Parties
1. EnergyAustralia Home Services Pty Ltd ABN 43 095 759 881 of 385 Bourke Street, Melbourne, VIC (Lender)
2. The person or persons named as the borrower in the application for the Subscription Amount (Borrower)
Background
A. At the request of the Borrower, the Lender has agreed to lend the Subscription Amount to the Borrower upon and subject to the provisions of this Agreement.
Agreed terms
1. Interpretation
1.1 Definitions
Meanings apply to capitalised terms used in this Agreement as specified in this provision, unless the context otherwise requires:
Account means the account established under clause 4;
Agreement means these terms and conditions read in conjunction with the Payment Plan Agreement Details.
Amount Owing means all amounts owed by the Borrower to the Lender on the Account;
Authorisation means any consent, authorisation, registration, filing, agreement, notarisation, certificate, permit, licence, approval, authority or exemption of, from or required by, a Government Agency or required by law;
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Melbourne or Sydney;
Controller has the same meaning as in the Corporations Act 2001 (Cth);
Drawdown Date means the due date for payment of the Goods as shown on the invoice issued by the Supplier for the Goods, or such other date agreed between the Lender and the Supplier;
Event of Default means any of the events or circumstances described in clause 13.1;
Final Repayment Date means the last day of the Term or such other date agreed to in writing by the Lender and the Borrower;
Government Agency means any government or any governmental, semi‑governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity, including any self-regulatory organisation established under statute and any stock exchange;
Goods means the goods provided to the Borrower by a Supplier as part of a Purchase;
Insolvency Event means, in respect of a person:
(a) an administrator, Controller or liquidator being appointed to the person or the person's property;
(b) the person being taken under section 459F(1) of the Corporations Act 2001 (Cth) to have failed to comply with a statutory demand;
(c) an application being made to a court for an order, or the person passing a resolution, for its winding up;
(d) an application is made, or an order is sought or declared for the person to be bankrupt;
(e) the person:
(i) being unable to pay its debts or otherwise insolvent;
(ii) has committed an act of bankruptcy within the meaning of section 40 of the Bankruptcy Act 1966 (Cth);
(iii) is served with a bankruptcy notice under the Bankruptcy Act 1966 (Cth); or
(iv) it appoints or attempts to appoint a trustee or attempts to have his or her affairs administered under Part X of the Bankruptcy Act 1966 (Cth);
Loss means a loss, claim, action, damage, liability, cost, charge, expense, penalty, compensation, fine or outgoing suffered, paid or incurred;
Payment Plan Agreement Details means the document with that name issued by the Lender to the Borrower.
Power means any right, power, authority, discretion or remedy conferred on the Lender by this Agreement or any applicable law;
PPSA means the Personal Property Securities Act 2009 (Cth);
PPS Law means the PPSA and any amendment made at any time to any other law as a consequence of the PPSA;
Purchase means the purchase of Goods using the Subscription Amount;
Repayment Amount means the Subscription Amount divided by the number of months in the Term;
Security Interest means any:
(a) security interest as defined in the PPSA and to which the PPSA applies;
(b) security for payment of money, performance of obligations or protection against default (including a mortgage, bill of sale, charge, lien, pledge, trust, power or title retention arrangement, right of set-off, assignment of income, garnishee order or monetary claim and flawed deposit arrangements); and
(c) thing or preferential interest or arrangement of any kind giving a person priority or preference over claims of other persons or creditors with respect to any property or asset,
and includes any agreement to create any of them or allow them to exist;
Subscription Amount means the subscription amount set out in Item 7 of the Payment Plan Agreement Details;
Supplier means the Lender or any other supplier of goods which has been approved by the Lender;
Tax means:
(a) any tax, levy, charge, impost, duty, fee, deduction, compulsory loan or withholding; or
(b) any income, stamp or transaction duty, tax or charge,
which is assessed, levied, imposed or collected by any Government Agency and includes any interest, fine, penalty, charge, fee or other amount imposed on or in respect of any of the above;
Tax Deduction means a deduction or withholding for or on account of a Tax (other than GST) from a payment under this Agreement; and
Term means the term set out in Item 8 of the Payment Plan Agreement Details or as otherwise agreed by Borrower and Lender;
Transaction means any transaction contemplated by or in connection with any Transaction Document; and
Transaction Document means:
(a) this Agreement;
(b) any document or agreement that the parties agree in writing is to be a transaction document for the purposes of this Agreement; and
(c) any document or written agreement that is entered into under any of the above.
1.2 Interpretational rules
Rules of interpretation apply to this Agreement as specified in this provision, unless the context otherwise requires:
(a) headings and subheadings are for convenience only and do not affect the interpretation of this Agreement, except for specified cross-references;
(b) the singular includes the plural and vice versa;
(c) any gender includes the other genders;
(d) other grammatical forms of defined words or expressions have corresponding meanings;
(e) a reference to a party to any agreement or document includes its successors and permitted assigns and substitutes by way of assignment or novation;
(f) a reference to an agreement or document includes that agreement or document as modified at any time and any document or agreement replacing it;
(g) any reference to a provision of or in this Agreement means a clause of, or schedule, annexure, exhibit or attachment to, this Agreement, including each clause, subclause, paragraph and subparagraph of that provision;
(h) the use of the word include or any form of that word must be construed as if it were followed by the words without limitation;
(i) a reference to a thing includes part of that thing;
(j) reference to "A$" and "Australian dollars" is a reference to the lawful currency of Australia;
(k) an Event of Default is "continuing" or "subsisting" or "continues" or "subsists" if it has not been remedied to the satisfaction of the Lender or waived in writing by the Lender.
2. Subscription
Subject to the terms of this Agreement, the Lender will loan to the Borrower the Subscription Amount in a single advance in accordance with clause 5.
3. Purpose
The Subscription Amount must be used by the Borrower to make a Purchase from a Supplier.
4. Accounts
(a) You authorise the Lender to establish an Account in your name and to debit to that Account:
(i) the amount of the Purchase;
(ii) interest payable under clause 7;
(iii) enforcement costs pursuant to this Agreement; and
(iv) any other amounts owing under this Agreement.
(b) The Borrower agrees to pay the Lender the amounts debited to the Account.
5. Drawdown
The Subscription Amount will be paid to the Supplier of the Goods on the Drawdown Date.
6. Conditions on subscription
The Borrower acknowledges that an advance of the Subscription Amount is subject to the following conditions:
(a) the Purchase is from a Supplier;
(b) the advance for the Purchase will be paid directly to a Supplier by the Lender in accordance with clause 5; and
(c) no Event of Default has occurred or is subsisting as at the date of the relevant Purchase or will result from the provision of monies for the Purchase.
7. Interest
7.1 Interest
Subject to clause 7.2, no interest or charge is payable for providing the Subscription Amount.
7.2 Default interest
If the Borrower fails to pay on the relevant due date (Relevant Due Date) any amount that the Borrower is obliged to pay under this Agreement, the Borrower must pay default interest on that amount. The default interest:
(a) must be paid on written demand given to the Borrower by the Lender;
(b) is calculated from and including the Relevant Due Date to but excluding the day on which it is paid in full, at the Default Rate; and
(c) accrues each day at the Default Rate.
7.3 Other rights not affected
The Lender's right to require payment of default interest under clause 7.2 does not affect any other rights or remedies it may have in respect of a failure to pay an amount due under this Agreement.
8. Repayment
(a) The Borrower must repay to the Lender the Repayment Amount on the nominated Business Day of each month.
(b) The Borrower must repay to the Lender the Amount Owing in full on the Final Repayment Date.
9. Payments
9.1 Payment manner
The Borrower must make each payment to the Lender required under this Agreement in Australian dollars on the due date for payment by immediately available funds to the account or place notified by the Lender to the Borrower.
9.2 Payment dates
Any payment by the Borrower required under this Agreement falling due on a day which is not a Business Day must be made on the immediately preceding Business Day.
9.3 Set-off exclusion
The Borrower must make any payment required under this Agreement without any set-off, counterclaim, cross-claim, deduction or withholding, whether on account of Taxes or otherwise, except for any Tax Deduction or withholding required by law.
10.Security
The Borrower gives and the Lender takes a Security Interest being a fixed charge over the Goods to secure the Borrower's obligations under this Agreement.
11.Personal Property Securities regime
11.1 PPSA further steps
(a) The Lender may, at its discretion, do any of the following:
(i) register or give any notification in connection with any relevant Security Interest and exercise rights in connection with the Security Interest; and
(ii) give notice to the Borrower requiring it to do anything at its expense that the Lender requires for the purposes clause 11.1(a)(i) including, but not limited to, amending any Transaction Document, executing any new document or agreement, obtaining consents and supplying information.
(b) The Borrower must comply with any notice received pursuant to clause 11.1(a) within the time stipulated in the notice.
11.2 General
(a) The Borrower irrevocably and unconditionally waives its right to receive from the Lender any notice under the PPS Law (including notice of a Verification Statement) unless required by the PPS Law and if the notice cannot be excluded.
(b) The Borrower must not register a Security Interest against the Lender without its prior written consent.
(c) The parties agree that the subject matter referred to in section 275(1) of the PPS Law is confidential and each party must not disclose any such information to a third party.
11.3 Contracting out
(a) The following provisions of the PPS Law do not apply and, for the purposes of section 115 are "contracted out" of these terms, namely sections 95, 96, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143.
(b) The parties agree that the Lender has the power to retain, deal with or dispose of any property seized by it in the manner specified in sections 123, 125, 126, 128, 129 and 134(1) of the PPS Law and in any other manner it deems fit.
12.Notices to Lender
The Borrower must ensure that the Lender is notified, with reasonable details, promptly of the following:
(a) on becoming aware of any an Event of Default occurring, and (if applicable) the steps taken or proposed to be taken to remedy it;
(b) on becoming aware of any representation or warranty made, repeated or taken to be made or repeated by it or on its behalf under this Agreement becoming untrue, incorrect or misleading (whether by omission or otherwise) in any material respect when so made, repeated or taken to be made or repeated;
(c) any change in its name, address and any other information provided to the Lender to enable the Lender to register a financing change statement under the PPS Law if required; and
(d) promptly, whatever other information the Lender reasonably requests about the assets, financial condition or state of affairs of the Borrower.
13.Default
13.1 Events of Default
Each of the events set out in this clause 13.1 constitutes an Event of Default, whether or not it is within the control of the Borrower:
(a) the Borrower fails to pay an amount that is due and owing under this Agreement when due;
(b) the Borrower fails to comply with any obligation under this Agreement and, if capable of being remedied, it continues unremedied for 10 Business Days;
(c) the Borrower ceases to be a gas and / or electricity customer of EnergyAustralia Pty Ltd ABN 99 086 014 968;
(d) a statement, representation or warranty made by or on behalf of the Borrower in this Agreement, or in a document provided in connection with this Agreement, is incorrect or misleading in a material respect when made or repeated;
(e) an Insolvency Event occurs in respect of the Borrower;
(f) any material provision of this Agreement is or becomes void, voidable, illegal or unenforceable;
(g) any person becomes entitled to terminate, rescind or avoid any material provision of this Agreement; and
(h) the execution, delivery or performance of this Agreement breaches or results in a contravention of any applicable law.
13.2 Effect of Event of Default
(a) After the occurrence of an Event of Default which is subsisting, the Lender may do any or all of the following:
(i) declare that an Event of Default has occurred and that all of the outstanding balance of the Amount Owing be immediately due and payable, where upon such amount will become immediately due and payable by the Borrower; or
(ii) enforce and exercise any of its rights under this Agreement including any Security Interest and rights to charge the Default Rate.
(b) This Agreement may be enforced without notice to the Borrower or any other person even if the Lender accepts any part of the Amount Owing after an Event of Default or another Event of Default has occurred.
(c) The Lender is not liable to the Borrower for any Loss the Borrower may suffer, incur or be liable for arising out of or in connection with the Lender exercising any Power, except to the extent specifically set out in this Agreement.
14.Early termination
The Borrower may terminate this Agreement at any time before the end of the Term upon payment to the Lender the Amount Owing at the relevant time.
15.Indemnity
The Borrower indemnifies the Lender (and its officers, employees and agents) against, and must pay to the Lender on demand amounts equal to, any Loss arising as a result of or in connection with:
(a) an Event of Default;
(b) any payment required under this Agreement not being made in accordance with clause 9;
(c) the exercise or attempted exercise of any Power;
(d) a Tax Deduction by the Borrower in respect of a payment to the Lender; and
(e) the Lender acting or relying on information supplied or approved by or on behalf of the Borrower which proves to be a misrepresentation or to be misleading or deceptive in connection with this Agreement (including by omission of other information),
including any legal costs and expenses (on a full indemnity basis) and any professional consultant's fees in connection with the above.
16.Costs
The Borrower must pay or reimburse all costs and expenses of the Lender (and its officers, employees and agents) in relation to the enforcement, attempted enforcement, protection or waiver of any rights or Powers under this Agreement or any consents given under this Agreement, including any legal costs and expenses and any professional consultant's fees, on a full indemnity basis and without the necessity for any taxation or assessment.
17.Assignment
(a) The Borrower must not assign, transfer or otherwise deal with its rights, interests or obligations under this Agreement without the Lender's prior written consent.
(b) The Lender may assign all or any of its rights, or novate all or any of its rights and obligations, under this Agreement at any time to any person without the prior consent of the Borrower.
18.Notices
18.1 Notices
(a) Any notice or other communication to be given under this Agreement:
(i) unless stated otherwise, must be given by letter or email;
(ii) must be in writing and in English and must be legible;
(iii) must, if sent by the Borrower, include the Borrower’s account number;
(iv) must be sent to the relevant address as shown below:
(A) If to the Lender:
Address: 385 Bourke Street, Melbourne, VIC
Email: paymentplanadmin@energyaustralia.com.au
Attention: Credit Manager
(B) If to the Borrower, to the address or email specified in the Borrower's application for the Subscription Amount,
or to any substitute address or email address (or department or officer) last notified to the sender by the relevant party by not less than 5 Business Days’ notice given in accordance with this clause 18.1. ]
19.General provisions
19.1 Nature of obligations
(a) Any provision in this Agreement which binds more than one person as a party binds all of the persons who make up the party jointly and each of them severally.
(b) Each obligation imposed on a party by this Agreement in favour of another is a separate obligation. Unless specified otherwise, the performance of one obligation is not dependent or conditional on the performance of any other obligation.
19.2 Further steps
The Borrower agrees to do anything the Lender asks (such as obtaining consents, signing and producing documents and getting documents completed and signed):
(a) to bind it and any other person intended to be bound under this Agreement;
(b) to give full effect to this Agreement; and
(c) to show whether it is complying with this Agreement.
19.3 Governing law
(a) This Agreement is governed by and must be construed in accordance with the laws in force in Victoria.
(b) The parties submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to this Agreement, its performance or subject matter.
19.4 Continuing performance
(a) Any representation or warranty in this Agreement survives the execution of and advance of credit under this Agreement and continues until final termination or expiry of this Agreement by the Lender.
(b) Any indemnity agreed by the Borrower under this Agreement:
(i) constitutes a liability of the Borrower separate and independent from any other liability under any other agreement or under this Agreement; and
(ii) survives the payment of the Amount Owing or the termination or expiry of this Agreement.
19.5 Lender's certificate
A certificate signed by the Lender stating the amount of the Amount Owing whether currently due and payable or not is sufficient evidence of that amount as at the date stated on the certificate, unless it is manifestly incorrect or the contrary is proved.
19.6 No adverse construction
This Agreement, and any provision of this Agreement, is not to be construed to the disadvantage of a party because that party was responsible for its preparation.
19.7 Consents
Any consent of the Lender for anything under this Agreement depending on that consent may be given conditionally or unconditionally or withheld in the absolute discretion of the Lender, except where this Agreement specifies otherwise.
19.8 Variations
This Agreement cannot be amended or varied except in writing signed by the parties.
19.9 Waivers
(a) Any failure, delay or indulgence by the Lender in exercising any right conferred on the Lender under this Agreement does not operate as a waiver of that right.
(b) A single or partial exercise of the right does not preclude any other or further exercise of any other right conferred on the Lender under this Agreement.
(c) A waiver of a breach does not operate as a waiver of any other breach.
(d) A waiver by the Lender of any default by the Borrower under this Agreement does not operate as a waiver of any other default by the Borrower.
19.10 Remedies
The rights of the Lender under this Agreement are cumulative and not exclusive of any rights provided by law.
19.11 Severability
Any provision of this Agreement which is invalid in any jurisdiction must in relation to that jurisdiction:
(a) be read down to the minimum extent necessary to achieve its validity, if applicable; and
(b) be severed from this Agreement in other case,
without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction, except where doing so would cause the Agreement to operate in a way which is materially inconsistent with the parties' intention.