These Terms and Conditions (the “T&C”) will apply to the Credit Line Agreement (the “Agreement”) entered into by the Borrower with Spotcap Australia Pty Ltd.,Level 6, 53 Berry St, North Sydney NSW 2060, ABN: 71602957237 (“Spotcap”)
1. Loan approval
1.1. If and when Spotcap approves the Borrower’s application and payment of the loan amount is subject to:
- 1.1.1. Spotcap satisfying itself that the information provided was not inaccurate or deficient in any respect (if Spotcap discovers was any inaccuracy or deficiency, then the Agreement will be void and, where appropriate, a report may be made to credit reference and fraud agencies).
- 1.1.2. Spotcap checking the Borrower’s credit reference and the information provided to assess the affordability of the credit line.
2. Commitment limit
2.1. The initial Credit Line Commitment Limit is set out in the Agreement. The Borrower may borrow funds up to the Credit Line Commitment Limit and Spotcap may refuse to allow the Borrower to borrow more, even if Spotcap has previously allowed the Borrower to borrow more. If the Credit Line Commitment Limit is exceeded for any reason, Spotcap can request the Borrower to repay on demand the amount that exceeds the Credit Line Commitment Limit.
2.2. Each Draw Down within the commitment meaning shall be in the amount exceeding $500.
3. Payment mechanism
3.1. Payment of all amounts drawn by the Borrower under the Agreement shall be deemed to have been made to the Borrower on the business day of the transfer from the Spotcap account irrespective of the date on which the payment may have been received by the Borrower.
4. Credit verification
5.1. In case of prepayment on a date prior to the due date of the instalment referred to in Clause 7 of the Agreement, Spotcap is entitled to charge the Borrower interest referred to in Clause 5 of the Agreement for the entire period between two consecutive instalments during which the prepayment occurs.
6.1. From time to time, Spotcap may introduce special offers or promotions. These will be subject to separate terms and conditions published at the time.
7.1. The Borrower shall have the right to terminate the Agreement unilaterally, subject to:
7.1.1. giving Spotcap 3 (three) business days’ prior written notice thereof; and
7.1.2. repayment of the entire principal amount outstanding under the Agreement (the “Credit Line Amount”) to Spotcap; and
7.1.3. payment of the Interest and other payments due to Spotcap under the Agreement.
7.2. Spotcap shall have the right to terminate the Agreement unilaterally and with an immediate effect and declare the principal amount and interest under this Agreement owing at that time to be immediately due and payable in the following cases:
- 7.2.1. any warranty, representation or statement made by the Borrower to Spotcap proves to be untrue or misleading in a material respect when made;
- 7.2.2. the Borrower fails to comply with any of its obligations under the Agreement and the failure to comply is not remedied within seven (7) days after the date due;
- 7.2.3. insolvency or bankruptcy of the Borrower, appointment of a receiver, trustee or custodian, for all or any part of the property of the Borrower, or the commencement of any proceeding by the Borrower under any reorganization, bankruptcy, insolvency, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, now or in the future in effect, which is not cured by dismissal thereof within fourteen (14) days after the date commenced;
- 7.2.4. if the Borrower is an incorporated entity, the dissolution, termination of existence of the Borrower, temporary or permanent suspension of its business;
- 7.2.5. if the Borrower is an individual, the death or bankrupcy of the Borrower or any partner of the Borrower, withdrawal of any partner of the Borrower, or temporary suspension of the Borrower’s business;
- 7.2.6. if the Borrower is a partnership, the death or bankruptcy of any partner, the withdrawal of any partner from the partnership or temporary suspension of the Borrower’s business;
- 7.2.7. by the Borrower to pay its debts as they become due, concealment, removal or transfer any part of the property of the Borrower, with intent to hinder, delay or defraud its creditors, or any transfer of any of the property of the Borrower which may be fraudulent under any bankruptcy, fraudulent conveyance or similar law.
7.3. In case of termination of the Agreement by Spotcap pursuant to this Clause 7, Spotcap shall not be precluded from seeking indemnity for damages actually suffered, if such damages exceed the amounts referred to in this Clause 7. A right to seek indemnity for damages does not apply to any damages arising out of circumstances beyond the reasonable control of the Borrower. For the avoidance of any doubt, it applies in case of gross negligence and wilful misconduct of the Borrower.
7.4. Spotcap maintains full discretion to terminate any undrawn facility without any notice.
This discretion will be exercised reasonably.
8. Late Fees
8.1. The Borrower will pay to Spotcap, without proof of damages actually suffered, a fixed processing fee in the amount of $50.00 (in case of monthly repayments), $30.00 (in case of biweekly repayments) or $15.00 (in case of weekly repayments) for each direct debit which was rejected without fault of Spotcap. This is a reasonable pre-estimation of the costs Spotcap expects to incur (including, but not limited to, bank charges/fees and administration expenses incurred by Spotcap).
8.2. If the Borrower fails to comply with its obligation referred to in Clauses 5 to 7 of the Agreement (“Default“), provided that such Default is not cured within 3 (three) days and so long as any such Default remains uncured (“Uncured Default”), all payments made by the Borrower under the Agreement may be applied by Spotcap in the following order:
- 8.2.1. towards the Late Repayment Fees, then
- 8.2.2. towards the payment of Interest, then
- 8.2.3. towards the payment of charges other than Interest (if any), then
- 8.2.4. towards the payment of the principal amount.
8.3. In case of an Uncured Default, Spotcap may agree with the Borrower for an additional payment plan of all outstanding amounts under the Agreement (a “Restructure Agreement”). Under such Restructure Agreement, the Borrower will be required to pay a one-time set-up fee in the amount of up to 2% of all the outstanding amounts and in any case in the minimum amount of $100.00. The contractual interest remains calculated as outlined to the associated repayment schedule.
8.4. If Spotcap is unsuccessful in its internal recovery process, Spotcap will hire an external debt collection agency and/or law firm. Additionally, the extrajudicial collection charges of 15%-20% of the outstanding debt, the full costs of legal advice and judicial charges as well pre- and post-judgement interest charges are applicable and will charged to the Borrower.
9. Borrower’s Representations
9.1. To induce Spotcap to make the Credit Line available to the Borrower, the Borrower makes the below representations to Spotcap, which representations shall survive the execution of the Agreement and continue so long as the Borrower is indebted to Spotcap under the Agreement and until payment in full of the all amounts outstanding under the Agreement.
- 9.1.1. Organization. The Borrower, if it is a Legal Entity, as well as each Legal Entity comprising the Borrower, is duly organized, validly existing and in good standing under all applicable laws, and has the lawful power to own its properties and to engage in the business it conducts.
- 9.1.2. No Breach. The execution and performance of the Agreement will not immediately, or with the passage of time or upon its termination, or both (i) violate any law or result in a default under any contract, agreement, or instrument to which the Borrower is a party or by which the Borrower or its property is bound; or (ii) result in the creation or imposition of any security interest in, or lien or encumbrance on, any of the assets of the Borrower.
- 9.1.3. Authorization. The Borrower has the power and authority to incur and perform the Obligations, and, if the Borrower is a Legal Entity, the Borrower has taken all corporate, partnership, or other action necessary to authorize the execution of the Agreement.
- 9.1.4. Taxes. Except as otherwise permitted by the Agreement, the Borrower has filed all tax returns it was required by law to have filed as at the date of the Agreement, has paid or caused to be paid all taxes, assessments, and other governmental charges that were due and payable prior to the date of the Agreement, and has made adequate provision for the payment of such taxes, assessments, or other charges accruing but not yet payable, and the Borrower has no knowledge of any deficiency or additional assessment in a materially important amount in connection with any taxes, assessments, or charges not provided for on its books.
- 9.1.5. Compliance with Law. Except to the extent that the failure to comply would not materially interfere with the conduct of the business of the Borrower, the Borrower has complied with all applicable laws in respect of: (1) restrictions, specifications, or other requirements pertaining to products that the Borrower sells or to the services it performs; (2) the conduct of its business; and (3) the use, maintenance, and operation of its properties.
- 9.1.6. Statements and Omissions. No representation by the Borrower contained in the Agreement or in any certificate or other document furnished by the Borrower pursuant to the Agreement contains any untrue statement of material fact or omits to state a material fact necessary to make such representation or warranty or was misleading in light of the circumstances under which it was made.
10. Other Borrower’s Obligations
10.1. The Borrower shall deliver to Spotcap, upon each request, in form and detail satisfactory to Spotcap and in such number of copies as Spotcap may request:
- 10.1.1. annual accounts within six months, or such other period as reasonably required by Spotcap, of the close of each financial year;
- 10.1.2. quarterly statements and annual statement not later than 45 (forty-five) days after the end of each quarter.
10.2. The Borrower shall notify to Spotcap any circumstances which could negatively impact Borrower’s assets and financial situation and which could materially impact Borrower’s ability to fulfil obligations under this Agreement. In particular, the Borrower shall notify Spotcap of any commencement of any proceeding by the Borrower under any reorganization, bankruptcy, insolvency, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction as well as of any circumstances that potentially may give rise to such commencement.
10.3. The Borrower shall notify to Spotcap any new additional loans and other debt funding within 3 (three) days from the day in which such new debt funding was obtained.
10.4. For the avoidance of any doubt, if the Borrower fails to comply with its obligations under Clause 10.2 or 10.3 and the failure to comply is not remedied within seven (7) days after the date due, Spotcap may terminate the Agreement in accordance with Clause 7.
11. Limitation of liability
11.1. Spotcap is not liable to the Borrower for any lost profits or special, exemplary, consequential or punitive damages, or interest charges whatsoever, even if Spotcap was informed of the possibility of such damages.
12.1. Spotcap shall be entitled, without prior notice to the Borrower and without Borrower’s consent, to assign, novate or otherwise deal all or part of its rights and obligations under this Agreement to any third party. Such assignment in any case will not be detrimental to the Borrower.
12.2. The Borrower shall not be entitled to assign rights and obligations under this Agreement without the prior written consent of the Spotcap.
13.1. Any notices required or permitted to be given hereunder shall be given in writing and shall be delivered by E-mail to addresses specified in writing to the other party.
14. Binding Effect
14.1. The obligations under the Agreement are binding upon the representative heirs, executors, administrators, successors and permitted assigns of the Borrower and Spotcap. The Borrower waives presentment for payment, notice of payment, protest and notice of protest.
15.1. The clauses and paragraphs contained in these T&C and the Agreement are intended to be read and construed independently of each other.
15.2. If any term, covenant, condition or provision of the Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, it is the parties’ intent that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable. Alternatively, if such provision cannot reasonably be reduced in scope, then that provision is severed from the Agreement and the remainder of the provisions of the Agreement will in no way be affected, impaired or invalidated as a result.
16. Electronic Signature Clause
16.1. The Agreement may be executed and delivered by facsimile or other electronic signature by any of the parties to any other party and the receiving party may rely on the receipt of such document so executed and delivered by facsimile or other electronic means as if the original had been received.
17.1. Spotcap shall have the right to amend these T&C at any time and the Borrower shall have a right to choose to be bound by a previous version of the T&C. Any amendments and modifications shall be notified to the Borrower with a 30 days’ notice period and shall apply to all Draw Downs under the Credit Line Agreement.
18. Governing Law
18.1. The Agreement and these T&C will be construed in accordance with and governed by the law of the State of New South Wales.