Preview
FILED: NASSAU COUNTY CLERK 04/22/2024 01:45 PM INDEX NO. 607044/2024
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/22/2024
LCF
The LCF Group
3000 Marcus Avenue, Suite 2W15, Lake Success, NY 11042
MERCHANTAGREEMENT
Agreement dated June 16, 2023 Between THE LCF GROUP, INC. (the Company) and the merchant listed below ("the Merchant")
MERCHANT INFORMATION
Merchant's Legal Name: ATL Logistics LLC
Merchant's DBA Name: ATL Logistics
Type of entity: LLC
Physical Address: 813 Barwick PI City: Willard State: Missouri Zip: 65781
Mailing Address: 813 BARWICK PL Cit : WILLARD State: Missouri Zi : 65781
Phone Number
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PURCHASE AND SALE OF FUTURE RECEIVABLES: Merchant hereby sells, assigns and transfers to Company(making Company the absolute
owner) in consideration of the funds provided ("Purchase Price") specified below, all of Merchanes future accounts, contract rights and other
customers' "Receipts"
obligations arising from or relating to the payment of monies from Merchanes and/or other third party payers (the defined as
all payments made by cash, check, electronic transfer or other form of monetary payment in the ordinary course of the merchanes business), for
the payment of Merchanes sale of goods or services until the amount specified below (the "Purchased Amoune') has been delivered by Merchant to
Company. The Purchased Amount shall be paid to Company by Merchanes irrevocably authorizing only one depositing account acceptable to
Company(the "Account") to remit the percentage specified below (the "Specified Percentage") of the Merchanes settlement amounts due from each
transaction, until such time as Company receives payment in full of the Purchased Amount. Merchant hereby authorizes Company to ACH Debit
the specified remittances from the merchanis bank account on a daily basis and will provide Company with all required access codes, and monthly
bank statements. Merchant understands that it is responsible for ensuring that the specified percentage to be debited by Company remains in the
account and will be held responsible for any fees incurred by Company resulting from a rejected ACH attempt or an event of default. (See
Appendix A) Company is not responsible for any overdrafts or rejected transactions that may result from Company's ACH debiting the specified
amounts under the terms of this agreement. Company may, upon Merchants request, adjust the amount of any payment due under this
Agreement at Company's sole discretion and as it deems appropriate. Notwithstanding anything to the contrary in this Agreement or any other
agreement between Company and Merchant, upon the violation of any provision contained in Section 1.12 of the MERCHANT AGREEMENT
TERMS AND CONDITIONS or the occurrence of an Event of Default under Section 3 of the MERCHANT AGREEMENT TERMS AND
CONDITIONS, the Specified Percentage shall equal 100%. A list of all fees applicable under this agreement is contained in Appendix A.
Purchase Price: $20,000.00 Specified Percentage: 19.00%
Specific Daily Amount: $993.33 Purchased Amount $29,800.00
THE TERMS, DEFINITIONS, CONDITIONS AND INFORMATION SET FORTH ON PAGE 2, THE "SECURITY AGREEMENT AND GUARANTY"
AND "ADMINISTRATIVE FORM HEREOF ARE HEREBY INCORPORATED IN AND MADE A PART OF THIS MERCHANT AGREEMENT.
To the extent set forth herein, each of the parties is obligated upon his, her or its execution of the Agreement to all terms of the Agreement,
including the Additional Terms set forth below. Each of above-signed Merchant and Owner(s) represents that he or she is authorized to sign this
Agreement for Merchant, legally binding said Merchant to repay this obligation and that the information provided herein and in all of Company
documents, forms and recorded interviews is true, accurate and complete in all respects. If any such information is false or misleading, Merchant
shall be deemed in material breach of all agreementsbetween Merchant and Company and Company shall be entitled to all remedies available
under law. Company may produce a monthly statement reflecting the delivery of the Specified Percentage of Receivables from Merchant via
Processor and/or Operator to Company. An investigative or consumer report may be made in connection with the Agreement. Merchant and each
of the above-signed Owners authorizes Company, its agents and representatives and any credit reporting agency engaged by Company, to (i)
investigate any references given or any other statements or data obtained from or about Merchant or any of its Owners for the purpose of this
Agreement, and (ii) pull credit report at any time now or for so long as Merchant and/or Owners(s) continue to have any obligation owed to
Company as a consequence of this Agreement or for Company's ability to determine Merchanis eligibility to enter into any future agreement with
Company. ANY MISREPRESENTATION MADE BY MERCHANT OR OWNER IN CONNECTION WITH THIS AGREEMENT MAY CONSTITUTE
A SEPARATE CAUSE OF ACTION FOR FRAUD OR INTENTIONAL MISREPRESENTATION.
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FOR THE MERCHANT (#1) By
Donnor filliOMSon (nWMN I )
Donna Williamson / Owner
'
Authorized Signer #1 natu
Phone Number
FOR THE OWNER / GUARANTOR (#1) By
Ponnor WilliOMSon (ÛWnN / )
Donna Williamson / Owner
Authorized Signer #1 (Signature)
THE LCF GROUP, INC. By Sales Associate Name:
(Company Officer) (Signature)
MERCHANT AGREEMENT TERMS AND CONDITIONS
I. TERMS OF ENROLLMENT IN PROGRAM
1.1 Merchant Deposit Merchant shall execute an agreement (the "Merchant Deposit Agreemene') acceptable to
Agreement.
Company, with a Bank acceptable to Company, to obtain electronic fund transfer services. Merchant shall provide Company and/or it's authorized
agent with all of the information, authorizations and passwords necessary for verifying Merchant's receivables, receipts and deposits into the
account. Merchant shall authorize Company and/or ifs agent to deduct the amounts owed to Company for the Receipts as specified herein from
settlement amounts which would otherwise be due to Merchant from electronic check transactions and to pay such amounts to Company by
permitting Company to withdraw the specified percentages by ACH debiting of the account. The authorization shall be irrevocable without the
written consent of Company.
1.2 Term of Agreement. This Agreement shall remain in full force and effect until the entire Purchased Amount and any other
amounts due to Company are received by Company as per the terms of this agreement.
1.3 Future Purchases. Company reserves the right to rescind the offer to make any purchase payments hereunder in its sole
discretion.
1.4 Reconciliation of Specific Daily amount. The specific daily amount represents the Specified Percentage of Merchanis future
receipts.Merchant may request that Company reconcile Merchanes actual receipts by either crediting or debiting the difference back to or from the
Account so that the amount Company debited in the most recent calendar month equaled the Specified Percentage of future receipts that
Company collected in that calendar month. Any reconciliation request must be 1. In writing 2. Include a complete copy of Merchanes bank
statement for the calendar month at issue and 3. Be sent to Company at 3000 Marcus Ave, Suite 2W15, Lake Success, NY, 11042 within 30 days
after the last day of the calendar month at issue. It is solely the Merchanes responsibility to send a complete bank statement. Failure to send a
written reconciliation request within 45 days of the last day of the calendar month at issue forfeits that month's reconciliation.
1.5 Financial Condition. Merchant and Guarantor(s) authorize Company and its agents to investigate their financial responsibility
and history, and will provide to Company any bank or financial statements, tax returns, etc., as Company deems necessary prior to or at any time
after execution of this Agreement. A photocopy of this authorization will be deemed as acceptable for release of financial information. Company is
authorized to update such information and financial profiles from time to time as it deems appropriate.
1.6 Transactional History. Merchant authorizes their bank(s) broker(s) and credit card processor(s) to provide Company with
Merchanis banking or processing history to determine qualification or continuation in this program.
1.7 Indemnification. Merchant and Guarantor(s) jointly and severally indemnify and hold harmless Processor, its officers, directors
and shareholders against all losses, damages, claims, liabilities and expenses (including reasonable attorney's fees) incurred by Processor
resulting from (a) claims asserted by Company for monies owed to Company from Merchant and (b) actions taken by Processor in reliance upon
information or instructions provided by Company.
1.8 No Liability. In no event will Company be liable for any claims asserted by Merchant under any legal theory for lost profits, lost
revenues, lost business opportunities, exemplary, punitive, special, incidental, indirect or consequential damages, each of which is waived by
Merchant and Guarantor(s).
1.9 Reliance on Terms. Section 1.1, 1.7, 1.8 and 2.5 of this Agreement are agreed to for the benefit of Merchant, Company and
Processor, and notwithstanding the fact that Processor is not a party of this Agreement, Processor may rely upon their terms and raise them as a
defense in any action.
1.10 Sale of Receipts. Merchant is selling a portion of a future receipts to Company at a discount, not borrowing money
from Company. There is no interest rate or payment schedule and no time period during which the Purchase Amount must be collected
by Company. Merchant going bankrupt or going out of business, in and of itself, does not constitute a breach of this Agreement.
Company is entering into this Agreement knowing the risks that Merchanis business may slow down or fail, and Company assumes these risks
based on Merchanes representations, warranties and covenants in this Agreement which are designed to give Company a reasonable and fair
opportunity the receive the benefit of its bargain. Merchant and Company agree that the Purchase Price under this Agreement is in exchange for
the Purchased Amount and that such Purchase Price is not intended to be, nor shall it be construed as a loan from Company to Merchant.
Merchant agrees that the Purchase Price is in exchange for the Receipts pursuant to this Agreement equals the fair market value of such Receipts.
Company has purchased and shall own all the Receipts described in this Agreement up to the full Purchased Amount as the Receipts are created.
Payments made to Company in respect to the full amount of the Receipts shall be conditioned upon Merchanis sale of products and services and
the payment therefore by Merchanes customers in the manner provided in Section 1.1. In no event shall the aggregate of all amounts be deemed
as interest hereunder and charged or collected hereunder exceed the highest rate permissible at law. In the event that a court determines that
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Company has charged or received interest hereunder in excess of the highest applicable rate, the rate in effect hereunder shall automatically be
reduced to the maximum rate permitted by applicable law and Company shall promptly refund to Merchant any interest received by Company in
excess of the maximum lawful rate, it being intended that Merchant not pay or contract to pay, and that Company not receive or contract to receive,
directly or indirectly in any manner whatsoever, interest in excess of that which may be paid by Merchant under applicable law.
1.11 Power of Attorney Merchant irrevocably appoints Company as its agent and attorney-in-fact with full authority to take any
action or execute any instrument or document to settle all obligations due to Company from Processor, or in the case of a violation by Merchant of
Section 1.12 or the occurrence of an Event of Default under Section 4 hereof, from Merchant, under this Agreement, including without limitation (i)
to obtain and adjust insurance; (ii) to collect monies due or to become due under or in respect of any of the Collateral; (iii) to receive, endorse and
collect any checks, notes, drafts, instruments, documents or chattel paper in connection with clause (i) or clause (ii) above; (iv) to sign Merchants
name on any invoice, bill of lading, or assignment directing customers or account debtors to make payment directly to Company; and (v) to file any
claims or take any action or institute any proceeding which Company may deem necessary for the collection of any of the unpaid Purchased
Amount from the Collateral, or otherwise to enforce its rights with respect to payment of the Purchased Amount.
1.12 Protections Against Default. The following Protections 1 through 8 may be invoked by Company, immediately and without
notice to Merchant in the event: (a) Merchant takes any action to discourage the use of electronic check processing that are settled through
Processor, or permits any event to occur that could have an adverse effect on the use, acceptance, or authorization of checks for the purchase of
Merchanis services and products including but not limited to direct deposit of any checks into a bank account without scanning into the Company
electronic check processor; (b) Merchant changes its arrangements with Processor in any way that is adverse to Company; (c) Merchant changes
the electronic check processor through which the Receipts are settled from Processor to another electronic check processor, or permits any event
to occur that could cause diversion of any of Merchant's check transactions to another processor; (d) Merchant interrupts the operation of this
business (other than adverse weather, natural disasters or acts of God) transfers, moves, sells, disposes, transfers or otherwise conveys its
business or assets without (i) the express prior written consent of Company, and (ii) the written agreement of any purchaser or transferee to the
assumption of all of Merchant's obligations under this Agreement pursuant to documentation satisfactory to Company; or (e) Merchant takes any
action, fails to take any action, or offers any incentive-economic or otherwise-the result of which will be to induce any customer or customers to
pay for Merchant's services with any means other than payments, checks, or deposits that are settled through Processor. Any of these events
places merchant in default under this Agreement. These protections are in addition to any other remedies available to Company at law, in equity or
otherwise pursuant to this Agreement. Protection 1. The full uncollected Purchase Amount plus all fees due under this Agreement and the
attached Security Agreement become due and payable in full immediately. Protection 2. Company may enforce the provisions of the Personal
Guarantee of Performance against the Guarantor. Protection 3. Merchant shall, upon execution of this Agreement, deliver to Company an
executed confession of judgment in favor of Company in the amount of the Purchase Amount stated in the Agreement. Upon breach of any
provision in this paragraph 1.11, Company may enter that confession of judgment as a judgment with any petition brought or pending against
Merchant. Protection 4. Company may enforce its security interest in the collateral. Protection 5. The entire Purchased Amount and all fees
(including reasonable attorney's fees) shall become immediately payable to Company from Merchant. Protection 6. Company may proceed to
protect and enforce its rights and remedies by lawsuit. In any such lawsuit, if Company recovers a judgment against Merchant, Merchant shall be
liable for all of Company's costs of the lawsuit including, but not limited to reasonable attorney's fees of 33.33% of the Purchased Amount
outstanding and court costs. Protection 7. This Agreement shall be deemed Merchanes Assignment of Merchanes Lease of Merchanis business
premise to Company. Upon breach of any provision in this Agreement Company may exercise its rights under this Assignment of Lease without
prior Notice to Merchant. Protection 8. Company may debit Merchant's depository accounts wherever situated by means of ACH debit or
facsimile signature on a computer-generated check drawn on Merchanes bank account or otherwise for all sums due to Company.
1.13 Confidentiality. Merchant understands
and agrees that the terms and conditions of the products and services offered by
Company including this Agreement and any other Company documents (collectively "Confidential Information") are propriety and confidential
information of Company. Accordingly unless disclosure is required by law or court order, Merchant shall not disclose Confidential Information of
Company to any person other than an attorney, accountant, financial advisor or employee of Merchant who needs to know such information for the
purpose of advising Merchant ( "Advisor"), provided such Advisor uses Confidential Information solely for the purpose of advising Merchant and
first agrees in writing to be bound by the terms of this section . A breach hereof entitles Company to not only damages and legal fees but also to
both a temporary restraining order and a preliminary injunction without bond or security.
1.14 Publicity. Merchant and each of Merchanis owners and all guarantors hereby authorize Company to use its, his or her name
in listings of clients and in advertising and marketing materials.
as"
Merchant hereby acknowledges and agrees that Company may be using "doing business
1.15 D/B/As. or d/b/a names in
connection with various matters relating to the transaction between Company and Merchant including but not limited to the filing of UCC-1 financing
statements.
1.16 Application of Payments. Subject to applicable law, Company reserves the right to apply payments in any manner Company
chooses.
1.17 Inspection of Collateral and Place of Business. Company or its designated representatives and agents shall have the right,
during Merchanes normal business hours and at any other reasonable times and without notice to Merchant, to examine the Collateral where
located and the interior and exterior of any of Merchanes places of business. Any such examination of any of Merchanes business may include ,
among other things, whether Merchant (a) has a place of business that is separate from any personal residence, (b) is open for business, (c) has
sufficient inventory to conduct its business and (d) has one or more point-of-sale terminals to process Card transactions. When performing an
examination Company or its designated representatives and agents may photograph the interior and exterior of any of Merchanis places of
business including any signage and point-of-sale terminals and may photograph any Principal of the Merchant.
1.18 Monthly Fees. In addition to the other fees provided for herein, Company shall be entitled, without notice or invoice, to a
nonrefundable monthly fee of $195.00 to be collected via ACH Debit and which shall be due for each month, or portion thereof, during the tenure of
this Agreement. Said fee shall be due and owing upon the first monthly anniversary of the date of this agreement and on every monthly anniversary
of the date of this agreement while seller maintains an RTR balance to Company. Each Monthly Fee shall be earned upon Company's receipt
thereof in consideration of Company's accepting this engagement and servicing the instant transaction as described herein and shall in no way be
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deemed to represent a diminution of the purchase price set forth herein.
II. REPRESENTATIONS, WARRANTIES AND COVENANTS. Merchant represents warrants and covenants that, as of this date and during
the term of this Agreement:
2.1 Financial Condition and Financial Information. Merchant's and Guarantor's bank and financial statements, copies of which
have been furnished to Company, and future statements which will be furnished to Company hereafter at the discretion of company, fairly
represent the financial condition of Merchant at such dates and since those dates there has been no material adverse changes, financial or
otherwise, in such condition, operation or ownership of Merchant. Merchant and Guarantors have a continuing affirmative obligation to inform
Company of any material adverse change in their financial condition, operation or ownership. Company may request statements at any time during
the performance of this agreement and the Merchant and Guarantors shall provide them to Company within 10 business days of such a request.
Failure to do so is a material breach of this agreement.
2.2 Governmental Approvals. Merchant is in compliance and shall comply with all laws and has valid permits, licenses and
authorizations to operate, own and lease its properties and to conduct the business in which it is presently engaged and/or will engage in hereafter.
2.3 Authorization. Merchant and the person(s) signing this agreement on behalf of Merchant have full power and authority to incur
and perform the obligations under this Agreement, all of which have been duly authorized.
2.4 Insurance. Merchant will maintain business interruption insurance naming Company as loss payee and additional insured in
amounts and against risks as are satisfactory to Company and shall provide Company proof of such upon request.
2.5 Processing and banking agreement. Merchant will not change its processor, financial institution or bank account(s) or take
any other action that could have an adverse effect upon Merchanes obligations under this Agreement without Company's prior written consent.
Any such changes shall be a material breach of this Agreement.
2.6 Change of Name or Location. Merchant will not conduct Merchanis businesses under any name other than as disclosed to
the Processor and Company, nor shall Merchant change any of its places of business without prior written consent by Company.
2.7 No Bankruptcy. As of this date of this Agreement, Merchant is not insolvent and does not contemplate filing for bankruptcy in
the next 6 six months and has not consulted with a bankruptcy attorney or debt consolidation company within the past 6 months. Merchant has not
filed any petition for bankruptcy protection under Title AA of the United States Code and there has been no involuntary petition brought or pending
against Merchant. Merchant further warrants that it does not anticipate filing any such petition and it does not anticipate that an involuntary petition
will be filed against it.
2.8 Working Capital Funding. Merchant shall not enter into any arrangement, agreement or commitment that relates to or involves
the Receipts, whether in the form of a purchase of, a loan against, collateral against or the sale or purchase of credits against, Receipts or future
check sales with any party other than Company without prior written approval from Company.
2.9 Unencumbered Receipts. Merchant has good, complete and marketable title to all Receipts, free and clear of any and all
liabilities, liens, claims, changes, restrictions, conditions, options, rights, mortgages, security interests, equities, pledges and encumbrances of any
kind or nature whatsoever or any other rights or interests that may be inconsistent with the transactions contemplated with, or adverse to the
interests of Company.
2.10 Business Purpose. Merchant is a valid business in good standing under the laws of the jurisdictions in which it is organized
and/or operates, and Merchants entering into this Agreement for business purposes and not as a consumer for personal, family or household
purposes.
2.11 Default Under Other Contracts. Merchants execution of and/or performance under this Agreement will not cause or create
an event of default by Merchant under any contract with another person or entity.
2.12 Good faith. Merchant and Guarantors hereby affirm that Merchant is receiving the Purchase Price and selling Company the
Purchased Amount in good faith and will use the Purchase Price funds to maintain and grow Merchanes business. Based upon Merchanes and
Guarantor's calculations and experience in operating Merchanes business, Merchant and Guarantor are confident that the Purchase Price paid by
Company in exchange for the Purchased Amount of Future Receipts will be used in a manner that will benefit Merchanes current and future
business operations.
III. EVENTS OF DEFAULT AND REMEDIES
Defaulf'
3.1 Events of Default. The occurrence of any of the following events shall constitute an "Event of hereunder: (a) Merchant
shall violate any term or covenant in this Agreement; (b) Any representation or warranty by Merchant in this Agreement shall prove to have been
incorrect, false or misleading in any material respect when made; (c) Merchant interferes with Company's right to collect the Specific Daily Amount
(and payment for arrears, if any) in violation of this Agreement: (d) the sending of notice of termination by Guarantor; (e) Merchant shall transport,
move, interrupt, suspend, dissolve or terminate its business; (f) Merchant shall transfer or sell all or substantially all of its assets; (h) Merchant shall
make or send notice of any intended bulk sale or transfer by Merchant; (i) Merchant shall use multiple depository accounts without the prior written
consent of Company; (j) Merchant shall change its depositing account without the prior written consent of Company; (k) Merchant shall perform
any act that reduces the value of any Collateral granted under this Agreement; or (1) Merchant shall default under any of the terms, covenants and
conditions of any other agreement with Company.
3.2 Remedies. In case any Event of Default occurs and is not waived pursuant to Section 4.4.1 hereof, Company may proceed to
protect and enforce its rights or remedies by suit in equity or by action at law, or both, whether for the specific performance of any covenant,
agreement or other provision contained herein, or to enforce the discharge of Merchanes obligations hereunder (including the Personal Guarantee)
or any other legal or equitable right or remedy. Company shall use but is not limited to all protections stated in Section 1.12 of this Agreement. All
rights, powers and remedies of Company in connection with this Agreement may be exercised at any time by Company after the occurrence of an
Event of Default, are cumulative and not exclusive, and shall be in addition to any other rights, powers or remedies provided by law or equity.
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3.3 Costs. Merchant shall pay to Company all reasonable costs associated with (a) a breach by Merchant of the Covenants in this
Agreement and the enforcement thereof, and (b) the enforcement of Company's remedies set forth in Section 4.2 above, including but not limited to
attorneys'
court costs and fees.
3.4 Required Notifications. Merchant is required to give Company written notice within 24 hours of any filing under Title 11 of the
days'
United States Code. Merchant is required to give Company seven written notice prior to the closing of any sale of all or substantially all of the
Merchanis assets or stock.
IV. MISCELLANEOUS
4.1 Modifications; Agreements. No modification, amendment, waiver or consent of any provision of this Agreement shall be
effective unless the same shall be in writing and signed by Company.
4.2 Assignment. Company may assign, transfer or sell its rights to receive the Purchased Amount or delegate its duties hereunder,
either in whole or in part.
4.3 Notices. All notices, requests, consent, demands and other communications hereunder shall be delivered by certified mail with
return receipt requested or United States Postal Service Priority Mail with tracking to the respective parties to this Agreement at the addresses set
forth in this Agreement and shall become effective only upon receipt.
4.4 Waiver of Remedies. No failure on the part of 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 preclude any other or further
exercise thereof or the exercise of any other right. The remedies provided hereunder are cumulative and not exclusive of any remedies provided by
law or equity.
4.5 Binding Effect; Governing Law, Venue and Jurisdiction. This Agreement shall be binding upon and inure to the benefit of
Merchant, 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 Company which consent may be withheld in Company sole discretion. Company reserves
the rights to assign this Agreement with or without prior written notice to Merchant. MERCHANT AND ANY GUARANTOR(S) HEREBY CONSENT
AND AGREE THAT THE STATE OR FEDERAL COURTS LOCATED IN NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND
DETERMINE ANY CLAIMS OR DISPUTES BETWEEN MERCHANT and/or GUARANTOR(S) AND COMPANY PERTAINING TO THIS
AGREEMENT AND/OR THE GUARANTY OR TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT AND/OR THE
GUARANTY; PROVIDED, THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE COMPANY FROM
BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO COLLECT UPON ITS RIGHTS PURSUANT TO THE
PSFRA AND/OR THE GUARANTY OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF COMPANY.
MERCHANT AND GUARANTOR EXPRESSLY SUBMIT AND CONSENT IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT
COMMENCED IN ANY SUCH COURT, AND GUARANTOR HEREBY WAIVES ANY OBJECTION THAT IT MAY HAVE BASED UPON LACK OF
PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS. GUARANTOR HEREBY WAIVES PERSONAL SERVICE OF
THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT and acknowledges that the transmittal of
documents instituting any Suit against Merchant and/or Guarantor may be served upon Company and Guarantor via the email address located
within the PSFRA and that such transmittal is reasonably calculated to apprise Merchant and/or Guarantor of the pendency of the action and afford
it an opportunity to respond. This Agreement shall be govemed by and construed in accordance with the laws of the State of New York, without
regards to any applicable principals of conflicts of law. Any suit, action or proceeding arising hereunder, or the interpretation, performance or
breach hereof, shall, if Company so elects, be instituted in any court sitting in New York, (the 'Acceptable Forums"). Merchant agrees that the
Acceptable Forums are convenient to it and submits to the jurisdiction of the Acceptable Forums and waives any and all objections to jurisdiction or
venue. Should such proceeding be initiated in any other forum, Merchant waives any right to oppose any motion or application made by Company
to transfer such proceeding to an Acceptable Forum.
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4.6 Survival of Representation, etc. All representations, warranties and covenants herein shall survive the execution and delivery
of this Agreement and shall continue in full force until all obligations under this Agreement shall have been satisfied in full and this Agreement shall
have terminated.
4.7 Severability. In case any of the provisions in this Agreement is found to be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of any other provision contained herein shall not in any way be affected or impaired.
4.8 Interpretation. All Parties hereto have reviewing this Agreement with an attorney of their own choosing and have relied only
on their own attorney's guidance and advice. No construction determinations shall be made against either Party hereto as drafter.
4.9 Monitoring, Recording and Solicitations. Merchant and Guarantor authorize Company, its affiliates agents and independent
contractors to contact Merchant and Guarantor at any telephone number Merchant or Guarantor provides to Company or from which Merchant or
Guarantor places a call to Company or any telephone number where Company believes it may reach Company or Guarantor, using any means of
communication including but not limited to calls or text messages to mobile, cellular, wireless or similar devices or calls or text messages using an
automated telephone dialing system and/or artificial voices or prerecorded messages, even if Merchant or Guarantor incurs charges for receiving
such communications. Merchant and Guarantor also agree that Company, its affiliates agents and independent contractors may use any other
medium not prohibited by law including but not limited to mail, email and facsimile to contact Merchant or Guarantor. Merchant or Guarantor
expressly consent to conduct business by electronic means. Merchant or Guarantor are not required to agreement to section 4.9 in order to enter
into this Agreement. If Merchant or Guarantor wish to opt out of Section 4.9 or wish to change how Company contacts them, please contact
Company at 888-499-2939.
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4.10 Entire Agreement. Any provision hereof prohibited by law shall be ineffective only to the extent of such prohibition without
invalidating the remaining provisions hereof. This Agreement and Security Agreement and Guaranty hereto embody the entire agreement between
Merchant and Company and supersede all prior agreements and understandings relating to the subject matter hereof.
V. JURY TRIAL WAIVER. THE PARTIES HERETO WAIVE TRIAL BYJURY IN ANY COURT IN ANY SUIT, ACTION OR PROCEEDING
ON ANY MATTER ARISING IN CONNECTION WITH OR IN ANY WAY RELATED TO THE TRANSACTIONS OF WHICH THIS AGREEMENT IS
A PART OR THE ENFORCEMENT HEREOF. 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.
5.1 CLASS ACTION WAIVER. THE PARTIES HERETO WAIVE ANYRIGHT TO ASSERT ANY CLAIMS AGAINST THE OTHER
PARTY AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS
PROHIBITED BY LAW AGAINST PUBLIC POLICY. TO THE EXTENT EITHER PARTY IS PERMITTED BY LAW OR COURT OF LAW TO
PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES HEREBY AGREE THAT: (1) THE
PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS' FEES OR COSTS ASSOCIATED WITH PURSUING THE
CLASS OR REPRESENTATIVE ACTION (NOT WITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT); AND (2) THE PARTY
WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY
RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.
VI. Arbitration. Notwithstanding the foregoing, any dispute, claim or controversy arising out of or relating to this agreement, the security
agreement or the guaranty(s) herein, or the breach of any of the said agreement, security agreement or the guaranty(s) shall be, at the election of
either party, settled by arbitration administered by Mediation and Civil Arbitration, Inc. d/b/a RapidRuling (www.rapidruling.com) in accordance with
its Commercial Arbitration Rules effective at the time a claim is made, and judgment on the award rendered by the arbitrator(s) may be entered in
any court having jurisdiction thereof. An election to arbitrate by either party shall be deemed effective by the commencement of an arbitration
proceeding with Mediation and Civil Arbitration, Inc.
The Parties consent to electronic service of process, with service to be made to the following email addresses and
legal@thelcfgroup.com, and/or service in accordance with section 4.3, supra, via certified mail with return receipt requested or United States Postal
Service Priority Mail with tracking.
The Parties agree that, in the event of confirmation and enforcement, the delinquent party will be responsible for any attomey, court or other fees
associated with such action. The
parties agree to split all Mediation and Civil Arbitration, Inc. d/b/a RapidRuling fees evenly and the commencing party shall be entitled to any
unreimbursed monies paid on behalf of the non-commencing party within any award.
VII. Facsimile and Electronic Acceptance: Facsimile and electronic signature shall be deemed acceptable for all purposes.
6 Initials:
Doc ID: a3a7e5de8fefdfc3dd31ba3185890fT332dga6c5
FILED: NASSAU COUNTY CLERK 04/22/2024 01:45 PM INDEX NO. 607044/2024
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/22/2024
LCF
SECURITY AGREEMENT AND GUARANTY
Between THE LCF GROUP, INC.("Company"),
AND
ATL Logistics LLC DBA ATL Logistics("Merchant")
Physical Address: 813 Barwick PI City: Willard State: Missouri Zip: 65781 Federal Tax ID#
AND Guarantors(collectively referred to as "Corporate Guarantors"): Joe Rold Transport, LLC EIN
SECURITY AGREEMENT
Security Interest. This Security Agreement and Guaranty (the "Agreement") will constitute a security agreement under the Uniform Commercial
Code (the "UCC"). Merchant and any Guarantor(s) grants to Company a security interest in and lien upon: (a) all accounts, chattel paper,
documents, equipment, general intangibles, instruments, inventory or investment property, as those terms are defined in Article 9 of the UCC, now
or hereafter owned or acquired by Merchant, (b) all proceeds, as that term is defined in Article 9 of the UCC, (c) all funds at any time in the
Merchanis accounts, regardless of the source of such funds, (d) present and future Electronic Check Transactions, and (e) any amount which may
be due to Company under this Agreement, including but not limited to all rights to receive any payments or credits under this Agreement
(collectively the "Secured Assets"). Merchant agrees to provide other security to Company upon request to secure Merchanis obligations under
the Agreements. Merchant agrees that if at any time there are insufficient funds in Merchanes Account to cover Company's entitlements under this
Agreement, Company is granted a further security interest in all of Merchanes assets of any kind whatsoever, and such assets shall then become
Secured Assets. These security interests and liens will secure all Company's entitlements under the Agreements and any other agreements now
existing or later entered into between Merchant, Company or an affiliate of Company. Company is authorized to file any and all notices or filings it
deems necessary or appropriate to enforce its entitlements hereunder.
This security interest may be exercised by Company without notice or demand of any kind by making an immediate withdrawal or freezing the
Secured Assets. Company shall have the right to notify account debtors at any time. Pursuant to Article 9 of the UCC, as amended from time to
time, Company has control over and may direct the disposition of the Secured Assets without further consent of Merchant. Merchant hereby
represents and warrants that no other person or entity has a security interest in the Secured Assets. With respect to such security interests and
liens, Company will have all rights afforded under the UCC, any other applicable law and in equity. Merchant will obtain from Company written
consent prior to granting a security interest of any kind in the Secured Assets to a third party. Merchant agrees that this is a contract of recoupment
and Company is not required to file a motion for relief from a bankruptcy action automatic stay to realize on any of the Secured Assets.
Nevertheless, Merchant agrees not to contest or object to any motion for relief from the automatic stay filed by Company. Merchant agrees to
execute and deliver to Company such instruments and documents Company may reasonabl
Preview
FILED: NASSAU COUNTY CLERK 04/22/2024 01:45 PM INDEX NO. 607044/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/22/2024 LCF The LCF Group 3000 Marcus Avenue, Suite 2W15, Lake Success, NY 11042 MERCHANTAGREEMENT Agreement dated June 16, 2023 Between THE LCF GROUP, INC. (the Company) and the merchant listed below ("the Merchant") MERCHANT INFORMATION Merchant's Legal Name: ATL Logistics LLC Merchant's DBA Name: ATL Logistics Type of entity: LLC Physical Address: 813 Barwick PI City: Willard State: Missouri Zip: 65781 Mailing Address: 813 BARWICK PL Cit : WILLARD State: Missouri Zi : 65781 Phone Number Initials: PURCHASE AND SALE OF FUTURE RECEIVABLES: Merchant hereby sells, assigns and transfers to Company(making Company the absolute owner) in consideration of the funds provided ("Purchase Price") specified below, all of Merchanes future accounts, contract rights and other customers' "Receipts" obligations arising from or relating to the payment of monies from Merchanes and/or other third party payers (the defined as all payments made by cash, check, electronic transfer or other form of monetary payment in the ordinary course of the merchanes business), for the payment of Merchanes sale of goods or services until the amount specified below (the "Purchased Amoune') has been delivered by Merchant to Company. The Purchased Amount shall be paid to Company by Merchanes irrevocably authorizing only one depositing account acceptable to Company(the "Account") to remit the percentage specified below (the "Specified Percentage") of the Merchanes settlement amounts due from each transaction, until such time as Company receives payment in full of the Purchased Amount. Merchant hereby authorizes Company to ACH Debit the specified remittances from the merchanis bank account on a daily basis and will provide Company with all required access codes, and monthly bank statements. Merchant understands that it is responsible for ensuring that the specified percentage to be debited by Company remains in the account and will be held responsible for any fees incurred by Company resulting from a rejected ACH attempt or an event of default. (See Appendix A) Company is not responsible for any overdrafts or rejected transactions that may result from Company's ACH debiting the specified amounts under the terms of this agreement. Company may, upon Merchants request, adjust the amount of any payment due under this Agreement at Company's sole discretion and as it deems appropriate. Notwithstanding anything to the contrary in this Agreement or any other agreement between Company and Merchant, upon the violation of any provision contained in Section 1.12 of the MERCHANT AGREEMENT TERMS AND CONDITIONS or the occurrence of an Event of Default under Section 3 of the MERCHANT AGREEMENT TERMS AND CONDITIONS, the Specified Percentage shall equal 100%. A list of all fees applicable under this agreement is contained in Appendix A. Purchase Price: $20,000.00 Specified Percentage: 19.00% Specific Daily Amount: $993.33 Purchased Amount $29,800.00 THE TERMS, DEFINITIONS, CONDITIONS AND INFORMATION SET FORTH ON PAGE 2, THE "SECURITY AGREEMENT AND GUARANTY" AND "ADMINISTRATIVE FORM HEREOF ARE HEREBY INCORPORATED IN AND MADE A PART OF THIS MERCHANT AGREEMENT. To the extent set forth herein, each of the parties is obligated upon his, her or its execution of the Agreement to all terms of the Agreement, including the Additional Terms set forth below. Each of above-signed Merchant and Owner(s) represents that he or she is authorized to sign this Agreement for Merchant, legally binding said Merchant to repay this obligation and that the information provided herein and in all of Company documents, forms and recorded interviews is true, accurate and complete in all respects. If any such information is false or misleading, Merchant shall be deemed in material breach of all agreementsbetween Merchant and Company and Company shall be entitled to all remedies available under law. Company may produce a monthly statement reflecting the delivery of the Specified Percentage of Receivables from Merchant via Processor and/or Operator to Company. An investigative or consumer report may be made in connection with the Agreement. Merchant and each of the above-signed Owners authorizes Company, its agents and representatives and any credit reporting agency engaged by Company, to (i) investigate any references given or any other statements or data obtained from or about Merchant or any of its Owners for the purpose of this Agreement, and (ii) pull credit report at any time now or for so long as Merchant and/or Owners(s) continue to have any obligation owed to Company as a consequence of this Agreement or for Company's ability to determine Merchanis eligibility to enter into any future agreement with Company. ANY MISREPRESENTATION MADE BY MERCHANT OR OWNER IN CONNECTION WITH THIS AGREEMENT MAY CONSTITUTE A SEPARATE CAUSE OF ACTION FOR FRAUD OR INTENTIONAL MISREPRESENTATION. 1 Initials: Doc ID: a3a7e5de8fefdfc3dd31ba3185890fT332dga6c5 FILED: NASSAU COUNTY CLERK 04/22/2024 01:45 PM INDEX NO. 607044/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/22/2024 FOR THE MERCHANT (#1) By Donnor filliOMSon (nWMN I ) Donna Williamson / Owner ' Authorized Signer #1 natu Phone Number FOR THE OWNER / GUARANTOR (#1) By Ponnor WilliOMSon (ÛWnN / ) Donna Williamson / Owner Authorized Signer #1 (Signature) THE LCF GROUP, INC. By Sales Associate Name: (Company Officer) (Signature) MERCHANT AGREEMENT TERMS AND CONDITIONS I. TERMS OF ENROLLMENT IN PROGRAM 1.1 Merchant Deposit Merchant shall execute an agreement (the "Merchant Deposit Agreemene') acceptable to Agreement. Company, with a Bank acceptable to Company, to obtain electronic fund transfer services. Merchant shall provide Company and/or it's authorized agent with all of the information, authorizations and passwords necessary for verifying Merchant's receivables, receipts and deposits into the account. Merchant shall authorize Company and/or ifs agent to deduct the amounts owed to Company for the Receipts as specified herein from settlement amounts which would otherwise be due to Merchant from electronic check transactions and to pay such amounts to Company by permitting Company to withdraw the specified percentages by ACH debiting of the account. The authorization shall be irrevocable without the written consent of Company. 1.2 Term of Agreement. This Agreement shall remain in full force and effect until the entire Purchased Amount and any other amounts due to Company are received by Company as per the terms of this agreement. 1.3 Future Purchases. Company reserves the right to rescind the offer to make any purchase payments hereunder in its sole discretion. 1.4 Reconciliation of Specific Daily amount. The specific daily amount represents the Specified Percentage of Merchanis future receipts.Merchant may request that Company reconcile Merchanes actual receipts by either crediting or debiting the difference back to or from the Account so that the amount Company debited in the most recent calendar month equaled the Specified Percentage of future receipts that Company collected in that calendar month. Any reconciliation request must be 1. In writing 2. Include a complete copy of Merchanes bank statement for the calendar month at issue and 3. Be sent to Company at 3000 Marcus Ave, Suite 2W15, Lake Success, NY, 11042 within 30 days after the last day of the calendar month at issue. It is solely the Merchanes responsibility to send a complete bank statement. Failure to send a written reconciliation request within 45 days of the last day of the calendar month at issue forfeits that month's reconciliation. 1.5 Financial Condition. Merchant and Guarantor(s) authorize Company and its agents to investigate their financial responsibility and history, and will provide to Company any bank or financial statements, tax returns, etc., as Company deems necessary prior to or at any time after execution of this Agreement. A photocopy of this authorization will be deemed as acceptable for release of financial information. Company is authorized to update such information and financial profiles from time to time as it deems appropriate. 1.6 Transactional History. Merchant authorizes their bank(s) broker(s) and credit card processor(s) to provide Company with Merchanis banking or processing history to determine qualification or continuation in this program. 1.7 Indemnification. Merchant and Guarantor(s) jointly and severally indemnify and hold harmless Processor, its officers, directors and shareholders against all losses, damages, claims, liabilities and expenses (including reasonable attorney's fees) incurred by Processor resulting from (a) claims asserted by Company for monies owed to Company from Merchant and (b) actions taken by Processor in reliance upon information or instructions provided by Company. 1.8 No Liability. In no event will Company be liable for any claims asserted by Merchant under any legal theory for lost profits, lost revenues, lost business opportunities, exemplary, punitive, special, incidental, indirect or consequential damages, each of which is waived by Merchant and Guarantor(s). 1.9 Reliance on Terms. Section 1.1, 1.7, 1.8 and 2.5 of this Agreement are agreed to for the benefit of Merchant, Company and Processor, and notwithstanding the fact that Processor is not a party of this Agreement, Processor may rely upon their terms and raise them as a defense in any action. 1.10 Sale of Receipts. Merchant is selling a portion of a future receipts to Company at a discount, not borrowing money from Company. There is no interest rate or payment schedule and no time period during which the Purchase Amount must be collected by Company. Merchant going bankrupt or going out of business, in and of itself, does not constitute a breach of this Agreement. Company is entering into this Agreement knowing the risks that Merchanis business may slow down or fail, and Company assumes these risks based on Merchanes representations, warranties and covenants in this Agreement which are designed to give Company a reasonable and fair opportunity the receive the benefit of its bargain. Merchant and Company agree that the Purchase Price under this Agreement is in exchange for the Purchased Amount and that such Purchase Price is not intended to be, nor shall it be construed as a loan from Company to Merchant. Merchant agrees that the Purchase Price is in exchange for the Receipts pursuant to this Agreement equals the fair market value of such Receipts. Company has purchased and shall own all the Receipts described in this Agreement up to the full Purchased Amount as the Receipts are created. Payments made to Company in respect to the full amount of the Receipts shall be conditioned upon Merchanis sale of products and services and the payment therefore by Merchanes customers in the manner provided in Section 1.1. In no event shall the aggregate of all amounts be deemed as interest hereunder and charged or collected hereunder exceed the highest rate permissible at law. In the event that a court determines that 2 Initials: Doc ID: a3a7e5de8fefdfc3dd31ba3185890fT332dga6c5 FILED: NASSAU COUNTY CLERK 04/22/2024 01:45 PM INDEX NO. 607044/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/22/2024 Company has charged or received interest hereunder in excess of the highest applicable rate, the rate in effect hereunder shall automatically be reduced to the maximum rate permitted by applicable law and Company shall promptly refund to Merchant any interest received by Company in excess of the maximum lawful rate, it being intended that Merchant not pay or contract to pay, and that Company not receive or contract to receive, directly or indirectly in any manner whatsoever, interest in excess of that which may be paid by Merchant under applicable law. 1.11 Power of Attorney Merchant irrevocably appoints Company as its agent and attorney-in-fact with full authority to take any action or execute any instrument or document to settle all obligations due to Company from Processor, or in the case of a violation by Merchant of Section 1.12 or the occurrence of an Event of Default under Section 4 hereof, from Merchant, under this Agreement, including without limitation (i) to obtain and adjust insurance; (ii) to collect monies due or to become due under or in respect of any of the Collateral; (iii) to receive, endorse and collect any checks, notes, drafts, instruments, documents or chattel paper in connection with clause (i) or clause (ii) above; (iv) to sign Merchants name on any invoice, bill of lading, or assignment directing customers or account debtors to make payment directly to Company; and (v) to file any claims or take any action or institute any proceeding which Company may deem necessary for the collection of any of the unpaid Purchased Amount from the Collateral, or otherwise to enforce its rights with respect to payment of the Purchased Amount. 1.12 Protections Against Default. The following Protections 1 through 8 may be invoked by Company, immediately and without notice to Merchant in the event: (a) Merchant takes any action to discourage the use of electronic check processing that are settled through Processor, or permits any event to occur that could have an adverse effect on the use, acceptance, or authorization of checks for the purchase of Merchanis services and products including but not limited to direct deposit of any checks into a bank account without scanning into the Company electronic check processor; (b) Merchant changes its arrangements with Processor in any way that is adverse to Company; (c) Merchant changes the electronic check processor through which the Receipts are settled from Processor to another electronic check processor, or permits any event to occur that could cause diversion of any of Merchant's check transactions to another processor; (d) Merchant interrupts the operation of this business (other than adverse weather, natural disasters or acts of God) transfers, moves, sells, disposes, transfers or otherwise conveys its business or assets without (i) the express prior written consent of Company, and (ii) the written agreement of any purchaser or transferee to the assumption of all of Merchant's obligations under this Agreement pursuant to documentation satisfactory to Company; or (e) Merchant takes any action, fails to take any action, or offers any incentive-economic or otherwise-the result of which will be to induce any customer or customers to pay for Merchant's services with any means other than payments, checks, or deposits that are settled through Processor. Any of these events places merchant in default under this Agreement. These protections are in addition to any other remedies available to Company at law, in equity or otherwise pursuant to this Agreement. Protection 1. The full uncollected Purchase Amount plus all fees due under this Agreement and the attached Security Agreement become due and payable in full immediately. Protection 2. Company may enforce the provisions of the Personal Guarantee of Performance against the Guarantor. Protection 3. Merchant shall, upon execution of this Agreement, deliver to Company an executed confession of judgment in favor of Company in the amount of the Purchase Amount stated in the Agreement. Upon breach of any provision in this paragraph 1.11, Company may enter that confession of judgment as a judgment with any petition brought or pending against Merchant. Protection 4. Company may enforce its security interest in the collateral. Protection 5. The entire Purchased Amount and all fees (including reasonable attorney's fees) shall become immediately payable to Company from Merchant. Protection 6. Company may proceed to protect and enforce its rights and remedies by lawsuit. In any such lawsuit, if Company recovers a judgment against Merchant, Merchant shall be liable for all of Company's costs of the lawsuit including, but not limited to reasonable attorney's fees of 33.33% of the Purchased Amount outstanding and court costs. Protection 7. This Agreement shall be deemed Merchanes Assignment of Merchanes Lease of Merchanis business premise to Company. Upon breach of any provision in this Agreement Company may exercise its rights under this Assignment of Lease without prior Notice to Merchant. Protection 8. Company may debit Merchant's depository accounts wherever situated by means of ACH debit or facsimile signature on a computer-generated check drawn on Merchanes bank account or otherwise for all sums due to Company. 1.13 Confidentiality. Merchant understands and agrees that the terms and conditions of the products and services offered by Company including this Agreement and any other Company documents (collectively "Confidential Information") are propriety and confidential information of Company. Accordingly unless disclosure is required by law or court order, Merchant shall not disclose Confidential Information of Company to any person other than an attorney, accountant, financial advisor or employee of Merchant who needs to know such information for the purpose of advising Merchant ( "Advisor"), provided such Advisor uses Confidential Information solely for the purpose of advising Merchant and first agrees in writing to be bound by the terms of this section . A breach hereof entitles Company to not only damages and legal fees but also to both a temporary restraining order and a preliminary injunction without bond or security. 1.14 Publicity. Merchant and each of Merchanis owners and all guarantors hereby authorize Company to use its, his or her name in listings of clients and in advertising and marketing materials. as" Merchant hereby acknowledges and agrees that Company may be using "doing business 1.15 D/B/As. or d/b/a names in connection with various matters relating to the transaction between Company and Merchant including but not limited to the filing of UCC-1 financing statements. 1.16 Application of Payments. Subject to applicable law, Company reserves the right to apply payments in any manner Company chooses. 1.17 Inspection of Collateral and Place of Business. Company or its designated representatives and agents shall have the right, during Merchanes normal business hours and at any other reasonable times and without notice to Merchant, to examine the Collateral where located and the interior and exterior of any of Merchanes places of business. Any such examination of any of Merchanes business may include , among other things, whether Merchant (a) has a place of business that is separate from any personal residence, (b) is open for business, (c) has sufficient inventory to conduct its business and (d) has one or more point-of-sale terminals to process Card transactions. When performing an examination Company or its designated representatives and agents may photograph the interior and exterior of any of Merchanis places of business including any signage and point-of-sale terminals and may photograph any Principal of the Merchant. 1.18 Monthly Fees. In addition to the other fees provided for herein, Company shall be entitled, without notice or invoice, to a nonrefundable monthly fee of $195.00 to be collected via ACH Debit and which shall be due for each month, or portion thereof, during the tenure of this Agreement. Said fee shall be due and owing upon the first monthly anniversary of the date of this agreement and on every monthly anniversary of the date of this agreement while seller maintains an RTR balance to Company. Each Monthly Fee shall be earned upon Company's receipt thereof in consideration of Company's accepting this engagement and servicing the instant transaction as described herein and shall in no way be 3 Initials: Doc ID: a3a7e5de8fefdfc3dd31ba3185890fT332dga6c5 FILED: NASSAU COUNTY CLERK 04/22/2024 01:45 PM INDEX NO. 607044/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/22/2024 deemed to represent a diminution of the purchase price set forth herein. II. REPRESENTATIONS, WARRANTIES AND COVENANTS. Merchant represents warrants and covenants that, as of this date and during the term of this Agreement: 2.1 Financial Condition and Financial Information. Merchant's and Guarantor's bank and financial statements, copies of which have been furnished to Company, and future statements which will be furnished to Company hereafter at the discretion of company, fairly represent the financial condition of Merchant at such dates and since those dates there has been no material adverse changes, financial or otherwise, in such condition, operation or ownership of Merchant. Merchant and Guarantors have a continuing affirmative obligation to inform Company of any material adverse change in their financial condition, operation or ownership. Company may request statements at any time during the performance of this agreement and the Merchant and Guarantors shall provide them to Company within 10 business days of such a request. Failure to do so is a material breach of this agreement. 2.2 Governmental Approvals. Merchant is in compliance and shall comply with all laws and has valid permits, licenses and authorizations to operate, own and lease its properties and to conduct the business in which it is presently engaged and/or will engage in hereafter. 2.3 Authorization. Merchant and the person(s) signing this agreement on behalf of Merchant have full power and authority to incur and perform the obligations under this Agreement, all of which have been duly authorized. 2.4 Insurance. Merchant will maintain business interruption insurance naming Company as loss payee and additional insured in amounts and against risks as are satisfactory to Company and shall provide Company proof of such upon request. 2.5 Processing and banking agreement. Merchant will not change its processor, financial institution or bank account(s) or take any other action that could have an adverse effect upon Merchanes obligations under this Agreement without Company's prior written consent. Any such changes shall be a material breach of this Agreement. 2.6 Change of Name or Location. Merchant will not conduct Merchanis businesses under any name other than as disclosed to the Processor and Company, nor shall Merchant change any of its places of business without prior written consent by Company. 2.7 No Bankruptcy. As of this date of this Agreement, Merchant is not insolvent and does not contemplate filing for bankruptcy in the next 6 six months and has not consulted with a bankruptcy attorney or debt consolidation company within the past 6 months. Merchant has not filed any petition for bankruptcy protection under Title AA of the United States Code and there has been no involuntary petition brought or pending against Merchant. Merchant further warrants that it does not anticipate filing any such petition and it does not anticipate that an involuntary petition will be filed against it. 2.8 Working Capital Funding. Merchant shall not enter into any arrangement, agreement or commitment that relates to or involves the Receipts, whether in the form of a purchase of, a loan against, collateral against or the sale or purchase of credits against, Receipts or future check sales with any party other than Company without prior written approval from Company. 2.9 Unencumbered Receipts. Merchant has good, complete and marketable title to all Receipts, free and clear of any and all liabilities, liens, claims, changes, restrictions, conditions, options, rights, mortgages, security interests, equities, pledges and encumbrances of any kind or nature whatsoever or any other rights or interests that may be inconsistent with the transactions contemplated with, or adverse to the interests of Company. 2.10 Business Purpose. Merchant is a valid business in good standing under the laws of the jurisdictions in which it is organized and/or operates, and Merchants entering into this Agreement for business purposes and not as a consumer for personal, family or household purposes. 2.11 Default Under Other Contracts. Merchants execution of and/or performance under this Agreement will not cause or create an event of default by Merchant under any contract with another person or entity. 2.12 Good faith. Merchant and Guarantors hereby affirm that Merchant is receiving the Purchase Price and selling Company the Purchased Amount in good faith and will use the Purchase Price funds to maintain and grow Merchanes business. Based upon Merchanes and Guarantor's calculations and experience in operating Merchanes business, Merchant and Guarantor are confident that the Purchase Price paid by Company in exchange for the Purchased Amount of Future Receipts will be used in a manner that will benefit Merchanes current and future business operations. III. EVENTS OF DEFAULT AND REMEDIES Defaulf' 3.1 Events of Default. The occurrence of any of the following events shall constitute an "Event of hereunder: (a) Merchant shall violate any term or covenant in this Agreement; (b) Any representation or warranty by Merchant in this Agreement shall prove to have been incorrect, false or misleading in any material respect when made; (c) Merchant interferes with Company's right to collect the Specific Daily Amount (and payment for arrears, if any) in violation of this Agreement: (d) the sending of notice of termination by Guarantor; (e) Merchant shall transport, move, interrupt, suspend, dissolve or terminate its business; (f) Merchant shall transfer or sell all or substantially all of its assets; (h) Merchant shall make or send notice of any intended bulk sale or transfer by Merchant; (i) Merchant shall use multiple depository accounts without the prior written consent of Company; (j) Merchant shall change its depositing account without the prior written consent of Company; (k) Merchant shall perform any act that reduces the value of any Collateral granted under this Agreement; or (1) Merchant shall default under any of the terms, covenants and conditions of any other agreement with Company. 3.2 Remedies. In case any Event of Default occurs and is not waived pursuant to Section 4.4.1 hereof, Company may proceed to protect and enforce its rights or remedies by suit in equity or by action at law, or both, whether for the specific performance of any covenant, agreement or other provision contained herein, or to enforce the discharge of Merchanes obligations hereunder (including the Personal Guarantee) or any other legal or equitable right or remedy. Company shall use but is not limited to all protections stated in Section 1.12 of this Agreement. All rights, powers and remedies of Company in connection with this Agreement may be exercised at any time by Company after the occurrence of an Event of Default, are cumulative and not exclusive, and shall be in addition to any other rights, powers or remedies provided by law or equity. 4 Initials: Doc ID: a3a7e5de8fefdfc3dd31ba3185890fT332dga6c5 FILED: NASSAU COUNTY CLERK 04/22/2024 01:45 PM INDEX NO. 607044/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/22/2024 3.3 Costs. Merchant shall pay to Company all reasonable costs associated with (a) a breach by Merchant of the Covenants in this Agreement and the enforcement thereof, and (b) the enforcement of Company's remedies set forth in Section 4.2 above, including but not limited to attorneys' court costs and fees. 3.4 Required Notifications. Merchant is required to give Company written notice within 24 hours of any filing under Title 11 of the days' United States Code. Merchant is required to give Company seven written notice prior to the closing of any sale of all or substantially all of the Merchanis assets or stock. IV. MISCELLANEOUS 4.1 Modifications; Agreements. No modification, amendment, waiver or consent of any provision of this Agreement shall be effective unless the same shall be in writing and signed by Company. 4.2 Assignment. Company may assign, transfer or sell its rights to receive the Purchased Amount or delegate its duties hereunder, either in whole or in part. 4.3 Notices. All notices, requests, consent, demands and other communications hereunder shall be delivered by certified mail with return receipt requested or United States Postal Service Priority Mail with tracking to the respective parties to this Agreement at the addresses set forth in this Agreement and shall become effective only upon receipt. 4.4 Waiver of Remedies. No failure on the part of 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 preclude any other or further exercise thereof or the exercise of any other right. The remedies provided hereunder are cumulative and not exclusive of any remedies provided by law or equity. 4.5 Binding Effect; Governing Law, Venue and Jurisdiction. This Agreement shall be binding upon and inure to the benefit of Merchant, 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 Company which consent may be withheld in Company sole discretion. Company reserves the rights to assign this Agreement with or without prior written notice to Merchant. MERCHANT AND ANY GUARANTOR(S) HEREBY CONSENT AND AGREE THAT THE STATE OR FEDERAL COURTS LOCATED IN NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN MERCHANT and/or GUARANTOR(S) AND COMPANY PERTAINING TO THIS AGREEMENT AND/OR THE GUARANTY OR TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT AND/OR THE GUARANTY; PROVIDED, THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE COMPANY FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO COLLECT UPON ITS RIGHTS PURSUANT TO THE PSFRA AND/OR THE GUARANTY OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF COMPANY. MERCHANT AND GUARANTOR EXPRESSLY SUBMIT AND CONSENT IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND GUARANTOR HEREBY WAIVES ANY OBJECTION THAT IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS. GUARANTOR HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT and acknowledges that the transmittal of documents instituting any Suit against Merchant and/or Guarantor may be served upon Company and Guarantor via the email address located within the PSFRA and that such transmittal is reasonably calculated to apprise Merchant and/or Guarantor of the pendency of the action and afford it an opportunity to respond. This Agreement shall be govemed by and construed in accordance with the laws of the State of New York, without regards to any applicable principals of conflicts of law. Any suit, action or proceeding arising hereunder, or the interpretation, performance or breach hereof, shall, if Company so elects, be instituted in any court sitting in New York, (the 'Acceptable Forums"). Merchant agrees that the Acceptable Forums are convenient to it and submits to the jurisdiction of the Acceptable Forums and waives any and all objections to jurisdiction or venue. Should such proceeding be initiated in any other forum, Merchant waives any right to oppose any motion or application made by Company to transfer such proceeding to an Acceptable Forum. Initials: 4.6 Survival of Representation, etc. All representations, warranties and covenants herein shall survive the execution and delivery of this Agreement and shall continue in full force until all obligations under this Agreement shall have been satisfied in full and this Agreement shall have terminated. 4.7 Severability. In case any of the provisions in this Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of any other provision contained herein shall not in any way be affected or impaired. 4.8 Interpretation. All Parties hereto have reviewing this Agreement with an attorney of their own choosing and have relied only on their own attorney's guidance and advice. No construction determinations shall be made against either Party hereto as drafter. 4.9 Monitoring, Recording and Solicitations. Merchant and Guarantor authorize Company, its affiliates agents and independent contractors to contact Merchant and Guarantor at any telephone number Merchant or Guarantor provides to Company or from which Merchant or Guarantor places a call to Company or any telephone number where Company believes it may reach Company or Guarantor, using any means of communication including but not limited to calls or text messages to mobile, cellular, wireless or similar devices or calls or text messages using an automated telephone dialing system and/or artificial voices or prerecorded messages, even if Merchant or Guarantor incurs charges for receiving such communications. Merchant and Guarantor also agree that Company, its affiliates agents and independent contractors may use any other medium not prohibited by law including but not limited to mail, email and facsimile to contact Merchant or Guarantor. Merchant or Guarantor expressly consent to conduct business by electronic means. Merchant or Guarantor are not required to agreement to section 4.9 in order to enter into this Agreement. If Merchant or Guarantor wish to opt out of Section 4.9 or wish to change how Company contacts them, please contact Company at 888-499-2939. 5 Initials: Doc ID: a3a7e5de8fefdfc3dd31ba3185890fT332dga6c5 FILED: NASSAU COUNTY CLERK 04/22/2024 01:45 PM INDEX NO. 607044/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/22/2024 4.10 Entire Agreement. Any provision hereof prohibited by law shall be ineffective only to the extent of such prohibition without invalidating the remaining provisions hereof. This Agreement and Security Agreement and Guaranty hereto embody the entire agreement between Merchant and Company and supersede all prior agreements and understandings relating to the subject matter hereof. V. JURY TRIAL WAIVER. THE PARTIES HERETO WAIVE TRIAL BYJURY IN ANY COURT IN ANY SUIT, ACTION OR PROCEEDING ON ANY MATTER ARISING IN CONNECTION WITH OR IN ANY WAY RELATED TO THE TRANSACTIONS OF WHICH THIS AGREEMENT IS A PART OR THE ENFORCEMENT HEREOF. 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. 5.1 CLASS ACTION WAIVER. THE PARTIES HERETO WAIVE ANYRIGHT TO ASSERT ANY CLAIMS AGAINST THE OTHER PARTY AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW AGAINST PUBLIC POLICY. TO THE EXTENT EITHER PARTY IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES HEREBY AGREE THAT: (1) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS' FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOT WITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT); AND (2) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION. VI. Arbitration. Notwithstanding the foregoing, any dispute, claim or controversy arising out of or relating to this agreement, the security agreement or the guaranty(s) herein, or the breach of any of the said agreement, security agreement or the guaranty(s) shall be, at the election of either party, settled by arbitration administered by Mediation and Civil Arbitration, Inc. d/b/a RapidRuling (www.rapidruling.com) in accordance with its Commercial Arbitration Rules effective at the time a claim is made, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. An election to arbitrate by either party shall be deemed effective by the commencement of an arbitration proceeding with Mediation and Civil Arbitration, Inc. The Parties consent to electronic service of process, with service to be made to the following email addresses and legal@thelcfgroup.com, and/or service in accordance with section 4.3, supra, via certified mail with return receipt requested or United States Postal Service Priority Mail with tracking. The Parties agree that, in the event of confirmation and enforcement, the delinquent party will be responsible for any attomey, court or other fees associated with such action. The parties agree to split all Mediation and Civil Arbitration, Inc. d/b/a RapidRuling fees evenly and the commencing party shall be entitled to any unreimbursed monies paid on behalf of the non-commencing party within any award. VII. Facsimile and Electronic Acceptance: Facsimile and electronic signature shall be deemed acceptable for all purposes. 6 Initials: Doc ID: a3a7e5de8fefdfc3dd31ba3185890fT332dga6c5 FILED: NASSAU COUNTY CLERK 04/22/2024 01:45 PM INDEX NO. 607044/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/22/2024 LCF SECURITY AGREEMENT AND GUARANTY Between THE LCF GROUP, INC.("Company"), AND ATL Logistics LLC DBA ATL Logistics("Merchant") Physical Address: 813 Barwick PI City: Willard State: Missouri Zip: 65781 Federal Tax ID# AND Guarantors(collectively referred to as "Corporate Guarantors"): Joe Rold Transport, LLC EIN SECURITY AGREEMENT Security Interest. This Security Agreement and Guaranty (the "Agreement") will constitute a security agreement under the Uniform Commercial Code (the "UCC"). Merchant and any Guarantor(s) grants to Company a security interest in and lien upon: (a) all accounts, chattel paper, documents, equipment, general intangibles, instruments, inventory or investment property, as those terms are defined in Article 9 of the UCC, now or hereafter owned or acquired by Merchant, (b) all proceeds, as that term is defined in Article 9 of the UCC, (c) all funds at any time in the Merchanis accounts, regardless of the source of such funds, (d) present and future Electronic Check Transactions, and (e) any amount which may be due to Company under this Agreement, including but not limited to all rights to receive any payments or credits under this Agreement (collectively the "Secured Assets"). Merchant agrees to provide other security to Company upon request to secure Merchanis obligations under the Agreements. Merchant agrees that if at any time there are insufficient funds in Merchanes Account to cover Company's entitlements under this Agreement, Company is granted a further security interest in all of Merchanes assets of any kind whatsoever, and such assets shall then become Secured Assets. These security interests and liens will secure all Company's entitlements under the Agreements and any other agreements now existing or later entered into between Merchant, Company or an affiliate of Company. Company is authorized to file any and all notices or filings it deems necessary or appropriate to enforce its entitlements hereunder. This security interest may be exercised by Company without notice or demand of any kind by making an immediate withdrawal or freezing the Secured Assets. Company shall have the right to notify account debtors at any time. Pursuant to Article 9 of the UCC, as amended from time to time, Company has control over and may direct the disposition of the Secured Assets without further consent of Merchant. Merchant hereby represents and warrants that no other person or entity has a security interest in the Secured Assets. With respect to such security interests and liens, Company will have all rights afforded under the UCC, any other applicable law and in equity. Merchant will obtain from Company written consent prior to granting a security interest of any kind in the Secured Assets to a third party. Merchant agrees that this is a contract of recoupment and Company is not required to file a motion for relief from a bankruptcy action automatic stay to realize on any of the Secured Assets. Nevertheless, Merchant agrees not to contest or object to any motion for relief from the automatic stay filed by Company. Merchant agrees to execute and deliver to Company such instruments and documents Company may reasonabl