Preview
FILED: KINGS COUNTY CLERK 03/09/2022 03:05 PM INDEX NO. 506997/2022
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/09/2022
EXHIBIT
A
FILED: KINGS COUNTY CLERK 03/09/2022 03:05 PM INDEX NO. 506997/2022
DocuSign Envelope ID: DBEBBE3D-AEA1-413B-B90D-1FBC3B585F84
3D02F179-3267-42AA-AF57-B95CDADBD229
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/09/2022
Page 1 of 19 ver. 5/20/21
HYBRID ADVANCE
5309 13th Ave, Brooklyn, NY 11219
(929) 810-110
STANDARD MERCHANT CASH ADVANCE AGREEMENT
This is an Agreement dated __________________
12/14/2021 by and between H A A (“HA”) and each
merchant listed below (“Merchant”).
Merchant’s Legal Name: _____________________________________________________________________________
FINAL GRADE L.L.C.
D/B/A/: ________________________________________________________
FINAL GRADE Fed ID #: ________________________
84-2644237
Type of Entity:
___ Corporation ___ Limited Liability Company ___ Limited Partnership ___ Limited LiabilityPartnership ___ Sole
Proprietor
Business Address: ____________________________________
2360 RIVER RD City: _______________
PETOSKEY State: _______
MI Zip: _________
49770
Contact Address: _____________________________________ City: _______________ State: _______
2360RIVER RD PETOSKEY MI Zip: _________
49770
E-mail Address: _____________________________________
finalgrademi@gmail.com Phone Number: ________________________________
2313400734
Purchase Price
This is the amount being paid to Merchant(s) for the Receivables Purchased Amount
(defined below). 60,000.00
$ _____________________
Receivables Purchased Amount
This is the amount of Receivables (defined in Section 1 below) being sold. 89,940.00
$ _____________________
Specified Percentage
This is the percentage of Receivables (defined below) to be delivered until the
Receivables Purchased Amount is paid in full. 25
______ %
Net Funds Provided
This is the net amount being paid to or on behalf of Merchant(s) after deduction of
applicable fees listed in Section 2 below. 55,800.00
$ _____________________
Initial Estimated Payment
This is only applicable if an Addendum for Estimated Payments is being signed. This is
the initial amount of periodic payments collected from Merchant(s) as an approximation $ _____________________
749.50
of no more than the Specified Percentage of the Receivables and is subject to
reconciliation as set forth in Section 4 below. per ___________________
day
TERMS AND CONDITIONS
1. Sale of Future Receipts. Merchant(s) hereby sell, assign, and transfer to HA (making HA the absolute
owner) in consideration of the funds provided (“Purchase Price”) specified above, all of each Merchant’s future accounts,
contract rights, and other obligations arising from or relating to the payment of monies from each Merchant’s customers
and/or other third party payors (the “Receivables”, defined as all payments made by cash, check, credit or debit card,
electronic transfer, or other form of monetary payment in the ordinary course of each merchant’s business), for the
payment of each Merchant’s sale of goods or services until the amount specified above (the “Receivables Purchased
Amount”) has been delivered by Merchant(s) to HA. Each Merchant hereby acknowledges that untilthe Receivables
Purchased Amount has been received in full by HA, each Merchant’s Receivables, up to the balance of the Receivables
Purchased Amount, are the property of HA and not the property of any Merchant. Each Merchant agrees that itis a
fiduciary for HA and that each Merchant will hold Receivables in trust for HA in its capacity as a fiduciary for HA.
I have read and agree to the terms and conditions set forth above:
__________________________________________________________
Name and Title: _________________________
MARTIN THOMAS LUMPP Date: ______________
12/14/2021
FILED: KINGS COUNTY CLERK 03/09/2022 03:05 PM INDEX NO. 506997/2022
DocuSign Envelope ID: DBEBBE3D-AEA1-413B-B90D-1FBC3B585F84
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STANDARD MERCHANT CASH ADVANCE AGREEMENT
The Receivables Purchased Amount shall be paid to HA by each Merchant irrevocably authorizing only one
depositing account acceptable to HA (the “Account”) to remit the percentage specified above (the “Specified
Percentage”) of each Merchant’s settlement amounts due from each transaction, until such time as HA receives
payment in full of the Receivables Purchased Amount. Each Merchant hereby authorizes HA to ACH debit the specified
remittances from the Account on a daily basis as of the next business day after the date of this Agreement and will
provide HA with all required access codes and monthly bank statements. Each Merchant understands that it will be held
responsible for any fees resulting from a rejected ACH attempt or an Event of Default (see Section 2). HA is not
responsible for any overdrafts or rejected transactions that may result from HA ACH debiting the Specified Percentage
amounts under the terms of this Agreement.
2. Additional Fees. In addition to the Receivables Purchased Amount, each Merchant will be held responsible to
HA for the following fees, where applicable:
A. $_________
4,200.00 - to cover underwriting and the ACH debit program, as well as related expenses. This willbe
deducted from payment of the Purchase Price.
B. Wire Fee ‐ Merchant(s) shall receive funding electronically to the Account and will be charged $50.00 for a Fed
Wire or $0.00 for a bank ACH. This will be deducted from payment of the Purchase Price.
Blocked Account/Default ‐ $2,500.00 ‐ If HA considers an Event of Default to have taken place under Section
34.
UCC Fee ‐ $195.00 – to cover HA filing a UCC-1 financing statement to secure its interest in the Receivables
Purchased Amount. A $195.00 UCC termination fee will be charged if a UCC filing is terminated.
E. Court costs, arbitration fees, collection agency fees, attorney fees, expert fees, and any other expenses
incurred in litigation,arbitration, or the enforcement of any of HA legal or contractual rights against each Merchant
and/or each Guarantor, if required, as explained in other Sections of this Agreement.
3. Cap on Collection of the Receivables Purchased Amount. The amount that HA will collect from
Merchant(s) towards the Receivables Purchased Amount during any specific ________
day will be capped at
$______________
749.50 (the “Cap”). If the Specified Percentage of allReceivables for a specific ________
day is less than the
Cap, then in addition to the Specified Percentage of Receivables for thatday________, HA will be permitted to collect any
Receivables it did not previously collect due to the Cap such that the total amount collected during that day ________ does
not exceed the Cap. The Cap is not applicable to make up for a business day on which HA is closed and does not ACH
debit the Account, to subsequent attempts to collect a rejected or blocked ACH payment, or for the collection of any of the
fees listed in Section 2 or if any Event of Default listed in Section 34 is considered by HA to have taken place.
4. Reconciliations. Any Merchant may give written notice to HA requesting that HA conduct a reconciliation in
order to ensure that the amount that HA has collected equals the Specified Percentage of Merchant(s)’s Receivables
under thisAgreement. Any Merchant may give written notice requesting a reconciliation. A reconciliation may also be
requested by e-mail to and such notice will be deemed to have been received if and
when HA sends a reply e-mail (but not a read receipt). If such reconciliation determines that HA collected more than it was
entitled to, then HA will credit to the Account all amounts to which HA was not entitled within seven days thereafter. If such
reconciliation determines that HA collected less than it was entitled to, then HA will debit from the Account all additional
amounts to which HA was entitled within seven days thereafter. In order to effectuate this reconciliation, any Merchant
must produce with its request the login and password for the Account and any and all bank statements and merchant
statements covering the period from the date of this Agreement through the date of the request for a
reconciliation. HA willcomplete each such reconciliation within two business days after receipt of a written request for
one accompanied by the information and documents required for it. Nothing herein limits the amount of times that such a
reconciliation may be requested.
5. Prepayments. Although there is no obligation to do so, any Merchant may prepay any amount towards the
Receivables Purchased Amount. There will be no penalty for any prepayment made by any Merchant. Any Merchant may
elect to terminate this Agreement by prepaying HA the amount of the balance of the Receivables Purchased Amount at
that time.
I have read and agree to the terms and conditions set forth above:
__________________________________________________________
Name and Title: _________________________
MARTIN THOMAS LUMPP Date: ______________
12/14/2021
FILED: KINGS COUNTY CLERK 03/09/2022 03:05 PM INDEX NO. 506997/2022
DocuSign Envelope ID: DBEBBE3D-AEA1-413B-B90D-1FBC3B585F84
3D02F179-3267-42AA-AF57-B95CDADBD229
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STANDARD MERCHANT CASH ADVANCE AGREEMENT
6. Merchant Deposit Agreement. Merchant(s) shall appoint a bank acceptable to HA, to obtain electronic fund
transfer services and/or “ACH” payments. Merchant(s) shall provide HA and/or its authorized agent with all of the
information, authorizations, and passwords necessary to verify each Merchant’s Receivables. Merchant(s) shall authorize
HA and/or its agent(s) to deduct the amounts owed to HA for the Receivables as specified herein from settlement
amounts which would otherwise be due to each Merchant and to pay such amounts to HA by permitting HA to
withdraw the Specified Percentage by ACH debiting of the account. The authorization shall be irrevocable absent HA
written consent.
7. Term of Agreement. The term of this Agreement is indefinite and shall continue until HA receives the full
Receivables Purchased Amount, or earlier if terminated pursuant to any provision of this Agreement. The provisions of
Sections 4, 6, 7, 8, 10, 11, 13, 14, 15, 17, 18, 19, 22, 23, 28, 31, 32, 33, 34, 35, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47,
48, 49, 50, 51, 52, 53, 54, 55, 56, 57, and 58 shall survive any termination of this Agreement.
8. Ordinary Course of Business. Each Merchant acknowledges that it is entering into this Agreement in the
ordinary course of its business and that the payments to be made from each Merchant to HA under this Agreement are
being made in the ordinary course of each Merchant’s business.
9. Financial Condition. Each Merchant and each Guarantor (Guarantor being defined as each signatory to the
Guarantee of this Agreement) authorizes HA and its agent(s) to investigate each Merchant’s financial responsibility and
history, and will provide to HA any bank or financial statements, tax returns, and other documents and records, as HA
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. HA is authorized to update such information and financial
profiles from time to time as it deems appropriate.
10. Monitoring, Recording, and Electronic Communications. HA may choose to monitor and/or record
telephone calls with any Merchant and its owners, employees, and agents. By signing this Agreement, each Merchant
agrees that any callbetween HA and any Merchant or itsrepresentatives may be monitored and/or recorded. Each
Merchant and each Guarantor grants access for HA to enter any Merchant’s premises and to observe any Merchant’s
premises without any prior notice to any Merchant at any time after execution of this Agreement.
HA may use automated telephone dialing, text messaging systems, and e-mail to provide messages to
Merchant(s), Owner(s) (Owner being defined as each person who signs this Agreement on behalf of a Merchant), and
Guarantor(s) about Merchant(s)’s account. Telephone messages may be played by a machine automatically when the
telephone is answered, whether answered by an Owner, a Guarantor, or someone else. These messages may also be
recorded by the recipient’s answering machine or voice mail. Each Merchant, each Owner, and each Guarantor gives
HA permission to call or send a text message to any telephone number given to HA in connection with this Agreement and
to play pre-recorded messages and/or send text messages with information about this Agreement and/or any
Merchant’s account over the phone. Each Merchant, each Owner, and each Guarantor also gives HA permission to
communicate such information to them by e-mail. Each Merchant, each Owner, and each Guarantor agree that HA will not
be liable to any of them for any such calls or electronic communications, even if information is communicated to an
unintended recipient. Each Merchant, each Owner, and each Guarantor acknowledge that when they receive such calls or
electronic communications, they may incur a charge from the company that provides them with telecommunications,
wireless, and/or Internet services, and that HA has no liability for any such charges.
11. Accuracy of Information Furnished by Merchant and Investigation Thereof. 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.
Each Merchant and each Owner signing this Agreement represent that he or she is authorized to sign this Agreement for
each Merchant, legally binding said Merchant to itsobligations under this Agreement and that the information provided
herein and in all of HA documents, forms, and recorded interview(s) is true, accurate, and complete in all respects.
HA may produce a monthly statement reflecting the delivery of the Specified Percentage of Receivables from
Merchant(s) to HA. An investigative report may be made in connection with the Agreement. Each Merchant and each
Owner signing this Agreement authorize HA, its agents and representatives, and any credit‐reporting agency engaged by
HA, to (i) investigate any references given or any other statements obtained from or about each Merchant or any of
I have read and agree to the terms and conditions set forth above:
__________________________________________________________
MARTIN THOMAS LUMPP
Name and Title: _________________________ 12/14/2021
Date: ______________
FILED: KINGS COUNTY CLERK 03/09/2022 03:05 PM INDEX NO. 506997/2022
DocuSign Envelope ID: DBEBBE3D-AEA1-413B-B90D-1FBC3B585F84
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STANDARD MERCHANT CASH ADVANCE AGREEMENT
its Owners for the purpose of this Agreement, and (ii) pull credit report at any time now or for so long as any Merchant
and/or Owners(s) continue to have any obligation to HA under this Agreement or for HA ability to determine any
Merchant’s eligibility
to enter into any future agreement with HA. Any misrepresentation made by any Merchant or
Owner in connection with this Agreement may constitute a separate claim for fraud or intentional misrepresentation.
Authorization for soft pulls: Each Merchant and each Owner understands that by signing this Agreement, they are
providing ‘written instructions’ to HA under the Fair Credit Reporting Act, authorizing HA to obtain information from
their personal credit profile or other information from Experian, TransUnion, and Equifax. Each Merchant and each
Guarantor authorizes HA to obtain such information solely to conduct a pre-qualification for credit.
Authorization for hard pulls:Each Merchant and each Owner understands that by signing this Agreement, they
are providing ‘written instructions’ to HA under the Fair Credit Reporting Act, authorizing HA to obtain information from
their personal credit profile or other information from Experian, TransUnion, and Equifax. Each Merchant and each
Guarantor authorizes HA to obtain such information in accordance with a merchant cash advance application.
12. Transactional History. Each Merchant authorizes its bank to provide HA with its banking and/or credit card
processing history.
13. Indemnification. Each Merchant and each Guarantor jointly and severally indemnify and hold harmless each
Merchant’s credit card and check processors (collectively, “Processor”) and Processor’s officers, directors, and
shareholders against all losses, damages, claims, liabilities,
and expenses (including reasonable attorney and expert
fees) incurred by Processor resulting from (a) claims asserted by HA for monies owed to HA from any Merchant and
actions taken by any Processor in reliance upon information or instructions provided by HA.
No Liability. In no event will HA be liable for any claims asserted by any 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 each Merchant and each Guarantor.
15. Sale of Receivables. Each Merchant and HA agree that the Purchase Price under this Agreement is in
exchange for the Receivables Purchased Amount and that such Purchase Price isnot intended to be, nor shall itbe
construed as a loan from HA to any Merchant. HA is entering into this Agreement knowing the risks that each
Merchant’s business may decline or fail, resulting in HA not receiving the Receivables Purchased Amount. Each
Merchant agrees that the Purchase Price in exchange for the Receivables pursuant to this Agreement equals the fair
market value of such Receivables. HA has purchased and shall own all the Receivables described in this Agreement up to
the fullReceivables Purchased Amount as the Receivables are created. Payments made to HA in respect to the full
amount of the Receivables shall be conditioned upon each Merchant’s sale of products and services and the payment
therefor by each Merchant’s customers in the manner provided in this Agreement. Although certain jurisdictions require
the disclosure of an Annual Percentage Rate or APR in connection with this Agreement, those disclosures do not change
the fact that the transaction encompassed by this Agreement is not a loan and does not have an interest rate.
16. Power of Attorney. Each Merchant irrevocably appoints HA 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 HA, or, ifHA
considers an Event of Default to have taken place under Section 34, to settle all obligations due to HA from each
Merchant, 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 (which is defined in Section 33); (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 each
Merchant’s name on any invoice, bill of lading, or assignment directing customers or account debtors to make payment
directly to HA; and (v) to file any claims or take any action or institute any proceeding which HA may deem necessary for
the collection of any of the unpaid Receivables Purchased Amount from the Collateral, or otherwise to enforce its
rights with respect to payment of the Receivables Purchased Amount.
17. Protections Against Default. The following Protections 1 through 7 may be invoked by HA, immediately
and without notice to any Merchant in the event:
(a) Any Merchant takes any action to discourage the use of methods of payment ordinarily and customarily used
I have read and agree to the terms and conditions set forth above:
__________________________________________________________
MARTIN THOMAS LUMPP
Name and Title: _________________________ 12/14/2021
Date: ______________
FILED: KINGS COUNTY CLERK 03/09/2022 03:05 PM INDEX NO. 506997/2022
DocuSign Envelope ID: DBEBBE3D-AEA1-413B-B90D-1FBC3B585F84
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/09/2022
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STANDARD MERCHANT CASH ADVANCE AGREEMENT
by its customers or permits any event to occur that could have an adverse effect on the use, acceptance, or authorization
of checks and credit cards forthe purchase ofany Merchant's services and products;
(b) Any Merchant changes itsarrangements with any Processor in any way that isadverse to HA;
(c) Any Merchant changes any Processor through which the Receivables are settled to another electronic check
and/or credit card processor or permits any event to occur that could cause diversion of any Merchant's check and/or
credit card transactions to another such processor
(d) Any Merchant interrupts the operation of its business (other than adverse weather, natural disasters, or acts of
God) or transfers, moves, sells,disposes, or otherwise conveys itsbusiness or assets without (i)the express prior written
consent of HA and (ii)the written agreement of any purchaser or transferee to the assumption of allof any Merchant's
obligations under thisAgreement pursuant to documentation satisfactory to HA; or
(e) Any 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 any Merchant's goods or services with any means
other than checks and/or credit cards that are settled through Processor. These protections are in addition to any other
remedies available to HA at law, in equity, or otherwise available pursuant to this Agreement.
(f)HA considers any Event of Default listedin Section 34 to have taken place.
Protection 1: The fulluncollected Receivables Purchased Amount plus all fees due under this Agreement may
become due and payable infullimmediately.
Protection 2. HA may enforce the provisions of the Guarantee against Guarantor.
Protection 3. HA may enforce itssecurity interest in the Collateral identified in Section 33.
Protection 4.HA may proceed toprotect and enforce itsrights and remedies by litigationor arbitration. Protection
5. Ifrequested by HA, Merchant shall deliver to HA an executed assignment of lease of each
Merchant's premises in favor of HA. Upon breach of any provision in thisSection 17, HA may exercise itsrights under
such assignment of lease.
Protection 6. HA may debit any Merchant's depository accounts wherever situated by means of ACH debit or
electronic or facsimile signature on a computer-generated check drawn on any Merchant's bank account or otherwise, in
an amount consistent with the terms of thisAgreement.
Protection 7. HA will have the right,without waiving any of its rights and remedies and without notice to any
Merchant and/or Guarantor, to notify each Merchant's credit card and/or check processor of the sale of Receivables
hereunder and to direct such credit card processor to make payment to HA of allor any portion of the amounts received by
such credit card processor on behalf of each Merchant. Each Merchant grants to HA an irrevocable power-of-
hereby
attorney, which power-of-attorney will be coupled with an interest, and hereby appoints HA and its representatives as
each Merchant's attorney-in-fact to take any and all action necessary to direct such new or additional credit card and/or
check processor to make payment to HA as contemplated by this Section.
18. Protection of Information. Each Merchant and each person signing this Agreement on behalf of each
Merchant and/or as Owner, in respect of himself or herself personally, authorizes HA to disclose information concerning
each Merchant, Owner and/or Guarantor's credit standing and business conduct to agents, affiliates,
subsidiaries, and
credit reporting bureaus. Each Merchant, Guarantor, and Owner hereby waives to the maximum extent permitted by law
any claim for damages against HA or any of its affiliatesrelating to any (i) investigation undertaken by or on behalf of
HA as permitted by this Agreement or disclosure
(ii) of information as permitted by this Agreement.
19. Confidentiality. Each Merchant understands and agrees that the terms and conditions of the products and
services offered by HA, including this Agreement and any other HA documents (collectively, "Confidential
Information") are proprietary and confidential information of HA. Accordingly, unless disclosure is required by law or
court order, Merchant(s) shall not disclose Confidential Information of HA to any person other than an attorney,
accountant, financial advisor, or employee of any Merchant who needs to know such information for the purpose of
advising any Merchant ("Advisor"), provided such Advisor uses such information solely for the purpose of advising any
Merchant and firstagrees inwriting to be bound by the terms of thisSection 19.
as"
20. D/B/As. Each Merchant hereby acknowledges and agrees that HA may be using "doing business or
"d/b/a"
names in connection with various matters relating to the transaction between HA and each Merchant, including the
filingof UCC-1 financing statements and other notices or filings.
I have read and agree to the terms and conditions set forth above:
12/14/2021
Name and Title: Date:
FILED: KINGS COUNTY CLERK 03/09/2022 03:05 PM INDEX NO. 506997/2022
DocuSign Envelope ID: DBEBBE3D-AEA1-413B-B90D-1FBC3B585F84
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STANDARD MERCHANT CASH ADVANCE AGREEMENT
21. Financial Condition and Financial Information. Each Merchant represents, warrants, and covenants that its
bank and financial statements, copies of which have been furnished to HA, and future statements which will be
furnished hereafter at the request of HA, fairly represent the financial condition of each Merchant at such dates, and that
since those dates there have been no material adverse changes, financial or otherwise, in such condition, operation, or
ownership of any Merchant. Each Merchant has a continuing affirmative obligation to advise HA of any material adverse
change in its financial condition, operation, or ownership.
22. Governmental Approvals. Each Merchant represents, warrants, and covenants that it is in compliance and
shall comply with all laws and has valid permits, authorizations, and licenses to own, operate, and lease its properties and
to conduct the business in which it is presently engaged.
23. Authorization. Each Merchant represents, warrants, and covenants that itand each person signing this
Agreement on behalf of each Merchant has full power and authority to incur and perform the obligations under this
Agreement, all of which have been duly authorized.
24. Insurance. Each Merchant represents, warrants, and covenants that it willmaintain business‐interruption
insurance naming HA as loss payee and additional insured in amounts and against risks as are satisfactory to HA and
shall provide HA proof of such insurance upon request.
25. Electronic Check Processing Agreement. Each Merchant represents, warrants, and covenants that itwill
not, without HA prior written consent, change its Processor, add terminals, change itsfinancial institution or bank
account, or take any other action that could have any adverse effect upon any Merchant’s obligations under this
Agreement.
26. Change of Name or Location. Each Merchant represents, warrants, and covenants that it will not conduct its
business under any name other than as disclosed to HA or change any place(s) of its business without prior written
consent from HA.
27. Estoppel Certificate. Each Merchant represents, warrants, and covenants that it will, at any time, and from
time to time, upon at least two day’s prior notice from HA to that Merchant, execute, acknowledge, and deliver to HA and/
or to any other person or entity specified by HA, a statement certifying that this Agreement is unmodified and in full force
and effect (or, ifthere have been modifications, that the same is in fullforce and effect as modified and stating the
modifications) and stating the dates which the Receivables Purchased Amount or any portion thereof have been paid.
28. No Bankruptcy. Each Merchant represents, warrants, and covenants that as of the date of this Agreement, it
does not contemplate and has not filed any petition for bankruptcy protection under Title 11 of the United States Code and
there has been no involuntary petition brought or pending against any Merchant. Each Merchant further warrants that it
does not anticipate filing any such bankruptcy petition and it does not anticipate that an involuntary petition will be filed
against it. Each Merchant further warrants that there will be no statutory presumption that it would have been insolvent on
the date of this Agreement.
29. Unencumbered Receivables. Each Merchant represents, warrants, and covenants that it has good,
complete, and marketable titleto all Receivables, 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 this Agreement or adverse to the interests
of HA, other than any for which HA has actual or constructive knowledge as of the date of this Agreement.
30. Stacking. Each Merchant represents, warrants, and covenants that it will not enter into with any party other
than HA any arrangement, agreement, or commitment that relates to or involves the Receivables, whether in the form of a
purchase of, a loan against, collateral against, or the sale or purchase of credits against Receivables without the prior
written consent of HA.
I have read and agree to the terms and conditions set forth above:
__________________________________________________________
MARTIN THOMAS LUMPP
Name and Title: _________________________ 12/14/2021
Date: ______________
FILED: KINGS COUNTY CLERK 03/09/2022 03:05 PM INDEX NO. 506997/2022
DocuSign Envelope ID: DBEBBE3D-AEA1-413B-B90D-1FBC3B585F84
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STANDARD MERCHANT CASH ADVANCE AGREEMENT
31. Business Purpose. Each Merchant represents, warrants, and covenants that it is a valid business in good
standing under the laws of the jurisdictions in which it is organized and/or operates, and each Merchant is entering into
this Agreement for business purposes and not as a consumer for personal, family, or household purposes.
32. Default Under Other Contracts. Each Merchant represents, warrants, and covenants that its execution of
and/or performance under this Agreement will not cause or create an event of default by any Merchant under any contract
with another person or entity.
33. Security Interest. To secure each Merchant’s payment and performance obligations to HA under this
Agreement and any future agreement with HA, each Merchant hereby grants to HA a security interest in collateral (the
“Collateral”), that is defined as collectively: (a) all accounts, including without limitation, all deposit accounts,
‐
accounts receivable, and other receivables, chattel paper, documents, equipment, general intangibles, instruments, and
inventory, as those terms are defined by Article 9 of the Uniform Commercial Code (the “UCC”), now or hereafter owned
or acquired by any Merchant; and (b) allproceeds, as that term is defined by Article 9 of the UCC. The parties
acknowledge and agree that any security interest granted to HA under any other agreement between any Merchant or
Guarantor and HA (the “Cross‐Collateral”) willsecure the obligations hereunder and under this Agreement. Negative
Pledge: Each Merchant agrees not to create, incur, assume, or permit to exist, directly or indirectly, any lien on or with
respect to any of the Collateral or the Cross‐Collateral, as applicable.
Each Merchant agrees to execute any documents or take any action in connection with this Agreement as HA
deems necessary to perfect or maintain HA firstpriority security interest in the Collateral and the Cross‐Collateral,
including the execution of any account control agreements. Each Merchant hereby authorizes HA to file any financing
statements deemed necessary by HA to perfect or maintain HA security interest, which financing statements may
contain notification that each Merchant has granted a negative pledge to HA with respect to the Collateral and the
Cross‐Collateral, and that any subsequent lienor may be tortiously interfering with HA rights. Each Merchant shall be
liable for and HA may charge and collect all costs and expenses, including but not limited to attorney fees, which may be
incurred by HA in protecting, preserving, and enforcing HA security interest and rights. Each Merchant further
acknowledges that HA may use another legal name and/or D/B/A or an agent when designating the Secured Party
when HA files the above‐referenced financing statement(s).
34. Events of Default. An “Event of Default” may be considered to have taken place if any of the following occur:
Any Merchant violates any term or covenant in this Agreement;
Any representation or warranty by any Merchant in any Agreement with HA that has not been terminated
proves to have been incorrect, false, or misleading in any material respect when made;
(3) Any Merchant fails to provide HA with written notice of any material change in its financial condition,
operation, or ownership within seven days thereafter (unless a different notice period is specifically provided for elsewhere
in this Agreement;
(4) the sending of notice of termination by any Merchant or Guarantor;
(5) Any Merchant transports, moves, interrupts, suspends, dissolves, or terminates its business without the prior
written consent of HA other than a bankruptcy filing;
Any Merchant transfers or sells all or substantially all of its assets without the prior written consent of HA;
Any Merchant makes or sends notice of any intended bulk sale or transfer by any Merchant without the prior
written consent of HA;
Any Merchant uses multiple depository accounts without the prior written consent of HA;
Any Merchant changes the Account without the prior written consent of HA;
HA is not provided with updated login or password information for the Account within one business day
after any such change is made by any Merchant;
(11) Any Merchant fails to send bank statements, merchant account statements, or bank login information for the
Account within two business days after a written request for same is made by HA;
(12) Any Merchant performs any act that reduces the value of any Collateral granted under this Agreement;
(13) Any Merchant fails to deposit its Receivables into the Account;
I have read and agree to the terms and conditions set forth above:
__________________________________________________________
MARTIN THOMAS LUMPP
Name and Title: _________________________ 12/14/2021
Preview
FILED: KINGS COUNTY CLERK 03/09/2022 03:05 PM INDEX NO. 506997/2022 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/09/2022 EXHIBIT A FILED: KINGS COUNTY CLERK 03/09/2022 03:05 PM INDEX NO. 506997/2022 DocuSign Envelope ID: DBEBBE3D-AEA1-413B-B90D-1FBC3B585F84 3D02F179-3267-42AA-AF57-B95CDADBD229 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/09/2022 Page 1 of 19 ver. 5/20/21 HYBRID ADVANCE 5309 13th Ave, Brooklyn, NY 11219 (929) 810-110 STANDARD MERCHANT CASH ADVANCE AGREEMENT This is an Agreement dated __________________ 12/14/2021 by and between H A A (“HA”) and each merchant listed below (“Merchant”). Merchant’s Legal Name: _____________________________________________________________________________ FINAL GRADE L.L.C. D/B/A/: ________________________________________________________ FINAL GRADE Fed ID #: ________________________ 84-2644237 Type of Entity: ___ Corporation ___ Limited Liability Company ___ Limited Partnership ___ Limited LiabilityPartnership ___ Sole Proprietor Business Address: ____________________________________ 2360 RIVER RD City: _______________ PETOSKEY State: _______ MI Zip: _________ 49770 Contact Address: _____________________________________ City: _______________ State: _______ 2360RIVER RD PETOSKEY MI Zip: _________ 49770 E-mail Address: _____________________________________ finalgrademi@gmail.com Phone Number: ________________________________ 2313400734 Purchase Price This is the amount being paid to Merchant(s) for the Receivables Purchased Amount (defined below). 60,000.00 $ _____________________ Receivables Purchased Amount This is the amount of Receivables (defined in Section 1 below) being sold. 89,940.00 $ _____________________ Specified Percentage This is the percentage of Receivables (defined below) to be delivered until the Receivables Purchased Amount is paid in full. 25 ______ % Net Funds Provided This is the net amount being paid to or on behalf of Merchant(s) after deduction of applicable fees listed in Section 2 below. 55,800.00 $ _____________________ Initial Estimated Payment This is only applicable if an Addendum for Estimated Payments is being signed. This is the initial amount of periodic payments collected from Merchant(s) as an approximation $ _____________________ 749.50 of no more than the Specified Percentage of the Receivables and is subject to reconciliation as set forth in Section 4 below. per ___________________ day TERMS AND CONDITIONS 1. Sale of Future Receipts. Merchant(s) hereby sell, assign, and transfer to HA (making HA the absolute owner) in consideration of the funds provided (“Purchase Price”) specified above, all of each Merchant’s future accounts, contract rights, and other obligations arising from or relating to the payment of monies from each Merchant’s customers and/or other third party payors (the “Receivables”, defined as all payments made by cash, check, credit or debit card, electronic transfer, or other form of monetary payment in the ordinary course of each merchant’s business), for the payment of each Merchant’s sale of goods or services until the amount specified above (the “Receivables Purchased Amount”) has been delivered by Merchant(s) to HA. Each Merchant hereby acknowledges that untilthe Receivables Purchased Amount has been received in full by HA, each Merchant’s Receivables, up to the balance of the Receivables Purchased Amount, are the property of HA and not the property of any Merchant. Each Merchant agrees that itis a fiduciary for HA and that each Merchant will hold Receivables in trust for HA in its capacity as a fiduciary for HA. I have read and agree to the terms and conditions set forth above: __________________________________________________________ Name and Title: _________________________ MARTIN THOMAS LUMPP Date: ______________ 12/14/2021 FILED: KINGS COUNTY CLERK 03/09/2022 03:05 PM INDEX NO. 506997/2022 DocuSign Envelope ID: DBEBBE3D-AEA1-413B-B90D-1FBC3B585F84 3D02F179-3267-42AA-AF57-B95CDADBD229 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/09/2022 Page 2 of 19 STANDARD MERCHANT CASH ADVANCE AGREEMENT The Receivables Purchased Amount shall be paid to HA by each Merchant irrevocably authorizing only one depositing account acceptable to HA (the “Account”) to remit the percentage specified above (the “Specified Percentage”) of each Merchant’s settlement amounts due from each transaction, until such time as HA receives payment in full of the Receivables Purchased Amount. Each Merchant hereby authorizes HA to ACH debit the specified remittances from the Account on a daily basis as of the next business day after the date of this Agreement and will provide HA with all required access codes and monthly bank statements. Each Merchant understands that it will be held responsible for any fees resulting from a rejected ACH attempt or an Event of Default (see Section 2). HA is not responsible for any overdrafts or rejected transactions that may result from HA ACH debiting the Specified Percentage amounts under the terms of this Agreement. 2. Additional Fees. In addition to the Receivables Purchased Amount, each Merchant will be held responsible to HA for the following fees, where applicable: A. $_________ 4,200.00 - to cover underwriting and the ACH debit program, as well as related expenses. This willbe deducted from payment of the Purchase Price. B. Wire Fee ‐ Merchant(s) shall receive funding electronically to the Account and will be charged $50.00 for a Fed Wire or $0.00 for a bank ACH. This will be deducted from payment of the Purchase Price. Blocked Account/Default ‐ $2,500.00 ‐ If HA considers an Event of Default to have taken place under Section 34. UCC Fee ‐ $195.00 – to cover HA filing a UCC-1 financing statement to secure its interest in the Receivables Purchased Amount. A $195.00 UCC termination fee will be charged if a UCC filing is terminated. E. Court costs, arbitration fees, collection agency fees, attorney fees, expert fees, and any other expenses incurred in litigation,arbitration, or the enforcement of any of HA legal or contractual rights against each Merchant and/or each Guarantor, if required, as explained in other Sections of this Agreement. 3. Cap on Collection of the Receivables Purchased Amount. The amount that HA will collect from Merchant(s) towards the Receivables Purchased Amount during any specific ________ day will be capped at $______________ 749.50 (the “Cap”). If the Specified Percentage of allReceivables for a specific ________ day is less than the Cap, then in addition to the Specified Percentage of Receivables for thatday________, HA will be permitted to collect any Receivables it did not previously collect due to the Cap such that the total amount collected during that day ________ does not exceed the Cap. The Cap is not applicable to make up for a business day on which HA is closed and does not ACH debit the Account, to subsequent attempts to collect a rejected or blocked ACH payment, or for the collection of any of the fees listed in Section 2 or if any Event of Default listed in Section 34 is considered by HA to have taken place. 4. Reconciliations. Any Merchant may give written notice to HA requesting that HA conduct a reconciliation in order to ensure that the amount that HA has collected equals the Specified Percentage of Merchant(s)’s Receivables under thisAgreement. Any Merchant may give written notice requesting a reconciliation. A reconciliation may also be requested by e-mail to and such notice will be deemed to have been received if and when HA sends a reply e-mail (but not a read receipt). If such reconciliation determines that HA collected more than it was entitled to, then HA will credit to the Account all amounts to which HA was not entitled within seven days thereafter. If such reconciliation determines that HA collected less than it was entitled to, then HA will debit from the Account all additional amounts to which HA was entitled within seven days thereafter. In order to effectuate this reconciliation, any Merchant must produce with its request the login and password for the Account and any and all bank statements and merchant statements covering the period from the date of this Agreement through the date of the request for a reconciliation. HA willcomplete each such reconciliation within two business days after receipt of a written request for one accompanied by the information and documents required for it. Nothing herein limits the amount of times that such a reconciliation may be requested. 5. Prepayments. Although there is no obligation to do so, any Merchant may prepay any amount towards the Receivables Purchased Amount. There will be no penalty for any prepayment made by any Merchant. Any Merchant may elect to terminate this Agreement by prepaying HA the amount of the balance of the Receivables Purchased Amount at that time. I have read and agree to the terms and conditions set forth above: __________________________________________________________ Name and Title: _________________________ MARTIN THOMAS LUMPP Date: ______________ 12/14/2021 FILED: KINGS COUNTY CLERK 03/09/2022 03:05 PM INDEX NO. 506997/2022 DocuSign Envelope ID: DBEBBE3D-AEA1-413B-B90D-1FBC3B585F84 3D02F179-3267-42AA-AF57-B95CDADBD229 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/09/2022 Page 3 of 19 STANDARD MERCHANT CASH ADVANCE AGREEMENT 6. Merchant Deposit Agreement. Merchant(s) shall appoint a bank acceptable to HA, to obtain electronic fund transfer services and/or “ACH” payments. Merchant(s) shall provide HA and/or its authorized agent with all of the information, authorizations, and passwords necessary to verify each Merchant’s Receivables. Merchant(s) shall authorize HA and/or its agent(s) to deduct the amounts owed to HA for the Receivables as specified herein from settlement amounts which would otherwise be due to each Merchant and to pay such amounts to HA by permitting HA to withdraw the Specified Percentage by ACH debiting of the account. The authorization shall be irrevocable absent HA written consent. 7. Term of Agreement. The term of this Agreement is indefinite and shall continue until HA receives the full Receivables Purchased Amount, or earlier if terminated pursuant to any provision of this Agreement. The provisions of Sections 4, 6, 7, 8, 10, 11, 13, 14, 15, 17, 18, 19, 22, 23, 28, 31, 32, 33, 34, 35, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, and 58 shall survive any termination of this Agreement. 8. Ordinary Course of Business. Each Merchant acknowledges that it is entering into this Agreement in the ordinary course of its business and that the payments to be made from each Merchant to HA under this Agreement are being made in the ordinary course of each Merchant’s business. 9. Financial Condition. Each Merchant and each Guarantor (Guarantor being defined as each signatory to the Guarantee of this Agreement) authorizes HA and its agent(s) to investigate each Merchant’s financial responsibility and history, and will provide to HA any bank or financial statements, tax returns, and other documents and records, as HA 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. HA is authorized to update such information and financial profiles from time to time as it deems appropriate. 10. Monitoring, Recording, and Electronic Communications. HA may choose to monitor and/or record telephone calls with any Merchant and its owners, employees, and agents. By signing this Agreement, each Merchant agrees that any callbetween HA and any Merchant or itsrepresentatives may be monitored and/or recorded. Each Merchant and each Guarantor grants access for HA to enter any Merchant’s premises and to observe any Merchant’s premises without any prior notice to any Merchant at any time after execution of this Agreement. HA may use automated telephone dialing, text messaging systems, and e-mail to provide messages to Merchant(s), Owner(s) (Owner being defined as each person who signs this Agreement on behalf of a Merchant), and Guarantor(s) about Merchant(s)’s account. Telephone messages may be played by a machine automatically when the telephone is answered, whether answered by an Owner, a Guarantor, or someone else. These messages may also be recorded by the recipient’s answering machine or voice mail. Each Merchant, each Owner, and each Guarantor gives HA permission to call or send a text message to any telephone number given to HA in connection with this Agreement and to play pre-recorded messages and/or send text messages with information about this Agreement and/or any Merchant’s account over the phone. Each Merchant, each Owner, and each Guarantor also gives HA permission to communicate such information to them by e-mail. Each Merchant, each Owner, and each Guarantor agree that HA will not be liable to any of them for any such calls or electronic communications, even if information is communicated to an unintended recipient. Each Merchant, each Owner, and each Guarantor acknowledge that when they receive such calls or electronic communications, they may incur a charge from the company that provides them with telecommunications, wireless, and/or Internet services, and that HA has no liability for any such charges. 11. Accuracy of Information Furnished by Merchant and Investigation Thereof. 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. Each Merchant and each Owner signing this Agreement represent that he or she is authorized to sign this Agreement for each Merchant, legally binding said Merchant to itsobligations under this Agreement and that the information provided herein and in all of HA documents, forms, and recorded interview(s) is true, accurate, and complete in all respects. HA may produce a monthly statement reflecting the delivery of the Specified Percentage of Receivables from Merchant(s) to HA. An investigative report may be made in connection with the Agreement. Each Merchant and each Owner signing this Agreement authorize HA, its agents and representatives, and any credit‐reporting agency engaged by HA, to (i) investigate any references given or any other statements obtained from or about each Merchant or any of I have read and agree to the terms and conditions set forth above: __________________________________________________________ MARTIN THOMAS LUMPP Name and Title: _________________________ 12/14/2021 Date: ______________ FILED: KINGS COUNTY CLERK 03/09/2022 03:05 PM INDEX NO. 506997/2022 DocuSign Envelope ID: DBEBBE3D-AEA1-413B-B90D-1FBC3B585F84 3D02F179-3267-42AA-AF57-B95CDADBD229 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/09/2022 Page 4 of 19 STANDARD MERCHANT CASH ADVANCE AGREEMENT its Owners for the purpose of this Agreement, and (ii) pull credit report at any time now or for so long as any Merchant and/or Owners(s) continue to have any obligation to HA under this Agreement or for HA ability to determine any Merchant’s eligibility to enter into any future agreement with HA. Any misrepresentation made by any Merchant or Owner in connection with this Agreement may constitute a separate claim for fraud or intentional misrepresentation. Authorization for soft pulls: Each Merchant and each Owner understands that by signing this Agreement, they are providing ‘written instructions’ to HA under the Fair Credit Reporting Act, authorizing HA to obtain information from their personal credit profile or other information from Experian, TransUnion, and Equifax. Each Merchant and each Guarantor authorizes HA to obtain such information solely to conduct a pre-qualification for credit. Authorization for hard pulls:Each Merchant and each Owner understands that by signing this Agreement, they are providing ‘written instructions’ to HA under the Fair Credit Reporting Act, authorizing HA to obtain information from their personal credit profile or other information from Experian, TransUnion, and Equifax. Each Merchant and each Guarantor authorizes HA to obtain such information in accordance with a merchant cash advance application. 12. Transactional History. Each Merchant authorizes its bank to provide HA with its banking and/or credit card processing history. 13. Indemnification. Each Merchant and each Guarantor jointly and severally indemnify and hold harmless each Merchant’s credit card and check processors (collectively, “Processor”) and Processor’s officers, directors, and shareholders against all losses, damages, claims, liabilities, and expenses (including reasonable attorney and expert fees) incurred by Processor resulting from (a) claims asserted by HA for monies owed to HA from any Merchant and actions taken by any Processor in reliance upon information or instructions provided by HA. No Liability. In no event will HA be liable for any claims asserted by any 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 each Merchant and each Guarantor. 15. Sale of Receivables. Each Merchant and HA agree that the Purchase Price under this Agreement is in exchange for the Receivables Purchased Amount and that such Purchase Price isnot intended to be, nor shall itbe construed as a loan from HA to any Merchant. HA is entering into this Agreement knowing the risks that each Merchant’s business may decline or fail, resulting in HA not receiving the Receivables Purchased Amount. Each Merchant agrees that the Purchase Price in exchange for the Receivables pursuant to this Agreement equals the fair market value of such Receivables. HA has purchased and shall own all the Receivables described in this Agreement up to the fullReceivables Purchased Amount as the Receivables are created. Payments made to HA in respect to the full amount of the Receivables shall be conditioned upon each Merchant’s sale of products and services and the payment therefor by each Merchant’s customers in the manner provided in this Agreement. Although certain jurisdictions require the disclosure of an Annual Percentage Rate or APR in connection with this Agreement, those disclosures do not change the fact that the transaction encompassed by this Agreement is not a loan and does not have an interest rate. 16. Power of Attorney. Each Merchant irrevocably appoints HA 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 HA, or, ifHA considers an Event of Default to have taken place under Section 34, to settle all obligations due to HA from each Merchant, 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 (which is defined in Section 33); (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 each Merchant’s name on any invoice, bill of lading, or assignment directing customers or account debtors to make payment directly to HA; and (v) to file any claims or take any action or institute any proceeding which HA may deem necessary for the collection of any of the unpaid Receivables Purchased Amount from the Collateral, or otherwise to enforce its rights with respect to payment of the Receivables Purchased Amount. 17. Protections Against Default. The following Protections 1 through 7 may be invoked by HA, immediately and without notice to any Merchant in the event: (a) Any Merchant takes any action to discourage the use of methods of payment ordinarily and customarily used I have read and agree to the terms and conditions set forth above: __________________________________________________________ MARTIN THOMAS LUMPP Name and Title: _________________________ 12/14/2021 Date: ______________ FILED: KINGS COUNTY CLERK 03/09/2022 03:05 PM INDEX NO. 506997/2022 DocuSign Envelope ID: DBEBBE3D-AEA1-413B-B90D-1FBC3B585F84 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/09/2022 Page 5 of 19 STANDARD MERCHANT CASH ADVANCE AGREEMENT by its customers or permits any event to occur that could have an adverse effect on the use, acceptance, or authorization of checks and credit cards forthe purchase ofany Merchant's services and products; (b) Any Merchant changes itsarrangements with any Processor in any way that isadverse to HA; (c) Any Merchant changes any Processor through which the Receivables are settled to another electronic check and/or credit card processor or permits any event to occur that could cause diversion of any Merchant's check and/or credit card transactions to another such processor (d) Any Merchant interrupts the operation of its business (other than adverse weather, natural disasters, or acts of God) or transfers, moves, sells,disposes, or otherwise conveys itsbusiness or assets without (i)the express prior written consent of HA and (ii)the written agreement of any purchaser or transferee to the assumption of allof any Merchant's obligations under thisAgreement pursuant to documentation satisfactory to HA; or (e) Any 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 any Merchant's goods or services with any means other than checks and/or credit cards that are settled through Processor. These protections are in addition to any other remedies available to HA at law, in equity, or otherwise available pursuant to this Agreement. (f)HA considers any Event of Default listedin Section 34 to have taken place. Protection 1: The fulluncollected Receivables Purchased Amount plus all fees due under this Agreement may become due and payable infullimmediately. Protection 2. HA may enforce the provisions of the Guarantee against Guarantor. Protection 3. HA may enforce itssecurity interest in the Collateral identified in Section 33. Protection 4.HA may proceed toprotect and enforce itsrights and remedies by litigationor arbitration. Protection 5. Ifrequested by HA, Merchant shall deliver to HA an executed assignment of lease of each Merchant's premises in favor of HA. Upon breach of any provision in thisSection 17, HA may exercise itsrights under such assignment of lease. Protection 6. HA may debit any Merchant's depository accounts wherever situated by means of ACH debit or electronic or facsimile signature on a computer-generated check drawn on any Merchant's bank account or otherwise, in an amount consistent with the terms of thisAgreement. Protection 7. HA will have the right,without waiving any of its rights and remedies and without notice to any Merchant and/or Guarantor, to notify each Merchant's credit card and/or check processor of the sale of Receivables hereunder and to direct such credit card processor to make payment to HA of allor any portion of the amounts received by such credit card processor on behalf of each Merchant. Each Merchant grants to HA an irrevocable power-of- hereby attorney, which power-of-attorney will be coupled with an interest, and hereby appoints HA and its representatives as each Merchant's attorney-in-fact to take any and all action necessary to direct such new or additional credit card and/or check processor to make payment to HA as contemplated by this Section. 18. Protection of Information. Each Merchant and each person signing this Agreement on behalf of each Merchant and/or as Owner, in respect of himself or herself personally, authorizes HA to disclose information concerning each Merchant, Owner and/or Guarantor's credit standing and business conduct to agents, affiliates, subsidiaries, and credit reporting bureaus. Each Merchant, Guarantor, and Owner hereby waives to the maximum extent permitted by law any claim for damages against HA or any of its affiliatesrelating to any (i) investigation undertaken by or on behalf of HA as permitted by this Agreement or disclosure (ii) of information as permitted by this Agreement. 19. Confidentiality. Each Merchant understands and agrees that the terms and conditions of the products and services offered by HA, including this Agreement and any other HA documents (collectively, "Confidential Information") are proprietary and confidential information of HA. Accordingly, unless disclosure is required by law or court order, Merchant(s) shall not disclose Confidential Information of HA to any person other than an attorney, accountant, financial advisor, or employee of any Merchant who needs to know such information for the purpose of advising any Merchant ("Advisor"), provided such Advisor uses such information solely for the purpose of advising any Merchant and firstagrees inwriting to be bound by the terms of thisSection 19. as" 20. D/B/As. Each Merchant hereby acknowledges and agrees that HA may be using "doing business or "d/b/a" names in connection with various matters relating to the transaction between HA and each Merchant, including the filingof UCC-1 financing statements and other notices or filings. I have read and agree to the terms and conditions set forth above: 12/14/2021 Name and Title: Date: FILED: KINGS COUNTY CLERK 03/09/2022 03:05 PM INDEX NO. 506997/2022 DocuSign Envelope ID: DBEBBE3D-AEA1-413B-B90D-1FBC3B585F84 3D02F179-3267-42AA-AF57-B95CDADBD229 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/09/2022 Page 6 of 19 STANDARD MERCHANT CASH ADVANCE AGREEMENT 21. Financial Condition and Financial Information. Each Merchant represents, warrants, and covenants that its bank and financial statements, copies of which have been furnished to HA, and future statements which will be furnished hereafter at the request of HA, fairly represent the financial condition of each Merchant at such dates, and that since those dates there have been no material adverse changes, financial or otherwise, in such condition, operation, or ownership of any Merchant. Each Merchant has a continuing affirmative obligation to advise HA of any material adverse change in its financial condition, operation, or ownership. 22. Governmental Approvals. Each Merchant represents, warrants, and covenants that it is in compliance and shall comply with all laws and has valid permits, authorizations, and licenses to own, operate, and lease its properties and to conduct the business in which it is presently engaged. 23. Authorization. Each Merchant represents, warrants, and covenants that itand each person signing this Agreement on behalf of each Merchant has full power and authority to incur and perform the obligations under this Agreement, all of which have been duly authorized. 24. Insurance. Each Merchant represents, warrants, and covenants that it willmaintain business‐interruption insurance naming HA as loss payee and additional insured in amounts and against risks as are satisfactory to HA and shall provide HA proof of such insurance upon request. 25. Electronic Check Processing Agreement. Each Merchant represents, warrants, and covenants that itwill not, without HA prior written consent, change its Processor, add terminals, change itsfinancial institution or bank account, or take any other action that could have any adverse effect upon any Merchant’s obligations under this Agreement. 26. Change of Name or Location. Each Merchant represents, warrants, and covenants that it will not conduct its business under any name other than as disclosed to HA or change any place(s) of its business without prior written consent from HA. 27. Estoppel Certificate. Each Merchant represents, warrants, and covenants that it will, at any time, and from time to time, upon at least two day’s prior notice from HA to that Merchant, execute, acknowledge, and deliver to HA and/ or to any other person or entity specified by HA, a statement certifying that this Agreement is unmodified and in full force and effect (or, ifthere have been modifications, that the same is in fullforce and effect as modified and stating the modifications) and stating the dates which the Receivables Purchased Amount or any portion thereof have been paid. 28. No Bankruptcy. Each Merchant represents, warrants, and covenants that as of the date of this Agreement, it does not contemplate and has not filed any petition for bankruptcy protection under Title 11 of the United States Code and there has been no involuntary petition brought or pending against any Merchant. Each Merchant further warrants that it does not anticipate filing any such bankruptcy petition and it does not anticipate that an involuntary petition will be filed against it. Each Merchant further warrants that there will be no statutory presumption that it would have been insolvent on the date of this Agreement. 29. Unencumbered Receivables. Each Merchant represents, warrants, and covenants that it has good, complete, and marketable titleto all Receivables, 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 this Agreement or adverse to the interests of HA, other than any for which HA has actual or constructive knowledge as of the date of this Agreement. 30. Stacking. Each Merchant represents, warrants, and covenants that it will not enter into with any party other than HA any arrangement, agreement, or commitment that relates to or involves the Receivables, whether in the form of a purchase of, a loan against, collateral against, or the sale or purchase of credits against Receivables without the prior written consent of HA. I have read and agree to the terms and conditions set forth above: __________________________________________________________ MARTIN THOMAS LUMPP Name and Title: _________________________ 12/14/2021 Date: ______________ FILED: KINGS COUNTY CLERK 03/09/2022 03:05 PM INDEX NO. 506997/2022 DocuSign Envelope ID: DBEBBE3D-AEA1-413B-B90D-1FBC3B585F84 3D02F179-3267-42AA-AF57-B95CDADBD229 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/09/2022 Page 7 of 19 STANDARD MERCHANT CASH ADVANCE AGREEMENT 31. Business Purpose. Each Merchant represents, warrants, and covenants that it is a valid business in good standing under the laws of the jurisdictions in which it is organized and/or operates, and each Merchant is entering into this Agreement for business purposes and not as a consumer for personal, family, or household purposes. 32. Default Under Other Contracts. Each Merchant represents, warrants, and covenants that its execution of and/or performance under this Agreement will not cause or create an event of default by any Merchant under any contract with another person or entity. 33. Security Interest. To secure each Merchant’s payment and performance obligations to HA under this Agreement and any future agreement with HA, each Merchant hereby grants to HA a security interest in collateral (the “Collateral”), that is defined as collectively: (a) all accounts, including without limitation, all deposit accounts, ‐ accounts receivable, and other receivables, chattel paper, documents, equipment, general intangibles, instruments, and inventory, as those terms are defined by Article 9 of the Uniform Commercial Code (the “UCC”), now or hereafter owned or acquired by any Merchant; and (b) allproceeds, as that term is defined by Article 9 of the UCC. The parties acknowledge and agree that any security interest granted to HA under any other agreement between any Merchant or Guarantor and HA (the “Cross‐Collateral”) willsecure the obligations hereunder and under this Agreement. Negative Pledge: Each Merchant agrees not to create, incur, assume, or permit to exist, directly or indirectly, any lien on or with respect to any of the Collateral or the Cross‐Collateral, as applicable. Each Merchant agrees to execute any documents or take any action in connection with this Agreement as HA deems necessary to perfect or maintain HA firstpriority security interest in the Collateral and the Cross‐Collateral, including the execution of any account control agreements. Each Merchant hereby authorizes HA to file any financing statements deemed necessary by HA to perfect or maintain HA security interest, which financing statements may contain notification that each Merchant has granted a negative pledge to HA with respect to the Collateral and the Cross‐Collateral, and that any subsequent lienor may be tortiously interfering with HA rights. Each Merchant shall be liable for and HA may charge and collect all costs and expenses, including but not limited to attorney fees, which may be incurred by HA in protecting, preserving, and enforcing HA security interest and rights. Each Merchant further acknowledges that HA may use another legal name and/or D/B/A or an agent when designating the Secured Party when HA files the above‐referenced financing statement(s). 34. Events of Default. An “Event of Default” may be considered to have taken place if any of the following occur: Any Merchant violates any term or covenant in this Agreement; Any representation or warranty by any Merchant in any Agreement with HA that has not been terminated proves to have been incorrect, false, or misleading in any material respect when made; (3) Any Merchant fails to provide HA with written notice of any material change in its financial condition, operation, or ownership within seven days thereafter (unless a different notice period is specifically provided for elsewhere in this Agreement; (4) the sending of notice of termination by any Merchant or Guarantor; (5) Any Merchant transports, moves, interrupts, suspends, dissolves, or terminates its business without the prior written consent of HA other than a bankruptcy filing; Any Merchant transfers or sells all or substantially all of its assets without the prior written consent of HA; Any Merchant makes or sends notice of any intended bulk sale or transfer by any Merchant without the prior written consent of HA; Any Merchant uses multiple depository accounts without the prior written consent of HA; Any Merchant changes the Account without the prior written consent of HA; HA is not provided with updated login or password information for the Account within one business day after any such change is made by any Merchant; (11) Any Merchant fails to send bank statements, merchant account statements, or bank login information for the Account within two business days after a written request for same is made by HA; (12) Any Merchant performs any act that reduces the value of any Collateral granted under this Agreement; (13) Any Merchant fails to deposit its Receivables into the Account; I have read and agree to the terms and conditions set forth above: __________________________________________________________ MARTIN THOMAS LUMPP Name and Title: _________________________ 12/14/2021