OTHER TERMS AND CONDITIONS OF THIS LOAN CONTRACT
When is there a binding legal agreement between you and the Creditor?
We do not have to advance the Loan to you unless we are satisfied that you have met all of our preconditions.
We will not advance the Loan to you if:
there is a significant change in your financial circumstances;
you are in default under this Loan Contract;
we have not been able to satisfactorily verify your identity and address in order to satisfy our obligations under the AML/CFT Act; or
anything else changes that in our reasonable opinion makes it undesirable for us to advance the Loan to you.
Unless indicated in the Disclosure Statement, you may only draw down the Amount of Credit at one time (i.e. you may not borrow the Amount of Credit progressively).
Interest
A day shall be regarded as ending at 3 pm for the purposes of determining interest. Interest is calculated daily and will be charged on that day or at a later time if permitted by us.
Interest will be debited on the same date each month as the Loan Date. Interest is also debited to your Loan Account on the date your Loan is repaid in full and on any day your Loan becomes immediately due as a result of a default as set out in this Loan Contract.
If the Loan Date does not exist in a month (for example 31 April) interest will be debited on the last day of that month.
Repayments and fees and charges
You must make all payments on the due date.
The repayments set out in this Loan Contract assume that payments are made on time and that the Annual Interest Rate and fees and charges will not change after the Disclosure Date.
In addition to making any repayments, you must pay all fees, charges and government charges and duties specified in your Loan Contract, and, at the end of the Term, you must pay us the Amount You Owe Us, together with any fees or other costs arising on repayment
Payments due under this Loan Contract are to be made by direct debit from your bank account or such other way as we agree or specify. Acting reasonably, we may also use your authority provided under the direct debit to debit for any amount
owing to us under this Loan Contract. We can also try to debit your account in respect of an amount owing under this Loan Contract on more than one occasion. You must sign any forms required by us to effect repayments. The amount of each repayment will not include any applicable direct debit fees, or similar taxes or charges.
If any repayment is due on a date which does not exist (for example 31 April), you must make your payment on the last date of that month 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.
If any direct debit used for repayment is dishonoured, the repayment will be treated as not having been made, and interest will continue to accrue on the Amount You Owe Us until actual payment is received by us.
Mortgage and Caveat
As security for your obligations under this Loan Contract, you grant us a mortgage over your interest in the Security Property and agree, upon our request, to execute in our favour a registrable mortgage in Auckland District Law Society memorandum 2018/4344 form to be prepared by our solicitors at your cost. You acknowledge and agree that we have a caveatable interest in the Security Property under this clause and agree that we may register a caveat against the record of title for the Security Property to protect such interest.
Insurance
You must keep the Security Property insured for not less than its full insurable value as required by us against loss or damage by fire, storm, tempest, and any other risk specified by us. You must also maintain any other insurances required by us. All insurances must be with an insurer approved by us and must note the Creditor’s name as mortgagee on all policies until the Loan is repaid.
If loss or damage occurs, you agree that only we may settle any claim against the insurer and any money paid by the insurer must be paid direct to us. You will direct the insurer to make such payments to us if required. We may apply that money to repair or rebuild, in repayment of the Amount You Owe Us, or hold it as additional security for the Loan.
You must pay all insurance premiums on or before the due date and if required us, provide evidence to us of the currency of all policies relating to the Security Property. You must not do anything by which any insurance policy relating to the Security Property could be prejudiced or cancelled or be subject to an increased premium.
Things you must not do with the Security Property
For as long as we have a caveat over the Security Property you must not:
mortgage or charge the Security Property to another person or use it to secure any other Loans; or
lease or part with possession of, or give away the Security Property; or
make any alterations to the Security Property; or
do anything or allow anything to happen that might reduce the value of the Security Property,
without first obtaining our permission in writing.
You must not use the Security Property, or allow it to be used, for any illegal or offensive purpose.
Default
When there is default
If any one or more of the following occur we may decide default has occurred. You must ensure default does not occur.
You fail to make payment of any of the moneys payable under this Loan Contract at the expiry of the Term (time being strictly of the essence);
There is default of any term or condition of this Loan Contract;
There is default under any charge or other security given for this Loan Contract;
You fail to pay any person (including us and/or other banks etc.) any money by the due date;
Any representation made by you to our agents or us proves to be untrue or misleading;
You become bankrupt or are considered by us acting reasonably to be insolvent;
You breach any material undertaking given at any time to us.
Our rights on default
If you are in default, after any reasonable grace period:
we may give you a notice stating that you are in default; or
if we have made reasonable attempts to locate you without success; and
if the default is not corrected within any period given in the notice or required by law (or if you are in default again for a similar reason at the end of that period), then, at the end of that period and without further notice to you, we demand that all money payable to us immediately due for payment and demand the immediate repayment by you of that amount (although we would normally give notice of our intention to do this, in some cases the law does not require us to provide such further notice).
We can exercise these rights with or without taking possession of the Security Property. If we hold more than one Security Property as security for the Loan, we can enforce any one of the securities or all of them at the same time.
You agree that we may lodge notice of any default by you under this Loan Contract with any credit reporting agencies operating in New Zealand.
Default Interest
Interest debited to your Loan at the Default Interest Rate will be added to the Amount You Owe Us and accrue interest at the same rate and in the same manner as the principal of your Loan.
Enforcement expenses
Enforcement expenses may become payable under the Loan Contract if you default. You must pay on demand and we may debit your Loan Account with our costs in connection with any exercise or non-exercise of rights arising from any default, including:
all legal costs and expenses;
other agent or adviser fees; and
our internal costs.
These expenses include our expenses incurred in preserving or maintaining the Security Property, removal of any caveat or discharge of mortgage, collection expenses, any disbursements incurred and expenses resulting from dishonour of a payment.
For the purposes of the CCCFA, these costs will not exceed our reasonable enforcement expenses including internal costs.
General matters
Payments
You must make payments without deducting or setting off any money you think we owe you for any reason. You must pay to us on demand all taxes payable (including any GST) and any government charges and duties on receipts or withdrawals relating to your Loan. We may debit your Loan Account with these items as incurred.
Certificate of amount payable
A certificate signed by or on behalf of us as to an amount payable to us is conclusive and binding on you. In making any decision we will act reasonably.
How we can deal with this Loan Contract
We may assign or otherwise deal with your rights under this Loan Contract in any way we decide (acting reasonably). We may disclose personal and credit information about you in connection with any proposed assignment or other dealing. You must sign anything and do anything we reasonably require to enable any dealing with this Loan Contract. Of course, any dealing with our rights does not change your obligations under this Loan Contract in any way.
CCCFA
To the extent that this Loan Contract is regulated under the CCCFA, any provisions which do not comply with that legislation have no effect, and to the extent necessary, this Loan Contract 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.
Agent and Agency Agreement
We do not pay the Agent a commission for referring you to us. However, we reserve the right to pay a commission to another introducer, such as a broker. Any such commission will be added to and included as part of the Total Advances.
You must provide us with a copy of the Agency Agreement, which must be acceptable to us, prior to us making the Initial Advance.
You authorise the Agent to provide us with any information about you and your property as we may request for the purposes of the Loan which shall include (without limitation) the sale and purchase agreement for the Property, any intention of the purchaser to release the deposit for the sale of the Property early, a withdrawal of the property from sale or cancellation of the sale and purchase agreement for the Property by any party. You further authorise us to provide a copy of this Loan Contract to the Agent as evidence of the authority referred to in this clause.
Sale of Property
You must provide us with the name and contact details of your solicitor or conveyancer prior to us making the Initial Advance.
You will irrevocably instruct your solicitor, conveyancer or Agent to pay us the Amount You Owe Us from the proceeds of sale of the Property upon settlement of the sale. You irrevocably authorise us to provide a copy of this Loan Contract to your solicitor, conveyancer or Agent as written evidence of you making this instruction. Such provision by us will be deemed to be the giving of such instruction.
Attorney
Subject to any applicable law, you appoint us as your attorney (with power to appoint substitutes) to execute all documents and do everything which you must do under this Loan Contract.
You must not revoke this power of attorney until you have paid us all amounts you owe under this Loan Contract. If we ask you to, you must ratify anything which we do when exercising this power of attorney.
Electronic signature
You
agree that we may rely on the electronic signature(s) as having the same force and effect as handwritten signature(s); and
unconditionally consent to any method used by us (at our discretion, acting reasonably) to identify the signatories and to confirm your intention to enter into a binding legal agreement.
General
If there are two or more of you, each of you is individually liable, and all of you are jointly liable. A reference to a person includes companies and trusts and any other kind of body. Singular words include plural words and vice versa.
Trusts
If you are signing this Loan Contract as trustee of a trust, you warrant and undertake that you have the authority to bind and sign on behalf of the trust and any trustees of the trust who have not signed this Loan Contract.
If you are entering into this Loan Contract in the capacity of a professional trustee your liability will not be personal and is limited to the extent of the assets of the trust.
Special Conditions
In the event of any inconsistency between these Other Terms and Conditions and any Special Conditions, such Special Conditions shall prevail.
DEFINITIONS USED IN YOUR LOAN CONTRACT
Agent means the real estate agent that you appoint to sell the Property.
Agency Agreement means the agreement between you and the Agent giving the Agent the right to market and sell the Property for an exclusive period.
AML/CFT Act means the Anti-Money Laundering and Countering Financing of Terrorism Act 2009.
Amount You Owe Us means the total amount outstanding under your Loan from time to time and includes all interest, fees and charges.
Business Day means a day that is not a Saturday or Sunday when banks are open for business in Auckland.
CCCFA means the Credit Contracts and Consumer Finance Act 2003 and its regulations.
Disclosure Date means the date at the top of the Disclosure Statement.
GST means goods and services tax payable under the Goods and Services Tax Act 1985.
Loan means the loan we have offered to you on the terms and conditions of your Loan Contract.
Loan Account means the loan account that we set up in your name in respect of your Loan Contract.
Loan Contract means this document incorporating the Disclosure Statement and these Other Terms and Conditions of this Loan Contract.
Loan Date means the date we make the Initial Advance to you under this Loan Contract.
Property Styling Service means property staging, styling and pre-sale refurbishment services for the purpose of maximising the sale price of a property.
Security Property or Property means the Security Property described in the Disclosure Statement.
We, us, our means the Creditor.
You, your means the Borrower.