LAST UPDATED: 24 AUGUST 2018
General terms relating to all users of the LendInvest website and/or platform.
Users of the Site and the Platform should, in particular, be aware of and read the disclosures and disclaimers set out in Clause 3 of these General Terms.
1.1 These General Terms apply to all users of the Site and/or the Platform.
1.4 These General Terms are supplemented by Addendums which apply depending on how you are investing or borrowing. Each Addendum describes the circumstances in which they are applicable to you, and therefore you should review each one to ensure that you are aware of when an Addendum applies to you.
These General Terms apply to all users of the Platform.
The Addendum entitled “RPA Addendum” applies to:
(a) all RPA Investors (being, in summary, persons investing via a Receivables Participation Agreement on or before 9th May 2017); and
(b) all RPA Borrowers who borrow via the Receivables Participation Agreement structure,
in addition to these General Terms, as further described in the RPA Addendum. The RPA Addendum is not relevant to persons investing via a Receivables Participation Agreement after 9th May 2017, who should refer instead to the terms of the relevant CIMA and Receivables Participation Agreement relating to their particular investment.
The Addendum entitled “Broker Addendum” applies to all users of the Site and/or the Platform that are Brokers, in addition to these General Terms, as further described in the Broker Addendum.
The Addendum entitled “Local Country Specific Addendum” provides country-specific terms which apply to you in addition to (and prevailing over) these General Terms if you are an RPA Investor or RPA Borrower established or otherwise resident outside of England and Wales. These country specific terms amend various provisions of this Agreement in order to allow for the law of your jurisdiction.
Where there is any conflict between these General Terms and any Addendum, the provisions of the relevant Addendum shall take precedence to the extent necessary to resolve such conflict.
2.1 In this Agreement, the following capitalized terms shall have the following meanings:
“Access Codes” means your username and password for your User Account
“Addendum” means those additional terms set out on the Site which are applicable to you and binding on you depending on your status, as further described in those Addendums
“Ancillary Documents” means any documentation which you may enter into from time to time in respect of investments, lending or borrowing on the Platform (or in respect of borrowing in respect of the Receivables Participation Agreement model, with RPA Sellers off the Platform), including any relevant Receivables Participation Agreements, RPA Loan Agreements, RPA Security Documents and any other related agreements
“Applicable Law” means all laws, regulations, rules and regulatory guidance which may be applicable from time to time
“Business Day” a day (other than a Saturday or a Sunday) on which commercial banks are open for general business in London
“CIMA” means the collective investment management agreement entered into between LendInvest Funds Management Ltd, an RPA Seller, LendInvest and the RPA Investor.
“Confidential Information” has the meaning given to it in Clause 7 of these General Terms
“FCA” means the Financial Conduct Authority
“General Terms” means these terms and conditions, excluding all Addendums
“Information” means any and all text, numbers, graphics, audio and still and moving images, whether in physical or electronic form, as contained on the Platform
“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, semi-conductor topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world
“LendInvest”, or “we”, “us” or “our” means LendInvest Limited, a limited liability company incorporated in England and Wales (registered number 08146929) and having its registered office at Two Fitzroy Place, 8 Mortimer Street, London W1T 3JJ
“Investor Account” means our segregated bank account held at a duly authorised UK credit institution for the purpose of, amongst others, holding and disbursing funds paid by RPA Investors
“Nominated Bank Account” means the bank account or building society account based in the UK and opened in your name which you have registered with us
“Platform” means the platform operated at https://secure.lendinvest.com
“Property” a specific property which secures a loan which is the subject of a Receivables Participation Agreement.
“Receivables Participation Agreement” means the standard form agreement relating to the purchase of a participation in receivables, which has been entered into between an RPA Seller and an RPA Investor
“RPA Addendum” means the Addendum entitled “RPA Addendum”
“RPA Borrower” has the meaning set out in the RPA Addendum
“RPA Investor” has the meaning set out in the RPA Addendum
“RPA Loan Agreement” has the meaning set out in the RPA Addendum
“RPA Loans” has the meaning set out in the RPA Addendum
“RPA Offer” and “RPA Offers” has the meaning set out in the RPA Addendum
“RPA Purchase” has the meaning set out in the RPA Addendum
“RPA Security Documents” has the meaning set out in the RPA Addendum
“RPA Seller” has the meaning set out in the RPA Addendum
“Site” means the LendInvest website
“User Account” means a data account in your name in our systems that will enable you to access and use the Platform
in accordance with the provisions of this Agreement
“User Information” means any information relating to you, that you provide to us
“Valuer” means a professionally qualified valuer who is a member of the Royal Institution of Chartered Surveyors, chosen by LendInvest
3. Disclosures and Disclaimers
3.1 The Site and the Platform are provided “as is” and “as available”. We make no representations or warranties of any kind, whether express, implied, statutory or otherwise regarding the Site or the Platform, including any warranty that the Site, the Platform or any part or use of it will be uninterrupted, error free or free of harmful components, or that any information provided to us or available on the Site or the Platform will be secure, accurate, timely, up-to-date, reliable or not otherwise lost or corrupted. Except to the extent prohibited by law, we exclude all warranties, including any implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, non-infringement, or quiet enjoyment, and any warranties arising out of any course of dealing or usage of trade.
3.2 You acknowledge that you understand and accept that the Site and Platform operate as a platform intended to facilitate the sale and purchase of participations in receivables in relation to RPA Loans, and only limited investigation of RPA Offers is undertaken by us. RPA Investors are responsible for making your own assessment of the viability of each RPA Offer. If you are in doubt or require any assistance in making such an assessment, you should consult professional advisors.
3.3 Save as set out to the contrary in the Local Country Specific Addendum, the Information on the Site and the Platform is not intended for use outside the UK, and no such Information constitutes an offer or solicitation to anyone in any jurisdiction where such an offer is not lawful or to anyone to whom it is unlawful to make such an offer or solicitation.
3.4 We shall not have any duty to disclose to you any Information which we receive in the course of providing the Site or the Platform.
3.5 You acknowledge and agree that we do not provide any investment, financial, accounting, taxation or legal advice in general, or in relation to any RPA Loan, RPA Offer, Receivables Participation Agreement or this Agreement, and that we are not authorised to do so. Nothing that we do or communicate to you should be construed as the provision of any such advice by us or any of our group companies. You are solely responsible for making your own independent appraisal and investigation of the risks of making an RPA Purchase Request or RPA Purchase and entering into a subsequent Receivables Participation Agreement or otherwise investing or borrowing on the Platform and you should obtain your own legal, accounting, tax and/or financial advice in relation to such matters, as you consider necessary.
4. User Accounts
4.1 In order to access the Platform, you must first apply for a User Account via the Site. You must provide us with all information requested during the application process and comply with all our identification and anti-money laundering requirements to enable us to comply with all Applicable Law.
4.2 We reserve the right, in our sole discretion, to refuse to register you as a member of the Platform for any reason and, in that event, are under no obligation to tell you the reason for such refusal.
4.3 Upon completion of the registration process, including satisfaction of any required verification checks and acceptance by us, we will open a User Account for you. Your User Account does not hold any funds but will show the amounts (if any) held by LendInvest for you in the Investor Account. If we approve your application for a User Account, you will be asked to choose your Access Codes. Each time you seek to access your User Account, we will check your identity by asking for your Access Codes. As long as your correct Access Codes are entered, you agree that we will be entitled to assume that you are the person giving instructions and you will be liable for those instructions until you notify us in accordance with Clause 4.4 of these General Terms. You must therefore keep the Access Codes secret and secure and make sure that they are not stored in a way that enables others to access them or impersonate you. In addition, if you disclose the Access Codes to any person, you will be responsible and liable for any access, use, misuse or disclosure of your Access Codes or your User Account by such person.
4.4 You must notify us immediately if you discover or suspect that the security of your Access Codes may have been breached. If we receive such a notification from you or determine ourselves that the security of your Access Codes may have been breached and we decide to take action based on that, you will not be able to access the Platform until measures have been taken to verify your identity.
4.5 Unless and until you tell us that you believe that someone else knows the Access Codes or can use your User Account by impersonating you:
(a) you will be responsible for any instruction which we receive and act on via your User Account, even if it was not given by you; and
(b) we will not be responsible for any unauthorised access to your User Account or the information available in it.
4.6 We can refuse to act on any instruction that we reasonably believe: (i) was unclear; or (ii) was not given by you; or (iii) might cause us to breach a legal or other duty; or (iv) if we believe the Platform is being used for an illegal purpose.
4.7 If at any time you select an option on the platform to make automated recurring periodic payments into your User Account, we will debit your selected amount from your Nominated Bank Account or payment card until the earlier to occur of (i) you notifying us that you no longer wish to make those periodic payments, (ii) our decision no longer to debit those periodic payments from your Nominated Bank Account or payment card, or (iii) our decision no longer to offer a facility to make automated recurring payments on the Platform. Following any of the aforementioned events, we will cease debiting payments from your Nominated Bank Account or from your payment card as soon as practicable, but it may be the case that one or more further payments are debited following that event. We may use third party payments processors to effect recurring periodic payments, including Stripe (https://stripe.com/about).
5. Intellectual Property Rights, Information and Platform Usage
5.1 All the Intellectual Property Rights in the Site and the Platform, and the Information on the Site and the Platform or provided by us to you (excluding your User Information), shall vest and remain vested in us or the third party owners. Except as expressly provided in this Agreement, you obtain no rights from us or our licensors, including any rights related in or related to any Intellectual Property Rights.
5.2 We grant you a limited, revocable, non-exclusive, non-sub licensable, non-transferable licence to access and use the Site and the Platform solely in accordance with this Agreement. You may not make a permanent copy of or reproduce any Information from the Site or the Platform in any form. You may not reproduce or incorporate any Information or content from the Site or the Platform into any other web site or material. You may only print, display or download temporary copies of the content to your own computer for your own use in accordance with this Agreement.
5.3 During and after the term of this Agreement, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or our licensors, any patent infringement or other Intellectual Property Rights infringement claim regarding the Site or the Platform.
5.4 You represent, warrant and undertake that none of your User Information will infringe the rights of any third party, including Intellectual Property Rights, privacy, publicity or other personal or proprietary rights; or will contain libellous, defamatory or otherwise unlawful material.
5.5 You undertake not to:
(a) use the Site or the Platform to:
(i) harvest or collect email addresses or other financial, personal or contact Information of other users of the Site or the Platform by electronic or other means for the purposes of sending unsolicited communications or inviting any person to invest outside the Platform;
(ii) to create a database (electronic or otherwise) that includes Information downloaded or otherwise obtained from the Site or the Platform except to the extent expressly permitted under this Agreement;
(iii) to transmit or re-circulate any Information obtained from the Site or the Platform to any third party except where expressly permitted by us or on the Platform;
(b) use the Site or the Platform in any unlawful manner or in any other manner that could damage, disable, overload or impair the Site or the Platform or the servers on which it is hosted;
(c) use automated scripts to collect Information from or otherwise interact with the Site or the Platform;
(d) upload, post, publish, display, transmit, share, store or otherwise make available on the Site or the Platform any Information that we may deem:
(i) to be misleading, harmful, threatening, unlawful, libellous, defamatory, infringing of any Intellectual Property Rights, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable; and/or
(ii) to contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; and/or
(iii) to be unsolicited or unauthorized advertising, solicitations, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes” or any other form of solicitation; and/or
(iv) to be the private information of any third party, including, without limitation, addresses, phone numbers, email addresses, National Insurance numbers or other identifiers, credit card numbers and/or debit card numbers; and/or
(v) to be an attempt to promote or market any goods or services for your own financial benefit;
(e) register on the Platform more than once or register on the Platform on behalf of an individual other than yourself, or register on the Platform on behalf of any entity without that entity’s prior written authorisation;
(f) impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age, your financial employment or personal circumstances or your affiliation with any person or entity;
(g) use or attempt to use another person’s User Account without authorization from us, or create a false identity in relation to the Platform;
(h) solicit personal information from anyone under 18 or solicit passwords or personally identifying Information for commercial or unlawful purposes; or
(i) use the Site or the Platform in such a way so as to remove the copyright or trade mark notice(s) from any copies of any Information made in accordance with this Agreement.
5.6 You are solely responsible for your User Information. You may not post, transmit, or share User Information on the Site or the Platform or otherwise that you did not create or that you do not have permission to display, publish or post. You understand and agree that we may, but are not obligated to, review the Site and the Platform and may delete or remove (without notice) any User Information in our sole and absolute discretion, for any reason or no reason, including without limitation User Information that in our own absolute discretion violates any provision(s) of this Agreement. You are solely responsible at your own cost and expense for creating backup copies and replacing any User Information.
5.8 You agree on demand to indemnify and hold each other user, us, our subsidiaries and affiliates (including each and every RPA Seller), and each of our directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable legal fees and expenses, and all registration fees and duties, arising out of or in connection with:
(a) any of your User Information;
(b) your RPA Purchases, RPA Purchase Requests or other use of the Platform;
(c) your conduct in connection with the Site or the Platform or with other users of the Site or the Platform; and
(d) any breach by you of this Agreement or the infringement of any Intellectual Property Rights or other rights of any third party.
5.9 You are solely responsible for your interactions with other users of the Site or the Platform. We reserve the right, but have no obligation, to monitor disputes between you and other users.
5.10 Subject to the provisions of this Agreement, we are not responsible for third party information downloaded or any User Information posted by other users to the Site or the Platform.
5.11 We welcome ‘links’ to the home page of the Site or the Platform, but not ‘deep linking’ by which we mean that you may not include a link to any page of the Platform that is not the home page. You must not display the contents of the Site or the Platform (or any page from it) or allow it to be displayed surrounded or framed or otherwise surrounded by material not originating from us without our prior written consent.
5.12 The Information provided via the Site and the Platform is intended solely for use by persons and organisations that meet the eligibility criteria set out in the relevant Addendums. The Site and the Platform is not intended for distribution to, or use by, any person or entity in any jurisdiction where such distribution or use would be contrary to Applicable Law.
6. Warranties and Representations
6.1 By agreeing to the terms of this Agreement, you represent and warrant to us that:
(a) notwithstanding our statutory obligations to individual investors to provide services with reasonable skill and care, you understand and acknowledge that neither we nor any of our or directors or employees make any representation or warranty, express or implied, as to the accuracy, completeness or reliability of any information which we provide to you from time to time;
(b) all details, information, representations, identification and other documentation that you provide to us from time to time is true and accurate in all material respects;
(c) you are entering into this Agreement and any relevant Ancillary Documents as principal and not as agent or on behalf of any third party;
(d) execution, delivery and performance of any aspect(s) of this Agreement will not violate any law, ordinance, charter, by-law or rule applicable to you, or any other agreement by which you are bound or by which any of your or their assets are affected;
(e) you will not send funds to the Investor Account other than by using the payment methods specified by us and, in each case, from your Nominated Bank Account and you will not request that funds be sent from the Investor Account other than to your Nominated Bank Account;
(f) you will not use the Information posted on the Site or the Platform for any purpose other than researching RPA Offers listed on the Platform and transacting on the Platform; and
(g) any User Information is complete, accurate and up to date, and will be updated by you as soon as possible after it later becoming incomplete, inaccurate or no longer up to date.
7.1 Information obtained by you via your User Account and Information disclosed directly to you by us (“Confidential Information”) shall be kept strictly confidential by you and used only for the purpose of interacting with and transacting on the Platform and shall not be disclosed by you in whole or in part, directly or indirectly to any third party, provided that:
(a) you may disclose such Information to any of your employees, solicitors and other professional advisors (if appropriate) for the purpose of working with you in connection with your decision to transact on the Platform, on the basis that you understand that you will be responsible for their use and handling of such Information; and
(b) Confidential Information shall not include Information that:
(i) was in your lawful possession before it was disclosed, without confidentiality restrictions;
(ii) you obtain from a third party on an unrestricted basis other than through breach of this Agreement or breach of any other obligation of confidentiality on you or the third party;
(iii) is developed by you independently of us and any Information received by you from us; or
(iv) you are required to disclose in accordance with Applicable Law, provided that you give us as much advance written notice of such requirement as is reasonably practicable in the circumstances.
8.1 You shall be liable to us for any loss or damage suffered by us as a result of your breach of this Agreement or for your negligence, fraud or wilful misconduct.
8.2 We shall only be liable to you for any loss or damage which results directly from our breach of this Agreement, negligence, fraud or wilful misconduct.
8.3 Whilst LendInvest takes every care to ensure that the standard of the Site and the Platform remains high and to maintain the continuity of it, you acknowledge and agree that the Internet is not always a stable medium, and errors, omissions, interruptions of service and delays may occur at any time. As a result, we do not accept any ongoing obligation or responsibility to operate the Site or the Platform to a certain level of availability (or any particular part of it).
8.4 Our liability to you in respect of any Ancillary Documents shall be limited to the amount paid by you in relation to any such Ancillary Documents.
8.5 We will not be liable for any indirect, incidental, special, punitive or consequential damages, loss of business, loss of profits, loss or corruption of data, loss of goodwill or reputation caused by any act or omission by us under any aspect of this Agreement.
8.6 Nothing in this Agreement shall limit any party’s liability for personal injury or death, or for any other liability which may not be excluded by Applicable Law. If you are unsure about which laws apply to you, you should seek independent advice.
8.7 No party shall be liable for any failure or delay in the performance of any obligation under this Agreement (except any payment obligation) by reason of any cause beyond that party’s reasonable control.
9. Investor Account
9.1 Your Unused Balance shall be held on trust for you by us in the Investor Account (along with other funds we hold on trust for others). In the event that interest is earned on any amounts held in the Investor Account (it being noted and agreed that no interest may be payable, or that interest may be waived), we shall apportion such interest amongst the persons on whose Unused Balance this interest has accrued by crediting their respective User Accounts accordingly on a monthly basis. We shall not keep any such interest earned for our own account. If no interest is payable on the Investor Account, we shall have no liability to pay to you any interest on your Unused Balance. If the interest rate on the Investor Account becomes negative, you agree that we are entitled to deduct sums from the Investor Account to cover that negative interest rate (on a pro-rata basis across all Unused Balances).
9.2 In the event that there has been no activity on your User Account for a period of at least 18 months, we shall be entitled to take such steps as we consider appropriate, which may include closing your User Account and transferring your Unused Balance from the Investor Account to your Nominated Bank Account or sending a cheque for the amount of the Unused Balance to your last-known residence or place of business (as the case may be).
9.3 You may request us to transfer your Unused Balance from the Investor Account to your Nominated Bank Account at any time.
10.1 We reserve the right, in our sole discretion, to terminate this Agreement and close your User Account immediately by notice in writing to you at any time and for any reason (and, in that event, are under no obligation to tell you the reason for such termination and closure), including (without limitation) if:
(a) you are in material breach of any term of this Agreement; and/or
(b) you breach any term of any Ancillary Document to which you are a party; and/or
(c) we suspect that you have used the Site or the Platform, or intend to use the Site or the Platform, for the purpose of an illegal activity.
10.2 You have termination rights relating to this Agreement, as set out in the Addendums. Each Addendum has specific termination rights which allow you to terminate each Addendum separately, without affecting any other Addendums which may apply to you from time to time.
10.3 On termination of this Agreement, any of your funds remaining in the Investor Account will, subject to any restriction under Applicable Law, be credited to your Nominated Bank Account or be paid by sending a cheque to your last-known residence or place of business (as the case may be). Any termination of this Agreement will not affect the validity or enforceability of any Ancillary Documents that you are then currently a party to.
10.4 Following termination of this Agreement, we will, on request, provide you with limited access to the Platform and your User Account for a period of 7 days to download any of your User Information. Upon the expiry of that 7 day period, your access to your User Account and the Platform will be terminated and we will have no obligation to store or provide you with access to any User Information or any Information relating to your activity on the Platform.
11.1 Except as otherwise expressly provided in this Agreement, any communication in writing may be given by post to the last known postal address that we hold for you or you hold for us, or email to the email address last notified by you to us or by us to you.
11.2 Communications sent:
(a) by post will be treated as received by you three Business Days after posting; and
(b) by email they will be treated as received immediately upon sending, so long as we do not receive notice of non-transmission or non-receipt.
11.3 We may also (where allowed to do so by Applicable Law) communicate with you by posting Information in your User Account or on the Site or the Platform, in which case the Information will be treated as received by you when it is posted by us.
11.4 Any communication given to us shall be deemed to have been received only on actual receipt by us.
12. Amendments to this Agreement
12.1 We may amend this Agreement by placing a new version of this Agreement on the Site, and where possible will give you notice that a change has been made. You should periodically check the Site for updates to this Agreement. You will be deemed to have accepted any updates or amendments to this Agreement if you continue to use the Site and/or the Platform after such updates or amendments have been placed on the Site.
12.2 We may make changes to this Agreement for any purpose that we consider reasonably necessary, including (without limitation):
(a) where we consider that a change will make this Agreement clearer and no less favourable to you; or
(b) to introduce new systems or technology; or
(c) to introduce new products or services; or
(d) to implement changes required by Applicable Law.
12.3 If you are not happy with any changes to this Agreement that may be made from time to time, you may terminate this Agreement in accordance with Clause 10 of these General Terms, but subject always to any restrictions on your rights to terminate this Agreement as set out in any Addendum.
13.1 The Agreement is supplied in English and all communications between all or any of us (including any communications or documentation passing between all or any of us before entering into any contract) will be in English.
13.2 Nothing in this Agreement is intended to confer any benefit on any person who is not a party to this Agreement, and no third party shall have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms. Notwithstanding the foregoing, each RPA Seller shall be entitled to enforce this Agreement against you where this Agreement purports to confer rights on them, and further we shall be entitled to enforce this Agreement on behalf of our affiliates or subsidiaries where this Agreement purports to confer rights on them. Any losses to our affiliates or subsidiaries shall be deemed to be losses of LendInvest and we may recover these as if they were incurred by LendInvest.
13.3 Except as may be expressly provided herein, nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, or to constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
13.4 If any part of this Agreement is found to be illegal, invalid or unenforceable by any court of competent jurisdiction or regulatory authority, the remainder shall continue in full force and effect. No single or partial exercise, or failure or delay in exercising any right, power or remedy by either you or us shall constitute a waiver by us of, or preclude any further exercise of, that or any right, power or remedy arising under this Agreement or otherwise.
13.5 The provisions of this Agreement are personal to you and you shall not be entitled to assign or transfer any of your rights or obligations under this Agreement.
13.6 We, and our successors and assigns, may assign any or all of our respective rights and obligations under this Agreement. Any LendInvest group company, and their successors and assigns, which has rights or benefits under this Agreement may assign any or all of their respective rights and obligations under this Agreement.
13.7 The records kept by us in the Platform shall be conclusive of the facts and matters they purport to record except where there is an obvious mistake.
13.8 The Agreement (including all non-contractual rights arising out of or in connection with it) is governed by English law.
13.9 Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the London Court of International Arbitration (the “LCIA”) under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be England. The governing law of this arbitration agreement shall be the substantive law of England.
14. Our details
14.1 LendInvest is incorporated in England and Wales (registered number 08146929) and has its registered office at Two Fitzroy Place, 8 Mortimer Street, London W1T 3JJ. LendInvest is authorised and regulated by the Financial Conduct Authority with firm number 658890.
Section A – Introduction
1.1 This Addendum applies if you are an RPA Investor or an RPA Borrower, or wish to become an RPA Borrower (as those terms are defined below in this Addendum). This Addendum applies only to RPA Investors having entered into a Receivables Purchase Agreement on or before 9th May 2017. Persons investing via a Receivables Participation Agreement after 9th May 2017 should refer instead to the terms of the relevant CIMA and Receivables Participation Agreement relating to their particular investment.
1.2 Section A of this Addendum applies to both actual and prospective RPA Investors and RPA Borrowers. Section B of this Addendum applies to you if you are an actual or prospective RPA Investor. Section C of this Addendum applies to you if you are an actual or prospective RPA Borrower.
1.3 This Addendum applies in addition to the General Terms. Where you enter into a Receivables Purchase Agreement, you agree that the terms of this Addendum and the General Terms shall be incorporated by reference into that Receivables Purchase Agreement, and shall have effect as if set out in full in the body of the Receivables Purchase Agreement.
2.1 The definitions set out below apply only in relation to this Addendum. Capitalised terms which are not defined below have the meaning given to them in Clause 2 of the General Terms:
“Receivables Participation Agreement” means the standard form agreement relating to the purchase of a participation in receivables that may be entered into from time to time between an RPA Seller and an RPA Investor
“RPA Borrower” means anyone who has, or wishes to, enter into an RPA Loan Agreement with an RPA Seller
“RPA Investor” means a user of the Platform who is authorised by us to use the Platform and has entered into certain investments from time to time on the Platform by entering into a Receivables Participation Agreement on or before 9th May 2017
“RPA Loan Agreement” means the loan agreement that may be entered into from time to time between an RPA Seller and an RPA Borrower (among others)
“RPA Loans” means any loans which are offered on the Platform for the purchase of participations of receivables in such loans
“RPA Offer” and “RPA Offers” means an offer by an RPA Seller to sell a participation in receivables relating to an RPA Loan Agreement through the Platform
“RPA Purchase” has the meaning given to it in Clause 6 of this Addendum
“RPA Purchase Request” has the meaning given to it in Clause 6 of this Addendum
“RPA Security Documents” means certain security arrangements entered into by an RPA Borrower from time to time in respect of an RPA Loan
“RPA Seller” means a lender within the LendInvest group or otherwise controlled by LendInvest wishing to sell participations in receivables under an RPA Loan
“Unused Balance” means money held for you in the Investor Account which you have not used for RPA Purchase Requests
Section B – RPA Investor Terms
3.1 You may not at any time be an RPA Investor in respect of any RPA Loan for which you are an RPA Borrower. Any breach of this requirement will be deemed to be a material breach not capable of remedy for which LendInvest shall be entitled to terminate this Agreement pursuant to Clause 10 of the General Terms.
4. General Terms Relating to RPA
4.1 The Platform facilitates the sale and purchase of participations in receivables between RPA Sellers and RPA Investors. The participations in receivables available to be purchased on the Platform relate to capital and interest that is payable by an RPA Borrower under an RPA Loan concluded off the Platform and made by an RPA Seller to an RPA Borrower, and which are the subject of an RPA Offer on the Platform. The terms of such RPA Loans are set out in loan agreements made between an RPA Seller and an RPA Borrower.
4.2 Participations in respect of an RPA Loan may be structured in two tranches. One tranche will offer payments of principal and income on a basis that is subordinated in some circumstances to the payments made to holders of the other tranche. The subordinated tranche will entitle its holders to a higher income rate. Further information on the tranches and the priority of payments in different circumstances is set out in the Receivables Participation Agreement and the CIMA. An RPA Investor will have the opportunity to select which tranche it wishes to purchase.
4.3 All RPA Investors agree to comply with the terms of this Agreement.
4.4 Our activities carried out in connection with the RPA Loan Agreements are not regulated by the FCA and none of Information on the Platform and/or provided by LendInvest needs to be, or has been, approved within the meaning of the Financial Services and Markets Act 2000. However, you acknowledge that making use of the Platform may expose you to a risk of losing monies paid out in connection with a Receivables Participation Agreement.
4.5 You agree that you will not make any contact with any RPA Borrower, RPA Seller, intermediary, solicitor or valuer concerning an RPA Offer, RPA Loan, RPA Loan Agreement, RPA Security Documents or Information concerning them or any Property on the Platform (other than your own solicitor or other professional advisers) without our prior written consent.
4.6 You must promptly notify us if you receive Information from, or you are otherwise contacted by, any person in relation to a particular RPA Loan, RPA Offer, Property, RPA Loan Agreement or RPA Security Documents outside the Platform (other than your own solicitor or other professional advisers), or you have a pre-existing relationship with the RPA Borrower, RPA Seller, or any intermediary, solicitor, law firm, or valuer which you are aware is involved. If any person makes, or attempts to make, contact with you regarding such documents then you must direct them to contact us.
5.1 The performance of each RPA Borrower’s obligations to the RPA Seller under the RPA Loan Agreement will be secured by the RPA Security Documents entered into between either (i) the RPA Borrower and the RPA Seller (or another LendInvest entity who will hold the security for the benefit of the RPA Seller) or (ii) between one or more third parties (providing either guarantees or third party security) and the RPA Seller (or another LendInvest entity who will hold such guarantees or third party security for the benefit of the RPA Seller) as appropriate.
5.2 If the RPA Borrower misses a payment or only partially pays the amount due to the RPA Seller under the RPA Loan Agreement, the RPA Seller (or LendInvest on its behalf) shall, at its discretion, be responsible for collection and enforcement in respect of the receivables, including enforcement of the relevant RPA Security Documents as necessary and subject to the terms of the Receivables Participation Agreement in respect of the underlying RPA Loan. If the RPA Seller (or LendInvest on behalf of the RPA Seller) enforces the security created by the RPA Security Documents, any proceeds received or recovered by the RPA Seller (or by LendInvest on its behalf) will be held on trust by the RPA Seller and/or LendInvest (as the case may be) to be applied in accordance with the relevant Receivables Participation Agreement and any amounts which are due to be paid to the RPA Investors shall be transferred to the Investor Account.
6. RPA Purchases – General
6.1 We shall not be responsible for, and do not provide advice to you on, or confirmation in respect of, the suitability of any RPA Offer for you or any purpose for which you make an RPA Purchase Request. You should consider carefully the terms of an RPA Offer before making an RPA Purchase Request.
6.2 As an RPA Investor, you acknowledge and agree that:
(a) you have read and understood the terms and details of the RPA Offer in relation to which you are making the RPA Purchase Request, including the Receivables Participation Agreement;
(b) our decision to publish details of the RPA Offer on the Platform does not constitute any approval or endorsement of the RPA Offer or any representation by us that the details of the RPA Offer accurately reflect the risks associated with the RPA Offer;
(c) we do not warrant that use of any of the documents supplied as part of the Platform including, without limitation to the generality of the foregoing, any Receivables Participation Agreement are suitable or appropriate for your needs and you must take your own independent legal and other advice on the terms of such documents;
(d) you, as an RPA Investor, choose the amount of your RPA Purchase, which tranche of Receivables you wish to acquire, the rate of interest you wish to receive and over what term. You should specify these preferences in your RPA Purchase Request;
(e) expected bad debt estimates on the Site are provided on an ‘as is’ basis for information purposes and general guidance only and we do not warrant their accuracy or reliability; and
(f) the relevant RPA Seller may (without responsibility to you): (i) exercise or refrain from exercising any or all of the rights, powers and discretions arising under or in connection with the relevant RPA Loan Agreement and/or the RPA Security; (ii) agree to any variation or waiver of the terms of the relevant RPA Loan Agreement and/or the RPA Security applicable to the RPA Loan Agreement; and (iii) perform any other acts under the RPA Loan Agreement and/or the RPA Security in its discretion as it sees fit.
7. Making an RPA Purchase – Receivables Participation Agreements
7.1 Subject to the RPA Borrower making the relevant payment under the relevant RPA Loan Agreement to the relevant RPA Seller (or to LendInvest on its behalf), LendInvest will determine the how much of the amount so collected is to be paid to RPA Investors in accordance with the relevant Receivables Participation Agreement and will pay an amount equal to the amount so determined into the Investor Account as soon as reasonably practicable after receipt and in the meantime hold such amount so determined on trust pending payment into such account. The name of the account shall make it clear that the account is held for the benefit of the RPA Investors and that the proceeds of the accounts are held on trust for the benefit of the RPA Investors and should not be paid out to general creditors of the RPA Seller in the event of its insolvency.
7.2 Typically, any capital repayments due under the RPA Loan Agreement will be paid to the Investor Account and credited to your User Account balance within 3 Business Days of receipt from the RPA Borrower. Any interest repayments will be paid to the Investor Account and credited to your User Account balance on the first Business Day after each month end (pro rata for the first and last month) and in accordance with the terms of the relevant Receivables Participation Agreement.
7.3 You acknowledge and agree that the RPA Seller shall not be obliged to pay all or any part of the amounts due to you under the Receivables Participation Agreement unless and until it receives corresponding sums from the RPA Borrower and such sums have become payable to you under the relevant Receivables Purchase Agreement. Entitlements to payments will vary as between RPA Investors holding different tranches.
7.4 You further agree and acknowledge that you have no right of recourse against the RPA Seller or the RPA Borrower in the event of the RPA Borrower failing to fulfil its obligations under the RPA Loan Agreement.
7.5 It is possible that the proceeds (if any) recovered as a result of any recovery and enforcement activity by the RPA Seller (or LendInvest on its behalf) under the RPA Loan Agreement may not be sufficient to repay the entire amount due to you under the Receivables Participation Agreement. In that case, you acknowledge that you will only be entitled to receive amounts allocated to you in accordance with the terms of the relevant Receivables Participation Agreement.
7.6 Sometimes, an RPA Borrower requires some flexibility in its payments under its RPA Loan Agreement with an RPA Seller. For example, an RPA Borrower might come to us or an RPA Seller to say that they are anticipating being late on a payment and there is a genuine reason for the delay. If, having assessed the facts and the evidence provided to us (we usually require an updated valuation of the property, amongst other things), we and the relevant RPA Seller are comfortable with the delay, we and the RPA Seller may be willing (in our absolute discretion) to allow the RPA Borrower some temporary flexibility on its repayments. In this situation, rather than causing unnecessary payment delays to you, we or the relevant RPA Seller may (in our absolute discretion) opt to pay you the interest due to you on time in advance of the RPA Borrower paying the interest under the RPA Loan Agreement (always at our discretion and up to a maximum of six payments). If the delay later materialises into an actual non-payment by the RPA Borrower, or we or the RPA Seller pays the interest upfront to you in this way for six months in a row, we would let you know and look to enforce the terms of the RPA Loan Agreement as normal. Any amounts paid by the relevant RPA Seller or by us to you under this clause will be deducted out of recoveries before making payment as set out in the Receivables Participation Agreement in respect of any other amounts due or owing to you.
Section C – RPA Borrower Terms
8.1 If you wish to use the Platform and potentially become an RPA Borrower, you must agree to comply with the terms of this Agreement. However it is not necessary to use the Platform to become an RPA Borrower and so some RPA Borrowers will be borrowers under RPA Loans generated off the Platform.
8.2 Our activities carried out in connection with the RPA Loan Agreements are not regulated by the Financial Conduct Authority and none of the Information on the Platform and/or provided by LendInvest needs to be, or has been, approved within the meaning of the Financial Services and Markets Act 2000.
8.3 You agree that you will not make any contact with any RPA Investor concerning an RPA Offer, RPA Loan, RPA Loan Agreement, RPA Security Documents or Information concerning them or any Property on the Platform without our prior written consent.
8.4 You must promptly notify us if you receive Information from, or you are otherwise contacted by, any RPA Investor, solicitor, law firm or valuer (other than your own solicitor or other professional advisors), or you have a pre-existing relationship with an RPA Investor, solicitor, law firm, or valuer which you are aware is involved. If any such person makes, or attempts to make, contact with you regarding any RPA Loan or potential RPA Loan outside of the process described in this Agreement then you must direct them to contact us.
8.5 We reserve the right, in our sole and absolute discretion, to not enter into any RPA Loan Agreement for any reason at any time whatsoever, and in the event we choose not to enter into any RPA Loan Agreement, we will have no obligation to tell you the reason for such decision.
9. Initial Application
9.1 If you wish to become an RPA Borrower, you must first apply to become an RPA Borrower via the process set out on the Platform, or via the hard copy application form set out on the Site.
9.2 In proceeding through this application process from initial application through to offer of an RPA Loan, you agree to supply to us all information that we may reasonably require from time to time in order to assess your requirements for the potential RPA Loan, the related Property and to confirm some information about you. You acknowledge and agree that any failure to provide sufficient and/or accurate information of this nature could lead to your application being declined, and in the event we choose to decline your application, we will have no obligation to tell you the reason for such decision.
9.3 Once we have received your completed application form, we will review this internally to ascertain if your application meets our lending criteria and credit policy as updated from time to time. During this internal review, we may request further information from you relating to you, the terms of the RPA Loan you wish to receive or the underlying Property, which you agree to supply. Please see this webpage for further information on our internal policies and requirements relating to our lending activities: https://www.lendinvest.com/invest/underwriting/.
9.4 Where your application fails to meet the requirements of our lending criteria or credit policy, or otherwise is not acceptable to LendInvest in our sole discretion, we will inform you of that and formally decline to offer to enter into an RPA Loan Agreement with you. In the event we choose decline to offer to enter into an RPA Loan Agreement with you, we will have no obligation to tell you the reason for such decision.
9.5 Where your application meets the requirements of our lending criteria and credit policy and is otherwise acceptable to LendInvest in our sole discretion, we will inform you of that and issue to you a non-binding, subject to contract offer to proceed to the next stage of the application process, as set out below.
10. Full application
10.1 Following receipt of the non-binding offer as set out in Clause 9.5 of this Addendum, you will be provided with a full application form to be completed. When submitting the completed full application form to LendInvest, you will also be required to provide supporting information for your application, such as evidence of your identity, home address and other information necessary to enable LendInvest to carry out its internal compliance checks on you (such as money laundering, fraud prevention and credit checking). You acknowledge and agree that any failure to provide sufficient and/or accurate documentation of this nature as requested by LendInvest from time to time could lead to your application being declined.
10.2 Once we have received your full application form and all supporting documentation, and are satisfied that they meet our requirements (and those of our underwriters) in our absolute discretion, we will carry out our own checks, including valuation of the Property, money laundering, fraud prevention and credit checking. By agreeing to this Agreement you hereby consent to us carrying out any checks of this nature that we require.
10.3 You agree that we may carry out a valuation of the Property in order to ensure that it is suitable to be held as security against any RPA Loan that may be provided to you. The fees for the valuation of the Property shall be at the RPA Borrower’s cost, and you will be responsible for those fees whether the RPA Loan proceeds or not. By entering into this Agreement you agree to pay these fees. The valuation will not take place until the fees for the valuation have been paid by you to LendInvest. The valuation will be undertaken in accordance with the latest edition of the Royal Institution of Chartered Surveyors Valuation – Professional Standards 2012 and the terms of engagement that we agree with the appointed surveyor. You agree to provide all reasonable co-operation to the appointed surveyor in carrying out the valuation, including providing reasonable access to all areas of the Property and all information which the appointed surveyor may reasonable request. You agree to attend the Property during the inspection by the appointed surveyor. You acknowledge and agree that your application may not proceed until the valuation has been satisfactorily completed and the results of such valuation have been reviewed and accepted by LendInvest.
11. Approval of RPA Loan and advance of funds
11.1 Once LendInvest has completed all necessary checks (including assessment of the results of the valuation of the Property, all credit, fraud and money laundering checks), LendInvest may in its absolute discretion choose whether or not to issue to you a formal offer to you to enter into an RPA Loan Agreement. If we choose not to issue a formal offer, you will be informed that your application has been declined.
11.2 The formal offer from LendInvest to enter into an RPA Loan Agreement with an RPA Seller will include the terms and conditions that will apply to the RPA Loan, including the RPA Loan Agreement and all related RPA Security Documents. If you wish to complete the RPA Loan, you must accept the terms and conditions attached to the formal offer by carrying out the acceptance process set out in the formal offer. Once the formal offer is accepted and all related terms and conditions have been executed by you to LendInvest’s satisfaction, funds will be advanced by the RPA Seller to your solicitors, through LendInvest’s solicitors.
12.1 We will charge you certain fees, including legal fees, valuation fees and an arrangement fee as part of your entering into an RPA Loan Agreement. The amount of fees chargeable will vary depending on the terms of the underlying RPA Loan and will be set out in more detail in the offer documents which you receive during the application process. Certain of these fees will be payable by you whether the RPA Loan proceeds or not.
12.2 We may waive or offer discounts on any of our fees to any person at any time in our sole and absolute discretion.
12.3 We may change any of our fee rates from time to time to reflect cost increases or reductions. We will give you notice of any change in our fees in accordance with Clause 11 of the General Terms.
12.4 All fees are exclusive of any applicable Value Added Tax or other taxes, for which the person who is obliged to pay the relevant Fee shall be liable.