(hereinafter *collectively called "the Assignor") of the one part; and. (hereinafter *collectively called "the Borrower") of the second part; and

Transcription

1 THIS ASSIGNMENT is made the day of Two thousand and (200 ) Between:- (1) (2) (hereinafter *collectively called "the Assignor") of the one part; and (hereinafter *collectively called "the Borrower") of the second part; and (3) OVERSEA-CHINESE BANKING CORPORATION LIMITED a company incorporated in the Republic of Singapore and having its registered office at 65 Chulia Street #26-00 OCBC Centre, Singapore (hereinafter called "the Bank") of the third part. WHEREAS:- (1) The Borrower has obtained a Bridging Loan (hereinafter called "the Bridging Loan") from the Bank on the terms of the Bank's Letter of Offer dated the day of as revised amended superceded or supplemented from time to time (hereinafter called the Letter of Offer ) and has agreed with the Bank to secure the Secured Amounts (as hereinafter defined) by an assignment of the proceeds of sale of the property more particularly described in the First Schedule hereto (hereinafter called "the Property"). With title - HDB/ Non HDB Without title - HDB Without Title - Non HDB Sale and Purchase Agreement *(2) The Assignor is the registered proprietor of the Property. *(2) The Assignor is the purchaser of the Property by virtue of a Sale and Purchase Agreement dated the day of made between the HOUSING AND DEVELOPMENT BOARD and the Assignor. / The Assignor is the lessee of the Property by virtue of the Agreement for Lease dated the day of made between the HOUSING AND DEVELOPMENT BOARD and the Assignor. *(2) The Assignor is the purchaser of the Property by virtue of a Sale and Purchase Agreement dated the day of made between and the Assignor. *(3) By a sale and purchase agreement dated the day of made between the Assignor and (hereinafter *collectively called "the Purchaser ), on the day of (hereinafter called "the Sale Agreement"), the Assignor has agreed to sell and the Purchaser has agreed to purchase the Property. Option *(3) By an Option dated the day of and granted by the Assignor to (hereinafter *collectively called the Purchaser ) and duly exercised by the Purchaser on the day of (the duly exercised Option hereinafter called the Sale Agreement ), the Assignor has agreed to sell and the Purchaser has agreed to purchase the Property. (4) The Assignor is now desirous of assigning to the Bank the proceeds of sale realised or to be realised upon the sale of the Property (hereinafter called "the Sale Proceeds"), as a

2 2 continuing security for the payment and discharge of the Secured Amounts. NOW THIS DEED WITNESSETH as follows:- 1. INTERPRETATION AND DEFINITION (1) In this Deed, unless the context otherwise requires, the following word or expression shall have the following meaning respectively:- Secured Amounts means all amounts (whether of principal, interest, commission, fees, charges and contingent liabilities or otherwise) now or at any time hereafter due or owing from the Borrower to the Bank in respect of the Bridging Loan. (2) Where two or more persons are included in the expression "the Assignor" or the Borrower, all covenants, stipulations and provisions contained herein shall be deemed to be made by and to apply to and be binding upon all such persons jointly and severally and the term "the Assignor" or the Borrower shall include their legal personal representatives. (3) The expression the Bank shall include the successors and assigns of the Bank. (4) All covenants stipulations and provisions herein contained expressed to be made by the Assignor and the Borrower or concerning them or either of them shall be deemed to be made by and to apply to and be binding upon them jointly and severally. (5) The headings in this Deed are inserted for convenience only and shall be ignored in construing this Deed. Unless the context otherwise requires, words denoting the singular number only shall include the plural and vice versa. References to "Clauses" and "Schedules" are to be construed as references to Clauses of and Schedules to this Deed. (6) Where in this Deed reference is made to any statute or any provision thereof, that reference shall be construed as a reference to that statute or the corresponding provision of that statute as amended or re-enacted or renumbered from time to time. 2. THE ASSIGNMENT assigning all sale proceeds In consideration of the premises, the Assignor HEREBY ASSIGNS unto the Bank all the Assignor's rights, title, interests, benefits, advantages, permits, licences and remedies which the Assignor may have in under or arising out of the Sale Agreement including all the Sale Proceeds thereof and other monies payable or to become payable thereunder as a continuing security for the payment of the Secured Amounts PROVIDED ALWAYS that upon payment to the Bank in full of the Secured Amounts and the Assignor and/or the Borrower having duly complied with all of the Assignor's and/or the Borrower s respective undertakings covenants and obligations made given and entered into with the Bank pursuant to the terms of this Deed and the Letter of Offer, the Bank will at the request and expense of the Assignor and/or the Borrower re-assign to the Assignor the rights, title, interest and benefits hereby assigned, or will otherwise discharge or cancel the security hereby created. 3. CONTINUING SECURITY The security created by this Deed shall constitute and be a continuing security for the

3 3 payment and discharge of the Secured Amounts notwithstanding any settlement of account or reduction or repayment of or variation or change in the terms relating to the Bridging Loan or any collateral or other security from time to time held or any other matter or thing whatsoever, and shall be in addition to and shall not be in any way prejudiced or affected by any such collateral or other security or judgment or order obtained by the Bank for all or any part of the Secured Amounts nor shall any such collateral or other security, judgment or order or any lien to which the Bank may be otherwise entitled or the liability of the Assignor and/or Borrower or any others not parties hereto for all or any part of the Secured Amounts be in any way prejudiced or affected by this Deed. 4. REPRESENTATIONS AND WARRANTIES (1) The Assignor hereby represents and warrants to and for the benefit of the Bank as follows:- (a) (b) (c) that the Assignor is the sole and beneficial owner of the Property and the Sale Proceeds; that the Sale Agreement constitutes valid, binding and enforceable obligations of the Assignor; that the Assignor will not assign charge or otherwise encumber the Assignor's rights title interest and benefits in the Sale Agreement. (2) The Assignor warrants to and for the benefit of the Bank that each of the warranties in Clause 4(1) made by the Assignor will be correct and complied with in all respects at all times during the continuance of this Deed as if repeated then by reference to the then existing circumstances. 5. UNDERTAKINGS The Assignor and the Borrower hereby undertake jointly and severally to the Bank as follows:- (1) forthwith upon the execution of this Deed to give notice of this Assignment to the Purchaser in the form of the Second Schedule and procure that the Purchaser acknowledges such notice of assignment in the form of the Third Schedule; (2) save as provided in this Deed, not to (and not to agree, conditionally or unconditionally, to) sell, assign, transfer, charge or otherwise dispose of the Assignor's rights, title, interest, benefits, advantages, permits, licences and remedies in the Sale Agreement; (3) to take all steps necessary or advisable to secure the due performance by the Purchaser of the Purchaser's obligations under the Sale Agreement; (4) to promptly and diligently perform and comply with the Assignor's obligations contained in the Sale Agreement and institute and prosecute all such proceedings as may be necessary or advisable to preserve or protect the Assignor's interest in the Sale Agreement; (5) from time to time at the request of the Bank, the Assignor and/or the Borrower

4 4 will execute and deliver promptly and duly to the Bank any such further instruments or documents, and to do any act or thing, as the Bank may require or which are required by law, for the purpose of perfecting the security created by this Deed and of obtaining the full benefit of this Deed and of the rights and powers hereby granted; (6) not to make or agree to any amendment, cancellation, termination or repudiation of any of the terms, covenants and conditions of the Sale Agreement or release the Purchaser from its obligations under the Sale Agreement or exercise any rights or powers of termination under the Sale Agreement or waive any breach of the Sale Agreement; (7) to ensure that all sums of money hereby assigned or to be assigned to the Bank shall forthwith be paid to the Bank or as the Bank may direct. Pending payment of such sums of money to the Bank or as may be directed by the Bank, the Assignor and/or the Borrower shall hold all such sums of money as trustee upon trust for the Bank absolutely; (8) not to take or omit to take any action, the taking or omission of which may render the Sale Agreement invalid or result in any cancellation, termination or repudiation of any of the terms, covenants and conditions of the Sale Agreement or take any steps which is in the opinion of the Bank adverse to the interest of the Bank under this Deed; (9) not to exercise at any time, any right or power conferred on the Assignor by the Sale Agreement in any manner which in the opinion of the Bank has a material adverse effect on the financial position of the Assignor under this Deed; (10) to do or permit to be done each and every act or thing which the Bank may from time to time require to be done for the purpose of enforcing the rights of the Bank under this Deed and will allow the Assignor's and/or the Borrower s name to be used as and when required by the Bank for that purpose. 6. CONTINUING OBLIGATIONS It is further agreed and declared that notwithstanding this Deed:- (1) the Assignor shall remain fully liable to perform all the Assignor's obligations assumed under the Sale Agreement and the Bank shall be under no obligation of any kind whatsoever under the Sale Agreement or be under any liability whatsoever in the event of any failure by the Assignor to perform the Assignor's obligations thereunder; and (2) the Bank shall not be obliged to assume or be under any obligation in any manner to perform or fulfil any obligations of the Assignor under or pursuant to the Sale Agreement, to enforce any term, covenant or condition of the Sale Agreement or to make any inquiry as to the nature or sufficiency of any payment received under or pursuant to the Sale Agreement. 7. INDEMNITY The Bank shall be indemnified by the Assignor and the Borrower from and against all actions, losses, claims, proceedings, costs, demands and liabilities which may be suffered by the Bank by reason of any failure of the Assignor and/or the Borrower to perform any of

5 5 the Assignor's and/or the Borrower s obligations under the Sale Agreement or this Deed or in the execution or purported execution by the Bank of any of the rights, powers, remedies, authorities or discretions vested in the Bank under or pursuant to this Deed. 8. FURTHER ASSURANCE The Assignor shall at the Assignor's own expense execute and do all such assurances, acts and things as the Bank may reasonably require for perfecting or protecting this security or any part thereof or for facilitating the sale or realisation of the Property and the exercise of all powers, authorities and discretions vested in the Bank and shall in particular execute all transfers, conveyances, assignments and assurances of the Property and give all notices, orders and directions which the Bank may think expedient. For the purposes of this Clause a certificate in writing by the Bank to the effect that any particular assurance, act or thing required by it is reasonably required shall be conclusive evidence of such fact. 9. POWER OF ATTORNEY (1) For the purpose of giving effect to the provisions of this Deed, the Assignor and/or the Borrower hereby appoints jointly and severally the Bank and the persons deriving title under the Bank and the Bank's substitute or any person nominated by the Bank under the hand of any Executive Vice President or Senior Vice President or Vice President or Assistant Vice President Secretary or Accountant or any other officer for the time being of the Bank to be the Assignor's and/or the Borrower s attorney and in the names or name and on behalf of the Assignor and/or the Borrower to do and execute all acts, things and deeds for perfecting or protecting this security or any part thereof or for facilitating the sale or realisation of the Property and the exercise of all powers, authorities and discretions vested in the Bank including without prejudice to the generality thereof, the following acts, things and deeds:- (a) (b) (c) (d) to execute, sign, seal, deliver and otherwise perfect an assignment or assignments to the Bank of the Assignor s benefits, rights, title and interests in or under the Sale Agreement including all deposits or any monies payable or to become payable thereunder; to execute and/or deliver the notices of assignment referred to herein to the Purchaser; to complete the sale of the Property to the Purchaser under the Sale Agreement; to demand, receive, sue for, recover and take all appropriate legal proceedings or actions to recover all monies from time to time due and payable under the Sale Agreement and to give good receipts and discharges therefor; (e) to sign, seal, execute and deliver all instruments, deeds, assurance and documents and generally to do all or any other acts and things which are necessary for or incidental to all or any of the purposes aforesaid; and the Assignor and/or the Borrower hereby declares that all deeds instruments and documents executed on behalf of the Assignor and/or the Borrower by the Bank or any servant agent or any persons nominated by the Bank as aforesaid by virtue of the

6 6 provisions of this Deed shall be as good valid and effectual to all intents and purposes whatsoever as if the same had been duly and properly executed by the Assignor and/or the Borrower and the Assignor and/or the Borrower hereby undertakes to ratify and confirm all such deeds instruments and documents executed by virtue of the authorities and the powers hereby conferred. (2) The Assignor and/or the Borrower hereby further declares that the powers and authority hereby conferred are given for valuable consideration and shall be and remain irrevocable until payment and discharge of the Secured Amounts. 10. CONSOLIDATION (1) The provisions of Section 21(1) and 25 of the Conveyancing and Law of Property Act (Cap 61) shall not apply to this Deed. (2) No assurance, security or payment which may be avoided under the provisions of the Bankruptcy Act (Cap 20) and the Companies Act (Cap 50) relating to unfair or fraudulent preference and no release, settlement or discharge which may have been given or made on the faith of any such assurance, security or payment shall prejudice the Bank s right to recover from the Assignor and/or the Borrower to the full extent of this Deed as if such assurance, security, payment, release, settlement or discharge (as the case may be) had never been granted, given or made. 11. ASSIGNMENT (1) This Deed shall benefit and be binding on the parties, their respective successors and subject to the provisions of this Clause, any permitted assign of some or all of the Bank's rights or obligations under this Deed. All undertakings, agreements, representations and warranties given, made or entered into by the Assignor and/or the Borrower under this Deed shall survive the making of any assignments hereunder. (2) The Bank may assign all or any of its rights, title and interest in and to, or transfer all or part of its obligations hereunder without the consent of the Assignor and/or the Borrower. The Assignor and/or the Borrower hereby irrevocably appoints each of the successors and assigns of the Bank to be its attorney in the same terms and for the same purposes set out in the relevant provisions hereunder. (3) The Assignor and/or the Borrower shall have no right to assign or transfer any of the Assignor's and/or the Borrower s rights hereunder and the Assignor and/or the Borrower shall remain fully liable for all of the Assignor's and/or the Borrower s undertakings, agreements, duties, liabilities and obligations hereunder, and for the due and punctual observance and performance thereof. 12. DISCLOSURE (1) The Assignor and/or the Borrower irrevocably and unconditionally consent to the Bank and any officer (as defined in the Banking Act (Cap 19) ("the Banking Act")) of the Bank to disclose any customer information (as defined in the Banking Act) relating to the Assignor and/or the Borrower or any information whatsoever

7 7 relating to the Assignor and/or the Borrower as the Bank shall consider appropriate (including without limitation, details of the Property and the particulars relating to the Bridging Loan (where applicable)) to the HDB, any person to whom disclosure is permitted or required by any statutory provision or law or to any other person wherever situate for any purpose whatsoever and it is hereby agreed that the Bank and any officer of the Bank may disclose the foregoing information to the fullest extent permitted by the Banking Act or any other statutory provision or law. Without prejudice to the foregoing, the Assignor and/or the Borrower consents to such disclosure to any credit bureau or any other organisation or corporation set up for the purpose of collecting and providing information relating to the credit standing of persons, and to the disclosure by such credit bureau or other organisation or corporation to any member thereof, for the purposes of assessing the Assignor's and/or the Borrower s credit worthiness or for any other purpose whatsoever. (2) The rights conferred on the Bank herein shall be in addition to and shall not be in any way prejudiced or affected by any other agreement, express or implied, between the Assignor and/or the Borrower and the Bank in relation to any information referred to herein nor shall any such other agreement be in any way prejudiced or affected by any provision herein. This consent and provision shall survive the termination of any or all of the Assignor's and/or the Borrower s accounts or facilities with the Bank, and/or the termination of any relationship between the Assignor and/or the Borrower and the Bank, for any reason whatsoever. 13. NOTICES (1) All notices, demands or other communications to or upon the Assignor and/or the Borrower shall be in writing and shall be personally delivered or sent by telex, facsimile or pre-paid post addressed to the party to be notified and forwarded to:- (a) (b) (c) (d) (e) the address of the Assignor and/or the Borrower as shown in this Deed or, where a new address has been notified in writing to the Bank, that new address; in the case of a corporation, its registered office; the address of any property comprising the Property; the Assignor s and/or the Borrower s last known place of business or abode in Singapore; or the Assignor s and/or the Borrower s then published telex or facsimile number, or the last such number advised to the Bank by the Assignor and/or the Borrower in writing. (2) A communication sent by mail shall be deemed to have been received by the Assignor and/or the Borrower on the second day after posting (excluding days on which no mail deliveries are normally made) notwithstanding that it may be returned by the post office undelivered. (3) A communication sent by facsimile shall be deemed to have been received by the Assignor and/or the Borrower at the time of despatch.

8 8 (4) If the Assignor and/or the Borrower is more than one person the service of a notice or demand on any such person shall be deemed to be service upon all such persons. (5) A statement signed by a duly authorised officer of the Bank stating the date upon which any demand or notice was posted shall in the absence of manifest error be prima facie evidence of the date upon which that demand or notice was posted. (6) Notices, certificates, and other correspondences in connection herewith required to be sent or given to the Bank shall be sent to the Bank s address specified in this Deed (or to such other address as may from time to time be given by the Bank to the Assignor and/or the Borrower for the purpose). Any such notice shall be deemed to have been given, sent, served or received at the time of acknowledgement of receipt by a duly authorised officer of the Bank. 14. PARTIAL INVALIDITY If any one or more of the provisions contained in this Deed shall be deemed invalid, unlawful or unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired. 15. REMEDIES AND WAIVERS No failure on the part of the Bank to exercise, and no delay in exercising, any right or remedy under this Deed will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy under this Deed preclude any other or further exercise thereof or of the exercise of any other right. The rights and remedies in this Deed provided are cumulative and not exclusive of any rights or remedies provided by law. Any waiver or consent given by the Bank under this Deed shall be in writing and may be given subject to such conditions as the Bank may impose. Any waiver or consent shall be effective only in the instance and for the purpose for which it is given. 16. COST AND EXPENSES The Assignor and/or the Borrower forthwith or when called upon shall pay:- (1) all reasonable costs fees expenses and other charges legal or otherwise including stamp duty and the Bank's solicitors' costs of or connected with the preparation execution of these presents and this Deed and the preparation, completion and lodging of a caveat and other documents required by the Bank; (2) all reasonable legal fees on a full indemnity basis and other costs and disbursements incurred in connection with demanding and enforcing payment of any monies due hereunder or under this Deed or otherwise howsoever in enforcing this security and/or any of the covenants undertakings stipulations terms conditions or provisions herein contained; and If the Assignor and/or the Borrower shall neglect refuse or fail to make the above payments it shall be lawful for the Bank to make such payments and all monies expended by the Bank under this provision shall be deemed to be properly paid or incurred by the

9 9 Bank and until repayment by the Assignor and/or the Borrower be added to the Secured Amounts and bear interest accordingly at the rate as determined by the Bank from time to time in its absolute discretion and stand charged under this Deed. 17. CONTRACT (RIGHTS OF THIRD PARTIES) ACT A person who is not a party to this Deed shall have no rights under the Contracts (Rights of Third Parties) Act (Cap 53B) to enforce any of its terms. 18. GOVERNING LAW This Deed shall be governed by and construed in accordance with the laws of the Republic of Singapore and the parties hereto shall and do hereby submit to the nonexclusive jurisdiction of the courts of the Republic of Singapore PROVIDED ALWAYS that submission to the jurisdiction of the courts of the Republic of Singapore shall not preclude the Bank from commencing proceedings in the courts of any other country. 19. TAXES Without prejudice to the foregoing and the other provisions of this Deed and all other deeds and documents related hereto, the Assignor and/or the Borrower shall pay all rates, taxes, duties, levies, charges, impost and assessments (hereinafter collectively referred to as "the Taxes") including but not limited to any goods and services tax, value-added tax, consumption tax or such other taxes of whatever name called, whatsoever imposed charged or levied in respect of, or on any payments and sums due and payable in respect of, the Property or under this Deed including but not limited to sums paid or payable to the Bank. The Bank shall be entitled but not obliged or required to pay the Taxes upon the Assignor's and/or the Borrower s default or failure to pay the same and the Assignor and/or the Borrower shall forthwith upon demand pay to the Bank a sum equivalent to the Taxes so paid by the Bank together with interest thereon at such rate as the Bank shall at its sole discretion deem fit from the date of payment of the Taxes by the Bank to the date of repayment by the Assignor and/or the Borrower. Any such sum remaining unpaid and interest thereon shall be added to and deemed part of the Secured Amounts until repayment of the same by the Assignor and/or the Borrower. IN WITNESS WHEREOF the Assignor and the Borrower have hereunto set *his/her/their respective hand(s) and seal(s). THE FIRST SCHEDULE ABOVE REFERRED TO

10 10 THE SECOND SCHEDULE ABOVE REFERRED TO NOTICE OF ASSIGNMENT Date: From:

11 11 To: [Purchaser] [Address] Dear Sir/s, SALE AND PURCHASE OF [ ] I/We refer to the Sale and Purchase Agreement/Option dated [ ] (hereinafter referred to as the Sale Agreement ) in relation to the above property. I/We hereby give you notice that by an assignment dated [ ] made between myself/ourselves and OVERSEA-CHINESE BANKING CORPORATION LIMITED, I/we have assigned to OVERSEA-CHINESE BANKING CORPORATION LIMITED all my/our rights, title, interests and benefits under the Sale Agreement (including, but without prejudice, all monies (if any) from time to time payable under the Sale Agreement by you). I/We hereby irrevocably authorise and instruct you to pay to OVERSEA-CHINESE BANKING CORPORATION LIMITED all monies now or at any time due owing or payable to me/us under or by virtue of the Sale Agreement. This notice and the instructions herein contained are irrevocable and may not be modified or varied without the consent in writing of OVERSEA-CHINESE BANKING CORPORATION LIMITED. Yours faithfully cc. OVERSEA-CHINESE BANKING CORPORATION LIMITED THE THIRD SCHEDULE ABOVE REFERRED TO ACKNOWLEDGEMENT OF NOTICE FROM PURCHASER Date:

12 12 From: [Purchaser] [Address] To: Oversea-Chinese Banking Corporation Limited 65 Chulia Street #29-00 OCBC Centre Singapore Dear Sir/s RE: [ ] I/We acknowledge receipt of a notice of assignment dated [ ] from [ ] in respect of the above property in favour of yourself/yourselves and confirm that I/we will comply with the directions to me/us therein contained. Yours faithfully... [Purchaser] SIGNED SEALED and DELIVERED ) by the Assignor ) in the presence of:- )

13 13 On this day of A.D. 200 before me, an Advocate and Solicitor of the Supreme Court of the Republic of Singapore practising in Singapore personally appeared who of my own personal knowledge I know to be the identical person/s whose name/s " " and " " *respectively is/are subscribed to the within written instrument and acknowledged that he/she/they had voluntarily executed this instrument at Singapore. Witness my hand.

14 14 SIGNED SEALED and DELIVERED ) by the Borrower ) in the presence of:- ) On this day of A.D. 200 before me, an Advocate and Solicitor of the Supreme Court of the Republic of Singapore practising in Singapore personally appeared who of my own personal knowledge I know to be the identical person/s whose name/s " " and " " *respectively is/are subscribed to the within written instrument and acknowledged that he/she/they had voluntarily executed this instrument at Singapore. Witness my hand.

15 DATED THE DAY OF Between ("the Assignor") And ("the Borrower") And OVERSEA-CHINESE BANKING CORPORATION LIMITED ("the Bank") ASSIGNMENT OF SALE PROCEEDS 25 June 2009