“Portal” means the online functionality whereby Borrower may request loans from Lender pursuant to the Loan Program Agreement. “Recipient” means the vendor that Borrower has directed Lender to pay in the Portal. The “Loan Amount” means the dollar amount that Borrower has directed Lender to pay to Recipient using the Portal. “Loan” means the loan made by Lender to Borrower pursuant to this Agreement. “Payment Period” means the period for repayment for the Loan, either weekly or monthly, as indicated in the Portal. “Term” means the term of this Loan, which is measured based on the total number of Payment Periods reflected in the Portal plus any additional Payment Periods necessary to repay all amounts owed pursuant to this Loan.
I. BUSINESS LOAN
Section 1.1. Business Loan. Borrower agrees to borrow, and Lender agrees to lend to Borrower, the Loan Amount. Borrower promises to repay the Loan Amount, plus Costs (as defined below), plus all other amounts that may become due to Lender under this Agreement, according to the required Periodic Payments set forth below and described in the Portal. Borrower will provide us, at all times during this Agreement, with sufficient access to view the activity in (a) Borrower’s commercial transaction account(s), including, but not limited to, one or more designated business deposit accounts, the details of which Borrower has provided to Lender (individually and collectively, as appropriate, Borrower’s “Bank Account”), (b) the marketplace(s) where Borrower does business, and (c) such other accounts and sales and shipping data as Lender deems necessary and appropriate, for the purpose of monitoring Borrower’s business activity and finances. Any disputes or concerns Borrower has regarding Borrower’s purchases from or the amounts Borrower owes to the Recipient are to be solely resolved between Borrower and the Recipient alone, and Borrower understands and agrees that (a) the Recipient’s actions or omissions have no bearing on, and will not give rise to any defense under, Borrower’s agreement with us, and (b) Lender will have no liability to Borrower in connection with such purchases.
THIS IS A COMMERCIAL LOAN. BORROWER AND RESPONSIBLE PARTY EACH UNDERSTAND, ACKNOWLEDGE AND AGREE NOT TO USE ANY PORTION OF THE AMOUNT LOANED FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES AND NOT TO 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 transaction. 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.
Costs. Lender will impose an interest charge (“Costs”) for each full or partial Payment Period that any amount owed in connection with Borrower’s Loan remains outstanding. The Costs for such a period will be the original Loan Amount multiplied by the Fee Percentage displayed in the Portal. Lender may impose additional Costs, at this same percentage, for late payments, schedule modifications, amounts due after maturity, and Borrower-initiated Loan modifications. Borrower may repay Borrower’s outstanding balance in full at any time without penalty.
Required Periodic Payments. At the end of each subsequent Payment Period during the Term (each a “Payment Due Date”), Borrower must pay Lender an amount (each a “Periodic Payment”) equal to (i) the Loan Amount divided by the total number of Payment Periods reflected in the Portal for the Loan, plus (ii) the Costs for the Payment Period, and (iii) any amount owed from prior Periodic Payments that remains unpaid. Borrower must continue to make such Periodic Payments until all amounts owed under this Loan have been repaid. A Periodic Payment will not exceed the remaining amount owed under this Agreement. Lender will notify Borrower in advance of each Payment Due Date, of the amount to be drawn from Borrower’s account.
Late Fee. If Borrower fails to pay any Periodic Payment or other amount due on time, then Borrower agrees that Lender may assess a Late Fee of $35.
Application of Payments. Payments received may be applied, in Lender’s sole discretion, to any loan outstanding with Lender, and to any portion of the Loan or other such loans, in any manner. Any payment in excess of a Periodic Payment due does not relieve Borrower of the obligation to make future Periodic Payments until all amounts owed under the Loan are repaid in full.
Section 1.2. Borrower’s Contractual Covenants and Representations; Further Inquiries. Covenants. Borrower agrees:
|(i)||Not to use any amount loaned for personal, family or household purposes and not to repay Lender from any consumer account;|
|(ii)||Not to materially change the nature of the business that Borrower conducts from the type of business originally disclosed to Lender in connection with this Agreement and, unless Lender is adequately notified in advance, to conduct Borrower’s business substantially in accordance with past practices;|
|(iii)||To take all steps necessary to provide Lender with access to view the activity in the Bank Account, and marketplaces where Borrower does business, and to such other accounts and sales and shipping data as Lender deems necessary and appropriate, for the purpose of monitoring Borrower’s business activity and finances;|
|(iv)||With regard to information about any marketplace or other service provider that Borrower provided to Lender to determine the amount of Borrower’s Loan, to notify Lender promptly if the details of Borrower’s account with such marketplace or other service provider changes, Borrower opens a new account or closes an account;|
|(v)||To collect on Borrower’s sales promptly, in compliance with all applicable federal, state and local laws, rules and regulations and consistent with Borrower’s past collection practices;|
|(vi)||Not to open a new account other than the Bank Account into which Borrower’s sales or accounts receivable proceeds will be deposited and not to take any action to cause future sales to be settled or paid to any other account;|
|(vii)||Not to sell, dispose, convey or otherwise hypothecate Borrower’s business or assets without Lender’s express prior written consent and the prior payment or assumption of all of Borrower’s obligations under this Agreement pursuant to documentation reasonably satisfactory to us;|
|(viii)||Not to take any intentional action that would substantially impair or reduce Borrower’s generation or collection of accounts receivable adequate to satisfy Borrower’s obligations under this Agreement; and|
|(ix)||Not to terminate Borrower’s authorization of scheduled debits in Section 1.3, stop payment on any debit authorized pursuant to Section 1.3, claim that a debit transaction pursuant to Section 1.3 is unauthorized, or seek a refund, return, chargeback or dispute of a credit card transaction related to a payment under Section 1.3|
Collectively, the preceding items (i) through (ix) are Borrower’s “Borrower Contractual Covenants.”
Representations. Borrower represents that as of the date of this Agreement (i) Borrower has no present intention to close or cease operating Borrower’s business, in whole or in part, temporarily or permanently, (ii) Borrower is solvent and not contemplating any insolvency or bankruptcy proceeding, (iii) during the four (4) months preceding the date hereof, neither Borrower nor any Responsible Party has discussed with or among Borrower’s management, counsel, or any other advisor or creditor, any potential insolvency, bankruptcy, receivership, or assignment for the benefit of creditors with respect to Borrower and no such action or proceeding has been filed or is pending, (iv) neither the Borrower nor any Responsible Party has filed proceedings or sought relief under U.S. Federal bankruptcy code in the last 3 years, and (v) no eviction or foreclosure is pending or threatened against Borrower.
Further Inquiries. Borrower and Responsible Party authorize Bank, its agents and representatives, and any credit reporting agency engaged by us, to request information about and investigate Borrower and Responsible Party and any references given or any other statements or data obtained from or about Borrower or Responsible Party for the purpose of this Agreement. Responsible Party also authorizes us to obtain personal credit reports and other consumer reports about Responsible Party at any time during this Agreement or while Borrower and/or Responsible Party continue to have any obligation owed to Lender.
Section 1.3. Payments. The Bank Account. Borrower acknowledges and agrees that it shall not have access to the Bank Account and that all proceeds made or transferred to the Bank Account shall be applied to amounts owed by Borrower to Lender. Borrower will keep the Bank Account free and clear of any security interests, liens or other encumbrances.
Automatic Payment Authorization. Borrower authorizes Lender to initiate, on each Payment Due Date, an automatic electronic debit from the Bank Account and/or any other account designated by Borrower or Responsible Party in the amount of the Periodic Payment; provided, however, that if a Payment Due Date falls on a Saturday, Sunday or holiday, then the debit may be initiated on the next business day. Any separate payments that Borrower makes on or before a Payment Due Date will not affect this authorization.
Payment Failure. If a debit is rejected or if Borrower otherwise fails to pay a Periodic Payment when due, Borrower agrees that Lender may (i) terminate further automatic debits, in which case Borrower will be responsible for making all further payments directly and in a timely manner, (ii) debit Borrower’s Bank Account and/or any other account designated by Borrower or Responsible Party, at any time and from time to time, for any amounts due to Lender until paid in full, (iii) subject to any right to notice of default and right to cure required by state law (which Borrower agrees to waive to the greatest extent possible), declare all outstanding loans made under the Loan Program Agreement immediately due and payable and (iv) pursue any and all other remedies available to us. Lender will not be liable for any fees or Costs that Borrower may incur if Lender is unable to debit a Periodic Payment under this authorization. Lender also is not responsible for any fees imposed on Borrower by any account-holding institution.
Account Maintenance. Borrower agrees to maintain in the Bank Account sufficient funds to meet each Periodic Payment obligation. Lender may initiate a debit at any time on a Payment Due Date, including prior to the time that Lender opens for business on any business day. Consequently, Borrower understands that funds must be available by the end of the business day prior to the applicable Payment Due Date and maintained in Borrower’s Bank Account until the debit is processed. Borrower further agrees to notify Lender promptly if the details of Borrower’s Bank Account changes, Borrower opens any new account that is similar or closes the Bank Account or any similar account.
Terminating or Disputing Authorization; Stopping Payment. Borrower may terminate Borrower’s automatic electronic debit authorization by notifying Lender in writing at least (3) three or more business days before a scheduled Payment Due Date, and Borrower’s termination will be effective (3) three business days after the date Borrower’s notice is received by us. If Borrower calls Lender, Lender may ask Borrower to send Borrower’s request in writing to Lender within 14 calendar days of Borrower’s call. Lender may modify or terminate automatic debiting for any reason by notifying Borrower in writing at Borrower’s last known address in Lender’s records. Following the date of any termination of automatic debits by Borrower or by us, Borrower will be responsible for making all further payments directly and in a timely manner.
Other Payments. Borrower may make additional or alternative payments at any time. Payments by postal mail should be sent, postage paid, to the following address: Behalf Loans by FinWise, PO Box 1804, New York, NY 10159. Borrower may also call 877-943-9962 to arrange payments by overnight delivery, telephone or other acceptable method. Payments made to any other address than as specified by Lender may result in a delay in processing and/or crediting for which Lender will not be responsible. All payments must be made in good funds by check, money order, automatic payment from an account at an U.S. institution offering such service, or other instrument, in U.S. dollars. Borrower is solely responsible for any costs associated with a payment. Payments received after 5:00 p.m. (ET) on any day will be credited on the next day. Credit to Borrower’s account may be delayed if a payment (a) is not received at the above address, (b) is not made in U.S. dollars drawn on an U.S. financial institution located in the U.S., (c) contains more than one payment, or (d) includes staples, paper clips, tape, a folded check, or correspondence of any type.
Remotely Created Checks. If for any reason Lender is unable to initiate an electronic debit, Borrower agrees that Lender may prepare and deposit a remotely created check in the same amount.
Credit Card Transactions. If Borrower chooses to provide a credit card number as back-up funding for Borrower’s transactions, Borrower agrees to waive any right of chargeback or dispute as to any commercial transaction involving us. There can be no grounds for any refund or return. All payments to Lender are final. Borrower agrees that Lender may apply any credit balance to any outstanding loan made under the Loan Program Agreement or other obligation Borrower has with Lender.
Acceptance of Late and Partial Payments; Disputed Amounts. Lender may accept late or partial payments without losing any of Lender’s rights under this Agreement. Borrower agrees not to send Lender partial payments marked “paid in full,” “without recourse” or similar language. If Borrower sends such a payment, Lender may accept it without losing any of its rights under this Agreement. All written communications concerning disputed amounts, including any check or other instrument that indicates that the payment constitutes “payment in full” of Borrower’s payment or fee obligations or that is tendered with other conditions or limitations or as full satisfaction of a disputed amount, must be mailed or delivered to: FinWise Bank c/o Behalf—Dispute Resolution Center, PO Box 1804, New York, NY 10159.
Section 1.4. Returned Payment Fee. If a payment is rejected, returned or dishonored, for any reason, Lender may assess a Returned Payment Fee in the amount of $20, which fee will be in addition to any Late Fee that may be due.
Section 1.5. Default. Borrower will be in default if any of the following happen: (i) Borrower fails to make any payment under this Agreement when due; (ii) Borrower breaks any promise made to Lender, or Borrower fails to comply with or to perform any term, obligation, covenant, or condition under this Agreement; (iii) Borrower is in default under any loan, security agreement, or any other agreement, in favor of any other party to whom Borrower owes debt; (iv) any representation or statement made or furnished to Lender by Borrower or on Borrower’s behalf is false or misleading either now or at the time made or furnished; (v) a material change occurs in Borrower’s ownership or organizational structure (acknowledging that any change in ownership will be deemed material when ownership is closely held); (vi) Borrower liquidates or dissolves, or enters into any consolidation merger, partnership, joint venture or other combination without Lender’s prior written consent; (vii) Borrower sells any assets except in the ordinary course of Borrower’s business as now conducted, or sells, leases, assigns or transfers any substantial part of Borrower’s business or fixed assets or any property or other assets necessary for the continuance of Borrower’s business as now conducted, including, without limitation, the selling of any property or other assets accompanied by the leasing back of the same; (viii) any guaranty of performance given to Lender ceases to be in full force and effect or is declared to be null and void, or the validity or enforceability thereof is contested in a judicial proceeding, or Responsible Party denies that Responsible Party has any further liability under such guaranty, or Responsible Party defaults in any provision of any guaranty, or any financial information provided by Responsible Party is false or misleading; (ix) if Borrower is a sole proprietorship, the Responsible Party dies; if Borrower is a trust, a trustor dies; if Borrower is a partnership, any general or managing partner dies; if Borrower is a corporation, any principal officer or 10.00% or greater shareholder dies; if Borrower is a limited liability company, any managing member dies; if Borrower is any other form of business entity, any person(s) directly or indirectly controlling ten percent (10.00%) or more of the ownership interests of such entity dies; (x) any creditor tries to take any of Borrower’s property on or in which Lender has a lien or security interest; (xi) a judgment is entered against Borrower or Responsible Party in the aggregate amount of $250 or more that is not satisfied within thirty (30) calendar days or stayed pending appeal; (xiii) an involuntary lien is attached to any of Borrower’s or Responsible Party’s assets or property and not satisfied within thirty (30) calendar days or stayed pending appeal; or (xiv) any of the events described in this default section occurs with respect to Responsible Party.
Our Rights Upon Default. Upon default, Lender may demand the immediate payment of all amounts owed Lender. Lender may hire or pay someone else to help collect any amount that Borrower may owe Lender. Borrower agrees to pay any collection, arbitration, court costs incurred by Lender or other sums provided or allowed by law. This includes, subject to any limits under applicable law, attorneys’ fees and legal expenses for bankruptcy proceedings, civil actions, arbitration proceedings, declaratory actions or other filings or proceedings, and efforts to modify or vacate any automatic stay or injunction, appeals, and any anticipated post-judgment collection services.
Notice of Borrower or Responsible Party Default. Borrower agrees to furnish to us, immediately upon becoming aware of the existence of any condition or event which with the lapse of time or failure to give notice would constitute an event of default under this Agreement, written notice specifying the nature and period of the existence of such condition or event and any action which Borrower is taking or proposes to take with respect thereto.
Section 1.6. Arbitration (Agreement to Arbitrate Claims). Except as otherwise stated below, any Claim (as defined below) will be resolved, at the election of the Borrower or Lender, by binding arbitration pursuant to (a) this Arbitration Provision and (b) the code of procedure of the national arbitration organization to which the Claim is referred (as in effect when the Claim is filed). For the purposes of this Arbitration Provision, “Borrower” includes both Borrower and Responsible Party, which will be treated as a single party and election by either will be sufficient for a Claim to be arbitrated. Claims will be referred to either Judicial Arbitration and Mediation Services (“JAMS”) or the American Arbitration Association (“AAA”), as selected by the party electing to use arbitration. Streamlined arbitration procedures will be used if available. If a selection by Lender of one of these organizations is unacceptable to Borrower, Borrower has the right, within 30 calendar days after Borrower receives notice of Lender’s selection, to select the other organization listed to serve as arbitration administrator. For purposes of this Arbitration Provision, “Claim” means any claim, dispute or controversy (whether in contract, tort, or otherwise) past, present or future, (collectively, “Claims”) as further described below. If for any reason a selected organization cannot, will not, or ceases to serve as an arbitration administrator, Borrower or Lender may substitute another arbitrator or arbitration organization that uses a similar code of procedure and is mutually acceptable to both parties, in accordance with Section 5 of the Federal Arbitration Act. If both parties cannot agree on an arbitration organization, then either party may ask a court of competent jurisdiction to appoint a qualified arbitration organization. An arbitration proceeding can decide only Borrower’s or Lender’s Claims. Borrower cannot join other parties (or consolidate Claims). Neither Borrower nor Lender will be permitted to arbitrate claims on a class-wide (that is, on other than an individual) basis.
Small Claims Court Option. All parties, including related third parties, shall retain the right to seek adjudication of an individual (and not class or representative) Claim in a small claims tribunal in the county of Borrower’s residence for disputes within the scope of such tribunal’s jurisdiction. Any dispute that cannot be adjudicated within the jurisdiction of a small claims tribunal, including claims transferred by the small claims tribunal to another court, shall be resolved by binding arbitration. Any appeal of a judgment from a small claims tribunal shall be resolved by binding arbitration.
SIGNIFICANCE OF ARBITRATION; LIMITATIONS AND RESTRICTIONS. IN ARBITRATION, NEITHER BORROWER NOR LENDER WILL HAVE THE RIGHT TO (i) HAVE A COURT OR JURY DECIDE THE CLAIM BEING ARBITRATED, (ii) ENGAGE IN PRE-ARBITRATION DISCOVERY (THAT IS, THE RIGHT TO OBTAIN INFORMATION FROM THE OTHER PARTY) TO THE SAME EXTENT THAT BORROWER OR LENDER COULD IN COURT, (iii) PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS IN A CLASS ACTION, IN COURT OR IN ARBITRATION, RELATING TO ANY CLAIM SUBJECT TO ARBITRATION OR (iv) JOIN OR CONSOLIDATE CLAIMS OTHER THAN BORROWER’S OWN OR LENDER’S OWN. OTHER RIGHTS AVAILABLE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. Except as set forth below, the arbitrator’s decision will be final and binding. Only a court may decide the validity of items (iii) and (iv) above. If a court holds that items (iii) or (iv) are limited, invalid or unenforceable, then this entire Arbitration Provision will be null and void. Borrower or Lender can appeal any such holding. If a court holds that any other part(s) of this Arbitration Provision (other than items (iii) and (iv)) are invalid, then the remaining parts of this Arbitration Provision will remain in force. An arbitrator will decide all other issues pertaining to arbitrability, validity, interpretation and enforceability of this Arbitration Provision. The decision of an arbitrator is as enforceable as any court order and may be subject to very limited review by a court. An arbitrator may decide any Claim upon the submission of documents alone. A party may request a telephonic hearing if permitted by applicable rules. The exchange of non-privileged information relevant to any Claim, between the parties, is permitted and encouraged. Either party may submit relevant information, documents or exhibits to the arbitrator for consideration in deciding any Claim.
Right to Opt-Out of Arbitration. Borrower may opt-out of this Arbitration Provision. If Borrower does so, neither Borrower nor Lender will have the right to engage in arbitration. Opting out of this Arbitration Provision will have no effect on any of the other provisions in this Agreement. To opt out of this Arbitration Provision, Lender must receive Borrower’s written notice of opt-out, within 30 calendar days after Lender approves Borrower’s Loan, at Behalf Loans by FinWise, PO Box 1804, New York, NY 10159. In Borrower’s letter, Borrower must give Lender the following information: Borrower’s name, address and loan number. The right to opt-out granted here applies solely to this Arbitration Provision and this Agreement, and not to any other provision of this Agreement or to any other loan made under the Loan Program Agreement or other agreement with Lender. In the event of a dispute over whether Borrower has provided a timely opt-out notice, Borrower must provide proof of delivery.
Broad Meaning of “Claims.” The term “Claims” in this Arbitration Provision is to be given the broadest possible meaning and includes, by way of example and without limitation, Claims arising from or relating to (i) this Agreement, (ii) any transactions effected pursuant to this Agreement, (iii) terms of or change or addition of terms to this Agreement, (iv) collection of Borrower’s obligations arising from this Agreement, (v) advertisements, promotions or oral or written statements relating to this Agreement or any transactions between Borrower and Lender pursuant to this Agreement, including any Claims regarding information obtained by Lender from, or reported by Lender to, credit reporting agencies or others, (vi) Claims between Borrower and Lender or Lender’s parent corporations, wholly or majority owned subsidiaries, affiliates, predecessors, successors, assigns, agents, independent contractors, employees, officers, directors or representatives arising from any transaction between Borrower and Lender pursuant to this Agreement and (vii) Claims regarding the validity, enforceability or scope of this Arbitration Provision or this Agreement including but not limited to whether a given claim or dispute is subject to arbitration.
Arbitration Procedure and Costs. For a copy of relevant codes of procedure, to file a Claim or for other information about JAMS and AAA, write them, visit their web site or call them at: (i) for JAMS, 18881 Von Karman Ave., Suite 350, Irvine, CA 92612, https://www.jamsadr.com, or 1-800-352-5267; or (ii) for AAA, 120 Broadway, 21st Floor, New York, NY 10271, https://www.adr.org, or 1-800-778-7879. If either party fails to submit to arbitration following a proper demand to do so, that party will bear the costs and expenses, including reasonable attorneys’ fees, incurred by the party compelling arbitration. Any physical arbitration hearing will be held in the federal judicial district selected by Borrower. No matter which party initiates the arbitration, Lender will advance or reimburse filing fees and other costs or fees of arbitration. Each party will initially be responsible for its own attorneys’, experts’ and witness fees and related costs and expenses. Unless prohibited by law, the arbitrator may, applying applicable law, award fees, costs and reasonable attorneys’ fees and expenses to the party who substantially prevails in the arbitration. The allocation of fees and costs relating to an appeal in arbitration will be handled in the same manner. For an explanation and schedule of the fees that may apply to an arbitration proceeding, please contact the organizations at the addresses above. The appropriate fee schedule in effect from time to time is hereby incorporated by reference into this Arbitration Provision. The cost of arbitration may be higher or lower than the cost of bringing a Claim in court, depending upon the nature of the Claim and how the arbitration proceeds. Having more than one Claim and holding a physical arbitration hearing can increase the cost of arbitration.
Governing Law for Arbitration. This Arbitration Provision is made pursuant to a transaction involving interstate commerce, and will be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq., as amended, notwithstanding any other governing law provision in this Agreement. The arbitrator will apply applicable substantive law consistent with the FAA and applicable statutes of limitations and will honor claims of privilege recognized at law. Judgment upon any arbitration award may be entered and enforced in any court having jurisdiction. The arbitrator’s decision will be final and binding, except for any right of appeal provided by the FAA, in which case any party can appeal the award to a three-arbitrator panel administered by the selected arbitration administrator. The panel will reconsider de novo, that is, without deference to the ruling of the original arbitration, any aspect of the initial award requested by the appealing party.
Continued Effect of Arbitration Provision. This Arbitration Provision will continue to govern any Claims that may arise without regard to any termination or cancellation of this Agreement. If any portion of this Arbitration Provision, other than the provisions prohibiting class-wide arbitration, joinder or consolidation, is deemed invalid or unenforceable under the FAA, it will not invalidate the remaining portions of this Arbitration Provision. If a conflict or inconsistency arises between the code of procedures of the selected arbitration administrator and this Arbitration Provision, this Arbitration Provision will control.
II. REPRESENTATIONS, WARRANTIES AND COVENANTS
Each of Borrower and Responsible Party represents, warrants and covenants the following as of the date hereof and at all times during the term of this Agreement:
Section 2.1. Covenant Representation. Borrower shall comply with each of the Borrower Contractual Covenants as set forth herein.
Section 2.2. Borrower Information. All information (financial and other) provided by or on behalf of Borrower to Lender in connection with the execution of or pursuant to this Agreement and during the term of this Agreement is and will be true, accurate and complete in all respects. Borrower shall furnish Lender such information as Lender may request from time to time.
Section 2.3. Reliance on Information. Borrower and Responsible Party acknowledge and agree that all information (financial and other) provided by or on behalf of Borrower and Responsible Party either as of the date hereof or hereafter has been and may continue to be relied upon by Lender in connection with any decision that Lender makes to extend additional time to repay or to loan Borrower future funds.
Section 2.4. Compliance. Borrower will comply with any and all federal, state and local laws and regulations and rules and regulations. Borrower will, at all times, maintain and be 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 Borrower is presently engaged.
Section 2.5. Authorization. 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.
Section 2.6. Insurance. 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.
Section 2.7. Change in Name or Location. Borrower does not and shall not conduct Borrower’s business under any name other than as disclosed to Lender and shall not change its place of business.
Section 2.8. Working Capital Funding. Borrower shall not enter into any arrangement, agreement or commitment that relates to or involves any of Borrower’s accounts receivable, whether in the form of a purchase of, a loan against, or the sale or purchase of credits against, Borrower’s accounts receivable or future credit card or online sales with any party other than Lender without the prior written consent of Lender.
Section 2.9. Unencumbered Accounts Receivable. Borrower has good, complete and marketable title to all of its accounts receivable, free and clear of any and all liabilities, liens, claims, charges, 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, Lender.
Section 2.10. Valid Organization. Borrower is a valid business domiciled in the United States or a territory thereof in good standing under the laws of the jurisdiction of its formation.
Section 3.1. Modifications; Amendments; Construction. No modification, amendment or waiver of any provision of this Agreement shall be effective unless the same shall be in writing and signed by the parties affected. The headings of the sections and subsections herein are inserted for convenience only and under no circumstances shall they affect in any way the meaning or interpretation of this Agreement. For purposes of this Agreement, “including” shall mean “including, without limitation.”
Section 3.2. Notices. Except as otherwise provided in this Agreement, any notice provided under this Agreement must be in writing or electronic. Notices will be deemed given when properly addressed and deposited in the U.S. mail, postage prepaid, First Class mail; delivered in person; or sent by registered mail; by certified mail; by nationally recognized overnight courier; or by electronic mail. Notice to Borrower will be sent to Borrower’s last known address in our records. Notice to any of Borrower or Responsible Party will be deemed notice to both. Notice to Lender may be sent to Behalf Loans by FinWise, PO Box 1804, New York, NY 10159. Borrower agrees to notify Lender immediately if Borrower changes Borrower’s name, Borrower’s postal or electronic mail address or other contact information, if there are any errors in the information regarding transactions on Borrower’s account or information that Borrower provides to Lender, or if any of Borrower or Responsible Party dies, is declared incompetent or is subject of a bankruptcy or insolvency proceeding. Borrower and Responsible Party agree that a notice of incompetence is not effective unless issued by a court having jurisdiction, and Lender receives notice and instruction from the court. Notwithstanding the above, Lender may, at Lender’s option, accept other evidence of incompetence acceptable to Lender. Borrower and Responsible Party agree to indemnify and hold Lender harmless from and against any and all claims relating to acceptance or non-acceptance of proof of incompetence in any transaction. This indemnity will survive termination of this Agreement.
Section 3.3. Waiver; Remedies. No delay on the part of Lender 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 of any other right. The remedies provided hereunder are cumulative and not exclusive of any remedies provided by law or equity.
Section 3.4. D/B/A’s. Borrower hereby acknowledges and agrees that Lender may be using “doing business as” or “d/b/a” names in connection with various matters relating to the transaction between Lender and Borrower, including in notices or filings.
Section 3.5. Binding Effect. This Agreement shall be binding upon and inure to the benefit of Borrower, Responsible Party, Lender and their respective successors and permitted assigns.
Section 3.6. Governing Law. With the exception of Section 1.6 above, which is to be governed exclusively by the FAA, this Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Utah without regard to internal principles of conflict of laws. Borrower hereby submits to the jurisdiction of any Utah state or federal court sitting in Salt Lake County, Utah, at Lender’s choice. Borrower hereby waives any claim that an action is brought in an inconvenient forum, that the venue of the action is improper, or that this Agreement or the transactions of which this Agreement is a part may not be enforced in or by any of the above-named courts.
Section 3.7. Term and Survival. This Agreement shall continue in full force and effect until all obligations hereunder have been satisfied in full; provided, however, that any Section that, by its terms suggests survival beyond termination hereof, shall so survive until the natural expiration thereof.
Section 3.8. Severability. In case any one or more of the provisions contained in this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby.
Section 3.9. Entire Agreement. This Agreement, the Loan Program Agreement, and the Portal contain the entire agreement and understanding among Borrower, Responsible Party, and Lender and supersedes all prior agreements and understandings with respect to this Loan, whether oral or in writing, relating to the subject matter hereof unless otherwise specifically reaffirmed or restated herein. The terms of the Loan Program Agreement are incorporated into this Agreement by reference.
Section 3.10. Jury Trial Waiver. THE PARTIES HERETO WAIVE TRIAL BY JURY 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, 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.
Section 3.11. Class Action Waiver. THE PARTIES HERETO WAIVE ANY RIGHT 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.
Section 3.13. In case of Errors or Questions About Borrower’s 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 Periodic Payments due while Lender investigates a suspected error.
In Borrower’s letter, please give Lender the following information:
- Borrower’s name and email address,
- The dollar amount of the suspected error,
- A description of the error, and
- An explanation of why Borrower believes there is an error.
Section 3.14. Guaranty. If requested by Lender, Borrower and Responsible Party will cause to be executed and delivered to Lender a separate guaranty by Responsible Party in form and substance satisfactory to Lender.
Section 3.15. Setoff. In addition to any rights and remedies of the Lender provided by law, if Borrower is in default, Lender is authorized at any time and from time to time, without prior notice to Borrower, any such notice being waived by the Borrower to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held by, and other indebtedness at any time owing to, the Lender to or for the credit or the account of the Borrower against any and all Obligations owing to the Lender, now or hereafter existing, irrespective of whether or not the Lender shall have made demand under this Agreement or any Loan Document and although such Obligations may be contingent or unmatured. The Lender agrees promptly to notify the Borrower after any such setoff and application made by the Lender; provided, however, that the failure to give such notice shall not affect the validity of such setoff and application.