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10.9.5
DATED July 1994
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(1) HORIZON EXPLORATION LIMITED
(2) SIMON-HORIZON LIMITED
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D E E D O F A S S I G N M E N T
of
Insurances
Relating to Goods used in connection with the
M.V. "SIMON LABRADOR"
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XXXXXXX & XXXXXXX
00 Xxxxxxxx Xxxxxx
Xxxxxx XXXX 0XX
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T H I S D E E D O F A S S I G N M E N T is made the 15th day of July,
1994
BETWEEN:
(1) HORIZON EXPLORATION LIMITED, a company incorporated in England and
Wales with registration number 2804983 (the "Assignor"); and
(2) SIMON-HORIZON LIMITED, a company incorporated in England and Wales
with registration number 467924 (the "Assignee")
WHEREAS:
(A) The Assignor has by a charterparty (the "Charter") by way of
sub-demise dated the date hereof agreed to sub-charter the x.x. Xxxxx
Labrador (the "Vessel") from the Assignee and by a Master Lease
Agreement and two Lease Contracts (together, the "Leases") all of even
date herewith has further agreed to sub-lease certain equipment from
the Assignee to be used in connection with the Vessel.
(B) It is a condition precedent to the obligations of the Assignee to
deliver to the Assignor the Vessel and the Goods pursuant to the terms
of the Charter and the Leases respectively that (inter alia) the
Assignor execute this Assignment and thereby secure all of its
obligations to the Assignee under or pursuant to the Charter and the
Leases
NOW THIS ASSIGNMENT WITNESSES:
1. Interpretation
(A) Terms used herein and in the recitals hereto and not otherwise defined
shall have the meanings given to them in the Charter and/or the
Leases.
(B) In this Assignment:
(a) "Approved Brokers" means such insurance brokers as the
assignee may have approved in writing;
(b) "Insurers" means the underwriters or insurance companies with
whom any of the Insurances are effected and (to the extent, if
any, applicable) the managers of any protection and indemnity
or war risks association in which the Vessel may at any time
be entered if cover in respect of the Goods is provided
thereby;
(c) "Insurances" means all policies and contracts of insurance and
(to the extent, if any, applicable) all entries in a
protection and indemnity or war risks
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association which are now or may hereafter be taken out or
effected in respect of the Goods, earnings or profits
therefrom or otherwise howsoever and all the benefits thereof,
including all claims whatsoever and returns of premiums;
(d) any reference to a total loss shall be read to include a
reference to an actual total or constructive total or an
agreed, arranged or compromised total loss.
2. Representations
The Assignor represents that:
(A) it has power to enter into and perform this Assignment and has taken
all necessary corporate or other action required to authorise the
execution and delivery of this Assignment and its performance
according to its terms;
(B) it is not necessary to ensure the legality, validity, enforceability
or admissibility in evidence of this Assignment (i) that it be filed,
except for registration with the registrar of Companies in England and
Xxxxx, in the United Kingdom or in any country where the Assignor
carries on business or (ii) that it be stamped with any stamp or
similar transaction tax in any such country;
(C) all consents, licenses, approvals or authorisations of or declarations
to or registrations with governmental authorities or agencies or
courts required to make this Assignment legal, valid, enforceable or
admissible in evidence and to enable it lawfully to enter into and
perform its obligations hereunder have been obtained or made and are
in full force and effect;
(D) the execution and delivery of this Assignment and its performance
according to its terms will not violate (i) the Memorandum and
Articles of Association of the Assignor, (ii) any applicable law or
regulation or order or decree of any governmental authority or agency,
or (iii) any mortgage, deed or agreement which is binding upon the
Assignor or any of its assets; and
(E) it has not heretofore assigned, charged or pledged all or any part of
the Insurances.
3. Title to Insurances
The Assignor:
(A) as beneficial owner assigns all its right, title and interest in and
to the Insurances to the Assignee provided that on discharge by the
Assignor of all of its obligations under the
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Charter and Leases, provided the Assignor is under no further actual
or contingent liability under the Agreement or any other of the HEL
Documents (as such phrase is defined in and for the purposes of the
Agreement), the Assignee will at the request and cost of the Assignor
without recourse or warranty as to the subject-matter of such
assignment re-assign the Insurances to the Assignor or whomsoever may
be entitled thereto;
(B) shall forthwith on the execution hereof give notice of the aforesaid
assignment to the Insurers (or will procure that the Approved Brokers
do so) substantially in the following form:
NOTICE OF ASSIGNMENT
SIMON-HORIZON LIMITED (the "Assignee") and HORIZON EXPLORATION LIMITED (the
"Assignor") HEREBY GIVE NOTICE that by a first assignment dated 15th July 1994
the Assignor assigned to the Assignee all of its right, title and interest in
and to the benefit of all insurances now or hereafter taken out in respect of
the [Goods] the subject of the insurances [constituted by the policy]
[evidenced by the certificate of entry] whereon this notice is endorsed.
Dated [ ] [July] 1994
For and on behalf of For and on behalf of
The Assignor The Assignee
(C) shall forthwith upon the coming into effect of any of the Insurances
after the date hereof, give (or procure that the Approved Brokers, if
any, give) to the Insurers notice of the aforesaid assignment in the
form specified in sub-clause (B) of this Clause;
(D) shall execute all such documents and do all such things as may be
necessary to create in the Assignee a legal title to each of the
Insurances and will, in particular but without limitation, (i) notify
the Approved Brokers and the Insurers of the interest of the Assignee
in each of the Insurances, and (ii) secure that each of the Insurances
contains a Loss Payable and Notice of Cancellation Clause
substantially in the following form (or otherwise as may reasonably be
agreed between the Owner, the Assignee and the Assignor):
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"LOSS PAYABLE AND NOTICE OF
CANCELLATION CLAUSE
By an assignment dated [ ] July, 1994 the Assignor has assigned to
Simon-Horizon Limited (the "Assignee") this policy and all benefits thereof
including all claims of whatsoever nature thereunder.
(A) Until the Assignee notifies the underwriters to the contrary:
- all claims hereunder whatsoever shall be paid to the Assignee
without any deduction or deductions whatsoever unless the
Assignee has given prior written instructions to the contrary.
(B) The Assignee shall be advised:
(1) immediately of any material changes which are proposed to be
made in the terms of the insurances or if the underwriters
cease to be underwriters for any purposes connected with the
insurances;
(2) not later than fourteen days prior to the expiry of any of the
insurances if instructions have not been received for the
renewal or further renewal thereof and, in the event of
instructions being received to renew or further to renew, of
the details thereof;
(3) immediately of any instructions or notices received by
underwriters with regard to the cancellation or invalidity of
any of the insurances aforesaid."
(E) shall cause the Insurers (or, in the case of any of the Insurances
which are effected through Approved Brokers, the Approved Brokers) and
(to the extent, if any, applicable) the managers of any relevant
protection and indemnity or war risks association (i) to hold to the
order of the Assignee the originals of all policies, contracts,
binders, insurance slips, cover notes and, where applicable,
certificates of entry relating to the Goods and the benefits thereof
and to deliver certified copies thereof to the Assignee on request,
and (ii) to agree to advise the Assignee promptly:
(a) if any underwriter, insurance company or protection
and indemnity or war risks association cancels any of
the Insurances;
(b) of any alteration to any of the Insurances or any
default in the payment of any premium, call or
contribution or any failure to renew any of the
Insurances at least fourteen days before its expiry;
and
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(c) of any other act, omission or event of which they
have knowledge which would or might render invalid or
unenforceable any of the Insurances in whole or in
part;
(F) shall not hereafter assign, charge or pledge its right, title and
interest in and to the Insurances in whole or in part without the
Assignee's prior written consent;
(G) shall not without the prior written consent of the Assignee settle,
compromise or abandon any claim under any of the Insurances.
4. Application of Insurance Moneys
All monies payable under, pursuant to or in respect of the insurances shall be
applied as provided pursuant to Clause 11 of the Master Lease.
5. Law
This Assignment shall be governed by and construed in accordance with the laws
of England.
IN WITNESS whereof the Assignor has caused this Deed to be executed as its Deed
the day and year first before written.
SIGNED by )
and by ) /s/ Xxxx A.M. Xxxxxxxx
and thereby executed by ) /s/ X.X. Xxxxxxxx
HORIZON EXPLORATION LIMITED )
as its Deed )
SIGNED by )
for and on behalf of ) /s/ [illegible signature]
SIMON-HORIZON LIMITED )
in the presence of: )
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