Terms and Conditions
1 Availability of the Facility
Avanti agrees, at the request of the Borrower, to make the Advance by payment to the Dealer of the Loan Amount on the Date of Advance.
2.1 NO FEES
3.1 No interest Charge
No interest, other than default interest payable under clause 6.2 is payable in respect of the Advance.
4.1 Payments by Borrower
The Borrower will Deposit: pay the deposit to the Dealer on or before the Date of Advance; and The Payments make the required number of regular monthly payments of the payment amount to Avanti as specified in the section headed “The Payments”.
4.2 Method of making the Payments
All payments must be made by Direct Debit Authority drawn on the Borrower’s bank account. On or before the Date of Advance, the borrower must deliver a completed and signed Direct Debit Authority to Avanti.
The making of the Advance is conditional upon Avanti receiving the Direct Debit Authority prior to the date of Advance. If the Direct Debit Authority is not provided by that date, Avanti may delay making the advance until it has received the Direct Debit Authority.
This Facility is secured to Avanti by the security interest granted by the Borrower to as specified in this Agreement.
5.2 Registration of Financing Statements.
On or before the date of Advance, Avanti will register a financing statement on the Personal Property Securities Register against the Borrower against the Art Work as a purchase money Security interest.
5.3 Waiver of Verification Statement
The Borrower waives its right to receive a copy of any verification statement received by the Avanti relating to actions taken by Avanti under clause 5.2
5.4 Co-operation of Borrower
The Borrower must procure execution of any document and provide all information required by Avanti which is necessary or desirable for it to perform its obligations under this clause 5 and to ensure that any security held by Avanti is continuously perfected.
5.5 Rights and Powers under security Interest
The security interest granted by this Agreement incorporates all of the covenants, conditions and powers implied in mortgages over goods by Part 2 of Schedule 2 of the Property Law Act 2007. In addition, Avanti has all the rights and powers provided to a secured party under the Personal Property Securities Act 1999
In addition to the insurance required by Part 2 of Schedule 2 of the property Law Act 2007, the Borrower will keep insured the Art Work at all times against loss or damage by theft or malicious or accidental damage.
5.7 Storage and care of Art Work
The Borrower will keep the Art Work stored or on display at the location and will do all things prudently required by an owner of such art work to ensure that the Art Work is not damaged and is kept in good repair and condition.
6 Events of Default
If, at any time and for any reason, whether or not within the control of a party:
the Borrower fails to pay on its due date any amount payable under this Agreement; or
Breach of obligations
the Borrower does not perform or comply with any of its obligations under this Agreement; or
is insolvent or unable to pay its indebtedness as it falls due; or
stops or suspends, or threatens to stop or suspend, payment of any of its indebtedness or begins negotiations or takes any proceedings to reschedule any of its indebtedness or
makes, or proposes to make, an assignment, arrangement, composition or compromise with, or for the benefit of, its creditors in respect of or affecting any of its indebtedness; or
if an individual commits an act of bankruptcy or becomes bankrupt; or
a distress, attachment, execution or other legal process is levied or enforced on or against assets of the Borrower and is not discharged or stayed within five days or a receiver, trustee, manager, administrator or similar officer is appointed in respect of it or its assets;
then the Security Documents shall become immediately enforceable and Avanti may, at any time, by notice to the Borrower:
cancel the Facility; and/or
declare any or all indebtedness of the Borrower under the Relevant Documents to be, and that indebtedness will be, due and payable either immediately or upon demand or at a later date as Avanti may specify.
6.2 Default Interest
If any payment is not made on its due date then interest at the Default Rate specified in the Credit Details in respect of the amount of the default is payable for the period during which that payment is in default.
7.1 General indemnity
The Borrower will on demand indemnify and hold Avanti harmless against each cost, loss (including loss of profit or margin), expense (including all legal expenses on a solicitor and own client basis and taxes) and liability sustained or incurred by Avanti as a result of:
the occurrence or continuation of an Event of Default, or not complying with any obligation expressed to be assumed by it in this Agreement or implied by law; or
an amount payable by the Borrower to Avanti not being paid when due, whether by prepayment, acceleration or otherwise (but, so far as appropriate, credit is to be given for amounts, if any, of default interest paid under this Agreement.
by payment to Avanti of the amount Avanti certifies is required to compensate it for that cost, loss, expense or other liability. The above indemnity is unconditional and irrevocable, is to survive termination of this Agreement and payment of all other indebtedness due under this Agreement and is not to be discharged or impaired by any act, omission, matter or thing that might discharge or impair them but for this sub-clause.
8 Payments and taxes
8.1 All payments on business days
Where a payment to be made under this Agreement is due on a day which is not a business day the due date will be the next business day (unless the next business day falls in the next calendar month, in which case the due date will be the previous business day).
8.2 Mode of payments
Each payment to Avanti under a Relevant Document is to be made by 4.00 pm on the due date in immediately available freely transferable funds in the manner and to the account at the bank which Avanti, by notice to the Borrower, specifies from time to time.
8.3 Payments to be free and clear
Each payment by the Borrower to Avanti under a Relevant Document is to be made:
free of any restriction or condition; and
free and clear of and (except to the extent required by law) without any deduction or withholding for or on account of tax or on any other account, whether by way of set-off, counterclaim or otherwise.
If a payment made by the Borrower to Avanti pursuant to this Agreement is avoided by law:
that payment will be deemed not to have discharged or affected the obligation of the Borrower in respect of which that payment was made or received; and
Avanti and the Borrower will be deemed to be restored to the position in which each would have been, and shall be entitled to exercise all the rights which each would have had, if that payment had not been made.
9.1 Benefit and burden of this Agreement
This Agreement is binding on and enure for the benefit of the parties and their respective successors and, in the case of Avanti, its assignees or transferees and, in the case of the Borrower, its permitted assignees or transferees.
Avanti may assign or transfer all or part of its rights or obligations under this Agreement without the consent of the Borrower. Each assignee or transferee is to have the same rights against the Borrower under this Agreement (or a proportion of those rights if it is the assignee or transferee of part only) as if named in this Agreement as Avanti.
9.3 Disclosure of information
Avanti may disclose, on a confidential basis, to a potential assignee, transferee or other person with whom contractual relations in connection with this Agreement are contemplated, any information about the Borrower whether or not that information was obtained in confidence and whether or not that information is publicly available.
9.4 The Borrower
The Borrower may not assign or transfer all or part of its rights or obligations under this Agreement without the consent of Avanti.
10.1 Enforcement expenses
The Borrower will pay on demand each cost and expense (including all legal expenses on a solicitor and own client basis and taxes) sustained or incurred by Avanti as a result of the exercise of, or in protecting or enforcing or otherwise in connection with, its rights under this Agreement or another transaction required or contemplated by this Agreement, in each case on a full indemnity basis.
11 Remedies and waivers
11.1 Exercise of rights and waivers
Time is of the essence of this Agreement but no failure to exercise, and no delay in exercising, a right of Avanti will operate as a waiver of that right, nor will a single or partial exercise of a right preclude another or further exercise of that right or the exercise of another right. No waiver by Avanti of its rights is to be effective unless it is in writing signed by Avanti.
11.2 Remedies cumulative
The rights of Avanti are cumulative and not exclusive of any rights provided by law.
No amendment to this Agreement will be effective unless it is in writing signed by all the parties.
12.2 Partial invalidity
The illegality, invalidity or unenforceability of a provision of this Agreement under any law will not affect the legality, validity or enforceability of that provision under another law or the legality, validity or enforceability of another provision.
This Agreement may be signed in any number of counterparts all of which, when taken together, will constitute one and the same instrument. A party may enter into this Agreement by executing any counterpart.
13 Governing law
13.1 Governing Law
This Agreement is to be governed by and construed in accordance with New Zealand law.
In this Agreement, unless the context otherwise requires:
Event of Default means any of the events specified in clause 6 and any other event or circumstance which, with the giving of notice, lapse of time or fulfilment of any other requirement, could constitute such an event;
14.2 Construction of certain references
In this Agreement, unless the context otherwise requires, any reference to:
a business day means a day (other than a Saturday) on which registered banks are open for general banking business in Auckland;
an individual, body corporate, an association of persons (whether corporate or not), a trust, a state and an agency of a state (in each case, whether or not having separate legal personality);
a gender includes each other gender;
the singular includes the plural and vice versa;
any legislation includes a modification and re-enactment of, legislation enacted in substitution for and a regulation, order-in- council and other instrument from time to time issued or made under, that legislation;
a party to this Agreement or another agreement includes its successors and, in the case of Avanti, its assignees and transferees and, in the case of the Borrower, its permitted assignees and transferees; and
headings and the table of contents are to be ignored in construing this Agreement.