TRANSFER AND ASSUMPTION AGREEMENT, 양수도 계약서, 영문 계약서

TRANSFER AND ASSUMPTION AGREEMENT

 

 

TABLE OF CONTENTS

Page

 

 

1.          Terms ···················································································· 2

2.          Transfer ················································································· 2

3.          Calculation of the Transferring Debts ·············································· 2

4.          Payment and Repayment of the Transferring Debts ······························ 3

5.          Representations and Warranties ····················································· 3

6.          Covenants ··············································································· 4

7.          Transfer Date and Retrospective Effect ············································· 4

8.          Indemnity ··············································································· 5

9.          Governing Law ········································································ 5

10.        Effectiveness ·········································································· 5

11.         Counterparts ··········································································· 5

 

 

 

 

 

TRANSFER AND ASSUMPTION AGREEMENT

 

THIS TRANSFER AND ASSUMPTION AGREEMENT (“Agreement”) is made as of the [DATE] by and among:

 

(1)         MR. AAA, court appointed receiver of BBB (the “Receiver”), a corporation organized and existing under the laws of [Name of the Country] with its registered head office at [•] (hereinafter referred to as the “Transferor”, which shall mean, as the context may require, either BBB, as a corporation represented by the Receiver or the Receiver as the independent authority having the full power to control the management of BBB, subject only to the approval of the reorganization court);

 

(2)         CCC CO., LTD. a corporation organized and existing under the laws of [Name of the Country] with its registered head office at [•] (hereinafter referred to as the “Transferee”); and

 

(3)         [SECURED CREDITOR BANK], a bank organized and existing under the laws of [Name of the Country], having its registered head office at [•], as creditor (the “Bank”, which expression shall include its successors, transferees and assignees).

 

WITNESSETH

 

WHEREAS, the Transferor and the Bank have entered into various contracts, agreements and other arrangements for various banking transactions, including the agreements and transactions listed in Exhibit A hereto (the “Loan Agreements”); and

 

WHEREAS, the parties hereto intend that the Transferee shall, in consideration of the title transfer of certain assets of the Transferor to the Transferee pursuant to an Asset Transfer Agreement dated [•], 20[•] (as from time to time amended and supplemented, the “Asset Transfer Agreement”), assume the outstanding debts and liabilities of the Transferor owing to the Bank under the Loan Agreement as of [•], 20[•] as fully stated in Exhibit B attached hereto (as may be reduced in amount or otherwise adjusted under this Agreement, the “Transferring Debts”) and, for that purpose, the Loan Agreements shall be transferred by the Transferor relinquishing its rights and interests and being discharged from its duties and obligations with respect to the Transferee Debts under the Loan Agreements and by the Transferee receiving such rights and interests and assuming the Transferor thereunder.

NOW, THEREFORE, the parties hereto have agreed as follows:

 

1.          Terms

 

1.1        All terms used herein shall have the meaning set forth in the Asset Transfer Agreement and if applicable, the relevant Loan Agreements, except as otherwise expressly defined herein.

 

1.2        “Transfer Date” shall have the meaning set forth in Section 7 hereof.

 

2.          Transfer

 

2.1        On the Transfer Date:

 

(a)         The Transfer shall be released form any and all obligations towards the Bank with respect to the Transferring Debts as the borrower, debtor or applicant under the Loan Agreements (such obligations being referred to as “Discharged Obligations”); and

 

(b)         the Transferee shall assume the discharged obligations towards the Transferee as if the Transferee had been an original party to the Loan Agreements as a borrower, debtor or an applicant thereunder subject to the obligations assumed under the terms of this Agreement.

 

2.2        On the Transfer Date, all security and security interests (the “Securities Interests”) that the Bank has with respect to the Transferring Debts on any of the assets to be transferred from the Transferor to the Transferee pursuant to the Asset Transfer Agreement (the “Assets”) shall be transferred to and assumed by the Transferee. The parties hereto shall provide full cooperation for the effective transfer of the Security Interests and to reflect all necessary changes in court registrations in connection with such transfer, as soon as possible following the execution of this Agreement.

 

3.          Calculation of the Transferring Debts

 

3.1        Total amount of the Transferring Debts shall be the amount owed by the Transferor to the Bank as of [•]. 20[•], as such amount may subsequently be confirmed and approved by the reorganization court, to the extent that such amount is fully secured by the Security Interests. The details of the Transferring Debts shall be as shown on Exhibit [•] attached hereto.

 

3.2        The Bank agrees that if the Transferor’s reorganization plan (the “Reorganization plan”) as prepared and submitted by the Receiver is approved by the interested parties and the reorganization court, and if the amount owed by the Transferor to the Bank under this Reorganization Plan is less than the total amount of the Transferring Debts, with or without interest thereon, the principal amount of the Transferring Debts and/or any applicable interest thereon, shall be reduced to the same extent as they would have been reduced under the Reorganization Plan, and that the Transferee shall be fully released and discharged from any payment obligations for such reduced amount of the Transferring Debts.

 

4.          Payment and Repayment of the Transferring Debts

 

4.1        The Transferee shall repay the Transferring Debts, including interest to accrue thereon after the Transfer Date, pursuant to the terms and conditions of the Loan Agreements, provided that for any payment due prior to the reorganization court’s approval of the Reorganization Plan, the Transferee shall make such payment to the Bank within [•] business days following the reorganization court’s approval of the Reorganization Plan, and provided, further, that should the payment terms of the Transferring Debts be changed or modified by the Reorganization Plan, the terms and conditions of the Loan Agreements shall also be, and be deemed to have been, changed or modified in accordance therewith.

 

4.2        Without prejudice to the foregoing, the Transferee shall, on or after the Transfer Date, be entitled to request the Bank to implement and perform any and all provisions of this Agreement, including amending the court registrations with respect to the Security Interests, at the expense of the Transferee.

 

5.          Representations and Warranties

 

Each of the Transferor, the Transferee and the Bank hereby represents and warrants that (i) it has full power, authority and legal rights to enter into, and has taken all corporate and other actions necessary to execute and deliver, this Agreement and to perform and observe the terms and conditions hereof and of the Loan Agreements as transferred hereby, and (ii) its obligations hereunder, or those which may be contemplated herein to be assumed by it, constitute or, as the case may be, will constitute its legal, valid and binding obligations. 

6.          Covenants

 

6.1        The Transferor hereby undertakes with the Bank and the Transferee that it will not incur, even before the Transfer Date, any additional debts or liabilities from the Bank in connection with the Loan Agreements to which the Transferor would no longer be a party on and after the Transfer Date.

 

6.2        The Bank hereby agrees and acknowledges that it will not exercise any or the Security Interest to recover or collect any claims against the Transferor. For clarity, the Bank hereby agrees and acknowledges that it shall not exercise any mortgage rights against the Assets to recover any claim amount against the Transferor even if the Bank remains as the mortgagee in the real property registry after the transfer of title to the Assets. The provisions of this Section 6.2 shall not prevent, however, the Bank from exercising the Security Interests in the event of the Transferee’s default in repaying the Transferring Debts.

 

7.          Transfer Date and Retrospective Effect

 

7.1        On the date on which the Reorganization plan is approved by the reorganization court (heretofore referred to as the “Transfer Date”), the Transferor shall be, and shall be deemed to have been, released from its obligations and liabilities with respect to the Transferring Debt effective retrospectively as of the effective date of this Agreement.

 

7.2        The effectiveness of the transfer of the Transferring Debts hereunder is conditional upon the successful closing of the transactions contemplated by the asset Transfer Agreement. Each of the Transferor and the Bank hereby agrees and acknowledges that, if the transactions contemplated by the Asset Transfer Agreement are not successfully consummated or invalidated for any reason whatsoever, the transfer hereunder shall not be effective and the Transferor shall remain responsible for its obligations under the Loan Agreements.

 

7.3        Notwithstanding any provision to the contrary herein, if the Reorganization Plan is not approved by the reorganization court within [•] months from the date of this Agreement, the Transferee may terminate this Agreement, whereupon the Bank shall immediately invalidate and deregister any and all Security Interests in its favor with respect to the Assets in exchange for the Transferee’s undertaking to make the cash payments of the Transferring Debts as contemplated by the Asset Transfer Agreement.

 

8.          Indemnity

 

The Transferor undertakes to fully indemnify the Transferee and keep the Transferee fully indemnified against any and all losses, liabilities, costs, claims, actions or demands which the Transferee might suffer or incur as a result of or in connection with this Agreement.

 

9.          Governing Law

 

This Agreement and the rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of [Name of the Country].

 

10.       Effectiveness

 

This Agreement shall take effect upon receipt by the Receiver of an approval from the reorganization court with respect to the execution of this Agreement and performance by the Transferor of its obligations hereunder.

 

 

11.        Counterparts

 

This Agreement may be signed in any number of counterparts. Any single counterpart or set of counterparts signed by all the parties hereto shall constitute a full and original agreement for all purposes.

 

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered by their duly authorized representatives on the date first above written.

 

Transferor: : MR, [AAA]

 RECEIBER OF BBB

 IN THE REORGANIZATION PROCEEDING

 

 By :                               

 Name : [•]

 Title : [•]

 

 

Transferee : [CCC CO.,  LTD.]

 

 By :                               

 Name : [•]

 Title : [•]

 

 

BANK : [SECURED CREDITOR BANK]

 

 By :                               

 Name : [•]

 Title : [•]

11 Transfer and Assumption Agreement.doc