Terms of Service - Merchant Cash Advance Borrowers
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 Facilities that are entered into with eligible lenders (“Lender(s)”) via Linked Finance are made and administered.
For the purposes of this Agreement:
- “Facility” means the cash advance facility entered into between the Lender(s) and a Borrower via Linked Finance;
- “Facility Contract” means:
- in the case of an unsecured Facility, the contract entered into between the Lender(s) and the Borrower (which includes this Agreement), regulating the terms of supplying the Borrower with the Facility; and
- in the case of a secured Facility, the contract entered into between the Lender(s), an appointed security trustee (as detailed in Section 4(c) and 8.2 and the Borrower (which includes this Agreement), regulating the terms of supplying the Borrower with the Facility;
- “Linked Recoveries Limited” means:
- in the case of an unsecured Facility, the company to whom any debt owed to Lenders may be assigned and/or novated in the event of legal proceedings following default. This ensures there is only one claimant in any legal claim against the Borrower; and
- in the case of a secured Facility, the company appointed as security trustee (acting on behalf of the Lender(s)) (as detailed in Section 4(c) and 8.2; and
- “Limited Company” or “Company” may refer to any type of limited liability company including but not limited to ‘Private Limited Company’, a ‘Designated Activity Company’, a ‘Company Limited by Guarantee’, a ‘Public Limited Company’ and equivalent forms of company incorporation in any relevant jurisdiction. It may also refer to charities, clubs, trusts and other organisation.
You must read the Facility 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 Facility 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 Facility Contract (to include this Agreement), using Linked Finance and entering into any subsequent Facility 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 Facility 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 Facility Contract (to include this Agreement), you must stop using Linked Finance immediately.
Each Facility is subject to a Facility Contract. Each Facility Contract is a separate agreement from this Agreement and is made only between the relevant Lender(s) and Borrower. Our participation in any Facility Contract is limited to the provisions of Section 8 (Missed Payments) and we are otherwise not a party to any Facility Contract. This Agreement governs the use of Linked Finance and the manner in which secured and unsecured Facilities are managed.
1. Registering on Linked Finance
- When you apply to be a Borrower, we will require certain information from you, which you authorise us to verify via third parties, including information that we in our sole and absolute discretion determine is necessary to meet our obligations under the Criminal Justice (Money Laundering and Terrorist Financing) Acts 2010 to 2018. You warrant and represent to us that all information provided to us in the course of your registration and use of Linked Finance is true and accurate in all respects. You agree to promptly update such information if it changes.
- We use our own internal guidelines and policies when assessing Borrower registration applications, and we have sole and absolute discretion as to whether we will allow you to register and make use of Linked Finance. If you do not provide to us all appropriate information and documentation, you will not be permitted to use Linked Finance.
- As part of the registration process, you must set up an account on Linked Finance (your “Linked Finance Account”) for the purpose of collecting and providing information relating to your activity on Linked Finance and your Facility Contracts. Your Linked Finance Account does not hold any funds and does not constitute a payment account or bank account.
- On registering with us, you must provide a display name, password, Personal Access Number (“PAN”), email address and the answers to security questions. To access your Linked Finance Account you will need to enter your email address, password, some of your PAN and/or may need to answer one or more security questions. Your email address and password are personal to your Linked Finance Account and are not transferable. Your display name will be visible to other users of Linked Finance. As such, display names which may be deemed to be offensive, misleading, disruptive or promotional should not be chosen. Linked P2P, at its sole discretion, reserves the right to edit display names without prior notification or consultation.
- You must keep your password, PAN and the answers to security questions confidential and secure at all times. You are responsible for all information and activity on Linked Finance by anyone using your account. In addition, if you authorise an employee, subcontractor or agent to use your Linked Finance Account you will be responsible for their activity. Any breach of security, loss, theft or unauthorised use of a display name, email address, password or security information must be notified to us immediately using the contact details at Section 13 of this Agreement.
- You agree not to adapt or circumvent the systems in place in connection with Linked Finance, nor access Linked Finance other than through normal use.
- We reserve the right not to act on your instructions where we suspect that the person logged into your Linked Finance Account is not actually you or we suspect illegal or fraudulent activity or unauthorised use.
- You agree not to use Linked Finance in any of the following ways:
- in any way that causes, or is likely to cause, the website or access to it to be interrupted or damaged in any way;
- for fraudulent purposes, or in connection with a criminal offence;
- to send, use or reuse any material that is illegal, offensive, abusive, indecent, defamatory, obscene or menacing; or in breach of copyright, trademark, confidence, privacy or any other right; or is otherwise injurious to third parties; or objectionable; or which consists of or contains software viruses, political campaigning, commercial solicitation, chain letters, mass mailings or any “spam”;
- to cause annoyance, inconvenience or needless anxiety;
- to unreasonably disrupt the operations and activities of Linked Finance, its other users, agents or representatives in any way that negatively impacts the efficient operation of the service.
- We reserve the right to terminate or limit your use of the service for violating any of the prohibitions listed in Section 1(h).
2. Becoming a Borrower
- 2.1. To become a Borrower, the following criteria must be met:
- you must be a body corporate, co-operative society or other entity with a separate legal personality or a sole trader acting in the course of his/her trade or a partnership;
- you must not be borrowing as a consumer within the meaning of the Consumer Credit Act 1995 (the “Act”), namely you must not be:
- a natural person acting outside your business; or
- any person, or person of a class, declared to be a consumer in an order made under subsection 9 of the Act from time to time.
- if you are a sole trader, you must be a permanent resident of Ireland;
- if you are a partnership, you must have a permanent place of business in Ireland and at least 50% of your partners must be residents of Ireland;
- if you are a sole trader or partnership, your business must have been actively trading (not dormant) for at least the one year immediately preceding your application to be a Borrower;
- if you are a company, you must be registered with Companies Registration Office (the “CRO”), you must have traded for at least 2 years as a sole trader, partnership or company or any combination of these entities and filed at least one set of accounts at the CRO or equivalent in the relevant jurisdiction.
- if you are a company you must have traded for at least one year.
- you, your directors, members, partners or proprietors must meet our minimum credit and fraud risk criteria as we may determine in our sole and absolute discretion;
- you must register as a Borrower; and
- you must only follow the borrowing process specified in this Agreement.
- 2.2. Directors and/or shareholders of Borrowers who are limited companies may be required to provide guarantees and/or indemnities on behalf of the limited company before that Borrower’s Facility Request page is posted on Linked Finance.
- 2.3. Partners in Borrowers who are partnerships may be required to provide joint and several guarantees and/or indemnities on one another’s behalf before the Borrower’s Facility Request page is posted on Linked Finance.
- 2.4. Linked P2P at its sole discretion reserves the right to publish facility requests that do not meet all of the above criteria.
3. The Borrowing Process
- Once you are registered as a Borrower and you have applied to borrow through Linked Finance, we will carry out credit and fraud checks including but not limited to the searches outlined in Appendix 1 to this Agreement using information provided by you. The searches will be made against you, and/or your partners, members or directors, as the case may be, for the purposes of assigning a facility grade to any Facility Request (as defined in this Section 5). We use our own internal guidelines and policies when assessing such applications.
- In order to apply for a Facility via Linked Finance, you must complete a facility application stating, in particular, the amount you wish to borrow and the period of time for which you wish to borrow it. We may then decide in our sole and absolute discretion to allow your application to be listed on Linked Finance, in which case it will be displayed on Linked Finance and be made available to Lenders as a “Facility Request”.
- The Facility Request must be accompanied by certain Information pertaining to you and your business, including but not limited to: images, text, financial data and the facility grade associated with your Facility Request.
- This Information will be visible on the Linked Finance website and by proceeding with your facility application you agree to grant Linked P2P the right to publish the information you have provided.
- You also agree that the information can be used by Linked P2P in order to promote your facility request to its registered users and the wider public across various communication channels, including but not limited to: the Linked Finance website, email marketing, other online or digital channels of communication including social media, offline communication channels such as newspapers and other print media, radio and other audiovisual methods of communication in whatever manner Linked P2P deems necessary for the successful promotion and funding of your facility request.
- You also agree that Linked P2P can use the information for similar promotional purposes after your Facility Request has been funded and a facility contract has been agreed between you and the Lender(s).
- The Facility Contract applicable to each Facility that you enter into via Linked Finance will contain your name. We may amend the details you provide on your Facility Request page (except information identifying the Borrower) at our sole discretion.
- Once the Facility Request page is posted, the bidding competition process will start. Once the bidding process ends and the Facility Request is funded to at least 90% of the final requested value by active bids, you will have 5 working days in which to irrevocably accept those bids and agree the Facility Contract by following the electronic signature instructions on the communication from Linked P2P. You are under no obligation to enter into a Facility Contract. No interest will begin to accrue on the Facility unless and until you have signed the Facility Contract. If you fail to sign the Facility Contract within the five day signing period, your Facility Contract may, at Linked P2P’s sole discretion, be cancelled, and any bids that funded that Facility Contract may be voided. Once you sign the Facility Contract you cannot withdraw from it or cancel it for any reason. For the convenience of you and your Lenders, all your Facility Contracts will be administered as if they were one, and references to “Facility Contract” shall be taken to include each individual facility you have with each Lender, as the context requires. The Facility Contract documentation will be generated automatically to include any Facility conditions and key contract terms, which record the specific details of the Facility you agreed.
- Linked P2P (at its sole discretion), reserves the right to extend the signing period in some instances where a Borrower has provided a valid reason for requiring such an extension.
- The money due to be advanced under the Facility Contract, less the Completion Fee (described in Section 6) will be transferred from Linked Finance Customer Funds Account to your nominated bank account as soon as practicable after you sign the Facility Contract.
- If your Facility Request has not been funded to at least 90% of the requested value within the stated bidding competition period we will remove it from Linked Finance.
4. The Facility Contract
- Each Facility Contract (and each instrument assigning and/or novating any Facility Contract) comprises an electronic contract as defined in the Electronic Commerce Act 2000. As stated under s.19 (1) of the Electronic Commerce Act 2000 an electronic contract shall not be denied legal effect, validity or enforceability solely on the grounds that it is wholly or partly in electronic form. Where any document requires a signature, you (by your participation in the Facility Contract) give your consent to said signature being in electronic form as permitted by s.13(1)(b) the Electronic Commerce Act 2000.
- In all Facility Contracts we will quote each Lender’s and the Borrower’s address as being “c/o Linked P2P Limited” and state Linked P2P’s postal address. Each Lender, the Borrower and where relevant the security trustee (as detailed in paragraph (c) and Section 8.2 below) agrees that all notices and communications to be given to the Lender may be sent to and/or received via Linked P2P or each Lender’s Linked Finance Account.
- Where a Facility Contract provides that security will be provided to the Lenders participating in the relevant Facility Contract, Linked Recoveries Limited will act as security trustee for and on behalf of the Lenders participating in that Facility Contract (the “Secured Lenders”). Each of the Secured Lenders by way of participation in the Facility Contract shall be deemed to appoint Linked Recoveries Limited to act as security trustee in connection with the security to be provided by the Borrower of the relevant Facility (the “Secured Facility”). Appendix 2 (Security Trustee Terms) sets out the obligations and rights of Linked Recoveries Limited acting in its capacity as a security trustee in connection with a Secured Facility, to which each relevant Borrower and Lender shall be deemed to consent to by way of participation in a Secured Facility and the related Facility Contract.
5. Interest and Repayments
- Each Borrower’s repayments must be made to Linked Finance Lenders’ Funds Account.
- Borrowers may, subject to the terms of the Facility Contract, repay the total repayable amount outstanding of the Facility (principal plus Fixed Interest Amount plus associated fees) of this Facility at any time prior to the Final Repayment Date, without penalty.
- Compliance with applicable Irish tax law is solely the responsibility of the Borrower. Linked P2P takes no responsibility, and shall not be liable, for the deduction of any such taxes. It is the Borrowers sole responsibility to account for any taxes or other taxes that may be payable to the appropriate authorities in respect of the Borrowers activities on Linked Finance.
6. Borrower Fees
- If a Borrower wishes to apply for a facility on Linked Finance a fee (“Application Fee”) is payable to Linked P2P regardless of whether or not a Facility Contract is subsequently entered into. A list of current fees can be obtained from Linked P2P. The Application Fee may be charged (at the discretion of Linked P2P) either on the date of any facility application or on the date of any drawdown under a Facility Contract.
- We will charge a completion fee to cover the cost of facilitating the borrowing process (“Completion Fee”). We may deduct the Completion Fee from the Facility proceeds before the proceeds are disbursed to the Borrower. If the Facility proceeds are available for drawdown by the Borrower the Completion Fee is payable regardless of whether monies are actually drawn down. If the Facility proceeds are available and a Borrower fails to draw down those proceeds, the Completion Fee is payable immediately once we have determined that the relevant Borrower has failed to draw down and notified the Borrower of such failure.
- The current fees payable in the event of a missed payment from time to time are set out in Section 8. Any fee that the Collections Agency charges for this collections activity will be added to the amount outstanding under the Facility Contract and each Borrowers consents to and acknowledges the increase in the amount outstanding under the Facility Contract in such circumstances.
7. The role of Linked P2P
- Our role is to facilitate prospective Borrowers and Lenders in negotiating, concluding and completing Facilities via Linked Finance in accordance with the terms of this Agreement.
- Our participation in any Facility Contract is limited to the provisions of Section 8 (Missed Payments) and we are otherwise not a party to any Facility Contract.
- Each Lender retains complete control and discretion over whether or not to make a Facility to a Borrower and on what terms, and over all other aspects of each Lender’s participation in Linked Finance. Nothing we do and nothing on Linked Finance shall be construed, or is intended to operate or be construed, as advice or a recommendation by Linked P2P to enter into a particular transaction, or any transaction at all.
- We accept no responsibility for the accuracy of this Agreement or other provisions or terms of any Facility Contract. You should seek your own independent legal advice prior to entering into a Facility Contract or any other transaction on or in connection with Linked Finance.
8. Missed Payments
8.1. Missed payments in relation to a Facility other than a Secured Facility
- If you, as a Borrower, believe that you may not be able to make one or more repayments under a Facility Contract, you should contact us immediately.
- If you fail to make a payment or only partially pay the amount due to a Lender, we will contact you and ask you to explain why you missed the payment. We reserve the right to attempt to collect the outstanding payment. In the event that you have missed three consecutive payments as set out in the Repayment Schedule, you shall be liable for a late payment fee of €10 per day until all outstanding daily payments have been made.
- If we exercise our right to attempt to collect payment for a second time and the payment fails again or there occurs an Event of Default (as defined in the Facility Contract), all legal right, title and interest in the relevant Facility shall be assigned and/or novated to Linked Recoveries Limited in accordance with the provisions of the Facility Contract and the Borrower, each of the Lenders shall be deemed to consent to such assignment and/or novation and, in accordance with the Facility Contract, each Borrower and Lender appoints any director of Linked P2P as it’s/their attorney to execute any instrument of transfer required in connection with such assignment and/or novation.
- Linked Recoveries Limited may immediately instruct a debt collection agency (the “Collections Agency”), who will attempt to collect the amount of missed payment and/or the entire outstanding balance of the Facility. Once recovered, any amounts collected (net of any fees and expenses referred to in this Section 8) shall be transferred to Lenders pro-rata to the amount of the original facility amounts advanced to the Borrower under the Facility Contract.
- We will keep the Lenders up to date via email notifications regarding the progress of any efforts to collect your missed payments once a Collections Agency is involved and/or any Facility Contracts have been assigned to Linked Recoveries Limited.
- The Collections Agency may engage field agents to attempt to collect the total Facility amount outstanding. In addition we may file notice of the default on your credit reference file with one or more credit reference agencies.
- The Collections Agency may charge administration for their work in collecting amounts outstanding which will be payable by the Borrower in addition to the facility sums due. They may also charge other fees to cover tracing charges, field agents’ costs and litigation costs and expenses. The Borrower by participation in the Facility Contract, agrees and consents to such Collection Fees and acknowledges that the amount of any Facility shall be increased by an amount equal to those fees.
- The remaining proceeds will be paid to the Lenders, pro-rata to the amounts loaned by them to the Borrower.
- If the Collections Agency is unable to collect a Borrower’s debt Linked Recoveries Limited may seek to gain a judgement against the defaulting borrower via the courts.
- The Borrower by participation in the Facility Contract, agrees to indemnify Linked P2P and Linked Recoveries (together the “Indemnified Parties” and each an “Indemnified Party”) against, and each of the Borrower and the Lenders agree hold the Indemnified Parties harmless from, any loss, cost, expense, claims or demands arising from any attempt by the Indemnified Parties to recover the amounts outstanding under the Facility Contract.
8.2. Missed payments in relation to a Secured Facility
- If you, as a Borrower, believe that you may not be able to make one or more repayments under a Facility Contract for a Secured Facility, you should contact us immediately.
- If you fail to make a payment or only partially pay the amount due to a Lender, we will contact you and ask you to explain why you missed the payment. We reserve the right to attempt to collect the outstanding payment in respect of that Facility Contract for a Secured Facility a second time within 33 days of the first missed or partial payment. We will charge a missed payment fee of up to €40.
- If we exercise our right to attempt to collect payment for a second time and the payment fails again or there occurs an Event of Default (as defined in the Facility Contract for the Secured Facility), Linked Recoveries Limited in its capacity as Security Trustee and upon receipt of instruction from Linked P2P (pursuant to any Secured Facility) will proceed in accordance with: (i) the terms of this Agreement, to include Appendix 2 (Security Trustee Terms); and (ii) the security provided by you in connection with the Secured Facility. Each Lender who participates in a Facility Contract relating to a Secured Facility is deemed to: (i) consent to Linked P2P instructing the Security Trustee in accordance with the terms of this paragraph (c) and (ii) appoint any director of Linked P2P as its/their attorney to instruct the Security Trustee in relation to any demand or enforcement action to be taken in connection with a Secured Facility and the Facility Contract and security provided in connection with it.
9. Terminating membership of Linked Finance
- If you have no Facility Contracts currently in force, you may terminate your membership of Linked Finance in writing via e-mail to firstname.lastname@example.org.
- We may terminate or suspend your membership of Linked Finance or seek any other appropriate remedy (including but not limited to damages) at any time and for any reason, including but not limited to:
- breach of the any provisions of this Agreement;
- breach of any Facility Contract to which you are a party;
- we suspect that you have committed fraud, been involved in money laundering or other criminal activities; or
- you have no Facility Contracts in force and there has been no activity on your Linked Finance Account within the immediately preceding 12 month period.
- We may cease to offer certain features or functionality within Linked Finance, or cease to operate Linked Finance, in our sole and absolute discretion, in which case your membership will terminate subject to the orderly administration of your outstanding Facility Contracts by the Back-up Servicer in accordance with Section 11.
- Termination of your membership of Linked Finance will not result in a termination of any Facility Contract to which you are a party at that time, and will not affect your repayment obligations as a Borrower.
10. Limitation of Liability
As a Borrower, you agree and acknowledge that:
- We are not obliged to procure funding for you, and we do not warrant, represent or guarantee that funding will be available, either via Linked Finance or at all.
- We do not warrant, represent or guarantee that the interest rates advertised by us, either on or off Linked Finance, will be available to you.
- If any personal guarantee is provided in respect of your obligations, you represent and warrant that there has been no undue influence or inducement of the guarantor.
- We will endeavour to make Linked Finance available 24 hours per day, but we will have no liability to you in the event that access is suspended or restricted at any time.
- We shall not be liable to you for any loss or damage which you may suffer as a result of being a member of, or using, Linked Finance, except where such loss or damage arises directly from our breach of this Agreement, our gross negligence, wilful misconduct or fraud by us.
- We shall not be liable for:
- any indirect, special or consequential loss or damage, including loss or damage arising out of or in connection with lost data, lost profits, damage to goodwill or business interruption; or
- any delay or failure to perform its own obligations under these principles due to circumstances beyond our own reasonable control.
- Our total liability to you in connection with this Agreement and your use of Linked Finance on any basis whatsoever shall not exceed the total amount of revenue earned by us in respect of transactions entered into by you via Linked Finance.
- Nothing in these terms and conditions shall limit our liability for personal injury or death, fraud, nor for any other liability the exclusion or limitation of which is not permitted by applicable law or regulation.
11. Back-up Servicer arrangements
We have appointed an independent third party to ensure the orderly administration of outstanding Facility Contracts in the event that we cease to operate for any reason (the “Back-up Servicer”). If this happens:
- all outstanding Facility Contracts and any related security will remain in full force and effect and the Back-up Servicer will continue to enforce the Borrowers’ obligations to make repayments in accordance with their Facility Contracts;
- Linked Finance will not be available for access by you, and all lending, borrowing via Linked Finance will cease; and
- funds received from Borrowers, or due to Lenders that occurred prior to cessation of operations, will be disbursed by the Back-up Servicer to each relevant Lender’s Nominated Bank Account, once the total amount due to each Lender exceeds €100, or otherwise on a quarterly basis.
12. Content Ownership and Licences
- You are solely responsible for the data which you supply to us or upload to Linked Finance (“Membership Data”). You may not post, transmit, or share Member Data on Linked Finance that you have not created or that you do not have permission to post. You agree that we may, but we are not obliged to, delete or remove (without notice) any content, appearing on Linked Finance including Member Data, in our sole and absolute discretion, for any reason or no reason. You are solely responsible at your sole cost and expense for creating backup copies and replacing your Member Data.
- When you post Member Data to Linked Finance, you authorise and direct us to make such copies thereof as we deem necessary in order to facilitate the posting and storage of the Member Data on Linked Finance. By posting Member Data to any part of Linked Finance, you automatically grant, and you represent and warrant that you have the right to grant to us an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicence) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such Member Data for any purpose on or in connection with Linked Finance or the promotion thereof, to prepare derivative works of, or incorporate into other works, such Member Data, and to grant and authorise sublicences of the foregoing. If you choose to remove your Member Data, you acknowledge that we may retain archived copies of your Member Data.
- You agree to indemnify and hold us, our subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable legal fees, arising out of or in connection with any Member Data that you post or share on or through Linked Finance, your use of Linked Finance, your conduct in connection with Linked Finance or with other users of Linked Finance, or any violation of the provisions of this Agreement, or of any applicable law, regulation or the rights of any third party.
- Provided that you are eligible for use of Linked Finance, you grant (in respect of your Member Data), and are granted (in respect of other Members’ Data), a limited license to access and use Member Data and to download or print a copy of any portion of the Member Data to which you have properly gained access solely for your personal, non-commercial use, provided that you keep all copyright or other proprietary notices intact. Except for your own Member Data, you may not upload or republish Member Data or incorporate the information in any other database or compilation, and any other use of the Member Data is strictly prohibited. Such license is subject to this Agreement and does not include use of any data mining, robots or similar data gathering or extraction methods. Any use of the Member Data other than as specifically authorised herein, without our prior written permission and that of the Member who owns the Member Data, is strictly prohibited and will terminate the license granted herein. Such unauthorised use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in this Agreement shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time without notice and with or without cause.
- You warrant that you have taken all reasonable precautions to ensure that your Member Data is free from viruses and anything else which may have a contaminating or destructive effect on any part of Linked Finance, its other users or the data stored in or accessed from it.
- While we take reasonable precautions to prevent the existence of computer viruses or other malicious programs on Linked Finance, we accept no liability for them if they do exist. It is your responsibility to use, update and maintain appropriate antivirus software on any device you use to access Linked Finance.
- Information transmitted via Linked Finance will pass over public telecommunications networks. We accept no liability if such communications are intercepted by third parties or incorrectly delivered or not delivered.
- Linked Finance may contain links to other websites. We accept no responsibility or liability for any material supplied by or contained on any such third party website, or any use of personal data by the operator or other users of such websites.
- All present and future copyright, registered and unregistered trade marks, design rights, unregistered designs, database rights and all other present and future intellectual property rights and rights in the nature of intellectual property rights existing in or in relation to the Linked Finance Data and Linked Finance shall vest and remain vested in us. If and to the extent that any such intellectual property rights vest in you by operation of law or otherwise, you agree to do any and all such acts and execute any and all such documents as we may reasonably request in order to assign such intellectual property rights to us.
- We do not warrant or represent that the content of Linked Finance, including the Member Data and the Linked Finance Data, does not infringe the rights of any third party.
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 Facility 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 Facility Contract to which that Borrower is a party and in connection with a Secured Facility.
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 Facility 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 Facility Contract for a Secured Facility.
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 Facility 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 Facility 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 Facility 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.
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 February 2022.
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 Facility 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 Facility 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 Facility Contract submit for the resolution of any such matter or dispute to the exclusive jurisdiction of the Courts of Ireland.