Published: 11 th August 2015 Version: 2.1

Transcription

1 INVOICE FINANCING (IF) CONDITIONS These invoice financing conditions (IF Conditions) shall govern and be incorporated into every invoice financing contract (IF Contract), and shall prevail over any terms or conditions (whether or not inconsistent with these IF Conditions) contained or referred to in any correspondence or documentation submitted by any IF investor (Investor) or IF borrower (Borrower) or implied by custom, practice or course of dealing. Each IF Contract forms a legally binding agreement between the Investors and Borrower and the relationship between the Parties shall be governed exclusively by this IF Contract. By clicking to accept these IF Conditions you acknowledge and agree to be bound these IF Conditions in respect all of your transactions conducted on Beehive. If you are entering into an IF Contract as an appointed representative of a partnership, company or other business you warrant that you are duly authorised to act on its behalf. Breach of this requirement may result in legal action being taken against you personally. 1. Introduction 1.1 Each time a Borrower s Finance Request (BFR) is fulfilled by successful Offers and subsequently accepted by the Borrower, an IF Contract shall be issued in respect of the resulting financing (Financing). Each IF Contract shall include these IF Conditions. In addition Borrowers will be separately provided with key IF contract terms (Key IF Contract Terms) which set out, among other things, the details of the Financing secured, the repayment schedule and the names and passport numbers of the relevant individual Investors. 1.2 Where Financing is made up of various parts (Financing Parts), a separate IF Contract shall formed for every Financing Part, between the Borrower of that Financing Part and each Investor which has lent the Borrower a Financing Part. 2. Repayment 2.1 The Borrower's obligation to make repayments to the Investors will be satisfied by the Borrower ensuring that the Financing is repaid to Beehive via either: a) The Borrower making the repayment to Beehive (Indirect Payment): Under this payment method, the Borrower s customers(customers) pay the Borrower for the invoices that have been Financed and the Borrower then settles the Financing with Beehive; or b) The Customers makings the repayment to Beehive (Direct Payment): Under this method, the Borrower gives their Customers our bank detail and the Customers pay us the full invoice amount c) and we then pay the Investors and pay the Borrower the excess (Surplus Payment) of the unfunded invoice less costs. 2.2 Under both methods, the Borrower can opt to pay off individual invoices within an Invoice Batch or the Total Invoice Batch early which will result in a pro rata reduction in the cost of financing (Cost of Financing). 2.3 The Borrower must also provide one undated cheque (Security Cheque) for the full amount of their credit limit (Credit Limit). 2.4 If, at any time during the term of the IF Contract, the authorised signatory who signed the cheque provided by the Borrower in accordance with clause 2.3 above, is no longer authorised to bind the Borrower for any reason whatsoever, the Borrower shall provide replacement cheques signed by a duly authorised signatory within three (3) working days of any such change to the authority becoming effective. 2.5 All repayments will be made to Investors without deduction of tax. 2.6 Where Financing is made up of various Financing Parts, each repayment paid by the Borrower will be pro-rated between the various IF Contracts, with reference to each Financing Part value and the Cost of Financing associated with that IF Part, that govern the various IF Parts and used: a) firstly to pay and any administration charges or other fees due to Beehive Group under the Beehive Terms and Conditions; and b) secondly to paying the current Cost of Finance and principal due in respect of the Financing. 3. Cost of Finance The Borrower agrees to pay the Investors the Cost of Financing on the Financing at the rate set out in the Key IF Contract Terms. The Cost of Finance shall be calculated at the outset of the finance period for the whole period up to the last Expected Payment Date of all invoices with the Invoice Batch being financed. 4. Early Repayment 4.1 Should the Borrower wish to repay the whole Invoice Batch or some invoices within an Invoice Batch early, it may do so. If the Borrower has opted for the Direct Payment then, provided that the Borrower s Beehive Client Account has sufficient funds, we will automatically calculate the Cost of Finance and repay the Inventors and Borrower the relevant amounts. If the Borrower has opted for Indirect Payment or the Borrower s Beehive Client Account does not hold sufficient funds, then the Borrower must contact us and we will inform them of the recalculated Cost of Finance. They must then transfer the principal and the Cost of Finance into our Beehive Client Account within 48 hours and we will credit the Investors for their investments. 1

2 5. Grace Period and Default 5.1 The Invoice Batch will set out the repayment date which is based off the last expected repayment date (Expected Repayment Date) of the invoices within the Invoice Batch. The Borrower must settle the Financing on or before the Expected Repayment Date. However, we allow a grace period (Grace Period) of up to 30 days for the Borrower to settle the Financing. The Cost of Financing is calculated on a daily rate and if a Borrower makes a repayment or part repayment late then we will adjust the Cost of Financing that the Borrower must pay to the Investors. 5.2 If a Financing Part and all associated costs is still unpaid after the Grace Period then the Financing Part will be in default. 6. Covenants 6.1 The Borrower covenants with Beehive Group that, as from the date of the IF Contract until all its liabilities under the IF Contract have been discharged: 6.2 The Borrower will deliver to Beehive Group: a) within ninety (90) days after the end of each of its financial years, its audited accounts (if such audited accounts are applicable to the Borrower); b) promptly, all notices or other documents dispatched by the Borrower to its shareholders (if any) or to its creditors generally; c) within sixty (60) days post issue, any updates to the Borrower s trade licence; and promptly, such financial or other information as Beehive Group may, from time to time, reasonably request. 6.3 The Borrower will: a) promptly, after becoming aware of them, notify Beehive Group of any litigation, arbitration or administrative proceedings or claims; b) promptly obtain all consents or authorisations necessary (and do all that is needed to maintain them in full force and effect) under any law or regulation to enable it to perform its obligations under the IF Contract and to ensure the legality, validity, enforceability and admissibility in evidence of the Financing in any relevant jurisdiction, including the United Arab Emirates; c) notify Beehive Group of any Event of Default promptly on becoming aware of its d) will carry on and conduct its business in a proper and efficient manner and will not make any substantial change to the general nature or scope of its business as carried on at the date of these IF Conditions. 6.4 If Beehive Group is obliged for any reason to comply with "know your customer" or similar identification procedures in circumstances where the necessary information is not already available to it, the Borrower (and each guarantor as applicable) will, promptly on the request of Beehive Group, supply (or procure the supply of) such documentation and other evidence as is reasonably requested in order for Beehive Group to be able to carry out, and be satisfied that it has complied with, all necessary "know your customer" or other similar checks under all applicable laws and regulations. 6.5 The Borrower agrees that it will not: a) borrow any monies from its directors, officers, members, partners, shareholders or any other third party that ranks in priority of recovery to the Financing. In the event that the Borrower does enter into any such loan, the rights to payment of that loan will be subordinated behind the Financing, except to the extent otherwise required by the applicable insolvency law; b) enter into any other new unsecured borrowing arrangement (or any arrangement having the effect of a borrowing) with any third party where the total amount of external finance raised from third parties would as a result exceed 75% of the total amount lent to the Borrower through Beehive without the prior written consent of Beehive Group. Such consent shall not be unreasonably withheld. This clause shall not restrict the Borrower from entering into assetspecific financing; c) enter into any amalgamation, demerger, merger or corporate reconstruction; or d) make any substantial change to the general nature of its business from that carried on at the date of the IF Contract. 7. Events of Default 7.1 The Borrower agrees that should any of the events or circumstances set out in this clause 6.1 occur each shall be deemed to be an Event of Default and Beehive Group may, on the Investors' behalf, terminate all IF Contracts relating to the Financing and demand immediate repayment. Furthermore, the Borrower agrees that Beehive Group may, on the Investors' behalf, terminate all IF Contracts relating to the Financing and demand immediate repayment of the full Financing Amount owed by the Borrower under each IF Contract in respect of that Financing if: a) the Borrower has provided incomplete, false or inaccurate information in a way which affects the decision to allow the Borrower to register as a borrower on Beehive or list BFRs on the Site; b) the Borrower has breached the terms of any loan or IF contract it is a party to and either notice has been given to the Borrower ending that loan or IF contract or Beehive Group has reasonable grounds to believe that as a result: the Borrower will also breach the terms of this IF Contract; or any other Event of Default will occur, c) the Borrower's access to Beehive is terminated for any reason under the Beehive Terms and Conditions; d) the Borrower becomes insolvent, or any step is taken which could result in it becoming insolvent, or a petition is presented, or an order made or an effective resolution passed for the winding up or dissolution or for the appointment of a liquidator of the Borrower; 2

3 e) the Borrower ceases to pay its debts or is unable to pay its debts as they fall due or is deemed unable or admits its inability to do so or makes a general assignment for the benefit of or a composition with its creditors; f) the Borrower sells or disposes of the whole or a substantial part of its undertaking, property or assets or ceases to carry on the business conducted by it when it entered into the IF Contract; g) notice is given of an intention to appoint an administrator, a petition is filed or a competent court makes an order for the appointment of an administrator in relation to the Borrower; h) an encumbrancer takes possession or steps are taken for the appointment of an administrator or receiver or administrative receiver or manager or sequestrator over the whole or any substantial part of the undertaking, property or assets of the Borrower; i) any person who has provided a guarantee for the Financing or any Financing Part disputes or threatens to dispute the enforceability of that guarantee or Beehive Group has any reason to believe that a guarantee has become unenforceable, and in either case, a replacement guarantee has not been provided to Beehive Group's reasonable satisfaction within fourteen (14) days of a request from Beehive Group; j) the Borrower (or if any person who has provided a guarantee for the Financing or any Financing Part) dies, becomes of unsound mind, becomes bankrupt or makes a voluntary arrangement with anyone that they owe money to; k) where the Borrower is a partnership, the composition of the partnership materially, in the reasonable opinion of Beehive Group, changes following the date of any IF Contract or any partner dies, becomes of unsound mind, becomes bankrupt or makes a voluntary arrangement with anyone that they owe money to; l) a distress, attachment, execution, expropriation, sequestration or another analogous legal process is levied, enforced or sued out on, or against, the Borrower's (or a guarantor's (as appropriate)) undertaking, property or assets; m) any part of the IF Contract ceases to be legally valid, binding or enforceable or it is or becomes unlawful for an Investor, Beehive Group or the Borrower or any other person to perform its or their obligations under the IF Contract; or n) Beehive Group (in its reasonable opinion) considers there is a serious deterioration in the Borrower's financial condition or in its creditworthiness or in its operating performance or its management and control or in its general day to day administration and organisation or in its sales ledger, administration or credit control process. 7.2 Before making any demand the Investor (or Beehive Group on its behalf) will take all the steps an Investor is required to take by law for the Borrower's protection. At any time, an investor may decide to enforce its rights under this IF Contract directly against a Borrower and the Borrower hereby consents to us providing any of its Investors with its relevant contact details for this purpose. 8. Beehive Fees 8.1 If the Borrower accepts the Financing, Beehive Group shall charge fees as per the prevailing fee tariff published on the Site. 8.2 Beehive Group will deduct the arrangement fee from the Financing before it is transferred to the Borrower so the Borrower will receive the Financing less the arrangement fee. A higher arrangement fee may be charged for applications made by registered agents on behalf of a Borrower. By contrast the Investors shall be obliged to pay a fee relating to the profit generated from the Site. 8.3 Other fees or charges that may be charged by Beehive or any collections agency it may appoint in relation to the Borrower's IF Contracts and added to the balance outstanding are: a) once a sum has been outstanding for three (3) days or more, any debt collection agent that Beehive Group appoints to attempt to collect overdue money from a Borrower on behalf of Investors will charge an administration fee of up to 15% of the overdue amount; b) tracing charges (for finding the Borrower if he or she can't be contacted by Beehive Group or its appointed collection agency); c) where a field agent has been employed as part of the collections process, Beehive Group or its appointed collection agency may charge a fee; and d) all litigation, enforcement and recovery costs and expenses, including (but not limited to) legal fees and expenses, to cover litigation or enforcement of any judgement in each case to recover any loan or outstanding arrears, In the case of the fees referred to in (b), (c) and (d) above, the Borrower will be advised of the cost if such action proves necessary. The Borrower will be notified (by way of general update to the Beehive Terms and Conditions or on Beehive) if these charges change in nature or amount. 9. Assignment Neither an Investor nor a Borrower shall be entitled to assign or transfer its rights or obligations under any Financing. 10. General 10.1 If any part of the IF Conditions that is not fundamental is found to be illegal or unenforceable, such finding will not affect the validity or enforceability of the remainder of the IF Conditions or the IF Contract The failure on the part of either of the Parties to exercise or enforce any right conferred upon it by a IF Contract shall not be deemed to be a waiver of any such right or operate so as to prevent the exercise or enforcement of any right conferred upon the Parties by this Loan Contract at any time or times thereafter The records kept by Beehive Group shall be conclusive of the facts and matters they purport to record. 3

4 10.4 In the event that the Borrower is a partnership or company, by entering into the IF Contract the representative of the Borrower makes the following declaration: "I confirm that I am authorised by the business I represent to enter into this agreement for and on behalf of the business I represent and that I am authorised to bind the business I represent to the terms of this agreement." 10.5 The Borrower and Investors agree that, while Beehive Group is not a party to this IF Contract, Beehive Group may take the benefit of and specifically enforce each express term of this IF Contract and any term implied under it pursuant to the Beehive Terms and Conditions This IF Contract will be entered into by electronic means in accordance with the Beehive Terms and Conditions upon the acceptance by the Borrower of Offers satisfying its BFR and this will have the same effect as if the IF Contract was signed in a hard single copy The Parties shall do and cause to be done all such acts, matters and things and shall execute and deliver all such documents and instruments as shall be required to enable the Parties to perform their respective obligations under, and to give effect to the transactions contemplated by, this IF Contract This IF Contract and the documents referred to in it constitutes the entire understanding and agreement of the Parties relating to the subject matter of this IF Contract and supersedes, cancels and replaces all prior agreements between the Parties which relate to the same subject matter whether written, oral, implied or as may be inferred from the correspondence, oral statements or conduct of the Parties No amendments or variations to this IF Contract shall be effective unless made in writing and signed by the duly authorised representatives of the Parties All notices required to be given by either of the Parties to the other pursuant to the provisions of this Agreement must be in writing and shall be sent: a) by hand; b) by registered post; or c) by facsimile with a copy sent by registered post, To the Investor / Borrower, c/o Beehive Group at Unit No Mazaya Business Avenue BB2, Jumeirah Lakes Towers, Dubai, United Arab Emirates (PO Box 72479) and with fax number Any notice delivered by hand shall be deemed to have been served at the time of delivery. Any notice sent by registered mail shall be deemed to have been served on the seventh (7th) day after the date on which it is posted. Any notice sent by facsimile shall be deemed to have been served on the date on which such facsimile is transmitted. In each case if the date of delivery is not a Business Day the date of service shall be the next succeeding Business Day The Borrower undertakes that it shall not at any time after the date of the IF Contract use, divulge or communicate to any person (except to professional representatives or advisers or as may be required by law or any legal or regulatory authority) any Confidential Information, and will use best endeavours to prevent the unauthorised publication or disclosure of any Confidential Information, and will only use such Confidential Information for the purposes of proposing, considering or making transactions through Beehive IF Conditions, and any non-contractual obligations arising out of or in connection with them, shall be governed by the laws of the Dubai International Financial Centre. The Borrower and the Investor irrevocably submit to the exclusive jurisdiction of the Courts of the Dubai International Financial Centre over any claim or matter arising under or in connection with these IF Conditions or any IF Contract. 11. Interpretation 11.1 Unless the context otherwise requires references in these IF Conditions to: a) persons includes individuals, corporations, and unincorporated bodies or associations that are recognised at law (whether or not having a separate legal personality and irrespective of their jurisdiction or origin, incorporation or residence); b) a Party means a party to this Agreement and includes its successors and permitted assigns; c) time shall be construed by reference to the Gregorian calendar; d) Clauses and Schedules shall be references to the relevant clause or schedule of this Agreement; and a reference to a paragraph is to the relevant paragraph in the Schedule in which it appears; e) the terms "including", "include", "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and f) the singular includes the plural (and vice versa) and use of any gender includes the other genders The headings in this Agreement are for convenience only and shall not affect the construction or interpretation of this Agreement. 12. Defined terms In these Loan Conditions and each Loan Contract the following words have the meanings set out next to them in the table below: Beehive means the Beehive online lending platform operated by Beehive Group; 4

5 Beehive Client Account means the bank account that Beehive Group maintains, which is managed by Beehive Group and its third party fund administrator for the sole purpose of holding funds on behalf of each individual Borrower and Investor, and which contains the uninvested funds which the Investor has credited to the Beehive Client Account and the funds which the Borrower is entitled to withdraw in accordance with any Loan Contract to which it is a party; Beehive Group means Beehive Group DMCC a company incorporated in the Dubai Multi Commodities Centre, under license number DMCC and whose registered office and principal place of business is at Unit No Mazaya Business Avenue BB2, Jumeirah Lakes Towers, Dubai, United Arab Emirates (PO Box 72479). Beehive Terms and Conditions means the IF Borrower terms and conditions, the IF Investor terms and conditions and the general Beehive terms of use, available on the Site, as the same may be amended or replaced from time to time; BFR means a Borrower s Financing Request which the Borrower posted on Beehive requesting funds; Borrower means the member of Beehive identified as the IF borrower in the Key IF Contract Terms; Business Day means any day except a Friday, Saturday or public holiday, and on which the banks in the Emirate of Dubai, United Arab Emirates are open for business; Confidential Information means all information in whatever form (including in visual, oral or electronic form) relating to Beehive Group or any Investor (including all Investor profiles) or a company that was previously a Investor, which is provided or disclosed through Beehive (or to any employees or agents) in connection with the use of Beehive; Cost of Finance means the interest charged to the Borrower over the duration of the Financing which is calculated on a daily basis and set out in the Key IF Contract Terms Expected Payment Date means the last date of all of the invoices within an Invoice Batch; Investor or Investors means the member or members of Beehive identified as the IF investor in the Key IF Contract Terms (and their permitted successors and assignors); Financing means the individual financing transaction entered into between a Borrower and an Investor or multiple Investors in response to the BRF and the subsequent Offers being placed by the relevant Investors and accepted by the Borrower for those Financing Parts; Financing Amount means the total amount of principal and Cost of Finance outstanding under the IF Contract relating to that Financing; Financing Part means the individual part of the Financing which has been lent by a particular Investor; Grace Period means the date 30 days after the Expected Payment Date IF means Invoice Financing IF Conditions means these Beehive IF conditions; IF Contract means the agreement governing the terms on which an Investor offers Financing to a Borrower, in each case made up of the IF Conditions and Key IF Contract Terms applicable to the relevant Financing; Invoice Batch means the individual invoices within a BFR uploaded by the Borrower; Key IF Contract Terms the key commercial terms provided only to a Borrower applicable to a particular Financing derived from the BFR and subsequent winning Offers that form the IF Contract; My Account means the part of the Beehive website which can only be accessed by a member of Beehive, using his or her own secure login details; Offer means an offer which an Investor makes on Beehive via the setting of the Investor Parameters making that Investor's offer of funds in part satisfaction of a BFR; Site means the website accessible at used to access Beehive; 5