what they would have had to do to satisfy the payments under the Note.
They only state that they suffered severe financial setbacks due to COVID policy.
Defendants fail to establish that they were discharged from their obligations under the Note and the personal guarantees due to impracticability.
ii.
Defendants fail to raise a triable issue as to damages based on offset
Defendants argue there are triable issues of fact as to damages, because they are entitled to an offset for the collateral pledged as security for the Pledge Agreement.
However, Defendants present no evidence as to the value of the collaterala 15% membership interest in Equity Orchestration LLCnor may the Court assume that the value of such an interest is greater than zero.
Defendants therefore fail to raise a triable issue of fact as to the first and second causes of action for breach of contract based on offset.
C.
No triable issues of fact remain as to Plaintiffs declaratory relief claim and summary adjudication is properly granted as to the third cause of action for declaratory relief
In Lenders third cause of action for declaratory relief, Lender seeks an order declaring that Defendants Kravetz and Jacobsen have no right to the Equity Orchestration membership interests and that these interests are the sole and exclusive property of the Lender.
(Complaint, ¶40.)
Lender contends that, upon Defendants default, right to ownership of the Equity Orchestration LLC membership interests transferred to Lender based on Section 5 of the Pledge Agreement.
(Complaint, ¶38.)
Lender does not seek a declaratory order regarding the value of the 15% interest in Equity Ownership pledged as collateral for the personal guarantees.
Lender establishes that Kravetz and Jacobsen pledged their respective 7.5% membership interests in Equity Orchestration LLC in the Pledge Agreement executed in connection with the personal guarantees on February 15, 2022.
(Plaintiffs Separate Statement, Issue No. 3, SSUMF No. 14,. Belz Dec., Ex. 4, Section 1.)
As discussed above, Defendants failed to make the first principal payment due under the Note, nor did they pay any interest due from February 1, 2023 onward.
(Plaintiffs SSUMF Nos. 17-18; Belz Dec., ¶¶6-9, Ex. 2-3, Section 1.)
Lender provided notice of the default to Defendants on March 21, 2023 and Defendants confirmed on April 3, 2023 that they were unable to make the payments.
(Plaintiffs SSUMF Nos. 21-22, Gurvitz Dec., ¶4; Ex. 5 (Lenders March 21, 2023 Written Notice).)
Kravetz and Jacobsen have also refused to tender their interests as required under the Pledge Agreements.
(Plaintiffs SSUMF NO. 23.)
However, section 5 of the Pledge Agreement does not automatically grant Lender rights in the membership interests upon Default, nor does it create any obligation on Defendants to voluntarily transfer the membership interests to Lender.
(Belz Dec., Ex. 4, Section 5.)
Instead, section 5 states as follows:
If a Pledgor shall default in payment of any Obligations or be in violation of any provision hereunder or under any promissory note or other document, instrument or agreement evidencing or relating to the Obligations, in each case, after giving effect to any applicable cure period (any such default, a Default), the Pledgee
will have all rights and remedies of a secured party after default under the UCC and other applicable law
.
(
Id.
)
Based on the Pledge Agreement, Defendants were not obligated to voluntarily sign over their interests.
As Defendants point out in their response to SSUMF No. 24, Lender was entitled to all rights and remedies of a secured party after default under the UCC and other applicable law.
Lender filed this action and sought a declaratory order declaring its ownership of the collateral, which it was entitled to do under Section 5.
Defendants acknowledge that Lenders action for declaratory relief is a proper exercise of its rights to file an action for judicial foreclosure.
(Defendants SSUMF No. 24.)
As discussed above, there are no triable issues of fact remaining as to the issue of breach.
The undisputed facts establish that (1) Defendants are in default under the Note and the personal guarantees and (2) Lender has exercised its rights under the law to ownership of the collateral based on Defendants default per section 5 of the Pledge Agreement.
As such, based on the undisputed facts, Lender is entitled to an order declaring it the owner of the collateral pledge under the Pledge Agreement, a total 15% interest in Equity Ownership LLC.
Conclusion
Plaintiffs Motion for Summary Judgment is granted.
Based on the undisputed facts, (1) Defendants defaulted on their obligations under the Note and the personal guarantees; and (2) there is currently an outstanding balance of $4,883,666.77.
Based on the undisputed facts, Plaintiff is also the owner of the collateral pledged as security for the personal guarantees executed by Defendants Kravetz and Jacobsena 15% membership interest in Equity Orchestration LLC.
No triable issues of fact remain as to any of the causes of action alleged in the complaint.
Ruling
LEI CUI VS HICKSLANDER LLC, ET AL.
Jul 11, 2024 |
23STCV13260
Case Number:
23STCV13260
Hearing Date:
July 11, 2024
Dept:
47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE:
July 11, 2024
TRIAL DATE:
NOT SET
CASE:
Le Cui v. HicksLander LLC, et al.
CASE NO.:
23STCV13260
MOTION TO TRANSFER VENUE
MOVING PARTY
: Defendant Michael Perry.
RESPONDING PARTY(S)
: Plaintiff Lei Cui
CASE HISTORY
:
·
06/09/23: Complaint filed.
·
05/06/24: First Amended Complaint filed.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is an action for breach of contract concerning Defendants failure to repay and guarantee a loan agreement codified in two promissory notes dated March 5, 2020 and June 7, 2020.
Defendant Michael Perry moves to transfer this action to the Superior Court of California, County of San Bernardino.
TENTATIVE RULING:
Defendant Michael Perrys Motion to Transfer Venue to the Superior Court of California, County of San Bernardino is GRANTED.
DISCUSSION:
Defendant Michael Perry moves to transfer this action to the Superior Court of California, County of San Bernardino on the basis that venue is not proper in the County of Los Angeles.
//
Legal Standard for Mandatory Transfer of Venue
Code of Civil Procedure section 396b(a) provides:
(a)¿Except as otherwise provided in Section 396a, if an action or proceeding is commenced in a court having jurisdiction of the subject matter thereof,
other than the court designated as the proper court for the trial thereof, under this title
, the action may, notwithstanding, be tried in the court where commenced, unless the defendant, at the time he or she answers, demurs, or moves to strike, or, at his or her option, without answering, demurring, or moving to strike and within the time otherwise allowed to respond to the complaint, files with the clerk, a notice of motion for an order transferring the action or proceeding to the proper court, together with proof of service, upon the adverse party, of a copy of those papers. Upon the hearing of the motion the court
shall, if it appears that the action or proceeding was not commenced in the proper court, order the action or proceeding transferred to the proper court
.
(Code Civ. Proc. § 396b(a), bold emphasis and underlining added.) Thus, transfer is mandatory under section 396b(a) if the action was not filed in the proper court. On determining the proper court in which to file an action, Code of Civil Procedure section 395(a) provides:
(a)
¿Except as otherwise provided by law
and subject to the power of the court to transfer actions or proceedings as provided in this title, the superior court in the county
where the defendants or some of them reside at the commencement of the action
is the proper court for the trial of the action. If the action is for injury to person or personal property or for death from wrongful act or negligence, the
superior court in either the county where the injury occurs
or the injury causing death occurs or the county where the defendants, or some of them reside at the commencement of the action, is a proper court for the trial of the action. . . . Subject to subdivision (b), if a defendant has contracted to perform an obligation in a particular county, the superior court in the county where the obligation is to be performed, where the contract in fact was entered into, or where the defendant or any defendant resides at the commencement of the action is a proper court for the trial of an action founded on that obligation, and the county where the obligation is incurred is the county where it is to be performed, unless there is a special contract in writing to the contrary. . . .
(Code Civ. Proc. § 395(a) (bold emphasis added).) An action against a corporate defendant may be brought where its principal place of business is located. (Code Civ. Proc. § 395.5.) The burden is on the moving party to establish that the plaintiffs venue selection is not proper under any statutory grounds. (
Fontaine v. Superior Court. (Cashcall, Inc.)
(2009) 175 Cal.App.4
th
, 830, 836.)
Whether Venue is Proper in Los Angeles
Defendant Perry contends that venue is not proper in the County of Los Angeles. The First Amended Complaint alleges that Defendants Perry and Mao are residents of San Bernardino County (FAC ¶¶ 3-4), that Defendant Chao is a resident of Orange County (¶ 5), and that Defendant HicksLanders, LLC has its principal place of business located in Chino, CA, which is in San Bernardino County. (¶ 2.) The First Amended Complaint alleges that venue is proper in the County of Los Angeles because the contracts at issue in the pleadings were entered into and were to be performed in Los Angeles. (FAC ¶ 10.) However, Defendant contends that the claims in the First Amended Complaint are transitory, with particular reference to Plaintiffs second cause of action for fraud and third cause of action for negligent misrepresentation. Defendant relies on
Nelson v. Crocker National Bank
, a 1975 appellate opinion that addressed,
inter alia
, the nature of an action to cancel a promissory note and deed of trust for fraud for purposes of venue. Citing Code of Civil Procedure section 395, the Court of Appeal reasoned that an action to cancel or reform a promissory note secured by a deed of trust is a transitory action and must follow the person of the defendant. (
Nelson v. Crocker National Bank
(1975) 51 Cal.App.3d 536, 541.) Thus, Defendant argues that venue on the claims asserted in the second cause of action for fraud, third cause of action for negligent misrepresentation, and fifth cause of action for recission for fraudulent inducement must follow the Defendants to San Bernardino County or to Orange County.
Plaintiff does not address this argument in opposition, instead contending that the motion was not timely brought because Defendant Perry failed to timely respond to the original Complaint. Plaintiffs sole authority for this proposition is
Story v. Christin
, a 1934 appellate opinion relying on statutes which have since been repealed and replaced. (See generally
Story v. Christin
(1934) 137 Cal.App. 484.) Moreover, even if that opinion remained good law, the Court of Appeal expressly stated that the then-operative statute required a motion to transfer to be brought at the time the defendant appears and answers or demurs. (
Story v. Christin, supra,
137 Cal.App. at 486.) As Defendant Perry was defaulted on September 5, 2023, he did not appear as a matter of law before the First Amended Complaint was filed on May 6, 2024. As this motion was filed and served on June 3, 2024, less than 30 days later, the motion was made within the time to respond to the amended complaint. (See Code Civ. Proc. § 471.5(a).)
Because Plaintiff does not contest Defendants argument that Plaintiffs claims sounding in fraud are transitory and follow the person of the Defendants, the Court finds Defendant has demonstrated that venue is not proper in Los Angeles as to those claims. Under well-settled precedent, when a defendant is entitled to a change of venue as to one cause of action, that Defendant is entitled to transfer of the entire action. (
Ah Fong v. Sternes
(1889) 79 Cal. 30, 33;
Jhirmack Enterprises, Inc. v. Superior Court
(1979) 96 Cal.App.3d 715, 720-21;
Johnson v. Superior Court
(1965) 232 Cal.App.3d 212, 217.)
Defendant Perry has demonstrated that Los Angeles County is not the proper venue for this action as a matter of law, and that he is entitled to transfer of the entire action. Because the First Amended Complaint establishes by its allegations that venue is proper in either the County of Orange or the County of San Bernardino, Defendants request to transfer the action to the County of San Bernardino must be granted.
CONCLUSION
:
Accordingly, Defendant Michael Perrys Motion to Transfer Venue to the Superior Court of California, County of San Bernardino is GRANTED.
Moving
Party
to give notice.
IT IS SO ORDERED.
Dated: July 11, 2024 ___________________________________
Theresa M. Traber
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at
Smcdept47@lacourt.org
by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
Ruling
IRTH COMMUNICATIONS, LLC, A NEVADA LIMITED LIABILITY COMPANY VS BIOTRICITY, INC., A NEVADA CORPORATION
Jul 12, 2024 |
23STCV28057
Case Number:
23STCV28057
Hearing Date:
July 12, 2024
Dept:
50
Superior Court of California
County of Los Angeles
Department 50
IRTH COMMUNICATIONS, LLC
,
Plaintiff,
vs.
BIOTRICITY, INC.
,
et al.
,
Defendants.
Case No.:
23STCV28057
Hearing Date:
July 12, 2024
Hearing Time:
10:00 a.m.
[TENTATIVE] ORDER RE:
PLAINTIFFS REQUESTS FOR DEFAULT JUDGMENT
Plaintiff Irth Communications, LLC (Plaintiff) requests entry of default judgment against Defendant Biotricity, Inc. Plaintiff seeks judgment in the total amount of $109,293.45, comprising $97,431.23 in damages, $9,177.22 in interest, $2,100.00 in attorneys fees, and $585.00 in costs.
The Court notes that Plaintiff has corrected the defects identified in the Courts May 17, 2024 Order on Plaintiffs prior request for default judgment.
However, the Court notes that the Declaration of Andrew William Haag in support of the request indicates,
inter alia
, that [t]he interest rate calculation is based on the rate of 1.5% per month
(or 18% per year)
. (Haag Decl., ¶ 33, emphasis added.)
Pursuant to LA¿SC rule 3.206¿, [i]f interest is requested in excess of the usury limitations of ¿California Constitution Article XV, Section 1¿, proof must be presented of plaintiffs exemption from the usury limitations unless an exemption has been pleaded in the complaint and admitted by the entry of default. The Complaint does not appear to plead any exemption from the usury limitations and Plaintiff has not provided an explanation for its entitlement to any exemption.¿¿
In addition, Plaintiff seeks interest for the period of November 13, 2023 to May 21, 2024. (Haag Decl., ¶ 33.) Plaintiff states that there are 191 days between these dates. (
Ibid
.) However, it appears that there are 190 days between November 13, 2023 and May 21, 2024.
Based on the foregoing, the Court denies Plaintiffs request for default judgment without prejudice. The Court will discuss with Plaintiff a schedule for resubmission of the default judgment package.
DATED:
July 12, 2024
________________________________
Hon. Teresa A. Beaudet
Judge, Los Angeles Superior Court
Ruling
LESLIE A. SMITH, TRUSTEE OF THE LESLIE A. SMITH TRUST DATED JULY 11, 2002 VS ANCHOR SEAPORT ESCROW
Jul 16, 2024 |
23LBCV02516
Case Number:
23LBCV02516
Hearing Date:
July 16, 2024
Dept:
S27
1.
Background Facts
Plaintiff, Leslie A. Smith, Trustee of the Leslie A. Smith Trust Dated July 11, 2022 filed this action against Defendant, Anchor Seaport Escrow on 12/29/23.
Plaintiffs complaint contains causes of action for breach of contract, breach of fiduciary duty, and negligence.
2.
Demurrer
On 5/15/24, Defendant filed a demurrer to the negligence cause of action.
Defendants demurrer is accompanied by a meet and confer declaration establishing Defense Counsel attempted to email and call Plaintiffs attorney, but received no response.
On 7/03/24, Plaintiff filed a response to the demurrer, wherein she indicates negligence is listed in the caption of the complaint, but there is no negligence cause of action pled in the body of the complaint, and she does not intend to pursue a claim for negligence.
She indicates she does not object to a ruling striking the reference to negligence in the caption of her complaint.
This proceeding demonstrates the importance of participating in meet and confer conversations.
The reference to negligence is stricken without leave to amend.
Plaintiffs attorney is admonished to fully participate in all meet and confer conversations in the future in connection with this and other actions to avoid unnecessary consumption of judicial and attorney resources.
Defendant is ordered to file an answer to the complaint, with the reference to negligence deemed stricken, within ten days.
3.
Notice
Plaintiffs opposition to the demurrer indicates the hearing date is 6/16/24.
It is 7/16/24.
Additionally, on 6/04/24, Plaintiff was ordered to give notice that the Court set a CMC and OSC for 7/16/24.
Plaintiff did not serve the notice until a month later, on 7/03/24, and noticed the CMC and OSC for 6/16/24, not 7/16/24.
The Court admonishes Plaintiffs attorney to give notice promptly in the future in connection with this and other actions, and also admonishes Plaintiffs attorney to ensure dates are correct on all notices.
4.
CMC and OSC
The parties are reminded that there is a CMC and OSC on calendar concurrently with the hearing on the demurrer.
The Court asks Counsel to make arrangements to appear remotely at the CMC, OSC, and hearing on the demurrer.
Ruling
EVAN KROW VS. ACCESS MARIN, INC. ET AL
Jul 10, 2024 |
CGC23604737
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 6. DEFENDANT ROBERT ELAM's Motion For Relief From Default. Continued to July 26, 2024, to be heard by Judge East. =(302/RBU)
Document
State Farm Indemnity Company v. Teudy Leonardo Perez Matos, Sair Harvey Chara Garcia, Jason Pereyra, 7945 Chiropractic P.C., Akiva Ortho Supply Llc, Goal Physical Therapy P.C., Hn Dme Ortho Supply, Inc., Jisu Physical Therapy P.C., Jordon Fersel M.D.P.C., Prompt Medical Group Inc., Van Loon Dme Usa Inc
Feb 05, 2019 |
Lisa A. Cairo |
Other Matters - Contract - Other |
Other Matters - Contract - Other |
611426/2023
Preview
FILED: NASSAU COUNTY CLERK 08/18/2023 09:12 AM INDEX NO. 613258/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/18/2023 EXHIBIT A EXHIBIT A FILED: NASSAU COUNTY CLERK 08/18/2023 09:12 AM INDEX NO. 613258/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/18/2023 Fora Financial Advance, LLC A memberof ForaFinanciafN Purchase and Sale of Future Receivables Agreement (Revenue Advance) Fora Financial Advance, LLC (together with its successors and/or assigns, the "Purchaser") hereby purchases from the merchant set forth above (the "Seller"), a percentage, as specified below (the "Purchased Percentage"), of the proceeds of each future sale by Seller whether the proceeds are paid by cash, check, ACH and other electronic transfers, credit card, debit card, bank card, charge card (each such card shall be referred to herein as a "Credit Card") and/or other means (collectively "Future Sale Proceeds") until Purchaser has received the amount specified below (the "Purchased Amount") for the purchase price ("Purchase Price") set forth below: Seller: SWAN LIMOUSINES & CHARTERS LLC dba SWAN Limousines & Charters Purchaser: Fora Financial Advance, LLC Purchase Price: 112,000.00 Purchase 11.50 %% Percentage: Purchased 138,880.00 Amount: Remittance 677.47 Amount: Remittance business day Frequency: Disbursement $109,200.00 (Purchase Price Less Processing Fee) Amount: Fees: Processing Fee: $2,800.00 Wire Transfer $50.00 Fee*: Insufficient Funds $35.00 Fee: *lf you elect to receive your funds via wire transfer, a separate fee may be deducted directly from your bank account in the amount indicated above. There is no interest rate or payment schedule and no time period during which the Purchased Amount must be collected by Purchaser. Seller going bankrupt or going out of business, in and of itself, does not constitute a breach of this Agreement. Purchaser is entering into this Agreement knowing the risks that Seller's business may slow down or fall, and Purchaser assumes these risks based on Seller's representations, warranties and covenants in this Agreement, which are designed to give Purchaser a reasonable and fair opportunity to receive the benefit of its bargain. Seller's Information DBA: SWAN Limousines & Charters Legal Entity: Limited Liability Company (LLC) Business Legal Name: SWAN LIMOUSINES & CHARTERS LLC Address of Business Location: City State, Zip: Business Phone: Fax: FILED: NASSAU COUNTY CLERK 08/18/2023 09:12 AM INDEX NO. 613258/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/18/2023 Federal State # (Tax ID): Mobile #: Website: E-MAIL Bank: Account #: NOTICE OF CONSENT TO ELECTRONIC COMMUNICATIONS: Seller hereby consents and authorizes Purchaser and its affiliates to contact Seller at any telephone number or email address Seller provides, using any means of communication associated with the telephone number or email address, including, but not limited to, text messages via an automatic telephone dialing system. All automated communications systems will have an opt-out procedure in adherence to applicable law. To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies every customer. What this means to you: At the time of application and during our relationship, we will request your name, address, date of birth, and other information that will allow us to identify you. We may also ask to see your driver's license or other identifying documents. Purchase and Sale of Future Receivables Agreement (Revenue Advance) 1. TERMS AND CONDITIONS OF PURCHASE AND SALE OF FUTURE SALE PROCEEDS Section 1.1 (a) In exchange for the foregoing, Seller hereby agrees (i) to deposit all Future Sale Proceeds into the Bank Account(s) identified in Exhibit A attached hereto ("the Bank Account") (ii) to identify for Purchaser in Exhibit A all other existing Bank Accounts and to provide updated information regarding future Bank Accounts maintained or used by Seller; (iii) not to deposit any funds into the Bank Account other than Future Sale Proceeds, or, if any such deposits are made, to notify Seller as soon as practicable; (iv) to enter into a Credit Card processing agreement Processor," reasonably acceptable to and approved by the Purchaser with a Credit Card Processor (the "Credit Card who shall serve as Seller's sole Credit Card Processor), in order to obtain Credit Card processing services, and instruct the Credit Card Processor to deposit all Credit Card receipts of Seller into the Bank Account. At Seller's request, Purchaser may review any Credit Card processing agreement that Seller has entered into before the date of this Agreement, and Purchaser may approve any Credit Card processing agreement at Purchaser's sole discretion. The obligations of Purchaser under this Agreement will not be effective unless and until Purchaser has completed its review of the Seller and has accepted this Agreement by delivering the Purchase Price. (b) Seller shall maintain the Bank Account until all obligations are satisfied under this Agreement. Additionally, Seller will ensure that all funds arising from Future Sale Proceeds are deposited in, or otherwise credited to, the Bank Account. (c) Seller and Purchaser acknowledge and agree that the Purchase Price paid by Purchaser in exchange for the Purchased Amount of Future Sale Proceeds is a purchase of the Purchased Amount and is not intended to be, nor shall it be construed as, a loan from Purchaser to Seller. Each Future Sale Proceeds purchased by Purchaser hereunder represents a bona fide sale by Seller to a customer. Future Sale Proceeds purchased by Purchaser shall be owned by Seller free and clear of all encumbrances. (d) There is no interest rate or payment schedule and no time period during which the Purchased Amount must be collected by Purchaser. Seller going bankrupt or going out of business, in and of itself, does not constitute a breach of this Agreement. Purchaser is entering into this Agreement knowing the risks that Seller's business may slow down or fail, and Purchaser assumes these risks based on Seller's representations, warranties and covenants in this Agreement, which are designed to give Purchaser a reasonable and fair opportunity to receive the benefit of its bargain. Section 1.2 Seller authorizes Purchaser and its agents to initiate electronicchecks or ACH transfers in amounts as specified in Section the bank holding the Bank Account (the "Bank") and all applicable third parties 1.3 and authorizes to provide to Purchaser and its agents all information necessary to permit them to determine the amount to be delivered to Purchaser and initiate such electronic check or ACH transfers. Fora will debit the Remittance Amount Frequency. If the Remittance - Friday), and a scheduled according to the Remittance Frequency is daily (Monday debit would occur on a day on which the bank was not open to process ACH transactions or if the bank was unable to process ACH transactions due to a disruption of the ACH payment network, Purchaser will debit the Bank Account for an amount equal to the sum of; (i) the Remittance Amount due on that day, plus (ii) the Remittance Amount due on the preceding day when the bank was not open or could not process ACH transactions. If the Remittance Frequency is weekly, Purchaser may change the Remittance Frequency to daily if Seller's weekly remittance is rejected for insufficient funds two or more times during the course of this Agreement. FILED: NASSAU COUNTY CLERK 08/18/2023 09:12 AM INDEX NO. 613258/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/18/2023 Section 1.3 Changes to the Remittance Amount (IMPORTANT PROTECTION FOR SELLER). (a) The Initial Remittance Amount is intended to represent the Purchased Percentage of Seller's Future Sale Proceeds. Once each calendar month, either Purchaser or Seller may request a reconciliation to adjust the Remittance Amount to more closely reflect Seller's actual Future Sale Proceeds times the Purchased Percentage (a "Reconciliation"). i.Request from Seller: To request a Reconciliation call (855) 326-8523 or e-mail CustomerService@ForaFinancial.com. ii. Request from Purchaser: Purchaser may request a Reconciliation by first class mail sent to Seller's Business Address or email address shown in this Agreement, unless Seller notifies Purchaser of an alternative mail or email address. (b) Seller agrees to provide Purchaser any information requested by Purchaser to assist in a Reconciliation ("Reconciliation Information") within five days after a request. Within five days after Purchaser's reasonable verification of the Reconciliation Information, Purchaser shall adjust the Remittance Amount on a going-forward basis to more closely reflect the Seller's actual Future Sales Proceeds times the Purchased Percentage. Purchaser shall notify Seller prior to any such adjustment. After each adjustment made pursuant to this paragraph, the new dollar amount shall be deemed the Remittance Amount until any later adjustment. days' (c) If Seller fails to timely provide Reconciliation Information after 5 notice to Seller, Purchaser may adjust the Remittance Amount to the Initial Remittance Amount until any later adjustment. Section 1.4 If at any time Seller informs Purchaser or Purchaser leams that a deposit has been made into the Bank Account that represents something other than Future Sale Proceeds, and Purchaser has removed the Purchased Percentage from such deposit, Purchaser shall either, at its option, retum such amount to the Bank Deposit or deduct such amount from its next withdrawal of the Purchased Percentage of Future Sale Proceeds. Section 1.5 Seller will pay Purchaser a processing fee as stated above at the time Seller signs this Agreement, or Purchaser may deduct the processing fee from the Purchase Price. Section 1.6 "accounts" (a) The Future Sale Proceeds sold by Seller to Purchaser pursuant to this Agreement are or intangibles" "payment as those terms are defined in the Uniform Commercial Code as in effect in the state in which the Seller is located (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 Sale Proceeds free and clear of any liens and encumbrances, from Seller to Purchaser. To the extent the Future Sale Proceeds are "accounts" intangibles" or "payment then (i) the sale of the Future Sale Proceeds creates a security interest agreement" as defined in the UCC; (ii) this Agreement constitutes a "security under the UCC; and (iii) Purchaser has all the rights of a secured party under the UCC with respect to such Future Sale Proceeds. Seller further that, with or without agrees an Event of Default, Purchaser may notify account debtors, or other persons obligated on the Future Sale Proceeds, or holding the Future Sale Proceeds, of Seller's sale of the Future Sale Proceeds and may instruct them to make payment or otherwise render performance to or for the benefit of Purchaser. (b) Seller authorizes Purchaser to file one or more UCC-1 forms consistent with the UCC to give notice that the Purchased Amount of Future Sale Proceeds is the sole property of Purchaser. 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 Sale Proceeds or Purchaser's right to collectsame. Section 1.7 Seller may cancel this transaction at any time within three (3) business days after Purchaser forwards any or all of the Purchase Price to Seller. However, in order to cancel the transaction, Seller must retum to Purchaser the entire amount of the Purchase Price received by Seller within that same three (3) day period. Notwithstanding the foregoing, the Processing Fee and Wire Fee(s) (if any) are non-cancellable and nonrefundable. 2. RECE1VABLES Section 2.1 As providedherein, the Purchased Percentage (as specified on Page 1) of each Future Sale Proceeds shall be collected by Purchaser from electronic check or ACH transfers initiated by Purchaser or Its agents from the Bank Account. In the event that Seller changes or permits the change of the Bank Account or the Credit Card Processor or adds an additional Bank Account or Credit Card Processor, Purchaser shall have the right, without waiving any of its other rights and remedies hereunder and without notice to Seller, to notify the new or additional Bank or Credit Card Processor of the sale of Future Sale Proceeds hereunder and to collect from such new or additional Bank or Credit Card Processor all or any portion of the amounts received by such Bank or Credit Card Processor. Seller, by execution of this Agreement, hereby grants to Purchaser an irrevocable Power of Attorney, which Power of Attorney shall be coupled with an interest, and hereby appoints Purchaser or any of Purchaser's representatives as Seller's FILED: NASSAU COUNTY CLERK 08/18/2023 09:12 AM INDEX NO. 613258/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/18/2023 Attorney-in-Fact, to take any and all action necessary to direct such new or additional Bank or Credit Card Processor to deliver the Future Sale Proceeds to Purchaser as contemplated by this Section 2. Section 2.2 This Agreement shall be in full force and effect until such time as the Purchased Amount of Future Sale Proceeds has been received by Purchaser from Seller. 3. STATEMENTS AND REPORTS Section 3.1 Seller acknowledges and agrees that in connection with the execution of this Agreement an investigative or consumer report may be made by Purchaser. Accordingly, Seller authorizes Purchaser and its agents and representatives and any and all credit reporting agency employed or retained by Purchaser to investigate any references given or any other statements of data obtained from or about Seller for the purpose of this Agreement and to order, receive and review credit reports at any time now or in the future on Seller. 4. ACH AUTHORIZATION AND CREDIT CARD PROCESSING AGREEMENT Section 4.1 Simultaneously with the execution hereof, Seller authorizes Purchaser and its agents to initiate electronic check or ACH transfers equal to the Purchased Percentage of all Future Sale Proceeds of Seller which authorization shall continue until Purchaser has received an amount equal to the Purchased Amount and all fees and charges (including legal fees) due under this Agreement or Seller's obligations under this Agreement are otherwise terminated pursuant to Section 1.1(d). Seller further authorizes the Bank and its Credit Card Processor and all third parties (if applicable) to provide to Purchaser and its agents all information reasonably necessary to permit Purchaser to ascertain the amount to be delivered to Purchaser and initiate such electronic check or ACH transfers from the Bank Account. This authorization shall only be revoked with the prior written consent of Purchaser. Seller agrees to pay an insufficient funds fee as stated above if any electronic check or ACH transfer is rejected or dishonored. Additionally, the Bank Account may not be closed and Seller's agreement with the Credit Card Processor cannot be amended or terminated without the prior written consent of Purchaser. In the event that Purchaser determines, in its sole discretion, that the Bank or the authorized Credit Card Processor utilized by Seller is no longer acceptable, Seller shall, upon receipt of written notice from Purchaser, have five (5) business days to terminate its relationship with the Bank or its Credit Card Processor and to open a new Bank Account or enter into a similar Processing Agreement with a new bank or Credit Card Processor. Seller agrees to execute any and all documents and/or agreement(s) in order to satisfy the foregoing. Section 4.2 Purchaser is neither responsible nor shall it be liable for any actions undertaken by the Bank or the Seller's Credit Card Processor which are not contemplated or authorized by this Agreement or the Processing Agreement to be entered into by and between Seller and the Credit Card Processor. Seller, by execution of this Agreement, hereby agrees to indemnify and hold Purchaser harmless from any and all actions of the Bank or the Credit Card Processor. Section 4.3 Purchaserand Seller understand that the Bank and the Credit Card Processor may charge a fee or commission to Seller for processing electronic checks, ACH transfers and receipts representing Future Sale Proceeds. Both parties further understand that the amounts due to Purchaser hereunder shall be based solely upon the net amount due to Seller from the Future Sale Proceeds after deducting the Bank and Credit Card Processor's fee or commission from the Future Sale Proceeds. Section 4.4 During the entire time period that this Agreement shall be in force and effect, Seller hereby authorizes Purchaser to contact any bank or Credit Card Processor used by Seller (current or prior) in order to obtain whatever information Purchaser deems it may require regarding Seller's transactions with any such bank or Credit Card Processor. Such information shall include, but is not limited to, information Purchaser deems necessary to verify the amount of Future Sale Proceeds previously received or processed on behalf of Seller and any and all fees which may have been charged to Seller by the bank or Credit Card Processor. Seller further authorizes Purchaser to contact any bank or Credit Card Processor of Seller (current or prior) in order to confirm that Seller is exclusively using the Bank Account and the Credit Card Processor. 5. BINDING ACCEPTANCE Section 5.1 Upon execution hereof, each of the parties hereto shall be obligated hereunder and shall be subject to all of the terms and conditions stated herein ("Agreement"). The person executing this Agreement on behalf of Seller warrants and represents that he/ she is authorized to bind Seller to all of the terms and conditions set forth in this Agreement and that all of the information provided herein is true and accurate in all respects at the time the information was provided. Purchaser's payment of the Purchase Price shall be deemed Purchaser's acceptance of this Agreement, notwithstanding Purchaser's failure to execute this Agreement. 6. EVENTS OF DEFAULT, PURCHASER'S RIGHTS UPON DEFAULT, SELLER'S REPRESENTATIONS AND WARRANTIES Section 6.1 Subject to applicable law, Purchaser may declare Seller to be in default under this Agreement if any one or more of the following events occurs and is continuing (each an "Event of Default"): (a) Seller fails to maintain the Bank Accounts or open a new bank account to deposit Future Sale Proceeds without FILED: NASSAU COUNTY CLERK 08/18/2023 09:12 AM INDEX NO. 613258/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/18/2023 first obtaining Purchaser's consent; (b) Seller fails to provide copies of all documents and requested information related to Seller's financial or banking affairs within five (5) days after a request by Purchaser; ((c) Seller uses any portion of the Purchase Price for personal, family or household purposes or to fund a dividend or other distribution to Business owners; ((d) Seller breaches any representation, warranty, agreement, promise or covenant set forth in this Agreement, or Seller or any of Seller's employees or agents provide Purchaser with any false or misleadinginformation; ((e) Seller makes any act or omission for the purpose of interfering with or circumventing, the remittance to Purchaser of any amount owed under this Agreement, including, but not limited to: (i) conducting business under an alternative name; (ii) depositing Future Sale Proceeds into any bank accounts other than the Bank Account; (iii) encouraging customers to make payments by cash that Seller fails to deposit into the Bank Account; or (iv) manipulating the use and form of business entities for the purpose of avoiding Seller's obligations under this Agreement; (f) Seller fails to permit Purchaser or its agent to conduct a site inspection of Seller's business at any reasonable time during the of this Agreement; (g) Without Purchaser's prior express written consent, Seller enters into any credit, cash advance or other financing arrangement requiring daily or weekly payments or remittances. Purchaser may share information regarding this Agreement with any third party in order to determine whether Seller is in compliance with this provision; (h) Without Purchaser's prior express written consent, Seller sells any of Seller's assets outside of the ordinary course of business; ((i) Without Purchaser's prior express written consent, Seller sells any of Seller's Future Sale Proceeds while Seller owes any amount under this Agreement; (j) Without Purchaser's prior express written consent, Seller undertakes or permits a change of control of Seller's business; (k) Seller defaults on any other agreement that Seller has with Purchaser or any of its affiliates. Section 6.2 Purchaser's Rights Upon any Event of Default: (a) All amounts of the Purchased Amount that have not yet been delivered to Purchaser and any assessed fees shall be immediately due and payable, including all Receivables or Future Sale Proceeds, untii the entire balance, fees and deficiencies are paid in full; (b) The Purchased Percentage will equal 100% of Future Sale Proceeds; (c) Purchaser may commence an action against Seller and Seller's Business to collect all amounts owed in connection with this Agreement; out- (d) Purchaser may charge and recover from Seller the additional fees, including if applicable, all of Purchaser's attorneys' of-pocket costs and expenses, including reasonable fees, arbitration costs, and/or court costs incurred by Purchaser in connection with the defense, protection or enforcement of its rights under this Agreement (including, without limitation, in connection with any bankruptcy proceeding) and any other fees that may be due and owing (collectively, "Costs of Collection"); (e) Purchaser may withdraw funds from any of Seller's Bank Accounts by ACH debit, up to the amount due following default as provided in Section 6.2(a) (including the fees as set forth in this Agreement and any Costs of Collection); (f) Purchaser may exercise any and all rights or remedies available to a secured creditor under Article 9 of the Uniform Commercial Code or analogous state laws. Subject to arbitration as provided in Section 21, all rights available to Purchaser are cumulative and not exclusive of any other right or remedy available to Purchaser in law or equity. Section 6.3 Seller and any individuai signing this Agreement as a Guarantor represents and warrants to Purchaser, as of the date hereof and, unless expressly stated otherwise, each day the Purchased Amount remains undelivered and any assessed fees remain unpaid, as follows: (a) The Future Sale Proceeds are not subject to any claims, charges, liens, restrictions, encumbrances or security interest of any nature whatsoever not disclosed to Purchaser prior to executing this Agreement; (b) As of the date the Purchase Price is paid to Seller, Seller and Seller's business are not the subject of a bankruptcy or reorganization proceeding that has not been discharged or dismissed, do not have a plan to make a bankruptcy filing and have not met with a bankruptcy attorney within the past six (6) months; (c) Seller acknowledges that the information (financial and other) provided by Seller has been relied upon by Purchaser in connection with its decision to purchase the Future Sale Proceeds. All information that Seller has provided to Purchaser is true, correct and accurately reflects Seller's financial condition and business operations at the time the information is provided; (d) Seller has all required permits, licenses, approval, consents and authorizations necessary to conduct its business; (e) Seller and Seller's business are in compliance with all laws, regulations and requirements that affect its business; (f) Seller and each Guarantor has full power and authority to enter into and perform its obligations under this FILED: NASSAU COUNTY CLERK 08/18/2023 09:12 AM INDEX NO. 613258/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/18/2023 Agreement; (g) Seller's Business has the legal right and ability to execute this Agreement and perform all of its obligations under this Agreement without violating any other agreement, obligation, promise, court order, administrative order or decree, law or regulation to which it is subject; (h) Seller's Business is duly qualified, licensed and in good standing in each state in which it is doing business; (i) Seller's Business's papers and all amendments thereto have been duly filed and are in proper order, and any capital stock, member interest or other equity issued and outstanding was and is properly issued; (j) Seller's Business's books and records are accurate and up-to-date and accessible to Purchaser; (k) Seller's Business's legal name is exactly as shown on this Agreement; (1) All of the Bank Accounts are maintained at U.S. financial institutions and all of the Bank Accounts were established and are used solely for business purposes and not for personal, family or household purposes. (m) Seller understands that the Bank Account is the sole and exclusive location where it will deposit all Future Sale Proceeds and that the services of the Credit Card Processor are the sole and exclusive means by which Seller shall process its Credit Card transaction(s). (n) Seller shall endeavor to continue to conduct consistent with past practice and shall comply with all of its business the terms and conditions of its deposit account agreement with the Bank and its Processing Agreement with the Credit Card Processor. As of the date the Purchase Price is paid to Seller, Seller has no present intention of closing its business or ceasing to operate business, either permanently or temporarily, during the twelve (12) month period after the date hereof and Seller hereby acknowledges that Purchaser shall rely on this representation in its decision to enter into this Agreement. 7. OTHER REMEDIES Section 7.1 In the event of any breach or inaccuracy of any representation or warranty made by Seller in this Agreement or in any certificate or other document delivered by or on behalf of Seller pursuant hereto; or any breach or default in the performance by Seller of any covenant or agreement contained in this Agreement or in any certificate or other document delivered by or on behalf of Seller pursuant hereto (any of the foregoing a "Breach"), Purchaser shall be entitled to all remedies available hereunder, under Article 9 of the Uniform Commercial Code or other applicable law, subject to arbitration as provided in Section 21. Section 7.2 In the event that Purchaser cannot access the Bank Account because of a Breach, Purchaser will be entitled to charge Seller an estimated daily remittance, plus a fee of up to $500 for each day Purchaser does not have access to the Bank Account. Section 7.3 In the event that Seller breaches any of the covenants in Section 6, Seller agrees that Purchaser will be entitled to, among other things, damages equal to the amount by which the cash attributable to the Purchased Amount of Future Sale Proceeds exceeds the amount of cash recei ved from the Future Sale Proceeds that have previously been received by the Purchaser under this Agreement. Section 7.4 Seller hereby agrees that Purchaser may automatically debit any such damages from any of Seller's Bank Accounts via ACH, electronic check or wire transfer, and/or may notify the Credit Card Processor to remit to Purchaser any and all amounts received by the Credit Card Processor up to the amount due following default as provided in Section 6.2(a). In addition, and to the extent not prohibited by applicable law and any agreements between Seller's Credit Card Processor and the applicable Credit Card association, Purchaser and Seller's Credit file" Card Processor shall be authorized to place Seller on any "terminated merchant list with any applicable Credit Card association in the event of a breach by Seller of Section 6 hereof. Further, Purchaser shall be entitled to collect all Indemnifiedamounts from Seller in accordance with Section 14 hereof. Section 7.5 No remedy of the parties hereunder shall be exclusive of any other remedy herein or provided by law, but each shall be cumulative and in addition to each and every other remedy, subject to arbitration as provided in Section 21. Waiver of a default shall not be a waiver of any other or subsequent default. 8. NO RIGHT TO REPURCHASE Seller acknowledges that it has no right to repurchase the Future Sale Proceeds from Purchaser. 9. NOTICES Except for Reconciliation requests as provided in Section 1.3, all notices which may be given under any provisions of this Agreement shall be in writing and deemed to have been duly given when served personally or mailed by an express mail or courier service first class mail, postage prepaid and properly addressed to the parties at their addresses written on Page 1 or to such other address as each of the parties may designate in writing to the other parties in the manner provided in this Section 9, together with copies as follows: In case of Notice to Purchaser: inancial Advance, LLC FILED: NASSAU COUNTY CLERK 08/18/2023 09:12 AM INDEX NO. 613258/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/18/2023 Attn: Legal Department Notices to Seller may be sent to Seller via e-mail to any e-mail address provided by Seller or by first class mail to the Business Address provided, unless Seller notifies Purchaser of an altemative address in writing. Seller must provide Purchaser with updated contact information on an ongoing basis. 10. MODIFICATIONS; AMENDMENTS This Agreement is the entire agreement between the parties and supersedes any and all prior oral and/or written agreements and understanding by and among the parties with respect to the subject matter hereof and this Agreement may not be changed, modified or terminated orally, and no changes, modifications, termination or attempted waiver shall be valid unless in writing signed by the parties against whom the same is sought to be enforced. 11. BINDING EFFECT This Agreement shall be binding upon and inure to the benefit of Seller, Purchaser 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 Purchaser, which consent may be withheld in Purchaser's sole discretion. Purchaser reserves the right to assign this Agreement with or without prior written notice to Seller. 12. APPLICABLE LAW; CONSTRUCTION This Agreement shall be construed and enforced in accordance with the internal laws and not the conflict of laws of the State of New York applicable to agreements made and to be performed in such state. The parties hereto have participated jointly in the drafting of this Agreement and the documents to be delivered in connection therewith. In the event of ambiguity or questions of intent or interpretation, this Agreement and the documents to be delivered in connection therewith shall be construed as if drafted jointly by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. 13. WAlVER Waiver by any party of any breach of this Agreement or failure to exercise any right hereunder shall not be deemed to be a waiver of any other or subsequent default, breach or right. The failure of any party to take action by reason of any such breach or to exercise any such right shall not deprive such party of the right to take action at any time while such breach or conditiongiving rise to such right continues. 14. LIMITATION OF LIABILITY AND INDEMNITY (a) With respect to any claims Seller may have against Purcha ser, Seller's sole remedy will be actual money damages that shall not exceed the amount of any funds delivered to Purchaser. In no event shall Purchaser be liable to seller for consequential, incidental, punitive, exemplary, special or indirect damages or losses, or lost profits, relating to this Agreement, in tort, contract, or otherwise, including any negligence. (b) Seller shall assume liability for and does hereby agree to indemnify, protect, save and keep harmless Purchaser and its agents and servants, from and against any and all liabilities, claims, losses, obligations, damages, penalties, actions, and suits of whatsoever kind and nature imposed on, incurred by or asserted by third parties against Purchaser or its agents and servants, in any way relating to or growing out of such breach (collectively "Indemnified Amounts"), including, without limitation, the payment of all costs and expenses of every kind for the enforcement of attorneys' Purchaser's rights and remedies hereunder, including fees and costs in any Trial Court or Appellate Court proceeding, any administrative proceeding, any arbitration or mediation, or any negotiations or consultations in connection with this Agreement. Such Indemnified Amounts shall bear interest at the highest rate of interest allowed by applicable law until paid. 15. JURISDICTION AND VENUE In the event of a controversy arising out of the interpretation, construction, performance or breach of this Agreement, the parties hereby agree and consent to the sole and exclusive jurisdiction and venue of the federal and state courts in the State of New York, to resolve any and all claims arising out of, relating to or in connection with this agreement or the relationship between the parties; and further agree and consent that personal service of process outside of the State of New York in any such action or proceeding shall be tantamount to service in person within New York State. 16. ENTlRE AGREEMENT This Agreement, together with any Credit Card processing agreement, contains the entire agreement and understanding between Seller and Purchaser and supersedes all prior agreements and understandings relating to the subject matter hereof unless otherwise provided herein. 17. SURVIVAL OF REPRESENTATIONS, ETC. AII representations, warranties and covenants herein shall survive the execution and delivery of this Agreement and shall continue in full force and effect until all obligations under this Agreement shall have been satisfied in full and this Agreement shall have terminated. FILED: NASSAU COUNTY CLERK 08/18/2023 09:12 AM INDEX NO. 613258/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/18/2023 18. DISCI.AIMER OF WARRANTIES No representations, warranties or promises pertaining to this Agreement or the transactions contemplated thereby have been made by or shall be binding on any party hereto except as expressly stated in this Agreement. 19. MERGER; DISCLAIMERS All understandings and agreements heretofore made between the parties hereto are merged in this Agreement. In the makingand execution of this Agreement, neither Seller nor Purchaser have relied upon or been induced by any statements or representations, other than those expressly set forth in this Agreement. Seller and Purchaser have relied solely on the representations expressly made herein and on such investigations, examinations and inspections, financial or otherwise, as Seller and Purchaser have respectively chosen to make or have made. 20. JURY TRIAL PURCHASER, SELLER AND GUARANTOR HEREBY WAlVE TRIAL BY JURY IN ANY COURT PRESIDING OVER ANY SUIT, ACTION OR PROCEEDING ON ANY MATTER ARISING OUT OF OR IN CONNECTION WITH OR IN ANY WAY RELATED TO THE TRANSACTIONS OF WHICH THIS AGREEMENT IS A PART OF THE ENFORCEMENT HEREOF, UNLESS SUCH WAlVER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY. PURCHASER, SELLER AND GUARANTOR HERETO ACKNOWLEDGE THAT EACH MAKES THIS WAlVER KNOWINGLY, WILLINGLY AND VOLUNTARILY AND WITHOUT DURESS. PURCHASER, SELLER AND GUARANTOR HAVE BEEN GIVEN AMPLE TIME AND OPPORTUNITY TO SEEK ADVICE OF COUNSEL PRIOR TO THE EXECUTION OF THIS AGREEMENT. 21. ARBITRATION By signing this Agreement, you agree to the terms of this Arbitration clause ("Clause"). Read the terms of this Clause carefully, as it substantially affects your rights. Background. In arbitration, a third party ("Arbitrator") resolves Disputes in a hearing ("hearing"). The Parties waive the right to go to court. The Parties waive jury trials. The arbitration hearing is private and less formal than court. Arbitrators may limit pre- "discovery." hearing fact finding, called The decision of the Arbitrator is final. Scope. This Clause governs the Purchaser, Seller(s), and any Guarantor(s) (together, the "Parties"), their heirs, suc