FREEDOM Money ISSUED BY FREEDOM LEISURE FINANCE TERMS & CONDITIONS
RECITAL:
The Lender has agreed at the request of the Borrower to provide the Loan and the Borrower accepts the Loan on the terms and conditions set out in this Agreement.
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement unless the contrary intention appears:
Agreement means this Loan Agreement between the Borrower and the Lender.
Business Day means a day on which trading banks are customarily open for business in Sydney other than a Saturday or Sunday.
Default Interest Rate means the rate listed on the contract schedule.
Dollars and the sign $ means the lawful currency of Australia.
Drawdown Date means. Loan advanced date
Establishment Fee means the establishment fee listed on the contract schedule.
Event of Default means any of the events omissions or occurrences specified in clause 9.2.
Interest Rate means the interest rate listed on the contract schedule.
Law means any law, statute, act of parliament or applicable legislature, regulation, code or delegated legislation and any other order, direction or directive made under any of them.
Loan means the principle amount borrowed.
NCC means the National Credit Code.
Purpose means personal loan.
Repayment Date means the date when the loan is repaid, unless otherwise agreed to by the parties in writing.
1.2 Interpretation
In this Agreement:
(a) words importing the singular number include the plural and vice versa;
(b) any gender includes the other genders;
(c) any reference to a person includes a reference to a corporation firm authority government or governmental agency.
(d) any reference to legislation or to a legislative provision includes all regulations orders proclamations notices or other requirements under that legislation or legislative provision and it also includes any amendments modifications or re-enactments of that legislation or legislative provision and any legislation or legislative provision substituted for and any statutory instrument issued under that legislation or legislative provision.;
(e) the headings in this Agreement are for reference purposes only and do not in any way influence or affect the meaning of this Agreement;
(f) a reference to any deed, agreement, licence, document or other instrument (including this Agreement) includes a reference to that deed, agreement, licence, document or other instrument as renewed extended novated varied or substituted from time to time;
(g) a reference to any party to this Agreement or to any other deed agreement licence document or other instrument required under this Agreement or for the purposes of this Agreement includes that party's executors administrators substitutes successors and permitted assigns;
(h) where under or pursuant to this Agreement or anything done under this Agreement the day on or by which any act matter or thing is to be done is not a business day such act matter or thing must be done on the immediately succeeding business day.
(i) references to clauses and schedules are references to clauses and schedules of this Agreement;
(j) a reference to winding up or bankruptcy includes bankruptcy, winding up, liquidation, dissolution, becoming an insolvent under administration (as defined in section 9 of the Corporations Act 2001 (Cth) and being placed under official management; and
(k) a reference to acceptance, signing, and execution also include an electronic or facsimile transmission of acceptance, signing, and execution.
2. PROVISION OF LOAN
(a) The parties agree that the Lender provided to the Loan to the Borrower on the Drawdown Date.
(b) The parties agree that the Loan is provided to the Borrower on the terms and conditions set out in this Agreement.
3. PAYMENT OF INTEREST
3.1 Rate of Interest
Interest shall accrue on the Loan at the Interest Rate on and from the Drawdown Date and will be calculated on the monthly balance of the Loan on the basis of a 365 day year.
3.2 Payment of Interest
(a) The Borrower agrees to pay interest on the Loan monthly in arrears.
(b) Any accrued interest and not paid shall be payable on the Repayment Date.
3.3 Default Interest
In the event that the Borrower fails to pay interest on the due date for such payment and such failure continues for more than 5 Business Days, interest shall be payable on the amount of the overdue or unpaid interest at the Default Interest Rate.
4. OTHER PAYMENTS
(a) The Borrower agrees to pay the Establishment Fee to the Lender on the Drawdown Date.
(b) The Borrower must on demand by the Lender pay to or as directed by the Lender and indemnify the Lender against all costs, losses, charges, expenses, liabilities, damages, fees and disbursements (including all reasonable costs on a solicitor and own client basis) paid or incurred by the Lender of or incidental to:
(i) any breach of or default under this Agreement by the Borrower (including the reasonable fees of all professional consultants properly incurred by the Lender in consequence of or in connection with any such breach or default);
(ii) the exercise or attempted exercise of any right power privilege authority or remedy of the Lender under or by virtue of this Agreement; and
(iii) all taxes (excluding any income tax payable by the Lender) outgoings penalties fines demands charges or costs stamp and other duties and assessment imposed by any court or by any Federal State or Municipal statutory or other authority or otherwise (including any related bank charges financial institutions duties and debits taxes) directly or indirectly upon this Agreement or any receipt or payment under this Agreement.
5. REPAYMENT
(a) The Borrower must repay the Loan in monthly instalments in arrears as from the Drawdown Date (“Instalments”).
(b) The Borrower must repay the Loan in monthly instalments in arrears as from the Drawdown Date (“Instalments”).
(c) In the event that the Borrower fails to pay an Instalment on the due date and such failure continues for more than 5 Business Days, interest shall be payable on the amount of the overdue or unpaid Instalment at the Default Interest Rate.
6. NO SET-OFF OR COUNTERCLAIM
(a) Notwithstanding any term whether express or implied in this Agreement or any rule of law or course of conduct to the contrary payments under this Agreement must be made by the Borrower without set-off or counterclaim and subject to clause 6(b) free and clear of and without any deductions whatsoever.
(b) All payments to be made under this Agreement whatever their nature must to the full extent permitted by Law be made by the Borrower without any deduction for or on account of any income or other taxes, imposts, deductions or other withholdings of any kind (hereinafter collectively referred to as "withholdings").
(c) If the Borrower is compelled by Law to deduct any withholdings from any payment, the Borrower must ensure that the deduction made does not exceed the minimum legal liability in that regard.
(d) The Borrower must also pay to the Lender whatever additional amount is necessary (after allowing for the avoidance of doubt for withholdings from that amount) to ensure the Lender receives the full amount of the payment due under this Agreement as if the withholdings had not been deducted.
7. REPRESENTATIONS AND WARRANTIES
7.1 Borrower's representations and warranties
The Borrower represents and warrants to the Lender that:
(a) no breach: except as disclosed in writing to the Lender and dispensed with in writing by the Lender neither the execution nor the performance of the Agreement will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any government judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation (whether imposed by statute, decree, rule or regulation) on the Borrower's right or ability to exercise such powers to be exceeded;
(iii) conflict with or result in any breach of or require any consent or approval under any mortgage, agreement or other undertaking or instrument to which the Borrower is a party or which is binding upon the Borrower or any of the Borrower's assets;
(iv) result in the enforcement or creation of a mortgage, charge, lien or other encumbrance over any of the Borrower's assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise as the case may be to be exceeded;
(b) no existing default: except as disclosed in writing to the Lender and dispensed with in writing by the Lender the Borrower is not in default or difficulty under any deed agreement or other document or obligation to which it is a party or by which it is bound or in respect of any financial commitment or obligation (including obligations under guarantees or other contingent liabilities) which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement;
(c) no default: no Event of Default or event which with the giving of notice or the lapse of time or both would be an Event of Default has occurred or is continuing to subsist;
(d) no litigation: except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before or of any court or governmental authority or agency or other tribunal have to the knowledge of the Borrower been initiated or threatened against the Borrower or any of the Borrower's assets which would or might have a material adverse effect upon the business assets or financial condition of the Borrower;
(e) no set-off or counterclaim: the Borrower does not have and will not during the currency of this Agreement have any right of set-off or counterclaim or any right to rescind or any other claim with respect to this Agreement by way of cross action against the Lender;
(f) accounts: all of the most recent financial information provided by [her/him] to the Lender provides a true and fair view of the financial position of the Borrower;
(g) trustee: the Borrower is not a trustee of any trust; and
(h) Purpose: the Loan shall be applied solely for the Purpose.
7.2. Deemed Repetition
The representations and warranties set out in this clause 7 will be deemed to be repeated (updated as appropriate) on the date of payment of monies made pursuant to this Agreement.
8. UNDERTAKINGS BY BORROWER
For so long as any part of the Loan or other monies payable to the Lender under this Agreement remains outstanding, the Borrower undertakes with the Lender as follows:
(a) negative pledge: not without the Lender's prior written consent to create or allow to exist any encumbrance to secure any indebtedness upon any of the present or future property undertaking assets or revenues of the Borrower;
(b) further assurances: to execute at the expense of the Borrower all assurances and other things as are reasonably required or requested at any time and from time to time by the Lender for giving effect to and the full benefit of the representations and warranties contained or implied in this Agreement in favour of the Lender or to protect the Lender's rights powers and remedies under this Agreement;
(c) compliance with requirements: to comply with the requirements of all applicable Laws of any person, non-compliance with which would or might in the Lender's opinion have a material adverse effect on the Borrower's ability to comply with its obligations under this Agreement;
(d) Event of Default: to immediately notify the Lender of the occurrence or potential of any Event of Default or event which with the giving of notice or the lapse of time or both would become an Event of Default of which the Borrower becomes aware which either would or might in the Lender's opinion adversely effect the ability of the Borrower fully and promptly to perform its obligations under this Agreement;
(e) other indebtedness: not without the Lender's prior written consent acting reasonably incur any indebtedness or engage in any other activity;
(f) insurance: to keep his/her assets or undertaking insured and to ensure that any major asset leased by it is insured against such risks and in such amounts as would prudently be insured against by a person carrying on business similar to the Borrower and to deliver to the Lender upon request by the Lender written details of such insurances and appropriate evidence that all such insurances are in full force and effect and that all relevant premiums have been paid;
(g) disposal of assets: to ensure that no assets of or under the control of the Borrower are transferred or otherwise alienated to any person otherwise than in the ordinary course of business for proper market value in money or money's worth;
(h) litigation: to immediately notify the Lender of any litigation or administrative or other proceedings initiated or threatened against the Borrower or any of the Borrower's assets; and
(i) change of circumstances: to immediately notify the Lender of any material event or change in the Borrower's circumstances the effect of which either would or might render any representation or warranty made in this Agreement untrue or incorrect in any respect
9. DEFAULT AND TERMINATION
9.1 Consequences of Default
If any of the events described in clause 9.2 occurs the Loan together with all interest accrued on the Loan and not then paid and all other amounts payable under this Agreement and unpaid shall at the option of the Lender and notwithstanding any delay or previous waiver of the right to exercise that option become immediately due and payable upon demand by the Lender.
9.2 Events of Default
Each of the following events is an event of default:
(a) default: if the Borrower breaches or fails to perform or observe any of the provisions of this Agreement on the part of the Borrower to be performed or observed and, if capable of remedy, such default continues for more than 10 Business Days after notice from the Lender requiring the Borrower to remedy the default unless the non-performance or non-observance has been waived or excused by the Lender in writing;
(b) bankruptcy: if an application for bankruptcy of the Borrower is presented and the Borrower cannot within 10 Business Days reasonably satisfy the Lender that such application is frivolous or vexatious or an order is made for the bankruptcy;
(c) unemployment: if the Borrower becomes unemployed; or
(d) incorrect application of Loan: if the Borrower fails to apply any part of the Loan for the Purpose.
9.3 Acceptance of Money
The Lender may exercise its rights under clause 9.1:
(a) notwithstanding acceptance of any part of any of the amounts payable under this Agreement after the occurrence of any Event of Default;
(b) notwithstanding the occurrence of any previous or other Event of Default; or
(c) without the necessity for any notice to or of any consent or concurrence on the part of the Borrower or any other person.
10. APPLICATION OF MONEY
All monies received by the Lender under or by virtue of clause 9.1 will be applied in the following order and manner:
(a) first in payment of all reasonable costs charges and expenses properly incurred in or incidental to the exercise or performance or attempted exercise or performance of any of the powers or authorities conferred on the Lender by this Agreement or otherwise arising in relation to this Agreement;
(b) secondly in or towards payment of such other properly incurred costs charges and expenses in relation to the enforcement of this Agreement as the Lender thinks fit to pay;
(c) thirdly in or towards payment to the Lender of interest on the Loan; or
(d) fourthly in or towards repayment to the Lender of the Loan; and
(e) fifthly in or towards payment to or at the direction of the Lender of any other amount or amounts payable by the Borrower under this Agreement.
The surplus if any will not carry interest and will be paid to the Borrower.
11. PROTECTION OF LENDER
11.1 Lender not liable for Losses
The Lender is not answerable for any involuntary losses or irregularities which may occur in or by the exercise or non-exercise of any of the powers rights or remedies conferred on the Lender by this Agreement.
11.2 Discretion on Consent
In any case where under or pursuant to this Agreement the doing or execution of any act matter or thing by the Borrower is dependent upon the consent or approval of the Lender such consent or approval may be given conditionally or unconditionally or may be withheld by the Lender in its absolute unfettered discretion unless this Agreement expressly provides otherwise.
11.3 Borrower's Risk
Whenever the Borrower is obliged or required under this Agreement to do or effect any act matter or thing then the doing of such act matter or thing will unless this Agreement expressly provides otherwise be at the sole risk and expense to the Borrower.
11.4 Illegality and Impossibility
If after the date of this Agreement:
(a) any order of any court of competent jurisdiction; or
(b) any change in or extension of or application of any applicable law or regulation whether or not having the force of law; or
(c) the official interpretation of any applicable law or regulation by any governmental or other authority monetary or banking agency or central bank charged with the administration of that law or regulation makes it unlawful or impossible, in the Lender's opinion, for the Lender to give effect or maintain its obligations under this Agreement, the Lender will by notice to the Borrower declare that the Lender's obligations to maintain the Loan is terminated immediately and in such case the Borrower must then, within the lesser of thirty (30) Business Days of receiving that notice and the period of any maximum grace allowed by any relevant Law for compliance by the Lender with its obligations, repay the Loan together with all interest accrued on the Loan and not then paid and all other amounts payable under this Agreement and unpaid without premium or penalty.
12. POWER OF ATTORNEY
The Borrower irrevocably appoints:
(a) the Lender and its successors and assigns; and
(b) every director of the Lender, severally, the attorney of the Borrower with power at the expense of the Borrower at any time and from time to time
(c) after the occurrence of an Event of Default or an event which with the giving of notice or the lapse of time or both would be an Event of Default; or
(d) after the Borrower has failed to comply with any of the Borrower's obligations under this Agreement or under any agreement or instrument required under or for the purposes of this Agreement or under any agreement or instrument collateral to this Agreement or to which this Agreement is collateral upon request by the Lender,to do all acts and things and to execute all documents as may in the Lender's opinion be reasonably necessary or desirable or expedient to give effect to any right or power conferred on the Lender by this Agreement.
13. GENERAL
13.1 Non-merger
None of the terms or conditions of this Agreement nor any act matter or thing done under or by virtue of or in connection with this Agreement will operate as a merger of any rights and remedies of the Lender in or under this Agreement or otherwise. All such rights and remedies of the Lender will continue in full force and effect.
13.2 Reimbursement of Lender
To the extent permissible at Law, the Borrower must immediately upon demand, pay to the Lender an amount equivalent to any monies paid by the Lender in respect of any liability imposed on the Lender under or by virtue of this Agreement provided that the Borrower shall not be liable for all proper income tax or any other tax or impost charged or levied against the Lender as a result of any derivation of income or profit by the Lender resulting from this Agreement.
13.3 Costs
Each party shall bear their own costs of drafting, negotiating and signing this Agreement, unless otherwise stated in this Agreement.
13.4 Assignment
(a) This Agreement is binding on and operates for the benefit of both the Borrower and the Lender and their respective successors and assigns except that the Borrower must not assign this Agreement or any of its rights or obligations under this Agreement without the Lender's prior written consent.
(b) The Lender may at any time assign charge or otherwise deal with its rights under this Agreement.
(c) Where the Lender assigns its rights under this Agreement, the Borrower must do all acts and things and execute all documents as may in the Lender's opinion be reasonably necessary or desirable or expedient to effect the assignment at the reasonable cost of the Lender.
13.5 Statement by Lender
(a) A statement in writing issued to the Borrower by the Lender stating the amount due or owing by the Borrower will be prima facie evidence of the facts so stated (“Statement”).
(b) The Lender agrees to issue a Statement to the Borrower on a six month basis.,p>
13.6 Severability and Survival of Covenants
(a) If any provision of this Agreement is or at any time becomes prohibited by or unlawful under any applicable Law or otherwise becomes void or unenforceable it will be severed from this Agreement and rendered ineffective so far as is possible without modifying the remaining provisions of this Agreement.
(b) The remaining provisions will to the extent permitted by the relevant Law continue in full force and effect. Where however the provisions of any such applicable Law may be waived, they are waived by the Borrower and the Lender to but not beyond the full extent permitted by the Law to enable this Agreement to constitute a valid and binding obligation enforceable in accordance with its terms.
(c) Any prohibited unlawful void or unenforceable provision will be replaced immediately by an allowable lawful effective and enforceable provision which so far as possible achieves the same economic benefit or burden for the Lender and the Borrower as the prohibited unlawful void or unenforceable provision was intended to achieve.
(d) All obligations of the Borrower under this Agreement will survive the expiration or termination of this Agreement to the extent required for their full observance and performance.
(e) Nothing in this Agreement seeks to oust the provisions of the NCC to the extent that such provisions apply to this Agreement.
(f) If the Purpose does not attract the NCC, the Borrower agrees, if so requested by the Lender, to sign a business purpose declaration.
13.7 Variation
A provision of or a right created under this Agreement may not be varied, except in writing signed by the parties.
13.8 Notices
(a) A notice or other communication given under or about this Agreement must be in English and in writing and delivered or sent by prepaid post, facsimile or email to the address, facsimile number or email address of the addressee as notified in writing by the addressee to the sender from time to time.
(b) A notice or other communication given under or about this Agreement is taken to be received:
(i) if hand delivered, on delivery;
(ii) If sent by prepaid post, 5 days after posting; or
(iii) if sent by facsimile or email, when the sender’s facsimile or email system confirms the notice or other communication has been transmitted in its entirety to the facsimile number or email address of the addressee, as the case maybe.
13.9 No waiver
(a) No failure or delay by the Lender to exercise any power right or remedy under this Agreement will operate as a waiver of that power right or remedy nor will any single or partial exercise of any power right or remedy under this Agreement preclude any other or further exercise of that power right or remedy.
(b) The Lender will only be taken to have waived any power right or remedy under this Agreement including (without limitation) its rights in respect of any Event of Default to the extent that the power right or remedy has been expressly waived in writing by a director secretary or other officer of the Lender whose title includes the word 'manager' irrespective of any previous waiver of any other breach of the same or any other covenant or provision of this Agreement or any other agreement.
(c) The powers rights and remedies provided under this Agreement to the Lender are not exclusive of any powers rights and remedies provided at Law or in equity.
13.10 Counterparts
This Agreement may be executed by more than one counterpart and all of those counterparts taken together constitute one and the same instrument.
13.11 Electronic Transaction
This Agreement may be offered, accepted, signed, or executed electronically or by facsimile and all those electronic communications and/or facsimiles are taken together to constitute an offer, acceptance, signature, or the execution of this Agreement.
13.12 Governing Law
This Agreement will be construed in accordance with the law of New South Wales. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales and any courts which may hear appeals from them.