Wave Capital Terms of Service - Canada

Effective as of: Aug 12, 2019

MASTER PROGRAM AGREEMENT

THIS MASTER AGREEMENT SETS FORTH THE TERMS AND CONDITIONS FOR A PROGRAM IN WHICH WE MAY, FROM TIME TO TIME, OFFER YOUR COMPANY BUSINESS LOANS OR SIMILAR PRODUCTS

ARTICLE
BUSINESS LOANS

1.1 Business Loans.

1. This Agreement governs all Business Loans that may be made from time to time by Lender, in its sole discretion, to the Borrower.
2. The Borrower agrees that all Business Loans made under this Agreement are made solely for the Borrower’s business purposes and not for the Borrower’s personal, family or household purpose.
3. The terms relating to the amount of each Business Loan, payment schedule and due dates and Installment Fees in respect of each Business Loan will be set out in the Business Loan Term Sheet for such Business Loan. Upon the Borrower’s acceptance of each Business Loan Term Sheet presented by the Lender, such Business Loan Term Sheet will be incorporated by reference into this Agreement and governed by the terms of this Agreement.
4. The Lender has no obligation to make any Business Loans to the Borrower. The Lender may, in its sole discretion, without prior notice, withdraw or cancel any offers (or similar messages or other communications) delivered to the Borrower in respect of any loans.

1.2 Mandatory Scheduled Repayments.

In respect of each Business Loan, the Borrower will repay the Business Loan Outstanding, together with the Installment Fee, in accordance with the payment schedule set out in the Business Loan Term Sheet for such Business Loan, except if another payment schedule is permitted or required under this Agreement.

1.3 Voluntary Repayments.

1. If the Borrower is current on its payments on a business loan, the Borrower may prepay the entire amount of the Business Loan Outstanding in respect of such Business Loan at any time. For clarity, the entire unpaid amount of the Installment Fee will be payable in respect of the prepayment of the entire amount of the Business Loan.
2. Unless the full amount of the Business Loan is due and payable under any other terms of this Agreement, if the Borrower has missed a payment in respect of a business loan, the Borrower will pay the missed payment and may, in the Borrower’s discretion, prepay the entire amount of the Business Loan Outstanding in respect of such Business Loan at any time. For clarity, the entire unpaid amount of the Installment Fee will be payable in respect of the prepayment of the entire amount of the Business Loan.

1.4 Application of Payments and Prepayments.

All amounts received by the Lender from the Borrower and not previously applied pursuant to this Agreement shall be applied by the Lender to reduce the Borrower’s obligations as follows: (i) first, to pay any unpaid Installment Fees which are due and owing; (ii) second, to pay any amounts due and owing on account of any unpaid principal amount of the Business Loan Outstanding which is due and owing; and (iii) third, to any other obligation of the Borrower under this Agreement.

1.5 Computations of Interest and Fees.

For purposes of the Interest Act (Canada), whenever any interest or Installment Fee under this Agreement is calculated using a rate based on a number of days less than a full year, such rate determined pursuant to such calculation, when expressed as an annual rate, is equivalent to (x) the applicable rate, multiplied by (y) a fraction, the numerator of which is the actual number of days in the calendar year in which the period for which such interest or fee is payable (or compounded) ends, and, the denominator of which is the number of days comprising such calculation basis.

ARTICLE 2
PROCEDURES FOR BUSINESS LOAN AND PAYMENT

2.1 Procedure for Borrowing.

If the Borrower wishes to apply for a business loan, the Borrower will (a) review the terms and conditions for the amount of such Business Loan, if any, that the Borrower is qualified to borrow from the Lender as set forth in the applicable Business Loan Term Sheet and this Agreement, and (b) accept such terms and conditions in accordance with the procedures required by the Lender.

2.2 Mechanics for Business Loan and Payments.

Upon Borrower’s acceptance of the terms and conditions in respect of a business loan, the Lender will, if the Lender in its sole discretion determines to make the Business Loan, disburse the Business Loan into the Borrower’s Bank Account for access by the Borrower. When making any repayment or payment on a business loan, the Borrower will deposit the amount of such payment to the Borrower’s Bank Account so the Lender can then withdraw such payment.

The Lender is authorized at any time and without prior notice to the Borrower to debit (or direct the Lender’s financial institution to debit) the Borrower’s Bank Account with all amounts owed by the Borrower to the Lender under this Agreement, including, but not limited to, all Payment Amounts. The Borrower agrees and consents that the amount of the PAD will be varied and adjusted to accommodate any change in the Business Loan Outstanding or Payment Amounts that occur as a result of a prepayment or any other provision of this Agreement. The terms and conditions of the PAD Agreement attached as Schedule 2 to this Agreement apply to all PADs. The Borrower agrees that the Lender may engage a third party, including its affiliate Waive Credit Inc., to process the PADs and otherwise service and administer the loan.

ARTICLE 3
REPRESENTATIONS, WARRANTIES & COVENANTS

3.1 Representations and Warranties.

As of the date of this Agreement and on each date a business loan is made, the Borrower represents and warrants to the Lender, acknowledging and confirming that the Lender is relying thereon: (a) the Borrower exists and is duly formed under the jurisdiction of its formation; (b) except as disclosed by the Borrower to the Lender in writing, there is no litigation, arbitration, Claim, dispute, governmental investigation, proceeding or inquiry pending or, to the Borrower’s knowledge, threatened against or affecting the Borrower; (c) the Borrower has not been known by any name other than the name set out on the execution pages hereto; (d) the Borrower is not a non-resident of Canada for purposes of the Income Tax Act (Canada); (e) the Borrower has filed or caused to be filed all tax returns which, to the Borrower’s knowledge, are required to have been filed, and has paid all taxes shown to be due and payable on said returns or on any assessments made against the Borrower or any of the Borrower’s property and all other taxes, fees or other charges imposed on the Borrower or any of the Borrower’s property by any Governmental Entity (other than those the amount or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided in the Borrower’s books); and no tax liens have been filed and, to the knowledge of the Borrower, no Claims are being asserted with respect to any such taxes, fees or other charges; and (f) this Agreement constitutes a valid and legally binding obligation of the Borrower enforceable against the Borrower in accordance with its terms.

3.2 Survival of Representations and Warranties.

The representations and warranties herein set forth or contained in any certificates or documents delivered to the Lender pursuant hereto shall not merge in or be prejudiced by and shall survive each Business Loan hereunder and shall continue in full force and effect (as of the date when made or deemed to be made) so long as any amounts are owing by the Borrower to the Lender hereunder or under the other Loan Documents.

3.3 Covenants.

So long as any amount owing hereunder remains unpaid or the Lender has any obligation under this Agreement, the Borrower shall:

1. maintain its corporate existence, conduct its business in the normal course and comply in all material respects with the requirements of all applicable laws;
2. pay and discharge before the same shall become delinquent, (i) all material taxes, assessments and governmental charges or levies imposed upon the Borrower or upon the Borrower’s Assets; and (ii) all material lawful Claims which, if unpaid, might by Law become a Lien upon the Borrower’s Assets, except any such tax or Claim which is being contested in good faith and by proper proceedings;
3. duly and punctually pay or cause to be paid to the Lender all principal and interest payable hereunder and all other amounts payable hereunder upon the dates and at the places and in the manner set forth herein; and
4. at the Borrower’s cost and expense, upon request of the Lender, duly execute and deliver or cause to be duly executed and delivered to the Lender such further instruments and do and cause to be done such further acts as may be necessary or proper in the reasonable opinion of the Lender to carry out more effectually the provisions and purposes of the Loan Documents.

ARTICLE 4
EVENTS OF DEFAULT

4.1 Events of Default.

Upon an Event of Default, the Lender may by written notice to the Borrower, declare the principal amount of the Business Loan Outstanding on the Business Loan in respect of which the Event of Default has occurred or all Business Loans, all Installment Fees and other amounts payable under this Agreement to be immediately due and payable, without presentment, demand, protest or further notice of any kind (except as required by Law), all of which are hereby expressly waived by the Borrower.

Notwithstanding the foregoing, when any Event of Default described in part (f) of the definition thereof, has occurred and is continuing, all outstanding Obligations shall immediately become due and payable together with all other amounts payable under the Loan Documents without presentment, demand, protest or notice of any kind, and the right of the Borrower to request the Lender to extend further credit pursuant to any of the terms hereof shall immediately terminate.

Upon the acceleration of any amount hereunder and notwithstanding anything herein to the contrary, the Borrower hereby acknowledges that the Borrower shall be then indebted to, and shall be obligated to pay to the Lender, as a separate and absolute obligation, all unpaid principal amount of Business Loans, all Installment Fees and all other amounts payable under this Agreement. Such payment to the Lender when made shall be deemed to have been made in discharge of the Borrower’s Obligations hereunder.

4.2 Remedies Upon Demand and Default.

Upon the Business Loans becoming immediately due and payable pursuant to the events of default, the Lender may commence such legal action or proceedings as it, in its sole discretion, may deem expedient, including the commencement of enforcement proceedings under this Agreement or any other Loan Document, all without any additional notice, presentation, demand, protest, notice of dishonour, or any other action or notice (except as required by Law), all of which the Borrower hereby expressly waives. The rights and remedies of the Lender hereunder are cumulative and are in addition to and not in substitution for any other rights or remedies available to the Lender.

4.3 Set-Off.

In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, upon the occurrence of any Event of Default, the Lender is hereby authorized by the Borrower at any time or from time to time, without notice to the Borrower, any such notice being hereby expressly waived, to set-off and to appropriate and to apply any and all deposits (general or special, including Debt evidenced by certificates of deposit, whether matured or unmatured, (in whatever currency)) and any other Debt at any time held or owing by the Lender or any of its Affiliates to or for the credit or the account of the Borrower (in whatever currency) against and on account of the Business Loans and any other Obligations of the Borrower to the Lender hereunder, irrespective of whether or not the Lender shall have made any demand hereunder or any Business Loan or any other Obligation shall be due or payable, be contingent or unmatured.

ARTICLE 5
GENERAL

5.1 Incorporation of Schedules.

The schedules attached to this Agreement shall, for all purposes of this Agreement, form an integral part of it.

5.2 Governing Law.

This Agreement shall be governed by and interpreted and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein.

5.3 Benefit Agreement.

This Agreement will be binding upon the Borrower and the Borrower’s successors and assigns.

5.4 Amendment.

No amendment or waiver of any provision of this Agreement, nor consent to any departure by the Borrower, shall be effective unless in writing and approved by the Lender. Any amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given.

5.5 Waiver.

failure on the part of the Lender to exercise, and no delay in exercising, any right hereunder shall operate as a waiver of such right; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise of such right or the exercise of any other right. Except as otherwise expressly provided in this Agreement, the covenants, representations and warranties therein shall not merge on and shall survive the initial Business Loan and, notwithstanding such initial Business Loan or any investigation made by or on behalf of any party, shall continue in full force and effect. The closing of this transaction shall not prejudice any right of one party against any other party in respect of anything done or omitted under this Agreement or in respect of any right to damages or other remedies.

5.6 Notices, etc.

In addition of the Lender’s other rights under this Agreement, the Lender may charge the Borrower any fees (e.g., NSF fees) imposed by the Lender’s financial institution or any other financial institution in respect of the Borrower’s Bank not having sufficient fees for purposes of debiting payments due under this Agreement.

5.8 Maximum Interest.

If any provision of this Agreement or of any of the other Loan Documents would obligate the Borrower to make any payment of interest or other amount payable to Lender in an amount or calculated at a rate which would be prohibited by applicable law or would result in a receipt by Lender of interest at a criminal rate (as such terms are construed under the Criminal Code (Canada)) then, notwithstanding such provisions, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by applicable law or so result in a receipt by Lender of interest at a criminal rate.

5.9 Interpretation.

1. Gender and Number. Any reference in the Agreement to gender includes all genders, and words importing the singular number only include the plural and vice versa.
2. Interpretation not Affected by Headings, etc. The division of this Agreement into Articles and Sections and the insertion of headings are for convenience of reference only and shall not affect the interpretation of this Agreement.
3. Currency. All references in the Agreement to dollars or $, unless otherwise specifically indicated, are expressed in the lawful currency of Canada.
4. Non-Business Days. Whenever any payment or report is stated to be due on a day which is not a Business Day, such payment or report shall be made on the next succeeding Business Day, and such extension of time shall be included in the computation of interest or Fees, as the case may be.

5.10 Severability.

Any provision of this Agreement which is or becomes prohibited or unenforceable in any jurisdiction, does not invalidate, affect or impair the remaining provisions thereof and any such prohibition or unenforceability in any jurisdiction does not invalidate or render unenforceable such provision in any other jurisdiction.

5.11 Counterparts and Electronic Signatures.

This Agreement may be executed in any number of counterparts (including by way of electronic signatures in accordance with any procedures determined by the Lender) and all of such counterparts taken together shall be deemed to constitute one and the same instrument.

SCHEDULE 1
DEFINED TERMS

“Business Loan” means any term loan made by the Lender to the Borrower under the terms of this Agreement.

“Business Loan Outstanding”, in respect of a business loan, means, at any time, the amount of such Business Loan then outstanding hereunder made to the Borrower by the Lender plus the unpaid portion of the Installment Fee for such Business Loan.

“Business Loan Term Sheet”, in respect of a business loan, means a term sheet in the form of Schedule 3 to this Agreement, or such other form that may be used by the Lender in its discretion and presented to the Borrower from time to time.

“Affiliate” means, as applied to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, that Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power (i) to vote 50% or more of the voting securities having ordinary voting power for the election of directors of such Person, or (ii) to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise.

“Agreement” means this Master Loan Agreement and the schedules thereto, as such agreement may be amended, supplemented, restated, renewed or otherwise modified from time to time, and, in respect of each Business Loan, includes the Business Loan Term Sheet in respect of such Business Loan.

“Assets” means, with respect to any Person, any property, assets and undertakings of such Person of every kind and wheresoever situate, whether now owned or hereafter acquired (and, for greater certainty, includes any equity or like interest of such Person in any other Person).

“Borrower” means any Person who has received a business loan.

“Borrower’s Bank Account” means the Borrower’s Deposit Account as defined in Schedule 2 to this Agreement.

“Business Day” means any day of the year, other than a Saturday, Sunday or other day on which banks are required or authorized to close in Toronto, Ontario.

“Canadian Dollars” and “Cdn.$” mean lawful money of Canada.

“Claim” means any claim of any nature whatsoever, including any demand, liability, obligation, cause of action, suit, proceeding, judgment, award, assessment and reassessment.

“Debt” of any Person means, at any time, (without duplication among any of the listed items), (i) all indebtedness of such Person for borrowed money including borrowings of commodities, bankers’ acceptances, letters of credit or letters of guarantee; (ii) all indebtedness of such Person for the deferred purchase price of property or services represented by a note or other evidence of indebtedness; (iii) all indebtedness of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property); and (iv) all indebtedness of another Person secured by a Lien on any properties or Assets of such Person.

“Event of Default”, in respect of a business loan, shall mean the occurrence and continuance of any of the following events:

1. the Borrower shall fail to pay any principal amount of the Business Loan Outstanding in respect of such Business Loan or any other Business Loan made under this Agreement, in each case, when such amount becomes due and payable;
2. the Borrower shall fail to pay Installment Fees in respect of such Business Loan or any other Business Loan made under this Agreement, in each case, when the same become due and payable hereunder;
3. any representation or warranty or certification made or deemed to be made by the Borrower in this Agreement shall prove to have been incorrect when made or deemed to be made;
4. the Borrower shall commit a breach of, or fail or neglect to observe, perform or comply with any other term, covenant, representation, warranty, agreement or any other provision contained in any Loan Document and such breach or failure shall remain unremedied for 30 days;
5. any judgment or order for the payment of money is rendered against or in respect of the Borrower or the Borrower’s Assets and either (i) enforcement proceedings have been commenced by a creditor upon the judgment or order, or (ii) there is any period of 10 consecutive days during with a stay of enforcement of the judgment or order, by reason of a pending appeal or otherwise, is not in effect;
6. the Borrower (i) becomes insolvent or generally not able to pay the Borrower’s Debts as they become due; (ii) admits in writing the Borrower’s inability to pay the Borrower’s Debts generally or makes a general assignment for the benefit of creditors; (iii) institutes or has instituted against the Borrower any proceedings seeking (x) to adjudicate the Borrower bankrupt or insolvent, (y) protection, release or composition of the Borrower or the Borrower’s Debt under any Law relating to bankruptcy, insolvency, reorganization or release of debtors including any plan of compromise or arrangement, or (z) the entry of an order for relief or the appointment of a receiver, trustee or other similar official for the Borrower or for any substantial part of the Borrower’s properties and Assets; or (iv) takes any action to authorize any of the above actions;
7. the Borrower cancels or revokes the PAD and does not provide an alternative method of payment that is acceptable to the Lender; or
8. this Agreement or another Loan Document shall (i) fail to provide the Lender the Liens, rights, title, interest, remedies, powers or privileges intended to be created thereby; or (ii) cease to be in full force and effect.

“GAAP” means, at any time, accounting principles generally accepted in Canada as recommended in the Handbook of the Canadian Institute of Chartered Accountants applied on a consistent basis.

“Governmental Entity” means any (i) multinational, federal, provincial, state, municipal, local or other government, governmental or public department, central bank, court, commission, board, bureau, agency or instrumentality, domestic or foreign, (ii) any subdivision or authority of any of the foregoing; or (iii) any quasi-governmental or private body exercising any regulatory, expropriation or taxing authority under or for the account of any of the above.

“Installment Fee”, in respect of a business loan, means the fee charged by the Lender in respect of each Business Loan and set forth in the Business Loan Term Sheet for such Business Loan.

“Lender” means [Wave Financial Inc.] and its successors and assigns.

“Lien” means liens, charges, mortgages, pledges, security interests, adverse claims, defects of title, restrictions, deposit arrangements, voting trusts, any other rights of third parties relating to any Asset and any other lien of any kind that in substance secures payment and performance of an obligation.

“Loan Documents” means this Agreement, any guarantee provided in connection with this Agreement and each other agreement, document or instrument relating to such agreements, with each such agreement being a “Loan Document”.

“Obligations” means the prompt payment, as and when due and payable, of all amounts now or subsequently owing by the Borrower to the Lender, including by way of guarantee or indemnity, matured or unmatured, direct, indirect or contingent, including any amendments, restatements, supplements, extensions, renewals and replacements of any such obligations, including any obligation under the Loan Documents; and the strict performance and observance by the Borrower of all agreements, warranties, representations, covenants and conditions of the Borrower made pursuant to this Agreement or any other agreement between the Borrower and the Lender, in each case as now in effect or as subsequently entered into, amended, restated, supplemented, renewed, extended or replaced from time to time, including all those made under the Loan Documents.

“PAD” means a pre-authorized debit from Borrower’s Bank Account.

“PAD Agreement” means the terms and conditions relating to the pre-authorized debit agreement set forth in Schedule 2 of this Agreement.

“Payment Amount”, in respect of a business loan, means the amount(s) shown in the Business Loan Term Sheet for such Business Loan which the Borrower will pay on the Payment Date(s) shown in such Business Loan Term Sheet.

“Payment Date”, in respect of a business loan, means the date or dates shown in the Business Loan Term Sheet for such Business Loan on which the Borrower is required to pay one or more Payment Amounts.

“Person” means a natural person, partnership, corporation, company, joint stock company, trust, unincorporated association, joint venture or other entity or Governmental Entity, and pronouns of the foregoing shall have a similarly extended meaning.

SCHEDULE 2
Pre-Authorized Debit Agreement: Terms and Conditions

1. In this business pre-authorized debit agreement (this “agreement”), “Wave”, “we” and “us” collectively refer to Wave Financial Inc.,. and any of their affiliates(including any successors or assigns), and “you” and “your” refer to the above-named Borrower.
2. You authorize Wave, and any financial institution designated by Wave, from time to time, to issue and process pre-authorized debits (“PADs”) and debit the Deposit Account as you previously authorized for regular recurring payments and/or one-time payments from time to time in connection with any amounts that you may borrow from time to time and related fees and other charges in respect of such borrowed amounts. Regular payments will be debited to the Deposit Account in accordance with the Master Loan Agreement between Wave and you or such other day as may be notified by Wave from time to time. You waive your right to receive pre-notification of the amounts of the PADs or any change in the amounts of the PADs and agree that you do not require advance notice of the amounts of PADs or any change in the amounts of the PADs before the debits are processed. Such waiver of notification is not applicable to any one-time or sporadic debits for which Wave is required to obtain your authorization in accordance with Rule H1 of the Canadian Payments Association.
3. This is a business PAD.
4. For purposes of this agreement, “Deposit Account” means the deposit account you have previously authorized Wave to move funds in and out of from time to time.
5. You undertake to inform Wave promptly, in writing, of any change to the Deposit Account.
6. If any PAD is dishonoured for any reason, you agree that Wave may resubmit that PAD in the same amount as the PAD that was dishonoured and in accordance with the rules of the Canadian Payments Association.
7. At any time, you may authorize Wave to issue a PAD against the Deposit Account for payment of a specified amount. Such authorization may be given to us by any means, including by way of telephone, electronic communication or on our secure web site. You agree that a password or secret code or other signature equivalent will be issued and will constitute a valid authorization for Wave or its agent to debit the Deposit Account. Your authorization for a one time or sporadic payment will constitute an agreement and direction to us for that payment only.
8. You have certain recourse rights if any PAD does not comply with this agreement. For example, you have the right to receive reimbursement for any PAD that is not authorized or is not consistent with this agreement. To obtain more information on your recourse rights, you may contact your financial institution or visit www.payments.ca. You may revoke this agreement at any time, upon providing 30 days’ notice, in writing, to Wave at the address noted below or as Wave may advise from time to time. You may obtain a sample cancellation form or further information on your right to cancel a PAD agreement at your financial institution, by contacting Wave or by visiting www.payments.ca. This authorization applies only to the method of payment and you agree that cancellation of this authorization does not terminate or otherwise have any effect on any contract that exists between you and Wave (for clarity, if this authorization is presented to you as part of another document, the cancellation of this authorization does not terminate or otherwise have any effect on any other parts of such document).
9. If you require more information or have an issue regarding this agreement, you understand that you may contact Wave by email at capital@waveapps.com or as Wave may advise from time to time.