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DEED OF COVENANTS, 기부 약정서, 영문 계약서 본문
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relating to a [·] vessel
m.v. ["·"] |
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as Owner
- and -
THE EXPORT-IMPORT BANK OF KOREA
as Mortgagee
Dated [·], 20[·] |
contents
Clause Page
1. Definitions and Interpretation.............................................................................. 2
2. Mortgage............................................................................................................... 8
3. Continuing Security.............................................................................................. 8
4. Covenant to Pay and Perform............................................................................... 8
5. Security Interests.................................................................................................. 9
6. Status of Time Charter.......................................................................................... 9
7. Insurance Definitions............................................................................................ 9
8. Obligatory Insurances......................................................................................... 10
9. Insurance Covenants........................................................................................... 11
10. Application of Insurance Proceeds..................................................................... 13
11. Registration of Vessel......................................................................................... 14
12. Classification and Repair.................................................................................... 15
13. Lawful and Safe Operation................................................................................ 16
14. Management and Repairs.................................................................................... 17
15. Arrests and Liabilities......................................................................................... 17
16. EnvironmentAL Laws........................................................................................ 19
17. Information......................................................................................................... 19
18. Protection of Security......................................................................................... 20
19. Enforcement of Security..................................................................................... 21
20. Receiver.............................................................................................................. 22
21. Application of Proceeds...................................................................................... 23
22. Power of Attorney.............................................................................................. 23
23. Protection of Third Parties.................................................................................. 23
24. Delegation........................................................................................................... 24
25. Stamp Duties....................................................................................................... 24
26. Indemnity............................................................................................................ 24
27. Governing Law................................................................................................... 24
28. Waivers and Remedies Cumulative.................................................................... 24
29. Assignment......................................................................................................... 25
30. Forum.................................................................................................................. 25
31. Severability......................................................................................................... 25
32. Counterparts........................................................................................................ 26
SIGNATORIES TO THE DEED.................................................................................. 27
THIS DEED OF COVENANTS is made the day of [·], 20[·] BETWEEN
(1) [NAME OF THE OWNER] a company incorporated under the laws of the [name of the country] whose registered office is at [address of the Owner] (the Owner); and
(2) THE EXPORT-IMPORT BANK OF
WHEREAS :
(A) The Owner is the sole, absolute owner of one hundred one hundredths unencumbered shares in the Vessel (as defined below).
(B) By a facility agreement dated [·], 20[·] and made between (1) the Owner and others as joint and several borrowers (together the Owners) and (2) the Mortgagee (therein referred to as the Lender) as lender, it was agreed amongst other things that the Mortgagee would make available to the Owners upon the terms and conditions therein described a loan facility of up to [·] United State Dollars (US$[·]).
(C) It is a condition, inter alia, to the Mortgagee agreeing to make available the said loan facility to the Borrowers that the Owner shall execute, deliver and register a first priority statutory mortgage in favour of the Mortgagee over one hundred one hundredth shares in the Vessel and shall enter into a deed of covenants supplemental thereto in the form of this Deed as (inter alia) security for the due payment of all sums from time to time payable by the Owner to the Mortgagee under or pursuant to the said facility agreement.
(D) Pursuant to the said facility agreement and in consideration of the obligations of the Mortgagee thereunder the Owner has executed in favour of the Mortgagee a statutory mortgage in account current form bearing the same date as this Deed and constituting a first priority statutory mortgage of one hundred one hundredth shares in the Vessel in favour of the Mortgagee.
(E) This Deed is supplemental to the Mortgage (defined below) and to the security thereby created and it is the intention of the parties that this Deed shall take effect as a deed notwithstanding that one of the parties may execute it under hand.
NOW IT IS HEREBY AGREED AND DECLARED as follows:
I GENERAL
1. Definitions and Interpretation
1.1 In this Deed including the recitals:
Default Rate means [·] per annum above the rate of interest payable.
Delivery Date means the date of actual delivery of the Vessel to the Owner under the terms of the Shipbuilding Contract.
Environmental Affiliate means the Owner, the Sponsor, the Charterer and the Managers together with their respective employees and in respect of any activities undertaken in relation to the Vessel, their sub-contractors.
Event of Default means any failure by the Owner or any other party to the Finance Documents (other than the Mortgagee) to perform, observe, comply with or discharge any of the covenants, terms, conditions or obligations of the Facility Agreement and the other Finance Documents or any of them on their part to be performed, observed, complied with or discharged and includes, without limitation to the generality of the foregoing, any of the events set out in Clause 18 of the Facility Agreement.
Excess Risks means:
(a) the proportion of claims for general average, salvage and salvage charges which are not recoverable as a result of the value at which the Vessel is assessed for the purpose of such claims exceeding her hull and machinery insured value; and
(b) collision liabilities not recoverable in full under the hull and machinery insurance by reason of those liabilities exceeding such proportion of the insured value of the Vessel as is covered by the hull and machinery insurance.
Facility Agreement means the facility agreement for up to US$[·] first referred to in recital (B) hereto between (among others) the Owner and the Mortgagee.
Finance Documents means:
(a) the Facility Agreement;
(b) the Security Documents;
(c) the Letter of Commitment;
(d) the DPP;
(e) the Manager’s Undertaking;
(f) any Transfer Certificate; and
(g) any other document designated as such by the Mortgagee and the Owners.
Insurances Assignment means the assignment of the insurances granted or to be granted in favour of the Mortgagee by the Owner in the form of Appendix [·] to the Facility Agreement together with any and all notices and acknowledgements entered into in connection therewith.
Manager means(i) in respect of technical management, [name of the technical Manager] of [·], a company incorporated according to the laws of [·], (ii) in respect of commercial management, [name of the commercial Manager] Limited of [·] and (iii) in respect of crew management, [name of the crew Manager] of [·] or such other professional manager or managers as may be approved by the Mortgagee from time to time.
Mortgage means a first priority statutory [name of the country] ship mortgage first referred to in recital (C) hereto in favour of the Mortgagee in respect of the Vessel.
Obligatory Insurances means:
(a) all contracts and policies of insurance and all entries in clubs and/or associations which are from time to time required to be effected and maintained in accordance with this Deed in respect of the Vessel; and
(b) all benefits under the contracts, policies and entries under paragraph (a) above and all claims in respect of them and the return of premiums.
Permitted Liens means:
(a) Security Interests created by the Security Documents;
(b) liens for unpaid crew's wages including wages of the master and stevedores employed by the Vessel, outstanding in the ordinary course of trading for not more than one calendar month after the due date for payment;
(c) liens for salvage;
(d) liens for classification or scheduled dry docking or for necessary repairs to the Vessel whose aggregate cost does not exceed US$[·] at any one time in respect of the Vessel;
(e) liens for collision;
(f) Security Interests created by the Junior Security Documents;
(g) liens for master's disbursements incurred in the ordinary course of trading; and
(h) statutory and common law liens of carriers, warehousemen, mechanics, suppliers, materials men, repairers or other similar liens, including maritime liens, in each case arising in the ordinary course of business, outstanding for not more than one month whose aggregate value does not exceed US$[·].
in the case of paragraphs (b) to (h) inclusive provided that the amounts which give rise to such liens are paid when due or, if not paid when due are being disputed in good faith by appropriate proceedings (and for the payment of which adequate reserves or security are at the relevant time maintained or provided), provided further that such proceedings, whether by payment of adequate security into Court or otherwise, do not give rise to a material risk of the Vessel or any interest therein being seized, sold, forfeited or otherwise lost or of criminal liability on the Mortgagee.
Release means an emission, spill, release or discharge into or upon the air, surface water, groundwater or soils of any Hazardous Materials for which the Owner has any liability under Environmental Law, except in accordance with a valid Environmental Approval.
Requisition Compensation means all moneys or other compensation payable by reason of requisition for title to, or other compulsory acquisition of, the Vessel including requisition for hire;
Secured Liabilities means all present and future obligations and liabilities (whether actual or contingent) of the Owner to the Mortgagee under or in connection with each Finance Document to which the Owner is a party.
Security Documents means:
(a) the Mortgages;
(b) the General Assignments;
(c) the Pledges of Shares;
(d) the Insurances Assignments;
(e) the Vessel Management Agreement Assignments;
(f) the Time Charter and Earnings Assignments;
(g) the Support Letter;
(h) the Earnings Account Charges;
(i) the Debt Service Reserve Account Charges;
(j) the Retention Account Charges;
(k) the Operating Expenses Account Charges; and
(l) any other document designated as such in writing by the Owners and the Mortgagee or evidencing or creating security over any asset of an Owner to secure any obligation of an Owner to the Mortgagee under the Finance Documents.
Security Period means the period beginning on the date hereof and ending on the date upon which all the Secured Liabilities which have or may arise have been unconditionally and irrevocably paid and discharged in full.
Shipbuilding Contract means, the agreement between the Builder and [name of the Sponsor] dated [·], 20[·] and which has been assigned to, and the obligations of which have been assumed by the Owner pursuant to an assignment agreement dated [·], 20[·] made between [name of the Sponsor] and the Owner pursuant to which the Builder agreed to build and deliver the Vessel to the Owner.
Time Charter means the time charterparty dated [·], 20[·] entered into by [name of the Sponsor] or its nominee and the Charterer which has beenassigned to, and the obligations of which have been assumed by the Owner pursuant to an assignment agreement dated [·], 20[·] made between [name of the Sponsor] and the Owner or such other time charter party entered into from time to time in connection with the Facility Agreement.
Total Loss means:-
(a) actual, constructive, compromised, agreed or arranged total loss of the Vessel;
(b) requisition for title or other compulsory acquisition of the Vessel otherwise than by requisition for hire;
(c) capture, seizure, arrest, detention, requisition for hire or confiscation of the Vessel by any government or by persons acting or purporting to act on behalf of any government which deprives the Owner or Charterer of the use of the Vessel for more than 60 days after that occurrence.
(d) requisition for hire of the Vessel by any government or by persons acting or purporting to act on behalf of any government which deprives the Owner or as the case may be the Charterer of the use of the Vessel for a period of 60 days, other than a charter of the Vessel to a government or government agency approved by the Owner and by the Lender.
Vessel means the whole of the [type of the Vessel] vessel m.v. "[·]" registered in the ownership of the Owner under the flag of [·] at the port of [·] with official number [·] and the following registered dimensions and tonnages:
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length |
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breadth |
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depth |
[·] |
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gross tonnage |
[·] |
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net tonnage |
[·] |
together with all her engines, machinery, boats, tackle, outfit, fuels, spares, consumables and other stores, belonging and appliances whether on board or ashore, including any which may in the future be put on board or may in the future be intended to be used for the Vessel if on shore.
1.2 Interpretation
(a) In the Mortgage:
(i) References to interest means interest covenanted to be paid in accordance with the Facility Agreement;
(ii) References to principal means all other sums of money and liabilities for the time being comprised in the Secured Liabilities;
(iii) Account Current means an account which shall be kept by the Owner with the Mortgagee and which the Mortgagee shall (without demand or notice) debit with any part or the whole of the Secured Liabilities; and
(iv) the expression “all sums for the time being owing to the Mortgagee” means the whole of the Secured Liabilities.
(b) Capitalised terms defined in the Facility Agreement have, unless expressly defined in this Deed or the context otherwise requires, the same meaning in this Deed.
(c) 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.
(d) If the Mortgagee considers that an amount paid by the Owner under a Finance Document to which the Owner is a party is capable of being avoided or otherwise set aside on the liquidation or administration of the Owner or otherwise, then that amount shall not be considered to have been irrevocably paid for the purposes of this Deed.
(e) A reference in this Deed to assets includes, unless the context otherwise requires, present and future assets.
As security for payment of the Secured Liabilities the Owner as beneficial owner of the Vessel hereby grants to the Mortgagee the Mortgage on the Vessel and hereby mortgages and charges the Vessel to the Mortgagee.
The security constituted by this Deed shall be continuing and shall not be satisfied by any intermediate payment or satisfaction of the whole or any part of the Secured Liabilities and shall secure the ultimate balance of the Secured Liabilities. The security hereby given shall be in addition to and shall not be affected by any other Security Interest now or hereafter held by the Mortgagee for all or any of the Secured Liabilities.
4. Covenant to Pay and Perform
The Owner hereby covenants
(a) to repay the relevant Loan to the Mortgagee by the instalments and on the dates referred to in and otherwise in the manner and upon the terms set out in, the Facility Agreement; and
(b) to pay to the Mortgagee interest on the relevant Loan and on all other sums on which interest is payable under the Finance Documents to which the Owner is or is to be a party and interest on any overdue interest, all at the rate or rates from time to time applicable thereto and at the times and otherwise in the manner and upon the terms set out in the Facility Agreement and the Security Documents; and
(c) to pay to the Mortgagee all other amounts payable under or pursuant to the Finance Documents to which the Owner is or is to be a party, or any of them, at the times and otherwise in the manner therein specified; and
(d) to comply at all times with the terms (express or implied) of the Facility Agreement, this Deed, the Mortgage, and any other Security Document to which it is a party.
5.1 Security Interests
The Owner shall not, and the Owner shall procure that the Manager does not, create or permit to subsist any Security Interest over the Vessel other than:
(a) Permitted Liens; or
(b) with the prior written consent of the Mortgagee.
5.2 Disposals
(a) Except as provided below or as provided in the Facility Agreement, the Owner may not, either in a single transaction or in a series of transactions and whether related or not, dispose of all or any part of its assets.
(b) Paragraph (a) does not apply to any disposal made in the ordinary course of trading of the Owner.
II TIME CHARTER
The Owner represents to the Mortgagee that there have been no amendments to the Time Charter.
III INSURANCES
In this Deed:-
(a) approved means approved by the Mortgagee in writing;
(b) Required Insurance Amount means 120 per cent. of the aggregate outstanding Loan in relation to the Vessel; and
(c) Insurers means the underwriters or insurance companies with whom any obligatory insurances are effected and the managers of any protection and indemnity or war risks association in which the Vessel may at any time be entered.
At all times during the Security Period the Owner will:
(a) keep the Vessel insured in the Required Insurance Amount, in Dollars in the name of the Owner or (if the Mortgagee so requires) in the joint names of the Owner and the Mortgagee without the Mortgagee being liable but having the right to pay premiums, through brokers approved by the Mortgagee against fire and usual marine risks (including hull and machinery and Excess Risks) with approved underwriters or insurance companies approved by the Mortgagee and by policies in form and content approved by the Mortgagee;
(b) keep the Vessel insured in the Required Insurance Amount in the same manner as above against war risks (including risks of mines and all risks, whether or not regarded as war risks, London Blocking and Trapping Addendum and Lost Vessel Clause, excepted by the free of capture and seizure clauses in the standard form of Lloyds marine policy) either:
(i) with underwriters or insurance companies approved by the Mortgagee and by policies in form and content approved by the Mortgagee; or
(ii) by entering the Vessel in an approved war risks association,
and for the avoidance of doubt, such war risks insurance will include protection and indemnity liability up to at least the Required Insurance Amount, excluding any liability in respect of death, injury or damage to crew;
(c) keep the Vessel entered in respect of her full value and tonnage in an approved protection and indemnity association against all risks as are normally covered by such protection and indemnity association (including pollution risks and the proportion not recoverable in case of collision under the running down clause inserted in the ordinary Lloyds policies), such cover for pollution risks to be for:
(i) a minimum amount of US$[·] or such other amount of cover against pollution risks as shall at any time be comprised in the basic entry of the Vessel with either a protection and indemnity association which is an acceptable member of either the International Group of protection and indemnity associations (or any successor organisation designated by the Mortgagee for this purpose) or the International Group (or such successor organisation) itself; or
(ii) if the International Group or any such successor ceases to exist or ceases to provide or arrange any cover for pollution risks (or any supplemental cover for pollution risks over and above that afforded by the basic entry of the Vessel with its protection and indemnity association), such aggregate amount of cover against pollution risks as shall be available on the open market and by basic entry with a protection and indemnity association for ships of the same type, size, age and flag as the Vessel,
provided that, if the Vessel has ceased trading or is in lay up and in either case has unloaded all cargo, the level of pollution risks cover afforded by ordinary protection and indemnity cover available through a member of the International Group or such successor organisation or, as the case may be, on the open market in such circumstances shall be sufficient for such purposes;
(d) at all times after the Vessel is let on charter maintain in full force and effect off-hire insurance in respect of the Vessel with underwriters or insurance companies approved by the Mortgagee and by policies in form and content approved by the Mortgagee; and
(e) whenever the Vessel is engaged in trade connected with
During the Security Period the Owner will:-
(a) not without the prior consent of the Mortgagee alter any Obligatory Insurance nor make, do, consent or agree to any act or omission which would or might render any Obligatory Insurance invalid, void, voidable or unenforceable or render any sum paid out under any Obligatory Insurance repayable in whole or in part;
(b) not cause or permit the Vessel to be operated in any way inconsistent with the provisions or warranties of, or implied in, or outside the cover provided by, any Obligatory Insurance or to be engaged in any voyage or to carry any cargo not permitted by any Obligatory Insurances without first covering the Vessel in the relevant Required Insurance Amount and her freights for an amount approved by the Mortgagee in Dollars or another approved currency with the Insurers;
(c) duly and punctually pay all premiums, calls, contributions or other sums of money from time to time payable in respect of any Obligatory Insurances;
(d) renew all Obligatory Insurances at least 14 days before the relevant policies or contracts expire and procure that the approved brokers and/or war risks and protection and indemnity clubs and associations shall promptly confirm in writing to the Mortgagee as and when each renewal is effected;
(e) forthwith upon the effecting of any Obligatory Insurances, give written notice of the insurance to the Mortgagee stating the full particulars (including the dates and amounts) of the insurance, and on request produce the receipts for each sum paid by it pursuant to paragraph (c) above;
(f) not settle, release, compromise or abandon any claim in respect of any Total Loss unless the Mortgagee is satisfied that such settlement, release, compromise or abandonment will not prejudice its interests under or in relation to any Finance Document;
(g) arrange for the execution and delivery of such guarantees as may from time to time be required by any protection and indemnity or war risks club or association;
(h) procure that the interest of the Mortgagee is noted on all policies of insurance;
(i) procure that a loss payee provision in the form scheduled to the Insurances Assignment and reflecting the provisions of Clause 16.29 (Application of Insurance Proceeds) of the Facility Agreement is endorsed on all policies of insurance;
(j) obtain from the relevant insurance brokers and P&I Club letters of undertaking in the forms scheduled to the Insurances Assignment; and
(k) in the event that the Owner receives payment of any moneys under the Insurances Assignment, save as provided in the loss payable clauses scheduled to the Insurances Assignment, forthwith pay over the same to the Mortgagee and until paid over such moneys shall be held in trust for the Mortgagee by the Owner.
10. Application of Insurance Proceeds
(a) All sums receivable in respect of the Obligatory Insurances after the occurrence of an Event of Default shall be paid to the Mortgagee and the Mortgagee shall apply them in accordance with Clause 13.7 (Payments) of the Facility Agreement.
(b) Subject to paragraph (a) above:
(i) each sum receivable in respect of a major casualty (being any casualty in respect of which the claim or the aggregate of the claims exceeds US$[·] (or its equivalent)), other than in respect of protection and indemnity risk insurances, shall be paid to the Mortgagee; and
(ii) the insurance moneys received by the Mortgagee in respect of any such major casualty shall be paid:
(A) to the person to whom the relevant liability shall have been incurred; or
(B) upon the Owner furnishing evidence satisfactory to the Mortgagee that all loss and damage resulting from the casualty has been properly made good and repaired, to the Owner or, at the option of the Mortgagee, to the person by whom any repairs have been or are to be effected.
(iii) The receipt by any such person referred to in sub-paragraphs (A) and (B) of paragraph (ii) above shall be a full and sufficient discharge of the same to the Mortgagee.
(c) Subject to paragraph (a) above, each sum receivable in respect of the Obligatory Insurances (insofar as the same are hull and machinery or war risks insurances) which does not exceed US$[·] or its equivalent shall be paid in full to the Owner or to its order and shall be applied by it for the purpose of making good the loss and fully repairing all damage in respect of which the receivable shall have been collected.
(d) Subject to paragraph (a) above, each sum receivable in respect of protection and indemnity risk Obligatory Insurances shall be paid direct to the person to whom the liability, to which that sum relates, was incurred, or to the Owner in reimbursement to it of moneys expended in satisfaction of such liability.
(e) Subject to paragraph (a), each sum receivable in respect of off-hire insurance shall be paid into the Owner's Earnings Account and shall be applied in accordance with the provisions of Clause 12 of the Facility Agreement.
(f) Notwithstanding any other provision in this Clause 12, all sums receivable in respect of Obligatory Insurances relating to a Total Loss shall be applied in accordance with Clause 13.7 (Payments) of the Facility Agreement.
IV VESSEL COVENANTS
The Owner will, and will procure that the Manager will, during the Security Period:-
(a) procure and maintain the valid and effective registration of the Vessel under the flag of [·] and shall ensure nothing is done or omitted by which the registration of the Vessel would or might be defeated or imperilled; and
(b) not change the name or port of registration of the Vessel without the prior written consent of the Mortgagee (such consent not to be unreasonably withheld).
The Owner will, and will procure that the Manager will, during the Security Period:-
(a) ensure that the Vessel is surveyed from time to time as required by the classification society in which the Vessel is for the time being entered and maintain and preserve the Vessel in good working order and repair, ordinary wear and tear excepted, and in any event in such condition as will entitle each to the classification of [·] or, if such classification is not available with the highest equivalent classification available, with Lloyds Register of Shipping, (or to the equivalent classification in another internationally recognised classification society of like standing acceptable to the Mortgagee), free of all overdue requirements and recommendations of that classification society;
(b) procure that all repairs to or replacement of any damaged, worn or lost parts or equipment shall be effected in such manner (both as regards workmanship and quality of materials) as not to diminish the value of the Vessel;
(c) not remove any material part of the Vessel, or any item of equipment installed on the Vessel unless the part or item so removed is forthwith replaced by a suitable part or item which is in the same condition as or better condition than the part or item removed, is free from any Security Interest or any right in favour of any person other than the Mortgagee and becomes on installation on the Vessel the property of the Owner and subject to the security constituted by the relevant Security Document(s) provided that the Owner may install and remove equipment owned by a third party if the equipment can be removed without any risk of damage to the Vessel;
(d) ensure that the Vessel complies with Applicable Laws from time to time applicable to vessels registered under the laws and flag of [·]; and
(e) not without the prior written consent of the Mortgagee (such consent not to be unreasonably withheld) cause or permit to be made any substantial change in the structure, type or performance characteristics of the Vessel and provide notification of such substantial changes in structure, type or performance characteristics of the Vessel to the Mortgagee and furthermore provide confirmation to the Mortgagee that such substantial change in structure, type or performance characteristics of the Vessel shall not result in a breach of any covenant under this Deed.
The Owner will, and will procure that the Managers will, during the Security Period:-
(a) operate and cause the Vessel to be operated in a manner consistent in all material respects with any and all laws, regulations, treaties and conventions (and all rules and regulations issued thereunder) from time to time applicable to the Vessel;
(b) not cause or permit the Vessel to trade with or within the territorial waters of any country wherein her safety may be imperilled by exposure to piracy, terrorism, arrest, requisition, confiscation, forfeiture, seizure, destruction or condemnation as prize;
(c) not cause or permit the Vessel to be employed in any manner which will or may give rise to any reasonable degree of likelihood that the Vessel would be liable to requisition, confiscation, forfeiture, seizure, destruction or condemnation as prize;
(d) not cause of permit the Vessel to be employed in any trade or business which is forbidden by international law or is illicit or in carrying illicit or prohibited goods;
(e) in the event of hostilities in any part of the world (whether war be declared or not) not cause or permit the Vessel to be employed in carrying any contraband goods and that she does not trade in any zone after it has been declared a war zone by any authority or by the Vessel's war risks Insurers unless the Vessel's insurers shall have confirmed to the Owner that the Vessel is held covered under the Obligatory Insurances for the voyage(s) in question; and
(f) not charter the Vessel or permit the Vessel to serve under any contract of affreightment with any foreign country or national of any foreign country which is specified by legislation or regulations of Korea or any other jurisdiction in which the Facility Office is located and such that, if the earnings or any part of earnings were derived from such charter or affreightment, that fact would render any Finance Document or the security conferred by the Security Documents unlawful.
14.1 Management of the Vessel
The Owner shall, and shall procure that the Managers shall, ensure that at all times after the Delivery Date of the Vessel:
(a) the Vessel is managed by the Managers; and
(b) no Manager shall terminate or materially vary the terms of such management or appoint an alternative manager provided that the Owner shall be entitled so to do with the prior written consent of the Mortgagee.
However, in the event that a Manager's appointment as manager of the Vessel ceases or is terminated in circumstances where it was not possible for the Owner to obtain the prior written consent of the Mortgagee, the Owner shall promptly and in any event within 10 days from the date of the termination of such Manager's appointment, provide to the Mortgagee details of a replacement manager, such manager to be satisfactory to the Mortgagee.
14.2 Repair of the Vessel
The Owner will not and will procure that the Managers will not, during the Security Period, put the Vessel into the possession of any person for the purpose of work being done upon her beyond the amount of US$[·] (or equivalent), other than for classification or scheduled dry docking unless such person shall have given an undertaking to the Mortgagee not to exercise any lien on the Vessel or Obligatory Insurances for the cost of that work or otherwise.
The Owner will, and will procure that the Managers will, during the Security Period:
(a) pay and discharge all obligations and liabilities whatsoever which have given or may give rise to liens (other than liens arising in the ordinary course of operation of the Vessel in each case for amounts the payment of which is not yet due or, if due and payable, is being disputed in good faith by appropriate proceeding (and for the payment of which adequate reserves have been provided or are and continue to be available)) on or claims enforceable against the Vessel and take all reasonable steps to prevent a threatened arrest of the Vessel;
(b) notify the Mortgagee promptly in writing of the levy of any distress on the Vessel or her arrest, detention, seizure, condemnation as prize, compulsory acquisition or requisition for title or use and (save in the case of compulsory acquisition or requisition for title or use) obtain her release within 21 days;
(c) pay and discharge when due all dues, taxes, assessments, governmental charges, fines and penalties lawfully imposed on or in respect of the Vessel or the Owner except those which are being disputed in good faith by appropriate proceedings (and for the payment of which adequate reserves have been provided or are and continue to be available) and provided that the continued existence of such dues, taxes, assessments, governmental charges, fines or penalties does not give rise to any reasonable degree of likelihood that the Vessel would be liable to arrest, requisition, confiscation, forfeiture, seizure, destruction or condemnation as prize; and
(d) pay and discharge all other obligations and liabilities whatsoever in respect of the Vessel and the Obligatory Insurances except those which are being disputed in good faith by appropriate proceedings (and for the payment of which adequate reserves have been provided or are and continue to be available) and provided that the continued existence of those obligations and liabilities in respect of the Vessel and the Obligatory Insurances does not give rise to any reasonable degree of likelihood that the Vessel would be liable to arrest, requisition, confiscation, forfeiture, seizure, destruction or condemnation as prize and provided always that the Vessel remains properly managed and insured at all times in accordance with the terms of the Facility Agreement.
16. EnvironmentAL Laws
The Owner shall, and shall procure that the Managers shall, at all times during the Security Period:
(a) comply with all applicable Environmental Laws including, without limitation, requirements relating to the establishment of financial responsibility (and shall require that all Environmental Affiliates of the Owner comply with all applicable Environmental Laws and obtain and comply with all required Environmental Approvals, which Environmental Laws and Environmental Approvals relate to the Vessel or her operation or her carriage of cargo); and
(b) promptly upon the occurrence of any of the following events, provide to the Mortgagee a certificate of an officer of the Owner or of the Owner's agents specifying in detail the nature of the event concerned:
(i) the receipt by the Owner or any Environmental Affiliate (where the Owner has knowledge of the receipt) of any Environmental Claim; or
(ii) any Release of Hazardous Materials.
The Owner shall, and shall procure that the Managers shall, during the Security Period:-
(a) promptly notify the Mortgagee of the occurrence of any accident, casualty or other event which has caused or resulted in or may cause or result in the Vessel being or becoming a Total Loss;
(b) promptly notify the Mortgagee of any requirement or recommendation made by any insurer or classification society or by any competent authority which is not complied with in a timely manner;
(c) promptly notify the Mortgagee of any intended dry docking of the Vessel;
(d) promptly notify the Mortgagee of any Environmental Claim being made in connection with the Vessel or its operation;
(e) promptly notify the Mortgagee of any claim for breach of the ISM Code being made in connection with the Vessel or its operation;
(f) give to the Mortgagee from time to time on request such information as the Mortgagee may reasonably require regarding the Vessel, her employment, position and engagements;
(g) provide the Mortgagee on request with copies of the classification certificate of the Vessel and of all periodic damage or survey reports on the Vessel which the Mortgagee may reasonably request;
(h) promptly furnish the Mortgagee with full information of any casualty or other accident or damage to the Vessel involving an amount in excess of US$[·] (or equivalent):
(i) give to the Mortgagee and its duly authorised representatives reasonable access to the Vessel for the purpose of conducting on board inspections and/or surveys of the Vessel and pay the reasonable expenses incurred by the Mortgagee in connection with the inspections and/or surveys provided that, unless a Default has occurred and is continuing, such inspections and/or surveys shall not take place at the expense of the Owner and the Mortgagee shall co-operate with the Owner in respect of the timing for and the place where such surveys take place in order to minimise disruption to the activities of the Vessel; and
(j) if the Mortgagee reasonably believes an Event of Default may have occurred, furnish to the Mortgagee from time to time upon reasonable request certified copies of the ship's log in respect of the Vessel.
(a) The Mortgagee shall without prejudice to its other rights and powers hereunder be entitled (but not bound) at any time and as often as may be necessary to take any such action as it may in its reasonable discretion think fit for the purpose of protecting the security created by this Deed.
(b) Without prejudice to the generality of the foregoing, if the Owner fails to effect and keep in force Obligatory Insurances in accordance with this Deed, it shall be permissible, but not obligatory, for the Mortgagee to effect and keep in force insurance or insurances in the amounts required under this Deed and entries in a protection and indemnity association or club and, if it deems necessary or expedient to it, to insure the war risks upon the Vessel, and the Owner will reimburse the Mortgagee for the costs of so doing.
(c) The Owner shall within 3 Business Days of demand indemnify the Mortgagee against any cost or expense incurred as a consequence of any Event of Default in or about the protection of this security.
V ENFORCEMENT
This security shall become immediately enforceable if an Event of Default has occurred and is continuing and the Mortgagee gives notice to the Owner in accordance with Clause 18.14 (Acceleration) of the Facility Agreement. The Mortgagee shall thereafter be entitled without notice immediately or at any time while an Event of Default is continuing to put into force and exercise all the powers and remedies possessed by it (whether at law, in equity, by virtue of the Mortgage and this Deed or otherwise) as mortgagee and chargee of the Vessel 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 Mortgagee by any applicable law;
(b) to take possession of the Vessel;
(c) to take over or institute all such proceedings in connection with the Vessel as the Mortgagee in its absolute discretion thinks fit and to discharge, compound, release or compromise the Vessel or claims in respect thereof including without limitation claims in respect of the Vessel which have given or may give rise to any charge or lien on or arrest of the Vessel or which are or may be enforceable by proceedings against the Vessel;
(d) to sell the Vessel but subject to the Mortgagee giving at least twenty (20) days prior notice that it intends to sell the Vessel (such notice to be given to the Owner and to each mortgagee of the Vessel whose mortgage is registered at the [·] Registry of Ships) with or without the benefit of the Time Charter (subject to any agreement with the Charterer) or other contract by public auction or private contract, at any place in the world, with or without advertisement, for cash or on credit or otherwise and upon such terms as the Mortgagee in its absolute discretion may determine, and at any such public sale to purchase the Vessel and to set off any purchase price against all or any part of the Secured Liabilities;
(e) to manage the Vessel and to insure, maintain, repair and reclass the Vessel, renew any parts thereof and to put her through survey and to hold, lay up, lease, charter, operate or otherwise use the Vessel in such manner and for such period as the Mortgagee deems necessary and generally to do all such things as the Owner of the Vessel could do in relation thereto, accounting only for the net proceeds (if any) of such use;
(f) to set-off any monies comprised in the Vessel against any of the Secured Liabilities; and
(g) to implement any contracts relating to the Vessel, or to agree with any other party thereto to determine the same on such terms and conditions as the Mortgagee and such party may agree.
20.1 Appointment of Receiver
(a) In addition to the powers conferred above at any time after the security hereby created shall have become enforceable, the Mortgagee may appoint in writing a receiver or a receiver and manager (hereafter a Receiver) of the Vessel and remove any Receiver so appointed and appoint another in his stead and may from time to time fix the remuneration of any such Receiver.
(b) The Mortgagee may by instrument in writing delegate to any such Receiver all or any of the rights, powers and discretions vested in it by this Deed.
(c) The Mortgagee shall not be responsible for misconduct or negligence on the part of such Receiver.
(d) Such Receiver shall be the agent of the Owner and the Owner shall be responsible for his acts, defaults and remuneration and liable on any contracts made by him.
20.2 Relationship with Mortgagee
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 Vessel may upon and at any time after the occurrence of an Event of Default be exercised by the Mortgagee in relation to the Vessel without first appointing a Receiver or notwithstanding the appointment of a Receiver.
All monies received by the Mortgagee or any Receiver in respect of the Vessel after this security constituted by the Mortgage and this Deed has become enforceable shall be applied by the Mortgagee 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 Mortgagee to recover any shortfall from the Owner.
(a) The Owner hereby by way of security, irrevocably and severally appoints the Mortgagee, any Receiver and any of their respective delegates or sub-delegates to be its attorney to take any action which the Owner is obliged to take under this Deed (but which, prior to an Event of Default, the Owner has failed, for whatever reason, to take).
(b) The Owner 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 22.
23. Protection of Third Parties
No person (including a purchaser) dealing with the Mortgagee or any Receiver appointed by it, or dealing with its or his attorneys or agents shall be concerned to enquire:
(a) whether the Secured Liabilities have become payable;
(b) whether any power exercised or purported to be exercised by it or him has become exercisable;
(c) whether any money remains due under the security hereby created;
(d) how any money paid to the Mortgagee or any Receiver is to be applied.
The Mortgagee may by power of attorney or in any other manner delegate to any person any right, power or discretion exercisable by the Mortgagee under this Deed. Any such delegation may be made upon the terms (including power to sub-delegate) and subject to any regulations which the Mortgagee may think fit.
VI MISCELLANEOUS
The Owner must pay and indemnify the Mortgagee against any stamp duty, registration or other similar Tax payable by the Mortgagee in connection with the entry into, performance or enforcement of this Deed and the Mortgage.
(a) The Owner will indemnify the Mortgagee and every Receiver or attorney appointed pursuant hereto in respect of all liabilities and expenses incurred by it, him or them in good faith in the execution or purported execution of any rights, powers or discretions vested in it, him or them pursuant hereto and to the Mortgage.
(b) The Mortgagee shall not be liable for any losses arising in connection with, or contemplation of, the exercise or purported exercise of any of its rights, powers and discretions in good faith hereunder and in particular without limitation the Mortgagee and any Receiver in possession shall not be liable to account as mortgagee in possession or for anything except actual receipts.
This Deed shall be governed by and construed in accordance with the laws of [·].
28. Waivers and Remedies Cumulative
The rights of the Mortgagee under this Deed or under the Mortgage:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the general law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any right is not a waiver of that right.
29.1 Benefit and burden
This Deed shall be binding upon the Owner and its successors in title and shall enure for the benefit of the Mortgagee and its successors in title and its assignees and transferees.
29.2 No assignment by the Owner
The Owner may not assign or transfer any of its rights or obligations under the Mortgage and this Deed.
30.1 For the benefit of the Mortgagee solely, the Owner irrevocably agrees that the Courts of England are to have non-exclusive jurisdiction to settle any disputes which may arise out of or in connection with the Mortgage and this Deed and confirms that the English courts are the most appropriate and convenient courts to settle any such dispute.
30.2 Without prejudice to the generality of Clause 30 the Mortgagee shall have the right to arrest and take action against the Vessel at whatever place the Vessel shall be found lying and for the purpose of any action which the Mortgagee may bring before the courts of such jurisdiction or other judicial authority and for the purpose of any action which the Mortgagee may bring against the Vessel any writ, notice, judgement or other legal process or documents may (without prejudice to any other method of service under applicable law) be served upon the Master of the Vessel (or upon anyone acting as the Master) and such service shall be deemed good service on the Owner for all purposes.
If any of the terms hereof is or becomes invalid or unenforceable for any reason under the laws of any jurisdiction, such invalidity or unenforceability shall not affect its validity or enforceability in any other jurisdiction or invalidate or make unenforceable any other term hereof.
This Deed may be executed in any number of counterparts and by each party hereto on separate counterparts each of which when executed and delivered shall constitute an original but all counterparts shall together constitute one and the same instrument.
IN WITNESS whereof this Deed has been duly executed on the date first above written.
SIGNED SEALED and DELIVERED
by
as a Deed
the duly authorised attorney
of
in the presence of:-
SIGNED SEALED and DELIVERED
by
as a Deed
the duly authorised attorney
of THE EXPORT-IMPORT BANK
OF
in the presence of:-
3_11 Deed of Covenants.DOC
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