Form of registrable memorandum Section 155A, Land Transfer Act 1952 BARCODE Class of instrument in which provisions are intended to be included MORTGAGE Person executing Memorandum: BANK OF NEW ZEALAND at Auckland The following provisions are intended for inclusion in instruments of the above class: In consideration of the Bank from time to time providing or agreeing to provide banking accommodation or other financial services to, for or at the request of the Mortgagor or in consideration of the Bank forbearing for one day from the day the Mortgagor agrees to these terms to press for payment of past advances, the Mortgagor covenants with the Bank as follows: 44513 04/08
1. Payment of secured moneys 1.1 Mortgagor to pay on demand Subject to any restrictions on the making of any demand which may be imposed on the Bank in any separate written agreement relating to any particular accommodation made available by the Bank, the Mortgagor will on demand (as provided in this mortgage) pay or cause to be paid to the Bank at the office or place of business of the Bank named in such demand, or to any other person or place named in such demand, all the secured moneys. 1.2 Secured moneys The term "secured moneys" means all moneys now or in the future owing or remaining unpaid to the Bank from the Mortgagor (directly or indirectly) whether made available solely to the Mortgagor or jointly with any other person and whether in respect of: moneys advanced or paid to or for the use of the Mortgagor (including further advances), charges incurred on the Mortgagor's account, negotiable instruments drawn, accepted or endorsed by or on behalf of the Mortgagor and discounted or paid or held by the Bank either at the request of the Mortgagor or in the course of the business of the Mortgagor or otherwise, moneys which the Mortgagor may be or become liable to pay to the Bank: (ii) (iii) (iv) on letters of credit established, on any guarantee or indemnity (express or implied) given to the Bank, on any guarantee or indemnity (express or implied) given by the Bank, or in respect of moneys which the Bank may be or become liable to pay on behalf of or at the request of the Mortgagor, (e) (f) (g) (h) moneys owing or unpaid to the Bank by the Mortgagor on any other account or security or in any other manner (including contingent liabilities), moneys held by the Bank on a suspense account and intended to be appropriated by the Bank for or on behalf of the Mortgagor or any of the creditors of the Mortgagor (including the Bank) in respect of contingent or other liabilities of the Mortgagor, all commissions, service charges and other fees, charges and expenses payable or chargeable in accordance with the custom of the Bank, all other costs, charges and expenses, including all legal costs (both party and party and solicitor and client), which the Bank shall pay or incur in connection with the Mortgagor, any account of the Mortgagor, the mortgaged property or this mortgage including any amounts contemplated by section 87 of the Property Law Act 2007, and interest in accordance with the provisions of the next clause on all such moneys until actual payment of such moneys to the Bank. 2. Payment of interest 2.1 Interest payable on moneys secured Subject to any separate agreement relating to any particular accommodation made available by the Bank, the Mortgagor will pay to the Bank interest on the secured moneys until actual repayment at the rate of interest agreed upon (if any) or, in respect of any such moneys where no rate has been agreed upon, 1
interest shall accrue from day to day at such rate (and shall be compounded and paid on such basis) as the Bank may from time to time determine. 2.2 Interest on interest not to constitute a fresh advance Neither interest on which interest shall have become payable nor interest included with the principal amount in any balance carried forward or account stated, shall be deemed to have become capitalised or added to principal so as to constitute a fresh advance by the Bank to the Mortgagor unless the Bank has recorded, by express entry in its books, that it intended to do so. 3. Service of demand and notice 3.1 Making of demand Any demand on or notice to the Mortgagor shall be made in writing addressed to the Mortgagor and signed on behalf of the Bank by any bank officer or any attorney or solicitor authorised to act on behalf of the Bank and, subject to any mandatory provisions in any statute, shall be duly served if: delivered to the Mortgagor personally, addressed to the Mortgagor and left on any part of the mortgaged property, left at, or posted to, the registered office, address for service or the last place of business or residence of the Mortgagor in New Zealand known to the Bank, or served in accordance with any other lawful mode of service. 3.2 Validity of Service Service shall be effective: if the demand or notice is actually received by the Mortgagor, notwithstanding that it may not have been served strictly in accordance with the procedures set out in clause 3.1, and notwithstanding that the Mortgagor may be dead, mentally incapable, insolvent or absent from New Zealand, irrespective of whether such a situation is known to the Bank at the time of service. 4. Unmatured obligations may be included in demand Subject to any restrictions contained in any separate written agreement relating to any particular accommodation made available by the Bank, in making any demand the Bank may include the amount of all bills of exchange, promissory notes, negotiable instruments or other unmatured obligations in respect of which the Mortgagor is liable to the Bank even if one or more of them may not have arrived at maturity. 5. Demand deemed accurate 5.1 Demand to remain valid No error or omission in any demand made by the Bank shall in any way affect the validity of such demand nor shall any action, claim or proceedings be brought against the Bank on the basis of such error or omission, or on the basis of the exercise or enforcement by the Bank of any of its powers, rights or remedies following the non-payment of any moneys included in such demand. 5.2 Excess demand may be claimed back by Mortgagor A demand shall be deemed to be accurate in every respect provided that the Mortgagor shall be entitled to claim from the Bank any sum paid pursuant to such demand in excess of the actual amount due to the Bank if such claim is made in writing by the Mortgagor within one calendar month after the making of such demand. However, the Mortgagor's right of action shall be limited to the claim for such excess and no damages caused by the exercise or enforcement or purported exercise or enforcement by the Bank of any of its powers, rights or remedies pursuant to this mortgage shall be recoverable from the Bank. 2
6. No merger with rights under negotiable instruments The right of the Bank to sue and recover on any promissory note or other negotiable instrument representing any part of the secured moneys shall not be deemed to have merged in this mortgage. 7. No automatic right of set off for Mortgagor The Mortgagor shall not be entitled to claim that any moneys paid into any account (other than an overdrawn account which the Mortgagor has with the Bank) have been paid in reduction of the secured moneys unless the Bank agrees in writing that such moneys may be specifically appropriated. This shall not, however, preclude the Bank from applying any credit balance on any such other account in reduction of the secured moneys in the event the Mortgagor becomes insolvent, nor shall the Bank be deprived of any other right of lien, combination or set off. 8. No effect on other securities or claims Nothing contained in this mortgage shall be held to merge, discharge, abate or prejudice any other security held by the Bank now or in the future to secure the secured moneys. Nor shall this mortgage affect any claim or demand which the Bank now has or in the future may have, against any other person. 9. Continuing security 9.1 Nothing to affect continuing nature of security The security afforded to the Bank by this mortgage shall operate as a continuing security between the Bank and the Mortgagor irrespective of: any sums which may be paid to the credit of any account or accounts of the Mortgagor with the Bank, any settlement of any such account, or any other circumstance. 9.2 Mortgage remains in full force until final discharge This mortgage shall remain in full force and extend to cover any sum of money which may become owing by the Mortgagor to the Bank until a final discharge has been provided to the Mortgagor by the Bank. 10. Bank may debit Mortgagor's account with costs, charges and expenses The Bank shall be at liberty without further authority than this mortgage to debit any account of the Mortgagor with all costs, charges and expenses: incidental to the preparation, completion and registration of this mortgage, and legal or otherwise (including premiums for insurance) which the Bank may pay or incur in connection with: (ii) any account of the Mortgagor, the mortgaged property, (iii) this mortgage and any default under it, or (iv) the exercise or attempted exercise of any right, power, authority or remedy conferred on the Bank under or by virtue of this mortgage or by statute, together with interest on all such moneys at the rate of interest for the time being chargeable to the Mortgagor under clause 2. 3
11. Bank's right to appropriate moneys The Bank shall, notwithstanding any direction to the contrary, have the right (without the need to give notice to the Mortgagor) to appropriate either at the time of payment or at any time afterwards any moneys paid into or standing to the credit of any account of the Mortgagor with the Bank or otherwise coming into the hands of the Bank. Such moneys may be put towards discharging or providing for any part of any liabilities of the Mortgagor as the Bank thinks fit. 12. Certificate to be prima facie evidence of amount of secured moneys A statement of account purporting to be made up from the books of the Bank and signed by any bank officer shall, without it being necessary to produce any documents to verify the same, be prima facie evidence of the amount of all or, as the case may be, any part of the secured moneys. 13. Giving of time not to affect Mortgagor's liability 13.1 No release The Mortgagor shall not be released in respect of the Mortgagor's liability by the giving of time or indulgence (or by reason of any other circumstance) to any other person. 13.2 Each Mortgagor liable as principal debtor Where there is more than one person who is Mortgagor, then notwithstanding that as between them one or more may be a surety only, each of the persons named as Mortgagor shall be deemed to be a principal debtor in respect of the secured moneys. The other provisions of this mortgage shall be construed accordingly. 14. Mortgaged property to be kept in good repair 14.1 Maintenance of property The Mortgagor will maintain and protect the mortgaged property and keep it in a good and tenantable state of repair and in good working order and condition. The Mortgagor will also, on being required to do so by the Bank, immediately: correct every defect in the repair or condition of the mortgaged property, and paint in a proper manner such parts of the mortgaged property as are usually painted. 14.2 No alterations to be made The Mortgagor will not, without the prior written consent of the Bank, pull down, alter or remove any part of the mortgaged property. 15. Compliance 15.1 Laws The Mortgagor: shall comply with and observe all statutes, regulations and by-laws and all requirements and orders of any authority (statutory or otherwise) in all cases in which non-compliance or non-observance might impose some charge or liability upon any part of the mortgaged property or prejudicially affect this mortgage, and shall not do or suffer anything whereby any charge or liability could be imposed upon any part of the mortgaged property in priority to, pari passu with or otherwise detrimental to the security created by this mortgage. 15.2 Agreements The Mortgagor will punctually perform and comply with all conditions imposed on the Mortgagor under any agreement, deed, guarantee, indemnity or other obligation entered into or undertaken by the Mortgagor with or in favour of the Bank. 15.3 Prior Mortgages The Mortgagor will punctually pay all moneys secured by, and perform and observe all the covenants and agreements contained in, every prior mortgage. 4
16. Building consents and notices 16.1 Building consents The Mortgagor will take all steps necessary to obtain, keep current and ensure the continuation of any building consent required to be held pursuant to the Building Act 2004 in relation to the mortgaged property. 16.2 Notification to Bank The Mortgagor shall, in relation to the mortgaged-property, immediately upon becoming aware of the same, notify the Bank in writing of: the lapse or cancellation of any building consent, the issue of any notice to fix, and any notice issued in respect of dangerous or insanitary buildings, pursuant to the Building Act 2004. 16.3 Compliance with conditions and notices The Mortgagor will, in relation to the mortgaged property: comply promptly with all notices received by the Mortgagor and any other requirements issued to the Mortgagor under, the Building Act 2004, comply promptly with all conditions applying to any building consents, and obtain the Bank's written consent prior to any change of use of any building which would require the consent of the relevant territorial authority. 16.4 Provision of copies of documents to Bank The Mortgagor will provide to the Bank copies of all code compliance certificates, compliance schedules, annual building warrants of fitness or advice of proposals for change of use or extension of life of a building (beyond its specified intended life) issued or supplied pursuant to the Building Act 2004 in relation to the mortgaged property. 17. Resource consents and authorisations 17.1 Compliance by Mortgagor The Mortgagor will: obtain, give effect to, exercise, keep current and renew all resource consents and authorisations necessary in respect of the Mortgagor's continuing business or in respect of land owned or occupied by the Mortgagor, and comply with all enforcement orders, abatement notices or other requirements issued to the Mortgagor under the Resource Management Act 1991, and with all conditions applying to resource consents and authorisations held by the Mortgagor. 17.2 Mortgagor not to deal with consents or authorisations The Mortgagor will not surrender, transfer, grant security over, apply for the change or cancellation of any condition of, or deal or dispose in any other way with, any such consent or authorisation without the prior written consent of the Bank. 17.3 Notification to Bank The Mortgagor will immediately advise the Bank in writing of any notification of any application, plan change or other matter received from any consent authority in relation to the mortgaged property pursuant to the Resource Management Act 1991. 17.4 Notification of environmental liabilities The Mortgagor will promptly notify the Bank of all actual or potential environmental liabilities which arise in relation to the mortgaged 5
property and shall provide the Bank with full details of all actions taken or proposed to be taken. 18. Payment of rates and other outgoings The Mortgagor will at all times, as and when they become payable, pay and discharge all rates, taxes, charges, assessments, impositions and outgoings imposed upon or payable by the Mortgagor in respect of any part of the mortgaged property. 19. Farmland The Mortgagor will, where the mortgaged property is used (or is suitable for use) for agricultural, pastoral or horticultural purposes: cultivate, fertilise and manage the mortgaged property in accordance with accepted principles of farm management so as to maintain its productivity, keep the mortgaged property clear of noxious animals and plants, take all reasonable steps to control disease in crops, pastures, plants and stock, and not, without the Bank's prior written consent, make any material change in the type of farming conducted on the mortgaged property. 20. Leases and licences 20.1 Valid lease/licence Where the mortgaged property consists of a lease or licence, the Mortgagor confirms that such lease or licence is valid and subsisting and is not liable to forfeiture or cancellation and that the rent and all the conditions of such lease or licence have been paid and observed. 20.2 Mortgagor's ongoing obligations The Mortgagor will: (e) pay the rent and will observe all the conditions expressed or implied in such lease or licence, and keep the Bank indemnified against all expenses and claims or account of non-payment of the rent or non-compliance with any conditions of the lease or licence, during the continuance of this mortgage, at the cost of Mortgagor, do all acts, matters or things which shall be necessary or (in the Bank's opinion) expedient for obtaining or attempting to obtain an extension or renewal of such lease or licence or a new lease or licence, where the lease confers the right to purchase the fee simple and the Mortgagor acquires the fee simple of that land in the manner provided by such lease, ensure that the Bank obtains a valid mortgage of the fee simple of the mortgaged property for the purpose of further securing the secured moneys, take all reasonable steps to ensure compliance by the lessor or the licensor with the lessor's or the licensor's obligations under the lease or licence and, if this is a mortgage of a cross lease, by the respective lessees of their obligations under the other cross leases, and immediately after receiving the same, provide the Bank with copies of: any notice relating to the mortgaged property and issued under the Property Law Act 2007, and (ii) any correspondence or notices relating to the initiation of any arbitration proceeding in respect of the lease or any relevant cross lease (and the Mortgagor 6
21. Licensed premises shall comply with the Bank's written directions as to the conduct of any such arbitration). If the mortgaged property consists of "licensed premises" as that term is defined in the Sale of Liquor Act 1989, the Mortgagor shall: manage the premises and conduct the business in a quiet and orderly manner and will not do anything which results, or could result, in the suspension or cancellation of the relevant licence, apply for, obtain and renew any licence or temporary authority necessary for conducting the business carried out on the mortgaged property, and permit and assist the Bank to apply for a renewal of the relevant licence or a new licence (if required) upon expiry or cancellation for whatever reason of the original licence. 22. Unit Titles Act If the estate and interest of the Mortgagor in the mortgaged property shall include a stratum estate as defined by the Unit Titles Act 1972 then: The Mortgagor shall during the continuance of this mortgage: duly and punctually pay to the body corporate all moneys payable by the Mortgagor pursuant to the Unit Titles Act 1972 and the rules of the body corporate and otherwise comply with the Mortgagor s obligations under that Act and those rules, and (ii) if required by the Bank, keep and maintain a mortgage redemption insurance policy in the name of the Bank in accordance with section 39 of the Unit Titles Act 1972 for an amount not less than the secured moneys and the moneys secured under any other mortgage over the mortgaged property notwithstanding that a mortgagee under any prior mortgage may not require the Mortgagor to effect any similar insurance. Where the Mortgagor is required to maintain a mortgage redemption insurance policy, notwithstanding anything contained or implied in this mortgage, the secured moneys shall become due and payable and may be called up by the Bank in the event of the destruction of, or damage to, the mortgaged property. The Mortgagor's voting rights under the Unit Titles Act 1972 may be exercised by the Bank subject to section 41(2) of that Act, and the Mortgagor shall not vote on any resolution put at a meeting of the body corporate requiring a unanimous vote for its passing without the prior written consent of the Bank and then the Mortgagor shall - vote only as directed by such consent. 23. Obligation to insure 23.1 Mortgagor to insure against fire and other risks The Mortgagor will keep insured all buildings (as that term is defined in the Building Act 2004) and other effects or property situated on the mortgaged property against loss or damage by fire, flood, storm, natural disaster (as that term is is defined in the Earthquake Commission Act 1993) and any other risk required by the Bank in the names of the Mortgagor and Bank for their respective rights and interests and for their full insurable value with loss payable to the Bank, with an insurance office acceptable to the Bank and, if the Bank requires, on normal replacement terms. The Mortgagor shall deliver, or arrange for delivery, to the Bank evidence that such 7
insurance has been effected and shall confirm, or arrange for confirmation, that the Bank's interests have been duly noted by the insurer. The Mortgagor shall also, if requested by the Bank, (but subject to clause 23.2) provide all policies and certificates of insurance to the Bank. 23.2 Prior Mortgage Where this mortgage is not a first mortgage, the prior mortgagee may hold the policies and certificates of insurance, but the Bank's interest in the mortgaged property must nonetheless be noted. 23.3 Payment of premiums The Mortgagor will pay all premiums and sums of money necessary for the purpose of ensuring that the insurance does not expire and will immediately advise the Bank of the cancellation of any such insurance and the appointment of a new insurer. Any new insurance must be obtained on the basis set out in clause 23.1 and the Mortgagor shall provide the evidence (and, if requested, the documents) required pursuant to clause 23.1 in respect of any insurance issued by a new insurer. 23.4 Where building destroyed or damaged In the event of any buildings being destroyed or damaged all moneys received by the Bank under any such insurance shall be applied at the sole option of the Bank either towards reinstating the buildings and other effects or property or towards payment of the moneys remaining unpaid under this mortgage notwithstanding that demand for payment may not have been made by the Bank. 24. Bank may make good Mortgagor's default 24.1 The Bank's right to make good If the Mortgagor makes default in duly performing or observing any covenant or agreement the Bank may, without prejudice to any other right, power or remedy of the Bank, do all things and pay all moneys necessary or expedient (in the opinion of the Bank) to make good any such default to the satisfaction of the Bank. 24.2 Any moneys paid to be secured All moneys so paid shall be repayable by the Mortgagor upon demand and shall be deemed to be secured moneys under clause 1.2. 25. Right of inspection Subject to any restrictions on the Bank contained in any statute, any bank officer or any attorney, solicitor or other person authorised by the Bank may enter, without notice, the mortgaged property at all reasonable times to inspect its state and condition. 26. Power of sale upon default 26.1 Rights of Bank If: default is made in the payment of any part of the secured moneys immediately after demand has been made, or breach or default is made in the observance of any condition contained or implied in this mortgage or contained or implied in any other security held from the Mortgagor by the Bank, then, in addition to any powers granted to the Bank by law, the Bank may at, or after, such time (but subject and without prejudice to the limitations contained in the Land Act 1948, and subject to any mandatory provisions of law) sell the mortgaged property, or any part of it. 26.2 Application of Proceeds The Bank must apply the money arising from any sale in accordance with section 185 of the Property Law Act 2007. 8
27. Right to enter into possession of premises upon default Upon the power of sale conferred on the Bank (subject to any mandatory provisions of law) becoming exercisable the Bank may: enter upon and manage any part of the mortgaged property, let or demise any part of the mortgaged property to any person subject to such conditions as the Bank thinks fit, accept surrenders of, or determine, any leases or tenancies then existing in respect of any part of the mortgaged property, and make arrangements with: (ii) (iii) the lessees, tenants or occupiers of any part of the mortgaged property, any holder of any encumbrance, lien or charge over any part of the mortgaged property, and any caveator or other claimant in respect of any part of, or any interest in, the mortgaged property. 28. Appointment of receiver 28.1 Appointment following demand or default Subject to clause 28.2 below, in addition to any other right, power or remedy of the Bank expressed or implied in this mortgage, where any of the events in clause 26.1 and has occurred, the Bank may at anytime appoint in writing any person (whether an officer of the Bank or not) to be a receiver of the income of all or part of the mortgaged property. 28.2 Receiver's powers Every appointment of a receiver shall be subject to the following provisions: the receiver may be appointed notwithstanding that the power of sale conferred by this mortgage may not have become exercisable, the receiver shall be deemed to be the agent of the Mortgagor who shall be solely responsible for the receiver's acts or defaults whether such acts or defaults shall be done or made in relation to the purposes mentioned in this mortgage or otherwise, subject to any mandatory provisions of law, the receiver shall have the power: (ii) to demand and recover (and give receipts in respect of) all the income of the mortgaged property by issuing proceedings, making applications, effecting distress or otherwise in the name either of the Mortgagor or the Bank to the full extent of the estate or interest of the Mortgagor, and to exercise any powers which may have been delegated to the receiver by the Bank pursuant to this mortgage, the receiver shall have the power to make arrangements with the lessees, licensees and occupiers of the mortgaged property as the receiver thinks fit and generally to do or to take such acts, things or proceedings for the determination of any lease or licence or the recovery of the possession of any part of the mortgaged property and to create such new leases or licences of any part of the mortgaged property as the receiver shall think fit, 9
(e) (f) no person paying money to or otherwise dealing with the receiver shall be concerned to inquire whether the powers which the Bank or the receiver purports to exercise have become exercisable or as to the necessity for, or expediency of, any of the actions or requirements of the receiver or otherwise as to the propriety or regularity of any such actions or requirements or to see to the application of any money paid to the receiver and the remedy of the Mortgagor in respect of any irregularity in the execution of the powers of the receiver shall be in damages only, the receiver may: (ii) insure and keep insured against loss or damage, out of the money received by the receiver, any buildings, effects or property comprised in or situated on the mortgaged property, and effect any necessary repairs and maintenance to such buildings, effects or property on the mortgaged property, (g) (h) (j) (k) (l) for the purposes expressed or implied in this mortgage the receiver shall have the power to appoint managers, officers and agents upon such terms as the receiver may determine, the receiver shall have the power to execute in the name and on behalf of the Mortgagor all such documents as may be necessary or expedient for any of the purposes expressed or implied in this mortgage and for such purposes may use the common seal (if any) of the Mortgagor, the receiver shall have the power to do all such other acts and things as may be considered to be incidental or conducive to any of the matters and powers which the receiver may do as agent for the Mortgagor, no action by the Bank or the receiver pursuant to this clause, including entry into possession of any part of the mortgaged property by the receiver, shall render the Bank or any receiver liable to account as mortgagee in possession, where two or more receivers have been appointed such receivers shall be authorised to act jointly and severally, the receiver may be removed and a new receiver may be appointed at any time by the Bank in writing, and (m) the receiver shall apply all moneys received by the receiver as follows: FIRST in discharging rents, taxes, rates, charges, assessments and outgoings, including the cost of repairing and insuring any part of the mortgaged property, payable in respect of the mortgaged property which the Mortgagor as lessor of the mortgaged property would under the covenants in the respective leases of the mortgaged property be liable to pay or which shall not otherwise be paid, SECOND in payment of: (ii) all instalments of principal, interest or other moneys secured by any security having priority to this mortgage as and when they become due and payable, and the costs and expenses of and incidental to the appointment of the receiver and the exercise by the receiver of all or any of the receiver's powers, THIRD in payment of the reasonable remuneration of the receiver, FOURTH in payment to the Bank of interest accruing due or remaining unpaid in accordance with this mortgage, 10
FIFTH in or towards discharge of the remaining secured moneys if so directed in writing by the Bank, and SIXTH in payment of any residue to the Mortgagor or other person who, but for the appointment of the receiver, would have been entitled to receive the income of the mortgaged property or who is otherwise entitled to the mortgaged property. 29. Power of attorney The Mortgagor irrevocably appoints the Bank, the Managing Director of the Bank, every General Manager, Head of a Division and Manager of the Bank, the assigns of the Bank and every receiver appointed under this mortgage, severally, the attorney of the Mortgagor to: make and sign any instrument, deed or document and do any other act or thing that the attorney shall, in the attorney's discretion, deem necessary or expedient for the purpose of: (ii) giving complete effect to this mortgage and to the exercise and execution of the powers, rights and authorities contained or implied in this mortgage, and the protection or perfection of this mortgage, for the purpose of clause 20, give any security by way of mortgage of any such renewed, extended or new lease or licence to secure the payment (in the manner provided by this mortgage) of the secured moneys, enter into, execute and register any instrument necessary or expedient for any of the purposes specified in clause 20 including requests to the Registrar-General of Land under the Land Transfer Act 1952, and for any of these purposes, appoint or replace a substitute. Registration of a mortgage incorporating the provisions of this memorandum in the Land Registry Office shall have the effect of depositing this power of attorney in that office in relation to that mortgage. 30. Modification of statutory provisions implied in mortgages The covenants, powers and provisions implied in mortgages by virtue of the Property Law Act 2007 and the Land Transfer Act 1952 shall, for the purposes of this mortgage, be negatived or modified in so far as any of them contradict, or are inconsistent with, these terms. 31. Discharge of mortgage upon payment The Mortgagor shall be entitled to a discharge of this mortgage only upon payment of all the secured moneys and the reasonable costs of the Bank of and incidental to such discharge. 32. Purchase money and compensation to be paid to the Bank Subject to the rights of the registered proprietor of a prior encumbrance, lien or interest, all moneys which become payable by way of purchase money or compensation or otherwise in respect of any part of the mortgaged property shall be paid to the Bank. 33. Bank's rights to claim, settle and compromise 33.1 Purchase money, compensation and insurance The Bank may, without regard to the Mortgagor, claim, agree upon, compromise and settle all purchase money or compensation or insurance claims payable to the Bank or the Mortgagor. 11
33.2 Execution of releases In respect of clause 33.1, the Bank may execute releases in the name of the Bank or in the name of the Mortgagor. 34. No obligation on Bank to exercise rights 34.1 Powers, rights and authorities The Bank shall not be obliged to exercise any power, right or authority contained or implied in this mortgage or vested in the Bank under any statute. 34.2 Bank not liable for loss Except to the extent of any statutory obligations, the Bank shall not be accountable for any loss resulting from its omission or delay to exercise any such power, right or authority. 35. No waiver Delay by the Bank in exercising any of its rights, remedies and powers upon the breach of any covenant, condition or agreement contained or implied in this mortgage shall not operate as a waiver of, nor prevent the Bank from exercising, any such rights, remedies and powers. 36. No inquiries as to the Bank's powers required No person dealing with the Bank or its agents shall be concerned to inquire: (e) (f) whether the security conferred by this mortgage has become enforceable, whether the powers which the Bank or such agent is purporting to exercise have become exercisable, whether any money remains due or unpaid on the security of this mortgage, as to the necessity for or expediency of the stipulations or conditions subject to which any sale, lease, mortgage or surrender shall be made, otherwise as to the propriety or regularity of any sale, lease, mortgage, surrender, calling in, collection or conversion of any moneys or property, or as to the application of any moneys paid to the Bank or its agent. 37. No further security to be granted The Mortgagor will not during the continuance of this mortgage create or execute in favour of any person other than the Bank a further mortgage or other security over any part of the mortgaged property without the prior written approval of the Bank. If the Bank receives notice from the Mortgagor or any other source whatsoever that the Mortgagor intends to give or has given such further security then, whether such intention exists or whether such further security shall have been given, the Bank shall be under no obligation to make any further advances, nor provide any further accommodation, to the Mortgagor pursuant to any separate agreement to the contrary. 38. Interpretation In this mortgage: headings are for convenience only and do not affect the meaning of any clause, references to any party, include that party's permitted successors and assigns, unless the context requires otherwise, references to: 12
"the Bank" shall be references to Bank of New Zealand and its successors and assigns, (ii) "this mortgage" shall be references to this memorandum read together with the mortgage form executed by the Mortgagor, which incorporates these terms, (ii) "the Mortgagor" shall, if there is more than one, mean each and any of them, (iv) "insolvent" shall mean bankrupt, insolvent, in voluntary administration, in liquidation, wound up, dissolved, removed from the register or subject to any arrangement or composition with creditors, (v) (vi) the singular number shall include the plural and vice versa, personal pronouns and other references to persons shall include corporations and other entities, (vii) any statute shall include references to that statute as modified, re-enacted or substituted, and (viii) personal representatives shall include the liquidator of a corporation or a limited partnership. 39. Joint and several obligations If this mortgage is given by more than one person, the covenants and agreements contained and implied in this mortgage shall bind the Mortgagors jointly and severally. 40. Privacy Act 40.1 Bank may use information The Mortgagor authorises the Bank to use information about the Mortgagor at any time held by the Bank and any of its related companies for the purpose of establishing and maintaining the relationships between the Mortgagor and the Bank and any of its related companies. 40.2 Bank may disclose information Without limitation the Bank is authorised to disclose information about the Mortgagor: (e) to National Australia Bank Limited and any of the Bank s other related companies (as defined in section 2(3) of the Companies Act 1993, save that references in that section to company shall mean a company or corporation whether incorporated or constituted in New Zealand or elsewhere) for the purpose of credit, risk and prudential assessment, to any holder of a security over any property of the Mortgagor which is also secured to the Bank (including the mortgaged property), to any insurer of such property, to any person performing services in connection with such property, and in the event of default in payment of the secured moneys, to any credit agency, provided that any such disclosure is confined to that reasonably required by such person. 40.3 Bank may obtain information The Mortgagor authorises the Bank to make credit and other inquiries about the Mortgagor within its normal procedures and to obtain information about the Mortgagor from: 13
any holder of a security over any property of the Mortgagor which is also secured to the Bank (including the mortgaged property), any insurer of such property, any government, territorial or other authority having jurisdiction in respect of such property, and any person performing services in connection with such property, provided that the information obtained is confined to that reasonably required by the Bank. 40.4 Authority The agreement of the Mortgagor to the terms of this mortgage shall be sufficient authority to the persons stipulated in clause 40.3 above to provide the relevant information to the Bank. 41. Priority - Section 92 Amount The priority amount stated in this mortgage (the stated priority limit ) is for the purposes of Section 92 of the Property Law Act 2007 (and subject to the provisions of any priority agreement executed by the Bank after the date of this mortgage) the maximum amount up to which the secured moneys shall rank in priority to any subsequent mortgage, security interest, charge, lien or encumbrance but this clause shall not be construed as a waiver of priority in respect of any of the moneys that may exceed that amount or as a representation of the total amount capable of being secured by this mortgage. 42. Trustee 42.1 If the Mortgagor is a trustee of a trust then this clause applies to that Mortgagor and the Mortgagor: gives the Bank an assurance that the Mortgagor has the power and authority as a trustee of that trust to enter into this mortgage and that the Mortgagor is doing so for a proper purpose, will use best endeavours to ensure that, on the appointment of any new or replacement trustee of the trust, that trustee and the existing Mortgagor enters into a new mortgage in the Bank's favour on identical terms to this mortgage (including this term), and will if the Mortgagor ceases to be a trustee of the trust immediately notify the Bank of this in writing. 42.2 If the Mortgagor enters into this mortgage as a trustee of a trust, acting in an independent capacity and having no interest in the assets of the trust other than as trustee, then such a trustee is liable under this mortgage only to the extent of the value of the assets of the trust available from time to time to meet his/her/their/its liability to which shall be added the sum (if any) by which the value has been diminished by any breach of trust caused by his/her/their/its willful default or dishonesty. For the purpose of clarification (but without limitation), a Mortgagor is not acting independently and has an interest in the assets of the trust if that person is a beneficiary, discretionary beneficiary, settlor or appointor in relation to the trust unless otherwise agreed to in writing. 42.3 For the purposes of section 128 of the Land Transfer Act 1952, none of these clauses applicable to trustees are to be, or are to be construed as, notice of any trust. 43. Building and Other Works 43.1 If any development works (as defined in clause 43.3) are in the course of being, or are intended to be, carried out then the Mortgagor agrees to immediately and continuously 14
proceed with the development works until completion in a workmanlike manner and in accordance with plans and specifications submitted to and approved by the Bank and, where applicable, in accordance with a building consent or other approval or consent issued by the relevant authority. 43.2 In exercising, in relation to clause 43.1, the powers contained in this mortgage, the Bank may complete the development works with such variations to the plans and specifications as the Bank considers expedient and may do anything necessary or expedient in the Bank's opinion to remedy, prevent or mitigate deterioration in the development works. 43.3 In this clause 43, development works includes the subdivision, development or improvement of the land and also includes the construction, development, alteration or repair of any buildings or other improvement on the land. 44. Forestry Right If the mortgaged property is a forestry right, the Mortgagor will: comply with all obligations on the Mortgagor's part to be performed or observed contained in the forestry right, cause all work required to establish, maintain, manage and harvest the trees subject to the forestry right to be carried out in a proper manner in accordance with recognised good forestry practices, with all reasonable skill and effort required in the circumstances and in accordance with the terms and conditions of any applicable legislation, carry out regular inspections as to the health of the trees the subject of the forestry right, conditions of access and fences, presence of noxious weeds, pests and fire dangers and take all such remedial action as would be taken by a prudent forest owner to eliminate or, if elimination is not possible, to minimise any condition found to be present which might endanger the health or potential value of the trees subject to the forestry right, and ensure that measures are taken and records kept, maintained and audited in respect of the trees subject to the forestry right at such intervals as may be required for compliance with the New Zealand Forest Research institute's "pruned stand certification scheme". Dated this day of 200 Execution Signed by BANK OF NEW ZEALAND by its duly authorised attorneys in the presence of: Witness signature Witness name Occupation 15
MEMORANDUM No. 2008/4261 Land Transfer Act 1952 MORTGAGE Registered pursuant to Section 155A Land Transfer Act 1952 Registrar-General of Land Land Registry (Abstract No /date )