THIS ASSIGNMENT OF EARNINGS is made on the day of by:-
(1) [ ] (Registration No.: [ ]), a company incorporated in Singapore and having its registered office at [ ] (the "Assignor");
in favour of
(2) Oversea-Chinese Banking Corporation Limited, of 65 Chulia Street #[09-00] OCBC Centre, Singapore 049513 (the "Assignee").
WHEREAS:-
(A) The Assignor is the sole, absolute and unencumbered owner of all the shares in the Vessel (as defined below).
(B) The Assignee has granted or agreed to grant [ ] (the "Borrower") the Facilities (as defined below) upon the terms and subject to the conditions set out in the Financing Documents (as defined below).
(C) It has been agreed between the Assignee and Assignor that the Secured Debt (as defined below) shall be secured to the Assignee in the manner hereinafter appearing.
IT IS AGREED as follows:-
1. INTERPRETATION
1.1 Definitions: In this Assignment, except to the extent that the context requires otherwise:
"Account" means the Assignor’s current account with the Assignee or such account opened or (if required by the Assignee) to be opened by the Assignor with the Assignee pursuant to Clause 3, such account to include any substitute account or revised account or revised designation or number whatsoever or such other account as the Assignee may approve in writing.
"Act" means the Conveyancing and Law of Property Act, Chapter 61 of Singapore.
"Assigned Property" means all the assets and property of the Assignor assigned under or pursuant to Clause 4.
"Assignee" includes its successors in title and assigns and any company with which it may amalgamate and any other person for the time being the assignee under this Assignment.
"Borrower" includes its successors in title and permitted assigns and any company with which it may amalgamate and any other person for the time being the borrower under the Facility Letter;
"Charter" means any charterparty which has been or which may hereafter be entered into in respect of the Vessel by the Assignor or by any person, firm or company on its behalf, as amended, modified or supplemented from time to time.
"Contract of Affreightment" means any contract or engagement of affreightment or for the carriage or transportation of cargo, mail or passengers or any of them, whether now existing or hereafter entered into in respect of the Vessel, by the Assignor or any person, firm or company on its behalf, as amended or supplemented from time to time.
"Deed of Covenants" means the Deed of Covenants executed or to be executed by the Assignor in favour of the Assignee;
OCBC Legal / Jun 2009 "Default Rate" means the rate specified in the Facility Letter or such other relevant Financing Document, or such other rate as the Assignee may from time to time stipulate, as the default rate for the payment of interest on all overdue payment in respect of the Facilities including trust receipts, instalment of principal and interest on loans, fees, commissions and all other charges not paid when due;
"Facilities" means loans, advances, overdrafts, indemnities, guarantees and facilities whereby the Borrower has access to funds or financial guarantees and facilities whereby the Assignee incurs liabilities on behalf of the Borrower or a third party at the Assignor's request, facilities relating to foreign exchange transactions, letters of credit and trust receipt facilities and other credit facilities and accommodation relating to the accepting, endorsing and discounting of cheques bills of exchange promissory notes or other negotiable instruments and any credit or banking accommodation or other accommodation now or hereafter granted or to be granted from time to time by the Assignee on the security of the Security Documents, and "Facility" means any of them;
"Facility Letter" means the facility letter(s) and/or agreement(s) (as revised amended or supplemented) from time to time entered into between the Borrower and the Assignee outlining the terms and conditions of the Facilities, which expression shall include any variation thereof or agreement supplemental thereto or any contract in addition, replacement or renewal thereof;
"Financing Documents" means (i) the Facility Letter, (ii) the Assignee's Standard Terms and Conditions Governing Banking Facilities, (iii) the Assignee's standard form documents (whether or not executed by the Borrower or the Assignor) under or in connection with the Facilities, (iv) any loan, credit or other agreement or document under or pursuant to which any moneys or liabilities whatsoever may, at any time (now or hereafter), be due, owing or payable by the Borrower and/or the Assignor to the Assignee, whether actually or contingently, solely or jointly and/or severally with another or others or as principal or as surety or otherwise, under or in connection with the Facilities and (v) the Security Documents (and any reference to a Financing Document shall be a reference to that Financing Document as from time to time revised, amended, supplemented, varied, superseded or modified and any document which revises, amends, supplements, varies, supersedes or modifies that Financing Document);
"Mortgage" means the first priority statutory mortgage of the Vessel executed or to be executed by the Assignor in favour of the Assignee and shall include the Mortgage as supplemented by the Deed of Covenants;
"Obligors" means any person (other than the Borrower, the Assignor or the Assignee) who is a party to any of the Financing Documents and includes such other person or persons who may from time to time guarantee or secure the obligations of the Borrower and/or the Assignor to the Assignee;
"Secured Debt" means:
(a) all sums (whether principal, interest, commission, fee or otherwise) which are or at any time may be or become due and owing by the Borrower and/or the Assignor to the Assignee including but not limited to those arising under or in connection with the Financing Documents; and
(b) all other liabilities and moneys (whether principal, interest, commission, fee or otherwise) which are now or from time to time hereafter may be or become owing or due and payable by the Borrower and/or the Assignor to the Assignee in respect of the Facilities, whether alone or jointly with any other person and on any account whatsoever, whether current or otherwise, whether the same are actual or contingent liabilities, and whether as principal debtor, guarantor, surety or otherwise howsoever;
"Security Documents" shall mean each or (as the context may require) any or all of the following:-
(a) the Deed of Covenants,
OCBC Legal / Jun 2009 2 (b) the Mortgage,
(c) the Deed of Assignment of Insurances;
(d) this Assignment;
(e) any other document constituting security for the Secured Debt and all other variations or amendments or supplemental deeds to any one or more of them made from time to time;
"Vessel" means the vessel named and more particularly described in Schedule 1 and includes (if applicable) her boilers, engines, machinery, masts, spares, rigging, boats, anchors, chains, tackle, apparel, furniture, fittings, appliances, equipment, spare gear, replacement parts, fuel, consumables or other stores, belongings and all other appurtenances belonging to or appertaining to the Vessel (whether now owned or hereafter acquired and whether or not on board) and all additions, improvements and replacements thereto.
1.2 Miscellaneous Construction: The headings in this Assignment are inserted for convenience only and shall be ignored in construing this Assignment. All terms and references used in this Assignment and which are defined or construed in the Financing Documents or any of the other Security Documents but are not defined or construed in this Assignment shall have the same meaning and construction in this Assignment. Unless the context otherwise requires, words (including words defined herein) denoting the singular number only shall include the plural and vice versa. The words "written" and "in writing" include any means of visible reproduction. References to "Clauses" and "Schedules" are to be construed as references to clauses of, and schedules to, this Assignment. Any reference to a time of the day is a reference to Singapore time unless otherwise stated.
2. COVENANT TO PAY
2.1 The Assignor hereby covenants that it will pay and discharge:
2.1.1 the Secured Debt in accordance with the terms of the Financing Documents;
2.1.2 (on a full indemnity basis) on demand all costs, charges and expenses howsoever incurred by the Assignee or by any receiver or by any delegate or sub-delegate appointed by the Assignee pursuant to this Assignment or such liabilities as aforesaid including (but without prejudice to the generality of the foregoing) remuneration payable to any such receiver, delegate or sub-delegate as aforesaid and all costs, charges and expenses incurred in the protection, realisation or enforcement of the security constituted by this Assignment or in maintaining, managing, realising or exercising any other right, power, authority or discretion in relation to the Assigned Property or any part thereof incurred pursuant to this Assignment; and
2.1.3 interest on each of the foregoing costs, charges and expenses calculated day by day from demand until full discharge (whether before or after judgment) at the rate determined pursuant to the Default Rate; Provided that in relation to such costs, charges and expenses as are mentioned in Clause 2.1.2 above, interest shall accrue and be payable as from the dates on which the same are incurred or paid by the Assignee or by the receiver, delegate or sub-delegate as aforesaid under the terms of his appointment without the necessity for any demand being made thereof. Any interest payable under this Clause 2.1.3 which is not paid when due shall be added to the overdue sum and itself bear interest accordingly.
3. ACCOUNT
The Assignor hereby undertakes to and agrees with the Assignee that it will at all times during the continuance of this Assignment open and maintain the Account with the Assignee, and that all sums which may at any time be received by or payable to the Assignor under or in connection with any Charter or Contract of Affreightment shall be paid into the Account. If such sums are not OCBC Legal / Jun 2009 3 paid directly into the Account, they shall, until credited into the Account, be deemed held on trust by the Assignor for and on behalf of the Assignee. The Assignee shall not be obliged at any time to make any enquiry or investigate into, or verify, the nature or sufficiency of such sums paid or credited into the Account.
4. ASSIGNMENT
4.1 Assignment: The Assignor as beneficial owner, and as a continuing security for the performance, payment and discharge of the Secured Debt and any other amount owing under Clause 2.1 and for the observance and performance by the Borrower and/or the Assignor of their respective obligations under the Financing Documents, hereby assigns and agrees to assign absolutely to the Assignee (but subject to reassignment at the request and cost of the Assignor upon payment and discharge of the Secured Debt and any other amount owing under Clause 2.1 and on a without recourse or warranty basis), free from all liens, charges and other encumbrances, all the Assignor's present and future rights, title and interest in and to, and all benefits accrued and to accrue to the Assignor under or in respect of the following described property, rights, title and interests:
4.1.1 any Charter, Contract of Affreightment or any other contract for the employment or use of the Vessel of any kind whatsoever;
4.1.2 all sums payable to or for the account of the Assignor pursuant to the provisions of any Charter, Contract of Affreightment or any other contract for the employment or use of the Vessel of any kind whatsoever and all freights, hires and any other moneys of whatever kind which may at any time be earned and to be earned, due or to become due, paid or payable to or for the account of the Assignor, of whatsoever nature, including, without limitation, remuneration for salvage and towage services and any demurrage and detention moneys, arising out or as a result of the ownership and/or operation of the Vessel by the Assignor or its agents;
4.1.3 all moneys and claims for moneys due and to become due to the Assignor and all claims for damages arising out of the breach of any Charter, Contract of Affreightment or other contract for the employment or use of the Vessel of any kind whatsoever and in and to any and all claims and causes of action for money, loss or damages that may accrue or belong to the Assignor or arising out of or in any way connected with the present or future use, operation or management of the Vessel or arising out of or in any way connected with any present or future requisition, bill of lading, Charter, Contract of Affreightment or other contract for the employment or use of the Vessel; and
4.1.4 any other proceeds of the property specified in Clauses 4.1.1 to 4.1.3 above.
4.2 Charge: In addition to and without prejudice to Clause 4.1, the Assignor as beneficial owner, and as a continuing security for the performance, payment and discharge of the Secured Debt and any other amount owing under Clause 2.1 and for the observance and performance by the Assignor of its obligations under the Financing Documents, hereby charges and agrees to charge by way of a first fixed charge in favour of the Assignee all moneys from to time standing to the credit of the Account whether in addition to or by way of renewal, extension or replacement of any moneys previously deposited in or credited to the Account or otherwise, together with any interest from time to time accruing in respect of such moneys.
4.3 Exoneration of Assignee: The Assignee shall not be obliged at any time to investigate into, or verify, the sufficiency of proceeds paid or credited into the Account.
5. CONTINUING SECURITY
5.1 Continuing Security: The security created by this Assignment shall constitute and be a continuing security notwithstanding any partial or intermediate settlement of account or reduction or repayment of the Secured Debt or any other matter or thing whatsoever, and shall be in addition to and shall not be in any way prejudiced or affected by any collateral or other OCBC Legal / Jun 2009 4 agreement, security, guarantee, indemnity, right, remedy or lien of whatever nature which the Assignee may now or at any time hereafter have or judgment or order obtained by the Assignee for all or any part of the Secured Debt, nor shall any such collateral or other agreement, security, guarantee, indemnity, right, remedy or lien or judgment or order or the liability of the Assignor or any others not party hereto for all or any part of the Secured Debt be in any way prejudiced or affected by this Assignment.
5.2 Validity of Security: The security created by this Assignment shall not be discharged or affected by any matter or thing whatsoever including, without limitation:
5.2.1 any time, indulgence, concession, waiver or consent at any time given to the Borrower, the Assignor, any Obligor or any other person;
5.2.2 any amendment or supplement to any of the Financing Documents or any other agreement, security, guarantee or indemnity;
5.2.3 the making or absence of any demand on the Borrower, the Assignor , any Obligor or any other person for performance and/or payment;
5.2.4 the enforcement or absence of enforcement of any of the Financing Documents or any other agreement, security, guarantee, indemnity, right, remedy or lien;
5.2.5 the taking, existence or release of any of the Security Documents or any other agreement, security, guarantee, indemnity, right, remedy or lien (including the release of any part of the Assigned Property);
5.2.6 the insolvency, winding-up, bankruptcy, amalgamation, reconstruction or reorganisation of the Borrower, the Assignor, any Obligor or any other person who is a party to any of the Financing Documents (or the commencement of any of the foregoing); or
5.2.7 the illegality, invalidity or unenforceability of or any defect in any provision of any of the Financing Documents or any other security, guarantee or indemnity or any of the obligations of any of the parties thereunder.
5.3 Suspense Accounts: Any amount received or recovered by the Assignee in respect of any amount received or recovered pursuant to this Assignment and/or any of the powers thereby conferred may be placed by the Assignee in a suspense account. That amount may be kept there unless and until the Assignee is satisfied that it has irrevocably received or recovered the Secured Debt and any other amount owing under Clause 2.1.
5.4 Continuation/Opening of Accounts: In the event of the commencement of the winding-up of the Borrower, the Assignor or any Obligor or if this Assignment ceases for any reason to be binding on the Assignor, or if the Assignee shall at any time receive notice (either actual or otherwise) of any subsequent mortgage, charge, assignment, hypothecation, pledge, lien or other like interest, matter, event or transaction affecting the Assigned Property or any part of it, the Assignee may open a new account or accounts for the Borrower, the Assignor or such Obligor (as the case may be). If the Assignee does not in fact open such new account then, unless it gives express written notice to the Borrower, the Assignor or such Obligor (as the case may be) to the contrary, the Assignee shall be treated as if it had in fact opened such account or accounts at the time when it received such notice. As from that time and unless such express written notice shall be given to the Borrower, the Assignor or such Obligor (as the case may be) by the Assignee, all payments by or on behalf of the Borrower, the Assignor or such Obligor to the Assignee shall be credited, or treated as having been credited, to a new account of the Borrower, the Assignor or such Obligor (as the case may be) and not as having been applied in reduction of the Secured Debt at the time when such notice was received.
6. REPRESENTATIONS AND WARRANTIES
6.1 The Assignor represents and warrants to and for the benefit of the Assignee as follows:
OCBC Legal / Jun 2009 5 6.1.1 Powers: it has the power to enter into and perform and comply with its obligations under this Assignment and to create the security expressed to be created by this Assignment;
6.1.2 Authorisation and Consents: all action, conditions and things required to be taken, fulfilled and done (including the obtaining of any necessary consents) in order:
(i) to enable it lawfully to enter into, exercise its rights (if any) and perform and comply with its obligations under this Assignment (including the creation of the security expressed to be created by this Assignment);
(ii) to ensure that those obligations and such security are valid, legally binding and enforceable and, in the case of such security, will rank ahead of any other present or future security on the Assigned Property or any part thereof; and
(iii) to make this Assignment admissible as evidence in the courts of Singapore, have been taken, fulfilled and done (save for the registration of the particulars of the charge created by this Assignment at the Accounting and Regulatory Authority of Singapore (which shall be effected by the Assignor within the prescribed period under the Companies Act, Chapter 50 of Singapore));
6.1.3 Obligations Binding: its obligations under this Assignment and the security expressed to be created by this Assignment are valid, binding and enforceable and, in the case of such security, will rank ahead of any other present or future security on or over the Assigned Property or any part thereof;
6.1.4 Litigation: no litigation, arbitration or administrative proceeding is current or pending or, so far as it is aware, threatened:
(i) to restrain its entry into, exercise of its rights (if any) under and/or performance or enforcement of or compliance with its obligations under, or the creation of the security expressed to be created by, this Assignment; or
(ii) which has or could have a material adverse effect on it;
6.1.5 Winding-up:
(i) no meeting has been convened for its winding-up or for the appointment of a receiver, trustee, judicial manager or similar officer of it, its assets or any of them;
(ii) no such step is intended by it and, so far as it is aware, no petition, application or the like is outstanding for its winding-up or for the appointment of a receiver, trustee, judicial manager or similar officer of it, its assets or any of them; and
(iii) no demand under Section 254(2)(a), and no enquiry under Section 344, of the Companies Act, Chapter 50 of Singapore has been received by it;
6.1.6 Binding Contract:
(i) each of the Charters or Contracts of Affreightment constitutes or will, when executed, constitute the valid, binding and enforceable obligations of it and the relevant charterer or shipper and is or will be in full force and effect; and
(ii) neither the Assignor nor such charterer or shipper is in default thereunder in any respect or has asserted or threatened to assert any right of termination or repudiation thereof;
6.1.7 Ownership: it is and will at all times be the sole and beneficial owner of the Assigned Property;
6.1.8 Non-Violation of Laws: its entry into, exercise of its rights and/or performance of or compliance with its obligations under this Assignment and the Security Documents to OCBC Legal / Jun 2009 6 which it is a party do not and will not violate, or exceed any borrowing or other power or restriction granted or imposed by:
(i) any law to which it is subject; or
(ii) its Memorandum and Articles of Association; and
6.1.9 Existing Security: no security exists on or over any of the Assigned Property or the Account except for the security created by the Security Documents.
6.2 Repetition: The Assignor warrants to and for the benefit of the Assignee that each of the warranties in Clause 6.1 above will be correct and complied with in all material respects at all times during the continuance of the security created by this Assignment as if repeated then by reference to the then existing circumstances.
7. UNDERTAKINGS
The Assignor hereby undertakes to the Assignee that:
7.1 Notice of Assignment: it will forthwith [on the execution hereof][at the Assignee’s request], give to any charterer under any Charter and any shipper under any Contract of Affreightment a notice of this Assignment in the form of Schedule 2 (or in such other form as the Assignee may require) and procure that each such person so notified promptly delivers to the Assignee an acknowledgement of such notice in the form of Schedule 3 (or in such other form as the Assignee may require);
7.2 Disposition: it will not (and will not agree, conditionally or unconditionally, to) sell, assign, transfer or otherwise dispose, or create (or agree, conditionally or unconditionally, to create), or have outstanding any security on or over any part of the Assigned Property or the Account or any interest in the Assigned Property or the Account, except for the security created by this Assignment;
7.3 Performance: it will take all steps necessary or advisable to secure the due performance by each of the charterers and shippers of their respective obligations under the Charter or Contract of Affreightment to which each such charterer or shipper is a party;
7.4 Charters/Contracts of Affreightment: it will promptly and diligently perform and comply with its obligations contained in the Charters and Contracts of Affreightment, remedy any breach of its obligations under any of the Charters and Contracts of Affreightment, notify the Assignee of any breach or default under any of the Charters or Contracts of Affreightment and institute and prosecute all such proceedings as the Assignee may consider to be necessary or advisable to preserve or protect its interests and the interests of the Assignee under the Charters and Contracts of Affreightment;
7.5 Frustration: it will not make or agree to any claim that any of the Charters or Contracts of Affreightment is frustrated or invalid;
7.6 Exercise: it will at no time exercise any right or power conferred on it by any of the Charters or Contracts of Affreightment in any manner which is in the reasonable opinion of the Assignee adverse to the interests of the Assignee under this Assignment;
7.7 Impairment of Security: it will not take or omit to take any action, the taking or omission of which may result in any alteration or impairment of any Charter or Contract of Affreightment or this Assignment or of any of the rights, title, interest or benefits created by any Charter or Contract of Affreightment or this Assignment;
7.8 Enforcement of Rights: it will do or permit to be done each and every act or thing which the Assignee may from time to time require to be done for the purpose of enforcing the rights of the Assignee under the Charters, the Contracts of Affreightment and this Assignment and will allow its name to be used as and when required by the Assignee for that purpose; OCBC Legal / Jun 2009 7 7.9 Rendering Charters/Contracts of Affreightment Void: it will not do or omit to do, or suffer or permit to be done, anything which might render any of the Charters or Contracts of Affreightment to be or become, in any respect, invalid, void or voidable;
7.10 Cancellation/Rescissions/Termination: it will not, except with the prior written consent of the Assignee (such consent not to be unreasonably withheld), cancel, rescind or otherwise terminate or agree to any cancellation, rescission or termination, or accept any repudiation or purported repudiation of, any Charter or Contract of Affreightment;
7.11 Notices: it will send forthwith to the Assignee, a copy of all notices received or given by it under any Charter or Contract of Affreightment;
7.12 Variation: it will not, except with the prior written consent of the Assignee (such consent not to be unreasonably withheld), make or agree to any material amendment, modification or variation of any Charter or Contract of Affreightment, agree to any extension of time period for any matter in any Charter or Contract of Affreightment, release any charterer or shipper from any of its obligations under any Charter or Contract of Affreightment or waive any breach of any Charter or Contract of Affreightment;
7.13 Payment: it will procure that each charterer or any relevant person shall forthwith pay the all moneys due and to become due under or pursuant to the relevant Charterparty or Contract of Affreightment to the Account;
7.14 Account Access: it shall not withdraw (or attempt to withdraw), or deal with (or agree, conditionally or unconditionally), to deal with any of the moneys from time to time standing to its credit in the Account or purport or attempt to do any other act or thing which may in any way delay or prejudice the right of the Assignee to receive payment of such moneys. Notwithstanding Clause 11.2, it irrevocably authorises the Assignee throughout the Security Period to access the Account; and
7.15 No Equities: it will not create or permit to exist any equities between any charterer or shipper under any Charter or Contract of Affreightment and itself which may be to the detriment of the Assignee in any respect.
8. CONTINUING OBLIGATIONS
It is further agreed and declared by the Assignor that notwithstanding this Assignment:
8.1 Assignor to Remain Liable: the Assignor shall remain liable under each Charter or Contract of Affreightment to perform all the conditions and obligations provided in such Charter or Contract of Affreightment to be observed or performed by it and neither this Assignment nor the receipt by the Assignee of any payment pursuant hereto shall cause the Assignee to be under any obligation or liability under any Charter or Contract of Affreightment or to perform or observe any of the representations, warranties, conditions, covenants, agreements or other terms of any Charter or Contract of Affreightment; and
8.2 No Enquiry: the Assignee shall not be obliged:
8.2.1 to make any inquiry as to the nature or sufficiency of any payment received under or pursuant to any Charter or Contract of Affreightment; or
8.2.2 to make any claim or take any other action to collect any moneys or to enforce any rights and benefits hereby assigned to the Assignee or to which the Assignee may at any time be entitled under this Assignment;
OCBC Legal / Jun 2009 8 9. RIGHTS AFTER DEFAULT
At any time upon the occurrence of an Event of Default, but without prejudice to any of the other provisions of this Assignment, the Assignee shall be entitled:
9.1 Possession: to collect and take possession of the Assigned Property or any part thereof and, in that connection, to institute and maintain all such legal proceedings as the Assignee may deem fit and, without prejudice to the generality of the foregoing, to apply all moneys standing to the credit of the Account in or towards settlement of the Secured Debt.
9.2 Performance: to perform and enforce any Charter or Contract of Affreightment;
9.3 Amendment: to agree to the amendment, variation, termination or repudiation of any Charter or Contract of Affreightment;
9.4 Disposal: to sell, assign, transfer or otherwise dispose of any of the Assigned Property or any Charter or Contract of Affreightment or of any interest therein or thereunder or of any property, assets or rights received thereunder or pursuant thereto;
9.5 Dealing: in all other respects, to deal with, enjoy and exploit any Charter or Contract of Affreightment as if it were the contracting party thereto; and
9.6 Powers as Assignee: otherwise to put into force and effect, all rights, powers and remedies available to it at law or otherwise as assignee of the Assigned Property.
10. INDEMNITY
10.1 To Assignee: The Assignee shall be indemnified by the Assignor from and against all actions, losses, claims, proceedings, costs, demands and liabilities which may be suffered by the Assignee by reason of any failure of the Assignor to perform any of its obligations under any Charter or Contract of Affreightment or this Assignment or in the exercise or execution of any of the rights, powers, remedies, authorities or discretions vested in the Assignee under or pursuant to this Assignment.
10.2 Repayment of Monies: If the Assignee sees fit to implement its rights hereunder with respect to any Charter or Contract of Affreightment, all moneys so expended by the Assignee for the purposes aforesaid shall on demand be repaid by the Assignor to the Assignee together with interest thereon calculated day by day from the date such moneys were expended until full payment (whether before or after judgment) at the Default Rate.
11. APPLICATION OF MONEYS
11.1 The Assignor undertakes to the Assignee that it will at all times during the continuance of this Assignment maintain the Account with the Assignee and that it will not withdraw (or attempt to withdraw), or deal with (or agree, conditionally or unconditionally to deal with), any of the moneys from time to time standing to its credit in the Account or purport or attempt to do any other act or thing which may in any way delay or prejudice the right of the Assignee to receive payment of such moneys.
11.2 The Assignee shall have power at all times, either in its own name or in the name of the Assignor, and without notice to the Assignor or any other person, to generally operate the Account and withdraw or convert into any currency any moneys from time to time standing to the credit of the Assignor in the Account.
11.3 Any moneys received by the Assignee under or pursuant to this Assignment and/or the powers conferred by the Assignment shall be applied in the following manner and order:
OCBC Legal / Jun 2009 9 11.3.1 first, in or towards payment of all fees, costs, charges and expenses of and incidental to the exercise by the Assignee of all or any of the powers contained in this Assignment and/or the Security Documents; 11.3.2 secondly, in or towards payment of interest and all other sums (other than principal) owing to the Assignee under this Assignment or in respect of the Secured Debt;
11.3.3 thirdly, in or towards payment of principal (including sums payable contingently in respect of guarantees, letters of credit and similar obligations entered into by the Assignee at the request of the Assignor) payable to the Assignee in respect of the Secured Debt; and
11.3.4 thirdly, in payment of any surplus to the Assignor or any other person lawfully entitled thereto.
12. ENFORCEMENT
12.1 Consolidation: Section 21 of the Act shall not apply to the security created by this Assignment.
12.2 Section 25 not to apply: The Assignee may exercise the power of sale conferred on mortgagees by the Act (as varied and extended by this Assignment) free from the restrictions imposed by Section 25 thereof.
12.3 Enforceability of Security: The security created by this Assignment shall become immediately enforceable and the power of sale and other powers conferred by Section 24 of the Act (as varied and extended by this Assignment) and all the other powers conferred on the Assignee by this Assignment shall be immediately exercisable at any time after the occurrence of an Event of Default.
13. DELEGATION
The Assignee may at any time and from time to time delegate by power of attorney or in any other manner to any person or persons or fluctuating body of persons all or any of the powers, authorities and discretions which are for the time being exercisable by the Assignee under this Assignment in relation to the Assigned Property or any part thereof and any such delegation may be made upon such terms and conditions (including the power to sub-delegate) and subject to such regulations as the Assignee may think fit and the Assignee shall not be in any way liable or responsible to the Assignor for any loss or damage arising from any act, default, omission or misconduct on the part of any such delegate or sub-delegate.
14. FURTHER ASSURANCE
The Assignor shall at its own expense execute and do all such assurances, acts and things as the Assignee may require for perfecting or protecting the security over the Assigned Property or any part thereof or for facilitating the realisation of such property and the exercise of all powers, authorities and discretions vested in the Assignee and shall, in particular, execute all transfers, conveyances, assignments and assurances of such property (whether to the Assignee or to its nominees) and give all notices orders and directions which the Assignee may think expedient. For the purposes of this Clause, a certificate in writing by the Assignee to the effect that any particular assurance, act or thing required by it, is required, shall be conclusive evidence of such fact.
15. POWER OF ATTORNEY
15.1 Powers: The Assignor hereby by way of security irrevocably appoints the Assignee and every such delegate or sub-delegate as aforesaid to be its attorney and on its behalf and in its name or otherwise, and with full power of substitution to execute and do all such assurances, acts and things which the Assignor ought to do under the covenants and provisions contained in this Assignment and generally, in its name or otherwise and on its behalf, to exercise all or any of the OCBC Legal / Jun 2009 10 powers, authorities and discretions conferred by or pursuant to this Assignment on the Assignee or such other delegate or sub-delegate and (without prejudice to the generality of the foregoing) to seal, deliver and otherwise perfect any deed, assurance, agreement, instrument or act which it may deem proper in or for the purpose of exercising any of such powers, authorities and discretions.
15.2 Ratification: The Assignor hereby ratifies and confirms and agrees to ratify and confirm whatever any such attorney as is mentioned in Clause 15.1 above shall do or purport to do in the exercise or purported exercise of all or any of the powers, authorities and discretions referred to in such Clause 15.1 above.
16. AVOIDANCE OF PAYMENTS
No assurance, security or payment which may be avoided under any law relating to bankruptcy, insolvency or winding up and no release, settlement or discharge given or made by the Assignee on the faith of any such assurance, security or payment, shall prejudice or affect the right of the Assignee to enforce the security created by this Assignment in respect of the full extent of the obligations and moneys hereby secured. Any such release, settlement or discharge shall be deemed to be made subject to the condition that it will be void if any payment or security which the Assignee may previously have received or may thereafter receive from any person in respect of the Secured Debt is set aside under any applicable law or proves to have been for any reason invalid.
17. BENEFIT OF SECURITY/DISCLOSURE OF INFORMATION
17.1 This Assignment shall be binding upon and enure to the benefit of each party hereto and their successors and assigns. The Assignor may not assign or transfer all or any part of its rights, benefits and obligations hereunder.
17.2 Disclosure of Information: The Assignor hereby irrevocably and unconditionally consents for the Assignee and any officer (as defined in the Banking Act, Chapter 19 of Singapore (the "Banking Act")) of the Assignee to disclose any customer information (as defined in the Banking Act) relating to the Assignor or any information whatsoever as the Assignee shall consider appropriate to any person to whom disclosure is permitted or required by any statutory provision or law or to any other person wherever situate for any purpose whatsoever, including but not limited to:-
17.2.1 any person who may enter into a contractual relationship with the Assignee;
17.2.2 any of the Assignee’s subsidiaries, branches, agents, correspondents, agencies or representative offices;
17.2.3 any of the Assignee’s potential assignees, transferees or successors;
17.2.4 any person who has given any security to the Assignee for any facilities granted to the Assignor;
17.2.5 any person who is jointly or jointly and severally liable to the Assignee together with the Assignor;
17.2.6 any receiver or receiver and manager appointed by the Assignee pursuant to its rights as chargee;
17.2.7 any credit bureau (or other organisation or corporation set up for the purpose of collecting and providing information relating to the credit standing of persons) of which the Assignee is a member and to the disclosure by such credit bureau or other organisation to any other member(s) thereof for the purposes of assessing the Assignor’s credit worthiness or for any other purpose whatsoever; or
OCBC Legal / Jun 2009 11 17.2.8 any governmental agencies and authorities in Singapore,
and it is hereby agreed that the Assignee and any officer of the Assignee may disclose the foregoing information to the fullest extent permitted by the Banking Act or any other statutory provision or law. The rights conferred on the Assignee herein shall be in addition to and shall not be in any way prejudiced or affected by any other agreement, expressed or implied, between the Assignor and the Assignee in relation to any information referred to herein nor shall any such other agreement be in any way prejudiced or affected by any provision herein. This consent and provision shall survive the termination of any or all of the Assignor's accounts or facilities with the Assignee and/or the termination of any relationship between the Assignor and the Assignee for any reason whatsoever.
This Clause 17.2 is not, and shall not be deemed to constitute, an express or implied agreement by the Assignee with the Assignor for a higher degree of confidentiality than that prescribed in Section 47 of the Banking Act and in the Third Schedule to the Banking Act.
18. REMEDIES, WAIVERS AND CONSENTS
18.1 No failure on the part of the Assignee to exercise, and no delay in exercising, any right or remedy under this Assignment will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy under this Assignment preclude any other or further exercise of any other right or remedy. The rights and remedies in this Assignment provided are cumulative and not exclusive of any rights or remedies provided by law.
18.2 Any waiver or consent given by the Assignee under this Assignment shall be in writing and may be given subject to such conditions as the Assignee may impose. Any waiver or consent shall be effective only in the instance and for the purpose for which it is given.
19. COMMUNICATIONS
19.1 Each demand, notice or other communication under this Assignment shall be made by fax, electronic mail or otherwise in writing. Each communication or document to be delivered to either party under this Assignment shall be sent to it at the fax number or address, and marked for the attention of the person (if any), from time to time designated by that party to the other party for the purpose of this Assignment.
19.2 Any communication from the Assignor shall be irrevocable, and shall not be effective until received by the Assignee. Any communication from one party to the other party shall be deemed to have been received by such other party (if sent by fax) on the day of despatch or (in any other case) when left at the address required by Clause 19.1 above or at 10.00 a.m. on the next Business Day following the day of despatch after being sent by prepaid registered post addressed to that address.
20. PARTIAL INVALIDITY The illegality, invalidity or unenforceability of any provision of this Assignment under the laws of any jurisdiction shall not effect its legality, validity or enforceability under the laws of any other jurisdiction nor the legality, validity or enforceability of any other provision.
21. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT A person who is not a party to this Assignment shall have no rights under the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore, to enforce any of its terms (unless expressly provided otherwise in this Assignment).
OCBC Legal / Jun 2009 12 22. GOVERNING LAW AND JURISDICTION
22.1 Governing Law: This Assignment shall be governed by, and construed in accordance with, the laws of Singapore.
22.2 Singapore and Other Courts: In relation to any legal action or proceedings arising out of or in connection with this Assignment (“Proceedings”), the Assignor hereby agrees that such Proceedings may be brought in the courts of Singapore and the courts of any state wherein the Vessel may for the time being be found, and hereby irrevocably submits to the jurisdiction of such courts and waives any objection to Proceedings in any such court on the grounds that the Proceedings have been brought in an inconvenient forum.
22.3 Other Competent Jurisdiction: Those submissions shall not affect the right of the Assignee to take Proceedings in any other jurisdiction nor shall the taking of Proceedings in any one or more jurisdiction preclude the Assignee from taking Proceedings in any other jurisdiction, whether concurrently or not.
22.4 Consent to Enforcement, etc.: The Assignor irrevocably and generally consents in respect of any Proceeding anywhere in relation to the giving of any relief or the issue of any process in connection with those Proceedings including, without limitation, the making, enforcement or execution against any assets whatsoever (irrespective of their use or intended use) of any order or judgment which may be made or given in those Proceedings, and agrees that any final order or judgment shall be conclusive.
22.5 Waiver of Immunity: The Assignor irrevocably agrees that, should the Assignee take any Proceeding anywhere (whether for an injunction, specific performance, damages or otherwise), no immunity (to the extent that it may at any time exist, whether on the grounds of sovereignty or otherwise) from those Proceedings, from attachment (whether in aid of execution, before judgment or otherwise) of its assets or from execution or judgment shall be claimed by it or on its behalf or with respect to its assets, any such immunity being irrevocably waived. The Assignor irrevocably agrees that it and its assets are and shall be, subject to such Proceedings, attachment or execution in respect of its obligations under this Assignment.
OCBC Legal / Jun 2009 13 SCHEDULE 1
VESSEL PARTICULARS
1. Name :
2. Official No . :
3. Year and Port of Registry : / Singapore
4. GRT : tons
5. NRT : tons
6. Length : metres
7. Breadth : metres
8. Depth : metres
9. Classification :
OCBC Legal / Jun 2009 14 SCHEDULE 2
NOTICE OF ASSIGNMENT TO CHARTER OR SHIPPER
To: [Charterer or Shipper]
Dear Sirs,
Notice of Assignment of Earnings [ ] (the "Vessel")
We refer to the charterparty (the "Charter")/contract of affreightment (the "Contract of Affreightment") dated [ ] entered into between (1) ourselves and (2) yourselves relating to the Vessel.
We hereby give you notice that by an Assignment (the "Assignment") dated [ ] made between (1) ourselves, as assignor, and (2) Oversea-Chinese Banking Corporation Limited (the "Assignee"), we have assigned absolutely to the Assignee all our rights, title and interest in and to the Charter/Contract of Affreightment, including (without limitation) all moneys of whatsoever kind payable by yourselves to ourselves or for our account arising out of or as a result of the Charter/Contract of Affreightment and all moneys due and to become due to us under, and all claims for damages arising out of any breach of, the Charter/Contract of Affreightment.
Accordingly, we hereby authorise and instruct you to pay to our account with the Assignee at [ (Account no. [ ]) ] or as the Assignee may from time to time otherwise direct), all payments due and to become due to us under the Charter/Contract of Affreightment.
Notwithstanding the foregoing, under the provisions of the Assignment, we are to remain liable to perform all our obligations assumed under the Charter/Contract of Affreightment and the Assignee is under no liability whatsoever in the event of any failure by us to perform our obligations thereunder.
The instructions contained in this Notice of Assignment are irrevocable and cannot be altered without the prior consent in writing of the Assignee.
Please acknowledge your receipt of this Notice of Assignment in the form of acknowledgement attached by dating, signing and delivering the acknowledgement to the Assignee at 65 Chulia Street [#11-00], OCBC Centre, Singapore 049513.
Dated [ ]
Yours faithfully For and on behalf of
By: Name: Title:
OCBC Legal / Jun 2009 15 SCHEDULE 3
FORM OF ACKNOWLEDGEMENT OF NOTICE OF ASSIGNMENT
From: [Charterer or Shipper]
To: Oversea-Chinese Banking Corporation Limited 65 Chulia Street [#11-00] OCBC Centre Singapore 049513
Attention:
Dear Sirs,
Acknowledgment of Notice of Assignment [ ] (the "Vessel")
We, [Charterer under the Charterparty/the Shipper under the Contract of Affreightment] dated [ ] and relating to the motor vessel "[ ]" referred to in the foregoing Notice of Assignment:
(i) acknowledge receipt and agree to the terms of the said Notice of Assignment;
(ii) agree that we will make payment of all moneys due and to become due under or pursuant to the said Charterparty/Contract of Affreightment directly to the account specified in the said Notice of Assignment until Oversea-Chinese Banking Corporation Limited shall notify us in writing to the contrary.
Dated [ ]
Yours faithfully, For and on behalf of [Charterer/Shipper]
By: Name: Title:
OCBC Legal / Jun 2009 16 IN WITNESS WHEREOF the Assignor has executed this Assignment in favour of the Assignee.
The Assignor
THE COMMON SEAL of ) ) was hereunto affixed in the ) presence of:- )
______DIRECTOR
______DIRECTOR/SECRETARY
I, , an Advocate and Solicitor of the Supreme Court of the Republic of Singapore practising in Singapore hereby certify that on the day of the Common Seal of was duly affixed to the above written instrument at Singapore in my presence in accordance with the regulations of the said Company (which regulations have been produced and shown to me).
Witness my hand.
OCBC Legal / Jun 2009 17