Capital Ready & Business Funding Agreement
THIS AGREEMENT is entered into, by and between the Innovative Capital Strategies, Inc. (hereafter referred to as “ICS”), with principal offices located at 112 East Line Street, Suite 204, Tyler, TX 75702, (hereafter referred to as “Advisor(s)”) and Capital Ready & Business Funding Agreement Client (hereafter referred to as “Client”) with the following terms and conditions:
WHEREAS, Advisor administers the Capital Ready & Business Funding Program developed by Business Credit Literacy Initiative, a 501(c)(3) non-profit, to assist entrepreneurs in accessing capital necessary to start or grow a business often without any advance or upfront out of pocket costs with an emphasis on meeting the underwriting requirements of SBA loans;
WHEREAS, Client wishes to gain access to business funding such as business credit/loans, personal credit/loans, hybrid forms of credit/loans, and/or investor-based equity for a business the Client has an interest in and wishes to secure the services of Advisor to act as intermediary to arrange access to and qualifications for such capital for the client;
WHEREAS, Client elects to defer submission of the $2,500 refundable deposit for Capital Ready & Business Funding Program until the first capital raise is accomplished through the Program to fund the deposit.
NOW THEREFORE, in consideration of the terms and conditions set forth below and other good and valuable consideration, the parties agree as follows:
- Active participation. Any act by Client that is compliant with Advisor’s guidance and instructions, including but not limited to timely submission of payments invoiced Performance Fee amounts, especially items described as essential or critical to the success of the Program.
- Arrange. Any act by Advisor as an intermediary, such as introductions, education, document preparation, assistance with underwriting compliance meeting lender/credit requirements, etc.
- Assistance/assisting. Any act by Advisor performed to pursue and/or achieve a client goal, including advice and guidance.
- Tracking Advisor’s guidance and Client’s compliance with such guidance. Advisor’s guidance and Client’s performance, growth, compliance, and success in obtaining capital will be tracked Advisor’s CRM.
- Refundable Deposit. A $2,500 deposit is normally due upon enrollment in the Capital Ready & Business Funding Program however, under this deferred deposit option, Client will submit the $2,500 refundable deposit after the first capital raise, from any source, during the term of this Agreement. Client promises to submit the $2,500 refundable deposit to ICS within two (2) days of receipt of funding from any source during the term of this Agreement. Client acknowledges that the first round of funding may be from a variety of sources, i.e., business loan, business line of credit, personal loan, personal line of credit, revolving accounts under EIN, SSN, or both, etc. As there is a priority to satisfy the Refundable Deposit as soon as possible, Client agrees to accept any offered Capital Raise to satisfy the outstanding Refundable Deposit. If Client should decline an offered source of funding prior to the Refundable Deposit being paid to ICS, Client shall be immediately responsible to directly pay Refundable Deposit to ICS. At the point Client receives $100,000 in total capital business funding, this deposit will be refunded after the Performance Fee has been paid on the amount raised of at least $100,000.
- Performance Fee. Fee of six percent (6%) of the total amount of any and all funding/capital acquired/obtained/arranged during the term of this Agreement, whether from one or multiple sources, as access to each funding is received and/or available from loans, lines of credit, trade lines, leases, 401(k) financing, credit cards, business revenue financing, investor equity, etc.
- Capital Ready. Meeting the underwriting criteria for the type of funding instrument(s) for which the Client is applying, such as SBA loans, other business credit/loans, personal credit/loans, hybrid forms of credit/loans and/or investor-based equity.
- Capital raise. Capital raise is defined as capital offered to the Client, even if Client refuses such funding. Advisor is not liable to the $100,000 capital raise guarantee if Client refuses any funding instruments under this Agreement.
- Processing Fee. The one-time, $300 non-refundable processing fee covers the set up of your file with ICS, assignment of staff to assist Client including a Finance Officer and a Small Business Mentor, and the cost of your business credit reports for one year.
- PAYMENT & GUARANTEES
- Advisor Guarantee. Advisor guarantees Client will raise between $100,000 and $50,000,000 of capital as long as Client actively participates in the Capital Ready & Business Funding Program. The actual amount and composition of capital raised will depend upon Client’s goals, preferences, qualifications, types of capital pursued, and compliance with Advisor’s guidance.
- Essential to this guidance is Client coordination with Advisor as to the use of each round of funding received and it is included in the obligation for “active participation” and a failure to coordinate with Advisor in this way will render the $100,000 capital raise guarantee null and void, without releasing Client from any other obligation under this Agreement.
- Because compliance with Advisor’s guidance is critical to success in the Program, Client’s failure to follow Advisors guidance will nullify the guarantee of raising a minimum of $100,000 in capital. Client refusal of available funding will be considered a lack of “active participation.” Client will still be responsible for all other provisions in this Agreement.
- In the unlikely event that Client has not raised a minimum capital raise of $100,000 in funding after the term of one year, despite active participation and compliance with the guidance of Advisor, this agreement shall be automatically renewed for one year periods until at least $100,000 capital has been raised as long as Client maintains active participation.
- Client liability. Client will sign both in their capacity as an individual and their capacity as owner of the business, making personal and business assets liable on this Agreement.
- Client payments. Client agrees to pay to Advisor the 6% Performance Fee within two (2) business days of receipt of or access to any funding. Failure to pay the Performance Fee within this time will result in a late fee of $50 per day after failure to pay the Performance Fee until the full amount due is paid to Advisor and also cause refundable deposit to be forfeited, i.e., no longer be refundable. Such payments and late fees are applied to each individual funding instrument when the Performance Fee is earned as described in Section II(d) below. Nonpayment of Performance Fee and/or late fees will result in a suspension of the obligations of Advisor until full payment of all fees, including late fees are made and Client is current on all payments due.
The Refundable Deposit and all Performance Fees will be paid by wire transfer, unless parties come to a different agreement, in writing and signed by both parties.
- Collection Costs. Client shall be responsible for necessary expenses incurred by Advisor to collect the Deposit, Performance Fee and/or late fees, including court costs, attorney fees, etc.
- Performance Fee Earned. Client agrees that Advisor has fully earned the Performance Fee on the date that any capital instrument(s) that has/have funded as defined above.
At that time Performance Fee is earned, Advisor has no further responsibility, directly or indirectly, for the maintenance, access, or anything else related to the funded instrument(s) from the date the instrument(s) has/have funded and/or made available to Client.
- Notice. This Agreement is effective from the date of the last signature of the parties, generally Advisor, even if the Refundable Deposit has not yet been paid. If Client does not submit Refundable Deposit within ten (10) calendar days from the signing of this Agreement, full payment of the Performance Fee based on the guaranteed $100,000 is due, which amounts to $6,000.
- Refund. When Client has received $100,000 in capital funding and the Performance Fee of $6,000 has been paid to Advisor, Advisor shall refund the $2,500 Refundable Deposit.
- SECURING CAPITAL
- Consulting Services. Client understands that they are securing consulting services for the purpose of helping ensure they meet lending and investor credibility standards, helping them build and access personal/business credit, gain access to cash funding options, and, if desired, become capital ready to access investor-based equity.
- Underwriting Process. Client understands that their Advisor will ask questions relating to pre-qualification for capital, including questions about credit, company income, revenue, and other relevant information. These questions are to equip Advisors with the information to aid Client in pre-qualifying for capital funding instrument(s) and does not constitute final approval for any funding.
Advisor is not the lender or underwriter for any funding instrument(s) and Client cannot be fully approved until they go through a formal underwriting process with the actual lender(s) or underwriter(s) of any capital funding instrument(s).
- Other capital funding arrangements. Client agrees not to apply or enter into any credit, lending, funding, or capital arrangements outside of this Agreement. If Client violates this section, the Refundable Deposit will convert to a Nonrefundable Deposit and the Performance Fee under this Agreement shall still apply to sources of capital derived from all sources during the term of this Agreement.
- Active Participation. Client agrees to actively participate in this Program, as defined in this Agreement, until a minimum of $100,000 of capital is raised. Failure to actively participate will result in a charge equivalent to the Performance Fee for a $100,000 capital raise, after deducting any Performance Fees previously paid to Advisor.
If Client incurs this charge for failure to actively participate in the Program, Advisor will invoice Client and Client will either;
- Actively reengage and participate in the Program to raise a minimum of $100,000 capital; or
- Pay the invoice in full within two (2) business days, subject to the same penalties outlined in Section II(f) for late payments.
- Use of Funding. Client agrees to coordinate with Advisor concerning the use of each round of funding received. This is essential to the success of the Program. Failure to comply with this provision nullifies Advisor’s guarantee of a minimum of $100,000 capital raise, but does not release Client from other obligations in this Agreement.
- ADVISEMENT SERVICES PROVIDED
Services provided by the Advisor(s) may include:
- Business Credit Readiness Review. Advisor performs a corporate compliance and document review of Client’s business in order to help prepare Client to maximize the possibility of success in obtaining business credit Client applies for;
- Key Person Life Insurance Policy assistance. Advisor assists Client with securing a compliant policy as often required by the SBA and some other sources of capital;
- Business Credit and Funding. Advisor assists Client in obtaining trade, revolving, and non-revolving business credit and funding sources;
- Investor-Based Capital. If applicable, Advisor assists Client in attracting investor-based capital in the form of Crowd Funding, Rule A+ of the 2012 Jobs Act, Initial Public Offering, etc.;
- Capital Readiness. Following a formalized and proprietary ten step process, Advisor will assist Client in becoming capital ready; and/or
- Credit Building. Guidance on credit building/improvement of owner’s personal credit scores.
- ADDITIONAL ITEMS
- Third-party Costs. Client understands that any funding obtained from lending sources may involve expenses and certain business requirements that must be met by Client and are not covered under Advisor’s services, i.e. maintaining a business bank account with a positive balance, obtaining a Key Person Life Insurance Policy, improving/maintain a strong personal credit profile, purchasing business credit reports, paying business bills on time, etc. These expenses are charged by third parties and are the sole responsibility of the Client, and not the Advisor(s).
Lender costs may also include standard lender fees and processing fees, points, APRs, interest rates, discounts, and other standard fees commonly associated with borrowing money. These fees are charged by the lender/vendor themselves and are not included in the Capital Ready & Business Funding Program.
- Confidentiality. Except as otherwise provided in this Agreement or with the written consent of BCLI, Client agrees that all information, including, without limitation, the terms of this Agreement, the program design, model, processes, materials, communication records, sources of capital, and/or resources shall remain strictly confidential and secret.
Further, such information shall not be utilized, directly or indirectly, by Client for any purpose other than participation in the Capital Ready and Business Funding Agreement as a participant, except and solely to the extent that any such information is generally known or available to the public through a source other than Client.
Client shall not use any information obtained from the ICS Capital Ready and Business Funding program to develop, enhance, or operate a service that competes with the ICS Capital Ready & Business Funding Program, or assist another party to do the same.
- Defamation. Advisor’s reputation is essential its ability to engage in business and Advisor will pursue legal action against any damage to its reputation resulting from unlawful action by Client.
- Binding Arbitration. With the exception of provisions in this Agreement concerning Client’s failure to pay in Section 2(f) and failure to comply with requirement for active participation in Section 3(d), any dispute under this Agreement shall be resolved by binding arbitration.
Arbitration shall be conducted by one (1) mutually agreed upon arbitrator and arbitration will be held in Tyler, Texas.
Except as required by law, neither party, nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all parties.
Each party shall pay its own costs associated with the arbitration and the parties shall equally pay the cost of securing the arbitrator and the venue.
This section shall survive the termination or cancellation of this Agreement.
- Severability. If any term of this Agreement is to any extent illegal, otherwise invalid, or incapable of being enforced, such term shall be excluded to the extent of such invalidity or unenforceability; all other terms herein shall remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term.
If application of this Severability provision should materially and adversely affect the economic substance of the transactions herein contemplated, the Party adversely impacted shall be entitled to compensation for such adverse impact, provided the reason for the invalidity or unenforceability of a term is not due to serious misconduct by the Party seeking such compensation.
THE TERMS OF THIS AGREEMENT SHALL CONTROL OVER ANY CONFLICTING TERMS IN ANY REFERENCED AGREEMENT OR DOCUMENT. THIS AGREEMENT SETS FORTH AND CONSTITUTES THE ENTIRE AGREEMENT AND UNDERSTANDING OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF. THIS AGREEMENT SUPERSEDES ANY AND ALL PRIOR AGREEMENTS, NEGOTIATIONS, CORRESPONDENCE, UNDERTAKINGS, PROMISES, COVENANTS, ARRANGEMENTS COMMUNICATIONS, REPRESENTATIONS, AND WARRANTIES, WHETER ORAL OR WRITTEN, OF ANY PARTY TO THIS AGREEMENT.
By clicking to accept, you have voluntarily and irrevocably agreed to enter into this Agreement and to the terms stated above.