General Terms of Consumer Credit Contract
- You agree that this agreement comprises the Disclosure Statement and these General Terms
- We agree to lend you and you agree to borrow, the Total Advance referred to in the Disclosure Statement.
- Each Security Provider grants us a security interest in the Secured Property owned by that Security Provider (as described in the Disclosure Statement) (and all proceeds of the relevant Secured Property) to secure the payment of money and the performance of obligations owed to us under this agreement.
- Each Security Provider confirms that we may register a financing statement in relation to our security interest in the relevant Secured Property.
- Each Security Provider warrants that he or she is the only and legal owner of the relevant Secured Property.
- Where the whole or part of the Total Advance is to be disbursed to another entity(ies) you authorise us to pay (on your behalf) the whole or part (as the case may be) of the Total Advance (referred to in the Disclosure Statement) to the relevant entity(ies) in the amount(s) as set out in the Disclosure Statement.
A. MEANING OF WORDS OR PHRASES
- CCCFA means the Credit Contracts and Consumer Finance Act 2003 and its ammendments;
- Customer means each customer named in the Disclosure Statement and who is referred to in this agreement as “you” and “your”;
- Default Fees means the default fees referred to in the Disclosure Statement;
- Default Rate means the default interest rate per annum referred to in the Disclosure Statement;
- Disclosure Statement means the disclosure statement forming the first part of this agreement;
- End of the day means 4pm;
- General Terms means these general terms;
- Guarantor means each guarantor named in the Disclosure Statement;
- Payment Details means those details set out under the heading “Payment Details” under the Disclosure Statement;
- PPSA means Personal Property Securities Act 1999;
- Secured Property means the goods and/or other property (if any) owned by a Security Provider and described in the Disclosure Statement;
- Security Interest means any security interest, mortgage and/or agreement to mortgage granted by a Security Provider to us;
- Security Provider means each provider of security noted in the Disclosure Statement;
- Total Amount of Payments means the Total Amount of Payments referred to in the Payment Details;
- We/us/our means the creditor named in the Disclosure Statement;
- The expressions accession, at risk, attach, financing statement, financing change statement, proceeds, security interest and verification statement have the respective meanings given to them under, or in the context of, the PPSA;
- The expressions as soon as practicable, full prepayment, part prepayment, unpaid balance and working day have the respective meanings given to them under, or in the context of, the CCCFA;
- Reference to the “agreement” means the Disclosure Statement and the General Terms; and
- References in this agreement to the Disclosure Statement and General Terms means the Disclosure Statement and General Terms of this agreement.
B. YOUR RESPONSIBILITIES
- Payments: you must pay us the Total Amount of Payments at the times and in the amounts in accordance with the specified schedule of payments set out in the Payment Details promptly and without any deduction. Where a date for payment falls on a date which is not a working day then payment is to be made (or is deemed to have been made) on the next working day.
- Insurance: Each Security Provider must maintain insurance on the relevant Secured Property for a value agreed with us against all loss, damage and other usual risks and make sure that the insurance policy notes our interest in the Secured Property, if requested.
- Changes: you must notify us immediately if you change address or name.
- Laws and Use: you must ensure compliance with all laws and governmental requirements affecting possession and use of the Secured Property.
- Maintain Secured Property: each Security Provider must keep the relevant Secured Property in good condition and working order (fair wear and tear expected) and carry out all maintenance in accordance with manufacturers specifications.
- Inspection: each Security Provider must allow us to inspect the Secured Property at a reasonable time when we ask to.
- Third party premises: you must, on request by us at any time, use best endeavours to procure from any third party on whose premises the Secured Property is located the right for us to enter such premises to exercise any of our rights under this agreement.
- Advise us: you must tell us straight away of anything which may adversely affect the Secured Property or our Security Interest.
C. YOUR ENTITLEMENTS
- You are entitled to pay out this agreement early by full prepayment but if you do so you may be required to pay a fee or charge to compensate us for any loss resulting from the full prepayment and our administrative costs. Our loss will be calculated as referred to in the Disclosure Statement under the heading “Full Prepayment”. You may be entitled to a deduction in respect of any Payment Protection Plan fee you have already paid that relates to the remainder of the loan period.
D. WHAT YOU MUST NOT DO
Each Security Provider must not:
- Sell/dispose: sell or lease or otherwise dispose of, or permit the disposal of the relevant Secured Property or permit any security interest or lien to attach to the relevant Secured Property other than our Security Interest unless we agree in writing;
- Part with: part with possession of or move the relevant Secured Property out of New Zealand;
- Adversely affect: allow anything to occur which could adversely affect the relevant Secured Property or our Security Interest;
E. WHAT YOU AGREE WE CAN DO:
- Fees and Charges: We may charge you (subject to any restrictions at law) fees and charges relating to or in connection with this agreement. These fees and charges are referred to in the Disclosure Statement. We may vary such fees and charges from time to time.
- Part Payments: If you make a part prepayment we may decline to accept the part prepayment. We will decide whether or not to accept the part prepayment as soon as practicable after we receive that payment from you. If we do not accept the part prepayment we will refund it to you as soon as practicable. However if we decide to accept the part prepayment, that payment will only be applied at the times in the amounts in accordance with the specified schedule of payments set out in the Payment Details. This means that a part prepayment will not reduce the overall amount of interest you pay under this agreement.
- Loss or Damage to Secured Property: If any loss or damage occurs to the Secured Property and the insurer does not remedy that loss or damage then each Security Provider authorises us to claim under the relevant insurance policy and receive moneys or make any compromise in our or the relevant Security Provider’s name and give effective releases and receipts for the same. We may then apply such money to:
· remedy the loss or damage; or
· pay out this agreement in full (with any surplus being paid to the relevant Security Provider or in part.)
- Do things you have agreed to do: If you do not, or a Guarantor does not, carry out any of your obligations under this agreement (or the obligations of the Guarantor, as the case may be), we may, acting reasonably, decide to carry out those obligations (at your expense) or do anything else we reasonably think necessary (at your expense) so as to protect our interest under this agreement and the Secured Property (as the case may be) and in carrying out such obligations or doing any of those things we may use your name and act on your behalf. However, we cannot take additional security over any assets using our rights under this clause.
- End this agreement if you default: If you are in default under this agreement, we may do any one or more of the following things;
· declare the unpaid principal balance of the advances made to you under this agreement, plus accrued and unpaid interest and fees and all other amounts owing under this agreement, to be immediately due and payable and ask that you immediately pay to us those amounts;
· charge you interest at the Default Rate which will be calculated on the amount overdue on a daily basis from its due date until it is paid in full (both before and after any judgement) – however, we will not charge you default interest on any amount that has become payable early under the first point above;
· charge you the Default Fees;
· end our obligations to you under this agreement;
· repossess and sell the Secured Property (and for this purpose we or any person on our behalf may enter any premises where the Secured Property are located (whether or not any occupier is present));
· exercise any other rights we may have at law and under this agreement or otherwise.
F. WHEN WOULD YOU BE IN DEFAULT
You would be in default if:
- You do not, or a Guarantor does not, make a payment to us when it is due, unless the non-payment is caused solely by a payment system failure which is beyond the control of you or a Guarantor and we receive payment within 2 working days;
- You do not, or a Guarantor does not, comply in a material respect with anything else you have, or the Guarantor has, agreed to under this agreement or under any other agreement with us;
- What you, or a Guarantor, have told or tell us, or any information you or a Guarantor have given us is false or misleading in a material respect;
- We reasonably believe that the Secured Property are at risk;
- You or a Guarantor goes into liquidation or bankruptcy, or a receiver is appointed in respect of you or a Guarantor; or
- Anyone else has, or claims, a security interest in the Secured Property.
G. OTHER THINGS YOU AGREE TO
- Indemnify us: You will indemnify us against all costs, losses and expenses we reasonably incur in relation to this agreement, the Secured Property, our Security Interest and the enforcement of our rights under this agreement.
- Payment on demand: We can at any time ask you to pay to us all amounts you owe us under this agreement on demand except (provided you are not in default under this agreement) the moneys you owe us under the Payment Details.
- Set off: We can, at any time without notice, set off any amounts we may owe you (or any Guarantor) against any money you (or the relevant Guarantor) may owe us whether under this agreement or under any other agreement with us.
- Rights and powers separate: We can, but need not, do anything under this agreement at once or after a time or more than once. We can exercise all other rights and powers we have under this agreement or at law. If we do not do something when we are able, that does not mean we are giving up that right or power.
- More than one Customer or Guarantor: If there is more than one of you named as the Customer (or the Guarantor), each of you (and each Guarantor) is individually liable for all money owing under this agreement. This means we can require one of you (or one Guarantor) to pay all money owing under this agreement alone.
- Transfer/Assignment: You agree and acknowledge, and each Guarantor agrees and acknowledges, that we may, at any time, assign and/or transfer any or all of our rights or obligations under this agreement and any Security Interest to any person without your consent or any Guarantor’s consent. If we do this then the person will replace us and have all our rights, title and interest. You agree, and each Guarantor agrees, that we may give such person any information we have relating to you and each Guarantor.
- Notices and disclosures: You agree, and each Guarantor agrees, that any notice or communication to be given by us to you or a Guarantor under this agreement may be given in accordance with sections 185 to 189 of the PPSA and that any information that is required to be disclosed by us to you or a Guarantor under the CCCFA must be made in accordance with section 35 of the CCCFA. You agree, and each Guarantor agrees, that we may make disclosure electronically.
- PPSA verifications: Each Security Provider waives the right to receive a copy of the verification statement confirming registration of a financing statement or a financing change statement.
- Accessions: each Security Provider acknowledges that any accessions which are now or later attached to any Secured Property will be part of the Secured Property.
- Commissions: You agree that we may receive from or pay to dealers, suppliers, insurers or any other person fees, benefits, commissions or anything else.
- Articles left in Secured Property: We are not responsible for any goods left in the Secured Property if the Secured Property are repossessed by us.
- No contracting Out: Nothing in this agreement is intended to contract out of the Consumer Guarantees Act 1993, the Fair Trading Act 1986 or the CCCFA except in the circumstances and to the extent permitted by those Acts.
Guarantee and Indemnity
The Guarantor (“you”):
- guarantee to us payment of all money owed to us under this agreement by the Customer (named in the Disclosure Statement) and performance of all the Customer’s obligations under the agreement;
- indemnify us for any loss or damage we may incur if the Customer does not perform any of its obligations under the agreement or if the agreement becomes void or unenforceable by us for any reason;
- agree that this guarantee will continue until all money owed to us by the Customer is paid back in full and the Customer fulfils all other obligations under the agreement;
- warrant that, where you sign this agreement as an authorised signatory, you have the authority to do so;
You also agree and acknowledge that:
- your liability to us is not affected (and your guarantee to us will continue and is absolute and unconditional in all circumstances even if, for example (with or without you knowing):
· any provision in the agreement is changed;
· we have not taken any action to recover the moneys from the Customer;
· the terms of the agreement are not strictly enforced by us;
- although as between you and the Customer, you may be surely only, as between you and us, you are a principal debtor;
- The General Terms will also apply to you as a Guarantor where stated.