MEMORANDUM OF CHARGE/ASSIGNMENT (FIRST PARTY)
TO: OVERSEA-CHINESE BANKING CORPORATION LIMITED
1. In consideration of OVERSEA-CHINESE BANKING CORPORATION LIMITED (hereinafter called "the Bank" which expression shall include the Bank's successors and assigns) agreeing at my/our request and for my/our benefit to grant and/or continue to grant time, make advances or otherwise give credit or afford banking facilities or other financial accommodation through any branches of the Bank anywhere in the world, including, without limitation, the issue, negotiation, discounting, acceptance, endorsement or collection by the Bank of bills of exchange or the issue or establishment by the Bank of bonds, guarantees standby letters of credit, letters of credit and other documentary credits and/or reorganise, release and/or restructure the securities, pledges and/or other collateral now held by the Bank as security for my/our liabilities to the Bank whether solely or jointly with any other person, I/we, ___________________________________________ ____________________________________________________________________________________ of ______________________________________________________________________________________ ______________________________________________________________________________________ (hereinafter called “the Depositor" which expression shall include the Depositor's personal representatives and successors in title) HEREBY CHARGE BY WAY OF FIRST FIXED CHARGE AND/OR ASSIGN, the Mortgaged Securities (as defined in Clause 35) to the Bank as continuing security for the payment and satisfaction on demand to the Bank of all and every sum or sums of moneys and liabilities, absolute or contingent which are now or shall at any time hereafter be due, owing or incurred to the Bank by the Depositor anywhere on the Depositor's current account or any other account whether from the Depositor solely or jointly with any other person or persons or from any firm in which the Depositor may be a partner including the amount of notes or bills discounted or paid or other loans, credits or advances made to or for the accommodation or at the request either of the Depositor solely or jointly with any other person or persons to or for the accommodation or at the request of any such firm as aforesaid or any moneys for which the Depositor may be liable to the Bank or in any way whatsoever including interest at such rate or rates as may from time to time be fixed or determined by the Bank, as well before as after judgment from the date of demand to the date of repayment and commission, expenses and other banker's charges including legal costs on an indemnity basis and other costs and charges occasioned by or incidental to this or any other security held by or offered to the Bank for the same indebtedness or by or to the enforcement of any such security.
2. The Depositor hereby covenants that:
(a) the Depositor will at all times comply and adhere to all laws, regulations, rules, notices and orders relating to the Mortgaged Securities and pursuant thereto, the Depositor hereby authorises the Bank and its nominees (but the Bank and its nominees shall not be so obliged) to disclose to any relevant authority, such information about the Depositor and the Mortgaged Securities as the Bank or its nominees considers appropriate;
(b) where required by the Bank, the Depositor will instruct the Depository (as defined in Clause 35) in writing to transfer the Mortgaged Securities to the Account (as defined in clause 35) nominated by the Bank;
(c) the Depositor will on request by the Bank and at the Depositor's own cost, including stamp duty, charges, taxes and legal fees, execute and sign from time to time and procure the registered and/or beneficial owner(s) of the Mortgaged Securities to execute and sign from time to time all notices, transfers, powers of attorney and other documents which the Bank may require for perfecting the Bank's or its nominees' title to and/or interest in the Mortgaged Securities or any of them or vesting the same or any of them in any purchaser or in any trustee for or nominee of the Bank;
(d) the Depositor will on request by the Bank execute and sign from time to time notices in such form as the Bank may determine to notify any Operator (as defined in Clause 35) or such other person nominated by the Bank of the security interest over the Mortgaged Securities granted in favour of the Bank or its nominees and to instruct such Operator or person not to execute any transfer or document without the Bank's consent and, without limiting the generality of the foregoing, the Depositor shall execute and give the notice set out in Schedule I and shall procure that acknowledgement of that notice is given to the Bank in the form set out in Schedule II; and
(e) the Depositor will not, except in favour of the Bank or its nominees or with the Bank's prior written consent and in accordance with or subject to any conditions which the Bank may attach to such consent, assign, transfer or sell or otherwise dispose of or create, grant, extend or permit to subsist any mortgage or other fixed security or encumbrance or any floating charge on or over the Mortgaged Securities or any part thereof or interest therein or purport to do the same. The foregoing prohibition shall apply not only to mortgages, other fixed securities and encumbrances, floating charges, sales, transfers, assignments and other disposals which rank or purport to rank in point of security in priority to the security hereby constituted but also to any mortgages, other fixed securities and encumbrances, floating charges, sales, transfers, assignments and other disposals which rank or purport to rank pari passu therewith or thereafter.
3. The Depositor hereby warrants, and shall be deemed to warrant on each occasion any Mortgaged Security is first deposited with, or first comes into the possession of, or is made or purported to be made subject to any security interest in favour of the Bank or its nominees during the continuance of this security, that:-
(a) the Depositor is the beneficial owner of the Mortgaged Securities which are free from any prior charge or encumbrance of any sort whatsoever and that the Depositor will be beneficial owner of all the Mortgaged Securities, which may hereafter become subject to the terms hereof, which shall also be free from any prior charge or encumbrance of any sort whatsoever;
(b) this Memorandum has been duly executed and delivered and constitutes the legal, valid and binding obligations of the Depositor enforceable in accordance with its terms and all consents or approvaIs of any government, authority, agency or other entity required for the execution, delivery and performance of this Memorandum by the Depositor have been duly obtained and are in full force and effect;
(c) (save as disclosed in writing by the Depositor to the Bank prior to the date of this Memorandum) the Depositor has not sold or agreed to sell or otherwise disposed of or agreed to dispose of the Mortgaged Securities or any part thereof or interest therein;
(d) all the Mortgaged Securities for which the holder must subscribe or contribute capital are fully paid up;
(e) the transfers relating to the Mortgaged Securities forwarded or to be forwarded to the Bank or its nominees are validly executed and the Depositor irrevocably authorises the Bank or its nominees at any time to register the Mortgaged Securities for the purpose of vesting the full legal title to the Mortgaged Securities to and in the Bank or its nominees or any purchaser from the Bank; and
(f) any notices to any Operator or any Depository and any instructions authorising the transfer of the Mortgaged Securities forwarded or to be forwarded to any Depository are or will be validly executed and the Depositor irrevocably authorises the Bank at any time to execute the said notices and authorisations as the Depositor's attorney and on the Depositor's behalf (if the Depositor shall fail to do so) and to forward the same to the relevant Operator and/or Depository.
(g) the Depositor has the power and authority to own assets and to conduct the business which the Depositor conducts and/or purports to conduct. The Depositor further represents and warrants to the Bank that the Depositor has not acted and is not acting in contravention of any law which may result in third parties obtaining priority over the Bank in respect of the security granted herein or such security being illegal, unenforceable, altered, affected, discharged or revoked.
4. This security shall not be considered as discharged by any intermediate payment or satisfaction of the whole or any part of any sum or sums of money or liabilities owing as aforesaid but shall be a continuing security and shall extend to cover all or any sum or sums of money which shall for the time being constitute the balance due or owing from the Depositor to the Bank on any such account as hereinbefore mentioned and any outstanding liability of the Depositor to the Bank.
5. Any dividends, interest, bonus shares or other payments/distributions which may be received or receivable by the Bank or its nominees in respect of the Mortgaged Securities hereby charged and/or assigned may be retained by the Bank and held in suspense and if the Depositor shall fail to pay, further secure, or satisfy to the Bank on demand any moneys and liabilities hereby secured, the same may be applied by the Bank as though they were proceeds of sale hereunder notwithstanding that the power of sale may not have arisen and notwithstanding that subsequent to the execution of this Memorandum, the Bank or its nominees may have paid the said dividends, interest, bonus shares or other payments/distributions to the Depositor. Without prejudice to the rights and obligations hereby created any dividends, interest, bonus shares or other moneys hereby charged which may be received by the Depositor hereafter in respect of the Mortgaged Securities whether before or after the power of sale hereunder has arisen or been exercised shall be held in trust for the Bank and paid over to the Bank on demand.
6. The Bank and its nominees shall be entitled at any time or times hereafter during the continuance of this security without any notice to or any consent from or concurrence by the Depositor to sell the Mortgaged Securities in such manner and upon such terms and conditions generally as the Bank shall think fit and to apply the net proceeds of any such sale in or towards the discharge of moneys and liabilities hereby secured or at the Bank's discretion to hold them in suspense for whatever period the Bank may think necessary and the Bank shall not be liable to account as mortgagee in possession in respect of the Mortgaged Securities and shall not be responsible for any loss from or through any brokers or others employed in the sale of the Mortgaged Securities or for any loss or depreciation in value of any of such Mortgaged Securities arising from or through any cause whatsoever. The Bank may convert the net proceeds of any such sale into such other currency as the Bank considers necessary to cover the whole of any moneys and liabilities hereby secured in that currency at the then prevailing spot rate of exchange of the Bank (as may be determined by the Bank) for purchasing the currency to be acquired with the existing currency. In the event that the net proceeds of any such sale shall be insufficient to cover the whole of any moneys and liabilities hereby secured, the Depositor undertakes to pay to the Bank forthwith on demand any balance which may be owing.
7. The Depositor shall not have any right or claim against the Bank or its nominees in respect of any loss arising out of the sale of the Mortgaged Securities howsoever such loss may have been caused and whether or not a better price could or might have been obtained on the sale of the Mortgaged Securities or any of them by either deferring or advancing the date of such sale or otherwise howsoever.
8. (1) If the Bank or its nominees shall at any time receive notice of any subsequent mortgage, assignment, charge or other interest affecting all or any part of the Mortgaged Securities, the Bank may open a new account or accounts for the Depositor in the Bank's books and if the Bank does not do so, then (unless the Bank gives to the Depositor express written notice to the contrary) as from the time of receipt of such notice by the Bank or its nominees, all payments made by the Depositor to the Bank shall in the absence of any express appropriation by the Bank to the contrary be treated as having been credited to a new account of the Depositor and not as having been applied in reduction of the moneys and liabilities owing aforesaid at the time when the Bank received the notice.
(2) All moneys received, recovered or realised by the Bank or its nominees under this Memorandum (including the proceeds of any conversion of currency) may in the absolute discretion of the Bank be credited to any suspense or impersonal account and may be held in such account for so long as the Bank shall think fit (with interest accruing thereon at such rate, if any, as the Bank may deem fit) pending their application from time to time (as the Bank shall be entitled to do in its discretion) in or towards the discharge of any of the moneys and liabilities hereby secured.
(3) In case the Bank shall have more than one account for the Depositor in the Bank's books, the Bank may at any time after making any demand for payment or other discharge of any of the moneys and liabilities owing aforesaid or after the Bank shall have received notice of any subsequent charge or other interest affecting all or any part of the Mortgaged Securities and without prior notice in that behalf, forthwith transfer all or any part of any balance standing to the credit of any such account to any other account which may be in debit.