Terms and Conditions
These Terms and Conditions apply where applicable in the context to all;
- (a)Revolving Credit Facilities (‘RCF’)
- (b)Pay Down Facilities (or derivations thereof) (‘PDF’)
- (c)Business Plus Facilities (‘B+’)
- (d)Portfolio Builder Facilities (‘PBRCF’)
- (e)Business Accelerator (‘BA’)
which are or were extant as at 1st August 2018 and/or are created after that date. Where there is conflict between any specific facility agreement and these Terms and Conditions the provisions of the specific Facility Agreement will prevail. In all other respects these terms and conditions will govern each type of facility issued. They can be found at http://justcashflow.com/terms. For all purposes publication of these Terms and Conditions posted on to the above website on 31st August 2018 is deemed to be both actual and constructive notice to all customers of the JLG Group plc of the current terms applicable to the above types of facilities.
The use of the term ‘JLG’ throughout these terms and conditions shall be equally applicable to facilities issued by Just Cash Flow PLC and Just Bridging Loans PLC
They can be found at https://www.just-cashflow.com/terms
PART I GENERAL CONTRACTUAL PROVISIONS
- Definitions and Interpretation
- The following terms shall have the meaning ascribed to them herein;
- ‘Act of Default’ shall mean any action, inaction, default or breach of the provisions of this agreement; an act of default entitles JLG to serve written notice upon the Borrower calling in all or part of the Debt at the date of such notice;
- ‘Account’ shall mean the account in the name of the Borrower with JLG out of which draw-down occurs and into which payments are made to the credit of the Borrower; ‘Account Limit’ shall mean the figure specified in paragraph 3.1 of a Facility Agreement;
- ‘Borrower’ shall mean the person party to a Facility Agreement;
- ‘Business Day’ shall 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;
- ‘Conditions Precedent’ shall mean the documents and evidence listed at paragraph 3 of a facility letter to be provided to JLG as conditions precedent to the availability of the facility to be made available to the Borrower;
- ‘Costs’ shall mean all costs incurred in the management, enforcement and recoveries pursuant to the Facility Agreement including those costs set out in the schedule and expenses set out in the third Schedule hereto;
- ‘Data’ shall mean information or data provided to JLG by any party to a facility letter to JLG and which is held by JLG for the duration of the Facility and beyond in the event that such Data is required for the purposes of the enforcement of any right arising hereunder;
- ‘Debenture’ shall mean the form of debenture contained in the Schedules to a facility letter or in case of agreements applicable to Borrowers registered in Scotland a bond and floating charge in standard form;
- ‘Debt’ shall mean at any time the total amount of the Facility drawn down by the Borrower and standing to the debit of the Borrower on the Account together with all other fees or charges payable hereunder whether pursuant to an Act of Default or otherwise;
- ‘Draw Down’ shall mean the funds drawn by the Borrower out of the Account
- ‘Facility Agreement’ shall mean an agreement entered into between the parties named therein consisting of the Relevant Documents; the term ‘Facility’ shall include an RCF, B+ and a PDF, the type of facility being specified in the relevant facility letter. The term ‘Facility Letter’ shall mean the letter by which a Facility is offered to a Borrower
- ‘Finance Document’ shall mean any document entered into or issued hereunder which is Instrumental in the issue of the Facility Agreement and the creation of documents ancillary thereto
- ‘Interest Rates’ shall mean the daily rates specified in a facility letter being, (a) the Discounted Standard Rate; (b) the Standard Rate; (c) the Default Rate; and interest shall be payable to the Account (including accrued interest thereon) from time to time at the applicable interest rate;
- ‘Guarantee’ shall mean any personal guarantee and indemnity (by deed or otherwise) by which the person named therein, agrees to guarantee and indemnify JLG against all breach or non observance by the Borrower of its obligations under a Facility Agreement:
- ‘Guarantor’ shall mean any person (corporate or individual) entering into a guarantee pursuant to a Facility Agreement;
- ‘Merchant Service Provider’ shall mean any entity which provides merchant services to include the issue, maintenance and working of a Payment Card ancillary to a Facility Agreement;
- ‘Notifiable Event’ shall mean any event the happening of which affects (or might by its nature) affect the security of JLG hereunder, constitute an Act of Default or otherwise impair the ability of the Borrower to fulfil its obligations hereunder;
- ‘Payment Card’ shall mean a card to be issued by the Merchant Service Provider pursuant to any Merchant Service Provider Agreement between the Merchant Service Provider and the Borrower;
- ‘Partner’ shall mean any joint venture entity with which the Borrower/Guarantor is in business;
- ‘Relevant Document/s’ shall mean (1) any facility letter (2) any schedules thereto, (3) all documents under which any person (including the Borrower) grants security or issues a guarantee, in respect of the Borrower’s 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’ shall mean (1) the Borrower (2) any other person who enters into a Relevant Document (3) any subsidiary of the Borrower, and (4) a partner;
- ‘Security’ shall 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; in relation to a Guarantor it includes the registration of a restriction or notice over real property by way of legal or equitable charge or otherwise;
- ‘Term Date’ shall mean the term of a Facility Agreement or such other date specified in a notice served upon the Borrower by JLG arising from an Act of Default;
- ‘Unauthorised Borrowing’ shall mean account activity which results in an Account exceeding the Account Limit.
- “guarantee” (other than in respect of any guarantee issued or to be issued by JLG) 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;
- “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);
- Publication of the Terms and Conditions
These Terms and Conditions are published for all purposes on the JLG website at https://www.just-cashflow.com. Parties to any agreement with JLG are deemed to have accessed such website for the purpose of considering and understanding them and will expressly certify and confirm that they have done so in any formal agreement to be entered into.
- Hierarchy of terms
In the event of inconsistency between a Facility Agreement and these terms and conditions the provisions of the Facility Agreement shall prevail.
PAYMENTS, REPAYMENT AND CANCELLATION
- All payments (howsoever tendered) will be made:
- in full without set off or counter-claim in cleared funds to be received by JLG no later than 16.00 hours (or such other time as notified by JLG to the Borrower) on the due date for payment; and,
- free of any deduction or withholding for or on account of tax unless the Borrower is required by law to make such a deduction or a withholding in which case the amount of the payment to JLG will be increased to the extent necessary to ensure that JLG receives a sum equal to that which it would have received had no deduction or withholding been made.
- 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 hereunder post judgment) and be calculated on the basis of the actual number of days elapsed and a year of 365 days.
- The applicable rate of interest payable by the Borrower from time to time shall be determined by reference to the Relevant Documents.
- All notifications, determinations and calculations given or made by JLG pursuant to a Relevant Document will be conclusive and binding except in any case of fraud or manifest error.
- In the event of default of payment of any sum falling due for payment by the Borrower to JLG, JLG shall be entitled to deduct such sum from the Account even if by so doing the Account Limit is exceeded and a consequence of such deduction is the applicability of a higher rate of interest.
- Payment to any Merchant Service Provider will not constitute repayment of the Debt.
Repayment, Cancellation and Extension
- Repayment, Cancellation and Extension
- Any notice under the provisions of this paragraph 3 may be served concurrently on the Borrower and any Guarantor; failure on the part of JLG to do so will not negate or affect any party’s liability.
- All amounts outstanding under or in respect of the Facility Agreement are repayable by the Borrower or the Guarantor (as appropriate) forthwith in full and without deduction or set off on whichever is the sooner of;
- the Term Date by the operation of law; or,
- the date specified in a written notice by JLG consequential on an Act of Default or other event constituting material breach of contract; or,
- the service of a written notice of cancellation of the Account by JLG.
- Any demand for repayment served by JLG consequential upon service of notice under clauses 3.2.2 and 3.2.3 may at the sole discretion of JLG relate to a part or the whole of the Debt. If it relates to part only, the provisions of the Relevant Document/s. shall continue to apply mutatis mutandis to the remainder of the Debt in existence as at the date of such notice in respect of such part.
Cancellation of the Facility Agreement
- On the Term Date (or if JLG makes a demand for repayment in respect of the Facility Agreement pursuant to paragraph 3 above) the Facility Agreement shall be withdrawn and be no longer available for Draw Down. Such withdrawal shall be referred to as ‘cancellation’ of the Facility Agreement in which case Relevant Documents shall remain in full force and effect for the purpose of the enforcement of rights and obligations accruing thereunder.
- Cancellation of the Facility Agreement shall not in any manner affect the right of JLG to recover the Debt hereunder from either the Borrower or the Guarantor.
Extension and amendment
- In the event that JLG has agreed in writing to extend or renew the Facility Agreement the Facility Agreement shall be available until the Term Date specified in writing in such extension or renewal instrument.
- In the event of any extension or amendment to the Facility Agreement the Guarantors shall agree to vary the Guarantee so as to extend its effect to include the term or amount of the revised Facility Agreement.
Consequences of a demand for repayment or cancellation
- On the sooner of whichever occurs first;
- the Term Date; or
- the service of a written notice by pursuant to clause 3.2.2; or
- cancellation of the Facility Agreement,
all amounts outstanding on the Account or otherwise specified in a formal demand or notice served by JLG shall be immediately due and payable by the Borrower and/or the Guarantor as appropriate.
- JLG may, at any time after the service of a notice or demand for repayment or cancellation, require the Borrower to provide JLG with cash cover (and suitable security in respect of such cash cover in respect of all outstanding liabilities to JLG whether present or future, actual or contingent) whereupon the Borrower will comply with such demands.
- The primary liability of the Borrower to JLG for the Debt shall not be affected by any Security granted by a Guarantor unless and until such security shall be realised and converted to cash for payment or part payment of the Debt but only to the extent that the Borrower shall remain liable for any balance of the Debt unpaid thereby.
- Nothing herein affects the continuing liability of a Guarantor arising under a Guarantee until all proper liabilities arising thereunder have been satisfied in full.
TERMINATION, CANCELLATION AND EXTENSION
Termination for Cause
- Without prejudice to the rights of JLG to call in the Debt or cancel a Facility Agreement, JLG may terminate the Facility Agreement by written notice given to the Borrower where:
- the Borrower commits a fundamental breach of the Facility Agreement which JLG reasonably considers is not capable of remedy; and/or
- the Borrower has committed an Act of Default which remains unresolved seven days after the date of such notice; and/or 4.1.3 the Borrower is in breach of any agreement with the Merchant Service Provider; and termination of the Facility Agreement shall occur seven days after the date of such notice.
- JLG may terminate the Facility Agreement immediately by written notice to the Borrower if -
- the Borrower passes a resolution or the court makes an order that it should be wound up or that an administrator be appointed, or if the Borrower makes a composition or an arrangement with its 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
- 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 him or her or makes any composition or arrangement with or for the benefit of his or her creditors, or purports to do so.
Termination for convenience
- The Borrower shall be entitled to serve written notice of its intention to terminate the Facility Agreement at any time during the term whereupon JLG shall provide a statement of the Account to the date specified by the Borrower for redemption of the Debt (‘the redemption date’).
- The Borrower shall repay to JLG the Debt in full on the redemption date whereupon the Facility Agreement shall be deemed to have been cancelled.
- Interests, costs and charges incurred during such notice period shall continue to accrue to the Account until the redemption date.
- In the event that the redemption date passes without payment of the Debt in full interest shall continue to apply at the Default Rate until the date of actual payment of the Debt in full.
Effect of Termination or Cancellation
- Effect of Termination or Cancellation
- Termination or cancellation of the Facility Agreement shall not affect any obligation or liability of any party which has accrued as at the date such termination or cancellation occurs.
- Except in respect of all accrued rights as at the date of termination or cancellation no party shall be under any further obligation to any other post termination or cancellation unless there subsists any outstanding liability on the part of the Borrower.
Extension of the Term of the Facility Agreement or the Account Limit
- Extension of the Term of the Facility Agreement or the Account Limit
- By written agreement between the parties the Facility Agreement may be extended either (a) beyond the Term or (b) in respect of the Account Limit.
- No such de facto extension beyond the Term or the Account Limit (‘unauthorised extension’) which is not recorded in writing is effective so as to bind JLG but the Borrower shall be such liable for any liability arising above the Account Limit in respect of such unauthorised extension.
- In the case of an unauthorised extension (such as in the case of temporary excess beyond the Account Limit by the application by deduction of charges or interest to the Account) then any further sums advanced by JLG to the Borrower shall be deemed to have been advanced on the basis of the existing facility letter and be recoverable as such.
- Any deemed acquiescence on the part of JLG(in permitting the Term to be extended or the Account Limit to be exceeded shall not be taken to be approval or any other indication that the Term shall be extended or the Account Limit is extended beyond that authorised in the facility letter.
- Such unauthorised extension which causes the Account Limit to be exceeded is an Act of Default.
- In the event that JLG requires to enforce its rights of recovery of the Debt then as against each of the Borrower and any Guarantor JLG shall forthwith be entitled to recover by enforcement
- as against the Borrower;
- of the Facility Agreement (comprising all Relevant Documents);
- any Debenture.
- as against a Guarantor;
- of the Guarantee and any Security
and otherwise by all means and to the maximum extent permitted by law.
- Nothing in the foregoing sub clauses of this paragraph shall require that JLG shall not be entitled to enforce any Guarantee and/or Security against the Guarantor unless and until it shall first have sought and exhausted recovery against the Borrower (pursuant to any debenture or otherwise) Provided That the Guarantor shall be given due credit for any sums recovered by action or otherwise against the Borrower.
- In the event that JLG seeks recovery of the Debt by means of enforcement of the Debenture then save for the establishment of the Debt the provisions of the Debenture shall apply in respect of such recovery proceedings but not so as to preclude concurrent recovery proceedings under the Facility Agreement or pursuant to the Guarantee and/or any Security.
- In the event that JLG seeks recovery of the Debt by means of enforcement of any Guarantee and/or any Security then save for the establishment of the Debt calculated in accordance with the Relevant Documents the provisions of such Guarantee and/or any Security shall be the only relevant instrument by which recovery is sought as against such individual or entity.
- The registration of any interest, restriction or notice in the real property of a Guarantor shall be without prejudice to all other rights of recovery available to JLG hereunder.
INFORMATION, WARRANTIES INDEMNITIES AND FINANCIAL COVENANTS
- Provision of information
- At quarterly intervals throughout the term the Borrower shall (if required to by JLG providing one month’s prior written notice) deliver management accounts to JLG.
- Within one month of the end of the Borrower’s financial year the Borrower shall (if required to by JLG providing one month’s prior written notice) deliver draft accounts for the preceding year to JLG.
- Within six months of the end of its financial year a copy of the latest financial statements (consolidated where the Borrower has a subsidiary or subsidiaries), together with the financial statements of any subsidiary or subsidiaries of the Borrower shall (if required to by JLG providing one month’s prior written notice) be delivered to JLG for such year;
- The Borrower will promptly deliver to JLG, on request, such information about any relevant person or the business, operations, assets, financial condition or prospects of any relevant person as JLG may reasonably require.
- The Borrower hereby irrevocably authorises JLG to disclose information relevant to the Facility Agreement to the Guarantor upon request at any time during the Term even if such Guarantor is no longer at the material time connected with the Borrower.
Preparation of Information
- Preparation of Information
- In the preparation and provision of information pursuant to paragraph 8.1 above the Borrower will ensure that:
- all management accounts shall include a profit and loss account, prepared in respect of the Borrower’s financial year to date and a cash flow forecast for the following 3 months, and both shall 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
- if the Borrower’s quarterly budget is required to be delivered to JLG at any time such quarterly budget shall include as a minimum standard;
- a projected profit and loss account (broken down on a week by week basis);
- a cash flow forecast (broken down on a week by week basis); and
- projected calculations in respect of the financial covenants set out herein.
- JLG reserves the right to engage auditors to verify any accounts by an independent third party auditor and the Borrower shall cooperate with such audit.
Warranties, Undertakings and Indemnities
- Warranties, Undertakings and Indemnities
- In relation to the Facility Letter
- The Borrower warrants that in relation to its entry into, execution and performance of a Facility Agreement and without prejudice to the content and or requirement of any specific facility letter;
- by reference to its memorandum and articles of association and its objects clause it is fully authorised and empowered;
- all required consents, resolutions and approvals, both internal and external, have been obtained; if there is a prior debenture then the Borrower knows no reason why any debenture in favour of JLG should not be entered into;
- that neither the Borrower, its directors or any Guarantor are aware of any fact actually or potentially adverse to the Borrower’s or any Guarantor’s ability to perform its or their obligations under a Facility Agreement.
- the Borrower, its directors/partners and Guarantors warrant that prior to the creation of a Facility Agreement they will have read all Relevant Documents in their entirety and in full knowledge of its terms will declare that they proceed on the bases that; and,
- they know of no reason why a Facility Agreement (having regard to the totality of its provisions and the obligations created hereby) should not be entered into;
- no circumstance existed immediately prior to execution of a Facility Agreement that constituted a misrepresentation (inadvertent or otherwise) the effect of which might cause JLG not to enter into a Facility Agreement; and,
- the Borrower (through its directors/partners) is competent to enter into a Facility Agreement;.
- In relation to the Borrower and its assets
- The Borrower hereby warrants that;
- it has good title to, or valid leasehold interests in, all its real and personal property material to its business, except for minor defects in title that do not interfere with its ability to conduct its business as currently conducted or to utilize such properties for their intended purposes, or where such defects could not otherwise reasonably be expected to have an adverse effect; and,
- the Borrower and its subsidiaries owns, or is licensed to use, all trademarks, trade names, copyrights, patents and other intellectual property material to its business, and the use thereof by the Borrower and its subsidiaries does not infringe upon the rights of any other person; and,
- there are no actions, suits or proceedings by or before any arbitrator or authority pending against or, to the knowledge of the Borrower or its directors threatened against or affecting the Company or any of its subsidiaries as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, could reasonably be expected, individually or in the aggregate, to result in an adverse effect on the Company and its abilities to perform its obligations hereunder.
- The Borrower hereby undertakes that it will (and, if it has a subsidiary or subsidiaries, will ensure that such subsidiary or subsidiaries will) at all times:
- maintain with a reputable independent insurance company or underwriter, appropriate and adequate insurance in relation to its operations and assets and to the extent as is usual for entities carrying on the same or substantially similar business or operations;
- If required by JLG the Borrower shall note its interest on the policy;
- permit any valuer instructed by JLG to inspect and value any assets comprised in JLG’s security at any time and allow access to the relevant assets and all information held by it and its subsidiaries (if any) in respect of those assets during business hours following notice from JLG, in each case at the cost of the Borrower.
- The Borrower hereby guarantees to JLG that neither it nor its subsidiaries will create any debt or enter into any obligation or commitment after the date hereof without the prior written approval of JLG unless such borrowings or commitment in respect thereof are in existence as at the date hereof.
- The Borrower will, on demand, pay to or reimburse JLG on a full indemnity basis for all legal, valuation, documentation and other fees, the Costs (including any applicable VAT) incurred by JLG in connection with the Relevant Documents, including in respect of any amendment of any Relevant Document or any waiver, enforcement or preservation of JLG’s rights under any Relevant Document.
- The Borrower will indemnify JLG on demand for any expense, loss or liability incurred by JLG as a consequence of any failure by the Borrower to comply with its obligations under a Facility Agreement comprised of the Relevant Documents.
- 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 the Borrower will indemnify JLG on demand against (1) the full cost incurred by JLG of converting that sum into the currency in which it is required to be paid at the prevailing rate of exchange as JLG determines appropriate and (2) any shortfall in the amount to be paid under this letter following the application of such converted sum.
- Financial Covenants
- The Borrower will ensure that at all times the following financial covenants are complied with:
- that the Borrower shall be managed in accordance with all principles of prudent corporate and financial management;
- that the management of the Borrower shall be conducted by the Directors/Partners;
- that all external advisers are formally appointed and fully qualified and competent in the post occupied by them.
- Breach of the covenants in this paragraph11 shall be both a Notifiable Event and an Act of Default.
DEFAULT AND NOTIFICATION
- Act of Default
- Events constituting an Act of Default are;
- any failure by the Borrower to make payments to the Account as and when they fall due;
- the happening of a Notifiable Event;
- any failure by the Borrower to notify JLG of a Notifiable Event;
- Failure to comply with the Financial Covenants in clause 11;
- Failure to provide any information due hereunder;
- breach of any obligation to repay the Debt or part thereof;
- an act of insolvency on the part of the Company, its directors, or the Guarantor or any of them;
- breach of the financial covenants herein;
- any attempt to notify Companies House that the sums due pursuant to any debenture have been satisfied when such is not the case;
- any attempt by a guarantor to remove a Unilateral Notice registered against the title to property in his or her name pursuant to the provisions of any Guarantee;
- any account movement which takes the Account beyond the Account Limit without the prior written approval of JLG.
- An Act of Default shall be notified in writing by JLG to the Borrower and/or the Guarantor.
- Upon service of a notice signifying an Act of Default the Borrower shall have a period of 7 days during which it may remedy the default; in case of remedy JLG shall withdraw such notice and the Borrower’s period of default shall be over without giving rise to the right of JLG to terminate the Facility Agreement for material breach of contract.
- For the avoidance of doubt during any period of default the interest rate applicable shall be the Default Interest Rate.
- Notifiable Events
- Without prejudice to the generality that the Borrower shall notify JLG of the happening of any event which may impact on its abilities to perform its obligations under a Facility Agreement, the following are specific examples of Notifiable Events;
- the use of the Facility Agreement for any other purpose than as prescribed in the Relevant Document.;
- any proceedings, statutory demand, demand for payment, calling in of any Facility Agreement, judgment or order, brought or made against the Borrower, any of its directors/partners or a Guarantor;
- any adverse change in the credit rating or standing of either the Borrower or its directors/partners or Guarantors;
- the filing of accounts which show a deterioration in profit before tax by comparison with the preceding equivalent period;
- notice of any act by any third party which imperils or might have the tendency to imperil, the financial safety or well being of the Borrower or any of its assets;
- any change in the constitution of the Borrower or its board of directors or management panel;
- any adverse change in the circumstances of a Guarantor;
- any alteration to the pre contract information supplied by the Borrower or the Guarantor to JLG as set out in any underwriter’s certificate annexed to a facility letter;
- the Borrower’s application for a payment card to the Merchant Service Provider being declined.
- The Borrower shall notify JLG of a Notifiable Event within two business days of the Borrower becoming aware of such event. The Borrower shall in any event be deemed to have become aware within seven days of the happening of such event.
DATA PROTECTION, ALIENATION AND COMMUNICATION
- Data Protection
- Any information and data ("Data") provided by the Borrower or any Guarantor (in which case the term ‘Data’ is deemed to be data personal to such individual guarantor described in the General Data Protection Regulations ‘GDPR’ as a ‘Data Subject’) (and or the Owner within the meaning of the Data Protection legislation to include the GDPR) is (a) provided by consent by the Owner and/or the Data Subject and (b) will be used by JLG directly or indirectly in the performance of a Facility Agreement or subsequent account management or any other activity lawfully permitted by the GDPR to be carried out. Such data shall remain at all times the property of the Owner and/or the Data Subject and shall be identified, clearly marked and recorded as such by JLG on all media and in all documentation.
- In the event of termination of a contractual relationship JLG shall (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 its systems. Where such Data is retained for the purpose of third parties with the right to require its retention it will act in accordance with its obligations with regard to the erasure and destruction of Data in accordance with the GDPR.
- JLG agrees to comply and have adequate measures in place to ensure that its staff complies at all times with the provisions and obligations contained in (as amended from time to time):
- The GDPR and any UK enabling or adoptive legislation;
- The Telecommunications (Data Protection and Privacy) (Direct Marketing) Regulations 1998 and any applicable amendments thereto;
- Where applicable, The Consumer Protection Distance Selling Regulations 2000 and any applicable amendments thereto;
- The Freedom of Information Act 2000.
- Nothing in a Facility or other Agreement shall oblige any person to disclose any Data to JLG if do so would be a breach of the GDPR.
- In fulfillment of its obligations under the GDPR JLG will have in place and will maintain at all times information processing and retention standards which will deal comprehensively with:
- the protection of the confidentiality, integrity and security of all and any Data supplied to JLG by an Owner and/or a data subject;
- the audit and accounting procedures to deal with the requirements of this paragraph;
- the reliability and training of staff to ensure awareness of (and compliance with) their obligations under this paragraph;
- any other measures and procedures to ensure that JLG’s obligations under this paragraph are met.
- JLG shall take all reasonable and practicable steps to ensure that all its agents, partners, suppliers and sub contractors comply with the provisions set out above whenever they are processing Data.
- JLG agrees to provide an Owner with such information and access to its premises (upon giving reasonable notice) as such Owner may reasonably require to satisfy itself that JLG is complying with the obligations referred to in this paragraph.
- JLG shall take all reasonable steps to ensure that all its agents, partners and sub contractors comply with the all the provisions set out above whenever they are processing Data ancillary to a Facility.
Alienation and Disclosure
- Alienation and Disclosure
- The Borrower may not assign, transfer or otherwise deal any of its rights or obligations in respect of a Facility Agreement.
- JLG may (1) assign any of its rights or benefits and/or (2) transfer by novation any of its obligations, under a Facility Agreement 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 its rights, benefits and/or obligations under a Facility Agreement, in whole or in part.
- JLG 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.
- JLG may disclose any information obtained at any time from whatever source relating to any Relevant Person, a Facility Agreement or any Relevant Document to (1) any of its associated companies (2) any actual or prospective assignee, transferee or participant, or persons with whom JLG enters into any such dealings (3) its auditors, advisers or applicable regulatory authorities, rating agencies and investors or any other person who enters or proposes to enter into any transaction with JLG in relation to a Facility Agreement or any other Relevant Document (4) any other person in connection with a securitisation of all or any part of JLG’s rights under a Facility Agreement and any other Relevant Document or (5) anyone who needs such information in respect of such assignation, transfer, dealing or securitisation.
- The Borrower undertakes to execute and to use its best endeavours to procure that any other Relevant Person executes, all documents (including amendments to this letter and any other Related Document) that JLG 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.
- 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:
- in writing (which includes by email and fax);
- sent to the address, email address or fax number most recently designated for this purpose by the recipient;
- Notices or communication shall be deemed effectively served or received;
- when sent to or served on the Borrower; when left at, or two Business Days after it is posted to, the relevant address or, in the case of a fax, on receipt by JLG of a fax confirmation sheet or, in the case of email, on receipt of the ‘read’ receipt; and,
- when sent to or served on JLG only on actual receipt of service by JLG as evidenced by a written receipt.
- If the time of service or transmission of any communication or notice hereunder does not fall on a Business Day, the communication or notice will be deemed effective on the first Business Day thereafter.
- In signifying its/his/her approval to the creation of a Facility Agreement the Guarantor shall be deemed to have understood all material produced in connection therewith (including these terms and conditions) and have satisfied itself/himself/herself of the meaning and binding effect of all such material.
- The Guarantor shall have taken independent legal advice prior to the creation of any Guarantee or security document and therefore be deemed to have entered into the guarantee and indemnity obligations willingly. If the Guarantor waives its/his/her right to such independent legal advice it shall inform JLG accordingly. JLG shall have the right to decline to enter into a Facility Agreement in such circumstances.
- Nothing in the creation of real property security in favour of JLG by a Guarantor in support of a Facility Agreement offends any provision of or ancillary to the Mortgage Credit Directive Order 2015 and by entering into any such security or consenting to the registration of any interest over real property registered in the name of a Guarantor the Guarantor is deemed to acknowledge such to be the position.
The Merchant Service Provider
- The position of a Payment Card ancillary to a Facility Agreement by a Merchant Services Provider shall comprise an agreement between the Borrower and the Merchant Services Provider to which JLG shall not be a party.
- Insofar as JLG may have nominated any particular Merchant Services Provider it shall not be deemed to adopt any liability in any manner howsoever arising for the provision of such service by the Merchant Services Provider or any loss or damage accruing.
- 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 JLG to exercise, or delay in exercising, any right or remedy will not constitute a waiver of that right or remedy.
Third Party Rights
- A person who is not a party to a Facility Agreement shall have no rights pursuant to the Contracts (Rights of Third Parties) Act 1999 (the "Act") to enforce any of par tof such agreement or these conditions.
- Nothing in the creation of a Facility Agreement shall be construed so as to create a partnership or joint venture between the parties or have the effect of making any employee of the Borrower a servant of JLG or of making any official of JLG an employee or servant of the Borrower. Neither of the Parties shall act or describe itself as the agent of the other, nor shall it make or represent that it has authority to make any commitments on the other's behalf.
Waiver and variation
- No delay by JLG in enforcing or expressing any right, either arising out of a Facility Agreement or any right in respect of any breach thereof by the Borrower, shall constitute a waiver of such right and be claimed as such by the Guarantor.
- No waiver by JLG of any breach of the Borrower's obligations under a Facility Agreement shall constitute a waiver of any other prior or subsequent breach.
- Any variation of any provision of a Facility Agreement must be effected in writing and issued by JLG. No purported variation by any other means shall bind JLG.
- No statement in any publication issued by JLG constitutes a term of the Facility Agreement or a representation in reliance upon which the Facility Agreement has been entered into.
Jurisdiction and governing law
- Any Facility Agreement is subject to English law and to the exclusive jurisdiction of the courts of England and Wales.
PART II – FACILITY ACCOUNT MANAGEMENT
- 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;
- ‘Cash Requirement Forecast’ shall mean the cash requirements of the Borrower to be drawn down by the Borrower for any week during the Term;
- ‘Balance’ shall mean the balance on the Account from time to time;
Management of the Account
- Management of the Account
- The Borrower shall at all times during the Term;
- maintain its Account within the Account Limit;
- make all payments that fall due to be made into the Account on the due date;
- generally maintain its Account in a responsible manner and in accordance with the purpose for which the Facility was created.
Borrowing in excess of the Account Limit
- Borrowing in excess of the Account Limit
- The Borrower may make a request for additional borrowing.
- if JLG agrees to such it may impose such conditions as in its absolute discretion it sees fit including any additional charges and variation in interest
- Interest payable during each week of the Term shall be posted on the Monday of the following week.
- Any posting as above shall be paid on the Wednesday following its issue either by payment into the Account or by deduction by JLG from the Account.
- Invoices shall be issued by JLG to the Borrower by e-mail only and shall be deemed delivered once sent.
Cash Requirement Forecasting
- Cash Requirement Forecasting
Forecast notifications for funds required must be received by JLG before 16:00hrs daily. Any request received after 16:00hrs will automatically be processed the next working day or as otherwise notified. JLG will action forecast requirements daily Monday- Friday only.
PART III – PROVISIONS RELATING TO REAL PROPERTY
MISCELLANOUS RIGHTS AND PROVISIONS
- In addition to any provisions contained elsewhere the following (in addition to being applicable herein in any event) are deemed incorporated into any Mortgage granted pursuant to the Facility Agreement the subject of these terms and conditions.
Management of the Account
- In addition to any provisions contained elsewhere the following (in addition to being applicable herein in any event) are deemed incorporated into any Mortgage granted pursuant to the Facility Agreement the subject of these terms and conditions.
- The Borrower 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 JLG reasonably requires.
- The policy must;
- be maintained until the Mortgage has been redeemed;
- be for the full Insurance Reinstatement Value of the Property;
- contain a mortgagees' protection clause and have JLG's interest noted.
- Whenever requested the Borrower must produce to JLG satisfactory proof that the policy is paid up and in force.
- If the Borrower is in breach of the above provisions JLG shall be entitled to insure its interest in the Property and add the costs of doing so (including the cost of the premium) to the Facility.
- If any claim is made on such insurance policy any money received by the Borrower shall be held on trust for JLG. JLG may elect in its sole discretion whether such proceeds shall be applied to rebuilding the Property or in reduction of the Debt.
Protection of the Property
- During the Term, the Borrower shall;
- maintain, keep in repair and look after the Property so that it keeps its value as security for the Facility;
- immediately notify JLG of any notice served in respect of the Property;
- contain a mortgagees' protection clause and have JLG's interest noted.
- execute a new charge in respect of any new or increased interest which the Borrower acquires in the Property;
- not to 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
- The Borrower hereby irrevocably appoints JLG (and any receiver appointed by it) for the purpose of this security as its attorney to do the following in the name of the Borrower;
- to receive any money due in respect of the Property and to use it to reduce the Debt;
- to do any act which the Borrower as owner would be entitled to do.
Appointment and Powers of a Receiver
- At any time and from time to time after JLG shall have demanded payment of any Debt or after any breach by the Borrower of any of the provisions of a Facility Agreement or the occurrence of an enforcement event or if requested by the Borrower, JLG may appoint by writing any person or persons (whether an officer of JLG or not) to be a receiver of all or any part of the Property and where more than one receiver is appointed they may be given power to act either jointly or severally.
- The Lender may from time to time determine the remuneration of the receiver and may remove the receiver and appoint another in his place.
- The receiver shall (so far as the law permits) be the agent of the Borrower (who shall alone be personally liable for his acts defaults omissions and remuneration) and shall have and be entitled to exercise all powers conferred by the Law and Property Act 1925 (as amended) in the same way as if the receiver had been duly appointed thereunder and by way of addition to but without limiting any general powers herein before referred to (and without prejudice to any of JLG’s powers) the receiver shall have power in the name of the Borrower or otherwise to do the following things namely:
- to take possession of collect and get in all or any part of the Property and for that purpose to take any proceedings as he shall think fit;
- to commence and/or complete any building operations on the Property and to apply for and obtain any planning permissions, building regulation approvals and any other permissions, consents or licences in each case as he may in his absolute discretion think fit;
- for the purpose of exercising any of the rights, powers, authorities and discretions conferred on him by or pursuant to a Facility Agreement or for any other purpose to borrow moneys from JLG or others on the security of the Property or otherwise on such terms as he may in his absolute discretion think fit;
- to provide such facilities and services for tenants and generally to manage the Property in such a manner as he shall think fit;
- if the Property is leasehold to vary the terms of or surrender the lease and/or to take a new lease of it or of any part of it on such terms as he shall think fit and so that any such new lease shall ipso facto become charged to JLG on the terms of any Facility Agreement so far as applicable and to execute a formal legal Mortgage over any such new lease in favour of the JLG in such form as JLG may reasonably require;
- to sell, transfer, assign, let or lease or concur in selling, letting or leasing the Property (either by public auction or private contract or otherwise) and the grant of any rights over the Property on such terms and conditions and for such consideration including without limitation shares, securities (of any other company) or other investments payable at such time or times as JLG may in its absolute discretion think fit;
- to vary the terms of, terminate, grant renewals of or accept surrenders of leases or tenancies of the Property in such manner and for such terms with or without a premium or other compensation or consideration including the payment of money to a lessee or tenant on a surrender with such rights relating to other parts of the Property and containing such covenants on the part of the Borrower or otherwise and generally on such terms and conditions as in his absolute discretion he shall think fit;
- to make any arrangements or compromise which JLG or he/she shall think fit whether in relation to any lease of the Property or to any covenants, conditions or restrictions relating to the Property or without limitation otherwise;
- to make and effect all repairs and improvements to the Property;
- to enter into bonds, covenants, commitments, guarantees, indemnities and like matters and to make all payments needed to effect, maintain or satisfy the same in relation to the Property;
- to settle adjust refer to arbitration compromise and arrange any claims, accounts, disputes, questions and demands with or by any person who is or claims to be a creditor of the Borrower or relating in any way to the Property;
- to effect such insurances of or in connection with the Property as he/she shall in his/her absolute discretion think fit;
- to appoint managers, officers, contractors and agents for the aforesaid purposes upon such terms as to remuneration or otherwise as he/she may determine;
- to do all such other acts and things as may be considered to be incidental or conductive to any of the matters or powers aforesaid and which he/she lawfully may or can do.
- Any moneys received by the receiver in the exercise of his/her powers under this Agreement and under general law shall be (so far as the law permits) applied by him as follows:
- in payment of the costs, charges and expenses of and incidental to his appointment and the exercise of all or any of his powers;
- in payment of his remuneration;
- in payment to JLG of moneys whether for principal, interest or otherwise in arrear or accruing or due under any Facility Agreement and any balance shall be paid to the person or persons entitled to it.
The Power to Lease
- Powers of leasing, granting tenancies, accepting surrenders of leases or granting licenses to occupy will not be exercisable by the Borrower without the previous consent in writing of JLG.
- The Borrower hereby authorizes (so far as any such authority is required) the transfer of any Mortgage by JLG to any person firm or company and after the transfer the transferee shall have the benefit of all covenants and provisions contained in any Mortgage or in a Facility Agreement and may at any time thereafter exercise all right and remedies of JLG hereunder.
Costs and Expenses
- All costs and expenses (including the cost of any legal proceedings) incurred by JLG in connection with any Facility Agreement and/or any Mortgage, or the collection of any monies due thereunder will be paid by the Borrower on the basis of full indemnity and will be recoverable from the Borrower on demand together with the application of interest at the default rate thereon from the date such sums became payable to the date of payment or judgment whichever comes first.
- 1.14 >
- JLG shall be entitled to recover from the Borrower on demand (and on an indemnity basis) fees in respect of any costs and expenses reasonably incurred by JLG pursuant to Facility Agreement;
- in determining whether any and if so what steps are required to remedy any actual or apprehended breach by the Borrower of any of the covenants and obligations arising under a Facility Agreement;1.14.2 in communicating with the Borrower or with anyone on its behalf or with JLG's own professional advisers in relation to any actual or apprehended breach by the Borrower of any of its covenants and obligations under a Facility Agreement;
- 1.14.3 >
- at the Borrower's request in respect of those services set out in Schedule IV at the rates set out therein.
- Any sum due under a Facility Agreement shall until payment be added to and form part of the Debt and become a charge on the Property.
PART IV - SCHEDULE OF COSTS
|Account set up costs||Within the arrangement fee|
|Registration of debenture||Within the arrangement fee|
|Standard correspondence with customer||Within monthly management fee|
|Standard telephone calls with customer||Within monthly management fee|
|Extension of the RCF||Either by reference to the arrangement fee for the extension or a fixed fee of £250|
|Drive by valuation||£150 and Vat|
Irregular and Default events
|Non standard telephone calls with customer||£15 per event|
|Meetings with customer||£50 per hour|
|IA 1 letter||£50.00 per event|
|IA 2 letter||£50.00 per event|
|Risk correspondence with customer||£25.00 per event|
|Instructing Solicitors in default cases||£100.00|
|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
|Removal of debenture||£25.00|
|Release of securities||£50.00 and VAT per instrument|