A Memorandum of Charge is a crucial security document used in Swiss financing transactions to create and perfect security interests over various types of assets. It is commonly used in both corporate and real estate financing, documenting the security granted by a chargor (security provider) in favor of a chargee (security taker) to secure specified obligations. The document must comply with Swiss law requirements, particularly the Swiss Civil Code (ZGB/CC) and Swiss Code of Obligations (OR/CO), and may require registration with relevant authorities such as the land registry or commercial registry depending on the nature of the charged assets. The memorandum typically includes detailed descriptions of the charged assets, secured obligations, enforcement mechanisms, and various representations and warranties to ensure the security's validity and enforceability.
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1. Parties: Identification of the Chargor (security provider) and Chargee (security taker), including full legal names and addresses
2. Background: Context of the charge creation, reference to underlying obligations and any related agreements
3. Definitions: Definitions of key terms used throughout the document, including 'Charged Assets', 'Secured Obligations', and 'Security Period'
4. Creation of Charge: Express declaration of the charge and its nature (fixed or floating)
5. Secured Obligations: Detailed description of the obligations secured by the charge
6. Charged Assets: Description and scope of the assets subject to the charge
7. Perfection and Further Assurance: Requirements for registration, filing, and additional actions to perfect the security
8. Representations and Warranties: Chargor's confirmations regarding ownership, capacity, and authority
9. Covenants: Chargor's ongoing obligations regarding the Charged Assets
10. Enforcement: Rights and remedies of the Chargee upon default
11. Power of Attorney: Appointment of Chargee as Chargor's attorney for security purposes
12. Notices: Communication procedures between parties
13. Governing Law and Jurisdiction: Confirmation of Swiss law application and jurisdiction
1. Security Agent Provisions: Required when security is held by an agent on behalf of multiple secured parties
2. Currency Provisions: Needed when secured obligations or charged assets involve multiple currencies
3. Parallel Debt: Used in international transactions to strengthen enforceability of security
4. Bank Accounts: Specific provisions for charges over bank accounts
5. Intellectual Property: Special provisions for charges over IP rights
6. Insurance Policies: Required when insurance policies form part of the charged assets
7. Release Provisions: Detailed procedures for releasing the charge upon satisfaction of secured obligations
1. Schedule 1 - Charged Assets: Detailed description and inventory of all assets subject to the charge
2. Schedule 2 - Secured Obligations: Comprehensive list of agreements and obligations secured by the charge
3. Schedule 3 - Form of Notice: Template notices for perfection requirements (e.g., notice to account bank)
4. Schedule 4 - Properties: Details of any real estate included in the charged assets
5. Schedule 5 - Intellectual Property: List of specific IP rights subject to the charge
6. Appendix A - Filing Forms: Required forms for registration with relevant Swiss authorities
7. Appendix B - Corporate Authorizations: Copies of corporate approvals and resolutions
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