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DEED OF ASSIGNMENT

Assignment Agreement

DEED OF ASSIGNMENT | Document Parties: USG CORP | DVB BANK | GYPSUM TRANSPORTATION LIMITED You are currently viewing:
This Assignment Agreement involves

USG CORP | DVB BANK | GYPSUM TRANSPORTATION LIMITED

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Title: DEED OF ASSIGNMENT
Date: 10/27/2008
Industry: Construction - Raw Materials     Sector: Capital Goods

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Exhibit 10.4

EXECUTION VERSION

DATED                      2008

GYPSUM TRANSPORTATION LIMITED

- to -

DVB BANK SE

 

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

 

 


 

CONTENTS

 

 

 

 

 

 

 

Page

 

 

 

 

 

 

1 Definitions and Interpretation

 

 

2

 

 

 

 

 

 

2 Covenant to Pay and Perform

 

 

4

 

 

 

 

 

 

3 Assignment

 

 

4

 

 

 

 

 

 

4 Ancillary Provisions

 

 

6

 

 

 

 

 

 

5 Application of Moneys

 

 

6

 

 

 

 

 

 

6 Power of Attorney

 

 

7

 

 

 

 

 

 

7 Partial Invalidity

 

 

7

 

 

 

 

 

 

8 Further Assurance

 

 

7

 

 

 

 

 

 

9 Miscellaneous

 

 

7

 

 

 

 

 

 

10 Re-Assignment

 

 

8

 

 

 

 

 

 

11 Notices

 

 

8

 

 

 

 

 

 

12 Counterparts

 

 

8

 

 

 

 

 

 

13 Law and Jurisdiction

 

 

8

 

 

 

 

 

 

APPENDIX A

 

 

11

 

 

 

 

 

 

APPENDIX B

 

 

12

 

 

 

 

 

 

APPENDIX C

 

 

13

 

 

 

 

 

 

APPENDIX D

 

 

14

 

 

 

 

 

 

Acknowledgement

 

 

16

 

 

 

 

 

 

 

 


 

DEED OF ASSIGNMENT

Dated:                      2008

BY:

(1)

 

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 ”)

IN FAVOUR OF:

(2)

 

DVB BANK SE with its registered office in Frankfurt and acting through its office at Parklaan 2, 3016BB Rotterdam, The Netherlands (the “ Assignee ”).

WHEREAS:

(A)

 

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 ”).

(B)

 

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.

 

(C)

 

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.

 

 


 

 

THIS DEED WITNESSES as follows:

1

 

Definitions and Interpretation

 

1.1

 

In this Deed:

 

 

 

 

 

 

 

Assigned Property ” means the Insurances, the Earnings and the Requisition Compensation and the CoA Rights.

 

 

 

 

 

 

 

CoAs ” means each of:-

 

 

(a)

 

the contract of affreightment commencing as of January 1, 2008 made between the Borrower and United States Gypsum Company;

 

(b)

 

the contract of affreightment dated 30 October 2007 made between the Borrower and Public Service of New Hampshire Company;

 

 

(c)

 

the contract of affreightment dated 18 April 2008 made between the Borrower and Mt. Tom Generating Co. LLC; and

 

(d)

 

any future contracts of affreightment to be entered into by the Borrower in respect of the Vessel

(each a “ COA ”) .

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.

 

1.2

 

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.

 

 

 

 

 

1.3

 

In this Deed:

 

1.3.1

 

words denoting the plural number include the singular and vice versa;

 

 

 

 

 

1.3.2

 

words denoting persons include corporations, partnerships, associations of persons (whether incorporated or not) or governmental or quasi-governmental bodies or authorities and vice versa;

 

 

 

 

 

1.3.3

 

references to Clauses are references to clauses of this Deed;

 

 

 

 

 

1.3.4

 

references to this Deed include the recitals to this Deed;

 

3


 

 

 

1.3.5

 

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;

 

 

1.3.6

 

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;

 

1.3.7

 

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

 

 

1.3.8

 

references to any Finance Party include its successors, transferees and assignees.

2

 

Covenant to Pay and Perform

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.

3

 

Assignment

 

3.1

 

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.

 

 

3.2

 

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.

 

4


 

 

 

3.3

 

The Owner undertakes:

 

 

3.3.1

 

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

 

3.3.2

 

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

 

 

3.3.3

 

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

 

3.3.4

 

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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