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  • CAN CAPITAL ASSET SERVICING INC vs. SIGNATURE DECKS AND FENCES INCCONTRACTS AND INDEBTEDNESS document preview
  • CAN CAPITAL ASSET SERVICING INC vs. SIGNATURE DECKS AND FENCES INCCONTRACTS AND INDEBTEDNESS document preview
  • CAN CAPITAL ASSET SERVICING INC vs. SIGNATURE DECKS AND FENCES INCCONTRACTS AND INDEBTEDNESS document preview
  • CAN CAPITAL ASSET SERVICING INC vs. SIGNATURE DECKS AND FENCES INCCONTRACTS AND INDEBTEDNESS document preview
  • CAN CAPITAL ASSET SERVICING INC vs. SIGNATURE DECKS AND FENCES INCCONTRACTS AND INDEBTEDNESS document preview
  • CAN CAPITAL ASSET SERVICING INC vs. SIGNATURE DECKS AND FENCES INCCONTRACTS AND INDEBTEDNESS document preview
  • CAN CAPITAL ASSET SERVICING INC vs. SIGNATURE DECKS AND FENCES INCCONTRACTS AND INDEBTEDNESS document preview
  • CAN CAPITAL ASSET SERVICING INC vs. SIGNATURE DECKS AND FENCES INCCONTRACTS AND INDEBTEDNESS document preview
						
                                

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Filing # 131681336 E-Filed 07/29/2021 03:17:25 PM IN THE CIRCUIT COURT OF THE 14TH JUDICIAL CIRCUIT IN AND FOR BAY COUNTY, FLORIDA CAN CAPITAL ASSET SERVICING, INC., a Massachusetts corporation, as successor in CASE NO. 21000949CA interest to WebBank, Plaintiff, VS. SIGNATURE DECKS AND FENCES, INC., a Florida corporation, d/b/a SIGNATURE DECKS & FENCES.COM and DAVID ELLIOTT a/k/a DAVID RICHARD ELLIOTT, Defendants. / COMPLAINT COMES NOW Plaintiff, Can Capital Asset Servicing, Inc., as successor in interest to WebBank, by and through its undersigned attorney, and hereby states the following as its Complaint: PARTIES AND JURISDICTION 1. Can Capital Asset Servicing, Inc., a Massachusetts corporation (“Can Capital”), is successor in interest to WebBank, (as explained herein). 2. Defendant, Signature Decks and Fences, Inc. d/b/a Signature Decks & Fences.com (“Signature”), is a Florida corporation with its principal place of business in Panama City, Bay County, Florida. 3. Defendant, David Elliott a/k/a David Richard Elliott (“Elliott” or “Guarantor”), is an individual sui juris, who resides in Riverview, Hillsborough County, Florida and at all relevant times mentioned herein was and is the principal officer of Signature Decks and Fences, Inc. d/b/a Signature Decks & Fences.com (Signature and Elliott are referred to herein collectively as “Defendants.”).4, At all relevant times mentioned herein, Defendant, Elliott, operated its business in Panama City, Bay County, Florida. GENERAL ALLEGATIONS 5. On or about September 26, 2019, Defendant, Signature, entered into a Business Loan Agreement with WebBank (“Agreement”), pursuant to which WebBank loaned the principal amount of $75,000.00 (“Principal Amount”) to Defendant, Signature, in exchange for $95,250.00 (“Repayment Amount”), a true and correct copy of which is attached hereto as Exhibit A. The Maturity Date of the Agreement was October 1, 2020. 6. On or about September 27, 2019, in accordance with the Agreement, WebBank funded and paid Defendant, Signature, the Principal Amount. 7. Can Capital Asset Servicing, Inc. became the successor in interest to WebBank having purchased the Agreement from WebBank shortly after execution and funding thereof, but prior to the filing of this Complaint. 8. Pursuant to paragraph 16 of the Agreement, Utah law (and not Florida law) governs the Agreement and any transactions it contemplates, the construction of its terms, and the interpretation performance and enforcement of the rights and duties of Can Capital and Defendants. 9. Defendant, Signature, agreed: (a) Defendant, Signature, will use the Principal Amount (and the goods or services bought with the Principal Amount) solely for business purposes and not for consumer, personal, family, or household purposes; (b) to not to use the funding for the purpose to fund dividends or distributions to shareholders, partners, members, or other owners of an equity interest in the business; and (c) The loan documents by the Agreement was not a “Consumer Transaction” as defined in the Uniform Commercial Code (“UCC”).10. Pursuant to the terms and conditions of the Agreement, Defendant, Signature, agreed to pay the Repayment Amount to Can Capital. 11. To effect payment of the Repayment Amount, Defendant, Signature, agreed to authorize WebBank, or its successor, to debit or otherwise withdraw the Weekday Payment Amount of $360.90 per day, as set forth in the Agreement, from an account designated by Defendant, Signature (the “Designated Account”). 12. Can Capital purchased the Agreement from WebBank just after WebBank’s initial funding and became the owner of the Agreement, thereafter making and attempting to make the agreed-upon debits/withdrawals called for under the Agreement. 13. Pursuant to the Agreement with respect to Defendant, Signature’s, business and operations, Defendant, Signature, agreed to: (a) not materially change the nature of its business from the type originally disclosed in connection with this Agreement; (b) not sell or otherwise transfer its business without: (i) Can Capital’s express prior written consent, which Can Capital may withhold in its sole discretion for any reason or no reason and (ii) | The assumption of all of the obligations under the Agreement using documentation reasonably satisfactory to Can Capital, providing such assumption would not release Signature from liability under the Agreement. (c) authorize Can Capital to withdraw from the Designated Account any funds Can Capital was entitled to under the Agreement; (d) not to revoke Can Capital’s authorization to withdraw monies from the Designated Account; 14. Pursuant to the Agreement with respect to the Designated Account, Defendant, Signature, agreed that: (a) the Designated Account is and shall be a business bank account during the Term of the Agreement;(b) (c) @ the Designated Account is not and will not be during the Term of the Agreement an account established primarily for personal, family or household purposes or otherwise an “account” as defined in 15 U.S.C. 1693a and Regulation E; the Designated Account shall have sufficient funds during the Term of the Agreement for all debits and other withdrawals contemplated by the Agreement; and if the Designated Account at any time lacks sufficient funds for any debit of other withdrawal required by the Agreement, Defendant, Signature, agreed to immediately transfer sufficient funds to the Designated Account or to pay Can Capital such funds. 15. Pursuant to the Agreement, Defendant, Signature, agreed that the following constitute “Events of Default” as defined in the Agreement: (a) (b) (c) (d) () @ (g) at any given time during the Term of the Agreement a sum amount equivalent to seven (7) Weekday Payment Amounts has come due but remains unpaid; Signature fails to pay any amount owed to Can Capital under the Agreement (other than Weekday Payment Amounts) within 30 days after Can Capital requests payment in writing; Signature revokes or cancels any authorization for Can Capital to debit or otherwise withdraw from or access the Designated Account; Signature fails to maintain the insurance requested under the Agreement; if any warranty, representation or statement made or furnished to Can Capital by Signature, or any Signing Principal or on Signature’s or any Signing Principal's behalf under this Agreement is or becomes false or misleading in any material respect; if this Agreement ceases to be in full force and effect at any time and for any reason (including failure to create a validly perfected security interest or Lien); Signature: (i) is legally dissolved, is adjudicated insolvent or bankrupt or ceases to pay its debts as they mature, (ii) | makes a general assignment for the benefit of or enter into an arrangement with creditors,(iii) applies for or consents to the appointment of a receiver, trustee or liquidator of it or a substantial part of its property, (iv) takes action to dissolve or terminate its legal existence, or authorizes or files a voluntary petition in bankruptcy or under any similar law, consents to such a petition, or suffers such a petition or proceeding to be instituted against it which remains undismissed for a period of 60 days; or (v) ifn individual, dies or becomes legally incompetent; (h) commencement of foreclosure or forfeiture proceedings, whether by judicial self-help, repossession or any other method, by creditors or by any governmental agency against any Collateral, including a garnishment of any of Signature’s Deposit Accounts; (i) failure to perform or comply with any other term, provision, condition, covenant at contained in this Agreement or any other documentation related to this Agreement; G) Signature defaults under any other agreement with Can Capital, any Assignee or any affiliate of either Can Capital or any Assignee, or under any agreement with any third party material to Signature’s business or providing of real or personal property or the repayment of owed; (k) Can Capital reasonably deems themselves insecure with respect to Signature’s performance hereunder or in Can Capital’s rights with respect to the Collateral; and ( any of the preceding events occurs with respect to any guarantor, endorser, surety, or accommodation party of any of Signature’s obligations under the Agreement. 16. Defendant, Elliott, executed a personal guaranty (the “Personal Guaranty”) pursuant to which Elliott personally guaranteed, among other things, Defendant, Signature’s, performance of the terms and conditions of the Agreement and payment of the Repayment Amount due under the Agreement. 17. On or about January 17, 2020, Defendant, Signature, defaulted on the Agreement for, among other things, failure to pay Can Capital in accordance with the terms of the Agreement (see payment history attached hereto as Exhibit B):(a) A sum equivalent to seven (7) weekday payments became due by Defendant, Signature, but remains unpaid; (b) revoking or canceling any of the authorizations to debit or otherwise withdraw funds or access the Designated Account or any other account described in the Agreement. (c) failure to perform or comply with any other term, provision, condition, covenant at contained in this Agreement or any other documentation related to this Agreement; (d) | Can Capital reasonably deemed themselves insecure with respect to Defendant, Signature’s, performance hereunder or in Can Capital’s rights with respect to the Collateral; and 18. As of January 17, 2020, Defendant, Signature, paid $25,977.60 toward the Repayment Amount of $95,250.00 and, accordingly, Defendant, Signature, is indebted to Plaintiff in the total principal amount of $69,272.40, plus pre-judgment interest at the statutory rate. 19. The Plaintiff made written demand on May 19, 2020 upon the Defendants for payment of said indebtedness of $69,272.40 but Defendants have failed to respond to said demand and failed to pay said sums. 20. Pursuant to paragraph 10.13 of the Agreement, if Plaintiff is deemed the prevailing party by the Court in this action, Defendants are liable for any and all expenses, including collection costs, attorneys’ fees and expenses, expert fees and expenses, and all other expenses which may be incurred associated with a breach of the Agreement and, by this Complaint, Plaintiff gives Defendant, Signature, written notice that Plaintiff intends to enforce that provision of the Agreement. 21. In the event a default is entered by the Court for failure of any Defendant or Defendants to file a response to the Complaint in the time permitted by the Florida Rules of Civil Procedure, $2,500 shall be deemed a reasonable attorneys’ fee incurred by Plaintiffs in this action.22. All conditions precedent to Plaintiff filing this action have been performed, have been waived, or have been excused. COUNT I -- BREACH OF CONTRACT 23. Plaintiff incorporates Paragraphs 1 through 22 inclusive, as though fully set forth herein. 24. By reason of the foregoing, Defendant, Signature, has breached one or more of the Events of Default under the Agreement, causing Can Capital to suffer damages. 25. Plaintiff is entitled to recover damages under the Agreement in an amount equal to the Repayment Amount of $69,272.40, plus pre-judgment interest at the statutory rate. WHEREFORE, Plaintiff prays that Judgment be entered against Defendant, Signature, in the amount of $69,272.40, plus accrued statutory interest at the statutory rate from October 1, 2020, the Maturity Date of the Agreement, plus attorneys’ fees as provided in the Agreement, plus post- judgment interest at the legal statutory rate, and all costs of this action. COUNT II - BREACH OF PERSONAL GUARANTY 26. Plaintiff incorporates Paragraphs 1 through 22, 24 and 25 inclusive, as though fully set forth herein. 27. Defendant, David Elliott a/k/a David Richard Elliott, provided Can Capital with the Personal Guaranty, pursuant to which Defendant, David Elliott a/k/a David Richard Elliott, personally guaranteed, among other things, that Signature would perform pursuant to the terms and conditions of the Agreement. 28. Signature breached one or more of the terms or conditions in the Agreement with Plaintiff, triggering the Personal Guaranty.29. Defendant, David Elliott a/k/a David Richard Elliott, has not revoked the personal guaranty. 30. On or around May 19, 2020, Plaintiff demanded in writing that Defendant, David Elliott a/k/a David Richard Elliott, cure Signature’s breach of the Agreement, but Plaintiff has received no response to said demand. As a result, Defendant, David Elliott a/k/a David Richard Elliott, has breached the Personal Guaranty, causing damages to Plaintiff in the amount of $69,272.40, plus prejudgment interest at the statutory rate. WHEREFORE, Plaintiff prays that Judgment be entered against Defendant, David Elliott a/k/a David Richard Elliott, in the amount of $69,272.40, plus accrued interest at the statutory rate from October 1, 2020, the Maturity Date of the Agreement, plus attorneys’ fees as provided in the Agreement, plus post-judgment interest at the legal rate, and all costs of this action. Respectfully submitted this 29th day of July, 2021. /s/ Kurt E. Thalwitzer KURT E. THALWITZER Florida Bar Number 816299 Mateer & Harbert, P.A. 225 East Robinson Street, Suite 600 Post Office Box 2854 Orlando, Florida 32802-2854 Telephone: (407) 425-9044 Facsimile: (407) 423-2016 Primary: kthalwitzer@mateerharbert.com Secondary: kmeder@mateerharbert.com Attorneys for Plaintiff 4820-1853-8996, v. 1DocuSign Envelope |: Agreement #: Account ID: BUSINESS LOAN AGREEMENT This Business Loan Agreement (this "Agreement’) dated _September 26, 2019 _ is between WebBank (“Lender”) and the borrower listed below ("Borrower"). A. BORROWER INFORMATION Repayment Amount = Principal Amount + Cost-of-Funds (not including Origination Fee! BUSINESS LEGAL NAME D/B/A SIGNATURE DECKS AND FENCES INC. | Signature Decks & Fences. Com FEDERAL TAX ID# STATE OF INCORPORATION / ORGANIZATION 203496314 FL PHYSICAL ADDRESS (BUSINESS LOCATION) CITY STATE ZIP 1025 W 19TH ST APT 18A Panama City FL 32405 MAILING ADDRESS (FOR STATEMENTS) CITY STATE zip 1025 W 19TH ST APT 18A Panama City FL 32405 BUSINESS START DATE (MM/YY) BUSINESS ENTITY TYPE (check one): , Corporation Limited Liability Company 1 Partnership O 09/19/2005 Limited Partnership [_] Limited Liability Partnership [[] Sole Proprietorship [J B. _ SIGNING PRINCIPAL/GUARANTOR INFORMATION NAME BUSINESS TITLE David Elliott President RESIDENTIAL ADDRESS CITY STATE ZIP 11023 Running Pine Drive Riverview FL 33569 Cc. _PAYMENT INFORMATION Principal Amount $75,000.00 Weekday Payment Amount $360.80 We will begin to debit the Weekday Payment Amount from your Cost-of-Funds $20,250.00 Designated Account on the first non-bank holiday weekday immediately following the day that we transfer the Principal Amount to you. The last payment may be less than the above amount depending on the balance. $95,250.00 2.99% of the Principal Amount (excluding ony portion of the Principal Amount being applied to repay an existing loan balance owed to us) Origination Fee Total Number of Payments 264 Calendar Days to Maturity 370 Calculated based on a presumption of no missed payments. D._ CONTACT INFORMATION EMAIL ADDRESS david@signaturefences.com PHONE NUMBER be EXHIBIT A (ie Business Loan Agreement | Rev. 8.19 | Page 1 of 13DocuSign Envelope |: KEY TERMS & CONDITIONS You should read this entire Agreement before signing it, but we want you to be aware of the following terms and conditions: 1. ARBITRATION: Section 19 gives you and us the right to require any dispute to be resolved through BINDING INDIVIDUAL ARBITRATION rather than in court. Individual arbitration means that neither you nor we can assert claims on behalf of a class or in a representative capacity. You can opt out of this provision, without penalty, for a limited time. 2. FEES: Section 5.5 requires you to pay certain fees and charges in addition to the Repayment Amount. These fees and charges include, but are not limited to, the Origination Fee, which is equal to a percentage of the Principal Amount (excluding any portion of the Principal Amount being applied to repay an existing loan balance owed to us or our Assignees) as specified in Table C above, late fees, dishonored payment fees and site visit fees. 3. PREPAYMENT: Section 6 gives you the right to prepay your remaining obligation under this Agreement once 90 days have passed from the Effective Date. If you choose to exercise this right, you may be eligible for a discount of your remaining obligation reduced by an amount that is 30% of the outstanding Cost-of-Funds portion of your loan. 4. CREDIT REPORTS: Among other things, Section 10.11 allows us to pull your credit reports in connection with this loan and to determine your eligibility for other financial products. 5. COLLATERAL: Section 9 grants us a lien on your properties, assets and rights, which we may secure by the filing of a financing statement, and Section 21 restricts what you can do with such Collateral. 6. SIMULTANEOUS FUNDING RESTRICTION: Section 22 restricts your ability to seek certain types of additional financing before you have paid off your obligation to us. 7. TELEPHONE CONTACT: Section 14 allows us to contact you in certain ways and to record our telephone calls with you. 8. BANK HOLIDAYS: Section 5.3 states, among other things, that on the first Weekday after a bank holiday we will debit the Designated Account to make up for the payment(s) missed because of the bank holiday, in addition to the payment otherwise due on that Weekday, which will result in multiple payments debited in a single day on such occasions. PLEASE READ THESE PROVISIONS CAREFULLY. LS WARNING REGARDING THIRD PARTY FEES: Please note, if you worked with a third-party to facilitate this loan, we may directly pay such third-party a referral fee, but we do not permit third parties to charge you fees in connection with the funding of your loan. Please notify CAN Capital, Inc., our Servicer, at 877-500-8282 immediately if any third party has charged you a fee for your loan or otherwise made promises outside the scope of this Agreement. | IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT To help the government fight the funding of terrorism and laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. What this means for you: When you open an account, we will ask for the name, address, date of birth (for any natural person), and other information that will allow us to identify the Signing Principal and your company. We may also ask to see the Signing Principal's driver's license or other identifying documents about the Signing Principal and your company. Capitalized terms not defined below will have the meaning given to such terms above. 1, PARTIES. In this Agreement, the words “you” and “your” refer to Borrower. The words “we”, “us" and “our” refer to Lender and its successors or assigns, including any “Assignee” as defined in Section 11. “Principal” refers to each one of Borrower's owners, shareholders, partners, members, principals, officers, directors and employees. “Signing Principal” refers to the Principal that has executed this Agreement or a Personal Guaranty of this Agreement. 2. EFFECTIVE DATE; TERM. The term of this Agreement (the “Term") begins on the date we accept it at our home office in Utah by signing it or sending you the Principal Amount, whichever is earlier (the "Effective Date”). We may accept this Agreement without signing it by sending you the Principal Amount. You understand and agree that we are not required to send you the Principal Amount until: (a) you have provided us with all documents and fully met all conditions required by this Agreement; and (b) the security interests we are entitled to receive under this Agreement have been perfected. If there is a delay in your receipt of the Principal Amount for these or any other reasons, you agree that there will be no adverse consequence to you or us. If any Weekday Payment Amounts, fees or other charges under Section 5.5 below remain due and unpaid at the end of the Term, then the Term will automatically extend and end only when we have collected the Repayment Amount and all other amounts due under this Agreement. In addition, upon payment to us of the Repayment Amount and all other amounts due under this Agreement, and provided that you have done everything else you are required to do under this Agreement, the Term will end and you will have no further Business Loan Agreement | Rev. 8.19 | Page 2 of 13DocuSign Envelope |: obligations to us under this Agreement except as otherwise stated below. 3.PRINCIPAL AMOUNT; USE OF LOAN PROCEEDS. You represent to us and agree that the Principal Amount will be used only: (a) to buy merchandise, inventory or related goods you will rent or sell to your customers, (b) to buy equipment or other goods for use in your business, (c) for training or other services needed by your business, and/or (d) to make improvements to your business location (but not to buy real estate). REGARDLESS OF ANYTHING ELSE STATED IN THIS AGREEMENT, YOU ACKNOWLEDGE AND AGREE THAT: (A) YOU WILL USE THE PRINCIPAL AMOUNT (AND THE GOODS OR SERVICES YOU BUY WITH THE PRINCIPAL AMOUNT) SOLELY FOR BUSINESS PURPOSES AND NOT FOR CONSUMER, PERSONAL, FAMILY OR HOUSEHOLD PURPOSES; (B) YOU WILL NOT USE THE PRINCIPAL AMOUNT TO FUND DIVIDENDS OR DISTRIBUTIONS TO ANY OF YOUR SHAREHOLDERS, PARTNERS, MEMBERS OR ANY OTHER OWNER OF ANY EQUITY INTEREST IN YOUR BUSINESS OR TO PURCHASE STOCK OR OTHER SECURITIES OF ANY KIND; AND (C) THE LOAN DOCUMENTED BY THIS AGREEMENT IS NOT A “CONSUMER TRANSACTION" AS DEFINED IN THE UNIFORM COMMERCIAL CODE ("UCC"). 4.PROMISE TO PAY. In exchange for us loaning you the Principal Amount, you unconditionally promise to pay us the Repayment Amount and all other amounts this Agreement requires you to pay. You agree to make payments to us in the manner stated in Section 5 of this Agreement. As part of your agreement to repay us without conditions, you waive (both as to the original loan and any renewal, extension, refinancing, modification or consolidation of the loan): (a) protest, demand and presentment: (b) notice of dishonor, protest or suit; (c) all other notices or requirements necessary to hold you liable hereunder, and (d) all rights of exemption under the constitution or laws of any state as to real or personal property. YOU AGREE THAT YOUR OBLIGATIONS UNDER THIS AGREEMENT ARE ABSOLUTE AND UNCONDITIONAL, MAY NOT BE PREPAID EXCEPT AS SPECIFICALLY STATED HEREIN, AND SHALL CONTINUE IN FULL FORCE AND EFFECT REGARDLESS OF ANY CIRCUMSTANCE WHATSOEVER, AND THAT SUCH OBLIGATIONS SHALL NOT BE AFFECTED BY ANY COUNTERCLAIM, SET-OFF, RECOUPMENT, OFFSET, DEFENSE OR OTHER ALLEGED RIGHT AGAINST US. 5. METHOD OF REPAYMENT. 5.1 Designated Account. The “Designated Account" is the account into which we deposit the Principal Amount based on the business bank account information you provide us by way of a voided check or bank notice, or any successor account(s) to such account of which you provide us notice, subject to our approval. You represent, warrant and agree that the Designated Account (i) is and shall be a business bank account during the Term of this Agreement, (ii) is not and will not be during the Term of this Agreement an account established primarily for personal, family or household purposes or otherwise an “account” as defined in 15 U.S.C. 1693a and Regulation E, and (jii) shall have sufficient funds during the Term of this Agreement for all debits and other withdrawals contemplated by this Agreement to be made on our behalf. If the Designated Account at any time lacks sufficient funds for any debit or other withdrawal required by this Agreement to be made on our behalf, you agree to immediately transfer sufficient funds to the Designated Account or pay to us such funds. 5.2 Payment through Weekday ACH Debits. Except as set forth in Section 5.3, you shall pay us the Weekday Payment Amount (set forth under “Payment Information” on page 1, Table © on every Monday through Friday, inclusive (each a "Weekday"), by authorizing and allowing Lender and/or Operator (defined below) to debit or otherwise withdraw the Weekday Payment Amount from the Designated Account on each Weekday. Borrower hereby authorizes and requests Lender and/or each Operator to debit or otherwise withdraw the Weekday Payment Amounts from the Designated Account on each Weekday until we have received the entire Repayment Amount and all amounts due and/or owed under this Agreement, including without limitation each Weekday Payment Amount and all late fees, taxes, non-sufficient funds charges, reimbursements and other amounts due pursuant to this Agreement. Borrower further: (a) authorizes Lender and each Operator to deliver a copy of this Agreement to the Bank as evidence of Borrower's authorization, and (b) agrees that, except to the extent prohibited by applicable law, Borrower's authorizations to Lender and each Operator hereunder may be revoked only with Lender's prior written consent. For purposes of this Agreement, the term “Operator” shall mean any person or entity we designate to debit or otherwise withdraw (via the Automated Clearing House (‘ACH’) system, electronic checks, wires, or otherwise) any amounts from your accounts as authorized or permitted by this Agreement. 5.3 Bank Holidays and Other Exceptions. Lender and/or Operator will debit the Designated Account for Weekday Payment Amounts only on Weekdays on which the Bank is open and able to process ACH transactions. On the Weekday immediately following any Weekday or Weekdays on which the Bank was not open or was not able to process ACH transactions for reasons other than an insufficient Designated Account balance, Lender or Operator will debit the Designated Account for an amount equal to the sum of: (i) the Weekday Payment Amount due on that Weekday, plus (ii) the Weekday Payment Amount(s) due on the preceding Weekday(s) when the Bank was not open or could not process ACH transactions. 5.4 Authorization to Access and Withdraw from Designated Account. You authorize and request Lender and/or Operator to debit or otherwise withdraw (via the ACH system, electronic checks, wires or otherwise) the Weekday Payment Amounts from the Designated Account each Weekday until we have received the entire Repayment Amount and all other amounts you owe to us under this Agreement. You agree that, except to the extent prohibited by applicable law, you will not revoke this authorization and instruction without our prior written consent. In the event a withdrawal fails for non-sufficient Business Loan Agreement | Rev. 8.19 | Page 3 of 13DocuSign Envelope |: funds in your Designated Account, Lender and/or Operator reserve the right to resubmit the ACH payment request, and you hereby authorize us to either reinitiate that debit up to two (2) additional times until the debit is paid, and, to the extent such debit remains unpaid, to add all or a portion of the Weekday Payment Amount associated with the unpaid debit to a debit for a subsequent Weekday Payment Amount. You acknowledge and agree that we and Operator may issue pre-notifications to your Bank with respect to such debits, withdrawals and other transactions. You agree that Operator may rely upon our instructions, without any independent verification, in making the transactions described above. You waive any claim for damages you may have against Operator in connection with actions taken based on our instructions, unless such damages were due to Operator's failure to follow our instructions. You acknowledge and agree that (a) Operator will be acting on our behalf with respect to the Designated Account, (b) Operator may or may not be our affiliate, and (c) we are not responsible and shall not be liable for, and you agree to hold us harmless for, the actions of Operator. You understand and agree that this Agreement allows us to access the Designated Account. Within two business days of any request by us, you shall provide, or cause Operator or the Bank to provide, us with records and/or other information regarding the Designated Account. You hereby authorize and direct the Bank to provide us with all such information. 5.5 Fees. In addition to the Repayment Amount, you agree to pay us the following fees and charges: (a) a one-time, non- refundable Origination Fee in an amount calculated as set forth in the “Key Terms and Conditions” on page 1, Table C; (b) a fee of $30 (or such lesser amount as permitted by applicable law) for each returned, rejected or dishonored payment, ACH debit, or wire transfer withdrawal, it being understood that we have the right to receive such fee for each business day on which we or our designee attempted and were unable to debit or otherwise withdraw from your accounts the amount we were entitled to receive as of such date; (c) the cost of any site visit that confirms a violation of this Agreement, not to exceed $500 for each such visit; (d) a monthly late fee equal to $50.00 if the balance of all Weekday Payment Amount(s) due but unpaid as of the last day of the month exceeds $500.00, with such late fee due and debited on the first day of the following month; (e) a fee of $250 if you block us from deducting the Weekday Payment Amount from your Designated Account, and (f) charges for providing copies and other documentation you request from us (a list of such charges will be made available upon request or online). Borrower hereby authorizes and requests Lender and/or each Operator to withdraw the Origination Fee from the Designated Account on or after the Effective Date. If any fees, charges or other amounts owed under this Agreement are due and unpaid at the end of the loan Term, the Term shall be automatically extended (without further notice to you) and we may continue to withdraw the Weekday Payment Amount (or such lesser amount due) from the Designated Account each Weekday until all amounts due to us under this Agreement have been paid in full. 6. PREPAYMENT. Beginning 90 calendar days after the Effective Date, you may, upon notice and request to us, prepay in full all of your remaining obligations under this Agreement, which amount shall include any accrued or unpaid payments, fees and charges due as of the date of repayment (your “Remaining Obligation’). IF, AND ONLY IF, YOU MAKE YOUR PREPAYMENT VIA THE DESIGNATED ACCOUNT, YOU WILL ALSO QUALIFY FOR AN EARLY REPAYMENT DISCOUNT. This discount will be communicated to you by letter as an “Early Repayment Amount" calculated as of the date of that letter. The Early Repayment Amount will be your Remaining Obligation reduced by an amount that is 30% of the outstanding Cost-of-Funds portion of your loan. Your outstanding Cost-of-Funds will be calculated from our internal loan amortization schedule. You must pay the Early Repayment Amount exactly as specified in the letter we provide you. Your account will then be reconciled as of the date that your payment is actually received, and any excess payment amount will be handled in accordance with Section 8.3. 7. DEFAULT; REMEDIES. 7.1 Events of Default. Each of the following shail constitute an “Event of Default” under this Agreement: (a) at any given time during the Term of the Agreement a sum amount equivalent to seven (7) Weekday Payment Amounts has become due but remains unpaid; (b) you fail to pay any amount you owe us under this Agreement (other than Weekday Payment Amounts) within 30 days after we request in writing that you do so; (c) you revoke or cancel any authorization for Lender or Operator to debit or otherwise withdraw from or access the Designated Account (but only to the extent that the prohibition on your revoking or canceling such authorization contained in this Agreement is not prohibited by applicable law); (d) you fail to maintain insurance required hereunder; (e) any warranty, representation or statement made or furnished to us by you or Signing Principal or ‘on your or Signing Principal's behalf under this Agreement is or becomes false or misleading in any material respect; (f) this Agreement ceases to be in full force and effect at any time and for any reason (including failure to create a validly perfected security interest or Lien); (g) you: (i) legally dissolve, are adjudicated insolvent or bankrupt or cease to pay your debts as they mature, (ii) make a general assignment for the benefit of or enter into an arrangement with creditors, (iii) apply for or consent to the appointment of a receiver, trustee or liquidator of you or a substantial part of your property, (iv) take action to dissolve or terminate your legal existence, or (v) file a voluntary petition in bankruptcy or under any similar law, or suffer such a petition or proceeding to be instituted against you; or (vi) if an individual, operating as a sole proprietorship, you die or become legally incompetent; (h) commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any of your creditors or by any governmental agency against any Collateral (as defined in Section 9), including a garnishment of any of your accounts or deposit accounts; (i) you fail to perform or comply with any other term, provision, condition, covenant or agreement contained in this Agreement or any other documentation related to this Agreement; (j) you default under any other agreement with us, Business Loan Agreement | Rev. 8.19 | Page 4 of 13DocuSign Envelope |: any Assignee or any affiliate of either us or any Assignee, or under any agreement with any third party material to your business or providing for the lease of real or personal property or the repayment of money borrowed; (k) we reasonably deem ourselves insecure with respect to your performance hereunder or in our rights with respect to the Collateral; and (1) any of the preceding events occurs with respect to any guarantor, endorser, surety, or accommodation party of any of your obligations hereunder. 7.2 Remedies. Upon the occurrence of an Event of Default under Section 7.1(g)(v), the unpaid balance of the Repayment Amount and all other amounts you owe us under this Agreement shall automatically become immediately due and payable. Upon the occurrence of any other Event of Default, we shall have the right, but not the obligation, to declare the unpaid balance of the Repayment Amount and all other amounts you owe us under this Agreement to be immediately due and payable. We shall have and may exercise all the rights and remedies of a secured creditor under the UCC. In addition, we shall have and may exercise any and all other rights and remedies available to us at law, in equity, or otherwise. Except as may be prohibited by applicable law, all of our rights and remedies, whether evidenced by this Agreement or by any other writing, shall be cumulative and may be exercised singularly or concurrently. Election by us to pursue any remedy will not constitute a waiver of our rights to pursue other remedies. No forbearance or delay by us shall be deemed to waive any of our rights or remedies or create a course of dealing between or among the parties hereto. Any election by us to make expenditures or to take action to perform one or more of your obligations under this Agreement, after your failure to perform, shall not affect our right to declare an Event of Default and exercise our remedies. 8. ADDITIONAL REPAYMENT TERMS. 8.1 Other Payment Methods. Subject to Section 6, you may make payments to us in addition to Weekday Payment Amounts. to satisfy your obligations under this Agreement. All such payments must be made in immediately available funds and U. S. Dollars paid by check, money order, wire transfer, ACH credit or any pay-by-phone or on-line service that we offer. Any payments sent by mail or overnight courier must be addressed to WebBank, c/o CAN Capital, Inc. at the address set forth in Section 15, Attn: Customer Service Department. You acknowledge and agree that payments sent to any other address may not be timely processed or credited. Any payments made pursuant to this Section 8.1 shall not affect in any way your obligation to pay Weekday Payment Amounts. We may accept late, postdated or partial payments without losing any of our rights under this Agreement or otherwise. We have no obligation to hold postdated checks and may process any postdated check on the date we receive it without being liable to you for any damages or other claims you may assert, which you hereby expressly waive. You agree not to mark any partial payment “paid in full,” “without recourse,” “in full satisfaction” or with any similar language, and you agree that any such notations shall have no force or effect and that we will not lose any of our rights under this Agreement if we accept any such payments. 8.2 Application of Payments. Weekday Payment Amounts. will be applied first to any Weekday Payment Amounts due, and then to any fees, charges or other amounts due and unpaid pursuant to this Agreement. If you make a payment other than a Weekday Payment Amount, we generally will apply payments first to any items we have asked you to pay, then to any other fees you owe us, then to other amounts you owe us (such as for amounts we incur in performing your obligations pursuant to Section 12), and then to the balance of the Repayment Amount. However, we reserve the right to apply payments in any order or manner we choose, in our sole discretion. 8.3 Excess Cash. In the event the amount of cash remitted by you pursuant to this Agreement exceeds the sum of the Repayment Amount and any other amounts we are entitled to receive hereunder (such excess being the “Excess Cash") by at least $20.00, we agree to pay the full amount of such Excess Cash to you within 30 days after our receipt thereof. In the event the Excess Cash is less than $20.00, you agree to forfeit such Excess Cash to us in consideration for administrative costs associated with handling Excess Cash. You acknowledge and agree that we have no obligation to take any action (including against Operator) with respect to any cash being held by Operator, which will become Excess Cash once it is paid by Operator to us, prior to our receipt of such Excess Cash. 8.4 Reliance on Terms. The provisions of this Agreement are for the benefit of you, Signing Principal, us, and Operator. Notwithstanding the fact that Operator is not a party to this Agreement, Operator may rely upon the terms of this Agreement and raise them as defenses in any action by you or Signing Principal. 8.5 Indemnification; Limitation of Liability. You shall indemnify and hold each of us, Operator, its and our respective officers, directors, affiliates, employees, agents, attorneys, representatives, successors and assigns (collectively, the “Indemnified Parties”) harmless from and against all losses, damages, claims, liabilities, obligations, penalties, suits, actions, controversies, or proceedings of any kind, imposed upon, incurred by, or asserted against any of the Indemnified Parties, in any way arising from, in connection with, relating to, or incident to your breach of this Agreement or any and all actions taken by Operator in reliance upon information or instructions provided to Operator by us, including the payment of all costs and expenses of every kind for the enforcement of our rights and remedies hereunder, including reasonable attorneys’ fees, costs of any trial, arbitration, appellate court proceeding, administrative proceeding, or any negotiations or consultations (the “Indemnified Amounts"). Such Indemnified Amounts will bear interest at the rate for prejudgment interest prevailing in your jurisdiction until paid. IN NO EVENT WILL WE OR ANY OPERATOR BE LIABLE FOR ANY CLAIMS ASSERTED BY YOU UNDER ANY THEORY OF LAW, INCLUDING ANY TORT OR CONTRACT THEORY FOR LOST PROFITS, LOST REVENUES, LOST BUSINESS OPPORTUNITIES, EXEMPLARY, PUNITIVE, SPECIAL, Business Loan Agreement | Rev. 8.19 | Page 5 of 13DocuSign Envelope |: INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH YOU HEREBY EXPRESSLY WAIVE. 9.GRANT OF SECURITY INTEREST. Capitalized terms used in this Section 9 without definition which are not defined elsewhere in this Agreement have the meanings defined in the UCC. For valuable consideration and to secure the prompt payment and performance in full of all of your, any Principal's or any of your affiliates’ indebtedness, liabilities and obligations to us, whether direct or indirect, joint or several, absolute or contingent, due or to become due, now existing or hereafter arising, whether or not such indebtedness, liabilities and obligations relate to the loan described in this Agreement and whether or not contemplated by the parties hereto at the time of the granting of this security interest, regardless of how they arise or by what agreement or instrument they may be evidenced or whether evidenced by any agreement or instrument and including obligations to perform acts and refrain from taking action as well as obligations to pay money, including all principal, interest, other fees and expenses, you hereby grant to us a security interest in the following properties, assets and rights (the “Collateral"), wherever located, whether now owned or hereafter acquired or arising and howsoever your interest therein may arise or appear (whether by ownership, lease, security interest, claim, or otherwise): (a) any and all amounts owing to you now or in the future from any merchant processor; (b) all Accounts; (c) all Chattel Paper {including Tangible Chattel Paper and Electronic Chattel Paper); (d) all Instruments; (e) all Goods, including, without limitation, Equipment, motor vehicles, Inventory, Farm Products, Accessions, and As Extracted Collateral; (f) all Documents; (g) all General Intangibles (including, without limitation, Payment Intangibles and software); (h) all Deposit Accounts; (i) all Letter of Credit Rights; (j) all Investment Property; (k) all Supporting Obligations; (l) all trademarks, trade names, service marks, logos and other sources of business identifiers, and all registrations, recordings and applications with the U. S. Patent and Trademark Office ("USPTO") and all renewals, reissues and extensions thereof (collectively “IP"); (m) any records and data relating to any of the foregoing, whether in the form of a writing, photograph, microfilm, microfiche, or electronic media, together with all of your right, title and interest in and to all computer software required to utilize, create, maintain, and process any such records or data on electronic media; and (n) any and all proceeds of any of the foregoing, including insurance proceeds or other proceeds from the sale, destruction, loss, or other disposition of any of the foregoing, and sums due from a third party who has damaged or destroyed any of the foregoing or from that party's insurer, whether due to judgment, settlement or other process. You irrevocably authorize us and our designees at any time and from time to time to fife: (i) in any filing office in any jurisdiction any initial financing statements and amendments thereto that indicate the collateral therein as all of your assets or words of similar effect, regardless of whether such description is greater in scope than the Collateral pledged to us hereunder; and (ii) such recordations with the USPTO we deem necessary or desirable to evidence the security interest in IP described above. 10.REPRESENTATIONS, WARRANTIES AND COVENANTS. You and Signing Principal represent, warrant and covenant the following as of the Effective Date and during the Term of this Agreement: 10.1 Your Business and Operations. You shall: (a) not materially change the nature of your business from what was originally disclosed to us in connection with this Agreement; and (b) not sell or otherwise transfer your business without: (i) our express prior written consent, which we may withhold in our sole discretion for any reason or no reason, and (ji) the assumption by transferee of all of your obligations under this Agreement using documentation reasonably satisfactory to us, provided such assumption will not release you from liability under this Agreement. 10.2 Name, Location, Authority, Etc. (a) You are and shall remain duly organized, licensed, validly existing and in good standing under the laws of your state or jurisdiction of organization and are and shall remain duly qualified, licensed and in good standing in each and every other state and jurisdiction in which the failure to do so could have a material adverse effect on your financial condition, business or operations; (b) your exact legal name set forth under “Borrower Information” on page 1, Table A, is true and correct and you do not and shall not conduct your business under any other name; (c) you shall not change your place of business, your legal name, entity type or state or jurisdiction of organization, unless you have provided us with at least 60 days’ prior written notice and you, at your sole cost and expense, provide such documents, agreements and information we request and take such other actions as we deem necessary or desirable to protect our interests hereunder and in the Collateral; (d) you are authorized and permitted, by law, your organizational documents, contracts to which you or Signing Principal is a party and otherwise, to execute, deliver and perform this Agreement and all related documents; (e) all of your organizational and formation documents and all amendments thereto have been duly filed and are in proper order and any capital stock, membership interests or other ownership interest issued by you and outstanding was and is properly issued and all of your books and records are accurate and up to date and will be so maintained; (f) you are subject to no charter, corporate or other legal restriction, or any judgment, award, decree, order, governmental rule or regulation or contractual restriction that could have a material adverse effect on your financial condition, business or prospects; (g) you are and will continue to be in compliance with your organizational and formation documents, all contractual requirements by which you may be bound, and all applicable federal, state and local laws, statutes, regulations, ordinances and rules pertaining to the conduct of your business, including without limitation the regulations of card associations and payment networks; (h) there is no action, suit, proceeding or investigation pending or, to your knowledge, threatened against Business Loan Agreement | Rev. 8.19 | Page 6 of 13DocuSign Envelope |: or affecting you or any of your assets before or by any court or other governmental authority which, if determined adversely to you, would have a material adverse effect on your financial condition, business or prospects or the value of the Collateral; and (i) you possess and are in compliance with all permits, licenses, approvals, consents, registrations and other authorizations necessary to own, operate and/or lease your properties and to conduct your business. 10.3 Location of the Collateral. You agree to keep the Collateral (or, to the extent the Collateral consists of intangible property such as Accounts or General Intangibles, the records concerning the Collateral) at the location(s) shown under “Borrower Information” on page 1, Table A, or at such other locations as we have agreed to in advance in writing. Upon our request, you will deliver to us in form satisfactory to us a schedule describing the Collateral in such detail as we reasonably request. You shall not remove the Collateral from its existing location without our prior written consent. 10.4 Repairs and Maintenance. You shall: (a) only use Collateral in a prudent, businesslike manner for its originally- intended purpose and solely for business purposes and NOT for any consumer, personal, household or family purpose; (b) comply promptly with all applicable insurance policies, laws, ordinances, rules, regulations and requirements of all governmental authorities, now or hereafter in effect, applicable to the ownership, production or disposition thereof; and (c) pay when due all taxes and claims for work done on, or services or material furnished in connection with, the Collateral. 10.5 Inspection of Collateral and Place of Business. We or our designated representatives and agents shall have the right during your normal business hours and at any other reasonable time to examine the Collateral where located and the interior and exterior of any of your places of business. During an examination of any of your places of business, we may examine, among other things, whether you (a) have a place of business that is separate from any personal residence, (b) are open for business, and (c) have sufficient inventory to conduct your business. When performing an examination, we may photograph the interior and exterior of any your places of business, including any signage, and may photograph any Principal. 10.6 Insurance. You shall maintain insurance in such amounts and against such risks as are consistent with past practice and shall show proof of such insurance upon our request. You shall promptly notify us of any loss or damage to the Collateral. 10.7. Business Information; Reliance; Compliance. All information (financial and other) provided by or on your or Signing Principal's behalf to us i