Preview
FILED: MONROE COUNTY CLERK 04/18/2024 11:18 AM INDEX NO. E2024006629
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/18/2024
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3830394
Book Page CIVIL
Return To: No. Pages: 13
JEFFREY MICHAEL PARRELLA
14 Wall Street Instrument: EXHIBIT(S)
20th Floor
New York, NY 10005 Control #: 202404181472
Index #: E2024006629
Date: 04/18/2024
DIAMOND ADVANCES, INC. Time: 1:40:41 PM
HUNTER II ENTERPRISES, INC. DBA HUNTER II
ENTERPRISES
HUNTER, FRANK LOVELL
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
202404181472 Index #
INDEX : E2024006629
NO. E2024006629
FILED: MONROE COUNTY CLERK 04/18/2024 11:18 AM
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/18/2024
1979 Marcus Avenue | Suite 210 | Lake Success | NY | 11042 | P (516) 412-7771 | F (516) 412-7772
www.diamondadvances.com
MERCHANT AGREEMENT
24th
This Purchase and Sale of Future Receivables Agreement (“Agreement”) is made and effective this _________ January, 2024 (the
day of______________
“effective date”), by and between HUNTER
_______________________________
II ENTERPRISES, INC. (“Merchant”) and Diamond Advances, Inc. (the “Company”) and the
Company shall jointly be referred to as the parties in this Agreement.
Merchant's Legal Name: HUNTER II ENTERPRISES, INC.
_________________________________ Merchant's DBA: ________________________________________
HUNTER II ENTERPRISES
12601 Perimeter Road
Physical Address: ______________________________________ 214-770-9485
Business Phone: (_____)___________________
Dallas, TX 75228
______________________________________ Business Fax: (_____)__________________
Mailing Address: _____________________________ frank.hunter@cableitsolutions.com
Business Email: __________________________________
_____________________________
38-3986702
Federal Tax ID: _______________________ Owner/Principal: Frank Lovell Hunter
___________________________
,
Cell Phone(s):(____)_________________(_____)__________________ Owner/Principal (#2): _______________________
PURCHASE AND SALE OF FUTURE RECEIVABLES
Merchant wishes to sell, and the Company wishes to purchase, the agreed amount of the Merchant’s future receivables generated
during a certain foreseeable future at the agreed price under the terms and conditions as set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained within this Agreement, it is hereby agreed as follows:
I. Effective upon payment by the Company to the Merchant of the purchase price specified below (the “Purchase Price”), the
Merchant sells to the Company, all of Merchant’s right, title and interest in the applicable future receivables (“Future Receivables”) of the
Merchant in the amount specified below as “Specified Amount.” In this Agreement, Specified Amount shall sometimes be referred to as
obligations.
Purchase Price: Specified Percentage: Daily Payment: Purchased Amount:
5000.00
$____________ 10
_____% 93.13
$_______ 7450.00
$_____________
1. Section 1.1 The Company shall have the right to collect the Specified Amount from the Merchant, using Automatic Clearing House (ACH),
until the Specified Amount from the Merchant’s future receivables has been delivered by Merchant to the Company. The parties agree that the
Company will collect the certain percentage amount based on the Merchant’s average sales _____ 10 % (“Specified Percentage”) of the Merchant’s
future daily receivables, or the amount specifically agreed between the parties, whichever is greater. However, the Company may, in its sole
discretion, may choose to collect the fixed amount requested by the Merchant each day, which is less than the Specified Percentage for its
processing convenience only. By collecting the amount less than agreed between the parties, the Company does not waive its right to collect the
amount specifically agreed between the parties, and may choose to process the maximum amount agreed to between the parties each day. Since
the Company is purchasing future receivables at a discounted rate, the election to collect the less than the Specified Percentage of the daily
receivables by the Company does not impose any obligation to pay interest on the Merchant. The Purchase Price is agreed between the parties
based on Merchant’s representation, warranty and financial documents related to the level of receivables generated on average each day.
Merchant specifically agrees to stay in business and generate receivables for the term of no less than one year from the date it receives the
Purchase Price from the Company.
Merchant (#1) Frank Lovell Hunter FrankHunter
FrankHunter (Jan 24, 2024 15:26 CST)
Print Name Signature
Merchant (#2)
Print Name Signature
Owner (#1) Frank Lovell Hunter FrankHunter
FrankHunter (Jan 24, 2024 15:26 CST)
Print Name Signature
Owner (#2)
Print Name Signature
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Section 1.2 Upon any default by the Merchant, the Company shall have the right to collect the Specified Amount from the Merchant, using a credit
card processor, until the Specified Amount from the Merchant’s future credit card receivables has been delivered by Merchant to the Company.
The parties agree that the Company will collect the amount not exceeding the Specified Percentage of the Merchant’s future daily receivables as
agreed above under such circumstances this section becomes applicable. In order to allow the Company to exercise this option, the Merchant
specifically agrees to enter into a credit card processing agreement reasonably acceptable to the Company to obtain credit and processing services,
and must authorize the Processor to pay the credit card receivables collected in the sum attributable to the Specified Percentage of each of such
amount collected to the Company rather than to the Merchant until the Company receives the Specified Amount from the Processor. The
Merchant shall not change its processor or enter into processing agreements with other processors without Company’s prior written consent.
Section 1.3 SPECIAL POWER OF ATTORNEY In order to ensure the Company with the collection of the future receivables using a credit
card processor, Merchant gives a special power of attorney authorizing the Company to communicate with Merchant’s credit card
processor for the purpose of demanding the delivery of Merchant’s future receivables, statements, account information, balance,
daily activities. This special power of attorney may not be revoked by the Merchant until all agreed to future receivables have been delivered to the
Company
2. No Waiver of Rights. There shall be effected no waiver by failure on the part of the Company to exercise, or delay in exercising, any right under
this Agreement, nor shall any single or partial exercise by the Company of any right under this Agreement preclude any other future exercise of any
right. The remedies provided hereunder are cumulative and not exclusive of any remedies provided by law or equity.
3. The Merchant, including but not limited to its owners, shareholders, partners, directors or officers, hereby guarantees Merchant’s
performance of all the covenants made by Merchant in this Agreement, including the following covenants (“Merchant Contractual
Covenants”). Merchant agrees: (i) To conduct its business consistent with past practice; (ii) To exclusively use Processor for the
processing of all of its credit card transactions, if applicable;(iii) Not to take any action to discourage the use of credit cards or to permit any event
to occur which could have an adverse effect on the use, acceptance or authorization of credit cards for the purpose of Merchant’s services and
products;(iv) Not to change its arrangements with Processor in any way which is adverse to the Company; (v) Not to take any action that has the
effect of causing the credit card processor through which the major credit cards are settled to be changed from Processor to another credit card
processor; and (vi) Not to sell, dispose, convey or otherwise transfer its business or assets without the express prior written consent of the
Company and the assumption of all of Merchant’s obligations under this Agreement pursuant to documentation reasonably satisfactory to the
Company.
4. Used in this Agreement, “day” and “daily” shall refer to and mean a weekday that the Merchant is transacting its normal business
including any national or local holiday. Unless ACH or credit card processor allows the delivery of the receivables created on holidays, the
receivables created on a holiday shall be delivered to the Company on the first business day following the holiday.
5. The Company will charge to Merchant’s account Company’s standard origination fee on all wire transfers and/or checks sent via FedEx, in the
amount of 5%-10% based on the advance amount, charges for returned items in the amount of $35 per occurrence, and all other bank charges
(Refer to Appendix for more details). Merchant agrees to bear the cost of all filing fees, filing taxes, search reports, legal fees and other charges
incurred by the Company in the perfection, protection, preservation and enforcement of Company’s rights in any collateral in which Merchant has
granted the security interest to the Company. Merchant also agrees to promptly pay all fees, costs and expenses (including, without limitation,
attorney’s fees and allocated costs of internal counsel) incurred by the Company in connection with the creation, or administration of this
Agreement or any related instructions, documents or agreements, all costs, fees including the negotiation and documentation of any waivers,
forbearances, amendments or other modifications relating to this Agreement or any such related agreements, and all fees, costs and expenses will
be part of the obligations, will be payable on demand and will be secured by any collateral in which Merchant has granted to the Company. The
Company may also, at its option, charge Merchant’s account for all amounts owing by Merchant to the Company under this Agreement and for all
other obligations.
6. Merchant and each of the below-signed authorizes the Company and its agents and representatives and any credit reporting agency
employed by the Company to investigate any references given or any other statements of data obtained from or about Merchant or any of its
principals for the purpose of this Agreement and to pull credit reports at any time now or in the future on the Merchant and
Owner/Guarantor(s).
7. ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS.
Merchant, its owners and principals represent, warrant and covenant that as of this date and during the term of this Agreement:
Section 7.1 Merchant Contractual Covenants. Merchant agrees to comply with the Merchant Contractual Covenants set forth on the face of this
Agreement.
Section 7.2 Information Regarding Business. The information (financial and other) provided by or on behalf of Merchant to the Company in
connection with the execution of or pursuant to this Agreement is true and correct in all material respects. Merchant shall furnish the
Company with any additional information, documents or instruments which the Company may request from time to time. Merchant’s
representation and warranty also includes that Merchant will be in business for the foreseeable future, Merchant is and has been profitable, there
is no claim pending or expected against Merchant, and Merchant’s financial situation is not expected to change in the foreseeable future.
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Section 7.3 Reliance on Information. Merchant acknowledges that the information (financial and other) provided by Merchant has been
relied upon by the Company in connection with its decision to purchase the Future Receivables.
Section 7.4 Governmental Approvals. Merchant possesses and is in compliance with all permits, licenses, approvals, consents and other
authorizations necessary to conduct its business. Merchant is in compliance with any and all applicable federal, state and local laws and
regulations. Merchant possesses all requisite permits, authorizations and licenses to own, operate and lease its properties and to conduct the
business in which it is presently engaged.
Section 7.5 Authorization. Merchant, and the person(s) signing this Agreement on behalf of Merchant, have full power and authority to
enter into and perform the obligations under this Agreement and the Processing Agreement. This Agreement and the Processing Agreement have
been duly authorized by all necessary and proper action, has been executed by and on behalf of Merchant and constitutes a valid and binding
obligation of Merchant.
Section 7.6 Insurance. Merchant will maintain insurance in such amounts and against such risks as are consistent with past practice and shall show
proof of such insurance upon the reasonable request of the Company.
Section 7.7 Change of Name or Location. Merchant will not conduct Merchant’s business under any name other than as disclosed to
Processor or the Company or change any of its places of business.
Section 7.8 Merchant Not Indebted to Company. The Merchant is not a debtor of the Company as of the date of this Agreement.
Section 7.9 Exclusive Use of Processor. Merchant understands that the services of the Processor is the exclusive means by which the
Merchant can process its credit card transactions.
Section 7.10 Merchant shall provide its business banking information to the Company. Merchant represents and acknowledges that it utilizes one
bank account for the purpose of running its business, and all receivables are deposited into this account. If other bank or more than one account is
utilized by the Merchant, the additional bank information shall be provided to the Company.
8. Events of Default
Section 8.1 The occurrence of any of the following acts or events will constitute an Event of Default: (a) if Merchant fails to meet its
obligations or fails to deliver the receivables when due; (b) if Merchant fails to make any remittance required by this Agreement; (c) if
Merchant commits any breach of any of the terms, representations, warranties, covenants, conditions or provisions of this Agreement, or of any
present or future supplement or amendment hereto or of any other agreement between the Company and Merchant; (d) if Merchant becomes
insolvent or unable to meet Merchant’s debts as they mature; (e) if Merchant fails to pay when due any material obligations or liabilities owing by
Merchant to any person or entity (including without limitation, any federal and state taxes); (f) if Merchant delivers to Company a false financial
statement or if any representation, warranty, certification, or other statement made by Merchant to Company is false in any material respect when
made; (g) if Merchant calls, or has called by a third party, a meeting of creditors; (h) if any bankruptcy proceeding, insolvency arrangement or
similar proceeding is commenced by or against Merchant; (i) if Merchant suspends or discontinues doing business for any reason; (j) if a receiver or
trustee of any kind is appointed for Merchant or any of Merchant’s property; (k) if any guarantor of Merchant’s Obligations dies or becomes
insolvent or has commenced by or against such guarantor any bankruptcy proceeding, insolvency arrangement or similar proceeding; (l) if any
guaranty of Merchant’s Obligations is terminated; (m) if any change of ownership occurs with respect to more than forty (40%) percent of
Merchant’s capital stock, assets or ownership interest; or (n) if a notice of lien, money judgment, levy, assessment, seizure or writ, or warrant of
attachment is entered or filed against Merchant or with respect to the Accounts or any other collateral in which Merchant has granted
Company a security interest; (o) if Merchant sells, leases, transfers or otherwise disposes of all or substantially all of Merchant’s property or
assets, or consolidates with or merges into or with any corporation or entity; (p) if Merchant sells, transfers, assigns any part of the
Merchant’s daily receivables, or (q) if Merchant fails to perform its duties and obligations under the Agreement.
Section 8.2 Upon the occurrence and during the continuance of an Event of Default, Company will have the right to terminate this
Agreement and all other arrangements existing between Company forthwith and without notice, and the obligations will mature and become
immediately due and deliverable to Company. In addition, Company will have all of the rights of a secured party under the Uniform
Commercial Code, including, without limitation, the right to take possession of any collateral in which Company has a security interest and
to dispose of same at public or private sale and Merchant will be liable for any deficiency. Company will not be required to proceed against
any collateral but may proceed against Merchant directly.
Section 8.3 Should the Merchant go default, a fee amount of $5,000.00 would be added to the outstanding balance, in accordance to Section 8.1
and Section 8.2.
9. Term and Termination
This Agreement will continue in force and effect until terminated by either party hereto giving the other party not less than sixty (60) days
prior written notice thereof, or until the obligations of the Merchant are fully paid; provided, however, that Merchant will not terminate this
Agreement so long as Merchant is obligated to the Company in connection with agreements between Merchant and Company.
Notwithstanding any such written notice of termination, Merchant’s and Company’s respective rights and obligations arising out of
transactions having their inception prior to the date of termination of this Agreement and all terms, provisions and conditions hereof,
including but not limited to, the security interests hereinabove granted to the Company (including the rights to the receivables arising,
acquired or created after the date of termination of this Agreement), will continue in full force and effect until all obligations have been paid in full.
All of the representations, warranties and indemnities and covenants made by Merchant herein will survive the termination of this Agreement.
10. ADDITIONAL TERMS.
Section 10.1 Sale of Future Receivables. Merchant and the Company agree that the Purchase Price paid by the Company is in exchange for
the Specified Amount of Future Receivables and is not intended to be, nor shall it be construed as, a loan from the Company to Merchant.
Section 10.2 No Right to Repurchase. Merchant acknowledges that it has no right to repurchase the Specified Amount of Future Receivables
from the Company.
Section 10.3 Term of Agreement. This Agreement shall be in full force and effect until the Specified Amount of Future Receivables has been
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delivered by Merchant to the Company.
Section 10.4 Rescission of Agreement. Merchant agrees that in the event that the representations and warranties in Section 7.2 is not true and
correct, the Company shall be entitled to rescind this Agreement and to the return (and Merchant agrees to so return) of the
Purchase Price less any cash attributable to Future Receivables that has been received by the Company. Merchant agrees that the Company
may automatically debit such rescission amount from Merchant’s bank account via the automated clearing house system, wire transfer or
credit card processor.
Section 10.5 Remedies. In the event that any of the representations and warranties contained in this Agreement are not true and correct or in the
event of a breach of any of the covenants contained in this Agreement, including the Merchant Contractual Covenants, the Company
shall be entitled to all remedies available under law, including but not limited to the right to non-judicial foreclosure. In the event that
Merchant breaches the specified Merchant Contractual Covenant(s) on the face of this Agreement, the Merchant agrees that the Company
will be entitled to, but not limited to, damages equal to the amount by which the cash attributable to the Specified Amount of Future
Receivables exceed the amount of cash received from Future Receivables that have previously been delivered by Merchant to the Company
under this Agreement. Merchant hereby agrees the Company may automatically debit such damages from Merchant’s bank account via an
automated clearing house system or wire transfer.
Section 10.6 UCC-1 Financing Statement. To secure the performance of the Merchant Contractual Covenants and all of the other obligations
of the Merchant to the Company under this Agreement, Merchant grants to Company a continuing priority security interest, subject only to
the security interest of the Processor, if any, in the following property of the Merchant: (a) All accounts, chattel paper, documents,
equipment, general intangibles, instruments, inventory wherever located, now or hereafter owned or acquired by the Merchant, (b) All
trademarks, trade names, service marks, logos and other sources of business identifiers, and all registrations, recordings and applications
with the U.S. Patent and Trademark Office and all renewals, reissues and extensions thereof (collectively “Trademarks”) whether now
owned or hereafter acquired, together with any written agreement granting any right to use any Trademarks; and (c) All proceeds, as that
term is defined in Article 9 of the Uniform Commercial Code. Merchant understands that the Company will have the right to file one or
more UCC-l Financing Statements prior to or at any time after each sale of Future Receivables in order to perfect the interest created under
the UCC upon the sale. The UCC-1 Financing Statements will state that the sale of the Future Receivables is intended to be a sale and not an
assignment for security.
11. MISCELLANEOUS.
Section 11.1 Modifications and Amendments. No modification, amendment, or waiver of any provision of this Agreement shall be effective
unless the same shall be in writing and signed by the party affected.
Section 11.2 Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be delivered by mail,
overnight delivery or hand delivery to the respective parties to this Agreement. Notices to the Company shall be sent to the following
address: Diamond Advances, Inc. 1979 Marcus Avenue Suite 210 Lake Success NY 11042 E-mail: info@diamondadvances.com Phone: 516-412-7771
Section 11.3 Waiver; Remedies. No failure on the part of the Company to exercise, and no delay in exercising, any right under this
Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right under this Agreement include any other or
future exercise of any other right. The remedies provided hereunder are cumulative and not exclusive of any remedies provided by law or
equity.
Section 11.4 No Assignment/Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of Merchant, the
Company and their respective successors and assigns, except that Merchant shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Company which consent may be withheld in the Company’s sole discretion. The
Company reserves the right to assign this Agreement with or without prior notice to Merchant.
Section 11.5 Attorney Fees. Should any litigation be commenced between the Parties herein concerning this Agreement, or the rights and
duties of the Parties in connection therewith, the party prevailing in that litigation shall be entitled, in addition to any other relief that may be
granted, to a reasonable sum for attorneys’ fees in that litigation. The amount of this sum shall be fixed by the court either as part of the
costs of litigation or in a separate action brought for that purpose. The Company shall be entitled to reasonable costs and expenses, including
reasonable attorneys’ fees, which may be incurred in the collection of any amount owing by Merchant to the Company herein, regardless of
whether any litigation has been commenced. Any such amount owing as costs and expenses of collection may, in the discretion of the Company, be
added to the Specified Percentage and be collected from the Processor from Future Receivables.
Section 11.6 Survival of Representations, etc. All 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.
Section 11.7 Partial Invalidity. In case any one or more of the provisions contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in
any way be affected or impaired thereby.
Section 11.8 Severability of Obligations. The obligations of each party hereto are independent obligations, and the failure of any party to
perform the obligations herein agreed to be performed by that party shall not excuse any other party from performing his obligations
hereunder.
Section 11.9 Entire Agreement. This Agreement contains the entire agreement and understanding between Merchant and the Company and
supersedes all prior agreements and understandings relating to the subject matter thereof unless otherwise specifically reaffirmed or restated
herein.
Section 11.10 Jury Trial Waiver. The Parties hereto waive trial by jury in any court in any suit, which this Agreement is a part or the
enforcement hereof, except where such waiver is prohibited by law or deemed by a court of law to be against public policy. The parties
hereto acknowledge that each makes this waiver knowingly, willingly, and voluntarily, and without duress, and only after extensive
consideration of the ramifications of this waiver with their attorneys.
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Section 11.11 Certified Mailing. Additionally, merchant and guarantor agrees that any summons and/or complaint or other process to commence
any litigation by Diamond Advances, Inc. will be promptly served if mailed by certified mail, return receipt requested, to the mailing address(es)
listed on page 1 of this agreement.
Section 11.12 Binding Effect; Governing Law, Venue, and Jurisdiction. This Agreement shall be binding upon and inure to the benefit of
Merchant, DAI, and their respective successors and assigns, except that Merchant shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of DAI which consent may be withheld in DAI’s sole discretion. DAI reserves the rights to assign
this Agreement with or without prior written notice to Merchant. This Agreement shall be governed by and construed in accordance with the laws
of the State of New York, without regards to any applicable principles of conflicts of law. Any suit, action, or proceeding arising out of or relating to
this Agreement or the transaction contemplated herein or the interpretation, performance, or breach hereof, shall be instituted in any federal or
state court sitting in the State of New York (the “Acceptable Forums”). Merchant agrees that the Acceptable Forums are convenient to it, and
submits to the personal jurisdiction of the Acceptable Forums and waives any and all objections to jurisdiction or venue in the Acceptable Forums.
Should such proceeding be initiated by Merchant in any other forum, Merchant waives any right to oppose any motion or application made
by DAI to dismiss such proceeding, to remove and/or transfer the proceeding to an Acceptable Forum, and for an anti-suit injunction against such
proceeding (which DAI may make in the Acceptable Forums). ADDITIONALLY, MERCHANT AND EACH GUARANTOR WAIVE PERSONAL SERVICE OF
ANY SUMMONS AND/OR COMPLAINT OR OTHER PROCESS TO COMMENCE ANY LITIGATION AND AGREE THAT SERVICE OF SUCH DOCUMENT SHALL
BE EFFECTIVE AND COMPLETE IF MAILED BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED TO THE ADDRESS(ES) LISTED ON PAGE 1 OF THIS
AGREEMENT. MERCHANT WILL THEN HAVE 30 CALENDAR DAYS AFTER SERVICE IS COMPLETE IN WHICH TO RESPOND.
MERCHANT
I represent that I am authorized to sign this Agreement for Merchant and that the information provided in this Agreement and all of
the Company’s forms are true and accurate in all respects. If the information is false or inaccurate, the Merchant shall be deemed to
be in material breach of all agreements between the Merchant and the Company, and the Company shall be entitled to all remedies
available under law.
ANY MISREPRESENTATION MADE BY MERCHANT OR OWNER IN CONNECTION WITH THIS AGREEMENT MAY CONSTITUTE A
SEPARATE CAUSE OF ACTION FOR FRAUD OR INTENTIONAL MISREPRESENTATION
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above as the
“Effective Date”.
Frank Lovell Hunter
FrankHunter
Merchant (#1) FrankHunter (Jan 24, 2024 15:26 CST)
Print Name Signature
Merchant (#2)
Print Name Signature
Owner (#1) Frank Lovell Hunter
FrankHunter
FrankHunter (Jan 24, 2024 15:26 CST)
Print Name Signature
Owner (#2)
Print Name Signature
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PERSONAL GUARANTY
1. The undersigned (individually, and collectively if more than one, referred to herein as “Guarantor”), whose address and
Social Security/tax identification have been provided, as a material inducement to and in consideration of Diamond Advances, Inc. entering into the
Jan 24, 2024 with __________
Purchase and Sale of Future Receivables Agreement (“Agreement”) dated ______________ HUNTER II ENTERPRISES, INC.
_________________________,
hereby unconditionally, irrevocably and jointly and severally guarantees the full and punctual payment, performance and observance of each and
all of the terms, covenants and obligations of Merchant and each successor and assign of Merchant, of whatever kind and nature, under or in
connection with the Agreement or any agreement, instrument or document executed by Merchant in connection with the Agreement as such the
Agreement or other agreement, instrument or document may hereafter be amended or modified, whether or not Guarantor has notice or
knowledge of or consents to such amendment or modification, including but not limited to the payment and all other sums now or hereafter
becoming due or payable under the Agreement, without any deduction whatsoever, whether by reason of offset, counterclaim or otherwise.
2. The liability of Guarantor under this Guaranty is primary and a separate action may be brought and prosecuted against any Guarantor
whether or not an action is brought or prosecuted or a judgment obtained against any other Guarantor or Merchant. Guarantor further agrees that
it may be joined in any action against and in connection with the obligations of Merchant under the Agreement and that recovery may be had
against Guarantor in any such action. If Merchant defaults under the Agreement, the Company may proceed immediately against Guarantor or
Merchant, or Guarantor pursuant to this Guaranty. Company may enforce this Guaranty against Guarantor without giving previous notice to
Merchant or Guarantor, and without making any demand on either of them. This Guaranty shall not be affected by Company’s failure or delay to
enforce any of its rights hereunder or under the Agreement. Guarantor hereby waives notice of or the giving of its content to any amendments
which may hereafter be made to the terms of the Agreement, and this Guaranty shall guarantee the performance of the Agreement as amended,
or as the same may be assigned from time to time.
3. Guarantor waives the right to require Company (i) to proceed against Merchant or any other Guarantor or any other person or entity
liable to Company or to proceed under any other remedy Company has before proceeding against Guarantor; (ii) to pursue any other remedy in
Company’s power. Guarantor waives all right to assert or plead any statute of limitations as to or relating to this Guaranty or the Agreement.
Guarantor waives any defense based upon or existing by reason of any disability of Merchant, and any other defense based upon or arising out of
the termination, invalidity or unenforceability of the Agreement or Merchant’s liability or Company’s receipt or release of any security. Until all of
the Merchant’s obligations to Company have been discharged in full, Guarantor shall have no right of subrogation against Merchant. Guarantor
waives its right to enforce any remedies that Company now has, or later may have, against Merchant. Guarantor waives any right to participate in
any security now or hereafter held by Company.
Guarantor waives all presentments, demands for performance, notices of non-performance, protests, notices of protests, notices of dishonor, and
notices of acceptance of this Guaranty, and waives all notices of existence, creation or incurring of new or additional obligations from Merchant to
Company.
4. No assignment under said Agreement shall relieve Guarantor of any obligations under this Guaranty whether or not Guarantor has notice
of or consents to any such assignment. This Guaranty shall be continuing and shall remain in full force and effect so long as any obligations which
are subject to this Guaranty continue to exist.
5. If Company is required to enforce Guarantor’s obligations by legal proceedings, Guarantor shall pay to Company all costs incurred,
including, without limitation, Company’s reasonable attorneys’ fees and all costs and other expenses incurred in any collection or attempted
collection or any negotiations relative to the obligations hereby guaranteed, or in enforcing this Guaranty against the undersigned, individually or
jointly.
6. This Guaranty shall continue unchanged by any bankruptcy, reorganization or insolvency of the Merchant or any successor or assignee
thereof or by any disaffirmation or abandonment by a trustee of Merchant.
GUARANTOR/CO-GUARANTOR
FrankHunter
Guarantor (#1) Frank Lovell Hunter FrankHunter (Jan 24, 2024 15:26 CST)
Print Name Signature
Co-Guarantor (#2)
Print Name Signature
Page 6 of 9 FH
Initial _________ Initial ________
FH
V4.103023
202404181472 IndexNO.
INDEX #: E2024006629
E2024006629
FILED: MONROE COUNTY CLERK 04/18/2024 11:18 AM
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/18/2024
Authorization For ACH Electronic Funds Transfer Payments
This Authorization Agreement for Direct Deposit (ACH Credit) and Direct Payments (ACH Debits) is part of (and
incorporated by reference into) the Merchant Agreement. Seller should keep this important legal document for
Seller’s records.
I hereby authorize Diamond Advances, Inc. (“DAI”) to initiate debit/credit entries to the business bank account specified below for all
payments due to DAI including any returned unpaid item fees due and the Financial Institution at which the account is held to debit/credit
the same to such account. This authority is to remain in full force and effect until DAI and the subject Financial Institution have received
written notification from the business of its termination in such time and in such manner as to afford DAL and the Financial Institution a
reasonable opportunity to act on it.
DISBURSMENT OF ADVANCE PROCEEDS.
By signing below, Seller authorizes Buyer to disburse the Advance proceeds less the amount of any applicable fees upon Advance approval
by initiating an ACH credit to the checking account indicated below (or a substitute checking account Seller later identifies and is acceptable
to Buyer) (hereinafter referred to as the “Designated Checking Account”) This authorization is to remain in full force and effect until Buyer
has received written notification from Seller of its termination in such time and in such manner as to afford Buyer and Seller’s depository
bank a reasonable opportunity to act on it.
BUSINESS PURPOSE ACCOUNT.
By signing below, Seller attests that the Designated Checking Account was established for business purposes and not primarily for personal,
family or household purposes.
MISCELLANEOUS
Buyer is not responsible for any fees charged by Seller’s bank as the result of credits or debits initiated under this agreement. The
origination of ACH transactions to Seller’s account must comply with the provisions of U.S. law.
HUNTER II ENTERPRISES,
Business Name: _____________ INC. dba HUNTER II ENTERPRISES
___________________________
Name on Account: Frank Lovell Hunter
_______________________________________
Best Contact Phone Number: _______________________________
Authorized Signer Name printed: Frank
______Lovell Hunter
_______________________
Owner
Title: ____________________________________________________
→Signature: _____________________________Date:__________
FrankHunter 01/24/2024
FrankHunter (Jan 24, 2024 15:26 CST)
Authorized Signer Name printed: _______ _____
Preview
FILED: MONROE COUNTY CLERK 04/18/2024 11:18 AM INDEX NO. E2024006629 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/18/2024 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3830394 Book Page CIVIL Return To: No. Pages: 13 JEFFREY MICHAEL PARRELLA 14 Wall Street Instrument: EXHIBIT(S) 20th Floor New York, NY 10005 Control #: 202404181472 Index #: E2024006629 Date: 04/18/2024 DIAMOND ADVANCES, INC. Time: 1:40:41 PM HUNTER II ENTERPRISES, INC. DBA HUNTER II ENTERPRISES HUNTER, FRANK LOVELL Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 202404181472 Index # INDEX : E2024006629 NO. E2024006629 FILED: MONROE COUNTY CLERK 04/18/2024 11:18 AM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/18/2024 1979 Marcus Avenue | Suite 210 | Lake Success | NY | 11042 | P (516) 412-7771 | F (516) 412-7772 www.diamondadvances.com MERCHANT AGREEMENT 24th This Purchase and Sale of Future Receivables Agreement (“Agreement”) is made and effective this _________ January, 2024 (the day of______________ “effective date”), by and between HUNTER _______________________________ II ENTERPRISES, INC. (“Merchant”) and Diamond Advances, Inc. (the “Company”) and the Company shall jointly be referred to as the parties in this Agreement. Merchant's Legal Name: HUNTER II ENTERPRISES, INC. _________________________________ Merchant's DBA: ________________________________________ HUNTER II ENTERPRISES 12601 Perimeter Road Physical Address: ______________________________________ 214-770-9485 Business Phone: (_____)___________________ Dallas, TX 75228 ______________________________________ Business Fax: (_____)__________________ Mailing Address: _____________________________ frank.hunter@cableitsolutions.com Business Email: __________________________________ _____________________________ 38-3986702 Federal Tax ID: _______________________ Owner/Principal: Frank Lovell Hunter ___________________________ , Cell Phone(s):(____)_________________(_____)__________________ Owner/Principal (#2): _______________________ PURCHASE AND SALE OF FUTURE RECEIVABLES Merchant wishes to sell, and the Company wishes to purchase, the agreed amount of the Merchant’s future receivables generated during a certain foreseeable future at the agreed price under the terms and conditions as set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and agreements contained within this Agreement, it is hereby agreed as follows: I. Effective upon payment by the Company to the Merchant of the purchase price specified below (the “Purchase Price”), the Merchant sells to the Company, all of Merchant’s right, title and interest in the applicable future receivables (“Future Receivables”) of the Merchant in the amount specified below as “Specified Amount.” In this Agreement, Specified Amount shall sometimes be referred to as obligations. Purchase Price: Specified Percentage: Daily Payment: Purchased Amount: 5000.00 $____________ 10 _____% 93.13 $_______ 7450.00 $_____________ 1. Section 1.1 The Company shall have the right to collect the Specified Amount from the Merchant, using Automatic Clearing House (ACH), until the Specified Amount from the Merchant’s future receivables has been delivered by Merchant to the Company. The parties agree that the Company will collect the certain percentage amount based on the Merchant’s average sales _____ 10 % (“Specified Percentage”) of the Merchant’s future daily receivables, or the amount specifically agreed between the parties, whichever is greater. However, the Company may, in its sole discretion, may choose to collect the fixed amount requested by the Merchant each day, which is less than the Specified Percentage for its processing convenience only. By collecting the amount less than agreed between the parties, the Company does not waive its right to collect the amount specifically agreed between the parties, and may choose to process the maximum amount agreed to between the parties each day. Since the Company is purchasing future receivables at a discounted rate, the election to collect the less than the Specified Percentage of the daily receivables by the Company does not impose any obligation to pay interest on the Merchant. The Purchase Price is agreed between the parties based on Merchant’s representation, warranty and financial documents related to the level of receivables generated on average each day. Merchant specifically agrees to stay in business and generate receivables for the term of no less than one year from the date it receives the Purchase Price from the Company. Merchant (#1) Frank Lovell Hunter FrankHunter FrankHunter (Jan 24, 2024 15:26 CST) Print Name Signature Merchant (#2) Print Name Signature Owner (#1) Frank Lovell Hunter FrankHunter FrankHunter (Jan 24, 2024 15:26 CST) Print Name Signature Owner (#2) Print Name Signature Page 1 of 9 FH FH Initial _________ Initial ________ V4.103023 202404181472 IndexNO. INDEX #: E2024006629 E2024006629 FILED: MONROE COUNTY CLERK 04/18/2024 11:18 AM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/18/2024 Section 1.2 Upon any default by the Merchant, the Company shall have the right to collect the Specified Amount from the Merchant, using a credit card processor, until the Specified Amount from the Merchant’s future credit card receivables has been delivered by Merchant to the Company. The parties agree that the Company will collect the amount not exceeding the Specified Percentage of the Merchant’s future daily receivables as agreed above under such circumstances this section becomes applicable. In order to allow the Company to exercise this option, the Merchant specifically agrees to enter into a credit card processing agreement reasonably acceptable to the Company to obtain credit and processing services, and must authorize the Processor to pay the credit card receivables collected in the sum attributable to the Specified Percentage of each of such amount collected to the Company rather than to the Merchant until the Company receives the Specified Amount from the Processor. The Merchant shall not change its processor or enter into processing agreements with other processors without Company’s prior written consent. Section 1.3 SPECIAL POWER OF ATTORNEY In order to ensure the Company with the collection of the future receivables using a credit card processor, Merchant gives a special power of attorney authorizing the Company to communicate with Merchant’s credit card processor for the purpose of demanding the delivery of Merchant’s future receivables, statements, account information, balance, daily activities. This special power of attorney may not be revoked by the Merchant until all agreed to future receivables have been delivered to the Company 2. No Waiver of Rights. There shall be effected no waiver by failure on the part of the Company to exercise, or delay in exercising, any right under this Agreement, nor shall any single or partial exercise by the Company of any right under this Agreement preclude any other future exercise of any right. The remedies provided hereunder are cumulative and not exclusive of any remedies provided by law or equity. 3. The Merchant, including but not limited to its owners, shareholders, partners, directors or officers, hereby guarantees Merchant’s performance of all the covenants made by Merchant in this Agreement, including the following covenants (“Merchant Contractual Covenants”). Merchant agrees: (i) To conduct its business consistent with past practice; (ii) To exclusively use Processor for the processing of all of its credit card transactions, if applicable;(iii) Not to take any action to discourage the use of credit cards or to permit any event to occur which could have an adverse effect on the use, acceptance or authorization of credit cards for the purpose of Merchant’s services and products;(iv) Not to change its arrangements with Processor in any way which is adverse to the Company; (v) Not to take any action that has the effect of causing the credit card processor through which the major credit cards are settled to be changed from Processor to another credit card processor; and (vi) Not to sell, dispose, convey or otherwise transfer its business or assets without the express prior written consent of the Company and the assumption of all of Merchant’s obligations under this Agreement pursuant to documentation reasonably satisfactory to the Company. 4. Used in this Agreement, “day” and “daily” shall refer to and mean a weekday that the Merchant is transacting its normal business including any national or local holiday. Unless ACH or credit card processor allows the delivery of the receivables created on holidays, the receivables created on a holiday shall be delivered to the Company on the first business day following the holiday. 5. The Company will charge to Merchant’s account Company’s standard origination fee on all wire transfers and/or checks sent via FedEx, in the amount of 5%-10% based on the advance amount, charges for returned items in the amount of $35 per occurrence, and all other bank charges (Refer to Appendix for more details). Merchant agrees to bear the cost of all filing fees, filing taxes, search reports, legal fees and other charges incurred by the Company in the perfection, protection, preservation and enforcement of Company’s rights in any collateral in which Merchant has granted the security interest to the Company. Merchant also agrees to promptly pay all fees, costs and expenses (including, without limitation, attorney’s fees and allocated costs of internal counsel) incurred by the Company in connection with the creation, or administration of this Agreement or any related instructions, documents or agreements, all costs, fees including the negotiation and documentation of any waivers, forbearances, amendments or other modifications relating to this Agreement or any such related agreements, and all fees, costs and expenses will be part of the obligations, will be payable on demand and will be secured by any collateral in which Merchant has granted to the Company. The Company may also, at its option, charge Merchant’s account for all amounts owing by Merchant to the Company under this Agreement and for all other obligations. 6. Merchant and each of the below-signed authorizes the Company and its agents and representatives and any credit reporting agency employed by the Company to investigate any references given or any other statements of data obtained from or about Merchant or any of its principals for the purpose of this Agreement and to pull credit reports at any time now or in the future on the Merchant and Owner/Guarantor(s). 7. ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS. Merchant, its owners and principals represent, warrant and covenant that as of this date and during the term of this Agreement: Section 7.1 Merchant Contractual Covenants. Merchant agrees to comply with the Merchant Contractual Covenants set forth on the face of this Agreement. Section 7.2 Information Regarding Business. The information (financial and other) provided by or on behalf of Merchant to the Company in connection with the execution of or pursuant to this Agreement is true and correct in all material respects. Merchant shall furnish the Company with any additional information, documents or instruments which the Company may request from time to time. Merchant’s representation and warranty also includes that Merchant will be in business for the foreseeable future, Merchant is and has been profitable, there is no claim pending or expected against Merchant, and Merchant’s financial situation is not expected to change in the foreseeable future. Page 2 of 9 FH FH Initial _________ Initial ________ V4.103023 202404181472 IndexNO. INDEX #: E2024006629 E2024006629 FILED: MONROE COUNTY CLERK 04/18/2024 11:18 AM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/18/2024 Section 7.3 Reliance on Information. Merchant acknowledges that the information (financial and other) provided by Merchant has been relied upon by the Company in connection with its decision to purchase the Future Receivables. Section 7.4 Governmental Approvals. Merchant possesses and is in compliance with all permits, licenses, approvals, consents and other authorizations necessary to conduct its business. Merchant is in compliance with any and all applicable federal, state and local laws and regulations. Merchant possesses all requisite permits, authorizations and licenses to own, operate and lease its properties and to conduct the business in which it is presently engaged. Section 7.5 Authorization. Merchant, and the person(s) signing this Agreement on behalf of Merchant, have full power and authority to enter into and perform the obligations under this Agreement and the Processing Agreement. This Agreement and the Processing Agreement have been duly authorized by all necessary and proper action, has been executed by and on behalf of Merchant and constitutes a valid and binding obligation of Merchant. Section 7.6 Insurance. Merchant will maintain insurance in such amounts and against such risks as are consistent with past practice and shall show proof of such insurance upon the reasonable request of the Company. Section 7.7 Change of Name or Location. Merchant will not conduct Merchant’s business under any name other than as disclosed to Processor or the Company or change any of its places of business. Section 7.8 Merchant Not Indebted to Company. The Merchant is not a debtor of the Company as of the date of this Agreement. Section 7.9 Exclusive Use of Processor. Merchant understands that the services of the Processor is the exclusive means by which the Merchant can process its credit card transactions. Section 7.10 Merchant shall provide its business banking information to the Company. Merchant represents and acknowledges that it utilizes one bank account for the purpose of running its business, and all receivables are deposited into this account. If other bank or more than one account is utilized by the Merchant, the additional bank information shall be provided to the Company. 8. Events of Default Section 8.1 The occurrence of any of the following acts or events will constitute an Event of Default: (a) if Merchant fails to meet its obligations or fails to deliver the receivables when due; (b) if Merchant fails to make any remittance required by this Agreement; (c) if Merchant commits any breach of any of the terms, representations, warranties, covenants, conditions or provisions of this Agreement, or of any present or future supplement or amendment hereto or of any other agreement between the Company and Merchant; (d) if Merchant becomes insolvent or unable to meet Merchant’s debts as they mature; (e) if Merchant fails to pay when due any material obligations or liabilities owing by Merchant to any person or entity (including without limitation, any federal and state taxes); (f) if Merchant delivers to Company a false financial statement or if any representation, warranty, certification, or other statement made by Merchant to Company is false in any material respect when made; (g) if Merchant calls, or has called by a third party, a meeting of creditors; (h) if any bankruptcy proceeding, insolvency arrangement or similar proceeding is commenced by or against Merchant; (i) if Merchant suspends or discontinues doing business for any reason; (j) if a receiver or trustee of any kind is appointed for Merchant or any of Merchant’s property; (k) if any guarantor of Merchant’s Obligations dies or becomes insolvent or has commenced by or against such guarantor any bankruptcy proceeding, insolvency arrangement or similar proceeding; (l) if any guaranty of Merchant’s Obligations is terminated; (m) if any change of ownership occurs with respect to more than forty (40%) percent of Merchant’s capital stock, assets or ownership interest; or (n) if a notice of lien, money judgment, levy, assessment, seizure or writ, or warrant of attachment is entered or filed against Merchant or with respect to the Accounts or any other collateral in which Merchant has granted Company a security interest; (o) if Merchant sells, leases, transfers or otherwise disposes of all or substantially all of Merchant’s property or assets, or consolidates with or merges into or with any corporation or entity; (p) if Merchant sells, transfers, assigns any part of the Merchant’s daily receivables, or (q) if Merchant fails to perform its duties and obligations under the Agreement. Section 8.2 Upon the occurrence and during the continuance of an Event of Default, Company will have the right to terminate this Agreement and all other arrangements existing between Company forthwith and without notice, and the obligations will mature and become immediately due and deliverable to Company. In addition, Company will have all of the rights of a secured party under the Uniform Commercial Code, including, without limitation, the right to take possession of any collateral in which Company has a security interest and to dispose of same at public or private sale and Merchant will be liable for any deficiency. Company will not be required to proceed against any collateral but may proceed against Merchant directly. Section 8.3 Should the Merchant go default, a fee amount of $5,000.00 would be added to the outstanding balance, in accordance to Section 8.1 and Section 8.2. 9. Term and Termination This Agreement will continue in force and effect until terminated by either party hereto giving the other party not less than sixty (60) days prior written notice thereof, or until the obligations of the Merchant are fully paid; provided, however, that Merchant will not terminate this Agreement so long as Merchant is obligated to the Company in connection with agreements between Merchant and Company. Notwithstanding any such written notice of termination, Merchant’s and Company’s respective rights and obligations arising out of transactions having their inception prior to the date of termination of this Agreement and all terms, provisions and conditions hereof, including but not limited to, the security interests hereinabove granted to the Company (including the rights to the receivables arising, acquired or created after the date of termination of this Agreement), will continue in full force and effect until all obligations have been paid in full. All of the representations, warranties and indemnities and covenants made by Merchant herein will survive the termination of this Agreement. 10. ADDITIONAL TERMS. Section 10.1 Sale of Future Receivables. Merchant and the Company agree that the Purchase Price paid by the Company is in exchange for the Specified Amount of Future Receivables and is not intended to be, nor shall it be construed as, a loan from the Company to Merchant. Section 10.2 No Right to Repurchase. Merchant acknowledges that it has no right to repurchase the Specified Amount of Future Receivables from the Company. Section 10.3 Term of Agreement. This Agreement shall be in full force and effect until the Specified Amount of Future Receivables has been Page 3 of 9 FH Initial _________ FH Initial ________ V4.103023 202404181472 IndexNO. INDEX #: E2024006629 E2024006629 FILED: MONROE COUNTY CLERK 04/18/2024 11:18 AM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/18/2024 delivered by Merchant to the Company. Section 10.4 Rescission of Agreement. Merchant agrees that in the event that the representations and warranties in Section 7.2 is not true and correct, the Company shall be entitled to rescind this Agreement and to the return (and Merchant agrees to so return) of the Purchase Price less any cash attributable to Future Receivables that has been received by the Company. Merchant agrees that the Company may automatically debit such rescission amount from Merchant’s bank account via the automated clearing house system, wire transfer or credit card processor. Section 10.5 Remedies. In the event that any of the representations and warranties contained in this Agreement are not true and correct or in the event of a breach of any of the covenants contained in this Agreement, including the Merchant Contractual Covenants, the Company shall be entitled to all remedies available under law, including but not limited to the right to non-judicial foreclosure. In the event that Merchant breaches the specified Merchant Contractual Covenant(s) on the face of this Agreement, the Merchant agrees that the Company will be entitled to, but not limited to, damages equal to the amount by which the cash attributable to the Specified Amount of Future Receivables exceed the amount of cash received from Future Receivables that have previously been delivered by Merchant to the Company under this Agreement. Merchant hereby agrees the Company may automatically debit such damages from Merchant’s bank account via an automated clearing house system or wire transfer. Section 10.6 UCC-1 Financing Statement. To secure the performance of the Merchant Contractual Covenants and all of the other obligations of the Merchant to the Company under this Agreement, Merchant grants to Company a continuing priority security interest, subject only to the security interest of the Processor, if any, in the following property of the Merchant: (a) All accounts, chattel paper, documents, equipment, general intangibles, instruments, inventory wherever located, now or hereafter owned or acquired by the Merchant, (b) All trademarks, trade names, service marks, logos and other sources of business identifiers, and all registrations, recordings and applications with the U.S. Patent and Trademark Office and all renewals, reissues and extensions thereof (collectively “Trademarks”) whether now owned or hereafter acquired, together with any written agreement granting any right to use any Trademarks; and (c) All proceeds, as that term is defined in Article 9 of the Uniform Commercial Code. Merchant understands that the Company will have the right to file one or more UCC-l Financing Statements prior to or at any time after each sale of Future Receivables in order to perfect the interest created under the UCC upon the sale. The UCC-1 Financing Statements will state that the sale of the Future Receivables is intended to be a sale and not an assignment for security. 11. MISCELLANEOUS. Section 11.1 Modifications and Amendments. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless the same shall be in writing and signed by the party affected. Section 11.2 Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be delivered by mail, overnight delivery or hand delivery to the respective parties to this Agreement. Notices to the Company shall be sent to the following address: Diamond Advances, Inc. 1979 Marcus Avenue Suite 210 Lake Success NY 11042 E-mail: info@diamondadvances.com Phone: 516-412-7771 Section 11.3 Waiver; Remedies. No failure on the part of the Company to exercise, and no delay in exercising, any right under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right under this Agreement include any other or future exercise of any other right. The remedies provided hereunder are cumulative and not exclusive of any remedies provided by law or equity. Section 11.4 No Assignment/Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of Merchant, the Company and their respective successors and assigns, except that Merchant shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of the Company which consent may be withheld in the Company’s sole discretion. The Company reserves the right to assign this Agreement with or without prior notice to Merchant. Section 11.5 Attorney Fees. Should any litigation be commenced between the Parties herein concerning this Agreement, or the rights and duties of the Parties in connection therewith, the party prevailing in that litigation shall be entitled, in addition to any other relief that may be granted, to a reasonable sum for attorneys’ fees in that litigation. The amount of this sum shall be fixed by the court either as part of the costs of litigation or in a separate action brought for that purpose. The Company shall be entitled to reasonable costs and expenses, including reasonable attorneys’ fees, which may be incurred in the collection of any amount owing by Merchant to the Company herein, regardless of whether any litigation has been commenced. Any such amount owing as costs and expenses of collection may, in the discretion of the Company, be added to the Specified Percentage and be collected from the Processor from Future Receivables. Section 11.6 Survival of Representations, etc. All 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. Section 11.7 Partial Invalidity. In case any one or more of the provisions contained in this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby. Section 11.8 Severability of Obligations. The obligations of each party hereto are independent obligations, and the failure of any party to perform the obligations herein agreed to be performed by that party shall not excuse any other party from performing his obligations hereunder. Section 11.9 Entire Agreement. This Agreement contains the entire agreement and understanding between Merchant and the Company and supersedes all prior agreements and understandings relating to the subject matter thereof unless otherwise specifically reaffirmed or restated herein. Section 11.10 Jury Trial Waiver. The Parties hereto waive trial by jury in any court in any suit, which this Agreement is a part or the enforcement hereof, except where such waiver is prohibited by law or deemed by a court of law to be against public policy. The parties hereto acknowledge that each makes this waiver knowingly, willingly, and voluntarily, and without duress, and only after extensive consideration of the ramifications of this waiver with their attorneys. Page 4 of 9 FH FH Initial _________ Initial ________ V4.103023 202404181472 IndexNO. INDEX #: E2024006629 E2024006629 FILED: MONROE COUNTY CLERK 04/18/2024 11:18 AM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/18/2024 Section 11.11 Certified Mailing. Additionally, merchant and guarantor agrees that any summons and/or complaint or other process to commence any litigation by Diamond Advances, Inc. will be promptly served if mailed by certified mail, return receipt requested, to the mailing address(es) listed on page 1 of this agreement. Section 11.12 Binding Effect; Governing Law, Venue, and Jurisdiction. This Agreement shall be binding upon and inure to the benefit of Merchant, DAI, and their respective successors and assigns, except that Merchant shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of DAI which consent may be withheld in DAI’s sole discretion. DAI reserves the rights to assign this Agreement with or without prior written notice to Merchant. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regards to any applicable principles of conflicts of law. Any suit, action, or proceeding arising out of or relating to this Agreement or the transaction contemplated herein or the interpretation, performance, or breach hereof, shall be instituted in any federal or state court sitting in the State of New York (the “Acceptable Forums”). Merchant agrees that the Acceptable Forums are convenient to it, and submits to the personal jurisdiction of the Acceptable Forums and waives any and all objections to jurisdiction or venue in the Acceptable Forums. Should such proceeding be initiated by Merchant in any other forum, Merchant waives any right to oppose any motion or application made by DAI to dismiss such proceeding, to remove and/or transfer the proceeding to an Acceptable Forum, and for an anti-suit injunction against such proceeding (which DAI may make in the Acceptable Forums). ADDITIONALLY, MERCHANT AND EACH GUARANTOR WAIVE PERSONAL SERVICE OF ANY SUMMONS AND/OR COMPLAINT OR OTHER PROCESS TO COMMENCE ANY LITIGATION AND AGREE THAT SERVICE OF SUCH DOCUMENT SHALL BE EFFECTIVE AND COMPLETE IF MAILED BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED TO THE ADDRESS(ES) LISTED ON PAGE 1 OF THIS AGREEMENT. MERCHANT WILL THEN HAVE 30 CALENDAR DAYS AFTER SERVICE IS COMPLETE IN WHICH TO RESPOND. MERCHANT I represent that I am authorized to sign this Agreement for Merchant and that the information provided in this Agreement and all of the Company’s forms are true and accurate in all respects. If the information is false or inaccurate, the Merchant shall be deemed to be in material breach of all agreements between the Merchant and the Company, and the Company shall be entitled to all remedies available under law. ANY MISREPRESENTATION MADE BY MERCHANT OR OWNER IN CONNECTION WITH THIS AGREEMENT MAY CONSTITUTE A SEPARATE CAUSE OF ACTION FOR FRAUD OR INTENTIONAL MISREPRESENTATION IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above as the “Effective Date”. Frank Lovell Hunter FrankHunter Merchant (#1) FrankHunter (Jan 24, 2024 15:26 CST) Print Name Signature Merchant (#2) Print Name Signature Owner (#1) Frank Lovell Hunter FrankHunter FrankHunter (Jan 24, 2024 15:26 CST) Print Name Signature Owner (#2) Print Name Signature Page 5 of 9 FH FH Initial _________ Initial ________ V4.103023 202404181472 IndexNO. INDEX #: E2024006629 E2024006629 FILED: MONROE COUNTY CLERK 04/18/2024 11:18 AM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/18/2024 PERSONAL GUARANTY 1. The undersigned (individually, and collectively if more than one, referred to herein as “Guarantor”), whose address and Social Security/tax identification have been provided, as a material inducement to and in consideration of Diamond Advances, Inc. entering into the Jan 24, 2024 with __________ Purchase and Sale of Future Receivables Agreement (“Agreement”) dated ______________ HUNTER II ENTERPRISES, INC. _________________________, hereby unconditionally, irrevocably and jointly and severally guarantees the full and punctual payment, performance and observance of each and all of the terms, covenants and obligations of Merchant and each successor and assign of Merchant, of whatever kind and nature, under or in connection with the Agreement or any agreement, instrument or document executed by Merchant in connection with the Agreement as such the Agreement or other agreement, instrument or document may hereafter be amended or modified, whether or not Guarantor has notice or knowledge of or consents to such amendment or modification, including but not limited to the payment and all other sums now or hereafter becoming due or payable under the Agreement, without any deduction whatsoever, whether by reason of offset, counterclaim or otherwise. 2. The liability of Guarantor under this Guaranty is primary and a separate action may be brought and prosecuted against any Guarantor whether or not an action is brought or prosecuted or a judgment obtained against any other Guarantor or Merchant. Guarantor further agrees that it may be joined in any action against and in connection with the obligations of Merchant under the Agreement and that recovery may be had against Guarantor in any such action. If Merchant defaults under the Agreement, the Company may proceed immediately against Guarantor or Merchant, or Guarantor pursuant to this Guaranty. Company may enforce this Guaranty against Guarantor without giving previous notice to Merchant or Guarantor, and without making any demand on either of them. This Guaranty shall not be affected by Company’s failure or delay to enforce any of its rights hereunder or under the Agreement. Guarantor hereby waives notice of or the giving of its content to any amendments which may hereafter be made to the terms of the Agreement, and this Guaranty shall guarantee the performance of the Agreement as amended, or as the same may be assigned from time to time. 3. Guarantor waives the right to require Company (i) to proceed against Merchant or any other Guarantor or any other person or entity liable to Company or to proceed under any other remedy Company has before proceeding against Guarantor; (ii) to pursue any other remedy in Company’s power. Guarantor waives all right to assert or plead any statute of limitations as to or relating to this Guaranty or the Agreement. Guarantor waives any defense based upon or existing by reason of any disability of Merchant, and any other defense based upon or arising out of the termination, invalidity or unenforceability of the Agreement or Merchant’s liability or Company’s receipt or release of any security. Until all of the Merchant’s obligations to Company have been discharged in full, Guarantor shall have no right of subrogation against Merchant. Guarantor waives its right to enforce any remedies that Company now has, or later may have, against Merchant. Guarantor waives any right to participate in any security now or hereafter held by Company. Guarantor waives all presentments, demands for performance, notices of non-performance, protests, notices of protests, notices of dishonor, and notices of acceptance of this Guaranty, and waives all notices of existence, creation or incurring of new or additional obligations from Merchant to Company. 4. No assignment under said Agreement shall relieve Guarantor of any obligations under this Guaranty whether or not Guarantor has notice of or consents to any such assignment. This Guaranty shall be continuing and shall remain in full force and effect so long as any obligations which are subject to this Guaranty continue to exist. 5. If Company is required to enforce Guarantor’s obligations by legal proceedings, Guarantor shall pay to Company all costs incurred, including, without limitation, Company’s reasonable attorneys’ fees and all costs and other expenses incurred in any collection or attempted collection or any negotiations relative to the obligations hereby guaranteed, or in enforcing this Guaranty against the undersigned, individually or jointly. 6. This Guaranty shall continue unchanged by any bankruptcy, reorganization or insolvency of the Merchant or any successor or assignee thereof or by any disaffirmation or abandonment by a trustee of Merchant. GUARANTOR/CO-GUARANTOR FrankHunter Guarantor (#1) Frank Lovell Hunter FrankHunter (Jan 24, 2024 15:26 CST) Print Name Signature Co-Guarantor (#2) Print Name Signature Page 6 of 9 FH Initial _________ Initial ________ FH V4.103023 202404181472 IndexNO. INDEX #: E2024006629 E2024006629 FILED: MONROE COUNTY CLERK 04/18/2024 11:18 AM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/18/2024 Authorization For ACH Electronic Funds Transfer Payments This Authorization Agreement for Direct Deposit (ACH Credit) and Direct Payments (ACH Debits) is part of (and incorporated by reference into) the Merchant Agreement. Seller should keep this important legal document for Seller’s records. I hereby authorize Diamond Advances, Inc. (“DAI”) to initiate debit/credit entries to the business bank account specified below for all payments due to DAI including any returned unpaid item fees due and the Financial Institution at which the account is held to debit/credit the same to such account. This authority is to remain in full force and effect until DAI and the subject Financial Institution have received written notification from the business of its termination in such time and in such manner as to afford DAL and the Financial Institution a reasonable opportunity to act on it. DISBURSMENT OF ADVANCE PROCEEDS. By signing below, Seller authorizes Buyer to disburse the Advance proceeds less the amount of any applicable fees upon Advance approval by initiating an ACH credit to the checking account indicated below (or a substitute checking account Seller later identifies and is acceptable to Buyer) (hereinafter referred to as the “Designated Checking Account”) This authorization is to remain in full force and effect until Buyer has received written notification from Seller of its termination in such time and in such manner as to afford Buyer and Seller’s depository bank a reasonable opportunity to act on it. BUSINESS PURPOSE ACCOUNT. By signing below, Seller attests that the Designated Checking Account was established for business purposes and not primarily for personal, family or household purposes. MISCELLANEOUS Buyer is not responsible for any fees charged by Seller’s bank as the result of credits or debits initiated under this agreement. The origination of ACH transactions to Seller’s account must comply with the provisions of U.S. law. HUNTER II ENTERPRISES, Business Name: _____________ INC. dba HUNTER II ENTERPRISES ___________________________ Name on Account: Frank Lovell Hunter _______________________________________ Best Contact Phone Number: _______________________________ Authorized Signer Name printed: Frank ______Lovell Hunter _______________________ Owner Title: ____________________________________________________ →Signature: _____________________________Date:__________ FrankHunter 01/24/2024 FrankHunter (Jan 24, 2024 15:26 CST) Authorized Signer Name printed: _______ _____