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1. Introduction 1
1.1. Context 1
1.2. Approach to market and establishment of the Panel 1
1.3. Panel arrangements 2
1.4. Panel size 3
1.5. Key terms 3
1.6. Governing law 4
3. Lodging Tenders 5
3.1. Electronic lodgement 5
3.2. Preparing to lodge a Submission 5
5. Information management 6
5.1. NHFIC’s confidential information 6
5.2. Respondent’s confidential information 7
5.3. Use of Submission documents 7
8. General matters 12
8.1. Prices and units 12
8.2. Joint or Part Submissions 12
9. Evaluation of Tenders 12
9.1. Evaluation process 12
RFP for the establishment of a panel of lenders for the First Home Loan Deposit Scheme (FHLDS) Page i
9.2. Security, probity and other checks 13
9.3. Minimum Content and Format Requirements 13
9.4. Conditions for participation 13
9.5. Clarification, short-listing and negotiations 14
RFP for the establishment of a panel of lenders for the First Home Loan Deposit Scheme (FHLDS) Page ii
REQUEST FOR PROPOSAL
REQUEST FOR PROPOSAL FOR THE ESTABLISHMENT OF A PANEL OF LENDERS
TO ADMINISTER THE FIRST HOME LOAN DEPOSIT SCHEME (FHLDS)
1. Introduction
1.1. Context
1.1.1. The National Housing Finance and Investment Corporation (NHFIC) is
responsible for implementing the First Home Loan Deposit Scheme (Scheme),
an Australian Government initiative to assist eligible first home buyers access
the housing market more quickly.
1.1.2. The NHFIC is seeking to partner with lenders to administer the Scheme. To that
end, the NHFIC is proposing to establish a panel of Major Bank Lenders and
Non-Major Bank Lenders to participate in administering the Scheme.
1.1.3. Under the Scheme, the NHFIC will provide a guarantee in favour of participating
lenders that have funded eligible loans to eligible borrowers. Up to 10,000
Scheme backed loans nationally will be able to take the benefit of the Scheme
in each financial year.
1.1.4. A summary of the NHFIC and a detailed description of the Services to
administer the Scheme are set out in Schedule 1.
1.1.5. The implementation of the Scheme will be subject to directions from the
Australian Government as set out in the NHFIC’s Investment Mandate. An
updated draft of the Investment Mandate has been released by the
Commonwealth Department of the Treasury for public consultation and is
available here www.treasury.gov.au/consultation .
RFP for the establishment of a panel of lenders for the First Home Loan Deposit Scheme (FHLDS) Page 1
• Westpac Banking Corporation (ACN 007 457 141) and any entity that
is a related body corporate;
Note: a related body corporate has the meaning given to that term in the
Corporations Act 2001 (Cth);
b. a Non-Major Bank Lender is a credit provider (as defined in the National
Credit Code) that:
• is not a Major Bank Lender; and
• holds an Australian credit licence under the National Consumer Credit
Protection Act 2009 (Cth) (NCCP Act) regulated by the Australian
Securities and Investments Commission (ASIC) or is exempt from the
requirement to hold such a licence under the NCCP Act.
1.2.4. At the commencement of the Scheme, the requirements for administering the
Scheme will be substantially the same for the Major Bank Lender sub-panel and
the Non-Major Bank Lender sub-panel however the allocation of guaranteed
places and the timeframes for responding to this RFP and implementing the
Scheme will differ as between the two sub-panels (refer to paragraphs 1.3, 1.4
and item 2.3 of Schedule 1 below).
1.2.5. For the purposes of this RFP, only one legal entity within each Major Bank
Lender group should submit a Submission responding to this RFP. In its
Submission a Major Bank Lender may identify any related bodies corporate or
divisions within its Major Bank Lender group that it wishes to nominate to
promote and administer the Scheme.
1.2.6. If a situation arises where two (or more) legal entities within a Major Bank
Lender group lodge Submissions in response to this RFP, the NHFIC may in its
absolute discretion:
a. exclude one (or more) of the tendered Submissions; or
b. assess both (or all) Submissions,
on the basis that only one of the Submissions may form the basis of any
resultant Participating Lender Deed should that Major Bank Lender be selected
by the NHFIC to be appointed to the Panel.
1.2.7. Respondents are advised that this RFP is not a covered procurement for the
purposes of the Commonwealth Procurement Rules and the Government
Procurement (Judicial Review) Act 2018 (Cth).
RFP for the establishment of a panel of lenders for the First Home Loan Deposit Scheme (FHLDS) Page 2
1.3.2. The Scheme is expected to commence on 1 January 2020 (Commencement
Date) with the Panel having an initial term of 2 ½ years.
1.3.3. Respondents are advised that the NHFIC may, at any time during the
anticipated 2 ½ year term of the resulting Participating Lender Deed, undertake
a further approach to market to refresh the Panel (Panel Refresh).
1.3.4. Any Panel Refresh will be conducted in accordance with the arrangements
issued at that time, and may result in new lenders being added to the Panel
and/or the extension of existing Panellists’ appointment to the Panel.
1.3.5. Respondents should also note that the NHFIC does not intend to enter into any
significant negotiations on the draft Participating Lender Deed (including the
Scheme Rules). To the extent that the NHFIC does agree to any minor changes
to the terms and conditions outlined in the draft Participating Lender Deed, the
NHFIC may make identical, or substantially similar changes to any resultant
Participating Lender Deeds for all successful Respondents.
RFP for the establishment of a panel of lenders for the First Home Loan Deposit Scheme (FHLDS) Page 3
Deadline for For the Major Bank Lenders sub-panel:
Submission of 4pm Sydney time on Monday 4 November 2019
Respondents’
Questions
For the Non-Major Bank Lenders sub-panel:
4pm Sydney time on Tuesday 12 November 2019
Investment the National Housing Finance and Investment
Mandate Corporation Investment Mandate Direction 2018
(a direction made by the Treasurer under section 12(1) of
the National Housing Finance and Investment
Corporation Act 2018 (Cth)) of which an updated draft
has been released by the Commonwealth Department of
the Treasury for public consultation, available here
www.treasury.gov.au/consultation
NHFIC the National Housing Finance and Investment
Corporation
Offer Period means 180 days from the relevant Closing Time
Panel the panel of lenders established through this RFP
process to administer the Scheme
Panellists the lenders appointed by the NHFIC to the Panel through
this RFP process
Participating the document set out in draft terms in Schedule 3
Lender Deed
Respondent any entity which lodges a Submission or, where the
context requires, is proposing to lodge a Submission
Response the RFP Response Forms set out in Schedule 2
Forms
RFP this Request for Proposal
Scheme Rules means the rules applicable to Panellists for administering
the Scheme as in force from time to time
Services the services set out in Schedule 1
Submission any proposal submitted in response to this RFP.
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2. Obtaining RFP documentation
3. Lodging Tenders
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Major Banks interested in participating in an industry briefing are requested to
email the Contact Officer to arrange a time on one of the above days.
Industry briefing for Non-Major Bank Lenders:
1-3pm Sydney time Wednesday 6 November
2019
Level 10 Export House, 22 Pitt Street, Sydney
4.1.2. Attendance at the industry briefing is optional, however Respondents are
encouraged to attend.
4.1.3. No more than 2 representatives from each Respondent should attend the
briefing. Respondents should provide written notice to the Contact Officer no
later than the day before the relevant industry briefing setting out the names
and contact details for all persons who will be attending the industry briefing.
Attendees who have not been notified to the Contact Officer by this time may be
refused entry to the industry briefing.
5. Information management
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5.2. Respondent’s confidential information
5.2.1. Subject to paragraphs 5.2.2 and 5.2.3, the NHFIC will treat as confidential all
Submissions received by the NHFIC in connection with this RFP.
5.2.2. The NHFIC will not be taken to have breached any obligation to keep
information provided by Respondents confidential to the extent that the
information:
a. is disclosed by the NHFIC to its advisers, officers, employees or
subcontractors solely in order to conduct the RFP process or to prepare
and manage any resultant Participating Lender Deed;
b. is disclosed to the NHFIC’s internal management personnel, solely to
enable effective management or auditing of the RFP process;
c. is disclosed by the NHFIC to the responsible Minister or in response to a
request by a House or a Committee of the Parliament of the
Commonwealth of Australia;
d. is shared by the NHFIC within the NHFIC’s organisation or with another
Commonwealth agency;
e. is authorised or required by law to be disclosed; or
f. is in the public domain otherwise than due to a breach of the relevant
obligations of confidentiality.
5.2.3. The NHFIC will only keep information contained in, or obtained or generated in
performing, any resultant Participating Lender Deed entered into with a
successful Respondent, including any information sourced from the successful
Respondent's Submission, confidential in accordance with the terms of the
Deed. Respondents should include in their Submissions any request for such
information to be treated as confidential following their entry into any resultant
Participating Lender Deed.
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a. prepare their Submission with the improper assistance of any current or
former NHFIC or Commonwealth officer or employee or the use of any
information improperly obtained or in breach of an obligation of
confidentiality;
b. engage in any collusive tendering, misleading or deceptive conduct, anti-
competitive conduct, or any other unlawful or unethical conduct with any
other Respondent or any other person in connection with the preparation of
their Submission or the RFP process;
c. attempt to solicit information from or influence improperly any current or
former officer, employee, contractor or agent of the NHFIC, or violate any
applicable laws or Commonwealth policies regarding the offering of
inducements in connection with the RFP process;
d. otherwise act in an unethical or improper manner or contrary to any law.
6.1.2. The NHFIC may exclude from consideration any Submission lodged by a
Respondent that has engaged in any behaviour contrary to paragraph 6.1.1.
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6.3. Application of law and Commonwealth policy
6.3.1. Respondents are considered to have familiarised themselves with all relevant
Commonwealth legislation and policies relating to the RFP process and the
provision of the Services including:
a. Division 137.1 of the Criminal Code which makes it an offence to knowingly
provide false or misleading information to a Commonwealth entity;
b. the Auditor-General Act 1997 (Cth) which allows the Auditor-General to
conduct a review or examination, at any time, of any aspect of the
operations of Australian Government agencies;
c. the Privacy Act 1988 (Cth) (Privacy Act) which aims to ensure that
contractors and their subcontractors do not engage in an act or practice
that would breach an Australian Privacy Principle under the Privacy Act if
done by the Commonwealth. The Privacy Act also imposes obligations
directly on contractors and subcontractors; and
d. the Work Health and Safety Act 2011 (Cth) which requires a person
conducting a business or undertaking to ensure the health and safety of all
workers.
RFP for the establishment of a panel of lenders for the First Home Loan Deposit Scheme (FHLDS) Page 9
Item Evaluation criterion
6 The capacity of the Respondent to implement and promote the
Scheme:
a. For Major Bank Lenders: from 1 January 2020
b. For Non-Major Bank Lenders: before 1 March 2020.
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a. examined this RFP, including any variations or addenda to the RFP, any
documents referenced in this RFP and any other information made
available by the NHFIC to Respondents;
b. examined all further information obtainable by reasonable inquiries relevant
to the risks, contingencies, and other circumstances having an effect on
their Submissions;
c. satisfied themselves as to the correctness and sufficiency of their
Submissions;
d. made their own independent assessments of actual workload requirements
under any resultant Participating Lender Deed and any associated costs;
and
e. satisfied themselves as to the terms and conditions of the draft Participating
Lender Deed (including Scheme Rules) and Deed of Guarantee and their
ability to comply with the Participating Lender Deed and Scheme Rules,
subject to their responses to the Statement of Non-Compliance in Schedule
2.
7.2.4. In preparing their Submissions, Respondents must not rely on:
a. any representation, letter, document or arrangement, whether oral or in
writing, or other conduct as adding to or amending this RFP other than
amendments in accordance with paragraphs 2.1.1 and 4.3; or
b. any warranty or representation made by or on behalf of the Commonwealth
or the NHFIC, except as are expressly provided for in this RFP.
7.2.5. The NHFIC will not be responsible for any costs or expenses incurred by
Respondents in complying with the requirements of this RFP.
7.3. Disclaimer
7.3.1. This RFP is an invitation to treat and is not to be taken to be or relied upon as
an offer capable of acceptance by any person or as creating any form of
contractual (including a process contract), quasi contractual, restitutionary or
promissory estoppel rights, or rights based on similar legal or equitable
grounds, whether implied or otherwise.
7.3.2. The NHFIC is not liable to any Respondent on the basis of any contract or other
understanding (including any form of contractual, quasi contractual,
restitutionary or promissory estoppel rights, implied obligations or rights based
on similar legal or equitable grounds) whatsoever, or in negligence, as a
consequence of any matter relating or incidental to this RFP, the procurement
of any or all of the Services or a Respondent’s participation in this RFP process,
including instances where:
a. a Respondent is not appointed to the Panel;
b. a Respondent is not invited to participate in any subsequent process as
part of or following completion of this RFP process;
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c. the NHFIC varies, suspends or terminates the RFP process; or
d. the NHFIC exercises or fails to exercise any of its other rights under or in
relation to this RFP.
7.5. Complaints
7.5.1. Any complaints arising out of the RFP process should be directed to the NHFIC
Head of Legal in accordance with the NHFIC’s complaints mechanism.
Respondents should refer to the ‘Complaints Mechanism’ on the NHFIC website
for details of NHFIC’s complaints policy including how to lodge a complaint
(available here: https://www.nhfic.gov.au/media/1125/complaints-mechanism-
public-version.pdf).
8. General matters
9. Evaluation of Tenders
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9.1.3. The NHFIC may at any time exclude a Submission from consideration if the
NHFIC considers that the Submission is incomplete or clearly not competitive.
However, the NHFIC may consider such Submissions and seek clarification in
accordance with paragraph 9.5.
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on the basis that only one of the Submissions may form the basis of any
resultant Participating Lender Deed should that Major Bank Lender be
appointed by the NHFIC to the Panel.
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that has the effect of substantially altering the composition or control of the
Respondent or the business of the Respondent;
d. negotiate with one or more persons who have not lodged Submissions or
enter into an arrangement or other binding relationship for similar services
to the Services outside the RFP process; and
e. discontinue negotiations with any Respondent prior to or after the
commencement of the Panel.
10.2.2. Disclosure to Respondents of any information concerning this RFP process is at
the complete discretion of the NHFIC.
10.5. Debriefing
10.5.1. Respondents may request an oral debriefing following the establishment of the
panel. Respondents requiring a debriefing should contact the Contact Officer.
10.5.2. Respondents will be debriefed against the evaluation criteria set out in this RFP.
A Respondent will not be provided with information concerning other
Submissions, except for publicly available information such as the name of the
successful Respondents or Panellists. No comparisons with other Submissions
will be made.
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SCHEDULE 1 STATEMENT OF REQUIREMENT
1. Overview
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2. Required Services
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• where the loan-to-value ratio is between 80 and 95 per cent;
• where the loan term is no more than 30 years; and
• requiring scheduled repayments of the principal of the loan for
the full period of the agreement except for construction loans
where the terms of the loan agreement may permit interest-
only repayments.
2.1.2. Respondents should review the terms of the draft Participating Lender Deed,
Scheme Rules and Deed of Guarantee for further details on how the Scheme is
to be administered.
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SCHEDULE 2 RESPONSE FORMS
Respondents should ensure that their Submissions include, as a minimum, each of the
Response Forms attached to this Schedule 2.
Respondent
This is the name of the legal entity who will enter into a Participating Lender Deed
with the NHFIC and agree to comply with the Scheme Rules.
Major Bank Lenders should be aware that only one (1) legal entity within a Major
Bank Lender group should lodge a Submission in response to this RFP.
1. Full name of Respondent:
If a company
4. The registered office:
6. The date and place of incorporation and the Australian Company Number:
7. Any related companies within the meaning of section 50 of the Corporations Act
2001 (Cth):
If a trustee
8. Provide details of the relevant trust including a copy of the relevant trust deed
(including any variations to that deed):
If a partnership
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9. Provide details of the relevant partnership including a copy of the relevant
partnership agreement:
11. Please provide details specified in items 1 to 10 above for each Lender Group
Member:
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Part B Respondent’s Deed Poll
Respondents must complete this Respondent's Deed Poll and include it in their Submission
response. Amendments may only be made where necessary to complete the Deed.
DEED POLL
Date: ^insert date^
By: ^insert full legal name of Respondent^ (Respondent)
Context
Request for Proposal in relation to the establishment of a panel of lenders for the provision
of services to administer the First Home Loan Deposit Scheme (RFP).
Interpretation
In this Deed Poll, terms not otherwise defined have the meaning ascribed to them in the
RFP.
Offer
The Submission constitutes an offer (Offer) to provide the Services on the terms and
conditions set out in the Participating Lender Deed, subject to any exceptions noted in its
Statement of Non-Compliance submitted as part of its Submission, and accordingly is
capable of immediate acceptance by the NHFIC so as to form a binding agreement.
The Offer remains open for acceptance by the NHFIC for the Offer Period. The Respondent
undertakes not to withdraw, vary or otherwise compromise the Offer during the Offer
Period.
If directed by the NHFIC, the Respondent will execute the Participating Lender Deed in the
form set out in Schedule 3, subject to any amendments noted in the Respondent’s
Statement of Non-Compliance, without entering into further negotiation.
To the extent that the Submission does not include complete information relating to matters
required for the completion of the Participating Lender Deed, the NHFIC may complete the
Participating Lender Deed at its reasonable discretion, and the Respondent shall execute
the resultant Deed.
Confidentiality
The Respondent will not, and will ensure that its employees, agents or subcontractors do
not, either directly or indirectly record, divulge or communicate to any person any
confidential information concerning the affairs of the NHFIC, the Commonwealth or a third
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party acquired or obtained in the course of preparing a Submission, or any documents, data
or information provided by the NHFIC and which the NHFIC indicates to Respondents is
confidential or which Respondents know or ought reasonably to know is confidential.
Ethical Dealing
The Respondent represents that its Submission has been compiled without the improper
assistance of any current or former NHFIC officer, employee, contractor or agent and
without the use of information obtained unlawfully or in breach of an obligation of
confidentiality to the NHFIC.
The Respondent represents that it has not:
a. engaged in any collusive tendering, misleading or deceptive conduct,
anti-competitive conduct, or any other unlawful or unethical conduct with any other
Respondent, or any other person in connection with the preparation of their
Submission or the RFP process;
b. attempted to solicit information from or influence improperly any current or former
officer, employee, contractor or agent of the NHFIC, or violate any applicable laws
or Commonwealth policies regarding the offering of inducements in connection with
the RFP process; or
c. otherwise acted in an unethical or improper manner or contrary to any law.
Conflict of Interest
The Respondent represents that, having made all reasonable enquiries the following list
represents its only known actual or potential conflicts of interest in respect of the RFP, its
Submission or the provision of the Services:
— ^insert list or, where no conflict exists, write ‘none’^
The Respondent undertakes to advise the NHFIC in writing immediately upon becoming
aware of any actual or potential conflicts of interest in respect of the RFP, its Submission or
the provision of the Services.
Employee entitlements
The Respondent represents that, having made all reasonable enquiries, as at the date of
this Deed Poll, it is not subject to any judicial decisions or any resulting order relating to
employee entitlements (not including decisions under appeal) which claims have not been
paid.
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SIGNED SEALED AND DELIVERED by )
^insert name of Respondent^ by its duly
)
authorised representative:
)
________________________________ ________________________________
^Name of signatory^ Signature)
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Part C Questionnaire
Portfolio data
1. Please provide the following portfolio information:
a. new loans (number and loan amount) originated in the previous 5 financial
years, split by financial year of origination, LVR (<80%, 80-90%, 90-95%) and
geographic region; and
b. for loans issued in the previous 5 financial years:
i. 90+ day delinquency development by quarter, split by financial year of
origination and LVR (<80%, 80-90%, 90-95%);
ii. the percentage of loans that became 90+ day delinquent which were
managed under your Hardship Policy, split by financial year of origination;
iii. 90+ day delinquency cure rate, split by financial year of origination; and
iv. Mortgagee-In-Possessions, split by financial year of origination.
Note to Respondents: for the purposes of question 1.a, geographical split by region based
on your internal postcode groupings is acceptable.
Policy information
2. Please provide a summary of each of the following policy documents with respect to
your current residential mortgage lending activities:
a. Credit Policy, including serviceability criteria, calculation methodology and
information regarding the method of assessing creditworthiness of borrower;
b. Valuation Policy, including minimum valuation standards and valuer
accreditation process;
c. Collections/ Loss Management Policy and information regarding the process
of monitoring the status of loans to identify when there is a significant
likelihood of a borrower defaulting on their obligations under a loan;
d. Hardship Policy (if separate from Collections/ Loss Management Policy);
e. Postcode restriction list loan to value ratio;
f. Delegated Lending Authority levels for high (90%+) LVR loans; and
g. any other customer care policies.
Please also:
h. outline the process and governance arrangements that you employ when
actioning changes to the above policies; and
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i. provide copies of the above policies and any supporting documents.
3. Noting the response provided to question 2 above, would those same policies apply
to Scheme-Backed Loans? If not, please specify the variations that would be
required to existing practices. Please include details on:
a. the changes (if any) that you propose to make to your existing Credit Policy to
accommodate Scheme-Backed Loans;
b. how you intend to classify the Scheme-Backed Loans for the purposes of
applying your Credit Policy (e.g. will you apply the pre-guarantee or
post-guarantee LVR);
c. the borrower segment(s), if any, that will become eligible for mortgage finance
as Scheme-Backed Loans but which do not currently qualify under your
existing Credit Policy.
4. Are any parts of your Credit or Collections/ Loss Management function outsourced?
If yes, please provide details of:
a. the outsourced functions;
b. the service provider(s) used; and
c. the processes that you employ to monitor service provider performance.
5. Please provide the results and recommendations of all internal Quality Assurance
(“QA”) reviews (if any) with respect to your current residential mortgage lending
activities undertaken in the last 24 months, and which outline your compliance with
the policies outlined in question 2 above.
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Pricing information
6. With respect to your mortgage pricing:
a. does your current pricing differ for high LVR mortgages (i.e. >80% LVR)
compared to your other mortgage lending? If yes, please provide details;
b. based on your current funding costs, what interest rate, fees and other
charges (including default interest rates and associated enforcement costs) do
you propose to offer on Scheme-Backed Loans? Please provide a
comparison of how this rate differs from your current rate for
non-Scheme-Backed Loans, including the rationale for any differences;
c. will Scheme-Backed Loans continue to be priced at the same level relative to
non-Scheme-Backed Loans throughout their term? If not, please describe the
circumstances under which Scheme-Backed Loan pricing may change relative
to non-Scheme-Backed Loan pricing; and
d. does your loan pricing distinguish between first home buyers and other home
loans? If so, please outline the differences.
Implementation
7. Please describe the steps that need to be undertaken by your organisation for you to
be able to make Scheme-Backed Loans available to first home buyers by 1 January
2020 (for Major Bank Lenders) or before 1 March 2020 (for Non-Major Bank Lenders
that cannot support a 1 January 2020 start date). This should include an
implementation plan that includes:
a. an implementation strategy, milestones and schedule;
b. the extent of system changes (if any) required and your capacity to deliver
these;
c. the nature and extent of manual workarounds that you will put in place to
support the Scheme; and
d. the level of support and activities you require from the NHFIC in order to make
Scheme-Backed Loans available to first home buyers by 1 January 2020.
Note to Non-Major Bank Lenders: If you cannot support a 1 January 2020 start date, please
advise your readiness to implement before 1 March 2020 and your proposed implementation
date.
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8. Please describe the steps within the loan origination process you propose to adopt to
originate a Scheme-Backed Loan (includes steps for pre-approval, valuation of any
existing property and valuation where the loan includes financing for the construction
of a dwelling, final approval and settlement).
9. Please provide information regarding the loan products that you intend to offer as
Scheme-Backed Loans. This should include:
a. summary of product features;
b. any re-draw or offset features: and
c. any promotions or incentives available to borrowers.
10. Do you intend to undertake any marketing initiatives in conjunction with the launch of
the Scheme? If so, please provide details.
12. How will you confirm borrower eligibility for the Scheme? In particular, please provide
details on how you will:
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a. confirm that a borrower is an eligible first home buyer; and
b. confirm that a borrower will be an owner-occupier of the purchased property.
Note to Respondents: this includes any claims, litigation or threatened litigation and any
investigation or adverse findings.
14. Please detail any steps you will take to minimise the likelihood of claims occurring
under the Scheme. This could include (but is not limited to):
a. effective lending origination practices; and
b. working with clients to cure defaulted loans.
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Part D Statement of Non-Compliance
Respondents lodge their Submissions on the basis that they comply with all requirements
specified in the body of the RFP. In the case of the Schedules to the RFP (including the
description of the Services in Schedule 1 and the Participating Lender Deed and Scheme
Rules in Schedule 3), Respondents’ compliance is subject to any exceptions noted in their
response to this Statement of Non-Compliance in Part D of Schedule 2.
Respondents should indicate the extent to which they partially comply or do not comply with
each paragraph of the description to the Services and each provision of the draft
Participating Lender Deed and Scheme Rules, including all schedules and attachments,
taking into account any amendments to those provisions that may have been issued by the
NHFIC during the RFP process.
Respondents should note that the extent of non-compliance will be a factor in the
evaluation process. The compliance statement will form the basis for any contract
negotiations that may occur with a Respondent.
In respect of the non-compliance statement, Respondents should indicate their level of
non-compliance with any provision using one of the terms: “does not comply”, “partially
complies” and “not applicable”. These terms have the following meanings:
does not comply means that the Respondent will not comply without amendment
partially complies means that the Respondent will comply partially and that some
amendment is required
not applicable means that the provision does not apply to the Respondent or is
to be completed (e.g. the schedule item dealing with fees).
The Respondent will be taken to be and assessed as compliant with any provision,
schedule or attachment which it does not list in the non-compliance statement.
Respondents may group provisions where the response is the same for each of those
provisions. For example ‘Paragraphs 3.1 to 3.15 – Does Not Comply’, or ‘Schedule 1 –
Partially Complies’.
Where a Respondent does not comply or only partially complies with a provision, the extent
of non-compliance should be stated in full in the compliance statement. In this case, the
Respondent should then provide:
a. specific reasons for the partial or non-compliance; and
b. specific language of any proposed amendments, including any deletions or
additional provisions.
In accordance with paragraph 5.2.3, Respondents should also include in their compliance
statement any request that information be treated as confidential following the execution of
a Participating Lender Deed.
The following format should be used in completing the non-compliance statement:
RFP for the establishment of a panel of lenders for the First Home Loan Deposit Scheme (FHLDS) Page 29
Statement of Non-Compliance
Table 2: Provide details of any non-compliances with draft Participating Lender Deed in
Schedule 3 of the RFP. If you fully comply with the draft Participating Lender Deed, simply
write ‘Nil’ in the box below.
Paragraph/schedule/attachment Nature of non-compliance Proposed wording of any
amendment to the provision
Table 3: Provide details of any non-compliances with draft Scheme Rules in Schedule 3 of
the RFP. If you fully comply with the draft Scheme Rules, simply write ‘Nil’ in the box below.
Paragraph/schedule/attachment Nature of non-compliance Proposed wording of any
amendment to the provision
RFP for the establishment of a panel of lenders for the First Home Loan Deposit Scheme (FHLDS) Page 30
SCHEDULE 3 DRAFT PARTICIPATING LENDER DEED AND SCHEME RULES
The draft Participating Lender Deed and Scheme Rules follow after this page.
RFP for the establishment of a panel of lenders for the First Home Loan Deposit Scheme (FHLDS) Page 31
First Home Loan Deposit Scheme
Template Document
What does it do? Provides an overall framework for the approval of each Participating
Lender to a panel of lenders, and for the conduct and performance by
that Participating Lender of activities in connection with, the Scheme
(Scheme Panel Appointment). Each Scheme Panel Appointment is a
bilateral arrangement between NHFIC and a Participating Lender.
What matters does it cover? - Conditions for engagement, standards of conduct, performance and
termination.
- Use of information, general administration and dispute resolution.
What other documents are closely - Deed of Guarantee – provides for a contractual guarantee
related to it? (Guarantee) to be made by NHFIC in favour of Participating Lenders
who have funded eligible loans under the Scheme.
National Housing Finance and Investment Corporation (ABN 22 498 714 570)
[Participating Lender(s)]
[Note – where more than one legal entity from a lender group is approved and appointed as a
Participating Lender, it is intended that each such entity will execute this document. However, if a
lender group so requires, NHFIC may agree to execute individual Participating Lender Deeds with
each entity, provided they are on identical and finalised terms (other than for matters to be set out in
the Appointment Terms which relate to the different identities of those entities).]
Participating Lender Deed
Contents
Details 1
General terms 2
3 Scheme Documents 8
3.1 Scheme Rules 8
3.2 Changes to Appointment Terms 8
3.3 Effect of amendments 9
3.4 Order of precedence 9
7 Undertakings 12
7.1 Lending policies and practices 12
7.2 General undertakings 13
9 Indemnity 15
10 Suspension Events 15
10.1 Suspension Events 15
10.2 Consequences of a Suspension Event 16
12 Termination 17
12.1 Termination by NHFIC 17
12.2 Termination by Lender 17
12.3 Effect of Termination 17
12.4 Transition out arrangements 18
13 Disputes 18
13.1 Negotiation of Disputes 18
13.2 Independent Expert 18
16 Outsourcing 21
18 General 22
18.1 Amendments 22
18.2 Compliance with policies and audit requirements 22
18.3 Compliance with NHFIC Act 23
18.4 Work Health and Safety 23
18.5 No reliance 23
18.6 Waivers and discretions 23
18.7 Conduct of business by NHFIC 24
18.8 Costs 24
18.9 Further assurances 24
18.10 Partial invalidity 24
18.11 Indemnities and reimbursement 24
18.12 Governing law and jurisdiction 24
Schedule Appointment Terms 25
Signing page 26
Telephone [●]
Email [●]@FHLDSnhfic.gov.au
Attention [●]
Address [●]
Telephone [●]
Email [●]
Attention [●]
Date of [●]
document
Appointment Terms means the terms and conditions set out in the Schedule
(“Appointment Terms”) to this document (as supplemented or replaced from time
to time in accordance with clause 3.2 (“Changes to Appointment Terms”)).
Business Day means a day (excluding Saturday and Sunday) on which banks
are generally open in Sydney and (if applicable) each other place specified in the
Appointment Terms.
Finance Law has the meaning given to that term in the PGPA Act.
Force Majeure Event means an event beyond the reasonable control of either
party which makes it impossible or illegal to perform, or prevents compliance with
or the performance of, a party’s obligations under any Scheme Document
(including, without limitation, acts of God, strikes, lockouts, riots, war, acts of a
third-party engaged in subversive or terrorist activities, epidemics, governmental
action, fire, communication line failures, power failures, earthquakes or other
disasters).
(c) it:
(ii) is dissolved,
(f) it is taken (under section 459F(1) of the Corporations Act) to have failed
to comply with a statutory demand;
Media & Publicity Policy has the meaning given in the Appointment Terms.
NHFIC Act means the National Housing Finance and Investment Corporation Act
2018 (Cth).
Nominated Brand means each division name, brand or trading name of the
Participating Lender that used by it in connection with residential mortgage
lending that will represent the Participating Lender in connection with the offer of
Scheme-Backed Loans, as specified in Appointment Terms.
Ongoing Provisions means all of the provisions of this document other than the
Offer Provisions.
PGPA Act means the Public Governance, Performance and Accountability Act
2013 (Cth).
(a) any legislation (to the extent that such legislation applies to NHFIC or the
Participating Lender, or any other recipient of personal information
and/or health information) from time to time in force in any:
Scheme means the Australian Government’s First Home Loan Deposit Scheme,
established by NHFIC in accordance with the NHFIC Act and the NHFIC
Investment Mandate.
Scheme Place Allocation has the meaning given in the Appointment Terms.
Scheme Portal User Manual has the meaning given in the Appointment Terms.
Scheme Rules means the First Home Loan Deposit Scheme – Scheme Rules
published by NHFIC.
Suspension Event has the meaning given in clause 10.1 (“Suspension Events”).
(a) the Work Health and Safety Act 2011 (Cth) and Work Health and Safety
Regulations 2011 (Cth); and
(b) any corresponding WHS law as defined in section 4 of the Work Health
and Safety Act 2011 (Cth).
(f) a “law” includes common law, principles of equity, decree and any
statute or other law made by any parliament (and statutes or other law
made by parliament includes any regulations and other instruments
under it and consolidations, amendments, re-enactments or
replacements of it);
(m) the words “including”, “for example” or “such as” when introducing an
example, do not limit the meaning of the words to which the example
relates to that example or examples of a similar kind;
1.4 Designations
For the purposes of the Scheme Rules, the following designations apply:
[Note – the following clause 1.5 to be inserted if more than one legal entity from
a lender group enters into this document.]
2.2 Duration
This document commences on the Commencement Date and continues in force:
(b) in respect of the Ongoing Provisions, until the Guaranteed Liabilities are
satisfied or extinguished in full.
(b) Each party shall promptly notify the other party in writing upon any new
appointment, replacement or change to the person in the role of
Relationship Manager.
(c) The Relationship Managers will meet (in Sydney or by telephone or other
mutually agreeable means) with each other:
(b) The approval and appointment as a Participating Lender does not mean
that the Participating Lender:
(c) All activities of the Participating Lender in connection with the Scheme
and the Scheme Documents are made by it acting as principal. The
Participating Lender is not acting as agent of NHFIC, the Commonwealth
or any other person in connection with such activities.
3 Scheme Documents
3.1 Scheme Rules
(a) The Participating Lender undertakes and agrees to comply with and
perform all of its obligations under the Scheme Rules.
(b) The Participating Lender acknowledges and accepts that NHFIC may
amend or supplement the Scheme Rules from time to time in
accordance with Rule 11 (“Changes to these Scheme Rules”) of the
Scheme Rules.
(i) NHFIC, in the case of the Media & Publicity Policy, any Scheme
Materials, Scheme Place Allocation and the Scheme Portal User
Manual; and
(b) Any notice given by a party under this clause 3.2 may be signed by the
Relationship Manager or an Authorised Person of that party.
(b) the Scheme Rules (unless a provision includes a statement to the effect
that it is to operate in respect of that matter “despite the Scheme Rules”);
(d) the terms and conditions of this document (other than the Appointment
Terms).
(c) obtaining the consent of Eligible Borrowers and other customers for the
disclosure of personal and other information by it to NHFIC and the
Commonwealth (as required);
(iv) remains liable under the Scheme Documents for the acts or
omissions of any past Representatives as if they were current
Representatives.
and, in each case, which has not been notified by NHFIC to the
Participating Lender, or that the Participating Lender is otherwise aware,
as being withdrawn or out of date (Authorised Information).
(b) NHFIC has not authorised the Participating Lender or any other person
to give any information or make any representation in connection with
the Scheme or the Scheme Documents which is not contained in, or
consistent with, the Authorised Information. However, this does not
prevent the Participating Lender or its Representatives from giving
Eligible Borrowers and other customers any information which is in the
public domain.
(i) must ensure that any written material (including website content
and any names or logos) placed in the public domain for the
purposes of publicising, promoting, explaining or recommending
the Scheme or any Scheme-Backed Loans is:
(ii) other than as permitted under the Media & Publicity Policy, must
not release any external communications and/or marketing
materials relating to the Scheme or matters that are the subject
of the Scheme Documents without first obtaining NHFIC’s prior
written consent (such consent not to be unreasonably withheld).
For the avoidance of doubt, external communications includes
responding to media enquiries.
(c) Materials that are provided by the Participating Lender to NHFIC for
approval pursuant to clause 5.2(b) must allow for at least 5 Business
7 Undertakings
7.1 Lending policies and practices
The Participating Lender must ensure that, when acting in connection with the
Scheme and throughout the process of originating, administering and managing
Scheme-Backed Loans (including its approach to arrears, collections, hardship
and enforcement), the Participating Lender and any third-party administrator
engaged by it:
(a) acts in accordance with the objective of the Scheme as set out the
Scheme Documents and the NHFIC Investment Mandate;
(b) complies with the Scheme Documents and the reasonable directions of
NHFIC made within the scope of the Scheme Documents;
(c) does not offer or provide a loan under the Scheme to a prospective
borrower unless the loan is an Eligible Loan;
(d) takes all reasonable steps to ensure that all Eligibility Criteria are or will
be able to be satisfied prior to making an Application and to collect
supporting documentation demonstrating compliance with those
Eligibility Criteria;
(e) notifies NHFIC promptly upon become aware of, or it has reasonable
grounds to suspect that, an Eligibility Criteria has not been, is not being
or will not be satisfied;
(h) acts in a fair and equitable way and without distorting its normal
distribution of residential mortgage lending, or its approach to origination,
pricing, arrears, collections, hardships, enforcement, beyond the
changes that are necessary to meet the Scheme’s objectives.
(a) to observe, comply with and perform its obligations under, the Scheme
Documents (in its capacity as a Participating Lender) in force from time
to time, and to comply with any undertaking given by NHFIC in
connection with the issue of any Guarantee Certificate;
(b) to maintain and comply with the conditions of all authorisations, licences
and approvals required under all Relevant Laws for it to qualify as a
Participating Lender and to observe, comply with and perform its
obligations under, the Scheme Documents;
(c) to notify NHFIC promptly of any material change affecting any of the
representations, warranties, agreements and indemnities in this
document at any time and take such steps as may be reasonably
requested by NHFIC to remedy the same;
(d) on or immediately after the date on which it issues any press release or
make any public announcement or disclose any other event or
circumstance that is material in the context of the Scheme, to furnish
such information to NHFIC, and if furnished orally confirm such
information in writing;
(i) it has power to enter into and has duly authorised the execution
and delivery of this document and that its obligations hereunder
constitute its legal, valid, binding and enforceable obligations;
(ii) it has the power to perform its obligations under the Scheme
Documents and its obligations thereunder constitute its legal,
valid, binding and enforceable obligations;
(iii) it has taken all necessary actions to authorise its entry into and
performance of this document and to carry out the transactions
contemplated hereunder and under the Scheme Documents;
9 Indemnity
The Participating Lender agrees to indemnify and hold harmless NHFIC from and
against all actions, proceedings, liabilities, claims, charges, damages and Costs
arising because or in connection with:
except to the extent that the Participating Lender shall not be liable under this
clause 9 for any such loss arising from (1) any failure by NHFIC to comply with
Privacy Laws or any fraud or wilful misconduct by NHFIC, or (2) the distribution
by it of Authorised Information (which NHFIC has not otherwise notified the
Participating Lender should not be distributed) containing any misleading or
deceptive (or allegedly misleading or deceptive) statement or omission.
10 Suspension Events
10.1 Suspension Events
It is a Suspension Event if:
(a) upon receipt of a Material Policy Change Report (as required under Rule
5.1(c) (“Information and reporting requirements”) of the Scheme Rules),
NHFIC considers the change to be materially adverse to NHFIC, the
Commonwealth or the interests of the Scheme and NHFIC has notified
the Participating Lender in writing that it is a Suspension Event;
(d) the Participating Lender fails to perform or observe any of its obligations
under Scheme Documents where such failure is material (in the opinion
of NHFIC, acting reasonably) and NHFIC has notified the Participating
Lender in writing that it is a Suspension Event;
(f) either ASIC or APRA has notified NHFIC that in its opinion and having
regard to its statutory objective the Participating Lender’s participation in
the Scheme should be suspended.
(a) the Participating Lender’s rights to apply for a Scheme Place and/or the
issue of any Guarantee Certificates are immediately suspended; and
11 Force Majeure
(a) Neither party is liable to the other if it fails to perform or comply with its
obligations under a Scheme Document to the extent that it is prevented
from performing or complying with such obligation by a Force Majeure
Event.
(i) immediately notify the other party of the reason for, and the
effect of, the failure; and
(ii) use all reasonable efforts to mitigate, avoid and remove the
Force Majeure Event and perform and comply with any affected
obligations as soon as possible.
12 Termination
12.1 Termination by NHFIC
NHFIC may terminate the Offer Provisions:
(a) immediately:
(iii) if:
(a) termination of the Offer Provisions does not, in any away, affect any
accrued rights, titles or interests of either party arising on or before the
date of termination;
(b) any Scheme Places and Guarantee Certificates issued on or prior to the
date of termination continue to be valid after such termination in
accordance with their terms; and
13 Disputes
13.1 Negotiation of Disputes
(a) A party (Initiating Party) claiming that a Dispute has arisen must give
the other party (Recipient Party) a notice setting out brief details of the
Dispute (Dispute Notice). Within 20 Business Days of service of a
Dispute Notice, the Recipient Party must give the Initiating Party a notice
setting out brief details of the Recipient Party’s position on the Dispute
(Reply Notice).
(b) If Dispute and Reply Notices are given, the parties must make
representatives with authority to settle the Dispute available for the
purpose of meeting in an effort to resolve the Dispute. At least one
meeting of the authorised representatives must take place within 5
Business Days of service of a Reply Notice.
(c) If the authorised representatives are unable to resolve the Dispute within
20 Business Days after date of the Reply Notice, the Initiating Party will
be entitled to elect to proceed immediately with resolving the Dispute in
accordance with the remainder of this clause or commence proceedings
regarding the Dispute.
(d) If the Recipient Party does not give a Reply Notice or make its
authorised representatives available for a meeting within the time
periods contained in this clause, the Initiating Party will be entitled to
elect either to proceed immediately with resolving the Dispute in
accordance with the remainder of this clause or commence proceedings
regarding the Dispute.
(b) The Initiating Party and Recipient Party must agree on the appointment
of an Independent Expert. If the parties do not agree on the
(c) Each party shall make such written and/or oral submissions to the
Independent Expert, and shall provide any documents or information, as
the Independent Expert may require to determine the dispute based on
his or her own skill, judgement and experience.
(iii) unless the parties otherwise agree in writing or until the Dispute
is determined by the Independent Expert, the parties are obliged
to fulfil their obligations under the Scheme Documents; and
(a) must be in the form and delivered as required by the Scheme Document;
or
(i) must:
(c) and, in all cases, if they are received after 5.00pm in the place of receipt
or on a non-Business Day, they are taken to be received at 9.00am on
the next Business Day.
(a) information that is publicly available other than through a breach of any
confidentiality obligation owed by that party;
(b) to its officers, employees, agents, contractors, legal and other advisers
and auditors provided the recipient either agrees to act consistently with
this clause or is under professional obligation to keep the information
confidential;
(d) with the consent of the party who provided the information; or
15.3 Privacy
(a) The Participating Lender must comply, and must ensure that its
Representatives, contractors, officers and employees, comply with all
Privacy Laws to the extent that such persons are required to do so by
law.
(b) Without limiting its obligations under clause 15.3(a), the Participating
Lender agrees, and must ensure that its Representatives and
contractors agree (so far as applicable):
(i) not to do any act, or engage in any practice, that would breach a
Privacy Law, or which if done or engaged in by NHFIC, would be
a breach of a Privacy Law;
(iii) to ensure that any person who is required to deal with personal
information and/or health information for the purposes of the
Scheme Documents on its behalf is made aware of the
obligations in this clause 15.3; and
16 Outsourcing
(a) NHFIC may outsource any aspect of the administration of its rights and
obligations under the Scheme Documents to another person (each an
Outsource Provider) by providing written notice to the Participating
Lender.
(b) The Participating Lender agrees that it shall, and shall procure that each
of its Representatives shall, co-operate fully with any Outsource Provider
(to the extent required) in relation to such administration.
(c) NHFIC accepts responsibility for the acts and omissions of each
Outsource Provider appointed by it as though they were NHFIC’s own
acts and omissions, and shall procure that each Outsource Provider
appointed by it complies with the obligations under the Scheme
Documents expressed to be applicable to NHFIC.
(a) without any further action or consent required of the Participating Lender
(with consent deemed to have been provided) where the assignment or
novation is to:
(b) otherwise, only with the Participating Lender’s prior written consent
(which must not be unreasonably withheld or delayed or subject to
unreasonable conditions).
18 General
18.1 Amendments
Without limiting clause 3.2 (“Changes to Appointment Terms”), any term of this
document may only be amended in writing signed by the parties.
(a) will, where applicable, comply with, and ensure that all subcontractors
comply with, their respective obligations under the WHS Legislation
including to, so far as is reasonably practicable, consult, co-operate and
co-ordinate activities with one another and/or any Representatives and
contractors (as the case may be) and any other person who,
concurrently with either party and/or any Representative or contractor
(as the case may be), has a work health and safety duty under the WHS
Legislation in relation to the same matter; and
(b) acknowledges that it has a duty under the applicable WHS Legislation to
ensure, so far as is reasonably practicable, the health and safety of:
18.5 No reliance
The Participating Lender acknowledges and agrees that it has not relied on any
information or any representation from any person in respect of the Scheme
which is not contained in, or consistent with, that as set out in the Scheme
Documents.
(b) NHFIC may exercise a Power or give or refuse its consent, approval or a
waiver in connection with a Scheme Document in its absolute discretion
(including by imposing conditions). A single or partial exercise of any
Power by NHFIC does not prevent a further exercise of that or of any
other Power.
(c) No failure to exercise, nor any delay in exercising, on the part of NHFIC,
any Power under this document or a Scheme Document shall operate as
a waiver of any such Power or constitute an election to affirm any of the
Scheme Documents.
(a) interfere with the right of NHFIC to arrange its affairs in whatever manner
it thinks fit;
18.8 Costs
Any Costs incurred by the Participating Lender in connection with it entering into,
performing and complying with its obligations under the Scheme Documents will
be for the Participating Lender’s own account.
(b) All indemnities and reimbursement obligations (and any other payment
obligations of the Scheme Participant) in a Scheme Document are
continuing and survive termination of the Scheme Document, and
cancellation or termination of the Guarantee Certificates.
(b) The courts having jurisdiction in New South Wales have non-exclusive
jurisdiction to settle any dispute arising out of or in connection with this
document (including a dispute relating to the existence, validity or
termination of a Scheme Document).
EXECUTED as a deed
Authorised Person An officer performing the role of [insert position title or role
(Participating Lender) description] or any other officer nominated by the
Participating Lender and notified to NHFIC in writing.
Media & Publicity Policy [[“Media & Publicity Policy for Participating Lenders”
(Version 1.0)] dated [●] issued by NHFIC.]
Nominated Brands [Specify each division name, brand or trading name of the
Participating Lender that will represent the Participating
Lender in the offer of Scheme-Backed Loans]
Scheme Place Allocation [Note – section 29I of the NHFIC Investment Mandate and
Rule 2.1 of the Scheme Rules establish limits on
allocations of Scheme Places, with the application of any
quotas (individual, global or as a combination of both) for
allocations of Scheme Places a feature to be determined
throughout the Participating Lender procurement process.
The final determination on the application of quotas will be
made by NHFIC (in its absolute discretion).]
Scheme Portal User [“Scheme Portal User Manual” (Version 1.0)] dated [●]
Manual issued by NHFIC.]
Scheme Rules
Who is it issued by? National Housing Finance and Investment Corporation (NHFIC).
What does it do? Establishes certain capacity, participation and eligibility criteria for the
Scheme, and may be updated from time to time for developments in the
Scheme.
What matters does it cover? - Scheme commencement, lender participation and Scheme capacity.
- Eligibility criteria for borrowers, loans and properties.
- Allocations and procedures for Scheme places and the issue of
Guarantee Certificates.
- Ongoing reporting and audit.
What other documents are closely - Participating Lender Deed – provides an overall framework for the
related to it? appointment by NHFIC of each lender (Participating Lender) to, and
for the conduct and performance by that Participating Lender of
activities in connection with, the Scheme.
Why is this template document This template document is provided for the purposes of the Request for
available? Proposal (RFP) released on 28 October 2019 and issued by NHFIC in
connection with the Scheme.
Respondents to the RFP are advised that NHFIC will be responsible for
the finalisation of the Scheme Rules, and this template document is
intended to be used as the basis for informing lenders’ responses to the
RFP.
This document is provided in draft and will be finalised as part of a
document package available to those lenders selected by NHFIC to form
part of the panel arrangement and administer the Scheme.
First Home Loan Deposit Scheme
Scheme Rules
Dated [1 January 2020]
Contents
Contents i
General terms 1
1 Interpretation 1
1.1 Commencement 1
1.2 Definitions 1
1.3 General interpretation 7
2 The Scheme 8
2.1 Scheme limit 8
2.2 Scheme-Backed Loans 8
2.3 The Guarantee 8
3 Eligibility Criteria 8
3.1 Overarching requirement 8
3.2 Eligible Borrowers 8
3.3 Eligible Loans 9
3.4 Eligible Property 10
3.5 Verification Requirements 10
3.6 Non-satisfaction of Eligibility Criteria 10
4 Scheme Places 11
4.1 Lender Designations 11
4.2 Scheme Place allocations 11
4.3 Reserve & Pre-Approval Applications 11
4.4 Guarantee Certificate Applications 12
4.5 General provisions for Applications 13
4.6 Issuance of Guarantee Certificates 13
4.7 Variation, cancellation and re-issue of Guarantee Certificates 13
5 Reporting 14
5.1 Information and reporting requirements 14
5.2 Notice of certain matters 14
5.3 Erroneous information 15
6 Audit 15
6.1 Internal Audits 15
6.2 Spot Checks 16
6.3 General 17
7 Scheme Portal 17
10 Claims Procedures 19
10.1 When Claims may be made 19
10.2 Monthly accounts and remittances for Claims 20
10.3 Payments in respect of valid Claims 21
10.4 Clawback of Claim payments 21
13 General 23
13.1 Governing law and jurisdiction 23
13.2 Compliance with laws 24
Schedule 1 Price Cap Area Identification Schedule 25
Schedule 2 Required Information 27
Schedule 3 Verification Requirements 28
Schedule 4 Regular Reporting Requirements 29
1 Interpretation
1.1 Commencement
These Scheme Rules commence on [1 January 2020].
1.2 Definitions
Unless the contrary intention appears, in this document these terms have the
following meanings:
Australian Credit Licence has the meaning given to that term for the purposes
of the NCCP.
Borrower Couple means 2 people who are each a spouse or de facto partner of
the other and who, together, apply for a Scheme-Backed Loan as the borrowers
of record.
Business Day means a day (excluding Saturday and Sunday) on which banks
are generally open in Sydney.
Eligible Borrower has the meaning given in Rule 3.2 (“Eligible Borrowers”).
Eligible Loan has the meaning given in Rule 3.3 (“Eligible Loans”).
Eligible Property has the meaning given in Rule 3.4 (“Eligible Property”).
Enforcement means:
(b) all amounts available to the Participating Lender for such purposes have
been applied towards payment of amounts owing under the Non-
Performing Loan.
Guarantee means the Deed of Guarantee in respect of the First Home Loan
Deposit Scheme made by NHFIC in favour of Participating Lenders effective from
[1 January 2020].
House and Land Package means a house and land package relating to
Residential Property where the relevant sale and building contracts entered into
by the Eligible Borrower:
(a) are dated no earlier than 1 January 2020 and are entered into before the
Loan Settlement Date; and
Information means all information, regardless of its form (including any form
(whether visible or not) of storage from which the information can be reproduced
and any form in which the information is embodied or encoded), relating to or
developed in connection with the Scheme and the Scheme Documents,
including, in the case of an Eligible Borrower, all information provided in any
Application materials to a Participating Lender and made available to NHFIC at
any time before, on or after the date of these Rules.
Internal Audit has the meaning given in Rule 6.1(a) (“Internal Audits”).
Land and Separate Contract to Build Home means a land and separate
contract to build a home relating to Residential Property where, prior to the Loan
Settlement Date, the Eligible Borrower has:
(a) acquired the relevant land under a contract dated no earlier than
1 January 2020; and
(b) entered into a building contract dated no earlier than 1 January 2020
which requires the builder to commence construction within 26 weeks of
the Loan Settlement Date and complete construction and procure the
issuance of an occupancy certificate within 15 months of the Loan
Settlement Date.
Loan Settlement Date means, for the acquisition of an Eligible Property that is:
(b) a New-Build Dwelling under either a House and Land Package or a Land
and Separate Contract to Build Home, the first date on which funds are
advanced under the loan in connection with that arrangement.
Major Bank means each “major bank” as defined in the NHFIC Investment
Mandate.
Material Policy Change Report has the meaning given in Rule 5.1(b)
(“Information and reporting requirements”).
Minister has the meaning given to that term for the purposes of the NHFIC Act.
NCCP means the National Consumer Credit Protection Act 2009 (Cth), including
the National Credit Code annexed to that Act.
NHFIC Act means the National Housing Finance and Investment Corporation Act
2018 (Cth).
(i) at least 90 days has elapsed since the date an amount was first
due under the terms and conditions of the loan but was unpaid;
and
(ii) the total amount unpaid and in arrears under the loan (including
all fees and any charges due but unpaid as a result of missed
payments) equals at least 90 days’ worth of scheduled
payments under the terms and conditions of the loan; or
(c) takes possession of the mortgaged property securing that loan (whether
by repossession, voluntary repossession or abandonment); or
(a) the contract of sale is dated no earlier than 1 January 2020 and is
entered into before the Loan Settlement Date; and
(b) the Loan Settlement Date will occur within 90 days of the date of a
Guarantee Certificate being issued under the Scheme.
(a) is a credit provider (as defined in the National Credit Code) who is
appropriately licensed under all Relevant Laws to engage in the credit
activity of providing residential mortgage loans in Australia or is exempt
under such Relevant Laws from such licensing requirements;
(c) has entered into a Participating Lender Deed that has not been
terminated.
Periodic Loan Data means the information set out in Part 1 of Schedule 4
(“Regular Reporting Requirements”).
Pre-Approval Application has the meaning given in Rule 4.3(a)(ii) (“Reserve &
Pre-Approval Applications”).
Price Cap Area Identification Schedule means Schedule 1 (“Price Cap Area
Identification”) to these Scheme Rules.
(b) the National Consumer Credit Protection (Fees) Act 2009 (Cth);
(d) any legislation enacted in connection with any of the Acts set out in
paragraphs (a) to (c) of this definition, the NCCP Regulations and any
other regulations made under any of the Acts set out in paragraphs (a) to
(c) of this definition;
(f) any other Commonwealth, State or Territory law that covers conduct
relating to credit activities (whether or not it also covers other conduct),
but only insofar as it covers conduct relating to credit activities.
Reserve Application has the meaning given in Rule 4.3(a)(i) (“Reserve & Pre-
Approval Applications”).
Residential Property has the same meaning as given to the term “residential
property” in the NCCP.
Scheme means the Australian Government’s First Home Loan Deposit Scheme,
established by NHFIC in accordance with the NHFIC Act and the NHFIC
Investment Mandate.
Scheme Portal User Manual means the manual published by NHFIC in relation
to the Scheme Portal.
Specified Rate means, in respect of any overdue amount and for each day that
such amount remains unpaid (inclusive of the day on which it is paid), the
general interest charge rate as determined in accordance with section 8AAD of
the Taxation Administration Act 1953 (Cth) on the first day the amount becomes
overdue (expressed as daily rate).
Spot Check has the meaning given in Rule 6.2(a) (“Spot Checks”).
(b) anything (including an amount) is a reference to the whole and each part
of it;
(e) a “law” includes common law, principles of equity, decree and any
statute or other law made by any parliament (and statutes or other law
made by parliament includes any regulations and other instruments
under it and consolidations, amendments, re-enactments or
replacements of it);
(l) the words “including”, “for example” or “such as” when introducing an
example, do not limit the meaning of the words to which the example
relates to that example or examples of a similar kind;
2 The Scheme
2.1 Scheme limit
The total number of Guarantee Certificates that may be issued by NHFIC in any
Financial Year:
(b) to all Major Banks, shall not exceed 5,000 Guarantee Certificates,
3 Eligibility Criteria
3.1 Overarching requirement
To obtain a benefit under the Guarantee in respect of an Eligible Loan,
Participating Lenders must only offer Eligible Loans to Eligible Borrowers in
respect of the purchase of an Eligible Property.
(ii) for a person who is part of a Borrower Couple, together with the
other borrower,
a deposit of at least 5% and up to (but less than) 20% of the Value of the
Eligible Property being acquired;
(b) be an “eligible loan” for the purposes of section 29C (“Eligible loans”) of
the NHFIC Investment Mandate;
(g) have a Loan Settlement Date that is no earlier than the Commencement
Date for the Participating Lender; and
(h) be subject to, and comply in all respects with, the Relevant Laws and
Lender Policies,
and the Eligible Borrower(s) must be the sole registered owner(s) of that property
as at the relevant property settlement date.
(ii) NHFIC may (in its absolute discretion) deem that, owing to such
non-satisfaction, the loan was not a Scheme-Backed Loan for
any purpose under the Scheme Documents at any time or from
such time as the non-satisfaction arose (as the case may be).
4 Scheme Places
[Note – section 29I of the NHFIC Investment Mandate and Rule 2.1 of these
Rules establish limits on allocations of Scheme Places, with the application of
any quotas (individual, global or as a combination of both) for allocations of
Scheme Places a feature to be determined throughout the Participating Lender
procurement process. The final determination on the application of quotas will be
made by NHFIC (in its absolute discretion), and these Rules (in particular Rules
4.3 and 4.4, the Application and Application Information provisions and the
Verification Requirements) will be conformed accordingly.]
(c) [For global quotas, if applied] [In each Financial Year, all Participating
Lenders of a specified Lender Designation will be entitled to participate
in the issue of up to an aggregate number (generally and without any
other preference amongst them) as follows:]
and, in each case, according to the Scheme Portal there are Scheme
Places available to be utilised by that Participating Lender.
(iii) does not of itself entitle the Participating Lender to any benefit
under the Guarantee nor is it an approval for any registration
under the Guarantee or the issue of a Guarantee Certificate.
(b) Applications that are complete and correct will be considered by NHFIC
upon their submission. Such Applications will generally be approved by
NHFIC upon their submission. However, NHFIC reserves the right to
decline an Application at its discretion.
(b) the account number(s) used by the Participating Lender to identify the
Scheme-Backed Loan;
(d) the title reference and street address of the Eligible Property;
(e) the Value of the Eligible Property as at the Loan Settlement Date; and
(a) may be varied by NHFIC (in its absolute discretion) to correct any
manifest or proven error;
(i) where the Guarantee Certificate has been lost or destroyed, and
NHFIC is satisfied (in its absolute discretion) that the re-issue of
the Guarantee Certificate is necessary to evidence the
registration of the related Scheme-Backed Loan under the
Guarantee; or
(a) for each calendar month, the Periodic Loan Data, within 5 Business
Days of the end of that calendar month in the form required by NHFIC;
(c) for each Financial Half-Year and without limiting Rule 5.1(b), details of
any material changes to the answers previously provided by the
Participating Lender to the Lending Policy Questionnaire, within 10
Business Days after the end of that financial half-year (Material Policy
Change Report);
or (if applicable) details the reasons why it cannot lawfully comply with
such a request, in each case, within 5 Business Days of NHFIC making
such a request.
6 Audit
6.1 Internal Audits
(a) The Participating Lender must:
(i) initially, not later than 6 months after the Loan Settlement Date
of the first Scheme-Backed Loan made by it (or, if NHFIC in its
absolute discretion agrees, at the same time as the initial annual
audit is carried out pursuant to Rule 6.1(a)(ii) (“Annual internal
audit”)); and
(ii) annually, not later than 31 August of each year (unless the
Participating Lender is granted a later deadline by NHFIC),
procure that its internal audit team carries out an audit (an Internal
Audit) of the activities of the Participating Lender under the Scheme.
(A) the Eligibility Criteria were satisfied at the time the loan
was entered into and continue to be complied with; and
(c) The sample of Scheme-Backed Loans for the purpose of each Internal
Audit must:
(i) for the initial Internal Audit, include Scheme-Backed Loans for
which the Loan Settlement Date falls within the first 3 months
after the Loan Settlement Date of the first Scheme-Backed Loan
made by the Participating Lender; and
(ii) for all Internal Audits, represent at least 20% of the total number
of Scheme-Backed Loans made by the Participating Lender
during the previous 12-month period ending on the date of the
Internal Audit.
(d) No later than 10 Business Days after the deadline referred to in Rule
6.1(a), the Participating Lender must submit a written report to NHFIC
describing (in reasonable detail):
(i) the findings of the Internal Audit, the audit process undertaken
and the evidence upon which the findings are based; and
(b) The maximum sample size of the Scheme-Backed Loans audited during
a Spot Check shall be limited to 20% of the total number of Scheme-
Backed Loans made by the Participating Lender.
(c) Each Spot Check shall be undertaken in compliance with all relevant
laws and each party shall bear its own Costs incurred in relation to any
Spot Checks.
(b) If, during the course of a Spot Check, NHFIC determines that:
(ii) the Scheme Documents have not been complied with in any
material respect;
7 Scheme Portal
(a) NHFIC will establish and maintain a Scheme Portal. Access and use of
the Scheme Portal by Participating Lenders will be governed by the
Scheme Portal User Manual.
(b) Unless NHFIC otherwise notifies in writing, all Applications and Claims
must be made on the Scheme Portal.
(c) NHFIC shall make available to the Participating Lender on the Scheme
Portal details of:
(v) the number of Scheme Places that have been allocated for
utilisation by the Participating Lender in a relevant Financial
Year; and
(d) NHFIC may have additional information published on the Scheme Portal,
including but not limited to:
(a) the Participating Lender continues to be the lender of record and any
Guaranteed Liability incurred or expected to be incurred by the assignee
or transferee shall be deemed for the purposes of these Rules and the
Guarantee to be a Guaranteed Liability incurred or expected to be
incurred by the Participating Lender (and not by the assignee or
transferee);
(b) either:
(d) the internal assurance functions of the Participating Lender and NHFIC
have full access to the information and documentation relating to the
Scheme-Backed Loan in order to assess compliance by the Participating
Lender with its obligations under the Scheme Documents in relation to
such Scheme-Backed Loan as if the assignment or transfer had not
been effected.
10 Claims Procedures
10.1 When Claims may be made
Subject to Rule 10.4 (“Clawback of Claim payments”), a valid claim is made by a
Participating Lender in respect of any Guaranteed Liability if:
(b) an Enforcement has occurred and the amount of the Guaranteed Liability
has been determined;
(c) the claim is for an amount that is not greater than the applicable
Guaranteed Maximum Liability; and
(a) each Claim which is being made in respect of that calendar month and
the total amount of such Claims (C); and
The account shall include a calculation of the net amount payable by a party in
respect of such calendar month (N), where:
N = C – CB
If N is:
(i) if, in relation to any Claim, NHFIC is not satisfied that the
requirements of this Rule 10 have been met or are not satisfied
as to the determination of any amounts recovered, they may
notify the Participating Lender of such fact, in which event the
Claim shall be a disputed Claim;
(b) All payments under this Rule 10.3 by one party to the other shall be
made by or on behalf of the paying party to such bank account as the
receiving party shall have notified in writing to the paying party on or
before the Commencement Date relating to the Participating Lender (or,
in the event of a change, notified not less than 5 Business Days before
the date on which the relevant payment is due).
(c) If either party fails to make a payment due by the applicable due date,
such party shall be liable to pay interest to the other party on the
outstanding amount at the Specified Rate for the time being.
(b) pay interest to NHFIC on such amount at the Specified Rate for the time
being from the date of payment by NHFIC of such Claim, in each case
within 20 Business Days of the date of the notification.
NHFIC shall use reasonable endeavours to consult (in such manner as NHFIC
sees fit) with the Participating Lenders before making any such amendment or
supplement, unless NHFIC determines that the proposed amendment or
supplement should be implemented as a matter of urgency or for purposes of
compliance by NHFIC with the requirements of the NHFIC Act and/or the NHFIC
Investment Mandate and it is not practicable for such consultation to take place.
(a) must be in the form and delivered as required by the Scheme Document;
or
(ii) will take effect from the time they are received unless a later
time is specified in them, where:
and, in all cases, if they are received after 5.00pm in the place of
receipt or on a non-Business Day, they are taken to be received
at 9.00am on the next Business Day.
13 General
13.1 Governing law and jurisdiction
(a) These Rules are governed by the laws of New South Wales.
(b) The courts having jurisdiction in New South Wales have non-exclusive
jurisdiction to settle any dispute arising out of or in connection with these
Rules.
The following table sets out each location (identified by postcode) that is included in an
area to which a relevant price cap applies (such caps as provided under section 29F
(“Price cap”) of the NHFIC Investment Mandate). Where a range of postcodes is denoted,
all postcodes (inclusive of those specified) are included by that range.
[Note – postcodes will be included in this Schedule upon finalisation of the NHFIC
Investment Mandate amendments (following the present public consultation and subject
to government approvals).]
[postcodes]
[postcodes]
[postcodes]
[postcodes]
[postcodes]
The following information is to be submitted via the Scheme Portal for each Reserve
Application.
The following information is to be submitted via the Scheme Portal for each Pre-
Approval Application.
The following information is to be submitted via the Scheme Portal for each Guarantee
Certificate Application for a new loan.
The following information is to be submitted via the Scheme Portal for each Guarantee
Certificate Application for a refinancing loan.
The Participating Lender must ensure that the following minimum verification measures
are undertaken to confirm satisfaction of the Eligibility Criteria.
The questions and information comprising the Lender Policy Questionnaire for the
Participating Lender are set out below.
RFP for the establishment of a panel of lenders for the First Home Loan Deposit Scheme (FHLDS) Page 95
First Home Loan Deposit Scheme
Proposed Document
Who enters into this This document is a deed poll made by National Housing Finance and Investment
document? Corporation (NHFIC) in favour of the “Beneficiaries” who are any Participating
Lenders (appointed by NHFIC to the panel of lenders for the Scheme) to whom a
“Guaranteed Liability” is owed from time to time.
Participating Lenders do not enter into or execute this Deed of Guarantee. This
Deed of Guarantee is only executed by NHFIC.
What does it do? Provides the terms upon which NHFIC guarantees Participating Lenders’ liabilities
under the Scheme.
What other documents are - Scheme Rules – establishes certain capacity, participation and eligibility criteria
closely related to it? for the Scheme, and it may be updated from time to time for developments in
the Scheme.
Why is this document This document is provided in connection with the Request for Proposal (RFP)
available? released on 28 October 2019 and issued by NHFIC in connection with the
Scheme. Respondents to the RFP are advised that NHFIC will be responsible for
finalising the drafting of this Deed of Guarantee.
This document is provided to Respondents to inform them of the terms upon which
NHFIC intends to guarantee Participating Lenders under the Scheme, and should
be read by Respondents in conjunction with the Scheme Rules and Participating
Lender Deed to inform lenders’ responses to the RFP. NHFIC intends to only
execute one Deed of Guarantee in favour of all Participating Lenders (i.e. the
terms of the Deed of Guarantee will be the same as it applies to all Participating
Lenders) and this document will not the subject of negotiation with Respondents.
This document is provided in draft and will be finalised by the NHFIC:
- as part of the document package available to those Participating Lenders
selected by NHFIC; and
- following consultations with the Australian Prudential Regulation Authority and
any other relevant government authorities, which may affect the drafting of the
document.
DEED
DEED OF GUARANTEE IN RESPECT OF THE FIRST HOME LOAN DEPOSIT
SCHEME
CONTENTS
1. Interpretation 2
1.1. Definitions 2
1.2. General interpretation 3
1.3. Effective Date 4
2. Guarantee 4
3. Claims 5
7. Preservation of Rights 7
9. Notices 7
Date
This Deed of Guarantee is dated the _________ day of ______________ 2019.
Parties
This Deed of Guarantee (Deed) is made by:
IN FAVOUR OF
Context
This Deed is made in the following context:
A. The Guarantor is responsible for implementing the First Home Loan Deposit
Scheme (Scheme), an Australian Government initiative to assist eligible first
home buyers to access the housing market more quickly.
D. The guarantee provided by the Guarantor under this Deed is subject to the
following terms and conditions.
1.1. Definitions
1.1.1. Unless the contrary intention appears, in this Deed these terms have the
following meanings:
2. Guarantee
2.1.1. Subject to the terms of this Deed, if in respect of a Scheme-Backed Loan:
a. a Payment Default occurs; and
b. there is money owed to the Beneficiary by an Individual Borrower or
Borrower Couple under the terms of the Scheme-Backed Loan following
Enforcement of that Scheme-Backed Loan,
the Guarantor irrevocably guarantees to that Beneficiary the payment of an
amount (being the Guaranteed Liability) equal to the lesser of:
c. the money owed to the Beneficiary by an Individual Borrower or Borrower
Couple under the terms of a Scheme-Backed Loan following Enforcement
of that Scheme-Backed Loan; and
d. the Guaranteed Maximum Liability.
2.1.2. The Guarantor undertakes in favour of the Beneficiaries that the Guarantor
shall, upon receipt of a Beneficiary’s written claim made in accordance with
clause 3, pay to the Beneficiary the Guaranteed Liability.
2.1.3. In determining the amount of any payment to be made in order to satisfy its
obligations under this clause 2, the Guarantor will be entitled to take into
account, set off against, and deduct from, its proposed payment any amounts:
a. already paid by the Guarantor to the relevant Beneficiary in respect of the
particular Guaranteed Liability; and
b. any amounts required to be repaid by the Beneficiary to the Guarantor in
accordance with the Scheme Rules.
3. Claims
3.1.1. A claim by a Beneficiary for payment under this Deed must be in accordance
with the Claims Procedures.
4.1.2. In the event of any conflict or inconsistency between the Register and a
Guarantee Certificate (but absent any manifest or proven error), the Register
prevails.
4.1.3. Subject only to clauses 4.1.2, 4.1.4 and 6, a Beneficiary may rely upon the
issue of a Guarantee Certificate as conclusive evidence that an amount up to
the Guaranteed Maximum Liability described in the Guarantee Certificate is
guaranteed by the Guarantor under and on the terms of this Deed.
4.1.4. A Guarantee Certificate and the relevant record in the Register cannot be varied
or cancelled once issued unless:
a. the relevant Scheme-Backed Loan is the subject of a Permitted Transfer
under the Scheme Rules;
b. the guarantee in respect of the Scheme-Backed Loan is released in
accordance with clause 5.1.2 of this Deed;
c. varied or cancelled in accordance with the Scheme Rules; or
d. the variation or cancellation is otherwise agreed by the Guarantor and the
relevant Participating Lender that has been issued the Guarantee
Certificate.
5.1.3. For the purposes of clause 5.1.2.b, a Guarantee Certificate will not expire and
the guarantee, in respect of a Scheme-Backed Loan, will not be released in
circumstances where the outstanding principal amount under the Scheme-
7. Preservation of Rights
7.1.1. The obligations of the Guarantor under this Deed are continuing obligations
despite any settlement of a claim in respect of a specific Guaranteed Liability.
8.1.2. Subject to clause 8.1.3, this Deed continues until the earlier of:
a. the date of expiry or termination of the Scheme; and
b. the date the Guarantor terminates this Deed by written notice of at least 20
Business Days to the Participating Lenders,
(the Termination Date).
8.1.3. If a Guarantee Certificate is issued before the Termination Date, the guarantee
under this Deed in respect of the Guaranteed Liability relevant to that
Guarantee Certificate will continue to be valid after the Termination Date in
accordance with the terms of this Deed until such time as the relevant
Guaranteed Liability is released in accordance with clause 5.1.2.
9. Notices
9.1.1. Any notice or other communication under this Deed shall be given in
accordance with the Scheme Rules.
Signatures
SIGNED SEALED AND DELIVERED for )
and on behalf of the National Housing )
Finance and Investment Corporation by: )