DATED 2016 DEPARTMENT OF EDUCATION AND CHILDREN. and [ ] AGREEMENT FOR A LOAN MADE PURSUANT TO THE EDUCATION (STUDENT AWARDS) REGULATIONS 2016

Transcription

1 Loan Agreement Reference No. [ ] DATED 2016 DEPARTMENT OF EDUCATION AND CHILDREN and [ ] AGREEMENT FOR A LOAN MADE PURSUANT TO THE EDUCATION (STUDENT AWARDS) REGULATIONS 2016 IN COMMERCIAL CONFIDENCE

2 Contents CLAUSE 1. Definitions and Interpretation The Loan Purpose Conditions precedent Interest Repayment Payments Representations and warranties Covenants Events of Default Confidentiality Calculations, accounts and certificates Amendments, Waivers and Consents and Remedies Severance Assignment and transfer Counterparts Third party rights Notices Governing law and jurisdiction SCHEDULE SCHEDULE CONDITIONS PRECEDENT Finance Documents Financial Information... 16

3 THIS AGREEMENT is dated [DATE] PARTIES (1) [FULL STUDENT NAME] of [ ]( Student ). (2) THE DEPARTMENT OF EDUCATION AND CHILDREN (a Department of the Isle of Man Government) of Hamilton House Peel Road Douglas Isle of Man IM1 5EZ ( Department ). BACKGROUND 1. Pursuant to Section 37 of the Education Act 2001, the Department has made the Education (Student Awards) Regulations 2014 ( the Regulations ). 2. The Student has been accepted by an Institution to study a Course for the Academic Year and has applied for a Fees Grant pursuant to the Regulations. 3. In accordance with Regulation 17(6) the Department has directed that the Student shall pay the Contribution. 4. Regulation 20 provides (inter alia) that the Department may lend to the Student, on such terms as it considers appropriate, an amount not exceeding 2,500 towards the Contribution. 5. The Department has agreed to provide the Student with an unsecured term loan facility. 6. This agreement shall apply to the Loan and where any such are awarded (which shall be determined by the Department upon receipt of any Future Application(s) in accordance with the Regulations), to all or any Future Loans. AGREED TERMS 1. DEFINITIONS AND INTERPRETATION 1.1 Definitions The following definitions apply in this agreement. Academic Year: the academic year from September 2016 to August 2017 Application: the application form(s) completed by the Student and submitted to the Department bearing the same reference number as this 1

4 Agreement in which the Student applied for the Loan in relation to the Course for the Academic Year Business Day: a day other than a Saturday, Sunday or public holiday in the Isle of Man when banks are open for business. Contribution: the contribution towards the Fees Grant calculated in accordance with Schedule 1 to the Regulations and payable by the Student to the Department. Course: the educational course to be studied by the Student at the Institution as more particularly set out in the Application. Discontinuation: the date upon which the Department is notified by the Institution that the Student is considered by them to have left the Course without completing the relevant Academic Year without the prior written consent of the Department. Event of Default: any event or circumstance listed in clause 10.1 to clause 10.8 of this agreement. Fees Grant: the fees grant applied for by the Student and to be awarded by the Department pursuant to the Regulations. Future Academic Years: subsequent academic years from September to the August of the following year in respect of which the Student is awarded a Future Loan or Future Loans. Future Application: an application or applications submitted by the Student for Future Loans for Future Academic Years. Future Contributions: any contribution payable by the Student for Future Academic Years. Future Loan/Loans: any loan(s) granted pursuant to a Future Application. Gross Earnings: annual income from all sources except social security benefits that are disregarded for the purposes of computing a person s income tax liability Indebtedness: any obligation to pay or repay money, present or future, whether actual or contingent, sole or joint and any guarantee or indemnity of any of those obligations. Institution: the educational institution at which the Student shall study the Course as specified in the Application. Loan: the principal amount of the loan made or to be made by the Department to the Student under this agreement pursuant to the Application or (as the context requires) the principal amount outstanding for the time being of that loan and where the context so admits shall include the principal amount outstanding of any Future Loan(s). Potential Event of Default: any event or circumstance specified in clause 10.1 to clause 10.8 that would, on the giving of notice, expiry of any grace 2

5 period or making of any determination under this agreement, or satisfaction of any other condition (or any combination thereof), become an Event of Default. Regulations: the Education (Student Awards) Regulations 2016 (as amended or superseded). Relevant Date: 1 st July of the year in which the Student ceases to study for any course for which support is provided under the Regulations. Relevant Year: any year ending on 5 th April after the Relevant Date. Repayment Date: the date upon which the Student s Gross Earnings (which will be calculated in accordance with Schedule 4 of the Regulations) in the Relevant Year has exceeded Twenty One Thousand Pounds ( 21,000) ( the Earnings Threshold ) and every month thereafter whilst the Student s Gross Earnings exceed the Earnings Threshold. Repayment Instalment: each instalment for the repayment of the Loan(s) under clause 7 of combined principal and interest and being an amount equal to a) 9% of the amount by which the Student s Gross Earnings (which will be calculated in accordance with Schedule 4 of the Regulations) in the Relevant Year exceeded Twenty One Thousand Pounds ( 21,000), or b) The amount outstanding of the Loan plus all interest accrued and unpaid up to and including the date on which the Repayment Instalment is due, whichever is the less and shall be appropriated first to the payment of interest. Sterling and : the lawful currency of the UK and Isle of Man. Total Loan Amount: the maximum principal amount of the Loan referred to in clause 2. Tuition Fees: the tuition fees of the Institution at which the Student will undertake the Course. Twenty One Thousand Pounds ( 21,000.00): means Twenty One Thousand Pounds ( 21,000.00) or such other amount as may be specified in the Regulations as amended from time to time. 1.2 Interpretation In this agreement: (a) clause, Schedule and paragraph headings shall not affect the interpretation of this agreement; 3

6 (b) (c) (d) (e) (f) (g) (h) a reference to a person shall include a reference to an individual, firm, company, corporation, partnership, unincorporated body of persons, government, state or agency of a state or any association, trust, joint venture or consortium (whether or not having separate legal personality) and that person's personal representatives, successors, permitted assigns and permitted transferees; unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular; unless the context otherwise requires, a reference to one gender shall include a reference to the other genders; a reference to a party shall include that party's successors, permitted assigns and permitted transferees; a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time; a reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision; a reference to a time of day is to Isle of Man time; (i) a reference to writing or written includes fax and scanned documents sent by ; (j) (k) (l) an obligation on a party not to do something includes an obligation not to allow that thing to be done; a reference to this agreement (or any provision of it) or to any other agreement or document referred to in this agreement is a reference to this agreement, that provision or such other agreement or document as amended (in each case, other than in breach of the provisions of this agreement) from time to time; unless the context otherwise requires, a reference to a clause or Schedule is to a clause of, or Schedule to, this agreement and a reference to a paragraph is to a paragraph of the relevant Schedule; (m) any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms; (n) (o) a reference to a document in agreed form is to that document in the form agreed by the Department and the Student and initialled by or on their behalf for identification; a reference to an amendment includes a novation, re-enactment, supplement or variation (and amended shall be construed accordingly); 4

7 (p) a reference to an authorisation includes an approval, authorisation, consent, exemption, filing, licence, notarisation, registration and resolution; (q) (r) (s) (t) (u) a reference to a certified copy of a document means a copy certified to be a true, complete and up-to-date copy of the original document, in writing and signed by a director or the secretary of the party delivering the document; a reference to continuing in relation to an Event of Default means an Event of Default that has not been remedied or waived; a reference to determines or determined means, unless the contrary is indicated, a determination made at the discretion of the person making it; a reference to a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, inter-governmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation; a reference to the Loan includes, unless the contrary is indicated, a reference to any Future Loan(s). 1.3 The Schedule forms part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedule. 2. THE LOAN The Department grants to the Student the Loan of a total principal amount not exceeding Two Thousand Five Hundred Pounds ( 2,500.00) on the terms and subject to the conditions, of this agreement, together with the amount of any Future Loan(s) (the amounts of which shall be recorded in a Memorandum to be attached to this agreement). 3. PURPOSE The Loan shall be credited by the Department towards the Contribution. 4. CONDITIONS PRECEDENT 4.1 This clause 4 is inserted solely for the benefit of the Department. 5

8 4.2 The Department's obligation to make the Loan is subject to the further conditions precedent that, on both the date the Loan and any Future Loan(s) are credited towards the Contribution: (a) (b) the representations and warranties in clause 8 are true and correct in all material respects and will be true and correct in all material respects; and no Event of Default or Potential Event of Default is continuing or would result from the proposed Loan. 5. INTEREST Compound interest on the amount outstanding of a Loan and any outstanding accrued interest thereon shall accrue on an annual basis from the Relevant Date and each succeeding 1 st July at the rate prescribed under Section 111A(1) of the Income Tax Act 1970 (interest on overdue tax). 6. REPAYMENT 6.1 The Student shall repay the Loan in full either: Upon demand in the event of Discontinuation; or by repaying the Repayment Instalments the first of such Repayment Instalments being due on the Repayment Date and monthly thereafter. 6.2 Voluntary prepayment (a) The Student may prepay part or all of a Loan by notifying the Department five Business Days in advance. The Student may only do this if: (i) (ii) the notice specifies the Loan to be prepaid and the amount of the prepayment which, if it is less than the outstanding Loan, must be a whole multiple of Fifty Pounds ( 50.00); and the prepayment does not result in an Event of Default or Potential Event of Default. 6.3 On prepayment of part or all of a Loan in accordance with clause 7.3, the Loan shall immediately be reduced by an amount equal to the amount of the prepayment. 6

9 7. PAYMENTS 7.1 All payments made by the Student under this agreement shall be in Sterling and in immediately available cleared funds to the Department at its account number with the Isle of Man Bank of 2 Athol Street Douglas Isle of Man IM99 1AN or such other account as the Department may notify the Student. 7.2 If any payment becomes due on a day that is not a Business Day, the due date of such payment will be extended to the next succeeding Business Day, or, if that Business Day falls in the following calendar month, such due date shall be the immediately preceding Business Day. 7.3 All payments made by the Student under this agreement shall be made in full, without set-off, counterclaim or condition, and free and clear of, and without any deduction or withholding. 8. REPRESENTATIONS AND WARRANTIES The Student represents and warrants to the Department on the date of this agreement: 8.1 As declared in the statement of truth contained therein, the information submitted by the Student in the Application and any Future Application was and remains accurate and complete. 8.2 No Event of Default or Potential Event of Default has occurred or is continuing, or is reasonably likely to result from making the Loan or the entry into, the performance of, or any transaction contemplated by this agreement. 8.3 No other event or circumstance is outstanding which constitutes (or, with the expiry of a grace period, the giving of notice, the making of any determination or any combination thereof, would constitute) a default or termination event (howsoever described) under any other agreement or instrument which is binding on the Student which has or is [reasonably] likely to have a material adverse effect on the Student s ability to perform the Student s obligations under this agreement. 8.4 No litigation, arbitration or administrative proceedings are taking place, pending or, to the Student's knowledge, threatened against the Student, which, if adversely determined, might reasonably be expected to have a material adverse effect on the Student s ability to perform the Student s obligations under this agreement. 7

10 8.5 Each of the representations and warranties in this clause 8 is deemed to be repeated by the Student on: (a) (b) (c) the date of the Loan is credited towards the Contribution; each date immediately succeeding the date on which interest is paid under this agreement in accordance with clause 5; and the date any Future Loan is credited towards Future Contributions by reference to the facts and circumstances existing on each such date. 9. COVENANTS The Student covenants with the Department, as from the date of this agreement until all liabilities under this agreement including the Loan and any Future Loan(s) have been discharged: 9.1 to deliver to the Department a copy of the Student s annual income tax assessment within fourteen (14) days of receipt by the Student; 9.2 to ensure that the Department has at all times a current correspondence address for the Student; 9.3 to notify the Department as soon as the Student has exceeded the Earning s Threshold; 9.4 promptly to provide such financial or other information as the Department may, from time to time, reasonably request relating to the Student or their income; 9.5 Until the Loan and any Future Loan(s) is/are repaid in full, to provide the Department annually (or as often as may reasonably be required) with a valid form of authority enabling the Department to obtain information relating to the Student from the income tax authority for the jurisdiction in which the Student is liable to pay tax; 9.6 promptly, after becoming aware of them, to notify the Department of any litigation, arbitration or administrative proceedings or claim of the kind described in clause to notify the Department of any Potential Event of Default or Event of Default (and the steps, if any, being taken to remedy it) promptly on becoming aware of its occurrence; and 8

11 9.8 if the Department is obliged for any reason to comply with "know your customer" or similar identification procedures in circumstances where the necessary information is not already available to it, the Student will, promptly on the request of the Department, supply (or procure the supply of) such documentation and other evidence as is reasonably requested in order for the Department to be able to carry out, and be satisfied that it has complied with, all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in this agreement. 10. EVENTS OF DEFAULT Each of the events or circumstances set out in this clause 10 (other than clause 10.9) is an Event of Default The Student fails to pay any sum payable by it under this agreement, unless its failure to pay is caused solely by an administrative error or technical problem and payment is made within three Business Days of its due date The Student fails (other than by failing to pay), to comply with any provision of this agreement and (if the Department considers, acting reasonably, that the default is capable of remedy), such default is not remedied within 14 Business Days of the earlier of: (a) (b) the Department notifying the Student of the default and the remedy required; the Student becoming aware of the default Any representation, warranty or statement made, repeated or deemed made by the Student in the Application and/or in, or pursuant to, this agreement is (or proves to have been) incomplete, untrue, incorrect or misleading when made, repeated or deemed made The Student stops or suspends payment of any of the Student s debts, or is unable to, or admits inability to, pay debts as they fall due The Student commits an act of bankruptcy as defined in Section 5 of the Bankruptcy Code 1892 or commences negotiations, or enters into any composition, compromise, assignment or arrangement, with one or more creditors with a view to rescheduling any indebtedness (because of actual or anticipated financial difficulties). 9

12 10.6 Any provision of this agreement is or becomes, for any reason, invalid, unlawful, unenforceable, terminated, disputed or ceases to be effective or to have full force and effect The Student repudiates or evidences an intention to repudiate this agreement Any event occurs (or circumstances exist) which, in the [reasonable] opinion of the Department, has or is likely to materially and adversely affect the Student's ability to perform all or any of its obligations under, or otherwise comply with the terms of, this agreement At any time after an Event of Default has occurred, the Department may, by notice to the Student: (a) (b) (c) cancel all outstanding obligations of the Department under this agreement whereupon they shall immediately be cancelled; and/or declare that the Loan and any Future Loan(s) (and all accrued interest and all other amounts outstanding under this agreement) is immediately due and payable, whereupon they shall become immediately due and payable; and/or declare that the Loan and any Future Loan(s) be payable on demand, whereupon it shall become immediately payable on demand by the Department 11. CONFIDENTIALITY 11.1 Confidential information The Department agrees to keep all information relating to the Student, this agreement and/or the Loan of which it becomes aware in its capacity as lender from the Student confidential and not disclose it to anyone other than in accordance with clause This obligation does not apply to information: (a) (b) (c) that is or becomes public information other than as a direct or indirect result of any breach by the Department of this clause 111; is identified by the Student at the time of delivery as nonconfidential; or is known to the Department before it is disclosed to the Department by the Student or is lawfully obtained by the Department from another source, in either case, through no breach of confidentiality of which the Department is or becomes aware Disclosure of confidential information 10

13 The Department may disclose: (a) (b) (c) (d) (e) to any other department statutory board or office of the Isle of Man Government (and to any of its officers, directors, employees, professional advisers and auditors), in addition to any publicly available information, such information about this agreement and/or the Student as the Department shall consider appropriate, if the person to whom the information is given is informed that it: (i) (ii) is confidential; and may be personal and/or sensitive, except that the Department does not need to inform the recipient of information disclosed pursuant to clause 11.2(a)(i) and clause 11.2(a)(ii) above, if the recipient is subject to professional obligations to maintain the confidentiality of the information; to any actual or potential assignee or transferee of its rights or obligations under this agreement (and any of their professional advisers), in addition to any publicly available information, such information about this agreement and/or the Student as the Department shall consider appropriate, if the person to whom the information is given has entered into a Confidentiality Undertaking, except that there shall be no requirement for a Confidentiality Undertaking if the recipient is subject to professional obligations to maintain the confidentiality of the information; to any person with (or through) whom it enters into (or may enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, this agreement and/or the Student in addition to any publicly available information, such information about this agreement and/or the Student as the Department shall consider appropriate, if the person to whom the information is given has entered into a Confidentiality Undertaking, except that there shall be no requirement for a Confidentiality Undertaking if the recipient is subject to professional obligations to maintain the confidentiality of the information; to its professional advisers, any governmental, banking, taxation or regulatory authority or similar body, or any other person to the extent that it is required to do so by any applicable law, regulation, court order or the rules of any relevant stock exchange, any information about this agreement and the Student and in the event of any breach of the terms of this agreement and/or default in payment of the Loan, to any agent or contractor instructed by the Department to take enforcement action and/or to any credit reference agency or equivalent body. 11

14 11.3 Consent to disclosure of confidential information The Student acknowledges that in order to provide the Loan to the Student the Department may need to verify the Student s identification and/or credit history. The Department may use third parties in order to carry out credit reference and/or identification checks or carry out such checks itself and/or may refer any unpaid debts to a credit reference or debt collection agency. The Department will only disclose the Student s data for such purposes when it is reasonably necessary and the Student hereby agrees that the Department may use the Student s data accordingly. 12. CALCULATIONS, ACCOUNTS AND CERTIFICATES 12.1 Any interest, commission or fee under this agreement shall accrue on an annual basis, calculated according to the number of actual days elapsed and a year of 365 days The Department shall maintain accounts evidencing the amounts owed to it by the Student, in accordance with its usual practice. Entries in those accounts shall be prima facie evidence of the existence and amount of the Student's obligations as recorded in them If the Department issues any certificate, determination or notification of a rate or any amount payable under this agreement, it shall be (in the absence of manifest error) conclusive evidence of the matter to which it relates. 13. AMENDMENTS, WAIVERS AND CONSENTS AND REMEDIES 13.1 No amendment of this agreement shall be effective unless it is in writing and signed by, or on behalf of, each party to it (or its authorised representative) A waiver of any right or remedy under this agreement or by law, or any consent given under this agreement, is only effective if given in writing by the waiving or consenting party and shall not be deemed a waiver of any other breach or default. It only applies in the circumstances for which it is given and shall not prevent the party giving it from subsequently relying on the relevant provision A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, prevent or restrict any further exercise of that or any other right or remedy or constitute an election to affirm this agreement. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right 12

15 or remedy. No election to affirm this agreement by the Department shall be effective unless it is in writing The rights and remedies provided under this agreement are cumulative and are in addition to, and not exclusive of, any rights and remedies provided by law. 14. SEVERANCE If any provision (or part of a provision) of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision (or part of a provision) shall be deemed deleted. Any modification to or deletion of a provision (or part of a provision) under this clause shall not affect the legality, validity and enforceability of the rest of this agreement. 15. ASSIGNMENT AND TRANSFER 15.1 The Department may assign any of its rights under this agreement or transfer all its rights or obligations by novation The Student may not assign any of its rights or transfer any of its rights or obligations under this agreement. 16. COUNTERPARTS 16.1 This agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute one agreement No counterpart shall be effective until each party has executed at least one counterpart. 17. THIRD PARTY RIGHTS 17.1 A person who is not a party to this agreement has no right under the Contracts (Rights of Third Parties) Act 2001 to enforce or enjoy the benefit of any term of this agreement. This does not affect any right or remedy of a third party which exists, or is available, apart from that Act The rights of the parties to rescind or agree any amendment or waiver under this Agreement are not subject to the consent of any other person. 13

16 18. NOTICES 18.1 Any notice or other communication given to a party under or in connection with, this agreement shall be: (a) (b) (c) in writing; delivered by hand, by pre-paid first-class post or other next working day delivery service or sent by or fax; and sent to: (i) (ii) the Student at: [ADDRESS] [ address] [fax number] Attention: [NAME] the Department at: Hamilton House Peel Road Douglas Isle of Man IM1 5EZ [ address] [fax number] Marked for the attention of the Chief Executive or to any other address as is notified in writing by one party to the other from time to time Any notice or other communication that the given under or in connection with, this agreement shall be deemed to have been received: (a) (b) (c) if delivered by hand, at the time it is left at the relevant address; if posted by pre-paid first-class post or other next working day delivery service, on the second Business Day after posting; and if sent by fax or on the next working day after transmission (in the case of fax messages, only if a transmission report is generated by the sender s fax machine confirming that the fax was successfully sent to the number indicated above and confirming that all pages were successfully transmitted). 14

17 18.3 A notice or other communication given as described in clause 18.2(a) on a day that is not a Business Day, or after normal business hours, in the place it is received, shall be deemed to have been received on the next Business Day Any notice or other communication given to the Department shall be deemed to have been received only on actual receipt. 19. GOVERNING LAW AND JURISDICTION 19.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of the Isle of Man Each party irrevocably agrees that, subject as provided below, the courts of the Isle of Man shall have exclusive jurisdiction over any dispute or claim that arises out of, or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims). Nothing in this clause shall limit the right of the Department to take proceedings against the Student in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction. This agreement has been entered into on the date stated at the beginning of it. 15

18 SCHEDULE CONDITIONS PRECEDENT 1. FINANCE DOCUMENTS This agreement, duly executed by the Student. 2. FINANCIAL INFORMATION A copy of the Student's latest Income Tax Assessment 16

19 SIGNED by the Student : SIGNED by Mr John Gill, Head of Legal and Administrative Services, a person duly authorised by the Minister for Education and Children : 17

20 18