EXHIBIT 10.12
FOUR MEDIA COMPANY ASIA PTE LTD (1)
AND
THE HONGKONG AND SHANGHAI (2)
BANKING CORPORATION LIMITED
---------------------------------
DEED OF DEBENTURE
---------------------------------
XXX & XXX
0 XXXXXXX XXX
XXXXX 00
UIC BUILDING
SINGAPORE 0106
CONTENTS
Clause Heading Page No.
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1. Interpretation 1
2. Covenant to pay 3
3. Security 3
4. Representations and Warranties 6
5. Covenants by the Borrower 7
6. Further Assurance 13
7. Powers of the Bank 13
8. Appointment and Powers of Receiver 15
9. The Bank, Receivers and Xxxxxxxxxx 00
00. Power of Attorney 19
11. Exclusion of the Borrower's Powers 20
of Leasing, etc.
12. Protections for The Bank and 20
Any Receiver
13. Continuing Security 21
14. Currency Clauses 21
15. Set-Off 22
16. Costs and Expenses 22
17. Miscellaneous 23
18. Law 24
THIS DEED OF DEBENTURE is dated 22 February 1995 and made BETWEEN:
(1) FOUR MEDIA COMPANY ASIA PTE LTD a company incorporated in SINGAPORE
and having its registered office at 0 Xxxxxx Xxxx #00-00, Xxxx Xxxx,
Xxxxxxxxx 0000 (the "Borrower"); and
(2) THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED a company
incorporated in Hong Kong and having a place of business at 00-X
Xxxxxxx Xxxx #00-00, XxxXxxxxx Xxxxx, Xxxxxxxxx 0923 (the "Bank").
WHEREAS:
(A) The Bank has agreed to make available to the Borrower a term loan
facility of up to S$16,950,000.00 on and subject to the terms and
conditions of the Facility Agreement dated 22 February 1995.
(B) The Borrower has agreed to execute this Deed in favour of the Bank to
secure (i) its obligations in respect of the Facilities and (ii) any
other obligations which it may hereafter from time to time incur to
the Bank on any other account whatsoever.
NOW THIS DEED WITNESSES as follows:
1. INTERPRETATION
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1.01 In this Deed:
"assets" means, in relation to the Borrower, all of its goodwill,
undertaking, property, assets, rights and revenues whatsoever;
"Bank" includes its successors and assigns;
"Business Day" means a day (other than a Saturday or a Sunday) on
which banks are open for business in Singapore;
"Borrower" includes its successors;
"Charged Assets" means the assets of the Borrower described in
Clauses 3.01 and 3.02;
"CLPA" means the Conveyancing and Law of Property Act (Cap 61);
"Debts" means the assets of the Borrower described Fifthly in
Clause 3.01;
"Facilities" means the term loan facility of up to Singapore Dollars
Sixteen Million and Nine Hundred and Fifty Thousand (S$16,950,000.00)
granted by the
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Bank to the Borrower in the sole and absolute discretion of the Bank
on the terms and conditions set out in the Facility Agreement dated
22 February 1995 (the "Facility Agreement") (as the same may be
amended, modified, varied or supplemented from time to time) between
the Bank and the Borrower;
"Fixed Charge Assets" means the assets of the Borrower First,
Secondly, Fourthly and Sixthly described in Clause 3.01;
"Floating Charge Assets" means the assets of the Borrower Thirdly,
Fifthly and Seventhly described in Clause 3.O1;
"Indebtedness" means any obligation for the payment or repayment of
money, whether present or future, actual or contingent;
"Receiver" means any one or more receivers, receivers and managers
and/or judicial managers appointed by the Bank in respect of the
Borrower or over all or any of the Charged Assets;
"Secured Obligations" means all moneys, obligations and
liabilities described in Clause 2; and
"Securities" means the assets of the Borrower described Secondly
Thirdly and Fourthly in Clause 3.01 and in Clause 3.02.
1.02 Clause headings and the table of contents are inserted for
convenience of reference only and shall be ignored in the
interpretation of this Deed.
1.03 In this Deed unless the context otherwise requires:
(a) references to Clauses are to be construed as references to
clauses of this Deed;
(b) references to (or to any specified provision of) this Deed or
any other document shall be construed as references to this
Deed, that provision or that document as in force for the
time being and as amended in accordance with the terms thereof
or, as the case may be, with the agreement of the relevant
parties and (where such consent is, by the terms of this Deed
or the relevant document, required to be obtained as a
condition to such amendment being permitted) the prior written
consent of the Bank;
(c) references to any statute, rule or regulation shall include such
statute, rule or regulation as from time to time amended,
repealed or replaced;
(d) words importing the plural shall include the singular and vice
versa; and
(e) references to a person shall be construed as including
references to an individual, firm, company, corporation,
unincorporated body of persons or any State or any agency
thereof.
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2. COVENANT TO PAY
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2.01 The Borrower hereby covenants with the Bank that it will pay to the
Bank when due (whether by demand, at maturity, by acceleration or
otherwise howsoever) all moneys and discharge all obligations and
liabilities whether actual or contingent now or hereafter due owing or
incurred to the Bank by the Borrower in whatever currency denominated
(whether alone or jointly, whether as principal or surety and whether
under the terms of or in connection with the Facilities or any
variation extension renewal or replacement of the terms thereof or on
any other account whatsoever or otherwise howsoever) including all
loans or advances from time to time made by the Bank to the Borrower
thereunder or thereon together with interest to date of payment at the
rates and upon such terms as may from time to time be agreed
commission valuation and other fees and other charges (on a full and
unqualified indemnity basis) and all legal and other costs charges and
expenses incurred by the Bank in relation thereto.
2.02 The Borrower shall pay interest (as well after or during as before any
demand or judgment or the liquidation or judicial management of the
Borrower) at the rate of six per cent. (6%) per annum above the rate
of interest from time to time publicly quoted by the Bank to be its
prime rate for loans in Singapore Dollars ("the Default Rate") or at
such other rate as the Bank may from time to time at its sole
discretion determine on any sum due and owing under this Deed or
hereby covenanted to be paid and secured hereby from the date on which
such sum falls due and owing until the date of actual receipt of such
sum (and all accrued interest) by the Bank and in the event of it not
being paid such interest shall be compounded with monthly rests or
such other periodic rests as the Bank may determine from time to time
in accordance with the usual practice of the Bank.
3. SECURITY
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3.01 Subject as hereinafter provided the Borrower as beneficial owner
hereby mortgages, charges and assigns to the Bank as a continuing
security for the payment and discharge of the Secured Obligations:
FIRST the immoveable property of the Borrower both present and
future and all buildings and fixtures (including trade
fixtures) from time to time on any such property all liens
charges options agreements rights and interests over land
both present and future and all plant machinery vehicles
computers and office and other equipment of the Borrower
both present and future and any substitution or replacement
thereof and all the accessories and parts pertaining
thereto and the full benefit of all warranties and
maintenance contracts for any of the same (excluding stock
in trade of the Borrower).
SECONDLY each and every of those stocks shares bonds and securities
of any kind whatsoever whether marketable or otherwise in
any
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company or entity registered in the name of the Borrower or
its nominee and all rights interests titles and benefits of
the Borrower both present and future thereto and therein and
incidental thereto the certificates or other documents of
title for which are deposited with the Bank by the Borrower
from time to time (but excluding any of the same pledged
pursuant to Clause 3.02).
THIRDLY each and every of those stocks shares bonds and securities
of any kind whatsoever whether marketable or otherwise in
any company or entity whether bearer or registered in the
name of the Borrower or its nominee including without
prejudice to the generality of the foregoing, any book-entry
securities and all rights interests titles and benefits of
the Borrower both present and future thereto and therein and
incidental thereto (but excluding any of the same pledged
pursuant to Clause 3.02 or mortgaged pursuant to Secondly
above).
FOURTHLY all the rights titles and benefits of the Borrower
whatsoever, present or future under or arising out of any
contract for the sale or purchase of any stocks shares bonds
or securities of any kind whatsoever in any company or
entity to which the Borrower may be a party (whether as
principal or agent) whether now or at any time in the
future (whether directly or through any agent or nominee)
together with all the Borrower's rights and title and
interest in and to any security for the performance of any
such contract and all claims, remedies and revenues accruing
to or received or derived by or available to the Borrower in
respect of any such contracts or security (but excluding any
book debts charged pursuant to the premises Fifthly
described).
FIFTHLY all book and other debts revenues and claims both present
and future (including things in action which may give rise
to a debt revenue or claim and the proceeds of such debts
revenues and claims) due or owing or which may become due or
owing to or purchased or otherwise acquired by the Borrower
and the full benefit of all rights and remedies relating
thereto including but not limited to any negotiable or non-
negotiable instruments guarantees indemnities debentures
legal and equitable charges and other security reservation
or proprietary rights rights of tracing liens and all other
rights and remedies of whatsoever nature in respect of the
same Provided always that no property mortgaged charged
pledged or assigned pursuant to Secondly, Thirdly or
Fourthly above or Clause 3.02 shall be mortgaged charged
pledged or assigned pursuant to this Clause Fifthly.
SIXTHLY the uncalled capital goodwill and all patent applications
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trade marks trade names registered designs and
copyrights and all licences and ancillary and connected
rights relating to the intangible property both present
and future of the Borrower.
SEVENTHLY the whole of the undertaking and all other property
assets and rights of the Borrower whatsoever and
wheresoever both present and future including but not
limited to the stock in trade of the Borrower wheresoever
and the premises First, Secondly, Fourthly and Sixthly
described (if and in so far as the charges thereon herein
contained shall for any reason be ineffective as fixed
charges) and all assets acquired after the date or dates
upon which the floating security hereby created
crystallises.
3.02 The Borrower hereby pledges and agrees to pledge to and in favour of
the Bank as a continuing security for the payment of all moneys and
the discharge of all obligations and liabilities hereby covenanted to
be paid or otherwise hereby secured each and every of those
instruments, bonds, certificates and other documents of any kind
whatsoever whether marketable or otherwise now or at any time
hereafter deposited by the Borrower with the Bank the title to and
property in which are capable of passing by delivery.
3.03 The Borrower hereby declares that the security hereby created shall
extend to and include all dividends and interest paid or payable on
or in respect of any of the Securities after the date of this Deed and
all stocks, shares, rights money or property accruing or offered by
way of redemption, bonus, preference, option or otherwise to or in
respect of the Securities and all allotments, accretions, offers,
rights, benefits and advantages whatsoever accruing, offered or
arising in respect of the same Provided that nothing in this Clause
3.03 shall be construed as placing on the Bank any obligation or
liability whatsoever in respect of any of the foregoing.
3.04 The charges created by this Deed shall rank:
(a) as regards the Fixed Charged Assets, as first fixed charges; and
(b) as regards the Floating Charge Assets, as first floating charges
(subject to Clause 3.05).
3.05 Save as permitted under this Deed, (i) if the Borrower mortgages,
charges, pledges or assigns or otherwise encumbers (whether by way of
fixed or floating security) any of the Floating Charge Assets or
attempts so to do without the prior consent in writing of the Bank or
(ii) if any person levies or attempts to levy any distress execution
sequestration or other process against any of the Floating Charge
Assets or (iii) if under any other security created by the Borrower
with the consent of the Bank, any floating charge is converted to a
fixed charge, or (iv) if the Bank gives notice to that effect to the
Borrower, then (and in each such case) the charge hereby created over
the assets the subject thereof shall
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automatically without notice operate as a fixed charge instantly such
event occurs.
3.06 The Borrower hereby agrees that the Bank may at any time without
notice after making demand on the Borrower for all or any sums hereby
secured and notwithstanding any settlement of account or other matter
whatsoever combine or consolidate all or any of the then existing
accounts of the Borrower including accounts in the name of the
Borrower jointly with others held by the Bank.
4. REPRESENTATION AND WARRANTIES
-----------------------------
4.01 The Borrower hereby represents and warrants to the Bank that:
(a) the Borrower is validly existing under the laws of Singapore and
the Borrower has power to execute, deliver and perform its
obligations under this Deed; all necessary action has been taken
to authorize the execution, delivery and performance of the same,
and this Deed constitutes valid and legally binding obligations
of the Borrower enforceable in accordance with its terms;
(b) the execution, delivery and performance by the Borrower of this
Deed will not result in any breach of or default under any
agreement, licence, consent or other instrument to which the
Borrower is a party or is subject or contravene any provision of
the Borrower's Memorandum or Articles of Association;
(c) with regard to any Charged Assets in existence at the date
hereof, the Borrower is, and with regard to any Charged Assets
coming into existence at any time hereafter, the Borrower will on
the date on which such Charged Assets come into existence be the
true and lawful owner thereof at law and in equity free from any
encumbrance, other than the charge, assignment or pledge created
or made hereunder;
(d) the Borrower has or will have (as the case may be) good right and
title to deposit, pledge, mortgage, charge, assign and/or
transfer the said Charged Assets, subject to the interests of the
Bank created hereunder;
(e) all contracts and rights comprising the property described
Fourthly and Fifthly in Clause 3.01 from time to time are and
will be in full force and effect;
(f) there are no proceedings involving a claim of a sum exceeding
S$500,000 pending before any court or to the knowledge of the
Borrower threatened against or affecting the Borrower and no
proceedings are before any government agency or administrative
body pending or to the knowledge of the Borrower threatened
against it or any of its assets other than those which, in the
opinion of the Bank, are of a frivolous or vexatious nature and
to the best of the knowledge and belief of the Borrower, the
Borrower
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has complied with all applicable statutes and regulations and
with the requirements of all governmental authorities having
jurisdiction over it;
(g) the certified true copies of the Memorandum and Articles of
Association and the Board Resolutions of the Borrower delivered
to the Bank are true and accurate copies of the corporate records
of the Borrower;
(h) the Borrower is not in default in the payment or performance of
any of its obligations for borrowed money;
(i) there is no provision in any existing mortgage, trust deed,
contract, licence, franchise, concession or agreement binding on
the Borrower which is being contravened or breached by the
execution of this Deed or by the Borrower's performance or
observance of any of its obligations hereunder; and
(j) no event or circumstance which constitutes or which will with the
giving of notice or lapse of time or both would constitute an
event described in Clause 7.01 has occurred and is continuing.
4.02 The representations and warranties in Clause 4.01 shall be deemed to
be repeated by the Borrower on and as of each day of the currency of
this Deed as if made with reference to the facts and circumstances
existing at each such date.
5. COVENANTS BY THE BORROWER
-------------------------
5.01 The Borrower hereby covenants with the Bank that during the
continuance of this security the Borrower will at all times:
(a) conduct and carry on its business and affairs in a proper and
efficient manner and in accordance with sound technical financial
industrial and managerial standards and practices including the
maintenance of adequate records with qualified personnel and in
accordance with its Memorandum and Articles of Association and
will not save with the prior written consent of the Bank make
substantial alteration in the nature of or mode of conduct of
that business and keep or cause to be kept proper books of
account relating to such business;
(b) observe and perform all covenants and stipulations from time to
time affecting its immovable property or the mode of user or
enjoyment of the same and not without the prior consent in
writing of the Bank enter into any onerous or restrictive
obligations affecting any such property or "develop" any such
property within the meaning of Section 13 of the Planning Act
(Chapter 232) as from time to time amended and any orders and
regulations thereunder nor do or suffer or omit to be done any
act matter or thing whereby any provision of any Act of
Parliament order or regulation from time to time in force
affecting any such property is
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infringed;
(c) observe and perform all covenants and stipulations from time to
time affecting its patents patent applications trade marks and
trade names registered designs and copyrights and all other
industrial or intangible property or any licence or ancillary or
connected rights from time to time relating to industrial or
intangible property and preserve maintain and renew when
necessary or desirable all such licences and rights;
(d) keep all its buildings and erections and all plant machinery
fixtures fittings vehicles computers and office and other
equipment and effects and every part thereof in good and
substantial repair and in good working order and not pull down or
remove or sell or otherwise dispose of any of the same without
the prior consent in writing of the Bank except in cases where
such dismantling pulling down or removal shall in the opinion of
the Borrower be rendered necessary by reason of the same being
worn out or damaged or advisable, in which case the Borrower
shall replace such fixtures and fittings with property of similar
nature and value. If the Borrower is at any time in default in
complying with this covenant the Bank shall be entitled but not
bound to repair and maintain the same with power for the Bank its
agent and their respective employees upon giving reasonable
notice thereof to the Borrower to enter any of the Borrower's
property during normal business hours at times convenient to the
Borrower acting in a reasonable manner for that purpose or to
inspect the same and any sum expended by the Bank shall be
repayable by the Borrower to the Bank on demand together with
interest at the Default Rate;
(e) at its own expense insure and keep insured all its property and
effects whatsoever of an insurable nature with insurers
previously approved by the Bank in writing against loss or damage
by fire civil commotion explosion earthquake subsidence landslip
heave aircraft and articles dropped therefrom flood storm
lightning burst pipes theft malicious damage impact and such
other risks and contingencies as the Bank shall from time to time
request to the full insurable value thereof from time to time
including architects, surveyors, engineers and all other
professional fees and demolition charges together with
consequential loss for three years in the joint names of the
Borrower and the Bank and with the policy containing such
provisions concerning and protecting the interests of the Bank as
the Bank may require (including without limitation, provisions
showing the Bank's interests as Mortgagee and prohibiting the
cancellation of the policy or policies without the insurers
having given not less than fourteen (14) days' prior written
notice to the Bank) and maintain such other insurance policies
(in the joint names of the Borrower and the Bank) containing like
provisions concerning and protecting the interests of the Bank
(including without limitation, a provision showing the Bank's
interests as Mortgagee) as are normally maintained by prudent
companies carrying on similar businesses and duly pay within one
week of the same becoming due all premiums and other moneys
necessary for effecting and keeping up such
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insurances and on demand produce to the Bank the policies of such
insurance and proof of such payments failing which the Bank may
but shall not be bound to take out or renew such insurances in
any sum which the Bank may think expedient and all moneys
expended by the Bank under this provision shall be reimbursed by
the Borrower on demand and shall until repayment be added to the
principal moneys hereby secured and bear interest at the Default
Rate from the date of payment by the Bank. All moneys to be
received by virtue of any insurance maintained or effected by the
Borrower (whether or not in pursuance of the obligations
hereunder) are to be payable to the Bank (and the Borrower hereby
charges all its rights and interest in and to all such monies to
the Bank and agrees that any such monies not paid by the insurers
directly to the Bank shall be held on trust for the Bank) and
shall at the option of the Bank be applied in replacing restoring
or reinstating the property or assets destroyed damaged or lost
(any deficiency being made good by the Borrower) or (save in the
case of leasehold premises) in reduction of the moneys
obligations and liabilities hereby secured or applied in such
manner as the Bank shall require;
(f) punctually pay and indemnify the Bank and any Receiver appointed
by the Bank against all existing and future rent rates taxes
duties charges assessments impositions and outgoings whatsoever
(whether imposed by agreement statute or otherwise and whether in
the nature of capital or revenue and even if wholly novel) now or
at any time during the continuance of this security payable in
respect of the Charged Assets or any part thereof or by the owner
or occupier thereof and comply with all laws regulations rules
and orders relating to the carrying on of its business on the
land and/or premises constituting the Charged Assets. If any such
sums shall be paid by the Bank or by any such Receiver the same
shall be repaid by the Borrower on demand with interest at the
Default Rate;
(g) take out and maintain a policy of insurance in respect of the
Borrower's liability or potential liability to its employees
under the common law or the Workmen's Compensation Act (Cap. 354)
or any statutory modification thereof for the time being in
force;
(h) furnish and provide the Bank with and permit the Bank to obtain
all such statements information explanation and data as the Bank
may reasonably require regarding the affairs operations
administration financial or other whatsoever state or condition
of the Borrower or any of the matters in this Clause mentioned;
(i) forthwith notify the Bank in writing of the occurrence if any of
the events mentioned in Clause 7.01;
(j) insofar as may be necessary amend its Memorandum and Articles of
Association so as to enable it to observe and perform all the
covenants undertakings terms stipulations conditions and other
provisions of this Deed;
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(k) get in and realise all Debts in the ordinary course of its
business and not (without the prior consent in writing of the
Bank) charge or otherwise dispose of nor save in the ordinary
course of business and on normal commercial terms release
exchange compound set off or grant time or indulgence or
otherwise deal (or purport so to do) with all or any of the same;
(l) observe and perform all its covenants and obligations under and
in respect of the Facilities;
(m) at all times permit the Bank to hold and retain the following:
(i) all deeds and documents of title relating to all immovable
and movable property hereby charged from time to time
belonging to the Borrower (and the insurance policies
relating thereto);
(ii) without prejudice to the generality of the foregoing, all
stocks and share certificates and documents of title
relating to the Securities and such deeds of transfer in
blank and other documents as the Bank may from time to
time require for perfecting its title to the Securities
(duly executed by or signed on behalf of the registered
holder) or for vesting or enabling the Bank to vest the
same in itself or its nominees or in any purchaser; and
(iii) all assurance policies from time to time effected by the
Borrower on the lives of key employees;
(n) hold any document referred to in Clause 5.01(m) other than
documents relating to the property Thirdly charged in Clause 3.01
which may not be deposited with the Bank at any time in trust for
the Bank and will keep the same safe and undefaced;
(o) forthwith and from time to time whenever so required by the Bank
give written notice of this Deed and the assignments herein
contained to any party to whom the Bank may require such notice
to be given in such form as the Bank may require (inter alia)
giving authority (irrevocable without the consent in writing of
the Bank) for such party to pay all moneys from time to time
payable by such party to the Bank under or by virtue of any
obligation due to the Borrower the benefit of which is hereby
charged or assigned to the Bank, and to issue and deliver all
certificates and other documents in respect of such obligation
direct to the Bank or to its order;
(p) do all things which may be necessary to cause all moneys agreed
to be paid to the Borrower to become payable;
(q) during the continuance of this security duly observe and perform
all covenants and stipulations by which it is bound affecting
the Securities and will duly and punctually pay all calls
instalments and other payments that
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may be made or become due in respect of any part of the
Securities. If any conditional or preferential or other right to
subscribe for shares or securities in or any other option shall
be offered with respect to any part of the Securities the
Borrower shall with the Bank's consent pay to the Bank any
necessary moneys required for the subscription or the exercise of
any such right or option. In default of the Borrower so doing the
Bank may make such payments and all sums paid by the Bank for
that purpose with interest thereon at the Default Rate shall be
repaid by the Borrower on demand and until paid in full shall be
secured by the Charged Assets;
(r) permit any officer of the Bank or other agents authorized by the
Bank upon its or their giving reasonable prior notice thereof
access to and the right of inspection during normal business
hours at times convenient to the Borrower acting in a reasonable
manner of all the premises, equipment, books, accounting and
other records of the Borrower for the time being subject to the
charges hereby created or any of them (and if the Bank reasonably
thinks fit) to have the same valued once a year at the expense of
the Borrower by a valuer appointed by the Bank;
(s) deliver to the Bank copies of the Borrower's monthly unaudited
financial statements not later than 30 days after the end of the
quarter to which they relate; and
(t) deliver to the Bank not later than 180 days after the close of
the financial year to which it relates:-
(i) the balance sheet and profit and loss account showing the
true position of the Borrower's affairs as at the close of
its financial year duly audited and certified by the
auditors for the time being of the Borrower which said
auditors shall have been approved by the Bank;
(ii) the Auditors' and Directors' Reports accompanying the said
balance sheet and profit and loss account; and
(iii) a copy of the Annual Return which the Borrower is required
by law to file with the Registrar of Companies.
The Borrower shall also from time to time give such other
information explanation and materials about the assets,
liabilities and affairs of the Borrower as the Bank may
reasonably require.
5.02 The Borrower hereby further covenants with the Bank that during the
continuance of this security the Borrower will not:
(a) save in the ordinary course of its business as now conducted by
it and on normal arms' length terms (without the prior consent in
writing of the Bank) lease rent let sublet hire out or part with
possession or custody of any of the property or assets comprised
in this security or grant any licence
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or permission to any person to occupy use or operate the same;
(b) (without the prior consent in writing of the Bank) form or
acquire any subsidiary or transfer lease or dispose of any
Charged Assets to any subsidiary save on terms previously
approved in writing by the Bank;
(c) do or cause or permit to be done anything which may in any way
depreciate jeopardise or otherwise prejudice the value to the
Bank of the security hereby charged;
(d) effect any form of reconstruction whatsoever including (without
prejudice to the generality thereof) amalgamation with any other
company, material change of shareholders or other schemes of
compromise or arrangement affecting its present condition except
with the prior written consent of the Bank;
(e) (without the prior consent in writing of the Bank) permit any
person:
(i) to be registered as proprietor under the Land Titles Act
(Chapter 157) or the Registration of Deeds Act (Chapter 269)
of any immovable property present or future and from time to
time hereby charged nor create or permit to arise any
overriding interest affecting such property; or
(ii) to become entitled to any proprietary right or interest
which might affect the value of any land fixtures or fixed
plant and machinery hereby charged;
(f) sell assign (by way of security or otherwise) discount factor
pledge charge or otherwise dispose of the Floating Charge Assets
or any part thereof or deal with the same otherwise than in
accordance with Clause 5.01(k);
(g) create or attempt to create or permit to subsist any mortgage
debenture charge or pledge upon or permit any lien or other
encumbrance (save a lien arising by operation of law in the
ordinary course of trading) to arise on or affect the Charged
Assets or any part thereof;
(h) part with possession transfer sell lease or otherwise dispose of
the Charged Assets or any part thereof or attempt or agree so to
do except (i) in the case of assets charged by way of floating
charge only which may be transferred, sold, leased or otherwise
disposed of at market value in the usual course of business as
now conducted and for the sole purpose of carrying on the
----
Borrower's business and (ii) in such manner as may be permitted
under Clause 5.01(k); and
(i) grant, issue or extend any guarantee or indemnity or enter into
any other form of contractual undertaking or arrangement of
similar effect in respect of any indebtedness or obligations,
actual or contingent, of any other
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person whatsoever except in the usual and ordinary course of
trading as now conducted by it and its subsidiaries and for the
purpose of the carrying on by it, or the relevant subsidiary, of
its business.
5.03 If the Bank receives notice of any subsequent mortgage charge
assignment or other disposition affecting the Charged Assets or any
part thereof or interest therein the Bank may open a new account for
the Borrower; if the Bank does not open a new account then unless the
Bank gives express written notice to the contrary to the Borrower the
Bank shall nevertheless be treated as if it had done so at the time
when it received such notice and as from that time all payments made
by or on behalf of the Borrower to the Bank shall be credited or be
treated as having been credited to a new account and shall not operate
to reduce the amount due from the Borrower to the Bank at the time
when the Bank received notice.
6. FURTHER ASSURANCE
-----------------
6.01 The Borrower shall at any time if and when reasonably required by the
Bank execute such further legal or other mortgage fixed or floating
charges or assignments in favour of the Bank as the Bank shall from
time to time require over all or any of the Charged Assets both
present and future including but not limited to all the immoveable
properties the Securities and the book and other debts revenues and
claims of the Borrower and all rights and remedies relating thereto
both present and future (including any vendor's lien) by way of
security for the payment and discharge of the Secured Obligations such
further mortgages charges or assignments to be prepared by or on
behalf of the Bank at the cost of the Borrower and to contain an
immediate power of sale without notice a clause excluding Section 21
and the restrictions contained in Section 25 of the CLPA and such
other provisions for the benefit of the Bank as the Bank may require.
7. POWERS OF THE BANK
------------------
7.01 The principal moneys hereby secured or any part thereof for the time
being outstanding and all other moneys hereby secured and all unpaid
interest which has accrued hereunder shall become immediately payable
and the security enforceable:-
(a) if the Borrower fails to pay any sum owing to the Bank within
three Business Days of the due date thereof or if payable on
demand within five Business Days of such demand being made by the
Bank;
(b) if the Borrower shall fail to perform or observe any of its
obligations hereunder and in any case (except where the Bank
considers that such failure is not capable of remedy) such
failure shall continue for a period of 14 days next following the
date of the service by the Bank on the Borrower of notice
requiring the same to be remedied; or
-14-
(c) if any representation or warranty made or deemed to be made by
the Borrower in or pursuant to this Deed or in any notice,
certificate, instrument, document or statement contemplated
hereby or thereby or made or delivered pursuant hereto or thereto
is or proves to have been untrue or inaccurate in any respect
considered by the Bank to be material; or
(d) if the Charged Assets or any part thereof are seized or
expropriated or are subject to compulsory purchase or acquisition
whether subject to compensation or not or is wholly or
substantially destroyed; or
(e) if in respect of the Borrower:-
(i) any Indebtedness shall become capable of being declared
due prematurely by reason of default in its obligations in
respect of the same or it shall fail to make any payment
in respect thereof on the due date for such payment, or
the security for any such Indebtedness shall become
enforceable and on account thereof the Bank is of the
opinion that the Borrower may be unable to meet its
obligations hereunder;
(ii) any application or petition shall be presented or any
order shall be made by a competent court or other
appropriate authority or any resolution shall be passed
for its liquidation, winding up or dissolution (as the
case may be) or any application or petition shall be
presented or order shall be made by a competent court or
other appropriate authority or any resolution passed for
the appointment of a liquidator, judicial manager, trustee
or similar official of it or of all or a substantial part
of its assets;
(iii) an encumbrancer takes possession of or a receiver is
appointed over its undertaking or the whole or any part of
its chattels, properties, assets, rights or revenues or
distress or execution or other similar process shall be
levied or enforced upon or sued out against a material
part of its properties or assets;
(iv) it shall stop payment to creditors generally or shall be
unable to pay its debts within the meaning of any
applicable legislation relating to insolvency, liquidation
or winding up, or enter into any composition or other
arrangement for the benefit of its creditors generally or
it shall cease substantially to carry on business;
(f) it in the opinion of the Bank, it shall become impossible or
unlawful for the Borrower to fulfil its undertakings or
obligations contained herein or for the Bank to exercise the
rights or any of them vested in it hereunder; or
(g) if anything shall be done or suffered or omitted to be done by
the Borrower which, in the reasonable opinion of the Bank,
imperils or may imperil the performance of the obligations or the
security created by this Deed; or
-15-
(h) if any legal proceedings suits or actions of any kind whatsoever
whether criminal or civil shall be instituted against the
Borrower which, in the opinion of the Bank, will materially and
adversely affect the Borrower's ability to perform its
obligations under this Deed, such opinion so formed being binding
and conclusive on the Borrower; or
(i) if the Borrower shall transfer or otherwise dispose of all or
substantially all of its assets to any person, firm or
corporation;
(j) if the Borrower is declared by the Minister to be a declared
company under the provisions of Part IX of the Companies Act (Cap
50); or
(k) if there shall occur a material adverse change in the business,
assets, or general condition of the Borrower or any change in the
shareholding of the Borrower; or
(l) if, in the opinion of the Bank, the security hereunder or the
business of the Borrower is in jeopardy; or
(m) if any event occurs which gives the Bank reasonable grounds for
believing that the Borrower may fail or be unable to perform or
comply with its obligations under this Deed.
7.02 Upon the occurrence of any of the above events, the Bank may exercise
without further notice and without any statutory restriction (in
particular the restrictions in Section 25 of the CLPA) and whether or
not a Receiver shall have been appointed all the powers conferred on
mortgages by the CLPA as hereby varied or extended and all the powers
and discretions hereby conferred either expressly or by reference on
the Bank or any Receiver without being liable as mortgagee in
possession unless the Bank and/or the Receiver shall have acted in
wilful default or fraudulently.
7.03 Section 21 of the CLPA shall not apply to this security or to any
security given to the Bank pursuant hereto.
7.04 The statutory powers of leasing conferred on the Bank shall be
extended so as to authorize the Bank to lease and make agreements for
leases at a premium or otherwise and to accept surrenders of leases
and grant options as the Bank shall consider expedient and without the
need to observe any of the provisions of Section 23 of the CLPA.
8. APPOINTMENT AND POWERS OF RECEIVER
----------------------------------
8.01 At any time after the principal moneys interests and other moneys
hereby secured shall have become payable pursuant to Clause 7, the
Bank may in writing under its Common Seal or by its Attorney or under
the hand of any authorized officer for the time being of the Bank
appoint any person to be a Receiver of the Charged
-16-
Assets or any part thereof (with power to authorize any joint Receiver
to exercise any power independently of any other joint Receiver) and
may from time to time fix his or their remuneration and may remove any
Receiver so appointed and appoint another in his place. If any part of
the Charged Assets is excluded from the Receiver's appointment, such
exclusion shall not prevent the Bank from subsequently appointing the
Receiver (or his substitute) to that part. A Receiver so appointed
shall be the agent of the Borrower and the Borrower shall be solely
responsible for his acts or defaults (other than acts of fraud or
wilful default) and for his remuneration and such Receiver so
appointed shall have all the powers conferred from time to time on
receivers by statute and in the case of the powers conferred by the
CLPA without the restrictions contained in Section 25 of the CLPA and
in addition power on behalf and at the cost of the Borrower
(notwithstanding liquidation of the Borrower) to do or omit to do
anything which the Borrower could do or omit to do in relation to the
Charged Assets or any part thereof and in particular (but without
limitation) any such Receiver may:
(a) enter into, take possession of collect and get in all or any of
the Charged Assets, exercise in respect of the Securities all
voting or other powers or rights available to the Borrower or to
the owner or a holder thereof generally in such manner as he may
think fit and give and receive such notices and bring defend or
discontinue any proceedings or submit to arbitration in the name
of the Borrower or otherwise as may seem expedient to him;
(b) carry on manage develop reconstruct amalgamate or diversify the
business of the Borrower or any part thereof or to enter into
arrangement with respect to the business of the Borrower or any
part thereof with any person or concur in so doing and for the
purpose of the said business to employ such agent managers
accountants servants and workmen upon such terms as to
remuneration or otherwise as the Receiver shall think proper;
perform vary or cancel obligations of the Borrower under any
contract on such terms as he may think fit; lease or otherwise
acquire and develop or improve properties or other assets without
being responsible for loss or damage unless such loss or damage
is occasioned by his own fraud or wilful default and raise or
borrow any money from or incur any other liability to the Bank or
others on such terms with or without security as he may think fit
and so that any such security may be or include a charge on the
whole or any part of the Charged Assets ranking in priority to
this security or otherwise;
(c) without the restrictions imposed by Section 25 of the CLPA or the
need to observe any of the provisions of Section 23 of the CLPA
sell by public auction or private contract let surrender or
accept surrenders grant licences or rescind or repudiate or
accept repudiation of or otherwise dispose of or deal with all or
any of the Charged Assets or concur in so doing in such manner
for such consideration and generally on such terms and conditions
as he may think fit with full power to convey let surrender
accept surrenders of or otherwise transfer or deal with such
Charged Assets in the
-17-
name and on behalf of the Borrower or otherwise and so that
covenants and contractual obligations may be granted and assumed
in the name of and so as to bind the Borrower (or other the
estate owner) if he shall consider it necessary or expedient so
to do and to vary any contract for sale and resell without being
answerable for any loss occasioned thereby unless such loss is
occasioned by his own fraud or wilful default. Any such sale
lease or disposition may be for cash debenture or other
obligations shares stock securities or other valuable
consideration and be payable immediately or by instalments spread
over such period as he shall think fit and so that any
consideration received or receivable shall ipso facto forthwith
be and become charged with the payment of all moneys obligations
and liabilities hereby secured. Plant machinery and other
fixtures fittings and equipment may be severed and sold
separately from the premises containing them and the Receiver may
apportion any rent and the performance of any obligations
affecting the premises sold without the consent of the Borrower;
(d) promote the formation of companies with a view to the same
purchasing leasing licensing or otherwise acquiring interests in
all or any of the Charged Assets or otherwise, arrange for such
companies to trade or cease to trade and to purchase lease
licence or otherwise acquire all or any of the Charged Assets on
such terms and conditions whether or not including payment by
instalments secured or unsecured as he may think fit;
(e) make any arrangement or compromise or enter into or cancel any
contracts which he shall think expedient and to do any other act
or thing which a receiver appointed under the CLPA would have
power to do;
(f) make and effect such repairs renewals and improvements to the
Charged Assets or any part thereof as he may think fit and
maintain renew take out or increase all insurances;
(g) appoint managers agents officers and employees for any such
purposes or to guard or protect the Charged Assets at such
salaries and commissions and for such periods and on such terms
as he may determine and dismiss the same;
(h) make calls conditionally or unconditionally on the members of the
Borrower in respect of uncalled capital as he may think fit;
(i) sign any document execute any deed and do all such other acts and
things as may be considered by him to be incidental or conducive
to any of the matters or powers aforesaid or to the realisation
of the Bank's security constituted by this Deed and which he
lawfully may or can do as agent of the Borrower and use the name
of the Borrower for all the above purposes;
(j) have access to and make use of the premises plant equipment and
accounting and other records of the Borrower and the services of
its staff for all or any of the above purposes;
-18-
(k) generally to do or cause to be done such acts or things which the
Borrower may have done in the ordinary conduct of its business as
well for the protection as for the improvement of the property
and assets comprised in this security.
8.02 The powers of appointment of a receiver hereunder shall be in addition
and without prejudice to any statutory or other powers of the Bank
hereunder or otherwise and so that such powers shall be and remain
exercisable by the Bank notwithstanding that an appointment under the
provisions hereof shall be subsisting or has been withdrawn.
9. THE BANK, RECEIVERS AND PURCHASERS
----------------------------------
9.01 All money received by the Bank or by any Receiver appointed by the
Bank in the exercise of any powers conferred by this Deed shall be
applied by the Receiver subject to the claims of all secured or
unsecured creditors (if any) ranking in priority to this Deed: -
FIRST, in payment of all costs charges and expenses of and incidental
-----
to the appointment of the Receiver and the exercise by him of all or
any of the powers aforesaid including the reasonable remuneration of
the Receiver and all outgoings properly paid by him.
SECONDLY, in or towards payment to the Bank of all interest accrued
--------
hereunder and remaining unpaid.
THIRDLY, in or towards payment to the Bank of all principal and other
-------
moneys due.
FOURTHLY, any surplus shall be paid to the Borrower.
--------
The Borrower agrees that the Bank may and the Bank is hereby
authorized to, apply all or any of the money received by the Bank or
by any Receiver appointed by the Bank in exercise of any powers
conferred by this Deed in or towards the provision of cash collateral
for the contingent obligations and liabilities of the Borrower to the
Bank hereby secured, which cash collateral may be held on such account
at such bank as the Bank may decide in its discretion and shall itself
be an asset of the Borrower charged pursuant to this Deed.
9.02 No purchaser or other person shall be bound or concerned to see or
enquire whether the right of the Bank or any Receiver to exercise any
of the powers hereby conferred has arisen or not or be concerned with
notice to the contrary or with the propriety of the exercise or
purported exercise of such powers.
9.03 The Borrower hereby covenants with the Bank on demand to pay all costs
charges and expenses incurred by the Bank or by any such Receiver or
which it or he shall properly incur in or about the enforcement
preservation or attempted
-19-
preservation of this security or of the Charged Assets or any of them
on a full indemnity basis with interest at the Default Rate from the
date of payment by the Bank or such Receiver save such costs, charges
and expenses resulting from the Bank's or such Receiver's fraud
negligence or wilful default. Any such Receiver shall be entitled to
remuneration appropriate to the work and responsibilities involved
upon the basis of charging from time to time adopted by the Receiver
in accordance with the current practice of his firm without the
restrictions imposed by Section 29(6) of the CLPA.
9.04 Neither the Bank nor any such Receiver shall be liable to account as
mortgagee in possession in respect of all or any of the Charged Assets
nor be liable for any loss upon realisation in connection therewith
for which a mortgagee in possession may be liable as such unless such
loss is occasioned by the Bank's and/or the Receiver's own fraud or
wilful default.
9.05 The Borrower hereby agrees to indemnify the Bank and any such Receiver
against all losses actions claims expenses demands or liabilities
whether in contract or otherwise now or hereafter incurred by it or
him or by any manager agent officer or employee for whose liability
act or omission the Bank or any such Receiver may be answerable (i)
for anything done or omitted in the exercise or purported exercise of
the powers herein contained unless the same is occasioned by the
Bank's and/or the Receiver's own fraud wilful default or negligence or
(ii) occasioned by any breach by the Borrower of any of its covenants
or other obligations to the Bank. The Borrower shall so indemnify the
Bank and any such Receiver on demand and shall pay interest on the
sums demanded at the Default Rate.
9.06 Any sale or other disposition by the Bank or by any of its nominees or
by a Receiver may be made upon such terms as the Bank or Receiver may
think fit.
9.07 The Borrower undertakes to give the Bank and the Receiver all
facilities necessary or expedient in the opinion of the Bank or the
Receiver for enforcing the security hereby created including such
possession or information as may be required for that purpose and the
Borrower shall do such acts and things and shall execute all such
assurances and instruments as the Receiver in the exercise of any of
the powers hereby conferred upon him shall reasonably require.
10. POWER OF ATTORNEY
-----------------
10.01 The Borrower by way of security hereby irrevocably appoints the Bank
and the persons deriving title under it and separately any Receiver
appointed hereunder severally to be its Attorney in its name and on
its behalf and as its act and deed or otherwise to execute and
complete in favour of the Bank or the Bank's nominees or of any
purchaser any documents which the Bank may require for perfecting its
title to or for vesting the Charged Assets both present and future in
the Bank or its nominees or in any purchaser, and otherwise generally
to sign seal deliver and otherwise perfect any such legal or other
mortgage or assignment referred to in Clause 6 and at any time after
the principal moneys interests and
-20-
other moneys hereby secured shall have become payable pursuant to
Clause 7 to receive all moneys hereby charged or assigned to the Bank
and to give an effectual discharge for such moneys and to take
proceedings and other steps for the recovery of all such moneys or any
part thereof) in the name of the Borrower or for the Bank and to make
allowances, agree accounts and give time or other indulgence to any
surety or other person liable and otherwise generally to sign seal and
deliver all such deeds assurances agreements and documents and to do
all such acts and things as may be required for the full exercise of
all or any of the powers hereby conferred or which may be deemed
expedient by the Bank or the Receiver on or in connection with any
sale lease disposition realisation or getting in by the Bank or any
such Receiver of the Charged Assets or any part thereof or in
connection with any other exercise of any power hereunder. The
Borrower hereby covenants with the Bank and any such Receiver that on
request the Borrower will ratify and confirm all deeds assurances
agreements documents acts and things and all transactions entered into
by the Bank or such Receiver or by the Borrower at the instance of the
Bank or such Receiver in the exercise or purported exercise of its or
his powers and the Borrower irrevocably acknowledges and agrees that
such power of attorney is inter alia given to secure the performance
of the obligations owed to the Bank and any such Receiver by the
Borrower.
11. EXCLUSION OF THE BORROWER'S POWERS OF LEASING ETC.
-------------------------------------------------
11.01 During the continuance of this security the statutory and any other
powers of leasing (including, without limitation those set out in
section 23(1) of the CLPA) letting entering into agreements for leases
or lettings and accepting or agreeing to accept surrenders of leases
or tenancies shall not in relation to the Charged Assets or any part
thereof be exercisable by the Borrower nor shall the Borrower part
with possession of the same or any part thereof nor confer any licence
right or interest to occupy nor grant any licence or permission to
assign underlet or part with possession of the same or any part
thereof nor agree suffer or permit any variation or addition to the
terms of any lease tenancy or licence other than in the ordinary
course of its business as now conducted by it and on normal arms'
length terms without in every such case obtaining the prior written
consent of the Bank.
12. PROTECTIONS FOR THE BANK AND ANY RECEIVER
-----------------------------------------
12.01 The Bank and any Receiver appointed by the Bank are hereby authorized
to compromise or settle any dispute arising out of or in connection
with the Charged Assets on such terms as the Bank or any such Receiver
may in its absolute discretion from time to time decide to do and the
Borrower shall keep the Bank and any such Receiver fully and
effectually indemnified from and against all actions losses claims
proceedings costs demands and liabilities whether in contract tort or
otherwise which may be suffered or incurred by the Bank or such
Receiver under or by virtue of the Charged Assets or any such
compromise or settlement in respect thereof (i) for anything done or
omitted in the exercise or purported
-21-
exercise of the powers herein contained unless the same shall be
occasioned by the Bank's and/or the Receiver's own fraud, wilful
default or negligence or (ii) occasioned by the breach by the Borrower
of any of its covenants or other obligations to the Bank.
12.02 Neither the Bank nor any Receiver shall be under any duty to make any
enquiry as to the nature or sufficiency of any payment received by it
(but immediately upon receipt of any payment shall notify the Borrower
of the amount received and relevant details of the obligations in
respect of which such payment was made) or to make any claim or take
any other action or do any deed act or thing for the purpose of
collecting moneys or enforcing any rights against any of the Charged
Assets nor shall they be under any liability to the Borrower for any
loss or damage occasioned by the exercise of the powers conferred by
this Deed or by any omission so to do unless the same shall be
occasioned by the Bank's and/or the Receiver's own fraud or wilful
default.
13. CONTINUING SECURITY
-------------------
13.01 This security shall be a continuing security notwithstanding any
settlement of account or other matters whatsoever and is in addition
to and shall not merge with or otherwise prejudice or affect any
contractual or other right or remedy or any guarantee lien pledge xxxx
mortgage or other security (whether created by the deposit of
documents or otherwise) now or hereafter held by or available to the
Bank and shall not be in any way prejudiced or affected thereby or by
the invalidity thereof or by the Bank now or hereafter dealing with
exchanging releasing varying or abstaining from perfecting or
enforcing any of the same or any rights which it may now or hereafter
have or giving time for payment or indulgence or compounding with any
other person liable.
13.02 Any settlement or discharge between the Bank and the Borrower shall be
conditional upon no security or payment to the Bank by the Borrower or
any other person being avoided or set aside or ordered to be refunded
or reduced by virtue of any provision or enactment relating to
bankruptcy, insolvency or liquidation for the time being in force and
the Bank shall be entitled to recover from the Borrower the value
which the Bank has placed upon such security or the amount of any such
payment as if such settlement or discharge had not occurred.
14. CURRENCY CLAUSES
----------------
14.01 All moneys received or held by the Bank or by a Receiver under this
Deed may from time to time be converted into such other currency as
the Bank considers necessary or desirable to cover the obligations and
liabilities actual or contingent of the Borrower in that other
currency at the then prevailing spot rate of exchange for purchasing
that other currency with the existing currency of the Bank (as
conclusively determined by the Bank). For the purposes of this Deed,
any amounts actually owing by the Borrower to the Bank in a foreign
currency shall
-22-
be converted into Singapore Dollars in accordance with the foregoing
provisions of this Clause 14.01 on the date on which any floating
charge is converted into a fixed charge pursuant to Clause 3.06.
14.02 If and to the extent that the Borrower fails to pay on demand any
amount hereby secured due on demand the Bank may in its absolute
discretion without notice to the Borrower purchase at any time
thereafter so much of any other currency as the Bank considers
necessary or desirable to cover the obligations and liabilities of the
Borrower hereby secured in such currency at the then prevailing spot
rate of exchange for purchasing that other currency with the existing
currency of the Bank in Singapore (as conclusively determined by the
Bank) and the Borrower hereby agrees to indemnify the Bank against the
full cost (including all costs charges and expenses) incurred by the
Bank for such purchase.
14.03 No payment to the Bank (whether under any judgment or court order or
otherwise) shall discharge the obligation or liability actual or
contingent of the Borrower in respect of which it was made unless and
until the Bank shall have received payment in full in the currency in
which such obligations or liability was incurred and to the extent
that the amount of any such payment shall on actual conversion into
such currency fall short of such obligation or liability actual or
contingent expressed in that currency the Bank shall have a further
separate cause of action against the Borrower and shall be entitled to
enforce the charges hereby created and the assignment hereby effected
to recover the amount of the shortfall.
15. SET-OFF
-------
The Borrower authorizes the Bank to apply (without prior notice) any
credit balance (whether or not then due) to which it is at any time
beneficially entitled on any account (whether or not expressed in the
same currency as the banking facilities or expressed in gold, silver
or other precious metal or otherwise) or debit such account at any
office or branch of the Bank (whether in Singapore or elsewhere) in or
towards satisfaction of any moneys owing to the Bank actual or
contingent provided that such debiting shall not constitute or be
deemed to be a payment of such sums of money due or owing (except to
the extent of any amount in credit in such account) or a waiver of any
event of default hereunder. For that purpose, the Bank is authorized
to use all or any part of any such credit balance to buy such other
currencies as may be necessary to effect such application. The Bank
shall not be obliged to exercise any of its rights under this Clause,
which shall be without prejudice and in addition to any right of set-
of, combination of accounts, lien or other right to which it is at any
time otherwise entitled (whether by operation of law, contract or
otherwise).
16. COSTS AND EXPENSES
------------------
16.01 The Borrower shall pay to the Bank on demand all expenses (including
legal fees on a solicitor and client basis, printing and out-of-pocket
expenses) incurred by
-23-
the Bank: (a) in connection with the negotiation, preparation,
execution and, registration of this Deed and of any amendment or
extension of or the granting of any consent or waiver under this Deed
and (b) in connection with, the enforcement of, or preservation of
any rights under this Deed or otherwise in respect of the moneys
secured by this Deed together with interest at the Default Rate from
the date on which such expenses were incurred to the date of payment
(as well after as before judgment) and all goods and services, value
added and other similar taxes payable on all such expenses.
16.02 The Borrower shall pay all stamp, documentary, registration or other
like duties (including any duties payable by the Bank) imposed on or
in connection with this Deed or the Charged Assets or any instrument
effecting or relating to the transfer or assignment of the Charged
Assets and all goods and services, value added and other similar taxes
payable on all such expenses and shall indemnify the Bank against any
liability arising by reason of any delay or omission by the Borrower
to pay such duties.
17. MISCELLANEOUS
-------------
17.01 No failure or delay by the Bank in exercising any right or remedy
shall operate as a waiver thereof nor shall any single or any partial
exercise or waiver of any right or remedy preclude its further
exercise or the exercise of any other right or remedy.
17.02 Nothing in this Deed shall (i) affect or prejudice any right of set-
off to which the Bank may be entitled as against the Borrower or (ii)
oblige the Bank to share with any other bank the proceeds of the
exercise of any such right of set-off.
17.03 Each of the provisions of this Deed are severable and distinct from
the others and if at any time one or more of such provisions is or
becomes invalid illegal or unenforceable the validity legality and
enforceability of the remaining provisions hereof shall not in any way
be affected or impaired thereby.
17.04 Any notice or demand for payment by the Bank hereunder shall without
prejudice to any other effective mode of making the same be deemed to
have been properly served on the Borrower if served on any one of the
Directors or on the Secretary of the Borrower or delivered or sent by
letter post or facsimile transmission to the Borrower at 00 Xxxxx Xxxx
Xxxxxx, Xxxxxxxxx 0000 or at such other address in Singapore as may be
notified to the Bank for such purpose. Any such notice or demand sent
by letter post shall be deemed to have been served on the addressee
when delivered personally or three days after it has been put in to
the post notwithstanding that it be undelivered or returned
undelivered and in proving such service it shall be sufficient to
prove that the notice or demand was properly addressed and posted. Any
notice or demand sent by telex or facsimile transmission on a Business
Day (being a day in Singapore other than a Saturday, Sunday or public
holiday) shall be deemed to have been served at the time of despatch
and, in the case of a telex, with confirmed answerback of the
addressee
-24-
appearing at the beginning and end of the communication. Any such
notice or demand or any certificate as to the amount at any time
secured hereby shall be conclusive and binding upon the Borrower if
signed by a Vice President or other duly authorized officer of the
Bank to which the sum demanded shall be due.
17.05 Any appointment or removal of a Receiver under Clause 8 and any
consents hereunder may be made or given by writing signed or sealed
by any successors or assigns of the Bank and the Borrower hereby
irrevocably appoints each of the same to be its Attorney in the terms
and for the purposes set out in Clause 10.
17.06 Any change in the constitution of the Bank or its absorption into or
amalgamation with any other person or the acquisition of all or part
of its undertaking by any other person shall not in any way prejudice
or affect its rights hereunder.
17.07 The Borrower may not assign its rights or obligations hereunder. The
Bank may assign all or any part of its rights or benefits and/or
transfer all or part of its obligations under this Deed to any person
and following any such assignment and/or transfer the Bank shall
notify the Borrower of the identity of the assignee or transferee and
all references in this Deed to the Bank shall be read and construed as
references to the Bank and such assignee and transferee to the extent
of their respective interests. In the case of a transfer of the Bank's
obligations the Borrower shall look only to the transferee for the
performance of the obligations of the Bank transferred. The Bank may
disclose to any potential assignee or transferee or any other person
with whom the Bank may consider entering into contractual relations in
relation to this Deed such information about the Borrower as the Bank
shall consider appropriate.
18. LAW
---
18.01 This Deed shall be governed by and construed in accordance with
Singapore law.
IN WITNESS whereof this Deed has been executed.
25
THE COMMON SEAL of )
FOUR MEDIA COMPANY ASIA PTE LTD ) [SEAL]
was hereunto affixed in the )
presence of:
/s/ Xxxxxx Xxxxxxx
Director
/s/ X. Xxxxxx
Director
SIGNED SEALED AND DELIVERED by )
as Attorney for THE HONGKONG AND )
SHANGHAI BANKING CORPORATION )
acting under a Power of Attorney )
dated the day of 11th May 1983 )
(a copy of which was deposited ) /s/ Xxxxxx Xxx
in the Registry, Supreme Court, ) --------------------
Singapore on the 23rd day of ) [SEAL]
June 1983 and registered as )
No. 2654 of 1983) in the )
presence of: )
/s/ Cheng Xxx Xxx
I, Xxxxxx Sng Su Ying an Advocate and Solicitor of the Supreme Court of
the Republic of Singapore practising in Singapore hereby certify that on the
21st day of February 1995 the Common Seal of FOUR MEDIA COMPANY ASIA PTE LTD was
duly affixed to the above written instrument at Singapore in my presence in
accordance with the regulations of the said Company (which regulations have been
produced and shown to me).
Witness my hand.
/s/ Xxxxxx Sng
- 26 -
On this 22nd day of February 1995 before me, Cheng Xxx Xxx an Advocate and
Solicitor of the Supreme Court of the Republic of Singapore practising in
Singapore personally appeared "Xxxxxx Xxx Ah Wan" the Attorney of THE HONGKONG
AND SHANGHAI BANKING CORPORATION LIMITED who of my own personal knowledge I know
to be the identical person whose name "Sgd Xxxxxx Xxx Xx Xxx" is subscribed
to the within written instrument and acknowledged that he had voluntarily
executed this instrument at Singapore.
Witnessed my hand.
/s/ Cheng Xxx Xxx
