Borrower Terms and Conditions
1. General
1.1 In these Borrower Terms and Conditions:
1.1.1 Application means the Borrower’s application for a Loan, made by signing and submitting to Assetz Capital the Offer Terms and/or a Loan Application Form;
1.1.2 Assetz Capital is a trading name used by companies in the Assetz Capital Ltd group, including Assetz Capital Funding Ltd and Assetz SME Capital Ltd, each of which provides loan origination and servicing services. The Assetz Capital website is available at https://www.assetzcapital.co.uk/.
1.1.3 Borrower means the proposed borrower in respect of the Application, which term includes any signatory to the Offer Terms or Loan Application Form;
1.1.4 Company means whichever of Assetz Capital Funding Ltd or Assetz SME Capital Ltd processes the Application;
1.1.5 Credit Approval means approval of the proposed Loan through the relevant credit committee, authorised credit approver or other internal approval process of the Company and/or any Lender.
1.1.6 Due Diligence means all investigations, enquiries, reviews, reports and assessments required by the Company and/or Lender in relation to the proposed Loan and the security for it;
1.1.7 Interest Payment Dates means the interest payment dates specified in a Loan Agreement;
1.1.8 Interest Rate means the interest rate specified in a Loan Agreement;
1.1.9 Lender means a prospective lender in relation to a Loan and/or a lender referred to as such in a Loan Agreement;
1.1.10 Loan means a loan facility from a Lender;
1.1.11 Loan Agreement means, in respect of a Loan, a completed loan facility letter or agreement entered into between, amongst others, the Company, a Lender, a Security Trustee and the Borrower;
1.1.12 Loan Application Form means a loan application form issued by Assetz Capital;
1.1.13 Offer Terms means the offer terms issued by Assetz Capital on a strictly subject-to-contract basis;
1.1.14 Security Trustee means a security trustee referred to as such in a Loan Agreement;
1.1.15 Third-Party Fees means any fees and costs incurred or required to be incurred in connection with the proposed Loan including but not limited to valuation fees, monitoring surveyor fees, legal fees and disbursements, together with VAT thereon.
1.2 These terms and conditions set out the duties and obligations of the Borrower and the role and rights of the Company and/or Lender in connection with the Application.
1.3 The specific legal entities entering into any transaction or agreement will be identified in the relevant documentation.
2. Credit Report
2.1 The Borrower must provide all information required by the Company and/or Lender in connection with the Application.
2.2 The Company shall consider the information provided by or on behalf of the Borrower and other information in respect of the Borrower and its directors and/or shareholders which is publicly available through recognised information and research providers.
2.3 If the Company considers the proposed Loan to be creditworthy, the Company may prepare a credit report (“Credit Report”) and provide a copy of the Credit Report and/or the information referred to in clause 2.2 to one or more Lenders for the purpose of inviting funding for the proposed Loan. The Borrower authorises the Company to disclose such Credit Report and information to Lenders and professional advisors.
2.4 The Company retains all rights in the Credit Report, and the Credit Report shall not be made available to the Borrower.
3. Information, Reliance and Borrower Warranties
3.1 In relation to the Application, the Borrower warrants that:
3.1.1 it has disclosed and will continue to disclose all material information and facts relevant to the Application to the Company, whether requested or not;
3.1.2 all information provided by or on behalf of the Borrower is, to the best of the Borrower’s knowledge and belief, true, complete and accurate.
3.1.3 it is not aware of any circumstances, whether or not in the public domain, that could reasonably be considered to affect the creditworthiness of the proposed Loan;
3.1.4 it is not aware of any conflicts of interest, declared or otherwise, which impact on the Company’s ability to arrange the proposed Loan;
3.1.5 it has the necessary authority to authorise the provision of the Credit Report and the information referred to in clause 2.2 to Lenders; and
3.1.6 it holds the necessary authority to enter into a Loan Agreement and related security and ancillary documents in relation to the proposed Loan.
3.2 The Borrower acknowledges that the Company and/or Lender and their respective advisers will rely upon the Borrower warranties in clause 4.1 above when assessing and progressing the Application and deciding whether to enter into a Loan Agreement.
3.3 The Borrower shall promptly notify Assetz Capital of any material change in the information provided in relation to the Application prior to completion of the Loan Agreement.
3.4 The Borrower shall provide all further information, documentation and evidence reasonably requested by Assetz Capital, its advisers or any prospective Lender for the purposes of Due Diligence, underwriting, valuation, legal review, Credit Approval, regulatory compliance or the documentation and completion of the proposed Loan.
3.5 The Borrower acknowledges that, if any information provided by or on behalf of the Borrower in relation to the Application is false, inaccurate, incomplete or misleading:
3.5.1 the Application may be declined or withdrawn;
3.5.2 any Offer Terms may be amended or withdrawn;
3.5.3 the Company may cease progressing the Application;
3.5.4 information may be reported to fraud prevention agencies or relevant authorities;
3.5.5 the Company and/or Lender may exercise any rights or remedies available at law or under any applicable contractual documentation including to recover any loss, liability, cost or expense incurred as a consequence of that information.
4. Role and Rights of the Company
4.1 The Company acts only as a loan originator and servicer in relation to the proposed Loan. Prospective Lenders are from Assetz Capital’s marketplace of institutional funding partners.
4.2 The Company gives no guarantee that the proposed Loan (or any part thereof) will be successfully funded by a Lender, although the Company shall use its reasonable endeavours to provide feedback to any questions posed by Lenders regarding the Credit Report and Information.
5. Offer Terms
5.1 The Borrower acknowledges that:
5.1.1 the Offer Terms are indicative only and are provided following an initial assessment of information supplied to Assetz Capital;
5.1.2 the Offer Terms do not constitute a legally binding commitment by Assetz Capital, the Company or any Lender to provide the proposed Loan;
5.1.3 the Offer Terms and the proposed Loan remain strictly subject to contract, full Due Diligence, final Credit Approval by the Company and a Lender and completion of a Loan Agreement;
5.1.4 the Offer Terms may be revised or withdrawn if further information, the outcome of Due Diligence or changes in financial market conditions affect the Company’s and/or Lender’s assessment of the proposed Loan;
5.1.5 neither Assetz Capital, the Company nor any Lender is obliged to provide the proposed Loan on the Offer Terms or at all; and
5.1.6 the proposed Loan will become legally binding only when the Loan Agreement is signed by all parties, dated and completed.
6. Loan Agreement and Drawdown
6.1 During the Application, the Company may (at the cost of the Borrower):
(a) assist with the collection of any other information required to support the Application and progress the proposed Loan towards drawdown;
(b) arrange the preparation of a valuation report, a monitoring surveyor report, legal report on title and any other report required as part of the Due Diligence; and
(c) arrange the preparation of a draft Loan Agreement and related security and ancillary documents, all of which shall be subject to contract and shall not be completed unless and until the following conditions have been satisfied:
(i) the completion of full Due Diligence and receipt of valuation, monitoring surveyor, legal and/or other reports, in each case to the satisfaction of the Company and/or Lender;
(ii) the Borrower having satisfied all requirements and conditions set out in the Loan Agreement before any drawdown of the proposed Loan; and
(iii) the proposed Loan being funded by a Lender.
6.2 The Borrower shall progress the Application diligently and expeditiously, promptly execute all necessary documentation and promptly take all steps required by the Company and/or Lender to enable drawdown of the proposed Loan.
6.3 If the proposed Loan has not drawn down by the expiry date specified in the Offer Terms (or any other date notified to the Borrower by the Company), the Company may, at its discretion:
(a) withdraw the proposed Loan; or
(b) extend the expiry date on such terms, and subject to the payment of such further fees, as the Company may require.
6.4 The Company may withdraw the proposed Loan from consideration by Lenders prior to drawdown if:
(a) the Borrower breaches these terms and conditions; or
(b) the Company or a Lender becomes aware of any information which may adversely affect the creditworthiness of the proposed Loan.
7. Interest, Fees and Costs
7.1 The Borrower agrees to pay all sums payable by the Borrower in the Offer Terms and/or a Loan Agreement. Such sums will include the repayment of loan capital and interest and all fees or charges in respect of the Loan.
7.2 The Borrower is liable to pay:
7.2.1 a Commitment Fee (as specified in the Offer Terms);
7.2.2 an Arrangement Fee (as specified in the Loan Agreement);
7.2.3 all Third-Party Fees (as specified in the Offer Terms and/or Loan Agreement); and
7.2.4 any other fees or charges specified in the Offer Terms and/or Loan Agreement.
7.3 The Borrower is entitled to a refund of any Commitment Fee paid if Credit Approval is declined, unless it is declined as a direct result of information that was inaccurate, incomplete or not disclosed when the Application for the proposed Loan was submitted. The Commitment Fee will be offset against the Arrangement Fee upon first drawdown of the proposed Loan.
7.4 Third-Party Fees are payable and expended by the Borrower at its own risk. Assetz Capital, the Company or any Lender shall bear no liability to the Borrower or any other person for any Third-Party Fees. The Borrower’s liability to pay all Third-Party Fees applies at all times, both before and after any Credit Approval for the proposed Loan, and irrespective of whether it proceeds to drawdown.
7.5 In relation to invoices for Third-Party Fees, the relevant suppliers provide their goods and services to the Company and invoice the Company for the net amount plus VAT. The Company recharges the VAT-inclusive gross amount to the Borrower as Third-Party Fees. As a financial services business, the Company is unable to reclaim the VAT. The Borrower is also unable to reclaim the VAT because the relevant goods and services are not supplied to it.
7.6 Except where otherwise stated in the Offer Terms or Loan Agreement, any fees shall be payable on drawdown of the proposed Loan.
7.7 The Borrower is liable to pay interest at the Interest Rate on the Interest Payment Dates set out in the Loan Agreement. For any Loan facility under which the Borrower is not required to pay accrued interest in cash on each Interest Payment Date, the Loan facility may include an estimated interest amount. That amount will not be available for drawdown by the Borrower. It will instead be applied in payment of accrued interest on each Interest Payment Date, and each amount so applied will be capitalised to the Loan on that date. Once the estimated interest amount has been fully utilised, the Borrower must pay accrued interest in cash to the Lender on each subsequent Interest Payment Date.
7.8 The Borrower acknowledges that the Company shall receive a servicing fee (which may be included in the Interest Rate) in respect of its ongoing servicing and monitoring of the proposed Loan. The amount of such servicing fee shall be made available to the Borrower upon request.
7.9 The Borrower shall not withhold, delay, set off or contra any payment due under these terms and conditions.
8. Broker Fees
8.1 The Company and/or Lender may pay some of the Arrangement Fee for the proposed Loan as a commission or fee to a loan introducer or broker and will disclose the amount paid in the Offer Terms and/or Loan Agreement.
8.2 The Borrower confirms that the broker or introducer has explained to it, and that it understands and acknowledges, that the Company and/or Lender will pay a commission or fee to the broker or introducer. The Borrower further confirms that it understands the basis on which that commission or fee is calculated, that it will be paid out of the proposed Loan by deduction from the debt-funded Arrangement Fee, and that the Borrower consents to that payment.
8.3 A loan introducer or broker may, under a separate agreement with the Borrower to which neither the Company nor any Lender is a party, charge a separate fee to the Borrower.
9. Privacy and Data Protection
9.1 The Borrower confirms that it has read and understood Assetz Capital’s privacy notice and the information provided regarding the collection, processing and sharing of personal data in connection with the Application for proposed Loan.
10. Disclosure of Information
10.1 The Borrower acknowledges and agrees that Assetz Capital, the Company, advisers and Lenders may disclose information relating to the Application, the Borrower and the proposed Loan where required or permitted by any applicable law, regulation, court order, regulatory authority or professional obligation.
11. Credit, Identity and Fraud Prevention Checks
11.1 The Borrower authorises Assetz Capital, the Company, advisers and Lenders to undertake such enquiries, searches, checks and investigations as they consider appropriate in connection with the Application, including:
11.1.1 credit reference checks;
11.1.2 identity verification;
11.1.3 anti-money laundering and sanctions screening;
11.1.4 fraud prevention checks; and
11.1.5 verification of information supplied by or on behalf of the Borrower.
11.2 The Borrower acknowledges that information relating to the Borrower and any relevant individuals may be shared with credit reference agencies, fraud prevention agencies and other third parties for these purposes and that records of searches may be retained.
12. Publicity
12.1 The Borrower and the Company shall agree the terms of any public announcement or press release concerning the terms of the proposed Loan. The Borrower shall not make any public announcement or press release concerning the Company, a Lender or the terms of the proposed Loan without the prior consent of the Company. The Borrower confirms that it will not unreasonably withhold its consent to the Company publicising (by any means) its role in the funding of the proposed Loan.
13. Disclaimers
13.1 Neither the Company nor a Lender has any liability to the Borrower if the proposed Loan (or any part of it) is not fully funded by a Lender.
13.2 The Company does not give lending or other advice, and the Borrower is responsible for arranging independent legal and financial advice prior to entering into a Loan Agreement, related security and/or ancillary document with the Company, a Security Trustee or a Lender.
14. Assignment and Participation
14.1 The Company and/or Lender (and any of their affiliates and associates) will be entitled to:
14.1.1 freely and separately assign any of their rights and/or transfer, novate or otherwise dispose of any of their rights, benefits or obligations under the Loan Agreement and any related security and/or ancillary document to any other person in any manner that they see fit.
14.1.2 enter into any sub-participation, trust or other contractual arrangement or disposal, or any other transaction under which payments are to be made by reference to the Loan Agreement, any related security and/or ancillary document or the Borrower, with any person or entity in relation to any rights or obligations under those documents, in any manner that they see fit, and provide information concerning the Borrower to that person or entity for that purpose.
15. Law and Jurisdiction
15.1 These terms and conditions shall be governed by and construed in accordance with English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
16. Notices
16.1 Except where the Company relies on a telephone communication as provided below, any communication made in connection with the Application shall be made in writing by letter or email.
16.2 Communications to the Company should be sent to Assetz Capital at Assetz House, Manchester Green, 335 Styal Road, Manchester, M22 5LW or by email to the New Business Team at [email protected].
16.3 A communication to the Company will be effective only when received in complete form by email or, if sent by letter, when delivered.
16.4 Communications to the Borrower shall be sent to the postal or email address notified by the Borrower, its principals or its broker.
16.5 The Company may, without further enquiry of the Borrower as to authority or identity, rely on any communication made by telephone, letter or email that purports to have been made on the Borrower’s behalf by a person notified to the Company as authorised to do so.