Current Terms and Conditions for Business/Asset Finance — BHFC Pty Ltd, ABN 79 643 738 354
This booklet explains the basic obligations of customers (and also their guarantors) who obtain commercial asset finance from BHFC PTY LTD.
Please take the time to read the terms and conditions. If you have any questions we recommend that you seek legal or financial advice. You can also obtain more information by calling our office on 02 9457 0869.
The Schedule or Offer Document defines the details of the asset finance Facility. By signing it you agree to abide by all of the terms and conditions in this document.
By signing the Schedule or Offer Document, you declare that:
The Schedule or Offer Document may be executed in any number of counterparts. All of those counterparts taken together are deemed to constitute one and the same instrument.
When you enter into a Contract with us, we agree to purchase the Goods and lease or hire them to you, or lend you the Loan Amount.
We will only accept a Schedule and agree to purchase the Goods, or lend you the Loan Amount if:
Whether or not we provide the Facility, you must pay any reasonable Costs we incur in the process of arranging it, including GST, on the date we incur them.
When you enter the Contract you:
You must tell us as soon as possible if:
You must keep proper accounts and records according to current laws and practices that give a true and fair view of the state of your financial position. You must give us copies of them on our reasonable request.
If we ask for them you must also give us the following company information each year within 120 days of the end of the financial year:
During the course of a Facility, we may have to tell you about things that have changed, and you may also need to inform us of things that have changed (such as your address).
You must send us any notice in writing. You can give us a notice in person at a branch, or by post or by fax.
We can give you a notice in person, by leaving it at your last known address, by pre-paid post, by fax, or in any other way permitted by law.
We can email notices to you directly provided you've given us your email address and agree to receive information by electronic communication. If you have changed your email address then you must tell us as soon as possible. If we send you information by electronic communication, we will provide a hard copy of the information if you ask within 7 days.
Our notices to you take effect from the time you are deemed to receive them as set out below unless a later date is shown on the notice.
| Notices sent by: | Take effect: |
|---|---|
| Post | On the day they would be received in the ordinary course of post. |
| Fax Machine | At the time shown in a transmission report, if the machine creates a report showing that the fax was sent in full. |
| On the day the email enters the system of the host of your email address or your internet service provider. |
You must secure the Facility in the form we require as described in the Schedule or Offer Document. At all times, we must be satisfied with the valuation and title to the Goods.
You must do anything we reasonably ask to enable us to obtain effective title of the Goods and as we reasonably require to exercise our rights, provide a more effective security over the Goods, perfect the security over any bank accounts or any other property which are part of the Security Interest, and enable us to register or perfect the Security Interest.
Where you are the owner of the Goods and offer to sell the Goods back to us, you acknowledge that the purchase price is payable to you as you direct on production of invoices and/or other papers evidencing your title to the Goods, and that we accept this offer by paying the purchase price.
Before using the Goods, you must make sure they are properly installed or erected, identify any records you will need to keep, and make sure you have the manuals and properly trained people to operate the Goods.
When you use the Goods under this Contract you must:
You must comply with all relevant Environmental Laws or standards that apply to the Goods and conduct assessments or environmental audits at our reasonable request, using experts of our choosing and at your reasonable expense.
You must not sell, mortgage, pledge, charge, let, hire or otherwise dispose of the Goods or your rights under the Contract without our prior written permission.
When you sign a Schedule or other Offer Document you agree that you have used your own skill and judgement in selecting the Goods and entering into the Contract. You also agree we have not made, and do not make, any representation, warranty or statement which you have relied on in deciding to enter into the Contract, including about the condition or suitability of the Goods.
If we give our prior written consent, you may sub-hire the Goods to a third party, subject to express acknowledgements from the Third Party including that we are the legal owner (or holder of the Security Interest), and that the Third Party's rights are subject and subordinate to our rights.
If the Security Property already has an existing mortgage or charge or Security Interest over it, then you must establish a priority position or a release with the current mortgagee or holder of the Security Interest that is satisfactory to us.
You must take out insurance for the Goods on or before taking delivery of them, with an insurer acceptable to us, and maintain insurance over the Goods throughout the Term for the full insurable value of the Goods. You must ensure that each insurance policy notes our interest as holder of a Security Interest or owner.
You agree that the provisions of the PPS Law concerning seizure and disposal or retention of the Security Property do not apply in relation to the Security Property while a person is in possession or has control of the Security Property for the purposes of enforcing a Security.
After a Default has occurred, to the extent PPS Law permits, you agree we do not have to give you certain information or notices that we would otherwise have to give you under PPS Law. You waive any rights that you may have under PPS Law to require the Security Property to be dealt with in accordance with PPS Law if we obtain possession or control of it as a result of Enforcement Proceedings.
The Schedule or Offer Document defines the amount of your rental payments or loan repayments. You agree that you will make all payments due to us as we direct.
The Schedule or Offer Document defines the amount of the fees and when you must pay them. You must also pay when we ask: all duties, fees, taxes (other than income taxes), charges and legal fees connected with the Contract; any costs we incur because you have failed to do something you must do; and our reasonable Costs of enforcing the Contract and any security.
You must make your rental payments or loan repayments on the dates and in the frequency stated in your Schedule or other Offer Document. If the dates are not in the month (29th, 30th, 31st) then they are due on the last day of the month. If the repayments are due on a non-Business Day then you must pay them on the next Business Day.
You agree that we have calculated the rent and Residual Value of the Goods so that we will be reimbursed for the Amount Financed and interest. If any of the tax assumptions on which we have calculated rental repayments cease to apply, we may recalculate rental payments to preserve the tax net yield.
For a Variable Rate Facility, the Rental Payments or Loan Repayments will be adjusted at each Re-pricing Date in accordance with the Variable Rate.
The Schedule or Offer Document defines how you intend to make payments or repayments. If you pay by cheque you must allow time for the cheque to clear by the payment date. If you pay by direct debit, you must nominate an account acceptable to us and ensure it contains enough money to cover each payment on the day it is due.
If you want to change the details of the Nominated Account in any way you must tell us immediately by visiting or contacting our office or by calling 02 9457 0869 during business hours. Changes can take up to 21 days to take effect.
For all matters relating to the direct debit arrangement, including requests to defer debits, change debit arrangements, stop or cancel the Direct Debit Request and dispute payments, you should contact us first:
Please allow 21 days for any amendments to take effect. If the due date for payment falls on a non-working day or public holiday, the payment will be processed on the next working day.
During the Term of a Facility you may want to change things (e.g. the amount you've borrowed or the Facility Term) and we may want to change things (e.g. frequency of repayments). This section explains how these changes can be made.
If you request a change in the details of the Facility and we agree to it, we will send you a Letter of Variation, a Schedule or Offer Document or a combination of those documents defining the new arrangement.
Without limiting our rights, we may from time to time change any of the terms and conditions. If we make a change you don't like, you can cancel the Contract by repaying the Facility. Generally, we will give you 30 days' prior written notice of such changes.
| Changes | We may |
|---|---|
| Interest | Change the basis, frequency or reference rate on which interest is charged or paid |
| Minimum balance | Change the minimum balance to which an account keeping fee applies |
| Fees or Charges | Add, change or remove fees or charges or the frequency of charging of any fee or charge |
| Legal matters | Adopt or implement any legal requirement, decision, recommendation, regulatory guidance or standard |
| Benefits and product features | Add, change or remove any concessions or benefits; accommodate changes in the needs of our customers; correct errors or ambiguities |
| Business process and practices | Reflect changes in technology or our processes; bring us into line with industry or market practice |
If you want to terminate this Contract before the Term expires, you can apply to us. We will consider your application and decide whether or not to allow it. For a hire purchase, you can buy the Goods from us at any time before the end of the Term by paying all amounts due, the Termination Amount, and any other fees associated with terminating.
When the Contract ends or is terminated, you must return the Goods in good order (fair wear and tear excepted) at a time and place we reasonably decide. If you return the Goods to us or we recover the Goods, we may try to sell them or we may re-let or re-hire them. We will pay the proceeds towards any amounts you owe.
You are in Default under a range of circumstances, including if you don't keep to the terms and conditions of this Contract; if anything happens that in our reasonable opinion means you will not meet your obligations; if you fail to pay any amount owed to us on time; or if you become insolvent.
If you are in Default we can choose to enforce this Contract. We will give you a default notice (except in certain circumstances) telling you what the Default is and asking you to fix it. You will have at least 7 days to fix the Default.
If you don't fix the Default, we can cancel this Contract; decide that all amounts you owe us are due immediately; sue you for money you owe us; take possession of the Security Property; and exercise any other remedies available to us under law or these terms and conditions.
We may charge interest at the Default Rate on any amount due and remaining unpaid. The Default Rate is a rate that is 3% per annum above the Interest rate we use to calculate the payment under the Contract.
For the purposes of securing payment to us, the borrower/guarantor hereby charges all of their real personal property (including all property acquired after the date of this agreement) in favour of us with the payment of all sums of money to which the borrower/guarantor may become liable to pay to us.
We can enforce this Contract before or after we enforce our rights under any Security. If we don't exercise a right fully or at a given time, we can still exercise it later unless we have expressly agreed not to.
The Contract is governed by the laws in the state or territory in which your address is located, as defined in the Schedule or Offer Document.
If we have to pay GST that relates to a supply under the Contract you must reimburse us the net cost of that GST by paying the amount to us when we ask you to.
If any provision of these terms and conditions is found to be illegal, void or unenforceable, the remaining provisions will continue to apply to the extent possible as if the void or unenforceable part had never existed.
You indemnify us against any and all liability, loss, costs or tax we have to pay due to:
If you are entering into the Facility as the trustee of a trust, or acting as a Guarantor in your capacity as trustee of a trust, the terms and conditions in this section apply to you.
If you are a trustee, you must be the sole trustee (or all trustees) of the trust, have the power under the trust deed to enter into the Contract, enter into the Contract in your personal capacity and as trustee, and have all the necessary authorisations required to sign the Contract. You agree to give us a copy of the trust deed and any other documents that disclose all the terms of the trust.
If you are considering entering into a guarantee you should also read "Privacy" in Section P.3 and "What it means to be a Guarantor" in Section Q of this document.
This section applies to you if you are acting as a Guarantor for a Finance Lease, Hire Purchase, Equipment Loan or Operating Lease.
You guarantee that the borrower will pay us all amounts owing by the borrower under the Guaranteed Contract until we have received the entire amount including interest. Whenever the borrower fails to make a payment, you must pay it for them.
If we ask you to pay an amount on behalf of the borrower, you must pay us the interest on the amount that the borrower would normally have paid, plus interest on that interest. You must pay any amount we ask, up to the Maximum Amount under this guarantee, on the date we specify.
Our rights and your liabilities are not affected by anything we do (or don't do) or anything else that might otherwise affect our rights or the Guarantor's liabilities under any law relating to guarantees, including: changes to the Guaranteed Contract; concessions we give the borrower; releasing or not registering a security; releasing another Guarantor; or the death, insolvency, physical or mental disability of the borrower or any Guarantor.
Key terms used in this document include:
Certain provisions of the Code of Banking Practice apply to individual guarantors and to the Facility if you are an individual or a small business with fewer than 20 full-time (or equivalent) employees, or you manufacture goods and have fewer than 100 full-time (or equivalent) employees.
As a member state of the United Nations, Australia is obliged to implement United Nations Security Council sanctions and other international sanctions. If we are aware that you are a proscribed person or Entity, we may be required to suspend, cancel or refuse you services or close or terminate any account, Facility, transaction, arrangement or agreement with you.
You give us permission to collect, use and exchange your information with others. You must give us accurate and complete information; otherwise you may be breaking the law and we may not be able to provide you with the products and services that you require.
We collect your information to identify you, assess your application for credit, administer our customer relationships, manage risk, meet our obligations in relation to external payment and credit reporting systems, and (unless you tell us not to) to identify and tell you about products and services that may interest you.
You can contact us about privacy issues:
Before you sign a Schedule or Offer Document as guarantor:
A guarantee is an important legal document. When you sign a guarantee, you enter into a binding legal contract. Under that contract you promise to be personally responsible instead of, or as well as, the debtor, to pay the moneys which the debtor owes us.
We can take you to court and ask the court for a judgement against you for the debt you owe us under the guarantee. This could mean that you lose everything you own, including your home.
If you are still not sure about the obligations you take on if you give us a guarantee, you should discuss the matter with your solicitor. You should not have the debtor with you when you speak with the solicitor or the financial adviser.
Before you give us a guarantee, you should definitely get independent legal advice (and possibly financial advice as well) if you are not involved in the day-to-day management of any business whose debts you are asked to guarantee and any one of the following circumstances applies:
The cost of any legal or financial advice you get is your responsibility.