Loan Contract. The party identified in the Specific Loan Terms as the borrower (you), as borrower

Transcription

1 Loan Contract PARTIES The parties to this Loan Contract are: A B C The party identified in the Specific Loan Terms as the borrower (you), as borrower The party identified in the Specific Loan Terms as the guarantor (if any) Austar Finance Trustee Limited (Austar or we), as lender AGREEMENT: 1 DEFINITIONS AND INTERPRETATION 1.1 The following definitions will apply within this Loan Contract unless the context requires otherwise: Application Fee means the amount specified as such in the Specific Loan Terms and the Borrower Disclosure (if applicable); Borrower Disclosure means the initial disclosure document provided to you in respect of the Loan for the purposes of the CCCFA (if applicable); Business Day means a day other than a Saturday, Sunday or statutory public holiday in New Zealand; CCCFA means the Credit Contracts and Consumer Finance Act 2003; Credit Fees means the fees and charges specified as such in the Specific Loan Terms and the Borrower Disclosure (if applicable); Date of Advance means the date on which the Loan is or is to be drawn as specified in the Specific Loan Terms; Default Fees means default interest charged at the Default Interest Rate in accordance with clause 9.1 and the fees and charges specified as such in the Specific Loan Terms and the Borrower Disclosure (if applicable); Default Interest Rate means the rate specified in the Specific Loan Terms and the Borrower Disclosure (if applicable); Early Repayment Fee means the amount specified as such in the Specific Loan Terms and the Borrower Disclosure (if applicable); Event of Default means any of the events set out in clause 7.1; Final Repayment Date means the date specified as such in the Specific Loan Terms and in the Borrower Disclosure (if applicable) as the last payment date as that amount may be accelerated under this Loan Contract; Loan means the total amount lent or to be lent by Austar to you under this Loan Contract, as set out in the Specific Loan Terms and the Borrower Disclosure (if applicable);

2 - 2 - Ordinary Interest Rate means the rate specified as such in the Specific Loan Terms and the Borrower Disclosure (if applicable); Participating Investor means an investor (including Austar Finance Limited where relevant) participating in the Loan through the peer-to-peer lending service provided by Austar Finance Limited; PPSA means the Personal Property Securities Act 1999; RWT means resident withholding tax imposed under the RWT rules in the Income Tax Act 2007; Secured Property means your property described as such in the Specific Loan Terms and the Borrower Disclosure (if applicable) but excludes any property in relation to which it is prohibited to provide for a security interest under Part 3A subpart 6 of the CCCFA (if applicable); Securities means the security over the Secured Property as described in the Specific Loan Terms and the Borrower Disclosure (if applicable) together with each other agreement at any time intended to secure your obligations under this Loan Contract; Specific Loan Terms means the terms specific to your Loan as set out in the Schedule. 1.2 The following rules of interpretation shall apply to this Loan Contract unless the context requires otherwise: (e) (f) headings are for convenience only and do not affect interpretation; the singular includes the plural and the converse; one gender includes the other genders; a reference to any legislation or to any provision of any legislation (including regulations and orders) includes that legislation or provision as from time to time amended, re-enacted or substituted and any statutory instruments, regulations and orders issued under any such legislation or provision; reference to any document includes reference to that document (and, where applicable, any of its provisions) as amended, novated, supplemented, or replaced from time to time; reference to a party, person or entity includes: (i) an individual, partnership, firm, company, corporation, association, trust, estate, state or agency of a state, government or government department or agency, municipal or local authority and any other entity, whether or not incorporated and whether or not having a separate legal personality; and (ii) an employee, agent, successor, permitted assign, executor, administrator and other representative of such party, person or entity;

3 - 3 - (g) (h) (i) where any word or phrase is defined, any other grammatical forms have a corresponding meaning; reference to a section, clause, subclause, schedule or a party is a reference to that section, clause, subclause, schedule or party in this Loan Contract unless stated otherwise; and any reference to "month" or "monthly" shall mean, respectively, calendar month or calendar monthly and any reference to "year" or "yearly" shall mean, respectively, calendar year or calendar yearly. 2 AVAILABILITY OF THE LOAN FACILITY 2.1 Subject to satisfaction of the conditions precedent in clause 3.1, Austar agrees to advance the Loan to you by paying the advance to the bank account specified in the Specific Loan Terms, on the terms and conditions of this Loan Contract. 3 CONDITIONS PRECEDENT 3.1 Austar will only advance the Loan where: the Loan has been approved by Austar and fully funded by Participating Investors; Austar has received and found satisfactory all documentation required in respect of the Securities over the Secured Property; no Event of Default subsists; and Austar has received and found satisfactory any other documentation or information required by Austar. 4 PAYMENT OF LOAN FACILITY, INTEREST & FEES 4.1 You must pay all loan repayments specified in the Specific Loan Terms, comprising payments of principal and interest, to Austar on the repayment dates specified in the Specific Loan Terms. 4.2 You may repay the outstanding balance of the Loan in full prior to the Final Repayment Date upon payment of the Early Repayment Fee together with all interest, fees and charges accrued to the date of prepayment. You may only prepay the outstanding balance of the Loan in full and you may not make any partial prepayments under this clause. 4.3 You agree to pay: the Application Fee to Austar on the Date of Advance; the Credit Fees to Austar on the Date of Advance; the Default Fees (if applicable); and

4 - 4 - the Early Repayment Fee (if applicable). 5 REPRESENTATIONS AND WARRANTIES 5.1 You represent and warrant that: (e) (f) (g) (h) (i) (j) you have the legal capacity to enter into this Loan Contract and the Securities and to perform your obligations under this Loan Contract and the Securities; your obligations under the Loan Contract and the Securities constitute valid and binding obligations enforceable against you in accordance with their terms, subject to insolvency laws of general application; no event has occurred which is or may become, with the passage of time or the giving of notice or both, an Event of Default; except as notified to Austar in writing prior to the date of this Loan Contract, you are not acting as trustee of a trust; except as notified to Austar in writing prior to the date of this Loan Contract, there are no security interests over the Secured Property (other than under the Securities); except as notified to Austar in writing, no litigation, arbitration or administrative proceedings exist or are pending, and you do not know of any which are threatened, that may have a material adverse effect on your ability to perform your obligations under this Loan Contract and the Securities; you are solvent and are able to pay your debts as they fall due; you have disclosed to Austar all material matters that you know of which affect your ability to perform obligations under this Loan Contract and the Securities; entering into this Loan Contract and the Securities and carrying out your obligations under them will not contravene any law to which you are subject or any agreement which is binding on your assets; and your execution of this Loan Contract and the Securities does not give rise to a need for an authority, license, consent or exemption that you do not already hold. 5.2 Each of the foregoing representations and warranties will be deemed to be repeated continuously during the term of the Loan. 6 COVENANTS 6.1 You covenant that unless Austar otherwise consents in writing you will during the continuance of this Loan Contract: notify Austar of the occurrence of any Event of Default immediately upon becoming aware of it;

5 - 5 - comply in all material respects with all applicable laws, rules, regulations and orders, that compliance to includes without limitation, paying when due all taxes, assessments and governmental charges imposed on you or your property except to the extent contested in good faith and obtaining, maintaining and renewing all authorisations necessary for the conduct of your business from time to time; promptly comply with all, and give to Austar, any material notice, order or correspondence from or with any governmental agency relating to the Secured Property or its use or the conduct of its business; and promptly deliver to Austar details of any current, pending or threatened litigation, arbitration or administrative proceedings against you. 7 EVENTS OF DEFAULT 7.1 An Event of Default shall occur if, during the continuance of this Loan Contract: (e) (f) you fail to pay any amount due hereunder in the manner and at the time specified in this Loan Contract and/or the Securities; or you do not perform or comply with any of your obligations or undertakings under this Loan Contract and/or the Securities; or any statement, representation or warranty made or deemed to have been made by you in or in connection with this Loan Contract or the Securities is incorrect in any material respect; or in the reasonable opinion of Austar, a material adverse change occurs in relation to you; or you are, or are presumed to be, unable to pay your debts as they fall due; or if, at any time, Austar determines that it is or may become unlawful, impractical or contrary to any law, treaty or directive of any agency of state or other regulatory authority to make, fund or allow to remain outstanding all or part of the Loan, to charge or receive interest at any applicable rate or to comply with any of your obligations or exercise any of your rights under this Loan Contract and the Securities. 7.2 Upon or at any time after the occurrence of an Event of Default, Austar may at its discretion and without prejudice to its other rights and remedies by notice in writing to you take all or any of the following actions: declare the Loan and any other sums outstanding under this Loan Contract to be immediately due and payable, whereupon the same shall become so payable together with accrued interest thereon; and/or exercise its rights, powers and remedies, or any of them under this Loan Contract, the Securities and/or at law.

6 - 6-8 GENERAL INDEMNITY 8.1 You agree to indemnify Austar, every officer and employee of Austar upon demand against any direct, contingent, consequential and/or actual loss, cost, expense, charge, damage or liability which Austar, an officer or an employee of Austar may suffer or incur arising from or in connection with this Loan Contract and/or the Securities. 8.2 The above indemnity is unconditional and irrevocable, is to survive termination of this Loan Contract and payment of all other indebtedness due under this Loan Contract and is not to be discharged or impaired by an act, omission, matter or thing that might discharge or impair them but for this clause. 9 DEFAULT INTEREST 9.1 You shall pay to Austar interest calculated on a daily basis at the Default Interest Rate on all monies (including interest) payable under this Loan Contract which may from time to time be overdue, such interest to be payable on demand being made by Austar. 10 SECURITIES 10.1 As security for the repayment of all moneys owed under this Loan Contract, you shall on the date of this Loan Contract, grant to Austar the Securities You must: maintain the Secured Property in good condition; insure the Secured Property for full replacement value and comply with all requirements of such insurance; not sell, dispose of, lose possession or control of any Secured Property, create or permit to exist a security interest in any Secured Property or allow any Secured Property to become an accession to any property that is not Secured Property without Austar s prior written consent If the Secured Property includes personal property (as defined in the PPSA), sections 114(1), 133 and 134 of the PPSA will not apply to the Securities and you will have none of the rights under sections 116, 120(2), 121, 125, 129 and If Austar has rights in addition to, or existing separately from, those in part 9 of the PPSA, those rights will continue to apply and, in particular, will not be limited by section 109 of the PPSA You irrevocably appoint Austar (and any director or agent of Austar) severally to be your attorney and in your name or otherwise do anything you have agreed to do and otherwise protect Austar s interests under this Loan Contract. Without limiting this power Austar may execute any document for the purposes of registering any mortgage or creating a security interest (or causing one to attach) under the PPSA. You ratify anything done by your attorney under this clause and indemnify any person acting in reliance on the power.

7 PAYMENTS AND TAXES 11.1 Where a payment to be made under this Loan Contract is due on a day which is not a Business Day the due date shall be the next Business Day (unless the next Business Day falls in the next month of the year, in which case the due date will be the previous Business Day) Each payment to Austar under this Loan Contract and the Securities is to be made in immediately available freely transferable funds in the manner and to the account at the bank which Austar, by notice to you, specifies from time to time. If a payment is made on the due date but after the specified end of day for payment purposes, you shall pay to Austar, on request, interest on the amount paid until the next Business Day (as if the payment were made on the later day) Each payment by you to Austar under this Loan Contract and the Securities is to be made: free of any restriction or condition; and free and clear of and without any deduction or withholding for or on account of tax or on any other account, whether by way of set off, counterclaim or otherwise If a payment made by you to Austar pursuant to this Loan Contract and the Securities is avoided by law: that payment shall be deemed not to have discharged or affected the obligation of you in respect of which that payment was made or received; and Austar and you shall be deemed to be restored to the position in which each would have been, and shall be entitled to exercise all the rights which each would have had, if that payment had not been made To the extent that you are required by law to deduct RWT from any payment to Austar pursuant to this Loan Contract, Austar will deduct the RWT amount on your behalf and pay it to Inland Revenue and you acknowledge that you will not deduct or withhold any amount of RWT from any payment by you to Austar under this Loan Contract. 12 CALCULATIONS AND EVIDENCE 12.1 Interest will be calculated in accordance with the Specific Loan Terms In the absence of manifest error or fraud, the entries made in the accounts maintained by Austar are to be conclusive evidence of the existence and amounts of the obligations of you recorded in them In the absence of manifest error or fraud, a certificate by Austar of an interest rate or amount payable under this Loan Contract is to be conclusive evidence for all purposes including for any proceedings.

8 NOTICES 13.1 All notices, requests, demands or other communications to or upon the parties in connection with this Loan Contract shall be: given or made in writing; signed by a director, officer or other authorised person of the party giving such notice, or by a solicitor acting on behalf of such party; and served upon or delivered to the recipient personally, or sent by post, facsimile or to the recipient at the address, facsimile number or address provided by the recipient A notice, request, demand or other communication shall be deemed to have been received: in the case of personal delivery, on the day of that delivery; in the case of letter posted by mail, on the second working day after posting; and if made by , when received as set out in the Electronic Transactions Act 2002 (NZ). 14 EXPENSES 14.1 You shall pay to Austar, upon demand, all costs and expenses on a full indemnity basis (including all legal fees on a solicitor and own client basis and taxes) incurred by Austar in connection with the: implementation of the Securities; enforcement or preservation of, or attempted enforcement or preservation of, any rights under this Loan Contract and the Securities, or in suing for or recovering any moneys payable by you under this Loan Contract and the Securities (including collection fees and sales and commission fees in relation to the sale of any Secured Property); and granting of any waiver, consent or variation of this Loan Contract and the Securities requested by you. 15 TRUSTEE PROVISIONS 15.1 Austar has entered into this Loan Contract on behalf of each Participating Investor as bare trustee and not in its personal capacity. Accordingly, all interests, rights and obligations arising under this Loan Contract are held on separate bare trusts for each Participating Investor in proportion to the amount of each Participating Investor's respective investment in the Loan. Austar s liability under this Loan Contract is limited to the assets from time to time under its control as trustee for the Participating Investors.

9 If any of you are entering into this Loan Contract as the trustee of a trust then you represent and warrant to the lender that: you have the power under the instrument under which you hold the property on trust to enter into this Loan Contract; the entry into this Loan Contract is for a proper purpose and for the benefit of the trust under which you hold the Secured Property; you have the right to be indemnified from the assets of the trust and that right has not been lost or impaired by any of your actions including the entry into this Loan Contract; and all of the persons who are trustees of the relevant trust have approved and have signed or assented to this Loan Contract Unless you have been named in this Loan Contract as a limited trustee (in which case the provisions of clause 15.4 will apply) all of you have full and unlimited personal liability for the repayment of the moneys owing and the compliance with all obligations of this Loan Contract If you have been named in this Loan Contract as a limited liability trustee then your liability is not personal and unlimited but will be limited to an amount equal to the value of the assets of the trust under which you have entered into this Loan Contract as a trustee that are (or, but for default would be) available to satisfy your liability for the moneys owing (the limited amount) unless your right as a trustee to be indemnified from the assets of the trust has been lost and, as a result, the lender is unable to recover from you the limited amount. 16 GENERAL PROVISIONS 16.1 No failure or delay by Austar in exercising, or single or partial exercise, of any right, power, discretion, remedy or privilege in connection with this Loan Contract shall operate as a waiver of that right, power, discretion or remedy. No course of dealing between you and Austar shall operate as a waiver of any right, power, discretion, remedy or privilege of Austar The rights, powers and remedies provided in this Loan Contract are cumulative and are not exclusive of any rights, powers or remedies provided by law or pursuant to any other agreements or securities granted either before or after the date of this Loan Contract Each of the provisions of this Loan Contract is severable and distinct from the others. If at any time one or more of those provisions is or becomes invalid, illegal or unenforceable, then the validity, legality or enforceability of the remaining provisions of this Loan Contract shall not in any way be effected or impaired This Loan Contract shall not be amended or varied except in writing signed by you and Austar except that Austar may amend this Loan Contract if required by law This Loan Contract and the Securities are binding upon you and will endure for the benefit of the parties and their respective successes and permitted assigns. You shall not assign or transfer any of your respective rights or obligations under this Loan Contract and/or the Securities except with the prior consent in writing of Austar.

10 Austar may assign all or part of its rights and benefits under this Loan Contract and/or the Securities without your consent This Loan Contract shall be governed by and construed in accordance with New Zealand Law and the parties submit to the non-exclusive jurisdiction of the New Zealand courts. EXECUTION SIGNED by [INSERT BORROWER] in the presence of ) ) Witness s Signature Name Occupation Address SIGNED by [INSERT GUARANTOR] in the presence of ) ) Witness s Signature Name Occupation Address SIGNED by AUSTAR FINANCE TRUSTEE LIMITED in the presence of ) ) Witness s Signature Name Occupation Address

11 Schedule Specific Loan Terms Name of Borrower(s): Name of Guarantor(s): Loan Amount: Date of Advance: Final Repayment Date: Loan purpose: Ordinary Interest Rate: Default Interest Rate: Application Fee: Service Fee: Interest calculation, loan repayments and repayment dates: [x]% Interest will be charged at the Ordinary Interest Rate plus the Service Fee and calculated on a daily basis from the Date of Advance to the Final Repayment Date and will be paid on each monthly anniversary of the Date of Advance in [insert number] equal instalments of $[insert value] each. Bank account details into which Loan will be advanced: Secured Property: Securities: Real property: the property at [insert address] and contained in certificate of title [insert certificate of title] Personal property: [insert description of personal property] Guarantee: All present and after acquired property of the guarantor. Over real property: An all obligations first mortgage with registered memorandum number 2015/4328 over [insert address] and contained in certificate of title [insert certificate of title]. Over personal property: A specific security agreement on the Auckland District Law Society form of General Security Agreement in respect of the specified personal property. Guarantee: A Deed of Guarantee and Indemnity on the Auckland District Law Society form in respect of all present and after acquired property of the guarantor.

12 Credit Fees and Charges: Default Fees and charges: Early Repayment Fee: