Debt Terms and Conditions
1.1 These terms and conditions (the “Debt Terms”) set out the terms on which each User of the Debt Services uses such Services.
2. DEFINITIONS AND INTERPRETATION
2.1 Capitalised terms not otherwise defined herein shall have the meaning given in the other documents that make up the User Terms.
2.2 The following capitalised terms used herein shall have the following meanings:
Charged Assets: all assets listed in the Debenture that are secured against the Loan including but not limited to fixed charges, floating charges and mortgages.
Debenture: the security document(s) entered into by the Campaign Creator and each of the Lenders setting out the terms and conditions of the Loan and the assets secured against the Loan.
Interest Rate: the gross interest rate per annum that the Lender is willing to receive in return for the Investment Amounts.
Lender: a person who pledges an Investment Amount in respect of a Campaign.
Loan: the aggregate of the total Investment Amounts and the total interest that is to be paid on said Investment Amounts to the Lenders and Crowd2Fund.
Loan Agreement: means that loan agreement to be entered into pursuant to clause 5.10(a) and in the form as set out in the Schedule.
Personal Guarantee and Indemnity: the document entered into by a party and each of the Lenders whereby that party has agreed to guarantee and indemnify the Campaign Creator for the Loan.
Pledge Submission: the act of a Lender making an offer of an Investment Amount and Interest Rate in relation to a particular Campaign.
3. CATEGORISATION AND CERTIFICATION OF LENDERS
3.1 In accordance with the Financial Services and Markets Act 2000 (“FSMA”), Crowd2Fund classifies each Lender as a Certified High Net Worth Individual, a Sophisticated Lender or a Retail Client. It is the Lender’s responsibility to self-certify where appropriate and applicable and to do so truthfully and completely.
3.2 Every Lender will be required to fill out a risk understanding questionnaire before creating an Account. Based on the answers given in this questionnaire it may be necessary in some cases to exclude one or more Retail Investors from access to some or all of the Debt Services.
3.3 In respect of its regulated activities, Crowd2Fund is authorised and regulated by the FCA (Under reference number 623683).
4. THE WALLET
4.1 In order to make a pledge in a Campaign, a Lender must ensure that its Wallet contains funds at least equal to the Investment Amount.
4.2 When a Lender makes a pledge to a Campaign, the Investment Amount shall be deducted from the available funds in its Wallet and transferred to the Crowd2Fund Escrow Wallet.
4.3 In the event that the Target Amount is met, the Investment Amount shall be transferred from the Crowd2Fund Escrow Wallet to the Campaign Creator’s Wallet.
4.4 In the event that
- (a) the Target Amount is not met prior to the Long-Stop Date; or
- (b) any of the events in clause 6.5 occur, the Investment Amount shall be credited from the Crowd2Fund Escrow Wallet to the Lender’s Wallet.
5. LENDING PROCESS
5.1 All Users acknowledge, agree and undertake to represent only themselves or the company that they represent.
5.2 After completing the registration process and creating an Account, a Campaign Creator who is looking to create a Debt Campaign must complete the business profile and business plan sections of their dashboard on the Website before submitting a Campaign Description to Crowd2Fund.
5.3 To submit a Campaign Description, the Campaign Creator shall supply as a minimum:
- (a) the amount that the Campaign Creator wishes to raise;
- (b) the term of the Loan;
- (c) whether the Loan will be guaranteed and if so, details of the guarantor including but not limited to:
- (i) driving licence number; and
- (ii) address history;
- (d) whether the Loan will be secured and if so, what the security will be;
- (e) information relating to any existing loans or credit agreements that the Campaign Creator and its guarantor (if applicable) currently has;
- (f) its bank sort code;
- (g) any details needed to set up a direct debit; and
- (h) any other information that is reasonably required by Crowd2Fund to enable them to approve a Campaign Description.
5.4 A Campaign Creator may request when submitting a Campaign Description that the Campaign can be overfunded. If Crowd2Fund accepts this request, Crowd2Fund shall display a prominent disclaimer notice on the Campaign Description at the start of and throughout the Campaign. Neither Crowd2Fund nor the Campaign Creator shall be liable for any damages or loss incurred relating to this clause or for any overfunded Campaign.
5.5 After the Campaign Description has been submitted by the Campaign Creator, Crowd2Fund will review the information provided and, in its sole and absolute discretion, will either decide to approve, amend or reject the Campaign Creator’s Campaign Description for publication on the Website.
5.6 A Campaign will only be eligible for approval if the following requirements are satisfied:
(a) the Campaign Creator is a company limited by shares, a public limited company, a limited liability partnership, a sole trader or an (unlimited) partnership;
(b) the Campaign Creator has a UK bank account to facilitate payments;
(c) the business of the Campaign Creator does not involve lending money or leasing assets held on its own balance sheet;
(d) the Campaign Creator is in business with the intention of making a profit and is not a not-for-profit or charitable business; and
(e) the Campaign Creator has actively traded consistently for the period of two years prior to the date of submission of the Campaign Description and is not currently dormant.
5.7 Campaign Creators agree to use their best endeavours to run their business in accordance with what has been submitted in the Campaign Description.
5.8 If the Campaign Description is approved by Crowd2Fund, the Campaign shall start on the date of approval and Lenders may start making Pledge Submissions. By making Pledge Submissions, each Lender irrevocably agrees to enter into the Loan Agreement.
5.9 The Campaign shall end on the Campaign Closing Date whereupon the Campaign Creator shall have the option, if the Target Amount has been reached, to accept some or all of the Pledge Submissions made by Lenders and complete the investment in accordance with clause 5.10. For the avoidance of doubt and subject to the rest of the User Terms, nothing in these Debt Terms shall prevent a Campaign Creator from cancelling a Campaign at any time prior to the Campaign Closing Date.
5.10 If the Campaign reaches the Target Amount prior to the Campaign Closing Date and the Campaign Creator accepts the aggregated Pledge Submissions:
- (a) a binding agreement in respect of each Pledge Submission shall be executed by each of the relevant Lenders and the Campaign Creator (the “Loan Agreement”). The Loan Agreement shall take the form as set out in Schedule 1 save for any amendments that are stated in the Campaign Description. In addition to the rights granted to Crowd2Fund pursuant to clause 7.6 of the Outline Terms, each Lender and the Campaign Creator authorises Crowd2Fund to act as an agent for them to execute the Loan Agreement on their behalf. Pursuant to the Loan Agreement, the Lender shall lend to the Campaign Creator and the Campaign Creator shall borrow on the terms of the Loan Agreement the amount of the relevant Pledge Submission;
- (b) where applicable, the Debenture and/or the Personal Guarantee and Indemnity shall be signed by the relevant parties;
- (c) the Investment Amounts shall be transferred from the Crowd2Fund Escrow Wallet to the Business Wallet pursuant to clause 4.3; and
- (d) the Campaign Creator shall procure that all relevant administration is completed and that (if applicable in respect of secured debt) all necessary forms and resolutions are filed at Companies House. Crowd2Fund may also make the relevant filings at Companies House and the Campaign Creator expressly acknowledges and agrees that by entering into the Loan Agreement, it gives Crowd2Fund irrevocable consent to make such filings. For the avoidance of doubt, Crowd2Fund shall not be liable if the filings are not made at Companies House in accordance with the Companies Act 2006 and all liability shall rest with the Campaign Creator.
6.1 Lenders acknowledge that when Crowd2Fund approves a Campaign Description, it does so in its capacity of operating an electronic system in relation to lending. Lenders both acknowledge and agree that Crowd2Fund’s approval of a Campaign Description is not an approval of the Campaign Description in general, and that no inference shall be made to the same.
6.2 Lenders can view current Campaigns by navigating to the “Opportunities” page of the Website when they are logged in to the Website.
6.3 If a Lender decides to make a pledge to a Campaign, it must already have transferred sufficient funds into its Wallet before pledging the Investment Amount. By making a Pledge Submission, the Lender irrevocably agrees that (in the event that the pledge is accepted by the Campaign Creator as detailed herein) any Loan created shall be on the terms of the Loan Agreement which shall be binding in its entirety on the Lender.
6.4 When a Lender has made a Pledge Submission to a live Campaign, it may make further Pledge Submissions. A Lender cannot decrease any Investment Amount already pledged. If a Lender chooses make further Pledge Submissions, it shall repeat the pledge process.
6.5 After a Lender has made a Pledge Submission to a Campaign, it will be non-refundable save for when:
- (a) the Campaign is unsuccessful by reason of not meeting the Target Amount; or
- (b) the Campaign Creator, in its sole and absolute discretion, rejects the entirety of the Pledge Submissions made by all Lenders;
- (c) Crowd2Fund cancels the Campaign or the Investment Amount, in which case the Lender’s funds will be transferred back to the Lender’s Wallet from the Crowd2Fund Escrow Wallet.
6.6 If the Campaign reaches the Target Amount and the Campaign Creator accepts all of the Pledge Submissions, the aggregate Investment Amounts shall be transferred to the Campaign Creator’s Wallet on or around the date that the Loan Agreement is executed.
6.7 Any third party charges (including without limitation, the MangoPay fee for any funds transferred into or out of a Wallet) or transaction fees will be charged to the Lender in addition to any Investment Amounts pledged. Any credit card fee incurred for transferring funds to a Wallet shall be incurred immediately upon the money being credited to the Wallet and the Lender shall be notified of these charges before making such transfer.
6.8 A Campaign Creator cannot, at any time it has a Crowd2Fund Account, be a Lender.
7.1 The Campaign Creator agrees to repay the Loan in accordance with the Loan Agreement.
7.2 The Campaign Creator acknowledges and agrees that failure to maintain the repayments on the Loan may result in:
- (a) the total cost of the debt increasing;
- (b) default charges or extra interest being levied against the Campaign Creator;
- (c) impaired credit ratings; and/or
- (d) legal proceedings and the associated costs of such proceedings being brought against the Campaign Creator.
7.3 The Campaign Creator may if it so chooses, repay all (but not part) of the Loan back to the Lenders at an earlier date than prescribed in the Loan Agreement. If the Campaign Creator elects to pay the Loan back early, it will not be subject to an early repayment administration charge but must pay a full month’s interest for the month in which it decides to repay all of the Loan.
8. DEFAULT AND TERMINATION
8.1 If any one of the below events occur at any time, the Loan Agreement relating to the Debt Campaign shall immediately terminate and the remaining amounts outstanding on the Loan shall become immediately payable to the Lenders and/or Crowd2Fund (acting as agent on behalf of all the lenders):
- (a) The Campaign Creator or its guarantor (if applicable) fails to pay the Lender and/or Crowd2Fund any payment or repayment 90 days after that payment or repayment has become due;
- (b) The Campaign Creator has defaulted on a separate loan that was financed through the Crowd2Fund platform;
- (c) The Campaign Creator’s Account with Crowd2Fund has been terminated for any reason;
- (d) An order has been made to wind up the Campaign Creator;
- (e) The Campaign Creator has a liquidator, administrator, receiver or trustee appointed to it;
- (f) The Campaign Creator states in writing that it is unable to pay its debts as it falls due; or
- (g) The Campaign Creator enters into a compromise, arrangement or assignment with its creditors generally.
9.1 If the Loan has been secured as a charge against the Campaign Creator’s Charged Assets, that charge shall crystallise upon any of the events in clause 8.1 occurring or otherwise in accordance with the Debenture.
9.2 Upon the successful completion of any Debt Campaign, all Charged Assets shall be registered at Companies House by the Campaign Creator within the relevant timeframes prescribed by the Companies Act 2006. Crowd2Fund (or its nominee) may also register the Charged Assets at Companies House and the Campaign Creator expressly acknowledges and agrees that by entering into the Loan Agreement, it gives Crowd2Fund (or its nominee) irrevocable consent to file such Charged Assets. For the avoidance of doubt, Crowd2Fund (or its nominee) shall not be liable if the Charged Assets are not registered at Companies House in accordance with the Companies Act 2006 and all liability shall rest with the Campaign Creator.
9.3 All Charged Assets shall be registered in the name of [C2F Securities Ltd], who shall hold the Charged Assets on trust for the Lenders. Each Lender acknowledges and agrees that if it invests in a successful secured Debt Campaign that it shall sign a power of attorney in favour of [C2F Securities Ltd] to manage the Charged Assets.
9.4 If any of the crystallisation events in the Debenture or clause 8.1 occur, [C2F Securities Ltd] shall have the right, but not the obligation, to sell or assign the Charged Assets to a third party and distribute the proceeds to the Lenders pro-rata as against the amount of the Loan that they are due.
9.5 If for any reason [C2F Securities Ltd] cannot enforce the Loan Agreement and/or Debenture (either as trustee or agent for each Lender), each Lender shall have an equal right upon any default of the Campaign Creator to enforce the Debenture against any amount owing to him (pro-rated as against other Lenders).
9.6 If a Campaign Creator decides to use an individual’s home as a Charged Asset, both the Campaign Creator and the individual having its home secured against the Loan shall take note of the following statements:
- (a) CHECK THAT A MORTGAGE WILL MEET YOUR NEEDS IF YOU WANT TO MOVE OR SELL YOUR HOME OR YOU WANT YOUR FAMILY TO INHERIT IT. IF YOU ARE IN DOUBT, SEEK INDEPENDENT ADVICE;
- (b) YOUR HOME IS AT RISK IF YOU DO NOT KEEP UP REPAYMENTS ON A MORTGAGE OR OTHER LOAN SECURED ON IT; and
- (c) (IF THE LOAN IS BEING REPAID IN A CURRENCY OTHER THAN STERLING) THE STERLING EQUIVALENT OF YOUR LIABILITY UNDER A FOREIGN CURRENCY MORTGAGE MAY BE INCREASED BY EXCHANGE RATE MOVEMENT.
10. LOAN TRANSFER AND NOVATION
10.1 If the Campaign Creator defaults on the Loan, all the rights and obligations under the Loan Agreement shall automatically transfer by novation, to the extent that the Loan contains only unsecured debt, to C2F Securities Ltd (unless the Lender notifies Crowd2Fund otherwise).
10.2 The Campaign Creator shall not be entitled to transfer any of its rights and obligations under the Loan Agreement.
10.3 Each Lender may transfer by novation his or her right, title and interest in any Loan Agreement and all associated rights to any other eligible member that holds an Account with Crowd2Fund (who is the “New Lender”) and each Campaign Creator grants advance consent to the novation of any Loan pursuant to a Loan Agreement.
10.4 The Campaign Creator’s rights and obligations under a Loan Agreement that has been transferred shall not be adversely affected in any way whatsoever.
10.5 A transfer by novation shall be effected by:
- (a) the Lender giving written notice to Crowd2Fund that it wishes to novate its rights under a Loan Agreement to a New Lender. This is done by requesting a trade through the Exchange page on the Crowd2Fund site;
- (b) a novation notice substantially in the form as set out in Schedule 2 (the “Novation Notice”) being served on the Campaign Creator by Crowd2Fund; and
- (c) the Campaign Creator, the Lender and the New Lender entering into a novation agreement substantially in the form as set out Schedule 3 (the “Novation Agreement”).
10.6 In addition to the rights granted to Crowd2Fund under clause 7.6 of the Outline Terms, both the Novation Notice and the Novation Agreement may be executed by Crowd2Fund, acting as agent on behalf of the Campaign Creator, the Lender and the New Lender and this will have the same effect as if the Novation Notice and the Novation Agreement was signed by all parties in a hard single copy.
10.7 Crowd2Fund charges Lenders a fee of 1% of the sale price upon the execution of the Novation Notice and the Novation Agreement:
11. CROWD2FUND FEES
11.1 Crowd2Fund charge Campaign Creators of all successful Debt Campaigns that reach at least the Target Amount:
|5.00%||on the first||£50,000|
|Then;||4.50%||on the next||£50,001 - £100000|
|4.00%||on the next||£100001 - £200000|
|3.50%||on the next||£200,001 - £300,000|
|3.00%||on the next||£300,001 - £500,000|
|2.50%||on the next||£500,001 - £1,000,000|
11.2 Crowd2Fund will charge an annualised intermediary fee of 1% of the outstanding principal (the "Intermediary Services Fee"), which is payable monthly. Accordingly, the monthly rate charged will be:
((OP x 0.01) x (0.08333))
OP = the outstanding principal amount of the Loan from time to time. The monthly rate of the Intermediary Services Fee will be deducted from the Lender’s Wallet when each monthly repayment is received from the Campaign Creator (each Lender shall therefore receive their monthly repayment net of the Intermediary Services Fee). If a Campaign Creator misses a repayment, the Intermediary Services Fee relating to that repayment will not be deducted from the Lender’s Wallet until that repayment has been received. The Intermediary Services Fee covers our role in providing intermediary services in relation to the introduction between the Lender and the Campaign Creator. This fee does not cover the costs of administrating and facilitating the loan, nor our related credit analysis, which we carry out as part of our underwriting exercise, which are a no-cost added value arrangement only.
12. TAXATION AND INTEREST
12.1 For all repayments made in accordance with a Loan Agreement, the Campaign Creator shall, where applicable, deduct any and all relevant tax on interest at source and account for this to the relevant tax authority before making a repayment.
12.2 The Lender acknowledges and agrees that the gross taxable income received from each repayment pursuant to a Loan Agreement must be declared to the relevant tax authorities. For the avoidance of doubt, although Crowd2Fund processes each repayment so that the Lender receives the repayment less the Intermediary Services Fee and any other tax deducted at source, the Lender will, where applicable, have to declare the gross taxable income from each repayment as though no Intermediary Services Fee or other tax had been deducted.
12.3 The Interest Rate shall be the gross rate of interest on which tax is payable by the Lender when each repayment is made, subject to any deductions made in accordance with any tax legislation or tax authority.
12.4 Crowd2Fund shall provide each Lender who has entered into at least one Loan Agreement an annual statement that details the amount of taxable income earned in the prior year and the remaining amount of taxable income that is due to it in relation to each Loan Agreement entered into.
12.5 The Lender acknowledges and agrees that by entering into a Loan Agreement, it understands the inherent risks that arise from various taxation rules and legislation. A non-exhaustive list of the taxation risks of entering into a Loan Agreement can be found on Crowd2Fund’s FAQ page at www.crowd2fund.com/help.
13. ANTI-MONEY LAUNDERING
13.1 Crowd2Fund shall perform credit checks, ICO and ID verifications (via third party suppliers) on all Campaign Creators and Lenders who invest more than £2,000. Campaign Creators shall not receive any funds until all anti-money laundering checks have been performed on each Campaign.
14. DISCLAIMER AND LIABILITY
14.1 Crowd2Fund does not accept any responsibility for any return on investment stated by a Campaign Creator, whether in the Campaign Description or otherwise. In the event that a Campaign Description submitted by a Campaign Creator is deliberately misleading or unlawful, that Campaign shall be cancelled and any money pledged shall be immediately transferred from the Crowd2Fund Escrow Wallet back to the Lender’s respective Wallets.
14.2 Crowd2Fund’s due diligence into a Campaign Creator is limited only to the Campaign Description and ensuring that the company is in existence and registered at Companies House (if applicable). Crowd2Fund makes no warranty or representation and assumes no liability in respect of the Campaign Creator or the content of any Campaign Description and Lenders both acknowledge and agree that Crowd2Fund’s approval of a Campaign Description as a financial promotion is not an approval of the Campaign Description in general, and that no inference shall be made to the same.
14.3 Lenders acknowledge and agree that Crowd2Fund does not provide any advice or recommendations in relation to investments or loans.
14.4 Crowd2Fund is not liable for any damages or loss incurred relating to Campaigns. Both Campaign Creators and Lenders acknowledge and agree to release Crowd2Fund, its officers, employees, agents and successors from any legal claim, whether known or unknown, arising out of their use of the Website or any Campaign.
14.5 All dealings are solely between Campaign Creators and Lenders. Although Crowd2Fund is granted the authority to act as agent on behalf both Campaign Creators and Lenders, it is not obligated to get involved with any dispute between a Campaign Creator and Lenders in any and all circumstances.
15.1 Campaign Creators are advised not to take any action in reliance of a Campaign reaching the Target Amount until they have the ability to draw the funds from their Wallet.
15.2 Crowd2Fund reserves the right to cancel/reject a Pledge Submission from a Lender for any reason and at any time.
15.3 Crowd2Fund reserves the right to cancel, interrupt, suspend and remove a Campaign for any reason and at any time. Crowd2Fund shall not be liable for any damages as a result of any action taken under this clause.
15.4 Save for as set out in these Debt Terms, nothing in these Debt Terms is intended to or shall be deemed to, establish any partnership or joint venture between any party or constitute any party the agent of another party.
15.5 If a Campaign Creator or Lender has any questions regarding a Debt Campaign, it may view our Frequently Asked Questions page or alternatively contact us on 0203 735 5690 and firstname.lastname@example.org.
Schedule 1 – Loan Agreement
1.1 This Loan Agreement sets out the terms on which a Lender lends an Investment Amount to a Campaign Creator in accordance with the Debt Terms.
1.2 Pursuant to clause 5.7 of the Debt Terms, when a Lender makes a Pledge Submission, he simultaneously irrevocably agrees to be bound by this Loan Agreement.
1.3 Specific terms relating to repayment details and other information that was included in the Campaign Description and is to be incorporated into this Loan Agreement are set out in Appendix 2.
2. DEFINITIONS AND INTERPRETATION
2.1 Capitalised terms not otherwise defined herein shall have the meaning given in the other documents that make up the User Terms.
The following definitions apply in this Loan Agreement.
Borrowed Money: any Indebtedness the Campaign Creator owes as a result of:
- (a) borrowing or raising money (with or without security), including any premium and any capitalised interest on that money;
- (b) any bond, note, loan stock, debenture, commercial paper or similar instrument;
- (c) any acceptance credit facility or dematerialised equivalent, bill-discounting, note purchase or documentary credit facilities;
- (d) monies raised by selling, assigning or discounting receivables or other financial assets on terms that recourse may be had to the Campaign Creator if those receivables or financial assets are not paid when due;
- (e) any deferred payment for assets or services acquired, other than trade credit that is given in the ordinary course of trading and which does not involve any deferred payment of any amount for more than 60 days;
- (f) any rental or hire charges under finance leases (whether for land, machinery, equipment or otherwise);
- (g) any counter-indemnity obligation in respect of any guarantee, bond, indemnity, standby letter of credit or other instrument issued by a third party in connection with the Campaign Creator's performance of contracts;
- (h) any other transaction that has the commercial effect of borrowing (including any forward sale or purchase agreement and any liabilities which are not shown as borrowed money on the Campaign Creator's balance sheet because they are contingent, conditional or otherwise);
- (i) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and when calculating the value of any derivative transaction, only the mark to market value shall be taken into account); and
- (j) any guarantee, counter-indemnity or other assurances against financial loss that the Campaign Creator has given for any of the items referred to in paragraphs (a) to (i) of this definition incurred by any person.
When calculating Borrowed Money, no liability shall be taken into account more than once.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Crowd2Fund: means Crowd2Fund Limited, a private company limited by shares registered in England and Wales under registration number 08472687 and whose registered address is at 242 Acklam Road, London, W10 5JJ.
Event of Default: any event or circumstance listed in clause 12.1 to clause 12.15.
Facility: the loan monies made available under the Loan Agreement.
Finance Document: the Loan Agreement and, where applicable, the Security Document and/or the Personal Guarantee and Indemnity.
Indebtedness: any obligation to pay or repay money, present or future, whether actual or contingent, sole or joint and any guarantee or indemnity of any of those obligations.
Loan: the principal amount of the loan made or to be made by the Lender to the Campaign Creator under the Loan Agreement or (as the context requires) the principal amount outstanding for the time being of that loan.
Potential Event of Default: any event or circumstance specified in clause 12.1 to clause 12.15 that would, on the giving of notice, expiry of any grace period or making of any determination under the Finance Documents, or satisfaction of any other condition (or any combination thereof), become an Event of Default.
Repayment Instalment: each scheduled instalment for the repayment of the Loan(s) pursuant to the Repayment Table.
Repayment Table: the schedule of payments as set out in Appendix 2.
Security: any mortgage, charge (whether fixed or floating, legal or equitable), pledge, lien, assignment by way of security or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
Security Document: he Debenture in the agreed form, executed or to be executed by the Campaign Creator and C2F Securities Ltd.
Sterling and £: the lawful currency of the UK.
User Terms: the terms and conditions (including, but not limited to, the privacy, equity, debt, rewards, donation, revenue share and website terms) of Crowd2Fund Limited, a private company limited by shares registered in England and Wales under registration number 08472687 and whose registered address is at 242 Acklam Road, London, W10 5JJ.
In this Loan Agreement:
- (a) clause, Appendix and paragraph headings shall not affect the interpretation of this Loan Agreement;
- (b) 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;
- (c) unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular;
- (d) unless the context otherwise requires, a reference to one gender shall include a reference to the other genders;
- (e) a reference to a party shall include that party's successors, permitted assigns and permitted transferees;
- (f) a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time;
- (g) a reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision;
- (h) a reference to a time of day is to London time;
- (i) a reference to writing or written includes fax and e-mail;
- (j) an obligation on a party not to do something includes an obligation not to allow that thing to be done;
- (k) a reference to a Finance Document (or any provision of it) or to any other agreement or document referred to in any Finance Document is a reference to that Finance Document, that provision or such other agreement or document as amended (in each case, other than in breach of the provisions of the Loan Agreement) from time to time;
- (l) unless the context otherwise requires, a reference to a clause or Appendix is to a clause of, or Appendix to, this Loan Agreement and a reference to a paragraph is to a paragraph of the relevant Appendix;
- (m) 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;
- (n) a reference to an amendment includes a novation, re-enactment, supplement or variation (and amended shall be construed accordingly);
- (o) a reference to assets includes present and future properties, undertakings, revenues, rights and benefits of every description;
- (p) a reference to an authorisation includes an approval, authorisation, consent, exemption, filing, licence, notarisation, registration and resolution;
- (q) a reference to a certified copy of a document means a copy certified to be a true, complete and up-to-date copy of the original document, in writing and signed by a director or the secretary of the party delivering the document;
- (r) a reference to continuing in relation to an Event of Default means an Event of Default that has not been waived;
- (s) a reference to determines or determined means, unless the contrary is indicated, a determination made at the discretion of the person making it;
- (t) a reference to a disposal of any asset, undertaking or business includes a sale, lease, licence, transfer, loan or other disposal by a person of that asset, undertaking or business (whether by a voluntary or involuntary single transaction or series of transactions); and
- (u) 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.
2.4 The Appendices forms part of the Loan Agreement and shall have effect as if set out in full in the body of the Loan Agreement. Any reference to the Loan Agreement includes the Appendices.
2.5 Capitalised terms not otherwise defined herein shall have the meaning given in the User Terms.
3.1 The Campaign Creator shall use all money borrowed under this Loan Agreement for the purpose as set out in the Campaign Creator’s Campaign Description.
3.2 The Lender is not obliged to monitor or verify how any amount advanced under this Loan Agreement is used.
4.1 Subject to clause 5, the Campaign Creator shall utilise the Facility on or around the execution of the Loan Agreement. The Loan shall be transferred to the Campaign Creator’s Business Wallet from the Crowd2Fund Escrow Wallet on or around the date of the execution of the Loan Agreement.
5. CONDITIONS PRECEDENT
5.1 This clause 5 is inserted solely for the benefit of the Lender.
5.2 Save for where Crowd2Fund waives the requirement by giving written notice to the Campaign Creator, the Campaign Creator may not transfer the Loan from its Business Wallet to its bank account unless Crowd2Fund has received all the documents and evidence specified in Appendix 1.
5.3 The Lender's obligation to make the Loan is subject to the further conditions precedent that, on the date of the execution of this Loan Agreement:
- (a) the representations and warranties in clause 10 are true and correct in all material respects and will be true and correct in all material respects immediately after the Lender has made the proposed Loan; and
- (b) no Event of Default or Potential Event of Default is continuing or would result from the proposed Loan.
6.1 The Campaign Creator shall pay interest on the Loan at the rate stated in Appendix 2.
6.2 Interest shall accrue daily and shall be payable with each Repayment Instalment.
6.3 If the Campaign Creator does not pay a Repayment Instalment on or before the relevant repayment date as set out in the Repayment Table, it may be subject to a late repayment charge of 15% of that Repayment Instalment.
7.1 The Crowd2Fund Fees shall be deducted automatically upon the execution of the Loan Agreement.
7.2 The Campaign Creator 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 the Lender against any losses or liabilities that it may incur as a result of any delay or omission by the Campaign Creator in paying any such duties or taxes.
8.1 The Campaign Creator shall repay the Loan in full in the timeframe as set out in the Repayment Table and shall set up a direct debit to transfer the repayments to its Business Wallet.
8.2 If one of the Events of Default in clause 12 occur, the guarantor (where applicable) shall become jointly and severally liable with the Campaign Creator for the repayment of the Loan.
9.1 All payments made by the Campaign Creator under the Finance Documents shall be in Sterling and made by transferring to its Business Wallet the requisite funds via direct debit. The payment itself will automatically be taken, transferred and credited to the Lender’s Wallet on the dates specified in the Repayment Table.
9.2 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.
9.3 All payments made by the Campaign Creator under the Finance Documents shall be made in full, without set-off, counterclaim or condition, and free and clear of, and without any deduction or withholding, provided that, if the Campaign Creator is required by law or regulation to make such deduction or withholding, it shall:
- (a) ensure that the 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 deduction or withholding;
- (c) furnish to the Lender, within the period for payment permitted by the relevant law, either:
- (i) an official receipt of the relevant taxation authorities concerned on payment 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 deduction or withholding; and
- (d) pay to the Lender such additional amount as is necessary to ensure that the net full amount received by the Lender after the required deduction or withholding is equal to the amount that the Lender would have received had no such deduction or withholding been made.
10. REPRESENTATIONS AND WARRANTIES
Save for where disclosed in the Campaign Description, the Campaign Creator represents and warrants to the Lender on the date of this Loan Agreement:
- (a) is a duly incorporated limited liability company validly existing under the laws of its jurisdiction of incorporation; and
- (b) has the power to own its assets and carry on its business as it is being conducted.
10.2 It has the power and authority to enter into, deliver and perform, and has taken all necessary action to authorise its entry into, deliver and perform the obligations set out in the Finance Documents and the transactions contemplated by them. No limit on its powers will be exceeded as a result of the borrowing or grant of the Security (if applicable) contemplated by the Finance Documents.
10.3 The entry into and performance by it of, and the transactions contemplated by the Finance Documents, do not and will not contravene or conflict with:
- (a) its constitutional documents;
- (b) any agreement or instrument binding on it or its assets or constitute a default or termination event (however described) under any such agreement or instrument; or
- (c) any law or regulation or judicial or official order, applicable to it.
10.4 It has obtained all required authorisations to enable it to enter into, exercise its rights and comply with its obligations in the Finance Documents and to make them admissible in evidence in its jurisdiction of incorporation. All such authorisations are in full force and effect.
10.5 Its obligations under Finance Documents are legal, valid, binding and enforceable in accordance with their terms.
10.6 It is not necessary to file, record or enroll any Finance Document (other than the registration of the Security Document under the Companies Act 2006 (if applicable) and, in the case of real property registration at HM Land Registry with any court or other authority or pay any stamp, registration or similar taxes relating to any Finance Document or the transactions contemplated by any Finance Document.
10.7 No Event of Default or Potential Event of Default has occurred or is continuing, or is reasonably likely to result from making the Loan or the entry into, the performance of, or any transaction contemplated by the Finance Documents.
10.8 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 Campaign Creator 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.
10.9 No litigation, arbitration or administrative proceedings are taking place, pending or, to the Campaign Creator's knowledge, threatened against it, any of its directors or any of its assets, which might reasonably be expected to have a material adverse effect on its business, assets or condition, or its ability to perform its obligations under the Finance Documents.
10.10 If applicable, its audited financial statements for its year end have been prepared in accordance with consistently applied accounting principles, standards and practices generally accepted in the UK and present a true and fair view of its financial condition and operations during the relevant accounting period and were approved by the Campaign Creator's directors in compliance with section 393 of the Companies Act 2006.
10.11 The information, in written or electronic format, supplied by, or on its behalf, to the Lender (including, without limitation, the Campaign Description) in connection with the Facility and the Finance Documents 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; and
- (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 Campaign Creator to the Lender prior to the execution of the Loan Agreement.
10.12 If applicable, the Security Document creates (or once entered into, will create):
- (a) valid, legally binding and enforceable Security for the obligations expressed to be secured by it; and
- (b) subject to registration under section 859A of the Companies Act 2006 and, in the case of real property registration at HM Land Registry, perfected Security over the assets expressed to be subject to security in it,
in favour of C2F Securities Ltd as nominee for the each of the Lenders, having the priority and ranking expressed to be created in the Security Document and ranking ahead of all (if any) Security and rights of third parties except those preferred by law.
10.13 Each of the representations and warranties in this clause 10 is deemed to be repeated by the Campaign Creator on:
- (a) the date of the execution of the Loan Agreement;
- (b) the date that the Loan is actually transferred from the Business Wallet to the Campaign Creator’s bank account; and
- (c) each date immediately succeeding the date on which interest is paid under the Loan Agreement,
by reference to the facts and circumstances existing on each such date.
The Campaign Creator covenants with the Lender that, as from the date of this Loan Agreement until all its liabilities under the Finance Documents have been discharged:
11.1 It will deliver to the Crowd2Fund all the information required by the User Terms.
11.2 It will promptly, after becoming aware of them, notify Crowd2Fund of any litigation, arbitration or administrative proceedings or claim of the kind described in clause 10.9. Crowd2Fund will then notify the Lender(s).
11.3 It will promptly obtain all consents or 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.
11.4 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.
11.5 It will comply, in all respect, with all laws, if failure to do so has or is likely to have a material adverse effect on its business, assets or condition, or its ability to perform its obligations under the Loan Agreement.
11.6 It will notify the Crowd2Fund 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. Crowd2Fund shall then notify the Lender(s).
11.7 It will carry on and conduct its business in a proper and efficient manner and will not make any substantial change to the general nature or scope of its business as carried on at the date of the Loan Agreement or as detailed in the Campaign Description.
11.8 It will not:
- (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 its receivables on recourse terms; or
- (d) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
- (e) enter into any other preferential arrangement having a similar effect,
in circumstances where the arrangement or transaction is entered into primarily as a method of raising Borrowed Money or of financing the acquisition of an asset.
11.9 It will not sell, assign, lease, transfer or otherwise dispose of in any manner (or purport to do so) all or any part of, or any interest in, its assets other than:
- (a) trading stock in the ordinary course of its business; and
- (b) assets exchanged for other assets comparable or superior as to type, value and quality.
11.10 It will not incur or permit to subsist, any obligation for Borrowed Money.
12. EVENTS OF DEFAULT
Each of the events or circumstances set out in this clause 12 (other than clause 12.17) is an Event of Default.
12.1 The Campaign Creator fails to pay within 90 days of a Repayment Date any sum payable by it under any Finance Document, unless its failure to pay is caused solely by an administrative error or technical problem and payment is made within five (5) Business Days of its due date.
12.2 The Campaign Creator fails (other than by failing to pay), to comply with any provision of any Finance Document and such default is not remedied within five (5) Business Days of the earlier of:
- (a) the Lender and/or Crowd2Fund notifying the Campaign Creator of the default and the remedy required;
- (b) the Campaign Creator becoming aware of the default.
12.3 Any representation, warranty or statement made, repeated or deemed made by the Campaign Creator in, or pursuant to any Finance Document is (or proves to have been) incomplete, untrue, incorrect or misleading in any material respect when made, repeated or deemed made.
- (a) any Borrowed Money is not paid either when due or if later, within any originally applicable grace period (for the avoidance of doubt, this includes any loans that the Campaign Creator has made through the Crowd2Fund Website); or
- (b) any Borrowed Money becomes due, or capable or being declared due and payable prior to its stated maturity by reason of an event of default (howsoever described);
- (c) any commitment for Borrowed Money is cancelled or suspended by a creditor of the Campaign Creator by reason of an event of default (howsoever described); or
- (d) any creditor of the Campaign Creator becomes entitled to declare any Borrowed Money due and payable prior to its stated maturity by reason of an event of default (howsoever described).
12.5 The Campaign Creator stops or suspends payment of any of its debts, or is unable to, or admits in writing its inability to, pay its debts as they fall due.
12.6 The value of the Campaign Creator's assets is less than its liabilities (taking into account contingent and prospective liabilities).
12.7 A moratorium is declared in respect of any Indebtedness of the Campaign Creator.
12.8 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 Campaign Creator; 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 Campaign Creator or any of its assets; or
- (d) the enforcement of any Security over any assets of the Campaign Creator.
12.9 The Campaign Creator 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).
12.10 Any event occurs in relation to the Campaign Creator similar to those in clause 12.6 to clause 12.9 (inclusive) under the laws of any applicable jurisdiction.
12.11 A distress, attachment, execution, expropriation, sequestration or another analogous legal process is levied, enforced or sued on, or against, the Campaign Creator's assets.
12.12 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 due to the fault of the Campaign Creator.
12.13 The Campaign Creator repudiates or evidences an intention to repudiate any Finance Document.
12.14 The Campaign Creator suspends or ceases to carry on (or threatens to suspend or cease to carry on) all or a substantial part of its business.
12.15 Any event occurs (or circumstances exist) which, in the reasonable opinion of the Crowd2Fund, has or is likely to materially and adversely affect the Campaign Creator's ability to perform all or any of its obligations under, or otherwise comply with the terms of, any Finance Document.
12.16 The Campaign Creator’s Account with Crowd2Fund is terminated for any reason.
12.17 At any time after an Event of Default has occurred which is continuing, the Lender and/or Crowd2Fund (acting as agent under the authority of each of the Lenders) may, by notice to the Campaign Creator:
- (a) cancel all outstanding obligations of the Lender under the Loan Agreement whereupon they shall immediately be cancelled; and/or
- (b) declare that the Loan (and all accrued interest and all other amounts outstanding under the Finance Documents) is immediately due and payable, whereupon they shall become immediately due and payable; and/or
- (c) declare that the Loan be payable on demand, whereupon it shall become immediately payable on a written demand given by the Lender and/or Crowd2Fund;
- (d) automatically transfer (unless the Lender notifies Crowd2Fund otherwise), by novation, all the rights and obligations under the Loan Agreement, to the extent that the Loan contains only unsecured debt, to C2F Securities Ltd; and/or
- (e) declare the Security Document to be enforceable.
13. CALCULATIONS, ACCOUNTS AND CERTIFICATES
13.1 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.
13.2 The Lender shall maintain accounts evidencing the amounts owed to it by the Campaign Creator, in accordance with its usual practice. Entries in those accounts shall be prima facie evidence of the existence and amount of the Campaign Creator's obligations as recorded in them.
14. AMENDMENTS, WAIVERS AND CONSENTS AND REMEDIES
14.1 No amendment of any Finance Document shall be effective unless it is in writing and signed by, or on behalf of, each party to it (or its authorised representative or agent (including Crowd2Fund)).
14.2 A waiver of any right or remedy under any Finance Document or by law, or any consent given under any Finance Document, is only effective if given in writing by the waiving or consenting party and shall not be deemed a waiver of any other breach or default. It only applies in the circumstances for which it is given and shall not prevent the party giving it from subsequently relying on the relevant provision.
14.3 A failure or delay by a party to exercise any right or remedy provided under any Finance Document or by law shall not constitute a waiver of that or any other right or remedy, prevent or restrict any further exercise of that or any other right or remedy or constitute an election to affirm any Finance Document. No single or partial exercise of any right or remedy provided under any Finance Document or by law shall prevent or restrict the further exercise of that or any other right or remedy. No election to affirm any Finance Document by the Lender shall be effective unless it is in writing.
14.4 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.
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.
16.1 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.
16.2 No counterpart shall be effective until each party has executed at least one counterpart.
17. THIRD PARTY RIGHTS
17.1 Save for Crowd2Fund (where it has been duly authorised in whatever capacity), a person who is not a party to the Loan Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or enjoy the benefit of any term of the Loan Agreement. This does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
18.1 Any notice or other communication given to a party 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 or sent by fax or email; and
- (c) sent to an address, fax number or email address as notified between the Campaign Creator and the Lender(s) from time to time.
18.2 Any notice or other communication that the Lender gives to the Campaign Creator under or in connection with, any Finance Document 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;
- (c) if sent by fax, when received in legible form; and
- (d) if sent by email, at the time of transmission.
18.3 A notice or other communication given as described in clause 18.2(a), 18.2(c) or 18.2(d) 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.
18.4 Any notice or other communication given to the Lender shall be deemed to have been received only on actual receipt.
19. GOVERNING LAW AND JURISDICTION
19.1 The Loan Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
19.2 Each party irrevocably agrees that, subject as provided below, the courts of England and Wales shall have exclusive jurisdiction over any dispute or claim that arises out of, or in connection with the Loan Agreement or its subject matter or formation (including non-contractual disputes or claims).Go to top