PART II | TRANSFER OF PROPERTY, RIGHTS, OBLIGATIONS AND LIABILITIES |
| Transfer on Appointed Day |
3. Pursuant to section 98(1) of the Act, as from the Appointed Day —| (a) | the Assets of SembGas shall become the assets of PowerGas; and | | (b) | the Rights, Obligations and Liabilities of SembGas shall become the rights, obligations and liabilities of PowerGas. |
|
| Compensation for Transfer |
4. Compensation to SembGas for the Transfer shall comprise the following:| (a) | payment by PowerGas, in accordance with regulation 5, of the net book value of the Assets as of the Appointed Day using a 40-year depreciation period as determined by the appointed auditor; and | | (b) | payment by the Authority, in accordance with regulation 6, of $35 million. |
|
5.—(1) This regulation shall apply in relation to regulation 4(a).(2) Payment of the net book value of the Assets specified in regulation 4(a) shall be made as follows:| (a) | PowerGas shall, on the Appointed Day, pay to SembGas 98% of the net book value of base assets as of the Appointed Day using a 40-year depreciation period, determined in accordance with the letter dated 21st July 2008 from the appointed auditor to SembGas and PowerGas; | | (b) | where there is a difference between the Assets and the base assets referred to in sub-paragraph (a), whether as a result of any addition, removal or substitution, SembGas shall —| (i) | no later than 14 days after the Appointed Day, require the appointed auditor to determine the net book value of the Assets as of the Appointed Day using a 40-year depreciation period; and | | (ii) | immediately upon SembGas’ receipt of the determination of the appointed auditor referred to in sub-paragraph (i), provide PowerGas with a copy of the same; |
| | (c) | where the net book value of the Assets determined under sub-paragraph (b)(i) exceeds the amount specified in sub-paragraph (a), PowerGas shall pay the difference to SembGas within 5 business days of PowerGas’ receipt from SembGas of a copy of the determination of the appointed auditor referred to in sub-paragraph (b)(i); and | | (d) | where the amount specified in sub-paragraph (a) exceeds the net book value of the Assets determined under sub-paragraph (b)(i), SembGas shall refund to PowerGas the difference within 5 business days of the date SembGas received the determination of the appointed auditor referred to in sub-paragraph (b)(i). |
|
| (3) PowerGas shall make the payment referred to in paragraph (2)(a) and the payment referred to in paragraph (2)(c), if any, by electronic transfer to such bank account maintained with a bank licensed by the Monetary Authority of Singapore as SembGas may specify in writing. |
| (4) SembGas shall make the refund referred to in paragraph (2)(d), if any, by electronic transfer to such bank account maintained with a bank licensed by the Monetary Authority of Singapore as PowerGas may specify in writing. |
| (5) If any person fails to comply with paragraph (2)(a) or (c), that person shall be guilty of an offence and shall be liable on conviction to a fine not exceeding 10% of the annual turnover of PowerGas’ gas business ascertained from its latest audited accounts, or an amount not exceeding $1 million, whichever is the higher, or to imprisonment for a term not exceeding 12 months or to both and, in the case of a continuing offence, to a further fine not exceeding $100,000 for every day or part thereof during which the offence continues after conviction. |
| (6) If any person fails to comply with paragraph (2)(b) or (d), that person shall be guilty of an offence and shall be liable on conviction to a fine not exceeding 10% of the annual turnover of SembGas’ gas business ascertained from its latest audited accounts, or an amount not exceeding $1 million, whichever is the higher, or to imprisonment for a term not exceeding 12 months or to both and, in the case of a continuing offence, to a further fine not exceeding $100,000 for every day or part thereof during which the offence continues after conviction. |
| (7) The obligation of PowerGas to comply with paragraph (2)(a) or (c) shall be a duty owed to SembGas and any breach of such duty shall be actionable at the suit or instance of SembGas who shall have a right of action for relief in civil proceedings in a court under this regulation against PowerGas. |
| (8) The obligation of SembGas to comply with paragraph (2)(b) or (d) shall be a duty owed to PowerGas and any breach of such duty shall be actionable at the suit or instance of PowerGas who shall have a right of action for relief in civil proceedings in a court under this regulation against SembGas. |
|
6.—(1) This regulation shall apply in relation to regulation 4(b).| (2) The Authority shall, on the Appointed Day, pay to SembGas the amount specified in regulation 4(b). |
| (3) The Authority shall make the payment referred to in paragraph (2) by electronic transfer to such bank account maintained with a bank licensed by the Monetary Authority of Singapore as SembGas may specify in writing. |
|
| Delivery and continuing obligation to provide documents and information |
7.—(1) SembGas shall, on the Appointed Day, deliver to PowerGas, at Tiong Bahru District Office, 950 Tiong Bahru Road, Singapore 158793, the following:| (a) | the Assets (to the extent they are capable of actual or constructive delivery); and | | (b) | the documents specified in Part II of the First Schedule, or copies thereof as may be agreed between SembGas and PowerGas. |
| (2) SembGas shall effect delivery of the Assets not capable of actual or constructive delivery by making the Assets available to PowerGas on the Appointed Day. |
| (3) SembGas shall, for a period of 12 months commencing on the Appointed Day, provide PowerGas with such documents and information (other than the documents referred to in paragraph (1)(b) and any information contained therein) as PowerGas may reasonably require for the matters referred to in paragraph 1(d) of the directions issued by the Minister on 10th March 2008 under section 101 of the Act. |
| (4) If any person fails to comply with paragraph (1), (2) or (3), that person shall be guilty of an offence and shall be liable on conviction to a fine not exceeding 10% of the annual turnover of SembGas’ gas business ascertained from its latest audited accounts, or an amount not exceeding $1 million, whichever is the higher, or to imprisonment for a term not exceeding 12 months or to both and, in the case of a continuing offence, to a further fine not exceeding $100,000 for every day or part thereof during which the offence continues after conviction. |
| (5) The obligation of SembGas to comply with paragraphs (1), (2) and (3) shall be a duty owed to PowerGas and any breach of such duty shall be actionable at the suit or instance of PowerGas who shall have a right of action for relief in civil proceedings in a court under this regulation against SembGas. |
|
| Limitation on claims on SembGas Warranties |
8.—(1) PowerGas has not, other than the SembGas Warranties, relied on any representation, warranty, promise, projection or forecast given by SembGas or any person on SembGas’ behalf.| (2) Any claims by PowerGas in respect of any SembGas Warranties shall be subject to the limitations specified in the Second Schedule. |
| (3) If PowerGas fails to comply with paragraph 5 of the Second Schedule in relation to any breach of the SembGas Warranties, PowerGas shall not be entitled to claim from SembGas any loss or damage suffered by PowerGas arising from that breach. |
|
9.—(1) Notwithstanding anything in the Property Tax Act (Cap. 254), SembGas shall be liable for all property tax on the Assets up to and including the day immediately before the Appointed Day.| (2) PowerGas shall pay such stamp duty as may be assessed on the Transfer and on any agreement, deed or other document entered into or transferred in connection with or pursuant to the Transfer. |
| (3) Subject to paragraphs (1) and (2), SembGas and PowerGas shall each be liable for any tax imposed on it as a result of the Transfer (including, for the avoidance of doubt, any income tax). |
| (4) Where any party is liable under this regulation to pay any tax or duty, that party shall be liable to indemnify the other party against any costs, losses or liabilities incurred by that other party as a result of the first-mentioned party’s failure to pay such tax or duty by the due date for payment, or (in the case of any stamp duty payable) its failure to submit any document for stamping within the period required under any written law. |
| (5) PowerGas shall pay all registration fees as may be assessed on the Transfer and on any agreement, deed or other document entered into or transferred in connection with or pursuant to the Transfer, and shall be liable to indemnify SembGas against any costs, losses or liabilities incurred by SembGas as a result of any failure by PowerGas to pay such fees by the due date for payment or to submit the agreement, deed or other document for registration within the period required under any written law. |
|
|