Facility Agreement Continuing Credit Facility - Line of Credit Terms & Conditions

Transcription

1 Facility Agreement Continuing Credit Facility - Line of Credit Terms & Conditions Version 2, March 2013

2 Contents Section 1 Section 2 LINE OF CREDIT....1 DRAWDOWNS... 1 Section 3 REPAYMENTS Section 4 INTEREST. 1 Section 5 WARRANTIES Section 6 DEFAULT When there is a default Our rights on default Default Interest Enforcement Expenses.. 2 Section 7 GENERAL MATTERS Lenders certificate Assigning the Facility Agreement Consumer legislation and independent advice Corrections Notices Statements Joint & several liability Commission Variation Privacy consent Section 8 POWER OF ATTORNEY.3 Section 9 Section 10 INTEREST ON JUDGEMENT..3 DEFINED TERMS..3 ACKNOWLEDGEMENTS...4

3 1. Line of Credit (a) Subject to the terms set out in this Facility Agreement we agree to make the Credit Facility available to you. (b) We may withdraw the Credit Facility or reduce the Credit Limit at any time without your consent. (c) The Credit Limit is set out in the Schedule. The Credit Limit available to you at any time will be reduced by the amount of the Outstanding Balance on any given day. (d) You may terminate the Credit Facility at any time by paying the Outstanding Balance together with accrued interest and applicable fees and charges. 2. Draw Downs (a) In order to make a draw down under the Credit Facility, you must complete and deliver a Drawdown Application Form to us electronically via facsimile or or in person. (b) Where you are not in breach of this Facility Agreement and we are satisfied that there has been no material change to your personal or financial circumstances, we will make available to you the amount set out in the Drawdown Application Form, provided that the amount in the Drawdown Application Form and the current Outstanding Balance does not exceed the Credit Limit. (c) At the time of the drawdown, you must pay the Drawdown Fee set out in the Schedule 3. Repayments (a) You agree to make the Repayments in the manner and at the times set out in the Schedule. You must sign any forms required by us to effect Repayments. (b) You must not exceed the Credit Limit at any time. If you exceed the Credit Limit, you must immediately repay the excess. (c) The amount of each Repayment will not include any applicable direct debit fees, or similar taxes or charges. (d) If any Repayment is due to be made on a day which is not a business day, the Repayment must be made on the next business day. (e) If any direct debit or cheque used for Repayment is dishonoured, the Repayment will be treated as not having been made, and interest will continue to accrue on the unpaid daily balance until actual payment is received by us. You must pay any costs incurred by us as a result of a dishonoured payment. (f) We can apply any payment or other credit to any amount that you owe us or a Group Entity (including under any other agreement you have with us or a Group Entity) in any order we determine. (g) If you have more than one account with us and you make a payment without telling us in writing how the payment is to be applied, we can apply it to any one or more of the accounts in any way we think fit. (h) We do not pay interest on any credit balance in your account. (i) In addition to the Repayments, you agree to pay: (i) the Fees and Charges out in the Schedule and any other government charges which are levied by a Government Agency in respect of this Facility Agreement; (ii) interest in accordance with clause 4; (iii) Default Interest in accordance with clause 5.3 (if applicable); and (iv) any enforcement expenses in accordance with clause5.4 (if applicable). (j) You may pay out this Facility Agreement prior to the relevant Repayment Date by paying all costs and expenses and accrued interest. 4. Warranties You warrant to us that: (a) you have read the term of this Facility Agreement together with the Schedule; (b) all the information provided by you to us is correct, complete and is not misleading; and (c) you will advise us if your personal circumstances change which includes for the avoidance of doubt, your address, address your telephone number and your employment terms. 5. Default 5.1. When there is default You are in default of this Facility Agreement if any of the following events happen: (a) there is default of any term or condition of this Facility Agreement or any other agreement that you have with us or a Group Entity; (b) you fail to pay any person (including us and/or other banks etc) any money by the due date; (c) any representation or warranty made by you to our agents or us proves to be untrue or misleading; (d) you become bankrupt or are jailed, or a trustee in bankruptcy, guardian, controller, administrator, receiver, receiver and manager, liquidator or provisional liquidator is appointed to you or to any guarantor or both to administer your affairs or any guarantor s affair or both or proceedings are commenced or a resolution proposed or passed to do so; (e) you breach any material undertaking given at any time to us; (f) you or any guarantor or any party die or become of unsound mind or are arrested and charged with any offence carrying a maximum period of imprisonment exceeding 3 months; (g) you are a partnership or company and a change occurs in the constitution of the partnership or company without our consent; (h) you are a company and a change of control occurs (which may include a change in shareholding or directorship); and (i) you are a trustee of a trust and you, without our written consent, cease to be the sole trustee, you do or omit to do anything in breach of the terms of the trust, any capital of the trust is distributed, the trust is wound up or terminated or steps are taken to do so or an application is made to, or an order sought from, any court concerning the trust assets or administration of the trust.

4 5.2. Our rights on default At any time after default occurs we can take any of the following actions after giving ay notice required by law and, if required by law, the period specified in the notice has passed and the default has not been rectified: (a) demand and require immediate payment of any money due under this Facility Agreement; (b) require immediate payment of the entire Outstanding Balance owing under this Facility Agreement; (c) we may report you to a credit reporting agency which may affect your credit rating; and (d) we can take action even if we do not do so promptly after the default occurs so long as the default remains unrectified and we have given appropriate notice; (e) The fact that we don t take immediate action to exercise any of our rights does not mean that we have waived our rights or varied them. As long as we have served any notice required by law, we can take action against you at a time that suits us. Any attempt by us to negotiate a repayment plan is also not a waiver of our rights under this contract Default Interest We may charge Default Interest where: (a) you fail to make a Repayment on its due date in which case, Default Interest is payable on the amount that is overdue for each day that the overdue amount is late; (b) you exceed the Credit Limit, in which case, Default Interest is payable on the amount by which the Credit Limit is exceeded. (c) Interest is calculated at the end of each day and is debited to your account monthly in arrears. Interest charges, once debited to your Credit Facility become part of the Outstanding Balance Enforcement Expenses Enforcement expenses may become payable under this Facility Agreement if you default. You must pay on demand and we may debit your account with our costs in connection with any exercise or on exercise of rights arising from any default, including: (a) legal costs and expenses on a full indemnity basis or solicitor and own client basis, whichever is higher; and (b) our reasonable internal costs. 6. General Matters 6.1. Lender s certificate A certificate signed by or on behalf of us as to an amount payable to us is conclusive and binding on you in the absence of manifest error. In providing any certificate, we will act reasonably Assigning the Facility Agreement (a) we may assign, novate or otherwise deal with its rights under this Facility Agreement in any way we wish. You must sign anything and do anything we reasonably require to enable any dealing with this Facility Agreement, provided that it does not change your obligations under this Facility Agreement in any way; (b) you cannot assign this Facility Agreement or any interest you have in it without our prior written consent Consumer legislation and independent advice To the extent that this Facility Agreement is regulated under consumer legislation (eg the National Credit Code) any provisions which do not comply with that legislation have no effect, and to the extent necessary, this Facility Agreement is to be read so it does not impose obligations prohibited by that legislation. We encourage you to obtain independent legal advice and independent financial advice Corrections You authorise us to rectify any error made in processing or calculation any debit or credit made to the loan account. We may adjust debits and creditors to the Credit Facility account so as to accurately reflect legal obligations under this agreement. If we do this, we may make consequential adjustments (including to interest charges) Notices (a) The addresses for notices, in respect of you, are set out in the Schedule and the addresses for notices in respect to Us are set out in the commencement of the Schedule or the last notified address; (b) Either party may give a notice, information or document by: (i) delivering it to the postal address, in which case the notice, information or document is taken to have been received on its date or the date it would have been received in the ordinary course of the post, whichever is later; (ii) sending it via facsimile number in which case the notice, information or document is taken to have been received on the date it was faxed; (iii) sending electronically to the address in which case the notice, information or document is taken to have been received on the day it enters it to your information system; (c) If you have entered an address in the Schedule, you consent to us sending you notices, information or documents electronically and we are not required to give you paper copies. You should regularly check your electronic communications to see if you have received any communications from us. You are free to revoke your consent at any time Statements We will provide you with statements as set out in the Schedule, unless there is no Outstanding Balance and you have not drawn down under the Credit Facility during the previous statement period Joint and several liability If there are two or more of you, each of you is individually liable, and all of you are jointly and severally liable. References to a person include companies and trusts and any other kind of body. Singular words include plural words and vice versa Commission You are solely responsible for paying any commission charged by a broker, introducer or originator (Loan Broker) relating to this Facility Agreement other than any commission set out in the Schedule. You hereby direct us to deduct from the Facility Agreement, such commission and forward payment directly to the Loan Broker on your behalf Variation We may by giving 30 days notice, vary any of the terms of this Facility Agreement, including the interest rate Privacy consent We may collect and use your personal information for arranging or providing credit, enforcing out rights under this Facility Agreement, insuring credit and for direct marketing of products and services offered by us or any organization we are affiliated

5 with or represent. You have the right to request not to receive direct marketing material. The information provided by you will be held by us. You can gain access to the information by contacting us. You agree that we, any mortgage broker, mortgage originator, mortgage manager, and any other person or company who at any time provides or has any interest in the credit, and who may be overseas entities, can do any of the following at any time: (a) seek and use commercial credit information about you to assess an application for consumer credit or commercial credit; (b) seek and use consumer credit information about you to assess an application for commercial credit or consumer credit; (c) seek and use a credit report about you provided by a credit reporting agency to collect overdue payments from you or otherwise provide your personal information to an external agency for the purposes of collecting overdue payments from you; (d) provide information to a mortgage insurer to assess the risk of providing mortgage insurance or to assess the risk of default; (e) seek from and use or give to another credit provider any information about your account, credit worthiness, credit standing, credit history or credit capacity. In particular, we may provide an opinion on you; (f) seek from and use or give to any mortgage broker, mortgage originator, mortgage manager, financial consultant, accountant, lawyer, or other adviser acting in connection with any financing provided or proposed to be provided to you any personal information, consumer or commercial credit information; (g) give to a credit reporting agency personal or commercial information about you. The information may include identity particulars; the fact that credit has been applied for and the amount; the fact that we are a current credit provider to you; that where payments have become overdue more than 60 days, the fact that action is commenced; advice that payments are no longer overdue; advice that cheques drawn by you in excess of $100 have been dishonored more than once; in specified circumstances that in our opinion you have committed a serious credit infringement; and the credit provided to you by us has been paid or other discharged; (h) disclose any report or personal information about you to another person in connection with funding financial accommodation by means of an arrangement involving securitisation, or any other proposed transfer of or proposed dealing with your Facility Agreement; (i) provide information to any person who proposes to guarantee or has guaranteed repayment of any credit provided to you; and (j) disclose personal and credit information about you as required by law, or to organisations involved in providing credit to you, or any associate, or contractor of ours (including, for example, stationery printing houses, mail houses, lawyers, accountants), people considering acquiring or taking an interest in our business, or our assets, or any tribunal or court inquiring into any transaction we have with you or any person who deal with those transactions. If you do not provide personal information, we may be unable to arrange or provide credit for you. 7. Power of Attorney For valuable consideration, you appoint us or its representatives to (at your cost) do all things and sign all documents to undertake and complete your obligations under this Facility Agreement, which you have failed to do or to otherwise give effect to the matters set out in this Facility Agreement. 8. Interest on judgment If a liability under this Facility Agreement becomes merged in a judgment or order then you must as an independent obligation pay interest to us on the amount of that liability from the date it becomes payable until it is paid both before and after the judgment or order despite the bankruptcy or insolvency of you at a rate being the higher of the rate payable under the judgment, order, bankruptcy, or insolvency and the rate payable under this Facility Agreement. 9. Defined terms (a) Act means the National Consumer Credit Protection Act; (b) Credit Facility means the finance facility up to the Credit Limit, granted to you in this Facility Agreement; (c) Group Entity means a related body corporate of Money 3; (d) Outstanding Balance means the amount that you have drawn down under the Credit Facility plus any interest accrued on any other amounts debited to your Credit Facility; and (e) Schedule means the schedule relevant to your Credit Facility..

6 ACKNOWLEDGMENT You acknowledge the terms and conditions of this agreement including the schedule, and agree to be bound by the terms and conditions of this agreement. BEFORE YOU SIGN * READ THIS CONTRACT DOCUMENT so that you know exactly what contract you are entering into and what you will have to do under the contract. * You should also read the information statement: "THINGS YOU SHOULD KNOW ABOUT YOUR PROPOSED CREDIT CONTRACT". * Fill in or cross out any blank spaces. * Get a copy of this contract document. * Do not sign this contract document if there is anything you do not understand. IMPORTANT THINGS YOU MUST KNOW * Once you sign this contract document, you will be bound by it. However, you may end the contract before you obtain credit, or a card or other means is used to obtain goods or services for which credit is to be provided under the contract, by telling the credit provider in writing, but you will still be liable for any fees or charges already incurred. * You do not have to take out consumer credit insurance unless you want to. However, if this contract says so, you must take out insurance over any mortgaged property that is used as security, such as a house or car. * If you take out insurance, the credit provider cannot insist on any particular insurance company. * If this contract document says so, the credit provider can vary the annual percentage rate (the interest rate), the repayments and the fees and charges and can add new fees and charges without your consent. * If this contract document says so, the credit provider can charge a fee if you pay out your contract early

7 If the borrower is a company, or if 50% or more of this loan is used for business or investment purposes (excluding investment in residential property), the loan will not be regulated by the National Credit Code despite any statement that the National Credit Code applies to this loan. The information statement below will only apply to you if your loan is regulated by the National Credit Code. This statement is prescribed by law. INFORMATION STATEMENT THINGS YOU SHOULD KNOW ABOUT YOUR PROPOSED CREDIT CONTRACT This statement tells you about some of the rights and obligations of yourself and your credit provider. It does not state the terms and conditions of your contract. If you have any concerns about your contract, contact your credit provider and, if you still have concerns, your credit provider's external dispute resolution scheme, or get legal advice. 1. How can I get details of my proposed credit contract? THE CONTRACT Your credit provider must give you a pre-contractual statement containing certain information about your contract. The pre-contractual statement, and this document, must be given to you before- your contract is entered into; or you make an offer to enter into the contract, whichever happens first. 2. How can I get a copy of the final contract? If the contract document is to be signed by you and returned to your credit provider, you must be given a copy to keep. Also, the credit provider must give you a copy of the final contract within 14 days after it is made. This rule does not, however, apply, if the credit provider has previously given you a copy of the contract document to keep. If you want another copy of your contract write to your credit provider and ask for one. Your credit provider may charge you a fee. Your credit provider has to give you a copy - within 14 days of your written request if the original contract came into existence 1 year or less before your request; or otherwise within 30 days of your written request. 3. Can I terminate the contract? Yes. You can terminate the contract by writing to the credit provider so long as you have not obtained any credit under the contract; or a card or other means of obtaining credit given to you by your credit provider has not been used to acquire goods or services for which credit is to be provided under the contract. However, you will still have to pay any fees or charges incurred before you terminated the contract. 4. Can I pay my credit contract out early? Yes. Pay your credit provider the amount required to pay out your credit contract on the day you wish to end your contract. 5. How can I find out the payout figure? You can write to your credit provider at any time and ask for a statement of the payout figure as at any date you specify. You can also ask for details of how the amount is made up. Your credit provider must give you the statement within 7 days after you give your request to the credit provider. You may be charged a fee for the statement. 6. Will I pay less interest if I pay out my contract early? Yes. The interest you can be charged depends on the actual time money is owing. However, you may have to pay an early termination charge (if your contract permits your credit provider to charge one) and other fees. 7. Can my contract be changed by my credit provider? Yes, but only if your contract says so.

8 8. Will I be told in advance if my credit provider is going to make a change in the contract? That depends on the type of change. For example- you get at least same day notice for a change to an annual percentage rate. That notice may be a written notice to you or a notice published in a newspaper. you get 20 days advance written notice for- a change in the way in which interest is calculated; a change in credit fees and charges; or any other changes by your credit provider; except where the change reduces what you have to pay or the change happens automatically under the contract. 9. Is there anything I can do if I think that my contract is unjust? Yes. You should first talk to your credit provider. Discuss the matter and see if you can come to some arrangement. If that is not successful you may contact your credit provider s external dispute resolution scheme. External dispute resolution is a free service established to provide you with an independent mechanism to resolve specific complaints. Your credit provider s external dispute resolution provider is the Credit Ombudsman Service Limited and can be contacted on or , by fax at , by at info@cosl.com.au or in writing to PO Box A252 SYDNEY SOUTH NSW Alternatively, you can go to court. You may wish to get legal advice, for example from your community legal centre or Legal Aid. You can also contact ASIC, the regulator, for information on or through ASIC s website at Do I have to take out insurance? INSURANCE Your credit provider can insist you take out or pay the cost of types of insurance specifically allowed by law. These are compulsory third party personal injury insurance, mortgage indemnity insurance or insurance over property covered by any mortgage. Otherwise, you can decide if you want to take out insurance or not. If you take out insurance, the credit provider cannot insist that you use any particular insurance company. 11. Will I get details of my insurance cover? Yes, if you have taken out insurance over mortgaged property or consumer credit insurance and the premium is financed by your credit provider. In that case the insurer must give you a copy of the policy within 14 days after the insurer has accepted the insurance proposal. Also, if you acquire an interest in any such insurance policy which is taken out by your credit provider then, within 14 days of that happening, your credit provider must ensure you have a written notice of the particulars of that insurance. You can always ask the insurer for details of your insurance contract. If you ask in writing your insurer must give you a statement containing all the provisions of the contract. 12. If the insurer does not accept my proposal, will I be told? Yes, if the insurance was to be financed by the credit contract. The insurer will inform you if the proposal is rejected. 13. In that case, what happens to the premiums? Your credit provider must give you a refund or credit unless the insurance is to be arranged with another insurer. 14. What happens if my credit contract ends before any insurance contract over mortgaged property? You can end the insurance contract and get a proportionate rebate of any premium from the insurer. MORTGAGES 15. If my contract says I have to give a mortgage, what does this mean? A mortgage means that you give your credit provider certain rights over any property you mortgage. If you default under your contract, you can lose that property and you might still owe money to the credit provider. 16. Should I get a copy of my mortgage? Yes. It can be part of your credit contract or, if it is a separate document, you will be given a copy of the mortgage within 14 days after your mortgage is entered into. However, you need not be given a copy if the credit provider has previously given you a copy of the mortgage document to keep.

9 17. Is there anything that I am not allowed to do with the property I have mortgaged? The law says you cannot assign or dispose of the property unless you have your credit provider s, or the court s, permission. You must also look after the property. Read the mortgage document as well. It will usually have other terms and conditions about what you can or cannot do with the property. 18.What can I do if I find that I cannot afford my repayments and there is a mortgage over property? See the answers to questions 22 and 23. Otherwise you may- if the mortgaged property is goods - give the property back to your credit provider, together with a letter saying you want the credit provider to sell the property for you; sell the property, but only if your credit provider gives permission first; OR give the property to someone who may then take over the repayments - but only if your credit provider gives permission first. If your credit provider won t give permission, you can contact their external dispute resolution scheme for help. If you have a guarantor, talk to the guarantor who may be able to help you. You should understand that you may owe money to your credit provider even after mortgaged property is sold. 19. Can my credit provider take or sell the mortgaged property? Yes, if you have not carried out all of your obligations under your contract. 20. If my credit provider writes asking me where the mortgaged goods are, do I have to say where they are? Yes. You have 7 days after receiving your credit provider s request to tell your credit provider. If you do not have the goods you must give your credit provider all the information you have so they can be traced. 21. When can my credit provider or its agent come into a residence to take possession of mortgaged goods? Your credit provider can only do so if it has the court s approval or the written consent of the occupier which is given after the occupier is informed in writing of the relevant section in the National Credit Code. 22. What do I do if I cannot make a repayment? GENERAL Get in touch with your credit provider immediately. Discuss the matter and see if you can come to some arrangement. You can ask your credit provider to change your contract in a number of ways: to extend the term of the contract and reduce payments; or to extend the term of your contract and delay payments for a set time; or to delay payments for a set time. 23. What if my credit provider and I cannot agree on a suitable arrangement? If the credit provider refuses your request to change the repayments, you can ask the credit provider to review this decision if you think it is wrong. If the credit provider still refuses your request you can complain to the external dispute resolution scheme that your credit provider belongs to. Further details about this scheme are set out below in question Can my credit provider take action against me? Yes, if you are in default under your contract. But the law says that you cannot be unduly harassed or threatened for repayments. If you think you are being unduly harassed or threatened, contact the credit provider s external dispute resolution scheme or ASIC, or get legal advice. 25. Do I have any other rights and obligations? Yes. The law will give you other rights and obligations. You should also READ YOUR CONTRACT carefully.

10 IF YOU HAVE ANY COMPLAINTS ABOUT YOUR CREDIT CONTRACT, OR WANT MORE INFORMATION, CONTACT YOUR CREDIT PROVIDER. YOU MUST ATTEMPT TO RESOLVE YOUR COMPLAINT WITH YOUR CREDIT PROVIDER BEFORE CONTACTING YOUR CREDIT PROVIDER S EXTERNAL DISPUTE RESOLUTION SCHEME. IF YOU HAVE A COMPLAINT WHICH REMAINS UNRESOLVED AFTER SPEAKING TO YOUR CREDIT PROVIDER YOU CAN CONTACT YOUR CREDIT PROVIDER S EXTERNAL DISPUTE RESOLUTION SCHEME OR GET LEGAL ADVICE. EXTERNAL DISPUTE RESOLUTION IS A FREE SERVICE ESTABLISHED TO PROVIDE YOU WITH AN INDEPENDENT MECHANISM TO RESOLVE SPECIFIC COMPLAINTS. YOUR CREDIT PROVIDER S EXTERNAL DISPUTE RESOLUTION PROVIDER IS THE CREDIT OMBUDSMAN SERVICE LIMITED AND CAN BE CONTACTED ON: BY PHONE: OR , BY FAX: , BY INFO@COSL.COM.AU OR IN WRITING TO: PO BOX A252 SYDNEY SOUTH NSW PLEASE KEEP THIS INFORMATION STATEMENT. YOU MAY WANT SOME INFORMATION FROM IT AT A LATER DATE. MONEY3 Registered Office Address: Level 1, 48 High Street Northcote VIC 3070 Head Office Address: 40 Graduate Road Bundoora, VIC, 3083 Phone: Fax: info@money3.com.au Web: Hotline: