1. Definitions
1.1 Agency Agreement – agency agreement is considered to be concluded automatically by Capitalia and User after the User has filled the Financing Application at the Platform and Capitalia has confirmed the receipt of the User’s money in accordance with the Financing Application at the Capitalia’s Account. Pursuant to the Agency Agreement Capitalia shall perform to the User (Financing Party) agency (loan syndication) services, i.e., conclude the Loan Agreement with the Company in the name of the User (Financing Party). No separate agreement outside of these Terms and Conditions shall be signed in this respect between Capitalia and the User. For the provision of agency (loan syndications) services no fees are paid by the User (Financing Party) to Capitalia.
1.2 Business Day – any day, on which banks in Latvia are operating, except Saturdays, Sundays, and public holidays.
1.3 Buyback Guarantee - a clause of the Agency Agreement, under which Capitalia undertakes to purchase Financing from the User if Loan becomes Defaulted Loan. The clause applies to the particular Loan if it is explicitly indicated in the description of the Company at the Platform.
1.4 Capitalia – societa europea “Capitalia”, registered and existing under the laws of the Republic of Latvia with registration No 40003933213, legal address: Stabu 20-1, Rīga, Latvia.
1.5 Capitalia’s Account – the bank account indicated at the Platform to which the User (Financing Party) is transferring his/her/its Financing and which is held separately from other property of Capitalia. Capitalia shall not calculate any interest for the Financing transferred to the Capitalia’s Account and no such interest shall be payable to the User (Financing Party).
1.6 Collateral – mortgage or commercial pledge to be registered in favour of Capitalia or a collateral agent in order to secure the fulfilment of the Company’s obligations under the Loan Agreement.
1.7 Company – any legal person that has expressed its intention to acquire the Loan from Capitalia on behalf of the Financing Party and Capitalia as part of its commercial activities, and which has received the Loan from Capitalia on behalf of the Financing Party and Capitalia in accordance with the concluded Loan Agreement.
1.8 Company’s Payments – payments executed by the Company to Capitalia for the Loan repayment, payment of Interest, statutory interest, contractual penalty, late payment interest, except Management fee as provided in the Loan Agreement.
1.9 Defaulted loan Loan in regard to which the Company has failed or in all likelihood will fail to voluntarily fulfill its obligations under the Loan agreement, as indicated by the following circumstances:
- The Company is past due more than 90 days on any material Loan payment;
- The Company is declared insolvent, or in-court restructuring of the Company is approved, or similar legal measures limiting recovery of the Loan are implemented;
- The Company is in serious breach of the Loan agreement or any Collateral agreement, which means it will not be able or willing to voluntarily fulfill its obligations under the Loan agreement.
1.10 Financing – the amount of money the User has committed to loan (lend) to the Company via agency (loan syndication) of Capitalia by indicating this amount in the Financing Application in the Platform. Financing is considered to be loaned (lent) to the Company via agency (loan syndication) services of Capitalia when Capitalia has confirmed the receipt of the User’s money in accordance with the Financing Application at the Capitalia’s Account and the Loan Agreement is signed with the Company. If the Loan Agreement is not concluded within one month since submission of the Financing Application, the Financing is returned to the User’s Account.
1.11 Interest – remuneration for the use of the Loan, calculated pursuant to the Loan Agreement and paid by the Company to Capitalia.
1.12 Financing Application – a User’s application filled out at the Platform and submitted to Capitalia via the Platform authorizing Capitalia to transfer the Financing to the Company if the Loan Agreement is concluded between Capitalia on behalf of the Financing Party and Capitalia, and the Company, based on the principal terms as indicated on the Platform. Following submission of the Financing Application, User will automatically receive drawdown request for the transfer of the Financing to the Capitalia’s Account.
1.13 Financing Application Number – number which is automatically created at the Platform once the User has filled out and submitted the Financing Application. The Financing Application Number has to be always indicated by the User when transferring the Financing to the Capitalia’s Account.
1.14 Financing Party – any User of the Platform whose Financing Application has been accepted by Capitalia and who has transferred the Financing to the Capitalia’s Account and on behalf of which the Loan Agreement is concluded between Capitalia and the Company.
1.15 User’s Account – an account opened in the name of the User in a credit institution, payment institution or electronic money institution as indicated in the registration form for the User Profile.
1.16 Loan – amount of money which is provided to the Company by Capitalia on behalf of the Financing Party Capitalia itself by signing Loan Agreement.
1.17 Loan Agreement – a loan agreement concluded by and between the Company and Capitalia on behalf of the Financing Party and Capitalia itself. Scanned signed version of the Loan Agreement is available to the Financing Party through the Platform once it is concluded. Loan Agreement form is available at the Platform as part of the description of the Company. Loan agreement can be also in form of Factoring Contract within which Financing Party committs to finance recurring invoices issued by the Company for the entire duration of the Factoring Contract.
1.18 Loan Syndication – process managed by Capitalia in concluding the Loan Agreement with the Company where the Loan consists of Financing(s) provided to the Company via agency services of Capitalia of one or more Financing Parties and/or part of the Loan may be provided to the Company under the Loan Agreement by Capitalia itself. The part of the Loan Capitalia is ready to lend to the Company is indicated in the description of the Company at the Platform, which Capitalia may unilaterally increase, but may not decrease in the period while the Company is raising funds at the Platform.
1.19 Management Fee – fee paid by the Company to Capitalia for organizing and monitoring the Loan. The amount of the fee is specified in the Loan Agreement.
1.20 Parties – Capitalia, the Company and the User (Financing Party), as the case may be.
1.21 Platform – website under domain name www.capitalia.com registered in the name of Capitalia.
1.22 Privacy Policy – rules on privacy policy as available at the Platform and which apply to the User.
1.23 Restructured loan - Loan where terms and conditions of the Loan agreement have been modified, and which, in a judgement of Capitalia would become Defaulted loan in the absence of such modifications.
1.24 Terms and Conditions – the present Terms and Conditions of the Platform.
1.25 User – any private or legal person registered as a user in the Platform with an intention to provide Financing to the Company as part of his/her/its commercial activities.
1.26 User Profile – the User’s personal site at the Platform, which is automatically created after the User registers at the Platform and is available to the User after entering the User’s e-mail address and password on the Platform.
1.27 Unless otherwise specified herein, definitions used in these Terms and Conditions importing the singular include the plural and vice versa, as it may be applicable in the context.
2. Scope of the Terms and Conditions
2.1 These Terms and Conditions regulate the legal relations between the Parties concluding the Agency Agreement and the Loan Agreement and are applicable to all other relations arising out of registration at the Platform and filling out and submission of the Financing Application at the Platform.
2.2 Once the User has registered User Profile at the Platform it is deemed that the User has accepted and signed to these Terms and Conditions. Any Company prior to signing the Loan Agreement confirms that it has read these Terms and Conditions, as well as has understood their meaning and has undertaken to comply with them and any amendments thereof.
2.3 By registration of the User Profile the User agrees that Capitalia may unilaterally amend or change these Terms of Conditions and such amendments or changes are valid as long as the financial obligations and rights of the User and the Company remain intact. In case of such amendments, User shall receive automatic notification at the Platform from Capitalia in this respect.
2.4 By registration of the User Profile the User confirms that he/she/it is able to make independent decisions about the Financing, as well as is aware of all the risks, including the risk of non-recovery of the Financing in case the Company has defaulted under the Loan Agreement and Capitalia is not able to receive the repayment of the Loan and any other contractual obligations pursuant to the debt collection procedures established by Capitalia.
2.5 The User (Financing Party) understands that Capitalia shall not register any Collateral in favour of Financing Party, but if any Collateral is registered, it shall be in favour of Capitalia or collateral agent that will represent all the Financing Parties and Capitalia in ensuring successful repayment or recovery of the Loan.
3. Operation of the Platform
3.1 The Platform’s financing functionality is created for the benefit of the User who can provide Financing through agency (loan syndication) services of Capitalia to various businesses. In all of the Loans formed through such loan syndicates Capitalia shall act as one of the Financing Parties. The amount of Financing provided by Capitalia to each of the Company is indicated in the description of the Company in the Platform. Capitalia can unilaterally increase (but cannot decrease) its Financing amount to the Company during the time when the Company is raising Financing from other Financing Parties in the Platform.
3.2 After registration at the Platform, the User will receive automatic notifications (that can be opted out from) when any new financing opportunities will be offered to Users.
3.3 User can provide Financing to Companies either by manually filling out and submitting the Financing Application for the particular Loan or by activating Auto-invest function in User’s profile on the Platform.
3.4 Auto-invest function allows User to invest a pre-determined investment amount in Loan projects based on stipulated risk, Company’s geography and loan term preferences. User may at any time de-activate Auto-invest function or change the criteria of Auto-invest application.
3.5 By activating the Auto-invest function, the User authorizes Capitalia to generate and submit Financing Applications on the User’s behalf for the Loans that match criteria stipulated in Auto-invest investment strategy setup by the User.
3.6 If the Loan amount set out in the Company description is smaller than the amount that would be received if all Users, whose Auto-invest investment strategy criteria match the Loan characteristics, would invest via Auto-invest sum of “Investment in one project” as indicated in their Auto-invest investment strategy, then Capitalia will allocate investment opportunity to Users on a non-discriminatory basis.
3.7 Capitalia reserves the right to terminate or pause Auto-invest function of the Platform or change available criteria for Auto-invest investment strategy setup at any time without prior notice to Users.
3.8 Filling out and submission of the Financing Application shall mean a non-binding offer from the User to provide Financing to the Company via agency (loan syndication) services of Capitalia. If User has not transferred the Financing to the Capitalia’s Account within 48 hours since submission of the Financing Application, Capitalia has a right to contact the User to understand the reason for delay in the transfer of the Financing or to reject the Financing Application and declare it void by informing on that the User via Platform. After the Financing Application has been rejected by Capitalia, Capitalia has the right to offer the financing opportunity of the Company to other User.
3.9 Capitalia may reject and return any money transfer from the User if it is made from an account that does not match the User’s Account as indicated in the User Profile.
3.10 If the User has made a money transfer to the Capitalia’s Account without indication of the Financing Application Number, Capitalia has a right return such transfer to the User. Nevertheless, Capitalia will seek to contact the User to validate the identification of such transfer.
3.11 Once the money transfer in accordance to the Financing Application has been received and confirmed in the Capitalia’s Account it is deemed that the Agency Agreement is concluded between the User and Capitalia, authorizing Capitalia to conclude the Loan Agreement with the Company. Users shall receive automatic notification at the Platform and an e-mail from Capitalia that confirms the receipt of the transfer for the Financing and hence conclusion of the Agency Agreement between Capitalia and the Financing Party.
3.12 If in the time period indicated in the Platform Capitalia has not attracted the amount of Financing that meets the total fundraising goal of the Company then any concluded Agency Agreement for Financing in the said Company is regarded as terminated and money is returned back to the User’s Account in 2 (two) Business Days. In such event the User shall receive an automatic notification at the Platform and an e-mail from Capitalia.
3.13 If the Loan Agreement has been concluded between Capitalia on behalf of the Financing Party and the Company, any Company’s Payments (except Management Fee) made to Capitalia are transferred within 2 (two) Business Days to the Financing Party Account in proportion to his/her/its Financing, except the late payment interest paid by the Company to Capitalia pursuant to the Loan Agreement, which is distributed to the Financing Party in proportion to his/her/its Financing after Capitalia has withheld 3/4 of it. If the Loan Agreement is concluded in the form of Factoring Contract then payments are transfered to the Financing Party after the term of the Factoring Contract has ended or the contract has been terminated. If the approved credit limit of the Factoring Contract is reduced by Capitalia, the Financing amount of the Financing Party shall be proportionally reduced. For Factoring Contracts all paid interest for the previous month will be calculated and paid to Financing Party until 5th day of each calendar month.
3.14 As part of the Agency Agreement Capitalia may:
- 3.14.1 Forgive the Company late payment interest and contractual penalties in full amount or partially;
- 3.14.2 Agree on a new Loan repayment schedule and extend (but not more than once) the Loan repayment term by up to 6 months;
- 3.14.3 Allow exchange or amendment of collateral if overall security of the Loan is not worsened;
- 3.14.4 Change Loan repayment schedule, Loan repayment term and modify other terms of the Loan agreement, if Loan is restructured (see Section 1.23) to prevent it from becoming defaulted, provided that modification does not reduce remaining principal amount of the Loan and increases likelihood of Loan recovery;
- 3.14.5 In regard to Defaulted loans, change Loan repayment schedule, Loan repayment term, modify other terms of the Loan agreement, agree to in-court or out-of-court settlement with the Company or Loan guarantor, give an approval to in-court or other restructuring plans of the Company, sell the Loan to third parties and perform other actions, provided that actions increase likelihood of maximum possible recovery of the Loan, in the estimation of Capitalia and its advisors.
3.15 If Capitalia believes that it is in the best interest of the Financing parties to make modifications in a Loan Agreement or to approve a Loan collection solution (for a Defaulted Loan), but such a decision would exceed the powers given to Capitalia by Sections 3.14. of these Terms and Conditions, Capitalia may seek approval of the decision by the Financing parties’ vote as described in the Section 3.16. below.
3.16 To conduct the Financing parties’ vote, Capitalia sends a proposed decision together with a rationale for it to the Financing parties via the Platform and separately by e-mail. The Financing parties are given sufficient time to consider the proposal. The time for voting may not be less than 3 (three) days. Financing parties may respond with a vote for or against the proposal. The decision is approved if a majority of the Financing parties (by amount invested in the Project) vote for the proposal.
3.17 If partial Company’s Payment has been received by Capitalia then it may withhold it before transfer of it further to the Financing Party for a period of up to 5 (five) Business Days if it is reasonable for Capitalia to expect that the remaining or further Company’s Payment will be received within such term.
3.18 Capitalia may withhold Company’s Payments for indefinite period if the transferrable amount to the Financing Party is less than EUR 5 (five euros). Such withholding cannot be done if it is reasonable expectation that such Company’s Payment is the last transfer from the Company with regards to execution of the Loan Agreement.
3.19 In case the Company has defaulted under the Loan Agreement and Capitalia has started its debt collection procedures any collected amount is distributed to the Financing Party in proportion to his/her/its Financing after Capitalia has withheld its expenses related to such debt collection. The abovementioned collection expenses are clearly disclosed at the Platform and further details can be provided to the Financing Party at request.
3.20 Capitalia is free to amend the operation of the Platform as long as the rights of the Users remain intact.
3.21 The User confirms that the use of the Platform and providing Financing to the Company via agency services of Capitalia in Loan Syndication is not asset management service. Capitalia is not and cannot be the deemed as funds or asset manager of the User. Both Capitalia and the User have assessed the laws and regulations applicable to the Financing, and the Parties confirm that the Financing is not and cannot be part of any fund or asset management structure, and that any Financing decision is made individually by the User.
4. Registration of User Profile
4.1 Any person complying with the requirements below may register the User Profile at the Platform, however, Capitalia may, at its sole discretion, deny such registration if the User has failed the background check performed by Capitalia.
4.2 The requirements for registration of the User Profile:
- 4.2.1 If private person - the User is at least 18 years old and holds full legal capacity;
- 4.2.2 If legal person – the User holds full legal capacity;
- 4.2.3 The User is resident (as individual or legal entity) and has a bank account in the European Union Member State, United Kingdom, Norway, Switzerland, Iceland.
4.3 The User may access his/her/its User Profile by indicating his/her/its e-mail and password. All the actions performed by the User at the Platform after entering his/her/its e-mail address and password shall be regarded as binding to the User as if confirmed by his/her/its signature.
4.4 If applicable by registration of the User Profile at the Platform the User has given permission to Capitalia to process personal data of the User in accordance to the Privacy Policy as published at the Platform.
5. User’s Identification
5.1 In order that the User may use the services provided at the Platform Capitalia must identify the User pursuant to its internal control system.
5.2 The User is identified after providing the information Capitalia has requested, including details of a valid User’s Account and copy of registration documents or personal identification.
5.3 In order to carry out identification of the User, Capitalia may unilaterally impose additional requirements for identification of the User as well as request additional information from the User (for example, proof of funds) at the sole discretion of Capitalia.
6. Rights and Obligations of the User
6.1 The User is obliged to comply with the requirements for registration of User Profile all the time while using the Platform.
6.2 Registration of the User Profile allows User to get notifications on new financing opportunities, receive access to full descriptions on financing opportunities in a Company, file the Financing Application, follow the Company’s Payments as well as perform other actions and see other relevant information.
6.3 The User has a right to access the concluded Loan Agreements, as well as at the date of Financing effective Terms and Conditions any time at the User Profile.
6.4 The User has the right to transfer and receive money for Financing only on its own behalf.
6.5 The User is obliged to keep password for the User Profile safe and confidential so that no third party may access it.
6.6 As long as the Agency Agreement is valid the User may not to contact directly the Company regarding repayment of the Financing, as well as may not to raise any claims against the Company in the court or any other institution or assign such claims, etc.
6.7 By creation of the User Profile the User confirms that he/she/it understands that the Company may fail to repay the Loan and in such a case the User may lose full or part of the amount of the Financing.
6.8 The User has a right to choose at the Platform by which communication means Capitalia may contact the User.
6.9 The User and the Company acknowledges that he/she/it is using the Platform’s services only for the purposes of commercial activities and expressly confirms that he/she/it shall not be using such services as a consumer and therefore shall not be able to benefit from any consumer rights protection laws.
7. Rights and Obligations of Capitalia
7.1 If applicable, Capitalia shall process all personal data of the Users in accordance to the Privacy Policy and for the sole purpose of ensuring provision of the agency (loan syndication) and other services of the Platform.
7.2 Capitalia has a right to block access of the User to the User Profile in case any activities of the User may cause or is causing damages to other Users of the Platform or in case the User has violated obligations under these Terms and Conditions.
7.3 Capitalia has a right to use the Financing only in accordance with the Agency Agreement.
7.4 Capitalia will ensure monitoring of the Company in line with its established monitoring policies, information about which is available to the Financing Party at request. The Financing Party will be notified via the Platform on any significant negative developments with regards to the ability of the Company to execute the Loan Agreement.
7.5 In case the Company has defaulted under the Loan Agreement, Capitalia shall take all the permissible and reasonable actions, including rescheduling of the payment terms of the Loan Agreement, to ensure repayment of the Loan without involvement of the Financing Party, however, Capitalia assumes no liability for the safety of the Company’s Payments and it rests as the sole risk of the Financing Party. Capitalia has no obligation to return the Financing to the Financing Party should the Company default under the Loan Agreement.
7.6 In case the Company has defaulted under the Loan Agreement and if by the estimation of Capitalia and its advisors the debt collection can yield positive return (collected payments will cover the costs of the collection), Capitalia will initiate debt collection procedures in line with its established practice. Regular information on the debt collection results will be provided to the Financing Party via the Platform.
7.7 In case Capitalia is declared insolvent, Capitalia shall immediately notify on that the Company and Financing Party(ies) and in such notification Capitalia shall provide all details of the Financing Party(ies) to whom the Company has to continue to repay the Loan (principal amount of Loan, accumulated Interest, late interest and penalties, but not the Management fee as provided in the Loan Agreement) instead of Capitalia, taking into account already repaid sums. Such notification is binding for Capitalia, the Company and the Financing Party(ies). In case if Capitalia has not sent out such notification to the Company and/or Financing Party(ies) within 1 (one) week since decision on the insolvency of Capitalia has come into force, the Financing Party(ies) have a right to request the Company repayment of the Loan without agency of Capitalia and the Company is obliged to comply with such a request without any further notifications from the side of Capitalia.
7.8 If the Loan was issued with Buyback guarantee, Capitalia shall buy and the Financing Party shall assign to Capitalia the Financing (part of the Loan held by the to the Financing Party) within 30 days after the Loan becomes Defaulted Loan. The assignment becomes effective after notice was sent by Capitalia to the Financing Parties and assignment price was paid to the Financing Parties by Capitalia. The assignment price is set to be equal to unpaid principal of the Loan and unpaid interest of the Loan for the period not exceeding 90 days.
7.9 Capitalia may, but is not obliged to, at any time and at its sole discretion, to buy from the Financing Party a Loan issued with Buyback guarantee, if such Loan is not a Defaulted Loan. The assignment procedure and price set out in Section 7.8. of these Terms and Conditions will apply.
8. Closing of the User Profile and termination of the Agency Agreement
8.1 In case the User violates these Terms and Conditions, provides false documents or misleading information or uses the Platform for any unlawful purposes Capitalia has a right to unilaterally terminated the Agency Agreement and suspend or delete the User Profile.
8.2 Capitalia has a unilateral right to close the User Profile upon giving notification to the User 10 (ten) Business Days in advance without indication of any reason.
8.3 The User has a right to request that Capitalia deletes the User Profile at any time thus also triggering termination of the Agency Agreement.
8.4 If the Agency Agreement is terminated with the User that has active Financing, Capitalia shall in 2 (two) Business Days notify the Company(s) of the fact and provide details so that Company’s Payments can be made directly to the User. For clarification, termination of the Agency Agreement does not in any way oblige Capitalia to return the Financing to the User.
9. Final Provisions
9.1 All payments under the Platform to the Capitalia’s account shall be made in euros.
9.2 For calculating the Interest, the statutory interest and other applicable charges, the Parties assume that the year consists of 360 days and each month consists of 30 days.
9.3 The Parties agree that each shall settle on its own any and all taxes which might be applicable under operation of these Terms and Conditions.
9.4 All notifications sent by one Party are regarded as received by the other Party on the next Business Day after their sending to the e-mail address as indicated at the User Profile.
9.5 The Parties agree to settle all disputes via negotiations; however, if such negotiations fail to produce any result within 3 (three) months, any Party is entitled to bring the dispute for settlement before the courts the Republic of Latvia and the laws of the Republic of Latvia shall be deemed as applicable law of these Terms and Conditions and any dispute thereof.
9.6 The Company and the User are not allowed to transfer their rights and obligations under these Terms and Conditions to any other party without prior written agreement of Capitalia.
9.7 These Terms and Conditions have been drafted in the English language and it is deemed that the User has signed and agreed to them once the User Profile is registered at the Platform, while the Company has signed and agreed to them at the signing of the Loan Agreement.
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