1. Role of the Assetz Capital Companies
The Assetz Capital Companies will perform an administrative role in relation to the Network to bring together prospective borrowers and lenders through the operation of the Website.
In relation to each Loan as specified on the Website, Assetz SME Capital (the Assetz Agent):
– will act as the agent of the Lending Members in making funding available to Borrowers;
– may arrange for Loans to be underwritten and co-ordinate the drawdown process, including the creation of the legal documentation relating to the Loans;
– will administer the collection of funds from Lending Members and the payment of loan monies to Borrowers;
– will monitor the payment by Borrowers of interest and capital to Assetz SME Capital for onward payment to Lending Members, net of any interest, fees or other charges payable to Assetz SME Capital under these Terms and any agreement with a Borrower.
In relation to each Loan as specified on the Website, the Trustee will, through the Assetz Agent, take and hold security for the Loan on behalf of Lending Syndicate members, and take enforcement action in relation to that security should it be required.
Assetz Provision Funding will hold funds deposited with it for the purposes of fulfilling Assetz Capital’s Provision Fund policy as set out on the website.
2. Applying for Lending Membership
- You may only become a Lending Member if you have a UK bank account and (a) you are an individual over 18 years of age (note: if you are not resident in the UK you should consult HM Revenue & Customs regarding taxation on any income or gains made in the UK or alternatively make an enquiry with Assetz SME Capital and we may have HMRC information to share with you to speed up this process); or (b) you are a limited liability company registered in the UK; or (c) you are limited liability partnership registered in the UK; or (d) you are a public body registered or formed with the relevant authority in the UK; or (e) you are any other legal entity duly registered with an appropriate authority in the jurisdiction in which you are located.
- Under normal circumstances there is no membership or joining fee payable for being a Lending Member. The Assetz Capital Companies reserve the right to introduce a membership or joining fee in the future and did so for a period starting on 1st May 2020. That was a temporary measure under the “Non-Normal Market Conditions” brought about by the Coronavirus (COVID-19).
- The Assetz Capital Companies retain the right to refuse Lending Membership without giving a reason.
- Before admitting an applicant to Lending Membership, the Assetz Capital Companies will carry out identity and fraud checks using a suitable credit reference agency. The Assetz Capital Companies retain entire discretion as to whether an application for Lending Membership is permitted or not. You may be requested to submit additional information or documents in support of your application.
- In the registration process you will be asked to supply a username and password. Your unique username and password will be used in order to access parts of the Website. Bidding will be conducted through your Username in order to keep your identity confidential. Borrowers and other Lending Members will be able to review statistics about your bidding history and Loans that you have made or acquired through the Website.
- The Assetz Capital Companies use Two-Factor Authentication (2FA) as a security process to help to protect Lending Members’ funds and data. A Lending Member can opt-in to use 2FA on first registration (or at any time thereafter) and must opt-in after transferring funds to the Account Bank if not already opted in. Use of 2FA is mandatory when a Lending Member wants to permit certain functions or transactions on the Website in respect of which a prompt appears for the Lending Member to insert a 2FA code sent by us to the mobile telephone number or email ID provided by the Lending Member. Alternatively, a 2FA phone, tablet or computer application may be utilised by the Lending Member. Lending Members can opt-out of 2FA for Website log-in purposes only.
- Lending Membership is not transferable.
- You may register more than one account if you have good reasons to do so and in particular may register personally a SIPP, a trust, a UK or overseas company for example provided that entity passes the appropriate checks for that application.
3. Pension Funds, Trusts and IFISAs
- If you are a trust, you must inform the Assetz Capital Companies of that so the account can be labelled as a “TRUST.
- If you are a pension fund, you must inform the Assetz Capital Companies of that so the account can be labelled as a “SIPP” or “SSAS” or “Pension Scheme”.
- In the case of a Lending Member which is a trust or pension fund, the Lending Member will be the legal entity constituting the relevant trust or pension fund and not the beneficiaries of that trust or pension fund. Accordingly, payments on account of interest and capital which are payable to the trust or pension fund cannot be paid directly to the beneficiaries and must be paid to the bank account of the relevant trust or pension fund.
- The Assetz Capital Companies acknowledge that pension funds are usually subject to restrictions on the entities to which they can lend and, in particular, are prohibited from lending to their associated employer business. Whilst the Assetz Capital Companies will endeavour to identify and draw the attention of Lending Members to enough relevant facts or data on lending opportunities which could infringe such restrictions, we accept no liability or responsibility in this regard.
- Lending Members may choose to open an IFISA account in addition to their Standard Account. There is an application process for IFISAs on the website and separate terms and conditions governing the IFISA which you will be asked to review and agree to during that application process. The operation of an IFISA account is broadly similar to the operation of a Standard Account and the remaining Terms and Conditions below will apply to general account operation.
4. Account Operation
- When your application has been approved, Assetz SME Capital will open a client account for you. Any funds that you transfer to the client account will be held by Assetz SME Capital entirely separate from the assets and funds of the Assetz Capital Companies.
- Each client account will be held by Assetz SME Capital within a pooled client money account operated under CASS rules and held with the Account Bank.
- Each client account is clearly identifiable as it contains the word “client” within the title to differentiate it from other account types, the Account Bank has no right to set off against client accounts as they are held under Trust on behalf of clients.
- In the unlikely event of us entering into administration, the funds in the client accounts held as Client Money will be protected by the CASS rules, so you will be entitled to share in any distribution under the Client Money distribution rules.
- Where your money is held by the Account Bank, we will use reasonable skill and care in selecting, using and monitoring with whom we deposit Client Money but are not liable for their acts or omissions, insolvency or dissolution; and we cannot ensure that you would not lose any money if the Account Bank enters administration, liquidation or a similar procedure. If the Account Bank is unable to repay all of its creditors, your Client Money would be pooled with that of our other clients with that entity and any shortfall would be borne by all the clients of that pool proportionately. The likelihood of any shortfall may be affected by whose rights have priority upon insolvency.
5. Lending Opportunities
- Each Loan is divided into Micro Loans as specified on the Website. Lending Members may acquire Micro Loans by:
- using a Loan Selection Facility, see paragraphs 6 and 9;
- participating in an Auction, see paragraph 7;
- taking a transfer of existing Micro Loans, see paragraph 8.
- Assetz Capital Companies may seek the assistance of an Underwriter or Underwriters to pre-fund a Loan prior to it being made available on the Website as Micro Loans. The terms and conditions relating to any underwriting will be determined by and documented separately by the Assetz Capital Companies to those Underwriters and are supplemental to these Terms.
- Information regarding currently available Micro Loan investment opportunities and Loan Selection Facilities to permit that investment will be available on the Website to Lending Members. We may also notify Lending Members by email when new lending opportunities become available, provided you have not opted out of such communications. However, we accept no responsibility if Lending Members do not receive such notification.
- Lending opportunities will normally be supported by way of a credit report prepared by an Assetz Capital Company describing the opportunity and providing background information which may refer to business plans, information on security, past accounts and other documents relevant to the opportunity.
- Some lending opportunities will be supported by valuation, legal or other professional reports addressed to or procured by an Assetz Capital Company or the Trustee and posted on the Website. Lending Members will be bound by the terms and conditions of the report provider(s), including any provisions relating to the limitation of liability or confidentiality, whether or not the terms and conditions are attached to the relevant report or otherwise posted on the Website.
- You will be able to ask specific questions or request further information about particular opportunities by posting them on the Website. Normally any such communication will be available to all Lending Members to view. We reserve the right to remove posts which we consider are inappropriate for public viewing or for any other reason.
6. Loan Selection Facilities
- The Assetz Capital Companies may make available to Lending Members a range of Loan investment opportunities labelled with Borrower information (which may from time to time be redacted), security offered for the Loan, interest rate of the Loan, the loan-to-value of the Loan, Risk Category of the Loan and other data. Various automatic Loan Selection Facilities will either be available on the Website or individually configured by the Lending Member. An example of this might be a pre-configured “Investment Account”, and “Access Account” or a lender self-configured selector of Loans that fit a certain selection criteria. A Lending Member who wants to make an offer to lend money to a Borrower in this way may choose the Loan Selection Facility most appropriate to his circumstances. These facilities are provided without obligation or liability on the part of the Assetz Capital Companies.
- The Assetz Capital Companies offer Provision Fund arrangements on some of its Investment Accounts and Access Accounts. Details of how these Provision Funds work and our Provision Fund Policy can be found on the relevant pages of the website.
- Lending Members using a Loan Selection Facility must satisfy themselves that it is appropriate to their circumstances. The Assetz Capital Companies do not provide advice as to the suitability of any Loan Selection Facility, but we will publish how those Loan Selection Facilities work. If you are in any doubt as to the suitability of a Loan Selection Facility for your circumstances, we strongly recommend that you seek independent financial advice.
- The details of the Loan Selection Facilities currently available to Lending Members are set out on the Website. These facilities can be utilised by a Lending Member using the Website. For the period of utilisation of an Investment Account or an Access Account, or a Lending Member self-configured Loan Selection Facility, and for clarity, before withdrawal of those investments have completed, there will be a continuing instruction to the Assetz Capital Companies to acquire in the name of the relevant Lending Member an appropriate number and value of Micro Loans in Loans that, under the current published investment criteria of the Investment Accounts or Access Accounts, or the criteria that have been self-selected by the Lending Member if appropriate. Whilst the Assetz Capital Companies will endeavour to ensure that the Micro Loans acquired by the Lending Member correspond with the selection criteria, the Lending Member will remain solely responsible for the selection of Micro Loans and the Assetz Capital Companies will have no responsibility for the individual Micro Loans which are acquired or their subsequent performance, except as required by law or regulation.
- Loan Selection Facilities can sometimes be utilised to acquire Micro Loans at the time of the origination of the relevant Loan or can be used to take a transfer of Micro Loans which are already held by a Lending Syndicate Member and which have been made available for transfer in accordance with paragraph 8 and 9 below.
- The Assetz Capital Companies’ software will endeavour to automatically allocate available Micro Loans which meet the relevant selection criteria to a Lending Member who has chosen a Loan Selection Facility in order to reduce the uninvested cash balance of the Lending Member’s client account as quickly as possible. However, in doing so it will have regard to (a) the need to balance the speed with which funds are invested and the level of diversification of a Lending Member’s loans and (b) the objective of achieving fairness between Lending Members who wish to make similar loans at the same time. Details of the current policies on diversification and allocation processes may be published on the Website but the Assetz Capital Companies may amend these from time to time and can do so without notice if it is considered in the interests of Lending Members as a whole to do so.
- The availability of a Loan Selection Facility does not guarantee the availability of Micro Loans which meet the selection criteria. This may mean that money remains in a Lending Member’s client account without being invested. Lending Members are responsible for monitoring the speed at which Micro Loans are acquired and the Assetz Capital Companies will not be liable for any loss of interest arising due to the lack of Micro Loans meeting the selection criteria. Facilities are provided on the Website for Lending Members to choose to automatically invest uninvested cash held within a Loan Selection Facility in an Access Account instead (via a sweep function) until such time as Micro Loans are available.
- The Assetz Capital Companies can remove, suspend or alter the terms of any Loan Selection Facility at any time although this will not affect Micro Loans already acquired under that facility.
7. The Auction Process
- Some loans may be made available on the Website using an auction process. Where a loan is made available in this way a Lending Member who wants to make an offer to lend money to a Borrower may do so by way of a Bid entered on the Website.
- A Bid must specify the capital amount that you are prepared to lend and some Bids may also require the fees that you wish to charge.
- The minimum Bid, if any, is specified in the Auction particulars.
- A Bid will normally only be accepted if you have sufficient cleared monies in your client account to fund that Bid.
- You may not withdraw a Bid once it has been entered on the Website. If your Bid is successful you are obliged to make the relevant investment in the Micro Loan.
- Once you have entered a Bid you cannot withdraw it. At that point the monies required to fund the Bid will be held frozen in your client account until being released in accordance with paragraphs 7.14 and 7.15 below.
- The Auction Closing Date specified on the Website is indicative only. The Assetz Capital Companies may decide to extend or shorten the period of the Auction to allow time for further bidding if required, or to acknowledge that a Loan is fully funded as appropriate.
- If two Lending Members enter identical Bids, the Lending Member who bid first will have its Bid ranked prior to the later Bid.
- When sufficient Bids have been entered to fund a Loan in full, the Auction will then close.
- A Bid may be successful in part, if only part of the Bid is required to fund the relevant Loan in full.
- If sufficient Bids are entered by the Auction Closing Date to fund the required Loan, the successful Bids will form a Lending Syndicate to advance the Loan to the Borrower.
- In certain cases the Assetz Capital Companies may seek the assistance of an Underwriter to pre-underwrite some or all of an Auction or underwrite any shortfall of Bids in order that a particular Auction can be closed. The terms and conditions relating to any underwriting will be determined by and documented separately by the Assetz Capital Companies and are supplemental to these Terms. An Auction which has an underwriting arrangement in place may remain open for Bids, notwithstanding that the relevant Loan is fully funded. In those circumstances further Bids may be accepted in order to reduce the amount of the Underwriter’s commitment. For the avoidance of doubt, Bids received after the Loan is fully funded may reduce the Underwriter’s commitment or may also reduce or replace Bids of any other Lending Member.
- On the Auction Closing Date:
- any monies required to fund a successful Bid will continue to be held frozen in the client account of each successful Lending Member; and
- any frozen monies held in the client accounts in respect of unsuccessful Bids will be unfrozen and released to the order of the relevant Lending Members. Released monies will only be returned to the bank account from which the original monies were transferred into your client account.
- On and after the Auction Closing Date, any monies required to fund successful Bids will continue to be held frozen by Assetz SME Capital in the relevant client account until the Assetz Agent confirms that either:
- the formalities of drawdown of the Loan by the Borrower have been completed, in which case the monies will be advanced to the Borrower; or
- the formalities of drawdown of the Loan by the Borrower have not been completed to the satisfaction of the Assetz Capital Company, in which case the Loan will not be advanced and any frozen monies held in the Lending Syndicate Members’ client accounts will be unfrozen and released to the order of the relevant Lending Syndicate Members.
- The Assetz Capital Companies reserve the right to withdraw Auctions from the Website at any time and for any reason.
8. Transfer of Micro Loans
- A Lending Syndicate Member who wishes to transfer its interest in a Loan in whole or in part (a ˝Transferor˝) may do so by way of repayment and redrawing to another Lending Member (a ˝Transferee˝) through the Website. This is not possible for any individual Micro Loans that have been invested in automatically via the investment mandates of any Investment Accounts or Access Accounts, as those are managed on a whole portfolio basis, but is possible after any automated or assisted purchase within the Manual Lending Account. The partial or whole Transfer of Access Account aggregate holdings under the Access Accounts Marketplace is described in paragraph 9.
- Subject to clause 1 above, if a Lending Syndicate Member wishes to transfer one or more Micro Loans, such transfer will be effected, subject to these Terms, by way of repayment and redrawing notwithstanding that the relevant Loan may be subject to a Credit Event or at risk of a Credit Event. Whilst the Assetz Agent will attempt to draw the attention of potential Transferees to the existence of such a Credit Event situation, and may block such transfer in some cases and at some times, it accepts no responsibility or liability for the transaction taking place beyond posting notice of a Credit Event situation on the Website prior to any transfer being committed to by the Transferee.
- Micro Loans can only be transferred at their par value or at a discount to their par value (should this feature be currently enabled on the Website). It is not permitted for a Transferor to apply a premium to the outstanding principal value of each Micro Loan being transferred.
- On the effective date of the transfer, the Borrower and the Transferor shall be released from further obligations towards one another under the relevant Loan Agreement (the “Discharged Obligations”) and shall be treated as if the Loan represented by the relevant Micro Loans had been repaid by the Borrower in full at that time, save that the Transferor shall remain entitled to receive any unpaid or deferred interest accrued up to and including the date of the transfer after it is paid, if at all, by the Borrower. Other than that, at the same time the Borrower and the Transferee shall be treated as if the Loan represented by the relevant Micro Loans had been advanced by the Transferee to the Borrower. At that point the Borrower and the Transferee shall assume the Discharged Obligations towards one another as if the Transferee had been the original Lending Syndicate Member in respect of the relevant Micro Loans, including the right to collect unpaid interest accruing from the day after the date of transfer and any capital also outstanding at the time of the transfer.
- On the effective date of the transfer, the agreed purchase price of the transferred Micro Loans will be paid from the client account of the Transferee to the client account of the Transferor after the deduction of any transfer administration fee that may be charged in relation to the transfer by Assetz Capital Companies.
- The Borrower confirms its agreement to these arrangements and waives any requirement for it to be a party to the transfer agreement. In all other respects the relevant Loan Agreement shall remain unaltered and shall continue in full force and effect.
- If the risk profile of a loan deteriorates we may notify Lending Syndicate Members of a potential discount to capital value which may be needed in order to reflect the fair price of the Loan. We do not accept any responsibility or liability to Lending Syndicate Members for any loss they may incur as a result of holding, buying or selling Micro Loans after they are notified of any potential or actual capital value discount on a loan.
9. Access Account Marketplace
- The Access Accounts are specific Loan Selection Facilities, as described in paragraph 6, which operate as set out on the Website. The remainder of this paragraph applies only to the Access Accounts and not to any other Loan Selection Facility or group of Micro Loan holdings of a Lending Syndicate Member.
- A Lending Syndicate Member who has invested in a diversified portfolio of Micro Loans via the Access Accounts may choose to transfer its interest in a proportion or all of its aggregate holding in the Access Accounts (the “Transferor”) by way of repayment and redrawing to another Lending Member (the “Transferee”) using the Access Account Marketplace. The details of how the Access Account Marketplace operates is set out on the Website.
- For the avoidance of doubt, a Lending Syndicate Member will not have the ability to select which Micro Loans held via the Access Accounts are transferred. Micro Loans transferred by a Lending Syndicate Member from their Access Accounts investment will be in the same proportions as their overall Access Accounts Micro Loan holdings, and pro rata to the value of transfer they are making versus their overall Access Account aggregate holdings.
- The transfer of Micro Loans involved in an Access Account Marketplace transaction will be effected, subject to these Terms, by way of repayment and redrawing notwithstanding that any of the Loans being transferred may be subject to a Credit Event or at risk of a Credit Event. Whilst the Assetz Agent will attempt to draw the attention of potential Transferees to the existence of such Credit Event situations, it accepts no responsibility or liability for the transaction taking place beyond posting notice of Credit Event situations on the Website prior to any transfer being committed to by the Transferee.
- Micro Loans that form part of a Lending Syndicate Members Access Account holdings can only be transferred at their par value or at a discount to their par value (should this feature be currently enabled on the Website) and at a time when the relevant Access Account notice period has expired. For the avoidance of doubt when a transfer of some or all of their Access Account holdings is sought via the Access Account Marketplace the same discount (if any) will be applied to the entire transferred Access Account holdings, whether in Micro Loans or in cash as part of those holdings. It is not permitted for a Transferor to apply a premium to par value for any transfers on the Access Account Marketplace.
- On the effective date of the transfer of Micro Loans transferred via the Access Account Marketplace, the relevant Borrowers and the Transferor shall be released from further obligations towards one another under the relevant Loan Agreements (the “Discharged Obligations”) and shall be treated as if the Loans represented by the relevant Micro Loans had been repaid by the relevant Borrowers in full at that time, save that the Transferor shall remain entitled to receive any unpaid or deferred interest accrued up to and including the date of the transfer after it is paid, if at all, by the relevant Borrowers. Other than that, at the same time the relevant Borrowers and the Transferee shall be treated as if the Loans represented by the relevant Micro Loans had been advanced by the Transferee to the relevant Borrowers. At that point the relevant Borrowers and the Transferee shall assume the Discharged Obligations towards one another as if the Transferee had been the original Lending Syndicate Member in respect of the relevant Micro Loans, including the right to collect unpaid interest accruing from the day after the date of transfer and any capital balances also outstanding at the time of the transfer.
- On the effective date of the transfer of Micro Loans transferred via the Access Account Marketplace, the agreed purchase price of the Access Account holdings being transferred will be paid from the client account of the Transferee to the client account of the Transferor after the deduction of any transfer administration fee that may be charged in relation to the transfer by Assetz Capital Companies. Upon launch there is no such fee charged but the Assetz Capital Companies reserve the right to do so in the future.
- The relevant Borrowers confirm their agreement to these arrangements and waive any requirement for them to be a party to the transfer agreement. In all other respects the relevant Loan Agreements shall remain unaltered and shall continue in full force and effect.
- The functionality of the Access Account Marketplace is expected to evolve over time in order to fulfil its purpose of improving the operation of the Access Accounts across the whole economic cycle. We reserve the right to make changes to the Access Account Marketplace over time or to suspend or withdraw it if we consider appropriate. Updates on the functionality of the Access Account Marketplace will be published on the website.
10. Loan and Security Documents
- Documentation for each Loan will be generated on the basis of the Assetz Capital Companies’ standard forms (subject to any amendment agreed between the Assetz Agent and the borrower or other person) and will incorporate the key commercial terms set out in the information package posted on the Website.
- On or shortly after the date of drawdown of a Loan, the Assetz Agent will register each Lending Syndicate Member that has purchased any Micro Loans in the Loan and, on request, will issue a certificate to evidence the fact that a Lending Syndicate Member has made a Loan.
- The Assetz Agent will prepare an electronic copy of the Loan Agreement and Security Document for each Loan. These electronic copies will be made available free of charge on request to any relevant Lending Syndicate Member.
11. Fees, Interest, Capital Repayments and Broker Payments
- The individual Loan Agreements govern the payment of interest and capital by the Borrower. Under no circumstances shall any interest accrue or be payable to any Lending Member or Lending Syndicate Member until a Loan has been drawn down by the Borrower.
- All interest and capital repayments will be directed to be paid by the Borrower to Assetz SME Capital and upon receipt by Assetz SME Capital will be credited to the client account of the relevant Lending Members net of Fees and Servicing Income. All loan arrangement Fees and Servicing Income, that are paid by a Borrower, are expressly agreed to by the Lending Members.
- So far as presently permitted by HM Revenue & Customs, all interest earned on your Loans will be credited to your client account without deducting income tax or corporation tax. It is the responsibility of each Lending Member to account for any income or corporation tax that may be payable by it. On request by a Lending Member, the Assetz Agent will issue a certificate stating the amount of interest earned by it during the previous financial year. The Assetz Capital Companies shall be entitled to provide to HM Revenue & Customs any and all information relating to payments made to Lending Members at the request of HM Revenue & Customs.
- The Lending Members give irrevocable permission for the Assetz Agent to (a) deduct any tax from any interest earned by Lending Members at any time, past, present or future should it be required to do so by HM Revenue & Customs, and (b) retrospectively deduct such tax from interest and capital repayments from any Micro Loans that the Lending Member may own should interest have been paid gross of tax deductions in the past that HM Revenue & Customs requires tax to have been deducted and paid upon.
- Upon request the Assetz Agent will instruct Assetz SME Capital that any monies in your client account that are not committed to Loans be transferred to the bank account from which the original monies were transferred into your client account. The Assetz Capital Companies reserve the right to deduct from any such payment a charge to cover their direct costs of the transfer.
- The Assetz Capital Companies will usually charge the Borrower an arrangement fee, and sometimes also an exit fee, calculated as a percentage of the amount of the Loan which will be payable on the date of drawdown of the Loan or the date of repayment of the Loan respectively, such percentage to be determined by the Assetz Agent in its discretion and is part of the Fees charged by the Assetz Agent. In addition, a Servicing Income percentage, calculated as an annual percentage rate, to be determined by the Assetz Agent in its discretion prior to the drawdown of the Loan and as permitted in the Loan agreement with the Borrower, will be charged by the Assetz Agent to the Borrower. The Loan interest rate paid by the Borrower, less the Servicing Income, represents the Manual Lending Account net Lending Syndicate Member income. The Fees and Servicing Income are to cover the Assetz Capital Companies costs for running the Website and originating and administering the Loans. The Assetz Capital Companies reserve the right to change this fee structure on new Loans. The fees payable to the Assetz Capital Companies do not pay for the credit reports produced by them and these are provided without charge on an entirely voluntary basis by the Assetz Capital Companies.
- In the event that a loan defaults (see procedures for this in section 14 below) the Assetz Agent may charge Default Interest in addition to the borrower interest rate specified in the Loan Agreement. Subject to the Borrower paying any Default Interest, of the typical rate of 4% per annum, 3% per annum is to be earned by Relevant Lending Syndicate members (note this excludes Investment Account and Access Account holders) and 1% per annum is for the Assetz Agent in addition to the normal Servicing Income to cover the increased cost of managing a defaulted loan.
- Each Assetz Capital Company shall be entitled to pay fees to brokers or other third parties in respect of referrals of Borrower opportunities, whether such payments are made by paying away part or all of the Fees or Servicing Income, or whether they are charged to the Borrower separately and in addition to the Fees or Servicing Income. A Lending Syndicate Member shall be entitled to request details of any Fees or Servicing Income earned by the Assetz Agent but not any such payments made or to be made to brokers or other third parties. Borrowers will be supplied with these details as a part of their Loan Agreements. There may be other payments made by Borrowers to brokers or other third parties that may or may not be disclosed to the Assetz Capital Companies and which do not therefore appear in any of the information supplied by them to Lending Syndicate Members. The Assetz Capital Companies shall have no liability with regard to any such payments and/or with regard to the failure to disclose the same.
12. Role of The Security Trustee and Agent
- By acquiring a Micro Loan or entering a Bid in relation to a Loan, a Lending Member:
- appoints the specified Assetz Capital Company to act as its agent in relation to the Loan and instructs the Assetz Agent to sign the Loan Agreement on its behalf using the Assetz Agent’s standard form loan documentation (including any amendments agreed between the Assetz Agent and the Borrower) incorporating the key commercial terms; and
- appoints the Trustee to act as security trustee in relation to the Security Documents and instructs the Trustee to sign the Security Documents as trustee using the Assetz Agent’s standard form security documentation (including any amendments agreed between the Assetz Agent and the Borrower).
- The Trustee has been established as a company limited by guarantee in order to preserve its independence from the Assetz Capital Companies. Each Lending Member will become a member of Assetz Capital Trust Company Limited and shall remain a member of that company for so long as the Lending Membership continues. By becoming a Lending Member, you:
- give your consent to becoming a member of Assetz Capital Trust Company Limited;
- acknowledge and accept that the Lending Members have guarantee liability for a nominal amount in respect of the debts of Assetz Capital Trust Company Limited. The aggregate liability of the Lending Members in respect of this guarantee shall not exceed the sum of £1 (one pound); and
- Each Lending Member agrees that it will not take any enforcement action or commence any process against any Borrower in its own name but will act only through the Assetz Agent or the Trustee in accordance with these Terms.
13. Administration of Loans
- Each of the Assetz Capital Companies and the Trustee shall be entitled to rely on any instruction, notice or document that it believes to be genuine given to it by any Lending Member or any person on its behalf.
- Each of the Assetz Capital Companies and the Trustee shall be entitled to engage, pay for and rely on the advice or services of any lawyers, accountants, valuers, surveyors or other experts (“Advisors”) in relation to any Loan or any Security Document. Any fees payable in relation to any such advice or services shall be for the account of the Borrower, whether initially paid for by an Assetz Capital Company from time to time or not. Lending Members will be bound by the terms and conditions of any such Advisors including any provisions relating to the limitation of liability and confidentiality. Each Lending Member agrees that it will not take any enforcement action or commence any process against any Advisor in its own name but will act only through the Assetz Agent or the Trustee.
- Each of the Assetz Capital Companies and the Trustee may discharge its obligations under these Terms through its officers, personnel and/or agents.
- Each Lending Member hereby permits the Assetz Capital Companies to undertake the following administrative tasks:
- receiving compliance certificates and management information from the Borrower;
- discussing performance issues with the Borrower;
- corresponding with the Borrower and others and issuing chasing letters and demands;
- amending the terms of the Loan Agreement or the Security Documents provided that such amendments do not affect the interest rate payable, the term of the Loan, the capital repayment schedule or the security.
- The Assetz Agent will provide regular information to Lending Members through the Website on the status of any Loans made by them, including amounts outstanding, capital and interest received, the amounts held in client accounts, the Risk Category of the Loan and any problems experienced with collecting amounts due from Borrowers. No Assetz Capital Company will be liable for any delay (or any related consequences) in crediting a Lending Member’s client account with an amount received under a Loan Agreement.
- Each of the Assetz Agent and the Trustee shall have discretion in the exercise of any authority vested in it as agent and security trustee respectively in accordance with the terms of the Loan Agreement and the Security Documents.
14. Portfolio Management Procedures
- In the event that the Assetz Agent becomes aware or receives notification of a breach of any of the terms & conditions within a Borrower Loan Agreement or where information exists that casts sufficient doubt over the ability of the Borrower to repay the Loan in full (without enforcing any Loan Security), it shall promptly:
- notify the Relevant Lending Syndicate Members of the circumstances, where known; and
- consider whether any external support and/or advice may be needed in order to arrive at a recommended course of action. That support and/or advice may comprise a lawyer, an insolvency practitioner, a valuer / surveyor or any other Advisor deemed by the Assetz Agent to be required.
- The Assetz Agent or the Trustee may ask Relevant Lending Syndicate Members to vote on certain matters affecting a Loan such as:
- the commencement of any enforcement action or legal process against a Borrower;
- the release of any security (save where the relevant Loan has been repaid in full);
- the issue of any waiver letter; or
- the restructuring of the Loan or security.
- Where Relevant Lending Members vote to commence any enforcement action or legal process against the Borrower, it will be deemed that the Relevant Lending Members have given their consent for the relevant professional engaged to conclude the matter in the way they consider most appropriate. Relevant Lending Members will not be required to make further decisions once they have voted in favour of enforcement action or legal process against the Borrower, except subject to 14.4. The Assetz Agent will complete a report to Relevant Lending Members on or around the time of acceptance of any offers showing why the action taken was the best possible outcome in the opinion of the appointed professional(s). The Assetz Agent will hold no liability for the decisions made by the relevant professional, nor for any losses incurred in the process.
- Following a vote to commence enforcement action or legal process against the Borrower, Relevant Lending Members will only be required to participate in further votes should the Borrower or someone on their behalf make an offer of full and final settlement that does not repay that loan in full.
- Each Relevant Lending Member agrees that it will keep its email address details provided to the Assetz Agent up to date and that it is responsible for checking messages on a sufficiently regular basis.
- In relation to a proposed course of action, each Relevant Lending Syndicate Member shall be deemed to have given its consent to such proposal if the Assetz Agent shall have arranged a poll of the Relevant Lending Members on the proposal and it shall have been approved by the majority (calculated in accordance with clause 14.9 below) who vote in that poll.
- Any communication from the Assetz Agent which requires a Relevant Lending Member to vote on a particular course of action must be responded to by the Relevant Lending Member within the time period specified by the Assetz Agent. If the Relevant Lending Member does not vote within such time period then that Relevant Lending Member will be disregarded for that particular vote. There is no quorum required for a valid decision to be made.
- Where there are more than two courses of action on which to vote the Assetz Agent shall use its reasonable endeavours to devise a poll that provides clear alternative options to the Lending Syndicate Members. The Assetz Agent accepts no responsibility for the failure of external parties to provide information to them in good time for being included in such a vote.
- On a poll, each Relevant Lending Syndicate Member shall have one vote for every pound of the nominal value of the Micro Loans held by it. The Assetz Agent shall be obliged to act in accordance with the option which has received the highest number of votes.
- In the event of a tie, the winning proposal shall be the one which received its total votes first in order of time and the Assetz Agent shall take action accordingly. The Assetz Agent shall communicate the decision made to all Relevant Lending Syndicate Members as soon as reasonably practicable.
- Notwithstanding the fact that all Security Documents are held by the Trustee on trust for the Lending Syndicate Members, any enforcement action which is directed by the Relevant Lending Syndicate Members under this paragraph 14 will be undertaken by the Assetz Agent acting in accordance with these Terms.
- Calculations made by the Assetz Agent and/or the Trustee of monies due to Lending Members will be made available on request by the Lending Member within 14 days of such request. Save as may be specified in any applicable intercreditor or priority document to the contrary, all monies arising from the enforcement of any Security Documents will be paid in the following order:
- first, to meet any costs incurred in respect of any enforcement action by the Trustee and/or the Assetz Agent and/or by any other professional, manager, receiver or administrator appointed by either of them;
- second, to meet the payment of any outstanding Fees or Servicing Income due to the Trustee and/or the Assetz Agent and any brokers or introducers in respect of the relevant Loan;
- third, to repay the capital amount of each Micro Loan held by each Lending Syndicate Member on a proportional basis by reference to the percentage of the total number of Micro Loans held by each Lending Syndicate Member. This includes repayments to the Provision Fund of any capital losses of Lending Members already covered by it;
- fourth, to repay to the Provision Fund any late interest payments that have been paid by the Provision Fund to the Lending Syndicate Members.
- fifth, to pay any outstanding interest on the relevant Loan due to each Lending Syndicate Member on a proportional basis by reference to the percentage of the total number of Micro Loans held by each Lending Syndicate Member.
- Further information on Portfolio Management and Default Procedures is available on the Credit Risk page of the Website.
15. Control by Lending Members
- Each Lending Member retains day-to-day control of any funds standing to the credit of its client account save to the extent of any funds that are frozen in respect of any Bid in accordance with paragraph 7 above or as required to be paid to HM Revenue & Customs.
- Lending Members retain complete control and discretion over whether or not to enter a Bid and on what terms unless they have chosen to invest via a Loan Selection Facility.
- Once a Loan has been advanced, each Lending Syndicate Member is entitled to exercise full day-to-day control over its rights under the Loan and the Security Documents through the mechanisms set out in paragraphs 12, 13 and 14 of these Terms.
16. Duty of Confidentiality
- Lending Members are permitted to access the information on the Website solely for their personal use or in the course of their business for the purpose of assessing whether or not to participate in a Loan and for administering Loans that have been advanced. The content of the Website is not permitted to be used for any other purpose.
- Each Lending Member accepts that it owes a duty of confidentiality to the Assetz Capital Companies with regard to:
Such documents and information may not be disclosed to any third party.
- the internal operating systems and procedures used by the Assetz Capital Companies;
- the Loan Agreements and Security Documents; and
- any information provided in relation to potential or actual Borrowers.
- Each Lending Member covenants with each of the Assetz Capital Companies not to use the Website or any information contained in it for the purpose of soliciting any person (whether Borrower or otherwise) away from the Assetz Capital Companies.
- It is acknowledged by the Assetz Capital Companies that the duty of confidentiality owed by a Lending Member under paragraphs 16.2 and 16.3 above does not extend to information previously held by that Lending Member or that is otherwise in the public domain.
- Each Lending Member is responsible for maintaining the security of its Username and password for use of the Website. You must notify an Assetz Capital Company immediately if there is any unauthorised use of your password or Username or any other security breach of which you become aware. Each Lending Member is responsible for all use of the Website through its Username and password.
- If in the opinion of an Assetz Capital Company you have breached the duty of confidentiality set out in this paragraph your access to the Website may be suspended and your Membership may be suspended without notice or further explanation and Assetz Agent reserves its rights to damages or any other legal remedy as it sees appropriate.
- Any references to a Lending Member on the Website will be conducted through the Username.
- The Assetz Capital Companies shall be entitled to take any action necessary to comply fully with the law and any notices received from government agencies including but not limited to any request to provide information about Lending Members and/or Borrowers under money laundering, fraud or anti-terrorism regulations. The Assetz Capital Companies are registered with HM Revenue and Customs for the purposes of money laundering regulations compliance.
- Assetz SME Capital is registered under the Data Protection Act 1998 with registration number Z3338899. The Trustee is registered under the Data Protection Act 1998 with registration number Z3505930.
17. Termination of Membership
- A Lending Member may terminate its Lending Membership with immediate effect by sending written notice of termination to an Assetz Capital Company.
- An Assetz Capital Company may terminate a Lending Membership at any time and for any reason with immediate effect by sending written notice of termination to the Lending Member.
- In both cases above complete termination will only be possible if the Member does not have any current Loans outstanding and has withdrawn all funds from their client account. Neither party is required to give any reasons for termination.
- None of the Assetz Capital Companies provides any investment advice. Nothing that any Assetz Capital Company does in operating the Network (whether on the Website or otherwise and including offering the Loan Selection Facilities) is intended to constitute advice or a recommendation to enter into a Loan. For the avoidance of doubt this includes the provision of information disclosing a potential or actual reduction of capital value on a loan and where Micro Loans are bought or sold at a discount to their full capital value. The Lending Members are responsible for obtaining their own independent financial advice before making any lending decisions.
- Whilst each Assetz Capital Company will use reasonable care to ensure that the information provided by it is accurate and clear, none of the Assetz Capital Companies or the Trustee accepts any responsibility or liability for:
- the adequacy, accuracy and/or completeness of any information about any Borrower, any Loan or any associated security made available to a Lending Member or prospective Lending Member through the Website or otherwise and any action to hold, buy or sell Micro Loans a Lending Member may take based upon this information; or
- the legality, validity or enforceability of any Loan Agreement or Security Document or any other agreement, arrangement or document entered into made or executed in anticipation of or in connection with any Loan Agreement or Security Document.
- None of the Assetz Capital Companies nor the Trustee will be liable to any Lending Member for any loss or damage which it may suffer as a result of being a Lending Member or using the Website or being unable to use the Website, except where such loss or damage was caused by its gross negligence or wilful misconduct. The Assetz Capital Companies will not be liable for any breach of these Terms arising from circumstances beyond their reasonable control.
- Nothing in these Terms shall limit the liability of the Assetz Capital Companies for personal injury or death, or for any other liability the exclusion or limitation of which is not permitted by law.
19. Complaints Procedure
- If a Lending Member has a complaint about the service operated by the Assetz Capital Companies please contact our Customer Care Complaints Team by sending an email to [email protected] stating your lender refence, a summary of your complaint and preferred contact details.
- Alternatively, you can visit the Complaints page on our website which provides additional information about the procedure.
- Investments in Micro Loans and interest paid on those investments are calculated to 20 decimal places, which will feed through to Investment Account, Access Account, Manual Lending Account and client account cash balances stated to 20 decimal places. Withdrawals from the client account can only be made in whole pennies and client account cash balances available to withdraw are effectively rounded down to the nearest penny as a result.
- The address to be used for communications to a Lending Member will be that provided by that Lending Member in its membership application or such other address as it may from time to time designate by written notice to the Assetz Capital Companies.
- Any notice or other document shall be deemed to have been received by the addressee two working days following the date of despatch if the notice or other document is sent by registered post, or simultaneously with the delivery or transmission if delivered by hand or if transmitted by electronic means and the sender can show satisfactory transmission.
- Lending Membership will be governed by these Terms to the exclusion of all other terms and conditions. Any variation to these Terms must be in writing and posted on the Website.
- If any of the Terms is found to be illegal, invalid or unenforceable by any court of competent jurisdiction, the remaining Terms shall continue in full force and effect.
- A waiver by a party of a breach of any provision shall not be deemed a continuing waiver or a waiver of any subsequent breach of the same or any other provision. Failure or delay in exercising any rights under these Terms shall not prevent the exercise of that or any other right.
- A Lending Member may not assign or transfer any benefit, interest or obligation under these Terms. Each of the Assetz Capital Companies shall be entitled to assign or transfer its rights under and interest in these Terms.
- The provisions of the Contracts (Rights of Third Parties) Act 1999 shall not apply to these Terms.
- These Terms shall be governed by English law and the parties submit to the non-exclusive jurisdiction of the English courts.
21. Altered Circumstances and Changes to The Terms
- If there is a change in circumstances or a change in the law, HM Revenue & Customs practice or regulations or the interpretation of them, or if any Assetz Capital Company wishes to make changes to the services which it provides on the Network or Website, the Assetz Capital Companies may amend these Terms from time to time as they think fit.
- Where a change to these Terms does not affect existing Micro Loans and does not disadvantage existing Lending Members or where the changes are reasonably believed by the Assetz Capital Companies to be in the interests of the Lending Members, the Assetz Capital Companies may make any amendments to these Terms at any time with immediate effect. Where it is necessary or desirable to make changes to these Terms which affect existing Micro Loans or may disadvantage existing Lending Members, the Assetz Capital Companies will endeavour to provide 30 days notice before any changes take effect. Any such notice shall be posted on the Website.
- Any amendments will be posted on the Website as soon as reasonably practicable. By continuing to use the Website, by either logging in or leaving investments within Investment Accounts or Access Accounts on a daily basis, each Lending Member agrees to be bound by the amended Terms.