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OPERATING EXPENSES ACCOUNT CHARGE, 운영 비용 부담 계약서, 영문 계약서 본문
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Operating Expenses account CHARGE |
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[the owner]
- and -
THE EXPORT-IMPORT BANK OF
Dated [·], 20[·]
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contents
Clause Page
1. Interpretation...................................................................................................... 1
2. Creation of Security............................................................................................ 3
3. Notices................................................................................................................ 3
4. Representations - general.................................................................................... 3
5. Restrictions on dealings...................................................................................... 4
6. Accounts............................................................................................................. 4
7. When Security becomes enforceable.................................................................. 5
8. Enforcement of Security..................................................................................... 5
9. Receiver.............................................................................................................. 6
10. Powers of Receiver............................................................................................. 7
11. Application of proceeds...................................................................................... 9
12. Delegation......................................................................................................... 10
13. Further assurances............................................................................................. 10
14. Power of attorney............................................................................................. 11
15. Miscellaneous.................................................................................................... 11
16. Release.............................................................................................................. 12
17. Governing Law................................................................................................. 12
Schedule
1. Form of Notice and Acknowledgement of Charge.......................................... 14
Signatories..................................................................................................................... 19
THIS DEED is dated [·], 20[·] between:
(1) [NAME OF THE CHARGOR] a company incorporated in [·], whose registered office is at [·] (the Chargor);
(2) THE EXPORT-IMPORT BANK OF
BACKGROUND:
(A) The Chargor enters into this Deed in connection with the Facility Agreement (as defined below).
(B) It is intended that this document take effect as a deed notwithstanding the fact that a party may only execute this document under hand.
IT IS AGREED as follows:
1.1 Definitions
In this Deed:
Account Bank means The Toronto-Dominion Bank or any other bank or financial institution with which, with the prior written consent of the Lender, a Security Account is maintained.
Act means the Personal Property Security Act (
Facility Agreement means the
Operating Expenses Account means a bank account with account number [·] and sort code [·] opened in the name of the Chargor with the Account Bank and designated "[·]", including any sub-accounts thereto.
Party means a party to this Deed.
Receiver means a receiver-manager, receiver and manager or a receiver, in each case, appointed under this Deed.
Secured Liabilities means all present and future obligations and liabilities (whether actual or contingent or whether owed in any capacity whatsoever) of the Owners to the Lender under each Finance Document to which any of the Owners is, or will be, a party.
Security Accounts means the Operating Expenses Account and any other account of the Chargor designated as such by the Lender and the Chargor during the Security Period pursuant to Clause 6 (Accounts), such term to include any moneys standing to the credit of any such account.
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.
Vessel means [type of the Vessel] vessel owned by the Chargor.
1.2 Construction
(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 though they were set out in full in this Deed, except that references to the Facility Agreement will be construed as references to this Deed.
(c) (i) The term Finance Document includes all amendments and supplements including supplements providing for further advances; and
(ii) the term this Security means any security created by this Deed.
(d) Any covenant of the Chargor under this Deed (other than a payment obligation) remains in force during the Security Period.
(e) If the Lender considers that an amount paid to it under a Finance Document is capable of being avoided or otherwise set aside on the liquidation or administration of the payer or otherwise, then that amount will not be considered to have been irrevocably paid for the purposes of this Deed.
(f) Unless the context otherwise requires, a reference to a Security Account includes the proceeds of sale of that Security Account.
2.1 General
All the security created under this Deed:
(a) is created in favour of the Lender;
(b) is created over present and future assets of the Chargor; and
(c) is security for the payment of all the Secured Liabilities.
No agreement has been made to postpone the time for attachment of the Security Interests created under this Deed, and for greater certainty it is agreed that nothing in Subclause 7.1 constitutes an agreement to postpone the time for attachment of the Security Interests created under this Deed.
2.2 Collateral
The Chargor charges by way of a first fixed charge all of its rights in respect of each Security Account, including any amount standing to the credit of a Security Account and the debt represented by it.
The Chargor shall promptly give a notice of charge substantially in the form set out in Part 1 of Schedule 1 to this Deed and shall procure that the Account Bank acknowledges receipt of the notice to the Lender substantially in the form set out in Part 2 of Schedule 1 to this Deed.
4.1 Nature of security
The Chargor represents to the Lender that this Deed creates those Security Interests it purports to create and is not liable to be amended or otherwise set aside on the liquidation or administration of the Chargor or otherwise.
4.2 Times for making representations
(a) The representations set out in this Deed (including in this Clause 4) are made on the date of this Deed.
(b) Unless a representation is expressed to be given at a specific date, each representation under this Deed is deemed to be repeated by the Chargor annually on each anniversary of the Utilisation Date. The Chargor shall provide to the Lender the Annual Compliance Certificate in accordance with the provisions of the Facility Agreement.
(c) When a representation is repeated, it is applied to the circumstances existing at the time of repetition.
The Chargor must not:
(a) create or permit to subsist any Security Interest on any Security Account; or
(b) sell, transfer, licence, lease or otherwise dispose of any Security Account,
except as expressly allowed under the Facility Agreement.
6.1 Accounts
All Security Accounts must be maintained at the Account Bank.
6.2 Withdrawals
(a) During the term of the Facility no sum may be withdrawn from a Security Account other than as expressly agreed by the Lender as set out in Clause 12.9 (Release of surplus) of the Facility Agreement.
(b) Upon the occurrence of an Event of Default and whilst it is continuing, the Lender (or a Receiver) may (subject to the payment of any claims having priority to this Security) withdraw amounts standing to the credit of a Security Account to meet any amount due and payable under the Finance Documents when it is due and payable.
7. When Security becomes enforceable
7.1 Event of Default
This Security will become immediately enforceable if an Event of Default occurs and the Lender gives notice to the Chargor that this Security is enforceable.
7.2 Discretion
After this Security has become enforceable, the Lender may in its absolute discretion enforce all or any part of this Security in any manner it sees fit.
7.3 Powers of realization
The powers conferred by Part 5 of the Act, as amended by this Deed, will be immediately exercisable at any time after this Security has become enforceable.
8.1 General
For the purposes of all powers implied by statute, the Secured Liabilities are deemed to have become due and payable on the date of this Deed.
8.2 No liability as mortgagee in possession
Neither the Lender nor any Receiver will be liable, by reason of entering into possession of a Security Account, to account as mortgagee in possession or for any loss on realisation or for any default or omission for which a mortgagee in possession might be liable.
8.3 Privileges
Each Receiver and the Lender is entitled to all the rights, powers, privileges and immunities conferred by the Act on secured parties and receivers.
8.4 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 a Receiver is purporting to exercise has become exercisable or is being properly exercised;
(c) whether any money remains due under the Finance Documents; or
(d) how any money paid to the Lender or to that Receiver is to be applied.
8.5 Redemption of prior mortgages
(a) At any time after this Security has become enforceable, the Lender may:
(i) redeem any prior Security Interest against any Security Accounts; and/or
(ii) procure the transfer of that Security Interest to itself; and/or
(iii) settle and pass the accounts of the prior mortgagee, chargee or encumbrancer; any accounts so settled and passed will be, in the absence of manifest error, conclusive and binding on the Chargor.
(b) The Chargor must pay to the Lender, immediately on demand, the costs and expenses incurred by the Lender in connection with any such redemption and/or transfer, including the payment of any principal or interest.
8.6 Contingencies
If this Security is enforced at a time when no amount is due under the Finance Documents but at a time when amounts may or will become due, the Lender (or the Receiver) may pay the proceeds of any recoveries effected by it into a suspense account.
9.1 Appointment of Receiver
(a) Except as provided below, the Lender may appoint any one or more persons to be a Receiver of all or any part of the Security Accounts if:
(i) this Security has become enforceable; or
(ii) the Chargor so requests the Lender in writing at any time.
(b) Any appointment under paragraph (a) above may be by deed, under seal or in writing under its hand.
9.2 Removal
The Lender may by writing under its hand remove any Receiver appointed by it and may, whenever it thinks fit, appoint a new Receiver in the place of any Receiver whose appointment may for any reason have terminated.
9.3 Remuneration
The Lender may fix the remuneration of any Receiver appointed by it.
9.4 Agent of the Chargor
(a) A Receiver will be deemed to be the agent of the Chargor for all purposes and accordingly will be deemed to be in the same position as a Receiver duly appointed by a secured party under the Act. The Chargor alone is responsible for the contracts, engagements, acts, omissions, defaults and losses of a Receiver and for liabilities incurred by a Receiver.
(b) The Lender will not incur any liability (either to the Chargor or to any other person) by reason of the appointment of a Receiver or for any other reason.
9.5 Relationship with Lender
To the fullest extent allowed by law, any right, power or discretion conferred by this Deed (either expressly or impliedly) or by law on a Receiver may after this Security becomes enforceable be exercised by the Lender in relation to any Security Account without first appointing a Receiver and notwithstanding the appointment of a Receiver.
10.1 General
(a) A Receiver has all of the rights, powers and discretions set out below in this Clause in addition to those conferred on it by any law, including all the rights, powers and discretions conferred on a receiver under the Act.
(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.
10.2 Possession
A Receiver may take immediate possession of, get in and collect the proceeds of any Security Account.
10.3 Carry on business
A Receiver may carry on the business of the Chargor in any manner he thinks fit.
10.4 Employees
(a) A Receiver may appoint and discharge managers, officers, agents, accountants, servants, workmen and others for the purposes of this Deed upon such terms as to remuneration or otherwise as he thinks fit.
(b) A Receiver may discharge any person appointed by the Chargor.
10.5 Borrow money
A Receiver may raise and borrow money either unsecured or on the security of any Security Account either in priority to this Security or otherwise and generally on any terms and for whatever purpose which he thinks fit.
10.6 Compromise
A Receiver may settle, adjust, refer to arbitration, compromise and arrange any claim, account, dispute, question or demand with or by any person who is or claims to be a creditor of the Chargor or relating in any way to a Security Account.
10.7 Legal actions
A Receiver may bring, prosecute, enforce, defend and abandon any action, suit or proceedings in relation to a Security Account which he thinks fit.
10.8 Receipts
A Receiver may give a valid receipt for any moneys and execute any assurance or thing which may be proper or desirable for realising any Security Account.
10.9 Subsidiaries
A Receiver may form a Subsidiary of the Chargor and transfer to that Subsidiary any Security Account.
10.10 Delegation
A Receiver may delegate his powers in accordance with this Deed.
10.11 Lending
A Receiver may lend money or advance credit to any customer of the Chargor.
10.12 Other powers
A Receiver may:
(a) do all other acts and things which he may consider desirable or necessary for realising any Security Account or incidental or conducive to any of the rights, powers or discretions conferred on a Receiver under or by virtue of this Deed or law;
(b) exercise in relation to any Security Account all the powers, authorities and things which he would be capable of exercising if he were the absolute beneficial owner of that Security Account; and
(c) use the name of the Chargor for any of the above purposes.
Any moneys received by the Lender or any Receiver in respect of any Security Account 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 Chargor.
12.1 Power of Attorney
The Lender or any Receiver may delegate by power of attorney or in any other manner to any person any right, power or discretion exercisable by it under this Deed.
12.2 Terms
Any such delegation may be made upon any terms (including power to sub-delegate) which the Lender or any Receiver may think fit.
12.3 Liability
Neither the Lender nor any Receiver will be in any way liable or responsible to the Chargor for any loss or liability arising from any act, default, omission or misconduct on the part of any delegate or sub-delegate.
The Chargor must, at its own expense, take whatever action the Lender or a Receiver may require for:
(a) creating, perfecting or protecting any security intended to be created by this Deed; or
(b) facilitating the realisation of any Security Account, or the exercise of any right, power or discretion exercisable, by the Lender or any Receiver or any of its delegates or sub-delegates in respect of any Security Account.
This includes:
(i) the execution of any transfer, conveyance, assignment or assurance of any property, whether to the Lender or to its nominee; or
(ii) the giving of any notice, order or direction and the making of any registration,
which, in any such case, the Lender may think expedient.
The Chargor, by way of security, irrevocably and severally appoints the Lender, each Receiver and any of its delegates or sub-delegates to be its attorney to take any action which the Chargor is obliged to take under this Deed. The Chargor ratifies and confirms whatever any attorney does or purports to do under its appointment under this Clause.
15.1 Covenant to pay
The Chargor must pay or discharge the Secured Liabilities in the manner provided for in the Finance Documents.
15.2 Tacking
The Lender must perform its obligations under the Facility Agreement (including any obligation to make available further advances).
15.3 New Accounts
(a) If any subsequent charge or other interest affects any Security Account, the Lender may notify the Account Bank to open a new account with the Chargor.
(b) If the Account Bank does not open a new account, it will nevertheless be treated as if it had done so at the time when the Lender received or was deemed to have received notice of that charge or other interest.
(c) As from that time all payments made to the Security Account referred to in paragraph (a) above will be credited or be treated as having been credited to the new account and will not operate to reduce any Secured Liability.
15.4 Notice of assignment
This Deed constitutes notice in writing to the Chargor of any charge or assignment of a debt owed by the Chargor to any other member of the Seaspan Group and contained in any other Security Document.
15.5 Copies of Deed and Financing Statements
The Chargor acknowledges receipt of a copy of this Deed and waives the right to receive a copy of all present and future financing statements and financing change statements filed in connection with the Security Interests created by this Deed and all related verification statements.
16. Release
At the end of the Security Period, the Lender shall, at the request and cost of the Chargor, take whatever action is necessary to release the Security Accounts from this Security.
This Deed is governed by the laws in effect in
(i) with respect to jurisdiction:
(A) the
(B) the
(C) this subclause (C) is for the benefit of the Lender only; to the extent allowed by law, the Lender may take: proceedings in any other court; and concurrent proceedings in any number of jurisdictions;
(ii) with respect to service of process:
(A) the Chargor irrevocably appoints [ ] of [ ] as its agent under this Deed and the other Finance Documents for service of process in any proceedings before the
(B) if any person appointed as process agent is unable for any reason to act as agent for service of process, the Chargor must immediately appoint another agent on terms acceptable to the Lender; failing this, the Lender may appoint another agent for this purpose;
(C) the Chargor agrees that failure by a process agent to notify it of any process will not invalidate the relevant proceedings;
(D) this clause (ii) does not affect any other method of service allowed by law;
(iii) with respect to waiver of immunity, the Chargor irrevocably and unconditionally:
(A) agrees not to claim any immunity from proceedings brought by the Lender against it in relation to this Deed or any other Finance Document and to ensure that no such claim is made on its behalf;
(B) consents generally to the giving of any relief or the issue of any process in connection with those proceedings; and
(C) waives all rights of immunity in respect of it or its assets.
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 Charge
PART 1
Notice
To : The Toronto-Dominion Bank
Dear Sirs,
1. We refer to:
(a) our bank account held with you with account number [·] and sort code [·] designated "[·]", including any sub-accounts thereto (the "Operating Expenses Account"); and
(b) a charge entered into between us and The Export-Import Bank of
2. Terms defined in the Charge, other than those defined therein by incorporating definitions of such terms set out in another agreement, shall have the same meanings in this notice.
3. We notify you that, by the Charge, we charged to the Lender by way of a first fixed charge all of our rights in respect of the Operating Expenses Account, including any amount standing to the credit of such account, as set out in the Charge.
4. We authorise you to provide to the Lender, on a monthly basis, copies of statements and information provided to us in respect of the amount standing to the credit of the Operating Expenses Account.
5. Upon notice from the Lender that the security granted by the Charge has become enforceable, you are authorised and requested to comply with the instructions of the Lender in relation to the Operating Expenses Account.
6. Subject to the above, you are authorised and directed to pay all amounts standing to the credit of the Operating Expenses Account to such account as the Lender may specify following a notice to that effect from the Lender.
7. You are authorised and requested to permit any withdrawal from the Operating Expenses Account by the Chargor in the following circumstances:
(iv) in order to make payment of operating expenses properly and reasonably incurred by the Chargor in connection with the operation, employment, maintenance, repair and insurance of its Vessel, and you shall be entitled to assume that all requests made by the Chargor comply with this requirement,
(v) in the event that the Lender confirms to you that there has been a reduction of the Chargor’s “equity contribution”, the Lender shall then instruct you to release to the Chargor the amount representing such reduction; and
(vi) in the event that the Lender advises you that the Chargor has made a payment into the Chargor’s retention account to cover a shortfall in funds in such account, which is then rectified and results in an excess of funds being held in the Chargor’s earning account then, the Lender shall instruct you to release such amount of excess funds from the Operating Expenses Account into such account as the Chargor shall require and advise to the Lender.
Such withdrawals shall not be permitted once you receive notice from the Lender in accordance with paragraph 4 above.
8. Please acknowledge receipt of this notice by executing any delivering to us and to the Lender the attached acknowledgement.
Dated [·].
Authorised Signatory
for an on behalf of
[·]
as Chargor
The undersigned Lender hereby consents to the matters set out in paragraph 7 above, and agrees that you shall be entitled to assume that all requests made by the Chargor as contemplated by clause 7(i) above comply with the requirement set out in such clause.
Dated [·].
Authorised Signatory
for and on behalf of
THE EXPORT-IMPORT BANK OF
as Lender
PART 2
Acknowledgement
To: [·] (the "Chargor")
and
To: The Export-Import Bank of Korea
[·]
Dear Sirs,
We confirm receipt from the Chargor of a notice of Charge dated [·] (copies of which notice and Charge are attached).
Terms defined in the Charge, other than those defined therein by incorporating definitions of such terms set out in another agreement, shall have the same meanings 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 Operating Expenses Account;
(c) have neither claimed or exercised any security interest, set-off, counter-claim or other right in respect of the Operating Expenses Account;
(d) will permit withdrawal out of the Operating Expenses Account in accordance with the terms of the Notice until such time as we receive notice from you that your security is enforceable; and
(e) will provide to the Lender a copy of each notice which we give to the Chargor in respect of the Operating Expenses Account at the same time as we give such notice to the Chargor.
This letter is governed by the laws in effect in
Yours faithfully,
Authorised Signatory
for and on behalf of
The Toronto-Dominion Bank
Chargor
EXECUTED AS A DEED by
[·]
as authorized signatory for
[·]
in the presence of:
Lender
EXECUTED AS A DEED by
[·]
as attorney for
THE EXPORT-IMPORT BANK OF
in the presence of:
3_6 Operating Expenses Account Charge.DOC
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