This Loan Agreement is entered into on the date shown before the signatures below.
BETWEENProperty Credit Pty Limited(NZCN 8483949) (together with its successors and assigns), called “the Creditor”, “we” or “us”,
AND[Borrower name(s)], together with their executors and administrators), called “the Borrower” or “you”.
The Loan Agreement is made up of:
this General Acknowledgement and Agreement;
your Loan Schedule;
the Standard Terms and Conditions (incorporating, if applicable, the Memorandum of Mortgage registered at Land Information New Zealand under No. 2018/4346); and
any ancillary or related documentation that may be required for your particular loan arrangement, including any variations
each a Loan Document and together the Loan Documents.
In the event of any inconsistency or contradiction between any of the Loan Documents, then they shall, to the extent of such inconsistency or contradiction, take priority in the order in which they appear in the list above.
GENERAL ACKNOWLEDGEMENT AND AGREEMENT
You acknowledge having received copies of the Loan Documents, prior to entering into the loan arrangement contemplated under these documents. You also acknowledge that you have had the opportunity to take legal advice on whether or not to enter into this Loan Agreement, and that you either have done so or are choosing not to take legal advice.
You acknowledge that on the Initial Drawdown Date, following receipt of the Initial Advance set out in section 3 of your Loan Schedule (Credit Details), you will owe us the Initial Unpaid Amount set out in that section.
You accept to take a loan on the terms and conditions set out in the Loan Documents and, including for the purpose of initial disclosure under the Credit Contracts and Consumer Finance Act 2003, acknowledge receipt of copies of the Loan Documents (including your Loan Schedule and our Standard Terms and Conditions).
You promise to repay all amounts owed to us under the Loan Agreement, plus interest, in accordance with sections 4 (Payments) and 5 (Interest Rate) of your Loan Schedule, to pay any other fees and charges set out in the Loan Documents which you may incur in certain circumstances, and otherwise to comply with the terms and conditions of the Loan Agreement.
EXECUTION
Date Received:
[Date]
Signature(s) of Borrower:
—Signature—
Signature(s) of Creditor
—Signature— On behalf of Property Credit Pty Ltd as Creditor
LOAN SCHEDULE
Disclosure Date:[Date]
This document sets out the key information about your Loan Agreement. You should read it thoroughly. If you do not understand anything in this document, you should seek independent advice. You should keep this Loan Schedule and copies of all other Loan Documents, and any other relevant documents, in a safe place.
Under the Loan Agreement, we agree to lend, and the Borrower accepts, a loan of moneys in the amount and on the terms and conditions set out in the Loan Documents. The Borrower agrees to comply with all terms and conditions set out in the Loan Documents.
The Loan Purpose is to finance your costs associated with the sale of the Property. This type of lending arrangement is sometimes known as a “bridging loan” as the lending is intended to be repaid from the proceeds of sale of the Property.
FULL NAME AND ADDRESS OF THE CREDITOR:
You may send notices to us by: Writing to us at the postal address provided here, or handing a written notice to one of our employees or agents; orSending an email to us at the address specified here.
Name: Property Credit Pty Ltd Physical Address: Unit 6, 5 Executive Drive, Burleigh Waters, Queensland, 4220, Australia. Postal Address: PO Box 2667, Burleigh BC, Queensland, 4220, Australia. Email: support@property.credit
FULL NAME AND ADDRESS OF THE BORROWER:
We may send notices to you by: Writing to you at the postal address(es) provided here; orSending an email to the e-mail address(es) specified here.
This is the amount you owe as at the Disclosure Date, and/or will owe after the Initial Drawdown Date (including any fees charged by the Creditor).
The Initial Unpaid Amount ($[amount]) is made up of the amounts to the right. This is the total amount you owe us at the Disclosure Date, and/or will owe after the Initial Drawdown Date (including fees charged by the Creditor).
$[amount] being the Initial Advance; and $[amount] being the Establishment Fee. The requested Initial Drawdown Date is [Date].
Subsequent Advance(s) (if applicable):
If we agree that you may request a Subsequent Advance(s) from us from time to time during the Loan Term, you may do so at any time after the Initial Drawdown Date. You may not request any Subsequent Advance(s) which would cause the Total Amounts Owing to exceed the limit of the Credit Limit we have agreed with you, set out here (unless we subsequently agree to vary the Credit Limit).
PAYMENTS REQUIRED
You are required to repay the Total Amounts Owing by:
– The date upon which the Property is withdrawn from the market or, once listed as contemplated in clause 7(e) of the Standard Terms and Conditions, is no longer listed on one or more of the TradeMe, OneRoof or realestate.co.nz platforms; or – one (1) working day after the date that the Property sale is completed, or you are no longer the registered proprietor on the title of the Property; or – the date falling six (6) calendar months after the Initial Drawdown Date, whichever is the earliest (the Repayment Date).
Your Repayment Date is a maximum of six (6) calendar months after the Initial Drawdown Date. The period between the Initial Drawdown Date and the Repayment Date is the LoanTerm.
If you want to repay the Total Amounts Owing before the Repayment Date, you need to give us at least one (1) month’s notice.
In no event can the Loan Term exceed six (6) calendar months in duration.
Based on an Initial Drawdown Date of [[Date] – refer to section 3], and assuming there are no Subsequent Advance(s) and a Loan Term of six calendar months, the Total Amounts Owing to be repaid on the Repayment Date will be $[amount], made up as follows:
Initial Unpaid Amount (Initial Advance and Establishment Fee): $[amount] Any Applicable Security Interest Lodgement Fee: $[400.00]
[Drawdown Fee(s): $[amount] Estimated Accrued Interest Charges, assuming a Loan Term of six months: $[amount]
ANNUAL INTEREST RATE AND INTEREST CHARGES
Annual Interest Rate for the Loan Agreement Interest will accrue on the Initial Advance and any Subsequent Advances at a rate of [INTEREST RATE]% per annum.
Interest Charges Interest will be calculated at the end of each calendar month after the Initial Drawdown Date. These Interest Charges will not fall to be repaid immediately but will be repayable as part of the Total Amounts Owing on the Repayment Date. Based on the amount of the Initial Advance, each monthly Interest Charge will be in the amount of $[Amount] (although the monthly Interest Charge for the first month may be less), and the total amount of interest payable under the Loan Agreement, assuming a Loan Term of six months, is estimated to be $[Amount]. That amount will change if there are any Subsequent Advance(s).
End of the Day For all purposes of calculating interest under this Loan Agreement, the day ends at 4.00pm.
PROPERTY AND REAL ESTATE AGENCY
Property The address of the Property to be used as security under the Loan Agreement is: [TEST ADDRESS New Zealand].
Real Estate Agency The real estate agency the Borrower has appointed to sell the Property is: Name: [e.g. Agency Ltd] Postal Address: [Agency Address]
BANK ACCOUNTS
Creditor’s Nominated Bank Account The nominated bank account for the Creditor is: Bank / Branch Code: 0XXXXX Account Number: 0X XXXXX 00
Borrower’s Nominated Bank Account The nominated bank account for the Borrower is: Account Name: [TEST BORROWER] Account Number: [0X XXXXX XX]
CONTINUING DISCLOSURE
You agree that we will meet our continuing disclosure obligations under sections 18 and 19 of the Credit Contracts and Consumer Finance Act 2003 (CCCFA) by making the information required by section 19 (as applicable to the Loan Agreement) available to you on our secure website, rather than sending you separate periodic statements. For the purposes of section 21(1)(b) CCCFA, you consent to that information being disclosed to you in this way. We will maintain our website at all reasonable times and will ensure that it allows you to access that information for any reasonable statement period you specify.
CREDIT FEES AND CHARGES
The following credit fee(s) and charge(s) are, or may become payable under or in connection with, the Loan Agreement:
Drawdown Fee: if we have agreed that you may apply for a Subsequent Advance or Subsequent Advances during the Loan Term, and we agree, you will be charged a Drawdown Fee for each Subsequent Advance. [Based on the Credit Limit under this Loan Agreement, any Drawdown Fee(s) may be up to, but will be no more than, $[amount].]
Establishment Fee: [AMOUNT] as set out in section 3 (Credit Details) which is to be paid on or before the Disclosure Date.
Government Charges Fee: You agree to pay any costs we reasonably incur in respect of any government charges or duties in connection with this Loan Agreement (irrespective of whether you are primarily liable for them or not). These are to be paid when we notify you that we have incurred them.
Security Interest Lodgement Fee: if we lodge a caveat or mortgage with Land Information New Zealand pursuant to the Loan Agreement, you will be charged a Security Interest Lodgement Fee in respect of the cost of registration. As at the Disclosure Date, the amount of the Security Interest Lodgement Fee is $[400.00] per lodgement. This is to be paid on the date of lodgement of any relevant security.
Administrative Fee for Early Prepayment: [AMOUNT]
We may vary our fees during the term of the Loan Agreement by written notice to you in accordance with the Act.
FULL PREPAYMENT
If you repay the Total Amounts Owing in full before Repayment Date (Full Prepayment), you may be required to pay an administrative fee. More information is set out in our Standard Terms and Conditions (clause 4). You should get in touch with us at least one (1) month in advance if you are thinking about making a Full Prepayment, so that we can help you to make an informed decision.
RIGHT TO CANCEL
The law gives you a limited right to cancel the Loan Agreement. You will find a description of your right to cancel and how you can exercise it, in our Standard Terms and Conditions (clauses 1.3 and 1.4). Note that strict time limits apply, after which this right will expire.
SECURITY
Agreement to Mortgage You agree to grant us an “all obligations” mortgage over the Property (referred to in section 6 above), incorporating the terms of the Memorandum of Mortgage registered with Land Information New Zealand under No. 2018/4346, into the Loan Agreement with a priority sum of [AMOUNT]. We will therefore have a contractual caveatable interest in the Property as security for your performance of your obligations under the Loan Agreement. The Loan Agreement will then become a secured credit loan.
We May Register a Caveat and/or Registered Mortgage We may at any time and without notifying you lodge a caveat on the Record of Title for the Property(referred to in section 6 above), as security for your obligations under the Loan Agreement. If we lodge a caveat over the Property, you will not be able to sell the Property without our prior consent until the caveat has been removed. You are granting us a mortgage over the Property (referred to in section 6 above)with Land Information New Zealand, on the terms set out here and in Memorandum of Mortgage No. 2018/4346. If we register a mortgage over the Property, this will provide us with additional rights and remedies if we have to take steps to enforce our rights under the Loan Agreement. More information is set out in section 13 (What Could Happen If You Fail to Meet Your Commitments).
WHAT COULD HAPPEN IF YOU FAIL TO MEET YOUR COMMITMENTS
Default Interest Charges If you default on a scheduled repayment, or fail to pay any other amount under the Loan Agreement when due, we may charge Default Interest Charges on the relevant amount until the default is remedied.
The Default Interest Rate is [RATE%] per annum. This amount would be charged in addition to the amount you have failed to pay when due, and would apply instead of the normal Interest Rate until the default is resolved. We may vary the Default Interest Rate from time to time by written notice to you in accordance with the Act.
Default Fees If you fail to pay any amount owing under the Loan Agreement when due, we may charge a Default Fees. As at the Disclosure Date, these Default Fees are: Payment Dishonour Fee: $30.00. Enforcement Fees: $[AMOUNT] You agree to pay any costs we incur or losses we suffer as a result of our exercise of rights under the Loan Documents, in the event of breach. This may include fees for legal or other services, collection costs and any other expenses incurred by us (including such amounts paid to third party contractors) in enforcing our rights and exercising our remedies under the Loan Documents.
Repossession and Sale of Property If we lodge a caveat over the Record of Title to the Property, you would not be able to sell or dispose of the Property without our consent. If we have to enforce our rights under the Loan Agreement, where we have registered a mortgage over the Property (including if you grant another mortgage to someone else without our consent), such enforcement may include taking possession of and selling the Property. The sale proceeds would then be used to settle any other amounts which you owe us. In the event of a surplus following such a sale, the surplus would first go towards satisfying the claims of any other creditors as required by law, but any remaining moneys following satisfaction of those claims would be returned to you. If you still owe us money following a sale of the Property, we will be entitled to recover the balance from you. Please take note of these potential consequences before granting the mortgage to us as security for your obligations under the Loan Agreement. You agree not to grant any mortgage or charge or security interest over the Property having priority subsequent to the mortgage given in relation to this Loan Agreement without our prior written consent. If you do this, it will likely mean that the Property is liable to repossession.
WHAT TO DO IF YOU SUFFER UNFORSEEN HARDSHIP
If you are unable reasonably to keep up your payments or other obligations because of illness, loss of employment, the end of a relationship, or other reasonable cause, you may apply to us for a variation on the basis of unforeseen hardship. You can find a description of your rights concerning such applications, and how to make one, in our Standard Terms and Conditions (clause 8).
DISPUTE RESOLUTION
Name of dispute resolution scheme: Financial Services Complaints Limited It is free to make a complaint to this independent dispute resolution scheme. This scheme can help you resolve any disagreement you have with us. Details of the Dispute Resolution Scheme: Phone: 0508 337 337 Website: https://fdrs.org.nz/ Business address: Level 4, 142 Lambton Quay, Wellington, 6011.
REGISTRATION ON FINANCIAL SERVICE PROVIDERS REGISTER
We are registered as a financial service provider under the Financial Service Providers (Registration and Dispute Resolution) Act 2008, under registration number FSP1003655 and under the name Property Credit Pty Limited.
STANDARD TERMS AND CONDITIONS FOR CONSUMER LOANS
OUR LOAN TO YOU
We agree to lend to you and you agree to borrow from us the Advance(s) on the terms and conditions set out in the Loan Documents.The Loan Agreement shall commence on the date of the General Acknowledgement and Agreement and continue until such time as you have repaid the Total Amounts Owing.You may cancel the Loan Agreement within seven (7) working days after the date on which the signed General Acknowledgement and Agreement and other Loan Documents are e-mailed to you, provided you comply with the following process:
you must give written notice that you wish to cancel the Loan Agreement, either by sending it to us via post or e-mail (at the addresses set out in section 1 of your Loan Schedule (Full Name and Address of the Creditor), or by giving it directly to one of our employees or agents; andthe notice must be provided within seven (7) working days from the date that you digitally sign the Loan Schedule.
If you cancel the Loan Agreement, we can recover from you our reasonable expenses incurred in connection with the Loan Agreement and its cancellation (including legal fees and fees for credit reports, etc.), if any. You will also remain liable for any interest accruing in the period from the day you received the Initial Advance until the Total Amounts Owing at the relevant time is returned to us.
OUR RELIANCE ON THE INFORMATION YOU HAVE PROVIDED US
You confirm to us that, as at the date of this Loan Agreement:
the information that you have provided us, whether we have requested that information or not, is true and correct;you are not aware of any fact or circumstance that could materially change your circumstances and which could affect your ability to meet your obligations under the Loan Agreement;the information you have provided to us is not misleading or deceptive, fraudulent or incomplete;your identity and address have been satisfactorily verified in order to satisfy our obligations under the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (AML/CFT Act); andthe Advance(s) will only be used for the Loan Purpose (unless we otherwise agree in writing).
You acknowledge that we:
have relied, and continue to rely, upon the information which you have provided to us in assessing your loan application and in determining how much we lend to you; andhave adopted a set of responsible lending principles, a copy of which is on our website at www.propertycredit.co.nz, so as to ensure that you will be able to meet your obligations under the Loan Agreement.
You confirm that to the best of your knowledge, at the time of entering into the Loan Agreement, you have not done, and agree that you will not do, anything that might put us in breach of our obligations under the AML/CFT Act. You undertake to notify us immediately if you become aware of anything that you consider may put us in breach of such laws. If you would like further information as to what you should be aware of in terms of compliance with this clause and the AML/CFT Act, please contact us.You agree to maintain a mobile telephone number and an email address for the duration of the Loan Agreement and keep them current and notify us of any changes before they become effective. You must not change your name, address, mobile telephone number or email address without first giving us five (5) working days’ written notice of your intention to do so together with the replacement name, address, mobile telephone or email address. We may communicate with you at any address, email address or telephone number that you provide, and will use any preferred channel of communication that you have indicated to us, unless it is impractical to do so.You consent to all continuing disclosure which we are required to provide to you under the Act being provided to you by way of us maintaining (at all reasonable times) a website that allows you to access such information for any reasonable statement period you specify.
The Consumer Guarantees Act 1993 is applicable to the Loan Agreement
YOUR REPAYMENTS
What and When You Must Pay
Subject to clause 4.1, you agree to make payments at the times and in the amounts set out in section 4 of your Loan Schedule (Payments). This includes the repayment of the Initial Unpaid Amount, any Subsequent Advance(s), the Interest Charges and all other fees and charges you are required to pay under the Loan Documents as specified in your Loan Schedule (including Default Fees, if applicable) until the Total Amounts Owing are repaid in full.
You must pay us the Total Amounts Owing in full on or before the Repayment Date.
All repayments must be made in full by you, without deduction or set-off for any amount we owe you or you believe we may owe you.
A certificate signed by, for, or on behalf of us, stating the amount of the Advance(s) you have drawn down, the Total Amounts Owing, or any other amounts owing under the Loan Agreement at the date mentioned in such certificate, shall, subject to the requirements of the Act, and except in the case of manifest error, be conclusive evidence against you that the amount so stated is the relevant amount due or payable under the Loan Agreement as at the date mentioned in the certificate.
If for any reason you fail to make a payment in full on or before the Repayment Date (or otherwise by the due date for payment), you may incur additional fees and charges, as set out in section 13 of your Loan Schedule (What Could Happen If You Fail to Meet Your Commitments) and in clause 6 below.
How You must Pay
You may make payments of amounts due under this Loan Agreement by direct debit or direct deposit.
If a direct debit is dishonoured by your financial institution, the repayment will be treated as not having been made by you and you shall be in default under the Loan Agreement.
We do not accept payments by cheque, cash or credit card.
How we will apply your repayments
We will apply any payments to your Borrower Nominated Account in accordance with section 4 of your Loan Schedule (Payments).
If you have more than one loan contract with us and you make a payment without telling us in advance and in writing to which loan contract the payment is to be applied, we can apply it to any of your loans as we decide, acting in accordance with the lender responsibility principles referred to in clause 2.2 above.
To the fullest extent allowed by law, we may from time to time without notice deduct any debt owed by you or claim or demand which we may have against you from any claim or demand which you may make against us.
PREPAYMENTS
You may prepay any part of the Total Amounts Owing at any time before the Repayment Date. The amount prepaid will be subtracted from the Total Amounts Owing. We will notify you if, and if so and how, your obligation to make the repayments on the dates and in the amounts due as set out in section 4 of your Loan Schedule (Payments) will be affected by any such early part prepayment.
If you make a Full Prepayment, we may charge you an administrative fee
SUBSEQUENT ADVANCES
If we have agreed that you can request a Subsequent Advance or Subsequent Advances during the Loan Term, you may submit a signed request to us for a Subsequent Advance (either online or by completing and emailing us a scanned copy of the form), providing us with the following:
the amount of the Subsequent Advance;the date you require the Subsequent Advance to be paid (which must be at least two (2) working days after the date of the request);the reason for the request;evidence as to how the Subsequent Advance will be applied (such as a quote);directions on who you would like us to pay the Subsequent Advance to (if not to be paid into your Borrower Nominated Account); andany other information or confirmation we request, noting that after you provide us with the above information, we will send you a summary of the relevant particulars for a Subsequent Advance, including applicable fees and charges, for your final approval before you sign a confirmation of request and we allow drawdown of the requested Subsequent Advance.
We will consider each request for a Subsequent Advance on a case by case basis. We expect to grant a request unless we consider, in our sole discretion, that there is reason not to grant it (for example, if we determine that we should decline it in order to remain in compliance with responsible lending principles). We recommend you get in touch with us at least five (5) working days before you intend to draw down a Subsequent Advance (assuming we approve it).
HOW OUR FEES AND CHARGES AFFECT YOUR LOAN
Interest Charges
Interest Charges will be calculated at the end of each calendar month, starting from the Initial Drawdown Date. Interest Charges will be calculated to 5 decimal places by applying the Interest Rate to the Total Amounts Owing at the relevant time and dividing by 12. The Interest Charge at the end of each calendar month during the Loan Term will not fall to be repaid at that time but will be capitalised and added to the Total Amounts Owing. Interest Charges will accrue up to and including the Repayment Date, or the date on which the Total Amounts Owing are repaid in full, if later (see clauses 6.2 and 6.6 below).
If you are in default under the Loan Agreement, we may debit your Borrower Nominated Account directly for amounts up to the Total Amounts Owing at the relevant time, including Default Fees and Default Interest Charges.
Fees and Charges
There are certain fees and charges that you must pay under the Loan Agreement. In addition, there are certain fees and charges that you may have to pay if certain events arise during the Loan Term. These fees are described in more detail in in section 4 of your Loan Schedule (Payments) and in clause 6.4 below. All fees and charges will be added to the Total Amounts Owing and must be paid at by the Repayment Date (or otherwise by the due date(s) for payment).
You must pay, and where you are in default we may debit your Borrower Nominated Account for:
our credit fees and charges set out in section 9 of your Loan Schedule (Credit Fees and Charges) and any changed or new fees or charges notified to you, in accordance with clause 6.9;any Default Fees (the default events being as set out in clause 7); andany Government Charges Fee(s) for costs relating to government charges and duties which we incur in relation to your Loan Agreement.
It is your responsibility to pay the fees described in clause 6.4 when incurred from time to time. If you require further information on the fees you have incurred or may incur, please contact us.If you do not repay the Total Amounts Owing by the Repayment Date, we may charge Default Fees and Default Interest Charges until you have repaid the Total Amounts Owing.The fees and charges set out in your Loan Schedule are current as at the Disclosure Date.All fees payable under the Loan Agreement are non-refundable, except where such fees are payable to a third party and ascertained at a later date, and are less than the original amount charged to or paid by you, in which case we will refund or credit the difference to you.
We may vary the credit fees and charges set out in section 9 of your Loan Schedule (Credit Fees and Charges) or introduce new ones during the Loan Term, to reflect any changes to the costs we are likely to incur in relation to the matter giving rise to the relevant fee or charge by notice in writing to you within five (5) working days of the day on which the change is to take effect.
WHAT CONSTITUTES DEFAULT
You will be in default under the Loan Agreement if any of the following apply to you:
you do not pay on time and in full any amount due under this Loan Agreement;you breach any of the other terms or conditions of this Loan Agreement or any undertaking you have given to us;any information or representations made by you to us is untrue or misleading;you die, become bankrupt or commit an act of bankruptcy or are jailed;you do not list the Property for sale within 15 working days of the Initial Drawdown Date on one or more of the TradeMe, OneRoof or realestate.co.nz platforms, and keep it listed on that or those platforms;if you have granted to us a mortgage or any other right, title or interest or security interest over the Property, you do anything which constitutes a default under the mortgage terms and conditions incorporated into the mortgage referred to in this Loan Agreement or such other right, title or interest or security interest;if, in our opinion, any event or circumstance arises causing a materially adverse change in your financial situation likely in our view to affect your ability to meet your obligations under this Loan Agreement or any security. For these purposes, a material adverse chance includes, but is not limited to, your death, your insolvency, your imprisonment, the enforcement proceedings by any creditor against you or the Property, any reduction in the value of the Property, any insurance over the Property being cancelled or declined, or any information supplied by you or on your behalf to us in connection with this Loan Agreement or any security for this Loan Agreement being found to be untrue, incorrect or incomplete; oryou breach any material undertaking, confirmation, warranty or promise you have given at any time to us.
WHAT HAPPENS IF YOU ARE IN DEFAULT
If at any time you are in default (as described in clause 7 above) we will contact you to notify you of the default. If we do not receive an Unforeseen Hardship Application from you and/or the default has not been rectified within five (5) working days of the date of our notice, or if we have declined to vary the terms of the Loan Agreement after considering an Unforeseen Hardship Application from you (or we have declined to consider a further Unforeseen Hardship Application from you, in circumstances where you have already made a Unforeseen Hardship Application to us within the previous four (4) months for materially similar reasons), we may take any of the following actions:
call up the remainder of the Total Amounts Owing, even if the time for payment has not yet been reached; exercise any right, power or privilege conferred by any law, under the Loan Agreement or any security; and/or terminate the Loan Agreement.
We can take action, even if we do not do so promptly after the default occurs, provided that the default remains and notice has been given pursuant to clause 8.1.
If you default on paying any amount owed under this Agreement by the due date for payment, we may, in addition to our other remedies, list the unpaid debt with one or more collection agencies and instruct them to initiate or continue recovery proceedings on our behalf, or credit reporters.
Unforeseen Hardship Applications
To make an Unforeseen Hardship Application, you need to:
set out in writing the unforeseen circumstances that have arisen and your reasons for making the application; and
request an extension of the term of the contract (which will reduce the amount of each payment due under the Agreement) or the postponement of the dates on which payments are due under the Agreement (specifying the period for which you want this to apply) or both; and
give the written application to us by providing it to an employee or agent of ours, or sending it to us by e-mail or post at the addresses set out in section 1 of your Loan Schedule (Full Name and Address Of The Creditor).
If you submit an Unforeseen Hardship Application to us within five (5) working days of the date of a notice from us under clause 8.1, then we will consider the Unforeseen Hardship Application in accordance with our lender responsibilities and other obligations under the Act.
We may only be able to change the terms of the Loan Agreement if we believe the changes you want are fair and reasonable given the hardship you are experiencing. Even if we do not change the Loan Agreement, we can give you support and information to help you get back on track. Support available includes giving you details of financial mentoring services.
You are recommended to contact us as soon as possible if you are having or think you will have problems meeting your payment obligations. We may have extra requirements if you have already missed some of your required payments, if we have already sent you a notice under the Property Law Act 2007 asking you to pay us money you owe, or you have made a previous Unforeseen Hardship Application in the recent past. We will not be required to consider an Unforeseen Hardship Application if you have already made one within the then-previous four (4) months for materially similar reasons.
Default and Enforcement Expenses
If you are in default, we may charge Default Fees and Default Interest Charges (at the rate specified in section 13 of your Loan Schedule (What Could Happen If You Fail to Meet Your Commitments)). Both Default Interest Charges and Default Fees shall continue to accrue and be payable by you, and we may debit your account for such amounts, after the Repayment Date (if you have not repaid the Total Amounts Owing) and notwithstanding judgment being entered against you.
In addition to any other Default Fees and Default Interest payable by you under clause 8.8, if you are in default you must pay on demand (and we may debit your Borrower Nominated Account for) Enforcement Fees.Any Enforcement Fees will not exceed the reasonable enforcement costs actually incurred by us in connection with your default. If we have charged you Enforcement Fees which later turn out to exceed the costs we have relevantly incurred, we will refund or credit the difference to you.
If you default under this Loan Agreement, we may elect not to charge Default Fees at that time. However, we reserve the right to charge Default Fees at a later time, including after the Total Amounts Owing is repaid in full.
DEALING WITH PERSONAL INFORMATION
You irrevocably authorise any person to provide us with such information as we may request as part of the administration and enforcement of this Loan Agreement and further irrevocably authorise us to provide to any third party any information we may hold about you for the purposes of such administration and enforcement. We acknowledge that in requesting any such information we shall comply with the lender responsibility principles referred to in clause 2.2 above.
You consent to the personal information provided by you in support of your application for the Loan Agreement and/or obtained by us from time to time being held by us and used by us for the administration and enforcement of the Loan Agreement and for supplying you with information about services offered us.
You acknowledge our privacy policy available on our website at www.propertycredit.co.nz.
ELECTRONIC COMMUNICATIONS
You agree to accept communications from us by the electronic methods specified in your Loan Schedule as part of your address details. Any notice or other communication for service on you shall be deemed to be properly served, in any court proceeding or otherwise, if forwarded to any email address, to any mobile telephone number by text message or any other information system provided by you to us (whether or not in your Loan Schedule) or (whether or not provided by you to us publicly or in Internet social media (such as, without limitation, Facebook, Skype or TradeMe) as being a method by which you may be communicated with and that electronic address or number shall be an information system specified by you for the purpose of service of such communication.
We will accept communications from you by the electronic methods specified in your Loan Schedule as part of our address details and not by any other electronic method unless acknowledged electronically by physical action of our staff or non-electronically in writing by us or unless we have formally agreed to the use of such other method. In all communications with us, you must specify your loan number (if any) to enable us to properly identify you.
SECURITY AND INSURANCE
This clause describes the security for the Loan Agreement.
Agreement to Mortgage
The Loan Agreement constitutes an agreement to mortgage.
Each of you that are an owner of the Property agrees to grant a mortgage on the terms specified in section 12 of the Loan Schedule (as varied from time to time) over the Property:
where section 12 of your Loan Schedule (Security) specifies that a registered mortgage is required, you authorise and instruct us to register in our favour, on the terms set out in that section, an “All Obligations” mortgage over the Property; and
where section 12 of your Loan Schedule (Security) specifies that a caveat may be or is required, you are required to sign, and irrevocably provide to us and permit us to hold until the Total Amounts Owing are repaid in accordance with this Loan Agreement, an Authority and Instruction form for Private Individual Client for an electronic transaction (in the form approved by the New Zealand Law Society and the Registrar-General of Land) authorising and instructing us to have registered in our favour, on the terms set out in section 6, an “All Obligations” mortgage over the Property.
All Obligations Mortgage
The mortgage you grant or agree to grant under clause 11.3 is given as security for all your financial obligations to us, both now and in the future. The covenants, conditions and powers that apply to each mortgage that you give or agree to give us are those:
implied in mortgages of land by Part 1 of Schedule 2 of the Property Law Act 2007 (the “Implied Covenants”); andset out in Memorandum No. 2018/4346, the text of which has been provided to you prior to your entry into the Loan Agreement, and will be available on our website via your online portal at [hyperlink].
If there is any conflict between any provision(s) of the Loan Documents, Memorandum No. 2018/4346, and the Implied Covenants, then:
the provisions of the Loan Agreement and Memorandum No. 2018/4346 shall take precedence over the Implied Covenants, which shall be deemed to be varied, amended or negatived accordingly; and
in the event of a conflict between the express terms of Memorandum No. 2018/4346 and a Loan Document or Loan Documents, the Loan Document(s) shall take precedence and the relevant terms in Memorandum No. 2018/4346 shall be deemed to be varied, amended or negatived accordingly.
Prior and Subsequent Mortgages
Each person agreeing to grant a mortgage under clause 11.3 promises us that there are no other mortgages over the Property to any other person, or if there are, that these have been disclosed to us.
If we consent to any other mortgage having priority over the mortgage, you must comply in all respects and perform all your obligations under the prior mortgage, except as may be necessary in order to enter into this Loan Agreement.
Your Obligation
You agree not to grant any mortgage or charge or security interest having priority subsequent to the mortgage given in relation to this Loan Agreement without our prior written consent. If we consent to any mortgage or charge or security interest having priority subsequent to the mortgage given in relation to this Loan Agreement, you agree before any such mortgage or security interest is registered to enter into, and to procure the subsequent mortgagee to enters into, documentation satisfactory to us confirming that we retain priority on the terms that we require.
Insurance
You must keep the Property insured for not less than the full insurable value as required by us against loss or damage for fire, storm, tempest and other risks specified by us. You must also maintain any other insurance is 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 all amounts owed to us are repaid.
GENERAL MATTERS
The Loan Agreement is governed by New Zealand law and the parties irrevocably submit to the jurisdiction of the New Zealand courts. Should you wish to dispute our rights or powers or any of our actions in connection with the Loan Agreement, you may do so only in the New Zealand courts. This does not limit our rights to enforce the Loan Agreement against you or any judgment against you or against your real and personal property in any country where you or that property may be.
You agree that we may fill in any blanks in any document related to the Loan Documents to reflect the agreement we have reached with you, whether express or implied (such as an acknowledgement date).
We may pay various sources a fee for providing customer leads or referrals to us.
If there are two or more of you acting as Borrower under the Loan Agreement, each of you is individually liable and all of you are jointly liable. You agree that each of you can bind the other. Each other party will be liable even if they did not know about or did not agree to the transaction. This means that each one of you can be required to pay the whole of the Total Amounts Owing even though you may have some other arrangement between yourselves or if not all or both of you benefit equally.
We may assign our right, title and interest in the Loan Agreement in circumstances where our business (or a part thereof) is being sold or restructured, or in any other circumstances with your prior written consent. You have no such right.
We may exercise all or any right, power or remedy at any time and failure to do or delay in doing so shall not constitute a waiver of our rights under the Loan Agreement unless we grant such a waiver in writing, and a continuous breach shall only be waived if we specify in writing that the waiver is continuous.
DEFINITIONS AND INTERPRETATION
In this Loan Agreement, the following terms have the corresponding definitions:
Act means the Credit Contracts and Consumer Finance Act 2003 (as amended or replaced from time to time);
Advance(s) means the Initial Advance, as set out in section 3 of your Loan Schedule (Credit Details), and if applicable, any Subsequent Advance(s), up to the agreed Credit Limit, as the context may require;
AML/CFT Act means the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (as amended or replaced from time to time);
Borrower Nominated Account means the bank account you have nominated, from which you will pay, or we may deduct, repayments on the terms of the Loan Agreement, as set out in section 7 of your Loan Schedule (Bank Accounts);
Credit Limit means the agreed limit beyond which you cannot draw down any further Advance(s), as set out in section 3 of your Loan Schedule (Credit Details);
Default Fees means the fees set out under that heading in section 13 of your Loan Schedule (What Could Happen If You Fail to Meet Your Commitments). Where applicable, references to Default Fees include Enforcement Fees;
Default Interest Charges means interest charges calculated at the rate set out under that heading in section 13 of your Loan Schedule (What Could Happen If You Fail to Meet Your Commitments), and Default Interest Rate refers to that rate;
Disclosure Date means the date specified on page 1 of your Loan Schedule;
Drawdown Fee(s) means fees we charge when you draw down an Advance. For the Initial Advance there is no Drawdown Fee (although you will be charged the Establishment Fee, as set out in section 3 in the of your Loan Schedule (Credit Details)). However, if you draw down any Subsequent Advance(s), you will be charged Drawdown Fees as set out in section 4 of your Loan Schedule (Payments);
Enforcement Fees means fees we may charge to cover costs we incur or losses we suffer as a result of our exercise of rights under the Loan Documents, in the event of breach, set out under the heading “Default Fees” in section 13 of your Loan Schedule (What Could Happen If You Fail to Meet Your Commitments). Where applicable, references to Default Fees include Enforcement Fees;
Establishment Fee means the amount set out in section 3 in the of your Loan Schedule (Credit Details), reflecting our administrative costs incurred in setting up the lending arrangements pursuant to the Loan Agreement;
Full Prepayment means the payment of the Total Amounts Owing in full before the Repayment Date, as further described in section 10 of your Loan Schedule;
Government Charges Fee means a fee we may charge you in order to cover any costs we reasonably incur in respect of any government charges or duties in connection with this Loan Agreement, as set out in section 9 of your Loan Schedule (Credit Fees and Charges);
Implied Covenants means the covenants, conditions or powers implied in mortgages of land under Part 1 of Schedule 2 of the Property Law Act 2007, as set out in clause 11.4(a) of these Standard Terms and Conditions;
Initial Advance means the amount which is initially advanced to you, as set out in section 3 of your Loan Schedule (Credit Details);
Initial Drawdown Date means the date we transfer the Initial Advance to your Borrower Nominated Account. Usually this will be the date you have requested, as set out in section 3 of your Loan Schedule (Credit Details);
Initial Unpaid Amount means the amount set out in section 3 of your Loan Schedule (Credit Details). Usually this will be the amount of the Initial Advance together with the Establishment Fee;
Interest Charges means the interest payable on the Total Amounts Owing, calculated at the Interest Rate set out in section 5 of your Loan Schedule (Interest Rate), each calendar month or part thereof until the Repayment Date, but may also include any applicable Default Interest Charges;
Interest Rate means the rate set out in section 5 of your Loan Schedule (Interest Rate);
Loan Documents means the documents setting out our loan arrangement with you. Usually these will be these Standard Terms and Conditions, your Loan Schedule, and the General Acknowledgement and Agreement, as set out in the General Acknowledgement and Agreement;
Loan Purpose means the reason you have informed us that you require the funds available under the Loan Agreement, as set out on page 1 of your Loan Schedule;
Loan Schedule means the schedule containing terms and conditions specific to our lending to you, provided to you along with the other Loan Documents, as part of the Loan Agreement;
Loan Term means the term of the Loan Agreement, as specified in section 4 of your Loan Schedule (Payments);
Property means the property which you wish to sell, as set out in section 6 of your Loan Schedule (Property and Real Estate Agency);
Real Estate Agency means the real estate agent and/or agency you have appointed to sell the Property, as set out in section 6 of your Loan Schedule (Property and Real Estate Agency);
Repayment Date means the date set out in section 4 of your Loan Schedule (Payments);
Standard Terms and Conditions means these Standard Terms and Conditions for Consumer Loans, forming part of the Loan Agreement;
Subsequent Advance(s) means an Advance(s) we may, in our discretion, provide to you at your request at a later point after the Drawdown Date and will form part of the Total Amounts Owing, in accordance with section 4 of your Loan Schedule (Payments);
Subsequent Drawdown Date means the date we transfer any Subsequent Advance(s) to your Borrower Nominated Account. This may be the date you have requested in your application for the Subsequent Advance(s), or another date we have approved;
Total Amounts Owing means the total amount you owe us under the Loan Agreement at any time and includes the Initial Advance, any Subsequent Advance(s), and all fees and charges, including Interest Charges and any Default Fees, less any repayments you have made at the relevant time(s);
Unforeseen Hardship Application means a written application you may make to us if you are unable reasonably to keep up your payments or other obligations under the Loan Agreement because of illness, injury, loss of employment, the end of a relationship, or other reasonable cause, in the form set out in section 14 of your Loan Schedule (What To Do If You Suffer Unforeseen Hardship); and
A working day means a day of the week other than a Saturday, a Sunday, or a public holiday in Wellington or Auckland, New Zealand.
In the Loan Documents, unless the context otherwise requires or permits:
terms and expressions which are defined in the Act bear the same meanings;
a reference to one gender includes all genders;
a reference to the singular includes the plural and vice versa;
references to a Loan Document or the Loan Documents include any variation or replacement version; and
headings are for ease of reference only and shall not affect interpretation.
