These general loan terms apply to each loan granted via the Website and form, with the principal loan terms agreed in respect of the relevant loan, an integral loan contract in respect of that loan (“Loan Contract”).
TRANSFER OF THE LOAN AMOUNT
The loan amount is transferred to the SPV provided that all the following conditions have been satisfied:
The Users have given acceptances in respect of a Loan Request in an aggregate principal amount of at least the amount that corresponds to the minimum amount of the funding target specified by the SPV in the loan request;
the SPV has validly established collaterals of the type and in the scope specified in the principal loan terms in favour of the Collateral Agent, within 14 days after receipt of relevant notice by the Operator;
no event or circumstance described in Section 12.4 of these General Loan Terms exists.
The Operator determines the satisfaction or non-satisfaction of the conditions described above at its own reasonable discretion.
The security shall be established in form and substance satisfactory to the Operator and, among other things be established in favour of the Collateral Agent to secure obligations arising from all Loan Contracts entered into for the funding of the project in relation to which the loan is being granted (including to secure the performance of the parallel obligation described in Section 13).
Any fees and other costs payable or reimbursable by the SPV shall be paid from the loan amount, in which case the loan amount is transferred to the SPV only in an amount it exceeds the relevant fees and costs.
PURPOSE OF THE LOAN
The SPV must use the loan only for the purpose specified in the principal loan terms of the relevant loan and for the funding of the payment of fees and reimbursement of costs relating to that loan specified in the Terms. Using loan for any other purpose is a material breach of obligation of the Loan Contract.
The SPV confirms that it shall use the loan only for funding its project to acquire and develop real estate.
REPAYMENT OF LOAN
The SPV shall repay the principal loan amount to the Users at the end of the loan period from the funds received from selling the real estate which was acquired and/or developed with the loan amount (“Realisation”).
The SPV has the right to decrease the repayable loan amount if upon the Realisation the proceeds from the Realisation minus all applicable costs and fees is less than the aggregate principal loan amount lent to the SPV. In such case the principal loan amount being repaid to each User shall be decreased pro rata to their investment amount.
For example: the SPV received in aggregate EUR 100,000 as a loan from the Users and acquired a real estate valued at EUR 95,000 in 2018. Upon the Realisation, the SPV sells the real estate for EUR 90,000 because the property values have decreased by the end of the loan period. The applicable fees and costs in connection with the Realisation amount to EUR 5,000, which means that the SPV shall have EUR 90,000 for loan repayment. The User has provided EUR 1,000 as a loan to the SPV, which constitutes 1% of the aggregate principal loan amount. The SPV decreases the repayable loan amount to EUR 90,000 and the repayment to the User shall be decreased pro rata. Thus, the User shall receive EUR 900, which constitutes a 1% of the decreased principal loan amount, as a repayment of the principal loan amount.
The User understands that the SPV shall have the unilateral right to decrease the principal loan amount to the extent as decreased based on the Section 4.2and explicitly agrees to waive its right to claim repayment of the principal loan amount in full upon negative Realisation of the real estate, which shall constitute as termination of obligation by agreement in the meaning of Section 207(1) of the Estonian Law of Obligations Act. The User confirms that it understands the consequences related to the termination of obligation by agreement upon negative Realisation. The SPV shall make all underlying information and data available to the Users upon which the calculations are based on.
In case the object of the project is being sold for more than the principal loan amount, the User has the right to receive additional Loan Return in accordance with the Section 6.5
The SPV must repay the loan amount to the User as follows:
If according to the principal loan terms the loan is repayable in full at end of the loan period, the SPV must repay the loan amount within 30 days after the last day of the loan period specified in the principal loan terms;
If according to the principal loan terms the loan is repayable in instalments, the loan shall be returned in instalments in the frequency stipulated in the principal loan terms, and in any case the loan amount shall be repaid in full no later than within 60 days upon the termination of the loan period.
PREPAYMENT OF LOAN
The SPV can prepay the loan earlier by the procedure provided for in the Terms only in full (but not in part) by giving a prior notice of at least three working days. Prepayment of the loan upon which the real estate is being sold for less than the aggregated principal loan amount is allowed only if the sale of the real estate at the end of the loan period would further damage the interests of the User.
The SPV shall pay the Loan Return to the Users with the frequency specified in the principal loan terms.
The Loan Return is the benefit received by the SPV by means of disposal of the object of the loan (the property) through lease, rent and other contracts for use (kasutuslepingud) throughout the duration of the Loan Documents.
The SPV must pay the Loan Return with the frequency specified in the principal loan terms as follows:
if according to the principal loan terms the Loan Return is payable in full at the end of the loan period, the SPV shall pay Loan Return, in the amount calculated in accordance with these general loan terms, for the whole loan period no later than on the day of the repayment of the loan amount after the realisation of the object of loan;
if according to the principal loan terms the Loan Return is payable periodically in monthly, quarterly, semi-annual or annual payments, the SPV shall pay Loan Return by periodical payments such that on each return payment date the SPV shall pay return in the amount calculated in accordance with these general loan terms;
The amount of Loan Return shall be equal to the amount of the benefits received by the SPV within the loan period from which all the costs and expenses have been deduced (Net Benefit). Net Benefit shall be calculated as follows:
Gross Benefit – Costs and Expenses = Net Benefit
Upon the realisation of the object of the loan at the end of the loan period agreed in the principal loan terms, the User has the right to receive additional Loan Return based on the benefits gained by the SPV from the realisation of the object of loan from which all the costs and expenses have been deduced. The realisation benefit shall be calculated as follows:
Sale Price – Buying Price – related Costs and Expenses = Realisation Benefit
In case of prepayment of the loan in accordance with the procedure provided for in Section 5 of these general loan terms, the SPV shall pay to the User unpaid Loan Return accrued until the date of repayment of the loan together with the repayment of the principal loan amount and the profit obtained from the realisation of the object of the loan.
The Operator undertakes to provide Users with periodic statements at least once in every 6 months containing the review of the activities of the SPV with respect to the use of the object of the loan and the benefits accrued (activity report), providing detailed calculation of the Net Benefit. The SPV undertakes to provide to the Operator all the data necessary for drafting of activity reports.
In case of delay in the performance of a financial obligation, the SPV shall pay default interest. Default interest is calculated from the moment the financial obligation becomes due until its due performance, unless it is otherwise stated in the Terms or these general loan terms.
The rate of default interest amounts to 8% of the amount due per annum.
OTHER PAYMENTS AND FEES
The SPV shall, in a timely and otherwise due manner, pay all fees and compensate all losses, fees, costs and duties the payment and/or compensation of which is the SPV’s obligation according to the Terms (including fees, duties, costs and losses payable and/or reimbursable to the Operator and Collateral Agent).
In case of a secured loan the cost of the conclusion of a notarised collateral agreement (first of all, the notary fees) shall be borne by the SPV.
The SPV shall refrain from transactions and acts in its activities that are beyond the scope of everyday economic activities of the SPV or as the result of which the SPV’s ability to timely and duly perform the obligations arising from the Loan Documents relating to the loan granted within the project may materially reduce. Among other things, the SPV may not:
encumber its assets (including the real property the subject of the project to which the loan relates) with a restricted real right or other right of a third person (including with securities);
dispose of the real property the subject of the project to which the loan relates, or any other material assets;
take out a loan or credit or incur other financial indebtedness which according to the generally accepted accounting principles in Estonia are treated as borrowings (laenukohustused), except for the loans taken via the Website;
guarantee, provide surety or otherwise secure the obligations of any person;
reduce its share capital; or
be the subject of merger or division, except in cases and to the extent the relevant act or activity described in Sections 9.1.1 to 9.1.6 above was expressly contemplated in the business plan, activity plan or other relevant project description of the relevant project made available to the User in the Website before entry into the Loan Documents, or if the User gives its prior consent in a format which can be reproduced in writing.
The SPV must refrain from transactions and acts that may materially reduce the value or scope of security or otherwise prejudice the enforcement of security (object of Loan).
The SPV undertakes to keep its assets (including the real property provided as a security) and activities insured against the risks and to the extent as is usual for persons carrying on similar activities or for similar projects, and deliver to the User copies of the relevant insurance policies at the User’s request.
The SPV must adhere to the business plan, activity plan and budget made available to the User for the User’s inspection within the project to which the loan relates except in case deviation from it does not, in the opinion of the User, prejudice the interests of the User.
All payments related to any Loan Document shall be made in full in accordance with the procedure provided for in the Terms, with the SPV not being entitled to set off any amounts owing by it or make any other deductions or withholdings from such amounts.
The SPV undertakes to duly follow and comply with the provisions of the Terms and any laws and other regulations applicable to it.
SPV’S NOTIFICATION OBLIGATIONS
The SPV shall, in the manner provided for in the Terms, notify the Operator:
promptly upon such change, of a change of its name, postal address, e-mail address or other information required in the Terms;
promptly upon becoming aware of the same, of the commencement of court, arbitral tribunal, bankruptcy, rehabilitation (saneerimine), enforcement or administrative proceedings in respect of the SPV, the SPV’s assets, an asset subject to loan security or the provider of loan security or its assets, if the relevant proceeding concerns proprietary obligations (varalisedkohustused) with an aggregate value of at least EUR 10,000 and provide details of the substance of the relevant proceeding;
promptly upon becoming aware of the same, of any other circumstances or events concerning the SPV, SPV’s assets, the assets subject to loan security, the provider of loan security or its assets, with regard to which the User would have, having regard to the purpose of the Loan Documents, a reasonably recognisable interest (including any relevant circumstances and events concerning the project to which the loan relates and circumstances and events concerning the real property the subject of that project (including of events described in Section 12.4.5 or 10.1.2 of these general loan terms)).
PAYMENTS DEFAULTS AND OTHER BREACHES
If the SPV delays the performance of any financial or non-financial obligation arising from Loan Documents related to the loan:
default interest is calculated on the relevant obligation pursuant to the procedure provided for in Section 7 of these General Loan Terms;
actions and steps described in Section 12 of the Terms may be taken with respect to the SPV in respect of that obligation; and
in cases provided for in Section 12.4 of these general loan terms, the User may extraordinarily cancel the Loan Contract in accordance with the procedure provided for in the Terms.
The provisions of Sections 11.1.2 and 11.1.3 of these general loan terms apply also in circumstances where the SPV breaches any non-financial obligation arising from the Loan Documents related to the loan or other grounds subsist for extraordinary cancellation of the Loan Contract.
TERMINATION OF THE LOAN CONTRACT
The Loan Contract terminates when the principal amount of the loan has been repaid to the Users in accordance with Section 4, the return has been paid in accordance with Section 6, and the SPV has performed all other financial obligations arising from or on the basis of the Loan Documents related to the relevant loan, or in case the Loan Contract has been cancelled or withdrawn.
The Loan Contract terminates automatically when any condition described in Sections 2.1.1 and 2.1.2 of these general loan terms is not satisfied within the prescribed time period and procedure, or if the loan amount is not transferred to the SPV as described in Section 2.2 of these general loan terms.
The Loan Contract terminates automatically if before the transfer of the loan amount to the SPV:
the User status of the User is terminated by the procedure described in Section 19 of the Terms; or
bankruptcy of the Operator is declared or if the Operator otherwise terminates its operation.
The User can cancel the Loan Contract extraordinarily in cases provided for in law or if at least one of the following circumstance or event has occurred:
if according to the principal loan terms the loan is repayable in instalments and the SPV is in delay with the payment of an amount that is greater than two instalments, or with the payment of one instalment for more than 45 days (disregarding, for the purposes of calculating the amounts referred to above, Loan Return payments related to the relevant instalments);
the SPV fails to perform the obligation to pay Loan Returns or any other financial obligation arising from or on the basis of Loan Documents (excluding the obligation to repay the principal amount of the loan) and at least 14 days have elapsed from the day the relevant obligation fell due;
any information or confirmations provided by the SPV occurs to be untrue, misleading or otherwise inaccurate in any material respect, or the SPV has failed to disclose information or circumstances with regard to which the User would have had a recognisable significant interest having regard to the purpose of the Loan Contract;
bankruptcy, rehabilitation (saneerimine) or liquidation proceedings have been commenced with respect to the SPV, or enforcement proceeding has been commenced with respect to the SPV concerning a monetary claim in an amount of at least EUR 10,000;
any other financial obligation of the SPV falls due and payable prematurely as a result of a breach of obligation or the occurrence of another similar event, or any other agreement entered into with the SPV in respect of incurring a loan obligation is extraordinarily cancelled or is otherwise cancelled as a result of breach of agreement or the occurrence of another similar event, except where the aggregate amount of such financial obligations or the amount of loan or credit under such agreements does not exceed EUR 10 000; or
if compulsory enforcement (sundtäitmine) has been commenced in respect of the property subject to security, or the value of the property subject to security has materially decreased and the creditworthiness of the person who had granted that security has materially deteriorated.
In case of extraordinary cancellation of the Loan Contract by the User, the loan amount becomes immediately repayable in full and all other consequences provided for in law shall occur (with all payment obligations in respect of Loan Return and other fees also falling due and payable). Section 13 of these general loan terms remains in effect also after cancellation of the Loan Contract.
AGREEMENT ON PARALLEL OBLIGATION
This Section 13 of these general loan terms applies to each secured loan issued via the Website.
The SPV undertakes to pay to the Collateral Agent an amount (such obligation of the SPV to the Collateral Agent hereinafter the “parallel obligation”) equal to and in the currency of each other monetary obligation of the SPV arising from any Loan Document related to the relevant loan (such other monetary obligation hereinafter the “base obligation”).
The parallel obligation falls due and must be performed to the Collateral Agent at the same time and in the same currency when and in which the corresponding base obligation falls due and must be performed.
The amount of the parallel obligation decreases from time to time in the extent by which the base obligation that corresponds to that parallel obligation is duly performed to the creditor for the time being of that base obligation (with such base obligation not being deemed to have been performed for such purposes until such creditor has irreversibly received the relevant amount in full), and the amount of the relevant base obligation decreases from time to time in the extent by which the parallel obligation that corresponds to that base obligation is duly performed to the Collateral Agent or to a person appointed by the Collateral Agent (with such parallel obligation not being deemed to have been performed for such purposes until the Collateral Agent or the person appointed by the Collateral Agent has irreversibly received the relevant amount in full).
The Collateral Agent may demand the performance of the parallel obligation pursuant to the Loan Contract from the SPV independently on its own behalf and the SPV must perform the relevant obligation to the Collateral Agent or the person appointed by the Collateral Agent.
The SPV understands and acknowledges the parallel obligation and the right of the Collateral Agent to demand performance from the SPV under this parallel obligation on the same terms and on behalf of the Users that have granted loan to the SPV.
ORDER OF APPLICATION OF INSUFFICIENT PAYMENTS
If a payment made pursuant to a Loan Document related to the relevant loan is not sufficient for the satisfaction of all obligations that have fallen due, that payment shall be applied:
first, towards covering of costs incurred for collection of obligations (including covering of costs of the actions and steps referred to in Section 11.1 of these general loan terms);
second, towards covering of fees and costs that have not been paid to the Operator and the Collateral Agent;
third, towards covering of accrued default interest;
fourth, towards covering of outstanding Loan Return;
fifth, towards covering of outstanding principal loan amount; and
sixth, towards covering of all other payments and fees.
If a payment is not sufficient for the full satisfaction of all obligations within the same priority level referred to in Section 14.1, that payment shall be applied towards covering the relevant obligations in a chronological order of such obligations falling due or in any other order at the choice of the User.
The User and the SPV have agreed that the Operator (or any legal successor of the Operator from time to time) administrates the loan and the Operator acts as a representative of the User and the SPV in the relations between the User and the SPV notwithstanding any potential conflict of interests. The authorization hereby given to the Operator is irrevocable.
If pursuant to a Loan Document a consent of the User is required for any act or activity, or if the subsistence of any circumstance or event, or the satisfaction of any condition, is to be determined by the User, the Operator gives the relevant consent or determines the relevant matter on the User’s behalf at its own discretion.
The Operator is entitled to rely on Sections 15.1 and 15.2 of the Terms and independently on its own behalf demand the performance of the same.
The more particular role and scope of powers of the Operator may be provided for in the Terms.
TRANSFER OF RIGHTS AND OBLIGATIONS
The SPV may assign or otherwise transfer the rights and/or obligations arising from the Loan Documents relating to the loan only with the consent of the Operator (or any legal successor of the Operator from time to time). In addition to the above, the consent of the Collateral Agent (or any legal successor of the Collateral Agent from time to time) is required for assignment and/or transfer of the relevant rights and/or obligations.
The User may assign or otherwise transfer the rights and/or obligations arising from the Loan Documents relating to that loan only with the consent of the Operator (or any legal successor of the Operator from time to time) in accordance with these General Loan Terms and Terms.
Notwithstanding the provisions of Sections 16.1 and 16.2, the rights and/or obligations arising from Loan Documents may only be assigned or otherwise transferred if the same is expressly contemplated and permitted in the Terms, and only in the manner and in accordance with the procedure provided for in the Terms.
All notices related to the Loan Contract shall be delivered in the format and in the manner provided for in the Terms.
The User understand s and acknowledges that this Loan Contract, theTerms or any of the Loan Documents does not constitute as a contract of partnership (seltsing).
The provisions of the Terms in respect of governing law, jurisdiction and resolving of disputes shall apply with respect to the User and SPV.
If not otherwise expressly stated in these general loan terms, among other things, the rules and explanations provided for in the Terms apply to the interpretation of any Loan Document. If the Terms have ascribed a certain meaning or explanation to the word or expression used in the principal loan terms and/or these general loan terms, such meaning and/or explanation shall apply also to the interpretation of the principal loan terms and/or these general loan terms.