Standard Terms and Conditions
This Agreement represents one or more Loan Contract between each Lender and the Borrower. Each party agrees to be bound by the terms and conditions of this Agreement.
1. DEFINITIONS AND INTERPRETATION
The following definitions apply in this Agreement.
Accountants Certificate: a letter of assurance or other letter acceptable to the Representative certifying that the Borrower qualifies for a Claim
Accounts Receivable: all present and future book and other debts, and monetary claims due or owing to the Borrower, and the benefit of all security, guarantees and other rights of any nature enjoyed or held by the Borrower in relation to any of them.
Agreement: means the Facility Agreement incorporating the Commercial Terms and these Standard Terms and Conditions together with and any schedules to the Facility Agreement, as the same may be varied, added to or replaced from time to time.
Authorisation: any approval, authorisation, consent, planning consent or approval, exemption, filing, licence, notarisation, notification, permit, registration or resolution.
Availability Period: the period from and including the date of this Agreement to and including the drawdown date specified in the Commercial Terms (or such later date as may be agreed between the Borrower and the Representative in writing).
Borrowed Money: any indebtedness the Borrower owes as a result of borrowing or raising money (with or without security), including any premium and any capitalised interest on that money and any other transaction that has the commercial effect of borrowing (including, without limitation, sale of any receivables or other financial asset, discounting, rental, finance lease, hire purchase, deferred payment (other than normal trade credit) any forward sale or purchase agreement, issuing of commercial paper and any liabilities which are not shown as borrowed money on the Borrower's balance sheet because they are contingent or conditional, any derivative transaction and any guarantee, counter-indemnity or other assurances against financial loss that the Borrower has given for any such purpose).
When calculating Borrowed Money, no liability shall be taken into account more than once.
Borrower: the party contracting to use the Facility, as stated in the Commercial Terms and above.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Change of Control: means any person, or any group of persons acting in concert which gains control of the Borrower. For this purpose, control means:
(a) beneficial ownership of more than 50 per cent of the issued share capital of the Borrower;
(b) power to control the casting of more than 50 per cent of the votes capable of being cast at a general meeting of the Borrower;
(c) power to appoint or remove all or the majority of the Borrower’s directors; and/or
(d) give directions with respect to the operating, corporate and financial policies of the Borrower with which the directors or other equivalent officers of the Borrower are obliged to comply.
Claim: the grant claim by the Borrower from the Grant Body, details of which are set out in the Commercial Terms.
Commercial Terms: the section headed Commercial Terms in this Agreement.
Controlled Account: any bank account operated or controlled by the Representative and notified to the Borrower by the Representative into which all sums due from the Grant Body regarding the Claim are to be paid and/or payments in respect of the Accounts Receivable are to be paid and/or all Loan repayment and/or prepayments are to be made.
Data Protection Laws means any applicable laws and regulations relating to the processing, privacy, and use of Personal Data, as applicable to the Borrower, the Lenders, the Representative and/or the Security Trustee and/or the services provided pursuant to this Agreement, including: the Data Protection Act 1998, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) and any laws or regulations implementing Council Directive 2002/58/EC; the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (GDPR), applicable as of 25 May 2018 and repealing Directive 95/46/ECGDPR and/or any corresponding or equivalent national laws or regulations; and any judicial or administrative interpretation of any of the above, and any guidance, guidelines, codes of practice, approved codes of conduct or approved certification mechanisms issued by any relevant lawful data protection regulatory authority.
Default Rate: the default interest rate that is 4 percentage points higher than the interest rate set out in the Commercial Terms.
Discounted Security: all the Borrower’s Accounts Receivable, work in progress, stock and Retentions, discounted at the rates notified by the Representative pursuant to this Agreement.
Event of Default: any event or circumstance listed in clause 13.
Facility: the term loan facility made available under this Agreement comprising the Loan or a series of Loans.
Facility Agreement: means the part of this Agreement identified as such and including the details of the parties, the Commercial Terms, the signature section and any schedules.
(a) sections 1471 to 1474 of the US Internal Revenue Code of 1986 or any associated regulations;
(b) any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or
(c) any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
FATCA Deduction: a deduction or withholding from a payment under a Finance Document required by FATCA.
Finance Documents: this Agreement, any Security Document and any other document designated as such by the Representative.
Finance Parties: each Lender, the Representative and the Security Trustee, and Finance Party shall mean any one of them.
Grant Body: the legal entity responsible for awarding the Claim.
Indebtedness: any obligation to pay or repay money, present or future, whether actual or contingent, sole or joint, including any Borrowed Money.
GAAP: generally accepted accounting principles in the United Kingdom.
Increased Costs: means any reduction in the rate of return from the Facility or on the overall capital of any Lender (or of any of its affiliates), any additional or increased cost and any reduction of any amount due and payable under any Finance Document which, in any case, is incurred or suffered by any Lender (or any of its affiliates) but:
(a) only to the extent that it is attributable to such Lender having entered into any Finance Document; and
(b) not to the extent that it is expressly compensated for by any other provision of this Agreement (or which would have been so compensated but for an exclusion applying), or attributable to a Tax Deduction required to be made by law, or attributable to a FATCA Deduction, or attributable to any wilful breach of law by such Lender (or any of its affiliates).
Lender: means (i) a party lending money to the Borrower via the Representative’s platform as listed in the Schedule 1 of the Facility Agreement and (ii) each party who subsequently becomes a ‘Lender’ in accordance with the terms of this Agreement and the Terms of Service and notified (or made available) to the Borrower from time to time.
Loan: the principal amount of each bilateral loan and any further advance made or to be made by a Lender to the Borrower under a Loan Contract or (as the context requires) the principal amount outstanding for the time being of that bilateral loan.
Loan Amount: the amount set opposite a Lender’s name in Schedule 1 of the Facility Agreement and/or notified to the Borrower once the project has completed funding.
Loan Contract: the bilateral agreement between a Lender and the Borrower, the terms of which are reflected in this Agreement, under which the Lender agrees to make available a Loan in an amount equal to the Loan Amount.
Material Adverse Effect: any event or circumstance (or combination thereof) the effect of which in the Representative’s opinion would or would be reasonably likely to:
(a) materially impair the ability of the Borrower to perform or comply with any of its payment or material obligations under the Finance Documents;
(b) materially impair the validity or enforceability of any rights or remedies of any Lender under the Finance Documents; or
(c) result in a material adverse change in the financial condition, operation, assets or business of the Borrower.
Open Banking: a system through which banks open up their application programming interfaces (API) to give secure access to banking transactional data to third parties.
Personal Data means any information relating to an identifiable natural person being one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to his/her physical, physiological, mental, economic, cultural or social identity, or as otherwise defined under applicable Data Protection Laws.
Personal Data Processing Obligations means the data protection obligations and details as set out in clause 24, as the same varied on notice from time to time.
Potential Event of Default: any event or circumstance specified in clause 13 which would (with the expiry of a grace period, the giving of notice, the making of any determination under this Agreement or any combination thereof) be an Event of Default.
Property: the property or properties specified in the Commercial Terms and any other properties, the leases or licences of which are designated Relevant Agreements for the purposes of this Agreement.
Purpose: the purpose for which the Facility is made available, as may be set out in more detail in the Commercial Terms.
Relevant Agreements: leases of the Property (where the Borrower and/or any guarantor is acting as lessor or landlord), licence, agreements, service agreements, retainers, support agreements and each other agreement designed as a Relevant Agreement by the Borrower and the Representative in writing or specified in the Commercial Terms.
Relevant Revenue: the aggregate of all revenue payable or to be payable or otherwise arising during the term of each Relevant Agreement.
Representative: the company named as such in the Facility Agreement (or that may subsequently replace it from time to time) as the representative acting on behalf of each Lender.
Retention: any amount certified as due to the Borrower on an interim certificate that has been retained by its client pending completion of the contract or applicable condition.
Secured Assets: all and any assets secured by any Security Document.
Security: any mortgage, charge (whether fixed or floating, legal or equitable), pledge, lien, assignment by way of security, guarantee, warranty or indemnity or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
Security Document: any document granting Security.
Security Trustee: the company named as such in the Facility Agreement (or that may subsequently replace them from time to time) as the holder of the Security on behalf of each Lender.
Sterling and £: the lawful currency of the UK.
Tax: any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).
Tax Deduction: any withholding on account of Tax from any payment due to a Lender under this Agreement (other than a FATCA Deduction).
Terms of Service: means the terms and conditions for the provision of services through the Representative’s platform, from time to time.
Total Facility Amount: the maximum principal amount of the Facility (being the aggregate amount of the Loans) referred to in the Commercial Terms.
Value to Loan: means at any time during the term of the Loans:
(a) the value of any Accounts Receivable, work in progress, stock and Retentions of the Borrower, discounted at the rates notified by the Representative under or pursuant to this Agreement, divided by
(b) the Loan Amounts then outstanding.
VAT: value added tax as provided for in the Value Added Tax Act 1994 and any other tax of a similar fiscal nature.
In this Agreement:
(a) indebtedness includes any obligation for the payment or repayment of money, whatever the nature or basis of the relevant obligation (and whether present or future, actual or contingent);
(b) "indemnify" and "indemnifying" any person against any circumstance includes indemnifying and keeping them harmless from all claims, demands, actions and proceedings from time to time made against him and all loss or damage and all payments, costs, expenses, fines and charges made or incurred by that person as a consequence of or which would not have arisen but for that circumstance;
(c) clause, schedule and paragraph headings shall not affect the interpretation of this Agreement;
(d) a reference to a person shall include a reference to an individual, firm, company, corporation, partnership, unincorporated body of persons, government, state or agency of a state or any association, trust, joint venture or consortium (whether or not having separate legal personality) and that person's personal representatives, successors, permitted assigns and permitted transferees;
(e) unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular;
(f) unless the context otherwise requires, a reference to one gender shall include a reference to the other genders;
(g) a reference to a party shall include that party's successors, permitted assigns and permitted transferees;
(h) a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time;
(i) a reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision;
(j) a reference to a time of day is to London time;
(k) a reference to writing or written includes e-mail but any notices required to be given to the Lenders, the Representative or the Security Trustee shall be given in accordance with clause 21 and shall not be deemed to be in writing if delivered by email.
(l) an obligation on a party not to do something includes an obligation not to allow that thing to be done;
(m) unless the context otherwise requires, a reference to a clause or schedule is to a clause of, or schedule to, this Agreement and a reference to a paragraph is to a paragraph of the relevant schedule;
(n) any words following the terms including, include, in particular, for example, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms;
(o) a reference to an amendment includes a novation, re-enactment, supplement or variation (and amended shall be construed accordingly);
(p) a reference to assets includes present and future assets, properties, undertakings, revenues, rights and benefits of every description;
(q) a reference to continuing in relation to an Event of Default means an Event of Default that has not been waived;
(r) a reference to determines or determined means, unless the contrary is indicated, a determination made at the discretion of the person making it;
(s) a reference to a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, inter-governmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;
(t) any act or omission by the Representative pursuant to this Agreement shall be deemed to be by each Lender and any right of a Lender arising under or in connection with this Agreement shall be enforced by the Representative whether or not expressly stated to be so enforceable by the Representative; and
(u) reference to Lender shall mean each lender of each Loan from time to time including each lender who becomes a lender after the date of this Agreement by signing an accession deed, loan transfer agreement and/or other document approved by the Representative by which the new lender agrees to the terms of this Agreement.
1.3 Lender’s rights and obligations
(a) The obligations of each Lender under the Finance Documents are several. Failure by a Lender to perform its obligations under the Finance Documents does not affect the obligations of any other party under the Finance Documents. No Lender is responsible for the obligations of any other Lender under the Finance Documents.
(b) The rights of each Lender under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Lender from the Borrower is a separate and independent debt in respect of which a Lender shall be entitled, except as specifically provided in the Finance Documents, to separately enforce its rights. The rights of each Lender include any debt owing to that Lender under the Finance Documents and, for the avoidance of doubt, any part of a Loan or any other amount owed by the Borrower which relates to a Loan (including any such amount payable to the Representative on its behalf) is a debt owing to that Lender by the Borrower.
If there is any conflict between the terms of this Agreement and the Terms of Service, the terms set out in this Agreement shall take priority to the extent necessary to resolve any conflict.
2.1 Each Lender irrevocably authorises the Representative and/or Security Trustee on its behalf to perform such duties and to exercise such rights and powers under the Finance Documents as are specifically delegated to them by the terms of the Finance Documents and by the Terms of Service, together with such rights and powers as are reasonably incidental to them.
2.2 In the exercise of any right or power and as to any matter not expressly provided for by any Finance Document or the Terms of Service, the Representative and/or Security Trustee may act or refrain from acting in accordance with the instructions of a Lender (or any of them), as they see fit, and shall be fully protected in so doing.
2.3 The Representative and Security Trustee shall use reasonable endeavours to monitor observance by the Borrower of the terms of the Finance Documents, or any other document in connection with any of them or any transaction envisaged by such documents. Notwithstanding the foregoing the Representative and Security Trustee shall not be deemed to have knowledge of the occurrence of any default unless the Representative or the Security Trustee has received notice, marked for the attention of the individual or holder of the office, or any successor office, from a party to the Finance Documents describing the default and stating that the notice is a 'notice of default'.
2.4 The Representative and Security Trustee may:
(a) rely on any communication or document believed by it to be genuine and correct, and
(b) engage, pay for and rely on legal or other professional advisers selected by it,
(c) and shall be protected in so relying.
2.5 The Representative and Security Trustee need not disclose any information relating to the Borrower or any related entities if such disclosure would or might, in the opinion of either the Representative or the Security Trustee, constitute a breach of any law or any duty of secrecy or confidence.
2.6 The Borrower agrees that, it shall communicate exclusively with the Representative in relation to any matter concerning the Loans, Facility, Security or otherwise relating to its performance, rights or obligations under or in connection with the Finance Documents or Terms of Service. The Borrower further agrees that any Lender who becomes a Lender after the date of this Agreement shall be entitled to enforce its separate rights under this Agreement and any Finance Document as if it had been a party to such documents at the time they were entered into by the Borrower.
2.7 Appointment of the Security Trustee
(a) The Security Trustee declares that it holds the Secured Assets on trust for itself, the Representative and each Lender on the terms of this Agreement, the Security Documents and any other terms separately agreed between them from time to time.
(b) Each Lender and the Representative authorises the Security Trustee to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Security Trustee under or in connection with the Finance Documents and the Terms of Service, together with any other incidental rights, powers, authorities and discretions.
2.8 Indemnity to the Representative and the Security Trustee
(a) The Borrower shall promptly indemnify the Representative and the Security Trustee against:
(i) Any cost, loss or liability incurred by the Representative (acting reasonably) or the Security Trustee (acting on the instructions of the Representative) as a result of:
(A) Investigating any event it believes to be an Event of Default or Potential Event of Default (including instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts to investigate the event);
(B) Acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or
(C) Instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement; and
(ii) Any loss or liability incurred by the Representative or the Security Trustee (otherwise than by reason of the Representative's or Security Trustee’s gross negligence or misconduct) in acting as Representative or Security Trustee (as applicable) under the Finance Documents and Terms of Service.
2.9 Notification of resignation of Representative or Security Trustee
(a) The Representative and the Security Trustee may resign and appoint a successor on the terms separately agreed by them. Upon the appointment of a successor, the retiring Representative or the Security Trustee shall be discharged from any further obligation in respect of the Finance Documents (and, where applicable, Terms of Service) but shall remain entitled to the benefit of clause 2 and clause 8 (Indemnity to the Representative and the Security Trustee) in respect of any matter arising before the date on which such resignation became effective to the extent not already claimed for. Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if that successor had been an original Party.
(b) The outgoing Representative or the Security Trustee will provide the Borrower with written notification of any resignation and appointment of a successor and will provide notice details for each such successor.
3. THE FACILITY
In consideration of the Borrower entering into this Agreement, each Lender makes available to the Borrower a Sterling term Loan in an amount equal to its Loan Amount, on the terms, and subject to the conditions, of this Agreement. The total aggregate amount made available under this Agreement shall be the Total Facility Amount.
4.1 The Borrower shall use all money borrowed under this Agreement for the Purpose. Any part of a Loan drawn down shall be held on trust by the Borrower for the respective Lender, Representative and Security Trustee until such time as such Loan shall be utilised or applied for the Purpose.
4.2 No Lender nor the Representative is obliged to monitor or verify how any amount advanced under this Agreement is used.
4.3 Where the Purpose is a project pursuant to which the Borrower is due to receive monies from a third party in respect of that project, all such monies received from the third party shall be (i) paid to the Representative or Security Trustee in reduction of the Loans, (ii) held on trust for the Representative, Lenders and Security Trustee until such time as they are paid to the Lenders, Representative or Security Trustee, and (iii) credited to the Controlled Account.
5.1 On the drawdown date specified in the Commercial Terms or such other date(s) as the parties shall agree, and subject to clause 6 below, the Borrower shall notify the Representative in writing that the drawdown of the Facility is required. Such notice shall be irrevocable. After receiving such notification the Representative shall, subject to receipt of the monies from the Lenders in accordance with the amounts payable by them, pay the amount of the proposed Loan(s) to the Borrower’s bank account. The amount of such Loan(s) shall not exceed in aggregate the Total Facility Amount. The Facility shall be drawn down in one or more instalments as may be agreed between the parties in writing.
5.2 If the Total Facility Amount is not drawn down in full, the amount so drawn down shall be drawn pro rata from each Lender in a proportion that a Lender’s Loan Amount bears to the Total Facility Amount
6. CONDITIONS PRECEDENT
6.1 The Borrower may not give notice of confirmation that it wishes to draw the Loans or arrange the draw down date unless the Representative has received all the documents and evidence specified in the Commercial Terms in form and substance satisfactory to the Representative.
6.2 A Lender will only make their Loan available if, on both the date of the notice of confirmation that the Borrower wishes to draw down the Loan and the drawdown date(s), the Borrower has confirmed that:
(a) the representations and warranties in clause 11 are true and correct and will be true and correct immediately after the Lender has made the proposed Loan;
(b) no Event of Default or Potential Event of Default is continuing or would result from the proposed Loan; and
(c) all costs and expenses due from the Borrower pursuant to this Agreement have been paid or will be paid by the drawdown date.
6.3 The notice of confirmation must be given during the Availability Period. If it is not the Facility will lapse and all fees and expenses incurred by the relevant Lenders, the Representative and/or the Security Trustee shall be paid by the Borrower on demand.
7.1 The Borrower shall pay interest on each Loan at the rate specified in the Commercial Terms.
7.2 Interest is a specified percentage of the Loan’s principal payable by the Borrower. It is payable to the Bank Account set out in the Commercial Terms (or notified separately), shall accrue daily and shall be payable on the Business Day specified in the Commercial Terms. The interest rate includes a specified percentage known as the Representative’s monitoring fee. This monitoring fee is payable for the Representative, on behalf of the Lender, to monitor the performance of the Borrower and its ability to repay the Loan; this monitoring service is subject to the standard rate of VAT. The Representative will provide a VAT invoice to the Borrower on a monthly basis.
7.3 If the Borrower fails to make any payment due under this Agreement on the due date for payment, interest on the unpaid amount shall accrue daily, from the date of non-payment to the date of actual payment (both before and after judgment), at the Default Rate.
7.4 If the Borrower fails to make any interest payment under this Agreement, the Representative shall be entitled, but not obliged, to account to the Lenders for such interest that each Lender was due under the Finance Documents. Where the Representative in its sole discretion elects to make such payment to a Lender, the Borrower shall pay the Representative’s administrative fee of 10% of the interest payment due (“Administration Fee”) in addition to the interest payment due under clause 7.1 and 7.2 and default interest due under clause 7.3. The Representative may collect the Administration Fee as it sees fit, including without limitation appropriating it from sums in the Controlled Account. The Representative’s rights under this clause 7.4 shall be without prejudice to its other rights and remedies under this Agreement.
8. COSTS, INCREASED AND INDEMNITIES
8.1 The Borrower shall pay, on demand, the marketing and advertising fee (plus VAT), alternatively, at the option of the Representative, it shall be settled from the aggregate proceeds of all Loans, with the net amount available to be drawn downThe marketing and advertising fee are payable if the funds are raised through the Representative’s platform regardless of whether or not the Loans are drawn down.
8.2 The Borrower shall reimburse the Representative for the legal fees incurred by the Representative in connection with the entry into, amendment, extension, alteration, preservation and enforcement of the Loans and/or the Finance Documents up to £2,500 plus VAT per event. Any fees in excess of this which the Representative reasonably needs to incur shall, in each case be agreed with the Borrower. Where no such agreement can be reached the Borrower shall pay the legal fees reasonably incurred by the Representative, except in the case of preservation and enforcement of the Finance Documents when such fees shall be paid by the Borrower on an indemnity basis.
8.3 The Borrower shall reimburse the Representative for all costs incurred by the Representative in connection with the operation of the Controlled Account.
8.4 The Borrower shall incur late reporting and late payment fees on each occasion that surpasses 48 hours from the due date the charges will vary depending on time delayed but not exceed £250 plus VAT on each occasion. A further £250 plus VAT may be charged each week that the matter remains unresolved. Late reporting and late payments fees are charged at the Representatives discretion.
8.5 When the Representative has to consult with the Borrower in relation to changing the terms of the original facility agreement additional charges may apply to each change but will not exceed £750 plus VAT for each amendment.
8.6 All costs incurred by the Representative will be charged to the Borrower with an additional 15% processing charge plus VAT and incur interest at 5% per month until the charges are paid.
8.7 The Borrower shall pay any stamp, documentary and other similar duties and taxes to which the Finance Documents may be subject, or give rise and shall indemnify each Lender, Security Trustee and Representative against any losses or liabilities that it may incur as a result of any delay or omission by the Borrower in paying any such duties or taxes.
8.8 Increased Costs
The Borrower shall, within three (3) Business Days of demand by the Representative, pay the amount of any Increased Costs incurred by any Lender, Security Trustee or Representative as a result of:
(a) the introduction of or any change in (or in the interpretation, administration or application of) any law; or
(b) compliance with any law made after the date of this Agreement,
except to the extent that such Increased Costs are directly related to any reclassification or re-categorisation of such Lender.
(i) The Borrower shall, on demand by the Representative, indemnify each Lender, Security Trustee and Representative against any cost, loss or liability reasonably incurred by any of them:
(a) as a result of the occurrence of any Event of Default or Potential Event of Default by the Borrower or in investigating any event which the Representative reasonably believes is an Event of Default or Potential Event of Default, including the cost of management time in investigating or managing such (Potential) Event of Default; or
(b) as a result of funding, or making arrangements to fund, a Loan requested in a draw down request but which is not made by reason of the operation of any provision of this Agreement (other than by reason of default or negligence by the relevant Lender) or the Borrower purporting to revoke a draw down request;
(c) as a result of any repayment or prepayment of a Loan being made other than in accordance with the terms of this Agreement;
(d) in connection with running the Controlled Account during the term of this Agreement and any period after repayment of the Loans in full when the Controlled Account continues to be operated by the Representative, provided that (i) the Representative’s charges for continuing to operate the Controlled Account in the two month period following repayment of the Loans in full shall be charged to the Borrower at cost and after said two month period shall be payable at such rate as the Representative shall notify, and (ii) the Borrower may, upon repayment of the Loans in full, elect to close the Controlled Account at any time without charge, by serving written notice on the Representative;
(e) as a result of acting or relying on any notice, request or instruction from the Borrower which the Representative reasonably believes to be genuine, correct and appropriately authorised;
(f) as a result of the exercise of any of the rights, powers, discretions and remedies vested in the Representative, Security Trustee and each Lender and each receiver and their delegates by the Finance Documents or by law; or
(g) any default by the Borrower in the performance of any of the obligations expressed to be assumed by it in the Finance Documents.
(ii) Each indemnity in this Agreement:
(a) is a separate and independent obligation from the other obligations in this Agreement;
(b) gives rise to a separate and independent cause of action;
(c) applies whether or not any indulgence is granted by the Representative; and
(d) shall continue in full force and effect despite any judgment, order, claim or proof for a liquidated amount in respect of any sum due under this Agreement, or any other judgment or order.
9.1 The Borrower shall repay each Loan into the Controlled Account in the instalments and at the times specified in the Commercial Terms, together with all interest accrued and due up to the date of payment in each case.
9.2 Value to Loan
If at any time the Value to Loan ratio is below 100%, the Borrower shall, within 3 Business Days of being notified of this or of discovering it (in which case it shall promptly notify the Representative) prepay such amount as is required to bring the Value to Loan ratio to 100% or above.
9.3 Prepayment and cancellation - general
(a) At the same time as it makes any repayment under this Clause 9 (or otherwise makes any repayment under this Agreement) or when it is required to repay all or any part of the Loans to the Representative and the Lenders following an Event of Default, the Borrower shall also pay all accrued interest in respect of the amount of the Loans which are prepaid.
(b) All repayments or prepayments of any of the Loans must be paid together with all fees, costs and expenses due under the Finance Documents.
(c) The Borrower may repay all or any part of the Loans, together with fees, costs and expenses in accordance with clause 9.3(b) before the end of the repayment term specified in the Commercial Terms without break costs or penalty. The Borrower will be required to pay the interest that is due for the current period at the date of such repayment according to its payment schedule.
(a) Cancellation of any or all of the Total Facility Amount will be permanent, unless a contrary indication appears in this Agreement.
(b) Any repayment under this Agreement shall be applied pro rata across all outstanding Loans and in inverse order of maturity or as otherwise directed by the Representative.
(c) The Borrower may not re-borrow any part of the Facility which is repaid or prepaid.
9.5 Appropriation from Controlled Account
(a) The Borrower acknowledges, understands and accepts that should it fail to make any payment of capital, interest or fees when due:
(i) all payments received into the Controlled Account shall be retained by the Representative or Security Trustee unless the Representative or Security Trustee otherwise in its sole discretion decides;
(ii) neither the Representative nor the Security Trustee is under any obligation to release any funds to the Borrower from the Controlled Account;
(iii) if the Representative or Security Trustee refuses to release funds from the Controlled Account to the Borrower, the Borrower cannot oblige them (or either of them) to do so;
(iv) if the Representative or Security Trustee decides to release any payment to the Borrower, it may do in such amount and on such terms as it in its sole discretion deems fit.
(b) The Borrower further warrants and represents that it understands and accepts that any payment so released shall not operate to waive any rights of the Representative or Security Trustee to receive and retain further or subsequent payments into the Controlled Account.
10. PAYMENTS INCLUDING TAX GROSS-UP AND INDEMNITY
10.1 All payments made by the Borrower under the Finance Documents shall be in Sterling and in cleared funds.
10.2 If any payment becomes due on a day that is not a Business Day, the due date of such payment will be extended to the next succeeding Business Day, or, if that Business Day falls in the following calendar month, such due date shall be the immediately preceding Business Day.
10.3 All payments made by the Borrower under the Finance Documents shall be made in full, without set-off, counterclaim or condition, and free and clear of, and without any Tax Deduction or withholding, provided that, if the Borrower is required by law or regulation to make such deduction or withholding, it shall:
(a) ensure that the Tax Deduction or withholding does not exceed the minimum amount legally required;
(b) pay to the relevant taxation or other authorities, as appropriate, the full amount of the Tax Deduction or withholding;
(c) furnish to the Representative, within the period for payment permitted by the relevant law, either:
(i) an official receipt of the relevant taxation authorities concerned on payments to them of amounts so deducted or withheld; or
(ii) if such receipts are not issued by the taxation authorities concerned on payment to them of amounts so deducted or withheld, a certificate of deduction or equivalent evidence of the relevant Tax Deduction or withholding; and
(d) pay to the Representative on behalf of the relevant Lender such additional amount as is necessary to ensure that the net full amount received by such Lender after the required Tax Deduction or withholding is equal to the amount that such Lender would have received had no such Tax Deduction or withholding been made.
10.4 Tax indemnity
(a) The Borrower shall, within three (3) Business Days of demand by the Representative, pay to the Representative an amount equal to the loss, liability or cost which the Representative reasonably determines will be or has been (directly or indirectly) suffered by the Finance Parties for or on account of Tax in respect of any Finance Document except to the extent the loss, liability or cost relates to a FATCA Deduction required to be made by a Party.
(b) Clause 10.4(a) shall not apply to any Tax assessed on any Finance Party under the law of the jurisdiction in which that Finance Party is incorporated or resident for tax purposes if that Tax is imposed on, or calculated by reference to, the net income, profits or gains received or receivable by the relevant Finance Party.
(a) All consideration expressed to be payable under any Finance Document by the Borrower to the applicable Finance Party will be deemed to be exclusive of any VAT. If VAT is chargeable on any supply made by any applicable Finance Party to the Borrower in connection with a Finance Document, the Borrower shall pay to that Finance Party (in addition to and at the same time as paying the consideration) an amount equal to the amount of the VAT.
(b) Where any Finance Document requires the Borrower to reimburse any Finance Party for any costs, expenses or fees, the Borrower shall also, at the same time, pay and indemnify the relevant Finance Party against all VAT incurred by that Finance Party in respect of the costs, expenses or fees to the extent that the Finance Party reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of the VAT.
11. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Representative, Security Trustee and to each Lender on the date of this Agreement:
11.1 It has the power and authority to execute, deliver and perform its obligations under the Finance Documents and the transactions contemplated by them. No limit on its powers will be exceeded as a result of the borrowing or the grant of any Security contemplated by the Finance Documents.
11.2 The execution, delivery and performance of the obligations in, and transactions contemplated by, the Finance Documents, will create legal, valid, binding and enforceable obligations on the Borrower and will not contravene, default, terminate or conflict with any other agreement or instrument binding on it or its assets or any law or regulation or judicial or official order, applicable to it.
11.3 No Event of Default or Potential Event of Default has occurred or is continuing, or is reasonably likely to result from making any Loan or the entry into, the performance of, or any transaction contemplated by the Finance Documents.
11.4 No other event or circumstance is outstanding which constitutes (or, with the expiry of a grace period, the giving of notice, the making of any determination or any combination thereof, would constitute) a default or termination event (howsoever described) under any other agreement or instrument which is binding on the Borrower or to which any of its assets is subject which has or is reasonably likely to have a Material Adverse Effect on its business, assets or condition or ability to perform its obligations under the Finance Documents.
11.5 No litigation, arbitration or administrative proceedings are taking place, pending or, to the Borrower's knowledge, threatened against it, any of its directors or any of its assets other than monetary claims brought by the Borrower in the normal course of the Borrower’s business.
11.6 Its audited or unaudited (as the case may be) financial statements submitted to the Representative have been prepared in accordance with consistently applied GAAP principles, standards and practices and present a true and fair view of its financial condition and operations during the relevant accounting period and were approved by the Borrower's directors.
11.7 The information, in written or electronic format, supplied by the Borrower, or on its behalf, to the Representative or posted on the Representative’s platform in connection with the Facility and the Finance Documents, or provided pursuant to the Terms of Service, was, at the time it was supplied or at the date it was stated to be given (as the case may be):
(a) if it was factual information, complete, true and accurate in all material respects;
(b) if it was a financial projection or forecast, prepared on the basis of recent historical information and on the basis of reasonable assumptions and was fair and made on reasonable grounds;
(c) if it was an opinion or intention, made after careful consideration and was fair and made on reasonable grounds; and
(d) not misleading in any material respect, nor rendered misleading by a failure to disclose other information,
except to the extent that it was amended, superseded or updated by more recent information supplied by, or on behalf of, the Borrower to the Representative. The Borrower is not aware of any material facts or circumstances about itself or any group company that have not been disclosed to the Representative and that would be likely if disclosed materially and adversely affect the decision of a person considering whether or not to provide finance to the Borrower on the terms of this Agreement.
11.8 This Agreement is an electronic agreement, solely in electronic form and is executed electronically with no original paper counterpart.
11.9 It will not change the mandate given in respect of the Controlled Account or interfere with the Representative’s access to or operation of the Controlled Account or sums to the credit of the Controlled Account and it will not solicit, encourage or accept payment by its customers into an account other than the Controlled Account.
11.10 The counterparts and instruments comprising the Relevant Agreements as provided to the Representative before the date of this Agreement, evidence all terms of the Relevant Agreements, and there are no other documents, agreements or arrangements that may affect any of the Relevant Agreements.
11.11 No Relevant Agreement is void, voidable or otherwise unenforceable.
11.12 No variation of any Relevant Agreement is contemplated.
11.13 The Borrower is not in breach of its obligations under any Relevant Agreement, and nothing has occurred:
(a) which is, or would constitute (with the giving of notice or passage of time or both), an event of default (however described) under any Relevant Agreement; or
(b) which would entitle a person to terminate or rescind a Relevant Agreement; or
(c) which would entitle the counterparty to the Relevant Agreement to a service credit or other reduction in the Relevant Revenue payable by it.
11.14 It is not (and none of its subsidiary companies is) overdue in the filing of any Tax returns and it is not (and none of its subsidiary companies is) overdue in the payment of any amount in respect of Tax.
11.15 No claims or investigations are being, or are reasonably likely to be, made or conducted against it (or any of its subsidiary companies) with respect to Taxes such that a liability of, or claim against it, of £5,000 (or its equivalent) or more is reasonably likely to, arise.
11.16 It has obtained and maintains insurances with reputable insurance companies or underwriters insurance in respect of its business and assets against such risks as is usual for companies carrying on the same or substantially similar business as the Borrower, and no event or circumstance has occurred, nor has there been any omission to disclose a fact, which would in either case entitle any insurer to avoid or otherwise reduce its liability to a material extent under any policy relating to such insurances.
11.17 It has fully and properly complied with its Personal Data Processing Obligations.
11.18 Each of the representations and warranties in this clause 11 is deemed to be repeated by the Borrower on:
(a) the date of each request to draw down any of the Facility;
(b) the date that the Facility and each instalment of the Facility is actually drawn down; and
(c) each day that any part of any Loan (or any interest thereon) remains outstanding and unpaid by the Borrower,
by reference to the facts and circumstances existing on each such date.
The Borrower covenants with the Representative, Security Trustee and with each Lender that, as from the date of this Agreement until all its liabilities under the Finance Documents have been discharged:
12.1 It will deliver to the Representative;
(a) prior to draw down, the directors’ certificate at Schedule 2 of the Facility Agreement executed by the Borrower’s directors;
(b) a signed and completed version of the Directors Certificate, as outlined in Schedule 2 of the Facility Agreement by the 25th day of each month. This is to be done by logging on to the Representative’s online platform found at https://secure.archover.com/
(c) promptly, all notices or other documents dispatched by the Borrower to its shareholders (or any class of them) or to its creditors generally; and
(d) promptly, such financial or other information as the Representative may, from time to time, reasonably request relating to the Borrower or its business.
12.2 It will deliver to the Representative as required by the Security Trustee when holding a debenture:
(a) within 120 days after the end of each of its financial years, its audited or unaudited accounts;
(b) within 20 days after the end of each calendar month, its monthly management accounts with management commentary that includes a general business update and a review on the key covenants in this agreement;
(c) within 5 days after the end of each calendar month, a full detailed aged debtor listing (and if applicable, work in progress, stock in trade and retentions report), in the form agreed with the Representative; and
(d) within 5 days after the end of each calendar month supply a full detailed list of customers, the remaining duration of their Relevant Agreements and the Relevant Revenue arising from each customer under each Relevant Agreement in the previous month and the next 6 months together with details of new customers who have signed a Relevant Agreement, customers which have not renewed their Relevant Agreement(s) or have terminated it/them or the Relevant Agreement has been terminated and customers which have changed or whose Relevant Agreements or the commercial arrangements of the Relevant Agreements have been altered and in each case the value in pound Sterling of such customers/Relevant Agreements;
12.3 It will promptly, after becoming aware of them, notify the Representative of any litigation, arbitration or administrative proceedings or claim against the Borrower.
12.4 It will promptly obtain all Authorisations necessary (and do all that is needed to maintain them in full force and effect) under any law or regulation to enable it to perform its obligations under the Finance Documents and to ensure the legality, validity, enforceability and admissibility in evidence of the Finance Documents in its jurisdiction of incorporation.
12.5 It will procure that any of its unsecured and unsubordinated obligations and liabilities under the Finance Documents rank, and will rank, at least pari passu in right and priority of payments with all its other unsecured and unsubordinated obligations and liabilities, present or future, actual or contingent, except for those obligations and liabilities mandatorily preferred by law of general application to companies.
12.6 It will comply, in all respects, with all laws.
12.7 It will notify the Representative of any Potential Event of Default or Event of Default (and the steps, if any, being taken to remedy it) promptly on becoming aware of its occurrence.
12.8 If the Representative is obliged for any reason to comply with "know your customer" or similar identification procedures, the Borrower will, promptly on the request of the Representative, supply (or procure the supply of) such documentation and other evidence as is reasonably requested in order for the Representative to be satisfied that it has complied with all necessary "know your customer" or other similar laws and regulations.
12.9 It will carry on and conduct its business in a proper and efficient manner and will not, without the prior written agreement of the Representative, make any change to the general nature or scope of its business as carried on at the date of this Agreement.
12.10 It will not, without the Representative’s prior written consent:
(a) create, or permit to subsist, any Security on or over any of its assets other than Security created pursuant to the Security Document;
(b) sell, transfer or otherwise dispose of any of its assets on terms whereby such assets are or may be leased to or re-acquired or acquired by it; or
(c) sell, transfer or otherwise dispose of any of the Accounts Receivables; or
(d) enter into any trading arrangement which may give rise to a set-off or combination of accounts; or
(e) enter into any arrangement or transaction as a method of raising Borrowed Money or of financing the acquisition of an asset.
12.11 It will maintain the Relevant Revenue at the rate specified in the Commercial Terms or otherwise notified by the Representative in writing from time to time.
12.12 It will not, without the prior written consent of the Representative and/or Security Trustee, sell, assign, lease, transfer, purport to, or otherwise dispose of all or any part of, or any interest in, its assets other than:
(a) trading stock in the ordinary course of its business;
(b) assets exchanged for other assets comparable or superior as to type, value and quality; and
(c) assets whose market value is worth less than £1,000 (or its equivalent in another currency or currencies) in any financial year.
12.13 It shall forthwith suspend payment of any distributions and dividends on the occurrence of, or notification by the Representative of, a suspected or actual Potential Event of Default or Event of Default.
12.14 Save where it is notified by the Representative pursuant to clause 12.21 to suspend dividend payments, its dividend policy and dividend payments will remain as forecast and notified to the Representative prior to the date of this Agreement or otherwise agreed with the Representative in writing, provided that in no event shall the aggregate dividends paid or declared in any financial year of the Borrower exceed 50% of the Borrower’s net profits.
12.15 Except as agreed with the Representative in writing, the Borrower shall not lend to or borrow from any holding, subsidiary or sister company of the Borrower or to or from any director, officer, agent or employee of the Borrower or of such holding, subsidiary or sister company of the Borrower and no loans to directors of the Borrower and/or of group companies of the Borrower shall increase throughout the term of this Agreement. Except as agreed with the Representative in writing, no loans from directors of the Borrower and/or of group companies of the Borrower shall decrease throughout the term of this Agreement.
12.16 It will not lend any Loan or any part of it to any other party.
12.17 It shall permit the Representative and/or its accountants or other professional advisers of the Representative access at all reasonable times and on reasonable notice at the risk and cost of the Borrower to the premises, assets, books, accounts (including on-line access to such accounts) and records of the Borrower.
12.18 It shall (i) file all Tax returns required to be filed within the time period allowed (including any applicable grace period); and (ii) pay all Taxes shown to be due and payable on such returns or any assessments made against it within the time period allowed (including any applicable grace period) (other than amounts being contested in good faith in respect of which payment may be lawfully withheld and in respect of which it maintains appropriate reserves).
12.19 It shall notify its customers to pay all sums due to it into the Controlled Account and shall reissue standing order mandates to its customers to set up and enable payment of all sums into the Controlled Account or applicable account controlled by the Representative or Security Trustee. It shall notify the Grant Body to pay all sums due to it in respect of the Claim into the Controlled Account. Where the Purpose is a project pursuant to which the Borrower is due to receive monies from a third party, the Borrower shall, and shall notify such third party to, pay all monies received from the project into the Controlled Account.
12.20 Where notwithstanding the notifications given pursuant to clause 12.18, any payment is made into an account other than the Controlled Account and such account is controlled by the Borrower or by a company associated with the Borrower, the Borrower shall hold all sums received into such account on trust for the Representative and Security Trustee and in the case of a company associated with the Borrower shall notify that company that such sums are subject to a trust in favour of the Representative and Security Trustee. Such payments shall forthwith be recovered and paid by the Borrower into the Controlled Account.
12.21 Where the Purpose is a project pursuant to which the Borrower is due to receive monies from a third party in respect of that project, the Borrower shall (i) pay all such monies received from the third party to the Representative or Security Trustee in reduction of the Loan,
12.22 It shall comply with the terms of any Relevant Agreement and shall not:
(a) amend or vary or agree to any change in, or waive any requirement of;
(b) settle, compromise, terminate, rescind or discharge (except by performance); or
(c) abandon, waive, dismiss, release or discharge any action, claim or proceedings against any counterparty or other person in connection with,
any Relevant Agreement or Relevant Revenue.
12.23 It shall not enter into any transaction with any person except on arm’s length terms and for full market value.
12.24 It shall comply with the terms of its customer agreements and shall not settle, compromise, discount, release, exchange, compound, credit or extend the time for payment of any of its Accounts Receivable except in the ordinary course of business or otherwise with the Representative’s prior written consent.
12.25 It shall give the Representative access to its bank information and transactions via an Open Banking portal, or if the Representative so agrees, another form of OAuth access to its bank information. If required by the Representative, the Borrower shall refresh its authority for the access of the Representative to its banking information when and in the way the Representative requires.
13. EVENTS OF DEFAULT
Each of the events or circumstances set out in this clause 13 (other than clause 13.23 and 13.24) is an Event of Default.
13.1 The Borrower breaches, or threatens to breach, or otherwise fails to comply with any term of any Finance Document.
13.2 The Borrower fails to pay any sum payable under any Finance Document when due, unless its failure to pay is caused solely by an administrative error or technical problem beyond the control of the Borrower and payment is made within three Business Days of its due date.
13.3 Any representation, covenant, warranty or statement made, repeated or deemed made by the Borrower in, or pursuant to, any Finance Document is (or proves to have been) incomplete, untrue, incorrect or misleading when made, repeated or deemed made.
(a) any Borrowed Money is not paid when due or within any originally applicable grace period; or
(b) any Borrowed Money becomes due, or capable or being declared due and payable by any creditor prior to its stated maturity by reason of an event of default howsoever described; or
(c) any commitment for Borrowed Money is cancelled or suspended by a creditor of the Borrower by reason of an event of default howsoever described.
13.5 The Borrower stops or suspends payment of any of its debts, or is unable to, or admits its inability to, pay its debts as they fall due.
13.6 The value of the Borrower's assets is less than its liabilities (taking into account contingent and prospective liabilities).
13.7 The rate of contracted forward revenue or Relevant Revenue under Relevant Agreements (as defined in the Security Document) falls below the rate specified in the Security Document or rate otherwise agreed with the Representative.
13.8 The Value to Loan decreases below the percentage specified in clause 9.2 and the Borrower does not take the required steps to remedy this.
13.9 A moratorium is declared in respect of any Indebtedness of the Borrower.
13.10 Any action, proceedings, procedure or step is taken for:
(a) the suspension of payments, a moratorium of any Indebtedness, winding up, dissolution, administration or reorganisation (using a voluntary arrangement, scheme of arrangement or otherwise) of the Borrower; or
(b) the composition, compromise, assignment or arrangement with any creditor; or
(c) the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of the Borrower or any of its assets.
13.11 The Borrower commences negotiations, or enters into any composition, compromise, assignment or arrangement, with one or more of its creditors with a view to rescheduling any of its Indebtedness (because of actual or anticipated financial difficulties).
13.12 A distress, attachment, execution, expropriation, sequestration or another analogous legal process is levied, enforced or sued out on, or against, the Borrower's assets and is not discharged or stayed within 21 days.
13.13 Any event occurs in relation to the Borrower similar to those in clause 13.4 to clause 13.12 (inclusive) under the laws of any applicable jurisdiction.
13.14 Any provision of any Finance Document is or becomes, for any reason, invalid, unlawful, unenforceable, terminated, disputed or ceases to be effective or to have full force and effect or any covenant in any Finance Document is breached.
13.15 The Borrower ceases, or threatens to cease, to carry on all or a substantial part of its business.
13.16 Any event or circumstance occurs which has, or is likely to have, a Material Adverse Effect.
13.17 The auditors of the Borrower qualify (other than minor technical qualifications) the audited consolidated financial statements of the Borrower for any financial year.
13.18 There is a Change of Control of the Borrower.
13.19 Any Relevant Agreement is terminated for any reason (except where termination is due to expiry or non-renewal of the Relevant Agreement in the normal course).
13.20 Any Authorisation required or relied on by the Borrower for the conduct of its business expires, lapses, is suspended, withdrawn, terminated or conditioned in any way.
13.21 Any part of a Loan is used other than for the Purpose.
13.22 The Borrower either fails to provide, causes to cease or otherwise removes the access granted to the Representative to the Borrower’s banking information.
13.23 At any time after an Event of Default has occurred, the Representative may, by notice to the Borrower:
(a) cancel all outstanding obligations of the Lenders and Representative under this Agreement whereupon they shall be immediately cancelled; and/or
(b) declare that each Loan (and all accrued interest and all other amounts outstanding under this Agreement) is immediately due and payable, whereupon they shall become immediately due and payable; and/or
(c) declare that each Loan be payable on demand, whereupon it shall become immediately payable on demand by the Representative; and/or
(d) declare any Security Document to be enforceable.
13.24 Without prejudice to its rights under clause 13.23, the Representative may, but is under no obligation so to do, allow the Borrower a period of up to 14 days to remedy the Event of Default before taking action pursuant to clause 13.23 and any remedy shall not comprise or be deemed a waiver of any future breach of the same, similar or any type.
14.1 The Representative may at any time set off any liability of the Borrower to a Lender and/or Representative and/or Security Trustee against any liability of such Lender, Representative or Security Trustee to the Borrower, whether either liability is present or future, liquidated or unliquidated, and whether arising under any Finance Document or otherwise.
14.2 If the liabilities to be set off are expressed in different currencies, the Representative may convert either liability at a market rate of exchange for the purpose of set-off.
14.3 Any exercise by the Representative of the Representative’s, Security Trustee’s and/or Lender’s rights under clause 14.1 shall not limit or affect any other rights or remedies available to it under the Finance Documents or otherwise.
14.4 The Representative is not obliged to exercise any rights under clause 14.1, but if the rights are exercised, the Representative shall promptly notify the Borrower of the set-off that has been made.
15. CALCULATIONS, ACCOUNTS AND CERTIFICATES
15.1 Any interest, commission or fee under any Finance Document shall accrue on a day-to-day basis, calculated according to the number of actual days elapsed and a year of 365 days.
15.2 The Representative shall maintain accounts evidencing the amounts owed to it by the Borrower, in accordance with its usual practice. Entries in those accounts shall be prima facie evidence of the existence and amount of the Borrower's obligations as recorded in them save for manifest error.
15.3 If the Representative issues any certificate, determination or notification of a rate or any amount payable under a Finance Document, it shall be (in the absence of manifest error) conclusive evidence of the matter to which it relates.
16. REMEDIES, WAIVERS, AMENDMENTS AND CONSENTS
16.1 Any term of this Agreement can be varied, in writing, if the Representative and Borrower so agree.
16.2 The Representative, on behalf of the Finance Parties, may vary any other term or condition of the Agreement at any time having given the Borrower 30 days' written notice
16.3 The Representative may communicate such changes made pursuant to clause 16.2 by sending the Borrower a summary of the changes. The summary will contain a referral to the Representative’s website where detailed information relating to the changes and/or revised Standard Terms and Conditions can be found.
16.4 Once The Representative has given notice to the Borrower of the proposed changes, they will take effect on the date indicated.
16.5 From time to time the Finance Parties may, for any reason set out in clause 16.6 below, update or replace these Standard Terms and Conditions, which are available to be reviewed and printed online at any time. The Borrower agrees that it will be bound by the changes made to these Standard Terms and Conditions from time to time, but any Commercial Terms set out in the Agreement shall apply in precedence to the Standard Terms and Conditions.
16.6 The changes referred to in clause 16.5 may be made for one or more of the following reasons:
(a) to reflect the introduction or development of new systems, methods of operation, services or facilities or technology provided that the change is a proportionate response to the underlying reason for the change;
(b) to maintain or improve operating conditions or service levels;
(c) to respond proportionately to any change or an expected change in market conditions, general banking practice or the cost of providing services to Borrowers or Lenders;
(d) to respond proportionately to legal or regulatory changes. This would include to conform with or anticipate changes in the law or taxation, or codes of practice or recommendations of the Financial Conduct Authority, the Prudential Regulation Authority or other regulatory body;
(e) to make these Standard Terms and Conditions fairer or clearer for you;
(f) to rectify any mistake that might be discovered in due course; or
(g) for any other valid reason which is not specified in this clause 16.6 provided that the change is a proportionate and reasonable response to the underlying reason for the change.
16.7 A hard copy of the then current Standard Terms and Conditions is available to be sent to you, upon request, and at your expense.
16.8 The rights and remedies provided under the Finance Documents are cumulative and are in addition to, and not exclusive of, any rights and remedies provided by law.
16.9 The rights of each Lender, the Representative and/or the Security Trustee under the Finance Documents will not be affected in any way by the Representative granting the Borrower time or indulgence, and no waiver by the Representative of any requirement of this Agreement will constitute a waiver of that requirement in the future or of any other requirement. No failure or delay on the part of the Representative and/or the Security Trustee in the exercise of any of their rights under the Finance Documents will constitute a waiver of that right. No failure or delay, granting of time or indulgence by the Representative to the Borrower shall be construed in any way as a representation of our acceptance, waiver of or otherwise acquiescence in or to any action or inaction, constituting a breach by the Borrower of any term of this Agreement.
If any provision (or part of a provision) of any Finance Document is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision (or part of a provision) shall be deemed deleted. Any modification to or deletion of a provision (or part of a provision) under this clause shall not affect the legality, validity and enforceability of the rest of the Finance Documents.
18. BROKER’S COMMISSION
18.1 If this Agreement was made as a result of introduction of the Borrower to the Representative by a Broker, the Borrower agrees that:
(a) the Broker was not acting as an agent for the Finance Parties and was not authorised to make any representations about any of the Finance Parties or this Agreement, nor will any such representations be binding the Finance Parties; and
(b) the Finance Parties may pay commission to the Broker as a consequence of the Borrower entering into this Agreement. If requested by the Borrower, the Representative will provide details of the amount of the commission, if any.
19. LIMITATION OF LIABILITY
19.1 The Finance Parties will not be liable to the Borrower for any loss or damage, consequential or otherwise, that is caused in any way by the Finance Parties, including loss caused by an unforeseeable event or any circumstance beyond the Finance Parties control, unless the exclusion of such loss or damage is prohibited by law.
20. ASSIGNMENT AND TRANSFER
20.1 The Representative and Security Trustee may assign or otherwise transfer any of its rights under the Finance Documents or Terms of Service.
20.2 A Lender may assign any of its rights under the Finance Documents.
20.3 The Borrower may not assign or transfer any of its rights or obligations under any Finance Document.
21. ELECTRONIC DOCUMENT AND COUNTERPARTS
21.1 Electronic Document
This Agreement shall be in electronic form and executed electronically with no original paper counterpart. Any print out of the electronic document shall be deemed a copy of the electronic original.
(a) Each Finance Document may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute one agreement.
(b) No counterpart shall be effective until each party has executed at least one counterpart.
22. THIRD PARTY RIGHTS
22.1 Except as expressly provided in this Agreement, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or enjoy the benefit of any of its terms.
23.1 Subject to clause 21.2, any notice or other communication given by a party to another under or in connection with, any Finance Document shall be:
(a) in writing;
(b) delivered by hand by pre-paid first-class post or other next working day delivery service; and
(c) sent to the address set out in the Commercial Terms, or to any other address as is notified in writing by the receiving party to the other (on not less than seven days written notice in advance) from time to time.
23.2 Any notice or other communication that the Representative gives to the Borrower shall be deemed to have been received:
(a) if delivered by hand, at the time it is left at the relevant address;
(b) if posted by pre-paid first-class post or other next working day delivery service, on the second Business Day after posting when sent to the address set out in the Commercial Terms, or to any other address notified in writing to the Representative by the Borrower (on not less than seven days written notice in advance) from time to time; and
(c) if sent by email, when sent provided no delay or failure in delivery message is received in return, and subject to a hard copy being sent by pre-paid first class post or other next working day delivery service .
23.3 A notice or other communication given as described in clause 21.1 or clause 21.2 (but subject to clause 21.4) on a day that is not a Business Day, or after normal business hours, in the place it is received, shall be deemed to have been received on the next Business Day.
23.4 Any notice or other communication given to the Representative shall be deemed to have been received only on actual receipt.
24 DATA SHARING AND DATA PROTECTION
24.1 Words and phrases with defined meanings in the Data Protection Laws have the same meanings when used in this Agreement, unless otherwise defined in this Agreement.
24.2 If the GDPR ceases to apply to the United Kingdom, references to the GDPR, to provisions within it and to words and phrases with defined meanings in it, shall be deemed references to the nearest equivalent provisions in it and the nearest equivalent words and phrases in it or any law enacted to replace the GDPR (as the case may be).
24.3 The Borrower and the Finance Parties will comply with the Data Protection Laws applicable in connection with this Agreement, and will not cause the other party to breach any of its obligations under Data Protection Laws.
24.4 Where the Borrower has provided Personal Data to the Representative it is the data controller. The Representative and/or Security Trustee may become the data controller of Personal Data they receive.
24.5 The Representative and/or Security Trustee will only process Personal Data that is shared with them in order to meet their obligations in this Agreement.
24.6 The Representative and/or Security Trustee shall transfer such Personal Data to those people and agents that provide services to them, where required, but shall ensure that the agreements governing such transfer of Personal Data provide for its security. They may also transfer such data to other parties as required by law.
24.7 The Borrower shall explain to individuals whose Personal Data is affected in its fair processing notice of its sharing of Personal Data with the Finance Parties as set out in this Agreement stating that the Finance Parties will process such Personal Data and so may their agents and contractors in order to provide financial facilities to the Borrower.
24.8 The Borrower warrants, undertakes and agrees that:
(a) It has have a valid legal basis for the processing of such Personal Data and for transferring such Personal Data to the Finance Parties so that the Finance Parties may lawfully process the Personal Data in accordance with this Agreement;
(b) It has provided data subjects with a fair processing notice about its sharing of Personal Data as set out in this Agreement, such notice is clear, compliant with the Data Protection Laws and this Agreement and provides sufficient information to data subjects for them to understand what is happening to their Personal Data;
(c) all Personal Data that the Borrower transfers and any information in relation to such Personal Data that it provides to the Finance Parties is correct, complete and not misleading;
(d) it will delete Personal Data at the end of processing in accordance with its obligations under the Data Protection Laws; and
(e) as a data controller that is sharing Personal Data, the Borrower will assess the effectiveness of its data sharing under this Agreement no less than once per year during the term of this Agreement. The Borrower and the Finance Parties will then agree any changes to the sharing of Personal Data and to this Agreement that are necessary in order to facilitate the effectiveness of such sharing.
24.9 The following types of Personal Data will be shared between you and us during the term of this Agreement:
(a) names of customers and of individuals that work for you;
(b) contact details of customers and individuals, including addresses, phone numbers and email addresses;
(c) the amount of money owed by the Borrowers Customers; and
(d) details relating to customers’ accounts.
24.10 Sensitive/special categories of Personal Data (as defined in the Data Protection Laws) will not be shared between the Borrower and the Finance Parties. In the event that any information you are sending contains sensitive/special categories of personal data, you will ensure that you redact such sensitive/special categories of personal data from the information before sending it to the Finance Parties.
24.11 Individuals have the right to obtain certain information about the processing of their Personal Data known as a subject access request. The Finance Parties and the Borrower are separately responsible for dealing with subject access requests that are received. The Finance Parties and the Borrower each agree to provide reasonable assistance on request as is necessary to enable each other to comply with subject access requests and to respond to any other queries or complaints from data subjects.
24.12 If there is a serious Personal Data breach that affects the sharing of Personal Data between the Finance Parties and the Borrower and which could put either in breach of the Data Protection Laws, the Finance Parties and the Borrower will notify each other as soon as possible after either becomes aware and, in any event, within 1 Business Day of becoming aware of the Personal Data breach. The Finance Parties and the Borrower agree to provide reasonable assistance to each other on request as is necessary to facilitate the handling of such a Personal Data breach in a manner which is compliant with the Data Protection Laws.
24.13 The Borrower will indemnify the Finance Parties keep each indemnified against any cost, charge, damages, fines, expense or loss which they incur as a result of the Borrowers breach of any of the provisions of this clause 24.
25. GOVERNING LAW AND JURISDICTION
25.1 This Agreement and any dispute or claim arising out of or in connection with it shall be governed by and construed in accordance with the law of England and Wales.
25.2 Each party irrevocably agrees that, the courts of England and Wales shall have exclusive jurisdiction over any dispute or claim that arises out of, or in connection with this Agreement or its subject matter or formation.