Exhibit 10.4
OFFER SUMMARY – REVENUE BASED FINANCING
Funding Provided | $487,058.00 | This is how much funding CLOUDFUND LLC will provide. Due to deductions or payments to others, the total funds that will be provided to you directly is $487,058.00. For more information on what amounts will be deducted, please review the attached document “Itemization of Amount Financed.” The total funds provided to you directly may change if the amounts needed to pay toward or satisfy other obligations changes between when we prepared this disclosure and funding. |
Estimated Annual Percentage Rate (APR) | 123.51 % | APR is the estimated cost of your financing expressed as a yearly rate. APR incorporates the amount and timing of the funding you receive, fees you pay, and the periodic payments you make. This calculation assumes your estimated average monthly income through sales of goods and services will be $1,719,555.33. Since your actual income may vary from our estimate, your effective APR may also vary.
APR is not an interest rate. The cost of this financing is based upon fees charged by CLOUDFUND LLC rather than interest that accrues over time. |
Finance Charge | $213,154.00 | This is the dollar cost of your financing. |
Estimated Total Payment Amount | $700,212.00 | This is the total dollar amount of payments we estimate you will make under the contract. |
Estimated Monthly Cost | $95,028.77 | Although you do not make payments on a monthly basis, this is our calculation of your average monthly cost based upon the payment amounts disclosed below. |
Estimated Payment | $21,881.63/week |
Payment Terms | Each week, the Estimated Payment will be debited from your business bank account.
The Estimated Payment is based on 5 % of your estimated daily business receipts. There is not a fixed payment schedule and there is no minimum payment amount.
You have the right to obtain a refund if you demonstrate that your payments exceed 5% of your actual business receipts during any given month. For more details on your rights, see Section 10 and 11 of your contract. |
Estimated Term | 224 days | Based on assumptions we made about your income, this is our estimate of how long it will take to collect amounts due to us under your contract. |
Prepayment | If you pay off the financing faster than required, you still must pay all or a portion of the finance charge, up to $213,154.00 based upon our estimates. | |
If you pay off the financing faster than required, you will not be required to pay additional fees. |
Applicable law requires this information to be provided to you to help you make an informed decision. By signing below, you are confirming that you received this information.
Recipient Signature Date
ITEMIZATION OF AMOUNT FINANCED | |
1. Amount Given Directly to You | $487,058.00 |
2. Origination, Due Diligence, and UCC Fees (includes a $12,177.60 broker fee paid to [James McNeil LLC]) | $20,342.00 |
3. Amount paid on your behalf to third parties (3a + 3b + 3c) | $0.00 |
3a. | |
3b. | |
3c. | |
4. Amount Paid on Your Account with Us (# ) |
|
5. Amount Provided to You or on Your Behalf (1+2+3+4) | $507,400.00 |
6. Prepaid Finance Charges: Origination, Due Diligence, and UCC Fees | $20,342.00 |
7. Amount Financed (5 minus 6) | $487,058.00 |
CLOUDFUND LLC
400 Rella Blvd. Suite 165-101, Suffern, NY 10901
FUTURE RECEIPTS SALE AND PURCHASE AGREEMENT
This agreement (this “Agreement”), dated 3/14/2023, between CLOUDFUND LLC (“Buyer”) and the seller(s) listed herein (collectively, the "Seller”) (all capitalized terms shall have the meanings ascribed to them below):
Business Legal Name: EMMAUS LIFE SCIENCES INC. and the entities listed on "Exhibit B"
D/B/A: EMMAUS MEDICAL and the entities listed on "Exhibit B"
Form of Business Entity: Corporation EIN #: 87-0419387 Physical Address: 21250 HAWTHORNE BLVD SUITE 80, TORRANCE, CA 90503 Mailing Address: 21250 HAWTHORNE BLVD SUITE 80, TORRANCE, CA 90503
Purchase Price: | Purchased Amount: | Specified Percentage: |
$507,400.00 | $700,212.00 | 5 % |
Remittance Amount:* $21,881.63 |
| Remittance Period: Weekly |
| Less Closing Costs: |
|
Due Diligence Fee: | Origination fee: | UCC FEE: |
$5,074.00 | $15,222.00 | $46.00 |
| LESS PRIOR BALANCE(S) (IF APPLICABLE) $0.00 |
|
| NET AMOUNT FUNDED TO SELLER: $487,058.00 |
|
FOR THE SELLER #1 FOR THE SELLER #2
By: By:
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Name: YUTAKA NIIHARA
Title: Owner/Agent/Manager
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Name: N/A
Title: N/A
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Email: Email: N/A
Business Phone: Business Phone: N/A
*Please refer to Section 13 of this Agreement to learn how the Remittance Amount can be changed.
Concurrently with the execution of this Agreement by Seller, and as condition to the effectiveness hereof, Seller has caused the Personal Guarantee of Performance in the form attached hereto as “Exhibit A” (the “Guaranty”) to be signed and delivered to Buyer by the following Owner(s)/Guarantor(s) of Seller.
OWNER/GUARANTOR #1 OWNER/GUARANTOR #2
By: By:
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Name: YUTAKA NIIHARA
SSN:
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Name: N/A
SSN: N/A
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Phone: Phone: N/A
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Address:
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Address: N/A
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Furthermore, in the event the Seller and/or Guarantor are comprised of more than one entity and/or individuals, then
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ALL such entities and/or individuals, respectively, shall sign the Addendum to this Agreement in the form attached hereto as Exhibit B (the “Addendum”).
WHEREAS, Seller is desirous to sell to Buyer, and Buyer is desirous to purchase from Seller a Specified Percentage of the Seller’s Future Receipts, but only on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the mutual receipts and sufficiency of which is hereby acknowledged by both parties, Buyer and Seller hereby agree to the foregoing and as follows:
Period.
Seller shall be under obligation to deliver to Buyer pursuant to this Agreement.
m “Origination Fee” shall mean the fee that Seller and a Broker have agreed to in conjunction with brokering this Agreement, which amount Seller authorizes Buyer to withhold from the Purchase Price and pay to said Broker. The Origination Fee, if any, is described in Section 17 of this Agreement and will be deducted from the Purchase Price prior to delivering it to Seller pursuant to Seller’s authorization set forth in Section 19.
n. In the event “Seller” is comprised of more than one entity, then:
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o. In the event “Guarantor” is comprised of more than one individual, then:
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Purchased Amount (the “ACH Authorization”). This ACH Authorization shall be irrevocable until such time when Seller shall have performed its obligations under this Agreement in full. Seller acknowledges that the origination of ACH entries to and from the Approved Bank Account must comply with applicable law and applicable network rules. Seller agrees to be bound by the Rules and Operating Guidelines of NACHA . Seller will not dispute any ACH entry initiated pursuant to this ACH Authorization, provided the transaction corresponds to the terms of this authorization. Seller requests the financial institution that holds the Approved Bank Account to honor all ACH entries initiated in accordance with this ACH Authorization. If requested by Buyer, Seller shall execute a separate authorization for Buyer and/or Delta Bridge Funding LLC to arrange for electronic fund transfers (including ACH payments) in the amount of any Remittance Amount from the Approved Bank Account. Seller shall provide Buyer and/or its authorized agent with all information, authorizations and passwords necessary to verify Seller’s receivables, receipts and deposits into the Approved Bank Account.
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request for Adjustment. The Adjustment shall become effective as of the date it is performed and the Adjusted Remittance Amount shall replace and supersede the amount of the initial Remittance Amount first described above for thirty (30) days from and including the date it is granted. Upon the expiration of such 30-day period the amount of the Remittance Amount shall automatically revert back to the amount of the initial Remittance Amount, absent an additional request for Adjustment at the expiry of the 30-day period pursuant to this Section 12.
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REPRESENTATIONS, WARRANTIES AND COVENANTS
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portion of Seller’s Future Receipts from the Approved Bank Account or Approved Processor without Buyer’s written consent.
Buyer.
for personal, family or household purposes.
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and business matters in general and with respect to transactions of a nature similar to the one contemplated by this Agreement so as to be capable of evaluating the merits and risks of, and making an informed business decision with regard to, Seller entering into this Agreement.
EVENTS OF DEFAULT AND REMEDIES
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the ACH Authorization; (e) Seller changes its depositing account or its payment card processor without the prior written consent of Buyer; (f) Seller defaults under any other agreement with Buyer, or breaches any of the terms, covenants and conditions of any other agreement with Buyer, or (g) Seller causes two (2) or more ACH transactions attempted by Buyer during any thirty-day period during the term of this Agreement to be rejected by Seller’s bank.
(i) or clause (ii) above; (iv) to sign Seller’s name on any invoice, bill of lading, or assignment directing customers or account debtors, as that term is defined by Article 9 of the UCC (“ Account Debtors”), to make payment directly to Buyer (including providing information necessary to identify Seller); and (v) to file any claims or take any action or institute any proceeding which Buyer may deem necessary for the collection of any of the undelivered Purchased Amount, or otherwise to enforce its rights with respect to collection of the Purchased Amount.
ADDITIONAL TERMS
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MISCELLANEOUS
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without prior notice to the Seller. Seller shall not assign its rights or obligations under this Agreement without first obtaining Buyer’s written consent.
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PARTY INITIATING THE ARBITRATION SHALL PAY ANY ARBITRATION FILING FEE, ADMINISTRATION FEE AND ARBITRATOR’S FEE. FURTHER, BUYER, SELLER AND ANY GUARANTOR AGREE THAT IN THE EVENT THE ARBITRATION HAS COMMENCED, THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS FOR MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISION DEALING WITH THE PROHIBITION ON CONSOLIDATED, CLASS OR AGGREGATED CLAIMS IS FOUND UNENFORCEABLE, THEN THE ENTIRETY OF THIS ARBITRATION CLAUSE SHALL BE NULL AND VOID. THIS AGREEMENT TO ARBITRATE IS GOVERNED BY THE FEDERAL ARBITRATION ACT AND NOT BY ANY STATE LAW REGULATING THE ARBITRATION OF DISPUTES. THIS AGREEMENT IS FINAL AND BINDING EXCEPT TO THE EXTENT THAT AN APPEAL MAY BE MADE UNDER THE FAA. ANY ARBITRATION DECISION RENDERED PURSUANT TO THIS ARBITRATION AGREEMENT MAY BE ENFORCED IN ANY COURT WITH JURISDICTION. THE TERMS “DISPUTES” AND “CLAIMS” SHALL HAVE THE BROADEST POSSIBLE MEANING.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written.
FOR THE SELLER FOR THE SELLER
By: By:
Name: YUTAKA NIIHARA Name: N/A
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Title: Owner/Agent/Manager
EIN:
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Title: N/A
EIN: N/A
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AGREE TO BE BOUND BY THE PROVIONS OF THIS AGREEMENT APPLICABLE TO AND CONCERNING GUARANTOR
OWNER/GUARANTOR #1 OWNER/GUARANTOR #2
By: By:
Name: YUTAKA NIIHARA Name: N/A
SSN: SSN: N/A
CLOUDFUND LLC
By:
Name: Title:
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EXHIBIT A
PERSONAL GUARANTY OF PERFORMANCE
This Personal Guaranty of Performance (this “Guaranty”) is executed as of 3/14/2023, by the undersigned individual(s) whose name(s) and signature(s) appear in the signature box of this Guaranty (individually and collectively, jointly and severally, “Guarantor”) for the benefit of CLOUDFUND LLC (“Buyer”).
WHEREAS:
THE SELLER:
Legal Business Name: EMMAUS LIFE SCIENCES INC. and the entities listed on "Exhibit B"
D/B/A: EMMAUS MEDICAL
NOW, THEREFORE, as an inducement for Buyer to enter into the Agreement, and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, Guarantor does hereby agree as follows:
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Furthermore, Guarantor unconditionally covenants to Buyer that if default or breach shall at any time be made by Seller in the Guaranteed Obligations, Guarantor shall well and truly perform (or cause to be performed) the Guaranteed
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Obligations and pay all damages and other amounts stipulated in the Agreement with respect to the non-performance of the Guaranteed Obligations, or any of them.
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directly or indirectly, out of or related to this Guaranty. The parties stipulate that the venues referenced in this Agreement are convenient. The parties further agree that the mailing by certified or registered mail, return receipt requested, of any process required by any such court will constitute valid and lawful service of process against them, without the necessity for service by any other means provided by statute or rule of court, but without invalidating service performed in accordance with such other provisions. Guarantor acknowledges and agrees that the Purchase Price is being paid and received by Seller in New York, that the Specified Percentage of the Future Receipts are being delivered to Buyer in New York, and that the transaction contemplated in this Guaranty was negotiated, and is being carried out, in New York. Guarantor acknowledges and agrees that it is guaranteeing a New York agreement and transaction. Guarantor acknowledges and agrees that New York has a reasonable relationship to this transaction.
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AGREED AND ACCEPTED:
OWNER/GUARANTOR #1: OWNER/GUARANTOR #2:
By: By:
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Name: YUTAKA NIIHARA SSN:
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Name: N/A SSN: N/A
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OWNER/GUARANTOR #3:
By:
Name: N/A SSN: N/A
CLOUDFUND LLC
By:
Name: Title:
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APPENDIX A
ACH Authorization Form
All information on this form is required unless otherwise noted.
Business Authorized to Debit/Credit Account (the “Buyer”)
Authorized Business Name: CLOUDFUND LLC Authorized Business Phone Number: 1-800-770-9525
Authorized Business Address: 400 Rella Blvd. Suite 165-101, Suffern, NY 10901
Business Information (the “Seller”):
Business Name: EMMAUS LIFE SCIENCES INC. Business DBA: EMMAUS MEDICAL
Business Phone: (310) 430-9496
Account Holder Address: 21250 HAWTHORNE BLVD SUITE 80, TORRANCE, CA 90503
Account Holder’s Bank Information:
Name of Bank:
Bank Routing Number:
Bank Account Number:
Transaction Information:
Amount of Transaction: $21,881.63 Effective Date: 3/14/2023
Rate of collection: Weekly
Authorization:
Pursuant to that certain Future Receipts Sale and Purchase Agreement dated 3/14/2023 between Buyer and Seller (the “Agreement”), Seller authorizes Buyer and/or Delta Bridge Funding LLC, its authorized agent, to electronically draft via the Automated Clearing House system up to the amount(s) indicated above from the account(s) identified above (the “Approved Bank Account”) on or after the Effective Date, and agrees to be bound by the ACH Rules as set forth by NACHA (The Electronic Payments Association). The Undersigned hereby certifies that they are duly authorized to execute this form on behalf of the above listed account holder.
NOTE that this authorization is to remain in full force and effect until Buyer and/or Delta Bridge Funding LLC, its authorized agent, receives written notification from Seller of its termination in such time and in such manner to afford Buyer a reasonable opportunity to act on it; provided, however, that revocation of this authorization prior to remittance of the balance under the Agreement may constitute a breach of the Agreement.
FOR THE SELLER
By:
Date:
Name of Account Holder: YUTAKA NIIHARA Title of Account Holder: OWNER
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EXHIBIT B
ADDENDUM TO
THE FUTURE RECEIVABLES SALE AND PURCHASE AGREEMENT AND GUARANTY
This ADDENDUM TO THE FUTURE RECEIVABLES SALE AND PURCHASE AGREEMENT and GUARANTY (this
“Addendum”), dated 3/14/2023, is entered into by and among CLOUDFUND LLC (“CFL”) and
Business Legal Name: EMMAUS LIFE SCIENCES INC.
D/B/A: EMMAUS MEDICAL
Address: 21250 HAWTHORNE BLVD SUITE 80, TORRANCE, CA 90503
Form of Business Entity: Corporation EIN #: ("Seller #1"); and
Business Legal Name: EMMAUS MEDICAL INC.
D/B/A: EMMAUS MEDICAL
Address: 21250 HAWTHORNE BLVD SUITE 80, TORRANCE, CA 90503
Form of Business Entity: Corporation EIN #: ("Seller #2"); and
Business Legal Name: NEWFIELD NUTRITION CORPORATION
D/B/A: NEWFIELD NUTRITION
Address: 21250 HAWTHORNE BLVD SUITE 80, TORRANCE, CA 90503
Form of Business Entity: Corporation EIN #: ("Seller #3"); and
Business Legal Name: EMI HOLDING INC.
D/B/A: EMI HOLDING
Address: 21250 HAWTHORNE BLVD SUITE 80, TORRANCE, CA 90503
Form of Business Entity: Corporation EIN #: ("Seller #4").
Name: YUTAKA NIIHARA ("Guarantor #1")
Email:
Phone:
Title: Owner/Agent/Manager SSN:
Hereinafter: (i) Seller # 1 is referred to as the "Original Seller"; and (ii) Seller # 2, Seller # 3 and Seller # 4 are referred to, individually and collectively, jointly and severally, as the "Additional Seller"; and (iii) the Original Seller and the Additional Seller are referred to, individually and collectively, jointly and severally, as the "Seller."
Hereinafter, Guarantor # 1 is referred to as the "Original Guarantor."
W-I-T-N-E-S-S-E-T-H
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WHEREAS, CFL, the Original Seller and the Original Guarantor entered into that certain FUTURE RECEIVABLES SALE AND PURCHASE AGREEMENT, dated 3/14/2023 (the “Agreement”); and
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WHEREAS, the obligations of the Original Seller under the Agreement are further guaranteed by the Original Guarantor pursuant to the Personal Guaranty of Performance set forth as Exhibit A to the Agreement (the “Guaranty”); and
WHEREAS, the parties hereto desire to amend and restate the Agreement by adding the name(s) of the Additional Seller as the parties to the Agreement, as if the Additional Seller were the signatories to the Agreement.
NOW, THEREFORE, for good and valuable consideration, the mutual receipts and sufficiency of which is hereby acknowledged, the parties to this Addendum hereby agree to the foregoing and as follows:
IN WITNESS WHEREOF, the parties hereto have executed this Addendum as of the date first above written.
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FOR THE SELLER - EMMAUS LIFE SCIENCES INC., OWNER/GUARANTOR #1 D/B/A EMMAUS MEDICAL, EMMAUS MEDICAL
INC., D/B/A EMMAUS MEDICAL , NEWFIELD NUTRITION CORPORATION, D/B/A NEWFIELD NUTRITION, and EMI HOLDING INC., D/B/A EMI HOLDING
By By
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Name: YUTAKA NIIHARA
Title: Owner/Agent/Manager
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Name: YUTAKA NIIHARA SSN:
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CLOUDFUND LLC:
By:
Name: Title:
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