THIS AGREEMENT Is Made the Between
2
THIS AGREEMENT is made the [] Between:-
(1) [] (Company Registration No. []), a company incorporated in Singapore and having its registered office at [] (hereinafter called "the Borrower") of the one part; and
(2) OVERSEACHINESE BANKING CORPORATION LIMITED, a company incorporated in Singapore and having its registered office at No. 65 Chulia Street #09-00 OCBC Centre, Singapore 049513 (hereinafter called "the Bank") of the other part.
WHEREAS:-
At the request of the Borrower, the Guarantor and the Shareholder (both as hereinafter defined) the Bank has agreed to make available to the Borrower, on and subject to the terms and conditions hereinafter appearing the Facility upon the security of the Mortgage, the Assignment of Sale Proceeds, the Assignment of Rental Proceeds, the Assignment of Building Contracts, the Assignment of Performance Bonds, the Assignment of Insurances, the Guarantee, the Deed of Subordination and the Shareholder and Director Undertaking (all as hereinafter defined) and subject to the terms and conditions hereinafter appearing.
NOW THIS AGREEMENT WITNESSETH as follows:
1. INTERPRETATION
1.1 Definitions: In this Agreement, except to the extent that the context requires otherwise:-
"Agreement" means and includes this Agreement as may from time to time be varied or supplemented or otherwise modified;
"Advance" means, depending on the context, an advance made or to be made by the Bank to the Borrower under this Agreement or the amount of such advance for the time being outstanding and "Advances" means two or more such advances.
"Architect" means any architect or any substitute architect for the time being engaged by the Borrower as the architect for the Project;
*["Assignment of Building Contracts" means the deed executed or to be executed (as the context may require) by the Borrower assigning all the Borrower's rights title, interest and benefits in, under and arising out of the Building Contracts security for the Total Indebtedness and the said deed as amended, supplemented or modified from time to time;]
*["Assignment of Insurances" means the deed executed or to be executed (as the context may require) by the Borrower assigning all the Borrower's rights title, interest and benefits in, under and arising out of the Insurances as security for the Total Indebtedness and the said deed as amended, supplemented or modified from time to time;]
*["Assignment of Performance Bonds" means the deed executed or to be executed (as the context may require) by the Borrower assigning all the Borrower's rights title, interest and benefits in, under and arising out of the Performance Bonds as security for the Total Indebtedness and the said deed as amended, supplemented or modified from time to time;]
*["Assignment of Rental Proceeds" means the deed executed or to be executed (as the context may require) by the Borrower assigning all the Borrower's rights title, interest and benefits in, under and arising out of the Tenancy Agreements as security for the Total Indebtedness and the said deed as amended, supplemented or modified from time to time;]
*["Assignment of Sale Proceeds" means the deed executed or to be executed (as the context may require) by the Borrower assigning all the Borrower's rights title, interest and benefits in, under and arising out of the Sale and Purchase Agreements as security for the Total Indebtedness and the said deed as amended, supplemented or modified from time to time;]
"Availability Period" means (i) in respect of the Land Loan Facility, the DCL Facility and the Guarantee Facility, upon the satisfactory completion of legal documentation up to [date] whichever is the earlier, or such later date as the Bank may at its sole discretion prescribe; (ii) in respect of the Construction Loan Facility the period when the preliminary works of the Project referred to in Clause 4.3(d) can commence up to the Final Repayment Date or until a demand shall be made by the Bank for the repayment of the Construction Loan Facility and interest thereon PROVIDED that if:-
(a) the Land Loan Facility and/or the DCL Facility and/or the Guarantee Facility and/or the Construction Loan Facility shall be fully drawndown, or
(b) the obligations of the Bank to make the same available shall cease pursuant to Clauses 11 and 18,
then the Availability Period in respect of the Land Loan Facility and/or the DCL Facility and/or the Guarantee Facility and/or the Construction Loan Facility (where applicable) shall terminate on such earlier occasion;
"Available Facility" means at any particular time, the amount of the Facility less the total amount of the Loans then outstanding;
"Bank" includes its successors and assigns;
"Banker's Guarantee" means any bank guarantee issued by the Bank pursuant to the Guarantee Facility;
"Beneficiary" means [] / Controller of Housing;
"Board Rate" means the prevailing board rate for Dollars for the time being laid down by the Bank;
"Borrower" includes its successors;
"Building Contract" means the building contract executed or to be executed (as the context may require) between the Borrower and the Contractor in respect of the construction of the Project and the said agreement as amended, supplemented or modified from time to time and Building Contracts means the plural thereof;
"Business Day" means any day on which the banks and the Bank in Singapore are open for business [and which banks in the country of the Currency of Drawing are also open for business] but excluding Saturdays, Sundays and gazetted public holidays;
"Construction Costs" means the cost of construction of the Project estimated to be S$[] including the professional fees of the Borrower’s professional bodies and goods and services tax and the costs listed in Schedule 1 or such other expenses approved by the Bank and under the Project Account Rules;
"Construction Loan" means the aggregate principal amount for the time being drawndown and outstanding under the Construction Loan Facility;
"Construction Loan Facility" means the construction loan facility which shall not in the aggregate exceed S$[] or up to []% of the Construction Costs of the Project whichever is the lower, provided that the final Construction Costs shall not be more than S$[] including the professional fees of the Borrower’s professional bodies and goods and services tax, otherwise the Construction Loan Facility shall be reduced to []% of the final Construction Costs, or such other reduced or lesser amount as the Bank may at its sole discretion prescribe extend or to be extended (as the context may require) by the Bank to the Borrower on the terms and conditions of this Agreement;
"Contractor" means the contractor and any substitute contractor for the time being appointed as the main contractor for the Project;
"Controller of Housing" means the Controller of Housing appointed under Section 3 of the Housing Developers Act;
*["Cost of Funds" means the cost (whether incurred or not) to the Bank in funding or taking deposits in Dollars in the Singapore interbank market to an amount comparable to each Advance of the Facility together with any other costs occasioned by or attributable to complying with reserves, liquidity, deposit or other requirements imposed by the Monetary Authority of Singapore or any relevant authority or authorities, as determined by the Bank, which determination shall, in the absence of manifest error, be final and conclusive on the Borrower.]
"Cost Overruns" means the cost in excess of the sum of S$[] including the professional fees of the Borrower’s professional bodies and goods and services tax or such sum as may be determined by the Bank being the estimated total Construction Costs for the completion of the Project;
"Currency of Drawing" means the currency in which the Drawing was advanced;
"CSC" means the certificate of statutory completion issued or to be issued (as the context may require) by the competent authority in respect of the Project;
"DCL" means the aggregate principal amount for the time being drawdown and outstanding under the DCL Facility;
"DCL Facility" means the Development Charge/Differential Premium loan facility granted by the Bank to the Borrower to finance up to []% of the Development Charge/Differential Premium in relation to the Project *[or for such other purpose as the Bank may in its absolute discretion allow] or in an amount not exceeding $[] whichever is the lower, extended or to be extended (as the context may require) by the Bank to the Borrower on the terms of this Agreement;
"Deed of Subordination" means the deed executed or to be executed (as the context may require) by the Subordinated Lender and the Borrower, subordinating the Subordinated Indebtedness to the Total Indebtedness in favour of the Bank and the said deed as amended, supplemented, or modified from time to time;
"Default Interest" means []% per annum above the Prime Rate;
"Development Charge" means the development charge (if any) levied on and paid/to be paid by the Borrower to the competent authority to develop the Project;
"Differential Premium" means the differential premium (if any) levied on and paid/to be paid by the Borrower to the competent authority;
"Developer's Licence" means the developer's licence (sale licence) issued or to be issued (as the context may require) by the competent authority in favour of the Borrower in respect of the Project and the sale of the Units;
"Director" means collectively the directors of the Borrower who are [] and the reference to "Director" shall mean anyone of them or all of them;
"Dollar" or “Dollars” and the sign "S$" mean the lawful currency for the time being of the Republic of Singapore;
"Drawing" and "Drawings" mean any, each or all (as the context may require) of the drawings made by the Borrower under the Land Loan Facility, the DCL Facility and/or the Construction Loan Facility;
"Event of Default" and "Events of Default" mean any, each or all (as the context may require) of the events mentioned in Clause 18;
"Face Amount" means with respect to any Banker's Guarantee, the total principal amount of the Bank's contingent liability thereunder at any given time and excluding such Banker’s Guarantees that have been discharged cancelled or prepaid;
"Facility" means (a) the Land Loan Facility, (b) the DCL Facility, (c) the Construction Loan Facility and (d) the Guarantee Facility;
"Facility Letter" means the letter of offer dated [] given by the Bank to the Borrower and any amendments, variations, modifications and supplements thereto and which expression shall unless otherwise stated include the Standard Terms and Conditions Governing Banking Facilities;
"Final Repayment Date" means [] years from the date of the first drawdown of the Land Loan Facility or [] months after the date of the issuance of TOP whichever is the earlier or at such other date or dates as may be extended by the Bank at its absolute discretion;
"Guarantee" means the guarantee(s) in form and substance satisfactory to the Bank executed or to be executed (as the context may require) by the Guarantor in favour of the Bank dated [] and the said guarantee as varied, amended, supplemented or modified from time to time;
"Guarantee Facility" means the guarantee facility comprising the Bank's agreement to issue Banker's Guarantee(s), on terms and conditions acceptable to the Bank, which shall not in the aggregate exceed S$[], in favour of the Beneficiary for *[the issuance of the Qualifying Certificate,] *[or for such other purpose as the Bank may in its absolute discretion allow] extended or to be extended (as the context may require) by the Bank to the Borrower on the terms of the Agreement;
*["Guarantor" means and include any or all of the following as well as the personal representative(s) and any person(s) deriving title thereunder or the successors-in-title:
(a) *[[] (NRIC No. []) / [] (Company Registration No. []), a company incorporated in the Republic of Singapore and listed on the SGX main board, and having its registered office at []];
(b) and any other person or company who/which may have executed/hereafter execute the Guarantee in favour of the Bank;]
"Housing Developers Act" means the Housing Developers (Control & Licensing) Act (Cap. 130);
"Indebtedness" means any obligation for the payment or repayment of money, whether present or future actual or contingent;
"Insurance" means all policies and contracts of insurance and any of them which are now or hereafter taken out by or on behalf of the Borrower, or under which the Borrower has an interest, relating to the Property and the Project and Insurances means the plural thereof;
"Interest Payment Date" means (1) where interest is computed based on Cost of Funds, SIBOR and Swap Rate, the last day of each Opted Interest Period except for interest periods of [6], [9] or [12] months (where applicable) whereby interest shall be paid on a [quarterly] basis; and (2) in all other cases, as provided for in Clause 5 hereof;
"Land" means all the land(s) situate at Lot(s) [] of Mukim / Town Subdivision [] at [] with a land area of [] square metres or thereabouts together with the building(s) erected thereon as more particularly described in Schedule 2;
"Land Loan" means the aggregate principal amount for the time being drawndown and outstanding under the Land Loan Facility;