Additional Terms & Conditions

Lien Services Terms and Conditions

1. Lien Services.

   i. Definitions. “Lien” means a UCC financing statement that attaches to certain assets of a Borrower of Customer that is submitted to be filed by Baselayer or an affiliate thereof for the ratable benefit of Customer (including but not limited to a Masked Lien), in each case whether first filed prior to, on, or after the Agreement Effective Date. “Masked Lien” means a Lien on which Baselayer or an affiliate thereof appears as the secured party for the ratable benefit of Customer.

   ii. Lien Product. To the extent provided under the Agreement and the applicable Order, the Services may include Baselayer’s UCC Lien Filing and Lien Masking product (together, the “Lien Product”). If permitted by the applicable Order and in accordance with the terms of the Agreement, Customer may, from time to time, order the filing, amendment, release or termination of a Lien through the Lien Product. Except as otherwise expressly set forth in these terms, the Lien Product is a Service Module and constitutes part of the Services for all purposes under the Agreement, and Customer hereby appoints Baselayer, and Baselayer hereby accepts appointment, as Customer’s secured party of record under UCC § 9-511, solely for the purpose of Customer preparing, signing, filing, and administering UCC financing statements (Forms UCC-1) and related records (Forms UCC-3) in Baselayer’s name as representative of Customer (under §§ 9-502(a)(2) and 9-503(d) of the UCC), with respect to the Borrower and the Secured Assets in accordance with the terms and provisions of this Section 1(ii). Baselayer holds record title as secured party of record solely in a bare representative and administrative capacity for the ratable benefit of Customer, and neither Baselayer nor any affiliate thereof has, asserts, or acquires any beneficial or economic interest in any Lien, any Secured Assets, or the underlying Loan Documents, all of which remain the property of Customer.

   iii. Baselayer Responsibilities. Upon receiving Customer’s request made by Customer through Baselayer’s platform or API to file a Lien through the Lien Product, or otherwise upon receiving written notice by Customer to amend, release or terminate a Lien through the Lien Product, and subject to the terms and conditions of the Agreement and those contained herein, Baselayer shall use its commercially reasonable efforts to cause such Lien to be submitted to be filed, amended, released or terminated in accordance with Customer’s written specifications by the later of (i) two full business days after Baselayer’s receipt of such request and (ii) a later date as notified by Baselayer to Customer in writing; provided that if such Lien is not submitted to be filed, amended, released or terminated, as applicable, within the period specified in the foregoing clause (i), then Baselayer shall use its commercially reasonable efforts to deliver written notice of such delay prior to or promptly following the expiration of such period. Customer acknowledges that written confirmations of filings, amendments, releases or terminations of Liens are automatically generated and delivered to Customer through Baselayer’s platform, email or webhook.

   Customer agrees and acknowledges that neither Baselayer nor any affiliate thereof shall have any liability or make any warranties in respect of the priority of any Lien or any changes thereto due to the time that such Lien was actually processed and filed. Customer further agrees and acknowledges that neither Baselayer nor any affiliate: (w) has provided or will provide any legal, tax, regulatory, accounting, financial, investment, securities law, or insurance advice, counsel, or opinion regarding the Loan Documents, the Secured Assets, the related security interests or filings with respect thereto, or regarding the creation, attachment, perfection, priority, sufficiency, or enforceability of any security interest, or the structuring, funding, or ongoing administration of any transaction to which such filings relate, including, without limitation, the selection of filing office or jurisdiction, the sufficiency of any debtor name or collateral description, doing-business or other licensing matters, and the initial and ongoing selection and monitoring of the underlying financing arrangements; (x) has made or will make any investigation as to the existence, validity, perfection, priority, or enforceability of any security interest, or as to the accuracy or completeness of any instruction, information, representation, or warranty provided by Customer or the Borrower (including debtor names, collateral descriptions, and jurisdiction of organization), and shall have no liability in connection therewith; (y) is responsible for filing any extension, amendment, continuation, or renewal of any financing statement or other lien filing, or for following up with the Secretary of State’s office or any other governmental entity responsible for receiving, recording, or processing any such filing, including, without limitation, the monitoring of filing deadlines and lapse dates, the preparation, submission, or recordation of any amendment, restatement, continuation, or termination statement, the response to any rejection, deficiency notice, or other communication from any filing office, the maintenance of any filing office account or good standing, and the verification of the accuracy, sufficiency, or enforceability of any filed record; and (z) has prepared or verified, and shall not be responsible or liable for, the substantive content of any filing or other record beyond the accurate and timely transcription and filing of the information Customer provides, or for any information, disclosure, or statement in any loan, security, disclosure, or other document issued or delivered in connection with the loans, the collateral, or any sale or transfer of the loans or the related receivables or collateral.

   Without any liability of Baselayer or its affiliates to Customer, Baselayer and its affiliates are entitled and authorized to take any action relating to any Lien (including, without limitation, the release or termination thereof) that is reasonably determined by Baselayer to be required to comply with an order of a court or other governmental agency or applicable law.

   iv. Customer Representations and Warranties and Acknowledgements. In respect of each Lien, as of the date on which Customer orders such Lien through Baselayer under the applicable Order, and for so long thereafter until such Lien is fully and finally released, Customer represents and warrants to Baselayer that: (i) pursuant to the terms of the security agreement and all other related loan documents between or among Customer, the borrower of Customer (“Borrower”) and any other parties thereto (collectively, the “Loan Documents”), Borrower has pledged and granted to Customer a valid and enforceable continuing security interest in all of the assets to which the Lien attaches (the “Secured Assets”), as instructed by Customer to Baselayer in writing; (ii) such Borrower authorizes Baselayer and Baselayer’s affiliates, in a capacity as administrative agent or collateral agent for the benefit of Customer, to file, amend, release or terminate UCC financing statements attached to the Secured Assets and, where such Lien is a Masked Lien, authorizes Baselayer and Baselayer’s affiliates to appear as a secured party thereon, in each case without further notice to such Borrower, and such authorization has not been revoked or modified in any respect; (iii) under such Loan Documents, such Borrower represents and warrants to Customer that such Borrower has good title to, rights in, and the power to transfer the Secured Assets and, to Customer’s knowledge, such Borrower is not in breach of any such representation or warranty; (iv) each such Loan Document is in full force and effect, and no event or circumstance has occurred that, with the giving of time or notice or both, would result in any breach of any Loan Document by Customer or, to the knowledge of Customer, such Borrower or any other party thereto; and (v) Baselayer and its affiliates are authorized to rely on, take all actions and adhere to all instructions and directions that are directed by Customer to Baselayer in respect of such Lien, including without limitation the priority of such Lien and the description of the Secured Assets, and Customer’s instructions and directions to Baselayer in respect of such Lien are made in accordance with the terms of the Loan Documents.

   Customer acknowledges and agrees that neither Baselayer nor any affiliate has any fiduciary relationship with or duty to Customer arising out of or in connection with the Agreement or any other agreement, certificate or other document, and no joint venture is created hereby or by any other agreement certificate or document or otherwise exists by virtue of the undertakings contemplated hereby. Customer further acknowledges and agrees that the Services involving the Lien Product screen routine database searches only but are not a shield against legal process or diligent inquiry, and the public record itself may invite further inquiry. Customer further acknowledges and agrees that neither Baselayer nor any affiliate confirms, verifies, or makes any representation or warranty as to the accuracy or completeness of the debtor name, secured party name, collateral description, filing jurisdiction, filing office, or any other information contained in or relevant to any UCC filing.

   v. Obligations of Customer. In respect of each Lien, for so long until such Lien is fully and finally released or terminated, Customer shall notify Baselayer in writing as soon as practicable upon becoming aware of, or reasonably suspecting, that any of the representations or warranties set forth in Section 1(iv) are inaccurate or untrue in any respect. Baselayer is entitled, by delivering written notice to Customer and without any liability to Customer, to immediately suspend, terminate or limit Customer’s access to the Lien Product if Baselayer reasonably suspects that Baselayer or its affiliates are not authorized by any Borrower, the applicable Loan Documents or applicable law to file, amend, release, terminate or take any action with respect to any Liens or otherwise if Baselayer reasonably suspects that Customer is in breach of its representations, warranties or covenants set forth in these terms. Without limiting the foregoing, neither Baselayer nor any affiliate thereof will be obligated under these terms, the Agreement or the applicable Order to take any action in respect of any Lien if any Fees or other amounts payable by Customer to Baselayer under the Agreement are past-due.

   If third parties (including searchers, other creditors, and the Borrower) contact Baselayer as secured party of record, including by serving a request for an accounting or a list of collateral under UCC § 9-210 (which carries statutory response deadlines), then Baselayer shall forward any such inquiry or demand to Customer within five (5) business days, and the Parties shall coordinate any response so that all statutory deadlines are met. Any such correspondences shall be sent to the email address identified in the UCC submission. In the event this email address changes, Customer agrees to notify Baselayer within seven (7) business days.

   vi. Limits on Liability; Indemnification; Costs and Expenses. Baselayer and its affiliates shall be entitled to rely on any instruction or direction delivered by Customer to Baselayer relating to the Liens and Customer’s use of the Lien Product (including, without limitation, descriptions of the priority of a Lien or the Secured Assets to which a Lien attaches), and neither Baselayer nor any affiliate thereof will incur any liability to anyone for damages, losses or expenses arising out of Baselayer’s or its affiliates’ acts or omissions taken in reliance on any such instructions or directions. Neither Baselayer nor any affiliate thereof will have any liability to Customer or any third party arising out of or relating to any search, query, or report conducted or generated by Customer or on Customer’s behalf through Baselayer’s platform or portal, including without limitation any UCC lien search, tax lien search, or similar search product, it being understood that such searches reflect only the results returned by the applicable government or database source queried and are provided on an “as-is” basis without any warranty as to accuracy or completeness. Neither Baselayer nor any affiliate thereof will have any liability for any inaccuracy, error, or omission in the debtor name, secured party name, collateral description, filing jurisdiction, filing office, or any other information contained in or relevant to any UCC filing, to the extent such inaccuracy, error, or omission resulted from information, instructions, or data supplied by or on behalf of Customer or the Borrower. Customer will defend Baselayer and its affiliates from and against any third-party claims to the extent resulting from or arising out of Customer’s breach of its representations and warranties set forth in Section 1(iv) or otherwise arising out of the Liens and any action taken by Baselayer or its affiliates in connection therewith, and Customer will hold harmless Baselayer and its affiliates against any damages and costs awarded against Baselayer or such affiliates (including reasonable attorneys’ fees) or agreed in a settlement by Customer resulting from such claim; provided that Customer’s indemnification obligations under this Section 1(vi) shall not apply to the extent that any such claim resulted from the gross negligence or willful misconduct of Baselayer or its affiliates.

   In addition to the foregoing, Customer agrees to pay any and all reasonable and documented out-of-pocket expenses (including all reasonable and documented fees and disbursements of counsel) that may be paid or incurred by Baselayer, and to hold Baselayer harmless from, any and all liabilities with respect to, or resulting from any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of the terms of the Agreement and the undertaking of the Services (including the Lien Product), including but not limited to any such amounts arising from a delay in paying, any and all stamp, excise, sales or other taxes that may be payable or determined to be payable in connection with any of the undertakings contemplated by the Agreement.

   vii. Customer Continuity; Insolvency. Upon any dissolution, cessation of business, insolvency, or bankruptcy of Customer, the appointment of a receiver, trustee, custodian, or assignee for the benefit of Customer’s creditors, or Customer’s failure to act on or respond to a matter within the times specified in this Agreement (each, a “Customer Continuity Event”), the following shall apply: (a) Baselayer may suspend performance of any discretionary Services until Baselayer receives instructions from a person Baselayer reasonably determines is authorized to act for Customer; (b) Baselayer may resign as representative and as secured party of record on [30] days’ written notice to Customer (or its successor, trustee, or receiver) or such shorter period as permitted by applicable law or court order and undertake a Lien Transition in accordance with clause (viii) immediately below; (c) Baselayer may seek, and is authorized to act upon, the written instructions of a duly appointed trustee, receiver, custodian, assignee for the benefit of creditors, or successor-in-interest of Customer, upon Baselayer’s receipt of evidence of that person’s authority reasonably satisfactory to Baselayer; (d) may, but is not obligated to, file protective continuation statements to preserve filings pending receipt of instructions, and shall be reimbursed and indemnified for doing so; (e) may disclose Customer’s identity as the actual secured party to a trustee, receiver, custodian, assignee, or successor-in-interest of Customer, to searchers, other creditors, the Borrower, and any person submitting a request for an accounting or a list of collateral under UCC § 9-210, and as otherwise required by law or legal process, and shall disclose such identity to the extent required by applicable law, legal process, or court order. If Baselayer is faced with competing or conflicting claims of authority, Baselayer may withhold action, or interplead or seek instructions from a court of competent jurisdiction, without liability.

   viii. Termination. Customer agrees and acknowledges that, following the expiration or termination of the Agreement, a Customer Continuity Event or the default, enforcement, sale or transfer of the Loan or any Secured Assets (any such occurrence, a “Termination Event”), Baselayer shall be entitled to file, or cooperate in filing, a UCC-3 assignment or amendment substituting Customer or its designee (or any trustee, receiver, assignee, or successor-in-interest in the case of a Customer Continuity Event) as secured party of record without further direction of or consent by Customer; provided, further, that if such filing occurs following a Customer Continuity Event arising from Customer’s bankruptcy, insolvency, or the appointment of a trustee, receiver, custodian, or assignee for the benefit of creditors, Baselayer shall undertake such filing only upon the written instruction of a duly authorized trustee, receiver, custodian, assignee, debtor-in-possession, or successor-in-interest of Customer, or pursuant to an order of a court of competent jurisdiction (including, to the extent applicable, an order granting relief from the automatic stay); provided, that, Baselayer shall provide five (5) days’ prior written notice to Customer (or such shorter period as required or permitted by applicable law or court order) prior to undertaking any such undertakings or actions (any such undertaking or action, a “Lien Transition”).

   ix. Survival. Notwithstanding the foregoing, nothing in this Section 1(vii) shall limit any other rights of Baselayer to take any action in respect of Liens as set forth in this Section 1 or the Agreement. All provisions of this Section 1 that by their nature should survive the expiration or termination of the Agreement will survive such expiration or termination, including, without limitation, Section 1(iv), Section 1(vi), Section 1(vii), Section 1(viii) and Section 1(ix), Customer’s acknowledgements and Baselayer’s rights in Section 1(iii) and Customer’s obligations in Section 1(v).

   x. Right to Subcontract. The Parties hereto hereby agree that Baselayer may perform any of its obligations, and may exercise any of its rights, under the Agreement (including, without limitation, the Services and the Lien Product) directly or through one or more subcontractors, affiliates, or other third-party service providers (each, a “Subcontractor”), without obtaining Customer’s prior consent. Baselayer shall remain responsible to Customer for the performance of its obligations under the Agreement notwithstanding any such delegation or subcontracting, and shall be responsible for ensuring that any Subcontractor performing Services on Baselayer’s behalf is bound by written obligations of confidentiality and data protection that are no less protective of Customer’s confidential information than those set forth in the Agreement. Nothing in this Section 1(x) shall be construed to create any contractual relationship between Customer and any Subcontractor.

2. Power of Attorney; Appointment of Attorney-in-Fact. Customer hereby appoints, which appointment is irrevocable and coupled with an interest, effective upon the occurrence of a Termination Event and which appointment shall automatically terminate upon the effectuation of a Lien Transition, Baselayer and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of the Customer and in the name of such Customer or otherwise, without further consent of any party, for the purpose of taking any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of the Lien Transition. Anything in this Section 2 to the contrary notwithstanding, Baselayer agrees that it will not exercise any rights under the power of attorney provided for in this Section 2 unless a Termination Event shall have occurred. All provisions of this Section 2 will survive the expiration or termination of the Agreement.