TERMS & CONDITIONS
As used in this Agreement, the term “Lender” also shall include Lender’s agents, servicers and any assignee of this Agreement or of any Loan Transaction Agreement described below. “Responsible Party” means any individual who submitted an application on behalf of Borrower to Lender and/or who is agreeing on Borrower’s behalf to this Agreement. “Portal” means the online functionality whereby Borrower may request loans from Lender pursuant to the Loan Program Agreement.
1. Loan Facility
Based upon information provided by Borrower in its application, and underwriting performed as of the date of the submission of the application, Lender agrees to establish a Loan Facility in favor of Borrower in the amount set forth the “Credit Limit” shown in the Portal (the “Loan Facility”). From time to time before the Maturity Date identified in the Portal, Lender shall make one or more advances under the Loan Facility to pay for purchase orders (each a “Purchase Order”) submitted by Borrower to a Designated Vendor (as defined below) on or before the date identified in the Portal. Each vendor payment made under this Loan Facility shall be made as a loan (“Draw-Down Loan”) memorialized in a separately-signed writing (“Loan Transaction Agreement”) executed by Borrower through the Portal. The terms of this Agreement shall apply to each Draw-Down Loan. Under this Loan Facility, Lender will, on behalf of Borrower, pay the vendor designated as the recipient of loan proceeds in the Loan Transaction Agreement (each a “Designated Vendor”) the total amount of the purchase order. The amount available under the Loan Facility shall be reduced by the amount extended under each Draw-Down Loan outstanding until such Draw-Down Loan has been repaid in full. Lender may increase or reduce the amount available under the Loan Facility at any time for any reason in its sole discretion without prior notice to Borrower.
2. Loan Facility Fees and Terms
The fees and terms for each Draw-Down Loan made under this Loan Facility will be set forth in the Loan Transaction Agreement.
3. Due Diligence and Underwriting
Borrower authorizes Lender to conduct background, onsite and ﬁnancial examinations of Borrower and its owners and principals, which may include, but are not limited to, address veriﬁcations for up to ten (10) years; querying a commercial credit history and score from any credit bureau; searches of any and all relevant publicly available information hosted on the world wide web; and a search for bankruptcies, liens or judgments in all jurisdictions where Borrower has conducted business, as continued underwriting of Borrower (collectively “Due Diligence”). Borrower also authorizes Lender to conduct Due Diligence on a monthly basis, whenever Borrower updates details on the Lender website.
Responsible Party authorizes Lender to (1) obtain personal credit reports and other consumer reports about Responsible Party in connection with this Agreement and throughout the term of any Draw-Down Loan or other transaction associated with this Agreement, and (2) complete continued Due Diligence of the loan as set forth in this paragraph.
Borrower will maintain a sole bank account (“Bank Account”) into which all proceeds of accounts receivable and/or sales paid to Borrower (“Future Receivables”) will be deposited. Borrower represents and warrants that (i) the account name, account number, and bank name and address provided by Borrower in the application to identify the Bank Account is accurate, and (ii) that proceeds of Future Receivables will not be deposited into any other account. The Bank Account shall not be a consumer account.
5. Borrower’s Covenants, Representations, and Warranties
Borrower represents, warrants, and covenants the following as of this date and during the term of this Agreement:
a. Borrower is not contemplating closing its business.
b. Neither Borrower nor any Responsible party has, in the last three years, commenced any case or proceeding seeking protection under any bankruptcy or insolvency law, or had any such case or proceeding commenced against it, and it is not contemplating commencing any such case or proceeding.
c. Borrower’s Future Receivables are free and clear of all claims, liens or encumbrances of any kind whatsoever.
d. Borrower does not intend to temporarily close its business for renovations or other reasons during the next twelve months.
e. Borrower shall not sell, dispose, convey or otherwise transfer its business or assets without the express prior written consent of Lender; Borrower shall not enter into an agreement for the purchase and sale of any Future Receivables, or for any other type of financing with any entity other than Lender without Lender’s prior written consent.
f. Borrower shall furnish Lender with the bank statements for the Bank Account and any and all other accounts to which proceeds from Borrower’s sales are deposited within seven days of any such request by Lender.
g. Borrower shall not take any measure to interfere with Lender’s ability to collect through debits to the Bank Account as outlined in the Debit Schedule the cash that Borrower receives.
h. Borrower shall not close or change the Bank Account, or close or change any other bank account into which Future Receivables are deposited, without Lender’s prior written consent.
i. Borrower shall not conduct its businesses under any name other than as disclosed to Lender or change any of its places of business without Lender’s prior written consent.
j. Borrower represents that the information it furnished Lender in the application and this Agreement, including without limitation Borrower’s processing statements, is true and accurate in all respects and fairly represents the ﬁnancial condition, result of operations, and cash ﬂows of Borrower when the information was furnished, and, since then, there has been no material adverse change in the business or its prospects or in the ﬁnancial conditions, results of operations, or cash ﬂows of Borrower.
k. Borrower is a valid business entity domiciled in the United States or a territory thereof in good standing under the laws of the jurisdiction of its formation.
l. Borrower maintains all required licenses required for the operation of Borrower’s business and has done so for at least two (2) years.
m. Any Bank Account provided by Borrower is a business purpose account and not a consumer account.
6. Commercial Transaction
Borrower and Responsible Party each understand, acknowledge and agree that Borrower and Responsible Party (i) are entering into this Agreement as a commercial purpose transaction, (ii) will not use any portion of any credit extended for personal, family or household purposes, and (iii) will not repay Lender from any consumer account. This means that certain important duties imposed upon transactions and communications for consumer purposes, and certain important rights conferred upon consumers, pursuant to federal or state law will not apply to any aspect of this Agreement or transactions under it. Borrower and Responsible Party also understand, acknowledge and agree that Lender may be unable to confirm whether, for example, any particular use of any amount loaned or any particular payment conforms to this section. Borrower and Responsible Party understand, acknowledge and agree that a breach by Borrower of the provisions of this section will not affect Lender’s right to (i) enforce this Agreement, regardless of the purpose for which any amount loaned is in fact used, or (ii) use any remedy legally available to Lender in a commercial transaction, even if that remedy would not have been available had any amount loaned been disbursed for consumer purposes or payment delivered from a consumer account.
7. Government Approvals
Borrower is in compliance with any and all applicable federal, state and local laws and regulations, as well as all rules and regulations of card associations and payment networks. Borrower possesses and is in compliance with all permits, licenses, approvals, consents, registrations and other authorizations necessary to own, operate and lease its properties and to conduct the business in which it is presently engaged.
A “Default” shall include, but is not limited to, any of the following events: (a) the breach by Borrower of any covenants contained in this Agreement; and (b) any representation or warranty made by the Borrower in this Agreement, proving to have been incorrect, false, or misleading in any material respect.
Borrower hereby explicitly agrees that the communications in relation to an event constituting default may be made by the Lender or Lender’s designee via electronic mail or phone, including cellular phone.
Borrower hereby authorizes Behalf to notify any and all Designated Vendors of Borrower’s default of this Agreement.
Lender shall be entitled to all remedies available under law and equity, including any right to non-judicial foreclosure or repossession, and to receive all Indemniﬁed Amounts (as deﬁned in and in accordance with Section 10 hereof) from Borrower. In the event that Borrower breaches any of the Borrower’s Covenants speciﬁed in this Agreement, Borrower agrees that Lender may immediately, without notice to Borrower, accelerate all amounts due under this Agreement and any outstanding Draw-Down Loans. Lender also may deem any outstanding Draw-Down Loan to be in default and exercise any default remedy it may have under any Loan Transaction Agreement. Borrower hereby agrees that Lender may automatically debit or otherwise withdraw from Borrower’s accounts (including the Bank Account) any and all amounts owed due to acceleration or its exercise of any other default remedy.
Borrower shall assume liability for and hereby agrees to indemnify, protect, and hold harmless Lender and its and their officers, directors, employees, agents, representatives and assignees (collectively, the “Indemniﬁed Parties”), from and against any and all liabilities, claims, losses, obligations, damages, penalties, suits, actions, controversies, or proceedings of any kind, imposed upon, incurred by, or asserted against any of the Indemniﬁed Parties, in any way arising from (i) actions taken in reliance upon information or instructions provided to the Lender by or on behalf of Borrower, (ii) the occurrence or termination of this Agreement, or (iii) in connection with, relating to, or incident to such Breach (collectively, “Indemniﬁed Amounts”). This includes all costs and expenses of every kind for the enforcement of Lender’s rights and remedies hereunder, including reasonable attorneys’ fees, costs of any trial, appellate court proceeding, administrative proceeding, or any negotiations or consultations with respect to any such Breach. Such Indemniﬁed Amounts will bear interest at the highest rate of interest permitted by applicable law until paid.
Borrower shall maintain insurance in such amounts and against such risks as are consistent with past practice and industry practice and shall show proof of such insurance upon the request of Lender.
All notices, requests, demands and other communications hereunder shall be in writing and shall be delivered by mail, overnight delivery or hand delivery to the respective Parties. Notices to Lender shall be sent to the following address:
Behalf Loans by FinWise
PO Box 1804, New York, NY 10159
13. Binding Effect; Assignment
This Agreement shall be binding upon and inure to the beneﬁt of Borrower and Lender and their respective successors and assigns, except that Borrower shall not have the right to assign or delegate any of their rights or obligations hereunder or any interest herein without the prior written consent of Lender, which consent may be withheld in Lender’s sole discretion. Lender reserves the right to assign or delegate this Agreement or any of its rights or obligations hereunder with or without prior notice to Borrower.
14. Entire Agreement
This Agreement, any Loan Transaction Agreement executed under this Agreement, and the Portal contain the entire agreement and understanding between Borrower and Lender and supersede all prior agreements and understandings, whether oral or in writing, relating to the subject matter hereof unless otherwise speciﬁcally reaffirmed or restated herein. Borrower and Lender each acknowledge and agree that he, she or it is not relying on any representations not speciﬁcally embodied in this Agreement.
15. Governing Law and Jurisdiction
THIS AGREEMENT AND ALL TRANSACTIONS IT CONTEMPLATES, INCLUDING ALL ISSUES CONCERNING THE VALIDITY OF THE AGREEMENT AND ANY TRANSACTIONS IT CONTEMPLATES, THE CONSTRUCTION OF ITS TERMS, AND THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF LENDER, BORROWER, AND RESPONSIBLE PARTY (EACH, A “PARTY” AND COLLECTIVELY, THE “PARTIES”), SHALL BE GOVERNED BY AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF UTAH, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS THAT WOULD REQUIRE THE APPLICATION OF ANY OTHER LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE PARTIES AGREE THE LAWS OF THE STATE OF UTAH SHALL GOVERN THE ENTIRE RELATIONSHIP BETWEEN AND AMONG THE PARTIES, INCLUDING WITHOUT LIMITATION, ALL ISSUES OR CLAIMS ARISING OUT OF, RELATING TO, IN CONNECTION WITH, OR INCIDENT TO THIS AGREEMENT AND ANY TRANSACTIONS IT CONTEMPLATES, WHETHER SUCH CLAIMS ARE BASED IN TORT, CONTRACT, OR ARISE UNDER STATUTE OR IN EQUITY. AS USED HEREIN, THE PHRASE “LAWS OF THE STATE OF UTAH “INCLUDES UTAH LAW WITH RESPECT TO, AMONG OTHER THINGS, ANY APPLICABLE STATUTE OF LIMITATIONS, LACHES, OR SIMILAR TIME-BASED DEFENSE. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT IS MADE AND PERFORMED IN THE STATE OF UTAH. LENDER AND BORROWER AGREE THAT ANY AND ALL DISPUTES BETWEEN THEM REGARDING OR RELATING TO THIS AGREEMENT IN ANY WAY SHALL BE EXCLUSIVELY VENUED IN THE STATE OR FEDERAL COURTS OF THE STATE OF UTAH AND, BY ENTERING INTO THIS AGREEMENT, EACH OF BORROWER AND LENDER CONSENT TO JURISDICTION THEREIN.
16. Limitation of Liability
In no event will Lender, its servicers, or its or its servicer’s oﬃcers, directors, employees, agents, representatives and assignees be liable for any claims asserted by Borrower under any theory of law or statute, including any tort or contract theory for lost proﬁts, lost revenues, lost business opportunities, exemplary, punitive, special, incidental, indirect or consequential damages, each of which is hereby expressly waived to the fullest extent permitted by law by Borrower.
17. Waiver of Jury Trial
THE PARTIES HERETO WAIVE TRIAL BY JURY IN ANY COURT IN ANY SUIT, ACTION, CONTROVERSY OR PROCEEDING OF ANY KIND ON ANY MATTER ARISING OUT OF, RELATING TO, IN CONNECTION WITH, OR INCIDENT TO THIS AGREEMENT OR ANY TRANSACTIONS IT CONTEMPLATES OR THE ENFORCEMENT HEREOF, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY. THE PARTIES HERETO ACKNOWLEDGE THAT EACH MAKES THIS WAIVER KNOWINGLY, WILLINGLY AND VOLUNTARILY AND WITHOUT DURESS, AND ONLY AFTER EXTENSIVE CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER WITH THEIR ATTORNEYS.
18. Class Action Waiver
The Parties acknowledge and agree that the amounts at issue in this transaction and any disputes that may arise between them are large enough to justify dispute resolution on an individual basis. EACH PARTY HERETO WAIVES ANY RIGHT TO ASSERT ANY CLAIMS AGAINST ANY OTHER PARTY AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW.
19. Collection and Attorneys’ Fees
Lender shall be entitled to receive from Borrower and Borrower shall pay all reasonable costs associated with a breach of this Agreement and the enforcement thereof, including collection charges, court costs and reasonable attorneys’ fees as authorized under applicable law.
Lender also may terminate this Agreement immediately upon notice to Borrower at any time. If this Agreement terminates while one or more Loan Transaction Agreements remain outstanding, then the terms of this Agreement will continue to apply to any such Draw-Down Loans while they are outstanding, but Borrower will not be able to enter into any new Draw-Down Loans or Loan Transaction Agreements after termination of this Agreement.
21. Account Summary
Borrower has a duty to review any summary, transaction history, statements, or other similar material provided in the Portal or elsewhere (each an “Account Summary”). If Borrower thinks an Account Summary is inaccurate or contains an error, or if Borrower needs more information about any item reflected in an Account Summary, Borrower must notify Lender in writing as soon as possible at: FinWise Bank c/o Behalf—Account Inquiries, PO Box 1804, New York, NY 10159. Lender must receive such notice from Borrower no later than 60 calendar days after the information in the Account Summary at issue is posted or sent. Borrower remains obligated to make any required payments while Lender investigates a suspected error.
22. Changes in Terms
Lender may change the terms of this Agreement at any time, including by changing or removing any of the terms and conditions of, or adding new terms or conditions to, this Agreement. Borrower accepts any such changes unless, within 30 days notice of such changes, Borrower provides Lender with written notice that Borrower rejects such changes, in which case this Agreement will terminate.
23. Guaranty by Responsible Party
By assenting to this Agreement, Responsible Party also agrees in his or her individual capacity personally to guarantee Borrower’s performance regarding all aspects of this Agreement, any Loan Transaction Agreement, and any Draw-Down Loan relating to or arising from this Agreement, including without limitation Borrower’s obligation to repay any and all amounts due under this Agreement, any Loan Transaction Agreement, or any Draw-Down Loan. Responsible Party waives any right to any notice of default by Borrower and any other condition to guaranteeing Borrower’s performance.
Borrower and Responsible Party have full power and authority to enter into and perform the obligations under this Agreement, all of which have been duly authorized by all necessary and proper actions.