OVERSEA-CHINESE BANKING CORPORATION LIMITED
STANDARD TERMS AND CONDITIONS GOVERNING CREDIT FACILITIES TO PAWNSHOPS (ePTF)
1.TERMS INCORPORATED IN AGREEMENT
1.1 These terms and conditions shall form a part of and be deemed to be incorporated in the provisions of each letter of offer relating to electronic pawnshop financing facilities (ePTF) (the “Facility”) from Oversea-Chinese Banking Corporation Limited (hereinafter called “the Bank” which expression shall include its successors and assigns) to the Borrower (each a “Facility Letter”) and in each agreement entered into between the Bank and the Borrower pursuant to a Facility Letter. The expression “the Borrower” shall mean the person(s) and/or entity described as such in the Facility Letter or (in the absence of such description) the person(s) and/or entity to whom the Facility Letter is addressed.
1.2For the purpose of each such agreement made pursuant to a Facility Letter, “Security Documents” means the instruments, deeds, documents or agreement evidencing any assignment, charge, pledge or other form of encumbrance of or over the assets and property of or present or future debts due or accruing due to the Borrower or other third party to the Bank, as may be specified in the Facility Letter as security for the Facility to be provided thereunder. “Surety” means any person giving a guarantee or any other form of security (including but not limited to a mortgage, assignment, charge, pledge or such other form of encumbrance) in favour of the Bank under the Security Documents.
1.3 Subject to the provisions of Clause 18, in the event of any conflict between the provisions herein and in the Facility Letter and/or the Security Documents, the provisions in the Facility Letter and/or the Security Documents as the case may be, shall prevail.
2.IMPLEMENTATION
The Facility under the Facility Letter can be drawndown only on completion of all requisite legal documentation in form and substance satisfactory to the Bank and the fulfilment of such conditions precedent as the Bank may require.
3.INTEREST
All interest charged (including additional interest) will be calculated based on a 365-day year in respect of the Facility denominated in Singapore Dollars with monthly or such other periodic rests as the Bank may specify and will be payable both before and after judgment as if the covenant to pay the same is an independent covenant. The Bank may vary the interest rate(s) (including additional interest) from time to time at its absolute discretion.
4. ADDITIONAL INTEREST
4.1Interest at the rate specified in the Facility Letter or such other rates as may be determined by the Bank at its sole and absolute discretion from time to time, will be charged on all overdue payment in respect of the Facility including principal and interest on loans, fees, commissions and all other charges not paid when due.
4.2For the Facility not paid on demand, interest will be charged at the rate specified in the Facility Letter or such other rates as may be determined by the Bank at its sole and absolute discretion from time to time.
4.3For any utilisation of the Facility in excess of the approved limit, the Bank’s prescribed fee or fees will be charged.
5.RIGHT OF DEBIT
Without prejudice to any other rights that the Bank may have, the Bank shall have the right (without any obligation) at any time, without prior notice, to debit any of the Borrower’s accounts with the Bank and/or to debit the balance of the Facility (if any) with all accrued interest, unpaid principal and interest, overdue payments, fees, charges, the costs and expenses stated in Clause 24 and all other monies due on the Facility provided no such debiting shall be deemed to be a payment of the amount due (except to the extent of any amount in credit in the Borrower’s account). If such debiting causes the Borrower’s account to be overdrawn, interest shall be payable accordingly.
6.REORGANISATION/CHANGES IN MEMORANDUM AND ARTICLES OF ASSOCIATION
Where the Borrower and/or the Surety is a corporation, the Borrower and/or the Surety shall not, without the Bank’s prior written consent (which will not be unreasonably withheld), undertake or permit any re-organisation, amalgamation, reconstruction, take-over, change of shareholders or any other schemes of compromise or arrangement affecting the Borrower’s and/or the Surety’s present constitution or amend or alter any of the provisions in the Borrower’s and/or the Surety’s Memorandum and Articles of Association relating to the Borrower’s and/or the Surety’s borrowing powers and principal business activities.
7.CHANGE IN CONSTITUTION
The Facility Letter and the Security Documents shall continue to be valid and binding on the Borrower notwithstanding any change in the Borrower’s constitution, if a corporation, by amalgamation, consolidation, reconstruction or otherwise, and if a firm, by retirement, expulsion, death, admission, accession or change of any partners or otherwise.
8. CURRENCY OF FACILITY
The Facility may only be availed in Singapore currency.
9.PAYMENT OF FACILITY
9.1Unless otherwise provided in the Facility Letter, the Facility shall be repayable on demand.
9.2 All payments to be made under the Facility Letter must be in the currency in which the drawing was advanced (“Currency of Drawing”), or such other currency which the Bank may specify, and shall be remitted in that currency to the account and bank which are specified by the Bank from time to time.
9.3 All payments to be made under the Facility Letter shall be made free and clear without any set-off, counter-claim, deduction or withholding whatsoever. If under any applicable law the Borrower is unable to pay without any deduction or withholding, the Borrower will forthwith pay such additional amount so that the net amount received by the Bank will equal the full amount which would have been received had such deduction or withholding not been made, and the Borrower shall furnish to the Bank within the period for payment permitted by the applicable law, an official receipt of the relevant taxation or other authorities for the amounts deducted or withheld as aforesaid.
9.4 If under any applicable law whether as a result of a judgment or an order of Court of any jurisdiction against the Borrower or the liquidation of the Borrower or for any other reason including any national or international, financial, political or economic conditions, currency availability or exchange controls, any payment under or in connection with the Facility Letter or the Security Documents is made or is recovered in a currency (“the Other Currency”) other than the Currency of Drawing, then to the extent that, the payment (when converted at the Rate of Exchange on the date of payment or in the case of liquidation the latest date for the determination of liabilities permitted by the applicable law) falls short of the amount remaining unpaid under the Facility Letter or the Security Documents, the Borrower shall as a separate and independent obligation fully indemnify the Bank against the amount of the shortfall.
The indemnity shall give rise to a separate and independent cause of action and shall apply irrespective of any indulgence granted by the Bank and shall continue in full force and effect despite any judgment, order, claim or proof for a liquidated amount in respect of any sum due under the Facility or any judgment or order.
“Rate of Exchange” means the rate at which the Bank is able on the relevant date to purchase the Currency of Drawing in such foreign exchange market as it may reasonably select with the Other Currency.
9A. UTILISATION OF ELECTRONIC PAWNSHOP FINANCING (ePTF) SERVICES
9A.1Provision of the ePTF Services
9A.1.1The Bank may at its sole and absolute discretion make available to the Borrower the use of all or any part of the ePTF Services in respect of or in connection with the Facility.
9A.1.2 Whenever the Borrower applies for the Facility, such application will also be deemed to be an application to use the ePTF Services provided by the Bank.
9A.1.3 The Bank may at its discretion and at any time add to, alter, vary or modify all or any of the provisions of this Clause 9A by giving notice to the Borrower. If the Borrower does not accept any additions, variations or modifications to this Clause 9A, the Borrower shall discontinue using the ePTF Services. If the Borrower continues to use the ePTF Services, the Borrower shall be deemed to have agreed to the additions, variations or modifications without reservation.
9A.2 ePTF Services
9A.2.1 The Borrower may utilise such ePTF Services as may be provided to the Borrower to transmit information, instructions, authorisations, materials and other communications), make any application or request and access any data (each a "Communication"), in relation to the Facility, as prescribed by the Bank from time to time.
9A.2.2 Notwithstanding anything contained in Clause 9A.2.1, the Bank reserves the right at any time without prior notice: -
(a)to set, vary or cancel limits for any transactions, facilities, services and products that may be carried out through the ePTF Services, whether in monetary or numerical terms or otherwise, and to vary their frequencies and availability periods; and
(b)to suspend, modify or withdraw the provision of any of the ePTF Services.
9A.3Responsibilities
9A.3.1The Borrower shall comply with the Procedures and the Materials in the use of the ePTF Services and shall ensure that all Communications, operations and transactions are transmitted, performed and completed correctly and accurately.
9A.3.2 The Bank may at any time and in its sole and absolute discretion, be entitled to change the Procedures and/or to amend or supplement the Materials without assigning any reason therefor and without prior notice and shall not be liable or responsible for any loss or damage suffered by or caused to the Borrower or arising out of or connected with or by reason of such change, amendment or supplement.
9A.3.3 The Borrower shall be responsible for obtaining, installing and/or upgrading, at its own costs and expense, the software, hardware and/or equipment necessary to access and/or use the ePTF Services.
9A.3.4The Borrower shall ensure the security, proper use and maintenance of the Computer System operated by the Borrower in connection with the Facility and that such Computer System is virus-free and no virus will be transmitted from such Computer System to the Bank’s Computer System as a result of the Borrower’s use of the Computer System.
9A.3.5Any Communication identified by compliance with the Procedures (including the use of the Security Devices) shall be deemed to be given by the Borrower and the Bank shall not be obliged to verify the content of such Communication, to establish the identity of the person giving it or to await any written confirmation of the Communication given by the Borrower. Such Communication shall be conclusive and binding on the Borrower and the Borrower hereby authorises the Bank to rely and act on the same. The Bank is not obliged to act on any request to cancel, revoke, reverse or amend any Communication after it has been transmitted by the Borrower to the Bank. If the Borrower informs the Bank that it wishes to cancel, revoke, reverse or amend any Communication after it has been received by the Bank, the Bank may useits reasonable efforts to assist the Borrower to do so, but shall not be liable for any loss, cost or expense suffered by the Borrower if the Bank does not or is unable to cancel, revoke, reverse or amend such Communication. The Borrower hereby agrees to indemnify the Bank against any loss, liability, claim or expense (including legal fees and expenses on a full indemnity basis) it may incur in connection with assisting the Borrower to cancel, revoke, reverse or amend any Communication.
9A.3.6The Bank is not obliged to act on any Communication which is not transmitted in accordance with the Procedures. The Bank may act on an incomplete Communication where, in the Bank’s opinion, it contains sufficient information, even when the Procedures have not been fully complied with. The Bank has no duty to discover, and shall not be liable for, errors or omissions made by the Borrower or the duplication of any Communication by the Borrower.
9A.3.7The Borrower acknowledges and agrees that the Bank has sole and exclusive ownership and rights to all data and information provided to or obtained by the Borrower in connection with the Facility and the ePTF Services, including all intellectual property rights in and to the Bank's Computer Systems, the Procedures and the Materials (collectively referred to as "Bank Information").
The Borrower agrees to keep all Bank Information confidential and to limit access to its employees (under a similar duty of confidentiality) who require access in the normal course of their employment and to use it in the manner designated by the Bank and in the ordinary course of the Borrower’s business.
The Borrower shall notify the Bank promptly (with confirmation in writing) if it discovers or reasonably suspects that any Bank Information has been or may be compromised or disclosed to any unauthorised person.
9A.4 Security
9A.4.1The Bank shall be entitled to rely on the authority of each person designated by the Borrower and notified to the Bank to send Communications to the Bank or access data in relation to the Facility until the Bank receives written notice of any change and has had reasonable time to act on such notice.
9A.4.2The Borrower undertakes to ensure that: -
(a) all Security Devices are kept confidential and secure; and
(b) there is no unauthorised use of the Security Devices.
9A.4.3The Borrower undertakes to notify the Bank immediately ("Security Notification") if it has reason to believe or has knowledge that any Security Device has become known to or revealed to any third party or there has been unauthorised use of any Security Device and/or any Security Device is lost, mutilated or stolen ("Compromised Security Device") and shall immediately cease to use such Compromised Security Device until further notice from the Bank. Any Security Notification given verbally or electronically, shall be confirmed in writing by the Borrower, failing which the Bank shall not be obliged to act upon the Security Notification.
9A.4.4The Borrower acknowledges that the Bank shall be entitled to deactivate or revoke the use of any one or more of the Security Devices at any time without assigning any reason and without prior notice to the Borrower.
9A.4.5The Borrower acknowledges and confirms that it shall be bound by all Communications and transactions resulting from any instructions which are referable to any Compromised Security Device until such time the Bank has received the Security Notification from the Borrower and has effected cancellation of the Compromised Security Device, and accordingly the Borrower shall be liable for all such Communications and transactions which were processed by the Bank prior to or at the time of such cancellation, or which the Bank, notwithstanding its reasonable endeavours, was unable to stop the processing of.
9A.4.6The Borrower hereby agrees that the Bank shall not be liable in contract, tort (including negligence or breach of statutory duty) or otherwise for any damages, losses, expenses or costs whatsoever (whether direct or indirect, or whether foreseeable or not) suffered or incurred by the Borrower as a result of: -
(a)any transaction resulting from any Communication made by the Borrower or purportedly made by the Borrower and referable to such Compromised Security Device and which was processed by the Bank prior to or at the time of such cancellation, or which the Bank was unable to stop processing of; and
(b)any failure by the Bank to carry out any Communication referable to a Compromised Security Device which was outstanding as at the time the Bank cancels such Compromised Security Device and which the Bank had stopped the processing of.
9A.5No Warranty
9A.5.1 The Bank does not guarantee access to the ePTF Services and may at any time without giving any reason or prior notice suspend, modify or terminate the operations of the whole or any part of the ePTF Services. The Bank accepts no liability to the Borrower for any period when any ePTF Services is unavailable or disrupted for any reason whatsoever or for any loss or damage which may be incurred as a result.
Transmission of Communications to the Bank through the ePTF Services may not be received by the Bank for reasons beyond the Bank's reasonable control including but not limited to mechanical, software, computer, telecommunications or electronic failure or due to upgrading or maintenance of the Bank’s Computer System. Unless the Borrower receives confirmation of receipt of the same from the Bank, Communications may not have been received and accordingly, may not be processed or accepted by the Bank. The Bank shall not be liable to the Borrower in any way for any loss or damage whatsoever or howsoever caused arising, directly or indirectly, in connection with the transmission or failure of transmission of Communications to the Bank through the ePTF Services or any lack of confirmation of receipt of any Communication by the Bank for whatever reason.
9A.5.2The information and materials contained in the Bank's web-site for accessing the ePTF Services, including text, graphics, links or other items are provided "As is", "As Available". The Bank does not warrant the accuracy, adequacy or completeness of this information and materials and expressly disclaims liability for errors or omissions in such information and materials. No warranty of any kind, implied, express or statutory, including but not limited to the warranties of non-infringement of third party rights, title, merchantability, fitness for a particular purpose and freedom from computer virus, is given in conjunction with the information and materials.