MORTGAGE LOAN AGREEMENT

Transcription

1 MORTGAGE LOAN AGREEMENT DISCLOSURE STATEMENT Get in touch PO Box 4295, Shortland Street, Auckland 1072 phone fax web libfin.co.nz SPECIFIC TERMS: All of the details described below are correct as at the Disclosure Date. They may change prior to the Date of Advance. This Mortgage Loan Agreement is composed of two parts; this document which incorporates the Disclosure Statement (called the Specific Terms ); and the document entitled Form of Registrable Memorandum, 2009/4275 (called the Memorandum ). Section 1 of the Memorandum contains terms that apply to the loan. Section 2 contains terms that apply to each mortgage over the property that a Borrower or a Guarantor agrees to provide as security for the loan. Section 3 has terms that affect the meaning and interpretation of, or apply generally to, Sections 1 and 2. DISCLOSURE STATEMENT Prepared on ( Disclosure Date ) IMPORTANT: Secure Funding is required to provide you with this disclosure statement under section 17 of the Credit Contracts and Consumer Finance Act This document sets out the key information about your credit contract. You should read it thoroughly. You should keep a copy of this Mortgage Loan Agreement (being both the Specific Terms and the Memorandum) in a safe place. If you do not understand anything in this document, you should seek independent advice. CANCELLATION: The law gives you a limited right to cancel the credit contract. See the statement of right to cancel below for full details of your right to cancel. Note that strict time limits apply. FULL NAMES AND ADDRESSES OF PARTIES Creditor: This is the person or company providing you the credit. Name: Secure Funding Limited (referred to in this Mortgage Loan Agreement as Secure Funding, we and us ) Physical Address: Level 8, 45 Queen Street, Auckland Postal Address: PO Box 4295, Shortland Street Auckland NZ Fax: info@libfin.co.nz You may send notices to Secure Funding by: Writing to Secure Funding at the above Postal Address; or Sending a fax to Secure Funding at the above Fax number; or Sending an to Secure Funding at the above address. Financial Service Providers Register details We are registered on the Financial Service Providers register as Secure Funding Limited under number FSP V

2 Borrower(s): Name: Address: (referred to in this Mortgage Loan Agreement as you ) Name: Address: CREDIT DETAILS Initial unpaid balance Advances (these are the amounts that will be advanced to you by Secure Funding) Fees to be deducted (these are the fees that will be deducted by Secure Funding from the amounts advanced to you) $ This is the amount you owe at the date of this statement (including any fees charged by Secure Funding payable by deduction on Date of Advance), it includes the Loan Advance, the Rebatable Establishment Fee Advance and is made up as follows. Item Amount Loan Advance $ Rebatable Establishment Fee Advance Rebatable Origination Fee Advance Item Brokerage Fee Valuation Fee Rebatable Establishment Fee Rebatable Origination Fee Not applicable. Not applicable. Amount Not ascertainable. Calculated by broker as per agreement with us: up to 2% of the loan amount. Not ascertainable. Calculated by valuer. Benchmark is $475 (inc. GST) which can increase. Not applicable. Not applicable. Legal Fees Not ascertainable. Calculated by our lawyers on a costs incurred basis. Re-documentation Fee $230 (inc. GST) Collateral Security Fee $175 (inc. GST) Fees already paid (these are the fees that you have already paid to Secure Funding) Item Amount Equalisation Fee Not ascertainable. Applicable only for loans <85% Loan to Value Ratio. Loans <85% is 0.5% of loan amount. Loans <90% is 0.8% of loan amount. Brokerage Fee Not ascertainable. Calculated by broker as per agreement with us: up to 2% of the loan amount. Valuation Fee Not ascertainable. Calculated by valuer. Benchmark is $475 (inc. GST) which can increase. Legal Fees Not ascertainable. Calculated by our lawyers on a costs incurred basis. Re-documentation Fee $230 (inc. GST) Collateral Security Fee $175 (inc. GST) Subsequent Advances Amount of each Advance $ Each advance will be made on each Monthly Payment Date during the period of months from the Date of Advance. You authorise and instruct us to apply each subsequent advance to the Monthly Instalment due on the date of its advance. 2 V

3 PAYMENTS REQUIRED You are required to make each payment of the amount specified and by the time specified. Total number of payments Maturity Date The day that is months after the Date of Advance. Timing of payments Frequency: Monthly Amount of payments First Payment: One month after Date of Advance Each payment of interest during the Interest Only Period is $. Following the Interest Only Period, each payment of principal and interest is of $. Amount of payments During the Interest Only Period and Fixed Interest Rate Period each payment is $. At the expiry of the Interest Only Period and the Fixed Interest Rate Period the interest rate will revert to a floating interest rate and each payment of principal and interest will be calculated in accordance with applicable floating rate. Amount of payments During the Fixed Interest Rate Period each payment of principle and interest is $. At the expiry of the Fixed Interest Rate Period the interest rate will revert to a floating interest rate and each payment of principal and interest will be calculated at the applicable floating rate. Amount of payments $ Staggered Advances At your request we have agreed to advance the total Loan Advance of $ in stages over the period of months from the Date of Advance (the Advances Period). We will advance the amount of $ on the Date of Advance and on each monthly Payment Date we will advance the amount of the Subsequent Advance. At your request, we will apply this advance to payment of the monthly Instalment due on that date. The amount of each Subsequent Advance will be added to the unpaid balance of the loan on the Payment Date and will thereafter accrue interest. The payments you are required to make during the Interest Only Period are calculated to ensure that the minimum amount of interest due and payable each month is paid. To the extent that the actual interest debited to the account is less than the monthly Instalment paid, the balance will be applied to reduce the principal of the loan in accordance with clause 2 of the Memorandum. INTEREST Annual interest rate(s) Annual interest rate(s) (Fixed) Fixed Interest Rate Period The annual percentage rate that applies to your loan is our variable rate for similar variable rate loans. We will advise you of changes to that rate as they occur. That interest rate is % per annum as at the Disclosure Date. The annual percentage rate that applies to your loan is % per annum until the expiration of the Fixed Interest Rate Period, but thereafter subject to change in accordance with this Mortgage Loan Agreement. The above fixed rate only applies if the Date of Advance occurs within 30 days of the Disclosure Date. If the Date of Advance does not occur within that period then the fixed interest rate applicable to this loan may be different to the rate disclosed above. The period commencing on the Date of Advance and expiring months after the Date of Advance. Interest Only Period The period commencing on the Date of Advance and expiring months after the Date of Advance. Method of charging interest Customer interest concession care rate Interest rate switch Interest charges are calculated by multiplying the interest bearing unpaid balance of the loan at the end of the day by a daily interest rate. The daily interest rate is calculated by dividing the Interest Rate by 365. Interest is payable on each consecutive monthly date (or, if in any given month there is no corresponding date, then the last day of that month) from the Date of Advance, and the Maturity Date. Unless you are in default, the interest bearing unpaid balance is the unpaid balance of the loan less the amount of any Rebatable Advance (see clause 1.4 of the Memorandum). You are entitled to request that the floating interest rate be reduced once the third anniversary of the Date of Advance has been reached. We may agree to this on the following conditions: a) the request is made to us in writing; b) you have not been in arrears under the Mortgage Loan Agreement for at least 12 months preceding the date the request is received by us; c) the amount of the interest rate reduction given to you is at our absolute discretion; d) the new variable annual interest rate will apply from a date to be decided by us; e) you pay all costs arising from the rate change; and f) you do anything else that we may require. When the Interest Rate that applies under these Specific Terms is our floating interest rate then you may request that the Interest Rate be changed to a fixed interest rate. This request must be made to us in writing. We may agree to this on the condition you pay all costs arising from the switching of the Interest Rate and that you do anything else that we may require. 3 V

4 FEES Credit fees and charges The following credit fees and charges are, or may become, payable under, or in connection with this Mortgage Loan Agreement. All credit fees and charges may be changed (see clause 29.4 of the Memorandum). Amount (or method of Description calculation) How and When Paid payable monthly in arrears and included in your Service Fee $0 repayments Substitution Fee $500 on release of mortgage Discharge Administration $495 on date of repayment of the Fee loan Interest Rate Switching Fee $500 on date of interest rate switch Payment of a rebatable fee These provisions apply to a Rebatable Advance included in the initial unpaid balance If the Advances section of the Credit Details above includes a Rebatable Advance then, on the Date of Advance we will advance you the amount of that Rebatable Advance. This advance will form part of the Initial Unpaid Balance and the following provisions will apply to it: Interest will not be charged on the Rebatable Advance at any time unless the Outstanding Money becomes due for payment as a result of your being in default (see clause 1.4 of the Memorandum); By signing this Mortgage Loan Agreement you irrevocably authorise and instruct us to apply the Rebatable Advance towards payment of the fee for which the Rebatable Advance was made; If, on the day three years after the Date of Advance the Outstanding Money has not been repaid in full and has not fallen due for payment before that date, we will credit your account with an amount equal to the Rebatable Advance in repayment of the Rebatable Advance. CONTINUING DISCLOSURE We are required to provide you with regular statements. These statements will give you information about your account. Statements will be provided every 6 months. WHAT COULD HAPPEN IF YOU FAIL TO MEET YOUR COMMITMENTS Security interest By signing this Mortgage Loan Agreement you agree to give us a mortgage over property listed below to secure performance of your obligations under this Mortgage Loan Agreement including your obligation to pay, money. If you fail to meet your commitments to us under this Mortgage Loan Agreement then to the extent of the security interest, we will be entitled to repossess and sell this property. If the proceeds received from the sale are insufficient to repay what you owe us, you will remain liable for the amount outstanding. Under the memorandum, you are not permitted to give additional security over this property without our consent. If you do then you will have failed to meet your commitments to us and we may accelerate repayment of the loan and exercise our rights to repossess and sell the property. new first registered mortgage over Address : CT : Mortgagor : Priority Amount : $ (for the purposes of section 92 of the Property Law Act 2007 only) 4 V

5 new first registered mortgage over Address : CT : Mortgagor : Priority Amount : $ (for the purposes of section 92 of the Property Law Act 2007 only) existing mortgage(s) Address : CT : Mortgagor : Priority Amount : $ (for the purposes of section 92 of the Property Law Act 2007 only) Address : CT : Mortgagors : Priority Amount : $ (for the purposes of section 92 of the Property Law Act 2007 only) Loan-to-Security Percentage % If the Outstanding Money exceeds the Loan-to-Security Percentage of the value we place on your Secured Property we may require you to provide additional security in accordance with clause 11.2 of the Memorandum. Default interest charges and default fees Default Interest The Default Interest Rate is the aggregate of the Interest Rate from time to time and 6% per annum. Further information about how we calculate default interest and when it applies is set out in clause 6 of the Memorandum. If the repayment of the loan is accelerated as a result of default under this agreement, however, default interest does not accrue on the amount payable early and interest at the relevant interest rate continues to accrue. Default Fees Description Amount How and When Paid Payment Dishonour Fee $25.00 by you immediately upon the occurrence of a dishonour the Payment Dishonour Fee will be debited to your account on the day that we are advised of the dishonour. Default Administration Fee $95.00 by you immediately upon default the Default Administration Fee will be debited to your account on a Payment Date when you have been in default at any time since the preceding Payment Date. Property Law Act Notice Fee $ by you when we prepare a notice required by either section 119 or section 122 (or any amendments to or replacements of these sections) of the Property Law Act Expired Insurance Fee $50.00 by you when you do not provide evidence of ongoing building insurance. Rates Arrears Fee $ by you when we are notified by a local or water rating authority that there has been a non-payment of any rates in relation to a Secured Property. 5 V

6 PREPAYMENT Full or partial prepayment Full prepayment If your loan is subject to a Fixed Interest Rate Period and you prepay the loan in part or in full before the expiry of the Fixed Interest Rate Period or the loan is prepaid in full or in part in connection with a Default before the expiry of the Fixed Interest Rate Period, we may charge you a fee or charge to compensate us for any loss resulting from the prepayment. The amount you may have to pay to compensate us for the loss in respect of a full prepayment is calculated using the formulas specified in regulations 9 or 11 (as applicable) of the Credit Contracts and Consumer Finance Regulations However, where a loan is prepaid in part (but not in full) then you may be required to pay a fee that we determine as the reasonable estimate of our loss resulting from your part prepayment. No amount prepaid may be redrawn. If there is any conflict between this clause and the Memorandum this clause prevails. If you pay the unpaid balance in full before the final payment is due (full prepayment), you may have to pay our administrative costs relating to the full prepayment. If a loan is prepaid as a result of us exercising our rights as mortgagee, we may charge you all fees and charges as if prepayment was made by you. Description Amount How and When Paid Secure Funding s Administration Costs The fee will be a charge equal to Secure Funding s average administrative costs arising from full prepayments of credit contracts of the same class as this Mortgage Loan Agreement. Payable upon full prepayment DISPUTE RESOLUTION If you have a complaint or a dispute, we recommend that you contact us and discuss it with us first. We are able to help you. If you are not happy with our response or you want the dispute dealt with by an independent party, you may contact our dispute resolution scheme. Name of dispute resolution scheme: Financial Service 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. The contact details of our dispute resolution scheme are: Phone: Website: Business Address: level 4, Sybase House, 101 Lambton Quay, Wellington V

7 RIGHT TO CANCEL You are entitled to cancel the consumer credit contract by giving notice to the creditor. Time limits for cancellation If the disclosure documents are handed to you directly you must give notice that you intend to cancel within 5 working days after you receive the documents. If the disclosure documents are sent to you by electronic means (for example, ) you must give notice that you intend to cancel within 7 working days after the electronic communication is sent. If the documents are posted to you, you must give the notice within 9 working days after they were posted. Saturdays, Sundays, and national public holidays are not counted as working days. How to cancel To cancel, you must give the creditor written notice that you intend to cancel the contract by- giving notice to Secure Funding or an employee or agent of us; or posting the notice to us or an agent of Secure Funding; or ing the notice to Secure Funding s address (if specified on the front of this disclosure statement); or sending the notice to Secure Funding s fax number (if specified on the front of this disclosure statement). You must also, within the same time, return to the creditor any advance and any other property received by you under the contract. What you may have to pay if you cancel If you cancel the contract, the creditor can charge you the amount of any reasonable expenses the creditor had to pay in connection with the contract and its cancellation (including legal fees and fees for credit reports, etc). If you cancel the contract the creditor can also charge you interest for the period from the day you received the advance until the day you repay the advance. WHAT TO DO IF YOU SUFFER UNFORESEEN HARDSHIP If you are unable reasonably to keep up your payments or other obligations because of illness, injury, loss of employment, the end of a relationship, or other reasonable cause, you may be able to apply to the creditor for a hardship variation. To apply for a hardship variation, you need to: (a) (b) (c) (d) make an application in writing; and explain your reason(s) for the application; and request one of the following: an extension of the term of the contract (which will reduce the amount of each payment due under the contract); or a postponement of the dates on which payments are due under the contract (specify the period for which you want this to apply); or both of the above; and give the application to the creditor. Do this as soon as possible. If you leave it for too long, the creditor may not have to consider your application. DISCLOSURE STATEMENT ENDS 7 V

8 OPERATIVE PROVISIONS Secure Funding offers this loan to the Borrower on the terms and conditions set out above and below and in the Memorandum. Each person included as the Borrower is jointly and severally liable to Secure Funding for all of the Borrower s obligations under this Mortgage Loan Agreement and each reference in this Mortgage Loan Agreement to the Borrower is to be construed as a reference to each of them individually and any number of them jointly. The Guarantor will be required to execute a separate deed of guarantee and indemnity guaranteeing all of the obligations of the Borrower. The Guarantor guarantees the obligations of the Borrower under this Mortgage Loan Agreement to Secure Funding pursuant to the guarantee and indemnity referred to above. The Borrower will pay Secure Funding a discharge administration fee, as set out in the Disclosure Statement above. The Borrower will also be required to pay to Secure Funding credit fees and charges detailed above. All monies owing under this Mortgage Loan Agreement are Secured Moneys (as defined in the Memorandum). By signing this Mortgage Loan Agreement, the persons named in the Security Interest section above as Mortgagor(s) agree that, if the mortgage is not already in place, they will sign every document required to create or authorise the registration of the mortgage against the property listed in that section. The Borrower may choose to or may be required to (under clause 9.1 of the Memorandum) prepay the whole or any part of the Loan Amount at any time prior to the Maturity Date. Each Borrower and each Guarantor acknowledges receipt of a copy of this Mortgage Loan Agreement, including the Disclosure Statement and the Memorandum, for the purposes of initial disclosure under the Credit Contracts and Consumer Finance Act The terms of this Mortgage Loan Agreement (other than terms implied by law) are the terms in this document and the Memorandum. If there is any conflict between these Specific Terms and the Memorandum then the Specific Terms prevail. In addition to our rights set out in the Memorandum, Secure Funding may change any of the terms of your Mortgage Loan Agreement at any time (except the amount of a fixed interest rate during a Fixed Interest Rate Period) for example (but without limitation) Secure Funding may change terms that relate to: the amount of any interest rates (including the default interest rates); the method of calculating or the way interest charges are applied (including default interest charges); the amount, frequency, the time or dates for repayment, or method of calculation of any repayment; and the amount, frequency, time for payment or method of calculation of any fee or charge. Secure Funding may also introduce new fees at any time. Secure Funding will give you notice in accordance with law when a change is made. For the avoidance of doubt, we confirm that any change made by us will only be made to ensure that we comply with any law or changes to any law or to protect our legitimate business interest and will be made across all loans of a similar type to the loans recorded by this agreement. ADDITIONAL PROVISIONS Date of Advance: The date on which the funds in payment of the advance are made available to you or your solicitor. Purpose: The Borrower shall apply the Loan Amount for the purpose of purchasing the property at, refinancing the property at. Title Protection Fee: This fee reimburses us our average cost of reviewing searches of the title and such other searches as we deem necessary (if any) and assessing the risk of, and obtaining comfort on, any potentially adverse impact on the lender arising from title or property law risks associated with the secured property. This fee is an establishment fee. Conditions Precedent: Limited Liability Trustee Borrower: Limited Liability Trustee Borrower: Secure Funding shall have no recourse to any of the assets held by the Limited Liability Trustee Borrower, other than assets held by the Limited Liability Trustee Borrower as trustee of that respective trust, except where (but then only to the extent that) Secure Funding is unable to recover any Outstanding Money as a result of: any breach of trust by the Limited Liability Trustee Borrower (whether alone or with others); any lack of capacity, power or authority of the Limited Liability Trustee Borrower to enter into this Mortgage Loan Agreement; or any dishonesty of the Limited Liability Trustee Borrower. Guarantor(s): Name: Address: Name: Address: 8 V

9 SIGNED by Secure Funding: Signature Acceptance of offer: To accept this offer, each Borrower and each Guarantor (if there is one) must sign and date this document and return it to Secure Funding within 14 days from the Disclosure Date. If not accepted within this time the offer may be (at Secure Funding s sole discretion) withdrawn. Cancellation of commitment to lend. If this offer is accepted but the Date of Advance does not occur within 3 months of the Disclosure Date, then, unless we have advised you in writing to the contrary, this Mortgage Loan Agreement is at an end and we are not committed to make any advances to you. Your Acknowledgements. By signing this document, each party (other than Secure Funding): accepts the offer declares that all information they have given to Secure Funding is accurate and not misleading and are aware that Secure Funding is relying on the information acknowledges that before signing this document they received and read a copy of these Specific Terms (including the Disclosure Statement) and the attached Memorandum declares that they do not sign this document as trustee, unless they have advised Secure Funding in writing (if a Borrower) consents to Secure Funding giving to each guarantor or prospective guarantor: a copy of this Mortgage Loan Agreement a copy of any notice to Secure Funding, and a copy of each loan account statement acknowledges that each security given or to be given secures all moneys under this Mortgage Loan Agreement as well as all other money owing by the Borrower to Secure Funding under any other agreements declares that they understand that the mortgaged property will be at risk if they default under this Mortgage Loan Agreement agrees to notify Secure Funding promptly in writing if they change address confirms that they are not a registered person under the Goods and Services Tax Act 1985 and each mortgaged property is not used for a taxable activity as that term is defined in section 6 of that Act. agrees to advise Secure Funding if their GST registration status changes. DATED: SIGNED by the Borrower: Signature : (If the Borrower is a company, this must be signed by at least one director, or authorised person, of the Borrower who, by signing on behalf of the Borrower, personally warrants that he or she: (a) has the Borrower s authority to so sign; and (b) believes on reasonable grounds that the Borrower will be able to perform its obligations under this Mortgage Loan Agreement when it is required to do so.) SIGNED by the Guarantor: Signature: (If the Guarantor is a company, this must be signed by at least one director, or authorised person, of the Guarantor who, by signing on behalf of the Guarantor, personally warrants that he or she has the Guarantor s authority to so sign.) 9 V

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