Last modified: July 13, 2016
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The following terms constitute a binding agreement (“Agreement”) between Business Borrower/Guarantor(s) (“you,” “Borrower,” “Business Borrower,” or “Business Borrower Member”) and StreetShares, Inc., a Delaware Corporation, and its affiliates, including StreetShares Lending Company, LLC (“SLC,” and, together with StreetShares, Inc., “StreetShares,” “we,” or “us”).
BY ELECTRONICALLY SIGNING THE AGREEMENT, THE BORROWER HAS SIGNIFIED AGREEMENT TO THESE TERMS.
1. Registration as a Business Borrower. The Borrower is applying to register with us as a Business Borrower Member on the Site. Registration permits the Borrower, through a representative (“Borrower Representative”), to post qualifying loan requests (“Loan Requests”) on the Site. Registration on the Site as a Business Borrower Member is restricted to business entities that satisfy the StreetShares credit policy, and the Borrower must meet other financial criteria in order for the Borrower to be eligible to post a Loan Request. If for any reason the Borrower does not qualify or the Borrower later ceases to qualify for a StreetShares loan, StreetShares may terminate the Borrower’s Loan Request and deny the Borrower the ability to make additional Loan Requests.
2. Account Verification. The Borrower Representative authorizes us to initiate debit and credit entries to the Borrower’s bank account in an amount of $0.01 to $0.99 for account verification purposes through the automated clearinghouse (“ACH”) network. Credit entries will be reversed, and no funds will be added or subtracted from the Borrower’s account during this verification step. The Borrower understands that if we are unable to verify the Borrower’s bank account for any reason, we will cancel the Borrower’s application and the Borrower’s Loan Request will not be posted on the Site.
3. Loan Requests, Bid Process, and Closing. The Borrower’s Loan Request must include all information required by StreetShares. Loan Request will be approved or denied for listing on the StreetShares Site.
Approved Loan Requests will be posted on the Site for Investor Members to view, evaluate, and make bids to back portions of loans to Business Borrowers (each a “StreetShares Loan”). A bid is made when an investor member (“Investor” or “Investor Member”) evaluates a Borrower Loan Request and makes and enters that portion of Borrower’s Loan Request the Investor Member wishes to fund and the interest rate that the Investor Member requires in order to participate in the funding of the loan. Multiple Investor Member bids create an auction to fund Borrower’s Loan Request. Winning bids are called “Loan Shares.” Through the StreetShares’ marketplace, the Investor Member bids with the interest rate demands are combined to fund Borrower’s Loan Request.
Borrower acknowledges that the full Loan Request may not be subject to the auction process as described above. First, in order to align interests of StreetShares with the interests of its Investor Members and to ensure that the Borrower’s Loan Request is fully funded, StreetShares may participate in each auction by selecting a portion of Borrower’s Loan Request to fund. Borrower acknowledges that StreetShares reserves the right to draw upon various sources for its own investment and that the StreetShares’ Loan Share is permanent. In other words, StreetShares cannot be outbid. The StreetShares’ portion of Borrower’s Loan Request will remain even if Investor Members on the Site enter bids at an interest rate below that offered by StreetShares.
Second, portions of the Loan Request may be funded by one or more Investors outside of the auction process on the StreetShares platform. This may, but will not necessarily, take the form of a “pre-funded” portion of the loan, the amount of which is disclosed to auction bidders on the Site.
The interest rate offered to the Borrower will be the weighted average of all participating Loan Shares, including those funded by StreetShares, by Investor Members bidding through the auction process, or by other means. Loan Requests will be in the amount of $2,000 to $250,000, subject to approval by StreetShares. If, in accordance with this Agreement, at the end of the auction period, the Borrower’s Loan Request attracts funding commitments equal to or greater than 80% of the Borrower’s approved Loan Request amount, then the Borrower may elect to accept a loan from StreetShares. The offered StreetShares Loan will specify both the blended interest rate and the funded amount (between 80% and 100% of the total approved Loan Request amount), and the Borrower will then have the opportunity to accept or reject the offered StreetShares Loan.
Borrower understands that Borrower’s loan may be backed by Investor Members, but that Investor Members do not lend directly to Borrowers. Loans are issued to Borrowers from SLC. As repayments are collected from Borrower, StreetShares will pay Investor Members their pro rata share of each loan, less a servicing fee. The principal amount of the loan will be the aggregate sum of successful Loan Shares, but shall in no event exceed 100% of the approved Loan Request amount. The term of the loan shall be the approved Loan Request term. Loan funding is accomplished through ACH transactions, and it may take several days for funds to be deposited. The Borrower may not post more than one Loan Request on the Site at a time and the Borrower may not have more than two loans outstanding at any given time.
4. Final Terms Are Only in Business Borrower Loan Agreement or Business Borrower Line Draw Agreement.The Borrower agrees and acknowledges that any Investor Member bids, ongoing funding updates during the auction, and pre-closing Loan Shares disclosed to the Borrower are only estimates and may vary. All Loan Shares are subject to change until closing. The final loan terms are those included in the Business Borrower Loan Agreement, which is electronically signed by the Borrower when the Borrower accepts the funding commitment bids to close the loan.
5. Origination or Draw Fee. If the Borrower’s Loan Request results in an issued loan, the Borrower must pay us a one-time non-refundable origination fee. In the case of a line of credit, each draw upon that line will result in a one-time non-refundable draw fee. The amount of the estimated fee will be provided during the loan booking process. The actual fee will be stated in the final disclosures provided to Borrower prior to acceptance. Notwithstanding the foregoing, no amount of the finally determined fee is refundable. This fee will be deducted from the Borrower’s loan proceeds, so the loan proceeds delivered to the Borrower will be less than the full amount of the Borrower’s issued loan. The Borrower acknowledges that the origination fee will be considered part of the principal on the Borrower’s loan and is subject to the accrual of interest.
6. Loan Servicing. The Borrower acknowledges and agrees that StreetShares shall serve as the loan servicer for any and all loans the Borrower receives and that StreetShares may delegate servicing to one or more third-party entities (“Delegate” or “Delegates”). As loan servicer, StreetShares or its Delegate(s) will administer and collect on the Borrower’s loans. All loan servicing is accomplished electronically. Payments are made weekly through StreetShares or its Delegate performing an automatic deduction of the payment amount via ACH transaction.
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS BOTH WITHIN THE SITE AND OUTSIDE OF THIS SITE. IT IS PROHIBITED FOR USERS TO CONTACT EACH OTHER OUTSIDE OF THE SITE FOR PURPOSE RELATED TO ACTIVITIES ON THE SITE. CONSISTENT WITH THIS PROHIBITION, STREETSHARES EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR INTERACTIONS BETWEEN STREETSHARES MEMBERS OUTSIDE OF THE SITE.
8. Other Borrower Obligations. The individual representing the Borrower entity in this contract is also one of the “Guarantors” of the loan. You certify that the Borrower (a) is a partnership, limited liability company, or incorporated entity lawfully formed in the United States, and, in the case of the Guarantor(s), a U.S. citizen or permanent resident and (b) will not, in connection with the Borrower’s Loan Request: (i) make any false, misleading, or deceptive statements or omissions of fact in the Borrower’s listing, including but not limited to in the loan title, pitch, loan description of the Borrower, supporting documents and financial statements provided to StreetShares, images, text, or any other information provided to StreetShares or provided to Investors, directly or indirectly, through the Site (ii) misrepresent the Borrower’s identity, or describe, present or portray the Borrower’s self as an entity or person other than the Borrower’s self; (iii) give to or receive from, or offer or agree to give to or receive from any StreetShares Member or other person any fee, bonus, additional interest, kickback, or thing of value of any kind except in accordance with the terms of the Borrower’s loan; (iv) represent the Borrower’s self to any person, as a representative, employee, or agent of StreetShares, or purport to speak to any person on our behalf; (v) in communications on the Site related to the Borrower’s loan request, provide information upon which a discriminatory lending decision may be made, such as the Borrower’s race, color, religion, national origin, sex, marital status, age, any exercise of the Borrower’s consumer rights or the existence of alimony, child support, or separate income; or (vi) use any of the loan proceeds to fund any personal, family, household, or other nonbusiness purposes, including any post-secondary educational expenses, including, but not limited to, tuition, fees, books, supplies, miscellaneous expenses, or room and board.
The Borrower acknowledges and agrees that we may rely without independent verification on the accuracy, authenticity, and completeness of all information the Borrower provides to us. The Borrower certifies that the proceeds of the loan will not be used for the purpose of purchasing or carrying any securities or to fund any illegal activity.
9. Verification. We reserve the right to verify the accuracy of information the Borrower provides and to terminate this Agreement and remove the Borrower’s loan request in case of any inaccuracy or omission in the Borrower’s Loan Request or the Borrower’s application, or any other violation of this Agreement. We reserve the right to verify any information the Borrower submits through the production of appropriate documentation, and also reserve the right to conduct such verification through a third party. The Borrower hereby authorizes us to request and obtain data from a third party to verify any information the Borrower provides us in connection with the Borrower’s registration as a Borrower Member on the Site.
10. No Guarantee. WE DO NOT WARRANT OR GUARANTEE (1) THAT THE BORROWER’S REQUEST WILL BE FUNDED, (2) THAT THE BORROWER WILL RECEIVE A LOAN AS A RESULT OF POSTING A REQUEST, OR (3) THAT THE BORROWER WILL RECEIVE ANY PARTICULAR INTEREST RATE IF A LOAN IS RECEIVED.
12. Termination of Registration.We may terminate this Agreement and the Borrower’s status as a Borrower Member at any time if we determine that the Borrower committed fraud or made a misrepresentation in connection with the Borrower’s registration on the Site or any application or request for a loan, performed any prohibited activity, or otherwise failed to abide by the terms of this Agreement. In such event, we will have all remedies authorized or permitted by this Agreement and applicable law. We may, in our sole discretion, with or without cause and with or without notice, restrict the Borrower’s access to the Site.
14. Entire Agreement. This Agreement represents the entire agreement between the Borrower and StreetShares regarding the subject matter of the Agreement and supersedes all prior or contemporaneous communications, promises and proposals, whether oral, written or electronic, between us with respect to the Borrower’s registration as a Borrower Member and the Borrower’s Loan Request. Note, however, that the final terms in the Business Borrower Loan Agreement, if inconsistent with any terms in this Agreement, will supersede the terms in this Agreement.
16. Notices. The Borrower agrees that we may send the Borrower any and all notices and other communications related to this Agreement, any Loan Requests the Borrower posts, or the Borrower’s status as a Borrower Member by sending an email to the Borrower Representative’s registered email address or posting the notice or communication on the Site, and notice or communication shall be deemed to have been duly given and effective when we send it or post it on the Site. The Borrower acknowledges that the Borrower Representative has sole access to the registered email account and the Borrower’s area on the Site and that communications from us may contain sensitive, confidential, and collections-related communications. If the Borrower Representative’s registered email address changes, the Borrower must notify us immediately of the change by sending an email to email@example.com or calling 1.800.560.1435. The Borrower also agrees to update promptly the Borrower’s registered residence address and telephone number on the Site if they change.
17. Miscellaneous. StreetShares reserves the right to modify the terms of this Agreement at any time. If we modify these terms, we will send or post notice of such changes by email or via the StreetShares platform. We will also revise the “Updated” date at the bottom of each page of the Agreement. You understand and agree that your membership is an ongoing relationship of indefinite length, that the terms of this Agreement are subject to change, and that your future membership relationship may be governed by new terms. By continuing to access your membership account through the Site after we have provided notice of a modification, you are indicating that you agree to be bound by the modified terms. Because your membership is ongoing, the terms of this Agreement, in current or modified form, shall survive the duration of any loan requested or received by you.
The parties acknowledge that there are no third-party beneficiaries to this Agreement. The Borrower may not assign, transfer, sublicense, or otherwise delegate the Borrower’s rights or obligations under this Agreement to another person without our prior written consent. Any such assignment, transfer, sublicense, or delegation in violation of this Section 17 shall be null and void.
Choice of Law and Venue. This Borrower Membership Agreement shall be governed by the laws of the Commonwealth of Virginia without regard to any principle of conflict of laws that would require or permit the application of the laws of any other jurisdiction. If your business obtains a loan, the terms of the loan and the loan agreement will be governed by the laws of the Commonwealth of Virginia to the extent not preempted, without regard to any principle of conflicts of laws that would require or permit the application of the laws of any other jurisdiction. StreetShares is located in Virginia, and the parties agree that any and all lending activities, negotiations and loan funding take place in the Commonwealth of Virginia.
No Waiver. Any waiver of a breach of any provision of this Agreement will not be a waiver of any other subsequent breach. Failure or delay by either party to enforce any term or condition of this Agreement will not constitute a waiver of such term or condition.
Severability. If at any time after the date of this Agreement, any of the provisions of this Agreement shall be held by any court of competent jurisdiction to be illegal, void, or unenforceable, such provision shall be of no force and effect, but the illegality and unenforceability of such provision shall have no effect upon and shall not impair the enforceability of any other provisions of this Agreement. The headings in this Agreement are for reference purposes only and shall not affect the interpretation of this Agreement in any way.
No Usury. Any note between StreetShares and Borrower is subject to the express condition that, at no time shall Borrower be obligated or required to pay interest at a rate that could subject StreetShares to either civil or criminal liability as a result of such rate exceeding the Highest Lawful Rate (as defined below), that Borrower is permitted by law to contract to agree to pay. As used in this paragraph, the term “Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the laws applicable to a lender which are presently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum nonusurious interest rate than applicable laws now allow. The interest rate paid by a Borrower on a StreetShares’ loan is determined by an auction process that may involve several outside parties. As a result, StreetShares and Borrower acknowledge that StreetShares unequivocally disclaims any intention to charge or collect interest in excess of the Highest Lawful Rate. It is the intention of StreetShares and Borrower to conform strictly to any applicable usury laws. Accordingly, if StreetShares inadvertently contracts for, charges, or receives any consideration which constitutes interest in excess of the Highest Lawful Rate, then any such excess shall be canceled and, if previously paid, shall be applied to the outstanding principal balance under the note or be refunded to Borrower. StreetShares and Borrower agree that any origination fee paid by Borrower to StreetShares is for the separate consideration of accessing the StreetShares loan marketplace, and participating in and obtaining funding from, the StreetShares’ auction process, as a Borrower Member and shall not be calculated in determining the Highest Lawful Rate.
18. Notice of Dispute Resolution by Binding Arbitration and Class Action/Class Arbitration Waiver.
a. IMPORTANT: PLEASE READ CAREFULLY. THE FOLLOWING PROVISION (“ARBITRATION PROVISION”) CONSTITUTES A BINDING AGREEMENT THAT LIMITS CERTAIN RIGHTS, INCLUDING YOUR RIGHT TO OBTAIN RELIEF OR DAMAGES THROUGH COURT ACTION OR AS A MEMBER OF A CLASS. THAT MEANS THAT, IN THE EVENT THAT YOU HAVE A COMPLAINT AGAINST STREETSHARES THAT THE STREETSHARES CUSTOMER SERVICE DEPARTMENT IS UNABLE TO RESOLVE TO YOUR SATISFACTION, YOU AND STREETSHARES AGREE TO RESOLVE YOUR DISPUTE THROUGH BINDING ARBITRATION OR SMALL CLAIMS COURT, INSTEAD OF THROUGH COURTS OF GENERAL JURISDICTION OR THROUGH A CLASS ACTION. BY ENTERING INTO THIS AGREEMENT, YOU AND STREETSHARES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND TO PARTICIPATE IN ANY CLASS ACTION, EXCEPT IN CASES THAT INVOLVE PERSONAL INJURY.
b. “Claim” shall mean any dispute or controversy arising out of or relating to this Agreement, your use of the StreetShares site, and/or the transactions, activities, or relationships that involve, lead to, or result from any of the foregoing, (except for cases pending in Small Claims Court as provided in Section 18(h) below, or claims for personal injury). Claims include, but not limited to breach of contract, fraud, misrepresentation, express or implied warranty, and equitable, injunctive, or declaratory relief, as well as claims relating to loan servicing, credit/collections, and securities matters, regardless of the originating source (common law, statute, constitution, regulation, etc.). Claims include matters arising as initial claims, counter-claims, cross-claims, third-party claims, or otherwise and include those brought by or against your assigns, heirs, or beneficiaries.
c. Either party to this Agreement has the right to require binding arbitration as the sole and exclusive forum and remedy for resolution of a claim between you and StreetShares. The party initiating arbitration shall do so with the American Arbitration Association (the “AAA”). The procedure shall be governed by the AAA Commercial Rules, and the parties stipulate that the law of the Commonwealth of Virginia applies, without regard to conflict-of-law principles. In the case of a conflict between the rules and policies of the administrator and this Arbitration Provision, this Arbitration Provision shall control, subject to controlling law, unless all parties to the arbitration consent to have the rules and policies of the administrator apply. Arbitration shall take place in Arlington, Virginia, within the U.S. Eastern District of Virginia, or in such location as agreed upon by the parties.
d. Absent agreement among the parties, the presiding arbitrator shall determine how to allocate the fees and costs of arbitration among the parties according to the administrator’s rules or in accordance with controlling law if contrary to those rules. Each party shall bear the expense of that party’s attorneys, experts, and witnesses, regardless of which party prevails in the arbitration, unless controlling law provides a right for the prevailing party to recover fees and costs from the other party. Notwithstanding the foregoing, if the arbitrator determines that your claim is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), we shall not be required to pay any fees or costs of the arbitration proceeding, and any previously paid fees or costs shall be reimbursed by you.
e. If the amount in controversy exceeds $50,000, any party may appeal the arbitrator’s award to a three-arbitrator panel within 30 days of the final award. Additionally, in the event of such an appeal, any opposing party may cross-appeal within 30 days after notice of the appeal. The three-arbitrator panel may consider all of the evidence and issue anew award, and the panel does not have to adopt or give any weight to the first arbitrator’s findings of fact or conclusion. This is called “de novo” review. Costs and conduct of any appeal shall be governed by this Arbitration Provision and the administrator’s rules, in the same way as the initial arbitration proceeding. Any award by the individual arbitrator that is not subject to appeal, and any panel award on appeal, shall be final and binding, except for any appeal right under the Federal Arbitration Act (FAA), and may be entered as a judgment in any court of competent jurisdiction.
f. The parties agree that this Arbitration Provision is made pursuant to a transaction between you and StreetShares that involves and affects interstate commerce and therefore shall be governed by and enforceable under the FAA. The arbitrator will apply substantive law consistent with the FAA and applicable statutes of limitations. The arbitrator may award damages or other types of relief permitted by the law of the Commonwealth of Virginia, subject to the limitations set forth in this Agreement. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court. The parties also agree that the proceedings shall be confidential to protect intellectual property rights.
g. IF YOU DO NOT AGREE TO THE TERMS OF THIS ARBITRATION AGREEMENT, YOU MAY OPT OUT OF THIS ARBITRATION PROVISION BY SENDING AN ARBITRATION OPT-OUT NOTICE TO STREETSHARES, INC., 1900 CAMPUS COMMONS DRIVE, SUITE 200, RESTON, VA 20191, THAT IS RECEIVED AT THIS ADDRESS WITHIN 30 DAYS OF YOUR FIRST ELECTRONIC ACEPTANCE OF THIS FORM. YOUR OPT-OUT NOTICE MUST CLEARLY STATE THAT YOU ARE REJECTING ARBITRATION; IDENTIFY THE AGREEMENT TO WHICH IT APPLIES BY DATE; PROVIDE YOUR NAME, ADDRESS, AND SOCIAL SECURITY NUMBER; AND BE SIGNED BY YOU. YOUR MAY CONVEY THE OPT-OUT NOTICE BY U.S. MAIL OR ANY PRIVATE MAIL CARRIER (E.G. FEDERAL EXPRESS, UNITED PARCEL SERVICE, DHL EXPRESS, ETC.), SO LONG AS IT IS RECEIVED AT THE ABOVE MAILING ADDRESS WITHIN 30 DAYS OF YOUR FIRST ELECTRONIC ACCEPTANCE OF THE TERMS OF THIS AGREEMENT. IF THE NOTICE IS SENT BY A THIRD PARTY, SUCH THIRD PARTY MUST INCLUDE EVIDENCE OF HIS OR HER LEGAL AUTHORITY TO SUBMIT THE OPT-OUT NOTICE ON YOUR BEHALF. IF YOUR OPT-OUT NOTICE IS NOT RECEIVED WITHIN 30 DAYS, YOU WILL BE DEEMED TO HAVE ACCEPTED ALL TERMS OF THIS ARBITRATION AGREEMENT.
h. StreetShares agrees not to invoke our right to arbitrate an individual Claim you may bring in Small Claims Court or an equivalent court, if any, so long as the Claim is pending only in that court. NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT. Unless consented to in writing by all parties to the arbitration, no party to the arbitration may join, consolidate, or otherwise bring claims for or on behalf of two or more individuals or unrelated corporate entities in the same arbitration unless those persons participated in the same loan request or bid transaction. Unless consented to in writing by all parties to the arbitration, an award in arbitration shall determine the rights and obligations of the named parties only, and only with respect to the claims in arbitration, and shall not (a) determine the rights, obligations, or interests of anyone other than a named parties, or resolve any Claim of anyone other than a named party; nor (b) make an award for the benefit of, or against, anyone other than a named party. No administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this Section 18(h) and any attempt to do so, whether by rule, policy, arbitration decision, or otherwise, shall be invalid and unenforceable. Any challenge to the validity of this Section 18(h) shall be determined exclusively by a court and not by the administrator or any arbitrator.
i. This Arbitration Provision shall survive (i) suspension, termination, revocation, closure, or amendments to this Agreement and the relationship of the parties; (ii) the bankruptcy or insolvency of any party or other person; and (iii) any transfer of any loan or Note or any other promissory note(s) which you owe, or any amounts owed on such loans or notes, to any other person or entity. If any portion of this Arbitration Provision other than the prohibitions on class arbitration in Sections 18(a) and 18(h) is deemed invalid or unenforceable under any law or statute consistent with the FAA, it shall not invalidate the other provisions of this Arbitration Provision or this Agreement; if the prohibition on class arbitration is deemed invalid, however, then this entire Arbitration Agreement shall be null and void.
j. THE PARTIES ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE, BUT WILL NOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT UPON ELECTION OF ARBITRATION BY ANY PARTY. THE PARTIES HERETO WAIVE A TRIAL BY JURY IN ANY LITIGATION RELATING TO THIS AGREEMENT, THE CORRESPONDING MEMBER LOAN, OR ANY OTHER AGREEMENTS RELATED THERETO.
19. Scrivener’s Error and Savings Clause. StreetShares reserves the right to adjust all typographical, computer, calculation, or clerical errors discovered in this Agreement or any of the loan documents. In the event this procedure is used, you will be provided access to corrected copies of the changed document(s). Additionally, both parties agree to cooperate in good faith to amend or reform this Agreement or any of the loan documents should StreetShares reasonably conclude that such amendment or reformation is required to comply with applicable law or regulation and that such amendment or reformation can be accomplished without defeating the essential purpose of the Agreement or relevant document.