The following terms and conditions, to include the appendices, (the "Agreement") govern the use of the Linked Finance online funding platform and website accessible via https://www.linkedfinance.com ("Linked Finance") which is operated by Linked P2P Limited ("Linked P2P") whose details are set out in Section 13 below.
This Agreement specifies: (a) how Linked Finance works; (b) how you may use Linked Finance as an eligible Borrower and how Loans that are entered into with eligible lenders ("Lender(s)") via Linked Finance are made and administered.
For the purposes of this Agreement:
You must read the Loan Contract (to include this Agreement) and carefully print a copy for future reference. By using Linked Finance, you confirm that you have read, understood and agree to the Loan Contract (to include this Agreement) (as amended from time to time in accordance with Section 14 below). Where you are acting on behalf of a partnership or a limited company you agree that you are entering into the Loan Contract (to include this Agreement), using Linked Finance and entering into any subsequent Loan Contract on behalf of such partnership or limited company and you warrant and represent that you are duly authorised to do so.
The information provided on Linked Finance is directed solely to and is solely for use by any person or entity who meets the criteria set out in the Loan Contract (to include this Agreement), and not any person or entity in any jurisdiction where such distribution or use would be contrary to applicable law or regulation.
If you do not agree with the provisions of the Loan Contract (to include this Agreement), you must stop using Linked Finance immediately.
Each Loan is subject to a Loan Contract. Each Loan Contract is a separate agreement from this Agreement and is made only between the relevant Lender(s) and Borrower. Our participation in any Loan Contract is limited to the provisions of Section 8 (Missed Payments) and we are otherwise not a party to any Loan Contract. This Agreement governs the use of Linked Finance and the manner in which secured and unsecured Loans are managed.
As a Borrower, you agree and acknowledge that:
We have appointed an independent third party to ensure the orderly administration of outstanding Loan Contracts in the event that we cease to operate for any reason (the "Back-up Servicer"). If this happens:
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.
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.
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.
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.
This consists of searches to ensure each borrower and lender is exactly who they say they are.
This consists of searches to validate the most recent filed accounts for each applicant company.
This consists of a review of each company’s credit history and will be provided to us directly by those companies.
This consists of a review of the recent performance of the business.
This consists of a review and verification that each applicant borrower’s tax affairs are up to date.
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:
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:
(together the Recoveries).
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.
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.|
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.
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.
If Linked P2P instructs the Security Trustee to enforce the security conferred by a Mortgage, it shall do so:
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.
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.
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:
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.
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.
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.
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.
The Security Trustee is not responsible to any Lender or Borrower for:
The Security Trustee may:
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.
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).
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:
The rights of the Security Trustee as specified in the Finance Documents:
Delay in exercising or non-exercise of any such right is not a waiver of that right.
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.