THIS DEED OF ASSIGNMENT is dated the day of June of the year two thousand five (2005) and made BETWEEN:
Exhibit 4.26
THIS DEED OF ASSIGNMENT is dated the day of June of the year two thousand five (2005) and made
BETWEEN:
1. EGNATIA BANK S.A., a company incorporated according to the laws of Greece, whose registered
office is at 0, Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxx, acting for the purposes of this Deed through
its Shipping Branch situated at 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxx (the “Bank”); and
2. ADVENTURE FOUR S.A. a corporation organised and existing in good standing under the laws of
the Republic of The Xxxxxxxx Islands, having its registered office at Trust Company Complex,
Ajeltake Island, Majuro, The Republic of the Xxxxxxxx Islands. (the “Assignor”).
WHEREAS:
A. By a Loan Agreement (the “Loan Agreement”) dated 9th June 2005 and made between (1)
the Bank and (2) the Assignor as borrower (the Borrower) it was agreed amongst other things that
the Bank would make available to the Borrower upon the terms and conditions therein described a
Loan facility of up to United States Dollars seven million (US$ 7,000,000).
B. Pursuant to the Loan Agreement there has been executed by the Assignor in favour of the Bank a
First Priority Panamanian Naval Mortgage (the “Mortgage”) on the m/v “FREE FIGHTER” ex “SOUTH
GLORY” owned by the Borrower, registered under Panama flag with Official No ............... of gross
registered tons 23696 and net registered tons 14790, built in 1982 in Varna, Bulgaria, IMO No
0000000, Inter. Call Sign ................ (the “Vessel”), as security for the payment by the Assignor of
the Indebtedness (as the term is defined in the Loan Agreement).
C. This Deed of Assignment is supplemental to the Loan Agreement and the other Security Documents
and to the security thereby created, and is the Assignment referred to therein and is entered into
pursuant thereto but will
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nonetheless continue in full force and effect notwithstanding any discharge of the Security
Documents.
NOW THIS DEED WITNESSES AND IT IS HEREBY AGREED as follows:
1. DEFINITIONS
1.1.
(a) | Words and expressions defined in the Security Documents (as the term is described in Clause 1 of the Loan Agreement) shall have the same meaning when used in this Deed, irrespective of whether it is so explicitly mentioned herein or not, unless it is otherwise defined herein or the context otherwise requires. | |
(b) | This Deed will be read together with the other Security Documents but in case of any conflict between this Assignment and the Loan Agreement, the provisions of the Loan Agreement shall prevail whereas in the case of conflict between this Assignment and any other Security Documents, the Assignment Agreement will prevail. The rights, powers and remedies of the Bank provided herein and/or in any other Security Documents are cumulative and not exclusive of each other. |
1.2. | In this Deed, unless the context otherwise requires: |
“Assigned Property” means, the Earnings in respect of the Vessel as the term is defined in the Loan
Agreement including all the Insurances provided for in the Loan Agreement;
1.3. | In this Deed, unless the context otherwise requires: | |
(a) | references to Clauses and Recitals are to be construed as references to clauses and recitals to this Deed; | |
(b) | references to (or any specified provision of) this Deed or any other document will be construed as references thereto as in force for the time being; | |
(c) | words importing the plural shall include the singular and vice versa; |
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(d) | references to persons shall include bodies corporate, bodies unincorporated and individuals; |
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(e) | references to assets include property, rights and assets of every description. |
2. CONTINUING REPRESENTATIONS AND WARRANTIES
The Assignor hereby represents and warrants to the Bank that:
(a) | the Assignor is the sole legal and beneficial Owner of the whole of the Assigned Property; | |
(b) | the Assignor has not, save by this Deed or any other Security Documents, sold or transferred or created any security interest other than those permitted by this Deed and the aforementioned Security Documents over any of its rights, the title or interest to or in the Assigned Property; | |
(c) | no agreement or arrangement exists whereby the Assigned Property may be shared with any other person. |
3. PRESERVATION OF SECURITY AND OTHER PROVISIONS
3.1. | It is declared by the Assignor and agreed that: |
(a) | i. | the security created by this Deed will be held by the Bank as a continuing security for the payment of the Indebtedness as well as for the performance and/or the compliance with all the covenants and conditions contained, expressly or impliedly, in the Security Documents and that |
ii. | the security so created will not be satisfied by any intermediate payment or satisfaction of any part of the Indebtedness. |
(b) | the security so created will be in addition to, and will not in any way be affected by (and may be enforced by the Bank without prior recourse to) any security created by any other of the Security Documents, or other security, or right or remedy whatsoever now or hereafter held by the Bank, or enforcement and will not in any way be prejudiced thereby or by the invalidity or unenforceability thereof or any other of the Security Documents, or by the Bank releasing, modifying or refraining from |
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perfecting or enforcing any of the same, or granting time or indulgence or compounding with any person liable; | ||
(c) | the Assignor will remain liable to perform all the obligations assumed by the Assignor in relation to the Assigned Property and the Bank will be under no obligation of any kind whatsoever in respect thereof; | |
(d) | any waiver by the Bank of any terms of this Deed or any consent given by the Bank under this Deed will only be effective if given in writing and then only for the purpose and upon the terms for which it is given; | |
(e) | all governmental or other consents as well as all levies and/or taxes required by law and/or any other steps required for the validity, enforceability and legality of this Agreement and the other Security Documents and for the performance thereof by the Assignor are appropriately taken by the Assignor and are maintained in full force and effect. |
3.2. No failure or delay on the part of the Bank to exercise any right, power or remedy vested in
it under all or any of the Security Documents will operate as a waiver thereof, nor will any single
or partial exercise by the Bank of any right, power or remedy nor the discontinuance, abandonment
or adverse determination of any proceedings taken by the Bank to enforce any right, power or
remedy, preclude any other or further exercise thereof or preclude proceedings to enforce the same
or the exercise of any other right, power or remedy, nor will the giving by the Bank of any consent
to any act which by the terms of this Deed requires such consent prejudice the right of the Bank to
withhold or give consent to the doing of any other similar act. The rights, powers and remedies
provided in all the Security Documents are cumulative and are not exclusive of any rights, powers
and remedies provided by law, and may be exercised as and when the Bank may deem appropriate and
fit.
4. ASSIGNMENT
4.1. By way of security for payment of the Indebtedness the Assignor agrees to assign and assigns
to the Bank all its rights, title and interest in and to the Assigned Property and all its benefit
and interests present and future therein, provided however that:
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(a) | unless and until an Event of Default occurs: |
i. | any and every moneys recoverable in connection with each particular incident under the contracts of insurance provided for in Clause 4.3.(e) of the Loan Agreement (the “Insurances”) exceeding US$ 200.000 shall be paid to the Bank and the terms of the relevant Loss Payable Clause shall be stipulated accordingly; | ||
ii. | any and every sum recoverable in respect of any casualty (inclusive of deductible) under the Insurances not exceeding US$ 200.000 will be paid to the Assignor but so that the Assignor with the insurance moneys received shall make good and repaired all loss and damage resulting from the casualty. | ||
iii. | All Earnings shall be payable and credited to the Operating Account, in accordance with the Loan Agreement. |
(b) | Upon or after the simple receipt by the Insurer of a written advice of the Bank to the effect that an Event of Default has occurred, any sums recoverable under the Insurances and the Earnings provided for in the Loan Agreement shall be payable to the Bank and be applied in the manner specified in Clause 15 of the Loan Agreement. | |
(c) | Any requisition compensation will at all times be payable to the Bank and be applied in the manner specified in Clause 15 of the Loan Agreement |
4.2. The Assignor covenants with the Bank that it will not, for so long as there is an
Indebtedness, without the previous written consent of the Bank (and then only subject to such terms
as the Bank may impose):
(a) | create or suffer the creation of any Security Interest other than this present on or in respect of the whole or any part of the Assigned Property in favour of any person other than the Bank; or | |
(b) | enter into any agreement or arrangement whereby the receivables may be pooled or shared with any other person. |
4.3. The Assignor hereby covenants and undertakes with the Bank that, upon the execution hereof as
well as upon any other agreement from time to time executed
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by virtue of which the Assignor acquires any right, title or interest whatsoever in and to the
Assigned Property,
i. | it will proceed forthwith at its own expense in serving a written Notice of the Assignment herein contained (in the form annexed hereto as Annex ) upon the persons from whom any part of the Assigned Property is or may be due and forthwith forward by facsimile message or mail a copy of the Acknowledgement of Notice to the Bank and that | ||
ii. | the Assignor will name |
a) on the instruments of insurance from time to time issued in connection
with the insurances provided for in the Loan Agreement or any other of the
Security Documents the Bank as the beneficiary of all and any of the Insurance
moneys
b) on the instruments and/or documents of any and all agreements from time to
time entered into between the Assignor and its agents or any other person acting
in any way in the name and/or behalf of the Assignor and any other party by virtue
of which the Assignor acquires any right, title or interest whatsoever in and to
the Assigned Property the Bank as the Beneficiary of all and any of the respective
moneys.
4.4. Upon the Bank being satisfied that the Indebtedness has been unconditionally and irrevocably
paid and discharged in full, and following a written request therefore from the Assignor, the Bank
will release the security created by this Deed and execute a re-assignment in favour of the
Assignor of the receivables subject to the Bank being indemnified to its satisfaction for the costs
incurred in connection therewith.
5. COVENANTS AND PROTECTIONS
5.1. | The Assignor hereby covenants and undertakes with the Bank that: |
(a) | it will do or permit to be done each and every act or thing which the Bank may from time to time require to be done for the purpose of enforcing the |
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Bank’s rights under this Deed and will allow its name to be used as and when required by the Bank for that purpose; | ||
(b) | it will pay all such expenses, claims, liabilities, losses, costs, duties, fees, charges or other moneys as are stated in this Deed to be payable by the Assignor; | |
(c) | it will pay interest on any such expenses, claims, liabilities, losses, costs, duties, fees, charges or other monies referred to in Clause 5.1.(b) from the date on which same is/are paid or incurred by the Bank until the date of reimbursement thereof to the Bank at the rate described in Clause 8.4. of the Loan Agreement, such interest to be compounded in accordance with Clause 8 of the Loan Agreement and payable on demand. | |
(d) | It will deliver to and provide the Bank with the originals and/or copies as the case may be of any and all documentation (including but not limited to agreements, contracts, policies, cover notes, certificates of entry, e.t.c.) and information in relation to the Assigned Property or incidental thereto whether same was intentionally or incidentally obtained by or became known to the Assignor prior or after the execution of this deed or any other deed, contract or agreement by virtue of which any right, title or interest to or in the Assigned Property is or will be acquired. |
5.2. The Assignor hereby further specifically undertakes at its own expense from time to time to
execute, and/or sign and/or perfect and/or do and/or register every such further assurance,
document, act or thing as in the bona fide and reasonable opinion of the Bank may be necessary or
desirable for the purpose of perfecting the security constituted or intended to be constituted by
this Deed or of exercising any power, authority, right or discretion vested in the Bank under this
Deed.
6. POWERS OF THE BANK
6.1. The Bank will without prejudice to its other rights, powers and remedies under this Deed and
the other Security Documents be entitled (but not bound) at any time and as often as may be
necessary to take any such action (including the right to serve a Notice of Assignment provided for
in Clause 4.3.) as it may in its
8
sole discretion think fit for the purpose of protecting or maintaining the security created by this
Deed and each and every expense, liability and loss (including, without limitation, legal fees) so
incurred by the Bank in or about the protection or maintenance of the said security together with
interest payable thereon under Clause 5.1.(c) will be repayable to it by the Assignor on demand.
6.2. Without prejudice to the provisions of Clause 6.1., the generality of the powers and remedies
vested in the Bank by virtue of the assignment herein contained, or the provisions of the other
Security Documents, the Bank at any time after the occurrence of an Event of Default and
irrespective of whether or not the Bank will have taken steps to enforce any of the powers referred
to in the Security Documents, will become forthwith entitled, as and when the Bank may see fit to
exercise and enforce all or any of the powers possessed as assignee of the Assigned Property and in
particular:
(a) | to require that all records as well as any other documentation then in possession of the Assignor or of any other person acting in the name or behalf of the Assignor relating to the Assigned Property (including details of and correspondence covering outstanding claims) be forthwith delivered to or to the order of the Bank; | |
(b) | to collect, recover, discharge, compound, release or compromise claims that are then outstanding or arise thereafter in respect of the Assigned Property or any part thereof and to take or institute (if necessary using the name of the Assignor, who hereby authorizes the Bank to do so) all such proceedings in connection therewith as the Bank in its sole discretion thinks fit, in the case of the Insurances, to permit any brokers through whom collection or recovery is effected to charge the usual brokerage therefore; | |
(c) | generally, to recover from the Assignor on demand each and every Expense incurred by the Bank in or about or incidental to the exercise by it of any of the aforesaid powers. |
6.3. The Bank will not be obliged to make any inquiry as to the nature or sufficiency of any
payment received by it under this Deed or to make any claim or to take any action to collect any
moneys assigned by this Deed or to enforce any rights and benefits assigned to the Bank by this
Deed or to which the Bank may at any time be entitled hereunder.
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6.4. Neither the Bank nor its agents, managers, officers, employees, delegates and advisers shall
be liable for any expense, claim, liability, loss, cost, damage or expense incurred or arising in
connection with the exercise or purported exercise of any rights, powers and discretions under this
Deed in the absence of willful misconduct.
6.5. The Bank will not by reason of the taking possession of the whole or any part of the Assigned
Property be liable to account as Mortgagee-in-possession or be liable for any loss upon realization
or for any default or omission for which a Mortgagee-in-possession might be liable.
7. FURTHER ASSURANCES
The Assignor will execute and do all such assurances, acts and things as the Bank in its absolute
discretion may require for:-
(a) | perfecting or protecting the security created (or intended to be created) by this Deed; or | |
(b) | preserving or protecting any of the rights of the Bank under this Deed; or | |
(c) | ensuring that the security constituted by this Deed and the covenants and obligations of the Assignor under this Deed shall inure to the benefit of any such assignee of the Bank as is referred to in Clause 10.3.; or | |
(d) | facilitating the appropriation or realization of the Assigned Property or any part thereof in the manner contemplated by this Deed; or | |
(e) | the exercise of any power, authority or discretion vested in the Bank under this Deed in any such case, forthwith upon demand by the Bank and at the expense of the Assignor. |
8. ATTORNEY
By way of security, the Assignor hereby irrevocably appoints the Bank to be its attorney generally
for and in the name and on behalf of the Assignor, and as the act and deed or otherwise of the
Assignor to execute, sign, register (if required), seal
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and deliver and otherwise perfect and do all such deeds, assurances, agreements, instruments, acts
and things which may be required for the full exercise of all or any of the rights, powers or
remedies conferred hereby or which may be deemed proper in or in connection with all or any of the
purposes aforesaid. The power hereby conferred will be a general power of attorney which will also
be executed in favour of the Bank before a Notary Public, at the request of the Bank, and the
Assignor agrees to ratify and confirm any deed, assurance, agreement, instrument, act or thing
which the Bank may execute or do pursuant thereto provided always that such power will not be
exercisable by or on behalf of the Bank until the happening of any Event of Default.
The exercise of such power by or on behalf of the Bank will not put any person dealing with the
Bank upon any inquiry as to whether any Event of Default has happened, or as to whether this Deed
has become enforceable nor shall such person be in any way affected by notice that no such event or
thing has happened, and the exercise by the Bank of such power will be conclusive evidence of its
right to exercise the same.
9. INDEMNITIES AND COSTS
9.1. The Assignor will on demand indemnify and save harmless the Bank and each agent or attorney
appointed under or pursuant to this Deed from and against any and all expenses, claims, losses,
taxes, costs, duties, fees and charges, of whatsoever nature, together with any value added tax or
similar tax payable in respect thereof (including legal fees, of a notary public, fees of bailiff,
fees of insurance advisers, printing and out of pocket expenses), suffered, incurred or made by the
Bank or such agent or attorney:
(a) | in or in connection with the exercise or purported exercise of any rights, powers remedies or discretions vested in it pursuant to this Deed or any other Security or any of them or | |
(b) | in or in connection with the preservation or enforcement or attempt to enforce or preserve of the Bank’s rights under this Deed or any other Security documents or any of them or | |
(c) | in or in connection with the preparation, completion or registration of this Deed or any other Security documents or any of them or |
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(d) | on the release of any part of the Assigned Property from the security created by this Deed, or any other Security Documents or any of them, and the Bank or each such agent or attorney may retain all sums in respect of the above. All such amounts recoverable by the Bank or each such agent or attorney shall be recoverable on a full indemnity basis. |
9.2. If, under any applicable law or regulation, and whether pursuant to a judgment being made or
registered against the Assignor or the liquidation of the Assignor or for any other reason, any
payment under or in connection with this Deed is made or falls to be satisfied in a currency (“the
payment currency”) other than the currency in which any payment under or in connection with this
Deed is due (the “contractual currency”), then to the extent that the amount of such payment
actually received by the Bank, when converted into the contractual currency at the rate of
exchange, falls short of the amount due under or in connection with this Deed, the Assignor, as a
separate and independent obligation, will indemnify in full and hold harmless the Bank against the
amount of such shortfall. For the purposes of this Clause “rate of exchange” means the rate at
which the Bank is able on the date of such payment (or, if it is not practicable for the Bank to
purchase the contractual currency with the payment currency on the date of such payment, at the
rate of exchange as soon afterwards as is practicable for the Bank to do so) to purchase the
contractual currency with the payment currency and will take into account any premium and other
costs of exchange with respect thereto.
9.3. The Assignor will pay to the Bank on demand all reasonable costs, fees and expenses
(including, but not limited to, legal fees and expenses) and Taxes thereon incurred by the Bank in
connection with any variation of, or amendment or supplement to, any of the terms of this Deed
and/or any consent or waiver required from the Bank in relation to this Deed and in each case
regardless of whether the same is actually implemented, completed, or granted, as the case may be.
The Assignor will pay promptly all registration fees, stamp, documentary and other like duties and
taxes to which this Deed or any other Security Documents (or any of them) may be subject or give
rise and will indemnify the Bank on demand against any and all liabilities with respect to or
resulting from any delay or omission on the part of the Assignor to pay any such duties or taxes.
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9.4. In addition to the above the Assignor hereby agrees and undertakes to indemnify the Bank,
against all losses, actions, claims, demands, obligations, liabilities and generally Expenses (as
the term is defined in the Loan Agreement) whatsoever and whenever arising, which may now or
hereafter be incurred by the Bank or by any manager, agent, officer, or employee for whose
liability, act or omission the Bank may be answerable, in respect of, in relation to or in
connection with anything done or omitted in the exercise or purported exercise of the powers
contained in this Deed, or otherwise in connection therewith and herewith or with any part of the
Assigned Property or otherwise howsoever in relation to or in connection with any of the matters
dealt within this Deed or any of the Security Documents.
10. ASSIGNMENTS
10.1. This Deed will be binding upon and will inure to the benefit of the Assignor and the Bank and
their respective successors and permitted assigns and references in the Security Documents or to
either of them shall be construed accordingly.
10.2. The Assignor may not assign any rights and/or obligations hereunder and/or other Security
Documents or any documents executed pursuant thereto without the prior written consent of the Bank,
and then only subject to the terms thereof.
10.3. The Bank may at any time after prior written notice to the Assignor of not less than twenty
(20) days assign all or any part of its rights or transfer all or any part of its rights, benefits
and/or obligations arising or accruing under this Deed and/or any other Security Document or any
documents executed pursuant to this Deed and/or any other Security Document. The Assignor
undertakes, immediately on being requested to do so by the Bank and at the cost of the Bank, to
enter into such documents as may be necessary or desirable to assign or transfer to the Assignee or
Transferee all or the relevant part of the Bank’s interest in this Deed and/or the other Security
Documents and all relevant references in this Deed to the Bank shall thereafter be construed as a
reference to the Bank and/or its Assignee or Transferee (as the case may be) to the extent of their
respective interests. The
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Bank may disclose to a prospective Assignee, Transferee or to any other person who may propose
entering into contractual relations with the Bank in relation to this Deed such information about
the Assignor as the Bank will consider appropriate without the consent of the Assignor subject
however to the Bank.
10.4. The Bank will be at liberty to transfer this Assignment to any other branch or branches it
maintains in Greece or abroad.
11. MISCELLANEOUS
11.1. If at any time any one or more of the provisions of this Deed is or becomes invalid, illegal
or unenforceable in any respect under any law or regulation, in any jurisdiction whatsoever, the
validity, legality and enforceability of the remaining provisions of this Deed shall not in any way
be affected or impaired thereby.
11.2. The Bank, at any time and from time to time, may delegate by power of attorney or in any
other manner to any person or persons all or any of the powers, authorities and discretions which
are for the time being exercisable by the Bank under this Deed in relation to the Assigned Property
or any part thereof. Any such delegation may be made upon such terms and subject to such
regulations as the Bank may think fit. The Bank will not in any way be liable or responsible to
the Assignor for any loss or damage arising from any act, default, omission or misconduct
whatsoever on the part of any such delegate.
11.3. This Deed may be executed in several counterparts, each of which will be an original, but
which together shall constitute but one and the same document.
12. NOTICE
12.1. Save as otherwise provided herein or to such other address and/or numbers as is notified by
one party to the other party hereunder, each notice, request, demand, or other communication to be
given or made hereunder and/or any other Security Document will be given in writing addressed to
the Assignor c/o FREE
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BULKERS S.A., 00 Xxxx Xxxxxxx Xxxxxx, 000 00 Xxxxxxx , Xxxxxx, fax no x00 000 0000000, email
xxxxxxxx@xxxxxx.xx, for the att. of Xx Xxxxxx X. Gourdomichalis and/or Xxxxxxxxxx X.
Gourdomichalis and/or Ion Varouxakis each one or such other address as the Assignor may from time
to time designate by not fewer than ten (10) days’ written notice to the Bank for that purpose,
except in cases of urgency when such notice will be given by telex or facsimile transmission or
other means of telecommunication in permanent written form and confirmed in writing.
12.2. Any notice, request, demand, or other communication to be given or made by the Assignor
hereto will be deemed to have been delivered three (3) Banking Days after having been sent by
first-class registered post prepaid in an envelope addressed as aforesaid or in the case of a
telex, facsimile transmission, or other means of telecommunication in permanent written form, or
delivery by hand such notice will be deemed to have been delivered at the time of dispatch. If the
day of dispatch is not a Banking Day in the country of the addressee it will be deemed to have been
received at the opening of business on the next such Banking Day.
13. GOVERNING LAW AND JURISDICTION
13.1. This Agreement will be governed by and construed in accordance with English Law.
13.2. For the exclusive benefit of the Bank, the Assignor hereby irrevocably submits to the
non-exclusive jurisdiction of the Pireaus Courts. Further, the Assignor agrees that any summons,
writ or other legal process issued against it to the Assignor c/o Xx Xxxx Xxxxxx at 0, Xxxxxxxxxxx
Xxxxxx, 000 00 Xxxxxxx , Xxxxxx, fax no x00 000 0000000 or his successors or to such other address
as the Assignor may have previously notified in writing to the Bank, or their successors, who are
hereby authorized to accept such service, which will be deemed to be good service on the Assignor.
The foregoing will not limit the right of the Bank to start proceedings in any other country or to
serve process in any other manner permitted by law. Finally, the Assignor hereby waives any
objections to the inconvenience of Greece as a forum.
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13.3. If it is decided by the Bank that any such proceedings should be commenced in any other
country, then any objections as to the jurisdiction or any claim as to the inconvenience of the
forum is hereby waived by the Assignor and it is agreed and undertaken by the Assignor to instruct
lawyers in that country to accept service of legal process and not to contest the validity of such
proceedings as far as the jurisdiction of the court or courts involved is concerned.
IN WITNESS whereof the parties hereto have caused this Agreement to be executed the day and year
first above written.
SIGNED by
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) | |||
Stefanos Kardamakis
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) | |||
Xxxxxxxx Xxxxx
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) | |||
duly authorized attorneys-in-fact
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) | |||
for and on behalf of
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) | |||
EGNATIA BANK S.A.
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) | |||
SIGNED by
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) | |||
/s/
[ILLEGIBLE]
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) | |||
) | ||||
duly authorized attorney-in-fact
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) | |||
for and on behalf of
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) | |||
ADVENTURE FOUR S.A.
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) |
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ANNEX
NOTICE OF ASSIGNMENT OF INSURANCES
We ADVENTURE FOUR S.A. having our registered office at Trust Company Complex,
Ajeltake Island, Majuro, The Republic of the Xxxxxxxx Islands (“the Owner”), Owner of the m/v “FREE
FIGHTER” ex “SOUTH GLORY” registered in our name under Panamanian flag with Official Number .............(the “Vessel”) HEREBY GIVE NOTICE that by a Deed of Assignment dated ...... June 2005 entered
into by us with EGNATIA BANK S.A., a bank incorporated in Greece and acting for the purposes hereof
through its Shipping Xxxxxxxxxx xx 000, Xxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxx, (the “Bank”) as
Mortgagee of the Vessel there have been assigned by us to the Bank all insurances in respect
thereof and all benefits arising under the insurances taken or entered into from time to time by
the Owner or for the benefit of the Owner in respect thereof including but not limited to the
insurances constituted by the policy whereon this notice is endorsed or shall be endorsed.
Dated June 2005
For and on behalf of
ADVENTURE FOUR S.A.
ADVENTURE FOUR S.A.
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Loss payable clause
The Loss Payable Clauses to be attached to the Insurances to be
substantially in the following form:
(1) Hull and Machinery (Marine & War Risks): It is
hereby noted that by an assignment dated ......June 2005, ADVENTURE FOUR S.A. of the Republic of The
Xxxxxxxx Islands (“the Owner”), has assigned to EGNATIA BANK S.A. (the Mortgagee) all rights title
and interest in and to all policies and contracts of insurance from time to time taken out or
entered into by or for the benefit of the Owner in respect of the “FREE FIGHTER” ex “SOUTH GLORY”
and all benefits arising thereof including all claims of whatsoever nature (including return of
premiums) thereunder and accordingly:
Save as hereinafter provided, all claims arising under the
Insurances, whether in respect of an actual, constructive, compromised or arranged Total Loss of
the Vessel or otherwise howsoever, shall be payable to the Mortgagee or as it may direct, (provided
that the written consent of the Mortgagee shall be obtained prior to a compromised or arranged
Total Loss being agreed with the Insurers) and provided always that unless and until written notice
to the contrary has been received from the Mortgagee, claims (other than Total Loss claims) not
exceeding United States Dollars two hundred thousand (US$200,000) or its equivalent in any other
currency (inclusive of any deductible) in respect of any one claim may be paid to the Owner or its
order.
(2) Protection and Indemnity Risks: Payment of any recovery in respect of protection
and indemnity risks which ADVENTURE FOUR S.A. of the Republic of The Xxxxxxxx Islands (the “Owner”)
is entitled to make out of the funds of the Insurers in respect of any liability, costs or expenses
incurred by the Owner, shall be made to the Owner or to its order unless and until the Insurer
receives notice to the contrary from EGNATIA BANK S.A. (the “Mortgagee”) in which event all
recoveries shall thereafter be paid to the Mortgagee or to its order; provided that no liability
whatsoever shall attach to the Insurers or its agents for failure to comply with the latter
obligation until the expiry of two clear business days from the receipt of such notice.
18
NOTICE OF ASSIGNMENT OF EARNINGS
We ADVENTURE FOUR S.A. having our registered office at Trust Company Complex, Ajeltake
Island, Majuro, The Republic of the Xxxxxxxx Islands (“the Owner”), Owner of the m/v “FREE FIGHTER”
ex “SOUTH GLORY” registered in our name under Panamanian flag with Official Number ............. (the
“Vessel”) HEREBY GIVE NOTICE that by a Deed of Assignment dated .......June 2005 entered into by us with
EGNATIA BANK S.A., a Bank incorporated in Greece and acting for the purposes hereof through its
Shipping Xxxxxxxxxx xx 000, Xxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxx, (the “Bank”) as Mortgagee of the
Vessel there have been assigned by us to the Bank all insurances in respect thereof and all
earnings of the Vessel whatsoever, due or to become due for our account at any time during the
period commencing on the date this present notice is received by you and terminating on the date
upon which you receive a notice to that effect by the Bank, arising out of the use, or operation of
the Vessel, including all freight, hire and passage moneys, compensation payable to the us in the
event of requisition of the Vessel for hire, remuneration for salvage and towage services,
demurrage and detention moneys, contributions of any nature whatsoever in respect of general
average, damages for breach (or payments for variation or termination) of any charter party or
other contract for employment of the Vessel and any other earnings whatsoever due or to become due
to us in respect of the Vessel.
Dated June 2005
For and on behalf of
ADVENTURE FOUR S.A.
ADVENTURE FOUR S.A.
19
INDEX
CLAUSE | PAGE | |||
1. DEFINITIONS |
2 | |||
2. CONTINUING REPRESENTATIONS AND WARRANTIES |
3 | |||
3. PRESERVATION OF SECURITY AND OTHER PROVISIONS |
3 | |||
4. ASSIGNMENT |
4 | |||
5. COVENANTS AND PROTECTIONS |
6 | |||
6. POWERS OF THE BANK |
7 | |||
7. FURTHER ASSURANCES |
9 | |||
8. ATTORNEY |
9 | |||
9. INDEMNITIES AND COSTS |
10 | |||
10. ASSIGNMENTS |
12 | |||
11. MISCELLANEOUS |
13 | |||
12. NOTICE |
13 | |||
13. GOVERNING LAW AND JURISDICTION |
14 |