GYPSUM TRANSPORTATION
LIMITED
DEED OF ASSIGNMENT
m.v. “GYPSUM CENTENNIAL”
STEPHENSON HARWOOD
One, St. Paul’s Churchyard
London EC4M 8SH
Tel: 020 7329 4422
Fax: 020 7329 7100
Ref: 819/1575/47-00986
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Page
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1 Definitions and Interpretation
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2
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2 Covenant to Pay and Perform
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4
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4
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6
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6
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7
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7
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7
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7
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8
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8
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8
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8
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11
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12
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13
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14
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16
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(1)
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GYPSUM TRANSPORTATION
LIMITED , a
company incorporated according to the law of Bermuda whose
registered office is at Clarendon House, 2 Church Street, Hamilton
HM11, Bermuda (the “ Owner ”)
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(2)
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DVB BANK SE with its registered office in
Frankfurt and acting through its office at Parklaan 2, 3016BB
Rotterdam, The Netherlands (the “ Assignee
”).
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(A)
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Each of the banks listed in
Schedule 1 to the Loan Agreement (as defined below)
(collectively the “ Banks ”) has agreed to
advance to the Owner its respective Commitment of an aggregate
amount not exceeding the total of (i) the lesser of forty
million Dollars ($40,000,000) and fifty per centum (50%) of the
Market Value of Vessel A (in respect of Tranche A) and
(ii) the lesser of fifty million Dollars ($50,000,000) and
fifty per centum (50%) of the Market Value of Vessel B (in respect
of Tranche B) (the “ Loan ”) on the terms and
subject to the conditions set out in a loan agreement dated 2008
made between the Owner (as borrower), the Banks (as lenders), and
the Assignee as agent and security trustee for the Banks (the
“ Loan Agreement ”).
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(B)
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Pursuant to the Loan Agreement, and
as a condition precedent to the several obligations of the Banks to
make the Loan available to the Owner, the Owner has, amongst other
things, agreed to execute and deliver in favour of the Assignee as
security trustee for the Finance Parties a first priority statutory
mortgage of the Owner’s Bermuda flag vessel m.v.
“GYPSUM CENTENNIAL” (the “ Vessel ”
and together with the m.v. “GYPSUM INTEGRITY” the
“ Vessels ”) together with a collateral deed of
covenants (together the “ Mortgage ”) and this
Deed as security for the payment of the Indebtedness.
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(C)
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The Owner is the legal and
beneficial owner of the Vessel and the Assigned Property and has
executed the Mortgage on the same date as this Deed.
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THIS DEED
WITNESSES as
follows:
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1
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Definitions and
Interpretation
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1.1
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In this Deed:
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“ Assigned Property
” means the Insurances, the Earnings and the Requisition
Compensation and the CoA Rights.
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“ CoAs ” means
each of:-
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(a)
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the contract of affreightment
commencing as of January 1, 2008 made between the Borrower and
United States Gypsum Company;
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(b)
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the contract of affreightment dated
30 October 2007 made between the Borrower and Public Service of New
Hampshire Company;
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(c)
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the contract of affreightment dated
18 April 2008 made between the Borrower and Mt. Tom Generating Co.
LLC; and
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(d)
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any future contracts of
affreightment to be entered into by the Borrower in respect of the
Vessel
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“ CoA
Rights ” means all of the rights of the Borrower under or
pursuant to the CoAs.
“
Earnings ” means all hires, freights, pool income and
other sums payable to or for the account of the Owner in respect of
the Vessel including (without limitation) all payments under the
CoAs remuneration for salvage and towage services, demurrage and
detention moneys, contributions in general average, compensation in
respect of any requisition for hire, and damages and other payments
(whether awarded by any court or arbitral tribunal or by agreement
or otherwise) for breach, termination or variation of any contract
for the operation, employment or use of the Vessel.
“
Finance Parties ” means the Assignee and the Banks and
“ Finance Party ” means any one of
them.
“
Indebtedness ” means the Loan; all other sums of any
nature (together with all interest on any of those sums) which from
time to time may be payable by the Owner to the Banks or to the
Assignee pursuant to the Security Documents; any damages payable as
a result of any breach by the Owner of any of the Security
Documents; and any damages or other sums payable as a result of any
of the obligations of the Owner under or pursuant to any of the
Security Documents being disclaimed by a liquidator or any other
person, or, where the context permits, the amount thereof for the
time being outstanding.
2
“
Insurances ” means all policies and contracts of
insurance (including all entries in protection and indemnity or war
risks associations) which are from time to time taken out or
entered into in respect of or in connection with the Vessel or her
increased value or the Earnings and (where the context permits) all
benefits under such contracts and policies, including all claims of
any nature and returns of premium.
“
Requisition Compensation ” means all compensation or
other money which may from time to time be payable to the Owner as
a result of the Vessel being requisitioned for title or in any
other way compulsorily acquired (other than by way of requisition
for hire).
“
Security Documents ” means the Loan Agreement, the
Mortgages, the Assignments, the Guarantee, the Account Security
Deed, the Managers’ Undertakings or (where the context
permits) any one or more of them, and any other agreement or
document which may at any time be executed by any person as
security for the payment of all or any part of the
Indebtedness.
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1.2
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Unless otherwise specified in this
Deed, or unless the context otherwise requires, all words and
expressions defined in the Loan Agreement shall have the same
meaning when used in this Deed.
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1.3
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In this Deed:
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1.3.1
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words denoting the plural number
include the singular and vice versa;
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1.3.2
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words denoting persons include
corporations, partnerships, associations of persons (whether
incorporated or not) or governmental or quasi-governmental bodies
or authorities and vice versa;
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1.3.3
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references to Clauses are
references to clauses of this Deed;
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1.3.4
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references to this Deed include the
recitals to this Deed;
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3
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1.3.5
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the headings and contents page(s)
are for the purpose of reference only, have no legal or other
significance, and shall be ignored in the interpretation of this
Deed;
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1.3.6
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references to any document
(including, without limitation, to any of the Security Documents)
are, unless the context otherwise requires, references to that
document as amended, supplemented, novated or replaced from time to
time;
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1.3.7
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references to statutes or
provisions of statutes are references to those statutes, or those
provisions, as from time to time amended, replaced or re-enacted;
and
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1.3.8
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references to any Finance Party
include its successors, transferees and assignees.
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2
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Covenant to Pay and
Perform
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The Owner
agrees to pay to the Finance Parties all moneys comprised in the
Indebtedness and to perform all its other obligations arising out
of the Security Documents as and when the same shall be due for
payment or performance.
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3.1
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In order to secure the payment of
the Indebtedness and the performance by the Owner of all its other
obligations under or arising out of the Security Documents the
Owner with full title guarantee assigns and agrees to assign
absolutely and unconditionally to the Assignee as security trustee
for the Finance Parties all the Owner’s right, title and
interest, present and future, in and to the Assigned
Property.
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3.2
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The Owner warrants that it has not
disposed of, nor created or permitted any Encumbrance or other
third party right to arise on or over, any of the Assigned Property
other than Permitted Encumbrances.
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4
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3.3
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The Owner undertakes:
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3.3.1
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immediately following the execution
of this Deed and at any other time reasonably required by the
Assignee during the Facility Period, to give written notice
(materially in the form set out in Appendix A or in such other
form as the Assignee may require) to the underwriters (or, in the
case of entries in protection and indemnity or war risks
associations or clubs, to the managers of those associations or
clubs) of the assignment of the Insurances contained in this Deed;
and
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3.3.2
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immediately following the execution
of this Deed and at any other time required by the Assignee during
the Facility Period, to give to the Assignee a written authority
(materially in the form set out in Appendix B or in such other
form as the Assignee may require) addressed to the managers of each
protection and indemnity or war risks association or club in which
the Vessel is entered irrevocably authorising those managers to
give to the Assignee or its agents such information and documents
relating to the entry of the Vessel in the association or club as
the Assignee may from time to time reasonably require;
and
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3.3.3
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to procure that a loss payable
clause materially in the form set out in Appendix C (or in
such other form as the Assignee may approve) or, in the case of
entries in a protection and indemnity association, a note of the
Assignee’s interest in such form as the Assignee may approve,
shall be endorsed on or attached to the policies, cover notes or
certificates of entry relating to the Insurances and that letters
of undertaking in such form as the Assignee may approve shall be
issued to the Assignee by the brokers through whom the Insurances
are placed (or, in the case of entries in protection and indemnity
or war risks associations, by their managers); and
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3.3.4
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immediately following the execution
of this Deed in respect of the existing COAs and immediately
following the execution of any future COAs to give written notice
(materially in the form of Appendix D or in such other form as
the Assignee may require) to the counterparties to each CoA of the
a
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