These Terms and Conditions (the “T&C”) will apply to the Credit Line Agreement (the “Agreement”) entered into by the Borrower with Spotcap New Zealand Limited, Level 1, 1 Anzac Avenue, Auckland, New Zealand 1010, NZBN: 9429042550273 (“Spotcap”)
1. Loan approval
If and when Spotcap approves the borrower’s application, the payment of the loan amount is subject to:
- Spotcap ensuring that the information provided was not inaccurate or deficient in any respect (if Spotcap discovers that it was, then the Agreement will be void and where appropriate may be reported to credit reference and fraud or any other regulatory agencies).
- Spotcap checking the Borrower’s credit reference and the information provided to assess the affordability of the credit line.
2. Commitment limit
The initial commitment limit will be set out in the Agreement. The Borrower may borrow up to the commitment limit and Spotcap may refuse to allow the Borrower to borrow more, even if Spotcap have previously allowed the Borrower to borrow more. If the commitment limit is exceeded for any reason, Spotcap can request the Borrower to repay on demand the amount that exceeds the commitment limit.
Each Drawdown within the commitment meaning shall be in the amount exceeding $500.
3. Payment mechanism
Payment of all amounts drawn by the Borrower under this 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
In case of prepayment on a date other than due date of the instalment referred to in Clause 7 of the Agreement, Spotcap shall be entitled to charge the Borrower interest referred to in Clause 5 of the Agreement for the entire 30-day period during which the prepayment occurs.
From time to time, Spotcap may introduce special offers or promotions. These will be subject to separate terms and conditions which Spotcap will publish at the time.
The Borrower shall have the right to terminate the Agreement unilaterally, subject to a 3 (three) business days’ prior written notice thereof to Spotcap, subject to repayment of the entire principal amount outstanding under this Agreement (the “Credit Line Amount”) to Spotcap, and subject to payment of the Interest and other payments due to Spotcap under the Agreement.
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 case of any material adverse change in the business, operations, properties, prospects, assets or condition of the Borrower or any event has occurred or circumstances exist that may result in such material adverse change (the “Material Adverse Change”), for example:
- any warranty, representation or statement proves to be untrue or misleading in a material respect when made;
- the Borrower fails to comply with any of its obligations under this Agreement and the failure to comply is not remedied within seven (7) days after the date due;
- insolvency or bankruptcy of the Borrower, appointment of a receiver, administrator, 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;
- if the Borrower is a body corporate, the dissolution, termination of existence of the Borrower, temporary or permanent suspension of its business;
- if the Borrower is an individual or a partnership, death of the Borrower or any partner of the Borrower, withdrawal of any partner of the Borrower, or temporary suspension of the Borrower’s business;
- failure 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;
- significant decrease in the Borrower’s credit score; or
- any other event that in a reasonable judgment of Spotcap does amount to material adverse change.
In case of termination of this Agreement by Spotcap pursuant to Clause 7 of these T&C, Spotcap shall not be precluded from seeking indemnity for damages actually suffered, if such damages exceed the amounts referred to in Clause 8 of these T&C.
Spotcap maintains full discretion to terminate any undrawn facility without any notice. This discretion will be exercised reasonably.
8. Late Repayment Fees
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, the interest rate referred to in Clause 5 of the Agreement shall automatically be increased by one percent (1%) per month, and all outstanding obligations, including unpaid interest, shall continue to accrue interest from date of such default at such interest rate applicable to such obligations until such default is cured or waived („Default Interest Rate“).
The Borrower will pay to Spotcap, without proof of damages actually suffered, a fixed processing fee in the amount of $50 for each direct debit which was rejected without fault of Spotcap.
If the Borrower fails to comply with its obligation referred to in Clauses 5-7 of the Agreement and such failure is not remedied within 3 (three) days, all payments made by the Borrower under this Agreement may be applied by Spotcap in the following order:
- towards the Late Repayment Fees, as specified in this Clause 8, then
- towards the payment of Interest, then
- towards the payment of charges other than Interest (if any), then
- towards the payment of the principal amount.
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 this Agreement and continue so long as the Borrower is indebted to Spotcap under this Agreement and until payment in full of the all amounts outstanding under this Agreement.
- 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 the laws of the jurisdiction of its organization, and has the lawful power to own its properties and to engage in the business it conducts.
- 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.
- 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.
- Taxes. Except as otherwise permitted by the Agreement, the Borrower has filed all tax returns it was required by law to have filed prior to 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.
- 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.
- 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
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:
- annual accounts within six months, or such other period as reasonably required by Spotcap, of the close of each financial year;
- quarterly statements and annual statement not later than 45 (forty-five) days after the end of each quarter.
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.
11. Limitation of liability
In no event shall Spotcap be liable to the borrower for any lost profits or special, exemplary, consequential or punitive damages, even if informed of the possibility of such damages.
Spotcap shall be entitled, without notice to the Borrower and without any further consent from the Borrower, to assign, novate or otherwise deal with, all or part of its rights and obligations under this Agreement to any third party. The Borrower consents to the assumption of liabilities under this Agreement by any person to whom Spotcap assigns, novates or otherwise deals with any of its obligations under this Agreement, and the release of obligations under this Agreement of Spotcap. The Borrower agrees to do or execute anything reasonably requested by Spotcap to effect a novation, assignment or other dealing under this Clause 14.
The Borrower shall not be entitled to assign rights and obligations under this Agreement without the prior written consent of Spotcap.
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
This Agreement will pass to the benefit of and be 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.
The clauses and paragraphs contained in the Agreement are intended to be read and construed independently of each other. 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 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
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.
The Lender shall have the right to amend the T&C at any time. Any amendments and modifications shall be notified to the Borrower and shall apply to all Draw Downs requested after the date of the notification.
18. Governing Law
The Agreement will be construed in accordance with and governed by the laws of New Zealand.