Terms & Conditions
www.finnestpro.com is an automatic, standardized platform operated by Finnest GmbH having its seat in Schleifmühlgasse 6-8, Top 815, A-1040 Vienna, Austria (hereinafter: "Finnest") for the distribution of financial instruments between companies and professional investors (hereinafter referred to as the "Platform").
Using the Platform, companies interested in financing which have their seat in Austria or in the Federal Republic of Germany can offer as borrower (hereinafter collectively referred to as "Borrower") to professional investors having their seat in Austria or in the Federal Republic of Germany as lenders (hereinafter collectively referred to as "Investors") the conclusion of loans or Schuldscheindarlehen agreements (hereinafter referred to as "Loan" or, respectively, "Loan Agreement").
Financial instruments other than Loans may also be procured and processed on the Platform on the basis of separate individual agreements.
Loans are granted by (i) bilateral Loan Agreements, in which case the Investors either dispose of a permission to conduct lending operations or do not need a permission for granting credits on a commercial basis, or (ii) via an investor disposing of a permission to conduct lending operations as paying agent / agent (hereinafter referred to as "Paying Agent") who concludes the Loan Agreement and transfers shares in the Loan Agreement by means of a transfer certificate to further Investors.
The Platform is solely used on the basis of these General Terms and Conditions (hereinafter referred to as "T&C").
§ 1 Prerequisite for the use of the Platform
1.1. For Borrowers
- The Borrower is a legal person having its seat in Austria or Germany
- The Borrower is registered on the Platform and has agreed to the T&C.
1.2. For Investors
- The Investor is a legal person having its seat in Austria or Germany.
- The Investor is registered on the Platform and has agreed to the T&C.
If the Investor has his seat in the Federal Republic of Germany and/or if an Investor having his seat in Austria uses the Platform to conclude a Loan Agreement with a Borrower having his seat in the Federal Republic of Germany, the Investor shall be
- an insurance company pursuant to sec. 1 of the Insurance Supervision Act (Versicherungsaufsichtsgesetz, VAG idgF) including pension funds in the sense of sec. 236 par. 1 VAG for which granting Loans is part of its typical business; or
- a holding company which is recognized as holding company on the basis of the Holding Companies Act (Gesetz über Unternehmensbeteiligungsgesellschaften, UBGG) and for which granting Loans is part of its typical business; or
- a credit institution entitled to conduct lending operations on a commercial basis in the Federal Republic of Germany; or
- a capital management company in the sense of sec. 17 of the Code of Capital Investment (Kapitalanlagegesetzbuch, KAGB) including AIF capital management companies or an externally managed investment company in the sense of sec. 1 par. 11, 13 KAGB which only provides collective asset management including granting of Loans or, besides that, exclusively the services or ancillary services set out in sec. 20 par. 2, 3 KAGB as banking business; or
- any other institutional investor who does not need a permission pursuant to sec. 32 par. 1 sentence 1 of the Banking Act (Kreditwesengesetz, KWG) to grant credits on the German market; or
an EU management company in the sense of sec. 1 par. 17 KAGB including AIFM pursuant to the Directive 2011/61/EU or EU investment assets pursuant to sec. 1 par. 8 KAGB which only provides collective asset management including granting of Loans or, besides that, exclusively the services or ancillary services set out in Article 6 par. 3 of the Directive 2009/65/EC or in Article 6 par. 4 of the Directive 2011/61/EU as banking business; or
If the Investor has his seat in Austria and uses the Platform to conclude a Loan Agreement with a Borrower having his seat in Austria, the Investor shall be
- an insurance company, or
- a pension fund, or
- a credit institution, or
- an AIFM, or
an institution which does not need a bank charter for granting credits on a commercial basis.
- The Investor must not act as Borrower on the Platform.
1.3. For the Paying Agent
- The Paying Agent is a legal person having its seat in Austria or Germany
- The Paying Agent is registered on the Platform and has agreed to the T&C.
- If the Paying Agent has its seat in the Federal Republic of Germany and/or if a Paying Agent having its seat in Austria uses the Platform to conclude a Loan Agreement with a Borrower having its seat in the Federal Republic of Germany, the Paying Agent must be entitled to conclude at least lending and financial transaction operations on a commercial basis in the Federal Republic of Germany.
- If the Paying Agent has his seat in Austria and uses the Platform to conclude a Loan Agreement with a Borrower having his seat in Austria, the Paying Agent must be a legal person disposing of a bank licence.
§ 2 Conclusion of a procurement agreement with Finnest
2.1. Conclusion of contract with Investor
In order to use the Platform, the Investor has to register via an authorised representative by entering, amongst other things, company name, commercial or, respectively, companies’ register number and address of the Investor as well as name, activity, e-mail address and date of birth of the authorised representative and a password on the Platform. Thereafter, he will receive a confirmation link via e-mail. With the confirmation link, the T&C and, provided that the Investor has his seat in the Federal Republic of Germany, information pursuant to the regulation on financial investment procurement will be provided to the Investor. By clicking on the confirmation link, the Investor submits an offer for conclusion of a procurement agreement with Finnest which is accepted by Finnest activating the Platform for the Investor (the "Procurement Agreement Investor"). If Finnest deems necessary the submission of further documents for verifying the Investor’s entitlement to use the Platform pursuant to clause 1.2, the Investor is obliged to submit the respective documents upon request of Finnest.
2.2. Conclusion of contract with Borrowers
The procurement agreement between Finnest and the Borrower including the T&C is concluded by means of individual communication (the "Procurement Agreement – Borrower"). Information on the Procurement Agreement – Borrower can be obtained by a potential Borrower by sending an e-mail to firstname.lastname@example.org.
§ 3 Subject matter of the procurement agreement
Due to the procurement contract concluded pursuant to § 2, Finnest shall act as procurement agent via the Platform for the conclusion of Loan Agreements between Borrowers and Investors. The interest rate of the Loan Agreements shall be composed of a reference interest rate (Mid-Swap or Euribor) plus margin (risk premium for the Borrower) (hereinafter referred to as "Margin") which shall be fixed two business days after the order book for the term of the Loan Agreement has been closed.
The respective Borrower shall be the provider of the respective Loan. Finnest shall be neither provider nor Borrower as regards the respective Loan, nor shall Finnest be obliged to provide advisory services vis-à-vis the Borrower. Finnest does not issue recommendations to conclude agreements on Loans. Every Investor shall assess in his own responsibility whether the conclusion of a Loan represents an appropriate form of investment for him as regards economic and legal, in particular also fiscal aspects.
3.2. How the Platform works
Invitation by the Borrower to submit an offer for a Loan
Finnest shall enable Borrowers to invite Investors to submit a binding offer on the conclusion of a Loan Agreement (without reservation of approval: hereinafter referred to as "Commitment") with the respective Borrower during a time period initially determined by the Borrower (hereinafter referred to as "Order Book Period") under the following conditions. The Order Book Period generally consists of a shorter period of time in which the potential Investor may indicate his interest ("Indication Period") and a longer period of time in which the Investor may submit a Commitment ("Commitment Period"). During the Order Book Period, the Borrower is entitled to extend the closing of the order book one time. The extension period may at most reach the time period of the initial Order Book Period.
- The Borrower invites the Investor to submit a Commitment on the Platform by the Borrower making available for retrieval, in a personal dataroom on the Platform, the Loan Agreement including the transfer certificate, economic information such as an information memorandum, know-your-customer documents, and the three most recently published annual financial statements of the Borrower (hereinafter collectively referred to as "Financing Documentation"). In addition, the Borrower may present further documents in the dataroom which should make it easier for the Investors to make an investment decision.
- Finnest will publish the Financing Documentation on behalf of the Borrower without verifying the correctness as regards content or, respectively, the completeness of the information of the Borrower. The Borrower alone shall be held liable for the correctness as regards content and completeness of the Financing Documentation. Any forecasts made by the Borrower do not contain binding statements as regards the future development of the Borrower or of his obligations resulting from the respective Loan.
The Borrower sets a maximum amount for the Margin as well as a minimum and maximum loan amount for the Commitment to be submitted by the Investor.
Submission of an Indication or, respectively, a Commitment by the Investor
After having finished the registration on the Platform, the Investor may indicate his non-binding interest ("Indication") and/or submit a Commitment for the conclusion of a Loan Agreement as lender vis-à-vis a Borrower via the Platform. The authorised representative acting for the Investor on the Platform must be authorised to submit an Indication or a Commitment.
During the Indication Period, Indications or Commitments may be submitted. In the Commitment Period immediately following this period, only those Investors who placed at least one Indication before will be admitted.
Subsequently, Finnest, as intermediary, will transmit the Indication or the Commitment of the Investor to the respective Borrower. Until the end of the Order Book Period set by the Borrower, the Investor may change or, respectively, withdraw the Indication or the Commitment at any time, whereby, however, the possible extension of the Order Book Period pursuant to § 3.2a. shall be observed. In case the Order Book Period is extended, Finnest will inform the Investor thereof accordingly.
Commitments of the Investor are admissible under the following conditions:
- The Investor chooses a preferred reference interest rate, Margin and Loan amount within the limits set by the Borrower.
- Commitments shall at least amount to EUR 100,000.00 and must be divisible by EUR 100,000.00. The Borrower may define higher minimum amounts.
Until the end of the Order Book Period, the Investor may submit Indications. However, when the Order Book Period has ended, only Commitments will be considered for the conclusion of a Loan Agreement.
Taking Effect of Loan Agreements without Paying Agent
After the Order Book Period has ended, Finnest shall transmit to the Borrower the Commitments of the Investors involved cumulated according to Margins and Loan amounts. The Borrower chooses a uniform Margin at which all Loan Agreements shall take effect. Investors having offered a smaller Margin will automatically receive the higher, uniform Margin.
The Borrower is free to refuse Commitments made by Investors, irrespective of whether these comply with, are below or are above the uniform Margin. The Borrower is in particular entitled to refuse Commitments if the target amount of financing (as defined in f.) would be exceeded by more than 20 % in case the Commitments are accepted.
Finnest, as intermediary of the Borrower, shall transmit to those Investors who have offered at least the Margin chosen by the Borrower and who have been chosen and not refused by the Borrower, a declaration of acceptance of the Borrower via e-mail to the e-mail address indicated during registration.
The Loan Agreement will only enter into effect upon its execution by the Investor and the Borrower. Finnest will complete the Loan Agreement published in the dataroom with the individual data of the Investor and will make available the Loan Agreement to the Investor and to the Borrower. The law firm Herbst Kinsky, Dr. Karl Lueger-Platz 5 in 1010 Vienna, Austria will assume the execution of the Loan Agreement.
Taking Effect of Loan Agreements with Paying Agent
Upon submission of a Commitment, an Investor may offer the Borrower on the Platform to act as Paying Agent for the Loan. If this offer is accepted by the Borrower, any further Investors will be informed thereof upon transmission of the declaration of acceptance of the Borrower prior to execution of the Loan Agreement. In case several Investors declare their interest for acting as Paying Agent, the Borrower shall choose the desired Paying Agent.
In this case, the Loan Agreement will be concluded between the Paying Agent and the Borrower for the total Loan amount resulting from all accepted Commitments. Shares in the Loan Agreement will be transferred by the Paying Agent via a transfer certificate to the further Investors whose Commitments were accepted by the Borrower. Finnest will complete the Loan Agreement published in the dataroom with the individual data of the Paying Agent and the transfer certificates published in the dataroom as annex to the Loan Agreement with the individual data of the Paying Agent and of the further Investors. The law firm Herbst Kinsky, Dr. Karl Lueger-Platz 5 in 1010 Vienna, Austria will assume the simultaneous execution of the Loan Agreement and of the transfer certificates.
The Paying Agent shall not assume any obligations vis-à-vis an Investor and shall not enter into any representation, contract or trustee relationship and shall not assume any obligation to care of property with regard to an Investor. The Paying Agent shall not be held liable vis-à-vis the Borrower jointly and severally with the further Investors and shall not be in a relationship of joint creditor obligation with the further Investors.
Fulfilment of the Loans
In case of transactions without Paying Agent, the Investors shall pay the respectively due Loan amount directly to the account of the Borrower indicated in the Loan Agreement. Alternatively, Investors may grant to the Borrower a SEPA direct debit mandate via the Platform which entitles the Borrower to recover the loan amount agreed upon from the account made known by the Investor. The Borrower shall pay back the loan amount, and shall pay the interest agreed upon, to the account of the Investor indicated in the Loan Agreement, for the purpose of which the Investor shall be granted in annex 4 of the Loan Agreement a SEPA direct debit mandate to recover the amounts due.
In case of transactions involving a Paying Agent, the Paying Agent shall pay the respectively due Loan amount directly to the account of the Borrower indicated in the Loan Agreement, if and to the extent that the Loan amount was made available to the Paying Agent by the Investors. The Borrower shall pay back the Loan amount, and shall pay the interest agreed upon, to the account of the Paying Agent indicated in the Loan Agreement on behalf of the Investors, for the purpose of which the Paying Agent shall be granted in annex 4 of the Loan Agreement a SEPA direct debit mandate to recover the amounts due.
With the exception of the consideration agreed upon pursuant to § 4, Finnest will at no time obtain possession or ownership of the loan amounts, interest or other funds of Investors and/or Borrowers.
Procedure in case of over-subscription
The Borrower shall announce in the dataroom a target amount for the total Loan amount for Loans issued within the context of an transaction (hereinafter referred to as "Target Amount").
The Borrower reserves his right to also accept (total) Loan amounts smaller than the Target Amount.
If the cumulated Commitments at the end of the Order Book Period exceed the Target Amount by at most 20 %, the Borrower may accept all Commitments. If the cumulated Commitments at the end of the Order Book Period exceed the Target Amount by more than 20 %, the Commitment of the Investor having offered the highest Margin shall be reduced accordingly. If several Investors have offered this highest Margin, their Commitments shall be reduced on a pro-rata basis.
§ 4 Consideration for the procurement service offered by Finnest
Upon conclusion of a procurement agreement with Finnest, the Borrower undertakes to make a one-off payment to Finnest amounting to at most 1.95 % of the respective loan amount concluded for each Loan Agreement, however, at least EUR 9,500.00 upon opening of the dataroom – regardless of whether a Loan Agreement has been concluded.
§ 5 Disclaimer
The information shall neither be deemed an advice or an investment recommendation nor a recommendation or invitation to the investment or, respectively, purchase and sale of financial products mentioned. Finnest will neither provide advice to nor support the Investor in any other way prior to, during and after any investment in this regard. In particular, Finnest will not even provide information, details, assessments or recommendations to the Investor as regards an investment opportunity. Finnest cannot and will not, in particular, assess whether and to what extent the knowledge, investment objectives, the risk profile, the risk development and structure of the property of the Investor, or any investments already planned by him or his future needs conform with the potential investments.
§ 6 Copyright
The contents on the Platform are protected by copyright. Downloading or saving applications or programs contained on the Platform as well as their (complete or partial) reproduction, transmission, modification or also linking the contents of the Platform shall only be permitted with the express and written consent of Finnest.
However, it is permitted to print, download or save individual pages or parts of this web page, but only within the framework of the provisions of the applicable copyright law and, moreover, only if copyright notices or other designations protected by law are neither removed nor altered.
§ 7 Information content & up-to-datedness
Finnest ensures to take utmost care when researching the information published on the Platform as well as when choosing the sources of information used by Finnest. However, Finnest shall not assume any liability for the correctness, completeness and up-to-datedness or the constant availability of the information or, respectively, the source of information made available.
Finnest only provides the Platform for loan projects. Finnest shall not assume any liability for the correctness and completeness of the information, in particular business documents, made available on the Platform by providers as well as for the possible feasibility of project/business plans of these companies.
§ 8 Data protection
The safety and confidentiality of user data is of primary concern for Finnest. By using the Platform, the users of the Platform, Investor and provider (“User”) agree that Finnest collects and uses user data in accordance with the following principles. Some user data is transmitted by the User himself upon registering on the Platform. This includes company name, first name, last name, residence/registered office, e-mail address and bank reference. If Users conduct transactions, Finnest receives transaction data (e.g. the amount of a loan). Further data is automatically collected by Finnest, whereby also so-called cookies are used.
Finnest uses the data to supply the Platform, to be able to provide services thereon which are as optimal as possible as well as to adjust the services, offers and corporate communication on the Platform to meet the needs and preferences of the Users. Corporate communication shall also include the newsletters and other offers by means of which Finnest informs the Users about new or changed services and offers. The User has the possibility to refuse or, respectively, to cancel the service of such communications (by clicking on the unsubscribe link in the newsletter or, respectively, in writing by sending an e-mail to email@example.com or by sending a letter to the address indicated in the imprint).
Finnest will store and process the data carefully and only to the extent and as long as it is necessary for the purposes described or requested by the User. Finnest will take appropriate organisational and technical measures to protect the data against manipulation, loss, destruction or unauthorized processing. Finnest will only make the data known to third parties if the data subject has agreed to such disclosure, if this is done within the context of using the Platform and providing services to the User or to comply with legal or regulatory obligations or requests. The data will be stored in Austria and in Germany.
The Users may request to obtain information on which personal data is stored and processed by Finnest regarding them and for which purposes this data is stored and processed. Respective requests shall be sent to the address indicated in the imprint.
§ 9 Data processing for advertising purposes
If the Investor gives his consent upon registration, Finnest will process the registration data of the Investor for the purpose of sending him the FinnestPro e-mail newsletter about investment opportunities on the Platform. The consent regarding sending the FinnestPro e-mail newsletter can be withdrawn at any time (e.g. by sending an e-mail to firstname.lastname@example.org or, respectively, sending a letter to the address indicated in the imprint).
§ 10 Links
Finnest shall not assume any liability for the contents of web pages or URLs of other providers linked to the Platform. Furthermore, Finnest shall not be held liable for the constant availability or full functionality of links to web pages or URLs of other providers.
§ 11 Exclusion of liability
Finnest shall in no case be held liable for losses or damages of any kind (including consequential or indirect damages or loss of profits) which might occur by or in connection with accessing the Platform, visiting, using or searching its contents or in connection with the links to web pages or URLs on the Platform of other providers. This shall also apply if the possibility of such damages occurring was pointed out to Finnest.
Furthermore, Finnest shall not be held liable for technical disruptions such as server downtimes, disruption or failure of the telecommunication connections and the like which lead to a (temporary) non-availability of the Platform as a whole or individual parts thereof.
§ 12 Changes
Finnest reserves its right to change the Platform at any time (if necessary also without prior notice), i.e. in particular to change or to remove (completely or partially) existing contents or to add new contents.
Only for Austria: Please also consider the general information pursuant to sec. 5 of the E-Commerce Act (E-Commerce Gesetz) in the imprint.
§ 13 Confidentiality
The companies will disclose information for which they have an interest in maintaining its confidentiality vis-à-vis interested parties.
Users undertake to treat Confidential Information as strictly confidential and to ensure that persons different from them ("Third Parties") cannot gain knowledge of such. The term "Confidential Information" shall include all written and/or electronic data, information, materials, samples and documents which the provider discloses to Users on the Platform.
The Users undertake to disclose Confidential Information, if necessary, only to such chosen Third Parties who need to have access to Confidential Information to the extent necessary to successfully carry out the alternative financing of the company.
Information that was publicly known at the time the alternative financing of the company was carried out or information that the Users provably already had knowledge of at the time the alternative financing of the company was carried out shall not be deemed Confidential Information. The Users are entitled to pass on Confidential Information to the extent that they are obliged to do so due to a legal obligation or administrative order.
The Users will not acquire property rights or rights of use, of any kind whatsoever, in the Confidential Information.
§ 14 Choice of law and place of jurisdiction
Choice of law
These T&C shall be governed by Austrian law.
Place of jurisdiction
The Commercial Court of Vienna (Handelsgericht Wien), if legally admissible, shall be the exclusive court competent for all legal disputes arising out of and in connection with these T&C.