DATED THIS DAY OF
BETWEEN
[ ]* and [ ]
as Assignor
and
THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED
as Assignee
______
ASSIGNMENT OF RENTAL PROCEEDS
______
(Name of Law Firm) ASSIGNMENT OF RENTAL PROCEEDS
THIS ASSIGNMENT is made on the day of 20[ ]
BETWEEN:-
(1) [ ] and [ ] (hereinafter called the "Assignor"); and
(2) THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED, a company incorporated in the Hong Kong SAR with limited liability and having a place of business at 21 Collyer Quay #10-02 HSBC Building, Singapore 049320 (hereinafter called the "Assignee”).
WHEREAS:-
(1) The Assignor is the registered proprietor of the Mortgaged Property described in Schedule 1.
(2) The Assignor has agreed to execute this Assignment to secure the Banking Facilities (as defined below) made available by the Assignee to the Assignor now or from time to time hereafter to such extent and on such terms and conditions and for so long as the Assignee may think fit.
(3) This Assignment shall be supplemental to all other securities given to the Assignee in respect of the Banking Facilities, including but not limited to the Mortgage (as defined below).
IT IS AGREED as follows:-
1. INTERPRETATION
(A) Definitions: In this Assignment, except to the extent that the context requires otherwise:-
"Account" means the account or accounts opened and maintained by the Assignor with the Assignee or any other account or accounts in place thereof required to be maintained by the Assignor for the purpose of the deposit of all Rental Proceeds referred to in Clause 3;
"Assigned Property" means all the moneys, rights, title, interests and benefits,assets and property of the Assignor assigned or charged to the Assignee under or pursuant to Clause 5;
"Assignee" includes its successors in title and assigns and any company with which it may amalgamate;
“the Assignee’s Group” means each of the Assignee, its subsidiaries, its related companies and its affiliates;
"Assignor" includes the legal personal representatives of the Assignor;
“Authorised Officer” means the financial controller, accountant, manager or officer of the Assignee, or corporation/firm for the time being acting as solicitor or solicitors for the Assignee and any person for the time being acting in one or more of those capacities;
"Banking Facilities” means the general banking facilities including but not limited to advances, revolving credit facilities, loans, guarantee facilities and term facilities whether in Singapore Dollars and/or in foreign currencies and such other general banking and credit facilities or other accommodation made and/or to be made available by the Assignee to, or at the request of the Assignor, up to such amount or amounts and to such extent as the Assignee may from time to time agree or allow;
"CLP Act" means the Conveyancing and Law of Property Act (Cap. 61);
2 Assignment of Rental Proceeds (Direct) "Event of Default” means any of the events of default specified in Clause 8 of the Memorandum of Mortgage numbered as ID/524783C lodged with the Singapore Land Authority (which has been incorporated into the Mortgage;
"Facility Documents" means any or all of the Assignee's facility letters, the Assignee's standard form documents executed by the Assignor under or in connection with the Banking Facilities or any part thereof and any other document or agreement (including any loan or credit agreement), under or pursuant to which any moneys or liabilities whatsoever may, at any time (at the date of execution of the Mortgage or at any time thereafter), be due, owing or payable by the Assignor to the Assignee, whether actually or contingently, solely or jointly or jointly and/or severally with another or others or as principal or as surety or otherwise, under or in connection with the Banking Facilities or any part thereof and where documents are executed to guarantee or secure the obligations of the Assignor under or in connection with the Banking Facilities, the term "Facility Documents" shall include all such documents (including, but without limitation, any Deed of Assignment relating to the Mortgaged Property executed by the Assignor in favour of the Assignee) from time to time executed to guarantee or secure the obligations of the Assignor under or in connection with the Banking Facilities (and any reference to a Facility Document shall be a reference to that Facility Document as from time to time amended, modified or supplemented);
"Mortgage” means a mortgage over the Mortgaged Property created in favour of the Assignee (which expression shall include any amendments and variations thereto or any further mortgage(s) or any mortgage(s) executed in substitution for or in addition to the Mortgage as security for the Secured Debt;
"Mortgaged Property” means the property described in Schedule 1;
"Prime Rate” means, on any day, the rate per annum which is the Assignee's prime lending rate for Singapore Dollars, as announced by the Assignee from time to time, in force on such date and, for the purposes of this Assignment, a change in such rate shall be effective on and from the day on which it is announced or displayed at the Assignee's premises, and if such announcement or display provides for such change to come into effect on a later date, on and from such later date;
“ Rental Proceeds” means all the rights, title and interest in and under any and all Tenancy Agreements , including (but without prejudice to the generality of the foregoing) all rental proceeds, rental deposit, service charge and other amounts whether on account of any claims, awards and judgements made or given under or in connection with the Tenancy Agreements or otherwise howsoever;
"Secured Debt" means (a) all sums (whether principal, interest, fee, commission or otherwise) which are or at any time may be or become due from or owing by the Assignor to the Assignee, or which the Assignor has covenanted to pay or discharge, whether actually or contingently, under or in connection with any of the Facility Documents and/or this Assignment and the Mortgage and (b) all other liabilities and moneys (whether principal, interest, fee, commission or otherwise) which now are or at any time hereafter may become due from or owing by, or be incurred by the Assignor to the Assignee, in whatever currency the same shall be denominated or owing, whether alone or jointly with any other person and on any account whatsoever, whether current or otherwise, and whether present, future, actual or contingent, and whether as principal debtor, guarantor, surety or otherwise howsoever, including (without limitation) interest and all liabilities in connection with foreign exchange transactions, paying, accepting, endorsing or discounting any cheques, notes or bills, or under bonds, guarantees, indemnities, documentary or other credits or any instruments whatsoever from time to time entered into by the Assignee, for or at the request of the Assignor;
"Security Party" means any party (other than the Assignor or the Assignee) who shall have provided security to, or entered into any of the Facility Documents with, the Assignee, as security for the obligations of the Assignor to the Assignee;
3 Assignment of Rental Proceeds (Direct) "Singapore Dollars" and "S$" means the lawful currency of the Republic of Singapore;
"Tenancy Agreements” means any and all tenancy agreements and all other leases, licences, tenancies, letting arrangements, options, reservations, rights of first refusal and other agreements of whatever kind which are or at any time may be entered into by or on behalf of the Assignor for the occupation, use or possession of the Mortgaged Property (or any part thereof) and "Tenancy Agreement” means any one of the Tenancy Agreements; and
"Tenants" means the persons who have entered into Tenancy Agreements with the Assignor and "Tenant" means any one of the Tenants.
(B) Mortgage: All terms and references used in this Assignment and which are defined or construed in the Mortgage but are not defined or construed in this Assignment shall have the same meaning and construction in this Assignment. All references in this Assignment to the Mortgage are references to the Mortgage as amended, modified or supplemented from time to time.
(C) This Assignment: Except to the extent that the context otherwise requires, any reference to "this Assignment" includes this Assignment as from time to time amended, modified or supplemented and any document which is supplemental hereto or which is expressed to be collateral herewith or which is entered into pursuant to or in accordance with the terms hereof.
(D) Headings and Clauses: The headings in this Assignment are for convenience only and shall not be deemed to be part thereof or be taken into consideration in the interpretation or construction thereof. Unless the context otherwise requires, words importing the masculine gender include the feminine or neuter gender and words importing the singular number include the plural number and vice versa. References to the "Clauses" and the "Schedule" are to be construed as references to, clauses of, and the schedule to, this Assignment.
(E) Obligations of the Assignor: Where two or more persons/parties constitute the expression “Assignor” all covenants, obligations, stipulations and agreements expressed to be made by them shall be deemed to be made by, and shall be binding on, them jointly and severally and all references to "Assignor" shall refer to any or all of them;
(F) Statute: All reference to statutory provisions shall be construed as including references to:-
(i) Any statutory modification consolidation or re-enactment (whether before on or after the date of execution of the Assignment) for the time being in force;
(ii) All statutory instruments or orders made pursuant to a statutory provision;
(iii) Any statutory provisions of which a statutory provision is a consolidation, re-enactment or modification; and
(iv) Any regulations or directives including any modification or consolidation for the time being in force.
(G) In the event of any inconsistency between:-
(i) the terms and conditions in this Assignment and those contained in the Mortgage, the terms and conditions of this Assignment shall prevail.
(ii) the terms and conditions contained in this Assignment and those contained in the Letter of Offer, the terms and conditions of the Letter of Offer shall prevail.
2. COVENANT TO PAY
4 Assignment of Rental Proceeds (Direct) In consideration of the Assignee granting or agreeing to grant for the benefit of the Assignor, the Banking Facilities, the Assignor hereby covenants with the Assignee:
(i) to pay and discharge upon demand (in respect of the Banking Facilities which are expressed to be payable on demand) or on the due date thereof, all moneys, obligations and liabilities whatsoever which now are or at any time hereafter (whether on or after any such demand or otherwise) may be due from or owing or payable by, or to be incurred by, the Assignor to the Assignee, in whatever currency the same shall be denominated or owing whether alone or jointly with any other person and on any account whatsoever, whether current or otherwise, and whether present, future, actual or contingent and whether as principal debtor, guarantor, surety or otherwise howsoever or in any manner whatsoever and all other liabilities, whether certain or contingent, whether or not under, pursuant to or in connection with any of the Facility Documents including (without limitation) all liabilities in connection with paying, accepting, endorsing or discounting any cheques, notes or bills, or under guarantees, documentary or other credits or any instrument whatsoever from time to time entered into by the Assignee for or at the request of the Assignor and all commission, discount and all banking, legal and other costs, charges and expenses whatsoever (on a full indemnity basis), and also interest on the foregoing;
(ii) without prejudice to the generality of paragraph (i), and as a continuing obligation, to keep the Assignee fully indemnified on demand from and against any and all payments made by or on behalf of the Assignee under any documentary or other credits or guarantees issued by the Assignee at the request of the Assignor, or pursuant to any facilities provided by the Assignee to the Assignor, and any expense, loss, damage, cost, claim or liability whatsoever which the Assignee may incur under or in connection with the said documentary or other credits or guarantees or any of the Facility Documents including, without limitation, any legal and other cost, charge or expense (on a full indemnity basis) incurred by the Assignee in connection therewith;
(iii) to pay interest or commissions on or in respect of the Banking Facilities at the rate(s) (hereinafter called the “Applicable Rate(s)") and in accordance with the terms set out in the Facility Documents and further agree that save as may be otherwise provided in the Facility Documents:-
(a) interest or commissions on or in respect of each of the Banking Facilities shall accrue from day to day on such basis and with such periodic rests as the Assignee may from time to time determine;
(b) interest on any principal money for the time being owing, including capitalised interest, shall at or about the end of each month be capitalised and added for all purposes to the principal money then owing which shall thenceforth bear interest at the Applicable Rate(s) aforesaid and be secured and payable accordingly and all the covenants and conditions contained in or implied by this Assignment and all powers and remedies conferred on the Assignee by law or by this Assignment and all rules of law or equity in relation to the said principal money and interest shall equally apply to such capitalised arrears of interest and to interest on such arrears;
(c) if and when a demand is made by or on behalf of the Assignee for payment of all or any moneys herein covenanted to be paid or to be discharged in relation to the Banking Facilities which are expressed to be payable on demand or if any moneys payable in respect of the other Banking Facilities shall become due and/or the account current or otherwise of the Assignor shall be closed and a balance shall be owing or unpaid to the Assignee, the Assignor shall, so long as the same or any part thereof shall remain owing or unpaid or undischarged to the Assignee by the Assignor pay to the Assignee interest thereon at the applicable default rate(s) specified in the relevant Facility Documents or if no such default rate is specified, at
5 Assignment of Rental Proceeds (Direct) such rate(s) and with such periodic rests as the Assignee may from time to time determine, from the date of such demand being made until full payment is received by the Assignee (both after as well as before any demand, judgment, cessation or closure of any account of the Assignor with the Assignee or, the bankruptcy, death or insanity of the Assignor.
(iv) to pay and discharge (on a full indemnity basis) on demand all costs, charges and expenses howsoever incurred by the Assignee or by any receiver or by any delegate or sub-delegate appointed by the Assignee pursuant to this Assignment in relation to this Assignment or such liabilities as aforesaid including (but without prejudice to the generality of the foregoing) remuneration payable to any such receiver, delegate or sub-delegate as aforesaid and all costs, charges and expenses incurred in the protection, realisation or enforcement of the security constituted by this Assignment or in insuring, inspecting, repairing, maintaining, completing, managing, letting, realising or exercising any other power, authority or discretion in relation to the Assigned Property or any part thereof incurred pursuant to this Assignment;
(v) to pay interest on each of the foregoing costs, charges and expenses calculated day by day from demand until full discharge (both after as well as before any demand, judgment, cessation or closure of any account of the Assignor with the Assignee or, the bankruptcy, death or insanity of the Assignor ) at the rate as setforth in the property loan standard terms of the Assignee or at such other rate or rates as may from time to time be determined by the Assignee Provided that in relation to such costs, charges and expenses as are mentioned in paragraph (iv) above, interest shall accrue and be payable as from the date on which the same are incurred by the Assignee or by the receiver, delegate or sub-delegate as aforesaid or shall become due to the receiver, delegate or sub-delegate under the terms of his appointment without the necessity for any demand being made therefor and all such interest shall be calculated from the time of the same having been paid or expended until repayment in full and such interest shall be calculated on a daily basis with monthly rests or such other periodic rests as the Assignee may determine from time to time. All costs, charges and expenses as are mentioned in paragraph (iv) together with interest thereon shall be a charge on the Assigned Property and may be debited to any account(s) of the Assignor with the Assignee; and
(vi) to perform, observe and be bound by all terms and conditions contained in or referred to in each of the Facility Documents.
3. ACCOUNT
The Assignor hereby undertakes to and agrees with the Assignee that the Assignor shall at all times during the continuance of this Assignment open and maintain the Account with the Assignee and that all sums (including but not limited to Rental Proceeds) which may at any time be received by or payable to the Assignor under or in connection with each Tenancy Agreement shall be paid into the Account.
4. TENANCY OF THE MORTGAGED PROPERTY
The Assignor may grant Tenancy Agreements to such person(s) and at such times as the Assignor may deem fit, provided always that each and every of the following terms and conditions shall be duly observed and performed:-
(i) furnish and provide the Assignee with and shall permit the Assignee to obtain all such information and data as the Assignee may require in connection with any letting out, renting out or licensing or any Tenancy Agreements and without prejudice to the generality of the foregoing, shall furnish and provide the Assignee at quarterly intervals or at any time
6 Assignment of Rental Proceeds (Direct) requested by the Assignee a report or statement in respect of all such leases tenancy or licence agreements or agreements for lease relating thereto detailing:-
(a) the Mortgaged Property and the term rented;
(b) the area and addresses of such Mortgaged Property rented;
(c) the names of such lessees, tenants or licensees;
(d) the rental of the Mortgaged Property and if any, service charge chargeable per month under such Tenancy Agreement; and
(e) any such further detail as the Assignee may require;
the first of such report or statement to be given one (1) month after the date the Mortgaged Property is rented and such report or statement shall annex copies of the Tenancy Agreements if so required by the Assignee;
(ii) from time to time at the request of the Assignee, execute and deliver promptly and duly to the Assignee any such further instruments or documents, and do any act or thing as the Assignee may require or which are required by law or regulation, or for the purpose of perfecting the security created or intended to be created by this Deed and of obtaining the full benefit of this Deed and of the rights and powers hereby granted; and
(iii) not lease, grant licences over, sell, transfer, lend or otherwise dispose of or cease to exercise direct control over the Mortgaged Property or any part thereof without the Assignee’s prior written consent. Provided that this prohibition shall not apply to any Tenancy Agreement entered into by the Assignor for any Mortgaged Property which satisfies all of the following conditions:-
(a) the term of the Tenancy Agreements shall be for a period not exceeding three (3) years without an option for renewal which upon exercise thereof would have the effect of extending the aggregate term for a period exceeding three (3) years;
(b) the Tenancy Agreements shall be made on normal arm's length commercial terms and consideration;
(c) the rent and, if any, service charge of the Mortgaged Property is at the prevailing market rate for the Mortgaged Property comprised in the tenancy and/or shall be not less than those approved by the Assignee from time to time; and
(d) the Assignor shall deposit, or cause to be deposited Rental Proceeds and other moneys received by the Assignor under each Tenancy Agreement to the Account.
5. ASSIGNMENT AND CHARGE
(A) Assignment of Tenancy Agreements: The Assignor as beneficial owner, and as a continuing security for the payment and discharge of the Secured Debt and for the observance and performance by the Assignor of the Assignor’s obligations under the Mortgage, this Assignment and the Facility Documents hereby assigns and agrees to assign absolutely to the Assignee free from all liens, charges and other encumbrances, all of the present and future rights, title and interest in and to, and all benefits accrued and to accrue to the Assignor under:-
(i) the Tenancy Agreements; and
7 Assignment of Rental Proceeds (Direct) (ii) the proceeds of any payments which may at any time be received by or payable to the Assignor under or in connection with the Tenancy Agreements whether on account of any claims, awards and judgments made or given under or in connection with the Tenancy Agreements or otherwise howsoever.
(B) Charge and Assignment of Account: The Assignor as beneficial owner, and as a continuing security for the payment and discharge of the Secured Debt and for the observance and performance by the Assignor of the Assignor’s obligations under the Mortgage, this Assignment and the Facility Documents hereby charges and agrees to charge in favour of the Assignee and assigns and agrees to assign absolutely to the Assignee, free from all liens, charges and other encumbrances, all of the present and future rights, title and interest in and to, all moneys from time to time standing to the credit of the Account whether in addition to or by way of renewal, extension or replacement of any moneys previously deposited in or credited to the Account or otherwise, together with any interest from time to time accruing in respect of such moneys.
(C) Exoneration of Assignee: The Assignee shall not be obliged at any time to investigate into, or verify, the sufficiency of proceeds paid or credited into the Account.
6. CONTINUING SECURITY
(A) Continuing Obligations: The security created by this Assignment shall constitute and be a continuing security for the payment and discharge of the Secured Debt notwithstanding any intermediate payment or settlement of account or reduction or repayment of the same or any part or parts thereof for the time being owing, any account ceasing to be current or any fluctuation or existence of any credit balance at any time or other matter or thing whatsoever, and shall extend to cover all or any sum or sums of moneys which shall from time to time be owing to the Assignee under or in connection with any of the Facility Documents, the Mortgage and/or this Assignment or otherwise. The security created by this Assignment shall be in addition to and shall not be in any way prejudiced or affected by any of the other Facility Documents or any collateral or other security, guarantee, indemnity, right, remedy or lien of whatever nature which the Assignee may now or at any time hereafter have or any judgment or order obtained by the Assignee for or in respect of all or any part of the Secured Debt nor shall any of the other Facility Documents or any such collateral or other security, guarantee, indemnity, right, remedy or lien be in any way prejudiced or affected by this Assignment.
(B) Unconditionality of Security: The security created by this Assignment shall not be discharged or affected by (i) any time, indulgence, concession, waiver or consent at any time given to the Assignor, any Security Party or any other person, (ii) the Facility Documents, (iii) any amendment to any of the Facility Documents, this Assignment, the Mortgage, any of the Facility Documents or any other agreement, security, guarantee, indemnity, right, remedy, lien or judgment, (iv) the making or absence of any demand on the Assignor, any Security Party, or any other person for payment, (v) the enforcement or absence of enforcement of this Assignment, the Mortgage, any of the Facility Documents or any other agreement, security, guarantee, indemnity, right, remedy, lien or judgment, (vi) the taking, existence, release or discharge of this Assignment, the Mortgage, any of the Facility Documents or any other agreement, security, guarantee, indemnity, right, remedy, lien or judgment (including the release of any part of the Assigned Property), (vii) the death, insanity or bankruptcy of the Assignor, any Security Party or any other person, (viii) the winding-up, amalgamation, reconstruction or reorganisation of any Security Party or any other person (or the commencement of any of the foregoing), (ix) the illegality, invalidity or unenforceability of or any defect in any provision of this Assignment, the Mortgage, any of the Facility Documents or any other agreement, security, guarantee, indemnity, right, remedy, lien or judgment or any of the obligations of any of the parties thereunder or (x) any other matter or thing whatsoever which but for the provisions of this sub-Clause (B) will discharge or affect the security created by this Assignment.
(C) Continuation/Opening of New Accounts: In the event of the death, insanity or bankruptcy of the Assignor or of this Assignment ceasing for any reason to be binding on the Assignor or if the
8 Assignment of Rental Proceeds (Direct) Assignee shall at any time receive notice (either actual or otherwise), of any subsequent mortgage, charge, assignment, hypothecation, pledge, lien or other like interest, matter, event or transaction affecting the Assigned Property or any part thereof, the Assignee may on receiving such notice forthwith open a new or separate account or accounts for the Assignor either alone or jointly with any other person or party. If the Assignee does not in fact open such new or separate account or accounts the Assignee shall nevertheless be deemed to have done so at the time when the Assignee received or was deemed to have received such notice (the "time of notice”) and as from and after the time of notice all payments in account made by or on behalf of the Assignor to the Assignee shall (notwithstanding any legal or equitable rule of presumption to the contrary) be placed or deemed to have been placed to the credit of the new or separate account or accounts so opened or deemed to have been opened as aforesaid and shall not go in reduction of any part of the moneys owing to the Assignee under this Assignment at the time of notice. PROVIDED ALWAYS that nothing in this sub-Clause (C) contained shall prejudice the security which the Assignee otherwise would have had under this Assignment for the payment of the moneys costs charges and expenses secured or intended to be secured by this Assignment notwithstanding that the same may become due or owing or be incurred after the time of notice.
(D) Consolidation of Accounts and Set-off: In addition to any general lien or similar right to which it may be entitled by operation of law, the Assignee shall have the right at any time and without notice to the Assignor to combine or consolidate all or any of the Assignor's existing accounts with any liabilities to the Assignee and to set-off or transfer any sum or sums standing to the credit of any one or more of such accounts in or towards satisfaction of any of the liabilities of the Assignor to the Assignee on any other account or in any other respect. The liabilities referred to in this sub-Clause (D) may be actual, contingent, primary, collateral, several or joint liabilities, and the accounts, sums and liabilities referred to in this sub-Clause (D) may be denominated in any currency.
(E) Suspense Account: Any amount received or recovered by the Assignee in respect of any amount received or recovered pursuant to this Assignment and/or any of the powers hereby conferred may be placed in a suspense account. That amount may be kept there (with any interest accrued being credited to that account) unless and until the Assignee is satisfied that it has irrevocably received or recovered the Secured Debt.
7. APPLICATION OF MONEYS
(A) Authorisation: The Assignor hereby irrevocably authorises the Assignee to apply all moneys standing to the credit of the Account of the Assignor and/or the Borrower in and towards payment of all moneys and liabilities for the time being owing and unpaid in respect of the Secured Debt and where such moneys or liabilities are of a contingent nature, in or towards making full and adequate provisions for payment of such moneys and liabilities as and when they arise in such manner or order of appropriation as the Assignee in its absolute discretion deems fit.
(B) Undertaking: The Assignor undertakes to the Assignee that the Assignor shall not withdraw (or attempt to withdraw), or deal with (or agree, conditionally or unconditionally, to deal with) any of the moneys from time to time standing to the Assignor's credit in the Account or purport or attempt to do any other act or thing which may in any way delay or prejudice the right of the Assignee to receive payment of such moneys.
(C) Power to Withdraw and Convert: The Assignee shall have power at any time either in its own name or in the name of the Assignor, and without notice to the Assignor or any other person, to withdraw or convert into Singapore Dollars, at an exchange rate to be determined by the Assignee, any moneys from time to time standing to the credit of the Assignor in the Account and apply such moneys in or towards the manner set out in sub-Clause (A) above.
9 Assignment of Rental Proceeds (Direct) 8. REPRESENTATIONS AND WARRANTIES
(A) By Assignor: The Assignor hereby represents and warrants to and for the benefit of the Assignee as follows:-
(i) Powers: the Assignor has the power to enter into and perform and comply with the Assignor's obligations under, and to create the security expressed to be created by this Assignment;
(ii) Authorisation and Consents: all action, conditions and things required to be taken, fulfilled and done (including the obtaining of any necessary consents in order (a) to enable the Assignor lawfully to enter into and perform and comply with the Assignor's obligations under, and to create the security expressed to be created by, this Assignment, (b) to ensure that those obligations are valid, legally binding and enforceable in accordance with their respective terms, (c) to ensure that the security to be created by this Assignment ranks and shall at all times rank ahead of any other present or future security on or over the Assigned Property or any part thereof, and (d) to ensure that this Assignment shall be admissible in evidence in the courts of Singapore and/or elsewhere have been, or will be, within the statutorily prescribed timeframe, taken, fulfilled and done.
(iii) Non-Violation of Laws, etc.: the Assignor's entry into and/or performance of or compliance with the Assignor's obligations under this Assignment, and the creation of the security expressed to be created by this Assignment, do not and shall not violate, or exceed any borrowing or other powers or restrictions granted or imposed under or pursuant to (a) any law to which the Assignor is subject or (b) any agreement to which the Assignor is a party or which is binding on the Assignor or the Assignor’s assets;
(iv) Obligations Binding: the Assignor’s obligations under this Assignment, and the security expressed to be created by this Assignment, are legal, valid, binding and enforceable in accordance with their respective terms and, in the case of such security, shall rank ahead of any other present or future security on or over the Assigned Property or any part thereof;
(v) Litigation: no litigation, arbitration or administrative proceeding is current or pending or threatened to restrain the entry into, exercise of the Assignor's rights (if any) under and/or performance or enforcement of or compliance with the Assignor's obligations under, or the creation of the security expressed to be created by, this Assignment;
(vi) Bankruptcy: no steps have been taken nor have any proceedings been started or threatened for the Assignor's bankruptcy or for the appointment of a receiver, trustee or similar officer to the Assignor, the Assignor's assets or any of them;
(vii) Ownership: the Assignor is the sole and beneficial owner of the Mortgaged Property; and
(viii) Existing Security: no security exists on or over all or any part of the Assigned Property except for the security created by this Assignment.
(B) Repetition: The Assignor represents and warrants to and for the benefit of the Assignee on each date for so long as this Assignment is in force, with reference to the facts and circumstances then subsisting, that each of the warranties and representations contained in sub-Clause (A) above remains true, accurate and correct as if made at each such time.
9. UNDERTAKINGS
The Assignor hereby undertakes to the Assignee that:-
10 Assignment of Rental Proceeds (Direct) (i) Notice of Assignment of Tenancy Agreements: the Assignor shall, forthwith upon the occurrence of the Event of Default, give to the Tenant thereof, a notice of this Assignment in the form of Schedule 2 (or in such other form as may be approved by the Assignee in writing) and procure that the Tenant promptly delivers to the Assignee an acknowledgement of such notice in the form of Schedule 3 (or in such other form as the Assignee may require);
(ii) Disposition: the Assignor shall not agree, conditionally or unconditionally to sell, assign, transfer or otherwise dispose of or cease to exercise direct control over, or create (or agree conditionally or unconditionally, to create) or permit to arise or subsist any pledge, lien (other than liens arising by operation of law), mortgage, charge or other encumbrance whatsoever whether fixed or floating or otherwise howsoever, over or in respect of the Assigned Property or any interest therein or part thererof, both present and future, except for the security created by this Assignment;
(iii) Performance: the Assignor shall take all steps necessary or advisable to secure the due performance by each of the Tenants of their obligations under the Tenancy Agreement to which such Tenant is a party;
(iv) Tenancy Agreements: the Assignor shall promptly and diligently perform and comply with the obligations on the Assignor's part contained in the Tenancy Agreements, notify the Assignee of any breach of or default of any term (of which the Assignor has knowledge) of the Tenancy Agreements and institute and prosecute all such proceedings as the Assignee may consider to be necessary or advisable to preserve or protect the Assignor's interests and the interests of the Assignee in the Tenancy Agreements;
(v) Frustration: the Assignor shall not make or agree to any claim that any of the Tenancy Agreements is frustrated or invalid;
(vi) Exercise: the Assignor shall at no time exercise any right or power conferred on the Assignor by any of the Tenancy Agreements in any manner which is in the opinion of the Assignee adverse to the interests of the Assignee under this Assignment;
(vii) Impairment of Security: the Assignor shall not take or omit to take any action the taking or omission of which is likely to result in any alteration or impairment of any of the Tenancy Agreements or of this Assignment or of any of the rights created thereby or hereby;
(viii) Enforcement of Rights: the Assignor shall do or permit to be done each and every act or thing which the Assignee may from time to time require to be done for the purpose of enforcing the rights of the Assignee under any of the Tenancy Agreements and this Assignment and shall allow the Assignor's name to be used as and when required by the Assignee for that purpose;
(ix) Rendering Tenancy Agreements Void: the Assignor shall not do, or omit to do, or suffer or permit, anything to be done which is likely to render any of the Tenancy Agreements to be or become, in any respect, invalid, void or voidable;
(x) Notices: the Assignor shall forthwith send to the Assignee a copy of all notices received or given by the Assignor under the Tenancy Agreements;
(xi) Variation/Termination: the Assignor shall not agree to any variation of any of the Tenancy Agreements or release any party from any of its obligations thereunder or exercise any rights or powers of termination under any of the Tenancy Agreements or waive any breach of any of the Tenancy Agreements which might adversely affect the Assignee's security interest over the Assigned Property or any part thereof; and
11 Assignment of Rental Proceeds (Direct) (xii) No Equities: the Assignor shall not create or permit to exist any equities between any of the Tenants and the Assignor which is likely to be to the detriment of the Assignee.
10. CONTINUING OBLIGATIONS
(A) Assignor's Obligations: It is further agreed and declared by the Assignor that notwithstanding this Assignment:-
(i) No Enquiry: the Assignee shall not be obliged to make any enquiry as to the nature or sufficiency of any payment made under any of the Tenancy Agreements, or to make any claim or take any other action to collect any moneys or to enforce any rights and benefits hereby assigned to the Assignee or to which the Assignee may at any time be entitled hereunder;
(ii) Assignor to Deliver Request: the Assignor shall deliver a written request (together with such documents as may be necessary) for payment due and payable pursuant to the Tenancy Agreements (or any of them) as and when required to do so by the Assignee; and
(iii) Assignor to Remain Liable: the Assignor shall remain liable under the Tenancy Agreements to perform alI the conditions and obligations provided in the Tenancy Agreements to be observed and performed by the Assignor and neither this Assignment nor the receipt by the Assignee of any payment pursuant hereto shall cause the Assignee to be under any obligation or liability under any of the Tenancy Agreements or for the performance or observance of any of the representations, warranties, conditions, covenants, agreements or other terms of any of the Tenancy Agreements.
(B) Rights of Assignee: At any time after the Assignor shall have failed to pay, satisfy or discharge when due (or on demand if the same is expressed to be payable on demand) any part or parts of the Secured Debt payable by the Assignor or at any time after the occurrence of any other Event of Default, but without prejudice to any of the other provisions of this Assignment, the Assignee shall be entitled either in its own name or as agent for the Assignor:
(i) Performance: to perform and enforce the Tenancy Agreements or any of them;
(ii) Amendment: to agree to any amendment, variation, termination or repudiation of the Tenancy Agreements or any of them;
(iii) Disposal: to sell, assign, transfer or otherwise dispose of the Assigned Property or of any property, assets or rights received in respect thereof;
(iv) Dealing: in all other respects to deal with, enjoy and exploit the Tenancy Agreements or any of them as if it were the contracting party thereto; and
(v) Powers as Assignee: otherwise to put into force and effect all rights, powers and remedies available to it at law or otherwise as assignee of the Tenancy Agreements.
11. INDEMNITY
(A) The Assignor shall indemnify and at all times keep the Assignee fully and completely indemnified against any loss, costs, charges, liabilities, claims, demands, actions, proceedings or expenses which the Assignee, its officers, employees and/or agents may sustain or incur as a direct or indirect consequence of inter alia:-
(i) the occurrence of an Event of Default;
12 Assignment of Rental Proceeds (Direct) (ii) any exercise or attempted exercise of any right, power or remedy under, this Assignment the Mortgage and/or the Facility Documents or any failure to exercise any right, power or remedy thereof;
(iii) the Banking Facilities from time to time as agreed to be provided by the Assignee is not being provided for any reason (including without limitation failure to fulfill any of the conditions precedent);
(iv) the Assignee receiving payment of principal in respect of the Banking Facilities on or before the last day of any repayment due date relating to the Banking Facilities for any reason; and
(v) in connection with the Banking Facilities secured by this Assignment, the Mortgage and the Facility Documents.
(vi) by reason of any failure of the Assignor to perform any of the Assignor's obligations under the Tenancy Agreements or this Assignment or in the execution or purported execution of any of the rights, powers, remedies, authorities or discretions vested in the Assignee under or pursuant to this Assignment.
Without prejudice to its generality, the foregoing indemnity shall extend to any interest, fees, or other sums whatsoever paid or payable on account of any funds borrowed by the Assignee in order to carry any unpaid amount, and to any loss (including loss of profit), premium, penalty or expense which may be incurred in liquidating or employing deposits from third parties acquired to make maintain or fund the Banking Facilities or any part thereof or any other amount due or to become due under, this Assignment the Mortgage and/or the Facility Documents.
(B) Repayment of Moneys: If the Assignee sees fit to implement its rights hereunder with respect to the Tenancy Agreement or if the Assignee makes any payment in respect of the Tenancy Agreements (including, but without limitation, any goods and services tax payable thereunder), all moneys so expended by the Assignee for the purposes aforesaid shall on demand be repaid by the Assignor to the Assignee and until such repayment together with interest thereon at the rate per annum equal to the sum of five per cent (5%) and the Prime Rate (or at such other rate or rates as may from time to time be determined by the Assignee (both after as well as before any demand, judgment, cessation or closure of any account of the Assignor with the Assignee or, the bankruptcy, death or insanity of the Assignor (as the case may be)) shall be secured by this Assignment and all such interest shall be calculated from the time of the same having been paid or expended until repayment in full and such interest shall be calculated on a daily basis with monthly rests or such other periodic rests as the Assignee may from time to time determine and all moneys expended by the Assignee for the purposes aforesaid may be debited to any account(s) of the Assignor with the Assignee. In addition, interest on all moneys expended by the Assignee for the purposes aforesaid shall accrue and be payable as from the date on which the same are expended by the Assignee without the necessity for any demand made therefor.
12. DELEGATION
The Assignee may at any time and from time to time delegate by power of attorney or in any other manner to any person(s) and/or body of person(s) all or any of the powers, authorities and discretions which are for the time being exercisable by the Assignee under this Assignment in relation to the Assigned Property or any part thereof and any such delegation may be made upon such terms and conditions (including power to sub-delegate) and subject to such regulations as the Assignee may think fit and the Assignee shall not be in any way liable or responsible to the Assignor for any loss or damage arising from any act, default, omission or misconduct on the part of any such delegate or sub-delegate.
13 Assignment of Rental Proceeds (Direct) 13. ENFORCEMENT
(A) Section 21: Section 21 of the CLP Act shall not apply to this Assignment.
(B) Power of Sale: If the Assignor or any other person shall fail to pay satisfy or discharge when due (or on demand, if the same is expressed to be payable on demand) any part or parts of the Secured Debt payable by the Assignor or if at any time and for any reason (and whether within or beyond the control of any party to this Assignment) any other Event of Default shall occur, the Assignee may at any time thereafter, whether or not any such Event of Default is continuing and notwithstanding any other provisions contained herein, the Mortgage and/or the Facility Documents, by notice in writing to the Assignor, declare that an Event of Default has occurred whereupon:-
(i) the Banking Facilities shall be deemed cancelled; and
(ii) the whole of the Secured Debt shall become immediately due and payable without any further demand or notice of any kind and the security hereby created shall become immediately enforceable and the power of sale and all other powers conferred by the CLP Act and this Assignment shall arise and may be immediately exercised by the Assignee. The Assignee may exercise the power of sale conferred on mortgagees by the CLP Act (as varied and extended by this Assignment) free from the restrictions imposed by Section 25 thereof.
(C) Statutory Powers: The powers conferred by this Assignment in relation to the Assigned Property or any part thereof on the Assignee shall be in addition to and not in substitution for the powers conferred on mortgagees under the CLP Act, which shall apply to the security created by this Assignment except insofar as they are expressly or impliedly excluded. Where there is any ambiguity or conflict between the powers contained in the CLP Act and those conferred by this Assignment as aforesaid or where the powers or protections in this Assignment are more extensive or less restricted than those provided by the CLP Act, then the terms of this Assignment shall prevail to the extent permitted by Iaw.
14. FURTHER ASSURANCE
The Assignor shall at their own expense execute and do all such assurances, acts and things as the Assignee may require for perfecting or protecting the security over the Assigned Property or any part thereof or for facilitating the realisation of the Assigned Property and the exercise of all powers, authorities and discretions vested in the Assignee or in any such delegate or sub-delegate as aforesaid and shall in particular execute all transfers, conveyances, assignments and assurances of or relating to the Assigned Property (whether to the Assignee or to its nominees) and give all notices, orders and directions which the Assignee may think expedient. For the purposes of this Clause, a certificate in writing by the Assignee to the effect that any particular assurance, act or thing required by it is required shall be conclusive evidence of such fact.
15. POWER OF ATTORNEY
(A) Powers granted by the Assignor: The Assignor hereby by way of security irrevocably appoints the Assignee and every such delegate or sub delegate as aforesaid to be the Assignor's attorney and on the Assignor's behalf and in the Assignor's name(s) or otherwise, and with full power of substitution, to do and execute all or any or the following acts, things and deeds:
(i) Take Action: to demand, receive, sue for, recover and take all appropriate legal proceedings or actions to recover all moneys from time to time due and payable under all or any of the Tenancy Agreements and to give good receipts and discharges therefor;
14 Assignment of Rental Proceeds (Direct) (ii) Give Notices: to give such notices as the Assignee may deem fit to the Tenants or any of them requiring them to pay to the Assignee all the Rental Proceeds and other moneys payable or to become payable under all or any of the Tenancy Agreements;
(iii) Carry out and perform: to carry out and perform all or any of the obligations on the part of the Assignor under any of the Tenancy Agreements or any of them and to do all such things and matters and make or execute all such documents and to exercise all or any rights powers authorities and discretions which the Assignor is entitled to do make execute or exercise (or but for the assignment hereunder could do make execute or exercise) under any of the Tenancy Agreements or any of them;
(iv) Negotiate: to negotiate with any parties in connection with any matters arising from any of the Tenancy Agreements and to enter into any agreement with such parties upon such terms and conditions as the Assignee may think fit for resolving or dealing with any of those matters and to alter or vary any terms and conditions of any of the Tenancy Agreements or any of them as the Assignee may think fit;
(v) Defend: to defend any legal proceedings and to abandon any legal proceedings and to compromise settle or refer to arbitration any disputes actions or doubts which may arise in connection with any of the Tenancy Agreement(s) affecting the Assigned Property;
(vi) Terminate: without prejudice to the generality of the foregoing powers, to terminate any Tenancy Agreement if the Tenant defaults in any payment thereunder and to rent or lease such Mortgaged Property on such other terms and conditions as the Assignee may think fit and proper and to receive all moneys payable under the fresh tenancy and to give good and valid receipts for the same and to pay all deposit and other moneys paid upon such fresh tenancy into the Account and to enter into and sign any tenancy agreement with any such tenant thereof which the Assignee may consider necessary or proper for effectuating the fresh tenancy; and if any tenant of any such fresh tenancy makes default under his tenancy agreement from time to time to rent or lease that Mortgaged Property and to exercise all such rights and powers as hereinbefore mentioned to rent or lease that Mortgaged Property;
(vii) Execute Assignments: to execute, sign, seal, deliver and otherwise perfect an assignment or assignments to the Assignee of the Assignor's benefits, right and interest in or under all or any of the Tenancy Agreements including all Rental Proceeds and other moneys payable or to become payable under all or any of the Tenancy Agreements and to give notice of such assignments to the Tenants concerned, and take all necessary steps to perfect such assignments;
(viii) General: 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
(ix) All other Acts: to execute and do all such assurances, acts and things which the Assignor ought to do under the covenants and provisions contained in this Assignment but shall have failed so to do after being required so to do and generally in the Assignor's name or otherwise and on the Assignor's behalf to exercise all or any of the powers, authorities and discretions conferred by or pursuant to this Assignment on the Assignee or any such delegate or sub delegate and (without prejudice to the generality of the foregoing) to seal and deliver and otherwise perfect any deed, assurance, agreement, instrument or act which it may deem proper in or for the purpose of exercising any of such powers, authorities and discretions.
(B) Ratification by the Assignor: The Assignor hereby declares that such power of attorney has been given for valuable consideration and shall be and remain irrevocable for so long as any sum remains to be lent or made available to the Assignor under the Facility Documents or any part of the Secured Debt remains due and payable. The Assignor hereby ratifies and confirms and agrees to ratify and confirm whatever any such attorney as is mentioned in sub-Clause (A) above shall do or
15 Assignment of Rental Proceeds (Direct) purport to do in the exercise or purported exercise of all or any of the powers, authorities and discretions referred to in such sub-Clause.
16. AVOIDANCE OF PAYMENTS
No assurance, security or payment which may be avoided under any law relating to bankruptcy and no release, settlement or discharge given or made by the Assignee on the faith of any such assurance, security or payment, shall prejudice or affect the right of the Assignee to enforce the security created by this Assignment in respect of the full extent of the moneys thereby secured. Any such release, settlement or discharge shall be deemed to be made subject to the condition that it shall be void, if any payment or security which the Assignee may previously have received or may thereafter receive from any person in respect of the Secured Debt, is set aside under any applicable law or proves to have been for any reason invalid.
17. BENEFIT OF ASSIGNMENT
(A) This Assignment shall be binding upon and enure to the benefit of each party hereto and the successors and assigns of the Assignee and the respective legal personal representatives of the Assignor.
(B) The Assignee shall be at liberty at any time without the concurrence of and without notice to the Assignor, to assign or transfer this Assignment and the Secured Debt and any such assignee or transferee shall be entitled to the full benefit of this Assignment to the same extent as if it were an original party in respect of the rights and obligations assigned or transferred to it and the costs and expenses of the Assignee and such assignee or transferee of and incidental to such assignment or transfer shall be deemed to be the Assignee's expenses properly incurred and any recital or statement in the deed or document of assignment or transfer of the amount due to the Assignee under and by virtue of this Assignment shall be conclusive and binding for all purposes against the Assignor.
(C) The Assignor shall not assign or transfer all or any part of the Assignor’s rights and obligations under this Assignment.
18. REMEDIES AND WAIVERS
No failure on the part of the Assignee to exercise, and no delay in exercising, any right under this Assignment will operate as a waiver thereof, nor will any single or partial exercise of any right under this Assignment preclude any other or further exercise of any other right. The rights and remedies in this Assignment provided are cumulative and not exclusive of any rights or remedies provided by law. Any waiver or consent given by the Assignee under this Assignment shall be in writing and may be given subject to such conditions as the Assignee may impose. Any waiver or consent shall be effective only in the instance and for the purpose for which it is given.
19. RIGHT TO DEBIT ACCOUNTS
The Assignee shall be entitled at its absolute discretion at any time and from time to time without notice to the Assignor to debit any account of the Assignor with the Assignee (whether in Singapore or elsewhere) for the Secured Debt or any part thereof then payable PROVIDED ALWAYS that any such debit shall not constitute nor be deemed to be a payment of any moneys to which it relates (except to the extent of any amount in credit in the said account of the Assignor with the Assignee).
16 Assignment of Rental Proceeds (Direct) 20. COMMUNICATIONS
Notices
Any demand for payment or any other notice under this Assignment may be made or given by the Authorised Officer (and notwithstanding the death, insanity or bankruptcy of the Assignor) in accordance with the following provisions and the provisions of Section 60(3) of the Land Titles Act (Cap. 157) shall apply to every such demand or notice. Any notice duly served by the Assignee on any one Assignor shall bind the others as fully and effectively as if the others had also been served.
(i) Any notice or certificate to be given to, or demand to be made on, the Assignor shall be deemed to have been duly given or made if it is in writing, signed by an Authorised Officer of the Assignee, and delivered personally, or ordinary post, or sent by facsimile, or short message service (SMS) or electronic mail or pre-paid post addressed to the party to be notified and forwarded to:-
(a) the address of the Assignor as shown in the Mortgage or, where a new address has been notified in writing to the Assignee, and which has been duly received by the Assignee, that new address;
(b) the address of any property comprising in the Mortgaged Property.
(ii) Any communication from the Assignor shall be irrevocable and shall not be effective until received by the Assignee. Any communication from the Assignee to the Assignor shall be deemed to be received by the Assignor:
(a) if it is delivered (by hand or courier), at the time of delivery;
(b) if it is sent by prepaid post, twenty four (24) hours or if overseas five (5) days after posting thereof notwithstanding that it may have been returned through the post undelivered; or
(c) if it is sent by facsimile and confirmed by an activity report stating that the correct number of pages has been sent and the transmission is error free, immediately after transmission thereof if the date of transmission is a business day, and if such a date is not a business day or the time of despatch is after 5:00 p.m., then the notice by facsimile shall be deemed to be served on the business day immediately following.
(d) if it is sent by email or SMS, upon confirmation of electronic mail or SMS receipt when transmitted by electronic mail or SMS,
(iii) If the Assignor 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.
(iv) A statement signed by an Authorised Officer of the Assignee 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.
21. SERVICE OF PROCESS
Personal service of any writ of summons or other originating process or sealed copy thereof pleadings or other documents may be effected on the Assignor, the Borrower, and/or the Security Party by leaving the same at the place of business or abode or the address in Singapore of Assignor, the Borrower and/or the Security Party last known (and in this connection the Assignee shall be entitled to rely on the records kept by it or that of any registry or government or statutory authority) and if the last known address of the Assignor, the Borrower and/or the Security Party shall be a postal box number or other hold mail address then personal service may be effected by posting the same to such address or addresses and the Assignor, the Borrower and/or the Security Party irrevocably confirm that service of such writs of summons originating process pleadings or documents in the manner aforesaid may be 17 Assignment of Rental Proceeds (Direct) served on any one or more of the Assignor, the Borrower and/or the Security Party and such service shall be deemed good sufficient personal service on all the rest of the Assignor, the Borrower and/or the Security Party to whom it has been addressed.
22. RIGHTS OF THIRD PARTIES
(A) A person who is not a party to the Assignment shall have no rights under the Contracts (Rights of Third Parties) Act (Cap. 53B) to enforce or enjoy the benefit of any term of the Assignment except and to the extent (if any) that the Assignment expressly provides for the Contracts (Rights of Third Parties) Act (Cap. 53B) to apply to any of the terms.
(B) Notwithstanding any of the terms herein, the consent of any third party is not required for any rescission, variation (including any release or compromise any liability hereunder), termination and/or discharge of this Assignment.
23. DISCLOSURE
(A) Without prejudice to all rights of the Assignee to disclose information relating to the accounts of the Assignor, and for all purposes whatsoever whether under common law or under any of the provisions of the Banking Act (Cap. 19) (hereinafter referred to as the “Banking Act”), as amended or re-enacted from time to time, or otherwise, the Assignor hereby irrevocably (so long as any moneys or liabilities shall remain owing or unpaid to the Assignee hereunder or any Banking Facility or service is extended by the Assignee to the Assignor) expressly permits the Assignee, its officers, employees and agents, to disclose (whether with or without notice to the Assignor and whether orally or in writing) any information whatsoever concerning any matters or transactions in relation to the Banking Facilities and the account(s) (including any information whatsoever regarding the money or other relevant particulars of any account) which the Assignor now has or may hereafter have with the Assignee:-
(i) to any guarantor (which expression shall hereinafter include but not be limited to any surety or obligor or any owner of any property mortgaged or charged to the Assignee as security for the moneys secured or intended to be secured hereby) for the Banking Facilities for any purposes relating to the Banking Facilities and any security therefor;
(ii) to any chargee or mortgagee or proposed or purported chargee or mortgagee of or any other person having or claiming any interest in the Mortgaged Property or any person in favour of whom the Assignor is proposing to create or grant an interest in the Mortgaged Property for the purpose of seeking any consent for the creation or variation of any interest in or increasing the amount of moneys and liabilities secured or to be secured by any encumbrance over the Mortgaged Property or in connection with any security sharing arrangements relating to the Mortgaged Property or any enforcement of any security or any sale transfer disposition or any other dealing by any person whatsoever over or of or with the Mortgaged Property;
(iii) to the Commissioner of Stamp Duties, Registrar of Titles, Registrar of Deeds and/or any other government officials or departments or relevant bodies to whom the Assignee deems fit to disclose information, for purposes in connection with stamping (or assessment of stamp duties on), registering, lodging or filing any or all documents or conducting of searches or payment of taxes in connection with the Banking Facilities and any security therefor;
(iv) to any transferee or assignee or proposed transferee or assignee of any rights and obligations of the Assignee under or relating to the Banking Facilities and any security therefor for any purposes connected with the transfer or assignment or
18 Assignment of Rental Proceeds (Direct) proposed transfer or assignment of such rights and obligations;
(v) to any receiver appointed by the Assignee pursuant to its rights as mortgagee;
(vi) to the insurer, valuer or proposed insurer or valuer of the Mortgaged Property or any other asset held or proposed to be held by the Assignee as security for any liabilities of the Assignor to the Assignee from time to time for purposes related to insurance or valuation of the Mortgaged Property or asset;
(vii) to any solicitor acting for the Assignee, the Assignor, any guarantor or any other party involved with the Banking Facilities or any security therefor, in relation to the accounts of the Assignor, the Banking Facilities and any security given in connection therewith or any other party mentioned in this clause;
(viii) to any person or organisation participating in the provision of electronic or, without limitation, other services in connection with banking services utilised by the Assignor in connection with the Banking Facilities, whether in Singapore or outside Singapore for the purpose of the operation of the said services including but not limited to investigating discrepancies, errors or claims;
(ix) to the police or any public officer conducting an investigation in connection with any offence or in other circumstances. Those circumstances include the Assignee or the overseas service provider being compelled to disclose information pursuant to any court order, police investigation and criminal prosecution for tax or other offences;
(x) to credit or charge card companies in credit or charge card enquiries;
(xi) to any person engaged by the Assignee to collect any sums of money owing to the Assignee from the Assignor for any purposes in connection with the collection of such sums;
(xii) to any related corporation of the Assignee for purposes of data processing or for promoting to the Assignor products and services offered by such related corporation;
(xiii) to the Assignee’s printer, agent or storage or archival service provider (including but not limited to any provider of microfilm service or any electronic storage, archival or recording facility) for the purpose of printing, mailing, storage, microfilming and/or filing statements of accounts, or other documents, data or records;
(xiv) to any credit bureau approved or gazetted by the Monetary Authority of Singapore (“MAS”) of which the Assignee is a member or subscriber (or to its compliance committee) and/or any other member or subscriber that has been approved by the MAS;
(xv) to any member of the Assignee’s Group and any such persons as the Assignee may consider necessary (including persons described in the Assignee’s general policy on disclosure of information, as set out in statements, circulars, notices or other terms and conditions made available by the Assignee from time to time), and any person the Assignee considers necessary in connection with the Assignee’s exercising rights or dealing with rights or obligations under any arrangement with the Assignee (including in connection with preparatory steps such as negotiating with any potential assignee or potential participant of the Assignee’s rights or other person who is considering contracting with the Assignee in connection with an arrangement with the Assignee), for any and all purposes in connection with such facility and services and/or for the purpose of promoting, improving and furthering the provision of other financial services by the Assignee and any member of the Assignee’s Group to the Assignor generally and/or any other purposes.
For avoidance of doubt, it is hereby agreed and declared that the Assignee’s rights under
19 Assignment of Rental Proceeds (Direct) this clause shall be in addition and without prejudice to any other rights of disclosure which the Assignee may have under the Banking Act or any other statutory provisions or law and nothing herein is to be construed as limiting any of those other rights.
(B) The Assignor expressly:-
(i) authorise any credit bureau to disclose information to the Assignee and any of its members or subscribers to enable the Assignee and such members or subscribers to assess the Assignor’s creditworthiness;
(ii) agree to provide the Assignee with such assistance as may be necessary (including, where relevant, the provision of identification documents) to enable the Assignee to comply with its obligations under all applicable laws, rules and regulations to identify its customers for anti money laundering and counter-terrorism financing purposes.
Each of the credit bureau and each overseas service provider are entitled to the benefit of this Clause 23 and may enforce it against Assignor in accordance with the Contracts (Rights of Third Parties) Act (Cap. 53B).
24. PARTIAL INVALIDITY
If any one or more of the provisions contained in this Assignment shall be deemed invalid, unlawful or unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining provisions contained in this Assignment shall not in any way be affected or impaired but this Assignment shall be construed as if such invalid, unlawful or unenforceable provision had never been contained therein or in this Assignment.
25. DEFAULT IN PAYMENT OF EXPENSES
In addition to and not in derogation of the other provisions of this Deed, if the Assignor shall fail or refuse to pay any legal fees stamp duties valuation fees traveling expenses and other costs charges or expenses which the Assignor is liable and covenants to pay under any of the provisions of this Deed, the Assignee may at its discretion pay the same (but shall not be under any obligation to do so) and all moneys so paid by the Assignee together with interest at such rate(s) as stated in the Facility Agreement, or if no such rate(s) are stated, at such rate(s) as may be fixed by the Assignee from time to time and calculated with such periodic rests as the Assignee may decide (or such periodic rests as stated in the Facility Agreement (if any)), shall on demand be repaid to the Assignee by the Assignor and until repayment shall be a charge on the Assigned Property in addition to the other moneys hereby secured.
26. EVIDENCE
(A) The entries made in the accounts maintained by the Assignee in accordance with its usual practice shall be prima facie evidence of the existence and amounts of the obligations of the Assignor recorded in them (save for manifest error).
(B) A statement or certificate in writing signed by the Assignee concerned or its servant or any person nominated by the Assignee under the hand of any authorised officer of the Assignee certifying (i) the amount due at any time in respect of any moneys owing or payable by the Assignor to the Assignee and/or any liabilities incurred by it and payable by the Assignor to it under or by virtue of any terms, conditions or stipulations of this Deed, or (ii) any interest rate applicable to it, or (iii) its cost of funds shall (save for manifest error) be final and conclusive of the matters so certified and be binding upon the Assignor.
20 Assignment of Rental Proceeds (Direct) 27. RIGHT OF REVIEW
The Banking Facilities shall be reviewed from time to time and at any time by the Assignee and such review may result in the variation, reduction or cancellation of the Banking Facilities or any other banking facility and nothing in these presents contained shall be deemed to impose on the Assignee any obligation either at law or in equity to make or continue to make any advances to the Assignor.
28. TAXES
(A) All sums payable by the Assignor under this Assignment shall be paid (i) free of any restriction or condition, (ii) free and clear of and (except to the extent required by law) without any deduction or withholding on account of any taxes, levies or any other charges whatsoever (including but not limited to any goods and services tax) present or future and (iii) 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.
(B) If the Assignor or any other person is required by law to make any deduction or withholding on account of any such taxes, levies, charges or other amount from any sum paid or payable by the Assignor to the Assignee under this Assignment or the Assignee (or any person on its behalf) is required by law to make any deduction or withholding from, or (except on account of tax on the overall net income of the Assignee) any payment on or calculated by reference to the amount of, any sum received or receivable by the Assignee under this Assignment:
(i) the Assignor shall notify the Assignee of any such requirement or any change in any such requirement as soon as the Assignor become aware of it;
(ii) the Assignor shall pay any such taxes, levies, charges or other amount before the date on which the penalties attach thereto, such payment to be made, if the liability to pay is imposed on the Assignor, for the Assignor’s account, or otherwise on behalf of and in the name of the Assignee;
(iii) the sums payable by the Assignor shall (except, in the case of any such payment, to the extent that its amount is not ascertainable when that sum is paid) be increased to the extent necessary to ensure that, after the making of that deduction, withholding or payment, the Assignee receives on the due date and retains (free from the liability in respect of any such deduction, withholding or payment) a net sum equal to what it would have received and so retained had no such deduction, withholding or payment been required or made; and
(iv) within fourteen (14) days after paying any sum from which the Assignor is required by law to make any deduction or withholding, and within fourteen (14) days after the due date of payment of any taxes, levies, charges or the amount which the Assignor is required by Clause 28(B)(ii) above to pay, the Assignor shall deliver to the Assignee evidence satisfactory to the Assignee of such deduction, withholding or payment and of the remittance thereof to the relevant taxing or other authority.
(C) Without prejudice to the generality of the foregoing, in the event that any goods and services tax or any other taxes, levies or charges whatsoever now or hereafter required by law to be paid on or in respect of any sums payable to the Assignee or any other matters under or relating to this Assignment or the Secured Debt, the same shall (except to the extent prohibited by law) be borne by the Assignor and the Assignor shall pay to the Assignee on demand a sum equivalent to the amount of such goods and services tax or other taxes, levies or charges (or such part thereof which the law does not prohibit the Assignee from collecting from the Assignor) less any such part thereof as has been paid by the Assignor under Clause 28(B), in addition to all other sums payable to the Assignee under this Assignment.
21 Assignment of Rental Proceeds (Direct) (D) If the Assignee determines that, as a result of (i) the introduction of or any change in, or in the interpretation or application of any law or (ii) compliance by it with any directive of any agency of any state:
(i) the cost to the Assignee of maintaining all or any part of the Secured Debt and/or of making, maintaining or funding all or any part of any drawdown of the Secured Debt or overdue sum is increased; and/or
(ii) any sum received or receivable by the Assignee under this Assignment or the effective return to it under this Assignment is reduced (except on account of tax on its overall net income); and/or
(iii) the Assignee makes any payment (except on account of tax on its overall net income) or foregoes any part of any interest or fee or other return on or calculated by reference to the amount of any sum received or receivable by it under or any other matter relating to this Assignment the Assignor shall indemnify the Assignee against that increased cost, reduction, payment or foregone interest or fee or other return and, accordingly, shall from time to time on demand (whenever made) pay to the Assignee the amount certified by it to be necessary so as to indemnify it.
(E) Without prejudice to any other rights and remedies of the Assignee, in respect of any amount required to be paid by the Assignor under this clause which is not paid on the due date(s), additional interest calculated with such periodic rests and at such rate or rates determined by the Assignee may be charged on such overdue sums. In addition, the Assignor shall indemnify the Assignee for and (without prejudice to the Assignee's other rights and remedies), the Assignee shall have the right to debit the Assignor’s account with all sums required to be paid by the Assignor under this clause (including interest thereon) in such manner as the Assignee may prescribe from time to time, notwithstanding that such debiting may result in the Assignor’s account becoming overdrawn.
29. NO OBLIGATION TO ADVANCE
The Assignee shall be under no obligation whatsoever to advance or continue to advance any part of the Secured Debt to or for the benefit of the Assignor if the Assignor is in breach of any covenants, undertakings, stipulations, provisions, terms and conditions herein contained and on the part of the Assignor to be performed and observed and further unless and until all legal documentation pertaining to the Secured Debt as may be required by the Assignee shall have been completed to the satisfaction of the Assignee.
30. GOVERNING LAW
(A) The Assignment shall be governed and construed in all respects in accordance with the laws of the Republic of Singapore;
(B) All parties to this Assignment shall and do hereby submit to the non-exclusive jurisdiction of the Courts of the Republic of Singapore in all matters connected with the Assignment PROVIDED ALWAYS that submission to the jurisdiction of the Courts of the Republic of Singapore shall not preclude the Assignee from commencing proceedings in the courts of any other country.
22 Assignment of Rental Proceeds (Direct) SCHEDULE 1
THE MORTGAGED PROPERTY
(Description of the Mortgaged Property)
The Whole of Lot(s) of together with the building erected thereon and known as ______Singapore ______
23 Assignment of Rental Proceeds (Direct) SCHEDULE 2
NOTICE OF ASSIGNMENT TO TENANT From : To : [Tenant]
[Date]
Dear Sirs,
Re: ("Mortgaged Property")
1. I/We refer to the [tenancy agreement] (the "Tenancy Agreement”) dated [ ] between myself/ourselves and yourselves in relation to the mortgaged property.
2. I/We hereby give you notice that by, an assignment (the "Assignment") dated [ ] made between (1) myself/ourselves, and (2) The Hongkong and Shanghai Banking Corporation Limited (the "Assignee"), I/we have assigned absolutely to the Assignee all my/our rights, title and interest under the Tenancy Agreement (including, but without prejudice, all moneys (if any) from time to time payable under the Tenancy Agreement by you.
3. We hereby irrevocably authorise and instruct you to pay all monies now or at any time due owing and payble by me/us under or by virtue of the Tenancy Agreement to my/our Account No. [ ] maintained with the Assignee until you receive notice from the Assignee whereupon you shall pay all such amounts to the Assignee in accordance with the payment instructions set out in such notice.
4. I/We shall remain liable to perform my obligations under the Tenancy Agreement and the Assignee shall not assume any obligation to perform the obligations imposed on me/us thereby.
5. This notice and the instructions herein contained are irrevocable and may not be revoked and modified or varied without the consent in writing of the Assignee. Yours faithfully,
By : ______Name : cc. The Hongkong and Shanghai Banking Corporation Limited
24 Assignment of Rental Proceeds (Direct) SCHEDULE 3
ACKNOWLEDGEMENT OF NOTICE OF ASSIGNMENT FROM TENANT
From : [Tenant] [Address]
To : “The Hongkong and Shanghai Banking Corporation Limited (as Assignee)”
Date :
Dear Sirs
Re : [ ]
I/Re : Unit [ ]
We hereby acknowledge receipt of a notice of assignment dated [ ] from [Name of Assignor] ] in respect of the above unit in favour of yourselves and confirm that I/we will comply with the directions to me/us therein contained.
Yours faithfully
...... [Tenant]
SCHEDULE 4
25 Assignment of Rental Proceeds (Direct) NOTICE OF ASSIGNMENT TO RECEIVING BANK
From:
To: The Hongkong and Shanghai Banking Corporation Limited (as Receiving Bank)
Dear Sirs,
Re: Account Number [ ]
I/We hereby give you notice that by an assignment (the “Assignment”) dated [ ] made between myself/ourselves and The Hongkong and Shanghai Banking Corporation Limited (the "Assignee "), I/we have charged to the Assignee and have assigned absolutely to the Assignee all my/our rights, title and interest in and to, all moneys from time to time standing to my/our credit in Account Number [ ] maintained by me/us with you. Accordingly, you are authorised and directed to pay to the Assignee all such moneys in accordance with the payment instructions of the Assignee.
This notice and the instructions herein contained are irrevocable and may not be revoked or modified or varied without the consent in writing of the Assignee.
Please acknowledge to the Assignee the receipt of this notice in the form of the acknowledgement attached.
Dated .
Yours faithfully,
By : ______Name :
SCHEDULE 5
26 Assignment of Rental Proceeds (Direct) ACKNOWLEDGEMENT OF NOTICE FROM RECEIVING BANK
From: The Hongkong and Shanghai Banking Corporation Limited (as Receiving Bank)
To: The Hongkong and Shanghai Banking Corporation Limited (as Assignee)
Dear Sirs,
Re: Account Number [ ]
We hereby acknowledge receipt of a notice of assignment dated [ ] from [Name of Assignor] in favour of yourselves as Assignee and:-
(1) confirm that we have received no notice of any prior charge, assignment or other security over the moneys referred to in the notice;
(2) agree not to set-off to your prejudice the moneys referred to in the notice against any claim which we may have against [Name of Assignor]; and
(3) confirm that we will comply with the directions to us contained in the notice.
Dated .
Yours faithfully
For and on behalf of The Hongkong and Shanghai Banking Corporation Limited (as Receiving Bank)
By: ______
Name: ______
Title: ______
27 Assignment of Rental Proceeds (Direct) IN WITNESS WHEREOF this Assignment has been entered into on the day and year stated at the beginning of this Assignment.
The Assignor
SIGNED SEALED and DELIVERED by ) the said [ ] and ) [ ] ) in the presence of :- )
On this day of A.D. 20[ ] before me, [ ], an Advocate and Solicitor of the Supreme Court of the Republic of Singapore practising in Singapore personally appeared [ ] and [ ] who of my own personal knowledge I know to be the identical persons whose names [ ] and [ ] are subscribed to the within written instrument and acknowledged that they had voluntarily executed this instrument at Singapore.
Witness my hand
28 Assignment of Rental Proceeds (Direct)