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Filing # 135577876 E-Filed 09/29/2021 02:16:06 PM
IN THE CIRCUIT COURT OF THE
9" JUDICIAL CIRCUIT, IN AND FOR
OSCEOLA COUNTY, FLORIDA
FC MARKETPLACE, LLC, a Delaware
Limited Liability Company
CASE NO.
Plaintiff,
VS.
LEONEL TORRES, DDS, P.A., a Florida
corporation; and LEONEL TORRES, an
Individual, jointly and severally
Defendants.
COMPLAINT
Plaintiff sues Defendants and states:
GENERAL ALLEGATIONS
1 This is an action for damages that exceeds $30,000.00.
2 Defendant, LEONEL TORRES, DDS, P.A. is a Florida corporation which
maintains its principal place of business in Osceola County. Defendant, LEONEL TORRES is an
individual who is sui juris.
3 Plaintiff is a Delaware Limited Liability Company.
COUNT I
BREACH OF CONTRACT
4 Plaintiff re-alleges and incorporates each and every allegation as contained in
Paragraphs | through 3 herein.
5 On or about March 25, 2019, LEONEL TORRES, DDS, P.A. (“Borrower”)
entered into a Business Loan and Security Agreement with Plaintiff for $200,000.00 less credit
for payment(s) received leaving a default principal balance due in the amount of $172,070.91
pursuant to Exhibit A plus pre-judgment interest after default on March 29, 2021 at the state
statutory rate of 4.25% per annum, plus attorneys’ fees and expenses as may be awarded by the
Court.
6 LEONEL TORRES, DDS, P.A. breached the subject Agreement by failing to
make payment when due as set forth in Exhibit A.
7 Plaintiff has been damaged in the amount of $172,070.91.
8 All conditions precedent to bringing this action have been performed, waived or
have occurred.
WHEREFORE, LEONEL TORRES, DDS, P.A. is liable to FC Marketplace, LLC in the
amount of $172,070.91 pursuant to Exhibit A plus pre-judgment interest after default on March
29, 2021 at the state statutory rate of 4.25% per annum, plus attorneys’ fees and expenses as may
be awarded by the Court.
COUNT II
ACCOUNT STATED
9 Plaintiff re-alleges and incorporates each and every allegation as contained in
Paragraphs | through 3 herein.
10. A true and correct copy of the payment history for the loan is attached hereto as
Exhibit A.
iL. All conditions precedent to bringing this action have been performed, waived or
have occurred.
WHEREFORE, LEONEL TORRES, DDS, P.A. is liable to FC Marketplace, LLC in the
amount of $172,070.91 pursuant to Exhibit A plus pre-judgment interest after default on March
29, 2021 at the state statutory rate of 4.25% per annum, plus attorneys’ fees and expenses as may
be awarded by the Court.
COUNTIIT
UNJUST ENRICHMENT
12. Plaintiff re-alleges and incorporates each and every allegation as contained in
Paragraphs | through 3 herein.
13. The Plaintiff has conferred a benefit on the Defendants who have knowledge
thereof.
14, The Defendants voluntarily accepted and retained the benefit conferred.
15. The circumstances are such that it would be inequitable for the Defendants to
retain the benefit without paying the value thereof in the amount of $172,070.91 to the Plaintiff.
16. All conditions precedent to bringing this action have been performed, waived or
have occurred.
WHEREFORE, the Defendants are liable to FC Marketplace, LLC in the amount of
$172,070.91 pursuant to Exhibit A plus pre-judgment interest after default on March 29, 2021 at
the state statutory rate of 4.25% per annum, plus attorneys’ fees and expenses as may be awarded
by the Court.
COUNT IV
CONTRACT
17. Plaintiff re-alleges and incorporates each and every allegation as contained in
Paragraphs | through 3 herein.
18. On or about March 25, 2019 a Business Loan and Security Agreement and
Commercial Promissory Note (collectively, the “Agreement”) was executed on behalf of
LEONEL TORRES, DDS, P.A., whereby Plaintiff, as the lender, financed a loan to LEONEL
TORRES, DDS, P.A. for use in its business operations. A true and correct copy of the Agreement
and Promissory Notes are attached hereto and incorporated by reference for all purposes as
Exhibit B.
19. All conditions precedent to bringing this action have been performed, waived or
have occurred.
WHEREFORE, LEONEL TORRES, DDS, P.A. is liable to FC Marketplace, LLC in the
amount of $172,070.91 pursuant to Exhibit A plus pre-judgment interest after default on March
29, 2021 at the state statutory rate of 4.25% per annum, plus attorneys’ fees and expenses as may
be awarded by the Court.
COUNT V
GUARANTY(IES)
20. Plaintiff re-alleges and incorporates each and every allegation as contained in
Paragraphs 1 through 3 herein.
21. On or about March 25, 2019, LEONEL TORRES (“Guarantor”) executed a
Continuing Guaranty (“Guaranty”) whereby he personally guaranteed in favor of FC
Marketplace, LLC the loan made by FC Marketplace, LLC to LEONEL TORRES, DDS, P.A.,
such that Guarantor was obligated to pay the remaining default principal balance plus pre-
judgment interest after default on March 29, 2021 at the state statutory rate of 4.25% per annum,
plus attorneys’ fees and expenses, and any other expenditures Plaintiff is entitled to recoup
pursuant to the Agreement should LEONEL TORRES, DDS, P.A. fail to pay any amounts due
and owing.
22. LEONEL TORRES, DDS, P.A. has failed to make one or more of the required
monthly payments, constituting an Event of Default under the Agreement. Plaintiff made
numerous demands upon LEONEL TORRES, DDS, P.A. for the past due payments under the
Agreement, but LEONEL TORRES, DDS, P.A. failed and refused to pay the required amounts
or any part thereof. Pursuant to the Agreement, Plaintiff has retained Nathan A. Schwartz, P.A.
and is obligated to pay its counsel a reasonable fee.
23. Plaintiff declared the loan to be in default on March 29, 2021. Plaintiff has also
accelerated the maturity of the loan in accordance with the terms of the Agreement, thereby
declaring the entire indebtedness immediately due and payable.
24, Plaintiff has complied with all conditions precedent under the Agreement and
Guaranty(ies).
WHEREFORE, LEONEL TORRES , DDS, P.A. and LEONEL TORRES are liable to FC
Marketplace, LLC in the amount of $172,070.91 pursuant to Exhibit A plus pre-judgment
interest after default on March 29, 2021 at the state statutory rate of 4.25% per annum, plus
attorneys’ fees and expenses as may be awarded by the Court.
Nathan A. Schwartz, P.A.
Counsel for Plaintiff
5255 North Federal Highway
Suite 305
Boca Raton, Florida 33487
Telephone (561) 347-8376
E-mail: attyschwartz@yahoo.com
servicenas@yahoo.com
By:__/s/ Nathan A. Schwartz
Nathan A. Schwartz
FL Bar No. 511528
Funding Circle Page No. 1
Payment History
05/05/2021 09:46:21
‘Account Name: LEONEL TORRESS, DDS P.A. Loan iD: 503026768
Address: 4000 KEVSTIN DR Note/Maturity Date: 03/27/2024
City/State!Zip: KISSIMMEE FL 34744-6800 Type: Term
Tax ID #: Amount Financed: $200,000.00
Collateral Type:
ACCOUNT HISTORY
Date Effective Amount Amount Amount Amount Amount Principal
Received Date Received Applied to Applied to Applied to Applied to Balance After
Fees Interest Principal Suspense ‘Transaction
03/30/2019 03/27/2019 30.00 $0.00 $0.00 $0.00 $0.00 $200,000.00
04/15/2019 04/09/2019 $109.44 $0.00 $0.00 $0.00 $0.00 $200,000.00
04/15/2019 04/09/2019 $0.00 $0.00 $0.00 $0.00 $0.00 $200,000.00
04/27/2019 04/27/2019 $5,265.45 $0.00 $3,283.33 $1,982.12 $0.00 $198,017.88
05/16/2019 04/27/2019 -$109.44 $0.00 -$109.44 $0.00 $0.00 $198,017.88
05/16/2019 04/27/2019 $109.44 $0.00 $0.00 $0.00 $0.00 $198,017.88
05/16/2019 04/27/2019 $0.00 $0.00 $108.44 $0.00 $0.00 $198,017.88
08/16/2019 04/27/2019 $0.00 $0.00 $0.00 $0.00 $0.00 $198,017.88
08/27/2019 05/27/2019 $5,265.45 $0.00 $3,250.79 $2,014.66 $0.00 $196,003.22
06/27/2019 06/27/2019 $5,265.45 $0.00 $3,217.72 $2,047.73 $0.00 $193,955.49
07/27/2019 07/27/2019 $5,265.45 $0.00 $3,184.10 $2,081.35 $0.00 $191,874.14
08/27/2019 08/27/2019 $5,265.45 $0.00 $3,149.93 $2,115.52 $0.00 $189,758.62
09/27/2019 09/27/2019 $5,265.45 $0.00 $3,115.20 $2,160.25 $0.00 $187,608.37
10/27/2019 10/27/2019 $5,265.45 $0.00 $3,079.90 $2,185.55 $0.00 $185,422.82
112712019 11/27/2019 $5,265.45 $0.00 $3,044.02 $2,221.43 $0.00 $183,201.39
12/27/2019 12/27/2019 $5,265.45 $0.00 $3,007.56 $2,257.89 $0.00 $180,943.50
01/27/2020 01/27/2020 $5,265.45 $0.00 $2,970.49 $2,204.96 $0.00 $178,848.54
02/27/2020 02/27/2020 $5,265.45, $0.00 $2,932.81 $2,332.64 $0.00 $176,315.90
04/01/2020 03/31/2020 $1,000.00 $0.00 $1,000.00 $0.00 $0.00 $176,315.90
05/19/2020 05/18/2020 $1,500.00 $0.00 $1,500.00 $0.00 $0.00 $176,315.90
06/01/2020 05/29/2020 $7,000.00 $0.00 $1,000.00 $0.00 $0.00 $176,315.90
06/10/2020, 96/09/2020 $2,000.00 $0.00 $2,000.00 $0.00 $0.00 $176,315.90
07/06/2020 07/02/2020 $2,000.00 $0.00 $2,000,00 $0.00 $0.00 $176,315.90
07/15/2020 07/14/2020 $4,000.00 $0.00 $4,000.00 $0.00 $0.00 $176,315.90
07/17/2020 07/16/2020 $2,000.00 $0.00 $1,997.77 $2.23 $0.00 $176,313.67
08/17/2020 08/14/2020 $2,500.00 $0.00 $2,500.00 $0.00 $0.00 $176,313.67
09/17/2020 09/16/2020 $2,000.00 $0.00 $2,000.00 $0.00 $0.00 $176,313.67
09/18/2020 09/17/2020 $2,000.00 $0.00 $1,330.07 $669.93 $0.00 $175,643.74
10/28/2020 10/27/2020 $2,000.00 $0.00 $2,000.00 $0.00 $0.00 $175,643.74
11/04/2020 1703/2020 $2,000.00 $0.00 $2,000.00 $0.00 $0.00 $175,643.74
11/23/2020 14/20/2020 $2,000.00 $0.00 $2,000.00 $0.00 $0.00 $175,643.74
1201/2020 14/30/2020 $2,000.00 $0.00 $985.47 $1,014.53 $0.00 $174,629.21
12/23/2020 12/22/2020 $2,000.00 $0.00 $2,000.00 $0.00 $0.00 $174,629.21
1/19/2021 01/19/2021 $5,265.45 $0.00 $2.707.15 $2,558.30 $0.00 $172,070.91
[ interest Paid to Date: $65,256.31 Principal Paid to Date: $27,929.09
Exhibit A
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Lender: Borrower:
FC MARKETPLACE, LLC LEONEL TORRESS, DDS P.A.
San Francisco, CA 1000 kevstin drive
. kissimmee, FL 34744
BUSINESS LOAN AND SECURITY AGREEMENT
THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION — SEE SECTION 12
This BUSINESS LOAN AND SECURITY AGREEMENT (this “Agreement” is entered into as of the last:date written
below (the “Effective Date”) between Borrower(s) named above (individually and, if more than one, collectively, the
“Borrower") and FC Marketplace, LLC, a Delaware limited liability company, with its principal place of business at 747 Front
Street, 4! Floor, San Francisco, California 94111 (‘Lender’). Borrower and Lender may be referred: to herein each
individually as a “Party” or collectively as the “Parties.”
41 THE LOAN.
(a) Loan Terms. Subject to the terms of this Agreement and the other Loan Documents (as defined in Section 1(b)),
Borrower may receive a commercial loan or other credit arrangement (the “Loan”) from Lender. The Loan will be evidenced
by a Commercial Promissory Note, in form and substance satisfactory to Lender, to be executed and delivered to Lender
concurrently with the execution and delivery of this Agreement (the “Note”), and will bear interest and be paid in accordance
with the payment terms set forth in the Note.
(b) Loan Documents. Each and every term, condition, representation, warranty, covenant, promise and obligation set
forth in this Agreement shall apply fully to.each Loan Document. “Loan Documents” refer to this Agreement, the Note, any
Continuing Guaranty, Authorization, and any other document executed or delivered in connection with or otherwise relating
to this Agreement or any Indebtedness (as defined in Section 1(c)). Each Loan Document is hereby incorporated into this
Agreement by this feference as though fully set forth herein.
(c) ‘Intent and Scope of this Agreement. Borrower understands and agrees that this Agreement shall apply to all
credit extended under this: Agreement or any other Loan Document at any time, including the granting, renewing, or
extending of any such credit. “Indebtedness” means all indebtedness evidenced by this Agreement and the other Loan
Documents, including all principal and interest together with any costs incurred in connection with protecting or enforcing
the security interest created by this Agreement and the other Loan Documents and all other indebtedness and costs and
expenses for which Borrower is responsible under this Agreement or any other Loan Document.
(a) Definitions.
(i) All capitalized words and terms shall have the meanings set forth in this Agreement and the other Loan
Documents.
(ii) Capitalized words and terms not otherwise defined in this Agreement and the other Loan Documents shall
have the meanings attributed to such terms in the Uniform Commercial Code as in effect as on the Effective Date in the
State of California or, if Borrower is located in the State of South Dakota, in South Dakota (the "UCC’) or other applicable
law.
(iii) Unless specifically stated to the contrary, all references to Lender shall include the Lender's registered
successors and assigns or any authorized agent thereof.
wi
Eyhibt 8
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(iv) Uniess specifically stated to the contrary, all references to dollar amounts shall mean amounts in jawful
money of the United States of America. Accounting words and terms not otherwise defined in this Agreement and the other
Loan Documents shall have the meanings assigned to them in accordance with generally accepted accounting principles
(“GAAP”) as in effect on the Effective Date
(v) As used in this Agreement, all references to the masculine gender shall include the feminine gender (and
vice versa), all references to “include’ includes” or “including” shall be deemed to be followed by the words “without
limitation,” and references to any law or regulation refer to that law or regulation as amended from time to time and inciude
any successor law or regulation. Words and terms used in the singular shall include the plural, and the plural shall include
the singular, as the context may require.
2 TERM. This Agreement shall be effective as of the Effective Date and shall continue in full force and effect until
such time as all Indebtedness has been paid in full, including principal, interest and any other amounts required to be paid
by Borrower under the Note or any other Loan Document, or until such time as the Parties may agree in writing to terminate
this Agreement. The Note will not be effective until the date upon which Lender receives and accepts the Note and disburses
the Loan proceeds (the “Closing Date”). Borrower waives any statute of limitations applicable to this Agreement to the fullest
extent permissible by law. A Loan repayment schedule shall be available to Borrower by written request to Lender-at any
reasonable time and from time to time upon reasonable prior notice.
3 GRANT OF SECURITY INTEREST.'
(a) Grant of Security Interest. For valuable consideration, the adequacy and receipt of which is hereby acknowledged
Borrower grants to Lender, as collateral security for the payment and performance in full of all Indebtedness, a lien on and
security interest in and to all of the right, title and interest of Borrower. in, to and under the following property, wherever
located, and whether now existing or hereafter arising or acquired from time to time (collectively, the “Collateral"):
(i) all Accounts,
(ii) all Equipment, Gaads, Inventory and Fixtures;
(ili) ail Documents, Instruments and Chattel Paper;
(iv) li Letters of Credit and Letter of Credit Rights.
(v) all Invegtment Property:
Avi) all Patents, Copyrights, Trademarks and Trade Secrets (in each case, as defined below), and all license
and distribution agreements with, and covenants not to sue, any other party with respect to any Patents, Trademarks,
Copyrights or Trade Secrets or any other patent, trademark, copyright or trade secret, whether Borrower is a licensor or
licensee, distributor or distributee under any such license or distribution agreement, together with any and all (A) renewals
extensions, supplements and continuations thereof, (B) income, fees, royalties, damages, claims and payments now and
hereafter due and/or payable thereunder and with respect thereto, including damages and payments for past, present or
future infringements or violations thereof, (C) rights to sue for past, present and future infringements or violations thereof,
and (D) other rights to use, exploit or practice any or all of the Patents, Trademarks, Copyrights or Trade Secrets or any
other patent, trademark, copyright or trade secret and all other industrial, intangible and intellectual property of any type,
including mask works and industrial designs.
(A) “Patents” means all patenis issued or assigned to, and all patent applications and registrations
made by, Borrower (whether issued, established or registered or recorded in the United States or any other country
or any political subdivision thereof) and all tangible embodiments of the foregoing, together with any and all (1)
rights and privileges arising under applicable law and international treaties and conventions with respect to
nent tenet
‘ If Borrower is a resident of Illinois or Ohio, please refer to Section 16 for additional information
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Borrower's use of any patents, (2) inventions and improvements described and claimed therein, (3) reissues,
divisions, continuations, renewals, extensions and continuations-in-part thereof and amendments thereto, (4)
income, fees, royalties, damages, claims and payments now or hereafter due and/or payable thereunder and with
respect thereto, including damages and payments for past, present or future infringements thereof, (5) rights
corresponding thereto throughout the world and (6) rights to sue for past, present or future infringements thereof,
(B) “Copyrights” means all copyrights (whether statutory or common law, whether established or
registered in the United States or any other country or any political subdivision thereof, whether registered or
unregistered and whether published or unpublished), all tangible embodiments of the foregoing and all copyright
registrations and applications made by Borrower, in each case, whether now owned or hereafter created or acquired
by or assigned to Borrower, together with any and all (1) rights and privileges arising under applicable law and
international treaties and conventions with respect to Borrower's use of such copyrights, (2) reissues,.renewals,
continuations and extensions thereof and amendments thereto, (3) income, fees, royalties, damages, claims and
payments now or hereafter due and/or payable with respect thereto, including damages and.payments for past,
present or future infringements thereof, (4) rights corresponding thereto throughout the world and (5) rights to sue
for past, present or future infringements thereof
(C) “Trademarks” means, other than United States intent-to-use trademark applications to the extent
that and solely during the period in which the grant of a security interest therein would impair, under federal law, the
registrability of such applications or the validity or enforceability of registrations issuing from such applications, all
trademarks (including service marks), slogans, logos, symbols, certification marks, collective marks, trade dress,
uniform resource locators (URL's), domain names, corporate names and trade names, whether statutory or
common law, whether registered or unregistered and whether established or registered in the United States or any
other country or any political subdivision thereof that are owned by or assigned to Borrower, all registrations and
applications for the foregoing and all tangible embodiments of the foregoing, together with, in each case, the
goodwill symbolized thereby and any and all (1) rights and privileges arising under applicable law and international
treaties and conventions with respect to Borrower's use of any trademarks, (2) reissues, continuations, extensions
and renewals thereof and amendments thereto, (3) income, fees, royalties, damages and payments now and
hereafter due and/or payable thereunder and with respect thereto, including damages, claims and payments for
past, present or future infringements thereof, (4) rights corresponding thereto throughout the world and (5) rights to
sue for past, present and future infringements thereof; and
(D) ‘Trade Secrets”. means all know-how, trade secrets, manufacturing and production processes and
techniques, inventions, research and development information, technical, marketing, financial and business data
and databases, pricing and cost information, business and marketing plans, customer and supplier lists and
information, all other confidential and proprietary information and all tangible embodiments of the foregoing, together
with any and all (1) rights and privileges arising under applicable law and international treaties and conventions with
respect to such trade secrets, (2) income, fees, royalties, damages, claims and payments now or hereafter due
and/or payable with respect thereto including damages and payments for past, present or future misappropriations
thereof, (3) rights corresponding thereto throughout the world and (4) rights to sue for past, present or future
misappropriations thereof.
(vii) all Commercial Tort Claims;
(vii all General Intangibles;
(ix) all money and all Deposit Accounts;
(x) all Supporting Obligations
(xi) all books and records, customer lists, credit files, computer files, programs, printouts and other computer
materials and records relating to the Collateral and any General Intangibles at any time evidencing or relating to any of the
foregoing;
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(xii) all motor vehicles covered by a certificate of title law of any state; and
(xiii) to the extent not covered by clauses (i) through (xii) of this Section 3(a), all other assets, personal property
and rights of Borrower, whether tangible or intangible, all Proceeds and products of each of the foregoing and all accessions
to, substitutions and replacements for, and rents, profits and products of, each of the foregoing and any and all Proceeds
of any insurance, indemnity, warranty or guaranty payable to Borrower from time to time with respect to any of the foregoing
(xiv) Notwithstanding anything to the contrary contained in clauses (i) through (xiii) above, the security interest
created by this Agreement shall not extend to, and the term "Collateral" shall not include any Excluded Property. “Excluded
Property” shail mean any lease, license or other agreement or contract or any property subject to a purchase money security
interest or similar arrangement, in each case permitted to be incurred under this Agreement, to the extent that a grant of a
security interest or lien therein would require a consent not obtained or violate or invalidate such lease, license or agreement
or contract or purchase money arrangement or similar arrangement or create a right of termination in favor of any other
party thereto (other than Borrower), in each case after giving effect to the applicable anti-assignment provisions of the UCC.
and other applicable law and other than Proceeds and receivables thereof, the assignment of which is expressly deemed
effective under the UCC or other applicable law notwithstanding such prohibition or any asset or property to the extent that
the grant of a security interest is prohibited by applicable law, rule or regulation or requires a consent not obtained of any
governmentai authority pursuant to such applicable law, rule or regulation, in each case after giving effect to the applicable
anti-assignment provisions of the UCC; provided that if any Excluded Property would have otherwise constituted Collateral,
when such property shall cease to be Excluded Property, such property shail be geemed at all times from and after the date
hereof to constitute Collateral
(b) Location of Collateral. Except in the ordinary course of Borrower's business, Borrower agrees to keep all Collateral
(or to the extent any Collateral consists of intangible property such as Accounts or General Intangibles, the records
concerning such Collateral) at Borrower's address shown above or at such other existing and future locations as are
approved by Lender in writing. Upon request by Lender at any time or from time to time, Borrower will promptly deliver to
Lender, in form satisfactory thereto, a schedule of real properties and Collateral locations relating to Borrower and
Borrower's operations, including without limitation the following: (i) all real property Borrower owns or is purchasing; (ii) all
real property Borrower is renting or leasing; (iii) all storage facilities Borrower owns, rents, leases or uses; and (iv) all other
properties where Collateral is or may be located
(c) Repairs and Maintenance. Borrower agrees to keep and maintain, and to cause others to keep and maintain, all
Collateral in good order, repair and condition at all times while this Agreement or any other Loan Document remains in
effect. Borrower further agrees to pay when due all claims for work done on, or services rendered or material furnished in
connection with Collateral so that no lien or encumbrance may ever attach to or be filed against Collateral, except as
permitted under this Agreement.
4. CONDITIONS TO FUNDING.
(a) Conditions Precedent. Lender's obligation to make the Loan under this Agreement and the other Loan Documents
shall be subject to the fulfillment to Lender's satisfaction of all of the conditions set forth in this Agreement and the other
Loan Documents, including the following specific conditions precedent
@) Closing Documents.
Jocun Borrower will have provided, and Lender will have accepted, in form and substance
satisfactory to Lender, all of the “Closing Documents" set forth in the loan packet (the "Loan Packet") delivered by Lender
to Borrower and which included proposed business loan details, a list of closing documents required to be submitted by
Borrower, and copies of this Agreement and the other Loan Documents.
(ii) Agreement. Borrower will have delivered to Lender this Agreement, duly executed by Borrower
(iii) Note. Borrower will have delivered to Lender, and Lender will have accepted, the Note, duly executed by
Borrower.
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(iv) Guaranties. Borrower will have provided to Lender executed guaranties of the Loan in favor of Lender, duly
executed by each Guarantor (as defined below), on Lender’s forms, and in the amount and under the terms set forth in
those guaranties.
(v) Borrower's Authorization, Borrower will have delivered in form and substance satisfactory to Lender
properly certified resolutions, duly authorizing the execution and delivery of this Agreement and the other Loan Documents
and other resolutions, authorizations, documents and instruments as Lender may require.
(vi) Other Loan Documents. Borrower will have delivered to Lender all Loan Documents for the Loan as Lender
shail deem necessary, all in form and substance satisfactory to Lender.
(vii) Information Verification. Lender has verified to its satisfaction any information submitted by Borrower during
the process of applying for the Loan, including requiring Borrower to produce appropriate documentation or other proof,
and/or conducting verification through a third party and/or credit reporting agencies, which Borrower agrees Lender has the
right to do.
(viii) Payment of Fees and Expenses. Borrower will have paid to Lender ail fees, charges any other jerbenses
which are then due and payable as specified in this Agreement and the other Loan Documents.
(ix) epresentations and Warranties. The representations and warranties set forth ‘in
i this ‘Auieement and the
other Loan Doce are true and correct.
(x) No Event of Default. There shall not exist any Event of Default (as defined in Section 8) under this
Agreement or any other Loan Document.
Notwithstanding the foregoing, Borrower's failure to meet any of the conditions precedent in this Section 4(a) will not provide
any basis for Borrower to contest the enforceability of this Agreement or any other Loan Document.
(b) Cessation of Lender’s Commitments. If Lender has made any commitment to make any disbursement of Loan
funds, whether under this Agreement, any other Loan Document, or any other agreement, Lender will have no obligation to
make such disbursement if: (i) Borrower or any guarantor of any of the Indebtedness (each, a “Guarantor” is in default
under the terms of this Agreement or any other Loan Document; (ii) any Guarantor, if a natural person, dies or becomes
incompetent, or Borrower or any Guarantor dies, becomes insolvent, files a petition in bankruptcy or similar proceedings,
or is adjudged as bankrupt; (iii) there occurs a material adverse change in Borrower's business or financial condition, in the
financial.condition of any Guarantor, or in the value of any Collateral; or (iv) any Guarantor seeks, claims or otherwise
attempts to limit, modify or revoke such Guarantor's guaranty of any of the Indebtedness.
5. BORROWER’S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Lender, as of
the Effective Date, the Closing Date, the date of any renewal, extension or modification of the Loan and at all times the
Loan exists, as follows:
(a) Organization. Borrower is, and at all times shall be, duly organized, validly existing, and in good standing under
the laws of the state in which it was organized. Borrower is duly authorized to transact business in all other states in which
Borrower is doing business, having obtained all necessary filings, governmental licenses and approvals for each state in
which Borrower is doing business. Specifically, Borrower is, and at all times shall be, duly qualified as a foreign corporation
in all states in which the failure to so qualify would have a material adverse effect on its business or financial condition
Borrower has the full power and authority to transact the business in which it is currently engaged or proposes to engage
and enter into and perform the Loan Documents. Unless Borrower has designated otherwise in writing, Borrower's principal
Office is the office at which Borrower keeps its books and records, including its records concerning any Collateral, and is
the address shown above. Borrower shall do all things necessary to preserve and to keep in full force and effect its existence,
tights and privileges, and shall comply with all regulations, rules, ordinances, statutes, orders and decrees of any
governmental or quasi-governmental authority or court applicable to Borrower and Borrower's business activities. In the
event that Borrower elects to change its form of business entity, Borrower will obtain advance written approval from Lender
to do so, and will comply with the provisions of Section 6(d)
Our Mission: To Build a Better Financial World
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FC 1D No.: 24ebf572-1ceb-4d33-ae47-e95cf2010862
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PU Circle
(b) Fictitious Business Name. Borrower has filed or recorded all documents or filings required by law relating to all
fictitious business names used by Borrower. The fictitious business names previously disclosed in writing to Lender
constitute a complete list of all fictitious business names under which Borrower does business.
(c) Authorization; No Violation. Borrower's execution, delivery and performance of this Agreement and the other
Loan Documents has been duly authorized by Borrower and does not (i) conflict with, result in a violation of, or constitute a
default under any provision of Borrower's articles of incorporation or organization or bylaws, any agreement or other
instrument binding upon Borrower, or any law, governmental regulation, court decree, or order applicable to Borrower; (ii)
require the consent or approval of any other person or entity; or (iii) create or impose any lien or security interest of any
asset of Borrower except that in favor of Lender created by this Agreement and the other Loan Documents.
(d) Financial Information. Each of Borrower's financial statements, including any personal financial statements and
employment information supplied to Lender, truly and completely disclose Borrower's financial condition as of the date of
such statement, and there has been no material adverse change in Borrower's financial condition subsequent to the date
of the most recent financial statement supplied to Lender. Borrower has no material contingent obligations except as
disclosed in the financial statements delivered by Borrower to Lender,
(e) Legal and Binding Effect. This Agreement and the other Loan Documents: constitute ‘Bet, valid and binding
obligations of Borrower enforceable against Borrower in accordance with their terms,
(f) Title. Borrower holds good and marketable title to all Collateral, free and clear of all liens and encumbrances except
for liens created by this Agreement and the other Loan Documents or previously disclosed to Lender in writing and
consented to by Lender in writing. No financing statement covering any Collateral is on file in any public office other than
those which reflect the security interest created by this Agreement and the other Loan Documents, or to which Lender has
specifically consented in writing. Borrower shall defend Lender's rights in any Collateral against the claims and demands of
all other persons. The Loan Documents create a valid security interest in favor of Lender in the Collateral.
(a) Enforceability of Collateral. To the extent any Collateral consists of Accounts, Chattel Paper, or General
Intangibles, such Collateral is enforceable in accordance with its terms, is genuine, and fully complies with all applicable
laws and regulations concerning form, content and manner of preparation and execution, and all persons appearing to be
obligated on such Collateral have authority and capacity to contract and are in fact obligated as they appear to be on such
Collateral. At the time any Account becomes subject to a security interest in favor of Lender, the Account shall be a good
and valid Account representing an undisputed, bona fide indebtedness incurred by the Account Debtor, for merchandise
held subject to delivery instructions or previously shipped or delivered pursuant to a contract of sale, or for services
previously'performed by Borrower with or for the Account Debtor. So long as this Agreement or any other Loan Document
remains in effect, Borrower shall not, without the prior written consent of Lender, compromise, settle, adjust, or extend
payment under or with regard to any such Accounts. There shall be no setoffs or counterclaims against any Collateral, and
no agreement shall have been made under which any deductions or discounts may be claimed concerning Collateral except
those disclosed to Lender in writing.
(h) Litigation and Claims. No litigation, claim, investigation, administrative proceeding or similar action (including
those for unpaid taxes) against Borrower is pending or threatened, and no other event has occurred which may materially
adversely affect Borrower's financial condition or properties, other than litigation, claims or other events, if any, that have
been disclosed to and acknowledged by Lender in writing.
(i) Taxes. To the best of Borrower's knowledge, (i) all of Borrower's tax returns and reports that are or were required
to be filed, have been filed and (ii) all taxes, assessments and other governmental charges have been paid in full, except
those currently being or to be contested by Borrower in good faith in the ordinary course of business and for which adequate
reserves have been provided.
) Lien Priority. Unless otherwise previously disclosed by Borrower in writing and agreed to by Lender in writing,
Borrower has not entered into or granted any security agreements, or permitted the filing or attachment of any security
interests on or affecting any Collateral,
Our Mission: To Build a Better Financial World
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FC ID No.: 2aeb/572- Aceb-4d33-ae47-e95cf2010862
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(k) BUSINESS LOAN. THE LOAN CONSTITUTES A BUSINESS LOAN FOR BUSINESS AND COMMERCIAL
PURPOSES AND IS NOT FOR PERSONAL, FAMILY, OR HOUSEHOLD OR ANY OTHER CONSUMER PURPOSES.
(1) Anti-Terrorism Laws, Money Laundering and Sanctions Neither Borrower, including each of its officers.
directors, and agents, and Guarantor(s):
(i) has (A) violated any Anti-Terrorism Laws (as defined below) or (B) engaged in any transaction, investment,
undertaking or activity that conceals the identity, source, or destination of the proceeds from any category of prohibited
offenses designated by the Organization for Economic Co-operation and Development's Financial Action Task Force on
Money Laundering:
(ii) is, or is owned or controlled by persons that are: (A) the subject of any Sanctions (as defined below), or (B
located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions; or
(iii) conducts any business or engages in making or receiving any contribution of goods, services, or money to
or for the benefit of any person, or in any country or territory that is the subject of any Sanctions, (B) deals in, or otherwise
engages in any transaction related to any property or interests in property blocked by.any Anti-Terrorism Law, or (C)
engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding any
of the prohibitions set forth in any Anti-Terrorism Law.
As used herein. {i-Terrorism laws” mean any law related to money laundering or financing terrorism including the United
and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct.Terrorism Act of 2001, the
Currency and Foreign Transactions Reporting Act, the Trading: with the Enemy Act, and’ Executive Order 13224 and
“Sanctions” means sanctions administered or enforced by the U.S. Department of the ‘Treasury's Office of Foreign Assets
Control, U.S. Department of State, or other relevant sanctions authority.
6. BORROWER'S AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Lender that, so long
Preview
Filing # 135577876 E-Filed 09/29/2021 02:16:06 PM IN THE CIRCUIT COURT OF THE 9" JUDICIAL CIRCUIT, IN AND FOR OSCEOLA COUNTY, FLORIDA FC MARKETPLACE, LLC, a Delaware Limited Liability Company CASE NO. Plaintiff, VS. LEONEL TORRES, DDS, P.A., a Florida corporation; and LEONEL TORRES, an Individual, jointly and severally Defendants. COMPLAINT Plaintiff sues Defendants and states: GENERAL ALLEGATIONS 1 This is an action for damages that exceeds $30,000.00. 2 Defendant, LEONEL TORRES, DDS, P.A. is a Florida corporation which maintains its principal place of business in Osceola County. Defendant, LEONEL TORRES is an individual who is sui juris. 3 Plaintiff is a Delaware Limited Liability Company. COUNT I BREACH OF CONTRACT 4 Plaintiff re-alleges and incorporates each and every allegation as contained in Paragraphs | through 3 herein. 5 On or about March 25, 2019, LEONEL TORRES, DDS, P.A. (“Borrower”) entered into a Business Loan and Security Agreement with Plaintiff for $200,000.00 less credit for payment(s) received leaving a default principal balance due in the amount of $172,070.91 pursuant to Exhibit A plus pre-judgment interest after default on March 29, 2021 at the state statutory rate of 4.25% per annum, plus attorneys’ fees and expenses as may be awarded by the Court. 6 LEONEL TORRES, DDS, P.A. breached the subject Agreement by failing to make payment when due as set forth in Exhibit A. 7 Plaintiff has been damaged in the amount of $172,070.91. 8 All conditions precedent to bringing this action have been performed, waived or have occurred. WHEREFORE, LEONEL TORRES, DDS, P.A. is liable to FC Marketplace, LLC in the amount of $172,070.91 pursuant to Exhibit A plus pre-judgment interest after default on March 29, 2021 at the state statutory rate of 4.25% per annum, plus attorneys’ fees and expenses as may be awarded by the Court. COUNT II ACCOUNT STATED 9 Plaintiff re-alleges and incorporates each and every allegation as contained in Paragraphs | through 3 herein. 10. A true and correct copy of the payment history for the loan is attached hereto as Exhibit A. iL. All conditions precedent to bringing this action have been performed, waived or have occurred. WHEREFORE, LEONEL TORRES, DDS, P.A. is liable to FC Marketplace, LLC in the amount of $172,070.91 pursuant to Exhibit A plus pre-judgment interest after default on March 29, 2021 at the state statutory rate of 4.25% per annum, plus attorneys’ fees and expenses as may be awarded by the Court. COUNTIIT UNJUST ENRICHMENT 12. Plaintiff re-alleges and incorporates each and every allegation as contained in Paragraphs | through 3 herein. 13. The Plaintiff has conferred a benefit on the Defendants who have knowledge thereof. 14, The Defendants voluntarily accepted and retained the benefit conferred. 15. The circumstances are such that it would be inequitable for the Defendants to retain the benefit without paying the value thereof in the amount of $172,070.91 to the Plaintiff. 16. All conditions precedent to bringing this action have been performed, waived or have occurred. WHEREFORE, the Defendants are liable to FC Marketplace, LLC in the amount of $172,070.91 pursuant to Exhibit A plus pre-judgment interest after default on March 29, 2021 at the state statutory rate of 4.25% per annum, plus attorneys’ fees and expenses as may be awarded by the Court. COUNT IV CONTRACT 17. Plaintiff re-alleges and incorporates each and every allegation as contained in Paragraphs | through 3 herein. 18. On or about March 25, 2019 a Business Loan and Security Agreement and Commercial Promissory Note (collectively, the “Agreement”) was executed on behalf of LEONEL TORRES, DDS, P.A., whereby Plaintiff, as the lender, financed a loan to LEONEL TORRES, DDS, P.A. for use in its business operations. A true and correct copy of the Agreement and Promissory Notes are attached hereto and incorporated by reference for all purposes as Exhibit B. 19. All conditions precedent to bringing this action have been performed, waived or have occurred. WHEREFORE, LEONEL TORRES, DDS, P.A. is liable to FC Marketplace, LLC in the amount of $172,070.91 pursuant to Exhibit A plus pre-judgment interest after default on March 29, 2021 at the state statutory rate of 4.25% per annum, plus attorneys’ fees and expenses as may be awarded by the Court. COUNT V GUARANTY(IES) 20. Plaintiff re-alleges and incorporates each and every allegation as contained in Paragraphs 1 through 3 herein. 21. On or about March 25, 2019, LEONEL TORRES (“Guarantor”) executed a Continuing Guaranty (“Guaranty”) whereby he personally guaranteed in favor of FC Marketplace, LLC the loan made by FC Marketplace, LLC to LEONEL TORRES, DDS, P.A., such that Guarantor was obligated to pay the remaining default principal balance plus pre- judgment interest after default on March 29, 2021 at the state statutory rate of 4.25% per annum, plus attorneys’ fees and expenses, and any other expenditures Plaintiff is entitled to recoup pursuant to the Agreement should LEONEL TORRES, DDS, P.A. fail to pay any amounts due and owing. 22. LEONEL TORRES, DDS, P.A. has failed to make one or more of the required monthly payments, constituting an Event of Default under the Agreement. Plaintiff made numerous demands upon LEONEL TORRES, DDS, P.A. for the past due payments under the Agreement, but LEONEL TORRES, DDS, P.A. failed and refused to pay the required amounts or any part thereof. Pursuant to the Agreement, Plaintiff has retained Nathan A. Schwartz, P.A. and is obligated to pay its counsel a reasonable fee. 23. Plaintiff declared the loan to be in default on March 29, 2021. Plaintiff has also accelerated the maturity of the loan in accordance with the terms of the Agreement, thereby declaring the entire indebtedness immediately due and payable. 24, Plaintiff has complied with all conditions precedent under the Agreement and Guaranty(ies). WHEREFORE, LEONEL TORRES , DDS, P.A. and LEONEL TORRES are liable to FC Marketplace, LLC in the amount of $172,070.91 pursuant to Exhibit A plus pre-judgment interest after default on March 29, 2021 at the state statutory rate of 4.25% per annum, plus attorneys’ fees and expenses as may be awarded by the Court. Nathan A. Schwartz, P.A. Counsel for Plaintiff 5255 North Federal Highway Suite 305 Boca Raton, Florida 33487 Telephone (561) 347-8376 E-mail: attyschwartz@yahoo.com servicenas@yahoo.com By:__/s/ Nathan A. Schwartz Nathan A. Schwartz FL Bar No. 511528 Funding Circle Page No. 1 Payment History 05/05/2021 09:46:21 ‘Account Name: LEONEL TORRESS, DDS P.A. Loan iD: 503026768 Address: 4000 KEVSTIN DR Note/Maturity Date: 03/27/2024 City/State!Zip: KISSIMMEE FL 34744-6800 Type: Term Tax ID #: Amount Financed: $200,000.00 Collateral Type: ACCOUNT HISTORY Date Effective Amount Amount Amount Amount Amount Principal Received Date Received Applied to Applied to Applied to Applied to Balance After Fees Interest Principal Suspense ‘Transaction 03/30/2019 03/27/2019 30.00 $0.00 $0.00 $0.00 $0.00 $200,000.00 04/15/2019 04/09/2019 $109.44 $0.00 $0.00 $0.00 $0.00 $200,000.00 04/15/2019 04/09/2019 $0.00 $0.00 $0.00 $0.00 $0.00 $200,000.00 04/27/2019 04/27/2019 $5,265.45 $0.00 $3,283.33 $1,982.12 $0.00 $198,017.88 05/16/2019 04/27/2019 -$109.44 $0.00 -$109.44 $0.00 $0.00 $198,017.88 05/16/2019 04/27/2019 $109.44 $0.00 $0.00 $0.00 $0.00 $198,017.88 05/16/2019 04/27/2019 $0.00 $0.00 $108.44 $0.00 $0.00 $198,017.88 08/16/2019 04/27/2019 $0.00 $0.00 $0.00 $0.00 $0.00 $198,017.88 08/27/2019 05/27/2019 $5,265.45 $0.00 $3,250.79 $2,014.66 $0.00 $196,003.22 06/27/2019 06/27/2019 $5,265.45 $0.00 $3,217.72 $2,047.73 $0.00 $193,955.49 07/27/2019 07/27/2019 $5,265.45 $0.00 $3,184.10 $2,081.35 $0.00 $191,874.14 08/27/2019 08/27/2019 $5,265.45 $0.00 $3,149.93 $2,115.52 $0.00 $189,758.62 09/27/2019 09/27/2019 $5,265.45 $0.00 $3,115.20 $2,160.25 $0.00 $187,608.37 10/27/2019 10/27/2019 $5,265.45 $0.00 $3,079.90 $2,185.55 $0.00 $185,422.82 112712019 11/27/2019 $5,265.45 $0.00 $3,044.02 $2,221.43 $0.00 $183,201.39 12/27/2019 12/27/2019 $5,265.45 $0.00 $3,007.56 $2,257.89 $0.00 $180,943.50 01/27/2020 01/27/2020 $5,265.45 $0.00 $2,970.49 $2,204.96 $0.00 $178,848.54 02/27/2020 02/27/2020 $5,265.45, $0.00 $2,932.81 $2,332.64 $0.00 $176,315.90 04/01/2020 03/31/2020 $1,000.00 $0.00 $1,000.00 $0.00 $0.00 $176,315.90 05/19/2020 05/18/2020 $1,500.00 $0.00 $1,500.00 $0.00 $0.00 $176,315.90 06/01/2020 05/29/2020 $7,000.00 $0.00 $1,000.00 $0.00 $0.00 $176,315.90 06/10/2020, 96/09/2020 $2,000.00 $0.00 $2,000.00 $0.00 $0.00 $176,315.90 07/06/2020 07/02/2020 $2,000.00 $0.00 $2,000,00 $0.00 $0.00 $176,315.90 07/15/2020 07/14/2020 $4,000.00 $0.00 $4,000.00 $0.00 $0.00 $176,315.90 07/17/2020 07/16/2020 $2,000.00 $0.00 $1,997.77 $2.23 $0.00 $176,313.67 08/17/2020 08/14/2020 $2,500.00 $0.00 $2,500.00 $0.00 $0.00 $176,313.67 09/17/2020 09/16/2020 $2,000.00 $0.00 $2,000.00 $0.00 $0.00 $176,313.67 09/18/2020 09/17/2020 $2,000.00 $0.00 $1,330.07 $669.93 $0.00 $175,643.74 10/28/2020 10/27/2020 $2,000.00 $0.00 $2,000.00 $0.00 $0.00 $175,643.74 11/04/2020 1703/2020 $2,000.00 $0.00 $2,000.00 $0.00 $0.00 $175,643.74 11/23/2020 14/20/2020 $2,000.00 $0.00 $2,000.00 $0.00 $0.00 $175,643.74 1201/2020 14/30/2020 $2,000.00 $0.00 $985.47 $1,014.53 $0.00 $174,629.21 12/23/2020 12/22/2020 $2,000.00 $0.00 $2,000.00 $0.00 $0.00 $174,629.21 1/19/2021 01/19/2021 $5,265.45 $0.00 $2.707.15 $2,558.30 $0.00 $172,070.91 [ interest Paid to Date: $65,256.31 Principal Paid to Date: $27,929.09 Exhibit A DocuSign Envelope ID: A476F5C7-FE49-42DA-BF 24-256F6F 29B7FD & 3PY ve Copy of thi ece yerandose FC ID No.: 24ebf572-1ceb-4d33-ae47-e95cf2010862 @@ Funding BP @Circle Lender: Borrower: FC MARKETPLACE, LLC LEONEL TORRESS, DDS P.A. San Francisco, CA 1000 kevstin drive . kissimmee, FL 34744 BUSINESS LOAN AND SECURITY AGREEMENT THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION — SEE SECTION 12 This BUSINESS LOAN AND SECURITY AGREEMENT (this “Agreement” is entered into as of the last:date written below (the “Effective Date”) between Borrower(s) named above (individually and, if more than one, collectively, the “Borrower") and FC Marketplace, LLC, a Delaware limited liability company, with its principal place of business at 747 Front Street, 4! Floor, San Francisco, California 94111 (‘Lender’). Borrower and Lender may be referred: to herein each individually as a “Party” or collectively as the “Parties.” 41 THE LOAN. (a) Loan Terms. Subject to the terms of this Agreement and the other Loan Documents (as defined in Section 1(b)), Borrower may receive a commercial loan or other credit arrangement (the “Loan”) from Lender. The Loan will be evidenced by a Commercial Promissory Note, in form and substance satisfactory to Lender, to be executed and delivered to Lender concurrently with the execution and delivery of this Agreement (the “Note”), and will bear interest and be paid in accordance with the payment terms set forth in the Note. (b) Loan Documents. Each and every term, condition, representation, warranty, covenant, promise and obligation set forth in this Agreement shall apply fully to.each Loan Document. “Loan Documents” refer to this Agreement, the Note, any Continuing Guaranty, Authorization, and any other document executed or delivered in connection with or otherwise relating to this Agreement or any Indebtedness (as defined in Section 1(c)). Each Loan Document is hereby incorporated into this Agreement by this feference as though fully set forth herein. (c) ‘Intent and Scope of this Agreement. Borrower understands and agrees that this Agreement shall apply to all credit extended under this: Agreement or any other Loan Document at any time, including the granting, renewing, or extending of any such credit. “Indebtedness” means all indebtedness evidenced by this Agreement and the other Loan Documents, including all principal and interest together with any costs incurred in connection with protecting or enforcing the security interest created by this Agreement and the other Loan Documents and all other indebtedness and costs and expenses for which Borrower is responsible under this Agreement or any other Loan Document. (a) Definitions. (i) All capitalized words and terms shall have the meanings set forth in this Agreement and the other Loan Documents. (ii) Capitalized words and terms not otherwise defined in this Agreement and the other Loan Documents shall have the meanings attributed to such terms in the Uniform Commercial Code as in effect as on the Effective Date in the State of California or, if Borrower is located in the State of South Dakota, in South Dakota (the "UCC’) or other applicable law. (iii) Unless specifically stated to the contrary, all references to Lender shall include the Lender's registered successors and assigns or any authorized agent thereof. wi Eyhibt 8 Our Mission: To Build a Better Financial World DocuSign Envelope ID: A476F5C7-FE49-42DA-BF24-256F6F 29B7FD iS 1S A COPY ve Copy of this record t war. docus FCID No.: 24ebf572-1ceb-4d33-ae47-e95cf2010862 @@ Funding @ @ Circle (iv) Uniess specifically stated to the contrary, all references to dollar amounts shall mean amounts in jawful money of the United States of America. Accounting words and terms not otherwise defined in this Agreement and the other Loan Documents shall have the meanings assigned to them in accordance with generally accepted accounting principles (“GAAP”) as in effect on the Effective Date (v) As used in this Agreement, all references to the masculine gender shall include the feminine gender (and vice versa), all references to “include’ includes” or “including” shall be deemed to be followed by the words “without limitation,” and references to any law or regulation refer to that law or regulation as amended from time to time and inciude any successor law or regulation. Words and terms used in the singular shall include the plural, and the plural shall include the singular, as the context may require. 2 TERM. This Agreement shall be effective as of the Effective Date and shall continue in full force and effect until such time as all Indebtedness has been paid in full, including principal, interest and any other amounts required to be paid by Borrower under the Note or any other Loan Document, or until such time as the Parties may agree in writing to terminate this Agreement. The Note will not be effective until the date upon which Lender receives and accepts the Note and disburses the Loan proceeds (the “Closing Date”). Borrower waives any statute of limitations applicable to this Agreement to the fullest extent permissible by law. A Loan repayment schedule shall be available to Borrower by written request to Lender-at any reasonable time and from time to time upon reasonable prior notice. 3 GRANT OF SECURITY INTEREST.' (a) Grant of Security Interest. For valuable consideration, the adequacy and receipt of which is hereby acknowledged Borrower grants to Lender, as collateral security for the payment and performance in full of all Indebtedness, a lien on and security interest in and to all of the right, title and interest of Borrower. in, to and under the following property, wherever located, and whether now existing or hereafter arising or acquired from time to time (collectively, the “Collateral"): (i) all Accounts, (ii) all Equipment, Gaads, Inventory and Fixtures; (ili) ail Documents, Instruments and Chattel Paper; (iv) li Letters of Credit and Letter of Credit Rights. (v) all Invegtment Property: Avi) all Patents, Copyrights, Trademarks and Trade Secrets (in each case, as defined below), and all license and distribution agreements with, and covenants not to sue, any other party with respect to any Patents, Trademarks, Copyrights or Trade Secrets or any other patent, trademark, copyright or trade secret, whether Borrower is a licensor or licensee, distributor or distributee under any such license or distribution agreement, together with any and all (A) renewals extensions, supplements and continuations thereof, (B) income, fees, royalties, damages, claims and payments now and hereafter due and/or payable thereunder and with respect thereto, including damages and payments for past, present or future infringements or violations thereof, (C) rights to sue for past, present and future infringements or violations thereof, and (D) other rights to use, exploit or practice any or all of the Patents, Trademarks, Copyrights or Trade Secrets or any other patent, trademark, copyright or trade secret and all other industrial, intangible and intellectual property of any type, including mask works and industrial designs. (A) “Patents” means all patenis issued or assigned to, and all patent applications and registrations made by, Borrower (whether issued, established or registered or recorded in the United States or any other country or any political subdivision thereof) and all tangible embodiments of the foregoing, together with any and all (1) rights and privileges arising under applicable law and international treaties and conventions with respect to nent tenet ‘ If Borrower is a resident of Illinois or Ohio, please refer to Section 16 for additional information ~ om Our Mission: To Build a Better Financial World fs1S DocuSign Envelope ID: A476F5C7-FE49-42DA-BF24-256F6F29B7FD y OF thi wi ah FC ID No.: 24ebf572-1ceb-4d33-ae47-e95cf2010862 44 Funding BP @ Circle Borrower's use of any patents, (2) inventions and improvements described and claimed therein, (3) reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof and amendments thereto, (4) income, fees, royalties, damages, claims and payments now or hereafter due and/or payable thereunder and with respect thereto, including damages and payments for past, present or future infringements thereof, (5) rights corresponding thereto throughout the world and (6) rights to sue for past, present or future infringements thereof, (B) “Copyrights” means all copyrights (whether statutory or common law, whether established or registered in the United States or any other country or any political subdivision thereof, whether registered or unregistered and whether published or unpublished), all tangible embodiments of the foregoing and all copyright registrations and applications made by Borrower, in each case, whether now owned or hereafter created or acquired by or assigned to Borrower, together with any and all (1) rights and privileges arising under applicable law and international treaties and conventions with respect to Borrower's use of such copyrights, (2) reissues,.renewals, continuations and extensions thereof and amendments thereto, (3) income, fees, royalties, damages, claims and payments now or hereafter due and/or payable with respect thereto, including damages and.payments for past, present or future infringements thereof, (4) rights corresponding thereto throughout the world and (5) rights to sue for past, present or future infringements thereof (C) “Trademarks” means, other than United States intent-to-use trademark applications to the extent that and solely during the period in which the grant of a security interest therein would impair, under federal law, the registrability of such applications or the validity or enforceability of registrations issuing from such applications, all trademarks (including service marks), slogans, logos, symbols, certification marks, collective marks, trade dress, uniform resource locators (URL's), domain names, corporate names and trade names, whether statutory or common law, whether registered or unregistered and whether established or registered in the United States or any other country or any political subdivision thereof that are owned by or assigned to Borrower, all registrations and applications for the foregoing and all tangible embodiments of the foregoing, together with, in each case, the goodwill symbolized thereby and any and all (1) rights and privileges arising under applicable law and international treaties and conventions with respect to Borrower's use of any trademarks, (2) reissues, continuations, extensions and renewals thereof and amendments thereto, (3) income, fees, royalties, damages and payments now and hereafter due and/or payable thereunder and with respect thereto, including damages, claims and payments for past, present or future infringements thereof, (4) rights corresponding thereto throughout the world and (5) rights to sue for past, present and future infringements thereof; and (D) ‘Trade Secrets”. means all know-how, trade secrets, manufacturing and production processes and techniques, inventions, research and development information, technical, marketing, financial and business data and databases, pricing and cost information, business and marketing plans, customer and supplier lists and information, all other confidential and proprietary information and all tangible embodiments of the foregoing, together with any and all (1) rights and privileges arising under applicable law and international treaties and conventions with respect to such trade secrets, (2) income, fees, royalties, damages, claims and payments now or hereafter due and/or payable with respect thereto including damages and payments for past, present or future misappropriations thereof, (3) rights corresponding thereto throughout the world and (4) rights to sue for past, present or future misappropriations thereof. (vii) all Commercial Tort Claims; (vii all General Intangibles; (ix) all money and all Deposit Accounts; (x) all Supporting Obligations (xi) all books and records, customer lists, credit files, computer files, programs, printouts and other computer materials and records relating to the Collateral and any General Intangibles at any time evidencing or relating to any of the foregoing; Our Mission: To Build a Better Financial World HIS 1S A COPY DocuSign Envelope ID: A476F5C7-FE49-42DA-BF24-256F6F 29B7FD Be s held 4 2 ery jocnsig) et FC ID No.: 24ebf572-1ceb-4d33-ae47-e95cf2010862 @@ Fundin Circle (xii) all motor vehicles covered by a certificate of title law of any state; and (xiii) to the extent not covered by clauses (i) through (xii) of this Section 3(a), all other assets, personal property and rights of Borrower, whether tangible or intangible, all Proceeds and products of each of the foregoing and all accessions to, substitutions and replacements for, and rents, profits and products of, each of the foregoing and any and all Proceeds of any insurance, indemnity, warranty or guaranty payable to Borrower from time to time with respect to any of the foregoing (xiv) Notwithstanding anything to the contrary contained in clauses (i) through (xiii) above, the security interest created by this Agreement shall not extend to, and the term "Collateral" shall not include any Excluded Property. “Excluded Property” shail mean any lease, license or other agreement or contract or any property subject to a purchase money security interest or similar arrangement, in each case permitted to be incurred under this Agreement, to the extent that a grant of a security interest or lien therein would require a consent not obtained or violate or invalidate such lease, license or agreement or contract or purchase money arrangement or similar arrangement or create a right of termination in favor of any other party thereto (other than Borrower), in each case after giving effect to the applicable anti-assignment provisions of the UCC. and other applicable law and other than Proceeds and receivables thereof, the assignment of which is expressly deemed effective under the UCC or other applicable law notwithstanding such prohibition or any asset or property to the extent that the grant of a security interest is prohibited by applicable law, rule or regulation or requires a consent not obtained of any governmentai authority pursuant to such applicable law, rule or regulation, in each case after giving effect to the applicable anti-assignment provisions of the UCC; provided that if any Excluded Property would have otherwise constituted Collateral, when such property shall cease to be Excluded Property, such property shail be geemed at all times from and after the date hereof to constitute Collateral (b) Location of Collateral. Except in the ordinary course of Borrower's business, Borrower agrees to keep all Collateral (or to the extent any Collateral consists of intangible property such as Accounts or General Intangibles, the records concerning such Collateral) at Borrower's address shown above or at such other existing and future locations as are approved by Lender in writing. Upon request by Lender at any time or from time to time, Borrower will promptly deliver to Lender, in form satisfactory thereto, a schedule of real properties and Collateral locations relating to Borrower and Borrower's operations, including without limitation the following: (i) all real property Borrower owns or is purchasing; (ii) all real property Borrower is renting or leasing; (iii) all storage facilities Borrower owns, rents, leases or uses; and (iv) all other properties where Collateral is or may be located (c) Repairs and Maintenance. Borrower agrees to keep and maintain, and to cause others to keep and maintain, all Collateral in good order, repair and condition at all times while this Agreement or any other Loan Document remains in effect. Borrower further agrees to pay when due all claims for work done on, or services rendered or material furnished in connection with Collateral so that no lien or encumbrance may ever attach to or be filed against Collateral, except as permitted under this Agreement. 4. CONDITIONS TO FUNDING. (a) Conditions Precedent. Lender's obligation to make the Loan under this Agreement and the other Loan Documents shall be subject to the fulfillment to Lender's satisfaction of all of the conditions set forth in this Agreement and the other Loan Documents, including the following specific conditions precedent @) Closing Documents. Jocun Borrower will have provided, and Lender will have accepted, in form and substance satisfactory to Lender, all of the “Closing Documents" set forth in the loan packet (the "Loan Packet") delivered by Lender to Borrower and which included proposed business loan details, a list of closing documents required to be submitted by Borrower, and copies of this Agreement and the other Loan Documents. (ii) Agreement. Borrower will have delivered to Lender this Agreement, duly executed by Borrower (iii) Note. Borrower will have delivered to Lender, and Lender will have accepted, the Note, duly executed by Borrower. oo Our Mission: To Build a Better Financial World THIS COPY DocuSign Envelope 1D: A476F5C7-FE49-42DA-BF24-256F6F29B7FD spy oft ti ecord is held at www.dor wot FC ID No.: 24ebf572-1ceb-4d33-ae47-e95cf2010862 @@ Fundin BE Circle (iv) Guaranties. Borrower will have provided to Lender executed guaranties of the Loan in favor of Lender, duly executed by each Guarantor (as defined below), on Lender’s forms, and in the amount and under the terms set forth in those guaranties. (v) Borrower's Authorization, Borrower will have delivered in form and substance satisfactory to Lender properly certified resolutions, duly authorizing the execution and delivery of this Agreement and the other Loan Documents and other resolutions, authorizations, documents and instruments as Lender may require. (vi) Other Loan Documents. Borrower will have delivered to Lender all Loan Documents for the Loan as Lender shail deem necessary, all in form and substance satisfactory to Lender. (vii) Information Verification. Lender has verified to its satisfaction any information submitted by Borrower during the process of applying for the Loan, including requiring Borrower to produce appropriate documentation or other proof, and/or conducting verification through a third party and/or credit reporting agencies, which Borrower agrees Lender has the right to do. (viii) Payment of Fees and Expenses. Borrower will have paid to Lender ail fees, charges any other jerbenses which are then due and payable as specified in this Agreement and the other Loan Documents. (ix) epresentations and Warranties. The representations and warranties set forth ‘in i this ‘Auieement and the other Loan Doce are true and correct. (x) No Event of Default. There shall not exist any Event of Default (as defined in Section 8) under this Agreement or any other Loan Document. Notwithstanding the foregoing, Borrower's failure to meet any of the conditions precedent in this Section 4(a) will not provide any basis for Borrower to contest the enforceability of this Agreement or any other Loan Document. (b) Cessation of Lender’s Commitments. If Lender has made any commitment to make any disbursement of Loan funds, whether under this Agreement, any other Loan Document, or any other agreement, Lender will have no obligation to make such disbursement if: (i) Borrower or any guarantor of any of the Indebtedness (each, a “Guarantor” is in default under the terms of this Agreement or any other Loan Document; (ii) any Guarantor, if a natural person, dies or becomes incompetent, or Borrower or any Guarantor dies, becomes insolvent, files a petition in bankruptcy or similar proceedings, or is adjudged as bankrupt; (iii) there occurs a material adverse change in Borrower's business or financial condition, in the financial.condition of any Guarantor, or in the value of any Collateral; or (iv) any Guarantor seeks, claims or otherwise attempts to limit, modify or revoke such Guarantor's guaranty of any of the Indebtedness. 5. BORROWER’S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Lender, as of the Effective Date, the Closing Date, the date of any renewal, extension or modification of the Loan and at all times the Loan exists, as follows: (a) Organization. Borrower is, and at all times shall be, duly organized, validly existing, and in good standing under the laws of the state in which it was organized. Borrower is duly authorized to transact business in all other states in which Borrower is doing business, having obtained all necessary filings, governmental licenses and approvals for each state in which Borrower is doing business. Specifically, Borrower is, and at all times shall be, duly qualified as a foreign corporation in all states in which the failure to so qualify would have a material adverse effect on its business or financial condition Borrower has the full power and authority to transact the business in which it is currently engaged or proposes to engage and enter into and perform the Loan Documents. Unless Borrower has designated otherwise in writing, Borrower's principal Office is the office at which Borrower keeps its books and records, including its records concerning any Collateral, and is the address shown above. Borrower shall do all things necessary to preserve and to keep in full force and effect its existence, tights and privileges, and shall comply with all regulations, rules, ordinances, statutes, orders and decrees of any governmental or quasi-governmental authority or court applicable to Borrower and Borrower's business activities. In the event that Borrower elects to change its form of business entity, Borrower will obtain advance written approval from Lender to do so, and will comply with the provisions of Section 6(d) Our Mission: To Build a Better Financial World DocuSign Envelope ID: A476F5C7-FE49-42DA-BF24-256F6F29B7FD THIS A COPY The oyitative Copy ofthi is held at vee ch sigm.nat FC 1D No.: 24ebf572-1ceb-4d33-ae47-e95cf2010862 44 Funding PU Circle (b) Fictitious Business Name. Borrower has filed or recorded all documents or filings required by law relating to all fictitious business names used by Borrower. The fictitious business names previously disclosed in writing to Lender constitute a complete list of all fictitious business names under which Borrower does business. (c) Authorization; No Violation. Borrower's execution, delivery and performance of this Agreement and the other Loan Documents has been duly authorized by Borrower and does not (i) conflict with, result in a violation of, or constitute a default under any provision of Borrower's articles of incorporation or organization or bylaws, any agreement or other instrument binding upon Borrower, or any law, governmental regulation, court decree, or order applicable to Borrower; (ii) require the consent or approval of any other person or entity; or (iii) create or impose any lien or security interest of any asset of Borrower except that in favor of Lender created by this Agreement and the other Loan Documents. (d) Financial Information. Each of Borrower's financial statements, including any personal financial statements and employment information supplied to Lender, truly and completely disclose Borrower's financial condition as of the date of such statement, and there has been no material adverse change in Borrower's financial condition subsequent to the date of the most recent financial statement supplied to Lender. Borrower has no material contingent obligations except as disclosed in the financial statements delivered by Borrower to Lender, (e) Legal and Binding Effect. This Agreement and the other Loan Documents: constitute ‘Bet, valid and binding obligations of Borrower enforceable against Borrower in accordance with their terms, (f) Title. Borrower holds good and marketable title to all Collateral, free and clear of all liens and encumbrances except for liens created by this Agreement and the other Loan Documents or previously disclosed to Lender in writing and consented to by Lender in writing. No financing statement covering any Collateral is on file in any public office other than those which reflect the security interest created by this Agreement and the other Loan Documents, or to which Lender has specifically consented in writing. Borrower shall defend Lender's rights in any Collateral against the claims and demands of all other persons. The Loan Documents create a valid security interest in favor of Lender in the Collateral. (a) Enforceability of Collateral. To the extent any Collateral consists of Accounts, Chattel Paper, or General Intangibles, such Collateral is enforceable in accordance with its terms, is genuine, and fully complies with all applicable laws and regulations concerning form, content and manner of preparation and execution, and all persons appearing to be obligated on such Collateral have authority and capacity to contract and are in fact obligated as they appear to be on such Collateral. At the time any Account becomes subject to a security interest in favor of Lender, the Account shall be a good and valid Account representing an undisputed, bona fide indebtedness incurred by the Account Debtor, for merchandise held subject to delivery instructions or previously shipped or delivered pursuant to a contract of sale, or for services previously'performed by Borrower with or for the Account Debtor. So long as this Agreement or any other Loan Document remains in effect, Borrower shall not, without the prior written consent of Lender, compromise, settle, adjust, or extend payment under or with regard to any such Accounts. There shall be no setoffs or counterclaims against any Collateral, and no agreement shall have been made under which any deductions or discounts may be claimed concerning Collateral except those disclosed to Lender in writing. (h) Litigation and Claims. No litigation, claim, investigation, administrative proceeding or similar action (including those for unpaid taxes) against Borrower is pending or threatened, and no other event has occurred which may materially adversely affect Borrower's financial condition or properties, other than litigation, claims or other events, if any, that have been disclosed to and acknowledged by Lender in writing. (i) Taxes. To the best of Borrower's knowledge, (i) all of Borrower's tax returns and reports that are or were required to be filed, have been filed and (ii) all taxes, assessments and other governmental charges have been paid in full, except those currently being or to be contested by Borrower in good faith in the ordinary course of business and for which adequate reserves have been provided. ) Lien Priority. Unless otherwise previously disclosed by Borrower in writing and agreed to by Lender in writing, Borrower has not entered into or granted any security agreements, or permitted the filing or attachment of any security interests on or affecting any Collateral, Our Mission: To Build a Better Financial World DocuSign Envelope iD: A476F5C7-FE49-42DA-BF 24-256F6F29B7FD TH sf thy ist WE. O FC ID No.: 2aeb/572- Aceb-4d33-ae47-e95cf2010862 4@ Funding B UCircle (k) BUSINESS LOAN. THE LOAN CONSTITUTES A BUSINESS LOAN FOR BUSINESS AND COMMERCIAL PURPOSES AND IS NOT FOR PERSONAL, FAMILY, OR HOUSEHOLD OR ANY OTHER CONSUMER PURPOSES. (1) Anti-Terrorism Laws, Money Laundering and Sanctions Neither Borrower, including each of its officers. directors, and agents, and Guarantor(s): (i) has (A) violated any Anti-Terrorism Laws (as defined below) or (B) engaged in any transaction, investment, undertaking or activity that conceals the identity, source, or destination of the proceeds from any category of prohibited offenses designated by the Organization for Economic Co-operation and Development's Financial Action Task Force on Money Laundering: (ii) is, or is owned or controlled by persons that are: (A) the subject of any Sanctions (as defined below), or (B located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions; or (iii) conducts any business or engages in making or receiving any contribution of goods, services, or money to or for the benefit of any person, or in any country or territory that is the subject of any Sanctions, (B) deals in, or otherwise engages in any transaction related to any property or interests in property blocked by.any Anti-Terrorism Law, or (C) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding any of the prohibitions set forth in any Anti-Terrorism Law. As used herein. {i-Terrorism laws” mean any law related to money laundering or financing terrorism including the United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct.Terrorism Act of 2001, the Currency and Foreign Transactions Reporting Act, the Trading: with the Enemy Act, and’ Executive Order 13224 and “Sanctions” means sanctions administered or enforced by the U.S. Department of the ‘Treasury's Office of Foreign Assets Control, U.S. Department of State, or other relevant sanctions authority. 6. BORROWER'S AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Lender that, so long