Exhibit 4.4
MIDLAND ENTERPRISES INC.
TO
THE CHASE MANHATTAN BANK,
As Trustee
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Assignment
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Dated as of __, 1998
ASSIGNMENT
FOR VALUE RECEIVED, Midland Enterprises Inc., a Delaware corporation (the
"Company"), as and for additional collateral security for the due and punctual
payment of the principal of and interest and premium, if any, on the ___% First
Preferred Ship Mortgage Bonds of the Company, due September 25, 2018 (the
"Bonds") and the due performance and observance by the Company of all the
covenants and agreements contained in the Bonds and in the Indenture of First
Preferred Ship Mortgage dated as of __________, 1998 (the "Indenture") by the
Company to The Chase Manhattan Bank, as Trustee (the "Trustee"), hereby grants,
assigns, transfers and sets over unto The Chase Manhattan Bank, as such Trustee,
all the right, title and interest of the Company in and to (i) all moneys and
claims for moneys due and to become due under the Charter (as hereinafter
defined) to the extent of the amounts hereinafter set forth in paragraph 1
hereof, and (ii) all claims for damages arising out of the breach of, and all
rights to terminate, the Charter. That certain Charter Agreement dated as of
_________, 1998 to be made by the Company, as owner, to Orgulf Transport Co. as
charterer (the "Charterer"), covering the vessels chartered and to be chartered
thereunder, and any and all amendments, addenda and supplements thereto, is
herein called the "Charter".
1. On each date for the payment of charter hire under the Charter, the
Charterer shall pay over therefrom directly to the Trustee an amount which shall
equal any installments of interest and Sinking Fund payments (as defined in the
Indenture) on the Bonds which may then be overdue, all interest which will
become due on the Bonds on the next succeeding interest payment date, the
Sinking Fund payment, if any, which shall become due with respect to the Bonds
on such next succeeding interest payment date, and any and all obligations of
the Company under the Bonds or the Indenture which may then be due and unpaid
(all moneys so to be paid over to the Trustee being hereinafter called "Assigned
Moneys").
2. Assigned Moneys received by the Trustee hereunder shall be applied by
the Trustee to the payment of interest on the Bonds, to sinking fund payments
required to be made on Sinking Fund payment dates and to the discharge of any
other obligations of the Company under the Bonds or the Indenture which may from
time to time be unpaid, all as the same shall become due and payable (whether at
the stated maturity, by acceleration, or otherwise) in accordance with the terms
and provisions thereof.
3. The Company hereby constitutes and appoints the Trustee its true and
lawful attorney-in-fact, with full and irrevocable power and authority, in the
place and stead of the Company and in the name of the Company or in the name of
the Trustee or otherwise, from time to time, in the discretion of the Trustee,
for the purpose of carrying out the terms hereof, to take any and all action and
to execute any and all instruments which may be necessary to accomplish the
purpose hereof, and, without limiting the generality of the foregoing, the
Company hereby gives the Trustee the power and right, on behalf of the Company,
without notice to or assent by the Company, to ask, demand, collect, receive and
give acquittances and
receipts for the Assigned Moneys or any other moneys arising out of claims or
other rights assigned hereby, to take possession of and endorse and collect any
checks, drafts, notes, trade acceptances or other instruments for the payment of
money received on account of the Assigned Moneys or any other moneys arising out
of claims or other rights assigned hereby, and to file any claim, to take any
other action or proceeding in any court of law or equity or otherwise deemed
appropriate by the Trustee for the purpose of collecting the Assigned Moneys or
any other moneys arising out of claims or other rights assigned hereby wherever
payable under any of the provisions of the Charter and to direct any party to
the Charter or any other party liable for payment thereof to make payment
directly to the Trustee of the Assigned Moneys or any other moneys arising out
of claims or other rights assigned hereby at any time payable pursuant to the
provisions of the Charter. The Trustee may, at any time, without any notice to
or assent of the Company, renew and/or extend the time of payment of, modify,
compound, compromise, settle or adjust, the Assigned Moneys or any claims or
other rights assigned hereby or other moneys arising out of said claims or
rights, without in any way releasing or impairing this Assignment or the rights
of the Trustee hereunder.
4. The Company hereby covenants and agrees:
(a) Duly to perform and observe all of the terms and provisions of the
Charter on the part of the Company to be performed and observed;
(b) At its own expense, but, during the continuance of an Event of
Default (as defined in the Indenture) subject to the direction and control
of the Trustee, to take such action as shall be required or, during the
continuance of an Event of Default, may be requested by the Trustee, for
the collection of Assigned Moneys or any other moneys arising out of
claims or other rights assigned hereby, and forthwith to pay over and
deliver to the Trustee any payment, or instrument representing the
payment, of any Assigned Moneys or any other moneys arising out of claims
or other rights assigned hereby, which shall be issued in respect thereof,
in the identical form in which received, except for endorsement by the
Company, and until so paid over and delivered, to hold the same in trust
for the Trustee and not to commingle the same with any funds of the
Company;
(c) Forthwith upon the execution hereof (i) to make and maintain on
its books of account and ledgers and upon such other of its records as may
contain information regarding Assigned Moneys or any claims or other rights
assigned hereby, appropriate notations imparting notice of the assignment
thereof, and (ii) to make and maintain on all original counterparts of the
Charter and of any amendments, addenda or supplements thereto a notation
reading substantially as follows:
"Certain moneys due and to become due under this Charter Agreement have
been assigned to The Chase Manhattan Bank, as Trustee under an Indenture of
First Preferred Ship Mortgage dated as of ____________, 1998."
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(d) That it will not, without first obtaining the prior written
consent of the Trustee, compound, compromise, settle or adjust any moneys
due or to become due under, or any claims for moneys arising out of, the
Charter or renew or extend the time of payment thereof;
(e) That it will not, without first obtaining the prior written
consent of the Trustee, consent to any modification or amendment of or
extension of the terms of the Charter, terminate the Charter, waive or
release any obligation of the Charterer thereunder or consent or agree to
any act or omission to act on the part of the Charterer which, without
consent or agreement, would constitute a default under the Charter or fail
promptly and diligently to exercise each and every right which it may have
under the Charter; provided, however, that the Company may terminate the
Charter and may consent to any modification or amendment thereof without
the prior written consent of the Trustee if such termination, modification
or amendment is expressly permitted by the Indenture;
(f) That it will reimburse the Trustee, immediately upon demand, for
all court costs, attorneys' fees and other expenses which may be expended
or incurred by the Trustee to obtain payment of the Assigned Moneys or of
any other moneys arising out of claims or other rights assigned hereby;
(g) That it will execute and deliver to the Trustee on demand any
instruments or documents and do any and all acts as may be required or
deemed by the Trustee necessary to carry into effect the provisions of this
Assignment and to facilitate the collection of Assigned Moneys or any other
moneys arising out of claims or other rights assigned hereby; and
(h) That all records with respect to the Charter and Assigned Moneys
are and will be at all times exclusively kept and maintained at the
Company's principal place of business.
5. It is expressly agreed that the Company shall remain liable under the
Charter to observe and perform all the conditions and obligations therein
provided to be observed and performed by it, and the Trustee shall have no
obligation or liability under the Charter by reason of or arising out of this
Assignment, nor shall the Trustee be required or obligated in any manner to
observe or perform any of the conditions or obligations of the Company under or
pursuant to the Charter or to make any payment, or to make any inquiry as to the
nature or sufficiency of any payment received by it, or to present or file any
claim, or to take any other action to collect or enforce the payment of any
amounts which may have been assigned to it or to which it may be entitled
hereunder at any time or times. The Company will promptly deliver to the Trustee
a copy of each demand, notice, communication, or other document (except those
received in the regular course of business) delivered to it in any way relating
to the Charter.
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6. The Company represents and warrants that, but for the provisions of this
Assignment and the Indenture, it has not transferred, assigned, pledged or
encumbered in any manner, in whole or in part, the Charter or the Assigned
Moneys or any claims or other rights assigned hereby and the Company hereby
covenants and agrees with the Trustee that it will not, so long as this
Assignment shall remain in effect, transfer, assign, pledge or encumber in any
manner whatsoever the Assigned Moneys or any claims or other rights assigned
hereby other than to or in favor of the Trustee.
7. The Company shall, and hereby authorizes the Trustee, in its discretion
and without notice to the Company, to, give notice of this Assignment to any and
all parties obligated to pay Assigned Moneys or any other moneys arising out of
claims or other rights assigned hereby and to notify such party or parties to
pay Assigned Moneys or such other moneys directly to the Trustee. Prior to the
occurrence and continuance of an Event of Default, the Trustee shall not be
obligated to take any action pursuant to this Section 7.
8. The Company represents and warrants that, only three counterparts of the
Charter were executed for the parties. On one such counterpart of the Charter
there was endorsed "This is Charterer's original copy" and on the remaining two
counterparts of the Charter there was endorsed "This is one of Owner's two
original copies". The Charterer's counterpart of the Charter and the Company's
counterparts of the Charter are being delivered by the Company to the Trustee
pursuant to this Assignment. The Company further represents and warrants that it
will not execute any other copies of the Charter in addition to the aforesaid
counterparts of the Charter.
9. Upon the payment in full of the principal of, and premium, if any, and
interest on the Bonds, and upon the satisfaction of all obligations of the
Company under the Indenture, this Assignment shall terminate and the Trustee
shall execute and deliver to the Company, at the Company's expense, such
instrument or instruments as the Company may reasonably request to evidence the
termination of the Trustee's rights hereunder.
10. Each reference herein to the Trustee and the Company shall be deemed to
include their respective successors and assigns.
11. No failure or delay on the part of the Trustee in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or privilege hereunder prevent
any other or further exercise thereof, or the exercise of any other right, power
or privilege. The rights and remedies herein expressly specified are cumulative
and not exclusive of any rights or remedies which the Trustee would otherwise
have.
12. The duties and obligations of the Trustee under this Assignment shall
be governed by the standards set out in Article VI of the Indenture.
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13. This Assignment shall be governed by and construed in accordance with
the law of the State of New York.
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IN WITNESS WHEREOF, the Company has caused this Assignment to be duly
executed as of this ___ day of _________, 1998.
MIDLAND ENTERPRISES INC.
By:____________________________
Title:
STATE OF )
COUNTY OF ) ss:
On this __ day of ______, 1998, before me personally appeared ____, to me
personally known, who being by me duly sworn, says that he is the _____ of
Midland Enterprises Inc., that said instrument was signed on behalf of said
corporation by authority of its Board of Directors, and he acknowledged that the
execution of the foregoing instrument was the free act and deed of said
corporation.
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Notary Public
My Commission Expires:___________
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CONSENT AND AGREEMENT
The undersigned as the Charterer under the Charter Agreement dated as of
____________, 1998, referred to in the foregoing Assignment, hereby acknowledges
notice of and consents to the foregoing Assignment and agrees (1) that it will
make payment of all Assigned Moneys and all other moneys arising out of claims
or other rights purported to be assigned thereby, directly to The Chase
Manhattan Bank, as Trustee, at its office at 000 X. 00xx Xxxxxx 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, until receipt of written notice from The Chase Manhattan
Bank, that all its rights under said Assignment have terminated; (2) that any
such payment shall be final and the undersigned will not seek to recover from
The Chase Manhattan Bank, for any reason whatever any moneys paid to it pursuant
to said Assignment; (3) that it has received written notice of the amount due
from Midland Enterprises Inc. to The Chase Manhattan Bank, and of the identity
of the transactions from which the Assigned Moneys arose and will arise; (4)
that it had no right of counterclaim or defense when it received the aforesaid
notice; and (5) that it waives as against The Chase Manhattan Bank, any
counterclaim or defense arising from a breach of any warranty not discovered
until after said notice was received.
Dated: 1998
ORGULF TRANSPORT CO.
By:____________________________
Title:
STATE OF )
COUNTY OF ) ss:
On this __ day of ______, 1998, before me personally appeared ____, to me
personally known, who being by me duly sworn, says that he is the _____ of
Orgulf Transport Co., that said instrument was signed on behalf of said
corporation by authority of its Board of Directors, and he acknowledged that the
execution of the foregoing instrument was the free act and deed of said
corporation.
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Notary Public
My Commission Expires:___________
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