THIS AGREEMENT is dated – SEE SCHEDULE 1
PARTIES – SEE SCHEDULE 1
The Seller has agreed to sell and the Buyer has agreed to buy the Receivable on the terms of this agreement.
1.1 Capitalised terms used in this agreement that are not otherwise defined in this agreement shall have the meaning given to them in the BondMason Platform Service Terms. The definitions and rules of interpretation in this clause apply in this agreement.
BondMason: BondMason Ltd, a company incorporated in England & Wales under company registration number 09616491, having its registered office at 1 The Foresters, Harpenden, Hertfordshire, AL5 2FB; and registered with the Office of the Data Commissioner (registration number ZA145612.
BondMason Platform: receivables purchasing platform operated by BondMason and accessible via https://www.bondmason.com/.
BondMason Platform Service Terms: the agreement to which BondMason, the Buyer and the Seller are parties, the current version of which is displayed on the BondMason Platform.
Disclosed: information about the Receivable, whether included in Schedule 1 or published on the BondMason Platform.
Encumbrance: any interest or equity of any person (including any right to acquire, option or right of pre-emption) or any mortgage, charge, pledge, lien, assignment, hypothecation, security interest, title retention or any other security agreement or arrangement.
P2P Finance Platform: a peer-to-peer finance platform approved by BondMason.
Price: the price of the Receivable to be paid by the Buyer to the Seller pursuant to this agreement, the amount of which is specified in Schedule 1.
Receivable: cash receipts paid to the Seller in respect of the loan made or receivable purchased by the Seller on a P2P Finance Platform (such loan or receivable being specified in Schedule 1), net of any fees payable by the Seller on such P2P Finance Platform.
Tax or Taxation: all forms of taxation and statutory, governmental, state, federal, provincial, local, government or municipal charges, duties, imposts, contributions, levies, withholdings or liabilities wherever chargeable and whether of the UK or any other jurisdiction; and any penalty, fine, surcharge, interest, charges or costs relating thereto.
VAT: value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax.
Warranties: the warranties set out in clause 4 and Schedule 2 (Warranties).
1.2 References to clauses and Schedules are to the clauses of, and Schedules to, this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.3 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement.
2. AGREEMENT TO SELL AND PURCHASE
2.1 The Seller shall sell with full title guarantee and free from Encumbrances, and the Buyer shall purchase the Receivable free from all Encumbrances via the BondMason Platform in accordance with the BondMason Platform Service Terms, with effect from the date of this agreement.
2.2 The Buyer shall not acquire or assume any of the following under this agreement:
(a) Any liability to any borrower or any third party in connection with the Receivable; and
(b) any Tax for which the Seller is liable, whether or not then due, and any liability for financing charges relating to the Receivable.
3. PRICE AND COMPLETION
3.1 The Buyer shall pay the Price to the Seller on the date of this agreement, which obligation shall be discharged through the debits and credits made by BondMason on the Platform in the manner specified in Clause 4.4 of the BondMason Platform Service Terms (“Completion”).
3.2 If Completion does not occur in accordance with Clause 3.1, this agreement shall immediately terminate and cease to have effect.
4.1 The Seller warrants that, except as Disclosed, each Warranty is true, accurate and not misleading on the date of this agreement.
4.2 Warranties qualified by the expression “so far as the Seller is aware” (or any similar expression) are deemed to be given to the knowledge, information and belief of the Seller after it has made due and careful enquiries by reference to the BondMason Platform with respect to the Receivable. The Buyer acknowledges that it may take up to 48 hours for information supplied by a third party P2P Finance Platform Operator to be reflected on the BondMason Platform, as well as the limitations on Claims under Clause 5 of this agreement.
4.3 Each of the Warranties is separate and, unless otherwise specifically provided, is not limited by reference to any other Warranty or any other provision in this agreement.
4.4 Except for the matters Disclosed to the Buyer on the Platform, no information of which the Buyer, its agents or advisers has knowledge (in each case whether actual, constructive or imputed), or which could have been discovered (whether by investigation made by the Buyer or on its behalf), shall prejudice or prevent any Claim, or reduce the amount recoverable under any Claim.
5. LIMITATIONS ON CLAIMS
5.1 The aggregate liability of the Seller for all Claims in relation to each Receivable shall not exceed the Price paid for that Receivable.
5.2 The Seller shall not be liable for a Claim unless notice in writing of the Claim, summarising the nature of the Claim (in so far as it is known to the Buyer) and, as far as is reasonably practicable, the amount claimed, has been given by or on behalf of the Buyer to the Seller via the Platform on or before the fifth anniversary of Completion.
5.3 Neither the Seller nor BondMason makes any warranty or representation as to the timeliness, accuracy or reliability of information received from the third party P2P Finance Platform Operator and Disclosed without alteration by the Seller or BondMason.
5.4 The Buyer shall have no recourse against any of the Seller, the borrower, the P2P Finance Platform Operator or BondMason under or in respect of the loan or receivable related to the Receivable in the event that the Receivables are not paid to the BondMason Customer Funds Account.
5.5 Nothing in this clause 5 applies to exclude or limit the liability of the Seller to the extent that a Claim arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by the Seller, its agents or advisers.
6. LIABILITIES OF THE SELLER AND THE BUYER
6.1 Nothing in this agreement shall pass to the Buyer, or shall be construed as acceptance by the Buyer of, any liability, debt or other obligation of the Seller (whether accrued, absolute, contingent, known or unknown) for anything done or omitted to be done before or on the date of this agreement in connection with the Receivable and the Seller shall:
(a) indemnify the Buyer against all Losses suffered or incurred by the Buyer arising out of or in connection with any such thing; and
(b) perform any such obligation falling due for performance or which should have been performed before the date of this agreement.
7. VALUE ADDED TAX
All sums payable, or consideration given, by the Buyer under this agreement are exclusive of VAT and the Buyer shall in addition pay an amount equal to any VAT chargeable on those sums or consideration.
7.1 The Seller and the Buyer expect that the sale of the Receivables under this Agreement will be an exempt supply for VAT purposes. However, if HMRC at any time, determines in writing that VAT is payable on the sale of all or some of the Receivables, the Seller shall promptly deliver to the Buyer a copy of that written determination and a proper VAT invoice in respect of the VAT payable and the Buyer shall within five days of the receipt of such determination and VAT invoice pay to the Seller a sum equal to:
(a) the amount of VAT determined by HMRC to be chargeable; and
(b) any interest charged by HMRC due to late payment of such VAT to the extent that it results from a breach by the Buyer of any of its obligations under this clause 7.
The Buyer shall be liable to indemnify the Seller in respect of any liability to Tax which the Seller may incur in respect of the income for Tax purposes of the Buyer derived from this Agreement (whether such Tax is payable by the Seller by deduction or withholding or by any other means); and notwithstanding any other provision of this Agreement the Seller shall be entitled when making any payment to the Buyer in respect of the Receivables to make all such deductions or withholdings for or on account of any tax as it reasonably considers may be required by law to be deducted or withheld from such payments.
9. ADMINISTRATION OF THE RECEIVABLE
9.1 The Seller shall comply with the terms and conditions governing the operation of the P2P Platform from which the Receivable is due under and shall not do anything to interfere with the collection of the Receivable, but shall not be bound to take any direct legal proceedings or other steps of its own accord to recover the Receivable.
9.2 The Buyer shall not seek to recover the Receivable directly and shall not do anything to interfere with its collection.
10. DATA PROTECTION
Each of the Buyer and the Seller undertake to comply with the provisions of the BondMason Platform Service Terms in relation to the Receivable and this agreement after the Completion Date.
11. FURTHER ASSURANCE
The Seller shall (at its own expense) promptly execute and deliver such documents, perform such acts and do such things as the Buyer may reasonably require from time to time for the purpose of giving full effect to this agreement.
12.1 The Buyer, may freely assign or transfer or otherwise dispose of the Buyer’s right, title and interest in this agreement and all associated rights under the BondMason Platform Service Terms in accordance with the provisions of Clause 6.5 of the BondMason Platform Service Terms (or in any manner approved by BondMason for that purpose) so that BondMason can record the assignment, give notice of it to the Seller and direct payment of the Receipts as appropriate, provided that the Seller’s rights and obligations under this agreement shall not be adversely affected in any way whatsoever.
12.2 The Seller shall not assign, transfer or otherwise dispose of your rights or obligations under this agreement.
12.3 Any assignment in breach of any of the provisions of this Clause 11 shall be void and of no effect.
13. VARIATION AND WAIVER
13.1 No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13.2 No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. A waiver of any right or remedy under this agreement or by law is only effective if it is in writing.
13.3 Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
14.1 The BondMason Platform Service Terms shall govern the giving and receipt of notices in respect of this agreement.
If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
16. GOVERNING LAW AND JURISDICTION
16.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
16.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
This agreement has been entered into on the date stated at the beginning of it.
Schedule 1 Receivable and values
The Receivable sold pursuant to this agreement and its value is as follows:
- [details of seller] (Seller).
- [details of buyer] (Buyer).
Date of Agreement: [date]
Price of Receivable: [price]
For information only: details of the loan or receivable in respect of which the Receivable is payable to the Seller
BondMason reference number: [reference number]
Loan/receivable date: [date]
Loan/receivable amount: [amount]
Loan/receivable interest rate: [rate]
Schedule 2 Warranties
Part 1. General Warranties
1. INFORMATION SUPPLIED
1.1 So far as the Seller is aware, all information contained in this agreement and all other information relating to the Receivable originated on the BondMason Platform and given by or on behalf of the Seller to the Buyer are true, accurate and complete and are not misleading.
1.2 So far as the Seller is aware, there is no information that has not been Disclosed which, if Disclosed, might reasonably affect the willingness of the Buyer to buy the Receivable) on the terms of this agreement.
2. CAPACITY OF THE SELLER
The Seller has all requisite power and authority, and has taken all necessary corporate action (if any are required), to enable it to enter into and perform this agreement and all agreements and documents entered into, or to be entered into, pursuant to the terms of this agreement.
3. TITLE TO THE RECEIVABLE
3.1 The Seller has good and marketable title to the Receivable, and the Receivable is legally and beneficially owned by the Seller. There are no Encumbrances over the Receivable, and the Seller has not agreed to create any Encumbrances over the Receivable or any part of it.
4.1 So far as the Seller is aware, it:
(a) is not engaged in, subject to or threatened by any litigation, administrative, mediation or arbitration proceedings in relation to the Receivable; or
(b) is not the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body.
5. INSOLVENCY OF SELLER
5.1 The Seller is solvent and able to pay its debts as they fall due.
5.2 No order has been made or petition presented, meeting convened or resolution passed for the winding up of the Seller
5.3 So far as the Seller is aware, no receiver been appointed nor has any distress, execution or other process been levied in respect of the Receivable and no events have occurred which would justify any such proceedings.
6.1 So far as the Seller is aware, all legislation and all orders, provisions, directions and conditions relating to the Receivable (including VAT) has been duly complied with in all respects.