Exhibit 10.1
Agreement for the Purchase and Sale of Future Receipts
Seller's Legal Name: EMMAUS MEDICAL, INC.
D/B/A:EMMAUS MEDICAL
Form of Business Entity: [ ] Corporation; [ ] Limited Liability Company; [ ] Partnership; [ ] Limited Partnership; [ ] Limited Liability Partnership; [ ] Sole Proprietorship; [ ] Other:
Street Address: 21250 HAWTHORNE BLVD STE 800
City: TORRANCE
State: CA
Zip: 90503
Mailing Address:251 LITTLE FALLS DRIVE City: WILMINGTON State: DE
Zip 19808
Primary Contact: Title: _ _ Time in Business: Purchase Price: $1,100,000.00 Purchased Amount: $1,628,000.00
Average Projected Monthly Sales: $2,253,767.04
Federal Tax ID:
06-1708146
Specified Percentage: 15 % (Average Projected Monthly Sales x Specified Percentage / Average Business Days in a Calendar Month)
Initial Weekly Amount: $58,142.86 Origination Fee: $99,000.00 (to be deducted from the Purchase Price)
Payment will be withdrawn every _Mo_n_da_y
Account for the Deposit of All Future Receipts: Bank: CALIFORNIA BANK & TRUST
Account No:
May 01, 2024
Effective, Seller, identified above, hereby sells, assigns and transfers to AGILE CAPITAL FUNDING, LLC (“Buyer” or
"Agile Capital Funding") located at 104 E 25th St, Suite 1001, New York, NY 10010 without recourse, the Specified Percentage of the proceeds of each future sale made by Seller (collectively “Future Receipts”) until Seller has received the Purchased Amount. “Future Receipts” includes all payments made by cash, check, ACH or other electronic transfer, credit card, debit card, bank card, charge card (each such card shall be referred to herein as a “Payment Card”) or other form of monetary payment in the ordinary course of Seller’s business. As payment for the Purchased Amount, Buyer will deliver to Seller the Purchase Price, shown above, minus any Origination Fee shown above. Seller acknowledges that it has no right to repurchase the Purchased Amount from Buyer.
Both parties agree that the obligation of Buyer under this Agreement will not be effective unless and until Buyer has completed its review of the Seller and has accepted this Agreement by delivering the Purchase Price, minus any Origination Fee. Prior to accepting this Agreement, Buyer may conduct a processing trial to confirm its access to the Account and the ability to withdraw the Initial Daily Amount If the processing trial is not completed to the satisfaction of Buyer, Buyer will refund to Seller all funds that were obtained by Buyer during the processing trial.
Agreement of Seller: By signing below Seller agrees to the terms and conditions contained in this Agreement, including those terms and conditions on the following pages, and further agrees that this transaction is for business purposes and not for personal, family, or household purposes.
Seller: EMMAUS MEDICAL, INC.
Agreed to by: (Signature), its Authorized Representative (Title)
WILLIS C. LEE
Name:
Agreed to by: (Signature), its Authorized Representative (Title)
Name: Buyer: Agile Capital Funding
Agreed to by: (Signature), its CFO (Title)
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Agreement of Each Seller: Each Seller signing below agrees to the terms of the Credit Report Authorization below.
Seller: EMMAUS MEDICAL, INC.
Agreed to By: (Signature); Name: WILLIS C. LEE
Authorized Representative
(Title)
borrowing money from Buyer. There is no interest rate or payment schedule and no time period during which the Purchased Amount must be collected by Buyer. If Future Receipts are remitted more slowly than Buyer may have anticipated or projected because Seller’s business has slowed down, or if the full Purchased Amount is never remitted because Seller’s business went bankrupt or otherwise ceased operations in the ordinary course of business, and Seller has not breached this Agreement, Seller would not owe anything to Buyer and would not be in breach of or default under this Agreement. Buyer is buying the Purchased Amount of Future Receipts knowing the risks that Seller’s business may slow down or fail, and Buyer assumes these risks based on Seller’s representations, warranties and covenants in this Agreement that are designed to give Buyer a reasonable and fair opportunity to receive the benefit of its bargain. By this Agreement, Seller transfers to Buyer full and complete ownership of the Purchased Amount of Future Receipts and Seller retains no legal or equitable interest therein. Seller agrees that it will treat Purchase Price and Purchased Amount in a manner consistent with a sale in its accounting records and tax returns. Seller agrees that Buyer is entitled to audit Seller’s accounting records upon reasonable Notice in order to verify compliance. Seller waives any rights of privacy, confidentiality or tax payer privilege in any such litigation or arbitration in which Seller asserts that this transaction is anything other than a sale of future receipts.
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(vi) to contact any Processor of Seller and to direct such Processor(s) to deliver directly to Buyer all or any portion of the amounts received by such Processor(s) and to provide any information regarding Seller requested by Buyer. Each Processor may rely on the previous sentence as written authorization of Seller to provide any information requested by Buyer. Each Processor is hereby irrevocably authorized and directed by Seller to follow any instruction of Buyer without inquiry as to Buyer’s right or authority to give such instructions. Seller acknowledges the terms of the preceding sentence and agrees not to (a) interfere with Buyer’s instructions or a Processor’s compliance with this Agreement or (b) request any modification thereto without Buyer’s prior written consent. Notwithstanding anything to the contrary herein, the power of attorney shall only be effected thirty (30) days after an Event of Default under this Agreement.
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the Purchased Amount and all fees and cost contemplated under this Agreement, wherever located, and related proceeds now or hereafter owned or acquired by Seller.
Seller authorizes Buyer to file one or more UCC-1 forms consistent with the Uniform Commercial Code (“UCC”) in order to give notice of this security interest and that the Purchased Amount of Future Receipts is the sole property of Buyer. The UCC filing may state that such sale is intended to be a sale and not an assignment for security and may state that the Seller is prohibited from
obtaining any financing that impairs the value of the Future Receipts or Buyer’s right to collect same. Seller authorizes Buyer to debit
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Doc ID: fd6c00fbdff55c021ea2ed462f91fa8d559a96eb64110b
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Capital Funding, 104 E 25th St, Suite 1001, New York, NY 10010, ATTENTION: LEGAL DEPARTMENT.
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EMMAUS MEDICAL, INC.
Seller:
Agreed to by: (Signature)
WILLIS C. LEE
Name:
Title: Authorized Representative
EMMAUS MEDICAL, INC.
Guarantor:
Agreed to by: (Signature)
WILLIS C. LEE
Name:
Title: Authorized Representative
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GUARANTY OF PERFORMANCE
This Guaranty of Performance (this “Guaranty”) is executed as of
May 01, 2024
, by
EMMAUS MEDICAL, INC.
Capital Funding (“Buyer”) (“Buyer”).
(the “Guarantor”), for the benefit of Agile
Capitalized terms used herein, but not defined, shall have the meanings assigned to them in the Purchase Agreement (as hereinafter defined).
RECITALS
AGREEMENT
As an inducement to Buyer to purchase the Future Receipts identified in the Purchase 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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guaranty. Guarantor acknowledges the Purchase Price paid to Seller is good and valuable consideration for the sale of the Purchased Amount of Future Receipts.
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REIMBURSE SELLER OR THE GUARANTOR ANY ARBITRATION FILING FEE, HOWEVER, IN THE EVENT THAT BOTH SELLER AND THE GUARANTOR MUST PAY FILING FEES, BUYER WILL ONLY REIMBURSE SELLER’S ARBITRATION FILING FEE AND, EXCEPT AS PROVIDED IN THE NEXT SENTENCE, BUYER WILL PAY ALL ADMINISTRATION AND ARBITRATOR FEES. IF THE ARBITRATOR FINDS THAT EITHER THE SUBSTANCE OF THE CLAIM RAISED BY SELLER OR THE GUARANTOR OR THE RELIEF SOUGHT BY SELLER OR THE GUARANTOR IS IMPROPER OR NOT WARRANTED, AS MEASURED BY THE STANDARDS SET FORTH IN FEDERAL RULE OF PROCEDURE 11(B), THEN BUYER WILL PAY THESE FEES ONLY IF REQUIRED BY THE AAA OR NAF RULES. SELLER AND THE GUARANTOR AGREE THAT, BY ENTERING INTO
THIS AGREEMENT, THEY ARE WAIVING THE RIGHT TO TRIAL BY JURY. BUYER, SELLER OR ANY GUARANTOR MAY BRING CLAIMS AGAINST ANY OTHER PARTY ONLY IN THEIR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, BUYER, SELLER AND ANY GUARANTOR AGREE THAT 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 IS FOUND UNENFORCEABLE, THEN THE ENTIRETY OF THIS ARBITRATION CLAUSE SHALL BE NULL AND VOID.
Agile Capital Funding 104 E 25th St, Suite 1001, New York, NY 10010 ,
ATTENTION: LEGAL DEPARTMENT.
KNOWN ADDRESS SHALL BE SUFFICIENT. GUARANTOR WILL HAVE (30) CALENDAR DAYS AFTER SERVICE HEREUNDER IS COMPLETE IN WHICH TO RESPOND. FURTHERMORE, GUARANTOR EXPRESSLY CONSENTS THAT ANY AND ALL NOTICE(S), DEMAND(S), REQUEST(S) OR OTHER COMMUNICATION(S) UNDER AND PURSUANT TO THIS AGREEMENT FOR THE PURCHASE AND SALE OF FUTURE RECEIVABLES SHALL BE DELIVERED IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT FOR THE PURCHASE AND SALE OF FUTURE RECEIVABLES.
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Corporate Guarantors (or other entities)
Guarantor: (Print Name) By:
Print Name or Signer: Its: (Official Position)
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AUTHORIZATION AGREEMENT
FOR AUTOMATED CLEARING HOUSE TRANSACTIONS
EMMAUS MEDICAL, INCseller”) here by authorizes Agile Capital Funding (“Buyer”) (“Buyer”) to present automated clearing house (ACH) debits to the following checking account in the amount of fees and other obligations due to Buyer from Seller under the
terms of that Agreement for the Purchase and Sale of Future Receipts (the “Agreement”) entered into between Seller and Buyer, as it may be amended, supplemented or replaced from time to time. In addition, if an Event of Default (as defined in the Agreement) occurs, 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.
Transfer Funds To/From: Name of Bank:
California Bank & Trust
ABA Transit/Routing :
Checking Account :
This authorization is to remain in full force and effect until all obligations due to Buyer under the Agreement have been fulfilled. Seller Information:
Seller s Name: EMMAUS MEDICAL, INC.
Signature of Authorized Representative:
WILLIS C. LEE
Print Name:
Title: AUTHORIZED REPRESENTATIVE
Seller s Tax ID:
06-1708146
Date:
05 / 01 / 2024
[Attached Voided Check Here]
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Dear Seller,
Please fill out the form below with the access information for your bank account, please write legibly and indicate lower/upper case sensitivity.
Legal Name/DBA: Emmaus Medical, Inc.
https://singlepoint.usbank.com/cs70_bank
Bank portal Website:
Username:
Password:
Security Question/Answer 1:
Security Question/Answer 2:
Security Question/Answer :3
Security Question/Answer 4:
Security Question/Answer 5:
Security Question/Answer :6
Any other information necessary to access your account:
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THIS FORM MUST BE FILLED OUT BEFORE FUNDING.
Dear Seller,
Please fill out the form below with contact information and reference.
Contact Information
Guarantor Name:
Emmaus Medical, Inc.
Phone Number:
Email:
Personal Reference #1
Name:
Phone Number:
Personal Reference #2
Name:
Phone Number:
Business Reference #1
Company Name:
Contact Name:
Business Phone:
Business Reference #2
Company Name:
Contact Name:
Business Number:
Emergency Contact
Name:
Relationship:
Phone Number:
Email:
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Agile Capital Funding 104 E 25th St, Suite 1001 New York, NY 10010
NO STACKING ADDENDUM
Addendum (the “Addendum”) to the Purchase and Sale of Future Receivables Agreement (the “Agreement”) by: Seller(s):
EMMAUS MEDICAL, INC.
Purchaser: Agile Capital Funding (“Purchaser”)
Purchase Price: $
_1,100,000.00
Purchased Amount: $1,628,000.00
Specified Percentage: 15%
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Agreed and Accepted on behalf of Seller:
Seller:
EMMAUS MEDICAL, INC.
Agreed to by: (Signature)
WILLIS C. LEE
Name:
Title: Authorized Representative
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Additional Seller Addendum to Purchase Agreement
Buyer | AGILE CAPITAL FUNDING LLC |
Original Seller | EMMAUS MEDICAL, INC. Address: 21250 Hawthorne Bl 800, Torrance, CA 90503 EIN: 06-1708146 |
Additional Seller(s) | EMMAUS LIFE SCIENCES, INC. Address: 21250 Hawthorne Bl 800, Torrance, CA 9
EIN:_87-0419387 |
Additional Seller(s) | EMI HOLDING, INC. Address: 21250 Hawthorne Bl 800, Torrance, CA 9
EIN: 41-2254389 |
This Additional Seller Addendum to Purchase Agreement ("Addendum") is entered into by and among the above referenced Parties and amends that certain Purchase Agreement between Buyer and Original Seller dated May 01, 2024 (the "Purchase Agreement").
Each Additional Seller desires to enter into the Purchase Agreement and to agree to all the terms of the Purchase Agreement, so that they will all fully apply to such Additional Seller to the same extent as if the Additional Seller had executed the Purchase Agreement itself. Therefore, each of the Parties agree as follows:
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By their signatures below the Parties agree to be bound by this Addendum
Buyer
AGILE CAPITAL FUNDING LLC
By: Title: CFO
Original Seller
US MEDICAL, INC.
__________________EMMA
By:
Title: 21250 Hawthorne Bl 800, Torrance, CA 9
Additional Seller(s)
EMMAUS LIFE SCIENCES, INC.
By:
Title: Authorized Signer Business Address:
21250 Hawthorne Bl 800, Torrance, CA 9
EMI HOLDING, INC.By:
Title: Authorized Signer Business Address:
Consent and Reaffirmation of Guarantor
Each undersigned guarantor (“Guarantor”) hereby reaffirms the Guaranty of Performance (“Guaranty”) provided for the benefit of the Buyer, pursuant to which Guarantor guaranteed to Buyer the prompt and complete performance of all the Seller’s obligations under the Purchase Agreement. Each Guarantor consents to the addition of the Additional Sellers as contemplated by this Addendum and agrees that, as used in the Guarantee. “Seller” means individually, collectively and interchangeably the Original Seller and each Additional Seller.
Authorized Signer: WILLIS C. LEE (Print Name) Signature:
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AGILE CAPITAL FUNDING LLC
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AGILE CAPITAL FUNDING LLCDate: May 01, 2024
Business Legal Name: EMMAUS MEDICAL, INC.
RE: Pre-Payment Amendment
This amendment (“Amendment”) to Merchant Agreement dated May 01, 2024 is made as of May 01, 2024 between AGILE CAPITAL FUNDING LLC and EMMAUS MEDICAL, INC. (the “Merchant(s)”). AGILE CAPITAL FUNDING LLC and the Merchant are sometimes referred to herein collectively as the “Parties “and each as a “Party.” Whereas, the Parties desire to modify certain terms of the Merchant Agreement EMMAUS MEDICAL, INC. dated May 01, 2024.
In consideration of the above promises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree and amend the Agreement as follows:
Merchant may prepay Merchant’s advance in whole using the following schedule:
Calendar Days After Funding Payoff amount
30 Days $ 1,265,000.00
60 Days $ 1,353,000.00
If Merchant elects to prepay the Merchant Agreement, the sum of payments made up to that point will be applied and deducted from the aforementioned prepaid schedule of payments.
*The prepayment discount schedule is offered in good faith and must meet the following criteria to apply:
The Agreement shall remain in full force and effect as modified by this Amendment. This Amendment shall be governed by and construed in accordance with the laws of the State of New York without giving effect to the principles of conflicts of laws. This Amendment may be executed in counterparts, all of which together shall constitute one and the same instrument. Facsimile signatures shall be deemed to be original signatures and each party hereto may rely on a facsimile signature as an original for purposes of enforcing this Amendment.
IN WITNESS WHEREOF, each of the undersigned has executed, or has caused to be executed, this Amendment as of the date first written above.
Merchant: EMMAUS MEDICAL, INC. Name: WILLIS C. LEE
Title: Authorized Signer
Signature:
05 / 01 / 2024
Date:
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EMMAUS MEDICAL INC.-421859 EMMAUS_MEDICAL_INC.-421859.pdf
fd6c00fbdff55c021ea2ed6f9fad5a96eb64110b MM / DD / YYYY
Signed
05 / 01 / 2024
10:57:08 UTC-4
Sent for signature to WILLIS C. LEE (wlee@emmauslifesciences.com) and Aaron Greenblott (contracts@lendwizely.com) from contracts@lendwizely.com IP: 108.6.80.154
05 / 01 / 2024
11:03:38 UTC-4
05 / 01 / 2024
11:23:59 UTC-4
05 / 02 / 2024
12:04:00 UTC-4
05 / 02 / 2024
12:05:04 UTC-4
05 / 02 / 2024
12:05:04 UTC-4
Viewed by WILLIS C. LEE (wlee@emmauslifesciences.com) IP: 47.176.83.230
Signed by WILLIS C. LEE (wlee@emmauslifesciences.com) IP: 47.176.83.230
Viewed by Aaron Greenblott (contracts@lendwizely.com) IP: 108.6.80.154
Signed by Aaron Greenblott (contracts@lendwizely.com) IP: 108.6.80.154
The document has been completed.