Terms and conditions applicable to facilities issued by the JLG Group PLC and Group companies.

These Terms and Conditions are important and form part of the legal agreement between you and us. Please ensure you read and understand the contents detailed below.

We go to great efforts to simplify matters for you and to avoid using banking or legal jargon. There are some matters in this document, however that have to be phrased in a particular way to ensure that we set out the correct legal position to you.

If you don’t understand what any of those terms or conditions mean you should speak to your legal adviser before you accept any offer that we make to you.

These Terms and Conditions and the Facilities to which they apply.

These Terms and Conditions apply to your Facility Agreement (as we define that term below). It is your responsibility to ensure that anyone entering into the Facility Agreement (including the Guarantor, if there is one) reads and retains a copy of these Terms and Conditions for future reference as they contain binding arrangements between you, them and us.

These Terms and Conditions will apply from the point in time at which you sign and return your Facility Agreement to us. Once you have accepted the offer contained in your Facility Agreement you will be legally bound to comply with these Terms and Conditions.

These Terms and Conditions apply to the facilities which we list below (the Facilities or the Facility). Your Facility Agreement will detail the particular type of facility that you have been offered and any specific terms that apply to it. The types of facility that we offer and to which these Terms and Conditions will apply are:

1.1.1
Revolving Credit Facilities (‘RCF’)
1.1.2
Business Builder
1.1.3
Business Accelerator
1.1.4
Personal qualifying loans

The above examples are not intended to be exhaustive and these Terms and Conditions may be used to apply to other types of facility that we may offer from time to time.

If you have previously entered into a Facility Agreement with us that relates to one of the above types of Facilities, these Terms and Conditions will apply from the Commencement Date (as that term is defined in your Facility Agreement) and, from that point, any previous terms and conditions applicable to your Facility Agreement will cease to be of effect. For the avoidance of doubt any liabilities owed to us under any Facility Agreement at that point will continue to be outstanding until discharged in full by you.

In the event there is any conflict between the terms of any Facility Agreement and these Terms and Conditions the provisions of your Facility Agreement will prevail. In all other respects these Terms and Conditions will govern each type of Facility issued.

They can be found at https://www.just-cashflow.com/terms

The use of the term ‘JLG’ or ‘we’ throughout these terms and conditions will be equally applicable to facilities issued by Just Cash Flow PLC and Just Bridging Loans PLC.

We may from time to time change, vary or supplement these Terms and Conditions. We will notify you of any such changes by email. From the date of that notification, all Facility Agreements will be governed by the then changed Terms and Conditions.

Credit appeals process

If you apply for credit and are declined we operate a transparent credit appeals process which we will make available to you. All decisions to decline formal applications for credit to business borrowers are subject to assessment. If upheld, the decline decision and reason(s) will be communicated to you verbally and in writing.

PART I
SECTION I - GENERAL CONTRACTUAL PROVISIONS
2
Definitions and Interpretation
2.1
In these Terms and Conditions some words have a particular legal or important meaning that you should note. These terms are capitalised for your ease of reference and their meaning when used in these Terms and Conditions is set out below:
Act of Default’ will mean, with respect to you or the Guarantor, the occurrence of any of the events set out in Clause 12 of these Terms and Conditions;
Account’ will mean the account in your name with us from which drawdown occurs and into which payments are made to your credit;
Account Limit’ will mean the figure specified in your Facility Agreement;
Borrower’ or ‘you’ will mean the person party to a Facility Agreement to which these Terms and Conditions apply;
Borrowed Money’ means any Indebtedness for or in respect of:
i.
borrowing or raising money, including any premium and any capitalised interest on that money;
ii.
any bond, note, loan stock, debenture, commercial paper or similar instrument;
iii.
any acceptance credit facility or dematerialised equivalent or bill-discounting, note purchase or documentary credit facilities;
iv.
monies raised by selling, assigning or discounting receivables or other financial assets on terms that recourse may be had to you in the event of non-payment of such receivables or financial assets when due;
v.
any deferred payments for assets or services acquired, other than trade credit that is given in the ordinary course of trade and which does not involve any deferred payment of any amount for more than 60 days;
vi.
any rental or hire charges under any Finance Leases (whether for land, machinery, equipment or otherwise);
vii.
any counter-indemnity obligation in respect of any guarantee, bond, standby letter of credit or other instrument issued by a third party in connection with your performance of a contract;
viii.
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 your balance sheet because they are contingent, conditional or otherwise);
ix.
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 marked to market value will be taken into account); and
x.
any guarantee, counter-indemnity or other assurance against financial loss that you have given for any Indebtedness of the type referred to in paragraphs i. to ix. of this definition incurred by any person.
When calculating Borrowed Money, no liability will be taken into account more than once.
Business Day’ will mean any day (excluding Saturdays, Sundays and bank holidays) on which banks are generally open in the City of London for the transaction of normal banking business;
Cash Cover’ will mean the requirement, following the occurrence of an Act of Default, for you to provide us cash cover together with security in respect of such cash cover in respect of all outstanding liabilities to us under the Relevant Documents whether those liabilities are present or future, actual or contingent;
Conditions Precedent’ will mean the documents and evidence listed in a Facility Agreement to be provided to us (in form and substance satisfactory to us) as conditions precedent to the availability of the Facility to be made available to you;
Costs’ will mean all costs incurred in the management, administration, enforcement and recoveries pursuant to the Facility Agreement including those costs and expenses set out in Part IV (Schedule of Costs) to these Terms and Conditions;
Data’ will mean any information or data provided to us by any party to a Facility Agreement and which is held by us for the duration of the Facility Agreement and beyond in the event that such Data is required for the purposes of the preservation or enforcement of our rights under these Terms and Conditions;
Debenture’ will mean JLG’s agreed form debenture as specified in any Facility Agreement or in the case of Borrowers registered in Scotland a Bond and Floating Charge in standard form;
Debt’ will mean at any time the total amount of the Facility drawn down by you and standing to your debit on the Account together with all other fees, capital, interest, expenses or charges payable by you to us whether as a result of an Act of Default or otherwise;
Default Interest Rate’ will mean the default interest rate specified in the relevant Facility Agreement:
Disruption Event’ will mean either or both of:
i.
an event (not caused by, and outside the control of, either party) that disrupts the systems for payment or communication or the financial markets needed, in each case, to enable either payment to be made or transactions to be carried out under the Relevant Documents; or
ii.
any other event (not caused by, and outside the control of, the party whose operations are disrupted), that results in disruption (of a technical or systems-related nature) to the payments operations of a party and which prevents either or both parties from (i) performing its payment obligations under the Relevant Documents, or (ii) communicating with the other party as required by the terms of the Relevant Documents;
Early Repayment Fee’ means, if you have a Business Builder, Business Accelerator or any other term loan agreement with us, the amount payable by you in accordance with the provisions of clause 4.3 in the event that you elect to repay your Facility prior to the end of the relevant Term as may be set out in the relevant Facility Agreement;
Facility’ will mean any loan facility offered to you by us under the terms of a Facility Agreement;
Facility Agreement’ will mean any agreement pursuant to which a Facility is made available by us to you and which has been entered into between us;
Finance Document’ will mean these Terms and Conditions, the Facility Agreement, any Debenture, any Mortgage, any Guarantee, any document entered into or certificate issued under these Terms and Conditions which is ancillary to the issue of the Facility Agreement and any other document which is designated as a Finance Document by us;
Finance Lease’ will mean any lease, hire agreement, credit-sale agreement, hire-purchase agreement, conditional sale agreement or instalment sale and purchase agreement relating to land, machinery, equipment or any other asset which should be treated as, or in the same way as, a balance sheet liability;
Group Company’ will mean Just Cashflow PLC, JLG Group PLC and all their subsidiaries as defined in section 1159 of the Companies Act 2006, and ‘Group’ will mean all of the Group Companies;
Guarantee’ will mean any guarantee and indemnity by which the person named in that document, guarantees to us the punctual performance by you of all your obligations under the Finance Documents and undertakes with us that whenever you do not pay any amount when due under or in connection with any Finance Document, that Guarantor will immediately on demand pay that amount as if it was the principal obligor;
Guarantor’ will mean any person (corporate or individual) entering into a Guarantee;
Increased Costs’ will mean any:
i.
reduction in the rate of return from the Facility or our overall capital;
ii.
additional or increased cost; or
iii.
reduction of any amount due and payable under any Finance Document,
which is incurred or suffered by us and is as a result of us having entered into the Facility or funding or performing our obligations under any Finance Document;
Indebtedness’ will mean 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;
Interest Rate’ will mean the rate of interest specified in a Facility Agreement.
Lender’, ‘JLG’ ‘us’ or ‘we’ will mean Just Cash Flow PLC and/or any Group Company;
Material Adverse Effect’ will mean any event or circumstance which, in our opinion:
i.
is likely to materially and adversely affect your ability to perform or otherwise comply with all or any of your obligations under the Finance Documents;
ii.
is likely to materially and adversely affect your business, operations, property, condition (financial or otherwise) or prospects; or
iii.
is likely to result in any Finance Document not being legal, valid and binding on, and enforceable in accordance with its terms against, you and, in the case of the Debenture, not providing to us security over the assets expressed to be subject to a security interest under the Debenture.
Mortgage’ will mean JLG’s agreed form mortgage as specified in any Facility Agreement whether legal or equitable;
Notifiable Event’ will mean any event which affects (or might affect) any security granted to us pursuant to these Terms and Conditions, any event that might constitute an Act of Default or otherwise impair your ability to perform your obligations under these Terms and Conditions or any other matter designated as a Notifiable Event by notice from us to you. A Notifiable Event may include (but will not be limited to):
i.
the use of the Facility Agreement for any other purpose than as permitted by us or as stated in that Facility Agreement;
ii.
the initiation of any proceedings, statutory demand, demand for payment, calling in of any Facility Agreement, judgment or order, brought or made against you, any of your directors/partners or a Guarantor;
iii.
any negative change in the credit rating or standing of either you or your directors/partners or Guarantors;
iv.
the filing of accounts which show a deterioration in profit before tax, or liquidity or your net worth by comparison with the preceding equivalent period;
v.
notice of any act by any third party which threatens or might threaten, your financial stability or that of the Guarantor or any of their assets;
vi.
any change in your constitution or your board of directors or management panel;
vii.
any adverse change in the financial circumstances of a Guarantor;
viii.
any alteration to the pre contract information supplied by you or the Guarantor to us as set out in any underwriter’s certificate annexed to a Facility Agreement;
ix.
the repayment of any debt owed by you to any director; or
x.
the company raising further debt facilities without our prior agreement in writing.
Property’ will mean any real property over which security (whether legal or equitable) is provided by you or the Guarantor to us and to which the provisions of Part III these Terms and Conditions will apply;
Regulatory Authority’ will mean the Financial Conduct Authority, the Prudential Regulation Authority and any other regulatory, fiscal, monetary or other authority having jurisdiction over us or any of our subsidiaries whether or not having the force of law;
Relevant Document’ will mean (1) any Facility Agreement, (2) any schedule to a Facility Agreement, (3) all documents under which any person (including you) grants security or issues a guarantee in respect of your obligations under a Facility Agreement, (4) each letter or agreement varying, amending supplementing, restating, substituting or novating such document from time to time, and (5) any Finance Document;
Relevant Person’ will mean (1) you (2) any other person who enters into a Relevant Document (3) any of your subsidiaries, and (4) a partner;
Security’ will mean any assignment/assignation by way of security, charge, lien, mortgage, pledge, standard security, right of set-off, right of retention of title or other security interest securing any obligation of any person and any other agreement or arrangement having a similar effect;
Schedule of Costs’ will mean the schedule in Part IV hereof which contains a pre-estimate of the administrative cost of dealing with each of the events specified.
Term’ will mean the period from signing of the Facility Agreement until the Termination Date;
Termination Date’ will mean the date defined as such and set out in the Facility Agreement or such other date specified in a notice served upon you by us as a result of the occurrence of an Act of Default; and
Termination Notice’ will mean a notice served by us on you and/or the Guarantor notifying you and/or the Guarantor of the occurrence of an Act of Default and the consequential termination of the Facility Agreement.
2.2
Interpretation
In these Terms and Conditions, unless the context requires otherwise, references to:
2.2.1
sections and clauses refer to the relevant sections and clauses of these Terms and Conditions;
2.2.2
the singular includes the plural and vice versa;
2.2.3
headings or marginal titles used in these Terms and Conditions are for your ease of reference only and will not affect the construction or interpretation of these Terms and Conditions;
2.2.4
you, your, yours, and Customer are deemed to include Borrower;
2.2.5
any reference to a statutory provision, or to any order or regulation includes a reference to that provision, order or regulation as extended, modified, replaced or re-enacted from time to time;
2.2.6
any entity includes to its successors, assignees and transferees;
2.2.7
“guarantee” (other than in respect of any guarantee issued or to be issued by us) includes any guarantee or indemnity and other financial support (including any participation or other assurance against loss and any deposit or payment) in respect of any person’s indebtedness; and
2.2.8
“person” includes any individual, company, corporation, firm, government, state or agency of the state and any association, partnership or trust (in each case whether or not it has a separate legal personality).
SECTION 2 - PAYMENTS, REPAYMENT AND CANCELLATION
3
Drawdown
3.1
In order to draw down loan facilities under any Facility Agreement you must have satisfied all Conditions Precedent and you will comply with all pre-conditions stated in your Facility Agreement which may include the completion of drawdown instructions and a direct debit or standing order instruction.
3.2
You can request a drawdown by submitting a request through the online portal at www.just-cashflow.com/mycfp
3.3
Details of the times and dates on which drawdown will be effected can be found at www.just-cashflow.com/mycfp
4
Payments
4.1
The following provisions will apply to repayments, prepayments and any over-payments made by you under a Facility Agreement:
4.1.1
You (or the Guarantor if you fail to do so) must punctually make the repayments at the times and on the dates specified in your Facility Agreement. You may be required to complete a direct debit and/or a standing order instruction for the purpose of your repayments. At our discretion notwithstanding any intervening expiry date, any direct debit(s) and/or standing order(s) for the agreed periodic repayment amounts may continue to be presented until the full amount of the loan and any other amounts due in respect of the loan have been repaid.
4.1.2
If the Interest Rate varies during the repayment period we may, but are not under any obligation to, (i) vary the amount of the repayments by changing the amount of the direct debit or by accepting a new standing order instruction for the revised payment; or (ii) adjust the number of the repayments; or (iii) adjust the amount of the final balancing payment.
4.1.3
By executing any Facility Agreement you permit us to collect any exceptional payments owed (such as default interest or additional fees and expenses) by means of any existing payment mandate. If we are required to do this we will notify you in writing in advance.
4.2
Residual Balance
The following provisions will apply to residual balances under a Facility Agreement:
4.2.1
Any residual balance outstanding at the end of a repayment period (whether arising from fluctuations in the Interest Rate, an Act of Default relating to the repayment of principal or interest on the due dates, timing of drawdown, scheduled repayments falling due on non-Business Days, or otherwise) will attract default interest at the Default Interest Rate together with excess interest and will become immediately due and payable until the full amount of the residual balance and any other amounts due in respect of the loan have been repaid.
4.2.2
Any credit balance which remains outstanding will be promptly paid to you after the deduction of all sums due to us howsoever arising.
4.3
Early Repayment Fee – Business Builder and Business Accelerator
If you have a Business Builder, Business Accelerator or any other term loan agreement with us and you wish to terminate and repay that agreement before the end of the applicable Term you must give us 10 Business Days prior notification in writing of your intention to do so. We may, in our discretion, permit that early termination and repayment in which case you may be required to pay us the Early Repayment Fee which will be calculated to be the equivalent of 1% of the Account Limit. You will be required to pay any Early Repayment Fee to us immediately upon cancelling and/or repaying your Facility.
4.4
Overpayment
Unless otherwise agreed we will use any overpayment to reduce the remaining term of the loan and your scheduled repayments will remain unchanged and will continue to fall on the scheduled repayment dates until your loan is repaid in full. You may request, at the time of making the overpayment, that you want to use it to reduce your scheduled repayment and to leave the Term unchanged. An overpayment is any payment which is in addition to a scheduled repayment and is insufficient after paying off any arrears to repay the outstanding balance due under the agreement. We will charge you an administration fee where we are required to maintain or administer any such overpayment.
4.5
You must make all payments to us that are due under the Facility Agreement:
4.5.1
in full without set off or counter-claim in cleared funds to be received by us no later than 16.00 hours (or such other time as notified by us to you) on the due date for payment; and,
4.5.2
free of any deduction or withholding for or on account of tax unless you are required by law to make such a deduction or a withholding in which case the amount of the payment to us will be increased to the extent necessary to ensure that we receive a sum equal to that which we would have received had no deduction or withholding been made.
4.6
Set off
4.6.1
We may, at any time, set off any liability owed by you to us against any liability owed by us to you, whether either liability is current or will arise in the future, liquidated or unliquidated, and whether or not either liability arises under your Facility Agreement or the Finance Documents. If the liabilities to be set off are expressed in different currencies, we may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by us of our rights under this clause will not limit or affect any other rights or remedies available to us under the Finance Documents or otherwise.
4.6.2
We are not obliged to exercise our rights under 4.6.1 but if the rights are exercised, we will promptly notify you of the set-off that we have made.
4.7
Interest
4.7.1
All interest and charges will accrue on a daily basis (both before and after any judgment and regardless of any judgment rate awarded in respect of sums accruing under these Terms and Conditions post judgment) and will be calculated on the basis of the actual number of days elapsed and a year of 365 days.
4.7.2
Interest will be payable to the Account from time to time at the applicable Interest Rate.
4.7.3
The Interest Rate payable by you from time to time will be set out in your Facility Agreement.
4.7.4
The way interest is calculated on your Facility will be set out in your Facility Agreement.
4.8
Fees
You will pay to us the following fees in connection with your Facility:
4.8.1
the arrangement fee on the date of the Facility Agreement, which will be which will be deducted from Account Limit; and
4.8.2
the monthly management fee (if applicable to any particular facility) which will be paid by you monthly in arrears;
4.8.3
if applicable, the renewal fee, payable on renewal or extension of the Facility; and
4.8.4
any other Costs due under these Terms and Conditions and/or the relevant Facility Agreement.
The amount payable in respect of each fee will be set out in your Facility Agreement.
4.9
All notifications, determinations and calculations given or made by us under your Facility Agreement will be conclusive and binding except in any case of fraud or material error.
4.10
In the event of non-payment by you, we will be entitled to deduct that sum from the Account even if doing so would cause doing the Account Limit to be exceeded and if a consequence of such deduction is that a higher rate of interest would apply or an Act of Default would occur.
4.11
Increased Costs
You must pay to us within 3 Business Days of a demand from us the amount of any Increased Costs incurred by us as a result of:
4.11.1
the introduction of, or any change in any law or regulation by any governmental or Regulatory Authority; or
4.11.2
compliance with any law or regulation made after the date of this agreement.
4.12
Disruption to payment systems
If we determine, or you notify us, that a Disruption Event has occurred:
4.12.1
we will consult and agree with you the changes (if any) needed to the operation or administration of the Facility as we, in our discretion, think necessary in the circumstances;
4.12.2
we will not be obliged to consult with you about any such changes if in our opinion it is not practical to do so in the circumstances; and
4.12.3
any change made or agreed under this clause 4.12 will (whether or not an event is finally determined to be a Disruption Event) be binding on the parties as an amendment of the Finance Documents.
4.13
If a payment is due to be made by you or by us under the terms of your Facility Agreement which would otherwise be due on a day which is not a Business Day, that payment will, instead, be made:
4.13.1
the next Business Day in that calendar month, if there is one; or
4.13.2
the preceding Business Day, if there is not.
5
Repayment, Cancellation and Extension
5.1
All amounts outstanding under your Facility Agreement will be repayable in full by you or the Guarantor/s (as the case may be) immediately on whichever is the earliest to occur of;
5.1.1
the Termination Date;
5.1.2
the service of a Termination Notice; or,
5.1.3
cancellation of the Account or the Facility Agreement by us.
5.2
Any notice referred to in clause 5 may (at our election) relate to the whole or part only of the Debt. If it relates to part only, the provisions of the Relevant Documents will continue to apply to the remainder of the Debt in existence at the date of such notice.
SECTION 3 - TERMINATION, CANCELLATION AND EXTENSION
6
Termination
Our rights to terminate
6.1
We will be entitled to terminate the Facility Agreement by written notice to you where:
6.1.1
you commit any breach of the Facility Agreement; and/or
6.1.2
you commit an Act of Default; and/or
6.1.3
you commit an Act of Default and fail to notify us in writing within 48 hours;
and termination of the Facility Agreement will occur no later than seven days after the date of that notice.
6.2
We are entitled to terminate the Facility Agreement immediately by written notice to you if:
6.2.1
you pass a resolution or the court makes an order that the Borrower should be wound up or that an administrator be appointed, or if you make a composition or an arrangement with your creditors, or if a receiver or manager or administrator on behalf of a creditor is appointed, or if circumstances arise which entitle the court or a creditor to appoint a receiver, manager or administrator or which entitle the court to make a winding up order; or
6.2.2
an individual director or Guarantor at any time suffers a worsening of his or her financial position or becomes bankrupt, or has a receiving order made against them or makes any composition or arrangement with or for the benefit of his or her creditors, or purports to do so; or
6.2.3
any law or regulation is introduced or changed, or there is any change in the way any court or Regulatory Authority interprets or applies any law or regulation, which makes it unlawful for us to make the Facility available or to allow the Facility to remain outstanding.
6.3
If we require prepayment for any of the reasons set out in clause 6.2.3, we will give notice to you demanding prepayment and giving the required date for that prepayment. The date for prepayment will be:
6.3.1
the last Business Day of the month in which we give you notice; or
6.3.2
if earlier, the Business Day we certify to be the last date for payment under any law, regulation, direction, request, requirement, judgment or order specified in clause 6.2.3.
In those circumstances, you will prepay the Loan as set out in our notice, together with accrued interest on the Loan together with all other sums then payable under the Finance Documents. Our obligations to make the Facility available to you will terminate on giving that notice and our commitment to you will be automatically cancelled on that date.
Your rights to terminate
6.4
Subject to clause 4.3 you will be entitled to serve written notice of your intention to terminate the Facility Agreement at any time during the Term, in which case we will provide a statement of the Account to the date specified by you for redemption of the Debt (‘the Redemption Date’) together with details of any Early Repayment Fee if applicable.
6.5
You will repay to us the Debt in full on the Redemption Date (together with any Early Repayment Fee if applicable) at which point your Facility Agreement will be deemed to have been cancelled.
6.6
Interests, costs and charges incurred during that notice period will continue to accrue to the Account until the Redemption Date.
6.7
In the event that you fail to repay the full amount of the Debt (together with any Early Repayment Fee if applicable) on the Redemption Date interest will continue to apply at the Default Rate until the date of actual payment of the Debt.
7
Effect of Termination or Cancellation
Termination or cancellation of the Facility Agreement will not affect any obligation or liability of any party which exists at the date of such termination or cancellation.
SECTION 4 - INFORMATION, WARRANTIES INDEMNITIES AND FINANCIAL COVENANTS
8
Provision of information
8.1
You will, if required to by us providing not less than 5 working days prior written notice, deliver to us:
8.1.1
management accounts to us at quarterly intervals throughout the Term;
8.1.2
draft accounts for the preceding year to us within one month of the end of your financial year;
8.1.3
within six months of the end of your financial year, a copy of the latest financial statements (consolidated where you have a subsidiary or subsidiaries).
8.1.4
copies of any and all bank statements for the last 12 months
8.1.5
proof of HMRC and supplier liabilities and any payment plans that might exist
8.1.6
any and all requests for information which we may make in the context.
8.2
You will promptly deliver to us, on request, such information about any Relevant Person or the business, operations, assets, financial condition or prospects of any Relevant Person as we may reasonably require.
8.3
You irrevocably authorise us to disclose information relevant to the Facility Agreement to any Guarantor at any time during the Term.
9
Preparation of Information
9.1
When preparing information required under clause 8 you will ensure that:
9.1.1
all management accounts include a profit and loss account, prepared in respect of your financial year to date and a cash flow forecast for the following 3 months, and both will contain a commentary from a director on the financial performance during that period including, in the case of the profit and loss account a comparison of actual performance to budgeted performance; and
9.1.2
if your quarterly budget is required to be delivered to us at any time such quarterly budget will include as a minimum;
(i)
a projected profit and loss account (broken down on a weekly basis);
(ii)
a cash flow forecast (broken down on a weekly basis).
9.2
We reserve the right to engage auditors to verify any accounts by an independent third party auditor selected by us and you will cooperate and cover the cost of any such audit.
10
Financial Covenants
10.1
If we determine in our reasonable credit discretion that any of the following apply to you or to any Guarantor (if applicable):
10.1.1
any Act of Default might or would, with the passage of time, occur;
10.1.2
you or a Guarantor might or will imminently suffer a worsening of your financial position or net worth;
10.1.3
a Material Adverse Effect might or will imminently apply to you or to the Guarantor;
10.1.4
any Property which is the subject of our security or any other asset secured by any of the Finance Documents is in danger of falling into disrepair or the mark to market value of such asset has or might diminish;
10.1.5
any of the financial statements provided by you to us under clause 8 demonstrate a deterioration or potential deterioration in your financial condition, then we may (at our discretion) inform you by notice in writing that the provisions of this clause 10 apply to you. With effect from receipt of that notice the provisions of this clause 10 will apply to you and you will be required to comply with the provisions detailed in this clause until we notify you in writing that they will cease to apply.
10.2
In this clause 10 the following capitalised terms will have the meaning detailed below:
Loan to Value’ at any time, the proportion (expressed as a percentage) that the Loan under your Facility bears to the market value of the Property, calculated in accordance with the then most recent Valuation;
Net Rental Income’ in respect of any period, Rental Income but excluding (to the extent otherwise included) and without double counting:
a.
all Tenant Contributions in relation to the Property; and
b.
any sum representing any value added tax or similar tax chargeable in respect of Rental Income.
Occupational Lease’ any occupational lease, underlease or sublease or tenancy of, or licence, or other right to occupy the Property (or part of it).
Projected Interest Costs’ an estimate by you (satisfactory to us) of the aggregate amount of all interest and periodic fees in the nature of interest (including, for the avoidance of doubt, any commitment fee) that will become payable by you to us under a Finance Document during the Relevant Period.
Projected Interest Cover’ the proportion (expressed as a percentage) that the Projected Net Rental Income receivable during a Relevant Period bears to the Projected Interest Costs for the same period.
Projected Net Rental Income’ an estimate by you (satisfactory to us) of the aggregate Net Rental Income receivable by you during the Relevant Period from the Property on the basis that:
a.
only Net Rental Income receivable under Occupational Leases or under Occupational Leases to be granted during the Relevant Period pursuant to a contractually binding agreement for lease will be included;
b.
a break option exercisable by a tenant will be deemed to be exercised by that tenant at the earliest possible date unless we have received confirmation, in form and substance satisfactory to it, that such break option will not be exercised;
c.
all Net Rental Income from any part of the Property that is scheduled to be disposed of during the Relevant Period will be excluded;
d.
all Net Rental Income payable by a tenant who is more than one quarter in arrears will be excluded; and
e.
potential increases of Net Rental Income because of a rent review will be excluded, unless such rent review has already been concluded and is legally binding on the tenant.
Relevant Period’ each 12-month period beginning on the Commencement Date as stated in your Facility Agreement.
Rental Income’ in respect of any period, the aggregate of all amounts paid or payable to or for your account in connection with the letting, licence or grant of other rights of use or occupation of all or any part of the Property, including (but not limited to and without double counting) each of the following amounts:
a.
rent, licence fees, service charges, insurance premiums, contributions to a sinking fund and other monies reserved by or arising out of any Occupational Lease (and any equivalent amounts);
b.
monies in respect of the occupation or use of the Property (or part of it) or in respect of a fixture or fitting on the Property, including a fixture for display or advertisement, whether under a licence or otherwise; the Property;
c.
monies from any deposit held as security for the performance of any tenant’s obligations;
d.
payments in respect of a breach of covenant under an Occupational Lease or dilapidations in relation to the Property and for expenses incurred by you in relation to any such breach or dilapidations;
e.
profits awarded or agreed to be payable as a result of any proceedings taken or claim made;
f.
damages, compensation, settlement or expenses for or representing loss of rent or interest on rent, awarded or agreed to be payable because of any proceedings taken or claim made for the same less any fees and expenses paid (which have not been reimbursed to, and are not recoverable by, you) in respect of those proceedings or claim;
g.
insurance proceeds in respect of loss of rent or interest on rent;
h.
any sum, or the value of any consideration, for the grant, surrender or variation of any Occupational Lease or agreement for the occupation or use of the Property (or part of it);
i.
monies from any guarantor or other surety of any tenant under an Occupational Lease or other occupier or user;
j.
interest, damages, compensation or settlement in respect of any sum referred to above; and
k.
value added tax or similar tax on any sum referred to above.
Tenant Contributions’ in respect of any period, the aggregate of the following amounts:
a.
all amounts paid or payable to, or for your account from any tenant under an Occupational Lease or other occupier or user of the Property (or part of it) by way of payment of, or contribution to, insurance premiums or the cost of any insurance valuation or by way of service charge in respect of costs incurred, or to be incurred, by you in relation to the management, maintenance or repair of the Property or any similar obligation or in providing services to a tenant, other occupier or user of the Property (or part of it);
b.
all amounts paid or payable to, or for your account in respect of a breach of covenant under an Occupational Lease or dilapidations in relation to the Property or for expenses incurred by you in relation to any such breach or dilapidations, where the amount received is, or is to be, applied by you in remedying the breach, carrying out work in respect of the dilapidations or discharging those expenses;
c.
any contribution to a sinking fund by any tenant or other occupier or user of the Property (or part of it); and
d.
value added tax or similar tax on any sum referred to above.
Valuation‘ a valuation of your interest in the Property prepared by a valuer addressed to, and capable of reliance on by us and prepared based on market value (as that term is defined in the then current Valuation - Professional Standards issued by The Royal Institution of Chartered Surveyors) and otherwise complying, if appropriate, with our letter of instruction relating to that valuation.
10.3
If required to pursuant to the terms of clause 10.1 you must ensure that, until the Termination Date, the Loan to Value shall not at any time exceed 85%.
10.4
If required to pursuant to the terms of clause 10.1 you must ensure that, until the Termination Date, the Projected Interest Cover for each Relevant Period commencing during each period specified in the first column in the table below will be at least equal to the percentage shown opposite that period in the second column in the table below:
Period Projected Interest Cover
The date of our notice served pursuant to clause 10.1 to the anniversary of the date of this agreement 110%
Thereafter (if applicable) 120%
10.5
If invoked pursuant to our rights under clause 10.1 the financial covenants set out in clause 10.3 and 10.4 will be tested quarterly by reference to any financial information provided by you or any Guarantor pursuant to clause 8 and by reference to any Valuation.
10.6
If you are in default or breach of any of the financial covenants set out in this clause 10 we will be entitled, in addition to any other rights we may have under the Finance Documents, to make such investigations and obtain such legal, accountancy and/or valuation reports as we deem appropriate at your cost. You will be required to provide all assistance required in connection with such investigations and reports.
10.7
If there is any dispute as to any calculation with respect to the financial covenants under this clause 10, or as to the interpretation of any of the definitions applicable to financial covenants, our decision will, in the absence of obvious error, be conclusive and binding on you.
11
Warranties, Undertakings and Indemnities
11.1
You represent and warrant in respect of yourself and (to the best of your knowledge, information and belief having made due and careful enquiries) in respect of the Guarantor (if any):
11.1.1
all information supplied to us pursuant to the Finance Documents is true, complete and accurate in all material respects and is not or will not be misleading in any respect; and
11.1.2
you have made full disclosure to us of all information relating to the Borrower, the Guarantor (if any) and their respective businesses that would be material to or should be made known to any bank that is proposing to lend or has lent money to you; and
11.1.3
if the Borrower is a company, it is duly incorporated and validly existing under the laws of its jurisdiction of incorporation and it has the power to own its assets and carry on its business as it is being conducted; and
11.1.4
where applicable, the Borrower/the Guarantor is aged 18 years and over and is not by reason of illness or incapacity, incapable of managing his/her own affairs and he/she has not become or been declared to be of unsound mind or become a ward of court; and
11.1.5
where applicable, the Borrower/the Guarantor has the power to enter into, perform and deliver (and has taken all necessary action required to authorise his/her/its entry into, performance and delivery of) the Facility Agreement and all security for the Facility to which he/she/it is or will be a party and the transactions contemplated by the Relevant Documents; and
11.1.6
the obligations expressed to be assumed by the Borrower/the Guarantor in the Finance Documents to which the Borrower/the Guarantor is or will be a party are legal, valid, binding and enforceable obligations and do not and will not conflict with:
a)
any law or regulation applicable to the Borrower/Guarantor and/or any of their assets;
b)
any agreement or instrument binding upon the Borrower/Guarantor or affecting any of their assets; and
c)
its constitutional documents (where applicable); and
11.1.7
the Borrower/the Guarantor is in compliance with all applicable laws, regulations and practices and he/she/it holds and will keep in full force and effect and will comply with all authorisations, consents, approvals, waivers, resolutions, licences, permits, exemptions or registrations to ensure the Facility Agreement and all security for the facilities to which he/she/it is a party or will be party is legal, valid, binding and enforceable and to enable him/her/it to validly perform his/her/its obligations thereunder; and
11.1.8
the Borrower, the Borrower’s directors/partners and Guarantors warrant that prior to entry into the Facility Agreement they will read all Relevant Documents in their entirety and will declare that they proceed on the basis that;
a)
they know of no reason why a Facility Agreement should not be entered into; and
b)
no circumstance existed immediately prior to execution of a Facility Agreement that constituted a misrepresentation the effect of which might cause us not to enter into a Facility Agreement.
11.1.9
the Borrower/Guarantor has not breached any term or condition applicable to any facility and is not in breach of or in default under any agreement or document to which he/she/it is a party or by which he/she/it or any part of his/her/its assets may be bound which could have a Material Adverse Effect on him/her/it or on his/her/its ability to perform his/her/its obligations under the Facility Agreement or any security for the facilities to which he/she/it is a party or will be party; and
11.1.10
the Borrower/Guarantor is the legal and beneficial owner of the relevant assets that are subject to the security and the assets are held by him/her/it free from any security interest (such as a mortgage, charge, pledge, lien, assignment or other security interest securing any obligation of any person, any title retention, preferential right, trust arrangement or other security agreement or arrangement having a similar effect), other than those notified to us; and
11.1.11
no litigation, arbitration or other proceedings have been started or threatened against the Borrower/Guarantor which could have a Material Adverse Effect on him/her/it or on his/her/its ability to perform his/her/its obligations under the Facility Agreement or any security for the facilities to which he/she/it is a party or will be party; and
11.1.12
the Borrower/Guarantor has been advised to take, and has been given full opportunity to take, independent legal advice on the Facility Agreement and the actual and potential consequences of his/her/its execution of the Facility Agreement, all security for the facilities and any other document specified in or contemplated by the Facility Agreement to which he/she/it is or will be a party, including the terms and conditions set out in these Terms and Conditions.
11.2
These representations and warranties will be deemed to be repeated by you on the date of each drawdown or utilisation of any facility under the Facility Agreement and on each day thereafter, by reference to the facts and circumstances existing on such date:
11.3
You covenant and agree with and undertake to us that, for as long as any facility is available for utilisation or any amount is outstanding to us in respect of the Facility Agreement:
11.3.1
you will not, without our prior written consent, create or agree to create or permit any mortgage, charge, pledge, lien, assignment by way of security or other encumbrance or security of any nature over any of your assets or property; and
11.3.2
you will not incur or permit to subsist, any obligation for Borrowed Money other than under the Finance Documents; and
11.3.3
if you are a company, you will not alter your Memorandum and Articles of Association, or being the trustee of a trust, will not alter the trust deed or constitution in a manner prejudicial to us; and
11.3.4
you will pay promptly all creditors who would rank as priority creditors in the event of your insolvency or upon the appointment of a receiver over any of your property; and
11.3.5
you will promptly deliver to us such up to date financial and other information in relation to your business as we may from time to time require; and
11.3.6
you will arrange for annual accounts for your business to be prepared, properly audited (or, if applicable, properly certified by an independent accountant) and sent to us; and
11.3.7
the facility will be used for the purpose described by you in the application for funding and/or set out in the Facility Agreement; and
11.3.8
you will comply with all applicable laws relating to your business and property including, without limitation, laws relating to the health, safety, pollution or protection of the environment and the terms of any licence or other authorisation issued by any relevant authority; and
11.3.9
you will obtain and maintain at your expense all such licences and authorisations and you will produce such licences or authorisations to us on request; and
11.3.10
you will indemnify us and keep us at all times indemnified against any and all actions, costs, demands, claims, liabilities, losses or damage which we may suffer or be put to by reason of any breach or non-observance by you of any such applicable laws or the terms of any such licences or other authorisations; and
11.3.11
you will carry on your business in a proper and efficient manner; and
11.3.12
you will not (and will not allow any other party on your behalf to) sell, transfer or lease the whole of or any part of your present or future material assets or otherwise dispose of the whole of or any part of any such asset either in a single transaction or in a series of transactions, whether related or not and whether voluntarily or involuntarily without our prior written consent; and
11.3.13
you will not make any significant change to the nature, constitution or management of your business and will not enter into any transaction with any person other than on arm’s length commercial terms in the ordinary course of your business; and
11.3.14
there will be no change of control for the duration of the facilities without our prior written consent. In this regard, “change of control” means any change in direct or indirect ownership, any change in the power to control the composition or the majority of your board of directors and/or any person(s) (including any bodies corporate) gaining the power to direct your management and policies whether through ownership of shares, by contract or otherwise; and
11.3.15
you will not repay any director loans during the Term; and
11.3.16
you will not enter into any joint venture, partnership or similar arrangement with any other person or make any significant acquisitions or disposals without our prior written consent; and
11.3.17
you will promptly inform us of:
a)
any material litigation, arbitration or other proceedings pending or threatened against you or the Guarantor which could have a Material Adverse Effect on you or the Guarantor or on their ability to perform their respective obligations under the Facility Agreement or any security for the facilities to which you are a party or will be party; and
b)
any final letters of demand for payment received by you from any creditor, immediately upon becoming aware of it; and
c)
the occurrence of any Notifiable Event.
11.3.18
you will promptly inform us if a breach occurs of any of the terms and conditions applicable to any facility agreement to which you are a party; and
11.3.19
you will facilitate an independent valuation(s) of any asset (including without limitation any land and/or buildings) and/or your business if requested to do so by us at any time. Any such valuation(s) will be at your own expense and (unless agreed otherwise with us) will be carried out by a valuer chosen from our approved panel of valuers and addressed to us. We will be entitled to debit any fees or expenses relating to such valuation(s) to your working account or any other account which we deem appropriate; and
11.3.20
you will promptly do all such acts or execute all such documents as we may reasonably specify (and in such form as we may require in favour of us or our nominee(s)):
i.
to perfect any security (which may include the execution of a mortgage, charge, assignment, pledge, lien, encumbrance or other security interest over all or any of the assets which are, or are intended to be, the subject of the Facility Agreement); and
ii.
for the exercise of any of our rights, powers and remedies provided under the Facility Agreement, these Terms and Conditions, the security for the facilities or by operation of law.
11.3.21
You undertake that you will maintain with a reputable independent insurance company or underwriter, appropriate and adequate insurance in relation to your operations and assets to the extent that is typical for businesses carrying on the same or substantially similar business or operations.
Indemnities
11.4
You will, on demand, pay to or reimburse us on a full indemnity basis for all legal, valuation, documentation and other fees, the Costs (including any applicable VAT) incurred by us in connection with the Relevant Documents, including in respect of any amendment of any Relevant Document or any waiver, enforcement or preservation of our rights under any Relevant Document.
11.5
You will indemnify us on demand for any expense, loss or liability incurred by us as a consequence of any failure by you to comply with your obligations under a Facility Agreement comprised of the Relevant Documents.
11.6
If, for any reason, any amount payable under a Facility Agreement is paid or recovered (including by way of set-off) in a currency other than that in which it is required to be paid you will indemnify us on demand against (1) the full cost incurred by us of converting that sum into the currency in which it is required to be paid at the prevailing rate of exchange as we determine appropriate and (2) any shortfall in the amount to be paid under these Terms and Conditions following the application of such converted sum.
11.7
JLG is not obliged to exercise its rights of recovery arising under any of the Finance Documents in any particular order or priority.
SECTION 5 - DEFAULT AND NOTIFICATION
12
Act of Default
12.1
A Facility Agreement, even where expressed to be repayable over or within a specified period of time, may be terminated by us and we may demand early repayment at any time with or without notice to you if any of the following events occur, each of which is referred to as an ‘Act of Default’:
12.1.1
the failure by you or the Guarantor to make any repayment of principal or interest under any Relevant Document on the date it is due;
12.1.2
you or the Guarantor ceasing or threatening to cease to carry on business;
12.1.3
the death of you or the Guarantor (if either are a natural person);
12.1.4
the Guarantor notifies us that it no longer wishes to act as guarantor or that the Guarantee is to terminate or on a material change relevant to a Guarantor occurring which is in our reasonable opinion prejudicial to, or likely to be prejudicial to, our interests;
12.1.5
you are or the Guarantor is unable to pay your/his/her/its debts, or if you or the Guarantor makes or offers to make any voluntary arrangement or composition with your/his/her/its creditors;
12.1.6
in respect of a company Borrower or company Guarantor, the presentation of a petition for winding up or for the appointment of an administrator, or liquidator, the convening of a meeting for the purpose of considering a resolution or the passing of a resolution to wind up or the appointment of a receiver;
12.1.7
distress being levied against your or the Guarantor’s goods or on the same being taken in execution pursuant to any decree, judgement or order of a court of competent jurisdiction;
12.1.8
judgement being obtained against you or the Guarantor and remaining unpaid for a period of fourteen days from the date of such judgement
12.1.9
an event occurring or circumstances existing which, in our opinion, has or is likely to have a Material Adverse Effect with respect to you or the Guarantor;
12.1.10
the failure to provide any security specified in the Facility Agreement within any specified time frame;
12.1.11
the breach, non-performance or non-observance by you of any of the terms, conditions, or covenants attaching to the Facility Agreement;
12.1.12
discovery by us that any information supplied by you or the Guarantor is or was false, misleading or inaccurate in any material respect;
12.1.13
any Security held by us or any of our subsidiaries for your obligations to us or to any of our subsidiaries becomes enforceable
12.1.14
in our reasonable opinion any change takes place in any applicable law or regulation or in the interpretation thereof which would make it unlawful for us to maintain or give effect to our obligations in respect of the Facility Agreement;
12.1.15
on any change in the shareholding, management or control of a company Borrower or company Guarantor which, in our reasonable opinion, is prejudicial to, or likely to be prejudicial to, our interests;
12.1.16
a receiver, administrative receiver, administrator or similar official is appointed in respect of any of your property or that of the Guarantor or mortgagor or any of their respective subsidiaries or if any mortgagee attempts to take possession of such property;
12.1.17
Security provided becomes unenforceable or inadequate and you do not provide replacement or additional Security to our satisfaction or if we receive notice of the creation of any further charge, encumbrance or disposition relating to the security given for the Facility Agreement, or any part of it, and such charge, encumbrance or disposition has been created without our prior written consent;
12.1.18
any other of yours or the Guarantor’s Indebtedness is not paid or becomes due or capable of being declared due, prior to its stated maturity;
12.1.19
you or the Guarantor are in breach of any other agreement with us or any other company within our Group of companies or with any other lender;
12.1.20
you exceed the Account Limit;
12.1.21
any Borrowed Money is not paid when due nor within any originally applicable grace period;
12.1.22
any Borrowed Money becomes due, or capable of being declared due and payable, prior to its stated maturity by reason of an Act of Default (however described);
12.1.23
any commitment for any Borrowed Money is cancelled or suspended by a creditor of the Borrower by reason of an Act of Default (howsoever described);
12.1.24
any of your creditors or those of the Guarantor becomes entitled to declare any Borrowed Money due and payable prior to its stated maturity by reason of an Act of Default (howsoever described);
12.1.25
you fail to comply with all applicable environmental laws and regulations and/or obtain, maintain and ensure compliance with all requisite environmental licences and/or implement procedures to monitor compliance with and to prevent liability under any environmental law;
12.1.26
any failure by you to notify us of a Notifiable Event.
13
Notifiable Events
You will notify us of a Notifiable Event within two Business Days of becoming aware of such event. You will in any event be deemed to have become aware within seven days of the occurrence of such event.
14
Consequences of an Act of Default
14.1
If you have a Facility Agreement with us and there is an Act of Default we will be entitled to do any of the following;
14.1.1
cancel the Facility Agreement and any commitment to you under the Facility Agreement will be treated as being at an end;
14.1.2
notify you that accrued interest and all other amounts accrued or outstanding under the Relevant Documents and any amount outstanding on the Account are immediately due and payable, at which point they those amounts will become immediately due and payable;
14.1.3
serve a Termination Notice on you;
14.1.4
require you to provide Cash Cover;
14.1.5
charge you interest for the outstanding amount under any Facility Agreement at the Default Interest Rate for so long as the relevant Act of Default remains outstanding;
14.1.6
enforce any of our rights under the Relevant Documents;
14.1.7
levy an administration charge for default together (in our absolute discretion) with default interest;
14.1.8
enforce our rights under any Debenture; or
14.1.9
enforce our rights against the Guarantor under any Guarantee.
14.2
We will be entitled to assess whether any Act of Default is capable of remedy and may, in our discretion, require you to remedy that Act of Default. Any Act of Default remedied by you within any prescribed time frame will be considered to have been remedied when we notify you that is has been remedied and, if remedied to our reasonable satisfaction no further action will be taken with respect to that Act of Default.
SECTION 6 - DATA PROTECTION, ALIENATION AND COMMUNICATION
15
Data Protection
15.1
We will observe the requirements of the GDPR in the preservation of the integrity and security of any Data provided by you or any Guarantor. Details of how we do this can be found in our Privacy Policy which is published on our website at https://www.just-cashflow.com. Prior to entering into this agreement, or any separate agreement (such as a guarantee), any ‘Data Subjects’ (being any individuals providing Data to us) are deemed to have read the Privacy Policy and to be aware of his/her rights. The Privacy Policy is deemed to be incorporated by reference into these Terms and Conditions. For the avoidance of doubt you and the director/s hereby authorise us to disclose all information relevant to the Facility Agreement to the Guarantor(s) from time to time and to relevant credit reference agencies and other data bureaus.
15.2
In the event of termination of a contractual relationship we will (unless otherwise permitted or required by law for anti-money laundering or other lawful purposes) when directed to do so by an owner or by a Data Subject erase all Data and all copies of any part of the Data from our systems. Where such Data is retained for the purpose of third parties with the right to require its retention we will act in accordance with our obligations with regard to the erasure and destruction of Data in accordance with the GDPR.
15.3
We agree to comply and have adequate measures in place to ensure that our staff complies at all times with the provisions and obligations contained in (as amended from time to time):
15.3.1
The GDPR and any UK enabling or adoptive legislation;
15.3.2
The Telecommunications (Data Protection and Privacy) (Direct Marketing) Regulations 1998 and any applicable amendments thereto;
15.3.3
Where applicable, The Consumer Protection Distance Selling Regulations 2000 and any applicable amendments thereto;
15.3.4
The Freedom of Information Act 2000.
15.4
Nothing in a Facility Agreement or other Agreement will oblige any person to disclose any Data to us if do so would be a breach of the Data Protection Legislation.
15.5
In fulfillment of our obligations under the GDPR we will have in place and will maintain at all times information processing and retention standards which will deal comprehensively with:
15.5.1
the protection of the confidentiality, integrity and security of all and any Data supplied to us by an owner and/or a Data Subject;
15.5.2
the audit and accounting procedures to deal with the requirements of this paragraph;
15.5.3
the reliability and training of staff to ensure awareness of (and compliance with) their obligations under this paragraph;
15.5.4
any other measures and procedures to ensure that our obligations under this paragraph are met.
15.6
We will take all reasonable and practicable steps to ensure that all our agents, partners, suppliers and sub contractors comply with the provisions set out above whenever they are processing Data.
16
Assignment and Disclosure
16.1
You may not assign, transfer or otherwise deal any of your rights or obligations in respect of a Facility Agreement or these Terms and Conditions.
16.2
We may (1) assign any of our rights or benefits and/or (2) transfer by novation any of our obligations, under any Finance Document to another financial institution or to a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities and other financial assets or to any other person or persons and/or (3) otherwise deal with our rights, benefits and/or obligations under the Finance Documents, in whole or in part.
16.3
We may enter into any sub-participation or any trust or contractual arrangement (or any other transaction under which payments are to be made by reference to a Facility Agreement, with any person in relation to a Facility Agreement.
16.4
We may disclose any information obtained at any time from whatever source relating to any Relevant Person, a Facility Agreement or any Finance Document to (1) any of our associated companies (2) any actual or prospective assignee, transferee or participant, or persons with whom we enter into any such dealings (3) our auditors, advisers or applicable regulatory authorities, rating agencies and investors or any other person who enters or proposes to enter into any transaction with us in relation to a Facility Agreement or any other Finance Document (4) any other person in connection with a securitisation of all or any part of our rights under a Facility Agreement and any other Finance Document or (5) anyone who needs such information in respect of such assignation, transfer, dealing or securitisation.
16.5
You undertake to execute and to use your best endeavours to procure that any other Relevant Person executes, all documents (including amendments to this letter and any other Finance Document) that we may reasonably require to give effect to such an assignation, transfer, dealing or securitisation and to ensure any related guarantee or security (if applicable) is also properly transferred.
17
Communications
17.1
Unless specifically agreed between the parties or otherwise provided for in any other Relevant Document, each notice, consent and other communication in respect of a Facility Agreement will be:
17.1.1
in writing (which includes by email and fax);
17.1.2
sent to the address, email address or fax number most recently designated for this purpose by the recipient;
17.2
Notices or communication will be deemed effectively served or received;
17.2.1
when sent to or served on you; when left at the relevant address, or two Business Days after it is posted to the relevant address or, in the case of a fax, on receipt by us of a fax confirmation sheet or, in the case of email, on receipt of the ‘read’ receipt; and,
17.2.2
when sent to or served on us only on actual receipt of service by us as evidenced by a written receipt.
17.3
If the time of service or transmission of any communication or notice under these Terms and Conditions does not fall on a Business Day, the communication or notice will be deemed effective on the first Business Day thereafter.
SECTION 7 – MISCELLANEOUS
18
The Guarantor
18.1
The Guarantor is required to seek independent legal advice prior to the execution of any Guarantee. If the Guarantor waives its/his/her right to such independent legal advice it must inform us in writing. We may decline to enter into a Facility Agreement in such circumstances.
18.2
You should ensure that, when entering into a Guarantee, any Guarantor obtains a certification from its independent legal adviser confirming that the Guarantor understood the material produced in connection with the Guarantee, the Facility Agreement and these Terms and Conditions and the implications of entering into the Guarantee.
19
Severability
If any provision of a Facility Agreement is or becomes illegal, invalid or unenforceable, the legality, validity or enforceability of the remaining provisions will not be affected or impaired. Any failure by us to exercise, or delay in exercising, any right or remedy will not constitute a waiver of that right or remedy.
20
Counterparts
The Finance Documents may be executed in any number of counterparts, each of which when executed will constitute a duplicate original, but all the counterparts will together constitute one agreement. No counterpart will be effective until each party has executed at least one counterpart.
21
Third Party Rights
A person who is not a party to a Facility Agreement will have no rights pursuant to the Contracts (Rights of Third Parties) Act 1999 to enforce any part of such agreement or these conditions.
Waiver and variation
22
No delay by us in enforcing or expressing any right, either arising out of a Facility Agreement or any right in respect of any breach thereof by you, will constitute a waiver of such right and be claimed as such by the Guarantor.
23
No waiver by us of any breach of your obligations under a Facility Agreement will be treated as a waiver of any other prior or subsequent breach.
24
Any variation of any provision of a Facility Agreement must be effected in writing and issued by us.
Jurisdiction and governing law
25
These Terms and Conditions and any Finance Documents are subject to English law and to the exclusive jurisdiction of the courts of England and Wales.
PART II – FACILITY ACCOUNT MANAGEMENT
1.
Additional Definitions
For the purpose of this Part II of these Terms and Conditions the following additional terms shall have the meaning ascribed to them herein;
1.1
‘Cash Requirement Notification’ will mean your cash requirements to be drawn down by you for any week during the Term;
1.2
‘Balance’ will mean the balance on the Account from time to time;
2.
Management of the Account
2.1
You must at all times during the Term;
2.1.1
maintain your Account within the Account Limit;
2.1.2
make all payments that fall due to be made into the Account on the due date;
2.1.3
generally maintain your Account in a responsible manner and in accordance with the purpose for which the Facility was created.
3.
Borrowing in excess of the Account Limit
3.1
You may make a request for additional borrowing.
3.2
If we agree to such we may impose such conditions as we see fit in our absolute discretion.
4.
Invoicing
4.1
Interest payable during each week of the Term will be posted on the Monday of the following week.
4.2
Any posting as above will be paid on the Wednesday following its issue either by payment into the Account or by deduction by us from the Account.
4.3
Invoices will be issued by us to you by e-mail only and will be deemed delivered once sent.
5.
Cash Requirement Notification
Notifications for funds required must be received by us before 16:00hrs on any Business Day. Any request received after 16:00hrs will automatically be processed the next Business Day. We will action forecast requirements daily on Business Days only.
PART III – PROVISIONS RELATING TO REAL PROPERTY
1.
MISCELLANOUS RIGHTS AND PROVISIONS
The following provisions apply to any Mortgage granted as a requirement of the Facility Agreement.
Insurance
1.1
You must keep the Property insured under a comprehensive index linked buildings insurance policy with a reputable insurance company against all normal risks, including flood and any other risk which we reasonably require.
1.2
The policy must;
1.2.1
be maintained until the Mortgage has been redeemed;
1.2.2
be for the full insurance reinstatement value of the Property;
1.2.3
contain a mortgagees' protection clause and have our interest noted.
1.3
Whenever requested you must produce to us satisfactory proof that the policy is paid up and in force.
1.4
If you are in breach of the above provisions we are entitled (but not required) to insure our interest in the Property and add the costs of doing so (including the cost of the premium) to the Facility.
1.5
If any claim is made on such insurance policy any money received by you will be held on trust for us. We may elect in our discretion whether such proceeds will be applied to rebuilding the Property or in reduction of the Debt.
Protection of the Property
1.6
During the Term, you will;
1.6.1
maintain, keep in repair and look after the Property so that it keeps its value as security for the Facility;
1.6.2
immediately notify us of any notice served in respect of the Property;
1.6.3
execute a new charge in respect of any new or increased interest which you acquire in the Property;
1.6.4
not demolish or alter the Property or grant rights in the Property to anyone, or create or allow to be created any further charge or mortgage over it, or allow anyone to get rights in it or do anything which would devalue it or make it more difficult or expensive to insure the Property or which could invalidate any insurance over the Property.
Power of Attorney
1.7
You hereby irrevocably appoint us (and any receiver appointed by us) for the purpose of this security as your attorney to do the following in your name;
1.7.1
to receive any money due in respect of the Property and to use it to reduce the Debt;
1.7.2
to do any act which you as owner would be entitled to do.
PART IV - SCHEDULE OF COSTS
Initial costs
Event Cost
Account set up costs Within the arrangement fee
Registration of debenture Within the arrangement fee
Account Management
Event Cost
Standard correspondence with customer Within monthly management fee (if applicable) or otherwise at £25 per event
Standard telephone calls with customer Within monthly management fee (if applicable) or otherwise at £25 per event
Extension of the RCF Either by reference to the arrangement fee for the extension, or a fixed fee of £250, whichever is the greater
Payment request processed manually £100
Statement fee £10
Non DD payment processed £25
Request for external valuation Cost plus admin fee of £100
Administration of overpayments 1% of the overpayment or £100 whichever is the greater
Non-payment to an RCF account for a period exceeding 10 days £150
Non-payment to an BB / BA account for a period exceeding 40 days £150
Irregular and Default events
Event Cost
Solicitors costs in recovery proceedings Issue fee and fixed costs per court allowance; solicitors costs as assessed if not agreed
Application for order for sale Issue fee and fixed costs per court allowance; solicitors costs as assessed if not agreed
Enforcement of order for sale Issue fee and fixed costs per court allowance; solicitors costs as assessed if not agreed
End of account
Event Cost
Removal of debenture £25.00
Release of securities £50 per instrument

E&OE