General Loan Terms
1.1. These general loan terms ("Loan Terms") apply to each loan granted via LendSecured (hereinafter referred to as the “Portal”) and form, with the special loan terms agreed in respect of the relevant loan, an integral loan contract in respect of that loan.
1.2. In addition to the loan contract, the relations between a lender and a borrower, including the procedure, manner and scope of performance of certain rights and obligations under a loan contract, are regulated by Terms and conditions ("User Terms") of the Portal, which in the relevant respects are deemed as part of each loan contract and the adherence to which by each other can be demanded by the borrower and lender in their relations (Loan Terms including special loan terms and User Terms hereinafter referred to as the “the Agreement”)
1.3. By entering into a loan contract in accordance with the procedure provided for in the User Terms, the lender undertakes to grant a sum of money to the borrower by way of a loan, and the borrower undertakes to repay that sum of money to the lender. The currency and amount of the relevant sum, its manner of repayment and other matters referred to in these Loan Terms are specified in the special loan terms of the relevant loan.
2. Transfer of the loan
2.1. Transfer of the loan amount shall be carried out through Lemon Way, legal entity code: 500 486 915, address: 8, rue du Sentier 75002 Paris, France, approved as a payment institution by the French Prudential Supervisory and Resolution Authority (ACPR) (hereinafter referred to as the “Lemon Way”) escrow account opened at Bank BNP Paribas, by the request of Secured Finance MGMT Ltd (registration number 50103266451 address: Riga, Bukultu street 11, LV-1005) (hereinafter referred to as the “Portal operator”), on behalf of the Lender to the Borrower's bank account (in line with provisions for executing payments as envisaged further in Section 4 below), after all related loan agreements for lending the total sum (funding target) set out in special loan provisions to the Borrower have been concluded with the Borrower through the Portal for the purposes indicated in Section 5.1.1, by the date set out in special loan provisions (or by the end of the term extended, according to the procedure set out in Section 7.1). The Loan Amount shall be considered as disbursed when it is fully paid to the account of the Borrower.
2.2. The Loan Amount shall be paid out to the Borrower (in line with Section 5.1.1.) after entering into the Agreement provided that all the following conditions have been satisfied:
2.2.1. “Collateral agent” “Collateral”;
2.2.2. within the project in relation to which the loan is being granted, loan contracts are entered into in an aggregate principal amount of at least the funding target specified by the borrower in the loan request made within that project;
2.2.3. none of the circumstances described in Section 8.4 have occurred (or the relevant event or circumstance would occur as a result of the transfer of the loan amount).
2.3. In cases, in the scope and by the procedure provided for in the User Terms, the fees and other costs payable or reimbursable by the Borrower shall be paid from the Loan Amount, in which case the loan amount is transferred to the Borrower only in an amount it exceeds the relevant fees and costs.
3. Repayment of the loan and interest
3.1. The Borrower shall repay the Loan Amount to the Lender according to the schedule set out in Annex 1 to the Agreement on the Parallel Obligation and/or the schedule published on the Borrower's User Account (including on the dates and amounts set out in the schedule). The payments shall be made according to the procedure established in Section 4.
3.2. The Borrower shall pay to the Lender the interest at the rate established in the special loan provisions, which shall be calculated from the outstanding balance of the Loan Amount principal for each day up until the last day of the Loan Period (excluded). Interest is calculated for each specific day of the year.
3.3. If the payment date falls on a day of or a Bank holiday in Latvia, the Borrower shall make the respective payment on the next working day following the payment date.
3.4. If stipulated by the legal acts, the Borrower or the Collateral Agent shall withhold the amounts established by such legal acts (including income tax) from the payments made to the Lender.
4.1. Lender’s and Borrower’s (hereinafter together referred to as the “Parties”, while each separately – the “Party”) payments noted in the Agreement and to be made under the Agreement shall be made through the Lender’s and Borrower’s virtual user accounts (further referred to as the “User Account”) created in the Portal and operated by the Portal Operator under the User terms and according to the procedure established in the Portal’s User terms as long as both Parties remain the Portal’s registered users. In order to make the contractual payments (including Loan Amount, repayments of the Loan Amount, interest, default interest, contractual penalty, compensation for early repayment of the loan), the Parties shall give the Portal Operator and/or Lemon Way an irrevocable order to debit the agreed sum from the User Account of the Party obliged to make the payment in the amount and at the time set forth in the Agreement, and to credit the same amount to the User Account of the Party entitled to receive the payment. A payment shall be considered as completed when credited to the User Account of the Party entitled to receive the payment.
4.2. Unless stated differently in the Agreement, the Lender and the Borrower shall be obliged to ensure that a sufficient non-booked sum reflected as a positive balance would be available at their User Account for making contractual payments at the time and in the amount set forth in the Agreement.
4.3. If the Borrower’s User Account lacks sufficient funds for making payments necessary for performing obligations that have become collectible (including payments to be made to other creditors of the Borrower and Collateral Agent), the payments shall be made in the order that they have become collectible, starting from the obligation that has become collectible the earliest. If the Borrower’s User Account lacks sufficient funds for making payments necessary for fulfilling several obligations that have become simultaneously collectible (including payments payable to Borrower’s other creditors and the Collateral Agent), the payments made for covering the obligations that have become simultaneously collectible shall be made proportionally to the obligation’s amount.
5. Obligations of the borrower
5.1. The Borrower shall be obliged to:
5.1.1. use the Loan Amount only to acquire, operate, and maintain the Project and pledge according to the information announced to the Lender through the Portal before the conclusion of the Agreement;
5.1.2. immediately perform any and all activities required by the Collateral Agent in order to establish the Collateral referred to in Section 2.3.1, and pay other expenses related to conclusion of the Agreement for establishing the Collateral and establishing the Collateral (including notary fees and state fees) directly to the notary, Land Register or other persons entitled to receive the said fees within the foreseen period, unless otherwise agreed in the Agreement;
5.1.3. refrain from transactions and activities that may significantly decrease the value of the pledge or that may significantly hinder the realization of the Collateral in any other manner;
5.1.4. not to make profit distributions to the Borrower’s shareholders during the validity of the Agreement until the contractual obligations have been fulfilled; ensure that no decision is made to decrease the Borrower’s share capital, nor to terminate the Borrower;
5.1.5. regularly publish (at least twice a year) general information regarding the Company (including basic information about the commercial activity of the Company, as well as financial reports and data) through the Lender’s user account opened in the Portal, or via e-mail;
5.1.6. inform the Lender at least within three business days of any events occurred that may influence the fulfillment of the Agreement’s terms and conditions by the Borrower, and/or may result in violation of any of the obligations set forth in the Agreement;
5.1.7. ensure that the agreements and rights needed for the fulfillment of the obligations of the Borrower stipulated in the Agreement are existent, inter alia for the submission of the data stipulated in the Agreement to the Lender and the Collateral Agent;
5.1.8. pay success fee to the Portal operator and/or Collateral agent, in accordance with the agreements concluded between the parties.
5.2. The Borrower hereby confirms that:
5.2.1. the information disclosed to the Lender on the Borrower and the pledge through the Portal before the conclusion of the Agreement is correct;
5.2.2. in its activities, the Borrower has duly fulfilled and followed the legal provisions and good business practices applicable to the Borrower, is continuing and will continue to do so in the future, including ensuring that the Borrower and its sub-contractors have any and all necessary permits and approvals required for their activities;
5.2.3. the Borrower’s obligations arising from this Agreement are ranked equally to any and all other obligations of the Borrower due at the time of the conclusion of the Agreement and after that to any persons, unless another obligation’s preferential treatment arises from legal acts;
5.2.4. the Borrower is aware that it has no rights to issue the Collateral Agent instructions in relation to the fulfillment of its duties or submit any claims against the Collateral Agent;
5.2.5. the Borrower has the right to conclude the Agreement and establish the Collateral; taking the loan, establishing the Collateral and fulfilling the Agreement are not in conflict with any legal act, administrative act or transaction, and taking of the loan does not damage the Borrower’s creditors’ interests;
5.2.6. the Borrower is not insolvent or declared bankrupt; no bankruptcy petition, warning, action or any other claim that could result in the Borrower’s insolvency has been submitted against the Borrower, and there are no other circumstances that may result in the Borrower’s insolvency or that could hinder the Borrower’s capability to duly fulfill its contractual obligations;
5.2.7. the Borrower has reviewed any and all terms and conditions of this Agreement before the conclusion of this Agreement, understood them and undertakes the obligation to fulfill them.
6. Obligations of the lender
6.1. The Lender hereby confirms that:
6.1.1. the Lender is aware of the fact that the Collateral Agent may be a person related to the Portal Operator or its shareholders (including belonging to the same group) and the Borrower shall remunerate the Portal Operator and/or Collateral Agent for their services in relation to the Agreement, and the Lender shall irrevocably surrender submission of any claims against the Portal Operator or Collateral Agent in relation to the circumstance set out in this Section (including claims arising from potential conflict of interests);
6.1.2. the Lender is aware of the fact that the Collateral Agent has only the obligations and liability explicitly set out in the Agreement and agreement for establishing the Collateral, the Collateral Agent operates in the interests of all lenders who have granted a loan to the Borrower through the Portal for the purposes set out in Section 5.1.1 (not solely in the interests of the Lender) and the Lender shall have no right to give the Collateral Agent instructions in relation to fulfillment of its obligations;
6.1.3. the Lender has the right to conclude the Agreement; granting the loan and fulfillment of Agreement is not in contradiction with any legal act, administrative act or transaction, and granting of the loan does not damage the Lender’s creditors’ interests;
6.1.4. the Lender is not insolvent or declared bankrupt; no bankruptcy petition, warning or any other claim that could result in Lender’s insolvency has been submitted against the Lender, and there are no other circumstances that may result in Lender’s insolvency;
6.1.5. The Lender is informed about the administration fee for the use of the Portal and undertakes to pay it to the Portal operator according to the User Terms;
6.1.6. the Lender has reviewed all terms and conditions of the Agreement before concluding the Agreement and has understood them and undertakes to comply with them.
6.2. Upon the conclusion of the Agreement the Lender shall be obliged to notify the Borrower and Portal operator of:
6.2.1. any events that influence Lender’s compliance with the terms and conditions of the Agreement;
6.2.2. any circumstance that deteriorates or may deteriorate Lender’s economic situation.
7.1. The Borrower shall have the right to withdraw from the Agreement without advance notice within 14 (fourteen) days from the last date of loan offers, if the Borrower has not received loans in the amount of funding target through the Portal. The Borrower shall have the right to extend the last day of loan offers by one month, with the consent of the Portal Operator, and if the Borrower has not received loans in the minimum amount of funding target by the end of the additional term, the Borrower shall have the right to withdraw from the Agreement according to the procedure described in the previous sentence.
7.2. The Collateral Agent is entitled to withdraw from the Agreement without prior notice if the conditions set out in Section 2.3 have not occurred within one month from the initial date of the last date of loan offers (i.e. not calculated from the term extended according to the procedure set out in Section 7.1).
7.3. If one of the Parties withdraws from the Agreement, the Agreement shall expire between all Parties. Each Party shall notify other Parties and Portal Operator of the withdrawal from the Agreement. In the event of withdrawal from the Agreement, the Borrower shall repay the Loan Amount without interest to the Lender within 10 business days.
8. Termination of the agreement and prepayment of the loan
8.1. The Borrower shall have the right to prematurely terminate this Agreement at any time by notifying Platform operator at least two weeks in advance and within 10 business days after the expiry of the Agreement paying back the outstanding Loan Amount, compensation of early repayment and expenses related to the removal of the pledge, if provided in the Agreement.
8.2. The Agreement shall not terminate if the Borrower fails to completely fulfill the payment obligation set out in Section 8.1 of the Agreement in due time.
8.3. Upon termination of the Agreement by the Borrower for any purposes other than those set out in Section 8.1, the Borrower shall pay to the Lender within 10 business days after the expiry of the Agreement the outstanding Loan Amount and outstanding interest as calculated according to the procedure set out in Section 3.2 up until the last day of validity of the Agreement (excluded).
8.4. Collateral Agent shall have the right to terminate the Agreement only if at least one of the following circumstances occurs, by notifying the Borrower at least 10 (ten) business days in advance (other grounds for cancellation are excluded):
8.4.1. the Borrower violates a payment obligation arising from the Agreement and fails to fulfill the obligation duly even within 20 business days from receiving Collateral Agent’s respective request;
8.4.2. the Borrower is liquidated on the basis of a court ruling, dissolution resolution or on any other grounds;
8.4.3. the court declares the Borrower’s bankruptcy or insolvency and the court ruling has entered into force;
8.4.4. the Borrower violates any of the obligations set out in Section 5.1 of the Agreement and has not terminated or remedied the violation even within 20 business days from receiving the Lender’s or Collateral Agent’s respective request to terminate the violation;
8.4.5. any of the Borrower’s confirmations set out in Section 5.2 proves to be substantially incorrect, i.e. if the Lender had the correct information before the conclusion of the Agreement, the Lender would not have concluded the Agreement;
8.4.6. a claim for recovery of debt and/or losses has been submitted to the court against the Borrower and/or pledgor, or a decision of the relevant institution has been made regarding the seizure of the Borrower's and/or pledgor's funds and property, or any means of securing the claim is applied in Civil or Criminal Proceedings;
8.4.7. as a result of abusive or negligent actions of the Borrower and/or the pledgor, the market value of the Collateral has decreased or the Collateral has been completely or partially destroyed.
9. Collateral agent
9.1. The Collateral Agent shall hold the Collateral on its own name on behalf of all lenders who have granted loan to the Borrower via the Portal for the purposes set out in Section 5.1.1; and shall perform activities and transactions related to the Collateral within the scope set out in this Agreement.
9.2. The Collateral Agent shall have an immediate recourse to the Collateral when the Borrower has failed to properly fulfill its monetary obligations under any of the loan agreements and the grace period granted under any of those relevant agreements has passed. The Collateral Agent shall use its best purposeable efforts to collect from the Collateral on an expedite and efficient basis, and the actual monetary collections shall be properly and equally distributed to the relevant lenders.
9.3. The Borrower undertakes to pay to the Collateral Agent an amount (such obligation of the Borrower to the Collateral agent hereinafter referred to as the “parallel obligation”) equal to and in the currency of each other monetary obligation of the Borrower arising from any loan document related to the relevant loan (such other monetary obligation hereinafter referred to as the “base obligation”).
9.4. The parallel obligation falls due and must be performed to the Collateral Agent at the same time and in the same currency when and in which the corresponding base obligation falls due and must be performed.
9.5. The amount of the parallel obligation decreases from time to time in the extent by which the base obligation that corresponds to that parallel obligation is duly performed to the creditor for the time being of that base obligation (with such base obligation not being deemed to have been performed for such purposes until such creditor has irreversibly received the relevant amount in full), and the amount of the relevant base obligation decreases from time to time in the extent by which the parallel obligation that corresponds to that base obligation is duly performed to the Collateral Agent or to a person appointed by the Collateral Agent (with such parallel obligation not being deemed to have been performed for such purposes until the Collateral Agent or the person appointed by the Collateral Agent has irreversibly received the relevant amount in full).
9.6. The Collateral Agent may demand the performance of the parallel obligation pursuant to the loan contract from the borrower independently on its own behalf and the borrower must perform the relevant obligation to the Collateral Agent or the person appointed by the Collateral Agent.
9.7. The Collateral Agent has a right in the name of the Lender to assign the claim rights arising from the Agreement to any third party. In doing so, the said third party pays the Lender the outstanding Loan Amount and outstanding interest as calculated according to the procedure set out in Section 3.2.
10.1. The Borrower is obliged to pay to the Collateral Agent, at the request of the Collateral Agent, the contractual penalties and default interest stipulated in the Agreement on the Parallel Obligation for the breach of the Agreement.
10.2. Payment of the contractual penalty shall not release the Borrower from the obligation to duly fulfilling the contractual obligations under the Agreement, shall not cease or limit the Lender’s right to request compensation of damages caused by inappropriate fulfillment of obligations in the amount that exceeds the contractual penalty or exclude cancellation of the Agreement according to Section 8.4.
10.3. The Borrower, Collateral Agent and the Lender shall be obliged to compensate to each other only damages that are caused by failure to perform or inappropriate fulfillment of obligations due to gross negligence or intent. The liability of the Borrower and the Lender is limited to direct material damage.
11.1. The Agreement and information concerning its contents and fulfillment, as well as information exchanged between the Parties on the basis of the Agreement shall be considered confidential and not subject to disclosure to third parties. A Party shall be obliged to keep the other Party’s business secrets. The confidentiality requirement shall not be applicable to disclosure of information to the Portal Operator, the Parties’ auditors, professional legal counselors, credit and financing institutions as well as to disclosure of information to the Borrower’s parent company or Shareholders.
11.2. The Lender hereby consents processing of the personal data disclosed to the Borrower and Collateral Agent before the conclusion of the Agreement and during the validity of the Agreement in relation to execution of this Agreement and agreements referred to therein. The Collateral Agent and the Borrower have the right to request separately that the Lender present immediately any data for identification or allowing fulfillment of the Collateral Agent’s or Borrower’s obligations. The Lender shall have the right to request at any time that the Borrower or Collateral Agent present to the Lender the personal data that they hold on the Lender.
11.3. The Lender hereby authorizes the Portal Operator to notify the Collateral Agent, upon a request by the latter, the data on the persons who have contractual claims against the Borrower (including the name and contact data of the respective person, basis for and amount of the claim).
11.4. The Agreement is governed by the legislation of the Republic of Latvia. If any Agreement section contradicts with a legal act, it shall not influence the validity of other sections in the Agreement. The parties undertake a mutual agreement to replace an invalid section with a new legal section, which, when in conformity with the law, would be the most similar to the invalid section in its meaning, regulation and influence, in order to ensure maximum fulfillment of the economic interests and main goals of the parties.
11.5. The parties shall settle the disagreements and disputes arising from the fulfillment of the Agreement first and foremost by negotiations. If settling disagreements by negotiations is impossible, a dispute shall be settled in general court of the Republic of Latvia. If the plaintiff is a legal entity or a private person operating in their economic or professional activities, or whose place of business, residence or location is not known at the time of filing the action, the
Court of the Republic of Latvia shall be the competent authority to settle the disputes.
11.6. Amendments and supplementations to the Agreement shall enter into force from the moment they are confirmed by the parties in a format that can be reproduced in writing.
11.7. Notices related to the Agreement shall be made in English at least in a format that can be reproduced in writing and shall be sent:
11.7.1. through the Portal; or
11.7.2. by e-mail to the address indicated in the Agreement or to the e-mail address notified by a party to the other party later; or
11.7.3. delivered against signature or sent by registered mail to the other party’s address.
11.8. A party shall inform the other parties of the change in their contact data no later than within 3 working days. If the parties are registered users in the Portal, changing of the respective data in the Portal shall be considered as sufficient informing of the change in the contact data, and the Portal Operator shall have the right to disclose the contact data of a party to the other parties.
11.9. The Agreement shall enter into force between the Borrower and Lender at the moment of confirmation of the Agreement by all parties according to the procedure established by the Portal Operator. The Collateral Agent shall confirm the Agreement according to the procedure established by the Portal Operator after the Borrower and Lender have confirmed the Agreement, and the Agreement enters into force for the Collateral Agent from the moment it is confirmed by the Collateral Agent. The Agreement shall expire after the Borrower has performed any and all obligations undertaken with the Agreement to the Lender and the Collateral Agent, or upon premature cancellation of the Agreement.
11.10. This Agreement is concluded in English and signed by the parties according to the procedure established by the Portal Operator.