1. This Contract
1.1 The Contract between Spotcap and the Borrower is made up of the Credit Line Agreement and these General Terms and Conditions (the “T&Cs”).
2. When Spotcap will not lend
2.1 Spotcap will not lend the Borrower any or all of the Credit Line Amount, or approve a Draw Down Request, if:
- 2.1.1. any Guarantee required by Spotcap in support of the Credit Line Facility is not in form or substance satisfactory to Spotcap , acting reasonably;
- 2.1.2. it is not satisfied on reasonable grounds with the results of the Borrower’s credit reference checks;
- 2.1.3. it reasonably forms the view based on information provided by the Borrower, or obtained by Spotcap through its own enquiries, that the Borrower is, or would likely be, unable to repay the Credit Line Facility;
- 2.1.4. it becomes aware prior to any Draw Down Request that there has been a significant adverse change in the Borrower’s financial position; or
- 2.1.5 an Event of Default has occurred under the Contract (see clause 9).
3. Drawing down under the Credit Line Facility
3.1. Subject to the conditions precedent in clause 2 and the terms and conditions specified in the Contract, Spotcap agrees to provide the Credit Line Facility to the Borrower.
3.2. The maximum amount of credit available to the Borrower under the Credit Line Facility is the Credit Line Amount.
3.3. The Borrower may make a request for credit to be advanced under the Credit Line Facility during the Commitment Period by submitting a Draw Down Request. The Borrower owes Spotcap any amount of credit advanced to the Borrower under the Credit Line Facility.
3.4. More than one Draw Down Request can be submitted by the Borrower during the Commitment Period as long as the aggregate Draw Down Amounts that are owing do not exceed the Credit Line Amount.
3.5. A Draw Down Request must be:
- 3.5.1. in the form specified by Spotcap and which can be accessed and submitted by the Borrower by logging into the Borrower’s Client Dashboard; and
- 3.5.2. for an amount which is not less than $500 and which does not, taking into account the aggregate Draw Down Amounts that are owing, exceed the Credit Line Amount.
3.6. The Borrower authorises Spotcap to deduct the Origination Fee from the Draw Down Amount prior to making payment of the Draw Down Disbursement Amount into the account nominated by the Borrower (the “Borrower’s Account”).
3.7. Subject to clauses 2.1 and 3.5, the Draw Down Disbursement Amount will be credited to the Borrower’s Account.
4.1. On or before the date on which a Draw Down Request is accepted by Spotcap, Spotcap will provide the Borrower with a Draw Down Repayment Schedule which sets out the amount of the repayments, the term over which the repayments are to be made (the “Repayment Term”) and the date(s) by which they must be paid by the Borrower in relation to that Draw Down Amount as specified in the Draw Down Repayment Schedule. The Borrower must pay each of those repayment amounts to Spotcap on or by the date(s) set out in the relevant Draw Down Repayment Schedule. The terms of those repayments may be changed by Spotcap without the Borrower’s consent. See clause 14 of these T&Cs for further details.
Payment at the end of the Repayment Term
4.2. At the end of the Repayment Term the Borrower must pay Spotcap the Draw Down Amount Owing in full (if it is not already due and payable).
How Repayments are to be made
4.3. All repayments must be made by direct debit, unless otherwise agreed by Spotcap. The Borrower must sign any documents required by Spotcap to enable repayments to be made directly from the Borrower’s Account by direct debit. Documents may be signed electronically, if Spotcap so agrees.
When Repayments are not made by the due date
4.4. If a Scheduled Repayment is not made by the Borrower on the due date for that repayment, the Borrower agrees to pay to Spotcap the Late Payment Fee.
4.5. Subject to clauses 4.7 and 4.8, the Borrower may make a Partial Early Repayment or Full Early Repayment to Spotcap at any time during the Repayment Term.
4.6. Making a Partial Early Repayment or Full Early Repayment will reduce the amount shown as the Total Repayment Amount in the Credit Line Agreement.
4.7. Before making a Partial Early Repayment or a Full Early Repayment to Spotcap, the Borrower must:
- 4.7.1 contact Spotcap by calling or emailing the Spotcap Customer Service Line (the details of which are set out on the Client Dashboard) at least 2 business days prior to the date on which the Borrower wants to make the early repayment; and
- 4.7.2. confirm the amount of the Partial Early Repayment or Full Early Repayment that the Borrower intends to make to Spotcap.
4.8. The minimum Partial Early Repayment that can be made by the Borrower is an amount which is equal to or greater than 25% of the Draw Down Amount to which the Partial Early Repayment relates.
4.9. When making a Partial Early Repayment or Full Early Repayment in accordance with this clause, Spotcap will charge the Borrower interest for the full month commencing from the due date immediately before the early repayment is made and c_alculated on the basis of the amount outstanding as at the start of that month.
4.10. Where Spotcap receives a Partial Early Repayment from the Borrower, Spotcap will provide the Borrower with an amended Draw Down Repayment Schedule.
Application of Payments
4.11. Payments received by Spotcap under this Contract may be applied to any amount the Borrower owes under this contract in any order determined by Spotcap. For example, if there are Fees owing under the Contract or outstanding enforcement expenses, Spotcap may apply payments to those amounts before any regular repayment.
5.1. The Borrower must pay interest on the principal outstanding under each Draw Down calculated at the Annual Percentage Rate. If the Borrower does not make any Scheduled Repayment by the relevant due date, the Borrower also must pay interest calculated at that rate on the interest and Fees which have been charged and are outstanding on each next due date for a Scheduled Repayment.
5.2. Interest is calculated and accrues on a daily basis and is charged monthly. Spotcap may also charge interest:
- 5.2.1. immediately before the Draw Down Amount Owing is repaid by the Borrower; and
- 5.2.2. immediately before the Total Amount Owing becomes due under clause 9.2.
6.1. The Borrower must pay Spotcap the Fees set out in the Credit Line Agreement. They are payable, and the Borrower must pay them, at the times and in the circumstances specified in the Credit Line Agreement (subject to clause 6.2).
6.2. The Origination Fee is deducted from each Draw Down Amount as described in clause 3.6 above and is capitalised (meaning interest is charged on it). It is repaid as part of the Scheduled Repayments.
6.3. Fees are subject to change without the Borrower’s consent. See clause 14 for further details.
7. Representations and warranties
7.1. The Borrower, and where there is more than one Borrower, each of them, represents and warrants:
- Organisation. That the Borrower, if it is a corporation or other type of legal entity, remains in existence and has the power to own the assets held by it and to carry on business as it is being conducted.
- Legally binding obligation. Each document comprising the Contract constitutes a valid and legally binding obligation and is enforceable against it in accordance with its terms.
- No Breach. The execution, delivery and performance of the Contract and each transaction contemplated by the Contract does not violate or breach any law or result in a breach of any contract, agreement, or instrument to which the Borrower is a party or by which the Borrower or its assets are bound.
- Authorisation. All authorisations required to be obtained by the Borrower in connection with the execution, delivery and performance of this Contract and the transactions contemplated by it have been obtained.
- Taxes. The Borrower has filed all tax returns it was required by law to have filed as at the date of this Contract, 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 Contract, 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 material amount in connection with any taxes, assessments, or charges not provided for on its books.
- Ranking. The Borrower’s payment obligations under the Contract rank and will at all times rank at least pari passu in right and priority of payment with all its present and future unsecured and unsubordinated obligations other than obligations mandatorily preferred by any law applying to companies generally;
- 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.
- No misrepresentation. All information relating to the Borrower provided to it, or on its behalf, to Spotcap in connection with the Contract or the transactions contemplated by it was, at the time it was provided or as at the date upon which it was stated to be true and in all material respects and was not, by omission or otherwise, misleading in any material respect at that time.
7.2. Each representation and warranty given in clause 7.1 above will be repeated on the date of each Draw Down Request and each Draw Down Date, in each case, with reference to the facts and circumstances subsisting at that time.
8. Borrower undertakings
8.1. Information. The Borrower will provide to Spotcap:
- 8.1.1 as soon as reasonably practicable and in any event no later than six (6) months after the end of each financial year, a copy of the annual accounts;
- 8.1.2. quarterly statements, such as BAS statements, no later than 45 (forty-five) days after the end of each quarter; and
- 8.1.3. notice of any loans, financing or debt funding arrangements entered into by the Borrower or on its behalf and which have not been previously disclosed to Spotcap within 3 (three) days from the date on which the relevant loan, debt or financing documentation is executed; and
- 8.1.4. promptly, any further information regarding its financial condition and business operations which Spotcap, acting reasonably, requires from time to time.
8.2. Know your client procedures. The Borrower will promptly provide to Spotcap any documentation and other evidence which is from time to time reasonably required by Spotcap to comply with its know your client procedures.
8.3. Notification of certain events. The Borrower will immediately notify Spotcap in writing if it becomes aware of the occurrence of:
- 8.3.1. (Event of Default) any Event of Default; and
- 8.3.2. (Litigation) any litigation, arbitration, criminal or administrative proceedings which are current, pending or to its knowledge threatened relating to the Borrower or its assets and which could materially impact the Borrower’s ability to fulfil its obligations under this Contract.
9. Events of Default and termination
9.1. Events of Default. Each of the events set out in this clause 9.1 is an “Event of Default”:
- 9.1.1. (Failure to pay) The Borrower does not pay an amount payable by it at or before the due date and in the manner specified in the Contract and the failure to pay has not been remedied within three (3) business days after the due date for payment;
- 9.1.2. (Illegal activities) A statutory or law enforcement authority notifies Spotcap that the Borrower or any Guarantor is involved in an illegal activity;
- 9.1.3. (Material untrue warranty or misrepresentation) Any warranty, representation or statement made or repeated by the Borrower in the Contract is proved to be materially untrue in any respect or misleading in a material respect when made or repeated and which creates a Material Credit Risk to Spotcap, and if the circumstances causing that untrue warranty or misrepresentation are capable of being remedied, those circumstances have not been remedied within thirty (30) days of the occurrence of that untrue statement or misrepresentation;
- 9.1.4. (Failure to provide financial information) The Borrower fails to provide any financial information required to be provided under clause 8.1 of these T&Cs and that default has not been remedied within thirty (30) days of written notice being given by Spotcap to the Borrower to rectify that default;
- 9.1.5. (Insolvency Event) an Insolvency Event occurs in relation to the Borrower; or
- 9.1.6. (Loss of business licence) The Borrower loses a licence or permit that it needs to conduct or operate its business, and which creates a Material Credit Risk to Spotcap, and if that loss of business licence is capable of being remedied, it has not been remedied within thirty (30) days of the date the loss of the business licence occurred.
9.2. Spotcap’s rights on Event of Default If any Event of Default occurs, then during the period that it subsists, Spotcap may by notice to the Borrower do any or all of the following:
- 9.2.1. declare than an Event of Default has occurred; and
- 9.2.2. subject to the requirements of any applicable law, including as to notice, declare that the Credit Line Facility be immediately cancelled and that all amounts owing under the Contract (including amounts accrued but not yet charged) are immediately due for payment; or
- 9.2.3. terminate the Contract.
9.3. Borrower’s ability to terminate. The Borrower may, upon or following repayment of the Total Amount Owing under the Credit Line Facility, provide written notice to Spotcap that it wishes to terminate the Contract. Upon Spotcap being satisfied that the Total Amount Owing has been repaid (including any interest, Fees or charges incurred prior to the date of repayment, but not yet charged}, Spotcap will confirm to the Borrower in writing that the Contract has been terminated.
9.4. Termination prior to Initial Draw Down. The Borrower or Spotcap may terminate the Contract prior to the Initial Draw Down on the Credit Line Facility by providing notice to the other party.
10. Enforcement expenses
10.1. The Borrower must reimburse Spotcap for enforcement expenses which it reasonably incurs in enforcing this Contract or which have been incurred by Spotcap because the Borrower has defaulted on its obligations under the Contract. The Borrower shall, within three Business Days of demand, pay to Spotcap the amount of enforcement expenses specified in that demand.
11. Financial difficulty and restructuring
11.1. In the event that the Borrower is experiencing difficulty in meeting its financial obligations to Spotcap under the Contract, the Borrower should promptly contact Spotcap to discuss any options that may be available.
11.2. In the event that the Borrower fails or is unable to make a Scheduled Repayment within 3 days of the relevant due date, Spotcap may agree a new repayment plan with the Borrower in respect of all or any part of the relevant Draw Down Amount Owing or the Total Amount Owing (a “Restructure Agreement”).
11.3. If the parties agree to enter into a Restructure Agreement, the Borrower must pay the Restructure Fee set out in the Credit Line Agreement.
11.4. The Restructure Agreement will specify the agreed repayments, applicable interest rate and any additional terms which apply to the Borrower under the Restructure Agreement.
12. Notices and change of details
12.1. Any notices required or permitted to be given under the Contract must be given in writing and shall be delivered by e-mail to the last known email address specified in writing to the other party.
Change of details
12.2. If the name, address or contact details of the Borrower change, the Borrower must notify Spotcap as soon as possible. Spotcap may give notices, correspondence or other documents to the Borrower by sending it to the last known address appearing in Spotcap’s records, or by any other method permitted by law.
13. Statements and other information
13.1. The Borrower may access online statements by logging into the Borrower’s Client Dashboard.
13.2. The Borrower may request a copy of:
- 13.2.1. this Contract;
- 13.2.2. a statement which shows the Total Amount Owing; and
- 13.2.3. any notice previously provided to the Borrower and which relates to the exercise of Spotcap’s rights under the Contract.
13.3. If the Borrower makes a request pursuant to clause 13.2 of this document, Spotcap will provide a copy of the relevant document within three (3) business days of that request. If for some reason Spotcap is unable to provide the Borrower with a copy of that document within that timeframe, it will notify the Borrower and provide an expected timeframe for receipt of the document.
14. Changes to the Contract
14.1. Spotcap may change the amount, frequency or time for payment of the Fees and charges (including any government charges), or repayments, or change the Annual Percentage Rate if:
- 14.1.1. its funding costs have changed; or
- 14.1.2. to meet its legal obligations or as the result of any change or anticipated change to a relevant law, regulation or code.
All of these changes can be made without the Borrower’s consent.
14.2. In addition, Spotcap may make any other changes to the Contract if those changes are not adverse to the Borrower.
14.3. Subject to clause 14.4 or any longer time period specified at law, Spotcap will notify the Borrower of changes to the Contract at least 30 (thirty) days before the change takes effect.
14.4. If the change to the Contract has been agreed with the Borrower, the change may take effect on the date agreed as between the parties.
14.5. If Spotcap notifies the Borrower of a change to the terms of the Contract, the Borrower may give Spotcap written notice of the Borrower’s intention to cancel. If the Borrower gives Spotcap that notice within the 30 day notice period referred to in clause 14.3, pays the Total Amount Owing under the Contract and complies with any remaining obligations under the Contract, the Contract will come to an end. In that case, Spotcap will not charge the interest for the full month as described in clause 4.9.
15. Credit verification
16. Joint and several liability
16.1. Where there is more than one Borrower in relation to the loan being made by Spotcap, each Borrower is liable to Spotcap individually for the full amount of the loan, and each of them is jointly liable with each other Borrower.
17. No waiver
17.1. Spotcap may choose at any time to waive any of its rights under the Contract. A waiver by Spotcap is not a change to, and does not reduce its rights, under the Contract.
18.1. Spotcap may assign, novate or otherwise deal with all or part of its rights and obligations under the Contract. This will not affect the Borrower’s rights or obligations under the Contract.
18.2. The Borrower may assign its rights under the Contract with the prior written consent of Spotcap (not to be unreasonably withheld).
19. Validity and enforceability
19.1. If any provision of the Contract is held to be invalid, void or unenforceable in whole or in part, the remainder of the Contract remains valid and enforceable.
20. Electronic execution and counterparts
20.1. The Contract may be executed and delivered electronically and the receiving party may rely on that electronic record as if the original document had been executed and received.
20.2. The Contract may be signed in counterpart and all counterparts taken together constitute the same instrument.
21. What to do if you have a problem or dispute
21.1. If the Borrower wishes to make a complaint, please contact Spotcap on 1800 10 70 10 or via firstname.lastname@example.org. For further details regarding how Spotcap deals with complaints, please refer to our website: www.spotcap.com.au.
22. Governing Law
22.1. The Contract will be construed in accordance with and governed by the laws of the State of New South Wales. The parties submit to the non-exclusive jurisdiction of the Courts of New South Wales.
23. Definitions and interpretation
In this Contract, unless the context otherwise requires:
“Annual Percentage Rate” means the rate set out in the Credit Line Agreement or as specified in a standard price comparison document issued by Spotcap in respect of a Draw Down Amount or varied in accordance with this Contract;
“Average Monthly Payment” means the amount specified as the Average Monthly Payment in the Credit Line Agreement or as specified in a standard price comparison document issued by Spotcap in respect of a Draw Down Amount;
“Borrower” is the person, persons, entity or entities named as the borrower in the Credit Line Agreement;
“Borrower’s Account” means the account nominated by the Borrower.
- “Client Dashboard” means the information and functionality made available to the Borrower on the Spotcap website at www.spotcap.com.au.
- “Contract” comprises the documents set out in clause 1, and any changes made pursuant to clause 14 or by agreement;
“Commitment Period” has the meaning given to it in the Credit Line Agreement;
- “Contingent Fee” means a fee that is contingent on the occurrence of any later event (such as a Late Payment Fee or a Restructure Fee);
- “Credit Line Agreement” means the document titled “Credit Line Agreement” which contains specific details of this Contract.
“Credit Line Amount” means the amount specified in the Credit Line Agreement;
“Credit Line Expiration Date” means the date specified in the Credit Line Agreement;
- “Credit Line Facility” means the line of credit facility provided to the Borrower as described in the Credit Line Agreement;
- “Draw Down” means a draw down under the Credit Line Facility;
- “Draw Down Amount” means an amount of credit which is the subject of a Draw Down Request;
- “Draw Down Amount Owing” means the amount owing by the Borrower to Spotcap in respect of the relevant draw down (including any accrued interest, Fees, charges or other amounts charged or accrued under this Contract and unpaid);
- “Draw Down Date” means the date on which Spotcap pays the Draw Down Disbursement Amount to the Borrower pursuant to the relevant Draw Down Request.
“Draw Down Disbursement Amount” has the meaning given to it in the Credit Line Agreement;
- “Draw Down Repayment Schedule” means the document issued by Spotcap to the Borrower in accordance with clause 4.1.
- “Draw Down Request” means a request made by the Borrower to draw down on the Credit Line Facility in the form specified by Spotcap;
“Event of Default” means any one of the events specified or referred to in clause 9.1;
“Fees” means the Origination Fee, Other Fees or any Contingent Fees.
- “Full Early Repayment” means the payment to the Spotcap of the Draw Down Amount Owing before the end of the applicable Repayment Term;
- “Guarantee” means the guarantee & indemnity provided by the Guarantor(s) in support of the Credit Line Facility;
- “Guarantor” means the person named in the Guarantee as the Guarantor and if there is more than one person named in the Guarantee, each such person;
- “Initial Draw Down” means the first Draw Down Request which is approved for funding by Spotcap in accordance with the terms of the Contract;
“Insolvency Event” means:
- A. the insolvency or bankruptcy of the Borrower;
- B. the appointment of a receiver, trustee or custodian, for all or any part of the assets of the Borrower;
- C. the commencement of any proceeding by the Borrower under any reorganisation, 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 the relevant proceeding was commenced; or
- D. the failure of the Borrower to pay its debts as they become due, concealment, removal or transfer any part of the assets of the Borrower, with intent to hinder, delay or defraud its creditors, or any transfer of any of the assets of the Borrower which may be fraudulent under any bankruptcy, fraudulent conveyance or similar law.
- “Interest Expense” means the interest charges payable by the Borrower as set out in the Credit Line Agreement or as specified in a standard price comparison document issued by Spotcap in respect of a Draw Down Amount.
- “Late Payment Fee” means the fee specified as the Late Payment Fee in the Credit Line Agreement or as notified to the Borrower by Spotcap;
- “Material Credit Risk” means that Spotcap, acting reasonably, has the view that because of the event it is unlikely to be able to recover all amounts from the Borrower that a Borrower owes it.
“Maximum Repayment Term” has the meaning given to it in the Credit Line Agreement.
- “Origination Fee” means the fee specified as the OriginationFee in the Credit Line Agreement or as notified to the Borrower by Spotcap;
- “Other Fees” means a fee that will be charged by Spotcap to the Borrower under the Contract that is not an Interest Expense, Origination Fee or Contingent Fee;
- “Partial Early Repayment” means the payment to the Spotcap of an amount which is not yet due or payable under the Contract that is not a Full Early Repayment;
“Repayment Term” has the meaning set out in clause 4.1 of these T&Cs;
“Restructure Agreement” has the meaning given to it in clause 11.2 of these T&Cs;
- “Restructure Fee” means the fee specified as the Restructure Fee in the Credit Line Agreement or as notified to the Borrower by Spotcap;
“Scheduled Repayment” is a repayment specified in a Draw Down Repayment Schedule;
- “T&Cs” means these General Terms and Conditions and any changes made pursuant to clause 14 or by agreement;
- “Total Amount Owing” means the Unpaid Daily Balance plus any accrued interest, Fees, charges or other amounts which Spotcap is entitled to charge but have not yet been charged under this Contract;
- “Total Cost of Credit” means the amount specified as the Total Cost of Credit in the Credit Line Agreement or as specified in a standard price comparison document issued by Spotcap in respect of a Draw Down Amount;
- “Total Interest Percentage” means the Interest Expense expressed as a percentage of the relevant Draw Down Amount;
- “Total Repayment Amount” means the amount specified as the Total Repayment Amount in the Credit Line Agreement or as specified in a standard price comparison document issued by Spotcap in respect of a Draw Down Amount;
- “Unpaid Daily Balance” is the difference between all amounts paid by the Borrower and all amounts charged under this Contract;
23.2. In this Contract:
- 23.2.1. For the purposes of making payments, a day ends at 5.00pm.
- 23.2.2 All references to $ are to Australian dollars.
- 23.2.3. Words or phrases which are derived from words or phrases which are defined have a similar meaning to the defined term. The singular includes the plural, and vice versa.
- 23.2.4. “Including ” is not a word of limitation.