Invoice Financing Revolving Credit Agreement

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INVOICE FINANCING REVOLVING CREDIT AGREEMENT

THIS INVOICE FINANCING REVOLVING CREDIT AGREEMENT (this “Agreement” or “Revolving Credit Agreement”) is made by and between WebBank (“Lender” or “we”) and the borrower identified above (“Borrower” or “you”), effective as of the Effective Date listed above  by the Borrower of a Line of Credit approved by Lender and serviced by Bill.com Capital 3, LLC (“Servicer”) through www.Bill.com (the “BILL Services”) in accordance with the terms and conditions set forth herein.

PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING THE BOX “I AGREE” ON THE APPLICATION IN THE BILL SERVICES, BORROWER IS AGREEING TO THE TERMS AND CONDITIONS OF THIS INVOICE FINANCING REVOLVING CREDIT AGREEMENT, BORROWER ACKNOWLEDGES AND AGREES THAT:

(I)         BORROWER UNDERSTANDS AND AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT;

(II)       BORROWER AGREES TO BE BOUND BY THIS AGREEMENT INCLUDING THE REQUIREMENT TO ARBITRATE CERTAIN DISPUTES;

(III)   ALL INFORMATION PROVIDED BY BORROWER IS COMPLETE AND ACCURATE;

(IV)     LENDER AND/OR ITS DESIGNEE MAY OBTAIN REPORTS ABOUT THE CONDITION AND/OR CREDITWORTHINESS OF YOUR BUSINESS AND INVESTIGATE SUCH MATTERS BY MAKING DIRECT INQUIRIES OF BUSINESSES WHERE YOU HAVE ACCOUNTS AND OTHER COUNTERPARTIES WITH WHICH YOU INTERACT;

(V)       IF YOU ARE A NATURAL PERSON WHO IS APPLYING FOR YOUR BUSINESS, YOU ALSO AUTHORIZE LENDER AND/OR ITS DESIGNEE TO OBTAIN CONSUMER REPORTS ABOUT YOU AND TO MAKE DIRECT INQUIRIES OF WHERE YOU WORK AND OF PEOPLE WHO KNOW YOU, TO THE EXTENT PERMITTED BY LAW; UPON YOUR REQUEST, LENDER AND/OR ITS DESIGNEE WILL DISCLOSE WHETHER A CONSUMER REPORT WAS REQUESTED AND THE NAME AND ADDRESS OF ANY CONSUMER REPORTING AGENCY THAT FURNISHED THE REPORT; AND

(VI)     LENDER AND/OR ITS DESIGNEE MAY REPORT INFORMATION ABOUT ITS EXPERIENCE WITH BORROWER TO BUSINESS REPORTING AGENCIES. FURTHERMORE, IF BORROWER IS A SOLE PROPRIETOR, LENDER AND/OR ITS DESIGNEE MAY REPORT INFORMATION ABOUT ITS EXPERIENCE WITH YOU TO CONSUMER REPORTING AGENCIES

THESE AUTHORIZATIONS ARE EFFECTIVE THROUGHOUT THE APPLICATION PROCESS AND TERM OF THE AGREEMENT AND DO NOT TERMINATE UNTIL YOU HAVE PAID LENDER THE TOTAL INDEBTEDNESS AND THIS AGREEMENT HAS TERMINATED.

1.           Definitions.

(a)             “Collateral” means the specific invoice(s) or accounts receivable(s) of Borrower that corresponds to the applicable Financed Invoice. Collateral from one Financed Invoice will not be used for a different Financed Invoice.

(b)             “Credit Limit” means the amount of the Line of Credit that Lender will extend to you pursuant to this Agreement.

(c)             “Day” means a calendar day unless otherwise indicated.

(d)             “Designated Bank Account” means any bank account that you have provided as part of your application for this Line of Credit, or to Servicer or an affiliate of servicer through the Bill Services.

(e)             “Disbursement” means the Financed Invoice Amount minus the Per Invoice Fee.

(f)             “Disbursement Date” means the day Lender initiates the Disbursement to you which may be prior to the date you receive the Disbursement.  Each Financed Invoice has its own Disbursement Date.

(g)             “Effective Date” means the date you execute this Agreement, and the Line of Credit is approved by Lender.

(h)             “Financed Invoice” means each individual invoice that is financed under this Agreement.

(i)             “Financed Invoice Amount” means the face value of the Financed Invoice that is financed under this Agreement.  The Financed Invoice Amount is equal to the Disbursement amount plus the Per Invoice Fee.

(j)             “First Monthly Payment Date” means, for each Financed Invoice, 2 (two) Months, plus 1 (one) business day following the Disbursement Date if the Financed Invoice is not paid in full within 2 (two) Months of the Disbursement Date.

(k)             “Indebtedness” means the Principal, Interest, and all other amounts owed to Lender for each Financed Invoice.

(l)             “Interest” means the interest that has or will accrue based on the Interest Rate.

(m)           “Interest Rate” means the interest rate stated in the summary table above.

(n)             “Line of Credit” means an open-ended revolving line of credit issued by Lender in the amount stated in the summary table above.

(o)             “Maturity Date” means the due date of the last Monthly Payment.

(p)             “Month” means the numerical one-month anniversary of a day. For example, the one-month anniversary of January 15 is February 15.  

(q)             “Monthly Payment(s)” means the Monthly payments that you must make pursuant to this Agreement if the Financed Invoice Amount is not paid in full within two (2) Months of the Disbursement Date.

(r)             “Monthly Payment Date” means the due date of each payment after the First Monthly Payment Date.

(s)             “Payor” means the third party, as designated on the Financed Invoice, who is responsible for paying You the amount indicated on the face of the invoice.

(t)             “Per Invoice Fee” means the fee you must pay for each Financed Invoice as noted above in the summary table.

(u)             “Principal” for each Financed Invoice means the Financed Invoice Amount as well as any past due Interest, or other amounts related to the Financed Invoice that are due and owing to Lender.      
   
(v)             “Total Indebtedness” means the total of all Indebtedness owed to Lender under this Agreement for all Financed Invoices.

2.           The Line of Credit.  Subject to the terms and conditions of this Agreement, Lender agrees to issue an open-ended revolving Line of Credit to Borrower, up to the Credit Limit and subject to the terms and conditions of this Agreement.  The Line of Credit may only be used to finance eligible invoices through the BILL Services. Invoice eligibility is determined in the sole discretion of the Lender and Bill.  Neither Lender nor BILL are under any obligation to make invoices eligible for invoice financing. By accepting the Line of Credit, Borrower unconditionally promises to pay the Total Indebtedness due and owing under this Agreement.

3.       How Invoice Financing Works.

(a)             Select an invoice to finance.  You may select an eligible invoice to finance by clicking “Pay me Now” next to an invoice that is marked as eligible in the Bill Services.

(b)             Apply for a Line of Credit.  Once you have selected an eligible invoice, you are required to apply for a Line of Credit from Lender through the Bill Services.        

(c)             Lender Approval.  Upon approval of your application, Lender will issue you a Line of Credit pursuant to this Agreement.  Once you have been issued the Line of Credit, you will be able to use it to finance invoices without having to submit additional applications to Lender.

(d)             Receive your Disbursement. For each Financed Invoice, Lender will transfer the Disbursement to the bank account that you provided to Lender when you applied for the Line of Credit, or as modified by you through the Bill Services. The Disbursement amount will be the Financed Invoice Amount minus the Per Invoice Fee. The repayment amount will be the Financed Invoice Amount, which includes the Disbursement amount and the Per Invoice Fee.    

(e)             Payment of Financed Invoice Amount in full.  If the Financed Invoice Amount is paid in full within two (2) Months of the Disbursement Date, then the following shall apply to such paid in full Financed Invoice Amount:

i.   Pay no Interest.  You will not be charged interest if the Financed Invoice Amount is paid in full within two (2) Months of the Disbursement Date.  When your Payor pays the Financed Invoice through the BILL Services, the amount will be automatically applied to the corresponding Financed Invoice Amount.  If your Payor does not pay the full amount of the Financed Invoice Amount within two (2) Months of the Disbursement Date, then you may either pay the amount in full within the two (2) Month period or pay the Financed Invoice Amount to Lender through eleven (11) Monthly Payments in accordance with the next section.

(f)             Monthly Payments. If the Financed Invoice Amount is not paid in full within two (2) Months of the Disbursement Date, then the following shall apply to any outstanding amounts:

i.   Pay Interest. Interest will accrue and be charged on any outstanding Indebtedness on a Monthly basis beginning on the First Monthly Payment Date and continuing each Monthly Payment Date thereafter, or until the Indebtedness is paid in full.

ii. Eleven (11) Monthly Payments. You will begin making payments on the First Monthly Payment Date and continuing to make payments on each Monthly Payment Date for the next ten (10 Months), or until the Indebtedness is paid in full.
   
Payment Due Dates. If any payment due date falls on a date that is not a business day, such Monthly Payment shall be due on the next business day.  Furthermore, if a Monthly Payment Date (not including the First Monthly Payment Date) falls on the 29th, 30th, or 31st of a month, then that payment shall be due on the first business day of the following month.

(g)             Repayment Schedules. Note that the repayment schedules in Sections 3(e) and 3(f) above are mutually exclusive.  Only one option will apply to each Financed Invoice. If you, or your Payor pays the full amount of the Financed Invoice Amount within two (2) Months of the Distribution Date, then Section 3(e) applies.  If the full amount of the Financed Invoice Amount is not paid within two (2) Months of the Distribution Date, then section 3(f) applies.

4.           Drawdown on your Line of Credit. When you finance an invoice, the amount will be deducted from your Line of Credit. You may not exceed the Credit Limit at any time. As you payback the amount you financed, such amounts will replenish your Line of Credit.  Invoice financing is only available for the full amount of an invoice.  Partial invoice financing is not available.

5.           Invoice Distinction. Each Financed Invoice will have its own payment schedule based on its Disbursement Date.  Additionally, when your Payor pays the Financed Invoice Amount, such payment will be matched to the corresponding Financed Invoice even if you have multiple Financed Invoices at the same time. However, if you have multiple payments due on the same First Payment Date or Monthly Payment Date, then we may in our sole discretion collect the payments from you through one ACH debit for the total of all payments due on that date.

6.           Automatic Invoice Financing. You may select “Automatic Invoice Financing” in the BILL Services. If you do so, all future eligible invoices will be automatically financed, and Lender will send you the Disbursement, without any further action from you.  If you no longer want Automatic Invoice Financing, you may turn it off in the BILL Services in the settings menu in your BILL account.  If Automatic Invoice Financing is not enabled, you will be required to individually select eligible invoices through the Bill Services.

7.           Use of Financed Invoice Proceeds and Disbursement. Borrower acknowledges and agrees that all Disbursements must be utilized only for business or commercial purposes in connection with Borrower’s business. Borrower represents, warrants, and covenants that the Disbursements will be used only for business or commercial purposes, and not for any personal, family or household purposes. Lender will make the Disbursement to Borrower, subject to Lender’s review and approval, including its anti-fraud, anti-money laundering, and risk control procedures.  Lender will transfer the proceeds of the Disbursement into the bank account designated by Borrower in your application and approved by Lender.  If you want to change your designated bank account, you may do so through the Bill Services.

8.           Calculation of Interest.  Beginning on the First Monthly Payment Date, and on each Monthly Payment Date thereafter, Interest shall accrue on the unpaid Principal at a rate equal to the Interest Rate divided by 12 until the Indebtedness has been repaid in full. Interest shall accrue and be charged on First Monthly Payment Date based on the outstanding Principal on that date.  Thereafter, Interest shall accrue and be charged on each Monthly Payment Date based on the outstanding Principal on that date. If any Indebtedness remains outstanding after the Maturity Date, or Borrow is in default of this Agreement, Interest will continue to accrue on a Monthly basis, and Borrower shall pay such Interest and any outstanding Indebtedness.

9.           Payment Process and Payment at Maturity. All Monthly Payments shall be automatically debited from Borrower’s Designated Bank Account via Automated Clearing House (ACH) pursuant to the authorization by Borrower, without Borrower’s setoff or counterclaim, in lawful money of the United States in the form of electronic deposits in immediately available funds into Lender’s designated account or as Lender may otherwise direct, free and clear of and without deduction for any taxes (except as required by law), fees, or other charges of any nature whatsoever imposed by any taxing authority. By providing and designating a bank account in connection with applying for this Line of Credit, Borrower (i) agrees and consents to the automatic debit from Borrower’s designated account for all payments, charges and fees due under this Agreement, including for the total amount due in the event of acceleration of each Indebtedness and the Total Indebtedness (as applicable); (ii) represents, warrants, and agrees that the designated account is and shall remain a business bank account and that it is not and shall not be an account established primarily for personal, family, or household purposes at any time until the Total Indebtedness is paid in full; and (iii) agrees to be bound by the operating rules of the National Automated Clearing House Association (“Nacha Rules”), and all other applicable laws, rules and regulations in connection with all electronic ACH transactions requested or processed in connection with each Financed Invoice Amount and the Total Indebtedness under this Agreement. On the Maturity Date for each Financed Invoice or the date of acceleration of such Financed Invoice, Borrower shall pay all outstanding Indebtedness relating to such Financed Invoice to Lender (as calculated by Lender, inclusive of Interest relating to the Financed Invoice), even if such amount is more than the Monthly Payment due on the Maturity Date or date of acceleration. On the date of acceleration of Total Indebtedness, Borrower shall pay all outstanding Total Indebtedness relating to all Financed Invoices to Lender (as calculated by Lender, inclusive of Interesting relating to all Financed Invoice Amounts), even if such amount is more than the Monthly Payments due with respect to all outstanding Financed Invoice Amounts on the date of acceleration.  Any payment received after 1:00 pm Pacific Time on a business day by Lender will be deemed to have been made by Borrower on the next succeeding business day and, at the election of Lender, interest thereon shall be payable by Borrower at the Interest Rate during such extension. If any payment required to be made by Borrower under this Agreement becomes due and payable on a day other than a business day, the due date thereof shall be extended to the next succeeding business day and, at the election of Lender, interest thereon shall be payable at the Interest Rate during such extension. 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.

10.       Payment Application. If a Financed Invoice is not paid in full within the first two (2) Months after the Disbursement Date, then Monthly Payments will be initiated through a debit from the Borrower’s bank account for each Financed Invoice on the First Monthly Payment Date and then for each Monthly Payment thereafter.   If Lender receives a payment through another method, including through set-off, and you have multiple Financed Invoices at the same time, then payments will be applied to the oldest outstanding payment due; however, to the extent the payment exceeds outstanding payments due the excess will be treated as a prepayment applied to the Indebtedness of each Financed Invoice in order of Disbursement Date.   Lender may apply all sums received to the payment of Principal, Interest and other fees and charges on the Indebtedness in such order and with such priority as Lender may determine within its sole discretion, unless otherwise required by law. Borrower agrees that the Disbursements and Lender’s related records shall be conclusive evidence of the Disbursements with respect to Borrower that may be owed to Lender at any time, absent manifest error.  Borrower’s obligations under this Agreement shall not be affected by any counterclaim, set-off, recoupment, offset, defense or other alleged right against Lender.  

11.       Prepayment; Waiver of Presentment and Demand. Borrower has the right to prepay using the “Repay Now” button through your account on the BILL Services, either in full or in part, any Indebtedness for each Financed Invoice prior to the Maturity Date, without any prepayment penalty. Additionally, if the Payor pays the amount of the Financed Invoice after Monthly Payments have begun, such amounts shall be applied to any outstanding Indebtedness of the applicable Financed Invoice, and treated as a prepayment, by Borrower, of remaining amounts due.  Any amounts paid by the Payor in excess of the Indebtedness of the Financed Invoice will be paid to Borrower.  Borrower shall pay in connection with any prepayment on a Financed Invoice Amount  all Interest due and owing, concurrently with payment to Lender of any Principal on such Financed Invoice Amount. Until Borrower has repaid all the Indebtedness, if Borrower prepays any Indebtedness in part, such prepayment does not reduce any subsequent Monthly Payment and Borrower shall continue to make Monthly Payments that remain outstanding. Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, and notice of protest, demand, dishonor, suit, or nonpayment of Indebtedness.

12.       Credit Limit and Invoice Financing Requests. Borrower may not request to finance an invoice if it would cause the Total Indebtedness to exceed the Credit Limit.  Lender may refuse any request to finance an invoice that would cause the unpaid Total Principal to exceed the Credit Limit if such invoice was financed.  Lender may increase or decrease the Credit Limit at any time in Lender’s sole discretion without prior notice to Borrower.  Lender also may suspend requests for invoice financing or decline to honor a request for invoice financing in Lender’s sole discretion without prior notice to Borrower.  Requests for invoice financing may be subject to Lender’s anti-fraud, anti-money laundering, and risk control procedures.

13.       Conditions to Funding. Lender will not finance any invoices unless Lender is satisfied that Borrower has met all the conditions set forth in this Agreement, including the following specific conditions precedent:

(a)             Borrower shall have agreed and consented to abide by this Agreement by clicking the applicable button on the application;

(b)             Borrower shall have delivered to Lender all documentation and information requested by Lender in connection with the Line of Credit provided under this Agreement, including but not limited to, financing related documents and documentation regarding Borrower and its business, beneficial owner, operations, financials, and conditions, in the form and substance that are satisfactory to the Lender;

(c)             All documentation and information provided by or for Borrower to Lender and the representations and warranties set forth in this Agreement shall at all times be true and correct, and do not omit any material fact necessary to make Borrower’s statements not misleading as of the time when made or delivered;

(d)             All acts and conditions (including, any necessary regulatory approvals and any required filings, recordings, or registrations) required to be done and performed for the execution, delivery, performance, and enforceability of this Agreement shall have been done and performed in compliance with applicable laws; and

(e)             There shall not exist a condition which would constitute a Default under this Agreement.

14.       Representations and Warranties of Borrower. Borrower represents and warrants to Lender as of the date of this Agreement, and each day on which Borrower requests and each day on which any Indebtedness remains outstanding that:

(a)         Organization. Borrower is duly organized, validly existing, and in good standing under the laws of the state in which Borrower is organized. Borrower is duly authorized to transact business in all other states in which Borrower does business, having duly obtained all necessary filings, governmental licenses, and approvals for each state in which Borrower does business.

(b)       Authorization; No Violation. Borrower’s execution, delivery and performance of this Agreement has been duly authorized and does not conflict with, result in a violation of, or constitute a default under (i) any provision of Borrower’s organizational documentation, (ii) any agreement or other instrument binding upon Borrower, or (iii) any law, governmental regulation, court decree or order applicable to Borrower.

(c)         Enforceability. This Agreement constitutes a legal, valid, and binding obligation of Borrower, enforceable against Borrower in accordance with its terms (except as enforceability may be affected by bankruptcy, insolvency or other similar laws affecting the enforcement of creditor’s rights).

(d)       No Impairment. Borrower has not taken any action (including executing documents) or failed to take any action, which (i) would materially and adversely affect any claim, or (ii) would give any person or entity other than Borrower an interest in the award or the proceeds stemming from a claim.

(e)         Solvency. Borrower: (i) is solvent, (ii) adequately capitalized, (iii) has not incurred any debt that would impair Borrower’s ability to pay the Indebtedness or as such debt mature; and (iv) will not be rendered insolvent because of the Indebtedness or performance of the terms of this Agreement.

(f)         No Litigation. No litigation, investigation, claim, action or proceeding of or before any court, government authority, arbitration or any third party is pending or, to the best knowledge of Borrower, threatened by or against Borrower or its properties and assets that if adversely determined is likely to have a material adverse effect on Borrower’s business, operations, property, financial or condition.

(g)       Disclosure. None of the representations or warranties made by Borrower in this Agreement as of the date made, and none of the documents or information provided by or on behalf of Borrower to Lender, taken as a whole, contains any untrue statement of material fact or omits any material fact necessary to make the statements therein, in light of the circumstances under which they are made, not misleading as of the time when made or delivered.

(h)       Collateral. Besides Lender, no other individual or entity has an interest, security interest or claim in the Collateral.

15.       Affirmative Covenants. Borrower covenants and agrees with Lender that, as long as any Indebtedness remains unpaid, Borrower shall:

(a)         Payment of Indebtedness. Pay, discharge, or otherwise satisfy at or before maturity or before it becomes delinquent, defaulted, or accelerated all its obligations (including taxes).

(b)       Maintenance of Existence, Properties and Information; Compliance.

i.   Maintain its organizational existence and maintain all rights, privileges, licenses, approvals, franchises, properties, and assets necessary or desirable in the normal conduct of its business and comply with all contractual obligations and requirements of law.

ii. Not without the prior written consent of Lender (A) sell, assign, convey or transfer Borrower’s business or (B) materially change Borrower’s business.

iii.   Notify Lender of any changes to Borrower’s legal name or other Borrower information previously provided.

(c)         Books and Records. Keep proper books of record and account in which full, true, and correct entries in conformity with generally acceptable accounting principles and all requirements of law shall be made of all dealings and transactions in relation to its business and activities.

(d)       Notices. Promptly give written notice to Lender of (i) the occurrence of any potential Default or Default, (ii) any litigation or proceeding affecting Borrower that could have a material adverse effect on the business, operations, property, or financial or other condition of Borrower; and (iii) a material adverse change in the business, operations, property or financial or other condition of Borrower.

(e)         Expenses. Pay all reasonable out-of-pocket expenses (including reasonable fees and disbursements of counsel) of Lender incident to the enforcement of payment of any Indebtedness, whether by judicial proceedings or otherwise, and before as well as after judgment including, in connection with bankruptcy, insolvency, liquidation, reorganization, moratorium, or other similar proceedings involving Borrower or a “workout” of any Indebtedness. The obligations of Borrower under this Section 12(e) shall survive payment of all other Indebtedness.

(f)         Insurance. Maintain insurance with financially sound and reputable insurance companies’ appropriate insurance on all property and business assets and against all such risks as is consistent and in accordance with industry practice for companies similarly situated and engaged in similar businesses as Borrower.

(g)       Indemnification. Borrow agrees to indemnify, defend, and hold harmless (i) Lender and (ii) any subsequent holder of any rights under this Agreement, including each of theirs officers and other employees, representatives, and agents (each, an “Indemnified Party”) from and against any and all claims, obligations, penalties, actions, suits, judgments, reasonable costs and disbursements, losses, liabilities, and damages (including, reasonable attorneys’ fees) of any kind whatsoever (collectively and severally, “Losses”) that may at any time be imposed on, assessed against, or incurred by such Indemnified Party in any way relating to or arising out of any extension of credit, this Agreement, or any action taken or omitted to be taken by such Indemnified Party in connection with the foregoing. The indemnification obligations of Borrower under this Agreement shall survive termination of this Agreement and payment in full of Indebtedness.

(h)       Further Assurances. Promptly on request by Lender, do, execute, acknowledge, deliver, record, re-record, file, re-file, register, and re-register any and all such further acts as Lender may require from time to time in order to (i) carry out more effectively the purposes of this Agreement, and (ii) assure, preserve, protect, and confirm to Lender the rights granted or now or hereafter intended to be granted to Lender under this Agreement.

16.       Default. Borrower will be in default (“Default”) under this Agreement if at any time:

(a)         Borrower fails to pay any Monthly Payment or other Indebtedness under this Agreement by the applicable due date as indicated in the Borrower’s account in the BILL Services or in accordance with this Agreement;

(b)       Borrower fails to perform or abide by any term or condition of this Agreement and such failure remains uncured within ten (10) Days after receipt of a written notice from Lender of such failure;

(c)         Any representation or warranty made by Borrower shall be incorrect, false or misleading when made or deemed made and (if the breach is capable of cure) Borrower fails to cure such breach within ten (10) Days after receipt of a written notice from Lender of such breach;

(d)       Borrower becomes insolvent or ceases to do business as a going concern, or becomes unable, or shall admit in writing of its inability, to pay its debts as they become due;

(e)         A receiver is appointed for all or of any part of the property of Borrower, or Borrower makes any assignment for the benefit of creditors;
(f)         A petition is filed by or against Borrower under any bankruptcy or insolvency laws;

(g)       Any material adverse change, as determined by Lender in its reasonable discretion, occurs in Borrower’s ownership or Borrower disposes of all or substantially all of Borrower’s assets;

(h)       For Borrowers that are sole proprietors, Borrower dies or becomes legally incompetent;

(i)         Borrower defaults under any other agreement with Lender or Servicer.

17.       Remedies. Upon the occurrence of a Default hereunder, Lender shall have the right to do any one or more of the following (in addition to any rights and remedies under applicable law):

(a)         Declare the Indebtedness for the Financed Invoice Amount that is the subject of the Default to accelerate and become immediately due and payable, without demand upon or presentment to Borrower, which are expressly waived by Borrower, and Lender may immediately exercise all rights, powers and remedies available to it at law, in equity or otherwise;

(b)       Declare the Total Indebtedness for all Financed Invoice Amounts to accelerate and become immediately due and payable, without demand upon or presentment to Borrower, which are expressly waived by Borrower, and Lender may immediately exercise all rights, powers and remedies available to it at law, in equity or otherwise;
(c)         Suspend or terminate Borrower’s ability to request financing;

(d)       close the Line of Credit; and

(e)         Immediately terminate all of Lender’s commitments and obligations under this Agreement or any other agreement with Borrower.

The foregoing remedies and other remedies set forth in this Agreement are cumulative and non-exclusive of any other rights and remedies that Lender may have under any other agreement or at law or in equity and may be exercised individually or concurrently, any or all thereof may be exercised instead of, or in addition to, each other or any remedies at law, in equity, or under statute, or otherwise.

18.       Usury Savings Clause. It is the intent of the parties to comply with the applicable usury limit. If Borrower pays Interest on any Financed Invoice Amount that is finally determined to be more than the then legal maximum permitted interest rate, then the Interest Rate hereunder shall be conformed to the maximum permitted rate and any portion of Interest paid representing an amount more than the then legal maximum rates shall be deemed a payment of Principal and applied against the Principal of such Financed Invoice Amount.

19.       Grant of Security Interest. Borrower conveys, pledges, and grants to Lender a security interest and lien in the Collateral to secure the payment and performance of all obligations of Borrower in the Agreement, including but not limited to the Total Indebtedness, and any fees, charges, or other amounts due and owing to Lender. Terms used in this section which are not defined elsewhere have the meanings provided in the Uniform Commercial Code. Borrower irrevocably authorizes Lender and/or its designee(s) at any time and from time to time to file in any filing office in any jurisdiction any financing statements, amendments thereto, and other filings and notices Lender deems appropriate to perfect or otherwise ensure its security interest in the Collateral. Upon Lender’s request, Borrower shall execute any financing statement, amendments thereto, or other filings for Lender to perfect or otherwise ensure its security interest in the Collateral. Borrower hereby irrevocably appoints Lender (or its designee) as the true and lawful attorney-in-fact of Borrower, coupled with an interest, with full power in Borrower’s name, place and stead to execute financing statements on Borrower’s behalf and to do any and all other acts on Borrower’s behalf necessary or helpful to perfect and continue perfection of Lender’s security interest granted in the Collateral pursuant to the Uniform Commercial Code or other applicable law, including but not limited to, completing any errors and omissions concerning descriptions, numbers or other descriptive information relating to the Collateral.

20.       Right to Collect Payment on Collateral. In the event Borrower receives any payments on the Collateral at any time, Borrower shall use all such payments solely to pay the Indebtedness. In the event Servicer or Lender receives on behalf of Borrower any payments on the Collateral, Borrower expressly grants Servicer or Lender the right to automatically apply all such payments to pay the Indebtedness.

21.       Set-off. Without limiting any rights and remedies of Lender under law and to the extent permitted by law, in the event of a Default, Lender is authorized at any time and from time to time, without prior notice to Borrower, any such notice being waived by Borrower (if permitted by law), to set off and apply any and all amounts or deposits (general or special, time or demand, provisional or final) held by Lender to or for the credit or the account of Borrower against any and all Indebtedness owing to Lender, now or hereafter existing, irrespective of whether or not Lender shall have made demand under this Agreement or related documents and although such Indebtedness may be contingent or unmatured. Lender will promptly notify Borrower after any such setoff and application made by Lender; provided, however, that the failure to give such notice shall not affect the validity of such setoff and application. In the event of a Default, the right of set-off is in addition to the right to collect payment on Collateral, and either remedy, or both remedies, may be used in the sole discretion of Lender.

22.       Credit Reporting. You authorize Lender, Servicer, and/or its designee to obtain reports about the condition and/or creditworthiness of your business and to investigate such matters by making direct inquiries of businesses where you have accounts and other counterparties with which you interact. If you are a natural person obtaining the Line of Credit for your business, you also authorize us to obtain consumer reports about you and to make direct inquiries of where you work and of people who know you, to the extent permitted by law. Upon your request we will disclose whether a consumer report was requested and the name and address of any consumer reporting agency that furnished the report. These authorizations are effective throughout the term of this Agreement and do not terminate until you have paid us all that you owe under the Agreement. If you are a natural person obtaining the Line of Credit as a sole proprietor, we may report information about our experience with you to consumer reporting agencies. Late payments, missed payments, or other defaults in connection with any Indebtedness may be reflected on your credit report. If you believe that we have reported inaccurate information to a consumer reporting agency, contact customer support through the functionality provided in your account on the BILL Services or write to us at WebBank c/o Bill.com Capital 3, LLC, Attention: General Counsel, 6220 America Center Drive, Suite 100, San Jose, CA 95002 and we will investigate the matter. Furthermore, Lender, Servicer, and/or its designee may report information about our experience with Borrower to business reporting agencies.

23.       Amendment; Waiver; Enforcement. Any term, covenant, agreement, or condition of this Agreement may, only with the written consent of Borrower and Lender, be amended or compliance therewith may be waived (either generally or in a particular instance and either retroactively or prospectively). Any amendment or waiver shall be binding upon Borrower and Lender and each of their respective successors and permitted assigns, whether this Agreement shall have been marked to indicate such amendment or waiver. No such amendment or waiver shall extend to or affect any obligation not expressly amended or waived or impair any right consequent thereon. No failure or delay on Lender’s part in the exercise of any power, right or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power, or privilege. Borrower agrees to (a) reimburse Lender for all costs and expenses (including reasonable attorneys’ fees and court costs) incurred in connection with collection or enforcement of any indebtedness, and (b) pay all other costs and expenses for which Borrower is obligated under this Agreement. All reasonable amounts spent, and obligations incurred or assumed by Lender in effecting such compliance shall constitute an additional amount due to Lender.

24.       Assignment and Subcontracting. Borrower may not sell, transfer, delegate or assign this Agreement, or its rights or obligations hereunder, without Lender’s prior written consent, and any such action without Lender consent shall be null and void. Subject to the foregoing, all provisions in this Agreement or any document or agreement relating to this Agreement shall inure to the benefit of Lender, and its successors and assigns, and shall be binding upon Borrower, and its successors and assigns. Borrower acknowledges that Lender may elect to sell, assign, and otherwise transfer to other parties (each a “Transferee”) all or portions of, and participations in, the Lender’s interest in the Indebtedness outstanding or rights under this Agreement from time to time and expressly agrees that the holder of any Indebtedness or interest under this Agreement shall be entitled to the rights and have the obligations assigned to such holder by Lender under this Agreement, including any amendments thereto, deemed necessary or desirable by Lender to effectuate transfer pursuant hereto. Lender may engage, use, delegate, or subcontract to third party service providers (including, but not limited to, Servicer) any services relating to the Line of Credit including, but not limited to, the marketing, management, servicing, or collection of any Indebtedness. Borrower agrees that Servicer, Lender and their service providers may receive and process Borrower’s information and related data in connection with administering the Line of Credit and each Disbursement, as well as Lender’s performance of this Agreement.

25.       Entire Agreement; Severability. This Agreement constitutes the entire agreement between Borrower and Lender, superseding all prior understandings and writings, with respect to the subject matter hereof. If any provision of this Agreement, or the application thereof to any person or circumstance, is held invalid or unenforceable, the remainder of this Agreement, and the application of such provision to other persons or circumstances, shall not be affected thereby, and to such end, the provisions of this Agreement are agreed to be severable.

26.       Governing Law; Jury Waiver. This Agreement shall be deemed a contract under, and shall be governed and construed in accordance with, applicable federal law, and (to the extent state law applies) the laws of the State of Utah without giving effect to such state’s principles of conflicts of laws. Each of Lender and Borrower knowingly and intentionally, to the fullest extent permitted by applicable law, hereby absolutely, unconditionally, irrevocably, and expressly waives all right to a trial by jury in any legal proceeding arising out of or relating to this Agreement.

27.       USA PATRIOT Act. To help the U.S. Government fight the funding of terrorism and money laundering activities, federal and state law requires financial institutions, including banks and money services businesses, to obtain, verify, and record information that identifies every customer who opens an account.

What this means for you:

If you are opening an account for an individual or a sole proprietor, we will ask for the name, address, date of birth, social security number, and other information that will allow us to identify you. We may also ask to see a driver’s license, passport or other identifying documents.

If you are opening an account for a legal entity, we will ask for the entity’s name, address, taxpayer identification number, and control or equity beneficial owner information. We may ask for formation documents and other identifying documents or information on the entity.

28.       Telephone Calls and SMS Text Messages.

(a)         Consent Generally. You authorize us to contact you by telephone, electronic mail, SMS, direct drop voicemail or other technologies, at any phone number or address you provide to discuss your account. Further, you consent to our use of automatic telephone dialing systems and/or prerecorded or artificial voice messages. Further, you authorize such contact to a wireless telephone number which may result in charges to you from your wireless carrier. Additionally, you authorize our service providers, debt collectors, collection attorneys, and other third parties working for us to contact you using these methods. You also agree that we may monitor and/or record our calls with you.

(b)       Consent to Receive Marketing Offers. You authorize and give your prior express written consent for us to contact you by telephone, electronic mail, SMS, direct drop voicemail or other technologies, at any phone number or address you provide to inform you of products and services that we think may be of interest to you. Your authorization will remain in effect until you revoke it and is not a condition of obtaining financing from Lender. You can opt out of receiving calls and messages from us by contacting customer support through the chat functionality in your account on the BILL Services. Further, you consent to our use of automatic telephone dialing systems and/or prerecorded or artificial voice messages to present products and services that we think may be of interest to you. Further, you authorize such contact to a wireless telephone number which may result in charges to you from your wireless carrier. Additionally, you authorize our service providers, and other third parties working for us to contact you using these methods.

(c)         Consent to Monitor. You expressly authorize us to monitor and record your calls with us.

29.       Other Notices. Unless otherwise specified herein, all notices and other communications delivered to Borrower or Lender hereunder (whether or not required to be delivered hereunder) shall be deemed to be sufficient and duly given if contained in a written instrument (a) personally delivered, (b) sent by nationally recognized overnight courier guaranteeing next business day delivery or (c) sent by first class registered or certified mail, postage prepaid, return receipt requested, sent to the address set forth in this Agreement or such other address as Borrower or Lender may hereafter specify in writing for this purpose. All such notices, requests and other communications shall be deemed received: (i) if mailed pursuant to (b) or (c) above, upon the earlier of receipt or five (5) business days after deposit in mail, or (ii) if hand-delivered, by courier or otherwise, on the date of receipt by the recipient thereof. In addition, Lender may send notices and communications to Borrower by electronic methods including (x) by transmitting to the email address provided by Borrower or contained in Borrower’s account with the BILL Services, or such other email address as Borrower may specify in writing for this purpose, (y) by posting such notices and communications on a website and sending Borrower a notice to Borrower’s email address to view on such website, or (z) by posting the notices or communications on the Borrower account with the BILL Services. Electronic notices to Borrower will be effective when (i) sent to the Borrower’s email address, (ii) a notice advising of its posting to a website is sent to Borrower’s email address or (iii) a notice is posted in the Borrower’s account on the BILL Services.

Address for notices to Lender:

WebBank
c/o Bill.com Capital 3, LLC Attention: General Counsel
6220 America Center Drive, Suite 100 San Jose, CA 95002

30.       Arbitration.

By clicking to accept this Agreement, Borrower acknowledges and agrees that, at the election of either Borrower or Lender, all Claims under this Agreement will be resolved in accordance with the arbitration provisions set forth in this section instead of litigated in court. This section shall survive termination of this Agreement.

(a)   Definitions of Claim. The term Claim means any claim, dispute, or controversy between Borrower and Lender arising from or relating to the Line of Credit or this Agreement, as well as any related or prior agreement, or the relationships resulting from this Agreement, including the validity, construction, interpretation, performance, termination, breach, or enforceability or scope of the Agreement or this arbitration provision. Claims arising in the past, present, or future, including Claims arising before the execution of this Agreement or after termination of this Agreement, are subject to arbitration. Claim includes, without limitation, claims that arise from or relate to any application for this Line of Credit, any advertisements, promotions, or statements related to your Line of Credit, any transaction between Borrower and Lender relating to this Agreement, or any collection or enforcement of any obligation relating to the Indebtedness or this Agreement. For purposes of this Arbitration provision any reference to Borrower or Lender also includes its corporate affiliates, predecessors, successors, assigns, any purchaser of any accounts, all agents, employees, directors, and representatives of any of the foregoing, Servicer, and other persons referred to below in the definition of Claims. Claim includes claims of every kind and nature, including but not limited to initial claims, counterclaims, crossclaims, third-party claims, and claims based upon contract, tort, fraud, and other intentional torts, statutes, regulations, common law, and equity. Claims and remedies sought as part of a class action, private attorney general action, or other representative action are subject to arbitration on an individual (non-class, non-representative) basis, and the arbitrator may award relief only on an individual (non-class, non-representative) basis. Claim also includes claims by or against any third party relating to or arising from any Indebtedness or this Agreement. The term Claim is to be given the broadest possible meaning that will be enforced. Administrator means the American Arbitration Association, 120 Broadway, Floor 21, New York, NY 10271, www.adr.org, (800) 778-7879; or JAMS, 18881 Von Karman Ave., Suite 350, Irvine, CA 92612, www.jamsadr.com, (949) 224-1810.

(b)  Right to Elect Arbitration. Lender OR Borrower has the right to require that each Claim be resolved by arbitration on an individual (non-class, non-representative) basis. A Claim will be arbitrated if (1) both Lender and Borrower or (2) only one or the other of Lender or Borrower, exercise the right to require that the Claim be arbitrated. If, for example, Lender exercises the right to require that the Claim be resolved by arbitration, but Borrower does not also exercise the right to require that the Claim be arbitrated, the Claim will be resolved by arbitration. If neither Lender nor Borrower requests arbitration, the Claim will not be resolved by arbitration and instead will be litigated in court. Lender will not elect arbitration for any Claim that Borrower files in small claims court, so long as the Claim is individual and pending only in that court. The arbitrator’s authority to resolve Claims is limited to Claims between Borrower and Lender alone, and the arbitrator’s authority to make awards or decisions is limited to Borrower and Lender alone. Furthermore, Claims between Borrower and Lender may not be joined or consolidated in arbitration with Claims brought by or against someone other than Borrower, unless otherwise agreed to in writing by all parties. However, borrowers and co-borrowers on a single Line of Credit, or corporate affiliates, are considered one person for the purposes of this paragraph. No arbitration award will have any preclusive effect as to issues or claims in any dispute involving anyone who is not a party to the arbitration. This arbitration provision is made pursuant to a transaction involving interstate commerce and will be governed by the Federal Arbitration Act (“FAA”) (9 U.S.C. § 1, et seq.).

(c)   No Jury Trial or Class Claims. If Lender or Borrower requests arbitration of a Claim, Lender and Borrower will not have the right to litigate the Claim in court. This means (1) there will be no jury trial on the Claim, (2) there will be no pre-arbitration discovery except as the Administrator’s rules permit, and (3) no Claim may be arbitrated on a class-action, private attorney general, or other representative basis, and neither Lender nor Borrower will have the right to participate as a representative or member of any class or group of claimants pertaining to any Claim subject to arbitration. Lender or Borrower may elect to arbitrate any Claim at any time unless it has been filed in court and trial has begun or final judgment has been entered.

(d)  Notice. If Borrower intends to seek arbitration or file a lawsuit, you must first send a signed written notice (“Notice”) of Borrower’s claim or dispute to Lender by certified U.S. Mail or by Federal Express (signature required) in accordance with Section 26, ATTN: Legal. The Notice must describe: (a) the nature and basis of the claim or dispute; and (b) the remedy that Borrower wants (“Demand”). If Lender intends to seek arbitration, Lender must send Notice to Borrower at the address listed in Borrower's account on the BILL Services. The parties agree to make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement within thirty (30) Days after a Notice is received, the party which provided the Notice may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by either party must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.

(e)   Initiation of Arbitration. The party initiating an arbitration shall select an Administrator from the organizations listed above. If none of the Administrators listed above will accept the arbitration, the arbitration will be administered by an administrator, or adjudicated by an arbitrator, upon which Borrower and Lender agree in writing. The arbitration shall be governed by the procedures and rules of the Administrator and this Agreement, which need not apply federal, state, or local rules of procedure and evidence. The Administrator’s procedures and rules may limit the discovery available to you or us. You can obtain a copy of an Administrator’s procedures and rules by contacting the Administrator as set forth above. A single, neutral arbitrator will resolve Claims. The arbitrator will be either a lawyer with at least ten years’ experience or a retired or former judge, selected in accordance with the rules of the Administrator. In the event of any conflict or inconsistency between this arbitration provision and the Administrator’s rules or other provisions of this Agreement, this arbitration provision will govern. The arbitrator will take reasonable steps to protect customer account information and other confidential information if requested to do so by Borrower or Lender. Arbitration hearings for Claims by or against you will take place in the federal judicial district in which you reside. Borrower and Lender agree that the arbitrator may appear and preside telephonically or electronically at such hearings and that any party may also appear and participate telephonically or electronically. If the value of the relief sought is $10,000 or less, Borrower or Lender may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on Borrower and Lender subject to the arbitrator’s discretion to require an in- person hearing if the circumstances warrant. Unless applicable law requires otherwise, Lender will pay its, and Borrower will pay its, lawyers’, experts’, and witnesses’ fees. The arbitrator will apply applicable substantive law consistent with the FAA and applicable statutes of limitations, will honor claims of privilege recognized at law, and will have the power to award to a party any damages or other relief provided for under applicable law. The arbitrator will make any award in writing and, if requested by you or us, will provide a brief statement of the reasons for the award.

(f)   Arbitration Award and Appeals. Judgment upon the arbitrator’s award may be entered in any court with jurisdiction. The arbitrator’s decision regarding any claims will be final and binding, except for any appeal right under the FAA. The appealing party will pay the appeal costs. This agreement to arbitrate shall survive any suspension, termination, revocation or closure of the Agreement or Borrower’s account, and any bankruptcy to the extent consistent with applicable bankruptcy law.

(g)  Enforcement of this Provision. If any part of this arbitration provision cannot be enforced, the rest of the arbitration provision will continue to apply. However, an arbitrator cannot enlarge his or her authority over the adjudication of Claims beyond that provided by this arbitration provision by enforcing only part of this arbitration provision. If an arbitrator determines that applicable law requires this arbitration provision to be enforced in a way that would result in greater authority over Claims than otherwise allowed, such as the adjudication of claims on a class or representative basis, then the arbitrator must decline to hear the dispute and shall refer the parties to a court or other body with sufficient authority. In the event of any conflict or inconsistency between this arbitration provision and the Administrator's rules or other provisions of this Agreement, this arbitration provision will govern.

31.       Limitation of Liability. IN NO EVENT SHALL LENDER BE LIABLE TO YOU, YOUR ORGANIZATION OR INDIVIDUAL, ANY USER, OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR THIS LINE OF CREDIT, FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL DAMAGES, LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT LENDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE. LENDER WILL NOT BE LIABLE FOR ATTORNEYS’ FEES, EXCEPT AS REQUIRED BY LAW.

NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT SHALL LENDER’S AGGREGATE LIABILITY TO YOU, YOUR ORGANIZATION OR INDIVIDUAL, ANY USER, OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR LINE OF CREDIT EXCEED THE TOTAL INDEBTEDNESS OR ONE HUNDRED DOLLARS ($100.00), WHICHEVER IS GREATER, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.

Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is intended to and does allocate the risks between the parties under this Agreement. Each of these provisions is severable and independent of all other provisions of this Agreement. All limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies will remain fully valid, effective, and enforceable in accordance with their respective terms, even under circumstances that cause an exclusive remedy to fail its essential purpose. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES, LIABILITY OR CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, IN THOSE JURISDICTIONS, SOME OF THESE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY.

32.       Electronic Documents. Electronic records and signatures may be used in connection with the execution of this Agreement and related documents, at Lender's discretion. This Agreement and related documents may be executed and delivered electronically. This Agreement shall become effective when executed by Borrower and the Line of Credit is approved by Lender, which approval shall be provided in Lender’s sole and absolute discretion.
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33.       Termination of this Agreement.  Borrower may terminate this Agreement upon prior written or electronic notice of at least fifteen (15) Days if Borrower has paid the Total Indebtedness in full.  Lender may terminate this Agreement at any time in its sole discretion upon written or electronic notice.  All rights and obligations accrued prior to the termination of this Agreement shall survive termination. Without limiting the foregoing, if any Indebtedness remains outstanding upon termination of this Agreement, Borrower remains obligated to pay the Total Indebtedness in full.