1.1 In these Master Terms, when you see a capitalised word, it will have the same corresponding meaning every time it’s used unless the context of the sentence requires otherwise. In this Agreement:
You and Figured: When we say You, You’re or Your, we mean both You and Your farming business which the finance is for and who is the borrower listed in Your Loan Summary.
references to ‘you’ are also references to the general partner of the limited partnership
When we say Figured, We, Our or Us, We’re talking about Figured Ltd who You have agreed to take a loan out with, and the farm financial management software.
"Agreement" means these Master Terms, which we may change from time to time, and read together with Your Loan Summary. If we do change the Master Terms We will let you know via email.
"Borrower" means You, as identified in Your Loan Summary.
"Business Days" means a day (other than a Saturday or a Sunday) on which registered banks in New Zealand are open for general business banking.
"Conditions Precedent" means the Conditions Precedent of Your Loan as set out in section  of these Master Terms. This is a legal term which means the conditions that need to be met before the loan can be accepted by Us.
"Completion Date" means the date on which We confirm to You that all of the Conditions Precedent have been satisfied.
"Default Rate" means the total of the interest rate and the default margin, as stated in the interest section of the Your Loan Summary.
"Event of Default" means any of the events described in section 7 of these Master Terms.
"Final Repayment Date" means the date stated in Your Loan Summary.
"Guarantor" means the person(s) (if any) stated in Your Loan Summary or any other person that has given a guarantee to Us in respect of the Your obligations under this Agreement.
"Guarantee" means, if applicable to the Loan, the guarantee referred to in the guarantee section of Your Loan Summary, including the terms and conditions applicable to the guarantee as set out in the guarantee section of these Master Terms. For more information about guarantees refer to the guarantee section of the Master Terms.
"Insolvency Event" means, in relation to a person, if any of the following events happen:
"Loan" means any loan made available by Us to You that is governed by this Agreement.
"Loan Amount" means the amount specified in Your Loan Summary.
"Loan Start Date" means the date on which Your Loan is drawn down.
"Master Terms" means these Master Terms.
"Outstanding Money" means any amount of money that You owe to Us under the Loan and includes interest and costs.
"Potential Event of Default" means any event or circumstances which is likely to become an Event of Default.
"Your Loan Summary" means the document that contains the key information about this Agreement and which, together with these Master Terms, forms this Agreement.1.2 In this Agreement unless the context requires otherwise:
a reference to "the Borrower" or to "the Guarantor" extends to and includes the executors, administrators and assigns of that person;
"costs" includes any costs, charges, fees, commissions, indemnities, taxes, damages, losses, expenses (including legal fees and expenses on a full indemnity basis and goods and services and other taxes thereon), claims, liabilities (absolute or contingent), fines and penalties and includes loss of profit and costs incurred in liquidating or redeploying deposits or other funds;
"environmental law" includes any law which relates to (a) the environment, (b) safety, health or use of land, water, buildings or any other property or (c) substances or activities which may affect or otherwise harm the environment or be hazardous, and including the Resource Management Act 1991, the Building Act 2004 and the Hazardous Substances and New Organisms Act 1996;
"indebtedness" means any indebtedness or other monetary liability (whether present or future, actual or contingent) relating to any financial accommodation;
the person's ability or willingness to perform and comply with the obligations under this Agreement.
References to "material adverse change" have an equivalent meaning.
2.1 We agree to lend You the Loan Amount which is set out in Your Loan Summary and in return You agree to:
This is a legal term which means the conditions that must be met before We can provide You with Your Loan and if they are not met we have the right to not provide finance. You will need to satisfy any specific conditions that are listed in Your Loan Summary and the conditions precedent listed below in a way that is acceptable to Us (which we will tell You what that is).
3.1 The conditions precedent are:
4.1 Interest rate: The interest rate that applies to the Loan will be set out in the interest section of Your Loan Summary. This is comprised of the Figured base rate and Your risk margin which constitute Your total interest rate.
4.2 Changes to the interest rate: Unless Your Loan goes into default, We reserve the right to adjust the risk margin if there has been a material change to the underlying risk of Your Loan based on our risk assessment..
4.3 Interest payment: You must pay interest which has accrued on the Loan in accordance with the interest section of Your Loan Summary.
4.4 Interest calculation: We will calculate Interest on a daily basis and this will be determined by the actual number of days in that given month (between the 20th to the 20th) and a year of 365 days.
4.5 Default interest: The default interest margin that applies to Your Loan will be set out in Your Loan Summary. This Default Rate will only apply if You do not pay an amount payable (ie either an interest payment, or a principle repayment) under this Agreement when due. You will start paying default interest at the Default Rate from the date the relevant amount was due for payment until We have received the repayment amount together with all accrued default interest.
5.1 Repayments: We will work with You and agree a repayment plan that suits Your cash flow. You agree to make all repayments as per this plan which We will provide to you with Your Loan Summary. You can at any time request to pay back any amount of the Loan early just by contacting us. If you decide to do this We will not charge any early repayment fees. If you have repaid the Loan in full early Your only cost will be any interest that has accrued since Your last regular repayment.
5.2 Re-borrowing: Any amount repaid by You under the Loan may not be re-borrowed.
5.3 Final repayment: You shall pay to us any outstanding amount of the loan on the Final repayment Date.
This is the section where You formally confirm to Us that everything listed below is correct, as this information is what We have used to continue to provide finance to You. This is another legally binding term so it's important You understand it and confirm everything below.
6.1 You represent to Us that:
Status, power and authority: You have the power to enter into this Agreement under New Zealand law, and can perform and comply with its obligations;
Binding obligations: Your obligations under this Agreement are legal, valid, binding and enforceable;
any document which is binding upon You or (or constitute a termination event under any such document), nor cause any limit on its powers or the powers of its directors or trustees or the general partner (as applicable) to be exceeded;
Consents: You have all necessary consents required to enable it to enter into and perform its obligations under this Agreement, and enable it to continue to operate its business;
No legal proceedings: no legal proceedings, arbitration or administrative proceedings of, or before, any court, arbitral body or government agency has commenced or to the best of its knowledge or belief is pending or threatened;
Immunity: neither You, nor any of Your assets, has any immunity from suit or from execution or attachment or other legal process;
You are solvent and able to pay Your due debt as they become due in the normal course of business and no Insolvency Event has occurred in relation to You;
Environmental law: You are not aware of any breach of any environmental law or directives to which You are subject;
6.2 Each representation contained in this clause (and in Your Loan Summary) is deemed to continue for so long as this Agreement is in effect by reference to the facts and circumstances as they existing.
6.3 The Borrower acknowledges that Figured has relied on the representations in this clause (and in Your Loan Summary) in agreeing to accept this Agreement and in deciding to provide the Facility to the Borrower.
These are legally binding promises (Undertakings) that You agree to make as part of the loan agreement. If You fail to keep any of these promises then You will be in breach of the contract and We may put the loan into default.
7.1 You and the Guarantor(s) agree to:
8.1 Default: If at any time and for any reason, whether it was within Your control or not, any of the following events occur, then that shall constitute an Event of Default:
This section only applies if We have requested a guarantee being taken or a Guarantor(s) is needed.
9.1 Here are Our definitions and interruptions for when We are talking about Guarantees
"Guaranteed Debt" means all indebtedness (of whatever nature and whether on account of principal moneys, interest, fees or charges, tax or otherwise, and, to avoid doubt, including indebtedness assigned to Us by a third party) due, owing, payable or remaining unpaid by You to Us pursuant to, or contemplated by, this Agreement.
"Guaranteed Obligations" means all covenants, conditions, stipulations, representations, warranties, guarantees, undertakings, assurances, agreements and other obligations of any nature (whether present or future, express or implied, actual or contingent, secured or unsecured and whether incurred along, jointly, severally, as principal, surety or otherwise) of You to or for the benefit of Us pursuant to, or contemplated by, this Agreement.
9.2 The Guarantor(s) (if any) jointly and severally unconditionally and irrevocably guarantees to Us the due and punctual payment of the Guaranteed Debt as and when it becomes due and payable under this Agreement (whether on the normal due date, on acceleration or otherwise) and the due and punctual observance, performance of and compliance with the Guaranteed Obligations.
9.3 As a separate and additional liability under this Agreement, the Guarantor(s) (if any) jointly and severally unconditionally and irrevocably indemnifies Us against:
any Guaranteed Debt (or any amount which, if recoverable, would have formed part of the Guaranteed Debt) not being recoverable or recovered from the Guarantor under the guarantee given in clause 9.2; or
any Guaranteed Obligations being unenforceable or not being duly satisfied or performed under the guarantee given in clause 9.2.
9.4 This clause shall apply to any of the Guaranteed Debt (or any amount which, if recoverable, would have formed part of the Guaranteed Debt) which is not or may not be recoverable or recovered for any reason, and to any Guaranteed Obligations which are not or may not be enforceable for any reason (whether or not within Our knowledge), including any legal or equitable limitation, disability or incapacity of or affecting the Borrower or any other person, any transaction relating to such moneys or obligations being or becoming at any time void, voidable, defective or otherwise unenforceable and any other circumstances which allow the Borrower to avoid paying such amounts, in whole or in part. The Guarantor(s) undertakes to pay to Us the amount or amounts certified by Us as being required to so indemnify it immediately on demand.
9.5 If, for any reason, the Borrower does not pay all or any part of the Guaranteed Debt to Us on or before the due date for payment, the Guarantor(s) shall pay the Guaranteed Debt to Us on demand (whether or not demand for payment has been made on the Borrower or any other person).
9.6 The Guarantor(s) liability to Us under this Guarantee is deemed to be the liability of a principal debtor and not merely a surety.
9.7 No Guarantor’s liability will be affected or diminished, nor will any security interest or guarantee provided by any Guarantor be released or discharged, by any act, indulgence, omission or thing which but for this clause 9.7 would have affected or diminished that Guarantor’s liability or operated to release or discharge any such security interest or guarantee, or would have otherwise provided a defence to that Guarantor (in each case, in whole or in part, and whether or not known to, or done or omitted to be done by, that Guarantor or Figured or any other person).
9.8 This Guarantee is a continuing guarantee and indemnity and will remain in full force and effect by way of continuing security until a release of this Guarantee has been signed by Us and delivered to the Guarantor. This Guarantee will not be considered to be wholly or partially satisfied, discharged or affected by any intermediate payment or settlement of account or other matter or thing whatsoever.
9.9 We are not obliged to sign or deliver a release of this Guarantee until it is satisfied that:
the whole of the Guaranteed Debt and Guaranteed Obligations has been fully paid, satisfied and performed;
We are not required to advance any further amount under this Agreement; and
no payment received or to be received by Us may be avoided, or required to be repaid by Us, whether under any law relating to insolvency or otherwise.
9.10 This Guarantee is in addition to, independent of, and not in substitution for any other guarantee, security interest or right which We may have at any time and will not merge with or in any way be prejudiced or affected by, or prejudice or affect, any such guarantee, security interest or right. We may exercise any of Our rights, powers and remedies under this Guarantee and any such guarantee, security interest or right separately or concurrently.
9.11 We may at any time:
determine whether to enforce or refrain from enforcing this Guarantee (or any part of it) or any part of this Agreement or any other guarantee or security interest or right;
enforce this Guarantee (or any part of it) without first taking steps or proceedings against the Borrower or any other person; and
make any arrangement or compromise with the Borrower or any other person which We consider expedient.
9.12 We are not required to marshall, enforce or apply under, or appropriate, recover or exercise, any guarantee, security interest or other right held by it at any time or any moneys or property which it holds or is entitled to receive at any time before this Guarantee is enforced.
10.1 You shall, on demand, pay or reimburse Us for all costs incurred by Us in connection with this Agreement, including:
11.1 Payments. We will debit all repayments (this includes the monthly interest charge) from your nominated account set out in the Loan Summary.
11.2 New Zealand dollars. All payments made under or for the purposes of this Agreement must be made in New Zealand dollars.
11.3 Business Days. Unless otherwise specified, any payment under this Agreement which is due to be made on a day that is not a Business Day shall be made on the next Business Bay in the same calendar month (if there is one) or the preceding Business Day (if there is not).
11.4 No deduction.
12.1 General indemnity: You will indemnify Us on demand against each cost which We may sustain or incur directly or indirectly as a result of or in connection with:
12.2 Payment under indemnity: Upon demand by Us under clause 12.1, You will pay the amount that We certifies is required to compensate Us for our cost, including each cost incurred in re-arranging:
any amounts We arranged to fund a loan or other amount payable under this Agreement;
any transaction We arranged in anticipation of funding a loan or other amount payable under this Agreement.
12.3 Indemnity irrevocable. Each of the indemnities contained in this Agreement constitutes a separate and independent obligation from the other obligations in this Agreement giving rise to an independent cause of action irrespective of any time, credit or other indulgence on the part of Us or any other matter.
13.1 Communication. Any communication in connection to this Agreement is to be via confirmed email, or Our electronic signing tool.
13.2 Receipt: A communication under this Agreement will be taken to be effective when sent.
13.3 Reliance: We shall be entitled to rely on any communication made under or in connection with this Agreement which We believe to be genuine and appropriately authorised (without the need to carry out any investigation or make further enquiry) and shall not be liable to any person in any way should any such communication subsequently be proven not to have been authorised by that other person, or to have been made, given or signed by someone other than that other person or an authorised officer of that person. You must take reasonable steps to ensure that no false or unauthorised notices are sent to Us.
14.1 This Agreement will be signed by each party electronically in any form that satisfies the requirements of the Contract and Commercial Law Act 2017.
15.1 Change in the law: If We give written notice that, in Our opinion it has become illegal in a jurisdiction or contrary to any treaty or directive of any agency of state or other regulatory authority in that jurisdiction or otherwise impracticable for it to continue to make the Loan available:
15.2 Certificate is conclusive: In the absence of manifest error, a certification or determination from Figured as to an amount or fact relating to this Agreement will be conclusive evidence of such amount or fact.
15.5 Partial invalidity: If, in any jurisdiction, a provision of this Agreement is illegal or unenforceable, this Agreement is to be interpreted, for the purposes of that jurisdiction only, as if it had never included the provision so far as the provision is illegal or unenforceable.
15.6 Survival of obligations: Any obligation under this Agreement to pay Us any amount of money as costs, or on account of a loss that We may have suffered, will be a continuing and independent obligation that survives even if this Agreement is terminated.
15.7 Law and Jurisdiction:
This Agreement is governed by New Zealand law.
In relation to any proceedings about or in connection with this Agreement, the parties agree to submit to the non-exclusive jurisdiction of the New Zealand courts.
15.8 Certifications by person signing Agreement: By signing this Agreement for a party, the person signing makes the relevant certifications contained in the annexure below to Us. The certifications are about the party on whose behalf the person signing is signing this Agreement. When the word 'transaction' is used in the annexure it means the Transaction contemplated by this Agreement.
The person signing this Agreement as a director of a company certifies to Us as follows (having made appropriate enquires):
1.1 The person signing is a director of the company and is authorised by the company to sign on its behalf.
1.2 All consents, approvals and authorisations required by the company in connection with its entry into and performance of this Agreement and the transactions, have been obtained (on an unconditional basis) and remain in full force and effect.
1.3 The person signing and the other directors (if any) (so far as the person signing is aware, for the certification about directors other than itself) have complied with their duties in approving the company's entry into the transaction.
1.4 The person signing and the other directors (if any) (so far as the person signing is aware, for the certification about directors other than itself) have the power to enter into the transaction on behalf of the company.
2. Self Interested Directors
2. If any directors are interested (as defined in s139 of the Companies Act 1993) in the transaction, the board considers that the company is receiving (or will receive) fair value under them and all the company's entitled persons have agreed in writing to the company's entry into and performance under this Agreement and the transaction.
The board has (after taking into account all relevant factors) resolved that the company's entry into, and the performance of, this Agreement and the transaction is in the best interests of either:
3.1 the company; or
3.2 the company's holding company (pursuant to an express provision in the company's constitution).
4.1 The company has properly executed this Agreement.
5.1 The board believes, and as far as the person signing is aware, the company is not insolvent.
6.1 All documents required by the Companies Act 1993 to be registered with the Registrar of Companies in respect of the company have been duly registered and are true and correct in all material respects. There are no material unregistered documents which would alter the records held by the Registrar of Companies in relation to the company which have not previously been disclosed to you. The copy of the company's constitution (if applicable) registered with the Registrar of Companies on the date of the Agreement is complete and up-to-date.
1.1 The person signing is authorised by the limited partnership to sign on its behalf.
1.2 The general partner is the current and only general partner of the limited partnership.
1.3 All consents, approvals and authorisations required by law and the limited partnership agreement for the limited partnership to enter into the transaction are in effect.
1.4 The directors of the general partner have complied with their duties in approving the limited partnership's entry into the transaction and have the power to enter into the transaction on behalf of the limited partnership.
2. Best Interests
2.1 The general partner considers that this transaction is in the limited partner's best interests.
3.1 The general partner has properly executed this Agreement on behalf of the limited partnership.
4.1 The board of the general partners believes, and as far as the person signing is aware, neither the limited partnership nor the general partner is insolvent.
5. Corporate Documents
5.1 All documents required by the Limited Partnerships Act 2008 to be registered with the register of limited partnerships in respect of the limited partnership have been duly registered and are true and correct in all material respects. There are no material unregistered documents which would alter the records held by the register of limited partnerships in relation to the limited partnership after the date of this Agreement which have not previously been disclosed to you.
1.1 All consents, approvals and authorisations required by law and the partnership agreement (if applicable) for the partnership to enter into the transaction are in effect.
1.2 The partners have (so far as the person signing is aware, for the certification about partners other than itself) have complied with their duties in approving the partnership's entry into the transaction.
1.3 The partners have the power to enter into the transaction on behalf of the partnership.
1.4 At the date of execution of the Agreement no partner has resigned, nor received any notice or information of the revocation by any means whatever of their appointment as partner.
1.5 This Agreement will continue to bind the partnership and its partners despite any changes that may take place in the partners (including by death, incapacity, retirement, or admission of any partners).
1.6 This Agreement will continue to bind the partnership and its partners event if the partnership no longer carries on business after the date of this Agreement.
1.7 As well as the person signing's joint liability as a partner, the person signing is individually liable for all obligations of the partnership.
2. Best Interests
2.1 The partners consider that this transaction is in the partnership's best interests.
3.1 The current partners of the partnership have properly executed the transaction documents on behalf of the partnership.
4.1 as far as the person is aware, neither the partnership nor any partner is insolvent.
1.1 The person signing is a trustee of the trust and is authorised by the trust to sign on its behalf.
1.2 The trustees signing this Agreement are all the current trustees of the trust and each has the power and authority to hold on trust the trust assets and to carry on the business of the trust.
1.3 All consents, approvals and authorisations required by law and the trust deed for the trust to enter into the transaction are in effect.
1.4 The person signing and the other trustees (if any) (so far as the person signing is aware, for the certification about trustees other than itself) have complied with their duties in approving the trust's entry into the transaction.
1.5 The person signing and the other trustees (if any) (so far as the person signing is aware, for the certification about trustees other than itself) have the power to enter into the transaction on behalf of the trust.
1.6 No trustee has resigned and no action has been taken to remove any trustees as a trustee of the trust.
2. Best Interests
2.1 The trustees consider that this transaction is in the trust's best interests.
3.1 The trustees have properly executed this Agreement on behalf of the trust.
4.1 The trustees believe, and as far as the person signing is aware, the trust is not insolvent.