General Terms and Conditions

These Terms and Conditions apply to GetCapital & businessloans.com.au

GetCapital Pty Ltd ( ACN 149 390 625) trading as GetCapital

ACN 601 158 507 Pty Ltd trading as businessloans.com.au

  1. INTEREST
    1. Interest accrues daily on the Outstanding Balance and is calculated daily on the Outstanding Balance of the Account at the end of each day. The interest rate that is applied at the end of each day to make the calculation is equal to the Annual Percentage Rate (then applicable) divided by 365.
    2. Subject to clause 2 below, accrued interest charges will be debited to the Account each time that you make a payment under this Agreement. Accrued Interest will only be debited to the Account to the extent that there will be sufficient funds from the payment to pay the accrued interest charges that will be debited to the Account at the relevant time. Alternatively, accrued interest charges may be debited at the end of each week and on the day that each Scheduled Repayment is due to be paid by you, or at such longer intervals or interval as we may decide in our absolute discretion.
    3. Where provided for in the Schedule, we may make changes to the Annual Percentage Rate, from time to time, by giving you not less than seven days' notice of the change. The notice of a change to the Annual Percentage Rate may be given by us in the manner set out in clause 10. The change will take effect from and including the notified date for the change and may result in us notifying you of a change to the Scheduled Repayment Amount.
  2. DEFAULT INTEREST
    1. If you fail to pay the Scheduled Repayment Amount on the Scheduled Repayment Date, then default interest will be payable, in addition to interest. The default interest is calculated daily on the Outstanding Balance at the end of each day. The Default Interest Rate that is applied at the end of each day to make the calculation is the Default Interest Rate divided by 365.
    2. The default interest will continue to accrue at the Default Interest Rate until you have paid all of the Scheduled Repayment Amounts that have become due and payable.
    3. The default interest will be debited to the Account immediately before all of the Outstanding Balance has been paid in full. We may, in our sole discretion, elect not to debit the accrued default interest to the Account or seek its recovery.
  3. REPAYMENTS
    1. You are to make repayment in accordance with the requirements set out in the Schedule.
    2. Where we hold a direct debit authority from you, our Direct Debit Agent will debit your bank account on or following each Scheduled Repayment Date for the Scheduled Repayment Amount(s).
    3. All other payments required to be made by you under this Agreement will, unless otherwise expressly provided, be payable on demand on any Business Day at a place and in a manner reasonably required by us.
    4. You may repay the whole of the Outstanding Balance at any time, without fee or penalty, by requesting a payout figure from us.
  4. SECURITY
    1. Charge
      1. Each Grantor grants a charge over and a Security Interest in its Collateral to us to secure payment of the Secured Money. The Security Interest granted is a transfer by way of security over Collateral consisting of “accounts” and “chattel paper” (each defined in the PPSA) and a charge over all other Collateral. If for any reason it is necessary to determine the nature of this charge over property, it is a floating charge over Revolving Assets and a fixed charge over all other Collateral.
      2. Each Grantor grants to us a charge over the property or properties of the relevant Grantor described at:
        1. Item Specific Security and Item Borrower Security in the Schedule where the Grantor is the Borrower;
        2. Item Guarantor Security in the Schedule where the Grantor is a Guarantor,
        to secure payment of the Secured Money.
    2. Mandatory requirement

      If a law requires that something must be done before a Grantor may validly grant a Security Interest over any of the Collateral, to the extent required, the Security only takes effect in relation to that Collateral when the thing required is done

    3. Priority

      The Grantor acknowledges that:

      1. the Security is intended to take priority over all other Security Interests over the Collateral except for any Permitted Security Interests and those Security Interests which are mandatorily required by any applicable law to have priority; and
      2. nothing in this Agreement is intended as an agreement by us to subordinate the Security to any other Security Interest in the Collateral.
    4. Security continues

      Any dealing with any Collateral on the terms permitted in this Agreement will not release or extinguish the Security unless the dealing is the absolute transfer of all of the Grantor’s right, title and interest in the relevant Collateral.

      If the Grantor disposes of or otherwise deals or agrees to deal with the Collateral in breach of this Agreement or the Security, the Grantor acknowledges that we have not:

      1. authorised any disposal or dealing or agreement to deal; or
      2. agreed that any disposal or dealing or agreement to deal will extinguish the Security; and
      3. the Security continues in the Collateral despite the disposal or dealing or agreement to deal.
    5. Personal Property Securities Act 2009 (Cth)
      1. The Grantor acknowledges that this Agreement constitutes a security agreement for the purposes of the PPSA and establishes a Security Interest in the charged property for the purposes of the PPSA which will be registrable on the PPSR.
      2. To the extent permitted by the PPSA, the Grantor:
        1. contracts out of the provisions of the PPSA which, under section 115(1) and section 157 of the PPSA, it is permitted to contract out of;
        2. waives its right to receive from us each notice or document which it is permitted to waive under section 144 of the PPSA; and
        3. waives its right to receive anything from us under section 175 of the PPSA and agrees not to make any request of another lender under that section.
    6. Nothing in this clause affects the right of us to receive a notice, documents or amount which we are entitled to receive under another provision of this Agreement or any other agreement to which we are a party.
    7. Consent to Security

      The Grantor consents to us taking such Security as we deem reasonably appropriate, in the form of property and assets of the Grantor including the Security at any time during the Facility Term and until the Secured Money is paid in full, to guarantee payment of the Secured Money, any default charges, and any other amount payable under this Agreement.

    8. Further action
      1. The Grantor agrees to, whenever requested by us to do so, execute all documents and do all such further acts and things as may be reasonably required by us to:
        1. enable registration of the Security Interest granted to us under this Agreement on the PPSR, the Victorian land registry and/or any other register as we require; and
        2. enforce our rights under any documents referred to in clause 4.8(a)(i) above.
    9. The Grantor may do any of the following in the ordinary course of that Grantor’s ordinary business unless it is prohibited from doing so by another provision of this Agreement or a Security:
      1. create or allow any interest in, or dispose or part with possession of, any property or undertaking which is a Revolving Asset; and
      2. withdraw or transfer money from an account with a bank or other financial institution.
  5. GUARANTEE AND INDEMNITY
    1. Guarantee and Indemnity
      1. In consideration of us entering into this Agreement with the Borrower, the Guarantor:
        1. irrevocably guarantees to us that the Borrower will perform all of the Borrower's obligations under this Agreement;
        2. must, if the Borrower defaults in the payment of money under this Agreement, immediately on demand pay the outstanding amount to us; and
        3. indemnifies us against all Claims (including legal costs on a full indemnity basis) incurred by us as a result of:
          1. any information produced or approved by the Borrower under or in connection with this Agreement or the transactions it contemplates being or being alleged to be misleading or deceptive in any respect;
          2. the transactions contemplated or financed under this Agreement; or
          3. a failure by the Borrower or any Guarantor to pay any amount due under this Agreement on its due date (except where paid in accordance with this Agreement).
      2. For the avoidance of doubt, and only for that purpose, the Guarantor confirms that in guaranteeing to us that the Borrower will perform all of the Borrower's obligations under this Agreement, the Guarantor confirms that such guaranteed obligations will include all obligations that will arise under or in consequence of any advance or advances made up to the limit of the facility or loan amount.
    2. Guarantor's Acknowledgement

      The Guarantor acknowledges that:

      1. this Guarantee and Indemnity is a continuing one which will not be affected by part payment or part performances by the Borrower or termination of this Agreement; and
      2. the Guarantor’s liability to us will not be affected by:
        1. the Borrower:
          1. entering into any composition or scheme or deed of arrangement with creditors; or
          2. entering into liquidation or being deregistered, dissolved or wound-up or having a receiver or receiver and manager appointed to it.
        2. us, for any reason, not exercising all or any one or more of its rights or powers:
          1. against the Borrower; or
          2. in respect of any Security or surety against which we may be able to satisfy any liability of the Borrower.
        3. us compounding, compromising, releasing, abandoning, waiving, varying, relinquishing or renewing any of our rights against the Borrower or waiving or varying or amending any other provision of this Agreement (even if the liability of the Guarantor is thereby increased);
        4. any other circumstances or thing which but for this clause might determine or impair the operation of this Guarantee and Indemnity; or
        5. any variation or change to this Agreement made in accordance with clause 13.2 of these General Terms and Condition (including a variation which increases or re-advances, or extends or curtails the duration of, the guaranteed money), subject to the matters set out in clause 5.1(b).
    3. Insolvency of Borrower

      If the Borrower is Insolvent:

      1. we may retain all money received from the Borrower and allow the Guarantor a reduction in the Guarantor’s liability under this Guarantee and Indemnity only to the extent of the amount received;
      2. the Guarantor may not and must not seek to recover any money from the Borrower so as to reimburse the Guarantor for payments made to us under this Guarantee and Indemnity until we have been paid and/or compensated in full; and
      3. the Guarantor must pay to us all money received from the Borrower which we have refunded in connection with any negotiations or proceedings relating to the Borrower's Insolvency.
    4. Separate Indemnity

      If any of the obligations of the Borrower under this Agreement are unenforceable or invalid, then this clause 5.4 and clauses 5.1 to 5.3 inclusive are to operate as a separate indemnity, with the result that:

      1. any Guarantor indemnifies us against all Claims (including legal costs on a full indemnity basis), whatsoever arising from our inability to enforce performance of or the invalidity of those obligations; and
      2. any Guarantor must on demand pay to us the aggregate of the monetary quantification of all such Claims (including legal costs on a full indemnity basis) arising out of such inability to enforce performance of or the invalidity of such obligations.
    5. Charge and Consent to Register a Caveat Upon Event of Default

      Unless otherwise stated in this Agreement, and without limiting the generality of the foregoing, each Guarantor that is a Grantor hereby agrees and consent to us registering a caveat over any real property owned by the Guarantor to recognise our interest in such property including following the occurrence of an Event of Default.

    6. Multiple Guarantors

      If there is more than one Guarantor, then this Guarantee binds each of them jointly and severally and they are liable jointly and severally for all obligations.

  6. EVENT OF DEFAULT
    1. Each of the following events or circumstances is an Event of Default:
      1. you have failed to pay us the Scheduled Repayment Amount on the Scheduled Repayment Date and the default has not been remedied within 7 days of notice of the default from us;
      2. you and/or any Guarantor fails or neglects to pay on the due date for payment any other part of the Secured Money and the default has not been remedied within 14 days of notice of the default from us;
      3. you and/or any Guarantor fails or neglects to observe or perform any of the covenants, conditions or warranties contained in this Agreement (other than those outlined in clauses 6.1(a) and (b)) or the Security, with material effect to the ability to make repayments or our ability to take enforcement action and, if that default is capable of remedy, it has not remedied within 30 days of notice of default from us;
      4. you and/or any Guarantor:
        1. assigns his, her or its estate for the benefit of creditors;
        2. is presented with a petition for bankruptcy or sequestration of his/her respective estates;
        3. convenes a meeting, or proposes, to enter into any arrangement or composition for the benefit of his, her or its creditors;
        4. has a trustee in bankruptcy appointed over any of his, her or its property;
        5. becomes bankrupt or enters into a composition, assignment or arrangement with creditors;
        6. is Insolvent; or
        7. any corporate action, legal proceedings or any other procedure or step is taken in relation to enforcement of any Security Interest over any assets of you and your subsidiaries.
      5. subject to clause 4.9, you and/or any Guarantor mortgage or otherwise encumber or sell or dispose of or attempt or contract to sell or dispose of any land or property mortgaged or charged in favour of us and forming part of any Security without the previous consent in writing of us (which may not be unreasonably withheld). We will make such determination with regard only to your ability to repay the Secured Money; or
      6. you and/or any Guarantor have made a materially incorrect or misleading representation, warranty or statement to us in relation to your ability to make repayments or our ability to take enforcement action and, if that default is capable of remedy, it has not remedied within 30 days of notice of default from us.
  7. RIGHTS UPON DEFAULT
    1. At any time on or after the occurrence of an Event of Default, we may:
      1. demand and require immediate repayment of the whole of the Secured Money without the need for us to give you any prior notice (other than any prior notice required by law);
      2. exercise any powers, rights or privileges conferred by law, this Agreement, the Security and/or any other collateral document or securities, including registration of the Security and, where applicable, we may choose to sell the Security and you shall have no recourse against us on any basis, including on price realised;
      3. perform any one or more of your and/or any Guarantor's obligations under this Agreement or under the Security;
      4. apply any moneys received by us in exercising our rights under this Agreement or for any other reason in and towards full or partial payment of any outstanding Secured Money;
      5. where the default relates to non-payment of a payment obligation under this Agreement, charge the Default Interest Rate on the Outstanding Balance for each day until the default is remedied and Additional Costs may be payable;
      6. reject any and all requests for further funds/advances; and/or
      7. immediately terminate this Agreement.
    2. We may exercise our rights under this clause notwithstanding any delay in the exercise of such right and, to the extent permitted by law, without liability for loss.
    3. Any restriction or requirements for notice and/or the effluxion of time relating to the exercise of our rights which is stipulated or required by any statute is hereby negated in so far as is lawful. However, we must give 14 days’ notice should we require possession of freehold or leasehold property.
  8. COSTS AND EXPENSES
    1. You will, upon our demand, pay to us or as directed by us all costs, expenses and other amounts payable which are reasonably incurred or paid by us in respect of this Agreement and/or the Security. These costs shall include:
      1. legal costs on a solicitor own client basis;
      2. direct third party costs resulting from or on account of any default by you and/or the Guarantor or any Event of Default;
      3. the costs of us registering or causing to be registered any Security (or a copy thereof) with such government body or registrar as we reasonably require;
      4. properly incurred costs resulting from the exercise or purported or attempted exercise of any of our rights or powers under this Agreement and/or the Security; and
      5. any stamp duty, loan duty or other duty or financial impost including duties and taxes on receipts or payments and any fines or penalties arising directly or indirectly in respect of the Security or any transaction contemplated thereby.
  9. BORROWER'S COVENANTS AND WARRANTIES
    1. You warrant and represent to us as follows:
      1. you have power to enter into and observe your obligations under this Agreement and each and every Security to which you are a party;
      2. you have in full force and effect all the authorisations necessary to enter into this Agreement and each and every Security to which you are a party, observe your obligations under them and to allow them to be enforced;
      3. your obligations under this Agreement and each and every Security to which you are a party are valid and binding and are enforceable against you in accordance with their terms;
      4. this Agreement and each and every Security to which you are a party and the transactions under them do not contravene your constituent documents or any law, regulations or official directive or any of your obligations or undertakings to which any of your assets are bound or cause a limitation on your powers or the powers of your directors (if a corporation) to be exceeded;
      5. no Event of Default or event which with the giving of notice, the lapse of time or the fulfilment of any condition would be likely to become an Event of Default, continues unremedied;
      6. the Financial Information is accurate and fairly represents your financial state at the date of this Agreement knowing that we have relied on it in granting the Facility;
      7. the Financial Information has been prepared in conformity with generally accepted accounting principles applied on a basis consistent with that of preceding financial years, and that since its date there has been no material change in your financial condition or operations;
      8. you have no undisclosed debts or contingent obligations;
      9. there are no material, unrealised or anticipated losses from any of your present commitments;
      10. you will advise us of material adverse changes which occur at any time prior to the end of the Facility Term;
      11. no litigation, arbitration proceedings, governmental proceedings, event or action are pending or threatened against you which would, if adversely determined, adversely affect your financial condition or of any Subsidiary and/or jeopardise your obligations under this Agreement;
      12. you and your directors are of the belief that you are of sound financial position at the date of entering into this Agreement, and are of the belief that you will meet your obligations under this Agreement.
      13. none of your assets are subject to any lien, except:
        1. for current taxes not yet paid or taxes being contested in good faith and by appropriate proceedings; and
        2. those in favour of us;
      14. you have filed all tax returns, if any, which are required to be filed, and have paid all taxes which have become due;
      15. you will use all funds advanced under this Facility for business or investment purposes only; and
      16. this Facility is provided pursuant to an arrangement to which the Consumer Credit Legislation does not apply.
    2. Each Grantor must comply in all material respects with all laws to which it may be subject, if failure to comply would materially impair its ability to perform its obligations under this Agreement or materially adversely affect the Security.
    3. You may not incur or allow to remain outstanding any financial indebtedness other than financial indebtedness comprising any trade credit extended by your suppliers or financial indebtedness previously disclosed to us and/or subsequently approved by us in writing (which may not be unreasonably withheld).
  10. NOTICES
    1. Any notice, consent or demand given in relation to this Agreement may be delivered to you or a Guarantor personally by being:
      1. posted to the address specified in the Schedule for the relevant Party;
      2. sent by email to that Party's email address as set out in this Agreement or notified in writing to each Party from time to time,
      3. and shall be deemed to have been sent:

      4. in the case of posting, on the fifth Business Day after posting; and
      5. the case of email, when the system from which it was sent indicates that it has been successfully transmitted or sent.
    2. Any notice, consent or demand given by us may be given or made in writing signed by an officer or solicitor for us and such writing may in addition to the methods of service contained in this clause.
  11. TRUST PROVISIONS
    1. Where you and/or any Guarantor have executed this Agreement in the capacity as trustee of a Trust whether or not the fact that you and/or Guarantor are a trustee is disclosed to us, you and/or Guarantor acknowledge that this Agreement is binding on you and/or Guarantor personally and in the capacity as a trustee of a Trust and our right of recourse extends to both the assets of you and/or Guarantor personally and the assets of the Trust.
    2. If you and/or any Guarantor enters this Agreement as trustee of any Trust or you and/or Guarantor are granting security over any Collateral which is held upon Trust or subject to any Trusts the following covenants will have effect (whether or not we have notice of the Trust or Trusts):
      1. you and/or any Guarantor covenants and agrees with us that:
        1. you and/or any Guarantor shall be personally liable for the performance of all covenants in this Agreement;
        2. you and/or any Guarantor have full, complete and valid authority pursuant to the Trust to enter into this Agreement;
        3. you and/or any Guarantor have full, complete and valid authority pursuant to the Trust to grant security over all Trust Assets to which the Security extends;
        4. you and/or any Guarantor are entering into this Agreement and the transactions evidenced hereby as part of the due and proper administration of the Trust and for the benefit of all of the beneficiaries or unit holders of the Trust;
        5. no beneficiary or unit holder is presently entitled to any of the Trust Assets;
      2. where applicable the Facility will be utilised for the purposes and in accordance with the provisions of the Trust;
      3. notwithstanding anything contained in this Agreement, you and/or any Guarantor have a right of indemnity against the Trust Assets or the beneficiaries or unit holders of the Trust and that such rights of indemnity have not been and will not be excluded or limited by the provisions of the Trust or by any breach of Trust or otherwise and that it will not release or otherwise prejudice such rights of indemnity;
      4. you and/or any Guarantor have not and will not commit any breach of the terms and conditions of the Trust;
      5. you and/or any Guarantor further covenant and agree with us that none of the following powers shall be exercised by you and/or any Guarantor or any other person in relation to the Trust unless we are given written notice of the Trust and on each occasion give our prior written consent (which may not be unreasonably withheld) to such exercise:
        1. any power to alter, amend, vary or revoke the terms of the Trust;
        2. any power to alter or vary the trustee or trustees of the Trust whether by resignation, removal appointment or otherwise;
        3. any power to advance or distribute capital to beneficiaries or unit holder of the Trust;
        4. any power to make distributions in specie of any Trust Assets;
        5. any power to permit beneficiaries or unit holders of the Trust to use any Trust Assets;
        6. any power to re-settle, set aside or transfer to any other person any Trust Assets;
        7. any power to determine the vesting date under the provisions of the Trust;
        8. any power to add any beneficiaries or unit holders or class of beneficiaries or class of unit holders to the Trust;
      6. you and/or any Guarantor further covenants and agrees with us that you and/or any Guarantor will not without our prior written consent (which may not be unreasonably withheld):
        1. otherwise than in the ordinary course of business:
          1. blend or mix any Trust Assets;
          2. comprise any claim in relation to any Trust Assets;
          3. incur any debt;
          4. dispose of any property;
          5. delegate any of the powers conferred on you and/or any Guarantor under the provisions of the Trust;
          6. create or cause to arise any encumbrance in respect to any Trust Assets;
          7. cause or accept any increase in the remuneration payable to any trustee under the provisions of the Trust;
      7. In this clause, unless the context otherwise requires, each reference to “you and/or Guarantor” or “you and/or any Guarantor” shall be construed as including a reference to any substituted or additional trustee of the Trust appointed with the prior written consent of us.
  12. INDEMNITY
    1. You indemnify us and shall keep us indemnified from and against any expense, loss, damage or liability which we may suffer or incur as a consequence of the occurrence of any Event of Default or otherwise in enforcing any provision of, or our rights or interests in, this Agreement and the Security.
    2. This indemnity is a continuing obligation, separate and independent from your other obligations and survives termination of this Agreement. It is not necessary for us to incur expenses or make payment before enforcing a right of indemnity conferred by this Agreement.
    3. Nothing in clauses 12.1 and 12.2 requires you to indemnify us for any actions, proceedings, loss, claims, damages, costs, and expenses that are incurred by us arising from the fraud, negligence, or wilful misconduct of us, our officers, employees, contractors or agents, or any receivers appointed by us over the Collateral.
  13. GENERAL
    1. Assignment and novation
      1. You and/or any Guarantor cannot assign any of your rights or transfer any of your obligations under this Agreement or the Security.
      2. We may assign any of our rights or transfer any of our rights under this Agreement without your consent.
      3. You consent to us novating our obligations under this Agreement to a third person without the need for any further consent from you.
    2. Changes to the Agreement's terms without your consent

      Acting reasonably, and to the extent reasonably necessary to protect our legitimate business interests, we may vary any of the terms of this Agreement in accordance with any of paragraphs 13.2(a) to (d) below, including as separately provided for in this Agreement;

      1. where specifically provided for in the Schedule, we may vary the Annual Percentage Rate by giving you not less than 7 days' prior notice of the change;
      2. we may change an existing fee, whether by increasing the fee or reducing the fee, and where we increase the fee, we will give you not less than 30 days' notice of the change and will only make the change where the increase in the fee is necessary to cover an increase in our expected ongoing cost of providing credit to you (for example because of a new duty or a regulatory change);
      3. we may introduce a new fee to become payable by you under this Agreements, where the increase in the fee is necessary to cover a change in our expected ongoing cost of providing credit to you (for example because of a new duty or a regulatory change) and we will give you not less than [30] days' notice of the change; and
      4. we may make other changes to this Agreement that we reasonably consider will not be adverse to you, and will give you no less than 30 days' notice of the change.
    3. No waiver

      Notwithstanding any provision contained in this Agreement or any rule of law or equity to the contrary, the granting of any time or any other indulgence by us to you and/or any Guarantor in relation to any existing or future default under this Agreement or any Security will not be deemed a sanction or waiver of any continuing or recurring breach nor will our right to exercise our rights under this Agreement or the Security at any subsequent time be effected or diminished by the grant of time or any other indulgence.

    4. No set-off

      Except to the extent that a Party has a right of set-off granted by an applicable law and which cannot be excluded by agreement, the Party (including any Guarantor) must pay all amounts owing under this Loan Agreement without set-off, deduction or counterclaim.

    5. Governing law and jurisdiction
      1. This Agreement is governed by the laws applicable in the State of New South Wales, Australia.
      2. Each Party submits to the non-exclusive jurisdiction of the courts of the State of New South Wales, Australia.
    6. Collateral agreement
      1. The parties agree:
        1. this Agreement is the primary document for stamp duty purposes;
        2. the Secured Money owing under this Agreement is secured by the Security.
      2. To the extent that there is an inconsistency between this Agreement and the Security the provisions of this Agreement will prevail.
    7. Severability

      If any provision or paragraph of this Agreement is found or determined to be void, invalid, illegal or unenforceable for any reason, it shall be excluded or (where it is permissible to do so) read down in a manner that will avoid the provision being void, invalid, illegal or otherwise unenforceable.

    8. Commissions

      You acknowledge that we may pay a commission, fee or other remuneration to any adviser, broker, agent or other person in relation to this Agreement.

    9. Special Conditions

      The special conditions (if any) contained in Item Special Conditions of the Schedule form part of this Agreement.

    10. Privacy

      We will use, collect, disclose and manage all personal information in accordance with the requirements of the Privacy Act 1988 (Cth), and in accordance with our Collection Statement and Privacy Policy.

    11. Terms and Conditions

      By executing this Agreement, you acknowledge that you have previously agreed to our website Terms and Conditions set out on our website, www.shift.com.au. These terms and conditions include a specific consent for us to use the www.bankstatements.com.au secure token to refresh bank statement reports for the purposes of monitoring your business performance.

    12. Electronic execution

      This Agreement is executed by each Director in their capacity as your Director and Guarantor of the obligations by the use of electronic acknowledgement. In agreeing to this electronic execution, then:

      1. you agree that we may rely on the electronic execution as having the same force and effect as handwritten signature(s); and
      2. you unconditionally consent to any method used by us (at our discretion) to identify the Director and/or Guarantor and to confirm their intention to enter into a binding legal agreement.
  14. DEFINITIONS

    In this Agreement, unless the context otherwise requires:

    1. Account means the account that we maintain to record the amount of the Secured Money owing to us by you under this Agreement from time to time.
    2. Additional Costs means the additional costs relating to the issuance of a Demand Letter being $45 and in respect of a failed direct debit being $25.
    3. AML/CTF Laws means the Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth), the Anti-Money Laundering and Counter Terrorism Financing Rules Instrument 2007 (No.1), and any other related legislation or regulations.
    4. Annual Percentage Rate means the annual percentage rate that is applicable from time to time, and at the commencement of this Agreement is the rate specified as such in the Schedule.
    5. Borrower means each borrower named in the Schedule as the Borrower.
    6. Business Day means a day on which banks are open for general banking business in New South Wales.
    7. Claims includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a Party to this Agreement.
    8. Collateral means all the Grantor’s present and after-acquired property, including real property. It includes:
      1. anything in respect of which the Grantor has at any time a sufficient right, interest or power to grant a Security Interest in the Security; and
      2. if the Grantor is also entering into this Agreement in its capacity as trustee of a Trust, the Trust Property of that Trust.
    9. Consumer Credit Legislation means the National Consumer Credit Protection Act 2009 (Cth) and the National Credit Code as set out in Schedule 1 to that Act.
    10. Control Event means:
      1. in respect of any property or undertaking that is (or would have been) a Revolving Asset, an event where:
        1. the relevant Grantor breaches, or attempts to breach any restriction in this Agreement on the disposal or granting of any further Security Interest in respect of that property or undertaking or takes any step which would result in it doing so:
        2. a person takes a step (including signing a notice or direction) which may result in Taxes, or an amount owing to an authority, ranking ahead of the Security Interest in the property or undertaking under this Agreement;
        3. distress is levied or a judgment, order or Security Interest in the Security is enforced or becomes enforceable over the property or undertaking;
        4. we give a notice to the relevant Grantor that the property or undertaking is not a Revolving Asset. (However, we may only give a notice if we reasonably consider that it is necessary to do so to protect our rights under this Agreement or if an Event of Default is continuing); or
      2. in respect of all property or undertaking that is or would have been Revolving Assets, the relevant Grantor becomes Insolvent.
    11. Default Interest Rate means the interest rate percentage specified as such in the Schedule.
    12. Direct Debit Agent means the party appointed by us to direct debit funds from your nominated bank account on or around the Scheduled Repayment Dates.
    13. Event of Default means any of the events of default described in clause 6 of this Agreement.
    14. Financial Information means all information relating to the financial affairs of you as required by us, including your bank statements, credit card processing statements, credit card statements, tax returns, information supplied regarding your sales volumes, credit card sales volume, seasonality, average item selling price, information pertaining to existing debts and security arrangements including leases and hire purchase arrangements and any financial statements requested such as balance sheet, income and retained
    15. Grantor means:
      1. you; and
      2. if the Item Guarantor Security of the Schedule provides that clause 4.1 applies to a Guarantor, each Guarantor listed in that Item Guarantor Security.
    16. Guarantor means the person or persons specified in Item Guarantor of the Schedule.
    17. Insolvent means:
      1. if a corporation:
        1. it is, or is presumed or deemed to be unable or admits inability to pay its debts as they fall due;
        2. without limiting paragraph (i), it is a trustee of a Trust and is unable to pay all debts of that Trust as and when they become due and payable out of its own assets (where it is obliged to do so) and the assets of that Trust;
        3. it suspends making payments on any of its debts;
        4. by reason of actual or anticipated financial difficulties, it commences negotiations with one or more of its creditors (excluding us in our capacity as such) with a view to rescheduling any of its indebtedness;
        5. any corporate action, legal proceedings or other procedure or step is taken in relation to it for:
          1. the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise), except an application made to a court for the purpose of winding up which is disputed by it acting diligently and in good faith and dismissed within 14 Business Days;
          2. a composition, compromise, assignment or arrangement with any of its creditors;
          3. the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager, Controller (as defined in the Corporations Act 2001 (Cth)) or other similar officer in respect of it or any of its assets except an application made to a court for the purpose of appointing such a person which is disputed by it acting diligently and in good faith and dismissed within 14 Business Days; or
        6. it is ‘deregistered’ as that term is defined in the Corporations Act 2001 (Cth);
        7. any expropriation, attachment, sequestration, distress or execution affects any asset or assets of the corporation; or
        8. anything analogous or having a substantially similar effect to any of the events described above happens in connection with that corporation under the law of any applicable jurisdiction; or
      2. if a natural person:
        1. the person authorises a registered trustee or solicitor to call a meeting of their creditors or proposes or enters into a deed of assignment or deed of arrangement or a composition with any of their creditors;
        2. a person holding a Security Interest in assets of the person enters into possession of or takes control of any of those assets or takes any steps to enter into possession of or take control of any of those assets;
        3. the person commits an act of bankruptcy, dies or becomes or is declared to be, mentally or physically incapable of managing his or her own affairs; or
        4. anything analogous or having a substantially similar effect to any of the events described above happens in connection with that person under the law of any applicable jurisdiction.
    18. Outstanding Balance means the unpaid balance of the Secured Money that is recorded in the Account from time to time as then owing by you to us under this Agreement, and for a day under this Agreement means the amount of that unpaid balance at the end of that day.
    19. Outstanding Principal Amount means the aggregate of all principal amounts drawn under this Agreement less all payments made by you that are attributable to the repayment of principal.
    20. Party means a party to this Agreement who has executed this Agreement and any other person that becomes a party to this Agreement from time to time.
    21. person includes a company or other incorporated body.
    22. Permitted Security Interest means, in respect of a Grantor:
      1. any Security Interest in existence at the date of this Agreement and which has been registered on the PPSR; and
      2. any Security Interest over any of that Grantor’s assets to which we have expressly consented in writing.
    23. PPSA means the Personal Property Securities Act 2009 (Cth).
    24. PPSR has the meaning given to the term “register” in the Personal Property Securities Act 2009 (Cth).
    25. Personal Information has the meaning set out in the Privacy Act 1988 (Cth), as amended from time to time.
    26. Revolving Asset means any property or undertaking:
      1. which is:
        1. inventory;
        2. a negotiable instrument;
        3. machinery, plant, or equipment which is not inventory and has a value of less than A$1,000 or its equivalent;
        4. money (including money withdrawn or transferred from an account with a bank or other financial institution); and
      2. in relation to which no Control Event has occurred.
    27. Schedule means the document entitled 'Key details of your facility' which sets out some of the details of this Agreement, including the name of each Borrower and the facility limit, and some of the applicable terms and conditions.
    28. Security means the security described in the Schedule and any additional security provided in accordance with clause 4.
    29. Security Interest means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement, notice or arrangement having a similar effect, including any "security interest" as defined in sections 12(1) or (2) of the PPSA.
    30. Secured Money means:
      1. all moneys now or hereafter owing or payable to us by you under this Agreement including the sum of the Scheduled Repayment Amounts, Additional Costs, and all such money arising from:
        1. default interest incurred in accordance with clause 2;
        2. interest on any judgment entered by us against you, and/or the Guarantor in respect of the Secured Money;
        3. all costs, expenses or losses incurred or sustained by us in relation to any failure by you and/or the Guarantor to comply with the terms of the Security; and
        4. all advances, further advances, loans, credits or financial accommodation under this Agreement whether made, created or given on or before the signing hereof or that may hereafter be made, created or given by us to for or on account of or at the request of you and/or the Guarantor;
      2. stamp duty, financial institutions duty or any other levy, financial impost or tax incurred by us, payable according to law or arising out of or in connection with the Security;
      3. all costs charges and expenses reasonably incurred by us, acting reasonably, in relation to the creation or enforcement of the Security (including for fees paid to any 3rd party collection agents and legal expenses of us) and including costs, charges and expenses incurred for or in connection with:
        1. us protecting our interest under the Security including all moneys which we or any receiver or any attorney appointed under any security may have paid or may pay in the exercise or enforcement or attempted exercise or enforcement of any right power or remedy conferred on us by the Security;
        2. the preparation, execution, stamping or registration of the Security;
        3. full or partial release or discharge from, transfer or variation of the Security;
        4. any necessary advice in respect of the Security;
        5. any breach of or default of any covenant contained or implied in the Security; or
        6. us making good any default by any Party (other than a default by us) under the Security, or any rights which we may have under any law.
    31. Specific Security means a Security described in the Item Specific Security of the Schedule.
    32. Taxes means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).
    33. Trust means, in respect of a Grantor, any trust in respect of which that Grantor is trustee.
    34. Trust Assets means all present and future property and assets of the Trust.
    35. Trust Property means for a Trust, all the Grantor’s present and after-acquired property which is the subject of the Trust. It includes anything in respect of which the Grantor as trustee of the Trust has at any time a sufficient right, interest or power to grant a Security Interest.
    36. We, us andour means ACN 601 158 507 Pty Ltd ACN 601 158 507 and includes our successor and assigns.
    37. You and your means the borrower named in the Schedule as the Borrower.
  15. INTERPRETATION
    1. In this Agreement, unless the contrary intention appears:
      1. headings are for ease of reference only and do not affect the meaning of this Agreement;
      2. the singular includes the plural and vice versa and words importing a gender include other genders;
      3. other grammatical forms of defined words or expressions have corresponding meanings;
      4. a reference to a Clause, paragraph, schedule or annexure is a reference to a Clause or paragraph of or schedule or annexure to this Agreement and a reference to this Agreement includes any schedules and annexures;
      5. a reference to a document or agreement, including this Agreement, includes a reference to that document or agreement as novated, altered or replaced from time to time;
      6. reference to “A$”, “$A”, “dollar” or “$” is a reference to Australian currency;
      7. a reference to a specific time for the performance of an obligation is a reference to that time in the State, Territory or other place where that obligation is to be performed;
      8. a reference to a Party includes its executors, administrators, successors and permitted assigns;
      9. words and expressions importing natural persons include partnerships, bodies corporate, associations (whether incorporated or not), government and governmental, semi-governmental and local authorities or agencies;
      10. a reference to any legislation or statutory instrument or regulation is construed in accordance with the Acts Interpretation Act 1901 (Cth) or the equivalent State legislation, as applicable;
      11. words and expression defined in the Corporations Act 2001 (Cth) as at the date of this Agreement have the meanings given to them in that Act 2001 at that date;
      12. a reference to an obligation, promise, agreement, covenant, representation or warranty in respect of two or more persons is a reference to an obligation, promise, agreement, covenant, agreement, representation or warranty on them jointly and severally; and
      13. a reference to writing includes typewriting, printing, photography and any other method of representing or reproducing words, figures or symbols in a permanent and visible form.