Exhibit 10.2
APEX FUNDING SOURCE LLC
Tel: {646) 518-1521
Sale of Future Receipts Agreement
Seller’s Legal Name EMMAUS MEDICAL, INC | D/B/A EMMAUS LIFE SCIENCES | Form of Business Entity and State of Incorporation Corporation CA | ||||
Street Address 21250 HAWTHORNE BLVD STE 800 | City, State TORRANCE, CA | Zip 90503 | ||||
Mailing Address
| City, State
| Zip
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Primary Contact Name YUTAKA NIIHARA | Primary Contact Title
| Primary Contact Phone Number
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Seller’s Bank Account Name of Bank: _ ABA Transit/Routing #: Checking Account #: | ||||||
Purchase Price Paid to Seller $ 380,000.00 | Initial Periodic Amount $ 18,864.29 | |||||
Purchased Amount of Future Receipts $ 528,200.00 | What is the Initial Periodic Amount?
The Initial Periodic Amount is an estimate of the Specified Percentage of your average sales revenue. We will debit the Periodic Amount from your Bank Account each Week , subject to your actual revenue. We based the Initial Periodic Amount on information you provided or made available to us to calculate your average revenue over a period of time prior to the date of this Agreement. Please refer to Section 4 of this Agreement for how you can adjust the Periodic Amount. | |||||
Only the terms following a ■ The Specified Percentage will at all times be 4.5 % The initial Specified Percentage will be % until and, and, thereafter will be adjusted to %. | ||||||
Periodic Frequency [daily (Mon. – Fri.), weekly] | ||||||
Purchase Price |
$ 380,000.00 |
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Prior Balance(s) |
- | (If applicable) paid to Buyer and/or third parties | ||||
Wire Fee |
- | (If applicable) | ||||
Origination Fee |
- $ 11,400.00 |
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Net Amount Funded to Seller | $ 368,600.00 |
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This Sale of Future Receipts Agreement (“Agreement”) effective, May, 3 , 2023, is made by and between Apex Funding Source, LLC (“Buyer”), the business identified above (“Seller”), and each Guarantor identified below (each a “Guarantor”).
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In the event that Seller changes or permits changes to the Account or the ACH authorization approved by the Buyer or adds an additional bank account, Buyer shall have the right, without waiving any of its rights and remedies and without notice to Seller or any Guarantor, to notify the new or additional bank of this Agreement and to direct such new or additional bank to remit to the Buyer all or any portion of the amounts received by such bank. Any such new account shall be deemed an Account.
{10) calendar days after Buyer’s reconciliation request, Buyer may adjust the Periodic Amount based on the best information reasonably available to Buyer.
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to (i) enter during regular business hours, without notice, the premises of Seller’s business for the purpose of inspecting and checking Seller’s transaction processing terminals to ensure the terminals are properly programmed to submit and or batch Seller’s daily receipts to the Processor and to ensure that Seller has not violated any other provision of this Agreement, (ii) Seller shall provide access to its employees and records and all other items as requested by Buyer; and
(iii) have Seller provide information about its business operations, banking relationships, vendors, landlord and other information to allow Buyer to interview any relevant parties.
(ii) that such communications and contacts are not unsolicited or inconvenient, and (iii) that any such contact may be made at any phone number, email address, or facsimile number given to Buyer by the Seller, its agents or employees, including cellular telephones.
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and all objections to jurisdiction or venue. Should such proceeding be initiated in any other forum, Seller and Guarantor waive any right to oppose any motion or application made by Buyer to transfer such proceeding to an Acceptable Forum.
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ON AN INDIVIDUAL BASIS. EACH PARTY HERETO WAIVES ANY RIGHT TO ASSERT ANY CLAIMS AGAINST THE OTHER PARTIES AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY. TO THE EXTENT ANY PARTY IS PERMITTED BY LAW OR A COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES AGREE THAT:
(I) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOT WITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT), AND (II) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.
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[Remainder of this page intentionally left blank. Signature page follows.]
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[Signature page]
Agreement of Seller: By signing below Seller agrees to the terms and conditions contained in this Agreement, and further agrees that this transaction is for business purposes.
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Seller:
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Apex Funding Source LLC
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Agreed to by: (Signature), its (Title)
Agreement of Each Guarantor: By signing below each Guarantor agrees to the terms and conditions contained in this Agreement, and further agrees that this transaction is for business purposes.
Notice: This Agreement contains a personal guaranty of performance, and by signing below, you agree that you will be personally liable for the prompt and complete performance of certain obligations of Seller as described in this Agreement.
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Guarantor Name: EMMAUS MEDICAL, INC
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Guarantor Signature:
Signer’s Title
(title completed only if Guarantor is not an individual)
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Guarantor Name: NEWFIELD NUTRITION CORPORATION
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Guarantor Signature:
Signer’s Title
(title completed only if Guarantor is not an individual)
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Guarantor Name: EMI HOLDING, INC.
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Guarantor Signature:
Signer’s Title
(title completed only if Guarantor is not an individual)
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Guarantor Name: EMMAUS MEDICAL, INC.
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Guarantor Signature:
Signer’s Title
(title completed only if Guarantor is not an individual)
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Guarantor Name: EMMAUS LIFE SCIENCES, INC. Guarantor Signature:
Signer's Title
{title completed only if Guarantor is not an individual)
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Guarantor Name:
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Guarantor Signature:
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Signer's Title
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{title completed only if Guarantor is not an individual)
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Appendix A – List of Fees and Charges
The Agreement provides that Seller shall be liable for the following amounts, in addition to the Purchased Amount of Future Receipts:
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AUTHORIZATION AGREEMENT
FOR AUTOMATED CLEARING HOUSE TRANSACTIONS
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Apex Funding Source LLC (“Seller”) hereby authorizes
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EMMAUS MEDICAL, INC
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(“Buyer”) to present
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automated clearing house (ACH) debits to the following checking account in the amount of fees and other payments due to Buyer from Seller under the terms of that Purchase and Sale of Future Receipts Agreement (the “Agreement”) entered into between Seller and Buyer, as it may be amended, supplemented or replaced from time to time. Seller also authorizes Buyer to initiate additional entries (debits and credits) to correct any erroneous transfers. In addition, if Seller breaches the Agreement, Seller authorizes Buyer to debit any and all accounts controlled by Seller or controlled by any entity with the same Federal Tax Identification Number as Seller up to the total amount, including but not limited to, all fees and charges, due to Buyer from Seller under the terms of the Agreement.
Seller agrees to be bound by the Rules and Operating Guidelines of NACHA and represents and warrants that the designated account
is established and used primarily for commercial/business purposes, and not for consumer, family or household purposes. Seller authorizes Buyer to contact Seller’s financial institution to obtain available funds information and/or to verify any information Seller has provided about the designated checking account and to correct any missing, erroneous or out-of-date information. Seller understands and agrees that any revocation or attempted revocation of this Authorization will constitute a breach of the Agreement for the Sale of Future Receipts. In the event that Seller closes the designated checking account, or the designated checking account has insufficient funds for any ACH transaction under this Authorization, Seller authorizes Buyer to contact Seller’s financial institution and obtain information (including account number, routing number and available balance) concerning any other deposit account(s) maintained by Seller with Seller’s financial institution, and to initiate ACH transactions under this Authorization to such additional account(s). To the extent necessary, Seller grants Buyer a limited Power of Attorney to take action in Seller’s name to facilitate this authorization.
Transfer Funds To/From: Name of Bank:
ABA Transit/Routing #:
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Checking Account #:
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This authorization is to remain in full force and effect until Buyer has received all amounts due or that may become due to Buyer under the Agreement.
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Seller Information: Seller’s Name:
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EMMAUS MEDICAL, INC
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Signature of Authorized Representative:
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Print Name: Title:
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YUTAKA NIIHARA
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Seller’s Tax ID:
Date: May 3, 2023
[Attached Voided Check Here]
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APEX FUNDING SOURCE LLC
Early Delivery and Performance Offer
Apex Funding Source LLC (“Apex”, “we” “us”) is offering EMMAUS MEDICAL, INC discount for early delivery and performance under your Sale of Future Receipts Agreement (the “Agreement”).
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Pursuant to your Agreement with us, we have purchased a total of $ 528,200.00 of your Future Receipts (the “Purchased Amount”) and you have agreed to deliver those Future Receipts in periodic amounts as described in the Agreement.
However, you may also elect to deliver the Purchased Amount to us on an accelerated basis in a discounted amount. We call this the “Discounted Purchase Amount”.
If you pay us a Discounted Purchase Amount of _$ 437,000.00 on or before 30 Calendar Days , we will accept the Discounted Purchase Amount in full satisfaction of your contractual obligations under the Agreement.
If you pay us a Discounted Purchase Amount of $ 456,000.00 on or before 90 Calendar Days , we will accept the Discounted Purchase Amount in full satisfaction of your contractual obligations under the Agreement.
This Early Delivery and Performance Offer will be unavailable and is withdrawn if:
Please note that your Agreement also provides you with the ability to adjust the periodic amount you remit to us. Refer to Section 4 of this Agreement to learn how you can request an adjustment to the periodic amount.
Please sign below to acknowledge your receipt of this Early Delivery and Performance Offer
EMMAUS MEDICAL, INC
:
Agreed to by: (Signature), its (Title)
OFFER SUMMARY – PURCHASE OF FUTURE RECEIPTS
Funding Provided | $380,000 | This is how much funding Apex Funding Source LLC will provide. Due to deductions or payments to others, the total funds that will be provided to you directly is $368,600. 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) | 138.94% | 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 $1,929,345.14 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 Apex Funding Source LLC rather than interest that accrues over time. |
Finance Charge | $159,600 | This is the dollar cost of your financing. |
Estimated Total Payment Amount | $528,200 | This is the total dollar amount of payments we estimate you will make under the contract. |
Estimated Monthly Cost | $84,889.30 | 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 | $18,864.29/each week |
Payment Terms | We based your Estimated Payment of $18,864.29 on 4.5% of your estimated daily sales revenue. This financing does not have a fixed payment schedule and there is no minimum payment amount. Because we cannot predict the exact dollar amount of sales revenue your | |
| business will collect in the future, your periodic payment is “Estimated.”
You have the right to lower the periodic payment amount to better reflect 4.5% of your actual sales revenue. For more details on your right to change the payment amount, see Section 4 of your contract.
We will debit your business bank account each week. If a debit is scheduled for a bank holiday, the payment will be debited the next business day, plus the regularly scheduled payment scheduled for that day. | |
Estimated Term | 210 Calendar 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 $159,600 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.
05/03/2023
Signature Date
Recipient
ITEMIZATION OF AMOUNT FINANCED | |
1. Amount Given Directly to You |
$368,600 |
2. Origination Fee |
$11,400 |
3. Wire Fee |
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4. Amount paid on your behalf to third parties (4a + 4b + 4c) | $0 |
4a. [name of third party] $ | |
4b. [name of third party] $ | |
4c. [name of third party] $ | |
5. Amount Paid on Your Account with Us |
$0.00 |
6. Amount Provided to You or on Your Behalf (1 + 2 + 3+4+5) | $380,000 |
7. Prepaid Finance Charges: | $11,400 |
7a. Origination Fee | |
7b. Wire Fee |
8. Amount Financed (6 minus 7) |
$368,600 |