GENERAL TERMS AND CONDITIONS WDL CREDIT FUNDS B.V.
Article 1 Definitions
In these Terms and Conditions, the following definitions shall apply:
Manager: WDL Kredietfondsen B.V.
Service Agreement: agreement between WDL Kredietfondsen B.V. and the Lender setting forth the arrangements surrounding the agreed services and costs.
Financing(s) or Loan(s): the money loan made by Lender to Borrower pursuant to the Money Loan Agreement.
Lender: the lender of the Money Loan under the Money Loan Agreement.
Borrower: the recipient of the Money Loan under the Money Loan Agreement.
Customer(s): Borrower and/or Lender
Credit Risk: the risk of default and write-off of all or part of the Money Loan.
Money Loan Agreement: the written record of the agreements between Borrower, Lender and Manager.
Parties: Lender, Borrower and Manager.
Article 2 Applicability
2.1 These Terms and Conditions apply to all agreements and the entire relationship between the Manager and its Clients. The provisions of the General Conditions shall apply to the extent that no deviating agreements have been made in the Money Loan Agreement, Pledge Deed or other agreements between the Parties.
2.2 The Manager is authorized to unilaterally amend the General Terms and Conditions. The Manager shall send the amended Terms and Conditions electronically or by mail to the Customers within two weeks of adoption of the amended Terms and Conditions.
2.3 Terms and conditions (general or otherwise) used by a Customer are not applicable.
Article 3 Creation and duration of the service agreement
The Servicing Agreement is established upon receipt by the Manager of the fully signed Servicing Agreement or the fully signed Money Loan Agreement and runs for the duration of the Financing(s) entered into.
Article 4 Services
4.1 The services of the Manager shall consist of:
- Selection of funding propositions for the Lender.
- Intermediate between Lender and Borrower regarding financing terms.
- Preparation of financing and collateral documentation.
- Supervise the process to book out the Financing.
- The collection and onward payment of amounts due under the Money Loan Agreement.
- Management of the Loan during the term if agreed upon as a service in the Servicing Agreement and/or in the Loan Agreement, including:
- Make (payment) arrangements
- Supervised foreclosure of collateral.
- All actions necessary for the performance of the Money Loan Agreement or for its repayment.
Article 5 Agreement of Money Loan and security deeds
5.1 The Financing provided by Lender to Borrower is provided on the terms and conditions set forth in the Loan Agreement. The Money Loan Agreement shall only come into existence once all the Parties named therein have validly signed it. The Loan will be charged off at a time to be determined by the Parties by mutual agreement.
5.2 A mortgage deed or share transaction must be executed before a notary appointed by the Fund Manager. The costs of executing the deed(s) shall be borne by the Borrower.
5.3 If a pledge deed is among the agreed securities, the Fund Manager shall arrange for the pledge deed and the registration of the pledge deed with the Tax Authorities.
5.4 Pledging of future claims that do not yet arise from an existing legal relationship is not possible and therefore does not occur through registration of a stamp duty deed claims.
Article 6 Administration and management of the Money Loan
6.1 The Manager acts as administrator of the Loan on behalf of the Clients. This includes:
- Periodically prepare and provide a loan statement that records interest, repayment, costs and remaining loan balance during the term of the Loan.
- Collecting from Borrower and remitting to Lender amounts due under the Money Loan Agreement and accounting for amounts paid by Borrower to Lender.
- In case of storno or payment problems, still attempt to collect amounts due and contact Borrower. If there are still payment problems after contact with Borrower, coordination with Lender regarding the next steps to be taken.
6.2 If the Lender has also given the Loan to the Manager in management, this means additionally:
- Annually request financial information from the Borrower to monitor Credit Risk.
- In the event of risk signals, engage with Borrower to identify the risk to Lender and take action if necessary. Any attorney fees and litigation costs shall be borne by Borrower. The collateral provided may be enforced by the Fund Manager / Lender for collection of expenses incurred. These costs, after being paid by the Manager by way of advance payment, will be charged by the Manager to Lender by way of collection. The Manager and/or Creditor will recover the costs from Borrower. To the extent that the costs are not recoverable from Borrower, such costs shall remain the responsibility of Creditor.
- If concrete signs of continuity problems due to non-payment arise, monthly debtor lists will be requested from the Borrower and follow-up pledge deeds will be registered with the Tax Administration, if a pledge of receivables has been agreed upon. The Manager shall not be liable for any failure to create this lien (in a timely or complete manner).
6.3 The Manager shall give the Client(s) the opportunity to take note of the information referred to in 6.1 and 6.2. Customers are required to verify this information immediately upon receipt. Clients must promptly notify the Administrator of any inaccuracies in this information.
6.4 If the Customers have not been disputed within 12 months after the information has been provided to the Customer(s), the information shall be deemed to have been approved by the Customer(s).
6.5 The Client(s) must promptly provide to the Fund Manager on their own accord all information of interest to or requested by the Fund Manager.
Article 7 Collection, (continued) payments, reversals and early repayment
7.1 The parties agree that Borrower shall pay to the Manager all amounts owed to Lender under the Money Loan Agreement. The Manager shall collect the amounts due at the time agreed upon by direct debit and forward these amounts to Lender. In any case, payments must be made by book-entry into the Fund Manager’s account number no later than the last day of the month.
7.2 In accordance with Section 423 of Book 7 of the Dutch Civil Code, Lender hereby instructs and authorizes the Manager to collect all amounts referred to in Section 7.1 in its own name and to the exclusion of Lender. This charge and power of attorney is irrevocable and ends by operation of law at the time the Service Agreement ends.
7.3 The Manager shall pay the amounts collected by it three (3) working days after receipt in its account to the Lender by transfer to a Dutch bank account number specified by the Lender, subject to delays due to failures/delays in transferring from the relevant banking institution with which the Manager has closed its bank account.
7.4 No interest shall be paid on monies held by the Manager.
7.5 If the Borrower has not fulfilled its payment obligation by the final payment date referred to in Section 7.1, that party shall be in default from that moment and without further notice of default and the entire claim against the non-performing party shall be immediately due and payable in full.
7.6 Lender authorizes the Manager to collect all fees agreed upon in the Service Agreement from Lender’s bank account by direct debit.
7.7 Borrower authorizes the Manager to collect all fees agreed upon in the Money Loan Agreement from Borrower’s bank account by direct debit.
7.8 If the interest and redemption collected from the Borrower are reversed after these amounts have already been forwarded by the Manager to the Lender, a claim of the Manager against the Lender in the amount of these forwarded amounts will arise at that time.
7.9 Lender shall, at the first request of the Manager, return such amounts to the Manager within a period of five (5) business days.
7.10 If the Borrower wishes to repay the principal amount of the Money Loan early, a written (or electronic email notification) request to do so must be submitted to the Manager. The Manager will endeavor to provide a redemption note within two weeks of receipt of this request, which will include the principal amount to be repaid, accrued interest and the agreed compensation interest and any exit fees.
7.11 Notary fees for cancellation of (mortgage) collateral shall be borne by the Borrower.
7.12 If the Grantor fails to meet its payment obligation to the Manager on time, the Grantor shall be in default from that time and without further notice of default and the entire claim against the Grantor shall be immediately due and payable.
Article 8 Reimbursements
8.1 Lender owes the Manager the one-time brokerage fee as agreed in the Service Agreement.
8.2 Lender shall pay to the Manager the administration fee as agreed in the Service Agreement. This fee is collected monthly from the Lender by the Manager.
8.3 If Lender administers the Money Loan, as stipulated in Article 6.2, Lender shall owe Management Fee to Manager as agreed in the Servicing Agreement. This fee is collected monthly from the Lender by the Manager.
8.4 Borrower shall be liable to the Manager for closing costs, the amount of which shall be agreed upon in the Money Loan Agreement. These fees are collected at the time of provision of the Loan.
8.5 Borrower shall pay to the Manager administrative fees as agreed in the Money Loan Agreement. This fee is collected monthly from the Borrower by the Manager.
8.6 The payment obligations as mentioned in Articles 8.1 to 8.5 come into effect at the moment the Money Loan Agreement is validly signed by all Parties.
8.7 If Lender or Borrower fails to honor a signed but not yet executed Money Loan Agreement, the party in default shall immediately owe a fee to the Manager in the amount of 3.5% of the agreed principal amount of the Money Loan.
8.8 If Lender fails to enforce a signed but not yet drawn down Money Loan Agreement, Lender shall immediately owe Borrower compensation in the amount of 2.0% of the agreed principal amount of the Money Loan and Lender shall be liable for any consequential loss resulting from failure to obtain the Loan or to obtain it on time.
8.9 If Borrower fails to enforce a signed yet unbooked Money Loan Agreement, Borrower shall immediately owe to Lender a fee in the amount of 5.0% of the agreed principal amount of the Loan.
Article 9 Costs
All costs incurred by the Manager and related to execution and fulfillment of the agreement, collection, enforcement measures, collection costs (judicial or extrajudicial), legal aid costs shall be borne by the Client in respect of whom they are incurred. The relevant costs will be incurred in consultation with Lender or Borrower and charged separately and, where possible, recovered from the Customer in respect of whom these costs have been incurred.
Article 10 Liability
10.1 The Manager shall not be liable to Customers for any loss on any basis whatsoever unless the loss was caused by intentional or deliberate recklessness.
10.2 Any liability of the Manager against a Client, regardless of its basis, shall in all cases be limited to a maximum of the amount of compensation received from the relevant Client for the calendar year preceding the event causing the loss or, if less, the amount covered and actually paid out by the Manager’s liability insurance.
10.3 The Fund Manager has a mediating role only. It facilitates, administers and manages the creation of financing between Lender and Borrower. The content of the prepared financing memorandum is (partly) based on information provided by the Borrower. The Borrower is obliged to provide all information relevant to the Loan correctly and completely. The Administrator shall not be liable for any omissions, errors or other inaccuracies therein or the consequences thereof. Accordingly, the foregoing implies that the Manager has no advisory role to Clients. Clients should have themselves assisted by knowledgeable parties if they are not themselves able to oversee the risks and consequences of the agreements to be made.
10.4 All damages to be suffered by the Manager or Lender due to incorrect/incorrect/incomplete information provided by the Borrower shall be compensated by the Borrower and shall be recovered from the Borrower. The sources underlying the analysis are considered reliable by the Manager, but verification of these sources is not part of the analysis. Accordingly, the Manager does not guarantee the accuracy and completeness of the data or information provided in the proposition or by extension, and therefore accepts no liability for any inaccuracies or omissions in the proposition.
10.5 The Manager is not an asset manager or investment advisor. It only selects propositions from the market and submits them to Geldgevers. The Lender itself decides to provide the Financing for its own account and risk.
10.6 If Borrower proves unable to meet the interest and repayment obligations or to repay or refinance the remaining loan amount at the end date of the Loan, the Lender runs the risk of not receiving (part of) the Loan back. The Manager is in no way liable for the Credit Risk incurred by the Lender.
Article 11 Confidentiality
11.1 The Parties undertake to each other to keep confidential all data and information about each other’s organization and financial affairs that become available to them in the formation of the Money Loan Agreement and Service Agreement. The foregoing applies with the exception of information already publicly available and information included in the Information Memorandum prepared by the Manager. After all, this information memorandum serves to bring about a transaction and will therefore be allowed to be shared by the Manager with potential Lenders. Lender will not then further disseminate the information in the Information Memorandum.
11.2 Borrower agrees that the Manager may provide to Lender all data and information received from Borrower upon formation of the Money Loan Agreement and during the term of the Money Loan Agreement.
Article 12 Privacy
All personal data obtained by Administrator from a Party under the Services Agreement will be handled in accordance with applicable privacy laws.
Article 13 Evidential power of administration WDL Kredietfondsen B.V.
The Manager administers the rights and obligations that the Clients have to the Manager or to each other under the Money Loan Agreement, Service Agreement or any other agreement. The Fund Manager’s records shall constitute compelling and complete evidence, subject to proof to the contrary.
Article 14 Communications to multiple (legal) persons
If the Lender or Borrower involves more than one (legal) person, each (legal) person has the authority to receive all communications from the Manager and make all communications to the Manager also on behalf of the other.
Article 15 Contract Assumption
The Manager is authorized to co-transfer the legal relationship with the Client(s) under the Money Loan Agreement, Service Agreement or any other agreement to a legal successor of the Manager. The Customers hereby cooperate in the contract assumption.
Article 16 Final provisions
Nullity, nullification or ineffectiveness of any of the provisions of these General Terms and Conditions shall not affect the validity of the remaining provisions. If one or more provisions are or become void, nullified or non-binding, replacement provisions will be agreed between the parties that are valid and approximate the scope of the void, nullified or non-binding provisions.
Article 17 Choice of law and forum
The Service Agreement, Money Loan Agreement and General Terms and Conditions, including the formation and performance thereof, shall be governed by Dutch law. All disputes which may arise between the Parties shall be submitted exclusively to a court in East Brabant.