Windfall Loan Participation Program
TERMS & CONDITIONS

Windfall Loan Participation Program Terms & Conditions

These Terms and Conditions (“Terms and Conditions”) are incorporated into and made a part of the Windfall Investment Program Agreement (“Investment Agreement”) by and between ARF Financial, LLC, a California limited liability company (“ARF”) and the referral partner (“Member”) named in the Agreement.

1. Definitions.  Capitalized terms used in the Agreement which are not otherwise defined in the Investment Agreement  or the Membership Agreement and used herein shall have the meaning ascribed to them as follows:

“Amortization Schedule” means the monthly report to be provided by ARF to Member on the Loan Asset, which shall show the detail of principal and interest collected on the Loan, the Net Servicing Receivable collections and payments, the Principal Balance and variances between scheduled principal and interest payments and actual payments collected.

“Collection Costs” means all third party costs incurred by ARF in servicing, managing, and collecting on the principal and finance charges due on Loans made to Merchants by Lenders, including without limitation, attorneys’ fees, filing fees, collection agency fees and any other costs associated with ARF’s servicing obligations under its MSA or incurred after a Loan Default and purchase of a Loan by ARF.

“Loan Asset” means Member’s Percentage of the Principal and the Net Servicing Receivable related to the Loan which Member will receive as provided herein.

“Loan Default” means a Loan that is 4 or more cumulative Weekly Payments in arrears, has closed its business or filed bankruptcy and/or is required to be purchased by ARF under its MSA with the Bank.

“Loan Number” means the loan identifier number used by ARF in its loan servicing business which is a unique identifier for each Loan.

“Loan Terms” means the loan payback multiple or applicable schedule of finance charges, repayment term and loan amount for the applicable Loan in which Member has Purchased the Loan Asset as provided herein.

“Merchant ID” means the Merchant identification number assigned to each Merchant by ARF in its loan servicing business which is a unique number to each Merchant.

“Maximum Purchase” means the maximum amount that a Member may Purchase in the Principal of the Loan Asset which shall not be more than 10% of the Loan Amount, or additional Advance, Refinance Loan Amount, Renewal Loan Amount or TLRP Loan Amount or Reset Loan Amount.

“Minimum Purchase” means the minimum amount of the  Principal of the Loan Asset which a Member may purchase on the initial Loan to a Merchant.  The Minimum Purchase is $2,000.  Member has the ability to elect to purchase its Percentage in subsequent Advances, Refinances, Renewals or TLRP Reset Loan Amounts.  There is no Minimum Purchase for an Additional Advance that does not involve the Renewal or Refinance of the existing Loan.

“MSA” means the Marketing and Servicing Agreement which ARF has entered into with each of its Lenders, including the Lender who has originated the Loan and pursuant to which ARF has the right to receive Servicing Revenue and the Net Servicing Receivable to be paid to Member as contemplated herein.

“Percentage” means the percentage of the Loan Asset which Member has purchased as provided herein. As provided herein, the Maximum Purchase Percentage is 10%.

“Purchase” means the purchase of a Percentage of the Loan Asset by Member,  related to a Loan made by Lender pursuant to the MSA to a Referral of Member.

“Purchase Amount” means the dollar amount paid by Member for the Purchase of the Percentage of the Loan Asset represented by the principal of the Loan Amount, Additional Advance, Refinance, Renewal or TLRP Loan Amount or Reset Loan Amount multiplied by the Percentage.

“Principal” means the Percentage of the Loan Amount which Member has purchased as part of the Loan Asset to be repaid pro-rata based upon the principal payments made on the Loan to the Lender.   Notwithstanding the foregoing, Member acknowledges that the Purchase Price of the Loan Asset is not being utilized by Lender to fund the Loan and shall be maintained by ARF on account for repayment thereof to Member in accordance with the terms herein.

“Principal Balance” means the then outstanding balance of the Member’s Percentage of the Principal due under the Loan Asset at any given time.

“Net Servicing Receivable” means the allocated Percentage of the Servicing Revenue related to the Loan Asset purchased by Member after deducting the Servicing Fee and a pro rata Percentage of Collection Costs incurred with respect to such Net Servicing Receivable.  The Net Servicing Receivable on a Loan shall also mean the amount of Loan proceeds collected by ARF in excess of the principal obligation due by the Merchant after ARF purchases a Loan from the Lender after a Loan Default.

“Referral Fee or Residual Fee Credit”  or “Fee Credit” means the amount of the Referral Fee or Residual Fee that is due to Member on a Referral in accordance with the Membership Agreement which Member has elected to apply as a credit to the Purchase of the Loan Asset under the Investment Agreement.  As provided herein, if the Referral Fee or Residual Fee due to Member is later disqualified as provided in the Membership Agreement, the portion of the Loan Asset that has been purchased with use of the Referral Fee or Residual Fee Credit will be deemed cancelled and null and void and any portion of the Purchase paid in cash shall be returned and this Investment Agreement shall be null and void.  Member shall not be permitted to apply any portion of the FDOT on a TLRP as a Referral Fee or Residual Fee Credit.

“Refinance Loan Amount,” “Renewal Loan Amount,” or “Reset Loan Amount”  means the new Loan Amount after refinancing and payoff of the existing Loan related to the Loan Asset and this Investment Agreement.  Member will be  repaid the Principal Balance of the existing Loan Asset and any accrued and unpaid Net Servicing Receivable related thereto (as determined in the calculation of the Loan’s Early Payoff Balance) with respect to the existing Loan Asset and be offered to participate in the Purchase of such new Loan Asset as provided herein.

“Servicing Fee” means the sum of 33% applied as a deduction to the Net Servicing Receivable determined by multiplying the  Servicing Revenue collected on a Loan under the MSA, multiplying it by the Member’s Percentage and then deducting the Servicing Fee to be retained by ARF (i.e., if the Servicing Revenue received by ARF is $1,000, and Member’s Percentage is 10% then the Net Servicing Receivable due after deduction of the Servicing Fee of $33, shall be $67).

“Servicing Revenue”  means the gross amount collected as servicing revenue under the MSA for a Loan originated by the Lender and serviced by ARF, and the amount of post default collections made on such Loan after it is purchased by ARF after a Loan Default.  The Servicing Revenue expressly excludes the Origination Fee received by Bank and paid to ARF on each Loan, Advance, Refinance, Renewal or TLRP Loan or Reset Loan.

“Validation”  or “Validated” shall mean ARF’s approval of the Purchase by Member of the Percentage of the Net Servicing Receivable under the Investment Agreement in its sole and complete discretion based upon such Member providing all required information in the Investment Agreement and making timely payment of the Purchase Amount in accordance with the instructions separately provided to Member by ARF.

“Validation Date”  shall mean that date that ARF completes the Validation and executes the Investment Agreement as set forth herein.

2. Purchase of Loan Asset and Payment.

(a)  Member shall be required to enter into this Investment Agreement within five (5) business days of the Loan Funding and to pay the Purchase Amount within five (5) business days of its timely completion and execution of the Investment Agreement.

(b) Based upon a Validated Investment Agreement, Member has purchased the Percentage of the Loan Asset as referenced in the Investment Agreement.  Member has either paid for the Purchase in Cash or a Fee Credit (or a combination of Cash and Fee Credit) which was due Member in connection with the Referral of the Merchant upon funding of the Loan as provided in the Membership Agreement.  If the Referral Fee or Residual Fee under which the Fee Credit was paid for the Purchase is later “disqualified” in accordance with the terms of the Membership Agreement (e.g., the Merchant defaults prior to the 15th day of the month following the Loan funding), then any portion of the Purchase of the Loan Asset by use of the Fee Credit is deemed to be null and void.  If any Fee Credit is disqualified and Member has also paid a portion of the Purchase in Cash, ARF will refund any remaining portion of the Purchase paid in Cash and this Investment Agreement will be cancelled and shall be null and void.

(c) If Member has paid all or a portion of the Purchase Amount with a Fee Credit, Member shall be treated as having been paid the Fee Credit for purposes of year-end tax reporting and ARF shall issue to Member an IRS From 1099 inclusive of such Fee Credit.   By entering into the Investment Agreement relating to the Loan Asset, Merchant is affirmatively waiving any right, or claim to receive payment of the applicable Referral Fee or Residual Fee due in cash and is bearing the risk of loss of said Referral Fee or Residual Fee if the Loan defaults and all or a portion of the Loan Asset is not paid. Member’s payment or deemed payment by use of the Fee Credit of the Purchase Amount is irrevocable and final.

(d) Except for an Additional Advance which does not involve the repayment of the existing Loan, each Purchase will not be less than the Minimum Purchase and the Maximum Purchase in each instance.  All Purchases shall be made by Member by either domestic wire transfer or by outbound ACH transfer from Member’s account in accordance with separate instructions provided to Member by ARF.  If Member fails to complete and execute the Investment Agreement and/or pay the Purchase Amount in a timely manner and in accordance with ARF’s instructions, ARF may reject the Purchase and return any Purchase Amount tendered for payment in its sole and complete discretion.

3.  Purchase of a new Loan Asset on Additional Advances, Renewals or TLRP Redraws. If Member has made a valid Purchase of the Loan Asset under a Loan made to a referred Merchant, Member shall have the right to purchase up to the same Percentage of the Loan Asset attributed to all subsequent Loans, Additional Advances,  Refinances, Renewals or TLRP Loans or Reset Loans made to the Merchant.  ARF will notify the Member “via email” of all Loans, Additional Advances, Refinances, Renewals or TLRP Loans or Reset Loans under which Member is entitled to Purchase a Loan Asset.  In all cases, including the Initial Loan, Merchant must elect to make such Purchase within five (5) business days of the Loan, Advance, Refinance, Renewal or TLRP Loan or Reset Loan funding by entering into a new Investment Agreement with respect to such new Loan Asset and paying the Purchase Amount for such new Loan Asset or electing to pay such Purchase with a Fee Credit within five (5) business days from completion and execution of the Investment Agreement.  If Merchant fails to make such timely election or payment, then the Member’s right to participate in the Purchase of the new Loan Asset with respect to subsequent financing shall be deemed waived and null and void. Any subsequent Loans, Advances, Refinances, Renewals or TLRP Loans or Reset Loans made to a referred Merchant and the terms thereof are in ARF’s and its Lender’s sole and complete discretion and Member shall have no right of Purchase unless such Loan, Advance, Refinance, Renewal or TLRP Loan or Reset Loan is approved and made by the Lender.

4. Payments on the Loan Asset.  ARF agrees to pay Member on a weekly basis until the Loan is paid in full, the Percentage of the Principal which has been paid by the Merchant and the Net Servicing Receivable based upon the Servicing Revenue received and paid to ARF on the Loan for the prior week; provided, however, that the first payment of the Principal and the Net Servicing Receivable will be on the second week following the week of Loan funding but in no event prior to the time that Member’s Investment Agreement has been Validated.  The Member’s Principal shall be repaid as payments of principal under the Loan (in accordance with the executed Merchant Agreement and Finance Charge Schedule) are paid and received by the Lender in an amount proportionate to Member’s Percentage and its Principal Balance shall be correspondingly reduced. The Member’s Net Servicing Receivable shall be equal to the total Servicing Revenue received by ARF on the Loan, multiplied by the Member’s Percentage and reduced by the Servicing Fee due to ARF hereunder.  The Member’s Principal payment shall be equal to the Percentage of the principal collected on the Loan by the Lender. For example, if ARF is paid $1,000 in Servicing Revenue on the Loan from the Lender and the Lender has received principal payments on the Loan of $1,000 in a week and the Member’s Percentage is 10% of the Loan Asset, then Member will receive a Net Servicing Receivable payment of $67 (i.e.,10% of $1,000 is $100, less the Servicing Fee of $33 due to ARF (33% of $100) for a Net Servicing Receivable payment of $67) and a Principal payment of $100 (or 10% of the total principal paid) which would reduce Member’s Principal Balance on the Loan Asset by $100.   If there are missed payments under the Merchant Agreement and ARF does not collect Servicing Revenue on the Loan from the Lender, or payments are returned or reversed for any reason, then no Principal or Net Servicing Receivable shall be paid for that week and any portion of the Principal or Net Servicing Receivable paid out by ARF may be reversed and debited back to ARF by ACH debit from the Member’s Account or offset against future payments of Principal or Net Servicing Receivable payments due to the Member for subsequent Merchant payments made or collected, less the Member’s Percentage of Collection Costs incurred.

5. ARF Loan Servicing and Administration.  ARF agrees to administer the Loan in accordance with the underwriting and servicing guidelines that it has agreed to with the Lender under its MSA and otherwise in a commercially reasonable manner consistent with the manner in which similar credits would be administered and shall exercise that degree of care that would ordinarily be exercised by lenders or loan servicers administering similar credits and otherwise in accordance with the usual practices and procedures employed by lenders or servicers on similar accounts in which it has not sold a Percentage of the Loan Asset and ARF agrees to take such actions as it deems to be necessary or appropriate to monitor and maintain the Merchant Agreements in such manner.  In the event of a Loan default (i.e., the Merchant becomes 4 or more cumulative Weekly Payments in arrears, or closes its business or declares bankruptcy), ARF is obligated under the MSA to purchase the Loan from the Lender and the Member’s Principal Balance will be utilized by ARF along with ARF’s funds for such purpose. ARF agrees to implement its typical collection practices and procedures after a Loan default, including without limitation employing outside legal counsel for collection claims.  ARF retains sole discretion at all times on the terms of settlement of Loans and Member shall have no right to approve or reject any such settlement. All Collection Costs incurred shall first be deducted against proceeds recovered from the Merchant or the Loan Guarantor and Member will receive its Percentage of the net proceeds recovered against principal of the Loan and thereafter will receive its Percentage (if any) of the Net Servicing Receivable, after application of the Servicing Fee to the net proceeds recovered in an amount in excess of the outstanding principal.  ARF and Lender shall have sole discretion in entering into an RNCO as defined in the Membership Agreement) with a Merchant and the Member shall then receive the portion of the Principal and the Net Servicing Receivable collected under the Loan as amended by the RNCO.

6. Representations, Warranties and Covenants of Member.  Member hereby represents, warrants, covenants and agrees that, as of the date of this Agreement, and as of the date of the Purchase of each individual Loan Asset in a Loan, that: (a) except as otherwise required by law, non-public information regarding the Merchant or any Guarantor given by ARF to Member, exclusive of information received by Member from sources other than ARF, will be treated by Member as confidential, will not be disclosed to any other party (except to ARF or other extender of credit with respect to the Loan without ARF’s prior written consent and will not be used by Member or any of its affiliates for any purposes other than as contemplated by this Agreement; (b) it has independently received all of the information it believes to be necessary to enable it to undertake its own analysis and make an independent and informed judgment with respect to the creditworthiness of the Merchant and the Guarantor and the sufficiency of the collateral, if any, and that it has continued reasonable access to inspect information regarding the Merchant (Member acknowledges that while a security interest is granted as security for repayment of the Loan, that the value of the assets securing the Loan are generally not sufficient to satisfy the repayment of the Loan and are typically subordinate to the liens of other senior financing); (c) it has a pre-existing personal or business relationship with the Merchant and the Guarantor; (d) it has without reliance on ARF, any Lender or the directors, officers, agents, employees or attorneys of ARF and Lender, and instead in reliance upon information supplied to it by or on behalf of the Merchant and upon such other information as Member has deemed appropriate, made its own independent credit analysis and decision to Purchase the Loan Asset; (e) it agrees that it shall, independently and without reliance upon ARF, any Lender or the directors, officers, agents, employees or attorneys of ARF or Lender, continue to make its own independent credit analysis and decisions in acting or not acting under this Agreement and the Purchase of the Loan Asset; (f) it is hereby acknowledged that ARF shall be under no obligation to provide Member any information regarding the Merchant except as expressly provided herein; (g) it acknowledges that ARF has made no guaranty of repayment of the Principal or payment of the Net Servicing Receivable it is further understood that Member’s only source of payment is through ARF, as the loan servicer under its MSA and if the Loan is purchased by ARF after a Loan Default, from the proceeds of collection efforts by ARF as provided herein, after payment of the Collection Costs incurred; (h) it has no independent right to pursue collection of the Principal Balance, the Net Servicing Receivable or the Loan directly against the Merchant;  (i) it has no direct interest in the Loan relating to the Loan Asset, or claim or right against Lender or interest in ARF’s MSA with the Lender; (j) it acknowledges that ARF has made no representations to it other than those expressly made in this Agreement, including, but not limited to, representations regarding the creditworthiness of a Merchant or regarding the sufficiency of any collateral for the Loan, if any; (k) it is acquiring the Loan Asset for its own account for investment with the present intention to hold the same for investment and not for resale; (l) its execution and delivery of this Agreement and its purchase of an interest in the Loan Asset does not constitute a violation of any agreement, law, statute, or regulation, which is binding on it; (m) the interests of ARF and Member shall be pari passu in the outstanding principal balance of the Loan and in the Servicing Revenue and no party shall have any priority over the other, except with respect to the Servicing Fee and Collection Costs incurred by ARF which shall first be deducted from the Servicing Revenue and the Principal Balance and the Net Servicing Receivable before payment to Member; (n) any historic portfolio performance or analytical information provided by ARF to Member at Member’s request and in ARF’s discretion is deemed to be confidential and proprietary to ARF and Member acknowledges that such information is not predictive of the actual performance of any individual loan and that any individual loan, including the Loan relating to the Loan Asset, involves a degree of risk of loss of the entire investment made in the Loan and consequently the risk of loss of the investment made by Member in the Loan Asset; and (o) it is able to bear the economic risk of this investment and, without limiting the generality of the foregoing, is able to hold this investment for an indefinite period of time and it has adequate means to provide for its current needs and personal contingencies and has a sufficient net worth to sustain the loss of the  entire Loan Asset.

7. Representations, Warranties and Covenants of ARF.  ARF hereby represents, warrants and covenants to Member that as of the date of this Agreement , (i) subject to ARF’s full and faithful performance of its obligations under the MSA, ARF has the rights to act as the loan servicer under the MSA with Lender and to collect the Servicing Revenue under the Loan and has not otherwise sold, transferred or assigned any rights in the Servicing Revenue under the Loan and such Servicing Revenue and the Net Servicing Receivable are free and clear of any and all liens and ARF has not been pledged or encumbered such interest except as provided in the MSA (ii) ARF has the right and obligation to purchase the Loan after a Loan Default from the Lender pursuant to its MSA, (iii) ARF has full power, authority and legal right and has taken all actions necessary to execute and deliver this Agreement and perform its obligations hereunder, (iv) ARF’s execution and delivery of this Agreement and its sale of the Principal and Net Servicing Receivable hereunder does not constitute a violation of any agreement, law, statute, or regulation, which is binding on it, (v) ARF acknowledges that the interests of the principal of the Loan and the Servicing Revenue shall be pari passu and ARF’s interest shall not have any priority over the Member except with respect to payment of the Servicing Fee and the Percentage of Collection Costs incurred, (vi) the Loan to which the Loan Asset relates has been approved by Lender in accordance with the underwriting guidelines established by ARF and Lender in the MSA, including any approved “exceptions” and has been funded by Lender, (vii) ARF has in its possession, or will have in its possession prior to Member’s acquisition of the Loan Asset, executed and, where appropriate, acknowledged counterparts of the Merchant Agreements, which are genuine copies of documents concerning the Loan and are, to the best of ARF’s knowledge, accurate and complete copies of those documents within the Lender’s file, (viii) In the event that ARF acquires actual knowledge of any default under the Merchant Agreement, ARF shall, as soon as possible, give Member notice of such default, and (ix)  In the event that enforcement actions are instituted, ARF shall keep Member informed as to the progress of the proceedings.

8. Relationship of Parties.  Member acknowledges and agrees that its interest in the Loan Asset remains subject to certain rights and obligations of Lender and ARF under the MSA. Member shall look solely to ARF, and not to Lender, to perform the obligations of ARF under this Investment Agreement. This Agreement relates solely to the Purchase of the Loan Asset only and is not intended to form a partnership or joint venture between ARF and Member. Member acknowledges and agrees that it has no direct interest in the Loan, it has no independent right to pursue payment of the Loan, it has no right or interest in the MSA or rights against the Lender.  It will look solely to ARF for performance of ARF’s obligations under this Investment Agreement.

9. Records and Reporting.  ARF shall maintain books and records reflecting all transactions relating to the Loan, the Principal Balance, and the Net Servicing Receivable, which shall be available for inspection by Member during ARF’s  normal business hours upon prior written request. ARF shall provide to Member with an Amortization Schedule with respect to the Loan, the Principal Balance, and the Net Servicing Receivable on a monthly basis within 10 days of the month relating to the previous months Loan performance.

10. Servicing Fee.  Member agrees that ARF will collect and charge the Servicing Fee from Member’s Percentage of the Servicing Revenue which will result in the Net Servicing Revenue.  The Servicing Fee is acknowledged to be a fair allocation of cost incurred by ARF for its costs of underwriting and servicing the Loan relating to the Net Servicing Receivable as well as bank yield and charges incurred under the MSA, and fees and commissions paid to sales representatives and referral partners.

11. Term.  This Investment Agreement will remain in full force and effect until the earlier to occur of: (i) payment in full of the Loan and disbursement to Member of all of the Net Servicing Receivable to which it is entitled to receive under this Investment Agreement, (ii) the final settlement and payment of same by the Merchant and the Guarantor after a Loan Default which settlement may be entered into in ARF’s sole and complete discretion without consultation or approval by Member, or (iii) the dissolution and/or discharge in bankruptcy of the obligations of the Merchant and Guarantors under the Loan or ARF otherwise determines that the Loan is uncollectible.

12. Refund; Offset.  If Lender or ARF is required to refund to a Merchant any amount in connection with the Merchant Agreement on the Loan related to the Loan Asset, then Member shall pay to ARF its pro rata share of such refund equal to its Percentage that the refund relates to its Loan Asset.  Furthermore, Member agrees that ARF shall have the right of setoff relating to any obligations of Member under this Investment Agreement or the Membership Agreement and may collect such amounts against the Loan Asset payments otherwise due Member.

13. Indemnification. 

(a) Member hereby agrees to indemnify and hold harmless ARF, and its directors, officers, employees, and affiliates (each, an “Indemnified ARF Person”) in connection with any third-party losses, claims, damages, liabilities, or other expenses to which such Indemnified ARF Person may become subject, insofar as such losses, claims, damages, liabilities or other expenses (or actions or other proceedings commenced or threatened in respect thereof) that arise out of, or in any way relate to, or result from, breach by Member of any representation, warranty or covenant of Member in this Agreement.  Member further agrees to reimburse each Indemnified ARF Person for legal or other expenses incurred in connection with investigating, defending, or participating in any such loss, claim, damage, liability, or action or other proceeding (whether or not such Indemnified ARF Person is a party to any action or proceeding out of which any such expenses arise).

(b) ARF hereby agrees to indemnify and hold harmless Member, and its directors, officers, employees, and affiliates (each, an “Indemnified Member Person”) in connection with any third-party losses, claims, damages, liabilities, or other expenses to which such Indemnified Member Person may become subject, insofar as such losses, claims, damages, liabilities or other expenses (or actions or other proceedings commenced or threatened in respect thereof) that arise out of, or in any way relate to, or result from, breach by ARF of any representation, warranty or covenant of ARF in this Agreement.  ARF further agrees to reimburse each Indemnified Member Person for legal or other expenses incurred in connection with investigating, defending, or participating in any such loss, claim, damage, liability, or action or other proceeding (whether or not such Indemnified Member Person is a party to any action or proceeding out of which any such expenses arise).  Notwithstanding the above, the total liability and obligation of ARF for any indemnification obligation under this Investment Agreement shall not exceed the Net Servicing Receivable which Member would have received assuming the Loan relating to such Net Servicing Receivable was fully paid in accordance with its terms.

(c)  No party shall have an obligation hereunder to indemnify any indemnified person for any loss, claim, damage, liability, or expense which substantially resulted from the negligence or willful misconduct of such indemnified person.  Nor shall either ARF or Member be responsible or liable to the other for consequential damages which may be alleged as a result of this Agreement.

14.  General Provisions. 

(a) Member shall not assign in whole or in part its rights or obligations under this Agreement without the express written consent of ARF.  This Agreement shall be binding upon and shall inure to the benefit of each party’s successors and permitted assigns.

(b) The Investment Agreement and the Membership Agreement,  including the Terms and Conditions thereto, embodies the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes any and all prior agreements, arrangements and understandings relating to the matters provided for herein.  Except for changes to the Terms and Conditions by ARF as provided in the Membership Agreement, no alteration, waiver, amendment, change or supplement hereto shall be binding or effective unless the same is set forth in writing signed by a duly authorized representative of each party.

(c) For the convenience of the parties, any number of counterparts of this Agreement may be executed by the parties hereto.  Each such counterpart shall be, and shall be deemed to be, an original instrument, and all such counterparts taken together shall constitute one and the same agreement.  Notices permitted or required under this Agreement may be given by overnight courier (and shall be deemed delivered one day after they are sent) or by email (and shall be deemed delivered when sent) at the physical and email address of Member and ARF listed in the Agreement.

(d) Each person executing this Agreement on behalf of a party represents that it has the legal capacity to enter into this Agreement on behalf of such party and upon its execution hereof, this Agreement is a legally enforceable and binding obligation of such party.  The execution of the Agreement shall constitute agreement and acceptance of these Terms and Conditions which are incorporated into the Agreement in full and without the need for separate signature or execution of these Terms and Conditions.