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Terms of Service (Issuer)

THIS IS AN IMPORTANT LEGAL DOCUMENT

 

Please read this Agreement carefully. You are advised to fully understand your obligations and risks under this Agreement. If you have any concerns with this Agreement, please consult a lawyer.

 

By registering and logging in, you (“the Issuer”) have agreed to enter into this Issuer’s Agreement for the provision of Services (defined below) by In Fund Pte. Ltd. (“IFPL”) through the online platforms (i) http://www.inft.co (the “Issuer Platform”) and (ii) infund.co (the “Payee Platform”) (collectively, the “Platform”), and usage of the Platform and Services by you, on the standard terms and conditions set out in this Agreement.

 

 

Last Updated: 28 July 2022

infund

22 Sin Ming Ln,

#07-77
Midview City, Singapore

573968

22 Sin Ming Ln,

#07-77
Midview City, Singapore

573968

STANDARD TERMS AND CONDITIONS

 

These standard terms and conditions, the fee schedule setting out fees payable by the Issuer to IFPL (as notified by IFPL to the Issuer from time to time), the Privacy and Data Protection Policy and the Code of Conduct (collectively the “Agreement”), constitute the entire agreement between the corporate user registered as a member of the Platform to obtain funds (the “Issuer”) and IFPL.

 

The Agreement shall be deemed to include:

 

(a)       in respect of each Promissory Note and in relation to the relevant Payee(s), the relevant Issuer and IFPL, all terms governing the Promissory Notes, including the terms set out in the forms in Appendix 1(A) to 1(H) for each Note Type, the Standard Terms and Conditions to Promissory Notes (Appendix 2), and the Facility Commercial Terms;

 

(b)       in respect of each Guarantee given by any Guarantor(s) in favour of IFPL and/or the relevant Payee(s) to secure the relevant Issuer’s obligations under the Promissory Note(s), all terms governing such Guarantee, including the terms of the Guarantee(s) to be entered into by the Guarantor(s) in the form of the Standard Terms and Conditions of Guarantees (Appendix 3) and Short-Form Deed of Guarantee (Appendix 4) which are incorporated into each Guarantee; and

 

(c)        any additional terms and conditions agreed to in writing with IFPL,

 

all of which are incorporated herein by reference and shall form part of the Agreement.

 

All access and use of the contents and services provided on the Platform shall be governed by this Agreement. Unless otherwise provided, any updates, enhancement, variation or addition to any Service, shall be subject to this Agreement.

 

The Issuer’s electronic execution, acceptance and/or acknowledgement of this Agreement or the Issuer’s use of this Platform (whichever comes first) constitutes the Issuer’s acceptance of this Agreement, which shall take effect thereupon.

 

 

 

1.         INTERPRETATION

 

In this Agreement, unless the context otherwise requires, the following expressions shall have the meanings set out against them: ‑

 

“ACRA” means the Accounting and Corporate Regulatory Authority of Singapore;

 

“Agreement” has the meaning set out above;

 

“Affiliate” means, with respect to any specified person, any other person who, directly or indirectly, controls, is controlled by, or is under common control with such person, including without limitation any general partner, managing member, officer, director or trustee of such person, or any company now or hereafter existing that is controlled by one or more general partners, managing members or investment adviser of, or shares the same management company or investment adviser with, such person;

 

“Aggregated Eligible Offers” means the sum of all Eligible Offers submitted in response to a particular Issue Request which are accepted by the Issuer;

 

“Authorised Person” means any person authorised to act on behalf of the Issuer;

 

“Back Up Service Provider” shall have the meaning ascribed to it in Clause 10.1;

 

“Bullet” means a Promissory Note as described in paragraph 4.1(b) of the Standard Terms and Conditions to Promissory Note and substantially in the form set out in Appendix 1(B);

 

“Business Day” means a day on which banks in Singapore are open for business and shall exclude Saturdays, Sundays and public holidays;

 

“Calculation Period” means each period during which interest is payable, as applicable;

 

“Callable” means a Promissory Note as described in paragraph 4.1(e) of the Standard Terms and Conditions to Promissory Note and substantially in the form set out in Appendix 1(E);

 

“Capital Guaranteed” means a Promissory Note as described in paragraph 4.1(f) of the Standard Terms and Conditions to Promissory Note and substantially in the form set out in Appendix 1(F);

 

“Code of Conduct” means the Code of Conduct published on the Platform as from time to time amended, varied and/or supplemented;

 

“Customer” means the customer to whom an Invoice is issued by the Issuer;

 

“Day Count Fraction” means, the fraction used to calculate a rate or an amount of interest for any Calculation Period, and where “30/360” is specified in the terms of the Promissory Note, it shall be the number of days in the Calculation Period divided by 360, calculated in accordance with the following formula:

 

Day Count Fraction = {[360 * (Y2 - Y1)] + [30 * (M2 - M1)] + (D2 - D1)} / 360

 

where:

 

“Y1” is the year expressed as a number, in which the first day of the Calculation Period falls;

 

“Y2” is the year, expressed as a number, in which the day immediately following the last day of the Calculation Period falls;

 

“M1” is the calendar month, expressed as a number, in which the first day of the Calculation Period falls;

 

“M2” is the calendar month, expressed as a number, in which the day immediately following the last day of the Calculation Period falls;

 

“D1” is the first calendar day, expressed as a number, of the Calculation Period, unless such number is 31 in which case D1, will be expressed as 30; and

 

“D2” is the calendar day expressed as a number immediately following the last day of the Calculation Period, unless such number is 31 and D1 is a number greater than 29, in which case D2 will be expressed as 30;

 

“Debentures” shall have the meaning ascribed to it in the SFA;

            

“Early Redemption Option” means the Issuer may redeem the Notes, in whole but not in part, on every interest payment date upon giving an irrevocable notice to the Payee through the Platform at least twenty (20) calendar days prior to the nearest interest payment date;

 

“Eligible Offer” shall have the meaning ascribed to it in Clause 3.6;

 

“Equal Instalment” means a Promissory Note as described in paragraph 4.1(a) of the Standard Terms and Conditions to Promissory Note and substantially in the form set out in Appendix 1(A);

 

“Facility Commercial Terms” means the document setting out the salient commercial terms of the Issuer’s selected Note(s), after the Issuer’s submission of the details of its selected Note(s) on the Issuer Platform;

 

“GIRO” means General Interbank Recurring Order;

 

"Guarantee” means a guarantee provided by the Guarantor as Security for the Issuer’s obligations under this Agreement and substantially in the form set out in Appendix 4 (Short-Form Deed of Guarantee) of this Agreement, and which incorporates the Standard Terms and Conditions of Guarantees;

 

“Guarantor” means any person (including a director, partner, member of the Issuer or any other natural person, or a parent company or any other corporate entity) who provides Security to secure the Issuer’s obligations under the Note;

 

“INFT” means INFT Singapore Pte. Ltd. (UEN No. 202111170K);

 

“Interests Only” means a Promissory Note as described in paragraph 4.1(c) of the Standard Terms and Conditions to Promissory Note and substantially in the form set out in Appendix 1(C);

 

“Interests Upfront” means a Promissory Note as described in paragraph 4.1(d) of the Standard Terms and Conditions to Promissory Note and substantially in the form set out in Appendix 1(D);

 

“Invoice” means an invoice issued by the Issuer to its Customer and submitted in connection with an Issue Request and/or Promissory Note and includes all the Issuer’s rights, interest and title to the proceeds thereof and all the Issuer’s rights under or in relation to the Sales Contract;

 

“Issuer Platform” means “http://www.inft.co” or such other platform to be determined by IFPL from time to time;

 

“Issuer” means a corporate borrower which is registered as a member on the Platform;

 

“Issue Request” shall have the meaning ascribed to it in Clause 3.3;

 

“Maturity Date” means the date on which the Maturity Period ends;

 

“Maturity Period” means such period within which the full amount of the Principal Subscription Amount, amount(s) drawn down, and/or interest (where applicable) will be due and payable;

 

“IFPL Account” means the bank account maintained by IFPL and notified to the Issuer from time to time;

 

“Note Documents” means collectively this Agreement, each Invoice, each Promissory Note, each Security Document and each other agreement or document which is supplemental thereto or which is expressed to be collateral therewith or which is entered pursuant thereto or in accordance with the terms thereof;

 

“Note Type” means the pre-specified structure of the relevant Note (including the drawdown structure, the principal and interest repayment structure, and other applicable terms), and shall include “Equal Instalment”, “Bullet”, “Interests Only”, “Interests Upfront”, “Callable”, “Capital Guaranteed”, “Revolving (Instalments)” and “Revolving (Maturity)” Note Types;

 

“Parties” mean the “Issuer” and “IFPL”, and each of them individually shall be a “Party”;

 

“Payee” means a user which is registered as a member on the Platform who is intending to fund Issue Requests;

 

“Payee’s Note Register” means, in respect of a Payee, the electronic register maintained on the Platform in respect of a Payee containing the Promissory Notes issued to the Payee hereunder;

 

“Payee Platform” means “infund.co” or such other platform to be determined by IFPL from time to time;

 

“Platform” means both the Issuer Platform and the Payee Platform or such other platform(s) to be determined by IFPL from time to time;

 

“Principal Subscription Amount” means the principal amount payable or paid by Payees who have subscribed to the Notes;

 

“Privacy and Data Protection Policy” means the Privacy and Data Protection Policy published on the Platform as from time to time amended, varied and/or supplemented;

 

“Private Placement Exemption” means the exemption from the requirement to register a prospectus under Section 272B(1) of the SFA;

 

“Promissory Note” or “Note” means the promissory note of specified Note Type(s) issued by the Issuer in consideration of the Principal Subscription Amount paid by the Payee(s), which shall include the Standard Terms and Conditions to Promissory Note, as from time to time amended, varied and/or supplemented;

 

“Prospectus” shall have the meaning ascribed to it in Section 239 of the SFA;

 

"Revolving (Instalments)” means a Promissory Note as described in Paragraph 4.1(g) of the Standard Terms and Conditions to Promissory Note and substantially in the form set out in Appendix 1(G);  

 

“Revolving (Maturity)” means a Promissory Note as described in Paragraph 4.1(h) of the Standard Terms and Conditions to Promissory Note and substantially in the form set out in Appendix 1(H);

 

“Sales Contract” means the contract between an Issuer and its Customer for the provision of goods and/or services by the Issuer to the Customer pursuant to which an Invoice was issued by the Issuer;

 

“Securities” shall have the meaning ascribed to it in Section 2 of the SFA, but does not include such other product or class or products as the Monetary Authority of Singapore may prescribe as not being securities;

 

“Security” means any security or quasi-security given by the Issuer or a Guarantor to secure the Issuer’s obligations under the Promissory Notes that are issued to the relevant Payees whose Subscription Offers are selected, which may include but shall not be limited to, personal guarantees, corporate guarantees, charges over shares, charges over real property, charges over receivables, or charges over any other assets of the Issuer or the Guarantor;

 

“Security Documents” means all documents executed or required to be executed by the Issuer or a Guarantor in respect of the Security;

 

“Security Holder” shall mean the entity which holds the Security and Security Documents, which may be IFPL or its Affiliate or such other entity as IFPL may designate or appoint from time to time;

 

“Services” shall have the meaning ascribed to it in Clause 2.7;

 

“Small Offers Exemption” means the exemption from the requirement to register a prospectus under Section 272A(1) of the SFA;

 

“SFA” means the Securities and Futures Act 2001 of Singapore, as the same may be amended, varied and/or supplemented from time to time;

 

“S$”, “SGD” or “$” mean Singapore Dollars, being the lawful currency of the Republic of Singapore;

 

"Standard Terms and Conditions of Guarantees” means the Standard Terms and Conditions of Guarantees as set out in Appendix 3;

 

“Standard Terms and Conditions to Promissory Note” means the terms and conditions applicable to each Promissory Note as set out in Appendix 2;

 

“Subscription Offer” means an offer submitted by a Payee over the Platform in response to an Issue Request, stating the Principal Subscription Amount that the Payee wishes to subscribe for upon the Note and the minimum interest rate at which the Payee wishes to receive for providing the Principal Subscription Amount upon issuance to it of the Note;

 

“Subscription Period” shall have the meaning ascribed to it in Clause 3.5;

 

“Target Rate” means the maximum rate the Issuer is willing to provide as the interest on the Principal Subscription Amount which the Issuer wishes to obtain, as notified in writing by the Issuer to IFPL.

 

The expressions the “Issuer” and the “Payee” shall include their respective lawful authorised successors and assigns.

 

1.2       Any reference in this Agreement to “Clauses” is to the clauses of this Agreement.

 

1.3       The headings to the Clauses are inserted for convenience only and shall not affect the interpretation of this Agreement.

 

1.4       Unless the context otherwise requires or permits, references to the singular number shall include references to the plural number and vice versa, references to persons shall be construed as including bodies corporate and vice versa and words denoting any gender shall include all genders.

 

1.5       Any reference to a statutory provision shall include such provision as from time to time modified, amended or re-enacted so far as such modification, amendment or re-enactment applies or is capable of applying to any transactions entered into hereunder.

 

1.6       IFPL may from time to time and subject to applicable laws and regulations, administer part of the Services through any of its Affiliates (including the administration of the Issuer Platform being administered by INFT), whether through a subcontracting arrangement or otherwise, and any rights of IFPL provided for herein shall, where the context requires and where applicable, be deemed as granted to IFPL and its Affiliates.

2.         REGISTRATION WITH THE PLATFORM

 

2.1       To become a registered member of the Platform, the Issuer shall fulfil the following criteria (or such other additional criteria as may be notified by IFPL generally through the Platform or specifically to the Issuer) and provide IFPL with the information and documents set out hereinunder:

 

(a)       the Issuer shall be an established and credit-worthy business currently operating by way of a company or a limited liability partnership. For the avoidance of doubt, the Issuer shall not be an individual or a sole proprietorship;

 

(b)       the Issuer shall furnish to IFPL corporate documents and/or records filed with or provided by ACRA or an equivalent national or state registry of business registries in the Issuer’s country of incorporation to evidence that it fulfils the criteria set out in Clause 2.1(a) above;

 

(c)        the Issuer, if a limited liability partnership, shall furnish to IFPL its Partnership Agreement, if available;

 

(d)       if a company, the Issuer shall furnish to IFPL its directors’ resolution (in the form prescribed by IFPL) approving the following:

 

  1. registration of the Issuer as a member of the Platform (including the acceptance of this Agreement and the grant of any authority by the Issuer hereunder); and

 

  1. the identification and appointment of the Authorised Person(s) for the purpose of approving any utilisation of the Services by the Issuer (including the submission of details of the Issuer’s selected Note(s), and the acceptance of Aggregated Eligible Offers) from time to time while the Issuer is registered as a member on the Platform;

 

and a certified true copy of its Constitution, Memorandum & Articles of Association (M&AA) or equivalent constitutional documents;

 

(e)        the Issuer shall not have any outstanding court judgements, winding up orders or judicial management orders entered against it and shall not have any outstanding winding up applications or judicial management orders filed against it;

 

(f)         the Issuer shall furnish to IFPL its financial statements (audited where applicable) or such other equivalent documents for such period as IFPL may specify;

 

(g)        the Issuer shall furnish to IFPL its bank statements for such period as IFPL may specify;

 

(h)        the Issuer shall furnish to IFPL details and evidence of a valid Singapore bank account to facilitate the repayments of Principal Subscription Amounts, amount(s) drawn down and/or interest (where applicable); and

 

(i)         the Issuer, its directors, members or partners must meet the minimum credit and fraud risk criteria required by IFPL, which include, inter alia, obtaining reports from credit bureaus and/or other sources specified by IFPL and providing such reports to IFPL.

 

2.2       As part of the registration process, IFPL shall have the right to authenticate the identity of the Issuer, its directors, members, partners and Authorised Persons through such means as IFPL may specify from time to time, including without limitation, requesting for certified true copies of the national identity cards or passports of the directors, members, partners and Authorised Persons, the documents authorizing the Authorised Persons to act on the Issuer’s behalf and other information and documents as IFPL may specify whether or not described in Clause 2.1 above. The Issuer shall not be registered as a member of the Platform unless IFPL is in its sole discretion satisfied with the relevant identification and other documents.

 

2.3       Registration with the Platform requires the provision by the Issuer of a valid email address and a password (or such other identification measures as the Platform may from time to time implement), which the Issuer shall be required to furnish to gain access to restricted areas of the Platform. Each time the Issuer accesses the Platform, the Issuer shall enter its email address and password (and/or such other identification measures as the Platform may from time to time implement).

 

2.4       The email address, password and any other identification measures assigned by IFPL to the Issuer, belong exclusively to the Issuer and are not transferable. The Issuer shall keep its email address, password and other identification measures confidential and secure at all times. The Issuer shall be responsible for all information and activity on the Platform by anyone using its username and password. In particular, the Issuer shall be responsible for the use of its account by its employees, sub-contractors, agents or other persons connected with the Issuer. IFPL reserves the right to terminate, suspend or restrict the access of the Issuer to the Platform and to cease acting on the Issuer’s instructions, if IFPL suspects or believes at its sole discretion that the person logged into the Issuer’s account is not the Issuer or an authorized person of the Issuer or where IFPL suspects or believes at its sole discretion that the account will be used for illegal, fraudulent or unauthorized uses. Any breach of security, loss, theft or unauthorized use of the Issuer’s email address, password or security information must be notified to IFPL immediately.

 

2.5       The Issuer shall not adapt or circumvent the systems in place in connection with the Platform, and shall not access the Platform other than through and for the normal use of it.

 

2.6       The Issuer agrees that IFPL and its Affiliates, as the owner(s) and operator(s) of the Platform, may and have the right to collect, use and disclose the information IFPL and its Affiliates collect in accordance with the purposes and uses identified in the Privacy and Data Protection Policy. The Issuer consents to receive, from time to time, email messages from and through IFPL, including information about IFPL’s products and services.

 

2.7       Upon successful registration by the Issuer with the Platform, the Issuer may enjoy, for the duration of this Agreement, the services which IFPL may provide through the Platform (“Services”), subject to any addition, modification or termination of such Services whether specifically or only in relation to the Issuer, from time to time, at the sole discretion of IFPL without prior notice to the Issuer.

 

2.8       IFPL shall have the right to carry out credit and fraud checks on the Issuer, its members, partners, directors and other aspects of the Issuer’s business. IFPL shall apply its own internal guidelines and policies when assessing registrations and Issue Requests, and shall have complete discretion over the admission of Issuers onto the Platform and/or the posting of Issue Requests on the Platform.

 

 

3.         THE PLATFORM

 

3.1       Upon successful registration by the Issuer on the Platform, the Issuer shall be able to view the Note Types, the credit limit and other parameters of the Notes that are available to the Issuer on the Issuer Platform.

 

3.2       Subject to the available Note Types, the credit limit and the other parameters, the Issuer may from time to time submit the details of its selected Note(s) to IFPL via the Issuer Platform in the prescribed form, and any such details submitted shall be deemed as the relevant Facility Commercial Terms for the selected Note(s), which may include but is not limited to:

 

            (a)       the aggregate Principal Subscription Amounts required by the Issuer;

 

            (b)       the tenure of the Principal Subscription Amounts; and

 

            (c)        the Target Rate (if applicable).

 

3.3.      Upon the Issuer’s submission of the details of its selected Note(s) on the Issuer Platform, the Issuer shall be deemed to have confirmed the Facility Commercial Terms that would be generated on the Issuer Platform and to have formally instructed and permitted IFPL to submit a request on the Payee Platform to obtain the aggregate Principal Subscription Amounts required by the Issuer (in accordance with such confirmed Facility Commercial Terms) from Payees willing and able to fund these requests (the “Issue Request”).

 

3.4       The Issuer agrees to full disclosure by IFPL of all information provided to IFPL by or on behalf of the Issuer, whether through the Platform or other means, to the Payees and any other third parties as IFPL may decide in its discretion in connection with the Services, the Platform, the Note Documents or to comply with any regulatory requirement or directive, or for marketing or promotional purposes.

 

3.5       Upon the publishing of an Issue Request on the Payee Platform, prospective Payees shall have up to 21 days (or such other period as may from time to time be notified on the Payee Platform) (the “Subscription Period”) to make Subscription Offers on the Payee Platform.

 

3.6       A Subscription Offer successfully submitted by a Payee in respect of an Issue Request will be available for acceptance by the Issuer where it is for an amount lower than or equal to the amount of the Issue Request, and, if applicable, where the minimum interest rate at which the Payee wishes to provide the Subscription Offer at is lower than or equal to the Target Rate (“Eligible Offer”). Upon consolidation of all Eligible Offers, information pertaining to the Aggregate Eligible Offers shall be accessible by the Issuer on the Issuer Platform together with the required prescribed documentation to be submitted by the Issuer in connection with the relevant Note(s) (including any necessary corporate authorisations and Security Documents), for the Issuer’s submission. The Issuer’s submission of such required prescribed documentation shall be deemed as the Issuer’s acceptance of the Aggregated Eligible Offers.

 

3.7       In the event that there are insufficient Eligible Offers to fulfil the aggregate Principal Subscription Amount in the Issue Request, IFPL reserves the right to revise the Facility Commercial Terms, in which such revised terms shall also be accessible by the Issuer on the Issuer Platform, when the Issuer accepts the Aggregate Eligible Offers. The Issuer shall be deemed to have accepted the revised Facility Commercial Terms upon acceptance of the Aggregate Eligible Offers.

 

3.8       In the event that the Aggregate Eligible Offers exceeds the amount requested for in the Issue Request, the Issuer authorizes IFPL to do the following:-

 

(a)       to apply a proprietary allocation process which will, inter alia, depending on the allocation method requested by the Issuer:

 

(i)         rank the Eligible Offers in accordance with the minimum interest rate offered in each Eligible Offer, for the selection and acceptance on behalf of the Issuer of the Eligible Offers with the lowest minimum interest rate; or

 

(ii)        rank, select and accept on behalf of the Issuer the earliest Eligible Offers submitted;

 

(b)       to assign a single interest rate to all selected Eligible Offers, such interest rate being not higher than the Target Rate; and

 

(c)        to allocate, to the selected Payee(s) such amount of Principal Subscription Amount determined by the proprietary allocation process.

 

3.9       In connection with Clause 3.8 above, where the Issuer accepts the Aggregated Eligible Offers, the Issuer shall be deemed to have unconditionally accepted and agreed to be bound by the results of the proprietary allocation process described in Clause 3.8 above (as may be amended, varied and/or supplemented by IFPL from time to time). The Issuer acknowledges and agrees that IFPL retains absolute discretion over the proprietary allocation process and may amend, vary and/or supplement such process at any time without prior notice to the Issuer.

 

3.10      Upon the Issuer’s acceptance of the terms of the Aggregated Eligible Offers, the Issuer shall be deemed to have accepted and agreed to be bound by the relevant Note Documents, including the issuance of the relevant Promissory Note to each relevant Payee whose Subscription Offers are selected. Such Promissory Notes shall be deemed executed and issued in electronic form by the Issuer upon the relevant details of each Promissory Note being updated in the Payee’s Note Register, which shall be conclusive evidence of such Promissory Note, save in the case of manifest error. The Issuer agrees that it shall be bound by the terms of the Promissory Note issued in this manner.

 

3.11      The Issuer agrees that each Promissory Note issued by the Issuer shall incorporate the terms of the Standard Terms and Conditions to the Promissory Notes, as from time to time amended, varied and/or supplemented.

 

3.12      The Issuer shall be deemed to have cancelled an Issue Request upon the occurrence of any of the following events:

 

(a)       At the end of the Subscription Period, the Aggregated Eligible Offers in respect of the Issue Request amount to at least 30% (or such other percentage as may from time to time be notified by IFPL) of the amount requested for in the Issue Request, but the Issuer fails to accept the Aggregated Eligible Offers within three (3) Business Days (or such other period as may be prescribed by IFPL) of the end of the Subscription Period; or

 

(b)       During the Subscription Period, the Aggregated Eligible Offers reach 100% of the amount requested for in the Issue Request, but the Issuer fails to accept the terms of the Aggregated Eligible Offers within three (3) Business Days (or such other period as may be prescribed by IFPL) of being notified to do so by IFPL.

 

Upon the Issuer’s deemed cancellation of an Issue Request, the Issuer shall be obliged and liable to pay to IFPL upon demand a cancellation fee of S$1,000 (or such other amount as IFPL may notify to the Issuer from time to time).

 

3.13      This Clause 3 is subject to the internal policy guidelines of IFPL, which may be varied and/or amended from time to time. Any changes, variations or amendments to any part of this Clause 3 will be notified to the Issuer through the Platform.

 

 

4.         ARRANGEMENTS RELATING TO THE PROMISSORY NOTE

 

4.1       The Issuer shall execute or procure the execution of such instructions and forms as IFPL may specify, including but not limited to GIRO, for the purpose of making payments under the Note Documents respectively. The Issuer authorises IFPL on its behalf to:

 

(a)       Deduct from any monies held by IFPL on behalf of the Issuer, whether under trust or escrow, without notice to the Issuer, any such payments due to any Payee or IFPL; and

 

(b)       Instruct the Payee or any other third person proposing to make any payment to the Issuer to make such payment directly to IFPL.

 

4.2       The Issuer acknowledges and agrees that IFPL shall not be obliged to disburse any Principal Subscription Amount of a successfully matched Issue Request to the Issuer unless the Issuer has executed such payment instructions and forms as IFPL may specify.

 

4.3       In the event that the Issuer misses, fails to pay, or only partially pays any instalment on such due date of the repayment of the Principal Subscription Amount, the amount(s) drawn down, interest and other amounts payable by the Issuer, the Issuer authorizes IFPL to and IFPL shall have the right to: -

 

(a)       treat the account of the Issuer as delinquent one (1) Business Day (or such other period as may from time to time be prescribed by IFPL) after the payment was due, and levy a late payment administrative charge of the higher of (i) S$500 or (ii) 3% of the unpaid and overdue amounts as at that date or (iii) such other amounts as may from time to time be prescribed by IFPL.  The late payment administrative charge shall be due and payable by the Issuer immediately upon demand by IFPL;

 

(b)       on behalf of Payees, levy a late interest charge on the unpaid, overdue and/or outstanding amounts as at that date, at a minimum rate of 30% per annum (or such other amount as may from time to time be prescribed by IFPL), such late interest charge to be calculated and accrue on a daily basis;

 

(c)        report such default in payment to the third-party credit bureaus from which the credit ratings of the Issuer are obtained, and adjust IFPL’s indicators relating to the Issuer accordingly;

 

(d)       at the cost and expense of the Issuer, if any amount of Principal Subscription Amount, amount(s) drawn down, interest, and any other amounts payable by the Issuer is due but not paid,

 

 

  1. undertake such other action as may from time to time be authorised by the Payees and/or deemed appropriate by IFPL.

 

4.4       The Issuer acknowledges that notwithstanding any other clause in this Agreement, IFPL may, at such time in its sole and absolute discretion, agree with the Issuer to restructure the remaining amounts payable under the Promissory Note and amend the Promissory Note in any manner that it deems fit, and as many times as it deems necessary. For the avoidance of doubt, no such restructuring can take place without the written agreement of the Issuer. The Issuer further acknowledges and agrees that IFPL may require additional and/or restated Security Documents to be executed by the Issuer and/or any Guarantor, or independent advice to be taken by the Issuer, as a pre-condition to any restructuring.

 

4.5       If the Issuer delivers a notice of early redemption in respect of a Callable Note, the Issuer shall only be permitted to exercise the Early Redemption Option if the Issuer pays to IFPL an early redemption administrative fee of S$1,000 (or such other amount as IFPL may notify to the Issuer from time to time).  For the avoidance of doubt, the Issuer shall not have an Early Redemption Option in respect of any Note Type other than a Callable Note.

 

 

5.         SECURITY

 

5.1       IFPL shall be entitled (but shall not be obliged) to require the Issuer and/or any Guarantor to provide Security for the Issuer’s obligations and to execute Security Documents in respect of such Security. The Security and Security Documents shall be held by the Security Holder. In the event the Issuer is unable to make repayments under the Promissory Note(s) and this Agreement and amounts remain outstanding when due, or the Issuer defaults in meeting any of its obligations under the Promissory Note(s) and this Agreement, the Security Holder shall be entitled to enforce the Security.

 

5.2       The Issuer agrees that the Security Holder, IFPL, the Payees or any receiver appointed by the Security Holder (as the case may be) shall be entitled to be repaid and indemnified out of the proceeds of any recovery under the Security and additionally agrees to indemnify the Security Holder, IFPL, the Payees or any receiver appointed by the Security Holder (as the case may be), against all costs and expenses incurred by any of them in connection with any obtaining of the Security and enforcement or preservation of rights under any and all Security held from time to time in respect of the obligations under the Promissory Note(s) and this Agreement on a full and unlimited indemnity basis, together with default interest at such amount from the date that the relevant cost was incurred until full payment or discharge of such costs.

 

5.3       The Issuer agrees that any Security held by the Security Holder shall generally operate to secure all monies due from the Issuer to the Payees and IFPL from time to time.

 

5.4       The Issuer agrees that the Security Holder shall be entitled to be repaid and indemnified against all costs incurred by the Security Holder in connection with any necessary or desirable registration of the Security with any applicable relevant government authority and that the Issuer shall, on demand, pay to the Security Holder all such costs.

 

5.5       The Issuer agrees to the electronic execution of the Security Documents, and acknowledges that the Security shall be enforceable in accordance with this Clause 5 notwithstanding the aforesaid mode of execution. The Issuer thereby agrees that it shall adhere at all times to the terms provided for under all Security Documents and shall not at any time challenge the enforcement of the Security on the basis that the Security Documents have been executed electronically and shall on demand by IFPL do all such things and execute all such deeds and documents as may be necessary to procure the enforceability of the Security Documents.

 

 

6.         PROCESSING AND ADMINISTRATIVE FEES

 

6.1       Upon the raising of each new Issue Request, the Issuer shall pay to IFPL a non-refundable application processing fee of $500 (or such other amount as may be notified by IFPL, generally through the Platform or specifically to the Issuer). Such application processing fee shall be paid by the Issuer prior to the commencement of IFPL’s review of the Issue Request.

 

6.2       In consideration of the Services provided, the Issuer shall pay to IFPL a completion administrative fee at such rate as may be specified by IFPL from time to time. Such completion administrative fee shall be paid upfront upon the completion of each Issue Request. An Issue Request is completed when the Subscription Offers by the Payees are accepted by the Issuer.

 

6.3       IFPL shall be authorized to deduct, from all Principal Subscription Amounts and other sums received by IFPL on behalf of the Issuer, any fees (including the completion administrative fee) and other amounts due to IFPL.  IFPL may at its discretion require that any fees and any other amounts due to IFPL be paid by a fund transfer to the bank account stipulated by IFPL, by a cheque addressed to IFPL, or by credit card.

 

 

7.         ISSUER’S REPRESENTATIONS AND WARRANTIES

 

7.1       The Issuer represents and warrants to IFPL that:

 

(a)       The Issuer is a corporation or limited liability partnership duly incorporated or registered, validly existing and in good standing under the laws of its jurisdiction of incorporation or registration, with full power and authority to carry on the business and own the property that it now carries on and owns;

 

(b)       The Issuer and each Guarantor has all requisite power and authority to enter into and perform its obligations under the Note Documents and to observe and perform all of the provisions and conditions thereof;

 

(c)        All actions, conditions and things required to be taken, fulfilled and done (including the obtaining of any necessary consents), in order (i) to enable the Issuer and each Guarantor to lawfully enter into, exercise their rights and perform and comply with its obligations under the Note Documents and (ii) to ensure that those obligations are valid, legally binding and enforceable, have been taken, fulfilled and done;

 

(d)       The execution and delivery of, and the performance by the Issuer and each Guarantor of its obligations under, the Note Documents do not:

 

(i)         infringe, or constitute a default under, any instrument, contract, document or agreement to which the Issuer or Guarantor is a party or by which the Issuer or Guarantor or their assets are bound; or

 

(ii)        result in a breach of any law, rule, regulation, ordinance, order, judgement or decree of or undertaking to any court, government body, statutory authority or regulatory, administrative or supervisory body (including, without limitation, any relevant stock exchange or securities council) to which the Issuer or Guarantor is a party or by which they or their assets are bound, whether in Singapore or elsewhere;

 

(e)        All financial statements delivered to IFPL by or on behalf of the Issuer or Guarantor are true and correct in all respects and fairly represent the financial condition of the Issuer or the Guarantor as of the dates thereof, and no material adverse changes have occurred in the financial condition reflected therein since the dates thereof;

 

(f)         None of the financial statements, certificates, documents, statements or information furnished to IFPL by or on behalf of the Issuer or Guarantor (including without limitation the information provided in the Issue Request) contain any untrue statement or omits to state a material fact necessary in order to make the statements contained therein or herein not misleading;

 

(g)        There is no fact which materially adversely affects or may materially adversely affect the ability of the Issuer or Guarantor to observe or perform their obligations under the Note Documents;

 

(h)        No litigation, arbitration or administrative proceedings are taking place, pending or threatened against the Issuer, any Guarantor, any of their directors or partners or any of their assets, which, if adversely determined, might reasonably be expected to have a material adverse effect on their business, assets or conditions, or its ability to perform their obligations under the Note Documents;

 

(i)         Each Issue Request made, and each Principal Subscription Amount obtained, by the Issuer shall be made or obtained by the Issuer as principal and not as nominee for any other person;

 

(j)         The Issuer has complied and shall comply with all requirements pertaining to the registration of prospectuses and/or any applicable exemptions from the requirement to register a prospectus under the laws of any applicable jurisdiction, including without limitation:

 

(i)         Where a Note is issued under the Small Offers Exemption, the maximum amount of Promissory Notes the Issuer issues during a 12 months period shall, together with funds raised through the issuance of other Securities and Debentures during that same 12 months period, be S$5,000,000 or such other amount as from time to time notified by IFPL on the Platform. The maximum amount shall be calculated on a 12 months rolling basis;

 

(ii)        Where a Note is issued under the Private Placement Exemption, the Issuer has not made, and shall not make, in connection with any fund-raising, during any 12 months period, any offers of Securities and Debentures, including Issue Requests, to more than 50 persons, including the Payees or potential Payees approached through the Platform;

 

(k)        The Issuer intends to use, and shall use, the Principal Subscription Amounts for the sole purpose of operating and/or expanding the lawful business of the Issuer and for no other purposes;

 

(l)         If an Invoice is submitted in connection with an Issue Request:

 

(i)         The Issuer has delivered to the Customer specified on the Invoice, the goods and services which are the subject of the Invoice in good order and condition;

 

(ii)        The Issuer has not been paid for the Invoice;

 

(iii)        The transaction(s) underlying the Invoice are bona fide transaction(s) concluded on reasonable commercial terms;

 

(iv)       None of the parties to the Sales Contract is in breach of its obligations under the Sales Contract;

 

(v)        No dispute or challenge has occurred or has been made out of or in connection with the Sales Contract;

 

(vi)       The Invoice and the Sales Contract are legal, valid and in full force and effect, and there are no amendments or modifications made thereto which have not been notified to and approved in writing by IFPL;

 

(vii)       No injunction, order, measure or court proceedings of any sort has been issued, applied for or started under or in connection with the Invoice or the Sales Contract;

 

(viii)      The Issuer has not obtained and will not obtain any other financing pertaining to the Invoice from any other bank, financial institution or marketplace lending platform;

 

(ix)       The Issuer has not assigned or transferred, and will not assign or transfer, to any party other than IFPL or IFPL’s nominee, the Invoice or any part thereof or any of the Issuer’s rights or obligations under the Invoice;

 

(x)        The Customer has made previous payments to the Issuer and these payments are reflected in the Issuer’s bank statements which are furnished to IFPL;

 

(xi)       All payments from the Customer to the Issuer reflected in the Issuer’s bank statements which are furnished to IFPL, are bona fide payments made in connection with bona fide provision of goods and services by the Issuer to the Customer on reasonable commercial terms.

 

7.2       Each representation and warranty herein shall be deemed repeated each time the Issuer makes an Issue Request and each time the Issuer executes a Note Document.

 

 

8.         ISSUER’S UNDERTAKINGS AND ACKNOWLEDGMENTS

 

8.1       The Issuer hereby undertakes to IFPL that:

 

(a)       The Issuer shall pay to the Payees named on the Promissory Note(s), all Principal Subscription Amounts, amount(s) drawn down and interest in accordance with the Promissory Note, such repayment to be made by GIRO into the IFPL Account or in such other manner as may be notified by IFPL to the Issuer from time to time;

 

(b)       The Issuer shall immediately inform IFPL in writing of any change to any of the information provided by the Issuer to IFPL;

 

(c)        The Issuer shall immediately notify IFPL of the occurrence of any of the events described in Clauses 9.1(a) to (k) of this Agreement;

 

(d)(i)    Where the Issuer is not listed on any securities exchange - The Issuer shall not pass any resolution approving any change in directors, partners or shareholders of the Issuer or the divestment of any or all of the shareholding of any shareholder or any or all of the partnership interest of any partner, without obtaining the prior written consent of IFPL;

 

(d)(ii)    Where the Issuer is listed on a securities exchange - The Issuer shall not pass any resolution approving any change in directors or partners of the Issuer, without obtaining the prior written consent of IFPL;

 

(e)        The Issuer shall not pass any resolution for the winding-up of the Issuer, nor cause a petition for winding-up to be presented against the Issuer, or the appointment of a receiver or receiver and manager of the respective undertakings or assets of the Issuer; and

 

(f)         The Issuer shall not act in any manner that constitutes a breach of any terms of any Note Document, the Privacy and Data Protection Policy or the Code of Conduct;

 

(g)        The Issuer shall promptly notify IFPL of any instance in which a Payee contacts the Issuer to request for the details relating to the Issuer including but not limited to contact information of the shareholders, directors or officers of the Issuer;

 

(h)        The Issuer shall comply, in all respects, with all laws of any applicable jurisdiction;

 

(i)         The Issuer shall comply with all requirements pertaining to the registration of prospectuses and/or any applicable exemptions from the requirement to register a prospectus under the laws of any applicable jurisdiction, including without limitation:

 

(i)         Where a Note is issued under the Small Offers Exemption, the maximum amount of Promissory Notes the Issuer issues during a 12 months period shall, together with funds raised through the issuance of other Securities and Debentures during that same 12 months period, be S$5,000,000 or such other amount as from time to time notified by IFPL on the Platform. The maximum amount shall be calculated on a 12 months rolling basis;

 

(ii)        Where a Note is issued under the Private Placement Exemption, the Issuer has not made, and shall not make, in connection with any fund-raising, during any 12 months period, any offers of Securities and Debentures, including Issue Requests, to more than 50 persons, including the Payees or potential Payees approached through the Platform;

 

(j)         The Issuer shall use the Principal Subscription Amounts or amount(s) drawn down for the sole purpose of operating and/or expanding the lawful business of the Issuer and for no other purposes;

 

(k)        If an Invoice is submitted in connection with an Issue Request:

 

(i)         The Issuer shall not commit any breach of its obligations under the Sales Contract;

 

(ii)        The Issuer shall not take any action which may result in, or omit to take any action which omission may result in, the Invoice and the Sales Contract becoming illegal or invalid;

 

(iii)        The Issuer shall not make, and shall not permit any other party to make, any no amendments or modifications to the Invoice or Sales Contract without the prior written approval of IFPL;

 

(iv)       The Issuer shall not obtain any other financing pertaining to the Invoice from any other bank, financial institution or marketplace lending platform;

 

(v)        The Issuer will not assign or transfer, to any party other than IFPL or IFPL’s nominee, the Invoice or any part thereof or any of the Issuer’s rights or obligations under the Invoice.

 

8.2       The Issuer hereby acknowledges and agrees that:

 

(a)       The Issuer shall, when submitting an Issue Request, complete such form as shall be prescribed by IFPL through the Platform;

 

(b)       Each of its Issue Requests will be considered successfully matched and the Principal Subscription Amount will be disbursed to it only when all the conditions of the Note Documents are satisfied;

 

(c)        Any Issue Request made shall be irrevocable but the acceptance of such Issue Request through the Platform or Services shall not constitute any legal obligation on the part of IFPL to process or fulfill the Issue Request and such Issue Request may be withdrawn or terminated by IFPL in its absolute discretion at any time.

 

 

9.         SUSPENSION AND TERMINATION OF SERVICE

 

9.1       IFPL reserves the right to restrict, temporarily or permanently suspend or terminate the Services, at any time, without incurring liability of any kind to the Issuer, if any of the following events occur:-

 

(a)       the Issuer or any Guarantor fails to make any payment to IFPL or any Payee when due, whether under any Note Document or for the Platform or Services;

 

(b)       any representation or warranty made by the Issuer or any Guarantor under any Note Document or through the Platform or Services is incomplete, untrue, incorrect or misleading in any respect;

 

(c)        the Issuer or any Guarantor has breached the terms of any Note Document or is reasonably suspected by IFPL of having breached the terms of any Note Document, the Privacy and Data Protection Policy or the Code of Conduct;

 

(d)        the Issuer or any Guarantor ceases to pay its debts or is unable to pay its debts as they fall due or is deemed unable to or admits its inability to do so or makes a general assignment for the benefit of or a composition with its creditors;

 

(e)        the Issuer or any Guarantor is charged in any court of law with any criminal offence or is reasonably suspected by IFPL of having committed any criminal offence;

 

(f)         the Guarantee is terminated for any reason whatsoever or has not been performed and/or complied with;

 

(g)        any action, proceedings, procedure or step is taken for:

 

(i)         the suspension of payments or a moratorium of any obligation of the Issuer or any Guarantor to pay or repay money, present or future, actual or contingent, sole or joint (“Indebtedness”);

 

(ii)        winding up, dissolution, administration or reorganization (using a voluntary arrangement, scheme of arrangement or otherwise) or bankruptcy of the Issuer or any Guarantor; or

 

(iii)        the appointment of a liquidator, receiver, or administrator in respect of the Issuer or any Guarantor or any part of their undertaking or assets;

 

(h)(i)     where the Issuer is not listed on any securities exchange - there is a change in the directors or partners of the Issuer or a divestment of any of the shareholdings of any shareholder of the Issuer or any or all of the partnership interest of any partner, without the prior written consent of IFPL being obtained;

 

(h)(ii)    where the Issuer is listed on any securities exchange - there is a change in the directors or partners of the Issuer, without the prior written consent of IFPL being obtained;

 

(i)         the Issuer or any Guarantor commences negotiations, or enters into any composition, compromise, assignment or arrangement, with one or more of its creditors with a view to rescheduling any of its Indebtedness;

 

(j)         the Issuer ceases, or threatens to cease, to carry on all or a substantial part of its business;

 

(k)        litigation, arbitration or administrative proceedings are initiated, pending or, to the Issuer’s knowledge, threatened against the Issuer, any Guarantor, any of their directors or partners or any of their assets, which, if adversely determined, might reasonably be expected to have a material adverse effect on the Issuer’s or Guarantor’s business, assets or conditions, the Issuer’s or Guarantor’s ability to perform their obligations under any Note Document;

 

(l)         the Issuer uses the Platform in a manner that may cause IFPL to have legal liability or disrupt others’ use of the Platform;

 

(m)       there is scheduled downtime or recurring downtime; or

 

(n)        there is an occurrence of a Force Majeure Event (as defined below).

 

9.2       Provided that there is no Note currently in force between the Issuer and a Payee and provided that there are no outstanding administrative fees or other payments to be paid to IFPL or any Payees, the Issuer may terminate this Agreement by terminating its membership at the Platform.

 

9.3       IFPL shall not in any way be liable to the Issuer for breach by IFPL of the Code of Conduct and/or the Privacy and Data Protection Policy.

 

9.4       Where Clause 9.1 applies, IFPL shall be, in its sole discretion, at any time, entitled to, by notice in writing to the Issuer, bring forward the date for payment of the Principal Subscription Amount, amount(s) drawn down and any other amounts payable by the Issuer in its entirety to such date as IFPL may specify in the notice, including requiring immediate payment of the entirety of the Principal Subscription Amount, amount(s) drawn down, interest and any other amounts payable by the Issuer.

 

 

10.        THIRD PARTY BACK-UP SERVICE PROVIDER

 

10.1      The Issuer agrees that IFPL shall appoint such third party at IFPL’s sole discretion (such third party hereinafter referred to as the “Back Up Service Provider”) to exercise such of the rights of IFPL, or perform such of the obligations and/or functions of IFPL under this Agreement, and on such terms, from time to time and at any time, as may be agreed between IFPL and the Back Up Service Provider. Evidence of and scope of such appointment will at the request of the Payee be provided by the Back Up Service Provider by way of a facsimile copy of the agreement between IFPL and the Back Up Service Provider or a facsimile copy of the letter of authorization issued by IFPL to the Back Up Service Provider.

 

10.2      The Issuer agrees that the Back Up Service Provider shall be entitled, in variation of the terms of this Agreement:

 

(a)       to maintain an account with a financial institution licensed in Singapore for the purposes of receiving and holding the monies of the Issuers and Payees in relation to existing Notes;

 

(b)       to receive the scheduled payments from the Issuers of existing Notes until such Notes are fully paid up;

 

(c)        to pay into the bank account provided by the Payee at the end of every three (3) months, the amounts due and payable to the Payee for the preceding three (3) months under the existing Promissory Notes of the Payee, provided that the corresponding payment has been received by the Back Up Service Provider from the Issuer;

 

(d)       exercise the rights under Clause 4.3 above in the event that an Issuer misses, fails to pay, or only partially pays any instalment or amount due under any Promissory Note; and

 

(e)        to be the holder of any Security.

 

10.3      The Issuer acknowledges that IFPL shall be entitled at any time upon the commencement of provision of services by the Back Up Service Provider, to cease providing any services or functions to the Payee under this Agreement, and to cease the operation and maintenance of the Platform, and the Platform shall no longer be accessible by the Payees, the Issuers or anyone of the public. The Payee further agrees that the Back Up Service Provider shall be entitled to discontinue the provision of the following services:-

 

(a)       to perform any introductory functions on behalf of Issuers and Payees in order to bring together prospective Issuers and Payees;

 

(b)        to accept any Issue Requests or Subscription Offers; and

 

(c)       to provide a stream-lined process for entering into Notes.

 

10.4      IFPL shall under no circumstances be liable to the Issuer for any failure, neglect, default or breach by the Back Up Service Provider in acting in the capacity set out in Clause 10.1.

 

 

11.       FORCE MAJEURE

 

11.1   IFPL shall not be in breach of this Agreement, nor shall IFPL be liable for any failure or delay in the performance of any other obligations under this Agreement, arising from or attributable to acts, events, omissions, accidents beyond its reasonable control (“Force Majeure Event”), including but not limited to any of the following:-

 

(a)        acts of God, including but not limited to fire, flood, earthquake, windstorm or other natural disaster;

 

(b)        war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions;

 

(c)        terrorist attack, civil war, civil commotions or riots;

 

(d)        nuclear, chemical or biological contamination or sonic boom;

 

(e)        fire, explosion or accidental damage;

 

(f)         collapse of building structures, failure of plant machinery, machinery, computers or vehicles;

 

(g)        interruption or failure of utility service, including but not limited to electric power, gas or water;

 

(h)        any labour disputes, including but not limited to strikes, industrial action or lockouts;

 

(i)         any interruption to the Platform or Services outside the reasonable control of IFPL;  and/or

 

(j)         acts of any government or authority.

            

11.2   In the event that any such delay or non-performance continues for a period in excess of 120 days, IFPL shall have the right to terminate this Agreement by giving the Issuer fourteen (14) days’ notice in writing prior to such termination without affecting any rights accruing prior to such termination.

 

 

12.       INTELLECTUAL PROPERTY RIGHTS

 

12.1      The names, images and logos (“Marks”) identifying IFPL or third parties and their products and services are subject to copyright, design rights and trade marks of IFPL and/or third parties, and all rights to the Marks are expressly reserved by IFPL or the relevant third parties. Nothing contained in this Agreement shall be construed as conferring by implication, estoppel or otherwise any licence or right to use any trademark, patent, design right or copyright of IFPL or any other third party, without the prior written consent of IFPL or such third party. The name of IFPL or any other Marks may not be used in any way, including in any advertising or publicity, or as a hyperlink without prior written permission of IFPL.

 

12.2      IFPL and/or its Affiliates and licensors own and retain all right, title and interest in and to (a) the Platform; (b) all hardware, software, and other items used to provide the Services; and (c) all materials, including without limitation, the information, databases, data, documents, online graphics, audio and video, in the Platform, which contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly authorized by IFPL, the Issuer shall not copy, modify, publish, transmit, distribute, perform, display or sell any of IFPL’s proprietary information. The Issuer shall also not decompile, reverse engineer or otherwise attempt to discover the source code of any content available on the Platform except under the specific circumstances expressly permitted by law or IFPL in writing.

 

12.3      By submitting, posting or displaying content on or through the Platform, the Issuer grants to IFPL a worldwide, non-exclusive, royalty-free licence to reproduce, adapt and publish such content on the Platform for the purpose of displaying, distributing and promoting the Platform or any other of the Services. The Issuer further grants to IFPL an irrevocable non-exclusive license to use such content submitted, posted or displayed, including any ideas, inventions, concepts, techniques or know-how disclosed herein, for any purpose, including the developing and/or marketing of Services.  IFPL reserves the right to retain an archival record of all such content including those deleted or removed by the Issuer.

 

12.4      In the event that the Issuer downloads any software, applications or script from the Platform, the software applications or script, including any files, imagines incorporated in or generated by the software, and data accompanying the software (collectively, the “Software”) are licensed to the Issuer by IFPL on a non-exclusive, non-transferable, and non-sublicensable basis for the sole purpose only of utilizing the Services in accordance with this Agreement, the Privacy and Data Protection Policy and the Code of Conduct Policy.  For the avoidance of doubt, IFPL does not transfer title ownership or any other rights to the Software to the Issuer. The Issuer shall not redistribute, sell, decompile, reverse-engineer, disassemble or otherwise deal with the Software.  Any Software downloaded from the Platform shall be at the Issuer’s own risk.

 

 

13.       DISCLAIMERS

 

13.1      The Issuer acknowledges that IFPL’s principal role is to perform introductory functions on behalf of Issuers and Payees in order to bring together prospective Issuers and Payees, to provide a stream-lined process for the issue of Promissory Notes and to facilitate the payments and collection of sums due under or in connection with those Promissory Notes (including taking certain actions on behalf of Payees upon the Issuer’s default or if the Issuer becomes, or is likely to become, insolvent). Save as set out in this Agreement and the Payee’s Agreement, IFPL will not perform any management or administrative functions on the Issuer’s behalf.  IFPL shall not be a party to any Promissory Note, save for third party rights granted under such Promissory Note.  IFPL does not in any manner warrant that an Issue Request can or will be fulfilled, or that any Payee will perform the terms of the Promissory Note in accordance with the terms thereof.

 

13.2      The Issuer understands and acknowledges that the funds placed by the Payees and the Issuer in the IFPL Account are monies of the Payees and the Issuer respectively, to be applied for purposes directed by the Payees and the Issuer respectively. The Issuer understands that such monies placed in the IFPL Account are not, and shall not be, deposits as defined under the Banking Act 1970 of Singapore.

 

13.3      The content and material available on the Platform is for informational purposes only and should not be regarded as an offer, solicitation, invitation, advice or recommendation to buy or sell investments, securities or any other financial services or banking product. The Issuer shall not rely on any information contained in the Platform in making an investment or other decision and shall obtain appropriate specific professional advice in connection therewith. Nothing contained in the Platform constitutes or should be construed to constitute investment, legal, tax or other advice.

 

13.4      The Issuer acknowledges that the use of the Platform and Services involves risks, including without limitation, the risk of the Platform discontinuing its services and the risks of Issue Requests not being fulfilled or fulfilled to the satisfaction of the Issuer. IFPL shall in no manner be responsible for the conduct of the Payee and shall not be liable if the Payee takes any action (including but not limited to harassment of the Issuer or its director or shareholders) or proceedings against the Issuer.

 

13.5      The Issuer acknowledges and agrees that this Agreement and the membership of the Issuer of the Platform do not in any way constitute an obligation on IFPL to procure funding for the Issuer or constitute a warranty by IFPL that such funding will be available.

 

13.6      The Platform is provided “AS IS” on an “IS AVAILABLE” basis without any representations or any kind of warranties whatsoever (whether expressed or implied by law). IFPL and its licensors expressly disclaim to the fullest extent permitted by law all express, implied and statutory warranties, including without limitation, the warranties as to functionality, operability, accessibility, accuracy, correctness, reliability, updatedness, timeliness, satisfactory quality, merchantability, fitness for a particular purpose, and non-infringement of proprietary rights.

 

13.7      Without limiting the foregoing, IFPL does not warrant that the Services, functions contained in or access to the Platform or other content will be timely, uninterrupted or error-free without omission, that defects will be corrected, or that the Platform or its contents are free of infection by computer viruses, and/or other harmful or corrupting code, programme, macro and such other unauthorized software, or that the download, installation or use of any Software or content of Platform in or with any computer will not affect the functionality or performance of the computer. The Issuer (and not IFPL) shall assume the entire cost of all necessary servicing, repair, or correction, including any defect, problem or damage in the computer. The Issuer agrees not to hold IFPL liable for the loss of any of the content in its computer that is due to any circumstances beyond the control of IFPL.

 

13.8      The Issuer agrees that IFPL has no responsibility or liability for the deletion or failure to store any content maintained or posted by or through the Platform.

 

13.9      The Platform contains links to other websites which are not maintained by IFPL. Similarly, other websites may contain links to the Platform. IFPL has no control over such sites and resources, and the Issuer acknowledge and agree that IFPL is not responsible for the availability or contents of those websites and shall not be liable for any damages or injury arising from the availability or contents of those websites. Any links to other websites are provided as a convenience to the Issuer as a user of the Platform, and does not imply IFPL’s endorsement of the linked website or association with their operators. IFPL disclaims all responsibility and liability, direct or direct, for any damage or loss (including any virus, spyware, malware, worms, errors or damaging materials contained in the linked sites) caused or alleged to be caused by or in connection with the use or reliance on any such content available on or through any such site or resource, which are accessed and used at the Issuer’s own risk.

 

 

14.       LIMITATION OF LIABILITY

 

14.1     IFPL, or any of its directors, officers, employees, agents, Affiliates, subsidiaries, contractors, suppliers, successors or assigns, shall not be liable for any direct, indirect, punitive, incidental, special, consequential damages, losses, expenses, liabilities under any causes of action or any damages whatsoever, including, without limitation, damages for loss of use or data, loss of opportunity, loss of goodwill, loss of profits (whether revenue or anticipated profits) or losses to third parties, arising out of or in any way connected with:-

 

(a)        the use or performance of the Platform or Services;

 

(b)        the delay or inability to use the Platform or Services;

 

(c)        the provision of or failure to provide the Platform or Services;

 

(d)        any information, data, software, products, services and related graphics obtained through the Platform or Services;

 

(e)        any reliance on any statement, opinion, representation or information on the Platform or Services;

 

(f)         the inability of the Issuer to have its Issue Requests fully funded by Payees through the Platform;

 

(g)        otherwise arising out of the use of this Platform or Services,

 

whether based on contract, tort, strict liability or otherwise, except where such loss or damage arises from the breach of this Agreement by IFPL or was caused by the negligence, wilful default or fraud by IFPL.

 

14.2      In the event that IFPL is liable for damages, the Issuer agrees that IFPL’s aggregate liability to the Issuer for any and all damages, losses and causes of action (whether in contract, tort including, without limitation, negligence, or otherwise) in relation to the Platform and the Services shall not exceed the total amount of fees and charges paid by the Issuer to IFPL in the 12 months period immediately preceding the time such liability arose.

 

14.3      Without prejudice to the other provisions herein, the Issuer hereby agrees to indemnify and hold IFPL, its subsidiaries, Affiliates, directors, officers, agents, partners, and employees (collectively the “Indemnified Parties”), harmless at all times against all actions, proceedings, costs, claims, expenses (including all legal costs on a full indemnity basis), demands, liabilities, losses (whether direct, indirect or consequential) and damages (whether in tort, contract or otherwise) whatsoever and howsoever arising, including without limitation claims made by third parties and claims for defamation, infringement of intellectual property rights, death, bodily injury, wrongful use of computers, unauthorised or illegal access to computers (including but not limited to hacking), property damage or pecuniary losses which the Indemnified Parties may sustain, incur, suffer or pay arising out of, in connection with or pursuant to the access to and/or the use of the Platform or Services by the Issuer, whether or not such access or use was authorised or whether it was due to any act or omission on its part, the breach of this Agreement by the Issuer, the violation by the Issuer of any rights of another person or entity or the breach by the Issuer of any statutory requirement, duty or law.

 

 

15.       NOTICES

 

15.1      All notices, demands or other communications required or permitted to be given or made under this Agreement by IFPL to the Issuer shall be in writing and may be sent through the internal messaging system of the Platform, delivered personally, sent by prepaid registered post with recorded delivery, by facsimile transmission, by electronic mail, by telephone calls or through the short messaging system (“SMS”), addressed to the Issuer at its address, its facsimile number, its telephone number or its email address. Any notices or other communication by the Issuer to IFPL shall be regarded as effective and received by IFPL only if in writing, sent by prepaid registered mail, to the address of IFPL.

 

15.2      The address, facsimile number, telephone number and email address of IFPL for the purposes of this Agreement are specified on the Platform, and the address, facsimile number, telephone number and email address of the Payee are specified in its registration data or as time to time notified by the Issuer to IFPL or IFPL to the Issuer.

 

15.3      Any such notice, demand or communication by IFPL to the Issuer shall be deemed to have been duly served (if sent through the internal messaging system, delivered personally, given or made by facsimile, sent through electronic mail, or by a telephone call or SMS) immediately or (if given or made by letter) two (2) Business Days after posting and in proving the same it shall be sufficient to show that personal delivery was made or that the envelope containing such notice was properly addressed, and duly stamped and posted or that the internal message, facsimile transmission, electronic mail or SMS was properly addressed and despatched. Any such notice, demand or communication by the Issuer to IFPL shall be subject to actual receipt by IFPL.

16.       GENERAL

 

16.1      No Partnership. Nothing in this Agreement shall constitute a Party as a partner of the other. Nothing in this Agreement is intended to constitute a Party as an agent of the other and except as otherwise expressly provided under this Agreement, no Party shall have any power or authority to act in the name or on behalf of or to incur or accept any liability or obligation binding upon the other Party except with the prior written consent of the other Party.

 

16.2      Further Assurance. Each Party shall execute such other documents, do such acts and things and take such further actions as may be reasonably required or desirable to give full effect to the provisions of this Agreement and the transactions hereunder and each Party shall use its best endeavors to procure that any necessary third party shall execute such documents, do such acts and things and take such further actions as may be reasonably required for giving full effect to the provisions of this Agreement and the transactions hereunder.

 

16.3      Time of Essence. Any time or period mentioned in any provision of this Agreement may be extended by mutual written agreement between the Parties but as regards any time, date or period originally fixed or any time, date or period so extended as aforesaid, time shall be of the essence.

 

16.4      Remedies. No remedy conferred by any of the provisions of this Agreement is intended to be exclusive of any other remedy which is otherwise available at law, in equity, by statute or otherwise and each and every other remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law, in equity, by statute or otherwise. The election of any one or more of such remedies by a Party hereto shall not constitute a waiver by such Party of the right to pursue other available remedies. No failure on the part of a Party hereto to exercise, and no delay in exercising any right under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right under this Agreement preclude any other or further exercise of any right thereof or of the exercise of any other right.

 

16.5      Release and Indulgence. Any liability to any Party hereto may in whole or in part be released, compounded or compromised or time or indulgence given by that Party in that Party’s absolute discretion as regards the other Party hereto under such liability without in any way prejudicing or affecting the first Party’s rights against the second Party.

 

16.6      Assignment. Save as provided for in this Agreement, the Issuer shall not have the right to assign or transfer any of such rights, undertakings, agreements, duties, liabilities and/or obligations hereunder.

 

16.7      Entire and Continuing Effect of Agreement. This Agreement and the documents referred to in this Agreement collectively embody the entire terms and conditions agreed upon by the Parties as to the subject matter of the same and supersedes and revokes in all respects all other documents, agreements, letters of intent, and undertakings entered into between the Parties, whether such be written or oral, with respect to the subject matter hereof. All provisions of this Agreement shall so far as they are capable of being performed or observed continue in full force and effect notwithstanding completion of the matters set out therein except in respect of those matters then already performed and except where expressly stated to the contrary. This Agreement shall be binding on and shall endure for the benefit of each of the Parties’ successors in title or legal personal representatives.

 

16.8      Amendment. IFPL reserves the right to supplement, vary or amend the terms of this Agreement from time to time immediately upon notification to the Issuer. Changes to this Agreement will be posted on the homepage of the Platform or specifically notified by IFPL, and the “Last Updated” date at the top of this Agreement will be revised. It is the responsibility of the Issuer to review this Agreement upon each access or use to ensure that it is aware of any changes made by IFPL. The continued access or use of the Platform and/or the Services by the Issuer after changes are posted constitutes its agreement to be legally bound by this Agreement as updated and/or amended and for such revised Agreement to apply to all current and past usage by the Issuer of this Platform.  In the event that the Issuer does not agree to any of the changes, IFPL is not obliged to continue providing the Issuer with any Service, and the Issuer must stop using the Platform and the Services.

 

16.9      Survival on Termination. All disclaimers, indemnities and exclusions in this Agreement shall survive the termination of this Agreement by any reason.

 

16.10    Severance. If any provision of this Agreement or part thereof is rendered void, illegal or unenforceable by any legislation to which it is subject, it shall be rendered void, illegal or unenforceable to that extent and no further and, for the avoidance of doubt, the rest of this Agreement shall continue in full force and effect and the legality, validity and enforceability of the whole of this Agreement in any other jurisdiction shall not be affected.

 

16.11    No Third Party Rights. A person who is not a party to this Agreement shall have no right under the Contracts (Rights to Third Parties) Act 2001 of Singapore or under any law, to enforce any provision in this Agreement, save that IFPL shall be entitled to grant to any Payee the right to enforce any or all terms of this Agreement against the Issuer.

 

16.12    Governing Law and Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of Singapore. Any dispute arising out of or in connection with this Agreement and/or the documents referred to herein, including any question regarding their existence, validity or termination, shall be referred to and finally resolved by the Courts of Singapore and the Parties hereby unconditionally and irrevocably submit to the exclusive jurisdiction of the Courts of Singapore.

 

16.13    Costs, Expenses and Taxes. The Issuer shall bear all costs and expenses in relation to the entering of this Agreement.  The Issuer shall also pay any value-added taxes and/or goods and services taxes (including the taxes chargeable under the Goods and Services Tax Act 1993 of Singapore) chargeable on any payment to IFPL.

16.5      Release and Indulgence. Any liability to any Party hereto may in whole or in part be released, compounded or compromised or time or indulgence given by that Party in that Party’s absolute discretion as regards the other Party hereto under such liability without in any way prejudicing or affecting the first Party’s rights against the second Party.

 

16.6      Assignment. Save as provided for in this Agreement, Payees shall not have the right to assign or transfer any of such rights, undertakings, agreements, duties, liabilities and/or obligations hereunder.

 

16.7      Entire and Continuing Effect of Agreement. This Agreement and the documents referred to in this Agreement collectively embody the entire terms and conditions agreed upon by the Parties as to the subject matter of the same and supersedes and revokes in all respects all other documents, agreements, letters of intent, and undertakings entered into between the Parties, whether such be written or oral, with respect to the subject matter hereof. All provisions of this Agreement shall so far as they are capable of being performed or observed continue in full force and effect notwithstanding completion of the matters set out therein except in respect of those matters then already performed and except where expressly stated to the contrary. This Agreement shall be binding on and shall endure for the benefit of each of the Parties’ successors in title or legal personal representatives.

 

16.8      Amendment. infund reserves the right to supplement, vary or amend the terms of this Agreement from time to time immediately upon notification to the Issuer. Changes to this Agreement will be posted on the homepage of the Platform or specifically notified by infund, and the “Last Updated” date at the top of this Agreement will be revised. It is the responsibility of the Issuer to review this Agreement upon each access or use to ensure that it are aware of any changes made by infund. The continued access or use of the Platform and/or the Services by the Issuer after changes are posted constitutes its agreement to be legally bound by this Agreement as updated and/or amended and for such revised Agreement to apply to all current and past usage by the Issuer of this Platform.  In the event that the Issuer does not agree to any of the changes, infund is not obliged to continue providing the Issuer with any Service, and the Issuer must stop using the Platform and Services.

 

16.9      Survival on Termination. All disclaimers, indemnities and exclusions in this Agreement shall survive the termination of this Agreement by any reason.

 

16.10    Severance. If any provision of this Agreement or part thereof is rendered void, illegal or unenforceable by any legislation to which it is subject, it shall be rendered void, illegal or unenforceable to that extent and no further and, for the avoidance of doubt, the rest of this Agreement shall continue in full force and effect and the legality, validity and enforceability of the whole of this Agreement in any other jurisdiction shall not be affected.

 

16.11    No Third Party Rights. A person who is not a party to this Agreement shall have no right under the Contracts (Rights to Third Parties) Act (Cap 53B) of Singapore or under any law, to enforce any provision in this Agreement, save that infund shall be entitled to grant to any Payee the right to enforce any or all terms of this Agreement against the Issuer.

 

16.12    Governing Law and Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of Singapore. Any dispute arising out of or in connection with this Agreement and/or the documents referred to herein, including any question regarding their existence, validity or termination, shall be referred to and finally resolved by the Courts of Singapore and the Parties hereby unconditionally and irrevocably submit to the exclusive jurisdiction of the Courts of Singapore.

 

16.13    Costs, Expenses and Taxes. The Issuer shall bear all costs and expenses in relation to the entering of this Agreement.  The Issuer shall also pay any value-added taxes and/or goods and services taxes (including the taxes chargeable under the Goods and Services Tax Act (Cap. 117A( of Singapore) chargeable on any payment to infund.

Appendix 1(A): Equal Instalment Note

 

For value received, the Issuer promises to pay to each Payee, in Singapore dollars, the relevant Principal Subscription Amount and Interest as specified in this Promissory Note, on such Repayment Date and in accordance with the schedule specified in this Promissory Note

Appendix 1(B): Bullet Note

 

For value received, the Issuer promises to pay to each Payee, in Singapore dollars, the relevant Principal Subscription Amount and Interest as specified in this Promissory Note, on such Repayment Date and in accordance with the schedule specified in this Promissory Note

Appendix 1(C): Interest Only Note

 

For value received, the Issuer promises to pay to each Payee, in Singapore dollars, the relevant Principal Subscription Amount and Interest as specified in this Promissory Note, on such Repayment Date and in accordance with the schedule specified in this Promissory Note

Appendix 1(D): Interest Upfront Note

 

For value received, the Issuer promises to pay to each Payee, in Singapore dollars, the relevant Principal Subscription Amount and Interest as specified in this Promissory Note, on such Repayment Date and in accordance with the schedule specified in this Promissory Note

Appendix 1(E): Callable Note

 

For value received, the Issuer promises to pay to each Payee, in Singapore dollars, the relevant Principal Subscription Amount and Interest as specified in this Promissory Note, on such Repayment Date and in accordance with the schedule specified in this Promissory Note

Appendix 1(F): Capital Guaranteed Note

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Screenshot (221).png

Appendix 1(G): Revolving Note (Instalments)

 

For value received, the Issuer promises to pay to each Payee, in Singapore dollars, the relevant Principal Subscription Amount and Interest as specified in this Promissory Note, on such Repayment Date and in accordance with the schedule specified in this Promissory Note

Screenshot (222).png
Screenshot (223).png

Appendix 1(H): Revolving Note (Maturity)

 

For value received, the Issuer promises to pay to each Payee, in Singapore dollars, the relevant Principal Subscription Amount and Interest as specified in this Promissory Note, on such Maturity Date as specified in this Promissory Note

Screenshot (224).png

Appendix 2: Standard Terms and Conditions to Promissory Note

STANDARD TERMS AND CONDITIONS TO PROMISSORY NOTE

 

These standard terms and conditions, the Agreement entered into between infund Private Limited and the Payee and the Agreement entered into between infund Private Limited and the Issuer for the usage of the Platform and Services, together with the Promissory Note entered into between the Payee(s) and the Issuer, setting out the particulars of the Payee(s), the Issuer and the Principal Subscription Amount, and the repayment schedule setting out the interests and amounts payable and the date on which such repayment is payable (collectively the “Note”), constitutes the terms on which this Promissory Note is issued.

 

 

1.         INTERPRETATION

 

1.1       In this Note, unless the context otherwise requires, the following expressions shall have the meanings set out against them: ‑

 

"Business Day" means a day on which banks in Singapore are open for business and shall exclude Saturdays, Sundays and public holidays;

 

“Customer” means the customer to whom an Invoice is issued by the Issuer;

 

"Day Count Fraction" means, the fraction used to calculate a rate or an amount of interest for any Calculation Period, and where “30/360” is specified in the terms of the Promissory Note, it shall be the number of days in the Calculation Period divided by 360, calculated in accordance with the following formula:

 

Day Count Fraction = {[360 * (Y2 - Y1)] + [30 * (M2 - M1)] + (D2 - D1)} / 360

 

 where:

 

"Y1" is the year expressed as a number, in which the first day of the Calculation Period falls;

 

"'Y2" is the year, expressed as a number, in which the day immediately following the last day of the Calculation Period falls;

 

"M1" is the calendar month, expressed as a number, in which the first day of the Calculation Period falls;

 

"M2" is the calendar month, expressed as a number, in which the day immediately following the last day of the Calculation Period falls;

 

"D1" is the first calendar day, expressed as a number, of the Calculation Period, unless such number is 31 in which case D1, will be expressed as 30; and

 

"D2" is the calendar day expressed as a number immediately following the last day of the Calculation Period, unless such number is 31 and D1 is a number greater than 29, in which case D2 will be expressed as 30;

 

“Debentures” shall have the meaning ascribed to it in the SFA;

 

“Early Redemption Option” means the Issuer may redeem the Notes, in whole but not in part, on every Interest Payment Date upon giving an irrevocable notice to the Payee through the Platform at least twenty (20) calendar days prior to the nearest Interest Payment Date;

 

“Event of Default” shall have the meaning set out in Clause 9.1 of these Terms and Conditions;

 

“GIRO” means General Interbank Recurring Order;

 

“Guarantor” means any person (including a director, partner, member of the Issuer or any other natural person, or a parent company or any other corporate entity) who provides Security to secure the Issuer’s obligations under the Note;

 

“Interest” shall have the meaning set out in Clause 3 of these Terms and Conditions;

 

“Invoice” means an invoice issued by the Issuer to its Customer and submitted in connection with an Issue Request and/or Promissory Note and includes all the Issuer’s rights, interest and title to the proceeds thereof and all the Issuer’s rights under or in relation to the Sales Contract;

 

“Issuer” means a corporate borrower which is registered as a member on the Platform;

 

“Maturity Date” means the date on which the Maturity Period ends;

 

“Maturity Period” means such period within which the full amount of the Principal Subscription Amount will be due and payable;

 

“infund” means infund Private Limited;

 

“infund Account” means the bank account maintained by infund and notified to the Issuer from time to time;

 

“Note Documents” means the Note, these Standard Terms and Conditions to Promissory Note, each Invoice, each Security Document and each other document which is supplemental thereto or which is expressed to be collateral therewith or which is entered into pursuant to or in accordance with the terms thereof;

 

“Note Type” means the pre-specified principal and interest repayment structure of the Note, and shall include “Equal Instalment”, “Bullet”, “Interests Only”, “Interests Upfront” and “Callable” Note Types;

 

“Parties” mean the “Issuer” and “infund” and the “Payee” and “infund”, and each of them individually shall be a “Party”;

 

“Payee” means a user which is registered as a member on the Platform who is intending to fund Issue Requests;

 

“Platform” means infund.com or such other platform owned and/or operated by infund from time to time;

 

“Principal Subscription Amount” means the principal amount subscribed for by the Payee(s) for this Note;

 

“Private Placement Exemption” means the exemption from the requirement to register a prospectus under Section 272B(1) of the SFA;

 

“Prospectus” shall have the meaning ascribed to it in Section 239 of the SFA;

 

“Repayment Date” means such date on which the Principal Subscription Amount, interest and/or any other amounts are payable under the Note, as set out in a repayment schedule specified in the Promissory Note;

 

“Sales Contract” means the contract between an Issuer and its Customer for the provision of goods and/or services by the Issuer to the Customer pursuant to which an Invoice was issued by the Issuer;

 

“Securities” shall have the meaning ascribed to it in Section 239 of the SFA, but does not include such other product or class or products as the Monetary Authority of Singapore may prescribe as not being securities;

 

“Security” means the additional security given by the Issuer or a Guarantor to secure the Issuer’s obligations under the Note, which may include but shall not be limited to, personal guarantees, corporate guarantees, charges over shares, charges over real property, charges over receivables, or charges over any other assets of the Issuer or the Guarantor;

 

“Security Documents” means all documents executed or required to be executed by the Issuer or Guarantor in respect of the Security;

 

“Security Holder” shall mean the entity which holds the Security and Security Documents, which may be infund or a related entity of infund or such other entity as infund may designate or appoint from time to time;

 

“SFA” means the Securities and Futures Act (Cap 289) of Singapore, as the same may be amended, varied or supplemented from time to time;

 

“Small Offers Exemption” means the exemption from the requirement to register a prospectus under Section 272A(1) of the SFA; and

 

“S$”, “SGD” or “$” mean Singapore Dollars, being the lawful currency of the Republic of Singapore.

 

The expressions the “Issuer” and the “Payee” shall include their respective lawful authorised successors and assigns.

 

1.2        Any reference in this Note to “Clauses” is to the clauses to this Note.

 

1.3        The headings to the Clauses are inserted for convenience only and shall not affect interpretation of this Note.

 

1.4        Unless the context otherwise requires or permits, references to the singular number shall include references to the plural number and vice versa, references to persons shall be construed as including bodies corporate and vice versa and words denoting any gender shall include all genders.

 

1.5        In the absence of any expression to the contrary, all payments and repayments made under the provisions of this Note, including damages, shall be made in Singapore Dollars unless otherwise agreed by Parties.

 

 

2.         PROMISSORY NOTE

 

2.1        The Issuer and each Payee acknowledges and agrees that each Note:

 

(a)        is issued under the Small Offers Exemption, Private Placement Exemption or other applicable exemption from prospectus registration requirements under the SFA  or the laws of any applicable jurisdiction; and

 

(b)        is not made in or accompanied by a Prospectus that is registered with the Monetary Authority of Singapore or any other regulatory body; and

 

(c)        shall not be subsequently sold to any person, unless the offer resulting in such subsequent sale is made in accordance with all applicable requirements for such sales under the SFA or the laws of any applicable jurisdiction.

 

 

3.         INTEREST

 

3.1        The Issuer shall pay an interest (“Interest”) on the Principal Subscription Amount at the “Accepted Rate” specified in the Promissory Note.

 

3.2        With the exception of an “Interests Upfront” note, Interest shall accrue daily and shall be payable on such date in accordance to the Note, as determined by the Note Type.

 

3.3       In the case of an “Interests Upfront” Note, Interest shall be calculated by applying the “Accepted Rate” on the “Principal Subscription Amount” for the entire tenor of the note.

 

3.4        If the Issuer fails to make any payment due under this Note on any Repayment Date, interest payable upon late payment of the unpaid, overdue and/or outstanding amounts shall in addition accrue and compound daily, at a rate as set out under “Late Interest Rate” in the Promissory Note, from the date of non-payment to the date of the actual payment.

 

 

4.         REPAYMENT UPON THE PROMISSORY NOTE

 

4.1        The Issuer shall make repayments according to the specification of the various Note Types:-

 

(a)        If the Note Type is specified as “Equal Instalment”,

 

(i)         The Issuer shall repay the Principal Subscription Amount in instalments (“Instalment”), together with all interest accrued and due up to each Repayment Date. Such amount payable and the Repayment Dates shall be set out in a payment schedule specified in the Promissory Note.

 

(ii)        The Principal Subscription Amounts shall be payable in full by the Maturity Date.

 

(b)        If the note type is specified as “Bullet”,

 

(i)         The Issuer shall repay the Principal Subscription Amounts together with all interest accrued and due in full on the Maturity Date.

 

(ii)        The Maturity Date shall be the Repayment Date of such Note Type.

 

(c)        If the note type is specified as “Interests Only”,

 

(i)         The Issuer shall repay the interest accrued and due up to each Repayment Date. Such amount payable and the Repayment Dates shall be set out in a payment schedule specified in the Promissory Note.

 

(ii)        The Principal Subscription Amounts shall be payable in full by the Maturity Date.

 

(d)        If the note type is specified as “Interests Upfront”,

 

(i)         The Issuer shall repay the interest calculated and due on each Repayment Date. Such amount payable and the Repayment Dates shall be set out in a payment schedule specified in the Promissory Note.

 

(ii)        The Issuer shall repay the Principal Subscription Amount in instalments (“Instalment”) up to each Repayment Date. Such amount payable and the Repayment Dates shall be set out in a payment schedule specified in the Promissory Note.

 

(iii)        The Principal Subscription Amounts shall be payable in full by the Maturity Date.

 

(e)        If the note type is specified as “Callable”,

 

(i)         The Issuer shall repay the interest accrued and due up to each Repayment Date. Such amount payable and the Repayment Dates shall be set out in a payment schedule specified in the Promissory Note.

 

(ii)        The Issuer has the option to redeem all, but not some only, of the Principal Subscription Amounts on an Early Redemption Date by giving an irrevocable notice to the Payee(s) through the platform at least twenty (20) calendar days prior to the nearest Repayment Date.

 

(iii)        In the event, no notice has been given to redeem the Principal Subscription Amounts on any Repayment Date, the Principal Subscription Amounts shall be payable in full by the Maturity Date.

 

4.2       The Issuer shall make repayments by GIRO into the infund Account or in such other manner as may be notified by infund to the Issuer from time to time.

 

 

5.         SECURITY

 

5.1       All monies due and owing under this Note and all monies due and owing from the Issuer to all Payees on the Platform from time to time shall be secured by the Security (if any) granted by the Issuer and the Guarantors to the Security Holder, which the Security Holder shall hold and enforce for and on behalf of the Payees.

 

5.2       The Security Holder, the Payees or any receiver appointed by the Security Holder (as the case may be) shall be entitled to be repaid and indemnified out of the proceeds of any recovery under the Security and additionally agrees to indemnify the Security Holder, the Payees or any receiver appointed by the Security Holder (as the case may be), against all costs and expenses incurred by any of them in connection with any obtaining of the Security and enforcement or preservation of rights under any and all Security held from time to time in respect of the obligations under the Promissory Note on a full and unlimited indemnity basis, together with default interest at such amount from the date that the relevant cost was incurred until full payment or discharge of such costs.

 

5.3       The Security Holder shall be entitled to be repaid and indemnified against all costs incurred by the Security Holder in connection with any necessary or desirable registration of the Security with any applicable relevant government authority and that the Issuer shall, on demand, pay to the Security Holder all such costs.

6.         REPRESENTATIONS AND WARRANTIES

 

6.1        The Issuer represents and warrants that:

 

(a)       The Issuer is a corporation or limited liability partnership duly incorporated or registered, validly existing and in good standing under the laws of its jurisdiction of incorporation or registration, with full power and authority to carry on the business and own the property that it now carries on and owns;

 

(b)       The Issuer and each Guarantor has all requisite power and authority to enter into and perform its obligations under the Note Documents and to observe and perform all of the provisions and conditions thereof;

 

(c)        All actions, conditions and things required to be taken, fulfilled and done (including the obtaining of any necessary consents), in order (i) to enable the Issuer and each Guarantor lawfully to enter into, exercise their rights and perform and comply with its obligations under the Note Documents and (ii) to ensure that those obligations are valid, legally binding and enforceable, have been taken, fulfilled and done;

 

(d)       The execution and delivery of, and the performance by the Issuer and each Guarantor of its obligations under, the Note Documents do not:

 

(i)         infringe, or constitute a default under, any instrument, contract, document or agreement to which the Issuer or Guarantor is a party or by which the Issuer or Guarantor or their assets are bound; or

 

(ii)        result in a breach of any law, rule, regulation, ordinance, order, judgement or decree of or undertaking to any court, government body, statutory authority or regulatory, administrative or supervisory body (including, without limitation, any relevant stock exchange or securities council) to which the Issuer or Guarantor is a party or by which they or their assets are bound, whether in Singapore or elsewhere;

 

(e)        All financial statements published on the Platform by or on behalf of the Issuer or Guarantor are true and correct in all respects and fairly represent the financial condition of the Issuer as of the dates thereof, and no material adverse changes have occurred in the financial condition reflected therein since the dates thereof;

 

(f)         None of the financial statements, certificates, documents, statements or information furnished on the Platform by or on behalf of the Issuer or Guarantor contain any untrue statement or omits to state a material fact necessary in order to make the statements contained therein or herein not misleading;

 

(g)        There is no fact which materially adversely affects or may materially adversely affect the ability of the Issuer or Guarantor to observe or perform their obligations under the Note Documents;

 

(h)        No litigation, arbitration or administrative proceedings are taking place, pending or threatened against the Issuer, each Guarantor, any of their directors or partners or any of their assets, which, if adversely determined, might reasonably be expected to have a material adverse effect on their business, assets or conditions, or its ability to perform their obligations under the Note Documents;

 

(i)         Each Issue Request made, and each Principal Subscription Amount obtained, by the Issuer shall be made or obtained by the Issuer as principal and not as nominee for any other person;

 

(j)         The Issuer has complied and shall comply with all requirements pertaining to the registration of prospectuses and/or any applicable exemptions from the requirement to register a prospectus under the laws of any applicable jurisdiction, including without limitation:

 

(i)         Where a Note is issued under the Small Offers Exemption, the maximum amount of Promissory Notes the Issuer issues during a 12 months period shall, together with funds raised through the issuance of other Securities and Debentures during that same 12 months period, be S$5,000,000 or such other amount as from time to time notified on the Platform. The maximum amount shall be calculated on a 12 months rolling basis;

 

(ii)        Where a Note is issued under the Private Placement Exemption, the Issuer has not made, and shall not make, in connection with any fund-raising, during any 12 months period, any offers of Securities and Debentures, including Issue Requests, to more than 50 persons, including the Payees or potential payees approached through the Platform;

 

(k)        If an Invoice was submitted by the Issuer in connection with the Note:

 

(i)         The Issuer has delivered to the Customer specified on the Invoice, the goods and services which are the subject of the Invoice in good order and condition;

 

(ii)        The Issuer has not been paid for the Invoice;

 

(iii)        The transaction(s) underlying the Invoice are bona fide transaction(s) concluded on reasonable commercial terms;

 

(iv)       None of the parties to the Sales Contract is in breach of its obligations under the Sales Contract;

 

(v)        No dispute or challenge has occurred or has been made out of or in connection with the Sales Contract;

 

(vi)       The Invoice and the Sales Contract are legal, valid and in full force and effect, and there are no amendments or modifications made thereto which have not been notified to and approved in writing by infund;

 

(vii)       No injunction, order, measure or court proceedings of any sort has been issued, applied for or started under or in connection with the Invoice or the Sales Contract;

 

(viii)   The Issuer has not obtained and will not obtain any other financing pertaining to the Invoice from any other bank, financial institution or marketplace lending platform;

 

(ix)       The Issuer has not assigned or transferred, and will not assign or transfer, to any party other than infund or infund’s nominee, the Invoice or any part thereof or any of the Issuer’s rights or obligations under the Invoice;

 

(x)        The Customer has made previous payments to the Issuer and these payments are reflected in the Issuer’s bank statements which are furnished to infund;

 

(xi)       All payments from the Customer to the Issuer reflected in the Issuer’s bank statements which are furnished to infund, are bona fide payments made in connection with bona fide provision of goods and services by the Issuer to the Customer on reasonable commercial terms.

 

6.2        Each Payee represents and warrants that:

 

(a)        All actions, conditions and things required to be taken, fulfilled and done (including the obtaining of any necessary consents), in order (i) to enable the Payee lawfully to enter into, exercise its rights and perform and comply with its obligations under this Note and (ii) to ensure that those obligations are valid, legally binding and enforceable, have been taken, fulfilled and done; and

 

(b)        The execution and delivery of, and the performance by it of its obligations under, this Note do not:

 

(i)         infringe, or constitute a default under, any instrument, contract, document or agreement to which it is a party or by which it or its assets are bound; and

 

(ii)        result in a breach of any law, rule, regulation, ordinance, order, judgement or decree of or undertaking to any court, government body, statutory authority or regulatory, administrative or supervisory body (including, without limitation, any relevant stock exchange or securities council) to which it is a party or by which it or its assets are bound, whether in Singapore or elsewhere.

 

 

7.         UNDERTAKINGS

 

7.1        The Issuer hereby undertakes that:

 

(a)        The Issuer shall pay to the Payees named on the Note, all Principal Subscription Amounts in accordance with the repayment schedule specified in the Note, such repayment to be made by GIRO into the infund Account or in such other manner as may be notified by infund to the Issuer from time to time;

 

(b)        The Issuer shall immediately inform infund in writing of any change to any of the information provided by the Issuer;

 

(c)        The Issuer shall immediately notify infund of the occurrence of any Event of Default;

 

(d)(i)   Where the Issuer is not listed on any securities exchange - The Issuer shall not pass any resolution approving any change in directors, partners or shareholders of the Issuer or the divestment of any or all of the shareholding of any shareholder, without obtaining the prior written consent of infund;

 

(d)(ii)  Where the Issuer is listed on a securities exchange - The Issuer shall not pass any resolution approving any change in directors or partners of the Issuer, without obtaining the prior written consent of infund;

 

(e)        The Issuer shall not pass any resolution for the winding-up of the Issuer, nor cause a petition for winding-up to be presented against the Issuer, or the appointment of a receiver or receiver and manager of the respective undertakings or assets of the Issuer; and

 

(f)         The Issuer shall not act in any manner that constitutes a breach of any terms of any Note Document, the Privacy and Data Protection Policy or the Code of Conduct;

 

(g)        The Issuer shall comply, in all respect, with all laws of any applicable jurisdiction;

 

(h)        The Issuer shall comply with all requirements pertaining to the registration of prospectuses and/or any applicable exemptions from the requirement to register a prospectus under the laws of any applicable jurisdiction, including without limitation:

 

(i)         Where a Note is issued under the Small Offers Exemption, the maximum amount of Promissory Notes the Issuer issues during a 12 months period shall, together with funds raised through the issuance of other Securities and Debentures during that same 12 months period, be S$5,000,000 or such other amount as from time to time notified on the Platform. The maximum amount shall be calculated on a 12 months rolling basis;

 

(ii)        Where a Note is issued under the Private Placement Exemption, the Issuer has not made, and shall not make, in connection with any fund-raising, during any 12 months period, any offers of Securities and Debentures, including Issue Requests, to more than 50 persons, including the Payees or potential payees approached through the Platform;

 

(j)         If an Invoice was submitted by the Issuer in connection with the Note:

 

(i)         The Issuer shall not commit any breach of its obligations under the Sales Contract;

 

(ii)        The Issuer shall not take any action which may result in, or omit to take any action which omission may result in, the Invoice and the Sales Contract becoming illegal or invalid;

 

(iii)        The Issuer shall not make, and shall not permit any other party to make, any amendments or modifications to the Invoice or Sales Contract without the prior written approval of infund;

 

(iv)       The Issuer shall not obtain any other financing pertaining to the Invoice from any other bank, financial institution or marketplace lending platform;

 

(v)        The Issuer will not assign or transfer, to any party other than infund or infund’s nominee, the Invoice or any part thereof or any of the Issuer’s rights or obligations under the Invoice.

 

 

8.         DEBT RECOVERY ACTIONS

 

8.1       In the event that the Issuer or any Guarantor misses, fails to pay, or only partially pays an Instalment or other payment that is due, or any part of the Principal Subscription Amount is not fully repaid by the Maturity Date, the Parties agree that infund has the authority to take such action as may be deemed appropriate by infund in its sole and absolute discretion, including without limitation:

 

(a)       Appoint third party debt collection agents to recover the unpaid amounts from the Issuer and/or the Guarantor. The Payees shall first pay for the costs and expenses incurred in relation to the services provided by the third party debt recovery agents and the Issuer shall be obliged to indemnify the Payees for such costs and expenses;

 

(b)       Commence legal proceedings against the Issuer and/or the Guarantor;

 

(c)        Exercise any of the Payees and/or infund’s rights under any of the Security Documents;

 

(d)       Require the Payees to assign the Note to infund or a company appointed by infund, which may sell the Note to a Note purchaser or commence legal proceedings against the Issuer to recover such sums. Such assignment may be:

 

(i)         on the basis that the assignee buys over the outstanding debt by paying to the Payees a price agreed to Payees who in aggregate hold 50% or more (or such other percentage as may from time to time be notified by infund) of the Note’s Principal Subscription Amount, and the proceeds from the recovery shall be retained by the assignee; or

 

(ii)   on the basis that the Note is assigned without the debt, and what is recovered by the assignee, after deducting all costs and expenses incurred by the assignee in the course of recovery, shall be paid to the Payee(s);

 

(e)        Any other course of action deemed appropriate by infund or authorised by the Payees for the purpose of or in connection with recovering the unpaid amounts from the Issuer and/or Guarantor.

 

 

9.         EVENTS OF DEFAULT

 

9.1        Each of the events or circumstances set out in Clause 9.1(a) to (j) below is an “Event of Default”:

 

(a)        The Issuer or any Guarantor fails to make any payment to infund or any Payee when due under or in connection with any Note Document;

 

(b)        The Issuer or any Guarantor has breached the terms of any Note Document;

 

(c)        Any representation or warranty made by the Issuer or any Guarantor under any Note Document is incomplete, untrue, incorrect or misleading in any respect;

 

(d)        The membership of the Issuer in the Platform is terminated for any reason under the agreement entered into between the Issuer and infund;

 

(e)        The Issuer or any Guarantor ceases to pay its debts or is unable to pay its debts as they fall due or is deemed unable to or admits its inability to do so or makes a general assignment for the benefit of or a composition with its creditors;

 

(f)         Any action, proceedings, procedure or step is taken for:

 

(i)         the suspension of payments or a moratorium of any obligation of the Issuer to pay or any Guarantor or repay money, present or future, actual or contingent, sole or joint (“Indebtedness”);

 

(ii)        winding up, dissolution, administration or reorganization (using a voluntary arrangement, scheme of arrangement or otherwise) of the Issuer or any Guarantor; or

 

(iii)        the appointment of a liquidator, receiver, administrator in respect of the Issuer or any Guarantor or any part of the undertaking or assets of the Issuer or any Guarantor;

 

(g)        The Issuer or any Guarantor commences negotiations, or enters into any composition, compromise, assignment or arrangement, with one or more of its creditors with a view to rescheduling any of its Indebtedness;

 

(h)        The Issuer ceases, or threatens to cease, to carry on all or a substantial part of its business;

 

(i)(i)      Where the Issuer is not listed on any securities exchange - there is a change in the directors or partners of the Issuer or a divestment of any of the shareholdings of any shareholder of the Issuer, without the prior written consent of infund being obtained;

 

(i)(ii)   Where the Issuer is listed on any securities exchange - there is a change in the directors or partners of the Issuer, without the prior written consent of infund being obtained;

 

(j)         Litigation, arbitration or administrative proceedings are initiated, pending or, to the Issuer’s knowledge, threatened against the Issuer, any Guarantor, any of their directors or partners or any of their assets, which, if adversely determined, might reasonably be expected to have a material adverse effect on the Issuer’s or Guarantor’s business, assets or conditions, or the Issuer’s or Guarantor’s ability to perform its obligations under any Note Document.

 

9.2        At any time after an Event of Default has occurred, infund may, upon notice to the Issuer, on behalf of the Payee(s), terminate this Note and demand immediate repayment of the entire amount of the Principal Subscription Amount, including accrued Interest up to the date of repayment.

 

 

10.       INDEMNITIES

 

10.1      Each of the Issuer and the Payee(s) shall keep the other parties fully and effectively indemnified against all losses, costs, damages, claims, demands, actions, proceedings, liabilities and expenses whatsoever, that may incur in connection with or arising from any material breach of its representations, warranties, obligations, covenants and undertakings under this Note.

 

 

11.       COSTS, EXPENSES AND TAXES

 

11.1      Costs and expenses. Each of the Issuer and the Payee(s) shall bear all their own costs and expenses in relation to the entering of this Note, including the administration fees to be paid to infund.

 

 

12.       NOTICES

 

12.1      All notices, demands or other communications required or permitted to be given or made under this Note between the Payee(s) and the Issuer shall firstly be through the online messaging system on the Platform, or alternatively, in writing and delivered personally or sent by prepaid registered post with recorded delivery, addressed to the intended recipient thereof at its registered address or to such other address as a party hereto may from time to time duly notify the other in writing.

 

12.2      The addresses of the Issuer and the Payee(s) hereto for the purposes of this Note are specified in Form above.

 

12.3      Any such notice, demand or communication shall be deemed to have been duly served (if sent through the online messaging system on the Platform or delivered personally) immediately or (if given or made by letter) two (2) Business Days after posting and in proving the same it shall be sufficient to show that personal delivery was made or that the envelope containing such notice was properly addressed, duly stamped and posted.

 

13.       GENERAL

 

13.1      Further Assurance. Each Party shall execute such other documents, do such acts and things and take such further actions as may be reasonably required or desirable to give full effect to the provisions of this Note and the transactions hereunder and each party shall use its best endeavours to procure that any necessary third party shall execute such documents, do such acts and things and take such further actions as may be reasonably required for giving full effect to the provisions of this Note and the transactions hereunder.

 

13.2      Time of Essence. Any time or period mentioned in any provision of this Note may be extended by mutual written agreement between the Parties but as regards any time, date or period originally fixed or any time, date or period so extended as aforesaid, time shall be of the essence.

 

13.3      Remedies. No remedy conferred by any of the provisions of this Note is intended to be exclusive of any other remedy which is otherwise available at law, in equity, by statute or otherwise and each and every other remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law, in equity, by statute or otherwise. The election of any one or more of such remedies by a party hereto shall not constitute a waiver by such party of the right to pursue other available remedies. No failure on the part of a party hereto to exercise, and no delay in exercising any right under this Note will operate as a waiver thereof, nor will any single or partial exercise of any right under this Note preclude any other or further exercise of any right thereof or of the exercise of any other right.

 

13.4      Release and Indulgence. Any liability to any party hereto may in whole or in part be released, compounded or compromised or time or indulgence given by that party in that party’s absolute discretion as regards the other party hereto under such liability without in any way prejudicing or affecting the first party’s rights against the second party.

 

13.5      Assignment. Save as expressly provided for in this Note, the Payee(s) shall not have the right to sell, assign or transfer this Note or any of such rights, undertakings, agreements, duties, liabilities and/or obligations hereunder.

 

13.6      Entire and Continuing Effect of Agreement. This Note and the documents referred to herein collectively embody the entire terms and conditions agreed upon by the Parties as to the subject matter of the same and supersedes and revokes in all respects all other documents, agreements, letters of intent, and undertakings entered into between the Parties, whether such be written or oral, with respect to the subject matter hereof. No amendment or variation of this Note shall be effective unless in writing and signed by or on behalf of each party. All provisions of this Note shall so far as they are capable of being performed or observed continue in full force and effect notwithstanding completion of the matters set out therein except in respect of those matters then already performed and except where expressly stated to the contrary. This Note shall be binding on and shall endure for the benefit of each of the Parties’ successors in title or legal personal representatives.

 

13.7      Severance. If any provision of this Note or part thereof is rendered void, illegal or unenforceable by any legislation to which it is subject, it shall be rendered void, illegal or unenforceable to that extent and no further and, for the avoidance of doubt, the rest of this Note shall continue in full force and effect and the legality, validity and enforceability of the whole of this Note in any other jurisdiction shall not be affected.

 

13.8      Governing Law and Jurisdiction. This Note shall be governed by, and construed in accordance with, the laws of Singapore. Any dispute arising out of or in connection with this Note and/or the documents referred to herein, including any question regarding their existence, validity or termination, shall be referred to and finally resolved by the Courts of Singapore and the Parties hereby unconditionally and irrevocably submit to the exclusive jurisdiction of the Courts of Singapore.

 

13.9      Privacy and Data Protection. This Note shall be subject to, and the Parties agree to be bound by, the Privacy and Data Protection Policy of infund.

 

13.10    Rights of Third Parties.  For the avoidance of doubt, each of infund and the Security Holder shall have the right to exercise the rights and enforce the benefits to which they are entitled under these Terms and Conditions and to act in accordance with the authorisations granted to them under these Terms and Conditions.  Save as specified above, the application of the Contracts (Rights of Third Parties) Act is expressly excluded.

Heading 1

Appendix 3: Standard Terms and Conditions of Guarantees

 

STANDARD TERMS AND CONDITIONS OF GUARANTEES

 

These standard terms and conditions, together with the Guarantee granted by the Guarantor to In Fund Pte. Ltd. (“IFPL”) and the Payees, and setting out the particulars of the Guarantor, the Payees and the terms of the Promissory Notes, (collectively the “Guarantee”), constitutes the entire agreement between the Guarantor, the Payees and IFPL.

 

1.         In consideration of the Payees subscribing for the Promissory Note(s) and paying monies to the Issuer pursuant to the subscription of the Promissory Note(s), the Guarantor hereby unconditionally and irrevocably guarantees to pay to and satisfy IFPL and the Payees, on demand and/or through IFPL, the aggregate amount of any indebtedness and liability due, and sum owing (including any interest and fees and other charges owing), from time to time, by the Issuer to all Payees and IFPL under and/or in connection with all Promissory Note(s) issued by the Issuer to the Payees from time to time while this Guarantee remains in force (collectively, the “Guaranteed Sum”).

 

2.         This Guarantee shall not be considered as satisfied by any intermediate payment or satisfaction of the whole or any part of any sum or sums of money owing as aforesaid but shall be a continuing security and shall extend to cover all or any amount for the Guaranteed Sum which has become due under the terms under which such Guaranteed Sum were granted.

 

3.         Notwithstanding any defect, informality or insufficiency in the borrowing powers or the liquidation, winding up or insolvency of the Issuer, the liability of the Guarantor hereunder shall continue in full force and effect until all Payees and IFPL shall have been paid in full the Guaranteed Sum.

 

4.         If any monies are paid by the Guarantor to any of the Payees or IFPL under this Guarantee, the Guarantor shall not in respect of the amount so paid by them or any of them seek to enforce repayment or to exercise any other rights or legal remedies of whatsoever kind which may accrue howsoever to the Guarantor in respect of the amount so paid until all monies guaranteed hereunder and owing from the Issuer to the Payees and IFPL have been fully paid to the Payees and IFPL.  

 

5.         Any indebtedness of the Issuer now or hereafter held by the Guarantor shall be subordinated to the indebtedness of the Issuer to the Payees and IFPL and such indebtedness of the Issuer to the Guarantor if the Payees or IFPL so requires shall be collected, enforced and received by the Guarantor as trustee for the Payees and IFPL and shall be paid over to the Payees and IFPL on account of the indebtedness of the Issuer to the Payees and/or IFPL in respect of the Guaranteed Sum but without reducing or affecting in any manner the liability of the Guarantor under this Guarantee until all monies guaranteed hereunder have been fully paid to the Payees and IFPL.

 

6.         Though as between the Guarantor and the Issuer, the Guarantor is surety only for the Issuer, yet as between the Guarantor and the Payees and/or IFPL, the Guarantor shall be deemed to be the principal debtor for all the monies the payment of which is hereby guaranteed and accordingly shall not be discharged nor shall the Guarantor's liability be affected in any way by any act, thing, omission or means whatever whereby the Guarantor's liability would have been discharged if the Guarantor had not been principal debtor.

 

7.         This Guarantee shall bind and continue to bind the Guarantor notwithstanding the occurrence of the following events at any time before, on or after the execution of this Guarantee: - (a) any winding-up (whether voluntary or compulsory), amalgamation, or reconstruction of any of the Payees or IFPL, or (b) any winding-up (whether voluntary or compulsory), amalgamation or reconstruction of the Issuer, (c) any amalgamation or reconstruction of the Guarantor, or (d) the winding-up (whether voluntary or compulsory), or any other legal disability of the Guarantor.

 

8.         This Guarantee shall be irrevocable and shall remain in full force and effect at all times, until all amounts payable by the Issuer to the Payees and/or IFPL have been fully paid to the Payees and/or IFPL by the Issuer or otherwise and IFPL has determined (acting reasonably) no further Guaranteed Sum remains or arises for a continuous period of six (6) months.

 

9.         The Guarantor shall not impose any condition or qualification for/in making any payment to the Payees and/or IFPL pursuant to such demand. 

 

10.       The Guarantor hereby agrees that the obligations and liabilities of the Guarantor under this Guarantee shall be absolute and unconditional and, in addition to the other provisions hereof, shall not be determined, discharged, abrogated, released or in any way affected, prejudiced or impaired, by: 

 

(a)       any of the Payees granting explicitly or by conduct or otherwise, whether directly or indirectly, to the Issuer, the Guarantor or any other person of any time, forbearance, concession, credit compounding, compromise, waiver, variation, renewal, release, discharge or other advantage or indulgence; 

 

(b)       any assertion of or failure to assert any right or remedy on the part of any Payee against the Issuer;

  

(c)        any variation or amendments of the terms and conditions of the Promissory Note(s); 

 

(d)       any moratorium or other period staying or suspending, by statute or the order of any court or other authority, all or any of the Payees’ rights, remedies or recourse against the Issuer;

 

(e)        any insolvency, winding-up, liquidation, bankruptcy or dissolution of any of the Payees or IFPL; or

 

(f)         any reason of any other dealing, matter or thing which, but for the provisions of this Clause, could or might operate to affect or discharge all or any part of the obligations and liabilities of the Guarantor hereunder,

 

whether known or agreed to by the Guarantor. Nothing done or omitted by the Payees and/or IFPL in pursuance of any authority or permission contained in this Guarantee shall affect or discharge the liability of the Guarantor hereunder.

 

11.       All sums payable by the Guarantor under this Guarantee shall be paid (i) via GIRO, into the account maintained by IFPL with a local financial institution for the purposes of the Promissory Notes, or such other manner as may be prescribed by IFPL (ii) free of any restriction or condition, (iii) free and clear of and (except to the extent required by law) without any deduction or withholding on account of any tax, levy or any other charges whatsoever including but not limited to any goods and services tax, and (iv) without deduction or withholding (except to the extent required by law) on account of any other amount, whether by way of set-off, counterclaim or otherwise.

 

12.       This Guarantee is a continuing guarantee and is in addition to and not in substitution of any other security that any Payee and/or IFPL may now or hereafter hold in relation to any amounts subscribed by the Payees under the Promissory Notes.

 

13.       As a separate and independent obligation, the Guarantor irrevocably and unconditionally undertakes to indemnify each of the Payees and IFPL on a full indemnity basis against all losses, damage, liabilities and claims that the Payees or IFPL may sustain or incur in consequence of or arising from the any failure by the Issuer to repay part or all of the Guaranteed Sum.

             

14.       The Guarantor hereby undertakes to and for the benefit of the Payees and IFPL that it shall execute and do all acts and take such steps as may be necessary to procure that all other persons, if required, execute all such further deeds, assurance, and documents and do such acts as may be required so that full effect may be given to the provisions of this Guarantee. 

             

15.       The Guarantor hereby agrees that in the event that the Issuer or the Guarantor misses, fails to pay, or only partially pays an Instalment or other payment that is due under this Guarantee, IFPL has the authority to commence legal proceedings against the Issuer and/or the Guarantor as may be deemed appropriate by IFPL in its sole and absolute discretion.

 

16.       The Guarantor shall pay to the Payees and IFPL, on demand and through IFPL, all costs, expenses (including legal fees on a full indemnity basis) suffered or incurred by such Payees in the enforcement of this Guarantee.

             

17.       The illegality, invalidity or unenforceability of any provision of this Guarantee under the law of any jurisdiction shall not affect or prejudice the legality, validity or enforceability of any other provision of this Guarantee under the law of that jurisdiction or the legality, validity or enforceability of this Guarantee or any provision hereof including that provision under the law of any other jurisdiction.

             

18.       This Guarantee shall be governed by and construed in all respects according to the laws of Singapore and the Guarantor hereby submits to the non-exclusive jurisdiction of the Singapore courts.  

 

19.       The Guarantor hereby irrevocably and unconditionally waives any objection which the Guarantor may now or hereafter have to the laying of venue of any actions, suits or proceedings arising out of or in connection with this Guarantee brought in any court, and hereby further irrevocably and unconditionally waives and agrees not to:

 

(a)       challenge the jurisdiction of such court; and

 

(b)       plead or claim that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.

 

20.       The Guarantor irrevocably agrees that should the Payees through IFPL and/or IFPL take any proceedings anywhere (whether for an injunction, specific performance, damages or otherwise), no immunity (to the extent that it may at any time exist, whether on the grounds of sovereignty or otherwise) from those proceedings, from attachment (whether in aid of execution, before judgment or otherwise) of the Guarantor's assets or from the execution of judgment shall be claimed by the Guarantor or on the Guarantor's behalf or with respect to the Guarantor's assets, any such immunity being irrevocably waived. The Guarantor irrevocably agrees that the Guarantor and the Guarantor's assets are, and shall be, subject to such proceedings, attachment or execution in respect of the Guarantor's obligations under this Guarantee.

 

21.       Where the Guarantor is a foreigner or a corporation incorporated outside Singapore the Guarantor shall at all times maintain an agent for service of process in Singapore and any writ, judgment or other notice of legal process shall be sufficiently served on the Guarantor if delivered to such respective agent at its address for the time being notified to IFPL.  The Guarantor undertakes not to revoke the authority of such agent and if, for any reason, any agent no longer serves as his agent to receive service of process, another agent will be immediately appointed and IFPL advised accordingly.

 

22.       The Guarantor hereby expressly and irrevocably permits and authorises IFPL and IFPL's officers to disclose, reveal and divulge at any time in such manner and under such circumstances as IFPL deems necessary or expedient in its sole discretion without prior reference to the Guarantor any and all information and particulars relating to and in connection with the Guarantor, any and all of the Guarantor's accounts with IFPL, the Guarantor's credit standing and financial position, any transactions or dealings between the Guarantor, the Payees and IFPL and/or this Guarantee to any person at any time and from time to time, including but not limited to:-

 

(a)       any person who may enter into a contractual relationship with IFPL;

 

(b)       any of IFPL's subsidiaries, associate companies, agents, agencies or vendors;

 

(c)        IFPL's auditors and professional advisors including its solicitors;

 

(d)       any of the Payees’ or IFPL’s potential assignee or transferee;

 

(e)        any person who has given any security to the Payees or IFPL for any facilities granted to the Issuer;

 

(f)         any person who is jointly or jointly and severally liable to the Payees and IFPL with the Guarantor and/or the Issuer;

 

(g)        the police or any public officer conducting an investigation in connection with any offence including suspected drug trafficking offences;

 

(h)        any receiver appointed by IFPL;

 

(i)         any person to whom disclosure is permitted or required by any statutory provision by law;

 

(j)         any credit bureau; and/or

 

(k)        any governmental agencies and authorities in Singapore and elsewhere.

 

23.       IFPL may at any time assign and transfer to any person all or any part of their rights and benefits under this Guarantee and in that event this Guarantee shall thereafter be read and construed and shall have effect as if the assignee were a party hereto to the intent that the assignee shall have the same rights against the Guarantor as it would have had if it had been an original party hereto.

 

24.       A person who is not a party to this Guarantee shall have no rights under the Contracts (Rights of Third Parties) Act 2001 to enforce any of its terms.

 

25.       This Guarantee may be signed in any number of counterparts, all of which taken together and when delivered to the parties hereto shall constitute one and the same instrument.  Any party may enter into this Guarantee by signing any such counterpart.

 

26.       In this Guarantee unless the context otherwise requires:-

 

(a)       words importing the singular number include the plural number and vice versa;

 

(b)       words importing the masculine gender include the feminine and neuter genders and references to any gender include any other gender;

 

(c)        the expression "IFPL" includes IFPL’s successors and assigns;

 

(d)       the expression "the Guarantor" includes its/his personal representatives or successors;

 

(e)        references to a person or persons shall be deemed to include individuals, firms, companies, corporations and unincorporated bodies of persons; and

 

(f)         the expression "liabilities" means and includes all liabilities (whether incurred as principal or as surety) and obligations in respect of the payment or repayment of money to the Payees, IFPL or any of IFPL's agencies in Singapore or elsewhere whatsoever whether such liabilities or obligations be present or future actual or contingent primary or collateral several or joint and whether incurred in Singapore or elsewhere and whether in Singapore Dollars or in any other currency or currencies.

Appendix 4: Short-Form Deed of Guarantee

 

Form of Short-Form Deed of Guarantee

 

This short form deed of guarantee (“Guarantee”) is made on [date].

 

BY

1.[Insert name of guarantor] (ID/Registration No. [Insert number]), a [company incorporated in / citizen of] [insert country], with the registered address of [Insert address];

(the “Guarantor”)

IN FAVOUR OF

2. IN FUND PTE. LTD. (Registration No. 201323794Z), a company incorporated in the Republic of Singapore and having its principal place of business at 22 Sin Ming Lane, #07-77, Midview City, Singapore 573969(“IFPL”);

AND

3. Each person named and described in Part 1 of Schedule 1 hereto (each, a “Payee”),

(collectively the “Parties” and each a “Party”).

 

 

WHEREAS

 

a. As at the date of this Guarantee, the Guarantor is a [shareholder and/or director] of the person named and described in Part 2 of Schedule 1 hereto (the “Issuer”).

 

b. The Issuer wishes to procure the provision of the Principal Subscription Amount from the Payees by issuing Promissory Notes pursuant to the Agreements.

 

c. The Guarantor is providing this Guarantee in favour of the Payees and IFPL (acting as a facilitator of debt collection for and on behalf of the Payees pursuant to the terms of the Agreements) as security for the full performance and discharge of the Guaranteed Sum as defined in the Standard Terms and Conditions of Guarantees.

 

NOW IT IS HEREBY AGREED AS FOLLOWS:

 

1. DEFINITIONS

 

1.1 All capitalised terms used and not defined herein shall have the respective meanings ascribed to them under the agreements entered into between IFPL, the relevant Payees, and the Issuer respectively (the “Agreements”) and the Guarantee Terms (as defined herein).

1.2 In this Guarantee, unless the context requires otherwise:

 

  • Guarantee Terms” means the terms and conditions governing this Guarantee as set out under the Standard Terms and Conditions of Guarantees which are incorporated herein.

 

2. GUARANTEE

 

2.1 The Guarantee Terms shall form part of this Guarantee and shall have the same force and effect as if expressly set out in the body of this Guarantee.

 

2.2 In consideration of the Payees’ provision of the Principal Subscription Amount to the Issuer, the Guarantor hereby unconditionally and irrevocably:

 

(a)  guarantees the due and full payment by the Issuer of the Guaranteed Sum in accordance with, in particular, the Standard Terms and Conditions of Guarantees as well as the terms of the Agreements; and

 

(b) agrees as a separate undertaking to be liable as principal and primary debtor (in so far as practicable) to IFPL for the due and full payment of the Guaranteed Sum.

 

 

THIS GUARANTEE IS EXECUTED AND DELIVERED AS A DEED.

 

WHERE A PARTY HAS SIGNED BELOW ELECTRONICALLY, SUCH PARTY DOES SO WITH THE CLEAR AND EXPRESS INTENTION FOR EXECUTING AND DELIVERING THIS GUARANTEE AS A DEED. 

 

WHERE A PERSON IS ACTING AS A WITNESS ON BEHALF OF A PARTY AND HAS SIGNED BELOW ELECTRONICALLY, SUCH PERSON DOES SO IN WITNESS OF SUCH PARTY HAVING DULY EXECUTED THIS GUARANTEE WITH THE INTENTION OF EXECUTING AND DELIVERING THIS GUARANTEE AS A DEED.

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