1
THIS DEEDOF CHARGE OF RECEIVABLESOF CONSTRUCTION CONTRACTis made on the day of Two thousand and (20 ) by:
(1)[ ] (Registration No.: [ ]), a company incorporated in Singapore and having its registered office at [ ] (the "Company");
in favour of
(2)OVERSEA-CHINESE BANKING CORPORATION LIMITED of 65 Chulia Street #[09-00] OCBC Centre, Singapore 049513 (the "Bank").
BACKGROUND:
The Company enters into this Deed as security for the Secured Liabilities (as defined below).
IT IS AGREED as follows:-
1.INTERPRETATION
1.1Definitions
In this Deed:-
"Act" means the Conveyancing and Law of Property Act, Chapter 61 of Singapore.
"Contract" means:-
(a)the agreement made between the Company and the Debtor on [ ] in respect of [ ] (the "Project");
(b)all contract documents and agreements between the Company and the Debtor in relation to the Project;
(c)all invoices, delivery orders, delivery receipts, agreements, contracts, letters, acknowledgements, bonds, bills of exchange, promissory notes, negotiable instruments, sale orders and any instrument or document evidencing the indebtedness of the Debtor to the Company in relation to the Project or made in connection with or relating to the Project;
(d)any other document or arrangement designated as such by the Bank and the Company;
(e)as the same may from time to time be amended, varied, modified, substituted or supplemented.
"Debtor" means [ ].
"Default" means an Event of Default or an event which, with the giving of notice, lapse of time, determination of materiality or fulfilment of any other applicable condition (or any combination of the foregoing), would constitute an Event of Default.
"Event of Default" means an event specified as such in Clause 6.1 (Event of Default).
"Facilities" means all banking, credit and/or other facilities from time to time made or to be made available by the Bank to the Company.
"Finance Documents" means the Security Documents, all of the Bank's facility letters, standard form documents (whether or not executed by the Company) and any other agreement or document made pursuant to or in connection with the Facilities.
"Financial Indebtedness" means any indebtedness in respect of:-
(a)moneys borrowed;
(b)any debenture, bond, note, loan stock or other security;
(c)any acceptance or documentary credit;
(d)receivables sold or discounted (otherwise than on a non-recourse basis);
(e)the acquisition cost of any asset to the extent payable before or after the time of acquisition or possession by the party liable where the advance or deferred payment is arranged primarily as a method of raising finance or financing the acquisition of that asset;
(f)any lease entered into primarily as a method of raising finance or financing the acquisition of the asset leased;
(g)any currency swap or interest swap, cap or collar arrangement or any other derivative instrument;
(h)any amount raised under any other transaction having the commercial effect of a borrowing or raising of money; or
(i)any guarantee, indemnity or similar assurance against financial loss of any person.
"Group" means the Company and its Related Corporations.
"Obligor" means the Company or any person (other than the Company and the Bank) who is a party to the Security Documents.
"Receivables" means all book and other debts, the proceeds of the same and all other moneys due and owing to the Company, arising from or in connection with the Contract.
"Receipts Account" means the non-checking account number [ ] opened and maintained or to be maintained with the Bank in the name of the Company or such other non-checking account(s) opened and maintained with the Bank in the name of the Company into which the proceeds of the Security Assets are paid.
"Receiver" means a receiver and manager or (if the Bank so specifies in the relevant appointment) a receiver, in either case, appointed under this Deed.
"Related Corporation" means a related corporation within the meaning of Section 6 of the Companies Act, Chapter 50 of Singapore.
"Secured Liabilities" means:-
(a)all present and future obligations and liabilities (whether actual or contingent and whether owed jointly or severally or in any other capacity whatsoever) of:-
(i)the Company to the Bank (including without limitation, the obligations and liabilities under the Finance Documents and the Facilities);
(ii)each Obligor (other than the Company) to the Bank under the Finance Documents to which such Obligor is a party; and
(b)all costs and expenses (including all goods and services, value added and other duties or taxes payable in such costs and expenses) incurred by the Bank in connection with the enforcement of, or the preservation of, its rights against the Obligors.
"Security Assets" means all assets of the Company the subject of any security created by this Deed.
"Security Documents" means this Deed and all other documents (including subordination deeds / agreements, guarantees, indemnities, letters of undertaking or comfort letters) executed by the Company or any third party as security for the Secured Liabilities.
"Security Interest" means any mortgage, pledge, lien, charge, assignment, hypothecation or security interest or any other agreement or arrangement having the effect of conferring security.
"Security Period" means the period beginning on the date of this Deed and ending on the date on which the Bank is satisfied that all the Secured Liabilities have been unconditionally and irrevocably paid and discharged in full and the Facilities are no longer available to the Company.
1.2Construction
(a)In this Deed, unless the contrary intention appears, a reference to:-
(i)"assets" includes the whole or any part of, present and future properties, revenues and rights of every description;
(ii)an "authorization" includes an authorization, consent, approval, resolution, licence, exemption, filing, registration or notarization;
(iii)a "material adverse effect" means:-
(A)a material adverse effect on the business, operations or financial condition of the Company or any member of the Group or the Group as a whole; or
(B)a material adverse effect on the ability of any Obligor to perform its obligations under any of the Finance Documents;
(iv)a "person" includes any individual, company, unincorporated association or body of persons (including a partnership, joint venture or consortium), government, state, agency, international organisation or other entity and any reference to a person includes its personal representative, successors, transferees or assigns (as the case may be);
(v)a "regulation" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, inter-governmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;
(vi)a provision of law is a reference to that provision as amended or re-enacted;
(vii)a Clause is a reference to a clause to this Deed;
(viii)a Finance Document, Contract or another document is a reference to that Finance Document, Contract or other document as amended, varied, modified, substituted or supplemented;
(ix)a time of day is a reference to Singapore time;
(x)words importing the singular number include the plural number, and vice versa; and
(xi)words importing one gender shall include all other genders.
(b)Unless the contrary intention appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Deed.
(c)The index to and the headings in this Deed are for convenience only and are to be ignored in construing this Deed.
(d)The term "Secured Liabilities" includes liabilities which would be treated as such but for the liquidation, dissolution or judicial management of, or similar event affecting an Obligor.
(e)Unless the context otherwise requires, a reference to a Security Asset includes the proceeds of sale of that Security Asset.
(f)Any covenant of the Company under this Deed (other than a payment obligation) remains in force during the Security Period.
(g)If the Bank considers that an amount paid by an Obligor under a Finance Document is capable of being avoided or otherwise set aside on the liquidation, bankruptcy, administration or judicial management of that Obligor or otherwise, then that amount shall not be considered to have been irrevocably paid for the purposes of this Deed.
(h)A person who is not a party to this Deed may not enforce any of its terms under the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore (unless expressly provided otherwise in this Deed) and notwithstanding any term of this Deed, the consent of any third party is not required for any variation (including any release or compromise of any liability) or termination of this Deed.
2.CHARGE
2.1Charge on Contract and Receivables
The Company as continuing security for the payment of all the Secured Liabilities, charges and agrees to charge to the Bank, by way of a first fixed charge, all of the Company's rights, benefits, interests and titles under, in and to the Contract, the Receivables and the benefit of all rights, securities and guarantees of any nature enjoyed or held by it in relation to any of the foregoing.
2.2Charge on Receipts Account
The Company as continuing security for the payment of all the Secured Liabilities, charges and agrees to charge to the Bank, by way of a first fixed charge, all monies (including interest) from time to time standing to the credit of the Receipts Account and the debt represented thereby.
2.3Miscellaneous
Without prejudice to Clause 2.2 above, if, pursuant to Clause 5, the Company is entitled to withdraw the proceeds of any Receivables standing to the credit of the Receipts Account and, as a result, those proceeds are in any way released from the fixed charge created pursuant to Clause 2.1 above and stand subject to a floating charge, the release will in no way derogate from the subsistence and continuance of the fixed charge on all other Receivables and the proceeds of those Receivables.
3.REPRESENTATIONS AND WARRANTIES
3.1Representations and warranties
The Company makes the representations and warranties set out in this Clause 3 to the Bank.
3.2Status
(a)The Company is a [private] company limited by shares, duly incorporated and validly existing under the laws of the jurisdiction of Singapore; and
(b)Each member of the Group has the power to own its assets and carry on its business as it is being conducted.
3.3Powers and Authority
The Company has the power to enter into and perform, and has taken all necessary action to authorize the entry into, performance and delivery of, this Deed and the transactions contemplated by this Deed.
3.4Legal Validity
This Deed constitutes its valid, legally binding and enforceable obligations.
3.5Authorizations
All authorizations required or advisable in connection with the entry into, performance, validity and enforceability of, and the transactions contemplated by, this Deed have been obtained or effected and are in full force and effect.
3.6Pari passu ranking
The obligations of each Obligor under the Finance Documents to which it is a party, rank and will rank at least pari passu with all its other unsecured obligations.
3.7Taxes on payments
All amounts payable by each Obligor under the Finance Documents to which it is a party may be made free and clear of and without deduction for or on account of any tax.
3.8Immunity
The execution by each Obligor of each Finance Document to which it is a party constitutes, and its exercise of its rights and performance of its obligations under each Finance Document will constitute, private and commercial acts done and performed for private and commercial purposes.
3.9Non-conflict
The entry into and performance by it of, and the transactions contemplated by, this Deed do not and will not:-
(a)conflict with any law or regulation or judicial or official order; or
(b)conflict with the constitutional documents of the Company; or
(c)conflict with any document which is binding upon the Company or any asset of the Company.
3.10No default
(a)No Default is outstanding or might result from entering into any Finance Document or granting of the Facilities; and
(b)No other event is outstanding which constitutes (or with the giving of notice, lapse of time, determination of materiality or the fulfilment of any other applicable condition or any combination of the foregoing, might constitute) a default under any document which is binding on any Obligor or any asset of any Obligor to an extent or in a manner which might have a material adverse effect.
3.11Litigation
No litigation, arbitration, legal proceeding, suit or action of any kind whatsoever (whether criminal or civil) are current or, to its knowledge, pending or threatened, which might, if adversely determined, have a material adverse effect.
3.12Accounts
The audited consolidated accounts of the Group most recently delivered to the Bank:-
(a)have been prepared in accordance with accounting principles and practices generally accepted in Singapore, consistently applied; and
(b)fairly represent the consolidated financial condition of the Group as at the date to which they were drawn up,
and there has been no material adverse change in the financial condition of the Group since the date to which those accounts were drawn up.
3.13Security
This Deed creates those Security Interests it purports to create and is not liable to be avoided or otherwise set aside on the liquidation or judicial management of the Company or otherwise.
3.14Security Assets
(a)The Company is the legal and beneficial owner of the Security Assets.
(b)Each of the Security Assets, and the debt represented by them is free from:-
(i)any Security Interest (other than any Security Interest created by this Deed); and
(ii)any interests or claims of third parties.
3.15Constitutive documents
The certified true copies of the Memorandum and Articles of Association and the board resolutions of the Company delivered to the Bank are true and accurate copies of its corporate records.
3.16Information
(a)All information and documents given by the Company to the Bank are true, complete and accurate in all respects as at the date they were given;
(b)The Company did not omit any information or any documents which, if disclosed, might adversely affect the decision of a person considering whether to enter into this Deed; and
(c)As at the date of this Deed, nothing has occurred which renders any information or documents given by the Company to the Bank to be untrue or misleading in any respect and which, if disclosed, might adversely affect the decision of a person considering whether to enter into this Deed.
3.17Contract
(a)Payments by parties to the Contract are not subject to rights of set-off or similar rights.
(b)The Contract is the legal, valid and binding obligation of each party to it.
(c)The Company is not in default of any of its obligations under the Contract.
(d)The Contract does not contain any provision which would prohibit or restrict in any manner whatsoever any assignment, transfer or other disposition of the Company’s rights and/or interests thereunder.
3.18Times for making representations and warranties
The representations and warranties set out in this Clause 3 are made on the date of this Deed and are deemed to be repeated by the Company on each date during the Security Period with reference to the facts and circumstances then existing.
4.GENERAL UNDERTAKINGS
4.1Duration
The undertakings in this Clause 4 remain in force throughout the Security Period.
4.2Financial information
The Company shall supply, and shall procure that each Obligor will, supply to the Bank:-
(a)annually as soon as possible and in any event not later than 120 days after the close of its financial year the audited financial statements of the Company and such Obligor and the audited consolidated financial statements of the Company and such Obligor and their Related Corporations, in each case consisting of a balance sheet as of the close of such financial year and a statement of its profit and loss for the period then ended in accordance with generally accepted accounting practices and principles consistently applied and signed by its auditors, such auditors to be acceptable to the Bank; and
(b)semi-annually as soon as possible and in any event not later than 90 days after the close of the first 6 months of its financial year the unaudited financial statements of the Company and such Obligor, in each case consisting of a balance sheet as of the close of the first 6 months of such financial year and a statement of its profits and loss for the period then ended in accordance with generally accepted accounting practices and principles consistently applied.
4.3Information - miscellaneous
The Company shall supply, and shall procure that each Obligor will, supply to the Bank:-
(a)all documents despatched by the Company or an Obligor to their respective shareholders (or any class of them) or its creditors generally at the same time as they are despatched;
(b)promptly upon becoming aware of them, details of any litigation, arbitration, legal proceeding, suit or action of any kind whatsoever (whether criminal or civil) are current, threatened or pending, and which might, if adversely determined, have a material adverse effect;
(c)promptly, such further information in its possession or control regarding the financial conditions and operations of an Obligor as the Bank may request;
(d)promptly, a monthly report on the construction progress of the Project;
(e)particulars of any kind of immovable property hereafter acquired by the Company or such Obligor; and
(f)such other reports which may be requested by the Bank from time to time.
4.4Compliance certificates
The Company shall supply to the Bank:-
(a)together with the accounts specified in Clause 4.2 (Financial information); and
(b)promptly at any other time, if the Bank so requests,
a certificate signed by any of its directors on its behalf certifying that no Default is outstanding or, if a Default is outstanding, specifying the Default and the steps, if any, being taken to remedy it.
4.5Maintenance of status
The Company shall and shall procure that each Obligor:-
(a)do all such things as are necessary to maintain its corporate existence; and
(b)ensure that it has the right and is duly qualified to conduct its business as it is conducted in all applicable jurisdictions.
4.6Conduct of Business
The Company shall carry on and conduct its business and affairs in a proper and efficient manner in accordance with sound technical, financial, industrial and managerial standards and practices with qualified personnel and in accordance with its Memorandum and Articles of Association.