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GENERAL ASSIGNMENT, 일반 위임 계약서, 영문 계약서 본문
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[NAME OF THE ASSIGNOR]
as Assignor
and
THE EXPORT-IMPORT BANK OF
as Lender
Relating to [type of the Vessel] vessel bearing
Dated [·], 20[·] |
contents
Clause Page
1. Definitions and Interpretations............................................................................. 1
2. Assignment........................................................................................................... 3
3. Notices.................................................................................................................. 4
4. Enforcement.......................................................................................................... 5
5. Receiver................................................................................................................ 6
6. Powers of Receiver............................................................................................... 7
7. Application of Proceeds........................................................................................ 9
8. Delegation............................................................................................................. 9
9. Further Assurances................................................................................................ 9
10. Power of Attorney.............................................................................................. 10
11. Miscellaneous...................................................................................................... 10
12. Release................................................................................................................ 10
13. Counterparts........................................................................................................ 11
14. Governing Law................................................................................................... 11
Schedule
1. Form of Notice and Acknowledgement of Assignment for the Shipbuilding Contract 12
2. Form of Notice and Acknowledgement of Assignment for the Refund Guarantee 17
Signatories to General Assignment................................................................................. 21
THIS DEED is dated [·], 20[·] between:
(1) [name of the Assignor] a company incorporated in [·], whose registered office is [·] (the Assignor); and
(2) THE EXPORT-IMPORT BANK OF
BACKGROUND:
(A) The Assignor enters into this Deed in connection with the Facility Agreement (as defined below).
(B) It is intended this document takes effect as a deed notwithstanding the fact that a party may only execute this document under hand.
IT IS AGREED as follows:
1. Definitions and Interpretations
1.1 Definitions
In this Deed:
Act means the Law of [·].
Assigned Contracts means:
(a) the Shipbuilding Contract; and
(b) the Refund Guarantee;
Assigned Rights means:
(a) all the Assignor's right, title and interest in, and powers under, the Shipbuilding Contract including, without limitation, those listed in Clause 2(b)(ii) and (iii);
(b) all moneys payable to the Assignor under the Shipbuilding Contract and in respect of any proceeds of arbitration under the Shipbuilding Contract and in respect of the insurance effected or to be effected by the Builder on behalf of the Assignor pursuant to the terms and provisions of the Shipbuilding Contract and all the Assignor's joint or other interest in connection with such insurances;
(c) all the Assignor's right, title and interest in, and powers under, the Refund Guarantee including, without limitation, those listed in Clause 2(b)(vi) to (viii) (inclusive); and
(d) all amounts payable to the Assignor under the Refund Guarantee.
Facility Agreement means the facility agreement for up to US$[·] dated on or about the date of this Deed between (among others) the Assignor as an Owner and the Lender.
Receiver means an administrative receiver, receiver and manager or receiver, in each case appointed under this Deed.
Refund Guarantee means the refund guarantee issued by the Refund Guarantor in favour of [AAA], as assigned to the Assignor pursuant to an assignment agreement dated [·], 20[·] made between the [AAA] and the Assignor pursuant to the Shipbuilding Contract and as acknowledged by the Refund Guarantor by its countersignature of the notice of assignment dated [·], or such other refund guarantee as may replace the same from time to time (with the approval of the Lender).
Security Assets means all assets of the Assignor which are the subject of any security created by this Deed.
Secured Liabilities means all present and future obligations and liabilities (whether actual or contingent owed in any capacity whatsoever) of the Owners to the Lender under each Finance Document to which the Assignor is or becomes a party.
Security Period means the period beginning on the date of this Deed and ending on the date on which all the Secured Liabilities have been unconditionally and irrevocably paid and discharged in full.
Shipbuilding Contract means the agreement between the Builder and [AAA] dated [·], 20[·], and which has been assigned to, and the obligations of which have been assumed by the Assignor pursuant to an assignment agreement dated [·], 20[·] and made between [AAA] and the Assignor, which assignment and assumption has been acknowledged by the Builder by its countersignature of the notice of assignment dated [·] pursuant to which the Builder agreed to build and deliver the Vessel to [AAA].
Vessel means the [·] vessel to be constructed in accordance with the Shipbuilding Contract with Hull Number [·].
1.2 Interpretation
(a) Capitalised terms defined in the Facility Agreement have, unless expressly defined in this Deed, the same meaning in this Deed.
(b) The provisions of Clause 1.2 (Construction) of the Facility Agreement apply to this Deed as if they were set out in full in this Deed except that references to the Facility Agreement are to be construed as references to this Deed.
(c) If the Lender considers that an amount paid by the Assignor or any Owner under a Finance Document is capable of being avoided or otherwise set aside on the liquidation or administration of the Assignor or otherwise, then that amount shall not be considered to have been irrevocably paid for the purposes of this Deed.
(d) A reference in this Deed to assets includes, unless the context otherwise requires, present and future assets.
As continuing security for the full and complete discharge of the Secured Liabilities and in consideration of the Lender agreeing to make each Loan under the Facility Agreement, the Assignor, with full title guarantee, assigns by way of security to the Lender absolutely:
(a) all the Assignor's rights, title and interest in or to
all of the Assigned Rights; and
(b) the Assigned Contracts including, without limitation:
(i) all the Assignor's powers under the Assigned Contracts;
(ii) the right to terminate the Assigned Contracts in accordance with their respective terms and to make all elections, statements and presentations and give all notices and confirmations which may be made or given by the Assignor thereunder;
(iii) the right of the Assignor to perform and compel performance of the Assigned Contracts in accordance with their respective terms;
(iv) the right to accept delivery of or to take title to the Vessel under the Shipbuilding Contract on behalf of the Assignor and to execute all documents necessary for acceptance of the Vessel;
(v) the right to be named as owner or buyer in all documents relating to delivery;
(vi) all the Assignor's rights to make demands under the Refund Guarantee;
(vii) the right to make all elections, statements and presentations and give all notices and confirmations which may be made or given by the Assignor under the Refund Guarantee; and
(viii) the right of the Assignor to perform and compel performance of the Refund Guarantee in accordance with its terms.
(c) Unless and until an Event of Default has occurred and is continuing, the Lender agrees that the Assignor may continue to exercise all its rights in respect of the Security Assets.
3.1 Shipbuilding Contract
The Assignor shall promptly give a notice of assignment substantially in the form set out in Part I of Schedule 2 to this Deed and shall procure that the Builder acknowledges receipt of the notice to the Lender substantially in the form set out in Part II of Schedule 2 to this Deed.
3.2 Refund Guarantee
The Assignor shall promptly give a notice of assignment substantially in the form set out in Part I of Schedule 3 to this Deed and shall procure that the Refund Guarantor acknowledges receipt of the notice to the Lender substantially in the form set out in Part II of Schedule 3 to this Deed.
4.1 Enforcement of Security
This security shall become immediately enforceable if an Event of Default has occurred and is continuing and the Lender gives notice to the Assignor in accordance with Clause 18.14 (Acceleration) of the Facility Agreement. The Lender shall thereafter be entitled without notice immediately or at any time while the Event of Default is continuing to put into force and exercise all the powers and remedies possessed by it according to law as mortgagee and chargee of the Security Assets as and when it may see fit and in particular:
(a) to exercise all the rights and remedies in foreclosure and otherwise given to the Lender by any applicable law;
(b) to exercise all or any of the Assigned Rights to the exclusion of the Assignor;
(c) to recover and collect all moneys payable under or in respect of the Security Assets and to give a good receipt for all or any of them on behalf of the Assignor;
(d) to take over or institute all such proceedings in connection with all or any of the Security Assets as the Lender in its absolute discretion thinks fit and to discharge, compound, release or compromise all or any of the Security Assets or claims in respect of the Security Assets;
(e) to sell all or any of the Security Assets by public auction or private contract, at any place in the world, with or without advertisement or notice to the Assignor, for cash or on credit and otherwise and upon such terms as the Lender in its absolute discretion may determine;
(f) to set off any moneys comprised in the Security Assets against such or any of the Secured Liabilities;
(g) to implement any contracts included in the Security Assets, or to agree with any other party to those contracts to determine the same on such terms and conditions as the Lender and that party may agree;
(h) to settle, arrange, compromise or submit to arbitration any accounts, claims, questions or disputes whatsoever which may arise in connection with the Security Assets or in any way relating to this Deed and execute releases or other discharges in relation to the Security Assets or this Deed;
(i) to bring, take, defend, compromise, submit to arbitration or discontinue any actions, suits or proceedings whatsoever, civil or criminal, in relation to the Security Assets; and
(j) to execute and do all such acts, deeds and things as the Lender may consider necessary or proper for or in relation to any of the above purposes.
4.2 Protection of third parties
No person (including a purchaser) dealing with the Lender or a Receiver or its or his agents will be concerned to enquire:
(a) whether the Secured Liabilities have become payable;
(b) whether any power which the Lender or the Receiver is purporting to exercise has become exercisable;
(c) whether any money remains due under the Finance Documents; or
(d) how any money paid to the Lender or to the Receiver is to be applied.
5.1 Appointment of Receiver
(a) In addition to the powers conferred above, at any time after the security created by this Deed shall have become enforceable, the Lender may appoint in writing a receiver or a receiver and manager (a Receiver) of all or any part of the Security Assets and remove a Receiver so appointed and appoint another in his stead and may from time to time fix the remuneration of a Receiver.
(b) The Lender may by instrument in writing delegate to any Receiver all or any of the rights, powers and discretions vested in it by this Deed.
(c) The Lender is not entitled to appoint a Receiver solely as a result of the obtaining of a moratorium (or anything done with a view to obtaining a moratorium) under the Insolvency Act 2000 except with the leave of the court.
(d) The Lender shall not be responsible for misconduct or negligence on the part of a Receiver.
(e) A Receiver shall be the agent of the Assignor and the Assignor shall be responsible for his acts, defaults and remuneration and liable on any contracts made by him.
5.2 Relationship with Lender
To the fullest extent permitted by law, any right, power or discretion conferred by this Deed (either expressly or impliedly) upon a Receiver in respect of the Security Assets may upon and at any time after the occurrence of an Event of Default be exercised by the Lender in relation to any of the Security Assets without first appointing a Receiver or notwithstanding the appointment of a Receiver.
6.1 General
(a) Each Receiver has, and is entitled to exercise, all of the rights, powers and discretions set out below in this Clause 6 and all such rights, powers and discretions conferred upon the Lender by this Deed in addition to those conferred by the Act on any receiver appointed under the Act and those conferred by the Insolvency Act 1986 or an administrative receiver appointed under the Insolvency Act 1986.
(b) If there is more than one Receiver holding office at the same time, each Receiver may (unless the document appointing him states otherwise) exercise all of the powers conferred on a Receiver under this Deed individually and to the exclusion of any other Receiver.
6.2 Possession
To the extent permitted by law, a Receiver may take immediate possession of, get in and collect any Security Assets.
6.3
To the extent permitted by law, a Receiver may sell, exchange, convert into money and realise any Security Asset by public auction or private contract and generally in any manner and on any terms which he reasonably thinks proper. The consideration for any such transaction may consist of cash, debentures or other obligations, shares, stock or other valuable consideration and any such consideration may be payable in a lump sum or by instalments spread over such period as he thinks fit.
6.4 Compromise
A Receiver may settle, adjust, refer to arbitration, compromise and arrange any claims, accounts, disputes, questions and demands with or by any person who is or claims to be a creditor of the Assignor or relating in any way to any Security Asset.
6.5 Legal Actions
A Receiver may bring, prosecute, enforce, defend and abandon all actions, suits and proceedings in relation to any Security Asset which may seem to him to be expedient.
6.6 Receipts
A Receiver may give valid receipts for all moneys and execute all assurances and things which may be proper or reasonable for realising any Security Asset.
6.7 Delegation
A Receiver may delegate his powers in accordance with Clause 8 (Delegation).
6.8 Other powers
A Receiver may:
(a) do all other acts and things which he may consider desirable or necessary for realising any Security Asset or incidental or conducive to any of the rights, powers or discretions conferred on a Receiver under or by virtue of this Deed; and
(b) exercise in relation to any Security Asset all the powers, authorities and things which he would be capable of exercising if he were the absolute beneficial owner of the same,
and may use the name of the Assignor for any of the above purposes.
All moneys received by the Lender or any Receiver in respect of the Security Assets after this security has become enforceable shall be applied by the Lender in or towards payment of the Secured Liabilities in the order prescribed by Clause 13.7 (Payments) of the Facility Agreement but without prejudice to the right of the Lender to recover any shortfall from the Assignor.
The Lender may delegate by power of attorney or in any other manner to any person any right, power or discretion exercisable by the Lender under this Deed. Any such delegation may be made upon the terms (including power to sub-delegate) and subject to any regulations which the Lender may think fit.
The Assignor shall take whatever action the Lender may reasonably require for the purposes of:
(a) perfecting or protecting the security intended to be created by this Deed; and
(b) facilitating the exercise of any right, power or discretion exercisable by the Lender in respect of any Security Asset.
(a) The Assignor, by way of security, irrevocably and severally appoints the Lender and any of its respective delegates or sub-delegates to be its attorney to take any action which the Assignor is obliged to take under this Deed (but which, prior to an Event of Default, the Assignor has failed, for whatever reason, to take).
(b) The Assignor ratifies and confirms whatever any attorney does or purports to do pursuant to the provisions of the power of attorney and to its appointment under this Clause 10.
11.1 Covenant to pay
The Assignor shall pay or discharge the Secured Liabilities in the manner provided for in the Finance Documents.
11.2 Continuing security
The security constituted by this Deed is continuing and will extend to the ultimate balance of all the Secured Liabilities, regardless of any intermediate payment or discharge in whole or in part.
11.3 Additional security
The security constituted by this Deed is in addition to and is not in any way prejudiced by any other security now or subsequently held by the Lender for any Secured Liability.
Upon the expiry of the Security Period the Lender shall, at the request and cost of the Assignor, take whatever action is necessary to reassign and release the Security Assets from the security constituted by this Deed (without recourse or warranty) and consent to the revocation of all authority and instructions given pursuant to the Schedules hereto.
This Deed may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same instrument.
This Deed shall be governed by and construed in accordance with English law. The provisions of Clause 33 (Enforcement) of the Facility Agreement shall apply to this Deed.
This Deed has been duly executed as a deed on the date stated at the beginning of this Deed.
SCHEDULE 1
Form of Notice and Acknowledgement of Assignment for the Shipbuilding Contract
PART I
Notice
From: The Assignor
To: [name of the Builder]
Date: [·], 20[·]
Dear Sirs,
Hull No. [·]
1. We refer to;
(i) the shipbuilding contract made between you and [AAA] dated [·], 20[·], and which has been assigned to, and the obligations of which have been assumed by us pursuant to an assignment agreement dated [·], 20[·] made between us and [AAA], (the Shipbuilding Contract) which assignment and assumption has been acknowledged by you by your countersignature of the notice of assignment dated [·]. The term Shipbuilding Contract includes all variations, supplements and additions thereto) relating to Hull No. [·] (the Vessel); and
(ii) an assignment between ourselves and The Export-Import Bank of
2. Terms defined in the Assignment (whether defined in the Assignment or incorporated by reference) shall have the same meaning in this notice.
3. We notify you that, by the Assignment, we assigned to the Lender absolutely by way of security all of our rights, title and interest, present and future, in and to (a) the Shipbuilding Contract and (b) all moneys payable to the Assignor thereunder and in respect of arbitration proceeds and/or insurances in connection therewith.
Please note the following:
(1) We hereby irrevocably authorise and instruct you to pay to the Lender the full amount of any refund which shall be due and payable under the terms of the Shipbuilding Contract and to pay to the Lender all other sums which may become due to pay to us under the Shipbuilding Contract including sums arising from any judgment or arbitration award.
(2) The Lender has agreed that until such time as it may give written notice of an Event of Default to you, we may continue to exercise all our rights under the Shipbuilding Contract. Following the Lender giving you notice that an Event of Default has occurred, the Lender shall be entitled (subject always to the provisions of the Shipbuilding Contract) to exercise all rights arising under the Shipbuilding Contract and may take delivery of the Vessel from you. In that case you shall deliver to the Lender or its order, the Protocol of Delivery and Acceptance and all other documents relating to such Vessel required by the Shipbuilding Contract on delivery.
(3) We have, by way of security, irrevocably and severally appointed the Lender and any of its respective delegates or sub-delegates as our attorney to take any action as we are obliged to take under this Assignment (but which, prior to an Event of Default) we have failed, for whatever reason, to take.
(4) The authority and instructions herein contained cannot be revoked or varied by us without the consent of the Lender.
(5) Although the Lender has agreed that (until such notice pursuant to paragraph (2) is given) we shall continue to superintend the building of the Vessel, we may not agree to any amendment, variations or waivers in relation to the Shipbuilding Contract without the previous consent in writing of the Lender.
Your agreement to the Assignment (a copy of which is enclosed) is requested.
Please will you acknowledge receipt of this Notice of the Assignment and your agreement thereto by sending to the Lender an Acknowledgement in the form attached hereto.
Yours faithfully,
Authorised Signatory
for and on behalf of
[·]
as Assignor
PART II
Acknowledgement
From: [name of the Builder]
To: The Export-Import Bank of Korea
Copy to: [·] (the Buyer)
Date: [·], 20[·]
Dear Sirs,
We acknowledge receipt of the notice of assignment received by us from the Buyer and we confirm for valuable consideration, receipt of which is hereby acknowledged:
(1) The Shipbuilding Contract therein defined is in full force and effect, we are not aware of any non-compliance by the Buyer thereunder as at the date of this acknowledgement and we expect delivery of the Vessel therein specified on or about [·], 20[·];
(2) We consent to the said assignment and agree to the terms of the said notice;
(3) We are not aware of any other assignment of or Security Interest on any of the Buyer's rights under the said Shipbuilding Contract;
(4) We will forthwith give you written notice of any non-compliance by the Buyer with the said Shipbuilding Contract and give you reasonable opportunity to remedy the default in accordance with the Shipbuilding Contract. If the Buyer wrongfully rejects the Vessel, we will give you reasonable opportunity to accept it in accordance with the terms of the said Shipbuilding Contract. Also we will not bring the said Shipbuilding Contract to an end if the Buyer is in liquidation or if the Buyer defaults without giving you reasonable opportunity to remedy the outstanding default (if applicable) in accordance with the Shipbuilding Contract and take over any obligations of the Buyer towards us under the said Shipbuilding Contract and will not bring the said Shipbuilding Contract to an end if you do remedy the outstanding default (if applicable), and take over such obligations.
(5) We will, if so requested by you following a notice from you that an Event of Default has occurred, enter into a shipbuilding contract with the Lender on the same terms as the Shipbuilding Contract and shall procure that The Export-Import Bank of Korea will enter into a refund guarantee for the instalments in accordance with the terms of the Shipbuilding Contract on the same terms in all substantial respects as the Refund Guarantee.
For the purposes hereof "reasonable opportunity" shall mean a period of 60 days from the date on which we first give you notice of our intention to bring the said Shipbuilding Contract to an end.
Terms defined in the Assignment (as defined in the notice) (whether defined in the Assignment or incorporated by reference) shall have the same meaning in this acknowledgement.
This letter is governed by English law.
Yours faithfully,
[·]
SCHEDULE 2
Form of Notice and Acknowledgement of Assignment for the Refund Guarantee
PART I
Notice
To: The Export-Import Bank of Korea
16-1 Yoido-dong
Youngdeungpo-gu
Dear Sirs,
1. We refer to:
(a) the letter of refund guarantee dated [·], 20[·] issued by you in favour of [AAA] in accordance with a shipbuilding contract dated [·], 20[·] between [AAA] and [·] (the Builder) (the Shipbuilding Contract) (the Refund Guarantee) and as assigned to us pursuant to an assignment agreement dated [·], 20[·] made between us and [AAA] and as acknowledged by you by your countersignature of the notice of assignment dated [·],; and
(b) an assignment entered into between us and The Export-Import Bank of
2. Terms defined in the Assignment (whether defined in the Assignment or incorporated by reference) shall have the same meaning in this notice.
3. We notify you that, by the Assignment, we assigned to the Lender absolutely by way of security and pledged all of our rights, title and interest, present and future, in and to the Refund Guarantee as set out in the Assignment (the Assigned Assets).
4. Upon notice from the Lender that the security granted by the Assignment has become enforceable, you are authorised and requested to comply with the instructions of the Lender in relation to the Assigned Assets.
5. Subject to the above, you are authorised and directed to pay all amounts payable under or pursuant to the Refund Guarantee to such account as the Lender may specify following a notice to that effect from the Lender.
6. Please acknowledge receipt of this notice by executing and delivering to us and to the Lender the attached acknowledgement.
Dated [ ·], 20[·]
________________________
Authorised Signatory
for and on behalf of
[·]
as Assignor
PART II
Acknowledgement
To: [·] (the Assignor)
and
To: The Export-Import Bank of Korea
[·], 20[·]
Dear Sirs,
We confirm receipt from the Assignor of a notice of assignment dated [·], 20[·] (a copy of which is attached).
Terms defined in the Assignment (as defined in the notice) (whether defined in the Assignment or incorporated by reference) shall have the same meaning in this acknowledgement.
We confirm that we:
(a) accept the instructions contained in the notice and undertake to comply with the notice;
(b) have not received notice of the interest of any third party in the Assigned Assets (as defined in such notice);
(c) have neither claimed or exercised any security interest, set-off, counter-claim or other right in respect of the Assigned Assets;
(d) following a notice from the Lender that an Event of Default has occurred, we will comply with the instructions of the Lender in relation to the Refund Guarantee to the exclusion of the Assignor and will pay all amounts payable under or pursuant to the Refund Guarantee to such account as the Lender may specify;
(e) if so requested by the Lender following a notice from the Lender that an Event of Default has occurred, we will enter into a new Refund Guarantee in favour of the Lender or its nominee in respect of the Vessel on the same terms in all substantial respects as the Refund Guarantee;
(f) we will provide to the Lender a copy of the notice which we give to the Assignor under the Refund Guarantee at the same time as we give such notice to the Assignor.
This letter is governed by English law.
Yours faithfully,
_________________________________
Authorised Signatory
for and on behalf of
The Export-Import Bank of
Signatories to General Assignment
ASSIGNOR
SIGNED as a deed by
[·]
[as attorney for]
[·]
in the presence of:
LENDER
SIGNED as a deed by
[·]
as attorney for
THE EXPORT-IMPORT BANK OF
in the presence of:
3_1 General Assignment.DOC
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