13. About us
Linked P2P Limited is a company incorporated in Ireland, whose registered number is 491763 and whose registered office and principal place of business is at Third Floor, 43-45 Middle Abbey Street, Dublin 1, Ireland. Email email@example.com.
14. Amendments to these terms and conditions
- We may update or amend these terms and conditions from time to time to comply with law or to meet our changing business requirements in our sole and absolute discretion. We may not always be able to give you advanced notice of such updates or amendments but we will always post them on Linked Finance so you can view them when you next log in. By continuing to access Linked Finance, you agree to be bound by the terms of these updates and amendments.
- These terms and conditions were last updated in November 2020.
15. Complaints Handling
- If you want to make a complaint about Linked Finance you can email firstname.lastname@example.org, with brief details of your complaint and your account number and/or email address in use on Linked Finance. Our Customer Service staff will acknowledge your complaint within five business days. They will then investigate and send you an initial response. This should take no longer than a further five business days. If you are not satisfied by our response, you must contact the Customer Services Manager, who will respond by email within a further five business days.
- If you are not satisfied with the response from the Customer Services Manager, you can email email@example.com, enclosing the responses already given to you. Your email will then be referred to the Chief Executive Officer, who will respond by email within five business days.
16. Other important terms
- You are responsible for all telecommunications and other costs incurred by you in accessing Linked Finance.
- You agree that all documents that we are entitled to send you electronically may be delivered to you at your Linked Finance Account, including any notices we give you. You will also receive by email to your email address specified in your Linked Finance Account regular communications in relation to the service and your use of Linked Finance.
- The records kept in Linked Finance shall be conclusive of the facts and matters they purport to record.
- If any of these terms and conditions is found to be illegal, invalid or unenforceable by any court of competent jurisdiction, the remainder shall continue in full force and effect.
- All disclaimers, indemnities and exclusions in this Agreement shall survive termination of this Agreement for any reason.
- We may, in whole or in part, release, compound, compromise, waive or postpone, in our absolute discretion, any liability owed to us or right granted to us in this Agreement without in any way prejudicing or affecting our rights in respect of that or any other liability or right not so released, compounded, compromised, waived or postponed.
- No single or partial exercise, or failure or delay in exercising any right, power or remedy by us shall constitute a waiver by us of, or impair or preclude any further exercise of, that or any right, power or remedy arising under these terms and conditions or otherwise.
- This Agreement and the Loan Contract sets out the entire agreement between you, us and other users of Linked Finance with respect to its subject matter and supersedes any and all representations, communications and prior agreements (written or oral) made by you or us, with the exception of any existing Loan Contracts which in all cases prevail.
- This Agreement shall be governed by and construed in accordance with Irish law. In the event of any matter or dispute arising out of or in connection with this Agreement, you and we by our participation in the Loan Contract submit for the resolution of any such matter or dispute to the exclusive jurisdiction of the Courts of Ireland.
Appendix 1 – Searches
(i) Judgment search
This consists of a search against the Borrower in the Judgments Office of the High Court to confirm whether the Borrower ever had any outstanding Judgments against it.
(ii) CRO search (for companies)
This consists of a search in the CRO against a company Borrower which will show the following: (i) who the directors are; (ii) whether the company has any charges over your assets; and (iii) the registration status of the company.
(iii) Petitions search (for companies)
This consists of a search in the Central Office of the High Court against a company Borrower to confirm whether there have ever been any petitions made to wind up the company.
(iv) Bankruptcy search (for an individual)
This consists of a search in the Central Office of the High Court against the individual Borrower to see if he/she has ever been declared bankrupt.
(v) Identity and Address searches (for an individual)
This consists of searches to ensure each borrower and lender is exactly who they say they are.
(vi) Filed Accounts searches (for companies)
This consists of searches to validate the most recent filed accounts for each applicant company.
(vii) Irish Credit Bureau search (for companies)
This consists of a review of each company’s credit history and will be provided to us directly by those companies.
(viii) Last six months original bank statements (for companies)
This consists of a review of the recent performance of the business.
(ix) Tax Clearance Certificates (for companies)
This consists of a review and verification that each applicant borrower’s tax affairs are up to date.
Appendix 2 – Secured Loan Security Trustee Terms
In this Appendix 2, words and expressions defined in the Agreement, unless otherwise defined in this Appendix 2, shall have the same meaning in this Appendix 2 as are ascribed to them in the Agreement. In addition, in this Appendix 2:
Beneficiaries means the Lenders and the Security Trustee and Beneficiary means any of them.
Borrower, for the purposes of this Appendix 2, means a Borrower providing security in favour of the Security Trustee as required by a Loan Contract to which that Borrower is a party and in connection with a Secured Loan.
Debt means all present and future liabilities (actual or contingent) payable or owing by a Borrower to the Beneficiaries under or in connection with the Finance Documents together with in each case:
- any refinancing, novation, refunding, deferral, or extension of any of those liabilities;
- any further advances which may be made by the Lenders to a Borrower any agreement expressed to be supplemental to any of the Finance Documents plus all interest, fees and costs in connection therewith;
- any claim for damages or restitution in the event of rescission of any of those liabilities or otherwise in connection with the Finance Documents;
- any claim against a Borrower flowing from any recovery by a Borrower of a payment or discharge in respect of those liabilities on grounds of preference or otherwise; and
- any amounts (such as post-insolvency interest) which would be included in any of the above but for any discharge, non-provability, unenforceability or non-allowability of the same in any insolvency or other proceedings.
Discharge Date means the date on which all Debt relating to a Borrower has been fully paid and discharged and the commitments and obligations of the Beneficiaries are cancelled whether or not as the result of enforcement.
Enforcement Event means the occurrence of any event which is classified as a breach, default, event of default or termination event (howsoever described) pursuant to any of the Finance Documents.
Finance Documents means a Loan Contract (to include this Agreement), a Mortgage and any ancillary documents arising in connection therewith.
Mortgage means a Mortgage entered into by a Borrower in favour of the Security Trustee and in accordance with the terms of a Loan Contract for a Secured Loan.
Recovery means any sum of money received or recovered by the Beneficiaries or any of them on or at any time after the occurrence of an Enforcement Event on account of any amount outstanding under any Finance Document, whether as proceeds of enforcement of security, the exercise of a right of set-off, the receipt or recovery of payment or otherwise howsoever after deducting therefrom:
- the reasonable and proper costs and expenses (including without limitation the reasonable costs of legal advisers) incurred by the Beneficiaries in effecting such recovery; and
- any sums required by law or court order to be paid to third parties on account of claims preferred by law over the claims of the Beneficiaries,
(together the Recoveries).
1.2. Amendment and variations
References in this Appendix 2 to (or to any provisions of, or definition contained in) this Appendix 2 or any other document shall be construed as references to this Appendix 2, that provision, definition or document as in force for the time being and as amended from time to time but only to the extent that any such amendment has been made in accordance with the relevant terms.
If, at any time after any Beneficiary has received (and is entitled to retain) full recovery of all Debt, the Beneficiary receives any amount which it is (or would, but for the occurrence of the Discharge Date, have been) obliged to apply in respect of the Debt it will forthwith pay such amount to the Security Trustee for application in accordance with the terms of this Appendix 2.
3. Proceeds of enforcement of security
3.1. Order of application
Subject to the rights of any prior or preferential security interests or creditors, the net proceeds of enforcement of the security conferred by a Mortgage shall be paid to the Security Trustee and applied in the following order:
| || |
|First||in payment of all costs, charges, expenses and liabilities (and all interest thereon as provided in the relevant Mortgage) incurred by or on behalf of the Security Trustee and any receiver, attorney or agent in connection with carrying out or purporting to carry out its duties and exercising its powers and discretions under the relevant Mortgage and the remuneration of the Security Trustee and every receiver under the relevant Mortgage (including without limitation any costs related to the amount of time spent by the Security Trustee or receiver);|
|Second||in payment (to the extent that they are, under the Finance Documents, payable) of all costs and expenses incurred by or on behalf of the Beneficiaries in connection with such enforcement;|
|Third||in payment to the Lenders of the Secured Loan in respect of which the relevant Mortgage was granted for application towards the balance of the Debt pro-rata to the amounts loaned by them to the Borrower; and|
|Fourth||the payment of the surplus (if any) to the relevant Borrower or other person entitled thereto.|
3.2 Good Discharge
An acknowledgement of receipt signed by the relevant person to whom payments are to be applied under Section 3.1 (Order of application) shall be a good discharge of the Security Trustee.
4. Enforcement of security
4.1. Enforcement instructions
The Security Trustee shall refrain from enforcing the security conferred by a Mortgage unless and until instructed by Linked P2P provided that the Security Trustee may convert any floating charge in a Mortgage into a fixed charge at any time after the presentation of a winding up or examination petition in respect of an incorporated Borrower party to such Mortgage, whether or not so directed by Linked P2P.
4.2. Manner of enforcement – Instructions
If Linked P2P instructs the Security Trustee to enforce the security conferred by a Mortgage, it shall do so:
- assuming the same to be enforceable in such manner as it sees fit; and
- subject as required by applicable law, solely having regard to the interests of the Beneficiaries.
Without prejudice to the duties of the Security Trustee and the other Beneficiaries arising by operation of law, no such Beneficiary shall be responsible to a Borrower for any failure to enforce or to maximise the proceeds of any enforcement, and the Security Trustee may cease any such enforcement at any time.
4.3. Sales by Security Trustee
If pursuant to an enforcement of a Mortgage, the Security Trustee sells or appoints a receiver or receivers to sell or otherwise disposes of any asset secured by the relevant Mortgage, the Security Trustee is authorised by the other Beneficiaries to execute on behalf of itself and each other Beneficiary any release of the security created by that Mortgage over that asset without the need for any further referral to or authority from the Beneficiaries.
5. equalisation arrangements
5.1. Equalisation Payments
If, following an Enforcement Event, any amount owing by a Borrower under the Finance Documents to a Lender (a Recovering Creditor) is discharged by payment, set-off or any other manner other than through the Security Trustee under this Finance Documents, then:
- the Recovering Creditor must, within three Business Days supply details of the recovery to the Security Trustee;
- the Security Trustee must calculate whether the recovery is in excess of the amount which the Recovering Creditor would have received if the recovery had been received by the Security Trustee under the relevant Mortgage; and
- the Recovering Creditor must pay to the Security Trustee an amount equal to the excess (the redistribution).
5.2. Effect of redistribution
- The Security Trustee must treat a redistribution as if it were the proceeds of enforcement of the relevant Mortgage and distribute it in accordance with this Appendix 2.
- When the Security Trustee makes a distribution under paragraph (a) above, the Recovering Creditor will be subrogated to the rights of the Beneficiaries which have shared in that redistribution.
- If and to the extent that the Recovering Creditor is not able to rely on any rights of subrogation under paragraph (b) above, the relevant Borrower will owe the Recovering Creditor a debt which is equal to the redistribution, immediately payable and of the type originally discharged.
- a Recovering Creditor must subsequently return a recovery, or an amount measured by reference to a recovery, to the relevant Borrower; and
- the Recovering Creditor has paid a redistribution in relation to that recovery,
each Lender (other than the Recovering Creditor) must reimburse the Security Trustee all or the appropriate portion of the redistribution paid to that Lender for the account of the Recovering Creditor, together with interest for the period while it held the redistribution. In this event, the subrogation in paragraph (b) above will operate in reverse to the extent of the reimbursement.
6. the security trustee
6.1. Appointment by the Lenders
Each Beneficiary (other than the Security Trustee) irrevocably appoints the Security Trustee to hold any security created by a Mortgage on trust for the Beneficiaries and in connection with the relevant Finance Documents, and irrevocably authorises the Security Trustee on its behalf to perform the duties and to exercise the rights, powers and discretions that are specifically delegated to it under or in connection with the Finance Documents, together with any other incidental rights, powers and discretions and execute the relevant Mortgage and any documents ancillary thereto on its behalf. The Security Trustee shall have only those duties which are applicable to it in the Finance Documents. Those duties are solely of a mechanical and administrative nature.
6.2. Direction of Linked P2P
The Security Trustee shall be fully protected if it acts in accordance with the instructions of Linked P2P in connection with the exercise of any right, power or discretion or any matter not expressly provided for in the Finance Documents. In the absence of such instructions, the Security Trustee may act as it considers in the best interests of all the Beneficiaries. The Security Trustee is not authorised to act on behalf of a Lender (without first obtaining that Lender’s consent) in any legal or arbitration proceedings relating to any Finance Document. The Security Trustee shall be entitled to request instructions or clarifications of any instruction from Linked P2P as to whether and in what manner it should exercise or refrain from exercising any right, power, authority or discretion. The Security Trustee may refrain from acting unless and until it receives any such instruction or clarification. Any instruction given by Linked P2P shall be binding on all Lenders. The Security Trustee may refrain from acting in accordance with any instructions until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent that any in the Finance Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions.
6.3. Instructions of Linked P2P
Instructions of Linked P2P shall be addressed to the Security Trustee and in writing signed by a director of Linked P2P. The Security Trustee shall be entitled to act on any instruction which appears on its face to be correctly given and signed by a director of Linked P2P without any requirement on its part to verify any formality or the identity of any director purporting to sign on behalf of Linked P2P or that any director signing or purporting to sign on behalf of Linked P2P was so authorised or could otherwise validly bind Linked P2P.
The Security Trustee may act under the Finance Documents through its personnel and agents.
6.5. Responsibility for documentation
The Security Trustee is not responsible to any Lender or Borrower for:
- the execution, legality, genuineness, validity, enforceability, completeness or sufficiency of any Finance Documents or any other documents;
- the collectability of amounts payable under any Finance Documents; or
- the accuracy of any statements (whether written or oral) made in or in connection with any Finance Documents.
- The Security Trustee is not obliged to monitor or enquire as to whether or not an Enforcement Event or any other breach of a Finance Document has occurred. The Security Trustee will not be deemed to have knowledge of the occurrence of an Enforcement Event or any other breach of a Finance Document.
- The Security Trustee may require from the Lenders the receipt of security satisfactory to it whether by way of payment in advance or otherwise, against any cost, liability or loss which it will or may incur in taking any proceedings or action arising out of or in connection with any Finance Document before it commences those proceedings or takes that action.
- Without limiting paragraph (b) below, the Security Trustee will not be liable to any Lender or Borrower for any action taken or not taken by it under or in connection with any Finance Documents, unless directly caused by its gross negligence or wilful misconduct or that of its agents.
- No Lender or Borrower may take any proceedings against any officer, employee or agent of the Security Trustee in respect of any claim it might have against the Security Trustee or in respect of any act or omission of any kind (including negligence or wilful misconduct) by that officer, employee or agent in relation to any Finance Document.
The Security Trustee may:
- rely on any notice or document believed by it to be genuine and correct and to have been signed by, or with the authority of, the proper person;
- rely on any statement made by a director or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify; and
- engage, pay for and rely on legal or other professional advisers or experts selected by it (including those in the Security Trustee’s employment and those representing a party to the Finance Documents other than the Security Trustee) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.
- The Security Trustee shall promptly forward to the person concerned the original or a copy of any document which is delivered to it in its capacity as Security Trustee.
- The Security Trustee is not obliged to review or check the accuracy or completeness of any document it forwards to another party to the Finance Documents.
- Except as provided above, the Security Trustee has no duty:
- either initially or on a continuing basis to provide any Lender with any credit or other information concerning the financial condition or affairs of a Borrower or any related entity of it whether coming into its possession or that of any of its related entities before, on or after the date of the relevant Loan Contract and Mortgage; or
- to request any certificates or other documents from a Borrower.
6.10. The Security Trustee
- The Security Trustee may:
- carry on any business with a Borrower or its related entities;
- act as agent or trustee for, or in relation to any financing involving, a Borrower or its related entities; and
- retain any profits or remuneration in connection with its activities under the Finance Documents or in relation to any of the foregoing.
- In acting as Security Trustee for the Lenders, the Security Trustee’s agency division shall be treated as a separate entity from any other of its divisions or departments. Any information acquired by the Security Trustee which, in its opinion, is acquired by it otherwise than in its capacity as the Security Trustee may be treated as confidential by the Security Trustee and will not be deemed to be information possessed by the Security Trustee in its capacity as such.
- The Security Trustee may deduct from any amount received by it for the Lenders pro-rata any unpaid fees, costs and expenses of the Security Trustee incurred by it in connection with the Finance Documents.
6.11. Possession of documents
The Security Trustee is not obliged to hold in its own possession a Mortgage, title deeds or any other document in connection with a Mortgage.
6.12. Release of security
- If a disposal of any asset subject to security created by a Mortgage is made to a person in the following circumstances:
- Linked P2P agrees to the disposal;
- the disposal is allowed by the terms of the Finance Documents and will not result or could not reasonably be expected to result in any breach of any term of any Finance Document;
- the disposal is being made at the request of the Security Trustee in circumstances where any security created by a Mortgage has become enforceable; or
- the disposal is being effected by enforcement of a Mortgage,
- the asset being disposed of will be released from any security over it created by the relevant Mortgage. However, the proceeds of any disposal (or an amount corresponding to them) must be applied in accordance with the requirements of the Finance Documents (if any).
- If the Security Trustee is satisfied that a release is allowed under this Section 6.12, the Security Trustee must execute (at the request and expense of the relevant Borrower) any document which is reasonably required to achieve that release. Each Lender irrevocably authorises the Security Trustee to execute any such document.
6.13. Resignation of Security Trustee
- Notwithstanding its irrevocable appointment, the Security Trustee may resign by giving notice to the Lenders and the Borrower, in which case the Security Trustee may appoint one of its Affiliates as successor Security Trustee or, failing that, Linked P2P may appoint a successor Security Trustee.
- The resignation of the retiring Security Trustee and the appointment of any successor Security Trustee will both become effective only upon the successor Security Trustee notifying all relevant Lenders and Borrowers that it accepts the appointment. On giving the notification, the successor Security Trustee will succeed to the position of the retiring Security Trustee and the term “Security Trustee” will mean the successor Security Trustee.
- The retiring Security Trustee shall make available to the successor Security Trustee such documents and records and provide such assistance as the successor Security Trustee may reasonably request for the purposes of performing its functions as the Security Trustee under the Finance Documents.
- If the appointment of a successor Security Trustee is to be made by Linked P2P but it has not, within 30 days after notice of resignation, appointed a successor Security Trustee which accepts the appointment, the Security Trustee may appoint a successor trustee acting in its sole discretion.
- Upon its resignation becoming effective, this Section 6.13 shall continue to benefit the retiring Security Trustee in respect of any action taken or not taken by it under or in connection with the Finance Documents while it was the Security Trustee, and, subject to paragraph (d) above, it shall have no further obligation under any Finance Document.
6.14. Security Trustee as trustee
- The Security Trustee in its capacity as trustee under a Mortgage and this Agreement or otherwise shall not be liable for any failure, omission, or defect in perfecting the security constituted by any Finance Document.
- The Security Trustee in its capacity as trustee or otherwise may accept without enquiry such title as the relevant security provider may have to the property over which security is intended to be created by any Finance Document.
- The Security Trustee may refrain from doing anything which might, in its opinion, constitute a breach of any law or regulation or be otherwise actionable at the suit of any person, and may do anything which, in its opinion, is necessary or desirable to comply with any law or regulation of any jurisdiction.
- Without limiting paragraph (a) above, the Security Trustee need not disclose any information relating to a Borrower or any of its related entities if the disclosure might, in the opinion of the Security Trustee, constitute a breach of any law or regulation or any duty of secrecy or confidentiality or be otherwise actionable at the suit of any person.
6.16. Credit approval and appraisal
Without affecting the responsibility of a Borrower for information supplied by it or on its behalf in connection with any Finance Document, each Lender by its participation in the relevant Loan Contract confirms that:
- It has made its own investigation into the legality, validity, effectiveness, adequacy and enforceability of the Finance Documents;
- It has made its own independent investigation and assessment of the financial condition and affairs of the relevant Lender and its related entities and has not relied on any information provided to it by the Security Trustee in connection with any Finance Document;
- will continue to make its own independent appraisal of the creditworthiness of a Borrower and its related entities while any amount is or may be outstanding under the Finance Documents; and
- approves the form of the Mortgage.
7. Waivers, remedies cumulative
The rights of the Security Trustee as specified in the Finance Documents:
- may be exercised as often as necessary;
- are cumulative and not exclusive of its rights under the general law; and
- may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver of that right.